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This matter is before the Court on Petitioner's appeal from a decision of the Personnel Board, which ordered Petitioner to compensate Agyenim Boateng for a period of time in which he was qualified to work but was not hired. The relevant facts are as follows:

Agyenim Boateng, an attorney, was first hired by the Transportation Cabinet in 1979 and was placed in the Office of General Counsel. He was stationed for a brief time in Jackson, Kentucky as a district attorney for the Highway Department. In 1981 Boateng was appointed as a hearing officer for the Motor Carrier division, a position which he held for many years. As he gained experience and seniority, Boateng's position rose to his highest post as Assistant General Counsel/Attorney Manager in 1993. His duties in this position included being Chief Hearing Examiner, managing the office and supervising the office staff.

In October 1994, the Hearings section of the office of General Counsel was upgraded to a Division and was placed under the Department of Vehicle Regulation. Boateng was subsequently promoted to Division Director to head this newly-created Hearings Division. This non-merit position required Boateng to resign his former merit status. Kentucky statutes and regulations provide that employees 'Moving from a merit position to a non-merit position may have reversion rights to their former merit status if certain conditions are met. 101 KAR 3:050, § 1(2) provides that

Any career employee promoted from a classified to an unclassified position retains his status in the classified service. On separation from the unclassified service, he reverts to a position in that class in which he had status in the agency from which he was terminated if a vacancy in that class exists. If no such vacancy exists in a position of the former class, the statutes (KRS 18A. 113 and 18A. 1132) pertaining to layoff shall apply. He shall be considered for employment in any vacant position for which he is qualified pursuant to KRS 18A. 130 and 18A. 135.

A "career employee" is defined by KRS 18A.005 as "a state employee with sixteen (16) or more years of permanent full-time state service, or the part-time employment equivalent of at least sixteen (16) years of full-time state service. The service may have been in the classified service, the unclassified service, or a combination thereof." Boateng was a career employee with the state as of late 1995.

On March 4, 1996, the Secretary of Personnel informed Boateng that his services were no longer required, effective March 15. He was informed that there was no reversionary Assistant General Counsel/Attorney Manager position available within the Cabinet. Boateng filed an appeal with the Personnel Board, alleging that his termination was motivated by his race (which is African-American), his national origin (Ghana, West Africa), his political affiliation (Republican party), and otherwise in violation of his civil rights.

The hearing officer concluded that Boateng was properly advised of his reversionary rights within the merit system pursuant to KRS 18A. 115, 18A.130 and 18A.135, and that he had failed to prove a case of discrimination. Exceptions were filed, and the Personnel Board entered an order remanding the matter for another hearing to determine whether the Transportation Cabinet complied with the provisions of 18A.130 and 18A.135.

On remand, the hearing officer concluded that the Cabinet failed to consider Boateng for classified positions which were available within the Cabinet upon his termination on March 15, 1996.

These positions were filled by applicants within the Cabinet's "Internal mobility program." The hearing officer ruled that these applicants should not have been considered ahead of Boateng. She recommended that the Cabinet place Boateng in any vacant position for which he qualified, and that the Cabinet reimburse Boateng for "the amount of pay he would have received had he been placed in the first available position for which he qualified after his termination on March 15, 1996." Exceptions were taken to the recommended order, and the Personnel Board affirmed and adopted the recommendations. This appeal followed.

Boateng initially moved this Court for a temporary injunction to compel the Cabinet to comply with the Board's order. At hearing, the Cabinet informed Boateng that it had decided to place him in an attorney position with the Cabinet. This Court denied Boateng's motion for back pay and other compensation pending the outcome of this appeal. The only issue before the Court, therefore; is whether the Personnel Board properly ordered compensation of back pay from March 15, 1996 until his re-employment with the Cabinet.

In reviewing an agency decision, this Court may only overturn that decision if the agency acted arbitrarily or outside its scope of authority, if the decision itself is not supported by substantial evidence on the record, or if the agency applied an incorrect rule of law. Kentucky State Racing Comm’n v. Fuller, Ky., 481 S.W.2d 298 (1972). This Court may uphold an agency's findings even though the record may indicate that there is evidence to the contrary. Kentucky Comm'n on Human Rights v. Fraser, Ky., 625 S.W.2d 852 (1981). Courts are to give substantial deference to the agency's findings of fact, especially where those findings go to the credibility of witnesses. Bowling v. Natural Resources & Envtl. Protection Cabinet, Ky.App., 891 S.W.2d 406 (1994). However, when dealing with issues of law, this Court may review them de novo, without granting the agency any deference. Mill Street Church of Christ v. Hogan, Ky.App., 785 S.W.2d 263 (1990).

The relevant personnel statutes and regulations in this case are KRS 18A.130 and KRS 18A.135. KRS 18A.130 reads, in pertinent part, as follows:

1. A career employee whose employment is terminated on or after January 1, 1980, by layoff, dismissal, other than for cause . . . shall, upon his written request, be reemployed or placed on reemployment lists in accordance with this section and KRS 18A. 135.

2. If the career employee has previously attained status in a position in the classified service, he shall revert to a position in that class in the agency from which he was terminated if a vacancy in that class exists. If no such vacancy exists, he shall be considered for employment in any vacant position for which he is qualified pursuant to the reemployment procedures.

3. If the career employee has not previously attained status in the classified service or if he has attained status but no vacancy exists in a position to which subsection (2) of this section applies, the employee shall be placed on reemployment lists for any positions for which he is qualified.

KRS 18A.135 states that:

"(1) Any career employee who has been laid off or dismissed, other than for cause, ... shall automatically be placed on the reemployment list for the class from which he was terminated. If a career employee wishes to be on the reemployment list for other classes of positions for which he is qualified and passes the appropriate selection method, he shall notify the department in writing.

1. If more than one (1) career employee requests to be placed on the reemployment list for any job classification, the department shall list the names of such career employees in the order of their seniority.

2. No vacancy may be filled from a competitive register until all career employees on the reemployment list for that class of position have denied employment in that class. An appointing authority may refuse to reemploy a qualified employee on the reemployment list only for cause."

According to the hearing officer's supplemental findings and conclusions, the Cabinet informed Boateng that, as a career employee formerly with the classified service, he had reversion rights pursuant to the above-cited statutes. The Cabinet also informed him that no merit position was available in the class in which he was formerly employed, and that no "similar" merit position for which he qualified was available within the Department. Boateng then had his name placed on the re-employment list within the Cabinet.

These findings also reveal that several employees were placed into merit positions within the Cabinet for which Boateng qualified and which existed at or shortly after his termination. These positions, according to Personnel Administrator Robin Croley, were filled by promotions pursuant to the "internal mobility program" outlined in 101 KAR 2:056, § 5, which states in part as follows:

"There is established an internal mobility program to facilitate the movement of classified employees to positions in different classes in the state personnel system. (1) The commissioner shall maintain full-time and part-time registers which, in addition to the names of eligibles for reemployment and appointment ... shall consist of the names of interested employees with status who seek promotion, demotion or transfer to a position of a different class and who meet the minimum requirements and pass the appropriate selection method."

The question thus becomes whether applicants within the internal mobility program have higher or equal priority to those who seek reemployment pursuant to KRS 18A.130 or 18A.135. The Cabinet argues that it has the authority to fill vacancies first by "promotion, transfer, or demotion," which implicitly includes internal mobility applicants, prior to considering those seeking a position by re-employment, reversion or other status. However, KRS 18A.135(3) specifically provides that "no vacancy may be filled from a competitive register until all career employees on the reemployment list for that class of position have denied employment in that class." In addition, the statutes relating to layoffs similarly provide that vacant positions be filled with reversion candidates before offering the positions on a competitive register. KRS 18A.113(5), which applies to employees whose merit rights have reverted pursuant to 101 KAR 3:050, § 1(2), provides that "for a period of five (5) years, laid off employees shall be hired before any applicant or eligible employee except another laid-off employee with greater seniority who is already on such register."

There is no evidence in the record that Boateng was offered any of these positions before they were offered to internal mobility applicants. The Cabinet's argument that it has discretion in filling vacant positions is not supported by the applicable law. Thus, we agree with the hearing officer's conclusion that "there is no authority for the maintenance of a separate 'lnternal Mobility Register' under the statutory and regulatory scheme," and the Cabinet "violated its duty to [Boateng] ... by failing to consider [him] for classified positions available within the Transportation Cabinet" after his March 15, 1996 termination.

The Cabinet claims that, even if it had gone directly to the re-employment list upon Boateng's termination, he still would not have been immediately placed into the first available position because his was not the most senior name on the list. KRS 18A. 135(2) states that "if more than one (1) career employee requests to be placed on the re-employment list for any job classification, the Department shall list the names of such employees in the order of their seniority." There was limited testimony at the remand hearing from Robin Croley that Boateng was not the most senior employee on the reemployment list upon his termination. However, there exists no specific itemization of the names on the list as of March 15, 1996, nor how long the names had been on the list or what seniority they may have attained. In short, we cannot objectively verify from the record we have before us that this statement is true.

On appeal to this Court, the appealing party has the burden of proving that the agency's decision was improper. See Kentucky State Racing Comm'n v, Ky., 481 S.W.2d 298 (1972). Boateng, the appellant at the administrative level, successfully met his burden by proving that positions for which he qualified were filled in an improper manner. Here, it is the Cabinet's burden of demonstrating that this ruling is incorrect. We have already ruled that the hearing officer correctly determined that internal mobility applicants could not be considered in advance of re-employment candidates for vacant positions. The Cabinet's final argument is that Boateng would not have been eligible for the first-available position because he was not the most senior employee on the list. However, we have no definite proof that this is the case. The hearing officer apparently found this argument to be unsubstantiated, as she did not address it in her conclusions.

Robin Croley testified at hearing that there was "no way" to produce documentation as to the status of vacancies within the Cabinet on a particular date. This, however, does not alter the fact that the Cabinet bears the burden of proving that Boateng was not qualified to be placed in the vacant positions at or around March 15, 1996. There is no such proof in the record, aside from the unverified statement of a Cabinet employee called to testify on behalf of the Cabinet. We are not prepared to overrule the decision of the hearing officer who heard the entire matter, and the agency which carefully reviewed the hearing officer's recommendations, based on such a statement.

THEREFORE, IT IS HEREBY ORDERED that Petitioner's appeal shall be, and the same hereby is, DENIED.

IT IS FURTHER ORDERED that the order of the Personnel Board shall be, and the same hereby is, AFFIRMED insofar as it requires full recompensation of pay and accompanying benefits to Agyenim Boateng from March 15, 1996 until his reinstatement with the Cabinet.

IT IS FURTHER ORDERED that this action shall be, and the same hereby is, DISMISSED.

SO ORDERED, this 4th day of Sept. 1997. This is a final and appealable

Order and there is no just cause for delay.

DISTRIBUTION:

Edwin A. Logan, Esq,

Logan & Gaines

100 East Main Street

Frankfort, Kentucky 40601

Counsel for Petitioner

Theodore Berry, Esq.

2401 Recency Road, Suite 301

Lexington, Kentucky 40503

Counsel for Respondent Agyenim Boateng

Kentucky Personnel Board

28 Fountain Place

Frankfort, Kentucky 40601