FRANKFORT, Ky. (WDRB) – A Franklin County judge will determine whether Attorney General Andy Beshear’s lawsuit against the Kentucky Labor Cabinet will move forward after the agency announced Friday that it found 1,074 teachers broke the law by staging “sick outs” during this year’s legislative session.

The two sides argued their points during a pretrial conference Monday before Franklin Circuit Judge Phillip Shepherd, who gave attorneys through Sept. 25 to file briefs on whether the case should proceed.

Steve Pitt, Gov. Matt Bevin’s general counsel who is representing the cabinet, argued that Beshear’s lawsuit should be considered moot since the agency’s inquiry into the sick outs that closed 10 school districts at least once this year has concluded.

The cabinet announced in a news release Friday that the inquiry found that 1,074 teachers had broken state law barring public employees from participating in work stoppages and that the agency would not pursue civil penalties of up to $1,000 per violation against them.

However, Labor Cabinet Secretary David Dickerson warned that would not be the case if sick outs, when enough teachers request sick days to trigger districtwide closures, occur in the future.

But Deputy Attorney General J. Michael Brown contended that there are still legal issues for the court to sort out, notably whether Dickerson has the authority to pursue such investigations. He said the Labor Cabinet does not employ any of the teachers in question and no school district has asked the agency to resolve any sort of labor issue with its employees.

“If the court were to find, as we believe, that the secretary of labor doesn’t have legal jurisdiction to do these things, then there’s no need to go any further,” Brown said. “Game over. That’s the end of that particular inquiry.”

Pitt argued that Dickerson was within his rights as head of the Labor Cabinet to investigate and pursue any potential violations of Kentucky labor laws.

State law allows Labor Cabinet secretaries to prosecute any legal violations under laws they’re tasked with administering, Pitt said.

“It’s not a sound argument, we think, to argue that the secretary of labor does not have the power that the statute gives him or her in situations like this,” Pitt said.

The cabinet launched its investigation in April following multiple school district closures during this year’s session as lawmakers considered bills that would legalize scholarship tax credits, alter the selection process for trustees on the Kentucky Teachers Retirement System Board and give superintendents of Jefferson County Public Schools authority to hire principals rather than school-based councils. JCPS, Kentucky’s largest school district, closed six times in the waning days of the session.

Shepherd voiced concern that teachers found in violation of state law did not have an opportunity to rebut those findings.

“To have the head of the agency make such a public accusation here that 1,000 people are law-violators seems to me to implicate some due process concerns,” he said from the bench.

Pitt said that would only be an issue if the teachers in question were cited and not given an opportunity to challenge those determinations or if the cabinet released the names of those teachers it believed broke state law.

“That didn’t happen,” he said. “There have been no names posted, and even in that event, that’s not a citation. It’s not a fine, and those persons have the right to be interviewed by the media and say, ‘I didn’t engage in a work stoppage.’ They have a First Amendment right to protect themselves if their names were published, which hasn’t happened.”

In setting the briefing schedule, Shepherd asked defendants recognize Dickerson’s position that teachers would not be fined as the result of the cabinet’s investigation as the Bevin administration’s official stance on that point. Pitt said his side would be “happy to do that.”

That was an important point for Brown, who said the press release in which Dickerson said he would not pursue civil penalties against teachers had “no weight” legally.

“That could change before I get out the door,” Brown said of Dickerson’s statement that no action would be taken against teachers.

Pitt’s team has until Sept. 3 to file a motion to dismiss the lawsuit because the issue is moot. The attorney general’s office will then have until Sept. 18 to respond, with a response from Pitt due Sept. 25, according to the schedule set by Shepherd Monday.

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