Bruce v. Kelly

514 P.3d 1007

Mark A. BRUCE, Plaintiff,

v.Laura KELLY, in Her Official Capacity as Governor of the State of Kansas, Will Lawrence, in His Individual Capacity as Chief of Staff to Governor Laura Kelly, and Herman T. Jones, in His Official and Individual Capacities as Superintendent of the Kansas Highway Patrol, Defendants.

No. 124,415

Supreme Court of Kansas.

Opinion filed August 5, 2022.

Alan V. Johnson, of Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., of Topeka, argued the cause and was on the briefs for plaintiff.

David R. Cooper, of Fisher, Patterson, Sayler & Smith, LLP, of Topeka, argued the cause and was on the brief for defendants.

The opinion of the court was delivered by Wall, J.:

This opinion addresses two questions of law certified to our court by the United States District Court for the District of Kansas. Certified question proceedings are unique because the lawsuit is not pending before any Kansas state court. Even so, the Legislature has granted the Kansas Supreme Court jurisdiction to answer questions of state law raised by a federal court (or other foreign jurisdiction) when our responses may control the outcome of the matter pending before the certifying court and no Kansas precedent addresses the questions certified.

Here, the certified questions arise from a federal civil lawsuit Mark A. Bruce filed against Governor Laura Kelly, Chief of Staff to the Governor, Will Lawrence, and Kansas Highway Patrol Superintendent Herman T. Jones (Defendants). Bruce worked for the Kansas Highway Patrol (KHP) for 30 years. He was promoted to the rank of major in March 2008 and successfully completed a six-month probationary period in that role. In April 2015, Governor Sam Brownback appointed Bruce to serve as superintendent of the KHP. He continued in this role until March 2019, when Bruce alleges Defendants forced him to resign his employment.

Bruce argues K.S.A. 74-2113 required Defendants to return him to the rank he held before his appointment to Superintendent—a return to the rank of major with permanent status in the classified service—rather than terminate his employment with the KHP. Bruce claims Defendants’ refusal to continue his employment, as required by statute, gives rise to constitutional due process claims under 42 U.S.C. § 1983 (2018) and a state law claim for tortious interference with a business relationship. Defendants, however, contend Bruce had no right to continued employment. First, Defendants argue K.S.A. 74-2113 places the rank of major within the unclassified service. And employees in the unclassified service have no right to continued employment. Second, even if K.S.A. 74-2113 defines the rank of major within the classified service, Defendants argue K.A.R. 1-7-4 (2021 Supp.) would have required Bruce to serve another probationary period upon his return to the rank of major, during which his employment could be terminated at will. This means Defendants could end the employment relationship for any or no reason.

Given the parties’ conflicting interpretations of the statutes and administrative regulations, coupled with the lack of controlling Kansas precedent interpreting these provisions, the United States District Court certified two questions:

"1. Does Kan. Stat. Ann. § 74-2113 define the rank of Major in the KHP as a member of the unclassified or classified service of the Kansas civil service?

"2. If Kan. Stat. Ann. § 74-2113 defines the rank of Major in the KHP as a member of the classified service, does Kan. Admin. Regs. § 1-7-4 require a former member of the classified service—who already has completed a required probationary period for the classified service—to serve another six month probationary period in the classified service after serving as a member of the unclassified service?" Bruce v. Kelly , No. 20-4077-DDC-GEB, 2021 WL 4284534, at *32 (D. Kan. 2021) (unpublished opinion).

As to the first question, we hold that K.S.A. 74-2113 defines the rank of major within the classified service under the Kansas Civil Service Act (KCSA), K.S.A. 75-2925 et seq. As to the second question, we hold that K.A.R. 1-7-4 (2021 Supp.) does not require a former KHP superintendent or assistant superintendent to serve another probationary period when returning to their former rank as contemplated in K.S.A. 74-2113(a).

FACTS AND PROCEDURAL BACKGROUND

In its certification order, the United States District Court set forth these facts pertinent to the certified questions:

"The KHP is an agency of the State of Kansas that enforces traffic, criminal, and other laws of Kansas throughout the state. In June 1989, the KHP hired plaintiff as a trooper. On March 14, 2008, the KHP promoted plaintiff to the position of Major. After his promotion, plaintiff served a probationary period of six months, as Kan. Stat. Ann. § 75-2946 requires. After this probationary period, plaintiff attained permanent status as a Major in the classified service.

"On April 2, 2015, then-Governor of Kansas, Sam Brownback, appointed plaintiff to serve as the Superintendent of the KHP, at the pleasure of the Governor. In November 2018, Laura Kelly was elected as the Governor of Kansas. As Governor-elect, Ms. Kelly announced that plaintiff would remain as KHP Superintendent.

"On March 28, 2019, Governor Kelly's Chief of Staff, Will Lawrence, summoned plaintiff to Mr. Lawrence's office for a meeting. In the meeting, Mr. Lawrence told plaintiff that Governor Kelly was not going to retain him as KHP Superintendent. And[ ] Mr. Lawrence told plaintiff ‘that "we need you to resign." ’ After further discussion, plaintiff told Mr. Lawrence that he would resign. Mr. Lawrence then handed plaintiff a pre-prepared resignation letter. ... Plaintiff signed the resignation letter, and he handed it back to Mr. Lawrence.

"Mr. Lawrence then handed plaintiff a pre-prepared letter dated March 18, 2019[,] and signed by Mr. Lawrence. The letter stated in relevant part:

‘This letter is to confirm receipt and acceptance of your resignation from your position as the Superintendent of the Kansas Highway Patrol (KHP), effective April 6, 2019. Effective immediately, you are relieved of all duties and authority and are being placed on administrative leave until the effective date of your resignation.

....

‘Thank you for your service to the State of Kansas. I wish you success in your future endeavors.’

"During the March 28, 2019 meeting, Mr. Lawrence never discussed with plaintiff the option of returning to plaintiff's former rank of Major. Based on plaintiff's March 28 conversation with Mr. Lawrence and the language of Mr. Lawrence's letter, plaintiff understood and believed that Governor Kelly was dismissing him from all employment with the KHP. As a consequence, on March 29, 2019, plaintiff initiated email communications with Mr. Lawrence about retiring from the KHP. Plaintiff initiated these communications because ‘he understood and believed that he had no other choice but to retire from the KHP.’

"On April 2, 2019, plaintiff sent a letter to Governor Kelly, with a copy to Mr. Lawrence. The letter provided, in relevant part:

‘This letter serves as notice that I will retire from the Kansas Highway Patrol effective May 1, 2019. My last day on the payroll will be April 8, 2019.

....

‘I am proud to have had the honor to serve and lead the Kansas Highway [Patrol] for the past 30 years. I wish the Agency and its employees nothing but the best in the future.’ " 2021 WL 4284534, at *3-4.

Bruce later sued Defendants in the United States District Court for the District of Kansas. He alleged Defendants constructively discharged him from the KHP despite the requirement in K.S.A. 74-2113 to return him to the rank of major after his term as superintendent ended. He asserted claims under 42 U.S.C. § 1983 against Governor Kelly, in her official capacity, and Lawrence, in his personal capacity, alleging they deprived him of his property interest in continued employment with the KHP without due process of law. He also brought a claim under the Kansas Tort Claims Act against Lawrence, alleging Lawrence tortiously interfered with Bruce's prospective business relations with the KHP. Bruce brought a fourth claim against his successor as KHP superintendent, Herman T. Jones, but that claim is not relevant to this opinion.

Defendants moved to dismiss Bruce's complaint. They argued, in part, that Bruce had failed to state a § 1983 claim for due process violations or a state law tortious interference claim because Bruce had neither a protected property interest nor a prospective business advantage in continued employment with the KHP. Defendants maintained that the KHP had declassified the rank of major in 2016, and the Legislature amended K.S.A. 74-2113 in 2018 to reflect this change. According to Defendants, the rank of major was no longer within the classified service, so Bruce did not have a property interest in being returned to the rank of major with permanent status in the classified service. In the alternative, if majors were still within the classified service, Defendants argued that K.A.R. 1-7-4 (2021 Supp.) would have required Bruce to serve a six-month probationary period upon returning to the classified service, and during this period, Defendants could terminate his employment at will.

In response, Bruce argued that K.S.A. 74-2113 continues to define majors as within the classified service. Bruce also claimed that K.A.R. 1-7-4 (2021 Supp.) would not require him to serve a probationary period upon his return to the rank of major because he completed his mandatory probationary period after KHP appointed him to this rank in 2008. Finally, Bruce noted that K.S.A. 74-2113 required that he be "returned" to the rank he held when appointed as superintendent. He construed this provision to require KHP to place him in the same rank, classification, and status he had attained before his appointment to superintendent in 2015—the rank of major with permanent status in the classified service.

In...