WILLIAM C. "BILL" HUFFMIER, ) Plaintiff, ) ) vs. ) Case No. 00C250 ) THE BOARD OF COUNTY COMMISSIONERS ) OF SHAWNEE COUNTY, KANSAS, ) MARICE KANE, COUNTY COMMISSIONER, ) TED ENSLEY, COUNTY COMMISSIONER, ) MIKE MEIER, COUNTY COMMISSIONER, ) RICHARD ECKERT, COUNTY COUNSELOR, ) Defendants. ) ____________________________________)
The above captioned matter comes before the court on Defendants' Motion to Dismiss. After careful consideration, the court grants Defendants' Motion to Dismiss with respect to plaintiff's state law tort claims and denies defendants' motion with respect to plaintiff's claims for wrongful termination, due process of law, deprivation of a liberty interest and deprivation of right to associate under the First Amendment. Further, the court denies defendants' request to strike plaintiff's claim for punitive damages as to the constitutional claims. Therefore, the Defendants' Motion to Dismiss is granted in part and denied in part.
The standard for granting a motion to dismiss for failure to state a claim is clear in Kansas. A district court may dismiss a petition "under K.S.A. 60-212(b)(6) for failure to state a claim when it appears 'beyond doubt' petitioner can prove no set of facts which would entitle him to relief." Shepherd v. Davies, 14 Kan. App. 2d 333, 335, 789 P.2d 1190 (1990). When a motion to dismiss for failure to state a claim raises an issue regarding the legal suitability of that claim, the issue has to be decided from the well plead facts of plaintiff's petition. Grindsted Products Inc., v. Kansas Corporation Commission, 262 Kan. 294, 937 P.2d 1 (1997). "Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim." Id. "In considering a motion to dismiss for failure of the petition to state a claim for relief, a court must accept the plaintiff's description of that which occurred along with any inference reasonably to be drawn therefrom. However, this does not mean the court is required to accept conclusory allegations on the legal effects of events the plaintiff has set out if the allegations do not reasonably follow from the description itself." Knight v. Neodesha Police Dept., 5 Kan. App. 2d 472, ¶3, 620 P.2d 837 (1980). "Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to the plaintiff, and with every doubt resolved in plaintiff's favor, the petition states any valid claim for relief." Knight at ¶2.
Defendants allege that all of plaintiff's state law claims must be dismissed. The first state law claim defendants attack is that of wrongful termination. Defendants assert that under K.S.A. 19-803, plaintiff was an at-will employee and thus does not have a cause of action for breach of contract. Plaintiff alleges that by the express terms of K.S.A. 19-803, plaintiff was serving at the will of the Shawnee County Sheriff and not at the will of these defendants. In a previous order, dated March 9, 2000, this court determined that plaintiff was likely to prevail on the merits of his original request for an injunction because the express language of the statute did not provide authority to the defendants in this case to appoint an acting sheriff or make decisions regarding terminations or reassignments within the sheriff's department.
The defendants, however, contend that the removal of the plaintiff by the Board of County Commissioners, which was later ratified by the County Clerk, was proper under the law in Kansas. This court has not ruled on whether the "after the fact" ratification by the County Clerk of the firing of the plaintiff by the Board of County Commissioners is sufficient to transform an apparent unauthorized act to one that is subsequently authorized.
Plaintiff contends that the only way he could be terminated according to K.S.A. 19-803 would be if the sheriff terminates him. Defendants, however, claim that regardless of whether plaintiff was discharged by the correct person(s) or entity, his status still is that of an at-will-employee and he has no breach of contract claim. The office of undersheriff as established by statute in K.S.A. 19-803 provides:
The sheriff of each county shall, as soon as may be after entering upon the duties of his office, appoint some proper person undersheriff of said county, who shall also be a general deputy, to hold during the pleasure of the sheriff; and as often as a vacancy shall occur in the office of such undersheriff, or he become incapable of executing the same, another shall, in like manner, be appointed in his place.
In addition, K.S.A. 19-810 provides that every revocation of appointment of an undersheriff be in writing, under the hand of the sheriff.
Under the provisions of K.S.A. 19-803, the undersheriff holds the position at the pleasure of the sheriff. Under the Kansas Employment-at-Will Doctrine, in the absence of a contract covering the duration of employment, employment is terminable at the will of either party, and the employee has no cause of action by alleging he was discharged. Anco Const. Co., Ltd. v. Freeman, 236 Kan. 626, 693 P.2d 1183 (1985).
Pursuant to statute the undersheriff is an employee-at-will absent any contract, express or implied, that covers the duration of employment. There is no cause of action if employment is terminated at the will of either employer or the employee. However, in this case the plaintiff alleges that he was not terminated by his employer (the sheriff) but instead was terminated by a person(s) or entity without any authority to terminate him. Defendants apparently claim that regardless of whether plaintiff was discharged by the correct person(s) or entity, his status is still that of an employee-at-will and he has no breach of contract claim. Instead, defendants argue that plaintiff's allegation that the Board of County Commission lacked authority to terminate him more appropriately should have been brought as a quo warranto or mandamus action.
While there may have been an alternative approach in bringing this claim, this court agrees that this case can be distinguished from other non-contract employment cases. Plaintiff's employment under the statute is at the pleasure of the sheriff. However, he was not terminated at the will of his employer, the sheriff, and instead was terminated by another entity. After careful consideration of all of the arguments presented, the court finds that plaintiff has alleged facts which entitle him to proceed with his claim of wrongful termination. As explained above, the plaintiff was not terminated in compliance with the statute and therefore, he successfully alleges a cause of action. Further, in relying on the language of K.S.A. 19-803, plaintiff had an expectation that only the sheriff could terminate him and that if his work pleased the sheriff, he would not be terminated. In Allegri v. Providence - St. Margaret Health Center, 9 Kan. App. 2d 659, 684 P.2d 1031 (1984), the plaintiff claimed that his termination breached an implied contract that he could continue to work so long as his performance was satisfactory and he abided by the rules of the hospital. The Kansas Court of Appeals reversed the summary judgment granted for the employer and found that the existence of an implied contract is a question of intent, normally decided by a jury.
The Kansas Supreme Court noted in Johnson v. National Beef Packing Co., 220 Kan. 52, 551 P.2d 779 (1976) that whether or not there was an implied contract requires a factual inquiry:
"'Where no definite term of employment is expressed, the duration of employment depends on the intention of the parties as determined by circumstances in each particular case. The understanding and intent of the parties is to be ascertained from their written or oral negotiations, the usages of business, the situation and object of the parties, the nature of the employment, and all the circumstances surrounding the transaction.'" Johnson v. National Beef Packing Co., 220 Kan. at 54-55, quoting 53 Am. Jur. 2d, Master and Servant § 27, p. 103.
Whether or not the statute itself creates an implied contract based on the understanding and intent of the parties appears to this court to be a factual question. It is on this basis that the court denies Defendants' Motion to Dismiss.
The second state law claim which defendants contend do not state a claim upon which relief can be granted are those sounding in tort. Defendants allege that plaintiff's tort causes of action are barred by failure to comply with K.S.A. 12-105b(d). Plaintiff asserts that the statute requires only substantial compliance. Plaintiff argues in his response to Defendants' Motion to Dismiss that he has fulfilled the requirements of the statute by giving adequate notice to the defendants as set forth below:
1. On May 11, 2000, Plaintiff sent correspondence, through his counsel, to all of the Defendants, specifically detailing the tort claims he alleges and that no response has been or is anticipated to be made in relation to his claims.
2. The original Petition which was filed in this matter on February 28, 2000, expressly notified the defendants that plaintiff was claiming that he had been wrongfully terminated.
3. On March 7, 2000, when this Court conducted an evidentiary hearing, all of the individual defendants attended and remained present at the proceeding, thereby giving them further notice of Plaintiff's claims.
4. Before the action was filed, the Plaintiff considered Defendants' act of terminating him to be a violation of Kansas statutes. Plaintiff contends that this is evidenced by the fact that his comments challenging his termination as wrongful were published in the Topeka Capital Journal. Further, these articles included quotes from Defendants Eckert and Meier.
K.S.A. 12-105b(d) "mandates that any person with a claim which could give rise to an action brought under the Kansas Tort Claim Act must file written notice before commencing such tort action." Sage v. Williams, 23 Kan. App. 2d 624, 631, 933 P.2d 775 pet. rev. denied 262 Kan. 962 (1997). The requirements of notice which the Plaintiff must fulfill are enumerated in K.S.A. 12-105b(d) which requires the following, in relevant part:
"Any person having a claim against a municipality which could give rise to an action brought under the Kansas tort claims act shall file a written notice as provided in this subsection before commencing such action. The notice shall be filed with the clerk or governing body of the municipality and shall contain the following: (1) The name and address of the claimant and the name and address of the claimant's attorney, if any; (2) a concise statement of the factual basis of the claim, including the date, time, place and circumstances of the act, omission or event complained of; (3) the name and address of any public officer or employee involved, if known; (4) a concise statement of the nature and the extent of the injury claimed to have been suffered; and (5) a statement of the amount of monetary damages that is being requested. In the filing of a notice of claim, substantial compliance with the provisions and requirements of this subsection shall constitute valid filing of a claim . . . Once notice of the claim is filed, no action shall be commenced until after the claimant has received notice from the municipality that it has denied the claim or until after 120 days has passed following the filing of the notice of claim, whichever occurs first. . .
K.S.A. 12-105b(d) (Emphasis added).
After examining all of the relevant documentation, the court finds that plaintiff has failed substantially to comply with the requirements of 12-105b(d). Although plaintiff cites Tank v. Chronister, 941 F. Supp. 969 (D. Kan. 1996) for the proposition that the filing of an earlier petition can constitute substantial compliance, he disregards the requirement in K.S.A. 12-105b(d) which requires that either 120 days pass following the filing of the claim or that the municipality deny the claim before an action may be commenced. In Tank, the filing of an earlier petition and the associated pleadings constituted substantial compliance. However, Tank can be distinguished from the present case since the earlier petition in Tank was a separate action while the plaintiffs here contend that the original petition constitutes notice under the statute. Plaintiff filed his original petition on February 28, 2000 and has not demonstrated that notice of the claim was given to defendants in any form, prior to the commencement of that action. Plaintiff argues that he complied with the notice requirements in the hearing on March 7, 2000 (which occurred after the commencement of the action), in a letter addressed to defendants dated May 11, 2000 (which was mailed 73 days after the filing of the action) and through various newspaper articles (which do not comply with the notice elements of the statute). In each of plaintiff's purported notices to defendants, compliance with K.S.A. 12-105b(d) is woefully insufficient in that none of the "notices" were provided to the defendants prior to the commencement of this action. In addition, neither the original petition nor the March 7, 2000 hearing informed defendants of the alleged amount of monetary damages as required by the statute. Finally, plaintiff fails to allege any facts that would show that claimant has received notice that defendants denied his claim. Under Kansas law "substantial compliance" means "compliance in respect to the essential matters necessary to assure every reasonable objective of the statute." City of Lenexa v. City of Olathe, 233 Kan. 159,164, 660 P.2d 1368 (1983). The statute requires either notice of a denial from the municipality or the passage of 120 days, and neither had occurred prior to the filing of this action. Whether notice of a claim against a municipal defendant complies with the statutory requirements of K.S.A. 12-105b(d) or, in the alternative, whether such notice constitutes substantial compliance, raises a question of statutory interpretation which is a question of law. Smith v. Kennedy, 26 Kan. App. 2d 351, 351-352, 985 P.2d 715 (1999). Because the court finds that plaintiff has failed to comply with the requirements of K.S.A. 12-105b(d), Defendants' Motion to Dismiss Plaintiff's state tort law claims is granted.
Next, defendants allege that all of plaintiff's civil rights claims should be dismissed. Defendants contend that the claims plaintiff alleges under 42 U.S.C. §1983 fail to state a claim upon which relief can be granted. The first cause of action that defendants attack is plaintiff's allegation that the defendants' actions deprived him of property and liberty without due process. Defendants allege that plaintiff cannot support his property interest claim because he did not have a right to continued employment. In supporting their position, defendants rely on the fact that plaintiff was an at-will employee who did not have a vested property interest in his employment. Where a public employee alleges a property interest violation of due process because of termination of employment a two-step analysis is required: "(1) did the individual possess a protected property interest such that the due process protections were applicable; and if so, then (2) was the individual afforded an appropriate level of process." Farthing v. City of Shawnee, Kan., 39 F. 3d 1131, 1135 (10th Cir. 1994). The Kansas Court of Appeals has stated that "no property interest in a job exists unless it is created by statute, ordinance, or implied or written contracts." Pilcher v. Board of County Commissioners, 14 Kan. App. 2d 206, 210, 787 P.2d 1204 (1990), citing Stoldt v. City of Toronto, 234 Kan. 957, 678 P.2d 153 (1984). Clearly, K.S.A. 19-803 provided the sheriff with authority to terminate plaintiff or arguably someone acting with authority on behalf of the sheriff. As such, plaintiff had an expectation that he would continue to be employed unless and until the sheriff terminated him from the position of undersheriff. In order to have a property interest in continued employment, a person must show that there was more than a "desire for it" and "more than a unilateral expectation of it." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701 (1972). In order to show a property interest, the plaintiff must "have a claim of legitimate entitlement to it." Id. The court finds that plaintiff had a legitimate claim of entitlement to continued employment until discharged by the sheriff (or discharged by someone in authority) which meets the first prong of the test.
In addressing the second prong of the test, the court finds that plaintiff was not afforded an appropriate level of procedural due process with regard to his termination. In fact, plaintiff alleges that he was not afforded any due process at all. The facts alleged in the First Amended Petition reflect that defendants appeared in plaintiff's office and terminated him without giving him any notice or opportunity to be heard on the issue of his termination. In addition, it appears that the procedure followed for the dismissal was not pursuant to K.S.A. 19-810, ie. that the revocation of the appointment of undersheriff be "under the hand of the sheriff." Because plaintiff has alleged that he was not afforded any level of due process with regard to his termination, the court finds the second prong of the enumerated test also is fulfilled. Therefore, the court denies defendants' Motion to Dismiss with regard to plaintiff's due process claim.
Defendants next assert that plaintiff fails to state a claim upon which relief may be granted with respect to deprivation of a liberty interest. Defendants allege that in order to establish a liberty interest protected by due process in the context of public employment, a plaintiff must establish three elements: (1) that a defamatory statement occurred in the course of termination of employment; (2) that the stigmatizing statement was disclosed publicly; and (3) that the stigmatizing statement was false. Melton v. City of Oklahoma City, 928 F. 2d 920, 926 (1991). Plaintiff has alleged in his petition that defendants' actions caused a cloud to be placed over plaintiff's professional reputation and that defendants' actions caused plaintiff to be exposed to the public in a false light. The court finds that at this stage of the process the plaintiff sufficiently has alleged facts which "could" support his claim. As plaintiff asserts, and this court agrees, he should be allowed an opportunity to provide proof of his allegations through discovery. As mentioned above, the standard of review for a motion to dismiss for failure to state a claim requires the court to look at the facts presented in a light most favorable to the plaintiff. Therefore, defendants' Motion to Dismiss as to plaintiff's liberty interest claim is denied.
Defendants claim that plaintiff has failed to state a cause of action for deprivation of his right to associate under the First Amendment. The United States Supreme Court held that public employees who allege that they have been discharged solely because of their partisan political affiliation or non-affiliation state a valid claim for deprivation of constitutionally protected rights secured by the First Amendment. Elrod v. Burns, 427 U.S. 347, 348 96 S. Ct. 2673 (1946). Further, the 10th Circuit has stated that "the First Amendment protects public employees from discrimination based upon their political beliefs, affiliation, or non-affiliation unless their work requires political allegiance." Mason v. Oklahoma Turnpike Auth., 115 F. 3d 1442, 1451 (10th Cir. 1997). Plaintiff has alleged that he was terminated on the basis of his association with former Sheriff Meneley. The question of whether political allegiance is required in the position of undersheriff is a question of fact that cannot be decided in the pending motion. At this point in the proceedings, viewing the evidence in the light most favorable to plaintiff, the court finds that plaintiff has alleged facts to support a claim for deprivation of his right to associate under the First Amendment. Therefore, Defendants' Motion to Dismiss Plaintiff's First Amendment claim is denied.
Finally, the court turns to defendants' allegation that plaintiff's claim for punitive damages must be stricken for non-compliance with K.S.A. 60-3703. K.S.A. 60-3703 applies only to tort claims. Therefore, the requirements of K.S.A. 60-3703 do not apply to plaintiff's prayer for punitive damages with regard to his constitutional claims. It is on this basis that the court denies defendants' request to strike plaintiff's claim for punitive damages as to the constitutional claims.
Conclusion
For the above mentioned reasons, the court grants in part and denies in part Defendants' Motion to Dismiss. The foregoing Memorandum Decision and Order shall serve as the court's entry of judgment and no further journal entry is required.
IT IS SO ORDERED.
Dated this 21st day of September, 2000.
____________________
Nancy E. Parrish
District Court Judge
I hereby certify that a copy of the above and foregoing MEMORANDUM DECISION AND ORDER was mailed this 21st day of September , 2000, to the following:
Jonathan B. Phelps
Phelps Chartered
1414 S. Topeka Blvd.
P.O. Box 1886
Topeka, Kansas 66601
Richard V. Eckert
200 SE 7th, Suite 100
Topeka, Kansas 66603
K. Gary Sebelius
Anne L. Baker
100 SE 9th St., 2nd Floor
P.O. Box 3555
Topeka, Kansas 66601
_________________________________
Norma J. Dunnaway, Administrative Assistant