Peggy and Dennis

Remember this Guy?

Sure you do.

That's former NBA star Dennis Rodman, the poster child for the Competence-Deviance Hypothesis. In a nutshell, the premise is that the more competent an individual is, the more deviance will be tolerated in him or her by others. So in the case of Dennis Rodman, Detroit, San Antonio, Chicago and others all tolerated, at some expense, Dennis's proclivities for flamboyant stylings - even those that were a big departure from the expectations placed on others.

Why? There was a lot Dennis could not do; like shoot freethrows or hit a 3-pointer.

The reason lies in what Dennis could do. He could rebound. He could rebound a lot. Over a 14-year career Rodman pulled down an average of 13.1 rebounds a night. 18 per game in his prime at Detroit in 91-92 when he gathered more than thousand for the season.

Given so much competence in a critical area - Dennis was allowed to be deviant in others.

This was essentially the argument made by Superintendent Stu Silberman and the Fayette County school directors who evaluated former BTWA Principal Peggy Petrilli as they try to explain to the jury how anyone could rack up such a significant list of management problems - a list that would place lesser beings squarely in the cross hairs - and not have a one of them show up on her evaluations.

Catch us tomorrow morning and I'll share today's testimony as Petrilli's attorney bore down.

In the meantime...here are a few tweets: Read 'em from the bottom up.

Reday000Court in recess until Monday morning.about 1 hour ago from mobile web

Reday000Jurors indicate to Judge that they all can continue to serve next week.about 1 hour ago from mobile web

Reday000Plaintiff rests.about 1 hour ago from mobile web

Reday000Judge says it looks like another long day Monday...possible Tuesday.about 2 hours ago from mobile web

Reday000 Golden calls Brenda Allen. Court rules Allen does not have to appear due to attorney client privilege.about 2 hours ago from mobile web

Reday000Judge confers with attorneys on remainder of trial.about 2 hours ago from mobile web

Reday000Silberman excused.about 2 hours ago from mobile web

Reday000Golden: "Wasn't the goal to send Carmen & Fabio out to her house, to pressure her to resign.about 2 hours ago from mobile web

Reday000Golden bears down on Silberman.about 2 hours ago from mobile web

Reday000Stu: That's the bottom line on this whole situation. I did not make Peggy leave.about 2 hours ago from mobile web

Reday000"Did you throw Peggy under the bus? Stu "Oh no. Peggy made the decision to leave."about 2 hours ago from mobile web

Reday000Court resumes. Stu still on the stand.about 3 hours ago from mobile web
 
Reday000After side bar...McNeilll begins cross.about 4 hours ago from mobile web

Reday000Golden: "Didn't you decide it would just be easier to turn your back on Peggy?" Stu: "That is just not true."about 4 hours ago from mobile web

Reday000Golden concludes. McNeil reserves right to recall Silberman. Does not cross.about 4 hours ago from mobile web

Reday000Stu: Peggy could have gone back to BTWA.about 4 hours ago from mobile web

Reday000Stu is back on the stand. Lisa Stone is probably next.about 5 hours ago from mobile web

Reday000Trial resumes.about 5 hours ago from mobile web

Reday000McNeilll's client is Stu but it's also the Board. Is that the thing? ? ? ?about 5 hours ago from mobile web

Reday000Doesn't Stu own the privilege? Can't he waive it at will? Hummmm.about 5 hours ago from mobile web

Reday000...but he didn't say everything he wanted to citing priv. My question is....about 5 hours ago from mobile web

Reday000...attny/client priv. Stu told the jury he wanted to answer and that "it was critical." ...about 5 hours ago from mobile web

Reday000Is there a lawyer in the house? Before lunch Golden asked Stu a question involving the board attorney. McNeilll cautioned Stu about ...about 5 hours ago from mobile web

Reday000This AM: Ishmael admonished attorneys "Remember Rule # 1...Attnys ask...Witnesses answer...and can explain.about 5 hours ago from mobile web

Reday000Stu said: I knew her to be an outstanding instructional leader...had a significant issue with management...relationshipsabout 6 hours ago from mobile web

Reday000Court in recess until 1PMabout 6 hours ago from mobile web

Reday000Stu: Sir, There was nothing more that I wanted than for Peggy Petrilli to succeedabout 6 hours ago from mobile web

Reday000Stu on Aug 22 Mtg:I thought it was just one more thing that Peggy had gotten us into. I was there to smooth things out.about 7 hours ago from mobile web

Agriscience farm is teaching architects, builders, educators

Photo and story from Tom Eblen in H-L:

Locust Trace AgriScience Farm

is a learning experience for all involved

...Locust Trace is a different kind of public school, designed to prepare high school juniors and seniors for careers in the equine industry and agriculture, where a return to sustainability is the trend. School officials wanted their facility to set a good environmental example — and be less expensive to operate and maintain.

The $15.5 million campus is one of the most "green" developments in Kentucky. It also has become a laboratory for new building methods and materials that is attracting national attention from architects, builders and educators.

Locust Trace was built on 82 acres off Leestown Road that the federal government donated to the school system. From the very beginning, Hill and other planners studied the site's location and topography to make the best use of it.

The design team collaborated with dozens of people from the school system, community and various industries. That included everything from seeking the advice of Kentucky Horse Park experts about footing in the livestock arena to technical assistance on air-flow technology from Lexington-based Big Ass Fans.

Sunlight and prevailing winds were analyzed to orient the classroom building and large arena building to make the best use of sunlight and natural breezes. The buildings use 21 Big Ass Fans — large high-volume, slow-speed fans — to help regulate indoor air flow and temperatures.

The arena building, for instance, is heated and cooled with five large fans that pull air through louvers along a roof gallery that are opened and closed manually or with automatic sensors. Clerestory windows along the gallery provide most of the arena's light.

Both buildings make extensive use of solar energy. Sunlight is maximized by window design and "solar tubes" that funnel magnified sunshine through the ceiling. Roof-mounted photovoltaic panels convert sunlight into as much as 175 kilowatts of electricity.

Power not needed immediately is fed into the Kentucky Utilities grid to offset power drawn from it on cloudy days. Electricity is shut off at night, except for a few outlets needed to run things like fish tanks...

Fayette Human Resources Director Arrested on DUI Charge

It was a clear, 50 degree night in downtown Lexington on October 21st when, at 8:30 PM, Fayette County Public Schools Human Resources Director Melodee Parker drove her red 2005 Toyota Solara into two parked cars and one brick wall in the parking lot at Short and Market Streets. According to Lexington-Fayette County police records she admitted to being on her phone at the time. She was also arrested for operating a motor vehicle under the influence of alcohol, her first such offense, and cited for failure to maintain required insurance.

Parker, whose job requires her to deal with errant FCPS employees, now finds herself on the wrong side of the conference table. Her boss, Fayette County schools Superintendent Tom Shelton, will now be required by law to report the arrest to the Kentucky Educational Professional Standards Board.

According to police records, Parker, a resident of Versailles, said she had left from Crossgate Gallery on Main Street and was going to The Trust restaurant and bar, having already consumed three glasses of wine by the time of the crash. She was not in traffic but lost control of her car as she was turning into the parking lot. There were no injuries sustained by Parker or anyone else.

Prior to her arrest, Parker contacted Attorney James Springate, and she failed a standard set of field sobriety tests administered by the arresting officer. Parker was unable to complete the One-leg Stand test, missed two criteria in the Walk and Turn test, Mixed up L and Q when reciting the alphabet, repeated 38 when counting backwards from 59 to 34 and failed the Horizontal Gaze Nystagmus test. The officer administered an intoxilyzer test and Parker blew a .123, exceeding the .08 limit set by law. Parker chose to undergo an independent blood test which was completed at 10 PM at Samaritan Hospital. Results of the test are not known to KSN&C. She was released on a $550 cash bond and was arraigned on October 24th.

In Kentucky, any driver with a blood-alcohol concentration above .08 percent is measured “per se intoxicated” under the law. Under this statute, this verification is all that is necessary for a driver to be convicted of Driving Under the Influence (DUI). Alcohol education and prevention programs can be required for DUI offenders in Kentucky and are often recommended instead of serving a sentence of incarceration or paying fines. Parker had previously been referred by the court to Traffic School in December 2007.

KSN&C invited Parker to comment on the situation, including the results of the independent blood test, but received no response. Superintendent Tom Shelton told KSN&C that the district would respond to the incident.  "This is a personnel issue and I cannot be more specific other than to say we are responding according to district policy and the law," Shelton said. It is standard practice in Fayette County to require employees with DUI's to undergo counseling through the Employee Assistance Program.

According to EPSB's legal department, they will wait for the courts to render a final judgment before responding. At that point, the matter will go before the board, which will consider the totality of the situation before rendering a decision on her certificate. The likely result for a first-time DUI offender blowing a .123 is a public reprimand and counseling, which would be reflected in the EPSB minutes. 

The general purpose of DUI counseling is to provide information to offenders regarding the impact of alcohol use on individual behavior and driving skills, and to further explore the personal ramifications of their own substance use and abuse. 

According to Mothers Against Drunk Driving, every minute, one person is injured from an alcohol-related crash; drunk driving costs each adult in this country almost $500 per year; one in three people will be involved in an alcohol-related crash in their lifetime; in a typical year, 10,839 people will die in drunk-driving crashes - one every 50 minutes; and an average drunk driver has driven drunk 80 times before his or her first arrest.

According to the Kentucky Transportation Center's analysis of traffic crash data (2005-2009), the total number of alcohol-related crashes in 2009 decreased by 5 percent compared to the previous five-year average. However, alcohol-related collisions still account for a disproportionate amount of the fatalities. Alcohol-related crashes in Kentucky were a mere 4.1 percent of the total collisions in 2009, but they accounted for 26 percent of the fatalities. 

Hurley-Richards Prevails on Appeal

Silberman Over-reached by Charging
Conduct Unbecoming a Teacher

Finding "no error with the trial court’s order," the Kentucky Court of Appeals today affirmed an order by Judge Ernesto Scorsone of the Fayette County Circuit Court and threw out the Fayette County School district's appeal.

Hurley-Richards had been disciplined, in February 2009, following a student disturbance in the hallway of Cardinal Valley Elementary School after which former Fayette County schools Superintendent Stu Silberman determined that Hurley-Richards' actions consitituted conduct unbecoming a teacher when she disciplined a student involved in the incident.

Following the incident, Silberman informed Hurley-Richards that she would be suspended, and subsequently that her contract was terminated. An administrative tribunal followed, and determined that Hurley-Richards' actions only constituted bad judgment, and the tribunal reduced Silberman's termination to a suspension.

Richards sought review of the hearing tribunal’s final order by the Fayette Circuit Court. She requested retroactive reinstatement with lost wages and benefits. The trial court found that the conclusions of the tribunal’s order were unsupported by substantial evidence on the whole record and reversed the tribunal’s order. The case was remanded to the tribunal for further proceedings. That was interrupted when the district decided to appeal.

Ultimately, by a 2-1 vote, the appeals court rejected the arguments offered by school district attorney Bob Chenoweth that the trial court misinterpreted the tribunal’s final order by making findings of fact on issues not raised before the tribunal, and by substituting its judgment for that of the tribunal.

The Court of Appeals determined that an administrative tribunal is afforded great latitude in its evaluation of the evidence and the credibility of witnesses. According to court records,

On February 3, 2009, Richards arrived at Cardinal Valley Elementary School, where she was a teacher. After seeing that there did not appear to be a hall monitor, she posted herself in the hallway as the hall monitor. Three sibling children, MK, a fifth-grader; ZK, a second-grader; and EK, a kindergarten student were present in the hallway and ZK and EK were running. Richards instructed ZK and EK to go back up the hall and walk back down properly, without running. ZK ran down the hallway again. When Richards reprimanded him, he responded that she could not tell him what to do. Richards instructed MK and EK to go to breakfast so that she could speak with ZK. MK and ZK then began pulling EK in separate directions with ZK pulling EK’s hair.

Richards, who had one arm full of school supplies, placed her other arm around ZK and proceeded to direct him toward the school’s office. ZK protested, and physically resisted being directed toward the office. At one point ZK remarked to Richards that she was choking him and Richards responded that she was not hurting him. The incident was witnessed by another employee, Sheri Hall, who testified that it appeared as though Richards had ZK around the neck. Hall did not intervene. Upon entering the office, Richards reported the hallway incident to the Principal and left.

The Court of Appeals seemed critical of Silberman's broad use of conduct unbecoming a teacher saying, "The phrase 'conduct unbecoming a teacher' has never been given a more expansive definition." The court determined that it "means something more than one incident of physically coercing an unruly child to the office" and "involved some sort of dishonest or corrupt behavior."

As the trial court observed, there is a clear disconnect between the tribunal’s factual findings and its suspension of Richards. Such an outcome is arbitrary and was therefore properly reversed and remanded by the trial court.

The Shelton Administration Begins

This from the Herald-Leader:

Fayette's new school superintendent 

brings tech-savvy approach

Tom Shelton takes over as the new superintendent of the Fayette County Public Schools Thursday, replacing, coincidentally, the same man he succeeded in his last job. Shelton, 47, follows Stu Silberman, who recruited him into the Daviess Schools and mentored him in the mid 1990s when Silberman was running that school district.


Shelton learned the ropes so quickly that when Silberman came to Lexington in 2004 to become superintendent, Daviess County named Shelton as his successor. The 2011 Kentucky School Superintendent of the Year, Shelton is taking a big step as he arrives in Lexington. He's assuming responsibility for 56 schools and more than 37,000 students —more than triple Daviess County's enrollment —in an urban community where educational expectations are high and getting higher, and any decision a superintendent makes is likely to be closely scrutinized and analyzed, and possibly criticized...

SBDM Violation Nets FCPS Principal 3-day Suspension

This from Jim Warren at H-L:

The principal at Lexington's Deep Springs Elementary School has served a three-day suspension over various allegations, including trying to influence a site-based council election.

Principal Adam Kirk served the suspension without pay in June, officials said.

According to records released by the Fayette Schools under an open records request, Kirk allegedly tried to interfere with a Deep Springs site-based council election last school year by encouraging team leaders to run for a council seat. He also allegedly made derogatory comments about council members who were seeking re-election.

There also were allegations of offensive language during team meetings and individual comments of a sexual nature.

According to the records, the district will develop a corrective action plan with Kirk, and a letter outlining the allegations will be sent to the state Education Professional Standards Board.

Finalists on Film: Lu Young

This from Fayette ABC:

In these short video clips from her public visit to FCPS on June 7th, Lu Young provides her perspective on a number of specific issues, including standardized testing, assessment, Senate Bill 1, and so forth.  In addition to the short thematic clips, we have included full video footage of Ms. Young's press conference and public forum.

Standardized Testing and Assessment

Senate Bill 1 and Assessment

Teacher Qualifications and Expectations

Transparency and Public Input

Achievement Gap

Whew

Well, I'm glad that's over.

Running background checks on the three finalists for the FCPS Superintendent's job has sucked most of the oxygen out of the past week's work load. But I still was able to begin a new summer course and sit in on the Prichard Committee's spring meeting and...well, that was about it. Despite the fact that I was already pretty familiar with the candidates, I still think it's a good idea to take nothing for granted and see what's in the record. After all one does not know what one may find... until one looks.

Quick Links:
The Book on Lu Young
The Book on Elaine Farris
The Book on Tom Shelton

But in the meantime, I've fallen behind on other concerns.

• Complaints (with supporting documents) KSN&C has received on the FCPS Transportation Department has convinced me that a full-scale internal investigation of departmental processes is probably warranted. Perhaps that should be one of the first pieces of business the new Fayette super should turn their attention to.
• Students at Hancock County High School are crying foul after an explicitly fundamentalist Christian, anti-abortion, abstinence-only assembly was held in May, where representatives of CareNet Owensboro "shared the love of Christ" with students.
• And where is FayetteABC in the hunt for a new superintendent? We've heard from Erik and Cheryl Myrup, but haven't had the chance to respond, other than to post a comment from Erik. Let's talk about that one now. 

Yesterday, Fayette ABC posted the following statement regarding their stance on the search.

FayetteABC Statement on the FCPS

Superintendent Search (June 6, 2011)

FayetteABC now speaks for more than 375 Fayette County residents in at least 14 schools who are concerned about the effects of standardized testing. However, we do not feel that we have the right to speak for individual signers in terms of specific superintendent choices. FayetteABC founding members will be attending daily parent focus groups as well as the superintendent open forums, and have submitted specific questions about standardized testing to these venues. Additionally, we will be posting relevant information regarding candidate responses on our website each night. We encourage anyone who shares our concerns to consult our website and consider these reports along with other available sources of information when forming opinions about the best superintendent for our district.

Please keep in mind that notwithstanding the many community groups that will be meeting with the three candidates, the final decision will ultimately be made by the Fayette County Board of Education. In this regard, we would especially encourage you to write directly to your school board member sharing concerns and experiences related to standardized testing practices, as well as any additional matters that you feel are important. While none of the current candidates is necessarily a reformer in terms of standardized testing, some may be more likely than others to engage educators, parents, and the broader community in ongoing and open discussions about standardized testing and other important issues. In this regard, it is crucial to consider candidates’ leadership styles alongside the test-related practices in their current districts.

Contact information for individual board members is available on the FCPS website at http://www.fcps.net/administration/board-of-education/members. Additionally, the following e-mail address can be used to write directly to all five board members at once: superinput@fayette.kyschools.us.

We encourage everyone to attend the community open forums. Most importantly, we urge you to communicate directly with board members about your preferences and concerns.

FayetteABC was the topic of some informal conversation at Prichard this past weekend, too. The folks I talked to seem to believe the group is sincere, and has a point. The challenge is seen as the need for FCPS to strike the right balance.

Respect and Disrespect

Amid the good news for Fayette County Schools, gleaned from the recent TELL Survey, are a couple of bothersome items that mirror comments made by KSN&C readers on occasion. Many teachers feel disrespected. Not only that, but they feel unable to voice concerns.

Fayette County scores 10 points below the state average when it comes to teachers feeling that an atmosphere of mutual trust and respect exists. Similarly, Fayette County lags 10 points behind the state when it comes to feeling comfortable raising important concerns. Even fewer teachers believe that there is an appropriate amount of input allowed teachers on decision making.

While not a part of the survey, the same concerns have been echoed by a growing number of district transportation employees for a number of months now. In fact, we've received a new batch of transportation documents that would seem to establish a generalized atmosphere of disrespect (and perhaps worse) and even ridicule of bus drivers. And it is very clear these drivers fear retaliation if district administrators were to discover that they have "talked out of school."

This perceived disrespect manifests itself in various ways but most consistently it seems to be a general tone - how the administration addresses the bus drivers. Folks know when they are being "talked down to" and they resent it. The drivers say it all starts with Director John Kiser.

For example, below is a photo sent to KSN&C of a notice that was taped next to the department of transportation time clocks recently, apparently instructing adults on what they may, and may not, do while using the restroom.


A little clarification might be in order.

The very-inclusive-sounding "WE" sheet referred to above, is a weekly missive from Kiser that announces events, and more often, instructions. But if the drivers are to be believed, it is also a place where the director ridicules certain individuals if he is unhappy with them for some reason. Although not personally identifiable, it is pretty clear that someone is being addressed, and those "in the know" (including drivers from time to time) are usually aware of who it is. Remember this?

Here's what one driver thinks the above message really says:

Kiser: I've already told you this, but apparently somebody is so stupid that I have to say it again. If you absolutely must use the restroom at a school, go one at a time. And you dummies need to be told what you can and can't do while you are in there....

Now I remember enough from elementary school to know what #1 and #2 are, but it made me wonder if there was a #3. The driver reminded me that, for women, there is a #3 but it's apparently forbidden by the transportation department's potty police.

"I'm an adult. When I go in there I might wash my face and I'll certainly wash my hands. I don't need anybody telling me what my bodily functions are," one driver told KSN&C.

This driver said they called Human Resources downtown and told them about the sign. HR reportedly said, "Oh my God, you've got to be kidding me." The message was subsequently altered but not before the above photo was taken.

There is a leadership theory that suggests less-educated employees may need more direction than would be given highly-skilled professional personnel. I get that. But nowhere in that theory does it suggest that patronizing or humiliating language does anything to build the capacity of the work force or foster the camaraderie Kiser's "WE" would suggest. Sarcasm doesn't work as a means of improving the performance of students, and outside of boot camp, it doesn't work with adults either.

The drivers say they are told that the WE sheet should be taken as department policy. But a review of several We Sheets (...or is it the wee wee sheet now?) over several months reveals a tone and purpose that is inappropriate for any policy document.

For example, on February 24th, after one employee grumbled about not being selected for a promotion, instead of (or perhaps in addition to) talking to the individual personally the We Sheet carried an item on "Why I wasn't selected for Driver Trainer School" that said, "Was it because of my three preventable accidents? Was it because 13 of my last 17 absences were on a Monday or Friday?..."

On May 12th Kiser (or perhaps We sheet editor Mona Seratt) favored the staff with the definition of "prattle." Why? Was that a message to the troops that their complaints were meaningless?

Apparently, like when Kiser defined a "blogger," the We Sheet is used to send surreptitious messages. Well, the messages are getting through. And too often they spout disrespect.

Fayette School Board Could Hire Superintendent Next Month

This from Jim Warren at H-L:

The Fayette County Board of Education could select a new school superintendent before mid-June, according to a tentative schedule worked out Monday afternoon.

The board has said it wants to have a new superintendent in place by July 1 to succeed Stu Silberman, who announced in February that he is stepping down after leading the Fayette schools for seven years.

Board members met for more than two hours Monday with representatives of the search firm, McPherson & Jacobson LLC, to discuss plans for the final phase of the search. Jacobson officials also gave members a summary of comments received during public forums and stakeholder groups late last month seeking input on the qualities being sought in the new superintendent...

[T]he final phase of that process will kick in after May 16, the deadline for superintendent candidates to submit applications.

McPherson & Jacobson will deliver applications to the district central office on May 19. The district's six-member superintendent screening committee would then review the applications, planning to select top candidates on May 25 in consultation with representatives from McPherson & Jacobson.

The names of recommended candidates would go to the school board for discussion on May 31...it is expected that they would select three to possibly five finalists in executive session at that meeting. The names would be made public...

Board members plan to bring the finalists to Lexington for interviews with board members, and forums with key groups and members of the general public during June 6-10...

Parents Furious When Buses Strand Field Trip Kids in Cincinnati

As though gas prices were not as issue, two Fayette County Public School buses were ordered to make two round trips to Cincinnati for one field trip Thursday: one round trip to take 120 Sandersville Elementary School second graders to the Cincinnati Zoo, and one more trip to pick them up.

This, because the transportation department, after approving the field trip and calculating costs to the school, directed the drivers to come back to Lexington and run their regular routes for the afternoon, and only then return to Cincinnati to get the kids - effectively doubling the expense of the trip.

A KSN&C reader reported, "I heard that the buses did not return to Cincinnati until around 7 pm and they didn't get home until around 9 pm. I heard that one of the students involved in this mess was Doug Barnett's kid and that he may have been pretty irate at transportation management about how all of this went down."

KSN&C was able to confirm that one of the second graders was indeed David Barnett, son of newly-elected Board of Education member Doug Barnett, and the elder Barnett was a chaperon on the trip. Like other students in his class, David paid his $10 for the field trip; half for the zoo and half for the bus. The students expected to leave Lexington around 8:30 am and head back home around 4:30 pm, but it was 9:30 am before they could get away.

It would be 11 am before the students reached the zoo. That's roughly when Barnett learned that the buses had been ordered back to Lexington, leaving a large number of seven-year olds and chaperons without transportation, should some unforeseen emergency have made that an issue.

By the time the buses made their afternoon runs back in Lexington and then returned to Cincinnati, it was 7:15 pm. Parents who were expecting their children to return home around 6 pm saw them next somewhere around 9 pm. A number of them were livid. If we assume that most of the children started heading to school somewhere around 7 am that morning, then the planned 9-hour day turned into a 14-hour day.

KSN&C asked Barnett to confirm whether he was irate, as our reader had suggested. He said, "I would have used the term furious." As a chaperon on the trip Barnett "saw the whole thing play out...I would have been deeply concerned even if David's class were not involved," Barnett said.

In the wake of the parent's response to the second grade trip a planned trip to the Newport Aquarium by Sandersville's first grade class was cancelled because of these same transportation issues.

Barnette "asked [Fayette County Schools Superintendent] Stu [Silberman]to investigate and resolve this matter because it should not be an event to get kids to and from field trips." He got district policy in return.

"I was told that this happened because we have a shortage of drivers and that the school has the option of using charters." Silberman referred Barnett to Policy 06.14 AP.1. One wonders if the school will now be billed for two round trips.

"There is also some notice (not in policy) that says substitutes can't be used for field trips and that two one-way trips could occur so that all routes can be completed," Barnett said. "I think this is process is too confusing and inefficient...for younger kids. I think this needs to be examined more because who knows how many times this has happened."

Barnett also wonders why a city the size of Lexington has a driver shortage.

On reflection, Barnett said "the teachers and staff at Sandersville did an absolutely wonderful job with the kids at all times on the trip. I told Stu I would have given those five teachers a gold star because of the transportation issue they had to deal with. I'm proud of each of them."

"I've calmed down a whole lot since Thursday," Barnette said.

This from FCPS Policy:

TRANSPORTATION 06.14 AP.1
Use of Buses- Special Activity Trips

Categories of Service
Regular Service - Regular route service consists of transportation of students from home to school and back, including Kindergarten, School for the Deaf, School for the Blind, and Vocational School transportation.

Program Service - Program service includes Extended School Services (includes Summer School), Community Based Instruction, Child Development, Safety City, Dental and Clothing trips, Detention Programs, Family Resource Center, and Teen Mother Program.

Activity Trips - Activity trip service includes field trips, band and athletic trips, Arts in Basic Education (ABE), After School Activities and other non-recurring services.

Payment for Services
Regular and program services will be funded from within either the Transportation Division or from special program funds administered from the District level. Activity trip costs will be billed directly to schools.

Basis for Cost
Transportation service costs are based on a formula consisting of two (2) primary components:
1. Bus cost per mile, which is calculated by taking the entire transportation budget (less driver, driver assistant, and clerical personnel costs), then dividing the remainder by the total number of miles driven during the fiscal year.
2. Driver’s salary, which bill regular hours at an average of the existing regular hourly rates of the drivers on the trip list. Overtime hours are billed at 1½ times the regular average. Equity of billing is obtained by the establishment of an average cost for trips within a 50 mile radius of Lexington.

This process permits all schools to pay the same amount for trips to the same destination. Academic and special activity transportation services will be billed either to schools or to central program managers at a rate based on the above formula. The trip cost will be calculated annually and included in budget preparation guidance.

Driver Compensation
Drivers shall be paid for all actual driving hours plus time they are required to be on duty. However, such trips shall not provide less compensation than if the driver had been working normal confirmation times.

Availability of Buses
Buses will be made available as needed, except that activity and program services are restricted to times other than when regular services are being provided, and the number of buses assigned to special activity and ABE events, together, shall not exceed 30 buses per day.

Priority of Service
Within the previous priorities, at the beginning of each school year buses shall be reserved on scheduled ABE days for ABE events until October 1. Unreserved buses shall at that time become available for assignment for other trip purposes.

Use of Buses- Special Activity Trips
Bus Reservations
Trips sponsors wishing to request bus transportation for a school trip must complete the required Transportation Request Form, which can be accessed from the Transportation listing on District’s web site (Downloadable Forms).
Availability of buses on a particular date may be obtained and the transportation service reserved for a period of 24 hours by calling the Transportation Division prior to close of business on the following day in order to maintain the reservation.

Use of Food Services
Any time activity trips take students away from their school over the lunch period, teachers are responsible for notifying the cafeteria manager at the time the trip is confirmed. Whenever feasible, box lunches prepared by the cafeteria staff should be considered. This will address the problem of forgotten lunches and will make the trip less expensive for students qualifying for free or reduced-price meals. The Transportation Request Form contains a space for cafeteria requirements.

Seniority Cycle
The seniority trip list for Category II trips shall be cycled to the beginning of the list each week, or more often as necessary to ensure that trips are assigned to the most senior drivers.

Removal from Trip List
Drivers shall be removed from the trip list after turning down three (3) trips. Removal from the list will remain in effect for 90 days. Turn down of a trip within 24 hours of the trip date will result in immediate removal from the trip list, unless the driver was physically unable to take the trip.

Relief Drivers
A relief driver shall not be assigned trips that will interfere with his/her duties as a relief driver (i.e., overnight trips).

Review/Revised:7/26/10

Price is Right

FCPS Board Chair John Price added his own name to the list of employees and parents who will pick Fayette County's next superintendent.

As Jim Warren points out, he is the only board member with specific superintendent search experience, and adds a male perspective to the group.

The board also ratified the election of the other members of the superintendent screening committee yesterday.

This from H-L:

The Fayette County Board of Education gave final approval Monday night of a superintendent screening committee, but the six-member panel won't have any work to do for a while...

The school board has requested proposals from search firms that might help in recruiting candidates for superintendent. Proposals are expected this month, and it isn't clear when the board will advertise for superintendent candidates.

Once applications are in hand, the screening committee will review them and suggest a list of finalists to the full school board.

The board wants to name a successor for outgoing Superintendent Stu Silberman by July 1.

Women Rule FCPS Superintendent Screening Committee

One parent representative and four employee representatives were selected by the vote of their respective constituencies to help select the next superintendent of the Fayette County Schools.

And the winners are...

• 16th district PTA President Jessica Berry, Parent Representative
• Fayette County Education Association President Jessica Hiler, Teacher Representative
• Henry Clay High School Librarian Amanda Hurley, Teacher Representative
• Veterans Park Elementary Principal Amy McVey, Principal Representative
• Transportation Department Manager Kim Webb, Classified Representative

They wil be joined by one member of the board to be selected by the board Monday night.

The committee is charged with the responsibility of screening all applicants for the position and recommending a list of finalists to the board of education. They have about three months (2 1/2 really) to complete their work if the district is going to meet its self-imposed July 1st deadline.

Blogging from Under the Bus

"A blogger is likened to the rail bird

that hasn't been anywhere,

hasn't done anything,

and is contemptuous of anyone who is

waging the day-to-day battles of life."

---from John Kiser's weekly communication

Clearly bloggers are defective. Everybody knows that. We're all unemployed, living in our mother's basements - just lounging around in our pajamas all day sucking up beer and hogging the doritos. So it came as a surprise to learn that FCPS bus honcho John Kiser fired a little volley at us lowly pitiful souls in his most recent transportation communication. Anyone know what prompted that?

As is our custom, KSN&C followed up on and earlier allegation we received. I wrote to district spokeswoman Lisa Deffendall to see if she could now confirm and comment on the following allegation?

That a bus driver was passed over for a position. That the employee grieved. After that, the employee was disciplined for not following in line during a field trip (or something like that) and was removed from the trip list, reducing the employees ability to earn wages. And that, by the time of Mary's ruling, 90-days had passed, rather than the 10 days required by policy, by which time, the disputed position had gone to another driver.

(NOTE: Careful KSN&C readers will note that any inuendo regarding racial motivations related to the alleged action has been dropped from the above description. Additional information from our transportation moles make that initial claim more doubtful.).

Deffendall responded,

I spoke with Stu about this and he said that he has looked into the situation, but because it is a personnel matter, he is not able to comment on it.

OK so before, the district had to look into it, and now it's a "personnel matter." We did some more investigating and it seems like that's not all it is.

Turns out the bus driver found his or her way to Frankfort and is now being represented by a certain former FCPS in-house counsel - indeed claiming that his or her grievance was buried for 90-days while the job the driver was seeking went elsewhere.

So, now Fayette County Superintendent Stu Silberman has another reason not to comment, since this matter appears to be under litigation.

Wait. It gets better.

Silberman had his outside counsel, Bob Chenoweth, send Brenda Allen a formal request to withdraw from representing the bus driver. The district is claiming that Allen's representation constitutes a conflict of interest because she would only have known about "problems with John Kiser" from being Counsel to the Board.

But get this.

When Allen was a law student in the 1990s, her job, while working for JoEllen McComb (who represents Rosalind Hurley-Richards), was "to receive all of the complaints from Fayette County School bus drivers, many of whom ultimately sued Kiser, for retaliation, harassment etc."

Allen reminded Chenoweth that he was the attorney on the other side of one of those cases.

I told them I would not be withdrawing from representing her or any of my Fayette County employee clients and that I carefully review the rules to ensure that there is no conflict before I accept their request to be their attorney. I told him it was ironic that 14 years later I have bus drivers coming to me about Kiser.

Allen told KSN&C that she was delighted to be working with Chenoweth again (even as opposing counsel) and Allen sent her regards to his wife and invited the couple to the grand opening of her restaurant.

I'm pretty sure the Hanna Report glossed over the potential fallout from outsourcing legal services in Fayette County. I'm also starting to understand why Kiser's day-to-day life is full of battles.

Our sources joked that, to them, Kiser was the true "blogger" since he doesn't have a CDL and can't drive a bus.

Apologies to BARBEE for abusing a perfectly good cartoon.

Petrilli's Appeal

The Kentucky Court of Appeals takes up the case of Petrilli v Silberman Tuesday.

In preparation for the hearing KSN&C asked both sides for a copy of their appellate briefs, which are essentially public records. Only one side (attorney J Dale Golden) complied with our request. In a conversation with FCPS attorney John McNeill, KSN&C was told that he didn't see any problem giving us a copy - that is until he realized who we were. Once he recalled, he declined. Go figure.

The central issue on appeal is a threshold jury instruction that boiled the entire case down to the question of whether Appellant Peggy Petrilli, the former principal of Booker T Washington Academy, voluntarily resigned - period. Covering the trial, I recall being stunned by that instruction at the time.

Jurors deliberated for about 3 1/2 hours before concluding that Petrilli "voluntarily resigned from her position as principal of Booker T. Washington Academy on August 27, 2007."

Petrilli claims the jury instruction was inappropriate since she was actually forced out by Fayette County Schools Superintendent Stu Silberman in what is known as a constructive discharge.

KSN&C Timeline of the events here.

Golden throws a lot of spaghetti at the wall arguing:

· Federal law is applicable in interpreting the Kentucky Civil Rights Act.

· The trial court erred in creating a threshold jury instruction that superseded the elements for reverse discrimination, retaliation, and whistleblower.

· Petrilli Was Entitled to a Directed Verdict on Her Reverse Race Discrimination Claim.

· Petrilli’s Motion For a Directed Verdict On Her Retaliation Claim Should Be Granted AND THE THRESHOLD INSTRUCTION WAS ERRONEOUS.

· the trial court erred in failing to give a separate instruction on whistleblower, failing to direct a verdict, and failing to give a punitive damages instruction.

· It was Error to Dismiss Petrilli’s Constitutional Claims and the Trial Court Erred in Failing to Direct a Verdict on Behalf of Petrilli on her Constitutional Claims.

· THE TRIAL COURT ERRED IN DISMISSING THE CLAIMS AGAINST ALLEN.

· The trial Court erred in its handling of the Batson issue.

· THE TRIAL COURT ERRED IN OVERRULING PETRILLI’S MOTION IN LIMINE ON CHARACTER EVIDENCE.

· THE TRIAL COURT ERRED IN REFUSING TO SANCTION ATTORNEY MCNEILL AND IN REFUSING TO ALLOW THE SECOND DEPOSITION OF DOUG ADAMS.

· THE TRIAL COURT ERRED BY PREVENTING PETRILLI FROM TESTING THE SUFFICIENCY OF THE “ADVICE OF COUNSEL” DEFENSE.

· THE TRIAL COURT ERRONEOUSLY ALLOWED MCNEILL TO READ FROM DEPOSITIONS. (emphasis in original)

Petrilli is asking the Court of Appeals to :

1. Reverse the trial court for use of a threshold instruction;

2. A directed verdict for Petrilli on the issues of protected class, being qualified for her position, and being replaced by a person of a different race;

3. A directed verdict for Petrilli on the adverse employment issue or, at the very least, a jury instruction setting forth the elements of constructive discharge as tendered by Petrilli;

4. Reverse the trial court and find that Petrilli is entitled to a punitive damages instruction regarding the whistleblower claim;

5. Reverse the trial court’s directed verdict on Petrilli’s constitutional claim;

6. Reverse the trial court’s dismissal of the defamation claim against Allen and the other Defendants;

7. Reverse the trial court’s arbitrary discovery deadline of August 27, 2007;

8. Allow Petrilli to take the discovery deposition of Allen;

9. Reverse the trial court’s ruling on the motions in limine regarding character evidence;

10. Allow Petrilli to retake Adams’ deposition, sanction opposing counsel for his misconduct and award costs and attorneys’ fees; and

11. Direct a verdict in favor of Petrilli on all constitutional claims;

12. Permit Petrilli to test the sufficiency of the “advice of counsel” defense;

13. Reverse the trial court’s erroneous ruling which allowed for improper impeachment and rehabilitation; and,

14. Remand this matter for a new trial.

The crux of the appellant's brief is...

B. The trial court erred in creating a threshold jury instruction that superseded the elements for reverse discrimination, retaliation, and whistleblower. (Preserved at 7/28/09, 08:05:20—09:20:00 a.m., tape 22/3/09/CD/108-8).

This Court uses a de novo standard of review for erroneous jury instructions.[1] The jury was given the following improper threshold jury instruction:

Do you believe from the evidence that the Plaintiff, Peggy Petrilli, voluntarily resigned from her position as principal of Booker T. Washington Academy on August 2, 2007?[2]

The jury marked “yes” and returned to the courtroom where the trial judge discharged them from further duties. The threshold instruction was given in error because it is completely different from the elements of Petrilli’s claims for reverse discrimination, retaliation, and whistleblower, as demonstrated by the jury instructions given by the court.[3]

Petrilli was entitled to a jury instruction regarding her claim of constructive discharge. The standard for constructive discharge is whether the “conditions created by the employer’s action are so intolerable that a reasonable person would feel compelled to resign.”[4] Thus, what may appear to a layman on the jury to be a voluntary resignation may in fact have been compelled by an employer’s conduct. Petrilli was entitled to a jury instruction explaining the difference. In addition, proof of a constructive discharge is but one of a myriad of things that satisfy the requirement of an adverse employment action that is necessary for a reverse discrimination instruction[5] and a retaliation jury instruction.[6]

In Brooks, the court noted: “While constructive discharge may constitute an adverse employment action within the meaning of the KCRA, not all adverse employment actions constitute constructive discharge.”[7] Although Petrilli submitted a constructive discharge instruction, none was given.[8] Constructive discharge instructions are submitted to the jury in these types of cases because a constructive discharge is a type of adverse employment action.[9] The pivotal issue is whether the employee felt compelled to resign. However, the act of resignation as a part of a constructive discharge is but one of many potential adverse employment actions available to support a jury verdict.

(1) The Elements of a reverse discrimination claim are as follows:

(a) Petrilli is a member of a protected class;

(b) She experienced an adverse employment action;

(c) She was qualified for her position of employment; and

(d) She was replaced by a person of a different race.[10]

(2) The elements of a retaliation claim are as follows:

(a) She engaged in a protected activity under KRS 344.040;

(b) This activity was known to the Defendants;

(c) Defendants took an adverse employment action against Petrilli; and

(d) A causal connection exists between that adverse employment action and the Petrilli’s exercise of the protected activity.^[11]

(3) The elements for a whistleblower claim are as follows:

(a) She reported actual or suspected violations of law, mandates, rules or policies;

(b) The Defendants caused her to be subjected to reprisal or directly or indirectly used official authority or influence against her as a result of her report.[12]

The trial court specifically found that Petrilli waived all of her claims against the Defendants when she resigned.[13] This rationale on the part of the trial court was erroneous because employers cannot absolve themselves of liability by successfully compelling employees to resign. If Petrilli resigned on a Wednesday, it does not negate retaliation exercised against her in violation of the whistleblower statute that occurred on the prior Tuesday or any day prior to that. In fact, it is not uncommon for employees to resign from their employment when employers act in an unlawful manner.

The discrimination and retaliation claims share a common element of an “adverse employment action.” Thus, if Petrilli resigns on a Wednesday, it does not negate retaliation, or discrimination, or reprisal that occurred on the prior Tuesday or any day prior to that. Again, it is not uncommon for employees to resign from their employment when employees act in an unlawful manner. Petrilli’s resignation is not dispositive because constructive discharge is but one of a myriad of potential adverse employment actions that satisfy the prima facie elements of discrimination and retaliation.

[W]hile constructive discharge may constitute an adverse employment action within the meaning of the KCRA, not all adverse employment actions constitute constructive discharge.[14]

Thus, an adverse employment action includes, but is not limited to, “constructive discharge.” Violations of the law can occur prior to, during, or even after an employee attempts to resign.

Voluntariness is but one component of the larger issue of constructive discharge. Along the same vein, Parker v. Board of Regents of Tulsa Junior College, held that a “resignation is involuntary and coerced when the totality of the circumstances indicates the employee did not have the opportunity to make a free choice.”[15] Scharf v. Dept. of Air Force advises that, in order “to determine whether a resignation or retirement is voluntary, a court must examine the surrounding circumstances to test the ability of the employee to exercise free choice.”[16] Furthermore, “voluntariness is vitiated when one” of the following occurs:

· Employee resigns under duress;

· Employee unsuccessfully tries to withdraw resignation before its effective date;

· Employee submits a resignation under time pressure;

· Employee fails to understand the situation due to mental incompetence; or

· Resignation obtained by misrepresentation or deception.[17]

There was ample evidence presented concerning the strict time constraints imposed on Petrilli. This is important, because a true, voluntary resignation is done when the employee wants to do it, not when the employer orders it done by a certain time.

In Commonwealth of Kentucky v. Stosberg, the Plaintiff signed a resignation letter after her employer attempted to force her to transfer to another location.[18] In effect, the circumstances her employer placed her in left her with no other option. The court thus determined that a constructive discharge occurs where the “conditions created by the employer’s actions” compel the Plaintiff to resign.[19] Northeast Health Management, Inc. v. Cotton, et al. also deals with a situation in which two employees tendered resignation letters.[20] In that case, the employees resigned after their supervisor stopped speaking to them and began assigning their lunch and break times. The jury ultimately found that the employees had been constructively discharged. The Court of Appeals upheld the jury’s decision. In doing so, the Court of Appeals stated that, “while the conditions alleged may not have been the most egregious imaginable, they surely rise to the level that the jury had sufficient evidence to find a constructive discharge.”[21]

Walther testified at length about Petrilli’s financial constraints due to the fact that, unlike teachers, administrators are not covered by the KEA insurance and, therefore, administrators have to pay for their own attorneys.[22] Thus, Petrilli would have paid $25,000.00 at a minimum to go through the tribunal process, while having no money coming in from the school, and while having to care for her adult son, who resides with her and has the mind of a 5-year-old.[23] Certainly, this Court can see that Petrilli recognized that she had no choice and that Silberman was not going to follow the due-process procedures set out in the KAR, KRS, and the Board’s policies. Therefore, the only option Petrilli had was to resign and try to obtain employment elsewhere. She attempted to do this and part ways with Silberman; however, Silberman and Allen manufactured the “investigative memorandum” some 8 months later as an insurance policy against the lawsuit Petrilli was about to file. Having successfully tarred and feathered Petrilli, despite the subsequent finding by the Kentucky Department of Education that there was not enough evidence to support the charges, Petrilli is unemployable in her chosen profession.

In Schultz v. U.S. Navy, the court concluded that “an ostensibly voluntary resignation which was submitted as a result of agency coercion…must be treated the same as an adverse action.”[24] Furthermore, a

resignation is not voluntary where an agency imposes the terms of an employee’s resignation, the employee’s circumstances permit no alternative but to accept, and those circumstances were the result of improper acts of the agency.[25]

The fact that Petrilli’s resignation was not voluntary is demonstrated by the correspondence between Walther and Allen.[26] It was Allen who added on to the correspondence that Petrilli would not reapply in the future for a position with Fayette County Public Schools.[27] It is clear that, if Petrilli had truly voluntarily resigned, she would have simply walked away. It is unconscionable that she had to try and negotiate with Silberman that she be able to leave her employment without mudslinging.

Silberman’s article in the Herald-Leader, stating that Petrilli was not going back to BTWA; his offer of the Northern principalship, followed by a vindictive decision to threaten Petrilli with suspension; and Silberman’s refusal to comply with the evaluation instrument, due process, and evaluation requirements mandated by the KAR and KRS are all indicative of a constructive discharge. “Constructive discharge presents a question of fact that, in jury trials, should be decided by the jury and not the trial court.”[28] The court’s threshold instruction was thus erroneous.

KSN&C will report from the hearing on Tuesday.

---

[1] Hamilton v. CSX Trans., 208 S.W.3d 272 (Ky.App. 2006).

[2] Record at 2162.

[3] Record at 2163-2167.

[4] Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 807 (Ky. 2004).

[5] Record 2163.

[6] Record 2165.

[7] Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 807 (Ky. 2004).

[8] Record at 2053-2070.

[9] See, e.g., Irving v. Dubuque Packing Co., 689 F.2d 170, 173 (10^th Cir. 1982).

[10] Fuelling v. New Vision, 2008 U.S.App. LEXIS 13915 (6^th Cir, 2008) at 14; see also Logan v. Denny’s, 259 F.3d 558 (6^th Cir. 2001) Further, according to Harding v. Gray, 9 F.3d 150, 152 (D.C., 1993), the burden for proving these prima facie elements is “not onerous.”

[11] Brooks v. Lexington-Fayette Urban Co. Housing Authority, 132 S.W.3d 790, 803 (Ky. 2004).

[12] Record 2167.

[13] Hearing on the jury instructions to be given, 7/28/09, 08:10:47—08:11:51 a.m., tape 22/3/09/CD/108-8.

[14] Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 807 (Ky. 2004).

[15]Parker v. Board of Regents of Tulsa Junior College, 981 F.2d 1159, 1162 (10^th Cir. 1992).

[16]Scharf v. Dept. of Air Force, 710 F.2d 1572, 1574 (U.S. Ct. App. Fed. Cir. 1983) (citing Pearlman v. United States, 490 F.2d 928, 993 (Ct. Cl. 1974)).

[17] Scharf at 1574. (Emphasis added.)

[18] Commonwealth of Ky v. Stosberg, 948 S.W.2d 425 (Ky. App. 1997).

[19] Id. at 427.

[20] Northeast Health Management, Inc. v. Cotton and Howell, 56 S.W.3d 440 (Ky. App. 2001).

[21] Id. at 446.

[22] Walther Test. 07/20/09, 02:00:57, tape 22/3/09/CD/108-3.

[23] Walther Test. 07/20/09, 02:24:04, tape 22/3/09/CD/108-3.

[24] Schultz v. U.S. Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987).

[25] Id. See also Edgerton v. Merit Systems Protection Board, 768 F.2d 1314, 1317 (Fed. Cir. 1985.).

[26] Petrilli Test. 07/16/09, 03:27:50 p.m., tape 22/3/09/CD/108-2; see also PX 13, App. 28.

[27] Id.

[28] Brooks v. Lexington-Fayette Urban Co. Hous. Auth., 132 S.W.3d 790, 807 (Ky. 2004).

---

[1] Hamilton v. CSX Trans., 208 S.W.3d 272 (Ky.App. 2006).

[2] Record at 2162.

[3] Record at 2163-2167.

[4] Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 807 (Ky. 2004).

[5] Record 2163.

[6] Record 2165.

[7] Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 807 (Ky. 2004).

[8] Record at 2053-2070.

[9] See, e.g., Irving v. Dubuque Packing Co., 689 F.2d 170, 173 (10^th Cir. 1982).

[10] Fuelling v. New Vision, 2008 U.S.App. LEXIS 13915 (6^th Cir, 2008) at 14; see also Logan v. Denny’s, 259 F.3d 558 (6^th Cir. 2001) Further, according to Harding v. Gray, 9 F.3d 150, 152 (D.C., 1993), the burden for proving these prima facie elements is “not onerous.”

[11] Brooks v. Lexington-Fayette Urban Co. Housing Authority, 132 S.W.3d 790, 803 (Ky. 2004).

[12] Record 2167.

[13] Hearing on the jury instructions to be given, 7/28/09, 08:10:47—08:11:51 a.m., tape 22/3/09/CD/108-8.

[14] Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 807 (Ky. 2004).

[15]Parker v. Board of Regents of Tulsa Junior College, 981 F.2d 1159, 1162 (10^th Cir. 1992).

[16]Scharf v. Dept. of Air Force, 710 F.2d 1572, 1574 (U.S. Ct. App. Fed. Cir. 1983) (citing Pearlman v. United States, 490 F.2d 928, 993 (Ct. Cl. 1974)).

[17] Scharf at 1574. (Emphasis added.)

[18] Commonwealth of Ky v. Stosberg, 948 S.W.2d 425 (Ky. App. 1997).

[19] Id. at 427.

[20] Northeast Health Management, Inc. v. Cotton and Howell, 56 S.W.3d 440 (Ky. App. 2001).

[21] Id. at 446.

[22] Walther Test. 07/20/09, 02:00:57, tape 22/3/09/CD/108-3.

[23] Walther Test. 07/20/09, 02:24:04, tape 22/3/09/CD/108-3.

[24] Schultz v. U.S. Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987).

[25] Id. See also Edgerton v. Merit Systems Protection Board, 768 F.2d 1314, 1317 (Fed. Cir. 1985.).

[26] Petrilli Test. 07/16/09, 03:27:50 p.m., tape 22/3/09/CD/108-2; see also PX 13, App. 28.

[27] Id.

[28] Brooks v. Lexington-Fayette Urban Co. Hous. Auth., 132 S.W.3d 790, 807 (Ky. 2004).