Com. Educ. & Humanities Cabinet Dept. of Educ. v. Gobert, 97-CA-0425-MR
| Decision Date | 03 April 1998 |
| Docket Number | No. 97-CA-0425-MR,97-CA-0425-MR |
| Court | Kentucky Court of Appeals |
| Parties | 131 Ed. Law Rep. 317 COMMONWEALTH of Kentucky EDUCATION & HUMANITIES CABINET DEPARTMENT OF EDUCATION, Thomas C. Boysen (Now Wilmer S. Cody) Appointing Authority, Appellants, v. Carlene F. GOBERT, Donna M. DeSpain and Pamela L. Goins, Appellees. |
John J. Garvey, III, Covington, Kevin M. Noland, Frankfort, for Appellants.
Richard M. Guarnieri, Frankfort, for Appellees.
Before: GUDGEL, Chief Judge; DYCHE and GUIDUGLI, Judges.
The Commonwealth of Kentucky Education & Humanities Cabinet Department of Education, Thomas C. Boysen (now Wilmer S. Cody) Appointing Authority (DOE) appeals from a judgment entered by the Franklin Circuit Court on January 28, 1997, which vacated several hiring decisions made by the DOE and ordered that the positions be classified and described as previously advertised. We affirm.
In January 1995, a branch manager position classified as Exceptional Children Program Manager II became open in the DOE's Division of Exceptional Children Services (DECS). On January 20, 1995, the position was advertised through an internal vacancy announcement. The announcement set forth the minimum qualification requirements as follows:
Graduate of a college or university with a masters degree and full certification by the Kentucky Department of Education in special education (exceptional children education) supplemented by six years of professional experience in the field of education including four years of experience in the area of special education or the education of exceptional children.
Although the requirements specified that a masters degree was required, the last person who held the position had a law degree instead of a masters degree.
Appellees, Carlene Gobert (Gobert) and Pamela Goins (Goins), and three other individuals responded to the advertisement and were interviewed. Following the interviews, Dr. Hal Hayden (Dr. Hayden), Director of DECS, decided not to hire any of the applicants and re-advertised the position to attract a larger candidate pool. The position was advertised again on March 1, 1995, in an internal vacancy announcement.
Later in March 1995, a second position classified as Educational Administration Program Manager II became open. It was also advertised by an internal vacancy announcement which detailed the minimal qualifications as follows:
Graduate of a college or university with a masters degree in education or a closely related field supplemented by six years of professional experience in education, vocational education or a closely related field. Current Rank II or Rank I certification by the Dept. of Education will substitute for the required educational requirement. Additional professional experience in the field of education will substitute for the educational requirement on a year-for-year basis.
Both positions were advertised again on March 22, 1995. Seven additional applications were received, including those of appellee Donna DeSpain (DeSpain), Barbara Kibler (Kibler), and Renee Scott (Scott).
Additional interviews were conducted on April 13, 1995. Persons who had previously applied were informed that although they would not be re-interviewed, they would be considered for both positions.
Following completion of the interview process, Dr. Hayden eliminated Goins from consideration because she did not meet the minimum requirements for either position. DeSpain was eliminated from further consideration from both positions because she stated that she did not wish to supervise other employees, which was an integral part of both jobs. No reason was given as to why Gobert was not hired.
Twelve applicants, including Gobert, Goins, and Kibler, were considered for the Exceptional Children Program Manager II position.
Dr. Hayden decided to hire Kibler on April 15, 1995. Prior to being hired by Dr. Hayden, Kibler had been employed as a chief assistant public advocate with the Department of Public Advocacy for the last twelve years. Although Kibler had a law degree, she did not meet the minimum requirements as advertised for the position. Dr. Hayden believed that Kibler "stuck out like a sore thumb" as the best person for the position because it required monitoring and evaluating hearings, complaints, and litigation.
Realizing that Kibler did not meet the minimum requirements for the position, the DOE requested the Department of Personnel to determine whether she met the minimum requirements for the job classified title of Education Administration Program Manager II. Upon being advised that Kibler met the minimum qualifications for Education Administration Program Manager II, the DOE formally requested that the title of the position be changed from Exceptional Child Program Manager II to Education Administration Program Manager II on May 1, 1995. The DOE's request was approved by the Department of Personnel on May 16, 1995.
On May 17, 1995, the DOE requested the Department of Personnel to prepare a certified register of all applicants eligible for the position of Education Administration Program Manager II. The list was certified on May 23, 1995, and Kibler's name appeared on the list. The position was offered to Kibler on May 26, 1995, and she accepted.
Twelve applicants, including Goins, Gobert, DeSpain and Scott were considered for the position of Education Administration Program Manager II. At the time of her application, Scott was not currently a state employee. Scott had a law degree and a masters in business administration.
Scott was hired by letter dated May 3, 1995. Her hiring was formalized pursuant to the terms of a memorandum of agreement (the memorandum) between the DOE and the Ohio Valley Education Consortium. Pursuant to the terms of the memorandum, Scott was hired as an unclassified employee to carry out the duties of the position. Personnel records show that the classified position remains vacant.
Following the hiring of Kibler and Scott, Gobert, Goins, and DeSpain filed an appeal with the Kentucky Personnel Board (the Board). The appellees argued that the DOE disregarded applicable personnel laws, and requested that the hiring of Kibler and Scott be vacated and that the DOE be ordered to comply with all applicable personnel laws in filling the positions. The Board dismissed their appeals.
Appellees appealed the Board's decision to the Franklin Circuit Court. After considering the parties' arguments, the trial court held that: (1) the DOE acted improperly in requesting a title change before hiring Kibler; and (2) the DOE appointment of Scott was not made in accordance with applicable personnel laws. The trial court vacated the title change of the Exceptional Children Program Manager II position, vacated the hiring of Kibler and Scott, and ordered that both positions be "classified and described, including designation of its minimum qualifications, as it was advertised in March 1995[.]" It is from this order that the DOE now appeals.
Under Kentucky Revised Statutes (KRS) 18A.100, the Franklin Circuit Court is authorized to hear appeals of "any final order of the [personnel] board either upholding or invalidating the dismissal, demotion, suspension, or other penalization of a classified or an unclassified employee[.]" "Penalization" is defined in KRS 18A.005(17) as including "demotion, dismissal, suspension, fines and other disciplinary actions, involuntary transfers; salary adjustments; any action that diminishes the level, rank, discretion, or responsibility of an employee without proper cause, including a reclassification or reallocation; and the abridgement or denial of other rights granted to state employees [.]" (emphasis added).
The DOE argues that none of the appellees was penalized by the hiring of Kibler and Scott. The DOE contends that it actually broadened the rights of the appellees by considering all of them for both positions instead of the position each had applied for. The DOE also points to the problems associated with the lack of qualifications of Goins and the statements made by DeSpain during her interview and the lack of proof as to why it would have been better to hire Gobert as opposed to Scott or Kibler as proof that the appellees were not penalized. We disagree.
As to Goins, we cannot understand how the DOE can argue that she was not penalized by the hiring of Kibler. As shown by the facts, she was eliminated from further consideration due to her lack of qualifications while the DOE bent over backwards to hire Kibler, who also failed to meet the minimum requirements for the position she applied for. If this does not constitute an "abridgment or denial of other rights granted to state employees," we cannot imagine what would.
We also agree with the appellees' argument that they were penalized by the DOE's failure to follow applicable personnel laws in filling the two positions. The trial court found that the DOE had failed to comply with applicable law in hiring Kibler and Scott, and that this non-compliance resulted in penalization, not the DOE's failure to hire any of the appellees.
As pointed out by the DOE, the Kentucky Department of Personnel has created a system under which each position in the state classified service is given...
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