Heiland v. DunnickHeiland v. Dunnick
The opinion of the court was delivered by
This case comes before us on petition for review of an unpublished Court of Appeals’ decision in
Heiland v. Dunnick,
No. 81,319, filed February 4, 2000. The Court of Appeals affirmed
FACTS
Steven C. Heiland was employed by the Kansas Savings and Loan Department (KSLD) as a financial examiner and auditor from 1987 to February 17, 1991. He had attained the civil service rating of Examiner IV when he was permanently laid off due to a reduction in force. Over the next 2 years, the number of state savings and loans dwindled until there were insufficient funds to support the KSLD, a fee based agency. Senate Bill 58, effective June 18, 1993, abolished the KSLD and transferred its powers, duties, and functions to the Office of the State Bank Commissioner (SBC). See L. 1993, ch. 16, §§ 1-9; K.S.A. 75-1309 et seq.
Before the trial court, the Kansas Court of Appeals, and now this court, Heiland maintains that between his layoff on February 17, 1991, and the expiration of a 3-year period on February 17, 1994, he was entitled to the rights of preferential rehire and placement on the reemployment fist as set forth by the provisions of K.S.A. 75-2948 and Kansas Administrative Regulations (K.A.R). 1-6-23(d) (1989), in effect from the time Heiland was laid off until December 1993, and K.A.R. l-6-23(f) (1994), in effect thereafter. These regulations provided that Heiland, by virtue of his layoff, was eligible to be placed on a reemployment list which afforded Heiland two benefits: (1) Whenever the agency which laid him off sought to fill a permanent position in his class, the agency would be required to rehire from the list. K.A.R. l-6-23(d)(l) (1989);
Heiland asked to be placed on the reemployment lists for consideration of the following positions: Financial Examiner II, III, and IV. Heiland contends that because the KSLD was abolished and its powers, duties, and functions transferred to the SBC, the SBC owed him the same rights as did the KSLD. He argues that those rights were not afforded him because he was not rehired, nor was he notified of opportunities for reemployment as an examiner by the SBC.
On February 14, 1994, Heiland wrote the Department of Administration’s Division of Personnel Services stating that he had not been certified or given the opportunity to interview for any positions during the past 3 years and demanding an explanation. On March 1, 1994, the Division of Personnel Services responded to the letter informing Heiland that his name had been placed on the reemployment fists for Financial Examiner II, III, and IV, but that none of the agencies using the Financial Examiner class had hired Financial Examiner II’s, Ill’s or IV’s outside the agency which would have necessitated the use of the reemployment fists. The Division of Personnel Services further informed Heiland that because S.B. 58 did not provide for the transfer of officers and employees from the KSLD to the SBC, the SBC was not obligated to consider Heiland for positions which were filled internally.
On August 4, 1994, Heiland wrote a letter to Art Griggs, Chief Attorney of the Kansas Department of Administration, claiming that the State Banking Department had manipulated hiring practices and failed to properly administer the reemployment regulation. In his letter, Heiland demanded $5,089 in lost wages and accrued interest, $10,000 in expenses, an increase of five steps to his current compensation, and that his anniversary date remain unchanged. Heiland’s demands were rejected by the Department of Administration’s legal counsel in a letter dated August 17,1994.
On February 6, 1995, Heiland filed a declaratory judgment action against Frankie Dunnick, both personally and in his capacity as Kansas Bank Commissioner. Heiland alleged that from June 18, 1993 to February 17,1994, the SBC failed to accord him preferred rehiring status as required by law. Heiland later amended the petition to add a claim that the SBC had failed to consider the reemployment fist of former KSLD employees before considering the reallocation of positions within the SBC in violation of the law. This claim was based on the SBC’s admitted practice of filling vacant high-level positions which could not be filled in-house by temporarily reallocating the position to a Financial Examiner I position and hiring from outside the agency, thereby avoiding the rehire fist. Heiland again amended his petition to substitute the new commissioner, Newton Male, for Frankie Dunnick in his official capacity.
On March 1, 1996, the SBC filed a motion for summary judgment. On July 15, 1996, the trial court granted partial summary judgment in favor of the SBC, finding that Heiland was not entitled to automatic reemployment rights with the SBC. However, the trial court refused to grant summary judgment on the issue of the use of the reemployment fists, finding that Heiland might be entitled
Heiland’s counsel formally withdrew from the case on November 26, 1996, and no further action was taken before his counsel reentered the case on January 5, 1998. On March 25, 1998, the SBC filed a motion to dismiss pursuant to K.S.A. 60-212(b)(l), alleging that Heiland had failed to timely file his petition for review under the KJRA, thereby depriving the trial court of jurisdiction to hear the case.
The trial court granted the motion to dismiss, concluding that Heiland’s exclusive remedy for the alleged failure to comply with the rules regarding reemployment was through the KJRA. The trial court found that Heiland was required under the KJRA to bring suit within 30 days of December 16, 1994, the date on which the Joint Committee rejected his claim. The trial court concluded that Heiland’s failure to bring suit within 30 days deprived the court of jurisdiction to hear the case.
Heiland filed a motion for relief from judgment and the trial court clarified its order. The trial court stated that Heiland’s letters before the Department of Administration and the Joint Committee demonstrated that he knew of the SBC’s actions, and further served to toll the time for filing until 30 days after the claim was denied by the Joint Committee. However, the trial court denied Heiland’s motion and affirmed the dismissal of his action based upon Heiland’s failure to bring suit within 30 days of final agency action as required by the KJRA.
Heiland appealed the dismissal and the grant of partial summary judgment to the Court of Appeals. The SBC cross-appealed from the failure of the trial court to grant summary judgment for the second part of its motion. In its unpublished
per curiam
opinion, the Court of Appeals affirmed the trial court’s dismissal stating: “We have considered all of Heiland’s arguments for tolling the time he could appeal the decision of the Joint Committee and find that the district court did not err in granting the motion to dismiss.” The Court of Appeals concluded that Heiland had failed to file a petition for review 30 days from the decision of the Joint Committee, as required by K.S.A. 77-613(d), and found that its decision
Application of the Kansas Act for judicial Review and Civil Enforcement of Agency Actions
The KJRA applies to all agencies and all proceedings for judicial review and civil enforcement of
agency actions
not specifically exempted by statute. K.S.A. 77-603(a). It establishes the exclusive means of judicial review of agency action. K.S.A. 77-606;
Lindenman v. Umscheid,
Heiland argues that his action falls outside the purview of the KJRA, relying upon our decision in
Lindenman,
Heiland also relies on
Wright v. Kansas Water Office,
Unlike the tort and constitutional claims in Lindenman and Wright, Heiland’s claims involve the SBC’s failure to perform a statutory and regulatory duty benefitting state employees in Heiland’s position. The SBC is a “state agency,” as defined in K.S.A. 77-602(k):
“[A]ny officer, department, bureau, division, board, authority, agency, commission or institution of this state which is authorized by law to administer, enforce or interpret any law of this state but does not include any political or taxing subdivision of the state, or any agency thereof, or the judicial or legislative branch of state government.”
Heiland’s claim that the SBC’s failed to afford him automatic reemployment rights or properly use the reemployment lists involved an “agency action” as defined by K.S.A. 77-602(b):
“(1) The whole or a part of a rule and regulation or an order;
“(2) the failure to issue a rule and regulation or an order; or
“(3) an agency’s performance of, or failure to perform, any other duty,function or activity, discretionary or otherwise.” (Emphasis added.)
Finally, Heiland’s request for relief is one within a state agency’s authority to grant. Both the SBC, as the agency involved, and the Department of Administration, as the agency charged by statute to perform all powers and duties prescribed by law with respect to civil service and personnel administration, could have addressed Heiland’s complaint and provided him with the remedies he sought. See K.S.A. 75-3747.
We agree with the trial court and the Court of Appeals that the KJRA applies to Heiland’s claims. The claims are based on an agency action of a state agency and the relief requested is one that the agency can grant under its authority. Heiland’s sole remedy for the SBC’s alleged failure to afford him automatic reemployment rights and properly use the reemployment lists is through the KJRA.
Timeliness of Heiland’s Actions Under the KJRA
Having concluded that the KJRA is the exclusive remedy in this case, it becomes necessary to determine what would have been the
Heiland made no attempt to contact anyone at the SBC with regard to his claims. However, the SBC does not claim that Heiland failed to exhaust his administrative remedies with regard to it. Heiland did contact the Department of Administration’s Division of Personnel Services. The Director of Personnel Services is charged by statute, K.S.A. 75-3746, with the responsibility to make investigations concerning all matters touching the enforcement and effect of the provision of the Kansas Civil Service Act, K.S.A. 75-2925 et seq., and rules and regulations adopted thereunder and to enforce the Act.
Heiland’s demand to the Department of Administration was not only an attempt to exhaust his administrative remedies, but also it was a claim to an appropriate agency having the authority and power to redress his claims. The Department of Administration was a proper agency to which Heiland should have gone to obtain an administrative remedy. The denial of his claim by letter dated August 17, 1994, constituted a “final agency action,” as defined by K.S.A. 77-607(b)(l) and (2). Three days for service by mail of the letter should have been added pursuant to K.S.A. 77-613(e). Thus, Heiland’s petition for review would have had to have been filed within 30 days of August 20, 1994, to be timely. This conclusion, however, assumes full compliance with the provisions of K.S.A. 77-
In
Reifschneider,
the plaintiffs had purchased a winning lottery ticket. Because two winning tickets had been sold for that particular drawing, the plaintiffs were awarded one-half of the jackpot. Anticipating that the second ticket might not be presented, the plaintiffs filed a claim for the other half of the prize. The Executive Director of the Kansas Lottery notified the plaintiffs’ attorney by letter that their claim was denied. We held that the director’s notification was a final agency order under the KJRA, and it was thus incumbent on the director to: (1) serve the order not only on counsel but also on the parties themselves, as mandated by K.S.A. 77-613(e) and (2) state in the letter the agency officer to receive service of a petition for judicial review on behalf of the agency also mandated by K.S.A. 77-613(e).
The SBC argues that its action was not an agency “order” but rather an “action” which does not require compliance with the provisions of K.S.A. 77-613(e) regarding service of orders. According to the SBC’s argument, the triggering event for the running of the 30-day period was the inaction of the SBC in failing to rehire Heiland which occurred between February 17,1991 and February 17, 1994. See K.S.A. 77-613(d). The SBC argues that its action concluded on February 17, 1994, and the 30 days began running from that point and would have continued running unless extended by one of the reasons contained in K.S.A. 77-613(d)(l) or (2).
The SBC contends that it is unrealistic to require it to send notice to eveiy person who might possibly be affected by its hiring decisions. We agree. The KJRA clearly makes a distinction between
This interpretation is consistent with the goal of the KJRA. The KJRA favors administrative rather than legal resolutions of problems. To this end, the KJRA mandates that administrative remedies be exhausted prior to the filing of a petition for judicial review. See K.S.A. 77-612. This presents a problem in actions involving agencies whose administrative remedies are not well defined. The Kansas Administrative Procedure Act (KAPA), K.S.A. 77-501 et seq., sets up a framework for administrative review. However, by its own terms, the KAPA applies only to the extent that other statutes expressly provide that its provisions govern proceedings under those statutes. K.S.A. 77-503. Thus, the KAPA is not applicable in the situation before the court.
We acknowledge that there is a difference between this case and Reifschneider in that Heiland sought an administrative remedy not from the agency which took the action but from the Department of Administration. However, because the Department of Administration is charged with overseeing employment issues relating to the Civil Service Act, it was an agency with power to remedy his situation and, therefore, in the absence of a defined procedure for administrative action, it was proper for him to seek a remedy from that agency.
In light of our decision, we need not address other arguments advanced by Heiland regarding the tolling of the time to file a petition under the KJRA. We therefore reverse that part of the Court of Appeals’ decision affirming the district court’s dismissal and reverse the district court’s dismissal of Heiland’s claims based upon his failure to timely file a petition for review under the KJRA.
The decision of the Court of Appeals affirming the district court is affirmed in part and reversed in part. The decision of the district court is affirmed in part and reversed in part.