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U.S. District Judge returns ‘sickout’ lawsuit filed by Beshear, Jefferson Co. teachers to circuit court

By Tom Latek
Kentucky Today

A federal judge has ordered a lawsuit challenging the use of Kentucky labor law to obtain names of teachers who were involved in “sickouts” back to state court.

U.S. District Judge Danny Reeves on Thursday returned the case to Franklin Circuit Court.

The lawsuit dealt with the subpoena of teacher attendance records during days when teachers called in sick to stage protests in Frankfort while the 2019 General Assembly was considering pension reform legislation.

Teachers protest in Frankfort over the pension plan. (Photo by Tom Latek, Kentucky Today)

The lawsuit was originally filed at Franklin Circuit Court by Attorney General Andy Beshear and the Jefferson County Teachers Association, after the state Labor Cabinet subpoenaed the records of around 10 school districts which had to shut down for at least one day due to the teacher sick-out. Jefferson County had to cancel classes for six days, due to a lack of available teachers and substitutes.

Beshear sent a letter to Gov. Matt Bevin and then-acting Labor Secretary David Dickerson on April 16, telling them the subpoenas are unlawful, and gave them 10 days to rescind the subpoenas or face possible legal action.

Dickerson responded in a letter saying the Labor Cabinet is fulfilling its statutory duty and acting in the public interest of students, parents, employers, and the taxpayers of Kentucky by investigating whether a public-sector strike or work stoppage has occurred in violation of state law.

That prompted the lawsuit, which took issue with what Beshear termed the administration’s unlawful use of a state labor law to seek records and names of teachers and possibly fine them up to $1,000 a day for allegedly using sick days to attend rallies in support of public education. He argued that the labor secretary does not have the authority to subpoena the information or penalize teachers.

The Labor Cabinet filed to move the lawsuit to federal court, since Beshear publicly stated and also put in a letter to the Cabinet that it was a First Amendment free speech issue.

In May, U.S. District Judge Danny Reeves denied a motion by Beshear for a temporary restraining order to halt the subpoenas pending a full ruling on the issue, which happened on Thursday when he returned the case to Franklin Circuit Court.

In his seven-page ruling, Reeves noted, “The defendant [the Labor Cabinet] also cites various parts of the Complaint in which the plaintiffs assert that the defendant violated their constitutional rights of free speech and assembly. But as articulated elsewhere in the Complaint, these rights are also recognized under the Kentucky Constitution.”

However, Reeves also said, “Because the plaintiffs [Beshear and the JCTA] provided an exhibit in which Plaintiff Beshear advised Defendant Dickerson that his actions violated teachers’ rights under the First Amendment to the United States Constitution, the Court will not hold that removal was objectively unreasonable. Therefore, the plaintiffs’ request for attorneys’ fees, costs, and expenses associated with removal will be denied.”

Beshear reacted to the ruling saying, “Matt Bevin’s effort to remove this case to federal court was a stall tactic intended to further intimidate our Kentucky teachers,” he said. “I will continue to fight in state court to ensure no teacher is bullied or fined by this administration.”

Bevin administration spokesman Elizabeth Kuhn issued the following statement:

“The Court’s ruling today simply moves the case to state court and says absolutely nothing about the merits of the case. In the only ruling thus far on the merits, the Attorney General lost his motion, and the Judge allowed the Labor Cabinet’s legal investigation to move forward.

“We remain confident that the Attorney General’s political lawsuit and bogus legal theory—that public employees have a constitutional right to shut down public schools and force parents to scramble for childcare—will not succeed.”

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