*1 557) (266 P.3d 104,318 No. County, Kansas, Ap- Denning, Sheriff
Frank Johnson Kansas, County, Civil Sheriff’s v. The pellee, Johnson Maurer, Board, Appellant. and Michael Service Appellee, *2 filed Opinion October 2011. LLC, Roach, & L. Roach and S. Kansas McCauley Kratofil, Morgan Jeff Missouri, Maurer. for Michael City, appellant, Leitch, & Michael F. and Michael C. Fane Britt Browne Delaney Spencer Park, Kansas, LLP, Civil Ser- of Overland Sheriffs County, appellee Johnson vice Board. *3 Ferree, III, Hash, Ferree, Bunn, L. and Grant M. & O’Grady Lawrence Park, Chtd., Frank of Overland Rundberg, appellee, Denning. Before Leben, Marquardt, Green and P.J., JJ. the court’s de- Michael Maurer district Marquardt, appeals J.: 2010, 8, 30, 2009, his
cisions March and January terminating Sheriff with the s We County Department. employment Johnson affirm. 26,2007, while Mike Maurer was On Master July Deputy driving from to the Sheriff with Topeka County Department Johnson a into the car. Maurer Darrin Deputy Eddy, horsefly got police metal it at tossed notebook that had comers on the 5-pound windshield to kill the after Maurer hit trying horsefly. Immediately notebook, with the both and Maurer noticed windshield Eddy crack in the windshield. Maurer commented Eddy spiderweb that he how he would crack to his wondered sergeant. explain On their return to the sheriff s Maurer car put department, note on his desk with a “Crack—rock keys sergeant’s post-it saying in windshield.” Maurer’s note the next Greenwood found Sergeant post-it Joe with 7:30 and 8 a.m. When and talked Maurer between
morning crack, told that “the about Maurer Greenwood questioned of a windshield had as the result rock chip pre- spiderwebbed vious in came later and told Greenwood that day.” Deputy Eddy Maurer had tried to kill the with the notebook and caused horsefly the windshield to crack.
Greenwood and Lieutenant Pinkelman the windshield inspected and could find in no rock the cracks. Because of the chip disparity in the two versions of the events that led to the windshield being cracked, Greenwood asked Maurer to a written prepare report to be “as detailed as form had the possible.” report following (REPORT words at the “DETAILS ALL FACTS IN printed top: LOGICAL At 10 a.m. SEQUENCE).” on Maurer re- July turned to Greenwood’s office with a written form dated report July 26, 2007, which stated its entirety: hours, “On 07-26-07 from 0800-1600 I was to Court Services. At assigned ap- Hours, I and were from proximately Deputy Eddy returning Topeka Juvenile Correctional when a small in the windshield into crack. I Facility believe chip grew I must have when I to kill a Horse that we aggravated chip attempted Fly Olathe, As we drove the rest of the back picked up Topeka. the small way crack became larger. office, “When I returned to tire I it note with the placed yellow post keys Greenwoods desk. Sergeant [sic] further to Nothing report.” When Maurer, Greenwood discussed this with Maurer report did not tell Greenwood that he had thrown a at the wind- pookette shield. Pinkelman was with a of Maurer’s provided copy report, and he asked Maurer to a more detailed Maurer prepare report. second written also dated prepared report July stated in its entirety: hours, “On 07-26-07 from 0800-1600 I was to Court Services. At assigned ap- Hours, and I were from proximately Deputy Eddy returning Topeka Juvenile Correctional after off an inmate. While down Facility, dropping driving high- I to kill a horse that had into car.
way, attempted Not large fly gotten wanting *4 to take a chance of this Horse into face while I Fly the flying my driving, grabbed find, (no binders) I could which was a blue smooth notebook thing and to kill it. I believe that the windshield a attempted striking aggravated previous done, rock that into a web’. This action was in no with chip grew spider way any ill to do to Unit 176. This was attempt accident and I take damage a[n] purely full responsibility. office, When I returned to the had left for the so I everyone already day, it note’ with the on placed yellow Greenwood’s desk. On ‘post keys Sergeant (rock). the small note I wrote ‘windshield cracked’ The note was as a placed only so Greenwood and the rest the precaution, Court Services in- Sergeant were formed of the defect. The small note I left with the was not meant to abe keys, ” nor be as a complete explanation, interpreted ‘report.’ s failure in his verbal and written Based on Maurer reports windshield, the Pinkelman honest about his role cracking that Maurer had violated sheriff determined department’s LL, which truthfulness states: policy falsification of or failure to disclose information rel- “1. intentional any Any result in Administrative action. fitness for evant to suitability employment statement(s) false “a. are from intentionally Employees prohibited making any their their of official duties or with fitness in connection with performance for duty. 1) (A) false statement. Making from to disclose information connec- “b. are failing Employees prohibited tion with of their duties. the performance (A)” 1) to disclose information. Failure Rector Maurer’s actions inter- Captain Wayne investigated windshield was officers and the evidence. The viewing examining sent to Criminalistics Laboratory County’s testing. Johnson stated: The laboratory report “The direction of force could be determined based on the observed damage lines are not rehable on laminated the windshield. and fractures Wallner glass two are in their movement each other because the sheets of restricted glass this the laminate A low could create of dam- and material. type velocity projectile from on either side the windshield.” impact age his internal Rector interviewed Maurer on investigation, During asked: and August . . . at time “Rector: did transport any during transport During you a rock windshield?
witness hit the “Maurer: No. windshield, When, all no issue of “Rector: there’s a rock Okay, hitting right. after out the cracked windshield to when you, okay you Deputy Eddy pointed with thrown the blue have had this encounter the horsefly you’ve,you’ve guys not, and, it there I don’t know if the was killed or doesn’t folder fly really up removed and back made matter but at folder was awayyou put point windshield, a, did made a about a rock what comment hitting you say? you been, I have the rock started it and I “Maurer: said it must must’ve just just I a rock hit it that know. uh it. But didn’t mean day, you aggravated simply All it made or was it serious “Rector: was comment you joking right, comment. No a off the wall comment.
“Maurer: it was just *5 it “Maurer: ... I write a I don’t come I out and report yet jump up, in don’t there first the momin’ I’m the sole reason this go thing say hap- why here, that is we’re because I didn’t wanna take full for pened, why responsibility it at first.” Rector determined that Maurer had violated the sher- Captain iff s truthfulness Greenwood ini- department policy by telling that he the crack in caused the windshield. A Professional tially (PSB) Standards Board of the sheriff s department comprised five an also conducted Maurer deputies investigation concerning of how the windshield was cracked. After the report investigation, was held at winch evidence and sworn were hearing testimony admitted. Maurer was at the with his present attorney asserted that he did not “feel” he was the sole cause repeatedly the cracked windshield.
Neither Maurer nor saw in the windshield when chip Eddy any the vehicle before for their they inspected leaving trip Topeka. Maurer now claims that at some while he was he saw point driving a small on the outside of the side of the windshield chip passenger near the seat, dash. who was in the said he Eddy, riding passenger never saw in the windshield. any chip PSB considered Maurer’s “statements and demeanor through- his
out and felt that if Maurer could not be truthful testimony” windshield, about the “what would if he were in a happen placed career, situation where he knew his his etc perhaps marriage, would be A violation of the truth- compromised?” department’s fulness includes “failure to disclose information” connec- policy tion with officer’s duties. Maurer failed to the fact disclose threw he at the windshield in his first three pookette explanations windshield crack.
The PSB members stated that none of them would want to be Maurer’s because could not trust what he said. There- they partner fore, the PSB concluded that termination was the be- only option if cause did not want to be “how Maurer’s could they partner, they someone else in the Sheriff [with Maurer].” place department Frank affirmed the PSB’s decision and terminated Denning Maurer’s Maurer his termination to the employment. appealed (CSB). Civil Service Board County Johnson *6 19, 2008, the of the CSB At the hearing January beginning in- to make these “We want stated: fairly proceedings chairperson sheriff; die the received exhibits from formal.” The CSB summary of the the PSB’s from the PSB hearing; investigation; transcript memo; 7,2007, 5,2007, Maurer’s November November Denning’s Maurer, of from Green- and 123 letter of testimony appeal; pages chair- wood, the the and Undersheriff hearing, Cavanaugh. During a of this “We’re also stated: proceeding recording person making to it intention vote and isn’t our today.” returned of the the CSB recessed and At the conclusion hearing, minutes, its statement that no decision and in notwithstanding decision, its made that the CSB delivered would be stating: day, had to the reviewed that we prior hearing, “The board has obviously everything the et We also been mindful and reviewed and cetera. have very the transcript it is a of matters and is—this to our these kinds statutes that relate authority board, of the to us decision of subject complete findings preliminary preparing it will be the date that and we will submit to the and fact an order that parties it is the . . .But the decision order that will receive the you begin appeal process. the to that this board has either of the board that to 19-4327 authority pursuant of of such the and the salary order reinstatement of employee employee payment of or to sustain the dismissal such has reason of such dismiss[al] as been lost by 19-4327(d), it on this board on three to is the decision And employee. pursuant the that is to order the reinstatement of one to with the first and to decision go has of the of such been lost salary by and the payment employee employee such dismissal. reason of Act, will the the order contain “. . . Pursuant to the Administrative Procedures so both sides have the order as at die bottom of required bylaw rights appeal of the Civil Service Board.” as to the decision instructions appealability fact; no it oral included The CSB’s decision merely findings to Maurer. Two that the sheriff was reinstate concluded required later, 12,2008, the CSB issued written decision months on March which it that “there was no evidence to found finding support finds LL CSB and con- violation of occurred. specifically were, accounts, all truthful.” cludes that the two reports district court. the CSB decision Sheriff appealed Denning CSB’s district court held that the On findings January unreasonable, and not were arbitrary, capricious, supported by its standards for It found that the CSB never stated facts. operation this “created environment where the were unaware parties of the and substantive rules the CSB.” The procedural guiding district court stated: “The CSB’s is to determine whether duty there was substantial and evidence the Sher- competent siff decision” and the case remanded CSB “for further con- sideration under the standard and under rules appropriate legal and effect to the procedures adopted give meaning that is authorized K.S.A. 19-4327.”
Maurer and this court dismissed the because appealed, appeal the district court’s order was not a final order on all issues. Before CSB, the case was heard Board again by County Johnson (Board) Commissioners exercised its home rule author- County *7 (Charter and Charter Resolution No. 040-08 Resolu- ity adopted tion) on 2008. The Charter Resolution the CSB July exempted 19-4314, the of from K.S.A. 19-4304 “provisions through 19-4318, 19-4328, 19-4316 in K.S.A. 19-4320 and through through in K.S.A. 19-4331 19-4333” and extensive through adopted oper- rules and the CSB. ating procedures Resolution, alia,
The Charter inter states: Appeal Proceedings. SECTION 4. Civil “[Article VIII] Service Board The CSB shall hold on the action. The for the appeal hearing disciplinary procedure shall the the conducted Sheriff s Office. hearing depend upon proceedings Appeals “a. on the Record. If die Sheriff Office conducted full hearing review, on the issues of before board then the CSB before the appeal shall abe on the record. The CSB shall review and consider the hearing record of before the board of review. If the CSB determines proceedings Üiat the the with a full and fair proceedings provided employee opportunity her, to hear the and evidence him or a full and fair charges against oppor- to confront the evidence and wit- tunity to cross-examine the charges evidence, nesses and rebut the full and a and fair consideration the board, review the CSB shall limit its to of the hearing arguments parties, and to determine whether the decision of is the Sheriff ad- supported by in evidence the and is not record equate clearly unreasonable. Hearing “b. on the Evidence. the If Sheriff s Office did not conduct a board or of review the record those is not in- either available or proceedings decision, to the evaluate then the CSB shall hold a full adequate hearing and receive evidence and on the basis for and reasonableness of testimony the action. disciplinary CSB shall CSB. After the tire deliberate 6. Decision of the hearing, “SECTION to it. The CSB shall con- and/or evidence consider the arguments presented a full and fair the was oppor- whether sider and determine employee provided If CSB determines that in the the address the issues disciplinary process. to tunity the a full and fair tiren CSB stay was not process, the employee provided with directions to matter back the Sheriffs Office and remand the discipline of the redo all or part process. fair did full and CSB finds that the provide op- “If the disciplinary process issues, then the CSB shall determine to address to the employee
portunity in was evidence of the Sheriff by adequate whether the decision supported shall def- was reasonable. The CSB and whether the decision clearly give record its for that tire Office and shall substitute erence to Sheriffs judgment evidence the decision of the Sheriff when no and will overturn Sheriff on factors or the decision is based record the decision or impermissible supports and/or unreasonable clearly arbitrary. the decision action, to overturn the shall have affirm “The CSB authority disciplinary relief, action, another Office or such transfer to optional disciplinary propose of the County. agency CSB to the district court for judicial “The decision bemay appealed its review of decision.” 15, 2009, was held
The second CSB using May The CSB in the Charter Resolution. rules and adopted procedures dismissal, affirmed Maurer’s find- a different decision and came to ing: Maurer’s for vio- decision terminate employment “The Sheriffs Deputy LL, evi- Truthfulness is substantial
lation of Professional Standard supported by information con- the record that Maurer failed to disclose dence in Deputy his to make initial nection with the of his duties reasonably required performance *8 of the incident not misleading.” and subsequent reports affirmed the second CSB’s decision The district court affirming 26, a notice of Maurer’s dismissal. Maurer filed April appeal 2010, which stated: Michael Maurer “Notice is appeals hereby Appellant/Defendant given Decision and attached Entry’
from the Court’s Final ‘Judge’s Ruling’) (‘Journal 30, in the Court’s ‘Memo- filed on March 2010 and from the contained rulings 8, to of of filed on the Court randum Decision and Orders’ January Appeals the State of Kansas.” Hearing
2008 CSB and Order CSB’s Standard Review
Maurer claims that the first CSB did not its exceed or authority act or a de novo and arbitrarily capriciously by holding hearing a de novo and decision that its decision should have been issuing At affirmed. the time of Maurer s first CSB the CSB had hearing, no rules or for an from a sher- hearing procedures handling appeal iff s dismissal of a deputy. is: When the CSB has no or rules question hearing proce-
dures, what standard of review should the CSB when re- apply a sheriffs dismissal of viewing deputy? Nielander, In Board Lincoln Comm’rs v. County
257, 266-67,
(2003),
Under K.S.A. a sheriff actions taken are personnel to an civil service civil When subject applicable system. county service board has no rules and from procedures, appeal a sheriff action is controlled K.S.A. 19-4303 et personnel seq. “The sheriff dismiss when he con- any permanent employee however, of the siders service will be served good thereby;” the sheriff is restricted from dismissing permanent employee 19-4327(a). or racial reasons.” K.S.A. “political, religious We that the CSB is a that has the recognize quasi-judicial body hear “[c]onduct authority hearings complaints” by against 19-4311(h). of the sheriff s It “em- personnel department. evidence, facts, draw conclusions as powered Investigate weigh actions, a basis for official of a and exercise discretion na- judicial ” Board, 638, ture.’ Civil Service 2d Ratley Sheriffs (1982). decision, In its the CSB should making *9 698 dismiss sheriff consideration that
take into “[t]he any perma- of the service will that the when he considers nent good employee 19-4327(a). After a and consid- K.S.A. be served hearing thereby.” evidence, to the CSB has the of tire eration authority approve However, 19-4327(d). tire K.S.A. decision. sheriffs disapprove the sheriff s “the reasonableness” of is to CSB limited considering 19-4327(b). action. v. Civil Service Bd. Leavenworth cites Zoellner Maurer (2008), P.3d 2d 1288 39 Kan. claiming App.
County, a determination authorized CSB by making “statutorily makes a He then of the Sheriff decision.” the reasonableness huge standard, “the first this “reasonable” and concludes that using leap not act its and did did not exceed CSB arbitrarily authority de novo a de novo issuing holding capriciously no for his conclusion. He cites decision.” authority civil service board was whether The issue Zoellner county another dismissed sheriff s to transfer a had the authority deputy that after the A of this court held enforcement law panel agency. it did not the dismissal of the civil service board sustained deputy, Zoellner, rehire him. the sheriff to have the authority require at 698. 2d App. concluded that that this “civil-service board The dissent claims (Leben, 2d at reasonable.” Maurer wasn’t firing or “reasona- words “reasonable” We note that the J., dissenting). written decisions in either the oral or CSB do not bleness” appear from tire hearing.
The CSB’s order found: LL that a violation of
1. “No evidence finding occurred.” accounts, were, truthful.”
2. all two “[T]he reports not as was 3. “The mere fact that first report complete violation of does not rise LL.” desired took 4. “Mr. Maurer at all times responsibility.” did not all of the exhibits that the CSB consider It is obvious it Maurer’s and evidence as Captain questioning by alleged. During said, Rector, take full he “I didn’t wanna responsibility”; repeatedly I did but came forth and ‘em a “I should’ve story gave complete *10 not think it was uh that bit aof deal because it was just simple uh, a windshield and I didn’t feel comfortable and down jumpin’ up I broke the windshield.” The omissions in all of saying glaring Maurer’s the last written where he stated reports, including report (no that he tried to kill the with a “blue smooth notebook horsefly binders),” was that he hit the windshield with was a “pookette” with metal comers.
Maurer’s how the windshield was cracked from report goes (cid:127) windshield,” “Crack —rock in to
(cid:127) windshield had as the result of “[T]he a rock spiderwebbed to previous day,”
chip (cid:127) a small in the windshield into crack. I “[W]hen chip grew
believe I must have I when to aggravated chip attempted kill to Horse Fly,” finally
(cid:127) “While down the I to kill a driving highway, attempted large find,
horse “I and I could which fly” grabbed only thing (no binders) awas blue smooth notebook attempted kill it. I believe that the windshield striking aggravated pre- ” vious rock that into web.’ chip grew ‘spider All of Maurer’s were calculated shift reports responsibility from him. Maurer “didn’t full wanna take for what responsibility” had he done. Maurer all states that of his were consistently reports true; however, when he admitted there was no “rock questioned, in windshield” the The facts of this case do not previous day. sup- the 2008 decision reached the first CSB. The port findings the first CSB are not the record. supported by
The dissent this would have CSB first blindly accept decision “true” with “the evidence and all inferences to along be drawn therefrom which or tend to support support findings of the 46 Kan. 2d at 713. The dissent would have us [CSB].” App. a “relaxed standard” of review and “fill in the find- adopt any gaps with the CSB that the “sheriffs to ter- decision ings” agree minate Maurer unreasonable.” 46 2d was at 716. Maurer claims the first CSB decision “was substantially sup- the evidence” because the CSB’s found decision “no ported evidence to that a violation of LL [sheriff s] support finding assertion, this Maurer
occurred.” argues Notwithstanding the CSB’s de basis” needs to be factual “a there support v. Board Morris Pastures cision. He relies County Davenport (2008), Comm'rs, P.3d 1201 revd 2d 40 Kan. App. (2010), Dav 132, 238 this statement. P.3d 731 Dav from Maurer’s case. all respects enport distinguishable a Morris from a district court order was an approving enport appeal Im award of Commissioners’ Board of damages. County County a sheriff s deci involve a review of does not Davenport portantly, *11 has board. case no civil service sion support county by Maurer’s assertion. that the claims that “Greenwood testified
Maurer also reports examination Maurer were truthful.” On redirect by completed counsel, asked: Greenwood was the sheriff s from are “Q. LL on truthfulness says, prohibited Sergeant, Policy ‘Employees with the of their duties.’ information in connection to disclose performance failing to Mike Maurer fail to disclose information you? Did Yes. “A. do that? “Q. And when did he to me. untruthful information he in and offered “A. When came verbally cracked— about how the windshield ‘‘Q. got So he didn’t tell the truth you correct. “A. That’s 4A, the truth there in his first he didn’t tell “Q. you And then —verbally. report
either, did he? added.) He omitted what (Emphasis “A. part happened.” counsel, Greenwood Maurer’s On cross-examination by prior was asked: second written is then in Exhibit 4
“Q. [Maurer’s So where the untruthfulness report]? “A. not in Exhibit 4. It’s first written re- in Exhibit 4A “Q. [Maurer’s Where is the untruthfulness Okay. port]? there either.” it’s not untruthful (Emphasis “A. Other than lack of information added.) determination, Maurer to sheriff
Contrary PSB’s as is “not desired” complete submitting report argues that “officers He claims a violation the truthfulness policy. are not consid- to add amend information reports frequently has cited no instance where dishonest.” Maurer ered specific because the officer had been file second officer report required critical facts from Reference omitted prior unspecified report. without facts does not Maurer’s amended reports position. Such an assertion is without merit. was a truth. “not as desired” half
Maurer’s as complete report Maurer to the first written When Greenwood asked prepare report, “Maurer on his own and ex wanted to come forward Greenwood what what occurred ... exactly explain truthfully exactly plain first and written of the Maurer’s verbal explanations happened.” crack half The reason that cause of windshield were truths. that he want “claim for the half truth was did not Maurer gave infer Half truths are untruths if a conclu sole they responsibility.” have been had the whole sion different from what would concluded Cronlund, 42, 45 (E.D. 25 F.R.D. truth been told. See Johnstone 1960). half truth was calculated to a different Pa. Maurer’s produce had conclusion than the conclusion that would have been drawn truth told. the whole been has held that an abuse of discretion occurs
Our
Court
Supreme
fanciful, unreasonable, or not
when the action taken is arbitrary,
Motel,
v. Kansas
Health
tire facts. Pork
Dept.
Corp.
supported
Environment,
&
(1983). An
*12
of
decision is
and
if it is “is so wide
arbitrary
agency’s
capricious
lies
the realm of fair
mark
its unreasonableness
outside
Motors, Inc.,
In re
30 Kan.
Tax Application
debate.”
Emporia
of
rev. denied
The first CSB erred the sheriff s decision. reversing District Court’s Review the First CSB Decision we note that the first CSB decision was not a unan-
Prehminarily,
Also,
imous decision.
the CSB erred when it stated that its decision
is reviewable under
the Kansas Administrative Procedure Act
(KAPA), K.S.A. 77-501 et
Act,
and the Kansas
Review
seq.,
Judicial
K.S.A. 77-601 et
K.S.A. 77-501 et
and K.S.A. 77-601 et
seq.
seq.
are
to state
seq.
O’Hair
decisions. Under
applicable
agencies
v. U.S.D.
300,15
No.
2d
rev. denied
805 P.2d
(1990),
Marsh,
245, 255,
274 Kan.
(2002),
703 60-2101(d) ‘A or final order made rendered by “K.S.A. provides: judgment subdivision, thereof or or judicial quasi- or exercising taxing any agency political the district court on reversed vacated or modified functions by may judicial is statute.” review for district courts by No standard of specified appeal.’ 60-2101(d) and of review is When by governed scope “ KAPA, The not court has held: district not the our (1) novo, is whether: case but hmited to hear the de deciding (2) its de- within of its decision was Board’s authority; scope evidence; (3) and it did was cision supported by substantially ” O’Hair, Kan. 15 not act capriciously.’ fraudulently, arbitrarily, 458, 463, 40, No. 244 Kan. at 57 Butler U.S.D. 2d v. App. (quoting [1989]). P.2d 651 769 when has rule
The dissent Kansas “long applied suggests see if are decisions to they sup reviewing administrative-agency cases, evidence; look at the in such we substantial ported by ev evidence contrary agency’s findings ignore supporting cites 46 Kan. 2d at 713. For dissent idence.” App. support, 232, Kansas, v. 276 Kan. & Inc. Blue Cross Blue Shield Praeger, SRS, 263, (2003), 248 v. Kansas Dept. of Kaufman Elevators, (1991), v. Kan P.2d 876 Inc. Kan. 811 Garvey Comm’n, 496-97, 484, 961 696 P.2d Human sas Rights (1998), Star Central Gas Inc. Southern Pipeline, Cunning, 807, 1, 157 (2007), and Kansas State 2d P.3d Kan. ¶ Syl. Education, 274 256. Kan. at Board of cases articulated the Elevators and Southern Star
The Garvey district court’s deci- for an review of a standard court’s appellate a CSB not to a review of decision sion. That standard is applicable the Kansas Human court. involved a district Rights Kaufman review court’s the standard of was Commission—and appellate Marsh a teacher termination of a district court’s decision. is review same as civil service is not controlled statutes case and that review a sheriff decision. boards personnel intent is that the rule of construction The fundamental statutory if ascertained. that intent can be of the Bergs- legislature governs 607, Co., 214 P.3d trom v. Spears Manufacturing the court (2009). statute When a unambiguous, plain in it. found read the statute will not into something readily *14 704 Comm'n, M. Constr. 268,
Double v. Kansas 288 Kan. Corporation (2009). P.3d 7 To the extent any statutoiy interpretation is review is unlimited and no deference is appellate required, Kansas Reve to the Dept. longer given agency’s interpretation. of Powell, nue v. (2008). CSB, board, A decision of the be reversed quasi-judicial may if it acted outside its of made a decision not scope authority, sup evidence, substantial or acted ported by fraudulently, arbitrarily, Robinson as the dissent has articulated. See City capriciously Trustees, 266, 270, 241 Wichita Retirement Bd. P.3d of of (2010). The court district the CSB decision held: reviewing acted its CSB outside of of and “[T]he acted and ca- scope authority arbitrarily CSB, of instead a determination of substantial and com- priciously. making evidence, its the substituted for decision of the Sheriff in petent order judgment so, to secure an alternate outcome. In CSB the the evidence and doing reweighed that determined diere was some evidence to Maurer and none to support support However, die s action. Sheriff diere exists a deferential with to standard regard the review of CSB’s the Sheriffs decisions his and personnel regarding Deputies standards for truthfulness and for the of the service. The CSB’s is to good duty determine whether there was substantial and to evidence competent Sheriff s decision. The CSB erroneous standard review of the employed Sheriff s decision. failure of the CSB to rules Additionally, enact and proce- dures to effect to the in CSB the act resulted arbi- give provisions acting and the Sheriffs decision to terminate trarily capriciously Maurer. overturning is “The case remanded to the CSB for further under consideration the appro- standard and under rules and to priate legal give procedures adopted meaning and effect to the K.S.A. that authorized 19-4327.” hearing We that the CSB’s first decision was not agree supported by evidence, substantial the district and court did not err competent that decision. reversing Adoption Hearing Rules and Procedures Maurer claims that the district court erred in its 2009 decision because the “first CSB did not its exceed or act arbitrarily authority and, rules not for the if it capriciously by hearing, establishing did, it amounts to harmless error.” 19-4327(e) such CSB establish rules as requires The district court determined the CSB necessaiy.
acted not rules Maurer’s arbitrarily by adopting hearing prior view,” held, “In this court’s the district “the first hearing. created an environ- failure to such standards operation provide ment where the were unaware of sub- procedural parties Moreover, CSB. did CSB stantive rules guiding failed such rules to the the board fail communicate parties, CSB had “a clear directive enact them.” Denning agrees legislature” under K.S.A. 19- from the to create rules *15 4327(e). the
Maurer focuses on “as bemay necessary” language, arguing the it the to whether rules that statute “leaves to CSB decide up and “rules are to out its duties” that be necessaiy carry may 19-4327(e). at all.” See K.S.A. necessary has offered for its
Neither party legal support interpretation the statute or the The district court cited requirement. rule-making Cards, & Hallmark Inc. v. Kansas Commerce 32 Dept. Housing, rev. denied 278 715, 726, Kan. Kan. 2d 88 P.3d 844 App. (2004), the which stated the statute directed that De “explicitly The court noted that “fail rules and regulations. partment” publish and com ure promulgate specifying comprehensive regulations standards with an of informal standards plete coupled application render the decision basis” case-by-case may agency’s arbitrary with law. 32 and otherwise not in accordance and capricious, mandate, at we Kan. 2d 726. “Given this clear must legislative App. to an level of deter hold even Department scrutiny higher whether internal and unwritten standards have been its mining 2d 726. 32 Kan. at We uniformly consistently applied.” App. such in this case. do not have a clear directive As before this quasi-judicial body Denning argues, appearing without unfair to those an standard “patently appear- applicable “ it.” ‘the error before Maurer claims so long agency ing be af- did not action must parties, agency’s prejudice ” Industries, Comm’n, See Farmland Inc. v. Kansas Corp. firmed.’ Zinke, (1999) P.2d 2d (citing records, 475). at “In it is clear Maurer claims: viewing that the lack of rules did not cause actual harm established any he was not ahead of time “able Denning prepare party.” argues for the to be conducted.” type hearing
We have determined that it is not to conclude that the possible CSB’s failure to rules establish was harmless the casual given ap- used first CSB and the issuance of proach during hearing a decision within minutes after the ended.
Here, the district court found that the “failure to such provide standards for created an environment where the operation parties were unaware of the and substantive rules procedural guiding 19-4327(e) CSB.” K.S.A. civil service board to requires county However, establish such rules as the failure to necessary. rules and while informal hear- provide regulations holding fairly creates an environment that allows a civil board service ing op- erate on a A basis. does not case-by-case case-by-case hearing pro- mote and decisions. The consistency uniformity hearings of a civil failure service board to enact rules and for its regulations and orders creates inference its deci- hearing procedures sion was arbitrary capricious.
The dissent
states that this issue
raised
was not
before
correctly
the district court and issues not raised before the district court
However,
cannot
be raised on
at 38.
generally
Slip op.
appeal.
courts
this
*16
three
and
rule
recognize
exceptions
general
grant
“(1)
if:
review
the
asserted
involves
newly
theory
only question
of law
on
or
facts
admitted
and is
determi-
arising
proved
finally
case; (2)
native of the
consideration
the
of
is
theory
necessary
serve the ends of
or to
denial of fundamental
justice
prevent
rights;
(3)
or
the
of
district court
on
judgment
may
upheld
appeal
its reliance on the
State v.
283
despite
wrong ground.”
Shopteese,
331, 339,
(2007).
Kan.
Maurer’s argument act its cision because the “first CSB did not exceed authority rules for the and hearing, establishing arbitrarily capriciously by and, did, due if it it amounts to harmless error” implicates process Therefore, the first time this court address the issue for rights. is a has violated Whether a to due been right process appeal. unlimited review. of law over which this court exercises question (2008). Holt, State v. stated that first
Before the CSB chairperson hearing began, informal,” heard and the CSB would be hearing “fairly yet did not and Such a statement extensive give arguments. testimony rules or substantive either directive on any procedural party follow, rules and it was error not to that the CSB would provide and for its decision. procedures Application of Rules on Remand New Civil Service Resolution Maurer claims the the Charter adoption deprived CSB Between him due at the second rights hearing. process Res- CSB the Board enacted the Charter first and second hearings, first, which is “the and to date set rules olution regu- only, review lations to the CSB’s applicable quasi-judicial disciplinary a full and fair function.” As as the hearing, long given employee “is to whether the sheriff decision the CSB’s review is limited is not evidence in the record and clearly supported by adequate Further, VIII, Resolution, 4. Article sec. unreasonable.” Charter *17 s Office and shall not “shall deference to the Sheriff CSB give and will overturn the for that of the Sheriff substitute its judgment record when no evidence decision of the Sheriff sup- Resolution, VIII, sec. 6. Article the decision.” Charter ports 708 Maurer, this Charter Resolution should not
According
apply
to his
CSB
it
second
because was
his
enacted after
hearing
original
was held. Administrative
have the force and
regulations
effect of statutes and will be construed to operate prospectively
Werholtz,
unless
intent is
indicated.
v.
279
contrary
clearly
Tonge
481, 486,
(2005).
Kan.
P.3d
But there is an
exception
rule where
is
or remedial in
general
change
procedural
Co., Inc.,
In
510,
nature.
re Tax
Sand
265 Kan.
Appeal Alsop
523-24,
(1998).
Maurer the Charter Resolution argues “significantlychanges conducted the CSB” and therefore substantive. The hearings by CSB counters that the standard of review “used review board by is a matter that be procedural applied retroactively.”
Maurer has that the persuasively substantially argued Charter out, Resolution is a substantive theAs CSB change. points Maurer has not identified which of his vested or substantive clearly have been affected the Charter Resolution. Maurer did rights not have a vested in the used this case. See right procedure Williams, (1979). Nitchals v. Maurer has heard before terminated right fully being has not been affected the Charter Resolution. right Resolution, Under the Charter the CSB must still determine whether Maurer was afforded a “full fair to ad- opportunity” dress the if issues before sheriff decision is determining sup- evidence. ported by adequate
The CSB this court to a Texas decision where the criminal points court held that the mechanisms for appeals procedural reviewing State, conviction are not a vested and substantive Fowler right. (Tex. 1999). 991 S.W.2d Crim. This criminal case offers no for CSB’s position.
709
v. Kansas
Co.
of SRS,
In
Developmental Supports
Dept.
Johnson
570, 577-78,
(2009),
We find that the Charter Resolution properly applied second CSB hearing.
Second Civil Service Board Decision that the second CSB’s decision Maurer briefly argues Finally, and should be reversed. was not substantial evidence supported that, incom- Maurer contends “if were [the] reports anything, above, But, as discussed out critical untruthful.” leaving plete —not facts is violation truthfulness There- department’s policy. fore, there evidence to even under Maurer’s is support argument, Kansas State University, the CSB’s decision. See Jones 128, 142-43, (2005). P.3d Maurer states that the in outcomes between two difference was “demonstrates that the second decision arbi- CSB decisions out, But the CSB differ- trary capricious.” points “reaching standards of review is not in- ent conclusions under different between decisions dication of action.” Inconsistency arbitrary error as the decision is substantial reversible so long supported Herron, evidence. See State v. 959, 966, (2008). that Maurer was substantial evidence to
There finding Therefore, the district violated the sheriffs truthfulness policy. 30, 2010, are af- court’s decisions and March of January firmed.
Affirmed.
# a » Sheriff Frank Leben, J., dissenting: County Denning Johnson fired after Michael Maurer Maurer failed Deputy initially report he’d caused crack in windshield of a car by patrol tossing *19 a accordion folder full at of a 5-pound plastic papers horsefly the car. the But Kansas law malees sheriff s decision sub- personnel a review civil-service board “to determine the reasona- ject by 19-4327(b). bleness of action.” K.S.A. The civil-service board [the] reasonable, that concluded Maurer wasn’t and we are not firing allowed to substitute our for that of the administrative judgment statute with such a decision. I would agency charged by making board, therefore affirm the of decision the civil-service which or- dered Maurer be reinstated. this case is a of bit and we procedural history complicated,
should with consideration of that. There were two civil-serv- begin ice board in this case because the district vacated hearings order, the first civil-service-board which had voted to 1 to require Maurer’s reinstatement. A second civil-service-board hearing, which took after the Commission place County adopted Johnson new rules to the resulted in a 3-to-2 decision guide process, up- sheriff the s action. holding
From a one other factor is procedural standpoint, complicating the use sheriffs of what he calls board as professional-standards of his internal of whether part department’s process deciding take action or terminate an While disciplinary against employee. free sheriff is to consult with others in making employment- decisions, related board is not estab- professional-standards statute, lished and its existence does not tire by change statutory of civil-service board. authority view,
In the district court vacated the first civil- my wrongly service-board order. Because the case should have ended with an Maurer, affirmance of that order I do address reinstating any issues to the second board relating hearing.
The Roles Sheriff Firing the Civil-Service Board Decisions Consideration of the case must with delineation of begin civil- the civil-service board in a roles of the sheriff and respective Such are service systems designed protect permanent system. in Kan- from fired For an urban sheriff unfairly. employees being sas, he con- “when the sheriff dismiss may permanent employee will be but that the of the service served siders thereby,” may good for racial reasons. never dismiss employee political, religious, 19-4327(a). has further K.S.A. But “Any protection: employee before the so dismissed [civil- may employee request... action.” to determine the reasonableness such board service] 19-4327(b). addition, 19-805(d) In K.S.A. provides taken the sheriff. . . shall action be subject “[a]ny personnel added],” and . . . . . . civil service any system [emphasis applicable subservient, subordinate, means or inferior to” “subject generally (6th 1990); See ed. Franks v. to. Black’s Law Dictionary Roades, 2010). (Tex. 310 S.W.3d make initial decision the sheriff
So the sheriff whatever finds the sheriff s but the department, good appropriate determine, board must civil-service employee, appeal *20 all, the sheriff s action. After the civil-service reasonableness of “to board has one determine statutory only purpose: 19-4327(b). And when the of action.” K.S.A. reasonableness such unreasonable and dis- civil-serviceboard finds sheriff decision decision, the em- it “shall order reinstatement of approves 19-4327(c). K.S.A. ployee.” statute, the board
In as established civil-service this system, v. Civil Service exercises functions. Ratley quasi-judicial Sheriff’s Board, 638, 5, (1982); P.2d 1133 see 7 Kan. 2d 646 ¶ App. Syl. Comm’rs, 252 v. Kan. also Board Wabaunsee Umbehr County of 30, 33, (1992) (action taken board that P.2d 176 or 843 by agency facts and issues as stand determines legal they present existing nature); in v. law is either or City judicial quasi-judicial Halford of 936, (1984) 934, 975 234 Kan. 677 P.2d jurisdic (finding Topeka, un of board tion to hear officer’s civil-service ruling police appeal decisions);Adams der from appeal quasi-judicial provision allowing (1973) Marshall, 595, 599, civil- 212 v. Kan. (city's actions service commission disciplinary reviewing police-officer Amis, 658, v. 208 Kan. acts in Thompson quasi-judicial capacity); 712
663, 1259, cert. denied (1972) (state 493 P.2d 409 U.S. 847 civil- service acts in board That means that the quasi-judicial capacity). civil-service board is the statute in these cases entity designated by facts, evidence, conclusions, draw investigate weigh exercise discretion of a that’s nature. 7 Kan. Ratley, any judicial 638, 2d 4. Syl. ¶
The Court’s Standard of Review for a Local Government’s Civil-Service Board When a or board acts city county quasi-judicial capacity, board —not a court —is with the factual reviewing charged making whatever discretion there is. findings exercising Accordingly, review deferential. We reverse the board’s de- highly may it cision if acted outside its made a decision scope authority, evidence, not substantial or acted ar- supported by fraudulently, v. Robinson Wichita Retirement bitrarily, City of capriciously. Trustees, Bd. 266, 270, (2010); 291 Kan. Brown 241 P.3d 15 333, U.S.D. No. 261 (1996). 928 57 P.2d In this review, the court must not substitute its for that of the judgment board, nor the court consider facts quasi-judicial indepen- Trustees, v. Board and make its own findings. Neeley dently Policemens Firemens Retirement 780, 205 Kan. 782- System, 83, (1970). P.2d The same standards are whether applied Robinson, review is in the district court or in an court. appellate 291 Kan. 270. at
There are some rules additional to a court review of apply the civil-service them, board’s decision here. Before I discussing Act, note that the Kansas Review does adopted Judicial to the review of decisions made local units of apply govern 77-602(a); ment. See Frick v. City of 77-603(a); K.S.A. Salina, 1, 10-11, P.3d (2009). So when a court *21 board, reviews a tire of civil-service we the ruling county’s apply traditional rules Kansas have courts when local- applied reviewing actions without to the that have agency regard statutory changes been enacted for our of review decisions. state-agency Although the new standards for review of legislature adopted state-agency decisions in 1984 and a has made number of amendments to those
713 then, caselaw made to the it has not similar statutes since changes review of that had standards been place local-government actions. a rule when administrative-
Kansas has
reviewing
long applied
are
substantial
to see whether
decisions
they
supported by
agency
cases,
evidence;
at the evidence
in such
we look only
supporting
Blue
the
evidence.
contrary
E.g.,
ignore
agency’s findings
263,
Kansas,
232,
276
Shield
Inc. v.
Kan.
& Blue
Cross
Praeger,
of
(2003) (“[T]he
as true the evidence
(1987). When we review the decision of a district we judge, gen that the district court found all of erally the facts needed presume its unless a in the district support judgment party objected to the Industñes, findings inadequate. E.g., Dragon Vanguard 349, 356, 144 (2006). P.3d 1279 I that the same presume rule when we review the of an administrative applies ruling body in a manner. acting quasi-judicial Ruling
Consideration of the First Civil-Service Board With mind, these rules in let’s consider what in the happened first civil-service-board The board in its order hearing. recognized that it with Maurer drat the board was in a agreed acting quasi- the sheriff s that judicial the board’s capacity, rejecting argument role was limited to whether the sheriff had determining provided due before Maurer. The procedural board de- process terminating cided the sheriff s claim that Maurer violated the against depart- ment’s truthfulness information from policy by omitting important his initial The board’s order made these factual report. explicitly findings:
(cid:127) “[Tjhere was no evidence to that a vio- finding
lation of LL, Standard [Professional occurred.” Truthfulness] (cid:127) two were, accounts, “[T]he [Maurer all reports submitted]
truthful. See Greenwood[, testimony Sergeant [Joseph] who asked Maurer to written provide reports.]” (cid:127) counsel, concedes from Greenwood “In response questions truthful, issue was were reports *23 as as or Lieutenant was ‘not [Greenwood] specific
[Maurer] ” him to be.’ Pinkelman wanted [Robert] (cid:127) in the error to fail to include first was report “[Maurer’s] only a blue folder.” the he tossed at the was
that item horsefly (cid:127) Shelton, immediate “[Maurer’s] Sergeant Greg supervisor, work; knows a shows
believes Maurer does job; up good and truthful. does what needs to be done is reliable have as an He would like to him back officer.” die Maurer reinstated. on these board ordered Based findings, are to determine whether When we review these they findings evidence, at the evi- we must look substantial by supported so, Even I would with the dence them. majority agree supporting to the board’s that there’s real here as whether finding question took was violation of the sheriff s truthfulness rules that there no the was But the factual before board ultimate place. question (for the decision to terminate Maurer whether sheriffs violating standard) reasonable, a vi- was not whether there was that policy all. olation at ex- the civil-service board made no
The concludes that majority reasonable, wasn’t conclusion that Maurer firing apparently plicit in its But that’s far too it did not use those terms order. because our of under standards strict an the board’s interpretation ruling down, the didn’t think it was it’s review. Boiled clear board veteran for reasonable fire a initially 17-year failing department he crack in windshield when his role in the causing report at a tossed a folder vinyl horsefly.
Here, was before civil-service board ultimate question s decision. the reasonableness of sheriff Denning appealed had substi- the basis that board the district wrongly that’s what for that of But tuted its own exactly Denning. judgment do: is authorized is statute to The board the board authorized by reasonableness, standard that nec- make determination Moreover, Rat- discretion. under implies application essarily cited, I’ve it’s clear that the board was and the other cases ley acting in a and it’s the quasi-judicial capacity, quasi-judicial entity of a exercises whatever discretion that’s nature. present judicial We also must decide whether the determination of reasonable contexts, ness ais factual issue or a one. In a legal great many Kansas have courts held that determination of reasonableness facts, is a factual to be resolved the trier of question Davis, 997, 1003, 176 court. 2d Dreiling P.3d E.g., (2008) is a reasonableness fact If the (“Generally, question.”). case, reasonableness issue is a factual to be the question, appears we must to the deference board’s But even give again great finding. if the reasonableness here is more issue like a issue than a legal one, factual that is to exercise whatever discretion entity judicial board, sheriff, court, exists is the civil-service not the the district or an court. appellate view from differs mine in it because con- majority’s part
cludes that the first civil-service board’s are not *24 findings supported substantial evidence. The with to be majority may right respect that board’s Maurer didn’t violate the sheriff s finding policy on truthfulness. While did Greenwood that he Sergeant testily found in untruthful Maurer’s two written Green- nothing reports, wood —and the criticize Maurer for he what majority rightly— omitted. that But doesn’t resolve this case because the board’s ul- timate was that the sheriff decision to terminate Maurer finding was And unreasonable. there’s substantial evidence to that decision.
Another traditional rule when deci- applied reviewing agency sions in Kansas underscores that and conclu- point findings —the sions of such entities are a not to disturbed by reviewing unless “so are wide of the mark as to be outside the realm of they 961; Central Kansas Power Co. fair debate.” Kaufman, 248 Kan. at Commission, v. State 482 1 Corporation P.2d (1971). The board’s that conclusion Maurer should not have been fired —-when we limit our to the review facts that con- supporting not outside realm of fair debate. surely clusion — Let’s consider some facts additional board’s con- supporting clusion this is a on Maurer veteran of the United States point. Marine which he active served on At the years Corps, duty. to in the Marine his Maurer continued serve time of Corps firing, reserves; had a he a for He also been had been reserve years. for 17 Maurer’s direct sheriffs years. supervisor, Sergeant deputy Shelton, and that he considered Maurer a officer said good Greg Pinkelman, him a he’d take Lieutenant back. higher-level super- visor, In 17 that Maurer was “an officer.” acceptable years, agreed he had had one minor issue: Maurer had only relatively disciplinaiy “sweetheart,” at a office called the doctor’s apparently receptionist there, and Maurer was told Maurer had an inmate when brought do like that not to anything again. in the sheriff s
After service good department providing (with folder metal Maurer tossed accordion years, vinyl plastic at inside of a car front flap) edges part patrol who kill a The other officer windshield horsefly. attempt Maurer Darrin wrote in his that was reports Eddy, present, Deputy hard, it thrown thrown it and he testified that was not hadn’t very Afterwards, Maurer and noticed “in an manner.” Eddy aggressive not no- a 2- 3-inch crack in the windshield. had they Although beforehand, Maurer believed ticed a in the windshield chip at that must caused rock there have been preexisting chip he tossed the notebook. Most of location before department’s have of the number of miles vehicles rock because they’re chips driven, them until doesn’t department repair generally form. crack begins left a note for a
Maurer supervisor merely indicating initially note, a crack in it. The attached to the car the windshield had keys, windshield,” Pink- “crack in and above that it said “—rock.” said at that time about said that there weren’t written elman policies any to a vehicle but that “something *25 notify reporting damage that to the vehicle so the car won’t there is sergeant damage with officer would be sent out another ap- following day” infor- initial that Pinkelman said that the note provided propriate. a and asked Maurer to written mation. Greenwood prepare report, had kill a one that said he tried to Maurer horsefly prepared wind- had that this chip aggravated existing apparently had because Maurer Pinkelman asked a second shield. report a in the to kill the had used not said he attempt object specific Maurer wrote second that he had taken horsefly. report, saying a “blue smooth notebook” and to kill the with attempted horsefly it. He “I believe that explained damage by saying, striking windshield rock into a aggravated previous chip grew 'spider ”web.’ Pinkelman considered the second written report adequate.
If we are to true to the standard of review—under which stay we look at the evidence that the board’s deci- supports sion—we must also Maurer’s view that there had to have accept been rock in the windshield that un- preexisting chip expanded when hit with the folder. testified to expectedly large plastic Eddy the lack of force when Maurer tossed the folder at the horsefly, said weakened, that the window was or the Eddy likely day hot, was for the to have caused a crack in the particularly impact windshield. The sheriff s sent the windshield to its cri- department minalistics for detailed and the sci- laboratory analysis, examining entist found “a surface” on the exterior of the which chipped glass, would be consistent with the But the rock-chip theory. examining scientist couldn’t determine what that meant because in tests she found that a could cause from an low-velocity projectile damage to either side of a windshield. If there was impact laminated-glass rock (“crack Maurer’s note preexisting chip, though, original rock”) windshield” and seems more reasonable than if there “— was not. that’s we must answer. We must
Again, though, question decide whether the board’s decision—that it wasn’t reasonable to fire Maurer for to disclose that he’d 17-year-veteran initially failing caused at least tire exacerbation of a preexisting chip by tossing at the windshield—was so wide of the mark as to be something outside the realm of fair 19-4327(b) debate. K.S.A. leaves it within the discretion of the civil-serviceboard to make the call. The board decided it wasn’t reasonable facts, to fire Maurer on these a con- debate, clusion within the realm of fair and we are required that decision. uphold concludes that the civil-service board’s role is majority
somehow limited whether some evidence only determining sup- the sheriff s decision if the board has not written ports adopted rules and 19-4327(b) in operating procedures. Nothing sug- *26 whether it has differs based on board’s role that the adopted gests rules. such it reason- whether was about could
Reasonable disagree people the civil-service the facts as found Maurer based on able to fire by than make different inferences board, could and reasonable people case. But a the in this did from evidence reviewing board whether the evidence or determine the evidence does not reweigh see we look different have could findings; supported there is sufficient.evidence whether findings supporting Education, 274 Kan. at See Kansas State Board board made. civil-service Moreover, made the has statute 259. legislature its own therefore makes and the board board entity, quasi-judicial discretion whatever and is with factual exercising findings charged call, and the board is a here. Reasonableness exists discretionary decision. facts, that we must its I believe makes it. On these uphold Issues Other decision first civil-service-board the claim that the
In addition to evidence, has also Sheriff substantial wasn’t Denning supported by it acted that acted outside its board contended authority, a failure to were tainted and that its actions adopt arbitrarily, None of these written before arguments hearing. procedures has merit. acted outside its the board
The first authority— objection—that defer was claim that the board the sheriff s required merely a fair had failed to unless he to his decision provide view, him. In that’s Maurer before simply wrong my dismissing board the K-S.A..19-4327(b) the civil-service a matter of law: gave reasonable, and Maurer was whether discretion to decide firing to” 19-805(d) decision made the sheriffs “subject expressly the civil-service system. ca- acted board
The second arbitrarily objection—that The of this same another restatement argument. just priciously—is “acted claim is that the board sheriffs capriciously arbitrarily the Sheriff.” for that of its majority judgment by substituting it because acted board concludes disregarded arbitrarily there is sub- evidence, but as I have already explained, contrary stantial evidence to the ultimate factual made *27 finding the board —that the sheriff s decision to fire Maurer in these cir- cumstances was unreasonable. The last the board didn’t have written objection proce- —that
dures in for its never made to the civil-service place hearing —-was board and is therefore not raised here. See properly Johnson Institute, Kansas Neurological (1986) (issues in not raised not be agency hearing generally may raised on While there are some limited to the appeal). exceptions that an be raised in an administrative hear- requirement objection Thus, has not of those in his brief. we ing, Denning argued any need to determine whether made the merely Denning objection that the board had no written procedures place during board’s hearing. cites no in the record where he made this
Denning place objec- tion before at Instead, or the first civil-service board he hearing. cites an affidavit he submitted to the district appeal an affidavit in which the sheriff referenced ruling, attempts outside of civil-service board to have the any specific Commission the rules for the civil-service board’s County change affidavit, work. In the said that he had out to Denning “pointed Commissioners lack of with County [board’s] compliance and confusion over the of review in statutory requirements scope and that staff were disciplinary hearings,” county legal preparing to the But such an issue to proposed changes system. presenting officials is not the same as county making objection during contested Maurer is a in this quasi-judicial hearing: Deputy party but not a member of the Commission. Nor has proceeding County the sheriff identified in which a failure to have any way specific written caused him The sheriffs affi- procedures any prejudice. davit makes clear that his conclusion about the “confusion over the of review in relates not to scope disciplinary hearings” procedural matters in but to whether the board has general specifically call as to the reasonableness of a The sheriff discretionaiy firing. has limited; that the board’s role is in the af- consistently argued fidavit, he said that “it for the to over- [was] [board] inappropriate ride a termination decision unless make a dismissal they finding view, that’s not racial reasons.” In was for my political, religious has established. the system legislature 19-4327(e) a civil-service board It’s true that K.S.A. says effect to the such rules as “shall establish necessary give section,” dis- under which it hears these of the above provisions advise the sheriff that No rules are needed to missal appeals. determination; that’s makes the reasonableness civil-service board confu- Sheriff has not shown established statute. any Denning matter, con- knew that Maurer about other sion any Denning had the to make tended that the civil-service board authority has not iden- decision. Even on reasonableness Denning appeal, had evidence that he would have tified additional presented any of the board’s he under authority. interpretation operated proper civil- it wasn’t made to the We should not hear his since objection *28 it, board, the error was and even if we were to consider service he was hasn’t shown which harmless because he way prej- any udiced. sum, board acted within
In I conclude that the first civil-service that the sheriff s termination of its and that its decision authority evidence. wasn’t reasonable is substantial Maurer by supported affirmed the first civil- court therefore should have district at that I do Because the matter ends service board point, ruling. whether the Commission has not address authority by County the civil-service board charter amendment to the role of change I note that the have created would also parties legislature. in their briefs whether the home-rule not addressed County’s pow- 19-805(d) and allow it to limit the that K.S.A. ers would authority 19-4327(b) board. See otherwise to the civil-service K.S.A. give ex- 19-101a(14) home-rule K.S.A. not use (county may powers 19-805); 19- to K.S.A. itself from or effect changes empt . . . 805(d) taken the sheriff shall action (“Any personnel . . . . . . civil service system.”). subject any applicable with di- court and remand the case I would reverse the district board the first civil-service rections to enter judgment affirming order.