Gore v. Ky. Pers. Bd.
| Decision Date | 29 July 2022 |
| Docket Number | 2021-CA-1059-MR |
| Court | Court of Appeals of Kentucky |
| Parties | DENISE GORE APPELLANT v. KENTUCKY PERSONNEL BOARD AND KENTUCKY TOURISM, ARTS & HERITAGE CABINET, KENTUCKY DAM VILLAGE STATE RESORT PARK APPELLEES |
NOT TO BE PUBLISHED
BRIEFS FOR APPELLANT:
Denise Gore appeals from the order of the Franklin Circuit Court affirming the final order of the Kentucky Personnel Board ("the Board") approving and adopting the hearing officer's findings of fact, conclusions of law, and recommended order dismissing Gore's appeal of the Kentucky Tourism, Arts & Heritage Cabinet's ("KTAHC") termination of Gore as dining room supervisor at Kentucky Dam Village State Resort Park's ("KDV") Harbor Lights Restaurant. Following a careful review of the record, briefs, and law, we affirm.
Gore was employed with KDV for over 20 years. In 2017, a complaint was filed against her which triggered an investigation, administrative leave, and ultimately her dismissal.[1] Gore's dismissal letter was 14 pages in length and contained detailed information about the results of the investigation supporting KTAHC's decision to dismiss her. The findings include: (1) 381 deficiencies on timecards of employees supervised by Gore during the period January 1 through June 15, 2017; (2) three instances where Gore falsified her own timecard; (3) Gore's failure to protect confidential information, as well as inappropriate sharing of passcodes for the point of sale system; (4) Gore's failure to maintain accurate tip verification reports which made it impossible to quantify tips paid to servers; and (5) a transfer scam which occurred in the KDV dining room under Gore's supervision with an estimate of up to $1,000 being misappropriated during the weekend of July 8-9, 2017. Other instances of inappropriate behavior documented in the letter include: Gore's conspiracy with her subordinate employee (her sister) to conceal the unlawful removal of a coworker's personal property (a cell phone) and providing false statements during the investigation; compelled tip pooling; and a possible conflict of interest, as well as favoritism toward her sister and niece in scheduling them for the most events with 15% built-in gratuities.
Gore appealed her dismissal to the Board, and a trial was held before a hearing officer on May 15 and 16, 2019. The Board granted an extension until August 15, 2019, for the hearing officer to complete his recommended order, though the order was not issued until August 21, 2019. The order recommended that the Board dismiss the appeal because KTAHC met its burden of proof to establish a lack of good behavior by Gore, and its dismissal of her was neither erroneous nor excessive. The letter also contained a notice of exception and appeal rights which clearly stated Gore had 15 days from the date of the letter's mailing to file exceptions.
Gore's exceptions to the recommended order were mailed to the Board on September 7, 2019, after her time to appeal had expired. The Board returned the exceptions as untimely and informed Gore they would not consider same in making their final determination. Gore nevertheless moved the Board to consider the objections, claiming her counsel, his staff, and the post office were to blame. Gore's motion was denied in the Board's final order, which approved and adopted the recommended order and dismissed her appeal.
Gore appealed the Board's final order to the Franklin Circuit Court, and KTAHC moved the court to dismiss the appeal. The circuit court granted the motion, dismissing Gore's appeal and affirming the final order of the Board. This appeal followed.[2]
KRS[3] Chapter 13B governs administrative hearings before state agencies, such as the Board herein. In administrative proceedings, the claimant bears the burden of proving entitlement to a benefit by a preponderance of the evidence and, likewise, carries the risk of non-persuasion. KRS 13B.090(7); Kentucky Ret. Sys. v. West, 413 S.W.3d 578, 581 (Ky. 2013).
When the decision of the fact-finder is in favor of the party with the burden of proof or persuasion, the issue on appeal is whether the agency's decision is supported by substantial evidence, which is defined as evidence of substance and consequence when taken alone or in light of all the evidence that is sufficient to induce conviction in the minds of reasonable people. Where the fact-finder's decision is to deny relief to the party with the burden of proof or persuasion, the issue on appeal is whether the evidence in that party's favor is so compelling that no reasonable person could have failed to be persuaded by it. In its role as a finder of fact, an administrative agency is afforded great latitude in its evaluation of the evidence heard and the credibility of witnesses, including its findings and conclusions of fact. . . . A reviewing court is not free to substitute its judgment for that of an agency on a factual issue unless the agency's decision is arbitrary and capricious.
McManus v. Kentucky Ret. Sys., 124 S.W.3d 454, 458 (Ky. App. 2003) (internal quotation marks and citations omitted).
On appeal, Gore argues the circuit court correctly concluded that the Board acted arbitrarily by not considering her exceptions to the hearing officer's recommended order when it not only considered his tardy recommendation but approved and adopted it. However, it is well-settled that "any late judgment or report is not void because of tardiness." Dubick v. Dubick, 653 S.W.2d 652 655 (Ky. App. 1983).[4] Therefore, we cannot say that the delayed filing of the recommended order alone would justify the Board disregarding it.
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