ROBERTS (CINDY) VS. CABINET FOR HEALTH AND FAMILY SERVICES , ET AL.Annotate this Case
RENDERED: OCTOBER 31, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 06-CI-00529
CABINET FOR HEALTH AND FAMILY
SERVICES, COMMONWEALTH OF KENTUCKY;
JOHN P. HAMM, APPOINTING AUTHORITY; AND
PERSONNEL BOARD, COMMONWEALTH OF
** ** ** ** **
BEFORE: THOMPSON AND VANMETER, JUDGES; HENRY,1 SENIOR
THOMPSON, JUDGE: Cindy Roberts appeals from an order of the Franklin
Circuit Court affirming an order of the Kentucky Personnel Board (Board). The
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
Board's order adopted the hearing officer's findings of fact, conclusions of law, and
order recommending Roberts’ dismissal. For the reasons stated herein, we affirm.
On November 3, 2004, the Cabinet for Health and Family Services
(Cabinet) notified Roberts that it intended to seek her dismissal. At the time of the
notification, Roberts was employed as a Social Service Clinician I for the Cabinet.
The letter cited three grounds as the basis of her dismissal: (1) the falsification of
her employment application due to her failure to sufficiently disclose her criminal
history; (2) her recent commission of criminal offenses including driving under the
influence, resisting arrest, and escape; and (3) her failure to report the physical
abuse of a client.
On December 2, 2004, Roberts attended a pre-termination hearing
where she was provided an opportunity to explain why she should not be
dismissed. On December 8, 2004, Roberts was notified by letter that she was
officially dismissed from the Cabinet based on the allegations cited in the initial
letter. After she appealed her dismissal, a hearing officer conducted an evidentiary
hearing and then issued findings of fact, conclusions of law, and an order
recommending Roberts’ dismissal.
In his findings of fact, the hearing officer found that Roberts did not
intentionally falsify her employment application. While finding that Roberts failed
to report the physical abuse of a client, the hearing officer found this failure was
greatly mitigated by Roberts’ supervisor’s failure to train her to enter such events
into the computer system. The hearing officer, however, did find that Roberts’
misdemeanor convictions in 1998 and 2004 were incompatible with her position as
a social worker and related to her capacity and fitness to perform her duties. The
hearing officer found that this conduct constituted a lack of good behavior pursuant
to 101 KAR 1:345.2
On March 21, 2006, the Personnel Board adopted the hearing officer’s
findings of fact, conclusions of law, and recommended order terminating Roberts’
employment from the Cabinet. After Roberts appealed, the trial court issued an
order on September 12, 2007, affirming the Board's decision to terminate Roberts’
employment. This appeal followed.
Roberts contends that her dismissal was contrary to existing law
because she could not be terminated for committing misdemeanors. Citing KRS3
18A.146(2), she contends that state merit employees can only be terminated “for
cause” for the commission of felony offenses. We disagree.
Although KRS 18A.146(2) provides that any “state employee who is
convicted of a felony may be subject to . . . dismissal from the state service,” the
legislature has not limited a state employee’s permissible dismissal to his
commission of a felony criminal offense. To the contrary, any employee’s
conduct, including off-duty behavior, which directly conflicts with or jeopardizes
an employee’s capacity to effectively perform his or her job can serve as sufficient
grounds for dismissal. Perkins v. Stewart, 799 S.W.2d 48, 51 (Ky.App. 1990).
Kentucky Administrative Regulations (KAR).
Kentucky Revised Statutes (KRS).
While every “private short coming” does not merit dismissal, conduct which harms
the “‘legitimate interests of the government’” can result in an adverse employment
action. Id., quoting Board of Educ. of Hopkins County v. Wood, 717 S.W.2d 837,
840 (Ky. 1986). Therefore, the fact that Roberts did not commit a felony offense
did not preclude her dismissal from state employment.
Roberts next contends that her dismissal was unsupported by
substantial evidence and was excessive considering all of the circumstances of her
case. She contends that there was no proof that her professional responsibilities
had been compromised or that the public had lost confidence in her capacity to do
her job. She further contends that other employees had not been terminated for
committing DUIs, and thus, her punishment was excessive. We disagree.
Our standard of review for evaluating the circuit court's affirmation of
the Board’s decision is whether there is substantial evidence in the record to
support the Board's findings. Kentucky Comm’n on Human Rights v. Fraser, 625
S.W.2d 852, 856 (Ky. 1981). Under this standard, a board’s findings of fact must
be accepted as conclusive if they are supported by substantial evidence of
probative value. Kentucky Unemployment Ins. Comm’n v. Landmark Cmty.
Newspapers of Kentucky, Inc., 91 S.W.3d 575, 578 (Ky. 2002).
Substantial evidence is evidence that has sufficient probative value to
create conviction in the mind of a reasonable person when taken alone or in light of
all the evidence. Gosney v. Glenn, 163 S.W.3d 894, 898 (Ky.App. 2005). If the
findings of fact are supported by substantial evidence of probative value, the court
must then determine whether or not the agency has applied the correct rule of law
to the facts. Landmark, 91 S.W.3d at 578.
An appellate court cannot decide whether alternative disciplinary
actions should have been made available to the dismissed employee, but rather, we
limit our review to whether the dismissal was arbitrary. Kentucky Bd. of Nursing
v. Ward, 890 S.W.2d 641, 642 (Ky.App. 1995). Regardless of our view of the
penalty, we can only reverse if the Board’s decision to dismiss was “arbitrary and
capricious or a clear abuse of discretion.” City of Louisville v. Milligan, 798
S.W.2d 454, 458 (Ky. 1990).
Based on the facts of this case, the Board’s decision to dismiss
Roberts was supported by substantial evidence. On October 7, 1998, Roberts was
convicted of public intoxication (alcohol); she was convicted of resisting arrest and
escape on March 31, 2004; and she was convicted of a DUI on July 20, 2004.
While Roberts contends that her crimes did not occur during her working hours
and did not affect her job performance, her off-duty conduct directly conflicted
with and jeopardized her capacity to effectively perform her job.
In this case, Roberts’ continued engagement in alcohol-related
conduct was in direct conflict with her responsibilities to provide social services to
Kentucky’s citizens. Specifically, Roberts’ job responsibilities required her to
transport children and drive herself within her service area. Her alcohol-related
conduct certainly provided the Cabinet with sufficient grounds to prevent Roberts
from exposing citizens to the unnecessary risks associated with drinking and
driving. Although the record does not reveal that Roberts drove her clients while
under the influence, the Cabinet was not required to delay action until such
conduct occurred. Therefore, under the circumstances of this case, Roberts’ offduty conduct constituted sufficient grounds to terminate her employment.
Further, Roberts’ contention that other employees who committed
DUIs were not punished is insufficient to reverse the Board’s decision. Our role is
not to “second-guess” the Board’s decision regarding employee discipline but to
ensure that its decision was not “arbitrary and capricious or a clear abuse of
discretion.” Milligan, 798 S.W.2d at 458. In this case, the Board’s grounds for
dismissing Roberts were not arbitrary and capricious.
Roberts next contends that the Board violated KRS 335B.030 when it
dismissed her. Specifically, she contends that the Board did not notify her that
committing misdemeanors could result in her dismissal. She further contends that
the Board impermissibly expanded its statutory power by citing legal authority
which the legislature had not expressly permitted the Cabinet to apply. We
The Board’s dismissal of Roberts did not run afoul of KRS 335B.030.
KRS 335B.030 does not require advance notice to employees of what conduct
would justify dismissal. Moreover, it should be clear to all employees that conduct
which jeopardizes an employee’s capacity to satisfactorily accomplish her job
responsibilities could lead to her dismissal. Further, despite the Cabinet’s citation
to multiple legal authorities, Roberts’ dismissal was solely based on her history of
The Cabinet made the determination that it was inappropriate to allow
Roberts to advise citizens regarding drug dependency when she continued to have
dependency issues herself. The Cabinet also determined that it was unwise to
permit Roberts to transport citizens or herself on Kentucky’s roadways with her
history of driving under the influence. Regardless of the Cabinet’s legal citations,
Roberts’ dismissal was supported by substantial evidence and was proper under
Roberts next contends that her constitutional due process rights were
violated when a ground for dismissal listed in her notice of intent to dismiss was
substantially altered when it was listed in her notice of dismissal. However, the
altered ground listed in her notice of dismissal was not the basis of her dismissal.
The altered ground related to her failure to report the physical abuse of a client
while her dismissal was solely based on her history of alcohol abuse. Therefore,
we conclude that Roberts’ constitutional rights were not violated.
For the foregoing reasons, the opinion and order of the Franklin
Circuit Court is affirmed.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Alea Amber Arnett
Cabinet for Health and Family
Office of Legal Services