Halford v. City of Topeka, 55448

• Citation: 234 Kan. 934,677 P.2d 975
• Decision Date: 18 February 1984
• Docket Number: No. 55448,55448
• Parties: In the Matter of Officer Gregory C. HALFORD, Appellee, v. The CITY OF TOPEKA, a Municipal Corporation; the Topeka Police and Fire Civil Service Commission, an Agency of the City of Topeka, Appellants.
• Court: United States State Supreme Court of Kansas

Page 975

677 P.2d 975

234 Kan. 934

In the Matter of Officer Gregory C. HALFORD, Appellee, v. The CITY OF TOPEKA, a Municipal Corporation; the Topeka Police and Fire Civil Service Commission, an Agency of the City of Topeka, Appellants.

No. 55448.

Supreme Court of Kansas.

Feb. 18, 1984.

Syllabus by the Court

1. The failure to designate an appeal to the district court as being brought under K.S.A. 60-2101(d ) is held not to be a fatal defect under the facts herein.

2. The filing of copies of the proceedings appealed from with the clerk of the district court three weeks after the filing of the notice of appeal is held to be in compliance with K.S.A. 60-2101(d ).

3. In an appeal by a city and a civil service commission from a judgment of the district court declaring the police chief's order for an immediate fifteen-day suspension of a police officer without pay, and the civil service commission's order, after hearing, for a ninety-day suspension of a police officer without pay, were both unlawful, the record is examined and it is held: (1) the district court had jurisdiction to hear the matter; (2) the district court did not err in concluding the fifteen-day suspension was unlawful; and (3) the district court erred in concluding the ninety-day suspension was unlawful, all as is more fully set forth in the opinion.

Henry R. Cox, Asst. City Atty., argued the cause and Lori M. Callahan, legal intern, was with him on the brief for appellants.

Robert D. Hecht, of Scott, Quinlan & Hecht, Topeka, argued the cause and was on the brief for appellee.

McFARLAND, Justice:

Plaintiff Gregory C. Halford, a Topeka police officer, was suspended on December 17, 1980, for 15 days without pay by the defendant City's Chief of Police Fred Howard. The suspension was entered without a hearing. At the time of the suspension, the chief of police sent a letter to the defendant Topeka Police and Fire Department Civil Service Commission asking for plaintiff's termination and the Commission to continue plaintiff's suspension until it issued its final order. The Commission issued no order continuing the suspension in the interim period. Hearing was had on the merits of the charges and the Commission issued its order on February 12, 1981, demoting plaintiff one rank and suspending plaintiff for 90 days without pay. Plaintiff did not work for the police department and was not paid for the interim period between the expiration of the 15-day suspension and the time the Commission issued its final order, a period of approximately 45 days. The Commission credited plaintiff with these days he had been off work without pay, which left approximately 45 days of the Commission's 90-day suspension to be served (which has since been satisfied). Plaintiff appealed to the district court which held the demotion was lawful, but the two suspensions without pay (totalling 105 days) were unlawful, thereby entitling plaintiff to 105 days back pay. Defendants City and Civil Service Commission seek appellate review of the judgment of the district court.

The facts giving rise to disciplinary actions being taken against Officer Halford may be summarized as follows. Plaintiff was a corporal with the traffic safety unit of the Topeka Police Department at all times in question. Additionally he served extra shifts (for additional pay) in the specially funded Alcohol Safety Action project (ASAP). Officer Halford usually worked the night shift and his assignment involved being on the streets alone in a police vehicle.

On November 27, 1980, a notice appeared in the Topeka Capital-Journal stating Officer Halford was the defendant in an action filed by the State of Kansas seeking child support. This notice prompted an investigation by a Topeka Police Department internal affairs officer. The following uncontroverted facts were disclosed. Officer Halford was married. Officer Halford had admitted paternity of a child born April 7, 1980, to Carol H., an unmarried woman (Officer Halford had acknowledged paternity in a sworn "Acknowledgement of Paternity" executed on November 25, 1980, and filed in the support action the same day). Carol H. was, at all time pertinent hereto, a PBX operator with the Topeka Police Department. Additionally, the investigation revealed Officer Halford made many trips in uniform to the residence of Carol H. while he was on duty. In any event, when Chief of Police Fred Howard was advised of the results of this investigation, he issued his order suspending plaintiff for 15 days without pay and sought his termination by the Civil Service Commission, all as previously noted. Other facts will be stated as are necessary in the consideration of particular issues.

The first issue is whether the district court had jurisdiction to review the orders of the Topeka Police and Fire Department Civil Service Commission and the Police Chief relative to the discipline of Officer Halford. This issue is actually a three-pronged challenge to jurisdiction. First appellants contend plaintiff's failure to plead a jurisdictional basis for his appeal to the district court rendered the appeal fatally defective. We do not agree. It is agreed there is no statute specifically authorizing the appeal herein. Therefore, the appeal to the district court came under K.S.A. 60-2101(d ) which provides:

"(d ) A judgment rendered or final order made by an administrative board or officer exercising judicial or quasi-judicial functions may be reversed, vacated or modified by the district court on appeal. If no other means for perfecting such appeal is provided by law, it shall be sufficient for an aggrieved party to file a notice that such party is appealing from such judgment or order with such board or officer within thirty (30) days of its entry, and then causing true copies of all pertinent proceedings before such board or officer to be prepared and filed with the clerk of the district court in the county in which such judgment or order was entered."

The appeal filed does not specifically state it is being taken pursuant to K.S.A. 60-2101(d ). However, the pleadings filed clearly show it is an appeal rather than an attempted original action. K.S.A. 60-2101(d ) is the only statute under which the appeal herein could have been taken. The notice of appeal was filed within the statutory 30-day period. We conclude, under the circumstances herein, the failure specifically to plead the appeal was being taken pursuant to K.S.A. 60-2101(d ) did not deprive the district court of jurisdiction to hear the matter.

Appellants herein next contend Officer Halford's appeal to the district court was never perfected and should have been dismissed. This assertion is predicated upon the fact Officer Halford filed his notice of appeal on February 19, 1981 (the date being erroneously asserted by appellants as February 12, 1981), but did not cause copies of the proceedings appealed from to be filed until March 12, 1981. Appellants contend this is not in compliance with K.S.A. 60-2101(d ) which requires copies of the proceedings appealed from to be filed with the clerk of the district court. On the same day Officer Halford filed his appeal, his attorney requested copies of the proceedings before the Commission. We conclude the filing of the copies of the proceedings within a month of the time the order was filed and within three weeks of the filing of the appeal is in compliance with the requirements of K.S.A. 60-2101(d ).

Finally, appellants contend Officer Halford's notice of appeal to the district court was void for inadequacy. The notice of appeal clearly specifies what order is being appealed and to whom the appeal is being taken. This point is also without merit.

After considering all jurisdictional challenges asserted by appellants herein, we conclude the district court had jurisdiction to hear Officer Halford's appeal.

The second issue on appeal is whether the district court erred in holding the police chief's 15-day suspension of Officer Halford without pay was unlawful.

The Code of the City of Topeka § 2b-233 (1975), now codified as § 31-203 (1981), states:

"Departmental Regulations. The head of any department may formulate in writing reasonable administrative regulations for the conduct of the department which shall be available to all departmental employees; Provided, that nothing herein shall be construed as granting any department authority to adopt regulations in violation of, or in conflict with, personnel regulations as set out in Chapter 2b, Code of the City of Topeka, 1970, and amendments thereto. (Ord. 13191, § 2, 1-10-72.)" (Emphasis supplied.)

The Code of the City of Topeka § 2b-235 (1975), now codified as § 31-309 (1981), provides:

"[Disciplinary Action ]; Suspension; Discharge. Employees who wilfully violate city personnel rules and/or departmental regulations may be suspended without pay for not to exceed 15 calendar days for any given offense; Provided, however, that no person shall be suspended until he first has been given a reprimand in writing warning him that continuation or repetition of the offense will result in suspension or discharge; Provided further, that certain offenses, including but not limited to, drinking on the job, assault, wilful refusal to obey an order or offenses of a like nature shall be cause for immediate suspension and filing of charges before the Civil Service Commission. (Ord. 13191, § 4, 1-10-72.)" (Emphasis supplied.)

Finally, the Code of the City of Topeka § 21-106(c) (1975), now codified as § 34-21(c) (1981), states:

"Duty Manuals; Regulations. The Chief of Police may, from time to time, prepare and issue duty manuals for the members of the Department and with the approval of the Mayor, the Board of Commissioners or the Civil Service Board, prescribe rules and regulations which pertain to the conduct of the Police Department and performance of duties of its members. The regulations shall fix and establish lines of...