Steven C. Lewis Vs. Civil Service Commission Of The City Of Ames, Iowa And City Of Ames, Iowa ( 2010 )

IN THE SUPREME COURT OF IOWA
No. 08–0596
Filed January 8, 2010
STEVEN C. LEWIS,
Appellee,
vs.
CIVIL SERVICE COMMISSION OF THE
CITY OF AMES, IOWA AND CITY OF AMES,
IOWA,
Appellants.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Story County, Michael J.
Moon, Judge.
Appeal from judgment reversing civil service employee’s
termination. COURT OF APPEALS JUDGMENT VACATED; DISTRICT
COURT JUDGMENT REVERSED.
Judith K. Parks, Assistant City Attorney, Ames, for appellants.
Jay M. Smith and MacDonald Smith of Smith & McElwain Law
Office, Sioux City, for appellee.
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STREIT, Justice.
Steven Lewis, a former civil service employee, argues the City of
Ames arbitrarily terminated his employment. The city terminated Lewis
from the public works department because Lewis’s driver’s license was
suspended for six months after an arrest for operating while intoxicated.
We uphold the termination because Lewis failed to maintain his driver’s
license, which was required for his position.
I. Background Facts and Prior Proceedings.
Lewis was employed in the public works department, street
operations division, of the City of Ames as a maintenance worker. He
had worked for the public works department for eighteen years. On June
3, 2006, Lewis was arrested for operating while intoxicated (OWI).
Lewis’s license was suspended from September 8, 2006 until March 8,
2007.
Lewis told the director of the public works department of his OWI
arrest and later informed the director his license would be suspended for
six months. Maintenance workers were required to have a class “A” or
“B” commercial driver’s license (CDL). Representatives from the human
resources department, the city manager’s office, and the public works
department held several meetings to determine whether and how Lewis
should be disciplined. Eventually, the public works department alerted
Lewis in writing that the city was planning to terminate his employment,
told him the reason for this determination, and scheduled a pre-
disciplinary hearing. After the pre-disciplinary hearing, the city
terminated Lewis’s employment on September 7, 2006.
Lewis appealed his termination to the City of Ames Civil Service
Commission. The commission upheld the termination. Lewis then
appealed to the district court, which, after trial, overturned the
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termination and held it was arbitrary. The court of appeals affirmed the
district court and the commission sought further review.
II. Scope of Review.
This court reviews the district court’s decision de novo. Civil Serv.
Comm’n v. Johnson, 653 N.W.2d 533, 537 (Iowa 2002). We give weight to
the district court’s findings but are not bound by them. Dolan v. Civil
Serv. Comm’n, 634 N.W.2d 657, 662 (Iowa 2001). “[W]e independently
construe the factual record as a whole to determine if the [] discipline
was warranted.” City of Des Moines v. Civil Serv. Comm’n, 513 N.W.2d
746, 748 (Iowa 1994) (emphasis omitted).
III. Merits.
Iowa Code chapter 400 (2005) controls civil service employment
within the state. Iowa Code section 400.18 provides that civil service
employees cannot be terminated arbitrarily:
No person holding civil service rights as provided in
this chapter shall be removed, demoted, or suspended
arbitrarily, except 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 neglect of
duty, disobedience, misconduct, or failure to properly
perform the person’s duties.
Section 400.19 allows the city manager1 to “peremptorily suspend,
demote, or discharge a subordinate then under the person’s . . . direction
for neglect of duty, disobedience of orders, misconduct, or failure to
properly perform the subordinate’s duties.”
After an employee has been suspended, demoted, or discharged,
the employee may appeal to the civil service commission, which “may
affirm, modify, or reverse any case on its merits.” Iowa Code § 400.27.
1Section 400.19 refers to “[t]he person having the appointing power as provided
in this chapter.” Section 400.15 notes that in cities under a city manager plan, the city
manager has appointing power.
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Further appeal to the district court is then allowed for “trial de novo.” Id.
We have held the statutory language permitting a trial de novo allows
either party to introduce evidence that was not introduced before the
commission. Dolan, 634 N.W.2d at 662 (“[I]n a trial de novo, the court
hearing the case anew is permitted to receive evidence additional to that
presented to the commission.”) The trial de novo also “normally permit[s]
the district court to select [from] the same remedies that were available
before the commission.” Id. “Throughout the trial court and appellate
court proceedings, the commission has the burden of showing that the
discharge was statutorily permissible,” Smith v. Des Moines Civil Serv.
Comm’n, 561 N.W.2d 75, 77 (Iowa 1997), and we give no weight to or
presumption in favor of the commission’s determination. Sieg v. Civil
Serv. Comm’n, 342 N.W.2d 824, 828 (Iowa 1983). Instead, this court
“independently construe[s] the factual record as a whole to determine if
the [employee’s] discipline was warranted.” City of Des Moines, 513
N.W.2d at 748 (emphasis omitted). Here, the factual record consists of
testimony and exhibits entered before the district court.
It is improper for a civil service employee to be removed, demoted,
or suspended for reasons other than those found in sections 400.18 and
400.19: neglect of duty, disobedience, misconduct, or failure to properly
perform the person’s duties. See Smith, 561 N.W.2d at 79 (holding
employee’s failure of medical examination did not constitute inability to
perform job duties where exam was not part of a standardized personnel
policy and therefore discharge was inappropriate); Clay v. City of Cedar
Rapids, 577 N.W.2d 862, 865 (Iowa Ct. App. 1998) (holding employee’s
refusal to enter office of superior who had previously touched employee
inappropriately was not misconduct and therefore did not support
discharge). Similarly, this court has authority to reject sanctions that
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are disproportionate to the employee’s improper conduct and impose a
different disciplinary sanction. Dolan, 634 N.W.2d at 663 (“[W]e are also
entitled to modify the Commission’s decision on our de novo review if we
conclude suspension was the more appropriate sanction in this case.”).
The legislature did not define the terms “neglect of duty,
disobedience, misconduct, or failure to properly perform the person’s
duties.” Iowa Code §§ 400.18, 400.19. In determining whether an
employee’s actions fall within these categories, “we may look to the
[department’s] own rules and prescribed code of conduct as well as
existing precedent for guidance.” Dolan, 634 N.W.2d at 663. We have
referred to department policies in support of an employee’s termination.
Id. We have also relied on the lack of a standard policy in reversing a
termination decision. In re Fairbanks, 287 N.W.2d 579, 582 (Iowa 1980).
In Fairbanks, this court held an auto mechanic could not be terminated
because of his refusal to submit to a polygraph exam, noting that “such a
condition does not appear within the work description of an Auto
Mechanic I.” Id.
The city terminated Lewis based on its miscellaneous policy 20.3.
Miscellaneous policy 20.3, entitled “Maintenance of Credentials,” states:
The maintenance of qualifications is the responsibility of
every employee and is an essential function of all City jobs.
As a condition of continuing employment, an employee must
maintain all licenses or certification credentials specified in
the current class specification for the employee’s job, or
required by federal, state, or City law. An employee shall
notify the department head immediately in the event of loss
of a required credential. Failure to maintain required
credentials shall be considered grounds for termination of
employment.
The policy further addresses the appropriate discipline, based on a
variety of circumstances, for a failure to maintain credentials. Policy
20.3 states an employee who does not maintain a required credential
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“shall be terminated” where the activity requiring a credential is the “core
defining function of the job” or “[t]he department is unwilling to allow the
employee to continue to work because of cost, lost productivity or other
negative impact.” If the activity is not the defining function of the job,
the employee may be granted an unpaid leave of absence or be allowed to
continue working without performing that activity.
City officials discussed the appropriate response to Lewis’s failure
to maintain his driver’s license according to policy 20.3. These city
officials included the director of public works, the director of human
resources in the city manager’s office, the assistant city manager, the city
manager, the division head for the streets division, and the supervisor for
the streets division. These city employees testified they decided to
terminate Lewis because they concluded maintenance of a driver’s
license was a “core defining function” of his job position, and therefore,
termination was the appropriate response to Lewis’s failure to maintain a
license. The city relies on the job description of maintenance worker for
its determination that driving is a “core defining function of the job.” The
job description for maintenance worker frequently emphasizes the
driving involved in the position:
Examples of Essential Job Functions: Drives and operates
trucks, tractors, and other motorized equipment with various
attachments . . . .
Equipment Essential to the Job: A variety of motor vehicles
and heavy equipment including pick-up trucks, dump
trucks, aerial boom trucks, end loaders and backhoes . . . .
Licenses and Certificates: Must possess a valid type A or B
Commercial Driver’s License depending on assignment . . . .
The streets department has seven single-axle dump trucks, three
tandem-axle dump trucks, one road grader, one loader, three backhoes,
and two pickups with plows on them which employees are expected to
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operate. City officials who testified emphasized that Lewis’s license was
suspended during much of the winter season, which was problematic
because snow removal from the streets is a significant portion of the
maintenance worker position during that time of year. The city
considered whether there were any alternative duties within the public
works department that Lewis could perform during the time period in
which his license was revoked and did not find anything “suitable or
acceptable.”
The director of human resources testified the city officials also felt
termination was appropriate because the city policy provided for
employee termination if the department is “unwilling to allow the
employee to continue work because of cost, lost productivity or other
negative impact.” Under this provision, those involved did not believe it
was appropriate to displace another employee to accommodate Lewis.
Lewis argues there were a number of ways the city could have
accommodated his license revocation without terminating his
employment and therefore his termination was arbitrary. Lewis
introduced evidence that the city could have placed him on unpaid leave
during the period in which his license was revoked. At the time Lewis
was terminated, there were two maintenance worker positions available
and after his termination, a third became available. At the time of trial,
by which time Lewis’s license had been reinstated, the city continued to
list a maintenance worker position as available, demonstrating that the
city had not found a suitable replacement for Lewis’s position.
Lewis also argues the city could have continued to employ him
during his license suspension. First, he introduced evidence that the
number of snow days was limited and that other work did not require a
driver’s license, such as equipment maintenance, cleaning storm drains,
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or coal-patching on the roads where employees traveled in groups of two.
Second, he introduced evidence that pickup trucks were used by
maintenance workers for various tasks, including snow removal, that an
ignition interlock device could have been installed on one of the pickup
trucks, and that Lewis could have obtained a temporary permit to drive
vehicles with an ignition interlock device. Third, Lewis testified that he
was a long-term employee, having worked for the public works
department for eighteen years and had a good work record.
Based on our de novo review, we hold the city’s termination of
Lewis was warranted. In reaching this conclusion, we rely on the rule
that in determining whether dismissal is warranted, “we must remember
the primary objective of section 400.19 is to protect the public interest.”
Dolan, 634 N.W.2d at 664. Lewis’s failure to maintain his driver’s
license, a credential necessary to his position, fell within “neglect of duty,
disobedience, misconduct, or failure to properly perform the person’s
duties” as required for termination under Iowa Code sections 400.18 and
400.19. “Although the statute uses the language ‘failure to properly
perform the person’s duties,’ . . . a reasonable interpretation of that
language would authorize a discharge based on future inability to
adequately or safely perform one’s duties . . . .” Smith, 561 N.W.2d at 78
(quoting Iowa Code § 400.18). The job description for maintenance
workers requires the employee to maintain a driver’s license, and the city
policy provides that termination may result where employees do not
maintain the necessary credentials. Lewis’s failure to maintain his
driver’s license led to an inability to adequately perform those duties of
his maintenance-worker job that required driving. Given Lewis’s inability
to perform the job requirement of driving and his failure to maintain the
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necessary credentials required by city policy, even though only
temporarily, his termination was warranted.
IV. Conclusion.
The city’s decision to terminate Lewis for failure to maintain
required credentials was warranted under Iowa Code sections 400.18
and 400.19.
COURT OF APPEALS JUDGMENT VACATED; DISTRICT COURT
JUDGMENT REVERSED.