Opinion
No. 108,443.
2013-03-8
David L. WOODWARD, Appellant, v. KANSAS PUBLIC EMPLOYEES RETIREMENT SYSTEM, Appellee.
Appeal from Shawnee District Court; Rebecca W. Crotty, Judge. David L. Woodward, appellant pro se. A. Kathleen Billings, of Kansas Public Employees Retirement System, for appellee.
Appeal from Shawnee District Court; Rebecca W. Crotty, Judge.
David L. Woodward, appellant pro se. A. Kathleen Billings, of Kansas Public Employees Retirement System, for appellee.
Before ATCHESON, P.J., PIERRON, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
In this pro se appeal, David L. Woodward challenges the decision of the administrative hearing officer (AHO), affirmed by the district court, that all contributions and interest in his Kansas Public Employee Retirement System (KPERS) account were paid to him in 1989. Woodward disputes the authenticity of the documents showing he received payment and contends that Kansas law prohibited him from withdrawing his contributions at that time. We affirm the lower court's finding that Woodward was able to withdraw his KPERS contributions because he switched his retirement plan from KPERS to the Kansas Police and Firefighters Retirement System (KP & F) in 1989, and the evidence shows that KPERS paid Woodward his contributions.
KPERS was created by the Kansas Legislature to provide retirement and other benefits to employees of participating members. K.S.A. 74–4901. During two stints as a KPERS-covered law enforcement, employee contributions were made to Woodward's account, but he then withdrew his KPERS contributions, once in 1973 and again in 1976. In January 1982, Woodward began his employment as a police officer with Wichita State University (WSU). He was again covered by KPERS.
In 1988, WSU became affiliated with KP & F and allowed its police officers to elect to be covered by KP & F rather than KPERS. Woodward signed a document entitled “Election of Coverage” on June 30, 1989, in which he elected to become a member of KP & F. On July 18, 1989, Woodward began contributing to KP & F. Consequently, a summary of his contributions up to that point indicated two accounts, one for KPERS and one for KP & F.
On August 1, 1989, Woodward signed a document entitled “Application for Withdrawal—KPERS.” On September 11, 1989, KPERS sent Woodward “Warrant No. 2053659 in the amount of $6739.76.” The microfiche copy of the KPERS documents indicates the warrant was mailed to the same address listed on Woodward's application for withdrawal. Woodward continued his contributions to KP & F and his employment with WSU as a police officer until he was incarcerated in 1991 for multiple felonies. On September 19, 1991, Woodward executed another “Application for Withdrawal—KPERS.” On October 28, 1991, KPERS sent Woodward “Warrant No. 005314453” in the amount of $3,737.94, representing the amount of contributions and interest in his KP & F account. The matter lay dormant for nearly 20 years.
In 2010, Woodward corresponded with KPERS, alleging they never paid him his KPERS contributions because his ex-wife had not received the KPERS money. The basis for his argument was that since he was still employed at WSU at the time of the alleged withdrawal in 1989, it was legally impossible for him to make a withdrawal because of his continued employment with a KPERS entity. KPERS rejected his claim based on the documents representing actual payment to Woodward.
On December 8, 2010, Woodward filed a petition in Shawnee County District Court alleging that KPERS still owed him $6,739.76 in accumulated contributions and interest. The district court remanded the case for an administrative hearing where the parties could present evidence and the AHO could render a decision on the merits. The AHO found that Woodward's belief that he did not receive his KPERS money was contradicted by the documentary evidence presented by KPERS. The AHO found there was no reason to doubt the microfiche copies of notary-signed documents demonstrating application and payment for the KPERS benefits. Woodward appealed for judicial review.
The district court conducted a review of Woodward's case pursuant to the Kansas Judicial Review Act (KJRA) and rejected all three of his arguments. The district court found Woodward had misinterpreted K.S.A. 74–4917 (Ensley 1985) and when he began making contributions to KP & F, he was no longer a contributing member of KPERS which allowed him to withdraw his KPERS contributions even though he remained employed by the State.
The district court also held that the AHO had properly admitted the microfiche records of Woodward's withdrawal through testimony of a KPERS employee. There was no evidence the documents had been altered or destroyed with fraudulent intent. Consequently, the documents presented the best evidence under K.S.A. 60–467.
Last, the district court held that the testimony of the KPERS employee was not hearsay because she testified as to the process of storage of KPERS documents, not to the authenticity of Woodward's signature on the documents.
Woodward appeals.
We review the actions of an administrative body like KPERS under the KJRA, K.S.A.2012 Supp. 77–601 et seq. See Sheldon v. KPERS, 40 Kan.App.2d 75, 79, 189 P.3d 554 (2008). The party challenging the administrative agency's ruling bears the burden to show the agency's action was wrong, but courts may grant relief if the agency has made an error in interpreting or applying the law. K.S.A.2012 Supp. 77–621(a)(1), (c)(4). We review the matter independently, without any required deference to the district court's conclusion. Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010).
K.S.A.2012 Supp. 77–621(c) lists the bases for granting Woodward relief upon judicial review. These are the standards that apply in both the district court and in this court on appeal. The relevant subsections of K.S.A.2012 Supp. 77–621(c) are whether:
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
“(8) the agency action is otherwise unreasonable, arbitrary or capricious.”
Here, we must determine, in light of the entire record, whether there is substantial evidence to support the AHO's conclusion that KPERS paid Woodward the benefits in 1989. The foundation of Woodward's argument rests on his claim that there is no way he could have been paid his KPERS benefits in 1989 because it would have been illegal for KPERS to pay those benefits while he was still employed at WSU. See K.S.A. 74–4917 (Ensley 1985) (“Upon termination of employment with a participating employer, ... the member shall be paid an amount equal to the member's accumulated contributions then on deposit with the system after making application in such form as may be prescribed by the board....”). Woodward's statutory argument misses several important steps for a completed argument.
Woodward's argument under K.S.A. 74–4917 (Ensley 1985) assumes that his application for withdrawal of benefits dated August 1, 1989, was denied by KPERS. Neither Woodward nor KPERS provides any documents showing a rejection or denial of the request to withdraw benefits. The question of whether Woodward could legally have been paid benefits is rendered moot by the findings of the AHO and the district court that the evidence shows Woodward was in fact paid his KPERS benefits in 1989. See Manly v. City of Shawnee, 287 Kan. 63, Syl. ¶ 4, 194 P.3d 1 (2008) (“An issue is moot where any judgment of the court would not affect the outcome of the parties' controversy.”). Consequently, our focus is whether the evidence supports the AHO's decision.
We apply the KJRA's substantial-evidence test as it was revised in 2009. See K.S.A.2012 Supp. 77–621(d); Redd v. Kansas Truck Center, 291 Kan. 176, 183, 239 P.3d 66 (2010). Under that test, we must carefully review all the evidence, including evidence contrary to the AHO's decision, to determine whether substantial evidence supports that decision. K.S.A.2012 Supp. 77–621(c)(7), (d). To be substantial, the evidence in support of the decision must be such that a reasonable person could accept it as being sufficient to support the conclusion reached. See In re Protests of Oakhill Land Co., 46 Kan.App.2d 1105, 1113–14, 269 P.3d 876 (2012).
Substantial evidence possesses both relevance and substance, and it provides a substantial basis of fact from which the issues can be reasonably determined. Frick Farm Properties v. Kansas Dept of Agriculture, 289 Kan. 690, 709, 216 P.3d 170 (2009). Reviewing in light of the record as a whole includes evidence both supporting and detracting from an agency's finding. K.S.A.2012 Supp. 77–621(d). But we do not reweigh the evidence or engage in de novo review. K.S.A.2012 Supp. 77–621(d),
Woodward has the burden of proving the invalidity of the agency action. See K.S.A.2012 Supp. 77–621(a)(1). We hold that Woodward has failed in both the district court and our court in meeting this burden. Looking at the record as a whole, the decision of the AHO is supported by substantial competent evidence.
On two prior occasions, Woodward had accumulated KPERS benefits and withdrew those benefits after he left KPERS-covered employment. He knew the process and the result of applying to withdraw benefits. Woodward continued his employment with WSU for over 2 years, and if he is to be believed, he never questioned during those 2 years the fact that he had not been paid the KPERS benefits that he attempted to withdraw in 1989. Furthermore, if Woodward had not been paid his KPERS benefits in 1989, those benefits would have appeared later when he again requested a withdrawal of benefits when he left WSU in 1991 because of his incarceration.
Woodward challenges the authenticity and admissibility of the documents admitted by the AHO. Woodward's arguments are not persuasive. This court has consistently held that “liberality is allowed in the taking of testimony and the admission of evidence in proceedings before administrative boards, and that such agencies are not bound by strict and technical rules of evidence or procedure.” Kansas State Board of Healing Arts v. Burwell, 5 Kan.App.2d 357, 361, 616 P.2d 1084,rev. denied 228 Kan. 807 (1980) (citing Morra v. State Board of Examiners of Psychologists, 212 Kan. 103, Syl. ¶ 3, 510 P.2d 614 [1973] ); See also K.S.A. 77–524(a) (”A presiding officer need not be bound by technical rules of evidence.... Evidence need not be excluded solely because it is hearsay.)”.
Even if the strict rules of evidence were applied in this case, KPERS still followed proper evidentiary procedure in presenting the documents to the AHO. Mary Green, a KPERS member services officer, testified as to KPERS's policy of electronic storage of its records in the regular course of business and how the only copies of the documents during the time period in question would be on microfilm or microfiche. While the Kansas best-evidence rule normally provides that no evidence other than the writing itself may be admitted to prove its contents, K.S.A. 60–467(a), there is an exception when the writing has been lost or destroyed without any fraudulent intent on the part of the party offering the document. See K.S.A. 60–467(a)(2); see also K.S.A. 77–524(e) (In an administrative hearing, “[d]ocumentary evidence may be received in the form of a copy or excerpt. Upon request, parties shall be given an opportunity to compare the copy with the original if available.”). The documents presented to the AHO satisfied the best evidence rule. See K.S.A. 60–467.
The testimony and documents presented to the AHO provided an evidentiary trail supporting the ruling that KPERS paid Woodward his benefits in 1989. The AHO heard testimony concerning the decision of the Regents institutions (including WSU) to affiliate with KP & F instead of KPERS and how WSU police officers had the option to elect KP & F or stay with KPERS. The documents submitted by KPERS showed that Woodward elected to become a member of KP & F and that his contributions to KPERS stopped at that point. The documents also demonstrated that Woodward executed a withdrawal of his KPERS benefits in 1989 because he was not a vested member with more than 10 years of contributions. Woodward's application for withdrawal was signed before a notary public. See K.S.A. 53–503(a) (notary signature acknowledges “that the person appearing before the officer and making the acknowledgment is the person whose true signature is on the instrument”). Last, on September 11, 1989, KPERS sent Woodward “Warrant No. 2053659 in the amount of $6739.76.” The microfiche copy of the KPERS document indicates the warrant was mailed to the same address listed on Woodward's application for withdrawal. In light of all the evidence provided to the AHO, we find there is substantial competent evidence to support the decision that KPERS has paid Woodward all KPERS contributions and interest.
Affirmed.