Opinion
NO. 2012-CA-000531-MR
04-11-2014
SANDI GANN APPELLANT v. SIMPSON COUNTY BOARD OF EDUCATION A/K/A SIMPSON COUNTY SCHOOLS APPELLEE
BRIEFS FOR APPELLANT: Matthew J. Baker Bowling Green, Kentucky BRIEF FOR APPELLEE: Mark Thurmond Franklin, Kentucky Regina A. Jackson David W. Anderson Bowling Green, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM SIMPSON CIRCUIT COURT
HONORABLE G. SIDNOR BRODERSON, JUDGE
ACTION NO. 10-CI-00266
OPINION
AFFIRMING
BEFORE: CLAYTON, MOORE AND NICKELL, JUDGES. NICKELL, JUDGE: Sandi Gann is a former employee of the Simpson County Board of Education. She also owns rental property that shares a one-lane alley with Franklin Elementary School. Gann argues she asserted her property rights to use the alley and the Board retaliated against her by not renewing her employment contract. The Board maintains Gann's contract was not renewed due to insubordination, inefficiency, misconduct and other unprofessional conduct wholly unrelated to the alley dispute. On this appeal, Gann challenges the Simpson Circuit Court's opinion and order affirming a special hearing officer's decision in favor of the Board. Having reviewed the record, the briefs and the law, we affirm.
The alley is used by parents to drop off and pick up children attending the school and causes delays for tenants trying to access Gann's property each morning and afternoon. Use of the alley has generated great frustration for parents, Gann, and her tenants. While the Board has evinced a continuing desire to work with Gann to reduce congestion during peak times, significant improvement will not occur until funding becomes available to develop a new traffic pattern.
Gann filed a separate civil action in Simpson Circuit Court regarding the property dispute alleging tort, trespass and reverse condemnation. Gann v. Simpson County Board of Education, Civil Action No. 10-CI-278. Gann has now appealed separately the trial court's decision in that matter to this Court. Gann v. Simpson County Board of Education, Case No. 2013-CA-000656.
FACTS AND PROCEDURAL BACKGROUND
Gann was a classified employee of the Board, having worked as a bus driver and then as a bus monitor. Her tenure was marked by numerous instances of poor judgment, rudeness and bad interpersonal relations with fellow employees and students. Gann observed other school employees and attended classes to learn how to conduct herself appropriately, but her supervisors saw no improvement in her attitude, and in May 2010, chose not to renew her annual employment contract.
Gann challenged the nonrenewal via administrative procedures established by the Board. At Gann's request, a hearing was held on June 29, 2010, with Ray Hammers, a specially appointed hearing officer, presiding. At the hearing, the Board produced testimony from bus driver Tammy McGuffin, whose bus Gann rode as a bus monitor, and Transportation Manager Brian Talley, Gann's direct supervisor. Gann's attorney cross-examined both, but Gann did not testify herself. The only witness called by Gann was Board Superintendent James Flynn.
The Board superintendent may serve as the hearing officer. Board Procedure 3.2711 AP .21. If he is not in a position to be impartial, however, he is to appoint a substitute. Here, Gann requested appointment of an impartial hearing officer. On June 10, 2010, she was notified Hammers, a former Board Superintendent, had been appointed and lodged no objection. In her brief to this Court, Gann repeatedly suggests Hammers was not impartial, but again, did not object to his appointment. Furthermore, no allegation was made in the trial court about Hammers being biased, thus waiving any complaint of bias. A theory of error cannot be raised for the first time on appeal. Fischer v. Fischer, 348 S.W.3d 582, 588 (Ky. 2011).
At the conclusion of the evidence, Hammers ruled in favor of the Board, stating, "the record indicates that the grounds for the nonrenewal of Ms. Gann's employment contract were independent of the incident involving her rental property." Hammers was unconvinced the Board's stated reasons for nonrenewal were a pretext and Gann was really let go because she asserted her property rights. Ultimately, Hammers determined, "there is a sufficient basis in fact for the nonrenewal of the employment of Ms. Sandi Gann for the reasons of insubordination, inefficiency, and other unprofessional conduct."
In evaluating the hearing testimony, Hammers found Gann: criticized as "foolish" Flynn's decision to begin a school day despite inclement weather and then cancel classes while busses were en route; used poor judgment in making derogatory comments that made Amanda Purvis, another driver whose bus she had monitored, uncomfortable; was insubordinate in disregarding McGuffin's directive regarding an incident in which a second grader put silly putty in Gann's hair, and ultimately stated that if allowed to handle the situation herself she would have the child "so scared that she would not want to ride the bus again"; repeatedly initiated conversations with McGuffin about her employment that created a negative work environment, distracted McGuffin while driving, and made her uncomfortable; inappropriately discussed with students Flynn's alleged dislike for her and punishment of her, as well as her receipt of driver pay while working as a monitor; inappropriately commented on employees returning from sick leave; in conversations with McGuffin, "routinely referred" to Flynn and Talley "as an 'asshole' or a 'son of a bitch'"; while monitoring for a substitute driver, engaged in unprofessional conduct by "call[ing] the students liars and [telling] them that if they were lying they would be kicked off the bus for the rest of the year"; acted unprofessionally on January 22, 2010, when she misstated Board policy and used inappropriate tone and demeanor with students as captured on an onboard video; and, engaged in unprofessional conduct by alleging Talley was having an affair with another bus driver and that was the reason she received plum assignments.
Purvis was not called as a witness. At the time of the hearing, she was no longer a Board employee. Her contract was not renewed due to accidents and safety concerns.
When students learned Gann was a former bus driver, they asked why she was no longer driving a route. Gann responded by saying Flynn did not like her and was punishing her, adding "whip me, whip me, put me in chains," which she demonstrated with hand gestures. Gann told the children being a monitor was okay with her because she was drawing the same pay as a driver without having to clean or refuel a bus. McGuffin considered Gann's comments inappropriate for the students to hear—noting their faces turned red—and a "slap in the face" to her personally since she was earning the same pay but doing considerably more work as a driver.
While characterizing the comments as inappropriate, Hammers found they did not constitute "misconduct or other unprofessional conduct as alleged by the School District."
Gann told students she would take them to the school bus garage if they allowed her to miss their stop and told some it was illegal to allow them to exit the bus if they had to cross the road to reach their destination. Neither of these statements correctly reflects Board policy.
While finding none of these facts to have been refuted, Hammers discounted some aspects of the Board's proof. For example, he did not find a parent's complaint about Gann leaving a young boy alone at his home to be compelling proof of unprofessional conduct.
Talley described a written complaint he received from a parent detailing a situation Gann handled poorly as a substitute bus driver. According to the signed complaint, the writer's children alerted her by telephone while riding the bus that two brothers were also riding the bus on April 14, 2010. The older brother had a note indicating he was to be let off at his grandparent's home because no one was at his parent's house. His younger brother had no note so Gann made him get off at his home—despite his tearful pleas to go with his older brother who insisted, along with other children on board the bus, that his sibling not be left alone at their unattended parent's home. After yelling at the busload of children to "shut up," Gann insisted the younger child exit the bus; the child obeyed and Gann drove away. The complaining parent was so distraught she collected the young boy and drove him to his grandparent's home because he was crying and there were no vehicles in the driveway. While Talley acknowledged Gann did not make a mistake in leaving the child at his home, he questioned her poor interaction with the students and her rudeness.
The only witness Gann offered was Flynn, and much of his initial examination focused on the alley dispute which he said began three to four yearsbefore nonrenewal of Gann's employment contract. Flynn stated the Board had tried to relieve alley congestion as best it could since Gann and her husband had expressed concern at a Board meeting. Flynn thought things were going smoothly until 2009, when Gann "verbally accosted" Anita Smith, a school employee who was directing traffic in the alley, and later told two boys to block the alley with their vehicles during afternoon pick-up and not move until police arrived.
Without citation to the record, Gann states in her brief she "was called onto the carpet by her employer almost immediately" after signaling her intent "to exercise her property rights."
Flynn testified the school had installed signage, painted a line on the ground to maintain clear access to Gann's rental property, and instructed staff on managing traffic flow.
Counsel for the Board recognized the rules of evidence were not being applied during this informal hearing, but objected to testimony about this incident because the Board did not list it in the "Statement of Grounds for Nonrenewal."
Parents were agitated by this second incident causing one of them to suggest "a .45" would convince the boys to move.
Flynn testified that as a result of Gann's interaction with Smith and other school staff, concerns about her interpersonal relationships with others, and her unacceptable venting of frustrations, Gann was placed on a "corrective action plan to help her, to give her some skill, some knowledge and understanding of what we expect." Although Gann completed the plan, Flynn thought she had learned nothing because, while
she went through the motions . . . . she did not embrace the knowledge and skills and opportunities that we gave her to improve. You know, she took the courses. She took the classes. But she didn't - she didn't seem to take seriously the learning and understanding of the expectations. And, ultimately, I think that, you know, that's what led to the decision to nonrenew her.When asked why Gann's contract was not renewed, Flynn's uncontradicted answer was,
she was given an opportunity to improve. She hasn't improved. There are issues that - that continued to occur that were unrelated to the property dispute, that the decision was based on. It - all the issues that we based the - ultimately the nonrenewal on, had no direct connection to the property dispute. They were issues that - you know, that [Gann] continues to have over time and not just this property dispute.
Gann appealed to the Simpson Circuit Court which entered an opinion and order on February 22, 2012, holding the hearing officer's decision was based on substantial proof; there was no evidence Gann's contract was not renewed in retaliation for the exercise of her property rights; and the retaliatory discharge claim was "flawed" because Section 1 of the Kentucky Constitution—the sole basis of her claim—does not create an exception to the "terminable-at-will" doctrine. Baker v. Campbell County Bd. of Educ., 180 S.W.3d 479, 483 (Ky. App. 2005). Finding no reason to deem the hearing officer's decision "arbitrary" or "clearly erroneous," the trial court affirmed. This appeal followed.
ANALYSIS
As explained in 500 Associates, Inc. v. Natural Resources and Environmental Protection Cabinet, 204 S.W.3d 121, 131 (Ky. App. 2006), when a circuit court reviews an administrative decision, it engages in a two-part inquiry. First it determines whether the findings of fact are based on substantial evidence—defined as proof "of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable men." Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972) (quoting O'Nan v. Ecklar Moore Express, Inc., 339 S.W.2d 466, 468 (Ky. 1960) (internal citations omitted)). If supported by substantial evidence, the circuit court accepts the findings as true. Second, the circuit court evaluates whether "the administrative agency has applied the correct rule of law to the facts so found." Southern Bell Tel. & Tel. Co. v. Kentucky Unemployment Ins. Commission, 437 S.W.2d 775, 778 (Ky. 1969).
Here, the circuit court affirmed the hearing officer's findings and conclusions. That decision has now been appealed to us. We will affirm absent clear error. 500 Associates, 204 S.W.3d at 131. Upon review of the complete record, we hold the circuit court did not commit clear error in affirming the nonrenewal of Gann's employment contract and therefore affirm.
The decision reached by the hearing officer was not arbitrary as it was based on substantial evidence, was allowed by KRS 16.011(7) and Board procedure 03.2711, and due process was afforded. Com. Transp. Cabinet Dept. of Vehicle Regulation v. Cornell, 796 S.W.2d 591, 594 (Ky. App. 1990). Finally, no conflicting evidence was presented upon which Gann could have prevailed on her claim of retaliatory discharge.
Kentucky Revised Statutes.
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THEREFORE, we affirm the opinion and order entered by the Simpson Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Matthew J. Baker
Bowling Green, Kentucky
BRIEF FOR APPELLEE: Mark Thurmond
Franklin, Kentucky
Regina A. Jackson
David W. Anderson
Bowling Green, Kentucky