KANSAS OFFICE of
  REVISOR of STATUTES

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75-2949. Dismissals, demotions and suspensions; basis; procedure; hearings; status after demotion; employee relieved of duties pending investigation. (a) An appointing authority may dismiss or demote any permanent employee in the classified service when the appointing authority considers that the good of the service will be served thereby. For disciplinary purposes, an appointing authority may suspend without pay a permanent classified employee for a period not to exceed 30 calendar days. No permanent employee in the classified service shall be dismissed, demoted or suspended for political, religious, racial or other nonmerit reasons.

(b) Prior to dismissal, demotion or suspension of a permanent employee in the classified service, the appointing authority shall furnish the employee by certified mail to the employee's last known address, return receipt requested, or by personal delivery, a statement in writing specifically setting forth the reasons and factual basis therefor. A copy of such statement shall be furnished immediately to the director. This statement shall contain notice of the proposed dismissal, demotion or suspension and shall specify the proposed effective date thereof. Except as otherwise provided in the Kansas civil service act, a proposed suspension, demotion or dismissal shall become effective no less than three calendar days nor more than 14 calendar days following the date the notice of such proposed suspension, demotion or dismissal is personally delivered to the employee or deposited with the post office as certified mail. If in the opinion of the appointing authority conditions warrant, the appointing authority may relieve the employee of duties or change the duties of the employee during such period. If the employee is relieved from duty during such period, the employee may be continued in pay status, or placed on leave of absence without pay by the appointing authority. In the statement proposing suspension, demotion or dismissal, the appointing authority shall offer the employee who is proposed to be suspended, demoted or dismissed an opportunity to reply in writing, or appear in person, or both, before the appointing authority or a designated representative of the appointing authority, on the issue of the proposed suspension, demotion or dismissal prior to the time such suspension, demotion or dismissal is specified by the notice to become effective. The statement shall specify the date, time and place by, or at which, the employee may reply in writing or appear, or both. If the employee chooses to appear in person on the issue of the proposed action, the employee may be represented by a person of the employee's choice.

(c) Upon request by the employee, or upon the initiative of the appointing authority, the appointing authority may extend the time for reply or appearance, or both, if the circumstances warrant. Notice of any such extension shall be furnished to the employee and to the director of personnel services. The proposed suspension, demotion or dismissal shall not become effective until after the extended period has expired.

(d) Following the employee's response to the opportunity to reply to the proposed action, or upon expiration of the time for such reply, if no reply is made, the appointing authority, or the designee of the appointing authority, shall notify the employee of the final decision on the proposed action. Such notice shall be in writing and shall be sent by certified mail to the employee's last known address or personally delivered to the employee on or before the effective date of the proposed action. A copy of the notice shall be furnished immediately to the director of personnel services. This final notice of decision by the appointing authority or the designee of the appointing authority, to suspend, demote or dismiss the employee shall inform the employee of the employee's right to appeal the decision to the state civil service board within 30 calendar days after the effective date of the action.

(e) At any time prior to the effective date of the proposed suspension, demotion or dismissal or, if an appeal is taken to the state civil service board, at any time prior to the final decision of the board, the appointing authority, or the designee of the appointing authority, may withdraw or modify the action proposed to be taken or taken against the employee. Notice of any such withdrawal or modification shall be given in writing to the employee by certified mail to the employee's last known address or by personal delivery. A copy of the notice shall be furnished immediately to the director of personnel services.

(f) Any permanent employee finally dismissed, demoted or suspended, may request a hearing from the state civil service board to determine the reasonableness of such action. Each such request for a hearing shall be in writing and shall be filed in the office of the director of personnel services within 30 calendar days after the effective date of the dismissal, demotion or suspension. Additional days shall not be added to the thirty-day period in which an appeal may be filed if the notice of the effective date of the dismissal, demotion or suspension is mailed to the employee. The board shall grant the employee a hearing in accordance with the provisions of the Kansas administrative procedure act within 45 calendar days after receipt of such request. At the hearing the burden of proof shall be upon the employee to establish that the appointing authority did not act reasonably in taking such action.

(g) No employee shall be disciplined or discriminated against in any way because of the employee's proper use of the appeal procedure.

(h) A permanent employee who is demoted pursuant to this section need not meet the qualifications for the class of positions to which demoted if the appointing authority determines that the employee can reasonably be expected to perform satisfactorily the duties of the position to which the employee is demoted. A permanent employee who is demoted pursuant to this section shall have permanent status in the class to which demotion is made, effective on the date of the demotion.

(i) In case of a situation in which the possibility of proposing dismissal, suspension or demotion of a permanent employee is indicated, but where the appointing authority needs time to conduct an investigation before proposing such action, or in a situation where immediate removal of an employee from such employee's job is needed to avoid disruption of work, or for the protection of persons or property, or for a similar reason, the appointing authority may relieve the employee of duties or change the duties of the employee for a limited period and keep the employee in pay status. The secretary of administration shall provide by rules and regulations, adopted pursuant to K.S.A. 75-3706, and amendments thereto, procedures to be followed in such cases.

History: L. 1941, ch. 358, § 25; L. 1971, ch. 273, § 3; L. 1972, ch. 332, § 65; L. 1977, ch. 293, § 1; L. 1978, ch. 332, § 17; L. 1981, ch. 334, § 2; L. 1985, ch. 276, § 6; L. 1988, ch. 356, § 301; L. 2000, ch. 152, § 27; July 1.

Cross References to Related Sections:

Appeal to state civil service board of disciplinary action taken against employee for certain communications, see 75-2973.

Law Review and Bar Journal References:

"The Kansas Public Employer-Employee Relations Law," Raymond Goetz, 28 K.L.R. 243, 286 (1980).

"Rethinking Kansas Administrative Procedure," Marilyn V. Ainsworth and Sidney A. Shapiro, 28 K.L.R. 419, 441 (1980).

"Rights of Kansas Non-Union Employees Against Unjust Termination—Where Are We Now?" William C. Nulton, 54 J.K.B.A. 237, 238 (1985).

Attorney General's Opinions:

Commission on civil rights; personnel rules limiting private practice of law. 81-7.

Secretary, state board of agriculture; leave of absence. 90-73.

CASE ANNOTATIONS

1. Aggrieved dismissed employee must exhaust remedies under act before resort to courts. Gray v. Jenkins, 183 Kan. 251, 252, 253, 258, 326 P.2d 319.

2. State civil service board exercises quasi-judicial functions and its orders are appealable to district court. Thompson v. Amis, 208 Kan. 658, 663, 493 P.2d 1259.

3. Section does not conflict with K.A.R. 1-11-2; separate methods for severance of employment; dismissal under regulation upheld; right to appeal on demotion action. Goertzen v. State Department of Social & Rehabilitation Services, 218 Kan. 313, 317, 318, 320, 543 P.2d 996.

4. Dismissal of a permanent classified employee "for the good of the service," construed to require dismissal for legal cause. Swezey v. State Department of Social & Rehabilitation Services, 1 Kan. App. 2d 94, 96, 97, 98, 100, 101, 102, 562 P.2d 117.

5. Provisional employee not entitled to hearing hereunder before dismissal even if retained beyond maximum period authorized under K.S.A. 75-2945 (1). Whitmore v. State, et al., 3 Kan. App. 2d 101, 103, 590 P.2d 106.

6. Act provides complete procedure for administrative review; administrative remedy must be exhausted before resort to courts. Pecenka v. Alquest, 232 Kan. 97, 99, 652 P.2d 679 (1982).

7. Teaching and research personnel in institutions of higher learning in unclassified civil service; not protected hereunder. Kansas Bd. of Regents v. Pittsburg State Univ. Chap. of K-NEA, 233 Kan. 801, 827, 667 P.2d 306 (1983).

8. Cited; exhaustion of administrative remedies following employment termination before pursuing independent civil action (K.S.A. 44-1009). Mattox v. Department of Transportation, 12 Kan. App. 2d 403, 404, 747 P.2d 174 (1987).

9. Cited; absence of employer's duty to third party for tortious acts of off-duty employee examined. Meyers v. Grubaugh, 242 Kan. 716, 717, 750 P.2d 1031 (1988).

10. Legislature cannot constitutionally authorize deprivation of property interest in public employment under civil service act without appropriate procedural safeguards. Darling v. Kansas Water Office, 245 Kan. 45, 48, 774 P.2d 941 (1989).

11. Civil service board ruling as not res judicata against tort action brought under act against discrimination (K.S.A. 44-1001 et seq.) examined. Parker v. Kansas Neurological Institute, 13 Kan. App. 2d 685, 687, 778 P.2d 390 (1989).

12. Time period and amount of award for failing to provide permanent state employee due process hearing on demotion examined. Kansas Dept. of SRS v. Goertzen, 245 Kan. 767, 777, 783 P.2d 1300 (1989).

13. Res judicata precluded assertion of retaliatory discharge claim by former state employee where claim had been subject of full hearing by civil service board and state court appellate process. Morales v. Kansas State University, 727 F. Supp. 1389 (1989).

14. General provisions herein distinguished from K.S.A. 75-2949f constituting per se causes of discipline. Sanstra v. Kansas Highway Patrol, 15 Kan. App. 2d 148, 150, 804 P.2d 1007 (1991).

15. Whether state employee was demoted or reallocated for due process hearing purposes examined. Harton v. Sperry, 19 Kan. App. 2d 259, 262, 869 P.2d 752 (1994).

16. Whether declassified, terminated state employee's reinstatement claim is based on statutory liability or written contract for limitations purposes examined. Wright v. Kansas Water Office, 255 Kan. 990, 992, 997, 881 P.2d 567 (1994).

17. Noted as statutory authority for corrections official to dismiss plaintiff employee in case arising from termination. Brinkman v. State, Dept. of Corrections, 863 F. Supp. 1479, 1483 (1994).

18. Kansas civil service board had sufficient competent evidence to find employee was terminated due to unsatisfactory job performance. Newell v. Kansas Dept. of SRS, 22 Kan. App. 2d 514, 516, 917 P.2d 1357 (1996).

19. Defendant state officer who forwarded termination letter to state personnel director entitled to qualified immunity. Prager v. Lafever, 103 F. Supp.2d 1278, 1284 (2000).

20. Gross misconduct means something more than ordinary misconduct. Jones v. Kansas State University, 32 Kan. App. 2d 313, 81 P.3d 1243 (2004).

21. Term "gross misconduct" contained in act not controlled by definition in K.S.A. 44-706; appointing authority to make determination on case-to-case basis. Jones v. Kansas State University, 279 Kan. 128, 106 P.3d 10 (2005).

22. Under Kansas civil service act, public policy against state employers retaliating against employees for using the appeal procedures to challenge dismissals, demotions and suspensions. Hill v. State, 53 Kan. App. 2d 155, 186, 388 P.3d 122 (2016).

23. An involuntary job relocation can constitute prohibited discrimination if the employer is motivated by retaliation. Hill v. State, 310 Kan. App. 2d 490, 512, 448 P.3d 457 (2019).


 



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