LETA AYERS v. BOARD OF EDUCATION OF ALLEN COUNTY, KENTUCKY and KENTUCKY DEPARTMENT OF EDUCATION and BOARD OF EDUCATION OF ALLEN COUNTY, KENTUCKY v. LETA AYERS and KENTUCKY DEPARTMENT OF EDUCATION
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RENDERED: April 19, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2001-CA-000351-MR
LETA AYERS
v.
APPELLANT
APPEAL FROM ALLEN COUNTY CIRCUIT COURT
HONORABLE WILLIAM R. HARRIS, JUDGE
CIVIL ACTION NO. 99-CI-00374
BOARD OF EDUCATION OF
ALLEN COUNTY, KENTUCKY and
KENTUCKY DEPARTMENT OF EDUCATION
APPELLEES
NO. 2001-CA-000413-MR
BOARD OF EDUCATION OF
ALLEN COUNTY, KENTUCKY
v.
APPELLANT
APPEAL FROM ALLEN COUNTY CIRCUIT COURT
HONORABLE WILLIAM R. HARRIS, JUDGE
CIVIL ACTION NO. 99-CI-00374
LETA AYERS and KENTUCKY DEPARTMENT
OF EDUCATION
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; COMBS and HUDDLESTON, Judges.
HUDDLESTON, Judge:
Leta Ayers appeals and the Board of Education
of Allen County, Kentucky, cross-appeals from an Allen Circuit
Court judgment reversing a tribunal’s final order finding that
Ayers was guilty of insubordination while affirming its finding
that she was guilty of conduct unbecoming a teacher and the
tribunal’s
reduction
of
the
suspension
imposed
by
the
superintendent as a sanction.
Ayers is a tenured Title I teacher at James E. Bazzell
Middle School.
Her continuing employment contract has been in
effect since April 20, 1992.
On October 7, 1999, Larry Williams,
Superintendent of the Allen County Public Schools, delivered to
Ayers a written statement of charges against her pursuant to
Kentucky Revised Statutes (KRS) 161.790(3), advising her of his
determination that she had engaged in conduct unbecoming a teacher
and insubordination and thus would be suspended without pay for the
remainder of the 1999-2000 school year.
Ayers’s allegedly unacceptable conduct included cursing
at Tammy Dinkins1 in the presence of two school district employees;
referring loudly to Dinkins as a “bitch” and a “whore” in the
presence of students, two of whom overheard the comments; accusing
fellow teachers of approving, condoning and/or practicing adultery;
and violating a school policy which requires staff members to use
their electronic mail account for educational purposes only by
sending an e-mail to the assistant principal of the middle school
1
Dinkins is married to Barry Dinkins, Ayers’s former
husband.
According to Ayers, Dinkins was responsible for the
demise of her marriage to Barry as Dinkins had an adulterous affair
with Barry during his marriage to Ayers. Dinkins was first employed
by the school as a substitute teacher in August 1999. Allegedly,
Dinkins has assaulted Ayers on two prior occasions which predated
Dinkins’s employment with the school by six or seven years. On
September 10, 1999, Ayers notified the school’s assistant principal
of her personal history with Dinkins and indicated that she would
be extremely uncomfortable if Dinkins continued working there.
-2-
which was not work-related and which contained statements that
could
be
considered
defamatory
as
they
referred
teacher’s (not Dinkins) alleged adultery.
to
another
Williams also cited
Ayers’s failure to appreciate the gravity of her actions — despite
the fact that he emphasized the seriousness of the situation to her
— as further justification for the sanction.
Pursuant to KRS 161.790(3), Ayers gave notice of her
intent to answer Williams’s charges, at which point the chief state
school
officer
appointed
a
tribunal
(as
provided
for
in
KRS
161.790(4)) that conducted an administrative hearing2 in accordance
with KRS Chapter 13B on November 30 and December 1, 1999.
hearing,
twelve
exhibits
were
introduced,
fourteen
testified and a 428 page transcript was generated.
At the
witnesses
After hearing
the evidence presented by both sides and closing arguments of
counsel,
the
tribunal
rendered
written
findings
of
fact,
conclusions of law and a final order.
In relevant part, the tribunal’s factual findings are as
follows:
2.
On Thursday, September 16th, 1999, Ayers referred to
Tammy Dinkins as a bitch and a whore in the presence of
students, and Ayers comments were overheard by school
district employees and by students.
3.
On
Sunday,
September
19th,
1999,
Ayers
sent
electronic mail to the assistant principal’s address at
2
At Ayers’s request, the hearing before the tribunal was
closed. Ky. Rev. Stat. (KRS) 161.790(5). There is no provision in
the statute which requires the tribunal’s decision or our review of
it to be kept confidential.
-3-
the school, and in that mail she raised issues regarding
her ex-husband and his current wife and made statements
regarding another teacher’s alleged adultery.
4.
On Friday, September 17th, 1999, teachers came into
Ayers’s
classroom
uninvited,
and
Ayers
did
nothing
improper while they were in the room.
5.
On that same day, the assistant principal did not
have to come into the classroom to restore calm, and
without the provocation by the other faculty members,
Ayers would not have exhibited behavior which would have
required her to be sent home.
6.
Ayers knew or should have known of school board
policy 08.2323 relating to the use of electronic mail,
but she did not violate that policy by sending the
electronic mail to the assistant principal.
7. The electronic mail included inappropriate statements
regarding fellow teachers.
8.
the
There was a written record of teacher performance by
superintendent,
principal,
or
other
supervisory
personnel of the district in support of the charge of
insubordination, including the requirement in her teacher
contract that she perform in a thorough and professional
manner and in the school district’s policy regarding the
use of electronic mail.
* * *
10.
Based
upon
the
testimony
and
the
evaluations
presented at the hearing, other than this one incident,
-4-
Ayers has been an exemplary teacher for the past 11
years.
Based
on
these
findings,
the
tribunal
reached
its
conclusions of law which, in pertinent part, are set forth below:
5.
Ayers is guilty of conduct unbecoming a teacher in
violation of KRS 161.790 for using inappropriate language
in the presence of students and faculty and for sending
electronic mail which contained unprofessional comments
about fellow colleagues.
6.
Ayers is guilty of insubordination in violation of
KRS 161.790 for the inappropriate use of language in the
presence of students and faculty.
7.
Based upon the fact that Ayers has been an exemplary
teacher
for
the
past
11
years,
and
based
upon
the
school’s failure to act on Ayers’s stated concerns about
her
relationship
suspension
imposed
with
by
Dinkin,
the
the
length
superintendent
of
the
was
not
appropriate.
Ultimately, the tribunal set forth its final order finding Ayers
guilty of both conduct unbecoming a teacher and insubordination and
imposing a 70-day suspension as opposed to the 139-day suspension
imposed by Williams.
Acting pursuant to KRS 161.790(8), Ayers sought judicial
review of the tribunal’s final order in the circuit court.
As such
a proceeding is expressly designated as an appeal in the statute,
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the court addressed all of the issues on their merits,3 denying
both parties’ motions for summary judgment.
On appeal to the circuit court, Ayers maintained that
both her use of derogatory language on September 16, 1999, and her
subsequent comments about adultery which specifically referenced a
fellow
employee
are
constitutionally
protected,4
that
the
insubordination charge was not supported by written records of
teacher performance as mandated by the governing statute and that
the tribunal’s actions amounted to an abuse of discretion as they
were arbitrary and capricious.
She urged the court to vacate the
tribunal’s order and award her back pay.
The Board, on the other hand, argued that the tribunal’s
findings and conclusions as to both charges against Ayers were
consistent with applicable authority and the evidence presented at
the hearing.
However, the Board contested the propriety of the
tribunal’s decision to reduce the length of Ayers’s suspension as
it was not accompanied by a finding that the sanction imposed by
Williams
was
disproportionate.”
“arbitrary,
unfair,
discriminatory,
or
The Board sought to have the court affirm the
tribunal’s finding that Ayers was guilty of conduct unbecoming a
teacher and insubordination, reverse the tribunal’s final order as
3
In so doing, the court observed that it would consider
merits of the Board’s argument since no one raised the issue of
Board’s failure to effectuate a cross-appeal which it had
inherent right to do under Reis v. Campbell County Board
Education, Ky., 938 S.W.2d 880 (1996).
4
the
the
an
of
Ayers’s constitutional claims are based on the freedoms
guaranteed by Sections 1 and 5 of the Kentucky Constitution and the
First Amendment to the United States Constitution.
-6-
to the reduced suspension and reinstate the remainder of the
sanction imposed by Williams.
KRS 13B.150, which governs the scope of the circuit
court’s review of an agency order and specifies the permissible
grounds for reversal, explicitly forbids the court to substitute
its judgment for that of the agency as to the weight of the
evidence on questions of fact and authorizes the court to reverse
the agency’s final order in whole or in part, only if it determines
the order is:
(a)
In
violation
of
constitutional
or
statutory
provisions;
(b)
In
excess
of
the
statutory
authority
of
the
[tribunal];
(c) Without support of substantial evidence on the whole
record;
(d) Arbitrary, capricious, or characterized by abuse of
discretion;
(e)
Based
on
an
ex
parte
communication
which
substantially prejudiced the rights of any party and
likely affected the outcome of the hearing;
(f) Prejudiced by a failure of the person conducting a
proceeding to be disqualified pursuant to KRS 13B.040(2);
or
(g) Deficient as otherwise provided by law.5
5
KRS 13B.150(2).
-7-
Guided by this limited scope of review, the circuit court
concluded that it was obliged to accept the tribunal’s factual
findings as they were supported by substantial evidence, but was
not required to give deference to the tribunal as to the legal
questions of whether Ayers’s actions amounted to conduct unbecoming
a
teacher
and
insubordination.
Giving
the
words
in
KRS
161.790(1)(b) their ordinary meaning, the court readily determined
that Ayers’s conduct on September 16, 1999, as revealed by the
tribunal, constitutes conduct unbecoming a teacher.
As to the
insubordination charge, the court concluded that Ayers’s words and
behavior on September 16 as found by the tribunal do not amount to
insubordination because there was no evidence that she defied or
disobeyed any person in authority and the record did not reflect
that the Board had established any rule or regulation which Ayers
violated.
This determination rendered moot the issue of whether a
written record of Ayers’s performance had been provided as required
by KRS 161.790(2).
Next,
the
court
addressed
the
merits
of
Ayers’s
constitutional arguments, first observing that no constitutional
arguments were raised before the tribunal and expressing its doubt
as to whether she could properly assert those claims for the first
time in that proceeding.
“[W]here
no
question
of
fact
is
at
issue
and
only
questions of law are involved, the arm of the court may not be
shortened” in its review of administrative actions.6
6
However,
Kendall v. Beiling, 295 Ky. 782, 175 S.W.2d 489, 491
(1943).
-8-
“[a]s a general rule, exhaustion of administrative remedies is a
jurisdictional prerequisite to seeking judicial relief.”7
One of
the exceptions to this requirement is that a party is not required
to exhaust such remedies when to do so “would be an exercise in
futility.”8
With respect to review of constitutional issues, the
Kentucky Supreme Court has distinguished between facial and asapplied
challenges,
finding
that
exhaustion
of
administrative
remedies is unnecessary when attacking the constitutionality of a
statute or a regulation as void on its face as an administrative
agency cannot decide constitutional issues of that nature.9
Thus,
to raise the issue of whether a statute or regulation is facially
valid at the administrative level would be futile.
This exception does not apply here as Ayers has alleged
that the statute in question is unconstitutional as applied to her,
i.e., with her speech and conduct in the presence of students and
faculty on September 16, 1999, and the message conveyed in her email to the assistant principal on September 19, 1999, she was
exercising her First Amendment rights and the finding that her
behavior
constituted
conduct
unbecoming
a
teacher
and
insubordination under KRS 161.790 infringed upon those rights.
In
that context, exhaustion of administrative remedies is not futile.
“Quite
the
contrary,
it
is
the
administrative
action
which
7
Commonwealth v. DLX, Inc., Ky., 42 S.W.3d 624, 625 (2001).
8
Id. at 626.
9
Id.
-9-
determines the extent, if any, of the constitutional injury.”10
Accordingly, Ayers was required to raise her constitutional claims
before the tribunal.
However, like the circuit court, we will, in
an abundance of caution, address the arguments on their merits,
allowing for the possibility that the issues may arise at a later
date.
In
reducing
the
length
of
Ayers’s
suspension,
the
tribunal relied upon its findings that Ayers had been an exemplary
teacher for eleven years and that the Board failed to take action
when she expressed concern over the prospect of having to work in
proximity with Dinkins.
As those findings were supported by
substantial evidence, the court concluded that the tribunal’s
decision was not arbitrary and had to be affirmed.
Noting Ayers’s failure to cite authority in support of
her claim that a teacher’s use of profane language in the presence
of students and fellow employees and derogatory comments about a
fellow employee’s private life merit constitutional protection and
the fact that she was not being punished for her beliefs or
activities in furtherance of those beliefs, the court rejected
Ayers’s argument that her conduct amounted to an exercise of
religion.
Similarly,
with
respect
to
the
freedom
of
speech
argument, the court again noted an absence of citation to authority
and concluded that Ayers’s remarks could not properly be classified
as protected speech since she was not being punished for having or
expressing her belief that Dinkins was not fit to serve as a
teacher, but rather her choice of words and the utterance of those
10
Id.
-10-
words in the presence of students and fellow employees.
As to
Ayers’s claim that her words and conduct constituted a petition for
redress, the court determined that, while the marital infidelity of
public school teachers is arguably a public concern, there was no
showing that Ayers’s interest in disclosing such conduct by a
fellow employee outweighed the right of the Board to promote the
efficiency of the public service which it performs through its
employees.
Ayers has appealed the determination that she was guilty
of conduct unbecoming a teacher for which she was suspended for
seventy days, while the Board has cross-appealed requesting that
this Court reverse the circuit court’s judgment reversing the
tribunal’s finding of insubordination and affirming the tribunal’s
reduction
of
Ayers’s
suspension
and
reinstate
the
original
suspension.
In the present case, the circuit court adopted the
tribunal’s findings of fact without modification.
“‘The position
of the circuit court in administrative matters is one of review,
not of reinterpretation.’”11 If administrative findings of fact are
based upon substantial evidence, those findings are binding upon
the
appellate
court
and
the
only
question
remaining
for
the
appellate court to address is whether the agency applied the law to
11
Kentucky Bd. of Nursing v. Ward, Ky. App., 890 S.W.2d 641,
642 (1994) (citation omitted). As noted by the circuit court, this
case predates KRS Chapter 13B. Under KRS 13B.140 (incorporated by
reference into KRS 161.790(8)), the court was required to accept
the tribunal’s factual findings if they were supported by
substantial evidence.
-11-
those facts correctly.12
If an administrative agency bases its
ruling on an incorrect view of the law, the reviewing court may
substitute its judgment for that of the agency.13
When reviewing an agency’s action, the court is concerned
with arbitrariness, that is, a decision which is not supported by
substantial evidence.14 Substantial evidence is defined as evidence
which, when taken alone or in light of all the evidence, has
sufficient probative value to induce conviction in the minds of
reasonable persons.15
In weighing
whether an agency’s decision is
supported by substantial evidence, a reviewing court must adhere to
the principle that the factfinder is afforded great latitude in its
evaluation
of
the
evidence
heard
witnesses appearing before it.16
and
the
credibility
of
the
There may be substantial evidence
to support an agency’s decision even though a reviewing court may
have arrived at a different conclusion.17
If an agency’s findings
are supported by substantial evidence, “the findings will be
upheld, even though there may be conflicting evidence in the
record.”18
12
Id.
13
Id.
14
Id.
15
Bowling v. Natural Resources, Ky. App., 891 S.W.2d 406, 409
(1994).
16
Kentucky State Racing Comm’n v. Fuller, Ky., 481 S.W.2d
298, 308 (1972).
17
Id.
18
Kentucky Commission on Human Rights v. Fraser, Ky., 625
S.W.2d 852, 856 (1981).
-12-
Guided by this background regarding our scope of review,
we turn our attention to an examination of the circuit court’s
action and ruling. Initially, we agree with the court’s assessment
in that most of the evidence is undisputed as to the significant
details of what Ayers said and did with the controversy being
centered around why she did it.
Suffice it to say that Ayers
admitted in her testimony before the tribunal that she called
Dinkins a “bitch” and a “whore” on September 16, 1999, in a hallway
on the second floor of the middle school, with approximately thirty
students in the immediate vicinity and within hearing range of at
least two students and three fellow employees.19
While Ayers
testified that she did not intend for the students to hear her
comments, upon learning that at least one student had overheard her
remarks, she responded that “the kids ought to know what she
[Dinkins] is or something, or something to that extent.” Testimony
from students and employees clearly establishes that Ayers was
visibly upset at the time she spoke those words and, consequently,
she
said
them
in
a
tone
louder
than
one
used
that,
on
the
in
normal
conversation.20
Likewise,
Ayers
concedes
evening
of
September 19, 1999, she sent an e-mail message to the assistant
principal at his school office which the principal received the
19
According to Ayers’s testimony, she “ducked” behind the
water fountain in order to avoid Dinkins when she saw her coming
down the hall and her negative comments about Dinkins were directed
to but one other faculty member.
20
Allegedly, she was also “shaking her finger” at Dinkins as
she made the remarks that Dinkins admittedly did not hear.
According to Ayers, she may have been pointing.
-13-
next morning in the assistant principal’s absence.
While the e-
mail in question began as an incident report explaining the events
of Friday, September 17, 1999, it evolved into a message detailing
her
abhorrence
of
adultery
and
the
religious
basis
for
her
feelings. Admittedly, Ayers went beyond expressing her own beliefs
in order to explain her actions and criticized a fellow employee by
name, labeling the employee’s recent marriage “a celebration of
adultery.”21
Although there are discrepancies among the eyewitness
accounts of the incident on September 16 and somewhat different
versions of the subsequent incidents, the above information is
unchallenged.
Standing alone it constitutes substantial evidence
to support the tribunal’s factual findings.
As such, the circuit
court properly left the findings undisturbed.
In determining that Ayers engaged in “conduct unbecoming
a teacher” because she used profanity in the presence of students
and faculty and made inappropriate comments about a fellow employee
in an e-mail message, the tribunal resolved a question of law.
As
such, we are not required to grant deference to the tribunal’s
judgment.22
The question then becomes whether Ayers’s remarks and
conduct on September 16 as found by the tribunal can properly be
classified as conduct unbecoming a teacher in accordance with KRS
161.790(1)(b).
No statutory definition or judicial interpretation of the
term “conduct unbecoming a teacher” has been cited, nor is the
21
A copy of the e-mail message is included in the record and,
as observed by the circuit court, “it speaks for itself.”
22
See Mill Street Church of Christ v. Hogan, Ky. App., 785
S.W.2d 263 (1990).
-14-
Court aware that such exists in the context at issue, i.e., when
the unacceptable speech and behavior occurred on school premises
during school hours.
In Board of Education of Hopkins County v.
Wood,23 the Supreme Court provided some guidance on the subject.
In holding that tenured teachers could be discharged under KRS
161.790 for smoking marijuana with two fifteen-year-old students
off-campus, the Court observed that one standard for judging a
teacher’s conduct requires consideration of “such matters as the
likelihood that the conduct may have adversely affected students or
fellow teachers, and the proximity or remoteness in time of the
conduct.”24
When the conduct does not
involve the teacher’s
professional competency in the classroom, it should have some nexus
to the teacher’s occupation.25
Here, there is some debate as to the extent of harm that
Ayers’s words actually inflicted on the students, but no credible
argument can be made that the potential for harm did not exist.
As
to the proximity consideration, again, while there may be some
dispute regarding the particulars, the testimony offered at the
hearing
established
that
several
faculty
members
and,
most
importantly, a group of students were nearby when Ayers made the
inappropriate
remarks
about
Dinkins,
and
several
of
those
individuals overheard what she said regardless of her intentions.
The requisite nexus exists.
While we are not unsympathetic to
Ayers’s dilemma, the fact remains that she is a teacher entrusted
23
Ky., 717 S.W.2d 837 (1986).
24
Id. at 840 (citation omitted).
25
Id.
-15-
with
the
supervision
and
education
of
children
and
that
responsibility is accompanied by an expectation that she will set
a good example.
Ayers did a disservice to herself as well as the
students who view her as a role model by exhibiting unprofessional,
impermissible behavior.
With respect to the content of the e-mail message Ayers
sent to the assistant principal, even giving her the benefit of the
doubt as to its intended purpose and recipients, her gratuitous
criticism of a fellow employee was unnecessary and impermissible.
Giving the words of the statute their ordinary meaning and keeping
in mind the aforementioned considerations, Ayers’s inappropriate
behavior in both instances amounted to conduct unbecoming a teacher
for which she can be punished.
The next issue for consideration is whether, as a matter
of
law,
Ayers’s
utterances
on
September
16
also
insubordination as set forth in KRS 161.790(a).26
amounted
to
If so, then the
inquiry becomes whether the requirement that a “written record”
documenting such insubordination be provided as mandated by KRS
161.790(2) has been met.
For ordinary purposes, insubordination is defined as the
“[r]efusal to obey some order which a superior officer is entitled
to give and have obeyed.
disregard
of
employer.”27
the
lawful
Under
this
Term imports a wil[l]ful or intentional
and
reasonable
definition,
instructions
Ayers
is
not
of
guilty
26
the
of
No argument has been raised that the two charges are
mutually exclusive.
27
Black’s Law Dictionary, pg. 801 (6th ed.
-16-
1990).
insubordination as there was no order and there is no allegation
that she intentionally ignored specific directives.
However, the
inquiry does not end there because, in addition to the refusal to
recognize or obey authority in the performance of duties, the
statute elaborates on the meaning of insubordination as follows:
“Insubordination, including but not limited to violation of the
school laws of the state or administrative regulations adopted by
the Kentucky Board of Education, the Educational Professional
Standards Board, or lawful rules and regulations established by the
local board of education for the operation of schools . . . .”28
Like the court below, we have searched the record to no
avail for evidence establishing the existence of any such rules and
regulations promulgated by the Board which forbid the type of
conduct Ayers displayed on September 16. In lieu of such evidence,
the Board argues that Ayers’s behavior violated her obligation to
perform in a “professional manner” as required by her continuing
employment contract.
Such an argument is not persuasive since the
statute does not equate an employment contract with “rules and
regulations.”
If a statute is intelligible on its face, as is the
case here, we are not at liberty to interpret it in a manner at
variance with its explicit language.29 When determining legislative
intent, a court must refer to “‘the words used in enacting the
28
KRS 161.790(1)(a).
29
Commonwealth v. Allen, Ky., 980 S.W.2d 278 (1998).
-17-
statute rather than surmising what may have been intended but was
not expressed.’”30
Because the record does not demonstrate that the Board
had a rule or regulation in place addressing the type of conduct in
question, it stands to reason that Ayers could not have disregarded
one.
In light of that fact and in the absence of any evidence that
Ayers defied or disobeyed any person in authority, as a matter of
law her conduct did not rise to the level of insubordination.
Such
a determination renders any discussion regarding the statutory
requirement that a written record of performance be provided
unnecessary.
We will now address Ayers’s remaining claims alleging
that her actions were protected as an exercise of her First
Amendment right to freedom of religion, freedom of speech and
freedom to petition the government for redress of grievances.
Ayers’s argument that her words and actions on September
16 and the e-mail she sent on September 19 qualify as an exercise
of religion is premised mainly on Hooks v. Smith.31
reliance is misplaced.
However, her
In Hooks, the findings of the trial court
indicated that Hooks’s exercise of her religious beliefs was a
motivating factor in her.
This Court remanded the case to the
trial court to determine whether a preponderance of the evidence
showed that she would have been demoted even in the absence of what
30
Id. at 280 (citation omitted).
31
Ky. App., 781 S.W.2d 522 (1989).
-18-
the Board admitted was protected conduct.32
Nothing in that case
suggests that a teacher’s use of profane language in the presence
of students and fellow employees or passing judgment on a fellow
employee’s private conduct in correspondence to someone in a
position
of
authority
comes
religious activities.
under
the
penumbra
of
protected
Here, Ayers professed exercise of her
religious beliefs played no role in the tribunal’s determination
that she was guilty of the charges brought against her as evidenced
by the tribunal’s findings. None of the authorities cited by Ayers
justifies a finding that her words and conduct merit constitutional
protection.
It
must
be
remembered
that
Ayers
has
not
been
disciplined for her beliefs or for activities in furtherance of
those beliefs.
Rather, she was suspended because of the time,
place and manner in which she chose to express herself.
Assuming,
arguendo,
that
Ayers’s
comments
can
be
construed as an expression of her religious beliefs, her speech is
not protected as the First Amendment embraces two distinct but
related concepts — the freedom to believe and the freedom to act.33
The first is absolute while the second, which is at issue here, is
not.34 Although Ayers’s denouncement of Dinkins and other employees
might stem from her sincere convictions and moral code, that does
not transform the conduct which resulted in her suspension into an
exercise
of
religion
“Conscientious
deserving
scruples
have
of
not,
32
Id. at 524.
33
Hooks, supra, n. 31, at 524.
34
Id.
-19-
constitutional
in
the
course
protection.
of
the
long
struggle for religious toleration, relieved the individual from
obedience
to
a
general
law
not
restriction of religious beliefs.”35
aimed
at
the
promotion
or
When prohibiting the exercise
of religion is not the object of a law or regulation but merely the
incidental effect of “a generally applicable and otherwise valid
provision, the First Amendment has not been offended.”36
Ayers’s assertion that her words and conduct on September
16 and the September 19 e-mail message amount to protected free
speech and/or a petition for redress presents a closer question.
Arguably,
there
is
a
connection
between
Ayers’s
conduct
on
September 16 and her September 19 e-mail and her right to have and
express an opinion concerning Dinkins’s suitability to serve as a
teacher and express opposition to allegedly immoral conduct engaged
in by school employees on the basis that it is adverse to the
students’ best interests.
However, we agree with the circuit
court’s reasoning as to these issues and also conclude that her
arguments must fail for two reasons.
First, regarding Ayers’s conduct on September 16, the
same analysis that dispensed with her freedom of religion claim
also applies here.
Ayers is being punished for when, how and where
she voiced her concerns, not for having or expressing her belief
that Dinkins is not fit to teach and that infidelity is indicative
of a teacher’s lack of moral fitness to perform her duties.
In the
absence of any authority to substantiate her claim that, in this
35
Employment Division, Dep’t of Human Resources of Oregon v.
Smith, 494 U.S. 872, 879, 110 S.Ct. 1595, 1600, 108 L.Ed.2d 876
(1990).
36
Id.
-20-
context, her chosen words amount to speech intended to receive
protection, we decline to so hold.
With respect to the e-mail message at issue (which the
tribunal determined had an adequate educational purpose), in order
to establish that her constitutional right to free speech has been
violated, Ayers must demonstrate that the “speech” contained in her
message addresses a matter of public concern, and that her interest
in expressing that concern outweighs the Board’s interest in
promoting the efficiency of the public service which it performs
through its employees.37
If she were able to so demonstrate, Ayers
would then have the burden of showing that the speech was a
“motivating” factor in Williams’s decision to suspend her.38
Even if it is assumed that there is a sufficient
correlation between marital infidelity and fitness as a teacher so
as to constitute a matter of public concern, Ayers has made no
showing that her interest in disclosing that a fellow employee has
engaged in such conduct outweighs the Board’s interest in promoting
the efficient performance of its employees by ensuring that their
private lives are not exposed and subjected to denunciation in the
workplace.
In regard to the reduction of Ayers’s suspension, the
Board argues that the tribunal acted improperly since, having found
Ayers guilty of conduct unbecoming a teacher, it was obliged to
impose the sanction recommended by Williams as it failed to make a
37
Bailey v. Floyd County Board of Education, 106 F.3d 135,
144 (6th Circ. 1997).
38
Id.
-21-
finding that his punishment was arbitrary, unfair, discriminatory
or disproportionate.
controlling
authority
While we agree with the Board as to the
on
this
issue,
we
disagree
with
its
In Gallatin County Board of Education v. Mann,39
the
interpretation of that case.
question before this Court was whether a tribunal established
pursuant to KRS 161.790 can modify the employment sanctions imposed
by a superintendent on a tenured, certified teacher.
In reversing
the trial court, we found that the tribunal’s decision to impose a
lesser sanction in that instance was “unsupported by substantial
evidence, and contrary to the tribunal’s express findings of
fact.”40
However, we emphasized that a tribunal has the “inherent
authority to affirm, reject, or modify an employment sanction
imposed by the superintendent.”41
“The tribunal’s power to make
findings of fact inherently includes the authority to reach a
conclusion different than that reached by the superintendent.”42
Accordingly, KRS 161.790 does not limit the authority of the
tribunal to choose the most appropriate sanction as long as its
action is not arbitrary, i.e., unsupported by substantial evidence,
with the exception that it prohibits the tribunal from considering
a private reprimand.43
39
Ky. App., 971 S.W.2d 295 (1998).
40
Id. at 296.
41
Id.
42
Id. at 300.
43
Id. This issue has been more thoroughly addressed in a
“to be published” decision which is not yet final,
(continued...)
recent
-22-
The present case is clearly distinguishable from Mann in
that, here, the tribunal expressly found that Ayers had been an
exemplary teacher for eleven years and that the Board’s employees
had failed to act on Ayers’s voiced concerns over the prospect of
working in proximity with Dinkins.
Relying on those findings, the
tribunal concluded that the sanction imposed by Williams was not
appropriate. As we are persuaded that those findings are supported
by
substantial
evidence,
the
tribunal
was
acting
inherent authority when it reduced Ayers’s suspension.
within
its
Reasonable
minds can differ as to whether Williams’s recommended sanction was
too harsh and/or the reduced sanction imposed by the tribunal was
too lenient.
However, the tribunal’s imposition of the reduced
sanction is supported by a sufficient factual predicate and, as
such, it cannot be deemed arbitrary.
The court’s order reversing the tribunal’s final order to
the
extent
affirming
that
as
to
Ayers
the
was
finding
found
that
guilty
she
is
of
insubordination,
guilty
of
conduct
unbecoming a teacher, and affirming the reduced suspension (70
days) is affirmed.
ALL CONCUR.
43
(...continued)
Frankhauser v. Cobb, Ky. App., ___ S.W.3d ___ (rendered 3/29/02).
-23-
BRIEF FOR APPELLANT/ CROSSAPPELLEE LETA AYERS:
BRIEF FOR APPELLEE/CROSSAPPELLANT BOARD OF EDUCATION
OF ALLEN COUNTY, KENTUCKY:
Dennis F. Janes
SEGAL STEWART CUTLER LINDSAY
JANES & BERRY PLLC
Louisville, Kentucky
Michael A. Owsley
W. Cravens Priest III
ENGLISH, LUCAS, PRIEST &
OWSLEY
Bowling Green, Kentucky
James Secrest, Jr.
Secrest & Secrest
Scottsville, Kentucky
NO BRIEF FILED FOR APPELLEE
KENTUCKY DEPARTMENT
OF EDUCATION
-24-
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