JIMMY ROSS v. COMMONWEALTH OF KENTUCKY, JUSTICE AND PUBLIC SAFETY CABINET, DEPARTMENT OF JUVENILE JUSTICE; AND KENTUCKY PERSONNEL BOARD
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RENDERED:
SEPTEMBER 2, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002064-MR
JIMMY ROSS
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 03-CI-00675
v.
COMMONWEALTH OF KENTUCKY,
JUSTICE AND PUBLIC SAFETY CABINET, 1
DEPARTMENT OF JUVENILE JUSTICE; AND
KENTUCKY PERSONNEL BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
MINTON, SCHRODER AND TAYLOR, JUDGES.
SCHRODER, JUDGE:
A state merit employee with status appeals a
circuit court judgment affirming the Kentucky Personnel Board’s
dismissal for cause.
The severity of disciplinary action is a
Board matter that was not excessive in light of its finding of
inappropriate behavior.
1
Formerly the Justice Cabinet.
Jimmy Ross was hired by the Department of Juvenile
Justice (D.J.J.) at the Adair Youth Development Center in
Columbia, Kentucky, on October 27, 2000, as a Youth Worker I. 2
After training and successful completion of probation, he was
promoted to Youth Worker II.
K.H. was a 17-year-old female
resident of the Adair Youth Development Center from October 5,
2001, to December 27, 2001 (while Ross was on staff).
After
K.H. was transferred from the facility to the Mayfield Group
Home, Ross admittedly sent her a photograph of himself with the
accompanying letter:
K3,
What’s up baby girl? I just got off
work and thought that I would drop a few
lines. So, hows work?? I hope you are
still in school. Like I always say, keep
doing good so that you can get out own your
own. Because, when you do get out of
D.J.J.’s control, we can see each other.
So, that should be enough to keep you own
task and do whats right.
So, what the hell; was you wrighting
about in your last letter about me and other
girls? You are asking questions that you
shouldn’t. Do I ask you shit like that?
I’m not mad or anything like that, but
please don’t do it again. I know that life
has started over for you again their but I
keep you in my mind and spirit here. Just
rember that!! Whats up with some surgery
2
Ross has a degree in elementary education and social services and has
taught from 1996 through 1998.
3
K.H.’s actual name was given in the letter.
original.
-2-
Also, grammar and spelling are
you was having last Wed? Whats wrong with
ya? Here is a kiss to make it better.
I’m not one to put things on paper,
because you never know what could happen to
it so I’ll keep most of the good things to
myself for now. I just wanted to let you
know that I miss you and wish you the best
of luck in life. So, when people put their
hands on you, you, tell the right people
about it.
Just in case that you forgot what I
looked like here is a couple of pictures of
me. Keep in touch.
Much Love
“Big Jim”
I’m sorry, but I could only send one
picture becaus the other one was too big, so
I will draw the second one! ha ha!
When the D.J.J. discovered the letter and picture, it
conducted an investigation and decided to terminate Ross’s
employment.
The D.J.J. notified Ross on May 7, 2002, that he
had a right to a pre-termination hearing, which was conducted on
May 21, 2002.
On May 24, 2002, the D.J.J. notified Ross in a
letter that his employment was terminated based upon probable
cause that during a period from October 5, 2001, through
December 27, 2001, he had an inappropriate and unprofessional
relationship with a female resident at the Adair Youth
Development Center based on the letter and picture, and for
other reasons that were eventually dropped.
-3-
The termination
letter also stated the conduct violated the following D.J.J.
policies:
102, Professional Practices;
104, Employee Code of Conduct; and
106.11, Sexual Harassment.
Ross filed an appeal with the Kentucky Personnel
Board.
A hearing was conducted on October 22, 2002, and on
December 18, 2002.
The Hearing Officer upheld the D.J.J.’s
termination and Ross appealed to the Personnel Board.
The Board
made these findings of fact and conclusions of law in upholding
Ross’s termination:
FINDINGS OF FACT
1. Jimmy Ross was a Youth Worker II at
Adair Youth Development Center during 2001.
2. Youth (KH) was a female resident of the
Adair Youth Development Center while Ross
was a staff person there.
3. After she was moved from the facility,
Ross admittedly wrote the letter introduced
as Appellee’s Exhibit 1 to KH, which letter
was accompanied by a photograph of himself.
4. Based upon the language in Ross’ letter
to KH (Appellee’s Exhibit 1), Ross clearly
had an inappropriate relationship with a
resident of the facility in which he was a
youth worker. He violated DJJ Policy 104 by
engaging in a relationship which was not
professional and violated Adair SOP 104 by
contacting a former resident.
5. The Hearing Officer has carefully
reviewed all the evidence and testimony in
the record in this case, attempting to give
the Appellant the benefit of every doubt.
-4-
Nevertheless, it is impossible to ignore the
language and clear implications of an
emotional relationship contained in Ross’
letter to KH (Appellee’s Exhibit 1).
6. Notwithstanding Ross’ predicted
explanations for the contents of Appellee’s
Exhibit 1, the language contained therein
and the tone of the letter is not that which
would be expected of a professional dealing
at arm’s length with a troubled resident of
a youth facility.
7. Clearly there existed an inappropriate
relationship between Ross and KH. The fact
that the letter (Appellee’s Exhibit 1) was
sent is enough evidence to establish a
relationship which was not professional and
is clearly an inappropriate relationship
between a youth worker and a resident or
former resident of the facility. This
finding is supported by Ross’ admission that
he learned KH was planning to run away from
her foster home but did not tell DJJ staff.
CONCLUSIONS OF LAW
1. The Appellant was in violation of DJJ
Policy No. 102, “Professional Practices,”
DJJ Policy No. 104, “Employee Code of
Conduct,” and DJJ Policy No. 106.11, “Sexual
Harassment.”
2. The Appellant was guilty of poor
behavior and unsatisfactory work performance
in violation of 101 KAR 1:345, Section 1.
Appointing authorities may discipline
employees for lack of good behavior or
the unsatisfactory performance of
duties.
3. Under all of the surrounding
circumstances, the Appellant’s violation of
policy was egregious enough to sustain a
dismissal.
-5-
4. The evidence does not support the
conclusion that the actions of the Appellee
were arbitrary and capricious or that there
was any violation of KRS 18A.165 or KRS
18A.145.
The circuit court affirmed the Personnel Board’s decision and
Ross filed an appeal to this Court.
Ross presents three arguments for this Court to
consider.
First, Ross contends the dismissal was excessive and
erroneous.
He presented a former supervisor’s opinion that a
three-day suspension would have been appropriate.
KRS
18A.095(2) authorizes penalizations, up to and including
dismissal, for cause, which includes a lack of good behavior.
KRS 18A.095(23)(c) allows the State Personnel Board to review
the penalization and “[i]f the board finds that the action taken
by the appointing authority was excessive or erroneous in view
of all the surrounding circumstances, the board shall direct the
appointing authority to alter, modify, or rescind the
disciplinary action[.]”
The circuit court weighed the policies with the
disciplinary action taken.
The court summarized D.J.J. Policy
No. 104: 4
4
Section II “O” of policy 104 provided: “Staff contact with current and
former clients and their families shall be limited to their prescribed work
hours and duties or shall have the advance approval of the Superintendent.”
After Ross sent the letter, Section II was amended to add “Q” which states:
“Staff members shall not engage in any type of communication with youth i.e.
written, or telephonically outside the scope of their duties.” Section “O”
was retained as Section “R”.
-6-
“Employees shall conduct themselves in a
professional manner. Staff shall be aware
that their personal conduct reflects upon
the integrity of the agency and its ability
to provide services to youth. . .Employees
shall be expected to maintain a professional
relationship with youth at all times. . .An
Employee shall not Enter into a dating or
sexual relationship with a youth or formerly
committed youth under the age of eighteen.”
The court then reviewed the letter in question and concluded:
This note is patently inappropriate. Any
reasonable person recognizes its sexual
references, flirtations, and romantic
overtones. The Personnel Board properly
determined such conduct offensive, and this
Court is in no position to overrule this
finding of fact. See Mill Street Church of
Christ v. Hogan, Ky.App. 785 S.W.2d 263
(1990). Further, D.J.J. Policy No. 104
unequivocally prohibits this behavior, both
before and after it explicitly prohibited
all communications with youth outside
professional duties. Therefore, the letter
alone substantially proves Petitioner’s
flagrant misconduct.
We agree with the circuit court.
The letter was
inappropriate and the punishment was not too severe.
Termination is an extreme sanction but was appropriate
considering the D.J.J. obligation to the youth (and their
parents) of the Commonwealth.
The penalty cannot be changed by
this Court unless the Board (the administrative agency
conducting the review) was arbitrary and capricious, or clearly
abused its discretion.
See City of Louisville v. Milligan, 798
S.W.2d 454, 458 (Ky. 1990).
-7-
Ross’s second argument contends the Board’s decision
was not supported by substantial evidence and was contrary to
law.
Ross does not deny writing the letter, only that the
inappropriate relationship has neither evidentiary support nor
legal support, in that D.J.J. Policy 104 in effect at the time
the letter was written did not contain “the communication
prohibition”.
The language of the letter speaks for itself.
As
far as what D.J.J. Policy 104 prohibits, it is clear that
Section II “O” (now “R”) of the policy prohibited “Staff contact
with current and former clients and their families shall be
limited to their prescribed work hours and duties or shall have
the advance approval of the Superintendent.”
effect when the letter was written by Ross.
This policy was in
What was added to
the policy afterwards was “Q” which specifically prohibited
letters and phone calls to former residents.
The letter was a
communication to K.H. and even if a supervisor approved sending
a letter, Ross went beyond the directions given and clearly went
beyond the professional relationship.
As to the evidentiary support, although the Board has
the burden of proof, we believe the Board’s findings are
supported by substantial evidence.
Substantial evidence is that
which has sufficient probative value to induce conviction in the
minds of reasonable men.
Wade v. Commonwealth, Dept. of
Treasury, 840 S.W.2d 215, 218 (Ky.App. 1992).
-8-
Ross’s final contention is that the notice of
dismissal from the D.J.J. failed to comply with KRS 18A.095(8)
in that Ross was not given a specific statutory or regulatory
violation, nor specific action or activity and the names of the
parties involved, and the letter in question was sent after the
period of time mentioned in his written notification.
Goss v.
Personnel Board, 456 S.W.2d 819 (Ky. 1970) made it clear that
when an agency terminates or penalizes a status employee, the
notice required “shall be in sufficient detail to enable the
employee to ‘reply thereto in writing’, or to appear before and
‘reply’ to the head of the department or his agent.”
821.
Id. at
Also, “mere allegations of ‘incompetency’ or
‘inefficiency’ are not enough and that ‘the facts of the
incompetency must be alleged.’”
Id. (citation omitted).
Under
the Goss test, we must ask if the notice of termination was
sufficient in detail to enable Ross to reply to the charges.
In
reviewing the notice, with the surrounding circumstances, we
believe the notice was sufficient.
being terminated.
The notice told Ross he was
The specific reason or activity was for an
inappropriate and unprofessional relationship with a female
resident between October 5, 2001, through December 27, 2001,
which was the same time that K.H. was a resident.
was addressed
K.H. was.
to K.H.
The “letter”
Ross wrote the letter so he knew who
He was told the relationship was based on probable
-9-
cause based on his letter and his picture that he sent K.H.
Although the letter was mailed after K.H. was transferred, the
letter implicates a relationship that existed when K.H. was a
resident at the Adair Youth Development Center, October 5, 2001,
through December 27, 2001.
The notice also gives D.J.J. Policy
104, Employee Code of Conduct, as being the violation.
After
reviewing the first argument above, we conclude the notice of
violation or regulation was sufficient.
For the foregoing reasons, the judgment of the
Franklin Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Donald Duff
Frankfort, Kentucky
Paul F. Fauri
Frankfort, Kentucky
BRIEF FOR APPELLEE
COMMONWEALTH OF KENTUCKY,
JUSTICE AND PUBLIC SAFETY
CABINET, DEPARTMENT OF
JUVENILE JUSTICE:
Angela E. Cordery
Frankfort, Kentucky
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