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Miller v. Board of County Commissioners

Court of Appeals of Kansas

June 19, 2015

ROBERT K. MILLER, Appellant,
v.
BOARD OF COUNTY COMMISSIONERS, WABAUNSEE COUNTY, KANSAS, Appellees

Page 1054

[Copyrighted Material Omitted]

Page 1055

Appeal from Wabaunsee District Court; JEFFREY R. ELDER, judge.

SYLLABUS

BY THE COURT

1. K.S.A. 2014 Supp. 19-430(a) provides the board of county commissioners with statutory authority to appoint a county appraiser to a 4-year term.

2. The plain and unambiguous language of K.S.A. 2014 Supp. 19-431(a) authorizes the board of county commissioners to enter an order terminating a county appraiser upon a finding the appraiser failed or neglected to properly perform the duties of office. The order of termination must state the reasons for such termination and must be served upon the appraiser.

3. If timely requested, an order from the board of county commissioners that terminates a county appraiser from office is subject to review by the Property Valuation Division of the Kansas Department of Revenue (PVD). Upon such a request, the PVD is required to conduct a hearing to make inquiry as to all facts connected with the termination. If, after the hearing, the presiding officer determines that the appraiser should be terminated, then the presiding officer shall issue an order removing such appraiser.

4. The fact that the Property Valuation Division of the Kansas Department of Revenue is vested with authority to conduct a posttermination hearing at which it makes " inquiry as to all facts" connected with the termination does not divest the Board of its authority to terminate the county appraiser in the first instance.

5. Interpretation of a statute is a question of law over which appellate courts have unlimited review. The fundamental rule of statutory interpretation is that the intent of the legislature governs if that intent can be ascertained. Courts look to the plain and unambiguous language of a statute as the primary basis for determining legislative intent.

6. The statutory language of K.S.A. 2014 Supp. 19-431(a) reflects the legislature's intent that review of a board of county commissioners' termination decision by the Property Valuation Division of the Kansas Department of Revenue (PVD) is limited to (1) conducting a hearing on the county appraiser's termination; (2) making inquiry as to all facts connected with such termination; and (3) rendering an order removing the county appraiser if the PVD determines that (a) the facts presented at the hearing support the board's finding of evidence satisfactory to the board that the county appraiser failed or neglected to properly perform the duties of his or her position; (b) the board entered an order stating the reasons for the termination; and (c) the order was served upon the county appraiser.

7. Judicial review of an agency action is governed by the Kansas Judicial Review Act, K.S.A. 77-601 et seq. Appellate courts exercise the same statutorily limited review of the agency's decision as does the district court, as though the appeal had been made directly to the appellate court.

8. An appellate court reviews an agency's factual findings in light of the record as a whole to determine whether those findings are supported by substantial competent evidence.

9. Public employees with a property interest in continued employment have a right to pretermination procedural safeguards based on the constitutional right to procedural due process. The purpose of a pretermination hearing is to determine whether there are reasonable grounds to believe the charges against the employee are true and support termination.

10. When coupled with posttermination procedures, a public employee is entitled to oral or written notice of the charges, an explanation of the employer's evidence, and an opportunity to present his or her side of the story. To require more would intrude too much on the government's immediate interest in removing the employee.

Robert J. Perry, of Auburn, for appellant.

Teresa L. Watson, Terelle A. Mock, and Sarah A. Morse, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, for appellees.

Before HILL, P.J., STANDRIDGE and ATCHESON, JJ. ATCHESON, J., dissenting.

OPINION

Page 1056

Standridge, J.:

In 2011, Robert K. Miller was terminated pursuant to K.S.A. 19-431(a) by the Board of County Commissioners of Wabaunsee County (Board) from his position as the county appraiser following several performance-related issues. Miller filed an administrative appeal with the Property Valuation Division of the Kansas Department of Revenue (PVD), which overturned his termination on grounds that the Board had breached its written employment agreement with Miller. On review, the district court concluded that the PVD lacked authority to consider or decide a breach of contract claim because its sole authority was to review the Board's action under K.S.A. 19-431(a). As a result, the court vacated the PVD's order and remanded the case for the PVD to review the propriety of Miller's termination under the criteria set forth in the statute. On remand, the PVD upheld Miller's termination as proper under K.S.A. 19-431(a). The district court affirmed this decision. On appeal, Miller requests reversal of the district court's remand order and reinstatement of the PVD's original order overturning his termination. Finding no error, we affirm the district court's order affirming the decision of the PVD holding Miller's termination was proper under the applicable statute.

Facts

In 1999, the Board appointed Miller to the position of Wabaunsee County Appraiser. The Board subsequently reappointed Miller to a 4-year term in 2001, 2005, and 2009. Miller signed a written employment agreement with the Board upon each appointment. The most recent agreement provided that Miller would serve as the Wabaunsee County Appraiser for a 4-year term from July 1, 2009, through June 20, 2013, or until a successor was appointed. The agreement also provided that the Board could remove Miller as county appraiser prior to the expiration of this term according to the procedures and standards set forth in K.S.A. 19-431(a).

Ervan Stuewe is a member of the Board and has held that elected office since 2003. James Suber and Rodney Allen are the other two members of the Board. On March 14, 2011, the Board met with Miller in executive session and provided him with the following written statement:

" We have had concerns about your office for some time and it seems that things never get settled down. You have a high employee turnover, employees have not been trained and tasks have not been completed on time or just barely on time. When issues are brought to your attention it appears that your employees are made to suffer for speaking out. There have been issues about use of leave time, clocking out for lunch and on duty over use of a cell phone. At this point, our consensus is that it would be in the best interest of Wabaunsee County for you and the County to part ways. Before taking any employment action, we will give you the option to resign. We are open to negotiating a mutually agreeable separation agreement including a reasonable severance pay package. After this closed session, it is our intention to go back into the open meeting and vote whether or not to place you on paid suspension status until next Monday when we expect you to give us your decision. Should you wish to avoid that, you can choose to take voluntary leave until next Monday."

After providing the written statement to Miller, Commissioner Suber read the contents of the document out loud. Miller was given an opportunity to respond to the performance issues raised in the letter but chose

Page 1057

not to, except to say that he would not resign.

Miller brought his attorney with him to the executive session that was held prior to the Monday meeting held on March 21, 2011. Although the executive session was planned to last 30 minutes, the session ended after 10 minutes. The Board then opened the meeting up to the public. In this open meeting, the Board voted 3-0 to adopt Order #1 concerning the employment of Miller and, pursuant to the provisions of K.S.A. 19-431(a), terminated Miller's employment. The reasons for termination set forth in Order #1 were:

" 1. The appraiser has failed or neglected to perform the duties of his office by not providing adequate training and supervision to his employees.
i. Several of the offices['] recent employees charged with taking care of personal property have left the office or been fired. They expressed concerns about proper training.
ii. The current personal property employee was provided no direct training by the appraiser, was instructed to call other counties to figure out her duties, and missed a deadline to switching property over between two years due to lack of training.
iii. The County Clerk has for several years had to assist the appraiser['s] office to obtain annual certified values and she has had to train employees of the appraiser.
iv. The appraiser has failed to review and audit the work of his employees.
v. Compared to other offices of Wabaunsee County the appraiser's office has a high rate of turn over [ sic ].
" 2. The appraiser has failed or neglected to perform the duties of his office by spending work time taking or making excessive personal phone calls for long periods during the day. Most of these calls were made in an open office [within] hearing distance of his employees that has also lowered their productivity.
" 3. The appraiser violated Wabaunsee County work policies by taking more personal leave than he was allocated.
" 4. The appraiser violated Wabaunsee County work policies by not clocking in and out as directed."

Miller appealed the Board's decision to the PVD pursuant to K.S.A. 19-431(a). Following a 3-day administrative evidentiary hearing, the PVD's hearing officer concluded that Miller's termination was not proper because the Board had breached its written employment agreement with Miller by failing to follow the procedure set forth in Wabaunsee County's guidelines for discipline of county employees. Given this breach, the PVD's hearing officer declined to consider whether Miller's termination was proper under K.S.A. 19-431(a) and ordered that Miller be reinstated as county appraiser and paid " all salary and benefits" since the date of his termination.

After the Board's motion for reconsideration was denied, it sought judicial review by the district court. The district court concluded that the PVD lacked statutory authority to hear or decide a breach of contract claim because its sole authority was to review the Board's action under K.S.A. 19-431(a). As a result, the court vacated the PVD's order and remanded the case in order for the PVD to review Miller's termination under K.S.A. 19-431(a).

While the administrative appeal was pending, Miller filed an action in district court against the Board, the individual Board members, Wabaunsee County, and the Wabaunsee County Clerk (collectively defendants), claiming breach of contract and various torts relating to his termination. In response, the defendants filed a motion for judgment on the pleadings requesting the court to dismiss all tort claims. The district court granted the motion and dismissed those claims. Miller later stipulated to a dismissal without prejudice with regard to his breach of contract claim.

Following remand of the administrative appeal, the PVD found sufficient evidence in the record to support the Board's finding that it was satisfied Miller had failed or neglected to properly perform the duties of

Page 1058

the office. Accordingly, the PVD issued an order holding that Miller's termination was proper under K.S.A. 19-431(a). On review, the district court ultimately affirmed the decision rendered by the PVD.

Analysis

As he did with the district court, Miller seeks relief from the PVD's October 9, 2013, order deeming Miller's termination proper under K.S.A. 19-431(a). In order to help clarify the nature and scope of the PVD actions challenged by Miller, we find it helpful to differentiate between the scope of the Board's authority to terminate a county appraiser and the scope of the PVD's authority to review the Board's decision as set forth in K.S.A. 19-431(a), which governs the administrative process to be used when the Board makes a decision to terminate a county appraiser.

The board of county commissioners has statutory authority to appoint a county appraiser to a 4-year term. K.S.A. 2014 Supp. 19-430(a). The board of county commissioners also has statutory authority to remove a county appraiser prior to the expiration of the 4-year term. Such removal must be accomplished according to the procedures and standards set forth in K.S.A. 2014 Supp. 19-431(a). More specifically, the board of county commissioners may enter an order terminating the county appraiser from office only when it appears " by evidence satisfactory to such board that the appraiser of such county or district has failed or neglected to properly perform the duties of office." K.S.A. 2014 Supp. 19-431(a). The order of termination must state the reasons for such termination and must be served upon the appraiser. Upon service, the county appraiser is immediately divested of all powers associated with the office and the board of county commissioners must appoint a temporary appraiser to discharge the duties of the office until the vacancy is permitted to be filled. K.S.A. 2014 Supp. 19-431(a).

If timely requested, an order from the board of county commissioners that terminates a county appraiser from office is subject to review by the PVD. Upon such a request, the PVD is required to conduct a hearing in accordance with the provisions of the Kansas Administrative Procedure Act (KAPA). K.S.A. 2014 Supp. 19-431(a). The KAPA authorizes the office of administrative hearings to assign an officer to preside over the hearing. K.S.A. 2014 Supp. 77-514(a) . At this hearing, the assigned presiding officer shall make inquiry as to all facts connected with the termination. The presiding officer is not " bound by technical rules of evidence" and " shall give the parties reasonable opportunity to be heard and to present evidence." K.S.A. 77-524(a). If, after the hearing, the presiding officer determines that the appraiser should be terminated, then the presiding officer shall issue an order removing such appraiser. A copy of such order shall be sent to the board of county commissioners, which is then required to be recorded in full upon the journal of the board. The appraiser office shall become vacant immediately upon service of this order, and it is at this point that the board of county commissioners becomes authorized to appoint an eligible Kansas appraiser to fill the vacancy. K.S.A. 2014 Supp. 19-431(a).

A. The Board's authority to terminate the employment of a county appraiser

Relying on this statutory framework, Miller first argues that K.S.A. 2014 Supp. 19-431(a) does not provide the Board with the necessary legal authority to terminate him; therefore, the Board's order of termination had no legal effect on his employment. Specifically, Miller contends the PVD posttermination hearing process described in K.S.A. 2014 Supp. 19-431(a) is the exclusive procedure for terminating the employment of a county appraiser in Kansas. Contrary to Miller's argument, however, the plain and unambiguous language in K.S.A. 2014 Supp. 19-431(a) clearly authorizes the Board to enter an order terminating an appraiser upon a ...


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