Opinion
No. 2002-CA-001308-MR.
May 7, 2004.
Appeal from Letcher Circuit Court, Honorable Samuel T. Wright, III, Judge, Action No. 95-Ci-00194.
Reversing and Remanding
Albert B. Chandler III, Attorney General, D. Brent Irvin, Assistant Attorney General, Frankfort, Kentucky, Briefs for Appellant, State Board for Elementary and Secondary Education.
D. Brent Irvin, Assistant Attorney General, Frankfort, Kentucky, Oral Argument for Appellant, State Board for Elementary and Secondary Education.
Arthur L. Brooks, J. Follace Fields, II, Lexington, Kentucky, Briefs for Appellees.
J. Follace Fields, II, Lexington, Kentucky, Oral Argument for Appellees.
Michael J. Schmitt, Jeffrey M. Baldwin, Paintsville, Kentucky, Briefs for Appellant, Board of Education of Letcher County.
BEFORE: JOHNSON, MINTON AND TACKETT, JUDGES.
OPINION
The Commonwealth of Kentucky, State Board for Elementary and Secondary Education (State Board) has appealed from an order of the Letcher Circuit Court entered on March 28, 2002, which found that Truman Halcomb and Phillip Brown, the appellees herein, had not received notice of their scheduled hearing date in accordance with the procedural requirements of KRS 161.765(2). The trial court ordered that Halcomb and Brown be reinstated to their former positions and that the State Board provide compensation to Halcomb and Brown for "all lost wages and other benefits" since their "wrongful termination." Having concluded that the procedural notice requirements of KRS 161.765(2) were not followed, but that the trial court erred by ordering the State Board to compensate Halcomb and Brown with back-pay, we reverse and remand for further proceedings.
Kentucky Revised Statutes.
The trial court ordered the Board of Education of Letcher County, Kentucky (Letcher County Board) to reinstate Halcomb and Brown to their former positions. The Letcher County Board appealed that order in a separate appeal (2002-CA-001375-MR) which has been dismissed pursuant to a settlement agreement.
The relevant facts of this case are not in dispute. Halcomb and Brown were both employed by the Letcher County Board beginning in approximately 1963. Halcomb began his employment as a classroom teacher, was promoted to assistant principal in 1981, and eventually assumed an administrative position as elementary supervisor in 1986. Brown also began his employment as a classroom teacher, but was later promoted to assistant principal, principal, and finally to secondary supervisor. Brown was employed as secondary supervisor for approximately 19 years.
On June 9, 1994, the State Board and the Letcher County Board entered into an agreed order whereby the Letcher County Board would become a "state-managed district" pursuant to KRS 158.785. The basis for this agreed order was that an audit of the school system had revealed a pattern of ineffective and inefficient administration of the school district. Specifically, the audit disclosed that a continuous decline in student enrollment within the school system had resulted in an instructional oversight problem, i.e., the administrator to student ratio was excessive. Initially, the Letcher County Board was permitted to actively participate in the development and implementation of an improvement plan.
Shortly before the State Board and the Letcher County Board entered into the agreed order, but subsequent to the finding that the Letcher County school system had deficiencies with regard to instructional oversight, Michael King, then-interim superintendent of Letcher County Schools, recommended combining four central office positions into three "new" positions. In addition, King recommended that Halcomb and Brown be laterally transferred into two of these three positions.
King's position as interim superintendent lapsed when the Letcher County Board resumed local control of the school district.
However, on April 24, 1995, King was called to meet with, among others, then-Commissioner of Education Dr. Thomas Boysen. At this meeting, a decision was made to eliminate five positions in the central office, two of which were held by Halcomb and Brown. By individual letters dated April 24, 1995, Halcomb and Brown were informed that their respective positions were being abolished pursuant to the school district's reorganization plan. These letters also informed Halcomb and Brown that they were being demoted to the position of classroom teacher.
Commissioner Boysen was succeeded by Wilmer Cody in 1996, who was later succeeded by Gene Wilhoit in 2000.
Neither Halcomb nor Brown was accused of any wrongdoing; their demotions stemmed solely from the decision to reorganize the central office in response to declining student enrollment.
By identical notices dated May 2, 1995, Halcomb and Brown informed King pursuant to KRS 161.765(2), that they were requesting a hearing regarding their respective demotions. By letters dated May 5, 1995, King sent Halcomb and Brown notices acknowledging receipt of their requests for a hearing. Specifically, King's letters stated in pertinent part as follows:
In accordance with KRS 161.765, your hearing is being scheduled for May 15, 1995, which is 20 days after you received notice and a written statement of the grounds for demotion on April 25, 1995.
The hearing was conducted as scheduled on May 15, 1995, before Debbie Hendricks, a hearing officer for the State Board. Following the hearing, Hendricks rendered a decision upholding the demotions of Halcomb and Brown.
Three days prior to the date of the hearing, on May 12, 1995, Commissioner Boysen issued a written order notifying the Letcher County Board that Commissioner Boysen, through his appointees and management team, would be making "all decisions previously made" by the Letcher County Board, which effectively suspended all decision-making authority of the Letcher County Board.
On May 25, 1995, after Halcomb's and Brown's applications for three other administrative positions within the school system were denied, both men served notice through King that they were electing to retire in order to avoid a reduction in their retirement benefits. In these letters, Halcomb and Brown informed King that although they were retiring, they were not waiving any of their rights with respect to the demotions.
On June 9, 1995, Halcomb and Brown filed a complaint in the Letcher Circuit Court, naming as party defendants the State Board, the Letcher County Board, King, in his official capacity as interim-superintendent, and Commissioner Boysen, in his official capacity as Commissioner of Education. In their complaint, Halcomb and Brown alleged the following:
James Slone, who was also an administrator in the Letcher County school system, originally joined with Halcomb and Brown in their complaint, but he withdrew as a plaintiff prior to the entry of the order from which the State Board has appealed.
1. That they were denied due process of law under the Fourteenth Amendment to the United States Constitution and Section 2 of the Kentucky Constitution when the named defendants failed to adequately provide them with a complete statement regarding the reasons for their demotions as required by KRS 161.765(2)(b).
2. That they were denied due process of law due to their assertion that Hendricks was "a legally biased hearing officer."
3. That in violation of KRS 161.765(2), the hearing was held less than 20 days after they had requested a hearing from King, which denied them an opportunity to prepare an adequate defense.
4. That no legal cause was shown which would have justified the demotion.
5. That in violation of KRS 161.765 and KRS 161.760, the named defendants failed to provide written notice of the final action taken following the hearing.
6. That Commissioner Boysen lacked the authority to demote Halcomb and Brown, thus rendering said demotions void.
On June 29, and July 3, 1995, the named defendants filed motions to dismiss, "on grounds of improper venue and lack of jurisdiction." They argued that since the State Board had been named as a party defendant, KRS 452.430 required the cause of action to be brought in the Franklin Circuit Court. On July 25, 1995, the trial court entered an order denying the motions to dismiss, after finding that venue was proper and that the trial court had jurisdiction over the matter.
On June 19, 1996, the named defendants filed a motion requesting that Judge Samuel T. Wright, III recuse himself from presiding over the matter. As the basis for the motion to recuse, the named defendants pointed to a separate civil action in which the Letcher County Board and its members had filed suit against Commissioner Boysen and King, challenging the manner in which some decisions had been made with respect to the operation of the Letcher County schools. The named defendants noted that in the prior action, Judge Wright had, sua sponte, recused himself on the basis of KRS 26A.015(2)(e), which requires recusal "where [the judge] has knowledge of any other circumstances in which his impartiality might reasonably be questioned." The named defendants argued that since some of the same parties were involved, Judge Wright should likewise recuse himself from presiding over the proceedings below in the instant case. Judge Wright denied the motion to recuse.
95-CI-00186.
The date on which Judge Wright denied the motion to recuse is not clear from the record.
On July 16, 1996, Halcomb and Brown filed an amended complaint, adding a claim that the same named defendants had failed to state "the true reasons" for the demotions, which, according to Halcomb and Brown, rendered the demotions void and denied them due process of law.
By an agreed order entered on August 27, 2001, the trial court bifurcated the claims of Halcomb and Brown. The trial court ordered that it would first hear arguments related to any issues surrounding the appeal of their demotions before ruling on any other claims. After allowing the parties time to file briefs on the matter, the trial court entered findings of fact, conclusions of law, and judgment on March 28, 2002. Among other things, the trial court found that Halcomb and Brown had not received notice of the scheduled hearing date in accordance with the procedural requirements of KRS 161.765(2). The trial court thus ordered the Letcher County Board to reinstate Halcomb and Brown to their former positions and the State Board to provide compensation to Halcomb and Brown for "all lost wages and other benefits" since their "wrongful termination." This appeal followed.
The State Board raises several claims of error on appeal. We first address the State Board's argument that since it was named as a party defendant in Halcomb's and Brown's complaint, venue was not proper in the Letcher Circuit Court. In resolving this issue, we turn to KRS 452.430, KRS 161.765(2)(f), and KRS 161.790(9).
KRS 452.430 states in full as follows:
An action against the Kentucky Board of Education, of this state, must be brought in the county that includes the seat of government.
However, KRS 161.765(2)(f) provides that where an administrator with three or more years of administrative service has been demoted, the administrator may appeal the school board's decision to uphold a demotion in the manner as provided in KRS 161.790(9), which reads in pertinent part as follows:
It is not disputed that both Halcomb and Brown had three or more years of administrative service.
The [administrator] shall have the right to make an appeal to the Circuit Court having jurisdiction in the county where the school district is located. . . .
Hence, there appears to be a conflict in the above statutes. However, it is a well-settled rule of statutory construction that "when two statutes are in conflict, one of which deals with the subject matter in a general way and the other in a specific way, the more specific provision prevails."
Travelers Indemnity Co. v. Reker, Ky., 100 S.W.3d 756, 763 (2003).
In the case sub judice, it must be remembered that the State Board was named as a party defendant because it had stepped in to perform the functions normally undertaken by the Letcher County Board. Therefore, while KRS 452.430 generally calls for suits brought against the State Board to be filed in the Franklin Circuit Court, KRS 161.765(2)(f) specifically addresses those situations where an administrator is appealing a local school board's decision to uphold a demotion. Accordingly, since the State Board was performing the functions of the Letcher County Board when it upheld the demotions of Halcomb and Brown, venue in the Letcher Circuit Court was proper under KRS 161.765(2)(f).
We next address the State Board's argument that Judge Wright should have recused himself from presiding over the proceedings below. In Stopher v. Commonwealth, our Supreme Court stated:
Ky., 57 S.W.3d 787, 794 (2001).
KRS 26A.015(2) requires recusal when a judge has "personal bias or prejudice concerning a party . . . [,]" or "has knowledge of any other circumstances in which his impartiality might reasonably be questioned." The burden of proof required for recusal of a trial judge is an onerous one. There must be a showing of facts "of a character calculated seriously to impair the judge's impartiality and sway his judgment." The mere belief that the judge will not afford a fair and impartial trial is not sufficient grounds for recusal [citations omitted].
In its brief to this Court, the State Board claims that Judge Wright should have recused himself (1) due to Judge Wright's previous recusal in a suit brought by members of the Letcher County Board against then-Commissioner Boysen and King; and (2) because of the State Board's assertion that "a judge looking toward future elections would find it exceedingly difficult to make unpopular rulings against the local power structure that had mismanaged the Letcher County Schools." In short, the State Board has failed to point to any specific facts which would tend to "impair [Judge Wright's] impartiality" or "sway his judgment." The State Board's mere belief that Judge Wright might not be impartial is not a sufficient basis for requiring his recusal. Accordingly, Judge Wright did not err by denying the motion for recusal.
Next, we turn to the State Board's claim that the trial court erred by concluding that Halcomb and Brown did not receive notice according to the requirements of KRS 161.765(2). The State Board argues that since Halcomb and Brown received notice of the grounds for their dismissal on April 24, 1995, the procedural requirements of KRS 161.765(2) were satisfied even though Halcomb and Brown were given only ten days to prepare for their hearing after the hearing date was established. We disagree.
Pursuant to the statutory scheme provided under KRS 161.765(2), the appeal of a superintendent's decision to demote an administrator with three or more years of administrative service must proceed in the following manner:
(a) The superintendent shall give written notice of the demotion to the board of education and to the administrator. If the administrator wishes to contest the demotion, he shall, within ten (10) days of receipt of the notice, file a written statement of his intent to contest with the superintendent. If the administrator does not make timely filing of his statement of intent to contest, the action shall be final.
(b) Upon receipt of the notice of intent to contest the demotion, a written statement of grounds for demotion, signed by the superintendent, shall be served on the administrator. The statement shall contain:
1. A specific and complete statement of grounds upon which the proposed demotion is based, including, where appropriate, dates, times, names, places, and circumstances;
2. The date, time, and place for a hearing, the date to be not less than twenty (20) nor more than thirty (30) days from the date of service of the statement of grounds for demotion upon the administrator.
(c) Upon receipt of the statement of grounds for demotion the administrator shall, within ten (10) days, file a written answer. Failure to file such answer, within the stated period, will relieve the board of any further obligation to hold a hearing and the action shall be final. The board shall issue subpoenas as are requested.
Thus, the above statutory scheme mandates that once an administrator notifies a superintendent of his desire to contest a demotion, the superintendent is required to provide the administrator with a statement of grounds for the demotion and the date, time, and place for a hearing which is to be held not less than 20 days nor more than 30 days from the service of the statements of grounds for dismissal. One of the key requirements of this provision is that after a hearing date is set, an administrator is to be given no fewer than 20 days to prepare a defense based upon the stated grounds for demotion.
In the instant case, Halcomb and Brown received identical letters on April 24, 1995, which notified them of their demotions, and stated the grounds for the demotions. By letters dated May 5, 1995, Halcomb and Brown received notice that a hearing had been set for May 15, 1995. Hence, while Halcomb and Brown were aware of the grounds for their demotions for more than 20 days prior to the scheduled hearing date, they were not given 20 days to prepare their defense after the hearing date was established. Therefore, the notice requirements of KRS 161.765(2) were not satisfied.
The State Board's reliance on Estreicher v. Board of Education of Kenton County, Kentucky, is misplaced. In Estreicher, our Supreme Court held that a notice provided to an administrator establishing a hearing date could incorporate by reference the grounds for the demotion that had been stated in previous communications. However, in Estreicher, due to the granting of a continuance, the administrator was given more than 20 days from the date of the notice establishing a hearing date in which to prepare a defense. The Supreme Court noted that under the facts of that case, the purpose behind the 20-day notice requirement, i.e., to "appris[e] [administrators] of the time available to prepare for the impending hearing," had been satisfied.
Ky., 950 S.W.2d 839 (1997).
Id. at 842.
Id. at 843.
Id. (discussing the 20-day notice requirement and stating that "we feel that the requirement of setting a time, date and place for a hearing embodied in KRS 161.765(2)(b)(2) protects administrators, apprising them of the time available to prepare for the impending hearing").
However, in the case sub judice, Halcomb and Brown were not given 20 days to prepare a defense after being notified that a hearing date had been established. Although Halcomb and Brown were made aware of the grounds for their demotions on April 24, 1995, they were not notified that a May 15, 1995, hearing date had been established until May 5, 1995. Thus, Halcomb and Brown had only 10 days in which to prepare a defense. Accordingly, the trial court did not err by concluding that Halcomb and Brown had not received notice of the hearing date in accordance with the requirements of KRS 161.765(2).
We next address the State Board's argument that the doctrine of sovereign immunity precluded an award for damages against the State Board and any state officials sued in their official capacities, and that the trial court therefore erred by ordering the State Board to pay Halcomb and Brown for "all lost wages and other benefits." We do not believe under the statutory scheme at issue herein that it is necessary to consider the doctrine of sovereign immunity, but we do agree that the trial court erred by ordering the State Board to compensate Halcomb and Brown with back-pay.
See generally Yanero v. Davis, Ky., 65 S.W.3d 510 (2001) (discussing various immunity doctrines under Kentucky law).
As we mentioned previously, pursuant to KRS 161.765(2)(f) and KRS 161.790(9), an administrator with three or more years of service has the right to appeal a school board's decision to uphold his demotion in the circuit court in the county where the school district is located. KRS 161.790(9) further references KRS 13B.150, which mandates that the circuit court conduct the appeal in the following manner:
(1) Review of a final order shall be conducted by the court without a jury and shall be confined to the record, unless there is fraud or misconduct involving a party engaged in administration of this chapter. The court, upon request, may hear oral argument and receive written briefs.
(2) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the final order or it may reverse the final order, in whole or in part, and remand the case for further proceedings if it finds the agency's final order is:
(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority of the agency;
(c) Without support of substantial evidence on the whole record;
(d) Arbitrary, capricious, or characterized by abuse of discretion;
(e) Based on an ex parte communication which substantially prejudiced the rights of any party and likely affected the outcome of the hearing;
(f) Prejudiced by a failure of the person conducting a proceeding to be disqualified pursuant to KRS 13B.040(2); or
(g) Deficient as otherwise provided by law.
Hence, when a circuit court reviews a local school board's decision to uphold a demotion under KRS 161.765(2)(f), it is limited to affirming or reversing and remanding the school board's decision on the basis of the grounds provided under KRS 13B.150(2). These remedies do not invoke the sovereign immunity doctrine.
If the statutory scheme applicable to administrators provided for payments of lost salary, such as KRS 161.790(7) provides for teachers, then the argument could be made that the Legislature had specifically waived the defense of sovereign immunity as to these particular damages.
However, we do agree that the trial court erred by ordering that the State Board compensate Halcomb and Brown with back-pay. The decision of whether to demote an administrator under KRS 161.765 is left "to the sound discretion of the local superintendent and board of education." The stated grounds for demotion are valid as long as "those grounds [are] not arbitrary or unreasonable or otherwise violative of a right protected by the State or Federal Constitutions." In Hooks v. Smith, this Court stated:
Miller v. Board of Education of Hardin County, Ky.App., 610 S.W.2d 935, 937 (1980) (superceded by statute on other grounds by KRS 160.390 and KRS 161.760).
Id.
Ky.App., 781 S.W.2d 522, 523-24 (1989).
The appellant argues that she had a property interest in her job and that she has been denied due process of law under the fourteenth amendment because of the statute's failure to forewarn her of the kind of conduct which would result in demotion. The problem with this argument is that under the statutory scheme, unlike a teacher, see KRS 161.740, a school administrator, even one who has completed three years administrative service, is not ever granted a "continuing service contract" as an administrator. This court has spoken of an "administrator with tenure[.]" Strictly speaking, however, an administrator has been given no right of tenure to an administrative position and may be removed from such position by the local board of education upon recommendation of the superintendent for any reason not offending some right protected by the state or federal constitutions or KRS 161.162. At best, the statute gives an administrator with at least three years experience an additional procedural opportunity to convince the board of the lack of merit in the superintendent's recommendation of demotion, or that it violates a constitutional or statutory right. In short, our statutory scheme does not appear to have created a "property interest" in a school administrator in continued employment as an administrator, although it does secure the right to certain procedural safeguards [citations omitted].
For provisions analogous to the former KRS 161.162, see KRS 161.164(4) (stating that, inter alia, "[n]o teacher or employee of any district board of education shall be appointed or promoted to, or demoted or dismissed from, any position or in any way favored or discriminated against with respect to employment because of his political or religious opinions or affiliations or ethnic origin or race or color or sex or age or disabling condition").
In the case at bar, our review of the record shows that after the trial court determined that Halcomb and Brown had not received notice of their hearing date in compliance with KRS 161.765(2), it did not simply reverse Hendricks's decision and remand the matter for further proceedings. Rather, the trial court, inter alia, ordered that the State Board compensate Halcomb and Brown with back-pay. This action was not authorized under the statutory scheme at issue. The circuit court, as an appellate body under KRS 161.765(2)(f), was limited to examining Hendricks's decision based upon the record generated at the hearing, and determining whether to affirm or to reverse and remand based upon the grounds provided under KRS 13B.150(2).
Halcomb and Brown have cited three cases in support of the proposition that since they did not receive notice as contemplated by the requirements of KRS 161.765(2), the trial court was justified in awarding them with back-pay. We disagree. In those cases cited by Halcomb and Brown, the procedural violations at issue occurred under different statutory provisions. Unlike KRS 161.765(2), those provisions did not set forth the manner in which the circuit court was to conduct the appeal of an administrator's demotion.
See Harlan County Board of Education v. Stagnolia, Ky.App., 555 S.W.2d 828 (1977); Stafford v. Board of Education of Casey County, Ky.App., 642 S.W.2d 596 (1982); and Banks v. Board of Education of Letcher County, Ky.App., 648 S.W.2d 542 (1983) (superceded by statute, see KRS 160.390 and KRS 161.760).
However, in the case sub judice, KRS 161.765(2)(f) specifically requires a circuit court to conduct the appeal of an administrator's demotion in accordance with KRS 13B.150. As we mentioned above, KRS 13B.150 requires the circuit court either to affirm or to reverse and remand based upon the grounds stated therein. Simply stated, KRS 161.765(2) does not contemplate that a school district's failure to comply with the procedural requirements will entitle an administrator to receive back-pay. Rather, if the procedural requirements of KRS 161.765(2) are not satisfied, the proper remedy is a reversal of the school board's decision and a remand of the matter so that a hearing can be conducted in compliance with the requirements of KRS 161.765(2).
Accordingly, we reverse that portion of the trial court's ruling ordering that Halcomb and Brown be compensated with back-pay. In addition, since we have concluded that Halcomb and Brown did not receive notice according to the requirements of KRS 161.765(2), we remand to the trial court with instructions to further remand this matter for a hearing in compliance with the procedural requirements of KRS 161.765(2). Following this due process hearing, if Halcomb and Brown desire to appeal the school board's new decision, they may do so pursuant to KRS 161.765(2)(f).
Based on the foregoing, the order of the Letcher Circuit Court is reversed and this matter is remanded for further proceedings consistent with this Opinion.
ALL CONCUR.