ARCH TURNER; DAVID NAPIER; MICHAEL BOWLING; AND REGGIE HAMILTON, APPELLANTS
ALICIA RITCHIE, INDIVIDUALLY, AND JANE DOE, APPELLEES
FROM BREATHITT CIRCUIT COURT HONORABLE FRANK ALLEN FLETCHER,
JUDGE ACTION NO. 11-CI-00314.
FOR APPELLANTS: Jonathan C. Shaw Paintsville, Kentucky
FOR APPELLEES: J. Dale Golden Mary Lauren Melton Lexington,
BEFORE: ACREE, J. LAMBERT, AND THOMPSON, JUDGES.
Turner, David Napier, Michael Bowling, and Reggie Hamilton,
officials in the Breathitt County school system, have taken
an interlocutory appeal from the order of the Breathitt
Circuit Court denying their request for qualified official
immunity in their individual capacities. Having carefully
considered the record and the applicable case law, we hold
that the actions of the school officials were discretionary
and that they were entitled to qualified official immunity.
Therefore, we reverse the circuit court's order and
shall begin with an introduction of the parties and other
figures related to this case as well as a brief recitation of
the rather complicated factual background. Arch Turner was
the Superintendent of Breathitt County Schools, David Napier
was an assistant superintendent of Breathitt County Schools,
Reggie Hamilton was the Principal of Sebastian Middle School
(SMS), which is in the Breathitt County school system, and
Michael Bowling was a teacher at SMS(hereinafter, collectively, defendants or
appellants). Charles (Andy) Mitchell was a teacher at SMS
until 2011. Jane Doe attended SMS in 2008 and 2009, when it
educated 7th through 9th grade
students. Alicia Ritchie is Jane Doe's
was Jane Doe's 8th grade social studies
teacher, and they began texting and using Facebook to send
messages to each other during the summer of 2009 before she
entered the 9th grade. The texting went on for
about two years. They began sending each other pictures of
their genitalia, and in January 2010 they started a sexual
relationship. Jane Doe would go to his classroom to have
sexual relations with him before school started while the
other students were in the gymnasium or eating breakfast in
the cafeteria. She reported that they engaged in sexual
intercourse five times and she performed oral sex on him
three times. She and Mitchell went out of their way to hide
their relationship from others, and the sexual relationship
continued during her 9th grade year. It ended when
she went to high school, although their friendship continued.
Jane Doe said they stopped communicating when she discovered
Mitchell had been messaging with another student. Ritchie did
not find out about Jane Doe's relationship with Mitchell
until August of 2011, when Detective Gay was conducting an
confirmed that Jane Doe would go to his classroom both in the
morning and at other times of the day. He would lock the
door, and they would have sex behind his desk. His last
sexual encounter with Jane Doe was in March or April of 2010,
and he last spoke with her in May 2011. He admitted that he
had unsuccessfully solicited sex from other students as well.
2010, Hamilton (the principal of SMS) learned that Mitchell
had been texting a student, A.R., and had sent her more than
100 text messages in one night. A.R.'s parents came to
Hamilton's office to tell him about this. While the
student's father expressed some concern over the number
of messages sent, he did not mention any sexual content
present in the messages. The student's mother had
discovered the messages and posed as her daughter as she
communicated with Mitchell. Mitchell did not send any
inappropriate messages during that time. Turner (the
superintendent) investigated the matter. At Turner's
request, Hamilton attempted to retrieve the messages from
Mitchell and the police, but he was only able to obtain the
billing summary, not the actual messages. At that time, the
school had an acceptable usage policy with regard to texting
and emailing. Mitchell admitted to having texted A.R., but he
said it was about guitar lessons, not anything of a sexual
nature. Mitchell was suspended for the last two weeks of the
2009-2010 school year due to the number of text messages he
had sent and for his failure to produce the text messages
when requested. He was also placed on growth and corrective
action plans, and he was required to complete ethics
training. Mitchell returned to teaching the following school
2011, a different student brought to Bowling (a teacher) an
iPod that contained screen shots of Facebook messages between
Mitchell and another student, D.T. He did not look at all of
the messages or see any of a sexual nature, but rather he
took the iPod to Hamilton. Hamilton read some of the
messages, which contained graphic, sexually explicit
material. However, he believed he needed to investigate the
authenticity of the information because it came from a third
party. Hamilton contacted the school's IT person as well
as Turner and Napier (the assistant superintendent), and they
began an investigation. In addition, Hamilton contacted
D.T.'s parents, who adamantly denied this had happened,
stated the messages were not real, and refused to come in for
a meeting. Mitchell ultimately resigned after this incident.
incident was reported to police, although the defendants were
aware that they had a duty to immediately report the sexual
abuse of a child to police and social services pursuant to
Kentucky Revised Statutes (KRS) 620.030. A few weeks after
the 2011 incident, the police notified the school about an
four defendants were charged with failure to report child
dependency, neglect, or abuse related to the 2011 incident.
In September 2012, the defendants and the special prosecutor
agreed to a stipulation of facts that was adopted by the
district court. The facts provide in relevant part as
6. On or about May 8, 2011, a student approached Defendant
Michael Bowling indicating she had something she thought he
7. What she showed him was an Apple iPod touch, which is an
electronic device shaped like an iPhone, but without the
capability of making or receiving phone calls. The device
does have wireless access to the internet.
8. On the iPod touch, the student showed Defendant Bowling
that she had "screen shots" of a conversation she
alleged took place on Facebook between another student, D.T.,
and another teacher at SMS, Andy Mitchell.
9. After looking at the first few screen shots, Defendant
Bowling took the iPod to Defendant Reggie Hamilton.
10. Defendant Hamilton reviewed the screen shots.
11. Defendant Hamilton contacted Defendant David Napier to
advise him of what he received and asked him to come to the
12. Phillip Watts, the school IT Specialist, was called to
print copies of the screen shots from the iPod.
13. Defendants Napier and Hamilton also wanted Phillip
Watts' opinion as to the legitimacy of the alleged
conversation and Watts advised that the screen shots looked
real, but he could not tell whether they were from an actual
conversation or from a hacked or staged Facebook account.
14. The girl that submitted the iPod to Defendant Bowling
indicated that she knew D.T.'s password and had access to
her Facebook account.
15. It was further determined that none of the alleged
communication occurred using any school equipment.
16. All of this information was given to Defendant Arch
17. After conferring, school officials determined it was
appropriate to investigate these allegations.
18. D.T., the student alleged to be in the relationship with
Andy Mitchell, and her mother, [C.T.], were interviewed.
19. Both D.T. and [C.T.] denied that any relationship existed
or that any communications had taken place.
20. [C.T.] also indicated she had found nothing related to
these conversations or otherwise incriminating on her home
21. Andy Mitchell also denied any involvement.
22. As part of the investigation, numerous co-workers of Andy
Mitchell and students were interviewed as to whether or not
they had ever seen any inappropriate behavior ...