LeCounte v. City of Wichita, 48916

• Decision Date: 09 December 1978
• Docket Number: No. 48916,48916
• Citation: 225 Kan. 48,587 P.2d 310
• Parties: Roy LeCOUNTE, Appellant, v. CITY OF WICHITA, Kansas, a municipal corporation, and Wichita Employees Retirement Board, Appellees.
• Court: Kansas Supreme Court

Page 310

587 P.2d 310

225 Kan. 48

Roy LeCOUNTE, Appellant, v. CITY OF WICHITA, Kansas, a municipal corporation, and Wichita Employees Retirement Board, Appellees.

No. 48916.

Supreme Court of Kansas.

Dec. 9, 1978.

Syllabus by the Court

To perfect an appeal under K.S.A.1975 Supp. 60-2101(A ), a person aggrieved by the decision of an administrative board or officer is required to file a notice of appeal with the board or officer within 30 days of the entry of the order or judgment. Thereafter, the aggrieved party has a reasonable time to have prepared and filed with the district court the full record of the proceedings had before the administrative board or officer.

Richard D. Cordry, of Michaud & Cranmer, Chartered, Wichita, argued the cause, and Russell E. Cranmer, Wichita, was with him on the brief for appellant.

Eugene L. Pirtle, First Asst. City Atty., argued the cause, and John Dekker, Wichita, was with him on the brief for appellees.

PRAGER, Justice:

This is an appeal by a former employee of the city of Wichita from the denial of a hearing on his application for a disability pension. The defendants are the Wichita Employees Retirement Board and the city of Wichita. The district court granted summary judgment in favor of the defendants without making any findings of fact or conclusions of law and without giving any reasons for its ruling.

For purposes of this appeal, the facts in the case are not in dispute and are as follows: The plaintiff, Roy LeCounte, was employed by the city of Wichita as an automobile mechanic and welder for a period of ten years. The nature of the plaintiff's work was such that he was exposed to toxic fumes. In February of 1974, a physician examined the plaintiff and concluded that he was suffering from a chronic lung disease which had been present at least three years. According to the plaintiff, he requested that the city install a more effective ventilation system for his work area or allow him to bring his own fan. These requests were denied by the city. As a result of a violent coughing spasm, LeCounte suffered a fractured rib and was absent from work from March 24, 1975, to May 12, 1975. After returning to work, LeCounte was sent by the city to a local clinic for a medical diagnosis. The city then informed the plaintiff that he had the option of either applying for retirement or being dismissed by the city. Thereafter, on May 22, 1975, the plaintiff applied for retirement benefits. He retired from his job with the city on May 27, 1975. It is the plaintiff's position that, at the time he applied for and received retirement benefits, both he and the city officials were not aware of the seriousness of his health problem. In the period following his retirement, the plaintiff found employment as an automobile mechanic, but was unable to continue that work due to his physical condition. In October of 1975, the plaintiff was granted a total disability rating by the Social Security Administration based upon his obstructive pulmonary disease.

At this time the plaintiff realized that he should have made claim for a disability retirement from the city rather than a regular retirement. In January of 1976, the plaintiff applied to the Wichita Employees Retirement Board for a hearing to determine whether he was entitled to receive disability retirement benefits rather than the nondisability retirement benefits which he was currently receiving. With his application, the plaintiff submitted letters from two physicians in support of his claim. Plaintiff and his counsel appeared before the retirement board on February 4, 1976. At that time, plaintiff's application was deferred pending receipt of a legal opinion from the city attorney's office. The assistant city attorney thereafter submitted an opinion recommending that the plaintiff be advised by the board's secretary that there was no authority for the retirement board to reopen and review his application for a disability pension. On March 8, 1976, the board notified the plaintiff that his retirement status would not be reopened or his application considered. The apparent reasons for the retirement board's action were (1) that there was not a specific administrative section providing for a hearing to consider a change of classification; (2) that such a reclassification would be a dangerous precedent; and (3) that the plaintiff previously had his one chance to apply for disability benefits and, having failed to do so, was barred from any further consideration of his claim. It is important to note at this point that the plaintiff was denied any opportunity to have a hearing to introduce evidence in support of his claim.

On March 30, 1976, the plaintiff filed a notice of appeal with the director of the Wichita Employees Retirement Board which notified the board that LeCounte had appealed from the order and judgment made by the board on March 8, 1976. The accompanying letter stated that the notice of appeal was filed pursuant to K.S.A.1975 Supp. 60-2101(A ). The next day, March 31, 1976, plaintiff's counsel wrote a letter to the Wichita city manager requesting that the Board of City Commissioners review the decision of the retirement board and further requesting that his claim be placed on the agenda of the city commission at its next regular meeting. This review by the city commission was requested pursuant to 2.12.020(9), of the municipal code of the city of Wichita. That ordinance is a general ordinance pertaining to the organizational structure of appointive boards and commissions of the city. It provides:

"2.12.020. . . . Organizational structure of appointive boards and commissions. The following rules and regulations shall govern the organizational structure of appointive boards and commissions of the city.

"(9) The board of commissioners shall reserve the right to review all decisions of subsidiary boards and commissions except as may be provided otherwise by law, in order that aggrieved citizens may have the right of appeal to an elected body from the decision of an appointive body of the city."

Plaintiff's counsel concluded that this section gave to the plaintiff a right of appeal to the city commission and that he was obligated to exhaust his administrative remedies before turning to the court for relief. On April 27, 1976, the city summarily denied the plaintiff a hearing on his claim. On May 17, 1976, the plaintiff filed a notice of appeal with the city commission and also with the Wichita Employees Retirement Board, notifying them that the plaintiff had appealed to the district court from "the rulings, findings, orders, awards, and judgments" of the city commission and of the Wichita Employees Retirement Board. Also on May 17, 1976, the plaintiff filed with the clerk of the district court of Sedgwick county a "Petition and Appeal" setting forth in substance the nature of his claim and the actions of the retirement board and the city commission in denying him a hearing on his claim. In his petition and appeal, plaintiff alleged that the retirement board and the city commission had acted arbitrarily and capriciously in dismissing his application without affording him an opportunity for a hearing and that as a result thereof he had been denied due process of law. Plaintiff prayed that he be granted a trial in the district court on the issue of whether the retirement board and the city commission had acted arbitrarily and capriciously in denying him a hearing on his claim for a service connected disability.

Neither of the defendants filed an answer in the action. On July 7, 1976, however, they filed a motion to extend the time to object and/or answer to all of the plaintiff's interrogatories. On July 16, 1976, the district court ordered the defendants to answer the interrogatories by September 7th. On July 23, 1976, both defendants filed a motion to dismiss the petition and appeal asserting three grounds for dismissal: (1) lack of subject-matter jurisdiction, (2) failure to state a claim upon which relief can be granted, and (3) failure to take a timely appeal to the district court in compliance with the requirements of K.S.A.1975 Supp. 60-2101(A ) by docketing the appeal within 30 days. On August 6, 1976, the motion to dismiss was overruled. On October 21, 1976, the plaintiff filed a motion for summary judgment. From the allegations contained in the plaintiff's motion, it appears that the defendants had refused to file an answer or comply with requests for discovery. On October 22, 1976, the defendants filed a motion for summary judgment which raised all of the grounds previously raised in their earlier motion to dismiss which had been overruled.

On November 3, 1976, the district court made the following rulings as shown by the journal entry: (1) The plaintiff's motion for summary judgment was overruled; (2) the motion of the defendants for summary judgment was sustained; (3) the motion for extension of time filed by the defendants was determined to be moot; and (4) the costs of the action were charged to the plaintiff. The trial court made no findings of fact, stated no conclusions of law controlling its...