FITZGERALD (KIMBERLY) VS. 2007-CA-001539 MCFALL (MICKEY), ET AL.
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RENDERED: MARCH 13, 2009; 2:00 P.M.
NOT TO BE PUBLISHED
ORDERED PUBLISHED: JUNE 5, 2009; 10:00 A.M.
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001403-MR
KIMBERLY FITZGERALD
v.
APPEAL FROM CLINTON CIRCUIT COURT
HONORABLE EDDIE C. LOVELACE, JUDGE
ACTION NO. 06-CI-00153
MICKEY MCFALL, IN HIS OFFICIAL CAPACITY
AS SUPERINTENDENT OF THE CLINTON COUNTY
PUBLIC SCHOOLS; BOARD OF EDUCATION OF
CLINTON COUNTY, KENTUCKY; KEVIN NOLAND,
IN HIS OFFICIAL CAPACITY AS ACTING CHIEF
STATE SCHOOL OFFICER; AND MICHAEL HEAD,
IN HIS OFFICIAL CAPACITY AS HEARING
OFFICER
AND
APPELLEES
NO. 2007-CA-001539-MR
MICHAEL HEAD, IN HIS OFFICIAL CAPACITY
AS HEARING OFFICER AND AS AN ASSISTANT
ATTORNEY GENERAL
v.
APPELLANT
APPEAL FROM CLINTON CIRCUIT COURT
HONORABLE EDDIE C. LOVELACE, JUDGE
ACTION NO. 06-CI-00153
APPELLANT
MICKEY MCFALL, IN HIS OFFICIAL CAPACITY
AS SUPERINTENDENT OF THE CLINTON COUNTY
PUBLIC SCHOOLS; BOARD OF EDUCATION OF
CLINTON COUNTY, KENTUCKY; KIMBERLY
FITZGERALD; AND KEVIN NOLAND, IN HIS
OFFICIAL CAPACITY AS ACTING CHIEF STATE
SCHOOL OFFICER
APPELLEES
OPINION
AFFIRMING IN PART AND REVERSING IN PART
** ** ** ** **
BEFORE: DIXON AND NICKELL, JUDGES; BUCKINGHAM,1 SENIOR
JUDGE.
DIXON, JUDGE: In Case No. 2007-CA-001403, Appellant, Kimberly Fitzgerald,
appeals from an order of the Clinton Circuit Court reversing the decision of an
Administrative Hearing Officer in this teacher termination action brought by
Appellees, Mickey McFall, in his official capacity as Superintendent of the Clinton
County Public Schools; and the Board of Education of Clinton County
(Collectively “the School District”). The trial court remanded the matter for
further proceedings before the hearing tribunal. In the companion case, 2007-CA1539, Appellant, Michael Head, in his official capacity as Hearing Officer, also
appeals from the trial court’s denial of his motion to dismiss him as a named party
to the action. For the reasons set forth herein, we affirm in part and reverse in part
the lower court.
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
(KRS) 21.580.
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Fitzgerald was a special education teacher with the Clinton County
School District. Pursuant to a school board policy, Fitzgerald was chosen for
random drug screening on March 9, 2006. Upon receiving the medical review
officer’s report indicating that Fitzgerald’s urine tested positive for propoxyphene,2
and after inquiring whether she could provide a doctor’s prescription to explain the
presence of the drug, Superintendent McFall sent Fitzgerald a letter notifying her
that her employment contract was being terminated. The letter, dated April 25,
2006, provided in pertinent part:
The general charge for suspension and termination
of your employment is conduct unbecoming a teacher
under KRS [Kentucky Revised Statutes] 161.790(1)(b).
....
The positive test on your urine specimen is a
violation of Board Policy 03.13251 and as well a
violation of the Professional Code of Ethics for
Kentucky Schools Certified Personnel which
provides in pertinent part, at 16 KAR [Kentucky
Administrative Regulations] 1:020, Section
1(3)(a)(3), that certified personnel in the
Commonwealth “[s]hall take reasonable measures
to protect the health, safety, and emotional wellbeing of students.” Section 1(3)(c)(1) provides
that certified personnel “[s]hall exemplify
behaviors which maintain the dignity and integrity
of the profession”; the effect of these violations
constitutes conduct unbecoming a teacher under
KRS 161.790(1)(b) and serves as good and
sufficient basis for the suspension and termination
of your employment contract with the school
district.
2
Propoxyphene is commonly known by the trade name Darvon or Darvocet.
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Fitzgerald thereafter requested a hearing before a tribunal pursuant to
Kentucky Revised Statutes (KRS) 161.790. Michael Head, from the Kentucky
Attorney General’s Office, Division of Administrative Hearings, was appointed as
the Hearing Officer.
At the conclusion of the School District’s case-in-chief, Fitzgerald
moved for a directed verdict, arguing that there was no evidence that she was
impaired or under the influence of propoxyphene while teaching. Granting the
motion, Hearing Officer Head concluded:
Board Policy 03.13251 prohibits illegal drug activity
only while a certified employee is on duty, performing
their duties, or at a workplace. The policy does not
address certified personnel actions while off-duty. The
proof did not show that Ms. Fitzgerald had propoxyphene
in her system at the time of the test, only that she must
have taken propoxyphene in the few days preceding the
drug test.
The proof showed only that Ms. Fitzgerald had
norpropoxyphene in her system on the day of the test.
Ms. Fitzgerald was not charged with having
norpropoxyphene in her system on the day of the test,
and it is not a violation of Board Policy 03.13251 if she
ingested propoxyphene while off-duty and no longer had
it in her system on the day of the test.
For these reasons, Ms. Fitzgerald did not violate Board
Policy 03.13251.
Hearing Officer Head did not address whether Fitzgerald’s conduct was
nevertheless an ethical violation or conduct unbecoming a teacher.
The School District then sought review in the Clinton Circuit Court.
On cross-motions for judgment, the trial court ruled that Hearing Officer Head had
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erroneously “supplanted his opinion of the facts for those of the tribunal, which
was a clear violation of the limited authority given to him under KRS
167.790(5)[,]” and that the question of whether the School District “presented
evidence of sufficient value to warrant termination of a teacher is a decision to be
determined by the tribunal and not the hearing officer.” The trial court vacated the
dismissal order and directed Hearing Officer Head to conduct a new termination
hearing before the tribunal. Fitzgerald thereafter appealed to this Court.
Fitzgerald argues on appeal that the trial court erred in determining
that Hearing Officer Head lacked the authority to grant a directed verdict.
Fitzgerald contends that not only is a directed verdict a procedural matter within a
hearing officer’s statutory authority under KRS 161.790, but that his decision to
grant such in this case was appropriate in light of the deficiency of the evidence
presented by the School District. We disagree.
KRS 161.790(4) provides that upon notice of a teacher’s intent to
answer the charges filed against him or her, the commissioner of education shall
appoint a three-member tribunal consisting of one retired teacher, one
administrator, and one layperson, none of whom reside in the district, to conduct a
hearing in accordance with KRS Chapter 13B. Pursuant to KRS 161.790(5) a
hearing officer, also appointed by the commissioner of education, “shall have final
authority to rule on dispositive pretrial motions.” However, “[a]t the hearing, a
hearing officer . . . shall preside with authority to rule on procedural matters, but
the tribunal shall be the ultimate trier of fact.” KRS 161.790(6).
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Fitzgerald relies upon the decision in Koo v. Commonwealth of
Kentucky, Department for Adult and Technical Education, 919 S.W.2d 531 (Ky.
App. 1995), wherein a panel of this Court held that a hearing officer under Chapter
13B has the authority to grant a directed verdict against the party bearing the
burden of proof. Indeed, the panel stated, “Hearing officers are afforded great
deference when considering and weighing evidence. To require that the party not
having the burden of proof go forward, when the hearing officer is unpersuaded by
the case presented by the party bearing such burden, would be a futile exercise.”
Id. at 533. However, Koo addressed such authority in the context of a hearing
officer who serves the functions of both judge and jury. Clearly, under KRS
161.790, only the tribunal is the “ultimate trier of fact.”
In fact, in Frankhauser v. Cobb, 163 S.W.3d 389, 405 (Ky. 2005), our
Supreme Court explicitly observed that in administrative hearings regarding
teacher terminations, “the tribunal enabling statute is unusual in that it divides the
administrative authority and responsibilities between the three-member tribunal
and a hearing officer[.]” Thus, the authority of the hearing officer under KRS
161.790 differs substantially from other administrative proceedings wherein the
hearing officer decides both issues of procedure and substance.
Given the plain language of KRS 161.790, we must conclude that
Hearing Officer Head exceeded his limited authority by granting the directed
verdict and dismissing the charges against Fitzgerald. Clearly, the ultimate factfinders under the statute are the tribunal members. Thus, whether the school
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district presented sufficient evidence to warrant the termination of Fitzgerald was
within the sole determination of the tribunal. Further, to accept Fitzgerald’s
argument that a directed verdict is merely procedural would render KRS
161.790(5) superfluous. If such were the case, then the hearing officer’s authority
to rule on prehearing dispositive motions would not need to be specifically
provided for. As we cannot conclude that the General Assembly intended to enact
futile legislation, we must reject Fitzgerald’s interpretation of the statute. See
Reyes v. Hardin County, 55 S.W.3d 337 (Ky. 2001); Aubrey v. Office of the
Attorney General, 994 S.W.2d 516 (Ky. App. 1998).
Because we agree with the trial court that the hearing officer exceeded
the limited authority granted in KRS 161.790 by dismissing the charges prior to
any determination by the tribunal, we specifically do not address the sufficiency of
the evidence against Fitzgerald. We agree with the trial court that such is within
the province of the tribunal on remand.
Next, we turn to Hearing Officer Head’s argument on cross-appeal
that the trial court erred in denying his motion to dismiss him as a party to this
action. In its final order, the trial court stated:
Since this Court is vacating Honorable Michael Head’s
“directed verdict” order and directing him to conduct a
new hearing pertaining to the termination of Fitzgerald as
a teacher with the Clinton County Schools, this Court
believes he should be named as a party to this action.
However, Hearing Officer Head argues that the only real parties in interest are
Fitzgerald and the School District, and he should not have been required to
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participate in this appeal. Hearing Officer Head points out that contrary to
Fitzgerald’s argument, he is subject to any remand order from the trial court, or
this Court, regardless of whether he is a named party to the action. We agree.
KRS 161.790(9) provides that a teacher has the right to appeal any
decision of the tribunal to the circuit court having jurisdiction in accordance with
KRS Chapter 13B. Under KRS 13B.140(1), “A party shall institute an appeal by
filing a petition . . . . The petition shall include the names and addresses of all
parties to the proceeding and the agency involved[.]” Further, KRS 13B.010(3)
defines “party” as:
(a) The named person whose legal rights, duties,
privileges, or immunities are being adjudicated in the
administrative hearing;
(b) Any other person who is duly granted intervention in
an administrative hearing; and
(c) Any agency named as a party to the adjudicatory
proceeding or entitled or permitted by the law being
enforced to participate fully in the administrative hearing.
There simply is no statutory provision requiring that the hearing officer in an
administrative proceeding under KRS 161.790 be named as a party on appeal.
Nor are we persuaded by the School District’s attempt to analogize
this matter to a mandamus petition. The School District contends that because
Hearing Officer Head acted outside of his jurisdiction, it is necessary that he be
named as a party so that it can “seek a remand order which compels certain
conduct by the hearing officer on remand.” Further, the School District argues that
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Hearing Officer Head’s position seeks to “deprive a trial court the ability to give
exactly this nature of directive upon juridical review.”
We would observe that the School District has asserted no authority
for applying the extraordinary relief afforded by a mandamus action. Nor do we
find any basis for concluding that this type of appeal warrants such action. A
hearing officer is clearly not a party to an administrative proceeding under KRS
161.790 and does not fall within the definition of a party as defined by KRS
13B.010(3). Moreover, a hearing officer would be required to follow the mandates
of an appellate court as would any other lower court on remand from an appeal.
Thus, we conclude that it is not necessary or proper to name the hearing officer as
a party on appeal from an administrative proceeding instituted pursuant to KRS
161.790.
Accordingly, in Case No. 2007-CA-001403, we affirm the Clinton
Circuit Court’s decision vacating Hearing Officer Head’s order dismissing the
charges against Fitzgerald, and directing a new termination hearing before the
tribunal. In Case No. 2007-CA-001539, we reverse the trial court’s order denying
Hearing Officer Head’s motion to dismiss him as a party to the action. The matter
is remanded to the trial court for an order in accordance with this opinion.
ALL CONCUR.
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BRIEF FOR APPELLANT
KIMBERLY FITZGERALD:
Michael A. Rains
Thomas E. Carroll
Monticello, Kentucky
BRIEF FOR APPELLANT
MICHAEL HEAD, IN HIS
OFFICIAL CAPACITY AS
HEARING OFFICER:
BRIEF FOR APPELLEES MICKEY
MCFALL, SUPERINTENDENT OF
CLINTON COUNTY PUBLIC
SCHOOLS; AND BOARD OF
EDUCATION OF CLINTON
COUNTY, KENTUCKY:
Robert L. Chenoweth
Grant R. Chenoweth
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Tad Thomas
Assistant Deputy Attorney General
Frankfort, Kentucky
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