Sambo v. City of Mitchell, 15690

• Court: South Dakota Supreme Court
• Writing for the Court: TALBOTT; TALBOTT, Circuit Judge, sitting for WUEST
• Citation: Sambo v. City of Mitchell, 427 N.W.2d 379 (S.D. 1987)
• Decision Date: 01 September 1987
• Docket Number: No. 15690,15690
• Parties: Allen SAMBO, Appellee, v. CITY OF MITCHELL and its Police Department, Appellant, and S.D. Dept. of Labor, Div. of Labor and Management, Respondent. . Considered on Briefs

Page 379

427 N.W.2d 379

Allen SAMBO, Appellee, v. CITY OF MITCHELL and its Police Department, Appellant and S.D. Dept. of Labor, Div. of Labor and Management, Respondent.

No. 15690.

Supreme Court of South Dakota.

Considered on Briefs Sept. 1, 1987.

Decided Aug. 10, 1988.

Harry H. Smith of Smith & Smith, Sioux City, Iowa, for appellee.

Dennis Maloney of Maloney, Kolker, Fritz, Hogan & Johnson, Aberdeen, for appellant.

Carl J. Koch, Mitchell, for appellant.

TALBOTT, Circuit Judge.

City of Mitchell (City), a municipal corporation of the State of South Dakota, appeals a trial court judgment which reversed the decision of the Department of Labor (Department) which held the dismissal of Allen Sambo (Grievant) proper. The trial court directed the reinstatement of Grievant to his position with City. We affirm the trial court.

Both the trial court and Department found the facts not to be in serious dispute. Grievant began working for City's police department as a full-time police officer in August 1981. On July 5, 1985, he was working the 4:00 p.m. to 12:00 a.m. shift. At approximately 10:30 p.m. a local citizen dropped off a stray dog and Grievant was asked by his supervisor, Sgt. Smith, to handle the situation. At approximately 11:30 p.m., upon completion of some paperwork, Grievant attempted to call the telephone number given on the dog's collar. Intending to return to patrol duties, Grievant wrote the telephone number on a piece of paper, handed it to Sgt. Smith, and suggested that Sgt. Smith continue the contact effort. Sgt. Smith declined, saying that enough attempts had been made. Grievant suggested the dog catcher be called in. Since that person was not on duty, Grievant suggested taking the dog to the dog pound in the dog catcher's vehicle, but Sgt. Smith said Grievant should use his own patrol car. Grievant responded by stating, "You don't have the authority, it's going to take the Captain or the Chief." Sgt. Smith said, "What?," and Grievant gave the same response. Contacted by radio to telephone in to the office, Captain Royston told Grievant to take the dog to the pound in the patrol car and Grievant complied.

On July 15, 1985, City's Chief of Police handed Grievant a letter of termination giving as reasons for termination: 1) refusal to follow a lawful work order of your immediate supervisor; and 2) gross insubordination. Reference was made to attached findings and conclusions. Number 2 of the conclusions stated:

Officer Sambo's clear refusal to follow the directive of the Sergeant on duty, said Sergeant being his immediate supervisor, upon the circumstances above stated, constitutes gross insubordination.

In this dismissal no mention was made that other matters in Grievant's personnel file were being considered.

Although not a part of this appeal record, it appears to be conceded that City's common council heard and considered Grievant's position and affirmed the dismissal action taken by its Chief of Police.

Grievant filed a grievance with Department. City filed its answer which listed dismissal justifications as 1) gross insubordination, and 2) refusal to follow and carry out a work order of an immediate supervisor. The answer filed by the Chief of Police also stated that Grievant's prior work record showed a tendency of resistance to supervisory authority and attached a December 2, 1983, incident and an April 19, 1984, incident. Over Grievant's strenuous objection, Department admitted into evidence, and considered, evidence of these prior incidents.

Department found and held that the conduct of July 5, 1985, did not constitute "gross insubordination." It did hold, however, that the three incidents, taken together, constituted "a pattern of insubordinate behavior," and that the Chief of Police's decision to terminate was based, in large part, upon the Grievant's prior disciplinary problems.

At all times pertinent to the facts of this case, City, for its police department, had in place a negotiated agreement with General Drivers and Helpers Union, Local 749. Grievant was a union member.

As applicable to the facts of this case, that agreement contained the following provision:

ARTICLE 24

DISCHARGE OR SUSPENSIONS

The Employer shall not discharge, suspend nor discipline any employee without just cause, but in respect to discharge shall give at least one (1) warning notice of a complaint against such employee to the employee in writing and copy of the same to the Union, except that no warning notice need be given to an employee before he is discharged or otherwise disciplined if the cause of such discharge is:

(1) Dishonesty.

(2) Drinking of, or under the influence of alcoholic beverage or narcotics during the work day.

(3) Personal possession or use of illegal drugs, marijuana or L.S.D.

(4) Recklessness resulting in a serious accident while on duty.

(5) Failure to report an accident or criminal incident while on duty.

(6) Gross insubordination.

It is understood that there are other offenses of extreme seriousness that an employee will be discharged for without a warning letter. Depending upon the circumstances and upon just cause, a lessor [sic] discipline to include demotion, suspension, or any other appropriate disciplinary action, short of discharge, may in the discretion of the department be implemented. It is further understood that a warning notice shall mean that further disciplinary action up to and including suspension or dismissal may occur if the condition causing the issuance of the warning letter is repeated during the effective time of the warning notice.

The warning notice as herein provided shall be given to the employee with a copy to the Union within ten (10) days of said complaint or within ten (10) days of knowledge of said complaint and shall not remain in effect for a period of more than nine (9) months from date of said warning notice. The conditions of a warning notice shall be included in all written disciplinary actions except a reprimand. The City shall be allowed reasonable time to investigate offenses of a criminal nature that may require disciplinary action prior to the initiation...