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KENTUCKY STATE POLICE. APPELLANT
ON REVIEW FROM COURT OF APPEALS
v. CASE NO. 2014-CA-001081-MR
FRANKLIN CIRCUIT COURT NO. 09-CI-01342
TERRY SCOTT AND APPELLEES
DAMON FLEMING
OPINION OF THE COURT BY JUSTICE VANMETER
.REVERSING
As a general rule, persons aggrieved by administrative actions must
exhaust their administrative remedies before seeking redress in the courts.
. '
The primary issue we rriust resolve in this case is whether the failure of Terry
Scott and Damon Fleming to appeal denial of their respective grievances
· against the Kentucky State Police ("KSP'') by the Personnel Cabinet, under
KRSl Chapters 13B ~d 18A, precludes their subsequent action filed in
Franklin Circuit Court. We hold that exhaustion of administrative remedies
i Kentucky ReVised Statutes.
was required in this case and therefore reverse to the trial court with
instructions to dismiss this action.
I. Factual and Procedural Background.
Scott and Fleming were each hired in 2002 as an Arson Investigator II by
KS.P. In late 2004, KSP hired Ma;rk Boaz as an Arson Investigator II for the
Henderson Post. Boaz's starting salary was $38,083 per annum, the midpoint
authorized salary for the position. At the time of Boaz's hire, Scott, assigned to
the Elizabethtown Post, earned $31,578 per annum, and Fleming, assigned to
the Madisonville Post, was earning $31,261 per annum. 2 As noted by both the
circuit court and Court of Appeals, Boaz told Scott that he had negotiated a
higher salary; Scott then relayed this information to Fleming.
In May 2006, Scott and Fleming filed internal grievances concerning
Boaz's higher rate of compensation in comparison to their rate of
compensation. The dates the grievances were filed are not exactly clear from
the record; however, on May 25, 2006, the KSP Commissioner denied Fleming's
grievance based on 101 KAR3 2:034 which permits salary adjustments orily for
merit employees of the same class within the same county.4
2 Prior to transferring to the Madisonville Post on August 1, 2004, Fleming had
been assigned to Henderson Post.
3 Kentucky Administrative Regulations.
4 The regulation, 101KAR2:034 § 1, provides, in full:
New Appointments. (1) An appointing authority shall appoint a
new employee at a salary not to exceed the midpoint of the pay
grade.
2
Both Scott and Fleming filed appeals with the Personnel Board. Scott's
·appeal was filed on May 25, 2007; Fleming's appeal was filed on June 4, 2007.
They alleged that Boaz's hire and rate of pay had been motivated by his having
changed his political voting registration to coincide with that of the incumbent
governor.
With respect to Scott, the hearing officer found that Scott knew or should
have known no later than February 28, 2006, that Boaz had been hired as an
Arson II investigator at a certain salary. As to Fleming, the hearing officer
fqund that he knew or should have known no later than March 1, 2006, of
Boaz's hire, class and salary.
The grievances were 4enied based on KRS 18A.095(29), which states
Notwithstanding any other prescribed limitation of action, an
employee that has been penalized, but has not received a written
notice of his .or her right to appeal as provided iJ:?. this section, shall
file his or her appeal with the Personnel Board within one (1.) year
from the date of the penalization or from the date that the
employee reasonably should have known of the penalization.
The Personnel Board's Hearing Officer issued Findings of Fact,
Conclusions of Law and Recommended Orders dismissing both Scott's and
Fleming's appeals on September 20, 2007. Those Recommended Orders set
(2) The appointing authority shall adjust to that salary an
employee who is earning less than the new appointee's salary, if
the appointing authority determines that the incumbent employee:
(a) Is in the same job, classification;
(b) Is in the same work county; and
(c) Has a similar combination of education and experience
relating to the relevant job class specification.
out Scott's and Fleming's Exception and Appeal rights under KRS 13B.-140 and
KRS 18A.100. Apparently, no exceptions were filed and the Personnel Board
entered its Final Orders in conformity with the Hearing Officer's
recommendations on October 16, 2007. The Board's Final Order also noted
the appeal rights under KRS 13B.140 and KRS 18A.100.
Neither Scott nor Fleming filed an appeal with the Franklin Circuit
Court, as directed by statute. Instead, in August 2009, the two filed a verified
complaint and p~tition for declaration of rights as an original action in the
Franklin Circuit Court. The factual allegations were that Boaz was hired at a
substantially higher salary than Scott or'Fleming despite having less law
enforcement experience than they had, and KSP had failed to pre-certify Boaz
under the Peace Officer Professional Standard in accordance with KRS 15.382,
.388. The allegations were that these hiring discrepancies were due to Boaz's
changing his political registration from Democrat to Republican (to coincide
with that of then incumbent Governor Fletcher). The first count of the
complaint alleged a violation of KRS 18A.140, and a denial of freedom of
association and equal protectiori as guaranteed by the Kentucky Constitution
ᤤ 1-3, and the United States Constitution Amendments 1 and 14, thereby
' entitling Scott and Fleming to compensatory and punitive damages. The
second count alleged a violation of KRS Chapter 15.
KSP removed the case to federal court due to Scott's and Fleming's
assertion of violations of their federal civil rights. In a memorandum opinion,
the district court dismissed the federal claims with prejudice, and remanded
) .
4
/
/
the state claims ba~k to the Franklin Circuit Court. Fleming v~ Ky. State Police,
3:09-35-DCR, 2010 WL 881907 (E.D. Ky., Mar. 5, 2010). Following remand,
Scott and Fleming amended their complaint two times to add an allegation of
violation of the Kentucky Civil Rights Act, KRS Chapter 344 and to name
individual defendants.
Ultimately, the trial court dismissed most of Scott's and Fleming's
. '
claims. In a 2012 Order, the trial court held that KSP and four individuals
named in official capacities wer~ all entitled to governmental immunity. Yanero
v. Davis, 65 S.W.3d 510, 519 (Ky. 2001). Subsequently, and as to the KRS
Chapter 18A claims, the trial court recognized that its jurisdiction with respect
to administrative proceedings was limited to matters appealed under KRS
18A.100 and Chapter 13B. The court, similarly, dismissed the KRS Chapter
344 claims, holding that "[p]olitical affiliation is not a protected class.under the
Civil Rights Act." As to the clajms for violation of the ,Kentucky Constitution,
the trial court recognized that no tort cause of action exists in Kentucky to
provide money damages for constitutional viola~ions. See St. Luke's Hosp., Inc.
v. Straub, 354 S.W.3d 529, ?37 (Ky. 2011) (declining to create judicially a new.
constitutional tort for a private· right of action for state constitutional
violations). Despite the foregoing, the trial court, nevertheless, permitted the
case to go forward, stating
The Court interprets [Strauf?] to mean that Plaintiff[s'] claims
based directly on the Kentucky Constitution for monetary damages
are foreclosed, t;>ut not that Plaintiff[s are] barred from bringing any
and all claims directly under the Kentucky Constitution. If the
plaintiffs demonstrate a constitutional violation in the form of
5
political discrimination that violates the right to freedom of
association and the right of equal protection, they should have a
remedy. The remedies available to the Plaintiffs may be limited to
equitable relief, such as injunctive relief, but it would be premature
to dismiss their claims. If Plaintiffs prove a violation of their right
to equal protection under the state· constitution, they may be
entitled to injunctive relief in the form of reinstatement, backpay,
restoration of retirement benefits, or some other actions necessary
to make them whole[.] See e.g., 200 KAR 12:030. Courts are
afforded "broad equitable discretion to fashion back pay awards."
David v. Caterpillar, Inc., 324 F.3d 851,. 865 (7th Cir. 2003).
The trial court held a bench trial in October 2013, following which it
entered. an Opinion & Order adjudicating the sole issue of "whether Plaintiffs'
'constitutional right to equal protection was violated when [KSP] hired Mark
Boaz as an Arson Investigator II, at a substantially pigh~r rate of pay." In its
Findings of Fact, the court made extensive findings with respect to Boaz's,
Scott's and Fleming's employee class, pay and history, and what it
characterized as a number of irregularities in the hiring process for Boaz.
The trial cmirt concluded that KSP committed "flagrant violations of the
hiring procedures required in KRS Chapter 18A[,]" but noted the administrative
violations are not before the court by. Scott's and Fleming's failure to exhaust
admirative remedies. The court, ho'¥ever, held that Scott and Fleming had met
their burden of showing a prima fade case of an equal protection violation,
specifically grossly unequal treatment between themselves and Boaz, for which
KSP had failed to prove any rational or reasonable justification, entitling them
to equitable relief. In its judgment, the court stated:
6
Plaintiffs right to equal protection under the Kentucky
Constitution Section [2]l5l was violated by Defendant. KSP failed
to prove any rational or reasonable justification for the grossly
unequal treatment of Mr. Boaz as compared to' the Plaintiffs. By
reason of this violation of their right to equal protection under the
state constitution, Plaintiffs are entitled to injunctive relief in the
form of reinstatement to a position with the same grade and pay as
Mr. Boaz, back pay, restoration of retirement benefits, and any
other actions necessary to make them whole. See e.g., 200 KAR
12:030. Courts are afforded "broad equitable discretion to fashion
back pay awards." David v. Caterpillar. Inc., 324 F.3d 851, 865
(7th Cir. 2003). Accordingly, IT IS ORDERED AND ADJUDGED:
1. That the Plaintiffs shall be paid back pay and benefits
at the same rate KSP paid Mark Boaz for all wages and benefits for
the entire period of employment in which each plaintiff was
employed by KSP starting with the date of the original employment
of Mr. Boaz, with said wages and benefits to be calculated and
credited to the Plaintiffs consistent with 200 KAR 12:030;
2. The Plaintiffs are entitled to the following injunctive and
equitable relief against Defendant in order to be made whole:
a. Kentucky State Police shall reimburse Plaintiff Terry
Scott an amount of back pay as if J?.e were employed at the same
rate as Mark Boaz from the date of the hire of Terry Scott, April 1,
2002 until present, similar to Mark C. Boaz who was employed at
the following monthly rates of pay for the time period: (1)
$3,173.58 per month froin November 16, 2004 until December 07,
2004; (2) $3,205.32 per month from January 12, 2005 until
December 1, 2005; (3) $3,365.60 per month until July 17, 2006;
(4) $3,469.78 per month until December 11, 2006; (5) $3,569.78
per month until July 11, 2007; (6) $3,882.28 per month until
December 10, 2007; (7) $3,982.29 per month until December 12,
2008; and, (8) $4,062.36 per month until April 23, 2010. Further,
Kentucky State Police shall restore his retirement benefits in an
amount commensurate with his rate of pay being equal to that of
Mark C. Boaz as detailed above;
b. Kentucky State Police shall reimburse Plaintiff Damon
Fleming an amount of back pay as if he were employed at the same
rate as Mark Boaz from the date of the hire of Terry Scott,
'
s In this final section of its Opinion & Order, the trial court referred to Section 3
of the Kentucky Constitution. Earlier portions of the Opinion, however, make clear
that the court intended to refer to Section 2.
7
November 1, 2002 until July 10, 2009, similar to Mark C. Boaz
who was employed at the following monthly rates of pay for the
time period: (1) $3, 173.58 per month from November 16, 2004
until December 07, 2004; (2) $3,205.32 per month from January
12, 2005 until December 1, 2005; (3) $3,365.60 per month until
July 17, 2006; (4) $3,469.78 per month until December 11, 2006;
(5) $3,569. 78 per month until July 11, 2007; (6) $3,882.28 per
month until December 10 , 2007; (7) $3,982.29 per month until
December 12, 2008; artd, (8) $4,062.36 per month until April 23,
2oi'o. Further, Kentucky State Police shall restore his retirement
benefits in an amount commensurate with his rate of pay being
equal to that of Mark C. Boaz as detailed above;
The trial court's order was made final and appealable. CR6 54.02(1).
KSP appealed to the Court of 5\-ppeals. In a split opinion, that court
affirmed the trial court judgment. KSP argued that Scott and Fleming had
failed to exhaust their administrative re.medies. The Court of Appeals majority
opinion rejected this argument on the basis that such exhaustion is not
required when attacking the validity of a statute or regulation· as void on its
\_
face because an administrative agency cannot decide constitutional issues,
citing Commonwealth v. DLX, Inc., 42 S~W ..3d 624, 626 (Ky. 2001). In contrast,
"
the Court .of Appeals dissent noted the exception to exhaustion set out in DLX
was inapplicable because Scott and Fleming did not attack the constitutional
validity of a statute or regulation either ori its face or as applied. In other
words, Scott and Fleming's direct ac,tion was precluded by their failure to
exhaust their administrative remedies. The dissent further urged that Scott
and Fleming's' direct action for back pay was counter to this Court's decision in·
Straub, 354 S.W.3d at 537-38.
6 Kentucky Rules of Civil Procedure.
8
. I
KSP filed a motion for discretionary review, which we granted.
II. Standard of Review.
In this c'ase, the trial court held a bench trial. Thus, to the extent that
any factual issues are germane to our review, we, of course, defer to the fact
finder, in this instance the trial court, and "[fJindings of fact, shall not be set
aside unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the witnesses." CR
52.01. That said, the issues in this case seems to involve pure questions of law,
and are therefore subject to de novo review by this Court. Louisville &
Jefferson Cnty. Metro. Sewer Dist. v. Bischoff, 248 S.W.3d 533, 535 (Ky. 2007)
(citing Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth Transp. Cabinet, 983
S.W.2d 488, 490 (Ky.1998)).
III. . Issue on Appeal.
As in both lower courts, KSP argues that Scott's· and Fleming's failure to
exhaust administrative remedies bars
\
their direct action
.
in the Franklin Circuit
Court. We agree.
As noted, exhaustion of administrative remedies is required prior to
resort to the courts. DLX, 42 S.W.3d at 625 (citing Goodwin v. City of
Louisville, 309 Ky. 11, 215 S.W.2d 557, 559 (1948)). Three exceptions exist to
this rule of law: (1) a party demonstrates the futility of continuing the
administrative process, (2) a statute authorizes direct judicial r~lief, and (3) a
party challeng~s the constitutionality of a particular regulation or statut~ on its
face. Popplewell's Alligator Dock No. 1, Inc. v. Revenue Cabinet, 133 S.W.3d
9
456, 471 (Ky. 2004). If none of these exceptions apply, then the court is
deprived of subject matter jurisdiction.
In DLX, a.mining company aggrieved by the Natural Resources and
Environmental Protection C'abinet ("Cabinet") alleged taking of its property
without compensation in violation of Section 242 of the Kentucky Constitution
filed a direct action in Franklin Circuit Court. In holding that exhaustion of
administrative remedies was required, we held
Exhaustion of administrative remedies is not necessary
when attacking the constitutionality of a statute or a regulation as
void on its face. Goodwin[, 309 Ky. 11, 215 S.W.2d at 559]. This
is because an administrative agency cannot decide constitutional
issues. Id. Thus,, to raise the facial constitutional validity of a
statute or regulation at the administrative level would be an )
exercise in futility. This exception does not apply in the case at
bar, however, because DLX has not challenged the facial validity of
the surface mining statutes and regulations. Rather, as its
complaint shows, DLX's argument is that the Cabinet's application
of the statutes and regulations resulted in an unconstitutional
taking of its property. '
· When an administrative agency applies a statute
unconstitutionally, it acts beyond the bounds of the constitution,
rather than passing on a constitutional question. In other words,
until a statute has been applied, there can be no unconstitutional
application. This is the basis for the rule that one must first show
injury as the result of a statutory application, before that
application may be attacked as ullconstitutional. See,· e.g., Stein v.
Kentucky State Tax Commission, 266 Ky. 469, 99 S.W.2d 443, 445
(1936). Thus, exhaustion of administrative remedies is not futile to
an as-applied challenge to a statute. Quite the contrary, it is the
administrative action which determines the extent, if any, of the
constitutional injury.
DLX, 42 S.W.3d at 626; see also Kentucky Exec. Branch Ethics Comm'n v.
Atkinson, 339 RW.3d 472, 476 (Ky. App. 2010) (holding that property valuation
administrators were required, notwithstanding claim of agency's arbitrary
10
exercise of power, to exhaust administrative remedies before seeking judicial
relief).
Similar to DLX, Scott and Fleming have not challenged the facial validity
of any statutes or regulations. Instead, they have challenged KSP's application
o.f hiring statutes and regulations in its hiring of Boaz which, they claim, has
. .
injured them. Under KRS 18A.095, administrative jurisdiction over
penalization is vested in the Personnel Board. Irrespective of whether the
Personnel Board's 2007 decision regarding Scott~s and Fleming's claim was
correct, their obligation was to appeal timely that decision to the Franklin
. Circuit Court. KRS 13B.140, 18A.100. That determination is long since final,
and operates as res judicata of any matters arising from the facts as alleged by
Scott and Fleming. See Godbey v. Univ. Hosp. of Albert B. Chandler Med. Ctr.,
Inc., 975 S.W.2d 104, 105 (Ky. App. 1998) ("Kentucky has for many years
followed the rule that the decisions of administrative agencies acting in a
judicial capacity are entitled to the. same res judicata effect as judgments of a
court.").
Becaus.e we decide this case on the basis of Scott's and Fleming's failure
to exhau·st their adminis~rative remedies, we do not reach the other primary
issue raised: whether the trial court effectively awarded Scott and Fleming
monetary damages contrary to our decisions in Yan~ro v. Davis, 65 S.W.3d
510; and St. Luke's 'Ifosp., Inc. v. Straub, 354 S:W.3d 529.
11
IV. Conclusion.
Based on the foregoing, we reverse the Opinion of the Court of Appeals.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Shawna Virgiri Kincer
Kentucky State Police
COUNSEL FOR APPELLEE:
David F. Broderick
Brandon T. Murley
Broderick & Davenport, PLLC
COUNSEL FOR AMICUS CURIAE
KENTUCKY PERSONNEL CABINET:
Rosemary Holbrook
Office of Legal Services
Kentucky Personnel Cabinet.
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Kentucky State Police v. Terry Scott
Combined Opinion