15-CI-00551

02/16/2016

Vincent Riggs, Fayette Circuit Clerk

COMMONWEALTH OF KENTUCKY
FAYETTE CIRCUIT COURT
3rd DIVISION
CIVIL ACTION NO. 15-CI-551
-Electronically FiledPAUL KEARNEY, M.D.

V.

PLAINTIFF

REPLY IN SUPPORT OF RENEWED MOTION TO DISMISS

UNIVERSITY OF KENTUCKY

DEFENDANT
** * * *

The heart of this motion is succinct. As Plaintiff describes on page 17 of his Response,

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the Practice Plan Committee for the College of Medicine existed only on paper; the fact that the
Committee was not functioning for over four years was not publically known. Thus, the
question before the Court is whether the absence of a Committee meeting is publicly known or
available information. In spite of the attempts in Plaintiffs Response to obfuscate the issues,
Plaintiffs Response underscores the merits of this motion: Dr. Kearney never complained about
any secretive information. At best, when he spoke at the April 15, 2014 College of Medicine
Faculty Council meeting, he complained about information that was publically known and
available.
To begin with, when Plaintiff and his colleagues began inquiring into the composition of
the Practice Plan Committee several open records requests were submitted. Through responses

comprised of the faculty elected representatives to the KMSF Board, the Practice Plan
Committee had not met between 2009 and 2013, that no agendas or minutes existed of any
Practice Plan Committee in that time frame. (Jones depo., 4/8/15 Vol. I at p. 43-48; Swanson

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by the University, Dr. Davy Jones learned that: the Colleges Practice Plan Committee was

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Depo., at p. 26). In other words, the Committees existence and the fact it had not met was
indeed information publicly available under the Open Records Act and Plaintiff did not blow
the whistle on the absence of Practice Plan Committee meetings.
Second, Dr. Swanson, Chair of the Colleges Faculty Council, testified the main focus
of the April 15 meeting was on AR 3.14. As Dr. Swanson explained, the focus of the April 15
Faculty Council meeting was the belief that UK AR 3.14 had been violated because the practice
Plan Committee had not met since 2009. (Swanson Depo. at p. 55). Importantly, Dr. Swanson
does not recall during that April 15 meeting Dr. Kearney ever requested any audit of KMSF or
that lawyers do an independent investigation into [KMSF]. (Swanson Depo., at 45).

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So in addition to the detail provided in the minutes, what did Dr. Kearney speak to at the
April 15 Faculty Council meeting? As Plaintiffs colleague and witness Dr. Jones describes:
Q
Okay. Today as you -- well, forget it, that's kind of stupid. But anyhow,
today, has this Practice Plan Committee met yet?
A
Yeah. The -- once -- once we knew who was on it, and now it's finally
announced who is on it, they've been told they're on it, the Faculty Council again
tried to achieve compliance by making some suggestions to the dean on how to
keep compliance. And Dr. Kearney was the one spear-heading this at the Faculty
Council, held an informative discussion, that we would suggest to the dean that it
meet quarterly, that it make minutes, you know, and those minutes be made
generally available. And through Hollie Swanson, the Faculty Council agreed to
Dr. Kearney's suggestions, and Hollie Swanson submitted that to the dean and the
Committee started meeting.
(D. Jones Depo., Vol II 4/21/15, at p. 87-88).
Third, to the extent Plaintiff argues that he was complaining about the cost allocation to

Plan Members must approve those changes. See Exhibit 4 at Section III.A to Defendants
Renewed Motion to Dismiss.

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the members of the KMSF Plan, any of those changes are clearly publically known since the

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I.

02/16/2016

DISCLOSING
PUBLICLY
WHISTLEBLOWING.

Vincent Riggs, Fayette Circuit Clerk

KNOWN

INFORMATION

IS

NOT

Plaintiff agrees that if the Practice Plan Committees failure to meet is publicly known or
available information, then his claim must be dismissed. Plaintiffs Response, at p. 16; Davidson
v. Commonwealth, Dept. of Military Affairs, 152 S.W.3d 247, 255 (Ky.App. 2004) (applying
Whistleblower Act to protect employees who possess knowledge of wrongdoing that is
concealed or not publicly known, and who step forward to help uncover and disclose that
information).
To defeat this Motion, Plaintiff must demonstrate that he blew the whistle with
information that was not already known of publically available such as secretive agency

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procedures. Id., at 255. The fact that the Practice Plan Committee was comprised of the
elected KMSF Board members was publically known by virtue of its inclusion in the College
Addendum.

The fact that the Committee did not meet between 2009 and 2013 was also

publically known simply evidenced by virtue of the fact that Dr. Jones issued Open Records
Request to the University which confirmed that no agendas or minutes of the Committee existed
for that time period.
Plaintiffs Complaint and attached items do not establish that he raised any information
that was not publically known nor has he brought to light any secretive agency procedures.
The Practice Plan mandated by the University was established by University Regulation and is
available online. The Colleges Addendum and the Departments Practice Plan were provided to

request to the University. See, e.g., Exhibit 6 to Defendants Renewed Motion to Dismiss.

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Plaintiff and his colleagues and are otherwise publically available via a simple Open Records

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II.

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A PRACTICE PLAN COMMITTEE NOT MEETING IS NOT WITHIN THE

SCOPE OF THE WHISTLEBLOWER ACT.
Plaintiffs Response fails to address the Universitys arguments that Plaintiffs purported

disclosures does not allege any violation of law, rule or regulation nor raises an issue about
mismanagement, waste, fraud or abuse of authority.

UK AR 3:14 provides that any

communication about changes to the Colleges Practice Plan are to be brought before the faculty
members by the Chair of the Practice Plan Committee and Plaintiff makes no argument that such
changes were not communicated. The Department of Surgerys Plan provides that changes to
Schedules A and B of the Plan concerning cost allocation and calculation will be subject to
faculty vote. See Renewed Motion to Dismiss at Exhibit 4 at 1-2. Again, Plaintiff can make no

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allegation complaining of this lack of input since such presentation was made. Accordingly, he
made no report of a proper subject matter that could violate KRS 61.102.
III.

COMPLAINING IN A FACULTY COUNCIL MEETING IS NOT A REPORT TO AN

APPROPRIATE BODY OR AUTHORITY.

Plaintiff also did not respond to the Universitys argument that he failed to report to an
appropriate official or body.

The Universitys General Counsel is not included in the

Whistleblower Acts enumerated list at KRS 61.102. Nor was his attendance at the meeting an
other appropriate authority. Rather, Mr. Thros attendance at a Faculty Council meeting to
review the scope of UK AR 3.14 is similar to Supreme Courts recent holding in Pennyrile Allied
Community Services, Inc. v. Rogers, 459 S.W.3d 339 (Ky. 2015). There, the employee made no

alleged wrong behavior and was merely expressing to her boss her displeasure about a practice.
She did not intend to report, divulge, or disclose anything by discussing this practice with the
offending boss in front of her co-workers. Id. An otherwise at-will employee cannot gain
whistleblower status, and the protections that come with that status, by simply complaining to
4

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effort to bring her claim to the attention of anyone with the power to remedy or report the

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her boss about what she perceives as his misconduct. Id. Similarly, Dr. Kearney does not
become a whistleblower because the Universitys general counsel was present in a faculty
council meeting when Dr. Kearney complained about the Practice Plan appointment process or
the Committees failure to meet.
Based upon those reasons, this action should be dismissed.
STURGILL, TURNER, BARKER & MOLONEY, PLLC
BY:/s/ Bryan H. Beauman
Stephen L. Barker
Bryan H. Beauman
Joshua M. Salsburey
333 W. Vine Street, Suite 1500
Lexington, KY 40507
Telephone: (859) 255-8581
Facsimile: (859) 231-0851
ATTORNEYS FOR DEFENDANT

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CERTIFICATE OF SERVICE
I hereby certify that the foregoing document was electronically filed with the Clerk of
this Court using the KY eCourts eFiling system. A true copy of the foregoing was served by
U.S. Mail to Bernard Pafunda, 175 E. Main Street, Suite 600, Lexington, KY 40507.
This 16th day of February, 2016.

/s/ Bryan H. Beauman

ATTORNEY FOR DEFENDANT

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15-CI-00551

02/16/2016

Vincent Riggs, Fayette Circuit Clerk