Opinion
NO. 2018-CA-001174-MR
07-26-2019
DAVID REED WILBERS APPELLANT v. OFFICE OF THE ATTORNEY GENERAL APPELLEE
BRIEFS FOR APPELLANT: Stephen D. Wolnitzek Zachary M. Lotspeich Covington, Kentucky BRIEF FOR APPELLEE: Sam Flynn Shan Dutta Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT, HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 18-CI-00157 OPINION
AFFIRMING
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BEFORE: KRAMER, NICKELL, AND L. THOMPSON, JUDGES. KRAMER, JUDGE: David Wilbers appeals from an order of the Franklin Circuit Court dismissing his appeal from a final order of the Kentucky Personnel Board which determined that termination of his employment as an investigator for the Office of the Attorney General (AG) was neither excessive nor erroneous. The trial court found that Wilbers failed to name an indispensable party (i.e., the Personnel Board) in his appeal and that he had no independent cause of action under KRS 15.520, known colloquially as the "Police Officers' Bill of Rights." We affirm.
Kentucky Revised Statute.
See e.g., City of Munfordville v. Sheldon, 977 S.W.2d 497, 497 (Ky. 1998).
Factual and Procedural Background
We note that neither party filed a Designation of Record pursuant to Civil Rule (CR) 75.01. Although the record indicates the circuit court held hearings on the AG's motion to dismiss and Wilbers' motion to alter, amend, or vacate, those hearings are not in the record before us.
Wilbers was employed as an Investigator III for the AG. His duties included investigations of allegations of healthcare fraud against the Kentucky Medicaid Program. Wilbers was assigned to investigate allegations related to provider Edward Parker in Boyle County, Kentucky. As a result of his investigation, Wilbers testified in front of the Boyle County Grand Jury. His testimony led to the indictment of Mr. Parker for felony charges related to healthcare fraud. Mr. Parker's counsel subsequently filed a motion to dismiss the charges due to prosecutorial misconduct. He alleged that Wilbers made several false and misleading statements to the grand jury and had improper contact with Mr. Parker at the Boyle County Jail. The AG's office entered into an agreed order of dismissal with Mr. Parker's counsel. Thereafter, the AG began a fact-finding investigation regarding the contents of Mr. Parker's motion to dismiss.
Holly McCoy-Johnson, Executive Director of Administrative Services and Wilbers' appointing authority at the AG, and Gordon Slone, Assistant AG, met with Wilbers to conduct an interview on September 30, 2016. The purpose of the interview was to gain more information regarding the allegations Mr. Parker had made in his motion to dismiss. Wilbers was not given prior notice of the interview. Wilbers asserted what he believed were his rights under KRS 15.520. McCoy-Johnson told Wilbers that his employment was covered under KRS Chapter 18A and that KRS 15.520 was not applicable. Effective October 3, 2016, Wilbers was placed on leave with pay pending further investigation by the AG. On December 16, 2016, McCoy-Johnson and Slone conducted a second interview with Wilbers. Wilbers asserted what he believed were his rights under KRS 15.520 and was again denied. Approximately two weeks after the second interview, the AG provided notification of intent to dismiss to Wilbers in accordance with KRS 18A.095(2). Wilbers requested a pre-termination hearing pursuant to KRS 18A.095(4) and (5). The AG held the pre-termination hearing on January 5, 2017. The hearing was conducted by McCoy-Johnson and Slone. Wilbers was present and represented by counsel.
The record shows that Wilbers believed he was entitled to forty-eight hours' notice prior to an "interrogation" under KRS 15.520(5)(c).
On January 6, 2017, the AG terminated Wilbers' employment citing lack of good behavior and unsatisfactory performance of duties stemming from the Parker case as well as his actions and behaviors in two prior cases. His last day of employment was January 10, 2017. Wilbers appealed to the Personnel Board. Wilbers completed an "Appeal Form" issued by the Personnel Board which states, in relevant part, "[t]his appeal to the Kentucky Personnel Board is hereby filed pursuant to the provisions of KRS Chapter 18A." The Personnel Board held an evidentiary hearing on July 10 and 11, 2017. Wilbers was present and represented by counsel. Following the hearing, the hearing officer issued a recommended order that Wilbers' appeal be dismissed. The hearing officer concluded that (1) Wilbers' conduct in the Parker case constituted lack of good behavior and unsatisfactory performance; (2) the decision to dismiss Wilbers was supported by just cause and was neither excessive nor erroneous; (3) KRS 15.520 did not apply to Executive Branch constitutional offices and he was therefore not entitled to the administrative process protections of the statute. The Secretary of the Personnel Board adopted the recommended order and entered a final order dismissing Wilbers' appeal.
Wilbers then appealed to the Franklin Circuit Court. In his complaint, Wilbers stated, in relevant part, "[v]enue and jurisdiction of this matter are proper in the Franklin Circuit Court because this action appeals a Final Order of the Personnel Board pursuant to KRS 13B.140 and KRS 18A.100." Wilbers listed two causes of action. The first was his appeal under KRS Chapters 13B and 18A. In the second cause of action, Wilbers sought a declaratory judgment holding that he is a police officer as defined in KRS 15.520 and entitled to the statute's protections. The AG filed a motion to dismiss Wilbers' complaint, arguing that Wilbers failed to join the Personnel Board as an indispensable party pursuant to KRS 13B.140. The circuit court granted the AG's motion and dismissed the case. The circuit court also held that Wilbers' claim under KRS 15.520 was already heard and rejected by the Personnel Board and that he had no independent cause of action for any alleged violation of that statute.
In his subsequent motion to alter, amend, or vacate the circuit court's order, Wilbers conceded that he failed to join the Personnel Board pursuant to KRS 13B.140, but argued that he was still entitled to pursue his claim regarding KRS 15.520. The circuit court disagreed, ruling, in relevant part,
As a classified employee, [Wilbers] was already entitled to full due process in his hearing before the Personnel Board. He is not entitled to an additional layer of administrative due process because he had law enforcement duties. As noted above, the Police Officers' Bill of Rights was designed to protect local law enforcement officers from arbitrary dismissal when local units of government have no administrative remedies to protect employee rights. As a state employee, [Wilbers] does not fall within the scope of KRS 15.520.This appeal followed.
Analysis
Wilbers essentially argues that he is entitled to two appeals. The first, which Wilbers pursued below before the AG, Personnel Board, and circuit court - but which is not before this Court - is the process he was entitled to as a state employee in the Executive Branch pursuant to KRS Chapters 13B and 18A. Wilbers argues that he is entitled to a "separate, distinct appeal from KRS [Chapters] 13B [and 18A]" because he is also entitled to an appeal under KRS 15.520. Wilbers asks this Court to create new law that entitles an investigator for the AG to have two separate appellate pathways if his employment is terminated. We decline to do so.
First, Wilbers' cause of action under KRS 15.520 was styled as a declaratory judgment in his appeal before the circuit court. Kentucky has not recognized an administrative declaratory judgment action, nor does KRS 418.040 et seq., permit one to be sought for the first time within the appellate process. Yocom v. Campbell, 536 S.W.2d 470, 472 (Ky. 1976). Even if Kentucky law permitted Wilbers to seek an administrative declaratory judgment on appeal, the Personnel Board, not the AG, entered the final order declaring that Wilbers did not have rights under KRS 15.520. Wilbers fails to make any argument as to why the Personnel Board is not an indispensable party to his declaratory judgment cause of action. This is despite the fact that Wilbers acknowledges he failed to name the Personnel Board as an indispensable party for his appeal under KRS Chapters 13B and 18A. The circuit court properly dismissed the action.
See KRS 418.075 which provides, in relevant part, "[w]hen declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding." (Emphasis added.)
Second, the record before us shows that Wilbers argued he was entitled to rights under KRS 15.520 beginning in September 2016, during his first interview with McCoy-Johnson and Slone. A review of statutory procedures outlined in KRS 15.520, as well as relevant caselaw in Kentucky, shows that if a police officer believes he has been denied due process under KRS 15.520, the matter is appealed to the circuit court, not the Personnel Board. In fact, an appeal to the Personnel Board is not an option for police officers under KRS 15.520. Rather, it is an option specifically for state personnel under KRS Chapter 18A. For example, in City of Munfordville v. Sheldon, 977 S.W.2d 497 (Ky. 1998), a police officer for the city of Munfordville was summarily dismissed by the newly-elected mayor. The officer immediately appealed his termination to the circuit court, arguing that he was denied a hearing by the mayor pursuant to KRS 15.520. On appeal from the circuit court, the Kentucky Supreme Court held that the police officer was entitled to a hearing before the mayor, who was his appointing authority, under KRS 15.520.
Wilbers argues that KRS 15.520(8)(a) enables the Personnel Board to hear the matter. That subsection of the statute states
Any officer who is found guilty by any hearing authority of any charge, may bring an action in the Circuit Court in the county in which the employing agency is located within thirty (30) days of the date written findings are issued to appeal the action of the hearing authority. The appeal shall be initiated by the filing of a complaint in the same manner as any civil action under the Rules of Civil Procedure and shall include a copy of the hearing authority's final order. The Circuit Court review of the case shall be based solely upon the administrative record created before the hearing authority and any new evidence offered by the officer regarding alleged arbitrariness on the part of the hearing authority.
However, Wilbers fails to reconcile this with KRS 15.520(7) which states
Unless waived by the charged officer in writing, a hearing shall be conducted by the officer's appointing authority to determine whether there is substantial evidence to prove the charges and to determine what, if any, disciplinary action shall be taken if substantial evidence does exist. In conducting a hearing, the following administrative due process rights shall be recognized and these shall be the minimum rights afforded any officer charged, except as otherwise agreed to in writing by the officer and the employing agency[.]
(Emphasis added.) Wilbers had a hearing before his appointing authority, McCoy-Johnson. If he believed his rights under KRS 15.520 were violated because this hearing was somehow defective under the statute, or if he thought his other rights under KRS 15.520 were violated with regard to the AG's handling of the investigation, the proper procedure would have been to appeal to the circuit court within thirty days of January 6, 2017. Rather than follow the statutory procedures outlined in KRS 15.520 to appeal his termination, however, Wilbers appealed his dismissal to the Personnel Board, pursuant to KRS 18A.095, for a second hearing and then appealed to the circuit court. By the time he filed an action in the circuit court, Wilbers' appeal under KRS 15.520 was time barred. We agree with the circuit court that Wilbers cannot repackage and rebrand his appeal as an independent cause of action in an attempt to circumvent the time constraints imposed by KRS 15.520 and the failure to name the Personnel Board as an indispensable party.
While the parties argue whether Wilbers was entitled to rights afforded police officers under KRS 15.520 (as it appeared at the time of Wilbers' termination), we need not reach that issue. Regardless of whether Wilbers was entitled to rights under the statute, there is no caselaw or statutory scheme that permits a police officer to pursue an administrative appeal of termination of employment under KRS Chapters 13B and 18A in addition to KRS 15.520. Yet Wilbers asks this Court to create law allowing investigators employed by the AG to have two separate and distinct appeals upon termination. Wilbers had full due process having been afforded a pre-termination hearing before his appointing authority and in his hearing before the Personnel Board. We agree with the circuit court that Wilbers is not entitled to an additional layer of due process. His failure to name the Personnel Board as an indispensable party in his appeal to the circuit court was fatal.
The AG points out that "during the 2018 Regular Session of the Kentucky General Assembly, the legislature passed House Bill 140, which amended KRS 15.520(h) to [ ] expressly include Office of the Attorney General investigators to those 'Officers' entitled to the administrative due process provided under KRS 15.520." However, "Kentucky law prohibits the amended version of a statute from being applied retroactively to events which occurred prior to the effective date of the amendment unless the amendment expressly provides for retroactive application." Commonwealth Dept. of Agriculture v. Vinson, 30 S.W.3d 162, 168 (Ky. 2000) (see also KRS 446.080(3)). --------
Accordingly, we affirm the Franklin Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Stephen D. Wolnitzek
Zachary M. Lotspeich
Covington, Kentucky BRIEF FOR APPELLEE: Sam Flynn
Shan Dutta
Frankfort, Kentucky