Hardin v. Jefferson Cnty. Bd. of Educ., 2016-CA-001331-MR

• Decision Date: 10 August 2018
• Docket Number: NO. 2016-CA-001331-MR,2016-CA-001331-MR
• Citation: 558 S.W.3d 1
• Parties: Marc HARDIN, Appellant v. The JEFFERSON COUNTY BOARD OF EDUCATION d/b/a Jefferson County Public Schools; Dr. Donna M. Hargens, Superintendent; Dr. Michael Raisor, Chief Operations Officer; Diane L. Porter, Chair, District 1; Debbie Wesslund, District 3; David A. Jones, Jr., District 2; Chuck Haddaway, District 4; Linda Duncan, District 5; Carol Ann Haddad, District 6 and Chris Brady, District 7, Appellees
• Court: Kentucky Court of Appeals

558 S.W.3d 1

Marc HARDIN, Appellant

v.The JEFFERSON COUNTY BOARD OF EDUCATION d/b/a Jefferson County Public Schools; Dr. Donna M. Hargens, Superintendent; Dr. Michael Raisor, Chief Operations Officer; Diane L. Porter, Chair, District 1; Debbie Wesslund, District 3; David A. Jones, Jr., District 2; Chuck Haddaway, District 4; Linda Duncan, District 5; Carol Ann Haddad, District 6 and Chris Brady, District 7, Appellees

NO. 2016-CA-001331-MR

Court of Appeals of Kentucky.

AUGUST 10, 2018; 10:00 A.M.

BRIEFS FOR APPELLANT: Peter J. Jannace, Teddy B. Gordon, Louisville, Kentucky.

ORAL ARGUMENT FOR APPELLANT: Peter J. Jannace, Louisville, Kentucky.

BRIEF FOR APPELLEES: C. Tyson Gorman, Amanda Warford Edge, Louisville, Kentucky.

ORAL ARGUMENT FOR APPELLEE: C. Tyson Gorman, Louisville, Kentucky.

BEFORE: ACREE, DIXON, AND JONES, JUDGES.

OPINION

ACREE, JUDGE:

The issue before us is whether the Jefferson Circuit Court erroneously dismissed Appellant Marc Hardin’s complaint under Kentucky Rule of Civil Procedure (CR) 12.02(f) for failing to state a claim upon which relief may be granted. We find that it did. Accordingly, we reverse and remand for additional proceedings.

FACTS AND PROCEDURE

When reviewing appeals of CR 12.02(f) dismissals, we take as true the allegations contained in the complaint. Accordingly, we narrate the contents of Hardin’s complaint as if undisputed fact.

Hardin was an administrator employed at Bullitt East High School in the Bullitt County Public School System for a total of three years, including the 2009-2010, the 2010-2011, and the 2011-2012 school years. In 2012, Appellee, the Jefferson County Board of Education d/b/a Jefferson County Public Schools (JCPS), offered Hardin an administrator position (assistant principal) at Middletown Elementary School. Hardin accepted. He served in that position for two years, including the 2012-2013 and the 2013-2014 school years. In total, Hardin has completed five years of administrative service in Kentucky schools.

On April 11, 2014, Patty Salyer, then-principal at Middletown Elementary, issued Hardin an unfavorable evaluation for the 2013-2014 school year, and recommended that Hardin be demoted from assistant principal to teacher. Hardin objected by filing an employee grievance. Salyer denied Hardin’s grievance. Hardin then filed multiple grievances with various JCPS officials. All were denied.

On May 1, 2014, JCPS Superintendent, Appellee Donna Hargens, advised Hardin by letter that he would "be demoted from the position of Elementary School Assistant Principal to the position of Teacher." Hardin notified the superintendent of his intention to contest the demotion. Despite notice of the demotion, no hearing conforming to the requirements of KRS 1

161.765 was held. By letter dated June 13, 2014, Superintendent Hargens notified Hardin that JCPS would uphold the demotion decision and the demotion was effective July 1, 2014.

Hardin filed suit against JCPS, Superintendent Hargens, JCPS employee Michael Raisor, and individual board members. In his amended petition, he claimed Appellees: (1) violated Kentucky law by demoting him without complying with KRS 161.765 ; (2) violated statutory and regulatory requirements governing the evaluation of certified educational personnel, including administrators; and (3) discriminated against him because of his age.

Contemporaneously with filing suit, Hardin appealed his negative 2013-2014 performance evaluation with the Kentucky Board of Education’s State Evaluation Appeals Panel (SEAP). SEAP found some merit in Hardin’s appeal; JCPS had not created a Local Evaluation Appeals Panel (LEAP) as required by KRS 156.557(7) and the SEAP ordered JCPS to create one to consider Hardin’s performance evaluation. Hardin moved the circuit court to stay this lawsuit pending LEAP’s decision. The circuit court denied Hardin’s motion.

Appellees then filed a CR 12.02(f) motion with the circuit court to dismiss Hardin’s complaint for failure to state a claim. They argued Hardin was not entitled to the procedural protections governing administrative demotions found in KRS 161.765 because Hardin had not completed three years of administrative service within the district overseen by JCPS. By order entered May 27, 2015, the circuit court granted Appellees' motion to dismiss. Notwithstanding other counts, the circuit court held that the sole issue was "[w]hether Hardin is entitled to the protections of KRS 161.765." Accepting Appellees' arguments, the circuit court reasoned as follows:

KRS 161.765(2) provides procedural safeguards to a school administrator who has completed three years of service in the school district. There is no dispute that Hardin was only employed by JCPS for a period of two years prior to his demotion. Therefore, Hardin is not entitled to the protections of KRS 161.765(2). Hardin urges the Court to ignore the precedent of Hooks v. Smith , 781 S.W.2d [522] (Ky. [App.] 1989) and the [Opinion of the Attorney General] OAG 77-157, an Attorney General opinion directly aligned with [the] issue herein. Hardin argues for the creation of a property interest and for his service of three years to the Bullitt County Public Schools to be considered for the purposes of KRS 161.765(2). The Court finds his arguments unpersuasive.

(R. 179) (emphasis added).

Hardin filed a CR 59.05 motion to vacate or set aside the dismissal, arguing, inter alia , that the circuit court failed to address or consider the other causes of action contained in Hardin’s amended complaint. The circuit court denied Hardin’s motion. This appeal followed.

STANDARD OF REVIEW

We review dismissals under CR 12.02(f)de novo. Morgan & Pottinger, Attorneys, P.S.C. v. Botts , 348 S.W.3d 599, 601 (Ky. 2011). CR 12.02(f) is designed to test the sufficiency of a complaint. Pike v. George , 434 S.W.2d 626, 627 (Ky. 1968). It is proper to grant a CR 12.02(f) dismissal motion if:

it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim.... [T]he question is purely a matter of law. Stated another way, the court must ask if the facts alleged in the complaint can be proved, would the plaintiff be entitled to relief?

James v. Wilson , 95 S.W.3d 875, 883-84 (Ky. App. 2002) (internal quotation marks and citation omitted). For purposes of a CR 12.02(f) motion, this Court, like the circuit court, must accept as true the plaintiff’s factual allegations and draw all reasonable inferences in the plaintiff’s favor. Pike , 434 S.W.2d at 627.

ANALYSIS

Hardin argues KRS 161.765 affords him a hearing and the circuit court misconstrued the statute in finding otherwise. He asserts OAG 77-157 is contrary to the law, and the circuit court’s reliance on that attorney general’s opinion and Hooks v. Smith , 781 S.W.2d 522 (Ky. App. 1989) is misplaced. Hardin contends it was error for the circuit court to dismiss his complaint in toto without addressing his remaining causes of action. We agree.

We start with the statute at issue: KRS 161.765. " KRS 161.765(2) is one of the most strongly worded statutes enacted by the legislature[.]" Harlan County Bd. of Ed. v. Stagnolia , 555 S.W.2d 828, 831 (Ky. App. 1977). It reads, pertinent to this appeal:

(1) A superintendent may demote an administrator who has not completed three (3) years of administrative service, not including leave granted under KRS 161.770, by complying with the requirements of KRS 161.760.

(2) An administrator who has completed three years of administrative service, not including leave granted under KRS 161.770, cannot be demoted unless the following procedures have been complied with :

(a) The superintendent shall give written notice of the demotion to the board of education and to the administrator. If the administrator wishes to contest the demotion, he shall, within ten (10) days of receipt of the notice, file a written statement of his intent to contest with the superintendent. If the administrator does not make timely filing of his statement of intent to contest, the action shall be final.

(b) Upon receipt of the notice of intent to contest the demotion, a written statement of grounds for demotion, signed by the superintendent, shall be served on the administrator. The statement shall contain:

1. A specific and complete statement of grounds upon which the proposed demotion is based, including, where appropriate, dates, times, names, places, and circumstances;

2. The date, time, and place for a hearing, the date to be not less than twenty (20) nor more than thirty (30) days from the date of service of the statement of grounds for demotion upon the administrator.

KRS 161.765(1) - (2) (emphasis added). The statute goes on to describe the hearing procedures that must be followed to demote an administrator with three years' experience, the timeframe within which the Board must issue its decision, and the appeals process. KRS 161.765(2)(d)-(f).

Hardin argues he is entitled to the procedural protections of KRS 161.765(2) before JCPS may demote him. The circuit court believed otherwise. Interpreting the statute, the circuit court opined that an administrator must have completed three years of administrative service in the same school district before he or she could claim the statute’s protections. Hardin, the circuit court reasoned, was not entitled to the statute’s benefits because he had only completed two years of administrative service with JCPS. We find the circuit court’s interpretation of KRS 161.765 seriously flawed.

The cardinal rule in construing a statute is "to give effect to the intent of the General Assembly." Burke v. Commonwealth , 506 S.W.3d 307, 317 (Ky. 2016). "Discerning legislative intent requires a focus on the words chosen by the legislature." Allstate Insurance Company v. Smith , 487 S.W.3d 857, 861 (Ky. 2016). Accordingly, the first step when interpreting a statute is to apply and give effect to the plain and ordinary meaning of the statute’s words. Kentucky Occupational...