McBrayer Member Mitchel Denham recently won two cases before the Kentucky Supreme Court—Louisville/Jefferson County Metro Government v. Moore, -- S.W.3d --, 2024 WL 3930410 (Ky. 2024) and Hardin v. Louisville/Jefferson County Metro Government, -- S.W. --, 2024 WL 3929570 (Ky. 2024). Both cases involved former Louisville Metro Police Department officers who appealed their terminations. In both cases, the Louisville Metro Police Merit Board upheld the former officers’ terminations.
Moore involved an officer who violated various LMPD Standard Operating Procedures (SOPs) after three incidents involving his estranged wife. He was charged criminally for two of the incidents and convicted of violating a court order. The criminal charges related to one incident were dismissed and the criminal records ordered expunged.
Hardin involved a former school resource officer who violated various LMPD SOPs related to two incidents involving juveniles. In one incident, Hardin punched a 13-year-old child in the face. In a second incident, he placed another 13-year-old in a choke hold causing the child to lose consciousness. Hardin was also charged criminally, but the criminal charges related to the punching incident were dismissed and the criminal records ordered expunged. He was acquitted at trial for the criminal charges related to the choke hold.
The primary issues before the Kentucky Supreme Court in both cases were the same, both of which were issues of first impression. First, the Court considered whether the expungement statute was applicable to the internal employment files of LMPD. The Court determined that the expungement statute was not applicable to the employment investigation because the information is neither criminal nor would it appear on a state-performed background check. Thus, these files were not subject to the expungement statute.
Second, the Court considered whether the Merit Board’s introduction and consideration of sworn transcribed witness statements without hearing live testimony from the witnesses at the hearing violated the appealing officers’ statutory or constitutional due process rights. The Court rejected the appealing officers’ arguments that the statutory requirement that the officers receive an “opportunity” to confront is akin to the Sixth Amendment’s right to confront. Instead, the Court found the officers’ opportunity to confront is achieved by the statutorily required disclosure of witnesses and exhibits, and the officer’s ability to subpoena witnesses for the hearing. In addition, the Court conducted a thorough analysis of the officers’ Fourteenth Amendment due process rights, applying the test outlined in Mathews v. Eldridge, 424 U.S. 319 (1976). The Court found the introduction of witness statements complied with the due process clause of the Fourteenth Amendment. The Court held that the statutory structure of Merit Board appeals provides sufficient protections to ensure the appealing officers’ due process rights are protected.
The Moore and Hardin opinions have significance beyond the disputes in those cases. The Court’s holding that the expungement statute does not apply to a public agency’s employment file means that the expungement statute does not apply to a public agency’s employment investigations or personnel files so long as those files are not used in state background checks. Thus, a public employee cannot avoid the consequences of an employment action by hiding behind the expungement statute even if his or her criminal case has been expunged.
In addition, the Court’s analysis that the introduction of sworn witness statements does not violate due process is not only applicable to police Merit Board hearings, but to all hearings where a public employee appeals his or her discipline. So long as the controlling statutes provide similar or other adequate due process safeguards, the consideration of sworn witness statements by the administrative body will not violate the appealing employee’s due process. A review of the specific controlling statute, however, will be necessary to the analysis.
