Fraternal Order Police v. City of Yankton, #29203

• Court: Supreme Court of South Dakota
• Writing for the Court: GILBERTSON, Chief Justice
• Citation: 949 N.W.2d 412
• Parties: The FRATERNAL ORDER OF POLICE, VERMILLION LODGE NO. 19, YANKTON POLICE OFFICERS’ ASSOCIATION, Appellees, v. CITY OF YANKTON, South Dakota, Appellant.
• Decision Date: 16 September 2020
• Docket Number: #29203

949 N.W.2d 412

The FRATERNAL ORDER OF POLICE, VERMILLION LODGE NO. 19, YANKTON POLICE OFFICERS’ ASSOCIATION, Appellees,
v.
CITY OF YANKTON, South Dakota, Appellant.

#29203

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS MAY 27, 2020
OPINION FILED September 16, 2020

THOMAS K. WILKA, SARA E. SCHROEDER of Hagen, Wilka & Archer, LLP, Sioux Falls, South Dakota, Attorneys for appellees.

A. STEVENSON BOGUE of McGrath, North, Mullin & Kratz, P.C. LLO, Omaha, Nebraska, ROSS K. DEN HERDER of Den Herder & Hosmer Law Office Yankton, South Dakota, Attorneys for appellant.

GILBERTSON, Chief Justice

¶1.] The Department of Labor determined that sergeants in the Yankton Police Department are ineligible for membership in a collective bargaining unit because they have authority to hire or effectively recommend hiring decisions. The circuit court reversed that decision on appeal, determining sergeants did not have that authority. The City of Yankton appeals the circuit court's decision. We reverse.

Facts and Procedural History

[¶2.] In November 2017, the City of Yankton (the City) filed a Request for Unit Determination with the Department of Labor (the Department) to define the membership of the collective bargaining unit requested by the Fraternal Order of Police, Vermillion Lodge No. 19, Yankton Police Officers’ Association (the FOP). The FOP requested that its members include "[f]ull time members of the Yankton Police Department holding job titles of Police Sergeant, Police Corporal, Police Detective/Investigator, and Police Officers" and exclude "Chief of Police, Police Lieutenant, and all other civilian non-sworn employees." The City requested that Police Sergeants and Police Corporals also be excluded and argued that officers currently commissioned and enlisted in the South Dakota National Guard were similarly ineligible for membership.

[¶3.] Under SDCL 3-18-1(2), public employees eligible for membership in collective bargaining units do not include:

public employees having authority in the interest of the public employer to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other public employees, or the responsibility to direct them, or to adjust their grievances, or to effectively recommend such action, if in connection with the foregoing, the exercise of such authority

[949 N.W.2d 414

is not of a merely routine or clerical nature, but requires the use of independent judgment[.]

¶4.] The Department held a hearing in May 2018, at which Chief of Police Brian Paulsen, Sergeant Jason Foote, Sergeant Javier Murguia, Sergeant Monty Rothenberger, and Lieutenant Michael Burgeson (all members of the Yankton Police Department) testified. Chief Paulsen testified that the Yankton Police Department (YPD) rank structure consisted of the Chief of Police, two lieutenants, four sergeants, one corporal, and multiple patrol and investigations officers at that time, but he explained that the corporal rank was being phased out. He also described the hiring process at the YPD, which consists of a written standardized test with an essay portion graded by a lieutenant, a timed obstacle course, an informal interview with one sergeant and one patrol officer, a formal interview with a panel of four sergeants and one lieutenant, and a background check.

[¶5.] The formal interview panel scores candidates based on a point system of one through five. The panel members are required to give scores no more than two points apart from each other, and if points differ by too much, they discuss how to change the scores to fit the two-point rule. The candidates are ranked by their scores, and any tie in scores is broken by the candidate with the better obstacle course time. The ranked list then goes to the Chief of Police, whose practice is to go down the list making conditional offers of employment, although Chief Paulsen was unaware of any city policy dictating that the Chief must follow the list. The employment offers are conditioned upon the passage of a background check.

[¶6.] Chief Paulsen also testified to the powers given to sergeants. Sergeants are involved in transferring employees from patrol to investigations, scheduling shifts, and assigning squads, though a lieutenant or the Chief of Police has final approval. Sergeants do not have the power to lay off or recall a laid off employee. All members of the YPD can submit nominations for Officer of the Year, an award ultimately chosen by the previous year's winner; and all members can recommend commendations. Sergeants first complete officer evaluations. Then, the evaluations pass to lieutenants and to the Chief of Police for additional comments.

[¶7.] Chief Paulsen testified that there are times when a patrol officer is the highest-ranking officer on duty and in charge in the same way that a sergeant would be as the highest-ranking officer present. The Chief of Police and lieutenants typically work 8:00 a.m. to 5:00 p.m. Monday through Friday, so sergeants are the commanding officer approximately 128 hours per week. Lieutenant Burgeson estimated that a patrol officer is the commanding officer on duty around 15 percent of the year.

[¶8.] Sergeant Foote testified that as a sergeant there are times when he is the commanding officer on duty and that he must notify lieutenants or the Chief of Police when a serious or major incident happens. He also testified that a lieutenant could ask him to change his comments on officer evaluations, but it had never happened. Sergeant Murguia testified that he believed approximately 16 hours of every two-week period would have no sergeant on duty.

[¶9.] Sergeant Rothenberger testified about his involvement in most aspects of YPD's interview process and described the process similarly to Chief Paulsen's description. He explained that the informal interview, which determines which candidates move on to the formal interview, involves equal input from the sergeant and

[949 N.W.2d 415

patrol officer based on their gut feelings. He also testified that all sergeants schedule their squads in their own way.

¶10.] The parties submitted post-hearing briefs in which the FOP argued the sergeant's role under SDCL 3-18-1(2) is merely routine and/or clerical and does not require the exercise of independent judgment. The City countered that Chief Paulsen's testimony made clear that sergeants play a large part in YPD's hiring process. The Department filed its order on September 5, 2018, deciding that National Guard members and corporals are not precluded from membership in the bargaining unit, but sergeants are precluded from membership. The Department found while sergeants do not possess authority for most of the provisions of SDCL 3-18-1(2), they have authority to hire or effectively recommend hiring.

[¶11.] The FOP appealed the Department's order, asking for review of the Department's specific findings of fact and conclusions of law regarding sergeants’ authority to hire or effectively recommend hire. The City requested review of additional findings and conclusions pertaining to sergeants’ authority to suspend, discipline, or effectively recommend suspension or discipline. The circuit court heard oral argument in May 2019, and after finding error in some of the Department's findings and conclusions, the court entered its own findings of fact and conclusions of law in September 2019.

[¶12.] The circuit court affirmed the Department's determination...