Gorham v. City of Kansas City, 49483

• Decision Date: 24 February 1979
• Docket Number: No. 49483,49483
• Citation: 590 P.2d 1051,225 Kan. 369
• Parties: , 101 L.R.R.M. (BNA) 2290 Richard GORHAM and Alfonso Sanchez, Appellees, v. CITY OF KANSAS CITY, Kansas, Appellant.
• Court: Kansas Supreme Court

Page 1051

590 P.2d 1051

225 Kan. 369, 101 L.R.R.M. (BNA) 2290

Richard GORHAM and Alfonso Sanchez, Appellees, v. CITY OF KANSAS CITY, Kansas, Appellant.

No. 49483.

Supreme Court of Kansas.

Feb. 24, 1979.

Syllabus by the Court

1. A public employee who may be discharged only "for cause" has a property interest in continued employment; such an employee is entitled to a due process hearing before termination.

2. Due process rights may be waived.

3. The public interest requires that a police department have the authority to temporarily suspend officers immediately from duty.

4. The temporary suspension of an officer from duty and not from the payroll does not violate any constitutional right.

5. Parties to collective bargaining agreements are free to agree to procedures for the resolution of disputes in a manner which dispenses with constitutionally guaranteed rights, so long as the negotiated agreement provides a fair, reasonable, and effective procedure for the resolution of employer-employee disputes.

6. Employee's due process rights may be waived by a collective bargaining agreement.

7. A grievance board for the settlement of disputes between the city and its police officers is not prima facie partial or unfair solely because part of its members are appointed by the chief of police and all of its members are police officers.

John J. Jurcyk, Jr., of McAnany, Van Cleave & Phillips, P. A., Kansas City, special counsel for the City of Kansas City, Kansas, argued the cause, and Donald E. Martin, City Atty., Jay D. Justice, Asst. City Atty., Richard W. Noble, Jack L. Campbell, and W. Terrence Kilroy of Shughart, Thomson & Kilroy, a Professional Corp., Kansas City, Mo., special labor counsel for the City of Kansas City, Kansas, were with him on brief, for appellant.

J. R. Russell, Kansas City, argued the cause and was on brief, for appellees.

Richard B. Thompson, of Blake & Uhlig, Kansas City, was on brief amicus curiae for the Fraternal Order of Police Lodge No. 4, and Frank A. Bien, Topeka, was on the brief amicus curiae for the League of Kansas Municipalities.

MILLER, Justice:

The City of Kansas City, Kansas, the defendant below, appeals from the judgment of the Wyandotte district court, ordering the reinstatement of the plaintiffs, two Kansas City, Kansas police officers, Patrolman Richard Gorham and Sergeant Alfonso Sanchez. Stated simply, the issues before us are whether the officers had constitutionally protected rights in continued employment with the City and, if so, whether those rights were honored, waived, or violated.

The City of Kansas City, Kansas, through a majority vote of its governing body on October 2, 1975, elected to bring the City under the provisions of the Kansas Public Employer-Employee Relations Act, K.S.A. 75-4321 to 4337, inclusive. Following an election, the Fraternal Order of Police Lodge No. 4, was on November 4, 1975, certified by the Kansas Public Employee Relations Board as the exclusive bargaining representative for all patrolmen, detectives, and sergeants of the Kansas City, Kansas Police Department. The Lodge and the City conferred and reached an agreement, which was reduced to writing and set forth in a Memorandum of Understanding, which was in turn approved by a majority vote of the members of the Lodge in November, and was adopted by the City in December, 1975. Plaintiff Gorham was a patrolman, and plaintiff Sanchez a sergeant, on the Kansas City, Kansas Police Department, at all times here material. Both were members of the Lodge.

Articles 14 and 15 of the Memorandum of Understanding read as follows:

"ARTICLE 14: DISCIPLINE

"The Lodge recognizes that the Chief has the responsibility for maintaining discipline and the efficient and orderly operation of the Department. Accordingly, the authority to discipline officers is vested exclusively in the Chief. However, the Chief may from time to time delegate this authority to subordinate officers above the rank of Sergeant. The Lodge shall be notified in writing of the extent of the delegation and the rank of the officers in whom the delegated authority is vested.

"Officers, excluding probationary officers, shall only be disciplined or discharged for just cause. Discipline or discharge for cause shall include, but shall not be limited to, discipline or discharge for violation of Department Rules and Regulations, General or Special Orders.

"An officer may be suspended for up to four (4) days without being afforded an opportunity to protest the suspension prior to its implementation. Suspension of over four (4) days shall not be effectuated without the officer being allowed to protest the suspension prior to implementation. Prior to any officer being discharged, he shall be placed on suspension during the pendency of any protest of the proposed discharge.

"ARTICLE 15: GRIEVANCE PROCEDURE

"In the event of any complaint or grievance arising under the terms and provisions of the Memorandum or of any differences between the parties as to the interpretation or application of this Memorandum, it shall be processed through the grievance procedure. There shall be no right of grievance as to any subject properly falling within the management rights of the City or the Police Department. . . .

"The parties shall make sincere and determined efforts to settle meritorious grievances at the voluntary steps of the grievance procedure . . . .

"Step 4. If no settlement is reached by the procedure above outlined, the matter shall be referred to the Grievance Board, hereinafter described, for settlement. . . . References to the Grievance Board shall be made jointly by the parties within seven (7) work days after Step 3 or be considered as having been dropped. The Grievance Board shall be composed of three (3) duly designated Lodge representatives (or alternates); and three (3) duly designated Department representatives (or alternates) of the rank of Lieutenant or above, selected by the Chief. The respective members of the Joint Board shall be appointed effective January 1, of each year and shall serve for one (1) year. The Grievance Board shall meet promptly upon call but in any event not later than fifteen (15) days after the grievance has been referred to it. A majority vote of the Grievance Board on a grievance shall be final and binding on both parties. The deliberations of the Grievance Board shall be confidential. The parties will be advised of the vote of the Grievance Board on a particular grievance, but the manner in which the individual members voted shall not be announced." (Emphasis supplied.)

The Memorandum of Understanding was effective throughout the calendar years 1976 and 1977.

On March 20, 1976, Officer Gorham and Sergeant Sanchez, both of them were off duty, were apprehended by officers of the Kansas City, Kansas vice squad at a "smoker" where felony violations of the gambling laws were occurring. Gorham and Sanchez were relieved of their police commissions on the spot, and both were ordered to report to the Chief on the following Monday, March 22, 1976. On that date the Chief suspended both officers. He handed each of them a letter stating in substance that each officer had violated three specific sections of the Departmental Rules and Regulations; that such conduct constituted a major violation; and that "effective March 20, 1976, your employment will be suspended and effective March 30, 1976 your employment will be terminated."

Promptly, and within 48 hours after receiving the letter from the Chief, both officers requested a hearing before the Grievance Board. The Board, composed of three members designated by the Chief and three members designated by the Lodge, met on April 8, 1976. Gorham and Sanchez appeared in person at the hearing and each was represented throughout the proceedings by an attorney. Opportunity was given to plaintiffs' counsel to cross-examine the City's witnesses, and plaintiffs each had the opportunity to testify and to present evidence and witnesses on their behalf. The Board found both officers guilty of violating the three designated departmental rules; it reduced the penalty as to Officer Gorham to suspension for the period of one year, but let stand the penalty (termination of employment) as to Sergeant Sanchez.

Plaintiffs then each filed a Notice of Claim with the City, and when those claims were denied, plaintiffs filed actions, later consolidated, seeking reinstatement and back pay, asserting that each was wrongfully discharged in violation of his right to due process. Both sides moved for summary judgment, and the trial court sustained the motion of plaintiffs and entered summary judgment for them. In its comprehensive memorandum decision, the court found that plaintiffs were both beyond the probationary period, and that both were vested with a property interest in continued employment which could not be taken away without due process. The court cited and relied upon Wertz v. Southern Cloud Unified School District, 218 Kan. 25, 542 P.2d 339 (1975); Stout v. Whiteaker, 379 F.Supp. 218 (M.D.Tenn.1974) and Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); and Endicott v. Van Petten, 330 F.Supp. 878 (D.Kan.1971). The trial court also found that plaintiffs also had a "liberty interest" in their good names, reputations, honor, and integrity which was entitled to due process protection.

The trial court found that the Lodge as a collective bargaining agent could not waive its members' right to due process; that there was no voluntary or knowing waiver by plaintiffs of their right to due process; that no waiver could be inferred by their mere acceptance of benefits under the memorandum or by requesting a hearing before the Grievance Board; and that the tender of a hearing After discharge does not fulfill the constitutional requirement of due process. Finally, the court found that...