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City of Des Moines v. Hurley

Court of Appeals of Iowa

April 19, 2017

CITY OF DES MOINES, IOWA, Plaintiff-Appellee,
v.
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.

          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. 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 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 ...

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