Opinion
NO. 2014-CA-000729-MR
01-15-2016
PAUL KORDENBROCK APPELLANT v. RICHARD OLIVER, PHILIP W. PARKER, SKYLA GRIEF, SHAE HOLLIMAN, MICHAEL SPINDLER, CARSON FENTRESS, RANDY WHITE, LADONNA THOMPSON, AND JAMES L. ERWIN APPELLEES
BRIEF FOR APPELLANT: Paul Kordenbrock Pro se Eddyville, Kentucky BRIEF FOR APPELLEE: Brenn O. Combs Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LYON CIRCUIT COURT
HONORABLE CLARENCE A. WOODALL, III, JUDGE
ACTION NO. 14-CI-00017 OPINION
VACATING AND REMANDING BEFORE: CLAYTON, JONES, AND D. LAMBERT, JUDGES. JONES, JUDGE: Acting without the assistance of counsel, Paul Kordenbrock, an inmate at the Kentucky State Penitentiary ("KSP"), appeals from an order of the Lyon Circuit Court dismissing his petition for declaration of rights. Therein, Kordenbrock sought a declaration that various internal memoranda issued by the Kentucky Department of Corrections ("KDOC") concerning inmate pay were void pursuant to KRS 13A.130. Kordenbrock also alleged various violations of his state and federal constitutional rights and sought a myriad of other relief.
Kentucky Revised Statutes.
The trial court dismissed Kordenbrock's petition on the basis that he had not alleged a cognizable state or federal constitutional right to pay increases in the prison. However, the trial court wholly failed to address Kordenbrock's primary contention that the KDOC's internal memoranda were void for failure to comply with KRS 13A.130.
After having carefully reviewed the record, we have concluded that we must vacate and remand to the trial court. While Kordenbrock may not be entitled to all the relief he seeks, we believe that he set forth a prima facie case regarding the enforceability of the memorandum in light of KRS 13A.130.
I. FACTS AND PROCEDURAL BACKGROUND
Kordenbrock is a prisoner currently detained at KSP in Eddyville, Kentucky. During the relevant time period, Korenbrock was assigned to work in the prison garment factory making uniforms. He alleges that his start date was April 6, 2012, and his starting rate of pay was $0.45 per hour. According to Kordenbrock, his pay is being determined in accordance with internal memoranda issued by the KDOC in 2011-2012. Korenbrock maintains that the memoranda are void because they contradict existing administrative policies and procedures and were not promulgated pursuant to KRS 13A.130.
KRS 197.070(1) commands the Department of Corrections to provide employment for all prisoners in the penitentiaries and authorizes it to exhaust every resource at its command to provide employment for all prisoners in its custody.
On November 28, 2011, Warden Parker issued a Memorandum on the subject of "Inmate Pay in Industries." This memorandum states:
1. Pay raises above .45 cents per hour is frozen. Starting pay is not 0.45 cents but will remain frozen indefinitely.
2. "Lead man" or key positions, duties and pay are eliminated; however, the inmates currently at Lead man pay of .95 cents are grandfathered.
. . . .
4. Inmates will be paid actual hours and days worked, which is currently 6 hours or less. Inmates will not be paid for holidays.
5. Membership on the Grievance Committee is voluntary and, unpaid, however, time off from work will be granted.
On January 4, 2012, the Department of Corrections issued an Official Memorandum addressed to "All KCI Inmate Employees" on the subject of "Inmate Pay" signed from James Erwin, Deputy Commissioner of the Department of Corrections. This memorandum states:
Similar to other business entities, revenue for the Kentucky Correctional Industries has been adversely impacted by current economic trends. Correctional Industries is a vital part of Adult Institutions and there is a concentrated effort to both expand current operations and add new production lines.
Given the current fiscal situation, I regret to inform you that it is necessary for KCI to immediately implement a temporary wage freeze on inmate employment throughout all operations. It should be noted that there
are no plans to implement cuts on inmate employee wages. KCI will permit pay raises from the minimum starting level up to the 45 cent threshold, but will temporarily suspend wage increases beyond that threshold.
To lessen the impact of the temporary wage freeze, each Warden has identified basic generic hygiene items that will be sold in the Commissary for a reduced price.
KCI will continue to monitor the financial situation closely in order to lift this temporary freeze as soon as possible. KCI management continues to search for cost-savings initiatives within current operations so as to return to wage progression.
On April 6, 2012, Kordenbrock started working in the Garment Plant. He was informed that his pay would be $0.45 per hour because the Department of Corrections had frozen the pay rate at that level, prior to Kordenbrock starting his position in the Garment Plant. On September 11, 2013, Kordenbrock questioned the KSP Garment Plant Supervisor, Richard Oliver, about whether he would be receiving his quarterly raise of $0.10 according to the policy. Mr. Oliver informed Kordenbrock that although according to policy he may be entitled to his raise, the Commissioner's Office would not allow it to take place due to the pay freeze in effect.
On September 12, 2013, Kordenbrock filed an Institutional Grievance asking to be given his raises due and for the pay freeze to be lifted. Grievance Coordinator, Ms. Skyla Grief, stated that Correctional Policies and Procedures, CPP, Institutional Policies and Procedures, and Correctional Policies are not administrative regulations and that intradepartmental memoranda dealing with the pay freeze was permissible. The grievance committee agreed with the informal resolution offered by Skyla Grief and further recommended that the issue be dealt with at a higher level.
KSP Warden, Randy White, advised Kordenbrock that the pay freeze was not implemented by the institution and therefore it cannot be lifted at this level. At the Commissioner's review stage, in her response, Commissioner LaDonna Thompson conceded that her office did indeed issue the January 2012 intradepartmental memorandum implementing the pay freeze for Industries workers and asserted that her office is allowed to do this.
This response is conflicted by the fact that former Warden, Phillip W. Parker, was the first to implement a pay freeze in his November 28, 2011 memorandum.
Kordenbrock cites that had he received his wage increases on a quarterly basis, he would have received four wage increases by September 1, 2013, and his hourly wage would be $0.85, which is the highest amount possible unless he would have acquired a lead or key position with the plant. Kordenbrock exhausted his only administrative remedy, namely the institutional grievance, and received no relief.
On February 7, 2014, Kordenbrock filed a Petition for Declaration of Rights in the Lyon Circuit Court against various Kentucky Department of Corrections personnel employed at the Kentucky State Penitentiary. The Petition asserted that he had a right to a quarterly pay raise of $0.10 per hour, pursuant to Kentucky State Penitentiary Institutional Policy and Procedure ("IPP") 16-05-01 and Correctional Industries Policy and Procedure ("CI") 05-01-04.
Kordenbrock argued that the KDOC "illegally" amended 501 KAR 6:160 through intradepartmental memoranda, thus violating provisions found in KRS Chapter 13 and making the amendment null, void and unenforceable. Kordenbrock argued that all inmate workers enjoyed a protected property interest in receiving their pay and pay raises and no due process was ever offered by the KDOC when the pay freeze was put into effect. Kordenbrock also argued the KDOC ultimately violated the Non-delegation Doctrine.
Kentucky Administrative Regulations. --------
On March 19, 2014, the Appellees filed a motion to dismiss for failure to state a claim upon which relief could be granted. On April 18, 2013, the Lyon Circuit Court entered an Order dismissing the petition for failure to state a claim upon which relief can be granted. This appeal followed.
II. STANDARD OF REVIEW
A petition for declaratory judgment pursuant to KRS 418.040 has become the vehicle, whenever Habeas Corpus proceedings are inappropriate, whereby inmates may seek review of their disputes with the Corrections Department. Polsgrove v. Kentucky Bureau of Corrections, 559 S.W.2d 736 (Ky. 1977); Graham v. O'Dea, 876 S.W.2d 621 (Ky. App. 1994).
KRS 418.040 provides:
In any action in a court of record of this Commonwealth having general jurisdiction wherein it is made to appear that an actual controversy exists, the plaintiff may ask for a declaration of rights, either alone or with other relief;
and the court may make a binding declaration of rights, whether or not consequential relief is or could be asked.
In order to state a claim under KRS 418.040, Appellant must show "that an actual controversy exists." Foley v. Commonwealth, 306 S.W.3d 28, 31 (Ky. 2010). "An actual controversy for purposes of the declaratory judgment statute, requires a controversy over present rights, duties, and liabilities; it does not involve a question which is merely hypothetical or an answer which is no more than an advisory opinion." Barnett v. Reynolds, 817 S.W.2d 439 441 (Ky. 1991) (citing Dravo v. Liberty Nat'l Bank & Trust Co., 267 S.W.2d 95 (Ky. 1954)).
III. ANALYSIS
Kordenbrock contends that the wage freeze was unenforceable because it was not properly adopted as an administrative regulation in accordance with Kentucky's Administrative Procedure Act. Kordenbrock argues that the KDOC amended 501 KAR 6:160 through intradepartmental memoranda, thus violating provisions found in KRS Chapter 13 and making the amendment null, void and unenforceable.
The general matters for which an administrative body in the Executive Branch of our government, such as the Department of Corrections, must adopt administrative regulations are identified in KRS 13A.100 entitled "Matters Which Shall Be Prescribed by Administrative Regulations." KRS 13A.130 limits the means by which an administrative body may act and the actions it may take. Specifically, KRS 13A.130(1) prohibits an administrative body from modifying, expanding upon, or limiting a statute or administrative regulation via internal policy, memorandum or other action. If a memorandum or internal policy or some other action of an administrative body violates the letter or spirit of KRS 13A.130, such a measure or action is "null, void, and unenforceable." KRS 13A.130(2).
The KDOC is clearly "empowered to promulgate administrative regulations," KRS 13A.100, as reflected in numerous statutes where the Department itself or through its head, the Secretary of the Justice and Public Safety Cabinet, is specifically directed to adopt administrative regulations. KRS 197.070(1) requires the Department of Corrections to provide employment for all prisoners confined to penitentiaries. KRS 197.110(4) directs the Department to promulgate administrative regulations regarding the amount and manner of payment to prisoners for their labor. The issue is whether the intradepartmental memoranda issued by the Department of Corrections implementing a wage freeze on inmate pay violated KRS 13A.130(2).
To support his claim, Kordenbrock cites to 501 KAR 6:160, the Kentucky Administrative Regulation that incorporates Correctional Industries Policy 05-01-04 and Kentucky State Penitentiary Institutional Policy and Procedure 19-05-01. These policies both discuss payment of correctional industries workers pay and pay raises.
CI 05-01-04 states:
5. (d) Upon successful completion of their probationary and training period, inmates shall receive a $0.10 per hour pay increase except that "work for time" credit inmates shall receive a $0.05 per hour increase.
. . . .
9. Inmate employee raises shall be limited to $0.10 per quarter except that "work for time credit" inmates shall be limited to $0.05 per quarter. Quarterly pay increase shall be figured from the date the inmate completes the probationary period.
KSP 19-05-01 states:
f. The beginning rate of pay for an inmate worker shall be $0.25 per hour and the maximum base rate shall be $0.85 per hour. An additional $0.10 per hour may be paid to key positions.
g. A raise shall be limited to $0.10 per increase on a quarterly basis calculated from the starting date.
After careful review, we find that both the November 28, 2011, and January 4, 2012, Memoranda specifically contradict the language in the above policies. The memoranda at issue explain that the Department of Corrections has frozen inmate pay at $0.45 per hour, so that inmate workers are not given a raise above that amount during the proscribed wage freeze. The November 28, 2011, Memo from Warden Parker specifically stated that "pay raises above .45 cents per hour is frozen. Starting pay is not 0.45 cents but will remain frozen indefinitely." The January 4, 2012, Memorandum signed from Deputy Commissioner James Erwin stated,
Given the Current fiscal situation, I regret to inform you that it is necessary for KCI to immediately implement a temporary wage freeze on inmate employment throughout all operations. It should be noted that there are no plans to implement cuts on inmate employee wages. KCI will permit pay raises from the minimum starting level up to the 45 cent threshold, but, will temporarily suspend wage increases beyond that threshold.Because the language in these internal memoranda is at variance with the language of the policies, it seems the internal memoranda may have attempted to alter the policies under 501 KAR 6:010 in violation of KRS 13A.130.
While we recognize the trial court's concern about whether an inmate has a "right" to earn wages, and whether the statutory language created a "right" for them, we believe the real issue here is not whether the inmates have a right to the wages, but whether the KDOC took appropriate measures to implement a wage freeze in accordance with KRS 13A.130. Our review of the record reveals that the trial court did not make any findings or even cite to KRS 13A.130 in its decision. Because the trial court did not address this issue under KRS 13A, and the record in this case is very sparse, we are not presented with enough information to decide whether the memoranda complied with both statutory and administrative law. As such, we must remand this case for further proceedings consistent with this opinion. Nothing in our opinion should be read as authorizing the circuit court to issue all, or even a part of, the relief requested by Appellant. We do believe, however, that Appellant raised a prima facie issue as to whether the internal memoranda are valid under KRS 13A.130. The circuit court failed to address this issue. Accordingly, we must vacate and remand.
IV. CONCLUSION
For the foregoing reasons, the Order of the Lyon Circuit Court is vacated and this case is remanded for proceedings consistent with this opinion, including a determination by the circuit court of whether the internal memoranda are null and void as having been issued in contradiction of KRS 13A.130.
ALL CONCUR. BRIEF FOR APPELLANT: Paul Kordenbrock
Pro se
Eddyville, Kentucky BRIEF FOR APPELLEE: Brenn O. Combs
Frankfort, Kentucky