JOHN KEABLER v. CITY OF ELIZABETHTOWN, KENTUCKY; AND CITY OF ELIZABETHTOWN CIVIL SERVICE COMMISSION
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RENDERED: DECEMBER 22, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002832-MR
JOHN KEABLER
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE HUGH ROARK, JUDGE
ACTION NO. 97-CI-01412
v.
CITY OF ELIZABETHTOWN, KENTUCKY;
AND CITY OF ELIZABETHTOWN CIVIL
SERVICE COMMISSION
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON AND MILLER, JUDGES.
JOHNSON, JUDGE:
John Keabler has appealed from the decision of
the Hardin Circuit Court entered on October 29, 1999, which
affirmed the ruling of the Elizabethtown Civil Service Commission
upholding the decision of Police Chief, Ruben Gardner, to demote
Keabler from the rank of Sergeant to that of Patrolman.
On
appeal, Keabler argues that the Circuit Court erred in concluding
(1) that he had waived his right to a hearing before the
Commission within 60 days as provided in KRS1 15.5202, (2) that
the City complied with the requirement to give notice to the
Commission within the time constraints mandated by KRS 90.360,
and (3) that the Commission’s findings were supported by
substantial evidence.
Having concluded that no error occurred,
we affirm.
The events leading to Keabler’s demotion occurred on
June 10, 1997.
On that day, a nine-year old boy was brought to
the police station and detained after it was reported to police
that he was attempting to break into vehicles parked in a lot
near a local business.
The child was obviously hyperactive and
refused to cooperate with the officers or to answer their
questions designed to elicit basic information such as his name,
age and address.
The child was placed in an interrogation room
with Officer Mark Johnson and constantly climbed onto furniture
and handled the equipment.
The testimony of various officers, as
well as the video recording of the activity in the interrogation
room, reveal that Officer Johnson was not successful in his
efforts to control the child.
Several officers, including Keabler, were standing
outside of the interrogation room.
Although not asked to assist
with the juvenile, Keabler went inside the room and, using a loud
voice and a harsh tone, cautioned the child as follows:
1
Kentucky Revised Statutes.
2
This statute is commonly referred to as the “Police
Officer’s Bill of Rights.” City of Munfordville v. Sheldon, Ky.,
977 S.W.2d 497 (1998).
-2-
You sit your ass down in that chair and shut
your mouth or I’m going to knock the shit out
of you. You understand me? I’m tired of your
shit. Now, don’t you come in here doing
that. Now, you sit down here and act like
you’ve got some sense.
At this point, Keabler was interrupted by the Acting
Chief, Mark Sharman, who told Keabler to go back to his own
office.
Keabler did not immediately obey Sharman’s order, but
attempted to explain to Sharman what was happening.
Sharman was
not interested in hearing what Keabler had to say, and twice more
ordered Keabler to return to his office.
Sharman testified that
Keabler’s face was red and his fists were clinched.
Two days
later, Chief Gardner informed Keabler that he would be suspended
pending an investigation of the incident.
Upon the conclusion of the investigation, Keabler was
found by Chief Gardner to be in violation of multiple sections of
the police department’s policies, including the failure to “use
discretion, tact and control” when dealing with the juvenile,
mistreating persons in custody, and being insubordinate when he
was ordered to remove himself from the situation.
In addition to
being demoted, Keabler was advised to seek counseling for “anger
and rage control.”
Over the next several weeks, Keabler, through his
attorney, attempted to reach a different result with respect to
the discipline imposed by Chief Gardner.
However, when it became
apparent that the Chief would not alter his stance, Keabler
demanded a hearing.
On July 28, 1997, the City informed the
Civil Service Commission of the demotion and of the fact that
Keabler desired a hearing.
The Chairman of the Commission wrote
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to the parties’ attorneys to suggest that the three of them get
together to set the hearing date.
The hearing was conducted on
August 27, 1997 (77 days after Keabler’s suspension), and the
Commission rendered its ruling and adopted the findings and
punishment of Keabler imposed by Chief Gardner the next day.3
Keabler obtained new counsel and pursued an appeal of
the Commission’s decision in the Hardin Circuit Court.
For the
first time, Keabler raised an issue concerning the timing of the
hearing, and the City’s failure to notify the Commission of the
charges against him within a reasonable time as required by KRS
90.360(2).
The Circuit Court determined that Keabler waived any
right to a hearing within 60 days of his suspension or demotion
as he made no objection prior to, or at the time of, the hearing.
Further, the Circuit Court concluded that the Commission’s ruling
3
The ruling reads in part as follows:
The Commission feels, finds, and
adjudicates by a preponderance of the
evidence that Officer Keabler, on June 10,
1997, was verbally abusive to the juvenile in
question and that his further actions
amounted to insubordination of a superior
officer.
Officer Keabler, otherwise has had a
rather exemplary carreer [sic] with the
Elizabethtown Police Department and the
Commission regrets that this incident mars
his carreer [sic] to any extent, but
nevertheless the Commission does not feel
that it can support or countenance the
conduct exhibited by the Officer in question
on June 10, 1997, and believes that a higher
standard of conduct should be expected of all
officers in uniform of the Elizabethtown
Police Department above what was exhibited by
Officer Keabler on June 10, 1997.
-4-
was supported by substantial evidence.
In this regard, the
Circuit Court reasoned that
[m]ore than one police officer testified that
they believed Officer Keabler’s conduct to be
improper and worthy of the punishment he
received. It is undisputed that he used
profane language in threatening the child and
had to be given an order three times by a
superior officer before he obeyed it. This
evidence makes the Commission’s conclusions
reasonable and supported by substantial
evidence.
Following the Circuit Court’s affirmance of the Commission’s
ruling, Keabler sought further review in this Court.
As his first argument, Keabler insists that the Circuit
Court erred in concluding that he waived his right to an
evidentiary hearing within 60 days of either the date he was
suspended, June 12, 1997, or the date he was charged with
misconduct and demoted, June 26, 1997, as required by KRS
15.520(1)(h)(8).
This statute provides:
In order to establish a minimum system of
professional conduct of the police officers
of local units of government of this
Commonwealth, the following standards of
conduct are stated as the intention of the
General Assembly to deal fairly and set
administrative due process rights for police
officers of the local unit of government and
at the same time providing a means for
redress by the citizens of the Commonwealth
for wrongs allegedly done to them by police
officers covered by this section:
. . .
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:
-5-
. . .
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[.]
Relying on City of Munfordville,4 and the fact that the hearing
that was ultimately conducted on August 27, 1997, was outside the
60-day window from either Keabler’s suspension on June 12, or his
demotion on June 26, Keabler contends that he is entitled, as a
matter of law, to have the charges against him dismissed and to
be reinstated to his former position of sergeant.
The City responded to this same argument in the Circuit
Court by arguing that Keabler waived the 60-day time limit in two
ways: (1) by his attorney agreeing to the hearing date being
outside the time limit; and, (2) by his failure to raise any
issue with respect to the timeliness of the hearing before the
Commission.
Keabler has never contested the fact that his
counsel agreed to the hearing date being beyond the 60-day time
period proscribed by KRS 15.520(1)(h)(8).
Nor is there any
dispute, as the transcript of the hearing reveals, that this
issue was not raised at any time before the Commission.
Thus,
confronted with an obvious waiver, Keabler asserts in his brief
filed in this Court that he should not be bound by the actions of
his attorney.
His attorney argues that
4
Unlike Keabler, the officer fired in Munfordville was not
afforded any of the due process rights contained in KRS 15.520,
nor does that case involve an issue of waiver.
-6-
[i]naction or silence by Sgt. Keabler through
his then counsel should not constitute a
waiver of his right to a timely hearing as
provided in the statutes. A waiver of due
process rights must be clear and unequivocal.
Keabler’s acquiescence through his then
attorney, in the setting of a hearing date
beyond the sixty (60) days allowed by statute
should not be found to be an implied waiver
of his statutory right to a hearing within
sixty (60) days. . . .
[T]he implicit waiver of the sixty (60) day
hearing requirement as propounded by [the
City] was without [Keabler’s] consent,
knowledge or approval. As submitted in
[Keabler’s] brief herein, Sgt. Keabler never
voluntarily or knowingly waived his right to
a timely hearing. In addition, [the City]
never sought or obtained a waiver from Sgt.
Keabler of the mandatory hearing requirement.
The weakness of this argument is obvious.
First, since
the issue was not raised at the Commission level, there is no
evidence of record of Keabler’s awareness, or lack thereof, of
his rights pursuant to KRS 15.520, and thus no evidence of
whether he knowingly waived his right to a hearing within 60 days
of his suspension or demotion.
More fundamentally, it is settled
that a litigant is bound by the actions of their legal counsel
performed within the scope of their authority.5
Even in criminal
cases where liberty interests are in jeopardy, due process rights
are subject to waiver by one’s attorney.
For example, in discussing whether defense counsel’s
agreement to a trial date outside the time limits mandated by the
5
See Clark v. Burden, Ky., 917 S.W.2d 574, 575-76 (1996)
(although the Court held that “express client authority” was
required before an enforceable settlement agreement comes into
existence, it recognized that generally an attorney is an agent
for the client with broad power to act for and on the client’s
behalf).
-7-
Interstate Agreement on Detainers constituted a waiver of
defendant’s right to a speedy trial, the United States Supreme
Court held as follows:
We have, however, “in the context of a broad
array of constitutional and statutory
provisions,” articulated a general rule that
presumes the availability of waiver, and we
have recognized that “[t]he most basic rights
of criminal defendants are . . . subject to
wavier[.]” . . .
What suffices for waiver depends on the
nature of the right at issue. . . . For
certain fundamental rights, the defendant
must personally make an informed waiver. For
other rights, however, waiver may be effected
by action of counsel. “Although there are
basic rights that the attorney cannot waive
without the fully informed and publicly
acknowledged consent of the client, the
lawyer has — and must have — full authority
to manage the conduct of the trial.” As to
many decisions pertaining to the conduct of
the trial, the defendant is “deemed bound by
the acts of his lawyer-agent and is
considered to have ‘notice of all facts,
notice of which can be charged upon the
attorney.’” Thus, decisions by counsel are
generally given effect as to what arguments
to pursue, what evidentiary objections to
raise, and what agreements to conclude
regarding the admission of evidence[.] . . .
Scheduling matters are plainly among
those for which agreement by counsel
generally controls [citations omitted].6
Clearly, Keabler’s argument that the City or the
Commission should have obtained his personal waiver to a hearing
outside the 60-days mandated by KRS 165.520, is simply untenable.
Likewise, his contention that the Circuit Court erred in
6
New York v. Hill, 528 U.S. 110, 120 S.Ct. 659, 664, 145
L.Ed.2d 560, 566-67 (2000).
-8-
concluding that he waived his right to a hearing within 60 days
is without merit.
Next, Keabler argues that the City failed to comply
with the provisions of KRS 90.360(2), which provides:
Any person may prefer charges in writing
against any employee by filing them with the
mayor or other appointing authority who shall
communicate the charges without delay to the
civil service commission of the city. The
charges must be signed by the person making
them and must set out clearly each charge.
The appointing authority shall, whenever
probable cause appears, prefer charges
against any employee whom he believes guilty
of conduct justifying his removal. Upon the
filing of charges the clerk of the civil
service commission shall notify its members
and serve a copy of the charges upon the
accused employee with a statement of the
date, place and hour at which the hearing of
charges will begin, this hearing not to be
held within three (3) days of the date of the
service of charges upon the accused employee.
The day on which the charges are served on
the accused employee shall count as one (1)
of the days of notice. The person accused
may in writing waive the service of charges
and demand trial within three (3) days after
they have been filed with the clerk of the
civil service commission.
It is Keabler’s argument that the statute required the
City, through its Police Chief, to report the charges which
resulted in his demotion to the Commission “without delay,” and
that by doing so on the thirty-second day, the City failed to so
comply.
Assuming that this statute has any application to the
case sub judice, Keabler does not suggest how he was prejudiced
by the failure to report the matter to the Commission sooner.
Certainly, when the Commission was ultimately informed of the
-9-
charges on July 28, 1997, there was sufficient time remaining to
conduct a hearing within the 60-day window.7
In any event, we do not believe this statute has any
application to the instant case.
KRS 90.360 concerns adverse
employment actions against employees of second or third class
cities.8
KRS 15.520, a later enacted statute which provides
procedures specific to hearings in the event a police officer is
charged with misconduct, is the statute governing the rights
afforded to Keabler.9
As discussed earlier, Keabler was either
afforded all the rights provided to him by KRS 15.520, or, in the
case of the timeliness of the hearing, the right was waived.
Finally, Keabler argues that the Circuit Court erred in
its determination that the Commission’s action upholding his
demotion was supported by substantial evidence.
He insists that
although his actions and conduct
may [have been] inconsistent with the rules
and regulations of the Elizabethtown Police
Department, his act of shouting at the
juvenile and using profanity to accomplish an
end consistent with the best interests of the
7
In his brief Keabler suggests that “it should be clear to
this reviewing Court that the primary reason a hearing was not
conducted within sixty (60) days of the demotion was Chief
Gardner’s failure to timely communicate his charges against Sgt.
Keabler to the Civil Service Commission.” However, it is not
clear to this Court that the delay was the “primary” reason for
the failure of the Commission to conduct its hearing within the
limit constraints of KRS 15.520. For all we know, since the
issue was not raised below, the hearing may have been scheduled
on August 27, for the convenience of Keabler or his attorney.
8
KRS 90.360(1).
9
See Shannon v. Burke, 276 Ky. 773, 125 S.W.2d 238, 239
(1939) (conflict, if any, between two statutes must be resolved
by following “the later statute dealing with the specific
subject”).
-10-
Elizabethtown Police Department simply does
not rise to the level of a career ending
demotion.
The evidence does reveal that Keabler had an exemplary
career, untainted by any disciplinary action prior to June 1997.
Further, we have no reason to doubt his testimony that his
treatment of the juvenile was motivated by a desire to prevent
the child from either hurting himself, or destroying property
belonging to the department.10
However, even if we believed that
his decision to use profane words to get the juvenile’s attention
did not rise to the level of misconduct sufficient to warrant a
demotion in rank, Keabler’s argument overlooks the charge, and
the Commission’s finding, that he was insubordinate and refused
to obey his superior officer’s command that he leave the area and
go to his office.
The evidence was uncontradicted that the
Acting Chief had to tell Keabler three times to go to his office
10
Keabler testified at the hearing as follows:
Well, he was still acting up pretty well and
he was moving around and trying to get out
and well, Officer Johnson was having a pretty
hard time with him. I was not mad when I
entered the room and told the boy what I told
him. The only reason I did that was to try
to get about one step above the way he was
acting to try to get him to settle down. He
could have hurt himself by the things he was
doing; he could have torn up equipment in the
room. I was not mad at the boy, the boy
didn’t say one word to me, he didn’t say
anything to me. This was just my attempt to
get him to at least cooperate, settle down
and maybe save us from losing some equipment
or maybe from the boy hurting himself. . . I
was merely using a tactic that’s used lots of
times by Police Departments and Police
Officers to attempt to get somebody under
control somewhat.
-11-
before Keabler complied.
This behavior distinguishes this case
from Kentucky Board of Nursing v. Ward,11 upon which Keabler
relies.
We do not believe that it can be concluded that the
Commission’s determination that Keabler’s behavior was
insubordinate was unreasonable, and thus, arbitrary.
Likewise,
the Circuit Court’s decision affirming the Commission’s decision
was not clearly erroneous.12
Accordingly, the opinion of the Hardin Circuit Court is
affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Mark L. Miller
Louisville, KY
Jerry M. Coleman
Elizabethtown, KY
11
Ky.App., 890 S.W.2d 641 (1994) (conduct of nurse who,
using a stern tone of voice, told an elderly patient,”If you
don’t sit down and be quiet, I will take you to your room and tie
you in the bed and you won’t be able to get up,” held not to
constitute verbal abuse of patient sufficient to establish
unfitness to provide nursing).
12
See Crouch v. Jefferson County, Kentucky Police Merit
Board, Ky. 773 S.W.2d 461, 464 (1989) (judicial review of an
adverse employment action affecting a police officer is limited
to the question of arbitrariness, that is whether the board’s
decision is clearly unreasonable).
-12-
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