Wagner v. Department of Ed., State Personnel Bd.

• Decision Date: 01 April 1977
• Parties: Viola S. WAGNER, Appellant, v. DEPARTMENT OF EDUCATION, STATE PERSONNEL BOARD, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 300

549 S.W.2d 300

Viola S. WAGNER, Appellant, v. DEPARTMENT OF EDUCATION, STATE PERSONNEL BOARD, Appellee.

Supreme Court of Kentucky.

April 1, 1977.

Robert M. Braden, Corbin, for appellant.

Robert F. Stephens, Atty. Gen., Carl T. Miller, Asst. Atty. Gen., Frankfort, for appellee.

STERNBERG, Justice.

Appellant was a vocational education teacher at the Pineville School of Practical Nursing. Her employment was terminated, not because she was deficient in her work as a teacher but because of friction engendered by conflicts between appellant and her immediate superior, who was the coordinator of the school. Appellant was then discharged by the Superintendent of Public Instruction. She proceeded to a hearing before the State Personnel Board (KRS 18.270), which approved her termination. From thence she appealed to the Franklin Circuit Court (KRS 18.272), where the termination was again sustained. Hence, this appeal.

Appellant contends that the procedure followed by the State Department of Education in effecting her termination violated the Fifth and Fourteenth Amendments to the Constitution of the United States of America (due process).

Viola S. Wagner was employed in what the State Merit System identifies as a "classified position." KRS 18.110(5). KRS 18.210(16) provides that a person in such position may be discharged or reduced in rank after being presented with reasons in writing for the discharge or reduction. The responsibility for carrying out the program of vocational education and rehabilitation (KRS, Chap. 163) is vested in the State Board of Education. KRS 163.030. Although the Superintendent of Public Instruction is given general supervision of the personnel, the dismissal of appellant "shall be with the approval of the State Board of Education." KRS 163.050. The appellant does not challenge the constitutionality of the statute providing for her discharge, rather her challenge is directed at the procedure followed in bringing about the termination of her employment.

Appellant is entitled to a due process hearing and anything less than that is insufficient. American Beauty Homes Corp. v. Louisville, etc., Ky.,379 S.W.2d 450 (1964); City of Louisville v. McDonald, Ky., 470 S.W.2d 173 (1971).

There were many conferences between representatives of the State Department of Education and appellant and much correspondence, discussions and informal hearings in which an effort was made to amicably dispose of the conflict that had arisen between appellant and the school's coordinator. By letters dated April 22, 1974, and May 13, 1974, appellant was advised in writing of the charges made against her. She had an evidentiary-type hearing before the State Personnel Board on August 7, 1974, at which she and her attorney were present. Eleven persons testified, all of whom, except three, were cross-examined by counsel for appellant. Appellant was afforded the opportunity to testify, but did not. The testimony was stenographically reported and a certified copy of the transcript is filed in these proceedings. Appellant was duly notified of the findings and decision of the State Personnel Board, and within thirty days she filed her petition and appeal with the circuit court. Due process does not mean that at every step of the way there must have been a due process hearing. A due process hearing means that at some time in the course of the administrative proceedings there must have been a due process hearing. The record clearly reflects that appellant was afforded a due process hearing before the State Personnel Board.

By letter of April 22, 1974, the Superintendent of Public Instruction notified appellant that her employment would be terminated as of May 10, 1974. The superintendent is authorized to hire and fire, but such action must have the approval of the State Board of Education. KRS 163.050(1). This statute does not provide that the hiring or firing must be with the prior or subsequent approval of the Board. Appellant charges that her discharge was not effective until approved by the Board. In the event a dismissal can legally only be effected by the subsequent approval of the State Board of Education, as contended by appellant, then any attempt at firing by the superintendent would in fact be ineffective inasmuch as it must await a meeting of the State Board of Education for its...