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Pennyrile Allied Community Services, Inc. v. Rogers

Supreme Court of Kentucky

February 19, 2015

PENNYRILE ALLIED COMMUNITY SERVICES, INC., APPELLANT
v.
KATRICIA ROGERS, APPELLEE

Released for Publication May 14, 2015.

ON REVIEW FROM COURT OF APPEALS. CASE NO. 2012-CA-000204-MR. PERRY CIRCUIT COURT NO. 11-CI-00405.

COUNSEL FOR APPELLANT: Robert Dmitri Bobrow, David Eugene Crittenden, Boehl, Stopher & Graves, LLP.

COUNSEL FOR APPELLEE: Anthony James Bucher, B. Dahlenburg Bonar, P.S.C.

OPINION OF THE COURT BY JUSTICE VENTERS. All sitting. Minton, C.J., Abramson, Cunningham, Keller and Venters, JJ., concur. Noble, J., dissents by separate opinion.

OPINION

Page 340

VENTERS, JUSTICE.

KRS 61.102, commonly known as the Kentucky " whistleblower" statute, prohibits reprisal against a public employee " who in good faith reports, discloses, divulges . . . any facts or information relative to actual or suspected mismanagement, waste, fraud, abuse of authority or otherwise brings to the attention of . . . [an] appropriate body or authority, or any facts or information relative to actual or suspected mismanagement, waste, fraud, abuse of authority, or a substantial and specific danger to public health or safety." Pursuant to KRS 61.101, the whistleblower protections and remedies apply to employees of state government and any of its political subdivisions.[1] The purpose underlying

Page 341

the statute is " to discourage wrongdoing in government, and protect those who make [such wrongdoing] public." Workforce Dev. Cabinet v. Gaines, 276 S.W.3d 789, 792 (Ky. 2008).

This case presents two issues: 1) must a government employee's report or disclosure touch on a matter of public concern in order to come within the protections of the statute; and 2) whether Appellee's conduct qualifies as a disclosure within the meaning of the statute?

For the reasons stated below, and based upon the plain language of the statute, we conclude that KRS 61.102 does not require an employee's report or disclosure to touch on a matter of public concern. We further hold that none of the reports and disclosures presented by the facts here fit within the protections afforded by the statute.

I. PROCEDURAL AND FACTUAL BACKGROUND

Appellee, Katricia Rogers (Rogers), was an at-will employee of Appellant, Pennyrile Allied Community Services, Inc. (PACS). PACS is a government program focused on rural development. Rogers was responsible for presenting educational programs at schools. Because of the nature of her work, Rogers traveled around the state and was often working out of the office.

Rogers worked under the supervision of Dennis Gibbs (Gibbs), a Regional Supervisor. Gibbs frequently traveled to the homes of his subordinates to ensure that they were actually working rather than spending the day at home. In September of 2001, Gibbs went to check on Rogers. He drove up Rogers's driveway, which was marked " private property," and caused minor damage to the gravel driveway when his vehicle got stuck. Later that day, Gibbs informed Rogers of the incident. She made no complaint about Gibbs's conduct at this time.

Later, however, Rogers went to the local sheriff's office and asked a deputy if Gibbs's practice of making uninvited visits to employees' homes was legal. The deputy opined that no one, " employer or not," could come on private property without permission, and that doing so would constitute trespassing. Rogers took no immediate action in response to that information.

About two months later, at a PACS staff meeting that included Gibbs and other PACS employees, Rogers challenged Gibbs about his unannounced visits to employees' homes during work hours. She began by asking Gibbs what he was authorized to do with regard to checking on his employees to ensure they were actually working. Gibbs responded, somewhat defiantly, that he could do whatever he wanted, including going to the workers' homes and looking into their windows.

Rogers then mentioned the opinion given to her at the sheriff's office and implied that she would seek prosecution of Gibbs if he trespassed upon her property again. The meeting ended abruptly. The next morning, Rogers was fired for insubordination and other reasons.[2] PACS admits that the decision to terminate Rogers was made after Rogers's remarks at the staff meeting.

Rogers then filed suit under KRS 61.102, claiming that she had been terminated from her job for making " a good faith report to local law enforcement officers and representatives of PACS . . . regarding an actual or suspected violation of

Page 342

the law." The trial court granted summary judgment to PACS, dismissing Rogers's whistleblower claim on the ground that Rogers's report or disclosure of Gibbs's alleged trespass did not touch on a matter of public concern. The trial court reasoned that Rogers's statements to the deputy at the sheriff's office and to Gibbs at the staff meeting were nothing more than the expression of a personal grievance that did not disclose illegality, fraud, waste, or abuse of authority in state government, or violations of the law.

On direct appeal, the Court of Appeals reversed the trial court, holding that the unambiguous language of KRS 61.102 contained no requirement that reports under the act must touch upon a matter of public concern, and that it was therefore beyond the authority of the courts to interject such a requirement. We granted discretionary review to consider the important questions presented by this matter.

II. ANALYSIS

On discretionary review before this Court, PACS acknowledges that KRS 61.102 contains no explicit language requiring that disclosures and reports protected by the statute must " touch on a matter of public concern." But as grounds for reversing the Court of Appeals opinion, PACS argues that the legislative intent behind the statute clearly contemplates such a requirement. As an alternate ground for reversal, PACS argues that Rogers never made the kind of report or disclosure covered by the statute. PACS contends that neither her conversation with the deputy sheriff about Gibbs's behavior, nor her confrontation of Gibbs at the PACS meeting was subject to KRS 61.102.

This case is purely a matter of statutory construction and interpretation, which is a question of law. Accordingly, this Court's review is de novo. Neurodiagnostics, Inc. v. Kentucky Farm Bureau Mut. Ins. Co., 250 S.W.3d 321, 325 (Ky. 2008). KRS 61.102 provides:

No employer shall subject to reprisal, or directly or indirectly use, or threaten to use, any official authority or influence, in any manner whatsoever, which tends to discourage, restrain, depress, dissuade, deter, prevent, interfere with, coerce, or discriminate against any employee who in good faith reports, discloses, divulges, or otherwise brings to the attention of the Kentucky Legislative Ethics Commission, the Attorney General, the Auditor of Public Accounts, the Executive Branch Ethics Commission, the General Assembly of the Commonwealth of Kentucky or any of its members or employees, the Legislative Research Commission or any of its committees, members or employees, the judiciary or any member or employee of the judiciary, any law enforcement agency or its employees, or any other appropriate body or authority, any facts or information relative to an actual or suspected violation of any law, statute, executive order, administrative regulation, mandate, rule, or ordinance of the United States, the Commonwealth of Kentucky, or any of its political subdivisions, or any ...

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