Fort Hays State University v. Fort Hays State University Chapter

195 P.3d 259, 40 Kan. App. 2d 714, 185 L.R.R.M. (BNA) 2437, 2008 Kan. App. LEXIS 169, 2008 WL 4820819
CourtCourt of Appeals of Kansas
DecidedNovember 7, 2008
DocketNo. 99,021
StatusPublished
Cited by2 cases

This text of 195 P.3d 259 (Fort Hays State University v. Fort Hays State University Chapter) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fort Hays State University v. Fort Hays State University Chapter, 195 P.3d 259, 40 Kan. App. 2d 714, 185 L.R.R.M. (BNA) 2437, 2008 Kan. App. LEXIS 169, 2008 WL 4820819 (kanctapp 2008).

Opinion

Greene, J.:

Fort Hays State University (FHSU) appeals the district court’s order upholding an award of the Kansas Public Employee Relations Board (PERB) to FHSU’s former employee, Frank Gaskill, in the amount of $12,772.80 in damages as a result of a prohibited practice complaint made by the Fort Hays State University Chapter of the American Association of University Professors (AAUP). FHSU principally argues that PERB had no authority to award monetary damages to Gaskill under these circumstances. AAUP cross-appeals, arguing that PERB’s reduction in Gaskill’s damages from the $142,013.62 requested was not supported by the evidence or was otherwise arbitrary, capricious, and unreasonable. On our own motion, this court raised a question of [718]*718our own jurisdiction because of a purported untimely filing by AAUP of its motion for reconsideration at the agency, and we requested supplemental briefs on the issue.

We conclude that the doctrine of unique circumstances is applicable, thus vesting jurisdiction in the agency and validating judicial jurisdiction, and we reverse the award of monetary damages to Gaskill as an unauthorized agency action.

Factual and Procedural Overview

This matter is before the court after a long and tortured procedural history through administrative and judicial appeals. The gravamen of this action is that FHSU failed to accord to AAUP its representational status of Gaskill in a grievance process initiated by Gaskill after FHSU decided not to extend a contract to Gaskill for tire 2001-02 academic year.

This appeal was preceded, however, by an informal grievance filed by Gaskill that led to the termination decision being upheld. Rather than exhaust his administrative remedies by perfecting a formal grievance, Gaskill filed an action in district court for breach of contract and wrongful termination of employment.

FHSU moved to dismiss this suit, alleging a failure to exhaust administrative remedies. The district court granted this motion, and this court affirmed the dismissal in Gaskill v. Ft. Hays State Univ., 31 Kan. App. 2d 544, 546, 70 P.3d 693 (2003), reiterating that “the [Kansas Judicial Review Act] KJRA is the exclusive remedy for professors claiming either wrongful termination or breach of contract against state educational institutions.”

Prior to the filing of Gaskilfs civil action in district court, AAUP filed a prohibited practice complaint with PERB, alleging that FHSU had engaged in ongoing violations of the Public Employer-Employee Relations Act (PEERA), K.S.A. 75-4321 et seq., by failing and refusing “to accord to the charging party its representational status with regard to representation of Professor Frank Gaskill,” by failing and refusing “to provide information which the charging party needs in order to properly represent Dr. Gaskill,” and by unilaterally changing “terms and conditions of employment [719]*719as they applied to Dr. Gaskill without meeting its obligation to first bargain in good faith with the charging party.”

After resolution of preliminary motions, an administrative law judge (ALJ) held an evidentiaiy hearing on the merits of AAUP’s complaint. The ALJ ultimately issued a 36-page initial order encompassing findings and conclusions detailing FHSU’s violations of K.S.A. 75-4333(b), awarding Gaskill $142,013.62 in damages, and ordering FHSU to cease and desist from such violations.

FHSU filed a petition for review of the initial order with PERB, which ultimately adopted the findings and conclusions of the ALJ and affirmed the relief granted, except the award of monetary damages to Gaskill. PERB characterized the award of damages to Gas-kill as moot and held that Gaskill’s breach of contract action was not before it. Critical to our jurisdiction, AAUP then filed its motion to reconsider this final order 1 day late but faxed a copy to the agency within the deadline. The motion to reconsider was denied.

AAUP then filed in district court its petition for judicial review of the final order, arguing that PERB’s decision to reverse the monetary damage award was improper for a variety of reasons. The district court remanded the matter to PERB for further proceedings as to remedy, concluding that PERB’s decision reversing the monetary award was devoid of facts supported by the record and unsupported by policy. On remand PERB awarded damages to Gaskill but reduced his requested award of $142,013.62 to $12,772.80.

FHSU then filed its second petition for judicial review, contending the damage award was erroneous, and AAUP filed its own petition for judicial review, contending the monetary award should be modified to “reinstate” the entire $142,013.62. On this second judicial review, the district court essentially affirmed PERB’s final order awarding Gaskill $12,772.80. Both parties then filed respective notices of appeal.

After the appeals were docketed in this court, we issued a show cause order directing the parties to show cause why the appeal should not be dismissed for lack of appellate jurisdiction due to an apparent belated filing by AAUP of its motion to reconsider [720]*720PERB’s final order. The parties’ responses led this court to order supplemental briefing on the issue of jurisdiction.

Does this Court Have Jurisdiction to Consider this Appeal, Given Belated Filing of a Jurisdictional Motion to Reconsider with the Agency?

We must initially address the jurisdiction issue framed by AAUP’s apparent belated filing of a motion to reconsider at PERB. FHSU argues that the timely fax-filed motion to reconsider was not authorized by the agency’s regulations, and the only such motion that was properly filed by AAUP was filed 1 day beyond the statutory 15-day deadline, thus depriving the agency of its jurisdiction to act on the motion and requiring any petition for judicial review of the final order to be filed within 30 days after service of that order. Because the petition for judicial review was not filed for 5 months following the final order, FHSU argues that all agency and judicial actions following the untimely motion for reconsideration should be deemed null and void. Obviously, our jurisdiction to address the merits of this appeal depends on the propriety of the fax-fifing of AAUP’s motion for reconsideration.

Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 774, 148 P.3d 538 (2006). An appellate court has a duty to question jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, it is the duty of the appellate court to dismiss the appeal. State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007).

Here, PERB served its first final order (affirming the presiding officer’s initial order except for reversing the monetary damages awarded to Gaskill) by mail on August 18, 2004. Adding 3 extra days because the order was served by mail (see K.S.A.

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Related

Fort Hays State University v. Fort Hays State University Chapter
228 P.3d 403 (Supreme Court of Kansas, 2010)
Fhsu v. Aaup
228 P.3d 403 (Supreme Court of Kansas, 2010)

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195 P.3d 259, 40 Kan. App. 2d 714, 185 L.R.R.M. (BNA) 2437, 2008 Kan. App. LEXIS 169, 2008 WL 4820819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fort-hays-state-university-v-fort-hays-state-university-chapter-kanctapp-2008.