Guy J. Turcotte v. Dick Doty

• Court: Court of Appeals of Kentucky
• Decided: October 8, 2020
• Docket: 2019 CA 001883
• Status: Unknown

Opinion

RENDERED: OCTOBER 9, 2020; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2019-CA-1883-MR

GUY J. TURCOTTE APPELLANT

APPEAL FROM BARREN CIRCUIT COURT v. HONORABLE JOHN T. ALEXANDER, JUDGE ACTION NO. 18-CI-00622

DICK DOTY; CITY OF GLASGOW POLICE DEPARTMENT; CITY OF GLASGOW, KENTUCKY; AND GUY HOWIE APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: GOODWINE, JONES, AND L. THOMPSON, JUDGES.

THOMPSON, L., JUDGE: Guy J. Turcotte (“Appellant”) appeals from an order of

the Barren Circuit Court granting summary judgment in favor of Dick Doty, City

of Glasgow Police Department, City of Glasgow, and Guy Howie (“Appellees”).

Appellant argues that the circuit court failed to view the facts in a light most

favorable to Appellant, that he was legally appointed to the position of Lieutenant Colonel in the Glasgow Police Department, and that summary judgment was

improperly rendered on various statutory and free speech claims. For the reasons

addressed below, we find no error and affirm the summary judgment on appeal.

FACTS AND PROCEDURAL HISTORY

Appellant was appointed Chief of Police of the Glasgow Police

Department in 2011.1 In 2014, Glasgow Mayor Rhonda Trautman was defeated in

a mayoral election by Dick Doty. Because Doty ran on a platform of fiscal

responsibility and integrity within the police department, Appellant assumed that

Doty would terminate him as Chief of Police when Doty took office. In

anticipation of being fired, Appellant resigned before Doty took office. Just before

leaving office, Mayor Trautman appointed Appellant to the position of Lieutenant

Colonel of Support within the Glasgow Police Department. Appellant was never

assigned any duties or responsibilities.

After taking office, Mayor Doty assigned James Duff as interim Chief

of Police. On May 27, 2017, Appellant sued the City of Glasgow and Duff

alleging violation of Kentucky Revised Statute (“KRS”) 95.450 (disciplinary

procedures for police departments) and defamation. Appellant alleged that a

1 We take judicial notice of the facts set out in the prior appellate case of Turcotte v. City of Glasgow, Kentucky, No. 2017-CA-000673-MR, 2018 WL 1444236 (Ky. App. Mar. 23, 2018). See Kentucky Rule of Evidence (“KRE”) 201 and Marchese v. Aebersold, 530 S.W.3d 441 (Ky. 2017).

-2- violation of KRS 95.450 resulted when he was assigned to a position within the

Glasgow Police Department but not assigned any job duties.

During the pendency of that lawsuit (hereinafter “the first lawsuit”),

the Glasgow City Council (“the Council”) enacted Municipal Order 2016-709,

which repealed the Glasgow Police Department’s Standard Operating Procedure

manual and adopted a new organizational structure for the Glasgow Police

Department. The new structure eliminated the Lieutenant Colonel positions

altogether. Because the first lawsuit was still pending when the new procedures

were adopted, the City of Glasgow and the Glasgow Police Department continued

Appellant’s title and salary until the first lawsuit was resolved. The first lawsuit

resulted in summary judgment in favor of the defendants. It was affirmed on

appeal to a panel of this Court,2 and the Kentucky Supreme Court denied

discretionary review.

After the first lawsuit ended, Chief Howie, who was then Chief of

Police, provided Appellant with a memorandum on October 8, 2018, explaining

the new organizational structure and a change of Appellant’s job title to patrol

officer. Appellant refused to sign a personnel status form reflecting his status

change. He then filed the instant action in Barren Circuit Court on October 10,

2018, against Mayor Doty, the City of Glasgow Police Department, the City of

2 See Footnote 1.

-3- Glasgow, Kentucky, and Chief of Police Howie.3 In this second action, Appellant

alleged that he was improperly demoted in violation of KRS 95.450, KRS 15.520,

and KRS 61.102. The corpus of the second complaint was that Appellant was

improperly denied notice and a formal hearing when Appellees took disciplinary

action against him. He also alleged violation of his right to engage in free speech

on a matter of public concern as secured by the First and Fourteenth Amendments

to the United States Constitution.

On November 18, 2019, the Barren Circuit Court conducted a hearing

on Appellees’ motion for summary judgment. On December 6, 2019, the circuit

court rendered an order granting the motion. In support of the order, the circuit

court determined that Appellant could not prevail on his statutory claims because

the change in Appellant’s employment status was not the result of a disciplinary

action, but rather resulted from the City of Glasgow’s restructuring of the police

department. As KRS 95.450 applied only to disciplinary procedures, and because

no disciplinary action was taken against Appellant, the circuit court concluded that

Appellant could not prevail on his statutory claims if the matter proceeded to trial.

Similarly, the court found that KRS 15.520 was not implicated as

Appellant had not been subjected to either internal or external complaints. As to

3 Howie has since retired. The current Chief of Police, Jennifer Arbogast, is not a party to this action.

-4- KRS 61.102, i.e., the Kentucky Whistleblower Act, the court determined that the

complaint was devoid of any allegations that Appellant “blew the whistle” or made

any charge of misconduct as against any defendant or any third party. The court

also determined that a violation of KRS 90.360, the Kentucky Civil Service Act,

could not be found, as Appellant produced no proof that Glasgow adopted a civil

service system despite Appellant having been given ample opportunity to conduct

discovery on this issue.

Finally, the circuit court concluded that though Appellant had been

given time to engage in discovery on his allegation of an improper deprivation of

his right to free speech, he produced no evidence in support of said claim. The

court granted Appellees’ motion for summary judgment, and this appeal followed.

ARGUMENTS AND ANALYSIS

After asserting in general terms that the actions of the City of

Glasgow and Mayor Doty were a mere ruse designed to oust Appellant from the

police department, and that the circuit court failed to view the facts in a light most

favorable to him, Appellant first argues that 1) he was legally appointed to his

position of Lieutenant Colonel; 2) this issue was expressly litigated in the first

lawsuit; and 3) it was not appealed by the City of Glasgow or the individual

defendants. As the Barren Circuit Court did not consider whether Appellant was

-5- legally appointed to the position of Lieutenant Colonel, nor base its grant of

summary judgment on this issue, this argument is moot.

Appellant next argues that the circuit court erred in granting summary

judgment on his claims under KRS 95.450 and KRS 15.520. The former statute

provides that no police officer shall be subject to reprimand, dismissal, suspension,

or a reduction in grade or pay except for “inefficiency, misconduct,

insubordination or violation of law or of the rules adopted by the legislative body,

and only after charges are preferred and a hearing conducted as provided in this

section.” KRS 95.450(2). “We believe, and so hold, that KRS 95.450 applies to

disciplinary procedures and was intended to provide due process in such

procedures, thus preventing arbitrary punishment of individual officers.” Beckham

v. City of Bowling Green, 743 S.W.2d 858, 860 (Ky. App. 1987) (citation omitted).

The latter statute, KRS 15.520, offers due process protections to officers subject to

disciplinary actions from either internal or external complaints. See Pearce v.

University of Louisville, By and Through its Board of Trustees, 448 S.W.3d 746,

748 (Ky. 2014).

Citing KRS 446.080, Appellant maintains that all statutes in the

Commonwealth shall be liberally construed to carry out the intent of the

legislature. With respect to the specific statutory provisions, Appellant notes that

the restructuring – which he argues was a mere ruse to oust him – resulted in a loss

-6- of salary of about $20,000 per year, and a reduction in grade from the second-

highest officer in the department to the lowest. The focus of his argument is that

the purported restructuring of the police department was actually a thinly-veiled

effort to punish and remove him from employment.

KRS 95.450 and KRS 15.520 apply only to disciplinary actions.

Beckham and Pearce, supra. The question for our consideration is whether the

Barren Circuit Court properly concluded that despite ample discovery, Appellant

was unable to produce any evidence that he was subject to a disciplinary action.

Having closely examined the record and the law, we must answer this question in

the affirmative.

Appellant’s arguments on this issue are merely speculative, and he has

not directed our attention to any evidence in the record that his reassignment

resulted from anything other than a legitimate administrative reorganization.

Appellant’s claims as to KRS 95.450 and KRS 15.520 are grounded on his

supposition that the administrative reorganization was a mere “ruse” or

“subterfuge” for a demotion. He argues that this demotion was a disciplinary

action; therefore, the statutory procedures should apply. As a panel of this Court

noted in the prior litigation, “KRS 95.450(2) does not insulate an officer from any

action that he or she may subjectively believe to be objectionable[.]” Turcotte,

2018 WL 1444236, at *3. When Mayor Doty took office, Appellant was a police

-7- department employee with no job duties. His assignment to a position with job

duties, and the elimination of the position for which no job duties were assigned,

reasonably falls within the authority of the Mayor and the City of Glasgow to

restructure the police department. There is ample evidence in the record that the

restructuring was carried out for legitimate fiscal and administrative reasons, and

no evidence that the reorganization was a ruse or subterfuge for disciplinary action.

Summary judgment “shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, stipulations, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Kentucky Rule of Civil Procedure (“CR”) 56.03. “The record must be

viewed in a light most favorable to the party opposing the motion for summary

judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v.

Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary

judgment should be granted only if it appears impossible that the nonmoving party

will be able to produce evidence at trial warranting a judgment in his favor. Id.

“Even though a trial court may believe the party opposing the motion may not

succeed at trial, it should not render a summary judgment if there is any issue of

material fact.” Id. Finally, “[t]he standard of review on appeal of a summary

judgment is whether the trial court correctly found that there were no genuine

-8- issues as to any material fact and that the moving party was entitled to judgment as

a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).

When viewing the record in a light most favorable to Appellant and

resolving all doubts in his favor, we conclude that the circuit court correctly found

that there were no genuine issues as to any material fact, and that Appellees were

entitled to a judgment on this issue as a matter of law. Id.

Appellant goes on to argue that the circuit court erred in granting

summary judgment on his claims under KRS 61.102. This statute - informally

referred to as the Kentucky Whistleblower Act - provides that no public employee

shall be subject to reprisal as a result of making a public disclosure of any facts or

information relative to an actual or suspected violation of any statute, executive

order, or administrative regulation. KRS 61.102(1). Appellant claims that he

“possessed knowledge of alleged misconduct at the police department that was not

publicly known,” that the temporal proximity between the finality of the first

lawsuit and his reduction in rank resulted from Appellant reporting alleged

violations committed by the City or the Department, and that this adverse

employment action is violative of KRS 61.102. Appellant argues that the Barren

Circuit Court erred in granting summary judgment on this issue in favor of the

Appellees.

-9- KRS 61.102(1) states that in order to prevail on a claim, the public

employee must report:

any facts or information relative to an actual or suspected violation of any law, statute, executive order, administrative regulation, mandate, rule, or ordinance of the United States, the Commonwealth of Kentucky, or any of its political subdivisions, or any facts or information relative to actual or suspected mismanagement, waste, fraud, abuse of authority, or a substantial and specific danger to public health or safety.

The employee is required to report these facts to:

the Kentucky Legislative Ethics Commission, the Attorney General, the Auditor of Public Accounts, the Executive Branch Ethics Commission, the General Assembly of the Commonwealth of Kentucky or any of its members or employees, the Legislative Research Commission or any of its committees, members or employees, the judiciary or any member or employee of the judiciary, any law enforcement agency or its employees, or any other appropriate body or authority[.]

Id.

The purpose of the Kentucky Whistleblower Act is to protect public

employees who uncover and disclose public wrongdoing. Workforce Development

Cabinet v. Gaines, 276 S.W.3d 789, 792 (Ky. 2008). Appellant has not revealed

what facts or information of public wrongdoing he disclosed, nor to which

appropriate body or authority they were communicated. While intimating in

general terms that his act of whistleblowing occurred in the course of the first

litigation, Appellant’s assertions are woefully void of specifics as to the nature of

-10- the alleged wrongdoing or how it was reported. This is especially true in that the

first litigation was resolved in favor of the defendants. When viewing the record in

a light most favorable to Appellant and resolving all doubts in his favor, we

conclude that there are no genuine issues as to any material fact, and that Appellees

are entitled to a judgment on this issue as a matter of law. Scifres, supra.

Lastly, Appellant contends that the circuit court erred in granting

summary judgment on his free speech claims. After directing our attention to case

law holding that statements by public officials on matters of public concern must

be accorded First Amendment protection even though directed at their superiors,

Appellant asserts in general terms that his “speech – a violation of state law by a

public agency – addresses an issue that has long been clearly established as a

matter of public concern.” He argues that the factual and procedural history of

these proceedings demonstrate that he has a viable free speech claim, and that the

circuit court erred in summarily dismissing it.

Appellant does not reveal what speech was suppressed, nor how

Appellees allegedly engaged in such suppression. With little more than a broad,

unsupported claim of a First Amendment violation, and with no evidence of a

constitutional violation despite ample time for discovery having been given,

Appellant’s claim falls well short of the threshold necessary to overcome

Appellees’ motion for summary judgment. “A party opposing a motion for

-11- summary judgment cannot rely merely on the unsupported allegations of his

pleadings, but is required to present some affirmative evidence showing that there

is a genuine issue of material fact for trial.” Godman v. City of Fort Wright, 234

S.W.3d 362, 370 (Ky. App. 2007) (citations and internal quotation marks omitted).

Courts of the Commonwealth have “often stated that speculation and supposition

are insufficient to justify a submission of a case to the jury, and that the question

should be taken from the jury when the evidence is so unsatisfactory as to require a

resort to surmise and speculation.” O’Bryan v. Cave, 202 S.W.3d 585, 588 (Ky.

2006) (citation and internal quotation marks omitted). The Barren Circuit Court

properly so found.4

CONCLUSION

Appellant’s claims under KRS 95.450 and KRS 15.520 were properly

dismissed by way of summary judgment, as no evidence was adduced that

Appellant was subjected to a disciplinary action. As such, the statutory scheme for

addressing a disciplinary action was not implicated. All of the evidence of record

demonstrates that Appellant was assigned new job duties as part of a legitimate

administrative restructuring, and because his appointed position under former

4 Appellant does not appeal from the circuit court’s grant of summary judgment as to KRS 90.360. This statute, the Kentucky Civil Service Act, provides that cities may adopt a civil service form of governance, and that civil service employees are entitled to certain procedural safeguards. The Barren Circuit Court found that Appellant produced no evidence that the City of Glasgow adopted a civil service form of governance, and accordingly sustained Appellees’ motion for summary judgment on this issue.

-12- Mayor Trautman had no job duties. Further, a claim under KRS 61.102 cannot be

sustained, as Appellant did not demonstrate what facts or information of

wrongdoing he reported, nor to which appropriate body or authority they were

reported. Finally, Appellant cannot prevail on a claim that his First Amendment

right to free speech was violated, as he does not reveal what speech was allegedly

suppressed, nor in what manner. Accordingly, the entry of summary judgment was

appropriate, and we find no error. For these reasons, we affirm the summary

judgment of the Barren Circuit Court.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:

Matthew J. Baker Thomas N. Kerrick Bowling Green, Kentucky Matthew P. Cook Bowling Green, Kentucky

-13-