RENDERED: DECEMBER 4, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2019-CA-1815-MR
LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE JOHN E. REYNOLDS, JUDGE ACTION NO. 18-CI-03551
JOHN LOWE AND FRATERNAL \ ORDER OF POLICE TOWN BRANCH LODGE #83 APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND JONES, JUDGES.
COMBS, JUDGE: Lexington-Fayette Urban County Government (LFUCG)
appeals the denial of its motion to dismiss and the summary judgment of the
Fayette Circuit Court entered in favor of John Lowe and Fraternal Order of Police
Town Branch Lodge #83 (FOP) on November 21, 2019. The circuit court
concluded that LFUCG breached the terms of the parties’ collective bargaining agreement when it placed Lowe on leave without pay following his arrest in June
2014 and later dismissed him from service. After our review, we affirm.
The facts are undisputed. Lowe was hired as a community corrections
officer by LFUCG in November 2002. He was promoted to sergeant in December
2012. He worked at the Fayette County Detention Center processing inmates. He
was a member of FOP. LFUCG and FOP executed collective bargaining
agreements. One of the agreements was effective between February 2012 and
February 2016; the other between November 2015 and November 2019.
On June 5, 2014, Lowe was arrested based on allegations that on three
occasions, he sodomized and sexually abused his seven-year-old stepdaughter. He
was booked into the Fayette County Detention Center.
On this date, Major James Kammer, Bureau Manager, Division of
Community Corrections, advised Lowe in writing that he was recommending
Lowe’s dismissal based on the acts of moral turpitude and the pending criminal
charges against him. In a memorandum acknowledged by Lowe, Kammer notified
Lowe that he was also being placed immediately on leave without pay pending
termination proceedings. Lowe’s sworn authority was withdrawn. Pursuant to the
terms of the parties’ collective bargaining agreement and within 24 hours from the
date of his booking, he was advised that he could request a meeting with the
-2- director of Community Corrections for the purpose of presenting “your side of the
matter along with any materials you wish to provide.”
On June 6, 2014, Lowe’s criminal defense attorney corresponded with
Kammer. Defense counsel indicated that he also represented Lowe with respect to
his employment status with LFUCG. Counsel informed Kammer that Lowe denied
the criminal allegations made against him and that he objected to any change in his
employment status. Lowe specifically objected to being placed on leave without
pay and the recommendation that he be dismissed from service. Finally, counsel
advised that Lowe “would be glad to appear for a hearing or a meeting . . . .”
LFUCG’s counsel responded to Lowe’s counsel by letter dated June
10, 2014. LFUCG reiterated that Lowe’s law enforcement authority had been
withdrawn pursuant to the terms of the parties’ collective bargaining agreement.
LFUCG indicated that as a consequence of the withdrawal of his sworn authority,
Lowe could not report for duty and that he would remain on administrative leave
without pay until the criminal charges were resolved. LFUCG reported that an
internal affairs investigation had been initiated but that it would be held in
abeyance until the criminal matter had been resolved unless other information
came to light. Lowe was cautioned that his conviction would result in dismissal.
Finally, LFUCG advised that “[t]he current status of this matter does not require
-3- that Sergeant Lowe meet with Director Ballard (or his designee), but Director
Ballard is willing to have such a meeting if Sergeant Lowe so desires.”
On November 23, 2015, Lowe was indicted for two counts of sodomy,
first degree (Class A felonies) and one count of sexual abuse, first degree (a Class
C felony). Nearly two years later, on October 18, 2017, Lowe entered a plea
pursuant to the standard announced by the U.S. Supreme Court in North Carolina
v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) to three counts of
unlawful transaction with a minor, third degree (Class A misdemeanors). Final
judgment convicting Lowe of the amended charges was entered, and Lowe was
sentenced by the Fayette Circuit Court to time served.
On October 26, 2017, a memorandum -- marked as though it would be
circulated to Lowe -- was prepared by Steven Haney, Director, Division of
Community Corrections. The memorandum indicated that based upon his guilty
plea to the charges against him, Lowe was dismissed from his employment as of
that date. Lowe was instructed to return his facility equipment to the training
department. This memorandum was not initially transmitted to Lowe or to his
lawyer, nor was it transmitted to FOP. Haney also executed a personnel action
request, effective October 26, 2017, which officially terminated Lowe for
misconduct under Section 8(c) of the Uniform Disciplinary Code. Lowe was not
informed of this official personnel action.
-4- Unaware of either the memorandum or the personnel action, Lowe’s
new attorney corresponded with Director Haney on November 2, 2017. Counsel
recounted Lowe’s suspension pending resolution of the criminal matter. He
advised that the criminal matter had been resolved and that Lowe intended to
return to his duties on Monday, November 6, 2017. Counsel also requested
backpay that had been accruing since Lowe’s suspension on June 5, 2014.
On November 4, 2017, counsel for Lowe corresponded again with
Haney. Counsel related that he had learned of Lowe’s termination during an
unrelated grievance hearing just the day before. He demanded Lowe’s immediate
reinstatement. Counsel indicated that in his memorandum of June 5, 2014, Major
Kammer had “improperly represented the disciplinary process and the employment
status of officers having pending criminal charges under the 2012 Collective
Bargaining Agreement and LFUCG Corrections polices.” Counsel indicated that
there was no provision for administrative leave without pay under the terms of the
parties’ agreement and that LFUCG had failed to deliver to Lowe a disciplinary
action form providing notice of the proposed discipline and an opportunity for a
hearing before the leave was imposed.
On November 6, 2017, LFUCG responded. It informed counsel that
Lowe’s failure to file a grievance pursuant to the terms of the parties’ collective
bargaining agreement meant that Lowe had accepted the initial employment action,
-5- i.e., on leave without pay. Moreover, since Lowe’s conviction involved an abuse
of his position of authority over another in his care, LFUCG viewed him as
unqualified to fulfill his duties as a corrections officer. Citing provisions of the
parties’ collective bargaining agreement and the Division of Community
Corrections Policy and Procedure manual, LFUCG advised that Director Haney
recommended Lowe’s dismissal. LFUCG documented that upon the request of
FOP, Lowe’s counsel had agreed to accept written notice of Lowe’s termination.
LFUCG reminded counsel that Lowe had five (5) calendar days to schedule a
meeting with Director Haney regarding the termination. On November 8, 2017,
the internal affairs investigation was completed based upon the entry of the
judgment of conviction. Lowe executed a FOP grievance report form on
November 9, 2017.
On November 14, 2017, John W. Maxwell, LFUCG’s director of
human resources, corresponded with Lowe’s counsel. Maxwell denied that
LFUCG had acted outside its authority when it placed Lowe on leave without pay
following his arrest on felony charges. He indicated that “Lowe and [FOP] had 10
days to file a grievance from his notification of being on unpaid leave if he felt
such action was unfair.” Having failed to do so, Maxwell opined that they were
not authorized to do so now. With respect to Lowe’s dismissal, Maxwell indicated
-6- that he had been terminated pursuant to an express provision of the Policy and
Procedure Operations Manual. Maxwell denied the grievance.
Pursuant to provisions of the parties’ collective bargaining agreement
and Lowe’s written request delivered two days after Maxwell denied the grievance,
the dispute was set for non-binding arbitration. A hearing was conducted on June
30, 2018. The arbitrator received evidence, heard testimony, and considered the
written and oral arguments of counsel. On August 31, 2018, an advisory decision
was entered.
The arbitrator determined that Lowe had failed to timely file a
grievance in accordance with the express provisions of the parties’ collective
bargaining agreement concerning LFUCG’s decision to put him on leave without
pay. The arbitrator also determined that Lowe had failed to file a timely grievance
with respect to his dismissal. Consequently, the arbitrator concluded that issues
related to LFUCG’s decision to place Lowe on leave without pay -- and later to
terminate his employment -- were not arbitrable under the terms of the parties’
collective bargaining agreement.
On October 10, 2018, Lowe and FOP filed an action against LFUCG
in Fayette Circuit Court for breach of contract. They alleged that LFUCG had
placed Lowe on leave without pay and then dismissed him in contravention of the
express terms of the parties’ collective bargaining agreement. They sought Lowe’s
-7- reinstatement and recovery of his backpay; the value of his accrued vacation and
holiday pay; and attorneys’ fees and costs.
Without filing an answer, LFUCG filed a motion to dismiss. LFUCG
argued that the terms of the parties’ collective bargaining agreement provided the
sole and exclusive means of resolving their disputes culminating in the arbitration
process. Having exercised their right to participate in arbitration, LFUCG
contended that Lowe and FOP had exhausted their exclusive remedy and that the
circuit court lacked authority to consider the claims asserted. Lowe and FOP
denied that the parties’ collective bargaining agreement foreclosed their access to
the courts. They argued that its terms merely required exhaustion of their
contractual remedies before either party could seek judicial relief.
By its order entered December 14, 2018, the circuit court denied the
motion to dismiss. LFUCG answered the complaint and denied liability. The
circuit court denied a subsequent motion filed by LFUCG to hold the matter in
abeyance.
On September 3, 2019, Lowe and FOP filed a motion for summary
judgment. They argued that LFUCG had breached the unambiguous terms of the
parties’ 2012 collective bargaining agreement when it placed Lowe on leave
without pay. They contended that the only provision of the 2012 agreement related
to a member’s suspension from pay distinguished a suspension from pay from a
-8- suspension from law enforcement power and reserved to LFUCG only the right to
suspend a member’s law enforcement powers during the course of an investigation.
The more recently negotiated collective bargaining agreement of 2015 specifically
authorized LFUCG to place a member charged with a crime on a leave of absence
without pay. However, the 2012 contract governing Lowe’s leave of June 2014
plainly did not. Lowe and FOP contended that Lowe was entitled to recover the
value of his wages and benefits due between June 5, 2014, and October 26, 2017,
as a matter of law.
Lowe and FOP also argued that LFUCG violated the provisions of the
collective bargaining agreement by dismissing Lowe without notice of the
proposed discipline. Pursuant to Article 14, Section 4 of the 2015 collective
bargaining agreement, “[d]isciplinary actions of suspension or dismissal shall be
initiated by the delivery of proposed disciplinary action to a member.” Lowe and
the FOP contend that Lowe’s due process rights under the agreement were not
triggered by Director Haney’s summary dismissal of October 26, 2017. Because
the lack of notice and summary dismissal directly violated the terms of the parties’
agreement, Lowe and FOP argued that Lowe was entitled to reinstatement and an
award of backpay and benefits from October 26, 2017.
Additionally, Lowe and FOP contended that LFUCG breached the
terms of the collective bargaining agreement by failing to conduct a disciplinary
-9- hearing before Lowe was dismissed on October 26, 2017. They cited Article 14,
Section 4 of the 2015 collective bargaining agreement, which provides in
mandatory language that the director “shall meet with the member, and if
requested, a Lodge representative” where “the member shall be advised of the level
of discipline proposed to be issued.” The member and/or the Lodge representative
“shall be given the opportunity to present the member’s side of the matter and any
materials relating to the violation he wants the Director to consider prior to issuing
discipline.” Lowe recounted that neither he nor the FOP was aware of Lowe’s
dismissal until eight days after Director Haney executed the termination notice
and personnel action request. Lowe was not provided an opportunity to explain the
circumstances of his arrest nor the basis of his Alford plea before he was dismissed.
He was not afforded an opportunity to present favorable evidence -- including the
results of two polygraph examinations. Lowe and FOP argued that Lowe was
entitled to judgment as a matter of law to include his reinstatement and an award of
backpay and benefits since October 26, 2017, on this basis as well.
Next, Lowe and FOP argued that LFUCG dismissed Lowe without
just cause in violation of industrial due process principles. They argued that the
internal affairs division did not conduct an adequate investigation and that the
report was not available for review by Director Haney for more than ten days
following his decision to dismiss Lowe.
-10- Finally, Lowe and FOP contended that LFUCG failed to reimburse
Lowe for accrued vacation, holiday, and sick leave. They argued that Lowe was
entitled to recover these benefits as a matter of law.
LFUCG filed a response and a competing motion for summary
judgment on September 27, 2019. LFUCG again argued that the exclusive remedy
for the violation of any of the terms of the parties’ collective bargaining agreement
is the grievance procedure outlined in the contract. It asserted that despite the non-
binding nature of the arbitration proceedings, the proceedings had provided Lowe
with all the process required by the terms of the agreement and that the court
lacked authority to entertain his complaint. LFUCG argued that it was entitled to
judgment as a matter of law upon this basis.
LFUCG also argued that the grievance was not timely initiated.
LFUCG explained that the terms of the parties’ collective bargaining agreement
provided that grievances “shall, within ten (10) days of the grieved event, be
presented to the Bureau Manager (Major).” It noted that Lowe had been
suspended without pay on June 5, 2014, but he failed to file a grievance until
November 9, 2017 -- years after the deadline had passed. With respect to the
agreement’s provision concerning a mandatory meeting with the director prior to
the imposition of a disciplinary measure, LFUCG argued that if a member fails to
attend the meeting, “discipline shall be issued and shall be final” pursuant to the
-11- provisions of the collective bargaining agreement. LFUCG cited the written notice
from counsel for LFUCG dated June 10, 2014, which reiterated that Lowe would
remain on administrative leave without pay until the criminal charges were
resolved and that he would be dismissed if convicted. LFUGG claimed that that
notice constituted a final decision and that the time for Lowe to file a grievance
with respect to his dismissal expired on June 21, 2014. Referring again to the
arbitration decision rendered on August 31, 2018, LFUCG argued that the
arbitrator’s conclusion that the grievance was untimely was entitled to deference.
Additionally, LFUCG argued that it was entitled to judgment because
it had complied with each of the relevant provisions of the collective bargaining
agreement. It contended that Major Kammer’s memorandum of June 5, 2014,
indicating that Lowe was being placed immediately on unpaid leave and
recommending Lowe’s dismissal, constituted the delivery of proposed discipline
required by the terms of the parties’ collective bargaining agreement. It argued
that the responsibility for the failure of the director to host a meeting after delivery
of the proposed discipline as mandated by the agreement “falls squarely on
[Lowe].” It claimed that Lowe’s misdemeanor convictions established just cause
for his dismissal.
Finally, LFUCG contended that Lowe had received all the
compensation to which he was entitled. It argued that Lowe was not entitled to
-12- accumulate sick or vacation time under the provisions of the employee handbook
because his leave without pay had lasted for more than one month. It also argued
that the arrears that had accumulated with respect to his contribution toward
medical, dental, and vision benefits exceeded the value of the sick and vacation
leave that he had accumulated prior to his dismissal.
Lowe and FOP filed a timely reply in support of their motion for
summary judgment. They denied that the court lacked authority to entertain the
action. They argued that the grievance filed on November 9, 2017, was timely
because it was filed within seven (7) days of the grieved event. They argued that
the grievance also timely challenged Lowe’s dismissal of November 3, 2017.
They cited deposition testimony of Director Haney admitting that the grievance
had been timely filed. Lowe and FOP challenged LFUCG’s assertion that the
burden of scheduling a discipline hearing before he was dismissed on October 26,
2017, fell to Lowe. They also rejected LFUCG’s reliance upon the provisions of
the employee handbook because the handbook referred only to voluntary
administrative leave, predated the collective bargaining agreement, and was
superseded by it. Lowe and FOP denied that LFUCG could collect the alleged
arrearages connected with his healthcare benefits because it had failed to file a
counterclaim.
-13- In an opinion and order entered on November 21, 2019, the Fayette
Circuit Court determined that the lawsuit had been filed pursuant to the provisions
of KRS1 67A.6908 authorizing legal actions for violation of agreements between
an urban-county government and a labor organization representing corrections
personnel to be brought by the parties to the agreement in circuit court. It
concluded that the terms of the parties’ 2012 collective bargaining agreement did
not contemplate the imposition of leave without pay as a disciplinary measure and
that LFUCG breached the agreement by placing Lowe on administrative leave
without pay from June 5, 2014, through October 26, 2017. It also concluded that
LFUCG failed to provide Lowe with an adequate opportunity to present his side of
the matter before he was dismissed on October 26, 2017, in contravention of the
doctrine of industrial due process. The court gave an excellent summary of the
pertinent labor law as follows:
Under Article 14, Section 1 of the 2015 [collective bargaining agreement] “LFUCG has a right to discipline members only for just cause.” Just cause is a legal term of art that has a unique meaning in the labor relations context. Griffith v. Fed. Labor Relations Auth., 842 F2d 487, 498 (D.C. Cir. 1988). Just cause requires that certain procedural due process requirements are met. See F. Elkouri & E. Elkouri, How Arbitration Works, 967-68 (6th ed. 2003). This has developed into a doctrine of industrial due process which requires management[:] (1) give the employee “adequate opportunity to present his or her side of the case before being discharged,” and (2)
1 Kentucky Revised Statutes.
-14- “conduct a reasonable inquiry or investigation before asserting punishment.” Id. at 967, 969.
Order Granting Summary Judgment, p.4. (Page 1037 of the record.)
The court granted summary judgment in favor of Lowe and FOP and
awarded Lowe the value of his wages and benefits between June 5, 2014, and
October 26, 2017, as well as backpay and the value of his benefits since October
26, 2017. This appeal followed.
On appeal, LFUCG argues that the Fayette Circuit Court erred by
failing to grant its motion to dismiss and by granting summary judgment in favor
of FOP and Lowe. It presents four arguments. First, it contends that Lowe has no
recourse to the courts because his employment with LFUCG is governed by the
parties’ collective bargaining agreement, which provides that his sole remedy for
an alleged breach of his contractual rights is the grievance procedure set out in the
agreement. Second, LFUCG argues that the circuit court erred by concluding that
Lowe was not afforded an opportunity to present his side of the matter as mandated
by the terms of the parties’ collective bargaining agreement. Third, LFUCG also
contends that the circuit court erred by failing to address the timeliness of the
grievance as it related to its decision to place Lowe on leave without pay. Fourth,
LFUCG argues that the court erred by concluding that Lowe was entitled to
damages. We shall address the issues in the order in which they were presented.
-15- LFUCG argues first that the circuit court was without authority to
entertain an action based on the alleged breach of the terms of the parties’
collective bargaining agreement. We disagree.
Circuit courts exist by virtue of Section 109 of the Constitution of
Kentucky, and they are vested with general jurisdiction. Section 112(5) of the
Kentucky Constitution grants circuit courts “original jurisdiction of all justiciable
causes not vested in some other court.” See also KRS 23A.010 and Gordon v.
NKC Hosps., Inc., 887 S.W.2d 360 (Ky. 1994). The action filed by Lowe and FOP
involves an ordinary claim for breach of contract to be heard in the circuit court.
However, LFUCG submits that the claims of Lowe and FOP are to be evaluated
exclusively under the grievance procedure provisions of the collective bargaining
agreements. Thus, LFUCG appears to mount a challenge to the particular-case
jurisdiction of the circuit court.
LFUCG concedes that procedures related to the discipline of a
member are specifically outlined by the provisions of the agreements, including
notice of any proposed discipline; an opportunity to meet with the director of
human resources prior to a discipline decision; the ability to file a grievance based
upon the disciplinary decision; and the option of submitting the dispute to non-
binding arbitration. However, it highlights language included in the collective
bargaining agreement indicating that “[a]ny dispute concerning the interpretation
-16- or application of an express provision of this agreement shall be subject
exclusively to this grievance procedure”; and that “[t]he procedure contained in
this article is the sole and exclusive means of resolving all disciplinary actions
and/or grievances arising under this Collective Bargaining Agreement”; and that
“[t]he grievance and arbitration provision shall be the sole remedy for all
grievances which are qualified subject matter for arbitration.” It contends that
provisions of the agreements relating to disciplinary disputes afford members
procedural due process and that the agreements’ exclusivity language forecloses
Lowe’s access to the courts following a non-binding arbitration decision. It cites
our decision in River City Fraternal Order of Police Lodge 614, Inc., v.
Louisville/Jefferson County Metropolitan Government, 585 S.W.3d 258 (Ky. App.
2019), in support of its position.
The facts recited in River City indicate that Officer Kristin Shaw was
dismissed following her off-duty physical altercation with another law enforcement
officer. Shaw challenged her dismissal. In a separate proceeding, FOP challenged
the government’s dismissal procedure, arguing that it had breached provisions of
the parties’ collective bargaining agreement. The agreement provided, in relevant
part, that “[a]ny controversy between Metro Government and [FOP] concerning
the meaning and application of any provisions of this Agreement shall be adjusted
in the manner set out below.” It continued as follows: “The [FOP] or any Member
-17- may file a grievance and shall be afforded the full protection of this agreement[.]”
River City, 585 S.W.3d at 263 (emphasis omitted).
FOP submitted its breach-of-contract claims against the government
to “advisory arbitration” as permitted by the agreement’s provisions. The parties
selected an arbitrator and an evidentiary hearing was conducted. The arbitrator
was asked to evaluate the government’s decision to present a chart of Shaw’s entire
disciplinary history to the chief of police before she was dismissed and to the
Louisville Metro Police Merit Board before it concluded its review of the
dismissal.
Following the hearing, the arbitrator concluded that the government
had breached provisions of the collective bargaining agreement by presenting
Shaw’s entire disciplinary record to the decision-makers. The arbitrator stated that
a review of Shaw’s entire disciplinary record included a review of stale
disciplinary action. He indicated that such a review may have tainted the decision
to dismiss her. In his opinion, the arbitrator proposed that the government should
stop providing stale disciplinary information to the chief of police and to the merit
board in future proceedings. He also stated that “consideration for mitigating this
discharge to the lesser penalty of suspension would be appropriate.” Id. In
deference to the opinion of the arbitrator, the government did consider reducing
-18- Shaw’s termination to suspension -- but decided against it. FOP then filed an
action in Jefferson Circuit Court.
In circuit court, the government moved to dismiss, arguing that the
court lacked jurisdiction to consider Shaw’s termination because the disciplinary
action was being considered in a separate proceeding in a different division of
circuit court pursuant to an express provision in the collective bargaining
agreement. The Jefferson Circuit Court concluded that the government had
complied with the arbitrator’s suggestions and that the terms of the parties’
collective bargaining agreement gave the merit board sole authority to resolve all
disciplinary disputes between FOP members and the government. It dismissed the
complaint.
On appeal, we considered the merits of the dispute. We rejected
FOP’s argument that the circuit court was bound to accept the decision of the
arbitrator because to do so would, in effect, convert advisory arbitration to binding
arbitration in contravention of the terms of the parties’ collective bargaining
agreement. We held that an appeal to circuit court “must be more than the rubber
stamp of an ‘advisory arbitration opinion and award[,]’” and we affirmed the
decision of the circuit court. 585 S.W.3d at 267.
LFUCG argues that the “River City [collective bargaining agreement]
contains nearly identical language making advisory arbitration the exclusive
-19- remedy for a contract violation as the [agreement] in contention here.” It contends
that our decision in River City stands for the proposition that FOP may agree to an
advisory arbitration process that would thereby deprive the courts of authority to
entertain a civil action aimed at reviewing the process, prospectively foreclosing a
member’s access to the courts. That is clearly not the holding of River City. Nor is
it in harmony with Section 112(5) of the Constitution of Kentucky as noted earlier
in this opinion.
Our review in River City included a consideration of the matter on its
merits. We did not hold that the circuit court lacked particular-case jurisdiction or
that it was deprived of authority to entertain the breach-of-contract action based on
the parties’ agreement to submit their disputes to non-binding arbitration. The
circuit court’s conclusion that FOP was not entitled to a judicial remedy on the
merits did not mean that it was not entitled to seek one. Our decision did not
foreclose FOP’s right to pursue a remedy in the courts. Consequently, our holding
in that case is irrelevant to LFUCG’s claim on this point.
The parties’ collective bargaining agreements do provide variously:
that disputes concerning the interpretation or application of an express provision of
the agreement is subject exclusively to the grievance procedure; that the grievance
procedure is the exclusive means by which disciplinary disputes can be resolved;
and that the grievance and arbitration provisions are the exclusive remedy for all
-20- grievances. However, these provisions are generally construed as exhaustion-of-
administrative-remedies provisions and not as restrictions on a parties’ access to
the courts. See Jenkins v. South Bend Community School Corp., 982 N.E.2d 343
(Ind. Ct. App. 2013) (despite the “exclusive remedy” provision of the parties’
collective bargaining agreement, the advisory nature of the arbitrator’s award
allows the non-prevailing party to reject the award, triggering judicial review);
Shorey v. Jefferson County School Dist. No. R-1, 807 P.2d 1181 (Colo. Ct. App.
1990), aff’d, 826 P.2d 830 (Colo. 1992) (a collective bargaining agreement
containing a grievance procedure which provides for advisory arbitration cannot be
interpreted so as to limit a grievant to advisory arbitration as her exclusive
remedy).
Moreover, the provisions of KRS 67A.6908(3) declare expressly that
an action for breach of agreements between an urban-county government and a
labor organization representing corrections personnel may be brought by the
parties to the agreements in circuit court. Article 2 of the parties’ 2015 collective
bargaining agreement provides that the agreement “is subject and subordinate to all
applicable statutes . . . .”
Finally, we are not at all persuaded that the grievance provisions of
the collective bargaining agreements between FOP and LFUCG constitute a
specific and unambiguous waiver of Lowe’s individual right to a judicial forum.
-21- Section 14 of the Constitution of Kentucky provides that “[a]ll courts shall be
open, and every person for an injury done him in his lands, goods, person or
reputation, shall have remedy by due course of law, and right and justice
administered without sale, denial or delay.” Lowe’s right to seek a judicial remedy
unambiguously exists separately and apart from the grievance procedure outlined
by the parties’ collective bargaining agreements. Lowe filed a civil action in
circuit court pursuant to his individual, constitutional right to do so. FOP’s act of
executing the collective bargaining agreements did not preclude Lowe from
exercising his right of access to our courts. Furthermore, the terms of the parties’
agreements expressly confine the right to pursue non-binding arbitration to FOP.
Lowe was not authorized by the terms of the collective bargaining agreements to
seek arbitration. For these reasons, the “exclusive remedy” provisions in the
parties’ collective bargaining agreements could in no way limit Lowe’s ability to
seek judicial relief.
We conclude that the “exclusive remedy” provisions of the parties’
agreements did not divest Lowe of his individual right to file a civil action, nor did
it deprive the court of particular-case jurisdiction or authority to entertain the
action. Therefore, the Fayette Circuit Court did not err by denying LFUCG’s
motion to dismiss the action.
-22- For its second argument, LFUCG contends that the circuit court erred
by concluding that Lowe was not afforded an adequate opportunity to present his
side of the matter as required by the provisions of the parties’ collective bargaining
agreements. Our rules of practice are clear. CR2 76.03(4) mandates that an
appellant “shall file. . . a prehearing statement” that identifies “issues proposed to
be raised on appeal . . . .” CR 76.03(8) provides that “[a] party shall be limited on
appeal to issues in the prehearing statement except that when good cause is shown
the appellate court may permit additional issues to be submitted upon timely
motion.” We may not consider arguments presented to challenge a trial court’s
judgment where they have not been raised in the prehearing statement or on
motion. See Sallee v. Sallee, 142 S.W.3d 697 (Ky. App. 2004).
The prehearing statement filed by LFUCG identifies the issues
proposed to be raised on appeal as follows:
LFUCG contends that the grievance was untimely and that the “exclusive remedy” language, found throughout the collective bargaining agreement, bars suit is [sic] this matter. As such, LFUCG was entitled to summary judgment. Furthermore, the appellant [sic] has received all monies owed to him by LFUCG.
This issue contested the circuit court’s conclusion that Lowe was not afforded the
opportunity to present his side of the matter as mandated by the parties’ agreement.
2 Kentucky Rules of Civil Procedure.
-23- However, this issue was not raised either in the prehearing statement or by timely
motion seeking permission to submit the issue for good cause shown. CR
76.03(8). Therefore, this specific issue is not properly before the Court for our
review. We are precluded from reviewing it. Sallee, supra.
In its third argument, LFUCG contends that the circuit court erred by
granting summary judgment in favor of Lowe and FOP because Lowe failed to file
a timely grievance with respect to its decision to place him on leave without pay.
We disagree.
Summary judgment is proper where there exists no genuine issue of
material fact, and the movant is entitled to judgment as a matter of law. CR 56.03.
“[T]he construction and interpretation of a contract . . . are questions of law to be
decided by the court . . . .” Frear v. P.T.A. Industries, Inc., 103 S.W.3d 99, 105
(Ky. 2003) (citing First Commonwealth Bank of Prestonsburg v. West, 55 S.W.3d
829, 835 (Ky. App. 2000)).
There is no genuine issue with respect to the facts underlying the
parties’ dispute. LFUCG claims that its notice to Lowe on June 5, 2014, that he
was being placed immediately on leave without pay was proper. LFUCG cites to
provisions of the parties’ collective bargaining agreement that require that a
grievance be presented within ten (10) days of the grieved event. It argues that the
grievance filed by Lowe on November 9, 2017, came “well beyond the June 15,
-24- 2014 deadline.” Additionally, LFUCG argues that under the terms of the parties’
collective bargaining agreements, the decision to suspend Lowe without pay
“issued and [became] final” once he failed to attend a meeting with the director of
Community Corrections.
Relying on the opinion of the arbitrator that the grievance was
untimely, LFUCG also contends that the circuit court erred by failing to accord the
arbitrator’s decision substantial deference. However, this proposed issue was also
not identified in the prehearing statement filed by LFUCG nor by timely motion
seeking permission to submit the issue for good cause shown. CR 76.03(8).
Therefore, this issue is not properly before the Court for review. We decline to
consider this part of the argument further.
The parties agree that the terms of the 2012-2016 collective
bargaining agreement govern the disciplinary action taken against Lowe on June 5,
2014. Article 14, Section 2 of the agreement identifies four disciplinary measures:
oral warning, written reprimand, suspension, and dismissal. It does not mention
“leave without pay”; “administrative leave”; or “administrative leave without pay.”
Article 14, Section 4 provides that disciplinary actions of suspension
or dismissal shall be initiated by the delivery of proposed disciplinary action to a
member. Section 4 mandates that the director of Community Corrections, or his
designee, meet with the member and, if requested, with the FOP representative. At
-25- the meeting, the member must be advised again of the level of discipline proposed
to be issued. The member or his FOP representative must be afforded an
opportunity to present the member’s “side of the matter and any materials relating
to the violation he wants the Director to consider prior to issuing discipline.”
Article 14, Section 4 (emphasis added). Section 4 provides that in the event the
member fails to attend the meeting, “discipline shall be issued and shall be final.”
Id. Article 14, Section 5 requires that suspension or dismissal be issued by the
director. If the member cannot receive the discipline in person, Section 5 requires
that a written copy of the discipline be sent by certified mail to the member’s last
provided address. “The date postmarked shall be considered the date that the
discipline was received.” Article 14, Section 5(A). The agreement provides that
the grievance and arbitration procedure described in Article 11 may be invoked by
FOP “[u]pon receipt of the discipline by the member.” Id.
With respect to the imposition of suspension or dismissal, “the
grievance shall begin at the level of the Human Resources Director (Step 3 of the
Grievance procedure) and shall proceed as provided in Article 11.” Id. Step 3 of
the grievance procedure is identified in Section 2 of Article 11 of the parties’
agreement. It provides that where a settlement cannot be reached at the meeting
between the member and the director of Community Corrections, the FOP
representative or a legal representative “shall present the grievance in writing to
-26- the director of Human Resources” within ten (10) days from receipt of a written
response from the director of Community Corrections. Article 11, Section 2. The
director of Human Resources “shall make a determination in writing within thirty
(30) days.” Id. If the grievance is not presented within ten (10) days, “the appeal
to the Director of Human Resources shall be deemed waived.” Id. If the director
of Human Resources fails to render a decision in writing within thirty (30) days,
“the grievance shall be considered satisfied in favor of the grievant.” Id. Step 4
describes the process by which FOP may seek advisory arbitration. Id.
Article 11, Section 3 broadly provides that where a grievance is not
presented within the specified time limits, the grievance will be considered waived.
Article 11, Section 4 indicates that “the procedure contained in this article is the
sole and exclusive means of resolving all disciplinary actions and/or grievances
arising under this Collective Bargaining Agreement.”
It is clear from the sequence of LFUCG’s interactions with Lowe that
LFUCG failed to follow the procedures outlined by the terms of the parties’
collective agreement by which it could suspend Lowe. Nor did it follow the
procedures by which the dispute concerning his suspension could be resolved. The
memorandum provided to Lowe by Bureau Manager Kammer on June 5, 2014,
described his discipline as “leave without pay.” However, there exists no such
disciplinary measure under the terms of the parties’ 2012 - 2016 collective
-27- bargaining agreement. Moreover, a member’s suspension must be initiated by the
delivery of proposed disciplinary action. Kammer’s memorandum provides for
Lowe’s immediate suspension.
Kammer advised Lowe in the memorandum that Lowe could make a
request -- within 24 hours -- for a meeting with the director. However, the terms of
the parties’ collective bargaining agreement mandate that the director of
Community Corrections conduct a meeting with the member during which the
member must be advised again of the level of discipline proposed to be issued and
that the member must be afforded an opportunity to present a defense and any
materials relating to the violation he wants the director to consider prior to issuing
discipline.
The terms of the parties’ collective bargaining agreement do not put
the burden on the member to schedule a meeting with the director. Moreover, the
required meeting must be conducted to discuss the proposed discipline -- not
discipline that has already been imposed upon the member. Finally, terms of the
parties’ agreement require that suspension or dismissal be issued by the director
and delivered to the member in a specifically prescribed manner. The
correspondence of June 10, 2014, from LFUCG’s counsel, written in response to
correspondence from Lowe’s counsel, wholly fails to comply with these
requirements.
-28- LFUCG’s failure to observe the procedures that it was obligated to
follow prior to placing Lowe on leave without pay made it impossible for FOP or
Lowe to initiate the grievance procedure set forth in the parties’ collective
bargaining agreement. Where a settlement cannot be reached during the meeting
between the member and the director of Community Corrections, FOP or a
member’s legal representative is required by the terms of the parties’ agreement to
present a grievance in writing to the director of human resources. The written
grievance must be submitted within ten (10) days from the receipt of a written
response from the director of Community Corrections. The director of Community
Corrections did not conduct the required meeting with Lowe. Consequently, Lowe
never received the director’s written response to any discussion. He lacked a
writing that would trigger the grievance procedure.
It was not until November 14, 2017, when LFUCG’s director of
human resources corresponded with Lowe’s counsel, that the grievance procedure
began to track or reflect the mechanism that the parties had agreed was “the sole
and exclusive means of resolving all disciplinary actions and/or grievances arising
under this Collective Bargaining Agreement.” In his correspondence, Director
Maxwell explained to counsel that LFUCG acted properly when it placed Lowe on
leave without pay on June 5, 2014. Finally, with this written decision at long last
-29- provided, Lowe was in position to request that the issues be submitted to advisory
arbitration. He did so in timely fashion.
There were no genuine issues of material fact, and the Fayette Circuit
Court did not err by concluding as a matter of law that Lowe and FOP complied
with the provisions of the grievance procedure and that LFUCG breached the
unambiguous terms of the collective bargaining agreement. Consequently, Lowe
and FOP were entitled to judgment as a matter of law.
In its fourth and final argument, LFUCG argues that the court erred by
concluding that Lowe was entitled to damages. It reasserts its contentions that the
circuit court was without jurisdiction to entertain the civil action and that it did not
breach the terms of the parties’ collective bargaining agreements. However, we
have rejected those arguments.
In the alternative, LFUCG argues that Lowe was not entitled to
damages because he was dismissed for just cause. Taking into account the relevant
additions to the parties’ collective bargaining agreement, we assume that LFUCG
could now impose leave without pay and dismissal upon a member’s arrest on
felony sex abuse charges. However, those changes have no bearing upon this
matter. Furthermore, the obligation of LFUCG to conform its disciplinary
procedures to the provisions of its agreement with FOP is not eliminated because
of the heinous nature of a member’s alleged conduct.
-30- Having concluded that LFUCG breached the parties’ agreements, the
trial court did not err by awarding contract damages. Contract damages
compensate an injured party. In Kentucky, the general “measure of damages for
breach of contract is ‘that sum which will put the injured party into the same
position he would have been in had the contract been performed.’” Hogan v. Long,
922 S.W.2d 368, 371 (Ky. 1995) (quoting Perkins Motors, Inc. v. Autotruck
Federal Credit Union, 607 S.W.2d 429, 430 (Ky. App. 1980)). Lowe proved his
damages with reasonable certainty. See Pauline’s Chicken Villa, Inc. v. KFC
Corp., 701 S.W.2d 399 (Ky. 1985). There was no error.
We AFFIRM the judgment of the Fayette Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:
J. Todd Henning Scott A. Crosbie Lexington, Kentucky Lexington, Kentucky
Nicholas A. Oleson Lexington, Kentucky
-31-