Claim Response Wm. Kelly
Barry A. Lindahl, Esq.
Corporation Counsel
Suite 330. Harbor View Place
300 Main Street
Dubuque. Iowa 52001-6944
(563) 583-4113 office
(563) 583-1040 lax
balesq@cityoldubuque.org
D{;B~E
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June 9, 2004
Mayor Terrance Duggan and
Members of the City Council
City Hall - City Clerk's Office
50 West 13th Street
Dubuque, IA 52001
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William Kelly
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Dear Mayor and Council Members:
The purpose of this letter is to recommend a settlement of the backpay claim of William
Kelly, a City employee in the Operations & Maintenance Department, who was
terminated in 2001 but reinstated by the Iowa District Court in 2002. The Civil Service
Commission was scheduled to meet June 10th to determine the amount of backpay, if
any, to which Kelly is entitled. However, the parties have reached a tentative
agreement on the backpay issue, subject to your approval.
A copy of the District Court Order reinstating Kelly is enclosed. Briefly, Kelly, a truck
driver, was terminated when he tested positive on a random alcohol test in 2001. Kelly
appealed the termination to the Civil Service Commission which upheld the termination.
Kelly then appealed to the District Court which reversed the termination and ordered
Kelly reinstated. The District Court found that the random alcohol test conducted by Tri-
State Occupational Health for the City was not properly performed and did not result in
a valid positive test result. Kelly was ordered reinstated as of October 10, 2001 as a
Laborer ot Truck Driver. The Court also found that Kelly was entitled to compensation
from October 10, 2001 to the date of the Court's Order, November 12, 2002.
The parties have agreed that the total amount of net backpay to which Kelly would be
entitled, since he was employed elsewhere during the period of his termination, is
$14,694.80. The City's position has been that Kelly is not entitled to any backpay for
the period of time he was terminated because his position was filled by another
employee in good faith by the City and the City should not be required to pay twice for
the same services. .
SeMoo
People
Integrily
Responsibilily
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We have advised Tri-State Occupational Health that in the event of any recovery of
backpay by Mr. Kelly, the City would pursue a claim for indemnity for all such damages
from Tri-State.
I recently received an offer from Kelly's attorney to resolve the backpay claim for
$8,000. Tri-State has agreed to pay half of the proposed settlement, or $4,000. The
City's share of the settlement would therefore be $4,000.
It is my recommendation that we accept the Plaintiff's proposal to settle the backpay
claim for $8,000, subject to being reimbursed by Tri-State for $4,000 of the settlement.
Unless I hear otherwise from you, I will be placing this letter on the City Council agenda
for the meeting of June 21, 2004 for your approval.
If you have any questions about this matter, please call me at your convenience.
"
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Enclosure
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Michael C. Van Milligen, City Manager
Cindy Steinhauser, Assistant City Manager
Randy Peck, Personnel Manager
Don Vogt, Operations & Maintenance Department Manager
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IN THE lOW A DISTRICT COURT FOR DUBUQUE COUNTY
IN THE MATTER OF THE APPEAL OF
WILLIAM KELLY,
Case No. CVCV052802
Plaintiff-Appellant,
VS.
FINDINGS OF FACT
CONCLUSIONS OF LAW
RULING AND ORDER
CITY OF DUBUQUE, IOWA and
CIVIL SERVICE COMMISSION of
THE CITY OF DUBUQUE, IOWA,
Defendants-Appellees.
This case was tried to the court on November 4, 2002. All parties appeared for
trial and were represented by counsel of record. Evidence was presented. The court took
the case under advisement and now makes the following:
FINDINGS OF FACT
I. Plaintiff-appellant William Kelly is a resident of Dubuque, Iowa. He beg(U1
employment with the defendant-appellant City of Dubuque, Iowa in 1973 asa laborer in
the Sanitation Department. He later became an equipment operator and last worked as a
foreman in the Operations and Maintenance Department. As Ii foreman, Kelly
supervised a small crew of four to six workers, operated some of the heavier equipment,
and also operated snow removal equipment in winter. In these positions, Kelly was
required to have a comm~cial drivers license, commonly called a CDL. Kelly had
possessed an Iowa CDL ever since the time Iowa law required city workers to have this
license to operate commercial vehicles, including trucks and heavy equipment.
2. Kelly's job with the City of Dubuque was subject to civil service regulation
under Chapter 400, Code of Iowa. Defendant-appellee Civil Service Commission of the
City of Dubuque, Iowa is charged by Iowa law with the duty of administering civil
service regulations in the city,
3. In the fall of2000, the City of Dubuque received a notice ÍÌ'om the Iowa
Department of Transportation informing it that the IDOT had revoked Kelly's CDL for a
period of one year, effective October 10, 2000, as a result of Kelly's conviction for the
offense of Operating a Motor Vehicle While Intoxicated-2nd Offense. The OWl arrest
stemmed ÍÌ'om Kelly's operation of his personal vehicle on his own time, and was not
work related in any way.
4. Kelly is a member of the Teamsters Union, Local #421, Dubuque, Iowa,
Local #421 represents workers in the Operations and Maintenance Department and has a
collective bargaining agreement with the City of Dubuque. Dave Baker is the union
president and business agent.
5. Randy Peck is the Personnel Manager for the City of Dubuque. It was
Peck's duty, in consultation with the City Manager and the Operations and Maintenance
Department Manager, to determine what action the City of Dubuque should take after
receiving notice ÍÌ'om the IDOT about the revocation of Kelly's CDL.
6. Peck first met with Kelly and discnssed the CDL revocation. Kelly was
informed that the city was considering terminating his employment. Subsequent meetings
were held between the city representatives, Kelly and Baker, to discuss the matter.
7. As a result of these meetings and negotiations, the City of Dubuque decided
against terminating Kelly's employment at that time, and instead entered into a written
agreement with Kelly, which some parties referred to informally as a "second chance
agreement." The agreement consisted of a letter dated November 20, 2000, typed on the
City Manager's letterhead, addressed to Kelly, and signed by Peck as personnel manager.
The portions of the agreement pertinent to this suit are the following:
". . . you will be placed on a leave of absence without pay or benefits e./ftctive
November 6,2000 until October IO, 2001, under the following terms and conditions:
*
If you do not obtain your commercial driver's license after the period of
revocation (October 10, 2001), your employment will be terminated.
*
During the leave of absence without pay, you will be subject to random alcohol
and drug testing. If a test is positive, your employment will be terminated.
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*
You will be ojJèred the first available opening after October lO, 2001, or when you
receive your commercial driver's license ifit is before October /0, 2001, in the
positions of Laborer or Truck Driver in the Operations and Maintenance
Department. If you choose not to accept appointment to a Laborer or Truck
Driver position, we will consider that you have resigned your employment with the
City of Dubuque. "
8.
A typed clause at the bottom of the letter described in paragraph 7 reads:
"[ have read the foregoing letter, [understand the terms and conditions set out
and [voluntarily and freely consent and agree with the terms and conditions, "
After that clause, the letter is signed by Kelly and dated December 4, 2000.
9. The letter described in paragraph 7 and the acknowledgment clause
described in paragraph 8, were all written by representatives of the City of Dubuque.
10: After receiving the letter from the city, Kelly discussed it with Baker before
signing it. Neither Kelly nor Baker asked the city to clarify or change any of the
provisions of the letter prior to its signature by Kelly.
11. On July J8, 2001, Kelly was still on his leave of absence from employment.
That morning around 10:30 a.m., he received a telephone call from Peck notifying him to
go to'tbe office ofTri-State Occupational Health in Dubuque for random drug and
alcohol tests pursuant to the "second chance" agreement. Kelly reported to the Tri-State
office on July 18th and was given a preliminary screening saliva alcohol test at 12:57 p.m.,
which resulted in a reading showing an alcohol concentration of over .02. A
confnmation breath alcohoItest was then performed at I: 11 p.m. resulting in a reading
showing an alcohol concentration of .015. Tri-State then notified the city of the results of
both tests.
12. Prior to testing Kelly, Tn-State was notified by Peck on behalf of the city,
that the tests to be given to Kelly were not subject to "DOT" regulations. Tn-State did
most, if not all, of the employee drug and alcohol testing for the city. Persons holding
state commercial drivers licenses [CDLs] are subject to periodic, random drug and
alcohol testing under the federal motor carrier regulations as adopted by the U.S.
Department of Transportation. Drivers with CDLs employed by local governments are
also subject to this federally mandated testing. The City of Dubuque has many employees
like Kelly with CDLs subject these federal testing requirements. DOT regulations are
very specific about the procedures to be employed in administering these tests and in
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determining the results of the tests.
13. On August 2, 2001, the City of Dubuque sent Kelly a letter informing him
that his employment with the City of Dubuque is terminated as of July 3 1,2001 for
violation of the terms of the "second chance" agreement, due to the positive test for
alcohol on July 18th.
14. Kelly appealed his termination to the Civil Service Commission. A hearing
was held before the Civil Service Commission and later the commission filed a written
decision sustaining the decision of the city to terminate him by a 2 to I vote.
15. Kelly next gave notice of appeal to the city and the commission, and filed a
petition for judicial review in this case on November 1, 2001, asking t.l-¡e court to reverse
the termination decision, reinstate Kelly's employment and order the city to reimburse
him for lost wages and benefits. The city resists the appeal.
16.
On or about October 10,2001, the mOT issued Kelly a CDL.
17. Kelly was not allowed to return to work in any capacity for the city after
October 10,2001.
18. Prior to October 10, 2001, Kelly did not take a civil service examination for
the position of truck driver or laborer. Therefore he was not on the "civil service lists"
for thes.e positions on October 10,2001, because the lists include only those persons who
have taken and passed the tests.
During the negotiations for the "second chance agreement", none of the parties
talked about any requirement that Kelly take a civil service test or be placed on the civil
service "certified list" as a condition to be met before he would be allowed to return to
work after regaining his CDL. The agreement does not state that Kelly must take a cÍo/ÍI
service examination orbe on the civil service list before being returned to employment.
19. No evidence was presented to show that the City of Dubuque had any rules,
regulations or policies that defined a positive result to a random drug or alcohol test.
20. The "second chance agreement" letter described in paragraph 7 did not
include any definition of a positive result to a random drug or alcohol test, and did -not
refer to any other standard or regulation for a definition.
21. The city, Kelly and the union were all familiar with the provisions of the
federal motor carrier regulations regàrding random drug and alcohol testing, and they had
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dealt with these regulations regularly in connection with other aspects of their dealings.
Under the DOT regulations, an alcohol test result less than ,02 did notresult in any
adverse sanctions.
22. During the negotiations for the "second chance agreement", there was no
discussion between the parties as to definition of a "positive" test result. At no time did
any party raise any questions about what was meant by this terminology.
23. Under the DOT regulations, a screening test for alcohol is administered
first. The technician uses a swab to collect a specimen of saliva from the subject and then
places the swab in a "kit". Ifit does not turn "purple," the subject has "passed" the test, If
it does turn "purple", a reading is obtained. If the result obtained from the screening test
is more than .02, then a second, "confirmatory" test is given, which is commonly a breath
test with an instrument that gives an immediate digital reading. The result must be ,02 or
more before any sanctions are imposed under the DOT regulations. The DOT
regulations also require that 15 minutes or more elapse between the time of the screening
test for alcohol and the time of the confirmatory test for alcohol.
26. The records provided by Tri-State show that only 14 minutes elapsed
betwt:en the screening test and the confirmatory test given Kelly. . The technician from
Tri-State speculated that the clock on the wall at the lab may not have been synchronized
with the internal clock of the intoxilizer machine, thus giving the impression that less than
15 minutes elapsed between the two tests. She testified that she believed that she had
waited 15 minutes between the two tests.
27. Kelly's counsel presented an expert witness who is a medical doctor
¡director of a laboratory that does drug and alcohol testing for government agencies and
private businesses, including tests given under federally mandated standards like those of
the federal DOT, and those not subject to regulation. It is his opinion that the test given
to Kelly by Tri-State does not meet generally accepted industry standards, due to the fact
that less than 15 minutes elapsed between the screening test and the confirmatory test,
Therefore, the entire test should be considered a "canceled" test and no results should
have been reported to the employer.
The witness also testified that the confirmatory test of .015 indicates no
impairment since the result is less than .02. Therefore, based on both the DOT
regulations and generally accepted industry standardS, this is not a positive test result.
The city disagrees with Kelly's expert witness, but did not present any contrary
evidence.
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28. At trial the city argued that the "second chance agreement's" reference to
"positive test" amounts to a 0 tolerance policy for alcohol use, and that any alcohol level
the employee may have from any source is a violation of the terms of the agreement. The
employee disagrees and points out that no specific definition is given. Therefore, the
employee argues that a "positive test" means "impairment", which should be defined in
the context of the federal DOT regulations that the parties rely upon regularly in other
aspects of the employment relationship.
CONCLUSIONS OF LAW
29. The court has jurisdiction of the parties and the subject matter of this case
as provided by Section 400.27, Code of Iowa [20011.
An appeal from the decision of a city civil service commission to the district court
must be tried de novo. See Dolan v. Civil Service Com'n. ofDavenoort. 634 N.W.2d 657
(2001).
The appeal is also an equitable proceeding. At trial the court withheld ruling on
evidence objections, per Sille v. Shaffer. 297 N.W.2d 379 (Iowa 1980).
30. The burden of proof on the appeal is on the city/civil service commission to
prove.that the employee's termination was statutorily permissible. See Smith v. Des
Moines Civil Service Com'n. 561 N.W2d75 (Iowa 1997).
31. The November 20,2000 letter or "second chance agreement" constituted a
contract between the City of Dubuque and William Kelly. The construction of that
contract is now in dispute between the parties as it relates to the term "positive test" for
alcohol. Iowa Civil Jury Instruction No. 2400.5 gives the court the following guide to
interpretation:
"--"7:400:5 Terms'-~ litte/pl etutirm~ . w'deterrnining the -termsøfthe-eønúadyr>u
may consider the following:
1. The intent of the parties along with a reasonable application of the
surrounding circumstances.
2. ' The intent expressed in the language used prevails over any secret intention
of either party. .
3. The intent may be shown by the practical construction of a contract by the
parties and by the surrounding circwnstànæs.
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4. You must attempt to give meaning to all language of a contract, Because
an agreement is to be interpreted as a whole, assume that all of the language is
necessary, An interpretation which gives a reasonable, effective meaning to all terms is
preferred to an interpretation which leaves a part of the contract unreasonable or
meaningless.
5. The meaning of a contract is the interpretation a reasonable person would
give it if they were acquainted with the circumstances both before and at the time the
contract was made.
6. Ambiguous language in a written contract is interpreted against the party
who selected it.
7. Where general and specific terms in the contract refer to the same subject,
the specific terms control. "
After applying these criteria, the court cannot conclude that the parties mutually
agreed to follow a "0" tolerance policy. Rather, the more reasonable interpretation is that
they meant positive result to mean impairment as derIDed in the federal motor carrier
regulations.
32. Because the court has concluded that the federal motor carrier standards
apply,Jany violation of the standard testing procedures requirëd by the DOT regulations
renders the test results invalid. Under those standards, the result of the preliminary
screening test alone is insufficient to prove impairment. This is consistent with the Iowa
statutory procedure used in OWl cases under Chapter 3211, Code ofIowa, which does not
permit the screening test used there [PBT - preliminary breath test) to be used in
evidence. Therefore, this approach is fundamentally fair and equitable.
33. Even if the court were to conclude that. the federal motor carrier standards
. ont~ting procedures and the definition of impairmen.t were not applicable, the ,expert
testimony produced at trial as to standard laboratory testing practices is persuasive. On
that basis, too, the court concludes that the test conducted on July 18th is invalid.
34. There is no merit to the city's argument that Kelly is not eligible for
reinstatement under the "second, chance agreement" even if the court determines that he
did not have a positive alcohol test on July 18, 2000, because he did not take the' civil
service test and get on the certified list. Kelly had been previously employed by the city
as a laborer and truck driver, and had in fact performed those duties as part of his job
prior to being placed on the leave of absence. His employment with the city was not
terminated in November 2000. Therefore, his return to work by October 200 I under the
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agreement was not a "new hire," but rather a "recall."
35, Where a discharged civil service employee is reinstated by court order
following an appeal, the amount of back pay due the employee should first be considered
by the city. See Glenn v. Chambers, 48 N.W.2d 275, 242 Iowa 760 (1951).
RULING AND ORDER
It is ORDERED that:
36. The decision of the Civil Service Commission of the City of Dubuque that
sustained the decision of the City of Dubuque, Iowa to terminate the employment of
William Kelly is reversed.
37. William Kelly shall be reinstated to employment by the City of Dubuque,
Iowa as of October 10,2001, as a laborer or truck driver.
38. Kelly is entitled to compensation from October 10,2001, which shall be
determined initially by the civil service commission and paid by the City of Dubuque,
Iowa.
39. Court costs are taxed to defendants. Costs due the clerk of court as of the
date of this Order are: $ /5..ø.-
DATED: November 12, 2002
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Cc;>y c1 this document was mailed to
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MARILYN COGHLAN
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