In Re the Grievance of O'Neill

347 N.W.2d 887, 1984 S.D. LEXIS 297
CourtSouth Dakota Supreme Court
DecidedMay 2, 1984
Docket14347
StatusPublished
Cited by12 cases

This text of 347 N.W.2d 887 (In Re the Grievance of O'Neill) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Grievance of O'Neill, 347 N.W.2d 887, 1984 S.D. LEXIS 297 (S.D. 1984).

Opinions

FOSHEIM, Chief Justice.

Charles O’Neill (Grievant) appeals the circuit court affirmance of a career service commission order denying his grievance against the South Dakota State Penitentiary (Penitentiary). We reverse and remand for a new hearing before the career service commission.

Grievant was employed by the Penitentiary from January 22, 1979, to May 19, 1982. He was a career service employee and his last position was a Correctional Officer II. His duties included maintaining order in the penitentiary and transporting prisoners.

Grievant’s employment was terminated on May 19, 1982, following a hearing before the Penitentiary disciplinary board. He appealed the termination in a grievance hearing before a hearing examiner and Warden Solem. The warden sustained the termination. Grievant then requested a hearing before the South Dakota Board of Charities and Corrections. The Board sustained Warden Solem. Grievant appealed this decision to the career service commission pursuant to SDCL 3-6A-38. After a de novo hearing the commission entered an order denying the grievance. The circuit court affirmed the commission.

[888]*888The incidents upon which the discharge rests are: (1) DWI and resisting arrest charges which occurred in June 1980 (pursuant to a plea bargain, Grievant pleaded guilty to resisting arrest and speeding); (2) a hit-and-run accident on July 3, 1980; (3) an assault against a local citizen; and (4) an arrest for disturbing the peace and resisting arrest on May 3, 1982. It is undisputed that Grievant's job performance was satisfactory.

Grievant claims the discharge proceedings were brought, conducted, and upheld under the wrong standard of conduct. The lower tribunals based their decision, in part, on SDCL 23-3-35(3), which permits the law enforcement standards commission to decertify law enforcement officers convicted of a misdemeanor involving moral turpitude.1 This statute reads, in part:

In addition to powers conferred upon the commission elsewhere in this chapter, the commission shall have power to:

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(3) Certify persons as being qualified under the provisions of §§ 23-3-26 to 23-3-47, inclusive, to be law enforcement officers, and by rule to establish criteria and procedure for the revocation or suspension of the certification of officers who are convicted of a felony or misdemeanor involving moral turpitude, have intentionally falsified any application or document to achieve certification, or have been discharged from employment for cause. [Emphasis added]

Grievant contends that SDCL 23-3-35(3) was erroneously invoked. We agree. That statute is applied by the law enforcement standards commission. The commission was not involved in these grievance hearings or appeals. SDCL 23-3-35(3) relates to certification and decertification of law enforcement officers. Grievant was not an officer certified by the law enforcement standards commission. In view of the inapplicability of this statute as grounds for Grievant’s discharge, we need not decide whether he is a law enforcement officer within the meaning of SDCL ch. 23-3, as that term is variously defined in different contexts.2

We find the applicable grounds for dismissal in SDCL ch. 3-6A and. its promulgated regulations. The Career Service Act, SDCL ch. 3-6A, establishes a system of career service personnel management for the executive branch of state government. SDCL 3-6A-1. Pursuant to constitutional authority, S.D. Const, art. XIV, § 2, the legislature has placed the area of personnel management of the board of charities and corrections under the bureau of personnel of the career service commission. SDCL 3-6A-12. SDCL 3-6A-37 and SDCL 3-6A-38 grant to the commission the power and duty to act as a grievance review board for career service employees if a grievance remains unresolved after exhaustion of a departmental grievance procedure and the career service employee demands a hearing before the career service commission. The commission shall uphold the appointing authority’s discharge decision upon finding that the discharge was “for good cause.” SDCL 3-6A-38.1.

Pursuant to the rule-making authority granted by SDCL 3-6A-36, the career service commission has defined just causes for disciplinary action in A.R.S.D. 55:01:12:05.3

[889]*889This regulation enumerates sixteen just causes for disciplinary action. It is preceded by a catch-all provision that disciplinary action may be taken “for other just causes as reported to the commissioner.”

Grievant contends that the alleged grounds for his dismissal are all off-duty related and are not among the litany of causes found in A.R.S.D. 55:01:12:05. He claims that the enumerated causes are all directly associated with work and that the canon of statutory construction known as ejusdem generis therefore prohibits the “other just causes” provision of A.R.S.D. 55:01:12:05 from encompassing his off-duty conduct. The ejusdem generis principle holds that where general words follow (or, as here, precede) the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general kind as those enumerated. Kelley v. Duling Enterprises, Inc., 84 S.D. 427, 172 N.W.2d 727 (1969); State v. Fairbanks, 65 S.D. 272, 273 N.W. 188 (1937), 111 A.L.R. 759; See also Aberdeen Ed. Ass’n v. Aberdeen Bd. of Ed., 88 S.D. 127, 215 N.W.2d 837 (1974) (Wollman, J., concurring specially).

We do not read the listed causes as all being related only to work conduct. The third enumerated cause concerns violá-tion of any of the provisions of the Career Service Act or the accompanying administrative regulations. Such provisions theoretically can prohibit activities which may have no direct nexus with work. The fifth enumerated cause likewise permits disciplinary action for violation of any department, division, bureau or institution regulation or order or for failure to obey any proper direction made and given by a supervisor. Such regulations or directives might be broad enough to address off-duty conduct. We therefore conclude as a matter of law that the “other just causes” provision of A.R.S.D. 55:01:12:05 can potentially involve off-duty conduct.

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In Re the Grievance of O'Neill
347 N.W.2d 887 (South Dakota Supreme Court, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
347 N.W.2d 887, 1984 S.D. LEXIS 297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-grievance-of-oneill-sd-1984.