from the Iowa District Court for Woodbury County, Jeffrey A.
service commission appeals a district court's
reinstatement of a civil service employee after he was
terminated pursuant to a last-chance agreement.
Vondrak, Assistant City Attorney, Sioux City, for appellant.
Denne of Munger, Reinschmidt & Denne, LLP, Sioux City,
case requires us to determine the enforceability of a
so-called "last-chance agreement" entered into by a
civil service employee. After a municipal firefighter pled
guilty to domestic abuse assault, the municipality offered to
discipline him with a short suspension instead of terminating
his employment. However, in exchange, the municipality
insisted that the firefighter agree to give the municipality
discretion to terminate him immediately and without appeal if
he violated the law again or violated the related no-contact
order. The firefighter accepted the municipality's
proposal and signed the written last-chance agreement.
over a year later, the firefighter violated the no-contact
order related to the domestic abuse assault. When the city
terminated his employment in reliance on the agreement, the
firefighter attempted to appeal his termination to the civil
service commission. The commission declined to hear his
appeal. On judicial review, however, the district court
reinstated the firefighter. The district court ruled that the
last-chance agreement was not valid because the commission
had not approved or reviewed it before the parties entered
appeal, we now reverse the district court. Consistent with
the authority in other jurisdictions, we conclude that a
civil service employee may enter into a valid last-chance
agreement. Such an agreement, however, remains subject to
principles of contract law, such as the duty of good faith
and fair dealing. Accordingly, we do not decide whether a
last-chance agreement can be used to terminate a civil
service employee when there has been a significant lapse of
time or the breach is de minimis or unrelated to the reason
for the agreement.
Background Facts and Proceedings.
over twenty years, Larry Whitwer served as a firefighter with
the Sioux City Fire Department. In July 2012, Whitwer was
arrested for an assault. He later pled guilty to domestic
abuse assault in violation of Iowa Code section
708.2A(2)(a) (2013). At sentencing, the court
granted Whitwer a deferred judgment. The court also extended
a previously entered no-contact order for five years. See
id. § 664A.5. On September 26, the day after
Whitwer pled guilty, he was placed on administrative leave
from the fire department, with pay, and a predisciplinary
hearing was scheduled for October 5.
that hearing, Fire Chief Tom Everett spoke with Dan Cougill,
a representative from the firefighters' union, about the
appropriate discipline for Whitwer's actions. Although
Whitwer could have been terminated, Everett and Cougill
discussed the possibility of Whitwer signing a last-chance
agreement. Under the agreement, Whitwer would not be
terminated because of the domestic abuse assault guilty plea
and he would instead serve a short suspension. Whitwer would
agree, among other things, to abide by the no-contact order
and consent to immediate termination if he violated that
order. Whitwer would also be required to waive the right to
appeal if he were later terminated under the last-chance
agreement. In an email sent September 27, Chief Everett noted
that he "spoke for some time [with Cougill] about . . .
what exactly the last chance means." Chief Everett and
Cougill then separately discussed the proposed discipline and
last-chance agreement with Whitwer's personal attorney.
Connie Anstey, an attorney for the City of Sioux City (City),
drafted the two-page document titled "Disciplinary
Agreement" in anticipation of the hearing. The agreement
provided that it would be a "complete resolution to the
disciplinary action relating to incidents which took place on
or about July 21, 2012." The agreement then included
several provisions that "Whitwer, the Sioux City
Professional Fire Fighter's Association, and the City of
Sioux City agree to . . . in lieu of Mr. Whitwer's
1. The City agrees that the only disciplinary action which
will be taken regarding the alleged misconduct . . . is
contained in this agreement unless this agreement is breached
by Mr. Whitwer. In the event of breach of this agreement by
Mr. Whitwer, the City reserves the right to impose further
disciplinary action up to and including immediate
2. That Mr. Whitwer shall be subject to transfer at the sole
discretion of the Fire Chief and shall receive a five (5)
shift suspension from work without pay for violation of Sioux
City Fire Rescue Rules and Regulations . . . .
. . . .
5. That Mr. Whitwer shall strictly abide by all court issued
no contact orders in Woodbury County Case No. . . ., and
shall not, either while on duty or off duty violate the court
imposed no contact order in person, by telephone or through
the use of third parties.
. . . .
7. That this agreement is a last chance agreement and as
such, it is agreed that Mr. Whitwer may be terminated from
his employment with the City without cause and without appeal
rights under the labor agreement between the City and Union
or under the provisions of the Iowa Civil Service laws at any
time following the execution of this agreement. It is
understood that Mr. Whitwer may be immediately terminated
under this provision for any violation of the law (excluding
simple misdemeanor traffic or parking tickets), violation of
the no contact order, violation of Fire Department Rules and
Regulations or the City Administrative Policies which may
occur during this agreement.
8. The Union and Mr. Whitwer specifically waive all claims,
disputes, appeals and grievances which have arisen or which
may arise from the discipline given Mr. Whitwer pursuant to
scheduling conflicts, the hearing was moved forward to
October 1. On that day, Chief Everett,
Anstey, and Bridey Hayes, director of human resources for the
City, were in attendance on behalf of the City. Cougill and a
second representative from the firefighters' union were
present, as was Whitwer. Whitwer's personal attorney was
not at the meeting, although neither Whitwer nor the union
asked that the meeting be continued for that reason.
parties understood that the purpose of the hearing was to
review the last-chance agreement. After that review, Whitwer
could either sign the agreement or be terminated for the
domestic abuse assault guilty plea. Chief Everett read aloud
the entire agreement and asked Whitwer if he had any
questions. Whitwer was given time to study the document. The
union representatives asked to discuss the agreement in
private with Whitwer. City officials honored the request and
left the room. When they returned, Whitwer and the union
representatives had several questions relating to the
proposed shift suspensions. Chief Everett asked Whitwer if he
had any other questions about the agreement, and Whitwer
replied that he did not. At that point, Whitwer, Chief
Everett, and Cougill each signed five copies of the
agreement. Whitwer then became emotional and apologized.
Chief Everett responded to Whitwer, "[W]e really want
you to be successful."
next thirteen months, Whitwer continued to work as a
firefighter without incident. However, in November 2013,
police were dispatched on reports that Whitwer was texting
and attempting to meet with and otherwise reach the victim in
violation of the no-contact order. Officers reviewed an
actual text message, confirmed the no-contact order was still
active, and arrested Whitwer. On November 18, Whitwer
appeared before the district court and admitted to violating
the no-contact order. The court found him in contempt and
sentenced him to two days in jail with credit for time
served. A separate job-related hearing was held on November
22 and Whitwer was terminated from the Sioux City Fire
Department for violating the last-chance agreement.
appealed his termination to the Sioux City Civil Service
Commission pursuant to chapter 400, which governs the rights
of civil service employees. See id. §
400.18(1). However, the Commission declined to determine
whether Whitwer was properly terminated because of the
waiver-of-appeal provision in the last-chance agreement.
Although Whitwer claimed that he was under duress and
suffering from depression when he signed the agreement, the
Commission determined it had no authority to hear the appeal.
appealed the Commission's decision to district court.
See id. § 400.27. At the district court
hearing, several City employees testified regarding the
City's use of last-chance agreements. Bridey Hayes
explained that the agreements are not prescribed in the City
code or administrative regulations. Instead, the decision of
whether to offer a last-chance agreement is at the discretion
of human resources, the City attorney's office, and the
relevant department head. Connie Anstey testified that when a
last-chance agreement is appropriate, the City uses a form
agreement which is then tailored to the circumstances
involved. For instance, Anstey elaborated that if the
last-chance agreement is based on criminal conduct, the
agreement will require no further violations of the law.
Anstey stated that the waiver-of-appeal provision is a
"standard provision" in the form agreement. Anstey
emphasized that the decision to offer a last-chance agreement
depends on the circumstances of the misconduct, the
disciplinary options available, and the employee's work
history. Finally, Anstey acknowledged that there was no
end-date for the last-chance agreement in this case.
Everett confirmed that if Whitwer had declined to sign the
last-chance agreement on October 1, 2012, he would have been
terminated at that meeting. Everett explained that public
trust was extremely important to the fire department, and a
violation of law "begins to chip away or erode that
public trust and certainly speaks to integrity and
decision-making." Chief Everett also observed that
last-chance agreements, when appropriate, are generally
beneficial to the fire department because the department
"put[s] a lot into these individuals, " and a
last-chance agreement allows the employee to "see what