Connelly v. Kansas Highway Patrol

271 Kan. 944

26 P.3d 1246

JOHN W. CONNELLY, PAUL L. WADE, JR., MELVIN M. WEDERMYER, and WILLIAM R. BARRETT, Plaintiffs/Appellees/ Cross-appellants, v. STATE OF KANSAS, KANSAS HIGHWAY PATROL, et al., Defendants/Appellants/Cross-appellees.

No. 84,338.

Supreme Court of Kansas.

Opinion filed July 20, 2001.

Anne L. Baker, of Wright, Henson, Somers, Sebeluis, Clark & Baker, LLP, of Topeka, argued the cause, and Thomas E. Wright, of the same firm, was with her on the briefs for appellants/cross-appellees.

Alan L. Rupe, of Husch & Eppenberger, LLC, of Wichita, argued the cause, and Kelly J. Johnson, of the same firm, was with him on the briefs for appellees/ cross-appellants. The opinion of the court was delivered by

LARSON, J.:

This action culminates almost 8 years of litigation before the district courts and administrative bodies. The State of Kansas Highway Patrol now appeals from a jury verdict in favor of four highway patrol trooper plaintiffs in a tort action for retaliatory discharge premised on their contention that their positions were eliminated in retaliation for whistleblowing activities. The troopers have cross-appealed, contending the trial court erred in affirming the Kansas Civil Service Board's (KCSB) denial of relief to three of the troopers under the Kansas Whistleblower Act, K.S.A. 75-2973, and in entering judgment in favor of the State of Kansas on all of the plaintiffs' alleged causes of actions for violations of their right of free speech under 42 U.S.C. § 1983 (1994).

Matters are further complicated by the facts that three of the plaintiffs were classified state employees with permanent status and that the fourth did not have permanent status; contradictory evidentiary findings from a KCSB administrative hearing and a jury trial in district court; and several changes in the caselaw relating to sovereign immunity and the exclusive remedy of state statutes which occurred during the pendency of these actions—especially during their appeals. See Alden v. Maine, 527 U.S. 706, 144 L. Ed. 2d 636, 119 S. Ct. 2240 (1999); Prager v. Kansas Dept. of Revenue, 271 Kan. 1, 20 P.3d 39 (2001); Goldbarth v. Kansas State Board of Regents, 269 Kan. 881, 9 P.3d 1251 (2000); Schall v. Wichita State University, 269 Kan. 456, 7 P.3d 1144 (2000).

Statement of facts and proceedings

The plaintiffs in this case were employees of the Kansas Highway Patrol (Patrol). John W. Connelly started in 1960, Paul L. Wade, Jr., in 1962, Melvin M. Wedermyer in 1959, and William R. Barrett in 1975. Connelly, Wade, and Wedermyer retired as troopers from the Patrol but accepted positions, as did Barrett, as inspectors in the Motor Carrier Inspection Troop (MCIT).

In 1988, the Patrol assumed the responsibility, under the MCIT, of enforcing laws relating to the size, weight, and load of motor vehicles and trailers, K.S.A. 66-1318 and K.S.A. 66-1324, plus the motor carrier inspection stations, K.S.A. 66-1320. By the end of 1992, all four plaintiffs were working as Lieutenants, the highest ranking field positions in the MCIT. The person in command of the MCIT was Major Dennis Tangeman. Connelly, Wade, and Wedermyer reported to Major Tangeman and Barrett reported to Captain Ron Desch.

In September 1992, Governor Joan Finney appointed Colonel Lonnie McCollum as Superintendent of the Highway Patrol. Col. McCollum had the opinion the Patrol was top heavy in management positions and that the budget should be reprioritized. Col. McCollum served until he retired in March 1999. His assistant superintendent was Lt. Col. Terry Scott.

Sometime after his appointment, Col. McCollum was asked by Governor Finney, "What is the problem with the white cars?" MCIT cars were white and the common term used to describe them was "white cars." Complaints about the MCIT were being received from citizens, legislators, other agencies, and the Patrol's own troopers. Kansas has a long history of selective enforcement of weight laws. When Col. McCollum became Superintendent, there was a 5,000 pound overweight tolerance with respect to farm trucks and a 1,000 pound tolerance as to nonfarm vehicles. The limited number of MCIT personnel has always precluded thorough enforcement of weight laws. About this same time, the Federal Highway Administration began pressuring Col. McCollum to strictly enforce the State's weight laws or face forfeiture of federal funds in the approximate amount of $194 million.

According to testimony of all four plaintiffs, Major Tangeman had told them Col. McCollum's job was in jeopardy if the MCIT did not stop ticketing farmers. In response to this pressure, in October 1992, Col. McCollum purportedly instructed the MCIT employees to "leave the farmers alone." The mobile units were instructed to be where the farmers were not. Plaintiff Wade testified, "We had to close our eyes, look the other way, totally leave them alone."

All four of the plaintiffs made it clear to their supervisors that they objected to this order. Lt. Wedermyer listed the order as the number one problem of the MCIT at a troop commanders meeting. Lt. Connelly testified he felt the policy violated his oath of office and that he had protested loudly. All the plaintiffs testified that due to the paramilitary organization of the Patrol it was appropriate to raise their concerns about Col. McCollum's order internally through the chain of command to their respective supervisors, and all four plaintiffs did so.

In January 1993, the Patrol was informed the MCIT budget had to be reduced by approximately $500,000. Lt. Col. Scott recommended that the agency request restoration of approximately $330,000 to meet payroll and work on a proposal to address all MCIT problems.

In late February, Lt. Col. Scott proposed four options to Col. McCollum to address the problems with MCIT. The first opinion was to do nothing, which was immediately rejected. The second option was to abolish the entire MCIT and transfer its enforcement responsibilities to highway patrol troopers. This was the option recommended by Lt. Col. Scott. Col. McCollum rejected this option because he felt it would disrupt the lives of too many employees. The third option was to proceed with the restructuring Major Tangeman had initiated for the three MCIT regions, with a captain and a lieutenant in charge of each region. Implementing that option would have cost about $350,000 more than the amount appropriated. The fourth option was to integrate the MCIT under the command structure of the Patrol, with the result of eliminating the separate supervisory structure of the MCIT. Col. McCollum met with the Governor and the budget director to appeal reductions but became committed to the fourth option, the plan of placing the MCIT directly under the command of the Patrol. If this was done, it was obvious that the lieutenant positions in the MCIT would no longer be necessary.

In April 1993, a letter was sent to all Patrol employees advising of a restructuring of the Patrol including the MCIT and that a retreat would be held to solicit input. On May 6, 1993, approval of the Department of Administration was obtained to reallocate the MCIT lieutenant positions, and Connelly, Wade, Wedermyer, and Barrett were informed their positions were being eliminated. All four were advised of bumping rights, with Wade, Wedermyer, and Connelly choosing to be laid off and Barrett remaining employed by the Patrol.

The plaintiffs then voiced their objections to the Kansas Attorney General concerning the "leave the farmers alone" policy on June 1, 1993, and through newspaper articles published in the Kansas City Star on June 4, 1993.

Thereafter, the plaintiffs appealed the layoffs to the KCSB and filed suit against McCollum, Scott, and the State of Kansas for common-law retaliatory discharge and violation of First Amendment rights under 42 U.S.C. § 1983.

After initial appeals concerning jurisdiction determined that the plaintiffs had alleged a violation of K.S.A. 75-2973 and jurisdiction existed before the KCSB, a 5-day hearing was held where the plaintiffs claimed the reorganization violated K.S.A. 75-2973 because it was undertaken in retaliation for their complaints. The Patrol contended the reorganization was made because of budgetary restraints and to eliminate unnecessary middle management positions and improve service at lower costs to the State.

The KCSB order denied the plaintiffs relief and included extensive findings of fact and the following conclusions of law:

"The [defendant's] action eliminating the positions of MCI Lieutenant was a reasonable decision made in response to the severe budgetary constraints imposed on the agency by the Governor and the Legislature for FY 1993 and FY 1994. Furthermore, the decision was one part of a reasonable comprehensive approach to resolving the numerous problems that had been associated with MCIT over many years. Under that approach, the agency instituted a reorganization to integrate MCIT within the regular troop command structure of the Highway Patrol, thereby eliminating the need for the MCIT Lieutenant positions. The reorganization... was designed to eliminate unnecessary middle management positions and convert them to direct service positions at a lower cost to the state. The decision to reorganize MCIT and the agency as a whole was made in the legitimate exercise of statutory discretion delegated to the Superintendent of the Highway Patrol. K.S.A. 66-1318; 66-1319; 66-1324; 74-2106; 74-2112; 74-2115.

....

"The appellants have not met their burden of establishing that the decision to eliminate the four MCI Lieutenant positions was a retaliatory action against any of the appellants. The decision to eliminate their positions could not have been made in retaliation for any external reports they made to the Attorney General, the press, or any other person outside the Highway Patrol, because all of the reports to persons outside the agency were made after the decision was made and the

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