Perry v. Board of County Com'Rs, 94,707.

• Decision Date: 05 May 2006
• Docket Number: No. 94,707.,94,707.
• Citation: 132 P.3d 1279
• Parties: Shari PERRY, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF FRANKLIN, Roy Dunn, in his Individual and Official Capacities, Donald Hay, in his Individual and Official Capacities, John Taylor, in his Individual and Official Capacities, Donald Stottlemire, in his Individual and Official Capacities, and Donald Waymire, in his individual and Official Capacities, Appellees.
• Court: Kansas Supreme Court

132 P.3d 1279

Shari PERRY, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF FRANKLIN, Roy Dunn, in his Individual and Official Capacities, Donald Hay, in his Individual and Official Capacities, John Taylor, in his Individual and Official Capacities, Donald Stottlemire, in his Individual and Official Capacities, and Donald Waymire, in his individual and Official Capacities, Appellees.

No. 94,707.

Supreme Court of Kansas.

May 5, 2006.

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Penny R. Moylan, of Bennett & Hendrix, L.L.P., of Topeka, argued the cause, and Mark L. Bennett, Jr., of the same firm, was with her on the brief for appellant.

Carl A. Gallagher, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, argued the cause, and Brian J. Zickefoose, of the same firm, and Blaine Finch, county counselor, were with him on the briefs for appellees.

Judith A. Moler, general counsel, was on the brief for amicus curiae Kansas Association of Counties.

Teresa L. Sittenauer, of Fisher, Patterson, Sayler & Smith, L.L.P., was on the brief for amicus curiae Kansas County Officials Association.

The opinion of the court was delivered by NUSS, J.:

This case concerns the relationship between an elected county official and her county. After the Franklin County Board of County Commissioners passed a resolution assigning the preparation of county employees' payroll to the newly created Human Resources Department, Shari Perry, the county clerk, sought declaratory and injunctive relief. She claimed the resolution was contrary to state law, void, and unenforceable because payroll preparation was her statutory duty. Perry appeals the district court's granting of summary judgment to the county.

The issues on appeal, and our accompanying holdings, are as follows:

1. Did the district court err in addressing the merits of the action? No.

2. Did the district court err in holding that the preparation of payroll is not a statutorily mandated duty of the county clerk? No.

3. Did the district court err in holding that K.S.A. 12-3903 does not apply to the present case? No.

Accordingly, we affirm.

FACTS

In December 1996, the Franklin County Board of County Commissioners (Board) enacted a resolution that created a Department of Personnel and Purchasing. Among other things, the department was responsible for preparing and performing all related payroll functions for the county. In July 1999, the Board enacted a resolution that terminated the Department of Personnel and Purchasing and consolidated its duties, including payroll, with the county clerk. In July 2004, the Board adopted Resolution 04-63, creating the Franklin County Human Resources Department (HRD) and providing that "preparation of the County's payroll shall be carried out by the County Clerk's Office." The HRD was charged with handling most county employee personnel matters.

On March 2, 2005, however, the Board adopted Resolution 05-21, amending Resolution 04-63. Among other things, the new resolution provided that the HRD, and not the county clerk, would now prepare the county employee payroll. The resolution states in relevant part:

"2. In addition to the duties conferred upon the Human Resources Department in Resolution 04-63, subsection (4), the Human Resources Department shall also undertake the responsibility of preparing the payroll of county employees. This duty shall include but not be limited to: the collection of time worked by employees, the preparation of all payroll checks or deposits, except that all signatures required by statute to be placed upon the checks shall still be required by the proper party, the preparation of all necessary payroll reports for outside agencies, the preparation of all necessary W-2 forms, the management of all taxable reimbursements, the contract for all outside agencies regarding, KPERS, Department of Labor, pensions, employee benefits, and shall have the responsibility for ensuring county compliance with all applicable state and federal regulations.

"3. It shall be the duty of the Human Resources Department to prepare a statement each time a payroll is complete detailing the amounts to be paid in compensation by each department and the line items from which the funds are to be taken. This information is to be presented to the County Clerk for the purpose of allowing the clerk to perform any necessary function expressly stated in K.S.A. § 19-301 et seq." (Emphasis added.)

That same month, Perry, who had been county clerk since 1997, filed a Petition for Restraining Order and Injunction and Declaratory Judgment in the district court of Franklin County. The petition alleged that Resolution 05-21 would: (1) eliminate the county clerk's statutorily mandated duty of performing payroll function without the consent of the county clerk or presenting the same for election; (2) consolidate a function of the county clerk's office without a sufficient factual basis; and (3) usurp the county clerk's authority and duty over her office's personnel matters. Accordingly, Perry sought to prevent the Board from "(1) enforcing Franklin County Resolution No. 05-21; (2) prosecuting plaintiff for any alleged violations of Resolution No. 05-21; and (3) engaging in any action or conduct that interferes with plaintiff's duties or operations that is related in any way to Resolution 05-21."

Ten days later the Board filed a motion to dismiss, arguing that Perry's petition failed to state a claim upon which relief could be granted. The motion alleged that preparation of payroll is not a statutorily mandated duty of the county clerk and asserted that Resolution 05-21 contains an express provision to protect the county clerk's statutory duties. The Board attached several exhibits to its motion including the resolution, an affidavit from Becky Ortega (the Human Resources Director), e-mails between Ortega and Perry, and payroll forms.

In Perry's response, she admitted the phrase "preparation of payroll" is not specifically stated in the statutes defining the county clerk's duties, but she argued that general authority conferred by the legislature intended the responsibility to be within her province. She also asserted that three separate issues were ripe for adjudication including: (1) whether the preparation of payroll is a statutorily mandated duty of the county clerk; (2) whether the transfer of payroll to the HRD is more efficient and effective utilization of county services as required by K.S.A. 12-3903; and (3) whether the Board may reduce the clerk's budget for the purpose of transferring payroll. Perry attached her own affidavit to the response.

The Board timely filed a reply, asserting that summary judgment was appropriate.

On May 10, 2005, the court heard oral arguments. The Board opined that the only issue before the court was whether the preparation of payroll was a statutorily mandated duty of the county clerk. Specifically, the Board asserted that the "statutory duties of the county clerk are really those of a records custodian rather than a records creator." In response, Perry argued that the purpose of the hearing was not to address the merits of the motion, but rather to simply discern whether an actual case or controversy existed to support the motion for declaratory judgment. Nevertheless, Perry addressed the Board's statutory argument. She specifically discussed K.S.A. 19-306 and asserted that the statute is not simply a record keeping statute.

Following the hearing, the district court held that under K.S.A. 19-301 et seq., the preparation of payroll is not a duty of the county clerk. The court also held that K.S.A. 12-3901 was not applicable because the resolution did not constitute a county reorganization. As a result, the court granted the Board's dispositive motion. Perry timely appealed.

ANALYSIS

Issue 1: Did the district court err in addressing the merits of the action?

Standard of review

Perry argues that the district court erred in addressing the merits of the action, premising her argument on the standard of review applicable to a motion to dismiss under K.S.A. 60-212(b)(6). The Board responds that the appropriate standard of review is that of a motion for summary judgment. It notes that under K.S.A. 60-212(b)(6), if "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in K.S.A. 60-256." K.S.A. 60-212(b); see Davidson v. Denning, 259 Kan. 659, 666-68, 914 P.2d 936 (1996). We agree with the Board because it attached several exhibits to its motion to dismiss, and Perry attached a sworn affidavit to her response.

The law surrounding review of summary judgments is well established:

"`"Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied." [Citations omitted.]'" State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005).

Discussion

In granting the Board's motion, the district court found "that there is no factual dispute between the parties. Instead, this is a pure issue of law to be determined by the Court." On appeal, Perry does not claim that a...