Opinion
Nos. 2007-CA-000128-MR, 2007-CA-000130-MR.
September 19, 2008.
Appeal and Cross-Appeal from Jefferson Circuit Court, Honorable W. Douglas Kemper, Judge, Action Nos. 05-CI-009088 05-CI-009091.
Jeffrey S. Walther, W. Scott Hunt, Lexington, Kentucky, Brief for Appellant/Cross Appellee.
Byron E. Leet, Lisa C. DeJaco, Louisville, Kentucky, Brief for Appellee/Cross Appellant.
OPINION
Cara Sajko appeals from an order of the Jefferson Circuit Court affirming an order of a tribunal that upheld the school superintendent's termination of Sajko's employment as a teacher in the Jefferson County school system. Because we conclude that the tribunal lacked jurisdiction to consider Sajko's appeal, we affirm.
Sajko had been employed as a teacher in the Jefferson County school system for a number of years. During the time in question (2003-2004 and 2004-2005 school years), Sajko was a teacher at Louisville Male Traditional High School. Sajko's actions involving her treatment of students led to the school principal taking action in the form of reprimands and directives to Sajko in an effort to stop her inappropriate behavior. Sajko was twice suspended without pay when she failed or refused to follow the principal's directives.
In January 2005, Sajko was advised that she must submit to an occupational evaluation to determine whether she had any health problems that could affect her performance as a teacher. When Sajko refused to submit to the evaluation, the superintendent, Stephen W. Daeschner, suspended her without pay pending recommendation that her employment be terminated.
On March 28, 2005, the superintendent caused a seven-page letter from him to be hand-delivered to Sajko informing her that he was terminating her employment on the grounds of her insubordination and conduct unbecoming a teacher. See Kentucky Revised Statutes (KRS) 161.790(1)(a) and (b). The superintendent cited specific instances in the letter and stated that Sajko was terminated due to "the seriousness of the violations" and Sajko's "previous disciplinary record that includes two suspensions and numerous reprimands and warnings."
The letter also advised Sajko that she could answer the charges and contest the termination by providing notice to him and to the commissioner of the Kentucky Department of Education within 10 days after receiving the letter. Additionally, the letter stated that the termination would be final if Sajko failed to provide the notice within that time. The applicable statute, KRS 161.790(3), was referenced.
The statute states:
Prior to notification of the board, the superintendent shall furnish the teacher with a written statement specifying in detail the charge against the teacher. The teacher may within ten (10) days after receiving the charge notify the commissioner of education and the superintendent of his intention to answer the charge, and upon failure of the teacher to give notice within ten (10) days, the dismissal shall be final.
Id. Although Sajko denies receiving the notice on March 28, 2005, two school system employees as well as Sajko's union representative testified that she received it on that date.
On April 7, 2005, exactly ten days after receipt of the superintendent's letter, Sajko's attorney sent a facsimile letter (fax) to the office of the school board's general counsel indicating that Sajko intended to answer the charges against her and that copies of the notice would be sent to the appropriate parties. The fax was not sent until after regular business hours and was not read by the school board's general counsel until the following day, which was 11 days after the termination letter had been delivered to Sajko.
As provided in KRS 161.790(4), a three-member tribunal was appointed to consider Sajko's termination. Prior to the tribunal hearing, a hearing officer considered the school system's motion to dismiss Sajko's appeal on the ground that the notice was not delivered in a timely manner and that the termination was therefore final. See KRS 161.790(5). That motion was denied when the hearing officer determined the statute was ambiguous.
The tribunal heard evidence for eight days and found that Sajko was guilty of insubordination in violation of KRS 161.790(1)(a). The tribunal concluded, however, that Sajko did not engage in conduct unbecoming a teacher. In the tribunal's final order, it found that "Sajko would consider any reduction in the sanction as vindication of her inappropriate teaching methods and her unacceptable responses to Male High School officials' directives." Thus, the tribunal affirmed the superintendent's decision to terminate Sajko's teaching contract.
Both sides sought review from the Jefferson Circuit Court. See KRS 161.790(8); KRS 13B.140(1); James v. Sevre-Duszynska, 173 S.W.3d 250, 256 (Ky.App. 2005). The court affirmed the tribunal's decision to terminate Sajko's teaching contract based on insubordination. The court also affirmed the tribunal's finding that Sajko was not guilty of conduct unbecoming a teacher. In addition, the court affirmed the tribunal's decision that it had jurisdiction to hear Sajko's appeal.
In Roberts v. Watts, 258 S.W.2d 513 (Ky. 1953), the court held
The right of appeal in administrative as well as other proceedings does not exist as a matter of right. When the right is conferred by statute, a strict compliance with its terms is required.
Id.
Sajko contends that she complied with the notice requirement by sending a facsimile letter to the school system's counsel following business hours on the tenth day after her receipt of the superintendent's letter. She maintains that such notice constitutes constructive notice to the superintendent and to the commissioner of the Kentucky of Department of Education. Such notice, however, does not strictly comply with KRS 161.790(3), as that statute plainly states that notice must be given to the superintendent and the commissioner.
Sajko also contends that the notice was sufficient because she mailed notice to the superintendent and to the commissioner on the tenth day. She argues that the mailing of the letters, not their receipt, satisfies the notice requirement of the statute. We disagree.
In Energy Regulatory Commission v. Kentucky Power Co., 605 S.W.2d 47, 51 (Ky.App. 1980), this court stated that "[w]e believe that it is not the sending but the receipt of a letter that constitutes true notice." In Baldwin v. Fidelity Phenix Fire Ins. Co. of New York, 260 F.2d 951, 953-54 (6th Cir. 1958), the court stated that "[i]t is not, therefore the sending, but the receipt, of a letter that will constitute notice."
As neither the superintendent nor the commissioner received Sajko's letter notifying them of her intent within 10 days of her receipt of the superintendent's letter, Sajko failed to strictly comply with the notice requirements of the statute. Sajko's failure to meet the timely notice requirement denied the tribunal jurisdiction to consider her defense to the charges.
The order of the Jefferson Circuit Court is affirmed.
In affirming the circuit court's order, we uphold its affirming the tribunal's termination of Sajko's contract. We do not affirm based on the reasons given by the tribunal and the circuit court, however. Rather, we affirm based on the tribunal's lack of jurisdiction, an issue that both the tribunal's hearing officer and the circuit court decided adversely to the superintendent and school board. "[W]e, as an appellate court, may affirm the trial court for any reason sustainable by the record." Kentucky Farm Bureau Mut. Ins. Co. v. Gray, 814 S.W.2d 928, 930 (Ky.App. 1991).
ALL CONCUR.