RENDERED: AUGUST 19, 2022; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth o f Kentucky Court of Appeals

NO. 2021

- CA

- 0604

- MR

CHRISTOPHER D. THOMAS APPELLANT

APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE THOMAS D. WINGATE , JUDGE ACTION NO. 20

- CI

- 01007

EDUCATION PROFESSIONAL STANDARD S 1 BOARD AND KENTUCKY PERSONNEL BOARD APPELLEES

OPINION AFFIRMING
**   **  **
BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND K. THOMPSON, JUDGES

. CETRULO , JUDGE: Christopher D. Thomas (“Thomas”), pro se , appeals from
the order of the Franklin Circuit Court dismissing his claims against the Education

1 We utilize the spelling of Education Professional Standards Board as it appears in the record on appeal.- 2

-

Professional Standard s Board (“Education Board”) and the Kentucky Personnel
Board (“Personnel Board”) . Finding no error, we affirm.
BACKGROUND We recognize the right to represent oneself pro se in certain legal

matters. Taylor v. Barlow , 378 S.W.3d 322, 326 (Ky. App. 2012). Addi tionally, we appreciate “ the importance of hearing cases on the merits and preserving the constitutional right to an appeal [

. ] ” K y. Farm Bureau Mut

. Ins

. Co

. v. Conley , 456 S.W.3d 814, 818 (Ky. 2015). Therefore, we have done our best to find all applicab le legal arguments and to discover the relevant facts. However, our
review is limited to the specific order on appeal as it relate s to the named Appellees, the Education Board and the Personnel Board.

Thomas admits to being terminated from his position at the Kentucky Energy and Environment Cabinet (“Cabinet”) 2 in 2013. He appealed that
termination to the Personnel Board , Appeal No. 2013

- 291 (“ Forestry Appeal”)

. He also admits to being terminated from Mammoth Cave National Park (“Mammoth Cave”) in 2017. While both terminations were a result of alleged misconduct, h e contests the validity of those terminations and has had other pending legal actions

– in state and federal court

– as a result of those terminations.

2 This position, specifically, was within the Kentucky Division of Forestry, a department within the Kentucky Energy and Environment Cabinet.- 3

- In February 2019, Thomas completed an application for an emergency substitute teaching certificate. The application included a Character and Fitness section which asked, “H ave you ever resigned, entered into a settlement agreement, or otherwise left employment as a result of [an] allegation of
misconduct?” Thomas answered “no.” The application was approved, and he was issued an emergency certificate for substitute teaching . The certificate expired , without issue, in June 2019.

In September 2019, Thomas again applied for an emergency certificate for substitute teaching. He reported no new information, and as the
Education Board had already reviewed his information, his ap plication was processed and approved. Approximately one month later, in October 2019,
Thomas self

- reported

– to the Education Board

– his termination from the Cabinet
in 2013 and the resulting Forestry Appeal

. The Education Board reviewed the
matter and

– upon a determination that a violation of KRS 3 161.120 may have
occurred

– initiated an investigation. Education Board Administrative Action No.
20

- EPSB

- 0067 Agency Case No. 1910983 (“Administrative Action”). Through the
course of the Administrative Ac tion, t he Education Board determined that Thomas failed to report two previous employment terminations on both of his applications
for certification. Despite this determination, the Education Board state d that the

3 Kentuc ky Revised Statute

.- 4

-

charges were dismissed without disciplina ry actions , and Thomas’s temporary teaching certificate remained active throughout the review process

.

In December 2020, Thomas filed a complaint with the Franklin Circuit Court against the Education Board and the Personnel Board . Therein,
Thomas made numerous claims chiefly originating from the Education Board’s
Administrative Action ( relating to his emergency teaching certificate applications ) and the Personnel Board’s Forestry Appeal ( challenging his 2013 termination )

. In
Mar ch 2021, the circuit court held a hearing 4 on the matter , and i n April the
Franklin Circuit Court addressed all open motion s . The circuit court: a) grant ed the Personnel Board’s motion to dismiss; b) grant ed the Education Board’s motion to dismiss; c) den ied Thomas’s motion to amend the complaint ; d) denied his
motion to dismiss the E ducation B oard ’s Administrative Action ; and e) denied his
motion for extension of time.
ANALYSIS

On appeal , Thomas argues nu merous claims, some applicable, others not; most of Thomas’s appellate brief is spent arguing the validity of the terminations, a matter beyond the scope of this review. Relevantly, i t appears Thomas is challenging the circuit court order as it relates to the two granted
motions to dismis s; accordingly , we will address each motion to dismiss in turn.

4 A video copy of the hearing was not included in the record on appeal.- 5

- A. Personnel Board We agree with the circuit court that “[i ]t is difficult to ascertain what specific claims ” Thomas is argu ing but it appears that he is “taking issue with the July 1 6 , 201 4 , Final Order issued by the Personnel Board and making arguments
related to its validi ty and publication.” 5 More specifically , it appears Thomas is suing the Personnel Board because the onlin e records of the action are causing him
harm. While Thomas argues that these claims are new and ongoing, we agree with the circuit court that they are rooted in the f inal o rder of the Personnel Board. After Thomas’s 2013 termination, he filed his Forestry Appeal based on gender discrimination. Due process was satisfied: a fter proper notice and a hearing, t he Personnel Board’s f inal o rder determined that Thomas failed to establish that gender discrimin ation was the cause of his probationary dismissal. The Personnel Board’s May Order informed Thomas that if he was dissatisfied, there were steps he could take to contest the Personnel Board’s decision :

Pursuant to KRS 13.B110(4), each party shall have fif teen (15) days from the date of this Recommended Order is mailed within which to file exceptions to the Recommended Order with the Personnel Board. . . . Failure to file exceptions will result in preclusion of judicial review of those issues not specifical ly excepted to. On appeal, a circuit court will consider only the issues a party raised in written exceptions. See Rapier v. Philpot , 130 S.W.3d 560 (Ky. 2004).

5 The July 16, 2014 f

inal o rder affirmed

– with one alteration

– the f indings of f

act, c onclusions of l aw , and r ecommended o rder of the h earing o fficer dated May 19 , 2014 (“May Order”)

.- 6

- . . . . Each Party has thirty (30) days after the date the Personnel Board issues a Final O rder in which to appeal to the Franklin Circuit Court pursuant to KRS 13B.140 and KRS 18A.100.
However , it appears Thomas did not file any of the exceptions and/or allegations specifically authorized by KRS 13B.150 to preserve his appeal.
N either did he contest the f inal o rder in Franklin Circuit Court until he filed his complaint in December 2020 , more than six years after the Personnel Board finalized the appeal

. Consequently, the c ircuit c ourt found that Thomas’s time to appeal the f

inal o rder ha d elapsed and his claims must be dismissed due to a lack of jurisdiction. Jurisdiction is a question of law, and our review is de novo. Commonwealth v. B.H. , 548 S.W.3d 238, 242 (Ky. 2018) (citati on omitted).

Now , Thomas states , “I had no means or obligation to continue appealing a ‘ no
- fault ’ termination simply to prove discrimination. I cannot be faulted for attempting to walk away from the traumatic ordeal.” While “walking away” was a legitimate personal choice, that choice now bars him fr om purs u ing these various claims against the Person nel Board and appealing the Personnel
Board’s f inal o rder. KRS 13B.140(1 ) allows 30 days to appeal a ll final orders of an agency to the appropriate circuit court

. S trict compliance under these circumstances is required. Bd. of Adjustments of City of Richmond v. Flood , 581- 7

-

S.W.2d 1, 2 (Ky. 1978)

. Thomas attempts to defend his delay by stat ing that he
did not know the f

inal o rder would be posted on the Personnel Board’s website
until his 2017 termination from Mammoth Cave. 6 However, timing aside, the Personnel Board posted that f inal o rder on its website in accordance with KRS 18A.070(5) 7 and KRS 18A.095(27)

. 8 We agree with the circuit court that “r ecords of the Personnel Board are public record. ” See KRS 18A.070(5)

. Therefore, we agree with the Franklin C ircuit C ourt that Thomas is not entitled to the relief sought and the Personnel Board’s m otion to d ismiss was properly granted.
B. Education Board
A motion to dismiss for failure to state a claim upon which relief may be granted admits as true the material facts of the complaint. So a court should not grant such a motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved

. . . . Stated another way, the court must ask if the facts alleged in the complaint can be proved, would the plaintiff be entitled to relief? Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court ’ s determination; instead, an appellate court reviews the issue de novo.

6 Albeit unnecessary, Thomas does not explain his delay between learning this in 2017 and filing his action in circuit court in late 2020.

7 “All records of the board shall be public records and open to public inspection as provided in KRS 61.870 to 61.884.” KRS 18A.070(5).

8 “ After a final decision in a contested case has been rendered by the last administrative or judicial body to which th e case has been appealed, the board shall make the decision available to the public in electronic format on its Web site and shall organize the decisions according to the statutory basis for which the appeal was based. ” KRS 18A.095(27).- 8

-

Skeens v. Univ. of Louisville , 565 S.W.3d 159, 160 (Ky. App. 2018) ( q uoting Fox

v. Grayson , 317 S.W.3d 1, 7 (Ky. 2010) )

.

The Education Board launched the Administrative Action because
Thomas failed to honestly report his prior terminations during the certification

process . Thomas ’ s failure constituted a violation of the Professional Code of Ethics for Kentucky Certified School Personnel pursuant to KRS 161.120 and 16
KAR 9 1:020

. Thomas contends that the two terminations were not valid , and
therefore he had no obligation to report them to the Education Board. Although his argument is a tangled web , it appears from the record that he is under the misconception that the Education Board mov ed forward with the review process
for reasons other than his lack of candor

. “The [Education Board] formed their derogatory charges and allegations without having sufficient knowledge to do so and refused to acknowledge the appeals were protected. I cou ld not defeat the [Education Board’s] frivolous and baseless charges

. . . . The [Education Board’s] allegations are fraudulent, no matter where they originated.” It is unclear what “baseless charges” Thomas refers to ; and it appears that he fails t o reco gnize the
error of his omission

. Despite this , after the Education Board ’s investigation, it
drafted an a greed o rder allowing Thomas to continue teaching if he completed an
ethics course , an educator preparation program, and a two

- year probationary period

9 Kentucky Adminis trative Regulation.- 9

-

without further disciplinary action. It is unclear from the record why Thomas did not sign and agree to that settlement if he wished to remain teaching

.

Thomas has not shown, in any way, that the Education Board acted in
violation of Kentucky law. The Education Board may act within KRS 161.120
when t aking d isciplinary actions relating to teaching certificates :

[T] he [ Education Board ] may revoke, suspend, or refuse to issue or renew. . . any certificate or license issued under any previous law to superintendents, principals, teachers, substitute teachers, interns, supervisors, directors of pupil personnel, or other administrative, supe rvisory, or instructional employees for . . . (i) Making, or causing to be made, any false or misleading statement or concealing a material fact in obtaining issuance or renewal of any certificate [.]
KRS 161.120 (1)

.

Additionally, Thomas challenges the circuit court’s determination that
he failed to establish a cause of action for defamation and failed to state a claim upon which relief can be granted because the Education Board is entitled to immunity. However, t he c ircuit court addressed these issues thoroughly , and, upon review, we agree with its disposition . As such, there is no need to expound upon its analysis; and accordingly, we adopt its analysis as follows:

First, the [Education Board] claims that it is entitled to immunity in this action. The Court agrees. “State agencies performing government functions are c lothed in immunity.” Jacobi v. Holbert , [553] S.W.3d 246, 254- 10

- (Ky. 2018) (citing Autry v. Western Kentucky University , 219 S.W.3d 713, 717 (Ky. 2007)). The [Education Board] correctly identified the three (3) factors set forth in Jacobi that must be used to identify if the Education Board is a state agency: (1) is the [Education Board] a legislatively

- created body; (2) is the [Education Board] performing an essential governmental function, rather than a proprietary function; and (3) is the [Education Boa rd] supported by the state treasury. Id . at 254

- 56. The [Education Board] is clearly a legislatively

- created body that is performing an essential governmental function. KRS 161.028 provides: The [Education Board] is recognized to be a public body corpo rate and politic and an agency and instrumentality of the Commonwealth, in the performance of essential governmental functions.
KRS § 161.028(1). Further, in affirmation that the [Education Board] is performing an essential governmental function, by init iating the administrative hearing process, the [Education Board] is fulfilling its statutorily mandated duties. Anyway, “[a] proprietary function is of the type normally engaged in by business or corporations and will likely include an element of conducti ng an activity for profit.” Jacobi , 533 S.W.3d at 255 ( quoting Caneyville Volunteer Fire Dept. v. Green’s Motorcycle Salvage, Inc

. , 286 S.W.3d 790, 804 (Ky. 2009) (citing Schwindel v. Meade County , 113 S.W.3d 159, 168 (Ky. 2003))). The Court agrees wit h the [Education Board] that by initiating the administrative action, giving [Thomas] due process before taking any statutorily

- authorized action against him, the [Education Board] did not engage in a proprietary function. Lastly, the state treasury suppor ts the [Education Board]. See 2020 Ky. Act ch 92. The [Education Board] is part of the Department of Education, which receives its funding from the General Fund, the Restricted Fund, and from- 11

- Federal Funds. Accordingly, the Court find s that the [Educati on Board] is entitled to immunity in this matter. Moreover, the [Education Board] reasons that [Thomas] fails to state an actionable claim for defamation. The Court agrees. The [Education Board] correctly identified the four (4) elements required to est ablish a cause of action for defamation: (a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm cause[d] by the publication.
Toler v. Süd

- Chemie, Inc ., 458 S.W.3d 276, 282 (Ky. 2014) (quoting Restatement (Second) of Torts § 558 (Am. Law Inst. 1977) )

. The [Education Board] argues that [Thomas] has failed to identity a false and defamatory statement made by the [Education Board]. Rather, the [Education Board] asserts that [Thomas] identifies statements made by former coworkers, former superiors, hearing officers, and a federal Administrative Law Judge. The [Education Board] is correct. None of these statements are attributable to the [Education Board]. Thus , [Thomas] has failed to meet the first element. [Thomas] has also failed to meet the second el ement. Administrative bodies, such as the [Education Board], that hold quasi

-

judicial powers, like the power to issue and sanction a professional license, are entitled to absolute privilege. This form of absolute privilege was- 12

- confirmed in McAlister & Co . v. Jenkins , when the former Kentucky Court of Appeals held that because the members of the real estate commission were “expressly required by law to conduct [the] hearing and make a finding, they were entitled to the exemption afforded by the rule of abs olute privilege.” 284 S.W. 88, 91 (Ky. Ct. App. 1926). The McAlister Court noted that quasi

judicial bodies have regularly been entitled to absolute privilege to their communications or publications made while exercising these powers. Id . The [Education Board] initiated the administrative action in accordance with its statutory obligation. Thus, the Court agrees that its actions are protected by absolute privilege. Because [Thomas] has failed to meet the first two (2) elements of the Toler [test] , he has failed to state a claim for defamation against the [Education Board]. Therefore , since the [Education Board] is entitled to immunity and [Thomas] has failed to state an actionable claim for defamation, the Court GRANTS the [Education Board ’s ] M oti on to D ismiss

. Accordingly, we agree with the Franklin Circuit Court that Thomas is not entitled to the relief sought and the Education Board’s motion to dismiss was properly granted.

Finally, Thomas argues that the circuit court failed to address his plethora of other claims

– harassment, retaliation, libel, slander, indecent exposure, reckless driving, humiliation, “allegations of fornication,” “illicit phone use,”
violation of the Whistleblower Act , and violation s of the Kentucky Civil Rights
Act

– but those claims are either non
- legal, frivolous, related to matters outside the- 13

-

order on appeal , and/or are against parties not named in this appeal ; and , therefore, they are beyond the scope of this review.
CONCLUSION For the foregoing reasons, we AFFIRM the Franklin Circuit Court.
ALL CONCUR

.

BRIEF S FOR APPELLANT: Christopher D. Thomas, pro se Morgantown, Kentucky BRIEF FOR APPELLEE EDUCATION PROFESSIONAL STANDARDS BOARD :
BreAnna Listermann Frankfort , Kentucky