Jones v. Kansas State University

• Decision Date: 18 February 2005
• Docket Number: 475.,No. 90,90
• Citation: 106 P.3d 10,279 Kan. 128
• Parties: GARY F. JONES, Appellant, v. KANSAS STATE UNIVERSITY, Appellee.
• Court: Kansas Supreme Court

279 Kan. 128

106 P.3d 10

GARY F. JONES, Appellant, v. KANSAS STATE UNIVERSITY, Appellee.

No. 90,475.

Supreme Court of Kansas.

Opinion filed February 18, 2005.

COPYRIGHT MATERIAL OMITTED

Luke B. Harkins, of Steve A. J. Bukaty, Chartered, of Overland Park, argued the cause, and Steve A. J. Bukaty, of the same firm, was with him on the briefs for appellant.

Richard H. Seaton, of Office of University Attorney, Kansas State University, of Manhattan, argued the cause, and was on the briefs for appellee.

The opinion of the court was delivered by

DAVIS, J.:

Gary Jones was terminated from his position as a police officer with the Kansas State University Police Department (KSU Police) for gross misconduct or conduct grossly unbecoming a state officer or employee pursuant to K.S.A. 75-2949f(a). In subsequent appeals, the Kansas Civil Service Board (Board) and the district court upheld the termination. The Court of Appeals reversed and remanded with instructions to reinstate Jones with back pay and benefits in Jones v. Kansas State University, 32 Kan. App. 2d 322, 325-26, 81 P.3d 1243 (2004). This court granted the Kansas State University's (KSU) petition for review and has jurisdiction pursuant to K.S.A. 60-2101(b).

Gary F. Jones was employed as a police officer with the KSU Police beginning in January 1997. On August 26, 2001, Jones was riding with Student Security Officer Pharaoh Guice when he stopped a vehicle driven by Gretchen Esping for speeding.

Most of the traffic stop was recorded by a video camera in Jones' police car. The videotape reflects that Esping pulled over approximately 6 feet from the curb, parallel to the curb but perpendicular to the marked parking spaces. Jones approached the vehicle, asked to see her driver's license, and advised her that she was going at least 32 miles per hour in a 20 miles per hour zone. Jones ran a license check, which revealed that Esping's license had been suspended in March 2001. Jones relayed this information to Esping, who denied knowledge of the suspension. Jones told her that by law he had to write her a citation and could not let her drive the car but she could have someone drive the car home for her. When Jones told her that he had to make a criminal report, Esping became upset and started crying.

Jones returned to his car to verify the suspension. At this point, Jones asked Guice to make sure that the stop was being videotaped because "this lady is gonna be a problem." Jones then went back and advised Esping that the dispatcher had confirmed the suspension for the third time and asked Esping for her address. Esping, who was still crying, gave Jones her address and said that she lived at the end of the block. Esping told Jones that she wanted to know what court had suspended her license. Jones returned to his car to write out the traffic citation and to get that information for her. Upon returning to his car, Jones again told Guice, "I'm gonna let this run and run. I do not want that turned off for any reason. Any reason."

Jones returned to Esping's vehicle, asked Esping to sign the citation, and advised her of the court date. Esping told Jones that he would have to appear in court with her lawyer, and Jones asked if she was threatening him. Esping initially refused to sign the citation and tried to explain to Jones that she was never informed that her license had been suspended and that it was not suspended. Jones informed her that if she did not sign the citation he would have to put her in handcuffs and take her to jail. Esping then asked Jones to drive her car home. Jones told her that he could not do that but that he would give her a ride home or she could walk home and he would make sure that her car did not get towed. After Jones repeatedly told Esping that signing the citation was not an admission of guilt, Esping finally signed and accepted the ticket.

Esping started crying again and asked Jones if he could follow her home, and he refused. After explaining the ticket to her, Jones asked again if he could give her a ride home. She asked again if she could just take her car down to the corner to get her groceries to her home. Jones responded, "Okay. One second. One second. I want to tell you something. One second." He walked back to the police car and said, "Kill the lights, kill all my lights." This deactivated the camera, and nothing more of the stop was recorded. Later that night, Jones completed a report of the incident which provided in relevant part:

"At this time I informed the suspect that her license was suspended, and that I would issue her a notice to appear (citation # 6638) and she would be released at the scene, the suspect vehicle was legally parked at the time of the stop so the driver agreed to leave the vehicle where it was until she could have a friend drive her vehicle to her apartment building."

Approximately a month later, Esping filed a complaint claiming that Jones threatened her or conducted himself in a manner that caused her to have concern for her safety. The KSU Police began an internal investigation of the traffic stop. Captain Charles Beckom conducted the investigation and reviewed the videotape, the tape log, the in-car camera policy, and interviewed various witnesses, including two neighbors of Esping, Ahmed Elshahawi and Samir El-Zarkouny, and Esping, Guice, and Jones.

Esping told Captain Beckom that after ordering Guice to turn off the video camera, Jones said, "My wife is German and you and I are about the same age. . . . Tell you what. You give us two minutes to get out of here and then you go park your car in front of your apartment and don't drive it again until this is cleared up." Guice verified that Jones told him to turn off the camera, spoke with Esping for about 10 seconds, and said something "to the effect of her doing what she wanted to do after he left the area."

Jones told the investigator that he turned off the videotape for about 2 minutes because he did not want anyone to hear him telling Esping that "he was not going to watch her when they left" and so that the KSU Police would not use it against him for being a caring person. Jones also admitted that he went to Esping's apartment later that day to tell her about the teletype reflecting the suspension of her driver's license. He also went to her apartment about a month later to ask for a statement after he learned he was being investigated for the incident.

On December 13, 2001, KSU Police Director Ronnie Grice sent a letter to KSU Director of Human Resources Gary Leitnaker requesting that Jones be terminated immediately because Jones knowingly submitted false information in his police report and also violated the in-car camera policy by turning off the camera before the traffic stop was terminated to intentionally prevent any recording of the conversation at the end of the stop. However, the investigation had concluded that insufficient evidence was presented to support Esping's claim that Jones threatened her or conducted himself in a manner that caused her to have concern for her safety.

On December 14, 2001, Leitnaker sent Jones a letter informing him that the KSU Police requested his dismissal for the reason of gross misconduct or conduct grossly unbecoming a state officer or employee in violation of K.S.A. 75-2949f(a). Jones was advised that he could submit any information to Leitnaker on his behalf. After Leitnaker and Jones met on December 19, 2001, Leitnaker continued to recommend dismissal and informed Jones of his right to appeal to the KSU Classified Employee Peer Review Committee (PRC). The PRC, consisting of five classified employees from across the KSU campus, then conducted a hearing regarding Leitnaker's recommendation.

After the January 8, 2002 hearing, the PRC unanimously concurred with the KSU Police findings and recommendation for dismissal in concluding that Jones did submit false information in a case report regarding this traffic stop and violated the in-car camera policy that states "every traffic stop shall be recorded until the stop is terminated." Leitnaker dismissed Jones effective January 10, 2002, for reason of gross misconduct or conduct grossly unbecoming a state officer or employee and informed him of his right to appeal to the Board.

Jones filed a timely request for a hearing before the Board pursuant to K.S.A. 2003 Supp. 75-2949(f), and a hearing was held on May 21, 2002. Leitnaker, Grice, Beckom, and Guice testified on behalf of KSU Police. Leitnaker described his review of the recommendation to terminate Jones and the PRC process. On cross-examination, Leitnaker acknowledged that Jones had an Equal Employment Opportunity Commission (EEOC) charge pending at the time of his termination. Additionally, he testified that the KSU Police had attempted to terminate Jones in the past for falsifying his employment application, but the PRC had recommended that he be given a second opportunity and be placed on probation for 1 year.

KSU Police Director Grice testified that the KSU Police had received a request from the municipal prosecutor regarding the traffic stop that was made on August 26, 2001, by Jones. It took the officer in charge of that unit about a month to find the videotape of the stop because it had not been logged in and was on an 8-hour tape. Grice testified that the videotape and Jones' report of the incident did not match; therefore an internal investigation was conducted which concluded that Jones had violated the KSU Police policy by turning off the camera and by falsifying his police report.

Grice explained that he requested termination in this case because Jones created an integrity issue by covering up something that he did wrong. As an officer with the KSU Police with a credibility or integrity issue, any report, citation, or documentation produced by Jones might be thoroughly questioned by the prosecutor in any case that he would submit paperwork.

Captain Beckom opined that the...