City of Des Moines v. Civil Service Com'n of Des Moines, 93-353

• Decision Date: 23 March 1994
• Docket Number: No. 93-353,93-353
• Citation: 513 N.W.2d 746
• Parties: CITY OF DES MOINES, Iowa, Appellant, v. CIVIL SERVICE COMMISSION OF DES MOINES, Iowa, and Ronald White, Appellees.
• Court: Iowa Supreme Court

Page 746

513 N.W.2d 746

CITY OF DES MOINES, Iowa, Appellant, v. CIVIL SERVICE COMMISSION OF DES MOINES, Iowa, and Ronald White, Appellees.

No. 93-353.

Supreme Court of Iowa.

March 23, 1994.

Rehearing Denied April 20, 1994.

Nelda Barrow Mickle, City Sol., for appellant.

Alfredo Parrish and Maggi Moss of Parrish & Kruidenier, Des Moines, for appellees.

Considered by McGIVERIN, C.J., and HARRIS, CARTER, NEUMAN, and ANDREASEN, JJ.

NEUMAN, Justice.

Ron White, a seventeen-year veteran of the Des Moines Police Department, was fired after evidence seized in a drug raid turned up missing. Based on the record subsequently made in White's appeal, the Civil Service Commission found insufficient evidence to sustain the police chief's termination order. The City appealed to the district court in accordance with Iowa Code section 400.27 (1991). Upon its de novo review, the court affirmed the commission's findings and ordered White's reinstatement. On the City's appeal to this court, we affirm.

The facts are largely undisputed. In November 1990, White was the supervising sergeant in charge of a search of the apartment of Ernest Draper and Marilyn Wilson. The search yielded narcotics, cash, and other items that were photographed and seized. Five months later, during Draper's criminal trial, it was discovered that a winning $50 lottery ticket, photographed during the search, was not in evidence nor listed in the evidence log. A call to the Iowa Lottery Commission revealed that the ticket had been cashed the day after the search by White's wife, Jodi. As the trial progressed, a further discrepancy surfaced over a missing $100 bill. A mistrial was declared, and Draper and Wilson ultimately entered guilty pleas to substantially reduced charges.

Des Moines Police Chief William Moulder placed White on administrative leave pending investigation into the missing lottery ticket and cash. Jodi White told investigating officers that she found the ticket on the couple's front porch but had not mentioned the discovery to White because she knew he did not play the lottery. White denied taking the ticket from the search and disclaimed any knowledge about how the ticket had come into his wife's possession. He rejected the suggestion that someone in the department might have framed him. He voiced concern, however, that he might have been set up by the same "bad guys" that had recently committed random acts of violence against White and his family.

The chief and investigating officers, faced with the evidence sketched above, concluded that the only plausible explanation for Jodi White's possession of the lottery ticket was "pilfer[ing] from the crime scene." White was terminated on May 31, 1991, for "failure to meet the standard of conduct, accountability, and integrity" demanded of a police officer. White was also charged with third-degree theft. The chief's written grounds for termination stated, however, that the "discredit and dishonor" White's conduct had brought upon the department far outweighed any criminal charge pending against him.

White appealed the chief's decision to the Civil Service Commission in accordance with Iowa Code section 400.20. By the time the matter was heard by that body, a jury had already acquitted White of all criminal charges, and he had proved his entitlement to unemployment compensation despite the City's claim of misconduct. Moreover, the chief acknowledged that he had not been fully apprised of alleged exculpatory evidence that came to light either during the investigation or shortly after his termination decision. After hearing testimony and reviewing all documents, the commission concluded that the chief's decision was not supported by substantial evidence. It ordered White's reinstatement with full back pay and benefits.

The City appealed the commission's ruling to the district court pursuant to Iowa Code section 400.27. Following a trial de novo, the court determined that, in light of White's unwavering denial of wrongdoing, his presentation of mitigating evidence, and the City's failure to explain how the lottery ticket made its way to the Whites' property, Chief Moulder's decision rested on speculation and could not be affirmed. The court therefore ordered White's reinstatement. This appeal followed.

The City's principal claim on appeal is that the commission, and the district court, failed to give the deference due Chief Moulder's decision. It claims the record contains substantial evidence supporting termination and that the district court erred by (1) substituting its findings for the chief's, (2) relying on evidence not before the chief when he made his decision, and (3) giving weight to expert testimony regarding disparate departmental discipline.

I. Iowa Code section 400.19 vests police chiefs with authority to peremptorily suspend, demote or discharge a subordinate officer, "for neglect of duty, disobedience of orders, misconduct, or failure to properly perform the subordinate's duties." In cases interpreting this statute, we have determined that a chief's suspension or dismissal must be for "conduct detrimental to the public interest." Borlin v. Civil Serv. Comm'n, 338 N.W.2d 146, 148 (Iowa 1983); Millsap v. Civil Serv. Comm'n, 249 N.W.2d 679, 687 (Iowa 1977). To ensure that a chief's disciplinary decision is supported by substantial evidence, chapter 400 provides for an evidentiary hearing both before the Civil Service Commission and again, de novo, in the district court. See Iowa Code § 400.27; Bevel v. Civil Serv. Comm'n, 426 N.W.2d 380, 382 (Iowa 1988). In Bevel we observed that this statutory scheme serves to protect civil service employees from arbitrary sanctions by their superiors. Id. Under section 400.27, the commission and court are free to make an independent determination regarding the disciplinary measures taken. In re Kjos, 346 N.W.2d 25, 29 (Iowa 1984). Therefore, we are not obliged to presume the correctness of the chief's decision, but must determine anew whether the evidence as a whole justifies an officer's discharge. Sieg v. Civil Serv. Comm'n, 342 N.W.2d 824, 829 (Iowa 1983).

Despite the clear language of the foregoing cases and statutes, the City argues that trial de novo does not authorize the court to "wipe out the decision of a police chief under section 400.19 and insert its own decision upon the matter." It asserts that the factual conclusions upon which the chief's decision rests are binding if supported by substantial evidence. In support of its assertion, the City cites numerous cases involving judicial review of agency action under Iowa Code section 17A.19. Because our review under section 17A.19 is on error, not de novo, these cases are inapposite. Unlike section 17A.19 review, on de novo review we independently construe the factual record as a whole to determine if the officer's discipline was warranted. Sieg, 342 N.W.2d at 829; Millsap, 249 N.W.2d at 688.

II. The record before us consists of documentary evidence and testimony from hearings before the chief, the commission, and the district court as well as from White's criminal trial. Throughout these proceedings, White adamantly denied removing the ticket from the search scene. The City has presented no concrete explanation for how the ticket arrived on White's front porch. It nevertheless insists that Jodi White's cashing of the ticket supports "the appearance of improper conduct" sufficient to warrant White's discharge.

While it cannot be denied that the circumstances warranted an investigation, the City attempts to discount the significance of mitigating evidence that has surfaced since the chief ordered White's termination. After the judge in the Draper trial discovered the missing $100 bill, he ordered a serialization of the bills in evidence. One of the officers charged with investigating White then made a self-proclaimed "stupid mistake" in the serialization. The officer did not inform Chief Moulder of this...