Ziegler & Schneider attorney, Matthew C. Smith was a guest lecturer last night at Chase Law School for a Contract Drafting class. Matt spoke to law school students on the importance of clear legal drafting and provided tips for negotiating contracts. As part of the firm’s Business & Corporate Practice Group Matt has a lot of experience drafting contracts for various businesses, including but not limited to, employment contracts, representing physicians in contracting for employment, and commercial transactions.
Ziegler & Schneider attorney, Shane Sidebottom, is quoted extensively in a Bloomberg News national story on a Whistleblower case that Ziegler and Schneider is pursuing in Frankfort, Kentucky, on behalf of its clients.
Bloomberg Law Daily Labor Report
Dueling Court Orders Leave Kentucky Whistleblower Suit a
By Alex Ebert Posted Dec. 28, 2018, 2:46 PM
Opposite rulings say legislators accused of harassment can and can’t intervene in cases State legislative staffers were fired after reporting allegations.
An unprecedented split between two Kentucky judges in the same courthouse is tangling a high-profile whistleblower case in which legislators are seeking to keep sexual harassment allegations against them secret.
Franklin County Circuit Court Judge Phillip Shepherd ruled Dec. 27 that former Kentucky House Speaker Jeff Hoover and two other state representatives can intervene in the case and reopen the deposition of the alleged victim, with whom the legislators have already entered a confidential settlement.
But in a separate and related Dec. 27 opinion, another Franklin County Circuit Court judge, Thomas Wingate, ruled the legislators can’t intervene at all. He also granted a protective order for the alleged victim because the legislators signed a settlement agreement with her on these allegations, he reasoned.
The decision came in two separate cases. In the first, Daisy Olivo, former Hoover spokeswoman, alleges she was demoted and red from her position with the Kentucky Legislative Research Commission (LRC) for reporting to several superiors the victim’s allegations against the legislators. In the second, another LRC employee, Brad Metcalf, alleges similar retaliatory termination for reporting the victim’s allegations. The victim’s allegations came to light with news reports of the legislators’ confidential settlement.
The split means the Kentucky Court of Appeals will likely be called on to decide whether politicians can enter whistleblower lawsuits to protect their reputation. Additionally, the Court of Appeals will hear a unique procedural tangle in which one judge has ordered the alleged victim to sit for her deposition while the other ordered she doesn’t have to show up.
“Everybody is in a state of absolute perplex,” Shane Sidebottom, an attorney who is representing Olivo and Metcalf, told Bloomberg Law Dec. 28. “This case is unfortunately becoming a bar exam question.”
Reps Protecting Rep
Shepherd ruled Hoover and Republican Reps. James DeCesare and Michael Meredith had an interest in protecting their reputation. Their reputations, Shepherd said, qualified as a “present substantial interest” in the whistleblower case, which allowed them to intervene under Kentucky law.
But Kentucky Whistleblower Act claims are between an employee and the employer—the lawsuits don’t include as parties any individual accused of breaking the law. That means the legislators can’t request entry to the case in their “individual capacities.”
However, Shepherd said, “this is not a typical whistleblower suit, and the issue of whether” the Legislative Research Commission, “as an entity, has the power to sue or be sued in the context of a Whistleblower Act claim is unsettled.” He ruled that the legislators could intervene in their “official capacities” due to legislators sitting on a 16-member panel that controls the commission.
The alleged victim will ask the Court of Appeals to block the deposition, her attorney, Gail Langendorf, with Busald Funk Zevely P.S.C. in Florence, Ky., told Bloomberg Law on Dec. 28. Sidebottom, who is with Ziegler and Schneider P.S.C. in Covington, Ky., said he would also be filing a similar request.
To get a Court of Appeals hearing, the alleged victim must show she would suffer great injustice and irreparable injury if her deposition was reopened. Langendorf thinks this situation clears that hurdle, as the legislators chose to settle with the alleged victim instead of disputing her claims in court.
“My concern is this judge’s order would lead to a chilling effect on people employed by the commonwealth bringing forward allegations,” she said. “There’s this poor girl who has sexual harassment claims who is being dragged through the abyss because she accurately reported,” she said.
‘What’s the Cutoff?’
Wingate ruled reopening the deposition would “create numerous side issues and essentially lead to a mini trial” on claims already settled. “This Court will not turn a straightforward claim of retaliation under the KWA into complex litigation creating new interests wholly unrelated.”
Sidebottom, an expert on Kentucky Whistleblower Act litigation, agreed with Wingate’s ruling and said that allowing legislators, or other intervenors, would “shoot holes” in one of the U.S.’s most worker-friendly whistleblower laws.
The law doesn’t require a worker’s underlying report of illegal activity to be true for the person to be protected. It just must be made in good faith. Thus, hashing out the victim’s allegations is irrelevant for his client’s claims, and allowing in parties with a reputation interest could have a chilling effect on public workers reporting illegal activity.
“I’m sure every wrongdoer would like the opportunity to enter a case and challenge the wrong they are alleged of doing, but that’s never happened before,” Sidebottom said. “I’m fearful that we’re creating special rules for people of privilege to allow people to intervene to protect their reputation. What’s the cutoff?”
The legislators’ attorney didn’t immediately respond to a request for comment.
The cases are: Metcalf v. Legislative Research Comm’n, No. 18-CI-245, motion to intervene denied 12/27/18 and Olivo v. Legislative Research Comm’n, No. 17-CI-1256, motion to intervene granted 12/27/18.
Last week, the Kentucky Supreme Court issued a very important decision for all employees in the State of Kentucky. The Supreme Court ruled that employers cannot require its employees to sign Arbitration agreements as a condition of being hired or maintaining their current jobs.
Ziegler & Schneider attorney, Shane Sidebottom, briefed the case and then successfully argued this very important issue before the Supreme Court.
On April 25, 2018, Governor Bevin signed House Bill 11 into law. House Bill 11 establishes Chapter 457 of the Kentucky Revised Statutes adopting portions of the Uniform Power of Attorney Act (2006). Effective July 14, 2018, these new statutory guidelines will replace the previous common law guidelines. The execution of a Power of Attorney will now require that it be signed in the presence of two (2) disinterested witnesses by the principal or in the principal’s conscious presence. Such signature of the principal should also be acknowledged by a notary public to be presumed genuine.
The Act provides a new landscape for Powers of Attorney in Kentucky. For instance, it provides for the specific circumstances in which a Power of Attorney would terminate, such as when: the principal dies; the principal become incapacitated (if not durable); a court appoints a fiduciary charged with the management of the principals property; the power of attorney is revoked; the terms of the power of attorney indicate termination; and when the purpose of the power of attorney is accomplished. The Act further excludes certain Power of Attorney documents from the purview of its statutes. One such exception is for medical decisions outlined in accordance with the Kentucky Living Will Directive Act. These documents shall be drafted in accordance with all previously established Kentucky Law.
This new Act will not affect existing Power of Attorneys that were properly executed prior to the effective date of the Act. However, as of July 14, 2018, changes will need to be made to new Powers of Attorney to ensure compliance with the Act. For questions concerning how the Act will impact your estate planning documents or for assistance executing updated estate planning documents, please contact our office.
As of July 1, 2018, KRS 403.270 will be amended, and Kentucky law will officially recognize that parents involved in a custody or divorce case will have the statutory right to petition the Court for equal parenting time for their children. While the practice of joint custody has been an unwritten rule in the state for the past few years by many judges, the revision to the custody statute makes it clear that courts are to default to an equal parenting time schedule for each parent, unless evidence is presented by a party in a proceeding that there are safety issues present in such parenting time arrangement.
The key change to the custody statute reads as follows:
“There shall be a presumption, rebuttable by a preponderance of evidence, that joint custody and equally shared parenting time is in the best interest of the child. If a deviation from equal parenting time is warranted, the court shall construct a parenting time schedule which maximizes the time each parent or de facto custodian has with the child and is consistent with ensuring the child’s welfare.”
A Family Court’s hands will not be bound to the new statutory language if a Court determines after an evidentiary hearing that it is in the “best interest” of the child that a deviation from equal parenting is justified. However, there are new statutory factors that the courts may consider in any such evidentiary hearing on parenting time that focus on the individual petitioning custodian. In determining what is in the best interest of a child in a custody hearing, the court will also hear any evidence on “the influence a parent or de facto custodian may have over the child’s wishes” as to who is their custodian, and “the motivation of the adults in participating in the custody proceedings.”
Kentucky’s custody statute was previously amended to apply equal shared parenting time to temporary custody order last year.