Opinion
NO. 2017-CA-000417-MR
05-11-2018
SANDRA GUGLIOTTA, INDIVIDUALLY; AND J.N.R., A MINOR, THROUGH HER NEXT FRIEND, SANDRA GUGLIOTTA APPELLANTS v. OLDHAM COUNTY BOARD OF EDUCATION d/b/a THE OLDHAM COUNTY SCHOOLS; WILL WELLS, IN HIS INDIVIDUAL CAPACITY, AND IN HIS OFFICIAL CAPACITY AS THE SUPERINTENDENT OF THE OLDHAM COUNTY SCHOOLS; MICHAEL WILLIAMS, IN HIS INDIVIDUAL CAPACITY, AND IN HIS OFFICIAL CAPACITY AS THE DIRECTOR OF PUPIL PERSONNEL FOR THE OLDHAM COUNTY BOARD OF EDUCATION; JEFF GRIFFIN, IN HIS INDIVIDUAL CAPACITY, AND IN HIS OFFICIAL CAPACITY AS PRINCIPAL, SOUTH OLDHAM HIGH SCHOOL; AND ANN COORSSEN, IN HER INDIVIDUAL CAPACITY, AND IN HER OFFICIAL CAPACITY AS GENERAL COUNSEL FOR THE OLDHAM COUNTY BOARD OF EDUCATION APPELLEES
BRIEF FOR APPELLANT: David Bradley Mour Louisville, Kentucky BRIEF FOR APPELLEES: Aaron John Silletto Prospect, Kentucky
NOT TO BE PUBLISHED APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE KAREN CONRAD, JUDGE
ACTION NO. 15-CI-00621 OPINION
AFFIRMING IN PART, VACATING IN PART, AND REMANDING
** ** ** ** **
BEFORE: COMBS, JONES AND NICKELL, JUDGES. COMBS, JUDGE: Sandra Gugliotta and J.N.R., a minor, by her parent and next friend, appeal from an order of the Oldham Circuit Court that granted summary judgment to: the Oldham County Board of Education and its elected members; Will Wells, in his individual capacity and in his official capacity as the Superintendent of the Oldham County Schools; Michael Williams, in his individual capacity and in his official capacity as the Director of Pupil Personnel for the Oldham County Board of Education; Jeff Griffin, in his individual capacity and in his official capacity as Principal of South Oldham High School; and Ann Coorssen, in her individual capacity and in her official capacity as General Counsel for the Oldham County Board of Education. We affirm in part, vacate in part, and remand.
During the 2014-2015 school year, J.N.R. was a freshman at South Oldham High School, a public school located in Crestwood, Kentucky. She was a member of the school's swim team. She was also a member of the Lakeside Swim Team in Louisville. Students were released from South Oldham High School each afternoon at 3:45. However, Lakeside's swim team practice was scheduled to begin each afternoon at 3:30.
In August 2014, before the school year had begun, Gugliotta contacted Jeff Griffin, the high school's principal, to ask whether J.N.R.'s school schedule could be adjusted to accommodate Lakeside's practice schedule. After some discussion, Gugliotta and Griffin agreed that J.N.R. might cut her study hall (and the school day) short by 45 minutes if she were to report to school for a study hall one hour before the regular school day began.
Dan Orman, the associate superintendent for the county's schools, forwarded a copy of J.N.R.'s proposed schedule by email to Cheri Meadows at the Kentucky Department of Education. Meadows emailed a terse reply that appeared to indicate that the proposal was acceptable. The proposed schedule sent by Orman to Meadows included signature lines for J.N.R.'s parents; the school's counselor; the school's principal; Orman; Meadows; and Michael Williams, the Director of Pupil Personnel for Oldham County Schools. No signed copy of the proposed schedule was tendered to the trial court, however. The proposed schedule provided that the schedule adjustment "is subject to regular review throughout the current school year. . . ."
On September 8, 2014, Superintendent Wells drafted a letter to Gugliotta and her husband. Wells informed Gugliotta and her husband that their request "to have an alternate schedule developed so that your daughter can leave school early to attend swim practice is being denied." Wells indicated that the school system would "maintain our present stance of not developing individual schedules for students so their school day will be changed to accommodate participation in outside of school activities in which they choose to engage." Copies of the letter were also forwarded to the high school's principal and to the assistant superintendent. Gugliotta and J.N.R. had been following the proposed schedule for several weeks by this time. They continued to do so despite the superintendent's express rejection of it. Gugliotta's attorney informed Williams and Superintendent Wells that the family did not intend to abide by the superintendent's decision.
On October 8, 2014, Anne Coorssen, General Counsel for the Oldham County Board of Education, advised Gugliotta that J.N.R. had accumulated excessive absences for leaving school early and that she (Gugliotta) could be referred to court for her child's continuing truancy.
Williams received a report of habitual truancy regarding J.N.R. In response to the report, he mailed two letters to Gugliotta regarding the child's unexcused absences from school. Gugliotta did not respond to either letter.
On November 17, 2014, Williams initiated a criminal complaint against Gugliotta in district court. He alleged that from September 22, 2014, through November 7, 2014, J.N.R. had become a habitual truant. Under the provisions of KRS 530.070(1), Gugliotta was charged with unlawful transaction with a minor in the third degree. Despite the pending criminal charge, J.N.R. continued to follow the proposed alternative schedule for the remainder of the school year. On May 6, 2015, after discussions with the parties, the Oldham County Attorney decided not to continue the prosecution. The charges against Gugliotta were dismissed by the district court with prejudice.
Kentucky Revised Statutes.
On November 16, 2015, Gugliotta and J.N.R. filed a civil action against the school board and other school officials alleging malicious prosecution and abuse of process; intentional infliction of emotional distress; civil conspiracy; negligent supervision; negligence with respect to the enforcement of the Board's truancy regulations; and defamation. The school defendants answered and denied the allegations. They also asserted the defenses of governmental and official immunity. They attached to their answer a copy of the Oldham County Board of Education attendance policy and its school day schedule that required attendance each school day until 3:45. Despite the assertion of the immunity defense, the trial court permitted limited discovery.
On December 31, 2015, the school defendants filed a motion for judgment on the pleadings. They contended that the adoption of a school calendar designating a start and dismissal time and the enforcement of the Commonwealth's compulsory attendance laws are governmental functions. Consequently, they argued that the board, its members, and its employees were entitled to governmental and official immunity as a matter of law. Alternatively, they contended that no set of facts that Gugliotta and/or J.N.R. could prove at trial would entitle them to relief because the laws and regulations regarding student absences had been properly applied by school officials. Finally, they argued that the trial court lacked jurisdiction to consider the claims related to the contents of J.N.R.'s educational record since Gugliotta and J.N.R. had failed to exhaust their administrative remedy.
In an order entered on December 29, 2016, the trial court granted summary judgment to the school board, its members, and the school officials. The trial court concluded that the school board and its members had been performing a governmental function and that they were entitled to governmental immunity in their official and individual capacities with respect to their alleged negligence. The court also concluded that Williams, Wells, Griffin, and Coorssen, in their official capacities, were shielded from liability and the burdens of litigation by governmental immunity. It held that the individual school officials had been acting within their authority and exercising their discretion in good faith. Consequently, the court determined that they were shielded from liability and the burdens of litigation -- in their individual capacities -- by the doctrine of qualified official immunity. Finally, the court concluded that it lacked jurisdiction to consider the claims related to J.N.R.'s school attendance record.
This appeal followed. Because they are dispositive of the case, we consider only the various immunity issues.
Because the trial court considered matters outside the pleadings, the underlying motion was treated as one for summary judgment. CR 12.03. On appeal, we must determine whether the trial court erred by concluding that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. CR 56.03. Whether summary judgment is appropriate is a legal question that involves no factual findings. Id. Consequently, we review the trial court's grant of summary judgment de novo. Coomer v. CSX Transp., Inc., 319 S.W.3d 366 (Ky. 2010).
Kentucky Rules of Civil Procedure. --------
On appeal, Gugliotta and J.N.R. argue that the trial court erred by granting summary judgment. They contend that neither the school board nor the named school officials were entitled to immunity because they were simply required to perform a ministerial act; i.e., to implement the written agreement that permitted J.N.R. to leave school before the end of the school day.
Derived from the traditional doctrine of sovereign immunity, governmental immunity is based, in part, upon the premise that courts should not be called upon to pass judgment on policy decisions made by members of coordinate branches of government in the context of tort actions. See Yanero v. Davis, 65 S.W.3d. 510 (Ky. 2001). Thus, a state agency is entitled to immunity from tort liability to the extent that it is performing a public or governmental function. Id. A state agency is not immune from suit while performing a private or proprietary function. Id. A state agency engages in a private or proprietary function when it participates in a business ordinarily engaged in by private persons or corporations for profit. Id.
Public school boards are considered agencies of the state and enjoy governmental immunity. James v. Wilson, 95 S.W.3d 875 (Ky. App. 2002). Governmental immunity extends to employees of state agencies sued in their official capacities. Autry v. Western Kentucky University, 219 S.W.3d 713 (Ky. 2007).
When sued in tort in their individual capacity, employees of the school board may enjoy qualified official immunity. James v. Wilson, supra. The doctrine of qualified official immunity provides public officers and employees with an affirmative defense for the negligent performance of discretionary acts where the actions are undertaken in good faith and within the scope of the official's authority. Nelson Co. Bd. of Educ. v. Forte 337 S.W.3d 617 (Ky. 2011). However, qualified official immunity does not protect public employees from liability for the negligent performance of ministerial acts. Id. Public employees are not immune from liability and the burdens of litigation where the alleged acts involve an intent to injure. See Yanero, supra.
In all cases, the plaintiff must show the causally related "violation of a constitutional, statutory, or other clearly established right[.]" Yanero, 65 S.W.3d at 523. In order to determine the rights allegedly violated, we must examine the claims asserted by Gugliotta and J.N.R.
First, they alleged malicious prosecution and abuse of process. Gugliotta and J.N.R. claim that the school board and the school officials intentionally misled the Oldham County Attorney by failing to make him aware of a critical fact - the existence of an agreement that permitted J.N.R. to leave school early each day. Next, they alleged intentional infliction of emotional distress and the existence of a civil conspiracy among Wells, Coorssen, Williams, and Griffin to file a false criminal charge against Gugliotta. They also asserted a claim of negligent supervision against the school board and Superintendent Wells for failing to ensure that Griffin, Coorssen, and Williams were properly trained and supervised to enforce the compulsory attendance laws. Next, Gugliotta and J.N.R. claimed that Wells, Griffin, Coorssen, and Williams failed to use reasonable care to enforce the school board's rules regarding truancy. Finally, Gugliotta and J.N.R. claimed that the school board and school officials published oral and written defamatory statements about them concerning truancy.
The defense of qualified official immunity is unavailable against the claim of malicious prosecution. Martin v. O'Daniel, 507 S.W.3d 1 (Ky. 2016). As summarized above, qualified official immunity is available only to officials acting in good faith. In Martin, the Supreme Court of Kentucky observed that to act with malice and to act in good faith are mutually incompatible.
Malice is an essential element of a malicious prosecution claim. Raine v. Drasin, 621 S.W.2d 895 (Ky. 1981). Thus, the defense of qualified official immunity is ineffective and unavailable with respect to a claim of malicious prosecution. Martin, supra. The defense is also unavailable against the claim of abuse of process, which also requires a showing of bad intention. Consequently, the trial court erred by dismissing these claims on the basis of qualified official immunity.
The claims of intentional infliction of emotional distress and civil conspiracy are susceptible to a similar analysis. In order to demonstrate a claim of intentional infliction of emotional distress, the following elements must be proven: (1) the wrongdoer's conduct must be intentional or reckless; (2) the conduct must be outrageous and intolerable in that it offends against generally accepted standards of decency and morality; (3) there must be a causal connection between the wrongdoer's conduct and the emotional distress; and (4) the emotional distress must be severe. Gilbert v. Barkes, 987 S.W.2d 772 (Ky. 1999). Outrageous and intolerable conduct undertaken intentionally or recklessly can never constitute conduct undertaken in good faith. The incompatibility is patent.
In order to prevail on a claim of civil conspiracy, the proponent must show an unlawful/corrupt combination or agreement among the alleged conspirators to engage in some concerted action in order to perpetuate an unlawful act. Montgomery v. Milam, 910 S.W.2d 237 (Ky.1995). An unlawful agreement among corrupt actors to engage in some unlawful thing is incompatible with conduct undertaken in good faith. Consequently, the school officials are not entitled to qualified official immunity from liability with respect to these claims.
With respect to their claims of negligent supervision and negligent enforcement of school policy concerning truancy, Gugliotta and J.N.R. contend that the trial court erred by concluding that the school officials were not required to honor the alternative school-day schedule agreement between Jeff Griffin, the school principal, and J.N.R.'s family. They contend that the school board and Superintendent Wells were negligent by failing to ensure that Griffin, Coorssen, and Williams enforced the agreement; that Wells, Griffin, Coorssen, and Williams failed to use reasonable care to enforce the school board's rules regarding truancy; and that the trial court erred by concluding that they were entitled to assert the defense of immunity. We shall address the separate contentions.
Gugliotta and J.N.R. contend that the school board and Superintendent Wells were negligent by failing to ensure that Griffin, Coorssen, and Williams honored the written agreement concerning the alternative school schedule and that the trial court erred by concluding that they were entitled to immunity. We disagree.
The claim asserted against the school board and Superintendent Wells in his official capacity is barred by principles of governmental immunity because the board of education was performing a governmental (as opposed to a proprietary) function. The Board of Education is charged with adopting "a school calendar. . . that establishes . . . student attendance days[.]" KRS 158.070(2)(d). Children of school age are required to attend school, and the compulsory attendance laws in each school district are to be enforced by a director of pupil personnel under the direction of the local board of education and its superintendent. KRS 159.010(1)(a), 159.130. By directing the enforcement of the compulsory attendance laws, the Oldham County Board of Education was performing a governmental function. Consequently, it was entitled to the protection of governmental immunity. The trial court did not err by concluding that the board could not be sued in tort for negligence in the performance of that function. Nor did it err by concluding that the school board's immunity extended to Superintendent Wells in his official capacity. Additionally, neither the school board nor Superintendent Wells can be held vicariously liable for any alleged negligence of their employees. Public entities and officers are responsible only for their own misfeasance and negligence; they are not responsible for the negligence of those employed by them if they have employed persons of suitable skill. Williams v. Kentucky Dep't of Ed., 113 S.W.3d 145 (Ky. 2003).
With respect to the claim that Wells, Griffin, Coorssen, and Williams failed to use reasonable care to enforce the school board's rules regarding truancy, we are required to examine the doctrine of qualified official immunity. When sued in tort in their individual capacity, employees of the school board may enjoy qualified official immunity. James v. Wilson, supra. Again, the doctrine of qualified official immunity provides public officers and employees with an affirmative defense for the negligent performance of discretionary acts where the actions are undertaken in good faith and within the scope of the official's authority. Nelson Co. Bd. of Educ. v. Forte, 337 S.W.3d 617 (Ky. 2011). Qualified official immunity does not protect public employees from liability for the negligent performance of ministerial acts. Id.
As stated above, negligently performing -- or negligently failing to perform -- a discretionary act cannot give rise to tort liability. Whether qualified immunity extends to the school officials in this case depends upon whether the acts of the various defendants were discretionary or ministerial. A ministerial act is one that the government employee must do "without regard to his or her own judgment or opinion concerning the propriety of the act to be performed." 63C Am. Jur.2d Public Officers and Employees § 318. Discretionary acts encompass the kind of discretion exercised at the planning level of government. "Promulgation of rules is a discretionary function; enforcement of those rules is a ministerial function." Williams v. Kentucky Dept. of Educ., 113 S.W.3d 145, 150 (Ky. 2003).
We are persuaded that the performance of the duty in this case was a ministerial rather than a discretionary function. The school officials were charged only with the enforcement of an already established attendance policy and previously promulgated rules regarding truancy. Consequently, the school officials are not shielded from liability for their alleged negligence pursuant to Williams, supra.
Accordingly, the summary judgments entered in favor of the Oldham County Board of Education and Superintendent Wells in his official capacity are affirmed; the summary judgments entered in favor of Wells, Griffin, Coorssen, and Williams each in his or her individual capacity are vacated; and this case is remanded to the Oldham Circuit Court for additional proceedings.
NICKELL, JUDGE, CONCURS.
JONES, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: David Bradley Mour
Louisville, Kentucky BRIEF FOR APPELLEES: Aaron John Silletto
Prospect, Kentucky