I certify that attached hereto is a true and correct copy of the Recommended Order and Final Order in the case of CARL D. JONES VS. JUSTICE CABINET, DEPARTMENT OF CORRECTIONS (2001-115) as the same appears of record in the office of the Kentucky Personnel Board.

Witness my hand this 16th day of October, 2001.

_______________________________________

R. HANSON WILLIAMS, SECRETARY

Copy to Secretary, Personnel Cabinet

* * * * * * * * * *

The Board at its regular October 2001 meeting having considered the Findings of Fact, Conclusions of Law and Recommended Order of the Hearing Officer dated August 21, 2001, having noted exceptions filed by Appellee, oral argument of the parties, and being duly advised,

IT IS HEREBY ORDERED that the Findings of Fact, Conclusions of Law and Recommended Order of the Hearing Officer be, and they hereby are approved, adopted and incorporated herein by reference as a part of this Order, and the Appellant’s appeal is therefore SUSTAINED.

The parties shall take notice that this Order may be appealed to the Franklin Circuit Court

in accordance with KRS 13B.140 and 18A.100.

SO ORDERED this 16th day of October, 2001.

KENTUCKY PERSONNEL BOARD

A copy hereby this day

mailed to:

Mr. Carl D. Jones

Hon. Jennifer Hatcher

Lee Sheetinger

* * * * * * * * * *

This matter came on for evidentiary hearing on July 30, 2001, at 9:30 a.m., 28 Fountain Place, Frankfort, Kentucky before Prentice A. Harvey, Hearing Officer. The proceedings were recorded by audio/video equipment.

The Appellant, Carl D. Jones, was present and was not represented by legal counsel. Appellee, Department of Corrections, was present and represented by Honorable Jennifer Hatcher.

1. The Appellant, Carl D. Jones, is a classified employee with status, who works for the Department of Corrections as a Correctional Sergeant at the Northpoint Training Center (Northpoint), a medium security prison. Appellant filed an appeal with the Personnel Board on April 26, 2001, indicating that he appealed from an "Applicant Rejection" and provided the following statement of facts giving rise to his appeal:

The Appellant also attached copies of a grievance and other materials to his appeal form.

2. A pre-hearing conference was held in the case on May 23, 2001. At the pre-hearing conference it was determined that the Appellant appealed from the denial of a promotion to the position of Correctional Lieutenant for which he had applied and that Lt. Carl Griffith had been promoted to the position which Appellant sought. The case was scheduled for an evidentiary hearing on the issue of whether Appellee complied with the provisions of 101 KAR 1:400 in filling the position sought by Appellant. Appellee was assigned the initial burden of going forward to demonstrate that it complied with the regulation. Appellant was assigned the burden of proof of establishing that his qualifications, record of performance, conduct, seniority and performance evaluations were such that he should have received the promotion, rather than Lt. Griffith.

3. Pursuant to the Interim Order which scheduled the case for evidentiary hearing, Lt. Carl Griffith was notified of his right to intervene in the proceeding. A copy of the order was served on Lt. Griffith by the Appellee and filed with the Personnel Board on June 6, 2001. Lt. Griffith did not seek to intervene.

4. Kimberly Whitley, Personnel Administrator, Northpoint, testified that in January 2001, there was an open position of Correctional Lieutenant. Whitley described the process of providing notice of the vacancy and said that Warden James Morgan appointed a three-member interview panel to screen candidates and make recommendations for the promotion. She said that Internal Mobility forms were made available for interested employees to complete and submit. Whitley testified that interviews were conducted for the position and that a list of names was submitted by the interview panel to Warden Morgan for the selection to the position.

5. James B. Mitchell, Deputy Warden/Security, testified that he is Acting Warden of Northpoint because Warden Morgan is on extended sick leave. Mitchell said he was a member of the interview panel and that the panel conducted interviews of candidates with two panel members asking questions and the third member recording the candidate's response. He said that the questions asked of candidates focused on leadership ability, management skills, and technical knowledge. He also testified that during the interviews the panel had the Internal Mobility form completed by each candidate.

6. Mitchell briefly compared the qualifications of Appellant and Lt. Griffith. He said that Appellant had more experience (282 months) than did Lt. Griffith (103 months). He testified the formal education of the two is roughly equal. Appellant has had two written reprimands, Mitchell said, while Lt. Griffith has had no written reprimands or disciplinary actions. Mitchell said that in his opinion Appellant had done a fair job during the interview but that some of his responses were not good. He recalled that Appellant had misclassified a ruler as part of a tool control procedure. Following the completion of all interviews, Mitchell testified that the panel discussed all candidates and arrived at recommendations to give to Warden Morgan. (Appellee's Exhibit No. 1.)

7. On cross-examination, Mitchell said that he could not recall why he had signed in for Appellant on the interview sign-in sheet. He agreed that after sixteen (16) years of service an employee is classified as a career employee. Mitchell testified that performance evaluations were not pulled for review. He said that he could not recall any discussion of Appellant's experience as a Yard Lieutenant and he did not know how long either Appellant or Lt. Griffith had held the position of Sergeant. On continuing questioning, Mitchell said that he recalled some discussion with Appellant in the past but he did not feel he had a problem with Appellant.

8. Mitchell stated that Cpt. McCullough and Recreation Supervisor Tim Settles were the other two members of the interview panel. He said that the panel's decision process involved discussing the candidates and their individual strengths and weaknesses. He described the process of arriving at the three names to be recommended as dividing the Internal Mobility form into two stacks: those who the panel felt were candidates for promotions and others. He said that the panel then continued to discuss candidates for promotion until it arrived at a consensus on the three top candidates. Mitchell said that he then prepared a memorandum to Warden Morgan listing three names (Appellee's Exhibit No. 3) and that Warden Morgan selected Carl Griffith from the list of three. The Appellant was not recommended by the panel. Mitchell said that the candidates for promotion had completed their own Internal Mobility forms.

9. Capt. David McCullough testified that he works at Northpoint and was a member of the interview panel. He described the interview process stating that panel members looked over the Internal Mobility forms as individual candidates came to be interviewed. He said that the panel asked questions of each candidate, taking turns in asking questions and recording answers. McCullough said he felt that Carl Griffith provided more thorough answers to questions and did a better job overall with the interview. He stated that Griffith was a better candidate for promotion because he had more experience with the emergency squad and Special Management Unit (SMU) and that he had more commendations for his work. He could not recall any specifics of Appellant's interview.

10. Timothy Settles, Recreation Leader, Northpoint, testified that he was a panel member. Settles said the panel reviewed Internal Mobility forms and took turns in asking questions and recording the responses of the candidates. Following completion of interviews, Settles said, the panel discussed the candidates and their qualifications and arrived at three names which were submitted to Warden Morgan. Settles said that he was impressed by Carl Griffith's appearance and the Internal Mobility form that Griffith submitted. Settles said that Griffith had put a lot of work into the form by entering it in a personal computer and printing out a neat and well-written form. He said that he had not originally been appointed to the panel but had filled in because of the absence of one of the original members.

11. Carl Griffith testified that he is a Correctional Lt. at Northpoint. He said that he had been with Department of Corrections for nine years: First as a Correctional Officer, then serving for thirteen (13) months as a Correctional Sergeant prior to being a promoted to Lieutenant. Lt. Griffith said that during his time as a Sergeant he had performed the duties of a squad leader with the emergency response Special Management Unit which deals with problem inmates. He also said that he had been involved with chemical response and had worked at virtually every post at the prison. Lt. Griffith said that he is attending Eastern Kentucky University, pursuing a degree in Corrections and Criminal Justice. He also testified about managerial experience that he had in private business prior to state employment and said that he had supervised more than thirty (30) employees for a private firm.

12. Appellant, Sgt. Carl D. Jones, testified that he had sought the promotion to the position of Correctional Lt. and on March 13, 2001, interviewed for the position. He maintained that he was wrongfully denied the promotion and that the individual who received the promotion had significantly less experience. Appellant said that he has 282 months service, while Griffith has only 103. He also said that the panel also failed to adequately consider performance evaluations prior to making its recommendations.

13. Appellant described his service with the Department of Corrections. He said that he became employed with the Department in 1977 and worked three years at the Kentucky State Penitentiary at Eddyville where he gained broad experience at virtually all posts. Appellant said he transferred to Northpoint as a Correctional Officer and moved in l990 to Frankfort Career Development Center where he was promoted to the position of Sergeant. He said that he then laterally transferred to the position of Sergeant at Northpoint and has held the position of Sergeant for eleven (11) years in total. Appellant said that he had been supervisor of SMU and served as an Adjustment Committee Officer. He said that he had received commendations and awards including from his Unit Director. (Appellant's Exhibit No. 2.) He also said that he had served as Acting Yard Lieutenant and said this was important experience that prepared him for promotion to Correctional Lt.

14. Appellant said that he had not filled out the record of performance on the Internal Mobility form. He said that he had never done this before and felt that it was unnecessary because the panel members should have information on performance evaluations. Appellant tendered a copy of his recent evaluations. (Appellant's Exhibit No. 3.) Appellant said he had received two written reprimands. One of these occurred, he said, while he worked at Northpoint and had made a joking remark that was taken was out of context. He said that the other reprimand was when he worked at FCDC and had allowed a civilian to wait in the facility's control center. He described his college education at Murray State University where he studied Correctional Law and Administration during the time that he worked at Kentucky State Penitentiary. He said that he was a few hours short of an Associate Degree.

15. 101 KAR 1:400, Section 1(1) "Promotion" provides as follows:

1. Appellant, Carl D. Jones, is a classified employee with status, who works at Northpoint. Appellant filed a timely appeal with the Personnel Board on April 26, 2001 from a denial of a promotion to the position of Correctional Lt. for which he had applied.

2. Appellant, as well as the ten other candidates for the promotion to the open position of Correctional Lt. at Northpoint, completed Internal Mobility forms. The forms request information concerning the seniority, qualifications, performance evaluation ratings, record of performance, and conduct of each applicant. (Appellee's Exhibit No. 3.)

3. Warden Morgan appointed a three-member panel which conducted interviews of candidates on March 13, 2001. Following the interviews, the panel members consulted and selected three persons for recommendation to Warden Morgan, including Carl Griffith who was appointed to this position. The Appellant was not recommended by the interview panel.

4. James B. Mitchell, Deputy Warden/Security was the highest ranking member of the interview panel and prepared the memorandum recommending three individuals to Warden Morgan. Deputy Warden Mitchell testified that the interview panel did not obtain or review the performance evaluations of the candidates.

5. Appellant's Exhibit No. 3 is a collection of Appellant's performance evaluations over the last several rating periods. The evaluation forms give a detailed description of Appellant's work experience including that of a Yard Lt., Adjustment Officer, Shift Sgt., Special Management Unit, and other specific duties and experience. The forms also provide the rationale and thoughts of Appellant's direct supervisors concerning the ratings assigned to Appellant during each evaluation period.

1. 101 KAR 1:400, Section 1(1) requires agencies to consider the qualifications, record of performance, conduct, seniority, and performance evaluations of candidates in the selection of an employee for promotion. The evidence and testimony in this case establish that the interview panel failed to obtain and to consider the performance evaluations of the eleven (11) candidates for the promotion to Correctional Lieutenant and that, therefore, the promotion was not done in accordance with 101 KAR 1:400, Section 1(1) and is void. The mere consideration of performance ratings as listed on the Internal Mobility form does not meet the requirement of 101 KAR 1:400, Section 1(1) that an agency consider performance evaluations. While the interview panel in this case had information on ratings from the Internal Mobility form, its failure to obtain and review the employee evaluation forms rendered it incapable of fully evaluating the candidates for the promotion to the position. Panel members were not familiar with the details of the candidates' recent work experience or with the rationale of their first-line supervisors in assigning evaluation ratings.

2. The evidence of record does not establish that the Appellant would have received the promotion had Appellee complied with 101 KAR 1:400, Section 1(1). The appropriate remedy in this case is to void the promotion. A new promotional process shall be conducted giving appropriate consideration to all of to the factors set forth in 101 KAR 1:400, Section 1(1), including the performance evaluations of the candidates. Bowling v. NREPC, Ky. App., 891 S.W.2d 406 (1993).

It is hereby recommended that the appeal of Appellant, Carl D. Jones, (Appeal No. 2001-115) be SUSTAINED as to allegations that Appellee failed to comply with 101 KAR 1:400. The appointment of Carl Griffith is VOID ab initio. The position shall be reopened and filled giving appropriate consideration to all the factors of 101 KAR 1:400, Section1(1), including performance evaluations.

Any Exceptions and/or Requests for Oral Argument hereto shall be filed within fifteen (15) days hereof and any Response to Exceptions shall be filed within five (5) days of the date the Exceptions are filed with the Board.

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 18A.100.

ISSUED at the direction of the Hearing Officer this _________ day of August, 2001.

KENTUCKY PERSONNEL BOARD

________________________________

R. HANSON WILLIAMS

A copy hereof this day sent to:

Mr. Carl D. Jones

Hon. Jennifer Hatcher