Schlumbohm v. City of Sioux Falls

• Decision Date: 13 June 2001
• Docket Number: No. 21626, No. 21647.
• Citation: 630 N.W.2d 93,2001 SD 74
• Parties: Jackie SCHLUMBOHM, Grievant and Appellee, v. CITY OF SIOUX FALLS, Respondent and Appellant.
• Court: South Dakota Supreme Court

630 N.W.2d 93

2001 SD 74

Jackie SCHLUMBOHM, Grievant and Appellee, v. CITY OF SIOUX FALLS, Respondent and Appellant.

Nos. 21626, 21647.

Supreme Court of South Dakota.

Argued April 26, 2001.

Decided June 13, 2001.

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

R. Shawn Tornow, Chief Assistant City Attorney, Sioux Falls, SD, Attorney for respondent and appellant.

SABERS, Justice

[¶ 1.] Sioux Falls Police Officer Jackie Schlumbohm was terminated for conduct unbecoming an officer, committing a criminal act and wantonly offensive conduct, for events related to her operation of a motor vehicle while under the influence of alcohol. The Civil Service Board (Board) found just cause for discipline but reduced the termination to a suspension. City appeals contending the Board abused its discretion. We affirm.

FACTS

[¶ 2.] Schlumbohm was employed as a police officer with the City of Sioux Falls (City). Days after completing her one-year probationary period, Schlumbohm was involved in a serious one-car accident. Schlumbohm had been at a Sioux Falls bar where she claimed she consumed between three and four mixed drinks. After spending a few hours at the bar Schlumbohm left in her personal vehicle.

[¶ 3.] Traveling northbound on I-229, Schlumbohm was driving well in excess of the posted speed limit. Additionally, she was swerving in and out of traffic while cutting off and passing vehicles traveling within the speed limit. Eyewitness estimates placed her speed around ninety miles per hour. There was also disputed testimony that Schlumbohm made an obscene gesture to an occupant of a vehicle she passed.

[¶ 4.] While attempting to exit the freeway, Schlumbohm lost control of her vehicle, hit a sign, swerved into the ditch, swerved back toward the road and finally rolled her car into the opposite ditch. Schlumbohm was transported to the hospital where a blood test revealed her blood alcohol content to be .154 percent, well over the legal limit of .10 percent. Schlumbohm pled guilty to driving under the influence.

[¶ 5.] The City terminated Schlumbohm for conduct unbecoming an officer, committing a criminal act and wantonly offensive conduct to the public. Schlumbohm appealed that decision to the Board arguing the termination was not warranted and that the discipline was more severe than other prior disciplinary actions. The Board found that the City had just cause for disciplining Schlumbohm. However, the Board reduced her disciplinary sanction from a termination to six-month suspension without pay and another six-month suspension unless accompanied by another officer while performing her duties.

[¶ 6.] The circuit court affirmed the Board's decision. City appeals raising the following issues:

1. Whether the circuit court erred in failing to find the Board abused its discretion by finding just cause for disciplinary action, but ordering that the termination be reduced to a suspension.

2. Whether the Board committed error by admitting and considering evidence regarding prior unrelated disciplinary actions. 3. Whether the circuit court erred in ruling that the City failed to preserve for appeal its argument that Board improperly ordered reinstatement to a position that did not exist.

By notice of review, Schlumbohm raises one issue:

1. Whether the facts, as found by the Board, are sufficient to constitute conduct unbecoming an officer.

STANDARD OF REVIEW

[¶ 7.] We review the Civil Service Board's decision under the Administrative Procedures Act, SDCL ch. 1-26. 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.

[¶ 8.] 1. WHETHER THE CIRCUIT COURT ERRED IN FAILING TO FIND THE BOARD ABUSED ITS DISCRETION BY FINDING JUST CAUSE FOR DISCIPLINARY ACTION, BUT ORDERING THAT THE TERMINATION BE REDUCED TO A SUSPENSION.

[¶ 9.] City maintains that the Board acted arbitrarily and failed to conform to Ordinance 30-50 and exceeded its discretionary powers contrary to SDCL 1-26-36(2) and (6). The assertion of error is that the Board failed to enter specific findings of fact to support a reduction in the discipline Schlumbohm received and, therefore, acted improperly when it rejected the discipline imposed by the chief of police.

[¶ 10.] SDCL 9-14-14 is the source of authority for the Board. That statute provides in relevant part:

Any municipality may adopt an ordinance establishing a civil service system for its municipal employees, policemen and firemen, and providing for the appointment of a civil service board, prescribing its powers, duties and compensation, and providing for the suspension or removal of any employee, policeman or fireman for cause, subject to review and affirmance, reversal or modification of such action by the civil service board at a hearing.

[¶ 11.] The City has adopted ordinances establishing and enumerating the powers of the Board. The two ordinances relevant here are 30-49 and 30-50. Ordinance 30-49 entitles the Board to investigate "the determination of the question of whether such removal, ... was or was not made for race, color, creed, disability, or political or religious reasons and was or was not made in good faith for cause." (Emphasis added). Additionally, Ordinance 30-50 vests the Board with the authority to reinstate the employee if the removal violated the provisions of Ordinance 30-49 or was not made in good faith for cause. Furthermore, the Board is given the discretion to modify the discipline imposed:

After investigation into the discharge, removal, suspension or reduction of a person in the civil service, the civil service board may, if in its estimation the evidence is conclusive, affirm the removal, or if it shall find the removal, suspension, or demotion was made for race, color, creed, disability or political or religious reasons or was not made in good faith for cause, shall order the immediate reinstatement or reemployment of such person in the office, place, position, or employment from which such person was removed, suspended, demoted or discharged. Such reinstatement may be retroactive with pay from the time of such removal, suspension, demotion or discharge. The board upon such investigation, in lieu of affirming the removal, suspension, demotion, or discharge, may modify the order of removal, suspension, demotion, or discharge by directing a suspension without pay for a given period and subsequent restoration of duty or demotion in classification, grade, or pay. The findings of the board shall be certified in writing to the director, and shall be forthwith enforced by such office.

Ordinance 30-50 (emphasis added).

[¶ 12.] City asserts that the Board acted arbitrarily by reducing Schlumbohm's termination to a suspension. In reviewing the findings made by the Board, we do not "judge witness credibility, a matter left to those presiding first hand." Green v. City of Sioux Falls, 2000 SD 33, ¶ 16, 607 N.W.2d 43, 47. However, whether the facts support the conclusion that just cause existed for discipline is a matter of law fully reviewable. Id. ¶ 21. The facts and conclusions entered by the Board tend to support the reduction to a suspension.¹ Contrary to the City's argument, they appear to be the result of a reasoned consideration and not an arbitrary act constituting an abuse of discretion. The Board is vested with the power to determine whether just cause existed and whether the discipline is excessive. A finding of just cause does not require the Board to uphold the disciplinary action taken by the chief of police. Here, despite the scarcity of findings to support the reduction to a suspension, the record itself supports the Board's decision. However, in the future, the Board should make specific findings to justify its decision to modify disciplinary decisions.

[¶ 13.] As recognized by another court addressing a similar issue:

We are mindful of the commission's power to modify penalties and the considerable discretion provided it.... That discretion is, however, `not without bounds,' and the commission may not modify a penalty without providing a reasonable explanation for doing so. It is well to remember that the power to modify is at its core the authority to review and, when appropriate, to temper, balance, and amend.

Police Com'r of Boston v. Civil Service Comm., 39 Mass.App.Ct. 594, 659 N.E.2d 1190, 1193 (1996).

[¶ 14.] An abuse of discretion is "discretion exercised to an end or purpose not justified by, and against, reason and evidence." Bland v. Davison County, 1997 SD 92, ¶ 5, 566 N.W.2d 452, 455 (citations omitted). The Board's conclusion number 7 demonstrates the consideration which the Board gave to its recommendation for a reduced sanction.

When considering the City's long standing policy of progressive discipline, the totality of Grievant's actions and conduct on July 18, 1999, along with her prior record as a law enforcement officer, this board under the authority given it by the Ordinances of Sioux Falls, and based upon the evidence received at the hearing, in lieu of affirming the discharge of Grievant does hereby modify the discharge...

[¶ 15.] An examination of the record reveals the Board rightfully found just cause for the discipline of Schlumbohm for her irresponsible actions.² In Schroeder v. Dept. of Social Services, we recognized that findings of fact and...