Kierstead v. City of Rapid City

• Decision Date: 22 December 1976
• Docket Number: No. 11704,11704
• Citation: 248 N.W.2d 363
• Parties: Roger KIERSTEAD, Grievant and Appellant, v. CITY OF RAPID CITY, Employer and Respondent.
• Court: South Dakota Supreme Court

Page 363

248 N.W.2d 363

Roger KIERSTEAD, Grievant and Appellant, v. CITY OF RAPID CITY, Employer and Respondent.

No. 11704.

Supreme Court of South Dakota.

Dec. 22, 1976.

Robert L. O'Connor, Sioux Falls, Harry H. Smith, Smith & Smith, Sioux City, Iowa, for grievant and appellant.

W. A. McCullen, Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for employer and respondent.

RIES, Circuit Judge.

Grievant-appellant Roger Kierstead filed a grievance with the South Dakota Department of Manpower Affairs, Division of Labor and Management Relations, alleging that he had been fired from his position as patrolman for the City of Rapid City, South Dakota, because he had completed an application for leave without pay incorrectly and requesting in the application that he wanted 'to be reinstated--records put back in order--back pay--salary for July and months until I am reinstated.' While language used in the statement of grievance concerned itself only with reinstatement and back pay, at the hearing before the Deputy Director, the grievant testified that when he was hired by the acting Chief of Police for the city in September of 1973, the Chief promised him a monthly wage of $575, which was $50 more per month than the rate paid 'rookie' patrolmen, because grievant had had prior experience in law enforcement. At the hearing before the Deputy Director, in addition to the request for reinstatement, grievant requested that he be paid the additional $50 per month that had been promised him at the time of hiring but which he had never received.

A hearing on the grievance was held before the Deputy Director of the Division of Labor and Management Relations and the Director made findings of fact and conclusions of law and an order requiring that the grievant be immediately reinstated as a patrolman, that he not be denied any advancement in pay, position or other benefits he might have attained had he been in continuous service to the date of reinstatement, that he be paid all back pay from the date of his termination to the day before his reinstatement mitigated by any salary that he may have earned during said period, and ordering that grievant be paid the sum of $50 per month promised to him by the acting Chief of Police at the time he was employed.

A petition for review of the decision of the Deputy Director was thereupon made to the Director by respondent City of Rapid City for the reason that there had been an oversight as to legal requirements in force during all of the time of Kierstead's employment and that if properly applied the decision would be reversed. The Director of the Division of Labor and Management Relations reviewed the record and affirmed the decision of the Deputy Director.

Thereafter notice of appeal and notice of petition for review was filed in circuit court by the city. The petition for review requested a review of the decision of the Deputy Director for the reasons that the decision was not supported by the law for municipal corporations nor was it consistent with the rules and regulations of the city in vogue at the time of the alleged incident.

The appeal was held before the Seventh Judicial Circuit Court with that court reversing and setting aside the order of the Division of Labor and Management Relations for the reasons: (1) that the decision of the Director was unsupported by substantial evidence; (2) that the decision was based upon actions of the grievant who did not follow established and lawful procedure in taking leave of absence without first securing permission and that therefore his discharge was justified, and (3) that the decision was based upon actions of the grievant which did not conform to established and lawful procedures with respect to prosecution of grievances and therefore the Division of Labor and Management Relations had no jurisdiction to hear and determine the matter. Appeal by grievant was thereupon made to this court from the order of the circuit court reversing the decision of the Director.

A summary of the factual background as well as the applicable statutory law is necessary for an understanding of this matter.

Rapid City is a municipality governed by a mayor and common council and has no civil service system. Grievant was hired as a patrolman for the City of Rapid City in September 1973, and continued in his employment as a patrolman until he was suspended by the Chief on July 1, 1974. The mayor of Rapid City in a letter of August 20, 1974, to the grievant affirmed the action taken by the department on July 1, 1974, for the reason that the application of grievant for leave of absence without pay did not conform to Article XIV of the Personnel Manual of the city. Article XIV provided, among other things, that '(a) leave of absence may be granted upon application by the employee and approval by his immediate supervisor and the Mayor, or his designee * * *.' The application was signed by the grievant and recommendation of the request was signed by grievant's immediate supervisor. The application was never signed by the mayor or his designee.

Grievant's basic argument with regard to the firing is that he was fired not for taking the leave of absence without prior approval of the proper authority but because he had dated and married a police woman on the force and the Chief frowned upon fraternization within the department between male and female employees. Grievant argues additionally that he had submitted his application for leave without pay to his immediate supervisor and had been advised by his supervisor that such leaves once recommended by the supervisor were considered granted if no disapproval was forthcoming and that as there was no disapproval, in accordance with accepted procedures, he took his leave.

Grievant's basic argument with regard to the $50 back pay because of his prior law enforcement experience is that when originally hired he was promised the additional $50 per month; that the police department had an unwritten policy that a starting policeman with substantial prior law enforcement experience would start at $50 per month higher than a 'rookie' policeman; that other policemen with prior law enforcement experience received the extra $50 and that he was entitled to the increased rate; that when he found that he was not receiving the additional $50 he made his grievance through the proper chain of command, but that through no fault of his own his request never reached the proper party for a determination and was never acted upon by anyone with decision-making authority.

The Deputy Director concluded as a matter of law that the Division of Labor and Management Relations had jurisdiction over the matter by virtue of SDCL 3--18--1.1 and 3--18--15.2, and his findings of fact favored the grievant on all the factual issues raised.

The determination issue to be initially decided is whether the Director of Labor and Management Relations had the legal authority under existing law to order reinstatement and awarding of back pay.

If the Director had such authority it would have to come from the provisions of SDCL 3--18. The pertinent sections of Chapter 3--18 are:

SDCL 3--18--1.1. "Grievance' defined.--The word 'grievance' as used in this chapter shall mean a complaint by a public employee or group of public employees based upon an alleged violation, misinterpretation, or inequitable application of any existing agreements, contracts, ordinances, policies, rules or regulations of the government of the state of South Dakota or the government of any one or more of the political subdivisions thereof, or of the public schools, or any authority, commission, or board, or any other branch of the public service, as they apply to the conditions of employment. Negotiations for, or a disagreement over, a nonexisting agreement, contract, ordinance, policy, rule, or regulation is not a 'grievance' and is not subject to this section.'

SDCL 3--18--15.2. 'If, after following the grievance procedure enacted by the governing body, the grievance remains unresolved, it may be appealed to the department of manpower affairs, which shall conduct an investigation and hearing and shall issue an order covering the points raised, which order shall be binding on the employees and the governmental agency.'

Grievant argues that SDCL 3--18--15.2 by implication provides ample authority for the Director to make his order of reinstatement and back pay, otherwise the Division would have hearing officers conducting hearings around the state concerning discharges and not have any jurisdiction to render decisions relating thereto.

Respondent argues that nowhere in SDCL 3--18 is there any grant of authority with respect to the ability of the Director to order reinstatement or award back pay, and that without such authority he had no jurisdiction to hear and determine the grievances presented. The nearest approach is SDCL 3--18--15.2, which provides for a hearing and the issuance of an order covering the points raised, which order shall be binding on the employees and the governmental agency.

To have the authority claimed by the grievant and assumed by the Director would require that the Director has the authority to:

(1) Repeal the force of SDCL 9--14--13:

'In an aldermanic-governed city the mayor shall have power except as otherwise provided to remove from office any officer appointed by him, whenever he shall be of the opinion that the interests of the city demand such removal, but he shall report the reasons for his removal to the council at its next regular meeting.'

(2) Repeal the force of SDCL 9--23--1:

'Before any claim against any municipality for any property or services for which it is liable shall be allowed, the person asserting the same, either by himself or agent, shall reduce the claim to writing and shall verify the same to the effect that such claim is just and true; that the money therein charged was actually paid for the purposes therein stated; that...