NOT DESIGNATED FOR PUBLICATION
No. 123,641
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
FRATERNAL ORDER OF POLICE, NO. 7, INC.,
Appellant,
v.
CITY OF HUTCHINSON, KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed March 4, 2022.
Affirmed.
Mark J. Galus, Donald R. Aubry, and Matthew R. Huntsman, of Bukaty, Aubry & Huntsman,
Chtd., of Overland Park, for appellant.
Miriam E. C. Bailey and Denise M. Delcore, of Polsinelli PC, of Kansas City, Missouri, for
appellee.
Before CLINE, P.J., GREEN, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: Officer Jonathan Suda was terminated from the Hutchinson Police
Department following proceedings under the grievance procedure in a collective
bargaining agreement between the City of Hutchinson (City) and the Fraternal Order of
Police, No. 7 (Union). Following an unsuccessful appeal to the district court under
K.S.A. 60-2101(d), the Union appeals to us, arguing that in upholding Suda's termination
the City (1) acted outside the scope of its authority, (2) rendered a decision that was not
supported by substantial evidence, and (3) was arbitrary or capricious.
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FACTUAL AND PROCEDURAL HISTORY
The events that precipitated Suda's termination began on the evening of February
25, 2018, when the Hutchinson Police Department received numerous calls reporting an
erratic driver who failed to maintain a single lane of traffic, drifted into the middle of the
road, and swerved across the median and nearly hit an oncoming truck. The car belonged
to off-duty Hutchinson Police Officer Anna Ruzhanovska.
Suda was one of the responding officers. He initially stated that he remembered
reading the details of the reports coming into dispatch while he was on his way to the
scene but later contended that he only knew that there were some traffic complaints.
When Suda arrived Ruzhanovska had already been stopped by another officer. He saw
that Ruzhanovska had her head out of the window, was slumped over on the other
officer's arm, and was visibly upset and crying. Suda turned off his body camera to "keep
her personal matters private." In a later interview Suda claimed that he had turned off his
body camera because Ruzhanovska was a fellow officer, and the stop was not a "citizen
contact," so body cameras were not required. He also later claimed that he turned off his
camera at the direction of another officer at the scene.
After turning off his camera, Suda joined Ruzhanovska in the front seat of the car
to "figure out what was wrong." He later claimed that he got into the car to check for the
odor of alcohol because he initially presumed that Ruzhanovska was driving under the
influence. But he retracted that claim and stated he never suspected Ruzhanovska was
impaired and that he never thought the stop warranted a DUI investigation.
Though Ruzhanovska appeared to be "confused" and "out of it," Suda maintained
there were no indicators that she was under the influence of drugs or alcohol. Suda did
not require Ruzhanovska to perform any field sobriety tests. Instead, he left his patrol car
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behind and drove Ruzhanovska in her car to the law enforcement center. He claimed he
did so as instructed by a superior officer.
The City retained Douglas Duckett to conduct an internal investigation into the
matter and placed Suda on administrative leave with pay pending the outcome of the
investigation. Suda was informed that he would be interviewed and he would have to
respond truthfully to any questions posed to him during the investigation.
Upon completion of the investigation, Duckett concluded that (1) Suda's failure to
perform field sobriety testing constituted "very serious and unethical misconduct"; (2) his
decision to turn off his body camera clearly violated policy and his explanation for doing
so was "transparently absurd and disingenuous"; and (3) Suda was deceptive and
misleading during the investigation.
Based on the investigation report, the Hutchison Police Chief terminated Suda's
employment, concluding that Suda had committed three violations:
"(1) During the February 25, 2018, traffic stop, [Suda] deliberately shut off [his] body
camera in violation [of] General Order 67.1 Use of Audio and Video Equipment.
"(2) During the February 25, 2018 traffic stop, [Suda] failed to conduct impairment
testing in violation of General Order 63.2 Traffic Enforcement.
"(3) During the investigatory interview with Douglas Duckett on September 5, 2018,
[Suda] provided untruthful and intentionally evasive, contradictory and deceptive
responses in violation of General Order 1.10 and the Employee Handbook Standards
of Conduct policy."
Suda sought review of the Chief's termination decision under the collective
bargaining Memorandum of Understanding (MOU) between the City and the Union.
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Under the MOU, police officers may only be fired for "just cause which shall include, but
is not limited to, violations of Departmental Rules and Regulations or Special Orders."
The MOU provides for the following grievance procedure:
• Step I: After termination, the Union may file an official grievance on behalf of the
officer to the Police Chief, who is then required to provide a written response.
• Step II: If the matter is not settled at that point, the Union may then file a
grievance with the City Manager, who must then return a written response or act
on the grievance.
• Step III: If the matter remains unsettled, an arbitrator may be appointed "to hear
and consider evidence submitted by the parties and to thereafter make written
findings of fact and a disposition of the grievance which shall be advisory in
nature." The arbitrator's "advisory decision" is then sent to the City Manager, who
is required to render a written decision.
• Step IV: Either the Union or the City may appeal the City Manager's decision to
the governing body—here, the City Council—which renders a "final" decision on
the grievance.
The Union initiated this grievance procedure by filing a grievance with the Police
Chief, claiming that Suda had been fired without proper cause. The Chief responded by
affirming his decision to terminate Suda.
The Union then submitted the matter to the City Manager, and the City Manager
in turn rendered his own written decision, concluding that Suda had been terminated for
proper cause because he had violated department procedure by failing to conduct field
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sobriety tests; shutting off his body camera at the scene; and giving evasive,
contradictory, and deceptive statements during the investigation.
The Union then invoked the arbitration provision in the grievance procedure. The
parties filed briefs and submitted evidence, and the arbitrator conducted interviews to
address whether Suda was terminated for just cause and, if not, what the remedy should
be.
The arbitrator found clear and convincing evidence to support the City's
allegations regarding Suda turning off his body camera and failing to perform field
sobriety tests. But with respect to the City's final allegation—which the arbitrator
reframed as "Did the grievant lie to investigators"—the arbitrator failed to find clear and
convincing support in the evidentiary record. He concluded that Suda "could have been
more forthcoming in the interview," but "the evidence fell short of establishing by clear
and convincing evidence that [he] lied anyway." The arbitrator determined that because
there was not clear and convincing evidence that Suda lied, the evidence was insufficient
to warrant termination. The arbitrator recommended that the City reinstate Suda to his
former position, but without back pay or any contractual benefits.
The arbitrator's report was sent to the City Manager. After reviewing the
arbitrator's decision and award, the City Manager rejected the arbitrator's conclusion
about Suda's truthfulness and stood by his original decision, stating that "substantial and
overwhelming evidence clearly supports that [Suda] was . . . untruthful, intentionally
evasive, contradictory, and deceptive during the City's investigation and committed
multiple instances of severe misconduct."
The Union appealed to the City Council. The parties presented arguments to the
council but no new evidence. The record before the City Council consisted of the
evidence and documents already in the record before the City Manager. After reviewing
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the evidence and hearing the arguments and statements of counsel, the City Council
unanimously upheld the City Manager's decision to terminate Suda.
The Union appealed to the district court under K.S.A. 60-2101(d), arguing that the
City Council, in finding that Suda acted dishonestly during the investigation, exceeded its
authority because the arbitrator was the sole fact-finder under the MOU. The Union also
contended that the City Council's decision was not supported by substantial evidence and
that it was otherwise arbitrary or capricious. The district court denied relief on the
Union's petition, and this appeal by the Union followed.
ANALYSIS
The City Acted Within the Authority Given to It in the MOU Grievance Procedure
The Union's first contention is that the City Council exceeded its authority under
the MOU by not deferring to the arbitrator who, the Union claims, was the sole fact-
finder. The Union argues in its appellate brief: "It was not the City's job to reassess this
evidence; its job was to decide whether the remedy—the disposition of the grievance—
was correct." According to the Union, the City Council should have adopted wholesale
the arbitrator's findings of fact because the MOU provides that the arbitrator's factual
findings were binding, although his recommended disposition was not.
The City maintains that the MOU unambiguously provides that the arbitrator's
suggested disposition of the grievance and factual findings are merely advisory. Thus, the
City acted within its authority when it departed from the arbitrator's factual findings
regarding Suda's dishonesty and upheld his termination.
The Union sought relief from the district court under K.S.A. 60-2101(d). The
Union's action under this statute called for the district court to review the City's dismissal
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of Suda, with or without additional evidence, to determine whether the City's action "was
within [its] scope of authority; was substantially supported by the evidence; or was
fraudulent, arbitrary, or capricious." Denning v. Johnson County, 299 Kan. 1070, 1075,
329 P.3d 440 (2014). In our review, we apply these same standards de novo without any
deference to the district court's decision. We review the City's decision to terminate Suda
"as though the appeal had been made directly to the appellate court." 299 Kan. at 1075-
76. In doing so, our interpretation of the MOU is a matter of law over which our review is
unlimited. See Jayhawk Racing Properties, LLC v. City of Topeka, 313 Kan. 149, 154,
484 P.3d 250 (2021).
Because the MOU is a contract between the parties, we examine its arbitration
provision using the usual rules and canons of contract interpretation. City of Lenexa v.
C.L. Fairley Const. Co., 245 Kan. 316, 319, 777 P.2d 851 (1989). The primary rule of
contract interpretation is to determine the intent of the parties. If we can determine that
intent from the language of the contract, we do so without applying the rules of
construction. Peterson v. Ferrell, 302 Kan. 99, 104, 349 P.3d 1269 (2015). In interpreting
the contract, we do not isolate on any one sentence, but rather consider the instrument as
a whole. Waste Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, 963, 298
P.3d 250 (2013). Finally, the burden is on the Union to demonstrate that the City's
decision to terminate Suda was in error. See Stueckemann v. City of Basehor, 301 Kan.
718, 750, 348 P.3d 526 (2015).
As a preliminary matter, the parties address the district court's decision and the
court proceedings and analysis that led to it. As noted above, our standard of review is de
novo; that is, we review the case as if the Union's appeal had been made directly to us
rather than first being made to the district court. Accordingly, whatever happened before
the district court is immaterial to our consideration of the Union's claims in this appeal.
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The purpose of the grievance procedure is spelled out in the MOU as follows:
"The purpose of this grievance procedure is to settle, as quickly as possible, disputes
concerning the interpretation, application and enforcement of the express provisions of
this Agreement." We have already listed the steps to be followed in the grievance
procedure. Where the Union contends the process ran off the rails was in Step III and
Step IV. In Step III of the grievance procedure, the City Manager rejected the arbitrator's
conclusion that Suda should not be terminated and, contrary to the arbitrator's report,
determined that Suda was "untruthful, intentionally evasive, contradictory, and deceptive
during the City's investigation." In Step IV, the City Council made its final decision to
uphold Suda's termination based on all three charges, finding, with respect to the third
charge, that Suda's conduct was evasive, misleading, duplicitous, and dishonest.
The Union concedes that the arbitrator's disposition of the grievance—that Suda
be reinstated without back pay or benefits—is merely a recommendation and advisory in
nature. Rather, it contends that the arbitrator's findings of fact are not advisory but are
binding on the parties. Thus, it argues, the City Manager and the City Council had no
authority to engage in their own independent fact-finding in rendering a decision on
Suda's grievance.
Our first task is to examine the language of the MOU to determine the intent of the
parties. In doing so, we consider the document as a whole but we necessarily focus on
Steps III and IV of the MOU.
Step III comes into play if the Union is unsatisfied with the City Manager's initial
action on the grievance in Step II. If the matter is not settled based on the City Manager's
decision, the parties move to Step III—proceedings before an arbitrator. If the arbitrator's
report does not settle the matter, the parties move to Step IV—a final decision by the City
Council.
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"Step III
"If the grievance is not settled in Step II, the Bargaining Unit Grievance
Committee shall give written notice to the Human Resources Director for referral of the
grievance to an arbitrator . . . .
....
"(e) Except when an agreed statement of facts is submitted by the parties, it shall
be the duty of the arbitrator to hear and consider evidence submitted by the parties and to
thereafter make written findings of fact and a disposition of the grievance which shall be
advisory in nature. The arbitrator shall submit to the parties his/her decision in writing
within thirty (30) calendar days . . . .
....
"(h) Upon receipt of an advisory decision by the arbitrator, the City Manager
shall, withing seven (7) calendar days, render a written decision.
"Step IV
"The Bargaining Unit or the Employer may appeal the City Manager's decision to
the Governing Body of the Employer. . . .
....
"The Governing Body shall render a decision on the grievance. . . . The decision
of the Governing Body shall be final." (Emphases added.)
We also note the applicable provision of the Hutchison Police Department's
General Order 1.10 and its Standards of Conduct 401:
General Order 1.10
"D. Conduct of Officers
....
"9. Officers are required to speak the truth at all times whether under oath or not.
In cases where they are not allowed by the rules of service to divulge facts
withing their knowledge, they shall say they are not permitted to discuss the
subject.
....
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"14. An officer shall not fabricate, withhold or destroy evidence of any kind.
....
"J. Duty to Report
"[Officers] shall not repress, conceal or distort the facts in any incident."
Standards of Conduct 401
"The following is a list of offenses for which an employee may receive corrective action
up to and including termination. . . . Examples of unacceptable conduct include:
....
"• Making false or untrue statements to management, fellow employees or
members of the public regarding work-related matters;
"• Impeding an internal investigation regardless of whether the employee is a
witness or the focus of the investigation. Such actions include: refusing to
cooperate, withholding relevant information, destruction of records,
departing from the truth or providing false or misleading information."
Under K.S.A. 75-4330(b), in the context of public employer-employee relations,
the parties were free to determine whether the arbitrator's role would be advisory or
binding. We conclude here that the express terms of the MOU evidence the intent of the
parties that the arbitrator serve in an advisory role.
To begin, there is no language in the MOU that explicitly states that the arbitrator
is to act as the only fact-finder. Examining Step III as a whole, it is clear to us that both
the arbitrator's findings of fact and his disposition are advisory in nature.
The arbitrator is to make findings of fact and a disposition "which shall be
advisory in nature." The phrase "shall be advisory" does not exclude the arbitrator's
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findings of fact. To the contrary, we conclude that "shall be advisory" modifies and
includes both the arbitrator's findings of fact and his disposition. We find support for this
in the requirement in Step III that the arbitrator must submit his decision within 30 days.
It is this decision—the arbitrator's "advisory decision"—which the City Manager reviews
and then renders his own decision on the matter.
We cannot conceive that the parties intended that in issuing his decision the
arbitrator would submit only his recommended disposition of reinstatement without
supporting facts. The "advisory decision" the arbitrator sends to the City Manager
necessarily includes the arbitrator's findings of fact, which the arbitrator used to support
his recommended disposition.
That is certainly what happened here. The "Decision and Award of Arbitrator"
sent to and received by the City Manager—the advisory decision described in Step
III(h)—includes both the arbitrator's findings of fact and his proposed disposition.
Together these make up the advisory decision described in the MOU.
The City Manager treated the arbitrator's decision as advisory as specified in Step
III(h) in deciding that during the City's investigation Suda was "untruthful, intentionally
evasive, contradictory, and deceptive."
The relevant charge against Suda was:
"(3) During the investigatory interview with Douglas Duckett on September 5, 2018,
[Suda] provided untruthful and intentionally evasive, contradictory and deceptive
responses in violation of General Order 1.10 and the Employee Handbook Standards
of Conduct policy."
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The City Manager's characterization of Suda being, among other things, "untruthful," is
consistent with our Supreme Court's holding in Denning, in which the Supreme Court
cited with approval the Court of Appeals statement: "'Half truths are untruths if they infer
a conclusion different from what would have been concluded had the whole truth been
told.'" 299 Kan at 1085. Moreover, the City's Standards of Conduct 401 recognizes the
distinction between a false and an untrue statement and identifies unacceptable conduct to
include "departing from the truth or providing false or misleading information."
(Emphases added.) The City Council likewise treated the claim of untruthfulness
consistent with Denning in unanimously confirming the City Manager's decision
upholding Suda's termination.
The Union argues that this interpretation of the MOU renders arbitration a
meaningless exercise. We disagree. To the contrary, in rendering an advisory decision the
arbitrator facilitates the objective of the grievance process: "to settle, as quickly as
possible, disputes concerning the interpretation, application and enforcement of the
express provisions of this Agreement."
None of the City Council members was an attorney. We think it is safe to say that
membership on the City Council of the City of Hutchinson is a part-time position.
Moreover, it is apparent that the termination of employment for police officers is not an
issue that routinely comes before the Council at its regular meetings. Here, the matter was
taken up at a specially set Appeal Hearing.
The use of an arbitrator facilitates the collection of evidence and the taking of oral
testimony that could not, within reason, be undertaken by lay, part-time Council members
or by the City Manager who is charged with the day-to-day overall administration of the
City's business. Besides, not every employee termination case need come before the
Council. The City Manager has the right to review the record, including the arbitrator's
report and the statements of counsel made to the arbitrator, to determine the controlling
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facts and to arrive at a just decision that, one would hope, satisfies the parties and avoids
further proceedings before the City Council. The council only hears and decides
termination cases when one of the parties is unsatisfied with the decision of the City
Manager. In doing so, the council looks to the record established before the arbitrator.
Thus, the arbitrator serves a vital function in the disposition of involuntary terminations
without having the final say on the facts of the case.
Accordingly, we conclude that neither the City Manager under Step III nor the
City Council under Step IV exceeded the authority given under the grievance procedure
to treat the entirety of the arbitrator's "Decision and Award" as an "advisory decision."
The City's Decision was Based on Substantial Evidence and was neither Arbitrary nor
Capricious
When faced with a claim that there is no substantial evidence to support a finding
upon which the appealed decision rests, we typically examine the record for evidence that
a reasonable person could accept as being adequate to support the challenged finding.
Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915-16, 157 P.3d 1109 (2007). In doing
so, we view the evidence in the light favoring the prevailing party below—here, the
City—and we accept as true the evidence and any inference drawn from the evidence that
supports the City's finding, to the exclusion of any conflicting evidence or inference. See
Unruh v. Purina Mills, 289 Kan. 1185, 1196, 221 P. 3d 1130 (2009); Gannon v. State,
298 Kan. 1107, 1175-76, 319 P.3d 1196 (2014). Here, it is the Union's burden to show
that the evidence was insufficient. See Stueckemann, 301 Kan. at 750 ("[A] common
thread running throughout challenges to decisions made by political subdivisions or
administrative agencies—regardless of the grounds—is that the challenger has the burden
to demonstrate the decision should be reversed or declared void.").
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Rather curiously, the Union does not address in its appellate brief the specific
finding about Suda's untruthfulness which it now challenges; nor does the Union
demonstrate how the City's finding fails to satisfy the standards we have just recounted. It
merely describes its substantial evidence claim as follows:
"[T]he Arbitrator—the sole finder of fact—found that the evidence was sufficient to
justify two violations by Suda, but was insufficient to support a charge of dishonesty. The
City Manager's decision to reject this finding of fact and uphold Suda's termination
anyway—then ratified by the City Council—means that the termination decision was not
based on substantial competent evidence."
This contention is built upon what we have determined to be a false premise: that
under the MOU the authority to make findings of fact regarding a grievance rests solely
with the arbitrator. But because, as we have shown, the arbitrator's decision is advisory in
nature, the City is not bound by the arbitrator's findings. Thus, any deviation from the
arbitrator's findings is not on its face error.
The Union's appellate brief reads as a reply brief to the brief the City filed in the
district court. It challenges the City's assertions before the district court about the time
and effort that went into the City Council's decision. It never addresses the actual matter
at issue: whether substantial evidence supported the City's findings. An issue not briefed
is deemed waived or abandoned. State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787 (2018).
Moreover, a point raised incidentally in a brief—such as the Union's challenge to the
sufficiency of the evidence but not argued—is also deemed abandoned. See Russell v.
May, 306 Kan. 1058, 1089, 400 P.3d 647 (2017).
The Union's challenge to the sufficiency of the evidence fails.
Finally, the Union grounds its claim that the City acted arbitrarily or capriciously
on the contention that the City's decision was not supported by substantial evidence and
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was "without adequate determining principles." We have already addressed the
substantial evidence claim. It does not support a conclusion that the City acted arbitrarily
or capriciously.
Once again, the entirety of the Union's argument addresses the proceedings before
the district court. As we noted earlier, we address the issues on appeal de novo without
any deference to the district court's decision. We review the City's decision to terminate
Suda "as though the appeal had been made directly to the appellate court." Denning, 299
Kan. at 1075-76.
In Robinson v. City of Wichita Employees' Retirement Bd. of Trustees, 291 Kan.
266, 271, 241 P.3d 15 (2010), the court stated: "'This court has defined "arbitrary" to
mean without adequate determining principles, not done or acting according to reason or
judgment; . . . and "capricious" as changing, apparently without regard to any laws.'"
Here, the Union makes no attempt to show that the City's conduct falls within the
definition of arbitrary and capricious conduct as defined in Robinson.
The Union does cite U.S.D. No. 434 v. Hubbard, 19 Kan. App. 2d 323, 328, 868
P.2d 1240 (1994). The Union claims that Hubbard supports its position regarding the
binding effect of the arbitrator's findings. It does not. Hubbard involved a tenured teacher
who was afforded a due process hearing before a committee to determine if there were
adequate grounds to terminate him. The role of the committee in Hubbard was defined by
statute. In our case, the role of the arbitrator is defined by contract and we have
determined that under the contract the decision of the arbitrator is advisory and not
binding on the City. Hubbard does not support the Union's position.
The Union has failed to meet its burden of establishing that the City acted outside
the scope of its authority, that the City's decision was not based on substantial evidence,
and that the City's actions were arbitrary or capricious.
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Affirmed.
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