Bret Vance v. City of Laramie

IN THE SUPREME COURT, STATE OF WYOMING
2016 WY 106
OCTOBER TERM, A.D. 2016
November 7, 2016
BRET VANCE,
Appellant
(Petitioner),
v. S-16-0057
CITY OF LARAMIE,
Appellee
(Respondent).
Appeal from the District Court of Albany County
The Honorable Jeffrey A. Donnell, Judge
Representing Appellant/Petitioner:
Charles F. Pelkey of Neubauer, Pelkey, and Goldfinger, LLP; A. Joe Hageman,
Laramie, Wyoming. Argument by Mr. Hageman.
Representing Appellee/Respondent:
Amanda F. Esch and Shaina A. Case of Davis & Cannon, LLP, Cheyenne,
Wyoming. Argument by Ms. Esch.
Before BURKE, C.J., and HILL, DAVIS, KAUTZ, JJ., and CAMPBELL, D.J.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KAUTZ, Justice.
[¶1] Appellee/Respondent City of Laramie (City) discharged Appellant/Petitioner Bret
Vance from his position as a firefighter after random breathalyzer tests performed while
he was on duty detected alcohol in his system. He appealed the discharge, and after an
evidentiary hearing, the Civil Service Commission (Commission) reduced his discipline
from discharge to a suspension (Commission Decision #1). Both the City and Mr. Vance
petitioned the district court for review of the Commission’s decision. The district court
reversed, concluding the Commission had applied the wrong legal standard and remanded
the matter for further agency proceedings.
[¶2] Upon remand, the Commission considered the same evidentiary record and ruled
in favor of Mr. Vance, finding that the breathalyzer tests were invalid (Commission
Decision #2). The City petitioned the district court for review, and it again reversed and
remanded. The court concluded the record and the law did not support the Commission’s
determination that the tests were invalid.
[¶3] Considering the matter for the third time, the Commission consented to Mr.
Vance’s discharge (Commission Decision #3). Mr. Vance petitioned the district court for
review, but it dismissed his petition. Mr. Vance appealed to this Court, and we requested
additional briefing on whether the district court had jurisdiction to consider the City’s
earlier petitions for review of the Commission decisions.
[¶4] We conclude the legislature did not grant cities the right to judicial review of
commission decisions refusing to consent to employee discharges. Consequently, the
district court did not have subject matter jurisdiction to consider the City’s petition for
review of Commission Decision #2. Because the district court lacked jurisdiction to
review the Commission’s decision, it was final. We dismiss this appeal.
ISSUE
[¶5] The dispositive issue in this case is: Whether the district court had subject matter
jurisdiction to consider the City’s petition for review of Commission Decision #2, in
which it refused to consent to Mr. Vance’s discharge.
FACTS
[¶6] On December 5, 2012, Mr. Vance reported for work as a shift commander for the
City’s fire department and was notified that he had been randomly selected for alcohol
detection testing. Two breathalyzer tests performed minutes apart detected a low level of
alcohol in his blood stream. Mr. Vance had previously been disciplined for testing
positive for cocaine in 2010. Under the City’s policies, a second drug or alcohol
violation could result in discipline up to and including termination of employment. The
1
City issued a disciplinary order discharging Mr. Vance from the fire department, and he
requested a hearing before the Commission.
[¶7] The Commission held an evidentiary hearing, applied the civil service rules and
the City’s personnel rules, and determined in Commission Decision #1 that the reason for
the City’s discipline decision was “partially justified.” It reduced the disciplinary action
from discharge to a two-month unpaid suspension. The City petitioned the district court
for review, and Mr. Vance cross-petitioned. The district court reversed Commission
Decision #1, concluding the legal standard applied by the Commission did not comply
with Wyo. Stat. Ann. § 15-5-112(b) (LexisNexis 2015), which required the Commission
to determine whether the reason for discharge was “sufficient and established” and did
not authorize it to determine that the reason was “partially justified.” The district court
remanded the matter to the Commission for application of the correct standard.
[¶8] The Commission considered the same evidentiary record and, in Commission
Decision #2, refused to consent to Mr. Vance’s discharge. It ruled that the City’s reason
for discharging him was not sufficient and established because the breathalyzer tests did
not comply with Department of Transportation (DOT) standards. The City petitioned the
district court for review, and the court again reversed and remanded. The district court
concluded the Commission’s determination that the breathalyzer test results were invalid
was not supported by the law or the evidence. The district court ordered the Commission
to accept and consider the breathalyzer test results on remand. After deliberating the
matter for a third time and in accordance with the district court’s directive that it accept
and consider the breathalyzer test results, the Commission ruled in Commission Decision
#3 that the City properly discharged Mr. Vance because he violated the policy that
prohibits employees from being on duty with “any detectable” blood alcohol
concentration.
[¶9] Mr. Vance filed a petition for review, and the district court dismissed his petition
because, instead of raising issues about the Commission’s most recent decision, Mr.
Vance challenged the district court’s previous order requiring the Commission to accept
and consider the breathalyzer results. Mr. Vance appealed to this Court. We requested
additional briefing on whether the district court had jurisdiction to consider the City’s
petitions for review of Commission Decisions #1 and #2.
STANDARD OF REVIEW
[¶10] We raised, on our own motion, the issue of whether the district court had
jurisdiction to consider the City’s petitions for review. “A challenge to subject matter
jurisdiction may be asserted at any time by any interested party or sua sponte by the court
at the trial or appellate level.” Ahearn v. Anderson–Bishop P’ship, 946 P.2d 417, 422
(Wyo. 1997). See also SAS v. Dep’t of Family Servs. (In re AGS), 2014 WY 143, ¶ 15,
337 P.3d 470, 476 (Wyo. 2014). If the district court did not have subject matter
2
jurisdiction over the City’s petitions for review, we also lack jurisdiction. Edsall v.
Moore, 2016 WY 71, ¶ 10, 375 P.2d 799, 801 (Wyo. 2016), citing Platte Dev. Co. v.
State, Envtl. Quality Council, 966 P.2d 972, 974 (Wyo. 1998). The existence of subject
matter jurisdiction is a question of law, subject to de novo review. Poignee v. State, 2016
WY 42, ¶ 8, 369 P.3d 516, 518 (Wyo. 2016); Harmon v. Star Valley Med. Ctr., 2014 WY
90, ¶ 14, 331 P.3d 1174, 1178 (Wyo. 2014) (citations omitted).
DISCUSSION
A. Statutory Right to Judicial Review of Commission Decisions
[¶11] “‘The right to judicial review of administrative decisions is entirely statutory.’”
Casper Iron & Metal, Inc. v. Unemployment Ins. Comm’n of Dep’t of Employment, 845
P.2d 387, 391 (Wyo. 1993), quoting Sellers v. Employment Sec. Comm’n, 760 P.2d 394,
395 (Wyo. 1988). See also Lyles v. State ex rel. Div. of Workers’ Comp., 957 P.2d 843,
846 (Wyo. 1998). Stated another way, judicial review of an administrative decision is
not available unless made so by statute. Industrial Siting Council v. Chicago and North
Western Transp. Co., 660 P.2d 776, 778 (Wyo. 1983). To determine whether the district
court had jurisdiction over the City’s petition for review, we must interpret the relevant
statutes. Statutory interpretation is a question of law subject to de novo review.
Albertson’s, Inc. v. City of Sheridan, 2001 WY 98, ¶ 7, 33 P.3d 161, 164 (Wyo. 2001);
Anderson Highway Signs and Supply, Inc. v. Close, 6 P.3d 123, 124 (Wyo. 2000).
[¶12] Our focus, when interpreting statutes, is on determining the legislature’s intent.
Generally, we look to the “‘ordinary and obvious meaning” of the statutory language.
Albertson’s, ¶ 7, 33 P.3d at 164, quoting Kirbens v. Wyoming State Board of Medicine,
992 P.2d 1056, 1060 (Wyo. 1999). In ascertaining the meaning of a given law, we
consider and construe in harmony all statutes relating to the same subject or having the
same general purpose. Thunderbasin Land, Livestock & Inv. Co. v. Laramie County, 5
P.3d 774, 779 (Wyo. 2000).
[¶13] The Wyoming Administrative Procedure Act (WAPA), §§ 16-3-101 through 115
(LexisNexis 2015) governs proceedings involving administrative agencies. Section 16-3-
114(a), which generally follows the Model State Administrative Procedures Act, provides
for judicial review of agency action:
(a) Subject to the requirement that administrative
remedies be exhausted and in the absence of any statutory
or common-law provision precluding or limiting judicial
review, any person aggrieved or adversely affected in fact
by a final decision of an agency in a contested case, or by
other agency action or inaction, or any person affected in fact
by a rule adopted by an agency, is entitled to judicial review
3
in the district court . . . .
Section 16-3-114(a) (emphasis added); Model State Administrative Proc. Act 2010 §
501(b). Under § 16-3-114(a), judicial review of an administrative decision is available
unless it is precluded or limited by statute or common law. By specifically referencing
statutory limitation of review, the WAPA provides broader authority to withhold judicial
review by statute than its federal counterpart, the Administrative Procedure Act (APA),
which allows for judicial review “except to the extent that . . . statutes preclude judicial
review.” 5 U.S.C. §§ 701(a)(1) and 702.
[¶14] As the language of § 16-3-114(a) indicates, agency decisions are generally
reviewable. See generally Availability of Judicial Review of Administrative Action, 55
Geo. Wash. L. Rev. 729, 729-30 (1987). Consistent with § 16-3-114(a), we have
incorporated into our case law a presumption of reviewability. In interpreting statutes we
have said that, to withhold judicial review of an agency decision, we must find clear and
convincing evidence the legislature intended to preclude or limit such review.
Albertson’s, ¶ 8, 33 P.3d at 164. See also Holding’s Little America v. Bd. of County
Comm’rs of Laramie County, 670 P.2d 699, 702 (Wyo. 1983), after remand, 712 P.2d
331 (Wyo. 1985). However, we must keep in mind that the right to judicial review of
agency action is created by statute, not by the presumption. The presumption merely
provides a means of interpreting substantive statutes to determine whether the legislature
intended to confer a right to judicial review. See Albertson’s, ¶¶ 7-8, 25, 33 P.3d at 164-
65.
[¶15] Section 15-5-112(b) governs a fireman’s right to review of the city’s decision to
terminate his employment:
(b) Discharge from a department, or reduction in grade or
compensation, or both, may be made for any cause, not
political or religious, which will promote the efficiency of the
service, on written notice and specifications filed with the
commission and served upon the person affected by the
authority requesting the discharge or reduction. The person
whose discharge or reduction is sought is allowed a
reasonable time to answer the charges in writing and demand
a hearing. The commission, after hearing or investigation,
shall determine whether the reason for discharge or reduction
is sufficient and established. Except as otherwise provided in
subsection (c) of this section [pertaining to police
departments] no person may be discharged or reduced in pay
or rank without consent of the commission after a hearing,
unless the action is pursuant to a classification program under
W.S. 15-5-106. A copy of the specifications, notice, answer,
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consent and order of discharge or reduction are a part of the
public records of the commission.
Judicial review of the commission’s decision is authorized by Wyo. Stat. Ann. § 15-5-
113 (LexisNexis 2015):
The decision of the commission discharging or
reducing any person in rank or pay may be reviewed by the
district court pursuant to Rule 12 of the Wyoming Rules of
Appellate Procedure.
[¶16] Mr. Vance claims the City was not entitled to judicial review of Commission
Decision #2.1 In that order, the Commission refused to consent to the City’s discharge of
Mr. Vance because it found the City’s reasons for the discharge based upon the failed
breathalyzer tests were not sufficient and established under § 15-5-112(b). Mr. Vance
argues that Commission Decision #2 was not subject to review under § 15-5-113 because
the statute provides for review only of commission decisions “discharging or reducing
any person in rank or pay,” not for decisions refusing to discharge an employee. Stated
another way, Mr. Vance argues that, because the Commission did not discharge him or
reduce his rank or pay, the district court did not have subject matter jurisdiction over the
City’s petition for judicial review of the decision.
[¶17] The City asserts that Mr. Vance’s reading of the statute is overly narrow. It
maintains that, under Keslar v. Police Civil Serv. Comm’n, City of Rock Springs, 665
P.2d 937 (Wyo. 1983), the presumption of judicial review of administrative decisions
governs and, because § 15-5-113 does not expressly prohibit the City from petitioning for
review of a commission decision refusing to consent to a discharge, it is reviewable. A
casual reading of Keslar supports the City’s position; however, more careful review of
the case and the legal developments since that time show the City’s reliance is
misplaced.2
1
Mr. Vance’s supplemental brief challenged the district court’s jurisdiction to review both of the City’s
petitions for review. Both the City and Mr. Vance filed petitions for review of Commission Decision #1,
raising questions about the legal standard applied by the Commission. At oral argument, Mr. Vance’s
attorney acknowledged that Mr. Vance’s petition for review gave the district court jurisdiction to review
Commission Decision #1. Therefore, we do not need to address the effectiveness of the City’s petition
for review of Commission Decision #1.
2
In Regan v. City of Casper, 494 P.2d 933, 934-35 (Wyo. 1972), we stated that either the city or the
employee would have the right to judicial review after the commission made a decision on remand.
However, that decision was concerned with remand procedures and WAPA requirements, not the city’s
statutory right to judicial review of a commission decision refusing to consent to a discharge. Because
Regan did not analyze the statutory language included in § 15-5-113, it does not govern our decision in
this case.
5
B. The Keslar Decision
[¶18] In Keslar, we addressed whether, under § 15-5-113, the district court had
jurisdiction to consider a police department employee’s petition for review of a
commission decision to suspend him. We concluded that, although the statute
specifically provides for review only of commission decisions discharging or reducing an
employee’s rank or pay, the decision suspending Keslar without pay was reviewable. Id.
at 941-44.
[¶19] Keslar discussed federal precedent which generally held that statutes allowing for
judicial review of administrative decisions are broadly interpreted, while exceptions to
review are narrowly interpreted.
“Each statute must be carefully examined to discover the
legislature’s intent to restrict judicial review of administrative
action. (Heikkila v. Barber (1953), 345 U.S. 229, 73 S. Ct.
603, 97 L. Ed. 972.) While it is often said that barring
constitutional impediments the legislature can preclude
judicial review (See Mount St. Mary’s Hosp. v. Catherwood
(1970), 26 N.Y.2d 493, 511, 518–519, 311 N.Y.S.2d 863, 260
N.E.2d 508 (Fuld, C.J., Concurring)), such intent must be
made specifically manifest, and persuasive reason must exist
to believe such was the legislative purpose. (Abbott
Laboratories v. Gardner (1967), 387 U.S. 136, 87 S. Ct. 1507,
18 L. Ed. 2d 681.) Only upon a showing of clear and
convincing evidence of contrary legislative intent should the
courts restrict access to judicial review. Rusk v. Cort (1962),
369 U.S. 367, 82 S. Ct. 787, 7 L. Ed. 2d 809.” United States
Steel Corp. v. Wyoming Environmental Quality Council, [575
P.2d 749,] 750 [(Wyo. 1983), quoting Klein v. Fair
Employment Practices Commission, 334 N.E.2d 370, 374
(1975).] 3
Keslar, 665 P.2d at 941 (footnote added). The Keslar decision continued by quoting
Abbott Laboratories as follows:
“ * * * ‘The mere fact that some acts are made reviewable
should not suffice to support an implication of exclusion as to
others. The right to review is too important to be excluded on
3
The United States Supreme Court abrogated Abbott Laboratories and Rusk, in part, in Califano v.
Sanders, 430 U.S. 99, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977). Califano, 430 U.S. at 105-06, 97 S. Ct. at
984-85, held that the APA does not create an independent basis for a district court to assume subject
matter jurisdiction over an administrative appeal.
6
such slender and indeterminate evidence of legislative intent.’
Jaffe, supra [Judicial Control of Administrative Action 336–
359 (1965) ], at 357.”
Id. at 942, quoting Abbott Laboratories, 87 S. Ct. at 1511-12.
[¶20] The presumption of reviewability was not, however, the sole basis for our decision
in Keslar. We stated that, because the commission granted the employee an
administrative hearing in accordance with its rules and regulations and the WAPA, “it
became the law of this case that the four-day disciplinary suspension in effect was a
reduction in compensation.” Id. at 943. Thus, we concluded the suspension decision fell
directly under the statutory language which provides for judicial review of commission
decisions reducing an employee’s pay. In that respect, Keslar is very different from the
case at bar because the City’s appeal of the Commission’s decision not to discharge Mr.
Vance clearly does not fall under the express language of § 15-5-113.
[¶21] Keslar also stressed that the commission’s policies provided employees certain
administrative protections:
The Rock Springs Police Department Civil Service
Commission, in the exercise of its discretion, had adopted the
procedure provided in the Wyoming Administrative
Procedure Act. Having made the choice to afford the
appellant an administrative right of review, the Commission
also agreed to extend to the appellant the full panoply of
protection provided in the Wyoming Administrative
Procedure Act, including the right to judicial review.
Keslar, 665 P.2d at 943 (citations omitted). See also Mondt v. Cheyenne Police Dep’t,
924 P.2d 70, 76-80 (Wyo. 1996) (describing the civil service statutes’ protection of
employee rights). The City asserts that, under the same rationale, it is entitled to judicial
review because it has adopted the WAPA procedures. However, the reasoning advanced
in Keslar does not apply when we are considering the City’s right to judicial review. The
protections provided to employees in the commission’s policies and procedures do not
support extending the right to judicial review to the City. Furthermore, the City does not
have the power to adopt rules that contravene Wyoming statutes. Mondt, 924 P.2d at 73
(stating that the commission’s rules “cannot legally contravene the substantive content of
the civil service statutes pursuant to which they are promulgated”). If the legislature
chose to withhold from the City the right to judicial review of a commission decision
refusing to consent to a discharge, the City cannot contravene that intent through
adoption of WAPA procedures.
C. Legal Developments After Keslar
7
[¶22] After Keslar was decided, the presumption of reviewability and the definition of
clear and convincing evidence of legislative intent to withhold judicial review were
refined by the United States Supreme Court and this Court. The Supreme Court
explained in Block v. Community Nutrition Institute, 467 U.S. 340, 104 S. Ct. 2450, 81 L.
Ed. 2d 270 (1984):
The presumption favoring judicial review of
administrative action is just that—a presumption. This
presumption, like all presumptions used in interpreting
statutes, may be overcome by specific language or specific
legislative history that is a reliable indicator of
congressional intent. . . . [T]he presumption favoring
judicial review of administrative action may be overcome by
inferences of intent drawn from the statutory scheme as a
whole. In particular, at least when a statute provides a
detailed mechanism for judicial consideration of
particular issues at the behest of particular persons,
judicial review of those issues at the behest of other
persons may be found to be impliedly precluded.
Block, 467 U.S. at 349, 104 S. Ct. at 2455-56 (emphasis added and citations omitted). In
other words, the right to judicial review of an agency decision is created by statute, not by
the presumption, and the presumption can only recognize a right of reviewability when
the statute allows that interpretation. The Supreme Court also clarified that it had, “never
applied the ‘clear and convincing evidence’ standard in the strict evidentiary sense . . . .
Rather, the Court has found the standard met, and the presumption favoring judicial
review overcome, whenever the congressional intent to preclude judicial review is ‘fairly
discernible in the statutory scheme.’ Data Processing Serv. v. Camp, 397 U.S. at 157, 90
S. Ct. at 832.” Block, 467 U.S. at 350-51, 104 S. Ct. at 2456. Under Block, fairly
discernible evidence of legislative intent to preclude judicial review can be found not
only in the statute’s express language, “but also from the structure of the statutory
scheme, its objectives, its legislative history, and the nature of the administrative action
involved.” Block, 467 U.S. at 345, 104 S. Ct. at 2453-54. This Court recognized the
Block rationale in Pisano v. Shillinger, 835 P.2d 1136, 1138-39 (Wyo. 1992).
[¶23] In Albertson’s, 2001 WY 98, 33 P.3d 161, we applied the test from Block to
determine whether an unsuccessful applicant for transfer of a liquor license was entitled
to judicial review of the city’s denial decision. We started with the express language of
the statute and noted that it “only grants a right of appeal to applicants for renewal
licenses or permits, and appeals by new applicants are categorically denied.” Id., ¶ 9, 33
P.3d at 166. The judicial review statute did not mention transfers at all. In determining
whether the presumption favoring judicial review should apply, we found it significant
8
that the statutory language did not “refer to appeals in a generic context.” Instead, it
expressly listed what parties could appeal and the types of decisions that could be
appealed. We, therefore, concluded “the exclusion of the term ‘transfer’ from the
provisions governing appeals [was] not a mere oversight, but rather it evidence[d] an
affirmative legislative choice to limit such appeals.” Albertson’s, ¶¶ 9-10, 33 P.3d at 166.
We also looked at the entire statutory scheme and its legislative history to finally
determine that the legislature intended to limit judicial review to decisions specifically
listed in the statute, and, because transfers were not included in the list, they were not
subject to appeal. Id., ¶¶ 15-24, 33 P.3d at 168-70.
D. Application of Block/Albertson’s to Present Case
[¶24] Applying this precedent in the case at bar, we must determine whether the
legislature intended to limit judicial review to the decisions specifically listed in § 15-5-
113 based upon: the statutory language setting out the right to judicial review of
commission decisions; the civil service statutory scheme, its objectives, and the nature of
the commission’s administrative action; and the legislative history. Stated another way,
we will decide whether legislative intent to withhold review of a commission decision
refusing to consent to a city’s discharge of an employee can be fairly discerned from the
statutory scheme or whether the general presumption in favor of review should prevail.
1. Language of § 15-5-113
[¶25] Section 15-5-113 does not “refer to appeals in a generic context.” Albertson’s, ¶
9, 33 P.3d at 166. Instead, it provides a discrete list of the types of commission decisions
that are entitled to judicial review – “decisions discharging or reducing any person in
rank or pay.” Section 15-5-113. The only commission decisions delineated as subject to
judicial review are those with adverse effects on the employee. The plain language of the
statute, therefore, does not provide for judicial review of a commission decision refusing
to consent to the city’s discharge of an employee. Nevertheless, as the City argues, § 15-
5-113 does not expressly preclude judicial review of a commission decision refusing to
uphold the discharge. A simple application of the presumption in favor of judicial
review, including the Abbott Laboratories’ statement quoted in Keslar, 665 P.2d at 942,
that “[t]he mere fact that some acts are made reviewable should not suffice to support an
implication of exclusion,” might result in a finding of reviewability. On the other hand,
such a finding of reviewability would ignore the “detailed mechanism for judicial
consideration of particular issues” chosen by the legislature, effectively rendering the
plain language of the statute meaningless. Block, 467 U.S. at 349, 104 S. Ct. at 2456.
[¶26] In accordance with the cases decided after Keslar, we look beyond the fact that the
language of the statute does not expressly preclude review to determine whether there is
fairly discernible evidence that the legislature intended to limit judicial review to the
9
decisions specifically listed in § 15-5-113. In making that determination, we consider the
other Block factors.
2. Structure and Objectives of Civil Service Statutory Scheme and the
Nature of the Administrative Action
[¶27] The structure and objectives of the civil service statutory scheme and the nature of
the administrative action are relevant in determining whether the legislature intended to
grant cities judicial review of commission decisions refusing to consent to discharges.
Because these factors are related, we will consider them together. See, e.g., Albertson’s,
supra.
[¶28] Wyo. Stat. Ann. §§ 15-5-101 through 122 (LexisNexis 2015) provides a
comprehensive system for civil service commission regulation of fire and police
department employment matters in municipalities with populations of 4,000 or more
people. The civil service commission is appointed by the city’s mayor and confirmed by
the city’s governing body. One of the three members of the commission may “be
appointed from the governing body.” Section 15-5-103. The commission is responsible
for determining which persons are eligible for employment with fire and police
departments. “Except as otherwise provided by law, no person may be employed or
appointed in the fire or police department except from the list of eligible persons certified
by the commission[] to the governing body.” Section 15-5-105(a). The commission is
also responsible for classifying the various employment positions within the departments,
determining by examination whether individuals are fit to perform the services associated
with their positions, and developing and enforcing rules for promotion. Sections 15-5-
105 through 108, 119. See, e.g., City Council of Laramie v. Kreiling, 911 P.2d 1037
(Wyo. 1996) (describing the role of the civil service commission in police department
employment matters); Tremblay v. Reid, 700 P.2d 391 (Wyo. 1985) (upholding
commission’s enforcement of its medical and health requirements for firefighters).
[¶29] In addition to overseeing the hiring and promotion of all fire department
employees, “no person may be discharged or reduced in pay or rank without consent of
the commission.” Section 15-5-112(b) (emphasis added). The city initiates the
disciplinary action by filing written notice and specifications with the commission and
serving the same upon the employee “requesting the discharge or reduction.” Id.
(emphasis added). The employee “whose discharge or reduction is sought is allowed a
reasonable time to answer the charges in writing and demand a hearing.” “After a
hearing or investigation,” the commission decides whether to “consent” to the city’s
action by determining if the “reason for discharge or reduction is sufficient and
established.” Section 15-5-112(b) (emphasis added).
[¶30] The civil service statutory scheme shows that the legislature intended for the
commission to exercise the city’s responsibilities for police and fire department
10
employment decisions. See generally City of Rock Springs v. Police Protection Ass’n,
610 P.2d 975 (Wyo. 1980) (reviewing the commission’s responsibilities in appointing
employee); Fristam v. City of Sheridan, 206 P.2d 741, 747 (Wyo. 1949) (stating the role
of the commission is to provide a helping hand to the city in the efficient administration
of municipal affairs). It is telling that, in § 15-5-112(b), the legislature referred to the
city’s notice of discharge as a “request”; directed that no employee discharge or reduction
in grade or compensation can become final without commission “consent”; and gave the
commission power to investigate and hold hearings on the disciplinary matters.
[¶31] The statutory scheme demonstrates that the commission is not an independent
agency that reviews the city’s final employment decision; instead, it plays an integral role
in making employment decisions. The commission is, in all respects, the final decision
maker for the city on department employment matters. The commission’s action is, in
effect, the city’s action. In other words, the commission is acting for the city itself. See
City of Jackson v. Little, 245 So. 2d 204 (Miss. 1971) (holding municipality could not
appeal civil service commission decision because, under Mississippi law, the commission
makes the city’s final decisions on police department employment matters). Compare
Crofts v. State ex rel. Dep’t of Game & Fish, 2016 WY 4, 367 P.3d 619 (Wyo. 2016)
(Office of Administrative Hearings is not connected to the Game & Fish Department and
conducts independent review of the agency’s employment decisions). Given the role the
commission performs in all department employment matters, it is not surprising the
legislature would have chosen to deny the city a right to challenge its own (the
commission’s) final employment decision in court by limiting judicial review to
employee challenges of discharge or reduction in pay or rank decisions.
[¶32] The Keslar decision implicitly recognized that the commission was the city’s final
decision maker when it named the commission, rather than the department or city, as the
respondent/appellee on appeal. That alignment of parties shows that the city was not a
separate party from the commission, but rather, the commission’s decision was the city’s
decision. Similarly, in the unemployment insurance context, the department and
commission are aligned as parties when commission decisions are appealed and the
commission is often named as the respondent in such actions. See, e.g., Koch v. Dep’t of
Employment, Unemployment Ins. Comm’n, 2013 WY 12, 294 P.3d 888 (Wyo. 2013);
Clark v. State, ex rel. Dep’t of Workforce Services, Unemployment Ins. Comm’n, 2016
WY 89, 378 P.3d 310 (Wyo. 2016).
[¶33] In addition, the scope of judicial review under § 15-5-113 is the same as the scope
of the commission’s administrative decision-making in § 15-5-112(b). If the legislature
had intended to allow judicial review of all commission decisions, including those
adverse to the city such as a decision not to consent to a discharge, it logically would
have expanded the list of decisions subject to judicial review beyond those subject to
commission review.
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[¶34] Finally, the civil service statutes demonstrate an overall legislative intent to protect
police and fire department employees from unjustified discharge or reduction decisions.
Section 15-5-112(b) allows discharge for any cause that will promote the efficiency of
the service, so long as it is not political or religious in nature. The intent to protect
employees from the vagaries of politics within the department is also demonstrated in §
15-5-116 which prohibits discharging or changing the amount of compensation of any
employee, or promising or threatening to do so, for “giving, withholding or neglecting to
make contributions or perform services for any political purpose” and officers or
employees from soliciting “political contributions from any civil service employee.”
Giving employees the right to judicial review of commission decisions adverse to them
furthers that legislative purpose. See generally Anderson v. City of Sioux Falls, 384
N.W.2d 666, 669 (S.D. 1986) (stating the fundamental purpose of civil service laws is to
establish a merit system for selection of public service employees based upon
competence, without regard to political considerations, and to safeguard employees
against unjust charges of misconduct and inefficiency and from being discriminated
against for religious or political reasons). That purpose would not be similarly advanced
by giving the city the right to judicial review of commission decisions. But, see
generally, City of Casper v. Utech, 895 P.2d 449 (Wyo. 1995) (considering, without a
discussion of jurisdiction or the applicable statutes, city’s appeal from decision of
personnel board (not civil service commission) that there was insufficient evidence to
support Utech’s discharge).
3. Legislative History
[¶35] The history of the relevant statutes is also important in the search for the
legislature’s intent with regard to the right of judicial review of agency decisions. See
Block and Albertson’s, supra. Originally, there were separate civil service statutory
schemes for police and fire departments. The first civil service statutes pertaining to fire
departments were adopted in 1933. At that time, like now, employees who were
discharged or reduced in grade or compensation were given the right to a hearing or
investigation by the commission to determine if the employment decision was “sufficient
and established.” The 1933 legislation did not provide any right to judicial review of
commission decisions. 1933 Wyo. Sess. Laws, ch. 49 § 11. In 1937, the legislature
authorized civil service commissions for police departments and provided for
commission and judicial review of discharge decisions. 1937 Wyo. Sess. Laws, ch. 69 §§
13-14.
[¶36] By 1965, police and fire departments were addressed together in the statutes, and
the law included a right to judicial review of commission decisions:
The decision of the commission discharging or
reducing any person in rank or pay may be reviewed by
the district court upon appeal in the following manner: The
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appeal shall be taken by filing written notice within ten (10)
days after the decision with the clerk of the city or town, and
the clerk of the district court . . . When the notice of appeal is
filed with the clerk of the district court, the appellant shall at
that time execute and file a sufficient bond in the penal sum
of two hundred dollars ($200.00) with at least two sureties,
approved by the clerk and conditioned to prosecute the
appeal without delay and, if unsuccessful, to pay all costs
to which the city is put by reason of the appeal.
Wyo. Stat. Ann. § 15.1-294 (1965) (emphasis added). The opening statement which
describes appealable orders mirrors the current statute by focusing on decisions adverse
to the employee, i.e., “[t]he decision of the commission discharging or reducing any
person in rank or pay may be reviewed by the district court.” The 1965 statute also
required “the appellant” to post a bond “conditioned to prosecute the appeal without
delay and, if unsuccessful, to pay all costs to which the city is put by reason of the
appeal.” Under this language, “the appellant” can only be the employee because it is
illogical to require a city to post a bond recoverable by itself and because there is no
reciprocal provision allowing an employee to claim against a bond posted by the city.
[¶37] In 1980, the legislature revised and renumbered the entire Title 15 which governs
cities and towns to, in relevant part, eliminate obsolete or fully executed statutes, conform
conflicting statutes, and eliminate duplicative or archaic language. Wyo. Laws 1980, ch.
38, preamble. The section providing for judicial review of civil service commission
decisions was renumbered as § 15-5-113. The legislature retained the language
authorizing judicial review of decisions “discharging or reducing any person in rank or
pay” and adopted the procedure for judicial review in Rule 12 of the Wyoming Rules of
Appellate Procedure. Id.
[¶38] In the 1980 revision of the judicial review statute, the language requiring the
appellant to post a bond which would pay the city’s costs on appeal was omitted. As the
preamble to the 1980 legislation stated, the legislature intended to modernize the
statutory language, which included recognition of the specific procedures applicable to
appeals from administrative decisions. Replacing the earlier language governing how to
prosecute appeals of commission decisions with the W.R.A.P. 12 procedures was
consistent with the purposes expressed in the preamble. It is not surprising the bond
requirement was removed because Rule 12, which tracks the WAPA and sets forth
procedures for judicial review of administrative decisions, generally does not require
bonds.
[¶39] Importantly, the 1980 version of the statute did not change the language about the
types of commission decisions that could be reviewed by the district court. Instead of
making a generic statement such as “the decision of the commission may be reviewed by
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the district court,” it retained language authorizing judicial review of commission
“decisions discharging or reducing any person in rank or pay.” It, therefore, preserved
the language which expressly allows for appeals only from decisions adverse to the
employee. Unless this language limits judicial review to only those specific adverse
decisions, it has no meaning at all.
[¶40] We conclude it is “fairly discernible” from the plain language of § 15-5-113, the
entire civil service statutory scheme, the nature of commission action in department
disciplinary actions, and the legislative history of the statutes providing for judicial
review of commission decisions that the legislature intended only decisions adverse to the
employee be subject to judicial review. The legislature did not expressly grant cities the
right to judicial review of commission decisions refusing to consent to discharges of
employees, and other indicators of legislative intent show that it did not mean to extend
that right to cities. Given the right to judicial review of agency decisions is entirely
statutory, the presumption in favor of review cannot be used to create a right that was not
provided by statute and would be inconsistent with the civil service statutory scheme.
[¶41] The City also appears to argue that this Court ruled in Keslar that any time an
agency like the Commission adopts WAPA procedures, the parties have the right to
judicial review. The City overstates the holding in Keslar. As noted above, the Keslar
decision stated that because the city gave Keslar the opportunity for an administrative
hearing on his suspension, the law of the case was that Keslar’s suspension without pay
amounted to a reduction in pay. That ruling brought the case directly under § 15-5-113
because reductions in pay are specifically subject to judicial review. Consequently,
Keslar does not stand for the broad proposition that any time an agency adopts WAPA
procedures or provides for an administrative hearing, any party to the hearing will
automatically acquire a right to judicial review of the agency decision.
[¶42] Further, the City’s assertion that the right to judicial review is created any time an
agency adopts WAPA procedures is not consistent with § 16-3-114(a) which specifically
allows the legislature to preclude or limit judicial review of agency decisions. The City’s
argument suggests that an agency can create the right to judicial review when the
legislature has not authorized it. That is clearly inconsistent with our law which states
that the right to judicial review of administrative decisions is entirely statutory, the
absence of subject matter jurisdiction cannot be waived, and jurisdiction cannot be
created by agreement between the parties. Edsall, ¶ 10, 375 P.3d at 802; Casper Iron &
Metal, 845 P.2d at 391; North Laramie Land Co. v. Hoffman, 26 Wyo. 327, 329, 184 P.
226, 228 (1919).4
4
This case also raises the issue of whether a city/municipality, acting as employer, is a “person” to
qualify for judicial review of agency action under § 16-3-114(a). Because our decision that the legislature
did not authorize judicial review of the Commission’s decision refusing to consent to Mr. Vance’s
discharge fully disposes of this case, we do not need to address that issue.
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CONCLUSION
[¶43] The express language of § 15-5-113 grants the right to judicial review of decisions
adverse to the employee. It does not, on its face, permit judicial review of commission
decisions refusing to consent to a discharge. Even without an express statutory grant, the
presumption in favor of reviewability could justify granting cities the right to review
unless there is fairly discernible evidence that the legislature did not intend to allow it.
The civil service statutory scheme, which gives commissions broad powers over
department employment matters, and the legislative history of the right to judicial review
of commission decisions provide fairly discernible evidence that the legislature intended
for the commissions to be the cities’ final decision-makers and did not intend for cities to
have judicial review of commission decisions refusing to consent to discharge. It would
be improper to use a presumption to contradict the legislature’s intent as reflected in the
plain language of the statute, the statutory scheme, and the legislative history.
[¶44] Under the civil service statutes, Commission Decision #2 refusing to consent to
Mr. Vance’s discharge was final and was not subject to judicial review. The district court
did not have jurisdiction to consider the City’s petition for judicial review.
Consequently, its decision reversing and remanding Commission Decision #2 is void and,
hereby, vacated. In addition, all of the proceedings that followed Commission Decision
#2 were improper, meaning that Commission Decision #3 and the district court’s
dismissal of Mr. Vance’s petition for review of that decision are void and, hereby,
vacated. Because the district court did not have jurisdiction over the matter, we, likewise,
lack jurisdiction beyond determining that the district court had no jurisdiction to review
Commission Decision #2. Rock v. Lankford, 2013 WY 61, ¶ 18, 301 P.3d 1075, 1080
(Wyo. 2013), quoting Hall v. Park Cnty., 2010 WY 124, ¶ 3, 238 P.3d 580, 581 (Wyo.
2010). This appeal is, therefore, dismissed.
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