Opinion
NO. 2015-CA-001572-MR
01-13-2017
JOSEPH MAJOR APPELLANT v. LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT; LOUISVILLE/JEFFERSON COUNTY AIR POLLUTION CONTROL DISTRICT; LOUISVILLE METRO MERIT BOARD; AND KELLY WATSON APPELLEES
BRIEFS FOR APPELLANT: Philip C. Kimball Louisville, Kentucky BRIEF FOR APPELLEE LOUISVILLE METRO MERIT BOARD: Mark W. Dobbins Sandra F. Keene Louisville, Kentucky BRIEF FOR APPELLEES LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT, LOUISVILLE/JEFFERSON COUNTY AIR POLLUTION CONTROL DISTRICT, AND KELLY WATSON: Michael J. O'Connell County Attorney Walter A. Sholar Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN BAILEY SMITH, JUDGE
ACTION NO. 14-CI-004539 OPINION
AFFIRMING
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BEFORE: D. LAMBERT, STUMBO AND THOMPSON, JUDGES. STUMBO, JUDGE: Joseph Major appeals from an order of the Jefferson Circuit Court which affirmed the Louisville Metro Merit Board's decision sustaining his layoff from the Louisville Air Pollution Control District (APCD). Major argues that his layoff was in violation of due process and an arbitrary act. We find no error and affirm.
This agency is referred to as both the Air Pollution Control District and Air Pollution Control Board. Mr. Major refers to it as the Air Pollution Control District and it is listed as such in the notice of appeal; therefore, we will use that designation. --------
Major began working for the APCD in 1988. The APCD enforces all federal, state, and local clean air laws and regulations throughout Jefferson County. It also monitors the air pollution in the area using seven air monitoring stations located throughout the county. In 2013, the Kentucky Division of Air Quality noted problems with the APCD. The Federal Environmental Protection Agency also found deficiencies in the administrative and monitoring capabilities of the APCD. The state and federal environmental agencies threatened to suspend the APCD's authority to monitor the air pollution in the Louisville Metro area unless these deficiencies were rectified.
Louisville Mayor Greg Fischer then ordered a complete examination of the APCD and hired two consulting firms to conduct the examination and make recommendations. The reports submitted by the consultants set forth many problems and solutions. One such problem was that the air monitoring stations were not networked together. The consultants suggested networking the stations so that they could be monitored from a central location. In order to accomplish this, it was recommended that the position of Information System Analyst should include more experience with network design. In order to implement the recommendations of the consultants, the APCD underwent a reorganization. Due to this, many employees were terminated, but invited to apply for all available positions for which they were qualified.
At the time of his termination, Major was employed as an Information System Analyst. He was one of two such analysts at the APCD. As part of the reorganization, the APCD and Metro Government Human Resources Department altered the job description of the Information System Analyst to include the following minimum required skills: "[k]nowledge and skill with network design, router and switches, load balances and firewall, IP addressing, protocol troubleshooting or capacity planning in a client/server environment." When Major was terminated from his employment, he re-applied for the Information System Analyst position, but because he did not have any skills relating to the new networking requirements, he was not interviewed for the position. Major applied to for other positions, but was ultimately rejected for those as well.
On April 1, 2014, Major received a letter stating he would be laid off effective May 2, 2014. This was "due to the reorganization of the department[.]" Major appealed his termination to the Louisville Metro Government Merit Board. The Board held a hearing on July 18, 2014. It affirmed the APCD's layoff of Major by a vote of 5 to 1. Major then filed a petition for judicial review. The Jefferson Circuit Court dismissed his petition on September 23, 2015, by finding that the "Merit Board relied on substantial evidence to uphold Mr. Major's layoff, and did not violate Mr. Major's constitutional rights in doing so." This appeal followed.
"An administrative agency is prohibited from acting in an arbitrary manner by § 2 of the Kentucky Constitution." Bunch v. Personnel Bd., Commonwealth of Kentucky, 719 S.W.2d 8, 10 (Ky. App. 1986) (citing Pritchett v. Marshall, 375 S.W.2d 253 (Ky. 1964)). "[J]udicial review of administrative action is concerned with the question of arbitrariness." Am. Beauty Homes Corp. v. Louisville & Jefferson Cty. Planning & Zoning Comm'n, 379 S.W.2d 450, 456 (Ky. 1964). The scope of this judicial review extends to three fundamental grounds: "(1) action in excess of granted powers, (2) lack of procedural due process, and (3) lack of substantial evidentiary support[.]" Id. This Court's standard of review for an administrative adjudicatory decision is the clearly erroneous standard. Stallins v. City of Madisonville, 707 S.W.2d 349, 351 (Ky. App. 1986). A decision is clearly erroneous if it is not supported by substantial evidence. Id.
Substantial evidence is defined as evidence, taken alone or in light of all the evidence, that has sufficient probative value to induce conviction in the minds of reasonable people. If there is substantial evidence to support the agency's findings, a court must defer to that finding even though there is evidence to the contrary. A court may not substitute its opinion as to the credibility of the witnesses, the weight given the evidence, or the inferences to be drawn from the evidence. A court's function in administrative matters is one of review, not reinterpretation.Thompson v. Kentucky Unemployment Ins. Comm'n, 85 S.W.3d 621, 624 (Ky. App. 2002). "[A] reviewing court, whether it be one of the circuit courts, the Court of Appeals, or [the Kentucky Supreme Court], should refrain from reversing or overturning an administrative agency's decision simply because it does not agree with the agency's wisdom." Kentucky Unemployment Ins. Comm'n v. Landmark Community Newspapers of Kentucky, Inc., 91 S.W.3d 575, 582 (Ky. 2002) (citation omitted).
Major's first argument on appeal is that his layoff was arbitrary and violated due process because the term "reorganization" is too vague. Metro Government Personnel Policy §18.2(1) states that any Metro government agency may "reduce the total number of its employees through layoff...due to lack of funds, reorganization, or reduction in work." Also, §34.149(D) of the Metro Ordinances states that the Metro government may "determine classifications to be reduced or eliminated when due to lack of work or reorganization it becomes necessary to lay off employees." It is clear from these policies that the APCD was within its rights to terminate Major's employment if it underwent a reorganization, but Major claims the term reorganization is not defined in any statute, ordinance, or policy related to the Louisville/Jefferson County government and is too vague to satisfy due process.
Major is correct that the term "reorganization" is not defined in the ordinances and policies as it relates to employment, but is the term so vague as to violate due process?
"Emanat[ing] from the due process provisions of the United States and Kentucky Constitutions[,]" the void-for-vagueness doctrine targets the same ill as review of agency action: arbitrariness. Requiring a statute to provide "fair notice of prohibited conduct and contain
reasonably clear guidelines[,]" thwarts "arbitrary and discriminatory enforcement." More specifically, "[a] statute is unconstitutionally vague if those individuals who are affected by it cannot reasonably understand what the statute requires."Curd v. Kentucky State Bd. of Licensure for Prof'l Engineers & Land Surveyors, 433 S.W.3d 291, 304-05 (Ky. 2014) (footnotes and citations omitted).
Our strong presumption of a statute's constitutionality allows a certain leeway for vagueness, despite perhaps "difficulty ... in determining whether certain marginal offenses fall within [its] language." Constitutional infirmity only arises when, "in the context of the particular conduct to which [the statute or regulation] is being applied[,]" the statute or regulation is beyond comprehension. Essentially, the language of either the statute or regulation is "so vague and indefinite as really to be no rule or standard at all" or "men of common intelligence must necessarily guess at its meaning and differ as to its application."
Major claims that because this term is vague, the APCD could claim it underwent a reorganization and terminate the employment of any employee. We do not believe the term "reorganization" is so vague a term that it makes the ordinances and regulations at issue beyond comprehension or promotes arbitrary enforcement. During the hearing before the Board, Major supplied the Board with a definition obtained from the Code of Federal Regulations which states: "Reorganization means the planned elimination, addition, or redistribution of functions or duties in an organization." 5 C.F.R. § 351.203. He requested the Board adopt this definition, but it declined to do so. Even though the Board declined to adopt this definition, we believe it is one that any reasonable person would attribute to the word in this context. When considering the reorganization of a state agency, it is clear that a change in the functions or duties of the employees and the agency itself is what is being contemplated.
A reorganization is what occurred at the APCD. The APCD Director, Keith Talley, testified that 15 out of 20 job descriptions changed due to this reorganization. He also testified that when the reorganization began, the APCD had around 67 employees, but once the reorganization is complete, the agency will be "somewhere probably significantly south of that[.]" Finally, a new position was created, that of "Performance Analyst". We believe the term "reorganization" is not so vague as to violate due process and be used in an arbitrary manner.
Major's other argument on appeal is that his termination was arbitrary because there was not substantial evidence that the addition of the new required skills for the Information System Analyst position was reasonable or necessary. Major claims that only the other Information System Analyst would need the necessary networking skills required under the new and revised job description and that significant parts of the revised documented job description for the Information System Analyst position were left unaltered, signifying no real need for the new required skills.
As previously mentioned, the APCD had two Information System Analyst positions, one who handled administrative matters and one who handled air monitoring matters. Major was the administrative Information System Analyst. Major claims only the Information System Analyst for the air monitoring section would need the new networking skills as the networking skills would not be pertinent to the administrative Information System Analyst.
As for Major's argument concerning the job description, the documented job description for the Information System Analyst position can be broken down into three relevant parts: "Essential Functions", "Examples Of Work", and "Minimum Requirements". Major brings to our attention the fact that when the job description for the Information System Analyst position was revised due to the reorganization, only the "Minimum Requirements" was changed to indicate networking and related computer skills would be required for the position. He claims that because the APCD and Metro Human Resources Department could not be bothered to alter the "Essential Functions" and "Examples Of Work" sections to reflect the new networking skills requirement, these skills were not reasonably necessary to the position.
We disagree with Major's arguments and find that there was substantial evidence to support the addition of the new skills for the Information System Analyst position. Director Talley testified that Major's Information System Analyst position did not necessarily need the new networking skills, but that he included this new skill set for both Information System Analysts because it would ultimately benefit the agency. He testified that he wanted both positions to have these requisite skills in case there was a need for the administrative Information System Analyst to cover or take over for the air monitoring Information System Analyst. He also stated that he was looking to the future of the APCD and anticipated that changes in technology would require as much expertise as possible within the agency and that the administrative Information System Analyst could be called upon to help in the air monitoring area.
Furthermore, we do not believe that the lack of changes to the "Essential Functions" and "Examples Of Work" sections of the job description negate the need for these new networking computer skills. It is reasonable to conclude that if these new skills are part of the job description, then they will be relevant to the functions and types of work done by the Information System Analyst.
There is substantial evidence in the record for us to determine that the Board's decision to uphold Major's termination was justified due to the reorganization and his lack of the required minimum skills for the Information System Analyst position.
Based on the foregoing, we affirm the judgment of the trial court.
ALL CONCUR BRIEFS FOR APPELLANT: Philip C. Kimball
Louisville, Kentucky BRIEF FOR APPELLEE
LOUISVILLE METRO MERIT
BOARD: Mark W. Dobbins
Sandra F. Keene
Louisville, Kentucky BRIEF FOR APPELLEES
LOUISVILLE/JEFFERSON
COUNTY METRO GOVERNMENT,
LOUISVILLE/JEFFERSON
COUNTY AIR POLLUTION
CONTROL DISTRICT, AND KELLY
WATSON: Michael J. O'Connell
County Attorney Walter A. Sholar
Louisville, Kentucky