Ross v. City of Des Moines

• Decision Date: 19 January 1977
• Docket Number: No. 2--57288,2--57288
• Citation: 249 N.W.2d 648
• Parties: Dennis C. ROSS et al., Appellants, v. CITY OF DES MOINES, Iowa, et al., Appellees.
• Court: Iowa Supreme Court

Page 648

249 N.W.2d 648

Dennis C. ROSS et al., Appellants, v. CITY OF DES MOINES, Iowa, et al., Appellees.

No. 2--57288.

Supreme Court of Iowa.

Jan. 19, 1977.

Allan H. Rauch, Des Moines, for appellants.

William D. Groteluschen, City Solicitor, and Eugene E. Olson, Asst. City Solicitor, Des Moines, for appellees.

Heard by MOORE, C.J., and RAWLINGS, LeGRAND, UHLENHOPP and REYNOLDSON, JJ.

UHLENHOPP, Justice.

This appeal involves the procedure for reassigning firemen, who had been retired for disability, to active service for light duty in cities which are under chapter 411 of the Iowa Code. Section 411.6(7)(c) of that chapter provides:

The chief of the fire department or the chief of the police department of such city may, subject to the approval of the medical board, assign any former member of such department who is retired and drawing a pension for disability under the provisions of this chapter, to the performance of light duties in such department.

Firemen Ross, Phillips, and Bird, each of whom is under 55 years of age, were members of the fire department of the City of Des Moines, Iowa. They were retired from active service on disability pensions under chapter 411, which established retirement systems for firemen and policemen. While retired, they each worked in private employment and received earnings in addition to their pensions. Ross is in partnership with another individual; he runs a used car lot and the other individual runs a salvage yard. Phillips is maintenance supervisor for the J. C. Penney stores in Des Moines. Bird is parts manager for All American Transport Company; he disburses parts to mechanics and sees that the mechanics perform their assigned jobs.

Section 411.5(9) of the chapter in question provides for a medical board of three physicians and § 411.6(7) provides for periodic examination of disability retirees. Upon examination of these three retirees, the medical board found them able to perform light duties. The chief had several unfilled posts in his personnel quota, and he had light duties available which were ordinarily performed by regular firemen while not on fire calls, such as answering the telephone, sweeping and dusting, day watch (greeting anyone entering station), painting hose couplings, mowing lawns, and washing windows. The chief therefore reassigned these retirees to active service for light duty.

If reassigned to active service, the three retirees would not lose rank or seniority, nor would their pay scale in the fire department be reduced from their previous departmental pay. They would thus receive more money from the city than when on pension, but they would have to provide their services in order to receive the money.

The retirees brought an action against the City of Des Moines and others, challenging the validity of § 411.6(7)(c) and of the chief's reassingnment order under that section. They obtained a temporary injunction. After trial, the trial court upheld the statute and reassignment order, and the retirees appealed.

We have examined the retirees' challenges and find that two of the challenges warrant an extended statement by us: the retirees' claims (1) that they were demoted without compliance with the civil service statute, and (2) that § 411.6(7)(c) violates procedural due process of law.

i. At least while on active service, Des Moines firemen are under civil service. Code 1975, § 400.6(1). They may be demoted under the procedure prescribed in §§ 400.18 to 400.27, which was not followed here.

Assuming arguendo that Des Moines firemen retired for disability are under civil service, the difficulty with the retirees' challenge based on demotion is that they were not demoted. The record shows that upon reassignment they will not lose rank, seniority, or scale of pay. Notwithstanding the existence of the civil service statute, § 411.6(7)(c) must be applied when its terms are met. When a chief applies § 411.6(7)(c) and does not attempt to demote the retiree other than to assign him to light duty, no conflict exists between the civil service statute and § 411.6(7)(c). We thus hold that the chief's reassignment order here did not violate the civil service law.

II. The retirees' other challenge is more grave. They contend procedural due process requires more than the statute provides here--medical board approval...