BRENDA BANKS BURKETT; MELISSA L. CARROLL; AND JEFFREY BURKETT v. COMMONWEALTH OF KENTUCKY, KENTUCKY COMMUNITY & TECHNICAL SYSTEM; AND DR. JEFF HOCKADAY, PRESIDENT
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RENDERED: June 1, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000015-MR
BRENDA BANKS BURKETT;
MELISSA L. CARROLL; AND
JEFFREY BURKETT
v.
APPELLANTS
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER CRITTENDEN, JUDGE
ACTION NO. 98-CI-00401
COMMONWEALTH OF KENTUCKY,
KENTUCKY COMMUNITY &
TECHNICAL SYSTEM; AND
DR. JEFF HOCKADAY, PRESIDENT
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, KNOPF AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE.
Brenda Banks Burkett, Jeffrey Burkett (the
Burketts), and Melissa Carrol (Carrol) (collectively the
Appellants) appeal from an opinion and order of the Franklin
Circuit Court entered November 24, 1999, which affirmed a final
order of the State Board for Adult and Technical Education (the
Board) denying them credit for seventy-five hours of personal
leave used to pursue continuing education.
We affirm.
During the summer of 1996, the Appellants were business
instructors at the Rowan Regional Technology Center (RRTC).
As
instructors, the Appellants are required to obtain twenty-five
clock hours of continuing education credits per year in order to
maintain their teaching certification.
Historically, instructors
at RRTC use the break between school terms in June through August
when students are not on campus to take continuing education
courses.
Requests for educational leave1 to pursue continuing
educational credits are handled according to 780 KAR 3.070, which
is entitled “Attendance, Compensatory Time, and Labor.”
Although
there is nothing in this regulation dealing specifically with
educational leave, time requested for educational leave falls
under the “special leave of absence” category.
Pursuant to the
regulation, the school director is given discretion to approve or
disapprove leave requests.
The school director at RRTC during
the summer of 1996 was Kenneth Brown (Brown).
In May 1996 the Appellants developed an interest in the
“school-to-work” educational program used in Great Britain
following their participation in an exchange program.
As a
result of this interest, the Appellants signed up for IET-670 for
the 1996 summer term at Morehead State University (MSU).
This
class is a graduate-level independent study course where the
Appellants would propose an independent research project,
1
Although time taken to pursue continuing education
requirements is referred to as “leave,” the time taken by
educators for this activity is treated as regular paid working
days where the teacher is in class as opposed to reporting to
RRTC.
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complete it, and prepare a report on the results.
The Burketts
had previously obtained educational leave to complete an IET-670
course in the summer of 1994.
As part of the research project,
the Appellants were to travel to Sunderland, England and further
study Great Britain’s use of the school-to-work concept.
There
is no dispute that all of the expenses involved in traveling to
and staying in England were to be borne by the Appellants and
were not subject to reimbursement.
On May 8, 1996, Brown circulated a memo at RRTC
directing the instructors to submit tentative schedules for July
1996.
Although the Appellants were asked to submit their
requests as soon as possible, they continued finalizing air
travel, ground transportation, and housing for their trip before
submitting their requests for leave.
Carrol submitted her
calendar requesting educational leave on June 10, 1996, the
Burketts made their request by memo dated June 19, 1996.
When
Brown asked the Appellants about their intended course of study,
they told him that their research would take place partly at RRTC
and partly in Great Britain.
At Brown’s request, the Appellants
also submitted separate “Requests for Authorization of Out of
State Travel.”
In a memo to the Appellants dated June 27, 1996, Brown
indicated that after discussions with Howard Moore, Regional
Executive of the Northeast Region, and Jeanette Downey, Office
Head for Adult Technical Education, he would not approve the
requests for educational leave because “this activity is not in
the best interest of the State of Kentucky.”
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Despite being
denied educational leave, the Appellants went ahead with their
plans.
Each of the Burketts used seventy-five hours of
accumulated annual leave.
Carroll used two days of annual leave
and took unpaid status for the remainder of the time.
The Appellants filed formal employee grievances from
the denial of leave on July 23, 1996.
Brown, who was the first
person to consider the grievances, entered his findings on July
29, 1996, stating:
The educational request was not presented in
a timely fashion. The educational leave was
denied because it was deemed not to be in the
best interest of the state of Kentucky.
Howard Moore, the next person to review the grievances, affirmed
Brown’s decision, stating:
The State School Director has the authority
to approve or disapprove out of state travel
and I concur with Mr. Brown’s decision.
The grievance was then submitted to mediation by ombudsman.
Upon
failure of mediation to resolve the dispute, the grievance was
submitted to Commissioner Charles Wade, who affirmed Brown’s
decision by noting that his decisions was “appropriate.”
On November 14, 1996, the Appellants appealed their
grievances to the Board.
The Appellants argued that their
requests for leave had been denied because each of them had
signed a petition circulated by a student in the Spring of 1996
in opposition to a proposed layoff of teachers in the Workforce
Development Cabinet.
Following a two-day hearing, Hearing
Officer Scott D. Majors submitted his findings of fact,
conclusions of law, and recommended order on November 14, 1997.
As to the Appellants’ retaliation claims, Majors found that “the
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evidence presented on behalf of the [Appellants] on the claim of
political discrimination simply does not meet the requisite
threshold to support a factual finding in their favor.”
However,
in finding that Brown’s denial of the requests for leave was an
abuse of discretion, Majors stated:2
It is found as fact that School Director
Brown’s decision to deny Petitioners’
applications for “educational leave”
constitutes a failure to exercise sound,
reasonable, or legal discretion. There
simply was no evidence presented to justify
Brown’s explanation in response to the
Petitioners’ grievance that “the educational
leave request was not presented in a timely
fashion.” Had this been the legitimate
reason for denying the request, certainly it
would have been reasonable for the
Petitioners to have been advised of this fact
when Brown personally spoke with Petitioner
Jeffrey Burkett shortly following the June
19, 1996 memorandum. At the latest, this
explanation should have been provided to the
Petitioners in Brown’s memorandum dated June
27, 1996, in which he informed the
Petitioners that their request was “not in
the best interest of the State of Kentucky.
Furthermore, Petitioners’ evidence
overwhelming [sic] supports the proposition
that the concept of “school-to-work” has been
used with great success in Great Britain,
that the Petitioners’ participation in the
program in Great Britain was extremely well
received, and that the information
Petitioners gathered from this program
certainly has been as beneficial towards the
advancement of their professional careers as
have other educational leave approved for
employees and instructors at the RRTC,
including both Petitioners in 1994[.] . . .
While the concept of “the best interest of
the State of Kentucky” necessarily cannot be
defined in such terms as to encompass every
specific situation included in an educational
leave request, the fact remains that the
2
We have deleted the paragraph numbers from the following
quote.
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denial of Petitioners’ application for
educational leave in the present action was
made capriciously and without fair, solid, or
substantial cause. It is not necessary to
determine that this rejection for their
application for “educational leave” was
premised on political discrimination in order
to find that the denial was improper; rather,
it is sufficient to find that the denial did
not follow the procedures and policies
previously applied to similar requests. In
this case, the undersigned finds that the
decision made for the Petitioners’
application did not honor the practices and
procedures which have been utilized in
previous cases.
. . . .
Although there is no formal provision in 780
KAR 3:070(4) “educational leave,” as that
term is used by the Petitioners, the practice
of granting it has become a common practice
by usage and custom.
As the custom of “educational leave” is by
usage and custom only, so also is the
application and policy as to its approval or
disapproval.
The custom and usage in the Department for
Technical Education was to liberally grant
such applications.
Petitioners have failed to prove by a
preponderance of the evidence that their
requests for “educational leave” were denied
in retaliation for any protected political
expression, in violation of KRS 151B.096.
Petitioners have proved by a preponderance of
the evidence that the Respondent abused its
discretion and acted in an arbitrary manner
in denying their requests for “educational
leave.” Section 2 of the Kentucky
Constitution prohibits an administrative
agency from acting in an arbitrary manner.
Bunch v. Personnel Board, Ky.App., 719 S.W.2d
8, 10 (1986). Administrative discretion will
not be disturbed unless it is abused,
unreasonably exercised, or otherwise
unlawful. Com. Ex. Rel. Merrideth v. Frost,
Ky., 72 S.W.2d 905-909 (1943).
Administrative officers must execute the law
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committed to them fairly and honestly and
treat everyone alike according to the
standards and rules of action proscribed.
When there is failure in this respect, and it
extends beyond the rudimentary requirements
of fair play, it enters the realm of
unreasonable and arbitrary action. Id. The
undersigned concludes as a matter of law that
the Respondent’s action in denying
Petitioners’ application for educational
leave, under the circumstances presented, and
in concert with the testimony concerning the
usual customs, practices, and procedures
applied to similar requests, demonstrates a
capricious, arbitrary decision which
constitutes an abuse of discretion. There
simply was no hard evidence presented at the
hearing which justified the departure from
the practice of liberally granting such
applications in these instances. While
Respondent referenced various concerns,
ranging from liability issues to the
untimeliness of the submission of the
application, there simply was no evidence
presented which established how these
concerns were legitimately harbored.
Majors recommended that the Appellants be credited with 75 hours
of personal leave.
Following entry of Majors’ recommendation, the
Department filed exceptions and submitted its own proposed
findings of fact, conclusions of law, and recommended order.
Aside from filing their own proposed findings of fact and
conclusions of law, the Appellants filed no exceptions to Majors’
findings or recommendations.
On February 12, 1998, the Board entered its final order
rejecting Majors’ recommended order and denying the Appellants’
appeal.
The Board chose to adopt and incorporate by reference
the findings of fact and conclusions of law and final order
submitted by the Department.
Although the Board adopted Majors’
findings that the denial of the requests for leave was not
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politically motivated, it rejected the finding that Brown’s
decision was arbitrary, stating:
[T]he Board specifically finds that
substantial evidence exists in the record to
support the Board’s holding that the agency’s
decision to deny Petitioners’ request for
paid leave was not arbitrary. Under 780 KAR
3:070, the school director is granted
discretionary authority to approve or
disapprove the paid leave for a trip to
England to do an independent study requested
by the Petitioners. School Director Brown
denied the requests in a memorandum dated
June 27, 1996 after he had discussed
Petitioners’ requests with the Regional
Executive Director, Mr Howard Moore, as well
as the Director of the Division of School
Management, Ms. Jeanette Downey. School
Director Brown stated in that memorandum the
request was not deemed to be “in the best
interests of the State of Kentucky.”
[citation to record omitted] According to
the testimony of School Director Brown, he
based this decision on four factors: (1) The
location of the research, (2) Issues
concerning liability, (3) The course
description, and (4) The responsibilities of
the Petitioners. [citation to record omitted]
In addition, the Board finds persuasive the
fact that the request was for paid leave
outside the United States and that in the
employee grievances subsequently filed by the
Petitioners over denial of their requests for
paid leave, School Director Brown’s decision
was supported first by his supervisors
beginning with Mr. Moore. . . . Petitioners
then requested mediation, which was conducted
with School Director Brown, Mr. Moore, and
Ms. Downey. That review and the previous
rulings were confirmed by the Acting
Commissioner of the Department for Technical
Education, Dr. Charles D. Wade. [citation to
record omitted]
Furthermore, this Board finds that it derives
its power to hear and decide cases on
employee appeals which are based upon adverse
employment actions, not an abridgement of
rights guaranteed under the Kentucky
Constitution. Powers of this Board must
affirmatively appear from the enactment under
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which the Board’s jurisdiction comes, KRS
Chapter 151B. The Board not only lacks power
and jurisdiction to pass on a constitutional
issue, but, also, the Board lacks the
expertise in the constitutional areal.
Moreover, this Board promulgated an
administrative regulation conferring plenary
jurisdiction to the school director to grant
or deny the benefit of special paid leave;
therefore, there is created no justifiable
expectation that the benefit will be received
at all, and, hence, cannot form the predicate
for invoking the protection of Article II of
the Kentucky Constitution. The determination
of whether to permit these leave requests
requires the exercise of expert judgment
within the competence of the managers in the
Department of Technical Education. The
Hearing Officer committed a clear error of
law when he used Article II of the Kentucky
Constitution to substitute his discretionary
judgment for that of the agency’s staff who
have the expertise as determined by the
General Assembly to decide whether or not it
is in the best interests of the Commonwealth
to award special paid leave.
The Board’s decision was affirmed by the trial court and this
appeal followed.
The Appellants maintain that the Board’s order is
violative of KRS 13B.120(3) because it does not contain any
language advising them of their right to appeal.
Although the
Appellants are correct that KRS 13B.120(3) requires a final order
stemming from an administrative hearing to contain “a statement
advising the parties fully of available appeal rights,” and
although the Board’s order itself does not contain such language,
this argument is without merit.
As we noted, the Board indicated
in its order that it adopted and incorporated “by reference as
though fully set out herein” the findings of fact and conclusions
of law and recommended order of the Department.
-9-
The Board also
attached copies of the Department’s pleadings to its order.
A
review of the Department’s proposed findings and order shows that
it contained the language required by KRS 13B.120(3) on pages 910.
As the Board fully adopted and incorporated the Department’s
proposed findings and order in its entirety, KRS 13B.120 is
satisfied.
The Appellants also argue that the Board’s order is
violative of KRS 13B.120 because the Board failed to make its own
findings of fact based on a review of the record and because the
Board chose to adopt the Department’s findings of fact and
conclusions of law and recommended order.
This argument is also
without merit.
KRS 13B.120(1) requires the Board to “consider the
record including the recommended order and any exceptions duly
filed to a recommended order.”
Although the Appellants argue
that the Board “did not consider the record as a whole, but
rather chose from various Findings tendered by counsel for the
Department,” and that the Board merely parroted the Department’s
findings, they present no evidence to back up their allegations.
We note that the Board’s order stated that it did review the
record in this case and having reviewed the record ourselves we
find that the Board’s final order is not so divergent from the
record so as to indicate that the Board failed to make its own
independent review of record.
KRS 13B.120(3) states that “if the final order differs
from the recommended order, it shall include separate statements
of findings of fact and conclusions of law.”
-10-
As the trial court
noted, the only area in which the Board’s order differed from the
recommended order was on the issue of whether the denial of leave
was arbitrary.
The Board spent two page outlining why it
disagreed with Majors’ recommendations, and we believe this is
sufficient to satisfy KRS 13B.120.
The Appellant’s reliance on Kentucky Milk Marketing and
Anti-Monopoly Commission v. Borden Co., Ky., 456 S.W.2d 831
(1969) is misplaced.
Although dicta in that opinion criticized
the practice of adopting findings of fact and conclusions of law
submitted by litigants, it did not prohibit the practice
outright.
Furthermore, the dicta was not so much concerned with
the practice itself as it was the fact that it gave attorneys the
opportunity to “clutter up the record by filing detailed,
lengthy, contradictory findings of fact and conclusions of law.”
Kentucky Milk Marketing, 456 S.W.2d at 835.
Finally, the Appellants argue that the Board’s order is
not supported by substantial evidence and is incorrect as a
matter of law.
Again, we disagree.
Having reviewed the transcript of the hearing, we agree
with the trial court that the Board’s decisions is supported by
substantial evidence, specifically Brown’s testimony as to why he
denied the Appellant’s requests for leave.
Contrary to the
Appellant’s allegations in their brief on appeal that “[t]here is
no evidence in the record to sustain the finding that the
location of the research, issues concerning liabilities or the
“responsibilities” of the Appellants played any role whatsoever
in Mr. Brown’s decision to deny their requests,” Jeffrey Burkett
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testified at the hearing that Brown expressed concerns regarding
liability during a discussion pertaining to the requests for
leave.
See Transcript of Administrative Hearing, Volume I, page
177-179.
As to the Appellant’s argument that the Board’s order
is legally incorrect, that argument is a mere tempest in a
teacup.
In Paragraph 41 of the recommended order, Majors made a
passing reference to Article II of the Kentucky Constitution in
support of the proposition that an administrative agency may not
act arbitrarily.
We agree with the Department that the Board’s
opinion concerning Majors’ use of Article II was mere dicta.
The opinion and order of the Franklin Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
Steven G. Bolton
Frankfort, KY
A. B. Chandler, III
Attorney General
Bill Pettus
Assistant Attorney General
Frankfort, KY
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