In the Matter of: Civil Service Hearing of John Arthur Decker.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-343

 

In the Matter of: Civil Service

Hearing of John Arthur Decker.

 

Filed December 7, 2004 Reversed in part and remanded Stoneburner, Judge

 

International Falls Police Civil Service Commission

 

Brian N. Toder, Chestnut & Cambronne, P.A., 3700 Campbell Mithun Tower, 222 South Ninth Street, Minneapolis, MN  55402 (for relator John Decker)

 

Patricia Y. Beety, League of Minnesota Cities, 145 University Avenue West, St. Paul, MN 55103-2044 (for respondents City of International Falls and International Falls Police Civil Service Commission)

 

            Considered and decided by Randall, Presiding Judge; Stoneburner, Judge; and Huspeni, Judge.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Relator John Arthur Decker challenges the International Falls Police Civil Service Commission's decision terminating his employment as unreasonable, unsupported by substantial evidence, and arbitrary and capricious.  We reverse in part and remand.

 

FACTS

 

            Relator John Arthur Decker was employed as a police officer with the International Falls Police Department (IFPD) beginning in 1999.  On January 12, 2004, IFPD Chief Chris Raboin filed four charges against Decker with the City of International Falls Police Civil Service Commission (commission) and recommended termination of Decker's employment for cause.  Decker was charged with: "knowingly" disobeying department rules of procedure with regard to preservation of evidence by removing a TV/DVD unit (Charge 1) and a scanner (Charge 2) from the evidence room at the law enforcement center on unknown dates in 2003.  Decker was also charged with violating a provision of the department policies that states: "Officers shall utilize department equipment only for its intended purpose in accordance with established departmental procedures. . ." in connection with his use of a department-owned preliminary-breath-testing device (PBT) to see if his wife was able to legally drive on or about April 26, 2003 (Charge 3).  And Decker was accused of making a false statement to the chief on November 27, 2003, when he allegedly denied that he was with the county attorney during a fire drill, in violation of a department policy that "a Police Officer will provide truthful responses or representations to the best of his/her ability, when called upon to do so" (Charge 4).

            After a two-day hearing before two members of the commission, the commission adopted verbatim the proposed findings and action drafted by counsel for the IFPD.  Except for the addition of dates for Charges 1 and 2 (May 2003 and August 2003 respectively) the first four "findings" are identical with the charges.  And "finding" five is a recitation of Rule 21 of the Rules and Regulations of the Police Civil Service Commission that also appears in the "recommendation" section of the charging document.  The commission terminated Decker's employment "as a result of said Findings . . . ."  Decker initiated this appeal by writ of certiorari.

D E C I S I O N

I.          Standard and scope of review

On appeal from a termination of employment by a civil service commission, the question to be determined by the reviewing court is: "Upon the evidence, was the order of the commission reasonable?"  Minn. Stat. § 419.12 (2002).  The scope of review of the commission's decision is governed by Minn. Stat § 14.69 (2002), which provides that:

. . . the court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative finding, inferences, conclusion or decisions are:

(a)               in violation of constitutional provisions; or

(b)              in excess of the statutory authority or jurisdiction of the agency; or

(c)              made upon unlawful procedure; or

(d)              affected by other error of law; or

(e)              unsupported by substantial evidence in view of the entire record as submitted; or

(f)               arbitrary or capricious.

 

            Decker argues that the commission's findings cannot be reviewed properly because they are conclusory, were adopted verbatim from IFPD's proposed findings, and merely repeat the charges set out in the charging document.  Although there is no hard and fast rule concerning how detailed and specific agency findings should be, "the general rule is that an administrative [agency] should state with clarity and completeness the facts and conclusions essential to its decision so that a reviewing court can determine from the record whether the facts furnish justifiable reason for its action."  Morey v. Sch. Bd. of Indep. Sch. Dist. No. 492, Austin Pub. Schs., 271 Minn. 445, 450, 136 N.W.2d. 105, 108 (1965).

            While the commission's findings in this case contain specific factual statements regarding Decker's conduct, the statements come directly from the charges and do not address any of the evidence presented at the hearing.

The substantial evidence test requires a reviewing court to evaluate the evidence relied upon by the agency in view of the entire record as submitted.  If an administrative agency engages in reasoned decision-making, the court will affirm, even though it may have reached a different conclusion had it been the fact-finder.  The court will intervene, however, where there is a "combination of danger signals which suggest the agency has not taken a ‘hard look' at the salient problems" and the decision lacks "articulated standards and reflective findings."

 

Cable Communications Bd. v. Nor-west Cable Communications P'ship, 356 N.W.2d 658, 668-69 (Minn. 1984) (citations omitted).  We have carefully reviewed the record and conclude that the commission's findings raise a question about whether it independently evaluated the testimony and evidence.  See Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992) (stating in context of district court decisions that verbatim adoption of one party's findings raises question of whether trial court independently evaluated each party's testimony and evidence), review denied (Minn. Feb 12, 1993).

II.        Findings

            a.         Charges 1 & 2: Removal of TV/DVD and scanner from evidence/property room

           

Decker argues that there is no evidence that he knowingly disobeyed any laws or rules of criminal procedure when he removed the TV/DVD from the evidence room and no evidence that he violated any law or rule of evidence when he removed the scanner.  Decker bases this argument on evidence that he was a well respected, commended officer, regarded by co-workers as knowledgeable regarding proper procedures for handling evidence.  Decker argues that it is "illogical" that he would knowingly violate a chain of custody and thereby jeopardize his career. 

            Although there is evidence that the unwritten policy of the IFPD is to not touch anyone's evidence in the evidence room without checking with the officer whose name or initials or call number is on the evidence, there is also evidence in the record that if the case involving the TV/DVD had not been pending at the time Decker removed the TV/DVD, he would not have been charged.  The record establishes that "evidence" and "property" were kept in the same room at the IFPD, and officers were allowed to take items of "property" in the room for department use.  The record indicates that, even though Decker violated an unwritten policy by not checking with the officer whose name was on the TV/DVD box, there would have been no consequences if his assumption that the case involving the TV/DVD was closed had been correct.  Nothing in the findings reflects how the commission arrived at the conclusion that Decker knowingly engaged in misconduct with regard to removal of the TV/DVD given all of the circumstances regarding its removal and use.

            The record clearly established that the case involving the scanner was closed and the scanner had no evidentiary value.  While the charge against Decker alleged a violation of the "rules of criminal procedure," the findings state that he violated a "rule of evidence."  Decker did not have notice that he was charged with violating a rule of evidence with regard to the scanner and the commission's findings do not address his procedural challenge to the change in this charge. 

            Prior to the hearing, it was discovered that there was an incomplete forfeiture action regarding the scanner.  But there is no evidence that anyone in the IFPD or sheriff's department was aware that the forfeiture action, which had been filed but apparently abandoned, was still pending at the time Decker removed the scanner.  There also was evidence that the inventory officer did not object to Decker removing the scanner for departmental use and that other scanners had been taken by officers for departmental use.  The commission's findings fail to address how the commission arrived at its conclusion that Decker knowingly violated the rule asserted in the charge regarding the scanner.  Because the findings regarding Charges 1 and 2 do not permit adequate review, we remand to the commission for additional findings reflective of the evidence in the record.

            b.         Charge 3: Use of PBT device

            Decker does not deny that he used an IFPD PBT device to test his then-wife's alcohol level at their home.  But Decker argues that this use did not violate the IFPD policy that "officers shall utilize department equipment only for its intended purpose in accordance with established departmental procedures and shall not abuse, damage, or lose department equipment," because a PBT is intended to measure alcohol levels, there are no departmental procedures regarding its use, and he did not abuse, damage, or lose the PBT.  We agree.  With regard to this charge, there is no evidence in the record of a policy against personal use of a PBT to measure alcohol levels.  In fact, the record establishes that PBTs were frequently used by officers to test their own alcohol levels for personal reasons.  Because there is no support in the record for the commission's finding that Decker violated "established departmental procedures" with regard to the PBT, and because it is undisputed that the PBT was not abused, damaged, or lost, we reverse the commission's finding on Charge 3.

            c.         Charge 4: False statement

            Here, the language of the findings closely restates the charge, but the evidence presented on this charge was conflicting.  "Conflicts in the testimony and the weight to be given facts and circumstances as well as the inferences reasonably to be drawn therefrom are matters to be resolved by the agency, not the courts."  City of Thief River Falls v. Melbye, 391 N.W.2d 911, 915 (Minn. App. 1986) (quoting State ex rel Jenson v. Civil Serv. Comm'n, 268 Minn. 536, 538, 130 N.W.2d 143, 146 (1964), cert. denied, 380 U.S. 943, 858 S. Ct. 1023 (1965)), review denied (Minn. Oct. 22, 1986).  Because the evidence presented on this charge was conflicting and because the findings do not reflect the commission's decision-making process, we remand for reflective findings that will permit adequate review. 

            Decker also argues that even if he did make a false statement to the chief it would not constitute a reasonable basis for his termination because there is no evidence that the statement was material.  Because the argument is not supported by legal analysis or citation, we decline to address it.  See Ganguli v. Univ. of Minnesota, 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (stating court declines to address allegations unsupported by legal analysis or citation).  We note, however, that there is no evidence in the record that Decker was directly asked whom he was with during the fire drill.  On remand, the commission should address whether the statement alleged was made in response to questioning or inquiry, and if not, whether it was made in a context that violated the charged policy violation, that an officer "will provide truthful responses or representations . . . when called upon to do so."

            d.         Finding 5

            Finding 5 states:

Officer Decker was wantonly careless and negligent in the performance of his duties, Civil Service Rule 21-1;. . . is incompetent and inefficient in the performance of his duties, Civil Service Rule 21-3, and; has violated lawful, official regulations; orders; and has failed to obey lawful and reasonable directions given him by his superior officer when such violation or failure to obey amounts to insubordination, and has committed serious breaches of discipline, which results in a low morale in the organization, and results in loss, inconvenience, or injury to the city or to the public, Civil Service Rule 21-6.

 

Decker correctly argues that Finding 5 is not a finding but is only a "cut and paste" of portions of Commission Rule 21.[1]  This "finding" is really a legal conclusion or decision and can only be affirmed if it is reasonable given the evidence.  Minn. Stat. § 419.12 (2002).  Because we have not been able to adequately review the commission's decision on Charges 1, 2, and 4, and have reversed Charge 3, we also remand Finding 5 for further reflective consideration by the commission in light of this opinion.

            Likewise, we remand the commission's decision that Decker is guilty of misconduct, which the commission based on its cumulative findings, and the decision that Decker should be terminated, for further reflective consideration and findings that demonstrate that the commission has taken a "hard look" at the salient problems presented by the record as a whole. 

            Reversed in part and remanded.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Decker asserts that this finding violates Commission Rule 22, which proscribes "vague and indefinite charges."  Because this argument is not supported by legal analysis or citation we decline to address it.  See Ganguli, 512 N.W.2d at 919 n.1.