Sherri Chappell v. Kentucky Transportation Cabinet ( 2021 )

RENDERED: SEPTEMBER 17, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0191-MR
SHERRI CHAPPELL APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 18-CI-00129
KENTUCKY TRANSPORTATION
CABINET; KENTUCKY PERSONNEL
BOARD; KENTUCKY PERSONNEL
CABINET; AND KENTUCKY
SECRETARY OF TRANSPORTATION,
FORMERLY GREG THOMAS, AS
APPOINTING AUTHORITY APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; GOODWINE AND McNEILL,
JUDGES.
GOODWINE, JUDGE: Sherri Chappell (“Chappell”) appeals the judgment of the
Franklin Circuit Court affirming the order of the Kentucky Personnel Board (the
“Board”). We affirm.
BACKGROUND
In 2013, Chappell was employed by the Kentucky Transportation
Cabinet (“KYTC”) as a Transportation Engineer II, a classified position, earning
$4,943.36 per month. That year, she resigned from her position to become an
Executive Director for KYTC, an unclassified position, earning $8,583.34 per
month. In 2016, she was asked to resign from her position as Executive Director
but was told she could return to her prior Transportation Engineer II position.
Chappell alleges KYTC agreed her salary would be $5,759.80 per month when she
returned to her prior job. However, before she resigned, she was informed by the
Kentucky Personnel Cabinet (the “Cabinet”) that her monthly salary would be
$4,707.96. Thereafter, she resigned as Executive Director and returned to her prior
position as Transportation Engineer II.
Chappell appealed the Cabinet’s decision regarding her salary to the
Board arguing she was entitled to $5,759.80 per month under 101 KAR1 2:034
Section 2(2)(b). Under the same regulation, the Cabinet argued it assigned
Chappell the correct salary.2 The Board affirmed the Cabinet’s interpretation of
1
Kentucky Administrative Regulations.
2
In its answer, KYTC admits an official advised Chappell that her salary would be $5,759.80 per
month when she returned to her position as Transportation Engineer II. Other than filing the
answer, KYTC did not participate in this matter below and has not filed a brief herein.
-2-
101 KAR 2:034 Section 2(2)(b). Upon Chappell’s appeal, the circuit court
affirmed the Board’s decision. This appeal followed.
NON-COMPLIANCE WITH CR3 76.12
Before reaching the merits of Chappell’s appeal, we must address the
serious deficiencies in her brief under CR 76.12(4)(c). Although Chappell is
proceeding pro se, she is not exempt from compliance with the civil rules. Koester
v. Koester, 569 S.W.3d 412, 415 (Ky. App. 2019).
First, an appellant’s brief must include a statement of the case
“consisting of a chronological summary of the facts and procedural events
necessary to an understanding of the issues presented by the appeal, with ample
references to the specific pages of the record, . . . supporting each of the statements
narrated in the summary.” CR 76.12(4)(c)(iv). “It is fundamental that it is an
[a]ppellant’s duty and obligation to provide citations to the record regarding the
location of the evidence and testimony upon which he relies to support his
position, and if an appellant fails to do so, we will accordingly not address it on the
merits.” Commonwealth v. Roth, 567 S.W.3d 591, 594 (Ky. 2019) (internal
quotation marks and citation omitted). Chappell’s brief is entirely devoid of
citations to the record in this matter.
3
Kentucky Rules of Civil Procedure.
-3-
Next, an appellant’s argument must include “ample supportive
references to the record and citations of authority pertinent to each issue of law[.]”
CR 76.12(4)(c)(v). “It is not our function as an appellate court to research and
construct a party’s legal arguments. . . . We will not search the record to construct
[the appellant’s] argument for [her], nor will we go on a fishing expedition to find
support for [her] underdeveloped arguments.” Prescott v. Commonwealth, 572
S.W.3d 913, 923 (Ky. App. 2019). Chappell only sparsely cites to relevant
authority and again fails to cite to the record in support of her argument.
Furthermore, an appellant’s brief must, at the beginning of each
argument, include “a statement with reference to the record showing whether the
issue was properly preserved for review and, if so, in what manner.” CR
76.12(4)(c)(v). Preservation statements ensure “the reviewing Court[] can be
confident the issue was properly presented to the trial court and therefore, is
appropriate for our consideration.” Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky.
App. 2012). Chappell’s argument contains no preservation statements.
“Compliance with CR 76.12 is mandatory.” Bewley v. Heady, 610
S.W.3d 352, 355 (Ky. App. 2020) (citation omitted). We would be within our
discretion to dismiss Chappell’s appeal for her failure to comply with the civil
rules. Koester, 569 S.W.3d at 415. However, we will instead review the issues
-4-
raised by Chappell for manifest injustice only.4 Hallis v. Hallis, 328 S.W.3d 694,
696 (Ky. App. 2010).
STANDARD OF REVIEW
On review for manifest injustice, “the required showing is probability
of a different result or error so fundamental as to threaten a [party’s] entitlement to
due process of law.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006).
ANALYSIS
On appeal, Chappell makes the following arguments: (1) the circuit
court applied the incorrect standard of review in its judgment; (2) the circuit court
incorrectly interpreted 101 KAR 2:034 Section (2)(2)(b); and (3) the circuit court
should not have given weight to the affidavit of Mary Elizabeth Bailey.5
First, the circuit court applied the appropriate standard of review.
Chappell takes issue with the circuit court’s citation to Commonwealth,
Transportation Cabinet Department of Vehicle Regulation v. Cornell, 796 S.W.2d
591, 594 (Ky. App. 1990) (citation omitted), wherein this Court held “[j]udicial
review of an administrative agency’s action is concerned with the question of
4
Our decision to review for manifest injustice only is based solely on Appellant’s failure to
comply with CR 76.12(4)(c)(v), which sets forth the requirement for preservation statements.
See Blackaby v. Barnes, 614 S.W.3d 897, 900 n.4 (Ky. 2021) (indicating palpable error review is
appropriate only where briefing defect pertains to statements regarding preservation of
error). Appellant’s argument contains no preservation statements.
5
In her brief, Chappell concedes to the correctness of the circuit court’s decision regarding her
argument on equitable estoppel. Therefore, we will not address this issue on appeal.
-5-
arbitrariness.” This is correct. Furthermore, “[j]udicial review of an
administrative decision is limited to a determination of whether the agency acted
within the constraints of its statutory powers, whether the agency’s procedures
afforded procedural due process, and whether the agency’s decision is supported
by substantial evidence of record.” Carreer v. Cabinet for Health and Family
Services, 339 S.W.3d 477, 481 (Ky. App. 2010) (citation omitted).
Chappell is correct insofar as she accurately identifies de novo as the
standard of review for questions of statutory interpretation. Kentucky Authority for
Educational Television v. Estate of Wise, 614 S.W.3d 506, 510 (Ky. App. 2020)
(citation omitted). Herein, the Board determined 101 KAR 2:034 Section 2(2)(b)
ambiguous and relied upon the Cabinet’s “long-standing construction of the
language in this regulation” in reaching its decision. Record (“R.”) at 45. On
review, although the circuit court affirmed the Board’s decision, it determined the
regulation was not ambiguous. Id. at 99. The circuit court appropriately reviewed
the regulation in question without deference to the Board’s interpretation.
Therefore, the circuit court did not err, and no manifest injustice resulted.
Next, the circuit court correctly interpreted 101 KAR 2:034 Section
2(2)(b). Chappell does not contest the circuit court’s finding that the regulation is
unambiguous but rather argues a plain reading of the regulation entitles her to a
higher salary.
-6-
Former unclassified employees with prior classified
service. An appointing authority shall set the salary of a
former classified employee who moved to the
unclassified service and who is reinstated, reemployed, or
probationarily appointed to a position in the classified
service in one (1) of the following ways:
1. In accordance with the standards for making new
appointments;
2. Up to the same salary as that paid at the time of
separation from the classified service, if that salary
does not exceed the pay grade midpoint salary plus the
difference, in dollars, between the job class entry level
salary and the pay grade midpoint salary;
3. At a salary that is the same as the salary the employee
last received in the classified service with adjustments
for increases that would have been received if the
employee had remained in the classified service prior
to resignation if the salary does not exceed the pay
grade midpoint salary plus the difference, in dollars,
between the job class entry level salary and the pay
grade midpoint salary; or
4. At a salary up to five (5) percent above the pay grade
entry level wage for each year of service in the KRS
Chapter 18A system, if the salary does not exceed the
pay grade midpoint salary plus the difference, in
dollars, between the job class entry level salary and the
pay grade midpoint salary. Salary shall be calculated
using whole percentages.
101 KAR 2:034 Section 2(2)(b). The monthly salary minimum and midpoint for
the position of Transportation Engineer II are $3,553.88 and $4,707.96,
respectively. However, the position also has a special entrance rate of $4,707.96,
meaning any newly hired individual would receive a salary of at least the midpoint
-7-
salary. Chappell argues she is entitled to $5,862.04 per month, the midpoint
salary plus the difference between the salary minimum and midpoint.6 The
Cabinet reasons there is no difference between the job class entry level salary and
the pay grade midpoint salary because the special entrance rate is the entry level
salary, making the entry level salary and the midpoint salary one and the same.
At issue in this matter is the meaning of “entry level salary” as it is
used in 101 KAR 2:034 Section 2(2)(b). “It is well settled that in the construction
and interpretation of administrative regulations, the same rules apply that would be
applicable to statutory construction and interpretation.” Revenue Cabinet,
Commonwealth v. Gaba, 885 S.W.2d 706, 708 (Ky. App. 1994) (citation omitted).
To interpret a regulation, we “accord to words of a [regulation] their literal
meaning unless to do so would lead to an absurd or wholly unreasonable
conclusion.” Cosby v. Commonwealth, 147 S.W.3d 56, 59 (Ky. 2004) (citation
omitted). We need not look beyond the plain language of the regulation so long as
its meaning is clear. Univ. of Louisville v. Rothstein, 532 S.W.3d 644, 648 (Ky.
2017) (citation omitted).
The job description for Transportation Engineer II does not use the
phrase “entry level salary.” Instead, it refers to both the minimum salary and the
6
Initially, Chappell argued she was entitled to $5,759.80, the monthly salary agreed to by
KYTC. However, during the proceedings before the circuit court, she argued $5,862.04 was the
maximum salary she was allowed under 101 KAR 2:034 Section 2(2)(b).
-8-
special entrance rate. For the position of Transportation Engineer II, no newly
hired individual receives a salary of less than $4,707.96 per month, making the
special entrance rate the entry level salary. Because this amount equals the
midpoint, there is no difference between the entry level and midpoint salaries.
Therefore, under 101 KAR 2:034 Section 2(2)(b), Chappell is entitled to a monthly
salary no greater than $4,707.96. The circuit court did not err, and no manifest
injustice occurred.
Finally, Chappell argues the circuit court should not have given
weight to the affidavit of Mary Elizabeth Bailey, Commissioner for the
Department of Human Resources Administration for the Cabinet. She attempts to
bolster her position with conclusory statements and unsupported allegations
regarding the veracity of the information contained in the affidavit. “[M]ere
conclusory statements[] form an insufficient basis upon which this Court can grant
relief.” Jones v. Livesay, 551 S.W.3d 47, 52 (Ky. App. 2018). Therefore, we
cannot find the circuit court erred.
CONCLUSION
Based on the foregoing, the judgment of the Franklin Circuit Court is
affirmed.
ALL CONCUR.
-9-
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE,
KENTUCKY PERSONNEL
Sherri Chappell, pro se CABINET:
London, Kentucky
Rosemary G. Holbrook
Frankfort, Kentucky
-10-