Iowa Dept. of Revenue v. Iowa Merit Employment Commission

• Decision Date: 30 June 1976
• Docket Number: No. 2--57254,2--57254
• Citation: 243 N.W.2d 610
• Parties: IOWA DEPARTMENT OF REVENUE, D. G. Briggs, Director, Appellee, v. IOWA MERIT EMPLOYMENT COMMISSION et al., Appellants, Joseph Hottes, Intervenor-Appellant.
• Court: Iowa Supreme Court

Page 610

243 N.W.2d 610

IOWA DEPARTMENT OF REVENUE, D. G. Briggs, Director, Appellee, v. IOWA MERIT EMPLOYMENT COMMISSION et al., Appellants, Joseph Hottes, Intervenor-Appellant.

No. 2--57254.

Supreme Court of Iowa.

June 30, 1976.

Rehearing Denied July 26, 1976.

Larry L. Seckington, Urbandale, for appellants.

Richard C. Turner, Atty. Gen., George W. Murray, Sp. Asst. Atty. Gen., Harry M. Griger and Donald H. Capotosto, Asst. Attys. Gen., for appellee.

Gordon E. Allen, Des Moines, for intervenor-appellant.

Heard by REYNOLDSON, Acting C.J., and MASON, RAWLINGS, REES, and HARRIS, JJ.

RAWLINGS, Justice.

Appeal by respondents (defendants) Iowa Merit Employment Commission members and intervenor Joseph Hottes from trial court adjudication in certiorari proceeding holding defendant Commission exceeded its proper jurisdiction in entertaining Hottes' appeal from his discharge by petitioner (plaintiff) Iowa Department of Revenue Director. We affirm trial court.

Hottes was a probationary employee in the Iowa Department of Revenue (Department). April 24, 1973, his employment as a 'Research Analyst II' was terminated.

July 21, 88 days after dismissal, Hottes appealed to defendant Iowa Merit Employment Commission (Commission), thereby seeking reinstatement and back pay. His appeal was based 'on the fact that I was forced to resign by the appointing authority (Department) due to political discrimination and non-meritorious factors.'

September 12, the appellate agency held:

'It is the decision of the Merit Employment Commission that there has been established by Mr. Hottes a prima facie case of political discrimination and it is directed that Mr. Hottes be restored to his former class of position. That Mr. Hottes serve the remaining part of his probationary period before he be granted or not granted permanent status in accordance with the Merit Act. That Mr. Hottes not be given back pay for the period of time since his termination, May 15, 1973, because of his highly questionable acts referred to as 'immaturity--he who asks equity must do equity."

September 21, Department commenced certiorari proceedings in Polk District Court alleging Hottes' appeal to Commission was untimely because not taken within 30 days from date of his discharge. Department asserted Commission was therefore without jurisdiction to entertain Hottes' appeal. Alternatively, it alleged Commission's finding of 'a prima facie case of political discrimination' lacked support in the record. Upon these grounds it was contended Commission exceeded its proper jurisdiction or otherwise acted illegally.

September 27, Hottes was granted leave to intervene in the aforesaid certiorari action. His petition asserted Commission properly ordered he be reinstated, but incorrectly denied him back pay.

Hearing on petitioner's certiorari action ensued.

March 26, 1974, trial court vacated the Commission proceedings and in so doing found: (1) Commission lacked jurisdiction to entertain Hottes' appeal because it was not taken within 30 days from termination as required by Code § 19A.14; (2) the statutory 30 day appeals limitation cannot be extended to 90 days by administrative fiat, as rule 12.6(19A), I.D.R. (1973), at 650 purports to do; therefore, (3) Hottes' appeal to Commission should have been dismissed for want of jurisdiction.

By virtue of the foregoing trial court did not rule on Department's alternate claim that Commission's findings lacked evidentiary support.

One major issue is presented for review: Was Hottes' appeal to Commission timely? Subsidiary questions involved are: (1) Is Department estopped to deny the validity of merit employment rule 12.6(19A), which allowed 90 days for appeal from discriminatory discharge of employees and (2) if so, is Hottes entitled to back pay?

I. In support of trial court's adjudication Department leans heavily on § 19A.14, The Code 1973, which provided, to the extent here relevant:

'Any employee who is discharged, suspended, or reduced in rank or grade, Except during his probation period, may appeal to the appointing authority and if not satisfied, May, within thirty days after such discharge, reduction or suspension Appeal to the commission for review thereof. * * * If the commission finds that the action complained of was taken by the appointing authority for any political, religious, facial, national origin, sex, age or nonmerit reasons, the employee shall be reinstated to his former position without loss of pay for the period of the suspension. * * *.' (emphasis supplied).

Defendants concede the words 'except during his probation period' remove Hottes from the scope of § 19A.14. Further invoked, however, is § 19A.18 which then stated in pertinent part:

'No person shall be appointed or promoted to, or demoted or discharged from, any position in the merit system, or in any way favored or discriminated against with respect to employment in the merit system because of his political or religious opinions or affiliations or race or national origin or sex, or age.'

Defendants then conclude 'A careful reading of (§§ 19A.14 and 19A.18) does not reveal any time limitation for appeal from political discrimination by a probationary employee.' It is attendantly urged the limitation for Hottes' appeal is thus prescribed by rule 12.6(19A), I.D.A. (1973), at 650:

'Any applicant or employee who has reason to believe that he has been discriminated against because of religious or political opinions or affiliations or race or national origin or any other nonmerit factor in any personnel action including denial of transfer, may appeal to the commission. Such appeal shall be filed in writing And within 90 calendar days of the alleged discrimination. The commission shall hear the appeal at its next regularly scheduled meeting, or at special meeting as the commission shall direct, and give its written decision within seven calendar days of the hearing date.' (emphasis supplied).

Reduced to bare essentials, defendants fabricate a 'statutory void', then attempt to fill same by misplaced reliance on rule 12.6(19A), quoted above. They initially urge Code chapter 19A singles out unfair discriminatory employment practices for special treatment. It is supportively contended Code § 19A.14, Supra, imposes a 30 day appeal limitation for discharge, suspension, or reduction in rank, Generally. Then, the argument continues, Code § 19A.18, barring discriminatory discharge of any person within the merit system, prescribes no appeal time limitation. Based upon the 'internal structure' of these statutes, defendants conclude 'it is obvious that an employee victimized by political discrimination is entitled to special treatment, which should and does include a longer time limitation for appeal by virtue of Merit Rule 12.6, which allows an employee to appeal from political discrimination for ninety calendar days.'

As revealed Infra, the foregoing contention is devoid of substance.

II. Department has conceded a probationary employee does have the right to appeal his or her discharge when discrimination is involved. For reasons hereafter stated, however, this concession is accorded no force or effect.

While an administrative agency's construction of statutes and the rules it administers is entitled to weight, '(a)n administrative body may not make law or change the legal meaning of the common law or the statutes.' Holland v. State of Iowa, 253 Iowa 1006, 1010, 115 N.W.2d 161, 164 (1962). Phrased otherwise, this court is not bound by Department's views regarding Code chapter 19A.

The only apparent explanation advanced for asserting a probationary employee has the right to appeal his or her discriminatory discharge stems from § 19A.18, quoted Supra, which says, in part, no person shall be discharged because of 'political * * * opinions or affiliations * * *.' Assuming, for purpose of discussion only, 'no person' means 'no permanent Or probationary employee', the question raised is whether the legislature intended probationers have appellate rights when discharged for discriminatory reasons and if so, whether rule 12.6(19A), Supra, effectively confers such rights.

Apparently plaintiff and defendants have both overlooked § 19A.9(8), The Code 1973, which says:

'The merit employment commission shall adopt and may amend rules for the administration and implementation of this chapter in accordance with chapter 17A. The director shall prepare and submit proposed rules to the commission. The rules shall provide:

'* * *

'8. For a probation period of one year, excluding educational or training leave, before appointment may be made complete, and during which period a probationer may be discharged or reduced in class or rank, or replaced on the eligible list. The appointing authority shall within ten days prior to the expiration of an employee's probation period notify the director in writing whether the services of the employee have been satisfactory or unsatisfactory. If the employee's services are unsatisfactory, he shall be dropped from the payroll on or before the expiration of his probation period. If satisfactory, the appointment shall be deemed permanent. The determination of the appointing authority shall be final and conclusive.' (emphasis supplied).

The last sentence, Supra, militates strongly against defendants. In other words, the legislature thereby generally expressed the intention that probationary employees have no appeal right. See also rule 9.2(19A), I.D.R. (1973), at 645; III Iowa Administrative Code (1975), rules 570--8.2(19A), ch. 8 at 1, 570--9.2(19A), ch. 9 at 1.

In this area statutes which label administrative action as 'final' have been held to bar review by direct appeal, provided the administrative body or official has jurisdiction over the parties and subject matter in controversy. See County Board of Education v. Parker, 242 Iowa 1, 7--10, 45 N.W.2d 567 (1951), and citations.

Also, Code § 19A.14, Supra, manifestly afforded a...