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Commonwealth Of Kentucky

Court Of Appeals

NO. 1999-CA-000867-MR

LARRY BUSH APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT

v. HONORABLE EDWIN A. SCHROERING, JR, JUDGE
ACTION NO. 98-CI-007002

CITY OF PROSPECT, KENTUCKY APPELLEE

OPINION
AFFIRMING
** ** ** ** **

BEFORE: BUCKINGHAM, GUIDUGLI AND HUDDLESTON, JUDGES.

GUIDUGLI, JUDGE. Larry Bush ("Bush") appeals from a summary
judgment of the Jefferson Circuit Court in his action against the
City of Prospect, in which he alleged that the City violated KRS

15.520 by depriving him of an employment termination hearing. We
find no error in the entry of summary judgment, and accordingly
affirm.

Bush was employed as a police officer with the City of
Prospect. On or about November 20, 1998, he received a letter
from Mayor Lawrence C. Falk ("Falk") alleging that he failed to
properly carry out his duties on November 17, 1998. Falk
suspended Bush without pay effective November 20, 1998. The

letter advised Bush of a hearing on the matter to be conducted
three days later.

On November 23, 1998, the hearing was conducted before
Falk. Bush was present, as was his counsel. Some time shortly
after the hearing, Bush's employment was terminated.

Bush then filed the instant action in Jefferson Circuit
Court. He alleged therein that the November 23, 1998 hearing did
not comply with KRS 15.520 and that due process requires that he
have both pre-termination and post-termination hearings. The
City of Prospect responded with a motion to dismiss, which was
treated by the court as a motion for summary judgment. Upon
considering the motion, the circuit court concluded that the City
had complied with KRS 15.520. It rendered a memorandum and order
on March 31, 1999 granting the motion, and a summary judgment was
entered. This appeal followed.

Bush now argues that the Jefferson Circuit Court erred
in granting the City's motion to dismiss. Specifically, he
maintains that KRS 15.520 requires a post-dismissal hearing when
a police officer is charged with misconduct or rule violations.
Since no such hearing was conducted, he seeks to have the
judgment reversed and remanded with instructions that he be
reinstated.

We have closely studied the record, the law, and the
arguments of counsel, and find no error. KRS 15.520(1)(h)
states:

When a hearing is to be conducted by any
appointing authority, legislative body, or
other body as designated by the Kentucky
Revised Statutes, the following
administrative due process rights shall be

recognized and these shall be the minimum
rights afforded any police officer charged:

1.
The accused police officer shall have been
given at least seventy-two (72) hours notice
of any hearing;


2.
Copies of any sworn statements or
affidavits to be considered by the hearing
authority and any exculpatory statements or
affidavits shall be furnished to the police
officer no less than seventy-two (72) hours
prior to the time of any hearing;


3.
If any hearing is based upon a complaint
of an individual, the individual shall be
notified to appear at the time and place of
the hearing by certified mail, return receipt
requested;


4.
If the return receipt has been returned
unsigned, or the individual does not appear,
except where due to circumstances beyond his
control he cannot appear, at the time and
place of the hearing, any charge made by that
individual shall not be considered by the
hearing authority and shall be dismissed with
prejudice;


5.
The accused police officer shall have the
right and opportunity to obtain and have
counsel present, and to be represented by the
counsel;


6.
The appointing authority, legislative
body, or other body as designated by the
Kentucky Revised Statutes shall subpoena and
require the attendance of witnesses and the
production by them of books, papers, records,
and other documentary evidence at the request
of the accused police officer or the charging
party. If any person fails or refuses to
appear under the subpoena, or to testify, or
to attend, or produce the books, papers,
records, or other documentary evidence
lawfully required, the appointing authority,
legislative body, or other body as designated
by the Kentucky Revised Statutes may report
to the Circuit Court or any judge thereof the
failure or refusal, and apply for a rule. The
Circuit Court, or any judge thereof, may on
the application compel obedience by
proceedings for contempt as in the case of
disobedience of the requirements of a
subpoena issued from the court;


7.
The accused police officer shall be
allowed to have presented, witnesses and any
documentary evidence the police officer
wishes to provide to the hearing authority,
and may cross-examine all witnesses called by
the charging party;


8.
Any police officer suspended with or
without pay who is not given a hearing as
provided by this section within sixty (60)
days of any charge being filed, the charge
then shall be dismissed with prejudice and
not be considered by any hearing authority
and the officer shall be reinstated with full
back pay and benefits; and


9.
The failure to provide any of the rights
or to follow the provisions of this section
may be raised by the officer with the hearing
authority. The hearing authority shall not
exclude proffered evidence based on failure
to follow the requirements of this section
but shall consider whether, because of the
failure, the proffered evidence lacks weight
or credibility and whether the officer has
been materially prejudiced.



Our review of the record indicates that the City

complied with all relevant provisions of KRS 15.520(1)(h). As

the circuit court properly noted, Bush was given at least 72

hours notice of the hearing (KRS 15.520(1)(h)(1)); there was no

exculpatory evidence offered (KRS 15.520(1)(h)(2)); the

complainant, Falk, was present at the hearing (KRS

15.520(1)(h)(3) & (4)); Bush was represented by counsel (KRS

15.520(1)(h)(5)); Bush sought no subpoenas for witnesses or

evidence (KRS 15.520(1)(h)(6)); and, Bush was availed of the

opportunity to present witnesses and evidence, and cross-examine

all witnesses of the charging party (KRS 15.520(1)(h)(7)). It is

clear that Bush received each of the procedural safeguards set

forth in KRS 15.520(1)(h).

Bush argues that the November 23, 1998 hearing is
properly characterized as a pre-termination hearing, and that he
was not given the post-termination hearing to which he was
entitled. Bush, however, does not cite any language in KRS

15.520 requiring a post-termination hearing, and our research has
not uncovered any such language.

Bush goes on to direct our attention to Cleveland Board
of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84
L.Ed.2d 494 (1985),in support of his assertion that he was
entitled to a post-termination hearing. We are not persuaded by
Bush's reliance on Loudermill in that Loudermill interpreted an
Ohio statute requiring a post-termination hearing. KRS 15.520
requires no such hearing.

In sum, Bush received each of the procedural safeguards
set forth in KRS 15.520, and was not entitled to a post

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