Barber, Banaszynski & Hiatt, PSC

Navigating Employment Appeals with the Kentucky Personnel Board
posted by Jessica C. Durden
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The Commonwealth of Kentucky, the state’s top employer, offers a wealth of great reasons to work in government. State job postings are competitive and the benefits packages are attractive. So what happens to state employees when they face discipline, demotion, or termination?

Say an employee of the state receives written notice of termination: A typical termination letter from a state-affiliated agency will immediately cite the agency’s authority to hire and fire personnel. Facing job loss or discipline is a stressful position no matter where a person works, but when the notice of demotion or firing cites Kentucky Revised Statutes or Kentucky Administrative Regulations in the first couple paragraphs, employees often feel helpless to argue. Fortunately, those same statutes and regulations can actually spell relief for an employee in trouble.

The letter will also cite statutes defining the employee’s role, for example, as a classified employee, or their level of seniority. Classified employees may not be disciplined or fired except for cause, according to KRS 18A.095(1). This statute also details classified employees’ appeal rights, including the right to appear either pro se or with counsel in front of the Personnel Board and the right to hear reasons for discipline. The rest of the notice letter usually spells out the specific cause for discipline. Finally, the letter will specify the time frame in which the employee can appeal the Board’s decision.

A timely appeal of a decision of termination or other discipline is usually straightforward. Forms for the employee to appeal will often be attached to the letter of termination. It is vital that the disciplined employee file their appeal forms in the specified time frame. This is also the prime time to speak with an attorney. While the case may not proceed in a traditional courtroom, administrative appeals are still complicated legal proceedings, and dedicated legal counsel will be best able to navigate the regulatory morass on the employee’s behalf.

Once the appeal is filed, the matter proceeds much like a civil or criminal law suit: the parties set pre-hearing conferences, request discovery (information pertaining to the case, including personnel files, similar cases and outcomes, etc.), issue subpoenas, and proceed to a hearing date with the Personnel Board. These hearings are like trials and are conducted by a neutral hearing officer. Disciplined employees often fear that these hearing officers will not be truly neutral because they work for the State. But these officers are just like judges, most interested in the correct outcome supported by evidence, not in protecting a state agency’s decision.

At the hearing, appealing employees get the opportunity to hear the State’s case. The State has the burden of proof to show by preponderance of the evidence that the punishment was not erroneous or excessive. The appealing employee, then, has the opportunity to cross-examine each and every state witness and to put on his or her own proof to show that the punishment was unwarranted. Much like in a traditional trial, each side presents written evidence alongside verbal testimony to support its case, and each side may make objections. The hearing officer then takes the case under submission and writes a Recommended Order.

The Recommended Order details each phase of the hearing and recommended action, either sustaining or denying the appeal, and gives full reasoning for the hearing officer’s decision. Each side then has 15 days to file written exceptions before the hearing officer issues a Final Order. At that point, the case rests—unless either side is truly offended at the outcome, at which time the decision is eligible for appeal in Franklin Circuit Court. Employees who win their appeals may be restored to their former jobs, given back pay, credited with relevant leave time, and even attorney’s fees.

Navigating an administrative appeal can be overwhelming for an employee facing the consequences of firing or demotion. Hiring experienced counsel is vital to the employee’s chances of success. If you or someone you know has been disciplined, demoted, or terminated from a Commonwealth of Kentucky personnel position, contact Jessica C. Durden at durden@bbalaw.com or 502.254.2110 for immediate assistance.