SAJKO (CARA) VS. JEFFERSON COUNTY BOARD OF EDUCATION , ET AL.Annotate this Case
RENDERED: SEPTEMBER 19, 2008; 10:00 A.M.
TO BE PUBLISHED
MODIFIED: DECEMBER 12, 2008; 10:00 A.M.
SUPREME COURT GRANTED DISCRETIONARY REVIEW:
APRIL 15, 2009
(FILE NO. 2009-SC-0021-DG)
Commonwealth of Kentucky
Court of Appeals
APPEAL AND CROSS-APPEAL
FROM JEFFERSON CIRCUIT COURT
HONORABLE W. DOUGLAS KEMPER, JUDGE
ACTION NOS. 05-CI-009088 & 05-CI-009091
JEFFERSON COUNTY BOARD OF
EDUCATION; JEFFERSON COUNTY
SCHOOLS; AND STEPHEN
MODIFYING AND REVERSING
** ** ** ** **
BEFORE: LAMBERT AND MOORE, JUDGES; BUCKINGHAM, SENIOR JUDGE.1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
BUCKINGHAM, SENIOR JUDGE: Cara Sajko appeals from an order of the Jefferson
Circuit Court affirming an order of a tribunal that upheld the school superintendent’s
termination of Sajko’s employment as a teacher in the Jefferson County school system.
The school system cross appeals from a portion of the court’s order, including the portion
that affirmed the determination that the tribunal had jurisdiction to consider Sajko’s
defense to the charges. Because we conclude that the tribunal lacked jurisdiction, we
agree with the school system’s cross appeal and thus reverse.
Sajko had been employed as a teacher in the Jefferson County school
system for a number of years. During the time in question (2003-2004 and 2004-2005
school years), she was a teacher at Louisville Male Traditional High School. Sajko’s
actions involving her treatment of students led to the school principal taking action in the
form of reprimands and directives to Sajko in an effort to stop her inappropriate behavior.
Sajko was twice suspended without pay when she failed or refused to follow the
In January 2005, Sajko was advised that she must submit to an occupational
evaluation to determine whether she had any health problems that could affect her
performance as a teacher. When Sajko refused to submit to the evaluation, the
superintendent, Stephen W. Daeschner, suspended her without pay pending
recommendation that her employment be terminated.
On March 28, 2005, the superintendent caused a seven-page letter from him
to be hand-delivered to Sajko informing her that he was terminating her employment on
the grounds of her insubordination and conduct unbecoming a teacher. See Kentucky
Revised Statutes (KRS) 161.790(1)(a) and (b). The superintendent cited specific
instances in the letter and stated that Sajko was terminated due to “the seriousness of the
violations” and Sajko’s “previous disciplinary record that includes two suspensions and
numerous reprimands and warnings.”
The letter also advised Sajko that she could answer the charges and contest
the termination by providing notice to him and to the commissioner of the Kentucky
Department of Education within 10 days after receiving the letter. Additionally, the letter
stated that the termination would be final if Sajko failed to provide the notice within that
time. The applicable statute, KRS 161.790(3), was referenced.
The statute states:
Prior to notification of the board, the superintendent shall
furnish the teacher with a written statement specifying in detail
the charge against the teacher. The teacher may within ten
(10) days after receiving the charge notify the commissioner
of education and the superintendent of his intention to answer
the charge, and upon failure of the teacher to give notice within
ten (10) days, the dismissal shall be final.
On April 7, 2005, exactly ten days after receipt of the superintendent’s
letter, Sajko’s attorney sent a facsimile letter (fax) to the office of the school board’s
general counsel indicating that Sajko intended to answer the charges against her and that
copies of the notice would be sent to the appropriate parties.2 The fax was not sent until
after regular business hours. The superintendent and the commissioner received their
copies the following day, 11 days after Sajko had received the termination letter.
As provided in KRS 161.790(4), a three-member tribunal was appointed to
consider Sajko’s termination. Prior to the tribunal hearing, a hearing officer considered
the school system’s motion to dismiss Sajko’s appeal on the ground that her notice was
Sajko’s appellate counsel did not represent her at this stage of the proceedings.
not delivered in a timely manner and that the termination was therefore final. See KRS
161.790(3) and (5). That motion was denied after the hearing officer determined the
statute was ambiguous.
The tribunal heard evidence for eight days and found that Sajko was guilty
of insubordination in violation of KRS 161.790(1)(a). The tribunal concluded, however,
that Sajko did not engage in conduct unbecoming a teacher. In the tribunal’s final order,
it found that “Sajko would consider any reduction in the sanction as vindication of her
inappropriate teaching methods and her unacceptable responses to Male High School
officials’ directives.” Thus, the tribunal affirmed the superintendent’s decision to
terminate Sajko’s teaching contract.
Both sides sought review from the Jefferson Circuit Court. See KRS
161.790(8); KRS 13B.140(1); James v. Sevre-Duszynska, 173 S.W.3d 250, 256 (Ky.App.
2005). The court affirmed the tribunal’s decision to terminate Sajko’s teaching contract
based on insubordination. The court also affirmed the tribunal’s finding that Sajko was
not guilty of conduct unbecoming a teacher. In addition, the court affirmed the decision
that the tribunal had jurisdiction to hear Sajko’s defense.
In its cross appeal the school system again contends that the tribunal was
without jurisdiction to hear Sajko’s defense. It argues that Sajko failed to give notice to
the superintendent and the commissioner within ten days after she received notice of the
charge from the superintendent. Thus, the school system maintains that the tribunal erred
in hearing the case and that the circuit court erred in affirming the tribunal’s jurisdiction.
Sajko states in her reply brief that she “denies actually receiving the
Schools’ termination letter on March 28, 2005.”3 She then contends that even if that date
is accurate, the notice she provided was timely under the provisions of the statute.
First, Sajko argues that the facsimile transmission of her intent that was sent
to the school board’s attorney on the tenth day “should constitute constructive notice” to
the superintendent. We disagree. Even if the letter constitutes constructive notice to the
superintendent, it does not constitute such notice to the commissioner. Furthermore,
notice to the school board’s attorney does not strictly comply with the requirement of
KRS 161.790(3) that the superintendent and commissioner be notified. See Roberts v.
Watts, 258 S.W.2d 513 (Ky. 1953), wherein the court held:
The right of appeal in administrative as well as other
proceedings does not exist as a matter of right. When the
right is conferred by statute, a strict compliance with its terms
Sajko next maintains that “KRS 161.790(3) is satisfied when the notice is
placed in the mail.” In other words, she contends that by mailing certified letters to the
superintendent and the commissioner on the tenth day after she received notice of the
charge, she satisfied the statutory requirement even though those letters were not received
until the following day. Sajko asserts that it would be a “very harsh result” to bar a
teacher’s right to challenge his or her termination “where the teacher certified and mailed
the required notice within the statutory window, but the required notice was not actually
In her briefs Sajko does not cite to the record or make further argument in this regard. The
circuit court noted, however, that Sajko received the termination letter on March 28, 2005. That
Sajko received the letter on that date is supported by the affidavits of two school employees and
by the testimony of Sajko’s union representative.
received until one day after that period ended.” She contends that the mailing of the
letters, not their receipt, satisfies the notice requirement of the statute. We disagree.
In Energy Regulatory Commission v. Kentucky Power Co., 605 S.W.2d 46,
51 (Ky.App. 1980), this court stated that “[w]e believe that it is not the sending but the
receipt of a letter that constitutes true notice.” In Baldwin v. Fidelity Phenix Fire Ins. Co.
of New York, 260 F.2d 951, 953-54 (6th Cir. 1958), the court stated that “[i]t is not,
therefore the sending, but the receipt, of a letter that will constitute notice.”
As neither the superintendent nor the commissioner received Sajko’s letter
notifying them of her intent within ten days of her receipt of the superintendent’s letter,
Sajko failed to strictly comply with the notice requirements of the statute.4 Sajko’s
failure to meet the timely notice requirement denied the tribunal jurisdiction to consider
her defense to the charges.
The order of the Jefferson Circuit Court is reversed, and this case is
remanded for the entry of an order upholding Sajko’s termination, pursuant to KRS
161.790(3), based upon the tribunal’s lack of jurisdiction to consider the matter.
BRIEF FOR APPELLANT/CROSS
BRIEF FOR APPELLEE/CROSS
Jeffrey S. Walther
W. Scott Hunt
Byron E. Leet
Lisa C. DeJaco
We do not imply that there must be personal service on the superintendent and the