Terri Bradshaw v. Capital Community economic/industrial Development Authority

RENDERED: DECEMBER 5, 2025; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2024-CA-1259-MR

TERRI BRADSHAW APPELLANT

APPEAL FROM FRANKLIN CIRCUIT COURT

v. HONORABLE PHILLIP J. SHEPHERD, JUDGE

ACTION NO. 24-CI-00151

CAPITAL COMMUNITY ECONOMIC/

INDUSTRIAL DEVELOPMENT

AUTHORITY d/b/a KENTUCKY CAPITAL

DEVELOPMENT CORPORATION APPELLEE

OPINION

AFFIRMING

** ** ** ** **

BEFORE: EASTON, A. JONES, AND LAMBERT, JUDGES.

JONES, A., JUDGE: Terri Bradshaw appeals the Franklin Circuit Court’s

summary dismissal of claims she asserted against the above-captioned appellee

(“KCDC”), her former employer, for breach of contract and alleged violations of

Kentucky’s Open Meetings Act and Whistleblower Act. Each of her claims are

discussed in depth below. Upon review, we affirm.

1. Breach of contract for failing to hire an executive assistant and offering an

insufficient amount to compensate for vacation and comp time

a. Background

While the record in this matter is relatively small, the nature of

Bradshaw’s claims, how they were resolved below, and her appellate arguments

relative to them are complex and require a thorough understanding of this case’s

procedural history. Bradshaw asserted four ostensible “breach of contract” claims

against KCDC, but the first three of them (discussed here) were separate aspects of

just one overarching claim. The relevant sections of her February 14, 2024

complaint were as follows:

9. On January 16, 2019, [Bradshaw] and KCDC signed

an employment contract wherein [Bradshaw] would

serve as KCDC’s President and Chief Executive Officer

for five (5) years starting on January 15, 2019[,] until

January 15, 2024. Exhibit 1 – Contract.

10. [Bradshaw] was to be paid $90,000.00 per year with

the potential to “receive annual raises as determined by

the board in accordance with performance evaluations, to

be done annually.”

11. [Bradshaw’s] salary was raised to $100,000.00 in

2020. No additional raises extended during the Contract

term.

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12. [Bradshaw] was entitled to the same fringe benefits,

“including holidays, vacations, and sick leave, as regular

full-time employees of Franklin County.”

13. Additionally, [Bradshaw] was to be supplied with

“one (1) full-time executive assistant” at KCDC’s

expense.

...

COUNT I – BREACH OF CONTRACT

(“EXECUTIVE ASSISTANT”)

...

76. Section 7 of the Contract required KCDC to supply

[Bradshaw] with a full-time staff assistant at KCDC’s

cost.

77. KCDC breached Section 7 by failing and refusing to

supply a full-time assistant.

78. Due to KCDC’s breach, [Bradshaw] was required to

work significant overtime to satisfy her duties under

Section 6 of the Contract.

79. Specifically, during the five-year term, [Bradshaw]

worked 3143.5 hours over and above her standard work

hours that KCDC now claims she is not entitled under the

Contract.

80. Therefore, as a direct and proximate result of

KCDC’s breach, [Bradshaw] has been damaged in the

amount of $161,204.97 plus costs, pre-judgment interest,

and post-judgment interest from the date of Judgment

until satisfied in full.

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COUNT II – BREACH OF CONTRACT

(“VACATION TIME”)

81. [Bradshaw] reaffirms and reiterates the allegations

contained in numerical paragraphs 1 through 80 above,

the same as if set forth verbatim herein.

82. Per Section 5 of the Contract, [Bradshaw] is entitled

to be paid for accumulated vacation time upon

employment completion.

83. [Bradshaw]’s claim of accumulated vacation time

totaled 1,189.5 hours.

84. KCDC claims [Bradshaw] is only entitled to 277.5

hours, thereby breaching the Contract.

85. Therefore, as a direct and proximate result of

KCDC’s breach, [Bradshaw] has been damaged in the

amount of $60,997.56 plus costs, pre-judgment interest,

and post-judgment interest from the date of Judgment

until satisfied in full.

COUNT III – BREACH OF CONTRACT

(“COMP TIME”)

86. [Bradshaw] reaffirms and reiterates the allegations

contained in numerical paragraphs 1 through 85 above,

the same as if set forth verbatim herein.

87. Per Section 5 of the Contract, [Bradshaw] is entitled

to be paid for accumulated vacation time upon

employment completion.

88. [Bradshaw’s] claim of accumulated comp time

totaled 3,143.5.

89. KCDC claims [Bradshaw] is only entitled to 50

hours, thereby breaching the Contract.

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90. Therefore, as a direct and proximate result of

KCDC’s breach, [Bradshaw] has been damaged in the

amount of $161,204.97 plus costs, pre-judgment interest,

and post-judgment interest from the date of Judgment

until satisfied in full.

In summary, Bradshaw asserted she needed to work 3,143.5 hours in

excess of her regular salaried hours during her five-year contract because KCDC

failed to hire an executive assistant for her; and that those excessive hours entitled

her, in turn, to: (1) the cash equivalent of 1,189.5 hours of accumulated vacation

time ($60,997.56);1 and (2) the cash equivalent of 3,143.5 hours of accumulated

comp time ($161,204.97). She further alleged KCDC was in breach of the five-

year contract because it claimed, to the contrary, that she was only entitled to the

cash equivalent of 277.5 hours of accumulated vacation time and the cash

equivalent of 50 hours of accumulated comp time.

On March 7, 2024, rather than answering Bradshaw’s complaint,

KCDC moved to dismiss pursuant to CR2 12.02. In its motion, KCDC

acknowledged its position was indeed that Bradshaw was only entitled to the cash

equivalent of 277.5 hours of accumulated vacation time and the cash equivalent of

50 hours of accumulated comp time. KCDC also asserted that on February 20,

2024, at Bradshaw’s direction, it had also issued a check to the Franklin County

1

It is undisputed that Bradshaw’s hourly rate of pay for vacation and comp hours was $51.28.

2

Kentucky Rules of Civil Procedure.

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Treasurer (to be deposited into Bradshaw’s deferred compensation account) for

what KCDC had calculated was the cash equivalent of those hours.

Further, KCDC contended that even if the facts of Bradshaw’s

complaint were taken as true, Bradshaw had failed to state legally cognizable

claims for any amount beyond what it had paid the Franklin County Treasurer.

First, “Section 7 of the Contract” did not simply require “KCDC to supply

[Bradshaw] with a full-time staff assistant at KCDC’s cost,” as Bradshaw had

alleged in Paragraph 76 of her complaint. The full text of that provision, as set

forth in Bradshaw’s employment contract (which Bradshaw had attached to her

complaint as an exhibit) provided:

7. Office and Staff. Employee shall be supplied a

furnished office and one (1) Full-Time Equal Executive

Assistant at the cost of the Employer. Employee shall

recommend to the Employer the name of such Executive

Assistant and terms and conditions of employment;

however, the said Executive Assistant and the terms and

conditions of such employment shall be approved and

accepted only by action of the Employer.

(Emphasis added.) As KCDC noted, Bradshaw’s complaint did not allege

Bradshaw had made any such recommendation.

Second, KCDC argued Bradshaw’s contract did not entitle her to

more than the cash equivalent of 277.5 hours of accumulated vacation time and the

cash equivalent of 50 hours of accumulated comp time, irrespective of whether she

was provided an executive assistant. As Bradshaw acknowledged in Paragraph 12

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of her complaint, she was “entitled to the same fringe benefits, ‘including holidays,

vacations, and sick leave, as regular full-time employees of Franklin County.’”3 In

turn, the personnel policy ordinances governing holidays, vacations, and sick leave

of regular, salaried, “exempt,” “policy-making,” full-time, non-public-safety

employees of Franklin County (like Bradshaw) specified that such employees were

allowed – absent “recommendation by the department head and approval of the

County Judge/Executive” – to only accrue 50 hours of comp time in one fiscal

year.4 As KCDC noted, Bradshaw’s complaint did not allege Bradshaw had

secured a recommendation by the department head and approval of the County

Judge/Executive to exempt her from that rule.

Those ordinances also specified that employees with 60 to 119 months

of service (and Bradshaw’s 5-year contract equated to 60 months of service) were

3

Specifically, her employment contract provided:

5. Fringe Benefits. Employee shall receive the same fringe benefits, including

holidays, vacations and sick leave, as regular full-time employees of Franklin

County; shall be included in the Kentucky Association of Counties (KACo) group

health, dental and life insurance plans; shall be included under the KACo

Workers’ Compensation and Unemployment Insurance coverage; shall participate

in the County’s CERS retirement plan; and shall be eligible for membership in

any Credit Union offered to County employees and shall be eligible for all other

County benefits, all on the same terms and conditions as regular full-time County

employees.

4

See Franklin Cnty. Ord. § 30.051(B)(1), available at

https://codelibrary.amlegal.com/codes/franklincoky/latest/franklinco_ky/0-0-0-550#JD_30.051

(last visited Oct. 28, 2025).

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only entitled to carry forward a maximum of 277.5 hours of annual leave (e.g.,

“vacation time”) from one calendar year to the next.5 Accordingly, the face of

Bradshaw’s complaint demonstrated Bradshaw was, at most, entitled to be

compensated for 50 hours of comp time and 277.5 hours of annual leave; and that

KCDC therefore could not be in breach of contract for claiming Bradshaw was

only entitled to be compensated for those amounts of hours.

In her written response to KCDC’s motion, Bradshaw argued

Kentucky’s “notice pleading” standard excused her from alleging or otherwise

indicating in her complaint that she had satisfied any condition precedent relevant

to her breach of contract actions (i.e., that she had either recommended the name of

an executive assistant for KCDC to hire for her, or secured a recommendation by

the department head and approval of the County Judge/Executive to exempt her

from the 50-hour cap on her comp time). She also argued it would be

“inappropriate” for the circuit court to take judicial notice of the ordinances KCDC

had cited in (and attached as exhibits to) its motion to dismiss.6 However, during

oral arguments, Bradshaw’s counsel acknowledged that the Franklin ordinances

5

Franklin Cnty. Ord. § 30.077(B).

6

Bradshaw has not reasserted this argument on appeal. Moreover, ordinances are subject to

judicial notice. See, e.g., Polley v. Allen, 132 S.W.3d 223, 226 (Ky. App. 2004) (“A court may

properly take judicial notice of public records and government documents, including public

records and government documents available from reliable sources on the internet.”).

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ultimately governed Bradshaw’s entitlement to vacation and comp time; and that

KCDC had tendered Bradshaw an amount it had calculated to be the cash

equivalent of those hours.7

The circuit court ultimately adjudicated these claims consistently with

KCDC’s position, but it did so in two phases. In its July 31, 2024 order of

dismissal – the first phase – the circuit court determined with respect to the “failure

to hire an executive assistant” aspect that KCDC’s “failure” could not give rise to a

breach of contract absent any allegation that Bradshaw had proposed the hiring of a

qualified applicant or that the Board had rejected her recommendation; and that in

any case “it was not a fringe benefit personal to Bradshaw, but rather an

employment policy designed to improve the efficiency of the corporation.”

Continuing in that vein, it explained:

[I]f [Bradshaw] had notified the Board that she was

claiming compensatory time for the additional work she

allegedly did as a result of this position remaining vacant,

perhaps the Board would have required her to hire an

assistant they could afford, or to replace Bradshaw with

another Executive Director who could do the required

work without claiming over 3,000 hours of compensatory

time.

July 31, 2024 order (Record at 146).

7

See July 15, 2024 Hearing at 10:17:43 – 10:18:32.

-9-

With respect to the “failure to appropriately pay comp and vacation

time” aspects, the circuit court noted that as part of her employment contract,

Bradshaw was only to receive the same fringe benefits, including holidays,

vacation and sick leave, as regular full-time employees of Franklin County –

irrespective of KCDC’s failure to hire an executive assistant for her. It noted

Bradshaw provided no indication that she sought or received approval of the Board

for any overtime hours, much less for the 3,143.5 overtime hours she had allegedly

worked over the course of her five years of employment to compensate for the lack

of an executive assistant.8 It further explained that “Full-time regular employees of

Franklin County who had the same months of service as Bradshaw were permitted

to carry over 277.5 hours of vacation time from one year to the next.”9 Continuing

in this vein, it held:

[Bradshaw’s] claims for vacation time and compensatory

time in excess of amounts provided for by Franklin

County government fail to state a claim upon which relief

can be granted. Under the contract, she is explicitly

limited to the vacation time and compensatory time

provided for in the personnel policy applying [to] the

Franklin County government. Defendants have conceded

that Bradshaw is entitled to whatever fringe benefits she

has earned as a regular, full-time employee of Franklin

County. Defendants have represented to the court that

they have tendered a check for the amount she is due.

While the exact amount due may not be fully agreed

8

Record at 129.

9

Record at 133.

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upon between the parties, there is no question that

Franklin County government policy controls, and

therefore [Bradshaw’s] claims for compensation in

excess of those amounts cannot be sustained.

Record at 132. In a footnote, the circuit court added: “If an actual controversy

should arise about the amount Bradshaw is entitled to, the parties may bring that

issue back before the Court.”10 It concluded by stating:

WHEREFORE, for the reasons stated above,

Defendant’s Motion to Dismiss is GRANTED. This

matter is DISMISSED for failure to state a claim upon

which relief can be granted. The issues related to

vacation time and comp time may be brought back before

the Court should the parties be unable to reach a

conclusion between themselves. This is a final and

appealable order and there is no just cause for delay.

Record at 146.

Based on what is set forth above and the circuit court’s use of the CR

54.02(1) finality language in the concluding sentence of its order, the circuit court:

(1) dismissed the part of Bradshaw’s three ostensible breach of contract claims

discussed herein to the extent they sought compensation beyond the monetary

equivalent of 277.5 hours of vacation time and 50 hours of comp time; and (2)

reserved jurisdiction to resolve whether KCDC had, as it claimed, tendered

Bradshaw an amount sufficient to satisfy that monetary equivalent.

10

Record at 133 n.1.

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The second phase of how the circuit court adjudicated these claims

then began with KCDC’s August 7, 2024 “notice of filing of proof of payment.”

Taken objectively, this was a motion for summary judgment regarding what

remained. KCDC’s filing included: (1) a copy of a negotiated February 20, 2024

check from KCDC, payable to “Treasurer, Franklin County,” in the amount of

$14,502.39 and bearing a check number of 7628; (2) a spreadsheet detailing

KCDC’s calculations of that amount, which were based upon gross pay of $16,794

(277.5 vacation hours plus 50 comp hours multiplied by Bradshaw’s hourly salary

rate of $51.28), minus deductions for FICA, Medicare tax, local tax, and Kentucky

Employees Retirement Systems; (3) a bank record indicating check number 7628

had been negotiated and paid on February 28, 2024; and (4) a copy of an August 6,

2024 letter KCDC’s attorney purportedly sent to Bradshaw’s counsel that

explained its calculations, and noted that the check had been made payable to the

Franklin County Treasurer at Bradshaw’s request so that the funds could be rolled

into her retirement account, and that the check had been negotiated on February 28,

2024. The letter ended by stating:

Given the court’s July 31, 2024, Opinion and Order, I

believe this should conclude all matters and shows

KCDC fully satisfied its salary and benefits obligations

to Bradshaw. We intend to file a copy of this

information in the Court record to address any question

left open by the Court’s Opinion about this topic.

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Also on August 7, 2024, Bradshaw filed a CR 59.05 motion for the

circuit court to alter, amend, or vacate its July 31, 2024 order. There, she asserted

– incorrectly – that the circuit court had not reserved jurisdiction to resolve

whether KCDC had, as it claimed, tendered Bradshaw an amount sufficient to

satisfy that monetary equivalent. She also faulted the circuit court for providing

her what she believed had been inadequate time to conduct discovery before

dismissing her claims. However, Bradshaw did not explain what additional

discovery she wished to seek. Lastly, she took issue with the fact that the circuit

court had styled its July 31, 2024 order as a summary judgment order, rather than

as a dismissal pursuant to CR 12.02.

In its August 9, 2024 response, KCDC urged the circuit court to (1)

deny Bradshaw’s CR 59.05 motion and (2) dismiss what remained of these claims.

To that latter point, it reiterated the substance of its “notice of filing of proof of

payment” and argued, “Bradshaw has been paid all of the compensatory ‘overtime’

to which she is entitled, and so she cannot show that she has been damaged by any

alleged breach of contract with regard to the hiring of an assistant. No amount of

discovery will change the content of the contract or the Ordinances.”

On September 3, 2024, Bradshaw filed a reply memorandum. There,

she provided more clarity regarding the additional discovery she wished to seek,

which (relevant to these claims) was information regarding: (1) “the factual

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circumstances related to Ms. Bradshaw’s claim that KCDC failed to provide her

with an executive assistant as promised and that she had to work significant

overtime to compensate for the lack of assistance”;11 and (2) “what she has been

paid and what she was entitled to be paid” regarding her “accumulated vacation

time and comp time[.]”12

But, Bradshaw did not controvert or address any of the evidence

KCDC had put forth regarding the $14,502.39 payment it had made to the Franklin

County Treasurer at her direction. Instead, she asserted “the non-moving party

does not have the burden of proof to overcome a motion for summary judgment,”

that she was entitled to “ample opportunity to complete discovery,”13 and that

KCDC asserts that there is nothing further to adjudicate

regarding Ms. Bradshaw’s claim that she has not been

fully paid for her vacation time and comp time because

KCDC has tendered to her a check for what it believes

she is owed, and that check has been negotiated.

However, KCDC’s belief the issue has been resolved

does not make it resolved. Ms. Bradshaw does not

believe the issue has been resolved and claims she has

not been paid in full for her accumulated time.14

11

Record at 184.

12

Record at 185.

13

Record at 187.

14

Record at 188.

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On September 26, 2024, the circuit court then entered its order

resolving what remained of this litigation. As it pertained to these breach of

contract claims, the circuit court held in relevant part:

Since Bradshaw was tendered payment for the amount of

vacation and comp time allowed under the personnel

policy, the issue is moot. There are no disputes of

material fact surrounding the issue. The record is clear

on both the facts that Bradshaw’s employment contract

incorporated the policies of the Franklin County

Ordinances, and that said policies capped vacation and

compensatory time. The clarity of these policies is

uncontested and, combined with Bradshaw’s failure to

contest the application of these policies, the fact that

KCDC tendered the amount owed to Bradshaw pursuant

to the policies leaves no room for further remedy on the

issue. She obtained all the relief to which she could

possibly be entitled when the KCDC tendered her a

check for the full amount she was due under her contract.

Therefore, Bradshaw has failed to state a claim upon

which relief may be granted. This decision was based on

allegations made in the complaint, undisputed contract

terms, and the Franklin County Ordinance which was

properly subject to judicial notice. Thus, there was no

manifest error of law or fact central to the decision of the

Court. Further, there is no need for the Court to retain

jurisdiction on this matter.

b. Standard of review

As discussed, the circuit court ultimately treated KCDC’s CR 12.02

motion to dismiss Bradshaw’s claims as a motion for summary judgment.

Accordingly,

“The standard of review on appeal of

a summary judgment is whether the trial

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court correctly found that there were no

genuine issues as to any material fact and

that the moving party was entitled to

judgment as a matter of law.” Coomer v.

CSX Transp. Inc., 319 S.W.3d 366, 370 (Ky.

2010). We review a trial court’s summary

judgment ruling de novo. Blankenship v.

Collier, 302 S.W.3d 665, 668 (Ky. 2010).

We must also view the record in a light most

favorable to the nonmoving party and

resolve all reasonable doubts in that party’s

favor. Steelvest, Inc. v. Scansteel Serv. Ctr.,

Inc., 807 S.W.2d 476, 480 (Ky. 1991).

Peterson v. Foley, 559 S.W.3d 346, 348 (Ky.

2018). Moreover, the party opposing summary judgment,

“cannot rely on the hope that the trier of fact will

disbelieve the movant’s denial of a disputed fact, but

must present affirmative evidence in order to defeat a

properly supported motion for summary judgment.”

Steelvest, 807 S.W.2d at 481 (internal quotation [marks]

and citations omitted).

Eagle Furniture Manufacturers, LLC v. Nautilus Ins. Co., 706 S.W.3d 780, 783

(Ky. App. 2025). This appeal also involves review of the circuit court’s legal

constructions of contracts, statutes, and ordinances, which we review de novo.

c. Analysis

Bradshaw offers four arguments on appeal regarding why, in her

view, the circuit court erred in dismissing her breach of contract claims discussed

above. First, Bradshaw contends that for purposes of opposing KCDC’s motion to

dismiss her breach of contract claims, she had no obligation to plead or adduce

evidence supporting that she fulfilled any conditions precedent. Alternatively, she

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argues that her allegation in Paragraph 77 of her complaint effectively pled that she

satisfied the “condition precedent” regarding her obligation, per Section 7 of her

employment contract, to recommend the name of an executive assistant and terms

and conditions of employment to KCDC. She argues the circuit court erred to the

extent it held otherwise.

We disagree. In breach of contract actions, whether a condition

precedent set forth in a contract has been satisfied is part of what a plaintiff must

prove. See, e.g., Kuntz v. Peters, 286 Ky. 227, 150 S.W.2d 665, 667 (1941) (“[A]

party seeking to enforce specific performance usually has the burden of proving

that he has complied with its terms, or that he is ready, able, and willing to perform

his obligations under the contract, in their entirety, and to do whatever has been

made a condition precedent on his part.”) (emphasis added) (citation omitted). It is

also part of what a plaintiff must generally plead. See CR 9.04. Here, Bradshaw

did not plead that she satisfied any conditions precedent inhering in her contract

with KCDC. Nor, even after KCDC pointed out that shortcoming in its motion to

dismiss, did she seek to amend her complaint to aver generally that all conditions

precedent had been performed or had occurred. Id. Bradshaw also did not attempt

to adduce any evidence that she had satisfied the conditions precedent. By failing

to plead or adduce evidence supporting that she fulfilled these conditions precedent

inhering in her contract, Bradshaw proceeded at her own peril.

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As for the latter part of Bradshaw’s argument, even if Paragraph 77 of

her complaint did effectively plead that she satisfied the “condition precedent”

regarding her obligation to recommend the name of an executive assistant and

terms and conditions of employment to KCDC, the point is irrelevant: KCDC’s

failure to hire Bradshaw an executive assistant had no bearing upon the amount of

vacation time and comp time Bradshaw was entitled to accrue, and those were the

only measures of damages Bradshaw asserted with respect to these three breach of

contract claims.

For her second argument, Bradshaw contends:

In its motion to dismiss, KCDC alleged that the

maximum amount of unpaid vacation and comp time

Bradshaw could accumulate under the county employee

leave ordinance, based upon her length of employment,

was 277.5 hours vacation time and 50 hours comp time.

Although there is no evidence in the record as to how

long Bradshaw was employed with KCDC, or with the

county before KCDC, the court concluded that KCDC’s

allegation as to Bradshaw’s maximum accumulated

vacation and comp time to be true. ([Record] R. at 132-

133.) This holding was in error under the summary

judgment standard. Viewing the record in a light most

favorable to Bradshaw, and resolving all doubts in her

favor, it is not impossible for Bradshaw to produce

evidence at trial warranting a judgment in her favor as to

the vacation and comp time claims.

Bradshaw Br. at 11-12 (emphasis added).

Our response to this argument is threefold. First, the length of

Bradshaw’s term of service had no bearing upon her ability to accumulate comp

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time, which was capped at 50 hours per year regardless. See Franklin Cnty. Ord. §

30.051(B)(1). Thus, it would be impossible for Bradshaw to produce evidence at

trial warranting a judgment in her favor as to her claim for the monetary equivalent

of 3,143.5 hours of comp time.

Second, even if Bradshaw worked more than five years for KCDC

and/or Franklin County, she would not have been entitled to carry over more than

277.5 hours of vacation time per year unless she had accrued a minimum of 120

months (e.g., 10 years) of service – in which case she could have carried over

337.5 hours. The most vacation time she could have carried over would have been

450 hours – and only if she had accrued a minimum of 240 months (e.g., 20 years)

of service. See Franklin Cnty. Ord. § 30.077(B). Thus, even if Bradshaw had

worked more than five years for KCDC or Franklin County, it would be impossible

for Bradshaw to produce evidence at trial warranting a judgment in her favor as to

her claim for the monetary equivalent of 1,189.5 hours of vacation time.

Lastly, there is “evidence in the record as to how long Bradshaw was

employed with KCDC.” That evidence was her employment contract – the only

contract that was at issue and allegedly breached in this matter. Her employment

contract specified an employment period of five years from January 15, 2019,

through January 15, 2024. If Bradshaw was employed with KCDC or the county

longer than that, she made no such allegation in her complaint; she made no such

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insinuation in any of her other filings of record below; she has never indicated how

much longer than five years she might have worked for KCDC or Franklin County;

and most importantly, she did not bring this point to the circuit court’s attention

after it entered either of its judgments – both of which relied upon the five-year

term set forth in Bradshaw’s employment contract. “The appellate court reviews

for errors, and a nonruling is not reviewable when the issue has not been presented

to the trial court for decision.” Turner v. Commonwealth, 460 S.W.2d 345, 346

(Ky. 1970).

For her third argument, Bradshaw contends:

The court’s error as to the vacation and comp time claims

went further. The judgment acknowledged that KCDC

admitted in its motion to dismiss that it still owed

Bradshaw for 277.5 hours of vacation time and 50 hours

of comp time, and the judgment held that the exact

amount owed was undetermined and unpaid.

Nevertheless, the judgment dismissed these claims in

their entirety. (R. at 133). It was error for the court to

hold that Bradshaw was owed money for unpaid vacation

and comp time as she claimed, but then dismiss such

claims.

Bradshaw Br. at 12.

The problem with Bradshaw’s argument is that it ignores the events

that transpired after the circuit court entered its July 31, 2024 order (e.g., after “R.

at 133”). To review, KCDC effectively moved for summary judgment days later

regarding the exact amount owed that was undetermined and unpaid to Bradshaw.

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Bradshaw responded by asserting she believed KCDC’s evidence did not resolve

the issue, that she had no obligation to respond to KCDC’s evidence, and that she

was entitled to more time for discovery. Afterward, the circuit court summarily

dismissed this aspect of Bradshaw’s claim, determining in its September 26, 2024

order that Bradshaw “obtained all the relief to which she could possibly be entitled

when the KCDC tendered her a check for the full amount she was due under her

contract,” and that “[t]here are no disputes of material fact surrounding the issue.”

KCDC submitted a properly supported motion for summary judgment

regarding the exact amount owed that was undetermined and unpaid to Bradshaw.

Contrary to what she surmised below, Bradshaw was then obligated “to come

forward with some evidence casting doubt on the validity of” what KCDC

presented. Blackstone Mining Co. v. Travelers Ins. Co., 351 S.W.3d 193, 200 (Ky.

2010). “[A] party opposing a properly supported summary judgment motion

cannot defeat it without presenting at least some affirmative evidence showing that

there is a genuine issue of material fact for trial.” Id. (citation omitted). Bradshaw

failed to fulfill her obligation. Her unsupported belief that an issue remained

unresolved in this regard was insufficient to oppose KCDC’s motion because

“‘[b]elief’ is not evidence and does not create an issue of material fact.” Sparks v.

Trustguard Ins. Co., 389 S.W.3d 121, 124 (Ky. App. 2012) (citations omitted).

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Additionally, Bradshaw had no entitlement to additional discovery –

only a reasonable opportunity to conduct discovery – which also leads to

Bradshaw’s fourth argument regarding this set of claims. Bradshaw takes issue

with the fact that the circuit court did not indicate it would treat part or all of

KCDC’s CR 12.02 motion as a summary judgment motion until the circuit court

expressed that sentiment in its July 31, 2024 order. She asserts the circuit court

accordingly abused its discretion by not providing her more of an opportunity to

conduct discovery regarding certain issues relating to these claims.

We disagree. To be clear,

[S]ummary judgment is not dependent upon discovery

schedules. [KCDC was] entitled to move for summary

judgment “at any time.” Kentucky Rule of Civil

Procedure (“CR”) 56.02. And, so long as a party

responding to such a motion has had an adequate

opportunity to conduct discovery beforehand, the circuit

court does not abuse its discretion in granting such a

motion. See Hartford Ins. Group v. Citizens Fidelity

Bank Trust Co., 579 S.W.2d 628, 630 (Ky. App. 1979);

see also Blankenship, 302 S.W.3d at 668 (“The trial

court’s determination that a sufficient amount of time has

passed and that it can properly take up the summary

judgment motion for a ruling is reviewed for an abuse of

discretion.”).

To request additional time for discovery in

response to a summary judgment motion, a party would

need to provide an affidavit under CR 56.06 alleging

genuine issues pertaining to material facts, or request “a

continuance to obtain affidavits pursuant to CR 56.06.”

Hartford Ins. Group, 579 S.W.2d at 630-31.

-22-

Nautilus Ins. Co., 706 S.W.3d at 788.

As discussed, in her September 3, 2024 reply memorandum,

Bradshaw indicated she wished to conduct more discovery regarding (1) “the

factual circumstances related to Ms. Bradshaw’s claim that KCDC failed to

provide her with an executive assistant as promised and that she had to work

significant overtime to compensate for the lack of assistance”; and (2) “what she

has been paid and what she was entitled to be paid” regarding her “accumulated

vacation time and comp time[.]” Bradshaw also argues on appeal that she should

have been permitted more time to discover (3) how long she was employed with

KCDC, or with the county before KCDC.

As we have explained at length, however, the first of those issues was

irrelevant. The second was an issue of basic math. The third should have been

known to Bradshaw at all relevant times. And with respect to each of those issues,

Bradshaw provided no CR 56.06 affidavit alleging genuine issues pertaining to

material facts or requesting a continuance to obtain affidavits. Moreover, there

were more than seven months between the date Bradshaw filed her complaint and

the date the circuit court ultimately disposed of this litigation. In Hartford, 579

S.W.2d 628, this Court deemed six months between the filing of the complaint and

the entry of summary judgment to be a sufficient opportunity to either engage in

discovery or inform the trial court why a ruling on summary judgment ought to be

-23-

continued pursuant to CR 56.06. Thus, we do not conclude that the circuit court

prematurely entered summary judgment regarding these claims. In summary,

Bradshaw has identified no reversible error with respect to the circuit court’s

decision to dismiss these first three of her four breach of contract claims.

2. “Breach of Contract: Termination of Contract in Violation of Open

Meetings Law”

The heading of this section of our analysis (which we have borrowed

from Bradshaw’s brief) is a misnomer because this, Bradshaw’s fourth and final

breach of contract claim, is mashed up with yet another of her claims – one

asserting violations of Kentucky’s Open Meetings Act, KRS15 61.805 et seq.

(“OMA”). For the sake of brevity, we will address both of those claims here. The

provision of Bradshaw’s employment contract with KCDC relevant to these claims

was as follows:

10. Renewal/Non-Renewal. This contract may be

renewed as the parties hereto agree. Notice of

Employer’s intent to not renew this contract shall be

furnished in writing to Employee three (3) months prior

to the expiration date herein contained. This agreement

will automatically renew at the end of each term of five

years for a further term of five years unless otherwise

notified three months prior to expiration date.

Bradshaw’s fourth breach of contract claim may be summarized as

follows. KCDC undisputedly gave Bradshaw actual written notice on October 12,

15

Kentucky Revised Statute.

-24-

2024 – more than three months before the expiration date of her employment

contract – that it intended not to renew her contract. But, Bradshaw believes

KCDC’s notice to her of its intention not to renew her contract was void ab initio

because KCDC made its decision to give her that notice during an October 6, 2023

meeting where, according to Bradshaw, KCDC committed five violations of the

OMA. Therefore, Bradshaw reasons, when her employment with KCDC ended on

January 15, 2024 (e.g., when the five-year term of her employment contract

expired), her employment did not end pursuant to Paragraph 10 of the contract, and

KCDC breached its contract by refusing to allow her to continue her employment.

Bradshaw further alleged that these five purported OMA “violations,”

apart from automatically negating KCDC’s otherwise timely nonrenewal notice,

also entitled her to an award of $500 ($100 for each violation) and attorney’s fees

pursuant to KRS 61.848(6). The December 21, 2023 OMA complaint Bradshaw

tendered to KCDC, which Bradshaw included as an exhibit to her complaint before

the circuit court, detailed those violations as follows:

On October 6, 2023, a “special” KCDC meeting was held

at the Fiscal Court building to discuss during closed

session the “appointment, discipline, or dismissal of an

individual employee, member, or student without

restricting that employee’s, member’s, or student’s right

to a public hearing if requested” per KRS 61.810(1)(f).

Exhibit 1 – October 6, 2023 Agenda. No other details

were provided. The closed session, or special meeting,

was never raised during an earlier regular meeting.

-25-

Before the meeting, the agenda was not placed

conspicuously within the Fiscal Court building. Once the

meeting started and KCDC entered closed session, the

board discussed and took final action not to renew Ms.

Bradshaw’s Contract for an additional five years.

Exhibit 2 – Contract. After emerging from closed

session, the board immediately voted not to renew the

Contract. Six days later on October 12, 2023, . . .

KCDC’s former attorney, tendered your notice not to

renew per Paragraph 10. Exhibit 3 – Notice Letter.

KCDC violated numerous open meetings laws relating to

the special meeting and closed session. First, KCDC did

not conspicuously post the meeting agenda within the

Fiscal Court before the meeting, in violation of KRS

61.823(4)(c). Second, KCDC did not announce the

special meeting and closed session during an earlier

regular meeting, violating KRS 61.815(1)(a). Third, the

closed meeting description simply reciting KRS

61.815(1)(f) is insufficient notice of the topics to be

discussed during closed session, violating KRS

61.815(1)(a). Fourth, discussing Ms. Bradshaw’s

contract renewal does not fall within the closed session

exception for “appointment, discipline, or dismissal” of

an individual employee, violating KRS 61.810(1)(f).

Fifth, KCDC took final action, as defined by KRS

81.805(3) [sic] and KRS 61.815(1)(c), during the closed

session by agreeing not to renew the contract then

immediately voting thereafter in open session, in

violation of KRS 61.815(1).

The circuit court dismissed Bradshaw’s fourth breach of contract

claim and her OMA claims as a matter of law. Bradshaw argues the circuit court

erred in doing so, but we agree with its disposition. The basic misapprehension of

Bradshaw’s breach of contract claim is its assertion that violations of the OMA

render official actions void ab initio. They do not. Under KRS 61.848(5), a court

-26-

of appropriate jurisdiction has authority to remedy a situation where a public

agency takes formal action without substantial compliance with the requirements

of KRS 61.810, 61.815, 61.820, and 61.823. One possible remedy16 is that any

such action “shall be voidable by a court of competent jurisdiction.” KRS

61.848(5) (emphasis added). “A ‘voidable’ action is an action that is valid until it

is annulled.” Carter v. Smith, 366 S.W.3d 414, 424 (Ky. 2012) (citing BLACK’S

LAW DICTIONARY 1709 (9th ed. 2009)).

Whether such formal action should be voided is the plaintiff’s burden

to prove through a showing of prejudice and equity.17 Further, a simple OMA

violation is insufficient to trigger the statutory sanctions of KRS 61.848(6). The

agency’s actions must be “willful”; and even then, the provision still leaves the

16

That formal action is voidable “does not limit the court from granting other appropriate relief”

under the OMA. See Jefferson County Bd. of Ed. v. Courier-Journal, 551 S.W.2d 25, 29 (Ky.

App. 1977).

17

See, e.g., Lincoln Trail Grain Growers Association, Inc. v. Meade Cnty. Fiscal Court, 632

S.W.3d 766, 773 (Ky. App. 2021) (explaining plaintiffs asserting OMA violations “bear the

burden of proof on these claims as well as the appropriate remedies”); id. at 775 (“[I]t is for the

trial court to determine the appropriate remedies available . . . and the equities among the various

parties.”); Chandler v. Bullitt Cnty. Joint Planning Comm’n, 125 S.W.3d 851, 856 (Ky. App.

2002) (“Since there was no showing of prejudice by the Commission’s violation . . . The trial

court was well within its discretion in refusing to void the Commission’s action.”); Stinson v.

State Bd. of Accountancy, 625 S.W.2d 589, 592 (Ky. App. 1981) (“[S]ince [the OMA] renders an

action taken without substantial compliance with KRS 61.815, not void but voidable, we do not

choose to void the action of the Board because Stinson raised no objection and because he

demonstrated no prejudice as a result of the Board’s action.”).

-27-

imposition of fees, costs, and/or penalties to the court’s discretion. See id. (“Any

person who prevails . . . may be awarded costs[.]”).

In dismissing these claims, the circuit court held that the allegations of

Bradshaw’s complaint and evidence of record, taken in the light most favorable to

Bradshaw, either did not demonstrate KCDC failed to substantially comply with

the OMA, did not demonstrate Bradshaw suffered prejudice, or did not

demonstrate a willful violation of the OMA occurred.18 With that in mind, we will

address (in reverse order) what Bradshaw alleges were KCDC’s OMA violations,

beginning with her assertion that “KCDC took final action, as defined by KRS

81.805(3) [sic] and KRS 61.815(1)(c), during the closed session by agreeing not to

renew the contract then immediately voting thereafter in open session, in violation

of KRS 61.815(1).”

Taken objectively, Bradshaw is faulting KCDC’s Board for taking

what she believes were two “final actions” regarding her employment contract

during the October 6, 2023 special meeting: (1) a vote during the closed session

for the purpose of reaching a general consensus among its members regarding

whether to renew her employment contract; and (2) a subsequent vote during the

18

The circuit court alternatively concluded – with little explanation – that KCDC’s Board was

not required to reach a voting consensus during an open meeting to decide not to renew

Bradshaw’s contract. Considering our disposition of this matter, it is unnecessary to address that

point.

-28-

open session for the purpose of finalizing its consensus. Bradshaw believes the

first of those votes was unauthorized by the OMA.

We disagree. Assuming such a preliminary vote occurred during the

closed session, we are persuaded by the Kentucky Attorney General’s stance on

this issue: “[a] straw vote . . . for the purpose of reaching a general consensus

among the members [of a public agency] does not constitute a violation of the

Open Meetings Act as long as final action is taken in open session and the vote of

each member, or his abstention, [is] recorded in the minutes.” In re: Kentucky

Leader-News/Muhlenberg County Board of Education, Ky. OAG19 17-OMD-124,

2017 WL 2869973, at *1 (Jun. 30, 2017).20 Here, KCDC filed the minutes of the

October 6, 2023 meeting into the record as “Exhibit 5” to its motion to dismiss.

Bradshaw has never contested the veracity of the minutes. The minutes provided

in relevant part:

Mr. Hulette moved that the [Board of Directors] go into

closed session per KRS 61.810(1)(f) to discuss

appointment, discipline, or dismissal of an individual

employee, member, or student without restricting that

employee’s, members [sic], or student’s right to a public

hearing if requested. Mr. Cecil seconded the motion and

the motion was approved. It was noted that a vote may

be taken following the closed session.

19

Opinion of the Attorney General.

20

“While we are not bound by opinions of the Attorney General; this court can, however, afford

them great weight.” Louisville Metro Dep’t of Corrections v. King, 258 S.W.3d 419, 421-22

(Ky. App. 2007) (citation omitted).

-29-

CLOSED SESSION/OPEN SESSION

The Chair noted that Mr. Hulette made a motion to return

to open session and Mr. Rosen had seconded the motion.

Mr. Cecil made a motion to comply with paragraph 10 of

the employment contract dated January 16, 2019 between

the KCDC and Terri Bradshaw, the President/CEO of

KCDC, to provide notice of non-renewal of the contract,

and direct the acting Chairperson to sign the written

notice on behalf of KCDC Board of Directors. The

motion was seconded by Rich Rosen. There was no

discussion. All approved. The motion passed.

As recorded in the minutes, the Board took final action and each of its

members voted regarding Bradshaw’s employment contract in open session. No

substantial violation of the OMA occurred in this respect.

Next, Bradshaw asserts that “discussing Ms. Bradshaw’s contract

renewal does not fall within the closed session exception for ‘appointment,

discipline, or dismissal’ of an individual employee, violating KRS 61.810(1)(f).”

In support, she cites Carter, 366 S.W.3d 414.

We disagree. In Carter, the Kentucky Supreme Court explained that

KRS 61.810(1)(f) does not permit public agencies to discuss in closed session an

employee’s voluntary resignation and subsequent reemployment as an independent

contractor. Id. at 421. This is so because a voluntary resignation is not a

“dismissal” contemplated by the statute. Id. And, although the individual in

question would have been “appointed” to perform work on behalf of the public

-30-

agency, the individual was being appointed as an independent contractor – not as

an employee. For those reasons, the exception did not apply in that matter. Id. at

422.

Here, the Board discussed in closed session whether to renew

Bradshaw’s contract to work as its employee, not as its independent contractor.

Furthermore, KRS 61.810(1)(f) logically applied to the Board’s decision to renew

or non-renew Bradshaw’s contract. A decision to non-renew could be considered a

“dismissal,” depending on the terms of that employee’s contract. See, e.g., Gibson

v. Bd. of Educ. of Jackson Cnty., 805 S.W.2d 673 (Ky. App. 1991) (the failure to

renew a teaching contract operated to dismiss the teacher without due process).

Here, as a practical matter, a “dismissal” occurred: Bradshaw’s employment with

KCDC would have automatically continued for another five-year term, but it did

not because the Board took affirmative action, pursuant to Paragraph 10 of her

employment contract, to stop that from happening.

Conversely, if the Board had decided to renew her contract, its

decision to do so would have qualified as an “appointment.” Specifically,

The word “appoint” means “to choose or designate

(someone) for a position or job, especially in

government.” BLACK’S LAW DICTIONARY (11th ed.

2019). So long as “someone” has been chosen or

designated to fill the position, that person has been

“appointed.”. . . KRS 61.810(1)(f) plainly applies in any

instance in which the discussions may lead to the

-31-

“appointment” of an employee, regardless of whether

that employee had been previously appointed.

In re: Larry Richards/Fish and Wildlife Commission, Ky. OAG 21-OMD-091,

2021 WL 2181999, at *2 (May 17, 2021).

Next, Bradshaw argues “the closed meeting description simply

reciting KRS 61.815(1)(f) is insufficient notice of the topics to be discussed during

closed session, violating KRS 61.815(1)(a).” In this vein, she takes specific issue

with two instances where the Board described the topic to be discussed during the

closed session of its October 6, 2023 special meeting: first, the Board’s description

of that topic during the open session of its meeting as set forth in the minutes;

second, the Board’s roughly identical description of that topic as it was set forth in

the agenda included with the written notice provided of its special meeting.21 As

for why Bradshaw believes those closed meeting descriptions did not substantially

comply with the OMA, the only explanation she provides is: “The notice does not

state there would be discussion about the renewal of Bradshaw’s contract or why

closed session was necessary.”22 (Emphasis added.)

We will start with how the Board described the topic of its closed

session during the open session of its October 6, 2023 special meeting. With

21

Bradshaw included the Board’s notice as an exhibit to her complaint.

22

Bradshaw Br. at 17.

-32-

reference to the formalities that must be observed during open session prior to

conducting a closed session, KRS 61.815(1)(a) provides:

Notice shall be given in regular open meeting of the

general nature of the business to be discussed in closed

session, the reason for the closed session, and the specific

provision of KRS 61.810 authorizing the closed

session[.]

Our Supreme Court has explained that KRS 61.815 requires a public

body to “state the specific exception contained in the statute which is relied upon

in order to permit a secret session. There must be specific and complete

notification in the open meeting of any and all topics which are to be discussed

during the closed meeting.” Floyd County Bd. of Educ. v. Ratliff, 955 S.W.2d 921

(Ky. 1997). Based upon Ratliff, and with respect to KRS 61.810(1)(f), the

Kentucky Attorney General has opined:

Merely parroting the language of the provision, as the

Board did here, does not satisfy the standard of “specific

and complete notification” nor does it constitute a

“sufficiently specific” description of the business at hand.

. . . “[A] notification which does not include a statement

of the specific exception relied upon to conduct a closed

session, a description of the general nature of the

business to be discussed [appointment, discipline, or

dismissal of an individual employee] in, and the reason(s)

for, the closed session [which of these particular actions

is contemplated] is inadequate.

In re: Sandra Lee Clevenger/Spencer County Board of Education, Ky. OAG 08-

OMD-165, 2008 WL 3865857, at *4 (Aug. 11, 2008) (emphasis added).

-33-

Recall, according to the minutes of its October 6, 2023 meeting, the

Board justified its need for a closed session by stating it was necessary “per KRS

61.810(1)(f) to discuss appointment, discipline, or dismissal of an individual

employee, member, or student without restricting that employee’s, members [sic],

or student’s right to a public hearing if requested.” The Board’s justification was

arguably inadequate because, while it cited the specifically applicable exception

and indicated the general nature of the business to be discussed (by quoting the

exception’s full text), it did not specify which of the particular actions

contemplated by the exception’s full text would be discussed.

That said, Bradshaw does not argue or explain how this amounts to

willful or prejudicial misconduct, as opposed to merely a technical violation of the

OMA. We also disagree with Bradshaw’s argument that the Board should have

rectified this arguable shortcoming by indicating there would be discussion about

the renewal of her contract. While “the public is entitled to know the general

nature of the discussion which would be that it involves either a possible

appointment, a possible dismissal, or a possible disciplinary matter relative to a

specific unnamed person or persons[,]” “the public need not be advised as to the

name of the specific person being discussed in connection with a possible

appointment, dismissal, or disciplinary action[.]” In re: Todd County

-34-

Standard/Todd County Board of Education, Ky. OAG 06-OMD-150, 2006 WL

2309002, at *5 (Aug. 1, 2006).

As for how the Board described the topic of its closed session in the

agenda of its October 6, 2023 special meeting notice, less was required of its

notice. The operative statutory provision, KRS 61.823(3) provides that with

respect to special or emergency meetings:

The public agency shall provide written notice of the

special meeting. The notice shall consist of the date,

time, and place of the special meeting and the agenda.

Discussions and action at the meeting shall be limited to

items listed on the agenda in the notice.

The word “agenda” is not defined in the OMA, but the Attorney

General has aptly defined it in this context:

In construing this provision, the Attorney General

has recognized that although “[t]here is no definition of

the term ‘agenda’ and no explanation as to what

constitutes a satisfactory agenda” in the Act, “‘agenda’ is

defined in part in Webster’s Third New International

Dictionary (1966) as ‘a list or outline of things to be

done, subjects to be discussed, or business to be

transacted.”’ 97-OMD-43, p. 3. This definition, in our

view, contemplates sufficient specificity in the

description of the items to be discussed to insure fair

notice to the public. Fair notice cannot be imputed from

vaguely worded descriptions of agenda items such as

“old business,” “new business,” “open to floor,” and

“open to council.” Further, such vaguely worded

descriptions invite discussions and actions on any topic

without the limitations envisioned by the statute in a

special meeting.

-35-

01-OMD-175, p. 5. We therefore concluded that

“the practice of including open-ended agenda items like

old and new business, or open to counsel and floor, is

inconsistent with the natural and harmonious reading of

KRS 61.823(3), as well as the statement of legislative

policy codified at KRS 61.800, and the goal of

maximizing notice to the public.” Id. at 6, 7.

Applying these principles to an appeal in which an

agenda item reading “Board and Presidential Leadership

ad hoc Committee report” was challenged on the basis

that it was not “sufficiently specific to insure fair notice

to the public that a vote on extension of the President’s

contract would be conducted,” in 02-OMD-22 we held:

While we believe that the [agency] might

have employed more specific language in

describing the contemplated action, namely the

vote on extending the President’s contract, in the

meeting agenda, we are not prepared to say that the

agenda item was so vaguely worded that fair notice

could not be imputed to the public. Certainly, it

cannot be equated with such vague descriptions as

“old business,” and “new business.”

In re: Kim Chasteen / Foley Middle School Site Based Decision Making Council,

Ky. OAG 03-OMD-149, 2003 WL 21518703, at *3-4 (Jul. 1, 2003).

The topic listed in the agenda of the special meeting at issue in 03-

OMD-149 was “Policy & Bylaws.” Id. at *1. Rejecting that this language was

inadequate for purposes of KRS 61.823(3), the Attorney General explained:

“Because the item under discussion was the student dress code policy and bylaws,

we are unpersuaded that distributing a proposed revision to the dress code policy,

-36-

to be discussed at the next Council meeting, exceeded the scope of discussion of

that item, or that fair notice to the public could not have been imputed.” Id. at *5.

The Attorney General also came to a similar conclusion with respect

to language on an agenda indicating a public body would go into closed session to

discuss “a personnel matter on a specific person.” In re: Furman F.

Wallace/Hurstbourne City Commission, Ky. OAG 04-OMD-199, 2004 WL

2515851, at *1 (Oct. 26, 2004). There, the Attorney General rejected the argument

that the public body was required in its agenda “to observe the formalities for

going into closed session ‘by announcing in open session, that pursuant to KRS

61.810(1)(f) it is going into closed session to discuss either the appointment, or the

discipline, or the dismissal of a employee of the agency, indicating which of these

particular actions is contemplated.’” Id. It explained – and we agree – that

argument (which Bradshaw is essentially raising here) constitutes an improper

attempt to “superimpose the requirements for going into closed session found at

KRS 61.815 on the requirements for notice of special meetings found at KRS

61.823(3).” Id. at *4.

If it is fair notice for purposes of KRS 61.823(3) and KRS

61.810(1)(f) for an agenda set forth in a special meeting notice to merely state that

a public body would go into closed session to discuss “a personnel matter on a

-37-

specific person” – and we believe it is – then the KCDC Board certainly cannot be

faulted for stating in its agenda, as it did here,

CLOSED SESSION per KRS 61.810(1)(f) to discuss

appointment, discipline, or dismissal of an individual

employee, member, or student without restricting that

employee’s, members [sic], or student’s right to a public

hearing if requested. A vote may be taken following the

closed session.

Next, Bradshaw argues “KCDC did not announce the special meeting

and closed session during an earlier regular meeting, violating KRS 61.815(1)(a).”

(Emphasis added.) In other words, Bradshaw believes a public body cannot hold a

closed session in an emergency or special meeting unless, during an earlier,

regularly scheduled meeting, the public body: (1) predicted that emergency or

special circumstances would arise in the future and necessitate an emergency or

special meeting prior to its next regularly scheduled meeting; and (2) specifically

stated – during that earlier, regularly scheduled meeting – that it would go into

closed session during that emergency or special meeting.

We disagree. It is enough to say that public bodies cannot be

expected – and are certainly not required – to predict when emergency or special

circumstances will arise in the future. They are only required to provide the public

at least 24 hours’ notice if they schedule an emergency or special meeting to

address those circumstances. See KRS 61.823(4).

-38-

Lastly, Bradshaw argues KCDC failed to “conspicuously post the

meeting agenda within the Fiscal Court before the meeting, in violation of KRS

61.823(4)(c).” As her argument tends to indicate, KRS 61.823(4)(c) provides:

As soon as possible, written notice shall also be posted in

a conspicuous place in the building where the special

meeting will take place and in a conspicuous place in the

building which houses the headquarters of the agency.

The notice shall be calculated so that it shall be posted at

least twenty-four (24) hours before the special meeting.

(Emphasis added.)

Turning to the facts relevant to this argument, nothing of record

indicates where in the fiscal court building KCDC placed its KRS 61.823 notice.

KCDC’s only responses to this point were: (1) “[T]he agenda for all future special

meetings at Fiscal Court will be posted in a conspicuous place, specifically, inside

the door at the Fiscal Court Building at least twenty-four (24) hours before the

special meeting (subject to any emergency)”;23 and (2) “Should this case continue,

discovery will confirm that the posting of meeting agendas was part of Bradshaw’s

job responsibilities.”24 However, KCDC filed into the record (as “Exhibit 6” to its

CR 12.02 motion) a copy of an October 3, 2024 email from KCDC chairperson,

Kimberly Gester, to KCDC’s board members and employees, including Bradshaw.

23

See KCDC’s December 22, 2023 answer to Bradshaw’s OMA complaint (Record at 28).

24

See KCDC’s CR 12.02 motion (Record at 67).

-39-

The email included, as an attachment, the October 6, 2023 Special KCDC meeting

agenda. And the email stated: “All, Attached is the agenda for the special called

KCDC meeting on Friday, October 6, 2023 at 1 PM. We will be meeting in the

conference room at Fiscal Court.” The circuit court cited this email in its July 31,

2024 order as evidence that Bradshaw had actual notice of the special meeting

three days before it occurred.25 Bradshaw, for her part, has never controverted that

email or claimed otherwise; nor does she argue or explain how KCDC’s alleged

failure in this regard amounts to willful or prejudicial misconduct, as opposed to a

mere technical violation of the OMA.

In summary, we find no error in the circuit court’s decision to dismiss

Bradshaw’s OMA claims, or her breach of contract claim predicated upon those

alleged violations. Before concluding this section of our analysis, however, an

additional point must be addressed. Bradshaw argues she was entitled to more

time for discovery regarding these claims. In support, she repeats her arguments

addressed above and adds:

[T]he court did not treat [KCDC’s CR 12.02] motion as a

motion to dismiss. Instead, the court treated it as a

motion for summary judgment without any advanced

notice to Appellant that it would do so prior to Appellant

filing her pleadings in response to the Motion to Dismiss.

As a result, Appellant’s briefings were not postured for

summary judgment review by the trial court.

25

Record at 137.

-40-

Bradshaw Br. at 6.

Bradshaw’s argument has no merit. We have already addressed her

arguments relating to these claims and need not readdress them. The circuit court

did not need to give Bradshaw “advanced notice” that it could treat KCDC’s CR

12.02 motion as a motion for summary judgment – CR 12.02, by its own plain

terms, should have already alerted Bradshaw to that possibility. Furthermore,

Bradshaw does not explain how she would have otherwise “postured” her

briefings. It is not the responsibility of this Court to construct legal arguments on

behalf of an appellant and scour the record to find where it might provide support

for their claims, and we will not do so. Harris v. Commonwealth, 384 S.W.3d 117,

131 (Ky. 2012).

3. Whistleblower claim

Bradshaw claimed KCDC terminated her employment in violation of

the Kentucky Whistleblower Act (KWA), KRS 61.101 et seq. However, the KWA

only applies when an “employee” is subject to some form of reprisal from an

“employer”26 – two words the KWA defines in KRS 61.101 as follows:

(1) “Employee” means a person in the service of the

Commonwealth of Kentucky, or any of its political

subdivisions, who is under contract of hire, express or

implied, oral or written, where the Commonwealth, or

any of its political subdivisions, has the power or right to

26

See generally KRS 61.102.

-41-

control and direct the material details of work

performance;

(2) “Employer” means the Commonwealth of Kentucky

or any of its political subdivisions. Employer also

includes any person authorized to act on behalf of the

Commonwealth, or any of its political subdivisions, with

respect to formulation of policy or the supervision, in a

managerial capacity, of subordinate employees[.]

The circuit court dismissed Bradshaw’s KWA claim against KCDC

because it determined Bradshaw could not be deemed an “employee” and KCDC

could not be deemed an “employer” within the meaning of those provisions.

Bradshaw now claims the circuit court erred in this regard.

We disagree. Whether KCDC is subject to liability under the KWA is

dependent upon whether KCDC is – consistently with KRS 61.101(2) – “the

Commonwealth of Kentucky or any of its political subdivisions.” The answer to

that question requires a determination of whether KCDC would be entitled to

sovereign immunity:27 if it is, then KCDC is an “employer” under the KWA; if it

is not, then the KWA does not apply to KCDC. See N. Ky. Area Dev. Dist. v.

Wilson, 612 S.W.3d 916, 920-25 (Ky. 2020) (applying sovereign immunity

analysis to discern entity’s status as a covered employer under the KWA). Making

27

Parenthetically, if the General Assembly wishes to subject an entity that is not otherwise

entitled to sovereign immunity to liability under the KWA, it knows how to do so. See, e.g., N.

Ky. Area Dev. Dist. v. Wilson, 612 S.W.3d 916, 919 (Ky. 2020) (discussing KRS 147A.116(f)).

It has not done so in this context, so we are constrained to the KWA’s existing parameters.

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that determination depends upon principles distilled from our caselaw. The

following is an apt summary of those principles:

Nothing in [the Kentucky Constitution] directly

incorporates the state’s sovereign immunity. See Yanero

v. Davis, 65 S.W.3d 510, 524 (Ky. 2001); Ky. Ctr. for the

Arts Corp. v. Berns, 801 S.W.2d 327, 329 (Ky. 1990).

But two provisions “indirectly” recognize the doctrine’s

existence. Comair, Inc. v. Lexington-Fayette Urban

Cnty. Airport Corp., 295 S.W.3d 91, 94 (Ky. 2009)

(quoting Wilder, 84 S.W.2d at 39).[28] The first bars

Kentucky from spending money without its legislature’s

approval: “No money shall be drawn from the State

Treasury, except in pursuance of appropriations made by

law[.]” Ky. Const. § 230. The second allows the

legislature to permit suits against Kentucky: “The

General Assembly may, by law, direct in what manner

and in what courts suits may be brought against the

Commonwealth.” Id. § 231.

These two provisions have a narrow reach. They

give Kentucky’s legislature the power to waive sovereign

immunity; they do not give it the power to create that

immunity. See Yanero, 65 S.W.3d at 523-24; Reyes v.

Hardin County, 55 S.W.3d 337, 338-39 (Ky. 2001);

Withers v. Univ. of Ky., 939 S.W.2d 340, 344 (Ky. 1997).

In other words, although § 231 of Kentucky’s

constitution allows its legislature to decide when parties

may sue the “Commonwealth,” Kentucky’s courts get to

decide whether a suit against a particular actor triggers

sovereign immunity because it qualifies as a suit against

the “Commonwealth” within the meaning of § 231.

Withers, 939 S.W.2d at 342-43. So the Kentucky

legislature lacks free rein to grant sovereign immunity to

entities that would not have received it under its

common-law origins. See Berns, 801 S.W.2d at 329-30.

28

The full citation is Kentucky State Park Commission v. Wilder, 260 Ky. 190, 84 S.W.2d 38

(1935).

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Indeed, other constitutional provisions – for example, one

that bars the legislature from limiting the amount that a

plaintiff may recover for injuries, Ky. Const. § 54 –

restrict the legislature’s power to enlarge immunity in

this way. See Yanero, 65 S.W.3d at 525; see also

Caneyville Volunteer Fire Dep’t v. Green’s Motorcycle

Salvage, Inc., 286 S.W.3d 790, 797-802 (Ky. 2009).

Applying this mix of common-law and

constitutional rules, a court considering whether a

specific state actor should receive sovereign immunity

under Kentucky law must proceed in two stages by

asking two questions. First: Would sovereign immunity

have covered this actor at common law? See Yanero, 65

S.W.3d at 523–24; Berns, 801 S.W.2d at 329. Second:

If an actor is otherwise eligible, has the legislature passed

a statute waiving this immunity? Compare Univ. of

Louisville v. Rothstein, 532 S.W.3d 644, 647-48 (Ky.

2017), with Furtula v. Univ. of Ky., 438 S.W.3d 303,

305–06 (Ky. 2014). If not, the entity should receive

immunity. See, e.g., Jefferson Cnty. Pub. Schs. v. Tudor

ex rel. J.T., 664 S.W.3d 600, 604 (Ky. 2023).

. . . A court must first ask whether a state actor is even

eligible for the sovereign immunity that the legislature

may waive. The answer turns on the background

“common law” rules of immunity, presumably as they

existed when Kentucky enacted its current constitution in

1891. Yanero, 65 S.W.3d at 523; cf. William Baude,

Sovereign Immunity and the Constitutional Text, 103 Va.

L. Rev. 1, 8 (2017). Over the years, the Kentucky

Supreme Court has recognized that its cases applying

these principles have not been a model of clarity or

consistency. See Bryant v. Louisville Metro Hous. Auth.,

568 S.W.3d 839, 845 (Ky. 2019); Yanero, 65 S.W.3d at

521. Today, the court has settled on a test that divides

sovereign immunity into two parts: “pure” immunity and

“governmental” immunity. Comair, 295 S.W.3d at 94;

Bryant, 568 S.W.3d at 845.

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The “pure” version of sovereign immunity applies

to a narrow set of state entities that qualify for immunity

without the need to prove anything else. Bryant, 568

S.W.3d at 845. This version unsurprisingly covers

Kentucky itself. See id. It also covers Kentucky’s

counties. Downing, 8 S.W. at 265;[29] see Yanero, 65

S.W.3d at 526 (citing cases). And it covers employees of

these two governments when sued “in their official

capacities” – meaning that the funds from a money

judgment will come from public coffers. Schwindel v.

Meade County, 113 S.W.3d 159, 169 (Ky. 2003). This

rule of pure immunity does not apply, by contrast, to

most entities that these governments create, including

state agencies. See Bryant, 568 S.W.3d at 845. It also

does not apply to cities, which the Kentucky Supreme

Court treats as “municipal corporations” rather than arms

of the government. Comair, 295 S.W.3d at 95. And it

does not apply to state or county employees sued in their

“individual capacities.” Yanero, 65 S.W.3d at 522.

These employees must instead rely on the distinct

doctrine of “qualified” immunity. Id.

The “governmental” version of sovereign

immunity covers a broader set of entities. It can reach

even “non-governmental or quasi-governmental bodies”

(or their employees sued in their official capacities).

Howard v. Big Sandy Area Dev. Dist., Inc., 626 S.W.3d

466, 470 (Ky. 2020); see Comair, 295 S.W.3d at 103.

Yet these entities must meet two additional requirements.

See Coppage Constr. Co. v. Sanitation Dist. No. 1, 459

S.W.3d 855, 859 (Ky. 2015). An entity seeking

governmental immunity must have been created by (and

be under the control of) a government that itself qualifies

for immunity – that is, the entity must have an immune

“parent[.]” See Howard, 626 S.W.3d at 470. Dating

back to the time of Kentucky’s current constitution,

Kentucky courts have also held that the entity must

29

Downing v. Mason Cnty., 87 Ky. 208, 8 S.W. 264, 265 (1888).

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undertake “an ‘integral’ function of state government.”

Id.; compare Williams v. Louisville Ind. Sch. of Reform,

95 Ky. 251, 24 S.W. 1065, 1066 (1894), with Gross v.

Ky. Bd. of Managers of World’s Columbian Exposition,

105 Ky. 840, 49 S.W. 458, 459 (1899).

New Albany Main St. Props. v. Watco Cos., LLC, 75 F.4th 615, 624-25 (6th Cir.

2023).

With that in mind, KCDC is obviously not entitled to “pure”

sovereign immunity because it is not the state or a county government. It is also

not entitled to governmental immunity, either. Relative to the first part of the

governmental immunity test outlined above, KCDC is “a non-profit corporation

established under KRS Chapter 154.50 as a joint city/county effort for industrial

development in Frankfort and Franklin County.” Delphi Auto. Systems, LLC v.

Cap. Cmty. Econ./Indus. Dev. Corp., Inc., 434 S.W.3d 481, 483 (Ky. 2014). In

other words, it was formed and its membership was appointed equally by a non-

immune entity (the City of Frankfort) and an immune entity (Franklin County), so

it cannot be considered the “alter ego” or to be under the control of an immune

entity. See KRS 154.50-326(1)(c); see also Franklin Ord. § 31.03(B); Frankfort

Ord. § 36.197(A) (providing KCDC’s board consists of six members, three of

whom are appointed by the Mayor of Frankfort; three by the Franklin County

Judge/Executive; and that the Mayor and Judge/Executive sit as ex officio, non-

voting members).

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Regarding the second part of the test, it also does not perform an

integral function of state government. To elaborate, entities that serve integral

functions of state government focus upon “state level governmental concerns that

are common to all of the citizens of this state, even though those concerns may be

addressed by smaller geographic entities (e.g., by counties). Such concerns

include, but are not limited to, police, public education, corrections, tax collection,

and public highways.” Comair, 295 S.W.3d at 99. By contrast, an entity that does

not serve integral functions of the state tends “to exercise proprietary functions

addressing purely local concerns” and is “created mainly for the interest,

advantage, and convenience of the locality and its people[.]” Id. at 99-100.

The purpose of the Local Industrial Development Authority Act, KRS

154.50-301 et seq., (emphasis added), is:

[T]o create local industrial development authorities to aid

in the acquisition, retention and development of land for

industrial and commercial purposes in Kentucky; to aid

in the development and promotion of industrial sites,

parks and subdivisions for accommodating industrial and

commercial needs; to promote and stimulate the

acquisition, retention and development of land for

industrial and commercial purposes in Kentucky by other

local development organizations both public and private.

See KRS 154.50-313.

The individual focus of each local industrial development authority

created under the auspices of this legislative scheme (such as KCDC) is limited to

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the region of the governmental units it serves. For example, local industrial

development authorities “aid” and “promote” the “acquisition” of land for

industrial and commercial purposes by making non-binding recommendations to

the governmental units they serve for those units to initiate condemnation

proceedings within those specific localities. See KRS 154.50-320(2).

Each local industrial development authority created under this

legislative scheme also provides nonessential assistance. To that point, KRS

154.50-301 et seq. “is permissive and not mandatory, and consequently,

[governmental units are] allowed to act independent of its provisions.” See

Dannheiser v. City of Henderson, 4 S.W.3d 542, 547 (Ky. 1999). As the plain

language of KRS 154.50-320 also indicates, the role of each local industrial

development authority is to aid, promote, and assist specific governmental units

with economic development, and to assist other entities that perform the same

function.30 This defeats the notion that the existence of KCDC or any other local

30

In full, KRS 154.50-320 provides:

(1) The purpose, duties, and powers of the authority shall be to:

(a) Acquire, retain, and develop land for industrial and commercial purposes in

Kentucky; aid in the development and promotion of industrial sites, parks, and

subdivisions to meet industrial and commercial needs in Kentucky.

(b) Encourage the acquisition, retention, and development of land for industrial

and commercial needs in Kentucky by other local development organizations,

both public and private.

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industrial development authority is “integral” or essential to any function of the

governmental units they serve. See Wilson, 612 S.W.3d at 925.

The individual local industrial development authorities also perform

purely local functions. To that point, the chief role of these entities is to aid and

(c) Cooperate with the United States Army Corps of Engineers and other federal

agencies in formulating development plans and in acquiring and developing

land for industrial and commercial purposes in accordance with these plans.

(d) Acquire by contract, lease, purchase, gift, condemnation, or otherwise any real

or personal property, or rights therein, necessary or suitable for establishing

industrial sites, parks, or subdivisions. The authority may dispose of any real

or personal property, or rights therein, which in the opinion of the authority

are no longer needed to carry out the purposes of KRS 154.50-301 to 154.50-

346. The authority may lease, sell, or convey any or all industrial sites, parks,

and subdivisions owned or optioned by it to any public or private

organization, governmental unit, or industry for the purpose of constructing

and/or operating any manufacturing, industrial, or commercial facility.

Provided, however, that no sale or conveyance of any land shall be made to a

private organization or industry without such organization or industry first

having executed a written contract with the authority providing that if no

actual construction of a manufacturing, industrial, or commercial facility, as

set forth in the executed contract, is commenced within ten (10) years, the

organization or industry shall offer to reconvey the land, free and clear of liens

and encumbrances, to the authority, and should the authority accept the offer

of reconveyance, it shall return to the organization or industry ninety-five

percent (95%) of the purchase price paid therefor.

(2) Upon the adoption by the authority of a resolution reciting that property is needed for

industrial sites, parks, and subdivisions and cannot be acquired by negotiation and

purchase at its fair market value, the governmental units in which such land is located

may direct and institute condemnation proceedings in the name of such governmental

units, for the use and benefit of the authority. The procedure for condemnation shall

conform to the procedure set out in the Eminent Domain Act of Kentucky. Upon

acquisition of the property, the governmental unit shall convey the property to the

authority upon payment by the authority to the governmental unit of an amount of money

equal to the judgment and costs paid by the governmental unit.

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promote the “development of land.” KRS 154.50-313. The “development of

land,” in turn, is defined in this context as:

[T]he improvement and provision of facilities essential to

the use of land for manufacturing, industrial, and

commercial purposes such as, but not limited to, core

drilling, grading, sewerage systems, water systems,

access roads, rail lines, electrical lines, layout planning,

and the construction and equipping of buildings.

KRS 154.50-310(3) (emphasis added).

The Kentucky Supreme Court has explained that sewerage and water

systems, while “no doubt critically important” within the localities they serve,

“simply do[] not perform an integral state function. Sewage disposal and storm

water management systems are not a traditional and necessary state function such

as those functions performed by the state police, our public schools, the corrections

system, and public highways and airways.” Coppage Constr. Co. v. Sanitation

Dist. No. 1, 459 S.W.3d 855, 864 (Ky. 2015). If those constituent features of “land

development” are not considered integral state functions, it would be absurd not to

treat the remaining features of “land development” (i.e., core drilling, grading,

access roads, rail lines, electrical lines, layout planning, and the construction and

equipping of buildings) the same way. All of those functions promote local

development that primarily benefits a specific locality’s businesses and residents,

which is “quintessentially the type of local concern that simply is not common to

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all citizens of the state.” N. Ky. Area Planning Comm’n v. Cloyd, 332 S.W.3d 91,

95-96 (Ky. App. 2010).

Notwithstanding, Bradshaw argues KCDC does perform integral state

functions because, in her view, the General Assembly said that it does. In that

vein, she cites the “declaration of public purpose” relative to KRS 154.50-301 et

seq., particularly those parts of it emphasized below:

The acquisition of any lands for the purpose of

developing industrial sites, parks and subdivisions is

hereby declared to be a public and governmental

function, exercised for a public purpose, and a matter of

public necessity, and such lands and other property,

easements and privileges acquired in the manner and for

the purposes enumerated in KRS 154.50-301 to 154.50-

346 shall and are hereby declared to be acquired and used

for public and governmental purposes and as a matter of

public necessity.

KRS 154.50-346 (emphasis added). Bradshaw’s argument is largely founded

upon the following quote from Bryant v. Louisville Metro Housing Authority, 568

S.W.3d 839, 849 (Ky. 2019):

“The enunciation of public policy is the domain of

the General Assembly.” Pyles v. Russell, 36 S.W.3d 365,

368 (Ky. 2000). Often, this Court must turn to the

legislative statement of public policy in making judicial

determinations. See generally Giuliani v. Guiler, 951

S.W.2d 318 (Ky. 1997). “[A]bsent a constitutional bar or

command to the contrary, the General Assembly’s

pronouncements of public policy are controlling on the

courts, as this Court has ruled countless times.” Murphy

v. Commonwealth, 500 S.W.3d 827, 832 (Ky. 2016)

(quoting Carter v. Bullitt Host, LLC, 471 S.W.3d 288,

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296 (Ky. 2015)). Although the question of whether an

entity is immune is a judicial question, the question of

whether a function is “integral” to the state can turn on

the question of public policy. The Commonwealth,

through its General Assembly, determines what

priorities, responsibilities, duties, and functions the state

chooses to undertake. Thus, the General Assembly, to a

certain extent, must have the legislative prerogative to

enunciate what is integral to the state’s function.

Granted, such a statement cannot be a broad, vague

declaration without proof in the actual record; otherwise,

the immunity doctrine would become a legislative whim

rather than a judicial determination. However, we

acknowledge, especially given the Commonwealth's

strong stance on the doctrine of separation of powers,

that the legislative statement of public policy informs the

judiciary’s decision of whether a function is essential, or

integral, to the administration of the Commonwealth.

(Footnotes omitted.)

With that said, Bradshaw’s argument is unpersuasive. Nothing in

Bryant contravenes the settled rule, stated previously, that the General Assembly

does not grant entities immunity, and that the common-law rule of immunity is

exclusively for the judiciary to define. Moreover, we are unwilling to assume the

General Assembly’s “declaration of public purpose” set forth above is at all

germane. That same statutory provision and its attendant declaration of public

purpose existed in 2001, when the Kentucky Supreme Court rendered Kea-Ham

Contracting, Inc. v. Floyd County Development Authority, 37 S.W.3d 703 (Ky.

2000), as modified on denial of reh’g (Mar. 22, 2001). That opinion resolved

whether another local industrial development authority created under the auspices

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of KRS 154.50-301 et seq. was entitled to governmental immunity. There, the

Kentucky Supreme Court noted – as we have noted here – that the “key factor” in

the governmental immunity analysis is “whether, when viewed as a whole, the

entity is carrying out a function integral to state government.” Id. at 706 (footnote

omitted). And in its final analysis, the Kentucky Supreme Court determined the

local industrial development authority created under the auspices of KRS 154.50-

301 et seq. was not entitled to governmental immunity.

Taken at face value, it appears Bradshaw is asserting that when the

Kentucky Supreme Court denied governmental immunity to the local industrial

development authority in Kea-Ham, the Kentucky Supreme Court was ignorant of

the “declaration of public purpose” set forth in KRS 154.50-346. But that is not an

assertion we can entertain. Our Supreme Court is presumptively aware of the law

at all times. Burton v. Foster Wheeler Corp., 72 S.W.3d 925, 930 (Ky. 2002). We

must accordingly presume it denied the local industrial development authority

governmental immunity despite that declaration of public purpose. And here, we

have no reason to do otherwise. KCDC is not entitled to governmental immunity.

It therefore cannot be considered an “employer” under the KWA. As such, the

circuit court properly dismissed Bradshaw’s KWA claim.

CONCLUSION

Considering the foregoing, we AFFIRM.

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ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Philip C. Lawson Erica K. Mack

Frankfort, Kentucky John K. Wood

Lexington, Kentucky

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