Kansas Court Limits Ability To Appeal Discipline To Civil Service Boards

When public safety officers want to challenge discipline, their ability to successfully do so is tied in part to the system of appeal. In parts of the country, particularly including many states in the South and Southwest, public safety officers are considered to be “at-will” employees. An at-will employee can be fired or otherwise disciplined for any reason or no reason at all, provided the employer’s actions do not violate federal or state statutes.

At the other end of the spectrum are those states – approximately 35 – with statewide collective bargaining laws for firefighters and law enforcement officers. The usual disciplinary appeal system in these states is through binding arbitration. An arbitrator is typically jointly selected by the parties, likely is a lawyer, and usually does nothing but work as an arbitrator. Arbitrators will almost always apply a right/wrong standard to an employer’s disciplinary decision, asking whether the facts support the decision and, if so, whether the penalty imposed by the employer is appropriate.

A third system of disciplinary appeals involves disciplinary appeals boards, often called civil service boards (but existing under a variety of names). For several reasons, public safety officers have less success appealing discipline to such boards. First, the members of an appeals board are typically not selected jointly, but are usually selected by the employer. Second, appeals boards usually show a deference to the employer’s decision-making, often to the degree that they will uphold discipline that they judge to be harsh. Lastly, when an appeals board decision ends up in court, officers will often find an unhospitable environment.

A recent case involving Johnson County, Kansas Sheriff’s Department Master Deputy Michael Maurer is an illustration of the difficulty officers may face when a civil service board decision winds up in court. Maurer cracked a department vehicle’s windshield with a binder while attempting to shoo a bothersome horsefly. Maurer initially reported the incident by writing: “Crack in windshield – rock” on a yellow sticky note and leaving the note for his commanding officer, Sergeant Joe Greenwood. The next morning, Maurer briefly spoke with Greenwood and advised him the crack on the windshield had “spider-webbed” as the result of a rock chip. But another deputy who witnessed the horsefly incident soon reported that Maurer caused the damage when he hit the windshield with the binder. Maurer eventually responded to questions regarding the incident in two separate written reports and disclosed additional facts regarding his role in damaging the windshield.

Sheriff Frank Denning terminated Maurer’s employment for violating the Department’s professional standard on truthfulness. In doing so, the Sheriff adopted the position of a review board recommending termination based on Maurer’s false statements in the sticky note and his verbal statement to his commanding officer indicating the windshield damage was caused by a rock rather than Maurer’s own actions.

Maurer appealed to the Johnson County Sheriff’s Civil Service Board, and the Board reversed the termination and ordered Maurer’s reinstatement. The Sheriff appealed to the district court, and the district court reversed the Board’s decision and remanded the case to the Board for further proceedings. On remand, the Board reversed itself, upholding the decision to terminate Maurer. More appeals landed the case before the Kansas Supreme Court.

The Court’s opinion focused at length on the role of sheriff department civil service boards under a series of Kansas statutes. The Court found that the plain language of the statutes “authorizes the Board to receive and consider evidence for and against a dismissal in determining the reasonableness of the Sheriff’s personnel decision, to approve or disapprove of the Sheriff’s decision, and to make appropriate orders based on its findings and conclusions. Having concluded the Board had authority to review and determine the reasonableness of Denning’s decision, we next consider whether it properly applied that standard in this case.

“Generally, a decision is reasonable if it is substantially supported by the evidence. Accordingly, the Board’s role here was to consider whether substantial competent evidence supported the Sheriff’s decision dismissing Maurer. ‘Substantial competent evidence’ possesses both relevance and substance and provides a substantial basis of fact from which the issues can be reasonably determined. Evidence is not substantial if it is overwhelmed by other evidence in the record or constitutes a mere conclusion.”

“Here, the Board failed to fulfill that role, thereby exceeding its scope of authority, by failing to understand the evidentiary footings of the reasonableness standard, as demonstrated by its decision. In its written order, the Board made several factual findings, all of which are supported by evidence in the record and are either uncontroverted or procedural facts. The Board found that ‘the mere fact that the first report was not as complete as desired does not rise to a violation of the Department’s policy on truthfulness. Mr. Maurer at all times took responsibility. His only error was to fail to include in the first report that the item he tossed at the horsefly was a blue folder. Further, his immediate supervisor, Sergeant Greg Shelton, believes Maurer does a good job; shows up for work; knows and does what needs to be done and is reliable and truthful. He would like to have him back as an officer.’

“The Board exceeded its scope of authority by substituting its judgment for that of the Sheriff, rather than applying the requisite reasonableness standard, because the Board’s determination that no evidence existed to support Denning’s decision was itself unreasonable, arbitrary and capricious, and not supported by the uncontroverted facts of the case. First, as the Sheriff argues, the Board’s conclusion that there was ‘no evidence’ to support Denning’s finding that Maurer violated the Department’s truthfulness policy ignores evidence directly supporting Denning’s dismissal of Maurer. Namely, the record demonstrates that when Maurer left the keys to the vehicle with Greenwood, he also left a sticky note stating simply, ‘Crack in windshield – rock.’ Further, Greenwood testified that when he spoke with Maurer about the note the next morning Maurer advised him that ‘the windshield had spider-webbed as the result of a rock chip.’ In neither account did Maurer mention that he hit the windshield with a binder. Thus, this evidence supported the Sheriff’s determination that Maurer violated the policy on truthfulness when he initially reported to Greenwood – on a sticky note and in his first conversation with Greenwood about that note – that only a rock damaged the windshield.

“The Board did not act reasonably when it failed to consider the primary basis for the Sheriff’s decision – i.e., Maurer’s two false statements before he ever responded in written reports as well as his failure to disclose relevant information in those initial reports. Half truths are untruths if they infer a conclusion different from what would have been concluded had the whole truth been told.”

A dissenting judge commented: “The civil-service board concluded that firing Maurer wasn’t reasonable, and we are not allowed to substitute our judgment for that of the administrative agency charged by statute with making such a decision. No matter how the majority tries to spin what it is doing, the bottom line is simply a reversal of a decision that the majority does not like. That is not our function, and I would not do it.”

Denning v. Johnson County, 329 P.3d 440 (Kan. 2014).