TORS (WHISTLEBLOWER): BEHANAN V. COBB (COA 2/2/07)

BEHANAN V. COBB
TORTS: Whistleblower Act; Wrongful use of administrative proceedings
EXPERTS: Social worker not competent to give diagnosis opinion
DAMAGES: Affirmed punitives; ATTORNEYS FEES
2005-CA-002170
PUBLISHED: AFFIRMING IN PART AND REVERSING IN PART; ROSENBLUM
DATE RENDERED: 2/2/2007

This is a rather complicated appeal arising from the termination of a school board principal (Cobb) following her reports of wrongdoing by other employees by other employees of the school board.  She claimed the termination of her employment and the proceeding therefrom were a violation of the whistleblower act by the school and two of her superiors and that the two superiors in the school system (superintendent and her immediate supervisor) wrongfully used administrative proceedings.

The defendants (school board, Flynn and Behanan) appealed a jury verdict awarding compensatory and punitive damages totaling $3.5 million in favor of Melinda Cobb.

The Fayette County Public Schools (FCPS) hired Melinda Cobb to serve as the principal for Leestown Middle School (Leestown) for the 1997-98 school year. Cobb’s contract was renewed for the 1998-99 school year. Cobb had previously worked for various public schools in the Commonwealth, but this was her first job within the FCPS. During that time, Russell Behanan was the Director of Middle Schools for the FCPS and was Cobb’s immediate supervisor. Peter Flynn was the Superintendent of the FCPS and was Behanan’s immediate supervisor. Cobb experienced a considerable amount of conflict with several members of the school’s staff during her first year as principal at the school. She continued to have problems with certain members of her staff and with a small group of parents during her second year as principal.

The board terminated Cobb, and at her request administrative proceedings begun. However, the tribunal found that termination was not warranted but a suspension and reprimand was warranted. The board appealed, the circuit court found substantial evidence to support the tribunal’s ruling and held that there was no prejudicial error in the procedures used by the hearing officer who presided at the hearing. The court affirmed the tribunal order and findings. Upon appeal, both this court and the Kentucky Supreme Court affirmed the tribunal’s decision.

Prior to her termination of employment, however, Cobb and the SBDM became the subject of an investigation by the Office of Education Accountability (OEA). Responding to the inquiries of the OEA, Cobb provided information alleging wrongdoing by other employees of the FCPS. Cobb also sought an advisory opinion from the office of general counsel for the commissioner of the Kentucky Department of Education (KDE). Cobb’s initial complaint was filed (April 1999) before the administrative hearing was conducted (August-September 1999). She filed various amended complaints alleging several causes of action. Ultimately, the trial court allowed two causes of action to be presented to a jury, to wit, a statutory claim under Kentucky’s Whistleblower Act against the Board, and a tort claim of wrongful use of administrative proceedings against Flynn and Behanan.

The matter went to the jury which returned a verdict (on whistleblower claim) against all Appellants/Defendants, granting $500,000.00 in punitive damages against the Board under the Whistleblower Act; $500,000.00 each in punitive damages against Flynn and Behanan for wrongful use of administrative proceedings; and, $2,000,000.00 compensatory damages jointly against Flynn and Behanan for wrongful use of administrative proceedings for a total award of $3.5 million.

Now, in this appeal the COA agreeds that the burden shifted to the Board to prove by clear and convincing evidence that the disclosures made by Cobb were not a material factor in the decision to terminate her employment. However, we do not agree that the instructions to the jury need to be tailored to consider every possible scenario under the Act. The instructions need only provide the “bare bones” of the pertinent questions for the jury, and those can be further fleshed out by counsel during closing arguments.

The school board argued the jury should have been instructed to weigh each party’s burden in turn, but does not cite any relevant authority for its argument and it is contrary to Kentucky law.

After reviewing the instruction, COA did not find anything erroneous or so confusing that the jury could not reach a reasonable verdict based on the evidence.

SCOKY has previously enunciated a four element test to determine whether issue preclusion will bar subsequent litigation. For purposes of this opinion, the COA only needed to examine the third element, to wit, “even if an issue was actually litigated in a prior action, issue preclusion will not bar subsequent litigation unless the issue was actually decided in that action.” Because the issues decided by the administrative tribunal are starkly different from the issues decided by the jury in the trial below, the COA held that issue preclusion is wholly inapplicable to this case.

There is a long-standing precedent that one claiming wrongful use of civil proceedings must strictly comply. A claim for “wrongful use of civil proceedings” would include a claim for “wrongful use of administrative proceedings.” Kentucky’s Supreme Court has outlined the elements necessary to prove a claim for wrongful use of civil proceedings: (1) the institution or continuation of original judicial proceedings . . . or of administrative or disciplinary proceedings, (2) by, or at the instance, of the original plaintiff/complainant, (3) the termination of such proceedings in the original defendant’s favor, (4) malice in the institution of such proceeding, (5) want or lack of probable cause for the proceeding, and (6) the suffering of damage as a result of the proceeding.

Flynn and Behanan argue, persuasively, that Cobb failed to meet several elements of the tort and thus were entitled to a directed verdict. COA agreed and reversed the judgment against both Flynn and Behanan. Viewing “the whole case” against Cobb and in light of the fact that the underlying proceeding did not terminate in her favor, the trial court erred in allowing the wrongful use of administrative proceeding claim to go forward against Flynn and Behanan. Accordingly, the trial court erred in denying their motion for a directed verdict and was reversed.

COA further agreed with Flynn and Behanan the trial court erred when it left exclusively for jury determination the existence of probable cause. In an action for wrongful use of civil proceedings, the trial court determines whether the defendant has probable cause for his action.

In addition the COA concluded the trial court erred in allowing the social worker to testify as an expert witness regarding Cobb’s psychological condition. In Kentucky, a social worker is not qualified to give opinion testimony regarding the diagnosis of a mental or emotional disorder. Only a medical expert can testify as to diagnosis and causation of injuries, be they mental or physical. See Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997).

The COA held that the amount of attorney fees awarded were so excessive and unreasonable as to constitute an abuse of discretion. The Kentucky Supreme Court has concluded that the only instance where an attorney must be named as a party to an appeal is where there is “an award of fees to an attorney by judgment in his or her favor[.]” Knott v. Crown Colony Farm, Inc., 865 S.W.2d 326, 331 (Ky. 1993). In Hensley v. Eckerhart, 461 U.S. 424 (1983), the United States Supreme Court set out precise guidance for determining what fee is reasonable, indicating that a trial court should first determine the number of hours reasonably expended on the litigation and a reasonable hourly rate. A party seeking fees should submit evidentiary support not only for the time expended, but also the hourly rates claimed. The trial court should also exclude from any fee request “hours that were not ‘reasonably expended.’”

For the foregoing reasons, the COA did affirm the judgment against the Board and reversed the judgment against Flynn and Behanan and remand to the Fayette Circuit Court for proceedings consistent with this opinion. Consequently, the $500,000 against the school board was affirmed on the Whistleblower claim.

By Michael Stevens, ed.

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