WILLIAM C. "BILL" HUFFMIER,         )
                        Plaintiff,  )
                                    )
                                    )    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. )
____________________________________)

Plaintiff William C. "Bill" Huffmier filed a petition for injunctive relief requesting that he be restored to the position of undersheriff so that he can assume the duties of sheriff until an interim sheriff is appointed and, in addition, he requests other related relief.

Defendants, county commissioners and county counselor, filed a response in opposition to plaintiff's motion for temporary injunction.

The court set the matter for hearing on March 7, 2000, on the issue of plaintiff's request for a temporary injunction. The court, after having heard the evidence, having reviewed the briefs of counsel, and being fully informed regarding the premises, denies the motion for a temporary injunction.

The following prerequisites must be satisfied before a court will grant a temporary injunction:

1. A substantial likelihood that the movant will eventually prevail on the merits;

2. A showing that the movant will suffer irreparable injury unless the injunction issues;

3. Proof that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause to the opposing party;

4. A showing that the injunction, if issued, will not be adverse to public interest.

Wichita Wire, Inc. v. Lenox, 11 Kan. App. 2d 459, 462, 726 P.2d 287 (1986).

Each of the prerequisites will be addressed below.

Plaintiff alleges that the defendants engaged in acts that are contrary to statute. Specifically plaintiff is referring to defendants' act of removing him from the position of undersheriff without any authority to do so.

Huffmier was appointed as undersheriff by former Sheriff Dave Meneley on June 5, 1995.

K.S.A. 19-804 provides that "...whenever a vacancy occurs in the office of the sheriff of any county, the undersheriff of such county shall in all things execute the office of sheriff until a sheriff shall be appointed by the governor in the manner provided by law for filling vacancies in the office of a member of the house of representatives."

K.S.A. 19-804a states that "...when there shall be no sheriff in an organized county, it shall be the duty of the county clerk to exercise all the powers and duties of the sheriff of his county until a sheriff be elected or qualified."

While it is not entirely clear as to whether the county clerk or the undersheriff assumes the powers and duties of the sheriff until a new sheriff is selected, it is clear that neither K.S.A. 19-804 nor K.S.A. 19-804a provide that the Board of County Commissioners has the authority to appoint an acting sheriff. Defendants argue that under various statutes (Kansas Public Employer/Employee Relations Act, K.S.A. 75-4321 et seq.; Civil Service System, K.S.A. 19-4303; and personnel actions subject to personnel policies and procedures established by the Board of County Commissioners, K.S.A. 19-805(d)) the Board of County Commissioners has authority to deal with personnel issues in the sheriff's department. However, the statutes cited by defendants do not provide authority to the Board of County Commissioners to directly make decisions regarding terminations or reassignments within the sheriff's department.

Therefore, the court finds that there is a substantial likelihood that plaintiff Huffmier will prevail on the merits of his petition at least regarding the Board of County Commissioner's lack of authority to remove him from his position as undersheriff.

Huffmier argues that he will suffer irreparable injury if he is not reinstated as undersheriff due to loss of pay and benefits, a disability in performing his statutory obligation of executing the duties of the sheriff, and his suffering of embarrassment and damage to his reputation.

While Huffmier may well have suffered losses of pay and benefits and embarrassment and damage to his reputation, etc., those losses are adequately addressed at law and there is no need for the extraordinary remedy of an injunction. To the extent that Huffmier was removed from the position of undersheriff on February 24, 2000, the losses he complains of have already occurred and failing to grant a temporary injunction at this juncture does not transform either the past or future losses into irreparable injury to the plaintiff. Plaintiff's reinstatement would only guarantee his employment as undersheriff until a new sheriff is appointed by the governor which will occur in approximately 4 to 11 days. (Precinct committeemen and committeewomen meet on March 11, 2000, to elect a person whose name will be submitted to the governor. The governor must act to appoint a new sheriff within seven days of his receipt of the certificate bearing the name of the person elected. K.S.A. 19-804, K.S.A. 25-3902 and 3903) Loss of a few days actual service as undersheriff does not constitute irreparable harm to the plaintiff since any damages to plaintiff can be addressed monetarily. Any temporary injunction would be applicable only for a brief period of time, after which the reinstatement would become moot.Is There Proof That The Threatened Injury To Huffmier Outweighs Whatever Damage the Proposed Injunction May Cause to the Defendants and Is There a Showing that the Injunction Will Not Be Adverse to the Public?

As both parties dealt jointly with the last two prerequisites the court will address the two issues together as well. Although plaintiff argues that defendants cannot claim any damage to themselves since they have no authority to act, defendants do have a responsibility to the public for the overall functioning of county government. The public has a strong interest in particular in the functioning of the sheriff's department. Reinstatement of plaintiff Huffmier would cause yet another change in the top administration of the sheriff's office for what may amount to only a few days.

Under the best situation, most changes in the top echelons of management cause some disruption due to differences in management style, staff uncertainty as to expectations, and other potential disruptions. Given that the maximum reinstatement period would be for a little over a week, it is doubtful that any significant positive outcomes could occur to offset the transition turmoil that a scenario of revolving "acting sheriffs" would undoubtedly bring. Any turmoil or disruption in the sheriff's department could be adverse to the public interest.

Finally, what plaintiff Huffmier is requesting is not just a temporary injunction that preserves the status quo. Instead, Huffmier is seeking a mandatory injunction. "Mandatory injunctions require performance of an act, while preventative, or prohibitory, injunctions require a party to refrain from doing an act." Mid-America Pipeline Co. v. Wietharn, 246 Kan. 238, 242, 787 P.2d 716 (1990). Courts have required a higher standard to be met for the granting of a mandatory injunction such as the one requested by the plaintiff Huffmier. Movant must demonstrate that factors supporting injunctive relief "weigh heavily and compellingly in the movant's favor." Aetna Health Management, Inc. v. Mid-America Health Network, Inc., 975 F. Supp. 1382. Courts are reluctant to grant mandatory injunctions, and the parties seeking a mandatory injunction must clearly be entitled to that form of relief. Mid-America Pipeline Co. at 242 (citing Prophet v. Builders, Inc., 204 Kan. 268, 273, 462 P.2d 122 (1969).

The court, therefore, does not find that the plaintiff met his burden of satisfying the four prerequisites for a temporary injunction particularly when the injunction plaintiff is seeking is a mandatory injunction (ie. the performance of some act in this case reinstatement of plaintiff) which carries a higher burden than a temporary injunction which merely maintains the status quo.

The court denies plaintiff's request for a temporary injunction.

The above constitutes the court's order and no further journal entry is required.

IT IS SO ORDERED.

Dated this 9th day of March, 2000.

___________________________
Nancy Parrish
Judge, Third Judicial District
Division Fourteen

I hereby certify that a copy of the above and foregoing MEMORANDUM DECISION AND ORDER was mailed this 9th day of March , 2000, to the following:

 
Jonathan B. Phelps
Margie J. 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 Baker
2nd Floor
100 SE 9th
P.O. Box 3555
Topeka, Kansas 66601-3555

_______________________________________
Norma J. Dunnaway, Administrative Assistant