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Fort Hays State University v. Fort Hays State University Chapter

November 7, 2008


Appeal from Shawnee District Court; CHARLES E. ANDREWS, JR., judge.


1. Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. An appellate court has a duty to question jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, it is the duty of the appellate court to dismiss the appeal.

2. K.S.A. 60-205(e), permitting filing of pleadings by telefacsimile communication, does not supercede express rules of an administrative agency that restrict the methods for filing or service of pleadings upon the agency and do not include fax filing.

3. The doctrine of unique circumstances is one of specific and limited application, and generally applies to permit an untimely appeal in which the delayed filing resulted from (1) the appellant's good-faith and reasonable belief that the judicial action seemingly extending the time for filing was valid; (2) the perceived extension was for no more than 30 days and was made and entered prior to the expiration of the official appeal period; and (3) the appellant filed the appeal within the extension. Application of the doctrine depends upon such concepts as equity, the interests of justice, good faith, estoppel, and nonparty error.

4. Under the facts of this case, even if counsel had been familiar with the restrictive methods for service under K.A.R. 84-2-1, it was not unreasonable for counsel to view the agency's encouragement of fax filing as a waiver or suspension of that regulation pursuant to an express regulation allowing waiver or suspension of regulations in order to avoid an injustice to a filer making inquiry on the last day of the period for filing.

5. Under the facts of this case, the application of the unique circumstances doctrine should be applied because (1) fax filing appears to have been in good faith and based on a reasonable belief that the agency action encouraging or permitting such filing was valid based either on long-standing practice or an express waiver of the more restrictive regulation; (2) the perceived validity of this filing methodology did not extend the time for filing more than 30 days and counsel was informed of the methodology prior to expiration of the period for a timely filing; and (3) the fax filing was effected within the permissible period.

6. Ordinarily a party cannot appeal from a judgment unless it has a particular interest therein and is aggrieved or prejudiced thereby. Ordinarily its interest must be immediate and pecuniary. Appeals are not for the purpose of settling abstract questions, however interesting or important to the public generally, but rather only to correct errors injuriously affecting the appellant.

7. It is the purpose of the Public Employer-Employee Relations Act (PEERA), K.S.A. 75-4321 et seq. to obligate public agencies, public employees, and their representatives to enter into discussions with affirmative willingness to resolve grievances and disputes relating to conditions of employment, acting within the framework of law; and to promote the improvement of employer-employee relations within the various public agencies of the state and its political subdivisions by providing a uniform basis for recognizing the right of public employees to join organizations of their own choice, or to refrain from joining, and be represented by such organizations in their employment relations and dealings with public agencies.

8. The purposes of PEERA do not contemplate providing a forum for private causes of action sounding in contract by a public employee against a public employer, seeking monetary damages, nor do they contemplate the vindication of such rights upon a showing of prohibited practice violations.

9. The Kansas Public Employee Relations Board's (PERB) jurisdiction is limited by K.S.A. 75-4334 to controversies concerning prohibited practices, and wrongful termination of an employment contract is not among the listed "prohibited practices" specified by K.S.A. 75-4333.

10. PERB's authority to fashion remedies in connection with conflict resolution is limited by statute to making "findings as authorized by this act and [filing] them in the proceedings." K.S.A. 75-4334(b). Had the legislature intended PERB to act as a forum for vindication of employee rights to damages upon a breach of an employment contract, such authority could easily have been included in this or another provision of PEERA.

11. In this case, PERB's award of monetary damages to a public employee for a prohibited practice violation is inconsistent with the legislative mandate to limit intervention to the minimum extent possible to secure the objectives expressed in PEERA.

12. Under the facts of this case, the measure of damages assessed and the award to the nonparty professor serve to provide a remedy not for the employee organization, but for the employee himself, thus providing a remedy beyond the exclusive remedy available to him upon an exhaustion of his administrative remedies--judicial review of his direct grievance pursuant to the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions.

13. Under the facts of this case, even if the employee organization had been allowed to represent the employee and if there had been a proper meet and confer proceeding, this certainly would not have established that the employee was entitled to monetary damages based upon his loss of employment. The award of monetary damages under these circumstances demonstrates that PERB acted in a manner beyond its statutory authority.

14. U.S.D. No. 279 v. Secretary of Kansas Dept. Of Human Resources, 247 Kan. 519, Syl. ¶ 5, 802 P.2d 516 (1990), is discussed and distinguished.

15. Our Supreme Court has cautioned that there is no indication the legislature intended its actions as to the Professional Negotiations Act (PNA), K.S.A. 72-5413 et seq., to have controlling significance with regard to PEERA, or vice versa.

16. We are not persuaded that similarities between PEERA and PNA or the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., dictate that PERB should be authorized to award monetary relief under the circumstances of this appeal. Not only do the enactments have critical differences, PERB cites no authority under PEERA that supports monetary damage relief to a public employee who is not a party to the proceedings upon a showing of prohibited practice violations by his employer, especially where the relief awarded is intended to make whole the employee for his or her loss of employment.

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

Reversed and remanded with directions.


Fort Hays State University (FHSU) appeals the district court's order upholding an award of the Kansas Public Employee Relations Board (PERB) to FHSU's former employee, Frank Gaskill, in the amount of $12,772.80 in damages as a result of a prohibited practice complaint made by the Fort Hays State University Chapter of the American Association of University Professors (AAUP). FHSU principally argues that PERB had no authority to award monetary damages to Gaskill under these circumstances. AAUP cross-appeals, arguing that PERB's reduction in Gaskill's damages from the $142,013.62 requested was not supported by the evidence or was otherwise arbitrary, capricious, and unreasonable. On our own motion, this court raised a question of our own jurisdiction because of a purported untimely filing by AAUP of its motion for reconsideration at the agency, and we requested supplemental briefs on the issue.

We conclude that the doctrine of unique circumstances is applicable, thus vesting jurisdiction in the agency and validating judicial jurisdiction, and we reverse the award of monetary damages to Gaskill as an unauthorized agency action.

Factual and Procedural Overview

This matter is before the court after a long and tortured procedural history through administrative and judicial appeals. The gravamen of this action is that FHSU failed to accord to AAUP its representational status of Gaskill in a grievance process initiated by Gaskill after FHSU decided not to extend a contract to Gaskill for the 2001-02 academic year.

This appeal was preceded, however, by an informal grievance filed by Gaskill that led to the termination decision being upheld. Rather than exhaust his administrative remedies by perfecting a formal grievance, Gaskill filed an action in district court for breach of contract and wrongful termination of employment.

FHSU moved to dismiss this suit, alleging a failure to exhaust administrative remedies. The district court granted this motion, and this court affirmed the dismissal in Gaskill v. Ft. Hays State Univ., 31 Kan. App. 2d 544, 546, 70 P.3d 693 (2003), reiterating that "the [Kansas Judicial Review Act] KJRA is the exclusive remedy for professors claiming either wrongful termination or breach of contract against state educational institutions."

Prior to the filing of Gaskill's civil action in district court, AAUP filed a prohibited practice complaint with PERB, alleging that FHSU had engaged in ongoing violations of the Public Employer-Employee Relations Act (PEERA), K.S.A. 75-4321 et seq., by failing and refusing "to accord to the charging party its representational status with regard to representation of Professor Frank Gaskill," by failing and refusing "to provide information which the charging party needs in order to properly represent Dr. Gaskill," and by unilaterally changing "terms and conditions of employment as they applied to Dr. Gaskill without meeting its obligation to first bargain in good faith with the charging party."

After resolution of preliminary motions, an administrative law judge (ALJ) held an evidentiary hearing on the merits of AAUP's complaint. The ALJ ultimately issued a 36-page initial order encompassing findings and conclusions detailing FHSU's violations of K.S.A. 75-4333(b), awarding Gaskill ...

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