Sajko v. JEFFERSON COUNTY BD. OF EDUC.

• Decision Date: 17 June 2010
• Docket Number: No. 2009-SC-000021-DG.,2009-SC-000021-DG.
• Citation: 314 S.W.3d 290
• Parties: Cara SAJKO, Appellant, v. JEFFERSON COUNTY BOARD OF EDUCATION; Jefferson County Schools; and Stephen Daeschner, Superintendent, Appellees.
• Court: Supreme Court of Kentucky

314 S.W.3d 290

Cara SAJKO, Appellant, v. JEFFERSON COUNTY BOARD OF EDUCATION; Jefferson County Schools; and Stephen Daeschner, Superintendent, Appellees.

No. 2009-SC-000021-DG.

Supreme Court of Kentucky.

June 17, 2010.

Jeffrey Scott Walther, William Scott Hunt, Walther, Roark & Gay, PLC, Lexington, KY, Counsel for Appellant.

Byron Edward Leet, Lisa Catherine Dejaco, Sara Christine Veeneman, Wyatt, Tarrant & Combs, LLP, Louisville, KY, Counsel for Appellees.

Opinion of the Court by Justice NOBLE.

This case presents a question of interpretation of a notice provision in KRS 161.790(3), which governs dismissal proceedings against public school teachers. The provision requires a teacher wishing to challenge her dismissal to "notify" and "give notice" to two school officials of her intention to do so within ten days of receiving the required letter notifying her of the dismissal. If notice is timely, then the teacher gets an administrative hearing. Otherwise, the dismissal is effective by operation of KRS 161.790(3) on the tenth day. The specific question before us is whether the timing statute is satisfied by the mailing, rather than receipt, of the teacher's notice within the ten days.

This Court holds that the statute requires receipt. Therefore, the Court of Appeals is affirmed in part and reversed in part and this matter is remanded to the administrative tribunal for further findings of fact as to the date of Appellant's receipt of her dismissal letter.

I. Background

A. Statutory Framework

Before getting into the facts of this case, a short description of the dismissal process will prove useful as a framing device. The termination process is laid out in KRS 161.790. Subsection (1) of the statute states that a teacher's contract shall remain in effect except for good cause, which includes insubordination and conduct unbecoming a teacher, among other things. When a superintendent decides to dismiss a teacher for cause, he must detail in writing the charge against the teacher supporting the termination. KRS 161.790(3). The same subsection then includes the following language, which is the crux of this case: "The teacher may within ten (10) days after receiving the charge notify the commissioner of education and the superintendent of his intention to answer the charge, and upon failure of the teacher to give notice within ten (10) days, the dismissal shall be final." KRS 161.790(3).

"Upon receiving the teacher's notice of his intention to answer the charge, the commissioner of education shall appoint a three (3) member tribunal" out of a pool of pre-qualified and trained members to hear the matter. KRS 161.790(4). The hearing on the matter "shall begin no later than forty-five (45) days after the teacher files the notice of intent to answer the charge." Id. (emphasis added). The tribunal is the trier of fact in the case. KRS 161.790(6). It operates by majority vote and must render its decision no later than five days after the hearing. KRS 161.790(7). In addition to the three-person tribunal, the commissioner also appoints a hearing officer, who handles dispositive prehearing motions, KRS 161.790(5), and who shall preside at the hearing to rule on procedural matters, KRS 161.790(6). Basically, the hearing officer is an attorney who acts as the judge in the matter and the tribunal serves as the jury.¹

B. Factual and Procedural Background

This case arises from a hearing under this statutory scheme in which the Appellant, Cara Sajko, challenged the termination of her employment as a science teacher at Male Traditional High School in Jefferson County. The superintendent of the Jefferson County Schools had sought to terminate Appellant's employment because of numerous alleged incidents of insubordination and conduct unbecoming a teacher that had led to multiple written reprimands and warnings and two suspensions. The superintendent informed Appellant of his intention to terminate her employment by a letter dated March 28, 2005, which detailed the history of alleged incidents.

The letter was hand-delivered to Appellant's home. According to the person who delivered the letter, Appellant received it the same day, March 28. According to Appellant's collective bargaining representative, Appellant admitted that she received the letter on March 28. Appellant, however, has denied that she received the letter that day.

Appellant employed an attorney on April 6. Her counsel claimed that he tried to contact the general counsel for the Jefferson County Schools that day and the next, but the general counsel was out of the office. After business hours on April 7, Appellant's counsel faxed to the general counsel's office a copy of a letter giving notice under KRS 161.790(3) of Appellant's intention to answer the charges against her. Copies of this letter were also mailed to the Schools' counsel and the Commissioner of Education that same day, but they were not received until April 8. It is the letter to the commissioner that is at issue in this case.

Prior to the hearing on the matter, the Schools moved to dismiss on the ground that Appellant's notice of her intention to answer the charges was untimely because she did not "within ten (10) days after receiving the charge notify the commissioner of education and the superintendent of her intention to answer the charge," KRS 161.790(3), and that as a result the dismissal became final by operation of law, since "upon failure of the teacher to give notice within ten (10) days, the dismissal shall be final," id.

The hearing officer declined to decide whether the notice was received by the commissioner within ten days, in part by not making a factual finding as to when the Appellant received the letter. He did, however, note that affidavits from the person who delivered the letter and Appellant's own collective bargaining representative indicated that Appellant received the letter on March 28. He also noted that Appellant denied these claims. He then stated, "If recognition of this day March 28 results in a ruling that petitioner gave her notice one day late, then a preliminary evidentiary hearing would need to be held regarding Petitioner's denial of the affidavit assertions."

The hearing officer went on to deny the motion. He held that KRS 161.790(3) was ambiguous as to whether the notice it required had to be received by the superintendent and commissioner within ten days or simply put in the mail. After examining various policies apparent from the statute, he decided that under the statute, "teachers should be permitted to mail . . . their protest of a superintendent's disciplinary action on the tenth day after receiving the charges." Because there was no question that the notice was at least mailed within ten days, the officer held it was timely filed and allowed the matter to proceed to a hearing before the tribunal.

The hearing lasted eight days, during which thirty witnesses, including the Appellant, testified. The tribunal concluded that the Appellant was not guilty of conduct unbecoming a teacher but was guilty of insubordination. The tribunal also found that the Appellant used inappropriate teaching methods, including berating and demeaning her students, ignoring parents' concerns, and failing a large number of students. Based on these findings, the tribunal concluded that the superintendent's decision to terminate the Appellant's employment was appropriate and affirmed the decision, in effect, reaching the same result as if she had not timely filed her notice but with the added right of judicial review of the decision on the merits.

Both sides sought review by the Jefferson Circuit Court, which upheld the tribunal's decision in all respects. As to the issue currently before this Court, the circuit court found that the superintendent's letter was delivered on March 28 and that the notice in response was due April 7, but that there was "no basis to reverse the tribunal's determination" and that the "tribunal was within its statutory authority to accept and hear Sajko's appeal in the manner it stated."

The Court of Appeals affirmed and upheld the dismissal also, albeit for different reasons than the circuit court. Rather than addressing the merits of Appellant's claims, the Court of Appeals addressed only whether the notice of Appellant's intention to answer the charges against her was timely filed. The court concluded that the superintendent's letter had been hand-delivered to the Appellant on March 28. The court also held that KRS 161.790(3) required that the notice be received within the ten-day period. Because the notice was not received by the commissioner until the eleventh day, the court concluded that the notice was untimely and the tribunal therefore had no jurisdiction to hear the matter and the dismissal would therefore stand by operation of law.

This Court granted discretionary review to decide whether the tribunal erred in holding that KRS 161.790(3) does not require receipt of the notice within ten days of the teacher's receipt of the superintendent's letter of dismissal.

II. Analysis

Appellant's argument is premised on the claim that the statute is ambiguous as to whether mailing or receipt is necessary to invoke the administrative tribunal's jurisdiction. This claim was in fact the predicate for the hearing officer's decision. However, though the case law in Kentucky addressing this issue is sparse and not directly on point, there is a clear majority rule for interpreting notice language like that in this statute. In light of this rule, this Court cannot conclude that the statute is ambiguous. A review of Kentucky's case law and the law in other jurisdictions establishes that the terms "give notice" and "notify" have a commonly understood meaning and therefore are not ambiguous.²

The parties have cited only one case from Kentucky's courts, Energy Regulatory Commission v. Kentucky Power Co., 605 S.W.2d 46 (Ky.App.1980), interpreting...