REVIEW FROM COURT OF APPEALS CASE NO.
2014:CA-001081-MR FRANKLIN CIRCUIT COURT NO.
COUNSEL FOR APPELLANT: Shawna Virgin Kincer Kentucky State
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
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 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.
Factual and Procedural Background.
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. 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.
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 2:034 which permits salary adjustments
only for merit employees of the same class within the same
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.
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.
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.
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.
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
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 ...