Glasgow Daily Times, Glasgow, KY

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June 17, 2014

City and Roger Hampton attorneys face off, Firefighter’s vs. other employees’ actions a point of contention

GLASGOW — Attorneys for a former Glasgow firefighter believe city officials broke their own policy of treating employees fairly and consistently with regard to discipline.

They insisted to Barren Circuit Judge Phillip Patton during a hearing Tuesday that they must be able to present examples of how other employees have – or in some cases, have not – been disciplined to prove that unfairness and inconsistency.

City Attorney Ben Rogers said the discipline of other employees is irrelevant to how an unrelated situation with Roger Hampton was handled; he had filed a motion asking the judge to limit testimony and evidence to only what is directly related to Hampton’s 2012 termination.

Glasgow City Council backed a decision to fire Hampton, and his attorneys, Tim Gillenwater and Roger’s brother, Ron Hampton, have appealed the decision to circuit court. The court trial had been set for Tuesday, but because of the possibility it would go into a second day and Patton is not available Wednesday, it was rescheduled for July 9 and potentially July 10.

Last summer, Patton heard arguments from both sides on the specific issue of whether two charges against Roger Hampton – one of which got him terminated and one of which didn’t – were really the same charge, just with different wording. Patton decided the two charges were redundant and remanded the case back to the council, which is named in the appeal lawsuit along with the City of Glasgow and the fire department, for further findings and clarification.

During another hearing with the council, Mayor Rhonda Riherd Trautman limited the time for each side to present its case, and she would not allow Gillenwater to bring up any transgressions of other employees of the police or fire departments. In addition to rejecting attempts to bring those employees’ records in as evidence, the mayor blocked an attempt to subpoena certain individuals, saying their testimony would be irrelevant. Gillenwater objected to each and every one of those decisions, which the council decided to allow.

At the conclusion of that hearing, the council unanimously withdrew the count for which Hampton was suspended and kept intact the count for which he was fired, and after that, Hampton’s attorneys filed the appeal.

Rogers said Tuesday that because Gillenwater attempted to bring up the other employees’ issues with the council, he anticipated he would try it also in circuit court, so he wanted to address it in advance.

Rogers cited a case that he contended set a precedent for not allowing issues of different treatment of other employees under a different set of facts, because the Court of Appeals said in that case that treating employees differently was not evidence of whether a particular person was fired arbitrarily and it should not be considered.

Gillenwater said that case was based on statutory procedures under a merit board, but the governing standard here is the city’s own policy. He reviewed what had happened regarding the restrictions at the city council hearing.

He said the city’s conduct in this case was “the height of unfairness.”

“The farther we go, every step we go down the road, seems to get more and more unfair,” Gillenwater said. “Now what kind of fundamental due process is this?”

He said the city wouldn’t let them add these issues to the record and now, on appeal, it’s trying to use the fact that there is no record of the issues against them. Meanwhile, the laundry list of problems with certain other employees keeps growing, he said, role playing with different voices radio traffic in which a Glasgow Police Department officer reported he was in one location when he was actually not there – an action for which the officer got suspended five days.

Rogers objected, saying he may be providing “entertaining opera,” but he should stick to the issue at hand.

Gillenwater said the city wants to block the information from being presented to save it from embarrassment. He suggested that Patton let him present the information he wants to, and then the judge could determine what is relevant and what’s not, rather than having Rogers constantly trying to handcuff him.

Rogers said that if Gillenwater is permitted to “trot in” this evidence regarding other how others had or had not been disciplined, “it becomes incumbent on me, to properly represent the city to bring before the court the scores of other cases of city employees who have been discharged for various reasons, resigned under a cloud of potential charges, and it’s truly unfair to those people, but it would be necessary to do that to rebut this allegation of disparate treatment which the Court of Appeals tells us is not admissible.”

Even if the case to which Rogers referred earlier, Crouch v. Police Merit Board, applies, “It doesn’t support the City of Glasgow, it supports Roger,” Gillenwater said.

Gillenwater said the ruling in Crouch says it is incumbent on the court hearing the appeal to base its decision on transcripts of prior proceedings, and “any other evidence relevant to the issue of arbitrariness” and, in another place, it says the appellant court may review the record, briefs and any other evidence and testimony.”

Hampton had testified in an earlier hearing that he felt he had been treated unfairly and vindictively, so the issue has been raised in the prior record, “and we think we should be allowed to flesh it out, which has so far been prohibited by administrative fiat.”

Rogers said the excerpts from Crouch that Gillenwater stated didn’t provide enough context, because it goes on to say:

“To determine arbitrariness, the appellate court may review the record, the briefs, and any other evidence or testimony which would be relevant to that specific, limited issue. The appeal is not the proper forum to retry the merits. It is limited only to the question of whether the Board’s action was clearly unreasonable.”

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