PIKE COUNTY FISCAL COURT v. GLEN GIBSON
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RENDERED:
OCTOBER 27, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000813-MR
PIKE COUNTY FISCAL COURT
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE STEVEN D. COMBS, JUDGE
ACTION NO. 99-CI-00678
v.
APPELLEE
GLEN GIBSON
OPINION
VACATING
** ** ** ** **
BEFORE:
GUIDUGLI AND TAYLOR, JUDGES; EMBERTON,1 SENIOR JUDGE.
EMBERTON, SENIOR JUDGE:
This is a case for wrongful discharge
from employment filed by Glen Gibson, a Pike County road
foreman, who alleges that he was terminated as result of the
exercise of his rights under the Constitution of Kentucky.
The
circuit court agreed and ordered Glen reinstated with full
retirement benefits back to the date of his discharge.
We hold
that under the facts there is no protection afforded Glen by the
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
Kentucky Constitution and, we must therefore, vacate the
judgment.
At the time of his discharge, Glen had worked for the
Pike County Road Department for over 20 years.
For the first 10
years he was a right-of-way agent, and the last 10½ years he was
a county road foreman for District I.
His duties as foreman
required that he oversee various projects and perform certain
administrative tasks.
He was not required to operate heavy
equipment and was not trained in that capacity.
Glen is married to Karen Glen who in 1997 was a Pike
County Fiscal Court member.
There was, according to Karen’s and
Glen’s testimony, animosity between Karen and the County
Judge/Executive, Donna Damron.2
In March 1997, the Pike County
Fiscal Court invoked a policy requiring employees of the Solid
Waste and Road Department who occupied specific positions to
obtain a Commercial Driver’s License by September 1, 1997.
Glen’s position as foreman was one of those specified.
The
policy further provided, however, that “[f]or good cause shown,
the judge/executive may grant a waiver of this requirement, but
only if the employee does not operate equipment on the job which
requires a CDL under federal law.”
On March 5, 1997, employees
were notified of the policy and informed that, if needed, the
2
Karen was elected to the position of County Judge/Executive in 1998 and
took office in January 1999.
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county would provide vehicles in which they could take the test.
The notice also informed them of the possible waiver.
Despite having knowledge of its requirements, Glen did
nothing to comply with the policy and did not apply for a waiver
during the six months grace period provided.
As a result, on
September 2, 1997, he was notified that at the fiscal court
meeting on September 15, 1997, the county judge would recommend
Glen’s employment be terminated for failure to comply with the
policy.
Glen requested that he be reinstated, and provided the
necessary training to operate the equipment.
would then attempt to obtain a CDL.
He assured that he
After consideration of
Glen’s request, the fiscal court members voted to terminate
Glen.
Glen’s wife abstained.
Glen filed this action on May 17, 1999, against the
Pike County Fiscal Court alleging that his discharge was in
retaliation for his association with his wife, as well as his
effort to unionize county employees and his expression of
constitutionally protected speech.
He also contended that the
action of the fiscal court was arbitrary in violation of Section
2 of the Constitution of Kentucky.
He later amended his
complaint to state that the CDL requirement itself was arbitrary
and capricious.
Glen again amended his complaint to include
Judge Damron and the fiscal court members, excluding his wife,
in their official and individual capacities.
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The fiscal court, Damron and the fiscal court members
settled all claims for monetary relief sought by Glen.
The only
issue remaining was whether he was entitled to reinstatement.
Despite the county’s contention that the settlement and release
resolved all monetary damages claims, including retirement
benefits, the circuit court awarded such benefits and
reinstatement of Glen to his former position or a better
position.
Glen did not attempt to bring his action pursuant to
42 U.S.C. § 1983, nor could he have since the statute of
limitations had expired.3
Thus, his action, if it can be
sustained at all, depends on this state’s public policy
exception to the terminable at-will doctrine.4
It is Glen’s position that the county judge and the
fiscal court knew he had no training in the operation of the
equipment so that obtaining a CDL would be impossible, causing
him to lose his employment.
The enactment of the policy, he
maintains, was part of a scheme to oust him from his position in
retaliation for his political association with his wife, and for
his previous support of a union.
In response, the fiscal court
contends that the policy was enacted for the protection of the
3
Dennis v. Fiscal Court of Bullitt County, 784 S.W.2d 608 (Ky.App. 1990).
4
The statute of limitations for a wrongful discharge action is five years.
Bednarek v. United Food and Commercial Workers Int’l. 780 S.W.2d 630 (Ky.App.
1989).
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safety of the citizens of Pike County by requiring all operators
of county equipment to be qualified and was unrelated to any
political battle between Glen, his wife and the county judge.
The fiscal court points out that all the employees subject to
the policy complied with its provisions, or attempted to comply,
with the exception of one who was also terminated from his
position.
Glen was not a merit employee nor otherwise explicitly
contractually employed by the county, but he cites a section of
the Pike County Administrative Code that prohibits dismissal of
employees because of their political opinions or affiliations.
Although not artfully stated, it seems that Glen’s reliance on
that section is an attempt to argue that there is some sort of
implied contractual arrangement with the county.
Glen was an
administrator, who under another section of that same code,
could be dismissed with or without cause by the fiscal court.
We can find no basis for holding that the Administrative Code
gives rise to a cause of action for Glen’s alleged wrongful
discharge.
He was a terminable at-will employee.
The lead case in Kentucky relating to wrongful
discharge is Firestone Textile Co. Div. v. Meadows5 where the
court retreated somewhat from the harsh consequences of the
terminable at-will doctrine.
5
The doctrine, once considered an
666 S.W.2d 730 (Ky. 1983).
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absolute rule, provides that an employer may discharge an atwill employee for no cause, or even for a cause that some might
view as morally indefensible.6
The court recognized that there
are limited situations where the public policy of the
Commonwealth is undermined if the terminable at-will doctrine is
blindly enforced.
In that case, the court found implicit in the
Workers’ Compensation Act a right to freely assert a claim
without fear of retaliatory discharge.7
It was not long before the Supreme Court had the
opportunity to clarify its holding in Firestone and limit its
scope.
In Grzyb v. Evans,8 the court held that there are only
two situations where discharging an at-will employee is so
contrary to public policy as to be actionable.
First, if the
alleged reason was the failure or refusal of the employee to
violate a law in the course of employment.
The other is, as in
Firestone, where the discharge is the result of the employee’s
exercise of a right conferred by a well-established legislative
enactment.
“The decision of whether the public policy asserted
meets these criteria is a question of law for the court to
decide, not a question of fact.”9
6
Id. at 731 (citations omitted).
7
Id. at 732.
8
700 S.W.2d 399 (Ky. 1985).
9
Id. at 401.
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In Grzyb, the court heard and rejected the claim that
the First Amendment to the United States Constitution and
Kentucky Constitution Section I provide a cause of action
against private employers for wrongful discharge.
In that case,
the employer was a private hospital that allegedly discharged
the plaintiff because of his fraternization with a female
employee.
The constitutional protection of freedom of
association, the court held, does not, in itself, provide a
cause of action against employers for wrongful discharge.10
The First Amendment guarantee of
freedom of association only proscribes
governmental transgressions. U.S. Const.,
Amend. I. The First Amendment provides that
“Congress shall make no law,” not that
“employers shall make no work rule”
respecting the freedom of association. U.S.
Const. Amendment I. Similarly, the
protections afforded Kentucky citizens under
Kentucky Constitution Section I are against
transgressions of the government and
lawmaking bodies. Thus, although the Court
of Appeals made reference to Evans’
‘constitutionally protected rights of
personal liberty,’ the constitutional
protection of freedom of association does
not limit the employer’s right to discharge
an employee.11
Although Grzyb involved a private employer, following
its logic, the court in Boykins v. Housing Authority of
10
Id. at 402.
11
Id.
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Louisville12 rejected a Housing Authority employee’s attempt to
carve a wrongful discharge action from Section 14 of the
Kentucky Constitution.
After finding that KRS 61.102, the
“Whistle Blower” statute, was not applicable, the court
considered the contention that the “open-courts” provision of
Section 14 creates an exception to the terminable at-will
doctrine.
With the same reasoning applied in Grzyb, the court
again rejected the application of the protections afforded by
the Kentucky Constitution to employment relationships.
Section
14, the court pointed out, mandates the government to provide
open access to the courts.
Rejecting it as a basis for a
wrongful discharge action in that particular case, the court
stated:
Section 14 has nothing to do with employment
rights as such. There is no employmentrelated nexus between the constitutional
policy stated in Section 14 and Boykins’
discharge. When Boykins filed suit against
HAL on behalf of her infant son she found
the court’s doors open to her.13
In a recent case this court was asked as a matter of first
impression to extend Firestone and its progeny to include a
cause of action for retaliatory failure to hire.14
12
842 S.W.2d 527 (Ky. 1992).
13
Although
Id. at 530.
14
Baker v. Campbell County Board of Education, 180 S.W.3d 479 (Ky. App.
2005).
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ultimately it was concluded that no cause of action exists, the
analysis included a reaffirmation of the law that Kentucky
Constitution Section 1 does not in itself sustain a wrongful
discharge action.
Notably, the Baker case also involved a
public entity.
Despite the reluctance of the Kentucky courts to
broaden the scope of the Commonwealth’s Constitution to the
realm of the employment relationship, we are cognizant of the
federal law and the interpretation of the Federal Constitution.
At one time, there was no more protection afforded a government
employee by the Constitution than a private employee.
As
Justice Holmes, when sitting on the Supreme Judicial Court of
Massachusetts, summarily stated, a policeman “may have a
constitutional right to talk politics, but he has no
constitutional right to be a policeman.”15
In the past fifty
years, however, the courts have recognized that permitting the
government to quash or chill the rights of freedom of political
association and speech is repugnant to the Constitution and to
public policy.16
A state, the highest court has held, can not
condition public employment on a basis that infringes on the
15
McAuliffe v. City of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517
(1892).
16
See e.g. Keyishian v. Board of Regents, 385 U.S. 589, 605-606, 87 S.Ct.
675, 684-685, 17 L.Ed.2d 629 (1967); Pickering v. Board of Education, 391
U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)).
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employee’s protected free speech interest.17
However, the
protection afforded by the First Amendment is not without
limitation and the rights of the employee citizen must be
balanced against the interests of the state as an employer.18
In
striking the balance, the protection afforded by the First
Amendment is limited to speech on a matter of public concern.19
While this state’s highest court has previously
rejected wrongful discharge claims based on Section 1 and
Section 14 of the Constitution of Kentucky, the reasoning was
based on the facts of those cases and can not be interpreted to
completely preclude wrongful discharge cases based on those or
other constitutional provisions.
We are not inclined, however,
to further comment whether, if a public employee is discharged
for the expression of matters of public concern or political
association, the public policy of this state would sustain a
wrongful discharge action based on this state’s constitution.
The pleadings and facts presented here render it unnecessary.
Glen does not present with distinct clarity the motive
behind his discharge.
He states that it was politically
motivated, not against him, but against his wife who had
political disagreements with the county judge.
His own
17
Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).
18
Id. at 461 U.S. 142, 103 S.Ct. 1687.
19
Id. at 461 U.S. 145, 103 S.Ct. 1690.
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testimony indicated that he had little contact with the county
judge.
As for his freedom of expression claim, there are no
facts that indicate the nature of the speech or opinion made by
Glen that caused the county to retaliate in the form of his
discharge.
In fact, Glen fails to state the words uttered that
allegedly precipitated the fiscal court’s decision.
If there
was an expression at all it came from his wife, and not from
Glen, in the form of political opinion on a matter of public
concern.
The only facts presented indicate that there was
political strife between Karen Glen and Damron.
Glen and Karen
may not have been liked by the then county administration but
there is no constitutional right to be thought well of by
others, including a public employer.
There is absolutely no
basis to support Glen’s wrongful discharge action based on
either freedom of association or freedom of speech.
Glen also contends that his discharge was in
retaliation for his participation in an attempt to unionize
county employees; his testimony indicates, however, that his
involvement was no more than attending a meeting and voting in
favor of the union.
There is no contention, nor could there be
under the facts, that this case falls within the purview of KRS
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336.130, which prohibits employers from interfering with
collective bargaining activities.20
Finally, the fact most determinative is Glen’s
complete lack of effort to either comply with the CDL
requirement or timely seek a waiver.
acceptable explanation.
For this, he offers no
He suggests that his belief the CDL
requirement was a political scheme designed to remove him from
employment justifies his failure to comply with a direct mandate
of his employer.
It appears to this court, however, that the
waiver was applicable to Glen’s situation had he timely applied.
So, while he argues that there was a plot against him, there was
a loop-hole arguably put into the policy for employees in his
position, but he simply failed to pursue the waiver.
Although Glen appears to have abandoned on appeal any
argument to the contrary, we briefly point out that the policy
is rationally related to a legitimate public purpose.21
Road
department employees, as a part of their duties, are often
required to operate heavy equipment on the public roads.
If
operated by those unqualified, the potential harm to the public
is substantial; we see nothing unreasonable or arbitrary,
therefore, by requiring the employees to obtain a CDL.
20
Pari-Mutuel Clerks’ Union v. Ky. Jockey Club, 551 S.W.2d 801 (Ky. 1977).
21
Buford v. Commonwealth, 942 S.W.2d 909 (Ky.App. 1997).
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Since under the pleadings and facts presented there is
no cause of action for wrongful discharge we do not address the
remaining issues of immunity, the scope of the release, or the
power of the court to order reinstatement.
The judgment of the
Pike Circuit Court is vacated.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John F. Kelley, Jr.
Farmer, Kelley, Brown,
Williams & Breeding
London, Kentucky
Lawrence R. Webster
Pikeville, Kentucky
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