Black v. Division of Criminal Investigation
887 N.W.2d 731
S.D.2016Background
- Mark Black, hired as a DCI agent in 2005, had strong investigative performance but repeated incidents showing emotional instability and poor judgment over several years.
- Notable incidents: resignation email to coworkers (resulting in suspension and remediation), inflammatory Keloland blog comment and a YouTube-posted courthouse recording, spray-painting a shared boat during divorce, and a handwritten letter to his ex-wife admitting abuse.
- After an ex parte protection order petition (later dismissed), DCI placed Black on administrative leave, investigated, and proposed termination citing ARSD 55:10:07:04(26) and DCI Policy 7.0101 (unbecoming conduct).
- Director Gortmaker and the Attorney General affirmed the termination; Black appealed to the Civil Service Commission (CSC), which held a full hearing, received witness testimony and exhibits, and found just cause to terminate.
- The circuit court affirmed CSC; Black appealed to the South Dakota Supreme Court, raising (1) whether CSC erred in finding just cause and (2) whether Black received due process. The Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument (Black) | Defendant's Argument (DCI) | Held |
|---|---|---|---|
| Whether CSC erred in finding just cause under ARSD 55:10:07:04(26) (conduct reflecting unfavorably on State) | DCI failed to prove public harm; needed testimony from general public or polling to show diminished public confidence | Testimony from experienced DCI supervisors plus publicly visible misconduct (blog, YouTube, press) sufficed to show harm | Court: No error; public-witness requirement is unnecessary; record supports violation |
| Whether Black violated DCI Policy 7.0101 (conduct unbecoming: contrary to professional standards; harms morale/efficiency or public confidence) | Needed independent expert on law‑enforcement professional standards; DCI witnesses were biased and insufficient to prove unfitness or morale/efficiency harm | DCI’s supervisors with firsthand knowledge and documentary evidence adequately proved unbecoming conduct and effect on morale/public confidence | Court: No expert required; CSC’s credibility findings upheld; policy violations proven |
| Whether Director Gortmaker improperly added new ground (Policy 7.0103) after initial notice | Gortmaker relied on an alleged lie about personal conduct that was not in initial notice, denying fair notice | Gortmaker merely cited additional conduct supporting termination but affirmed the original notice and process | Court: No due-process problem; additional rationale did not prejudice Black and did not alter the process |
| Whether Black was denied due process (notice and meaningful hearing) | DCI failed to give notice that prior discipline would support termination; fired before protection-order resolution; past discipline considered improperly | DCI provided written notices, opportunity to respond, administrative reconsideration, appeals to Director and Attorney General, and full CSC hearing and circuit review | Court: Black received adequate notice and multiple meaningful opportunities to be heard; due process satisfied |
Key Cases Cited
- In re Jarman, 860 N.W.2d 1 (S.D. 2015) (standard of appellate review of agency decisions)
- Osman v. Karlen & Assocs., 746 N.W.2d 437 (S.D. 2008) (clearly erroneous standard explained)
- Fin‑Ag, Inc. v. Feldman Bros., 740 N.W.2d 857 (S.D. 2007) (deference to agency findings)
- Hubbard v. City of Pierre, 784 N.W.2d 499 (S.D. 2010) (trial court’s advantage in observing witness credibility)
- Baun v. Estate of Kramlich, 667 N.W.2d 672 (S.D. 2003) (weight of testimony and credibility determinations)
- Donat v. Johnson, 862 N.W.2d 122 (S.D. 2015) (bias affects weight, not admissibility, of testimony)
- State v. Guthrie, 627 N.W.2d 401 (S.D. 2001) (limits on when expert testimony is necessary)
- Hollander v. Douglas County, 620 N.W.2d 181 (S.D. 2000) (property interest in public employment and due process requirements)
- Wuest v. Winner Sch. Dist. 59‑2, 607 N.W.2d 912 (S.D. 2000) (meaningful notice and hearing requirement)
- Schrank v. Pennington County Bd. of Comm’rs, 584 N.W.2d 680 (S.D. 1998) (due process timing and manner)
- Irvine v. City of Sioux Falls, 711 N.W.2d 607 (S.D. 2006) (termination for chronic misbehavior despite good job performance)