Green v. City of Sioux Falls

• Decision Date: 01 March 2000
• Docket Number: No. 20982, No. 21000.
• Citation: 607 N.W.2d 43,2000 SD 33
• Parties: Michael GREEN, Grievant and Appellant, v. CITY OF SIOUX FALLS, Appellee.
• Court: South Dakota Supreme Court

607 N.W.2d 43

2000 SD 33

Michael GREEN, Grievant and Appellant, v. CITY OF SIOUX FALLS, Appellee.

Nos. 20982, 21000.

Supreme Court of South Dakota.

Argued January 13, 2000.

Decided March 1, 2000.

Thomas K. Wilka of Hagen, Wilka & Archer, P.C., Sioux Falls, for grievant and appellant.

R. Shawn Tornow, Chief Assistant City Attorney, Sioux Falls, for appellee.

KONENKAMP, Justice

[¶ 1.] Michael D. Green, a Sioux Falls police officer discharged for conduct unbecoming an officer, contends the evidence against him was insufficient to constitute just cause. Based on the findings made by the Civil Service Board, we affirm.

A.

[¶ 2.] Green began his employment as an officer with the Sioux Falls Police Department in January 1995. He received annual performance evaluations. In 1996, his performance was graded as "above average" or "superior" in every category. His supervisor later described him as an "above average officer and an asset to the department." The 1997 evaluation reported that Green worked well with the public and other officers, but that he did "need to work on some things in the next year" including "more self control when dealing with unruly people." Police Chief Clark L. Quiring hand wrote on Green's 1997 evaluation, "I expect that you will correct these problems by next evaluation."

[¶ 3.] Within six months, two incidents occurred that led to Green's termination. The first happened during his shift on April 24, 1998. Green and another officer responded to a call on an individual believed to be passing forged checks. The suspect was arrested and transported to the Minnehaha Public Safety Building. Green and the other officer led the prisoner, whose hands were cuffed behind his back, to the booking area and had him sit on a bench. Repeatedly the prisoner accused Green of hitting him and splitting his lip.¹ Green turned to argue with him. As the exchange escalated, Green stepped toward the prisoner. The prisoner stood up. Green shoved him hard against the wall. When the prisoner became more agitated, two other officers stepped in to help secure him with leg irons. While restraining him, Green put his knee on the back of the prisoner's neck and sat on him, a maneuver deemed overly aggressive and not acceptable under departmental procedure.

[¶ 4.] Following an internal investigation, the department concluded that Green acted improperly, exacerbating a verbal confrontation into a physical scuffle with a restrained prisoner. Green was found to have violated departmental Policy § 204.2.C: use of force resulting in or reasonably expected to result in injury to a prisoner. Although the violation could have been considered just cause for discharge, suspension, or reduction, Green was informed he would receive a written reprimand on June 2, 1998.

[¶ 5.] The second incident happened two days later. On June 4, visiting police officers from communities both in and out of South Dakota were attending a DEA sponsored drug enforcement school in Sioux Falls. Green did not attend. But that evening, along with other off-duty Sioux Falls officers, he met the visiting officers for an evening out. Some of the out-of-towners wanted to see a "problem" bar. The group of sixteen officers headed to a place under police scrutiny as a "hot spot" for drug dealing. Nothing significant occurred there.² About midnight, they moved on to Suite E, a bar with a dance floor. When they arrived there were only a few customers present. A woman and two men, Lonnie Kannas and Richard Pepper, were dancing in a "triangle formation." When the woman returned to her table, the men continued to dance. Green stepped onto the dance floor along with some of the other officers.

[¶ 6.] According to the allegations against him, to taunt the two men he thought were homosexual, Green danced between them, turned his back to Pepper, and backed up to him bent over at a ninety degree angle in what Kannas later characterized as a "mock anal sex dance." Later, Kannas overheard someone in Green's group say, "Are you going to a fag party or a homo party?" Suite E began closing for the evening. Some of the officers headed for Shenanigans, but "due to a miscommunication," six Sioux Falls officers, including Green, went to Skelly's. With "not much going on" there, they moved on.

[¶ 7.] Out of "curiosity," the six officers chose Touche'z, a "gay bar," for their last stop of the evening. The officers knew that homosexual members of the community patronize this dance club. Coincidentally, Kannas and Pepper, the men Green encountered at Suite E, arrived at the same time. When he saw the group, Kannas went inside to warn the owner "about the possible problems that might be coming through the door."

[¶ 8.] Some of the officers walked into Touche'z carrying open beer bottles. Green had two. One member of the group went to the bar; the rest sat at a table. The owner, Douglas Kooiker, told those at the table that they could not bring in their own beer. According to Kooiker, Green asked if they could still drink them. Kooiker responded that he would have to take their bottles. When he removed them and turned to walk away, Kooiker heard someone at the table exclaim, "Asshole, fucking fags." He identified Green as making the comment because he recognized Green's voice from just having spoken with him. Kooiker disposed of the bottles and returned to say, "It's time for you guys to leave." They immediately complied, getting up and walking toward the door.³ Kooiker heard Green comment while facing him, "Got kicked out of a fag bar."

[¶ 9.] Once outside, they realized that one of their companions was still inside. Green and another officer went back in. While the other officer searched for the one left behind, Green walked into the game room and picked up a pool cue. In front of the customers, he broke it over his knee, and left the broken pieces on the floor. Kooiker, who had no idea these men were police officers, dialed 911 for emergency assistance. The group left before the police arrived. Kooiker gave the license plate numbers of the vehicles driven by the group to the responding officers, and from that it was learned that Green and the other officers were involved.

[¶ 10.] Following a preliminary inquiry, Green was suspended on June 15, 1998, pending a full investigation. On June 19, Chief Quiring decided that, based on all the circumstances, Green should be discharged. Green appealed to the Civil Service Board. After a hearing on July 9-10, 1998, the Board found just cause for Green's termination. Green's appeal in circuit court was affirmed.

[¶ 11.] On appeal before this Court, Green contends his discharge was based on allegations unfounded or unsupported by "conclusive evidence." We review the Civil Service Board's decision under the Administrative Procedures Act (SDCL 1-26). SDCL 9-14-14. Fact findings will be overturned only if they are "clearly erroneous in light of all the evidence." Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228. Questions of law are reviewed de novo. Id. By notice of review, the City appeals certain evidentiary rulings made by the Board. As our decision affirms the City's position, however, we need not reach these nondispositive questions.

B.

[¶ 12.] Several of the reasons given by Chief Quiring for Green's termination were not borne out in the Civil Service Board's findings. Green believes that the failure of the Board to sustain all the Chief's reasons for firing him make the decision invalid, especially since he contends that most of the remaining reasons accepted by the Board were mistaken. As the Board was the final arbiter in deciding Green's discipline, we examine the Board's findings to ascertain if just cause for termination was established. Sioux Falls Code § 30-45 provides that "[n]o person ... shall be suspended, removed, discharged or reduced from his position, except for just cause[.]"⁴ The Board held that just cause existed for the disciplinary action under Sioux Falls Code § 30-46(5):

The following will be considered as causes 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:

(5) Has been guilty of acts constituting... any conduct unbecoming an officer or employee of the city[.]

[¶ 13.] "Conduct unbecoming an officer" is not defined in the Sioux Falls Code or in any South Dakota statute. The term originates from military law, codified in Article 133, Uniform Code of Military Justice, 10 U.S.C. § 933 ("conduct unbecoming an officer and a gentleman"). In its prevailing usage, conduct unbecoming an officer imports a dual significance. Not only must the behavior be a serious breach of law, morality, or decorum, exposing the offender to personal discredit, but also it must tend to bring dishonor or disrepute on the offender's profession or organization. Parker v. Levy, 417 U.S. 733, 753-54, 94 S.Ct. 2547, 2560, 41 L.Ed.2d 439, 456 (1974) (citing W. Winthrop, Military Law and Precedents 711-712 (2d ed. 1920), as cited in United States v. Howe, 17 USCMA 165, 177-178, 37 C.M.R. 429, 441-442, 1967 WL 4286 (1967)). In the military model, service in the armed forces requires obedience, integrity, and adherence to high standards of conduct both in and out of uniform. These standards apply as well to police forces. To maintain both internal discipline and public respect, law enforcement organizations must eliminate behavior reasonably thought to impede proper performance of duties. See Goldwasser v. Brown, 417 F.2d 1169, 1176 (D.C.Cir.1969).

[¶ 14.] Other authorities have devised similar definitions for conduct unbecoming, although these definitions are often stated in the disjunctive. For instance, the Arkansas State Police Code of Conduct defines "conduct unbecoming" as including "that which brings the Department into disrespect or reflects discredit upon the employee as a...