Said v. Lackey

GUDGEL, Judge,

dissenting:

It is clear that KRS 71.060(2), as amended in 1984, vests the Campbell County jailer with the power to appoint and remove all deputy jailers. It is undisputed that pursuant to the statute, the Campbell County jailer gave appellant written notice that he was being immediately terminated as a jail employee effective October 10, 1985. Moreover, at the time appellant received written notice of his termination, he was orally advised that he was being dismissed because he had engaged in numerous incidents of prohibited conduct involving inmates.

However, in determining the propriety of the court’s summary judgment, there is no need to address the several legal issues raised by appellant. Even if we were to assume that as a jail employee appellant was a county employee and therefore entitled to avail himself of the grievance procedures set forth in the Campbell County Administrative Code, it is clear that the court’s summary judgment should nevertheless be affirmed.

Section 324 of that code permits an employee to be dismissed for certain enumerated reasons, including unsatisfactory job performance. Moreover, if the employee’s conduct is severe enough, section 324.05(c) authorizes a summary dismissal of the employee as an initial disciplinary action. Although section 324.06 authorizes the dismissed employee to file a grievance and contest the dismissal “in accordance with section 360,” the latter section requires the disciplined employee to present the grievance within three working days of the imposition of the disciplinary action. Here, it is undisputed that appellant was terminated on Thursday, October 10, 1985. However, he did not file a grievance proceeding until Wednesday, October 16, which was more than three working days later. Since appellant therefore failed to strictly comply with his duty under the administrative code to file a grievance within three working days of his discharge, he lost his right to contest the discharge. Cf. Board of Adjustments of the City of Richmond v. Flood, Ky., 581 S.W.2d 1 (1978). Further, the jail manual upon which appellant also relies was never legally adopted by the fiscal court. As the jail manual has no legal efficacy whatsoever, the majority’s conclusion that appellant was entitled to notice and a hearing as specified in the manual is totally unwarranted.

For the reasons stated, I would affirm the court’s summary judgment.