Opinion
NO. 2012-CA-000104-MR
02-01-2013
COMMONWEALTH OF KENTUCKY, JUSTICE & PUBLIC SAFETY CABINET, DEPARTMENT OF CORRECTIONS APPELLANT v. KENTUCKY PERSONNEL BOARD AND BENNETT SMITH APPELLEES
BRIEF FOR APPELLANT: Angela E. Cordery Frankfort, Kentucky BRIEF FOR APPELLEE KENTUCKY PERSONNEL BOARD: Boyce Andrew Crocker Frankfort, Kentucky BRIEF FOR APPELLEE SMITH: John Frith Stewart Matthew P. Lynch Crestwood, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NOS. 11-CI-00300 & 11-CI-00326
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND NICKELL, JUDGES. COMBS, JUDGE: The Justice and Public Safety Cabinet, Department of Corrections ("the Cabinet"), appeals the order of the Franklin Circuit Court that affirmed the final order of the Kentucky Personnel Board ("the Board"). The final order of the Board modified the recommended order of its hearing officer and directed that Bennett Smith be reinstated to his position as a correctional officer at the Northpoint Training Center ("Northpoint") in Burgin.
On appeal, the Cabinet contends that the Board's final order was arbitrary and that its decision to alter the conclusions of law of its hearing officer constituted an abuse of discretion. We disagree and affirm.
On August 10, 2009, Smith was involved in a physical altercation with an inmate housed in a segregated unit of Northpoint. A few days later, he was advised by the Cabinet's commissioner that he would be placed on special leave with pay while the incident was being investigated by the internal affairs division. Two weeks later, Smith received a letter from Northpoint's warden indicating that the warden intended to dismiss Smith from his position as a correctional officer. Smith requested a pre-termination hearing.
Following that hearing, the warden decided that Smith's dismissal was not required under the circumstances. However, the warden believed that the final disciplinary decision rested with the Cabinet's Deputy Commissioner for Adult Institutions. After reviewing the facts of the incident, the deputy commissioner recommended that Smith should be dismissed from service. However, the deputy commissioner believed that the warden retained authority to terminate Smith. By letter dated September 21, 2009, and signed by the warden, Smith was advised that he would be dismissed from service effective September 28, 2009. Smith appealed that decision to the Board.
Following an evidentiary hearing, the Board's hearing officer concluded that the Cabinet had demonstrated by a preponderance of the evidence that Smith's dismissal from service was for just cause and that the disciplinary action taken against him was not excessive or otherwise erroneous. Smith filed exceptions to the hearing officer's recommended order.
After hearing oral arguments and reviewing the record, the Board altered the recommended order of the hearing officer. The Board concluded that the Cabinet had not shown that Smith had been dismissed for just cause. It held that the decision to dismiss Smith was both excessive and erroneous. The Board ordered that Smith be reinstated to his former position. The Cabinet appealed the Board's final order to the Franklin Circuit Court.
In an order entered on December 16, 2011, the Franklin Circuit Court affirmed the Board's final ruling. The court concluded that the Board's decision to order Smith's reinstatement was not arbitrary. This appeal followed.
The Cabinet contends that the Board erred as a matter of law by altering (by implication) the recommended findings and conclusions of its hearing officer and by failing to accord the Cabinet due deference. In response, the Board argues that it has full authority to modify or to reject any portion or the entirety of its hearing officer's recommended order and that its separate findings of fact and conclusions of law in this matter were adequately supported by the evidence.
The Cabinet is correct that any trier-of-fact is to be afforded great latitude in its evaluation of the evidence before it. Kentucky State Racing Comm'n v. Fuller, 481 S.W.2d 298 (Ky. 1972). However, it is the Board rather than the hearing officer that bears responsibility for the final order; it is the Board that acts as the ultimate trier-of-fact. See KRS 18A.100(1)("[a]ny final order of the board either upholding or invalidating the dismissal, demotion, suspension, or other penalization . . . may be appealed . . . ."); KRS 13B120(1)("[i]n 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) ("[t]he 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) ("[i]f the final order differs from the recommended order, it shall include separate statements of findings of fact and conclusions of law"). Thus, the Board is specifically authorized to deviate from the recommended order of the hearing officer as it deems fit and to render separate findings of fact and conclusions of law. In this case, we have identified no error.
There is absolutely no indication that the Board abused its discretion in this matter by failing to defer to the Cabinet's decision to dismiss Smith from service. After reviewing the evidence before it and taking into account Smith's filed exceptions, the Board determined that dismissal was excessive under the circumstances. The Board found particularly persuasive Smith's long history of excellent work performance, confirmed both by his performance evaluations and by the testimony of Northpoint's warden and Smith's fellow correctional officers. The circuit court did not err by affirming the Board's final order.
Accordingly, we affirm the order of the Franklin Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Angela E. Cordery
Frankfort, Kentucky
BRIEF FOR APPELLEE
KENTUCKY PERSONNEL BOARD:
Boyce Andrew Crocker
Frankfort, Kentucky
BRIEF FOR APPELLEE SMITH: John Frith Stewart
Matthew P. Lynch
Crestwood, Kentucky