In a 2-1 decision that seems likely to presage further appeals, the Kentucky Court of Appeals has ruled that the State’s Police Officer Bill of Rights only applies to citizen-initiated complaints, not complaints initiated by a law enforcement agency itself. The case involved Todd Pearce, who had been terminated from his job as a police officer for the University of Louisville. The charges against Pearce included allegations that he had failed to timely respond to a fire alarm and then failed to write a report about the incident, and that he had improperly engaged in a wrong-way traffic pursuit.

There was little debate in the case that the University’s investigation of Pearce failed to comply with Kentucky’s statutory Police Officer Bill of Rights. Rather, the case turned on the question of whether the Bill of Rights even applied to cases like Pearce’s, where the employer rather than a citizen initiated the charges.

The Kentucky Court of Appeals agreed with the University that the Bill of Rights did not apply to department-initiated investigations. The Court cited the “purpose statement” that begins the Bill of Rights, a clause which states that the Bill of Rights was enacted “in order to establish a minimum system of professional conduct of the police officers of local units of government of this Commonwealth” by creating standards of conduct “to deal fairly and set administrative due process rights for police officers…and at the same time providing a means of redress by the citizens of the Commonwealth for wrongs allegedly done to them by police officers.” In the eyes of the Court, “this language suggests that the purpose of the statute is to provide procedural due process to police officers who are accused of wrongdoing by citizens.”

The Court also cited the law’s definition of a “complaint” as including “any complaint taken from any individual alleging misconduct on the part of any police officer” and noted that the Bill of Rights “sets the procedures to be followed in cases involving allegations of criminal activity, abuse of official authority, or a violation of rules and regulations of the department.” After citing language from the Bill of Rights that “nothing in this section shall preclude a department from investigating and charging an officer both criminally and administratively,” the Court found that “from these provisions, there seems no doubt that police departments may initiate their own disciplinary proceedings, in the absence of a citizen complaint, outside of the scope of the Bill of Rights.”

Pearce also argued that without regard to the Bill of Rights, the University wrongfully deprived him of his rights to due process by not allowing his attorney to appear at a pre-disciplinary hearing. The Court rejected this argument as well, finding that “although Kentucky courts appear not to have considered the issue, other courts have consistently recognized that there is no right to counsel at a pre-termination hearing when the employee will be granted a more substantial post-termination hearing with full due process protection. Thus, Pearce’s non-participation in the pre-termination hearing because his counsel was not allowed to attend affords him no relief. By refusing to participate, Pearce effectively waived any claim of a due process violation emanating from that proceeding.”

The dissenting judge, describing the Court’s majority opinion on the Bill of Rights question as “illogical,” that he believed that “a plain reading of the Bill of Rights makes it applicable to all complaints against police officers.”

Pearce v. University of Louisville ex rel. its Bd. of Trustees, 2011 WL 5599540 (Ky. App. 2011).