Wendell v. South Dakota Dept. of Transp., No. 20550

• Court: Supreme Court of South Dakota
• Writing for the Court: KONENKAMP
• Citation: 587 N.W.2d 595,1998 SD 130
• Parties: 14 IER Cases 1251, 1998 SD 130 In the Matter of the Grievance of Gregory WENDELL, Appellee, v. SOUTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellant. . Considered on Briefs
• Docket Number: No. 20550
• Decision Date: 03 December 1998

Page 595

587 N.W.2d 595 14 IER Cases 1251, 1998 SD 130 In the Matter of the Grievance of Gregory WENDELL, Appellee,
v.
SOUTH DAKOTA DEPARTMENT OF TRANSPORTATION, Appellant. No. 20550. Supreme Court of South Dakota. Considered on Briefs Dec. 3, 1998.
Decided Dec. 30, 1998.

Jamie L. Damon Pierre, South Dakota Attorney for appellee.

Mark Barnett, Attorney General, William J. Nevin, Assistant Attorney General, Pierre, South Dakota, for appellant.

KONENKAMP, Justice.

¶1 Can a Department of Transportation employee be dismissed for a conviction on a misdemeanor unrelated to the job? Based on the language of the applicable regulation, we conclude the employee was wrongly discharged. We affirm the circuit court's judgment of reinstatement.

Facts

¶2 The South Dakota Department of Transportation (DOT) hired Gregory Wendell as a Senior Right-of-Way Specialist in July 1995. His work included reviewing property appraisals completed by other staff members, evaluating DOT projects, and negotiating with and relocating persons whose property was taken by the State for transportation purposes. On February 16, 1996, Wendell was charged by indictment with sexual contact with a child under sixteen in violation of SDCL 22-22-7, a Class 3 felony, for unlawful acts with a child in his care. ¹ In April, pursuant to a plea agreement, he pleaded guilty to the reduced charge of contributing to the abuse or delinquency of a minor in violation of SDCL 26-9-1, a Class 1 misdemeanor. As part of the agreement, the grand jury transcript was used as the factual basis for his guilty plea. The court was "familiar" with the transcript and found it factually sufficient to accept the plea. The transcript, however, was never made part of this administrative appeal. The DOT brought a disciplinary action against Wendell under Administrative Rule 55:01:12:05(2). After a hearing his employment was terminated. His grievance was denied and he challenged the denial before the Career Service Commission.

¶3 The Commission's role in these types of appeals is limited to deciding whether the disciplinary action taken was for good cause. SDCL 3-6A-38.1; Schroeder v. Dep't of Social Services, 1996 SD 34, p 12, 545 N.W.2d 223, 228; Matter of Grievance of O'Neill, 347 N.W.2d 887, 888 (S.D.1984), appeal after remand, O'Neill v. South Dakota Bd. of Charities and Corrections, 377 N.W.2d 587 (S.D.1985). Wendell asserted, among other things, that ARSD 55:01:12:05(2) furnished no grounds to dismiss him. The Commission decided that good cause existed to justify the DOT's action because that rule encompassed conduct not necessarily related to an individual's employment with the State.

¶4 On appeal, the circuit court reversed, holding that good cause did not exist for

Page 597

dismissal because Wendell's misdemeanor was not the type of conduct contemplated in ARSD 55:01:12:05(2). The court ordered the DOT to compensate Wendell for back wages, health insurance benefits, and vacation time, with interest. On appeal before us, the DOT raises the following issues: (1) Whether Wendell's conviction evidenced conduct within the scope of his employment so as to subject him to disciplinary action pursuant to ARSD 55:01:12:05(2); and (2) whether the circuit court erred in holding that Wendell's conviction for violation of § 26-9-1 did not establish conduct constituting "abuse of a person" for...