Vislisel v. University of Iowa, 88-1519

• Decision Date: 20 September 1989
• Docket Number: No. 88-1519,88-1519
• Citation: 445 N.W.2d 771
• Parties: 56 Ed. Law Rep. 304 Eugene VISLISEL, Appellant, v. The UNIVERSITY OF IOWA, et al., Appellee.
• Court: Iowa Supreme Court

Page 771

445 N.W.2d 771

56 Ed. Law Rep. 304

Eugene VISLISEL, Appellant, v. The UNIVERSITY OF IOWA, et al., Appellee.

No. 88-1519.

Supreme Court of Iowa.

Sept. 20, 1989.

Rehearing Denied Oct. 13, 1989.

Eugene Vislisel, Cedar Rapids, pro se.

Thomas J. Miller, Atty. Gen., and Joan Fitzpatrick Bolin, Asst. Atty. Gen., for appellee.

Considered by McGIVERIN, C.J., and LARSON, LAVORATO, NEUMAN, and ANDREASEN, JJ.

ANDREASEN, Justice.

In this appeal we must determine the nature of the veterans preference under Iowa Code chapter 70 (1987) and rules adopted by the State Board of Regents pursuant to the merit system law, Iowa Code chapter 19A. The district court concluded that the veterans preference for wartime veterans who apply for merit system positions consists of points added to scores on qualifying examinations. Because the veteran, Eugene Vislisel, was awarded the points provided by the statute, the district court denied his petition for a writ of mandamus. We affirm.

Eugene Vislisel is a veteran of the Korean Conflict. In July 1985 he applied for employment with the University of Iowa (University). The application indicated he was a veteran of the United States Armed Forces. The University added five points to his examination score as a veterans preference under Iowa Code section 19A.9(21). Vislisel's name appeared on University personnel services eligibility lists, and he was interviewed for four clerk typist III positions. He was among the top six applicants for each position and was ranked first for three of the four positions on the basis of his total score on the qualifying examination. He was not offered a job. The applicants hired for at least three of the positions were not veterans.

Vislisel filed a petition for writ of mandamus in district court seeking to require the University to appoint him to one of the positions and to allow recovery of damages for lost earnings. He alleged that the veterans preference law, Iowa Code section 70.1, required his appointment. The action was filed under Iowa Code section 70.4, which allows an applicant to maintain an action for mandamus upon a refusal by the appointing authority to allow the preference provided by the veterans preference law.

The court concluded that the provisions of section 19A.9(21) provided a specific, quantifiable manner in which the general veterans preference of chapter 70 is given effect. As such, the University is free to select an employee from among the top six applicants, as provided by section 19A.9(7), even when a veteran is among them. The district court held that the University could not be required to hire Vislisel. He appeals from the court's refusal to issue a writ of mandamus.

In 1904 the Iowa Legislature adopted a veterans preference law in public employment. 1904 Iowa Acts ch. 9 (codified at Iowa Code ch. 70). The act provided that honorably discharged veterans of the Civil War be entitled to preference in appointment, employment and promotion over other persons of equal qualifications. A refusal to allow the preference entitled the veteran to bring an action for damages and for mandamus for righting the wrong. Through the years the veterans preference law has been amended to include veterans of other wars and conflicts in which the United States has been involved. See Iowa Code Ann. § 70.1 historical note (West 1973).

In 1907 the Iowa Legislature adopted a civil service statute providing for appointment, employment, promotion and discharge of municipal employees. 1907 Iowa Acts ch. 48, § 14 (codified at Iowa Code ch. 400). In 1911 it amended the statute to provide for a veterans preference. 1911 Iowa Acts ch. 54, § 2 (codified at Iowa Code § 400.10). The purpose of the civil service legislation was to get away from the evils of the spoils system, political considerations, and favoritism in appointments to public service. Herman v. Sturgeon, 228 Iowa 829, 838, 293 N.W. 488, 492 (1940). It sought to secure efficiency by establishing a merit system which based eligibility to appointment upon fitness for service. Id.

In 1967 the Iowa Legislature adopted an act to establish a merit system of personnel administration for state employees. 1967 Iowa Acts ch. 95 (codified at Iowa Code ch. 19A). Its general purpose was to establish for the State of Iowa a system of personnel administration based upon merit principles and scientific methods governing the appointment, promotion, welfare, transfer, layoff, removal and discipline of its civil employees. This act provided for the establishment of eligibility lists for appointment based upon competitive examination test scores. The appointing authority is to appoint a person among the top six applicants. Iowa Code § 19A.9(7). The act also provided for a veterans preference. It directed the adoption of administrative rules that provided for veterans preference through a provision that honorably separated wartime veterans shall have five points added to the grade or score attained in qualifying examinations for appointment to jobs. Iowa Code § 19A.9(21). Hence, the Board of Regents adopted an administrative rule that veterans preference shall be given by the addition of extra points to examination scores as provided by law. 681 Iowa Admin.Code 3.56(8) (1987).

Under the veterans preference law, Iowa Code chapter 70, we construed the preference for appointment in hiring to be mandatory, controlling, and reconcilable with other Iowa civil service statutes. See, e.g., Dennis v. Bennet, 258 Iowa 664, 669, 140 N.W.2d 123, 126 (1966); Geyer v. Triplett, 237 Iowa 664, 22 N.W.2d 329 (1946); Herman v. Sturgeon, 228 Iowa 829, 293 N.W. 488 (1940). In 1985 the legislature amended the provisions of Iowa Code section 70.1. 1985 Iowa Acts ch. 50, § 1. The amendment with deletions struck through and additions underscored reads as follows in pertinent parts:

[ADDED: 1.] In every public department and upon all public works in the state, and of the counties, cities, and school corporations thereof, honorably discharged persons from the military or naval forces of the United States in any war ..., who are citizens and residents of this state [DELETED: shall be] [ADDED: are] entitled to preference in appointment[DELETED: ,] [ADDED: and] employment DELETED: , and promotion] over other applicants of no greater qualifications. [ADDED: The preference in appointment and employment for employees of cities under a municipal civil service is the same as provided in section 400.10.]

[ADDED: 2. In all jobs of the state and its political subdivisions, an application form shall be completed. The application form shall contain an inquiry into the...