Schlumbohm v. City of Sioux Falls6/13/2001
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.
[ .] 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.
[ .] 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.
[ .] 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).
[ .] 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, , 607 NW2d 43, 47. However, whether the facts support the conclusion that just cause existed for discipline is a matter of law fully reviewable. Id. . The facts and conclusions entered by the Board tend to support the reduction to a suspension. 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
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