Behanan v. Cobb, No. 2005-CA-002170-MR (Ky. App. 2/2/2007)
| Decision Date | 02 February 2007 |
| Docket Number | No. 2005-CA-002170-MR.,2005-CA-002170-MR. |
| Parties | Russell W. BEHANAN; Dr. Peter Flynn; and the Board of Education of Fayette County, Kentucky, Appellants v. Melinda Lewis COBB, Appellee. |
| Court | Kentucky Court of Appeals |
Robert L. Chenoweth, S. Shea Luna, Frankfort, Kentucky, Brief for Appellants.
J. Dale Golden, Eddie Wilson, Lexington, Kentucky, Brief for Appellee.
Robert L. Chenoweth, Frankfort, Kentucky, Oral Argument for Appellants.
J. Dale Golden, Lexington, Kentucky, Oral Argument for Appellee.
Before: ACREE and TAYLOR, Judges; ROSENBLUM,1 Senior Judge.
OPINION AFFIRMING IN PART AND REVERSING IN PART
Russell Behanan, Peter Flynn, and the Board of Education of Fayette County (Board) bring this appeal from a jury verdict of the Fayette Circuit Court awarding compensatory and punitive damages totaling $3.5 million in favor of Melinda Cobb. Finding error, we affirm in part and reverse in part.
The Fayette County Public Schools (FCPS) hired Melinda Cobb to serve as the principal for Leestown Middle School (Leestown) for the 1997-98 school year. Cobb's contract was renewed for the 1998-99 school year. Cobb had previously worked for various public schools in the Commonwealth, but this was her first job within the FCPS. During that time, Russell Behanan was the Director of Middle Schools for the FCPS and was Cobb's immediate supervisor. Peter Flynn was the Superintendent of the FCPS and was Behanan's immediate supervisor. Cobb experienced a considerable amount of conflict with several members of the school's staff during her first year as principal at the school. She continued to have problems with certain members of her staff and with a small group of parents during her second year as principal.
Following Cobb's second year as principal, Behanan recommended to Flynn that she not be employed for the 1999-2000 school year. On May 14, 1999, Flynn delivered to Cobb an extensive seventeen-page "termination packet," which detailed a variety of factual charges against Cobb and notified her that, absent an answer to the charges, her employment would be terminated. The termination packet alleged that Cobb had violated KRS 161.790(1) by insubordination, conduct unbecoming a teacher, inefficiency, and incompetence. The termination packet also described in detail the factual allegations underlying the charges, namely: (1) complaints about Cobb's interaction with parents, her staff, and the Site Based Decision Making (SBDM) Council at the school; (2) her failure to properly perform the "Day 4"2 count of students; (3) her improper conduct related to her employee evaluation; and, (4) her carrying and possession of a gun on school property in violation of the Board's express policy. Cobb elected to answer the charges leveled against her. Pursuant to KRS 161.790(4), a three-member tribunal was convened to hear evidence of the charges and Cobb's response to the charges. The administrative hearing was held in August 1999 and lasted for twelve days.
The tribunal issued its written findings of fact, conclusions of law, and final order in September 1999. It found that Cobb had regularly carried a loaded gun on school property and that she had failed to report accurately the number of students attending Leestown in the "Day 4" count. The tribunal also found that Cobb had made inappropriate comments to parents and staff and that she had had numerous problems and conflicts with parents, staff, and SBDM members, but that all the parties were at fault for those problems and conflicts. Finally, the tribunal found the Board had committed "major procedural errors" in evaluating Cobb's performance.
As a result of these findings, the tribunal concluded that the Board had met its burden of showing a violation of KRS 161.790 only as to two of the charges, to wit, that Cobb was guilty of "inefficiency and incompetency" for failing to properly perform the "Day 4" count and "insubordination and conduct unbecoming a teacher" for bringing a gun onto school property. The tribunal then determined that the "appropriate sanction and punishment" for the two violations was a reprimand for the erroneous "Day 4" count and a suspension without pay until the end of the 2000-2001 school year, a total of two years, for the violation of the weapons policy. The tribunal also specifically concluded that Cobb's inappropriate comments were not sufficient to warrant sanctions.
The Board appealed the tribunal's decision to the Fayette Circuit Court, and Cobb cross-appealed. The court reviewed the lengthy administrative record compiled before the tribunal and issued an opinion upholding the tribunal's ruling. It found substantial evidence to support the tribunal's ruling and held that there was no prejudicial error in the procedures used by the hearing officer who presided at the hearing. The court affirmed the tribunal order and findings. Upon appeal, both this court and the Kentucky Supreme Court affirmed the tribunal's decision.3
Prior to her termination, Cobb and the SBDM became the subject of an investigation by the Office of Education Accountability (OEA). Responding to the inquiries of the OEA, Cobb provided information alleging wrongdoing by other employees of the FCPS. Cobb also sought an advisory opinion from the office of general counsel for the commissioner of the Kentucky Department of Education (KDE). Cobb's initial complaint was filed (April 1999) before the administrative hearing was conducted (August-September 1999). She filed various amended complaints alleging several causes of action. Ultimately, the trial court allowed two causes of action to be presented to a jury, to wit, a statutory claim under Kentucky's Whistleblower Act against the Board, and a tort claim of wrongful use of administrative proceedings against Flynn and Behanan.
On June 13, 2005, a five day jury trial began on Cobb's claims. The jury returned a verdict against all Appellants, granting $500,000.00 in punitive damages against the Board under the Whistleblower Act; $500,000.00 each in punitive damages against Flynn and Behanan for wrongful use of administrative proceedings; and, $2,000,000.00 compensatory damages jointly against Flynn and Behanan for wrongful use of administrative proceedings for a total award of $3.5 million. The Fayette Circuit Court entered a judgment on the verdict and subsequently awarded Cobb attorney's fees and costs totaling more than $500,000.00. This appeal followed.
Kentucky's Whistleblower Act4 protects state employees from reprisal for reporting actual or suspected agency violations of the law. In order to demonstrate a violation of the Act, an employee must establish the following four elements: (1) the employer is an officer of the state; (2) the employee is employed by the state; (3) the employee made or attempted to make a good faith report or disclosure of a suspected violation of state or local law to an appropriate body or authority; and, (4) the employer took action or threatened to take action to discourage the employee from making such a disclosure or to punish the employee for making such a disclosure. Woodward v. Commonwealth, 984 S.W.2d 477, 480-81 (Ky. 1998). The employee must show by a preponderance of evidence that "the disclosure was a contributing factor5 in the personnel action." KRS 61.103(3). The burden of proof is then on the state employer "to prove by clear and convincing evidence that the disclosure was not a material fact in the personnel action." Id.
The Board avers that the court's jury instruction was erroneous regarding the elements of a whistleblower claim. We disagree.
The Board argues that the jury instruction6 did not allow the Board an opportunity to have the jury determine whether, even if the disclosure was a "contributing factor," it was, nonetheless, not a "material factor" in the personnel decision to fire Cobb. The Board cites Com., Dept. of Agriculture v. Vinson, 30 S.W.3d 162, 169 (Ky. 2000) for the proposition that "the employer now has an affirmative burden of proving by clear and convincing evidence that the report was not a material fact in the personnel action." The Board argues that the instruction given by the court incorrectly stated the law and allowed the jury to impose liability based on proof of a prima facie case without consideration of the burden shift.
We agree that the burden shifted to the Board to prove by clear and convincing evidence that the disclosures made by Cobb were not a material factor in the decision to terminate her employment. However, we do not agree that the instructions to the jury need to be tailored to consider every possible scenario under the Act. The instructions need only provide the "bare bones" of the pertinent questions for the jury, and those can be further fleshed out by counsel during closing arguments. Cox v. Cooper, 510 S.W.2d 530, 535 (Ky. 1974). In essence, the Board argues that the jury should have been instructed to weigh each party's burden in turn. The Board does not cite any relevant authority for its argument and it is contrary to Kentucky law. See Meyers v. Chapman Printing Company, Inc., 840 S.W.2d 814, 824 (Ky. 1992)("In Kentucky jury instructions do not include evidentiary presumptions."). See also, Brooks v. Lexington-Fayette Urban County Housing Authority, 132 S.W.3d 790 (Ky. 2004). Instructions should not explain evidentiary matters, evidentiary presumptions or contain unnecessary detail. Meyers, 840 S.W.2d at 824. After reviewing the instruction, we find nothing erroneous or so confusing that the jury could not reach a reasonable verdict based on the evidence.
Additionally, the Board argues that the trial court erred when it failed to instruct the jury to determine whether Behanan or Flynn "knew or had constructive knowledge" of Cobb's...
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