Miller v. Board of Wabaunsee County Comm'rs , 51 Kan. App. 2d 644 ( 2015 )

No. 111,569
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
ROBERT K. MILLER,
Appellant,
v.
BOARD OF COUNTY COMMISSIONERS, WABAUNSEE COUNTY, KANSAS,
Appellees.
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
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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.
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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.
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Appeal from Wabaunsee District Court; JEFFREY R. ELDER, judge. Opinion filed June 19, 2015.
Affirmed.
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.
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,
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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 not to, except to say that he would not
resign.
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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."
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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 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.
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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
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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 finding the appraiser failed or neglected to
properly perform the duties of office. The order must state the reasons for the termination
and be served on the appraiser.
Here, the Board entered an order on March 21, 2011, terminating Miller based on
its finding that he had failed or neglected to properly perform the duties of office. The
Board's order then specifically set forth the reasons for his termination. Thereafter, Miller
timely requested and received a hearing before the PVD, which initially reversed the
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termination but on remand from the district court ultimately affirmed the Board's
decision. The fact that the PVD is vested with the 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.
See K.S.A. 2014 Supp. 19-431(a). Accordingly, Miller's first argument is without merit.
B. The PVD's alleged failure to consider the progressive discipline policy
Next, Miller argues that the PVD terminated his employment notwithstanding
undisputed evidence that the Board failed to comply with the progressive discipline
policy set forth in the Wabaunsee County Personnel Policies and Guidelines. Based on
the manner in which Miller has framed this issue on appeal, it is unclear whether Miller is
arguing (1) that the PVD erred as a matter of law by deferring to the Board's decision to
bypass the progressive discipline policy or (2) that the PVD's order removing him from
the county appraiser position was not supported by substantial competent evidence
presented at the hearing. Given this ambiguity, we will consider both of these issues.
1. Standard of review: deference or de novo?
Miller appears to assert the PVD erroneously interpreted the law by applying the
wrong standard of review to make its decision. Miller contends that K.S.A. 19-431
required the PVD to review the Board's order de novo, but the PVD simply considered
whether the evidence presented supported the Board's decision to terminate his
employment.
As Miller asserts, the PVD expressly construed K.S.A. 19-431 to preclude it from
reviewing the Board's termination order de novo:
"The language of K.S.A. 19-431(a) does not suggest that the presiding officer
should substitute his/her judgment for that of the Board; it does not allow de novo review
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or any type of heighted scrutiny by the [PVD] of the facts relied upon by the Board.
Rather, it dictates deference to the judgment and decision of the Board."
Determining the proper standard of review to be utilized by the PVD in reviewing
the termination of a county appraiser under K.S.A. 2014 Supp. 19-431(a) requires us to
interpret that statute. Interpretation of a statute is a question of law over which appellate
courts have unlimited review. Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d
1045 (2013). The fundamental rule of statutory interpretation is that the intent of the
legislature is dispositive if it is possible to ascertain that intent. The language of a statute
is the primary consideration in ascertaining the intent of the legislature because the best
and only safe rule for determining the intent of the creators of a written law is to abide by
the language that they have chosen to use. Courts therefore look to the plain and
unambiguous language of a statute as the primary basis for determining legislative intent.
See Merryfield v. Sullivan, 301 Kan. 397, Syl. ¶ 2, 399, 343 P.3d 515 (2015).
Given the language of K.S.A. 2014 Supp. 19-431(a), we conclude the legislature
clearly intended the PVD to give some degree of deference to the Board's termination
decision. Significantly, the statutory language readily distinguishes between the duties,
obligations, and authority conferred upon a board as compared to the PVD:
• The board is authorized to enter an order terminating the county appraiser from
office if it appears by evidence satisfactory to the board that the county appraiser
failed or neglected to properly perform the duties of office. The county appraiser is
divested of all power upon service of this order.
• The board is authorized to appoint a temporary appraiser to discharge the duties of
the office until the vacancy is filled.
• The PVD is authorized to conduct a hearing on the termination if timely requested.
• The PVD is authorized to make inquiry as to all facts connected with the county
appraiser's termination.
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• The PVD is authorized to render an order removing the county appraiser if it
determines that the appraiser should be terminated. The office of the county
appraiser shall become vacant immediately upon service of the PVD order of
removal.
Miller relies on the authority statutorily conferred upon the PVD to support his
argument that the legislature intended the PVD to review a board's termination order de
novo. To accept Miller's argument, however, we are required to disregard the language in
that same subsection of the statute establishing the standard of review against which the
legislature clearly intended termination decisions to be measured: "evidence satisfactory
to such board that the appraiser of such county or district has failed or neglected to
properly perform the duties of office." (Emphasis added.) K.S.A. 2014 Supp. 19-431(a).
The addition of the phrase "satisfactory to such board" compels us to conclude that a
county appraiser can be terminated only if the board is satisfied that there is evidence the
county appraiser has failed or neglected to properly perform the duties of office. There
appears to be no other reason for the legislature to have added the phrase, and we cannot
construe the statute in a manner that renders any aspect of the language to be
meaningless. See In re Tax Protest of United Ag Services, 37 Kan. App. 2d 902, 908, 159
P.3d 1050, rev. denied 285 Kan. 1174 (2007).
For the reasons stated above, we conclude the legislature did not intend the PVD
to substitute its judgment for that of the Board. As such, we hold the PVD's review was
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 determined 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 position; (b) the Board
entered an order stating the reasons for the termination; and (c) the order was served upon
Miller.
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2. Substantial competent evidence
Judicial review of an order entered by the PVD is governed by the Kansas Judicial
Review Act (KJRA), K.S.A. 77-601 et seq. An appellate court exercises the same
statutorily limited review of the agency's decision as does the district court, so review of
the agency's decision is the same as if it had been appealed directly to this court. Kansas
Dept. of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010). The burden of
proving the invalidity of agency action is on the party asserting invalidity, which in this
case is Miller. See K.S.A. 2014 Supp. 77-621(a)(1).
Construing Miller's request for relief as a claim of insufficient evidence, we
review the factual determinations of the PVD in light of the record as a whole to
determine whether those findings are supported by substantial competent evidence. See
K.S.A. 2014 Supp. 77-621(c)(7).
"'[I]n light of the record as a whole' means that the adequacy of the evidence in the record
before the court to support a particular finding of fact shall be judged in light of all the
relevant evidence in the record cited by any party that detracts from such finding as well
as all of the relevant evidence in the record, compiled pursuant to K.S.A. 77-620, and
amendments thereto, cited by any party that supports such finding, including any
determinations of veracity by the presiding officer who personally observed the
demeanor of the witness and the agency's explanation of why the relevant evidence in the
record supports its material findings of fact. In reviewing the evidence in light of the
record as a whole, the court shall not reweigh the evidence or engage in de novo review."
K.S.A. 2014 Supp. 77-621(d).
Applying this standard of review, we conclude the facts presented at the hearing
support the PVD's finding of evidence sufficient to have satisfied the Board that Miller
failed or neglected to properly perform the duties of his position.
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At the hearing, the Board commissioners testified at great length about the
significant performance problems Miller had throughout his tenure as county appraiser
and that it was these problems that formed the basis for their decision to terminate his
employment. These included failing to train and supervise employees in the office, failing
to ensure the quality of the work coming out of the appraiser's office, disputing the need
to clock in or out or otherwise keep track of his working time, claiming time worked
when he was out of the office on personal matters, making excessive and disruptive
personal phone calls while working in the office, and taking more personal leave than he
was allotted.
In addition to the commissioners, many current and former employees working
under Miller's supervision testified about Miller's failure to provide them the training they
needed to properly perform their jobs. Miller's employees also testified that he did not
review their work. As a result, when the work was submitted to the county clerk, errors
were discovered that Miller could have and should have identified and corrected.
Commissioner Stuewe testified that employees in the county appraiser's office
complained about the lack of supervision and direction they received from Miller. Stuewe
also received complaints from employees in the county treasurer's office and the county
clerk's office about the quality of the work product submitted to them by the county
appraiser's office. Stuewe said he received these complaints "on a constant basis from the
very beginning [s]o I knew that things were not always getting done as they should have
been done."
There is also a great deal of evidence in the record to establish that Miller was
engaged in a "constant battle" with the Board over whether he was required to clock in
and out when he worked, as other county employees were required to do. The Board first
addressed the issue of clocking in and out with Miller in 2005. Miller told the Board he
did not believe he was required to clock in and out when he worked, but the Board
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disagreed and instructed him that he was required to keep track of his working time.
Stuewe testified that the Board repeatedly directed and redirected Miller to clock in and
out. Stuewe testified that he also spoke to Miller one-on-one about the need to clock in
and out when he was working.
Jennifer Savage is the Wabaunsee County Clerk and has served in that capacity
since 2001. Savage has worked in the clerk's office since 1981. Savage testified that
when Miller did keep track of his time, the time sheets were not accurate. She gave
several examples of occasions when Miller told Savage he was going home to bale hay or
go hunting with friends. When Savage checked Miller's time sheets, Miller had claimed
to be working the entire day.
In late 2010, an issue arose regarding Miller taking more personal time off than he
had been allocated. Savage testified Miller had used more personal leave than he had
earned. Miller admitted that this was so. Stuewe testified that the situation was brought to
the Board's attention and was later discussed with Miller.
On February 1, 2011, Miller was clocked in for 2 hours in the morning. When
Miller turned in his time sheet, he made a handwritten note that he worked from home for
an additional 6.25 hours that day. Savage checked the activity records for Orion, a
computer program used by the appraiser's office. The records reflect that on February 1,
2011, Miller was using Orion during the 2-hour period he was clocked in, but he did not
access the program at all the rest of the day.
The transcript from the PVD hearing also reflects that employees in the appraiser's
office and other county offices on the second floor of the courthouse repeatedly
complained to Stuewe that Miller spent excessive amounts of time on personal phone
calls. One employee, whose desk was next to Miller's, testified that during the time she
worked there, Miller made 12 to 15 personal phone calls per day on his cell phone and on
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the office line. Another employee testified that Miller spent more than 2 hours a day in
the office on personal calls. Yet another employee said the phone calls made it difficult to
do her job because Miller was unavailable to help her or taxpayers in the office. She also
said that "sometimes they weren't positive calls. Sometimes he was upset over them, so
there was a phone slamming or slamming the phone shut or slamming the phone down
and just kind of interrupting because I could hear it out from the front."
Based on all of these performance problems, the Board did not give Miller a merit
increase in 2000, 2008, and 2009. Significantly, he was one of only a few county
employees who did not receive a merit increase. In January 2010, the Board placed Miller
on probation for 4 months. Miller was placed on probation because of an accumulation of
performance issues, "plus the fact that that office had sent out personal property notices
late." At the same time, the Board repeated its directive that Miller make sure he clocked
in and out and "provide us 40 hours a week in the office." At this point, the Board also
rescinded Miller's 1.5% cost of living increase in salary.
Stuewe testified that by early 2011, the ongoing nature of Miller's deficient job
performance finally caused a complete breakdown in trust between the Board and Miller.
This lack of trust permeated throughout the entire courthouse. Stuewe said the other
county offices and the appraiser's office "weren't working together. People felt like
[Miller] was getting away with things that he shouldn't be. It was not giving other
employees a lot of confidence in us, I guess. It just wasn't a good working relationship."
In early 2011, Commissioner Suber informed Miller that he would not receive a merit
raise. When Miller asked why, Suber responded that it was because Miller had used too
much leave, had time clock issues, and had disgruntled employees.
Miller then confronted one of the two employees working in his office and asked
if he had "disgruntled employees." The employee felt "cornered." Shortly thereafter, the
employee approached Stuewe and told him she was "extremely upset" by this
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confrontation. Stuewe characterized this employee as an "excellent employee." Stuewe
testified that this conversation "pushed [him] over the edge." Stuewe explained why his
dissatisfaction with Miller finally reached a breaking point:
"Well, I live in a small community. I knew most of the people. In fact, I know all
the people in the courthouse very well. I saw people that were hurt because of things that
happened, people that were frustrated. I didn't feel like the taxpayers were being served.
There was work that wasn't being performed. There were people in other offices that
weren't getting work funneled to them as they needed to. They, in turn, looked bad. And I
just personally had lack of trust. I did not feel confident in—in what Mr. Miller was
doing, and I felt like there's been damage that—that couldn't be repaired unless someone
else was in that office."
In his brief, Miller does not dispute any of the veracity of any of the facts in the
record. Nevertheless, he claims he is entitled to relief from the PVD's order of
termination because these facts, when viewed in light of the record as a whole, do not
amount to substantial competent evidence sufficient to support the PVD's decision to
terminate him. More specifically, Miller argues the PVD failed to consider the Board's
failure to utilize the county employee progressive discipline policy in deciding that the
Board's decision to terminate his employment was proper. Miller argues the PVD's failure
in this regard is a breach of its statutory duty to make inquiry as to all facts connected
with his termination. We are not persuaded by Miller's argument. As a preliminary
matter, the PVD's initial order finding in favor of Miller makes clear that it did inquire
into the Board's failure to utilize the progressive discipline policy as set forth in the
Wabaunsee County Personnel Policies and Guidelines. The statute requires only inquiry
into the facts connected with the termination, which the PVD did in this case.
Notably, however, we would not have granted relief in favor of Miller even if the
PVD had failed to make inquiry into the progressive discipline policy. As the district
court held, Miller's claim of wrongful termination based on the Board's failure to utilize
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the progressive discipline policy is a breach of contract claim separate and distinct from
the statutory process and, as such, falls outside the scope of the PVD's limited jurisdiction
as set forth in K.S.A. 2014 Supp. 19-431.
Finally, even if the progressive discipline policy was relevant to the statutory
criteria, was within the scope of the PVD's limited jurisdiction, and was not actually
considered by the PVD as part of its review, we would deem any failure by the PVD to
consider the policy to be harmless error that does not serve to invalidate the PVD's order
removing Miller from office. See K.S.A. 2014 Supp. 77-621(e) (in deciding whether to
grant relief on judicial review of a challenge to the validity of agency action, "due
account shall be taken by the court of the rule of harmless error"). As noted above, Miller
does not dispute the veracity of any of the factual findings made by the PVD in its order.
Instead, he appears to argue that the PVD's alleged failure to consider whether the Board
complied with the progressive discipline policy is so significant that it essentially
undermines the substantial nature of the evidence supporting the PVD's decision. We
disagree. We have considered the evidence in the record that supports and the evidence
that detracts from the PVD's findings. See K.S.A. 2014 Supp. 77-621(d). In so doing, we
find substantial evidence supports the PVD's finding of evidence satisfactory to the Board
that Miller failed or neglected to properly perform the duties of his position as county
appraiser.
C. Salary and benefits
Miller argues the district court erroneously held he was not entitled to be fully
compensated from March 21, 2011, to June 30, 2013, the date his appointment expired.
Relying on language in Kennedy v. Board of Shawnee County Comm'rs, 264 Kan. 776,
Syl. ¶ 2, 958 P.2d 637 (1998), Miller claims the Board's decision to terminate him should
have been deemed a suspension with full salary and benefits pending conclusion of the
18
K.S.A. 19-431(a) posttermination administrative proceedings, which did not happen until
after his term expired.
There, Kennedy was appointed county appraiser in August 1992 to fill the
unexpired term of another. The term was to end June 30, 1993. The board of county
commissioners voted on January 4, 1993, to reappoint Kennedy to a 4-year term to begin
July 1, 1993. Two new county commissioners were sworn in, and the newly configured
board voted on January 11, 1993, to rescind the earlier resolution to appoint Kennedy to a
4-year term beginning July 1, 1993. The board had a change of heart and in April 1993
voted to appoint Kennedy to a new 4-year term.
Reversing course once again, the board voted to terminate Kennedy on May 27,
1993. The board stated that the termination was based on "'failure or neglect and for other
cause.'" 264 Kan. at 778. The board also voted to rescind the April resolution appointing
Kennedy to a 4-year term. The PVD upheld the removal.
Kennedy filed a petition for judicial review in the district court. The issues on
review were: (1) whether the agency's findings of fact were supported by substantial
evidence; (2) whether Kennedy had an enforceable agreement to serve as county
appraiser for a 4-year term beginning July 1, 1993; and (3) whether Kennedy's
termination was impermissibly based on retaliation for exercise of his First Amendment
rights. The district court and the Kansas Supreme Court rejected all of Kennedy's
arguments and upheld his termination. 264 Kan. at 802-03.
Miller focuses on the Kansas Supreme Court's discussion of Kennedy's second
issue. The thrust of Kennedy's argument was that the board had committed itself to
appointing him to a 4-year term beginning July 1, 1993, and could not later rescind that
commitment—even though the board voted to rescind the appointment before the term of
the appointment began. Kennedy argued that the board, by its actions, created an implied
19
contract for employment for a 4-year term beginning July 1, 1993. The Supreme Court
disagreed, adopting the reasoning of the district court that there could be no implied
contract for employment because K.S.A. 19-430 and K.S.A. 19-431 dictated "'the exact
manner by which the position both may be filled and exited, precluding, therefore, any
implied basis to either obtain it or leave it other than by the terms of the statute.'" 264
Kan. at 790. In the court's view, the county appraiser's statutory term began on July 1,
and no implied contract for employment for the 4-year term could arise out of any
promises made and rescinded before that date.
Kennedy filed a separate cause of action in the district court, which was
consolidated with the administrative appeal, and in it he raised a constitutional challenge
to K.S.A. 19-431. Kennedy argued that the statute was unconstitutional because it did not
provide for notice of the reasons for termination and a meaningful opportunity to be
heard prior to the termination. The court emphasized its duty to construe a statute in such
a manner that preserves its constitutionality. 264 Kan. at 797-98. Although the court
observed that K.S.A. 19-431 requires that the board supply notice of the reasons for the
termination and provides for a hearing before the PVD, the undisputed facts of the case
reflected that the board did not provide any factual reasons for the termination when it
passed the resolution terminating Kennedy as county appraiser. The board's "Order of
Termination" attached to resolution stated:
"'The reasons for your termination include but are not limited to the following: You have
failed or neglected to properly perform the duties of the office. The general statutory
duties are set forth in K.S.A. 79-1412a. Additional duties are set forth in the position
description for Shawnee County Appraiser. This termination is for such failure or neglect
and for other cause.'" 264 Kan. at 778.
Given the board did not comply with the requirement in K.S.A. 19-431 to supply
notice of the reasons for the termination, the Supreme Court followed the district court's
lead and construed the board's action to have merely suspended Kennedy's employment;
20
thus, Kennedy was not actually terminated from employment until the PVD entered its
order removing him from office. Construing the notice provided by the board as a
suspension in conjunction with the opportunity for Kennedy to be heard at the subsequent
evidentiary hearing, the court ultimately held the proceedings as a whole complied with
due process requirements. 264 Kan. at 798-800. And consistent with its interpretation of
the board's decision as a suspension, the court affirmed the district court's decision to
grant Kennedy an award of back pay from the date the board suspended him (May 27,
1993), until the end of his then-current term (June 30, 1993), which amounted to
approximately 1 month's pay. 264 Kan. at 799, 803. In affirming the district court's
decision to award back pay and benefits, the court specifically noted the district court's
reliance on the United States Supreme Court's decision in Cleveland Board of Education
v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985).
In Loudermill, the Court considered the extent of pretermination process to be
accorded a public employee who can be discharged only for cause. Loudermill was
comprised of two cases that were consolidated, both of which involved a complete
severance of the employment relationship and allegations of the employees' fault (lying
on an employment application) or deficiency (failure of an eye examination). Like the
facts in Kennedy, both of the employees were discharged without any opportunity to
contest the facts on which their discharges were based. Both had plausible arguments to
make that might have prevented their discharge. To that end, one of the employees
actually was reinstated after a posttermination hearing. Nevertheless, the district court
dismissed both cases for failure to state a claim for which relief could be granted.
On appeal, the Loudermill Court determined that 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 pretermination hearing is
"an initial check against mistaken decisions" and "need not definitively resolve the
propriety of the discharge." 470 U.S. at 545. The purpose is to determine whether there
21
are reasonable grounds to believe the charges against the employee are true and support
termination. The hearing is necessary but need not be formal. The requirements will
depend upon the interests involved and the nature of subsequent proceedings. When
coupled with posttermination procedures, the Court held that the 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, the
Court concluded, would intrude too much on the government's immediate interest in
removing the employee. A pretermination opportunity to respond is all the process that is
due. But because the Loudermill plaintiffs alleged they had no chance to respond, the
Court ultimately held the district court erred in dismissing the cases for failure to state a
claim. 470 U.S. at 545-46, 548.
The facts presented in this case are distinguishable from the facts presented in
Kennedy and Loudermill, where the employees were not given an explanation of why the
employee was being terminated, evidence to support the termination decision, or an
opportunity to present the employee's side of the story for purposes of an initial check
against mistaken facts. Here, the Board provided Miller with written documentation on
March 14, 2011, advising him that he could resign or would be terminated in 1 week's
time based on a finding of evidence satisfactory to the Board that Miller failed or
neglected to properly perform the duties of his position as county appraiser. The written
documentation provided the factual basis supporting the Board's action in this regard and
was served on Miller as required by statute. On March 21, 2011, the Board set aside 30
minutes in order to provide Miller an opportunity to be heard on the termination decision,
but Miller opted not to take advantage of that opportunity.
Again, 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. Before the Board entered its order of termination, Miller was provided with
the charges against him and given two opportunities to be heard in order to dispute any of
22
the allegations of deficient performance. He did not take advantage of either opportunity.
In the words of the United States Supreme Court, to require the Board to have done
anything more than it did in this matter before entering its order of termination "would
intrude to an unwarranted extent on the government's interest in quickly removing an
unsatisfactory employee." 470 U.S. at 546. A pretermination opportunity to respond is all
the process that is due.
Given Miller had two opportunities to be heard before the Board entered the
termination order, we conclude he was not deprived of his right to procedural due process
prior to termination, regardless of the posttermination process available to him.
Consistent with the standards governing procedural due process, and based on the plain
reading of the statute that confers upon the Board the authority to both suspend and
terminate a county appraiser, we conclude the Board's decision to terminate Miller was a
final termination decision and not a suspension. As such, Miller is not entitled to full
salary and benefits from the time he was terminated on March 14, 2011, to the date the
PVD hearing was held or to the date that the PVD's decision (or appeal from such
decision) is final.
Affirmed.
***
ATCHESON, J., dissenting: To prop up the termination of Robert K. Miller as
Wabaunsee County Appraiser, the majority dilutes the statutory authority of the Kansas
Department of Revenue to review those decisions made by county commissions and,
even more dangerously, sends the due process rights of public employees hurtling back
toward the 19th century. Each of those pillars essential to affirming Miller's firing
amounts to a material misapplication of the law. I, therefore, respectfully dissent.
23
The department's review should have been made without any deference to the
county commissioners' decision to fire Miller. The language of K.S.A. 19-431(a) requires
nothing less. And I would find the county commissioners afforded Miller constitutionally
inadequate due process before firing him—they really gave him none at all. As I explain,
the combined effect of those deficiencies requires that Miller's discharge in March 2011
be treated as a suspension with pay through the balance of his term as appraiser. See
Kennedy v. Board of Shawnee County Comm'rs, 264 Kan. 776, 799-800, 958 P.2d 637(1998). Because that term ended in June 2013, the county owed Miller compensation
until then, and the legal dispute should now be viewed as moot in all other respects.
The majority doesn't see it that way and undercuts Miller's due process challenge
by approving a procedure that eliminates any meaningful predeprivation opportunity to
be heard in combination with a postdeprivation hearing giving deference to the
decisionmaker's adverse action. The resulting concoction amounts to a severe denigration
of due process rights that, if allowed to stand, could become a blueprint for government
entities to deny those constitutional protections in all sorts of contexts.
The controlling issues here are legal, and the facts relevant to them are undisputed.
So I don't rehash Miller's job performance as the Wabaunsee County Appraiser. Miller
held the position for an extended time. But a lot of evidence suggests he did something
short of a stellar job. Regardless of his competence, however, Miller was entitled to a
review of the commissioners' decision to fire him that conformed to the statutory
protections in K.S.A. 19-431(a) and to the due process rights of the Fourteenth
Amendment to the United States Constitution. He got neither. I outline each of those
deprivations and discuss the proper outcome in this case.[1]
[1]Given my assessment of K.S.A. 19-431(a) and Miller's due process rights, the
majority's treatment of other issues is irrelevant. I, therefore, do not address the argument
over the Wabaunsee County personnel policies or the treatment of them in the
administrative review process or the district court. Relevant are the commissioners'
24
actions in dismissing Miller and the second administrative review of those actions.
Because we review the administrative decision under the Kansas Judicial Review Act,
K.S.A. 77-601, et seq., the district court's ruling carries no particular import at this stage.
The district court developed no factual evidence supplementing the administrative record.
Statutory Provisions
In each county, the board of county commissioners appoints an appraiser for a 4-
year term to oversee property valuation and tax assessments. K.S.A. 2014 Supp. 19-
430(a). A term of office for appraisers should be taken as legislatively crafted insulation
against political vicissitudes and pressures that might otherwise sway their approach to
their duties. See Kennedy, 264 Kan. at 790 (quoting district court's observation that the
legislature sought to protect appraisers from "'the fluctuating whim of politics or
personality'"). The commissioners, however, may approve an order removing an
appraiser during the term upon "evidence satisfactory" to them demonstrating the
appraiser's "incompetency or for any other cause." K.S.A. 2014 Supp. 19-431(a). The
order is to set out the reasons for the commissioners' actions. Upon service of the order,
the appraiser is "divested of all power," and the commissioners may name a temporary
replacement. K.S.A. 2014 Supp. 19-431(a). The statute itself requires no advance notice
to the appraiser and mandates no hearing of any kind before the commissioners.
But an appraiser dispossessed of his or her job may request a hearing in front of
the department of revenue's director of property valuation or an agency designee to
challenge the county commissioners' order. K.S.A. 2014 Supp. 19-431(a). Miller availed
himself of that statutory protection.
In this case, an administrative law judge (ALJ), as the agency designee, heard
testimony and received other evidence during a 3-day proceeding. Ultimately, the ALJ
upheld the commissioners' firing of Miller. In doing so, the ALJ interpreted K.S.A. 19-
431(a) to preclude a de novo review of the grounds for termination and as "dictat[ing]
25
deference to the judgment and decision" of the commissioners. The ALJ cited no
authority supporting that construction of K.S.A. 19-431(a) and no particular reason
justifying it. The idea seems to have originated with the lawyers for Wabaunsee County,
and they have never offered any law backing up their notion. The majority buys off on
that interpretation of K.S.A. 19-431(a) essentially as being so obvious as to defy debate—
a rationale that's nearly as mystifying as it is self-serving.
The statutory language, fairly read, requires the director or, in this case, the ALJ to
make an independent review and come to an independent conclusion warranting the
removal of an appraiser. The key language in K.S.A. 2014 Supp. 19-431(a) requires the
director to "make inquiry as to all facts connected with such . . . termination, and if after
such inquiry . . . [,] the director . . . shall determine that the appraiser. . . should be . . .
terminated, then the director . . . shall render an order removing such appraiser."
(Emphasis added.)[2] The statute says the director is to determine if the appraiser should
be fired. The decision is the director's own, based on his or her inquiry into the facts. That
sounds like the director reaching a fresh conclusion about an appraiser's job performance
unfettered by and without deference to the commissioners' actions.
[2]The statute could be characterized as verbose. The complete language of that
portion of K.S.A. 2014 Supp. 19-431(a) states:
"At the hearing the director of property valuation shall make inquiry as to all facts
connected with such suspension or termination, and if after such inquiry is made the
director of property valuation shall determine that the appraiser suspended should be
removed permanently and such appraiser's office declared vacated or should be
terminated, then the director of property valuation shall render an order removing such
appraiser."
Had the legislature meant the director to defer, it easily could have said so. For
example, the statute could have required the director to determine if the commissioners'
26
order removing an appraiser were supported by substantial evidence or if the
commissioners' decision had a reasonable basis in the evidence. The legislature could
have said the director ought to uphold what county commissioners do unless their actions
are clearly erroneous. Those sorts of provisions would signal (and require) deference. But
K.S.A. 2014 Supp. 19-431(a) hasn't language of that type. The legislature knows how to
craft statutes requiring a hearing officer or some other reviewing authority to defer to the
initial decision of another government actor. See, e.g., K.S.A. 2014 Supp. 44-510j(d)(2)
(workers compensation board shall affirm director's decision that medical provider has
overcharged for services unless decision "not supported by substantial competent
evidence"); K.S.A. 2014 Supp. 60-253(e)(2) (court must accept master's findings of fact
"unless clearly erroneous"); K.S.A. 2014 Supp. 76-11a14 (board decision to discharge
teacher to be upheld if hearing officer finds "any substantial evidence" supporting
decision for reasons distinct from teacher's claimed exercise of "a constitutionally
protected right"); K.S.A. 2014 Supp. 77-621(c)(7) (court may grant relief to party
challenging agency action based on factual findings only if findings "not supported . . .
by evidence that is substantial"). The omission of specific language from K.S.A. 2014
Supp. 19-431(a) requiring deference should be taken for what it logically indicates—
legislative intent to afford appraisers a neutral forum to challenge anew their dismissals at
the hands of local elected officials.
The majority's interpretation inserts something—a limitation on the director's
review—not plainly apparent from the statutory language. The rules of construction are
otherwise. Robinson v. City of Wichita Employees' Retirement Bd. of Trustees, 291 Kan.
266, Syl. ¶ 6, 241 P.3d 15 (2010) (The court "will not speculate on legislative intent and
will not read the [statutory] provision to add something not readily found in it."); Casco
v. Armour Swift-Eckrich, 283 Kan. 508, Syl. ¶ 6, 154 P.3d 494 (2007) ( "A statute should
not be read to add that which is not contained in the language of the statute or to read out
what, as a matter of ordinary language, is included in the statute.").
27
Other aspects of K.S.A. 2014 Supp. 19-431(a) cut against curtailing the director's
independent consideration of an appraiser's job performance and discharge. The director's
factual inquiry is to be made in a hearing conducted under the Kansas Administrative
Procedure Act, K.S.A. 77-501 et seq., after the commissioners have issued their order and
have completed whatever investigation they considered appropriate. Nothing in K.S.A.
2014 Supp. 19-431(a) suggests the director should take notice of, let alone bow to, the
evidence the commissioners compiled. And nothing in the Administrative Procedure Act
requires a reviewing authority to give deference to factual findings of the initial
decisionmaker or to actions taken based on those findings. After inquiring into the facts,
the director may issue an order terminating an appraiser. The director's order then
permanently divests the appraiser of his or her post. So even if the director concludes an
appraiser should be discharged, he or she does not ratify or affirm the commissioners'
order but supersedes it with a new order. There isn't much in the way of deference on that
score.
The majority, nonetheless, infers the director should defer to the commissioners
because they have acted on "evidence satisfactory" to them. But the inference rests on a
phrase pulled from a broader provision in K.S.A. 2014 Supp. 19-431(a) and, as a result,
misses the legislative objective. That part of K.S.A. 2014 Supp. 19-431(a) permits the
commissioners to act when they find satisfactory evidence "the appraiser . . . has failed or
neglected to properly perform the duties of office, by reason of incompetency or for any
other cause." The statutory language establishes county commissioners must have at least
colorable evidence of good cause to move to discharge an appraiser. In other words, the
provision makes clear appraisers do not serve at the pleasure of county commissioners,
they are not at-will employees, and they cannot be removed on mere caprice. See Smith v.
Kansas Orthopaedic Center, 49 Kan. App. 2d 812, 815, 316 P.3d 790 (2013) ("As a
general rule, an at-will employee may be fired at any time for any reason."). Rather,
appraisers may be discharged only for cause during their 4-year appointments. The
requirement that the commissioners act on evidence demonstrates no legislative intent
28
that the director either rely specifically on that evidence, in contrast to the evidence
developed through the review hearing, or that the commissioners' decision to terminate be
accorded deference.
I would find that the ALJ in this case erred in giving deference to the Wabaunsee
County Commissioners' decision to fire Miller. The ALJ should have made an
independent determination whether the facts developed at the hearing demonstrated
Miller to be incompetent or supported other good cause for his termination. Because the
ALJ used the wrong legal standard, this court can and should reverse, consistent with the
Kansas Judicial Review Act, K.S.A. 2014 Supp. 77-621(c)(4) (court may grant relief
when "agency has erroneously interpreted or applied the law"). Were this the only
problem, the appropriate remedy would be a remand to the ALJ to reconsider the
evidentiary record in light of the correct standard required in K.S.A. 2014 Supp. 19-
431(a)—that is, for an independent or de novo review giving no deference to the
commissioners' decision.
The ALJ made no detailed credibility determinations and did not endeavor to
resolve conflicting testimony presented at the hearing. Much of the evidence from the
commissioners seemed to be hearsay. Although hearsay may be admitted in an
administrative proceeding, secondhand accounts may inherently lack a measure of
credibility. See K.S.A. 77-524(a) (Under Administrative Procedure Act, "[e]vidence need
not be excluded solely because it is hearsay."); In re Guardianship and Conservatorship
of L.M.H., No. 108,297, 2013 WL 2395900, at *13 (Kan. App. 2013) (unpublished
opinion) ("Hearsay is generally considered unreliable because the person making the
statement—the declarant—does not appear in court . . . . [and] avoids the principal
mechanisms for measuring the candor and reliability of a witness: [1] the taking of an
oath to tell the truth; [2] the rigor of cross-examination to test the statements; and [3] the
factfinder's opportunity to gauge demeanor.").
29
The ALJ looked at the entire hearing record and simply concluded the
commissioners had evidence they found satisfactory to warrant Miller's firing, thereby
impermissibly giving deference to that decision and failing to make the statutorily
required independent determination of Miller's job performance. This court cannot assess
the evidence under the correct standard because we are in no position to weigh credibility
based on a transcript as a proxy for the ALJ who saw and heard the witnesses testify. See
In re Guardianship and Conservatorship of L.M.H., 2013 WL 2395900, at *9 (judge
seeing witnesses testify "is uniquely positioned" to make credibility determinations;
appellate court "cannot replicate that perspective and, therefore, may not reweigh the
record evidence"). In the absence of detailed credibility findings from the ALJ, we would
also plainly exceed our authority under K.S.A. 77-621(c)(7) were we to weigh the
evidence and determine whether there was good cause to terminate Miller.
But, as I discuss, constitutional due process considerations create another problem
and require a different remedy.
Due Process Rights
General Principles
Government entities may not extinguish legally recognized property rights without
affording the persons holding those rights procedural due process—an efficacious forum
in which to show the action to be legally or factually unwarranted. If public employees
have property rights in their jobs, they are entitled to due process before being
permanently deprived of those rights or, in a word, fired. Cleveland Board of Education
v. Loudermill, 470 U.S. 532, 546, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). Public
employees haven't always been afforded constitutional protections in the workplace. As
United States Supreme Court Justice Oliver Wendell Holmes, Jr., famously remarked in
upholding the firing of a police officer during his earlier tenure on the Massachusetts
30
Supreme Judicial Court: "The petitioner may have a constitutional right to talk politics,
but he has no constitutional right to be a policeman." McAuliffe v. City of New Bedford,
155 Mass. 216, 220, 29 N.E. 517 (1892). Although Justice Holmes wrote specifically of
free-speech rights, his comment captured the lack of constitutional protections extended
government employees. The law has advanced considerably since then. But not today.
Property rights triggering due process protections must derive from a source
independent of the Fourteenth Amendment. See Loudermill, 470 U.S. at 538. Here, a 4-
year appointment for appraisers, as established in K.S.A. 2014 Supp. 19-430, that can be
cut short only for cause, as provided in K.S.A. 2014 Supp. 19-431(a), creates a protected
property right. See Carmody v. Board of Trustees of University of Illinois, 747 F.3d 470,
474 (7th Cir. 2014) (for-cause termination requirement creates protected property interest
in government job). Nobody contends otherwise. The question then becomes what
constitutional process is due Miller or any other public employee with a protected
property right in his or her job.
As outlined by the United States Supreme Court, constitutionally sufficient
procedural due process requires that a person be afforded a right to be heard in a
meaningful way before being deprived of "life, liberty, or property." U.S. Const. amend.
XIV, § 1; Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)
("The fundamental requirement of due process is the opportunity to be heard 'at a
meaningful time and in a meaningful manner.' [Citation omitted.]"); Mullane v. Central
Hanover Tr. Co., 339 U.S. 306, 313, 70 S. Ct. 652, 94 L. Ed. 2d 865 (1950) (The Due
Process Clause "at a minimum" requires that "deprivation of life, liberty, or property by
adjudication be preceded by notice and opportunity for hearing appropriate to the nature
of the case."). The Kansas Supreme Court similarly defines due process rights. See State
v. King, 288 Kan. 333, 354, 204 P.3d 585 (2009).
31
The nature and extent of the due process protections must be calibrated to the
significance of the property interest. Mathews, 424 U.S. at 349. The more important the
interest at stake, the more elaborate the protections. See Goldberg v. Kelly, 397 U.S. 254,
262-63, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). The loss of a job has been recognized as
the deprivation of an important interest triggering considerable due process for the
government employee. Loudermill, 470 U.S. at 543. Termination is frequently referred to
as the industrial equivalent of "capital punishment," meaning it is the harshest sanction an
employer can impose on an employee. See Complete Auto Transit, Inc. v. Reis, 451 U.S.
401, 420-21, 101 S. Ct. 1836, 68 L. Ed. 2d 248 (1981) (Powell, J., concurring in part and
concurring in judgment); Hartford Municipal Employees Ass'n v. City of Hartford, 128
Conn. App. 646, 662 n.3, 19 A.3d 193 (2011) (Flynn, J., dissenting); Oehmke, 2
Commercial Arbitration (3d ed. 2015) § 29:11 (many labor arbitrators "analogiz[e]
employment termination to 'capital punishment in the work place'"). The financial impact
can be overwhelming, and a for-cause termination may considerably lessen the chances
for comparable reemployment.
Generally, a person must be afforded some measure of procedural due process
before suffering the loss of a property right. Memphis Light, Gas & Water Div. v. Craft,
436 U.S. 1, 13, 16, 98 S. Ct. 1554, 56 L. Ed. 2d 30 (1978). That is true for a government
employee facing termination. See Loudermill, 470 U.S. at 545-46; Jones v. City of
Boston, 752 F.3d 38, 57 (1st Cir. 2014) (government employer ordinarily cannot satisfy
due process solely through procedures available after termination). The pretermination
due process need not be extensive if the employee is afforded a full-blown
posttermination hearing. See Loudermill, 470 U.S. at 547-48 (noting limited
pretermination due process constitutionally adequate in light of more elaborate statutory
posttermination hearing procedures); Calhoun v. Gaines, 982 F.2d 1470, 1477 (10th Cir.
1992) ("Loudermill established that some form of pretermination hearing, plus a full-
blown adversarial post-termination hearing . . . are required."). The point is to avoid a
wrongful deprivation. The courts will review the overall process—the combination of
32
pretermination and posttermination protections—for constitutional sufficiency, so long as
there are minimal safeguards in place to head off the deprivation before it happens.
Government employees with protected property interests in their jobs must be
afforded pretermination due process consisting of at least "oral or written notice of the
charges against [them], an explanation of the employer's evidence, and an opportunity to
present [their] side of the story." Loudermill, 470 U.S. at 546; Carmody, 747 F.3d at 475
(pretermination due process outlined in Loudermill constitutionally adequate when
employee receives "full" posttermination hearing). The opportunity, thus defined,
becomes both a meaningful one and a constitutionally sufficient one. Mathews, 424 U.S.
at 349 (Persons facing the loss of protected property rights must be "given a meaningful
opportunity to present their case."); Carmody, 747 F.3d at 475 ("a meaningful
opportunity to be heard before the employer decides on termination is a critical
protection" even if the employee receives "robust" posttermination procedure).
Miller Denied Due Process
Measured against those settled constitutional principles, Miller received nothing
resembling adequate pretermination due process from the commissioners. The majority
cobbles together both the meeting on March 14, 2011, when the commissioners presented
Miller with the written statement of termination, and the executive session with the
commissioners a week later to suggest the requirements of Loudermill and the Due
Process Clause had been satisfied. The exercise comes up short.
The commissioners' statement, set forth in full in the majority decision, contains
three sentences outlining in exceptionally vague terms purported deficiencies in Miller's
performance as appraiser. The statement refers to lack of training of employees without
identifying particular individuals or circumstances. Similarly, the statement mentions
tasks left incomplete or completed in the nick of time without giving any specifics as to
33
what happened or when. The statement suggests Miller reacted punitively to
"employees . . . speaking out." But, again, it identifies no employee, the issue on which
he or she spoke, or Miller's purported reaction. The fourth sentence mentions abstractly
"issues about" leave time, clocking out for lunch, and use of a cell phone without
particulars as to who was involved or when. Miller, however, likely would have
understood the leave time and lunch issues, at least, to have been about his own
conduct—they had been matters of contention between him and the commissioners.
The written statement fails to provide fair notice of the "charges" against Miller, as
contemplated in Loudermill, since the description of the asserted deficiencies contains no
specifics about what happened on a given occasion. Anything like "who, what, where, or
when" details about the grounds supposedly establishing cause for Miller's termination
cannot be found in the statement. Even if the generic characterization of those grounds
were enough to give Miller notice, the statement then contains nothing outlining the
commissioners' "evidence," the second requirement in Loudermill for minimally
acceptable pretermination due process. The lack of detail in the statement precluded
Miller from responding in any meaningful way to the allegations, particularly
immediately after being given the letter as the commissioners demanded.
The circumstances demonstrate the commissioners really sought no response—
meaningful or otherwise—to the allegations themselves. The balance of their statement
couldn't be clearer. The commissioners informed Miller of their "consensus" that he and
Wabaunsee County must "part ways." They didn't want to debate or even discuss that
conclusion. The only remaining question for them was whether Miller would resign or be
fired. In the statement, the commissioners offered him "the option to resign." And they
went on to tell him they would be "open to negotiating a . . . separation agreement
including a reasonable severance pay package." Finally, the commissioners informed
Miller that they would "expect" his decision at their meeting the following Monday.
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So upon receiving the written statement, Miller had no meaningful opportunity to
present his side of the allegations to the commissioners in an effort to avert the loss of his
job. The commissioners neither furnished Miller particulars about the incidents
purporting to show the statutorily required cause for dismissal nor gave him time to
address what he had been provided. That cannot be a meaningful opportunity to head off
a mistaken or wrongful deprivation consistent with the Due Process Clause. Employees,
at the very least, must be afforded enough information and detail about the claimed
factual bases for their terminations to respond intelligibly. And they ought to be given
enough time to gather their thoughts, if not some evidence, in making that response.
What the commissioners delivered to Miller was an ultimatum that he could resign or be
fired, not a constitutionally sufficient opportunity to set straight an erroneous deprivation.
Miller's meeting with the commissioners the next Monday didn't repair that due
process violation. That was no more a meaningful opportunity to avert termination than
was the commissioners' presentation of the written statement. The stated purpose of the
second meeting was to receive Miller's decision on whether he would resign or be fired
and (if he chose to quit) to negotiate a severance agreement. The commissioners did not
intend the session to be a discussion of the validity of the grounds for Miller's departure.
They clearly communicated that purpose to Miller, so he had no reason to regard the
meeting as anything else.
The majority, nonetheless, treats those meetings singularly and collectively as a
constitutionally sufficient pretermination opportunity for Miller to be heard as to why he
ought to continue as county appraiser. But that would be true if constitutional due process
required only that the person deprived of a protected property interest interact with the
decisionmaker for some reason, thereby creating a chance for the person to bring up the
loss however off-topic or tangential it might be under the circumstances. In other words,
the majority equates a serendipitous chance with a constitutionally "meaningful
opportunity" to dissuade the decisionmaker in a forum intended for that very purpose.
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The two are far different, and the majority's take on due process would drain the
requirement for a predeprivation hearing of any practical significance. A government
employer could get by with handing an employee a general statement of the reasons for
his or her termination and scheduling a meeting for the next day with the decisionmaker
or a proxy to collect the individual's identification card and keys, to provide information
on how to continue health insurance under COBRA, 29 U.S.C. § 1161, et seq., and to
present a "final notice" of discharge. But that exit meeting couldn't be the meaningful
opportunity to prevent a wrongful termination envisioned in Loudermill or the Due
Process Clause.
I would find that Miller did not receive constitutionally adequate pretermination
due process.
In Kennedy, 264 Kan. at 798-99, the Kansas Supreme Court recognized K.S.A. 19-
431(a) to be constitutionally deficient insofar as it fails to include a mechanism for
pretermination due process. To uphold the statute, the Kennedy decision endorsed the
district court's approach in treating the commissioners' termination of an appraiser absent
pretermination due process as a suspension with pay until the director of property
valuation conducts a hearing and issues an order. Applying that rule here, I would find
Miller to have been on paid suspension until such time as the ALJ issued an order of
termination following a legally adequate hearing. As I have said, Miller never got
pretermination due process. And he has yet to get a sufficient hearing in front of the ALJ.
Accordingly, Miller was on paid suspension for the remainder of his 4-year term, and
Wabaunsee County owes him compensation from March 2011 through May 2013.
Whether the insufficiency of Miller's hearing in front of the ALJ reflects a
statutory violation or a constitutional violation presents a question of academic interest in
this case. The hearing failed in both respects. A statutory violation alone presumably
would not trigger a constitutional deficiency if the hearing nonetheless provided due
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process. See Taylor v. Kansas Dept. of Health & Environment, 49 Kan. App. 2d 233,
242, 305 P.3d 729 (2013) ("courts have long recognized that not every breach or
violation of state law by a government agent gives rise to a constitutional wrong"), rev.
denied 299 Kan. ___ (2014).
As I have already discussed, the ALJ misconstrued K.S.A. 19-431(a) by deferring
to the commissioners' decision rather than making an independent determination of
Miller's job performance. Based on the rule in Kennedy, that error coupled with the lack
of pretermination procedural due process arguably required that Miller remain on paid
suspension because he never received a statutorily compliant posttermination hearing.
The Kennedy decision isn't entirely clear on that point. But under Kennedy, an appraiser
must be treated as being on paid suspension if he or she has been denied both adequate
pretermination due process and adequate overall due process. That's where Miller ended
up.
Even if K.S.A. 19-431(a) called for the sort of deference the ALJ extended the
commissioners here, the whole procedure for discharging Miller failed to give him
constitutionally required due process. The inadequate pretermination due process
afforded Miller coupled with a posttermination hearing aimed at determining whether the
commissioners' decision simply had some support in the evidence does not satisfy the
Due Process Clause. Minimal predeprivation due process—of the sort outlined in
Loudermill—necessarily calls for a postdeprivation hearing independently examining the
decisionmaker's justification for acting. Cf. Mathews, 424 U.S. at 339 & n.21 (recipient
of social security disability afforded due process when a de novo administrative review of
decision to terminate benefits was followed by posttermination judicial review for
substantial competent evidence); Benavidez v. City of Albuquerque, 101 F.3d 620, 626
(10th Cir. 1996) ("[W]here the pre-termination process has been minimal, the employee's
fate may depend entirely upon the post-termination hearing."). Conversely, a
postdeprivation hearing deferring to the decisionmaker's action at least arguably could be
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constitutionally acceptable if the person facing the loss had been given an elaborate
predeprivation process permitting a detailed examination of the evidence and a studied
opportunity to address directly the decisionmaker and to offer rebuttal evidence. See
Skogen v. City of Overland Park, Kansas, 404 Fed. Appx. 327, 329-31 & n.2 (10th Cir.
2010). After all, if the predeprivation procedures themselves fully satisfy the Due Process
Clause, the government entity need not provide any postdeprivation protections. See
Calhoun, 982 F.2d at 1476-77; Vukadinovich v. Board of School Trustees of Michigan
City Area Schools, 978 F.2d 403, 410-11 (7th Cir. 1992) (public school teacher not
entitled to posttermination proceedings to satisfy Due Process Clause when he received
notice of pretermination hearing 2 months in advance and was permitted to call witnesses
and present other evidence, cross-examine school district's witnesses, and address
decisionmaker directly at the hearing).
But in this case, Miller got nothing approaching constitutional due process from
the commissioners before being dismissed, so the ALJ's deference to that decision failed
to provide sufficient due process after the dismissal. The two in combination fared no
better constitutionally—Miller was deprived of due process throughout the proceedings.
Consistent with Kennedy, Miller's termination, therefore, must be treated as a paid
suspension for the balance of his term of office. I would so hold.
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