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Welsh v. City of Dubuque

Court of Appeal of Iowa

October 2, 2013

JEROME WELSH, Plaintiff-Appellee,
v.
CITY OF DUBUQUE, IOWA and CIVIL SERVICE COMMISSION FOR THE CITY OF DUBUQUE, IOWA, Defendants-Appellants.

Appeal from the Iowa District Court for Dubuque County, Lawrence H. Fautsch, Judge.

The City of Dubuque and the Civil Service Commission for the City of Dubuque appeal a district court order reversing a decision to demote an employee.

Barry A. Lindahl, City Attorney, and Maureen A. Quann, Assistant City Attorney, Dubuque, for appellants.

Kyle A. McCoy of Soldon Law Firm, L.L.C., Rochester, Minnesota, for appellee.

Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ

VAITHESWARAN, P.J.

The City of Dubuque and the Civil Service Commission for the City of Dubuque appeal a district court order reversing a decision to demote an employee.

I. Background Facts and Proceedings

Jerome Welsh worked for the City of Dubuque for thirty years, most recently as its landfill foreman. One day, nineteen-and-a-half years into his employment at the landfill, Welsh had an altercation with employee John Gillen. He attempted to contact Gillen to be relieved for his lunch break. When he was unable to reach Gillen, he called his supervisor and told him they needed Gillen at the landfill. His supervisor said he would take care of it.

Welsh got into his vehicle and left. As he approached the main road, he noticed Gillen driving an end loader. According to Welsh, he saw "Gillen come up in the end loader and proceed to turn right into [his] lane of travel and come directly at [him] with the end loader." In the last seconds, Gillen swerved away and gave Welsh the finger. Welsh pulled over his vehicle. He testified, "I figured as a foreman, which is my right, I should go out there and ask him why he has a problem with going down to the bottom and relieving us." Welsh got out of his vehicle and approached Gillen. Gillen likewise exited the end loader and rapidly moved towards Welsh. As Welsh started to ask Gillen what his problem was, Gillen pushed him to the ground, causing him to fly back several feet and land on the gravel to the side of the road. Welsh got up. Gillen approached Welsh again and pushed him against his truck. At that point, Welsh decided to defend himself, and a fistfight ensued. Welsh's supervisor broke up the fight.

The city manager subsequently demoted Welsh to an entry-level position paying $2.63 less per hour. The Dubuque civil service commission affirmed the decision.

On appeal to the district court following a statutorily-prescribed de novo trial, the court reversed, concluding the city failed to prove that Welsh committed misconduct. This appeal followed.

II. Analysis

Iowa Code section 400.18 (2009), governing civil service, states that "[a] person holding civil service rights . . . may be removed, demoted, or suspended after a hearing by a majority vote of the civil service commission, for . . . misconduct." The statute does not define "misconduct." The burden of proving misconduct rests with the city. Smith v. Des Moines Civil ...


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