                                       MODIFIED

                                       No. 111,327

            IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                      TONY MARQUEZ,
                                        Appellant,

                                            v.

                        KANSAS DEPARTMENT OF CORRECTIONS,
                                    Appellee.


                             SYLLABUS BY THE COURT


1.
       How permanent State employees may be dismissed, demoted, or suspended for
work deficiencies due to incompetence or negligence is set out in the Kansas Civil
Service Act, K.S.A. 75-2925 et seq.

2.
       K.S.A. 75-2949e(b) permits an appointing authority to dismiss, demote, or
suspend a permanent state employee for deficient work performance after the employee
has received two performance evaluations in the 180 days preceding the proposed
discipline and the evaluations were spaced at least 30 days apart.


3.
       If the appointing authority wants to dismiss, demote, or suspend a permanent state
employee for deficient work performance without two evaluations, K.S.A. 75-2949e(c)
provides that in the event of an appeal to the Civil Service Board by the employee, the
Board must require the appointing authority to show that the employee was adequately



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counseled on the nature of any work deficiencies and what was expected of the employee
in correcting the deficiencies.


        Appeal from Shawnee District Court; REBECCA W. CROTTY, judge. Original opinion filed August
29, 2014; modified opinion filed October 3, 2014. Reversed.


        Morgan L. Roach and Nicholas S. Ruble, of McCauley & Roach, LLC, of Kansas City, Missouri,
for appellant.


        Linden G. Appel, chief legal counsel, of Kansas Department of Corrections, for appellee.


Before ATCHESON, P.J., HILL and ARNOLD-BURGER, JJ.


        HILL, J.: Parole officer Tony Marquez appeals his 10-day suspension from his job
with the Kansas Department of Corrections. As a classified state employee, Marquez is
subject to the rules of the Kansas Civil Service Act, K.S.A. 75-2925 et seq. If classified
employees appeal their suspensions to the Civil Service Board, the Act requires the
appointing authority to show that these employees were adequately counseled on the
nature of their work deficiencies unless they had received two prior work evaluations at
least a month apart before any suspension. Marquez had not received two unsatisfactory
evaluations, and he appealed his suspension to the Civil Service Board. Because the
Board failed to require the appointing authority to show that Marquez had been
adequately counseled on his work deficiencies before imposing a 10-day suspension, we
must reverse his suspension. Accordingly, we reverse the district court's order approving
Marquez' suspension.


Marquez learns of his job suspension.


        Marquez has worked as a parole officer with the Kansas Department of
Corrections for 21 years. He is a permanent employee in the classified service as set out

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in the Kansas Civil Service Act. In 2010, inmate Wyatt Parnell was released on parole
and Marquez was assigned as his parole officer. Parnell was considered a moderate risk
offender and was required to meet with Marquez at least once a month. In addition to the
usual parole conditions there were three special conditions placed on Parnell. These
special conditions were:


       (1)    "participation in an assessment for appropriate counseling with emphasis on
              batterer's intervention";
       (2)    "no-cohabitation in a household where children less than 15 years old
              reside";
       (3)    "be assessed by a qualified mental health professional or prescribing
              physician."


       Accompanied by his mother, Parnell reported to Marquez. Parnell's mother stated
Parnell would be residing with her and his brother; no children were living at the home.
Marquez reviewed the special parole conditions with Parnell at this meeting. Later,
Parnell brought his children twice to his meetings with Marquez. Marquez did not
indicate in his notes whether he had asked if Parnell was living with either child.


       Later, Shawna Mobley, the Batterer's Intervention Program Director, assessed
Parnell. As a result, Parnell was scheduled to attend batterer's classes beginning in
February 2011. In May 2011, Marquez was aware that Parnell had been absent from
those classes. Marquez asked Mobley about these absences and he told her that he would
contact Parnell about them. On June 23, 2011, Marquez and his supervisor, Dale Johnson,
performed a residence check on Parnell, but he was not home. When Marquez and
Johnson spoke with Parnell's mother, she said Parnell had missed the classes because he
did not have money for transportation. Marquez later testified that Parnell would not have
had his parole revoked based solely on Parnell's failure to attend those classes.


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       Then, in June 2011, Marquez was told of Parnell's arrest and that Parnell was
under investigation for child abuse. Marquez met with Parnell for a jail interview where
Marquez performed a drug test on Parnell. When Parnell tested positive for THC and he
admitted using marijuana, Marquez submitted an offender revocation staffing form
seeking approval to revoke Parnell's parole. Parnell's parole revocation was approved.


       After that, Parole Officer Lori Ryan began supervision of Parnell. Eventually,
Parnell was accused of multiple crimes, including beating his pregnant girlfriend, raping
her, and branding her with a fork. This incident was reported in the media. Sally Frey,
Director of the Southern Parole Region and Marquez' appointing authority, stated that
when incidents such as Parnell's occur, it is routine to review the case.


       Marquez' case file on Parnell was reviewed. The review included Marquez'
handling of Parnell's parole. In November 2011, with his union representative present,
Marquez met with Frey, Risk Reduction and Reentry Manager Aimee Huffman, and
Marquez' two supervisors.


       Eventually, Marquez received a letter from Frey advising him of a proposed 30-
day suspension. Marquez met with Frey and the human resources director regarding the
proposed suspension. Frey sent a letter to Marquez explaining his reduced suspension of
10 days was for "the good of the service."


       Marquez appealed the suspension to the Kansas Civil Service Board. The Board
concluded that Marquez' handling of the supervision of Parnell "exhibited an
incompetency and/or negligence in the performance of his duties." The Board upheld the
suspension. Marquez filed a petition for reconsideration; the Board rejected his petition
and affirmed its prior order. Marquez sought judicial review of the agency action with the
district court. The district court denied his petition.


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The Board did not ask about counseling.


       Marquez contends the Board ignored the statutory requirement that he must be
adequately counseled on his work deficiencies before his suspension. In his view, K.S.A.
75-2949e directs the Board to require the Department's appointing authority, Frey, to
show Marquez received adequate counseling. Marquez argues he did not receive any
counseling and therefore the Board did not make the requisite findings sufficient to
affirm his suspension.


       This issue requires us to interpret provisions of the Kansas Civil Service Act.
Interpretation of a statute is a question of law over which appellate courts have unlimited
review. Milano's, Inc. v. Kansas Dept. of Labor, 296 Kan. 497, 500, 293 P.3d 707 (2013).


       Statutory authority for the discipline of permanent employees begins with K.S.A.
2013 Supp. 75-2949(a). The statute speaks first to the dismissal or demotion of
employees for the good of the service. "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." K.S.A. 2013 Supp. 75-2949(a). We
take that to mean that the "good of the service" finding pertains only to instances of
employee dismissal or demotion. The law then proceeds to mention suspension of
employees in the next sentence. "For disciplinary purposes, an appointing authority may
suspend without pay a permanent classified employee for a period not to exceed 30
calendar days." K.S.A. 2013 Supp. 75-2949(a). There is no mention of suspensions "for
the good of the service."


       From these general concepts, the statutes progress to specifics. Permanent
employees may be dismissed, demoted, or suspended for deficiencies in work
performance because they are incompetent or negligent in the performance of their


                                             5
duties. See K.S.A. 75-2949e(a)(1) and (2). The Board concluded in this case that
Marquez was incompetent and/or negligent.


       The procedure for suspending an employee is found in K.S.A. 75-2949e(b) and
(c):


                "(b) Unless the appointing authority determines that the good of the service will
       best be served by proceeding directly to the procedure prescribed in K.S.A. 75-2949 and
       amendments thereto, the appointing authority may propose dismissal, demotion or
       suspension of a permanent employee for deficiencies in work performance only after the
       employee has received two performance evaluations in the 180 calendar days
       immediately preceding the effective date of the proposed dismissal, demotion or
       suspension. These performance evaluations shall be spaced at least 30 calendar days
       apart.


                "(c) If the appointing authority proposes to dismiss, demote or suspend a
       permanent employee for deficiencies in work performance without the two evaluations
       described by subsection (b) and if the employee appeals the action to the state civil
       service board, the board shall require the appointing authority to show that the employee
       was adequately counseled concerning the nature of the deficiencies in work performance
       and concerning what was expected of the employee in correcting the deficiencies."
       (Emphasis added.)


The appointing authority here sought to suspend Marquez without the two work
performance evaluations mentioned in the statute. By doing so, the law required the
Board to have the appointing authority show that Marquez had been adequately
counseled on how his performance was deficient and what was expected of him in
improving his performance.




                                                   6
       The Department argues, and the district court agreed, that if there is a "good of the
service" finding, then the appointing authority is not required to show there was adequate
counseling. We find that position to be erroneous.


       The statute is plain and unambiguous. If the appointing authority wishes to
suspend an employee, the authority can suspend either by using evaluations or through
job performance counseling and then suspension. K.S.A. 75-2949e(c) tells the Board to
require the appointing authority to show that the employee was adequately counseled on
the nature of the work deficiencies and how to correct them if there are no evaluations.


       The appointing authority must advise an employee of his or her shortcomings
before imposing any suspension. The presence of two evaluations within 6 months before
imposing discipline implies the appointing authority has counseled the employee about
his or her work deficiencies


       Clearly, subsection (c) places the burden on the appointing authority to show the
employee was adequately counseled prior to any suspension. Under this subsection, if
there is a proposed suspension for deficiencies in work performance but two evaluations
did not occur and the employee appeals the suspension, then the Board "shall require the
appointing authority to show that the employee was adequately counseled concerning the
nature of the deficiencies in work performance." K.S.A. 75-2949e(c); see Newell v.
Kansas Dept. of SRS, 22 Kan. App. 2d 514, 517, 917 P.2d 1357, rev. denied 260 Kan.
994 (1996).


       The record in this appeal is clear. The appointing authority wished to impose a 10-
day suspension on Marquez without using performance evaluations. Marquez appealed
this decision to the Board. As outlined in K.S.A. 75-2949e(c), the Board should have
required the appointing authority, Frey, to show that Marquez was "adequately
counseled" prior to his suspension. In its final order, the Board made no findings

                                             7
regarding the appointing authority's counseling requirement. Thus, we hold this Board
action did not comply with the law.


        Additionally, the district court misinterpreted the statute. It held: "Frey made a
finding of 'good of the service' and therefore, was not required to provide a showing of
adequate counsel on the work performance deficiencies." With such an interpretation, the
court clearly ignored the language of K.S.A. 75-2949e(c): "If the appointing authority
proposes to . . . suspend . . . for deficiencies in work performance without the two
evaluations . . . , the board shall require the appointing authority to show that the
employee was adequately counseled . . . ." (Emphasis added.) The district court's
misinterpretation effectively nullifies subsection (c).


        Oddly, even after it determined counseling was not a requirement, the district
court went on to decide Marquez had received adequate counseling. The district court did
so by shifting the burden from the appointing authority to Marquez. The court held:
"None of these testimonies conclude that Marquez did not receive counseling on the
issue. Therefore, the Court finds that Marquez was adequately counseled prior to his
suspension." We take this statement to mean that because no one said Marquez did not
receive counseling, therefore he did receive counseling. We question the soundness of
that conclusion, especially since the Board never addressed the issue with the appointing
authority.


        Another panel of this court has addressed a similar issue. In Del Gaudio v. Kansas
Dept. of Corrections, No. 99,754, 2009 WL 3378204 (Kan. App. 2009) (unpublished
opinion), rev. denied 290 Kan. 1092 (2010), the court addressed both the issue of
counseling and the issue of burden shifting. In a case dealing with the dismissal of an
employee and a record of adequate job performance counseling, the Del Gaudio court
held:


                                              8
               "K.S.A. 75-2949e(b) also provides, however, that if the appointing authority
       'determines that the good of the service will best be served by proceeding directly' to
       dismissal without the two performance evaluations, then under K.S.A. 75-2949e(c), 'the
       [B]oard shall require the appointing authority to show that the employee was adequately
       counseled concerning the nature of the deficiencies in work performance and concerning
       what was expected of the employee in correcting the deficiencies.' In this situation, the
       appointing authority bears 'the burden of persuasion during the appeal process' to
       'establish that the employee has been independently advised as to his or her deficiencies
       in performance and has been counseled on how to improve.' [Citation omitted.]" 2009
       WL 3378204, at *12.


       The burden is on the appointing authority to show Marquez received adequate
counseling prior to his suspension. The district court here erroneously shifted the burden
onto Marquez by finding he failed to show that he was not adequately counseled and then
concluding he received adequate counseling.


       Finally, there was a mention in the appointing authority's suspension letter that a
possible ground for suspension was "personal conduct detrimental to the state service,"
mentioned in K.S.A. 75-2949f. That statute deals only with personal conduct of a state
employee amounting to gross misconduct or conduct grossly unbecoming a state
employee. Such conduct includes conviction of a crime, immoral conduct, willful abuse
or misappropriation of state funds, and other gross acts. These serious actions can be
grounds for dismissal, demotion, or suspension. Since the Board made no findings of
gross negligence or gross misconduct by Marquez here, we hold that statute is immaterial
to this appeal.


       Because the Board failed to follow the required statutory procedure, we reverse
Marquez' suspension and reverse the district court's order affirming the suspension.


       Reversed.

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