RENDERED: APRIL 29, 2021

TO BE PUBLISHED

Supreme Court of Kentucky

2019-SC-0282-DG

PERRY PUCKETT APPELLANT

ON REVIEW FROM COURT OF APPEALS

V. NO. 2017-CA-1060

FRANKLIN CIRCUIT COURT NO. 10-CI-01144

CABINET FOR HEALTH AND FAMILY 

SERVICES AND KENTUCKY PERSONNEL 

BOARD

APPELLEES

OPINION OF THE COURT BY JUSTICE KELLER

AFFIRMING

Perry Puckett was terminated from his employment with the 

Commonwealth of Kentucky Cabinet for Health and Family Services (CHFS) in 

2009 for excessive and inappropriate personal email usage. After protracted 

litigation through multiple levels of appeals, the Franklin Circuit Court 

reversed his termination. CHFS appealed to the Court of Appeals which 

reversed the circuit court. This Court granted discretionary review, and after a 

careful review of the record and pertinent authority, we affirm the Court of 

Appeals.

I. BACKGROUND

In 2009, Puckett was employed by CHFS as a Disability Adjudicator III –

Trainer. He had been employed by CHFS for over a decade when he was 
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terminated in 2009 for excessive and inappropriate email usage including

sending emails that contained graphic sexual comments and photos, 

unprofessional language, and derogatory comments about coworkers and 

supervisors. Significantly, Puckett’s termination letter was signed by Jay Klein, 

a Division Director in the Division of Employee Management at CHFS,

purportedly on behalf of J.P. Hamm, CHFS’s Human Resources Director. Klein 

signed Hamm’s name, followed by a diagonal slash and his own initials (JK). 

Hamm had been appropriately delegated appointing authority by the Secretary 

of CHFS, but Klein had not.1 Because the question before us does not involve 

the merits of Puckett’s termination, we will not discuss the underlying facts in 

great detail. Instead, we will focus our discussion on the long procedural 

history of this case. 

After receiving the termination letter, Puckett timely appealed his 

termination to the Kentucky Personnel Board (the Board). A hearing was held 

before a hearing officer at which several CHFS employees testified, including 

Klein. During CHFS’s opening statement, counsel for CHFS stated that Klein 

made the final determination to terminate Puckett. Sean Estep, Human 

Resources Administrator for CHFS, testified at the hearing and twice referred to 

Klein as the appointing authority charged with making termination decisions. 

Klein himself testified that he was the appointing authority for disciplinary 

actions and that part of his job was to review final disciplinary actions and 

 

1 In this Opinion, we assume without deciding that Klein did not possess the 

requisite authority to terminate Puckett.
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“sign off” on said actions. No witness was asked, and no witness testified as to, 

who actually signed Hamm’s name on Puckett’s termination letter. However, 

during his testimony, Klein acknowledged signing Hamm’s name, followed by 

his own initials, on another document relating to a different employee, and this 

document was admitted into evidence, by stipulation, at the hearing. 

After an evidentiary hearing, the hearing officer issued a recommended 

order finding that Puckett’s punishment was disproportionately harsh and 

recommending that the termination be reduced to a 30-day suspension. CHFS 

filed exceptions to the hearing officer’s recommended order, and Puckett did 

not. The Board rejected the hearing officer’s recommended order and instead 

imposed Puckett’s termination. Puckett then timely petitioned the Franklin 

Circuit Court for review of his termination.

While the case was pending in Franklin Circuit Court, Puckett’s attorney 

learned, through discovery in a separate, unrelated case, that Klein had 

actually signed Hamm’s name to Puckett’s termination letter. Also while 

Puckett’s case was pending, it became clear that Klein did not have the 

requisite appointing authority to terminate CHFS employees. Based on this 

new knowledge, Puckett moved to amend his complaint in circuit court to 

include a claim that Puckett’s termination was null and void because the 

person who signed the termination document lacked appointing authority to 

terminate him. He further moved for a stay of the proceedings in circuit court 

so that the matter could be remanded to the Board for consideration of whether 

his termination was void. The circuit court granted both of these motions.
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CHFS then filed both a petition for a writ of prohibition and an 

interlocutory appeal in the Court of Appeals. The writ petition asked the Court 

of Appeals to prohibit the circuit court from enforcing its order remanding the 

case back to the Board. The Court of Appeals denied the writ petition holding 

that the circuit court acted within its jurisdiction in remanding the case back 

to the Board. Ky. Cabinet for Health & Family Servs. v. Puckett, No. 2012-CA002195-OA (Ky. App. June 10, 2013). In the interlocutory appeal, the Court of 

Appeals held that Puckett’s “amended complaint properly asserts a claim for 

declaratory relief which is not barred by the doctrine of sovereign immunity.” 

Cabinet for Health & Family Servs. v. Puckett, No. 2012-CA-002165-MR, 2014 

WL 689094, at *1 (Ky. App. Feb. 21, 2014).

Following the Court of Appeals’ rulings, the Board took up the case on 

remand from the circuit court. A hearing officer held another evidentiary 

hearing and issued a recommended order. The hearing officer concluded that 

the Board had no authority to decide whether Puckett’s termination was void 

due to Klein’s lack of appointing authority because there was no evidence of 

fraud or misconduct on the part of CHFS and the issue had not been raised or 

preserved before the Board previously. Puckett filed exceptions to the hearing 

officer’s recommended order; however, the Board adopted the hearing officer’s 

recommended order in its entirety. 

Puckett then moved the circuit court to re-activate the case and for leave 

to file another amended complaint to include review of the Board’s most recent 

order. An agreed order was entered lifting the stay and allowing the amended 
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complaint to be filed. After briefing and argument, the circuit court entered an 

opinion and order reversing the Board’s original order terminating Puckett, 

finding that the Board lacked substantial evidence to terminate Puckett and 

that its decision was arbitrary. Interestingly, the circuit court never addressed 

the issue on which it remanded the case to the Board, whether Puckett’s 

termination was void due to Klein’s lack of appointing authority. CHFS 

appealed to the Court of Appeals.2

The Court of Appeals reversed the circuit court holding, in short, that the 

circuit court substituted its own judgment for that of the Board and that 

substantial evidence supported Puckett’s termination. Relevant to this appeal, 

the Court of Appeals declined to address Puckett’s argument that his 

termination was void because Puckett did not properly preserve that argument 

for appeal and CHFS did not commit fraud or misconduct.

Puckett filed a motion for discretionary review with this Court which we 

granted to determine, essentially, whether the circuit court’s remand to the 

Board was proper.

II. STANDARD OF REVIEW

This case primarily involves the interpretation of Kentucky Revised 

Statute (KRS) 13B.150. “Because the construction and application of statutes 

is a question of law, it is subject to de novo review on appeal.” Osborne v. 

Commonwealth, 185 S.W.3d 645, 648 (Ky. 2006).

 

2 Puckett cross-appealed on issues unrelated to that before us today.
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III. ANALYSIS

1. Preservation

Because Puckett was a classified employee with status, he could only be 

dismissed with cause. KRS 18A.095(1). KRS 18A.095(7)(c) allowed Puckett to 

appeal his dismissal to the Board within sixty (60) days of the dismissal. He did 

so. An administrative hearing on his dismissal was then “conducted in 

accordance with KRS Chapter 13B.” KRS 18A.095(17). As previously explained, 

the hearing officer found Puckett’s termination to be unduly harsh and 

recommended only a 30-day suspension. Puckett did not file exceptions to 

anything in the hearing officer’s recommended order, but CHFS did. After the 

Board entered an order in favor of CHFS, Puckett petitioned the Franklin 

Circuit Court for review of his termination in accordance with KRS 13B.140 

which subjects all final orders of an agency to judicial review.

“It is well settled that failure to raise an issue before an administrative 

body precludes the assertion of that issue in an action for judicial review.” 

Urella v. Kentucky Bd. of Med. Licensure, 939 S.W.2d 869, 873 (Ky. 1997) 

(citing Jackson v. State Auto. Mut. Ins. Co., 837 S.W.2d 496, 498 (Ky. 1992); 

Personnel Bd. v. Heck, 725 S.W.2d 13, 17 (Ky. App. 1987)). “Under Chapter 

13B, the filing of exceptions provides the means for preserving and identifying 

issues for review by the agency head. In turn, filing exceptions is necessary to 

preserve issues for further judicial review.” Rapier v. Philpot, 130 S.W.3d 560, 

563 (Ky. 2004). By failing to file an exception regarding the appointing 

authority of Klein, Puckett failed to preserve this issue for judicial review. We 
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have previously made clear that failure to follow this preservation rule 

“precludes judicial review of any part of the recommended order not excepted 

to and adopted in the final order.” Id. at 563–64. We have further explained

that “when a party fails to file exceptions, the issues the party can raise on 

judicial review under KRS 13B.140 are limited to those findings and 

conclusions contained in the agency head's final order that differ from those 

contained in the hearing officer's recommended order.” Id. at 564. In this case, 

the Board’s final order did not differ from the hearing officer’s recommended 

order in regard to the authority of Klein to terminate Puckett, as this was never 

raised as an issue to either the hearing officer or the Board. Accordingly, 

Puckett could not raise the issue on judicial review under KRS 13B.140.

Once before the circuit court, that court’s review of the agency’s order is 

“confined to the record, unless there is fraud or misconduct involving a party 

engaged in administration of [Chapter 13B].” KRS 13B.150(1). The circuit court

may affirm the final order or it may reverse the final order, in 

whole or in part, and remand the case for further proceedings if it 

finds the agency's final order is:

(a) In violation of constitutional or statutory provisions;

(b) In excess of the statutory authority of the agency;

(c) Without support of substantial evidence on the whole record;

(d) Arbitrary, capricious, or characterized by abuse of discretion;

(e) Based on an ex parte communication which substantially 

prejudiced the rights of any party and likely affected the outcome 

of the hearing;

(f) Prejudiced by a failure of the person conducting a proceeding to 

be disqualified pursuant to KRS 13B.040(2); or

(g) Deficient as otherwise provided by law.
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KRS 13B.150(2). As explained above, the circuit court remanded the case to 

the Board to address Puckett’s claim regarding Klein’s authority to terminate 

him. 

Puckett argues the circuit court’s remand was proper under KRS 

13B.150(1)(a), (d), and (g). We, however, disagree. When considered in light of 

the evidence before it, the Board’s order itself was not “[i]n violation of 

constitutional or statutory provisions;” “[a]bitrary, capricious, or characterized 

by abuse of discretion;” or “[d]eficient as otherwise provided by law.” The Board 

did not have any evidence before it regarding Klein’s authority, or lack thereof, 

to terminate Puckett. It had no ability, and no reason, to look outside of that 

evidence to consider an issue that was never argued before it. The order itself 

was not in violation of constitutional or statutory provisions. Further, it was 

not arbitrary, capricious, or an abuse of discretion for the Board to terminate 

Puckett despite Klein’s lack of authority because it was not presented with 

evidence of that lack of authority. Finally, the order itself was not deficient as 

otherwise provided by law. Therefore, the Board’s termination of Puckett, 

despite Klein’s lack of authority to terminate him, fails to meet any of the 

criteria for remand as set out in KRS 13B.150(2). Accordingly, the circuit court 

erred in remanding Puckett’s case to the Board under KRS 13B.150(2).

2. Doctrine of Primary Jurisdiction

Puckett also argues that under the doctrine of primary jurisdiction, the 

circuit court’s remand to the Board was proper so that the Board could make 

an initial determination regarding Klein’s authority to terminate Puckett. We 
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disagree. We have previously explained that “[t]he precise function of the 

doctrine of primary jurisdiction is to guide a trial court in deciding whether the 

court should refrain from exercising its jurisdiction until after an 

administrative agency has determined some question or some aspect of some 

question arising in the proceeding before the court.” Preston v. Meigs, 464 

S.W.2d 271, 274 (Ky. 1971). In Preston, we quoted United States Supreme

Court Justice Marshall, who explained, “When there is a basis for judicial 

action, independent of agency proceedings, courts may route the threshold 

decision as to certain issues to the agency charged with primary responsibility 

for governmental supervision or control of the particular industry or activity 

involved.” Id. (quoting Port of Boston Marine Terminal Ass'n v. 

Rederiaktiebolaget Transatlantic, 400 U.S. 62, 68 (1970)).

In this case, the judicial action was not independent of the agency 

proceedings. Instead, the judicial action was a review of those proceedings.

Puckett argues that the determination of whether Klein had the authority to 

terminate his employment was best left to the Board before the trial court 

proceeded. The doctrine of primary jurisdiction, however, does not supplant 

our rules of preservation. It merely “recognizes that the court has subjectmatter jurisdiction but as a matter of judicial policy should not exercise it in 

instances where proper judicial administration requires that action be deferred 

by the court until the agency has acted and the court may then review its 

action.” Id. at 274–75. In this case, the Board had already acted on the issue of 

Puckett’s termination. Although the Board did not decide the specific issue of 
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Klein’s authority to terminate Puckett, this issue was never presented to it. As 

such, in this case the doctrine of primary jurisdiction is not relevant to a 

determination of whether the circuit court’s remand of the matter back to the 

Board was proper.

3. Law of the Case Doctrine

Puckett also argues that the law of the case doctrine prevents a current 

review of the propriety of the circuit court’s remand. Specifically, he argues 

that the Court of Appeals’ decisions in CHFS’s prior writ petition and 

interlocutory appeal from the circuit court’s remand order are the law of the 

case as it relates to whether the circuit court remanded the case to the Board 

in error. 

Under the law of the case doctrine, “if an appellate court has passed on a 

legal question and remanded the cause to the court below for further 

proceedings, the legal questions thus determined by the appellate court will not 

be differently determined on a subsequent appeal in the same case.” Inman v. 

Inman, 648 S.W.2d 847, 849 (Ky. 1982) (quoting 5 Am. Jur. 2d Appeal and 

Error § 744). The doctrine, however, is inapplicable in this case, because the 

Court of Appeals’ holdings to which Puckett refers were not on the specific legal 

issue before us today.

The issue before the Court of Appeals in CHFS’s interlocutory appeal was 

whether sovereign immunity shielded it from Puckett’s amended complaint. 

Puckett, 2014 WL 689094, at *1. The Court of Appeals merely held that the 

“amended complaint properly asserts a claim for declaratory relief which is not 
11

barred by the doctrine of sovereign immunity.” Id. It did not pass on the 

propriety of the circuit court’s remand to the Board. In fact, the Court of 

Appeals specifically stated that “other matters, including the circuit court's 

order remanding this case to the Board, are not before this Court at this time.” 

Id. at *4. Accordingly, the Court of Appeals’ opinion in CHFS’s interlocutory 

appeal did not create the law of the case on the issue currently before this 

Court.

In CHFS’s petition for a writ of prohibition filed in the Court of Appeals, 

CHFS argued that the trial court exceeded its jurisdiction when it remanded 

Puckett’s case back to the Board. Puckett, No. 2012-CA-002195-OA. Thus, the 

Court of Appeals’ holding in that case was limited to whether the trial court 

acted within its jurisdiction when it remanded the matter to the Board. Any 

statements regarding the propriety of the remand were not properly before the 

Court of Appeals at that time. Therefore, the Court of Appeals’ opinion in 

CHFS’s writ case did not create the law of the case on the current issue.

4. Void Versus Voidable Action

Finally, Puckett argues that his termination was void ab initio, and 

therefore, preservation of it is not required. A void action is one that is “a 

nullity from the outset.” Carter v. Smith, 366 S.W.3d 414, 424 (Ky. 2012) (citing 

BLACK'S LAW DICTIONARY (9th ed. 2009)). A voidable action, on the other hand, 

“is an action that is valid until it is annulled.” Id. (citing BLACK'S LAW DICTIONARY

(9th ed. 2009)). If an action is void, “[a] court may, in a proper proceeding, 

vacate it at any time. The lapse of time is no bar to such relief.” Hill v. Walker, 
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180 S.W.2d 93, 95 (Ky. 1944). Accordingly, if Puckett’s termination is void, it 

can be declared so at any time, regardless of preservation. It would follow that 

any other adverse employment actions taken by Klein would also be void 

regardless of how long ago those actions were taken and whether the issue had

ever been addressed before. This simply cannot be so.

Regarding judgments, we have previously held that “[t]he generally 

accepted rule is that where the court has jurisdiction of parties and subject 

matter, the judgment, if erroneous, is voidable, not void.” Dix v. Dix, 222 

S.W.2d 839, 842 (Ky. 1949). On the other hand, “a personal judgment without 

such jurisdiction is void.” Hill, 180 S.W.2d at 95 (citations omitted). Although 

certainly not binding on this Court, the Industrial Commission Division of the

Fourth District Appellate Court of Illinois explained clearly and concisely how 

this concept of jurisdiction applies to administrative agencies. It said,

[t]o the extent an agency acts outside its statutory authority, it acts 

without jurisdiction. The term “jurisdiction,” while not strictly 

applicable to an administrative agency, may be employed to 

designate the authority of the agency to act. In administrative law, 

the term “jurisdiction” has three aspects: (1) personal jurisdiction, 

(2) subject-matter jurisdiction, and (3) the agency's scope of 

statutory authority. Business & Professional People for the Public 

Interest v. Illinois Commerce Comm'n, 136 Ill.2d 192, 243, 144 

Ill.Dec. 334, 555 N.E.2d 693, 716 (1989). A judgment or order is 

void where it is entered by a court or agency which lacks personal 

jurisdiction, subject-matter jurisdiction, or the inherent power to 

enter the particular judgment or order, or where the order is 

procured by fraud. Evans v. Corporate Services, 207 Ill.App.3d 297, 

302, 152 Ill.Dec. 191, 565 N.E.2d 724, 727 (1990).

Siddens v. Industrial Com'n, 711 N.E.2d 18, 21 (Ill. App. Ct. 1999).
13

In this case, someone within CHFS had the authority to terminate 

Puckett. It was within the “jurisdiction” of CHFS to do so. The fact that an 

individual who was not properly delegated the appointing authority to 

terminate Puckett signed his termination letter does not make his termination 

void. It merely makes his termination voidable. We can find nothing in our 

precedent that would make CHFS’s actions in this case void.

Puckett relies on Commonwealth, Tourism Cabinet v. Stosberg for the 

proposition that an agency’s failure to comply with statutory requirements in 

imposing employee discipline makes that disciplinary action void. 948 S.W.2d 

425 (Ky. App. 1997). However, the facts of that case, and the way in which the 

Tourism Cabinet took its disciplinary action in that case, stand in stark 

contrast to the actions taken by CHFS in this case. In Stosberg, the Tourism 

Cabinet involuntarily transferred a classified employee with status but deemed 

the transfer a promotion.3 Id. at 427. In doing so, the Tourism Cabinet 

essentially ignored the statutory scheme regarding employment penalizations

and failed to follow it all together. The Court of Appeals held that the Tourism 

Cabinet had “refus[ed] to implement the protections prescribed in KRS 

18A.095” and had “no authority” to do so. Id. (emphasis added). Because the 

Tourism Cabinet failed to comply with “the mandatory provision of KRS 

 

3 An involuntary transfer is a “penalization” as defined in KRS 18A.005(24) that 

triggers the rights of employees listed in KRS 18A.095.
14

18A.095(2) that such penalization be only ‘for cause[,]’” the Court of Appeals 

held that Stosberg’s transfer was void ab initio.

4 Id. at 428.

In the case before us, CHFS attempted to comply with KRS 18A.095 in 

terminating Puckett. It provided him with an intent to dismiss letter as 

required by KRS 18A.095(2), and Puckett and his attorney were permitted to 

appear personally and be heard in response to this intent to dismiss as 

required by KRS 18A.095(5). Puckett was then notified in writing of his 

dismissal pursuant to KRS 18A.095(7) and permitted to appeal his dismissal to 

the Board. The fact that Klein, who did not have the proper appointing 

authority to terminate Puckett, signed Puckett’s termination letter does not 

make his termination void. CHFS committed a mere procedural error in the 

manner in which it effected Puckett’s termination. This error does not implicate

the same “lack of authority” displayed by the actions of the Tourism Cabinet in 

Stosberg. 

Accordingly, Puckett’s termination is merely voidable, as opposed to void. 

As such, review of Klein’s authority to terminate Puckett is not reviewable “at 

any time” in the way that a void action would be. The issue needed to be 

preserved by presentation to the hearing officer or the Board, but it was not. 

Accordingly, it was improper for the circuit court to remand Puckett’s case to 

the Board on an issue that was not preserved.

 

4 The provision that prohibits penalization of classified employees with status 

“except for cause” is now found in KRS 18A.095(1).
15

IV. CONCLUSION

For the foregoing reasons, we affirm the Court of Appeals and reinstate 

the Board’s order terminating Puckett from his employment with CHFS.

All sitting. All concur. 

COUNSEL FOR APPELLANT:

David Lindsay Leightty

Alison Meredith Messex

Priddy, Cutler, Naake & Meade, PLLC

COUNSEL FOR APPELLEE, CABINET FOR HEALTH & FAMILY SERVICES:

Wesley Warden Duke

Ashley Genevieve Kennedy

Catherine Elaine York

Office of Legal Counsel

COUNSEL FOR APPELLEE, KENTUCKY PERSONNEL BOARD:

Stafford Easterling

Mark Albert Sipek

COUNSEL FOR AMICUS, KENTUCKY PERSONNEL CABINET:

Catherine Marie Stevens