Jonathan Hardin v. louisville/jefferson County Metropolitan Government

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NOT TO BE PUBLISHED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.
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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.
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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
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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
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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
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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.
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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
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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-
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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
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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.
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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-
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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
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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.
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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).
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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).
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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.
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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
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