Schell v. Young

• Decision Date: 04 June 2021
• Docket Number: 2020-CA-0282-MR, NO. 2020-CA-0300-MR
• Citation: 640 S.W.3d 24
• Parties: Michael SCHELL, Appellant v. Troy L. YOUNG and City of Lawrenceburg, Kentucky, Appellees Robert T. Hume, Appellant v. Troy L. Young and City of Lawrenceburg, Kentucky, Appellees
• Court: Kentucky Court of Appeals

640 S.W.3d 24

Michael SCHELL, Appellant

v.Troy L. YOUNG and City of Lawrenceburg, Kentucky, Appellees

Robert T. Hume, Appellant

v.Troy L. Young and City of Lawrenceburg, Kentucky, Appellees

NO. 2020-CA-0282-MR

NO. 2020-CA-0300-MR

Court of Appeals of Kentucky.

JUNE 4, 2021; 10:00 A.M.

Discretionary Review Denied by Supreme Court March 16, 2022

BRIEFS FOR APPELLANTS: Scott A. Crosbie, Nicholas A. Oleson, Lexington, Kentucky.

BRIEFS FOR APPELLEES: Donald M. Wakefield, Lexington, Kentucky.

BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.

OPINION

THOMPSON, K., JUDGE:

The day after being sworn in as Mayor of Lawrenceburg, Kentucky, Troy Young terminated without cause the employment of Lawrenceburg Chief of Police Michael Schell and Lawrenceburg City Clerk/City Administrator Robert T. Hume. Schell and Hume brought separate suits contesting their terminations in the Anderson Circuit Court, but each case was dismissed for failure to state viable claims upon which relief may be granted. Schell and Hume each appealed.¹

We reverse in part because Young, as Mayor, did not have the discretion to terminate these two city officers’ employment without cause; Lawrenceburg Ordinances gave its Chief of Police and City Clerk two-year terms, thereby removing the holders of those offices from the Mayor's otherwise broad discretionary ability to terminate city employees, and declaratory relief is available for such violations. However, we affirm in part because some of the other claims brought by Schell and Hume are not viable.

Factual and Procedural History

Schell was appointed Chief of the Lawrenceburg Police Department in March 2018. Young was elected Mayor of Lawrenceburg in early November 2018. Later that month, Mayor-Elect Young sent Schell a one-sentence letter stating in its entirety: "Your services will no longer be needed as of January 1, 2019." In early December 2018, Hume was appointed to another term as Lawrenceburg's City Clerk/City Administrator.

In late December 2018, Schell's counsel sent Young a letter opining that terminating Schell in January 2019 without cause would be improper for several reasons, one of which was a belief that Schell was entitled to serve a full two-year term under Lawrenceburg Ordinance § 34.01,² which provides in relevant part that "[t]he Chief of Police shall be appointed by the Mayor at the first regular meeting after the new members of the City Council take office, for a term of two years and until his successor is appointed." Ordinance § 30.23(A) similarly provides that "[t]he [City] Clerk shall be appointed by the Mayor at the first regular meeting after the new members of the City Council take office, for a term of two years and until his successor is appointed."

Undeterred, on January 2, 2019, one day after taking office, Mayor Young terminated Schell and Hume. The termination letters for each are essentially identical, except for the differences noted in brackets:

Section 30.21(A)^[3] of the Lawrenceburg Code authorizes me, as mayor, to appoint all non-elected city officers, including Chief of Police [City Clerk and City Administrator], subject to approval by the City Council. On January 14, 2019, I will offer my choice of candidate for Chief of Police [City Clerk/City Administrator] to the City Council.

Section 30.21(B) of the Lawrenceburg Code authorizes me to remove the Chief of Police [City Clerk/City Administrator] at will, but requires that I give a reason for removal. Because I believe that morale at the Lawrenceburg Police Department [city hall] would be adversely affected by the continued presence of a Chief of Police [any non-elected officer] who is not being retained, your removal from the position of Chief of Police [City Clerk/City Administrator] is effective immediately.

A week later, Schell filed a ten-count complaint against Young, individually and in his official capacity, and Lawrenceburg. On the same date and via the same counsel, Hume filed a seven-count complaint against the same defendants.

Schell and Hume each alleged that their terminations violated their ordinance-based right to a two-year term of office (for Schell, Ordinance § 34.01 and for Hume, Ordinance § 30.23(A)) and Ordinance § 30.35(A), which provides in relevant part that the "policies and procedures on file in the City Clerk's Office is [sic] adopted by reference and shall be the system of human resources administration for the city." Specifically, Lawrenceburg's Personnel Policies and Procedures (PPP) provides in relevant part in its foreword that "all references to employee shall include non-elected officers," and PPP Part III(A)(4) provides that "[u]nless serving a probationary period, an employee may be dismissed from the city service for just-cause only." In short, each asserted they could only have been properly dismissed, at least during their two-year terms, for cause.

Additionally, Schell alleged three police officer-centered claims that his termination violated: (1) Ordinance § 34.03, which provides in relevant part that "[n]o member of the police department shall be removed from the department or reduced in rank upon any reason except inefficiency, misconduct, insubordination or violation of law, or violation of the rules adopted for the department"; (2) Kentucky Revised Statutes (KRS) 95.450(2), which provides in relevant part that "no member of the police ... department in cities listed on the registry pursuant to subsection (9) of this section ... shall be ... dismissed ... for any reason except inefficiency, misconduct, insubordination or violation of law or of the rules adopted by the legislative body"; and (3) KRS 15.520, which is colloquially known as the police officer bill of rights and provides process for discipline and dismissal for misconduct.

Schell and Hume further alleged wrongful termination, tortious interference with the ability to earn money, outrage/intentional infliction of emotional distress (IIED), and that each plaintiff's dismissal was an arbitrary exercise of power in violation of Section 2 of the Kentucky Constitution, which provides that "[a]bsolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority."

Schell and Hume each sought punitive damages, declaratory relief, reinstatement, back pay, damages, and attorney fees. They attached their respective January 2, 2019 dismissal letters and Lawrenceburg's PPP to their complaints. Schell also attached the Lawrenceburg Police Department's grievance procedures.

In lieu of an answer, Lawrenceburg and Young jointly filed motions to dismiss both complaints. They argued: the claims against Young in his official capacity were redundant of claims against Lawrenceburg, Young was entitled to qualified official immunity, and none of the statutes and ordinances relied upon by Schell and Hume altered the at-will nature of their employment. They further argued the wrongful termination, tortious interference with the ability to earn money, IIED, and Section 2 of the Kentucky Constitution claims failed as a matter of law; punitive damages were unavailable; and neither plaintiff was entitled to attorney fees.

Schell and Hume each filed a lengthy response. Attached to Schell's response were two pre-termination letters not attached to his complaint or the motion to dismiss. First, Schell attached the November 2018 one-sentence letter from Young informing Schell that his services "will no longer be needed as of January 1, 2019." Second, Schell attached the responsive December 29, 2018, letter from his counsel to Young opining as to why counsel believed it would be improper for Young to dismiss Schell. The circuit court did not explicitly exclude the letters from its consideration of the motion to dismiss Schell's complaint.

In February 2020, over ten months after briefing concluded, the circuit court issued an opinion and order in each case granting each motion to dismiss each complaint in its entirety. The circuit court found there to be "no support for the conclusion that Schell [or Hume] had a contract or a guarantee of a two-year term of employment, as he was subject to at will removal in the discretion of the Mayor[ ]" and concluded that "Kentucky provides for no private right of action to enforce an ordinance" so "the alleged violations of City ordinances are hereby dismissed for failure to state a claim upon which relief can be granted."

The circuit court also dismissed Schell's police officer-related claims, concluding that KRS 95.450 did not apply to Lawrenceburg and KRS 15.520 did not apply because no complaints were filed against Schell.

The circuit court dismissed Schell's and Hume's claims regarding violation of Section 2 of the Kentucky Constitution because "there is no private right of action for violation of the Kentucky Constitution."

The circuit court found the wrongful termination claims failed because neither Schell nor Hume had shown that "his removal was contrary to any statute, ordinance or constitutional provision[,]" and the tortious interference with the ability to earn money claims failed because "this cause of action does not exist in Kentucky[.]"

The circuit court also ruled that "[m]ere termination from employment" was insufficient to constitute actionable IIED and punitive damages may not be imposed upon a municipality.

The circuit court ruled that the official capacity claims against Young in both cases were redundant as they were "essentially a claim against the City, the entity he represents" and Young was entitled to qualified official immunity for the individual capacity claims against him because there was "no indication" that his firing of either plaintiff "was not done in good faith."

Schell then filed appeal 2020-CA-0282-MR; Hume filed appeal 2020-CA-0300-MR.

On appeal, Hume and Schell do not contest the dismissal of: their official capacity claims against Young, their tortious interference with the ability to earn money claims, and their ...