MACY (SHARON) VS. KENTUCKY EDUCATION PROFESSIONAL STANDARDS BOARD
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RENDERED: MARCH 5, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002234-MR
&
NO. 2008-CA-002293-MR
SHARON MACY
APPELLANT/CROSS-APPELLEE
APPEAL AND CROSS-APPEAL FROM FRANKLIN CIRCUIT COURT
v.
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 05-CI-00059
KENTUCKY EDUCATION
PROFESSIONAL STANDARDS
BOARD
APPELLEE/CROSS-APPELLANT
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, MOORE, AND STUMBO, JUDGES.
STUMBO, JUDGE: Sharon Macy appeals, and the Kentucky Education
Professional Standards Board cross-appeals, from an Opinion and Order of the
Franklin Circuit Court affirming in part and reversing in part a Final Order of the
Kentucky Education Professional Standards Board (“the Board”). The Board
revoked Macy’s Teaching Certificate for a period of ten years upon determining
that Macy committed multiple statutory and regulatory professional conduct
violations. On review, the circuit court reversed in part after concluding that some
of the Board’s findings were not supported by substantial evidence. The court
sustained, however, the Board’s finding that Macy had engaged in criminal
conduct involving the terroristic threatening of students during school hours and on
school property, and that this finding alone supported the Board’s revocation of
Macy’s Teaching Certificate. Macy appeals from this determination and the Board
cross-appeals from the circuit court’s reversal of several of the Board’s findings.
We are persuaded that the Board properly determined that Macy’s criminal
conduct supported the revocation of her Teaching Certificate for a period of ten
years, and accordingly affirm the Opinion and Order on appeal.
Macy began her employment as a school teacher with the Hopkins
County School System in approximately 1981. In 1987, she suffered a severe head
injury while bicycling on a public roadway. The injury required her to relearn how
to write her name and perform everyday tasks. She suffered the lingering effects
of headaches, lack of concentration, irritability and anger. Macy continued to work
as a school teacher, and was able to manage her headaches via the use of occipital
nerve blocks.
In 1995, Macy was involved in a motor vehicle accident which caused
the headaches to return. She continued treatment with a neurologist and therapist.
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That same year, Assistant Superintendent for Instruction at the Hopkins County
Board of Education, Linda Zellich, was approached by a school psychologist who
suggested implementing a “504 plan” to assist Macy in her employment. 504
plans had already been developed to accommodate students with disabilities as
provided for under the Federal Rehabilitation Act. Though not intended for
teachers, Zellich sought to develop a similar plan to help Macy. Such a plan was
developed and implemented, which provided a cot for Macy to rest on when she
developed severe headaches and a plan for an assistant to supervise her classroom
in Macy’s absence. Informational documents were produced to inform other
teachers of Macy’s condition, and in order to reduce noise, students were requested
not to walk through the gym where Macy taught. The plan was revised in 1997
and 1999.
In 1999 and 2000, some teachers began to become concerned that
Macy was becoming increasingly anxious, frustrated and subject to outbursts. An
ongoing conflict developed between Macy and Principal Darryl Herring. The first
notable incident involving Macy occurred on November 24, 1998, when Macy
became angry during a gym class and pushed a chair off of a stage where she was
standing. A student complained to his father that the chair landed where the
student had just been standing, and after the father met with Principal Herring a
letter was placed in Macy’s file indicating that the behavior was not appropriate.
Several other incidents occurred, which are set out in the record and
do not need to be fully recited herein. Macy was given a written reprimand for an
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outburst involving another teacher, a parent, and a student, which occurred on
November 5, 1999; the next month, Macy created fake detention slips for the
purpose of seeing whether male and female members of the school’s basketball
teams were treated differently; and, Macy became involved with an informal
school organization called the Loser’s Club, which may have been intended to
mock the school’s Pride Club which promoted good behavior and good grades.
On November 7, 2000, a parent filed a complaint against Macy in
Hopkins County District Court alleging that Macy had repeatedly threatened to kill
members of the boys’ basketball team after she learned that they were teasing a
group of girls. A sheriff’s department investigation ensued, after which a criminal
complaint against Macy was filed setting out nine counts of terroristic threatening.
Macy’s employment was terminated by way of letter dated November
30, 2000. While the primary basis for the termination was the November 1, 2000
terroristic threatening incident, 31 additional offenses were charged in the letter. A
teacher tribunal affirmed the termination in late January, 2001.
On March 29, 2001, trial was conducted in Hopkins District Court on
the nine counts of terroristic threatening. Macy was found guilty, and ordered to
pay a fine of $500.00 per count for a total of $4,500.00. The fine was discharged
on the condition that Macy has no abusive contact with the victims for two years
and commits no other criminal offenses during that period. The Hopkins Circuit
Court affirmed the conviction on December 7, 2001.
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A number of additional incidents occurred which are worth noting. It
was later alleged before the Board that Macy threw a plastic water bottle at
administrator Zellich’s car in the parking lot; that Macy positioned her vehicle to
block in Zellich’s vehicle at a gas pump while Macy was crying and berating
Zellich; that Macy confronted Zellich in the school parking lot and positioned her
car to block Zellich’s car; that Macy made harassing phone calls to Zellich’s home
and left a voice mail stating that Macy’s termination from employment was going
to result in Macy’s death.
In November, 2000, the Board filed 18 administrative charges against
Macy alleging that she violated several statutory and regulatory provisions
governing her conduct as a Kentucky school teacher. The incident which formed
the basis for the terroristic threatening conviction was among the charges, but a
number of other incidents were included in the Board’s allegations. Five
additional charges were added in April, 2004.
The matter proceeded before a Hearing Officer who upon taking proof
dismissed several of the charges because they lacked a sufficient nexus to Macy’s
employment as a school teacher to warrant disciplinary action. Other charges were
dismissed as having no legal basis. The Hearing Officer rendered recommended
Findings and Order in which the officer concluded that only the incidents
involving the threatening of students rose to the level sufficient to warrant
discipline. The officer recommended that Macy’s Teaching Certificate be
suspended until January 1, 2005.
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The Board’s legal counsel filed exceptions to the recommended
Findings and Order. Thereafter, the Board rejected the Hearing Officer’s
recommendation to dismiss most of the charges as not supported by the law or
lacking a sufficient nexus to Macy’s employment, and it determined that her
Teaching Certificate should be suspended for a period of ten years ending in 2015.
This determination was memorialized in a Final Order rendered in September,
2004.
Macy then prosecuted an appeal to the Franklin Circuit Court. On
October 22, 2008, the court rendered an Opinion and Order affirming in part and
reversing in part the Board’s Final Order revoking Macy’s Teaching Certificate for
10 years. The court determined that a number of the allegations set out in the
Board’s action did not support a finding that Macy violated the applicable
professional standards statutes and regulations. For example, the court found no
substantial evidence to support the conclusion that Macy’s act of pushing the chair
off the stage, or another incident where she kicked a trashcan across the room in
the presence of students violated the applicable statutes or regulation sufficient to
support revocation. Similarly, the court found that Macy’s participation in – or
support of – the so-called Loser’s Club did not put in jeopardy the “health, safety
and emotional well-being of students” as required by one regulation cited, nor that
it subjected students to “embarrassment or disparagement” as required by another
regulation. Furthermore, the circuit court determined that Macy’s issuance of fake
detention slips for the purpose of investigating whether male and female students
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were treated differently by the administration did not meet the statutory
requirement set out in KRS Chapter 161 of “incompetence or neglect of duty.”
As to Macy’s criminal conviction for terroristic threatening, the circuit
court found that “these charges, standing alone, are adequate to justify the severe
penalty imposed” by the Board. It found substantial evidence in the record to
support the Board’s contention that Macy was convicted of nine counts of
terroristic threatening, and that the acts underlying the conviction supported the
Board’s conclusion that Macy violated the statutes and regulations governing
professional conduct. The circuit court determined that because of the nature of
the terroristic threatening incident – which included Macy’s repeated threats to kill
nine students - those facts taken alone supported the revocation of Macy’s
Teaching Certificate. This appeal followed.
Macy now argues pro se that the Board acted arbitrarily and contrary
to the weight of the evidence when it found violation of counts 1-14, 17-19 and 23,
and in rejecting the Hearing Officer’s Recommended Order by imposing a 10-year
revocation. In support of this argument, Macy maintains that the record in this
matter is so large that the Board’s adoption of its attorney’s exceptions, coupled
with the large volume of other cases that it was reviewing, demonstrates that the
Board’s decision was arbitrary. Macy also argues that the Board’s Findings of
Fact and Conclusions of Law are contrary to the evidence; that counts 1-11 and 1719 were not serious matters meriting revocation of her Teaching Certificate; and,
that other teachers in the Hopkins County School System have committed similar
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or greater offenses but have not been terminated from employment. In sum, she
contends that the circuit court erred in affirming the Board’s action because
professional violations with which she was charged either were not serious enough
to merit the revocation of her Teaching Certificate, or was not otherwise supported
by substantial evidence.1
In response, the Board characterizes as misplaced Macy’s argument
that the Board was somehow required to accept the Hearing Officer’s
Recommendations, and her contention that the revocation of her Teaching
Certificate is arbitrary because the Board imposed less severe penalties in other
cases. It also maintains that the regulatory and statutory violations supporting the
revocation were supported by substantial evidence of record. In its cross-appeal,
the Board argues that the circuit court erred in reversing the Board as to counts 1-2,
4-6, 9-11, 17 and 19 because the allegations set out in those counts were supported
by substantial evidence.
We have closely examined the record and the law, and find no basis
for reversing the Opinion and Order on appeal. On review, the Franklin Circuit
Court was charged with the duty to determine whether the Board’s action 1)
violated the constitutional or statutory law, 2) was in excess of its statutory
1
Macy also filed 1) a complaint with the Kentucky Commission on Human Rights alleging
violations of the Kentucky Civil Rights Act, and 2) a complaint in United States District Court
for the Western District of Kentucky alleging wrongful termination in violation of Americans
with Disabilities Act (ADA) and Kentucky Civil Rights Act (KCRA), and retaliatory discharge.
The EEOC complaint was dismissed for lack of probable cause. The federal action resulted in an
Order granting Summary Judgment in favor of the school district after the court determined that
Macy failed to rebut the school district's proffered legitimate, nondiscriminatory reason for
terminating her employment.
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authority, 3) was not supported by substantial evidence, 4) was arbitrary or
capricious, 5) was based on ex parte communications, or 6) was otherwise contrary
to the law. See generally, KRS 13B.150; Southern Bluegrass Racing, LLC v.
Kentucky Horse Racing Authority, 136 S.W.3d 49 (Ky. App. 2004). Arbitrariness
is found where an agency exceeds its statutory powers, does not afford the parties
procedural due process, or takes action unsupported by substantial evidence.
Kentucky Board of Nursing v. Ward, 890 S.W.2d 641 (Ky. App. 1994). And
finally, substantial evidence is some evidence of substance or relevant consequence
having fitness to induce conviction in the minds of reasonable people. Ira A.
Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).
In the matter at bar, the Franklin Circuit Court undertook an analysis
of each count of the 23 count charge. While addressing each count, it concluded
“that the criminal conduct involving the threatening of students during school
hours and on school property, which resulted in a conviction on multiple counts of
terroristic threatening, by itself provides a sufficient basis to support the severe
penalty imposed by the Board, regardless of whether any of the other
administrative charges against Ms. Macy can be sustained.” That charge, set out as
count 23 in the complaint, alleged that Macy lacked the physical or mental
capacity to perform her duty as required by KRS 161.120(1)(e). That provision
states that,
. . . the Education Professional Standards Board may
revoke, suspend, or refuse to issue or renew; impose
probationary or supervisory conditions upon; issue a
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written reprimand or admonishment; or any combination
of those actions regarding any certificate issued under
KRS 161.010 to 161.100, or any certificate or license
issued under any previous law to superintendents,
principals, teachers, substitute teachers, interns,
supervisors, directors of pupil personnel, or other
administrative, supervisory, or instructional employees
for the following reasons: . . . Physical or mental
incapacity that prevents the certificate holder from
performing duties with reasonable skill, competence, or
safety . . . .
The Board answered in the affirmative the question of whether Macy lacked the
physical or mental capacity to perform her duties with reasonable skill,
competence, and safety. The question then becomes whether this determination
was arbitrary, unsupported by substantial evidence or otherwise ran afoul of KRS
13B.150 or Southern Bluegrass Racing, supra. The Franklin Circuit Court
concluded that it was not, and we find no error in that determination.
It is uncontroverted that Macy was convicted on nine counts of
terroristic threatening arising from her repeated threat to kill nine students. While
Macy continues to deny that she made the threats, the Board properly relied on the
conviction as substantial evidence of record supporting its conclusion that Macy
has a physical or mental incapacity that prevents her from performing her duties
with reasonable skill, competence, and safety. It cannot reasonably be argued that
the Board’s reliance on this conviction in support of its action was arbitrary or
otherwise outside the scope of its statutory authority. The question is not whether
Macy was convicted on nine counts of terroristic threatening, because that issue
has reached judicial resolution. Rather, the issue is whether the conviction
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supports the Board’s action. We must conclude that it does. KRS 161.120(1)(e)
expressly permits the Board to revoke a Teaching Certificate under circumstances
where a teacher is physically or mentally unable to ensure student safety, and the
record supports the Board’s action in this regard. The circuit court acknowledged
that Macy’s head injuries, which were beyond her control, were contributing
factors to the conduct resulting in her criminal conviction and termination from
employment. It also properly noted, however, that the Board is charged by statute
with the vitally important public trust of administering a system of professional
standards that will ensure that Kentucky school children receive a quality
education from well qualified professionals. KRS 161.028. Ultimately, the
Legislature has determined that student safety is paramount, and Macy’s
conviction on nine counts of terroristic threatening constitutes substantial evidence
in support of the Board’s Order revoking her Teaching Certificate for 10 years.
Because the Franklin Circuit Court properly determined that Macy’s conviction,
taken alone, was sufficient to support the revocation, the parties’ ancillary
arguments are moot.
For the foregoing reasons, we affirm the Opinion and Order affirming
in part and reversing in part the Kentucky Education Professional Standards
Board’s Findings of Fact, Conclusions of Law and Final Order revoking Macy’s
Teaching Certificate for a period of 10 years.
DIXON, JUDGE, CONCURS.
MOORE, JUDGE, CONCURS IN PART, DISSENTS IN PART,
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AND FILES SEPARATE OPINION:
MOORE, JUDGE: I concur with the majority’s well-reasoned
opinion affirming the circuit court on the issues raised in the direct appeal. I,
however, would reverse the circuit court on the issues raised in the cross-appeal
with the exception of the decision regarding Count 17; therefore, I respectfully
dissent in part as to the cross-appeal.
In the Board’s cross-appeal, it argues that the circuit court erred in
reversing the Board’s decision on Counts 1-2, 4-6, 9-11, 17 and 19. Relevant to
the cross-appeal, KRS 161.120 grants the Board authority to revoke or suspend a
teaching certificate for a variety of reasons including “[d]emonstrating willful or
careless disregard for the health, welfare, or safety of others;” “[i]ncompetency or
neglect of duty;” and “[v]iolating the professional code of ethics for Kentucky
school certified personnel established by the Education Professional Standards
Board through the promulgation of administrative regulation[.]”
Counts 1 and 2 involved Macy’s kicking a chair so that it fell off a
stage while she was teaching. Counts 4 and 5 included Macy’s sponsorship of the
“Loser’s Club,” which was a club started by students who did not qualify for the
school’s Pride Club. Macy was warned not to sponsor the club but choose to do
so. Count 6 was based on Macy’s getting upset with students and responding by
angrily kicking a trash can in the presence of the students. Counts 9 and 10
concern Macy’s writing a fake detention slip for a female student to test the school
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administration regarding whether it would give a harsher penalty for a female
student than a male student. Count 11 charged that Macy, in violation of the
disciplinary policy, transferred several students to another classroom as
punishment. Count 19 included that Macy believed Linda Zellich, Assistant
Superintendent for Hopkins County Schools, was instrumental in the disciplinary
actions being taking against Macy. Macy blamed Zellich for ruining her life and
betraying her. As a result, Macy (1) blocked Zellich and her son at a gas station
pump by pulling her car in front of Zellich’s while Macy verbally berated her; (2)
again using her car, blocked Zellich and her son in their car at the parking lot of the
central office and ranted about how Zellich had lied about her; and (3) made
harassing telephone calls to Zellich’s home and office telephone, including a voice
message that Macy’s termination was going to result in Macy’s death.
In my opinion the Board correctly decided that the conduct for which
these counts were brought against Macy fell into the parameters of KRS 161.120.
Thus, I would reverse on the cross-appeal all issues raised with the exception of
Count 17, on which I would affirm.
BRIEFS FOR APPELLANT/
CROSS-APPELLEE:
BRIEFS FOR APPELLEE/
CROSS-APPELLANT:
Sharon Macy, Pro Se
Madisonville, Kentucky
Robert E. Stopher
Robert D. Bobrow
Louisville, Kentucky
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