Glasgow Daily Times, Glasgow, KY

Local News

July 9, 2014

Fireman’s day in court, city and attorneys agree on certain stipulations

GLASGOW — A bench trial Wednesday in Barren Circuit Court that served as a former Glasgow firefighter’s appeal of his termination was much briefer than it had the potential to be.

Attorneys for former Glasgow Fire Department Sgt. Roger Hampton were expected to call witnesses to testify about how Hampton was disciplined, comparing his case to personnel decisions involving several other city of Glasgow employees. That approach, attorneys had predicted, could have stretched the trial into a second day.

But before the proceeding began Wednesday, attorneys for both sides agreed to a written list of events they agreed to enter into the record as facts, so no witnesses were called. The “joint stipulations” summarize a wide range of actions committed by 10 Glasgow police officers, three Glasgow firefighters and three Department of Public Works employees – none of whom is named – as well as the city’s responses to those actions. Seven of the 17 circumstances were added by City Attorney Ben Rogers to demonstrate the city had disciplined the employees.

“The parties have worked hard and have stipulated various personnel matters,” Barren Circuit Judge Phillip Patton said at the beginning of the trial, which lasted less than 90 minutes. Patton later thanked the attorneys for their efforts on the document, saying, “It certainly expedited this proceeding.”

Hampton’s termination in 2012 was based on Glasgow City Council’s finding that Hampton was guilty of having a positive drug screen in conjunction with his failure to report that he was taking a prescription drug.

Rogers had filed a pretrial motion asking Patton to exclude information about other city employees – evidence Hampton’s attorneys wanted to use to demonstrate their client had been treated unfairly and inconsistently – but Patton denied the motion. While participating in the stipulation process, Rogers maintained an objection he had entered earlier to using the evidence.

The fact Hampton took a Valium he had been prescribed was not the key issue, argued Tim Gillenwater, one of his attorneys. It only became a problem because Hampton didn’t report it  – and he was only required to report it “if it altered physical or mental ability,” which it didn’t, Gillenwater said.

Gillenwater contends the words “alter” and “ability” are too vague and need better definition. He pointed to previous testimony from Glasgow Fire Department Chief Tony Atwood acknowledging that the words, in this context, are up to an employee’s physician to interpret. In recommending termination for Hampton, though, Atwood imposed his own understanding of the wording, Gillenwater argued.

A portion of the policy says the employee should consult with his or her doctor about the effect of a drug. Hampton did so and was essentially told that one Valium wouldn’t alter his abilities, Gillenwater said.

In a previous proceeding, the city’s expert witness, a pharmacist, answered “absolutely” to whether the dosage could adversely affect some people but not others, Gillenwater said in arguing the council had insufficient evidence to support its finding of guilt.

Rogers, meanwhile, argued the drug test occurred according to city policy after Hampton reported being injured on duty at a house fire in April 2012, and that the drug can affect affect mental or physical ability. He said Hampton had been charged with other offenses as well, but only the one involving the nondisclosure of the prescription resulted in termination, which city policy says can happen with such a violation.

Rogers said precedent indicates the appellate court – in this case, Patton – must uphold the earlier decisions of the council if it is supported by the evidence, and that the appeal to the circuit court is not the place to hear testimony or introduce new evidence. It is the purpose of the appeal to determine whether the punishment was arbitrarily administered, which Rogers contended was not.

In his rebuttal, Gillenwater told Patton it was exactly his role to consider the evidence, asking how the judge could possibly determine whether the earlier decision was based on reasonable evidence without reviewing the evidence himself.

A decision is still a few weeks away. Patton said he wants each side to submit by July 25 findings of fact, conclusions of law and proposed orders. The attorneys are to specify the portions of the case record they believe support their positions, he said.

Within a week to 10 days after receiving those documents, Patton said, he expects to enter his final ruling.

“It’s all in Judge Patton’s hands,” Gillenwater said after the proceeding. “I think that anybody that reads through the stipulations will see that the city is not applying its policies in a ‘fair and consistent’ manner as their own policy dictates.”

“We pretty much introduced all the evidence we wanted to via the stipulations,” Gillenwater added. “You can read through them – they’ve got a lot of meat in there – and make your own decision. We felt it was just as efficient to (Hampton), and it allowed us to spend more time addressing some of the other points that we think are of equal, if not greater, importance.”

Rogers said afterward that the stipulations “certainly sped up the trial.”

“I think the city made a good presentation to the court about what the issues are,” he said. “It’s not a trial on the merits; it’s an appeal, so it’s got a little different turn to it.”

He declined to provide or confirm the names of the city employees involved in the list of stipulations.

“I think both sides were in agreement it wasn’t necessary to bring in the names of individuals to make their points,” Rogers said. “In order not to cause any additional distress to others not part of the Hampton case, that’s what we did.”

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