RENDERED: DECEMBER 4, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1815-MR

LEXINGTON-FAYETTE URBAN 

COUNTY GOVERNMENT APPELLANT 

v. 

APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE JOHN E. REYNOLDS, JUDGE

ACTION NO. 18-CI-03551 

JOHN LOWE AND FRATERNAL 

ORDER OF POLICE TOWN BRANCH 

LODGE #83 

\

APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND JONES, JUDGES.

COMBS, JUDGE: Lexington-Fayette Urban County Government (LFUCG) 

appeals the denial of its motion to dismiss and the summary judgment of the 

Fayette Circuit Court entered in favor of John Lowe and Fraternal Order of Police 

Town Branch Lodge #83 (FOP) on November 21, 2019. The circuit court 

concluded that LFUCG breached the terms of the parties’ collective bargaining 
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agreement when it placed Lowe on leave without pay following his arrest in June 

2014 and later dismissed him from service. After our review, we affirm. 

The facts are undisputed. Lowe was hired as a community corrections 

officer by LFUCG in November 2002. He was promoted to sergeant in December 

2012. He worked at the Fayette County Detention Center processing inmates. He 

was a member of FOP. LFUCG and FOP executed collective bargaining 

agreements. One of the agreements was effective between February 2012 and 

February 2016; the other between November 2015 and November 2019. 

On June 5, 2014, Lowe was arrested based on allegations that on three 

occasions, he sodomized and sexually abused his seven-year-old stepdaughter. He 

was booked into the Fayette County Detention Center. 

On this date, Major James Kammer, Bureau Manager, Division of 

Community Corrections, advised Lowe in writing that he was recommending 

Lowe’s dismissal based on the acts of moral turpitude and the pending criminal 

charges against him. In a memorandum acknowledged by Lowe, Kammer notified 

Lowe that he was also being placed immediately on leave without pay pending 

termination proceedings. Lowe’s sworn authority was withdrawn. Pursuant to the 

terms of the parties’ collective bargaining agreement and within 24 hours from the 

date of his booking, he was advised that he could request a meeting with the 
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director of Community Corrections for the purpose of presenting “your side of the 

matter along with any materials you wish to provide.” 

On June 6, 2014, Lowe’s criminal defense attorney corresponded with 

Kammer. Defense counsel indicated that he also represented Lowe with respect to 

his employment status with LFUCG. Counsel informed Kammer that Lowe denied 

the criminal allegations made against him and that he objected to any change in his 

employment status. Lowe specifically objected to being placed on leave without 

pay and the recommendation that he be dismissed from service. Finally, counsel 

advised that Lowe “would be glad to appear for a hearing or a meeting . . . .” 

LFUCG’s counsel responded to Lowe’s counsel by letter dated June 

10, 2014. LFUCG reiterated that Lowe’s law enforcement authority had been 

withdrawn pursuant to the terms of the parties’ collective bargaining agreement. 

LFUCG indicated that as a consequence of the withdrawal of his sworn authority, 

Lowe could not report for duty and that he would remain on administrative leave 

without pay until the criminal charges were resolved. LFUCG reported that an 

internal affairs investigation had been initiated but that it would be held in 

abeyance until the criminal matter had been resolved unless other information 

came to light. Lowe was cautioned that his conviction would result in dismissal. 

Finally, LFUCG advised that “[t]he current status of this matter does not require 
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that Sergeant Lowe meet with Director Ballard (or his designee), but Director 

Ballard is willing to have such a meeting if Sergeant Lowe so desires.” 

On November 23, 2015, Lowe was indicted for two counts of sodomy, 

first degree (Class A felonies) and one count of sexual abuse, first degree (a Class 

C felony). Nearly two years later, on October 18, 2017, Lowe entered a plea 

pursuant to the standard announced by the U.S. Supreme Court in North Carolina

v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) to three counts of 

unlawful transaction with a minor, third degree (Class A misdemeanors). Final 

judgment convicting Lowe of the amended charges was entered, and Lowe was 

sentenced by the Fayette Circuit Court to time served.

On October 26, 2017, a memorandum -- marked as though it would be 

circulated to Lowe -- was prepared by Steven Haney, Director, Division of 

Community Corrections. The memorandum indicated that based upon his guilty 

plea to the charges against him, Lowe was dismissed from his employment as of 

that date. Lowe was instructed to return his facility equipment to the training 

department. This memorandum was not initially transmitted to Lowe or to his 

lawyer, nor was it transmitted to FOP. Haney also executed a personnel action 

request, effective October 26, 2017, which officially terminated Lowe for 

misconduct under Section 8(c) of the Uniform Disciplinary Code. Lowe was not 

informed of this official personnel action. 
-5-

Unaware of either the memorandum or the personnel action, Lowe’s 

new attorney corresponded with Director Haney on November 2, 2017. Counsel 

recounted Lowe’s suspension pending resolution of the criminal matter. He 

advised that the criminal matter had been resolved and that Lowe intended to 

return to his duties on Monday, November 6, 2017. Counsel also requested 

backpay that had been accruing since Lowe’s suspension on June 5, 2014. 

On November 4, 2017, counsel for Lowe corresponded again with 

Haney. Counsel related that he had learned of Lowe’s termination during an 

unrelated grievance hearing just the day before. He demanded Lowe’s immediate 

reinstatement. Counsel indicated that in his memorandum of June 5, 2014, Major 

Kammer had “improperly represented the disciplinary process and the employment 

status of officers having pending criminal charges under the 2012 Collective 

Bargaining Agreement and LFUCG Corrections polices.” Counsel indicated that 

there was no provision for administrative leave without pay under the terms of the 

parties’ agreement and that LFUCG had failed to deliver to Lowe a disciplinary 

action form providing notice of the proposed discipline and an opportunity for a 

hearing before the leave was imposed. 

On November 6, 2017, LFUCG responded. It informed counsel that 

Lowe’s failure to file a grievance pursuant to the terms of the parties’ collective 

bargaining agreement meant that Lowe had accepted the initial employment action,
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i.e., on leave without pay. Moreover, since Lowe’s conviction involved an abuse 

of his position of authority over another in his care, LFUCG viewed him as 

unqualified to fulfill his duties as a corrections officer. Citing provisions of the 

parties’ collective bargaining agreement and the Division of Community 

Corrections Policy and Procedure manual, LFUCG advised that Director Haney 

recommended Lowe’s dismissal. LFUCG documented that upon the request of 

FOP, Lowe’s counsel had agreed to accept written notice of Lowe’s termination. 

LFUCG reminded counsel that Lowe had five (5) calendar days to schedule a 

meeting with Director Haney regarding the termination. On November 8, 2017, 

the internal affairs investigation was completed based upon the entry of the 

judgment of conviction. Lowe executed a FOP grievance report form on 

November 9, 2017. 

 On November 14, 2017, John W. Maxwell, LFUCG’s director of 

human resources, corresponded with Lowe’s counsel. Maxwell denied that 

LFUCG had acted outside its authority when it placed Lowe on leave without pay

following his arrest on felony charges. He indicated that “Lowe and [FOP] had 10 

days to file a grievance from his notification of being on unpaid leave if he felt 

such action was unfair.” Having failed to do so, Maxwell opined that they were 

not authorized to do so now. With respect to Lowe’s dismissal, Maxwell indicated 
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that he had been terminated pursuant to an express provision of the Policy and 

Procedure Operations Manual. Maxwell denied the grievance. 

Pursuant to provisions of the parties’ collective bargaining agreement 

and Lowe’s written request delivered two days after Maxwell denied the grievance, 

the dispute was set for non-binding arbitration. A hearing was conducted on June 

30, 2018. The arbitrator received evidence, heard testimony, and considered the 

written and oral arguments of counsel. On August 31, 2018, an advisory decision 

was entered. 

The arbitrator determined that Lowe had failed to timely file a 

grievance in accordance with the express provisions of the parties’ collective 

bargaining agreement concerning LFUCG’s decision to put him on leave without 

pay. The arbitrator also determined that Lowe had failed to file a timely grievance 

with respect to his dismissal. Consequently, the arbitrator concluded that issues 

related to LFUCG’s decision to place Lowe on leave without pay -- and later to 

terminate his employment -- were not arbitrable under the terms of the parties’

collective bargaining agreement. 

On October 10, 2018, Lowe and FOP filed an action against LFUCG 

in Fayette Circuit Court for breach of contract. They alleged that LFUCG had 

placed Lowe on leave without pay and then dismissed him in contravention of the 

express terms of the parties’ collective bargaining agreement. They sought Lowe’s 
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reinstatement and recovery of his backpay; the value of his accrued vacation and 

holiday pay; and attorneys’ fees and costs. 

Without filing an answer, LFUCG filed a motion to dismiss. LFUCG 

argued that the terms of the parties’ collective bargaining agreement provided the 

sole and exclusive means of resolving their disputes culminating in the arbitration 

process. Having exercised their right to participate in arbitration, LFUCG 

contended that Lowe and FOP had exhausted their exclusive remedy and that the 

circuit court lacked authority to consider the claims asserted. Lowe and FOP 

denied that the parties’ collective bargaining agreement foreclosed their access to 

the courts. They argued that its terms merely required exhaustion of their 

contractual remedies before either party could seek judicial relief. 

By its order entered December 14, 2018, the circuit court denied the 

motion to dismiss. LFUCG answered the complaint and denied liability. The 

circuit court denied a subsequent motion filed by LFUCG to hold the matter in 

abeyance. 

On September 3, 2019, Lowe and FOP filed a motion for summary 

judgment. They argued that LFUCG had breached the unambiguous terms of the 

parties’ 2012 collective bargaining agreement when it placed Lowe on leave 

without pay. They contended that the only provision of the 2012 agreement related 

to a member’s suspension from pay distinguished a suspension from pay from a 
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suspension from law enforcement power and reserved to LFUCG only the right to 

suspend a member’s law enforcement powers during the course of an investigation. 

The more recently negotiated collective bargaining agreement of 2015 specifically 

authorized LFUCG to place a member charged with a crime on a leave of absence 

without pay. However, the 2012 contract governing Lowe’s leave of June 2014 

plainly did not. Lowe and FOP contended that Lowe was entitled to recover the 

value of his wages and benefits due between June 5, 2014, and October 26, 2017,

as a matter of law. 

Lowe and FOP also argued that LFUCG violated the provisions of the 

collective bargaining agreement by dismissing Lowe without notice of the 

proposed discipline. Pursuant to Article 14, Section 4 of the 2015 collective 

bargaining agreement, “[d]isciplinary actions of suspension or dismissal shall be 

initiated by the delivery of proposed disciplinary action to a member.” Lowe and 

the FOP contend that Lowe’s due process rights under the agreement were not 

triggered by Director Haney’s summary dismissal of October 26, 2017. Because 

the lack of notice and summary dismissal directly violated the terms of the parties’

agreement, Lowe and FOP argued that Lowe was entitled to reinstatement and an 

award of backpay and benefits from October 26, 2017. 

Additionally, Lowe and FOP contended that LFUCG breached the 

terms of the collective bargaining agreement by failing to conduct a disciplinary 
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hearing before Lowe was dismissed on October 26, 2017. They cited Article 14, 

Section 4 of the 2015 collective bargaining agreement, which provides in 

mandatory language that the director “shall meet with the member, and if 

requested, a Lodge representative” where “the member shall be advised of the level 

of discipline proposed to be issued.” The member and/or the Lodge representative 

“shall be given the opportunity to present the member’s side of the matter and any 

materials relating to the violation he wants the Director to consider prior to issuing 

discipline.” Lowe recounted that neither he nor the FOP was aware of Lowe’s 

dismissal until eight days after Director Haney executed the termination notice 

and personnel action request. Lowe was not provided an opportunity to explain the 

circumstances of his arrest nor the basis of his Alford plea before he was dismissed. 

He was not afforded an opportunity to present favorable evidence -- including the 

results of two polygraph examinations. Lowe and FOP argued that Lowe was 

entitled to judgment as a matter of law to include his reinstatement and an award of 

backpay and benefits since October 26, 2017, on this basis as well. 

Next, Lowe and FOP argued that LFUCG dismissed Lowe without 

just cause in violation of industrial due process principles. They argued that the 

internal affairs division did not conduct an adequate investigation and that the 

report was not available for review by Director Haney for more than ten days 

following his decision to dismiss Lowe. 
-11-

Finally, Lowe and FOP contended that LFUCG failed to reimburse 

Lowe for accrued vacation, holiday, and sick leave. They argued that Lowe was 

entitled to recover these benefits as a matter of law. 

LFUCG filed a response and a competing motion for summary 

judgment on September 27, 2019. LFUCG again argued that the exclusive remedy 

for the violation of any of the terms of the parties’ collective bargaining agreement 

is the grievance procedure outlined in the contract. It asserted that despite the nonbinding nature of the arbitration proceedings, the proceedings had provided Lowe 

with all the process required by the terms of the agreement and that the court 

lacked authority to entertain his complaint. LFUCG argued that it was entitled to 

judgment as a matter of law upon this basis. 

LFUCG also argued that the grievance was not timely initiated. 

LFUCG explained that the terms of the parties’ collective bargaining agreement 

provided that grievances “shall, within ten (10) days of the grieved event, be 

presented to the Bureau Manager (Major).” It noted that Lowe had been 

suspended without pay on June 5, 2014, but he failed to file a grievance until 

November 9, 2017 -- years after the deadline had passed. With respect to the 

agreement’s provision concerning a mandatory meeting with the director prior to 

the imposition of a disciplinary measure, LFUCG argued that if a member fails to 

attend the meeting, “discipline shall be issued and shall be final” pursuant to the 
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provisions of the collective bargaining agreement. LFUCG cited the written notice 

from counsel for LFUCG dated June 10, 2014, which reiterated that Lowe would 

remain on administrative leave without pay until the criminal charges were 

resolved and that he would be dismissed if convicted. LFUGG claimed that that 

notice constituted a final decision and that the time for Lowe to file a grievance 

with respect to his dismissal expired on June 21, 2014. Referring again to the 

arbitration decision rendered on August 31, 2018, LFUCG argued that the 

arbitrator’s conclusion that the grievance was untimely was entitled to deference. 

Additionally, LFUCG argued that it was entitled to judgment because 

it had complied with each of the relevant provisions of the collective bargaining 

agreement. It contended that Major Kammer’s memorandum of June 5, 2014,

indicating that Lowe was being placed immediately on unpaid leave and 

recommending Lowe’s dismissal, constituted the delivery of proposed discipline 

required by the terms of the parties’ collective bargaining agreement. It argued 

that the responsibility for the failure of the director to host a meeting after delivery 

of the proposed discipline as mandated by the agreement “falls squarely on 

[Lowe].” It claimed that Lowe’s misdemeanor convictions established just cause 

for his dismissal. 

Finally, LFUCG contended that Lowe had received all the 

compensation to which he was entitled. It argued that Lowe was not entitled to 
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accumulate sick or vacation time under the provisions of the employee handbook 

because his leave without pay had lasted for more than one month. It also argued 

that the arrears that had accumulated with respect to his contribution toward 

medical, dental, and vision benefits exceeded the value of the sick and vacation 

leave that he had accumulated prior to his dismissal.

Lowe and FOP filed a timely reply in support of their motion for 

summary judgment. They denied that the court lacked authority to entertain the 

action. They argued that the grievance filed on November 9, 2017, was timely 

because it was filed within seven (7) days of the grieved event. They argued that 

the grievance also timely challenged Lowe’s dismissal of November 3, 2017. 

They cited deposition testimony of Director Haney admitting that the grievance 

had been timely filed. Lowe and FOP challenged LFUCG’s assertion that the 

burden of scheduling a discipline hearing before he was dismissed on October 26, 

2017, fell to Lowe. They also rejected LFUCG’s reliance upon the provisions of 

the employee handbook because the handbook referred only to voluntary

administrative leave, predated the collective bargaining agreement, and was 

superseded by it. Lowe and FOP denied that LFUCG could collect the alleged 

arrearages connected with his healthcare benefits because it had failed to file a 

counterclaim. 
-14-

In an opinion and order entered on November 21, 2019, the Fayette 

Circuit Court determined that the lawsuit had been filed pursuant to the provisions 

of KRS1 67A.6908 authorizing legal actions for violation of agreements between 

an urban-county government and a labor organization representing corrections

personnel to be brought by the parties to the agreement in circuit court. It 

concluded that the terms of the parties’ 2012 collective bargaining agreement did 

not contemplate the imposition of leave without pay as a disciplinary measure and 

that LFUCG breached the agreement by placing Lowe on administrative leave 

without pay from June 5, 2014, through October 26, 2017. It also concluded that 

LFUCG failed to provide Lowe with an adequate opportunity to present his side of 

the matter before he was dismissed on October 26, 2017, in contravention of the 

doctrine of industrial due process. The court gave an excellent summary of the 

pertinent labor law as follows: 

Under Article 14, Section 1 of the 2015 [collective 

bargaining agreement] “LFUCG has a right to discipline 

members only for just cause.” Just cause is a legal term 

of art that has a unique meaning in the labor relations 

context. Griffith v. Fed. Labor Relations Auth., 842 F2d

487, 498 (D.C. Cir. 1988). Just cause requires that 

certain procedural due process requirements are met. See

F. Elkouri & E. Elkouri, How Arbitration Works, 967-68 

(6th ed. 2003). This has developed into a doctrine of 

industrial due process which requires management[:] (1) 

give the employee “adequate opportunity to present his 

or her side of the case before being discharged,” and (2) 

 

1 Kentucky Revised Statutes. 
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“conduct a reasonable inquiry or investigation before 

asserting punishment.” Id. at 967, 969.

Order Granting Summary Judgment, p.4. (Page 1037 of the record.)

 The court granted summary judgment in favor of Lowe and FOP and 

awarded Lowe the value of his wages and benefits between June 5, 2014, and 

October 26, 2017, as well as backpay and the value of his benefits since October 

26, 2017. This appeal followed.

On appeal, LFUCG argues that the Fayette Circuit Court erred by 

failing to grant its motion to dismiss and by granting summary judgment in favor 

of FOP and Lowe. It presents four arguments. First, it contends that Lowe has no 

recourse to the courts because his employment with LFUCG is governed by the 

parties’ collective bargaining agreement, which provides that his sole remedy for 

an alleged breach of his contractual rights is the grievance procedure set out in the 

agreement. Second, LFUCG argues that the circuit court erred by concluding that 

Lowe was not afforded an opportunity to present his side of the matter as mandated 

by the terms of the parties’ collective bargaining agreement. Third, LFUCG also 

contends that the circuit court erred by failing to address the timeliness of the 

grievance as it related to its decision to place Lowe on leave without pay. Fourth, 

LFUCG argues that the court erred by concluding that Lowe was entitled to 

damages. We shall address the issues in the order in which they were presented. 
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LFUCG argues first that the circuit court was without authority to 

entertain an action based on the alleged breach of the terms of the parties’

collective bargaining agreement. We disagree.

Circuit courts exist by virtue of Section 109 of the Constitution of 

Kentucky, and they are vested with general jurisdiction. Section 112(5) of the 

Kentucky Constitution grants circuit courts “original jurisdiction of all justiciable 

causes not vested in some other court.” See also KRS 23A.010 and Gordon v.

NKC Hosps., Inc., 887 S.W.2d 360 (Ky. 1994). The action filed by Lowe and FOP 

involves an ordinary claim for breach of contract to be heard in the circuit court. 

However, LFUCG submits that the claims of Lowe and FOP are to be evaluated 

exclusively under the grievance procedure provisions of the collective bargaining 

agreements. Thus, LFUCG appears to mount a challenge to the particular-case 

jurisdiction of the circuit court.

LFUCG concedes that procedures related to the discipline of a 

member are specifically outlined by the provisions of the agreements, including

notice of any proposed discipline; an opportunity to meet with the director of 

human resources prior to a discipline decision; the ability to file a grievance based 

upon the disciplinary decision; and the option of submitting the dispute to nonbinding arbitration. However, it highlights language included in the collective 

bargaining agreement indicating that “[a]ny dispute concerning the interpretation 
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or application of an express provision of this agreement shall be subject 

exclusively to this grievance procedure”; and that “[t]he procedure contained in 

this article is the sole and exclusive means of resolving all disciplinary actions 

and/or grievances arising under this Collective Bargaining Agreement”; and that 

“[t]he grievance and arbitration provision shall be the sole remedy for all 

grievances which are qualified subject matter for arbitration.” It contends that 

provisions of the agreements relating to disciplinary disputes afford members 

procedural due process and that the agreements’ exclusivity language forecloses 

Lowe’s access to the courts following a non-binding arbitration decision. It cites 

our decision in River City Fraternal Order of Police Lodge 614, Inc., v. 

Louisville/Jefferson County Metropolitan Government, 585 S.W.3d 258 (Ky. App. 

2019), in support of its position.

The facts recited in River City indicate that Officer Kristin Shaw was 

dismissed following her off-duty physical altercation with another law enforcement 

officer. Shaw challenged her dismissal. In a separate proceeding, FOP challenged 

the government’s dismissal procedure, arguing that it had breached provisions of 

the parties’ collective bargaining agreement. The agreement provided, in relevant 

part, that “[a]ny controversy between Metro Government and [FOP] concerning 

the meaning and application of any provisions of this Agreement shall be adjusted 

in the manner set out below.” It continued as follows: “The [FOP] or any Member 
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may file a grievance and shall be afforded the full protection of this agreement[.]” 

River City, 585 S.W.3d at 263 (emphasis omitted). 

FOP submitted its breach-of-contract claims against the government 

to “advisory arbitration” as permitted by the agreement’s provisions. The parties 

selected an arbitrator and an evidentiary hearing was conducted. The arbitrator 

was asked to evaluate the government’s decision to present a chart of Shaw’s entire 

disciplinary history to the chief of police before she was dismissed and to the 

Louisville Metro Police Merit Board before it concluded its review of the 

dismissal. 

 Following the hearing, the arbitrator concluded that the government 

had breached provisions of the collective bargaining agreement by presenting 

Shaw’s entire disciplinary record to the decision-makers. The arbitrator stated that 

a review of Shaw’s entire disciplinary record included a review of stale 

disciplinary action. He indicated that such a review may have tainted the decision 

to dismiss her. In his opinion, the arbitrator proposed that the government should 

stop providing stale disciplinary information to the chief of police and to the merit 

board in future proceedings. He also stated that “consideration for mitigating this 

discharge to the lesser penalty of suspension would be appropriate.” Id. In 

deference to the opinion of the arbitrator, the government did consider reducing 
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Shaw’s termination to suspension -- but decided against it. FOP then filed an 

action in Jefferson Circuit Court.

In circuit court, the government moved to dismiss, arguing that the 

court lacked jurisdiction to consider Shaw’s termination because the disciplinary 

action was being considered in a separate proceeding in a different division of 

circuit court pursuant to an express provision in the collective bargaining 

agreement. The Jefferson Circuit Court concluded that the government had 

complied with the arbitrator’s suggestions and that the terms of the parties’

collective bargaining agreement gave the merit board sole authority to resolve all 

disciplinary disputes between FOP members and the government. It dismissed the 

complaint. 

On appeal, we considered the merits of the dispute. We rejected 

FOP’s argument that the circuit court was bound to accept the decision of the 

arbitrator because to do so would, in effect, convert advisory arbitration to binding 

arbitration in contravention of the terms of the parties’ collective bargaining 

agreement. We held that an appeal to circuit court “must be more than the rubber 

stamp of an ‘advisory arbitration opinion and award[,]’” and we affirmed the 

decision of the circuit court. 585 S.W.3d at 267. 

LFUCG argues that the “River City [collective bargaining agreement] 

contains nearly identical language making advisory arbitration the exclusive 
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remedy for a contract violation as the [agreement] in contention here.” It contends 

that our decision in River City stands for the proposition that FOP may agree to an 

advisory arbitration process that would thereby deprive the courts of authority to 

entertain a civil action aimed at reviewing the process, prospectively foreclosing a 

member’s access to the courts. That is clearly not the holding of River City. Nor is 

it in harmony with Section 112(5) of the Constitution of Kentucky as noted earlier 

in this opinion. 

Our review in River City included a consideration of the matter on its 

merits. We did not hold that the circuit court lacked particular-case jurisdiction or 

that it was deprived of authority to entertain the breach-of-contract action based on 

the parties’ agreement to submit their disputes to non-binding arbitration. The 

circuit court’s conclusion that FOP was not entitled to a judicial remedy on the 

merits did not mean that it was not entitled to seek one. Our decision did not 

foreclose FOP’s right to pursue a remedy in the courts. Consequently, our holding 

in that case is irrelevant to LFUCG’s claim on this point. 

The parties’ collective bargaining agreements do provide variously:

that disputes concerning the interpretation or application of an express provision of 

the agreement is subject exclusively to the grievance procedure; that the grievance 

procedure is the exclusive means by which disciplinary disputes can be resolved; 

and that the grievance and arbitration provisions are the exclusive remedy for all 
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grievances. However, these provisions are generally construed as exhaustion-ofadministrative-remedies provisions and not as restrictions on a parties’ access to 

the courts. See Jenkins v. South Bend Community School Corp., 982 N.E.2d 343

(Ind. Ct. App. 2013) (despite the “exclusive remedy” provision of the parties’

collective bargaining agreement, the advisory nature of the arbitrator’s award 

allows the non-prevailing party to reject the award, triggering judicial review); 

Shorey v. Jefferson County School Dist. No. R-1, 807 P.2d 1181 (Colo. Ct. App. 

1990), aff’d, 826 P.2d 830 (Colo. 1992) (a collective bargaining agreement 

containing a grievance procedure which provides for advisory arbitration cannot be 

interpreted so as to limit a grievant to advisory arbitration as her exclusive 

remedy).

Moreover, the provisions of KRS 67A.6908(3) declare expressly that 

an action for breach of agreements between an urban-county government and a 

labor organization representing corrections personnel may be brought by the 

parties to the agreements in circuit court. Article 2 of the parties’ 2015 collective 

bargaining agreement provides that the agreement “is subject and subordinate to all 

applicable statutes . . . .” 

Finally, we are not at all persuaded that the grievance provisions of 

the collective bargaining agreements between FOP and LFUCG constitute a 

specific and unambiguous waiver of Lowe’s individual right to a judicial forum. 
-22-

Section 14 of the Constitution of Kentucky provides that “[a]ll courts shall be 

open, and every person for an injury done him in his lands, goods, person or 

reputation, shall have remedy by due course of law, and right and justice 

administered without sale, denial or delay.” Lowe’s right to seek a judicial remedy 

unambiguously exists separately and apart from the grievance procedure outlined 

by the parties’ collective bargaining agreements. Lowe filed a civil action in 

circuit court pursuant to his individual, constitutional right to do so. FOP’s act of 

executing the collective bargaining agreements did not preclude Lowe from 

exercising his right of access to our courts. Furthermore, the terms of the parties’

agreements expressly confine the right to pursue non-binding arbitration to FOP. 

Lowe was not authorized by the terms of the collective bargaining agreements to 

seek arbitration. For these reasons, the “exclusive remedy” provisions in the 

parties’ collective bargaining agreements could in no way limit Lowe’s ability to 

seek judicial relief. 

We conclude that the “exclusive remedy” provisions of the parties’

agreements did not divest Lowe of his individual right to file a civil action, nor did 

it deprive the court of particular-case jurisdiction or authority to entertain the 

action. Therefore, the Fayette Circuit Court did not err by denying LFUCG’s 

motion to dismiss the action. 
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For its second argument, LFUCG contends that the circuit court erred 

by concluding that Lowe was not afforded an adequate opportunity to present his 

side of the matter as required by the provisions of the parties’ collective bargaining 

agreements. Our rules of practice are clear. CR2 76.03(4) mandates that an 

appellant “shall file. . . a prehearing statement” that identifies “issues proposed to 

be raised on appeal . . . .” CR 76.03(8) provides that “[a] party shall be limited on 

appeal to issues in the prehearing statement except that when good cause is shown 

the appellate court may permit additional issues to be submitted upon timely 

motion.” We may not consider arguments presented to challenge a trial court’s 

judgment where they have not been raised in the prehearing statement or on 

motion. See Sallee v. Sallee, 142 S.W.3d 697 (Ky. App. 2004).

 The prehearing statement filed by LFUCG identifies the issues 

proposed to be raised on appeal as follows: 

LFUCG contends that the grievance was untimely and 

that the “exclusive remedy” language, found throughout 

the collective bargaining agreement, bars suit is [sic] this 

matter. As such, LFUCG was entitled to summary 

judgment. Furthermore, the appellant [sic] has received 

all monies owed to him by LFUCG. 

This issue contested the circuit court’s conclusion that Lowe was not afforded the 

opportunity to present his side of the matter as mandated by the parties’ agreement. 

 

2 Kentucky Rules of Civil Procedure. 
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However, this issue was not raised either in the prehearing statement or by timely 

motion seeking permission to submit the issue for good cause shown. CR 

76.03(8). Therefore, this specific issue is not properly before the Court for our 

review. We are precluded from reviewing it. Sallee, supra. 

In its third argument, LFUCG contends that the circuit court erred by 

granting summary judgment in favor of Lowe and FOP because Lowe failed to file 

a timely grievance with respect to its decision to place him on leave without pay. 

We disagree. 

Summary judgment is proper where there exists no genuine issue of 

material fact, and the movant is entitled to judgment as a matter of law. CR 56.03. 

“[T]he construction and interpretation of a contract . . . are questions of law to be 

decided by the court . . . .” Frear v. P.T.A. Industries, Inc., 103 S.W.3d 99, 105 

(Ky. 2003) (citing First Commonwealth Bank of Prestonsburg v. West, 55 S.W.3d 

829, 835 (Ky. App. 2000)). 

There is no genuine issue with respect to the facts underlying the 

parties’ dispute. LFUCG claims that its notice to Lowe on June 5, 2014, that he 

was being placed immediately on leave without pay was proper. LFUCG cites to 

provisions of the parties’ collective bargaining agreement that require that a 

grievance be presented within ten (10) days of the grieved event. It argues that the 

grievance filed by Lowe on November 9, 2017, came “well beyond the June 15, 
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2014 deadline.” Additionally, LFUCG argues that under the terms of the parties’

collective bargaining agreements, the decision to suspend Lowe without pay 

“issued and [became] final” once he failed to attend a meeting with the director of 

Community Corrections. 

Relying on the opinion of the arbitrator that the grievance was 

untimely, LFUCG also contends that the circuit court erred by failing to accord the 

arbitrator’s decision substantial deference. However, this proposed issue was also 

not identified in the prehearing statement filed by LFUCG nor by timely motion 

seeking permission to submit the issue for good cause shown. CR 76.03(8). 

Therefore, this issue is not properly before the Court for review. We decline to

consider this part of the argument further. 

The parties agree that the terms of the 2012-2016 collective 

bargaining agreement govern the disciplinary action taken against Lowe on June 5, 

2014. Article 14, Section 2 of the agreement identifies four disciplinary measures: 

oral warning, written reprimand, suspension, and dismissal. It does not mention 

“leave without pay”; “administrative leave”; or “administrative leave without pay.” 

Article 14, Section 4 provides that disciplinary actions of suspension 

or dismissal shall be initiated by the delivery of proposed disciplinary action to a 

member. Section 4 mandates that the director of Community Corrections, or his 

designee, meet with the member and, if requested, with the FOP representative. At 
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the meeting, the member must be advised again of the level of discipline proposed

to be issued. The member or his FOP representative must be afforded an 

opportunity to present the member’s “side of the matter and any materials relating 

to the violation he wants the Director to consider prior to issuing discipline.” 

Article 14, Section 4 (emphasis added). Section 4 provides that in the event the 

member fails to attend the meeting, “discipline shall be issued and shall be final.” 

Id. Article 14, Section 5 requires that suspension or dismissal be issued by the 

director. If the member cannot receive the discipline in person, Section 5 requires 

that a written copy of the discipline be sent by certified mail to the member’s last 

provided address. “The date postmarked shall be considered the date that the 

discipline was received.” Article 14, Section 5(A). The agreement provides that 

the grievance and arbitration procedure described in Article 11 may be invoked by 

FOP “[u]pon receipt of the discipline by the member.” Id. 

With respect to the imposition of suspension or dismissal, “the 

grievance shall begin at the level of the Human Resources Director (Step 3 of the 

Grievance procedure) and shall proceed as provided in Article 11.” Id. Step 3 of 

the grievance procedure is identified in Section 2 of Article 11 of the parties’

agreement. It provides that where a settlement cannot be reached at the meeting 

between the member and the director of Community Corrections, the FOP 

representative or a legal representative “shall present the grievance in writing to 
-27-

the director of Human Resources” within ten (10) days from receipt of a written 

response from the director of Community Corrections. Article 11, Section 2. The 

director of Human Resources “shall make a determination in writing within thirty 

(30) days.” Id. If the grievance is not presented within ten (10) days, “the appeal 

to the Director of Human Resources shall be deemed waived.” Id. If the director 

of Human Resources fails to render a decision in writing within thirty (30) days, 

“the grievance shall be considered satisfied in favor of the grievant.” Id. Step 4 

describes the process by which FOP may seek advisory arbitration. Id. 

Article 11, Section 3 broadly provides that where a grievance is not 

presented within the specified time limits, the grievance will be considered waived. 

Article 11, Section 4 indicates that “the procedure contained in this article is the 

sole and exclusive means of resolving all disciplinary actions and/or grievances 

arising under this Collective Bargaining Agreement.” 

It is clear from the sequence of LFUCG’s interactions with Lowe that 

LFUCG failed to follow the procedures outlined by the terms of the parties’

collective agreement by which it could suspend Lowe. Nor did it follow the 

procedures by which the dispute concerning his suspension could be resolved. The 

memorandum provided to Lowe by Bureau Manager Kammer on June 5, 2014,

described his discipline as “leave without pay.” However, there exists no such 

disciplinary measure under the terms of the parties’ 2012 - 2016 collective 
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bargaining agreement. Moreover, a member’s suspension must be initiated by the 

delivery of proposed disciplinary action. Kammer’s memorandum provides for 

Lowe’s immediate suspension. 

 Kammer advised Lowe in the memorandum that Lowe could make a 

request -- within 24 hours -- for a meeting with the director. However, the terms of 

the parties’ collective bargaining agreement mandate that the director of 

Community Corrections conduct a meeting with the member during which the 

member must be advised again of the level of discipline proposed to be issued and 

that the member must be afforded an opportunity to present a defense and any 

materials relating to the violation he wants the director to consider prior to issuing 

discipline. 

 The terms of the parties’ collective bargaining agreement do not put 

the burden on the member to schedule a meeting with the director. Moreover, the 

required meeting must be conducted to discuss the proposed discipline -- not 

discipline that has already been imposed upon the member. Finally, terms of the 

parties’ agreement require that suspension or dismissal be issued by the director

and delivered to the member in a specifically prescribed manner. The 

correspondence of June 10, 2014, from LFUCG’s counsel, written in response to 

correspondence from Lowe’s counsel, wholly fails to comply with these 

requirements. 
-29-

LFUCG’s failure to observe the procedures that it was obligated to 

follow prior to placing Lowe on leave without pay made it impossible for FOP or 

Lowe to initiate the grievance procedure set forth in the parties’ collective 

bargaining agreement. Where a settlement cannot be reached during the meeting 

between the member and the director of Community Corrections, FOP or a 

member’s legal representative is required by the terms of the parties’ agreement to 

present a grievance in writing to the director of human resources. The written 

grievance must be submitted within ten (10) days from the receipt of a written 

response from the director of Community Corrections. The director of Community 

Corrections did not conduct the required meeting with Lowe. Consequently, Lowe 

never received the director’s written response to any discussion. He lacked a 

writing that would trigger the grievance procedure. 

It was not until November 14, 2017, when LFUCG’s director of 

human resources corresponded with Lowe’s counsel, that the grievance procedure 

began to track or reflect the mechanism that the parties had agreed was “the sole 

and exclusive means of resolving all disciplinary actions and/or grievances arising 

under this Collective Bargaining Agreement.” In his correspondence, Director 

Maxwell explained to counsel that LFUCG acted properly when it placed Lowe on 

leave without pay on June 5, 2014. Finally, with this written decision at long last 
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provided, Lowe was in position to request that the issues be submitted to advisory 

arbitration. He did so in timely fashion. 

There were no genuine issues of material fact, and the Fayette Circuit 

Court did not err by concluding as a matter of law that Lowe and FOP complied 

with the provisions of the grievance procedure and that LFUCG breached the 

unambiguous terms of the collective bargaining agreement. Consequently, Lowe 

and FOP were entitled to judgment as a matter of law. 

In its fourth and final argument, LFUCG argues that the court erred by 

concluding that Lowe was entitled to damages. It reasserts its contentions that the 

circuit court was without jurisdiction to entertain the civil action and that it did not 

breach the terms of the parties’ collective bargaining agreements. However, we 

have rejected those arguments. 

In the alternative, LFUCG argues that Lowe was not entitled to

damages because he was dismissed for just cause. Taking into account the relevant 

additions to the parties’ collective bargaining agreement, we assume that LFUCG 

could now impose leave without pay and dismissal upon a member’s arrest on 

felony sex abuse charges. However, those changes have no bearing upon this 

matter. Furthermore, the obligation of LFUCG to conform its disciplinary 

procedures to the provisions of its agreement with FOP is not eliminated because 

of the heinous nature of a member’s alleged conduct. 
-31-

Having concluded that LFUCG breached the parties’ agreements, the 

trial court did not err by awarding contract damages. Contract damages 

compensate an injured party. In Kentucky, the general “measure of damages for 

breach of contract is ‘that sum which will put the injured party into the same 

position he would have been in had the contract been performed.’” Hogan v. Long,

922 S.W.2d 368, 371 (Ky. 1995) (quoting Perkins Motors, Inc. v. Autotruck

Federal Credit Union, 607 S.W.2d 429, 430 (Ky. App. 1980)). Lowe proved his 

damages with reasonable certainty. See Pauline’s Chicken Villa, Inc. v. KFC

Corp., 701 S.W.2d 399 (Ky. 1985). There was no error. 

We AFFIRM the judgment of the Fayette Circuit Court.

ALL CONCUR.

BRIEF FOR APPELLANT:

J. Todd Henning

Lexington, Kentucky

BRIEF FOR APPELLEES:

Scott A. Crosbie

Lexington, Kentucky

Nicholas A. Oleson

Lexington, Kentucky