GARY F. JONES, Appellant, v. KANSAS STATE UNIVERSITY, Appellee.
No. 90,475
Supreme Court of Kansas
February 18, 2005
106 P.3d 10
Luke B. Harkins, of Steve A. J. Bukaty, Chartered, of Overland Park, argued the cause, and Steve A. J. Bukaty, of the same firm, was with him on the briefs for appellant.
Richard H. Seaton, of Office of University Attorney, Kansas State University, of Manhattan, argued the cause, and was on the briefs for appellee.
The opinion of the court was delivered by
DAVIS, J.: Gary Jones was terminated from his position as a police officer with the Kansas State University Police Department (KSU Police) for gross misconduct or conduct grossly unbecoming a state officer or employee pursuant to
Gary F. Jones was employed as a police officer with the KSU Police beginning in January 1997. On August 26, 2001, Jones was riding with Student Security Officer Pharaoh Guice when he stopped a vehicle driven by Gretchen Esping for speeding.
Most of the traffic stop was recorded by a video camera in Jones’ police car. The videotape reflects that Esping pulled over approximately 6 feet from the curb, parallel to the curb but perpendicular to the marked parking spaces. Jones approached the vehicle, asked to see her driver‘s license, and advised her that she was going at least 32 miles per hour in a 20 miles per hour zone. Jones ran a license check, which revealed that Esping‘s license had been sus-
Jones returned to his car to verify the suspension. At this point, Jones asked Guice to make sure that the stop was being videotaped because “this lady is gonna be a problem.” Jones then went back and advised Esping that the dispatcher had confirmed the suspension for the third time and asked Esping for her address. Esping, who was still crying, gave Jones her address and said that she lived at the end of the block. Esping told Jones that she wanted to know what court had suspended her license. Jones returned to his car to write out the traffic citation and to get that information for her. Upon returning to his car, Jones again told Guice, “I‘m gonna let this run and run. I do not want that turned off for any reason. Any reason.”
Jones returned to Esping‘s vehicle, asked Esping to sign the citation, and advised her of the court date. Esping told Jones that he would have to appear in court with her lawyer, and Jones asked if she was threatening him. Esping initially refused to sign the citation and tried to explain to Jones that she was never informed that her license had been suspended and that it was not suspended. Jones informed her that if she did not sign the citation he would have to put her in handcuffs and take her to jail. Esping then asked Jones to drive her car home. Jones told her that he could not do that but that he would give her a ride home or she could walk home and he would make sure that her car did not get towed. After Jones repeatedly told Esping that signing the citation was not an admission of guilt, Esping finally signed and accepted the ticket.
Esping started crying again and asked Jones if he could follow her home, and he refused. After explaining the ticket to her, Jones asked again if he could give her a ride home. She asked again if she could just take her car down to the corner to get her groceries to her home. Jones responded, “Okay. One second. One second. I want to tell you something. One second.” He walked back to the
“At this time I informed the suspect that her license was suspended, and that I would issue her a notice to appear (citation # 6638) and she would be released at the scene, the suspect vehicle was legally parked at the time of the stop so the driver agreed to leave the vehicle where it was until she could have a friend drive her vehicle to her apartment building.”
Approximately a month later, Esping filed a complaint claiming that Jones threatened her or conducted himself in a manner that caused her to have concern for her safety. The KSU Police began an internal investigation of the traffic stop. Captain Charles Beckom conducted the investigation and reviewed the videotape, the tape log, the in-car camera policy, and interviewed various witnesses, including two neighbors of Esping, Ahmed Elshahawi and Samir El-Zarkouny, and Esping, Guice, and Jones.
Esping told Captain Beckom that after ordering Guice to turn off the video camera, Jones said, “My wife is German and you and I are about the same age. Tell you what. You give us two minutes to get out of here and then you go park your car in front of your apartment and don‘t drive it again until this is cleared up.” Guice verified that Jones told him to turn off the camera, spoke with Esping for about 10 seconds, and said something “to the effect of her doing what she wanted to do after he left the area.”
Jones told the investigator that he turned off the videotape for about 2 minutes because he did not want anyone to hear him telling Esping that “he was not going to watch her when they left” and so that the KSU Police would not use it against him for being a caring person. Jones also admitted that he went to Esping‘s apartment later that day to tell her about the teletype reflecting the suspension of her driver‘s license. He also went to her apartment about a month later to ask for a statement after he learned he was being investigated for the incident.
On December 13, 2001, KSU Police Director Ronnie Grice sent a letter to KSU Director of Human Resources Gary Leitnaker requesting that Jones be terminated immediately because Jones
On December 14, 2001, Leitnaker sent Jones a letter informing him that the KSU Police requested his dismissal for the reason of gross misconduct or conduct grossly unbecoming a state officer or employee in violation of
After the January 8, 2002 hearing, the PRC unanimously concurred with the KSU Police findings and recommendation for dismissal in concluding that Jones did submit false information in a case report regarding this traffic stop and violated the in-car camera policy that states “every traffic stop shall be recorded until the stop is terminated.” Leitnaker dismissed Jones effective January 10, 2002, for reason of gross misconduct or conduct grossly unbecoming a state officer or employee and informed him of his right to appeal to the Board.
Jones filed a timely request for a hearing before the Board pursuant to
KSU Police Director Grice testified that the KSU Police had received a request from the municipal prosecutor regarding the traffic stop that was made on August 26, 2001, by Jones. It took the officer in charge of that unit about a month to find the videotape of the stop because it had not been logged in and was on an 8-hour tape. Grice testified that the videotape and Jones’ report of the incident did not match; therefore an internal investigation was conducted which concluded that Jones had violated the KSU Police policy by turning off the camera and by falsifying his police report.
Grice explained that he requested termination in this case because Jones created an integrity issue by covering up something that he did wrong. As an officer with the KSU Police with a credibility or integrity issue, any report, citation, or documentation produced by Jones might be thoroughly questioned by the prosecutor in any case that he would submit paperwork.
Captain Beckom opined that the traffic stop was not terminated when the camera was turned off. Beckom testified that the car was not legally parked because it was parked parallel to the roadway across three parking spaces, and parking in that area is at 90 degrees to the curb. Beckom felt that termination was justified because he had a serious concern about Jones’ credibility. He reasoned that the last paragraph of the report was totally false as the car was not legally parked and the driver did not agree to let a friend drive the car. He explained that at most times this information would not be included in the report, and it was an intentional false statement to cover up something.
Guice testified that he did not consider the stop terminated when Jones told him to turn off the camera and Jones returned to Esping‘s vehicle. Upon his return, Jones said that he told Esping she could do what she wanted after they left because she had groceries in the car. Later that night, Guice went back by the location and observed that Esping‘s vehicle was legally parked near what he believed was her residence.
Jones testified that he had 17 years of law enforcement experience before beginning employment with the KSU Police in 1997.
Jones explained that he did not violate the in-car camera policy because the traffic stop was terminated when he gave her the ticket. He explained that he told Captain Beckom that he had instructed Guice to turn off the camera because the traffic stop was terminated and that he was afraid that the next thing he was going to say to her, “I didn‘t care,” referring to whether she moved the car, was going to be used against him.
Jones testified that he typed the report later that evening from memory. He did not intentionally state that the car was legally parked knowing it was illegally parked, but he was more concerned with what was going on with her and “how this would [a]ffect her and me.” Jones said that after the video camera was turned off he told Esping that he understood her plight but he could not legally let her drive in his presence. Esping agreed to let someone else take the car, but Jones concluded the conversation by saying he did not care what she did.
Jones admitted on cross-examination that the two most recent directors of the Riley County Police Department directed the KSU Police not to permit Jones to go off campus to assist with the Riley County Department. Prior to this testimony, the Board members had extensively questioned Jones about the nature of his EEOC complaints and his previous performance evaluations.
KSU Police Officer Timothy Schrog testified on Jones’ behalf and opined that a traffic stop is terminated when the violator signs the traffic ticket and has signed on the line that he or she will contact the court. At that point, the violator is free to leave, even if the officer told the motorist to wait a minute, because the officer no longer had a custodial stop.
Jones petitioned for judicial review, and the district court heard oral arguments on the case. Jones argued it was not gross misconduct to turn off the video camera regardless of whether the stop had been terminated because the KSU Police did not have any method in place for monitoring and enforcing that policy. Jones alleged that his report‘s statement that Esping agreed to have a friend drive the car was not false because she told him that after the videotape was turned off. Jones also argued that it was highly debatable whether the car was legally parked and even if it was not, it was such a “meaningless detail” that it had nothing to do with the element of driving on a suspended license.
Jones further asserted that the KSU Police was seeking to terminate him because of his previous lawsuit and his pending EEOC charge and the Board improperly focused on the merits of these actions. Jones argued that no separate standard for gross misconduct for law enforcement officers exists under the statutes and KSU has essentially said that any smudge to the integrity of an officer renders that officer useless to the KSU Police.
In affirming the Board, the district court noted that the Board did not expressly find a violation of the in-car camera recording policy. However, the court concluded this finding was unnecessary to find evidence of gross misconduct or conduct grossly unbecoming a state officer and employee. The court reasoned that Jones’ actions and the issue of trust, and not a policy violation, were the principal issues. The court found that Jones intentionally shut off the recording and
“[w]hether, objectively, what was done ‘off camera’ was something great or small, the significant point is that [Jones] did not want his actions to be recorded and, while he earlier wanted to ensure that the tape was getting everything, to protect
his interest in a somewhat difficult stop, he later acted to make sure the tape was stopped, also to protect his interest.”
The court also found that the record supported the Board‘s finding that Jones included false information in his report relating to whether Esping‘s car was legally parked. The court concluded that the Board applied the correct standard of review in determining that Jones’ termination was reasonable and that substantial evidence supported the Board‘s determination.
Jones timely appealed, but his appeal was initially dismissed for failing to timely docket the appeal pursuant to Supreme Court Rule 5.051 (2003 Kan. Ct. R. Annot. 32). Jones’ motion to reinstate the appeal was granted.
A majority of the panel of the Court of Appeals reversed the district court. 32 Kan. App. 2d at 314, 326. The majority first found that substantial competent evidence existed in the record to support the accusation that Jones erroneously characterized the vehicle as legally parked, but no evidence was presented that the error was intentional or that the inaccuracy should be characterized as a falsification. The majority also found that substantial evidence was presented that Jones technically violated the in-car camera policy in stopping the camera prior to the end of the “Esping ‘event.‘” 32 Kan. App. 2d at 319-21.
In determining whether Jones’ actions constituted gross misconduct or conduct grossly unbecoming an officer under
The Court of Appeals majority disagreed that the principal issue was one of trust and declined to create a special criteria or test for
Judge Malone wrote a dissenting opinion concluding that Jones’ actions constituted gross misconduct sufficient to support his termination as a police officer. The dissent found that Jones committed two serious violations of police department policy by intentionally turning off the video camera before the stop was terminated and by failing to log the videotape recording on the login sheet in an attempt to prevent it from being located. It noted that the purpose of the recording system is to ensure reliable documentation of police stops and Esping had filed a complaint about Jones’ conduct during the stop in this case. By turning off the camera, Jones destroyed evidence and unnecessarily exposed the KSU Police to charges of police misconduct. 32 Kan. App. 2d at 327.
The dissent further found that Jones filed a false report by stating that the vehicle was legally parked, and upon consideration of Jones’ actions, “it is hard to believe this was an unintentional misstatement of fact.” 32 Kan. App. 2d at 327. The report was also false because it failed to state that Jones turned off the camera and told Esping that she could drive home. It found that filing a false report is a particularly serious offense for a police officer because prosecutors regularly inquire if there are any credibility or integrity problems with officers that will arise at trial. The dissent agreed with the district court‘s assessment that Jones was terminated because of a question of trust and concluded that Jones committed “misconduct striking at the very essence of law enforcement” which constituted gross misconduct sufficient to support his termination as a police officer. 32 Kan. App. 2d at 328.
Standard of Review
The Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA),
“(4) the agency has erroneously interpreted or applied the law;
. . . .
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
“(8) the agency action is otherwise unreasonable, arbitrary or capricious.”
The party asserting the agency‘s action is invalid bears the burden of proving the invalidity.
Parties that appeal an agency action to the district court pursuant to the KJRA may appeal the district court decision to the appellate courts, just as parties do in other civil cases.
The appellate court must accept as true the evidence and all inferences to be drawn therefrom which support or tend to support the findings of the factfinder and must disregard any conflicting evidence or other inferences. A rebuttable presumption of validity attaches to all actions of an administrative agency, and the burden of proving arbitrary and capricious conduct lies with the party challenging the agency‘s actions. Connelly, 271 Kan. at 965.
However, when a party disputes the district court‘s interpretation of a statute, the issue raised is a question of law, and the appellate court‘s scope of review is unlimited. Kansas Dept. of Transportation v. Humphreys, 266 Kan. 179, 182, 967 P.2d 759 (1998).
Evidence Supporting the Board‘s Decision
KSU argues that substantial competent evidence supports the Board‘s findings that Jones’ actions constituted gross misconduct or conduct grossly unbecoming a state officer or employee under
The PRC unanimously concurred with the KSU Police findings and recommendation for dismissal on the grounds that Jones violated KSU Police policy by submitting false information in a case report regarding this traffic stop and violating the in-car camera policy that states “every traffic stop shall be recorded until the stop is terminated.”
a. Submission of False Information in Police Report
KSU Police Policy and Procedure § 12.3.24 provides: “An officer shall not make or submit any false or inaccurate reports or knowingly enter or cause to be entered into any departmental books, records or reports, any inaccurate, false or improper information.”
Relevant to this issue, the Board made the following relevant factual findings:
“8. Mr. Jones then returned to Ms. Esping‘s car and informed her that he didn‘t care what she did with her car once he left. He then returned to the patrol car and departed the area with Ms. Esping remaining.
. . . .
“11. Mr. Jones stated in his report that Ms. Esping‘s vehicle was legally parked at the time of the stop and that the driver had agreed to leave the vehicle where it was until a friend could return the vehicle to her apartment building. Ms. Esping‘s vehicle was not legally parked at the time of the traffic stop.
“12. The Manhattan city prosecutor requested from the KSU Police Department, a copy of the video and audiotape of the traffic stop of Ms. Esping. In complying with this request, the KSU Police Department discovered that Mr. Jones had turned off the in-car camera prior to the completion of the traffic stop and that his report differed from the information on the tape regarding whether Ms. Esping‘s vehicle was legally parked at the time of the traffic stop.”
The videotape of the stop clearly shows that the car was illegally parked 6 feet from the curb and perpendicular to marked parking spaces, but the written report indicates that it was legally parked. We conclude that substantial competent evidence supports the Board‘s finding that Esping‘s vehicle was illegally parked at the time of the traffic stop and that Jones indicated that it was legally parked in his report.
However, we find it reasonable to conclude that the Board believed the policy was violated and the misstatement in the report was intentional in concluding that Jones committed gross misconduct and conduct grossly unbecoming a state officer and employee and by finding that the appointing authority‘s decision, which found the policy was violated, was reasonable. As such, remand is unnecessary for resolution of this issue.
The Court of Appeals majority concluded that no evidence was presented that Jones intentionally falsified the report so as to warrant a finding of gross misconduct. However, intent may be shown by circumstantial evidence and does not need to be directly proven. State v. Whitesell, 270 Kan. 259, 275, 13 P.3d 887 (2000). In this case, circumstantial evidence was presented to support the conclusion that Jones intentionally indicated that the vehicle was legally parked.
First, the videotape clearly shows that Esping‘s car was parked approximately 6 feet from the curb, perpendicular to marked parking spaces. Second, Jones acknowledges the car was illegally parked in the video by offering to put his card on the car so that it would not be towed. Third, Jones gave inconsistent explanations for the inaccuracy in his report, saying it was legally parked because it was a Saturday, he was not thinking about it when he wrote the report, or the status of the car was “meaningless detail.” Fourth, Jones failed to log in the stop in the videotape recording log, which made locating the videotaped stop more difficult. Fifth, Captain Beckom
Both the Court of Appeals and this court are charged only with determining if the Board applied the correct standard of review and if its conclusion that the appointing authority‘s actions were reasonable and supported by substantial competent evidence. As the circumstantial evidence described above supported a finding that Jones intentionally falsified the report, the Court of Appeals majority mistakenly disregarded its limited standard of review in this case by reweighing the evidence and substituting its own judgment for that of the Board. Although Jones attempts to argue that this court may not look outside the findings of fact made by the Board, this court must review the evidence presented before the Board to determine whether its findings were supported by substantial competent evidence. Contrary to the Court of Appeals majority, substantial competent evidence supports the finding that Jones intentionally falsified the police report.
b. In-Car Camera Policy
The KSU Police policy regarding in-car camera recording systems, General Order 62.1.18, § B, Operating Procedures, provides in relevant part:
“5. Officers shall record all traffic stops and pursuits, along with major accidents, where practical. . . . No officer may terminate recording an event of this type, until the event has been concluded.
“6. Every traffic stop shall be recorded until the stop is terminated.
“7. Incidents that generate reports will be recorded on the MVR tape log sheet.”
Although the Board did not specifically find that the policy was violated, it did note in its factual findings that “the KSU Police
Jones does not dispute that he told Esping to wait, that he ordered the video camera to be turned off, and that he returned to her car and told Esping he did not care what she did after he left. Captain Beckom and Pharaoh Guice both testified that the traffic stop was not concluded when Jones ordered the camera to be turned off. Although Jones presented testimony that the stop was concluded, it is not the function of this court to reweigh this evidence. See In re Tax Appeal of ANR Pipeline Co., 276 Kan. 702, 723, 79 P.3d 751 (2003).
The Court of Appeals majority begrudgingly admits that the opinion testimony of the KSU witnesses provided substantial competent evidence that Jones “technically” violated the policy. 32 Kan. App. 2d at 320-21. It appears that the majority attempts to downplay this violation as a technicality in an attempt to support its ultimate conclusion that Jones’ conduct was not “gross.” The majority seemingly overlooks the fact that Jones admitted that he turned off the camera in order to protect himself from the consequences of what he was planning on telling Esping. Regardless of its characterization, we find substantial competent evidence was presented that Jones violated the policy by ordering the in-car camera to be turned off prior to the termination of the traffic stop.
As substantial competent evidence supports the two grounds for termination, our next relevant inquiry is whether these actions constituted gross misconduct or conduct grossly unbecoming a state officer or employee under
Interpretation of K.S.A. 75-2949f(a)
KSU argues that the Court of Appeals misapplied
As the legislature has not expressly defined these terms, this issue involves the interpretation of a statute that is a question of law over which appellate courts exercise unlimited review. Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004).
The fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. In determining legislative intent, courts are not limited to consideration of the language used in the statute but may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute might have under the various constructions suggested. In construing statutes, the legislative intent is to be determined from a general consideration of the entire act. Board of Lincoln County Comm‘rs v. Nielander, 275 Kan. 257, 265, 62 P.3d 247 (2003).
a. Legislative History of K.S.A. 75-2949f
The Civil Service Act (CSA),
In 1978, the legislature enacted
The legislature repealed this statute in 1981 and enacted
In a February 16, 1981, Memorandum to the Federal and State Affairs Committee, Norman Hanson, Director of Personnel Services of the Department of Administration, explained the reasoning for the proposed amendments in relevant part:
“The sections of the Civil Service Act pertaining to dismissals, suspensions, and demotions of permanent state employees, and appeals to the State Civil Service Board, were extensively revised in 1973.
“State administrators and state employees have had difficulty understanding these sections of the Civil Service Act.
“We are proposing amendment of these sections this year, with the principal objective of clarifying the language and, thus, making it easier for state agencies and state employees to know their rights and responsibilities.” Minutes, Sen. Comm. on Fed. and State Affairs, February 23, 1981.
At the March 24, 1981, Senate Committee on Federal and State Affairs Hearing, Griggs went over S.B. 417 section by section. Section 5 related to the statute at issue in this case, and the typed notes next to a copy of this section state: “New Sec. 5 replaces
In 1985, the legislature amended
Once again, the legislative history provides little guidance as to why the term “grossly” was added to the statute. In a February 6, 1985, Memorandum to the House Ways and Means Committee, Griggs briefly described H.B. 2125, which included the addition of the term “grossly” to conduct unbecoming a state officer or employee, as modifying several CSA statutes and related personnel statutes. He indicated only that “[t]he majority of the changes were suggested by the Division of Personnel Services and constitute minor revisions.” Minutes, House Ways and Means Comm., February 11, 1985. Thus, the legislative history provides this court little guidance in defining these terms.
b. Definition Adopted by Court of Appeals
The terms “gross misconduct” and “conduct grossly unbecoming a state officer or employee” have not been defined by the legislature in this context, nor were they defined by KSU, the PRC, the Board, or the district court, all of which simply concluded that
In reviewing the history of the statute, the majority noted:
”
K.S.A. 75-2949f was added after this court‘s decision in Swezey v. State Department of Social & Rehabilitation Services, 1 Kan. App. 2d 94, 562 P.2d 117 (1977). In Swezey, this court held:‘Legal cause for dismissal exists if the facts disclose the employee‘s conduct is of a substantial nature and directly impairs the efficiency of the public service, but there must be a real and substantial relation between the employee‘s conduct and the efficient operation of the public service; otherwise, legal cause is not present.’ 1 Kan. App. 2d at 100.
By thereafter enacting
K.S.A. 75-2949f , this court subsequently concluded the legislature intended to establish a category of conduct that is per se cause for discipline, obviating the need for the Board to make a case-by-case determination whether there was direct impairment of the public service. Sanstra v. Kansas Highway Patrol, 15 Kan. App. 2d 148, 151, 804 P.2d 1009, rev. denied 248 Kan. 996 (1991). At no time thereafter has the legislature specifically defined ‘gross misconduct’ or ‘conduct grossly unbecoming’ within the CSA; in fact, the terms ‘gross’ and ‘grossly’ now appear throughout the statute without specific definitions.” 32 Kan. App. 2d at 322.
The majority ultimately adopted the definition of gross misconduct provided now in
“We conclude that, for purposes of
K.S.A. 75-2949f(a) , ordinary misconduct is to be distinguished from gross misconduct, and conduct unbecoming an officer is to be distinguished from conduct ‘grossly’ unbecoming an officer. Particularly since the legislature concluded that the addition of ‘grossly’ was worthy of a specific amendment in 1985, we must conclude that insertion of such terms in qualifying the conduct justifying dismissal was not meaningless and should not be disregarded. See Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). Although we decline to establish a general rule that would serve to define ‘gross misconduct’ in every case, we believe that the legislature intended that ‘gross’ and ‘grossly’ in the language ofK.S.A. 75-2949f(a) mean something significantly more than ordinary misconduct. Notwithstanding our refusal to provide a missing statutory definition for all purposes, we are convinced that in order for misconduct to be ‘gross,’ it must be aggravated, extreme, or wanton in nature, evincing a knowingand reckless disregard for the rules, policies, or other standards of appropriate behavior.” 32 Kan. App. 2d at 325.
While the majority opinion specifically declined to establish a general rule, it essentially did just that by defining the term gross misconduct. However, the Court of Appeals correctly points out that the legislature intended to establish per se causes for discipline and defining the terms merely provides the Board with guidance in differentiating between ordinary misconduct and gross misconduct in the realm of the Kansas Civil Service statutes. However, as discussed below, we decline to adopt a single definition but rather employ several methods to aid in our interpretation of the statute.
The Court of Appeals reliance solely upon
“(d) If the individual has been discharged for misconduct connected with the individual‘s work . . . [and] is discharged for gross misconduct . . . such individual shall be disqualified for benefits . . . [and] all wage credits attributable to the employment from which the individual is discharged for gross misconduct . . . shall be canceled.
“(1) For the purposes of this subsection (d), ‘misconduct’ is defined as a violation of a duty or obligation reasonably owed the employer as a condition of employment. The term ‘gross misconduct’ as used in this subsection (d) shall be construed to mean conduct evincing extreme, willful or wanton misconduct as defined by this subsection (d).”
Significant differences exist between the CSA and the Employment Security Law,
If the legislature had intended this definition to apply under
The terms “gross misconduct” and “conduct grossly unbecoming a state officer or employee” were not specifically defined because their meanings within the context of legislation involving state employees are not unfamiliar. For a number of years, these terms have provided guidance to state employers and employees. Their meanings are perhaps similar to the conduct suggested by the definition set forth in
First, the dictionary defines “gross” as “glaringly noticeable usually because of inexcusable badness or objectionableness.” Webster‘s New Collegiate Dictionary 507 (1973). Black‘s Law Dictionary 702 (6th ed. 1990), defines “gross” as “[o]ut of all measure; beyond allowance; flagrant; shameful; as a gross dereliction of duty, a gross injustice, gross carelessness or negligence. . . . Such conduct as is not to be excused.” Misconduct is defined as “[a] transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior.” Black‘s Law Dictionary 999 (6th ed. 1990).
Second, the statutory construction doctrine of noscitur a sociis, which literally means “it is known from its associates,” is an ancient and well known maxim that is a common sense aid to the construction of doubtful language. This doctrine may be applied when the meaning of a word or phrase might be obscure or doubtful when considered in isolation to clarify or ascertain by reference to those words or phrases with which it is associated. When taken in context, a word may have a broader or narrower meaning than it might have if used alone. State v. Zabrinas, 271 Kan. 422, 432, 24 P.3d 77 (2001).
Finally, review of what other actions have constituted gross misconduct is helpful to this analysis. We note that while the Court of Appeals cited several cases from other jurisdictions where officers committed much more egregious acts which warranted dismissal, only one of those cases involved the term “gross misconduct.” See City of Minneapolis v. Moe, 450 N.W.2d 367, 370-71 (Minn. App. 1990). As such, the persuasiveness of those cases is minimal.
The following cases provide some guidance as to what other courts have considered to constitute gross misconduct. See De-
After examining the definitions and grounds for discipline set forth above, it is clear that the legislature‘s use of the words “gross” and “grossly” in the statute signified that it required something significantly more than ordinary misconduct. All of the grounds for discipline are of a serious or extreme nature, and the actions are generally intentional or willful. When reviewing the cases involving gross misconduct, it appears that the actions giving rise to termination were more egregious than those committed by Jones in this case.
However, the analysis does not end there. The next issue we must consider is whether his conduct should be viewed in isolation or under the totality of the circumstances including the effect that his actions had on his ability to perform his job. The Court of Appeals refused to consider how the misconduct reflected upon Jones’ credibility as a state officer or employee.
d. Uniform Application of the Statute
The Court of Appeals majority opined that if it looked to how the officer‘s misconduct affected his credibility, then it would have to create a special criteria or test based upon trust for state-em-
Interestingly, the Court of Appeals majority cites Moe, 450 N.W.2d at 370-71, in which the Minnesota Court of Appeals found that a police officer‘s felonious possession of cocaine constituted gross misconduct in light of the nature of his position. The court focused on the issues of trust and integrity as it related to the misconduct:
“The image of integrity and trust is essential to the performance of a police officer‘s duties. There must be public confidence in law enforcement, and to ignore felonious possession of cocaine by a police officer could only serve to undermine public confidence in that office.
“This is a time in our society when the scourge of cocaine is running rampant in many parts of our country. We cannot be blind to society‘s concern about the adverse influence of cocaine in our midst.
“To some, the result to Moe might seem harsh. He is redirecting his life and that is commendable, but his efforts to rehabilitate are irrelevant to the issue of good cause to discharge. The issue here is the integrity of the police department and under our scope of review we must affirm.” 450 N.W.2d at 370.
While the end result, allowing Esping to drive her car a short distance without a license, does not appear to be a major offense, the ramifications of Jones’ actions seriously affected his credibility and integrity as a KSU Police officer. Under the circumstances of this case, we conclude that the Court of Appeals majority improperly substituted its judgment for that of the Board. Substantial competent evidence supports the Board‘s conclusion that Jones’ actions constituted gross misconduct or conduct grossly unbecoming a state officer and employee sufficient to support his termination as a KSU Police officer.
Judgment of the Court of Appeals is reversed. Judgment of the district court affirming the Board‘s conclusion upholding Jones’ termination is affirmed.
LUCKERT, J., concurring: I concur in the outcome of the majority opinion and most of the rationale but disagree with the majority‘s conclusion that KSU Police Department Policy and Procedure § 12.3.24 required that Gary Jones must have intentionally falsified the report.
The policy states in part: “An officer shall not make or submit any false or inaccurate reports . . . .” Nothing in this portion of
The majority does not explain why it interprets the policy to require that an officer who makes or submits a report must do so with the intent to state a falsehood or inaccuracy. Intent may be a factor in determining if there is gross misconduct, but the majority does not discuss the intent requirement in this context. In fact, the majority‘s discussion of gross misconduct is consistent with a determination that the lack of trust which can result because of a false report, whether resulting from negligence or intentional falsehood, is a basis to determine that submission of a false report is gross misconduct.
If the policy is applied as written rather than as construed by the majority, Jones violated the policy by making and submitting a false or inaccurate report regardless of whether he did so intentionally. Therefore, the Kansas State Civil Service Board (Board) made an adequate finding when it stated: “11. Mr. Jones stated in his report that Ms. Esping‘s vehicle was legally parked at the time of the stop . . . Ms. Esping‘s vehicle was not legally parked at the time of the traffic stop.” This finding establishes that Jones made the report and that the report was false or inaccurate, thus establishing a violation of the policy.
Consequently, the majority need not and should not have engaged in the questionable analysis of whether the Board must have meant, although it did not specifically find, that Jones had intentionally submitted a false or inaccurate report.
MCFARLAND, C.J., and BEIER, J., concur in the result.