Failure To Attend Pre-Disciplinary Hearing Bars Later Court Appeal

Sean Daly was a police officer with the Hopkinsville, Kentucky Police Department. On February 3, 2003, Daly was arrested and charged with fourth degree assault relating to a domestic dispute with his estranged wife. A domestic violence order was issued and Daly was immediately suspended without pay from his employment.

More than four months later, the criminal charge against Daly was dismissed. Daly sought reinstatement to his prior position, citing a provision of Kentucky law that requires appeals hearings within 60 days of disciplinary action. The Police Chief responded by notifying Daly that he was again suspended without pay pending an administrative review of the domestic violence incident.

Less than a month later, the City notified Daly that the charges of inefficiency, as well as misconduct and violation of law had been brought against him. On July 15, the City proceeded with the hearing and terminated Daly’s employment. Daly neither attended the hearing nor appealed the termination of his employment.

Instead, some seven months later, Daly filed a lawsuit alleging that the City’s procedures violated both the Kentucky statute calling for the mandatory hearing within 60 days and his due process rights. The Kentucky Court of Appeals dismissed Daly’s lawsuit.

The Court found that Daly had a viable claim that the City failed to comply with Kentucky state law and violated his due process rights. However, the Court concluded, “Daly waived that defense by deliberately refusing to appear and raise it either during the scheduled hearing or during an appeal from the administrative order terminating his employment.”

The Court found that nothing in Kentucky state law “authorizes the bypass of long-established rules requiring the exhaustion of administrative remedies prior to the filing of a collateral action such as that now before us. As Daly failed to timely appear and raise his due process defense to the administrative proceedings, he was estopped from later raising the matter as an issue.”

Daly v. City of Hopkinsville, 2006 WL 657174 (Ky.App. 2006).

This article appears in the May 2006 issue