FLOYD COUNTY BOARD OF EDUCATION; DR. STEPHEN TOWLER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF THE FLOYD COUNTY BOARD OF EDUCATION; EDDIE PATTON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE FLOYD COUNTY BOARD OF EDUCATION; EDDIE BILLIPS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE FLOYD COUNTY BOARD OF EDUCATION; HATTIE C. OWENS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS A MEMBER OF THE FLOYD COUNTY BOARD OF EDUCATION; DR. BRENT CLARK, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE FLOYD COUNTY BOARD OF EDUCATION; AND ROBERT ISAACS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE FLOYD COUNTY BOARD OF EDUCATION v. WAYNE RATLIFF, TOMMY THOMPSON, AND PETE GRIGSBY
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RENDERED:
OCTOBER 15, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001971-MR
FLOYD COUNTY BOARD OF EDUCATION;
DR. STEPHEN TOWLER, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY AS
SUPERINTENDENT OF THE FLOYD COUNTY
BOARD OF EDUCATION; EDDIE PATTON,
INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY AS A MEMBER OF THE FLOYD
COUNTY BOARD OF EDUCATION; EDDIE
BILLIPS, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY AS A MEMBER OF
THE FLOYD COUNTY BOARD OF EDUCATION;
HATTIE C. OWENS, INDIVIDUALLY AND IN
HER OFFICIAL CAPACITY AS A MEMBER OF
THE FLOYD COUNTY BOARD OF EDUCATION;
DR. BRENT CLARK, INDIVIDUALLY AND IN
HIS OFFICIAL CAPACITY AS A MEMBER OF
THE FLOYD COUNTY BOARD OF EDUCATION;
AND ROBERT ISAACS, INDIVIDUALLY AND
IN HIS OFFICIAL CAPACITY AS A MEMBER
OF THE FLOYD COUNTY BOARD OF EDUCATION
v.
APPELLANTS
APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE STEPHEN N. FRAZIER, SPECIAL JUDGE
ACTION NO. 93-CI-00359, NO. 95-CI-00621
NO. 95-CI-00622, AND NO. 95-CI-00623
WAYNE RATLIFF, TOMMY THOMPSON,
AND PETE GRIGSBY
AND
NO. 2002-CA-001968-MR
APPELLEES
WAYNE RATLIFF; TOMMY THOMPSON;
PETE GRIGSBY; AND E. MARTIN
MCGUIRE, ATTORNEY-AT-LAW
v.
CROSS-APPELLANTS
CROSS-APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE STEPHEN N. FRAZIER, SPECIAL JUDGE
ACTION NO. 93-CI-00359, NO. 95-CI-00621
NO. 95-CI-00622, AND NO. 95-CI-00623
FLOYD COUNTY BOARD OF EDUCATION;
DR. STEPHEN TOWLER, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY AS
SUPERINTENDENT OF THE FLOYD COUNTY
BOARD OF EDUCATION; EDDIE PATTON,
INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY AS A MEMBER OF THE FLOYD
COUNTY BOARD OF EDUCATION; EDDIE
BILLIPS, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY AS A MEMBER OF
THE FLOYD COUNTY BOARD OF EDUCATION;
HATTIE C. OWENS, INDIVIDUALLY AND IN
HER OFFICIAL CAPACITY AS A MEMBER OF
THE FLOYD COUNTY BOARD OF EDUCATION;
DR. BRENT CLARK, INDIVIDUALLY AND IN
HIS OFFICIAL CAPACITY AS A MEMBER OF
THE FLOYD COUNTY BOARD OF EDUCATION;
AND ROBERT ISAACS, INDIVIDUALLY AND
IN HIS OFFICIAL CAPACITY AS A MEMBER
OF THE FLOYD COUNTY BOARD OF EDUCATION
CROSS-APPELLEES
OPINION
DISMISSING ON DIRECT APPEAL AND
AFFIRMING IN PART AND REVERSING IN PART
AND REMANDING ON CROSS-APPEAL
** ** ** ** **
BEFORE:
GUIDUGLI, MINTON, AND VANMETER, JUDGES.
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GUIDUGLI, JUDGE:
The Floyd County Board of Education, its
superintendent, and its board members in both their individual
and official capacities (hereinafter, collectively, “Board of
Education”) appeal from two orders of the Floyd Circuit Court
entered February 12 and August 21, 2002.
Specifically, the
Board of Education is appealing from the trial court’s award of
back pay to two former Floyd County School System employees.
On
cross-appeal, Wayne Ratliff, Tommy Thompson, and Pete Grigsby
and E. Martin McGuire are appealing, in part, from the trial
court’s failure to order injunctive relief, which is at times
referred to as a failure to reinstate the restraining order; the
amount of damages awarded; the trial court’s finding that the
Board of Education’s violations of the Open Meetings Act were
not willful; and the subsequent denial of their motion for
attorney fees and costs.1
Ratliff, Thompson, Grigsby and McGuire
have also moved to strike the Board of Education’s brief and
dismiss the direct appeal because the brief was a virtual copy
of a brief tendered by a disqualified counsel.
1
We agree that
The Board of Education originally filed a notice of appeal on March 1, 2002,
from the same February 12 and August 21, 2002, orders during the pendency of
the plaintiffs’ motion to alter, amend or vacate. This Court dismissed that
appeal as prematurely taken on May 17, 2002. Following the trial court’s
ruling on the motion to alter, amend or vacate, the Board of Education filed
a notice of appeal through attorney Patricia T. Bausch on September 10, 2002,
followed by an amended notice of appeal on September 13, 2002, which were
designated as appeal No. 2002-CA-001891. Through attorney Michael J.
Schmitt, the Board of Education filed another notice of appeal from the same
orders on September 20, 2002, which was designated as appeal No. 2002-CA001968-MR. A three-judge panel of this Court dismissed appeal No. 2002-CA001891-MR as a duplicative appeal on April 3, 2003.
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the Board of Education’s brief must be stricken, and therefore
dismiss its direct appeal.
On cross-appeal, we affirm on the
issues of damages and injunctive relief, but reverse and remand
on the finding that the violations were not willful because
substantial evidence does not support that finding, as well as
on the related issue of attorney fees.
The four circuit court actions presently before this
Court have amassed a lengthy procedural history over the course
of more than ten years, and a thorough recitation of this
history is necessary for a full understanding of the case.
In
Floyd County Board of Education v. Ratliff,2 the Supreme Court of
Kentucky addressed the first appeal in action No. 93-CI-0359,
and we shall therefore set out the Supreme Court’s recitation of
the facts as follows:
The Floyd County Board of Education was
contemplating reorganization of the central
staff of the school board. Ratliff,
Thompson and Grigsby, employed as school
administrators, stood to lose their
positions depending upon which
reorganization plan was adopted. The latter
part of 1992 and the first half of 1993 was
a difficult time for the Board. The
Superintendent had been removed by the
Kentucky Department of Education; the Board
Chairman had resigned after removal charges
had been brought by the same body; a board
member had resigned because of a stroke and
due to similar charges, and a massive
investigation by the Kentucky Department of
Education had created a voluminous statement
2
Ky., 955 S.W.2d 921 (1997).
-4-
of deficiencies which required corrections
by the Board.
On March 25, 27 and 30, and April 3,
1993, the Board held a number of meetings in
connection with the reorganization of the
central office of the Board. The Board went
into “executive” or closed-to-the-public
sessions. The minutes of the meetings
indicate that the purpose of the secret
sessions was to be “personnel” matters.
Immediately following the final executive
session on April 3, the Board resumed its
open meeting and voted unanimously to adopt
the proposed central office reorganization
plan which eliminated the administrative
positions of Ratliff, Thompson and Grigsby.
Each of the administrators received a letter
dated April 5, 1993, from the superintendent
informing them that their administrative
positions had been abolished. The three
administrators then appealed these actions
to the Board by letter dated May 12, 1993,
pursuant to KRS 61.846. The letter
challenged the validity of using the
“personnel” exception to the Open Meetings
Act under the circumstances, as well as the
power of the Board, under the Kentucky
Education Reform Act, to demote or discharge
school employees. The Board declined to
rescind the reorganization plan or reinstate
the former employees. Just before the
meeting of April 3, 1993, the administrators
circulated copies of a complaint which they
indicated they were contemplating filing in
the United States District Court. It is now
acknowledged that the Board discussed the
reorganization plan. A number of lawsuits
were later filed challenging the
reorganization.
At a hearing before the circuit judge,
the Board took the legal position that it
closed the meeting in order to discuss
pending litigation, that is, the potential
suit of the appellees. The Board
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acknowledged that the school board attorney
was not present at the secret meetings.
The circuit judge found that there were
no material issues of fact, but only
questions of law, and there were no
evidentiary hearings conducted by the trial
court. The trial judge ruled that the Board
could go into closed session pursuant to the
pending litigation exception and that the
administrators were not suffering any
irreparable injury. He determined that they
had an adequate remedy at law and were not
entitled to injunctive relief. The Court of
Appeals reversed, holding that the three
employees did not need to show that they did
not have an adequate remedy at law because
the Open Meetings statute specifically
contained provisions which allowed them to
proceed by injunction. KRS 61.848(1). The
Court of Appeals also rejected the claim of
a discussion of potential litigation and
stated that the Board could not go into
closed session in order to engage in a
general discussion about personnel
matters.[3] This Court accepted
discretionary review.[4]
The Supreme Court affirmed this Court’s decision,
holding that the school board and its members’ actions violated
Open Meetings laws.
As to the “pending litigation” exception,
the Supreme Court noted:
There are no specific Kentucky cases or
statutes relating to the scope of the
“pending litigation” exception which is
found in KRS 61.810(1)(c). We agree with
the Court of Appeals that the drafters of
this legislation clearly envisioned that
this exception would apply to matters
3
4
Appeal No. 93-CA-2377-MR.
Id. at 922-23.
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commonly inherent to litigation, such as
preparation, strategy or tactics.[5]
In this case, the Supreme Court determined that “the Board went
into executive session to consider the reorganization plan and
not pending litigation.
The discussion expanded the intended
scope of the litigation exception and improperly concealed
matters otherwise appropriate to the view of the public.”6
Furthermore, the Supreme Court held that injunctive relief was
properly requested and “Ratliff, Thompson and Grigsby were not
required to demonstrate that they had no adequate remedy at law
in their request for an injunction.”7
The Supreme Court
concluded by remanding the matter to the circuit court and
holding that the Board and its members “violated the Kentucky
Open Meetings Act, specifically KRS 61.810(1) on March 30 and
April 3, 1993.
Accordingly, all such actions taken regarding
the central office reorganization are voidable pursuant to KRS
61.848(5).”8
The Supreme Court’s opinion became final on
December 11, 1997.
During the pendency of the appeal in this Court and
the Supreme Court, Ratliff, Thompson and Grigsby filed
complaints in the United States District Court, Eastern District
of Kentucky.
5
6
7
8
Their state law claims were dismissed without
Id. at 923-24.
Id. at 924.
Id. at 925.
Id.
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prejudice on May 23, 1995, and each filed a similar lawsuit in
Floyd Circuit Court in 1995.
They alleged that their respective
terminations were the result of various violations of state law,
including the Open Meetings Act.
On June 5, 1997, the circuit
court entered a partial summary judgment on liability on behalf
of Grigsby.
A few months later, Grigsby settled his claim with
the Board and an agreed order of dismissal was entered in
August.
The settlement agreement provided that Grigsby was to
receive $111,104.62 in damages “for personal injuries and
sickness suffered by Plaintiff.”
Once the Supreme Court rendered its decision in the
1993 action, the plaintiffs moved the circuit court to enter an
order consistent with that opinion, which the circuit court did
by an order entered February 2, 1998.
In that order, the
circuit court entered a judgment on behalf of the plaintiffs,
specifically found that the open meetings act violations were
willful, reinstated the plaintiffs to their prior positions,
salaries and benefits plus increases, and permanently enjoined
the Board of Education from enforcing any action taken at the
1993 meetings.
Following entry of this order, the plaintiffs
each moved for a summary judgment on the issue of the amount of
damages owed to them.
The Board of Education apparently filed a
motion to alter, amend or vacate this order, although this
motion does not appear in the record.
-8-
By order entered July 6, 1998, the circuit court
determined that a trial would be necessary to decide the type
and amount of damages to which each plaintiff was entitled.
Additionally, the circuit court stated, “all matters regarding
this case since the decision of the Kentucky Supreme Court
should be set aside and a trial should be held regarding the
issue of damages.”
The circuit court then denied the pending
motions for summary judgment and consolidated the 1993 action
with the 1995 actions as they all arose out of the same facts.
The trial on damages was eventually held March 22 and 23, 1999.
The parties then filed trial briefs with the circuit court.
The
plaintiffs sought back pay; pay for vacation, sick and personal
days; retirement; lost future earnings; and pre-judgment
interest.
The Board of Education included a sovereign immunity
argument, and argued that none of the plaintiffs were entitled
to recover any damages.
The circuit court entered a judgment on September 7,
2000, including its findings of fact and conclusions of law.
this judgment, the circuit court found that the Board of
In
Education’s violations of the open meetings act were not
willful, so that it could not award the limited damages, costs
and reasonable attorney fees, and that the plaintiffs’ damages
claims were limited to the 1995 actions.
-9-
In determining that
the open meetings act violations were not willful, the circuit
court stated:
The facts surrounding the meetings of
March 30th and April 3, 1993, together with
the opinion of the Kentucky Supreme Court
and the dissenting opinion of Chief Justice
Stephens make it clear that the violations
of the Kentucky Open Meetings Act which
occurred on March 30 and April 3, 1993 were
not willful but instead the result of an
honest mistake as to the application of the
Open Meetings Act to the subject matter
under discussion. As a result, the Court
finds that there was no willful violation of
the Open Meetings Act by the Board of
Education on March 30 or April 3, 1993.
As to the individual plaintiffs, the circuit court found that
Grigsby settled his 1995 action, so that any further claims he
had were barred.
Ratliff’s and Thompson’s 1995 claims were
likewise dismissed because neither met the requirements for a
demotion hearing and because sovereign immunity barred their
breach of contract and tort claims.
Therefore, all of the
claims were dismissed with prejudice.
The plaintiffs filed a motion to alter, amend or
vacate the judgment, arguing that the ruling was inconsistent
with the Supreme Court’s opinion and that they were entitled to
injunctive relief.
Earl Martin McGuire, counsel for the
plaintiffs, also filed a motion for attorney fees the same day.
The Board of Education responded to both motions.
On July 31,
2001, the circuit court entered an order taking the two motions
-10-
out of submission and ordered the parties to submit written and
oral arguments on particular issues, including whether the
violations of the open meetings act were willful and whether the
plaintiffs were entitled to monetary damages other than those
set out in the statute.
On October 11, 2001, the circuit court entered an
opinion and order, in which it partially granted the plaintiffs’
motion to alter, amend or vacate.
After discussing the
procedural history of the actions, the circuit court entered its
well thought out conclusions of law as follows:
The Court notes that this area is
virtually uncharted territory of Kentucky
law and this consolidated action seems to be
the pioneer weathering through the dark
forest of conflicting interests and little
precedent to guide the way. The Supreme
Court has clarified for us that the actions
of the Board were indeed violations of the
Open Meetings Act, but along this path that
has been cleared, this case has again hit a
crossroads with the issue of damages for
such a violation.
In considering the Plaintiffs’ motion
to alter, amend, or vacate this Court’s
previous Order, this Court centers on two
primary issues for ultimate resolution. The
first issue is whether the Plaintiffs, upon
the finding that the Defendant Board of
Education violated the Open Meetings Act,
were entitled to an injunction reinstating
them to their previously held positions, a
part of which including [sic] back pay or
other monetary awards reflective of the
circumstances of each particular Plaintiff.
The second and corollary issue of the first
is if the first issue is found in favor of
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the Plaintiffs, whether each Plaintiff is
entitled to said monetary damages and what
is the proper award recoverable.
The Supreme Court of the Commonwealth
of Kentucky has answered the first question
in the affirmative. As it stated in its
opinion reversing this trial court:
Finally, the request for
injunctive relief was proper in
this case. KRS 61.848, in
pertinent part, states that where
alleged violations of the Open
Meetings Act occur, the circuit
court shall have jurisdiction to
enforce the provisions of KRS
61.805 to 61.850 as they pertain
to the public agency “by
injunction or other appropriate
order on application by any
person.” Ratliff, Thompson, and
Grigsby were not required to
demonstrate that they had not
[sic] adequate remedy at law in
their request for an injunction.
The Court of Appeals was correct
in determining that the circuit
judge erred by holding otherwise.
[Floyd County Board of Education v.
Ratliff], 955 S.W.2d 921, 925 (Ky.
1997)(citations omitted). With such
direction, it is clear that this Court must
issue an injunction reinstating the
Plaintiffs to their original positions.
However, the Court did not specifically
address the issue of whether or not the
Plaintiffs were entitled to back pay from
the date of their firing to the date of the
injunction. However, from this Court’s
research on the issue from other
jurisdictions, it is clear that in order to
fully return the Plaintiffs to the position
they originally held, back pay and other
forms of monetary awards are necessary and
proper.
-12-
The Texas Court of Appeals addressed a
scenario that is similar to the facts before
this Court. In the case of Ferris v. Texas
Board of Chiropractic Examiners, 808 S.W.2d
514 (1991), the Plaintiff alleged a
violation of the Texas Open Meetings Act.
Plaintiff alleged that she was terminated
during an illegal meeting and the facts
further elicited that some time later, she
was legally and properly fired from her
position. The Plaintiff sought (1)
declaratory judgment that the Defendant had
violated the Open Meetings Act and (2) an
injunction requiring the Defendant to
reinstate her and award her back pay for the
time that elapsed between the Board’s
initial illegal attempts to terminate her
and the date on which she was legally
terminated. The trial court in this case
found a violation but refused to award an
injunction, requiring the Defendant to
reinstate her and award her back pay. The
Plaintiff appealed to the Court of Appeals,
which agreed with the Plaintiff’s
contention.
The Ferris court held that “the Board’s
attempts to terminate Ferris on July 9, 1998
and on February 25, 1989, at meetings
admittedly held in violation of the Act,
were void as a matter of law. Under [the
Open Meetings Act], Ferris is entitled to
have these unlawful actions reversed.
Ferris therefore continued to be employed by
the Board until the legal termination
occurred on December 1, 1989.” Ferris, 808
S.W.2d at 518. As a result of this holding,
the Court ordered:
We hold that because Ferris
lawfully continued in the Board’s
employ as its executive director
until December 1, 1989, she is
entitled to receive all benefits
and emoluments flowing from her
employment; therefore the Board is
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enjoined from reflecting otherwise
in her employment records; and
further Ferris is entitled to
receive the stipulated sum of
$26,000.00 pay due her.
Id. at 519. This Court is persuaded by
the holding and reasoning of the Ferris
court. When a public agency violates the
Open Meetings Act, any action taken during
that meeting is declared illegal and is
voidable by the Court. In other words, when
a violation is found, the court can hold
that the action was never taken and the
aggrieved party be returned to his or her
position as if the termination had never
happened. A natural and flowing consequence
of reinstating an employee as if he never
left would be that the employee has not been
paid during that time frame and therefore
should recover what pay is due him.
With this Court’s finding the logical
and practical implications of the Ferris
ruling to be applicable to the case at bar,
the Court finds that the reasoning of the
Ferris court shall apply to this case.
However, the Court must next look to the
individual facts and circumstances
surrounding each Plaintiff’s case to
determine what amount, if any, each
Plaintiff is entitled in the form of back
pay or other monetary awards.
A.
PLAINTIFF PETE GRIBSGY
As noted above, the Court, in its
previous order of September 6, 2000, this
Court [sic] held that Plaintiff Grigsby,
having been reinstated to his former
position and having settled his claim and
executed a release and agreed order
dismissing all claims, including claims
arising out of the defendant’s meetings in
executive sessions during the months of
March and April of 1993, his claims were
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barred by the release and dismissal order
previously entered.
In light of the current motion before
the Court, the Court entertained argument
from Plaintiff’s counsel with regards to the
issue of release and its effect on the 1993
action that is the subject matter of the
above discussion. The Court, after
reviewing the evidence as well as
considering said arguments, finds that is
previous decision barring Plaintiff Grigsby
from further award in light of his
settlement was sound and in accordance with
the law. Plaintiff Grigsby executed a
release wherein he released the Defendant
that constituted “a full and final
settlement of all claims including costs and
attorney fees, all causes of action set
forth in the Complaint except for the
enforcement of this Settlement Agreement,
and a Final Order to be entered in the above
styled litigation.” Even though it is
argued that his release only covered the
1995 action, the Court is not so persuaded
as to allow the Plaintiff to again recover
in another action [] which deals with the
same occurrences, i.e. the violation of the
Open Meetings Act which was expressly set
out as a cause of action in the 1995
complaint.
Therefore, with regards [sic] to Pete
Grigsby, the September 6, 2000 order barring
his claims because settlement and release
stand and as such, Grigsby is not entitled
to the aforementioned injunction and award
of back pay. As noted in the September 2000
order, Plaintiff Grigsby’s claim is
dismissed with prejudice.
B.
PLAINTIFF WAYNE RATLIFF
At the time of the illegal meeting,
Plaintiff Ratliff was employed as the CoFood Service Director for the Floyd County
School District. After his position was
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terminated in this capacity, Ratliff was
reassigned to a teaching position for the
1993-94 school year, but prior to the
beginning of the school year, Plaintiff
voluntarily retired by letter dated April 5,
1993. His retirement was finalized in July
of 1993 and [he] has been receiving full
time benefits from the Kentucky Teachers’
Retirement System since that time.
Having had his position terminated in
contravention of the Kentucky Open Meetings
Act, Plaintiff Ratliff is entitled to an
injunction returning him to his previous
position as if he had never been fired.
However, the remaining issue before the
Court is the effect of his retirement upon
the injunction and the amount to which he is
entitled in the form of back pay.
The Court finds that, in order to
return the Plaintiff to his original
position as if the termination had never
occurred, Plaintiff Ratliff shall be
entitled to his back pay from the date of
the termination until the date of his
retirement in July of 1993. This is done so
following the persuasive reasoning of the
Ferris court.
Further, the Court finds that it is
clear from the evidence that Plaintiff
Ratliff would not have voluntarily retired
but for having lost his position as food
service director. Therefore, while the
Court cannot order the Plaintiff out of
retirement and to continue to work until the
age of retirement, the Court finds that the
Plaintiff should recover the difference in
the amount of his retirement as of the date
of his retirement in July of 1993, that he
is currently receiving, and the amount his
retirement would have been if he had stayed
in his position until the commonly accepted
age of retirement of 65.
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The Court finds this to be the most
adequate way of returning Plaintiff Ratliff
to the position he was in prior to the
illegal meeting during which he was
terminated.
C.
PLAINTIFF TOMMY THOMPSON
Plaintiff Thompson’s case is comparable
to that of Plaintiff Ratliff’s. Under the
principles espoused above, Plaintiff
Thompson is entitled to be reinstated to his
previous position as he held prior to the
illegal termination. However, Plaintiff
Thompson was later re-employed as a
principal in the Lawrence County School
District. Therefore, as with Plaintiff
Ratliff, Plaintiff Thompson should receive
his back pay from the date of his illegal
termination to the date when he obtained
other employment. Thereafter, as it is
clear that Plaintiff Thompson would not have
obtained other employment if it were not for
the illegal termination, Plaintiff Thompson
should receive the difference in the amounts
of pay between his position in Floyd County
and his subsequent position in Lawrence
County. Thompson shall be entitled to this
difference, if there is any at all, up to
the time when his pay at Lawrence County is
the same as it was in Floyd County. The
Court sets this as the cut-off point for
compensation to the Plaintiff as if it were
to continue beyond this time, the Plaintiff
would be receiving a windfall and in effect
would be paid for two jobs.
The Court’s intent in resolving this
dispute is to bring all the parties involved
in the position they would have been if the
meeting had never taken place. The Court
finds that the manner in which it has done
so furthers that intent in the most
equitable way possible with such heated
conflicting interests brought to bear in
this case.
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WHEREFORE, IT IS HEREBY ORDERED AND
ADJUDGED that Plaintiffs’ motion to alter,
amend or vacate the order of September 6,
2000 to be, and the same is, SUSTAINED to
the extent that is reflective of the above
discussion. The Court does not purport to
alter its previous decision with regards to
the issues contained in the Plaintiffs’ 1995
actions or with regards to the issue of the
$100.00 per occurrence penalty, costs, and
attorney fee award, and the Order remains
unaltered in that respect and to the extent
that the Plaintiffs move the Court to do so,
their motion is overruled.
The remaining issue before this Court
with regard to these cases is the amount of
damages entitled to Plaintiff Ratliff and
Plaintiff Thompson as a result of the
Court’s findings above. The Court is
without sufficient information to arrive at
the exact figures to be awarded and
therefore, a hearing, with only the above
issue to be discussed and heard before this
Court, is scheduled to be heard in the
Johnson Circuit Courtroom on October 29,
2001 at the hour of 10:00 a.m.
Upon the plaintiffs’ motion to clarify, the circuit court
entered an order on November 5, 2001, indicating that the
October 11, 2001, order and opinion was interlocutory in nature.
The hearing on damages was eventually heard on November 16,
2001, although the transcript of this hearing was apparently
never requested, as one does not appear in the certified record.
On February 12, 2002, the circuit court entered an
Order and Final Judgment, incorporating its previous order of
October 11, 2001.
To Thompson, the circuit court awarded the
amount of $158,925.61, representing his full salary prior to
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leaving the Board’s employment for the 1993-94 school year when
he was unemployed and for the difference between his prior
salary and his current salary from the 1994-95 through the 20032004 school years, along with a supplemental amount of $709.59.
To Ratliff, the circuit court awarded the amount of $186,583.04,
representing four months of salary until his retirement and the
diminution in value of his monthly retirement income.
The
circuit court also ordered the Board to reinstate Thompson and
Ratliff to their former positions for the limited purpose of
reimbursing them for the amounts the Board was ordered to pay.
On February 22, 2002, the plaintiffs filed a motion to
alter, amend or vacate or for clarification, arguing that they
were entitled to reinstatement, that it was error to deny them
damages from the 1995 actions, that the circuit court should
have awarded interest, that the circuit did not address the
individual liability of the defendants, and that the violations
of the Open Meetings Act were intentional so that attorney fees
should have been awarded.
By order entered August 21, 2002, the
circuit court denied the plaintiffs’ motion to alter, amend or
vacate, reasoning that they were not entitled to file a second
motion to alter, amend or vacate in reliance on Cloverleaf Dairy
-19-
v. Michels.9
The appeal by the Board of Education and the cross-
appeal by the plaintiffs and their counsel followed.
On appeal, the Board of Education presents two
arguments.
In the first, the Board of Education argues that it
ratified its previous open meetings act violations, so that the
plaintiffs were not entitled to any recovery.
The second
argument is based upon the effect the Board of Education’s
correction of the violations would have on any damages awarded.
In their responsive brief, the Ratliff, Thompson and Grigsby
first argue that the Board of Education’s appeal should be
dismissed due to counsel’s use of a brief tendered by, and
returned to, an attorney who was disqualified by a three-judge
panel of this Court.
As to the merits of the Board of
Education’s appeal, Ratliff, Thompson and Grigsby argue that the
Board could not correct the violations and that the damages
argument was improper, as it was never raised before the trial
court.
On cross-appeal, Ratliff, Thompson, Grigsby and
McGuire argue that the trial court erred in failing to reinstate
the restraining order, in not finding that the open meetings act
violations were willful so that attorney fees and costs could be
awarded, and in failing to award the full measure of damages.
In its responsive brief, the Board of Education did little more
9
Ky.App., 636 S.W.2d 894 (1982).
-20-
than repeat the arguments it made in its original brief,
although it did respond to the motion to dismiss and to the
attorney fee argument.
We shall first address the motion to strike the Board
of Education’s brief and dismiss the direct appeal.
For
purposes of appeal, the Board of Education retained Patricia
Bausch of the firm Sturgill, Turner, Barker & Maloney to
represent its interests.
As appellate counsel, she tendered a
brief on behalf of the Board of Education.
Prior to the filing
of the brief, Ratliff, Grigsby, Thompson and McGuire filed a
motion to disqualify attorney Bausch and her firm from
representing the Board of Education.
In support of their
motion, they argued that Tammy Meade, a current member of
attorney Bausch’s law firm, was formerly an assistant counsel
for them in the underlying action and assisted in the
preparation and prosecution of their case.
They asserted that
attorney Meade was aware of significant issues, and of both
trial and appellate strategy for this case.
In particular:
Patricia Bausch admits that Ms. Meade
“covered a deposition or two for Mr.
McGuire” in this action, and “made an
appearance at motion hour” on behalf of
[appellees/cross-appellants]. Ms. Meade
also researched and briefed issues in the
case, sat in on client conferences with the
[appellees/cross-appellants], held meetings
in person and via telephone with the
[appellees/cross-appellants], drew up legal
strategy and plans for prosecution of the
-21-
case, assisted in preparation of documents
to be used on appeal of the action, met with
present counsel for [appellees/crossappellants] in person and via telephone
conferences to discuss the case and possible
ideas for appeal of the case, and organized
the file for trial. Lastly, Ms. Meade was
present during hearings, court appearances
and motion hours prior to trial of the
action.
A three-judge motion panel of this Court granted the motion to
disqualify attorney Bausch and her firm as counsel for the Board
of Education, noting that attorney Meade’s involvement “was more
than ‘brief and perfunctory,’[] which creates a presumption that
Meade became privy to confidential information and strategy
pertaining to the case,[] and which would now disqualify her
were she the attorney selected to practice it for
appellants/cross-appellees.”
In disqualifying appellate
counsel, this Court recognized that the Board of Education would
not be left without counsel as trial counsel, Michael Schmitt,
had filed an identical appeal, which was dismissed as a
duplicate appeal by the same order.
As a result of the
disqualification, the Court ordered the clerk to return the
brief tendered by attorney Bausch and allowed attorney Schmitt
twenty days to tender an amended brief.
Pursuant to this order,
attorney Schmitt tendered an amended brief, which was eventually
filed on April 24, 2003.
-22-
In their brief to this Court, Ratliff, Grigsby,
Thompson and McGuire included a “renewed motion to dismiss,”
which this Court has treated as a motion to strike the Board of
Education’s brief and dismiss the direct appeal.
The motion
asserts that the brief filed by attorney Schmitt incorporated
numerous pages of the previously returned brief, including
“lengthy verbatim portions of the earlier brief . . ., including
virtually all of the ‘Argument’ section.”.
In doing so, they
argued that the Board of Education perpetuated the conflict of
interest this Court had previously found.
In the responsive
brief, the Board of Education stated, as it did in its response
to the motion to disqualify, that attorney Meade had been
secluded from Sturgill, Turner, Barker & Maloney’s
representation in this case and that there was no demonstration
that confidential matters known to attorney Meade were contained
in the argument section of its brief.
The Board of Education
concluded with the following statements:
It is properly stated that after dismissal
of the brief prepared by disqualified
counsel, co-counsel did prepare a “new”
brief for Floyd County, incorporating
numerous pages of the dismissed brief. . . .
Where proper arguments of law are presented,
there is no need to recreate the wheel.
State law is state law and the trial record
speaks for itself.
We agree with Ratliff, Grigsby, Thompson and McGuire
that the Board of Education’s brief must be stricken.
-23-
Although
this ruling might appear harsh, this Court had a valid reason to
disqualify appellate counsel on the basis of conflict of
interest.
It is disingenuous for counsel for the Board of
Education to argue that a “new” brief was filed, when counsel
admitted that it contained “numerous pages” of the prior brief.
If the first brief, as drafted by a disqualified attorney, had
to be returned because of the conflict, there is no reason that
a brief containing identical pages, albeit signed by a different
attorney, could ever be acceptable.
Because we are striking the
brief, the Board of Education’s direct appeal is unperfected,
and must therefore be dismissed.
Even if we were to address the merits of the direct
appeal, we would affirm.
We disagree with the assertion that
the Board of Education corrected the open meetings act violation
in a subsequent meeting.
Furthermore, the Board of Education
failed to preserve its damages argument before the circuit
court.
In the cross-appeal, the significant issues are the
amount of damages awarded, the failure to reinstate the
restraining order, the circuit court’s finding that the Board of
Education’s violations of the Open Meetings Act were not
willful, and the ensuing denial of attorney fees.
We must
affirm on the damages argument because we do not have a
transcript of the November 16, 2001, hearing on the issue of
-24-
damages.
Therefore, we shall assume that the missing portion of
the record supports the circuit court’s findings and ultimate
decision.
Furthermore, it appears that Ratliff and Thompson
were fairly compensated, and we agree with the circuit court
that Grigsby’s earlier settlement encompassed all of his claims.
On the issue of injunctive relief, we also affirm.
We
agree that Ratliff, Grigsby, and Thompson were entitled to
injunctive relief.
The Supreme Court of Kentucky held that
injunctive relief was proper.10
Upon remand, the circuit court
cited to this opinion and stated, “[w]ith such direction, it is
clear that this Court must issue an injunction reinstating the
Plaintiffs to their original positions.”
entered October 11, 2001, p. 7.)
(Opinion and Order
Later in the opinion, the
circuit court stated that Ratliff and Thompson were both
entitled to be reinstated to their respective previous
positions.
In its Order and Final Judgment, the circuit court
ordered Ratliff and Thompson to be reinstated to their former
positions for the limited purpose of reimbursing them the money
awarded.
Although the circuit court did not specifically enter
a permanent injunction, as it did in the previously set aside
order, injunctive relief was nevertheless afforded to Ratliff
and Thompson in that they were for a short time reinstated to
their former positions in order for them to receive their
10
Floyd County Board of Education v. Ratliff, 955 S.W.2d at 925.
-25-
damages.
Furthermore, pursuant to the terms of his settlement
agreement, Grigsby was reinstated to his former position as
Assistant Superintendent of Floyd County Schools.
There is
nothing that the Board of Education could do at this point to
enforce their previous actions or retaliate against these
individuals.
Next, we shall address the circuit court’s finding
that the Board of Education’s violations were not willful.
KRS
61.848(6) provides that “[a]ny person who prevails against any
agency in any action in the courts regarding a violation of KRS
61.805 to 61.850, where the violation is found to be willful,
may be awarded costs, including reasonable attorneys’ fees,
incurred in connection with the legal action.”
In its September
7, 2000, judgment, the circuit court based its finding that the
violations were not willful on the Supreme Court of Kentucky’s
original opinion, in which it was noted that there were no
Kentucky cases or statutes regarding the “pending litigation”
exception, as well as on the facts surrounding the meetings in
question.
The circuit court also heavily relied upon the
dissenting opinion of Chief Justice Stephens.
These
circumstances and the Supreme Court’s opinion led the circuit
court to find that the violations were “the result of an honest
mistake as to the application of the Open Meetings Act to the
subject matter under discussion.”
-26-
At the outset, we note that
Ratliff, Grigsby, Thompson and McGuire’s reliance upon the
circuit court’s finding of willfulness in its February 2, 1998,
order is not well taken.
That particular order was set aside by
an order entered several months later.
Furthermore, they failed
to cite to where in the record evidence appeared about the Board
of Education’s knowledge of the illegality of its meeting.
Despite this, we agree with Ratliff, Grigsby, Thompson and
McGuire that substantial evidence does not support the circuit
court’s finding of a lack of willfulness.
The circuit court relied upon the earlier decision of
the Supreme Court of Kentucky, which indicated that there were
no Kentucky cases or statues on this issue, as well as the
dissenting opinion to support its finding.
However, a full
reading of this portion of the decision reveals something
altogether different:
The General Assembly has clearly stated
its legislative intent in regard to closed,
executive or secret meetings. It is set
forth in KRS 61.800:
The General Assembly finds and
declares that the basic policy of
KRS 61.805 to 61.850 is that the
formation of public policy is
public business and shall not be
conducted in secret and the
exceptions provided for KRS 61.810
or otherwise provided for by law
shall be strictly construed.
Consequently, the courts of the
Commonwealth must narrowly construe and
-27-
apply the exceptions so as to avoid improper
or unauthorized closed, executive or secret
meetings.
There are no specific Kentucky cases or
statues relating to the scope of the
“pending litigation” exception which is
found in KRS 61.810(1)(c). We agree with
the Court of Appeals that the drafters of
this legislation clearly envisioned that
this exception would apply to matters
commonly inherent to litigation, such as
preparation, strategy or tactics.
Obviously, anything that would include the
attorney-client relationships would also
fall within this exception. The statute
expressly provides that the litigation in
question need not be currently pending and
may be merely threatened. However, the
exception should not be construed to apply
“any time the public agency has its attorney
present” or where the possibility of
litigation is still remote.[11] As properly
noted in Jefferson County Board of
Education, supra, the matters discussed
under KRS 61.810(1)(c) must not be expanded
to include general discussions of
“everything tangential to the topic.”
A careful review of the circumstances
and record indicates that the Board went
into executive session to consider the
reorganization plan and not pending
litigation. The discussion expanded the
intended scope of the litigation exception
and improperly concealed matters otherwise
appropriate to the view of the public. The
argument by the Board that everyone knew
that the Board was forced into executive
session by threatened litigation is
contradictory to the clear statement of the
minutes which identifies only “personnel” as
the specific reason for going into secret
session. The depositions of several of the
members of the Board indicate that they
11
See Jefferson County Board of Education v. The Courier-Journal, Ky.App.,
551 S.W.2d 25 (1977).
-28-
talked about general reorganization and
restructuring of the central administrative
office, but none of the depositions
indicated that the reason for the closed
meetings was to deal with proposed or
pending litigation. (Emphasis added.)
The personnel exemption to the Open
Meetings Act does not allow a general
discussion concerning a school
reorganization plan when it involves
multiple employees.[12] Reed v. City of
Richmond[13] held that a closed meeting
discussion of matters affecting more than
one employee, even if the facts of each case
were the same, is improper. Here, the Board
argues that there was substantial compliance
with the law because of the so-called veiled
threats of potential litigation which
justified the secret meeting, and that there
was some kind of substantial compliance with
the exception. We cannot agree. As noted
earlier, the exceptions provided by KRS
61.810 must be strictly construed.
KRS 61.815 provides that prior to going
into an executive session, the public body
must state the specific exception contained
in the statute which is relied upon in order
to permit a secret session. There must be
specific and complete notification in the
open meting of any and all topics which are
to be discussed during the closed meeting.
In this case, the minutes of the Board do
not reflect any mention of the “proposed or
pending litigation” exception to the Open
Meetings Act. The specific reason given for
a closed session must be the only topic of
discussion while the Board convenes in such
a secret session.[14]
We agree with the language written by
then Court of Appeals Judge Johnstone and
12
KRS 61.810(1)(f).
Ky.App., 582 S.W.2d 651 (1979).
14
See Fiscal Court v. Courier Journal and Louisville Times Co., Ky., 554
S.W.2d 72 (1977); Jefferson County Board of Education, supra, at 28.
13
-29-
concurred in by the panel composed of Judges
Schroder and Wilhoit that “the exceptions to
the open meetings laws are not to be used to
shield the agency from unwanted or
unpleasant public input, inference or
scrutiny. Unfortunately, we believe that is
precisely how they were used in this case.”
(Emphasis added.)[15]
Based upon our complete reading of the prior decision, we cannot
hold that there is substantial evidence to support the circuit
court’s finding that the violations were not willful, but were
“the result of an honest mistake as to the application of the
Open Meeting Act.”
Rather, the record is clear that the Board
members willfully violated the Open Meetings Act to shield
themselves from the public.
The Board of Education indicated
that it was going into executive session to discuss “personnel”,
but then blamed the threat of litigation as the root of the
session.
However, even if the purpose had been to discuss
“personnel”, the Board of Education was not permitted, by
statute, to discuss the reorganization because it involved more
than one person.
For these reasons, we reverse the circuit
court’s ruling and hold that the Board of Education’s violations
of the Open Meetings Act were willful.
In so holding, we are
not stepping into the shoes of the fact finder, but are merely
applying the law to the facts of this case.
15
Floyd County Board of Education v. Ratliff, 955 S.W.2d at 923-24.
-30-
We shall next address the circuit court’s denial of
the motion to award attorney fees.
KRS 61.848(6) provides for
the award of costs, including reasonable attorney fees, for a
willful violation of the Open Meetings Act.
Because we have
determined that the Board of Education’s violations were
willful, we must reverse the circuit court’s ruling and remand
this matter for a determination as to whether the plaintiffs are
entitled to an award of attorney fees in light of the Board of
Education’s willful violation of the act.
For the foregoing reasons, the motion to strike is
hereby GRANTED, the brief filed by the Board of Education on
April 24, 2003, is ORDERED STRICKEN and as a result, appeal No.
2002-CA-001971-MR is ORDERED DISMISSED.
Cross-appeal No. 2002-
CA-001968-MR is affirmed in part, reversed in part and remanded
for further proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANTS/CROSSAPPELLEES:
BRIEF FOR APPELLEES/CROSSAPPELLANTS:
Michael J. Schmitt
Paintsville, KY
Pierce Butler Whites
Louisa, KY
ORAL ARGUMENT FOR
APPELLANTS/CROSS-APPELLEES:
ORAL ARGUMENT FOR
APPELLEES/CROSS-APPELLANTS:
Jonathan C. Shaw
Paintsville, KY
Richard A. Getty
Lexington, KY
-31-
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