RENDERED: SEPTEMBER 23, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-1368-MR

COMMONWEALTH OF KENTUCKY 

D/B/A KENTUCKY DEPARTMENT 

OF AGRICULTURE APPELLANT 

v. 

APPEAL FROM FRANKLIN CIRCUIT COURT

HONORABLE THOMAS D. WINGATE, JUDGE

ACTION NO. 20-CI-00659

LOWELL MCGOWAN AND 

KENTUCKY PERSONNEL BOARD APPELLEES 

OPINION

REVERSING AND REMANDING

**   **  **

BEFORE: CALDWELL, GOODWINE, AND JONES, JUDGES.

GOODWINE, JUDGE: The Kentucky Department of Agriculture (“KDA”) 

appeals from an opinion and order of the Franklin Circuit Court reversing an order 

of the Kentucky Personnel Board (“the Board”) dismissing Lowell McGowan 

(“McGowan”) from his employment. The circuit court reversed the Personnel 

Board ruling that it manifestly erred in failing to address the scoring analysis of 
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McGowan’s evaluation. After careful review, we conclude under the appropriate 

standard of review, the circuit court erred and reverse reverse and remand with 

instructions to reinstate the final order of the Kentucky Personnel Board. 

The Franklin Circuit Court summarized the relevant facts and 

procedural history as follows:

Petitioner, Lowell McGowan, was employed for 

nineteen (19) years with Respondent, Kentucky 

Department of Agriculture (“the Department”), most 

recently as an Agricultural Inspector III. Petitioner’s 

duties included applying chemicals to control weeds and 

pests in twenty-two (22) western Kentucky counties. 

Petitioner’s supervisor was Shawn Skidmore 

(“Skidmore”) for the first five months of 2018 and John 

Board (“Board”) for the remainder of the year. During

2018, Petitioner and his supervisors did not get along.

On July 3, 2018, Mark White, the Department’s Human 

Resources Director, sent Petitioner a letter advising 

Petitioner of the Department’s intent to dismiss him.

Accompanying this letter was another letter placing 

Petitioner on paid administrative leave until the 

Department’s final action. On July 24, 2018, Petitioner

appeared with counsel for a pre-termination hearing. The 

pre-termination hearing resulted in the Department 

rescinding the letter intending to dismiss Petitioner and 

instead formally reprimanding Petitioner on July 26, 

2018, with Petitioner returning to work on August 1, 

2018. 

On August 6, 2018, Petitioner received a mid-year 

review from Skidmore that detailed seventeen (l7) 

deficiencies in his job performance that year. Petitioner 

also received a Performance Improvement Plan that 

addressed the correction of the listed deficiencies, as well 

as identified five specific areas in which the Department 

felt Petitioner needed improvement. On January 23, 
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2019, Petitioner received his final performance 

evaluation for 2018 and year-end review. The 

Department noted thirteen (l3) deficiencies in Petitioner’s 

job performance and Petitioner was rated as either 

“Barely Meets Expectations” or “Fails to Meet 

Expectations” for all categories in the evaluation except 

one. The total score assigned to the evaluation was 146, 

which was in the Unacceptable category. On the same 

day, Petitioner marked the box indicating “Disagree with 

performance evaluation and request reconsideration.” On 

January 24, 2019, Board conducted a reconsideration. As 

part of the reconsideration, Petitioner had the opportunity 

to submit evidence showing that his evaluation score was 

incorrect. Petitioner submitted a handwritten note 

stating that he believed his evaluation score should be 

higher and alleged the Department was mounting a 

campaign against him. Board made no change to 

Petitioner’s evaluation. Petitioner then requested a 

reconsideration by Skidmore, who also did not make a

change to the evaluation

Pursuant to 101 Kentucky [Administrative 

Regulations] KAR 2:180 § 8, Petitioner’s unacceptable 

evaluation score required that the DOA either demote 

him or terminate him from employment. The 

Department’s Human Resources Director, Mark White, 

testified that there were no open positions commensurate 

with Petitioner’s skills and abilities, thus there were no 

jobs available for the Petitioner to be demoted. On 

February 28, 2019, Petitioner was sent another notice of 

intent to dismiss by the Department due to his evaluation 

score of 146 and Unacceptable rating. 

On April 3, 2019, Petitioner appealed his 

evaluation to the Kentucky Personnel Board (“the

Board”). On the same day, Petitioner participated in a 

pre-termination hearing with the Department’s 

appointing authority, Mark White. On April 15, 2019, 

Petitioner received a letter terminating him from his 

position. An administrative hearing took place over four 
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days in November 2019, with the burden of proof on 

Respondent to establish the correctness of the evaluation

score and whether dismissal was warranted based on 

Petitioner’s evaluation score. After briefing, the 

Personnel Board’s Hearing Officer entered Findings of 

Fact, Conclusions of Law, and a Recommended Order of

dismissal on May 4, 2019. The Hearing Officer found 

that Petitioner was given proper notice “of his actions 

creating problems making disciplinary actions necessary

to correct his poor work performance.” The Hearing 

Officer concluded that, by a preponderance of the 

evidence, Petitioner’s dismissal was appropriate.

On July 15, 2020, the Board issued its Final Order, 

altering the Hearing Officer’s Findings of Fact, 

Conclusions of Law, and Recommended Order. The 

Board altered some of the Hearing Officer’s Summary of 

the Evidence and concluded that the Department “proved 

by a preponderance of the evidence that [Petitioner] was 

properly evaluated.” Additionally, the Board found that 

“the evaluation score of 146 was supported by the 

evidence and [Petitioner’s] work was ‘Unacceptable.’” 

Thus, the Board concluded that Petitioner’s dismissal 

was neither excessive nor erroneous and dismissed his 

appeal. Petitioner timely appealed to this Court.

Record (“R.”) at 184-86 (footnotes omitted). 

On July 13, 2021, the circuit court entered an opinion and order 

holding “the Board’s Final Order is supported by substantial evidence in the 

record.” R. at 189. Thus, the circuit court initially affirmed the final order of the 

Board and made the order final and appealable. 

McGowan subsequently filed a motion to alter, amend, or vacate the 

circuit court’s order. The KDA opposed the motion. On September 30, 2021, the 
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circuit court entered an order vacating its July 13, 2021, order and remanding the 

matter to the Board for an additional hearing. The circuit court determined it 

“overlooked the absence of scoring analysis in the record and certain other 

discrepancies between the dismissal letter sent to [McGowan] and evidence relied 

upon by Respondents.” R. at 246. Thus, the circuit court determined it manifestly 

erred in entering its prior order and remanded the case to the Board “for an 

additional hearing that considers that scoring of [McGowan’s] evaluation.” R. at 

247. 

The Board then moved to alter, amend, or vacate the circuit court’s 

September 30, 2021, order, arguing the circuit court operated “in excess of its 

statutory authority under [Kentucky Revised Statute] KRS 13B.150.” R. at 256. 

On October 27, 2021, the circuit court entered an order denying the Board’s 

motion, but it clarified it remanded the matter to the Board pursuant to its authority 

under KRS 13B.150. The circuit court further found the Board’s final order was 

“arbitrary due to [its] failure to consider the scoring issues raised by [McGowan].” 

R. at 256. This appeal followed. 

On appeal, the KDA argues the circuit court: (1) abused its discretion 

in granting McGowan’s motion to alter, amend, or vacate; and (2) erred in ordering 

the Board to act outside the scope of its statutory authority on remand. 
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We apply the following standard of review in addressing the KDA’s

arguments: 

When reviewing the action of an administrative 

agency, a court is concerned with whether the agency’s 

action was arbitrary, which is defined as “clearly 

erroneous”; clearly erroneous means not supported by 

substantial evidence. “Substantial evidence” is evidence 

which, when taken alone or in light of all the evidence, 

has sufficient probative value to induce conviction in the 

minds of reasonable persons.

In reviewing whether an agency’s decision is 

supported by substantial evidence, the reviewing court 

must adhere to the principle that the agency, as fact 

finder, is afforded great latitude in its evaluation of the 

evidence heard and the credibility of the witnesses 

appearing before it. In addition to the principles 

established by case law, the judicial review process of 

Kentucky’s administrative procedures act at KRS 

13B.150(2) circumscribe the scope of judicial review of 

factual determinations made in an agency’s due process 

hearing, as follows: “The court shall not substitute its 

judgment for that of the agency as to the weight of the 

evidence on questions of fact.” What constitutes cause 

for dismissing a merit employee is a fact question for 

determination by the Personnel Board. 

. . . .

An administrative agency’s interpretation of its 

own regulations is entitled to substantial deference. A 

reviewing court is not free to substitute its judgment as to 

the proper interpretation of the agency’s regulations as 

long as that interpretation is compatible and consistent 

with the statute under which it was promulgated and is 

not otherwise defective as arbitrary or capricious.
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Hughes v. Kentucky Horse Racing Authority, 179 S.W.3d 865, 871-72 (Ky. App. 

2004) (footnotes omitted). 

First, the KDA argues the circuit court abused its discretion in 

granting McGowan’s motion to alter, amend, or vacate. More specifically, the 

KDA argues it should be an abuse of discretion for the circuit court, having 

previously found substantial evidence in the record supporting a final agency 

decision, to grant a Kentucky Rule of Civil Procedure (“CR”) 59.05 motion on the 

basis that there is not substantial evidence in the record.

In reviewing the Board’s final order, the circuit court was bound by 

KRS 13B.150, which provides:

(1) Except as provided in KRS 452.005, review of a final 

order shall be conducted by the court without a jury and 

shall be confined to the record, unless there is fraud or 

misconduct involving a party engaged in administration 

of this chapter. The court, upon request, may hear oral 

argument and receive written briefs. Challenges to the 

constitutionality of a final order shall be reviewed in 

accordance with KRS 452.005.

(2) The court shall not substitute its judgment for that of 

the agency as to the weight of the evidence on questions 

of fact. The 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;
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(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.

In its order granting McGowan’s motion to alter, amend, or vacate, 

the circuit court found its initial order was based on a manifest error of fact. 

Guillon v. Guillon, 163 S.W.3d 888, 893 (Ky. 2005). In its order denying the 

KDA’s motion to alter, amend, or vacate, the circuit court further found the 

Board’s findings of fact were arbitrary because it failed to consider the scoring 

issues raised by McGowan.

Despite the circuit court’s determination that the Board did not 

consider the scoring of McGowan’s evaluation, our review of the Board’s final 

order shows the Board did consider the validity of the evaluation in reaching its 

decision. The Board did not parse out each of the duties and expectations. 

However, based on our review of McGowan’s 2018 annual performance evaluation 
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and the Board’s final order, the Board addressed each item in the evaluation and 

supported its conclusions with his supervisors’ testimony. In its final order, the 

Board discussed the evidence supporting McGowan’s evaluation score. The 

following is a summary of the Board’s findings: “McGowan did not follow the 

work plan that was detailed for him by his supervisors and did not inform them in a 

timely manner of the difficulties he encountered in performing his duties. While 

McGowan performed some work duties, . . . he did not communicate with his 

supervisors so that they would know what he was doing.” R. at 28-29. The Board 

further found, “McGowan did not accept either Skidmore or Board as his 

supervisor and insisted on doing things the way he had done in the past. He did 

not respond to his supervisors and did not meet work deadlines.” R. at 29. Based 

on these findings, the Board concluded, the KDA “proved by a preponderance of 

the evidence that McGowan failed to meet expectations with respect to these parts 

of his evaluation, based on the testimony of Shawn Skidmore and John Board,” 

and documentary evidence. R. at 30. The Board, as fact finder, had great latitude 

to evaluate the evidence before it, and we will not substitute our judgment for the 

Board’s. The Board clearly carefully considered the testimony and documentary 

evidence presented, and its final order was based on substantial evidence and was 

not arbitrary. Thus, based on the evidence presented, McGowan’s evaluation score 
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was supported by substantial evidence, and dismissal was appropriate under 101 

KAR 2:180 § 8.

Because we held the circuit court abused its discretion in determining 

the Board’s final order was not supported by substantial evidence, we need not 

address the KDA’s remaining argument that the circuit court ordered the Board to 

act outside the scope of its statutory authority. 

For the foregoing reasons, we reverse the order of the Franklin Circuit 

Court and remand with instructions to reinstate the final order of the Kentucky 

Personnel Board.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Joseph A. Bilby

Nicole T. Liberto

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Paul F. Fauri

Frankfort, Kentucky