ROBERT K. MILLER, Appellant, v. BOARD OF COUNTY COMMISSIONERS, WABAUNSEE COUNTY, KANSAS, Appellee.
No. 111,569
IN THE SUPREME COURT OF THE STATE OF KANSAS
Opinion filed March 10, 2017.
391 P.3d 716
- When a statute is plain and unambiguous, the court must give effect to its express language, rather than determine what the law should or should not be. A court determines legislative intent by first applying the meaning of the statute‘s text to a specific situation at issue. A court does not read into the statute words not readily found there.
- When the language of a statute is unclear or ambiguous a court employs the canons of statutory construction, consults legislative history, or considers other background information to ascertain the statute‘s meaning.
- To construe the words of a statute, a court considers the language and design of the entire statute.
- Statutes dealing with the same subject—those that are in pari materia—should be interpreted harmoniously when possible.
K.S.A. 2014 Supp. 19-431 does not give a board of county commissioners the authority to immediately end an appraiser‘s employment, salary, or benefits. Rather, it gives a board of county commissioners the authority to temporarily relieve an appraiser of his or her duties until the director of property valuation decides the appraiser‘s permanent removal is appropriate, or the appraiser chooses not to request review by the director of property valuation within the statutorily prescribed time limit.
Review of the judgment of the Court of Appeals in 51 Kan. App. 2d 644, 352 P.3d 1053 (2015). Appeal from Wabaunsee County District Court; JEFFREY R. ELDER, judge. Opinion filed March 10, 2017. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is vacated and the case is remanded with directions.
Robert J. Perry, of Auburn, argued the cause and was on the briefs for appellant.
Terelle A. Mock, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, argued the cause, and Teresa L. Watson and Sarah A. Morse, of the same firm, were with her on the briefs for appellee.
The opinion of the court was delivered by
MALONE, J.: The facts of this case, as they pertain to the way Miller‘s employment ended, are not in dispute. The Wabaunsee Board of County Commissioners (Board) appointed Robert K. Miller to serve a 4-year term as Wabaunsee County Appraiser in 2009. His appointment was to last from July 1, 2009, through June 30, 2013.
Upon Miller‘s appointment, he and the Board signed an employment contract that, in part, set forth the proceedings the Board would follow in the event it had to discipline Miller.
Nearly 2 years into Miller‘s appointment, on March 14, 2011, the Board met with Miller in an executive session. The Board handed Miller a written note that outlined concerns the Board had about Miller‘s job performance and informed Miller he could resign or he would be terminated, and that he had until the next week to make his decision. Miller said he would not resign.
On March 21, 2011, the Board again met with Miller in executive session. After this executive session, the Board voted to terminate Miller and stop paying his salary and benefits.
Miller exercised his statutory right under
The Board appealed the decision to the district court, contending that the ALJ should have used a deferential standard of review and that the ALJ did not have authority to consider the employee disciplinаry policy outlined in the employment contract because this was not a breach of contract claim. The district court vacated the decision and remanded the case with orders for the ALJ to review the termination without regard for the employment contract and in accordance with the provisions of
On October 9, 2013, the ALJ considered the evidence again, this time without regard to the Board‘s failure to comply with the employment contract. The ALJ gave deference to the Board‘s decision and upheld Miller‘s termination.
Miller appealed this second ALJ decision to the district court, arguing his termination was not in accordance with
We resolve this case in favor of Miller under his first argument that
Accordingly, we reverse the majority decision of the Court of Appeals, vacate the judgment of the district court, and remand the case with directions.
ANALYSIS
Miller argues that
Standard of Review and Principles of Statutory Interpretation
To decide whether Miller is correct, we must interpret
“When a statute is plain and unambiguous, a court must give effect to its express language, rather than determine what the law should or should not be. Graham v. Dokter Trucking Group, 284 Kan. 547, 554, 161 P.3d 695 (2007). We determine legislative intent by first applying the meaning of the statute‘s text to the specific situation in controversy. See State v. Phillips, 299 Kan. 479, 495, 325 P.3d 1095 (2014) (first task in construing statute is to ascertain legislative intent through analysis of language employed, giving ordinary words their ordinary meanings). A court does not read into the statute words not readily found there. Whaley [v. Sharp], 301 Kan. [192, 196, 343 P.3d 63 (2014)]; Graham, 284 Kan. at 554; see Casco v. Armour Swift-Eckrich, 283 Kan. 508, 525, 154 P.3d 494 (2007). When the language is unclear or ambiguous, the court employs the canons of statutory construction, consults legislative history, or considers other background information to ascertain the statute‘s meaning. Whaley, 301 Kan. at 196.” Hoesli v. Triplett, Inc., 303 Kan. 358, 362, 361 P.3d 504 (2015).
Discussion
“Whenever it shall be made to appear to the board of county commissioners of any county or the district board of an appraisal district by evidence satisfactory to such board that the appraiser of such county or district has failed or neglected to properly perform the duties of office, by reasons of incompetency or for any other cause, the board shall enter upon its journal an order suspending or terminating the county or district appraiser from office. Such order shall state the reasons for such suspension or termination, and upon the service of any such order upon the appraiser suspended or terminated such appraiser shall at once be divested of all power as county or district appraiser and shall immediately deliver to the person appointed to discharge the duties of the office of such appraiser, all books, records and papers pertaining to the office. The board of county commissioners or district board shall appoint a temporary appraiser to discharge the duties of the office until the suspension is removed or the vacancy filled, and the person so appointed shall take the oath of office required by law and thereupon such person shall be invested with all of the powers and duties of the office.
“Within 15 days after service of an order of suspension or termination, the appraiser may request a hearing on the order before the director of property valuation. Upon
receipt of a timely request, the director of property valuation shall conduct a hearing in accordance with the provisions of the Kansas administrative procedure act. . . . At the hearing the director of property valuation shall make inquiry as to all facts connected with such suspension or termination, and if after such inquiry is madе the director of property valuation shall determine that the appraiser suspended should be removed permanently and such appraiser‘s office declared vacated or should be terminated, then the director of property valuation shall render an order removing such appraiser.”
The Court of Appeals majority held that the plain meaning of these words gives a board of county commissioners clear authority to terminate a county appraiser and thus, the Board here had the authority to immediately end Miller‘s employment, salary, and benefits upon that termination. Miller, 51 Kan. App. 2d at 663. Indeed, the language provides:
“the board shall enter upon its journal an order suspending or terminating the county or district appraiser from office.” (Emphasis added.)
K.S.A. 2014 Supp. 19-431(a) .
The word “terminating” clearly and explicitly gives a board of county commissioners the power to terminate a county appraiser. However, Miller does not argue that the Board lacked the power to terminate him—he simply disagrees with the panel majority on what effect this termination power has on his salary and benefits during his requested appeal. While the panel majority held that the termination power gives a county board the authority to immediately end an appraiser‘s employment and thus the corresponding salary and benefits, Miller argues that the termination does not have this effect until the PVD decides the appraiser should be terminated or unless the appraiser does not request review of the decision by the 15-day statutory deadline.
Initially, Miller‘s argument seems unpersuasive because “terminate” has a plain and unambiguous meaning—to end. However, this provision of the statute is followed by additional language that creates ambiguity regarding the effect of termination:
“Within 15 days after service of an order of suspension or termination, the appraiser may request a hearing on the order before the director of property valuation. Upon receipt of a timely request, the director of property valuation shall conduct a hearing in accordance with the provisions of the Kansas administrative procedure act. . . . At the hearing the director of property valuation shall make inquiry as to all facts connected with such suspension or termination, and if after such inquiry is made the director of property valuation shall determine that the appraiser suspended should be removed permanently and such appraiser‘s office declared vacated or should be terminated, then the director of property valuation shall render an order removing such appraiser.” (Emphasis added.)
K.S.A. 2014 Supp. 19-431(a) .
This additional language creates ambiguity because it seems to refer to the appraiser who was suspended or terminated by a board of county commissioners and then elected review before the PVD as the “appraiser suspended,” with no reference to an “appraiser terminated.” We see at least three possible ways to explain the absence of this reference:
- The provision details only what the PVD should do with regard to an appraiser who was suspended and does not mean to instruct the PVD on what to do with an appraiser who was terminated.
- The provision details what the PVD should do with regard to an appraiser who was suspended or an appraiser who was terminatеd, but the appraiser is considered only suspended in either circumstance.
- The provision details what the PVD should do with regard to an appraiser who was suspended or an appraiser who was terminated, but the word “suspended” only modifies the word “appraiser” when it instructs the PVD on what it may do with a suspended appraiser.
This takes us to the remaining two constructions, both of which interpret the provision to contemplate a suspended and a terminated appraiser but differ in understanding when the word “suspended” modifies the word “appraiser.” One of these readings, the second of the three that we set out above, would understand the word “suspended” to modify the word “appraiser” throughout the sentence, regardless of whether a board initially suspended or terminated the appraiser or which of the two PVD decisions the statute describes. The third reading would understand the word “suspended” to modify the word “appraiser” only when describing a PVD‘s decision that the appraiser “should be removed permanently and such appraiser‘s office declared vacated,” and would not modify the word “appraiser” when the PVD considers whether the appraiser “should be terminated.”
We find the difference in these two constructions important because one supports Miller‘s construction—that “terminate” does not end an appraiser‘s employment, salary, and benefits but just temporarily relieves an appraiser of his or her duties—and one seems to make the definition even more ambiguous and the statutоry review process more onerous. If we interpret the statute as we have laid out in the second construction listed above, a board‘s termination power amounts to less than what the Board here suggests because such construction regards a terminated appraiser, who elected review, as only “suspended.” It makes little sense for the statute to refer to an appraiser whose employment, salary, and benefits have already ended as an appraiser “suspended.”
If we instead construe the statute as we set out in the third construction listed above, the appraiser is only considered “suspended” when the statute describеs a PVD decision that the appraiser “should be removed permanently and such appraiser‘s office declared vacated.” Because such a decision seems to implicitly refer to an appraiser whom the board has only suspended, such a reading makes sense. However, this suggests that the remaining language in the provision—the language describing a PVD decision that the appraiser “should be terminated“—refers to the PVD‘s consideration of the other kind of appraiser who elects review, that being the terminated appraiser. This is where we enter into even greater ambiguity, because if a board has already ended the appraiser‘s employment, salary, and benefits by its termination, it becomes an enigmatic exercise to determine what result a PVD‘s subsequent termination has on an already terminated appraiser.
Because this statute is susceptible to different meanings with different effects on our understanding of the word “terminate,” we cannot accept the Board‘s argument that this statute is plain and unambiguous. Thus, we need to turn to our canons of construction and legislative history and any relevant background information to decipher the intended effect of a termination by a board of county commissioners.
Applicability of Kennedy v. Board of Shawnee County Comm‘rs
Before we turn to our interpretation of
Miller argues that Kennedy controls this case and obliges the Board to provide him back pay for the time between his termination and a PVD decision or until the expiration of his term. We do not agree that Kennedy controls. Miller‘s argument here assumes that our holding in Kennedy stands for the proposition that
Today, we consider a question that Kennedy did not: what power did the legislature intend to vest in a board of county commissioners when it granted it the authority to terminate a county appraiser under
Statutory Construction of K.S.A. 2014 Supp. 19-431
To construe the words of
First, we consider the statute‘s reference to any appraiser who sought review of a board‘s decision as an “appraiser suspended.” Because there is no reference to an “appraiser terminated,” this language suggests that even an appraiser who was terminated by a county board is considered only suspended when the decision is reviewed by the PVD. That suggestion leads us to understand that a termination by a county board is not a final termination, but one that is conditioned on the PVD‘s later consistent decision regarding the appraiser‘s employment status.
The second passage or group of passages of the statute that helps inform our interpretation are the provisions that lay out the PVD‘s apparent supervisory role. The statute requires the PVD to review a board‘s decision when the appraiser requests review, to
Finally, we find further construction guidance in a third passage of
Together, all of the above language shows us that when a county board terminates an appraiser—who then timely seeks review—his or her employment, salary, and benefits are not ended unless and until the PVD decides to terminate the appraiser. Instead, the appraiser is conditionally terminated and the PVD becomes the ultimate decision maker on the appraiser‘s employment.
While the language of the entire statute, considerеd as a whole, convinces us that Miller‘s argument should prevail, we may also turn to one more canon to confirm our construction. This canon provides that statutes dealing with the same subject—those that are in pari materia—should be interpreted harmoniously when possible. Friends of Bethany Place v. City of Topeka, 297 Kan. 1112, 1123, 307 P.3d 1255 (2013).
Under this canon, we turn to
Available legislative history also confirms our construction of this statute. Since it was enactеd in 1907,
“Whenever it shall be made to appear to the board of county commissioners of any county by evidence satisfactory to said board that the county assessor of such county has failed or neglected to properly
perform the duties of his office, by reasons of incompetency or for any other cause, the board of county commissioners shall enter upon its journal an order suspending the county assessor from his office . . . . “At the time of the suspension of any county assessor as hereinbefore provided, the board of county commissiоners making such suspension shall fix the time, not later than ten days thereafter, when a hearing concerning the same may be had by the director of property valuation . . . . At the hearing the director of property valuation shall make careful inquiry as to all facts connected with such suspension, and if after said inquiry is made the director of property valuation shall determine that the county assessor so suspended shall be removed permanently and his office declared vacated, then the director of property valuation shall make and enter upon the record of his official proceedings an order removing said county assessоr . . . .” (Emphasis added.)
This pre-1974 statute was different from today‘s in two significant ways: It allowed a board to only suspend the county appraiser, with no mention of termination, and it required the PVD to hold a hearing; it was not optional. In 1974, the legislature amended the statute to make the PVD review optional at the election of the appraiser and to authorize suspension or termination by a board.
The House and Senate journals from 1974, the year
There are no minutes available from this conference committee meeting; thus we have no record of any discussion that may have occurred before this amendment was approved. However, because the termination language appeared after the legislature decided to make the PVD review optional, reason invites us to accept that the legislature added the language to account for those instances when an appraiser chose not to have his or her termination reviewed. In such a case the appraiser and county board would no longer have to participate in an unnecessary and time-consuming review hearing, and the termination by the board would, in effect, be final; on the other hand, the appraiser who chose to have his or her termination reviewed would still be considered merely suspended. The language in the current statute indicates this understanding when it refers to any appraiser who seeks review as an “appraiser suspended.” (Emphasis added.)
In sum, our considerаtion of the legislative history leads us to understand that the legislature did not intend to give a county board the authority to end an appraiser‘s employment, salary, or benefits. Rather, it meant to give a board suspension power until the PVD could consider the appraiser‘s employment. By adding the termination language, the legislature made the PVD review optional at the election of the appraiser, thus accounting for the scenario when the appraiser—perhaps for obvious or time-saving reasons—would not seek review. The addition of the termination language resulted in two options for a board: it can suspend or terminate the aрpraiser, but in either case, the PVD is the only body with authority to end the appraiser‘s employment, salary, and benefits when an appraiser requests review.
We further note this interpretation results in a statutory scheme that insulates a county appraiser from political pressures, thus ensuring uniformity and integrity across our State‘s tax valuation system. Miller argues this insulation was the legislature‘s obvious purpose behind a 1960‘s reconstruction of our tax valuation system. As we noted in McManaman v. Board of County Commissioners, 205 Kan. 118, 126, 468 P.2d 243 (1970), this reconstruction vested “ultimate supervisory responsibility for the administration of the assessment and tax laws of the state squarely
When we construe
In this case, when the Board terminated Miller on March 21, 2011, it did not have the authority to immediately end his employment, salary, or benefits. The only thing the Board had the power to do was temporarily relieve Miller of his duties. Until the PVD ordered Miller removed, he was entitled to his employment and the accompanying salary and benefits. Because the PVD did not order Miller removed until after his term expired, Miller was entitled to his wages and benefits until the expiration of his term, when his property right in his position expired.
Accordingly, the judgment of the Court of Appeals is reversed. The judgment of the district court is vacated, and the case is remanded with an order to determine the amount of back pay owed to Miller. Back pay shall include Miller‘s salary and benefits from the date that the Board stopped paying his salary through the date Miller‘s term was set to expire, plus interest.
LUCKERT and ROSEN, JJ., not participating.
MICHAEL J. MALONE, Senior Judge, assigned.1
BENJAMIN L. BURGESS, District Judge, assigned.2
* * *
JOHNSON, J., concurring: I concur with the majority‘s holding that, because Miller exercised his statutory right to a hearing before the director of property valuation (Director) who had the ultimate supervisory authority to order Miller‘s removal as appraiser, Miller was only conditionally terminated—with pay—by the Board of County Commissioners (Board). I write separately to express my view that the hearing before the Director is a de novo proceeding; that the standard of review is unlimited; and that the Director (or the Director‘s hearing officer) is not required to defer to the Board‘s decision.
As noted by the majority,
“To the extent necessary for full disclosure of all relevant facts and issues, the presiding officer shall afford to all parties the opportunity to respond, present evidence and argument, conduct cross-examination and submit rebuttal evidence, except as restricted by a limited grant of intervention or by the prehearing order.” (Emphasis added.)
K.S.A. 77-523(b) .