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73-201. Preference in governmental employment and promotion; notice when veteran not hired; notice of job openings, information regarding preference; remedy when preference not provided. (a) As used in this act: (1) "Veteran" means:

(A) Any person who entered the armed forces before October 15, 1976, and separated from the armed forces under honorable conditions, if such person served: (i) On active duty during any war (the official dates for war service are April 6, 1917 through July 2, 1921, and December 7, 1941 through April 28, 1952); (ii) during the period April 28, 1952 through July 1, 1955; (iii) in any campaign or expedition for which a campaign badge or service medal has been authorized; or (iv) for more than 180 consecutive days since January 31, 1955, but before October 15, 1976, excluding an initial period of active duty for training under the "six-month" reserve or national guard program;

(B) any person who entered the armed forces on or after October 15, 1976, and separated from the armed forces under honorable conditions, if such person was awarded a service medal or campaign badge;

(C) any person who separated from the armed forces under honorable conditions and has a disability certified by the United States department of veterans affairs as being service connected, has been issued the purple heart by the United States government or has been released from active service with a service-connected disability;

(D) the spouse of a veteran who has a 100% service connected disability as determined by the United States department of veteran affairs;

(E) the unremarried spouse of a veteran who died while, and as a result of, serving in armed forces; and

(F) the spouse of a prisoner of war, as defined by K.S.A. 75-4364, and amendments thereto.

Notwithstanding the foregoing, the term "veteran" shall not apply to any person who retired from the active military with the pay grade of 04 or above unless the person retired due to wounds received in combat or is a disabled veteran.

(2) "Competent" means a good faith determination that the person is likely to successfully meet the performance standards of the position based on what a reasonable person knowledgeable in the operation of the position would conclude from all information available at the time the decision is made. The basis for such determination shall include experience, training, education, licensure, certification and/or other factors determined by the decision making authority as appropriate to determine the applicant's overall qualification and ability to successfully meet the performance standards of the position. The decision making authority shall document such factors prior to the initiation of the selection process.

(3) "Disabled veteran" means a person who has served on active duty in the armed forces, has been separated therefrom under honorable conditions, and has established the present existence of a service-connected disability or is receiving compensation, disability retirement benefits, or pension because of a public statute administered by the department of veterans affairs or a military department.

(b) In grateful recognition of the services, sacrifices and sufferings of veterans who served in the army, navy, air force, coast guard or marine corps of the United States in world war I and world war II, and of persons who have served with the armed forces of the United States during the military, naval and air operations in Korea, Viet Nam, Iraq, Afghanistan or other places under the flags of the United States and the United Nations or under the flag of the United States alone, and have been honorably discharged therefrom, the provisions of this section are enacted.

(c) Veterans shall be preferred for initial employment and first promotion in the state government of Kansas, and in the counties and cities of this state, if competent to perform such services. Any veteran thus preferred shall not be disqualified from holding any position in such service on account of the veteran's age or by reason of any physical or mental disability as long as such age or disability does not render the veteran incompetent to perform the duties of the position applied for. When any veteran shall apply for appointment to any such position, place, or employment, the officer, board or person whose duty it is or may be to appoint a person to fill such place shall, if the applicant be a veteran of good reputation, and can competently perform the duties of the position applied for by the veteran, consider the veteran for appointment to such position, place, or employment. Within 30 days of filling a position, eligible veterans who have applied and are not hired shall be notified by certified mail or personal service that they are not being hired. Such notice also shall advise the veteran of any administrative appeal available.

(d) The provisions of this act shall not be applicable to any persons classed as conscientious objectors. The provisions of this act shall not be controlling over the provisions of any statute, county resolution or city ordinance relating to retirement, or termination on the basis of age, of employees of the state or any county or city. Whenever under any statute, county resolution or city ordinance retirement, or termination on the basis of age, of any employee is required at a certain age, or is optional with the employer at a certain age, such provisions of such statute, resolution or ordinance shall be controlling and shall not be limited by this section.

(e) All notices of job openings, if any, and all applications for employment, if any, by the state and any city or county in this state shall state that the job is subject to a veteran's preference, how the preference works and how veterans may take advantage of the preference and post a written statement of: (1) The qualifications for such position; (2) any preferred qualifications of such position; (3) performance standards for the position; and (4) the process that will be used for selection. A veteran, or a spouse who qualifies for the veteran's preference, desiring to use a veteran's preference shall provide the hiring authority with a copy of the veteran's DD214 form or the DD214 form of the veteran under which the spouse qualifies for the preference.

(f) Every employment center of the state and any city or county human resources department, if any, shall openly display documents that indicate that veterans are eligible for a preference in their initial employment and any first promotion within the employment of the governmental entity.

(g) Any veteran who alleges that a state agency, city or county has not provided the veterans preference as required by this act, after exhausting any available administrative remedy, may bring an action in the district court.

History: L. 1886, ch. 160, § 1; L. 1901, ch. 186, § 1; L. 1907, ch. 374, § 1; L. 1919, ch. 280, § 1; R.S. 1923, 73-201; L. 1945, ch. 301, § 1; L. 1951, ch. 429, § 1; L. 1970, ch. 306, § 1; L. 2008, ch. 99, § 1; July 1.

Cross References to Related Sections:

Applicable to certain Red Cross nurse corps members, see 73-220.

Law Review and Bar Journal References:

"Constitutional Law: Veterans' Preference Statute Survives Gender-Based Equal Protection Challenge," Carolyn A. Adams, 19 W.L.J. 365 (1980).

Attorney General's Opinions:

County commissioners; employment termination of county employees. 88-11.

Two statutes regarding hiring to be construed together, but if unable to do so, newer statute controls. 2004-4.

Statute applies to positions in public departments and upon public work of Kansas counties and cities. 2006-21.

CASE ANNOTATIONS

1. Qualifications within statute; city must appoint ex-soldier as engineer. Thompson v. Emporia, 9 Kan. App. 740, 60 P. 480.

2. Soldier or sailor must possess equal qualifications with other applicants. Dever v. Humphrey, 68 Kan. 759, 761, 75 P. 1037.

3. Character and extent of investigation by appointing power considered. Dever v. Humphrey, 68 Kan. 759, 761, 75 P. 1037.

4. Act of 1901 held constitutional and valid. Goodrich v. Mitchell, 68 Kan. 765, 75 P. 1034.

5. Act of 1907 not unconstitutional; when applicant entitled to office. The State v. Addison, 76 Kan. 699, 92 P. 581.

6. Appointing power to determine qualifications; when such determination final. The State v. Addison, 76 Kan. 699, 92 P. 581.

7. Applicant must possess qualifications essential to performance of duties. The State v. Addison, 76 Kan. 699, 92 P. 581.

8. Act mandatory upon officers of state, counties, cities and towns. The State v. Addison, 78 Kan. 172, 96 P. 66.

9. "Competence" of applicants; good faith required in determining qualifications. The State v. Addison, 78 Kan. 172, 96 P. 66.

10. Appointment of county assessor; appointment rendered valid by curative act. James v. Hayes, 79 Kan. 608, 100 P. 622.

11. Evidence held not to show bad faith of appointing officer. Dever v. Platt, 81 Kan. 200, 105 P. 445.

12. Mandamus to compel councilmen to confirm appointment made by mayor. Jury v. Adams, 81 Kan. 207, 106 P. 279.

13. Action to oust county assessor; bad faith not shown. The State v. McNeill, 83 Kan. 234, 109 P. 783.

14. No paramount right to office as between ex-soldiers and sailors. Campbell v. Sargent, 85 Kan. 590, 118 P. 71; Urmy v. Arnold, 86 Kan. 346, 119 P. 1126.

15. Cities under commission form of government; appointments from certified list. Goodrich v. O'Neill, 85 Kan. 595, 117 P. 1016.

16. Ex-soldiers must take examination under civil-service requirements. Goodrich v. O'Neill, 85 Kan. 595, 596, 117 P. 1016.

17. Fact applicant ex-soldier insufficient to compel appointment; must also be determined competent. Owens v. City of Coffeyville, 151 Kan. 263, 264, 267, 98 P.2d 415.

18. Since the veterans' preference law implies a cause of action to sue for damages, the three-year statute of limitations applies. Pecenka v. Alquest, 6 Kan. App. 2d 26, 27, 28, 29, 626 P.2d 802.

19. Section applies to internal promotions as well as to initial hiring (of military veterans). State ex rel Slusher v. City of Leavenworth, 279 Kan. 789, 112 P.3d 131 (2005).

20. Person claiming rights under state's veterans' preference statute required to exhaust administrative remedies before seeking judicial review. Little v. State, 34 Kan. App. 2d 557, 121 P.3d 990 (2005).

21. Hiring authority is vested with power to determine whether veteran possesses every quality essential to job performance; applying veteran's preference to promotions does not create due process or equal protection violation. State ex rel. Slusher v. City of Leavenworth, 285 Kan. 438, 439, 440, 441, 443, 444, 447, 451, 452, 172 P.3d 1154 (2007).


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