               IN THE SUPREME COURT OF IOWA
                                No. 08–0596

                           Filed January 8, 2010


STEVEN C. LEWIS,

      Appellee,

vs.

CIVIL SERVICE COMMISSION OF THE
CITY OF AMES, IOWA AND CITY OF AMES,
IOWA,

      Appellants.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Story County, Michael J.

Moon, Judge.



      Appeal      from   judgment   reversing   civil   service   employee’s

termination. COURT OF APPEALS JUDGMENT VACATED; DISTRICT

COURT JUDGMENT REVERSED.



      Judith K. Parks, Assistant City Attorney, Ames, for appellants.



      Jay M. Smith and MacDonald Smith of Smith & McElwain Law

Office, Sioux City, for appellee.
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STREIT, Justice.

        Steven Lewis, a former civil service employee, argues the City of

Ames arbitrarily terminated his employment. The city terminated Lewis

from the public works department because Lewis’s driver’s license was

suspended for six months after an arrest for operating while intoxicated.

We uphold the termination because Lewis failed to maintain his driver’s

license, which was required for his position.
        I. Background Facts and Prior Proceedings.

        Lewis was employed in the public works department, street

operations division, of the City of Ames as a maintenance worker. He

had worked for the public works department for eighteen years. On June

3, 2006, Lewis was arrested for operating while intoxicated (OWI).

Lewis’s license was suspended from September 8, 2006 until March 8,

2007.

        Lewis told the director of the public works department of his OWI

arrest and later informed the director his license would be suspended for

six months. Maintenance workers were required to have a class “A” or

“B” commercial driver’s license (CDL). Representatives from the human

resources department, the city manager’s office, and the public works
department held several meetings to determine whether and how Lewis

should be disciplined. Eventually, the public works department alerted

Lewis in writing that the city was planning to terminate his employment,

told him the reason for this determination, and scheduled a pre-

disciplinary hearing.     After the pre-disciplinary hearing, the city

terminated Lewis’s employment on September 7, 2006.

        Lewis appealed his termination to the City of Ames Civil Service

Commission.      The commission upheld the termination.      Lewis then

appealed to the district court, which, after trial, overturned the
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termination and held it was arbitrary. The court of appeals affirmed the

district court and the commission sought further review.

       II. Scope of Review.

       This court reviews the district court’s decision de novo. Civil Serv.

Comm’n v. Johnson, 653 N.W.2d 533, 537 (Iowa 2002). We give weight to

the district court’s findings but are not bound by them. Dolan v. Civil

Serv. Comm’n, 634 N.W.2d 657, 662 (Iowa 2001). “[W]e independently
construe the factual record as a whole to determine if the [] discipline

was warranted.” City of Des Moines v. Civil Serv. Comm’n, 513 N.W.2d

746, 748 (Iowa 1994) (emphasis omitted).

       III. Merits.

       Iowa Code chapter 400 (2005) controls civil service employment

within the state.      Iowa Code section 400.18 provides that civil service

employees cannot be terminated arbitrarily:

             No person holding civil service rights as provided in
       this chapter shall be removed, demoted, or suspended
       arbitrarily, except as otherwise provided in this chapter, but
       may be removed, demoted, or suspended after a hearing by a
       majority vote of the civil service commission, for neglect of
       duty, disobedience, misconduct, or failure to properly
       perform the person’s duties.

Section 400.19 allows the city manager1 to “peremptorily suspend,
demote, or discharge a subordinate then under the person’s . . . direction

for neglect of duty, disobedience of orders, misconduct, or failure to

properly perform the subordinate’s duties.”

       After an employee has been suspended, demoted, or discharged,

the employee may appeal to the civil service commission, which “may

affirm, modify, or reverse any case on its merits.” Iowa Code § 400.27.


       1Section  400.19 refers to “[t]he person having the appointing power as provided
in this chapter.” Section 400.15 notes that in cities under a city manager plan, the city
manager has appointing power.
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Further appeal to the district court is then allowed for “trial de novo.” Id.

We have held the statutory language permitting a trial de novo allows

either party to introduce evidence that was not introduced before the

commission. Dolan, 634 N.W.2d at 662 (“[I]n a trial de novo, the court

hearing the case anew is permitted to receive evidence additional to that

presented to the commission.”) The trial de novo also “normally permit[s]

the district court to select [from] the same remedies that were available
before the commission.” Id. “Throughout the trial court and appellate

court proceedings, the commission has the burden of showing that the

discharge was statutorily permissible,” Smith v. Des Moines Civil Serv.

Comm’n, 561 N.W.2d 75, 77 (Iowa 1997), and we give no weight to or

presumption in favor of the commission’s determination.         Sieg v. Civil

Serv. Comm’n, 342 N.W.2d 824, 828 (Iowa 1983).          Instead, this court

“independently construe[s] the factual record as a whole to determine if

the [employee’s] discipline was warranted.”       City of Des Moines, 513

N.W.2d at 748 (emphasis omitted). Here, the factual record consists of

testimony and exhibits entered before the district court.

      It is improper for a civil service employee to be removed, demoted,

or suspended for reasons other than those found in sections 400.18 and
400.19: neglect of duty, disobedience, misconduct, or failure to properly

perform the person’s duties.      See Smith, 561 N.W.2d at 79 (holding

employee’s failure of medical examination did not constitute inability to

perform job duties where exam was not part of a standardized personnel

policy and therefore discharge was inappropriate); Clay v. City of Cedar

Rapids, 577 N.W.2d 862, 865 (Iowa Ct. App. 1998) (holding employee’s

refusal to enter office of superior who had previously touched employee

inappropriately was not misconduct and therefore did not support

discharge). Similarly, this court has authority to reject sanctions that
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are disproportionate to the employee’s improper conduct and impose a

different disciplinary sanction. Dolan, 634 N.W.2d at 663 (“[W]e are also

entitled to modify the Commission’s decision on our de novo review if we

conclude suspension was the more appropriate sanction in this case.”).

      The legislature did not define the terms “neglect of duty,

disobedience, misconduct, or failure to properly perform the person’s

duties.”   Iowa Code §§ 400.18, 400.19.      In determining whether an
employee’s actions fall within these categories, “we may look to the

[department’s] own rules and prescribed code of conduct as well as

existing precedent for guidance.” Dolan, 634 N.W.2d at 663. We have

referred to department policies in support of an employee’s termination.

Id. We have also relied on the lack of a standard policy in reversing a

termination decision. In re Fairbanks, 287 N.W.2d 579, 582 (Iowa 1980).

In Fairbanks, this court held an auto mechanic could not be terminated

because of his refusal to submit to a polygraph exam, noting that “such a

condition does not appear within the work description of an Auto

Mechanic I.” Id.

      The city terminated Lewis based on its miscellaneous policy 20.3.

Miscellaneous policy 20.3, entitled “Maintenance of Credentials,” states:

      The maintenance of qualifications is the responsibility of
      every employee and is an essential function of all City jobs.
      As a condition of continuing employment, an employee must
      maintain all licenses or certification credentials specified in
      the current class specification for the employee’s job, or
      required by federal, state, or City law. An employee shall
      notify the department head immediately in the event of loss
      of a required credential.      Failure to maintain required
      credentials shall be considered grounds for termination of
      employment.

The policy further addresses the appropriate discipline, based on a

variety of circumstances, for a failure to maintain credentials.        Policy

20.3 states an employee who does not maintain a required credential
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“shall be terminated” where the activity requiring a credential is the “core

defining function of the job” or “[t]he department is unwilling to allow the

employee to continue to work because of cost, lost productivity or other

negative impact.” If the activity is not the defining function of the job,

the employee may be granted an unpaid leave of absence or be allowed to

continue working without performing that activity.

      City officials discussed the appropriate response to Lewis’s failure
to maintain his driver’s license according to policy 20.3.       These city

officials included the director of public works, the director of human

resources in the city manager’s office, the assistant city manager, the city

manager, the division head for the streets division, and the supervisor for

the streets division.    These city employees testified they decided to

terminate Lewis because they concluded maintenance of a driver’s

license was a “core defining function” of his job position, and therefore,

termination was the appropriate response to Lewis’s failure to maintain a

license. The city relies on the job description of maintenance worker for

its determination that driving is a “core defining function of the job.” The

job description for maintenance worker frequently emphasizes the

driving involved in the position:
      Examples of Essential Job Functions: Drives and operates
      trucks, tractors, and other motorized equipment with various
      attachments . . . .

      Equipment Essential to the Job: A variety of motor vehicles
      and heavy equipment including pick-up trucks, dump
      trucks, aerial boom trucks, end loaders and backhoes . . . .

      Licenses and Certificates: Must possess a valid type A or B
      Commercial Driver’s License depending on assignment . . . .
      The streets department has seven single-axle dump trucks, three

tandem-axle dump trucks, one road grader, one loader, three backhoes,

and two pickups with plows on them which employees are expected to
                                     7

operate. City officials who testified emphasized that Lewis’s license was

suspended during much of the winter season, which was problematic

because snow removal from the streets is a significant portion of the

maintenance worker position during that time of year.             The city

considered whether there were any alternative duties within the public

works department that Lewis could perform during the time period in

which his license was revoked and did not find anything “suitable or
acceptable.”

      The director of human resources testified the city officials also felt

termination was appropriate because the city policy provided for

employee termination if the department is “unwilling to allow the

employee to continue work because of cost, lost productivity or other

negative impact.” Under this provision, those involved did not believe it

was appropriate to displace another employee to accommodate Lewis.

      Lewis argues there were a number of ways the city could have

accommodated     his   license   revocation    without   terminating     his

employment and therefore his termination was arbitrary.                Lewis

introduced evidence that the city could have placed him on unpaid leave

during the period in which his license was revoked. At the time Lewis
was terminated, there were two maintenance worker positions available

and after his termination, a third became available. At the time of trial,

by which time Lewis’s license had been reinstated, the city continued to

list a maintenance worker position as available, demonstrating that the

city had not found a suitable replacement for Lewis’s position.

      Lewis also argues the city could have continued to employ him

during his license suspension.    First, he introduced evidence that the

number of snow days was limited and that other work did not require a

driver’s license, such as equipment maintenance, cleaning storm drains,
                                      8

or coal-patching on the roads where employees traveled in groups of two.

Second, he introduced evidence that pickup trucks were used by

maintenance workers for various tasks, including snow removal, that an

ignition interlock device could have been installed on one of the pickup

trucks, and that Lewis could have obtained a temporary permit to drive

vehicles with an ignition interlock device. Third, Lewis testified that he

was a long-term employee, having worked for the public works
department for eighteen years and had a good work record.

      Based on our de novo review, we hold the city’s termination of

Lewis was warranted. In reaching this conclusion, we rely on the rule

that in determining whether dismissal is warranted, “we must remember

the primary objective of section 400.19 is to protect the public interest.”

Dolan, 634 N.W.2d at 664.        Lewis’s failure to maintain his driver’s

license, a credential necessary to his position, fell within “neglect of duty,

disobedience, misconduct, or failure to properly perform the person’s

duties” as required for termination under Iowa Code sections 400.18 and

400.19.   “Although the statute uses the language ‘failure to properly

perform the person’s duties,’ . . . a reasonable interpretation of that

language would authorize a discharge based on future inability to
adequately or safely perform one’s duties . . . .” Smith, 561 N.W.2d at 78

(quoting Iowa Code § 400.18).        The job description for maintenance

workers requires the employee to maintain a driver’s license, and the city

policy provides that termination may result where employees do not

maintain the necessary credentials.        Lewis’s failure to maintain his

driver’s license led to an inability to adequately perform those duties of

his maintenance-worker job that required driving. Given Lewis’s inability

to perform the job requirement of driving and his failure to maintain the
                                   9

necessary credentials required by city policy, even though only

temporarily, his termination was warranted.

     IV. Conclusion.

     The city’s decision to terminate Lewis for failure to maintain

required credentials was warranted under Iowa Code sections 400.18

and 400.19.

     COURT OF APPEALS JUDGMENT VACATED; DISTRICT COURT
JUDGMENT REVERSED.
