Opinion
NO. 2012-CA-000953-MR
01-31-2014
BEVERLY ADAMS APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH & FAMILY SERVICES, AND KENTUCKY PERSONNEL BOARD APPELLEES
BRIEF FOR APPELLANT: Ned Pillersdorf Prestonsburg, Kentucky BRIEF FOR APPELLEE, CABINET FOR HEALTH AND FAMILY SERVICES: Jennifer Wolsing Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 11-CI-00975
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; LAMBERT AND TAYLOR, JUDGES. ACREE, CHIEF JUDGE: Appellant Beverly Adams appeals from the May 9, 2012 order of the Franklin Circuit Court affirming the June 14, 2011 final order of the Kentucky Personnel Board. The Personnel Board altered the recommended order of its hearing officer to sustain Adams' request for relief and, instead, dismissed her appeal. The sole issue before us is whether the Personnel Board may reject and afford no deference to some of the hearing officer's factual findings. We answer this question affirmatively and affirm the circuit court.
Adams is employed as a Family Court Specialist with the Cabinet for Healthy and Family Services. She sought to be promoted and, in 2009, applied for the advanced position of Field Services Supervisor. She did not receive the promotion. Instead, the Cabinet awarded the position to another candidate.
Adams believed the promoted employee improperly received the appointment. Accordingly, Adams filed an appeal with the Personnel Board claiming her education and experience far exceeded those of the promoted employee, and that the Cabinet's decision not to award her the promotion was based on inappropriate criteria. Of particular import, Adams declared that, in making its promotion decision, the Cabinet failed to comply with the statutory and regulatory provisions of Kentucky Revised Statute (KRS) 18A.0751(4)(f) and 100 Kentucky Administrative Regulation (KAR) 1:400.
Pursuant to KRS 18A.0751(4)(f) and 100 KAR 1:400, the Cabinet must consider the following factors in choosing to promote a candidate: (1) qualifications, (2) performance record, (3) conduct, (4) seniority, and (5) performance evaluations; these are the five mandatory criteria. The term "qualifications," as used in 101 KRS 1:400, includes "any quality, knowledge, ability, experience, or acquirement that fits a person for a position, office, profession, etc." Cabinet for Human Res. v. Kentucky State Personnel Bd., 846 S.W.2d 711, 715 (Ky. App. 1992). The Cabinet determined that the qualifications they were looking for in a Field Services Supervisor included: interpersonal skills, dependability, motivation, supervisory abilities, problem solving skills, leadership, and conflict resolution skills.
Seniority is defined as the "total number of months of state service[.]" KRS 18A.005(36).
A hearing was conducted on December 6, 2010, before hearing officer Steve Bolton. The evidence revealed Adams has a Bachelor's and Master's degree in social work while the promoted employee has a Bachelor's degree in Interior Design. At the time of the promotion, Adams had worked eight years as a Family Support Specialist III, while the promoted employee had worked one year. Overall, Adams had 163 months of state service; the promoted employee had 118 months. Neither Adams nor the promoted employee had received any disciplinary action in recent years, and both had received positive performance evaluations.
The Cabinet convened a hiring committee to interview the candidates. Each applicant was asked to bring a completed internal mobility form and his or her last three performance evaluations to the interview; Adams and the promoted employee complied. The purpose of the internal mobility form was to gather information relevant to the five mandatory criteria for the hiring committee's consideration. In fact, the internal mobility form specifically stated that the "information [was] required pursuant to KRS 18A.0751(4)(f) and 101 KAR 1:400."
During the interview, the hiring committee asked each candidate a series of questions designed to gauge the candidate's overall qualifications, including whether the candidate possessed the skills identified by the Cabinet as being necessary to succeed as a Field Services Supervisor. The hiring committee also required each candidate to submit a writing sample. The hiring committee rated Adams' interview responses and her writing sample as "fair"; it rated the promoted employee's interview responses and writing sample as "excellent."
Following the interviews, the hiring committee captured each candidate's qualifications on a Selection Worksheet. The Selection Worksheet specifically addressed each of the five mandatory criteria. Ultimately, the hiring committee recommended the promoted employee receive the promotion.
After hearing the conflicting evidence, the hearing officer issued a recommended order favoring Adams, in substance. The hearing officer found the Cabinet gave mere lip service, as opposed to meaningful consideration, to the five mandatory criteria. The hearing officer further found: (1) the Cabinet failed to consider the five mandatory criteria during the interview selection process; and (2) the Cabinet made its promotion decision based almost solely on the strength of the promoted employee's interview and writing sample without regard to the five mandatory criteria. The Cabinet filed timely exceptions to the hearing officer's recommended order.
The hearing officer concluded Adams failed to present probative evidence that would prove her failure to receive the promotion was the product of age or political discrimination.
The Personnel Board considered the issues and, after hearing oral arguments and reviewing the record, deviated from the hearing officer's recommended order. Ultimately, the Personnel Board found that the Cabinet gave appropriate consideration to the five mandatory criteria. The Personnel Board issued the following findings relevant thereto:
10. The Board rejects the analysis of the Hearing Officer and finds that the ability to communicate effectively is one of the qualifications used by the [Cabinet] to judge the candidates for the Field Services Supervisor position. . . . The Board finds that, as used in this case, the interview was not a factor separate from the five statutory and regulatory mandated criteria, but was merely a tool to help judge those criteria, particularly qualifications.Based on these findings, the Board disagreed with the hearing officer and concluded the Cabinet gave appropriate consideration to the five mandatory criteria, and ordered Adams' appeal be dismissed.
11. The Board finds that the [Cabinet] through its interview panel gave appropriate consideration to the candidates' seniority, qualifications, performance evaluations, record of performance and conduct. The interview panel members reviewed the last three Performance Evaluations of the candidates. The members of the interview panel also used the internal mobility forms as another tool to give appropriate consideration to the candidates' seniority, qualifications, performance evaluations, record of performance and conduct.
12. The Selection Worksheet was another tool used by the Cabinet to give appropriate consideration to the five factors. It is clear from this exhibit that the interviews were used to judge the applicants' qualifications. The interview is listed as Item D under "No. 1 Qualifications" relevant to the position. This is after the Agency has reviewed Items "A. Education," "B. Experience" and "C. Additional Training Experience or Education." The Board finds that the [Cabinet] based its decision to select [the promoted employee] over Adams primarily based on qualifications. There was nothing remarkable with respect to the other four factors. The Cabinet clearly noted that Adams had more seniority than [the promoted employee], although other candidates had more seniority than both. Both had "highly effective and "outstanding" evaluations. Neither Adams nor [the promoted employee] had anything significant with respect to conduct or record of performance.
Adams appealed the Personnel Board's decision to the circuit court. By order entered May 9, 2012, the circuit court affirmed the Personnel Board's final order, finding that ruling "was supported by substantial evidence in the record as a whole." Adams then appealed to this Court.
Adams asserts the Personnel Board wrongfully ignored and erroneously altered the hearing officer's recommended findings, conclusions, and order. In so doing, Adams argues, the Personnel Board disregarded substantial evidence and violated Adams' rights by improperly reanalyzing the evidence and substituting its own factual findings, all to Adams' detriment. We disagree.
We review the circuit court's decision to uphold the Personnel Board's ruling for substantial evidence. Kentucky Unemployment Ins. Com'n v. Landmark Cmty. Newspapers of Kentucky, Inc., 91 S.W.3d 575, 578 (Ky. 2002). If there is substantial evidence in the record to support the Board's findings, they will be upheld, despite other conflicting evidence in the record. Kentucky Comm'n on Human Rights v. Fraser, 625 S.W.2d 852, 856 (Ky. 1981).
Adams is correct that a reviewing court is not at liberty to assess credibility of witnesses or to weigh the evidence presented, these tasks being reserved to the trier of fact. See Drummond v. Todd County Bd. of Educ., 349 S.W.3d 316, 322 (Ky. App. 2011)(citation omitted). Indeed, any trier of fact is to be "afforded great latitude" in its evaluation of the evidence presented. Kentucky State Racing Comm'n v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972). Adams concludes from these principles that the Personnel Board may not reject the determinations made by the hearing officer. However, it is an idiosyncrasy of administrative law that the Personnel Board, rather than the hearing officer, bears responsibility for the final order; the Personnel Board functions as the ultimate trier of fact. See Bowling v. Natural Resources and Environmental Protection Cabinet, 891 S.W.2d 406, 410 (Ky. App. 1994) ("The [Kentucky Personnel] Board as trier of facts [may] consider[] all of the evidence and chose the evidence it believe[s]."); KRS 18A.100(1)("Any final order of the board either upholding or invalidating the dismissal, demotion, suspension, or other penalization . . . may be appealed[.]"); KRS 18A.095(17) ("All administrative hearings conducted by the board shall be conducted in accordance with KRS Chapter 13B."); KRS 13B.120(1)("In making the final order, the agency head shall consider the record including the recommended order and any exceptions duly filed to a recommended order."); KRS 13B.120(2) ("The agency head may accept the recommended order of the hearing officer and adopt it as the agency's final order, or it may reject or modify, in whole or in part[.]"); KRS 13B.120(3) ("If the final order differs from the recommended order, it shall include separate statements of findings of fact and conclusions of law."); Rapier v. Philpot, 130 S.W.3d 560, 563 (Ky. 2004) ("The agency head is required to review the entire record and to determine whether there is justification—according to the facts and the applicable law—for adopting the recommended order. If the agency head deviates from the recommended order, it must make separate findings of fact and conclusions of law for any deviation from the recommended order.").
Such idiosyncrasies of the modern administrative state were discussed at length in Baker v. Commonwealth of Kentucky, Kentucky Retirement Systems, 2007 WL 3037718, *22-*25 (No. 2005-CA-001588) (Ky. App. Oct. 19, 2007), particularly regarding the degree of deference owed to the hearing officer by the agency head.
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Thus, the Personnel Board is certainly permitted to deviate from the recommended order of the hearing officer as it deems fit and to publish separate findings of fact and conclusions of law. All that is required is that the agency head's final order be supported by substantial evidence appearing in the record created by the hearing officer and agency head. In this case, the Personnel Board exercised its executive prerogative. It considered the hearing officer's recommended order and the exceptions filed thereto, reviewed the record, drew its own conclusions, and issued separate findings and conclusions, supported by substantial evidence, substantiating its deviation. The Personnel Board found particularly persuasive the internal mobility form and Selection Worksheet, both of which captured each candidate's information relevant to the five mandatory criteria, and the unmistakable inference that only the qualifications criterion meaningfully separated Adams and the promoted employee. Accordingly, we perceive no error.
The Franklin Circuit Court's May 9, 2012 order is affirmed.
LAMBERT, JUDGE, CONCURS.
TAYLOR, JUDGE, DISSENTS AND WILL NOT FILE SEPARATE OPINION. BRIEF FOR APPELLANT: Ned Pillersdorf
Prestonsburg, Kentucky
BRIEF FOR APPELLEE, CABINET
FOR HEALTH AND FAMILY
SERVICES:
Jennifer Wolsing
Frankfort, Kentucky