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Laramie County Sheriff's Department v. Kenneth Cook

March 28, 2012

LARAMIE COUNTY SHERIFF'S DEPARTMENT, APPELLANT (RESPONDENT),
v.
KENNETH COOK, APPELLEE (PETITIONER).



Appeal from the District Court of Laramie County The Honorable John G. Fenn, Judge

The opinion of the court was delivered by: Kite, Chief Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made before final publication in the permanent volume.

[¶1] Kenneth Cook was terminated from his employment as a Laramie County Sheriff Department (Sheriff Department) deputy for violating department policies related to report writing and firearms security. Deputy Cook requested a contested case hearing before the Laramie County Sheriff (Sheriff), who upheld his dismissal from the department. He then petitioned the district court for review. The district court reversed, concluding that the record did not contain substantial evidence demonstrating cause existed to dismiss Deputy Cook on the basis of his violation of department policies. The Sheriff's Department appealed to this Court. We agree with the district court that the record does not substantiate the Sheriff's findings that there was sufficient cause to terminate Deputy Cook's employment with the Sheriff's Department.

[¶2] We, therefore, affirm the district court's reversal of the Sheriff's decision.

ISSUE

[¶3] Both parties present the same issue for our review:

Whether the Laramie County Sheriff's decision to terminate Appellee from his employment as a deputy sheriff was supported by substantial evidence, was in accordance with law, or was arbitrary, capricious, or constituted an abuse of discretion.

FACTS

[¶4] Deputy Cook was a deputy sheriff with the Sheriff's Department. During the early morning hours of December 27, 2009, Deputy Cook was performing off-duty security for the Outlaw Saloon in Cheyenne, Wyoming. In accordance with department policy, he was dressed in uniform even though he was technically working for the Outlaw Saloon. United States Air Force Sergeant Timothy Finch, who was stationed at F.E. Warren Air Force Base, and Russell Edwards, an off-duty Cheyenne Police Department officer, got into a fight in the bar. At the request of saloon personnel, Deputy Cook and another deputy who was also working off-duty security at the Outlaw Saloon escorted the men out of the establishment. Deputy Cook took charge of Sergeant Finch, who stated that his face hurt as a result of the fight. Deputy Cook offered to call an ambulance. The sergeant initially refused but later accepted the offer, and he was transported to the hospital.

[¶5] After finishing his shift at the Outlaw Saloon at approximately 2:00 a.m., Deputy Cook reported for duty at the Sheriff's Department at 6:15 a.m. on the same day; he was also on duty the following three days. Deputy Cook did not initially prepare a report on the incident because he said "it wasn't a typical call for service where somebody called and asked for our help," neither Sergeant Finch nor Officer Edwards indicated he wanted to press charges, and he did not see any visible sign of injury to Sergeant Finch.

[¶6] On December 28, 2009, the victim assistance coordinator for the Sheriff's Department was contacted by an official from the F.E. Warren Air Force Base, seeking compensation for Sergeant Finch's injuries. He had apparently suffered a detached retina, broken eye socket and broken cheekbone. The victim assistance coordinator asked Lieutenant Linda Gesell about the incident, but she did not know anything about it. Later, the victim assistance coordinator contacted Deputy Cook and he provided information about the incident. Lieutenant Gesell walked in during this conversation and asked for Deputy Cook's report. Deputy Cook replied that he had not written a report and did not feel that one was necessary. She instructed him to prepare a report and submit it to her the next day.

[¶7] Deputy Cook complied with Lieutenant Gesell's request and submitted a report the next day. Nevertheless, she opened an administrative investigation to review his possible violations of department policies during the Outlaw Saloon incident. After her investigation, Lieutenant Gesell determined that Deputy Cook had violated department policies and recommended that he be terminated from his position. Deputy Cook's supervisor, Captain Richard Hillegas, agreed with the recommendation of dismissal and placed Deputy Cook on administrative leave pending a hearing.

[¶8] Deputy Cook was on duty when he was placed on administrative leave and was escorted to his patrol car to gather his department-issued weapons. His department-issued shotgun was not in his patrol car, but was, instead, in a gun locker at his brother's house. Upon learning that Deputy Cook did not have the shotgun in his car, Lieutenant Gesell issued a second recommendation for termination, concluding that he had violated the department's firearm policy. Captain Hillegas again agreed with Lieutenant's Gesell's recommendation.

[¶9] Pursuant to Deputy Cook's request, a contested case hearing was held on April 29, 2010, before the Sheriff. After the hearing, the Sheriff issued Findings of Fact, Conclusions of Law and an Order terminating Deputy Cook from the Sheriff's Department. Deputy Cook petitioned the district court for review of the Sheriff's decision. The district court reversed, concluding that the record did not support the Sheriff's determinations that Deputy Cook had violated department policies and, consequently, did not establish cause for his termination. The Sheriff's Department appealed to this Court.

STANDARD OF REVIEW

[¶10] Wyo. Stat. Ann. § 18-3-611(b) (LexisNexis 2011) states that non-probationary full-time deputies employed by large sheriff's departments are entitled to a hearing before being dismissed from employment. The Wyoming Administrative Procedure Act governs the proceeding; accordingly, judicial review of a sheriff's decision after a contested case hearing is accomplished under Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2011):

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:

(i) Compel agency action unlawfully withheld or unreasonably delayed; and

(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:

(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;

(B) Contrary to constitutional right, power, privilege or immunity;

(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;

(D) Without observance of procedure required by law; or

(E) Unsupported by substantial evidence in a case reviewed on the record of an agency ...


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