Drovdal v. State Dept. of Public Safety, Division of Highway Patrol, 11995-

• Decision Date: 07 July 1977
• Docket Number: No. 11995-,11995-
• Citation: 255 N.W.2d 437
• Parties: Allen DROVDAL, Appellant, v. STATE of South Dakota, DEPARTMENT OF PUBLIC SAFETY, DIVISION OF HIGHWAY PATROL, Respondent. a.
• Court: South Dakota Supreme Court

Page 437

255 N.W.2d 437

Allen DROVDAL, Appellant, v. STATE of South Dakota, DEPARTMENT OF PUBLIC SAFETY, DIVISION

OF HIGHWAY PATROL, Respondent.

No. 11995-a.

Supreme Court of South Dakota.

July 7, 1977.

James Robbennolt, Duncan, Olinger & Srstka, Pierre, for appellant.

Donald Foreman, Asst. Atty. Gen., Pierre, William J. Janklow, Atty. Gen., Pierre, on brief, for respondent.

WUEST, Circuit Judge.

The appellant, Allen Drovdal, was a trooper with the South Dakota Highway Patrol. On October 31, 1975, he was given notice by the Superintendent of the Highway Patrol that he was being discharged for some thirteen incidents contrary to SDCL 3-7-15(5), (6) and (9). He was further notified that pursuant to SDCL 3-7-17 and Chapter 55:02:08 of the Civil Service Commission Rules and Regulations he could have a hearing before the State Police Civil Service Commission. The Commission held a hearing at which it found that appellant had spent the night in the home of a woman not his wife and had been observed in her company on other occasions, all of which had caused gossip and had resulted in embarrassment to other Highway Patrol officers in the vicinity; that he had violated specific orders and regulations regarding time on duty; and that he had falsified reports to show that he had worked on March 24, 1975, and had collected subsistence pay for working when in fact he had not worked that day. The commission specifically found that just and good cause existed for the discharge of appellant from the South Dakota Highway Patrol. However, the Commission entered a decision to reinstate appellant following a four-month suspension and placed him on probation without career service rights for a period of one year. The Department of Public Safety, Division of Highway Patrol, appealed the decision of the Police Civil Service Commission to the Circuit Court of Hughes County, claiming that the Commission had exceeded its statutory authority in setting aside the order discharging appellant and substituting a lesser penalty therefor. It was stipulated that the facts found by the Commission would be accepted as true. The Circuit Court of Hughes County reversed the Commission and entered its judgment directing the Commission to enter an order discharging appellant from the South Dakota Highway Patrol. We affirm.

SDCL 3-7 provides for the State Police Civil Service Commission and specifies its various powers and duties. Generally, those powers and duties apply to certain law enforcement personnel including the Division of Highway Patrol. Its duties include the classification of positions and grades of law enforcement personnel, designating grades for positions, lines of promotion, and efficiency standards and records and pay scales, together with examinations for new employment and promotions. SDCL 3-7-15 provides that "(n)o employee in the classified civil service of this state shall be removed, discharged, or reduced in rank or pay by the appointing officer, except for cause." It goes on to specify some seventeen grounds as just causes for discharge, suspension, or reduction.

Appellant was charged with SDCL 3-7-15, subsections (5), (6) and (9) which provide:

"(5) 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 state, or to the public, or to prisoners or wards of the state; or

(6) Has been guilty of any conduct unbecoming an officer or employee of this state; or

(9) Has been guilty of acts which amount to an act of insubordination or to disgraceful conduct, whether such conduct occurred while on duty or off duty * * *."

SDCL 3-7-16 provides that in the event of a removal, discharge, or reduction the appointing officer must make a written statement of the same with a copy personally delivered to the employee and the other copy filed with the Commission. Then, the statute in question, SDCL 3-7-17, provides:

"Every employee who has been removed, discharged, or reduced may within five days thereafter file with said commission a statement in writing, alleging that such removal, discharge, or reduction was made without just cause, and that he believes that upon a hearing he will be able to establish such fact. Upon the...