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Zoellner v. Civil Service Board of Leavenworth County

May 16, 2008

SHERIFF DAVID A. ZOELLNER, APPELLEE/CROSS-APPELLANT,
v.
CIVIL SERVICE BOARD OF LEAVENWORTH COUNTY, KANSAS, APPELLANT/CROSS-APPELLEE, AND DAVID FREEMAN, APPELLEE.



Appeal from Leavenworth District Court; MARTIN J. ASHER, judge.

SYLLABUS BY THE COURT

1. The interpretation of a statute is a question of law over which this court has unlimited review. An appellate court is not bound by the district court's interpretation.

2. The fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme. Ordinary words are given their ordinary meanings.

3. K.S.A. 19-4327(d)(3) is interpreted and applied.

4. When a county civil service board sustains a sheriff's dismissal of a deputy, it does not have the authority to require the sheriff to rehire the deputy, create a position for the dismissed deputy, or force another entity to hire the dismissed deputy.

5. A county civil service board does not have the authority to transfer a dismissed sheriff's deputy to another law enforcement agency.

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

Affirmed in part and reversed in part.

Before RULON, C.J., MARQUARDT and GREENE, JJ.

The Civil Service Board of Leavenworth County (Board) appeals the district court's grant of summary judgment to Sheriff David Zoellner regarding the employment of Sheriff's Deputy David Freeman. Sheriff Zoellner cross-appeals the district court's interpretation of K.S.A. 19-4327(d)(3). We affirm in part and reverse in part.

In January 2006, Deputy Freeman was dispatched to investigate a complaint. Deputy Freeman recognized the caller, Marvin Torneden, who in the past had threatened to shoot people who came on his property.

As Deputy Freeman approached Torneden's front door, he heard an animal growl. Startled by the sound, Deputy Freeman stumbled near a fence. As he moved to regain his balance, Deputy Freeman was bitten by Torneden's dog. Deputy Freeman yelled at Torneden to get control of his animal. Torneden reportedly replied that the deputy had better stay away from the fence. In his written incident report, Deputy Freeman reported that he felt like he had no other choice than to protect himself from the animal. Deputy Freeman used his service revolver and shot the dog several times. Ultimately, the dog had to be euthanized. The dog bite sustained by Deputy Freeman was minor and did not require any medical attention.

Deputy Freeman sent a letter to Sheriff Zoellner in January 2006 attempting to explain his actions. After an investigation into Deputy Freeman's conduct, Sheriff Zoellner concluded that the shooting was not justified and Deputy Freeman had violated department policy when he discharged his weapon. Sheriff Zoellner informed Deputy Freeman that his employment was terminated, effective immediately. Deputy Freeman was told that he had the right to appeal his termination to the Board.

Deputy Freeman filed a timely notice of appeal with the Board. In March 2006, the Board sustained Deputy Freeman's dismissal; however, pursuant to K.S.A. 19-4327(d)(3), the Board directed that Deputy Freeman be ...


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