Opinion
Civil Action No. 3:98CV-711-S
February 5, 1999.
MEMORANDUM OPINION
This matter is before the court on motion of the defendants, Commonwealth of Kentucky Cabinet for Health Services and John Morse, Secretary of the Cabinet for Health Services, to dismiss the action as against them.
In his complaint, filed in the Jefferson County, Kentucky Circuit Court and removed to this court, the plaintiff, Robert D. Glass ("Glass"), names as defendants the Kentucky Cabinet for Health Services ("the Cabinet"), the Kentucky Developmental Disabilities Council ("the Council"), and John Morse, in his official capacity as Secretary of the Cabinet ("Morse").
The facts pertinent to the motion to dismiss appear to be undisputed. Glass was hired by the Council as its Executive Director on October 6, 1996. He served in that capacity until July 28, 1998 when he was placed on administrative leave pending termination of his contract. On August 3, 1998 Glass' employment was terminated. In a three count complaint, he alleges breach of contract, violation of KRS 61.102 (the Kentucky "whistleblower" statute), and violation of his rights under the Kentucky and United States constitutions.
The sole issue before the court on this motion to dismiss is whether Glass has stated a claim for relief against Morse and the Cabinet for his alleged wrongful discharge from his position as Executive Director of the Council. Morse and the Cabinet contend that the hiring and firing of Glass was done by the Council under its independent authority. They state that the Cabinet has only administrative responsibilities in connection with the Council. Therefore, they assert that there can be no cognizable claim against them in connection with the discharge of Glass.
In paragraph four of the complaint, Glass identifies the Cabinet and Morse, and states that "[t]he Health Services Cabinet directed by Secretary John Morse, has the responsibility of operating public health, Medicaid, and Mental Health/Mental Retardation programs in the Commonwealth." This is the only specific reference to the Cabinet and Morse in the complaint. The Cabinet and Morse are included as "defendants" generally in other allegations of the complaint. Glass' response to the motion to dismiss makes clear his contention that the Cabinet and Morse can be held liable for his discharge as a result of purported "oversight authority" over the activities of the Council.
Both the motion to dismiss and the response to it make reference to matters outside the pleadings, thus requiring that this court treat the matter, as directed by F.R.Civ.P. 12(b), as a motion for F.R.Civ.P. 56 summary judgment.
A party moving for summary judgment has the burden of showing that there are no genuine issues of fact and that the movant is entitled to summary judgment as a matter of law. Adickes v. S.H. Kress Co., 398 U.S. 144, 151-60, 90 S. Ct. 1598, 16 L. Ed. 2d 142 (1970); Felix v. Young, 536 F.2d 1126, 1134 (6th Cir. 1976). Not every factual dispute between the parties will prevent summary judgment. The disputed facts must be material. They must be facts which, under the substantive law governing the issue, might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2510 (1986). The dispute must also be genuine. The facts must be such that if they were proven at trial, a reasonable jury could return a verdict for the non-moving party. Id. at 2510. The disputed issue does not have to be resolved conclusively in favor of the non-moving party, but that party is required to present some significant probative evidence which makes it necessary to resolve the parties' differing versions of the dispute at trial. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89 (1968). The evidence must be construed in a light most favorable to the party opposing the motion. Bohn Aluminum Brass Corp. v. Storm King Corp., 303 F.2d 425 (6th Cir. 1962).
The Council was created in accordance with the provisions of Title 42 United States Code Subchapter II — Federal Assistance to State Developmental Disabilities Councils, 42 U.S.C. § 6021 et seq. Section 6024(c)(9) states:
A Council shall, consistent with State law, recruit and hire a Director of the Council, should the position of Director become vacant, and supervise and annually evaluate the Director. The Director shall hire, supervise, and annually evaluate the staff of the Council. Council recruitment and hiring of staff shall be consistent with Federal and State nondiscrimination laws. Dismissal of personnel shall be consistent with State law and personnel policies.
The subchapter provides for the designation of a state agency to "provide support to the Council." 42 U.S.C. § 6024(d)(1). The Cabinet is the designated state agency for the Kentucky Council. The role of the designated agency is clearly delineated in 42 U.S.C. § 6024(d). In pertinent part, the subchapter delineates the designated state agency's responsibilities as (1) support services, (2) fiscal duties in the nature of accounting and disbursement of funds, (3) maintenance of records and financial reports, (4) provision of non-federal share, (5) assistance in obtaining appropriate assurances, and (6) agreement in a memorandum of understanding delineating its roles and responsibilities. See 42 U.S.C. § 6024(d)(3)(A)-(F).
42 U.S.C. § 6024(c)(10) and 6024(d)(2)(B)(ii) make it clear that the Council and its designated state agency function independently of one another. Section 6024(c)(10), Criteria for continued designation, requires that the Governor or legislature make "an independent assessment that the designation of such agency shall not interfere with the budget, personnel, priorities, or other action of the Council, and the ability of the Council to serve as an advocate for individuals with developmental disabilities." In the subsections of § 6024 which relate to Council responsibilities, subsection 10 states that "[t]he staff and other personnel, while working for the Council, shall be responsible solely for assisting the Council in carrying out its duties under this subchapter and shall not be assigned duties by the designated State agency or any other agency or office of the State." We find nothing in the 1998 Kentucky Acts to conflict with the federal law.
Consistent with the federal statutes, the July 14, 1998 executive order 98-892 signed by Governor Paul Patton provides a nearly verbatim recitation of the above-quoted 42 U.S.C. § 6024 (c)(9) which directs that the Council has the authority over the staffing of the position of Director. The Intra-Cabinet Memorandum of Understanding entered into, pursuant to federal statute, between the Council and the Cabinet states that
The [Council] shall have the ability to hire and fire the Executive Director in accordance with written procedures developed by the [Council] based on standard and customary personnel policies . . . The [Council], through the Executive Committee, shall be responsible for hiring, supervising and evaluating the Executive Director of the [Council] in compliance with state personnel rules . . .
Memorandum of Understanding, ¶ E.1 and 6.
Glass makes the general statements that "[t]he Defendant Cabinet and the Secretary exercise the role of employer of the Executive Director of the Kentucky Developmental Disabilities Council," and that "the Cabinet exercises oversight over Council Business." Response to Motion to Dismiss, pgs. 2, 3. In support of these broad brush assertions, Glass notes that organizationally, the Kentucky legislature created the Council "within" the Cabinet, and emphasizes that personal service contracts must be memorialized on a Proof of Necessity form and bear a Cabinet Identifier number. These items do not contradict the clear evidence that once created, the Council performs its responsibilities independently, with the Cabinet providing support consistent with specific federal and state legislation. Again no argument has been made that the Cabinet or Morse acted themselves, but rather that they are liable as affiliates of the Council. We have been shown no legal basis for such a contention.
We conclude that no genuine issue of material fact exists with respect to the claims against the Cabinet and Secretary Morse, and they are entitled to summary judgment as to them as a matter of law. A separate order will be entered herein this date in accordance with this opinion.