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Cincinnati Post - OH,USA
22 September 2007

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Court upholds officer's dismis

The Kentucky Court of Appeals has upheld the firing of a Florence police officer who admitted sending out nasty, obscene and mocking tirades over his patrol car's instant messaging system.

In a decision released Friday, the three-judge panel ruled that the Florence City Council's firing of David B. Cole in 2002 was not arbitrary, and therefore had to be upheld.

"The messages were laced with profanity, and certain of the messages disparaged fellow police agencies," said the unanimous decision, written by Senior Judge Paul W. Rosenblum.

"The city council's determination that the messages were embarrassing, indecent, profane or obscene messages was a reasonable determination and was not arbitrary. It follows that the council did not act arbitrarily in concluding that Cole engaged in a policy violation by sending the messages."

Cole was fired after being identified as one of five officers who sent inappropriate messages during a random search of the police department's computer program. Cole's messages ridiculed a community policing initiative, other officers and departments, the county park system, and Kmart.

The other officers were given counseling and a reprimand after they apologized for their messages. Cole was offered a one-day suspension after sending a letter defending his actions.

He fought that, but when his case went to a hearing before the city council, the officials approved the chief's recommendation to fire him.

"All of the officers except Cole wrote letters acknowledging their wrongdoing and expressing contrition," said the Court of Appeals decision.

"Cole, however, defended his messages as within the scope of legitimate police business, and did not express contrition. At the hearing, Cole acknowledged that his letter could be construed as 'sarcastic.'"

Cole filed suit after his termination, arguing that he lost his job not because of the messages but because he voiced concerns about management of the police department.

Then-Boone Circuit Judge Jay Bamberger originally threw out the lawsuit, ruling that various court rules had been violated in the filing. But the state Supreme Court kicked it back, saying such lawsuits have their own set of rules that were adhered to. Senior Judge Kevin M. Horne then dismissed the lawsuit.

The Court of Appeals said it could find little wrong with Horne's decision. His role, and the appellate court's, it said, was limited to finding whether the city council's decision was arbitrary.

Cole argued he was treated differently - and thus unfairly - from the other officers. But the appellate court called that argument "unpersuasive."

"The record discloses that the other officers, in contrast to Cole, recognized their misconduct, were contrite for their misconduct, demonstrated an inclination not to engage in the misconduct again, and accepted their punishment through the informal disciplinary system," the judges said.

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Cincinnati Post - OH,USA22 September 2007

Court upholds officer's dismis

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Cincinnati Post - OH,USA
22 September 2007