GEORGE A. ELLIS, JR. v. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT CIVIL SERVICE COMMISSION
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RENDERED:
OCTOBER 6, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002084-MR
GEORGE A. ELLIS, JR.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
ACTION NO. 97-CI-03838
v.
LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT
CIVIL SERVICE COMMISSION
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
CHIEF JUDGE GUDGEL, JOHNSON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from a judgment upholding a
decision of the Lexington-Fayette Urban County Government Civil
Service Commission terminating the employment of appellant.
Appellant argues that he was not given sufficient notice of the
basis for his termination.
From our review of the record,
appellant was given sufficient notice of enough of the charges
against him to support his termination and, thus, the lack of
notice as to certain of the charges constitutes harmless error.
Appellant’s remaining assignments of error were not preserved for
review.
Accordingly, we affirm.
On July 21, 1997, the Director of the Division of
Building Maintenance and Construction of the Lexington-Fayette
Urban County Government (“LFUCG”) filed charges against
appellant, George Ellis, seeking his dismissal for events which
occurred on July 15 and 16, 1997.
At that time, Ellis was
working with the asbestos crew within the Division of Building
Maintenance and Construction.
There was evidence presented at
his dismissal hearing that on July 15, 1997, Ellis made the
statement that if he was sent to a certain job site with certain
individuals, “I don’t know how long it will be before I seriously
hurt one of them.”
After that statement was made, four of
Ellis’s fellow employees and his direct supervisor, James Waddy,
filed grievances against Ellis for making said threat.
The next
morning, July 16, 1997, a confrontation arose when Ellis arrived
at work and was informed of the grievances, that he was being
reassigned, and that he should report to the heating and air
conditioning supervisor.
A loud argument then ensued between
Ellis and the operations manager, Mike Walford.
According to
Ellis, Walford called him a “damned nigger” during this argument.
Walford denied calling Ellis a “nigger”.
Walford claimed that
when he ordered Ellis to report to his new work assignment, he
refused and demanded to talk with the human resources manager,
Wally Skiba.
According to Walford and Carolyn Smith, in whose
office Ellis went after arguing with Walford, they felt
threatened by Ellis’s tone of voice and his demeanor during this
time.
Eventually, the police were called and escorted Ellis off
the premises.
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A hearing on Ellis’s proposed dismissal was held before
the LFUCG Civil Service Commission (“the Commission”) on
September 24, 1997.
Following the hearing, the Commission voted
in favor of Ellis’s dismissal.
Ellis then appealed to the
Fayette Circuit Court which affirmed the dismissal.
This appeal
by Ellis followed.
Ellis first argues that he was given insufficient
notice of the basis for his dismissal.
The written notice sent
to Ellis by the LFUCG Civil Service Commission provided as
follows:
CHARGES
Comes now the Lexington-Fayette Urban
County Government, Division of Building
Maintenance and Construction and charges
George A. Ellis with misconduct and
inefficiency within the meaning of KRS
67A.280 and Section 21-44 of the Code of
Ordinances, to wit:
COUNT I
That said George A. Ellis committed the
offense of insubordination in that he failed
or refused to follow a direct order of a
supervisor on July 15, 1997.
COUNT II
That said George A. Ellis committed the
offense of deliberate malicious conduct in
that he threatened to harm several employees
in the Division of Building Maintenance and
Construction on July 15, 1997.
COUNT III
That said George A. Ellis’ repeated acts
of misconduct, insubordination, and malicious
behavior interfere with the efficient
operation of the Division of Building
Maintenance and Construction.
COUNT IV
That said George A. Ellis has received
previous discipline in that on July 6, 1993
he was given a written reprimand for leaving
his work station without authorization; on
August 16, 1993 he was given a written
reprimand for leaving his work station
without authorization and insubordination; on
June 15, 1994 he was given a five (5) day
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suspension for insubordination; and, on
May 7, 1996 he was given a written reprimand
for misconduct.
WHEREFORE, the Lexington-Fayette Urban
County Government requests that the Civil
Service Commission dismiss George A. Ellis,
pursuant to the provisions of KRS 67A.280 and
Section 21-44 of the Code of Ordinances.
The opinion and order entered by the Commission
pursuant to the hearing made the following findings:
1. That on July 16, 1997 Mr. Ellis disrupted
the office and refused to go to the job site
as directed.
2. That Mr. Ellis failed or refused to
follow a direct order of a supervisor on
July 15, 1997.
3. That Mr. Ellis threatened to harm several
employees in the Division of Building
Maintenance and Construction on July 15 and
16, 1997.
4. That Mr. Ellis’ repeated acts of
misconduct, insubordination, and malicious
behavior have interfered with the efficient
operation of the Division of Building
Maintenance.
5. That the forgoing constitutes misconduct,
insubordination, and inefficiency, justifying
his dismissal.
Ellis argues that his due process rights were violated
because the notice sent to him did not mention charges stemming
from the events of July 16, 1997, of which evidence was presented
at the hearing and which, from the above findings of the
Commission, clearly served as at least part of the basis of the
Commission’s decision.1
In support of his position, Ellis cites
Wade v. Commonwealth, Dept. of Treasury, Ky. App., 840 S.W.2d 215
(1992), in which the specific notice requirements for dismissal
1
Contrary to LFUCG’s assertion that this issue was not
preserved for review, we note that Ellis argued that the notice
was insufficient in his motion to dismiss before the Commission
and in his reply memorandum in support of his position before the
circuit court.
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of executive branch state employees pursuant to KRS 18A.095 are
set out.
However, Ellis is not an executive branch state
employee; he is an urban-county government employee.
Dismissals
of urban-county government employees are governed by KRS 67A.280.
KRS 67A.280(2) provides in pertinent part:
Any person may prefer charges in writing
against any employee by filing them with the
appointing authority who shall communicate
the charges without delay to the head of the
executive unit in charge of personnel
matters, and to the civil service commission.
The charges must be signed by the person
making them and must set out clearly each
charge. The appointing authority shall,
whenever probable cause appears, prefer
charges against any employee whom he believes
guilty of conduct justifying his removal or
disciplinary action. Upon the filing of
charges, the secretary of the civil service
commission shall notify its members and serve
a copy of the charges upon the accused
employee . . .
KRS 67A.280(3) goes on to provide:
Upon the hearing, the charges shall be
considered traversed and put in issue, and
the trial shall be limited to the issues
presented by the written charges, provided,
however, that the charges may be amended
prior to trial, in which event the notice
procedures hereinabove described shall be
again complied with, and reasonable
opportunity given for the preparation for
trial on the amended charges.
Although the entire record of the Commission was not
placed in the record before us, we do not see that the Commission
ever amended the charges against Ellis.
The question then
becomes, did the notice sent to Ellis “set out clearly each
charge”?
Implicit in a party’s due process right to an
opportunity to be heard is that the party receive sufficient
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notice to direct his attention to the occurrences at issue.
Somsen v. Sanitation Dist. No. 1, 303 Ky. 284, 197 S.W.2d 410
(1946).
In Goss v. Personnel Board, Ky., 456 S.W.2d 819 (1970),
the statute (KRS 18.270(17) — the precursor to KRS 18A.095(8))
contained a general notice requirement, as in the instant case,
mandating that the notice give “the reasons for the discharge”
and allow the party to reply in writing or in person.
The Court
held that the notice must be such that it allows the party to
adequately reply to the charges, which requires dates, places,
and names.
Id. at 821.
Similarly, in Kupper v. Kentucky Board
of Pharmacy, Ky., 666 S.W.2d 729 (1983), it was adjudged that the
notice of administrative charges was not sufficiently specific
where it did not state the nature, time or place of the
accusations, although said error was not properly preserved for
review.
In Estreicher v. Board of Education of Kenton County,
Ky., 950 S.W.2d 839 (1997), the statute mandated that the notice
of demotion contain “[a] specific and complete statement of
grounds upon which the proposed demotion is based, including,
where appropriate, dates, times, names, places, and
circumstances.”
KRS 161.765(2)(b)(1).
The Court held that,
although the notice contained only general statements of the
charges against appellant, notice was sufficient when it alluded
to past correspondence between appellant and appellee which set
forth in detail the grounds for the demotion.
Id. at 842.
Court once again recognized that notice is sufficient if it
The
allows the party to “know the specific nature of the charges
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against them, in order to evaluate intelligently the accusations
and prepare fully for a hearing on the matter.”
Id.
The notice at issue in the present case stated that
Ellis was insubordinate when he refused to follow a direct order
of a supervisor on July 15, 1997 and that he committed an act of
malicious conduct on July 15, 1997 when he threatened to harm
several employees.
The remainder of the notice cited four
specific instances of previous discipline, stating the date, the
punishment, and the nature of each offense.
In reviewing the
record of the hearing on this matter, we see that much evidence
was elicited regarding Ellis’s confrontation with Mike Walford
and his subsequent encounter with Carolyn Smith, which occurred
on July 16, 1997.
In fact, the Commission clearly stated in its
findings that Ellis refused to go to the job site and threatened
to harm several employees on July 16, 1997.
However, there was
no reference to any incident occurring on July 16, 1997 in the
notice received by Ellis.
Ellis argues this rendered the notice
to him inadequate, as he was not prepared to defend against
charges stemming from the events of July 16, 1997.
Ellis also
argues that the notice regarding the events of July 15, 1997 was
not sufficiently specific because there was no reference to the
time or place of his purported conduct and there were no names
mentioned.
From our review of the record, we believe that the
notice was sufficiently specific as to Ellis’s conduct on July
15, 1997.
Although the notice did not contain the names of the
individuals threatened, there was evidence that Ellis was aware
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of the grievances filed by the fellow employees in which they
alleged that Ellis had threatened them on July 15, 1997 at 3:20
p.m. at Connie Griffith Manor.
The grievance forms also refer to
Ellis’s refusal to perform a work assignment with certain
individuals on July 15, 1997.
As to the allegations regarding Ellis’s conduct on July
16, 1997, we believe the notice was inadequate.
The alleged
events of July 15 and July 16, although related, were separate
and distinct.
Ellis’s confrontation on July 16 was with a
different supervisor, and the purported threats of July 16 were
presumably against different individuals.
Yet the notice made no
mention of any conduct occurring on July 16.
We believe Ellis
did not receive sufficient notice to intelligently respond to or
prepare for a hearing on the charges related to the events of
July 16.
The question then becomes, was said error harmless or
reversible error?
CR 61.01.
Upon review of the record, we believe that Ellis’s
conduct on July 15 and the evidence regarding the past discipline
of Ellis were sufficient basis to dismiss Ellis, even without the
evidence regarding his conduct on July 16.
KRS 67A.280(1)
provides that “No employee in the classified service of urbancounty government, . . . shall be dismissed . . . for any reason
except inefficiency, misconduct, insubordination, or violation of
law involving moral turpitude.”
In actions involving the
dismissal of an urban-county government employee, “[t]he trial
court’s review is limited to a determination of whether the
administrative body acted arbitrarily.”
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Brady v. Pettit, Ky.,
586 S.W.2d 29, 33 (1979).
LFUCG presented evidence that Ellis
refused to follow a direct order of his supervisor on July 15 and
that he made a threat against certain of his fellow employees on
July 15.
Further, there was evidence of the four past instances
of insubordination and misconduct for which Ellis had been
disciplined.
From that evidence, we cannot say the Commission
acted arbitrarily in terminating Ellis’s employment.
Ellis next argues that the Commission failed to enforce
equal time limits on both parties during the hearing.
Ellis
maintains that LFUCG was allowed to exceed its two-hour time
limit by 30 minutes, while Ellis stayed within the two-hour
limit.
In reviewing the transcript of the hearing, we do not see
that this issue was preserved, and Ellis has not pointed us to
where in the record the issue was preserved as required by CR
76.12(4)(c)(iv).
At no time did Ellis object to the fact that
LFUCG was exceeding its time limit.
Moreover, we do not see that
Ellis ever asked for more time to present his case.
this issue is precluded from our review.
Accordingly,
See Kaplon v. Chase,
Ky. App., 690 S.W.2d 761 (1985).
Ellis’s next assignment of error is that the Commission
improperly excluded the testimony of Julius Berry, LFUCG’s EEO
Compliance Director.
During the hearing, Ellis sought to
question Berry as a witness, but LFUCG objected on grounds that
Berry had nothing to do with the dismissal of Ellis.
When the
Commission then ordered Berry’s testimony excluded, Ellis’s
counsel assented to the exclusion — “Like I said, I have no
problem in eliminating Julius Berry.
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We’ll let him go home.”
Subsequently, because of certain information which came to light
during the hearing, Ellis renewed his request to call Berry as a
witness.
After LFUCG agreed to Berry being called, the
Chairperson of the Commission ruled that Ellis was entitled to
call Berry and offered Ellis a continuance of a month for that
purpose.
Ellis’s counsel declined the offer, responding “we
really can’t afford to do that at this time.”
The Chairperson
then suggested that Ellis pursue his questioning of other
witnesses.
Ellis’s counsel agreed that he would and then stated,
“If we need to discuss it, we can discuss it after that.”
Thereafter, we do not see that Ellis’s counsel ever raised the
issue again, despite his contention that the Commission denied
Ellis’s request to discuss Berry’s testimony at a later time.
From our review of what transpired during the hearing, Ellis
waived the claim of error when he rejected the offer of a
continuance.
See Riebesehl v. Commonwealth, Ky., 434 S.W.2d 41
(1968).
Ellis’s final argument is that the Commission erred
when it excluded the testimony of two witnesses who signed the
grievances against Ellis, Dennis McHatton and Todd Hedges.
Ellis
claims that McHatton and Hedges would have testified that they
did not actually write the grievances themselves and that they
had signed other such grievances against Ellis in the past.
Ellis maintains that this would have tended to show that they
were part of a longstanding conspiracy against him.
not attempt to elicit their testimony by avowal.
nature of their testimony is pure speculation.
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Ellis did
Thus, the
See Kentucky
Stone Co. v. Gaddie, Ky., 396 S.W.2d 337 (1965).
In any event,
even if McHatton and Hedges would have testified as Ellis
suggests, we do not believe that would have compelled a ruling in
Ellis’s favor.
For the reasons stated above, the judgment of the
Fayette Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James M. Morris
Sharon K. Morris
Jason V. Reed
Lexington, Kentucky
Edward W. Garnder
Theresa L. Holmes
Lexington, Kentucky
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