                       IN THE COURT OF APPEALS OF IOWA

                                    No. 15-0213
                             Filed December 23, 2015


STANLEY R. WALK,
    Plaintiff-Appellant,

vs.

BOARD OF EDUCATION OF THE ST. ANGSAR
COMMUNITY SCHOOL DISTRICT,
     Defendant-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Mitchell County, James M. Drew,

Judge.



       A former substitute bus driver appeals the district court’s decision, which

rejected his claim that he is entitled to a veterans preference hearing, pursuant to

Iowa Code chapter 35C (2013), prior to his termination from the school district.

AFFIRMED.




       Judith OʼDonohoe of Elwood, OʼDonohoe, Braun, & White, L.L.P., Charles

City, for appellant.

       Jeffrey A. Krausman and Patrick E. Shanahan of Dickinson, Mackaman,

Tyler & Hagen, P.C., Des Moines, for appellee.



       Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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VOGEL, Judge.

       Stanley Walk worked as a part-time substitute school bus driver for the St.

Ansgar School District during the 2012/2013 school year.            A member of the

public took a picture of Walk discharging children from the bus on January 3,

2013, while the bus’s stop arm was not extended and the warning lights were not

activated. The picture was provided to the school district superintendent, Jody

Gray, who confirmed the violation by using the bus’s security camera.               After

meeting with Gray and the school district’s transportation director, Walk was

discharged from his position on January 14, 2013, due to the violation.

       On April 4, Walk wrote the school district a letter informing the school

district he was a veteran and requesting a hearing pursuant to Iowa Code section

35C.6 (2013).1 The school district responded that no such hearing was required

because Walk was an at-will employee. However, ultimately a hearing was held

before the school board on October 28, 2013, “to make a final decision on the

termination of the employment of Stanley Walk as a substitute bus driver.” The

attorney for the school board, Patrick Rourick, confirmed that the hearing was




1
  This code provisions provides:
               No person holding a public position by appointment or
        employment, and belonging to any of the classes of persons to whom a
        preference is herein granted, shall be removed from such position or
        employment except for incompetency or misconduct shown after a
        hearing, upon due notice, upon stated charges, and with the right of such
        employee or appointee to a review by a writ of certiorari or at such
        person’s election, to judicial review in accordance with the terms of the
        Iowa administrative procedure Act, chapter 17A, if that is otherwise
        applicable to their case.
Iowa Code § 35C.6.
                                            3


being held pursuant to Iowa Code section 321.375,2 not pursuant to the veterans

preference statute. The board issued its decision the same day, finding: (1) Walk

discharged students without engaging the warning lights or stop arm of the bus;

(2) this was a violation of Kadyn’s Law in Iowa Code section 321.372; (3) the

failure to engage the warning lights and stop arm was a “significant mistake”;

(4) the failure was not an intentional act; and (5) the provision of Walk’s

employment contract providing the driver can be dismissed at any time for failing

to conform to all the laws of the State of Iowa was applicable in this case. The

board then took a vote at which all members confirmed and upheld the

superintendent’s decision to terminate Walk from his employment.

       On November 15, 2013, Walk filed an “appeal pursuant to section 35C.5”

with the district court,3 asking

       the court [to] hear this matter including any additional evidence
       which is necessary to complete the record and reinstate [Walk] in a
       bus driving position . . . for one or more of the following reasons:
       (1) a failure to terminate in accordance with the requirements of
       Chapter 35C from the substitute bus driving position; (2) a failure to
       hire Stanley R. Walk for a subsequently open full time and/or
       substitute bus driving position; and (3) for failing to generally follow

2
   This section provides, in part:
                   3. Any of the following shall constitute grounds for the immediate
         suspension from duties of a school bus driver, including a part-time or
         substitute bus driver, pending a termination hearing by the board of
         directors of a public school district or the authorities in charge in a
         nonpublic school, or pending confirmation of the grounds by the employer
         of the school bus driver if the employer is not a school district or
         accredited nonpublic school:
                   ....
                   d. The commission of or conviction for a public offense as defined
         by the Iowa criminal code, if the offense is relevant to and affects driving
         ability, . . . .
3
   We note Walk was terminated without a hearing on January 14, 2013, but he did not
file a notice of appeal with the district court alleging his entitlement to a predischarge
hearing until November 15, 2013. No party raised or addressed the timeliness of Walk’s
appeal to the district court; thus, we do not address it in this opinion.
                                          4


       the procedures and protections for Veterans set out in Chapter 35C
       in connection with either his termination, subsequent failure to
       rehire, or ultimate termination by virtue of the decision . . . .

The school district filed an answer denying Walk’s claims and asserting a number

of affirmative defenses. The court set a briefing schedule for the parties and held

a hearing on November 10, 2014. In its written decision, filed January 7, 2015,

the court found that while Walk is a veteran and covered by chapter 35C in his

work as a part-time substitute bus driver, the contract Walk signed contained

provisions that were incompatible with the protections contained in section

35C.6, and thus, Walk waived the veterans preference statute when he signed

the contract.4

       Walk filed a notice of appeal, claiming it was an error for the district court

not to remand the case to the school board so the school board could hold a

hearing pursuant to section 35C.6.       Walk maintains that without information

about the execution of the 2012/2013 bus driving contract, it is impossible for the

school board to sustain its burden of proof on its claim that the contract waived

Walk’s veterans preference rights.      In addition, assuming we agree the case

should be remanded to the school board, Walk asks that we direct the hearing to

include a calculation of monetary damages for the delay in holding the

predischarge hearing under section 35C.6.

       Because the case was decided at law, our review is for the correction of

errors at law. See Iowa R. App. P. 6.907. The employment contract Walk signed

for the 2012/2013 school year stated, “Employment of employee is ‘at-will.’

4
 The court also concluded, pursuant to section 35C.5, Walk failed to timely appeal the
school district’s refusal to rehire him for open bus driving positions. Walk does not
contest this finding on appeal.
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Either party may terminate this contract by giving two weeks written notice.” In

addition, the contract provided,

              The district may terminate this contract and dismiss the
       employee at any time for failure to conform to all laws of the State
       of Iowa and rules promulgated by the Iowa Department of
       Education applicable to drivers of school buses; provided, however,
       this provision shall not limit the right of the district to otherwise
       terminate this contract.

In contrast, Iowa Code section 35C.6, provides,

              No person holding a public position by appointment or
       employment, and belonging to any of the classes of persons to
       whom a preference is herein granted, shall be removed from such
       position or employment except for incompetency or misconduct
       shown after a hearing, upon due notice, upon stated charges, and
       with the right of such employee or appointee to a review by a writ of
       certiorari or at such person’s election, to judicial review in
       accordance with the terms of the Iowa administrative procedure
       Act, chapter 17A, if that is otherwise applicable to their case.

(Emphasis added.) Under the employment contract, Walk agreed he could be

terminated at any time based on a failure to conform to the laws of the State of

Iowa. However, under section 35C.6, Walk, as a veteran, was provided with the

protection to be terminated only for incompetency or misconduct and only after

he was given a hearing. We agree with the district court that these provisions

are incompatible and cannot be incorporated into the other—either Walk can be

terminated at any time due to a violation of the laws of the State under the

employment contract or Walk can only be terminated after a hearing where it is

proved he is incompetent or committed misconduct under the veterans

preference statute.

       The protections under the veterans preference statute are waivable.

Halsrud v. Brodale, 72 N.W.2d 94, 99 (Iowa 1955) (“That rights that might
                                         6


otherwise exist may be waived cannot be seriously disputed; and this seems

especially clear when the waiver is by written contract. This is true even when

the rights are granted by statute, unless the statute is intended to protect the

general rights of the public rather than private rights.”); see also Cont’l Cas. Co.

v. G.R. Kinney Co., 140 N.W.2d 129, 130 (Iowa 1966) (“Waiver is everywhere

defined as the intentional relinquishment of a known right. It may be shown by

affirmative act of the party charged therewith, or it may be inferred from such

conduct as warrants the conclusion that a waiver was intended.”).

       Walk signed the employment contract agreeing to the terms, which

included the termination provisions. Sorenson v. Andrews, 264 N.W. 562, 566

(Iowa 1936) (noting the “Soliders’ Preference Act,” which provided the solider

could only be discharged for incompetence or misconduct after a hearing, did not

prevent courthouse custodian from being discharged after his one-year contract

expired). “One who makes a written offer which is accepted, or who manifests

acceptance of the terms of a writing which he should reasonably understand to

be an offer or proposed contract, is bound by the contract, though ignorant of the

terms of the writing or of its proper interpretation.” Durst v. Bd. of Dirs. Of Gaza

Consol. Sch., 292 N.W. 73, 76 (Iowa 1940) (finding school janitor executed a

contract for one year and thus was not entitled to the protections from discharge

in the “Soldiers’ Preference Law” at the end of the one-year term).

       We agree with the district court that Walk waived the veterans preference

statute’s protections regarding discharge when he entered into a contract that

contained provisions that were contrary to the statutory terms. No further hearing

in front of the school board is necessary to flesh out the nature of the
                                         7


employment contract or the waiver of the veterans preference statute provisions

regarding discharge, as Walk requests on appeal. We also need not address

Walk’s second claim on appeal regarding a remand for calculation of monetary

damages.

      We affirm the district court’s decision.

      AFFIRMED.
