RENDERED: APRIL 15, 2022; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0136-MR
STEPHANIE GWALTNEY APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE THOMAS D. WINGATE, JUDGE ACTION NO. 19-CI-01014
COMMONWEALTH OF KENTUCKY, BOARD OF SOCIAL WORK APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, GOODWINE, AND LAMBERT, JUDGES.
CALDWELL, JUDGE: Stephanie Gwaltney appeals from a Franklin Circuit Court
judgment denying her request for a declaratory judgment. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Stephanie Gwaltney (“Gwaltney”) is a licensed clinical social worker.
In September 2019, the Kentucky Board of Social Work (“the Board”) filed an administrative complaint against Gwaltney. The Board alleged that, in September
2017, it received a written complaint alleging misconduct by Gwaltney.
The administrative complaint stated a case manager reported receiving
a phone call from a former client (“Client”) about Gwaltney. Undisputedly,
Gwaltney had been Client’s counselor for a time when he was at NeuroRestorative
– a program which provided services to brain-injured individuals in a residential
setting.
According to the administrative complaint, Client told the case
manager he had been “involved since 2014” with Gwaltney. Client also claimed
that Gwaltney made sexual advances towards him, and that the two of them had
been involved romantically and sexually since that time up until September 2017
when they ended the relationship. The administrative complaint noted that Client
stated he felt that he was in a vulnerable position and had been taken advantage of
by Gwaltney.
The administrative complaint stated that Gwaltney was informed of
the complaint against her in September 2017. It also recounted that Gwaltney
acknowledged having worked at NeuroRestorative, including providing counseling
to Client, who had arrived at a NeuroRestorative home in 2013.
According to the administrative complaint, Gwaltney had also
responded to the allegations by stating that:
-2- at her request, [Client] was reassigned to another counselor in mid-2014; that [Client] left NeuroRestorative in October 2014, that in late 2014, [Gwaltney] and Client began a personal relationship; that [Client’s] family was friendly with her and aware of the relationship; and that [Gwaltney] and [Client] continued to maintain a personal relationship until September 2017, when they broke up.
(Record (“R.”), p. 9.)
The administrative complaint asserted that based on the factual
allegations therein, Gwaltney had entered into a romantic and sexual relationship
with a client, thus violating KRS1 335.150(1)(g) and (6) and 201 KAR2 23:080,
Sections 1, 2, 3, and 11. It further stated if she was found to have committed the
alleged actions by a preponderance of the evidence following an evidentiary
hearing, that the Board may impose a disciplinary sanction authorized by KRS
335.150.
Shortly after the administrative complaint was filed, Gwaltney filed a
complaint for declaratory judgment in Franklin Circuit Court. Gwaltney requested
therein a declaration that Sections 1, 2, 3, and 11 of 201 KAR 23:080 were invalid
and unenforceable because they exceeded the scope of KRS 335.150(1)(g) and (6).
She argued the Board had exceeded the scope of its regulatory authority in
1 Kentucky Revised Statutes. 2 Kentucky Administrative Regulations.
-3- promulgating regulations “because the statute only prohibits personal or sexual
relationships between social workers and clients occurring during care, or while
the professional relationship continues to exist between the social worker and
client.” (R., p. 5.) Gwaltney also requested a declaration that 201 KAR 23:080
violated Kentucky’s Constitution because it prohibited personal or sexual
relationships between social workers and former clients in violation of “the right to
engage in such relationships . . . .” (R., p. 6.)3
The Board filed a motion to dismiss the complaint for declaratory
judgment, arguing the complaint failed to state a claim upon which relief can be
granted. The Board asserted it was unclear whether Gwaltney’s complaint alleged
a facial challenge to the regulation’s constitutionality or an as-applied challenge or
both. Nonetheless, the Board argued the trial court action should be dismissed, on
two bases: 1) failure to exhaust administrative remedies or 2) the challenged
sections of 201 KAR 23:080 being constitutional and otherwise valid.
3 Gwaltney provided notice to the Attorney General of her challenge to the constitutionality of the provisions in 201 KAR 23:080 at issue – both when she filed her complaint in circuit court and when she filed her notice of appeal from the trial court’s judgment. See KRS 418.075. Nonetheless, nothing was filed by the Attorney General in the trial court action or in this appeal.
Gwaltney argued in her appellant brief and in a brief to the trial court that the challenged portions of 201 KAR 23:080 violated Sections 27 and 28 of the Kentucky Constitution, although her complaint for declaratory judgment did not specify which provisions of the Kentucky Constitution were allegedly violated.
-4- Following further briefing and a hearing, the trial court denied the
Board’s motion to dismiss by written order. The trial court rejected the Board’s
argument that the complaint should be dismissed for failure to exhaust
administrative remedies. The trial court concluded that Gwaltney could bring her
facial challenge to the regulation’s constitutionality, citing W.B. v. Commonwealth,
Cabinet for Health and Family Services, 388 S.W.3d 108, 113 (Ky. 2012). The
trial court stated: “As [Gwaltney] has brought a constitutional challenge to a
regulation that allegedly expands the Board’s power beyond the limits defined by
the enabling statute, [Gwaltney’s] declaratory judgment action is properly before
the Court.” (R., p. 91.)
After the trial court denied the motion to dismiss, the Board filed its
answer to the complaint. The Board again asserted that the regulation was valid
and enforceable. And the Board asserted that the relevant facts and allegations
were stated in the administrative complaint, which the Board attached to the
answer. The Board also disputed some factual allegations and averments in
Gwaltney’s complaint in its answer.
After the answer was filed, the parties also filed briefs with the trial
court regarding the request for a declaratory judgment. In early 2021, the trial
court entered an order denying the request for a declaratory judgment. The trial
court noted that Gwaltney received written notice of a scheduled administrative
-5- hearing before filing her petition for a declaratory judgment and that the
administrative hearing had been stayed pending resolution of the declaratory
judgment action.
The trial court ultimately declined to issue a declaratory judgment
because the matter “[was] not ripe for review until the conclusion of the
administrative proceeding because the present constitutional challenge could be
rendered moot by the end of the administrative proceeding.” (R., p. 180; order
denying declaratory judgment attached to appellant brief appendix, p. 4.) The trial
court noted our Supreme Court’s discussion of the prudential ripeness doctrine in
W.B., 388 S.W.3d 108. The trial court ultimately declined to address the
constitutional challenge:
This Court can clearly address the constitutional challenge raised by [Gwaltney], but although a factual record is may be [sic] unnecessary for the crux of [Gwaltney’s] challenge, the Court’s involvement may not be needed because [Gwaltney] may be successful before the administrative tribunal. W.B. instructs this Court to avoid constitutional challenges, if possible, until the time is right.
(R., p. 181-82; order denying declaratory judgment, pp. 5-6.) The trial court
directed the administrative hearing officer to continue with the administrative
proceeding and the order recited that it was final and appealable with no just cause
for delay.
-6- Gwaltney filed a timely appeal. Further facts will be provided as
necessary to resolve the issues raised in her appeal.4
ANALYSIS
Standards Governing Our Review
The trial court denied the request for a declaratory judgment without
conducting a bench trial or other evidentiary hearing or issuing findings of fact.
Thus, both parties argue that the trial court’s declining to issue a declaratory
judgment was based solely on its determination of legal – not factual – issues and
that a de novo standard of review is appropriate. See, e.g., Kirilenko v. Kirilenko,
505 S.W.3d 766, 768 (Ky. 2016) (“Since the issue here is a matter of law, our
standard of review is de novo.”).
4 The appellant brief does not contain a statement regarding if or how issues raised on appeal were preserved for appeal. See Kentucky Rules of Civil Procedure (“CR”) 76.12(4)(c)(v). Though it appears that issues raised on appeal were preserved by argument to the trial court based on our review of the record, we remind counsel of the importance of complying with the Civil Rules and we direct counsel’s attention to the brief checklists and appellate practice handbook available as resources on our Court website. https://kycourts.gov/Courts/Court-of- Appeals/Pages/default.aspx. (Last visited Feb. 4, 2022.)
Appellate courts may regard issues as unpreserved and thus review only for manifest injustice when an appellant fails to provide a preservation statement – unlike less serious failures to comply with other formatting rules. Ford v. Commonwealth, 628 S.W.3d 147, 155 (Ky. 2021). Though we elect not to review solely for manifest injustice here, counsel is advised to take greater care to comply with briefing rules in the future.
-7- While we agree that the trial court’s interpretation of legal authority is
subject to de novo review, the trial court’s refusal to issue a declaratory judgment
here also represents its exercise of discretion under KRS 418.065:
The court may refuse to exercise the power to declare rights, duties or other legal relations in any case where a decision under it would not terminate the uncertainty or controversy which gave rise to the action, or in any case where the declaration or construction is not necessary or proper at the time under all the circumstances.
(Emphasis added.)5
Because KRS 418.065 recognizes certain circumstances where a trial
court may, but is not required to, refuse to issue a declaratory judgment, good
arguments could also be made for reviewing the refusal to issue a declaratory
judgment under the abuse of discretion standard. See Mammoth Medical, Inc. v.
Bunnell, 265 S.W.3d 205, 209-10 (Ky. 2008) (recognizing court’s broad discretion
5 KRS 418.065 also contains provisions regarding appellate review:
The appellate court in its consideration of the case, shall not be confined to errors alleged or apparent in the record. When, in its opinion, further pleadings or proof is necessary to a final and correct decision of the matters involved, or that should be involved, it shall remand the case for that purpose; or if in its opinion the action is prematurely brought, or where a ruling in the appellate court is not considered necessary or proper at the time under all the circumstances, it may direct a dismissal without prejudice in the lower court.
-8- to grant declaratory relief, as well as discretion under KRS 418.065 to refuse to
grant declaratory relief under certain circumstances).
Whether reviewing de novo or for abuse of discretion, we discern no
reversible error in the trial court’s refusal to issue a declaratory judgment here.
Furthermore, to the extent that our reasoning differs from that expressed by the
trial court in its judgment, we have authority to affirm a trial court’s judgment
based on independent grounds supported by the record. “If an appellate court is
aware of a reason to affirm the lower court’s decision, it must do so, even if on
different grounds.” Mark D. Dean, P.S.C. v. Commonwealth Bank & Trust Co.,
434 S.W.3d 489, 496 (Ky. 2014). See also Commonwealth v. Mitchell, 610
S.W.3d 263, 271 (Ky. 2020) (“While reversal of a lower court is restricted, an
appeals court may affirm for any reason supported by the record, and the appellee
may present alternative reasons justifying the decision of the trial judge.”).
Regulatory Provisions and Statutes at Issue
The portions of 201 KAR 23:080 (entitled Ethical Code of Conduct)
challenged by Gwaltney are identified in bold type:
Section 1. Definitions.
(1) “Client” means:
(a) An individual, family, or group who directly receives social work services from a social worker;
-9- ... (2) A person identified as a client pursuant to subsection (1) of this definition shall be deemed to continue to be a client for a period of five (5) years following the last date of service rendered to the person.
(3) “Dual relationship” means a social, business, or personal relationship between a social worker and a client that coexists with the professional-client relationship between the social worker and the client.
Section 2. Client Relationships. . . .
(3) A client who directly receives the social work service shall be deemed to continue to be a client for a period of five (5) years following the last date of service actually rendered.
Section 3. Responsibility to Clients.
(1) A social worker shall promote the well-being of a client and, if required by law, the safety and well- being of an individual whose life might be affected by the client’s behavior or circumstance.
Section 11. Dual Relationships.
(1) A social worker shall not enter into a dual relationship with a client if the relationship might:
(a) Impair the social worker’s professional judgment;
(b) Incur the risk of exploitation of the client; or
(c) Otherwise violate a provision of this administrative regulation.
(2) If a dual relationship cannot be avoided and if it does not impair the social worker’s professional judgment,
-10- incur a risk of exploitation of the client, or otherwise violate a provision of this administrative regulation, the social worker shall take appropriate professional precautions to ensure that judgment is not impaired and exploitation does not occur.
(3) A social worker shall not obtain or engage the service of a client if obtaining or engaging the service might:
(c) Otherwise violate a provision of this administrative regulation.
(4) A social worker shall not engage in sexual intimacy or contact with a client or former client.
(Emphasis added.)
Gwaltney argues that the statute which enabled the Board to
promulgate regulations such as 201 KAR 23:080 is KRS 335.150, providing in
pertinent part:
(1) The board may revoke, suspend, or refuse to issue or renew; impose probationary or supervisory conditions upon; impose an administrative fine; issue a written reprimand or admonishment; or any combination of actions regarding any applicant, license, or licensee upon proof that the applicant or licensee has:
....
(g) Violated the code of ethical conduct as set forth by the board by promulgation of an administrative regulation;
-11- ....
(6) Upon proof substantiating that sexual contact occurred between a social worker licensed by the board and a client while the client was under the care of or in a professional relationship with the social worker, the social worker’s license may be revoked or suspended with mandatory treatment of the social worker as prescribed by the board. The board may require the social worker to pay a specified amount for mental health services for the client which are needed as a result of the sexual contact.
The Board argues that KRS 335.150(6) is not the enabling statute for
the Board’s promulgating 201 KAR 23:080. It argues that the main enabling
statute is KRS 335.070, recognizing the Board’s powers including issuing licenses
and administering discipline and specifically providing: “(3) The board may
promulgate administrative regulations pursuant to KRS Chapter 13A to carry out
the provisions of KRS 335.010 to 335.160 and KRS 335.990.” The Board further
contends: “KRS 335.070 and KRS 335.150[(1)](g), when read together, give the
board the ability to promulgate ethical regulations without any specified
restrictions.” (Appellee brief, p. 20.)
We agree to the extent that we construe KRS 335.070(3) and KRS
335.150(1)(g) together to enable the Board to promulgate regulations – including
one setting forth an ethical code of conduct. But we need not reach whether this
authority to promulgate regulations is subject to any specific restrictions to resolve
-12- the key issue on appeal – whether the trial court committed reversible error by
declining to issue a declaratory judgment before the administrative hearing
concluded.
No Reversible Error in Trial Court’s Refusal to Issue Declaratory Judgment
Gwaltney claims that the trial court erred in declining to issue a
declaratory judgment. She points out that the trial court had denied the motion to
dismiss based on W.B.’s holding that exhaustion of remedies was not required for
asserting a facial constitutional challenge. She cites authority in her appellant brief
arguing that exhaustion of remedies is not required before the trial court could
properly consider her constitutional challenge to the regulatory provisions.
The trial court expressed its awareness, however, that exhaustion of
remedies was not required for it to have authority to consider the facial
constitutional challenge in its order denying the motion to dismiss – and also,
though perhaps less clearly, in its order denying declaratory relief. But it denied
declaratory judgment for other grounds discussed in W.B., namely, the prudential
ripeness doctrine.
Gwaltney suggests it was inconsistent for the trial court to cite W.B. as
authority for refusing to issue a declaratory judgment based on prudential ripeness
concerns – after denying the motion to dismiss based on W.B.’s holding that
-13- exhaustion of administrative remedies was not required before considering a facial
constitutional challenge. We disagree.
Our Supreme Court recognized that even though failure to exhaust
administrative remedies did not bar a declaratory judgment action raising a facial
constitutional challenge, a court may sometimes properly delay resolution of such
constitutional issues “until a time closer to the actual occurrence of the disputed
event, when a better factual record might be available.” W.B., 388 S.W.3d at 113
(quoting Blanchette v. Connecticut General Ins. Corporations, 419 U.S. 102, 143-
44, 95 S. Ct. 335, 338, 42 L. Ed. 2d 320 (1974)).
Gwaltney contends that the trial court erred in failing to recognize an
important distinction between this case and W.B.; that W.B. concerned a
complicated administrative process for which a better factual record (i.e.,
administrative record) would aid the court in understanding the administrative
agency’s interpretation of its regulations. See id. Gwaltney characterizes her case,
however, as a simple direct facial challenge to a regulation which does not require
the examination of complex regulatory schemes or an agency’s nuanced
interpretation of its own regulations. As such, she argues her case should be
routinely held ripe under Goodwin v. City of Louisville, 309 Ky. 11, 215 S.W.2d
557 (1948) and St. Luke Hospitals, Inc. v. Commonwealth, Cabinet for Health and
Family Services, 254 S.W.3d 830 (Ky. App. 2008).
-14- But these cases cited by Gwaltney discuss how a declaratory action
should not be dismissed for failure to exhaust administrative remedies when a
facial constitutional challenge is raised. These cases do not discuss whether a
court might delay resolution of constitutional issues and decline to issue a
declaratory judgment at the present time under KRS 418.065 or the prudential
ripeness doctrine – despite the court’s having authority to rule on such issues.
Gwaltney points out that because administrative agencies cannot
determine constitutionality, it is futile to raise the issue of constitutionality in
administrative proceedings. See St. Luke, 254 S.W.3d at 833 (citing
Commonwealth v. DLX, Inc., 42 S.W.3d 624, 626 (Ky. 2001)) (“Despite the
Cabinet’s argument to the contrary, it is apparent that St. Luke challenges the facial
constitutionality of the regulation. Consequently, it would have been futile for St.
Luke to participate in the administrative process.”). Arguing that there is no
necessity here for an administrative record to clarify the agency’s interpretation of
its own regulation or other legal issues, Gwaltney asserts the issue before the trial
court was simple: “whether the Board’s expansive definition of ‘client,’ and
prohibition against intimate relationships between social workers and former
clients exceeds its authority under its enabling statute.” (Appellant brief, p. 9.)
And she points to the trial court’s seeming admissions that it had authority to
-15- address the constitutional issue and that a factual record might not be strictly
necessary to opine on the facial challenge in its order:
This Court can clearly address the constitutional challenge raised by [Gwaltney], but although a factual record is may be [sic] unnecessary for the crux of [Gwaltney’s] challenge, the Court’s involvement may not be needed because [Gwaltney] may be successful before the administrative tribunal.
(R., pp. 181-82; order denying declaratory judgment, pp. 5-6.)
We construe this statement as the trial court’s recognizing that the
action was not barred for failure to exhaust administrative remedies yet still
declining to exercise its authority to rule on the constitutional challenge at the
present time – albeit based simply on the expressed reason that Gwaltney might
prevail at the administrative hearing. The mere possibility of Gwaltney’s
prevailing in the administrative proceeding may not seem sufficient, standing
alone, to decline to issue a declaratory judgment on her constitutional challenge
considering the prudential ripeness discussion in W.B.6 But the trial court is not off
base in stating: “W.B. instructs this Court to avoid constitutional challenges, if
6 The trial court interpreted W.B. to instruct courts to hold off on ruling on constitutional challenges until the time is right, citing W.B., 388 S.W.3d at 117 – where the Supreme Court listed four “prudential factors weighing against consideration of the case until the conclusion of the administrative process” – one of which was the possibility the appellant might prevail in the administrative hearing.
-16- possible, until the time is right.” (R., p. 182; order denying declaratory judgment,
p. 6.) See W.B., 388 S.W.3d at 113:
there are situations where, even though an allegedly injurious event is certain to occur, the Court may delay resolution of constitutional questions until a time closer to the actual occurrence of the disputed event, when a better factual record might be available. Further, to the extent that questions of ripeness involve the exercise of judicial restraint from unnecessary decision of constitutional issues, the Court must determine whether to exercise that restraint and cannot be bound by the wishes of the parties.
(Internal quotation marks and citations omitted.)7
As recognized by our Supreme Court in W.B., “KRS 418.065 clearly
anticipates that there will be occasions when it will not be best to address the
controversy at the time of the petition, and so authorizes the courts to defer
consideration until the circumstances are more favorable for a resolution of the
issue presented[.]” Id. at 112. See also Mammoth Medical, 265 S.W.3d at 210
(citing KRS 418.065).
Though perhaps for slightly different reasons than that expressed in
the trial court’s written order, we discern no reversible error in the trial court’s
conclusion that the time was not right to rule on the constitutional challenge here.
7 Our Supreme Court quoted from portions of the United States Supreme Court opinion in Blanchette, 419 U.S. 102, 95 S. Ct. 335. W.B., 388 S.W.3d at 113.
-17- The trial court could have reasonably concluded the time was not right to rule on
the constitutional challenge – not just because of any possibility that Gwaltney
might prevail in the administrative proceeding – but because resolution of the
administrative complaint might not depend on resolving the constitutionality of the
challenged regulatory provisions.
Despite Gwaltney’s insistence to the trial court and to this Court that
there was no dispute that her personal relationship with Client began after she
ceased providing professional services to him, the Board frequently disputed this
factual assertion based on our review of the record.8 The Board asserted in its
motion to dismiss that Gwaltney “did in fact engage in prohibited sexual intimacy
with a client, which began, not years later, but at most a few months after
providing services to the client in a clinical residential environment for traumatic
brain injury patients.” (R., p. 22; motion to dismiss p. 7.)
8 The introduction to the Board’s appellee brief states: “The issues herein are based in law, rather than in fact. . . .” (Appellee brief, p. i.) However, we construe this statement as recognizing that there were no factual findings issued by the trial court or the administrative hearing officer for us to review, rather than suggesting there were never any factual disputes.
The Board asserted in its brief that, despite Gwaltney’s assertion that no personal relationship began until after she ceased providing services to Client, “the complaint and investigation included information indicating that the relationship with the client began while he was still a patient at her facility and while she was providing him care.” (Appellee brief, p. 7.) And the Board argued that if that information was correct, the whole declaratory judgment argument was moot and there was no reason to address whether the challenged portions of 201 KAR 23:080 were constitutional or otherwise valid until a fact-finder could hear evidence and find when the relationship began.
-18- Gwaltney’s response argued that the aforementioned quote from page
7 of the motion to dismiss meant that the Board “acknowledges that this
relationship began after the professional relationship ended.” And she claimed
therein that the administrative complaint did not allege “a simultaneous
professional and romantic relationship.” (R., p. 39.)
In the Board’s reply to this response, the Board disputed Gwaltney’s
assertion that it had admitted that the personal relationship began after the
professional relationship ended. The Board also asserted therein that Gwaltney’s
vague timeline recollections created a need to resolve some fact issues through the
administrative fact-finding process and suggested that remand to the administrative
agency was in order if the court did not grant the motion to dismiss:
[Gwaltney] provides a vague timeline couched in murky language such as “mid 2014” and “late 2014” and then misstates in her response that the Board “acknowledges that this relationship began after the professional relationship ended.” This is false. The Board’s motion illustrates (in the absence of an evidentiary hearing) the impreciseness of [Gwaltney’s] fact-recall, yet closeness in proximity of time between her sexual relationship and counseling, is “at most” a few months. No concession occurred, but the language does effectively underscore the speculation and guesswork at play that could be resolved through the administrative hearing process.
This case is fact driven, and in the absence of outright dismissal, remand would serve to establish a comprehensive record for this Court’s later review and benefit.
-19- (R., p. 81) (footnotes omitted).
In paragraph 6 of its answer to the trial court complaint, the Board
denied the allegations in paragraph 6 of Gwaltney’s trial court complaint including
the allegation: “The relationship at issue did not occur while the individual was
under the care of, or in a personal relationship with [Gwaltney].” (R., p. 2.) In its
response to Gwaltney’s brief to the trial court, the Board indicated the existence of
a factual dispute about when exactly the personal relationship began. The Board
asserted that evidence would show “Gwaltney made many sexual advances toward
this client, multiple times, to the point of leaving the NeuroRestorative facility with
the client under the pretext of visiting a shopping mall, but instead taking the client
to her home.” (R., p. 129.) The Board argued: “Gwaltney’s carefully crafted
rendition of events wherein she requested reassignment in ‘mid-2014’ but did not
engage in a ‘personal relationship’ with this client until ‘late 2014’ simply did not
pass the smell test.” (R., p. 142.)
So, the Board requested that the trial court “hold this matter in
abeyance to allow the administrative process to proceed, which would produce
facts dispensing with the need for the Court to entertain Gwaltney’s novel
constitutional claim.” (R., p. 142.) In the alternative, the Board requested an
evidentiary hearing before the trial court to “dispense with the need to rule upon
Gwaltney’s constitutional challenge to existing Kentucky law.” (R., p. 142)
-20- (quoting Baker v. Fletcher, 204 S.W.3d 589, 597-98 (Ky. 2006)) (“the long-
standing practice of this Court is to refrain from reaching constitutional issues
when other, non-constitutional grounds can be relied upon.”).
In her reply brief to the trial court, Gwaltney contended that the Board
had not previously claimed “that the romantic relationship between Ms. Gwaltney
and the former patient began during their professional relationship” (R., p. 165),
and argued the “undisputed evidence” showed the two “were in a romantic
relationship some months after the professional relationship ended . . . .” (R., p.
166.) Gwaltney argued that the sole issue before the trial court was whether the
Board exceeded its authority by defining a client as anyone the social worker had
provided services to within the last five years and by providing for discipline of
“practitioners who engage in relationships with former clients.” (Id.)
The case was submitted for final adjudication to the trial court without
an evidentiary hearing, notwithstanding any factual disputes. The trial court
declined to issue the declaratory judgment and directed that the administrative
hearing process resume.
Based on our review of the record, resolution of the administrative
complaint against Gwaltney may not hinge on application of 1) the expansive
definition of client, including an individual who received services from the social
worker during the preceding five years, nor on 2) the prohibition against a social
-21- worker’s having an intimate relationship with a former client. Instead, depending
on the fact-finder’s findings after the presentation of evidence at an administrative
hearing, any discipline might not depend on either of the two provisions.
Possibly the administrative fact-finder might conclude that the
personal relationship began during the period in which Gwaltney was directly
providing services to Client, for example. See 201 KAR 23:080, Section 1(1)
(unchallenged definition of client as an individual directly receiving services from
a social worker). In that case, the challenged portions of 201 KAR 23:080 might
not even come into play in resolving the administrative complaint.
As the Board points out, if the fact-finder finds the relationship began
while Client was receiving services from Gwaltney, Gwaltney would not be
injured by application of the prohibition against intimate relationships with former
clients or the expansive definition of a client including one who received the social
worker’s professional services within the past five years. Instead, any discipline
would stem from the unchallenged prohibition against intimate relationships with
current clients (under the unchallenged definition of clients as those currently
receiving a social worker’s professional services).9
9 If on the other hand, any discipline imposed does stem from application of the prohibition against relationships with former clients or from application of the expansive definition of clients as including those who received services during the preceding five years, nothing in this Opinion should be taken to prevent Gwaltney from again challenging the constitutionality of these provisions.
-22- In short, the record before us indicates a factual dispute about when
Gwaltney’s relationship with Client began – which has not yet been resolved by a
fact-finder following an evidentiary hearing. The Board states its intention to
proceed with an administrative hearing even if we strike down the expansive
definition of client (including those who received services during the last five
years) – as the Board believes that evidence supports a finding that the romantic
relationship arose before Gwaltney’s rendition of professional services ended:
If the Court rules that the definition of “client” exceeds the bounds of the Board’s statutory mandate, the Board will still proceed with an administrative hearing based upon the fact that Ms. Gwaltney’s relationship occurred when the client was receiving services, and the parties may be right back before the Court on an “as applied” challenge.
(Appellee brief, p. 17.)10
Despite the Board’s characterization of “Ms. Gwaltney’s relationship
occur[ing] when the client was receiving services” as a “fact” and Gwaltney’s
insistence that the relationship at issue indisputably occurred after her professional
relationship with Client ceased, there is clearly a factual dispute on this matter.
We express no opinion on how this factual dispute should ultimately be resolved
10 See also Appellee brief, p. 11 (the Board was alleging the relationship began when Client was under Gwaltney’s care, so the Board would proceed with administrative hearing even if this Court determined that the Board could not validly define a client to include individuals who had received services within the last five years).
-23- but expect that the administrative fact-finder will approach the question with an
open, unbiased mind and make factual findings based solely on the evidence
presented. See KRS 13B.090(1) (“In an administrative hearing, findings of fact
shall be based exclusively on the evidence on the record.”).
Depending on the factual findings regarding when the relationship at
issue began, resolution of the administrative complaint may not depend on
application of the challenged regulatory provisions. And aforementioned
precedent expresses a preference against ruling on constitutional challenges unless
and until it is necessary. So, we conclude that the trial court did not commit
reversible error in declining to reach the constitutional challenge at the present
juncture—especially given its authority to decline to issue declaratory judgments
in some circumstances pursuant to KRS 418.065. Thus, we affirm.
In sum, we discern no reversible error in the trial court’s declining to
issue a declaratory judgment on the constitutional challenge for the reasons stated
herein. We express no opinion on the merits of the constitutional challenge or the
issue of whether the challenged portions of 201 KAR 23:080 exceed the agency’s
regulatory authority – though we generally recognize the Board’s authority to
promulgate regulations including one setting forth an ethical code of conduct.11
11 However, we express no opinion regarding whether specific provisions in the Ethical Code of Conduct in 201 KAR 23:080 otherwise exceed any constitutional, statutory, or other limitations on the Board’s powers.
-24- Furthermore, any other arguments raised in the briefs which are not discussed
herein have been determined to lack merit or relevancy to resolving this appeal.
CONCLUSION
For the reasons stated herein, we AFFIRM the trial court’s judgment.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Sean Ragland Nicole S. Bearse Colleen O. Davis Frankfort, Kentucky Louisville, Kentucky
-25-