Opinion
No. 106,418.
2012-07-27
George T. SAYERS, Appellant v. CITY OF POMONA, Appellee.
Appeal from Franklin District Court; Eric W. Godderz, Judge. Dan E. Turner and Phillip L. Turner, of Topeka, for appellant. J. Steven Pigg and Teresa L. Watson, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, for appellee.
Appeal from Franklin District Court; Eric W. Godderz, Judge.
Dan E. Turner and Phillip L. Turner, of Topeka, for appellant. J. Steven Pigg and Teresa L. Watson, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, for appellee.
Before ARNOLD–BURGER, P.J., McANANY, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
George Sayers sued the City of Pomona (the City) for defamation and tortious interference with prospective employment based on comments that city council members made about him during a city council meeting when they refused to approve the mayor's appointment of Sayers as the City's zoning administrator. The district court granted the City summary judgment on two grounds. First, it held that the City was absolutely immune from liability under the Kansas Tort Claims Act (KTCA), K.S.A. 75–6101 et seq. , because the city council was performing a legislative function when the comments were made. Second, the district court found Sayers failed to come forward with any evidence to support the damages element of his claims. Finding merit in the first ground, we need not address the second and affirm the summary judgment for the City.
Factual and Procedural History
The City employed George Sayers as its zoning administrator beginning in 2001. During his tenure, he owned several rental properties in Pomona and leased one of his properties to T–Mobile for placement of a cell tower.
In 2006, Sayers moved a house trailer onto another lot he owned and did work on it to get it ready to rent. It was reported to the Franklin County Sheriff's Department that the water had been turned on to the trailer without the City's permission and that people were living in the trailer using the water without the City's knowledge. As a result, then-mayor Kirk Lauritsen advised Sayers that there was a report that he was stealing utilities. While Sayers denied that he stole anything, Lauritsen advised him that it was a serious matter and terminated Sayers as the City's zoning administrator. Sayers, however, stayed on in his parallel capacity as the City's meter reader until he resigned in 2008.
In 2009, new Pomona mayor Joann Hancock approached Sayers about accepting the position of zoning administrator. Sayers gave permission for Hancock to recommend him for the position. At various points during the July 7, 2009, city council meeting, the following conversations relevant to this appeal took place, which were recorded and later transcribed:
• “[Mayor Hancock]: Okay back on appointment of zoning administrator. May I make a recommendation for the appointment of George Sayers for zoning and code administrator?
“[Councilmember Whitaker]: We had him once before and he was caught doing some things he should not have been doing and that's why we agreed to remove him.
“[Mayor Hancock]: Is there some documentation on that?
“[Councilmember Whitaker]; Uh yes, I'm sure there is. I will call the clerk and find out. The clerk ... (inaudible) ... and I don't feel that he is qualified enough.”
• “[Councilmember Pritchard]: Didn't we fire George Sayers?
“[Councilmember Whitaker]: Yes, we did.
“[Councilmember Larsen]: Yeah, we're not going to appoint George Sayers. “[Councilmember Pritchard]: Why would we have him back?”
• “[Mayor Hancock]: Is there any documentation stating [that he was fired]?
“[Councilmember Larsen]: ... The council doesn't approve of George Sayers whether he was fired or not.
“[Councilmember Pritchard]: We don't—we don't want him. I don't believe we want him.
“[Councilmember Larsen]: We don't approve of him so it doesn't make any difference.”
• “[Councilmember Pritchard]: I just know that I think—I know that things are better in this City since Doug Combs has been—the job he's had—the zoning administrator—than it was when George Sayers was zoning administrator or whatever he was and was probably stealing electricity for his own use....
“[Councilmember Larsen]: Well and didn't we get a cell phone tower inside the city limits?
“[Councilmember Whitaker]: And he got a cell phone tower on his own land.”
Based on the city council members' comments, Sayers sued the City for defamation and tortious interference with prospective employment, seeking damages in excess of $2 million. The City denied many of Sayers' averments in his petition. It admitted, however, that a recording of the city council meeting revealed that while touting the incumbent, a council member did state that Sayers, “ ‘was probably stealing electricity.’ “ The City also advanced numerous defenses, including, but not limited to: exemptions from liability under the Kansas Tort Claims Act (KTCA) for legislative and discretionary functions; absolute or qualified privilege under the common law; and the statements were either the truth or nonactionable opinions.
After discovery was complete, the City moved for summary judgment on several alternative grounds. Following a response from Sayers, a reply by the City, and arguments from counsel at a pretrial hearing (the transcript of which is not in the record), the district court granted the City's motion on alternative grounds. First, the district court held that “the legislative immunity of K.S.A. [2011 Supp.] 75–6104(a) applies to exempt [the City] from liability for [Sayers'] claims.” Second, the district court held that Sayers had “not provided evidence of any pecuniary loss, only speculation,” and the comments did not cause him to lose the zoning administrator position. Sayers timely appeals.
Liability Under The KTCA
Sayers argues the district court erroneously concluded that K.S.A.2011 Supp. 75–6104(a) exempts the City from liability.
Where a summary judgment decision is at least partly grounded on questions of law—such as the applicability of exceptions to liability under KTCA as in this case—we have unlimited review. See Thomas v. Board of Shawnee County Comm'rs, 293 Kan. 208, 221, 262 P.3d 336 (2011) (citing Soto v. City of Bonner Springs, 291 Kan. 73, 78, 238 P.3d 278 [2010], which considered the applicability of KTCA immunity). To the extent that statutory interpretation may come into play, review is likewise unlimited. See Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009). Immunity from liability under the KTCA for legislative functions
There is no dispute that Sayers' tort claims are governed by the KTCA, K.S.A. 75–6101 et seq. This is because the City of Pomona is a city of the third class and therefore a “governmental entity” as defined in the KTCA. See K.S.A.2011 Supp. 75–6102(b) and (c); K.S.A. 15–101. And members of the city council are considered employees of the governmental entity. K.S.A.2011 Supp. 75–6102(d).
Governmental entities are generally liable for damages caused by the wrongful acts of their employees while acting within the scope of their employment. K.S.A.2011 Supp. 75–6103(a). Because liability is the general rule for KTCA claims, the City bears the burden of establishing that its conduct fits within one of the exceptions to liability found in K.S.A.2011 Supp. 75–6104. See Jackson v. U.S.D. 259., 268 Kan. 319, 322, 955 P.2d 844 (2000).
The district court held the City was entitled to summary judgment under the statutory “legislative function” exception to liability found in K.S.A.2011 Supp. 75–6104(a). That statute provides:
“A governmental entity or an employee acting within the scope of the employee's employment shall not be liable for damages resulting from:
(a) Legislative functions, including, but not limited to, the adoption or failure to adopt any statute, regulation, ordinance or resolution.” K.S.A.2011 Supp. 75–6104.
The key here is whether the city council was performing a “legislative function” as contemplated under this section. This is an issue of first impression in Kansas.
According to Sayers, this exception is inapplicable because the city council's statements about him were not made in the process of, nor had anything to do with the adoption or failure to adopt any statute, regulation, ordinance, or resolution. In support, Sayers cites to State ex rel. Stephan v. Finney, 251 Kan. 559, 836 P.2d 1169 (1992), and State ex rel. Morrison v. Sebelius, 285 Kan. 875, 898, 179 P.3d 366 (2008), which cases generally define legislative power as the power to make, amend, and repeal laws in discussing the doctrine of separation of powers. As the City correctly points out, however, Sayers' argument ignores the “but not limited to” statutory language preceding the list of these same legislative functions set forth in K.S.A.2011 Supp. 75–6104(a). That language makes it clear that that our legislature meant for the statutory list of legislative functions subject to exemption from liability under the KTCA to be nonexclusive.
In Bogan v. Scott–Harris, 523 U.S. 44, 54, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998), the Supreme Court noted that “[w]hether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it.” Here, the nature of the act at issue when the statements underlying Sayers' tort claims against the City were made involves the appointment (or not) of Sayers to the position of zoning administrator.
Generally speaking, “[t]he power of appointment does not exclusively vest in the legislative, executive, or judicial branch. Since the constitution does not assign this power to any particular branch, it falls under the realm of the legislature.” State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, 338, 955 P.2d 1136 (1998). Although the people commonly exercise the power of appointing or electing a person to office:
“ ‘ “the legislature may, as the law-making power, when not restrained by the constitution, provide for its exercise by either department of the government, or by any person or association of persons whom it may choose to designate for that purpose. It is an executive function when the law has committed it to the executive, a legislative function when the law has committed it to the legislature, and a judicial function, or at least a function of a judge, when the law has committed it to any member or members of the judiciary.” [Citation omitted.]’ “ 264 Kan. at 339 (quoting Sartin v. Snell, 87 Kan. 485, 494–95, 125 Pac. 47 [1912] ).
Thus, to determine the nature of the function the city council was performing, we must consider the authority under which Sayers' appointment came before the city council in the first place. Sayers does not dispute that the position of zoning administrator was subject to appointment by the mayor with approval by the city council. This is further supported by the fact that subsequent to Hancock's appointment of Sayers, the city council adopted a resolution pursuant to K.S.A.2011 Supp. 12–16,128, in which the council set forth its specific findings that Sayers was unqualified or not fit to hold office. That statute provides:
“[A]ny appointment to any board, commission, advisory group or other body made by the mayor of any city which is subject to approval of the governing body of the city must be acted upon by the governing body within 45 days of the appointment by the mayor or the appointment shall be deemed approved. The governing body of the city shall approve such appointment unless the governing body makes a specific finding by the passage of a resolution that the person is either unqualified to hold the office or is not fit to hold the office or position.” K.S.A.2011 Supp. 12–16,128.
So the appointment of the City's zoning administrator was both an executive (mayor) and a legislative (city council) function. Accord Leek v. Theis, 217 Kan. 784, 808, 539 P.2d 304 (1975) (appointment to office is executive function; confirmation of appointment is legislative function); Edgington v. City of Overland Park, 15 Kan.App.2d 721, 733, 815 P.2d 1116 (1991) (same). Accordingly, we find that the city council members were performing a legislative function when they were discussing whether to confirm the appointment of Sayers by the mayor and made the statements underlying Sayers' tort claims. This means the City was immune from liability for Sayers' claims under K.S.A.2011 Supp. 75–6104(a), so summary judgment on that basis alone is proper. Accordingly, we find it unnecessary to specifically address the remaining basis relied upon by the district court in granting the City summary judgment and the alternative bases propounded by the City.
Affirmed.