THOMAS EDWIN JONES v. COMMONWEALTH OF KENTUCKY, ADMINISTRATIVE OFFICE OF THE COURTS
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RENDERED: SEPTEMBER 28, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-002615-MR
THOMAS EDWIN JONES
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE SAM G. MCNAMARA, JUDGE
ACTION NO. 05-CI-00052
COMMONWEALTH OF KENTUCKY,
ADMINISTRATIVE OFFICE OF THE
COURTS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: MOORE AND STUMBO, JUDGES; ROSENBLUM, SENIOR JUDGE.1
ROSENBLUM, SENIOR JUDGE: Thomas Edwin Jones appeals from an order of the
Franklin Circuit Court affirming his dismissal from his position as a pretrial hearing
officer by the Administrative Office of the Courts (AOC). For the reasons stated below,
we affirm.
1
Senior Judge Paul W. Rosenblum sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
Jones was initially employed by AOC in September 1984 as a pretrial
services officer in the Bell County office. The record discloses that in November 1987
Jones was placed on three months disciplinary probation for deficiencies in his job
performance, including failing to complete pretrial interviews and criminal histories and
to keep the court tracking file up to date. In September 1994 Jones received a written
reprimand for deficiencies in his job performance, including failing to complete pretrial
interviews and records checks and to keep records and logs up to date. In February 1998
Jones was suspended without pay for one day for deficiencies in his job performance,
including failing to keep records and logs up to date. In January 1999 Jones was placed
on three months disciplinary probation for deficiencies in his job performance, including
failing to keep records and logs up to date. At this time he was warned that further
violations would result in more severe disciplinary action. In November 2002 Jones was
placed on six months disciplinary probation for failing to arrange pretrial coverage at the
jail or for court proceedings on a day when he was ill.
Meanwhile, against the foregoing disciplinary background, in October
1998, D.J. Dalton was hired as a part-time pretrial services officer in the Bell County
office and Jones became her supervisor. Eventually, there were rumors of an affair
between Jones and Dalton, and a conflict developed between Jones' wife, Deborah,2 and
Dalton. Jones alleges that it was Dalton who started the rumors. Dalton eventually
2
The marital status of Jones and Deborah is unclear from the record. In his brief Jones states
that “Deborah divorced [Jones] when their daughters were minor children.” However, at the
May 7, 2004, hearing Deborah was referred to as Jones' wife, including by Jones and his counsel.
Jones testified at that time that he and Deborah were “separated.” In any event, the precise
nature of their marital status is immaterial to our disposition of this appeal.
-2-
began to claim that she was receiving threatening telephone calls and was being stalked.
She also began to allege that Jones was not doing enough to protect her safety and made
reports to AOC managers in Frankfort. Jones was advised of Dalton's concerns and was
directed to take corrective steps. Jones alleges, in substance, that the claims by Dalton
were contrived by her as part of a scheme to have him discharged and to obtain his job.
The Dalton-related events culminated on November 4, 2003, when Dalton
received what she claimed was a threatening call in Jones' presence. According to
Dalton, Jones failed to react to the threatening call, and so she left the office and
contacted law enforcement officials on her own. She also contacted the AOC Central
office about the incident. Having been informed of the call, the AOC Assistant General
Manager of Pretrial Services, Jim Rousch, contacted Jones about the incident, and Jones
disclaimed knowledge of the call. At a later meeting, Jones admitted that he knew about
the call. Rousch concluded from this that Jones had originally been deceptive in
responding to questioning about the call, and this deception became a significant factor in
the ultimate decision to discharge Jones.
Based upon Jones' past disciplinary record, the recent events surrounding
the phone call, Jones' failure to take action concerning the call, and his subsequent
deception in connection therewith, on November 17, 2003, the AOC's Division of Pretrial
Services issued to Jones official notification of its intent to dismiss him from
employment. Jones thereafter requested an informal meeting with the General Manager
of the Division of Pretrial Services. On December 16, 2003, after this informal meeting,
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Jones received a second official notification of intent to dismiss him. Jones appealed, and
on May 7, 2004, the AOC conducted a hearing on the matter. After taking testimony
from several witnesses and reviewing various letters, reports, and affidavits submitted by
the parties, including one by Dalton, the hearing officer concluded that good cause
existed for Jones' dismissal. On June 15, 2004, the Acting Director of the AOC adopted
the hearing officer's recommendation to affirm Jones' dismissal. Jones appealed to the
Court of Justice Employee Grievance and Appeal Committee, which, after a hearing in
September 2004, found that the decision to terminate Jones' employment was reasonable.
Jones then filed an action in the Franklin Circuit Court, which he styled a
"Petition for Appeal of Findings of Fact and Determination of Reasonableness of
Director's Decision." On March 21, 2005, the Franklin Circuit Court ordered that Jones'
action be transferred to the Supreme Court, reasoning that because the AOC is the
administrative arm of the Supreme Court, requests for review of AOC actions can only be
brought before the Supreme Court. On August 25, 2005, the Supreme Court rendered an
opinion deciding that it was proper for the circuit court to conduct judicial review of
personnel decisions of AOC. See Jones v. Com., Administrative Office of the Courts, 171
S.W.3d 53 (Ky. 2005).
On November 26, 2005, the circuit court entered an order affirming AOC's
dismissal of Jones. This appeal followed.
-4-
FRAUD AND MISCONDUCT
Jones contends that his dismissal should be set aside and the cause
remanded for a new hearing because AOC engaged in fraud and misconduct by failing to
provide him with a copy of an affidavit prepared by Dalton prior to the May 2004
hearing. The affidavit was admitted into the record and referred to at the hearing.
Jones alleges that the “the AOC ambushed [him] and created unfair surprise
by referring to the faxed letter and by presenting [the] affidavit at the hearing.” Jones
asserts that AOC's concealment and failure to produce the affidavit prior to the hearing,
and its subsequent use of the affidavit at the hearing, constitutes fraud on the part of
AOC. Jones argues that his dismissal should be set aside and that he should be granted a
hearing unprejudiced by the affidavit.
This argument is unpreserved for our review. First, Jones does not cite us
to his preservation of this argument for review as required by CR3 76.12(4)(c)(v).
Further, our review of the May 2004 hearing discloses no objection to the admission and
use of affidavits of nontestifying witnesses, including Dalton, and, indeed, Jones
submitted such statements himself. Moreover, when specifically asked at the September
2004 Grievance Committee hearing to provide any objections concerning how the
proceedings had been conducted up to that point, Jones did not cite the Dalton affidavit as
a grounds for objection. And, finally, Jones did not raise the submission of the affidavit
as an issue in his appeal to the Franklin Circuit Court.
3
Kentucky Rules of Civil Procedure.
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“It is elementary that a reviewing court will not consider for the first time
an issue not raised in the trial court.” Caslin v. General Elec. Co., 608 S.W.2d 69, 70
(Ky.App. 1980). As Jones failed to previously raise this issue either in the administrative
proceedings or in his appeal to circuit court, it is not properly preserved for our review.
Further, upon application of the palpable error rule contained in CR 61.02,
we likewise find no error. No manifest injustice resulted from the withholding of the
affidavit until the hearing or the introduction therein. Jones was well prepared at the
hearing to address issues relating to Dalton. Under the relaxed evidentiary rules of the
hearing he undertook a scathing impeachment of Dalton's character and credibility. Upon
the record as a whole, we do not believe the affidavit had any impact upon the outcome
of the proceedings.
MISCONDUCT AND DUE PROCESS
Jones also contends that his dismissal should be set aside and the cause
remanded for a new hearing because he never had a chance to cross-examine Dalton.
Jones alleges that he did not have any knowledge that AOC would not produce Dalton as
a witness at the May hearing, and because it instead produced the affidavit, his due
process rights were violated. We disagree.
Again, Jones fails to cite us to his preservation of the issue. Further, we are
unable to locate any objection to Dalton's absence from the May 7, 2004, hearing in the
transcript of the proceedings. Nor does Jones allege that he requested or otherwise
sought Dalton's appearance at the hearing.
-6-
At the September 4, 2004, Grievance Committee hearing Jones did seek a
continuance to procure the presence of Dalton. However, the record contains letters sent
by AOC dated July 7 and August 5, 2004, to Jones' counsel, both of which contain the
statement, “If you wish for subpoenas to be sent, please supply my office with names and
addresses as soon as possible.”
Thus well in advance of the hearing, Jones was made aware that he needed
to timely act if he wanted to subpoena witnesses for the hearing, and he failed to
undertake the proper diligence to do so. Thus, we discern no misconduct or violation of
due process in connection with Dalton's failure to appear for cross-examination in either
of the two hearings held during the administrative proceedings.
Interconnected with this argument is the Grievance Committee's denial of
Jones' request for a continuance in order to secure the presence of Dalton. In Cornwell
v. Commonwealth, 523 S.W.2d 224, 227 (Ky. 1975), the Supreme Court held that the
refusal of a trial court to grant a continuance on account of an absent witness will not be
disturbed unless there is a clear showing of an abuse of discretion in denying the
continuance. We believe the same standard applies here. Based upon Jones' lack of
diligence and the granting of a prior continuance, the Grievance Committee did not abuse
its discretion in denying Jones' request for a second continuance to secure the testimony
of Dalton. There was no misconduct or denial of due process in connection with this
ruling.
-7-
In any event, we conclude that Jones' discharge was in full compliance with
the applicable Policies and Procedures prescribed by AOC for such proceedings. AOC
Personnel Policies Section 6.04, Dismissals and Notification of Dismissals (1999),4
provides, in relevant part, as follows:
(1) Whenever an appointing authority has reasonable
evidence that any appointed official or employee is guilty of
any substantial deviation from good behavior and/or
satisfactory performance of duties, the appointing authority
may, in the exercise of sound discretion, dismiss the
offending appointed official or employee. Grounds for
dismissal include, but are not limited to, the following:
....
(b) Refusal or inability to perform reasonable and legal
duties required by the appointing authority.
....
(d) Refusal or inability to follow the prescribed procedures
for handling money and maintaining records required by the
Court of Justice.
....
(g) Noncompliance with internal written office policies.
The record as a whole discloses that the AOC had reasonable evidence that
Jones had failed to adequately maintain records as required by AOC over a significant
period of time and, more recently, had failed in his management duties in matters
concerning D.J. Dalton. Even if Dalton's claims were contrived, nevertheless Jones had a
4
Effective May 2005 the AOC Personnel Policies were amended. Disciplinary and appeal
procedures, formerly contained in Section 6, are now contained in Section 10. The procedures
for dismissal are now contained in Section 8.08. Section 8.08(1) provides “Whenever the
appointing authority has reasonable evidence that an appointed official or employee, under
his/her management, is guilty of any substantial deviation from good behavior and/or satisfactory
performance of duties, the appointing authority may, in the exercise of sound discretion, dismiss
the offending appointed official or employee.”
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duty to comply with the directive from AOC management to take steps in response to her
complaints concerning safety. There is reasonable evidence to support AOC's conclusion
that Jones failed to properly respond to the November 4, 2003, threatening phone call,
and then attempted to cover up his actions. Based upon the foregoing evidence, the AOC
properly exercised its discretion in discharging Jones.
Further, the AOC Personnel Policy procedure requirements for effecting a
termination were complied with. As previously noted, the only procedural deficiencies
identified by Jones relate to the Dalton affidavit and her failure to appear at the hearing.
Again, for the reasons previously stated, these factors did not infringe upon Jones' due
process rights.
CONCLUSION
For the foregoing reasons the judgment of the Franklin Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Linda J. West
Barbourville, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
James M. Herrick
Assistant Attorney General
Frankfort Kentucky
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