                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1042
                               Filed April 19, 2017


CITY OF DES MOINES, IOWA,
      Plaintiff-Appellee,

vs.

TRAVIS HURLEY,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,

Judge.



       A former employee appeals the district court’s order upholding his

termination. AFFIRMED.




       Charles E. Gribble and Heidi M. Young of Parrish Kruidenier Dunn Boles

Gribble Gentry Brown & Bergmann, L.L.P., Des Moines, for appellant.

       Carol J. Moser, Deputy City Attorney, and Douglas P. Philiph, Assistant

City Attorney, for appellee.



       Heard by Vogel, P.J., and Doyle and McDonald, JJ.
                                        2


VOGEL, Presiding Judge.

      Travis Hurley claims the district court erred in reversing the decision of the

Des Moines Civil Service Commission (the Commission) and upholding the City

of Des Moines Fire Department’s (the Department) decision to terminate his

employment. Specifically, Hurley claims the district court improperly shifted the

burden of proof onto him and failed to consider relevant mitigating factors

regarding the termination decision. The City of Des Moines (the City) asserts the

decision to terminate Hurley was appropriate. Because we conclude termination

was an appropriate sanction for Hurley’s misconduct, we affirm.

      I.     Background Facts and Proceedings

      The Department hired Hurley as a firefighter in 2002. In February 2003,

while still completing his probationary period of employment, Hurley was

convicted of operating a motor vehicle while intoxicated (OWI).        After being

notified of Hurley’s conviction, the fire chief at the time—Phillip Vorlander—sent

Hurley a letter warning “any further incidents related to your operating a motor

vehicle while under the influence of alcohol will result in termination of your

employment with the City of Des Moines and, in fact, any breach of the conduct

expected of a member of our department jeopardizes your employment.” The

letter also suggested Hurley consider participating in the employee assistance

program if he felt he needed services. As a result of his conviction, Hurley’s

driver’s license was suspended for ninety days.       Because the Department’s

policy required firefighters to maintain a driver’s license as a condition of

employment, Hurley was placed on unpaid leave until his license was restored.
                                           3


Following restoration of his driver’s license, Hurley returned to duty as a

firefighter.

        In April 2009, John TeKippe succeeded Vorlander as fire chief.              In

September 2009, TeKippe promulgated a revised Department Rule 29, which

dealt with the licensing requirements Department personnel were required to

maintain as part of their employment. The memo announcing the revision stated:

                 Historically, this rule re-stated driver’s license requirements,
        but was mainly the mechanism by which the DMFD [Des Moines
        Fire Department] initiated review and discipline of events
        surrounding driving while intoxicated charges (180 day language).
        While appropriate, administration within this area failed to fully
        encompass the significance of driver’s license and EMT certification
        maintenance, their requirements in the work place, or the
        significance of the impact of on-or-off duty conduct, including
        alcohol or drug usage, either as a DMFD employee or civil servant.
                 Specific to this rule, chronic, habitual, or significant use of
        drugs or alcohol, or criminal acts, can lead to loss of unrestricted
        driver’s licenses and/or EMT certifications. Loss of these licenses
        or certifications can lead to loss of employment and/or an
        employee’s right to be at work for the DMFD for the given period of
        restriction. While assessed individually, employees who lose
        their unrestricted licenses or EMT certifications should not
        assume the department will accommodate their inability to be
        at, or perform, work. In addition to this rule, chronic, habitual, or
        significant use of drugs or alcohol, or criminal acts, can lead to loss
        of civil service status, and therefore, employment.
                 A review of our past outcomes in this area indicates that the
        department needs a consistent approach and response to changes
        in license and certification status, as well as a renewed ownership
        of our roles as responders, bread winners, and persons held to a
        higher standard in our community.              Thirty-nine events were
        reviewed that could directly impact these requirements by the DOT
        [Department of Transportation], Iowa Bureau of EMS, the DMFD
        Medical Director, and the Fire Chief, and included multiple
        occurrences of domestic violence, OWI, possession of controlled
        substances, public intoxication, intoxication while on duty,
        solicitation, and others. To say the least, the department response
        has not been consistent, and thus, many have taken a less-than-
        concerned approach to these issues.
                 No member of the DMFD should have to be reminded, by
        this memo, of the significance of the requirements of their position
                                         4


       or that loss of licenses or certifications directly jeopardizes their
       employment. However, this memo serves as that reminder.
               Should an employee find themselves in need of assistance
       regarding drug or alcohol usage, or other assistance, the
       department will do all in its power to provide help, whether via the
       Employee Assistance Program, peer assistance, Chaplain services,
       or other appropriate means. However, the time for help is always
       “now” and not a means to mitigate loss of required licenses or
       certifications, which are a separate matter.

Hurley signed a copy of revised Rule 29.

       On May 18, 2014, Hurley was arrested for operating a motor vehicle while

intoxicated and taken to jail.    Hurley was scheduled to work at 7 a.m. that

morning but called the acting shift commander from the jail at 4:30 a.m. and

notified him that Hurley would be using sick leave. At that time, Hurley did not

divulge any information related to his arrest.     On May 19, 2014, Hurley met

TeKippe in his office and told him about his arrest.

       On May 27, 2014, Hurley appeared before three members of the

Department—an assistant chief, a district chief, and a human resources

manager—for a predetermination hearing regarding potential violations of

Department rules relating to his arrest and charges.        On May 29, the DOT

suspended Hurley’s driver’s license for one year.1 On June 11, 2014, TeKippe

sent Hurley a letter informing him of his termination:

               Your first notification of this event to a Chief Officer was on
       Monday, May 19, 2014, and not when you requested to be placed
       on sick leave the morning of May 18, 2014, from jail. On May 27,
       2014, prior to the processing of any appeals, the Iowa DOT website
       listed your driver’s license as revoked from May 29, 2014 to May
       28, 2015.
               Your conduct, as described in the police report, and affirmed
       by you, is egregious. Your judgment, decisions, and actions placed

1
 Hurley’s license was not formally revoked until October as he appealed the DOT’s
decision.
                                         5


       you, and citizens, in danger. Additionally, you chose to call in on
       sick leave from jail to conceal your actions.
              With your second chance, repeated acknowledgement of
       your expectations, training and support provided, you again chose
       to not govern yourself accordingly. You have failed to live up to the
       trusts and responsibilities of a city of Des Moines employee and
       member of the Fire Department, whether they are measured
       against the expectations articulated by the Fire Chief, department
       rules and regulations, or conduct generally.

Hurley appealed TeKippe’s decision to the Commission.            On June 26, the

Department filed a specification of charges, which generally repeated TeKippe’s

explanations in the letter for the termination decision. On January 22, 2015,

Hurley pled guilty to operating while intoxicated first offense, in violation of Iowa

Code section 321.J2 (2014). The Commission reversed TeKippe’s termination

decision: “Upon deliberation, the Commission believed that there was

misconduct, but that the City’s decision to terminate was too severe of a sanction

for that misconduct. The majority of the Commission who heard the hearing

voted to impose a suspension rather than termination.”

       The City appealed the Commission’s decision to district court. On June 9,

2016, the district court reversed the Commission’s decision and affirmed the

Department’s decision to terminate Hurley:

       In conclusion, fire chief TeKippe made what was no doubt a very
       difficult decision. However, the decision was not arbitrary. Rather,
       it was reasoned. The combination of Hurley’s: loss of driving
       privileges for one year as the result of an OWI; misuse of sick
       leave; and conduct of driving while drunk, reflecting adversely on
       the department, warranted discharge.

Hurley appeals.
                                          6


       II.    Standard of Review

       We review the district court’s decision de novo.           Dolan v. Civil Serv.

Comm’n, 634 N.W.2d 657, 662 (Iowa 2010). We give weight to the findings of

the district court, but we are not bound by them.           Id.   We make our own

independent findings as to whether the discipline imposed was appropriate. Id.

       III.   Hurley’s Termination

       Hurley challenges the district court’s decision upholding his termination,

claiming the district court improperly placed the burden on him to show the

termination decision was arbitrary and failed to consider his entire work record,

prior acts of misconduct, existing precedent, and lack of a standard policy in

determining the decision was appropriate. Ultimately, Hurley argues the decision

to terminate him was not appropriate and that he is entitled to reinstatement with

back pay and benefits.

       When a district court hears an appeal from a decision of a civil service

commission, the appeal is “a trial de novo as an equitable action.” Iowa Code

§ 400.27 (2015)2; Dolan, 634 N.W.2d at 662. In a trial de novo, the district court

is not simply reviewing the decision of the lower body; rather, “a statute providing

for a ‘trial de novo’ in the district court contemplates a trial in the general meaning

of the term.” Dolan, 634 N.W.2d at 662. Thus, the district court may receive new

evidence and choose from the full range of remedies available to the initial

decision-maker. Id. Upon our review on appeal, we independently examine the




2
 Shortly after this case was filed, the legislature amended chapter 400. See 2017 Iowa
Legis. Serv. H.F. 291.
                                          7

factual record and determine whether the discipline was appropriate.3 City of

Des Moines v. Civil Serv. Comm’n, 513 N.W.2d 746, 748 (Iowa 1994).

       Iowa Code section 400.19 provides the “chief of the fire department, may

peremptorily suspend, demote, or discharge a subordinate then under the . . .

chief’s direction for neglect of duty, disobedience of orders, misconduct, or failure

to properly perform the subordinate’s duties.” As the code does not elaborate

further on reasons for termination, we are permitted to look to the rules and

regulations of the Department as well as existing precedent for guidance. See

Dolan, 634 N.W.2d at 663 (“Although the parameters are unclear, we may look to

the Davenport Fire Department’s own rules and prescribed code of conduct as

well as existing precedent for guidance.”).

       Three of the Department’s rules seem to apply to Hurley’s conduct. Rule

3 of the Department’s rules states: “Members of the Department shall be held

accountable for their conduct, which must be above reproach at all times,

whether on duty, off duty, or on leave.” Rule 29, as quoted above, requires

members of the Department to maintain a valid Iowa driver’s license. Rule 20

provides: “Sick leave is a benefit intended to provide income replacement for

periods when an employee is unable to work due to illness or injury or the

serious illness or injury of a member of his or her immediate family.” Hurley does

not dispute he committed the crime of operating while intoxicated, lost his driving

privileges for one year as a result of his guilty plea, and used his sick leave when

3
  We agree with Hurley the district court erred by narrowing its review only to the
question whether the decision to terminate Hurley was arbitrary, rather than a trial de
novo with the district court making an independent judgment regarding the appropriate
discipline. As we also are required to engage in an independent examination of the
record and determine the proper sanction, we continue to the merits.
                                         8


he was not ill or injured but rather was in jail following his arrest. Hurley also

acknowledges that he was aware of the Department’s rules governing his

conduct. Based on our review of the factual record, we agree with the district

court’s conclusion that Hurley’s actions constituted misconduct for the purposes

of section 400.19.   See Dolan, 634 N.W.2d at 663–64 (finding a firefighter’s

violation of the law and departmental rules constituted misconduct under section

400.19).

       We now turn to the question whether termination was an appropriate

sanction in response to Hurley’s misconduct. See id. at 664. In doing so, we

consider Hurley’s prior history of misconduct along with the most recent acts of

misconduct. Id. Additionally, we balance the evidence in the record, including

any mitigating circumstances. Id.

       Iowa Code section 400.18(1) provides: “A person holding civil service

rights as provided in this chapter shall not be removed, demoted, or suspended

arbitrarily, except as otherwise provided in this chapter . . . .” Our supreme court

has noted: “The review process under chapter 400 exists to protect and shield

public employees from arbitrary and capricious removal.” Dolan, 634 N.W.2d at

665.    Additionally, in determining whether termination of a firefighter was

appropriate, our supreme court has emphasized that the primary objective of the

fire chief’s disciplinary power under section 400.19 “is to protect the public

interest.” Id. at 664 (“Firefighters have a duty to maintain the public trust and

confidence, and they run afoul of this duty when they exercise a lack of judgment

and discretion.”).
                                          9


       It is in the public’s interest that firefighters refrain from operating vehicles

while intoxicated and maintain valid driver’s licenses.            By driving while

intoxicated, Hurley demonstrated poor judgment, a lack of restraint, and a

disregard for public safety. See id. at 665. In the context of his occupation as a

firefighter, these traits are particularly troubling as Hurley is responsible for

operating a vehicle and protecting public safety during the course of his normal

duties. See id. (“Furthermore, Dolan’s conduct reflected poorly on his ability to

fulfill his role as a firefighter.”). We also find it relevant that Hurley was arrested

around 2 a.m. with a blood alcohol level of .147 percent when he was scheduled

to report for duty at 7 a.m. Further, although Hurley’s previous OWI was several

years prior, it is significant that this incident was a repeated incident of

misconduct after Hurley was explicitly warned after his first OWI that further

incidents would jeopardize his employment. Hurley’s conduct was exacerbated

by the fact that it caused him to lose his driver’s license, placing him in violation

of a reasonable Departmental rule. Finally, as a result of his arrest, Hurley was

unable to be at work the next day and chose to use sick leave, contrary to

Department policy, rather than immediately disclose to his superiors that he had

been arrested for an OWI.4

       Hurley argues that the Department has not consistently applied a policy

that the type of misconduct he engaged in would result in termination.               In

addressing the revision of the Department’s Rule 29 in light of prior disciplinary

actions, TeKippe said:


4
 We do believe it weighs in Hurley’s favor that he did not engage in a prolonged cover-
up of his conduct and disclosed it to TeKippe the following day.
                                         10


              Q. Just because you had two people arrested for OWI, why
       did that accelerate your review of the rule? A. Because we had a
       period of several years, about six or seven years or roughly the
       time that I was a union president where we had a lot of alcohol-
       related and OWI-related activity that did not meet with a consistent
       outcome regarding discipline or assistance to people. Two events-
       —two new events so new in my time as the fire chief was just really
       important for me to get a handle on this because of how important
       these are to our work and our image.
              Q. Talk a little bit about that. Why is the prevention of
       alcohol-related arrests important to the Des Moines Fire
       Department’s image? A. Well, these kind of things, one, directly
       threaten our ability to have the licenses and the certifications we
       need to get work in the first place. But as a fire service person and
       a member of the Des Moines Fire Department, we are held to a
       higher standard. A lot of our work relies on people’s ability to trust
       us, our credibility, and when it comes to OWIs, our firefighters go
       out and talk to high school kids about the dangers of drinking and
       driving and all of the bad things that can happen. It destroys our
       credibility to have those same people out drinking and driving,
       getting arrested for OWI, and having their picture or name on the
       internet and having that story told. It reflects terribly on us and it
       just—our mission is to respond and save people, not to place
       people in danger.

TeKippe’s revision of Rule 29 and enforcement of it against Hurley was a

response to the very inconsistency Hurley now cites as evidence to support his

contention that he should not have been terminated. After the adoption of the

rule, there is no evidence that a firefighter returned to active duty after committing

a second OWI. TeKippe’s explanation of the revision of the rule strikes us as a

reasonable reaction to misconduct that threatened the image of the Department

and the public interest. Thus, we are not influenced by the inconsistent discipline

applied to the type of conduct Hurley engaged in prior to revision of Rule 29.

       Hurley also urges that his good work history and pursuit of substance-

abuse and mental-health treatment immediately following his arrest are mitigating

factors weighing against termination being an appropriate sanction for his
                                        11


misconduct. While we agree these factors reflect well on Hurley, we cannot

conclude that they outweigh the seriousness of Hurley’s misconduct. See id.

(finding evidence the employee no longer consumed alcohol had no impact on

the issue of misconduct). Hurley’s conduct violated multiple Departmental rules

and, as TeKippe explained, posed a unique threat to the public trust that is

essential for the Department to be successful. See id. at 666 (“[P]ublic trust is

essential for the fire department to operate efficiently.”). Upon our independent

review of the factual record, we conclude Hurley’s termination was appropriate.

       IV.    Conclusion

       Because we conclude termination was an appropriate sanction for

Hurley’s misconduct, we affirm the district court’s order upholding his termination.

       AFFIRMED.
