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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 99,021 FORT HAYS STATE UNIVERSITY, Appellant/Cross-appellee, v. FORT HAYS STATE UNIVERSITY CHAPTER, AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, Appellee/Cross-appellant, and THE KANSAS PUBLIC EMPLOYEE RELATIONS BOARD, Appellee/Cross-appellee.

FORT HAYS STATE UNIVERSITY CHAPTER, AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, Plaintiff, v. FORT HAYS STATE UNIVERSITY AND THE KANSAS PUBLIC EMPLOYEE RELATIONS BOARD, Defendants.

SYLLABUS BY THE COURT

1. Kansas administrative agencies have no common-law powers. Any authority an agency or board claims must be conferred in the authorizing statutes either expressly or by clear implication from the express powers granted.

2. An appellate court exercises unlimited review on questions of statutory interpretation without deference to an administrative agency's or board's interpretation of its authorizing statutes.

3.

The purposes of the Public Employer-Employee Relations Act (PEERA), K.S.A. 75-4321 et seq., are to obligate public agencies, public employees, and their representatives to enter into discussions with an affirmative willingness to resolve grievances and disputes relating to conditions of employment and to promote the improvement of public employer-employee relations within the various agencies of the State and its political subdivisions by providing a uniform basis for recognizing the right of public employees to join organizations, if they so choose, and be represented by such organizations in their employment relations and dealings with public agencies. K.S.A. 75-4321(b).

4.

K.S.A. 75-4323 confers upon the Public Employee Relations Board (PERB) the following general powers: (a) establish procedures preventing improper labor practices; (b) hold hearings and make inquiries necessary to carry out its functions and powers; (c) amend and rescind rules and regulations; and (d) exercise such other powers, as appropriate to effectuate the purposes and provisions of PEERA.

5.

K.S.A. 75-4334(b) provides that when a prohibited practice complaint is filed with PERB, it shall either dismiss the complaint or determine that a prohibited practice has been, or is being, committed. If PERB finds an accused party has committed or is

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committing a prohibited practice, it shall make findings as authorized by PEERA and shall file them in the proceedings.

6.

PERB has no express or implicit authority to award money damages as a consequence for a public employer or its designated representative's violation of K.S.A. 75-4333(b) concerning willful prohibited practices.

Review of the judgment of the Court of Appeals in 40 Kan. App. 2d 714, 195 P.3d 259 (2008). Appeal from Shawnee District Court; CHARLES E. ANDREWS, JR., judge. Opinion filed April 22, 2010. 2010. Judgment of the Court of Appeals is affirmed. Judgment of the district court is reversed and remanded with directions.

Todd D. Powell, general counsel, of Fort Hays State University, argued the cause, and Wm. Scott Hesse, assistant attorney general, was with him on the briefs for appellant/cross-appellee.

Lawrence G. Rebman, of Rebman & Associates, LLC, of Kansas City, Missouri, argued the cause and was on the briefs for appellee/cross-appellant Fort Hays State University Chapter, the American Association of University Professors.

Darren E. Root, staff attorney, of Kansas Department of Labor, argued the cause, and A.J. Kotich, general counsel, was with him on the briefs for appellee/cross-appellee Kansas Public Employees Relations Board.

Mark A. Kistler and Steve A.J. Bukaty, of Steve A. J. Bukaty, Chartered, of Overland Park, were on the brief for amicus curiae Kansas State Lodge of the Fraternal Order of Police.

The opinion of the court was delivered by

BILES, J.: By appeal and cross-appeal, all parties challenge rulings concerning a money damages award ordered by the Public Employee Relations Board (PERB or the
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Board) to accompany findings that Fort Hays State University (FHSU) engaged in prohibited labor practices under the Public Employer-Employee Relations Act (PEERA), K.S.A. 75-4321 et seq. The university challenges the agency's statutory authority to impose money damages. All parties agree PERB has no express authority in this regard.

Therefore, the threshold question is whether K.S.A. 75-4323(e)(3) implicitly grants PERB authority to order money damages as a consequence for prohibited practice violations. This is an issue of first impression for this court. We hold the statute does not allow PERB to assess money damages for these infractions. This holding renders all other issues moot. We explain our reasoning below.

FACTUAL AND LEGAL BACKGROUND The university hired Frank Gaskill as an associate professor for the 2000-2001 academic year. Gaskill was initially hired on the tenure track, and his employment agreement granted 4 years of credit toward tenure. At the time he was hired, the Fort Hays State University Chapter of the American Association of University Professors (AAUP) was the certified representative for FHSU professors. This certification imposed certain duties upon FHSU in its labor practices and gave AAUP certain rights as the bargaining representative under PEERA. See K.S.A. 75-4327(b).

On May 2, 2001, FHSU notified Gaskill it was not extending an employment offer for the 2001-2002 academic year. At the time Gaskill was terminated, FHSU and AAUP had not entered into a "memorandum of agreement" regarding the conditions of employment, grievance procedures, or provisions for the impartial arbitration of disputes as authorized under PEERA. See K.S.A. 75-4327(b); K.S.A. 75-4330. The parties appear to agree the faculty handbook existing prior to AAUP's certification provided the grievance process for Gaskill to object to his termination. It is unclear whether the parties
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agree certain handbook provisions were overridden by PEERA, but that is certainly PERB's finding in this case. That finding is not presented as an issue here.

The prohibited practices relevant to this appeal occurred during Gaskill's attempts to grieve the termination decision. Much of the conflict between the parties involved provisions in the handbook and the university's efforts restricting or ignoring AAUP's efforts on Gaskill's behalf. Eventually, AAUP filed a prohibited practices complaint with PERB alleging the university failed to respect AAUP's representational status as required by law. AAUP claimed the university violated PEERA by: (1) failing and refusing to allow AAUP to represent Gaskill during the grievance process; (2) failing to provide information required for AAUP to represent Gaskill; and (3) unilaterally changing the terms and conditions of employment without first bargaining in good faith with AAUP.

Gaskill was not a party to the AAUP's administrative action. But approximately 6 months after the agency proceedings commenced, Gaskill initiated his own civil lawsuit against the university in Ellis County District Court alleging breach of his employment agreement. The district court dismissed the lawsuit because it was brought as a civil action under chapter 60. The district court ruled Gaskill's exclusive remedy was under the Kansas Judicial Review Act (KJRA). See K.S.A. 2009 Supp. 77-601 et seq. It also determined Gaskill had not exhausted his administrative remedies with the university as the KJRA required. The Court of Appeals affirmed. Gaskill v. Ft. Hays State Univ., 31 Kan. App. 2d 544, 546, 70 P.3d 693 (2003) (KJRA is "the exclusive remedy for professors claiming either wrongful termination or breach of contract against the state educational institutions listed in K.S.A. 76-711[a].").

After the Court of Appeals affirmed dismissal of Gaskill's contract claim, the presiding officer designated by PERB to hear AAUP's administrative action issued an initial order. The presiding officer recognized a certified employee organization, such as
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AAUP, had the right to represent employees in grievance proceedings under K.S.A. 754328. The presiding officer found FHSU's refusal to allow AAUP to actively represent Gaskill during an informal grievance process violated K.S.A. 75-4333(b)(6) (denial of employee organization's rights accompanying certification). The presiding officer further found the university refused or failed to provide adequate, timely notice of the scheduled grievance proceedings to AAUP, which constituted another K.S.A. 75-4333(b)(6) violation.

The presiding officer additionally held Gaskill was entitled to a formal hearing under the employee handbook, so FHSU's failure to begin those formal proceedings after they were requested amounted to a unilateral change to Gaskill's conditions of employment without meeting and conferring first with AAUP. This action was deemed to be a prohibited practice under K.S.A. 75-4333(b)(5) (refusal to meet and confer in good faith with representatives).

Finally, the presiding officer concluded that any prohibited practices found against a public employer under K.S.A. 75-4333(b)(2)-(8) necessarily amounted to another prohibited practice under K.S.A. 75-4333(b)(1) (interfere, restrain, or coerce public employees in the exercise of rights granted in K.S.A. 75-4324). Each violation was found to be willful and harmful to AAUP.

The presiding officer then entered various remedial orders against FHSU: (1) cease and desist from the prohibited practices; (2) post a notice advising employees FHSU will recognize AAUP's right to represent bargaining unit members; (3) post a notice advising all employees FHSU will not interfere with, restrain, or coerce employee rights under PEERA; and (4) post a notice advising employees the university will not unilaterally change terms and conditions of employment applicable to unit members without first meeting and conferring in good faith over those conditions. These four
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remedial orders, and the findings supporting them, were not appealed and are not before us.

The fifth remedy focuses our attention for this appeal. The presiding officer awarded $142,013.62 in money damages to Gaskill, even though Gaskill was not a party to the administrative action. This award was characterized as a "make-whole remedy," which is a term not previously found in our case law or PEERA, but seems to connote returning Gaskill to the status quo existing prior to the prohibited practices violations. See Oxford Dictionary of Modern Legal Usage 543 (2d ed. 1995).

The following claimed damages comprised the award: (1) $10,147 in decreased salary for academic year 2001-2002

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