*1 “in I materials confidential all civil actions.”
believe that this is the intent of the General
Assembly repeatedly it has thwart- Accordingly, respectfully I this Court.
dissent. joins
Special LARRY Justice NOE
dissenting opinion.
Danny WOODWARD, Appellant, Kentucky,
COMMONWEALTH of
Appellee.
No. 97-SC-741-MR.
Supreme Kentucky. Court of
Oct. 1998. by Supreme
Order Published
Court Jan. 1999.
Rehearing Denied Jan. 1999.
County Judge Hopkins County, Executive reprisal against of malfeasance office He five public employee. was sentenced to a fine on hundred dollar each count. questions presented are whether Woodward was denied witnesses; trial whether the court should granted verdict on mal- have a directed charge; in office whether the feasance regarding office proper; whether the trial court should were granted a directed verdict on charge instruction on the of-
and whether public employee fense proper. on property owned the Green Holzhauser County in Hopkins which was evi- River 1,1994. on March denced a deed executed land, Shortly purchasing the Holzhau- after him ser went to asked department upgrade county if road would sought property. a road on his Holzhauser people improve road would ramp boat that was have easier access property. improvements his would on shop he allow to the bait also easier access intended on land. to build his meeting, Following that Woodward direct- de- Champion, road figure out work partment supervisor, to what Champion report- performed. needed the road and the ed back to ramp Despite roads. were investigation and without further information under- that the work be Woodward ordered taken.
Ray, foreman for the assistant road responsible for department, was road depart- maintaining of the road the records being per- that the work ment. He believed KY, Polk, Jr., William F. Henderson improper because formed was appellant. Ray reported his concerns privately owned. attorney to some members General, III, Attorney A.B. Wil- Chandler of the fiscal court. II, Attorney L. Gener- liam Daniel Assistant Division, al, Appellate Frankfort Criminal completed, project After Wood- KY, for appellee. his Champion to meet with ward directed talking stop workers and order them to WINTERSHEIMER, Justice. they be fired. On project would about 5, 1994, Champi- sent judgment September on appeal This is from a based Woodward, Ray directing a letter him to remove verdict which convicted supervisory position, his revoke his use of Commonwealth. Commonwealth Ben ham, bring a road If truck the evi S.W.2d computer Ray keep road used to records to dence is sufficient to induce a reasonable juror beyond office. After his State Police believe reasonable doubt *3 investigation, guilty, a Woodward convicted of that defendant is directed ver Id, Here, given. malfeasance in not office and a dict should there employee. public support He remained in was sufficient has evidence convic pending appeal. tion. argues that the trial Woodward court Commonwealth, Bailey Ky., v. 790 by excluding erred that a evidence conviction (1990), 233 S.W.2d enumerates elements result
would his removal from office. county of the crime of malfeasance of a offi Thus, he maintains that he was denied the person cer. To be of this crime a must by witnesses their (1) (2) officer, county perform a an official testifying against motive for him. We dis- act, unjust wrongful, the act must be or agree. gross negligence. constitute Id. at 235. statutory penalty for each of dispute There is no that Woodward is up Woodward’s convictions a fine of county judge executive and that his order 61.170(1). one thousand dollars. KRS ing the performed work to be was an official possible removal from office if only act. The element at issue was whether convicted was not a for the matter wrongful, unjust, the work ordered was prosecutor, consider. Neither the defense Holzhauser, gross negligence. constituted counsel, nor the court should relate to the property question, owner of the testi jury the consequences particular future of a that property put fied the deed to the anytime during verdict criminal trial. See into his name on March 1994. He also Commonwealth, Payne Ky., 623 S.W.2d acknowledged directly speaking with Wood (1981); 870 See Mitchell v. also Com having improved ward about road be monwealth, (1989); S.W.2d he cause wanted better access to the bait Steiber, Ky., Commonwealth v. 697 S.W.2d shop he intended to build. 135, 136 properly The trial court 178.010(b) consequences provides excluded references KRS manner to future by may in which a jury. county a conviction road become a road. was no evidence that Payne Woodward’s claim supra, that accepted Fiscal Court ever this road Steiber, supra, supra, Mitchell are dis- county system pursuant into the road to this tinguishable because those cases concern Chapter of the statute. Con- insanity DUI convictions and the defense permit not improve stitution does Further, unpersuasive. than other the re- property private of a citizen. In addi- prevented striction which from hear- tion, Hopkins County Administrative ing consequences about the future of the Code, “county Section that 630.5 states road conviction, free Woodward was to demon- equipment may or materials not be used to jury. strate witness bias to the No error private work on with or without roads com- occurred. pensation.” does KRS 178.405 allow for a Woodward asserts that the trial court public private through road to road become by granting not erred him directed verdict public use if that use is continuous for fifteen charge. malfeasance in office He years long property 55% of all as claims that an essential element of malfea- property whose abuts the con- owners road sance, gross negligence either evil intent or public of the sent dedication road to fraud, equivalent to be the was not However, requires use. 178.410 that KRS proven. if the fiscal court determine the conditions of verdict, Further, On a motion a directed KRS 178.405 have fulfilled. been trial court must fair and sections draw all reason 178.425 states that 178.405 to any apply able inferences from the evidence favor of 178.425 do not roads which are plat- crime. the trial passways less than four issued dead-end with charge ted lots. court on the of malfeasance were appropriate. no that There was evidence the road accepted question has ever into the argues the trial Woodward next court system. county road never con- by denying his motion for a erred directed county attorney legality about the sulted charge verdict on the supervisor project even after the of the He that the Com- employee. contends told him any proof to offer monwealth failed he system. part road was report- knew that the demoted clearly presented evidence showed that any anyone. alleged wrongdoing per- which ordered to be work *4 noted, for previously As on a motion a was formed, capacity, in his violated both official verdict, the trial court must draw all directed regulations of the laws of from the fair reasonable inferences evi- County. Hopkins was evi- There sufficient dence in favor of the Commonwealth. Ben- unjust wrongful dence to demonstrate a ham, If the is sufficient supra. evidence to properly intent. The trial court submitted juror beyond to a induce a reasonable believe jury. to the this issue guilty, that defendant is reasonable doubt that the trial court Woodward contends given. be a directed verdict should not Id. jury in its on the erred support to was sufficient evidence Relying in office. offense of malfeasance conviction. Fields, Ky. Holliday v. (1925), that he maintains the defini- S.W. reprisal against The em- crime of require tion of malfeasance would ployee in is codified 61.102. stat- disagree. of evil intent. We provides: ute jury required was to find existence subject reprisal, employer No shall to or find of four elements in order to indirectly use, or threaten directly or First, guilty had to of malfeasance. use, influence, authority any official or giving that ordered the acts find whatsoever, any tends manner which Second, had rise to the indictment. restrain, dissuade, discourage, depress, de- Hopkins to determine that he was the Coun- coerce, ter, with, or prevent, interfere dis- ty Judge the date Executive on the work any employee who in criminate Third, issued. to find order was had discloses, divulges, good reports, or faith willfully, intentionally that Woodward acted brings to the attention otherwise gross negli- in manner constituted or Fourth, jury had to gence. determine any law, suspected an or violation of actual act set in the element forth first statute, order, executive administrative unjust wrongful constituted a or act that any regulation, ... or or information facts power. of an abuse ... suspected actual or abuse of relative to reject contention We authority. requires a definition of malfeasance that the necessarily Four elements must showing of evil The definition of intent. met in for this crime to occurred. order Holliday supra, set re forth First, chapter, the context of this dictionary. The of the lied on a 1925 use employer an of the state or must be officer A accu inappropriate. more word “evil” Second, the political one of its subdivisions. of malfeasance can be found rate definition employee or employee must a state an Unabridged New Dictio Universal Webster’s Third, employee political subdivision. of gives which nary, second edition report faith good must make a “wrong-doing following or miscon definition: state or local affairs; as, suspected violation of duct, especially handling public regulation an statute or administrative graft or vio an official who takes otherwise Fourth, authority. appropriate body or Evil his trust is of malfeasance.” lates punish the shown to act to necessary of the defendant must be is not element intent report employee making finding or to act in indictment the defen- discourage Hopkins County Judge a manner so dant such as to the mak- Execu- tive; ing report. of this Jr., Jimmy Ray, B. good That had in Here, undisputed evidence reported faith facts or information relative county judge
that Woodward was the execu suspected to actual or violations of state Ray county employee. and that tive was a It regulations appro- local law or to an and/or Ray good is also contested that made a authority wit, priate body Hop- report appropriate body. faith to an County Attorney kins members disputed issue was whether Woodward’s Court; Hopkins County Fiscal ordering Ray repri action was a demoted C. That the defendant used his official Ray’s reports. sal for Woodward claims authority Judge Exec- present any the Commonwealth failed Jimmy Ray, utive to demote and transfer Ray proof reported that he knew that Jr.; alleged any wrongdoing anyone. We dis
agree. AND
There was sufficient circumstantial evi- willfully, D. That he acted as defined in support dence the criminal conviction be- Instruction No. aas *5 cause evidence taken as a whole shows Jimmy Ray, reporting Jr. for this informa- it clearly that was not for the unreasonable tion.
jury guilt. to find v. See Bussell Common- person Instruction stated number 3 that a wealth, Ky., 882 S.W.2d willfully respect acts with to a result or to Ray Commonwealth offered evidence that intentionally, conduct when he acts not acci- disciplined by had never been and dentally involuntarily, according and done was considered good others to be a em- purpose. ato ployee. They Ray also showed that was no error the instructions reported the appro- violations at issue given. The instructions included all of the priate shortly officials and doing after so elements as set forth in 61.102. supervisor Ray’s Woodward ordered turn order employees to remain silent on judgment of is conviction affirmed. subject. Then, progressed issue notified, after police and state were COOPER, JOHNSTONE, STEPHENS, Ray Woodward ordered demoted all JJ., WINTERSHEIMER, Special from records RALL, Justice JOHN P. concur. brought to his office. The Commonwealth LAMBERT, C.J., by separate dissents presented sufficient evidence to convict STUMBO, J., opinion joins. in which public Woodward of em- ployee. GRAVES, J., sitting. Finally, argues LAMBERT, Justice, dissenting. Chief
trial court erred in jury its instructions to the against of reprisal public offense majority knowledge has held that of employee. He claims that instructions as upon Woodward’s removal from office convic- given by the Court failed to make it clear to principal tion could not used be jury they required were to find that witness for the- Commonwealth. Due to the Ray knew that he had made accusations potential for such evidence to reveal an im- him, against witness, and that was the this reason for proper motive for the Ray’s demotion. testify him, political opponent, against I believe exclusion of this evidence to have To find Woodward of prejudicial error. employee the in- structed as follows: Appellant of a was convicted misdemeanor. Hopkins County Ordinarily
A.That only penalty on or about available for a September 9, 1994, within 12 months misdemeanor is confinement in conviction jail up for to twelve months
monetary Upon con TAYLOR, fine. misdemeanor Appellant, Dennis viction, office, there v. of removal from office. additional sanction Kentucky, COMMONWEALTH upon readily Removal conviction Appellee. testimony against invites an accused that Thus, might politically be motivated. where No. 1997-CA-002104-MR. consequences there are outside of the ordi Kentucky. Appeals Court structure, nary penalty it rea would be sonable and fair to allow witnesses Dec. 1998. questioned impeachment purposes re extraordinary knowledge garding their
consequences. information is vital to Such credibility. in assessment See Commonwealth, Ky.,
Holt v. 259 S.W.2d (1953) (witness may be cross-examined hostility
regarding any facts bias or called); party against whom he is
towards the Commonwealth, Ky., v. 572 S.W.2d
Keller (1978) (the
157, 159 jury is to hear all entitled might an influ
the relevant facts that testimony on a that the
ence witness’
may weight “properly estimate the
given testimony”); witness’ Williams
Commonwealth, Ky., 569 S.W.2d (“the to cross-examine witness credibility is fundamental his trial”).
fair statutory from office as a
With removal
consequence, magnitude improper mo- In
tivation it reveal is could tremendous. bar, credibility at testi-
case of witnesses proper-
fying could not be
ly inquiry evaluated without an knowledge extraordinary
into their of removal from office.
sanction
STUMBO, J., joins dissenting opinion. Vidmer, Murray, Appellant.
Steve