City may owe former Jefferson County Constable David Whitlock unpaid salary
Kentucky Court of Appeals reverses ruling that dismissed Whitlock's lawsuit, alleging city underpaid him for constable work
Monday, January 12th 2015, 1:11 PM EST
LOUISVILLE, Ky., (WDRB) --
The state Court of Appeals has overturned a lower court's dismissal of a lawsuit in which former Jefferson County Constable David Whitlock, who pleaded guilty in the shooting of a suspected shoplifter in a Walmart parking lot, alleges he was underpaid by the city.
Whitlock claims Louisville Metro Government should have paid him about $1,000 a month from Jan. 2007 until he was forced to resign as part of a plea agreement in 2012, but was given no more than $300 a month.
Jefferson Circuit Court Judge Susan Shultz Gibson dismissed the suit in 2013, ruling the city had the right to fix the rate of pay for its constables.
But the appeals court on Jan. 9 ruled that state law provides that the salary for a constable in a county with a population of more than 250,000 shall be $9,600 a year plus $200 a month for vehicle mileage reimbursement. The appeals court sent the case back to circuit court.
The city, however, also argued that Whitlock is not entitled to compensation because he failed to properly perform his job or comply with state law.
In an interview Monday, Pat Mulvihill, of the Jefferson County Attorney's Office, said Whitlock hasn't produced records that he worked enough hours to earn the full salary.
"He has to substantiate what he did and he's never submitted bills to justify earning $9,600," Mulvihill said. "You can't just pay people for doing nothing. He has to justify he did something that benefited the public."
The appeals court ruled that Gibson had not ruled on that particular issue, so it was not "properly before us and we cannot comment on the merits of the assertion."
However, the order concluded that the city is "correct" in its position that the state constitution prevents payment in the "absence of actual public service."
Guy Hibbs, Whitlock's attorney, acknowledged that there are still "proof issues" that have to be presented in circuit court, but praised the higher court ruling, saying, "we won."
"It was a long time coming," he said.
Whitlock was forced to resign as constable and agree to never work in law enforcement again as part of a plea agreement in 2012 that spared him from having to go to prison for shooting a woman in a southwestern Louisville Walmart parking lot.
Whitlock entered an Alford plea in Oct. 2012, meaning he did not admit his guilt on charges of first-degree wanton endangerment and second-degree assault under extreme emotional disturbance, but he conceded there was enough evidence to convict him. He entered a diversion program and those charges have since been dismissed.
. "A lady ran over my foot and my weapon discharged."
But a Louisville Metro Police investigation found that video and witness accounts did not support Whitlock's claims that he had been struck, and it described him as approaching Tammie Ortiz with his gun pointed at her as he reached her vehicle's window.
Ortiz was wounded in her arm and face, and she was treated at a hospital and released.
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