Opinion
NO. 2016-CA-000020-MR
06-02-2017
MT. WASHINGTON FIRE PROTECTION DISTRICT APPELLANT v. MICHAEL DOOLEY APPELLEE
BRIEF FOR APPELLANT: Laurie Goetz Kemp Louisville, Kentucky BRIEF FOR APPELLEE: Kenneth McCardwell Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE RODNEY BURRESS, JUDGE
ACTION NO. 12-CI-00199 OPINION
AFFIRMING
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BEFORE: CLAYTON, COMBS AND TAYLOR, JUDGES. COMBS, JUDGE: Michael Dooley filed an action in Bullitt Circuit Court pursuant to KRS Chapter 75 to contest his separation from employment with the Mt. Washington Fire Protection District (the District). The circuit court found that the District's board of trustees (the Board) acted invalidly in terminating Dooley's employment and concluded that he must be reinstated as the District fire chief. The District appeals to this court. After our review, we affirm.
Kentucky Revised Statutes. --------
We adopt as our own the following summary of the facts as set forth in the circuit court's judgment (without citations to the record):
Originally, Mount Washington Fire District operated the Mount Washington Fire Department as a volunteer only fire department. Michael Dooley was a volunteer firefighter for many years. Dooley received many certifications and much training related to firefighting. He became a volunteer fire chief on October 28, 1982. He also held a job with Anderson Austin News.
In 2001, Dooley was promoted to a supervisor position with Anderson. Around this time, he was also getting divorced. Due to the increased time commitment of a supervisor role, as well as his desire to spend more time with his son following his divorce, Dooley found he could no longer handle the time commitment to be the volunteer fire chief. Dooley indicated to the Board his intention to resign from his volunteer chief position. In response, the Board offered to match Dooley's current salary at Anderson if he would instead come on as a paid fire chief full time. These negotiations resulted in a contract providing for compensation and benefits.
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Dooley's first contract had a term of five years. After it expired, a second contract was entered on January 9, 2007. It is this contract which is at issue in this case. One relevant provision of the contract states as follows:
The terms of the employment shall be five (5) years from the effective date of this agreement. The effective date of this agreement shall commence on January 2, 2007, and shall terminate on January 2, 2012.
In 2008, formal charges were filed against Dooley relating to the use of Fire Department funds. Dooley received written notice of the charges. That notice stated that charges had been brought against Dooley pursuant to KRS 75.130 for misconduct. It was sent from the Secretary of the Board (Steve Kennedy) at the request of the Chairman of the Board of Trustees. A hearing was conducted pursuant to KRS 75.130, and after a four to three vote the charges were dismissed, and Dooley returned to duty. The court notes that the Board at that time interpreted the contract to require compliance with KRS 75.130 by its actual practice.
In October 2010, Dooley suffered a foot injury while on the job. This injury resulted in him missing some work and being placed on light duty for several months. In the early summer months of 2011, it was first mentioned in a Board meeting that Dooley's contract would expire in January 2012. On June 14, 2011 a motion was made to open the chief's position to applications to gauge interest.
Motion made by John Jarrett, Seconded by Gary Lawson, the Chief's contract expires on the 2nd of January 2012 and to open that position for acceptance of applications statewide and look at other opportunities, we have assured the members of the fire department that we provide the best equipment that we can and provide the best facility that we can, we have done that and I think we ought to go with the best leadership. Motion carried with John Jarrett, Gary Lawson, and Tom Whitt in favor of motion. Wayne Hodge and Steve Kennedy opposed motion. Darrell Vires abstained.
At that same meeting, there was discussion about forming a hiring committee to review the applications for chief.
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Eventually, Board member John Jarrett did in fact chair the committee. Several proposed requirements for the chief
position were adopted, including requiring a certified EMT and a physical agility test. Dooley was not a certified EMT and expressed concerns about his inability to perform the agility test because of his recent foot injury.
A newspaper ad was prepared announcing the taking of applications for chief. A deadline date was given to complete application packages. Eight applications were received. Dooley did not turn in an application. It took several months for the hiring committee to actually form and begin meeting. Dooley instead provided written notice seeking a KRS 75.130 hearing. The Court notes that during that period of time when the search was occurring Dooley continued to serve as Chief and the minutes show no vote was taken to relieve him of that duty.
The Board concedes no charges were ever filed nor was a hearing ever conducted. A letter of termination dated November 29, 2011 was sent to Dooley signed by Board member Wayne Hodge as Secretary. No vote was ever taken by the Board terminating Dooley. Jon Jarrett testified they did not have to take a vote as the employment contract terminated on January 2, 2012. A follow-up letter from Dooley's counsel to the Board again referenced the need for a hearing under KRS 75.130 prior to his termination. At the December 13, 2011 Board meeting a vote was taken to approve a new contract and to offer that contract to Charles Fugate. Again, no vote was taken to terminate Dooley.
Dooley served as the District's chief until January 2, 2012. On January 1, 2012, he wrote a check to the District for $200.00, representing a return of petty cash. The next day, he turned in his command unit, station keys, and turnout gear. The District canceled Dooley's health and life insurance, and it paid him through January 2, 2012. Pursuant to statute, Dooley's successor thereafter attended the District's board meetings.
On February 20, 2012, Dooley filed a civil action against the District alleging that he had been terminated without a hearing in violation of KRS 75.130, which is entitled, "Discipline of members and employees." The District answered the complaint and denied the allegations. Its motions for summary judgment were subsequently denied.
A four-day bench trial began on September 15, 2015. The District acknowledged that from April 2011 through January 2, 2012, it did not consider any disciplinary charges brought against Dooley pursuant to the provisions of KRS 75.130. The District argued that Dooley had not been dismissed pursuant to the provisions of KRS 75.130. It contended instead that the terms of his contract had been fulfilled and that the contract had expired on January 2, 2012, pursuant to its express terms.
Following the presentation of evidence, the trial court concluded that the District was entitled to decide not to renew Dooley's employment agreement. However, the court reasoned that if the District opted not to renew the contract, it was required to provide Dooley with procedural due process pursuant to the provisions of KRS 75.130. The trial court found that because the District had failed to provide Dooley with the required notice and hearing, Dooley's employment agreement was automatically renewed for another five-year term - expiring on January 2, 2017. The court ordered that Dooley be reinstated as the District's fire chef and awarded him $72,418.73 (plus interest) in damages.
The District filed a motion for additional findings of fact and asked the court to alter, amend, or vacate the judgment. The trial court denied the post-judgment motion. This appeal followed.
On appeal, the District argues that the trial court erred by concluding that the provisions of KRS 75.130 govern Dooley's separation from employment. We disagree.
The issue on appeal involves the interpretation of a statute and the application of that law to the facts. Consequently, the trial court's conclusions are subject to our review de novo. See Floyd County Bd. of Ed. v. Ratliff, 955 S.W.2d 921 (Ky. 1997).
Subsection (1) of KRS 75.130 governs our analysis. In mandatory language, the statute directs that an employee not be dismissed without a due process hearing. It contemplates an elaborate and detailed procedure if charges are filed against an employee by "any person." The statute provides as follows:
(1) [N]o member or employee of a fire protection district shall be reprimanded, dismissed, suspended, or reduced in grade or pay for any reason except inefficiency, misconduct, insubordination, or violation of law or of the rules adopted by the board of trustees of the fire protection district, and only after charges are preferred and a hearing conducted as provided in this section.
(emphasis added).
In this case, no charges of misconduct or any of the statutory grounds were ever asserted against Dooley. Nonetheless, he was terminated by the Board by its letter of November 29, 2011. Again, no charges were filed. No hearing pursuant to KRS 75.130 was conducted. No vote of the Board was even taken.
The Board apparently believed that by allowing Dooley to continue to work until January 2, 2012, which would have been the normal expiration date of his employment contract, it could circumvent his statutorily guaranteed due process protections. The Board was advised by his attorney that Dooley specifically and unequivocally sought recourse to a hearing. Yet it wholly ignored the required procedure.
We agree with the judgment of the Bullitt Circuit Court that the Board's action with respect to its attempted termination was invalid.
Therefore, we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Laurie Goetz Kemp
Louisville, Kentucky BRIEF FOR APPELLEE: Kenneth McCardwell
Louisville, Kentucky