U.S. judge asks for help sorting through statute called ‘not a model of clarity’
by Tim Carpenter, Kansas Reflector
Topeka — Former Kansas Highway Patrol Col. Mark Bruce’s attorney went before the Kansas Supreme Court to argue state law required his client’s return to the rank of major instead of being ousted three years ago amid a domestic-violence scandal involving the agency’s lieutenant colonel.
A lawyer representing Gov. Laura Kelly; Will Lawrence, the governor’s chief of staff; and KHP Col. Herman Jones argued the claims by Bruce in a lawsuit lacked merit because he voluntarily signed resignation and retirement papers after being informed his services were no longer needed in the Kelly administration. In addition, the governor’s attorney said Bruce was misinterpreting state employment law.
A U.S. District Court judge handling the Bruce lawsuit against Kelly, Lawrence and Jones said he was so perplexed by the applicable Kansas law — “not a model of clarity” — that he took the unusual step of requesting the state Supreme Court resolve disputes about interpretation of the state statute. The analysis could include work to understand intent of the Legislature when it tinkered with the Kansas Civil Service Act in 2018.
State Supreme Court Justice Dan Biles said during oral argument Wednesday night in Great Bend that Kansas law on this point was so garbled the state’s highest court would have to enter the “minefield” of legislative intent to figure out what lawmakers attempted to achieve.
He said Topeka attorney Alan Johnson, who represented Bruce, and Topeka attorney David Cooper, who represented the three defendants, were struggling with the poorly articulated statute.
“This is the biggest mess of statutes that I can remember. This just doesn’t make sense,” said Biles, who was appointed to the court in 2009. “Aren’t we just stuck with legislative history?”
In March 2019, Bruce was told by Lawrence that he would need to step down as KHP superintendent. He complied with that directive and retired from the Kansas law enforcement agency after 30 years of service.
The motivation for the move was an allegation Bruce improperly used his authority at KHP to shield the second in command, Lt. Col. Randy Moon, who was investigated for a 2018 assault of a woman at a hotel in Excelsior Springs, Missouri. Moon left the highway patrol along with Bruce.
Bruce’s lawsuit in federal court asserted Kansas law required Bruce to be returned to the rank of KHP major if removed as superintendent of the law enforcement agency. Johnson, his attorney, claimed the Kelly administration caused Bruce’s “constructive discharge from employment” by denying him what amounted to a property interest in that job without due process.
In response, Cooper said the Kelly administration considered the job of KHP colonel, lieutenant colonel and major to be unclassified, or at-will, positions in which employees served at the pleasure of the governor. Unclassified personnel in state government can be dismissed at any time.
Bruce’s theory that he was entitled to employment at the rank of major with permanent status in the classified service “cannot withstand scrutiny,” Cooper said.
If KHP majors were found to be part of the classified employee system, Cooper said, Bruce would be obligated by state law to complete a six-month probationary period after transitioning to the rank of major. During that probation, KHP leadership would have the authority to dismiss Bruce. Johnson said his client shouldn’t have to be part of the probationary system.
Bruce was hired by KHP in 1989 and promoted to major in 2008. Gov. Sam Brownback selected Bruce to be superintendent of the agency in 2015. Three years later, Kelly was elected governor. She retained Bruce as the KHP’s commander.
But in March 2019, Bruce was summoned to Lawrence’s office and told he would be replaced as colonel of KHP. He officially resigned in April and retired in May of that year.
Johnson, Bruce’s attorney, told the Supreme Court that all KHP majors became eligible for higher salaries in 2016 if they surrendered their civil service job protections to become unclassified state workers. He said an individual major accepting that offer of a pay raise in exchange for giving up job protections of classified state workers didn’t mean others serving as a major, such as Bruce, would be considered unclassified employees.
In 2018, Bruce lobbied for the Legislature to pass a bill to prevent dismissal of majors unless a civil service hearing affirmed the decision. The resulting state statute was written in a way that was open to disagreement and a puzzle to federal and state courts.
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