BEFORE THE ASHEVILLE CIVIL SERVICE BOARD

ROBERT FROST VERSUS THE CITY OF ASHEVILLE

CITY HALL, 6TH FLOOR TRAINING ROOM

MONDAY, SEPTEMBER 15, 2014

BOARD MEMBERS:

MARV ROSEN, CHAIRMAN

ALAN COXIE, VICE CHAIRMAN
LYNN MOFFA
VIRGINIA ROBINSON
CAROLYN WORTHINGTON

APPEARANCES:

JOHN C. HUNTER, ESQ.

Adams, Hendon, Carson, Crow & Saenger, P.A.
72 Patton Avenue
Asheville, North Carolina 28801
on behalf of Robert Frost

SABRINA PRESNELL ROCKOFF, ESQ.

McGuire, Wood & Bissette, PA
48 Patton Avenue
Asheville, North Carolina 28801
on behalf of City of Asheville

PATSY BRISON, ESQ.

Roberts & Stevens, P.A.
BB&T Building, Suite 1100
One West Pack Square
Asheville, North Carolina 28801
on behalf of Asheville Civil Service Board

ATTENDING:

KELLY DICKENS, HR DIRECTOR

REPORTED BY: Electronic audio verbatim recording

TRANSCRIBED BY: Leslie Iversen

ASHEVILLE REPORTING SERVICE
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1 (Document LI1611)

2 INDEX

3 Proceedings . . . . . . . . . . . . . . . . . 3

4 Decision Of The Board . . . . . . . . . . . . 5

5 Certificate of Notary Public . . . . . . . . 9

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Asheville Reporting Service

111 McDowell Street, Asheville, NC 28801
828-254-9230
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1 P R O C E E D I N G S

2 SEPTEMBER 15, 2014

3 BY MR. ROSEN:

4 Good afternoon everyone. Today is

5 September 15th of 2014. We are going to

6 reconvene and continue the grievance hearing

7 of Robert Frost. Our next activity will be to

8 go into closed session to continue our

9 deliberation. Would someone make a motion to

10 that effect please.

11 BY MR. COXIE:

12 I will. Pursuant to the authority set forth

13 in North Carolina General Statute Section 143-

14 318.11a6 in order to hear and investigate a

15 complaint, charge or grievance by or against

16 an individual public officer or employee, and

17 the authority in North Carolina General

18 Statute Section 143-318.11a3, in order to

19 consult with an attorney, employee or retained

20 by the Civil Service Board in order to

21 preserve the attorney/client privilege between

22 the attorney and the public body, I move that

23 the Civil Service Board go into closed

24 session.

25 BY MS. MOFFA:

Asheville Reporting Service

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1 Second.

2 BY MR. ROSEN:

3 It's been moved and seconded that we go to

4 closed session, all in favor say aye.

5 (AYES)

6 BY MR. ROSEN:

7 Opposed?

8 (NO RESPONSE)

9 BY MR. ROSEN:

10 We are in closed session.

11 (BOARD IN CLOSED SESSION TO DELIBERATE)

12 BY MR. COXIE:

13 At this time I move that we return ---

14 BY MS. BRISON:

15 Before you do that, if you will just note that

16 you've returned to open session.

17 BY MR. ROSEN:

18 We have returned to open session.

19 BY MR. COXIE:

20 At this time, I'll move that we return to open

21 session from our previous closed session.

22 BY MS. BRISON:

23 You don't need to repeat that.

24 BY MR. ROSEN:

25 Is there a motion to be made?

Asheville Reporting Service

111 McDowell Street, Asheville, NC 28801
828-254-9230
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1 BY MR. COXIE:

2 Is everybody present? I move as follows.

3 After hearing the evidence and testimony of

4 many witnesses, by competent, material and

5 substantial evidence, we the Board do not make

6 a determination as to whether excessive force

7 was used, but do find that the City has failed

8 to show that it was. The Board would note

9 that the application of force in question

10 occurred in the context of a resisting arrest,

11 resisting the lawful instructions of an

12 officer situation, as well as during a

13 possible physical attack upon the police

14 officer by the suspect. But given the

15 diminished quality of the surveillance video

16 in this case, the video which lacks frames

17 essential to an appropriate determination in

18 this matter, the Board is unable and therefore

19 unwilling to make a determination as to the

20 appropriateness of the force used in this

21 incident. The Board would note that the use

22 of excessive force by civilian law enforcement

23 agencies should not be tolerated. To this

24 end, the Board would note that the City of

25 Asheville, and more specifically the Asheville

Asheville Reporting Service

111 McDowell Street, Asheville, NC 28801
828-254-9230
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1 Police Department, was correct in its decision

2 to seek to rigorously enforce its use of force

3 policy. However, our determination does not

4 end there. Whenever an employee who, like any

5 suspect, is also a citizen with rights

6 afforded by City policy, state law and the

7 North Carolina and United States

8 Constitutions, is subjected to discipline as a

9 result of the employment-related event, that

10 employee is entitled to and should receive due

11 process of law. Personnel policies,

12 departmental policies and disciplinary

13 policies exist for a reason. Therefore, by

14 competent, material and substantial evidence,

15 the Board further finds that the City of

16 Asheville failed to provide the employee,

17 Robert Frost, with adequate due process

18 protections in this matter, such that his

19 termination as a result of this incident was

20 improper and in violation of City policy. The

21 Board concludes that the action of the City to

22 terminate Officer Frost was not justified;

23 orders that the termination of Officer Frost

24 is rescinded, and orders that the City

25 reinstate Officer Frost as a senior patrol

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1 officer in the Asheville Police Department

2 effective as of March 12, 2014, with back pay

3 and all benefits. Finally, the Board

4 recommends one, that the use of force in this

5 case be reviewed by the use of force, pursuit

6 and accident policy review board; two, that

7 there be a departmentwide training on the

8 department's use of force policy in light of

9 this incident; and three, that the Asheville

10 Police Department policies and practices be

11 reviewed for consistency with the goal being

12 that the Asheville Police Department follow

13 and apply its policies in every case. The

14 written decision of this Board will be

15 rendered within ten days by and through Board

16 counsel. I so move.

17 BY MR. ROSEN:

18 Is there a second?

19 BY MS. MOFFA:

20 I second.

21 BY MR. ROSEN:

22 Is there any discussion? All in favor of the

23 motion as read say aye.

24 (AYES)

25 BY MR. ROSEN:

Asheville Reporting Service

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1 Opposed?

2 (NO RESPONSE)

3 BY MR. ROSEN:

4 Motion passes unanimously. I want to thank

5 the Board, the City, Mr. Frost and your

6 representatives for bearing with us and

7 presenting a very thorough case on both sides.

8 I want to particularly thank the Board for its

9 commitment to hear all the evidence and hear

10 it all the way through. We are volunteers,

11 but we take our responsibility seriously and I

12 appreciate that from all of us. We have one

13 other item on the agenda today?

14 BY MS. BRISON:

15 Just ask if there's anything else in this

16 matter from either party.

17 (NO RESPONSE)

18 BY MR. ROSEN:

19 Thank you.

20 (PROCEEDINGS IN THE ABOVE-ENTITLED MATTER WERE

21 CONCLUDED.)
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Asheville Reporting Service

111 McDowell Street, Asheville, NC 28801
828-254-9230
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CERTIFICATE

I do hereby certify that the foregoing

constitutes a transcript of the above-captioned

proceedings that were electronically recorded; that

this transcript was produced under my supervision;

that the transcriptionist was not in the courtroom

at the time of the proceeding; that the

transcriptionist did listen to the recording with

diligence; and that the transcript produced is a

verbatim record of what is on the recording, to the

best of the transcriptionist's ability to hear and

comprehend.

I certify that I am not financially interested

in the outcome of this action, a relative,

employee, attorney or counsel of any of the

parties, nor am I a relative or employee of such

attorney or counsel.

____________________________

Karen L. Kornhauser
Sworn before me this 23rd day of April, 2014.

_______________________________________

Eduardo Diez-Ruiz, Notary Public

Notary Public No.: 200811600134

Asheville Reporting Service

111 McDowell Street, Asheville, NC 28801
828-254-9230