Opinion
NO. 2011-CA-000944-MR
08-03-2012
HAROLD DIXON APPELLANT v. JOHN PAUL AMIS, in his official Capacity as Superintendent of PERRY COUNTY SCHOOLS; and BOARD OF EDUCATION OF PERRY COUNTY, KENTUCKY APPELLEES
BRIEFS FOR APPELLANT: J. Follace Fields, II Carrie C. Mullins Lexington, Kentucky BRIEF FOR APPELLEE: Leslie Patterson Vose Estill D. Banks, II Erin C. Sammons Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE WILLIAM ENGLE, III, JUDGE
ACTION NO. 10-CI-00086
OPINION
AFFIRMING
BEFORE: CLAYTON, MOORE, AND NICKELL, JUDGES. CLAYTON, JUDGE: Harold Dixon appeals the Perry Circuit Court's April 27, 2011, Findings of Fact and Conclusions of Law, which upheld the Perry County Board of Education's (hereinafter "Board") decision to terminate Dixon from his classified position with its schools. He claims that his termination was without cause, arbitrary, disproportionate to the offense charged, and did not comport with due process requirements. After careful consideration, we affirm the Perry Circuit Court.
FACTUAL AND PROCEDURAL BACKGROUND
Dixon was employed as a school bus driver by the Board in 1999 and worked for the school district until his termination in April 2009. In February 2009, he asked to borrow basketball uniforms and a mascot outfit from school officials at Lost Creek Elementary School (hereinafter "Lost Creek"), which was the school on his bus route. Dixon intended to provide these uniforms to his grandson and several of his grandson's friends to wear in protest of the closing of Lost Creek at a high school basketball game between Hazard Independent High School and Perry Central High School, which are cross-town rivals. Some people in the local community strongly opposed the closing of Lost Creek. Furthermore, an intense rivalry existed between the two high schools. In fact, law enforcement officials had been called to assist multiple times in the past with regard to this rivalry.
Dixon's request was denied by Lost Creek's principal. Still, following the denial of the request, Dixon, nevertheless, obtained a uniform for his grandson from one of the students on his bus. And, after denying the request, the principal notified the Perry County School Superintendent, John Paul Amis, about it. Upon learning of the matter, Amis asked that the Board's transportation supervisor, Johnny Wooton, speak with Dixon promptly. Wooton met with Dixon, decided that misconduct had occurred, and attempted to terminate Dixon. Amis, upon learning of Wooton's actions, rescinded the purported termination because only the school superintendent has the authority to terminate school district employees. Amis, then, suspended Dixon with pay and benefits while an investigation was conducted concerning the charges of neglect of duty, misconduct, conduct unbecoming a school employee, and/or disrupting the educational process pursuant to Board's Policy 03.2325.
In a letter, dated April 1, 2009, Amis informed Dixon of the charges against him and noted that his actions in providing the elementary school uniforms to high school students could have "ignited a volatile environment at the tournament." It went on to comment that "[s]uch a situation could have posed a threat to the safety and health of staff, students and spectators." The letter informed Dixon that he was being terminated from his employment. The legal reasons supporting the termination were neglect of duty, misconduct, conduct unbecoming a school employee under Board Policy 03.27(10) and/or disrupting the educational process under Board Policy 03.2325. On April 10, 2009, Dixon sent a letter that contested the termination and requested a due process hearing before an independent hearing officer. Next, on May 14, 2009, the Superintendent sent another letter that was notice of non-renewal of Dixon's employment contract for the upcoming year.
Prior to holding the hearing, the parties initially were unable to agree on an impartial hearing officer for the hearing. Ultimately, Amis appointed Edwina Burke. Burke was a retired Perry County School District employee for thirty-two (32) years. At the time of the hearing, Burke was the interim principal for an elementary school in Leslie County and teaching classes at Hazard Community College. She had been retired since 2006 and previously taught at an elementary school and then served fourteen (14) years as an administrator under Amis. Dixon objected to her appointment because she had been a long-term employee of the school district.
Notwithstanding Dixon's objections to Burke as the hearing officer, the hearing was held on September 30, 2009. Counsel for both sides asked questions of Burke with regard to impartiality or bias. The remainder of the hearing involved substantive testimony regarding Dixon's actions, the investigation of those actions, and the efficacy of his termination as a result of his actions. Following the hearing, Burke issued a written decision. She concluded that Dixon, by attempting to procure uniforms for the students to wear in protest of the closing of Lost Creek, willfully promoted the protest. This action amounted to neglect of duty, misconduct, conduct unbecoming a school employee, and disruption of the educational process. Burke decided that had the uniforms been worn there would have been a real threat to the safety and welfare of the attendees at the game.
Next, Dixon appealed the hearing officer's decision to the Perry Circuit Court. He sought redress for wrongful termination and a violation of due process. On December 7, 2010, the Board filed a motion for summary judgment. And, on December 13, 2010, Dixon filed a motion for judgment on the record. The trial court conducted a hearing on April 4, 2011. Then, on April 27, 2011, it issued findings of fact and conclusions of law, which found that the hearing officer's decision was supported by substantial evidence and affirmed it. Dixon appeals from this decision.
STANDARD OF REVIEW
"The standard of review with regard to a judicial appeal of an administrative decision is limited to determining whether the decision was erroneous as a matter of law." See Kroger Ltd. P'ship I v. Cabinet for Health Serv., Commonwealth of Kentucky, 174 S.W.3d 516, 518 (Ky. App. 2005). Dixon's appeal of the Board's decision is also governed by Kentucky Revised Statutes (KRS) 13B.150. Courts are cautioned that "[t]he position of the circuit court in administrative matters is one of review, not of reinterpretation." Commonwealth, Dep't of Educ. v. Commonwealth, Kentucky Unemployment Ins. Comm'n, 798 S.W.2d 464, 467 (Ky. App. 1990). Therefore, the appellate (circuit) court is not free to consider new or additional evidence, or substitute its judgment as to the credibility of the witnesses and/or the weight of the evidence concerning questions of fact. Mill St. Church of Christ v. Hogan, 785 S.W.2d 263, 266 (Ky. App. 1990).
Thus, when substantial evidence exists in the record to support an administrative agency's factual determination, we have no authority to overturn it. See Kentucky State Racing Comm'n v. Fuller, 481 S.W.2d 298 (Ky. 1972); KRS 13B.150(2)(c). Substantial evidence is defined as "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable [persons]." Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). As noted above, an appellate court's role is to review administrative decisions, not to reinterpret them. Hence, a circuit court must uphold an administrative agency's decision if it is supported by substantial evidence in the record. Johnson v. Galen Health Care, Inc., 39 S.W.3d 828, 833 (Ky. App. 2001). And, our role on appeal from the circuit court "is to determine whether or not the circuit court's findings upholding the [Board's decision] are clearly erroneous." Id. In essence, we must determine whether the circuit court's holding that the Board's decision was not arbitrary is clearly erroneous. Bd. of Educ. of Ashland Sch. Dist. v. Chattin, 376 S.W.2d 693, 697 (Ky. App. 1964), overruled on other grounds by Brady v. Pettit, 586 S.W.2d 29, Ky. 1979. Keeping this standard in mind, we turn to the instant case.
ANALYSIS
On appeal, Dixon argues that termination of his employment based on his behavior of requesting to borrow basketball uniforms and a mascot costume is without legal cause in violation of KRS 161.011. In addition, he maintains that the termination was arbitrary under Kentucky Constitution § 2; that the termination was disproportionate to the charged offense, and therefore, arbitrary; and that his due process rights were violated because the hearing officer who reviewed the Superintendent's decision was biased. Dixon seeks return to his previous employment position, compensatory damages for lost wages and benefits, costs of the action, and a declaratory judgment. The Board counters that substantial evidence supported the Board's determination, that the trial court did not err in its findings nor its conclusions of law, and hence, its decision was not arbitrary.
In Kentucky, a classified employee with four (4) years of continuous service under KRS 161.011 has a protected property interest in that employment. Branham v. May, 428 F. Supp. 2d 668, 673 (E.D. Ky. 2006). And, pursuant to subsection (7) of the same statute, a school district's superintendent has ultimate authority to terminate "a classified employee for incompetency, neglect of duty, insubordination, inefficiency, misconduct, immorality, or other reasonable grounds which are specifically contained in board policy." KRS 161.011(7). Thus, in the case at bar, Dixon falls under the purview of KRS 161.011. Further, the statute provides the superintendent with the authority to terminate him for the above-cited reasons.
Amis terminated Dixon based on the following legal grounds: neglect of duty, misconduct, conduct unbecoming a school employee pursuant to Board Policy 03.27(10) and/or disrupting the educational process under Board Policy 03.2325. Clearly, the superintendent had the authority to terminate an employee who engages in behavior that falls under these categories. Hence, the question becomes whether substantial evidence was presented on the record to support Dixon's termination for these reasons.
The facts were that Dixon asked to borrow basketball uniforms and a mascot costume from school officials at Lost Creek. The purpose behind the request was to allow his grandson and other high school students to wear the outfits to a basketball game between two rival high schools to protest an unpopular decision to close Lost Creek. At previous sporting events between the two schools, there was a history of violence. Further, even after school officials turned down his request to borrow school uniforms, he still obtained a uniform for his grandson from a Lost Creek student. The incident was investigated and verified by several school personnel. Subsequently, the superintendent made the decision to terminate Dixon's employment.
At Dixon's request, a post-termination hearing was held. At this hearing, a number of people testified, including Dixon and the superintendent. The hearing officer, after listening to the testimony, reviewed the written transcript and, after reflection, confirmed the efficacy of the termination decision. Relying on Dixon's admission of his intentions to procure the uniforms, his awareness of previous violence between the schools in the past, and his knowledge that the request was ill-advised, the hearing officer decided that Dixon's actions threatened the safety and health of staff, students, and educators, and further, were disruptive to the educational process. In addition, the hearing officer was aware of the volatility between the two schools. In fact, in his testimony, Dixon admitted that not only was he aware of the tension between the two schools but also that he had seen it firsthand. Based on the evidence, the hearing officer ascertained that Dixon's actions were a violation of board policy, neglect of his duty, misconduct, and conduct unbecoming a school employee. She further noted that regardless of whether Dixon intended to cause trouble, his actions were willful and could have provoked problems at the game. The hearing officer upheld the superintendent's decision to terminate Dixon.
Next, Dixon appealed the decision to the Perry Circuit Court. The trial court, after a hearing, carefully set out its findings of fact and conclusions of law and affirmed the decision of the Board. We conclude that these findings were supported by substantial evidence in the record. And, our review of the conclusions of law indicates no error. As noted, we confirm that substantial evidence was provided on the record to support Dixon's termination and that the Board acted within its statutory authority. And, we are not persuaded by Dixon's claim that the termination was disproportionate to his actions. Substantial evidence was provided on the record that his actions were a neglect of duty, misconduct, conduct unbecoming a school employee pursuant to Board Policy 03.27(10) and disrupted the educational process under Board Policy 03.2325 Further, we are particularly cognizant of the trial court's observation that Dixon misconstrued the standard for establishing that actions disrupt the educational process. It is not necessary to demonstrate that the actions disrupted the educational process but merely that the employee encourages actions that may disrupt the educational process.
Besides suggesting that his behavior did not rise to the level necessary for a termination, Dixon also maintains that the trial court erred when it determined that he was afforded procedural due process during the hearing. In Branham, the federal court observed that '"[m]eaningful' post-termination due process requires that the 'discharged employee be permitted at [sic] attend the hearing, to have the assistance of counsel, to call witnesses and produce evidence on ([his]) own behalf, and to know and have an opportunity to challenge the evidence against ([him]).'" Branham, 428 F. Supp. 2d at 674. (Citations omitted). In this case, Dixon attended the hearing, testified at the hearing, was represented by counsel, called witnesses, provided supportive evidence, and challenged the opposing evidence. We concur with the trial court that he was provided procedural due process at the termination hearing.
Dixon's primary contention is that the hearing officer was biased, and consequently, his right to an impartial hearing was not met. The fundamental requirement of procedural due process is simply that all affected parties be given "the opportunity to be heard 'at a meaningful time and in a meaningful manner.'" Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902, 47 L. Ed. 2d 18 (1976) (internal citation and quotation omitted). As explained by the Kentucky Supreme Court:
Procedural due process in the administrative or legislative setting has widely been understood to encompass "a hearing, the taking and weighing of evidence if such is offered, a finding of fact based upon a consideration of the evidence, the making of an order supported by substantial evidence, and, where the party's constitutional rights are involved, a judicial review of the administrative action." [Citations omitted].Hilltop Basic Res., Inc. v. County of Boone, 180 S.W.3d 464, 469 (Ky. 2005). The particular due process necessary for a post-termination proceeding was elucidated in Branham. And, in fact, neither Hilltop nor Branham cite the "right to an impartial tribunal." But, the Court cautioned in Hilltop that
However, decision makers are not free to be biased or prejudicial when performing nonjudicial functions. To the contrary, any bias or prejudicial conduct which demonstrates "malice, fraud, or corruption" is expressly prohibited as arbitrary. Furthermore, decisions tainted by conflicts of interest or blatant favoritism are also prohibited as arbitrary. [Citations omitted].
Id.
In the case here, Dixon contends that the hearing officer's previous association with the Perry County School Board as both an administrator and a teacher tainted her ability to be impartial. Both sides, however, had an opportunity to examine the hearing officer for bias. Further, she committed to using her best efforts to remain fair. A perusal of her opinion itself indicates the length to which she went to render a fair decision. Moreover, Dixon only insinuated that she was biased. He presented no proof of partiality. Given the standard for impartiality in an administrative proceeding, we concur with the trial court that the hearing officer in this case was both fair and impartial.
CONCLUSION
We have closely examined the record and the law, and find no basis for reversing the Findings of Facts and Conclusions of Law on appeal. Dixon has not established that his termination was without cause, arbitrary, and/or disproportionate to the offense charged. Moreover, the procedure provided comported with the necessary due process requirements. Therefore, the April 27 2011, decision of the Perry Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: J. Follace Fields, II
Carrie C. Mullins
Lexington, Kentucky
BRIEF FOR APPELLEE: Leslie Patterson Vose
Estill D. Banks, II
Erin C. Sammons
Lexington, Kentucky