RENDERED: SEPTEMBER 18, 2026; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2024-CA-1174-MR
ERIC S. CULVER; BRENT
ROUTZAHN; JASON POSTON;
LARRY DALE MASSEY, JR.; SCOTT
GREGORY WALKER; AND
WILLIAM D. PEARSON, III APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MELISSA L. BELLOWS, JUDGE
ACTION NO. 16-CI-001500
LOUISVILLE/JEFFERSON COUNTY
METRO GOVERNMENT; AARON
BROWNING; ALLAN
MANGANELLO; BRAD HARRIS;
BRANDON HOGAN; CHARLES
NEWMAN; CHRISTOPHER BAKER;
CHRISTOPHER KITCHEN;
CHRISTOPHER PRIEL;
CHRISTOPHER WELLS; DANIEL
WEEDMAN; DANIEL ZUMMACH;
DARRIN BALTHROP; DAVID
HAIGHT; DAVID LEDBETTER;
GARY JAGGERS; JAMES
KAUFLING; JASON LAINHART;
JASON MOSELEY; JEFFREY
LAUDER; JEREMY BOEHNLEIN;
JEREMY RUOFF; JOE HEITZMAN;
JOEL CASSE; JOHN KOOFER; JOHN
SEYMOUR; JOSEPH HOWELL;
KEVIN CASPER; LAQUAN WATERS;
LISA DOYLE; LUKE PHAN; LYTLE
ATHERTON; MARC CRAWFORD;
MARK BRADEN, II; MARK
GRANHOLM; MATTHEW ERNST;
MATTHEW SANDERS; MICHAEL
BURNS; MICHAEL CHEESEMAN;
MICHAEL KING; MICKEY KING;
NATHAN RAUSCH; PAUL COBB;
RAYMOND PAGE; RHONAL
HEADY; RICHARD BARRON;
RICHARD MCELROY; ROBERT
KRUGLER; SEAN HAYES;
SHANNON PARKS; STEVEN
MANTLE; THOMAS HODGKINS;
TONY SACRA; AND WESLEY
CLAXON APPELLEES
AND
NO. 2024-CA-1208-MR
LOUISVILLE/JEFFERSON COUNTY
METRO GOVERNMENT CROSS-APPELLANT
CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MELISSA L. BELLOWS, JUDGE
ACTION NO. 16-CI-001500
ERIC S. CULVER; AARON
BROWNING; ALLAN
MANGANELLO; BRAD HARRIS;
BRANDON HOGAN; BRENT
ROUTZAHN; CHARLES NEWMAN;
-2-CHRISTOPHER BAKER;
CHRISTOPHER KITCHEN;
CHRISTOPHER PRIEL;
CHRISTOPHER WELLS; DANIEL
WEEDMAN; DANIEL ZUMMACH;
DARRIN BALTHROP; DAVID
HAIGHT; DAVID LEDBETTER;
GARY JAGGERS; JAMES
KAUFLING; JASON LAINHART;
JASON MOSELEY; JASON POSTON;
JEFFREY LAUDER; JEREMY
BOEHNLEIN; JEREMY RUOFF; JOE
HEITZMAN; JOEL CASSE; JOHN
KOOFER; JOHN SEYMOUR; JOSEPH
HOWELL; KEVIN CASPER;
LAQUAN WATERS; LARRY DALE
MASSEY, JR.; LISA DOYLE; LUKE
PHAN; LYTLE ATHERTON; MARC
CRAWFORD; MARK BRADEN, II;
MARK GRANHOLM; MATTHEW
ERNST; MATTHEW SANDERS;
MICHAEL BURNS; MICHAEL
CHEESEMAN; MICHAEL KING;
MICKEY KING; NATHAN RAUSCH;
PAUL COBB; RAYMOND PAGE;
RHONAL HEADY; RICHARD
BARRON; RICHARD MCELROY;
ROBERT KRUGLER; SCOTT
GREGORY WALKER; SEAN HAYES;
SHANNON PARKS; STEVEN
MANTLE; THOMAS HODGKINS;
TONY SACRA; WESLEY CLAXON;
AND WILLIAM D. PEARSON, III CROSS-APPELLEES
AND
-3-NO. 2024-CA-1179-MR
JASON LAINHART; AARON
BROWNING; ALLAN
MANGANELLO; BRAD HARRIS;
BRANDON HOGAN; CHARLES
NEWMAN; CHRISTOPHER BAKER;
CHRISTOPHER KITCHEN;
CHRISTOPHER PRIEL;
CHRISTOPHER WELLS; DANIEL
WEEDMAN; DANIEL ZUMMACH;
DARRIN BALTHROP; DAVID
HAIGHT; DAVID LEDBETTER;
GARY JAGGERS; JAMES
KAUFLING; JASON MOSELEY;
JEFFREY LAUDER; JEREMY
BOEHNLEIN; JEREMY RUOFF; JOE
HEITZMAN; JOEL CASSE; JOHN
KOOFER; JOHN SEYMOUR; JOSEPH
HOWELL; KEVIN CASPER;
LAQUAN WATERS; LISA DOYLE;
LUKE PHAN; LYTLE ATHERTON;
MARC CRAWFORD; MARK
BRADEN, II; MARK GRANHOLM;
MATTHEW ERNST; MATTHEW
SANDERS; MICHAEL BURNS;
MICHAEL CHEESEMAN; MICHAEL
KING; MICKEY KING; NATHAN
RAUSCH; PAUL COBB; RAYMOND
PAGE; RHONAL HEADY; RICHARD
BARRON; RICHARD MCELROY;
ROBERT KRUGLER; SEAN HAYES;
SHANNON PARKS; STEVEN
MANTLE; THOMAS HODGKINS;
TONY SACRA; AND WESLEY
CLAXON CROSS-APPELLANTS
-4-APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MELISSA L. BELLOWS, JUDGE
ACTION NO. 16-CI-001500
LOUISVILLE/JEFFERSON COUNTY
METRO GOVERNMENT; BRENT
ROUTZAHN; ERIC S. CULVER;
JASON POSTON; LARRY DALE
MASSEY, JR.; SCOTT GREGORY
WALKER; AND WILLIAM D.
PEARSON, III CROSS-APPELLEES
AND
NO. 2024-CA-1210-MR
LOUISVILLE/JEFFERSON COUNTY
METRO GOVERNMENT CROSS-APPELLANT
CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MELISSA L. BELLOWS, JUDGE
ACTION NO. 16-CI-001500
JASON LAINHART; AARON
BROWNING; ALLAN
MANGANELLO; BRAD HARRIS;
BRANDON HOGAN; BRENT
ROUTZAHN; CHARLES NEWMAN;
CHRISTOPHER BAKER;
CHRISTOPHER KITCHEN;
CHRISTOPHER PRIEL;
CHRISTOPHER WELLS; DANIEL
WEEDMAN; DANIEL ZUMMACH;
DARRIN BALTHROP; DAVID
-5-HAIGHT; DAVID LEDBETTER; ERIC
S. CULVER; GARY JAGGERS;
JAMES KAUFLING; JASON
MOSELEY; JASON POSTON;
JEFFREY LAUDER; JEREMY
BOEHNLEIN; JEREMY RUOFF; JOE
HEITZMAN; JOEL CASSE; JOHN
KOOFER; JOHN SEYMOUR; JOSEPH
HOWELL; KEVIN CASPER;
LAQUAN WATERS; LARRY DALE
MASSEY, JR.; LISA DOYLE; LUKE
PHAN; LYTLE ATHERTON; MARC
CRAWFORD; MARK BRADEN, II;
MARK GRANHOLM; MATTHEW
ERNST; MATTHEW SANDERS;
MICHAEL BURNS; MICHAEL
CHEESEMAN; MICHAEL KING;
MICKEY KING; NATHAN RAUSCH;
PAUL COBB; RAYMOND PAGE;
RHONAL HEADY; RICHARD
BARRON; RICHARD MCELROY;
ROBERT KRUGLER; SCOTT
GREGORY WALKER; SEAN HAYES;
SHANNON PARKS; STEVEN
MANTLE; THOMAS HODGKINS;
TONY SACRA; WESLEY CLAXON;
AND WILLIAM D. PEARSON, III CROSS-APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, L. JONES, AND MCNEILL, JUDGES.
JONES, L., JUDGE: These appeals concern claims for compensation for time
spent on-call during employment. The appellants in Appeal No. 2024-CA-1174--6-MR are six current and former members of the Louisville Metro Police
Department’s Special Weapons and Tactical (SWAT) Team (collectively SWAT1)
who claim they are entitled to compensation for each hour spent on-call as a
SWAT Team member pursuant to both Kentucky’s wage and hour laws and the
collective bargaining agreement (CBA) entered into with Louisville/Metro County
Government (Metro) by their union, River City Fraternal Order of Police Lodge
#614 (FOP). The claims of SWAT1 were tried before a jury which found in favor
of Metro. SWAT1 appeals orders of the Jefferson Circuit Court that (1) denied
their motions for partial summary judgment both prior to and after trial; and (2)
denied their motion for a new trial. In the Cross-Appeal No. 2024-CA-1208-MR
Metro claims it was entitled to a directed verdict following the close of proof at
trial. Metro also requests this Court address whether KRS1 67C.400 et seq.
prohibits a private right of action to enforce a CBA.
The appellants in Appeal No. 2024-CA-1179-MR are 53 other current
and former members of Metro’s SWAT Team (collectively SWAT2) who filed suit
at the same time as SWAT1, but whose claims were not tried. They contend they
were also entitled to summary judgment prior to and after trial along with SWAT1
(when referring to SWAT1 and SWAT2 collectively herein, we refer to them
simply as Appellants or SWAT Team members). Alternatively, they seek
1
Kentucky Revised Statutes.
-7-correction of what they claim are the trial court’s errors during SWAT1’s trial so
they are not repeated in future trials wherein SWAT2 will also seek on-call
compensation. SWAT2 denotes their action before this Court as a “protective
appeal.” In Cross-Appeal No. 2024-CA-1210-MR, Metro also claims it was
entitled to summary judgment prior to trial.
After careful review of the record and having held oral arguments on
August 13, 2026, we affirm the trial court with regard to all appeals and crossappeals. None of the parties were entitled to summary judgment. Further, the trial
court did not commit error with regard to the jury instructions, nor did it abuse its
discretion regarding admission of evidence described in greater detail herein.
Finally, because we are affirming the jury verdict in favor of Metro, the question of
whether Metro was entitled to a directed verdict is moot. However, we briefly
address the issue herein because it is germane to potential trials involving SWAT2.
I. Factual and Procedural Background
From 2001 to 2016, Metro employed a part-time SWAT Team. In
2016, Metro made the decision to employ 20 full-time SWAT Team members to
work first shift (9:00 a.m.–5:00 p.m.).2 However, due to the unpredictable nature
and timing of criminal activity and the service of high-risk warrants requiring
2
Testimony at trial revealed SWAT Team members specifically requested the shift be from 9:00 a.m.–5:00 p.m.
-8-SWAT intervention, each SWAT Team member is required to be on-call two
weeks out of each month. When a SWAT officer is on-call, they are given a
vehicle to keep their tactical gear ready for use should they be called out. They are
also permitted to pursue secondary employment as long as it does not interfere
with their ability to respond to call outs. According to Metro’s Standard Operating
Procedures (SOP), it is preferred that SWAT Team members answer a call within
five minutes and, if called out, it is preferred they arrive at the location within 45
minutes. They are also prohibited from consuming alcohol while on-call. SWAT
Team members are free to swap on-call shifts with each other without prior
administrative approval.
On March 31, 2016, Appellants filed the underlying complaint,
alleging violations of Kentucky’s wage and hour laws (KRS Chapter 337) and
contract law (CBA). Metro filed two motions for summary judgment which were
denied. A trial began in 2021, but a mistrial was declared shortly after. Prior to
commencement of the second trial, all parties filed motions for summary judgment
which were denied. The second trial involving only SWAT1 took place from July
18–29, 2022, and the jury entered verdicts for Metro on all claims. SWAT1
subsequently filed a motion for a new trial. During the pendency of the post-trial
motions, an election took place and a new judge was sworn in. After extensive
briefing and oral arguments, the trial court granted SWAT1’s motion for a new
-9-trial based on what it ruled were “inflammatory evidence and improper jury
instructions.”3 Several months later, Metro filed a motion to reconsider, and
Appellants filed a renewed motion for summary judgment. The trial court granted
the motion for reconsideration, which reinstated the jury verdict, and denied the
motion for summary judgment as moot. The trial court stated it stood by its
reasoning to grant a new trial, but acknowledged it did not give proper deference to
the rulings of the prior judge, who had presided over the case for over six years at
the time of the second trial. The trial court also acknowledged the case would end
up before the Court of Appeals regardless, finding that “[g]ranting a new trial
would be the longest route to get to the same destination.”4 These appeals
followed. Further facts will be developed as necessary.
II. Subject Matter Jurisdiction
At oral arguments, Appellants for the first time raised the issue of
subject matter jurisdiction. Appellants alleged that Metro’s Motion for
Reconsideration, the motion which led to the trial court reinstating the jury verdict
that had previously been vacated when the trial court granted Appellants’ Motion
for a New Trial, was improper and untimely. Appellants argued that Metro was
required to have appealed the order granting Appellants a new trial, and the failure
3
See Order entered November 27, 2023.
4
See Order entered August 30, 2024, at page 2.
-10-of Metro to do so within the appropriate time frame precluded the trial court from
granting Metro’s Motion for Reconsideration.
“An appellate court ‘is without authority to review issues not raised in
or decided by the trial court.’” Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d
705, 734 (Ky. 2009) (quoting Regional Jail Authority v. Tackett, 770 S.W.2d 225,
228 (Ky. 1989)). For this reason, it has long been the policy of Kentucky’s
appellate courts to find that specific errors not raised before the trial court but
brought to light in the final minutes of rebuttal during oral argument will not
support a favorable ruling on appeal. See Commonwealth v. Steadman, 411
S.W.3d 717, 724 (Ky. 2013) (quoting Fischer v. Fischer, 348 S.W.3d 582, 588
(Ky. 2011)). Nevertheless, questions of subject matter jurisdiction are the “lone
exception” to this rule. Id.
In support of their argument, Appellants presented this Court with the
case of Crowe v. Crowe, 95 S.W.2d 251 (Ky. 1936). In Crowe, the highest court
of the Commonwealth stated “that in a proceeding under section 518 of the Civil
Code of Practice, an order vacating a judgment and granting a new trial is a final
order from which an appeal will lie.” Id. at 252. We first note that Kentucky
courts have not been governed by the Civil Code of Practice since July 1, 1953.
See Howard v. Miller, 685 S.W.2d 548 (Ky. 1985). Since the implementation of
Kentucky’s Uniform Rules of Civil Procedure (CR), “[t]he rule is that an order
-11-either sustaining or denying a motion for a new trial authorized by CR 59.01 is not
a final order and is not appealable as such[.]” Hardin v. Waddell, 316 S.W.2d 367,
368 (Ky. 1958).
Furthermore, “[w]hether a court has [subject matter] jurisdiction is
determined at the beginning of a case, based on the type of case presented. . . .
Thus, a court ‘will retain jurisdiction over such a case so long as jurisdiction was
proper in the first place.’” Steadman, 411 S.W.3d at 722 (quoting Leonard v.
Commonwealth, 279 S.W.3d 151, 156 (Ky. 2009)). “Indeed, once a court has
acquired jurisdiction, no subsequent error or irregularity will remove that
jurisdiction[.]” Id. (quoting Commonwealth v. Adkins, 29 S.W.3d 793, 795 (Ky.
2000)). Therefore, Appellants have raised a question over the trial court’s exercise
of jurisdiction in this particular case which does not invoke subject matter
jurisdiction, “[a]nd [particular case] jurisdiction is subject to waiver.” Id. at 724.
Though we find no error based on Appellants’ misstatement of the law, we also
find any alleged irregularity has been waived by Appellants’ failure to raise the
issue before the trial court.
III. Standard of Review
These appeals contain numerous arguments subject to varying
standards of review. SWAT1 claims it is entitled to a new trial. Generally, a trial
court’s denial of a motion for a new trial is reviewed under an abuse of discretion
-12-standard. Brown v. Commonwealth, 174 S.W.3d 421, 428 (Ky. 2005). SWAT1
insists a new trial is appropriate based on what it alleges were erroneous jury
instructions. This argument is reiterated by SWAT2 as applicable to future
litigation. “Alleged errors regarding jury instructions are considered questions of
law that [appellate courts] examine under a de novo standard of review.” Hamilton
v. CSX Transp., Inc., 208 S.W.3d 272, 275 (Ky. App. 2006) (citations omitted).
When examining jury instructions for error, the instructions must be read as a
whole. Bills v. Commonwealth, 851 S.W.2d 466, 471 (Ky. 1993).
Appellants also allege numerous evidentiary errors. “The standard of
review on evidentiary issues is abuse of discretion.” Leach v. Commonwealth, 571
S.W.3d 550, 553 (Ky. 2019) (citations omitted). Additionally, Appellants claim
the trial court erred in denying their motions for summary judgment. The
particular standard for appellate review of denial of a motion for summary
judgment is discussed in greater detail infra. Metro essentially makes the same
argument as Appellants in that its motions for summary judgment should have
been granted, particularly as related to the breach of contract claims.
IV. Analysis
Central to Appellants’ arguments is an administrative regulation that
expired in 2020: 803 KAR5 1:065. The current applicable regulation, 803 KAR
5
Kentucky Administrative Regulations.
-13-1:067, specifically substitutes the previous regulation’s text with language used by
the United States Department of Labor in 29 C.F.R.6 §§ 785.14 through 785.17.
However, the relevant language is identical between the expired regulation and the
federal counterparts incorporated by reference in the current regulation. We refer
to the prior regulation, though expired, for consistency with the trial court’s rulings
and the arguments presented to both the trial court and this Court. To be clear, the
parties have not disputed the applicability of the regulation which states, in
relevant part, as follows:
Section 3. Waiting Time.
(1) General. Whether waiting time is worked under the
act depends upon particular circumstances. The
determination involves scrutiny and construction of the
agreements between particular parties, appraisal of their
practical construction of the working agreement by
conduct, consideration of the nature of the service, and its
relation to the waiting time, and all of the circumstances.
Facts may show that the employee was engaged to wait,
or they show that he waited to be engaged. Such
questions must be determined in accordance with
common sense and the general concept of work or
employment.
(2) On duty. A stenographer who reads a book while
waiting for dictation, a messenger who works a
crossword puzzle while awaiting assignments, fireman
who plays checkers while waiting for alarms and a
factory worker who talks to his fellow employees while
waiting for machinery to be repaired are all working
during their period of inactivity. The rule also applies to
6
Code of Federal Regulations.
-14-employees who work away from the plan. For example,
a repair man is working while he waits for his employer’s
customer to get the premises in readiness. The time is
worktime even though the employee is allowed to leave
the premises or the job site during such periods of
inactivity. The periods during which these occur are
unpredictable. They are usually of short duration. In
either event the employee is unable to use the time
effectively for his own purpose. It belongs to and is
controlled by the employer. In all of these cases waiting
is an integral part of the job. The employee is engaged to
wait.
(3) Off duty.
(a) Period during which an employee is
completely relieved from duty and which are
long enough to enable him to use the time
effectively for his own purposes are not
hours worked. He is not completely
relieved from duty and cannot use the
time effectively for his own purposes
unless he is definitely told in advance that
he may leave the job and that he will not
have to commence work until a definitely
specified hour has arrived. Whether the
time is long enough to enable him to use the
time effectively for his own purposes
depends upon all of the facts and
circumstances of the case.
(b) A truck driver who has to wait at or near
the job site for goods to be loaded is
working during the loading period. If the
driver reaches his destination and while
awaiting the return trip is required to take
care of his employer’s property, he is also
working while waiting. In both cases the
employee is engaged to wait. Waiting is an
integral part of the job. On the other hand,
-15-for example, if the truck driver is sent from
Louisville to Paducah, leaving at 9 a.m. and
arriving at 2 p.m., and is completely and
specifically relieved from all duty until 8
p.m. when he again goes on duty for the
return trip, the idle time is not working
time.[7] He is waiting to be engaged.
(4) On-call time. An employee who is required to remain
on call on the employer’s premises or so close thereto
that he cannot use the time effectively for his own
purposes is working while on call. An employee who
is not required to remain on the employer’s premises
but is merely required to leave word at his home or
with company officials where he may be reached is
not working while on call.
(Emphasis added.)
With the regulation in mind, we turn to Appellants’ arguments.
A. Jury Instructions
SWAT1 argues the jury instructions pertaining to their wage and hour
claim at trial were erroneous because the trial court failed to instruct the jury on the
requirements for an employee to be off duty. SWAT2 also argues the jury
instructions were erroneous and need to be corrected for future trials. As a general
matter, we note Appellants’ arguments ignore § 3(4) of the regulation pertaining to
on-call time as a distinct category of waiting time in the regulation. Rather, they
present a novel, albeit muddled, interpretation by focusing on whether SWAT
7
29 C.F.R. § 785.16(b) uses a different example of destination cities and times; however, such difference is immaterial to the thrust of the example.
-16-Team Members were off duty while being on-call. We disagree with Appellants’
interpretation of the regulation, including how it should have been presented to the
jury in the form of instructions.
We recognize that “[u]nder Kentucky law, administrative regulations
have the full force and effect of law when duly enacted and consistent with
enabling legislation.” Hughes v. UPS Supply Chain Sols., Inc., 677 S.W.3d 273,
280 (Ky. 2023) (citation omitted). Further,
the purpose of jury instructions is to give direction to the
jury in their deliberations so that the members are able to
arrive at a correct verdict. Thus, “[i]f the statements of
law contained in the instructions are substantially correct,
they will not be condemned as prejudicial unless they are
calculated to mislead the jury.” Ballback’s Adm’r v.
Boland–Maloney Lumber Co., 306 Ky. 647, 652–53, 208
S.W.2d 940, 943 (Ky. 1948).
Mendez v. University of Kentucky Bd. of Trs., 357 S.W.3d 534, 539 (Ky. App.
2011).
We agree with Metro that it is appropriate to look to federal law for
guidance, particularly because the current Kentucky regulation (803 KAR 1:067)
refers directly to the federal counterparts, which include citations to federal
caselaw within the regulations. See also Hughes, 677 S.W.3d at 280
(acknowledging “[t]he longstanding similarities between KRS Chapter 337’s
administrative regulations and their federal counterparts”). Further, SWAT1’s
proposed jury instructions filed with the trial court cite to both the regulation at
-17-issue and to opinions of the United States Supreme Court. While published
Kentucky caselaw is scant, this Court has recognized, in order to determine if an
employee’s on-call time is compensable,
[t]he pertinent sections of 803 KAR 1:065 provide that
employees shall be compensated while “on-call”, if they
are so restricted as not to be able to use their time
effectively for their own purposes. The regulation also
provides that “an employee who is not required to remain
on the employer’s premises, but is merely required to
leave word at his home or with company officials where
he may be reached is not working while ‘on-call.’”
Spellman v. Fiscal Ct. of Jefferson Cnty., 574 S.W.2d 342, 343 (Ky. App. 1978).
Similarly, federal caselaw instructs that
[a]n employee must be compensated for on call time
spent “predominantly for the employer’s benefit.” [Aiken
v. City of Memphis, Tennessee, 190 F.3d 753, 760 (6th
Cir. 1999)]. “[T]he question in on-call cases is whether
the employer’s restrictions on [its employees’] time
prevent the employees from effectively using the time for
personal pursuits.” Id. To be considered work time, an
employee’s on-call time must be “severely restricted.”
Id. This determination is fact-specific, and the
circumstances of each case must be considered. Id. “The
fact that some of the plaintiffs’ activities have been
affected by the policy is not sufficient to make the on-call
time compensable. The plaintiffs must show that the
policy is so onerous as to prevent them from effectively
using their free time for personal pursuits.” Martin v.
Ohio Turnpike Comm’n, 968 F.2d 606, 611 (6th Cir.
1992).
Rutlin v. Prime Succession, Inc., 220 F.3d 737, 743–44 (6th Cir. 2000) (footnote
omitted).
-18-The relevant instructions provided to the jury by the trial court are as
follows:
INSTRUCTION NUMBER 2
The purpose of this trial, and your duty as jurors, is
to determine whether the six Plaintiffs, Eric S. Culver,
Larry Dale Massey, Jr., William D. Pearson, III, Jason
Poston, Brent Routzahn, and Scott Gregory Walker
(hereinafter collectively, “Plaintiffs”), were working
when on-call for the Louisville Metro Police Department
as members of the [SWAT] Team, by Defendant,
[Metro]. If you determine that Plaintiffs were working
while on-call with the SWAT Team, then they are
required to be compensated for such time. An employer
cannot accept the benefits of an employee’s work without
compensation.
INSTRUCTION NUMBER 4
WAGE AND HOUR CLAIM
You will find for Plaintiffs under this Instruction
if, and only if, you are satisfied from the evidence that:
A. The on-call assignment on the SWAT Team
was predominantly for [Metro’s], and not
Plaintiffs’, benefit;
AND
B. The on-call assignments for each Plaintiff were
so restrictive that he could not use his time
effectively for his own purposes.
These questions must be answered for each Plaintiff.
-19-For purposes of determining whether a Plaintiff’s
free time is “severely restricted,” you may consider the
following factors: (1) the frequency of calls to the oncall Plaintiff; (2) geographical restrictions on each
Plaintiff’s movements; (3) the restrictiveness of fixed
time limits for response; (4) the subjection to discipline
in the event of a late or no response from the on-call
Plaintiff; (5) the on-call Plaintiff’s ability to trade his
responsibilities with another co-worker; (6) the on-call
Plaintiff’s actual pursuit of, or engagement in, personal
activities, including secondary employment; and (7) the
on-call assignments did not provide a definitive time in
advance that Plaintiffs may leave the job and did not tell
Plaintiffs that they would not have to report to work until
a definite time.
Appellants argue that Instruction 4(B)(7) should have been front and
center in the jury instructions, not just listed as a factor that jurors may consider.
Notably, in closing arguments, counsel for SWAT1 had an opportunity to and did
emphasize Instruction 4(B)(7) and told the jury that it alone was determinative of
the entire case. However, Appellants have not cited a single case, either in
Kentucky or from the federal courts, that requires an employer must “provide a
definitive time in advance that an employee may leave the job and tell the
employee they would not have to report to work until a definite time” for
employees who are on-call. 803 KAR 1:065 § 3(3)(a) contains this language for
determination of whether an employee is off duty, but the question presented is not
whether SWAT1 was off duty, but rather if they were working while on-call. The
regulation provides distinct and clear categories for on duty, off duty, and on-call.
-20-Providing a definitive time in advance that an employee may leave the job and
telling the employee they would not have to report to work until a definite time is
criteria for being off duty, not on-call. The nature of being on-call, particularly for
those in law enforcement, is that one is available to respond to unforeseen and
unpredictable situations. Aside from the service of warrants that may be
coordinated with other departments to occur at a certain time, there is simply no
way of knowing at what point or where SWAT Team members will be needed in
the Louisville Metro area. By Appellants’ reasoning, SWAT Team members
would be on duty around the clock for one-half of the year because there is no way
to assure them that they will need to report to work at a definitive time while oncall. This uncertainty is simply the reality of being on-call.
Appellants also argue the trial court erred because it did not instruct
the jury to find for SWAT1 if it determined that on-call status is predominately for
the benefit of Metro. This argument is refuted simply by looking at the face of
Instruction 4(A), supra. However, Appellants argue the error lies in the fact that
the trial court included the additional requirement that “[t]he on-call assignments
for each Plaintiff were so restrictive that he could not use his free time effectively
for his own purposes.” See Jury Instruction 4(B). The instruction properly
reflected 803 KAR 1:065 § 3(4) and relevant law. Moreover, SWAT1’s
-21-Instruction No. 1, filed in the trial court by SWAT1 on May 31, 2022, provides, in
relevant part only
(A) [Metro] did not tell them in advance that they were
off the job and would not have to commence work again
until a definitely specified time . . . . If you so determine,
each Plaintiff will have remained “on duty” while
assigned to being on-call . . . and was working for
[Metro].
(B) Whether their on-call assignment as a SWAT Team
member is predominately for the benefit of [Metro] by
engaging each Plaintiff to wait and prepare to serve . . . .
If you so determine, each Plaintiff while assigned to
being on-call was working for [Metro].
(C) Whether on-call assignments to each Plaintiff are so
restrictive that they cannot use the time effectively for
their own purposes. [803 KAR 1:065 [§] 3(4); see also
Ford Motor Credit Co. v. Milhollin, 444 U.S. 555-56,
100 S. Ct. 790, 792, 63 L. Ed. 2d 22 (1980)]. If you so
determine, each Plaintiff while assigned to being on-call
was working for Metro.
In other words, SWAT1’s proposed jury instructions contain precisely
the language they now say was erroneous. In closing arguments, counsel for
SWAT1 also stated she agreed with Metro that Jury Instruction 4(B) was the “key”
to the entire case. Video Record (VR) 7/29/22 at 10:44:02. Appellants’ argument
is without merit and we discern no error.
Metro has never denied that they did not provide a definitive time in
advance that on-call SWAT Team members could leave the job and not have to
report back to work until a definite time. There was simply no way Metro could
-22-have provided those assurances because the officers were on-call, not off duty.
Moreover, it would have been improper to instruct the jury as to whether SWAT1
was off duty while on-call because on-call and off duty are two separate and
distinct categories (i.e., they can either be off duty or on-call, but not both). The
jury instructions provided by the trial court reflect the regulation and applicable
law to determine whether Appellants were working while on-call. Specifically,
whether the time spent on-call was predominantly for the benefit of Metro (see
Aiken, 190 F.3d at 760; Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S. Ct.
165, 168, 89 L. Ed. 118 (1944)) and whether the on-call assignments were so
restrictive that each member of SWAT1 could not use his time effectively for his
own purpose. See 803 KAR 1:065 § 3(4); Spellman, 574 S.W.2d at 343; Rutlin,
220 F.3d at 743–44. The factors listed by the trial court, with the exception of
4(B)(7), provided optional guidelines, based on the evidence presented and the
applicable law, as to whether the time spent on-call was so severely restricted that
it prevented those on SWAT1 from using the time effectively for their own
purposes. The fact that the trial court included the off-duty language as a factor the
jury may consider was error, but it was harmless and likely worked in favor of
SWAT1, although the ultimate verdict did not.
-23-B. Evidentiary Issues
Appellants allege the trial court erred by allowing entry of an
“overwhelming” amount of irrelevant and prejudicial evidence. We disagree.
1. Evidence and commentary regarding potential financial and tax
consequences of a verdict in favor of SWAT1
Appellants argue it was error for the trial court to allow proof of the
amount of damages sought by all SWAT Team members in the lawsuit
(approximately $150,000,000) instead of only the amounts sought by each
individual officer in SWAT1. Second, Appellants argue the trial court
impermissibly allowed Metro to introduce evidence and commentary during
opening and closing arguments that reinforced the fact the jurors, as taxpayers,
would ultimately be responsible for the financial consequences of any verdict in
favor of SWAT1. Finally, Appellants assert the trial court erred by allowing
evidence regarding the potential financial impact to Metro in the event of a jury
verdict.
We begin by noting that at the post-trial hearing on Metro’s motion to
reconsider the trial court’s order for a new trial, counsel for Metro argued the prior
judge allowed Appellants to choose six SWAT members to be the first to bring
their claims before the jury (i.e., SWAT1) and testify that they would accept 25%
of their individual damages in exchange for allowing Metro to introduce evidence
of the entire amount of damages sought (i.e., excess of $150,000,000). However,
-24-we could find no order in the record to that end, and none has been cited. We
agree the trial court ruled numerous times from the bench that the jury was entitled
to know the full extent of what was at stake in terms of damages, but we find
nothing in the record to support it was “in exchange” for anything else.
During voir dire on July 19, 2022, counsel for SWAT1 gave a
hypothetical situation to potential jurors citing a $500,000 judgment. She then
stated:
What if someone in the jury room says, “Well, the city’s
going to have to pay that judgment.” And someone else
in the jury room says, “Hey wait a minute, I’m a tax
payer of the city of Louisville. I don’t want to give a
judgment that I’m going to have to pay because they’re
going to raise my taxes.” Do you see why I would be
worried about that as the attorney representing the police
officers on the SWAT team? This is a tough question.
Tough. Are you going to write down a lower verdict
because of the concern that your portion of the
percentage of the verdict might come out of your pocket?
It’s okay to say yes. There are a lot of people who say,
“Oh my god, I’m not paying that judgment.” But if
you’re going to say yes, I need to know because you
might not be the right juror for this case. Think about it.
VR 7/19/22 beginning at 1:47:20.
Counsel then singled out a couple of potential jurors, both of whom
said they would do what was right based on the evidence. No one else indicated
they would have a problem paying any potential verdict because it might increase
taxes or affect them as taxpayers. Nevertheless, Appellants now argue the verdict
-25-was rendered based upon the jury’s fear of potential combined verdicts of over
$150,000,000 and what that will do to taxes. Appellants are implicitly asserting
the potential jurors were not honest in their voir dire responses and were swayed
by the potential amount of combined verdicts should the SWAT Team be
successful in their claims. “To obtain a new trial because of juror mendacity, a
party must first demonstrate that a juror failed to answer honestly a material
question on voir dire, and then further show that a correct response would have
provided a valid basis for a challenge for cause.” Adkins v. Commonwealth, 96
S.W.3d 779, 796 (Ky. 2003) (internal quotation marks and citations omitted).
Appellants have provided no evidence whatsoever that jurors, as taxpayers, were
dishonest in their voir dire responses and were swayed by a potentially large
verdict despite answering otherwise.
Further, we cannot say the trial court abused its discretion by letting
the jurors know the full extent of damages sought by all SWAT Team members,
not just the six in front of them. As was pointed out by the trial judge, the case had
been in the local news numerous times and she believed the jury deserved to know
the full picture. However, other SWAT Team members’ names were redacted
from trial exhibits, as well as the individual amounts they were seeking. The
$150,000,000 came from an itemization of damages filed by Appellants in October
2020. It also helped to give context to the jury. On the one hand, SWAT1 argued
-26-extensively that Metro could not accept free labor (included in Jury Instruction No.
2, supra), yet on the other hand, every SWAT1 officer testified they would accept
just 25% of what they claimed they are owed by Metro, which essentially amounts
to Metro receiving free labor. Common sense would allow the jury to deduce that
there were other present and former members of the SWAT Team with similar
claims, not just the six that were before them.8 In closing arguments, SWAT1’s
counsel also referred to the large amount of money Metro owes to all SWAT Team
members for time spent on-call. Specifically, she spoke in terms of the entire
SWAT Team when she said they went to the Chief of Police and the union with a
list of demands including more resources and officers before filing the lawsuit.9
Counsel also argued to the jury that Metro was able to balance its budget on the
backs of the SWAT Team which, of course, indicates the SWAT Team believes
they are owed extremely large sums of money for time spent on-call since the
formation of the SWAT Team in 2001.10 Assuming Appellants stand by their
claims and the amount they say they are owed, it is paradoxical that they then
assert those claims are prejudicial. We discern no error.
8
Testimony at trial indicated that since its formation in 2016, the full-time SWAT Team has approximately 20 members at any given time.
9
VR 7/29/22 beginning at 10:20:50.
10
VR 7/29/22: beginning at 10:18:15.
-27-Appellants next argue Metro impermissibly offered testimony and
commentary on the financial impact to the city should the jury decide for SWAT1.
Specifically, they point to the testimony of Deputy Mayor Ellen Hesen. However,
Deputy Mayor Hesen was SWAT1’s witness. Immediately upon calling her to the
stand, SWAT1’s counsel began to ask questions about Metro’s budget, revenue,
and overall financial situation. Counsel for SWAT1 was able to point out, through
Deputy Mayor Hesen’s testimony, that Metro received $636,000,000 in federal
funds during the COVID-19 pandemic, and that $53,000,000 remained unallocated
at the time of trial. Deputy Mayor Hesen did explain that the federal funds were
for non-recurring costs and that employee compensation is a recurring cost and
therefore ineligible for the federal funds. She also testified Metro had a budget
surplus of approximately $25,000,000 from the prior year that carried over, and the
Louisville Metro Police Department specifically received a $10,000,000 budget
increase for the current fiscal year at the time of trial.
The implication of Deputy Mayor Hesen’s testimony on direct
examination was clear: Metro has millions of dollars in funds to pay any potential
verdict in favor of SWAT1. It was therefore permissible for Metro to seek
testimony from Deputy Mayor Hesen on cross-examination to allow her to explain
in greater detail how funds are allocated and the potential result of paying
-28-$150,000,000 in damages to the SWAT Team members (i.e., raising taxes and
cutting services).
SWAT1 also called Police Chief Erika Shields to testify regarding
personnel policies for SWAT Team members and police department budget issues,
including salaries. On cross-examination, Chief Shields commented to the jury
that Metro was “spending your money.” SWAT1 objected to the comment and the
trial court admonished the jury that they were to remember their oath to render a
verdict based on the evidence and law and not how it would impact them. “[A]n
admonition is usually sufficient to cure an erroneous admission of evidence, and
there is a presumption that the jury will heed such an admonition.” Matthews v.
Commonwealth, 163 S.W.3d 11, 17 (Ky. 2005) (footnotes omitted). An
admonition is insufficient only if it “appears the argument was so prejudicial,
under the circumstances of the case, that an admonition could not cure it.” Price v.
Commonwealth, 59 S.W.3d 878, 881 (Ky. 2001) (citation omitted). The trial
court’s admonition in this instance was sufficient, particularly because it had been
pointed out to the jurors multiple times that Metro was funded by tax dollars,
including by SWAT1 during voir dire.
2. Evidence regarding pensions and salaries of SWAT Team Members
Appellants argue Metro again played to the passions of the jury by
pointing out the “high” salaries and pension plans of SWAT Team members. A
-29-review of the entire trial shows mentions of salaries and pensions were meant to
demonstrate SWAT Team members were already sufficiently compensated for any
time spent on-call without a call out. See, e.g., testimony of Chief Shields VR
7/25/22 at 2:00:12. In other words, that their salaries and benefits were inclusive
of all duties and that SWAT Team members were therefore not entitled to any
additional compensation for time spent on-call. We again discern no abuse of
discretion.
3. References to the pay practices of SWAT Teams in other states
Testimony at trial from former Chief of Police Steve Conrad revealed
that after SWAT Team members made their unsuccessful demand for on-call pay
and after filing the underlying lawsuit, he wanted to know if Metro was somehow
different or lagging behind because it did not compensate its SWAT Team
members for hours spent on-call when they were not actually called out. To that
end, he instructed several officers to gather information about pay practices from
SWAT Teams in other cities around the country. Officers spoke directly to twelve
other departments on the telephone and gathered information from two other
departments from the internet. The officers produced a report that indicated no
other department they looked into paid their SWAT Team for simply being on-call
without being called out. Further, former Chief Conrad and Chief Shields both
testified that it was not the practice in the cities where they had previously been
-30-employed (former Chief Conrad in Glendale, Arizona, and Chief Shields in
Atlanta, Georgia).
Chief Shields testified that, in her experience, which includes
attending various events with police chiefs from all over the country, she never
came across a police department that compensated SWAT Team members who
were on-call and not called out. Appellants now argue introduction of the study
was erroneous because it was irrelevant and hearsay. With regard to relevance,
Appellants ignore the fact that they first introduced evidence regarding practices of
other police departments for which SWAT1 members either had been or are
currently employed (e.g., Officer Brent Routzahn testified regarding his current
duties as a member of the SWAT Team in the city of St. Matthews, Kentucky in
comparison to his time as a SWAT Team member in Louisville). We discern no
abuse of discretion regarding relevance because the trial court allowed evidence of
pay practices of other SWAT Teams.
Regarding hearsay, KRE11 803(6) provides an exception for admission
of hearsay evidence that consists of
[r]ecords of regularly conducted activity. A
memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or diagnoses,
made at or near the time by, or from information
transmitted by, a person with knowledge, if kept in the
course of a regularly conducted business activity, and if it
11
Kentucky Rules of Evidence.
-31-was the regular practice of that business activity to make
the memorandum, report, record, or data compilation, all
as shown by the testimony of the custodian or other
qualified witness, unless the source of information or the
method or circumstances of preparation indicate lack of
trustworthiness. The term “business” as used in this
paragraph includes business, institution, association,
profession, occupation, and calling of every kind,
whether or not conducted for profit.
After extensive arguments outside the presence of the jury, the trial
court went over the requirements of the rule with regard to the report and ruled it
did qualify as a business record exception to the hearsay rule. Former Chief
Conrad also testified that he requested the report be made and relied on it for his
assessment of whether on-call pay was appropriate for SWAT Team members.
Counsel for SWAT1 was able to present what they believed were the flaws of the
report through extensive cross-examination of former Chief Conrad regarding the
gathering, analysis, and dissemination of the information obtained from other
police departments. We again discern no abuse of discretion.
4. Evidence regarding the CBA
Appellants argue the trial court erred by allowing the jury to view the
entire CBA between Appellants and Metro, which included the procedure for filing
grievances. They argue the jury should have been allowed to view only the portion
of the CBA that says all officers are required to be paid overtime for all hours
worked in excess of eight hours a day and 40 hours per week. To the extent the
-32-jury was allowed to learn of the grievance procedure through the CBA or
testimony, it did not factor into the jury instructions as something for the jury to
consider. The trial court believed the jury was entitled to see the full CBA, rather
than a single provision cherry-picked by SWAT1. We discern no abuse of
discretion.
5. Evidence that members chose to join the SWAT Team
Prior to trial, the trial court ruled Metro could not refer to SWAT
Team members as “volunteers” due to SWAT1’s argument that this implies they
agreed to work without compensation. During the trial, however, testimony and
argument established SWAT Team members “chose” to join or joined of their
own “volition.” Appellants argue there is no difference and Metro still presented
evidence and arguments that implied SWAT Team members agreed to work for
free. In the context of the entire trial and all of the evidence and argument
presented, Metro clearly was not, at any point, arguing SWAT Team members
agreed to work for free. Rather, when testimony and argument pointed to the fact
that SWAT1 members “chose” to join, it was that they understood the requirement
of being on-call for roughly half of each month and they would get paid overtime
only if they were called out and not for any time spent waiting to be called out. For
Appellants to assert Metro argued to the jury that SWAT1 agreed to work for free
is out of context and simply a bridge too far. There was no error.
-33-C. Motions for Summary Judgment
We agree with the trial court that no party was entitled to summary
judgment prior to the SWAT1 trial. Appellants also filed a renewed motion for
summary judgment after the new judge granted SWAT1’s motion for a new trial,
but prior to entry of the second order which reversed course and denied the motion
for a new trial. Upon denial of a new trial for SWAT1, SWAT2’s motion became
moot. However, they still argue they are entitled to summary judgment.
Generally, a denial of a motion for summary judgment is not
appealable.
“The general rule under CR 56.03 is that a denial of a
motion for summary judgment is, first, not appealable
because of its interlocutory nature and, second, is not
reviewable on appeal from a final judgment where the
question is whether there exists a genuine issue of
material fact.” Transp. Cabinet, Bureau of Highways,
Commonwealth of Ky. v. Leneave, 751 S.W.2d 36, 37
(Ky. App. 1988); see Gumm v. Combs, 302 S.W.2d 616,
616–17 (Ky. 1957) (“An order denying a motion for
summary judgment is not appealable.”). However, under
an exception to this general rule, appellate review is
proper if “(1) the facts are not in dispute, (2) the only
basis of the ruling is a matter of law, (3) there is a denial
of the motion, and (4) there is an entry of a final
judgment with an appeal therefrom. Then, and only then,
is the motion for summary judgment properly reviewable
on appeal.” Leneave, 751 S.W.2d at 37; see also Gumm,
302 S.W.2d at 617.
Abbott v. Chesley, 413 S.W.3d 589, 602 (Ky. 2013).
-34-We first turn to denial of Appellants’ motions for summary judgment.
As explained supra, the issue is not whether Metro definitively told the officers in
advance they may leave the job and will not have to commence work until a
specified hour has arrived, but rather whether they were able to use the time spent
on-call effectively for their own purpose. See 803 KAR 1:065 (now 803 KAR
1:067); Spellman, 574 S.W.2d at 343. Appellants continue to argue the facts show
they could not use the time on-call effectively for their own purpose (See, e.g.,
Appellants’ Reply/Cross-Appellees’ Response Brief at 2–8 in No. 2024-CA-1174-MR), and Metro, of course, contends the facts show they could. The jury agreed
with Metro. In other words, Appellants do not meet the exception for review of a
denial of summary judgment. See Aiken, 190 F.3d at 760. Appellants also argue
the evidence showed, as a matter of law, that SWAT1 was never “off duty” when
on on-call status. The distinction between “off duty” and “on-call” has been
sufficiently addressed supra, and summary judgment in favor of Appellants would
be inappropriate on that basis. We also agree with the trial court that Appellants’
renewed motion for summary judgment is moot after denial of SWAT1’s motion
for a new trial.
Metro requests this Court address whether KRS 67C.400 et seq.
prohibits a private right of action to enforce the CBA. This was the subject of the
order denying Metro’s motion for summary judgment regarding the contract claim,
-35-so Metro must show the exception applies in order for us to review the issue on
appeal. There are no facts in dispute around the CBA; the only basis of the ruling
is a matter of law; the trial court denied Metro’s motion for summary judgment
regarding the contract claim; and there is an entry of a final judgment with an
appeal therefrom. Accordingly, we will review the denial of Metro’s motion for
summary judgment regarding the contract claim.
Metro claims only the FOP can bring litigation regarding the CBA.
The trial court found Metro
cited no Kentucky law prohibiting [Appellants] from
pursuing their common law breach of contract claims
here. Indeed, the Grievance Procedure outlined in the
parties’ agreement permissively provides that “any
Member may file a grievance and shall be afforded the
full protection of this Agreement . . . .” However, no
provision of that contract makes it the exclusive remedy
or otherwise abrogates the right to a jury trial.
Moreover, [Appellants] would necessarily have
standing to litigate the issues in Court, as they are clearly
third party beneficiaries to the agreement. See, e.g.,
Presnell Const. Managers, Inc. v. EH Const., L.L.C., 134
S.W.3d 575, 579 (Ky. 2004). Further, as a consolidated
local government, and not an urban-county government,
[Metro] cannot restrict individual employees from suing
about alleged contract violations. KRS 67A.6908(3).[12]
12
KRS 67A.6908(3) provides that
[s]uits for violation of agreements between an urban-county
government and a labor organization representing police officers,
firefighter personnel, firefighters, or corrections personnel may be
brought by the parties to the agreement in the Circuit Court of the
urban-county government.
-36-The [FOP] is certainly allowed to litigate pursuant to the
permissive statutory language; and yet, the individual
members also as certainly retain their rights, as no
restrictive language to the contrary exists. Id.
Finally, [Metro has] presented no controlling
authority establishing that [Appellants] must exhaust
administrative remedies prior to filing suit. Even if such
a requirement existed, here, [Appellants] could not
meaningfully avail themselves of an alternate remedy
because it could result in no more than an advisory, nonbinding arbitration.
See Order entered November 4, 2016.
We agree with the trial court’s analysis. While filing a grievance was
certainly an option for Appellants, Metro failed to prove it was the only option
available under the CBA or the applicable statutes. Denial of Metro’s motion for
summary judgment was therefore appropriate.
D. Metro’s Motion for Directed Verdict
On appellate review of denial of a motion for directed verdict, “we
will reverse the trial court’s ruling only if we find that the jury could not have
reasonably reached its verdict on the basis of the evidence before it.” Belt v.
Cincinnati Insurance Company, 664 S.W.3d 524, 530 (Ky. 2022) (internal
quotation marks and footnote omitted). Obviously, this standard is inapplicable to
the SWAT1 trial because the jury reached the same result Metro was seeking
through directed verdict. However, given the ruling of this Court herein, and the
-37-unusual circumstance due to the election of a new judge shortly after the trial, we
feel it is necessary to briefly address the issue.
In Spellman, supra, police officers sued the Jefferson County Fiscal
Court, in part, for wages they say were owed for a period of approximately three
and one-half weeks that they were required to be on-call. 574 S.W.2d at 342–43.
At the time, being on-call meant that “the officers were required to be reachable by
telephone and able to arrive at a police substation within 30 minutes if an
emergency arose.” Id. The officers requested a jury trial, which was denied by the
trial court. Id. On appeal, this Court held the trial court erred in not granting a jury
trial, but that the error was harmless because
[e]ven if we accept appellants’ rendition of the facts most
favorably to their argument, we must conclude that a
directed verdict for the appellee would have been
proper. . . . Appellants allege that there were
discrepancies among individuals as to what limitations
they were under. However, it is clear that the Police
Chief only directed that the men be capable of being
reached by telephone and be able to report to a police
substation within 30 minutes. While these restrictions
placed some limitations on the policemen, it should be
noted that policemen are considered under duty to
respond as policemen 24 hours a day. The position of
police officer must be the individual’s primary
occupation. Even under normal circumstances,
policemen have certain limitations placed upon them.
We recognize that the order prevented some
policemen from leaving the Louisville area on long
breaks for recreational trips or second jobs, but we
must nevertheless conclude that the order was not so
-38-restrictive as to require additional compensation
under the statute or regulation.
Id. (emphasis added).
We recognize Appellants in the instant action have spent a much
greater portion of their careers on-call than the officers in Spellman. However, we
have now clarified that the correct standard is not whether SWAT Team members
were told in advance that they may leave the job and that they would not have to
commence work until a definitely specified hour has arrived, but rather, (1)
whether the on-call assignment primarily benefited Metro; and (2) whether the oncall assignments were so restrictive SWAT Team members could not use their time
effectively for their own purpose. The facts presented at trial simply do not
support Appellants’ claims, and the verdict rendered was not “palpably or
flagrantly against the evidence so as to indicate that it was reached as [the] result of
passion or prejudice.” Lewis v. Bledsoe Surface Min. Co., 798 S.W.2d 459, 461–
62 (Ky. 1990) (internal quotation marks and citation omitted). Had the jury ruled
in favor of SWAT1, our analysis on the issue of a directed verdict would be very
different. All of the SWAT Team members testified to holding secondary jobs that
they worked while on-call for Metro at least some portion of the time. This fact
alone is arguably enough to demonstrate SWAT Team members are able to use
their time on-call effectively for their own purposes. SWAT1 produced no
evidence whatsoever as to the frequency of call outs and no evidence that any
-39-officer was ever disciplined for not answering a call within five minutes or not
arriving to a call out within 45 minutes, or that any officer was unable to meet the
time requirements. SWAT Team members are given a vehicle to use while on-call
that enables them to store their gear in the event of a call out. Officers did testify
they would often drive separately from their families while on-call to be prepared
in the event of a call out. While SWAT1 testified that family events, leisure
activities, and sleep were disrupted by call outs at times, they failed to demonstrate
their time was so restricted as to warrant additional compensation.
We also acknowledge there has been no fact-finding regarding the
specific individuals in SWAT2; however, many of the same facts will apply to
their cases (e.g., response times, secondary employment, etc.). SWAT2 is
certainly not entitled to summary judgment on their claims as stated herein, but the
litigants and trial court must keep in mind this Opinion when deciding how to
proceed with the SWAT2 litigation as we are limited in our ability to rule at this
point.13
13
“Courts are not permitted to render advisory opinions.” Nordike v. Nordike, 231 S.W.3d 733, 739 (Ky. 2007) (citations omitted).
-40-IV. Conclusion
For the reasons stated herein, the Jefferson Circuit Court is affirmed in
each appeal and cross-appeal presented to this Court, including the revised order
denying SWAT1’s motion for a new trial.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENTS BRIEFS AND ORAL ARGUMENTS FOR APPELLANTS/CROSS- FOR APPELLEE/CROSSAPPELLEES: APPELLANT
LOUISVILLE/JEFFERSON
Ann B. Oldfather COUNTY METRO GOVERNMENT:
R. Sean Deskins
Michael R. Hasken Raymond C. Haley, III
Louisville, Kentucky Louisville, Kentucky
Suzanne Michael, pro hac vice
Seattle, Washington
-41-