City of Sioux Falls v. Miller

• Decision Date: 24 May 1996
• Docket Number: No. 19399,19399
• Citation: 555 N.W.2d 368,1996 SD 132
• Parties: CITY OF SIOUX FALLS, Employer and Appellant, v. Steven C. MILLER, Employee and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 368

555 N.W.2d 368

1996 SD 132

CITY OF SIOUX FALLS, Employer and Appellant, v. Steven C. MILLER, Employee and Appellee.

No. 19399.

Supreme Court of South Dakota.

Considered on Briefs May 24, 1996.

Decided Nov. 6, 1996.

R. Shawn Tornow, Chief Assistant City Attorney, Sioux Falls, for employer and appellant.

Dennis C. McFarland, Sioux Falls, for employee and appellee.

PER CURIAM.

¶1 In this case we are called upon to determine whether an employee fired for continuing drug abuse was suffering from a disability which precluded his discharge. Under the particular circumstances, we conclude the discharge was proper and reverse the Sioux Falls Civil Service Board's order directing reinstatement.

FACTS

¶2 Steven C. Miller ¹ was employed full-time with the Sioux Falls Parks Department since 1977. Through 1993, his annual performance evaluations were adequate or better and each year he received a merit raise. Over the Labor Day weekend in 1994, he was assigned to the Laurel Oaks pool. On Saturday, a supervisor tried several times to contact him via radio and received no response. The supervisor found Miller at his duty station apparently vomiting into a bucket and suspected he may have been intoxicated or under the influence of something. A park ranger was called to the scene, and the ranger was also of the opinion Miller was under the influence. A breathalyzer test administered to him indicated there was no alcohol present in Miller's breath. At noon that day, Miller's girlfriend called his supervisor to advise she was taking Miller home because he was sick with the flu.

¶3 Following this incident, Park Superintendent David Fischer and Miller's immediate supervisor Diane Gildemaster met to discuss the incident and Miller's recent performance. Over the previous six months, his productivity had declined, and he had accidents using large machinery resulting from poor judgment, which raised safety concerns. In addition, he began to heavily use vacation time and sick leave for single days, usually Mondays and Fridays, without advanced planning. This led Miller's supervisors to be concerned he was involved in alcohol or substance abuse. His poor performance over the prior six months, coupled with the Labor Day weekend incident "began to paint a picture of a question ... as to whether Steve was physically fit to handle his responsibilities as a park service worker."

¶4 The matter was discussed with Miller at a meeting on September 9, where he admitted he had a drinking problem and had been through treatment in July which had helped a little but had not solved the problem. ² Restrictions were placed on his use of sick leave (only upon advanced notice and with a physician's approval), and vacation (he could not take vacation on Mondays or Fridays). Miller was also informed he would be required to undergo a fitness-for-duty physical (which would include a screening test to detect the presence of alcohol and drugs) to determine if he was physically able to perform his job responsibilities. Miller was found to be fit for duty, but the physician who conducted the exam recommended additional measures to check his alcohol and drug use. At the September 9 meeting, he was also advised that continued poor performance or failure to comply with the additional requirements could result in termination.

¶5 On October 12, 1994, Park Superintendent Fischer sent a memorandum to Miller identifying three additional requirements:

1. You are drug and alcohol-free at all times while on duty.

2. For the next 90 days, you submit to drug/alcohol screening on the request of management.

3. You submit to an assessment through the Employee Assistance Program (EAP) and make the results and recommendations from the assessment available to the Personnel Department. The assessment appointment will be scheduled by City management.

Miller was informed that failure to comply with these requirements would be cause for termination. He signed the memo on October 13, 1994. This memo in effect established the conditions for a 90-day probationary period.

¶6 Miller participated in the EAP program and again began out-patient counseling to address his alcoholism. On Monday, November 14, 1994, an unannounced alcohol and drug test was administered to Miller. A few days later, Sioux Falls management was advised the test was positive for the presence of cocaine. On November 17, Miller was advised of the test results, and suspended without pay until further notice. He admitted to his immediate supervisor his alcohol consumption was affecting his job performance, and admitted to using cocaine (a felony in South Dakota punishable by five years in prison). Sioux Falls directed Miller to meet with his counselor on that day, which he did. His counselor recommended he obtain in-patient treatment. That Saturday, November 19, Miller was admitted into a 30-day treatment program.

¶7 On Wednesday, November 23, Park Superintendent Fischer and Sioux Falls' personnel officer went to the treatment center to conduct a pre-termination meeting. They met with Miller and his counselor. The counselor advised that Miller's alcoholism was a very serious, long-term problem which would be a daily battle. The counselor also advised that Miller abused alcohol and illegal drugs and was also addicted to video lottery, making it difficult for him to function. ³ Following the meeting, it was decided Miller would be terminated. Apparently, there was no written notice of discharge setting forth the basis for Miller's termination.

¶8 Miller filed a grievance requesting a hearing before the Sioux Falls Civil Service Board (Board) to determine if there was just cause for his dismissal. At the hearing, Miller admitted he had violated the restriction requiring him to be drug- and alcohol-free while on duty. He further conceded he understood his use of alcohol or drugs while off-duty could cause residue to remain in his bloodstream and affect him when on-duty. Finally, he testified he understood the condition of probation prohibited alcohol or drug use while off-duty, but claimed he was powerless to control his use. The Board made the following findings:

V.

[Miller] has admitted that he is an alcoholic and that he has used drugs.

VI.

[Miller] at all times material herein is capable of performing the essential functions of his job.

VII.

[Miller] never consumed alcohol nor used drugs while on duty with the City of Sioux Falls.

VIII.

[A]lcoholism is a disease which causes a disability.

IX.

[Miller's] violation of the conditions contained in the October 12, 1994 Memorandum from the City of Sioux Falls was caused by his disability.

Based on these findings, the Board concluded there was no just cause for Miller's termination, and entered an order reinstating him. The circuit court affirmed and Sioux Falls appeals.

STANDARD OF REVIEW

¶9 As this case involves an appeal of the decision of the Sioux Falls Civil Service Board, an administrative agency, ⁴ our review is governed by SDCL 1-26-37:

An aggrieved party or the agency may obtain a review of any final judgment of the circuit court under this chapter by appeal to the Supreme Court. The appeal shall be taken as in other civil cases. The Supreme Court shall give the same deference to the findings of fact, conclusions of law and final judgment of the circuit court as it does to other appeals from the circuit court. Such appeal may not be considered de novo.

"In appeals from administrative agencies, when the issue is a question of law, the decisions of the agency and the circuit court are fully reviewable. When the issue is a question of fact, this court determines whether the agency's findings are clearly erroneous." Boyles v. South Dakota Div. of Criminal Investigation, 444 N.W.2d 727, 728 (S.D.1989) (citation omitted).

ISSUES

¶10 I. Did the Board and the circuit court err in concluding that Sioux Falls lacked just cause to terminate Miller?

¶11 Sioux Falls argues its termination of Miller was supported by its ordinances relating to discharge of its employees. Miller believes that his violation of the conditions of his probation was caused by his alcoholism, a disability, and that he was fired for reasons relating to this disability. This first issue requires us to focus only on whether Miller's termination was consistent with the causes for which a Sioux Falls municipal employee may be terminated.

¶12 Whether the facts and circumstances surrounding an employee's termination are sufficient to constitute just cause is fully reviewable. Kleinsasser v. City of Rapid City, 440 N.W.2d 734, 737 (S.D.1989). "The standard for determining whether misconduct rises to the level which justifies discharging an employee is lower than that which determines whether an employee's misconduct will deprive him of unemployment compensation." Id. (citation omitted). According to SDCL 9-14-15, a civil service employee such as Miller "may be removed only pursuant to the provisions of the ordinance." Thus, the issue is whether the admitted misconduct of Miller was sufficient to be considered just cause for termination under the ordinance.

¶13 The ordinance at issue here is Ordinance 30-46, relating to the causes for removal, discharge or suspension of a Sioux Falls municipal employee. It states in relevant part:

The following will be considered as cause for discharge, suspension, or reduction of an officer or employee in the classified civil service, although discharges, suspensions, or reductions may be made for other causes:

. . . . .

(4) Has violated any lawful and reasonable official regulation or order, or failed to obey any lawful or reasonable direction made and given by his superior officer, where such violation or failure to obey amounts to an act of insubordination or a serious breach of proper discipline, or resulted or reasonably might be expected to result in loss or injury to the city, or to the public, or to the prisoners or wards of the...