Jonathan Hardin v. louisville/jefferson County Metropolitan Government ( 2022 )


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  •                 RENDERED: FEBRUARY 11, 2022, 10:00 A.M.
    NOT TO BE PUBLISHED
    Commonwealth of Kentucky
    Court of Appeals
    NO. 2021-CA-0234-MR
    JONATHAN HARDIN                                                     APPELLANT
    APPEAL FROM JEFFERSON CIRCUIT COURT
    v.                HONORABLE MARY M. SHAW, JUDGE
    ACTION NO. 19-CI-000858
    LOUISVILLE/JEFFERSON COUNTY
    METROPOLITAN GOVERNMENT
    AND LOUISVILLE METRO POLICE
    MERIT BOARD                                                         APPELLEES
    OPINION
    AFFIRMING
    ** ** ** ** **
    BEFORE: CALDWELL, CETRULO, AND JONES, JUDGES.
    CALDWELL, JUDGE: Jonathan Hardin (“Hardin”) appeals the decision of the
    Jefferson Circuit Court upholding the Louisville Metro Police Merit Board (“Merit
    Board”) action of approving the termination of his employment as a police officer
    by the chief of police, Steve Conrad (“Chief Conrad”).
    Chief Conrad had terminated Hardin after allegations of Hardin’s
    failure to follow proper police procedures were investigated and substantiated to
    the Chief Conrad’s satisfaction. Hardin appealed his termination to the Merit
    Board. The Merit Board held a four-day hearing into the termination decision and
    upheld the decision to terminate Hardin.
    Hardin appealed his termination to the Jefferson Circuit Court for
    administrative review pursuant to Kentucky Revised Statute (“KRS”)
    67C.323(3)(a).1 In the circuit court, Hardin alleged that since related criminal
    records were ultimately expunged, the Merit Board erred when it did not grant his
    motion that all materials contained in the criminal case file not be admitted at the
    hearing. He also argued he was denied the right to confront witnesses at the
    hearing when their transcribed testimony from the investigation of the allegations
    was presented rather than live testimony.
    1
    KRS 67C.323(3)(a) states:
    Every action of a dismissal, suspension, or demotion made by the
    board shall be final, except that any person aggrieved may, within
    thirty (30) days after the action, appeal to the Circuit Court of the
    county in which the board meets. The board shall be named
    respondent as the consolidated local government police force merit
    board, and service shall be had on the chairman of the board.
    Notice of the appeal shall be given to the chief or the officer if not
    already a party to the appeal as real parties in interest. The appeal
    taken to the Circuit Court shall be docketed by the clerk as a civil
    action with appropriate judicial review of an administrative action
    or decision.
    -2-
    The circuit court affirmed the Merit Board. After reviewing the
    record, the circuit court decision, and the briefs of the parties, we affirm the circuit
    court.
    FACTS
    In 2015, Appellant Jonathan Hardin was a Louisville Metro Police
    Officer assigned as a student resource officer at Olmstead Academy North, a
    public middle school in Jefferson County. He had been an officer for six years at
    the time of this assignment.
    On January 22, 2015, Hardin was in the cafeteria during the lunch
    period speaking with a school employee when a student attempted to cut the lunch
    line. The school employee directed the student to the back of the line, but the
    student ignored the employee’s direction. Hardin then intervened and repeated the
    employee’s instruction that the student go to the back of the line. In response, the
    thirteen-year-old student balled his hands into fists and refused to move. Hardin
    pushed the student and then punched him in the face, with a closed fist. Hardin
    then pinned the student on the ground and threatened to utilize his taser on the
    student if the student continued to resist. The student relented, was handcuffed,
    and was transported to the hospital for treatment of injuries he sustained. After
    treatment, the student was released to his parent and was criminally charged with
    menacing and resisting arrest.
    -3-
    Several days later, on January 27, 2015, Hardin was in a hallway of
    the school when a student took a step towards him and mimed shooting a
    basketball over Hardin’s head. Another student simultaneously pushed Hardin,
    and while Hardin was admonishing the second student, a third student pushed
    Hardin very hard, causing him to fall to the floor. Hardin got up from the floor and
    approached the third student from the back, grabbing him around the chest and
    lifting him off the floor. Hardin held the student in the air for approximately
    twelve seconds while the student tapped Hardin’s arms and swung his feet, fighting
    for air before going limp. Hardin then lowered the student and laid him on the
    floor. The student regained consciousness soon thereafter and was handcuffed by
    Hardin for a short time.
    Instead of charging the student with a criminal offense, Hardin took
    the student outside to exercise and then took him into the auditorium to play piano
    for the student, hoping to calm him. Finally, Hardin drove the child home to his
    parent after the principal approved him doing so.
    Both incidents were captured on video tape. The January 22 incident
    was reported by Hardin to his supervising officer in accordance with standard
    police policy. His supervisor completed an administrative incident report,
    necessary any time an officer or an arrestee is injured during an arrest. The
    January 27 incident was not reported by Hardin to his superior officer, but rather to
    -4-
    the student resource officer commander. Hardin told the commander it was not
    necessary to file an administrative incident report because no injuries occurred.
    However, after viewing the video of the January 27 incident, the commander chose
    to report it, which report resulted in an investigation of the incident.
    After internal reviews of both incidents, Hardin was criminally
    charged on February 3, 2015, with assault in the fourthdegree, official misconduct
    in the first degree, and false swearing in relation to the January 22 incident. The
    charges were eventually dismissed and were the subject of an expungement order
    issued on January 19, 2016.
    In relation to the January 27 incident, Hardin was charged with
    official misconduct in the first degree (eventually amended to official misconduct
    in the second degree), assault in the first degree (eventually amended to assault in
    the fourth degree), and wanton endangerment. He was tried by a jury in June of
    2018, and was found not guilty of the amended charges.
    Hardin also faced disciplinary action after the internal investigations
    of both incidents were completed. On March 20, 2015, Chief Conrad terminated
    Hardin for violations of Louisville Metro Police Department (“LMPD”) Standard
    Operating Procedures (“SOP”). Chief Conrad articulated in the letter of
    termination that he found that Hardin had violated SOP 9.1.4, Use of Physical
    Force, in both instances; SOP 10.7.2, Taking Juveniles into Custody, for the
    -5-
    January 22 incident; and SOP 5.1.2, Obedience to Rules and Regulations, for the
    criminal charges brought against Hardin flowing from both incidents.
    Hardin appealed his termination by Chief Conrad to the Merit Board.
    The Merit Board is vested with authority to review personnel decisions concerning
    sworn officers by KRS 67C.323. Hardin requested that the Merit Board hearing be
    delayed until after the criminal proceedings were completed, which was granted.
    The Merit Board did not begin the proceedings until 2018, after the criminal cases
    were concluded and the expungement order entered.
    At the Merit Board hearing, testimony from Hardin, the lead Public
    Integrity Unit (“PIU”) investigator, the commander to whom Hardin reported the
    January 27 incident, the Professional Standards Unit (“PSU”) commander, the lead
    PSU investigator, and Chief Conrad were all presented by LMPD in support of the
    termination. Hardin called as witnesses several school employees, as well as his
    supervising officer to whom he reported the January 22 incident, and the PSU
    Investigator.
    Following the hearing, during which the members of the Merit Board
    reviewed the video footage of the incidents multiple times, the Board voted to
    uphold Hardin’s termination, finding that Hardin violated SOP 9.1.4, Use of
    Physical Force, and SOP 10.7.2, Taking Juveniles into Custody, but finding no
    -6-
    violation of SOP 5.1.2, Obedience to Rules and Regulations. The Board’s findings
    of fact and conclusions of law were issued January 15, 2019.
    Hardin then appealed the decision of the Merit Board to the Jefferson
    Circuit Court, which has jurisdiction to review the Board’s decisions via KRS
    67C.323(3)(a). Hardin argued that the Board had reviewed evidence that had been
    included in the file of the expunged case, which he argued was improper. He also
    forwarded that his rights pursuant to the confrontation clause were violated by the
    introduction of witness statements rather than live testimony. The circuit court
    reviewed the determination of the Merit Board and found substantial evidence
    supported its conclusion that Chief Conrad’s termination of Hardin be upheld.
    In the opinion and order issued in February of 2021, the circuit
    court found that the same evidence was used both in the criminal prosecution and
    in the personnel matter and the expungement of the criminal case did not act to
    prevent the use of the evidence in the personnel action. As to the witness
    statements, the circuit court held that the Board did not mention the statements in
    its findings of fact and conclusion of law, but rather relied upon the testimony of
    the live witnesses, satisfying the standard that the decision was supported by
    substantial evidence.
    -7-
    Hardin now appeals the decision of the circuit court to this Court.
    Having reviewed the court’s opinion, the briefs of the parties and the record, we
    affirm.
    STANDARD OF REVIEW
    KRS 67C.323(1) provides a framework for the Merit Board’s review
    of a decision of the chief of police to terminate the employment of a non-
    probationary officer. Any person aggrieved by the Board’s decision following
    such a review has a right to appeal the Merit Board’s determination to the circuit
    court. KRS 67C.323(3)(a). The circuit court’s judgment in review of such matters
    is subject to review by this Court. KRS 67C.323(3)(b).
    The circuit court reviews the decision of the Merit Board for
    arbitrariness. “Basically, judicial review of administrative action is concerned with
    the question of arbitrariness.” Am. Beauty Homes Corp. v. Louisville & Jefferson
    Cty. Plan. & Zoning Comm’n, 
    379 S.W.2d 450
    , 456 (Ky. 1964) (emphasis in
    original). If an administrative action is not supported by substantial evidence, it is
    arbitrary. 
    Id.
     “Substantial evidence has been defined as evidence which ‘has
    sufficient probative value to induce conviction in the minds of reasonable men.’”
    Runner v. Commonwealth, 
    323 S.W.3d 7
    , 10 (Ky. App. 2010) (quoting Kentucky
    State Racing Comm’n v. Fuller, 
    481 S.W.2d 298
     (Ky. 1972)). In reviewing for
    arbitrariness, the reviewing court must observe whether the questioned exercise of
    -8-
    authority might be infirm as an “(1) action in excess of granted powers, (2) lack of
    procedural due process, and (3) lack of substantial evidentiary support[.]” Am.
    Beauty Homes Corp., 379 S.W.2d at 456.
    Our review of the circuit court determination is only for clear error.
    The standard guiding [the Court of Appeals] on the
    appeal from the circuit court is the “clearly erroneous”
    rule as promulgated in [Kentucky Rules of Civil
    Procedure] CR 52.01. [The Court of Appeals] cannot
    disturb the trial court’s determination unless it acted
    clearly erroneously in the sense that its determinations
    were not supported by substantial evidence.
    Stallins v. City of Madisonville, 
    707 S.W.2d 349
    , 351 (Ky. App. 1986).
    If we find the circuit court’s decision was not clearly erroneous, it should be
    affirmed. However, any appellate review of questions of law is de novo. Huxol v.
    Daviess County Fiscal Court, 
    507 S.W.3d 574
    , 578 (Ky. App. 2016).
    ANALYSIS
    Hardin had two main complaints to the circuit court concerning the
    Merit Board’s actions. The first complaint was that the Merit Board erred in
    considering materials contained in the files of the criminal case which was
    expunged, maintaining that the expungement prevented any use of those materials.
    The second complaint was that his procedural due process rights were violated
    when the Merit Board considered witness statements, leaving him unable to cross-
    -9-
    examine those witnesses. We will review the circuit court’s decision as to each for
    clear error.
    1. The Expunged Materials
    During the Merit Board proceedings, counsel for Hardin objected to
    the introduction of certain documents by LMPD because they had been used or
    relied upon in the criminal proceedings which had been expunged. Hardin argued
    that any documents used in the expunged proceedings are themselves subject to the
    expungement order, rendering them incapable of being introduced in any other
    proceeding like the Merit Board hearing.
    The circuit court found that the police investigations of Hardin’s
    actions were undertaken by both the PIU and the PSU. Arguably, the court found,
    since the PIU reviews officer behavior for possible criminal charges, materials in
    the PIU file were subject to the expungement order. But it found that the contents
    of the PSU file were not subject to the expungement order, as the investigation by
    the PSU is into violations of the SOPs, and would not likely support a criminal
    charge.
    The relevant sections of KRS 431.076 provide:
    (4) An order of expungement pursuant to this section
    shall expunge all criminal records in the custody of the
    court and any criminal records in the custody of any
    other agency or official, including law enforcement
    records, but no order of expungement pursuant to this
    section shall expunge records in the custody of the
    -10-
    Department for Community Based Services. The court
    shall order the expunging on a form provided by the
    Administrative Office of the Courts. Every agency, with
    records relating to the arrest, charge, or other matters
    arising out of the arrest or charge, that is ordered to
    expunge records, shall certify to the court within sixty
    (60) days of the entry of the expungement order, that the
    required expunging action has been completed. All
    orders enforcing the expungement procedure shall also be
    expunged.
    ...
    (6) After the expungement, the proceedings in the matter
    shall be deemed never to have occurred. The court and
    other agencies shall delete or remove the records from
    their computer systems so that any official state-
    performed background check will indicate that the
    records do not exist. The court and other agencies shall
    reply to any inquiry that no record exists on the matter.
    The person whose record is expunged shall not have to
    disclose the fact of the record or any matter relating
    thereto on an application for employment, credit, or other
    type of application.
    Hardin insists that the circuit court erred. He argues that the statute
    requires that an expungement order necessitates the purging of all documentary
    evidence which had been presented in the expunged proceeding, even if those
    materials were available from other sources. The Merit Board points to the
    language of KRS 431.079(3):
    For the purposes of this section, KRS 431.073, 431.076,
    and 431.078, “expungement” means the removal or
    deletion of records by the court and other agencies which
    prevents the matter from appearing on official state-
    performed background checks.
    -11-
    The Merit Board insisted to the circuit court that it was only the
    documents generated in the expunged court proceeding itself that were required to
    be deleted or removed. Therefore, any evidence adduced from another source and
    introduced during the conduct of the now-expunged proceeding is not touched by
    the expungement order. The circuit court agreed with the Merit Board. We find
    that this determination was proper and not clearly erroneous.
    We determine that the statute clearly delineates those “records” which
    must be expunged. In discerning the meaning of a statute, we must look to the
    common, plain meaning of the words chosen by the legislature.
    It is this Court’s duty when interpreting statutes to give
    effect to the General Assembly’s intent, but “no rule of
    interpretation . . . require[s] us to utterly ignore the plain
    . . . meaning of words in a statute.” In fact, “[t]he plain
    meaning of the statutory language is presumed to be what
    the legislature intended, and if the meaning is plain, then
    the court cannot base its interpretation on any other
    method or source.” We “ascertain the intention of the
    legislature from words used in enacting statutes rather
    than surmising what may have been intended but was not
    expressed.” In other words, we assume that the
    “[Legislature] meant exactly what it said, and said
    exactly what it meant.” Only “when [it] would produce
    an injustice or ridiculous result” should we ignore the
    plain meaning of a statute.
    Revenue Cabinet v. O’Daniel, 
    153 S.W.3d 815
    , 819 (Ky. 2005) (citations omitted).
    The language of this statute is clear. The expungement statute speaks
    of the records of the court or other agencies which might appear “on official state-
    -12-
    performed background checks.” This does not contemplate all of the documents
    Hardin complains of having been considered by the Merit Board. Many of the
    documents were not generated through the criminal prosecution, but rather during
    the PSU investigation.
    During the multiple investigations of Hardin’s actions on January 22
    and January 27, several files were created. Within LMPD, two investigations were
    ongoing: one by the PIU and the other by the PSU. The PIU investigates
    allegations of criminal activity by officers. When the allegation against an officer
    concerns a failure to follow departmental policy, the PSU conducts the
    investigation. The two units can conduct concurrent investigations, which
    occurred when the allegations against Hardin arose. It is the introduction of
    materials from both of these investigations to which Hardin objected at the Merit
    Board hearing. His argument is that as some of the materials were introduced
    during the expunged court proceedings as evidence, they were subject to the
    expungement order and therefore could not be introduced, even though they arose
    from a source independent of the expunged proceedings.
    Hardin’s interpretation of the statute is not reasonable and requires us
    to interpret a statute such as to reach an absurd result. KRS 431.076(4) clearly
    delineates that the only records which are required to be eliminated from all
    records are those “relating to the arrest, charge, or other matters arising out of the
    -13-
    arrest or charge[.]” Nothing in the PSU file could possibly qualify as falling under
    this definition as nothing in the PSU file, relating to violation of policy, would
    relate to an arrest or charge. But the PIU file might contain materials which were
    presented as evidence in the criminal case, which would be relating to the arrest or
    charge. The circuit court made this delineation, expressly finding that PSU files
    could not possibly relate to the arrest or charge, but that the PIU files possibly
    could.
    The circuit court noted that the PIU file was incorporated into the PSU
    file prior to the expungement order. The court, having found that only the PIU
    files could possibly contain materials subject to the expungement order, then
    conducted a harmlessness review to determine if any harm might have occurred by
    the inclusion of any of the PIU files in the PSU.
    We hold that best practice would be for any of the materials subject to
    an expungement order be redacted from any file, such as the PIU file, prior to
    presentation to an administrative hearing body, such as the Merit Board. Even so,
    the court found that the only charge before the Merit Board to which any of the
    PIU specific contents were relevant was the violation of SOP 5.1.2, and that charge
    was determined to be meritless by the Board. Thus, to the extent that the Merit
    Board utilized materials subject to the expungement order, that error was harmless,
    and we find that the circuit court properly so found.
    -14-
    2. The Witness Statements
    Hardin argued to the circuit court that the witness statements were not
    properly before the Merit Board and the use of those statements at the hearing
    violated his due process rights. The circuit court held that because the witness
    statements were of “minimal assistance” to the Board, and because unpublished
    caselaw supported a finding that the use of the statements was not improper, the
    actions of the Merit Board were proper.2 We do not find that holding to be
    erroneous.
    Hardin asserted to the circuit court that his right to confront his
    accusers was violated when the Merit Board relied upon witness statements in
    reviewing Chief Conrad’s termination decision, rather than requiring live
    testimony so Hardin could effectively cross-examine the witnesses. The circuit
    court held that Hardin’s rights to due process were not violated, as hearsay is
    admissible in administrative proceedings.3 Further, the court reasoned, the Merit
    2
    Ca’Mel v. Louisville/Jefferson County Metro Gov’t Police Dep’t, No. 2013-CA-001988-MR,
    
    2015 WL 226088
     (Ky. App. Jan. 16, 2015), and Shaw v. Louisville/Jefferson County Metro
    Gov’t Police Dep’t, No. 2017-CA-000867-MR, 
    2018 WL 3954278
     (Ky. App. Aug. 17, 2018).
    3
    Hearsay evidence may be admissible, if it is the type of evidence that reasonable and prudent
    persons would rely on in their daily affairs, but it shall not be sufficient in itself to support an
    agency’s findings of facts unless it would be admissible over objections in civil actions. KRS
    13B.090(1).
    -15-
    Board did not cite the witness statements in its findings and the statements were of
    only minimal assistance to the Board.
    We find no clear error with the circuit court’s reasoning. The
    confrontation clause promises only that those facing criminal accusations have a
    right to confront those who provide testimony against him or her.
    The Sixth Amendment to the United States Constitution,
    made applicable to the States via the Fourteenth
    Amendment, Pointer v. Texas, 
    380 U.S. 400
    , 403, 
    85 S. Ct. 1065
    , 
    13 L. Ed. 2d 923
     (1965), provides that “[i]n all
    criminal prosecutions, the accused shall enjoy the right
    . . . to be confronted with the witnesses against him.” In
    Crawford,[4] after reviewing the Clause’s historical
    underpinnings, we held that it guarantees a defendant’s
    right to confront those “who ‘bear testimony’” against
    him. 541 U.S., at 51, 
    124 S. Ct. 1354
    .
    Melendez-Diaz v. Massachusetts, 
    557 U.S. 305
    , 309, 
    129 S. Ct. 2527
    , 2531, 
    174 L. Ed. 2d 314
     (2009).
    However, we do note that KRS 67C.325 does guarantee an officer “an
    opportunity to confront his or her accusers[.]” Had the circuit court not found any
    admission of the statements to be harmless, our review might end differently. The
    circuit court made clear in its ruling that the Merit Board made no notation to the
    statements in its findings, and that the officers specifically noted as having
    4
    Crawford v. Washington, 
    541 U.S. 36
    , 
    124 S. Ct. 1354
    , 
    158 L. Ed. 2d 177
     (2004).
    -16-
    provided evidence in the findings provided live testimony and were subject to
    cross-examination.
    The circuit court gave due consideration to the argument of Hardin
    concerning whether the admission of the witness statements violated his due
    process rights. It gave due consideration to the import of the witness statements to
    the Merit Board, found them to have been of little consequence, and therefore its
    determination that Hardin’s due process rights were not violated was not clearly in
    error.
    CONCLUSION
    The “residuum rule” establishes that the “findings of an administrative
    agency will be upheld despite its partial reliance upon incompetent evidence if it
    also had before it competent evidence which by itself would have been legally
    sufficient to support the findings.” Haste v. Kentucky Unemployment Ins.
    Comm’n, 
    673 S.W.2d 740
    , 740-41 (Ky. App. 1984) (citing Big Sandy Community
    Action Program v. Chaffins, 
    502 S.W.2d 526
    , 530 (Ky. 1973)).
    We find that the Jefferson Circuit Court thoroughly reviewed the
    record before it and its ruling was supported by substantial evidence and thus not
    clearly erroneous. We affirm the decision upholding the Merit Board’s
    determination to terminate Hardin’s employment as a Louisville Metro Police
    officer.
    -17-
    ALL CONCUR.
    BRIEFS FOR APPELLANT:      BRIEF FOR APPELLEE
    LOUISVILLE METRO POLICE
    David Leightty             MERIT BOARD:
    Louisville, Kentucky
    Mark W. Dobbins
    Kathleen M.W. Schoen
    Louisville, Kentucky
    BRIEF FOR APPELLEE
    LOUISVILLE/JEFFERSON
    COUNTY METROPOLITAN
    GOVERNMENT:
    Mitchel T. Denham
    Erin M. Shaughnessy
    Olivia Oney
    Louisville, Kentucky
    -18-