Sheriff Dennis Kucera And The Tama County Sheriff's Department, Tama County, Iowa Vs. Dino Baldazo And Teamsters Local 238

IN THE SUPREME COURT OF IOWA
No. 65 / 05-2138
Filed February 29, 2008
SHERIFF DENNIS KUCERA and the
TAMA COUNTY SHERIFF’S DEPARTMENT,
TAMA COUNTY, IOWA,
Appellees,
vs.
DINO BALDAZO and
TEAMSTERS LOCAL 238,
Appellants.
Appeal from the Iowa District Court for Tama County, Douglas S.
Russell, Judge.
Deputy sheriff appeals summary judgment ruling holding civil service
appeal is the exclusive remedy to challenge the termination of his
employment. AFFIRMED.
Scott D. Soldon and Yingtao Ho of Previant, Goldberg, Uelmen, Gratz,
Miller & Brueggeman S.C., Milwaukee, Wisconsin, and Paige Fiedler of
Fiedler & Newkirk, P.L.C., Urbandale, for appellants.
John P. Roehrick of Roehrick Law Firm, P.C., Des Moines, for
appellees.
2
HECHT, Justice.
This case requires us to decide whether a deputy county sheriff
holding a classified civil service position, who has been notified of the
termination of his employment, may challenge the termination under the
grievance and arbitration provisions of the collective bargaining agreement
between his union and the county, or whether he may seek relief only
through an appeal to the county’s civil service commission. We conclude
the termination of the deputy’s employment may be challenged only through
an appeal to the civil service commission under the circumstances of this
case. Accordingly, we affirm the district court’s decision.
I. Factual and Procedural Background.
On May 13, 2005, Dennis Kucera, the Tama County Sheriff,
terminated the employment of his deputy, Dino Baldazo.1 Baldazo was a
member of Teamsters Local 238, a union that was a party to a collective
bargaining agreement with Tama County.2 Baldazo filed a grievance under
the terms of the agreement on May 19, 2005, and the sheriff responded the
same day affirming the termination and denying the violation of the
agreement claimed by Baldazo.
On May 24, 2005, the union sent a written notice to the sheriff
informing him that his response to the grievance was unacceptable and
1A document dated the same day and signed by the sheriff and Baldazo suggests the
termination followed a confrontation between Baldazo and the Tama County Attorney on
May 12, 2005.
2The preamble paragraph of the agreement designates the “Tama County Sheriff’s
Office” as the employer, and the signature block of the document identifies the employer as
“Tama County Sheriff Office.” The sheriff and the Chairman of the Tama County Board of
Supervisors executed the agreement for the county. Unless otherwise indicated in this
opinion, in the interest of brevity and clarity our references to the sheriff shall also
constitute references to the county as the employer. The term of the bargaining agreement
ran from July 1, 2004, to June 30, 2005.
3
invoking the arbitration procedures under the collective bargaining
agreement.3 The sheriff and the union selected an arbitrator and agreed
upon a date for the arbitration of their dispute. The arbitration was never
held, however, because the sheriff subsequently concluded Baldazo’s
challenge to the termination was within the exclusive jurisdiction of the civil
service commission.
The sheriff filed a petition in equity against Baldazo and the union
requesting the district court to (1) stay the arbitration proceedings initiated
by Baldazo and the union under the terms of the collective bargaining
agreement and the Public Employment Relations Act codified in Iowa Code
chapter 20 (2005); (2) declare Baldazo’s remedy, if any, for termination of
his employment as a deputy sheriff must be pursued through a civil service
proceeding under Iowa Code chapter 341A rather than through arbitration;
and (3) declare Baldazo’s right to challenge the termination under chapter
341A expired when he failed to appeal to the civil service commission within
ten days after the termination of his employment.
Baldazo and the union filed an answer and counterclaim asserting
Baldazo’s statutory right to challenge the termination through an appeal to
the civil service commission is not preclusive of the right to pursue the
grievance process authorized by the collective bargaining agreement. The
pleading further asserted the sheriff should be ordered to participate in
arbitration under the agreement because he (1) violated provisions of the
Public Employment Relations Act as codified in Iowa Code chapter 20 and
the terms of the collective bargaining agreement when he refused to
arbitrate Baldazo’s grievance; (2) waived, by participating temporarily in the
3The collective bargaining agreement between the county and the union provided
Baldazo shall lose his seniority rights if he “is discharged and said discharge is not reversed
through the grievance procedure.”
4
grievance procedure, the claim that arbitration is unavailable to Baldazo
and the union under the collective bargaining agreement. The pleading filed
by Baldazo and the union also alleged the sheriff should be estopped, as a
consequence of his temporary participation in the grievance process and his
failure to object to Baldazo’s invocation of the grievance procedures under
the collective bargaining agreement until more than ten days after the
termination, from asserting (1) the civil service commission has exclusive
jurisdiction over Baldazo’s challenge to the termination; and (2) any future
civil service appeal by Baldazo and the union challenging the termination is
untimely because the sheriff did not object to the invocation of the grievance
procedures or contend the civil service commission has exclusive
jurisdiction of the matter until after the time for filing an appeal with the
civil service commission had expired.4
In its ruling granting the sheriff’s motion for summary judgment, the
district court concluded “civil service commissions [provide] the sole means
for deputy sheriffs to appeal disciplinary actions.” The ruling rejected
Baldazo’s waiver and estoppel claims. Baldazo and the union have
appealed.
II. Scope and Standards of Review.
“Review of a case in equity resulting in summary judgment is for
correction of errors at law.” Keokuk Junction Ry. v. IES Indus., 618 N.W.2d
352, 355 (Iowa 2000) (citing Iowa R. App. P. 4; Baratta v. Polk County Health
Servs., 588 N.W.2d 107, 109 (Iowa 1999)). Summary judgment is
appropriate when there are no genuine issues of material fact, and the
movant is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3);
4Any appeal to the civil service commission must be filed “within ten days after
presentation to the [employee] of the order of removal.” Iowa Code § 341A.12. Baldazo did
not file such an appeal.
5
Met-Coil Sys. Corp. v. Columbia Cas. Co., 524 N.W.2d 650, 653–54 (Iowa
1994). Where the parties agree that all material facts are undisputed, and
the case presents solely legal issues, summary judgment is the appropriate
remedy. Burton v. Univ. of Iowa Hosp. & Clinics, 566 N.W.2d 182, 185 (Iowa
1997).
III. Analysis.
In order to promote “harmonious and cooperative relationships
between government[s] and [their] employees,” the Public Employment
Relations Act (“the Act”) authorizes collective bargaining between public
employers and their employees, establishes procedures for the processing of
employee grievances, and authorizes binding arbitration of disputes arising
from claimed violations of collective bargaining agreements. Iowa Code
§ 20.1 (permitting public employees to organize and bargain collectively); id.
§ 20.18 (authorizing grievance procedures including binding arbitration for
the resolution of disputes, and allowing “public employees covered by civil
service” to follow either the grievance procedures provided in a collective
bargaining agreement, or in the event that grievance procedures are not
provided under the agreement, to follow grievance procedures under Iowa
Code chapter 8A (pertaining to state merit system employees) or Iowa Code
chapter 400 (pertaining to municipal civil service employees)).
The sheriff, a public employer, Baldazo, a public employee, and the
union exercised their statutory right to bargain and agreed, in relevant part:
Section 5.1. The parties agree that an orderly and expeditious
resolution of grievances is desirable. All matters of dispute
that may arise between the Employer and an employee or
employees regarding a violation of any expressed provision of
this Agreement shall be adjusted in accordance with the
following procedure:
Section 5.2. Informal: An employee shall discuss a complaint
or problem orally with the Sheriff or his designated
6
representative within a five (5) calendar day period following its
occurrence in an effort to resolve the problem in an informal
manner.
Section 5.3. Grievance Steps:
Step 1. If the oral discussion of the complaint or
problem fails to resolve the matter, the aggrieved employee
and/or the Union shall present a grievance in writing to the
Sheriff or his designated representative within five (5) calendar
days following the oral discussion. The grievance shall state
the nature of the grievance, [and] the specific clause o[r]
clauses violated. Within five (5) calendar days after this Step 1
meeting, the Sheriff or his designated representative will
answer the grievance in writing.
Step 2. Any grievance not settled in Step 1 of the
grievance procedure may be referred to arbitration, provided
the referral to arbitration is in writing to the other party and is
made within five (5) calendar days after the date of the Sheriff’s
or his designated representative’s answer given in Step 1.
Baldazo and the union assert this agreement conclusively establishes
their right to file a grievance to challenge the termination, and, upon
impasse, their right to demand arbitration of the dispute. The strength of
this assertion would be great indeed, and our resolution of this matter
simple, if the Act and the agreement were the only matters requiring our
consideration. But they are not. A second statute establishing a civil
service framework for the resolution of employment disputes between
employer-counties and their deputy sheriffs introduces ambiguity to the
analysis.5
Iowa Code chapter 341A prescribes a procedural framework for
removing, suspending or demoting deputies who are classified as civil
service employees:
No person in the classified civil service who has been
permanently appointed or inducted into civil service under
5Although certain deputies are expressly excluded from civil service coverage under
section 341A.7, it is undisputed that Baldazo was a civil service employee.
7
provisions of this chapter shall be removed, suspended, or
demoted except for cause, and only upon written accusation of
the county sheriff, which shall be served upon the accused,
and a duplicate filed with the commission. Any person so
removed, suspended, or reduced in rank or grade may, within
ten days after presentation to the person of the order of
removal, suspension or reduction, appeal to the commission
from such order.
Id. § 341A.12.6 It is undisputed that Baldazo was employed by Tama
County in a “classified civil service position.” Id. § 341A.7. The sheriff
maintains, and the district court concluded, chapter 341A constitutes the
exclusive remedy for deputies employed in civil service positions who wish
to challenge the termination of their employment.
A review of this court’s decisions addressing the interplay of statutes
authorizing dispute resolution through grievance and mediation procedures
and statutes providing for dispute resolution by civil service commissions is
instructive in the disposition of this appeal. In City of Des Moines v. Civil
Service Commission, 334 N.W.2d 133 (Iowa 1983), two city employees filed
appeals with a civil service commission challenging their indefinite
suspension from their jobs. 334 N.W.2d at 134. A hearing date was
scheduled by the commission, but before that hearing could be held, the
employees were fired from their employment. Id. Wishing also to seek the
commission’s review of the termination of their employment, the employees
sought on the day of the hearing to amend their notices of appeal
accordingly. Id. The city resisted the proposed amendment, contending
new notices of appeal were required to challenge the terminations, and
asserting the civil service commission lacked subject matter jurisdiction
6If the commission’s decision affirms the sheriff’s termination of the deputy’s
employment, the deputy may, within thirty days, appeal the commission’s decision to the
district court. The scope of judicial review of the commission’s decision is confined to a
determination of whether the commission’s order was “made in good faith and for cause.”
Iowa Code § 341A.12.
8
because the employees failed to file such notices within the time permitted
by the statute. Although the commission granted leave to amend the
employees’ notices of appeal, this court ultimately reversed the
commission’s ruling on the ground that the employees’ failure to file
separate notices of appeal challenging their terminations “divested the
commission of authority to hear the employees’ appeals as to that action by
the city.” Id. at 136.
Not to be deterred, the discharged employees next filed suit in district
court urging the court to compel the City of Des Moines to engage in
arbitration as to the merits of their discharges under a collective bargaining
agreement. Devine v. City of Des Moines, 366 N.W.2d 580, 581 (Iowa 1985).
That litigation was also unsuccessful, however, as this court affirmed a
summary judgment ruling in favor of the city. Id. at 583. We concluded
Iowa Code chapter 400, which establishes a civil service remedy for
municipal employees wishing to challenge the termination of their
employment, constituted “the sole means by which the propriety of a civil
service employee’s dismissal may be determined.” Id. at 582.
In the next legislative session following our decision in Devine, the
General Assembly amended Iowa Code section 20.18 to read:
Public employees of the state or public employees covered by
civil service shall follow either the grievance procedures
provided in a collective bargaining agreement, or in the event
that grievance procedures are not provided, shall follow
grievance procedures established pursuant to chapter 19A7 or
chapter 400, as applicable.
7Priorto 2004, public employees of the state not covered by a collective bargaining
agreement were subject to the grievance provisions of Iowa Code chapter 19A. See Iowa
Code § 19A.14(1) (2001). During a restructuring of government in 2003, the General
Assembly replaced the grievance procedures of chapter 19A with a more detailed grievance
procedure within the new merit employment system for state employees, codified at Iowa
Code chapter 8A, subdivision IV, and amended section 20.18 to reflect the change. 2003
Iowa Acts ch. 145, §§ 59–66, 145.
9
1986 Iowa Acts ch. 1118, § 1 (emphasis added to denote changes made by
the amendment).8 The amendment thus expressly included, within the
class of public employees who can collectively bargain for grievance
procedures, persons covered by civil service under Iowa Code chapter 400.
During the same legislative session, the General Assembly also amended
section 400.27, which prescribes the civil service commission’s jurisdiction
in matters involving municipal employees:
The civil service commission has jurisdiction to hear and
determine matters involving the rights of civil service
employees under this chapter, and may affirm, modify, or
reverse any case on its merits.
1986 Iowa Acts ch. 1138, § 9 (emphasis added to denote changes made by
the amendment).9 This amendment eliminated from the statute language
interpreted by this court in Devine as an expression of the legislature’s
intent to make the civil service remedy exclusive for municipal employees.
Thus, in the 1986 amendments to Iowa Code section 20.18 and section
400.27, the legislature expressed its clear intention that the civil service
remedies available to municipal employees under Iowa Code chapter 400
would henceforth constitute a default remedy to be pursued if grievance
8Prior to the 1986 amendment the second paragraph of section 20.18 read:
Public employees of the state shall follow either the grievance procedures
provided in a collective bargaining agreement, or in the event that no such
procedures are provided, shall follow grievance procedures established
pursuant to chapter 19A.
Iowa Code § 20.18 (1985).
9Prior to the 1986 amendment the first paragraph of section 400.27 read:
The civil service commission shall have jurisdiction to hear and determine
all matters involving the rights of civil service employees, and may affirm,
modify, or reverse any case on its merits.
Iowa Code § 400.27 (1985).
10
procedures were not available to them under a collective bargaining
agreement.
This court’s next opportunity to address the interplay between
remedies available to public employees under collective bargaining
agreements and remedies available through civil service appeals arose in
Jones v. Des Moines Civil Service Commission, 430 N.W.2d 106 (Iowa 1988).
In that case, Jones, a city fire fighter, filed a grievance challenging his
discharge for failure to achieve certification as an EMT. Jones, 430 N.W.2d
at 107. The city denied the grievance, claiming the civil service commission
had exclusive jurisdiction of the matter. Id. at 107. Jones filed a certiorari
action and, with his union, also filed an equity action to enforce his right to
challenge his discharge in a grievance proceeding. Id. The district court
granted Jones’s motions for summary judgment in both cases. Id. We
affirmed those rulings, concluding the legislature had overturned our ruling
in Devine by amending Iowa Code section 20.18 and Iowa Code section
400.27 to expressly allow terminated municipal civil service employees to
choose arbitration of their grievances rather than an appeal to the civil
service commission. Id. at 108.
Baldazo and the union contend the district court erred in failing to
extend to them the benefit of the rule announced in Jones. We disagree.
The legislative amendments that overturned our decision in Devine do not
compel the result urged by Baldazo and the union. Those amendments to
section 400.27 and section 20.18 granted city employees covered by civil
service the option to pursue grievance procedures under their collective
bargaining agreements rather than civil service remedies. The amendments
did not expressly grant this option to deputy sheriffs. While deputy sheriffs
arguably fall within the broad class of “public employees covered by civil
11
service” described in the amendment, that phrase must be read in
conjunction with the other provisions of the amendment which clearly
narrow the universe of public employees affected to those with alternative
grievance procedures in chapters 8A and 400. Neither chapter 8A nor
chapter 400 applies to deputy sheriffs, and they are therefore beyond the
reach of the amendment.
When the legislature amended Iowa Code section 20.18 and Iowa
Code section 400.27 in response to our decision in Devine, we believe it had
in mind the expansion of remedies available to city employees. This
conclusion is supported by the fact that the amendment to section 20.18
makes reference to chapter 400 pertaining to city employees, but makes no
reference to chapter 341A which specifically addresses the rights of deputy
sheriffs who are county employees. This fact is significant to our analysis
as we strive to discern legislative intent. When interpreting laws, we are
guided by the rule of “expressio unius est exclusio alterious.” “This rule
recognizes that ‘legislative intent is expressed by omission as well as by
inclusion, and the express mention of one thing implies the exclusion of
others not so mentioned.’ ” Meinders v. Dunkerton Cmty. Sch. Dist., 645
N.W.2d 632, 637 (Iowa 2002) (quoting Marcus v. Young, 538 N.W.2d 285,
289 (Iowa 1995)). Thus, the legislature’s reference in the amendment of
section 20.18 only to chapter 400 dealing with remedies available to city
employees suggests the legislature did not intend to expand the choice of
remedies available to deputy sheriffs.
Baldazo and the union contend in the alternative that even if chapter
341A constitutes the exclusive remedy for deputy sheriffs wishing to
challenge the termination of their employment, the sheriff should be
estopped, should Baldazo attempt to appeal his discharge to the civil service
12
commission, from claiming such an appeal is untimely under Iowa Code
section 341A.12.10 We conclude it would be inappropriate to decide this
issue because it would require us to issue an advisory opinion. Because
Baldazo has not filed an appeal with the civil service commission, there is
no justiciable controversy for us to decide. See Stream v. Gordy, 716
N.W.2d 187, 193 (Iowa 2006) (stating we will decline to issue advisory
opinions when we find the absence of a justiciable controversy).
IV. Conclusion.
We affirm the district court’s ruling granting summary judgment to
the appellees. In reaching our decision, we have carefully considered all of
the arguments and contentions raised by the parties. Those not addressed
in this opinion either lack merit or were not preserved for our review.
AFFIRMED.
10A deputy sheriff wishing to appeal his removal “may, within ten days after
presentation . . . of the order of removal, . . . appeal to the commission.” Iowa Code §
341A.12. Although Baldazo also raised a waiver argument before the district court, he has
not maintained the argument on appeal.