Denning v. Johnson Cnty.

• Decision Date: 21 October 2011
• Docket Number: No. 104,318.,104,318.
• Parties: Frank DENNING, Sheriff of Johnson County, Kansas, Appellee, v. The JOHNSON COUNTY, KANSAS, SHERIFF'S CIVIL SERVICE BOARD, Appellee,andMichael Maurer, Appellant.
• Court: Kansas Court of Appeals

266 P.3d 557

46 Kan.App.2d 688

Frank DENNING, Sheriff of Johnson County, Kansas, Appellee,

v.The JOHNSON COUNTY, KANSAS, SHERIFF'S CIVIL SERVICE BOARD, Appellee,andMichael Maurer, Appellant.

No. 104,318.

Court of Appeals of Kansas.

Oct. 21, 2011.

Syllabus by the Court

1. When a county civil service board has no hearing rules and procedures, an appeal from a sheriff's personnel action is controlled by K.S.A. 19–4303 et seq.

2. Under K.S.A. 19–805(a), a sheriff has the authority to appoint, promote, or dismiss deputies and may dismiss any permanent employee. However, the sheriff is restricted from dismissing a permanent employee for political, religious, or racial reasons under K.S.A. 19–4327(a).

3. In making its decision, the county civil service board should take into consideration the sheriff's right to dismiss a permanent employee when the sheriff considers that the good of the service will be served thereby.

4. A county civil service board is a quasi-judicial body that has the authority to conduct hearings and hear complaints by or against personnel of the sheriff's department. Under K.S.A. 19–4327(b), the county civil service board is limited to considering the reasonableness of the sheriff's decision.

5. A county civil service board abuses its discretion and is acting outside its scope of authority when the decision is not supported by the evidence. Such a decision is arbitrary and capricious.

6. Half truths are untruths if the half truth infers a conclusion different from what would be concluded had the whole truth been told.

7. When a county civil service board holds a hearing and has no operating rules and procedures, its review is limited to determining whether there was substantial evidence to support the sheriff's termination of the deputy.

8. An appeal from a county civil service board decision is an appeal of a political subdivision of the state and is governed by K.S.A. 60–2101(d). The district court may not hear the case de novo and is limited to deciding whether: (1) the board's decision was within the scope of its authority; (2) its decision was substantially supported by the evidence; and (3) it did not act fraudulently, arbitrarily, or capriciously.

9. An appeal from a judgment or final order of a political or taxing subdivision exercising judicial or quasi-judicial function may be reversed, vacated, or modified by the district court under K.S.A. 60–2101(d).

10. The fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. When a statute is plain and unambiguous, the court will not read into the statute something not readily found in it. To the extent any statutory interpretation is required, appellate review is unlimited and deference is no longer given to the agency's interpretation.

11. K.S.A. 19–4327(e) requires a county civil service board to establish such rules as may be necessary. However, the failure to provide rules and regulations while holding a fairly informal hearing creates an environment that allows a civil service board to operate on a case-by-case basis. A case-by-case hearing does not promote consistency or uniformity in hearings and decisions. The failure of a county civil service board to enact rules and regulations for its hearing procedures and orders creates an inference that its decision was arbitrary and capricious.

12. Generally, administrative regulations have the force and effect of law and operate prospectively unless (1) the statutory language clearly indicates the legislature intended the statute to operate retrospectively or (2) the statute is procedural or remedial in nature. Procedural laws deal with the manner and order of conducting hearings or enforcing rights.

13. Substantive laws establish the rights and duties of the parties.

14. When a statute is amended while an appeal is pending and counsel for both sides have had an opportunity to brief and argue the amended statute, the appellate court will consider and construe the amended version of the statute.

15. Reaching different conclusions under different standards of review is not an indication of arbitrary action. Inconsistency between decisions is not reversible error so long as the decision is supported by substantial evidence.

Morgan L. Roach and Jeff S. Kratofil, of McCauley & Roach, LLC, of Kansas City, Missouri, for appellant, Michael Maurer.

Michael F. Delaney and Michael C. Leitch, of Spencer Fane Britt & Browne LLP, of

Overland Park, for appellee Johnson County, Kansas, Sheriff's Civil Service Board.

Lawrence L. Ferree, III, and Grant M. Hash, of Ferree, Bunn, O'Grady & Rundberg, Chtd., of Overland Park, for appellee, Frank Denning.

Before LEBEN, P.J., GREEN and MARQUARDT, JJ.

MARQUARDT, J.:

Michael Maurer appeals the district court's decisions of March 30, 2010, and January 8, 2009, terminating his employment with the Johnson County Sheriff's Department. We affirm.

On July 26, 2007, while Master Deputy Mike Maurer was driving from Topeka to the Johnson County Sheriff's Department with Deputy Darrin Eddy, a horsefly got into the police car. Maurer tossed a 5–pound notebook that had metal corners on it at the windshield trying to kill the horsefly. Immediately after Maurer hit the windshield with the notebook, both Eddy and Maurer noticed a spiderweb crack in the windshield. Maurer commented to Eddy that he wondered how he would explain the crack to his sergeant. On their return to the sheriff's department, Maurer put the car keys on his sergeant's desk with a post-it note saying “Crack—rock in windshield.”

Sergeant Joe Greenwood found Maurer's post-it note the next morning and talked with Maurer between 7:30 and 8 a.m. When questioned about the crack, Maurer told Greenwood that “the windshield had spiderwebbed as the result of a rock chip the previous day.” Deputy Eddy came in later and told Greenwood that Maurer had tried to kill the horsefly with the notebook and caused the windshield to crack.

Greenwood and Lieutenant Pinkelman inspected the windshield and could find no rock chip in the cracks. Because of the disparity in the two versions of the events that led to the windshield being cracked, Greenwood asked Maurer to prepare a written report and to be “as detailed as possible.” The report form had the following words printed at the top: “DETAILS (REPORT ALL FACTS IN LOGICAL SEQUENCE).” At 10 a.m. on July 27, Maurer returned to Greenwood's office with a written report form dated July 26, 2007, which stated in its entirety:

“On 07–26–07 from 0800–1600 hours, I was assigned to Court Services. At approximately 1500 Hours, Deputy Eddy and I were returning from Topeka Juvenile Correctional Facility when a small chip in the windshield grew into crack. I believe I must have aggravated the chip when I attempted to kill a Horse Fly that we picked up in Topeka. As we drove the rest of the way back to Olathe, the small crack became larger.

“When I returned to the office, I placed a yellow post it note with the keys on Sergeant Greenwoods [ sic ] desk. Nothing further to report.”

When Greenwood discussed this report with Maurer, Maurer did not tell Greenwood that he had thrown a pookette at the windshield. Pinkelman was provided with a copy of Maurer's report, and he asked Maurer to prepare a more detailed report. Maurer prepared a second written report also dated July 26, 2007, that stated in its entirety:

“On 07–26–07 from 0800–1600 hours, I was assigned to Court Services. At approximately 1500 Hours, Deputy Eddy and I were returning from Topeka Juvenile Correctional Facility, after dropping off an inmate. While driving down the highway, I attempted to kill a large horse fly that had gotten into the car. Not wanting to take a chance of this Horse Fly flying into my face while driving, I grabbed the only thing I could find, which was a blue smooth notebook (no binders) and attempted to kill it. I believe that striking the windshield aggravated a previous rock chip that grew into a ‘spider web’. This action was in no way done, with any ill attempt to do damage to Unit 176. This was purely a[n] accident and I take full responsibility.

“When I returned to the office, everyone had already left for the day, so I placed a yellow ‘post it note’ with the keys on Sergeant Greenwood's desk. On the small note I wrote ‘windshield cracked’ (rock). The note was placed only as a precaution, so Sergeant Greenwood and the rest of the Court Services were informed of the defect. The small note I left with the keys, was not meant to be a complete explanation, nor to be interpreted as a ‘report.’ ”

Based on Maurer's failure in his verbal and written reports to be honest about his role in cracking the windshield, Pinkelman determined that Maurer had violated the sheriff's department's truthfulness policy LL, which states:

“1. Any intentional falsification of or any failure to disclose information relevant to suitability or fitness for employment may result in Administrative action.

“a. Employees are prohibited from intentionally making any false statement(s) in connection with their performance of official duties or with their fitness for duty.

1) Making a false statement. (A)

“b. Employees are prohibited from failing to disclose information in connection with the performance of their duties.

1) Failure to disclose information. (A)”

Captain Wayne Rector investigated Maurer's actions by interviewing officers and examining the evidence. The windshield was sent to the Johnson County's Criminalistics Laboratory for testing. The laboratory report stated:

“The direction of force could not be determined based on the damage observed on the windshield. Wallner lines and fractures are not reliable on laminated glass because the two sheets of glass are restricted in their movement by each other and the laminate material. A low velocity projectile could create this type of damage from impact on either side of the windshield.”

During his...