IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 90,475
GARY F. JONES,
Appellant,
v.
KANSAS STATE UNIVERSITY,
Appellee.
SYLLABUS BY THE COURT
1. K.S.A. 2003 Supp. 75-2949(a) provides that an appointing authority may dismiss any permanent employee in the classified service when it considers that the good of the service will be served thereby. Subsection (f) provides that when a permanent employee is finally dismissed by the appointing authority, the employee may request a hearing from the Kansas State Civil Service Board (Board) to determine whether the appointing authority acted reasonably in taking such action.
2. The Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., is applicable to appeals from orders of the Board. The party asserting the agency's action is invalid bears the burden of proving the invalidity.
3. Parties that appeal an agency action to the district court pursuant to the KJRA may appeal the district court decision to the appellate courts just as parties do in other civil cases. When reviewing the district court's decision reviewing an agency action, the appellate court must first determine if the district court observed the requirements and restrictions placed upon it. It then makes the same review of the administrative agency's action as did the district court.
4. In reviewing an agency action, the appellate court is limited to ascertaining from the record if substantial competent evidence supports the agency findings. Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issue can reasonably be resolved.
5. The appellate court must accept as true the evidence and all inferences to be drawn therefrom which support or tend to support the findings of the factfinder and must disregard any conflicting evidence or other inferences. A rebuttable presumption of validity attaches to all actions of an administrative agency, and the burden of proving arbitrary and capricious conduct lies with the party challenging the agency's actions. However, when a party disputes the district court's interpretation of a statute, the issue raised is a question of law, and the appellate court's scope of review is unlimited.
6. Where an administrative agency's findings of fact and conclusions of law are inadequate to disclose the controlling facts or the basis of the agency's findings, meaningful appellate review is precluded. The appropriate remedy for inadequate findings in a final order of an administrative agency is to remand for additional findings of fact and conclusions of law.
7. Intent may be shown by circumstantial evidence and does not need to be directly proven.
8. The interpretation of a statute is a question of law over which appellate courts exercise unlimited review. The fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. In determining legislative intent, courts are not limited to consideration of the language used in the statute but may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute might have under the various constructions suggested. In construing statutes, the legislative intent is to be determined from a general consideration of the entire act.
9. The Court of Appeals improperly interpreted the terms "gross misconduct" and "conduct grossly unbecoming a state officer or employee" under K.S.A. 75-2949f(a) by applying the definition of gross misconduct found in K.S.A. 2003 Supp. 44-706(d)(1) of the Employment Security Law. While this definition might be one factor to consider, the above terms have for years provided guidance to state employers and employees. The terms are best defined by their dictionary meanings and within the context of K.S.A. 75-2949f under the totality of circumstances in a given case.
10. Based upon the terms gross misconduct and conduct grossly unbecoming a state officer or employee under K.S.A. 75-2949f(a), an appointing authority must decide on a case-by-case basis whether the particular misconduct was "gross." In making that determination, the appointing authority has the right to consider the totality of the circumstances in determining the severity of the misconduct, which would include not only the specific actions but the ramifications of those actions on that state officer or employee's ability to perform his or her duties. The totality of the circumstances must be examined no matter what branch of state service is involved, with the result that the statute is still being uniformly applied.
Review of the judgment of the Court of Appeals in 32 Kan. App. 2d 313, 81 P.3d 1243 (2004). Appeal from Riley district court, DAVID L. STUTZMAN, judge. Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed. Opinion filed February 18, 2005.
Luke B. Harkins, of Steve A. J. Bukaty, Chartered, of Overland Park, argued the cause, and Steve A. J. Bukaty, of the same firm, was with him on the briefs for appellant.
Richard H. Seaton, of Office of University Attorney, Kansas State University, of Manhattan, argued the cause, and was on the briefs for appellee.
The opinion of the court was delivered by
DAVIS, J.: Gary Jones was terminated from his position as a police officer with the Kansas State University Police Department (KSU Police) for gross misconduct or conduct grossly unbecoming a state officer or employee pursuant to K.S.A. 75-2949f(a). In subsequent appeals, the Kansas State Civil Service Board (Board) and the district court upheld the termination. The Court of Appeals reversed and remanded with instructions to reinstate Jones with back pay and benefits in Jones v. Kansas State University, 32 Kan. App. 2d 322, 325-26, 81 P.3d 1243 (2004). This court granted the Kansas State University's (KSU) petition for review and has jurisdiction pursuant to K.S.A. 60-2101(b).
Gary F. Jones was employed as a police officer with the KSU Police beginning in January 1997. On August 26, 2001, Jones was riding with Student Security Officer Pharaoh Guice when he stopped a vehicle driven by Gretchen Esping for speeding.
Most of the traffic stop was recorded by a video camera in Jones' police car. The videotape reflects that Esping pulled over approximately 6 feet from the curb, parallel to the curb but perpendicular to the marked parking spaces. Jones approached the vehicle, asked to see her driver's license, and advised her that she was going at least 32 miles per hour in a 20 miles per hour zone. Jones ran a license check, which revealed that Esping's license had been suspended in March 2001. Jones relayed this information to Esping, who denied knowledge of the suspension. Jones told her that by law he had to write her a citation and could not let her drive the car but she could have someone drive the car home for her. When Jones told her that he had to make a criminal report, Esping became upset and started crying.
Jones returned to his car to verify the suspension. At this point, Jones asked Guice to make sure that the stop was being videotaped because "this lady is gonna be a problem." Jones then went back and advised Esping that the dispatcher had confirmed the suspension for the third time and asked Esping for her address. Esping, who was still crying, gave Jones her address and said that she lived at the end of the block. Esping told Jones that she wanted to know what court had suspended her license. Jones returned to his car to write out the traffic citation and to get that information for her. Upon returning to his car, Jones again told Guice, "I'm gonna let this run and run. I do not want that turned off for any reason. Any reason."
Jones returned to Esping's vehicle, asked Esping to sign the citation, and advised her of the court date. Esping told Jones that he would have to appear in court with her lawyer, and Jones asked if she was threatening him. Esping initially refused to sign the citation and tried to explain to Jones that she was never informed that her license had been suspended and that it was not suspended. Jones informed her that if she did not sign the citation he would have to put her in handcuffs and take her to jail. Esping then asked Jones to drive her car home. Jones told her that he could not do that but that he would give her a ride home or she could walk home and he would make sure that her car did not get towed. After Jones repeatedly told Esping that signing the citation was not an admission of guilt, Esping finally signed and accepted the ticket.
Esping started crying again and asked Jones if he could follow her home, and he refused. After explaining the ticket to her, Jones asked again if he could give her a ride home. She asked again if she could just take her car down to the corner to get her groceries to her home. Jones responded, "Okay. One second. One second. I want to tell you something. One second." He walked back to the police car and said, "Kill the lights, kill all my lights." This deactivated the camera, and nothing more of the stop was recorded. Later that night, Jones completed a report of the incident which provided in relevant part:
"At this time I informed the suspect that her license was suspended, and that I would issue her a notice to appear (citation # 6638) and she would be released at the scene, the suspect vehicle was legally parked at the time of the stop so the driver agreed to leave the vehicle where it was until she could have a friend drive her vehicle to her apartment building."
Approximately a month later, Esping filed a complaint claiming that Jones threatened her or conducted himself in a manner that caused her to have concern for her safety. The KSU Police began an internal investigation of the traffic stop. Captain Charles Beckom conducted the investigation and reviewed the videotape, the tape log, the in-car camera policy, and interviewed various witnesses, including two neighbors of Esping, Ahmed Elshahawi and Samir El-Zarkouny, and Esping, Guice, and Jones.
Esping told Captain Beckom that after ordering Guice to turn off the video camera, Jones said, "My wife is German and you and I are about the same age. . . . Tell you what. You give us two minutes to get out of here and then you go park your car in front of your apartment and don't drive it again until this is cleared up." Guice verified that Jones told him to turn off the camera, spoke with Esping for about 10 seconds, and said something "to the effect of her doing what she wanted to do after he left the area."
Jones told the investigator that he turned off the videotape for about 2 minutes because he did not want anyone to hear him telling Esping that "he was not going to watch her when they left" and so that the KSU Police would not use it against him for being a caring person. Jones also admitted that he went to Esping's apartment later that day to tell her about the teletype reflecting the suspension of her driver's license. He also went to her apartment about a month later to ask for a statement after he learned he was being investigated for the incident.
On December 13, 2001, KSU Police Director Ronnie Grice sent a letter to KSU Director of Human Resources Gary Leitnaker requesting that Jones be terminated immediately because Jones knowingly submitted false information in his police report and also violated the in-car camera policy by turning off the camera before the traffic stop was terminated to intentionally prevent any recording of the conversation at the end of the stop. However, the investigation had concluded that insufficient evidence was presented to support Esping's claim that Jones threatened her or conducted himself in a manner that caused her to have concern for her safety.
On December 14, 2001, Leitnaker sent Jones a letter informing him that the KSU Police requested his dismissal for the reason of gross misconduct or conduct grossly unbecoming a state officer or employee in violation of K.S.A. 75-2949f(a). Jones was advised that he could submit any information to Leitnaker on his behalf. After Leitnaker and Jones met on December 19, 2001, Leitnaker continued to recommend dismissal and informed Jones of his right to appeal to the KSU Classified Employee Peer Review Committee (PRC). The PRC, consisting of five classified employees from across the KSU campus, then conducted a hearing regarding Leitnaker's recommendation.
After the January 8, 2002 hearing, the PRC unanimously concurred with the KSU Police findings and recommendation for dismissal in concluding that Jones did submit false information in a case report regarding this traffic stop and violated the in-car camera policy that states "every traffic stop shall be recorded until the stop is terminated." Leitnaker dismissed Jones effective January 10, 2002, for reason of gross misconduct or conduct grossly unbecoming a state officer or employee and informed him of his right to appeal to the Board.
Jones filed a timely request for a hearing before the Board pursuant to K.S.A. 2003 Supp. 75-2949(f), and a hearing was held on May 21, 2002. Leitnaker, Grice, Beckom, and Guice testified on behalf of KSU Police. Leitnaker described his review of the recommendation to terminate Jones and the PRC process. On cross-examination, Leitnaker acknowledged that Jones had an Equal Employment Opportunity Commission (EEOC) charge pending at the time of his termination. Additionally, he testified that the KSU Police had attempted to terminate Jones in the past for falsifying his employment application, but the PRC had recommended that he be given a second opportunity and be placed on probation for 1 year.
KSU Police Director Grice testified that the KSU Police had received a request from the municipal prosecutor regarding the traffic stop that was made on August 26, 2001, by Jones. It took the officer in charge of that unit about a month to find the videotape of the stop because it had not been logged in and was on an 8-hour tape. Grice testified that the videotape and Jones' report of the incident did not match; therefore an internal investigation was conducted which concluded that Jones had violated the KSU Police policy by turning off the camera and by falsifying his police report.
Grice explained that he requested termination in this case because Jones created an integrity issue by covering up something that he did wrong. As an officer with the KSU Police with a credibility or integrity issue, any report, citation, or documentation produced by Jones might be thoroughly questioned by the prosecutor in any case that he would submit paperwork.
Captain Beckom opined that the traffic stop was not terminated when the camera was turned off. Beckom testified that the car was not legally parked because it was parked parallel to the roadway across three parking spaces, and parking in that area is at 90 degrees to the curb. Beckom felt that termination was justified because he had a serious concern about Jones' credibility. He reasoned that the last paragraph of the report was totally false as the car was not legally parked and the driver did not agree to let a friend drive the car. He explained that at most times this information would not be included in the report, and it was an intentional false statement to cover up something.
Guice testified that he did not consider the stop terminated when Jones told him to turn off the camera and Jones returned to Esping's vehicle. Upon his return, Jones said that he told Esping she could do what she wanted after they left because she had groceries in the car. Later that night, Guice went back by the location and observed that Esping's vehicle was legally parked near what he believed was her residence.
Jones testified that he had 17 years of law enforcement experience before beginning employment with the KSU Police in 1997. He said that he was targeted for termination at least 10 times while with KSU Police. Jones indicated that he had filed an earlier EEOC discrimination lawsuit against KSU Police which was settled with the agreement that the KSU Police would officially put in writing that he was a good police officer in good standing. He filed his second EEOC charge 8-9 months before the incident in this case, which dealt primarily with Lieutenant Richard Herman who acted as the spokesperson for the KSU Police at the PRC hearing.
Jones explained that he did not violate the in-car camera policy because the traffic stop was terminated when he gave her the ticket. He explained that he told Captain Beckom that he had instructed Guice to turn off the camera because the traffic stop was terminated and that he was afraid that the next thing he was going to say to her, "I didn't care," referring to whether she moved the car, was going to be used against him.
Jones testified that he typed the report later that evening from memory. He did not intentionally state that the car was legally parked knowing it was illegally parked, but he was more concerned with what was going on with her and "how this would [a]ffect her and me." Jones said that after the video camera was turned off he told Esping that he understood her plight but he could not legally let her drive in his presence. Esping agreed to let someone else take the car, but Jones concluded the conversation by saying he did not care what she did.
Jones admitted on cross-examination that the two most recent directors of the Riley County Police Department directed the KSU Police not to permit Jones to go off campus to assist with the Riley County Department. Prior to this testimony, the Board members had extensively questioned Jones about the nature of his EEOC complaints and his previous performance evaluations.
KSU Police Officer Timothy Schrog testified on Jones' behalf and opined that a traffic stop is terminated when the violator signs the traffic ticket and has signed on the line that he or she will contact the court. At that point, the violator is free to leave, even if the officer told the motorist to wait a minute, because the officer no longer had a custodial stop.
At the conclusion of the hearing, the Board unanimously voted to uphold the termination in concluding that Jones' actions constituted misconduct or conduct grossly unbecoming a state officer or employee pursuant to K.S.A. 75-2949f(a). The Board reasoned that "the appointing authority considered the totality of circumstances in this matter and that his decision was reasonable and based on the best interests of the agency and the State of Kansas."
Jones petitioned for judicial review, and the district court heard oral arguments on the case. Jones argued it was not gross misconduct to turn off the video camera regardless of whether the stop had been terminated because the KSU Police did not have any method in place for monitoring and enforcing that policy. Jones alleged that his report's statement that Esping agreed to have a friend drive the car was not false because she told him that after the videotape was turned off. Jones also argued that it was highly debatable whether the car was legally parked and even if it was not, it was such a "meaningless detail" that it had nothing to do with the element of driving on a suspended license.
Jones further asserted that the KSU Police was seeking to terminate him because of his previous lawsuit and his pending EEOC charge and the Board improperly focused on the merits of these actions. Jones argued that no separate standard for gross misconduct for law enforcement officers exists under the statutes and KSU has essentially said that any smudge to the integrity of an officer renders that officer useless to the KSU Police.
In affirming the Board, the district court noted that the Board did not expressly find a violation of the in-car camera recording policy. However, the court concluded this finding was unnecessary to find evidence of gross misconduct or conduct grossly unbecoming a state officer and employee. The court reasoned that Jones' actions and the issue of trust, and not a policy violation, were the principal issues. The court found that Jones intentionally shut off the recording and
"[w]hether, objectively, what was done 'off camera' was something great or small, the significant point is that [Jones] did not want his actions to be recorded and, while he earlier wanted to ensure that the tape was getting everything, to protect his interest in a somewhat difficult stop, he later acted to make sure the tape was stopped, also to protect his interest."
The court also found that the record supported the Board's finding that Jones included false information in his report relating to whether Esping's car was legally parked. The court concluded that the Board applied the correct standard of review in determining that Jones' termination was reasonable and that substantial evidence supported the Board's determination.
Jones timely appealed, but his appeal was initially dismissed for failing to timely docket the appeal pursuant to Supreme Court Rule 5.051 (2003 Kan. Ct. R. Annot. 32). Jones' motion to reinstate the appeal was granted.
A majority of the panel of the Court of Appeals reversed the district court. 32 Kan App. 2d at 314, 326. The majority first found that substantial competent evidence existed in the record to support the accusation that Jones erroneously characterized the vehicle as legally parked, but no evidence was presented that the error was intentional or that the inaccuracy should be characterized as a falsification. The majority also found that substantial evidence was presented that Jones technically violated the in-car camera policy in stopping the camera prior to the end of the "Esping 'event.'" 32 Kan. App. 2d at 319-21.
In determining whether Jones' actions constituted gross misconduct or conduct grossly unbecoming an officer under K.S.A. 75-2949f, the Court of Appeals majority first examined the legislative history of the Civil Service Act (CSA), K.S.A. 75-2925 et seq., including K.S.A. 75-2949f. As the legislature never defined these terms within the CSA, the majority compared the language in K.S.A. 75-2949f(a) to the language used in describing other grounds for discipline under our statutes and reviewed cases from other jurisdictions where an officer's misconduct warranted dismissal. It ultimately adopted the definition of gross misconduct from the employment security statutes, K.S.A. 2002 Supp. 44-706(b)(1) (now K.S.A. 2003 Supp. 44-706[d][1]). 32 Kan. App. 2d at 323-25.
The Court of Appeals majority disagreed that the principal issue was one of trust and declined to create a special criteria or test for state-employed officers, reasoning that the statute should be uniformly construed and applied. The majority concluded that the Board and the district court erred in concluding that Jones' actions were gross misconduct or conduct grossly unbecoming a state employee, "[p]articularly since Jones' actions in erroneously stating facts in his incident report were not intentional and may have been mere negligence, and since Jones' violation of the in-car camera policy was somewhat technical and dependent upon a disputed construction of the policy." 32 Kan. App. 2d at 326.
Judge Malone wrote a dissenting opinion concluding that Jones' actions constituted gross misconduct sufficient to support his termination as a police officer. The dissent found that Jones committed two serious violations of police department policy by intentionally turning off the video camera before the stop was terminated and by failing to log the videotape recording on the log-in sheet in an attempt to prevent it from being located. It noted that the purpose of the recording system is to ensure reliable documentation of police stops and Esping had filed a complaint about Jones' conduct during the stop in this case. By turning off the camera, Jones destroyed evidence and unnecessarily exposed the KSU Police to charges of police misconduct. 32 Kan. App. 2d at 327.
The dissent further found that Jones filed a false report by stating that the vehicle was legally parked, and upon consideration of Jones' actions, "it is hard to believe this was an unintentional misstatement of fact." 32 Kan. App. 2d at 327. The report was also false because it failed to state that Jones turned off the camera and told Esping that she could drive home. It found that filing a false report is a particularly serious offense for a police officer because prosecutors regularly inquire if there are any credibility or integrity problems with officers that will arise at trial. The dissent agreed with the district court's assessment that Jones was terminated because of a question of trust and concluded that Jones committed "misconduct striking at the very essence of law enforcement" which constituted gross misconduct sufficient to support his termination as a police officer. 32 Kan. App. 2d at 328.
KSU petitions for review arguing "substantial competent evidence supports the decision of the Board and the Court of Appeals incorrectly interpreted the phase 'gross misconduct or conduct grossly unbecoming a state officer or employee'" under K.S.A. 75-2949f(a).
Standard of Review
K.S.A. 2003 Supp. 75-2949(a) provides that an appointing authority may dismiss any permanent employee in the classified service when it considers that the good of the service will be served thereby. When a permanent employee is finally dismissed by the appointing authority, the employee may request a hearing from the Board to determine whether the appointing authority acted reasonably in taking such action under K.S.A. 2003 Supp. 75-2949(f).
The Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., is applicable to appeals from orders of the Board. K.S.A. 75-2929h. K.S.A. 77-621(c) sets forth the following applicable scope of review:
"(4) the agency has erroneously interpreted or applied the law;
. . . .
"(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
"(8) the agency action is otherwise unreasonable, arbitrary or capricious."
The party asserting the agency's action is invalid bears the burden of proving the invalidity. K.S.A. 77-621(a)(1).
Parties that appeal an agency action to the district court pursuant to the KJRA may appeal the district court decision to the appellate courts, just as parties do in other civil cases. K.S.A. 77-623. When reviewing the district court's decision reviewing an agency action, the appellate court must first determine if the district court observed the requirements and restrictions placed upon it. It then makes the same review of the administrative agency's action as did the district court. Connelly v. Kansas Highway Patrol, 271 Kan. 944, 964, 26 P.3d 1246 (2001), cert. denied 534 U.S. 1081 (2002).
In reviewing an agency action, the appellate court is limited to ascertaining from the record if substantial competent evidence supports the agency findings. Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issue can reasonably be resolved. Winston v. Kansas Dept. of SRS, 274 Kan. 396, 404, 49 P.3d 1274, cert. denied 537 U.S. 1088 (2002).
The appellate court must accept as true the evidence and all inferences to be drawn therefrom which support or tend to support the findings of the factfinder and must disregard any conflicting evidence or other inferences. A rebuttable presumption of validity attaches to all actions of an administrative agency, and the burden of proving arbitrary and capricious conduct lies with the party challenging the agency's actions. Connelly, 271 Kan. at 965.
However, when a party disputes the district court's interpretation of a statute, the issue raised is a question of law, and the appellate court's scope of review is unlimited. Kansas Dept. of Transportation v. Humphreys, 266 Kan. 179, 182, 967 P.2d 759 (1998).
Evidence Supporting the Board's Decision
KSU argues that substantial competent evidence supports the Board's findings that Jones' actions constituted gross misconduct or conduct grossly unbecoming a state officer or employee under K.S.A. 79-2949f. It contends that the Court of Appeals majority reweighed the facts and substituted its own judgment for that of the Board, the PRC, and the appointing authority. Jones counters that the Court of Appeals majority correctly focused on the lack of evidence of intentional falsification. He contends that KSU is trying to rewrite the Board's findings of fact in an attempt to include disputed facts not decided in its favor.
The PRC unanimously concurred with the KSU Police findings and recommendation for dismissal on the grounds that Jones violated KSU Police policy by submitting false information in a case report regarding this traffic stop and violating the in-car camera policy that states "every traffic stop shall be recorded until the stop is terminated."
Without explicitly finding that Jones violated these policies, the Board concluded that Jones' actions that day constituted gross misconduct or conduct grossly unbecoming a state officer or employee. This finding of gross misconduct, coupled with the specific factual findings discussed below, strongly suggests that the Board found that Jones violated both policies. As such, our analysis will focus first on whether substantial competent evidence supports these factual findings.
a. Submission of False Information in Police Report
KSU Police Policy and Procedure § 12.3.24 provides: "An officer shall not make or submit any false or inaccurate reports or knowingly enter or cause to be entered into any departmental books, records or reports, any inaccurate, false or improper information."
Relevant to this issue, the Board made the following relevant factual findings:
"8. Mr. Jones then returned to Ms. Esping's car and informed her that he didn't care what she did with her car once he left. He then returned to the patrol car and departed the area with Ms. Esping remaining.
. . . .
"11. Mr. Jones stated in his report that Ms.