Ackerson, Matter of, Nos. 13832

CourtSupreme Court of South Dakota
Writing for the CourtHENDERSON; WOLLMAN; FOSHEIM; WOLLMAN; FOSHEIM
Citation335 N.W.2d 342
Docket NumberNos. 13832,13834,13833
Decision Date22 June 1983
PartiesIn the Matter of the Certification of Richard ACKERSON, In the Matter of Certification of Kent KARLEN, In the Matter of Certification of Thomas SCHMITT.

Page 342

335 N.W.2d 342
In the Matter of the Certification of Richard ACKERSON, In
the Matter of Certification of Kent KARLEN, In the
Matter of Certification of Thomas
SCHMITT.
Nos. 13832, 13833, 13834.
Supreme Court of South Dakota.
Argued March 22, 1983.
Decided June 22, 1983.

Page 343

Jon R. Erickson, Asst. Atty. Gen., Pierre, for appellant South Dakota Law Enforcement Standards and Training Commission; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Daniel R. Moen, Aberdeen, for appellee Richard Ackerson.

Thomas P. Tonner of Maynes, Tonner, Maynes & Tobin, Aberdeen, for appellee Kent Karlen.

William D. Gerdes, Aberdeen, for appellee Thomas Schmitt.

HENDERSON, Justice.

PROCEDURAL HISTORY/CHRONOLOGY

September 15, 1981, the Aberdeen, South Dakota Police Chief and the Commissioner of Public Safety jointly notify appellees Ackerson, Schmitt, and Karlen that appellees were terminated as Aberdeen police officers due to appellees' involvement with marijuana. Within three days, appellees filed a notice of appeal with the Civil Service Board for the City of Aberdeen (Aberdeen Board).

September 18, 1981, appellees are notified that the South Dakota Law Enforcement Standards and Training Commission (State Commission) has revoked appellees' certifications as law enforcement officers pursuant to ARSD 2:01:02:07.

October 26, 1981, appellees petition the State Commission for a hearing on their decertifications.

October 27, 1981, the Aberdeen Board determines that appellees' removal was made "in good faith for cause;" however, the Aberdeen Board modifies appellees' terminations and reinstates appellees as police officers subject to seven-week suspensions without pay.

December 9, 1981, the State Commission determines that since the Aberdeen

Page 344

Board did find that appellees' removal was for cause, appellees are no longer able to remain certified and, moreover, appellees no longer possess the minimum standards necessary for employment as law enforcement officers.

December 28, 1981, a due process hearing is held by the State Commission resulting in revocation of appellees' certifications pursuant to ARSD 2:01:02:07 and ARSD 2:01:02:01(4).

February 16, 1982, appellees appeal the State Commission's decision to the circuit court.

June 3, 1982, the circuit court orders reinstatement of appellees' certifications by ruling:

Clearly, the Commission's findings that [appellees'] actions have discredited the Aberdeen police department and caused them to lose credibility and effectiveness as law officers is not one of the criteria that can be invoked for revoking certification....

* * *

* * *

The only grounds for the Commission's action in revoking certification that will be considered in this appeal are that the officers have been discharged from their present employment for cause.

* * *

* * *

... At their hearing before the Board the decision was to modify the termination to a suspension for seven weeks without pay and reinstatement at the end of that time. This was not a termination of employment--the Law Enforcement Standards and Training Commission therefore had no grounds for revoking the certifications.

June 8, 1982, the State Commission appeals from the circuit court's order.

We affirm the circuit court.

FACTS

In November of 1980, appellee Karlen, while off duty, used marijuana on at least two occasions. During the same time period, appellee Ackerson discovered marijuana on the police station restroom floor. Subsequently, appellee Ackerson removed the marijuana and placed it in the glove compartment of his personal automobile. According to appellee Ackerson, five months later he removed the marijuana from his automobile and stored it on the front porch of his home. Appellee Ackerson purportedly destroyed the marijuana in May of 1981. In December of 1980, appellee Ackerson witnessed Susan Sobesky, an off-duty police dispatcher, using marijuana. Appellee Ackerson failed to take action or report what he witnessed.

During September of 1980, appellee Schmitt removed marijuana from an abandoned vehicle in Aberdeen, South Dakota. Appellee Schmitt gave the marijuana to a police dispatcher who was accompanying him on patrol. Appellee Schmitt's inventory report failed to disclose his discovery of marijuana. Appellee Schmitt initially denied this incident, but later admitted what had transpired.

ISSUES

I.

DOES THE SOUTH DAKOTA LAW ENFORCEMENT STANDARDS AND TRAINING COMMISSION HAVE THE AUTHORITY TO REVOKE LAW ENFORCEMENT OFFICERS' CERTIFICATIONS, PURSUANT TO THE STANDARDS SET FORTH IN SDCL 23-3-42 AND ARSD 2:01:02:01? WE HOLD THAT IT DOES NOT.

II.

WERE APPELLEES DISCHARGED FOR CAUSE PURSUANT TO ARSD 2:01:02:07? WE HOLD THAT THEY WERE NOT.

DECISION

I.

A ruling or decision of an administrative agency is upheld unless we find that in light of the entire record, the decision is clearly erroneous or we are left with a firm

Page 345

and definite conviction that a mistake has been made. Dakota Harvestore Sys., Inc. v. Dep't of Revenue, 331 N.W.2d 828 (S.D.1983); Deuter v. South Dakota Highway Patrol, 330 N.W.2d 533 (S.D.1983); Fraser v. Water Rights Comm'n, Etc., 294 N.W.2d 784 (S.D.1980). Additionally, as we review the administrative record we are not bound by a presumption that the circuit court was correct. Matter of Clay-Union Elec. Corp., 300 N.W.2d 58 (S.D.1980); Matter of S. Lincoln Rural Water Sys., 295 N.W.2d 743 (S.D.1980).

Quasi-legislative powers may be delegated by the legislature to state agencies. Oahe...

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14 practice notes
  • First Nat. Bank of Minneapolis v. Kehn Ranch, Inc., Nos. 15041
    • United States
    • Supreme Court of South Dakota
    • October 1, 1986
    ...will to delegate power, and (2) a sufficient guide or standard to guide the agency. Matter of Ackerson, Karlen, & Schmitt, 335 N.W.2d 342 (S.D.1983); S.D. Migratory Bird Ass'n v. S.D. Game, Fish and Parks, 312 N.W.2d 374 In the present case, the Legislature clearly expressed a will to d......
  • Permann v. South Dakota Dept. of Labor, Unemployment Ins. Div., No. 15390
    • United States
    • Supreme Court of South Dakota
    • April 21, 1987
    ...supra; In re Application of Southern Hills Bank, 339 N.W.2d 310 (S.D.1983); Page 116 Matter of Ackerson, Karlen & Schmitt, 335 N.W.2d 342 (S.D.1983); Dakota Harvestore v. S.D. Dept. of Revenue, 331 N.W.2d 828 (S.D.1983); Fraser v. Water Rights Commission, 294 N.W.2d 784 (S.D.1980). Stil......
  • Petition of Famous Brands, Inc., No. 14269
    • United States
    • South Dakota Supreme Court
    • February 16, 1984
    ...Safety v. Haddenham, 339 N.W.2d 786 (S.D.1983); Matter of Johnson, 337 N.W.2d 442 (S.D.1983); Matter of Ackerson, Karlen & Schmitt, 335 N.W.2d 342 (S.D.1983); Dakota Harvestore v. South Dakota Dep't of Revenue, 331 N.W.2d 828 (S.D.1983); Deuter v. South Dakota Highway Patrol, 330 N.W.2d......
  • State of S.D. Water Management Bd. Approving Water Permit No. 1791-2, Matter of, No. 14296
    • United States
    • Supreme Court of South Dakota
    • June 27, 1984
    ...clearly erroneous or we were left with a firm and definite conviction that a mistake was made. Matter of Ackerson, Karlen & Schmitt, 335 N.W.2d 342 (S.D.1983); Deuter v. South Dakota Highway Patrol, 330 N.W.2d 533 On July 1, 1983, the following addition to SDCL 1-26-37 became effective:......
  • Request a trial to view additional results
14 cases
  • First Nat. Bank of Minneapolis v. Kehn Ranch, Inc., Nos. 15041
    • United States
    • Supreme Court of South Dakota
    • October 1, 1986
    ...will to delegate power, and (2) a sufficient guide or standard to guide the agency. Matter of Ackerson, Karlen, & Schmitt, 335 N.W.2d 342 (S.D.1983); S.D. Migratory Bird Ass'n v. S.D. Game, Fish and Parks, 312 N.W.2d 374 In the present case, the Legislature clearly expressed a will to d......
  • Permann v. South Dakota Dept. of Labor, Unemployment Ins. Div., No. 15390
    • United States
    • Supreme Court of South Dakota
    • April 21, 1987
    ...supra; In re Application of Southern Hills Bank, 339 N.W.2d 310 (S.D.1983); Page 116 Matter of Ackerson, Karlen & Schmitt, 335 N.W.2d 342 (S.D.1983); Dakota Harvestore v. S.D. Dept. of Revenue, 331 N.W.2d 828 (S.D.1983); Fraser v. Water Rights Commission, 294 N.W.2d 784 (S.D.1980). Stil......
  • Petition of Famous Brands, Inc., No. 14269
    • United States
    • South Dakota Supreme Court
    • February 16, 1984
    ...Safety v. Haddenham, 339 N.W.2d 786 (S.D.1983); Matter of Johnson, 337 N.W.2d 442 (S.D.1983); Matter of Ackerson, Karlen & Schmitt, 335 N.W.2d 342 (S.D.1983); Dakota Harvestore v. South Dakota Dep't of Revenue, 331 N.W.2d 828 (S.D.1983); Deuter v. South Dakota Highway Patrol, 330 N.W.2d......
  • State of S.D. Water Management Bd. Approving Water Permit No. 1791-2, Matter of, No. 14296
    • United States
    • Supreme Court of South Dakota
    • June 27, 1984
    ...clearly erroneous or we were left with a firm and definite conviction that a mistake was made. Matter of Ackerson, Karlen & Schmitt, 335 N.W.2d 342 (S.D.1983); Deuter v. South Dakota Highway Patrol, 330 N.W.2d 533 On July 1, 1983, the following addition to SDCL 1-26-37 became effective:......
  • Request a trial to view additional results

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