IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 94,707
SHARI PERRY,
Appellant,
v.
BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF
FRANKLIN,
ROY DUNN, IN HIS INDIVIDUAL and OFFICIAL CAPACITIES,
DONALD HAY, IN HIS INDIVIDUAL and OFFICIAL CAPACITIES,
JOHN TAYLOR, IN HIS INDIVIDUAL and OFFICIAL CAPACITIES,
DONALD STOTTLEMIRE, IN HIS INDIVIDUAL and OFFICIAL
CAPACITIES, and
DONALD WAYMIRE, IN HIS INDIVIDUAL and OFFICIAL CAPACITIES,
Appellees.
SYLLABUS BY THE COURT
1. Under K.S.A. 60-212(b)(6), if matters outside the pleading are presented to and not
excluded by the court, the motion shall be treated as one for summary judgment and
disposed of as provided in K.S.A. 60-256.
2. 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. The trial court is required to resolve all facts and inferences which may
reasonably be drawn from the evidence in favor of the party against whom the ruling is
sought. When opposing a motion for summary judgment, an adverse party must come
forward with evidence to establish a dispute as to a material fact. In order to preclude
summary judgment, the facts subject to the dispute must be material to the conclusive
issues in the case. On appeal, the appellate court applies the same rules and where
reasonable minds could differ as to the conclusions drawn from the evidence, summary
judgment must be denied.
3. Home rule powers are those granted by the constitution or by legislative act to units of
local government to transact local business and perform such local and administrative
duties as these local units may deem appropriate, subject to certain limitations imposed
upon such grant of power. In 1974, the Kansas Legislature passed an act granting powers
of home rule to counties. Counties in Kansas are now empowered to transact all county
business and perform such powers of local legislation and administration as may be
appropriate, subject, however, to the restrictions and prohibitions set forth in K.S.A. 19-101a.
4. The board of county commissioners' home rule powers shall be liberally construed for the
purpose of giving to counties to largest measure of self-government. K.S.A. 19-101c.
5. The fundamental rule to which all other rules are subordinate is that the intent of the
legislature governs if that intent can be ascertained, and when a statute is plain and
unambiguous, the court must give effect to the intention of the legislature as expressed
rather than determine what the law should or should not be.
6. The legislature is presumed to have expressed its intent through the language of the
statutory scheme it enacted.
7. When a statute is clear and unambiguous, the court must give effect to the statute as
written, and there is no need to resort to statutory construction.
8. It has long been the rule in Kansas that in determining whether a statute is open to
construction, or in construing a statute, ordinary words are to be given their ordinary
meaning and courts are not justified in disregarding the unambiguous language. Even a
penal statute subject to strict construction should not be read so as to add that which is not
readily found therein, or to read out what, as a matter of ordinary language, is in it.
9. The construction placed upon a statute by the opinion of an attorney general is neither
conclusive nor binding on the court, and in circumstances where such an opinion is
without authoritative legal support, it should not be approved or followed.
10. When a statute is determined to be ambiguous, an appellate court looks beyond
consideration of the actual statutory language used to the historical background of the
enactment, the circumstances attending its passage, the purpose to be accomplished, and
the effect the statute may have under the various constructions suggested.
11. Counties are prohibited from passing any legislation which is contrary to or in
conflict
with any act of the state legislature which is uniformly applicable to all counties
throughout the state.
12. Based on the plain and unambiguous language of applicable Kansas statutes, the
preparation of payroll is not a statutorily mandated duty of the county clerk.
13. K.S.A. 12-3903(c) specifically applies only to statutorily mandated duties.
14. K.S.A. 12-3903(a) is inapplicable to the transfer of one of the county clerk's duties
to a
county department.
Appeal from Franklin district court; JAMES J. SMITH, judge. Opinion filed May 5,
2006. Affirmed.
Penny R. Moylan, of Bennett & Hendrix, L.L.P., of Topeka, argued the
cause, and Mark L. Bennett, Jr., of
the same firm, was with her on the brief for appellant.
Carl A. Gallagher, of McAnany, Van Cleave & Phillips, P.A., of Kansas
City, argued the cause, and Brian
J. Zickefoose, of the same firm, and Blaine Finch, county counselor, were
with him on the briefs for appellees.
Judith A. Moler, general counsel, was on the brief for amicus curiae
Kansas Association of Counties.
Teresa L. Sittenauer, of Fisher, Patterson, Sayler & Smith, L.L.P., was
on the brief for amicus curiae
Kansas County Officials Association.
The opinion of the court was delivered by
NUSS, J.: This case concerns the relationship between an elected county official and her
county. After the Franklin County Board of County Commissioners passed a resolution assigning
the preparation of county employees' payroll to the newly created Human Resources Department,
Shari Perry, the county clerk, sought declaratory and injunctive relief. She claimed the resolution
was contrary to state law, void, and unenforceable because payroll preparation was her statutory
duty. Perry appeals the district court's granting of summary judgment to the county.
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the district court err in addressing the merits of the action? No.
2. Did the district court err in holding that the preparation of payroll is not a
statutorily mandated duty of the county clerk? No.
3. Did the district court err in holding that K.S.A. 12-3903 does not apply to the
present case? No.
Accordingly, we affirm.
FACTS
In December 1996, the Franklin County Board of County Commissioners (Board) enacted
a resolution that created a Department of Personnel and Purchasing. Among other things, the
department was responsible for preparing and performing all related payroll functions for the
county. In July 1999, the Board enacted a resolution that terminated the Department of Personnel
and Purchasing and consolidated its duties, including payroll, with the county clerk. In July 2004,
the Board adopted Resolution 04-63, creating the Franklin County Human Resources Department
(HRD) and providing that "preparation of the County's payroll shall be carried out by the County
Clerk's Office." The HRD was charged with handling most county employee personnel matters.
On March 2, 2005, however, the Board adopted Resolution 05-21, amending Resolution
04-63. Among other things, the new resolution provided that the HRD, and not the county clerk,
would now prepare the county employee payroll. The resolution states in relevant part:
"2. In addition to the duties conferred upon the Human Resources Department in
Resolution
04-63, subsection (4), the Human Resources Department shall also undertake the
responsibility of preparing the payroll of county employees. This duty shall include but
not be limited to: the collection of time worked by employees, the preparation of all
payroll checks or deposits, except that all signatures required by statute to be placed
upon the checks shall still be required by the proper party, the preparation of all
necessary payroll reports for outside agencies, the preparation of all necessary W-2
forms, the management of all taxable reimbursements, the contract for all outside
agencies regarding, KPERS, Department of Labor, pensions, employee benefits, and
shall have the responsibility for ensuring county compliance with all applicable state and
federal regulations.
"3. It shall be the duty of the Human Resources Department to prepare a statement
each time
a payroll is complete detailing the amounts to be paid in compensation by each
department and the line items from which the funds are to be taken. This information is
to be presented to the County Clerk for the purpose of allowing the clerk to perform any
necessary function expressly stated in K.S.A. § 19-301 et seq." (Emphasis added.)
That same month, Perry, who had been county clerk since 1997, filed a Petition for
Restraining Order and Injunction and Declaratory Judgment in the district court of Franklin
County. The petition alleged that Resolution 05-21 would: (1) eliminate the county clerk's
statutorily mandated duty of performing payroll function without the consent of the county clerk
or presenting the same for election; (2) consolidate a function of the county clerk's office without
a sufficient factual basis; and (3) usurp the county clerk's authority and duty over her office's
personnel matters. Accordingly, Perry sought to prevent the Board from "(1) enforcing Franklin
County Resolution No. 05-21; (2) prosecuting plaintiff for any alleged violations of Resolution
No. 05-21; and (3) engaging in any action or conduct that interferes with plaintiff's duties or
operations that is related in any way to Resolution 05-21."
Ten days later the Board filed a motion to dismiss, arguing that Perry's petition failed to
state a claim upon which relief could be granted. The motion alleged that preparation of payroll
is not a statutorily mandated duty of the county clerk and asserted that Resolution 05-21 contains
an express provision to protect the county clerk's statutory duties. The Board attached several
exhibits to its motion including the resolution, an affidavit from Becky Ortega (the Human
Resources Director), e-mails between Ortega and Perry, and payroll forms.
In Perry's response, she admitted the phrase "preparation of payroll" is not specifically
stated in the statutes defining the county clerk's duties, but she argued that general authority
conferred by the legislature intended the responsibility to be within her province. She also
asserted that three separate issues were ripe for adjudication including: (1) whether the
preparation of payroll is a statutorily mandated duty of the county clerk; (2) whether the transfer
of payroll to the HRD is more efficient and effective utilization of county services as required by
K.S.A. 12-3903; and (3) whether the Board may reduce the clerk's budget for the purpose of
transferring payroll. Perry attached her own affidavit to the response.
The Board timely filed a reply, asserting that summary judgment was appropriate.
On May 10, 2005, the court heard oral arguments. The Board opined that the only issue
before the court was whether the preparation of payroll was a statutorily mandated duty of the
county clerk. Specifically, the Board asserted that the "statutory duties of the county clerk are
really those of a records custodian rather than a records creator." In response, Perry argued that
the purpose of the hearing was not to address the merits of the motion, but rather to simply
discern whether an actual case or controversy existed to support the motion for declaratory
judgment. Nevertheless, Perry addressed the Board's statutory argument. She specifically
discussed K.S.A. 19-306 and asserted that the statute is not simply a record keeping statute.
Following the hearing, the district court held that under K.S.A. 19-301 et
seq., the
preparation of payroll is not a duty of the county clerk. The court also held that K.S.A. 12-3901
was not applicable because the resolution did not constitute a county reorganization. As a result,
the court granted the Board's dispositive motion. Perry timely appealed.
ANALYSIS
Issue 1: Did the district court err in addressing the merits of the action?
Standard of review
Perry argues that the district court erred in addressing the merits of the action, premising
her argument on the standard of review applicable to a motion to dismiss under K.S.A.
60-212(b)(6). The Board responds that the appropriate standard of review is that of a motion for
summary judgment. It notes that under K.S.A. 60-212(b)(6), if "matters outside the pleading are
presented to and not excluded by the court, the motion shall be treated as one for summary
judgment and disposed of as provided in K.S.A. 60-256." K.S.A. 60-212(b); see Davidson
v.
Denning, 259 Kan. 659, 666-68, 914 P.2d 936 (1996). We agree with the Board because it
attached several exhibits to its motion to dismiss, and Perry attached a sworn affidavit to her
response.
The law surrounding review of summary judgments is well established:
"'"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.
The trial court is required to resolve all facts and inferences which may reasonably be drawn
from
the evidence in favor of the party against whom the ruling is sought. When opposing a motion for
summary judgment, an adverse party must come forward with evidence to establish a dispute as
to
a material fact. In order to preclude summary judgment, the facts subject to the dispute must be
material to the conclusive issues in the case. On appeal, we apply the same rules and where we
find reasonable minds could differ as to the conclusions drawn from the evidence, summary
judgment must be denied." [Citations omitted.]'" State ex rel. Stovall v. Reliance Ins.
Co., 278
Kan. 777, 788, 107 P.3d 1219 (2005).
Discussion
In granting the Board's motion, the district court found "that there is no factual dispute
between the parties. Instead, this is a pure issue of law to be determined by the Court." On
appeal, Perry does not claim that a factual controversy exists, i.e., that there is a
genuine issue of
material fact.
Nevertheless, Perry claims that resolution of the issue was not proper absent "notice and
an opportunity to be heard at a meaningful time and in a meaningful manner." She argues that
although she was provided notice and a hearing on the motion to dismiss issue, she was not
provided the opportunity to be heard regarding the merits of her claim. We disagree.
In her petition, Perry discussed the relevant statutes and argued that the statutes had "been
interpreted to mean that the legislature intended the county payroll function and responsibility to
be the province of the county clerk." She cited a Kansas Attorney General Opinion in support.
Thereafter, in her written response to the Board's motion to dismiss, she reiterated her argument
that the preparation of payroll is a statutory duty of the county clerk. At the hearing, she
specifically discussed K.S.A. 19-306 and asserted that the statute is not simply a record keeping
statute, citing several cases in support. Finally, Perry argued the pure question of law as her
attorney told the court: "There is an Attorney General Opinion that also agrees with this position
and we say that the issue is ripe for the Court's consideration for the Court to take a look at
the
statutes and give them an interpretation." (Emphasis added.)
Perry availed herself of the opportunity to argue the pure issue of law in her written
response and at oral argument. We conclude the district court correctly addressed the merits.
Issue 2: Did the district court err in holding that the preparation of payroll is not a
statutorily
mandated duty of the county clerk?
Standard of review
Analysis of this issue requires statutory interpretation, a question of law over which our
review is unlimited. Accordingly, when determining a question of law, the Supreme Court is not
bound by the trial court's interpretation of a statute. Schmidtlien Electric, Inc. v.
Greathouse, 278
Kan. 810, 819, 104 P.3d 378 (2005).
Discussion
Perry argues that the district court erred in holding that preparation of payroll is not a
statutorily mandated duty of the clerk per K.S.A. 19-301 et seq. The Board obviously
disagrees,
citing the plain language of the statutes.
A short review of the relationship among the state, counties, and county
officials is in
order. As we stated in Board of Lincoln County Comm'rs v. Nielander, 275 Kan.
257, 264, 62
P.3d 247 (2003):
"'Home rule powers are those granted by the Constitution or by legislative act to
units of local
government to transact local business and perform such local and administrative duties as these
local units
may deem appropriate, subject to certain limitations imposed upon such grant of power. [Citation
omitted.]
. . . In 1974, the legislature passed an act granting powers of home rule to counties.
L. 1974, ch. 110. [See
K.S.A. 19-101 et seq.] "Counties in Kansas are now empowered to transact all
county business and
perform such powers of local legislation and administration as may be appropriate, subject,
however, to the
restrictions and prohibitions set forth in K.S.A. 19-101a." [Citation omitted.]'" (Quoting
Board of Trego
County Comm'rs v. Kansas Dept. of Revenue, 261 Kan. 927, 930, 933 P.2d 691 [1997].)
Moreover, the board's home rule powers "shall be liberally construed for the purpose of
giving to
counties the largest measure of self-government." K.S.A. 19-101c.
Although the board's home rule powers are broad, K.S.A. 19-101a lists some limitations
and prohibitions. If a county's resolution conflicts with any of the restrictions found in subsection
(a), the resolution is null and void. K.S.A. 2005 Supp. 19-101a(c). Only one such prohibition,
(15), appears to specifically deal with the county clerk: the board may not exempt from or effect
changes in his or her authority under K.S.A. 19-302 to appoint, promote, demote, dismiss, and
supervise deputies and assistants and to submit a budget to the board. It clearly does not concern
the present issue.
Another prohibition generally concerns those legislative acts that are applicable to all
counties: "Counties shall be subject to all acts of the legislature which apply uniformly to all
counties." K.S.A. 2005 Supp. 19-101a(a)(1). There are several general statutes concerning county
clerks that "apply uniformly to all counties." See K.S.A. 19-301 et seq. Perry
concedes that none
explicitly state that "preparation of payroll" is the function of the county clerk. Nevertheless, she
argues that the duty can be inferred from construing K.S.A. 19-305, K.S.A. 19-306, K.S.A.
19-311, and K.S.A. 19-312 as a whole. We disagree.
"The fundamental rule to which all other rules are subordinate is that the intent of
the
legislature governs if that intent can be ascertained, and when a statute is plain and unambiguous,
the court must give effect to the intention of the legislature as expressed rather than determine
what the law should or should not be. [Citation omitted.]" State v. Denney, 278 Kan.
643, 650,
101 P.3d 1257 (2004).
The legislature is presumed to have expressed its intent through the language of the
statutory scheme it enacted. State v. Marsh, 278 Kan. 520, Syl. ¶ 18, 102 P.3d
445 (2004). This
means that "[w]hen a statute is clear and unambiguous, the court must give effect to the statute as
written, and there is no need to resort to statutory construction." State v. Sodders,
255 Kan. 79,
Syl. ¶ 4, 872 P.2d 736 (1994). See also In re Mary P., 237 Kan. 456, 459, 701
P.2d 681 (1985)
(when statute clear and unambiguous, no room left for statutory construction). As this court
stated in State v. Haug, 237 Kan. 390, 391-92, 699 P.2d 535 (1985):
"The statute is clear and unambiguous in this regard and is not open to construction or
speculation
as to the legislative intent behind it. It has long been the rule in Kansas that in determining
whether a statute is open to construction, or in construing a statute, ordinary words
are to be given
their ordinary meaning and courts are not justified in disregarding the unambiguous language.
[Citations omitted.] Even a penal statute subject to strict construction should not be read so as to
add that which is not readily found therein, or to read out what, as a matter of ordinary language,
is in it. [Citations omitted.]" (Emphasis added.)
Consequently, analysis of the dispute begins with a plain reading of the applicable
statutes.
K.S.A. 2005 Supp. 19-304 outlines some of the county clerk's duties. Perry does not
address this statute which provides:
"The county clerk shall: (a) Keep the clerk's office at the county seat; (b) attend the
sessions of the
board of county commissioners, either in person or by deputy; (c) keep the seals, records and
papers of the board of commissioners; (d) sign the records of the proceedings of the board of
commissioners, and attest the same with the seal of the county; and (e) have the general powers
of
a notary public in the performance of all notarial acts."
Based upon the plain language, "preparation of payroll" is not a duty of the county clerk.
Perry points to K.S.A. 19-305 which provides in relevant part:
"It shall be the general duty of the county clerk: . . . fourth, [to] sign all orders
issued by the board
for the payment of money; fifth, to preserve and file all accounts
acted upon by the board, with
their action thereon; and he shall perform such special duties as are required of him by law."
(Emphasis added.)
Perry asserts that under the plain language, the county clerk must sign all county payroll
checks. This, however, is not inconsistent with the resolution. Perry also argues that because the
language authorizes the clerk to "preserve and file all accounts," it would be illogical to conclude
that the preparation of payroll is not included. The Board responds that "preserve" is not
synonymous with "prepare" and that the county clerk is therefore a records "custodian" and not a
records "preparer."
Perry next points to K.S.A. 19-306 which provides:
"It shall be the duty of the clerk to designate, upon every account
which shall be audited and
allowed by the board, the amount so allowed. Such clerk shall also deliver to
any person who
may demand it, a certified copy of any record in such clerk's office, or any account on file
therein,
on receiving from such person a fee in accordance with a schedule of fees established pursuant to
subsection (c) of K.S.A. 45-219, and amendments thereto." (Emphasis added.)
Perry argues that it would be impossible for the county clerk to designate the amounts
allowed on payroll accounts without actually performing the function involved in the preparation
of payroll. The Board responds that the plain language does not create a duty to prepare records;
rather, the statute only mandates that the clerk shall deliver copies of the records which the clerk
must maintain.
Perry next highlights K.S.A. 19-311, which states: "The county clerk of each county of
this state shall keep a book in which he shall keep the receipts and
expenditures of his county,
and all accounts of his county with the different county, township, district, and
other officers."
(Emphasis added.)
Perry argues that the word "keep" is defined as "to maintain continuously and
methodically for the purposes of a record." See Black's Law Dictionary 780 (5th ed. 1979). She
alleges that absent the authority to prepare payroll, the county clerk would not be able to
adequately maintain the payroll records. The Board responds that this statute only
implicates the
county clerk's duty to operate as a records custodian designated to maintain records created by
other county officials and the Board.
Finally, Perry points to K.S.A. 19-312, which provides in relevant part:
"The county clerk, in keeping the accounts of his county with the county treasurer, shall
charge
the county treasurer as follows: With the amount of taxes levied and assessed by the state and
county, and each city, town, village, township, school district, or any other special tax levied for
any purpose in his county, in each year, and the same shall be kept in separate accounts."
Perry asserts that because the county clerk is required to keep track of state income
withholding tax, preparation of payroll is necessarily a duty of the county clerk. The Board
responds, however, that the statute only authorizes the clerk to work in concert with the county
treasurer. Moreover, we independently observe that K.S.A. 2005 Supp. 19-212a authorizes the
board to direct "the proper officers" to withhold from the salaries of board officers and
employees sums for the payment of certain insurance, which suggests a payroll function being
performed at the direction of the board and not independently by the county clerk.
While Perry acknowledges that "preparation of payroll" is not specifically discussed in
these statutes defining the county clerk's duties, she invites us to look beyond consideration of
the actual language used to the historical background of the enactment, the circumstances
attending its passage, the purpose to be accomplished, and the effect the statute may have under
the various constructions suggested, citing Brown v. Keill, 224 Kan. 195, 200, 580
P.2d 867
(1978).
We decline Perry's invitation because we need not consider these factors when the statute
is unambiguous. She does not allege that the language in any of the applicable statutes is
ambiguous; nor do we find them so.
Perry also cites Attorney General Opinion 82-135 in support. There, the Attorney General
addressed a quite similar issue: "whether the Board of County Commissioners of Reno County
has the authority to enact a resolution transferring the county payroll accounting function and
responsibility from the county clerk to a proposed county department of administration." Att'y
Gen. Op. No. 82-135, p. 1. The opinion analyzed K.S.A. 19-305, 19-306, 19-311, 19-312, and
19-313. Although the Attorney General found that the statutes did not specifically use the term
payroll, he opined that "[t]he general authority conferred on county clerks by K.S.A. 19-301 et
seq. and the above-cited authorities lead to the conclusion that the legislature intended the county
payroll function and responsibility to be the province of the county clerk." Att'y Gen. Op. No.
82-135, p. 3.
In arriving at his conclusion, the Attorney General quoted Cherokee County
Comm'rs v.
United States F. & G. Co., 141 Kan. 301, 303, 40 P.2d 371 (1935), for the
proposition that the
county clerk's office is "the general bookkeeping office of the county. The county clerk
keeps
accounts of receipts and expenditures of the county, and keeps accounts of the
county with its
various officers." (Emphasis added.)
We have long held that "[t]he construction placed upon a statute by the opinion of an
attorney general is neither conclusive nor binding on the court, and in circumstances where such
an opinion is without authoritative legal support, it should not be approved or followed."
Greenwood v. Estes, Savings & Loan Commissioner, 210 Kan. 655, Syl.
¶ 3, 504 P.2d 206
(1972). As previously discussed, the Attorney General's opinion is not consistent with the plain
language of the statutes. We hold his opinion is unpersuasive for other reasons as well.
Decisions from the Texas and Michigan supreme courts are on point. The decisions
reveal that their state statutes specify the authority of certain county officers. Absent a particular
listing in those statutes, the specific authority must come from the county's governing body.
In Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex.
1997), the
county treasurer brought a declaratory judgment action against the county auditor and the
county's governing body, known as the Commissioners Court, to challenge the commissioners'
decision to transfer to the auditor the treasurer's long-time payroll preparation duties. The court
observed that the Texas Legislature had the responsibility to prescribe the county treasurer's
duties. It examined different statutes that enumerated the county treasurer's functions,
i.e.,
keeping all money belonging to the county in a designated depository and accounting for all
county money; keeping accounts of the county receipts and expenditures and debts of the county;
receiving all money belonging to the county; and disbursing money belonging to the county.
The Agan court next observed that payroll preparation duties were not among
any county
official's enumerated duties established by the legislature, e.g., the treasurer.
Accordingly,
although the legislature had enumerated several functions that cannot be taken away from the
county treasurer, preparing the payroll was not one of them. The court concluded that the
commissioners could transfer any payroll responsibility to the county auditor that the legislature
had not specifically delegated to the county treasurer. It noted, however, that the treasurer's
statutorily established duties, e.g., depositing payroll funds and approving payroll
checks
prepared by the county auditor, remained with the treasurer. 940 S.W.2d at 81-82.
In Ottawa Co. Clerk v. Bd. of Comm'rs, 428 Mich. 300, 407 N.W.2d 384
(1987), the
county clerk brought a declaratory judgment action against the county's board of commissioners
and the county controller to challenge the board's decision to transfer to the controller the clerk's
long-time accounts payable and check writing functions, including payroll. The court observed
that the Michigan Legislature had the responsibility to prescribe the clerk's duties. It examined
different statutes that enumerated the county clerk's functions, i.e., keeping a book in
which shall
be entered all claims in the order in which they are presented; preserving and filing all accounts
acted upon by the board; designating on an account the amount audited and allowed and the
charges for which the amount was allowed; and keeping all books, records, and accounts of the
board. It also observed the statutory duties imposed upon the county controller.
The Ottawa Co. Clerk court next observed that the "accounts payable
function" and
"check writing duties" were not among the enumerated duties established by the legislature for
the county clerk or controller. Consequently, it held that the previous performance of those duties
by the clerk had not been pursuant to an obligation imposed by statute, but by the board. It
concluded that the board could transfer these duties to the county controller and the transfer
would not impinge upon the clerk's statutory duties, e.g., to keep the books, records,
and accounts
of the board. 428 Mich. at 312.
Both supreme courts cited their state statutes specifically authorizing boards to prescribe
duties for particular local officials. While no such official-specific statutes exist in Kansas, the
board's authorization is contained in general statutes. See, e.g., K.S.A. 2005 Supp.
19-101a(a)
(board of county commissioners may transact all county business and perform all powers of local
legislation and administration it deems appropriate, subject only to listed limitations, restrictions
or prohibitions); K.S.A. 19-101c (powers granted counties pursuant to this act shall be liberally
construed for the purpose of giving to counties the largest measure of self-government); K.S.A.
19-212 Second (board has power to examine and settle all accounts of the receipts
and expenses
of the county, and to examine and settle and allow all accounts chargeable against the county);
and K.S.A. 19-212 Sixth (board has power to represent the county and the
management of the
business and concerns of the county, in all cases where no other provision is made by law).
In Kansas, counties are prohibited from passing any legislation which is
contrary to or in
conflict with any act of the state legislature which is uniformly applicable to all counties
throughout the state. Board of Trego County Comm'rs v. Kansas Dept. of Revenue,
261 Kan. 927,
934, 933 P.2d 691 (1997). Here, however, Resolution 05-21does not conflict with the state
statutes governing county clerk's duties because it does not prohibit what the statutes permit and
the statutes do not prohibit what the resolution permits. See 261 Kan. at 934. Stated another way,
transfer of the payroll preparation function would not prevent the county clerk from performing
any of her statutory duties. As Resolution 05-21 clearly states: "This information is to be
presented to the County Clerk for the purpose of allowing the clerk to perform any necessary
function expressly stated in K.S.A. § 19-301 et seq."
Based on the plain and unambiguous language of applicable Kansas statutes, the
preparation of payroll is not a statutorily mandated duty of the county clerk. The legislature's use
of words such as "preserve," "designate," and "keep," are not synonymous with "create" or
"prepare." We also observe that the record on appeal is devoid of complaints about the Board's
lack of authority over the county clerk regarding payroll functions when in 1996 it created a
Department of Personnel and Purchasing to be responsible for preparing and performing all
related payroll functions for the county; when in 1999 the Board terminated that department and
consolidated its duties, including payroll, with the county clerk; and when in 2004 the Board
created the HRD and stated that the county clerk would still carry out the preparation of the
county's payroll. The complaint arose only after the clerk's payroll preparation duties, created by
the Board, were taken away from the clerk–by the Board.
The district court correctly held that preparation of payroll is not a statutorily mandated
duty of the county clerk.
Issue 3: Did the district court err in holding that K.S.A. 12-3903 does not apply to the
present
case?
Perry also argues that the district court erred in holding that K.S.A. 12-3903 was not
applicable to the present case. The Board obviously disagrees, citing the plain language of the
statute. As stated previously, the interpretation of a statute is a question of law over which this
court exercises unlimited review. Schmidtlien Electric, Inc., v. Greathouse, 278 Kan.
810, 819,
104 P.3d 378 (2005).
The Governmental Organization Act, K.S.A. 12-3901 et seq., authorizes
political and
taxing subdivisions of the State to consolidate operations, procedures, and functions of offices of
the subdivision by following the process set forth in the Act. K.S.A. 12-3903 provides:
"(a) Whenever the governing body of any political or taxing subdivision of this
state shall
by resolution determine that duplication exists in the operations, procedures or
functions of any of
the offices or agencies of such subdivision or that the operations, procedures or functions
of any
of the offices or agencies thereof can be more efficiently and effectively exercised or provided as
a
consolidated activity performed by a single intergovernmental office or agency or
whenever the
governing body of any two or more political or taxing subdivisions of this state shall by the
passage of identical resolutions determine that duplication exists in the operations, procedures, or
functions of offices or agencies of such subdivisions or that the operations, procedures, or
functions of any of the offices or agencies thereof can be more efficiently and effectively
exercised or provided as a consolidated activity performed by a single
intergovernmental office or
agency or by a single office or agency of one of the participating political or taxing subdivisions,
such governing body or governing bodies are hereby authorized to consolidate any or
all of the
operations, procedures or functions performed or carried on by such offices or agencies by the
passage of a resolution or identical resolutions setting out the time, form and manner of
consolidation and designating the surviving office or agency.
. . . .
"(c) Whenever the statutorily mandated duties of any elected county
official are
proposed for elimination, by transfer or otherwise, the question of the elimination of any such
duties shall be considered as an elimination of the elective office itself within the meaning of this
section, and shall be subject to an election prior to such elimination as required by subsection (b).
The provisions of this subsection shall not preclude the transfer of duties of an elected office with
the consent of the affected elected official." (Emphasis added.)
In the Journal Entry of Judgment, the district court concluded that "because preparation of
payroll is not a mandated statutory duty of the Clerk, the Governmental Organization Act at
K.S.A. 12-3901 et seq. does not apply."
On appeal, Perry argues that K.S.A. 12-3903 is not limited to statutorily mandated duties.
In support, Perry addresses K.S.A. 12-3901. The statute provides:
"It is the purpose of this act to authorize and permit political and taxing
subdivisions of
this state to more efficiently and effectively serve the needs of their constituents by consolidating
or cooperating in the consolidation of operations, procedures and functions of offices and
agencies of such subdivisions which may be more efficiently and effectively exercised or
provided
by a single office or agency." (Emphasis added.) K.S.A. 12-3901.
As stated previously, the fundamental rule to which all other rules are subordinate is that
the intent of the legislature governs if that intent can be ascertained, and when a statute is plain
and unambiguous, the court must give effect to the intention of the legislature as expressed rather
than determine what the law should or should not be. In determining whether a statute is open to
construction, or in construing a statute, ordinary words are to be given their ordinary meaning
and courts are not justified in disregarding the unambiguous language. State v. Haug,
237 Kan.
390, 391-92, 699 P.2d 535 (1985). Consequently, analysis of this dispute begins with a plain
reading of the statute.
According to the plain language of K.S.A. 12-3903(c), it specifically applies only to
statutorily mandated duties. Given our holding that payroll preparation does not qualify, the
subsection does not apply. According to the plain language of subsection (a), however, it is not
limited to statutorily mandated duties; rather, subject to certain conditions, subsection (a) applies
to any operations, procedures or functions of a political or taxing subdivision.
Although both parties discuss subsection (a), neither acknowledges the main function of
the statute: consolidation. Black's Law Dictionary defines "consolidate" as follows: "To combine
or unify into one mass or body." Black's Law Dictionary 303 (7th ed. 1999). Here, the Board was
not attempting to consolidate the payroll functions performed by the county clerk and the HRD
because payroll preparation was not previously a function of the HRD. Rather, the Board was
attempting to transfer the duty from one who has historically performed that function
to one that
has never performed it. "Transfer" and "consolidate" are not synonymous because as the statute
itself states, after consolidation there will be only one "surviving office or agency." K.S.A.
12-3903(a). Merely transferring one of the county clerk's previous duties does not result in the
eradication of that office. Subsection (a) is inapplicable to the instant case.
Affirmed.
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