By Tim Carpenter
Topeka, Kan. (Kansas Reflector) — The Kansas Supreme Court issued an opinion Friday clarifying two points of state employment law that potentially bolster a former Kansas Highway Patrol superintendent’s claim he was ousted from the law enforcement agency in violation of his right to remain after demoted to the rank of major.
The U.S. District Court judge considering former Superintendent Mark Bruce’s wrongful termination lawsuit requested the state’s highest court interpret points of state law to guide the federal court’s evaluation of the case. The judge said applicable state law was “not a model of clarity” and was clouded by the 2018 Legislature’s tinkering with the Kansas Civil Service Act.
The state Supreme Court heard oral argument in the case during an April out-of-town docket in Great Bend. At that time, Justice Dan Biles said the statute was so garbled it would require the Supreme Court dig deep to decipher intent of lawmakers.
Bruce was forced out in March 2019 as superintendent and colonel of KHP — he signed resignation and retirement papers — after Gov. Laura Kelly concluded he mishandled allegations Bruce’s second-in-command engaged in possible domestic violence in Missouri. Former Lt. Col. Randy Moon was investigated but not charged in a 2018 disturbance with a woman at a hotel in Excelsior Springs, Missouri. Moon departed KHP along with Bruce.
In the subsequent federal lawsuit against Kelly, the governor’s chief of staff and the KHP’s current superintendent, Bruce’s lawyers claimed he had the right under Kansas law to continue as a classified employee with KHP at his previous rank of major. Kelly administration lawyers argued Bruce was wrong and sought dismissal of the lawsuit.
In a decision written by Supreme Court Justice K.J. Wall, he said state law defined the rank of KHP major as within the classified or civil service system. That’s an important distinction because only employees in classified positions of state government had a right to continued employment. Unclassified workers in Kansas are considered at-will employees subject to immediate termination by the appointing authority.
In addition, Wall’s opinion said KHP staff who attained permanent status in the classified service before appointed to the agency’s top management jobs didn’t have to serve an employment probation period at a new rank when demoted from the position of KHP superintendent. This interpretation could be significant in the lawsuit because civil service employees serving a probationary period don’t have a right to continued employment.
During oral argument, Bruce attorney Alan Johnson said the Kelly administration was responsible for his client’s “constructive discharge from employment” without due process after disregarding what amounted to a property interest in a job as KHP major. Bruce worked for KHP for 30 years. He was appointed superintendent in 2015 by Gov. Sam Brownback, and he was retained when Kelly took office in January 2019.
Wall’s opinion said the Supreme Court delved only into questions posed by U.S. District Court Judge Daniel Crabtree. The process of seeking answers to “certified” questions from the federal court is unusual because the lawsuit is not pending before any Kansas state court.
“In answering these certified questions,” Wall wrote, “this court will not decide questions of law outside the scope of the certified question nor will this court decide any question of fact.”
Chief Justice Marla Luckert concurred with the court majority’s response, but labeled the applicable state law so ambiguous each side in the dispute could make a compelling argument why language of the statute favored their perspective.