Commonwealth, Natural Resources & Environmental Protection Cabinet v. Hall

HAYES, Judge:

This is an appeal from a judgment of the Franklin Circuit Court dismissing the appeal of the Natural Resources Cabinet from an order of the Personnel Board. The Board ordered reinstatement of appel-lee Sharon Hall on the basis that the notice of dismissal she received was procedurally defective. We disagree and reverse the decision of the circuit court and remand the case to the Personnel Board for a hearing on the merits.

The alleged defect in the notice Ms. Hall received was the failure to cite regulations 101 KAR 1:120 Sections 1 and 3. In reference to any omission of 101 KAR 1:120(3), the letter itself is proof that that section of the regulation was cited. That section plainly sets out the notice requirements for dismissal:

Section 3. Dismissals. (1) The appointing authority may remove any employee with status only for cause after furnishing the employee and the commissioner with a written statement of the specific reasons for dismissal. Such reasons shall be specific as to the statutory and/or rule violation, the time, place, and persons by name involved in the alleged violation, and a specific description of the alleged unlawful activity. Notifications of dismissal that do not properly specify the reasons shall be considered invalid and the employee shall remain on the payroll until such time as proper charges are effected.

(2) Notifications of dismissal shall inform the employee that he has ten (10) working days, not including the date the notice is received, to reply thereto in writing, or upon request, to appear personally with counsel and reply to the appointing authority or his deputy.

(3) An employee with status may appeal his dismissal as set forth in 101 KAR 1:130.

(4) A dismissed employee may be required to forfeit all accrued leave.

(5) Any employee who has been dismissed for cause or who has resigned while charges for dismissal for cause were pending and who seeks further employment with the state shall not be certified to the agency from which separated unless the agency requests such certification.

Nowhere do we find that citation of 101 KAR 1:120(1) is mandatory as that section is merely a general statement of the tenure rights of employees with status:

Section 1. General Provisions. Except as otherwise provided in these rules, the tenure of an employee with status shall be during good behavior and the satisfactory performance of his duties. At the time that an employee is given written notice of layoff, dismissal, suspension and disciplinary fine, an informational copy shall be transmitted to the Personnel Board.

The letter Ms. Hall received specifically addresses: (1) the nature of the charges against her, identifying the statute alleged to have been violated; (2) the dates and times of the incidents which are the subject of the complaint against her; (3) her right to a pre-termination hearing; and (4) her appeal rights. As the notice complies with the statutory requirements and published regulations, we are convinced the Board should have proceeded to hear the merits of the case.

The judgment of the Franklin Circuit Court is reversed and the case is remanded for proceedings on the merits.

Appellant’s motion to strike appellee’s brief is DENIED.

All concur.