Fatino v. City of Des Moines

137 N.W.2d 638, 258 Iowa 37, 1965 Iowa Sup. LEXIS 701

• Court: Supreme Court of Iowa
• Decided: October 19, 1965
• Docket: No. 51725
• Status: Published

Opinions

Larson, J.

The sole.issue in this appeal is whether the City of Des Moines, Iowa, through its administrative officials, wrongfully refused to promote one of two eligible, persons to- the Class III clerk status when a person holding that classification employed in the purchasing department died.

In denying mandamus the -trial court held the plaintiffs could not compel the replacement of a Clerk III in the purchasing department, and by refusing to replace a Clerk III in that department the administrative officers could reduce the number of persons employed by the city in that classification. We cannot agree.

From the facts', largely undisputed, we learn that' a person with'a Clerk III classification employed in the purchasing department died -in September-1963; that a Clerk III position involves and contemplates a person in direct supervision- of' a moderately sized office unit or nonsupervisory- clerical position of an advanced and- highly responsible nature; that one- of that classification can be transferred from one department to another as the personnel office deems necessary; that-both appellants had been duly certified as eligible for appointment to a Clerk III classification on October .22, 1962, and at the time of this petition were the only, persons eligible for promotion to that classification.

Although .the city manager had indicated an intention to fill the position in the purchasing department, “after, the first of the year”, the city personnel officer and the purchasing agent for the city testified that department no longer had need for a Clerk, III employee, that although the. budget contained funds for a. Clerk III, studies showed- this small department was adequately supplied with responsible and supervisory personnel.

It is argued this reorganization was made to save the unneeded expense of hiring another person at that salary unless and until the need arose, even if the budget did so provide.

It was admitted there had been no council action to, terminate that office of to diminish the number of Clerk III personnel employed by tfie city in September 1963.

I. The trial court’s determination that there was discretion in the city administrative officer to provide or not provide a Clerk III in the purchasing department based upon the needs of, that, department appears correct. We are cited no authority, to the contrary and we have found none. Thus, appellees were not subject to coercion by a writ of mandamus to provide a Clerk III for the purchasing department. Wood v. Loveless, 244 Iowa 919; 928, 58 N.W.2d 368.

II. Once legally established, the position of Clerk. Ill cannot be terminated .without action by the city council. Wood v. Loveless, supra; Des Moines v. Board of Civil Service Commrs. etc., 227 Iowa 66, 287 N.W. 288. While it does not appear how many persons were employed by the city in the classification of Clerk III, it clearly appears that number was reduced by one at the death of the purchasing department employee in September 1963, and a vacancy existed in that classification thereafter. One of the appellants was’ entitled to be promoted to- that classi-j fication unless there was proper action by the council to reducé the number of employees authorized in that classification.

Section 365.28 of the 1962 Code provides: “Whenever the public interests may require a diminution of employees in any classification or grade under civil service, the city council, by resolution and acting in good faith, and after notifying the [civil service] commission of such action, may either: 1. [not applicable here] or 2. Reduce the number of employees in any classification or grade by suspending the necessary number.”

This has' not been done and the vacancy still exists.

III. Among other things plaintiffs prayed “for an order of mandamus * * '* requiring the defendants * * * to perform the duty enjoined upon them as required by law, * * Clearly, this duty was to fill the vacancy within thirty days or to take appropriate action to reduce the number of employees in classification Clerk III. Having done neither, it seems that part of plaintiffs’ prayer must be granted.

All the relief asked by appellants cannot be granted. Where a Clerk III- works or what duties he performs must be left to the sound discretion of the administrative officers as the needs of the various departments appear. However, under this record the appellants are entitled to an order requiring the city to promote one of them to the position of Clerk III in the City of Des Moines. The judgment denying appellants’ petition in these regards must be reversed. It is, therefore, directed that a writ of mandamus issue commanding the defendants to promote one of the appellants to the status of Clerk III as prayed.

IV. There was no attempt by appellants’ counsel to comply with our rules in preparing the record in this matter. The testimony Avas not abstracted as required by rule 340, Rules of Civil Procedure, but the entire testimony is set forth by questions and answei*s. Fairness in the matter of costs to be taxed herein seems to require that one half the costs of printing the record shall be assessed to appellants, — Reversed.

All Justices concur except Justice Snell and Chief Justice Garfield, who dissent.