Entered 23-CI-00437 03/14/2024 Krissie Coe Fields, Barren Circuit Clerk

NOT ORIGINAL
DOCUMENT
03/18/2024 12:31:08
PM COMMONWEALTH OF KENTUCKY
BARREN CIRCUIT COURT
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CIVIL ACTION NO. 23-CI-00437

GUY J. TURCOTTE PLAINTIFF

v. ORDER

CITY OF GLASGOW, KENTUCKY and

CITY OF GLASGOW POLICE DEPARTMENT DEFENDANTS

This matter comes before the Court based on the Complaint filed on August 18, 2023 by

Plaintiff Guy J. Turcotte (hereinafter “Turcotte”) against the City of Glasgow (“the City”) and the

Glasgow Police Department (the “GPD”) pursuant to KRS 15.520. Turcotte challenges the result

of a disciplinary proceeding, over which Mayor Henry Royce (“Royce”) presided, which resulted

in Royce’s Written Findings and Decision of Appointing Authority dated August 10, 2023. In that

decision, Royce set out his findings and immediately terminated Turcotte. The parties have filed

written briefs with the Court, and this matter is ripe for decision. The Court having reviewed the

record and applicable law, and being sufficiently advised,

IT IS HEREBY FOUND, ORDERED, AND ADJUDGED as follows:

At all relevant times, Turcotte was employed by the GPD. On July 18, 2023, Royse

conducted an administrative hearing to ascertain whether Turcotte had violated GPD policies, and,

if so, to determine the appropriate disciplinary action.1 Counsel for Turcotte moved for a

continuance on the ground that, because a misdemeanor criminal prosecution arising out of the

same set of facts was ongoing, he would be asserting his privilege against self-incrimination.
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1
The underlying incidents have been described in detail in other judicial orders and a Court of Appeals opinion, and
except to the extent necessary they will not be discussed in this order.

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 Entered 23-CI-00437 03/14/2024 Krissie Coe Fields, Barren Circuit Clerk

NOT ORIGINAL
DOCUMENT
03/18/2024 12:31:08
PM Counsel for Defendants countered that a delay in the proceedings was not required, noting that
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Turcotte was not being compelled to testify and his silence would not be used against him.

Royce declined to grant the continuance, relying on Maze v. Kentucky Judicial Conduct

Commission,2 which he interpreted to establish that “to proceed with an administrative hearing

while companion criminal charges are pending[ ] does not violate an individual’s due process

rights.”3 Royce added that he did not hold Turcotte’s silence against him. He also noted that

Turcotte had previously testified under oath in a Barren Circuit Court, Div. II (Family Court) case4

involving some of the allegations; that “extensive judicial findings,” which he had reviewed, had

been entered in that Family Court action; and that an interpersonal protective order (“IPO”) had

been entered against Turcotte as a result of that case.5

Several witnesses testified at the hearing. Each was subject to cross-examination by

Turcotte’s attorney. Further, Turcotte was given the opportunity to present evidence in his defense,

but he chose not to testify as previously noted.6 Following the hearing, and after reviewing the

testimony of the witnesses, the findings and order entered by the Family Court, and the arguments

of counsel, Royce found substantial evidence that Turcotte had violated GPD Policy 1.1 ETHICS

and Policy 12.1 CODE OF CONDUCT. He concluded that Turcotte should be immediately

terminated from his employment with the GPD. This administrative appeal followed.

2
575 S.W.3d 204 (Ky.2019).
3
Written Findings and Decision of Appointing Authority, August 10, 2023 (hereinafter “Findings”), at p.2.
4
Barren Circuit Court, Div. II (Family Court) Action No. 23-D-00022-001. Because the Court, under KRE 201(b),
may take judicial notice of a court record in another case (see Rogers v. Commonwealth, 366 S.W.3d 446
(Ky.2012)), the Court notes that the IPO hearing occurred on February 8, 2023. An IPO was entered February 17,
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2023, and it was affirmed on appeal by the Kentucky Court of Appeals in Turcotte v. B.E.D., No. 2023-CA-0244-
ME, July 14, 2023. Discretionary review was denied on or about December 6, 2023.
5
Findings, at pp. 2-3; 5; 9.
6
Although Turcotte did not attend the hearing in person, his attorney was present throughout.

Entered 23-CI-00437 03/14/2024 Krissie Coe Fields, Barren Circuit Clerk

 Entered 23-CI-00437 03/14/2024 Krissie Coe Fields, Barren Circuit Clerk

NOT ORIGINAL
DOCUMENT
03/18/2024 12:31:08
PM Being a police officer who has been found guilty of one or more charges levied through a
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citizen complaint, Turcotte has the right to challenge Royce’s decision pursuant to Kentucky

Revised Statute (KRS) 15.520.7 When a police officer who is found guilty of a charge in a

disciplinary proceeding appeals the action of the hearing authority by bringing an action in circuit

court, the circuit court’s review is to be based solely upon the administrative record created before

the hearing authority and any new evidence offered by the officer regarding alleged arbitrariness

on the part of the hearing authority.8 The standard guiding the reviewing court is the “clearly

erroneous” rule set out in Kentucky Rule of Civil Procedure (CR) 52.01.9

In undertaking a disciplinary proceeding against a police officer, the function of the hearing

authority10 is to make two determinations: “first, whether the officer has violated the rules and

regulations of the department and if so, second, it must exercise its discretion in imposing a

penalty. The first is subject to judicial review; the second is not.”11 In other words, the reviewing

court may not interfere with the choice of available discipline; it is without authority to change the

penalty imposed by the hearing authority in the absence of a finding that the threshold decision

was arbitrary and capricious or was a clear abuse of discretion.12 “Sound public policy requires

that the matter of punishment and discipline of a police officer be left to the city.”13

7
The terms “guilty” and “charge” as used in KRS 15.520 do not have the same meaning as they do in a criminal
setting.
8
KRS 15.520(8)(a).
9
Stallins v. City of Madisonville, 707 S.W.2d 349 (Ky.App.1986).
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10
Turcotte tacitly accedes that, in this matter, Royce was the appropriate hearing authority.
11
Stallins, 707 S.W.2d at 350.
12
City of Louisville by Kuster v. Milligan, 798 S.W.2d 454, 458 (Ky.1990).
13
Stallins, 707 S.W.2d at 350 (citing City of Columbia v. Pendleton, 595 S.W.2d 718 (Ky.App.1980)).

Entered 23-CI-00437 03/14/2024 Krissie Coe Fields, Barren Circuit Clerk

 Entered 23-CI-00437 03/14/2024 Krissie Coe Fields, Barren Circuit Clerk

NOT ORIGINAL
DOCUMENT
03/18/2024 12:31:08
PM Fundamentally, the reviewing court acts as a check on arbitrary decision-making.14
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“Judicial review of an administrative agency’s action is concerned with the question of

arbitrariness.”15 The term “arbitrary” means “clearly erroneous,” and a decision is clearly

erroneous when it is unsupported by substantial evidence.16 An agency’s ruling is arbitrary if the

agency exceeds the constraints of its statutory powers; if the party affected by the ruling is not

afforded procedural due process; or if the agency’s action is not supported by substantial

evidence.17 Substantial evidence has been defined as “being evidence of substance and relevant

consequence, having the fitness to induce conviction in the minds of reasonable men.”18

Turcotte’s primary challenge is based not on an argument that the City has exceeded its

statutory authority, or that there was insufficient evidence, but on Royce’s decision not to postpone

the hearing in light of the parallel criminal prosecution pending against Turcotte in Barren District

Court. This is essentially an argument that he was not afforded due process.

It is not uncommon that alleged conduct may subject one to simultaneous administrative

and criminal proceedings. “The civil and regulatory laws of [government] frequently overlap with

the criminal laws, creating the possibility of parallel civil and criminal proceedings, either

successive or simultaneous.”19 This is not per se impermissible.20 In fact, the Kentucky Supreme

14
Kentucky Board of Nursing v. Ward, 890 S.W.2d 641 (Ky.App.1994).
15
Commonwealth, Transportation Cabinet v. Cornell, 796 S.W.2d 591, 594 (Ky.App.1990) (quoting American
Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Commission, 379 S.W.2d 450,
456 (Ky.1964)).
16
Crouch v. Police Merit Board, 773 S.W.2d 461, 464 (Ky.1988).
17
Ward, 890 S.W.2d at 642–43.
18
Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308 (Ky.1972) (quoting O’Nan v. Ecklar
Moore Express, Inc., 339 S.W.2d 466 (Ky.1960)).
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19
Maze v. Kentucky Judicial Conduct Commission, 575 S.W.3d 204, 209 (Ky.2019) (quoting SEC v. Dresser
Industries, Inc., 628 F.2d 1368, 1374 (D.C. Cir. 1980) (internal citations omitted)).
20
“In the absence of substantial prejudice to the rights of the parties involved, such parallel proceedings are
unobjectionable under our jurisprudence.” Maze, 575 S.W.3d at 209 (citing Dresser, 628 F.2d at 1374).

Entered 23-CI-00437 03/14/2024 Krissie Coe Fields, Barren Circuit Clerk

 Entered 23-CI-00437 03/14/2024 Krissie Coe Fields, Barren Circuit Clerk

NOT ORIGINAL
DOCUMENT
03/18/2024 12:31:08
PM Court has held that a stay of proceedings under such circumstances should not be the “default
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position.”21 The burden is upon the party seeking a stay to prove that his circumstances require a

delay in the civil proceedings during the criminal prosecution.22

Turcotte argues that the disciplinary hearing should have been delayed until after the

criminal charges against him have been resolved so that he did not have to choose between

testifying at the hearing and remaining silent. He contends that “[t]he strongest case for deferring

civil proceedings until after completion of criminal proceedings is where a party under indictment

for a serious offense is required to defend a civil action involving the same matter.”23 That the

pending criminal case concerns some of the same alleged conduct as the disciplinary action under

consideration is beyond dispute, but it is significant to note that the disciplinary action related to

more than just the conduct alleged in the criminal complaint.

It is important, moreover, to consider the underlying privilege itself. “The right against

self-incrimination provides two types of protection in criminal proceedings: (1) a defendant cannot

be compelled to testify, and (2) the factfinder cannot draw adverse inferences by the defendant’s

refusal to testify.”24 Royce did not attempt to force Turcotte to testify, and he specifically noted

that he did not hold Turcotte’s absence or his invocation of the right to remain silent against him.25

Turcotte’s right to remain silent was not violated. Therefore, the issue boils down to whether Royce

21
Barnes v. Goodman, 626 S.W.3d 631 640 (Ky.2021) (quoting Lehmann v. Gibson, 482 S.W.3d 375, 384
(Ky.2016)).
22
Maze, 575 S.W.3d at 211: “The burden is on the party seeking the stay to show ‘pressing need for delay’ and ‘that
neither the other party nor the public will suffer harm from entry of the order.’” [Citations omitted.]
23
Maloney v. Gordon, 328 F.Supp.2d 508, 511 (D.Del.2004) (quoting Javier H. v. Garcia–Botello, 218 F.R.D.
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72, 74 (W.D.N.Y.2003)).
24
Barker v. Commonwealth, 379 S.W.3d 116, 124 (Ky.2012) (citing Griffith v. California, 380 U.S. 609, 85
S.Ct. 1229, 14 L.Ed.2d 106 (1965)).
25
Findings, at p. 2.

Entered 23-CI-00437 03/14/2024 Krissie Coe Fields, Barren Circuit Clerk

 Entered 23-CI-00437 03/14/2024 Krissie Coe Fields, Barren Circuit Clerk

NOT ORIGINAL
DOCUMENT
03/18/2024 12:31:08
PM abused his discretion in proceeding with the disciplinary hearing despite Turcotte’s invocation of
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the privilege against self-incrimination.

Certainly, Turcotte’s wish to delay the disciplinary proceedings so he did not have to

choose whether or not to testify is understandable. “But the Constitution does not forbid ‘every

government-imposed choice in the criminal process that has the effect of discouraging the exercise

of constitutional rights.’”26 The Kentucky Supreme Court has stated, “[i]t is well settled that the

government need not make the exercise of the Fifth Amendment privilege cost free.”27 As a general

rule, it does not violate the privilege against incrimination to put one in the position where his

“choice to testify in his own behalf may open the door to otherwise inadmissible evidence which

is damaging to his case.”28

Granting a stay under these circumstances is discretionary. Under Kentucky law, the

following factors provide “strong guidance” when addressing the appropriateness of a request to

stay administrative or other civil proceedings while a related criminal matter is pending: “(1) the

extent to which the evidentiary material in the civil and criminal cases overlap; (2) the status of

the criminal proceeding; (3) the interests of any parties in staying the civil proceeding; (4) the

prejudice to any parties from staying the civil proceeding; [(5)] the interests of persons that are not

parties to the litigation; [(6)] court convenience; and [(7)] the public interest in the pending civil

26
Maze, 575 S.W.3d at 212 (quoting Jenkins v. Anderson, 447 U.S. 231, 236, 100 S.Ct. 2124, 65 L.Ed.2d 86
(1980)) (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 30, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973)).
27
Maze, 575 S.W.3d at 212 (quoting McKune v. Lile, 536 U.S. 24, 41, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002)
(Kennedy, J., dissenting)) (citing Jenkins, 447 U.S. at 238, 100 S.Ct. 2124; Williams v. Florida, 399 U.S. 78, 84-
85, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970)).
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28
Maze, 575 S.W.3d at 212 (quoting McGautha v. California, 402 U.S. 183, 213, 91 S.Ct. 1454, 28 L.Ed.2d 711
(1971)) (vacated on other grounds by Crampton v. Ohio, 408 U.S. 941, 92 S.Ct. 2873, 33 L.Ed.2d 765 (1972));
Spencer v. Texas, 385 U.S. 554, 561 n.7, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); Michelson v. United States, 335
U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948).

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 Entered 23-CI-00437 03/14/2024 Krissie Coe Fields, Barren Circuit Clerk

NOT ORIGINAL
DOCUMENT
03/18/2024 12:31:08
PM and criminal actions.”29 Royce’s written findings demonstrate that he considered these factors and
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did not abuse his discretion in doing so.

The hearing conducted before Royce involved the testimony of four separate witnesses,

each of whom was subject to vigorous cross-examination; a review of a hearing before the Family

Court at which Turcotte testified under oath; the introduction of several exhibits; and arguments

of counsel. While some of this information overlapped with evidence that could be presented at

the misdemeanor trial, not all of it did.30 For example, Royce’s decision was based at least in part

on factors other than the allegation of inappropriate touching, including that Turcotte “flashed his

gun and badge” to gain access to areas not accessible to the public; that he stated, “It’s okay, I’m

a cop,” while on personal as opposed to official business, for the same reason; that he engaged in

“highly inappropriate” conduct, including making comments and surreptitiously taking

photographs of a worker from behind while she was bending over, occurring in “a commercial

business environment” but which would not have been “remotely acceptable” in any context; and

that he had an IPO against him which contained restrictions which would interfere with his ability

to act as a police officer.31 In other words, there was considerably more evidence involved in this

proceeding than the proof which would be involved in the pending criminal prosecution for an

offense that essentially amounts to touching another person inappropriately.

29
Maze, 575 S.W.3d at 210–11 (quoting Lehmann v. Gibson, 482 S.W.3d 375, 384 (Ky.2016)).
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30
The record indicates that Turcotte’s charge in Barren District Court is Harassment with Physical Contact; the
complaint alleges that he grabbed the alleged victim against her will, pulled her against him, did not let her go, and
placed his hand near her crotch in what she described as a sexual area.
31
Findings, at pp. 6-9.

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NOT ORIGINAL
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03/18/2024 12:31:08
PM Further, there was nothing in the record before Royce to indicate the length of the proposed
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delay, and there are statutory time limits to be observed in proceedings under KRS 15.520.32 As

noted by defense counsel, Royce was not told at the time of the hearing under consideration that a

trial date had been set in the criminal matter; even if he had been so informed, the scheduled date

was some nine months in the future on the date of the hearing. Wanting to move forward without

delay, when the alternative was a postponement of indefinite duration, was reasonable under the

circumstances.

In declining to grant a continuance, Royce also considered the public interest in prompt

resolution of the matter.33 Additionally, a vital consideration was that Turcotte had already testified

under oath regarding the same allegations that support the criminal charge against him. In Maze,

the Kentucky Supreme Court observed that “Judge Maze’s Fifth-Amendment and overlapping-

evidence arguments” were not compelling considering the “voluntary and arguably incriminating

statements” she had already made.34 In the instant case, Turcotte testified during the IPO hearing

and therefore had previously given sworn testimony of record. At the time of the hearing in this

matter, then, he had already made “voluntary and arguably incriminating statements” under oath

concerning some of the allegations.

Finally, Royce observed that he considered the ultimate outcome of the criminal

proceedings to have “no bearing” on his decision in the disciplinary matter.35 This conclusion was

based in part on the different standards of proof applicable in the proceedings. In addition, he

32
For example, KRS 15.520(7)(h) requires a hearing within seventy-five days of the filing of a charge, and KRS
15.520(7)(h) and (i) provide for back pay and benefits if this is not done.
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33
In his Findings, he cited “the community’s trust” (p. 9) and the “valid public interest in bringing this
administrative matter to a conclusion notwithstanding the pending criminal charges” (p. 3) as considerations.
34
Maze, 575 S.W.3d at 212.
35
Findings, pp. 4-5.

Entered 23-CI-00437 03/14/2024 Krissie Coe Fields, Barren Circuit Clerk

 Entered 23-CI-00437 03/14/2024 Krissie Coe Fields, Barren Circuit Clerk

NOT ORIGINAL
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03/18/2024 12:31:08
PM determined that the testimony at the IPO hearing, the findings from that hearing, and the existence
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of the IPO influenced his decision.36

As previously noted, an agency’s ruling is arbitrary if the agency exceeded the constraints

of its statutory powers; if the party affected by the ruling was not afforded procedural due process;

or if the agency’s action is not supported by substantial evidence.37 Turcotte does not argue that

Royce exceeded his statutory powers or failed to comply with the dictates of KRS 15.520.

Nevertheless, the Court has reviewed the record and finds that Royce did not exceed the statutory

powers of a hearing authority either in conducting the hearing or in the discipline that was imposed,

nor did the proceeding fail to comply with KRS 15.520.

Likewise, Turcotte does not argue that Royce’s decision lacked sufficient factual support

or that the factual findings did not bring his conduct within the policies cited. Out of an abundance

of caution, however, the Court has reviewed the record, including the transcript of the hearing and

the exhibits, to independently assess whether the findings had substantial support. The Court finds

that the Written Findings and Decision of Appointing Authority had substantial evidentiary

support and that Royce’s application of the policies in question was not erroneous or inappropriate.

Turcotte’s argument is that Royce abused his discretion when he declined to hold the

administrative proceeding in abeyance until the criminal case was over. As discussed above, the

Court specifically finds that Royce appropriately applied the Kentucky Supreme Court’s holding

in Maze v. Kentucky Judicial Conduct Commission. The decision to move forward with the hearing

was not arbitrary and did not constitute an abuse of discretion. Therefore, the Court affirms the OPOR : 000009 of 000010

36
Findings, pp. 2-3; 5.
37
Ward, 890 S.W.2d at 642–43.

Entered 23-CI-00437 03/14/2024 Krissie Coe Fields, Barren Circuit Clerk

 Entered 23-CI-00437 03/14/2024 Krissie Coe Fields, Barren Circuit Clerk

NOT ORIGINAL
DOCUMENT
03/18/2024 12:31:08
PM Written Findings and Decision of Appointing Authority dated August 10, 2023. As a result, this
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action is dismissed with prejudice.

IT IS SO ORDERED this March 14, 2024. This is a final and appealable order and there is

no just cause for delay in its entry.

_______________________________________
HON. JOHN T. ALEXANDER
JUDGE, BARREN CIRCUIT COURT

Distribution:
Matthew Baker, counsel for Plaintiff
Ian Loos, counsel for Defendants
Rich Alexander, Glasgow City Attorney

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Entered 23-CI-00437 03/14/2024 Krissie Coe Fields, Barren Circuit Clerk