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HomeMy WebLinkAbout01/04/2011CIVIL SERVICE COMMISSION MEETING AGENDA 7:30 a.m., Tuesday, January 4, 2011 Carnegie Conference Room 620 Mulberry Street Waterloo, IA 50703 Roll Call Tim Luce John Blitsch Bonetta Culp Abraham Funchess (ex officio) Approval of Agenda for January 4, 2010 I. New Business A. Motion to Dismiss Appeal Request of W. Douglas Carter II. Unfinished Business A. Certification of Civil Service List for Instrumentation Control Technician — Waste Management Services — Open Exam B. Certification of Revised Civil Service List for Registrar — Culture & Arts — Open Exam III. Other Business None Adjournment Suzy Schares City Clerk lutton. Braun, Stuck S Hallman, P.LC. ATTORNEYS AT LAW RECEIVED DEC 13 2010 David J. Dutton Cheryl L Weber Chad A. Swanson Robert W. Braun Steven K. Daniels Lynn M. Smith" Thomas L. Smack John J. Hines Corey R. Lorenzen James R. Hellman James F. Kalkhoff Michael R:Young ,.. Michael A. McEnroe James H. Cook" *Also Admitted in California **Also Admitted in Minnesota ***Also E-mail: duttond r(D.wloolaw.com December 10, 2010 Suzy Shares, City Clerk Waterloo Civil Service Commission 715 Mulberry Street Waterloo, IA 50703 RE: W. Douglas Carter Dear Ms. Shares: Erin P. Lyons Fart J.Greene Laura L Folke'rts", Matthew M. Craft Enclosed with this letter you will find the Notice of Appeal of W. Douglas Carter regarding his demotion as Chief of the Waterloo Fire Rescue. This notice is given pursuant to Section 400.21 of the Iowa Code and asks for a hearing before the Civil Service Commission and reinstatement as Chief. You may notify me regarding the date and time set for his hearing. Very truly yours, BRAUN, STAACK & HELLMAN, P.L.C. David J. Dutton DJ D/Ike Enclosure cc: Mayor Buck Clark W. Douglas Carter I:\Lit\Carter. D61:glas\Ietter101Shares. D10.wpd 3151 Brockway Road P.O. Box 810 Waterloo, IA 50704 Tel: 319-234-4471 Fax: 319-234-8029 www.dbsh.com BEFORE THE CIVIL SERVICE COMMISSION OF THE CITY OF WATERLOO, IOWA IN THE MATTER OF THE ARBITRARY DEMOTION OF FIRE CHIEF W. DOUGLAS CARTER ) NOTICE OF APPEAL On December 3, 2010, I received a written notice from the Mayor that I had been demoted from my position as Chief of the Waterloo Fire Rescue. The demotion is both a violation of my two-year appointment to that position and the Civil Service Law of the State of Iowa. See Waterloo City Ordinance Article B. Fire Department Section 1-6B-2: Fire Chief and Iowa Code Chapter 400.18. The notice of demotion did not contain any facts or reasons upon which the action was based as are required by Iowa law and indeed there is no justification for the action. I hereby appeal the Mayor's arbitrary decision of demotion dated December 3, 2010, to the Waterloo Civil Service Commission pursuantto Sections 400.20 and 400.21 and ask for an opportunity to be heard before the Civil Service Commission. I also request that I be reinstated to the position of Fire Chief with full reimbursement of any lost salary and benefits. Respectfully submitted, W. Douglas Carter BY: I1Lit\Carter.Douglas\PleadingsWppeal. not.wpd DUTTON, BRAUN, STAACK & HELLMAN, P.L.C. Attorneys for Fire Chief as Carter David J. tto , ATE 002192 3151 Bro. '•ad P.O. Box 810 Waterloo, IA 50704 (319) 234-4471 (319) 234-8029 FAX Email: duttond(a�wloolaw.com BEFORE THE CIVIL SERVICE COMMISSION OF THE CITY OF WATEkLEW4tAVA IN THE MATTER OF W. DOUGLAS CARTER, Appellant. CITY OF WATERlAgEC 20 fjlr 10 30 MOTION TO DISMISS Ci; , CLERK AUDITOR'S OFFICE ICE COMES NOW the City of Waterloo, Iowa, by counsel, and in support of this Motion to Dismiss states as follows: I. The Civil Service Commission does not have jurisdiction over this matter. W. Douglas Carter has requested a hearing before the Civil Service Commission to determine whether he was arbitrarily demoted. Carter purportedly asks for this hearing based upon Iowa Code §§ 400.18, 400.20 and 400.21, which provide that an employee with civil service rights may only be removed after a hearing by a majority vote of the civil service commission, that an employee with civil service rights may appeal a demotion to the civil service commission, and that notice of the appeal must be given to the non -appealing party, respectively. However, because Carter was removed from his position as fire chief (the principal officer of the fire department), he does not have civil service rights. Iowa Code § 400.6 states that Chapter 400 does not apply to the head of a city department or division. Nonetheless, a fire chief does have limited civil service rights with respect to eligibility for appointment as chief and preservation of seniority while serving as chief. See Iowa Code §§ 400.13, 400.14. However, § 400.14 is explicit that any civil service rights the person may have do not apply to the right to retain the position of chief. Thus, if the fire chief is demoted or removed from the office of chief, he has no civil service rights that bear on that action. Because Carter does not have civil service status regarding his removal as chief, the Civil Service Commission has no jurisdiction under Iowa law to hear Carter's appeal. This result has been upheld in the case of LaPeters v. City of Cedar Rapids, 263 N.W.2d 734 (Iowa 1978), a copy of which is attached. In LaPeters, a fired police chief brought an action claiming that he could only be discharged through civil service procedures. Id. at 735. The court held that the Iowa statutes are clear, and that the police chief was not entitled to removal through civil service procedures. Id. at 736. The court noted that while police chiefs are appointed in accordance with civil service procedures under Iowa Code § 400.13, and that under § 400.14 chiefs may keep civil service rights they already have, chiefs do notacquire any civil service right upon which they may retain the position of chief. Id. The court held that this was consistent with § 400.6 which generally excepts police chiefs from civil service status. Id. Removal procedures dictated in the civil service chapter are applicable only to persons who hold civil service status for retention purposes, and a civil service commission has jurisdiction only of those cases. Id. (emphasis added). Therefore, the commission lacked jurisdiction to hear the police chiefs appeal. Id. While the LaPeters case involves a police chief rather than a fire chief, under the Iowa civil service statutes, the offices are accorded the same treatment, as every section which references one also references the other. See, e.g., Iowa Code §§ 400.6, 400.13, 400.14. Therefore, as fire chief, Carter did not have civil service status governing his retention of that office, so the Civil Service Commission does not have jurisdiction to hear an appeal on his removal as chief. WHEREFORE, the City of Waterloo prays that the Civil Service Commission dismiss Carter's Notice of Appeal for lack of jurisdiction. 2 CC: David J. Dutton Attorney for Appellant Respectfully submitted, CLARK, BUTLER, WALSH & HAMANN Attorneys for City of Waterloo 315 East 5th Street P.O. Box 596 Waterloo, IA 50704 (319) 234-5701 By: ��� j � J t C C t1.c � � tA`/ 3 Christopher S. Wendland No. AT0008443 734 Iowa 263 NORTH WESTERN REPORTER, 2d SERIES could not show the jury misunderstood the instructions. This would involve jurors' statements of a subjective nature as to what influenced the verdict. The final decision is Parker v. Tuttle, 260 N.W.2d 843, 849 (Iowa). The jury had a pamphlet entitled "Trial Juror's Manual" which contained a paragraph on resolving differing viewpoints. We reversed the judgment on another ground, remarking re- garding this ground that "we trust the problem will not recur on retrial." [6, 7] We have reexamined the jurors' affidavits before us. From our overview of the authorities cited by the parties and the results of our own research, we conclude that on this record we cannot say the trial court abused its discretion in refusing a new trial. We thus uphold the court's rul- ing. AFFIRMED. Wallace N. LaPETERS, Appellant, v. The CITY OF CEDAR RAPIDS, Iowa, a Municipal Corporation, Appellee. No. 59974. Supreme Court of Iowa. March 22, 1978. Discharged city police chief brought de- claratory judgment action requesting an adjudication that he was subject to dis- charge only through civil service procedures and that city public safety commissioner could not discharge him without city council concurrence. The Linn District Court, An- sel J. Chapman, J., entered a judgment upholding police chief's discharge, and he appealed. The Supreme Court, McCormick, J., held that: (1) police chief could be dis- charged without resort to civil service pro- cedures and (2) police chief could be fired by safety commissioner without city council concurrence even though council concur- rence was required for his initial appoint- ment. Affirmed. 1. Officers cs=,69, 69.12, 69.13 Provisions of civil service law relating to removal, demotion or suspension of em- ployees are applicable only to persons hold- ing civil service rights. I.C.A. § 400.18. 2. Officers 4=18 While no one has a constitutional right to public employment, state may not regu- late it arbitrarily. 3. Officers 0=,71 An appointing power has removal au- thority with respect to public employee un- less law provides otherwise. 4. Officers 4=11, 69 Civil service procedures may be made applicable to selection of public employee or for other purposes but inapplicable to dis- charge, depending on effect of applicable statutes. I.C.A. § 400.18. 5. Officers ,8=,69 Civil service removal procedures are applicable only to persons who hold civil service status for retention purposes. I.C.A. § 400.18. 6. Officers 0=72(1) Civil service commission has jurisdic- tion only as to removal of persons who hold civil service status for retention purposes. I.C.A. §§ 400.18-400.27. 7. Municipal Corporations z=,.182 In that city police chief did not have civil service right to retain his position, police chief could be discharged without resort to civil service procedures. I.C.A. §§ 400.6, 400.13, 400.14, 400.18. 8. Municipal Corporations cs;:=182 Discharge of city police chief was gov- erned by statute providing that all persons pro - fired ,uncil ncur- Joint- sting em- Zold- 0.18. ight egu au- un- ade e or dis- tble are 3es. lic- old ;es. we on, iut .A. ns LaPETERS v. CITY OF CEDAR RAPIDS Iowa 735 Cite as 263 N.W.2d 734 appointed to city office may be removed by officer or body making the appointment. I.C.A. § 372.15. 9. Municipal Corporations 0=182 City public safety commissioner who was statutorily required to have city council concurrence in initial appointment of city police chief was not required to obtain council concurrence before discharging city police chief. I.C.A. §§ 372.15, 400.13. 10. Officers c3=6 Requirement of confirmation of an ini- tial appointment to public office does not make the confirming body the appointing power. Robert C. Nelson and R. M. Fassler, Ce- dar Rapids, for appellant. Linda Thompson, Asst. City Atty., Cedar Rapids, for appellee. Considered by MOORE, C. J., and REES, UHLENHOPP, HARRIS and McCOR- MICK, JJ. McCORMICK, Justice. This appeal concerns procedures for dis- charging a police chief. On August 23, 1976, the public safety commissioner of de- fendant City of Cedar Rapids notified plain- tiff Wallace N. LaPeters he was fired as police chief. LaPeters attempted an appeal to the City civil service commission. The commission informed him it was without jurisdiction. He then brought a declaratory judgment action in which he requested an adjudication that he was subject to dis- charge only through civil service procedures and that, in any event, the safety commis- sioner could not fire him without city coun- cil concurrence. After trial, the trial court held against him on both contentions. We affirm: The questions here are whether LaPeters could be discharged without resort to civil service procedures and, if so, whether he could be fired by the safety commissioner without city council concurrence. Resolu- tion of these questions requires construction of relevant statutes. The pertinent statutes have not been changed in any respect material here since LaPeters was appointed May 8, 1974. How- ever, the Code chapter on civil service which was chapter 365 in the 1973 Code appears as chapter 400 in the 1977 Code. Chiefs of police are expressly excepted from general applicability of the civil ser- vice law. § 400.6, The Code. Nevertheless, certain provisions of civil service law are specifically made applicable to them. §§ 400.13, 400.14, The Code. Pursuant to § 400.13, the police chief is to be appointed from a civil service eligibility list which is comprised of all persons with requisite qual- ifications, whether employed by the city or not, who pass a civil service examination for the position. For a city like Cedar Rapids with a commission form of govern- ment the statute provides, "the superin- tendent of public safety, with the approval of the city council, shall appoint * * * he chief of the police department." [1] The civil service status of a chief so ppointed is specifically addressed in § 400: 4, as follows: A police officer under civil service may be appointed chief of police * * without losing his civil service status, and shall retain, while holding the office of chief, the same civil service rights he may have had immediately previous to his ap- pointment as chief, but nothing herein shall be deemed to extend to such individ- ual any civil service right upon which he may retain the position of chief. (Em- phasis supplied). rovisions of civil service law relating to emoval, demotion or suspension of employ- es are applicable only to "person holding vil service rights as provided in this chap- r." § 400.18, The Code. Familiar principles of statutory construe - on are applicable. Our objective is to certain legislative intent. [2-4] We start from the premise that bile no one has a constitutional right to ublic employment the state may not regu- te it arbitrarily. Redmond v. Carter, 247 736 Iowa 263 NORTH WESTERN REPORTER, 2d SERIES N.W.2d 268, 272 (Iowa 1976). Nevertheless, an appointing power has removal authority unless the law provides otherwise. See Healdsburg Police Officers Ass'n v. Healds- burg, 57 Ca1.App.3d 444, 129 Ca1.Rptr. 216 (1976); 4 McQuillin, Municipal Corpora- tions, § 12.229b (1968). Similarly, civil ser- vice procedures may be made applicable to selection of a public employee, or for other purposes, but inapplicable to discharge. The issue is dependent on the effect of applicable statutes. 0. Field, Civil Service Law, p. 18, 67 (1939). [5-7] Here the statutes are clear. A police chief is appointed in accordance with civil service p_rocedures. § 400.13, The Code. If he is appointed from the ranks he does not lose the civil service rights he already has. However, he does not acquire "any civil service right upon which he may retain the position of chief." § 400.14. This is consistent with the general provision excepting the police chief from civil service status. § 400.6. Removal procedures dic- tated in the civil service chapter are appli- cable only to persons who hold civil service Status for retention purposes. § 400.18. The civil service commission has jurisdiction only of those cases. §§ 400.18-400.27. Be- cause LaPeters did not have a civil service right to retain his position as chief, the civil service commission lacked jurisdiction of his case, and the trial court was right in so holding. LaPeters relies on this court's decision in Dennis v. Bennet, 258 Iowa 664, 140 N.W.2d 123 (1966). The question there was wheth- er an appointing power was bound by the veteran's preference law in the selection of a fire chief. The court noted, as we do with respect to the position of police chief under present statutes, that the fire chief was to be selected by civil service procedures. No issue relating to discharge was presented. Furthermore, the civil service status of a fire chief in relation to discharge was not defined then as it is now in § 400.14, The Code. See § 365.14, The Code, 1966. The Dennis case does not support LaPeters' po- sition here. He also asserts § 400.6, which makes the civil service laws generally inapplicable to police chiefs, is an inadvertent carryover from prior legislation which should, in ef- fect, be read out of the chapter. Cf. Red- mond v. Carter, supra, 247 N.W.2d 274-279 (special concurrence). We find it unneces- sary to decide the merits of that assertion because our holding is not dependent on § 400.6. It rests instead on the specific provision of § 400.14 which expressly de- prives a police chief of any civil service right in relation to removal. [8] We hold that the firing of LaPeters was governed by § 372.15, The Code. It provides: Except as otherwise provided by state or city law, all persons appointed to city office may be removed by the officer or body making the appointment, but every such removal shall be by written order. The order shall give the reasons, be filed in the office of the city clerk, and a copy shall be sent by certified mail to the person removed who, upon request filed with the clerk within thirty days of the date of mailing the copy, shall be granted a public hearing before the council on all issues connected with the removal. The hearing shall be held within thirty days of the date the request is filed, unless the person removed requests a later date. This is the statute which the City's public safety commissioner followed in this case. In addition to giving LaPeters written no- tice of his firing, the commissioner filed a written order stating his reasons with the city clerk, a copy of which was sent to LaPeters by certified mail. LaPeters did not request a hearing from the council. [9]' Our holding on LaPeters' first con- tention leaves only the question whether the safety commissioner, required by § 400.- 13 to have council concurrence in the initial appointment, was required to obtain council concurrence before firing him. Under the terms of § 372.15, the appointee "may be removed by the officer or body making the appointment * * *." Council concur- rence is not required. s the 'e to over t ef- Red- -279 ces- tion on cific de - .vice :ters It tate city r or Tery der. 'filed :opy the iled the ited all The ays the ate. blic ase. no- da the to did icil. on - her tial the be the ur- STATE v. STIDOLPH Iowa 737 Cite as 263 N.W.2d 737 [10] This is in accord with the general principle that a requirement of confirma- tion of initial appointment does not make the confirming body the appointing power. 63 Am.Jur.2d, Public Officers and Employ- ees, § 110 at 697 ("A confirmation of an appointment to a public office is to be dis- tinguished from the appointment itself, for in confirming the appointment the * * * body does not in any sense choose the ap- pointee"). See 4 McQuillin, supra, § 12.233c at 238 ("the fact that appointments of per- sons to office require the approval or con- firmation of another officer or tribunal does not mean that the latter must concur when the power of removal is exercised by the appointing authority"). The trial court was correct in upholding the procedures used in discharging LaPet- ers. AFFIRMED. STATE of Iowa, Appellee, v. Robert Alan STIDOLPH, Appellant. No. 59557. Supreme Court of Iowa. March 22, 1978. Rehearing Denied May 15, 1978. Defendant was convicted in the Polk District Court, A. B. Crouch, J., of deliver- ing marijuana as a nonaccommodation of- fender. Defendant appealed, and the Su- preme Court, Uhlenhopp, J., held that: (1) where, after the jury was selected and sworn, defendant changed his plea to guilty of delivering the marijuana and demanded a new jury panel to try the accommodation issue, no abuse of discretion or deprivation of defendant's fair trial rights resulted from the trial court's denial of defendant's request for a new jury panel to try the accommodation question, and (2) evidence in the record abundantly disapproved an accommodation motive. Affirmed. 1. Drugs and Narcotics c3)133 Jury o=,31(11) Where, after jury was selected and sworn to hear charge that defendant deliv- ered marijuana as a nonaccommodation of- fender, defendant changed his plea to guilty of delivering the marijuana and de- manded that another jury be selected to try the accommodation issue, no abuse of dis- cretion or deprivation of defendant's consti- tutional right to a fair and impartial jury resulted from trial court's denial of defend- ant's request for a new jury to try the accommodation issue. I.C.A. § 204.410. 2. Drugs and Narcotics e=.119 In order to convict as a nonaccommoda- tion offender under the Code of 1975, the state is not required to prove intent to profit but need only disprove that the deliv- ery was to accommodate. I.C.A. § 204.410. 3. Drugs and Narcotics e-119 In prosecution for delivering marijuana as a nonaccommodation offender, there was substantial evidence that defendant made the deliveries for profit and not as an ac- commodation. I.C.A. § 204.410. Marks, Flagg, Hockett & Marks by Judd Golden, Des Moines, for appellant. Richard C. Turner, Atty. Gen., Faison Sessoms, Asst. Atty. Gen., and Dan John- ston, Polk County Atty., for appellee. Considered by MOORE, C. J., and REES, UHLENHOPP, HARRIS, and McCOR- MICK, JJ. UHLENHOPP, Justice. This appeal involves two questions which arose in a prosecution of defendant Robert Alan Stidolph, Jr. for delivering marijuana as a nonaccommodation offender. Dutton, Irann, Staack &'oilman, P.L.C. ATTOONEYS AT LAW David J. Dutton Robert W. Braun Thomas L. Staack James R. Hellman Michael A. McEnroe Civil Service Commission ATTN: Suzy Schares, City Clerk 715 Mulberry Street Waterloo, IA 50703 Cheryl L. Weber Steven K. Daniels John J. Hines James F. Kalkhoff James H. Cook* Chad A. Swanson Lynn M. Smith" Corey R. Lorenzen Michael R. Young*** *Also Admitted in Califomia **Also Admitted in Minnesota E-mail: duttondawloolaw.com December 23, 2010 RE: Appeal of W. Douglas Carter Dear Ms Schares: Erin P. Lyons Farl J. Greene Laura L. Folkerts Matthew M. Craft *Also Admitted in Illinois Enclosed please find Appellant's Resistance to City of Waterloo's Motion to Dismiss in the above -captioned matter. Very truly yours, DUTTON, BRAUN, STAACK & HELLMAN, P.L.C. David J. Dutton DJD/Ike Enclosure cc: Timothy J. Luce Christopher S. Wendland W. Douglas Carter 1:1Lit\Carter: DouglasUetter101Shares. D23.wpd 3151 Brockway Road P.O. Box 810 Waterloo, IA 50704 Tel: 319-234-4471 Fax: 319-234-8029 www.dbsh.com BEFORE THE CIVIL SERVICE COMMISSION OF THE CITY OF WATERLOO, IOWA IN THE MATTER OF W. DOUGLAS CARTER, Appellant. RESISTANCE TO CITY OF WATERLOO'S MOTION TO DISMISS COMES NOW the Appellant, W. Douglas Carter, and for his Resistance to the Motion to Dismiss filed by the City of Waterloo, Iowa, and states: I. The Civil Service Commission does have jurisdiction over this matter. Chapter 400.20 reads as follows: "400.20 Appeal. The suspension, demotion or discharge of a person holding civil service rights may be appealed to the Civil Service Commission within 14 calendar days after the suspension, demotion, or discharge." Douglas Carter is appealing his demotion from Chief to Captain under the provisions of Section 400.18, the Code, which provides: "No person holding civil service rights as provided in this chapter shall be removed, demoted, or suspended arbitrarily accept as otherwise provided in this chapter, but may be removed, demoted, or suspended after a hearing by a majority vote of the Civil Service Commission for neglected duty, disobedience, misconduct, or failure to properly perform the person's duties." Douglas Carter is a civil service employee pursuant to Chapter 400.14, the Code. We admit that the Civil Service Commission does not have authority to grant Captain Carter the position of Chief. Section 400.14. However, the Commission does have jurisdiction to make a determination as to whether his demotion was arbitrary and that is the relief which he seeks as a result of his appeal. See City of Des Moines v.. Civil Service Commission, 540 N.W.2d 52 (Iowa 1995). "The City further contends that the Commission's jurisdiction is limited to determining whether Smith was, in fact, discharged for failure to meet the Fire Department's cardio-pulmonary fitness standard. The City argues the Commission does not have jurisdiction to determine whether the City's decision, that Smith did not meet the requirements of the standard, was arbitrary. We disagree with the City and conclude that a discharged employee, such as Smith, can challenge, as arbitrary, a civil service employer's decision that he or she failed to meet the particular employment qualification or standard. We believe the purpose of the Commission is to make such decisions." WHEREFORE, the Appellant, W. Douglas Carter, resists the City's Motion to Dismiss and asks that the matter proceed to hearing pursuant to the rules in Chapter 400, the Code. COPY TO: Christopher S. Wendland Clark, Butler, Walsh & Hamann 315 East 5th Street P.O. Box 596 Waterloo, IA 50704 IiLMCarter eouglesfPlecdings.Appeal.nof.wpd 2 BY: Respectfully submitted, DUTTON, BRAUN, STAACK &+1ELLMAN, P.L.C. Attorneys for Appellant David(J. Dutton; AT0002192 3151 Brockway Road P.O. Box 810 Waterloo, IA 50704 (319) 234-4471 (319) 234-8029 FAX Email: duttond(wloolaw.com PROOF OF SERVICE The undersigned certifies that the foregoing instrument was served upon all parties to the above cause to each of the attorneys of record herein at their respective addresses disclosed on the at pleadings, on - By U.S. Mall 0 FAX ❑ Hand Delivered 0 UPS 0 Federal Express 0 Other Signature