Deuter v. South Dakota Highway Patrol

• Decision Date: 02 March 1983
• Docket Number: No. 13565,13565
• Citation: 330 N.W.2d 533
• Parties: In the Matter of the Grievance of Terry DEUTER, Grievant and Appellant, v. SOUTH DAKOTA HIGHWAY PATROL, Employer and Appellee.
• Court: South Dakota Supreme Court

Page 533

330 N.W.2d 533

In the Matter of the Grievance of Terry DEUTER, Grievant and Appellant, v. SOUTH DAKOTA HIGHWAY PATROL, Employer and Appellee.

No. 13565.

Supreme Court of South Dakota.

Argued Feb. 23, 1982.

Decided March 2, 1983.

Max A. Gors of Maher, Gors & Dean, Pierre, for grievant and appellant.

Jeffrey P. Hallem, Asst. Atty. Gen., Pierre, for employer and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

HENDERSON, Justice.

ACTION

Appellant Terry Deuter, a trooper for the South Dakota Highway Patrol (Highway Patrol), received a notice of discharge from appellee, the Highway Patrol. An appeal was made to the Law Enforcement Civil Service Commission (Commission), and the Commission decided to reinstate appellant as a trooper. The Highway Patrol appealed to the circuit court, and the circuit court reversed the Commission's decision. Appellant appeals from the circuit court's order. We reverse and remand.

FACTS

After a meeting on January 9, 1980, appellant was notified on January 15, 1980, that he was discharged from the Highway Subsequent to receiving notice of his discharge, appellant filed a notice with the Law Enforcement Civil Service Commission contending that his discharge was made without just cause. A three-day hearing was conducted by the Commission and approximately 36 witnesses testified. As a result, the Commission found that appellant's discharge was made without good or just cause and ordered him reinstated as a trooper. Findings of fact made by the Commission include the following: all of appellant's drug arrests resulted in convictions; appellant had three preventable accidents in his patrol vehicle; appellant has not had any more accidents since attending a special driving course; appellant had not displayed poor judgment; appellant responded to the efforts of his supervisors to counsel him; appellant met or exceeded the performance standards established by the Highway Patrol; the reprimand given to appellant was not clear; appellant did not improperly threaten a juvenile with bodily harm; appellant did not act carelessly or capriciously when he placed a firearm on Director Baum's desk; and appellant was effective and aggressive as a trooper and treated everyone equally and fairly.

                Patrol pursuant to SDCL 3-7-15. 1  The grounds for appellant's discharge were:  a) violating Highway Patrol regulations (SDCL 3-7-15(5));  b) insubordination for failure to obey superior officers (SDCL 3-7-15(5));  and c) disgraceful conduct and insubordination (SDCL 3-7-15(10)).  As a factual basis for appellant's discharge, the Highway Patrol alleged:  a) on March 31, 1979, appellant allowed an armed 18-year-old individual to ride in his patrol vehicle.  Appellant was reprimanded for this incident on May 30, 1979;  b) on December 7, 1979, appellant allowed an armed civilian to accompany him in his patrol vehicle;  c) on December 18, 1979, appellant threatened a juvenile with possible bodily harm;  d) on January 9, 1980, appellant capriciously and recklessly placed a loaded pistol on Director Baum's desk;  and e) appellant continually displayed poor judgment
                

The Highway Patrol appealed the Commission's decision to the circuit court. After reviewing the evidence and hearing oral arguments, the circuit court reversed the Commission, holding that the Commission's findings of fact and conclusions of law were clearly erroneous, arbitrary and capricious, or an abuse of discretion. Findings of fact and conclusions of law were not entered by the circuit court. Appellant has appealed to this Court.

ISSUE

WERE THE FINDINGS OF FACT AND CONCLUSIONS OF LAW ENTERED BY THE LAW ENFORCEMENT CIVIL SERVICE COMMISSION CLEARLY ERRONEOUS AND ARBITRARY OR CAPRICIOUS OR CHARACTERIZED BY AN ABUSIVE AND CLEARLY UNWARRANTED EXERCISE OF DISCRETION? WE HOLD THAT THEY WERE NOT.

DECISION

Appellant Deuter contends that the circuit court erred in reversing the Commission's ruling. Actions involving the Commission are governed by SDCL ch. 1-26, the "Administrative Procedures Act." Drovdal v. State Dep't of Pub. Safety, 255 N.W.2d 437 (S.D.1977). When we are called upon to review an administrative agency ruling such as the one at bar, we are guided by SDCL 1-26-35 and SDCL 1-26-36. ² 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 and definite conviction that a mistake has been made. 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 South Lincoln Rural Water Sys., 295 N.W.2d 743 (S.D.1980).

Appellee Highway Patrol contends that the Commission does not have the power to make an independent determination into whether the discharge of appellant Deuter was proper. According to the Highway Patrol, the Commission is, in essence, a limited appeals forum which is constrained to determine if evidence exists to support the Highway Patrol's decision. On the other hand, appellant Deuter asserts that the Commission proceeding was a de novo due process hearing.

Statutory authority for Commission jurisdiction over Highway Patrol disciplinary action is derived from SDCL 3-7-17. ³ In Drovdal, 255 N.W.2d at 439, we held: "The function of the Commission under SDCL 3-7-17 is merely to determine whether or not the removal, discharge, or reduction was made for good cause under the provisions of SDCL 3-7-15." However, in Drovdal, we addressed a situation where the Commission found that good cause existed for dismissal of a trooper, but then reduced the level of disciplinary action taken by the Highway Patrol. Therefore, Drovdal stands for the proposition that the Commission does not have authority to modify the type of disciplinary action taken by the Highway Patrol. Rather, the function of the Commission is to conduct a hearing comporting with due process requirements to determine if good cause exists for the disciplinary action of the Highway Patrol. If good cause is not found, the Commission must order reinstatement of the employee with back payment of wages. SDCL 3-7-17, supra.

However, our decision in Drovdal should not be read to restrict the fact-finding duties and responsibilities of the Commission. See Appeal of Miller, 283 N.W.2d 241 (S.D.1979).

Procedurally, the Highway Patrol meeting held with Trooper Deuter on January 9, 1980, was not conducted in the posture of a due process hearing. Appellant was provided with only two day's notice prior to the January 9 meeting. Trooper Deuter was not given the right to produce or confront witnesses. We deem this inadequate to satisfy a due process hearing. Indeed, charges against appellant Deuter were not drawn up until after the January 9 meeting. Under the Fourteenth Amendment to the United States Constitution, an individual is entitled to due process of law before his life, liberty, or property is taken away by the government. Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977) (per curiam); Morrissey v. Brewer 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Sniadach v. Family Fin. Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Holland v. Parker, 332 F.Supp. 341 (D.S.D.1971), rev'd, 469 F.2d 1013 (8th Cir.1972).

When the Highway Patrol discharges an employee for reasons such as listed herein, that employee is entitled to a due process hearing to contest the allegations made against him and clear his reputation. See generally, Nowak, Rotunda, and Young, Constitutional Law at 488 (1978). Under SDCL 3-7-17, the Commission is a proper forum for the employee's due process hearing. Therefore, we are unwilling to restrict the role of the Commission in the manner prescribed by the Highway Patrol. The Commission proceeding held herein was appellant's initial due process hearing and, as such, the Commission acted de novo.

Reviewing the extensive transcript and tapes of the Commission's hearing, we find that Trooper Deuter's employment performance was well canvassed (three days of hearing, 36 witnesses, 28 exhibits) and the Commission's findings and conclusions are sufficiently supported. In particular, the Commission's determination that Trooper Deuter's reprimand was unclear was strongly supported. Lt. Ken Rand, one of Trooper Deuter's immediate superiors stated that the Highway Patrol manual and policies did not prohibit passengers from having firearms. Indeed, Lt. Rand stated that when he explained Trooper Deuter's reprimand to him, Trooper Deuter was only told not to have unauthorized riders. Lt. Rand admitted that he did not admonish Trooper Deuter to not allow authorized riders to carry firearms. Lt. Rand himself acknowledged that Trooper Deuter could have misunderstood his reprimand.

Director Baum admitted that the Highway Patrol policy cited in Trooper Deuter's reprimand did not prohibit passengers from carrying firearms. The Director also admitted that the reprimand did not state that Trooper Deuter's future authorized passengers could not carry firearms and that Trooper Deuter could have misinterpreted the reprimand. Sgt. Printup, another immediate superior to Trooper Deuter stated that after the reprimand, Trooper Deuter was only instructed that he was not to have unauthorized passengers.

Richard Siedschlaw, a former ten-year veteran of the Highway Patrol testified that authorized and unauthorized armed civilians rode with him in his vehicle. Curt Hakl, a trooper from Elk Point, who formerly was assigned to Murdo, testified that on one occasion an armed civilian was allowed to ride in his vehicle. James Pelle, a trooper assigned to Murdo, testified that on one occasion he allowed an unauthorized civilian to ride with him and that his sergeant...