VAUGHN (RUBEN), ET AL. VS. CITY OF PADUCAH
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RENDERED: JANUARY 15, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001549-MR
RUBEN VAUGHN; AND THE AMERICAN
FEDERATION OF STATE, COUNTY
AND MUNICIPAL EMPLOYEES, LOCAL
1586, AND ITS MEMBERS
v.
APPELLANTS
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NO. 07-CI-01048
CITY OF PADUCAH
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: MOORE AND THOMPSON, JUDGES; HARRIS, SENIOR JUDGE.1
MOORE, JUDGE: Ruben Vaughn appeals from the entry of judgment against him
by the McCracken Circuit Court. Upon review, we reverse and remand because
1
Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS)
21.580.
the Civil Service Board of the City of Paducah is a necessary party which was not
before the circuit court.
This case originated in September of 2007, when Keith Wilkey,2 Ray
Joseph3 and Appellant Ruben Vaughn, as representatives of a class consisting of
the American Federation of State, County and Municipal Employees, Local 1586
and it members,4 filed a complaint against the City of Paducah. The named
plaintiffs were current or former employees of the City and were members of the
Union. The present appeal only involves Vaughn.5
Beyond employment protections Vaughn enjoyed as a member of the
Union, he was also protected as a merit employee under the Civil Service
Ordinance passed by the City of Paducah pursuant to Kentucky Revised Statute[s]
(KRS) 90.310. The City and the Union entered into a collective bargaining
agreement, the terms of which are at the heart of the underlying matter, including
the following provisions:
2
Wilkey was the president of the Union but is not a party to the appeal.
3
Joseph was the secretary treasurer of the Union but is not a party to the appeal.
4
Initially, the complaint included a vague reference to a class action. After the complaint, the
issue of the class was not litigated. The plaintiffs did not move for class certification and the
trial court did not make any findings of fact with regard to the class. Accordingly, the class was
never certified; nor was certification denied by the trial court. Pursuant to Rose v. Council for
Better Educ., Inc., 790 S.W.2d 186 (Ky. 1989), and under these facts, a class action never
existed.
5
The circuit court granted the City’s partial motion for summary judgment against Vaughn.
Plaintiffs thereafter dismissed all other allegations in their complaint and moved the circuit court
to enter an order of summary judgment in this matter. The circuit court granted the motion and
entered a final judgment.
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B.
It is agreed that disciplinary action shall not be
imposed upon an employee except for just cause.
C.
Any proposed disciplinary action involving
discharge, suspension, or reduction in grade or pay will
be imposed by bringing charges against the employee
before the Civil Service Board, where applicable, unless
the proposed disciplinary action is voluntarily accepted
by the employee. Issues involving disciplinary actions
referred to the Civil Service Board or the Disciplinary
Review Board are not subject to the grievance procedure.
D. Although harsh disciplinary action may be imposed
for severe infractions, in most cases the City shall adhere
to the principle of progressive discipline. This
disciplinary action shall include:
a.
b.
c.
d.
Verbal Warning
Written Reprimand
Suspension
Termination
Vaughn worked for the City for nearly twenty-three and a half years
and was approximately three years from drawing his pension. At the time at issue,
he was a floodwall operator. In this position, he was responsible for mowing steep
embankments using the City’s tractors. While Vaughn was using a tractor to mow,
it was damaged. Another City employee, Greg Taylor, had been using the tractor
to mow for an hour and a half just prior to Vaughn’s use of the equipment.
Vaughn was blamed for the damage to the equipment.
Prior to the 2007 incident, Vaughn had been found to have misused
the City’s equipment, causing damage, on three prior occasions during the previous
two-year period. These actions, combined with the July 2007 incident, cumulated
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in the City’s bringing charges against Vaughn to the Civil Service Board for his
termination. After a hearing, the Board terminated Vaughn, finding:
That the defendant, Ruben T. Vaughn, was in violation of
KRS 90.360, and Paducah Ordinance §78-102 of the
Paducah Code of Ordinances and guilty of charges as
filed including operation of a Ford tractor on July 5,
2007, in such a manner [as] to destroy the tractor’s clutch
assembly. This was the third incident of this type.
In reaching this decision, the Board must assume the
validity of the aforementioned Statute and Ordinance,
and be bound by their provision, terms and requirements.
On appeal from the Board, the circuit court did not find error in the
Board’s alleged failure to evaluate Vaughn’s claim under the collective bargaining
agreement. In so holding, the circuit court stated that “[T]he Civil Service Board
had ‘just cause’ to terminate Vaughn, as that term is defined by the law. As a
result, the City did not violate the collective bargaining agreement with the
American Federation of State, County and Municipal Employees, (AFSCME) of
which Vaughn is a member.”
Vaughn contends on appeal that the standards used by the Civil
Service Board in his termination were contrary to the collective bargaining
agreement. In his prehearing statement to this Court, he stated that the issues on
appeal are “[w]hether the Circuit Court erred by assuming the Civil Service Board
had considered the collective bargaining agreement when [its] order neither
mentions the contract or explains why the City/Appellee had ‘just cause’ to ignore
the progressive discipline set forth therein.”
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Unfortunately the Civil Service Board was not named as a party to the
action before the circuit court. This Court has previously spoken on this subject in
an unpublished opinion, Timmons v. City of Louisville, No. 2003-CA-001631, 2004
WL 1857363 (Ky. App. Aug. 2004), disc. review denied (2005).6 We find the
reasoning in Timmons persuasive and agree that the Civil Service Board is an
indispensable party.
In determining whether the Civil Service Board in the Timmons case
was an indispensable party, the Court noted that “an administrative body is
generally a representative of the public interest.” Id. at 2 (citing Boyd & Usher
Transp. v. Southern Tank Lines, Inc., 320 S.W.2d 120 (Ky. 1959); City of
Louisville v. Milligan, 798 S.W.2d 454 (Ky. 1990)). The Court in Timmons wrote:
The Civil Service Board is a legislatively created
administrative body and was given the sole authority to
administer classified service. KRS 990.110-KRS
990.230. It has been observed that:
[T]he legislature intended to establish an independent
civilian civil service board which could review actions
taken by the department heads of the City of Louisville
and determine the justification for such actions.
....
[T]hat civil service systems were established to control
the unfettered discretion of elected and appointed
officials in public employment.
Milligan, 798 S.W.2d at 456-457. The Board is, thus, not
merely a nominal party. Rather, the Board is vested with
the authority to carry out specific legislative duties and
6
The Timmons opinion fulfills the requirements of Kentucky Rules of Civil Procedure (CR)
76.23(c) for citation.
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with the responsibility of administering a fair civil
service system. It is axiomatic that any judgment
rendered in the Board’s absence would be prejudicial to
the Board’s ability to carry out those legislative duties
and to properly represent the public’s interest in a fair
civil service system. Additionally, we harbor grave
doubt as to whether a judgment could be “shaped” so as
to lessen the prejudicial effect.
Most importantly, we are unable to fathom how any
judgment rendered in the Board’s absence could be
“adequate.” We observe the Board is required by KRS
90.190(3) to transmit a record of its proceedings to the
circuit court. It is a well established principle of
jurisprudence that the judiciary generally reviews an
administrative agency’s decision for arbitrariness. See
American Beauty Homes Corp. v. Louisville and
Jefferson County Planning and Zoning Comm’n, Ky.,
379 S.W.2d 450 (1964). As judicial review is primarily
focused upon the arbitrariness of an administrative
agency’s decision, it is reasonable that the administrative
agency must be made a party to the action. Boyd &
Usher Transp. v. S. Tanks Lines, Ky., 320 S.W.2d 120
(1959); Scott Bros. Logging and Lumber Co. v. Cobb,
Ky., 465 S.W.2d 241 (1971). We do not believe the
Board could be required to take any action in the event of
reversal or remand without the Board having been made
a party to the action. See Milligan v. Schenley Distillers,
Inc., Ky., 584 S.W.2d 751 (1979).
Timmons, 2004 WL 1857363, at 2-3.
In Smith v. Com., Dept. of Justice, 686 S.W.2d 831 (Ky. App. 1985),
the Court analyzed whether the Board of Claims was an indispensable party. Like
the Civil Service Board under review in the present appeal, the statutes governing
the Board of Claims did not set forth whether it must be named a party to an
action. In reviewing this question, the Court ruled that
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[u]nlike the statutory procedure for judicial reviews [of
other agencies], there is no [statutory] requirement . . . to
make the Boards of Claims execute the appellate court’s
order. The Board of Claims must be a party to an appeal
to this Court for it to have a duty to conform to this
Court’s directive. J.T. Nelson Co., Inc., v. Comstock,
[636 S.W.2d 896 (Ky. App. 1982)].
Smith, 686 S.W.2d at 832.
In Vaughn’s appeal on the merits, he contends that the Civil Service
Board failed to use the standards for discipline as set forth in the collective
bargaining agreement and the City. Vaughn argues that “[t]he [Board] ignored the
Agreement and the argument that the applicable standard to be considered was
‘just cause.’ The [Board] made no findings according to the contractually agreed
‘just cause’ standard.” Consequently, to grant the relief sought by Vaughn
(assuming for the sake of argument that he is correct), this matter would have to be
remanded back to the Board, as only the Board has the authority to review the
charges of termination the City brought against him. The City’s only role in the
termination process was to prefer written charges against Vaughn to the Board.
KRS 90.360(2); see, e.g., City of Paducah v. Moore, 662 S.W.2d 491, 495 (Ky.
App. 1984). The provisions of KRS 90.360(6) govern this by providing that
[t]he civil service commission shall punish any employee
found guilty by reprimand or a suspension for any length
of time not to extend six (6) months, or by reducing the
grade, if the employee’s classification warrants, or by
combining any two (2) or more of these punishments, or
dismissed. No employee shall be reprimanded, removed,
suspended or dismissed except as provided in this
section.
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(Emphasis added).
In supplemental briefing on the Timmons case, Vaughn argues that it
is distinguishable because Timmons involved a first class city, whereas the City of
Paducah is a city of the second class. While there are some statutory differences,
these differences have no relevance or impact regarding the issue of whether a
Civil Service Board is an indispensable party. The provisions of the statutes
regarding dismissal and appeals do not differ in any relevant manner regardless of
whether it is a city of the first class or the second class.
We note that Vaughn argues in his supplemental brief that even if the
Board should have been joined, the City has waived this because it did not raise
this in a proper and timely fashion. Vaughn quotes Cabinet for Human Resources
v. Kentucky State Personnel Bd., 846 S.W.2d 711, 714 (Ky. App. 1992), in support
of his argument. However, other caselaw holds that failure to name an
indispensable party is not waived and may be brought up by the Court sua sponte.
See Republic of Philippines v. Pimentel, ___ U.S. ___. 128 S.Ct. 2180, 2188, 177
L.Ed.2d 131 (2008); RAM Engineering & Construction, Inc. v. University of
Louisville, 127 S.W.3d 579, 582-83, 89 (Ky. 2003) (“Therefore, the indispensable
party issue is limited to the question of whether the trial court should have sua
sponte joined RAM . . . .”); Kentucky High School Athletic Ass’n v. Hopkins
County Bd. of Educ., 552 S.W.2d 685, 689 (Ky. App. 1977), overruled on other
grounds; Treadway v. Russell, 299 S.W.2d 245, 246 (Ky. 1957). The reasoning
behind the holdings in these cases can be explained as that
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[u]pon a motion by defendant to dismiss because of
nonjoinder, or upon its own motion, the court will first
undertake to determine whether the absentee is a person
needed for a just adjudication of the action under the
standard set out in Rule 19(a). If that proves to be the
case, the court then will ascertain whether the person is
subject to service of process and whether joinder of the
person will deprive the court of subject-matter
jurisdiction. Just as the nonjoinder of someone deemed
only “necessary” under the prior rule was not fatal, the
nonjoinder of someone described in Rule 19(a) does not
result in a dismissal if that person can be made a party to
the action. If joinder is feasible, the court must order it;
the court has no discretion at this point because of the
mandatory language of the rule.
7 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY KAY KANE, FEDERAL PRACTICE
AND PROCEDURE §1611 (3d ed. Supp. 2009) (notes omitted) (emphasis added); see
also Askew v. Sheriff of Cook County, Ill., 568 F.3d 632 (7th Cir. 2009) (upon
determining that a required party was absent from the suit, the district court was
required to order that the entity be made a party, rather than dismissing the suit).
Notwithstanding that we disagree with Vaughn’s waiver argument, we
agree with the logic in the authority we cited in the preceding paragraph.
[I]t was the duty of the appellate court, even where the
point had not been raised in the court below, to reverse
and remand the case where an indispensable party was
not joined. See Faulkner v. Terrell, Ky., 287 S.W.2d 409
[(Ky. 1956)].
Treadway, 299 S.W.2d at 246 (quoting Flynn v. Brooks, 105 F.2d 766 (D.C. Cir.
1939)); see also Kentucky High School Athletic Ass’n, 552 S.W.2d at 689 (“It was
error to grant the temporary injunction without making the Association a party.”);
RAM Engineering, 127 S.W.3d at 582-83.
We believe it was error for the trial court to rule on the merits of the
motion for partial summary judgment without making the Board a party. CR
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19.01. (“A person who is subject to service of process, either personal or
constructive, shall be joined as a party in the action if (a) in his absence complete
relief cannot be accorded among those already parties . . . . If he has not been so
joined, the court shall order that he be made a party. . . .”) (emphasis added).
Failing to do so, all indispensable parties are not before the Court. And, without
the Board under the jurisdiction of this Court, assuming arguendo that we agreed
with Vaughn’s arguments on the merits, he would be without an avenue for relief.
For the reasons stated, the judgment of the McCracken Circuit Court is reversed
and remanded with directions to permit the joinder of the Board and for further
proceedings not inconsistent with this opinion.7
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
David O’Brien Suetholz
Dennis Franklin Janes
Louisville, Kentucky
Stacey A. Blankenship
Douglas R. Moore
Paducah, Kentucky
7
We pause to note that we are aware that the Board likely will agree with the City on the issues
before the circuit court. Nonetheless, it is the failure of the Board as a party that impedes our
review of the merits of Vaughn’s appeal. Consequently, without the Board as party, Vaughn will
not in effect have an appeal as a matter of right under Section 115 of Kentucky’s Constitution. A
statutory appeal to the circuit court from any agency or tribunal other than the district court is an
original action and not an appeal. Sarver v. Allen County, 582 S.W.2d 40, 43 (Ky. 1979); see
also KRS 90.370.
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