SF 457 (LSB 1984SV (2) 90)

SENATE FILE 457

BY  COMMITTEE ON LOCAL GOVERNMENT

(SUCCESSOR TO SF 231)

A BILL FOR

An Act relating to city civil service and including effective date provisions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 400.1, subsection 1, Code 2023, is amended to read as follows:
   1.  In cities having a population of eight thousand or over and having a paid fire department or a paid police department, the mayor, one year after a regular city election, with the approval of the council, shall appoint three civil service commissioners. The mayor shall publish notice of the names of persons selected for appointment no less than thirty days prior to a vote by the city council. Commissioners shall hold office, one until the first Monday in April of the second year, one until the first Monday in April of the third year, and one until the first Monday in April of the fourth year after such appointment, whose successors shall be appointed for a term of four years. In cities having a population of more than seventy fifty thousand, the city council may shall establish, by ordinance, the number of civil service commissioners at not less than three five but not more than seven. However, in cities having a population of more than fifty thousand and having a paid fire department or a paid police department, the mayor, with the approval of the council, shall appoint five civil service commissioners.
    Sec. 2.  Section 400.18, subsections 1 and 3, Code 2023, are amended to read as follows:
   1.  A person holding civil service rights as provided in this chapter shall not be unreasonably or unjustly removed, discharged, demoted, or suspended arbitrarily, but may be removed, discharged, demoted, or suspended due to any act or failure to act by upon a finding by a preponderance of the evidence that the employee committed an act or failure to act that is in contravention violation of clearly established law, city or reasonable city policies, or standard operating procedures, or that in the judgment of the person having the appointing power as provided in this chapter, or the chief of police or chief of the fire department, is sufficient to show that the employee is unsuitable or unfit for employment rules.
   3.  The city shall have the burden to prove that the act or failure to act by the employee was in contravention violation of clearly established law, or reasonable city policies, or standard operating procedures, or is sufficient to show that the employee is unsuitable or unfit for employment department rules.  For purposes of this chapter, the city shall establish each element of the charges specified under section 400.22 by a preponderance of the evidence. The city shall have the burden to prove that the punishment imposed upon the employee is proportionate, reasonable, and just in the totality of the circumstances.
    Sec. 3.  Section 400.19, Code 2023, is amended to read as follows:
   400.19  Removal, discharge, demotion, or suspension of subordinates.
   The person having the appointing power as provided in this chapter, or the chief of police or chief of the fire department, may, upon presentation of reasonable and just grounds for such action to the subordinate in writing, peremptorily remove, discharge, demote, or suspend a subordinate then under the person’s or chief’s direction due to any proven act or failure to act by the employee that is in contravention violation of clearly established law, or city policies, or standard operating procedures, or that in the judgment of the person or chief is sufficient immediately detrimental to show that the employee is unsuitable or unfit for employment public.
    Sec. 4.  NEW SECTION.  400.22A  Exculpatory evidence.
   A person shall not knowingly withhold exculpatory evidence from an employee subject to a written specification of charges filed under section 400.22.
    Sec. 5.  Section 400.24, Code 2023, is amended to read as follows:
   400.24  Oaths —— books and papers.
   The presiding officer of the commission or the council, as the case may be, shall have power to administer oaths in the same manner and with like effect and under the same penalties as in the case of magistrates exercising criminal or civil jurisdiction. The council or commission shall cause subpoenas to be issued for such witnesses and the production of such books and papers as either party may designate. The subpoenas shall be signed by the chairperson of the commission or mayor, as the case may be, or by an attorney representing a party before the commission.
    Sec. 6.  Section 400.26, Code 2023, is amended to read as follows:
   400.26  Public trial.
   The trial of all appeals shall be public, and the parties may be represented by counsel or by the parties’ authorized collective bargaining representative.  However, upon the request of the employee, the deliberations of the commission shall be held in closed session.
    Sec. 7.  Section 400.27, subsections 1, 2, and 3, Code 2023, are amended to read as follows:
   1.  a.  The civil service commission has jurisdiction to hear and determine matters involving the rights of civil service employees under this chapter, and may affirm, modify, or reverse any case on its merits.
   b.  If the commission determines that the city proved the employee committed the charge as specified, the commission shall determine whether the removal, discharge, demotion, or suspension of the employee was unreasonable or unjust based upon the totality of the circumstances. For the purposes of this subsection, the commission shall consider factors including the nature of the conduct at issue in the circumstances, the proportionality of the punishment to the conduct at issue, the employee’s work history, whether the employee reasonably could comply with the policy or rule in the circumstances and whether the employee’s conduct was objectively reasonable in the circumstances, the employee’s defenses or justifications, any mitigating or aggravating factors, whether the punishment is reasonably calculated to correct the employee’s behavior or conduct or if the punishment is necessary to protect the public interest, and whether the city, its employees, or the appointing authority acted in accordance with the law, city policies, department rules, or standard operating procedures. The commission shall only consider, order, or impose discipline upon the employee for charges proven by the city.
   c.  The commission shall reverse the city’s decision and dismiss a charge with prejudice if the city fails to meet its burden of proof as to any element of the charge.
   d.  The final decision of the commission shall be based upon a majority vote of the commission, shall be made in writing, and shall include findings of fact and conclusions relied upon, and reasoning or rationale for the decision, separately stated. The commission shall render and serve its final decision upon the parties within thirty days of the close of the record or trial unless the parties consent to a later date in writing or on the record.
   2.  a.  The Except as otherwise provided in this section, the city attorney or solicitor shall be the attorney for the commission or when requested by the commission shall present matters concerning civil service employees to the commission, except the commission may hire a counselor or an attorney on a per diem basis to represent it when in the opinion of the commission there is a conflict of interest between the commission and the city council. The counselor or attorney hired by the commission shall not be the city attorney or solicitor. The city shall pay the costs incurred by the commission in employing an attorney under this section.
   b.  Upon the filing of a notice of appeal pursuant to section 400.21, a city attorney, assistant city attorney, or solicitor who represents or has represented the commission shall not represent the city or its officers or employees in an appeal pending before the commission unless the employee waives the conflict of interest in writing or on the record. If the commission is required to hire a counselor or attorney that is not a city attorney, assistant city attorney, or solicitor as provided in this subsection, the city shall pay the costs incurred by the commission in employing a counselor or attorney under this section, and the commission shall independently seek and retain such an attorney.
   c.  A counselor or attorney who represents the commission in an appeal before the commission shall be fair and impartial toward the parties. The counselor or attorney representing the commission may provide advice and counsel to the commission on matters before it and assist the commission with its proceedings and trial as may be necessary or requested.
   3.  The city or any civil service employee shall have a right to appeal to the district court from the final ruling or decision of the civil service commission. The appeal shall be taken within thirty days from the filing service of the formal decision of the commission. The district court of the county in which the city is located shall have full jurisdiction of the appeal. The scope of review for the appeal shall be limited to a trial de novo appellate review without a trial or additional evidence.
    Sec. 8.  Section 400.27, Code 2023, is amended by adding the following new subsections:
   NEW SUBSECTION.  2A.  The commission shall provide for the production of evidence and exchange of exhibits in advance of trial. The city shall mark its exhibits with numbers. The employee shall mark its exhibits with letters.
   NEW SUBSECTION.  6.  In addition to any other remedies and relief, upon application, the district court may award a prevailing employee reasonable attorney fees, expert fees, and costs and expenses.
    Sec. 9.  EFFECTIVE DATE.  This Act, being deemed of immediate importance, takes effect upon enactment.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to procedures governing city civil service under Code chapter 400.
   The bill strikes language authorizing the city council to establish, by ordinance, the number of civil service commissioners at not less than three in a city having a population of more than 70,000. The bill requires the city council to establish, by ordinance, the number of civil service commissioners at not less than five and not more than seven in a city having a population of more than 50,000. The bill requires the mayor, with the approval of city council, to appoint five civil service commissioners in a city having a population of more than 50,000 and having a paid fire department or a paid police department.
   The bill strikes language providing that an employee holding civil service rights shall not be subject to disciplinary action arbitrarily, but may be subject to disciplinary action due to any act or failure to act by the employee that is in contravention of law, city policies, or standard operating procedures, or that in the judgment of the person imposing disciplinary action, is sufficient to show that the employee is unsuitable or unfit for employment. The bill instead provides that an employee holding civil service rights shall not be unreasonably or unjustly subject to disciplinary action, but may be subject to disciplinary action upon a finding by a preponderance of the evidence that the employee committed an act or failure to act that is in violation of clearly established law or reasonable city policies or department rules.
   The bill strikes language allowing an appointing authority to peremptorily impose disciplinary action on a subordinate, upon presentation of grounds for such action to the subordinate, due to any act or failure to act by the employee that is in contravention of law, city policies, or standard operating procedures, or that in the judgment of the authority is sufficient to show that the employee is unsuitable or unfit for employment. The bill instead allows an appointing authority to peremptorily impose disciplinary action on a subordinate, upon presentation of reasonable and just grounds for such action to the subordinate, due to any proven act or failure to act by the employee that is in violation of clearly established law or city policies or is immediately detrimental to the public.
   The bill includes various changes relating to appeals of decisions regarding disciplinary action to city civil service commissions. When an employee is charged with a violation, the bill provides that the city shall establish each element of the charges by a preponderance of the evidence and shall have the burden to prove that the punishment imposed upon the employee is proportionate, reasonable, and just in the totality of the circumstances. The bill prohibits a person from knowingly withholding exculpatory evidence from an employee so charged. The bill permits an attorney representing a party in such an appeal to sign a subpoena. The bill authorizes the commission to deliberate in closed session upon request of the employee. The bill requires the commission to provide for the production of evidence and exchange of exhibits in advance of trial.
   If the city civil commission determines that the city proved the employee committed the charge as specified, the bill requires the commission to determine whether the disciplinary action was unreasonable or unjust based upon the totality of the circumstances based on factors including those specified in the bill. The bill provides that the commission shall only consider, order, or impose discipline upon the employee for charges proven by the city. The bill provides that the commission shall reverse the city’s decision and dismiss a charge with prejudice if the city fails to meet its burden of proof as to any element of the charge. The bill provides that the final decision of the commission shall be based upon a majority vote of the commission, shall be made in writing, and shall include findings of fact and conclusions relied upon, and reasoning or rationale for the decision, separately stated. The bill requires the commission to render and serve its final decision upon the parties within 30 days of the close of the record or trial unless the parties consent to a later date in writing or on the record.
   The bill provides procedures for counsel representing the city in an appeal to a city civil services commission.
   The bill strikes language providing that the scope of review for an appeal of the decision of the city civil service to district court shall be limited to de novo appellate review without a trial or additional evidence. The bill instead provides that the scope of review shall be a trial de novo. The bill provides that in addition to any other remedies and relief, upon application, the district court may award a prevailing employee reasonable attorney fees, expert fees, and costs and expenses.
   The bill takes effect upon enactment.