RENDERED: AUGUST 19, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of 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 STANDARDS

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.
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Professional Standards 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). Additionally, 

we appreciate “the importance of hearing cases on the merits and preserving the 

constitutional right to an appeal[.]” Ky. Farm Bureau Mut. Ins. Co. v. Conley, 456 

S.W.3d 814, 818 (Ky. 2015). Therefore, we have done our best to find all 

applicable legal arguments and to discover the relevant facts. However, our 

review is limited to the specific order on appeal as it relates 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”)2in 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, he 

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, “Have 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 application 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 KRS3 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 Action, the 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 stated that the 

3 Kentucky Revised Statute. 
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charges were dismissed without disciplinary 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 

March 2021, the circuit court held a hearing4 on the matter, and in April the 

Franklin Circuit Court addressed all open motions. The circuit court: a) granted

the Personnel Board’s motion to dismiss; b) granted the Education Board’s motion 

to dismiss; c) denied Thomas’s motion to amend the complaint; d) denied his 

motion to dismiss the Education Board’s Administrative Action; and e) denied his 

motion for extension of time. 

ANALYSIS

On appeal, Thomas argues numerous 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, it appears 

Thomas is challenging the circuit court order as it relates to the two granted 

motions to dismiss; 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. 
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A. Personnel Board

We agree with the circuit court that “[i]t is difficult to ascertain what 

specific claims” Thomas is arguing but it appears that he is “taking issue with the 

July 16, 2014, Final Order issued by the Personnel Board and making arguments 

related to its validity and publication.”5 More specifically, it appears Thomas is 

suing the Personnel Board because the online 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 final order of the Personnel Board. 

After Thomas’s 2013 termination, he filed his Forestry Appeal based 

on gender discrimination. Due process was satisfied: after proper notice and a 

hearing, the Personnel Board’s final order determined that Thomas failed to 

establish that gender discrimination 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 

fifteen (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 specifically 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 final order affirmed – with one alteration – the findings of fact, conclusions 

of law, and recommended order of the hearing officer dated May 19, 2014 (“May Order”).
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. . . . 

Each Party has thirty (30) days after the date the Personnel 

Board issues a Final Order 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. 

Neither did he contest the final order 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 circuit court found that Thomas’s time to 

appeal the final order had 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) (citation 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 from pursuing 

these various claims against the Personnel Board and appealing the Personnel 

Board’s final order. 

KRS 13B.140(1) allows 30 days to appeal all final orders of an 

agency to the appropriate circuit court. Strict compliance under these 

circumstances is required. Bd. of Adjustments of City of Richmond v. Flood, 581 
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S.W.2d 1, 2 (Ky. 1978). Thomas attempts to defend his delay by stating that he 

did not know the final order 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 final order on its website in accordance with KRS 

18A.070(5)7and KRS 18A.095(27).

8

 We agree with the circuit court that “records 

of the Personnel Board are public record.” See KRS 18A.070(5). Therefore, we 

agree with the Franklin Circuit Court that Thomas is not entitled to the relief 

sought and the Personnel Board’s motion to dismiss 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 the 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).
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Skeens v. Univ. of Louisville, 565 S.W.3d 159, 160 (Ky. App. 2018) (quoting 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 

KAR9 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 moved 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 could 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 to recognize the 

error of his omission. Despite this, after the Education Board’s investigation, it 

drafted an agreed order allowing Thomas to continue teaching if he completed an 

ethics course, an educator preparation program, and a two-year probationary period 

9 Kentucky Administrative Regulation.
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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 taking disciplinary 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, 

supervisory, 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, the circuit 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 clothed in 

immunity.” Jacobi v. Holbert, [553] S.W.3d 246, 254 
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(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 

Board] 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 corporate 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 initiating 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 

conducting 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 with 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 supports 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 
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Federal Funds. Accordingly, the Court finds that the 

[Education 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 establish 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 element. 

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 
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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 absolute privilege.” 284 S.W. 88, 91 (Ky. Ct. 

App. 1926). The McAlister Court noted that quasijudicial 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] 

Motion to Dismiss.

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 violations of the Kentucky Civil Rights 

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

BRIEFS FOR APPELLANT:

Christopher D. Thomas, pro se

Morgantown, Kentucky

BRIEF FOR APPELLEE

EDUCATION PROFESSIONAL 

STANDARDS BOARD:

BreAnna Listermann

Frankfort, Kentucky