JUDGE TOM KING, JR. (Dissenting Opinion) I strongly DISSENT from the Opinion of my colleagues.

The undersigned is firmly convinced that the Jefferson County Personnel Board (JCPB) did not rely on substantial and legal evidence in making its decision to terminate this fifteen (15) year veteran patrolman. The Presiding Judge in this matter provided a thorough review of the record in his Order. I would, however, challenge any reader of the Order to attest that the decision of the JCPB, with two (2) members voting and one (1) abstaining, based its decision on substantial and legal evidence. I. The officers should not have been dispatched to that location and situation. First and foremost, I agree with the Concurring Opinion that the Chief of Police would be well-advised to review the departments protocols for determining under what circumstances police intervention is warranted. In substantiation of the Concurring Opinion, Officer Goree testified that though the officers should assist on a 911 call, the officers should not intervene in a civil dispute because that is a violation of rules and regulations. This official inquiry should have commenced with such an analysis. II. Patrolman Everett Was Backup The situation had already intensified when Officer Hall called for back up, resulting in Patrolman Everett being dispatched to the scene. Apparently, this fact was not considered as a mitigating circumstance in deciding Patrolman Everetts punishment. III. Cedric Lowes Behavior Furthermore, a complete reading and analysis of the file leads this jurist to the conclusion that but for Mr. Lowes refusal to abide by the lawful commands of Officer Hall and then Patrolman Everett (several times), this incident would not have taken place. Mr. Lowes unlawful behavior provoked the entire situation. The charge of disorderly conduct was a mere aspect of the events. It would appear that the police would have been justified in more serious charges as well, to include resisting arrest. IV. The investigating officer failed in her responsibility to thoroughly and Conscientiously perform her assignment. To quote Officer Goree, I didnt interview Mr. Weiss because I had pretty much proven my case with the witness. And the video provided to me. So the allegations were proven with the video. Officer Goree also testified that had she known the information contained in the sworn deposition of Mr. Weiss with regard to the manner in which Patrolman Everett obtained the keys from Mr. Lowe, that information possibly would have altered the conclusions and recommendations that she had made to Chief Roper. In fact, Mr. Weisss testimony refutes the allegations made by Mr. Lowe against Patrolman Everett. As for the video, the record reveals that the video is between 90 to 180 seconds of a one and a half to two hour situation. What did Officer Goree mean by pretty much proven my case? In making a recommendation for termination, should there be more regard than just pretty much proving my case? Does an

incomplete investigation amount to substantial evidence? Should an incomplete and negligent investigation be allowed to amount to substantial and legal evidence? This Judge submits that more is required of an investigation contemplating termination of a long-term employee. V. Failure of Hearing Officer and JCPB to Consider Comparables This abject failure to follow its own rule regarding the three (3) year window of disciplinary actions is inexcusable. In fact, the policy was ignored despite evidence that another officer was given only a fifteen (15) day suspension for hitting a handcuffed suspect. VI. No Progressive Discipline Patrolman Everett has served on the front line as a patrolman for his entire fifteen (15) year service with the BPD. While he was charged with several minor violations, this is to be expected when reviewing the file of any long-term patrolman assigned strictly to the street. However, no previous incident approaching a comparable charge in his otherwise distinguished career was so cited. In fact, the file of Patrolman Everett contains seven (7) separate incidences where he has been honored for his outstanding service in the BPD, to include three (3) by this Chief of Police. Furthermore, the most recent honor came just eleven months prior to the incident made the basis of this case. VII. Conclusion In sum, this investigation was flawed from the start and remained flawed each step in the process. The result of this flawed investigation is the unjust termination of Patrolman Everett. While the police should be held to the highest standards, our citizens and the legal system expect the termination of a police officer to be based upon substantial and legal evidence. In closing, I am in my twelfth (12th) year of judicial service, and in no instance have I seen the necessity to write a Concurring Opinion. Furthermore, this is the first occasion where I have authored a Dissenting Opinion. However, I would consider it a dereliction of my oath and duties as a Circuit Judge to refrain from voicing my assessment and genuine concerns regarding this serious matter. I hereby strongly DISSENT, and request that all who were involved in this regrettable termination to review the situation in light of the Opinion, Concurring Opinion and this Dissenting Opinion. All things considered, Patrolman Everetts termination was not based on substantial and legal evidence. Therefore, the decision to terminate was made in error and cannot, as a matter of law, be allowed to stand. Judge Tom King, Jr. (Dissenting opinion)