Matter of Ackerson, Karlen & Schmitt

335 N.W.2d 342
CourtSouth Dakota Supreme Court
DecidedJune 22, 1983
Docket13832, 13833, 13834
StatusPublished
Cited by26 cases

This text of 335 N.W.2d 342 (Matter of Ackerson, Karlen & Schmitt) 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
Matter of Ackerson, Karlen & Schmitt, 335 N.W.2d 342 (S.D. 1983).

Opinions

HENDERSON, Justice.

PROCEDURAL HISTORY/CHRONOLOGY

September 15, 1981, the Aberdeen, South Dakota Police Chief and the Commissioner of Public Safety jointly notify appellees Ackerson, Schmitt, and Kar-len that appellees were terminated as Aberdeen police officers due to appel-lees’ involvement with marijuana. Within three days, appellees filed a notice of appeal with the Civil Service ' Board for the City of Aberdeen (Aberdeen Board).

September 18, 1981, appellees are notified that the South Dakota Law Enforcement Standards and Training Commission (State Commission) has revoked appellees’ certifications as law enforcement officers pursuant to ARSD 2:01:02:07.

October 26, 1981, appellees petition the State Commission for a hearing on their decertifications.

October 27, 1981, the Aberdeen Board determines that appellees’ removal was made “in good faith for cause”; however, the Aberdeen Board modifies ap-pellees’ terminations and reinstates ap-pellees as police officers subject to seven-week suspensions without pay.

December 9, 1981, the State Commission determines that since the Aberdeen [344]*344Board did find that appellees’ removal was for cause, appellees are no longer able to remain certified and, moreover, appellees no longer possess the minimum standards necessary for employment as law enforcement officers.

December 28, 1981, a due process hearing is held by the State Commission resulting in revocation of appellees’ certifications pursuant to ARSD 2:01:02:07 and ARSD 2:01:02:01(4).

February 16, 1982, appellees appeal the State Commission’s decision to the circuit court.

June 3, 1982, the circuit court orders reinstatement of appellees’ certifications by ruling:

Clearly, the Commission’s findings that [appellees’] actions have discredited the Aberdeen police department and caused them to lose credibility and effectiveness as law officers is not one of the criteria that can be invoked for revoking certification....
The only grounds for the Commission’s action in revoking certification that will be considered in this appeal are that the officers have been discharged from their present employment for cause.
... At their hearing before the Board the decision was to modify the termination to a suspension for seven weeks without pay and reinstatement at the end of that time. This was not a termination of employment — the Law Enforcement Standards and Training Commission therefore had no grounds for revoking the certifications.

June 8, 1982, the State Commission appeals from the circuit court’s order.

We affirm the circuit court.

FACTS

In November of 1980, appellee Karlen, while off duty, used marijuana on at least two occasions. During the same time period, appellee Ackerson discovered marijuana on the police station restroom floor. Subsequently, appellee Ackerson removed the marijuana and placed it in the glove compartment of his personal automobile. According to appellee Ackerson, five months later he removed the marijuana from his automobile and stored it on the front porch of his home. Appellee Ackerson purportedly destroyed the marijuana in May of 1981. In December of 1980, appellee Ackerson witnessed Susan Sobesky, an off-duty police dispatcher, using marijuana. Appellee Ack-erson failed to take action or report what he witnessed.

During September of 1980, appellee Schmitt removed marijuana from an abandoned vehicle in Aberdeen, South Dakota. Appellee Schmitt gave the marijuana to a police dispatcher who was accompanying him on patrol. Appellee Schmitt’s inventory report failed to disclose his discovery of marijuana. Appellee Schmitt initially denied this incident, but later admitted what had transpired.

ISSUES

I.

DOES THE SOUTH DAKOTA LAW ENFORCEMENT STANDARDS AND TRAINING COMMISSION HAVE THE AUTHORITY TO REVOKE LAW ENFORCEMENT OFFICERS’ CERTIFICATIONS, PURSUANT TO THE STANDARDS SET FORTH IN SDCL 23-3-42 AND ARSD 2:01:02:01? WE HOLD THAT IT DOES NOT.

II.

WERE APPELLEES DISCHARGED FOR CAUSE PURSUANT TO ARSD 2:01:02:07? WE HOLD THAT THEY WERE NOT.

DECISION

A ruling or decision of an administrative agency is upheld unless we find that in light of the entire record, the decision is clearly erroneous or we are left with a firm [345]*345and definite conviction that a mistake has been made. Dakota Harvestore Sys., Inc. v. Dep’t of Revenue, 331 N.W.2d 828 (S.D. 1983); Deuter v. South Dakota Highway Patrol, 330 N.W.2d 533 (S.D.1983); Fraser v. Water Rights Comm’n, Etc., 294 N.W.2d 784 (S.D.1980). Additionally, as we review the administrative record we are not bound by a presumption that the circuit court was correct. Matter of Clay-Union Elec. Corp., 300 N.W.2d 58 (S.D.1980); Matter of S. Lincoln Rural Water Sys., 295 N.W.2d 743 (S.D.1980).

Quasi-legislative powers may be delegated by the legislature to state agencies. Oahe Conservancy Subdistrict v. Janklow, 308 N.W.2d 559 (S.D.1981). A legislative delegation of power to an agency must provide a clearly expressed legislative will and sufficient standards for guiding the agency. S.D. Migratory Bird Ass’n v. S.D. Game, Fish & Parks Comm’n, 312 N.W.2d 374 (S.D.1981). An agency or commission may not enlarge upon its statutory authority to provide additional regulations even if such additions are advisable. Livestock State Bank v. State Banking Comm’n, 80 S.D. 491, 127 N.W.2d 139 (1964).

Standards for certifying law enforcement officers are found in SDCL 23-3-42:

Qualifications prescribed for law enforcement officers. In addition to the requirements of § 23-3-41, the commission, by rules and regulations, shall fix other qualifications for the employment and training of appointed law enforcement officers, including minimum age, education, physical and mental standards, citizenship, good moral character, experience, and such other matters as relate to the competence and reliability of persons to assume and discharge the various responsibilities of law enforcement officers, and the commission shall prescribe the means for presenting evidence of fulfillment of these requirements.

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Matter of Ackerson, Karlen & Schmitt
335 N.W.2d 342 (South Dakota Supreme Court, 1983)

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Bluebook (online)
335 N.W.2d 342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-ackerson-karlen-schmitt-sd-1983.