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Kansas Supreme Court Selected Opinion Summaries
Prager v. State, Docket 83714
March 23, 2001

Summaries and press releases are prepared by Ron Keefover, Office of Judicial Administration, Kansas Judicial Center, 301 West 10th, Topeka, KS 66612-1507 (785-296-2256), e-mail: keefoverr@kscourts.org.

RE: Appeal No. 83,714: David Prager III v. State of Kansas et al.

The Supreme Court without commenting on its merits today sent a case brought by a former Department of Revenue attorney back to the trial court for further proceedings on two of seven of his wrongful termination claims.

The court, in a unanimous decision authored by Justice Edward Larson, returned the case brought by former Revenue attorney David Prager III to Shawnee County District Court for a determination of whether the Secretary of Revenue should be compelled to reinstate him to the position and whether he was damaged by a delay in his post-termination administrative hearing. But, the court ruled, his claims for money damages for retaliatory termination under the Kansas Tort Claims Act, for whistle blowing, as well as First Amendment and due process claims, were correctly dismissed by Shawnee County District Judge Terry Bullock prior to a trial on the merits.

The court further held that as a classified state employee, Prager's claims for whistle blowing may only be brought under provisions of the Kansas Civil Service Act.

The appeal arose from the Prager's termination in May 1997, following a controversy in the Department of Revenue that arose when he sent a letter in the fall of 1996 with a 12-page memo to Gov. Bill Graves to defend his handling of tax matters for the department. He was suspended on February 6, 1997, and appealed to the Civil Service Board; however, while the appeal was pending he sent a second letter to the governor expressing concern about a possible illegal tax refund. The Civil Service Board later ruled against him on all issues, and an appeal from that decision is pending in the district court.

The dismissal of Prager's First Amendment and due process claims for damages under the Kansas Tort Claims Act was based on the state of Kansas' sovereign immunity.

Regarding his claim of retaliatory discharge for whistle blowing, Justice Larson wrote that the ultimate question before the court was whether the Civil Service statute provides Prager "with an adequate remedy."

He said the statute "provides that a classified employee such as Prager, who alleges he was disciplined in violation of it, has the right to appeal to the Kansas Civil Service Board." He said the Legislature has provided extensive procedures to employees such as Prager, including "representation by counsel, filing of pleadings, issuing of subpoenas, discovery, presentation of evidence and arguments in a hearing, reconsideration, and ultimately filing appeals.

"State employment comes with benefits, but it is also necessary for the general public good that employees accept limitations that ensure a workable system," he wrote. "We hold that (the Civil Service Act) provides a classified civil service employee an adequate remedy for claimed whistle blowing activities, and the dismissal of Prager's purported common-law whistle blowing claim is affirmed," Justice Larson wrote.

Today's appeal was decided by five members of the Supreme Court and two district judges because of recusals by Justices Fred N. Six and Bob Abbott. Sitting in their place for this appeal were Johnson County District Judge Steve Leben and Senior Judge John Weckel.