COMMONWEALTH OF KENTUCKY, TRANSPORTATION CABINET, JAMES C. CODELL, III, SECRETARY; AND KENTUCKY PERSONNEL BOARD v. DAN HALL
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RENDERED:
November 22, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002244-MR
COMMONWEALTH OF KENTUCKY,
TRANSPORTATION CABINET,
JAMES C. CODELL, III, SECRETARY;
AND KENTUCKY PERSONNEL BOARD
APPELLANTS
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 00-CI-01171
v.
DAN HALL
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, HUDDLESTON, AND KNOPF, JUDGES.
KNOPF, JUDGE:
James C. Codell, III, as Secretary of the
Transportation Cabinet (the Cabinet), and the Kentucky Personnel
Board (the Board) appeal from an opinion and order by the
Franklin Circuit Court which affirmed in part and reversed in
part an order by the Board penalizing Cabinet employee Dan Hall.
The Cabinet argues that the applicable regulations permit it to
require that Hall submit to a psychological evaluation before he
may return to work.
If he refuses to submit to the evaluation,
the Cabinet asserts that it may require him to take unpaid sick
leave.
We agree with the circuit court that the regulations do
not authorize the Cabinet to take these actions, and that Hall
must be reinstated to his former position once his paid sick
leave is exhausted.
Hence, we affirm.
The facts of this action are not in dispute and are
succinctly set forth in the circuit court’s opinion as follows:
Petitioner [Hall] worked as a state employee
for the Transportation Cabinet in the
Pikeville District Office. He is a long-time
state employee who has experienced no
disciplinary actions or reprimands prior to
this time. In the summer of 1999, Mr. Hall
applied for a promotion to the position of
Highway Administrative District Manager, but
the position was awarded to Ms. Wilma Rice.
In August 1999, Mr. Hall’s wife was diagnosed
with cancer. He took sick leave to care for
her and returned to work full-time in midNovember 1999.
On November 11, 1999, Petitioner
requested leave from Ms. Linda Justice, Chief
District Engineer, to work on Veterans’ Day.
Although his request was denied, Petitioner
reported to work. When he learned that other
employees were in the building, he began to
check every office to see who was present and
asked those he encountered who had given them
permission to work. Although the facts are
disputed, some witnesses testified that Mr.
Hall began slamming doors throughout this
search. Additionally, Petitioner himself
admits that he kicked a file cabinet in the
hallway at this time. Ms. Justice testified
that she felt threatened by Mr. Hall’s
actions.
Around this time period Ms. Wilma
Rice decided to relocate the employee sign-in
sheets to the front reception area so that
she could determine who was present in the
office. Mr. Hall refused to sign in at the
new location, stating that people might forge
his signature if it was in that location.
On January 11, 2000, Ms. Linda
Justice presented Petitioner with his 1999
year-end evaluation. Mr. Hall received a
“fails to meet” rating in the area of
employee conduct for his conduct on Veterans’
Day and other incidents. At the meeting, Ms.
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Justice, Ms. Rice, and the Petitioner were
present. When Ms. Justice presented the
“fails to meet” rating, Petitioner refused to
sign the evaluation and pitched it in a
nearby chair. After being asked to refrain
from calling Ms. Rice “honey,” he continued
to do so, and he shouted and pointed his
finger in Ms. Justice’s face. He then left
the room before the evaluation was complete.
Three days later, on January 14,
2000, Mr. Hall signed the evaluation and an
incident report documenting the events of
January 11. At the time, Ms. Justice, who
had known Mr. Hall for several years, asked
him if he wanted to discuss anything with her
because she was concerned about his recent
change in attitude. He was uncommunicative
at the time.
On January 26, 2000, Mr. Hall met
with State Highway Engineer James Yowell and
Douglas Doerting of the Personnel Office to
reconsider his evaluation. Petitioner
acknowledged his behavior in the earlier
meeting with Ms. Justice, including that he
pointed his finger at her during the
evaluation meeting. When Mr. Yowell asked
Petitioner to discuss any matters he believed
to be of concern, Mr. Hall told him that
“things were going on” in the district
office, but he would not elaborate.
On February 1, 2000, Ms. Justice
circulated a memorandum in the district
office advising staff that door alarms were
going to be added to the current locks. She
explained that security concerns were the
reason for this new addition. Mr. Hall had
drafted and circulated a petition objecting
to the door alarms. In response to Ms.
Justice’s memo, he also sent out a memo
advising that any employees who had signed
the petition could withdraw their signatures
if they desired. The language of Mr. Hall’s
responsive memo concerned several employees
who reported their concerns to Ms. Justice at
home that same night.
On February 9, 2000, Doug Doerting
went to the Pikeville District Office to
conduct interviews with employees to
determine the state of affairs. Mr. Doerting
was one of the Transportation Cabinet
representatives in the preparation and
adoption of policy on work place incidents.
At the time, Petitioner was interviewed and
given an opportunity to address issues that
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concerned him. Petitioner again indicated
that “things were going on” in the office but
again refused to give any further explanation
or details.
Mr. Doerting was concerned about
the change in Petitioner’s behavior. Mr.
Hall had recently experienced two traumatic
events with his lack of promotion and his
wife’s cancer. He refused to take
responsibility for his own actions, blaming
others and exhibiting an unwillingness to
cooperate with other employees. He also
exhibited explosive behavior and egocentric
thinking that others were “out to get him.”
At the time, Mr. Doerting believed that Mr.
Hall exhibited certain warning signs which
required definite action on the part of the
Cabinet. He was concerned for the safety of
other employees and contacted Ms. Patsy
Blevins of the Kentucky Employee Assistance
Program to research available resolutions.
He also contacted the Personnel Cabinet
General Counsel’s Office, which recommended
that Mr. Hall be placed on sick leave and
that a psychological evaluation be done to
determine the cause of Petitioner’s problems.
The Personnel’s General Counsel’s
recommendation ultimately resulted in a
February 18, 2000 letter to Petitioner from
the Director of Personnel Services, Betty C.
Hawkins. This letter stated that Petitioner
was being placed on sick leave for a January
11, 2000 incident in which he shouted at
Chief District Engineer, Linda Justice; his
February 2, 2000 memorandum to district
employees referencing acts of violence by
disgruntled employees; and his February 4,
2000 grievance advocating replacement of
district management personnel. The letter
indicated that the Transportation Cabinet and
Personnel Board required Petitioner to remain
off work on accrued sick leave with pay until
he submitted to a psychological evaluation
and the Cabinet found him capable of working
without endangering his own health or the
health of others.
Mr. Hall appealed the February 18,
2000, letter to the Personnel Board, and a
hearing was held. In a September 11, 2000
Order, the Personnel Board adopted the
Hearing Officer’s Findings of Fact,
Conclusions of Law, and Recommended Order
denying Mr. Hall’s appeal.
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On appeal, the circuit court rejected Hall’s argument
that the regulations which permitted the Cabinet to place him on
paid sick leave are unconstitutionally vague.
The court also
found that there was substantial evidence to support the
Cabinet’s finding that Hall’s behavior presented a potential
danger to himself and others.
As a result, the court concluded
that the Cabinet acted within its authority when it required Hall
to take paid sick leave.
However, the circuit court also concluded that the
Cabinet had no authority to require Hall to submit to a
psychological evaluation before returning to work, or that he
continue on unpaid sick leave after his paid leave was exhausted.
The parties agree that 101 Ky. Admin. Regs. [KAR] 2:102 §2(2)(a)
permits an appointing authority to grant or require the use of
accrued sick leave with pay if, among other reasons, an employee
“[w]ould jeopardize the health of himself or others at his work
station because of a contagious disease or demonstration of
behavior that might endanger himself or others . . . .”
The
circuit court focused on the language in 101 KAR 2:102 § 2(2)(b),
which provides that “[a]t the termination of sick leave with pay,
the appointing authority shall return the employee to his former
position.”
The court also noted that the provision relating to
unpaid sick leave does not expressly allow the appointing
authority to require an employee to take unpaid sick leave,1 and
there are no provisions which allow the appointing authority to
impose conditions on an employee’s return to work.
1
101 KAR 2:102 §2(3)(a).
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Consequently, the circuit court found that the Cabinet was
required to reinstate Hall to his former position once his paid
sick leave was exhausted.
This appeal followed.
The Cabinet and the Board argue that the circuit court
misinterpreted the applicable regulations.
The Cabinet contends
that this section must be read in conjunction with the
regulations relating to use of unpaid sick leave.
The Cabinet
concedes that the regulations do not expressly permit it to
require Hall to take unpaid sick leave or to submit to a
psychological examination as a condition of his return to work.
Nevertheless, the Cabinet asserts that these powers are
necessarily implied within the scope of authority granted to it
by the sick-leave regulations.
In addition, the Cabinet contends
that the circuit court’s interpretation of the regulation leads
to an absurd result: it cannot prevent an employee who poses a
risk to other employees from returning to work after he has
exhausted all his sick leave.
Thus, the Cabinet concludes that
it must have the authority to require Hall to remain on unpaid
sick leave unless he submits to a psychological examination.
Judicial review of administrative decisions is about
arbitrariness.2
In Aubrey v. Office of the Attorney General,3 we
stated, "both the circuit court's review and our review . . . is
limited."
[T]he courts do not have the authority to
review the agency decisions de novo. American
2
See Hougham v. Lexington-Fayette Urban County Gov't, Ky. App., 29 S.W.3d 370, 373
3
Ky. App., 994 S.W.2d 516, 518 (1998).
(1999).
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Beauty Homes Corp. v. Louisville and
Jefferson County Planning and Zoning
Commission, [Ky.,] 379 S.W.2d 450, 458
(1964). Judicial review of the administrative
action is confined to a determination of
whether the action taken was arbitrary. City
of Louisville v. McDonald, Ky., 470 S.W.2d
173, 178 (1971). So long as the agency's
decision is supported by substantial evidence
of probative value, it is not arbitrary and
must be accepted as binding by the appellate
court. Starks v. Kentucky Health Facilities,
Ky. App., 684 S.W.2d 5 (1984). Substantial
evidence is defined as evidence of substance
and relevant consequence, having the fitness
to induce conviction in the minds of
reasonable persons. O'Nan v. Ecklar Moore
Express, Inc., Ky., 339 S.W.2d 466 (1960). In
its role as a finder of fact, an
administrative agency is afforded great
latitude in its evaluation of the evidence
heard and the credibility of witnesses,
including its findings and conclusions of
fact. Kentucky State Racing Commission v.
Fuller, Ky., 481 S.W.2d 298, 309 (1972). 4
Because the underlying facts of this action are not in
dispute, the only question before this Court involves a matter of
law.
We conclude that the circuit court’s interpretation of the
sick-leave regulations is correct.
The circuit court merely
applied the plain meaning of the regulations as written and
refused to read in provisions which are not specifically set out.
Although an appointing authority may require an employee to take
paid sick leave, the corresponding regulation relating to unpaid
sick leave conspicuously omits that power.
Furthermore, when read as a whole, the regulations do
not anticipate that the appointing authority will require that
the employee take unpaid sick leave, but that it will be the
employee who will be requesting it.
4
Aubrey, 994 S.W.2d at 518-519.
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Thus, while the appointing
authority may require an employee to provide periodic doctor’s
statements to justify the continued use of unpaid sick leave,5
the regulations are silent as to the appointing authority’s power
to require a medical statement before allowing the employee to
return to work.
Therefore, we agree with the circuit court that
the Cabinet cannot compel Hall to take unpaid sick leave or to
receive a psychological evaluation before it will consider his
return to work.
Finally, we disagree with the Cabinet that this
interpretation leads to an absurd result.
If the Cabinet is
concerned that Hall has demonstrated behavior which might pose a
danger to himself or others, then it may initiate disciplinary
proceedings against him based on that behavior.6
The Cabinet may
not use involuntary sick leave as a substitute for commencing
such proceedings.
Although the Cabinet may have sound reasons
for pursuing the latter course of action, we must agree with the
circuit court that it is not authorized to do so.
Accordingly, the opinion and order of the Franklin
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
Edwin A. Logan
Logan & Gaines, PLLC
Frankfort, Kentucky
Lawrence R. Webster
Pikeville, Kentucky
5
101 KAR 2:102 § 2(3)2(c).
6
See 101 KAR 1:345.
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