RENDERED: AUGUsT 24, 2017
To BE PUBLISHED

Su]:rreme Tnuri uf °Beni'nckg .

2016-SC-OOOSOS-DG
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

M

As a general rule, persons aggrieved by administrative actions must
exhaust their administrative remedies before seeking redress in the courts.
The primary issue We must 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 a_nd 18A, precludes their subsequent action filed in

Franklin Circuit Court. We hold that- exhaustion of administrative remedies

 

1 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
KSP. In late 2004, KSP hired Mark 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 Fleriiing’s
grievance based on 101 KAR3 2:034 which permits salary adjustments only for

merit employees of the same class within the same county.4

 

2 Prior to transferring to the Maclisonville Post on August 1, 2004, Fleming had
been assigned to Henderson Post.

3 Kentucky Administrative Regulations.
4 The regulation, 101 KAR 2:034 § 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.

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
found that he knew or should have known no later than March 1, 2006, of
Boaz’s hire, class and salary.

The grievances were denied based on KRS 18A.095(29), Which states

Notwr'thstanding 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 in 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) ls in the same job classification;
[b) ls in the same work county; and

(c) Has a similar combination lof education and experience
relating to the relevant job class specification

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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 appear rights under KRs 1313. 140 and KRs isA. 100.

Neither Scott nor Fleming filed an appeal with the Franklin Circuit
Court, as directed by statute. lnstead, in August 2009, the two filed a verified
complaint and petition 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 protection 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

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the state claims back 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 were all entitled to governmental immunity. Yanero
v. Daz)is, 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
isA. 100 and chapter 1313. The eeuri, similariy, dismissed the KRs chapter
344 claims, holding that “jp]olitical affiliation is not a protected class_under the
Civil Rights Act.” As to the claims 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 violations See St. Luke’s Hosp., Inc.
v. Straub, 354 S.W.3d 529, 537 (Ky. 201 1) (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 [Straub] to mean that Plaintiff[s’] claims
based directly on the Kentucky Constitution for monetary damages

are foreclosed, but 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

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 85 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 higher rate of pay.” ln 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 court 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, however, held that Scott and Fleming had met
their burden of showing a prima facie 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 t

to equitable relief, In its judgment, the court stated:

Plaintiffs right to equal protection under the Kentucky
Constitution Section [2][51 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 he 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 from November 16, 2004 until December 07,
2004; (2) $3,205.32 per month from January 12, 2005 until
December l, 2005; (3) $3,365.60 per month until July 17, 2006;
[4) $3,469.78 per month until December ll, 2006; (5) $3,569.78
per month until July 1 l, 2007; (6) $3,882.28 per month until
December 10, 2007; ('7) $3,982.29 per month until December 12,
2008; and, (3) $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. 13an 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,

 

5 fn 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.

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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 l, 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;

The trial court’s order was made final and appealable CR6 54.02(1).

KSP appealed to the Court of Appeals. In a split opinion, that court
affirmed the trial court judgment, KSP argued that Scott and Fleming had
failed to exhaust their administrative remedies. 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.Sd 624, 626 (Ky. 2001). ln 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 on its face or as applied. In other
words, Scott and Fleming’ s direct action 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.

KSP filed a motion for discretionary review, which we granted.
II.. Standard of Review.

ln this case, 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 “[f|indings 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\ wimesses.” 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 &
Jejj"erson Cnfy. Metro. Sewer Disf. v. Bischojj", 248 S.W.3d 533, 535 (Ky. 2007)
(citing Bob Hook Chevrolet Isuzii, Inc. v. Commonwealfh 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
Louisi)ille, 309 Ky. l 1, 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 relief, and (3) a
party challenges the constitutionality of a particular regulation or statute on its

face. Popplewell's Alligafor Dock No. 1, Inc. v. Revenue Cabinet, 133 S.W.3d

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456, 471 (Ky. 2004). lf none of these exceptions apply, then the court is

deprived of subject matter jurisdiction

ln DLX, a mining company aggrieved by the Natural Resources and
Environmental Protection Cabinet (“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 unconstitutional 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 Kentuck,y Exec. Branch Ethics Comm'n v.
Afkinson, 339 S.W.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
of 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. lrrespective 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. ofAlberf 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.”).

Because we decide this case on the basis of Scott’s and Fleming’s failure
to exhaust their administrative 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 Yanero i). Dcwis, 65 S.W.3d

510; and St. Li_ike’s Hosp., Inc. v. Straub, 354 S.W.3d 529.

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IV. Conclusion.
Based on the foregoing, we reverse the Opinion of the Court of Appeals.

All sitting. All concur.

COUNSEL FOR APPELLANT:
Shawna Virgin Kincer
Kentucky State Police
COUNSEL FOR APPELLEE:
David F. Broderick

Brandon T. Murley
Broderick 85 Davenport, PLLC

COUNSEL FOR AMICUS CURIAE
KENTUCKY PERSONNEL CABINET:

Rosemary Holbrook

Office of Legal Services
Kentucky Personnel Cabinet.

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