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Inc. v. Louisville/Jefferson County Metropolitan Government Acting Through Its Police Department

Court of Appeals of Kentucky

February 1, 2019

RIVER CITY FRATERNAL ORDER OF POLICE LODGE 614, INC. APPELLANT
v.
LOUISVILLE/JEFFERSON COUNTY METROPOLITAN GOVERNMENT ACTING THROUGH ITS POLICE DEPARTMENT APPELLEE

          APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE MITCHELL PERRY, JUDGE ACTION NO. 16-CI-000757

          BRIEFS FOR APPELLANT: David Leightty Louisville, Kentucky

          BRIEF FOR APPELLEE: Walter A. Sholar Louisville, Kentucky

          BEFORE: JONES, NICKELL AND TAYLOR, JUDGES.

          OPINION

          NICKELL, JUDGE.

         River City Fraternal Order of Police Lodge 614, Inc. ("FOP")[1] appeals from an opinion and order entered by the Jefferson Circuit Court on January 18, 2018, denying FOP's motion for summary judgment and dismissing its breach of contract claims against Metro. FOP alleges Metro twice violated the Collective Bargaining Agreement ("CBA") which restricts the age of prior disciplinary actions which may be considered in punishing a Metro police officer for a current incident. FOP maintains the proper remedy for Metro's violations- as suggested by an "advisory" arbitrator-is reinstatement of Metro Police Officer Kristen Shaw with back pay and benefits. Metro amended its custom of forwarding to decision-makers all reprimands and suspensions rather than a maximum of five years of punishment as allowed by the CBA, and considered reinstating Shaw, but ultimately rejected any reduction in penalty. Having reviewed the briefs, law and record, we affirm.

         FACTS AND PROCEDURAL BACKGROUND

         On August 13, 2013, multiple Metro police units responded to an emergency dispatch at a private residence. On arrival, they discovered a physical altercation between two off-duty law enforcement officers. After the disturbance, Chief of Police Steve Conrad fired Shaw on June 18, 2014.[2] Represented by FOP, Shaw appealed her dismissal to the Louisville Metro Police Merit Board ("Board") which upheld the termination after a two-day hearing.[3]

         In advance of the Board hearing, Shaw had identified five annual evaluations-dated 2010 through 2014-she intended to introduce as exhibits. During a five-day window[4] for objections, Metro said nothing. At the hearing, Shaw introduced the evaluations-each showing she routinely met or exceeded her superiors' expectations. Metro sought to counter the evaluations with a chart prepared by Metro's Professional Standards Unit ("PSU") reflecting Shaw's entire disciplinary record from 2007 through 2011-two written reprimands and four suspensions.

         FOP objected. Citing Article 17, Section 3.D[5] of the CBA, FOP noted five of the six items Metro proposed to introduce were too old to be considered. In response, Metro argued Shaw's introduction of evaluations outside the five-year range applicable to disciplinary measures "opened the door" for its use of Shaw's entire disciplinary file. FOP insisted the CBA contains no age-limit on evaluations, making them all admissible.[6] The Board rejected Metro's attempted reliance on the chart but allowed it to be placed in the record by avowal. Addressing the evidentiary issue in its findings and order, the Board stated it did not deem the chart "to be appropriate evidence and does not base its decision on anything falling outside the period allowed by the [CBA] and Louisville Metro Government."

         FOP maintains it learned for the first time at Shaw's hearing the PSU routinely prepared a chart of all past discipline for every officer facing charges. As was PSU's custom, Shaw's chart was provided to Chief Conrad before he decided to terminate her employment and to the Board before it affirmed the termination.

         Chief Conrad testified at the hearing he knew the chart was in Shaw's file, but did not consider it in levying punishment. When asked whether "any of those disciplinary proceedings play a part in your determination as to whether there were facts to support the violation you found, or the level of discipline that you imposed in this case," Chief Conrad replied, "No, sir. None whatsoever." In affirming Shaw's dismissal, the Board reiterated it was

aware of the FOP Contract provision prohibiting consideration of disciplinary history earlier than a certain period of time prior to an episode such as this and concludes that it will not consider such history.

         Thus, while both Chief Conrad and the Board acknowledged having access to Shaw's entire disciplinary history, both indicated stale information was not used in deciding to terminate her employment with Metro.

         The Board hearing spawned two separate lawsuits filed by different plaintiffs and assigned to different divisions of Jefferson Circuit Court. As permitted by KRS[7] 67C.323(3)(a) and Article 12 of the CBA, [8] Shaw, in her name alone, appealed Metro's decision to terminate her employment.[9] FOP moved to intervene in Shaw's suit-seeking to allege Metro had breached the CBA-but that request was denied because the "burden of proof in a breach of contract case is significantly different to that in an administrative agency decision appeal." Finding joinder to be unnecessary, Division 9 stated FOP "is not barred from seeking its breach of contract claims in a separate action." Ultimately, Division 9 entered an order affirming Shaw's termination because it "was based on Shaw's own admissions to the violations." Shaw appealed the Division 9 order to this Court where another panel affirmed the termination as being supported by substantial evidence.[10]

         While Shaw's personal challenge to her termination wound its way through Division 9 and then through this Court, FOP alleged Metro's contract violations in its own name through another aspect of Article 12, Section 1 of the CBA which reads:

[a]ny controversy between Metro Government and the [FOP] concerning the meaning and application of any provisions of this Agreement shall be adjusted in the manner set out below. Both parties agree that disciplinary matters are not subject to the grievance procedure contained in this Agreement. All disciplinary matters shall be appealed pursuant to state statute and the rules and regulations of the [Board]. The [FOP] or any Member may file a grievance and shall be afforded the full protection of this Agreement and the right to legal counsel.

(Emphasis added). FOP chose to submit Metro's alleged breach of contract claims to "advisory arbitration" as allowed by Article 12, Section 2, Step 4 of the CBA which reads in part:

[i]f the aggrieved or the [FOP] is not satisfied with the answer obtained in Step 3, either may seek advisory arbitration within fourteen (14) days after the receipt by the aggrieved of the Step 3 answer.

(Emphasis added). The CBA does not define "advisory arbitration."

         FOP and Metro jointly chose arbitrator Carl Jenks to determine whether Metro had twice violated the CBA's Article 17, Section 3.D, by providing a chart of Shaw's entire disciplinary history to Chief Conrad and then to the Board. If Jenks found a violation, both FOP and Metro asked Jenks to suggest an appropriate remedy. Following an evidentiary hearing and oral argument-neither of which is part of the certified record on appeal-Jenks rendered an arbitration opinion and award finding Metro had violated the CBA. Further, because those violations preceded imposition of punishment, Jenks believed the stale discipline may have tainted the decision to terminate Shaw's employment. Acknowledging his opinion was purely "advisory"-as opposed to being final and binding-Jenks proposed a two-pronged "remedy." First, Metro should comply with Article 17, Section 3.D, and cease providing the Chief and Board ...


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