COMMONWEALTH OF KENTUCKY
PERSONNEL BOARD
APPEAL NO. 2004-076
CONNIE SHEPHERD APPELLANT
VS. FINDINGS OF FACT, CONCLUSIONS OF LAW
AND RECOMMENDED ORDER
EDUCATION CABINET
DEPARTMENT OF VOCATIONAL REHABILITATION
VIRGINIA FOX, APPOINTING AUTHORITY APPELLEE
* * * * * * * *
This matter came on for a pre-hearing conference on May 5, 2004, at 10:30 a.m., 28 Fountain Place, Frankfort, Kentucky, before Mark A. Sipek, Hearing Officer. The proceedings were recorded by audio/video equipment and were authorized by virtue of KRS Chapter 18A.
The Appellant, Connie Shepherd, was present at the pre-hearing conference and was represented by the Hon. Paul F. Fauri. The Appellee, Education Cabinet, Department of Vocational Rehabilitation, was present and was represented by the Hon. Sue Simon.
The purposes of the pre-hearing conference were to determine the specific penalization alleged by the Appellant, to define the specific section of KRS Chapter 18A which authorizes the appeal, to determine the relief sought by the Appellant, to define the issues, address any other matters relating to the appeal, and to discuss the option of mediation.
Prior to the pre-hearing conference the Appellee filed a Motion to Dismiss. The Appellant has filed a response and the Appellee has filed a reply. This matter has now been assigned to Hearing Officer Stephen McMurtry for a ruling on the Appellee's Motion to Dismiss pursuant to KRS 18A.095(19)(a).
BACKGROUND
1. Connie Shepherd filed an appeal to the Personnel Board on March 3, 2004, alleging that she was improperly reprimanded for misconduct in March 2003. She also alleged her supervisor, shortly after the reprimand on March 6, 2003, faxed to her an inappropriate request that she supply confidential medical information to her employer.
2. The Cabinet on May 3, 2004, filed a motion to dismiss the appeal on the ground that a written reprimand is not a penalization as defined by KRS 18A.005(22), over which the Personnel Board has jurisdiction. The Appellant, Shepherd, responded citing this Board's Order of remand in the appeal of Perkins v. Health and Family Services Cabinet, Appeal No. 2003-221.
3. KRS 18A.005(22) defines a penalization as follows:
Penalization shall include, but not be limited to, demotion, dismissal, suspension, fines and other disciplinary actions, involuntary transfers; salary adjustments; any action that diminishes the level, rank, discretion, or responsibility of an employee without proper cause, including a reclassification or reallocation; and the abridgement or denial of other rights granted to state employees.
FINDINGS OF FACT
There are no disputed issues of fact pertinent to the Cabinet's Motion to Dismiss and Shepherd's reply. The facts recited in Shepherd's appeal and reply to the Cabinet's Motion to Dismiss shall be, for the purposes of this motion, assumed to be true.
CONCLUSIONS OF LAW
1. The issue, here, is the meaning of the phrase found in KRS 18A.005(22).
"Penalization" shall include, but not be limited to, demotion, dismissal, suspension, fines and other disciplinary actions. . . ."
Courts and administrative boards, acting in a judicial capacity, must give statutes a literal interpretation, unless they are ambiguous, following common and approved usage of language. McCracken Fiscal Court v. Graves, Ky., 885 S.W.2d 307 (1994). The purpose is to determine the legislative intent of a statute. If the intent is ambiguous, doubtful and open to more than one interpretation, rules of statutory construction may be employed.
2. The phrase “other disciplinary action” is susceptible to many interpretations, and untold employer actions against employees could be imagined, a result which the legislature certainly did not intend. By employing the doctrine of ejusdem generis as an interpretive aid the intent of the legislature can be approached. The doctrine provides “[w]hen a general word or phrase follows a list of specific persons or things, the general word or phrase will be interpreted to include only persons or things of the same type of those listed.” Commonwealth v. Plowman, Ky., 86 S.W.3d 47, 50 (2002). In the case before the Board, the general phrase "other disciplinary actions" follows a listing of specific words – demotion, dismissal, suspension, and fines – all of which create a materially adverse and immediate change in the terms and conditions of employment. By contrast, written reprimands do not. They may, at some future date, contribute to an adverse employment action at which time they may be questioned or litigated as part of a broader appeal to determine their merits.
3. For these reasons, the Hearing Officer concludes, as a matter of law, that a written reprimand is not a penalty as defined by KRS 18A.005 (22), and the Board has no jurisdiction to consider the factual issues of this appeal. All other issues raised by the Motion to Dismiss are thereby moot.
4. The Appellant was not penalized by the request for medical information.
RECOMMENDED ORDER
The Hearing Officer recommends to the Personnel Board that the appeal of CONNIE SHEPHERD (No. 2004-076) be DISMISSED.
EXCEPTIONS
Any Exceptions and/or Requests for Oral Argument hereto shall be filed within fifteen (15) days hereof and any Response to Exceptions shall be filed within five (5) days of the date the Exceptions are filed with the Board.
Each party has thirty (30) days after the date the Personnel Board issues a Final Order in which to appeal to the Franklin Circuit Court pursuant to KRS 13B.140 and 18A.100.
ISSUED at the direction of the Hearing Officer, this 19th day of August, 2004.
KENTUCKY PERSONNEL BOARD
__________________________
Mark A. Sipek
Executive Director
A copy hereof this day mailed to:
Hon. Paul F. Fauri
Hon. Sue Simon
Note: Final Order of the Board dated: September 14, 2004