Thompson v. Huecker
| Decision Date | 09 December 1977 |
| Citation | 559 S.W.2d 488 |
| Parties | James F. THOMPSON, Appellant, v. Gail HUECKER, Individually and as Commissioner of Department of Economic Securities, Cattie Lou Miller, Individually and as Commissioner of the Department of Personnel, Enos Swain, D. J. Carty, Ralph Homan, James Way, and Phillip Taliaferro, as the Personnel Board, all of the Commonwealth of Kentucky, Appellees. |
| Court | Kentucky Court of Appeals |
Arthur L. Brooks, Brooks, Sullivan & Saunders, Lexington, for appellant.
Edward F. Prichard, Jr., Frankfort, Martin Glazer, Asst. Atty. Gen., Frankfort, for appellees.
Before MARTIN, C. J., and PARK and WHITE, JJ.
This proceeding arises out of the termination of the employment of the plaintiff-appellant, James F. Thompson, as Chief Personnel Officer of the Department of Economic Security. Thompson's appeal to the state personnel board was denied. Thompson subsequently instituted an action in the Franklin Circuit Court challenging the order of the state personnel board and seeking, monetary damages from the defendants-appellees, Gail Huecker and Cattie Lou Miller. At the time, Huecker was Commissioner of the Department of Economic Security, and Miller was Commissioner of the Department of Personnel. Thompson appeals from the judgment of the Franklin Circuit Court dismissing his complaint.
Two separate questions are presented by the appeal: (1) whether the circuit court erred in affirming the order of the state personnel board, and (2) whether the circuit court erred in sustaining a summary judgment dismissing Thompson's claim for damages against the two commissioners.
On July 28, 1972, Thompson was the Chief Personnel Officer of the Department of Economic Security. Having been employed by the state for nearly eleven years, Thompson had acquired "status" and was entitled to all of the protections of the "merit system" provided by KRS 18.110 to KRS 18.340.
On July 28, 1972, Governor Ford signed an executive order approving the reorganization of the Department of Economic Security. On the same day, Huecker as Commissioner of the Department of Economic Security submitted a "layoff plan" to Miller as Commissioner of the Department of Personnel. The "layoff plan" reflected that the position of Chief Personnel Officer was being abolished and that Thompson would be "terminated by layoff." Miller approved the layoff plan immediately. On July 28, 1972, Huecker also wrote Thompson a letter informing him of his "termination" from the position of Chief Personnel Officer effective at the close of business July 28, 1972. The letter stated:
The reason for this layoff is that the Department of Economic Security has been reorganized and the functions formerly performed by the position of Chief Personnel Officer have been absorbed, along with other duties, into the position of the Administrator of the Office of Staff Services. This material change in organization renders the position of Chief Personnel Officer in the Department of Economic Security an excess position which must accordingly be abolished.
The letter also informed Thompson of his right to appeal his termination to the personnel board.
Thompson did not receive the letter of termination until July 31, 1972. Thompson immediately sent Huecker a memorandum characterizing the effort to terminate his services as "a blatant political act." Thompson also informed Huecker of his decision not to vacate the office of Chief Personnel Officer. 1
On August 3, 1962, Thompson appealed to the personnel board by a letter to Commissioner Miller. In that letter, Thompson appealed the action terminating his services on the ground that it was "a blatant political maneuver to remove me from the employment of the department." 2
On November 22 and December 8 of 1972, hearings were conducted by the personnel board. On December 18, 1972, following oral arguments by the attorneys, the personnel board rendered its written opinion and order sustaining the layoff of Thompson and denying his appeal. The personnel board also recommended that "a real effort" be made by Commissioner Huecker and others to find proper employment for Thompson.
On December 27, 1972, Miller placed Thompson on the reemployment list maintained by the Department of Personnel in accordance with the provisions of KRS 18.110(15) and KRS 18.210 and the regulations thereunder. On December 27, 1972, Thompson made a formal written request to the Department of Personnel seeking reemployment by the state. On January 8, 1973, Thompson filed suit in the Franklin Circuit Court seeking to overturn the order of the personnel board and to recover damages from Huecker and Miller. Thompson was subsequently employed by the Kentucky Commission on Aging on March 13, 1973. His starting salary was less than he had been receiving as Chief Personnel Officer for the Department of Economic Security.
Under KRS 18.210(17), merit-system employees may be discharged "only for cause." KRS 18.270 provides that any employee who was dismissed "for any political, religious, or ethnic reason" shall be reinstated Under this construction of the statute, the provisions with reference to a finding of political, religious or ethnic reasons for a discharge, and to "all other cases," apply only where the board first had found the existence of a cause that would be a legal ground for discharge; the board may find that the discharge actually was for political, religious or ethnic reasons rather than for the technical cause found to exist; or the board may find that there are mitigating circumstances such as to warrant a recommendation for reinstatement even though legal cause for discharge exists.
with back pay. These two statutes were harmonized by the court in King v. Sermonis, Ky., 481 S.W.2d 652 (1972), the court stating:
Id. 481 S.W.2d at 655. Commissioner Huecker had the burden before the personnel board of proving that the reorganization plan resulting in Thompson's dismissal was valid. Thompson had the burden of establishing that his discharge was politically motivated. Goss v. Personnel Board, Ky., 456 S.W.2d 824, 827 (1970). The findings of fact of the personnel board will be examined in light of principles laid down in the King and Goss cases.
In its order of December 18, 1972, the personnel board made the following findings of fact:
1. Appellant, James F. Thompson, was personally and politically unacceptable to the present Administration.
2. Prior to this reorganization a great many of Thompson's duties were removed from him and reallocated.
3. The reorganization itself, however, was effected pursuant to the recommendations of a professional consulting firm, and the testimony of Mr. Patterson, who admitted that he "quarterbacked" the plan, established that he felt that the Department could function more efficiently if the position of Director of Personnel were abolished and the function absorbed into the Office of Staff Services.
4. Appellant was laid off as result of the recommendations emanating from this study and there was insufficient proof upon which to base a finding that the reorganization plan was designed or used specifically for getting rid of appellant.
5. There was nevertheless, little effort made to relocate Mr. Thompson in State government.
Thompson asserts that these findings of fact are erroneous because his layoff, in fact, was politically motivated.
There was substantial evidence to support the board's findings of fact, and they will not be disturbed by this court on appeal. Wagner v. Dept of Education, Ky., 549 S.W.2d 300 (1977); Kentucky State Racing Commission v. Fuller, Ky., 481 S.W.2d 298 (1972). The reorganization plan was prepared by Jerry Lee Paterson, a management and computer systems consultant from Pennsylvania. Patterson had previously done similar consulting work for the State of Oklahoma and the State of Mississippi. Under the reorganization plan, the primary responsibilities of the Chief Personnel Officer were absorbed into the Office of Staff Services. However, the Deputy Commissioner for the Office of Staff Services would have other significant responsibilities not previously exercised by Thompson as Chief Personnel Officer. The personnel board was not compelled to find that the reorganization plan was implemented for the purpose of getting rid of Thompson.
We hold that there was substantial evidence to support the findings of fact of the personnel board.
Based upon its findings of fact, the personnel board reached the following conclusions of law:
The layoff of appellant was in compliance with Chapter 12 of KRS and this Board's rules pertaining to such actions providing for the abolishing of positions in a formal reorganization program, although it does illustrate somewhat of a Thompson asserts that the board's conclusions of law are erroneous in light of the board's finding that Thompson was personally and politically unacceptable to the current administration. KRS 18.270 contains a flat prohibition against dismissal of a merit-system employee for any political reason. Firing a merit-system employee for political reasons is prohibited even though a technical cause for dismissal might also exist. King v. Sermonis, supra. We also note that the dismissal of a government employee in a non-policy making position solely for partisan political reasons is unconstitutional under the 1st and 14th Amendments to the United States Constitution. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). The fact that Thompson was "politically unacceptable" does not place him in a better position with respect to the reorganization plan than an employee who was politically neutral or acceptable. Thompson had the burden of proving that politics was a motivating factor in his dismissal under the reorganization plan. Even if Thompson sustained that burden of proof, Huecker and Miller were entitled...
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