Cordia Complaint

COMMONWEALTH OF KENTUCKY
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FRANKLIN CIRCUIT COURT
CIVIL ACTION NO. 18-CI-______
DIVISION NO. ______
DONNA HURLEY, Individually and on

behalf of her minor children J.P. and B.P.,
and
TONYA MELTON, Individually and on

behalf of her minor daughter V.R.,
and
THE LOTTS CREEK

COMMUNITY SCHOOL, Inc. PLAINTIFFS
v.
COMPLAINT AND PETITION FOR
DECLARATORY RELIEF
STEPHEN L. PRUITT, in his official capacity as

Kentucky Commissioner of Education
Serve: Stephen Pruitt

300 Sower Boulevard, 5th Floor
Frankfort, Kentucky 40601
and
KENTUCKY DEPARTMENT OF EDUCATION
Serve: Andy Beshear, Attorney General

Office of the Attorney General
700 Capitol Avenue, Suite 118
Frankfort, Kentucky 40601-3449
KENTUCKY BOARD OF EDUCATION
Serve: Andy Beshear, Attorney General

and
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KNOTT COUNTY BOARD OF EDUCATION
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1156 Hindman Bypass
Hindman, Kentucky 41822
Serve: Randy Combs, Board Chair

1156 Hindman Bypass
Hindman, Kentucky 41822 DEFENDANTS
*********************************
INTRODUCTION
This action arises under the provisions of the Kentucky Declaratory Judgment Act, KRS
418.040 et seq. and the administrative appeals provisions of KRS 13B.140. Plaintiffs are seeking
a declaration of rights regarding whether the Kentucky Commissioner of Education has authority
under KRS 156.010, 156.148, 156.210 or 162.060, to: 1) impose remediation standards for health
and safety concerns; 2) unilaterally withdraw the approval of a valid lease entered into between
Knott County Board of Education and the Lotts Creek Community School, Inc. to operate Cordia
School on its property; or 3) reassign the attendance boundaries and relocate children to
alternative facilities in Knott County. This action also seeks a declaration by this Court
regarding the sufficiency of due process, under Kentucky law, and whether the Knott County
Board of Education’s vote to close the Cordia School on January 23, 2018 was a violation of due
process and lacked substantial evidence in the record to support such decision.
An actual controversy exists between the parties in that the Commissioner’s Letters dated
December 12, 2017 and January 17, 2018 are arbitrary, capricious, and in excess of his statutory
authority as Commissioner. In those letters, Mr. Pruitt makes certain claims regarding the safety
of the Cordia School building, summarily demanding the closure of the school without any due
process to determine whether any alleged safety issues have been alleviated or mitigated by
LCCS. Relying on those arbitrary allegations, the Knott County Board of Education held a
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special meeting and voted to close the Cordia School, depriving the Plaintiffs of an opportunity
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to be heard and present defenses regarding the safety of the buildings on campus. The actions
taken by Commissioner Pruitt and the Knott County Board of Education are arbitrary, capricious,
and otherwise inconsistent with Kentucky law.
PARTIES
1. Plaintiffs, Donna Hurley and Tonya Melton, are residents of Knott County and have
minor children who attend the Cordia School located in Knott County, Kentucky.
2. Plaintiff, The Lotts Creek Community School, Inc. (hereinafter “Lotts Creek” or
“LCCS”), is a non-profit corporation that owns a school building known as the Cordia School in
Knott County, Kentucky. Lotts Creek is one of the last remaining settlement schools still
operating in the rural parts of Kentucky. The Cordia School was founded to provide the children
of Lotts Creek with access to education. Today, the Cordia School = provides K-12 education to
230 students.
3. Defendant, Stephen L. Pruitt is the Kentucky Commissioner of Education, which is the
chief executive of the Department of Education (hereinafter “KDE”). The Commissioner’s
authority within the KDE is set forth in KRS 156.010. In general, the Commissioner is tasked
with “administering, structuring, and organizing the department and its services” which includes
monitoring the management of school districts and implementing state laws and policies. See
KRS 156.010. The Commissioner’s duties as chief state school officer are set forth in KRS
156.148 which states that he shall, “execute under the direction of the state board the educational
policies, orders, directive, and administrative functions of the [Kentucky Board of Education].”
See KRS 156.148(3). His powers as Chief State School Officer are set forth in KRS 156.210.
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4. Defendant, Kentucky Department of Education, operates under KRS Chapter 156.
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The Commissioner of Education is the chief executive of the Department of Education, who is
responsible for administering, structuring, and organizing the department and its services
pursuant to KRS 156.010.
5. Defendant, Kentucky Board of Education, operates pursuant to KRS Chapter 156 and
is made up of twelve members from across the Commonwealth. The Kentucky Board of
Education is tasked with appointing the Commissioner of Education who serves at the pleasure
of the Board. The Kentucky Board of Education’s main responsibilities include developing and
adopting regulations that govern public school districts and directing the Kentucky Department
of Education.
6. Defendant, Knott County Board of Education is a body politic and has duties
consistent with KRS 160.160. The Board has five members: Randy Combs, Dennis Jacobs,
Gladys Epperson, Patricia Miller, and David Messer. The Board is tasked with general control
and management of the public schools in Knott County. The Board also has certain investigatory
powers under KRS 160.300 including the power to conduct investigations within their authority
to summon witnesses by subpoena and hear testimony in matters of a quasi-judicial nature.
7. Defendant, Kim King, is Superintendent of the Knott County School District, whose
duties are set forth in KRS 160.350. Superintendent King is the executive officer of the School
District, pursuant to KRS 160.370, and is responsible for carrying out policies and regulations
enacted by the Knott County Board of Education. Superintendent King also serves as a
professional advisor to the Board and makes recommendations to the Board on administrative
matters.
JURISDICTION AND VENUE
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8. KRS 13B.140 vests this court with jurisdiction to hear an appeal of a final agency
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action. Pursuant to KRS 13B.010(6), a final order “means the whole or part of the final
disposition of an administrative hearing, whenever made effective by an agency head, whether
affirmative, negative, injunctive, declaratory, agreed, or imperative in form.” Under the Federal
administrative rules, “The core question is whether the agency has completed its decision-
making process, and whether the result of that process is one that will directly affect the parties.”
Franklin v. Massachusetts, 505 U.S. 788, 797 (1992). It is clear that the Commissioner has made
a final decision and students are not to occupy the Cordia School building after February 2, 2018,
and that district students will reassigned “on or before” February 2, 2018. See January 17, 2018
Letter. The Commissioner’s letter constitutes final agency action which is subject to judicial
review.
9. KRS 13B.140(2) requires that a petition for judicial review be filed after the party has
exhausted all administrative remedies available within the agency. Plaintiffs submit that the
Commissioner’s January 17, 2018 letter constitutes final agency action as he has directed that
that Knott County District students cannot be occupants in the Cordia School building on or after
February 2, 2018. The Commissioner has likewise demanded that the attendance boundaries of
the Cordia School be amended an its students reassigned among Knott County’s other schools.
10. Venue is appropriate in this Court pursuant to KRS 452.430 because this is an action
against the Kentucky Board of Education. KRS 452.430 states that, “An Action against the
Kentucky Board of Education, of this state, must be brought in the county that includes the seat
of government.” Franklin Circuit Court is the appropriate venue. Venue is also proper under
KRS 13B.140(1).
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11. KRS 418.040 vests this court with jurisdiction over an action by plaintiffs seeking a
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declaration of rights, “either alone or with other relief,” where an actual controversy exists, and
this Court “may make a binding declaration of rights, whether or not consequential relief is or
could be asked.
12. An actual controversy exists between the parties regarding: 1) the Commissioner’s
authority to unilaterally withdraw a lease that the Department has already approved between
LCCS and the Knott County Board of Education; 2) the Commissioner’s authority to reassign the
attendance boundaries of the Cordia School; 3) the responsibilities and duties of the Knott
County Board of Education to maintain and repair the inside of the Facility pursuant to Section
6.1 of the signed lease with LCCS and who which party was responsible for some of the repairs
cited by the Commissioner in his January letter; and 4) the Commissioner’s authority to unduly
influence the Knott County School Board to make a decision to close the Cordia School without
adequate due process or opportunity to be heard.
13. Declaratory relief is appropriate in this case under KRS Chapter 418 since the
requested declaration of rights will terminate the uncertainty and controversy that exists, and is
squarely within the remedial purpose of KRS 418.040 to 418.090 announced in KRS 418.080. A
declaration of rights would afford “relief from uncertainty and insecurity with respect to rights,
duties and relations” between Kentucky Department of Education, Commissioner Pruitt, and
Knott County Board of Education with the Plaintiffs.
FACTS
14. Lotts Creek Community School (“LCCS”) owns and operates one of the most unique
schools in the Commonwealth. The Cordia School was founded to provide the children of Lotts
Creek with access to adequate education. The school is one of the last remaining settlement
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schools in eastern Kentucky and is likely the most remote public school in the Commonwealth.
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Its campus is nestled in the foothills of the Appalachian Mountains. It serves an extremely close-
knit community isolated from the rest of Knott County and has a longstanding history of helping
disadvantaged students. The Cordia School is unique in that it houses many out-of-state and
international students in dormitories on the school’s campus.
15. Lotts Creek and the Defendant, Knott County Board of Education, have in place a
valid contractual agreement allowing the LCCS to operate the Cordia School, a public school in
Knott County, Kentucky, on property owned by LCCS.
16. A lease was executed by LCCS and Knott County Board of Education and went into
effect on July 1, 2016 and contained an option to extend for the 2017-2018 school year, which
the parties exercised. The contractual agreement indicates that it must have prior approval of the
Kentucky Department of Education (hereinafter “Department”) and that the parties agree to lease
the facility and operate a public school “during the 2016-2017 school year and beyond.” See
Lease Agreement, Exhibit 1.
17. The lease agreement, under Section 8.3, may only be changed or revised with written
consent of both parties and approved by the Department of Education. Section 2.1 of the lease
sets forth the requirements for terminating the lease. The agreement is to remain in effect for the
full term and “ending upon the Board of LCCS giving notice of termination pursuant to Section
6.2 hereof, or the expiration of termination of the New Facility Lease, whichever is earlier.”
Section 2.1 of Exhibit 1. Written notice must be given to terminate the lease at the end of the
school year.
18. LCCS had a premises liability insurance policy in place issued by Lloyd’s London &
International Insurance Company of Hannover SE (“Lloyd’s of London”). When construction
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defects in certain roof trusses were discovered in July of 2017 at the Cordia School, LCCS filed a
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claim with their insurer. The insurer then cancelled the policy on July 8, 2017 when LCCS filed
a Civil Action in Knott Circuit Court1 against Lloyds of London. The outcome of that case is
still pending judicial review.
19. The insurance adjuster, Engle Martin, then contacted LCCS on September 5, 2017 and
stated that Lloyd’s London “is not in a position to either accept or reject coverage for this loss.”
See Exhibit 2. Lloyd’s of London refused to pay the claim and then cancelled the insurance
policy. Given the current conditions of portions of the building, finding a new insurance policy
has been difficult to secure. The Commissioner, in his first letter dated December 12, 2017,
argued that state law “mandates property insurance on all public school buildings owned by local
boards of education.” See Exhibit 3. LCCS owns the buildings and leases them to Knott
County School Board, so KRS 160.105 and 702 KAR 3:030 do not apply. Nonetheless, LCCS is
still trying to secure a new policy for the buildings.
20. A brief timeline of events is helpful for context. In July of 2017, structural issues with
the roof of the auditorium were first discovered and contractors and engineers were brought in
immediately to inspect the roof. Lloyds of London refused to pay the claim for the roof and then
cancelled the insurance policy. In August, a structural engineer who was approved by the KDE
inspected the roof and the remedial structural changes made by LCCS to the roof trusses. All
repairs were approved by the engineer, and the school was to remain open as long as the
auditorium was not used.
21. In October, 2017, inspectors from the Office of Educational Accountability came to
the school to inspect the premises and noted problems with the building not being properly
1
Lotts Creek Community School v. Certain underwriters of Lloyds and London International
Insurance Company of Hanover, 17-CI-220 in Knott Circuit Court.
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cleaned. Under the terms of the lease, interior maintenance is the duty of the Knott County
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Board of Education. On December 11, 2017, an inspection was conducted for all fire sprinklers
and equipment at the school. See Exhibit 4. According to those inspection reports, there
appeared to be no issues with the fire system. Id. On December 15, 2017, the Knott County
Board Attorney contacted LCCS and instructed them to keep people out of the gym, to fix the
generator, and have a structural engineer inspect the auditorium again. The Public Protection
Cabinet’s Division of Fire Prevention also inspected the premises on December 18, 2017 and
noted problems with the fire alarm system, recommended the boiler in the basement be
inspected, replace ceiling tiles, maintain better housekeeping at second and third floor storage
areas, and remove combustibles from hallways, remove combustibles from exit, and remove
padlock from exit door. See Exhibit 5. LCCS made significant strides during winter break while
school was not in session to fulfill these requests including scheduling repairs to the generator,
and then securing the opinion of a structural engineer who inspected the premises and wrote on
December 29, 2017 that the “areas cordoned off from use should remain so, but the other areas
of the school may remain in use.” See Exhibit 6. LCCS was then given until January 26, 2018
to make suggested improvements. Based on information and belief, and despite those
assurances, letters were sent to parents of Cordia students informing them that the school would
be closing on January 15, 2018.
22. On January 17, 2018, the Commissioner notified Alice Whitaker, the Director of Lotts
Creek, that the school would be subject to closure on February 2, 2018 pursuant to KRS 156.010,
KRS 156.148, KRS 156.210 and KRS 162.060, as set forth in the correspondence attached to this
Complaint as Exhibit 7. The letter states, “After reviewing the findings of three (3) separate
inspections by KDE staff and the reports of the state fire marshal, health department and a
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certified engineer, it is clear that the continued occupancy of the leased Cordia School building
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threatens the safety and well-being of the students and staff.” Id.
23. The correspondence sent by the Commissioner indicated that the school would close
on February 2, 2018, that the approval of the lease between the Knott County School Board and
LCCS would be withdrawn, and that the students would be reassigned to other facilities within
the district at the discretion of the Knott County Board of Education and Superintendent Kim
King. Id.
24. The various concerns stated by the Department in the Commissioner’s letter have been
addressed by the school, namely the shoring up of the core roof structure. Currently, any
remaining safety hazards have been blocked off to both students and teachers to ensure their
safety. Bryan K. Johnson of Poage Engineers and Associates stated in his report that the areas
cordoned off should remain so, but the other areas of the school may remain in use. See Exhibit
6.
25. The Commissioner’s second letter to LCCS also cited the cancellation of a previously-
held insurance policy as “evidence of either: a) the inability of the LCCS to afford insurance
coverage; and/or b) the unwillingness of property and liability insurers to issue coverage on the
structurally damaged Cordia School building.” Exhibit 7, p.2.
26. Alice Whitaker of LCCS responded to Commissioner Pruitt’s January 17, 2018 letter
and addressed each concern. See Exhibit 8. She stated that LCCS had received an estimate for
enhanced shoring up of the auditorium, as recommended by the structural engineer, which could
be completed within two weeks. LCCS addressed the Commissioner’s concerns about providing
financial documents to cover the costs of the roof truss repairs. Plans have already been made to
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immediately install a generator and rectify any other of the repairs requested by the
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Commissioner.
27. The Knott County School Board called a special board meeting on January 23, 2018 to
decide whether to implement the allegations received from the Commissioner of Education in his
December 12, 2017 and January 17, 2018 letters regarding the safety conditions at Cordia
School. Commissioner Pruitt walked into the meeting and announced that he had already made
his decision regarding the safety of the Cordia School. Before the vote, Board attorney, Tim
Crawford, advised the Board that due to the Commissioner’s findings, they had no choice but to
close the school because the Commissioner had jurisdiction over the decision. The School Board
then voted 4-1 to accept the allegations of the Commissioner and opted to close the Cordia
School mid school year beginning February 2, 2018.
28. Plaintiffs were not afforded an opportunity to be heard at the January 23, 2018
meeting and address the concerns of the Commissioner or the Board. Plaintiffs were not given
notice of these allegations, nor an opportunity to correct any alleged issues at the LCCS campus.
Plaintiffs were not given adequate an opportunity to explain the ongoing litigation against
Lloyd’s of London and the potential to replace or repair any potential issues with the Cordia
School roof.
29. Plaintiffs allege that the unilateral action of the Defendants is without lawful authority
and that the closure of the school with 230 students causes irreparable harm and constitutes
arbitrary action as prohibited by the Section 2 of the Kentucky Constitution.
30. The Kentucky Constitution also allows that all Kentucky school aged children are
entitled to an education at a public school. Section 183 states that the General Assembly shall
provide for an “efficient system of common schools throughout the State.”
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31. Defendants’ actions violate Section 2 of the Kentucky Constitution and would
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unlawfully interfere and deny the students the educational opportunities at the Cordia School.
See the attached affidavits of Donna Hurley and V.R., Exhibits 9 and 10.
32. In the landmark case of Rose v. Council for Better Education, 790 S.W.2d 186, 60 Ed.
Law Rep. 1289. (1989), the Kentucky Supreme Court mandated that there was a fundamental
right of every child in the Commonwealth to an adequate education. The actions of the
Defendants in the instant action have violated the rights of the Plaintiffs in that the arbitrary and
abrupt closing of their public school will prevent the children of the Plaintiffs Hurley and Melton
to receive an education as described in their attached affidavits.
33. The Cordia School is located in what is likely the most geographically remote area of
this Commonwealth. The closing of the school would significantly interfere with the rights of the
children to receive an education in that they would be forced to take in many instances 30-60
minute bus rides on treacherous mountain roads. The two closest elementary schools in the
Knott County system are Carr Creek Elementary and Emmalena Elementary, which are ten miles
(21 minutes away) and fifteen miles (25 minutes away) respectively from Cordia. Knott Central
High School is twenty miles (34 minutes away) from Cordia.
34. Forcing students to enroll in new schools would cause irreparable harm, especially
given the additional transportation hardship, particularly during the winter months when students
in Knott County miss upwards of 20-30 days of school per year due to inclement weather and
dangerous road conditions.
35. Many of the special needs students at the Cordia School will be irreparably harmed by
having to integrate into new schools without any notice or preparation.
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36. The Cordia School serves a vital role in the local community beyond simply providing
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K-12 education. The school also operates an after-school program, houses a food pantry for 80-
100 local individuals, oversees housing repair and home building projects on nearby homes, and
houses a state-of-the-art fitness center that is available to the community free of charge.
37. It is possible, given the circumstances, that a portion of the 230 currently enrolled
students at the Cordia School will either drop out, be home schooled, or simply abandon their
educational opportunities.
38. The Plaintiffs further allege that the stated basis for the Commissioner’s
correspondence demanding closure of the Cordia School as set forth in the January 17, 2018
correspondence is factually incorrect on numerous fronts.
39. The Plaintiffs further state that they were notified that they had until January 26, 2018
to address the issues with the physical structure of the school and were in good faith seeking to
remedy any safety concerns the Commissioner had. Despite their assurances and proposed
deadline of January 26, 2018, Defendants then scheduled the special meeting of the Knott
County School Board on January 23, 2018, and without giving Plaintiffs the opportunity to be
heard, essentially presented the School Board with the Commissioner’s allegations that there was
no other option but to close the school.
40. LCCS has completed work in an effort to mitigate the Commissioner’s concerns in his
December 12, 2017 letter and allegations from the Commissioner’s January 17, 2018
correspondence are greatly exaggerated. Plaintiffs believe resolution of the Commissioner’s
issues could have been achieved with adequate notice and due process considerations.
41. Instead, the decision to close the Cordia School during the January 23, 2018 meeting
of the Knott County Board of Education was made after the Board heard testimony from the
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Commissioner of Education in an attempt to assert influence over the Board’s decision. No other
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witnesses were called by the Board.
42. Defendant Pruitt cites five Kentucky statutes in his correspondence which he claims
grants him authority to take action in this case. A review of the statutes indicates that no such
authority is given to justify the proposed action of closing the school and terminating the
contractual agreement between Lotts Creek and the Knott County School Board.
43. Furthermore, the Knott County Board of Education’s decision to close the Cordia
School was in violation of Plaintiffs’ due process rights and constitutes arbitrary action that is in
violation of Section 2 of the Kentucky Constitution.
44. The Plaintiffs ask that this matter be promptly assigned for a preliminary hearing so
that they can demonstrate that the factual basis for the proposed closing of the Cordia School
simply does not exist and that the actions of the Defendants will cause great irreparable harm
violating the constitutional rights of the children to receive an education and the rights to be free
of arbitrary action.
45. The Knott County Board of Education is named as an indispensable party in that they
have a contractual relationship with LCCS. The actions of the Commissioner also constitute an
impermissible interference with contract under the Kentucky Constitution. The actions of the
Commissioner at the January 23, 2018 Board meeting also unduly influenced the Board, while
the Plaintiffs were not given a reasonable opportunity to be heard and present evidence to the
contrary.
46. Plaintiffs seek a temporary restraining order to prevent the closing of the school and
prevent the severing of the contractual relationship between the Knott County Board of
Education and LCCS.
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CAUSES OF ACTION
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COUNT 1: THE BOARD’S DECISION TO CLOSE CORDIA SCHOOL VIOLATES
PLAINTIFFS’ DUE PROCESS RIGHTS AND WAS ARBITRARY AND CONSTITUTES
AN ABUSE OF DISCRETION
47. Plaintiffs incorporate by reference Numerical Paragraphs 1-46 as if fully set forth
below.
48. The Knott County Board of Education’s decision on January 23, 2018 to close the
Cordia School violates Plaintiffs’ due process rights as they were not given an opportunity to be
heard and were unable to present any evidence to contradict the Commissioner’s testimony at the
hearing. The Board’s unilateral decision was arbitrary and constitutes an abuse of discretion
because it was made with imperfect information regarding the condition of the buildings on the
LCCS campus and the safety of the Cordia School’s students.
49. Unlike in Coppage v. Ohio County Bd. of Educ., 860 S.W.2d 779 (Ky. 1992), where
the Court held that school boards have the power and authority to close schools within a local
system and upheld the decision to close the schools, this case is distinguishable because the
Board in Coppage made the decision to close based on appropriate consideration of factors such
as “the costs of renovating the school or building a new high school... the dwindling student
population in that area, [and] the inability to offer a full curriculum.” Id. at 784. In Coppage,
“[t]he record reveals that the board considered the primary concerns addressed by KRS
157.420(6) in its discussions and final decision regarding closing the school.” Coppage at 784.
However, the Knott County Board relied solely on the Commissioner’s allegations and on the
advice of counsel that the Commissioner had jurisdiction in these matters, for closing the Cordia
School. No such factual determinations were made because the Board failed to consider the
various reports of certified professionals.
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50. Therefore, the standard articulated in American Beauty Homes Corp. v. Louisville and
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Jefferson Co. Planning and Zoning Comm’n, 379 S.W.2d 450 (1964) prevails and the prohibition
against arbitrary and capricious agency action should be upheld. The Board’s decision to shut
down Cordia School affected the rights of Plaintiffs, who were not given an adequate
opportunity to be heard, the decision was therefore not supported by substantial evidence and
should be voided.
51. In fact, Butler v. United Cerebral Palsy of Northern Ky., Inc., 352 S.W.2d 203, 208
(Ky. 1961) held that the legislature could delegate certain tasks to local agencies and boards if
there are procedural safeguards in place, or an opportunity for judicial review, to protect against
“unfairness, arbitrariness, and favoritism.” Id. Judicial review of the Knott County School
Board’s arbitrary decision to close the Cordia School is the only path forward.
52. Plaintiffs were denied the opportunity to present defenses to the allegation that the
school was unsafe for its students and staff. Plaintiffs were in possession of a December 29,
2017 certified engineer’s report by Bryan K. Johnson, P.E. which opined, “that areas cordoned
off from use should remain so, but the other areas of the school may remain in use.” See Exhibit
6. LCCS was also in the process of securing a contractor to shore up the remaining issues
addressed by Mr. Johnson, and had ordered a new generator to be installed immediately, and was
attempting to alleviate any of the remaining concerns expressed by the Commissioner in his
letter, and believed they had until January 26, 2018 to make the necessary repairs.
53. Section 2 of the Kentucky Constitution denies the use of “absolute and arbitrary power
over the lives, liberty and property of freemen...”
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54. Commissioner violated the Plaintiffs’ rights to due process as guaranteed by the
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Kentucky Constitution. No hearing was held, there was no opportunity to be heard, nor present
defenses and cross examine witnesses.
55. Commissioner has the authority under KRS 156.210(2) to administer oaths and
examine witnesses “in any matter pertaining to the public schools.” He may also “compel
attendance of witnesses before him and compel witnesses to testify in any investigation he is
authorized to make.” No such testimony was heard, and no such investigation was made by the
Commissioner under his statutory authority.
56. Plaintiffs were denied the opportunity to present defenses to the allegation that the
school was unsafe for its students and staff. Plaintiffs were in possession of a December 29,
2017 certified engineer’s report by Bryan K. Johnson, P.E. which opined, “that areas cordoned
off from use should remain so, but the other areas of the school may remain in use.” See Exhibit
6. LCCS was also in the process of securing a contractor to shore up the remaining issues
addressed by Mr. Johnson, and had ordered a new generator to be installed immediately, and was
attempting to alleviate any of the remaining concerns expressed by the Commissioner in his
letter, and believed they had until January 26, 2018 to make the necessary repairs.
57. Defendants’ actions are arbitrary and capricious, not in accordance with the law, and
caused injuries to the Respondents. The decision to close the Cordia School and transfer students
must be set aside and voided.
COUNT 2: DEFENDANTS’ ACTIONS ARE ARBITRARY AND CAPRICIOUS AND

WERE IN EXCESS OF STATUTORY AUTHORITY
below.
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59. The actions of the Knott County School Board are arbitrary and capricious and the
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Commissioner acted in excess of its statutory authority.
60. The Commissioner’s Letter dated January 17, 2018 states that under his authority as
Commissioner of Education and chief state school officer, he is withdrawing the approval of the
lease between the Cordia School and the Knott County Board of Education on February 2, 2018.
The correspondence also states that, “On or before February 2, 2018, the Knott County Board of
Education and Superintendent King shall take all action necessary to reassign the attendance
boundaries of Cordia School to other schools within the district and/or... establish a plan for the
use of approved alternative facilities...”
61. The Commissioner has no such authority to withdraw its support of a valid lease
between Knott County Board of Education and LCSS, in which the Commission nor the
Department is a party. KRS 160.160 requires the approval of the Department of Education
before any school board may lease a building or public facility. The Department has already
approved the lease between the parties. The Commissioner does not have the authority to
unilaterally withdraw such approval in the middle of the lease’s term.
62. The Commissioner has no express or implied authority to act under KRS 156.010 or
156.148 to close a public school and order the Knott County Board of Education to reassign
attendance boundaries for the Cordia School. Only the Board of Education has the authority
under KRS 160.290 to manage all public-school property.
63. The Knott County Board of Education met on January 23, 2018, and after only hearing
evidence presented by the Commissioner, arbitrarily voted to close the Cordia School. Plaintiffs
allege that the Commissioner tainted the proceedings by unfairly characterizing the extent of the
damage to the Cordia campus. An inspection of the premises by Bryan Johnson, Professional
18
Engineer from Poage Engineering, on December 29, 2017 found that “areas cordoned off from
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000019 of 000107

use should remain so, but the other areas of the school may remain in use.” See Exhibit 6.
64. To the extent that anyone has the authority to close the Cordia School, it would be the
State Fire Marshal. He has reviewed the building and declined to take any such action.
65. While the Knott County Board of Education has the authority to close and consolidate
schools within its district, it is clear they arrived at the decision to close Cordia without hearing
evidence from the Plaintiffs to rebut the presumption that the continued occupancy of the Cordia
School was unsafe for students and staff. The Board was also operating under the advice of
board counsel which improperly advised the board that the Commissioner had jurisdiction over
these matters and that the board had no choice but to close the school. This is an abuse of power
by the Commissioner in an attempt to assert influence and authority over the school board and
usurp its powers.
must be set aside and voided
COUNT 3: DEFENDANTS’ DID NOT BASE THEIR DECISION ON SUBSTANTIAL

EVIDENCE
below.
68. Respondents’ decision violates KRS 13B.150(c) as it lacks substantial evidence on the
whole record.
69. The Knott County School Board did not hear arguments from the Plaintiffs during the
January 23, 2018 special meeting, thus the record is devoid of substantial evidence to support its
decision. Plaintiffs did not have an opportunity to rebut the presumptions made in the
19
Commissioner’s letter, nor were they afforded the opportunity to present valid defenses to the
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000020 of 000107

allegations.
70. Instead, the Knott County Board of Education acted to close the Cordia School
without first developing a full and complete record of events and chose to base their decision
solely on the Commissioner’s testimony and the board counsel’s advice that they had no choice
but to close the school. Their decision to close Cordia was not based on substantial evidence and
therefore must be vacated.
COUNT 4: DEFENDANTS’ ACTIONS VIOLATE ROSE V. COUNCIL FOR

BETTER EDUCATION
below.
73. In Rose v. Council for Better Education, 790 S.W.2d 186 (Ky. 1989) the Kentucky
Supreme Court mandated that there was a fundamental right of every child in the
Commonwealth to an adequate education and that it was the legislature’s duty to provide an
efficient system of common schools. Public schools must be adequately funded by the
legislature, must be free to all, must be available to all children, must be substantially uniform
throughout the state, must provide equal educational opportunity throughout the state, among
other things. Id. at 212, 213.
74. Defendants’ actions violate the standard for public education set forth in Rose v.
Council for Better Education, as students in this remote location will have to undergo major
hardships to be able to attend other schools in Knott County.
20
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000021 of 000107

COUNT 5: DEFENDANTS’ ACTIONS VIOLATE KY. CONST. § 3 EQUAL

PROTECTION CLAUSE
below.
77. Section 3 of the Kentucky Constitution is the equal protection clause and states that all
men, are equal and that “no grant of exclusive, separate public emoluments or privileges shall be
made to any man or set of men.”
78. Defendants violated Section 3 when they unilaterally ordered the Cordia School to
close, even though it is safe for its students, and failed to take similar action on other schools in
the Commonwealth that are in worse condition.
COUNT 6: THE BOARD’S DECISION TO CLOSE CORDIA SCHOOL RESULTS IN A

BREACH OF CONTRACT
below.
81. A valid lease was executed by LCCS and Knott County Board of Education and went
into effect on July 1, 2016 and contained an option to extend for the 2017-2018 school year. The
lease was approved by the Kentucky Department of Education and that the parties agree to lease
21
the facility and operate a public school “during the 2016-2017 school year and beyond.” See
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000022 of 000107

Lease Agreement, Exhibit 1.
82. The lease agreement, under Section 8.3, may only be changed or revised with written
consent of both parties and approved by the Department of Education. The lease is valid
pursuant to KRS 162.140. Section 2.1 of the lease sets forth the requirements for terminating the
lease. The agreement is to remain in effect for the full term and “ending upon the Board of
LCCS giving notice of termination pursuant to Section 6.2 hereof, or the expiration of
termination of the New Facility Lease, whichever is earlier.” Section 2.1 of Exhibit 1.
83. Defendant, Knott County School Board, breached the contract when they voted on
January 23, 2018 to break the lease with LCCS and shut down the Cordia School, without valid
notice under the lease’s provisions.
84. Plaintiffs have been injured and will continue to suffer injuries as the result of the
Defendants’ breach, as described herein.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court:
1. Accept jurisdiction over this declaration of rights;
2. Docket the accompanying Motion for Temporary Restraining Order for hearing;
3. Issue a restraining order and/or preliminary injunction preventing the closure of
Cordia School and the reassignment of the attendance boundaries of the Cordia
School;
4. Issue a restraining order and/or preliminary injunction preventing the transfer of
staff and students to other schools, or any alternative location;
22
5. Issue a restraining order and/or preliminary injunction to enforce the valid lease
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000023 of 000107

between the Knott County Board of Education and LCCS;
6. Make a declaration under KRS 418 that the Plaintiffs rights under the Kentucky
Constitution have been violated and that the Commissioner’s December 12, 2017
and January 17, 2018 letters are null and void and are in excess of his statutory
authority; that the Commissioner is exceeding his statutory authority by
threatening to reassign the attendance boundaries of the Cordia School; that it is
the responsibility and duty of the Knott County Board of Education to maintain
and repair the inside of the Facility pursuant to Section 6.1 of the signed lease
with LCCS; that the Commissioner’s authority to unduly influence the Knott
County School Board to make a decision to close the Cordia School without
adequate due process or opportunity to be heard was arbitrary and capricious and
constitutes an abuse of discretion;
7. Issue an eventual permanent injunction preventing the Knott County School
Board from shutting down the Cordia School without adequate due process;
8. Hold a trial by jury;
9. Allow Plaintiffs to recover the costs of the action, including attorneys’ fees; and
10. Grant such other relief as the Court deems just and proper.
23
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000024 of 000107
Respectfully submitted,
/s/ Clay Barkley

Clay A. Barkley
KBA # 93636
Randal A. Strobo
KBA # 92767
STROBO BARKLEY PLLC
239 South Fifth Street
Suite 917
Louisville, Kentucky 40202
cbarkley@strobobarkley.com
rstrobo@strobobarkley.com
Co-Counsel for Petitioners
Ned Pillersdorf
KBA # 54930
Pillersdorf, DeRossett, and Lane
124 West Court Street
Prestonsburg, KY 41653
(606) 886-6090
(606) 886-6148 (fax)
pillersn@bellsouth.net
Co-Counsel for Plaintiffs
24
Exhibit 1
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000025 of 000107

B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000026 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000027 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000028 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000029 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000030 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000031 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000032 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000033 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000034 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000035 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000036 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000037 of 000107
Exhibit 2
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000038 of 000107

B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000039 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000040 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000041 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000042 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000043 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000044 of 000107
Exhibit 3
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000045 of 000107

Matthew G. Bevin Hal Heiner
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000046 of 000107

Governor Secretary
Education and
Workforce Development Cabinet
Stephen t, Pruitt, Ph.D.
Commissioner of Education

300 Sower Boulevatd • Frankfort. Kentucky 40601
Phone: (502) 564-3141 • www.educatlon.ky.gov
December 12, 2017 VIA EMAIL AND U.S. MAIL
Ms. Alice Whitaker

Lotts Creek Community School, Inc.
5837 Lotts Creek Road
Hazard, KY 41701
Superintendent Kim King

Knott County Schools
1156 Hindman Bypass
Hindman, KY 41822
Mr. Randy Combs, Board Chair

Knott County Board of Education
166 Beulah Lane
Hindman, KY 41822
RE: Conditions at the Cordia School .
Dear Ms. Whitaker, Superintendent King, and Mr. Combs:
I am writing to you to express my concerns regarding health and safety conditions that exist at
the Cordia School campus in Lotts Creek, Kentucky. As you know, the Cordia School is
operated as a K-12 public school by the Knott County Board of Education. The school facilities
are owned by the Lotts Creek Community School, Inc. (LeCS) and leased to the Knott County
Board of Education.
On November 21. 2017. counsel for the Kentucky Department of Education (KDE) was notified
by the Office of Education Accountability (OEA) that after an onsite visit by OEA to investigate
a complaint, serious health and safety conditions were present on the Cordia campus, particularly
the facility that houses the kindergarten through grade 12 classrooms and cafeteria/auditorium.
On November 27. 2017, I deployed KDE staff to the Cordia campus to conduct a health and
safety inspection. The staff included a licensed architect and a KDE staff member responsible for
safety coordination at the Kentucky School for the Deaf, Kentucky School for the Blind, and the
53 state-operated area technology centers throughout the state. On December I, 2017, I again
KentuckyUnbridledSpirlt.com An Equal Opportunity Employer M/F/D

Conditions at the Cordia School
December 12, 2017
Page 2 of 5
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000047 of 000107

sent KDE staff to the Cordia campus to join officials from the State Fire Marshal's Office for
additional inspections. Officials from the Department for Public Health conducted additional
inspections on December 4, 2017.
I am greatly concerned by the information that has been reported to me by KDE staff, OEA and
other state agencies regarding conditions on the Cordia campus that threatens the health and
safety of the students and staff at this school. The issues affecting the health and safety of those
occupying the premises of the Cordia School that have been reported to me can be categorized as
follows:
1. Structural damage/pending collapse of roof of central administrative

arealcafeterialauditoriumlcommon hallway between grade levels (areas appear to be
currently not in use by students/staff but could threaten integrity of entire building's
roofing system). The structural failure has also adversely affected the HVAC system,
interior finishes, lighting and other building systems in proximity to this area;
2. Temporary "shoring" of roof area of central administrative
arealcafeterialauditoriumlcommon hallway exists without documentation of sufficiency
and soundness by a structural engineer;
3. Major structural failure of masonry wall/foundation of school gymnasium building
(building presumed closed but evidence exists of current use);
4. Failure of fire alarm system of school gymnasium building (building presumed closed but
evidence exists of current use);
5. Numerous other safety issues documented by KDE staff inspections on November 27th
and December lst andlor the Fire Marshal's Report(s) which include, but are not limited
to, the lack of warm water in restrooms; at least two (2) urinals not functioning;
inadequate water pressure; electrical safety violations; excessive occupancy loads of
certain rooms; reduced egress to certain exits; emergency lighting/exit signs not
illuminated; numerous fire extinguishers dated 1998 without replacement, maintenance or
inspections logs; fire alarm malfunction in the elementary wing of the school building;
flammable items located in electrical closet; no documentation of the required
semiannual inspection on the range hood in kitchen area; boiler not inspected since 2013;
leak in the roof of the family resource center with fecal matter located above the drop
ceiling in the cooking area and mold on the adjacent gypsum board; and the fire access
plate outside the building has been fastened and prevents access in an emergency; and
6. Numerous additional health and safety issues related to food service documented by the
December 4, 2017 report of the Department for Public Health.
It is my understanding that the current lease between the Knott County Board of Education and
LeCS required an inspection of the facility to be completed by a certified structural engineer to
determine whether structural repairs were required and an accompanying written report
addressing the inspection findings. To date, KDE has not received a copy of this report as
required by the current lease. However, KDE obtained an email dated July 27,2017 from Envista
Forensics which indicated that Mr. Brent Jones with Envista Forensics inspected the premises on
July 25,2017 on behalf of "the insurance carrier." Mr. Jones stated as follows in his email report:
December 12, 2017
Page 3 of5
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000048 of 000107

Please note that the central administrative section and cafeteria/auditorium are not
safe to be occupied due to structural damage that could led [sic] to sudden
collapse. At the time of inspection, [ informed Mrs. Alice Whitaker that the
building was unsafe to be occupied. Additionally, it was recommended that the
building owner shore the evident damaged trusses to mitigate the risk of collapse
of the auditorium roof which could led [sic] to a progressive collapse of the
surrounding roof system.
Recent inspection of the site revealed temporary "shoring" is in place in the area of the roof truss
failure(s). It is not clear whether the shoring was installed under the guidance and direction of a
certified structural engineer. There is no evidence of any remediation of the structural failure of
the masonry wall in the school gymnasium.
Pursuant to my authority as commissioner of education and chief stale school officer under KRS
156.0 I0, 156.148, 156.210 and KRS 162.060, the following actions must occur immediately:
1. Prohibition by the school district of any school activity, school event or school athletic
team practice, at any time before, during or after school hours, in the Cordia school
gymnasium until the structural deficiencies and safety issues are remedied in that
building. Those remedies must be confirmed and approved in writing by KDE staff and
the Kentucky Fire Marshal before occupancy or use by any student, staff member, team
or group of the Cordia School. The landlord and the landlord's agents shall not at any
time have the authority to direct, permit, or encourage the use of facilities by school
classes, students, teams or groups in contradiction of this paragraph or the authority of
school or school district officials;
2. Pursuant to the terms of the lease, the building owner shall cause a full inspection of the
Cordia school premises (including the school gymnasium) by a certified engineer and to
determine the complete list of structural repairs that must be made to the facilities for full
use by the district of those facilities. In addition, the engineers report shall provide any
additional temporary actions that are required to stabiJize the roof structure and ensure
that the compromised structure will not fail, including evaluation of the temporary
"shoring" that has been installed. The selection of the certified engineer shall be approved
by KDE. The report shall be delivered to the Knott County Superintendent, the Knott
County Board of Education and the Commissioner of Education on or before January 1,
2018;
3. Continuation of the prohibition of access by students and staff to the
cafeteria/auditorium/common hallway in the Cordia school building and the school
gymnasium until such time as the structural deficiencies are permanently remedied per
the directions of the certified structural engineer described in paragraph #2 above;
4. Remediation by the school district of all health and safety concerns, under the control of
the district, outlined in this letter and in the attached reports on or before January 1, 2018,
or earlier if the state agency with jurisdiction has instituted an earlier deadline. (It is my
December 12, 2017
Page 4 of5
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000049 of 000107

understanding that the school district has already made efforts over the past week to
remedy many of these issues); and
5. Remediation by the landlord of all health and safety concerns, under the control of the
landlord, outlined in this letter and in the attached reports on or before January 1,2018 or
earlier if the stale agency with jurisdiction has instituted an earlier deadline.
If the conditions above, including the installation by the landowner of the prescribed temporary
structural repairs required in paragraph #2 above, are not satisfied by January 1,2018, the
previous approval by the KDE of the current lease between the parties will be withdrawn and the
Knott County Schools will ensure that the students assigned to the Cordia School are placed in
other schools within the district on or before January 15, 2018. If the district desires to continue
or renew operations of the Cordia School on the premises of the LCCS for the 2018-2019 school
year, a new one (I) year lease shall be created and tendered to the KDE for approval no later than
April 1.2018. Future approval by the KDE of any lease between the parties will be contingent
upon future inspections of the premises and any other relevant factors to ensure the health and
safety of the students and staff of the Cordia School. KDE will not approve a lease of the Cordia
school premises for the 2018-2019 school year if permanent structural repairs to the school
building and gymnasium and repairs to all affected building systems (HVAC, interior finishes,
electrical, etc) are not performed by June I, 2018.
I am also aware that historically the LeCS houses high school students that originate from out of
state on or around the premises of the Cordia School campus. It is my understanding that these
"dormitories" are part of the campus that is presumed to be outside of the lease between LCCS
and the Knott Board of Education. While the living conditions and arrangements of the
dormitories appear to be outside of my authority as commissioner of education and chief state
school officer, I am no less concerned for the welfare of students that may be living in conditions
similar to those described in this letter and the in the attached reports. If my concern is valid and
the dormitories are in a state of disrepair similar to the school premises. I implore the Lecs to
remedy those conditions immediately. Reports to KDE of any condition affecting the health and
safety of Cordia School students, on or off the leased premises. will be reported to appropriate
state agencies, including the Department for Community Based Services, Division of Protection
and Permanency.
I know that all parties involved desire the best for the students of the Cordia School and the
community of Lotts Creek. I am also aware of the important history and original mission of the
LCCS. However. neither the mission of LCeS nor the mission of the Knott County Board of
Education will be served if our students and staff are subject to conditions that are not conducive
to learning and that threaten their health and safety.
December 12, 2017
Page 5 of5
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000050 of 000107

Questions concerning this correspondence may be directed to Kevin C. Brown, Associate
Commissioner and General Counsel, kevin.brown@education.ky.gov or 502-564-4474.
Ilk-
Step en L. Pruitt, Ph.D.
Commissioner of Education
Attachments
Cc: Members of the Knott County Board of Education

Hon. Tim Crawford, Counsel to Knott County BOE
David Broderick, Division of Housing, Building and Construction (Fire Marshal)
Freddie Grigsby, Kentucky River District Health Department
David Wickersham, Director, Office of Education Accountability
Members of the Kentucky Board of Education
Robin Kinney. KDE Associate Commissioner
Kevin C. Brown, KDE Associate Commissioner and General Counsel
Exhibit 4
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000051 of 000107

B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000052 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000053 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000054 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000055 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000056 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000057 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000058 of 000107
Exhibit 5
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000059 of 000107

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B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000061 of 000107

Exhibit 6
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000062 of 000107

POAGE ENGINEERS & ASSOCIATES, INC.
880 SPARTA COURT, SUITE 200
LEXINGTON, KENTUCKY 40504
PHONE: (859) 255-9034
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000063 of 000107

FAX: (859) 252-3130
December 29, 2017
Ms. Alice Whitaker

Lotts Creek Community School
Hazard, Kentucky 41701
Re: Building Review - Phase I

Cordia School
Hazard, KY 41701
Dear Ms. Whitaker:
The existing framing for the above referenced building has been reviewed by this office. The
inspection involved visual observation of the exposed framing and discussions of the building
history. My analysis is based upon design values provided by industry standard material
specifications. No tests were performed to determine the actual load-carrying capacity of any
structural element.
The existing drawings for the one story school, produced by B. Daniel Roll, Architect (dated June
29, 1996) were reviewed. The building consists of an Elementary Classroom wing, a High School
Classroom wing, and a Central/Core area. The roof consists of asphalt shingles over e” plywood
deck supported by 2x wood trusses @ 2'-0" o.c. The roof trusses are supported by reinforced 8"
c.m.u. walls, with 12" c.m.u. walls at each end of the two classroom wings. The load-bearing walls
rest atop concrete stem walls over concrete spread footings.
The much older Gymnasium was reviewed, as well, but not the adjacent original High School. There
were no drawings available for the gym. You indicated that it remains closed and currently not in
use. The roof appears to consist of nonballasted EPDM over 1½” metal roof deck supported by long
span open-web steel joists. The walls appeared to consist of unreinforced c.m.u., but the width of
the block varied in many locations. The load-bearing walls rest atop an unreinforced (or lightly
reinforced) concrete footing that varied in width and depth.
The following represents a Phase I review intended to identify all structural concerns. Each area of
the two buildings will be identified separately. The last paragraph of each section will discuss the
necessary repairs in general terms, with the assumption that the larger structural concerns will have
a more detailed repair plan (drawings) provided in Phase II.
Elementary Classroom Wing:

The gable roof did not appear to have deflected anywhere between the two end walls. There were
a few cracks in the ceiling drywall that appear to result from minor movements in the building
Ms. Whitaker
December 29, 2017
Page Two
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000064 of 000107

elements and are not indicative of a larger issue. The roof trusses appear to be satisfactory, but there
were at least three trusses that had a 2x4 sistered over a broken web. Those appeared to have been
repairs affected during the original construction. There were several vertical cracks where the
interior masonry wall abutted the exterior walls. The majority of those should be caulked and
allowed to move. There were, however, two areas of concern identified at the far right end of the
building.
At the right end wall, there is water infiltration at Door 001 and Door 002. The primary framing
elements do not appear to be damaged, but the doors have severe rust. In addition, at Door 002,
there is a small area of the concrete slab that has settled slightly.
1. Wood truss repairs. º Check and add screws as required.

2. Water infiltration at right end wall. º Repair flashing and repoint brick.
3. Rusted doors. º Repair or replace.
4. Door 002 slab settlement. º Monitor for further settlement.
High School Classroom Wing:

The gable roof did not appear to have deflected anywhere between the two end walls. There were
a few cracks in the ceiling drywall that appear to result from minor movements in the building
elements and are not indicative of a larger issue. The roof trusses appear to be satisfactory. There
were several vertical cracks where the interior masonry wall abutted the exterior walls. The majority
of those should be caulked and allowed to move.
At the left end wall, there is water infiltration at the left rear corner of Classroom 94. There were
older diagonal cracks in the block that had been filled with caulk and painted. The primary framing
elements do not appear to be damaged, but the wall shows water damage and the steel lintel in front
of (not above) Door142 has some rust. There are also vertical cracks near the top of the parapet that
appear to indicate foundation settlement at the left front corner of the end wall.
5. Water infiltration at right end wall. º Repair flashing and repoint brick.
6. Foundation settlement. º Install foundation underpinning piers beneath left end wall.
Central/Core Area:
The hipped roof had dropped significantly over Multi-Purpose 36. All of the trusses over that area
have failed. The webs had pulled out of the press plate panel connection, with several members split
or torn. Many of the roof trusses have significant lateral deflection in the webs, with members
bowed significantly out of plane. There were some 1x4 braces installed that appeared to be
according to the manufacturer’s recommendations. Some may be missing, however. Regardless,
the roof framing over Multi-Purpose 36 cannot be salvaged and must be replaced. That includes the
Stage area, as well. There were at least two trusses that had been modified during the original
construction, but most likely not designed or approved by the manufacturer.
There is temporary shoring in Multi-Purpose 36 beneath the existing failed roof trusses. That
Ms. Whitaker
December 29, 2017
Page Three
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000065 of 000107

framing, however, should be supplemented according to the attached TEMPORARY SHORING
LAYOUT. The span of the existing beams should be cut in half by new posts installed similar to
the existing. The left and right walls have horizontal cracks at approximately 10'-0" above the slab
where the double 8" c.m.u. wall stops and the single multi-purpose wall extends up to 18'-0". As the
roof trusses have deflected, they have pushed against the supporting walls.
There are some bracing and connector members shown in the drawings that were not installed. This
occurred all over the Central/Core area. There are many truss tags indicating permanent bracing, but
none were installed. At some locations, three tags were present, but only two bracing members were
installed. In many locations, the bracing connected to a few trusses, but did not extend to something
rigid, so all of those trusses bowed together. In many locations, neither the primary truss, nor the
piggy-back truss atop was adequately braced; so, the vertical webs bowed. All of the trusses for this
area must be further evaluated after the original design documents from the truss manufacturer have
been reviewed.
There were several vertical cracks where the interior masonry wall abutted the exterior walls. The
majority of those should be caulked and allowed to move. There are a few areas with diagonal
cracks indicating slight foundation settlement. Those near Staff Lounge 27 and Corridor 71 may
likely be repaired and monitored. There were several cracks, however, along the front wall at the
bell tower that indicate a greater degree of foundation settlement. The slab along that wall has
dropped slightly, as well. There is a crack in the slab of separating Reading Area 59 with Library
58 indicating the same.
7. Wood truss repairs. º Check all field repairs and add screws as required.
8. Web bracing. º Add bracing and extend to rigid elements as required.
9. Permanent truss bracing. º Add diagonal bracing to all areas as required.
10. Multi-Purpose 36 roof trusses. º Replace and add connectors as required.
11. Temporary shoring. º Add structural elements shown.
12. Front wall settlement. º Install foundation underpinning piers beneath the front wall.
Gymnasium:
There are several vertical and diagonal cracks in the exterior walls near the corners of the rear wall.
There are several vertical cracks in the basement walls and several separation gaps between the floor
slab and walls. All of the cracks observed indicate significant foundation settlement along the rear
wall. In addition, there are at least two cracks in the earth near the left rear corner that indicate slope
stability failure. As the earth drops and slides down the hill, the stress in the foundation increases
to failure. There is a large shear crack in the foundation at the left rear corner. The footing there
appeared to be 16" wide and 4'-0" deep, but no rebar stubs were observed.
13. Cracked masonry walls. º Reinforce and repair smaller cracks; rebuild wall at larger
cracks.
14. Rear wall settlement. º Install foundation underpinning piers beneath the rear wall.
15. Slope stability. º Install retaining wall or H-Pile soil shoring.
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000066 of 000107
Exhibit 7
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000067 of 000107

B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000068 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000069 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000070 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000071 of 000107
Exhibit 8
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000072 of 000107

B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000073 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000074 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000075 of 000107
Exhibit 9
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000076 of 000107

B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000077 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000078 of 000107
Exhibit 10
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000079 of 000107

B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000080 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000081 of 000107
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000082 of 000107

DIVISION NO. ______

behalf of her minor daughter V.R., and
THE LOTTS CREEK COMMUNITY SCHOOL, INC. PETITIONERS
v. MOTION FOR A RESTRAINING ORDER,

TEMPORARY INJUNCTION, AND STAY

Kentucky Commissioner of Education, KENTUCKY
DEPARTMENT OF EDUCATION, KENTUCKY
BOARD OF EDUCATION, and KNOTT COUNTY
BOARD OF EDUCATION RESPONDENTS
Come now Petitioners, by and through counsel and pursuant to CR 65.03 and CR
65.04, hereby move this Court for injunctive relief against Stephen L. Pruitt (“Pruitt”), the
Kentucky Department of Education (“KDE”), the Kentucky Board of Education (“KBE”),
and the Knott County Board of Education (“Knott County BE”), to enjoin them from
closing Cordia School, transferring Cordia’s students to another school, and re-drawing
Cordia School’s district boundaries without any due process.
This action arises under KRS 13B and the provisions of the Kentucky Declaratory
Judgment Act, KRS 418.040 et seq., seeking a declaration of rights between the Petitioners
and Respondents regarding the sufficiency of due process and whether the Knott County
Board of Education’s vote to close the Cordia School on January 23, 2018 lacked
substantial evidence in the record to support such decision. The violation of the Petitioners’
1
constitutional rights will cause immediate, irreparable injury. Thus, Petitioners are
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000083 of 000107

respectfully requesting this Court grant a restraining order, temporary injunction, and stay
to maintain the status quo while this case is fully adjudicated. A Memorandum in support
has been filed with this Motion.
WHEREFORE, Petitioners MOVE this Court to grant a restraining order,
temporary injunction, and stay to maintain the status quo by preventing the Respondents
from closing the Cordia School and preventing the transfer of students during the pendency
of this case.
/s/ Clay Barkley

Clay A. Barkley
KBA # 93636
Randal A. Strobo
KBA # 92767
STROBO BARKLEY PLLC
Suite 917
Ned Pillersdorf
KBA # 54930
(606) 886-6090
(606) 886-6148 (fax)
2
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000084 of 000107
CERTIFICATE OF SERVICE
The undersigned certifies that copies of the foregoing by U.S. Mail on this the 26th day of
January, 2018:
Kevin C. Brown, Associate Commissioner

General Counsel
Stephen Pruitt
Andy Beshear, Attorney General

Randy Combs, Board Chair

Knott County Board of Education
1156 Hindman Bypass
/s/ Clay Barkley____________

Counsel Having Certified
3
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000085 of 000107

DIVISION NO. ______

THE LOTTS CREEK COMMUNITY
SCHOOL, INC. PLAINTIFFS
v. RESTRAINING ORDER

BOARD OF EDUCATION, KNOTT COUNTY
BOARD OF EDUCATION, DEFENDANTS
Upon Motion of the Plaintiffs herein, and the Court being otherwise sufficiently
advised, It is HEREBY ORDERED:
1. Plaintiffs are entitled to injunctive relief. CR 65.01 provides:
A party may obtain injunctive relief in the circuit court by

(a) restraining order, (b) temporary injunction, or (c)
permanent injunction in a final judgment. A restraining
order shall only restrict the doing of an act. An injunction
may restrict or mandatorily direct the doing of an act.
Injunctive relief shall not be granted in any action in the
district court except as specifically authorized by statute.
The Court finds that Plaintiffs will suffer immediate irreparable harm if, during
the pendency of this litigation, Stephen L. Pruitt (“Pruitt”), the Kentucky Department of
Education (“KDE”), the Kentucky Board of Education (“KBE”), and the Knott County
1
Board of Education (“Knott County BE”) close the Cordia School and force its 230
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000086 of 000107

students to transfer to alternate schools in Knott County.
2. The Court hereby issues and directs this Restraining Order against Stephen
Pruitt, the KDE, the KBE, and the Knott County BE, allowing the Cordia School to
remain open and its students to remain at the Cordia School, until such time as the Parties
and their counsel can be heard on Plaintiffs’ Motion for Temporary Injunction, while this
Court considers Plaintiffs’ claims against Stephen Pruitt, the KDE, the KBE, and the
Knott County BE.
3. The parties, through their respective counsel, are directed to appear for
hearing on the Motion for Temporary Injunction on , 2018,
at the hour of .
4. Pursuant to CR 65.05, and it appearing that Defendants cannot be
anticipated to suffer any pecuniary harm from the issuance of the Restraining Order, and
that the Restraining Order is in the public interest, Plaintiff is Ordered to post a bond with
the Clerk of the Franklin Circuit Court in the amount of One Dollar ($1.00).
ENTERED:
Judge, Franklin Circuit Court
2
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000087 of 000107

DIVISION NO. ______

THE LOTTS CREEK COMMUNITY
SCHOOL, INC. MOVANTS
v. MEMORANDUM IN SUPPORT OF MOTION

FOR A RESTRAINING ORDER, TEMPORARY INJUNCTION, AND STAY

BOARD OF EDUCATION, and KNOTT COUNTY
BOARD OF EDUCATION RESPONDENTS
Come now Movants, by and through counsel and pursuant to CR 65.03 and CR
65.04, and hereby move this Court for injunctive relief against Stephen L. Pruitt (“Pruitt”),
the Kentucky Department of Education (“KDE”), the Kentucky Board of Education
(“KBE”), and the Knott County Board of Education (“Knott County BE”), to enjoin them
from closing Cordia School and transferring Cordia’s students to an alternate school. The
Respondents’ actions have caused and continue to cause irreparable harm to the Movants.
In support of this Motion, Movants state as follows:
STATEMENT OF FACTS
Lotts Creek Community School (“LCCS”) owns and operates one of the most
unique schools in the Commonwealth. The Cordia School was founded to provide the
children of Lotts Creek with access to adequate education. The school is one of the last
remaining settlement schools in eastern Kentucky and serves a relatively remote
1
community isolated from the rest of Knott County. The campus is nestled in the foothills
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000088 of 000107

of the Appalachian Mountains and is one of the most remote public schools in the
Commonwealth. The Cordia School also houses many out-of-state and international
students in dormitories on the school’s campus. The Cordia School also serves a vital role
in the local community beyond providing K-12 education. The school operates an after-
school program, houses a food pantry for 80-100 local individuals, oversees housing repair
and home building projects on nearby homes, and houses a state-of-the-art fitness center
that is available to the community free of charge.
Knott County Board of Education has contracted with LCCS to operate Cordia
School, a public school in Knott County, Kentucky. The lease was executed by LCCS and
the Knott County Board of Education on July 1, 2016. The contract contains an option to
extend the agreement through the 2017-2018 school year. The option was exercised by
both parties. The agreement states the agreement must have prior approval of the KDE,
and that the parties agree to lease the facility and operate a public school “during the 2016-
2017 school year and beyond.” See Lease Agreement; Complaint, Exhibit 1. KRS 160.160
also requires approval of the lease by the KDE. However, neither Kentucky law nor the
lease grants the Commissioner the power to revoke approval of the lease mid-school year.
The lease agreement may only be changed or revised with written consent of both
parties and approved by the Department of Education. Id., Section 8.3. The lease is also to
remain in effect for the full term and “ending upon the Board of LCCS giving notice of
termination pursuant to Section 6.2 hereof, or the expiration of termination of the New
Facility Lease, whichever is earlier.” Id., Section 2.1.
2
In July 2017, structural issues with the roof of the auditorium were first discovered.
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000089 of 000107

LCCS immediately retained contractors and engineers to inspect the roof and filed a claim
with their insurer, Lloyd’s of London & International Insurance Company of Hannover SE.
However, Lloyd’s of London denied the claim. LCCS then filed a Civil Action in Knott
Circuit Court 1 against Lloyds of London for, among other things, bad faith. That case is
currently pending.
In August 2017, a structural engineer – who was approved by the KDE – inspected
the roof and LCCS’s roof stabilization efforts. All repairs were approved, and the school
was to remain open as long as the auditorium was not used.
The insurer’s adjuster, Engle Martin, contacted LCCS on September 5, 2017, and
stated Lloyd’s of London “is not in a position to either accept or reject coverage for this
loss.” See Complaint, Exhibit 2. Lloyd’s of London then cancelled the insurance policy.
Given the current condition of specific sections of the building, a new insurance policy has
been difficult to secure. However, LCCS is working diligently and in good faith to secure
a new policy.
In October, inspectors from the Office of Educational Accountability came to the
school to inspect the premises and noted problems with the building not being properly
cleaned. Under the terms of the lease, interior maintenance is the duty of the Knott County
Board of Education. On December 11, 2017, Cordia’s fire system was inspected and it
appears Cordia was not cited for any violations. See Complaint Exhibit 4.
1
Lotts Creek Community School v. Certain underwriters of Lloyds and London
International Insurance Company of Hanover, 17-CI-220 in Knott Circuit Court.
3
On December 15, 2017, the Knott County Board Attorney contacted LCCS and
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000090 of 000107

instructed them to keep students and employees out of the gym, to fix the generator, and to
have a structural engineer inspect the auditorium again. Public Protection Cabinet,
Department of Housing, Buildings and Construction, via the State Fire Marshal, then
inspected the premises on December 18, 2017 and noted problems with the fire alarm
system, recommended the boiler in the basement be inspected, replace ceiling tiles,
maintain better housekeeping at second and third floor storage areas, requested the removal
combustibles from hallways and from an exit, and requested removal of a padlock from
exit door. See Complaint Exhibit 5. That inspection did not result in any demand that the
school be closed. LCCS scheduled repairs to the generator and secured the opinion of a
structural engineer who wrote on December 29, 2017 that the “areas cordoned off from use
should remain so, but the other areas of the school may remain in use.” See Complaint,
Exhibit 6. LCCS was then given until January 26, 2018 to make suggested improvements.
Despite those assurances, on January 15, 2018, letters were sent to parents of Cordia
students informing them that the school would be closing.
On January 17, 2018, the Respondent Pruitt, in his capacity as the Commissioner
of the KDE, notified Alice Whitaker, the Director of Lotts Creek, that the school would be
subject to closure on February 2, 2018 pursuant to KRS 156.010, KRS 156.148, KRS
156.210 and KRS 162.060. See January 17, 2018 Letter; Complaint, Exhibit 7. The letter
sent by the Pruitt stated the school would close on February 2, 2018, the approval of the
lease between the Knott County BE and LCCS would be withdrawn, and the students
would be reassigned to other facilities within the district at the discretion of the Knott
County BE and Superintendent Kim King because “it is clear that the continued occupancy
4
of the leased Cordia School building threatens the safety and well-being of the students
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000091 of 000107

and staff.” Id. at 3. Pruitt also claims state law “mandates property insurance on all public
school buildings owned by local boards of education.” 2 See Complaint Exhibit 7.
However, LCCS owns the buildings and leases them to Knott County School Board. Thus
KRS 160.105 and 702 KAR 3:030 do not apply.
Alice Whitaker of LCCS addressed and corrected each of the concerns outlined by
Pruitt’s January 17, 2018, letter. See Complaint, Exhibit 8. She stated that LCCS has
received an estimate for the stabilizing the auditorium, as recommended by the structural
engineer, which could be completed within two weeks. She addressed the Commissioner’s
concerns about providing financial documents to cover the costs of the replacement
shoring, confirmed plans have already been made to immediately install a generator,
confirmed the loss of HVAC in the office and administration portions of the building could
be rectified by the use of 2-3 space heaters, explained the single pile of mouse droppings
observed is an interior maintenance issue and is the responsibility of the Knott County
Board of Education under the terms of the lease agreement, and explained that LCCS was
unaware of the Knott County Board of Education’s refusal to pay the alarm company its
annual fee for the alert system. Id.
Despite these assurances, the Knott County Board of Education called a special
board meeting on January 23, 2018 to decide whether to take action on the allegations
received from Pruitt in his December 12, 2017 and January 17, 2018 letters regarding the
safety conditions at Cordia School. At the beginning of the meeting, Pruitt announced he
2
Also, as noted above, LCCS is making diligent and good faith efforts to secure a new
insurance policy for the school.
5
had already made his decision regarding the allegations. Before the vote, School Board
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000092 of 000107

attorney, Tim Crawford, advised the Board that due to the Commissioner’s findings, they
had no choice but to close the school because the Commissioner had jurisdiction over the
decision. 3 The School Board then voted 4-1 to accept the allegations of Pruitt as true, and
opted to close the Cordia School on February 2, 2018 in the middle of the school year.
Plaintiffs were not afforded an opportunity to be heard at the January 23, 2018
meeting and address the concerns of Pruitt or the Knott County BE. Plaintiffs were not
given notice of these allegations, were not given an opportunity to call or cross examine
witnesses, and were otherwise not afforded the due process the Kentucky Constitution
requires during an administrative adjudication. LCCS has taken all necessary steps to
correct the structural defects, of which many were not the fault of LCCS, and took all
adequate and necessary steps to ensure the safety and comfort of its students, teachers, and
staff while the defects were being corrected.
The Cordia School is located in one of the most geographically remote areas in
Kentucky. The closing of the school would substantially interfere with the rights of the
children to receive an education by forcing them to take 30-60 minute bus rides on
treacherous mountain roads in order to attend school. The two closest elementary schools
in the Knott County system are Carr Creek Elementary and Emmalena Elementary, which
are ten miles (21 minutes away) and fifteen miles (25 minutes away) respectively from
Cordia, while Knott Central High School is twenty miles (34 minutes away) from Cordia.
3
The local school board has control over closing and consolidating schools. See Coppage
v. Ohio County Bd. of Educ. by and through Likins, 860 S.W.2d 779 (Ky. 1992).
6
As a result of the proposed closure of the Cordia School mid-school year,
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000093 of 000107

Respondents are requiring the LCCS to transfer all 230 students to other schools. However,
instead of transferring, some students have stated they will drop out of school and abandon
their educational opportunities. The many out-of-state and international students in
dormitories on the school’s campus will now be forced to seek an education elsewhere.
The drastic and arbitrary measures by Pruitt and the Knott County BE are
unwarranted, unnecessary, and unlawful. LCCS was in the process of taking the necessary
steps to ensure the students safety and comfort while the structural defects are corrected in
order to remedy any safety concerns the Commissioner outlined in his January letter. LCCS
believed they had until January 26, 2018 to make such changes. Instead, the Defendants
called a special meeting, and without giving the Plaintiffs an opportunity to be heard,
presented the facts in a light most favorable to the Defendants, and voted to close Cordia
School. In order to preserve the status quo by prohibiting the Respondents from closing the
Cordia School and forcing the transfer of 230 students to other school locations, Petitioners
now seek this restraining order, temporary injunction, and stay.
ARGUMENT
I. MOVANTS ARE ENTITLED TO INJUNCTIVE RELIEF.
CR 65.03(1) and CR 65.04(1) authorize a restraining order and temporary
injunction when it has been shown that the movant’s rights are being or will be violated by
an adverse party and the movant will suffer immediate and irreparable injury, loss, or
damage pending a final judgment in the action, or the acts of the adverse party will tend to
render such final judgment ineffectual. Kentucky courts have interpreted this rule and case
law to mean a party seeking injunctive relief must demonstrate: (1) the probability of
7
immediate and irreparable loss, damage, or violation of a concrete personal right which
B78FC5B2-6521-4667-99A2-8B88D6E2E051 : 000094 of 000107

will not be fully remedied by a favorable final judgment; (2) the equities favor injunctive
relief; and (3) there is a substantial question as to the merits. Maupin v. Stansbury, 575
S.W.2d 695, 699 (Ky. App. 1978); Carbon Co. v. Ramsey, 350 S.W.2d 454 (Ky. 1971);
Commonwealth et rel. Cowan v. Wilkinson, 828 S.W.2d 610, 612-613 (Ky. 1992); 7
William O. Bertelsman & Kurt A. Philipps, Kentucky Practice 451 (4th ed. 1984).
Movants can meet all three of the Maupin requirements. A restraining order and
temporary injunction is requested to enjoin the Respondents from closing the Cordia
School and transferring Cordia students to other schools. Granting injunctive relief will
maintain the status quo, preventing irreparable injury to the Movants. Furthermore, if
injunctive relief is denied, Movants will be denied meaningful judicial review of the
Respondents’ action. The Cordia School is currently being closed, and Movants are also
currently being forced to transfer to alternate schools. The resulting irreparable harm to the
Movants is immediate and ongoing.
A. MOVANTS ARE BEING IRREPARABLY HARMED, WHICH CANNOT BE FULLY

REMEDIED BY A FAVORABLE FINAL JUDGMENT WITHOUT INJUNCTIVE
RELIEF.
An “irreparable injury” is an injury for which no adequate remedy exists at law.
Wallace v. Jackson, 3 S.W.2d 766, 767 (1928). Even where an action for damages is
available, however, an injury is irreparable where “for reasons beyond his control, the
complainant cannot avail himself of it . . .” Friedburg, Inc. v. McClay, 191 S.W. 300, 302
(1917). “[W]here the danger is probable and threatened, the party may invoke the aid of
equity to prevent it and need not delay his application for injunction until the injury has
actually been inflicted. If the injury is certainly impending, certainly to be expected, that is
8
enough.” Horky v. Kentucky Utilities Co., 336 S.W.2d 588 (Ky. 1960). “The element of
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‘immediacy’ contemplates that the parties show an urgent necessity for relief.
The deprivation, or threat of deprivation, of a constitutional right is sufficient,
standing alone, to constitute irreparable injury. “When an alleged deprivation of a
constitutional right is involved, most courts hold that no further showing of irreparable
injury is necessary.” Knopf v. Wheeler, 2006 U.S. Dist. LEXIS 9965 (W.D. Ky. Mar. 10,
2006) citing Wright, Miller Krane, Federal Practice and Procedure, Vol. 11A, § 2948.1.
See also Elrod v. Burns, 427 U.S. 347, 373-74 (1976); Wesselman v. Ashley, 899 F.2d 1223
(6th Cir. 1990); ACLU v. Pulaski County, 96 F. Supp. 2d 691 (E.D. Ky. 2000). Because
Movants have alleged that the actions of Respondents were arbitrary and capricious in
violation of Movants’ constitutional rights, it is likely Movants will suffer irreparable
injury if injunctive relief is not granted.
The Respondents were denied due process. Section 2 of the Kentucky Constitution
denies the use of “absolute and arbitrary power over the lives, liberty and property of
freemen.” Movants were denied the opportunity to present defenses to the allegation that
the school was unsafe for its students and staff. Plaintiffs were in possession of a December
29, 2017 certified engineer’s report by Bryan K. Johnson, P.E. which opined, “that areas
cordoned off from use should remain so, but the other areas of the school may remain in
use.” See Complaint, Exhibit 6. LCCS was also in the process of securing a contractor to
shore up the remaining issues addressed by Mr. Johnson, and had ordered a new generator
to be installed immediately, and was attempting to alleviate any of the remaining concerns
expressed by the Commissioner in his letter, and believed they had until January 26, 2018
to make the necessary repairs.
9
In addition, they will suffer irreparable harm by being forced to transfer schools,
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especially in the middle of the school year. Students will be forced to drive an additional
30-60 minutes to attend other schools in Knott County, will have to enroll in other schools
that may not provide the same curriculum or educational opportunities found at the Cordia
School, some students may simply choose to drop out of school, some students may be
deprived of extracurricular activities provided solely by the Cordia School, resulting in
disruption to the lives of parents and children alike. The many out-of-state and international
students in dormitories on the school’s campus will now be forced to seek an educate
elsewhere.
There is no monetary amount that could satisfy the injured Petitioners. If the Cordia
School is forced to close, and the Petitioners are forced to transfer during the pendency of
this lawsuit, the damage suffered could be irreversible, rendering Movants’ right to appeal
meaningless.
B. MOVANTS CAN PRESENT A SUBSTANTIAL QUESTION ON THE MERITS.
Maupin requires the movant to present a serious or substantial question warranting
a trial on the merits. Maupin at 699. See also Commonwealth v. Wilkinson, 828 S.W.2d
610, 612 (Ky. 1992), overruled on other grounds by Com. ex rel. Conway v. Thompson,
300 S.W.3d 152 (Ky. 2009), (“[A] substantial claim to a personal right must be alleged in
order for a movant to be entitled to a temporary injunction.”] Although there is a substantial
probability that Movants will succeed on the merits, that is not what Maupin requires.
Maupin only requires that there be a substantial question on the merits. The actual overall
merits of the case are not to be addressed. Maupin at 699. There are several substantial
10
questions on the merits of this case, all aimed to prevent irreparable injury to Movants and
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its members.
1. THE RESPONDENTS HAVE VIOLATED MOVANTS’ DUE PROCESS

RIGHTS UNDER KENTUCKY LAW, ACTED OUTSIDE OF THEIR
AUTHORITY, AND DID NOT BASE THEIR DECISION ON SUBSTANTIAL
EVIDENCE.
In reviewing a decision of an administrative agency, the reviewing court must
determine whether: (1) the action was in excess of powers granted to the agency; (2)
whether there was a lack of procedural due process; and (3) whether there was substantial
evidence to support the agency's decision. American Beauty Homes Corp. v. Louisville and
Jefferson County Planning and Zoning Commission, 379 S.W.2d 450, 456 (Ky. App.
1964). Otherwise, the action of the agency is arbitrary within the prohibition of § 2 of the
Kentucky Constitution. American Beauty at 456. This case is of an adjudicatory nature, as
the LCCS and Cordia School was singled out by the action taken by Pruitt and the Knott
County Board of Education, and the decision to close the school was punitive and directed
to one specific party. Movants can present several substantial questions on the merits with
regards to the Respondents’ ultra vires actions, their failure to afford due process, and the
failure to render a decision based on substantial evidence.
i. THE RESPONDENTS ACTED OUTSIDE OF ITS AUTHORITY AND

FAILED TO AFFORD DUE PROCESS TO MOVANTS.
Pruitt’s Letter dated January 17, 2018 claims under his authority as commissioner
of education and chief state school officer, he is withdrawing the approval of the lease
between the Cordia School and the Knott County Board of Education on February 2, 2018.
See Complaint Exhibit 7. The letter also states, “On or before February 2, 2018, the Knott
County Board of Education and Superintendent King shall take all action necessary to
11
reassign the attendance boundaries of Cordia School to other schools within the district
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and/or... establish a plan for the use of approved alternative facilities...” Id. The
Commissioner has no such authority to withdraw its support of a valid lease between Knott
County Board of Education and LCCS, in which the Commission nor the Department is a
party. KRS 160.160 requires the approval of the KDE before any school board may lease
a building or public facility. The KDE has already approved the lease between the parties.
The Commissioner does not have the authority to unilaterally withdraw such approval in
the middle of the lease’s term.
The Commissioner also has no express authority to act under KRS 156.010 or
156.148 to essentially close a public school and order the Knott County BE to reassign
district boundaries for the Cordia School. Only the Knott County Board of Education has
the authority under KRS 160.290 to manage all public-school property. While the Knott
County BE has the authority to close and consolidate schools within its district, 4 they
arrived at the decision to close Cordia without affording LCCS any due process rights to
rebut evidence, call or cross examine witnesses, or present evidence that the continued
occupancy of the Cordia School was safe for students and staff. The Knott County BE was
also operating under the advice of board counsel which improperly advised that the
Commissioner had jurisdiction over these matters and that the Knott County BE had no
choice but to close the school. This is an abuse of power by the Commissioner to assert
4
See Coppage v. Ohio County Bd. of Educ., 860 S.W.2d 779 (Ky. 1992) (School board
has the authority to close and consolidate schools within its district). This case differs
from Coppage in that the board is not consolidating schools for the same reasons, the
board’s decision directly impacts one party - the Cordia School, and the action taken is
punitive in nature. Thus, because the decision was based solely on the safety of its
students and staff, and the Plaintiffs were not given an opportunity to rebut that
presumption, LCCS was denied due process and the decision was arbitrary.
12
influence and authority over the school board and usurp its powers. Respondents acted
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outside of their statutory authority.
ii. THE RESPONDENTS DID NOT BASE ITS DECISION ON

SUBSTANTIAL EVIDENCE.
There is no record by which Pruitt and the Knott County BE based its decision to
close the school and force students to transfer. If there is no record, there is no substantial
evidence. Even if there was substantial evidence, that evidence was not provided to the
Movants, and the Movants did not have a chance to respond to that evidence at the school
board hearing. Furthermore, Movants were not given the opportunity to call witnesses, nor
were they given the opportunity to cross examine witnesses. Thus, the decision to close the
school was not based on substantial evidence and was, therefore, arbitrary.
2. RESPONDENTS’ ACTIONS VIOLATES THE CONSTITUTIONAL RIGHT OF

EQUAL PROTECTION.
Section 3 of the Kentucky Constitution states all men are equal and that “no grant
of exclusive, separate public emoluments or privileges shall be made to any man or set of
men.” Respondents violated Section 3 when they unilaterally ordered the Cordia School
to close, even though it is safe for its students, by forcing Cordia School students to transfer
to alternate schools, and by failing to treat Cordia students equally to all other non-Cordia
School Knott County students. By treating the Cordia students unequally, Respondents
have violated Movants’ constitutional right to equal protection.
3. BREACH OF CONTRACT
LCCS and the Knott County Board of Education executed a lease on July 1, 2016,
which contained an option to extend the lease through the 2017-2018 school year. The
lease was approved by the KDE. The parties also agreed to lease the facility and operate a
13
public school “during the 2016-2017 school year and beyond.” See Lease Agreement,
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Complaint Exhibit 1.
The lease, under Section 8.3, may only be changed or revised with written consent
of both parties and approved by the KDE. The lease also complies with KRS 162.140.
Section 2.1 of the lease sets forth the requirements for terminating the lease. The lease is
to remain in effect for the full term and “ending upon the Board of LCCS giving notice of
termination pursuant to Section 6.2 hereof, or the expiration of termination of the New
Facility Lease, whichever is earlier.” Complaint, Exhibit 1 at Section 2.1. The Knott
County Board of Education voted on January 23, 2018 to unilaterally cancel the lease and
shut down the Cordia School without valid notice under the lease’s provisions. This
constitutes breach of contract causing injury to the Movants.
Based on the foregoing, Movants can present several substantial questions on the
merits, all of which warrant injunctive relief.
C. THE EQUITIES FAVOR INJUNCTIVE RELIEF.
Against the immediate and irreparable harm that Movants will suffer, the Court
must weigh any commensurate harm to the Respondents’ legitimate interests. Maupin, 575
S.W.2d at 699. This “balance of harm” weighs in favor of issuing the requested injunctive
relief. Courts must also disregard any alleged hardship to a defendant whose actions “were
done with full knowledge of the plaintiff’s rights and with an understanding of the
consequences which might ensue . . .” Wilson Concrete Co. v. County of Sarpy, 202
N.W.2d 597, 599 (Neb. 1972), accord: ABC Trans-National Transport, Inc. v Aeronautics
Forwarders, Inc., 379 N.E.2d 1228, 1239 (Ill. App. 1978); Kentucky Electric Development
Company’s Receiver v. Wells, 75 S.W.2d 1008, 1095 (Ky. 1934).
14
Movants are being irreparably harmed by the Respondents’ actions to close the
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Cordia School and force the transfer of 230 students in violation of their constitutional
rights. This is compounded by the circumstances surrounding the movants’ situation. As
stated above, Cordia School is uniquely situated to provide adequate educational
opportunities for the 230 students that attend the school. Not only does the school provide
an education to students in a geographically isolated community, it also serves a vital role
in the local community. The school operates an after-school program, houses a food pantry
for 80-100 local individuals, oversees housing repair and home building projects on nearby
homes, and houses a state-of-the-art fitness center that is available to the community free
of charge. Closing the school not only impacts the 230 students, it impacts the entire
community.
Upholding protections afforded by the Kentucky Constitution is of the utmost
importance to the stability and security of the Commonwealth. Ensuring those
constitutional protections and preventing irreparable harm to the Movants and community
far outweighs any harm suffered by the Respondents. Any harm to the Respondents
resulting from an injunction to allow the Movants to continue attending Cordia School
pales in comparison to the potential injury to the Movants.
D. THE REQUIREMENT FOR AN INJUNCTION BOND SHOULD BE

WAIVED OR THE BOND BE FIXED AT A NOMINAL SUM SINCE
THE MOVANTS SEEK TO ADVANCE THE PUBLIC’S INTEREST
AND TO PRESERVE THIS COURT’S ABILITY TO FASHION
MEANINGFUL RELIEF AMONG THE PARTIES BY MAINTAINING
THE STATUS QUO.
A waiver of the injunction bond provided for under Kentucky Rule of Civil
Procedure 65.05 should be granted in this case to protect the ability of the Court to render
meaningful relief in the event that Movant is successful in this action.
15
CR 65.05 provides in relevant part that:
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(1) No . . . temporary injunction shall be granted except
upon the giving of a bond by the applicant, with surety,
in such sum as the court deems proper, for the payment
of such costs and damages as may be incurred or
suffered by any person who is found to have been
wrongfully restrained or enjoined. (Emphasis added).
Kentucky Courts have waived the requirement for an injunction bond where it
“deems proper.” See Kentuckians v. U.S. Army Corps of Eng'rs, 2013 U.S. Dist. LEXIS
133339 (W.D. Ky. Sept. 18, 2013) (Holding that because “the [bond] exception is designed
to facilitate private enforcement of public rights,” no bond is required.) Similarly, in
Kentucky, the Russell Circuit Court waived bond for an injunction on the operation of a
rendering facility that was brought by surrounding residents in the public interest. See
Robertson, et al. v. A&S Proteins, et al., Temporary Injunction, Case No. 14-CI-00138
(Russell Cir. Ct., Ky., entered April 17, 2014).
However, the Kentucky Court of Appeals and Kentucky Supreme Court have not
addressed the issue. In the absence of published Kentucky case law, it is appropriate for
this Court to look to the federal rules, especially in cases where the corresponding rule is
closely related. See United Automobile, Aerospace & Agric. Implement Workers of Am. v.
Intl. Harvester Co., 597 S.W.2d 157 (Ky. App. 1980). In this case, CR 65.05(1) tracks the
language of Federal Rule of Civil Procedure 65(c), providing in substantively identical
terms that:
No . . . preliminary injunction shall issue except upon the

giving of security by the applicant, in such sum as the court
deems proper, for the payment of such costs and damages as
may be incurred or suffered by any party who is found to
have been wrongfully enjoined or restrained.
16
Both the Federal and corresponding Kentucky rule grant the Court significant
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discretion in setting the amount of the bond, providing only that the bond amount shall be
in the amount that “the court deems proper.” The Sixth Circuit Court of Appeals and other
federal courts have interpreted this language to empower the court to require either a
nominal bond or to waive the bond requirement entirely where the movant seeks to
vindicate a public interest. 5
As the Court explained in Urbain v. Knapp Brothers. Mfg. Co., 217 F.2d 810, 815
(6th Cir. 1954):
The rule leaves it to the District Judge to order the giving of

security in such sum as the court considers proper. This
would indicate plainly that the matter of requiring security
in each case rests in the discretion of the District Judge.
Thus, Rule 65(c)(3) of the Federal Rules of Civil Procedure affords the Court “wide
discretion in the matter of requiring security.” National Resources Defense Council v.
Morton, 337 F. Supp. 167, 168 (D.D.C. 1971). Litigation such as this case - where the
movants seek to uphold the Kentucky Constitution, prevent the unreasonable and arbitrary
closing of a school, and prevent the forced transfer of 230 students - is precisely the type
of case it would be appropriate for a court to dispense with a bond or to set a nominal bond.
Moltan Co. v. Eagle-Picher, 55 F.3d 1171, 1176 (6th Cir. 1995). Moreover, the bond
should also be waived or set at a nominal amount due to the substantial likelihood that the
movants will prevail on the underlying question.
5
Other jurisdictions have recognized that where the movant seeks to vindicate important
rights or “public interests” that no injunction bond or a nominal bond is appropriate. See,
for example, Bartels v. Biernat, 405 F. Supp. 1012, 1019 (E.D. Wis. 1975); Bass v.
Richardson, 338 F. Supp. 478, 491 (S.D. N.Y. 1971); Natural Resources Defense Council
v. Morton, 337 F. Supp. 167, 168-69 (D. D.C. 1971) and the cases cited in that decision.
17
Even if the Court finds that the Respondents have a claim for additional costs as a
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result of an injunction, the Court should deny the request for a bond. The Court “has
discretion to dispense with the security requirement, or to request mere nominal security,
where requiring security would effectively deny access to judicial review.” People of State
of Cal. ex rel. Van De Kamp v. Tahoe Reg'l Planning Agency, 766 F.2d 1319, 1325,
amended, 775 F.2d 998 (9th Cir. 1985).
Movants are students and a school that have no capacity to pay a bond. Movants
seek to enforce the requirements of the Kentucky Constitution and prevent irreparable harm
to the school and students. Ordering Movants to post a bond would frustrate its efforts to
protect the public.
II. THE COURT SHOULD GRANT A STAY.
This Court has the inherent power to give legal effect to the orders of the Court.
This power includes the power to stay an administrative decision pending review, to ensure
that the review is meaningful. The court in Green Valley Environmental Corp. v. Clarence
Clay, et al., 798 S.W.2d 141 (Ky. 1990), recognized the “inherent power” of a court to stay
an agency decision as a matter of judicial discretion and in the interest of administrative
and judicial economy. The court noted that the issuance of a stay by a reviewing court is
distinct from the power of that court to grant injunctive relief. Likewise, the court in Crady
v. Cranfill, 371 S.W.2d 640 (1963), recognized the “inherent power” of an appellate court
to “issue such remedial orders as are appropriate to maintain the status quo of a case
pending before it on review.” Id. at 645. Criteria for granting a stay are similar to criteria
for granting a temporary injunction: the likelihood of success on the merits, irreparable
injury if a stay is denied, substantial injury to the party opposing a stay if one is issued, and
18
the public interest. Id.
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Movants incorporate their arguments set forth in support of a restraining order and
temporary injunction here as well in support of a stay. In addition, the public has a great
interest in ensuring that the Movants, especially the students, are afforded Kentucky
constitutional protections and are not irreparably harmed by the actions of the Respondents
to preserve the educational integrity of the Commonwealth’s schools, student attendance
at schools especially in geographically isolated areas, and the community services provided
by schools like Cordia.
This Court should grant Movants’ motion for a stay and allow the Cordia School to
remain open and stop the transfer of students during the pendency of this case. This stay is
necessary to prevent the Respondents from continuing to cause irreparable harm to
Movants and from violating constitutional provisions to be free from arbitrary decisions by
their government, rendering Movants’ right to appeal meaningless.
CONCLUSION
For the foregoing reasons, Petitioners request that the Court grant a restraining
order, temporary injunction, and stay to prevent Respondents from closing the Cordia
School and forcing the transfer of 230 students and re-drawing Knott County’s school
boundaries. Movants are suffering immediate and irreparable harm if the school is closed
and the students are transferred to an alternate school.
19
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/s/ Clay Barkley

Clay A. Barkley
KBA # 93636
Randal A. Strobo
KBA # 92767
STROBO BARKLEY PLLC
Suite 917
Ned Pillersdorf
KBA # 54930
(606) 886-6090
(606) 886-6148 (fax)
20
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CERTIFICATE OF SERVICE
The undersigned certifies that copies of the foregoing by U.S. Mail on this the 26th day of
January, 2018:
Kevin C. Brown, Associate Commissioner

General Counsel

KENTUCKY BOARD OF EDUCATION

300 Sower Blvd., 5th Floor, Room 533
KNOTT COUNTY BOARD OF EDUCATION

1156 Hindman Bypass
Andy Beshear, Attorney General

/s/ Clay Barkley____________

Counsel Having Certified
21

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COMMONWEALTH OF KENTUCKY

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DONNA HURLEY, Individually and on

TONYA MELTON, Individually and on

THE LOTTS CREEK

STEPHEN L. PRUITT, in his official capacity as

Serve: Stephen Pruitt

KENTUCKY DEPARTMENT OF EDUCATION

Serve: Andy Beshear, Attorney General

KENTUCKY BOARD OF EDUCATION

Serve: Andy Beshear, Attorney General

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Serve: Randy Combs, Board Chair

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and otherwise inconsistent with Kentucky law.

3. Defendant, Stephen L. Pruitt is the Kentucky Commissioner of Education, which is the

chief executive of the Department of Education (hereinafter “KDE”). The Commissioner’s

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pursuant to KRS 156.010.

to summon witnesses by subpoena and hear testimony in matters of a quasi-judicial nature.

JURISDICTION AND VENUE

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disposition of an administrative hearing, whenever made effective by an agency head, whether

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adequate due process or opportunity to be heard.

Knott County Board of Education with the Plaintiffs.

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international students in dormitories on the school’s campus.

Knott County, Kentucky, on property owned by LCCS.

Lease Agreement, Exhibit 1.

International Insurance Company of Hannover SE (“Lloyd’s of London”). When construction

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still pending judicial review.

still trying to secure a new policy for the buildings.

auditorium was not used.

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be closing on January 15, 2018.

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structurally damaged Cordia School building.” Exhibit 7, p.2.

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School mid school year beginning February 2, 2018.

arbitrary action as prohibited by the Section 2 of the Kentucky Constitution.

provide for an “efficient system of common schools throughout the State.”

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to receive an education as described in their attached affidavits.

High School is twenty miles (34 minutes away) from Cordia.

dangerous road conditions.

having to integrate into new schools without any notice or preparation.

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correspondence is factually incorrect on numerous fronts.

no other option but to close the school.

correspondence are greatly exaggerated. Plaintiffs believe resolution of the Commissioner’s

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violation of Section 2 of the Kentucky Constitution.

Education and LCCS.

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LCCS campus and the safety of the Cordia School’s students.

various reports of certified professionals.

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over the lives, liberty and property of freemen...”

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defenses and cross examine witnesses.

Commissioner under his statutory authority.

must be set aside and voided.