Drummond v. Todd County Bd. of Educ.

• Decision Date: 09 September 2011
• Docket Number: No. 2009–CA–000356–MR.,2009–CA–000356–MR.
• Parties: Benjamin DRUMMOND, Appellant,v.TODD COUNTY BOARD OF EDUCATION, Appellee.
• Court: Kentucky Court of Appeals

349 S.W.3d 316

272 Ed. Law Rep. 1022

Benjamin DRUMMOND, Appellant,

v.TODD COUNTY BOARD OF EDUCATION, Appellee.

No. 2009–CA–000356–MR.

Court of Appeals of Kentucky.

Sept. 9, 2011.

Dennis Franklin Janes, Bridget S. Brown, Frankfort, KY, John Frith Stewart, Mary Margaret McQuire, Crestwood, KY, for appellant.Michael A. Owsley, Bowling Green, KY, for appellee.Before ACREE, CAPERTON and CLAYTON, Judges.

OPINION

ACREE, Judge:

This case involves the discharge of a tenured teacher employed by the Todd County Board of Education (school board). The discharge followed an administrative ruling that the teacher had engaged in sexual contact with two students, constituting conduct unbecoming a teacher. On appeal, we are asked to consider whether the hearing officer's procedural and evidentiary rulings were flawed and whether the tribunal's factual conclusion was supported by substantial evidence. Following careful review of the law and the record, we affirm.

I. Facts and procedure

Benjamin Drummond began employment as a history teacher at Todd County Central High School (TCCHS) in 1996. He was active in the school's extracurricular activities and had no major disciplinary issues until August 2006.

At that time, school administrators learned of rumors that Drummond had engaged in a sexual relationship with a student, R.G., who was then a senior at TCCHS. Administrators interviewed students they believed to have knowledge of the relationship, including R.G. herself. R.G. initially denied the allegations, but subsequently confirmed them. School officials then reported the matter to the Kentucky State Police, who began an investigation of their own. Eventually, a former TCCHS student, A.S., would come forward to allege that she, too, had engaged in sexual behavior with Drummond while she attended the high school.

Drummond was suspended with pay while law enforcement officials investigated the incident involving R.G. and pursued criminal charges.¹ Following a jury trial, Drummond was acquitted and returned to a teaching position in March 2007, though not at TCCHS. The school board's superintendent, Mike Kenner, subsequently fired Drummond. The determination letter dated July 3, 2007, indicated the basis of the discharge was that, “[Drummond] had inappropriate sexual relationships with at least two students or former students at Todd County Central High School while an employee and during the time these individuals were enrolled as students in the Todd County School.”

Drummond chose to contest his dismissal, and a tribunal convened according to the mandates of Kentucky Revised Statute (KRS) 161.790(4). The hearing officer scheduled the hearing for September 5, 2007, through September 7, 2007. Then, following Drummond's motion for additional time to present evidence, the hearing officer ruled that the presentation of evidence could continue until September 8, 2007, if necessary. The hearing officer also limited each party to eleven hours in which to present their respective cases-in-chief and to conduct cross-examination.

The hearing officer instructed the tribunal members that they were required to decide whether Drummond had engaged in inappropriate sexual relationships with the two TCCHS students, R.G. and A.S., and, if so, whether that constituted conduct unbecoming a teacher.² After receiving evidence, the tribunal returned its decision on September 8, 2007,³ answering both questions in the affirmative, and terminated Drummond's employment. The hearing officer entered a final order on September 18, 2007. On appeal to the circuit court, the hearing officer's final order was affirmed in its entirety. Drummond takes this appeal from the circuit court's order.

II. Issues

Now, as before the circuit court, Drummond raises a host of alleged errors committed at the administrative level. He has presented a daunting assemblage of thirteen arguments ⁴ supported by an appendix containing eighty-five items. As a result, we must do some housekeeping before addressing the substance of the issues. Drummond's issues fall naturally into three categories. They are: (1) challenges to the sufficiency of the evidence; (2) issues regarding the admissibility of evidence; (3) and matters of procedure.

We further note that in some portions of his brief, Drummond has raised issues which are vague, general claims of error. We can address only those issues Drummond has raised with specificity and for which he has directed our attention to the record. Our review of his arguments will be limited accordingly.⁵

Finally, we note that many of Drummond's supposedly distinct arguments are actually repetitions of previous arguments, though couched in different terms. We decline to address the same issue more than once.

III. Analysis

With these guidelines in mind, we will consider Drummond's arguments regarding the sufficiency of the evidence first. Then we will consider arguments relating to the exclusion of certain evidence, breaking those arguments into their separate sub-categories. Finally, we will address Drummond's procedural arguments.

A. Sufficiency of the evidence

Drummond contends the tribunal's decision was not based upon substantial evidence. The Board responds that the residuum rule, combined with the oft-repeated rule that a reviewing court is required to give deference to the fact-finder's determinations of witness credibility, requires that this Court affirm the factual determination if there was any competent evidence before the tribunal. Neither party is entirely correct.

In presiding over an administrative proceeding, the hearing officer is permitted to accept hearsay evidence which is reliable, but which would not be admissible in court. See KRS 13B.090(1). However, when the time comes to make a factual determination, the residuum rule requires the fact-finder to base a decision on only the competent evidence: “When the evidence is all in, it must be sifted and assorted. The competent separated from the incompetent, and out of the testimony there must come some reliable and substantial evidence, as understood by the common-law rules of evidence upon which a verdict must rest.” Cabe v. City of Campbellsville, 385 S.W.2d 51, 54 (Ky.1964) (quoting Valentine v. Weaver, 191 Ky. 37, 228 S.W. 1036, 1038 (1921)). That means we will affirm a finding of fact only if the competent evidence before the tribunal constitutes substantial evidence.

In determining whether the competent evidence is substantial, the usual standards apply. “The test of substantiality of evidence is whether when taken alone or in the light of all the evidence it has sufficient probative value to induce conviction in the minds of reasonable [people].” Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308 (Ky.1972) (citing Blankenship v. Lloyd Blankenship Coal Company, Inc., 463 S.W.2d 62 (Ky.1970)). While the reviewing court may disagree with a factual determination, it may not substitute its judgment for that of the fact-finding body. Kentucky Board of Nursing v. Ward, 890 S.W.2d 641, 642 (Ky.App.1994). Further, “[i]t is within the province of the fact-finder to determine the credibility of witnesses and the weight to be given the evidence.” Uninsured Employers' Fund v. Garland, 805 S.W.2d 116, 118 (Ky.1991). This, indeed, places a high hurdle before Drummond on appellate review of the tribunal's findings of fact, but not nearly so high as the Board would set it.

For the purposes of this analysis, we will presume that certain of Drummond's arguments on appeal are true. More specifically, we will operate as if Drummond is correct that the hearing officer improperly admitted various items of evidence.⁶ If we set that evidence in the “incompetent” category, for purposes of the sorting required by Cabe, supra, and nevertheless find the remaining competent evidence is substantial, then we need not address whether the evidence to which Drummond objects was properly admitted because the matter will be moot. If, on the other hand, we conclude the remaining competent evidence is not sufficient to uphold the factual conclusion of the tribunal, it will be necessary that we analyze each item of evidence purportedly admitted in error.

In the instant case, the conclusions of the tribunal were supported by competent substantial evidence, not the least of which was the testimony of the two students who alleged Drummond had had inappropriate contact with them. R.G. testified that while she was a student, she and Drummond had sexual intercourse in his classroom, in the school's annex building, and at his home. Drummond argues that the believability of much of her testimony was abated by seemingly contradictory evidence revealed during cross-examination and by evidence Drummond presented during his case-in-chief. Perhaps this is so; however, the tribunal was entitled to believe the testimony R.G. presented without equivocation at the hearing.

A.S., too, testified in no uncertain terms that she had performed oral sex on Drummond twice while she was a student and that the two had also flirted and kissed on many occasions. Even in the face of evidence which contradicted portions of A.S.'s testimony, such contradictory evidence was not so strong as to render the school board's evidence less than substantial.

There was other competent evidence which supported the conclusion of the tribunal as well. School administrators testified about R.G.'s demeanor during two interviews; they said she was nervous, shaken, and upset while confessing to the relationship with Drummond. A third student provided testimony which supported the conclusion that R.G. had not recently fabricated her story, but rather, had disclosed the relationship with Drummond several months before it was brought to the attention of school officials. Taken together, this evidence was sufficient to support the conclusion that Drummond had engaged in inappropriate sexual behavior with his students.

Applying the...