347 N.W.2d 887 (S.D. 1984), 14347, Grievance of O'Neill

CourtSupreme Court of South Dakota
Writing for the CourtThe opinion of the court was delivered by: Fosheim
Citation347 N.W.2d 887
Date02 May 1984
Docket Number14347.
PartiesIn the Matter of the Grievance of Charles O'NEILL, Grievant.

Page 887

347 N.W.2d 887 (S.D. 1984)

In the Matter of the Grievance of Charles O'NEILL, Grievant.

No. 14347.

Supreme Court of South Dakota.

May 2, 1984

Argued Feb. 13, 1984.

N. Dean Nasser, Jr., P.C. by N. Dean Nasser, Jr., Sioux Falls, for appellant.

South Dakota State Penitentiary by Dennis C. Maloney, Aberdeen, for appellee.

FOSHEIM, Chief Justice.

Charles O'Neill (Grievant) appeals the circuit court affirmance of a career service commission order denying his grievance against the South Dakota State Penitentiary (Penitentiary). We reverse and remand for a new hearing before the career service commission.

Grievant was employed by the Penitentiary from January 22, 1979, to May 19, 1982. He was a career service employee and his last position was a Correctional Officer II. His duties included maintaining order in the penitentiary and transporting prisoners.

Grievant's employment was terminated on May 19, 1982, following a hearing before the Penitentiary disciplinary board. He appealed the termination in a grievance hearing before a hearing examiner and Warden Solem. The warden sustained the termination. Grievant then requested a hearing before the South Dakota Board of Charities and Corrections. The Board sustained Warden Solem. Grievant appealed this decision to the career service commission pursuant to SDCL 3-6A-38. After a de novo hearing the commission entered an order denying the grievance. The circuit court affirmed the commission.

Page 888

The incidents upon which the discharge rests are: (1) DWI and resisting arrest charges which occurred in June 1980 (pursuant to a plea bargain, Grievant pleaded guilty to resisting arrest and speeding); (2) a hit-and-run accident on July 3, 1980; (3) an assault against a local citizen; and (4) an arrest for disturbing the peace and resisting arrest on May 3, 1982. It is undisputed that Grievant's job performance was satisfactory.

Grievant claims the discharge proceedings were brought, conducted, and upheld under the wrong standard of conduct. The lower tribunals based their decision, in part, on SDCL 23-3-35(3), which permits the law enforcement standards commission to decertify law enforcement officers convicted of a misdemeanor involving moral turpitude. 1 This statute reads, in part:

In addition to powers conferred upon the commission elsewhere in this chapter, the commission shall have power to:

....

(3) Certify persons as being qualified under the provisions of Secs. 23-3-26 to 23-3-47, inclusive, to be law enforcement officers, and by rule to establish criteria and procedure for the revocation or suspension of the certification of officers who are convicted of a felony or misdemeanor involving moral turpitude, have intentionally falsified any application or document to achieve certification, or have been discharged from employment for cause. [Emphasis added]

Grievant contends that SDCL 23-3-35(3) was erroneously invoked. We agree. That statute is applied by the law enforcement standards commission. The commission was not involved in these grievance hearings or appeals. SDCL 23-3-35(3) relates to certification and decertification of law enforcement officers. Grievant was not an officer certified by the law enforcement standards commission. In view of the inapplicability of this statute as grounds for Grievant's discharge, we need not decide whether he is a law enforcement officer within the meaning of SDCL ch. 23-3, as that term is variously defined in different contexts. 2

We find the applicable grounds for dismissal in SDCL ch. 3-6A and its promulgated regulations. The Career Service Act, SDCL ch. 3-6A, establishes a system of career service personnel management for the executive branch of state government. SDCL 3-6A-1. Pursuant to constitutional authority, S.D. Const. art. XIV, Sec. 2, the legislature has placed the area of personnel management of the board of charities and corrections under the bureau of personnel of the career service commission. SDCL 3-6A-12. SDCL 3-6A-37 and SDCL 3-6A-38 grant to the commission the power and duty to act as a grievance review board for career service employees if a grievance remains unresolved after exhaustion of a departmental grievance procedure and the career service employee demands a hearing before the career service commission. The commission shall uphold the appointing authority's discharge decision upon finding that the discharge was "for good cause." SDCL 3-6A-38.1.

Pursuant to the rule-making authority granted by SDCL 3-6A-36, the career service commission has defined just causes for disciplinary action in A.R.S.D. 55:01:12:05. 3

Page 889

This regulation enumerates sixteen just causes for disciplinary action. It is preceded by a catch-all provision that disciplinary action may be taken "for other just causes as reported to the commissioner."

Grievant contends that the alleged grounds for his dismissal are all off-duty related and are not among the litany of causes found in A.R.S.D. 55:01:12:05. He claims that the enumerated causes are all directly associated with work and that the canon of statutory construction known as ejusdem generis therefore prohibits the "other just causes" provision of A.R.S.D. 55:01:12:05 from encompassing his off-duty conduct. The ejusdem generis principle holds that where general words follow (or, as here, precede) the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general kind as those enumerated. Kelley v. Duling Enterprises, Inc., 84 S.D. 427, 172 N.W.2d 727 (1969); State v. Fairbanks, 65 S.D. 272, 273 N.W. 188 (1937), 111 A.L.R. 759; See also Aberdeen Ed. Ass'n v. Aberdeen Bd. of Ed., 88 S.D. 127, 215 N.W.2d 837 (1974) (Wollman, J., concurring specially).

We do not read the listed causes as all being related only to work conduct. The third enumerated cause concerns violation of any of the provisions of the Career Service Act or the accompanying administrative regulations. Such provisions theoretically can prohibit activities which may have no direct nexus with work. The fifth enumerated cause likewise permits disciplinary action for violation of any department, division, bureau or institution regulation or order or for failure to obey any proper direction made and given by a supervisor. Such regulations or directives might be broad enough to address off-duty conduct. We therefore conclude as a matter of law that the "other just causes" provision of A.R.S.D. 55:01:12:05 can potentially involve off-duty conduct. We do not speculate what, if any, just causes might be found on remand.

Grievant also claims no prior warning of disciplinary action was given before the termination. A.R.S.D. 55:01:12:03.01 states that the "appointing authority must issue to a status employee a notice in writing that his performance is unsatisfactory" (emphasis added). As noted, however, Grievant's termination did not relate to job performance. In Hartpence v. Youth Forestry Camp, 325 N.W.2d 292 (S.D.1982), we stated that the thirty day notice must be given for inadequate job performance. We recognized, however, that only one of

Page 890

the just causes for discipline enumerated in A.R.S.D. 55:01:12:05 concerns job performance. That cause was not alleged here. A.R.S.D. 55:01:12:04 permits the appointing authority to dismiss or suspend a status employee for cause at any time. Accordingly, a thirty day warning was not required.

The career service commission placed the burden of proof on Grievant instead of on the employer at the de novo hearing. The burden to show just cause for dismissal clearly rests with the employer and does not shift. Hartpence, 325 N.W.2d 292; Thomas v. Thomas Truck and Caster Company, 228 N.W.2d 52 (Iowa 1975); 53 Am.Jur.2d Master & Servant Secs. 45, 67 (1970).

Reversed and remanded for a new hearing before the career service commission under the proper standards.

WOLLMAN and DUNN, JJ., concur.

MORGAN, J., concurs specially.

HENDERSON, J., dissents.

MORGAN, Justice (concurring specially).

I concur in the decision and I write specially only to suggest that there are some limitations on the "other just causes" referred to in the preamble to A.R.S.D. 55:01:12:05. Under this rule, the Career Service Commission has defined just causes for disciplinary action by the commissioner of the appointing authority. Grievant claims, on one hand, that all of the "just causes" delineated in A.R.S.D. 55:01:12:05 are duty related. The majority points, on the other hand, to two enumerated causes that may not be job related and thus refutes grievant's claim that under the doctrine of ejusdem generis, the "other just causes" mentioned generally in the preamble must likewise be job related. Even though an appointing authority could deem spitting on the sidewalk to be a "just cause" for termination, there may be protections built into other terminology in the rule.

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  • Hasselbalch, 030392 NEAGO, AGO 92032
    • United States
    • Attorney General Opinions Nebraska
    • March 3, 1992
    ...291 N.W.2d 15 (Iowa 1980); Belanger v. Warren Consol. School Dist., 432 Mich. 575, 443 N.W.2d 372 (1989); Grievance of O'Neill, 347 N.W.2d 887 (S.D. 1984). This rule of statutory construction gives "'effect to both the particular and the general words, by treating the particular words as in......

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