Opinion
NO. 2016-CA-001174-MR
10-13-2017
THE BOARD OF EDUCATION OF OHIO COUNTY, KENTUCKY APPELLANT v. KENNETH ALFORD and THE DEPARTMENT OF EDUCATION, COMMONWEALTH OF KENTUCKY APPELLEES
BRIEFS FOR APPELLANT: Michael A. Owsley Regina A. Jackson Bowling Green, Kentucky BRIEF FOR APPELLEE: KENNETH ALFORD Michele Henry Aaron Joseph Bentley Louisville, Kentucky THE DEPARTMENT OF EDUCATION, COMMONWEALTH OF KENTUCKY Todd Allen Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM OHIO CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 15-CI-00325 OPINION
AFFIRMING
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BEFORE: COMBS, JOHNSON, J. LAMBERT, JUDGES. COMBS, JUDGE: The Board of Education of Ohio County appeals from an order of the Ohio Circuit Court affirming the decision of a three-member administrative tribunal convened by the Kentucky Department of Education pursuant to KRS 161.790(4). After a hearing, the tribunal concluded that Kenneth Alford, a public school teacher, had engaged in insubordination and in conduct unbecoming a teacher and that he had demonstrated immoral character. Although termination was recommended by the school district's superintendent, the tribunal determined that that sanction was not justified under the circumstances of the case. On appeal, the Ohio County Board of Education contends that the circuit court erred by affirming the tribunal's decisions to impose a less severe sanction and to require back pay during a period of suspension ordered by the superintendent. After carefully reviewing the entirety of the administrative record along with the tribunal's findings of fact and conclusions of law, we affirm.
Kentucky Revised Statutes. --------
Alford began his career as a math teacher at Ohio County High School in 2002. He also served as the school's academic team coach, kept the scorebook for the boys' basketball team, and kept the clock for the football team. The actions taken against him by the Board of Education at the beginning of the 2015-2016 school year were based upon multiple allegations of academic dishonesty; i.e., that he had improperly aided and abetted students to commit academic fraud.
After a short meeting with the high school's principal on August 6, 2015, Alford was suspended from teaching (without pay) pending the outcome of an investigation of his conduct. Following an investigation of the allegations made against Alford, the Board notified him that it intended to terminate his teaching contract. Alford invoked his right to an administrative review by a hearing tribunal, which met on September 22-23, 2015.
The tribunal is authorized by statute to conduct an administrative hearing; to make findings of fact; to determine whether grounds for termination have been proven; and to render a final order concerning disciplinary matters pertaining to a public school teacher. During its hearing, the tribunal heard testimony from school administrators, staff, and a number of current and former students of Ohio County High School. After its deliberations, the tribunal issued its written findings of fact, conclusions of law, and final order.
The tribunal found that there was insufficient evidence to establish that Alford had provided answers to any student taking an online examination that he had proctored during the 2012-2013 school year. However, it did find that Alford had helped a student to commit academic fraud with respect to an online summer course in humanities immediately prior to the beginning of the 2015-2016 school year. It found that the student had completed none of the course work, that he had learned nothing about the humanities, but that he had -- with Alford's assistance -- scored 97.5% on the course examination. The tribunal concluded that Alford had engaged in conduct unbecoming a teacher by assisting the student to cheat and that Alford's conduct demonstrated his immoral character. It concluded that Alford had failed to comply with the code of ethics governing public school teachers, that he had failed to maintain a professional relationship with students, and that his actions constituted insubordination.
Despite its conclusions, the tribunal rejected the Board's proposal to terminate Alford's contract. Additionally, it ordered that Alford receive back-pay for the period of his suspension through September 23, 2015. It ordered that he be suspended without pay beginning September 24, 2015, through the remainder of the 2015-2016 school year. A return to teaching duties was conditioned upon Alford's completion of thirty hours of professional development activities. The costs of the professional development activities were to be paid by the school district. The tribunal advised the parties that its order was subject to judicial review by the circuit court pursuant to the provisions of KRS Chapter 13B.
The Board filed a petition for judicial review in the Ohio Circuit Court as provided by KRS 161.790(9). The Board contended that the decision of the tribunal to modify the sanctions proposed by its superintendent was contrary to law and was unsupported by the evidence. The Department of Education answered the petition and asked that it be dismissed with prejudice.
After reviewing the record, the Ohio Circuit Court concluded that it could not substitute its judgment for that of the tribunal and affirmed those portions of its decision ordering that Alford be suspended through the remainder of the 2015-2016 school year and ordering the Board to pay his salary during the period of suspension from August 18, 2015, through September 23, 2015. However, the court rejected the tribunal's decision ordering the Board to pay the costs of Alford's professional development activities. The court concluded that it could find no statutory authority for the imposition of such a sanction against the Board.
On appeal, the Board argues that the trial court erred by affirming the tribunal's decision merely to suspend Alford for the remainder of the school year and its order that he be paid his salary during the brief suspension that preceded the tribunal's decision.
It is the function of the tribunal to ascertain the facts, to apply the law, and, if appropriate grounds are found, to decide upon an appropriate sanction for the misconduct of a public school teacher. See Board of Education of Fayette County v. Hurley-Richards, 396 S.W.3d 879 (Ky. 2013); Fankhauser v. Cobb, 163 S.W.3d 389 (Ky. 2005). Despite this extensive authority conferred upon the tribunal, the Board nonetheless contends that the tribunal's decision ordering it to pay Alford his salary for the period between August 18 through September 23, 2015, was "nonsensical." It argues that this determination was inconsistent with the tribunal's finding that Alford should be sanctioned for his misconduct and thus that it constitutes a misapplication of law. We disagree.
The provisions of KRS 161.790 govern the circumstances under which a public school teacher may be suspended from his duties. KRS 161.790(8) provides that a superintendent may suspend the teacher pending final action to terminate the contract if -- in his judgment -- the character of the charge warrants such action. As an alternative to termination of a teacher's contract, the provisions of KRS 161.790(10) permit a superintendent to impose other sanctions -- including suspension without pay. With respect to suspension of a teacher pending final action to terminate his contract, KRS 161.790(8) provides that if the decision of the tribunal is ultimately against termination, the suspended teacher "shall be paid his full salary for any period of suspension."
In this case, the tribunal decided that termination of Alford's contract was not an appropriate sanction. In accordance with the provisions of KRS 161.790(8), it ordered that he be paid his full salary for the brief period of his suspension. The decision of the tribunal in this case ordering that Alford receive his back pay for the period between August 18 and September 23, 2015, is plainly authorized by the provisions governing teacher discipline. Therefore, the circuit court did not err by affirming its order.
The Board also argues that the only penalty supported by the evidence was the termination of Alford's contract. Again, we disagree.
The standard of judicial review of the tribunal's decision is whether the decision was arbitrary, capricious, or abusive of the tribunal's discretion. KRS 13B.150; Gallatin County Bd. of Educ. v. Mann, 971 S.W.2d 295 (Ky. App. 1998). Administrative action is arbitrary if it is not supported by substantial evidence. American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning, 379 S.W.2d 450 (Ky. 1964). "'Substantial evidence' means evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Fankhauser, supra (citing Owens-Corning Fiberglass Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998)). The court may not substitute its judgment for that of the tribunal as to the weight of the evidence on questions of fact. KRS 13B.150. We must defer to the tribunal's findings -- even where there is evidence to support a contrary finding. Kentucky Commission on Human Rights v. Fraser, 625 S.W.2d 852 (Ky. 1981).
The Board concedes that the superintendent's disciplinary decision is not binding upon the tribunal. It also correctly observes that a deviation from the proposed sanction must be supported by substantial evidence. However, we disagree with its contention that the circuit court's order must be reversed in this case because the tribunal failed to explain the basis of its decision to impose a less severe sanction against Alford. Under the circumstances, the tribunal was not required to provide an explanation for its decision not to accept the superintendent's proposed termination of Alford's contract.
In Fankhauser, supra, at 163 S.W.3d 402, the Supreme Court of Kentucky observed that absent an express finding that the superintendent's proposed sanction is justified, "a finding of mitigating factors or that the proposed sanction is arbitrary, unfair, discriminatory, or disproportionate is unnecessary." The tribunal did not find that the superintendent's recommendation of termination was justified in this case. Instead, it simply rejected that proposed sanction and instead imposed a suspension of several months. Under the circumstances, we cannot say that the tribunal's decision was arbitrary or capricious -- or that it constituted an abuse of its discretion.
We affirm the judgment of the Ohio Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Michael A. Owsley
Regina A. Jackson
Bowling Green, Kentucky BRIEF FOR APPELLEE:
KENNETH ALFORD Michele Henry
Aaron Joseph Bentley
Louisville, Kentucky THE DEPARTMENT OF
EDUCATION, COMMONWEALTH
OF KENTUCKY Todd Allen
Frankfort, Kentucky