Defenses: COA in NPO decision addresses immunity issue re bullying charges and supervision of students

FLORENCE V. L.P.
COA NPO
JAN. 20, 2012

STUMBO, JUDGE: Joyce Florence, Mike Ernst, and Michael Bayless (hereinafter collectively referred to as the appellants) appeal from an order denying summary judgment based on qualified official immunity. These appellants argue that they are entitled to immunity based on state and federal grounds. L.P. (hereinafter referred to as Mother),2 argues that the appellants are not entitled to immunity, or at a minimum, that there are still genuine issues of material fact that preclude the grant of summary judgment. We find that the trial court incorrectly denied summary judgment to the appellants and reverse and remand with instructions to grant summary judgment in favor of all three appellants.

There are two cases that Jane Doe relies on to show that the supervision of students is ministerial. Those are Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001), and Williams v. Kentucky Dept. of Educ., 113 S.W.3d 145 (Ky. 2003). We find these two cases distinguishable, for the same reasons the Kentucky Supreme Court did in Turner, supra.

Although we consider [Appellant’s] conduct in this case to be discretionary, we recognize the apparent incongruity with our precedent regarding a supervisory duty in the public school setting, as “we have held that a claim of negligent supervision may go to a ministerial act or function in the public school setting.” However, Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001)[,] and Williams [v. Kentucky Dept. of Educ.], 113 S.W.3d 145 [(Ky. 2003)]-the cases relied upon in enunciating the public school distinction-have quite different facts from those before us.
In Yanero, this Court deemed “enforcement of a known rule requiring that student athletes wear batting helmets during baseball batting practice” to be ministerial. Unlike the teacher’s decision-making in this case, a helmet requirement constitutes “an essentially objective and binary directive.” As a result, “[t]here is no substantial compliance with such an order and it cannot be a matter of degree: its enforcement was absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.” You do it or you don’t-and unlike here, there is no factual determination required for its application.

Admittedly, [in Williams] we have also “rejected the notion that the failure of teachers … to supervise their students in the face of known and recognized misbehavior was a discretionary act.” This decision stemmed from the requirement in KRS 161.180(1) that teachers must “hold pupils to strict account for their conduct on school premises, on the way to and from school, and on school sponsored trips and activities.” The dispute in this case, though, concerns the means of supervision rather than a failure to supervise students who were drinking and driving to and from a school- sponsored function as occurred in Williams.
Turner at 876-877(citations omitted). In the case at hand, the appellants’ supervision of the students required more discretionary actions than requiring a student to wear a helmet during batting practice, as in Yanero. Further, the appellants did not fail to supervise and discipline students, as was the case in Williams. As is clear from the evidence of record consisting of depositions, e-mails exchanged by Mother to the school staff, and transcripts of telephone calls, the appellants all took action when notified by Mother of her belief that her daughter was being bullied and harassed. Florence acted by meeting with teachers to see if they knew about the harassment and to direct them to monitor Doe and Student 1. She also directly asked Doe if there was anything Doe needed to tell her about the incidents or if Doe would like her to follow up later. Florence gave Doe an administrative pass that would allow her to leave class anytime she felt uncomfortable or anxious and had Student 1’s schedule changed so he and Doe would not be in the same class. Florence also called and e- mailed Mother in order to keep her informed and to gather more information.

Public officials are presumed to have performed their duties in good faith. Rowan County, supra; Koscot Interplanetary, Inc. v. Commonwealth, by Allphin, 649 S.W.2d 201, 202 (Ky. 1983). Although Doe’s brief suggests bad faith on the part of the appellants, the record of appellants’ conduct from the first incident brought to their attention in mid-January until Mother removed Doe from Crawford in mid-April contains not an instance of disrespectful or unconcerned conduct toward Doe or her mother. On the contrary, what is notable in review of the e-mail and recorded conversations between the appellants and Mother and between the appellants and other school personnel is the respectful, concerned tone which the appellants maintained even as the tone of Mother increasingly reflected her escalating frustration due to her perceptions of Doe’s victimization. However, a concerned parent’s conclusion that her child is being victimized does not make it so. What is legally significant is that her concerns were heard and the appellants took steps to determine whether Doe was being bullied and to stop or prevent any bullying.
In discussing the conduct of school officials following the carnage at the hands of Michael Carneal, the James Court stated:

Any of the conduct engaged in by the teachers, administrators and Board members can be properly classified as discretionary as they personify the type of acts which are intended to receive protection. Without such protection, the ability of those entrusted with the education of our children to perform the varied functions fundamental to their employment would be hindered. The conduct exhibited by the school appellees inherently required conscious evaluation of alternatives, personal reflection and significant judgment. By definition, their actions were discretionary. In this circumstance, their judgment may arguably be questionable, particularly with the benefit of hindsight, but applying such an unrealistic standard is not only unjust, it’s unauthorized.

James, at 909-10. In this case, there is no allegation that known rights were violated or
that malice and/or corruption were responsible for the conduct of the school personnel. Consequently, neither the appellants’ actions nor any inaction resulted from bad faith. The Kentucky Supreme Court has stated, [i]t is imperative that teachers maintain the discretion to teach, supervise, and appropriately discipline children in the classroom. To do this, they must have appropriate leeway to do so, to investigate complaints by parents, or others, as to the conduct of their students, to form conclusions (based on facts not always known) as to what actually happened, and ultimately to determine an appropriate course of action, which may, at times, involve reporting the conduct of a child to the appropriate authorities. In fact, protection of the discretionary powers of our public officials and employees, exercised in good faith, is the very foundation of our doctrine of “qualified official immunity.”

Turner at 876. Based on the foregoing, we find that the trial court incorrectly denied
summary judgment for the appellants. We therefore reverse and remand this case with instructions to grant the appellants’ motions for summary judgment due to qualified official immunity.

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