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Turner v. Ritchie

Court of Appeals of Kentucky

January 6, 2017



          BRIEFS FOR APPELLANTS: Jonathan C. Shaw Paintsville, Kentucky

          BRIEF FOR APPELLEES: J. Dale Golden Mary Lauren Melton Lexington, Kentucky



          J. LAMBERT, JUDGE:

         Arch 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 remand.

         We 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[1](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 mother.[2]

         Mitchell 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 investigation.

         Mitchell 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.

         In May 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 year.

         In May 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.

         Neither 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 investigation.

         All 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 follows:

6. On or about May 8, 2011, a student approached Defendant Michael Bowling indicating she had something she thought he should see.
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 school.
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 Turner.
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 computer.
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 ...

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