Commonwealth v. Veitch
| Decision Date | 15 July 2016 |
| Docket Number | NO. 2015-CA-000008-MR,NOS. 2014-CA-001973-MR,S. 2014-CA-001973-MR,2015-CA-000008-MR |
| Parties | COMMONWEALTH OF KENTUCKY, PUBLIC PROTECTION CABINET; DAVID A. DICKERSON, SECRETARY, PUBLIC PROTECTION CABINET; KENTUCKY HORSE RACING COMMISSION; AND MARC GUILFOIL, EXECUTIVE DIRECTOR, KENTUCKY HORSE RACING COMMISSION APPELLANTS v. JOHN VEITCH; AND COMMONWEALTH OF KENTUCKY PERSONNEL BOARD APPELLEES AND JOHN VEITCH CROSS-APPELLANT v. COMMONWEALTH OF KENTUCKY, PUBLIC PROTECTION CABINET; DAVID A. DICKERSON, SECRETARY, PUBLIC PROTECTION CABINET; KENTUCKY HORSE RACING COMMISSION; MARC GUILFOIL, EXECUTIVE DIRECTOR, KENTUCKY HORSE RACING COMMISSION; AND COMMONWEALTH OF KENTUCKY PERSONNEL BOARD CROSS-APPELLEES |
| Court | Kentucky Court of Appeals |
TO BE PUBLISHED
APPEAL FROM FRANKLIN CIRCUIT COURT
On July 8, 2005, the then-Secretary of the Environmental and Public Protection Cabinet, LaJuana S. Wilcher, submitted a formal request to then-Governor Ernie Fletcher for approval to appoint Veitch to the position of "Chief State Stewart."1 Then-Governor Fletcher signed the request, as did Erwin Roberts, who was the Personnel Cabinet Secretary. Veitch received a Form No. P-1 from the Personnel Cabinet, which labeled his pay grade as "00," his class code as "0191," and his salary as $7,070.04 per month. The appointing authority listed on the form was Wilcher.
When Veitch was hired as Chief State Steward, a classified (a.k.a. "merit") job code existed for the same job title.2 Its title code was "3845," and its pay grade was a "17," with a monthly salary range between $3,688.28 and $4,886.38. That job was administratively abolished in March of 2006. Veitch never held the classified job, nor did he receive the substantially lower classified salary.
Veitch was Chief State Steward from July 16, 2005, until he was terminated by letter on November 28, 2011.3 The letter was signed by HollyMcCoy-Johnson. McCoy-Johnson was the Executive Director for the General Administrative and Programmatic Shared Services for the Public Protection Cabinet. She had previously received a Personnel Cabinet Authorization Signature Form giving her the authority to sign notices of dismissal for the Public Protection Cabinet. The Secretary of the Public Protection Cabinet, Robert D. Vance, also had the authority to sign notices of dismissal for the Public Protection Cabinet. Robert M. Beck, Jr., the KHRC's Chairman, and Marc Guilfoil, the KHRC's Acting Executive Director, concurred with Secretary Vance's decision to terminate Veitch from his job as Chief State Steward.
Veitch appealed his employment termination to the Kentucky Personnel Board. Following an evidentiary hearing, the hearing officer issued findings of fact, conclusions of law, and a recommended order. Concerning the issues now before us, the hearing officer concluded that Veitch was a non-merit employee, and Secretary Vance did not have the authority to fire Veitch. Both Veitch and the Public Protection Cabinet filed exceptions to the hearing officer's recommended order. The Personnel Board then filed a Final Order altering the recommended order inasmuch as the Board found Secretary Vance did have the authority to fire Veitch.
Veitch then petitioned the Franklin Circuit Court for review of the Personnel Board's Final Order. The Franklin Circuit Court agreed with theHearing Officer and the Personnel Board that Veitch was a non-merit employee. It disagreed with the Personnel Board that the Public Protection Cabinet had the authority to terminate Veitch's employment. It thus reversed and remanded for Veitch to be reinstated, with back wages, to his position as Chief State Steward. The Public Protection Cabinet timely appealed. Having been fully briefed by all parties, including the Kentucky Personnel Board, the case is now ripe for a decision.
Appellate review of an administrative agency's decision is for arbitrariness. Kentucky Bd. of Nursing v. Ward, 890 S.W.2d 641, 642 (Ky. App. 1994) (citing Commonwealth, Transportation Cabinet v. Cornell, 796 S.W.2d 591, 594 (Ky. App. 1990)). Arbitrariness is defined as clear error, and clear error examines whether the decision is supported by substantial evidence. Ward, 890 S.W.2d at 642 (citing Crouch v. Police Merit Board, 773 S.W.2d 461, 464 (Ky. 1988)). Three primary factors should be utilized to determine arbitrariness:
The court should first determine whether the agency acted within the constraints of its statutory powers or whether it exceeded them. Second, the court should examine the agency's procedures to see if a party to be affected by an administrative order was afforded his procedural due process. The individual must have been given an opportunity to be heard. Finally, the reviewing court must determine whether the agency's action is supported by substantial evidence. If any one of these three tests are failed, the reviewing court may find that the agency's action was arbitrary.
Commonwealth Transp. Cabinet Dept. of Vehicle Regulation v. Cornell, 796 S.W.2d 591, 594 (Ky. App. 1990) (citations omitted).
Under this standard, we now turn to the two issues raised by the parties.
Two issues are presented for our review: (1) was Veitch a merit employee; and, (2) did the Cabinet Secretary have authority to terminate Veitch? We address each issue in seriatim.
If you treat an employee as a non-merit employee but say that under a statute he or she should have been a merit employee, is the person a merit employee? No. Veitch wants the best of both worlds - the salary and benefits of a non-merit employee with the protections of a merit employee. He cannot have both, as all adjudicative bodies to review Veitch's claim have properly found. Just as "[a] horse is a horse is a horse," a non-merit employee is a non-merit employee is a non-merit employee. Pacheco v. Safeco Ins. Co. of America, 780 P.2d 116, 127 (Idaho 1989) (Bistline, J., dissenting). The Franklin Circuit Court's order is illustrative:
Veitch argues this analysis is faulty because the statutes do not list Chief State Steward as a non-merit job. Indeed, "[u]nder KRS 18A.115(1), all positions within state government are part of the classified service unless specifically excluded and are subject to personnel laws governing classified service." Commonwealth Educ. & Humanities Cabinet Dept. of Educ. v. Gobert, 979 S.W.2d 922, 926 (Ky. App. 1998). And it is true that KRS 18A.115, which states classified services "shall comprise all positions in the state service now existing or hereafter established, except the following[,]" does not list Chief State Steward as an unclassified job.
However, if we were to accept Veitch's argument, Veitch's appointment to Chief State Steward was void ab initio. See Bowling v. Natural Resources and Environmental Protection Cabinet, 891 S.W.2d 406, 411 (Ky. App. 1994) (). It is undisputed that Veitch was not hired pursuant to KRS 18A.010(1) ("All appointments and promotions to positions in the state classified service shall be made solely on the basis of merit and fitness, to be ascertained by competitive examination . . .") and KRS18A.120(1) ("Except as hereinafter provided, all hiring for the classified service shall be on the basis of competitive examinations and certification by the cabinet in accordance with the provisions of KRS 18A.005 to 18A.200."). A register was not requested by the appointing authority, 101 KAR 2:066 Section 1, and neither was a certification of eligible applications transmitted to the appointing authority, id. at Section 2. Instead,...
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