Denning v. JOHNSON SHERIFF'S CIVIL SERVICE

Leben, J.,

dissenting: Johnson County Sheriff Frank Denning fired Deputy Michael Maurer after Maurer failed initially to report that he’d caused a crack in the windshield of a patrol car by tossing a 5-pound plastic accordion folder full of papers at a horsefly in the car. But Kansas law malees the sheriff s personnel decision subject to review by a civil-service board “to determine the reasonableness of [the] action.” K.S.A. 19-4327(b). The civil-service board concluded that firing Maurer wasn’t reasonable, and we are not allowed to substitute our judgment for that of the administrative agency charged by statute with making such a decision. I would therefore affirm the decision of the civil-service board, which ordered that Maurer be reinstated.

The procedural history of this case is a bit complicated, and we should begin with consideration of that. There were two civil-service board hearings in this case because the district court vacated the first civil-service-board order, which had voted 3 to 1 to require Maurer’s reinstatement. A second civil-service-board hearing, which took place after the Johnson County Commission adopted new rules to guide the process, resulted in a 3-to-2 decision upholding the sheriff s action.

From a procedural standpoint, one other complicating factor is the sheriffs use of what he calls a professional-standards board as part of his department’s internal process of deciding whether to take disciplinary action against or terminate an employee. While the sheriff is free to consult with others in making employment-related decisions, the professional-standards board is not established by statute, and its existence does not change tire statutory authority of the civil-service board.

In my view, the district court wrongly vacated the first civil-service-board order. Because the case should have ended with an affirmance of that order reinstating Maurer, I do not address any issues relating to the second board hearing.

The Roles of the Sheriff and the Civil-Service Board in Firing Decisions

Consideration of the case must begin with delineation of the *711respective roles of the sheriff and the civil-service board in a civil-service system. Such systems are designed to protect permanent employees from being fired unfairly. For an urban sheriff in Kansas, the sheriff may dismiss a permanent employee “when he considers that the good of the service will be served thereby,” but may never dismiss an employee for political, religious, or racial reasons. K.S.A. 19-4327(a). But the employee has a further protection: “Any employee so dismissed may request... a hearing before the [civil-service] board to determine the reasonableness of such action.” K.S.A. 19-4327(b). In addition, K.S.A. 19-805(d) provides that “[a]ny personnel action taken by the sheriff. . . shall be subject to . . . any applicable . . . civil service system [emphasis added],” and “subject to” generally means subordinate, subservient, or inferior to. See Black’s Law Dictionary 1425 (6th ed. 1990); Franks v. Roades, 310 S.W.3d 615, 629 (Tex. App. 2010).

So the sheriff may make whatever initial decision the sheriff finds appropriate for the good of the sheriff s department, but the civil-service board must determine, on appeal by the employee, the reasonableness of the sheriff s action. After all, the civil-service board hearing has only one statutory purpose: “to determine the reasonableness of such action.” K.S.A. 19-4327(b). And when the civil-service board finds the sheriff s decision unreasonable and disapproves the decision, it “shall order the reinstatement of the employee.” K.S.A. 19-4327(c).

In this system, as established by statute, the civil-service board exercises quasi-judicial functions. Ratley v. Sheriff’s Civil Service Board, 7 Kan. App. 2d 638, Syl. ¶ 5, 646 P.2d 1133 (1982); see also Umbehr v. Board of Wabaunsee County Comm’rs, 252 Kan. 30, 33, 843 P.2d 176 (1992) (action taken by agency or board that determines legal issues as they stand on present facts and existing law is either judicial or quasi-judicial in nature); Halford v. City of Topeka, 234 Kan. 934, 936, 677 P.2d 975 (1984) (finding jurisdiction to hear police officer’s appeal of civil-service board ruling under provision allowing appeal from quasi-judicial decisions); Adams v. Marshall, 212 Kan. 595, 599, 512 P.2d 365 (1973) (city's civil-service commission reviewing police-officer disciplinary actions acts in quasi-judicial capacity); Thompson v. Amis, 208 Kan. 658, *712663, 493 P.2d 1259, cert. denied 409 U.S. 847 (1972) (state civil-service board acts in quasi-judicial capacity). That means that the civil-service board is the entity designated by statute in these cases to investigate the facts, weigh the evidence, draw conclusions, and exercise any discretion that’s of a judicial nature. Ratley, 7 Kan. App. 2d 638, Syl. ¶ 4.

The Court’s Standard of Review for a Local Government’s Civil-Service Board

When a city or county board acts in a quasi-judicial capacity, that board — not a reviewing court — is charged with making the factual findings and exercising whatever discretion there is. Accordingly, court review is highly deferential. We may reverse the board’s decision only if it acted outside its scope of authority, made a decision not supported by substantial evidence, or acted fraudulently, arbitrarily, or capriciously. Robinson v. City of Wichita Retirement Bd. of Trustees, 291 Kan. 266, 270, 241 P.3d 15 (2010); Brown v. U.S.D. No. 333, 261 Kan. 134, 138, 928 P.2d 57 (1996). In this review, the court must not substitute its judgment for that of the quasi-judicial board, nor may the court consider the facts independently and make its own findings. Neeley v. Board of Trustees, Policemens Firemens Retirement System, 205 Kan. 780, 782-83, 473 P.2d 72 (1970). The same standards are applied whether review is in the district court or in an appellate court. Robinson, 291 Kan. at 270.

There are some additional rules that apply to a court review of the civil-service board’s decision here. Before discussing them, I note that the Kansas Judicial Review Act, adopted in 1984, does not apply to the review of decisions made by local units of government. See K.S.A. 77-602(a); K.S.A. 77-603(a); Frick v. City of Salina, 289 Kan. 1, 10-11, 208 P.3d 739 (2009). So when a court reviews tire ruling of a county’s civil-service board, we apply the traditional rules Kansas courts have applied when reviewing local-agency actions without regard to the statutory changes that have been enacted for our review of state-agency decisions. Although the legislature adopted new standards for review of state-agency decisions in 1984 and has made a number of amendments to those *713statutes since then, it has not made similar changes to the caselaw standards that had been in place for review of local-government actions.

Kansas has long applied a rule when reviewing administrative-agency decisions to see whether they are supported by substantial evidence; in such cases, we look only at the evidence supporting the agency’s findings and ignore contrary evidence. E.g., Blue Cross & Blue Shield of Kansas, Inc. v. Praeger, 276 Kan. 232, 263, 75 P.3d 226 (2003) (“[T]he courts must accept as true the evidence and all inferences to be drawn therefrom which support or tend to support the findings of the agency. They are to disregard any conflicting evidence or other inferences which might be drawn therefrom.”); Connelly v. Kansas Highway Patrol, 271 Kan. 944, 965, 26 P.3d 1246 (2001) (“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. We are to disregard any conflicting evidence or other inferences.”); Kaufman v. Kansas Dept. of SRS, 248 Kan. 951, 962, 811 P.2d 876 (1991) (“The court is not concerned with evidence contrary to the findings but must focus solely on evidence in support of the findings.”). That same rule is applied when a court reviews the factual findings of a district judge hearing evidence without a jury. See Garvey Elevators, Inc. v. Kansas Human Rights Comm’n, 265 Kan. 484, 496-97, 961 P.2d 696 (1998); Southern Star Central Gas Pipeline, Inc. v. Cunning, 37 Kan. App. 2d 807, Syl. ¶ 1, 157 P.3d 1120 (2007). When an agency acts in a quasi-judicial capacity, it plays a hybrid role as both an administrative agency and as the entity performing a judicial function. On judicial review, we have traditionally applied the same rules- — looking only at the evidence supporting the factual finding — both to review of agency factual findings and to review of the findings of a district judge to see whether substantial evidence supports those findings. When an agency, board, or hearing committee plays a hybrid, quasi-judicial role, we continue to apply those same rules. See Kansas Board of Education v. Marsh, 274 Kan. 245, 256, 259, 50 P.3d 9 (2002).

One more aspect of court review must be noted. Generally, unless required by a statute (like the Kansas Administrative Proce*714dures Act now provides for state agencies in K.S.A. 77-526), agencies, boards, or hearing commissions are not required to make any detailed findings to support their rulings. E.g., Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 366, 770 P.2d 423 (1989) (“Specific findings of fact by an administrative agency, while desirable in contested matters, are not indispensable to a valid decision in the absence of a statute or rule requiring them.”). Even when a statute has a general findings requirement, Kansas courts have applied a relaxed standard on review under which the court may fill any gaps in the findings by reference to supporting evidence in the record. See In re Tax Appeal of Horizon Tele-Communications, Inc., 241 Kan. 193, 196-97, 734 P.2d 1168 (1987). When we review the decision of a district judge, we generally presume that the district court found all of the facts needed to support its judgment unless a party objected in the district court to the findings as inadequate. E.g., Dragon v. Vanguard Industñes, 282 Kan. 349, 356, 144 P.3d 1279 (2006). I presume that the same rule applies when we review the ruling of an administrative body acting in a quasi-judicial manner.

Consideration of the First Civil-Service Board Ruling

With these rules in mind, let’s consider what happened in the first civil-service-board hearing. The board recognized in its order that it agreed with Maurer drat the board was acting in a quasi-judicial capacity, rejecting the sheriff s argument that the board’s role was limited to determining whether the sheriff had provided procedural due process before terminating Maurer. The board decided against the sheriff s claim that Maurer violated the department’s truthfulness policy by omitting important information from his initial report. The board’s order explicitly made these factual findings:

• “[Tjhere was no evidence to support the finding that a violation of [Professional Standard LL, Truthfulness] occurred.”
• “[T]he two reports [Maurer submitted] were, by all accounts, truthful. See testimony of Sergeant [Joseph] Greenwood[, who asked Maurer to provide written reports.]”
*715• “In response to questions from counsel, Greenwood concedes that the reports were truthful, the only issue was that [Maurer] was ‘not as specific as [Greenwood] or Lieutenant [Robert] Pinkelman wanted him to be.’ ”
• “[Maurer’s] only error was to fail to include in the first report that the item he tossed at the horsefly was a blue folder.”
• “[Maurer’s] immediate supervisor, Sergeant Greg Shelton, believes Maurer does a good job; shows up for work; knows and does what needs to be done and is reliable and truthful. He would like to have him back as an officer.”

Based on these findings, die board ordered Maurer reinstated.

When we review these findings to determine whether they are supported by substantial evidence, we must look only at the evidence supporting them. Even so, I would agree with the majority that there’s a real question here as to whether the board’s finding that there was no violation of the sheriff s truthfulness rules took place. But the ultimate factual question before the board was whether the sheriffs decision to terminate Maurer (for violating that policy standard) was reasonable, not whether there was a violation at all.

The majority concludes that the civil-service board made no explicit conclusion that firing Maurer wasn’t reasonable, apparently because it did not use those terms in its order. But that’s far too strict an interpretation of the board’s ruling under our standards of review. Boiled down, it’s clear that the board didn’t think it was reasonable to fire a 17-year department veteran for failing initially to report his role in causing a crack in the windshield when he tossed a vinyl folder at a horsefly.

Here, the ultimate question before the civil-service board was the reasonableness of the sheriff s decision. Denning appealed to the district court on the basis that the board had wrongly substituted its own judgment for that of Denning. But that’s exactly what the board is authorized by statute to do: The board is authorized to make a determination of reasonableness, a standard that necessarily implies the application of discretion. Moreover, under Ratley and the other cases I’ve cited, it’s clear that the board was acting *716in a quasi-judicial capacity, and it’s the quasi-judicial entity that exercises whatever discretion is present that’s of a judicial nature.

We also must decide whether the determination of reasonableness is a factual issue or a legal one. In a great many contexts, Kansas courts have held that the determination of reasonableness is a factual question to be resolved by the trier of facts, not by the court. E.g., Dreiling v. Davis, 38 Kan. App. 2d 997, 1003, 176 P.3d 197 (2008) (“Generally, reasonableness is a fact question.”). If the reasonableness issue is a factual question, as appears to be the case, we must again give great deference to the board’s finding. But even if the reasonableness issue here is more like a legal issue than a factual one, the entity that is to exercise whatever judicial discretion exists is the civil-service board, not the sheriff, the district court, or an appellate court.

The majority’s view differs from mine in part because it concludes that the first civil-service board’s findings are not supported by substantial evidence. The majority may be right with respect to the board’s finding that Maurer didn’t violate the sheriff s policy on truthfulness. While Sergeant Greenwood did testily that he found nothing untruthful in Maurer’s two written reports, Greenwood — and the majority — rightly criticize Maurer for what he omitted. But that doesn’t resolve this case because the board’s ultimate finding was that the sheriff s decision to terminate Maurer was unreasonable. And there’s substantial evidence to support that decision.

Another traditional rule applied when reviewing agency decisions in Kansas underscores that point — the findings and conclusions of such entities are not to be disturbed by a reviewing court unless they are “so wide of the mark as to be outside the realm of fair debate.” Kaufman, 248 Kan. at 961; Central Kansas Power Co. v. State Corporation Commission, 206 Kan. 670, 675, 482 P.2d 1 (1971). The board’s conclusion that Maurer should not have been fired — -when we limit our review to the facts supporting that conclusion — surely is not outside the realm of fair debate.

Let’s consider some additional facts supporting the board’s conclusion on this point. Maurer is a veteran of the United States Marine Corps, in which he served 6 years on active duty. At the *717time of his firing, Maurer continued to serve in the Marine Corps reserves; he had been a reserve for 17 years. He had also been a sheriffs deputy for 17 years. Maurer’s direct supervisor, Sergeant Greg Shelton, said he considered Maurer a good officer and that he’d take him back. Lieutenant Pinkelman, a higher-level supervisor, agreed that Maurer was “an acceptable officer.” In 17 years, Maurer had had only one relatively minor disciplinaiy issue: he had called the receptionist at a doctor’s office “sweetheart,” apparently when Maurer had brought an inmate there, and Maurer was told not to do anything like that again.

After providing good service in the sheriff s department for 17 years, Maurer tossed a vinyl plastic accordion folder (with metal edges only on part of the front flap) at the inside of a patrol car windshield in an attempt to kill a horsefly. The other officer who was present, Deputy Darrin Eddy, wrote in his reports that Maurer hadn’t thrown it very hard, and he testified that it was not thrown “in an aggressive manner.” Afterwards, Maurer and Eddy noticed a 2- to 3-inch crack in the windshield. Although they had not noticed a chip in the windshield beforehand, Maurer believed that there must have been a preexisting chip caused by a rock at that location before he tossed the notebook. Most of the department’s vehicles have rock chips because of the number of miles they’re driven, and the department generally doesn’t repair them until a crack begins to form.

Maurer initially left a note for a supervisor merely indicating that the windshield had a crack in it. The note, attached to the car keys, said “crack in windshield,” and above that it said “ — rock.” Pinkelman said that there weren’t any written policies at that time about reporting damage to a vehicle but that “something to notify the sergeant that there is damage to the vehicle so the car won’t be sent out with another officer on the following day” would be appropriate. Pinkelman said that the initial note provided that information. Greenwood asked Maurer to prepare a written report, and Maurer prepared one that said he had tried to kill a horsefly and that this had apparently aggravated an existing chip in the windshield. Pinkelman asked for a second report because Maurer had not said that he had used a specific object in the attempt to kill the *718horsefly. Maurer wrote a second report, saying that he had taken a “blue smooth notebook” and attempted to kill the horsefly with it. He explained the damage by saying, “I believe that striking the windshield aggravated a previous rock chip that grew into a 'spider web.’ ” Pinkelman considered the second written report adequate.

If we are to stay true to the standard of review — under which we may look only at the evidence that supports the board’s decision — we must also accept Maurer’s view that there had to have been a preexisting rock chip in the windshield that expanded unexpectedly when hit with the large plastic folder. Eddy testified to the lack of force when Maurer tossed the folder at the horsefly, and Eddy said that the window likely was weakened, or the day was particularly hot, for the impact to have caused a crack in the windshield. The sheriff s department sent the windshield to its criminalistics laboratory for detailed analysis, and the examining scientist found “a chipped surface” on the exterior of the glass, which would be consistent with the rock-chip theory. But the examining scientist couldn’t determine what that meant because in tests she found that a low-velocity projectile could cause damage from an impact to either side of a laminated-glass windshield. If there was a preexisting rock chip, though, Maurer’s original note (“crack in windshield” and “ — rock”) seems more reasonable than if there was not.

Again, though, that’s not the question we must answer. We must decide whether the board’s decision — that it wasn’t reasonable to fire 17-year-veteran Maurer for initially failing to disclose that he’d caused at least tire exacerbation of a preexisting chip by tossing something at the windshield — was so wide of the mark as to be outside the realm of fair debate. K.S.A. 19-4327(b) leaves it within the discretion of the civil-service board to make the call. The board decided it wasn’t reasonable to fire Maurer on these facts, a conclusion within the realm of fair debate, and we are required to uphold that decision.

The majority concludes that the civil-service board’s role is somehow limited only to determining whether some evidence supports the sheriff s decision if the board has not adopted written operating rules and procedures. Nothing in K.S.A. 19-4327(b) sug*719gests that the board’s role differs based on whether it has adopted such rules.

Reasonable people could disagree about whether it was reasonable to fire Maurer based on the facts as found by the civil-service board, and reasonable people could make different inferences than the board did from the evidence in this case. But a reviewing court does not reweigh the evidence or determine whether the evidence could have supported different findings; we look only to see whether there is sufficient.evidence supporting the findings the board made. See Kansas State Board of Education, 274 Kan. at 259. Moreover, the legislature has by statute made the civil-service board a quasi-judicial entity, and the board therefore makes its own factual findings and is charged with exercising whatever discretion exists here. Reasonableness is a discretionary call, and the board makes it. On these facts, I believe that we must uphold its decision.

Other Issues

In addition to the claim that the first civil-service-board decision wasn’t supported by substantial evidence, Sheriff Denning has also contended that the board acted outside its authority, that it acted arbitrarily, and that its actions were tainted by a failure to adopt written procedures before the hearing. None of these arguments has merit.

The first objection — that the board acted outside its authority— is merely the sheriff s claim that the board was required to defer to his decision unless he had failed to provide a fair hearing to Maurer before dismissing him. In my view, that’s simply wrong as a matter of law: K-S.A..19-4327(b) gave the civil-service board the discretion to decide whether firing Maurer was reasonable, and K.S.A. 19-805(d) expressly made the sheriffs decision “subject to” the civil-service system.

The second objection — that the board acted arbitrarily and capriciously — is just another restatement of this same argument. The sheriffs claim is that the board “acted arbitrarily and capriciously by substituting its judgment for that of the Sheriff.” The majority concludes that the board acted arbitrarily because it disregarded contrary evidence, but as I have already explained, there is sub*720stantial evidence to support the ultimate factual finding made by the board — that the sheriff s decision to fire Maurer in these circumstances was unreasonable.

The last objection — that the board didn’t have written procedures in place for its hearing — -was never made to the civil-service board and is therefore not properly raised here. See Johnson v. Kansas Neurological Institute, 240 Kan. 123, 126, 727 P.2d 912 (1986) (issues not raised in agency hearing generally may not be raised on appeal). While there are some limited exceptions to the requirement that an objection be raised in an administrative hearing, Denning has not argued any of those in his brief. Thus, we merely need to determine whether Denning made the objection that the board had no written procedures in place during the board’s hearing.

Denning cites no place in the record where he made this objection before or at the first civil-service board hearing. Instead, he cites an affidavit he submitted to the district court in the appeal of that ruling, an affidavit in which the sheriff referenced attempts outside of any specific civil-service board hearing to have the County Commission change the rules for the civil-service board’s work. In the affidavit, Denning said that he had “pointed out to the County Commissioners the [board’s] lack of compliance with statutory requirements and confusion over the scope of review in disciplinary hearings,” and that county legal staff were preparing proposed changes to the system. But presenting such an issue to county officials is not the same as making an objection during a contested quasi-judicial hearing: Deputy Maurer is a party in this proceeding but not a member of the County Commission. Nor has the sheriff identified any way in which a failure to have specific written procedures caused him any prejudice. The sheriffs affidavit makes clear that his conclusion about the “confusion over the scope of review in disciplinary hearings” relates not to procedural matters in general but specifically to whether the board has the discretionaiy call as to the reasonableness of a firing. The sheriff has consistently argued that the board’s role is limited; in the affidavit, he said that “it [was] inappropriate for the [board] to override a termination decision unless they make a finding dismissal *721was for political, religious or racial reasons.” In my view, that’s not the system the legislature has established.

It’s true that K.S.A. 19-4327(e) says that a civil-service board “shall establish such rules as may be necessary to give effect to the provisions of the above section,” under which it hears these dismissal appeals. No rules are needed to advise the sheriff that the civil-service board makes the reasonableness determination; that’s established by statute. Sheriff Denning has not shown any confusion about any other matter, and Denning knew that Maurer contended that the civil-service board had the authority to make the reasonableness decision. Even on appeal, Denning has not identified any additional evidence that he would have presented had he operated under a proper interpretation of the board’s authority. We should not hear his objection since it wasn’t made to the civil-service board, and even if we were to consider it, the error was harmless because he hasn’t shown any way in which he was prejudiced.

In sum, I conclude that the first civil-service board acted within its authority and that its decision that the sheriff s termination of Maurer wasn’t reasonable is supported by substantial evidence. The district court therefore should have affirmed the first civil-service board ruling. Because the matter ends at that point, I do not address whether the County Commission has the authority by charter amendment to change the role of the civil-service board created by the legislature. I would also note that the parties have not addressed in their briefs whether the County’s home-rule powers would allow it to limit the authority that K.S.A. 19-805(d) and K.S.A. 19-4327(b) otherwise give to the civil-service board. See K.S.A. 19-101a(14) (county may not use home-rule powers to exempt itself from or effect changes to K.S.A. 19-805); K.S.A. 19-805(d) (“Any personnel action taken by the sheriff . . . shall be subject to . . . any applicable . . . civil service system.”).

I would reverse the district court and remand the case with directions to enter judgment affirming the first civil-service board order.