Frazier v. City of LeRoy

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Daniel C. Frazier, Appellant, v. City of LeRoy, Kansas, Appellee.

No. 125,765

Court of Appeals of Kansas

February 16, 2024

NOT DESIGNATED FOR PUBLICATION

Appeal from Coffey District Court; ERIC W. GODDERZ, judge. Submitted without oral argument. Affirmed.

Mark J. Galus and Donald R. Aubry, of The Aubry Law Firm, P.A., of Overland Park, for appellant.

Ryan K. Meyer and Lyndon W. Vix, of Fleeson, Gooing, Coulson &Kitch, L.L.C., of Wichita, for appellee.

Before BRUNS, P.J., PICKERING, J., and TIMOTHY G. LAHEY, S.J.

MEMORANDUM OPINION

PICKERING, J.

The City of LeRoy, Kansas (the City), passed a resolution and order for a citizen to remove a vicious dog from the city limits as a nuisance abatement. The resolution required service of the abatement order to the dog's owners by the Chief of Police, Daniel C. Frazier. He refused to serve the order, claiming it was an unlawful order. The City terminated Frazier's employment for insubordination.

Frazier brings this appeal against the City, arguing that the City's decision to terminate his employment as the Chief of Police was arbitrary or capricious, outside the scope of its authority, and unsupported by substantial competent evidence. After reviewing the arguments and record, we find the district court's decision that the City's decision to terminate him was proper. Thus, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

From January 1, 2021, to August 2, 2021, Frazier was employed as the City's police chief. In July 2021, a dog owned by Charlie and Julie Patterson went into another homeowner's yard and attacked their dog. Tre Copeland and Chanda Acklin were the owners of the dog that was attacked. Eddie Skaggs who saw the dog fight, attempted to subdue the Pattersons' dog and eventually used an electric "cattle prod" to shock the Pattersons' dog and separate the dogs. Because of the Copeland/Acklin dog's injuries sustained in the dog attack, the dog had to be euthanized.

On July 19, 2021, the LeRoy City Council conducted a special meeting in part, to discuss the incident with the Pattersons' dog. Frazier was present at the special meeting. Both the dog owners and Skaggs provided statements about the dog fight and the Pattersons' dog's history of aggressive behavior. The Pattersons were asked to remove their dog from the city limits, but the Pattersons refused. The city council then adopted Resolution No. 2021-5, which declared that the Pattersons' dog was a nuisance, demanded that the Pattersons remove their dog from the corporate limits of the city, and directed Frazier, as Chief of Police, to serve the order to abate nuisance on the Pattersons. The order gave the Pattersons 10 days to remove the dog or request a hearing before the City's governing body. If the Pattersons failed to do either, the order directed Frazier to have the dog removed from the city and impounded.

After the resolution was passed by the council, the mayor signed the order to abate nuisance and directed Frazier to serve it. Frazier refused to serve the order. He contended that his refusal to serve the order was because he believed it to be unlawful and against his oath as a commissioned law enforcement officer.

On July 26, 2021, in a written notice, the mayor, who serves as the supervisor to the Chief of Police, formally suspended Frazier from his duties as police chief for insubordination. The mayor characterized the insubordination as "evidenced by your refusal to comply with my July 19 directive that you personally serve Charlie and Julie Patterson with the City Council's abatement order to remove their vicious and dangerous dog from the city."

The city council scheduled a pretermination hearing for the next week, on August 2, 2021. Frazier, who earlier had refused to resign, appeared with his attorney. Frazier acknowledged that the mayor had directed him to serve the order to abate nuisance and that he had refused to comply. At the end of the pretermination hearing, the city council unanimously voted to terminate Frazier's employment for insubordination and passed Resolution No. 2021-6. This resolution terminated Frazier's position as Chief of Police.

Frazier filed a notice of appeal with the city clerk. He later petitioned for judicial review under K.S.A. 60-2101(d) on February 1, 2022. His petition claimed that (1) the City exceeded the scope of its authority; (2) the City's decision was not supported by substantial competent evidence and (3) the City's decision was arbitrary or capricious.

On June 27, 2022, after briefing from both parties, the district court heard arguments. At the end of the hearing, the district court denied Frazier's petition for judicial review. The court found that Frazier lacked standing to challenge whether the order he refused to serve was unlawful; the City had "followed the proper procedure with respect to Frazier's termination;" and "[t]he City's decision to terminate Frazier's employment was within the scope of its authority, was supported by substantial competent evidence, and was not fraudulent, arbitrary, or capricious." The court also noted that Frazier's termination was "causally connected to his decision to refuse to serve the Pattersons with the Order." The court found: "Frazier had a duty, as the police chief, to serve the Resolution and Order on the Pattersons. Frazier did not have authority to make a determination, on his own, as to the lawfulness of the order."

ANALYSIS

Frazier appeals the district court's denial of his petition for judicial review and renews his arguments challenging his termination. Frazier does not, however, challenge the district court's ruling on standing. To clarify Frazier's lawsuit is challenging his termination, rather than attempting to invalidate the City's resolution. We believe, moreover, that the district court's ruling on standing does not preclude Frazier from challenging his termination. As such, we assume standing and, focusing on the merits of this appeal, we review Frazier's three arguments regarding the City's termination decision: (1) The City's actions were arbitrary or capricious; (2) the City's actions were outside the scope of its authority; and (3) the city council's order was unsupported by substantial competent evidence. Frazier asserts that he was justified in refusing to carry out an unlawful order and "was therefore not insubordinate."

Frazier sought relief in the district court under K.S.A. 60-2101(d), which allows judgments or final orders made by political or taxing subdivisions, exercising judicial or quasi-judicial functions, to "be reversed, vacated or modified by the district court on appeal." The district court reviews a challenged order to determine whether the political or taxing subdivision'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); see also Landau v. City Council of Overland Park, 244 Kan. 257, 273, 767 P.2d 1290 (1989) (noting municipal and county actions specifically excluded from K.S.A. 77-601 et seq., now the Kansas Judicial Review Act).

On appellate review, we apply these same standards de novo without any deference to the district court's decision. Denning, 299 Kan. at 1075-76. Thus, we review the City's decision to terminate Frazier as if the appeal had been made directly to us. Our scope of review also is limited "to determining whether the challenged order was within the [City's] scope of authority, was substantially supported by the evidence, or was fraudulent, arbitrary, or capricious." 299 Kan. at 1076.

The City's conduct was not arbitrary or capricious.

Frazier first contends that the city council's order was "arbitrary or capricious," and attacks the City's conduct in terminating his employment. In his argument, he does not also assert the alternative, namely that the City acted fraudulently. Thus, we will not consider whether the City acted fraudulently. See Villa v. Kansas Health Policy Authority, 296 Kan. 315, Syl. ¶ 8, 291 P.3d 1056 (2013).

The Kansas Supreme 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.'" Robinson v. City of Wichita Employees' Retirement Bd. of Trustees, 291 Kan. 266, 271, 241 P.3d 15 (2010). A decision by a political subdivision "is arbitrary or capricious if it is unreasonable, without foundation in fact, not supported by substantial evidence, or without adequate determining principles." Denning vs. Johnson County Sheriff's Civil Service Board, 46...