Opinion
No. 108,142.
2012-11-21
Ned STICHMAN, Superintendent of Parks & Zoo, City of Independence, Kansas, Appellant, v. The CITY OF INDEPENDENCE, KS. and Mickey Webb, City Manager, Appellees.
Appeal from Montgomery District Court; Frederick William Cullins, Judge. W.J. Fitzpatrick, of Fitzpatrick & Bass, of Independence, for appellant. David R. Cooper and Teresa L. Watson, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, for appellees.
Appeal from Montgomery District Court; Frederick William Cullins, Judge.
W.J. Fitzpatrick, of Fitzpatrick & Bass, of Independence, for appellant. David R. Cooper and Teresa L. Watson, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, for appellees.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Ned Stichman appeals the district court's denial of his petition for declaratory judgment in favor of the City of Independence (City). Mickey Webb, Independence City Manager, relieved Stichman of his managerial duties as park and zoo supervisor and transferred those duties to the assistant park and zoo supervisor. Stichman argues Webb's directive violated the organizational structure of the Code of the City of Independence, Kansas (City Code) and also the experience and training requirements for the position of park and zoo supervisor.
The facts in this case are for the most part undisputed. Independence is a city of the second class in Kansas and operates under the commission/city manager form of government. Stichman has been the park supervisor for the City since 1983. Webb was appointed city manager in July 2010. In September 2010, Stichman's title changed from park supervisor to park and zoo supervisor.
In October 2010, Webb hired Barbara Beurskens, formerly the deputy city clerk, to be the assistant park and zoo supervisor. On February 17, 2012, Webb issued the following directive:
“Effective immediately Barb Beurskens will [be] in charge of all management, operations, personnel, hiring and purchases for the park & zoo.
“All decisions about operations and changes in work assignments will be directed to Barb Beurskens and she must make final approvals .”
In an affidavit prepared by Webb, he explained Beurskens' qualifications to do the job:
“Barb Beurskens is, in my judgment, qualified to be in charge of all management, operations, personnel, hiring and purchases for the City's parks and zoo. She has an animal science degree from Kansas State University with a minor in business. She had been the Assistant Park and Zoo Supervisor from October 2010 until February 17, 2012, and had previously been the Deputy City Clerk.”
On February 24, 2012, Stichman filed a petition for declaratory judgment. Stichman sought an order of the district court finding Webb's directive violated K.S.A. 12–1015 and City Code § 2–241(7), and was also an improper transfer of management duties to the assistant superintendent. The City and Webb filed a motion to dismiss the petition, which the court ultimately treated as a motion for summary judgment.
The district court denied Stichman's petition for declaratory judgment. The court stated that in Webb's judgment Beurskens was qualified to be in charge of the city park and zoo in all areas due to her animal science degree from Kansas State University with a minor in business. Webb also stated that Beurskens had been assistant park and zoo supervisor for well over a year and was previously the deputy city clerk. The court held that when Webb published his directive, he made Beurskens the de facto park and zoo supervisor and she was in charge of the park department. The court held that Webb's action of effectively removing Stichman from his position as park and zoo supervisor was within Webb's capacity as city manager as granted by authority of both city ordinance and state law. Stichman appeals.
Stichman argues the district court erred in granting summary judgment to the City.
Even though the City's motion was filed as a motion to dismiss, there is no dispute that the district court appropriately considered the City's motion as one for summary judgment because the court considered matters outside the pleadings. See K.S.A. 60–212(b)(6), (d). An appellate court's standard of review when a motion to dismiss has been treated as a motion for summary judgment matches that for summary judgment: Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Dodge City Implement, Inc. v. Board of Barber County Comm'rs, 288 Kan. 619, Syl. ¶ 1, 205 P.3d 1265 (2009).
Stichman argues that although Webb has overall supervision of all departments, the City Code mandates that the park department be under the supervision of a superintendant. Stichman argues that Webb assigned the duties of park superintendant to an unqualified assistant and directed Stichman to take orders from her. Stichman contends Webb's actions created an improper organizational structure in defiance of City Code § 2–241(7).
City Code § 2–241(7) provides for the structure of the park department as follows:
“ Park Department. The park department shall be under the supervision of a superintendent and shall consist of the following officers and employees:
a. Superintendent of parks;
b. An assistant superintendent;
c. Such other employees as may now or hereafter be provided for by ordinance, or as may be deemed necessary by the city manager to effectively carry out the work of the department.”
The City also had a written policy for the position of park supervisor. Part of the policy stated that the experience and training for the park supervisor included: “Any combination of experience and training equivalent to graduation from high school, plus five years of park and zoo maintenance and development experience, including two years in a supervisory or lead capacity.” Stichman argues that if Beurskens is not qualified to be the park supervisor, then she is not qualified to exercise the authority of that position.
Stichman also contends that the district court did not give proper consideration of the case on summary judgment because it viewed the record in the light most favorable to the City. He states that summary judgment requires the court to consider the evidence in the light most favorable to him and that the court only considered Webb's affidavit when Stichman too submitted an affidavit, but Stichman's affidavit explained how Beurskens was not qualified to serve as park superintendent.
Stichman argues the district court's finding that Beurskens is the de facto park superintendant avoids the issue. He claims that he neither seeks to solidify his job as superintendent nor remove Beurskens as assistant park supervisor. Rather, he seeks enforcement of the hierarchy of the parks department and the qualifications necessary for being the park and zoo supervisor. He insists that he has devoted 30 years of his life to the Independence park and the park should not be managed by a former deputy city clerk who does not possess the qualifications to serve as park and zoo supervisor.
Nowhere in the record or its brief does the City argue that Beurskens meets the stated experience and training qualifications set forth by the Independence city policies. Instead, the City states there is no dispute about Beurskens' professional background as established by Webb's affidavit. The City argues, “There is no dispute that the City Manager has, in his judgment, concluded that she meets the qualifications set forth in the City Code.”
As city manager, Webb is vested with the power to appoint and remove all heads of departments and all subordinate officers and employees of the city. City Code § 2–174(a)(2); K.S.A. 12–1015, K.S.A.–1024. City Code § 2–171(a)(1) also empowers the city manager as follows: “The city manager shall be responsible for the administration of all of the affairs of the city.” Pursuant to K.S.A. 12–1015 and City Code § 2–241, the parks department is one of the departments within the municipal structure known as the department of service. City Code § 2–241 provides that all departments within the department of service “shall be under the supervision of a director of service who shall be the city manager.” Webb certainly has the power to hire and fire employees of the park department and assign authority as he sees fit. In Piper v. City of Wichita, 174 Kan. 590, 597, 258 P.2d 253 (1953), the court explained a city manager's duties and responsibilities:
“G.S.1949, 12–1014, clearly provides that the city manager shall appoint and remove all heads of departments and all subordinate officers and employees of the city. It makes him responsible for the discipline of all appointive officers. Thus he by the statute is responsible for the administration of all the affairs of the city. This clearly includes personnel matters.”
We agree with the district court that a de facto appointment of Beurskens as head of the park department existed. See Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, Syl. ¶ 5, 539 P.2d 1 (1975). Beurskens was the de facto park and zoo supervisor because she “assumed [her] duties as such under color of authority, performed those duties, and [was] recognized and accepted as ... [park and zoo supervisor] by all who dealt with [her].” 217 Kan. at 558.
The complaint in Stichman's petition is not that Webb's action in relieving him of his management duties was arbitrary or unlawful; he contends Webb gave Beurskens de facto authority as the park and zoo supervisor when she was unqualified for the position.
It is Webb's decision who will be in charge of the parks department. Webb stated that he believed that Beurskens was qualified to take charge of all management, operations, personnel, hiring, and purchases for the City's parks and zoo. There is support for this decision in the record. Webb must certainly answer to the city commission for all his decisions. The facts as generally admitted do not sustain Stichman's petition in light of the broad power conferred upon the city manager.
Affirmed.