Stavig v. South Dakota Highway Patrol, 14695

• Citation: 371 N.W.2d 166
• Decision Date: 03 July 1985
• Docket Number: No. 14695,14695
• Parties: In the Matter of the Grievance of Trooper Marvin STAVIG, Appellee, v. SOUTH DAKOTA HIGHWAY PATROL, Appellant.
• Court: Supreme Court of South Dakota

Page 166

371 N.W.2d 166

In the Matter of the Grievance of Trooper Marvin STAVIG Appellee, v. SOUTH DAKOTA HIGHWAY PATROL, Appellant.

No. 14695.

Supreme Court of South Dakota.

Argued April 9, 1985.

Decided July 3, 1985.

Max A. Gors of Gors, Braun & Carlon, Pierre, for grievant and appellee.

Mark Barnett, Asst. Atty. Gen., Pierre, for respondent and appellant; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

FOSHEIM, Chief Justice.

Trooper Marvin Stavig (Stavig) was informed by the director of the South Dakota Highway Patrol (Highway Patrol) on August 31, 1983, that he was being involuntarily transferred from his duty station at Mitchell to Kadoka, South Dakota and that he was being suspended without pay for three duty days. Stavig was informed that both measures were being taken for disciplinary reasons.

An appeal was taken from this disciplinary action and a hearing was held before the South Dakota Law Enforcement Civil Service Commission. ¹ In its finding of fact, conclusions of law and order the Commission concluded that Stavig had been insubordinate and denied his grievance. Stavig then appealed to the circuit court. The court reversed the decision of the Commission and entered finding of fact, conclusions of law, and a judgment for Stavig. This appeal is from that judgment.

Stavig was employed with the Highway Patrol in August of 1972. He had been stationed in Mitchell since his transfer from Presho in 1978. The evidence indicates that in many respects Stavig has been an effective trooper in the Highway Patrol. From time to time he has shown improvement in his weak areas. However, staying in compliance with Highway Patrol requirements has been difficult for Stavig. It has been a constant struggle involving counseling, reprimands, and patience on the part of his superiors. His most serious problems relate to personal grooming, maintenance of property and equipment, and excessive coffee breaks.

Prior to 1983, Sergeant Ibis, one of Stavig's supervisors, talked with Stavig about his apparent lack of personal hygiene. No improvement was observed.

In early 1983, Sergeant Sammons became the new supervisor of the Mitchell squad. On numerous occasions Stavig's personal appearance required Sergeant Sammons to take action. He spoke with Stavig at least twice about getting a haircut. On at least two or three other occasions, he reminded Stavig that his shoes needed to be shined. Sergeant Sammons even purchased and made a shoe shine kit available to Stavig. However, rather than shine his shoes, Stavig began wearing overshoes. Sergeant Sammons also talked to Stavig about his uniform jacket which was soiled and needed repair. These jackets are furnished at no expense to the trooper. It was the responsibility of each trooper, however, to keep his uniform in good appearance. Nevertheless, Stavig made no effort to replace or repair the jacket. It was necessary for Sergeant Sammons to do it for him.

When Sergeant John Berheim replaced Sergeant Sammons in the Mitchell area Stavig persisted in letting his hair appear unwashed and grow too long. He said he did not like to keep his hair trimmed because it associated him with law enforcement while enjoying off duty activities. His uniform often needed cleaning and he made a practice of wearing the same shirt for a number of days without washing until white stains appeared at the armpits. Because of body odor, it was unpleasant for his colleagues to work with him.

Additionally, Stavig would sometimes extend his coffee breaks for up to an hour and continue them from one restaurant to another.

Stavig did not meet the standards of inspection with reference to the maintenance of his equipment. The interior and exterior of his car was unclean. The seat was broken down and he failed to install a new seat cushion. His shotgun and sidearm needed cleaning.

Following a meeting in April, concerning these conditions, Stavig assured his supervisors that he would improve. As a result of this meeting a seven point memo was drawn up which clearly expressed what was expected. Upon receipt of that memo, Stavig made a substantial, but temporary improvement. The improvements peaked and he again went on a downward slide until August 1983.

Sergeant Sammons then ordered Stavig to get a hair cut to Highway Patrol standards. Six days later, Stavig had not complied and he was ordered again to get his hair cut. He then complied. Stavig admits that within the six days he had adequate time and opportunity to get his hair cut, but that he merely chose not to comply. He admitted that when he was compelled to keep up with standards, it helped him in his job and that it had a positive impact on how the public perceived him as Highway Patrol Trooper.

The scope of review of the circuit court is determined by SDCL 1-26-36:

The court shall give great weight to the findings made and inferences drawn by an agency on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in light of the entire evidence in the record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

A court shall enter its own findings of fact and conclusions of law or may affirm the findings and conclusions entered by the agency as part of its judgment. The circuit court may award costs in the amount and manner specified in chapter 15-17.

This Court's review of appeals from administrative decisions is prescribed by SDCL 1-26-37, as amended by 1983 S.D.Sess.Laws ch. 6 Sec. 1:

An aggrieved party or the agency may obtain a review of any final judgment of the circuit court under this chapter by appeal to the Supreme Court. The appeal shall be taken as in other civil cases. The Supreme Court shall give the same deference to the findings of fact, conclusions of law and final judgment of the circuit court as it does to other appeals from the circuit court. Such appeal may not be considered de novo.

"Under the new law we must affirm unless we determine the circuit court findings to have been clearly erroneous." State Division of Human Rights v. Miller, 349 N.W.2d 42, 46 (S.D.1984); See also In re State Water Management Board, 351 N.W.2d 119 (S.D.1984). In the final analysis, "If the agency findings are not clearly erroneous then the circuit court was clearly erroneous in so concluding." Miller at 46, n. 2.

The first issue urged is whether the Commission and the circuit court had jurisdiction to review the administrative reassignment which was implemented together with the three days suspension. Stavig contends the Commission and circuit court have jurisdiction to review both the suspension and the transfer to Kadoka. It is the position of the Highway Patrol that the transfer was purely a managerial administrative decision which is not subject to agency or court review.

Stavig's superiors were authorized to take certain actions for disciplinary reasons. "Disciplinary action may be taken for just cause ... and may include the following: (1) Suspension without pay; (2) Involuntary termination; (3) Demotion; or, (4) Reduction in salary." ARSD 55:02:21:02; See SDCL 3-7-18. ² Transfers do not appear among the disciplinary actions that may be taken for just cause. Nor does the rule preclude the Highway Patrol, according to its own operations manual, from transferring Stavig for nondisciplinary reasons. The testimony reveals Stavig's transfer was a managerial decision made to help him start over with a "clean slate" and to reach his new goals. Although Stavig's transfer may have been called a disciplinary measure by his supervisor, it was in fact and law no more than a management call designed to serve the best interests of both the Highway Patrol and Stavig. The merit for that flexibility is obvious. The Highway Patrol could not efficiently and promptly function if every transfer could get bogged down as a grievance before the Commission.

The Commission's authority to hear appeals from transfers has also been removed. ARSD 55:02:08:01 (repealed). That authority is now limited to hearing appeals from a suspension, involuntary termination, demotion, or reduction in salary. ARSD 55:02:21:02 and 55:02:22:05. In Deuter v. South Dakota Highway Patrol, 330 N.W.2d 533, 536 (S.D.1983), this court stated, relying on Drovdal v. Department of Public Safety, 255 N.W.2d 437 (S.D.1977):

[T]he [Law Enforcement Civil Service] commission does not have authority to modify the type of disciplinary action taken by the Highway Patrol. Rather, the function of the Commission is to conduct a hearing comporting with due process requirements to determine if good cause exists for the disciplinary action of the Highway Patrol.

See also Drovdal v. State Department of Public Safety, 255 N.W.2d 437 (S.D.1977). Even though an involuntary transfer may also appear to carry sanction overtones, that does not subject it to review by the Commission.

Adhering to the Deuter decision, supra, the Commission determined that it could not consider the propriety of Stavigs transfer. Once the Commission determined there was cause for the discipline, Stavig's grievance was in all things denied. We agree with the conclusion of the Commission. The Commission did not commit an error of law in concluding that it could not review the type of discipline or the managerial decision to transfer Stavig.

The circuit court chose also to disagree with the Commission and found no just cause existed for Stavig's transfer and suspension without pay. The facts presented to the Commission...