Pearce v. Whitenack

TAYLOR, Judge,

dissenting.

Respectfully, I dissent. The meager record on appeal in this case reflects that Pearce filed a complaint in the Mercer Circuit Court alleging several causes of action, including constructive discharge from his employment as a police officer by the City of Harrodsburg. Approximately twenty days after the complaint was filed in August of 2012, appellees filed a motion to dismiss. Other than the filing of the amended complaint, which reasserted the constructive discharge claim, there were no other substantive pleadings filed and most importantly, no discovery of any kind taken in this case. The circuit court dismissed the case less than five months after being filed on the sole legal basis of Pearce’s failure to exhaust his administrative remedies under the protections afforded police officers in Kentucky pursuant to KRS 15.520, et seq. The majority has affirmed the circuit court by using a statute expressly intended to guarantee due process rights for police officers of local governments in Kentucky and in so doing, has effectively denied Pearce those very due process rights that the statute affords.

I agree that KRS 15.520 was triggered in this case by the citizens’ complaint filed against Pearce. Based on the alleged actions of his superiors, Pearce resigned on June 1, 2012, which he alleges amounts to a constructive discharge of his employment as a police officer. However, Pearce still attempted to invoke the administrative procedures of KRS 15.520 by filing a grievance with the City of Harrodsburg later that day on June 1. Rather than give Pearce an administrative hearing, to which he was entitled, the City and its Commissioners — not Pearce — unilaterally ended the administrative process. In a letter dated June 4, 2012, from the City attorney to Pearce’s attorney that was also served on Pearce, the City attorney stated the following:

Dear Mr. Guthrie:

On June 1, 2012, at approximately 11:00 a.m., City Clerk Kim Stinnett received the tendered resignation of former Officer Jeffry [sic] Pearce. On the same date at approximately 1:00 p.m., she received a tendered grievance from him. Please be advised that the grievance was procedurally defective and will not be addressed by the City or its Board of Commissioners.

Sincerely,

Hon. Douglas L. Greenburg, City Attorney

The circuit court and the majority in their Opinion have effectively ignored Pearce’s attempt to proceed in the administrative process which was terminated by the City, not Pearce. The circuit court’s conclusion that Pearce failed “to exhaust his administrative remedies” is totally contradicted by the record in this case that reflects the City terminated the administrative process, leaving Pearce no other option but to file suit in the Mercer Circuit Court.

In City of Munfordville v. Sheldon, 977 S.W.2d 497 (Ky.1998), the Kentucky Supreme Court upheld the right of a police chief who had been fired by the City’s mayor for cause, to be entitled to an administrative hearing under KRS 15.520, et seq. Under KRS 15.520, et seq., I can find no distinction or difference where a police officer who has been constructively discharged should be treated any differently than one who has been involuntarily discharged as occurred in City of Munford-ville. See id.

Under the majority’s rhisguided logic, Pearce can neither pursue his administrative remedies under KRS 15.520 nor pursue his common law remedies in circuit court because he resigned. Effectively, both remedies are forevermore forfeited due to Pearce’s resignation, albeit he alleges constructive discharge not voluntary termination. What is more disturbing with this logic is that one of the few known facts that can be discerned from the limited record on appeal is that the City of Harrodsburg terminated the administrative process, not Pearce. This leads one to ask, “How can Pearce exhaust his administrative remedy if the City refuses to give him a hearing?”

The majority has essentially concluded that because there exists a police bill of rights under KRS 15.520, a police officer cannot assert a claim for constructive discharge even if his employer creates intolerable working conditions that would compel a reasonable police officer to resign. In other words, a police officer can never resign in Kentucky and assert a constructive discharge claim because his resignation would preclude an administrative hearing and thus, constitute a failure to exhaust his administrative remedy. This is not the law in Kentucky, nor did the General Assembly intend such a draconian result upon passage of KRS 15.520, in my opinion.

Finally, I further must dissent in the majority impermissibly becoming a fact-finder in this case regarding the constructive discharge claim, concluding that based on “objective criteria” the actions against Officer Pearce did not create intolerable working conditions which would compel a reasonable person to resign. This issue was not even addressed by the circuit court below based on its holding that Pearce failed to exhaust his administrative remedies. The majority has clearly overstepped the boundary of permissible review in this appeal, given that there has been absolutely no discovery conducted in this case to date. The only substantive matters before this Court are unproven allegations by both parties.

On the merits, Pearce’s termination of employment may have been justified. However, this Court cannot reach that issue until Pearce is afforded an administrative hearing or his day in court, neither of which has occurred in this case.

For the foregoing reasons, I would reverse and remand this action to the circuit court with directions that it remand the case to the City of Harrodsburg to conduct an administrative hearing as contemplated under KRS 15.520 on both the citizen complaint and the grievance filed by Pearce,