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Sometimes keeping your job means having to say you're sorry


Far too often, employers determine the level of discipline they will impose and ask questions later. A full investigation and analysis, including confronting the employee accused of wrongdoing, can sometimes yield deception or misconduct that can beuseful in determining the outcome. For example, an employee who refuses to acknowledge or apologize for clear wrongdoing compounds the initial offense. On the other hand, a contrite employee is probably more apt to refrain from further wrongdoing. Quite literally, sometimes keeping your job means having to say you're sorry, as illustrated by a recent Kentucky Court of Appeals case.


The city of Florence's police department issued laptop computers to its officers for use in their cruisers. The laptops included a mobile data terminal system (MDT) ― a text messaging system for intradepartmental communication. Following the system's implementation, the department undertook a random screening of MDT messages to ensure that officers had been using the system properly. 

As a result of the review, the department identified David Cole and four other officers as having used the system to send inappropriate communications. To begin disciplinary action against the officers, the department initiated its internal "charge" process. Cole was charged with sending "embarrassing, indecent, profane and obscene" messages. The texts of the messages revealed clearly inappropriate behavior. 

In response to the messages, the department took preliminary steps to see if terminations could be avoided. First, police chief Tom Kathman asked all five officers to write a letter explaining their behavior. All the officers except for Cole expressed contrition in their letters and acknowledged their wrongdoing. Cole defiantly defended his messages as within the scope of legitimate police business. 

Kathman decided to reprimand the four contrite officers. In the absence of contrition, he initially offered Cole an opportunity to accept a one-day suspension for the offense. Cole refused and requested an administrative hearing on the charges. The chief apparently grew increasingly frustrated with Cole's combative approach and eventually recommended termination instead of a suspension. At the administrative hearing, the city council reviewed the messages and agreed with the police chief. 

The city terminated Cole. He appealed his dismissal to Boone Circuit Court. The court dismissed the appeal, following well-established law in determining that the city council's ruling was entitled to deference. So long as the city's judgment on whether Cole violated work rules wasn't arbitrary, it had to be upheld. On appeal to the Kentucky Court of Appeals, Cole made several unsuccessful arguments that illustrate helpful principles for employers. 


Cole argued that the council acted arbitrarily because it treated him differently than the other four officers who sent inappropriate messages. The court of appeals said that the city didn't act arbitrarily because the other officers "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." By contrast, Cole came before the council and refused to recognize his misconduct. Therefore, it was appropriate to treat him differently than the other officers. 

Cole also argued that he should prevail because the Kentucky Unemployment Insurance Commission ruled in his favor and determined that he hadn't engaged in misconduct. The court of appeals said that the unemployment procedures don't grant either party a true opportunity to litigate issues, nor do the stakes at issue in unemployment hearings encourage meaningful participation. It would be "wholly inappropriate" to use an "unemployment compensation decision to bind the parties." 

Finally, Cole argued that the council and Kathman punished him for requesting a hearing instead of accepting the previously offered one-day suspension. The court held that the council and chief merely wanted to punish Cole for his misconduct, not because he requested a hearing. When he requested a hearing in lieu of essentially accepting a suspension, he opened the door for a potential termination and put the fate of his employment in the council's hands. He gambled with his employment and lost. Cole v. City Council of the City of Florence, 2007 WL 2744428 (Ky. App., 2007). 

Bottom line 

It seems clear that Cole could have saved his job had he acknowledged wrongdoing, accepted minor punishment, and pledged to change. In the final analysis, it was fair for the city of Florence to take into account that he refused to do so. A more common scenario occurs when an employee defiantly refuses to sign a simple acknowledgment for receipt of discipline. It may be useful for you to rethink how you'll respond the next time a similar situation occurs and whether such insubordination should be taken into account when determining discipline.

If you have any questions or need help, please contact any member of the Greenebaum Doll & McDonald Labor and Employment Department. 

Copyright 2007 M. Lee Smith Publishers LLC 
KENTUCKY EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kentucky employment law.  Questions about individual problems should be addressed to the employment law attorney of your choice.

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