In the Matter of the Certification of Richard ACKERSON, In the Matter of Certification of Kent KARLEN, In the Matter of Certification of Thomas SCHMITT.
Nos. 13832, 13833, 13834.
Supreme Court of South Dakota.
Argued March 22, 1983. Decided June 22, 1983.
335 N.W.2d 342
On appeal, the record and the transcriрt, if included in the record, imparts an absolute verity and is the sole evidence of the trial court‘s proceedings. While all parties are expected to protect themselves on the record, and all parties are obligated to see that the settled record contains all matters necessary for the disposition of the issues raised on appeal, the ultimate responsibility for presenting an adequate record on appeal falls upon the appellant. If the record is incomplete or incorrect, the remedy is by appropriate action or proceedings in the trial cоurt to secure a correction thereof. (citations omitted)
There are questions of material fact precluding summary judgment between appellant and the Bank, for example: Did the Bank give plaintiff the notice required under the agreement to pay rent? Was the Bank an assignee of the lease? Did the Bаnk and plaintiff enter into an accord and satisfaction, etc.? These factual issues are contested. Whether Workmans must indemnify the Bank, if judgment is entered against the Bank on remand, is an open question.
We reverse the summary judgment in favor of the Bank and remand for trial on appellant‘s complaint against the Bank аnd the cross-claims between the Bank and Workmans.
All the Justices concur.
Jon R. Erickson, Asst. Atty. Gen., Pierre, for appellant South Dakota Law Enforcement Standards and Training Commission; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
Daniel R. Moen, Aberdeen, for appellee Richard Ackerson.
Thomas P. Tonner of Maynes, Tonner, Maynes & Tobin, Aberdeen, for appellee Kent Karlen.
HENDERSON, Justice.
PROCEDURAL HISTORY/CHRONOLOGY
September 15, 1981, the Aberdeen, South Dakota Police Chief and the Commissioner of Public Safety jointly notify appellees Ackerson, Sсhmitt, and Karlen that appellees were terminated as Aberdeen police officers due to appellees’ involvement with marijuana. Within three days, appellees filed a notice of appeal with the Civil Service Board for the City of Aberdeen (Aberdeen Board).
September 18, 1981, appellees are notified that the South Dakota Law Enforcement Standards and Training Commission (State Commission) has revoked appellees’ certifications as law enforcement officers pursuant to ARSD 2:01:02:07.
October 26, 1981, appellees petition the State Commission for a hearing on their decertifications.
Octobеr 27, 1981, the Aberdeen Board determines that appellees’ removal was made “in good faith for cause“; however, the Aberdeen Board modifies appellees’ terminations and reinstates appellees as police officers subject to seven-week suspensions without pay.
December 9, 1981, the Stаte Commission determines that since the Aberdeen
December 28, 1981, a due process hearing is held by the State Commission resulting in revocation of appellees’ certifications pursuant to ARSD 2:01:02:07 and ARSD 2:01:02:01(4).
February 16, 1982, appellees appeal the State Commission‘s decision to the circuit court.
June 3, 1982, the circuit court orders reinstatement of appellees’ certifications by ruling:
Clearly, the Commission‘s findings that [appellees‘] actions have discredited the Aberdeen police department and caused them to lose credibility and effectiveness as law officers is not one of the criteria that can be invoked for revoking certification....
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The only grounds for the Commission‘s action in revoking certification that will be considered in this appeal are that the officers have been discharged from their present employment for cause.
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... At their hearing before the Board the decision was to modify the termination to a suspension for seven weeks without pay and rеinstatement at the end of that time. This was not a termination of employment--the Law Enforcement Standards and Training Commission therefore had no grounds for revoking the certifications.
June 8, 1982, the State Commission appeals from the circuit court‘s order.
We affirm the circuit court.
FACTS
In November of 1980, appellee Karlen, while off duty, used marijuana оn at least two occasions. During the same time period, appellee Ackerson discovered marijuana on the police station restroom floor. Subsequently, appellee Ackerson removed the marijuana and placed it in the glove compartment of his personal automobile. According to appellee Ackerson, five months later he removed the marijuana from his automobile and stored it on the front porch of his home. Appellee Ackerson purportedly destroyed the marijuana in May of 1981. In December of 1980, appellee Ackerson witnessed Susan Sobesky, an off-duty police dispatcher, using marijuana. Appellee Ackerson failed to take action or report what he witnessed.
During September of 1980, appellee Schmitt removed marijuana from an abandoned vehicle in Aberdeen, South Dakota. Appellee Schmitt gave the marijuana to a police dispatcher who was accompanying him on patrol. Appellee Schmitt‘s inventory report failed to disclose his discovery of marijuana. Appellee Schmitt initially denied this incident, but later admitted what had transpired.
ISSUES
I.
DOES THE SOUTH DAKOTA LAW ENFORCEMENT STANDARDS AND TRAINING COMMISSION HAVE THE AUTHORITY TO REVOKE LAW ENFORCEMENT OFFICERS’ CERTIFICATIONS, PURSUANT TO THE STANDARDS SET FORTH IN
II.
WERE APPELLEES DISCHARGED FOR CAUSE PURSUANT TO ARSD 2:01:02:07? WE HOLD THAT THEY WERE NOT.
DECISION
I.
A ruling or decision of an administrative agency is upheld unless we find that in light of the entire record, the decision is clearly erroneous or we are left with a firm
Quasi-legislative powers may be delegated by the legislature to state agencies. Oahe Conservancy Subdistrict v. Janklow, 308 N.W.2d 559 (S.D.1981). A legislative delegation of power to an agency must provide a clearly expressed legislative will and sufficient standards for guiding the agency. S.D. Migratory Bird Ass‘n v. S.D. Game, Fish & Parks Comm‘n, 312 N.W.2d 374 (S.D.1981). An agency or commission may not enlarge upon its statutory authority to provide additional regulations even if such additions are advisable. Livestock State Bank v. State Banking Comm‘n, 80 S.D. 491, 127 N.W.2d 139 (1964).
Standards for certifying law enforcement officers are found in
Qualifications prеscribed for law enforcement officers. In addition to the requirements of
§ 23-3-41 , the commission, by rules and regulations, shall fix other qualifications for the employment and training of appointed law enforcement officers, including minimum age, education, physical and mental standards, citizenship, good moral charactеr, experience, and such other matters as relate to the competence and reliability of persons to assume and discharge the various responsibilities of law enforcement officers, and the commission shall prescribe the means for presenting evidence of fulfillment of these requirements.
ARSD 2:01:02:01 draws upon
As for decertification,
(3) Certify persons as being qualified under the provisions of §§ 23-3-26 to 23-3-47, inclusive, to be law enforcement officers, and by rule to establish criteria and procedure for the revocation or suspension of the certification of officers who are convicted of a felony оr misdemeanor involving moral turpitude, have intentionally falsified any application or document to achieve certification, or have been discharged from employment for cause.
Premised upon
Revocation of certification of law enforcement officer. Upon the application of аny person or upon the application of any member of the division of criminal investigation and upon proof that a certified law enforcement officer has been convicted of any misdemeanor involving moral turpitude or a felony, falsified any information required to obtain certification or been discharged for cause from present employment as a police officer, the commission shall revoke the certification of such law enforcement officer.
After appellees’ hearing, the Commission determined:
That Karlen, Ackerson and Schmitt had been discharged for cause from present employment as police officers as set forth in ARSD 02:01:02:07.
That Karlen‘s, Ackerson‘s and Schmitt‘s actions had discredited the Aberdeen Police Department and caused them to lose credibility and effectiveness as law en-
Appellant urges this Court to hold that the State Commission has the power to rule that a law enforcement officer‘s certification has lapsed because the officer no longer meets the requirements of his original certification. We are unwilling to so hold.
II.
Revised Aberdeen City Ordinance 15-67 Section 21-84 provides in part:
The investigation shall be confined to the determination of the question of whether such removal, suspension, demotion, or discharge was or was not made for political or religious reasons and was not made in good faith for cause.
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(c) The board upon such investigation, in lieu of affirming the removal, suspension, demotion or discharge may modify the order of the removal, suspension, demotion or discharge by directing a suspensiоn without pay for a given period and subsequent restoration of duty, or demotion in classification, grade or pay.
Since appellees were discharged from their employment pursuant to marijuana involvement allegations that could adversely impact upon appellees’ reputations and аbility to obtain future employment, appellees’ termination was unresolved until the Aberdeen Board ruled in a due process hearing that appellees were terminated for just cause. See Deuter, 330 N.W.2d at 537. If appellees would have failed to appeal their terminations to the Aberdeen Board, the decision of the Police Chief would have been controlling.
An analysis of the Aberdeen Board‘s determination is dispositive of this appeal. On October 27, 1981, the Aberdeen Board determined “the removal was not made for political or religious reasons and was made in good faith for cause.” However, most importantly, thе Aberdeen Board went on to modify the termination: “said officer is to lose all pay for seven (7) weeks, commencing with the date of his removal, and thereafter said officer shall be restored to duty.”
Since these appeals are from the circuit court‘s reversal of the State Commission‘s action, the merit оf the Aberdeen Board‘s action is not before us and thus, it is not within our province to question the wisdom of the Aberdeen Board‘s decision. Undeniably, the Aberdeen Board suspended, rather than discharged, appellees. Therefore, the requirements of
Affirmed.
DUNN and MORGAN, JJ., concur.
WOLLMAN, J., concurs specially.
FOSHEIM, C.J., dissents.
Much as I would like to join Chief Justice Fosheim‘s dissenting opinion, I am compelled to agree with the majority opinion that the effect of the Aberdeen Civil Service Board‘s decision was that appellees had not been discharged from employment for cause within the meaning of
FOSHEIM, Chief Justice (dissenting).
The State Commission is empowered to decertify “officers who ... have been discharged from employment for cause.”
We review this administrative decision in the same light as did the circuit court. We must uphold the State Commission‘s dеcision unless we conclude it is clearly erroneous or are left with a firm and definite conviction that a mistake has been made. Deuter v. South Dakota Highway Patrol, 330 N.W.2d 533 (S.D.1983). The decision of the State Commission was not clearly erroneous or was it a mistake. The Aberdeen Board‘s attempt to modify the “discharge” to a suspension was not controlling.