[¶ 1.] Cаn 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 аffirm the circuit court’s judgment of reinstatement.
Facts
[¶2.] The South Dakota Department of Transportation (DOT) hired Gregory Wendell as a Senior Right-оf-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 Februаry 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 delinquenсy 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, howevеr, 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 hеaring his employment was terminated. His grievance was denied and he challenged the denial before the Career Service Cоmmission.
[¶ 3.] The Commission’s role in these types of appeals is limited to deciding whether the disciplinary action taken was for good сause. SDCL 3-6A-38.1;
Schroeder v. Dep’t of Social Services,
[¶ 4.] On appeal, the circuit court reversed, holding that good сause did not exist for *597 dismissal because Wendell’s misdemeanor was not the type of conduct contemplated in ARSD 55:01:12:05(2). The court ordеred 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 purposes of ARSD 55:01:12:05(2).
Standard of Review
[¶ 5.] Factual questions in administrative appeals undеr SDCL 1-26-37 are reviewed under the clearly erroneous standard and questions of law are reviewed de novo.
Sopko v. C & R Transfer Co., Inc.,
Analysis and Decision
Conduct within ARSD 55:01:12:05(2).
[¶ 6.] The DOT relied on ARSD 55:01:12:05(2) to discharge Wendell. That regulation states:
Disciplinary action may be taken for just cause as reported to the commissioner, including the just causes listed in this section:
* * * * * *
(2) The employee has committed any act of brutality, cruelty, or abuse to an inmate, prisoner, resident, or patient of an institution, to a persоn in custody, or to other persons, provided the act committed was not necessarily or lawfully done in self-defense, to protect the lives of others, or to prevent the escape of a person lawfully in custody;....
ARSD 55:01:12:05(2) (emphasis added). The question is whether the “or to other persons” language encompasses conduct outside the scope of employment.
[¶ 7.] Under the canon of statutory construction known as
ejusdem generis,
“where general words follow the enumеration of particular classes of things, the general words will be construed as applying only to things of the same general class аs those enumerated.” Black’s Law Dictionary 517 (6th ed 1990);
see also Grievance of O’Neill,
[¶ 8.] In another context, we have found that, for employee misconduct to be the basis for denial of entitlements, the misconduct must have “somе nexus with the employee’s work.”
Kleinsasser v. City of Rapid City,
Any person who, by аny act, causes, encourages or contributes to the abuse, the neglect or the delinquency of a child, or any person, оther than a parent who, by any act, causes a child to become a child in need of supervision, ... or who is, in any manner, responsible therefor, is guilty of a Class 1 misdemeanor.
By virtue of his plea under this statute, Wendell either caused, encouraged or contributed to the abuse or neglect of a child. This behavior had no connection to his duties with the DOT, nor was there any apparent nexus betwеen his job and the acts constituting his misdemeanor. We cannot give the phrase “or to other persons” meaning beyond the. scope of the employment limitation manifest in the regulation. As his conduct occurred outside of his job duties, we affirm the circuit court’s cоnclusion that Wendell did not violate ARSD 55:01:12:05(2). 2
[¶ 9.] Affirmed.
Notes
. SDCL 22-22-7 states in relevant part:
Any person, sixteen years of age or older, who knowingly engages in sexual contact with another person, other than that person’s spouse if the other person is under the age of sixteen years is guilty of a Class 3 felony....
. The circuit court also ruled that "contributing to abuse” under § 26-9-1 was not an "act of abuse” under ARSD 55:01:12:05(2). We need not reach this question, as our decision on Issue 1 disposes of this appeal. Lastly, Wendell seeks an award of attorney fees, but citеs no authority for the proposition that attorney fees are awarda-ble in this appeal. His request is therefore denied.