Flanigan v. Leavenworth Recreation Commission, 47974

• Decision Date: 08 May 1976
• Docket Number: No. 47974,47974
• Citation: 219 Kan. 710,549 P.2d 1007
• Parties: In the Matter of Gary FLANIGAN, Appellant, v. LEAVENWORTH RECREATION COMMISSION, Appellee.
• Court: Kansas Supreme Court

Page 1007

549 P.2d 1007

219 Kan. 710

In the Matter of Gary FLANIGAN, Appellant, v. LEAVENWORTH RECREATION COMMISSION, Appellee.

No. 47974.

Supreme Court of Kansas.

May 8, 1976.

Syllabus by the Court

1. The termination (under K.S.A. 12-1912) of a recreation commission jointly sponsored by a city and a school district requires an agreement between the city and school district.

2. An ordinance (under K.S.A. 12-1913 through 12-1917) combining a city's recreation system and its park system into a single park and recreation department presupposes that the city is operating its own recreation system through its own recreation commission.

3. An attorney representing a public agency that is abolished during litigation is authorized by K.S.A.1975 Supp. 60-225 (e) to take such steps in the litigation as are necessary to protect the rights of the agency's successor until there is a substitution of parties.

4. The constitutional prohibition against the impairment of contracts applies to obligations of a municipal corporation, and such obligations cannot be avoided by the simple expedient of dissolving the municipality.

5. Where a municipality goes out of existence and no legislative provision is made for its outstanding obligations, a municipality which acquires the assets, territory and tax base of the dissolved municipality will also acquire its liabilities.

6. When a recreation commission is dissolved and its assets are taken over and its functions continued by a city while litigation is pending against the commission, the city becomes the legal successor to the recreation commission and may be substituted for it in the pending litigation.

Roger W. Lovett, of the Kansas commission on civil rights, Topeka, argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for appellant.

Robert D. Beall, City Atty., argued the cause and was on the brief for appellee.

FOTH, Commissioner:

This proceeding was initiated as a complaint by Gary Flanigan to the Kansas commission on civil rights (KCCR), claiming that he had been discharged from his employment by the Leavenworth Recreation Commission in violation of the Kansas act against discrimination. In due course the KCCR entered an award of damages in his favor including, we surmise, back pay. Counsel for the Recreation Commission filed a motion for rehearing and, when that was overruled, a notice of appeal to the district court. There summary judgment was entered setting aside KCCR's order on the grounds that the Leavenworth Recreation Commission had ceased to exist and there was no person or agency responsible for its outstanding obligations. The KCCR has appealed.

The following chronology of events is gleaned from the record and briefs, except that those events prefaced by (?) do not appear in either source and a question exists as to whether or not they ever occurred:

1948. Leavenworth Recreation Commission approved by electors and created under K.S.A. 12-1901 et seq. as a joint enterprise of the city of Leavenworth and its school district.

August, 1971. Flanigan complaint filed with KCCR.

June 26, 1973. Public hearing on complaint.

November 10, 1973. Hearing examiner's recommended findings of fact, conclusions of law and order forwarded to KCCR.

(?) City and school district agree under K.S.A. 12-1912 to terminate their joint recreation commission. City establishes its own recreation system operating by its own recreation commission.

(?) City publishes for two consecutive weeks notice of intent under K.S.A. 12-1914 to combine its recreation system with its park department, and waits twenty days for a protest petition.

November 27, 1973. City governing body adopts Ordinance No. 6158, combining the city's recreation system and its park system into a single park and recreation department.

November 30, 1973. Ordinance No. 6158 published.

December 1, 1973. KCCR files its order, adopting examiner's report with amendments.

December 14, 1973. (Amended) application for rehearing filed in the name of the 'Leavenworth Recreation Commission,' and subsequently denied by KCCR.

January 15, 1974. Notice of appeal to district court filed in name of 'Leavenworth Recreation Commission.'

February 9, 1974. KCCR files motion to set case for trial and to limit issues.

June 20, 1974. Motion to dismiss filed by counsel of record for the recreation commission on the grounds that the 'Leavenworth Recreation Commission' no longer exists. Attached was a copy of Ordinance No. 6158.

November 13, 1974. Trial court inquires of counsel by letter whether motions are ripe for decision.

November 27, 1974. Counsel for KCCR responds, pointing out that Ordinance No. 6158 doesn't prove that the 'Leavenworth Recreation Commission' doesn't exist, suggesting that its existence would be a proper issue to determine at trial, and requesting the court to rule on the motions.

April 23, 1975. Trial court files memorandum opinion treating the motion to dismiss as one for summary judgment and sustaining it.

In its opinion the trial court found that the city and school district were authorized by K.S.A. 12-1912 to dissolve the recreation commission, and had done so. The latter finding was apparently based solely on Ordinance No. 6158, combining the city's park and recreation systems. The court thus went on:

'This Court concludes that the Leavenworth Recreation Commission ceased to exist on November 30, 1973; that there is no statutory authority for the City of Leavenworth to assume any of the liabilities or responsibilities of the previously existing Leavenworth Recreation Commission; that future levies are restricted by statute for recreation purposes only; that the present action has been abated; that respondent is entitled to judgment as a matter of law setting aside the order of the Kansas Commission on Civil Rights dated December 1, 1973 . . ..'

On appeal the KCCR designates nine separate points of error, but they may be restated into the following three propositions:

1. There was no competent evidence on which the trial court could base its finding that the 'Leavenworth Recreation Commission' had been abolished according to law.

2. If the recreation commission had been abolished on November 30, 1973, as found by the trial court, then there was no body having the legal capacity to file in its name the motion for rehearing of December 14, 1973, the notice of appeal of January 15, 1974, or the motion to dismiss of June 20, 1974. If there was no one to appeal to the district court, the argument goes, that court should have dismissed the appeal rather than grant the relief it did to a nonexistent party.

3. Again assuming the recreating commission was in fact abolished, the trial court was wrong in finding that the city did not succeed to its outstanding liabilities as well as its assets.

Since we agree at least in part with all three propositions we find it necessary to reverse the judgment and remand the case for further proceedings.

First, it seems apparent that whether or not the Leavenworth Recreation Commission had been abolished was a disputed issue, and was the controlling fact. Counsel for the KCCR was unwilling to concede the fact, so it was necessary to have some sort of proof. The statute (K.S.A. 12-1912) under which the city and school district purported to act says that '(a)ny city . . . may enter into an agreement with the school district in which it is located to terminate the recreation commission thereof . . ..' The statute clearly requires an agreement. No evidence of such an agreement appears in the record except such as appears in Ordinance No. 6158. In pertinent part it provides:

'WHEREAS, the Leavenworth Recreation Commission was established under authority of Article 19, Chapter 12, of the Kansas Statutes Annotated, which provided for the operation of the recreation system under joint control of the Board of Education and the Governing Body of the City of Leavenworth, Kansas; and

'WHEREAS, K.S.A. 12-1912 through K.S.A. 12-1917 provides for the City and School District to terminate the Recreation Commission; and

'WHEREAS, the Board of Education, Unified School District No. 453, and the City of Leavenworth, Kansas, after study and consultation, agree it would be in the best interest of the recreation program and the public generally, to terminate the Recreation Commission as it now exists and to make recreation a function exclusively of said city using said school facilities as may be available, and;

'WHEREAS, the city desires to retain the services of the members of the present Recreation Commission in an advisory capacity to be known as the Park and Recreation Advisory Board.

'NOW, THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF LEAVENWORTH, KANSAS:

Section 1. That the park system and the city public recreation system be combined to form a park and recreation department.

'Section 2. All property under the control and jurisdiction of either such system shall, upon the effective date of this ordinance, be transferred to the Park and Recreation Department which shall, thereafter, administer the City's Park and Recreation System.

'Section 3. The members of the Recreation Commission at the time of the effective date of this ordinance, shall constitute the Park and Recreation Advisory Board.'

While the ordinance recites the existence of an agreement in its preamble, the ordinance obviously is a unilateral document and is not itself an agreement. It was adopted under an act (Laws 1965, ch. 121, §§ 1-5, now K.S.A. 12-1913 through 12-1917) dealing with cities which have their own recreation systems. That act has nothing to do with the abolition of a joint city-school district recreation commission like the Leavenworth Recreation Commission. Abolition is covered by § 12-1912 (originally Laws 1965, ch. 110, § 3).

Thus, for the ordinance to operate in the fashion contemplated by the statutes would require: an agreement between the city...