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Milligan v. Ottumwa Civil Service Commission

Court of Appeals of Iowa

November 6, 2019

MARK LEONARD MILLIGAN, Petitioner-Appellee,
v.
OTTUMWA CIVIL SERVICE COMMISSION, Respondent, and CITY OF OTTUMWA and OTTUMWA POLICE DEPARTMENT, Intervenors-Appellants.

          Appeal from the Iowa District Court for Wapello County, Shawn R. Showers, Judge.

         The appellants appeal from the district court ruling that reversed the suspension and termination of Mark Milligan.

          Jason M. Craig and Emily A. Kolbe of Ahlers & Cooney, P.C., Des Moines, for appellants.

          Steven Gardner of Denefe, Gardner & Zingg, P.C., Ottumwa, for appellee.

          Heard by Bower, C.J., and May and Greer, JJ.

          GREER, Judge.

         Appellants Ottumwa Civil Service Commission (Commission), City of Ottumwa (City), and Ottumwa Police Department (Department) appeal from the district court ruling that reversed the suspension and termination of Sergeant Mark Milligan and awarded him back pay. The appellants argue Sergeant Milligan's suspension and termination were appropriate and the court erred by refusing to reduce his damages by income he received from other sources. We find Sergeant Milligan violated Department rules and uphold the suspension and termination. Given this determination, the damage question is moot. We thus reverse the ruling of the district court.

         I. Background Facts and Proceedings

         On January 5, 2017, multiple law enforcement officials, including Officer Eric Orr and Sergeant Milligan with the Department, responded to a call about a potentially stolen car. At this scene, Sergeant Milligan was the supervising field sergeant and the highest ranking Department official. After the officers detained two individuals suspected of stealing the car, B.H., a juvenile who was not suspected of wrongdoing, approached Officer Orr and said she needed to retrieve her belongings from the car. Surveillance video and audio from Officer Orr's patrol vehicle shows these exchanges:[1]

B.H.: May I please go get my shit [inaudible] ORR: Not yet. . . . .
B.H.: Well, if you're going to tow [the car, ] I need my shit.
MILLIGAN: You keep running your mouth, things only get worse, [B.H.].
[Cross-talk]
ORR: Keep your mouth shut.
[Cross-talk]
B.H.: Who are you to tell me?
[Cross-talk]
ORR: Why don't you go over to the van and keep your mouth shut before you get in trouble.
[Inaudible]
ORR: Then go somewhere. Go somewhere.
B.H.: In my opinion.
ORR: Go somewhere, because you are interfering right now and you're going to be arrested.
[Cross-talk]
B.H.: I need my shit. I'm not leaving until I get my shit.
ORR: Well, you're not going to get it until we tell you you can.
[Cross-talk]
ORR: We'll take as long as we want. It's going to take longer with your attitude. We'll take all night long.
[Cross-talk]
B.H.: I can have my attitude [inaudible]
ORR: I'll put the stuff in the car into evidence and you can go get it . . . tomorrow if you want to continue.
B.H.: Evidence?
ORR: Yeah. [Cross-talk] I'll impound everything in that car.
MILLIGAN: [B.H.].
[Cross-talk]
ORR: Just flip me off. I don't care. I may get you for harassing a public ...

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