EMPLOYMENT LAW – Personnel board procedures: Transportation Cabinet, Commonwealth of Kentucky v. Caudill (COA 2/27/2009)

Transportation Cabinet, Commonwealth of Kentucky v. Caudill
2007-CA-001864
02/27/2009
2009 WL 484984

Opinion by Judge Thompson; Judge Stumbo concurred; Senior Judge Guidugli concurred in result only.

The Court affirmed an order of the circuit court granting a motion by the Kentucky Personnel Board to dismiss a petition for review of a decision finding that the Cabinet failed to follow statutory provisions in hiring.

The Court held that because the circuit court did not make findings of fact and the parties did not request findings on whether appellee waived service of process, the issue could not be reviewed on appeal. The Court then held that the Cabinet had waived the issue of whether the Board lacked standing to file a motion to dismiss the petition, as the issue was not raised in the circuit court. The Court then held that the Cabinet failed to effect service on the aggrieved employee, as counsel who was served did not waive or accept service on the employee’s behalf. Further, because the circuit court did not making a finding as to whether the employee was served in good faith or was in receipt of actual notice, the Court of Appeals could not review the issue because it would require the Court to review factual matters de novo. The Court then held that while the failure to list the employee’s address was not necessarily fatal to the petition under KRS 13B.140(1), the failure to serve him was. The Court finally held that the Board’s failure to comply with KRS 13.140(3) by transmitting the administrative record to the circuit court was harmless error.

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