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Kentucky State Police v. Scott

Supreme Court of Kentucky

August 24, 2017



          COUNSEL FOR APPELLANT: Shawna Virgin Kincer Kentucky State Police

          COUNSEL FOR APPELLEE: David F. Broderick Brandon T. Murley Broderick & Davenport, PLLC

          COUNSEL FOR AMICUS CURIAE KENTUCKY PERSONNEL CABINET: Rosemary Holbrook Office of Legal Services Kentucky Personnel Cabinet.



         As a general rule, persons aggrieved by administrative actions must exhaust their administrative remedies before seeking redress in the courts. The primary issue we must resolve in this case is whether the failure of Terry Scott and Damon Fleming to appeal denial of their respective grievances against the Kentucky State Police ("KSP") by the Personnel Cabinet, under KRS[1] Chapters 13B and 18A, precludes their subsequent action filed in Franklin Circuit Court. We hold that exhaustion of administrative remedies was required in this case and therefore reverse to the trial court with instructions to dismiss this action.

         I. Factual and Procedural Background.

         Scott and Fleming were each hired in 2002 as an Arson Investigator II by KSP. In late 2004, KSP hired Mark Boaz as an Arson Investigator II for the Henderson Post. Boaz's starting salary was $38, 083 per annum, the midpoint authorized salary for the position. At the time of Boaz's hire, Scott, assigned to the Elizabethtown Post, earned $31, 578 per annum, and Fleming, assigned to the Madisonville Post, was earning $31, 261 per annum.[2] As noted by both the circuit court and Court of Appeals, Boaz told Scott that he had negotiated a higher salary; Scott then relayed this information to Fleming.

         In May 2006, Scott and Fleming filed internal grievances concerning Boaz's higher rate of compensation in comparison to their rate of compensation. The dates the grievances were filed are not exactly clear from the record; however, on May 25, 2006, the KSP Commissioner denied Fleming's grievance based on 101 KAR[3] 2:034 which permits salary adjustments only for merit employees of the same class within the same county.[4]

         Both Scott and Fleming filed appeals with the Personnel Board. Scott's appeal was filed on May 25, 2007; Fleming's appeal was filed on June 4, 2007. They alleged that Boaz's hire and rate of pay had been motivated by his having changed his political voting registration to coincide with that of the incumbent governor.

         With respect to Scott, the hearing officer found that Scott knew or should have known no later than February 28, 2006, that Boaz had been hired as an Arson II investigator at a certain salary. As to Fleming, the hearing officer found that he knew or should have known no later than March 1, 2006, of Boaz's hire, class and salary.

         The grievances were denied based on KRS 18A.095(29), which states

Notwithstanding any other prescribed limitation of action, an employee that has been penalized, but has not received a written notice of his or her right to appeal as provided in this section, shall file his or her appeal with the Personnel Board within one (1) year from the date of the penalization or from the date that the employee reasonably should have known of the penalization.

         The Personnel Board's Hearing Officer issued Findings of Fact, Conclusions of Law and Recommended Orders dismissing both Scott's and Fleming's appeals on September 20, 2007. Those Recommended Orders set out Scott's and Fleming's Exception and Appeal rights under KRS 13B.140 and KRS 8A.100');">18A.100. Apparently, no exceptions were filed and the Personnel Board entered its Final Orders in conformity with the Hearing Officer's recommendations on October 16, 2007. The Board's Final Order also noted the appeal rights under KRS 13B.140 and KRS 8A.100');">18A.100.

         Neither Scott nor Fleming filed an appeal with the Franklin Circuit Court, as directed by statute. Instead, in August 2009, the two filed a verified complaint and petition for declaration of rights as an original action in the Franklin Circuit Court. The factual allegations were that Boaz was hired at a substantially higher salary than Scott or 'Fleming despite having less law enforcement experience than they had, and KSP had failed to pre-certify Boaz under the Peace Officer Professional Standard in accordance with KRS 15.382, .388. The allegations were that these hiring discrepancies were due to Boaz's changing his political registration from Democrat to Republican (to coincide with that of then incumbent Governor Fletcher). The first count of the complaint alleged a violation of KRS 18A. 140, and a denial of freedom of association and equal protection as guaranteed by the Kentucky Constitution '§§ 1-3, and the United States Constitution Amendments 1 and 14, thereby entitling Scott and Fleming to compensatory and punitive damages. The second count alleged a violation of KRS Chapter 15.

         KSP removed the case to federal court due to Scott's and Fleming's assertion of violations of their federal civil rights. In a memorandum opinion, the district court dismissed the federal claims with prejudice, and remanded the state claims back to the Franklin Circuit Court. Fleming v. Ky. State Police, 3:09-35-DCR, 2010 WL 881907 (E.D. Ky., Mar. 5, 2010). Following remand, Scott and Fleming amended their complaint two ...

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