Lawsuit Over Teacher Sickout Records Could Move To Federal Court

May 6, 2019

Credit Liz Schlemmer

The Kentucky Labor Cabinet filed a notice of removal Thursday, seeking to move a lawsuit Attorney General Andy Beshear and the Jefferson County Teachers Association filed in state court to federal court.

The lawsuit sought to block subpoenas the Kentucky Labor Cabinet issued to 10 school districts to seek attendance records that could identify school employees who called in sick to protest during the last legislative session.

Three days after Beshear filed that lawsuit, the Labor Cabinet sent a subpoena to the Kentucky Department of Education, with an immediate deadline, to hand over the attendance records the department had previously collected from school districts. Kentucky Commissioner of Education Wayne Lewis has confirmed that his department submitted those documents.

“It was my preference that any investigation the Labor Cabinet undertook was directly with school districts and did not use the department as kind of the medium,” Lewis said. “Because I don’t want the public to be confused in thinking that it is our investigation.”

Lewis declined to comment on how the Labor Cabinet should handle the investigation, but in past statements he has noted it is within the Labor Cabinet’s jurisdiction to fine public employees who strike.

The Labor Cabinet could use the records to investigate whether teachers participated in an illegal work stoppage, and fine those found in violation of state law up to $1,000 for any offense. Even so, Beshear said his case still matters.

“I might not be able to stop the Labor Cabinet from getting the information, but the second piece of that was stopping any fines,” Beshear said. “We’re going to continue this lawsuit, and I’m going to make sure no teacher is fined a single dollar.”

The lawsuit argues the Labor Cabinet does not have the authority to punish teachers, because it is not their employer, and no school districts have brought action against their employees. Beshear has said the case is a matter of state labor law, as well as free speech rights protected by both the Kentucky Constitution and the First Amendment.

Beshear filed the case in state court, but the Labor Cabinet is now requesting to move the case to federal court. Labor Cabinet Secretary David Dickerson filed a notice of removal to petition for the suit to be moved from Franklin Circuit Court to the U.S. District Court of the Eastern District of Kentucky. The notice of removal argues the case asserts claims “arising under the Constitution, laws, or treaties of the United States,” and therefore should be heard in federal court.

“These subpoenas are merely a first step in the Cabinet’s investigation and do not indicate what action, if any, may ultimately be taken by the Cabinet,” a Labor Cabinet spokeswoman said in a prepared statement.

JCTA President Brent McKim said he thinks the notice is an effort to influence the outcome.

“What they’re probably doing is judge shopping for what they feel like is a more favorable judge,” McKim said. “They have not had a very successful record in state court, so they may think that they have a better chance in federal court.”

Franklin Circuit Court Judge Phillip Shepherd was originally scheduled to hear the suit Monday, May 6, to consider whether to grant an injunction against the subpoenas to school districts.

Gov. Matt Bevin has similarly accused Beshear of filing the suit in state court as a means of court shopping. Bevin has attacked Shepherd in the past, after he ruled against Bevin in multiple cases brought on by Beshear.