Commonwealth v. Whitworth

KELLER, Justice,

dissenting.

I respectfully dissent from the majority opinion because I agree with the Court of Appeals that the trial court granted summary judgment prematurely before Appel-lees had an opportunity, through pre-trial discovery, to produce evidence that their breach of contract claims were brought under “lawfully authorized written contracts] with the Commonwealth.”1 Although I agree with the majority that the Commonwealth would be entitled to summary judgment unless Appellees can demonstrate that they were employed under lawfully authorized written contracts, I believe the record before us leaves that question unanswered.

The issue at the center of this controversy concerns the nature of Appellee’s employment with the Department of Parks (“the Department”). Appellees claim that, while they were initially hired pursuant to oral contracts with the Department, their employment contacts were subsequently ratified by “contracts, written agreements, or other documents that memorialize and ratify the initial oral agreements,” and that are contained in Appellees’ personnel files maintained by the Department. The majority concludes that — because Appellees were initially hired under oral agreements — further discovery would not affect summary judgment because any written agreement purporting to contract with Ap-pellees would exceed the Commissioner’s statutory authority and thus would not be “lawfully authorized.” I find the majority’s reasoning flawed.

KRS 148.026 permits the Commissioner to enter into any employment contracts he or she “deem[s] necessary or desirable,” and allows the Commissioner to “fix the compensation and the terms of employment ... of those contracted with”:

The commissioner of parks may employ or contract with such other persons, firms or corporations as he may deem necessary or desirable to accomplish the duties and functions assigned by law to the Department of Parks; may fix the compensation and the terms of employment or contract of those employed or contracted with; and may assign to them such duties and responsibilities as he may determine; provided, however, that any contract shall be approved by the Finance and Administration Cabinet before it shall become effective. Individuals employed by the commissioner *702of parks on a temporary basis for specific construction projects under KRS 56.491(5) or for maintenance projects shall be exempt from the requirements of KRS 18A.005 to 18A.200.2

Accordingly, if Appellants — pursuant to the Commissioner’s general employment and contracting authority — hired Appel-lees under oral contacts that were later approved in writing by the Finance and Administration Cabinet, Appellees may be entitled to prevail on their claims.

In my view, today’s majority “puts the cart before the horse” by reaching a factual determination as to the nature of Appel-lee’s employment and then concluding that a contract saying anything different would have been unauthorized. The contested issue of fact in this case concerns the nature of Appellee’s employment, and I believe it is inappropriate to decide that issue without considering the possibility that a written employment contract may exist that resolves the question. Although the majority believes that KRS 56.491(5)3 is somehow implicated, I disagree and would characterize that issue as a red herring. Appellees do not claim that they were hired “specifically for [a] project” and later converted into merit system employees. Instead, Appellees’ claim is fairly straightforward — they were hired under contracts and that the Department breached those contracts. While Appellant claims'that summary judgment was proper because Appellees were project employees, Appellees dispute that claim and ask for the opportunity to produce written contracts containing the terms of their employment. This factual dispute, standing alone, precludes summary judgment.

Although I reach a different result from the majority, I agree with several statements- of law set forth in the majority opinion. I agree that the doctrine of sovereign immunity does not make all oral contracts with the Commonwealth of Kentucky void' per se.4 I also agree, however, that sovereign immunity precludes claims against the Commonwealth unless the General Assembly has waived that immunity and, because no such waiver exists for them, oral contracts are not enforceable against the Commonwealth. However, I do not agree with the conclusion — apparently reached by the majority — that an oral contract cannot be enforced against the Commonwealth even if it is subsequently ratified in writing. KRS 148.026 provides otherwise. If Appellees uncover written approval of their employment contracts during the discovery process, sovereign immunity will not prohibit their claims against the Commonwealth because, under such circumstances, the General Assembly has waived sovereign immunity.5

By entering summary judgment in this case before Appellees had an opportunity *703to discover whether written contracts of employment exist, the trial court may have decided the ultimate issue in this case without considering direct evidence as to the nature of the employment relationship. The majority states that “[t]he employees offered no evidence as the actual existence of such documents.”6 While this observation is correct, I believe it is a mistake to cast aspersions upon the sufficiency of Ap-pellees’ evidence without considering the fact that their efforts to obtain evidence were stymied by limitations on pretrial discovery. The Court of Appeals reversed the trial court’s summary judgment because the trial court denied Appellees the opportunity to seek such evidence, and I believe this Court should affirm that decision.

Thus, I would affirm the decision of the Court of Appeals in its entirety, and I would remand this matter to the Franklin Circuit Court with instructions for it to reconsider summary judgment after permitting Appellees an opportunity to seek evidence of written employment contracts through discovery. If Appellees fail to discover such evidence, then and only then would summary judgment dismissing their claims be appropriate.

STUMBO, J., joins this dissenting opinion.

. KRS 45A.245(1).

. KRS 148.026.

. KRS 56.491(5):

A capital construction project, the total cost of completion of which the Finance and Administration Cabinet determines will not exceed two hundred thousand dollars ($200,000), may be performed by the employees of the requesting agency or by individuals hired specifically for the project who shall be exempt from the requirements of KRS Chapter 18A, if the project is approved and authorized by the cabinet. Necessary materials and supplies shall be procured in accordance with the standard purchasing procedures and policies of the cabinet as defined in KRS Chapter 45A.

. A “void contact” is defined as "[a] contract that is of no legal effect, so that there is really no contract in existence at all,” and "[ljoosely, a voidable contract.” BLACK’S LAW DICTIONARY 326 (7th ed.1999). Accordingly, like all contracts under KRS 148.026, an initial oral contract will have no legal effect until authorized in writing by the Finance and Administration Cabinet. Following such approval, however, it is an enforceable contract.

. KRS 45A.245:

*703(1) Any person, firm or corporation, having a lawfully authorized written contract with the Commonwealth at the time of or after June 21, 1974, may bring an action against the Commonwealth on the contract, including but not limited to actions either for breach of contracts or for enforcement of contracts or for both. Any such action shall be brought in the Franklin Circuit Court and shall be tried by the court sitting without a jury. All defenses in law or equity, except the defense of governmental immunity, shall be preserved to the Commonwealth.
(2) If damages awarded on any contract claim under this section exceed the original amount of the contract, such excess shall be limited to an amount which is equal to the amount of the original contract.

. Majority Opinion at 74 S.W.3d 695, 698 (2002).