COMMONWEALTH OF KENTUCKY, STATE BOARD FOR ELEMENTARY AND SECONDARY EDUCATION; GENE WILHOIT, IN HIS OFFICIAL CAPACITY AS SUCCESSOR TO THOMAS BOYSEN, AS COMMISSIONER OF EDUCATION; AND MICHAEL KING, FORMER ACTING SUPERINTENDENT OF THE LETCHER COUNTY SCHOOLS FOR AND DURING THE ADMINISTRATION OF THE LETCHER COUNTY SCHOOL SYSTEM BY THE KENTUCKY STATE BOARD FOR ELEMENTARY AND SECONDARY EDUCATION v. TRUMAN HALCOMB; AND PHILLIP BROWN
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RENDERED: JULY 9, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
OPINION OF MAY 7, 2004, WITHDRAWN
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001308-MR
COMMONWEALTH OF KENTUCKY, STATE BOARD
FOR ELEMENTARY AND SECONDARY EDUCATION;
GENE WILHOIT, IN HIS OFFICIAL CAPACITY AS SUCCESSOR
TO THOMAS BOYSEN, AS COMMISSIONER OF EDUCATION;
AND MICHAEL KING, FORMER ACTING SUPERINTENDENT
OF THE LETCHER COUNTY SCHOOLS FOR AND DURING
THE ADMINISTRATION OF THE LETCHER COUNTY SCHOOL
SYSTEM BY THE KENTUCKY STATE BOARD FOR
ELEMENTARY AND SECONDARY EDUCATION
v.
APPELLANTS
APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT, III, JUDGE
ACTION NO. 95-CI-00194
TRUMAN HALCOMB; AND
PHILLIP BROWN
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
JOHNSON, MINTON AND TACKETT, JUDGES.
JOHNSON, JUDGE:
The Commonwealth of Kentucky, State Board for
Elementary and Secondary Education (State Board) has appealed
from an order of the Letcher Circuit Court entered on March 28,
2002, which found that Truman Halcomb and Phillip Brown, the
appellees herein, had not received notice of their scheduled
hearing date in accordance with the procedural requirements of
KRS1 161.765(2).
The trial court ordered that Halcomb and Brown
be reinstated to their former positions and that the State Board
provide compensation to Halcomb and Brown for “all lost wages
and other benefits” since their “wrongful termination.”2
Having
concluded that the procedural notice requirements of KRS
161.765(2) were not followed, but that the trial court erred by
ordering the State Board to compensate Halcomb and Brown with
back-pay, we reverse and remand for further proceedings.
The relevant facts of this case are not in dispute.
Halcomb and Brown were both employed by the Letcher County Board
beginning in approximately 1963.
Halcomb began his employment
as a classroom teacher, was promoted to assistant principal in
1981, and eventually assumed an administrative position as
elementary supervisor in 1986.
Brown also began his employment
as a classroom teacher, but was later promoted to assistant
principal, principal, and finally to secondary supervisor.
1
Kentucky Revised Statutes.
2
The trial court ordered the Board of Education of Letcher County, Kentucky
(Letcher County Board) to reinstate Halcomb and Brown to their former
positions. The Letcher County Board appealed that order in a separate appeal
(2002-CA-001375-MR) which has been dismissed pursuant to a settlement
agreement.
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Brown was employed as secondary supervisor for approximately 19
years.
On June 9, 1994, the State Board and the Letcher
County Board entered into an agreed order whereby the Letcher
County Board would become a “state-managed district” pursuant to
KRS 158.785.
The basis for this agreed order was that an audit
of the school system had revealed a pattern of ineffective and
inefficient administration of the school district.
Specifically, the audit disclosed that a continuous decline in
student enrollment within the school system had resulted in an
instructional oversight problem, i.e., the administrator to
student ratio was excessive.
Initially, the Letcher County
Board was permitted to actively participate in the development
and implementation of an improvement plan.
Shortly before the State Board and the Letcher County
Board entered into the agreed order, but subsequent to the
finding that the Letcher County school system had deficiencies
with regard to instructional oversight, Michael King, theninterim superintendent of Letcher County Schools,3 recommended
combining four central office positions into three “new”
positions.
In addition, King recommended that Halcomb and Brown
be laterally transferred into two of these three positions.
3
King’s position as interim superintendent lapsed when the Letcher County
Board resumed local control of the school district.
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However, on April 24, 1995, King was called to meet
with, among others, then-Commissioner of Education Dr. Thomas
Boysen.4
At this meeting, a decision was made to eliminate five
positions in the central office, two of which were held by
Halcomb and Brown.
By individual letters dated April 24, 1995,
Halcomb and Brown were informed that their respective positions
were being abolished pursuant to the school district’s
reorganization plan.
These letters also informed Halcomb and
Brown that they were being demoted to the position of classroom
teacher.5
By identical notices dated May 2, 1995, Halcomb and
Brown informed King pursuant to KRS 161.765(2), that they were
requesting a hearing regarding their respective demotions.
By
letters dated May 5, 1995, King sent Halcomb and Brown notices
acknowledging receipt of their requests for a hearing.
Specifically, King’s letters stated in pertinent part as
follows:
In accordance with KRS 161.765, your
hearing is being scheduled for May 15, 1995,
which is 20 days after you received notice
and a written statement of the grounds for
demotion on April 25, 1995.
4
Commissioner Boysen was succeeded by Wilmer Cody in 1996, who was later
succeeded by Gene Wilhoit in 2000.
5
Neither Halcomb nor Brown was accused of any wrongdoing; their demotions
stemmed solely from the decision to reorganize the central office in response
to declining student enrollment.
-4-
The hearing was conducted as scheduled on May 15,
1995, before Debbie Hendricks, a hearing officer for the State
Board.6
Following the hearing, Hendricks rendered a decision
upholding the demotions of Halcomb and Brown.
On May 25, 1995, after Halcomb’s and Brown’s
applications for three other administrative positions within the
school system were denied, both men served notice through King
that they were electing to retire in order to avoid a reduction
in their retirement benefits.
In these letters, Halcomb and
Brown informed King that although they were retiring, they were
not waiving any of their rights with respect to the demotions.
On June 9, 1995, Halcomb and Brown filed a complaint
in the Letcher Circuit Court, naming as party defendants the
State Board, the Letcher County Board, King, in his official
capacity as interim-superintendent, and Commissioner Boysen, in
his official capacity as Commissioner of Education.7
In their
complaint, Halcomb and Brown alleged the following:
1.
That they were denied due process of law
under the Fourteenth Amendment to the
United States Constitution and Section 2
6
Three days prior to the date of the hearing, on May 12, 1995, Commissioner
Boysen issued a written order notifying the Letcher County Board that
Commissioner Boysen, through his appointees and management team, would be
making “all decisions previously made” by the Letcher County Board, which
effectively suspended all decision-making authority of the Letcher County
Board.
7
James Slone, who was also an administrator in the Letcher County school
system, originally joined with Halcomb and Brown in their complaint, but he
withdrew as a plaintiff prior to the entry of the order from which the State
Board has appealed.
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of the Kentucky Constitution when the
named defendants failed to adequately
provide them with a complete statement
regarding the reasons for their demotions
as required by KRS 161.765(2)(b).
2.
That they were denied due process of law
due to their assertion that Hendricks was
“a legally biased hearing officer.”
3.
That in violation of KRS 161.765(2), the
hearing was held less than 20 days after
they had requested a hearing from King,
which denied them an opportunity to
prepare an adequate defense.
4.
That no legal cause was shown which would
have justified the demotion.
5.
That in violation of KRS 161.765 and KRS
161.760, the named defendants failed to
provide written notice of the final
action taken following the hearing.
6.
That Commissioner Boysen lacked the
authority to demote Halcomb and Brown,
thus rendering said demotions void.
On June 29, and July 3, 1995, the named defendants
filed motions to dismiss, “on grounds of improper venue and lack
of jurisdiction.”
They argued that since the State Board had
been named as a party defendant, KRS 452.430 required the cause
of action to be brought in the Franklin Circuit Court.
On July
25, 1995, the trial court entered an order denying the motions
to dismiss, after finding that venue was proper and that the
trial court had jurisdiction over the matter.
On June 19, 1996, the named defendants filed a motion
requesting that Judge Samuel T. Wright, III recuse himself from
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presiding over the matter.
As the basis for the motion to
recuse, the named defendants pointed to a separate civil action
in which the Letcher County Board and its members had filed suit
against Commissioner Boysen and King, challenging the manner in
which some decisions had been made with respect to the operation
of the Letcher County schools.8
The named defendants noted that
in the prior action, Judge Wright had, sua sponte, recused
himself on the basis of KRS 26A.015(2)(e), which requires
recusal “where [the judge] has knowledge of any other
circumstances in which his impartiality might reasonably be
questioned.”
The named defendants argued that since some of the
same parties were involved, Judge Wright should likewise recuse
himself from presiding over the proceedings below in the instant
case.
Judge Wright denied the motion to recuse.9
On July 16, 1996, Halcomb and Brown filed an amended
complaint, adding a claim that the same named defendants had
failed to state “the true reasons” for the demotions, which,
according to Halcomb and Brown, rendered the demotions void and
denied them due process of law.
By an agreed order entered on August 27, 2001, the
trial court bifurcated the claims of Halcomb and Brown.
The
trial court ordered that it would first hear arguments related
8
95-CI-00186.
9
The date on which Judge Wright denied the motion to recuse is not clear from
the record.
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to any issues surrounding the appeal of their demotions before
ruling on any other claims.
After allowing the parties time to
file briefs on the matter, the trial court entered findings of
fact, conclusions of law, and judgment on March 28, 2002.
Among
other things, the trial court found that Halcomb and Brown had
not received notice of the scheduled hearing date in accordance
with the procedural requirements of KRS 161.765(2).
The trial
court thus ordered the Letcher County Board to reinstate Halcomb
and Brown to their former positions and the State Board to
provide compensation to Halcomb and Brown for “all lost wages
and other benefits” since their “wrongful termination.”
This
appeal followed.
The State Board raises several claims of error on
appeal.
We first address the State Board’s argument that since
it was named as a party defendant in Halcomb’s and Brown’s
complaint, venue was not proper in the Letcher Circuit Court.
In resolving this issue, we turn to KRS 452.430, KRS
161.765(2)(f), and the version of KRS 161.790(8) which was in
effect when Halcomb and Brown filed their complaint in the
Letcher Circuit Court.10
KRS 452.430 states in full as follows:
An action against the Kentucky Board of
Education, of this state, must be brought in
10
Halcomb and Brown filed their complaint in the Letcher Circuit Court in
June 1995. KRS 161.790 has since been amended twice, once in 1996 and again
in 1998.
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the county that includes the seat of
government.
However, KRS 161.765(2)(f) provides that where an administrator
with three or more years of administrative service has been
demoted,11 the administrator may appeal the school board’s
decision to uphold a demotion in the manner as provided in KRS
161.790(8), which reads in part as follows:
The [administrator] shall have the
right to make an appeal to the Circuit Court
having jurisdiction in the county where the
school district is located. . . .
Hence, there appears to be a conflict in the above
statutes.
However, it is a well-settled rule of statutory
construction that “when two statutes are in conflict, one of
which deals with the subject matter in a general way and the
other in a specific way, the more specific provision prevails.”12
In the case sub judice, it must be remembered that the
State Board was named as a party defendant because it had
stepped in to perform the functions normally undertaken by the
Letcher County Board.
Therefore, while KRS 452.430 generally
calls for suits brought against the State Board to be filed in
the Franklin Circuit Court, KRS 161.765(2)(f) specifically
addresses those situations where an administrator is appealing a
local school board’s decision to uphold a demotion.
11
It is not disputed that both Halcomb and Brown had three or more years of
administrative service.
12
Travelers Indemnity Co. v. Reker, Ky., 100 S.W.3d 756, 763 (2003).
-9-
Accordingly, since the State Board was performing the functions
of the Letcher County Board when it upheld the demotions of
Halcomb and Brown, venue in the Letcher Circuit Court was proper
under KRS 161.765(2)(f).
We next address the State Board’s argument that Judge
Wright should have recused himself from presiding over the
proceedings below.
In Stopher v. Commonwealth,13 our Supreme
Court stated:
KRS 26A.015(2) requires recusal when a
judge has “personal bias or prejudice
concerning a party . . . [,]” or “has
knowledge of any other circumstances in
which his impartiality might reasonably be
questioned.” The burden of proof required
for recusal of a trial judge is an onerous
one. There must be a showing of facts “of a
character calculated seriously to impair the
judge’s impartiality and sway his judgment.”
The mere belief that the judge will not
afford a fair and impartial trial is not
sufficient grounds for recusal [citations
omitted].
In its brief to this Court, the State Board claims
that Judge Wright should have recused himself (1) due to Judge
Wright’s previous recusal in a suit brought by members of the
Letcher County Board against then-Commissioner Boysen and King;
and (2) because of the State Board’s assertion that “a judge
looking toward future elections would find it exceedingly
difficult to make unpopular rulings against the local power
13
Ky., 57 S.W.3d 787, 794 (2001).
-10-
structure that had mismanaged the Letcher County Schools.”
In
short, the State Board has failed to point to any specific facts
which would tend to “impair [Judge Wright’s] impartiality” or
“sway his judgment.”
The State Board’s mere belief that Judge
Wright might not be impartial is not a sufficient basis for
requiring his recusal.
Accordingly, Judge Wright did not err by
denying the motion for recusal.
Next, we turn to the State Board’s claim that the
trial court erred by concluding that Halcomb and Brown did not
receive notice according to the requirements of KRS 161.765(2).
The State Board argues that since Halcomb and Brown received
notice of the grounds for their dismissal on April 24, 1995, the
procedural requirements of KRS 161.765(2) were satisfied even
though Halcomb and Brown were given only ten days to prepare for
their hearing after the hearing date was established.
We
disagree.
Pursuant to the statutory scheme provided under KRS
161.765(2), the appeal of a superintendent’s decision to demote
an administrator with three or more years of administrative
service must proceed in the following manner:
(a)
The superintendent shall give written
notice of the demotion to the board of
education and to the administrator. If
the administrator wishes to contest the
demotion, he shall, within ten (10)
days of receipt of the notice, file a
written statement of his intent to
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contest with the superintendent. If
the administrator does not make timely
filing of his statement of intent to
contest, the action shall be final.
(b)
Upon receipt of the notice of intent to
contest the demotion, a written
statement of grounds for demotion,
signed by the superintendent, shall be
served on the administrator. The
statement shall contain:
1.
2.
(c)
A specific and complete
statement of grounds upon
which the proposed demotion
is based, including, where
appropriate, dates, times,
names, places, and
circumstances;
The date, time, and place for
a hearing, the date to be not
less than twenty (20) nor
more than thirty (30) days
from the date of service of
the statement of grounds for
demotion upon the
administrator.
Upon receipt of the statement of
grounds for demotion the administrator
shall, within ten (10) days, file a
written answer. Failure to file such
answer, within the stated period, will
relieve the board of any further
obligation to hold a hearing and the
action shall be final. The board shall
issue subpoenas as are requested.
Thus, the above statutory scheme mandates that once an
administrator notifies a superintendent of his desire to contest
a demotion, the superintendent is required to provide the
administrator with a statement of grounds for the demotion and
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the date, time, and place for a hearing which is to be held not
less than 20 days nor more than 30 days from the service of the
statements of grounds for dismissal.
One of the key
requirements of this provision is that after a hearing date is
set, an administrator is to be given no fewer than 20 days to
prepare a defense based upon the stated grounds for demotion.
In the instant case, Halcomb and Brown received
identical letters on April 24, 1995, which notified them of
their demotions, and stated the grounds for the demotions.
By
letters dated May 5, 1995, Halcomb and Brown received notice
that a hearing had been set for May 15, 1995.
Hence, while
Halcomb and Brown were aware of the grounds for their demotions
for more than 20 days prior to the scheduled hearing date, they
were not given 20 days to prepare their defense after the
hearing date was established.
Therefore, the notice
requirements of KRS 161.765(2) were not satisfied.
The State Board’s reliance on Estreicher v. Board of
Education of Kenton County, Kentucky,14 is misplaced.
In
Estreicher, our Supreme Court held that a notice provided to an
administrator establishing a hearing date could incorporate by
reference the grounds for the demotion that had been stated in
previous communications.15
14
Ky., 950 S.W.2d 839 (1997).
15
However, in Estreicher, due to the
Id. at 842.
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granting of a continuance, the administrator was given more than
20 days from the date of the notice establishing a hearing date
in which to prepare a defense.16
The Supreme Court noted that
under the facts of that case, the purpose behind the 20-day
notice requirement, i.e., to “appris[e] [administrators] of the
time available to prepare for the impending hearing,” had been
satisfied.17
However, in the case sub judice, Halcomb and Brown
were not given 20 days to prepare a defense after being notified
that a hearing date had been established.
Although Halcomb and
Brown were made aware of the grounds for their demotions on
April 24, 1995, they were not notified that a May 15, 1995,
hearing date had been established until May 5, 1995.
Thus,
Halcomb and Brown had only 10 days in which to prepare a
defense.
Accordingly, the trial court did not err by concluding
that Halcomb and Brown had not received notice of the hearing
date in accordance with the requirements of KRS 161.765(2).
We next address the State Board’s argument that the
doctrine of sovereign immunity precluded an award for damages
against the State Board and any state officials sued in their
16
Id. at 843.
17
Id. (discussing the 20-day notice requirement and stating that “we feel
that the requirement of setting a time, date and place for a hearing embodied
in KRS 161.765(2)(b)(2) protects administrators, apprising them of the time
available to prepare for the impending hearing”).
-14-
official capacities, and that the trial court therefore erred by
ordering the State Board to pay Halcomb and Brown for “all lost
wages and other benefits.”
We do not believe under the
statutory scheme at issue herein that it is necessary to
consider the doctrine of sovereign immunity,18 but we do agree
that the trial court erred by ordering the State Board to
compensate Halcomb and Brown with back-pay.
As we mentioned previously, pursuant to KRS
161.765(2)(f) and KRS 161.790(8), an administrator with three or
more years of service has the right to appeal a school board’s
decision to uphold his demotion in the circuit court in the
county where the school district is located.
In the instant
case, when Halcomb and Brown filed their appeal in the Letcher
Circuit Court, KRS 161.790(8) read in pertinent part as follows:
The [administrator] shall have the
right to make an appeal to the Circuit Court
having jurisdiction in the county where the
school district is located. The appeal
shall be commenced by filing a petition
against the local board of education and the
superintendent. The petition shall state
the grounds upon which the [administrator]
relies for a reversal or modification of the
order of termination of contract. Upon
service or waiver of summons in the appeal,
the tribunal, with the assistance of the
chief state school officer, shall transmit
to the clerk of the court for filing a
transcript of the original notice of charges
and a transcript of all evidence considered
at the hearing before the tribunal. . . .
18
See generally Yanero v. Davis, Ky., 65 S.W.3d 510 (2001)(discussing various
immunity doctrines under Kentucky law).
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The court shall hear the appeal upon the
record as certified by the tribunal and
shall dispose of the appeal in summary
manner [emphases added].
This version of KRS 161.790(8), which became effective
on July 13, 1990, is significantly different than the previous
version, KRS 161.790(6).
From 1964 through July 12, 1990, KRS
161.790(6) stated in relevant part as follows:
The [administrator] shall have a right
to make an appeal both as to law and as to
fact to the circuit court. . . . Such
appeal shall be an original action in said
court and shall be commenced by the filing
of a petition against such board of
education, in which petition the facts shall
be alleged upon which the teacher relies for
a reversal or modification of the order of
termination of contract. Upon service or
waiver of summons in said appeal, such board
of education shall forthwith transmit to the
clerk of said court for filing a transcript
of the original notice of charges and a
transcript of all evidence adduced at the
hearing before such board, whereupon the
cause shall be at issue without further
pleading and shall be advanced and heard
without delay. The court shall examine the
transcript of record of the hearing before
the board of education and shall hold such
additional hearings as it may deem
advisable, at which it may consider other
evidence in addition to such transcript and
record. Upon final hearing, the court shall
grant or deny the relief prayed for in the
petition as may be proper under the
provisions of KRS 161.720 to 161.810 and in
accordance with the evidence adduced at the
hearing [emphasis added].
After considering these statutory changes, we conclude
that when KRS 161.790(8) was enacted in 1990, the General
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Assembly intended to circumscribe the ability of a reviewing
court to second-guess the personnel decisions of a
superintendent and/or a local school board.
For example, unlike
the authority granted to a circuit court under the former KRS
161.790(6), pursuant to KRS 161.790(8), the circuit court was no
longer authorized to take additional proof, nor was it permitted
to “grant or deny the relief prayed for in the petition as may
be proper under the provisions of KRS 161.720 to 161.810. . . .”
Rather, by mandating that the circuit court conduct the appeal
in a “summary manner,” the Legislature provided for a form of
judicial review as contemplated by American Beauty Homes Corp.
v. Louisville and Jefferson County Planning and Zoning
Commission.19
In American Beauty Homes, the former Court of
Appeals held that in reviewing the action of an administrative
agency, a court is limited to determining whether the agency’s
action was arbitrary by considering three primary factors, i.e.,
(1) did the agency act in excess of its statutory authority; (2)
were the parties affected by the agency’s action afforded
procedural due process; and (3) is there substantial evidence in
the record supporting the agency’s decision.20
19
Ky., 379 S.W.2d 450 (1964). See also Gallatin County Board of Education v.
Mann, Ky.App., 971 S.W.2d 295, 300 (1998)(discussing judicial review under
the 1990 version of KRS 161.790 and citing the American Beauty Homes
decision).
20
American Beauty Homes, supra at 456.
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In the case at bar, our review of the record shows
that the circuit court did not limit the manner in which it
reviewed Hendricks’s decision to that as contemplated by KRS
161.790(8) and American Beauty Homes.
Rather, contrary to the
procedure that was spelled out in KRS 161.790(8), the circuit
court permitted the parties to engage in an extensive and
protracted period of discovery.
In addition, after determining
that Halcomb and Brown had not received notice of their hearing
date in compliance with KRS 161.765(2), the circuit court did
not simply reverse Hendricks’s decision and remand the matter
for further proceedings.
Instead, the trial court ordered that
the State Board compensate Halcomb and Brown with back-pay.
Simply stated, KRS 161.765(2) and KRS 161.790(8) do not
contemplate that a school district’s failure to comply with the
procedural notice requirements of KRS 161.765(2) will entitle an
administrator to receive back-pay.
Rather, if the procedural
requirements of KRS 161.765(2) are not satisfied, the proper
remedy is a reversal of the school board’s decision and a remand
of the matter so that a hearing can be conducted in compliance
with the requirements of KRS 161.765(2).
Therefore, since a
remand of the matter for further proceedings was the proper
remedy for the procedural due process violation in question, the
doctrine of sovereign immunity was not invoked.21
21
If the statutory scheme applicable to administrators provided for payments
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Halcomb and Brown have cited several cases in support
of their contention that since they did not receive notice as
contemplated by the requirements of KRS 161.765(2), the trial
court was justified in awarding them with back-pay.22
disagree.
We
In each of those cases cited by Halcomb and Brown,
the procedural violations at issue occurred under different
statutory provisions.
In short, none of the cases relied upon
by Halcomb and Brown stand for the proposition that the failure
of a school board to follow the procedural notice requirements
of KRS 161.765(2) will justify an award of back-pay.
Accordingly, we reverse that portion of the trial
court’s ruling ordering that Halcomb and Brown be compensated
of lost salary, such as KRS 161.790(7) provides for teachers, then the
argument could be made that the Legislature had specifically waived the
defense of sovereign immunity as to these particular damages.
22
See Settle v. Camic, Ky.App., 552 S.W.2d 693 (1977)(holding that the school
board had failed to follow the requirements of KRS 161.760); Harlan County
Board of Education v. Stagnolia, Ky.App., 555 S.W.2d 828 (1977)(upholding the
trial court’s order that assistant principal be reinstated to former position
after determining that evidence supported the trial court’s finding that the
school board had acted arbitrarily under the former KRS 161.162, and that the
school board should have conducted a hearing pursuant to KRS 161.765); Miller
v. Board of Education of Hardin County, Ky.App., 610 S.W.2d 935
(1980)(determining that the school board had failed to follow the
requirements of KRS 161.760)(superceded by statute, see KRS 160.390 and KRS
161.760); Stafford v. Board of Education of Casey County, Ky.App., 642 S.W.2d
596 (1982)(determining that the school board had failed to comply with the
requirements of KRS 160.380); Banks v. Board of Education of Letcher County,
Ky.App., 648 S.W.2d 542 (1983)(determining that the school board had failed
to the follow the requirements of KRS 161.760)(superceded by statute, see KRS
160.390 and KRS 161.760); Daugherty v. Hunt, Ky.App., 694 S.W.2d 719
(1985)(upholding the trial court’s order that former principal be paid the
same salary he received as principal during the succeeding year following his
demotion due to the school board’s failure to follow the requirements of KRS
161.760)(superceded by statute, see KRS 160.390 and KRS 161.760); Board of
Education of McCreary County v. Williams, Ky.App., 806 S.W.2d 649
(1991)(upholding the trial court’s award of damages based upon the school
board’s failure to follow the requirements of KRS 161.760(3)).
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with back-pay.
In addition, since we have concluded that
Halcomb and Brown did not receive notice according to the
requirements of KRS 161.765(2), we remand to the trial court
with instructions to further remand this matter for a hearing in
compliance with the procedural requirements of KRS 161.765(2).
Following this due process hearing, if Halcomb and Brown desire
to appeal the school board’s new decision, they may do so
pursuant to KRS 161.765(2)(f).
Finally, if the Letcher Circuit
Court is once again asked to review the decision of the school
board, it must conduct the review according to the American
Beauty Homes standard discussed above.23
23
The circuit court should also be mindful that “[t]he decision of whether to
demote an administrator under KRS 161.765 is left “to the sound discretion of
the local superintendent and board of education,” and the stated grounds for
demotion are valid as long as “those grounds [are] not [ ] arbitrary or
unreasonable or otherwise [ ] violative of a right protected by the State or
Federal Constitutions.” See Miller, 610 S.W.2d at 937. Furthermore, in
Hooks v. Smith, Ky.App., 781 S.W.2d 522, 523-24 (1989), this Court stated:
The appellant argues that she had a property
interest in her job and that she has been denied due
process of law under the fourteenth amendment because
of the statute’s failure to forewarn her of the kind
of conduct which would result in demotion. The
problem with this argument is that under the
statutory scheme, unlike a teacher, see KRS 161.740,
a school administrator, even one who has completed
three years administrative service, is not ever
granted a “continuing service contract” as an
administrator. This court has spoken of an
“administrator with tenure[.]” Strictly speaking,
however, an administrator has been given no right of
tenure to an administrative position and may be
removed from such position by the local board of
education upon recommendation of the superintendent
for any reason not offending some right protected by
the state or federal constitutions or KRS 161.162.23
At best, the statute gives an administrator with at
least three years experience an additional procedural
opportunity to convince the board of the lack of
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Based on the foregoing, the order of the Letcher
Circuit Court is reversed and this matter is remanded for
further proceedings consistent with this Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT, STATE
BOARD FOR ELEMENTARY AND
SECONDARY EDUCATION:
Albert B. Chandler III
Attorney General
BRIEFS FOR APPELLEES:
Arthur L. Brooks
J. Follace Fields, II
Lexington, Kentucky
ORAL ARGUMENT FOR APPELLEES:
D. Brent Irvin
Assistant Attorney General
Frankfort, Kentucky
J. Follace Fields, II
Lexington, Kentucky
ORAL ARGUMENT FOR APPELLANT,
STATE BOARD FOR ELEMENTARY AND
SECONDARY EDUCATION:
D. Brent Irvin
Assistant Attorney General
Frankfort, Kentucky
BRIEFS FOR APPELLANT, BOARD OF
EDUCATION OF LETCHER COUNTY:
Michael J. Schmitt
Jeffrey M. Baldwin
Paintsville, Kentucky
merit in the superintendent’s recommendation of
demotion, or that it violates a constitutional or
statutory right. In short, our statutory scheme does
not appear to have created a “property interest” in a
school administrator in continued employment as an
administrator, although it does secure the right to
certain procedural safeguards [citations omitted].
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