Opinion
NO. 2012-CA-000028-MR NO. 2012-CA-000118-MR
05-03-2013
JUSTICE AND PUBLIC SAFETY CABINET, DEPARTMENT OF CORRECTIONS, J. MICHAEL BROWN, SECRETARY, APPOINTING AUTHORITY APPELLANT v. KENTUCKY PERSONNEL BOARD AND HEATHER BLACKBURN APPELLEES HEATHER BLACKBURN CROSS-APPELLANT v. JUSTICE AND PUBLIC SAFETY CABINET; J. MICHAEL BROWN, APPOINTING AUTHORITY; AND COMMONWEALTH OF KENTUCKY PERSONNEL BOARD CROSS-APPELLEES
BRIEFS FOR APPELLANT/CROSS- APPELLEE JUSTICE AND PUBLIC SAFETY CABINET, DEPARTMENT OF CORRECTIONS: Angela E. Cordery Frankfort, Kentucky BRIEF FOR APPELLEE/CROSS- APPELLEE KENTUCKY PERSONNEL BOARD: Boyce Andrew Crocker Frankfort, Kentucky BRIEFS FOR APPELLEE/CROSS- APPELLANT HEATHER BLACKBURN: John Frith Stewart Crestwood, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 10-CI-01122
CROSS-APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 10-CI-01122
OPINION
AFFIRMING
BEFORE: CLAYTON, KELLER, AND THOMPSON, JUDGES. THOMPSON, JUDGE: The Justice and Public Safety Cabinet, Department of Corrections (DOC) appeals an opinion and order of the Franklin Circuit Court affirming a final order of the Kentucky Personnel Board reversing the termination of Heather Blackburn from her employment with the DOC and ordering a thirty-day suspension. Heather filed a cross-appeal arguing that the portion of the court's opinion and order affirming the Board's decision to alter her termination to a thirty-day suspension was erroneous because her termination violated her right to free speech.
Judge Michelle M. Keller concurred in result only in this opinion prior to her appointment to the Kentucky Supreme Court. Release of this opinion was delayed by administrative handling.
Heather was terminated by the DOC on June 12, 2009. Her termination letter stated that she was discharged because she emailed four representatives of the American Federation of State, County, and Municipal Employees, a correctional officer in Illinois, her brother, and a newspaper reporter in Glasgow, Kentucky, expressing her opinion regarding a directive that restricted officer's from carrying on-duty weapons in some courtrooms and in restaurants during lunch, officers sharing body armor and a fire bombing of a probation and parole office in Glasgow. The email was generated on the Kentucky email server. Heather attached a portion of a Corrections Policies and Procedures (CPP) 9.7 marked as "secured" and containing a "SECURE POLICY" watermark.
On June 10, 2009, Heather was notified that she was terminated from her probation and parole officer position. She appealed to the Kentucky Personnel Board alleging that she was terminated as a result of seeking union assistance regarding her working conditions, her association and support of her certified employee organization, and for exercising her constitutional right to free speech and association.
At the hearing, the DOC introduced evidence, including its CPP, stating that secured policies and procedures shall not be accessible to the public or an inmate and that Heather signed an employee confidentiality and security agreement. Further, it relied on CPP 3.1 that provides any release of confidential information without the prior consent of the appropriate authority may be grounds for disciplinary action.
Heather testified that she was not aware that CPP 9.7 was confidential and introduced copies of other documents she received identified as secure but that did not contain the secured watermark. She also introduced evidence that certain computer readers were not capable of reproducing the watermark.
The hearing officer concluded that the DOC established a violation of its policy regarding confidentiality but did not establish that Heather committed the violation intentionally or deliberately. The hearing officer recommended that Heather be reinstated to her previous position and awarded lost pay and benefits but recommended that she be suspended from duty and pay for thirty days. The hearing officer did not make any findings regarding whether Heather was dismissed for exercising her right to free speech and association. After exceptions were filed, the hearing officer issued a supplement to the recommended order concluding that Heather had not met her burden to establish her constitutional violation claim. On June 17, 2010, the Board issued an order sustaining the hearing officer's recommended order. After the Franklin Circuit Court affirmed, this appeal and cross-appeal followed.
An administrative agency's decision must be affirmed unless the agency acted arbitrarily, outside its authority or applied an incorrect rule of law. Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 300-301 (Ky. 1972). A decision of an administrative agency is arbitrary if there is an absence of substantial evidence to support the agency's action. Stallins v. City of Madisonville, 707 S.W.2d 349, 351 (Ky.App. 1986). Addressing the Board's authority to order an employee's suspension rather than termination, the Court in Hughes v. Kentucky Horse Racing Authority, 179 S.W.3d 865, 873 (Ky.App. 2004), recited the applicable law:
In the final analysis, KRS 18A.095(23)(c) vests the Personnel Board with the exclusive authority, if it finds that the action taken by the appointing authority was excessive or erroneous in view of all the surrounding(internal quotations, brackets, and footnote omitted).
circumstances, to direct the appointing authority to alter, modify, or rescind the disciplinary action.
In this case, the Board was the ultimate trier of fact. The trier of fact is afforded great latitude in its evaluation of the evidence heard and the credibility of the witnesses appearing before it. Fuller, 481 S.W.2d at 308.
Heather testified that she was unaware that the matters discussed in her emails were confidential and that a secured watermark does not necessarily appear on a transmitted document. Under the circumstances, the Board concluded that Heather's termination was an excessive punishment. Because there was substantial evidence in the record to support the Board's decision, the circuit court did not err by affirming the Board's final order reinstating Heather.
Utilizing the same standard of review, we address Heather's cross-appeal. She alleges that the Board erred when it ordered her suspended for thirty days because when she transmitted the emails, she was exercising her right to free speech. She relies on the United States Supreme Court's decision in Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968), where the Court held that a public employee does not relinquish the rights they would otherwise enjoy as citizens to comment on matters of public interest. However, as pointed out in Commonwealth of Kentucky-Transportation Cabinet v. Whitley, 977 S.W.2d 920, 922 (Ky. 1998), the Court did not "grant blanket protection to all employee criticism." If the particular speech addresses a matter of public concern, a balancing test must be applied weighing "the interest of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public service it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. at 1734-1735.
Despite the holding in Pickering, "[w]hen a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom." Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 1958, 164 L.Ed.2d 689 (2006). The Supreme Court further held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 421, 126 S.Ct. at 1960.
Although the Board found that Heather's statements were related to concerns about her safety, and to the safety of her fellow probation and parole officers and the public, it concluded that her suspension for violating the confidentiality policies of the DOC warranted a thirty-day suspension. Under the applicable standard of review, there is no basis to reverse the Board's conclusion. Using the state email system while on duty, Heather disseminated secured information regarding the DOC's policies including when officer's were unarmed. The internal security procedures of the DOC serve the substantial interest of the DOC in protecting its officers.
Based on the forgoing, the opinion and order of the Franklin Circuit Court is affirmed.
CLAYTON, JUDGE, CONCURS.
KELLER, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT/CROSS-
APPELLEE JUSTICE AND PUBLIC
SAFETY CABINET, DEPARTMENT
OF CORRECTIONS:
Angela E. Cordery
Frankfort, Kentucky
BRIEF FOR APPELLEE/CROSS-
APPELLEE KENTUCKY
PERSONNEL BOARD:
Boyce Andrew Crocker
Frankfort, Kentucky
BRIEFS FOR APPELLEE/CROSS-
APPELLANT HEATHER
BLACKBURN:
John Frith Stewart
Crestwood, Kentucky