Professional Documents
Culture Documents
2022 SC 0426 Oa
2022 SC 0426 Oa
review of the entirety of the three-day hearing before the Special Commissioner,
we find removal warranted and thus remove Flynn as Pulaski Circuit Court
Joseph “JS” Flynn was appointed Pulaski Circuit Court Clerk in 2016
and elected to that office in 2018. One circuit clerk is elected by the citizens in
each Kentucky county, and his or her position involves the important
court fines and costs for the Court of Justice. In many counties, this also
entails hiring deputy clerks to assist with these duties. Tabitha Burnett was
hired as a full-time deputy clerk in the Pulaski Circuit Court Clerk’s office in
On March 23, 2022, Burnett filed a complaint against Flynn with the
acknowledges he did not report this relationship and the resulting conflict of
interest as required. Flynn also does not dispute that he physically poked
some of his employees in the office on work time to tease or scare them. He
further acknowledges yelling and cursing at office staff in front of the public in
March of 2022.
There were other allegations brought against Flynn both by Burnett and
a co-worker and deputy clerk, Ashley Haste. Other than the admitted conduct
outlined above, Burnett also alleged that two to three years prior, she went to
lunch with Flynn and another co-worker Hanna Garner. Burnett further
alleged that while riding back from the lunch in Garner’s car, Flynn pulled
Burnett from the front seat into the back seat of the vehicle, forcefully kissed
her on the face and neck, pulled up her shirt and kissed her breast, and
exposed himself, all while Garner and Burnett screamed for him to stop. Flynn
denies the incident occurred, pointing out that he has two fourteen-inch
Burnett further alleged in her complaint to AOC that for years, Flynn
would rub her back, hair, and legs in the office. Burnett also alleged that in
one incident, Flynn put his hand up her dress in front of her co-worker Haste
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support specialist for the Pulaski District Court for fourteen years. Flynn
Finally, Burnett also alleged that the day before she filed her complaint,
Flynn pushed her out of an office, slammed the door in her face, slammed the
door in Haste’s face, and then proceeded to curse and yell in Haste’s face,
because she felt threatened and was verbally and sexually harassed by Flynn.
On March 23, 2022, Haste also filed a complaint against Flynn with
Flynn screaming and cursing at Haste in front of office staff and the public.
Flynn acknowledges that he yelled and cursed at Haste and that such conduct
was unprofessional. Flynn asserts his conduct was in reaction to Burnett and
was always in a meeting, and Haste accidentally bumping him in the face with
the door.
investigated the complaints. On June 24, 2022, the AOC Director provided
both the Chief Justice and the Circuit Court Clerks Conduct Commission (the
Flynn had engaged in unlawful workplace harassment and retaliation and had
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created a hostile work environment. On September 19, 2022, the Commission
referred the allegations against Flynn to this Court for further proceedings. 1
to hold an evidentiary hearing, develop a full factual record, and make findings
of fact and recommendations. Upon our invitation and request, the Attorney
beginning on May 10, 2023. The Special Commissioner assigned the burden of
proof to the Special Advocate to show by clear and convincing evidence that
Flynn’s removal from office is warranted. Both the Special Advocate and Flynn
the evidentiary hearing, the record and proceedings of which we have reviewed
in full.
measures for circuit court clerks to the Chief Justice. Administrative Procedures of the
Court of Justice, Part XVI, § 6. However, the Commission does not have authority to
impose such actions or measures itself.
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physically assaulting Burnett in the vehicle incident, reaching under her dress
in the workplace, otherwise flirting with and touching her in the office against
her wishes, and making sexual comments to her. The Special Commissioner
found that Flynn also created a hostile work environment by pinching other
female employees on the back below their bra while making statements such as
“let daddy feel your bacon” and asking them to call him “daddy.” Flynn
to “bacon.”
quid pro quo harassment because although Flynn and Burnett had a brief
she told him she was uninterested in a relationship. More particularly, the
Special Commissioner found that Flynn became angry with Burnett, gave her
the “cold shoulder,” assigned supervision of her to a chief deputy clerk to avoid
contact with her, and referred to her in numerous derogatory terms in front of
The Special Commissioner also found that Flynn violated his duty to act
with courtesy and respect when he screamed at Haste in front of office staff
and the public and more generally by his periodic outbursts of anger when
Flynn violated policy when he failed to report the conflict of interest that arose
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Flynn and the Special Advocate have now filed briefs with this Court.
Following careful review of the briefs, the entirety of the three-day evidentiary
Flynn’s removal from the office of the Pulaski Circuit Court Clerk is warranted.
ANALYSIS
clerk with this Court: “The clerks of the Circuit Court shall be removable from
office by the Supreme Court upon good cause shown.” Ky. Const. § 114(3).
original action in which we serve as the ultimate finder of fact and adjudicator.
See In re Overstreet, 851 S.W.2d 458, 459 (Ky. 1993). Our practice is to
for resolution of an original action for removal of a circuit court clerk. See id.
who should bear the burden of proof. Flynn asserted the burden was on the
Special Advocate to show good cause for his removal, while the Special
Advocate asserted the burden was on Flynn to show good cause why he should
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not be removed. Commissioner Logue concluded the Special Advocate bears
the burden of proof to show good cause for Flynn’s removal. We agree.
circuit court clerk for “good cause shown.” Though this phrasing is passive
and thus does not specify who must show good cause, the circuit court clerk
would of course have no interest in showing good cause for his removal.
Rather, the only logical reading of the provision is that the party seeking
removal, e.g., the Special Advocate, bears the burden of showing good cause for
the clerk’s removal. Moreover, this allocation of the burden of proof to the
such proceedings. Requiring the Special Advocate to show good cause is also
consistent with the rules applicable to civil actions more generally. See CR 2
43.01(2) (“The burden of proof in the whole action lies on the party who would
on the Special Advocate to show good cause for removal of the clerk. That is,
the Special Advocate must show “a legal cause which affects the ability and
fitness” of the clerk “to perform the duties of the office.” Nicholson v. Jud. Ret.
& Removal Comm’n, 562 S.W.2d 306, 308 (Ky. 1978). The circuit court clerk of
made. See Overstreet, 851 S.W.2d at 460 (finding removal of circuit court
Flynn argued that good cause for removal must be shown by clear and
bears any burden at all). Commissioner Logue concluded the Special Advocate
must show good cause for removal by clear and convincing evidence, and again
we agree.
In such cases, our Supreme Court Rules specifically dictate that “proof shall be
judge’s rights.” Gentry v. Jud. Conduct Comm’n, 612 S.W.3d 832, 841 (Ky.
for removal of a circuit court clerk. Circuit court clerks, like judges, are elected
by the people to serve in public office. Actions for removal of such officials are
higher evidentiary standard is warranted, and thus the Special Advocate must
show good cause for removal of a circuit court clerk by clear and convincing
Cabinet for Health & Fam. Servs. V. T.N.H., 302 S.W.3d 658, 663 (Ky. 2010)).
In their briefing to this Court, the parties also dispute what deference we
review, while the Special Advocate contends we should defer to the factual
weight.”
in this Court as an original action. Ky. Const. § 114 (“The clerks of the Circuit
Court shall be removable from office by the Supreme Court upon good cause
finder of fact and adjudicator in determining whether good cause is shown for
However, because we serve as the final finder of fact and adjudicator (and not
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law, or recommendations of the Special Commissioner. In other words, our
bears the burden to show by clear and convincing evidence that good cause
exists for removal of the clerk. The circuit court clerk must be afforded an
II. Flynn’s Due Process Rights Were Not Violated In The Course Of
These Proceedings.
a circuit court clerk, we turn now to Flynn’s contention that he was denied due
process during the proceedings before the Special Commissioner. We are not
First, Flynn contends an order prohibiting him from speaking with AOC
employees denied him due process. However, that order was lifted and did not
prevent Flynn from investigating the claims against him. Second, Flynn
a court may adopt, modify, or reject in whole or in part, or remand with further
instruction. See CR 53.05(2). A court may also receive further evidence on a matter
following a master commissioner’s report. Id. “In sum, the trial court has the
broadest possible discretion with respect to the use it makes of reports of . . .
commissioners[,]” including “to re-evaluate the evidence and reach a different
conclusion than the commissioner.” Eiland v. Ferrell, 937 S.W.2d 713, 716 (Ky. 1997).
So too with our consideration of a Special Commissioner’s findings of fact, conclusions
of law, and recommendations in an original action to consider removal of a circuit
court clerk.
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complains that AOC employees were represented by an attorney. Again, the
mere fact that AOC employees were represented by counsel did not in any way
prohibiting him from contacting AOC employees unless they agreed in writing
the record includes an order that allowed AOC employees to state their wish
an order been entered, it would not have been inappropriate given Flynn’s
conduct outside the Pulaski County Courthouse during the course of these
proceedings.
serve in his absence violated his due process rights. More particularly, Flynn
Flynn and his counsel to employees of the Pulaski Circuit Court Clerk’s office—
many of whom were potential witnesses in the case. According to Flynn, the
Special Clerk told the employees in large meetings that they should not speak
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with Flynn’s counsel because his attorneys were not “on their side,” that Flynn
was enjoying a huge vacation and living the dream by being on paid
administrative leave, and that Flynn was unethical. Allegedly, the Special
Flynn’s counsel.
this conduct rises to the level of a due process violation. Indeed, Flynn moved
raised may affect the weight and credibility of the witness testimony but do not
Pulaski Circuit Court Clerk. After careful consideration, and with due regard
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clerks. Supreme Court Order 2014-12 (“Circuit Court Clerk Code”). This Code
requires that circuit court clerks comply with, among other things, the
Workplace Policies set forth in Part III of the Court of Justice’s Administrative
all of the circumstances including, but not limited to: (1) the
frequency of the alleged harassing conduct; (2) the severity of the
alleged harassing conduct; (3) whether the alleged harassing
conduct was physically threatening or humiliating; and (4) whether
the alleged harassing conduct has the purpose or effect of
unreasonably interfering with an employee’s work performance or
creating an intimidating, hostile, or offensive environment.
Id. § 3.03(2)(b).
Workplace Policies and the Circuit Court Clerk Code, and thus constitutes “a
legal cause which affects the ability and fitness” of the clerk “to perform the
duties of the office.” Nicholson, 562 S.W.2d at 308. That is, creation of a
hostile work environment is “good cause” for removal of circuit court clerk. See
id. Here, we find by clear and convincing evidence that Flynn created a hostile
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2) placing his hand up Burnett’s dress in the workplace, 3) engaging in
co-workers, asking them to call him “daddy,” and referring to parts of their
cursing at his employees in front of other staff and the public and by referring
First, we find the testimony outlining the events that occurred during the
that Flynn pulled her from the front seat to the back seat, kissed her, lifted her
shirt, kissed her chest, and exposed himself, all against her will. While Flynn
testified the events alleged by Burnett were physically impossible given the rods
in his back, Burnett explained she did not physically resist Flynn pulling her
Burnett’s testimony that Flynn pulled Burnett into the back seat, that both
women had to scream before Flynn stopped, and that Flynn apologized when
he exited the vehicle. In addition, two other employees testified Burnett told
them about the incident immediately after it occurred, while a third testified
she told him about it later. And while Burnett waited a significant amount of
time to report the incident, she explained she delayed for fear of losing her job
because she had seen Flynn fire another employee who had filed a complaint
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credibility of Burnett regarding the particular allegations in this case. As such,
and in considering the entirety of the record, we find by clear and convincing
his removal, given its physical, threatening, offensive, intimidating, and severe
was Flynn’s placing of his hand up Burnett’s dress in the workplace, which
was not only reported in testimony by Burnett but also by two additional
Burnett. Given the frequency and severity of the sexual and physical assaults
him as “daddy,” made crude sexual comments regarding women’s body parts
and his own sex life, and referred to women’s body parts as “bacon.” Moreover,
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surrounded by female employees wearing fishnet stockings, knee-high leather
this basis alone we would find the admittedly severe sanction of Flynn’s
We also find by clear and convincing evidence that Flynn engaged in quid
defined as
Workplace Policies § 3.03(2)(c). Here, the testimony established that Flynn and
that after Burnett ended the relationship, Flynn refused to supervise her and
instead assigned a Chief Deputy Clerk to perform that role. In other words,
The clear and convincing evidence further established that Flynn also
employment. Burnett testified Flynn refused to speak to her, was angry with
her, gave her the “cold shoulder,” and referred to her by numerous derogatory
terms, including “ho,” “badge bunny,” and someone needing to go to the health
department for STD 5 treatment. At least one other employee also testified to
overhearing Flynn call Burnett a “bitch.” As such, we also conclude that Flynn
The Circuit Court Clerk Code also requires clerks to perform their duties
“[w]ith courtesy and respect for the public, litigants, lawyers, subordinate
employees, and all others with whom the clerk interacts as a part of his or her
official duties[.]” Circuit Court Clerk Code § 4(2)(a). Failure to do so may result
Flynn violated the mandate to perform his duties with courtesy and
respect when he physically pursued Haste while yelling and cursing at her, all
in front of his staff and members of the public. Flynn acknowledges the
his obligation to perform his duties with courtesy and respect. His failure to do
so reflected poorly not only on himself, but also unfortunately on the judiciary
he was elected to serve. While perhaps insufficient alone to warrant the severe
issue in this case it nonetheless further supports our conclusion that removal
is required.
dress in the office, and engaging in unwanted touching of and flirtation with
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physical touching, asking them to call him “daddy,” and referring to parts of
their bodies as “bacon.” We further find that Flynn also engaged in quid pro
numerous derogatory ways after she ended their relationship. Finally, we also
conclude Flynn violated his obligation to perform his duties with courtesy and
respect when he chased, yelled, and cursed at Haste in front of his staff and
warranted here. As such, we hereby remove Flynn from the office of the
Pulaski Circuit Court Clerk for the remainder of his term. The Office of the
Pulaski Circuit Court Clerk is declared vacant. Flynn must pay the costs of
these proceedings.
VanMeter, C.J.; Bisig, Conley, Keller, Nickell, and Thompson, JJ., sitting.
VanMeter, C.J.; Bisig, Conley, Keller, and Nickell, JJ., concur. Thompson, J.,
______________________________________
CHIEF JUSTICE VANMETER
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COUNSEL FOR SPECIAL ADVOCATE:
Russell M. Coleman
Attorney General of Kentucky
Aaron J. Silletto
Assistant Attorney General
Marc Manley
Assistant Attorney General
Joseph E. Lambert
Lambert & Lambert, PLLC
Jason M. Nemes
Commonwealth Counsel Group, PLLC
SPECIAL COMMISSIONER:
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