Dolan v. CIVIL SERVICE COM'N OF DAVENPORT

• Decision Date: 10 October 2001
• Docket Number: No. 99-0466.,99-0466.
• Citation: 634 N.W.2d 657
• Parties: Robert E. DOLAN, Appellee, v. CIVIL SERVICE COMMISSION OF the CITY OF DAVENPORT, Appellant.
• Court: Iowa Supreme Court

634 N.W.2d 657

Robert E. DOLAN, Appellee, v. CIVIL SERVICE COMMISSION OF the CITY OF DAVENPORT, Appellant.

No. 99-0466.

Supreme Court of Iowa.

October 10, 2001.

Mary J. Thee, City Attorney, Davenport, for appellant.

Dennis D. Jasper of Stafne, Lewis, Jasper, Bettendorf, for appellee.

CADY, Justice.

Robert Dolan was discharged from his position as a member of the city of Davenport's Fire Department for past and current misconduct. The district court reversed the decision by the Civil Service Commission to affirm the discharge, and ordered reinstatement. On our de novo review, we reverse the decision of the district court and reinstate the Civil Service Commission's termination decision.

I. Background Facts and Proceedings.

Robert Dolan was a firefighter for the city of Davenport. He had worked for the city for fifteen years, and held the position of an engineer. He was responsible for driving the fire engine to the fire scene. Dolan was described as an "excellent" firefighter by several of his colleagues. Yet, despite his commendable on-the-job record, Dolan had a bleak disciplinary history.

Dolan had been suspended on four previous occasions. On April 21, 1986, he received a two-day suspension for an off-duty arrest for operating while intoxicated (OWI). From April 22, 1987 to October 1, 1987, he was suspended for failing to have a driver's license due to his habitual violator status. On April 22, 1996, Dolan received a one-day suspension for arriving late to work on three occasions within the last year. This conduct violated the department's tardiness policy. Dolan was again suspended for five days on November 18, 1996, following an arrest for harassment. This charge was based on inappropriate and threatening comments Dolan made to a pizza delivery woman. He was intoxicated at the time.

Dolan was discharged for conduct that occurred on April 11, 1997. While driving home on a snowy evening, Dolan lost control of his vehicle and slid into a ditch. A police officer witnessed the accident and saw Dolan flee the scene. Dolan claimed he walked from the scene to a friend's neighboring house to seek a ride home. Not long after Dolan arrived home, police officers came to his house to investigate the accident. Eventually, four officers arrived at the residence. Three of the police officers were from the LeClaire Police Department, while the other officer was a Scott County Deputy Sheriff. While questioning Dolan, the officers began to suspect he was intoxicated. After conducting field sobriety tests, one of the officers informed Dolan he was under arrest for OWI. Dolan then attempted to escape the custody of the police officers and refused to comply with the officers' orders. A struggle ensued, and two officers suffered minor injuries. Although he actively resisted arrest, Dolan was eventually handcuffed.

Dolan was charged with resisting arrest, interference with official acts, and OWI. Although the OWI and resisting arrest charges were subsequently dismissed, Dolan was adjudged guilty of interfering with official acts.

On April 15, 1997, prior to the disposition of the three criminal charges, the fire department chief informed Dolan he was discharged for misconduct in violation of Fire Department Rule 15.2. Rule 15.2 prescribed the general conduct expected of department members, and provided for punishment for conduct that disgraced the department. The fire chief's decision was based on the current incident of misconduct as well as on Dolan's extensive disciplinary history. In addition, the fire chief partially based the termination decision on the belief Dolan would likely lose his driver's license as a result of the OWI charge.

Following his discharge, Dolan voluntarily sought and successfully completed substance abuse treatment. Dolan's substance abuse counselor commended him for excelling in the outpatient treatment program and for recognizing the severity of his substance abuse problem in addition to controlling it.

On July 9, 1997, the Civil Service Commission upheld the fire chief's decision to terminate Dolan. Dolan appealed to the district court pursuant to Iowa Code section 400.27 (1997). An appeal was heard by the district court on January 29, 1999. It received evidence additional to that presented to the Commission. Three fellow firefighters testified to Dolan's superior competency as a firefighter. His substance abuse counselor testified Dolan had accepted responsibility for his prior actions, and he had been sober since completing the outpatient treatment program. Dolan acknowledged his sobriety and detailed his rehabilitation progress for the district court, which included his self-employment in the seamless gutter installation business.

The district court found Dolan's off-duty actions constituted misconduct in violation of Fire Department Rule 15.2, but held the misconduct was not sufficiently detrimental to the public interest to justify his termination. The court also found Dolan was a "recovering alcoholic [who] has finally recognized the underlying cause of his off-duty misconduct." Instead of termination, the court believed a several month suspension was the more appropriate sanction. However, the court construed section 400.27 to limit its review options to either affirm the Commission decision or reinstate Dolan. It determined it was not permitted to suspend Dolan. Consequently, the court reinstated Dolan as of the date of his discharge and awarded back pay compensation.

The Commission appeals. It argues the district court erroneously interpreted section 400.27 as limiting the district court's power of review, and urges us to find Dolan's misconduct warranted his discharge.

II. Supreme Court Standard of Review.

Our review of the decision by the district court is de novo. Iowa Code § 400.27; Sieg v. Civil Serv. Comm'n, 342 N.W.2d 824, 827 (Iowa 1983). Although we give weight to the findings of the district court, we are not bound by them. See Sieg, 342 N.W.2d at 828

; 5 C.J.S. Appeal and Error § 761(c), at 202 (1993). We confine our review to the record made in the district court. Johnson Mach. Works, Inc. v. Parkins, 171 N.W.2d 139, 145 (Iowa 1969). Thus, we do not receive new evidence. Id.; 5 C.J.S. Appeal and Error § 761(b), at 201. Additionally, we limit our review to the same issues that were raised in the district court. McKee v. McKee, 239 Iowa 1093, 1098, 32 N.W.2d 379, 382 (1948); 5 C.J.S. Appeal and Error § 761(b), at 201.

III. District Court Review.

Iowa Code section 400.27 provides for a "trial de novo" in the district court from an appeal of a commission decision. Iowa Code § 400.27. "When statutory language expressly provides for a trial... de novo, we believe this procedure must be distinguished from a review de novo." Sieg, 342 N.W.2d at 828 (emphasis added). There are significant differences between the two proceedings. See In re Huston, 263 N.W.2d 697, 699 (Iowa 1978)

. Ordinarily, in a review proceeding, the reviewing court is restricted to the record made in the lower tribunal. Sieg, 342 N.W.2d at 828; Mason v. World War II Serv. Compensation Bd., 243 Iowa 341, 344, 51 N.W.2d 432, 434 (1952). Conversely, in a trial de novo, the court hearing the case anew is permitted to receive evidence additional to that presented to the commission. Wilson-Sinclair Co. v. Griggs, 211 N.W.2d 133, 138-39 (Iowa 1973); Mason, 243 Iowa at 345,

51 N.W.2d at 434. Thus, a statute providing for a "trial de novo" in the district court contemplates a trial in the general meaning of the term, not merely a review of the agency proceeding. Mason, 243 Iowa at 345,

51 N.W.2d at 435; see Dunham v. Clayton, 470 N.W.2d 362, 367 (Iowa Ct.App.1991).

A trial de novo would also normally permit the district court to select the same remedies that were available before the commission. In the case of firefighters, the chief of the fire department may suspend, demote, or discharge a firefighter for misconduct. Iowa Code § 400.18, .19. On appeal, the commission may then "affirm, modify, or reverse any case on its merits." Id. § 400.27. Thus, the commission has the same disciplinary options as the chief. On further appeal to the district court the trial de novo takes place. Id. This would normally mean the district court would have the same disciplinary options as the chief and the commission. The district court in this case determined, however, that its review options were limited to affirming or reversing the decision made by the Commission to discharge Dolan. It concluded it had no authority to modify the Commission decision. The district court relied on that portion of section 400.27 which provides as follows:

In the event the ruling or decision appealed from is reversed by the district court, the appellant, if it be an employee, shall then be reinstated as of the date of the said suspension, demotion, or discharge and shall be entitled to compensation from the date of such suspension, demotion, or discharge.

Id. (emphasis added).

We conclude this sentence does not limit the scope of a district court's review under section 400.27. Instead, we find this sentence only pertains to the issues of when a reinstatement should take effect and back pay compensation.

In interpreting section 400.27, we must keep in mind the broad scope of the power granted to the district court in an appeal from a commission disciplinary decision. When the legislature provided for a trial de novo, it did not intend to limit the review to the record before the commission. See Mason, 243 Iowa at 345,

51 N.W.2d at 434; Dunham, 470 N.W.2d at 367. Instead, the objective of a trial de novo is to permit the district court to independently determine whether the sanction imposed by the commission was warranted. We would contravene the purpose of a trial de novo if we found section 400.27 prohibited district courts from modifying a commission decision. Moreover, the language of the disputed portion of the statute clearly...