Claim by Michael BurdsTHE CITY OF
DUB E
Masterpiece on the
BARRY LIND
CITY ATTOR
To:
DATE:
MEMORANDUM
Jeanne Schneider
City Clerk
October 25, 2007
RE: Michael Burds and The Association of Professional Firefighters,
Local 353 v. City of Dubuque, an Iowa Municipal Corporation,
Michael Van Milligen, and Dan Brown
Jeanne:
Please place the enclosed Petition on the City Council Agenda for the November 5,
2007 Agenda as a referral to the City Attorney's Office.
Enclosure
cc: Michael Van Milligen, City Manager
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 583-4113 / FAx (563) 583-1040 / EnnAIL balesq@cityofdubuque.org
IN THE IOWA DISTRICT COURT FOR DUBUQUE COUNTY
MICHAEL BURDS and THE )
DUBUQUE ASSOCIATION OF )
PROFESSIONAL FIREFIGHTERS, )
LOCAL 353 )
Plaintiffs, )
vs. )
)
THE CITY OF DUBUQUE, an )
IOWA MUNCIPAL )
CORPORATION, MICHAEL VAN )
MILLIGAN AND E. DANIEL BROWN)
Defendants. )
EQUITY NO. EC~~C.-VC~~Gq I
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PETITION ~_ ~; ~
FOR WRIT OF ~~ ,~,
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MANDAMUS, ~',
DECLARATORY
JUDGMENT AND
INJUNCTIVE RELIEF
Plaintiffs, for their cause of action against Defendants, state the
following:
PARTIES
1. Plaintiff Michael Burds, °Burds", is a Dubuque resident who
holds the rank of Fire Equipment Operator in the Dubuque
Fire Department and has been a Dubuque Firefighter for 30
years.
2. Plaintiff Dubuque Association of Professional Firefighters,
Local 353, "Association", is a duly organized union who has
represented Dubuque Firefighters since 1933 and pursuant to
Chapter 20 collective bargaining for the past 35 years.
3. Defendant City of Dubuque, "City", is a duly organized Iowa
municipality pursuant to state law.
4. Defendant Michael Van Milligan is the Defendant City's
Manager who has authority to make fire department
promotions from certified Civil Service lists.
5. Defendant E. Daniel Brown is the Defendant's Fire Chief who
has authority to recommend and/or make fire department
promotions from certified Civil Service lists.
Burds and Dubuque Firefighters 353 v City of Dubuque; Petition for Writ of Mandamus - 1
FACTUAL BACKGROUND
6. This Civil Service law controversy pertains to the application
of Chapter 400 of the Code and whether or not Defendants
have duly followed Civil Service law for the positions of
Captain and Lieutenant in the Dubuque Fire Department.
7. The rank of Fire Lieutenant and Fire Captain are Civil Service
employee ranks governed by and protected by Section 400.6
of the Code.
8. Promotional examinations for the ranks of Fire Lieutenant and
Fire Captain are governed by Section 400.9 of the Code,
"Promotional Examination and Procedures".
9. The Dubuque Civil Service Commission is a duly organized
commission pursuant to state law that has jurisdiction and
sole authority to administer promotional examinations for
Civil Service jobs pursuant to Section 400.9 and 400.11 of the
Code.
10. The Dubuque Civil Service Commission has the authority
pursuant to Sections 400.9 and 400.11 of the Code to ensure
the City follows a duly approved Civil Service promotional list.
COUNT I
PETITION FOR WRIT OF MANDAMUS
1-10. Plaintiffs realleges and repleads paragraph 1 through
paragraphs 10 of the petition as if fully set forth herein as
paragraphs 1 through 10 of count I.
li. On July 8, 2005 the Dubuque Civil Service Commission duly
approved and certified to Defendants a list of individuals who
passed the Civil Service written examination for the position
of Captain on the Dubuque Fire Department.
12. On July 8, 2005 the Dubuque Civil Service Commission duly
approved and certified to Defendant's a list of individuals who
passed the Civil Service written examination for the position
of Lieutenant on the Dubuque Fire Department.
13. Defendants have known since July 8, 2005 that the Dubuque
Civil Service Commission certified promotional lists for the
Burds and Dubuque Firefighters 353 v City of Dubuque; Petition for Writ of Mandamus - 2
openings of Fire Lieutenant and Fire Captain. The Civil
Service Commission stipulated to the Mayor and City Council
the following:
°We hereby certify that the following
individuals have passed this written
examination and the vacancy for this
position should be made from this list
and that this list is good for two (2)
years from the above date July 8,
2005]."
14. The Civil Service certified promotional lists for Fire Lieutenant
and Fire Captain was originally valid for the period of time
from July 8, 2005 to July 8, 2007. See attached Ex. A, Civil
Service Commission Certification Lists, July 8, 2005, made an
integral part of this petition.
15. On March 17, 2006 the Dubuque Civil Service Commission
certified a corrected Fire Lieutenant Civil Service List to
Defendants. The corrected list for Fire Lieutenant extended
and made the Lieutenant promotional list valid until March 17,
2008. See Ex. 8, March 17, 2006 Certification Lists, made an
integral part of this petition.
16. On or about March 15, 2007 the Dubuque City Council
approved the fiscal year 2008 city budget, approving the
promotion of two new Fire Captains and one new Fire
Lieutenant in the Dubuque Fire Department.
17. Defendants failed to appoint firefighters from the Dubuque
Civil Service Commission's Fire Lieutenant and Fire Captain
certified lists in effect when the fiscal year 2008 budget began
on July 1, 2007 because Defendants contend they were not
required to follow said promotional lists.
18. Defendants have publicly stated to the Dubuque Civil Service
Commission that they will not use said duly approved Civil
Service lists for the Fire Lieutenant and Fire Captain positions
that were in effect on July 1, 2007 and intend to disregard
these lists.
19. Defendant's contention that both lists have expired is
incorrect. The Fire Lieutenant is still in effect until March 17,
2008, two years after the date of the corrected list approved
Burds and Dubuque Firefighters 353 v City of Dubuque; Petition for Writ of Mandamus - 3
by the Dubuque Civil Service Commission. The Fire Captain's
list was valid until July 8, 2007.
20. At Plaintiffs' request, the Dubuque Civil Service Commission
passed a motion at their September 11, 2007 meeting
directing the City to use the certified lists in effect on July 1,
2007, by the following motion:
'~I move to direct the Fire Chief to use the
certified list in effect on July 1, 2007 for the
positions of Fire Lieutenant and Fire Captain to
fill vacancies of the positions of two Captains
and one Lieutenant, created as of July 1,
2007." See attached Ex. C made an integral
part of this petition.
21. The Dubuque Civil Service Commission September 11, 2007
motion has been ignored by the Defendants, who claim the
Commission has no authority to approve said motion.
22. Plaintiffs have exhausted their administrative remedies by
requesting the Dubuque Civil Service Commission to direct
Defendants to use the existing Civil Service lists in effect on
July 1, 2007.
23. Plaintiff Burds is a public employee who is personally
interested in the promotions because his name was on both
certified Civil Service preferred lists for Lieutenant and
Captain. Plaintiff Burds will incur irreparable injury as a result
of Defendants' nonperformance of their duty because he has
been and wilt be denied the opportunity for the Lieutenant
promotion and Captain promotion because he will not be on
the next certified list Defendants will create. See Affidavit of
Michael Burds, October 22, 2007.
24. Defendants have a duty pursuant to Chapter 400 of the Iowa
Code, specifically 400.9 and 400.11, to make the Lieutenant
and Captain fire promotions from the certified Civil Service
preferred lists approved by the Dubuque Civil Service
Commission and legally valid until July 8, 2007 and March 17,
2008 respectively and reaffirmed in the Commission's
September 11, 2007 motion.
25. Defendants have breached their duty to make the Lieutenant
and Captain promotions from the duly approved and certified
Burds and Dubuque Firefighters 353 v City of Dubuque; Petition for Writ of Mandamus - 4
Civil Service lists existing until July 8, 2007 and March 17,
2008 and have unequivocally stated that they will not follow
the Civil Service Commission's September 11, 2007 motion.
26. Defendants' actions in failing to promote from the certified
Civil Service fire promotion preferred list was purposefully
done is without any rational basis and was arbitrary and
capricious.
27. Plaintiff Association has a direct interest in the promotions
pursuant to Chapter 400 because they represent all
firefighters, paramedics, medical officers, lieutenants and
captains in the bargaining unit and contend the lawful
procedures of Chapter 400 of the Code must be followed by
Defendants so as to ensure a defined and fair process for
each union applicant to follow for Civil Service promotions.
See Affidavit of David Bea ves, October 22, 2007.
28. Pursuant to Chapter 400 of the Code it is the duty of
Defendants to use the existing promotional Civil Service
preferred lists for Fire Lieutenant and Fire Captain to fill the
three vacancies in the Dubuque Fire Department. See
Plaintiff's Ex. D, October 2, 2007 letter to Dubuque Civil
Service Commission Chair Merle Duehr from Plaintiff's
counsel.
29. There is a clear absence of intention by Defendants to use the
July 1, 2007 Civil Service list for promotions. See Plaintiff's
Ex. E, September 13, 2007 Letter to Defendant Van Milligan
from Attorney Lindahl.
30. Defendants have a duty to follow the lawful Civil Service
promotional statutes and to be bound by Chapter 400 of the
Code.
31. Plaintiff has no plain, speedy or adequate remedy at law.
WHEREFORE, Plaintiffs pray that a Writ of Mandamus issue
demanding Defendants forthwith use the duly approved certified Civil
Service preferred lists existing on July 1, 2007 for the promotions to
one Fire Lieutenant and two Fire Captains position with back pay from
July 1, 2007 and to prevent Defendants from promoting from a new
list and for judgment against Defendants and for costs of this action
and for other relief the Court deems proper.
Burds and Dubuque Firefighters 353 v City of Dubuque; Petition for Writ of Mandamus - 5
COUNT II
DECLARATORY JUDGMENT
Plaintiff, pursuant to I.R.Civ.P. 1.1101 et. al. brings the following
cause of action against Defendants:
1-10. Plaintiffs realleges and repleads paragraph 1 through
paragraphs 31 of count I as if fully set forth herein as
paragraphs 1 through 31 of count II.
32. There is a justifiable controversy between the parties
concerning the legal application of Sections 400.9 and 400.11
and other sections of Chapter 400 of the Code, "Civil Service".
33. The Court should issue an order declaring the relative rights
of the parties pursuant to Chapter 400 of the Iowa Code.
WHEREFORE, Plaintiffs request that the Court issue a Declaratory
Judgment declaring the rights of the parties regarding the promotional
lists for one Fire Lieutenant and two Fire Captains positions pursuant
to Chapter 400 of the Code and finding that the Plaintiff's position and
the Dubuque Civil Service Commission's position is valid and lawful.
COUNT III
TEMPORARY IN]UNCTIVE RELIEF
Plaintiff, pursuant to I.R.Civ.P. 1.1501 et. al. states the following
for a temporary injunction:
1-33. Plaintiffs realleges and repleads paragraph 1 through
paragraphs 33 of Counts I and II as if fully set forth herein as
paragraphs 1 through 33 of count III.
34. Plaintiffs will be irreparably harmed if the Defendants are
allowed to proceed with the new list be for Fire Lieutenant
and Fire Captain and before Plaintiff Burds will not have the
opportunity to seek this promotional opportunity. See
Affidavit of Plaintiff Burds dated October 22, 2007 and
Affidavit of David Beaves dated October 22, 2007.
35. Defendants will proceed to create new promotional lists and
fill the positions from new lists if an injunction is not issued,
Kurds and Dubuque Firefighters 353 v City of Dubuque; Petition for Writ of Mandamus - 6
thus violating Plaintiff Burds' right to seek the promotional
opportunity of Fire Lieutenant and Fire Captain.
WHEREFORE, Plaintiffs request the Court issues a temporary
injunction to prevent the City from using a new Civil Service list for
one Fire Lieutenant and two Fire Captain Civil Service positions.
Michael J. Meloy~0005306
2828 18th eet, Ste.4
Bettendorf, IA 52722
(563)359-3959
(563)359-3953 fax
ATTORNEY FOR PLAINTIFF
State of Iowa )
SS:
Dubuque County )
I, Michael Burds, being on oath duly sworn, depose and state
that I am the person named as Plaintiff is in this action and I have
read the foregoing petition and the statements are true and correct.
_.
/~~~~ ,.~
Michael Burds
State of Iowa )
SS:
Dubuque County )
Subscribed and sworn before me, a notary public, this ~~~ day
of October, 2007.
~.~, ~ a~ ®EBRA A. CALHOUN
:° ~ Commission Number 160175 (-\ , _ ~~ ~ ~ (~ ~ ~~~
My mmission F~Ires ~~= ~~L
~OWP ~_ J_ 1 _ O ^~
^T ~1/ Notary Public in and for the said State of Iowa
Burds and Dubuque Firefighters 353 v City of Dubuque; Petition for Writ of Mandamus - 7
State of Iowa )
SS:
Dubuque County )
I, David Beaves, being on oath duly sworn, depose and state
that I am the President of the Dubuque Association of Professional
Firefighters, Local 353, who are a Plaintiff in this action and I have
read the foregoing petition and the statements re true and correct.
'` ,M
David Beaves
State of Iowa )
SS:
Dubuque County )
Subscribed and sworn before me, a notary public, this ~.'~~ day
of October, 2007.
~~~~ ~
Notary Public in and for the said State of Iowa
04~., ~ DEBRA A. CALHOUN
~ Commission Number 160175
owe My L~-~m~reS
Burds and Dubuque Firefighters 353 v City of Dubuque; Petition for Writ of Mandamus - 8
Ei3; 25i 2f~~17 Ell.: 33 :31.9829912
City Clerk's Office
50 West 13th Street
[hrbuque, lows 52001-4864
(563) 589 3120 Office
(563) 588-0690 Pax
(563) 694-6678 TDD
www cityofdubuque.org
Honorable Mayor and
Members of the City Council
~1IKE SURDS PAGE 22
niE cmr o~ - `~. ~
In accordance with Chapter 400 of the 2005 Code of Iowa, an examination for the
position of Fire Lieutenant was conducted on June 1, 2005. We hereby certify that the
following individuals have passed this written examdnation and vacancy for this
position should be made from this list and that this list is good for two (2) years rvm
abov- a c~a
FIRE LIEUTENAiNT
Wayne Dow
harry Ewert
Charles Blasen
Allichael McMahon
Bryan McDonald
John Fitzgerald
Greg Harris
Michael Burds i/
Gary Weets
Jeffrey 5anderfield
Terry Stewart
Mark Murphy
Jerrod Atkinson
Kevin Esser
Respectfully submitted,
Service People Integrity Responsibility Innovation 'i~amwork
Merle Duehr, Chairper$on ,
X3!25/2001 01:33 3195929912
City Qerk's Office
50 West 13th Street
Dubuque, Iowa 520014
(563) 589-5120 Office
(563) 589-0890 Fax
(563) 690678 Tbb
www. city of dubuqu e_org
h1IKE BURRS
PAGE 21
T}tE CfTY OF
y7 _ ,.
e~Q //
July 8, 2006
Honorable Mayor and
Membe-°s of the City Council
In accordance with Chapter 400 of the 2005 Code of Iowa, an examination for the
position of Fire Captain was conducted on May 31, 2005. We hereby certify that the
following individuals have passed this written examination and the vacancy for this
position should be made from this list and that this list is good for two (2) years from
above date.
FIRE CAPTAIW
Michael Burds
Michael Elliott
Robert Park
Robert Lange
MarkLudescher
Mark Buckle
Randall Rick
Thomas Ludescher
Bob Fitzpatrick
Respectfully submitted,
Sec.-ire People Intcgnity Rsapons~bility lnnovntion Ttamwork
~~ ~~~.
03i25i2001 01:33 3195829912 h9IKE BURDS PAGE 23
City Clerk's Office
50 Wesf lath Stn~et
Dubuque, Iowa 52001864
(563) 589~12D Office
(563) 589-4890 Fax
(563) 690-l~678 TDD
www.cityofdubuque.org
Honorable Mayor and
Members of the City Council
TKE CffY OF ..._.-`~
L~U13L~~U)--
In accordance with Chapter 400 of the 2005 Code of Iowa, an examination for the
position of Fire Lieutenant was conducted on June 1, 2005. We hereby certify that the
following individuals have passed this written examination and the vacancy for this
position should be made from this list and that this list is good for two (2) years from
above date.
FIRE LIEUTENANT (Corrected)
Wayne Dow
Larry Ewert
Charles Blasen
Michael McMahon
Bryan McDonald
John Fitzgerald
Michael Burds
Gary Wsets
Jeffrey Sanderfield
Terry Stewart
Mark Murphy
Jerrod Atkinson
Respectfully submitted,
Servtce Pcople Libegrlty iZcspor~elMllry lnnavetlon Team`+ock
March 17, 2006
THE CITY OF
~~JB ~
Masterpiece on the Mississippi
City Clerk's Office
City Hall
50 West 13th Street
Dubuque, Iowa 52001-4864
(563) 589-4120 office
(563) 589-0890 fax
ctyclerk p(~cityofdubugue.org
September 11, 2007
E. Daniel Brown
Fire Chief
11 West Ninth Street
Dubuque IA 52001
Dear Dan:
At the Civii Service Commission meeting on Tuesday, September 11, 2007,
Commission Member Paula Gieseman made the following motion:
"I move to direct the Fire Chief to use the certified list in effect on July 1, 2007 for
the positions of Fire Lieutenant and Fire Captain to fill vacancies of the positions
of two Captains and one Lieutenant, created as of July 1, 2007."
Commission Member Loras Kluesner seconded the motion and the motion passed 2-1
with Commission Member Kluesner voting nay.
Sincerely,
~~~~~
Merle Duehr
Chair -Civil Service C mission
cc: Michael C. Van Milligen, City Mana er
Randy Peck, Personnel Manager
Barry A. Lindahl, City Attorney
Dave Beaves, President, Dubuque Professional Firefighters Association
KOOS & MELOY
An Association of Attorneys
2828 18th Street, Suite 4
Bettendorf, Iowa 52722
Telephone: 563-359-3959
Fax: 563-359-3953
Gary K. Koos
kooslaw@koosmeloylaw.com
Michael ]. Meloy
meloylaw@koosmeloylaw.c:om
Attorneys at Law
October 2, 2007
Merle Duehr
Dubuque Civil Service Commission
1611 Garfield Avenue
Dubuque, IA 52001
Re: September 11, 2007 Civil Service Commission Motion
Directing the Fire Chief to use the July 1, 2007 Fire Civil
Service List for promotions -two Captain and one
Lieutenant positions.
Dear Mr. Duehr:
We are in receipt of Mr. Van Milligan's September 13, 2007 letter
to you regarding your September 11, 2007 motion on the use of the
fire department civil service lists for promotion in the Dubuque Fire
Department.
We clearly disagree with Mr. Lindahl's claim the Civil Service
Commission's September 11, 2007 motion is contrary to Iowa Law.
The Dubuque Civil Service Commission's September 11, 2007 motion is
valid and lawful. I am disappointed that the City of Dubuque will not
follow your lawful motion. I believe that Attorney Lindahl does not
represent the Dubuque Civil Service Commission, but represents the
City of Dubuque and his letter addressed to City Manager Van Milligan
appears to reflect that he only represents Mr. Van Milligan and the City.
As we stated to you at the September 11, 2007 Civil Service
Commission meeting, the Commission does have the authority over the
firefighter promotional lists pursuant to Chapter 400 of the Iowa Code.
Section 400.8 of the Code authorizes the Commission to hold civil
service examinations. Section 400.8 states that, "The Commission
shall establish the guidelines for conducting the examinations
under...this section." 400.8(2) states that the Commission "may
prepare and administer the examinations."
Section 400.11 of the Code states the Commission shall certify to
the City Council the names of persons with the highest standing from
the examination. Section 400.11 specifies that persons on the certified
lists shall hold preference for two years following the date of
certification for civil service openings. The Dubuque Civil Service
Commission has the authority to require the City to use the certified
lists for promotions pursuant to Chapter 400 of the Iowa Code.
The City of Dubuque approved their fiscal year 2008 budget on or
about March 15, 2007 establishing two new Captain positions and one
new Lieutenant position to be filled from the promotional lists certified
by the Commission. The certified lists for these two positions were
valid for at least until July 7, 2007. Accordingly, these were the valid
lists in effect on July 1, 2007 when the appointment should have been
made by the Fire Chief or the City Manager. There was no valid reason
for the Fire Chief or City Manager not to use these lists. The City has
not submitted any valid reason why these lists were not used to fill
these vacancies, nor has Mr. Lindahl explained to you why the certified
list was not used.
While Attorney Lindahl cites section 400.11 and agrees that the
captain and lieutenant lists were valid until July 7, 2007, he cites no
authority for the City ignoring the lists and failing to promote from
these lists between March 16, 2007 and July 7, 2007. Attorney
Lindahl's letter provides no valid reason for the City refusing to honor
the existing civil service promotional list which the Commission certified
to the City.
The City has no valid legal objection pursuant to section 400.11
of the Code to the use of the existing lists for the fire department
promotions. Funding was appropriated by the Dubuque City Council
effective )uly 1, 2007. The Fire Chief was well aware of these openings
since March 15, 2007 because of the City Council's budgetary actions
at that time.
Clearly, the Civil Service Commission does have the authority to
direct the Fire Chief or the City Manager on matters pertaining to
certified lists pursuant to Chapter 400 of the Code. The Commission's
authority is expressly stated under Chapter 400 of the Code. The
Commission has the authority to direct the City to follow the
certification lists for promotions. The Civil Service Commission is an
independent body established by the Iowa legislative pursuant to state
statute and is not a rubber stamp for the City.
z
Burds; Letter to Duehr - 10/2/07
The City does not have the authority to ignore your lawful
motion. If the City disagrees with the Civil Service Commission's
September 11, 2007 motion, they may appeal the matter to the Iowa
District Court to seek a judicial ruling. The Dubuque Association of
Professional Firefighters, Local 353, will then present arguments to the
Court on that issue in support of the Commission's motion.
I request that the Commission go on record reaffirming their
September 11, 2007 motion with an amendment directing both the Fire
Chief and City Manager use the certified list in effect on July 1, 2007 to
make the two Captain and one Lieutenant promotions in the Dubuque
Fire Department.
I took forward to addressing the Commission on this matter at
their October 11, 2007 meeting.
Sincerely,
br ~ ,. ;.
f ~ j,'~ g
~,, /
Michael J. M Co ~~
,y
Attorney at a,,vv
CC: Dave Beaves
Loras Kluesner
Paula Geiseman
Barry Lindahl
3
Burds; Letter to Duehr - 10/2/07
~.
Barry A. Lindahl, Esq.
I i City Attorney
Suite 330, Harbor View Place
i 300 Main Street
Dubuque, Iowa 52001-6944
(563) 583-4113 office
(563) 583-1040 fax
balesgC~?cityofdubuque.org
Michael C. Van Milligen, City Manager
City Hall -City Manager's Office
50 West 13th Street
Dubuque, IA 52001
TFiE CtT1 OF ~ f
C~.~ ~..J-E~-~~C1.1~
~.
~~~
September 13, 2007
RE: Civil Service Promotional Examinations
Dear Mike:
I am in receipt of a copy of a letter from Civil Service Commission Chairperson Merle
Duehr to Fire Chief Dan Brown dated September 11, 2007. In the letter, Chairperson
Duehr advises Chief Brown that the Civil Service Commission, at a meeting on
Tuesday, September 11, 2007, adopted the following motion by Commission Member
Gieseman by a 2-1 vote, with Commission Member Kluesner voting nay:
I move to direct the Fire Chief to use the certified list in effect on July 1,
2007 for the positions of Fire Lieutenant and Fire Captain to fill vacancies
of the positions of two Captains and one Lieutenant, created as of July 1,
2007.
As you know, effective July 1, 2007 there were two new captain positions and one
lieutenant position created in the Fire Department. However, the promotional lists for
captain and lieutenant expired July 7, 2007. No appointments to the new positions had
been made as of that date.
By letter dated July 20, 2007, I advised the Chairperson and Commission Members that
the new positions were created effective July 1, 2007, and under Iowa Code §400.11,
the Fire Chief had 30 days to fill the vacancies. However, the vacancies were not filled
and the promotional lists expired July 7, 2007. Under Iowa Code §400.11, after two
years following the date of certification, the promotional lists "shall be canceled and
promotion to the grade shall not be made until a new list has been certified eligible for
promotion." I advised the Commission further that, because the vacancies were not
filled from the promotional lists before they were canceled, the promotions cannot now
be made until new lists have been certified eligible for promotion. A copy of my July 20,
2007 letter is enclosed.
Service People Integrity Responsibility Innovation "Peamwork
v
The September 11, 2007 motion and letter from Chairperson Duehr to Chief Brown are
contrary to Iowa law in several respects. First, as I indicated in my July 20, 2007 letter,
the promotional lists expired July 7, 2007 and are by operation of law "canceled" and
promotion to the grade "shall not be made until a new list has been certified eligible for
promotion." (emphasis added) There are at this time no new lists that have been
certified eligible for promotion so no appointments can be made.
Second, the Fire Chief does not "fill vacancies''. Because the City of Dubuque is under
the city manager plan, promotions to positions under Chapter 411 other than those of
chief of police and chief of fire department are made by the City Manager. Iowa Code
€400.15.
Third, I am not aware of any authority in Iowa Code Chapter 400 or otherwise that
provides that the Commission can "direct" the City Manager or the Fire Chief to fill
vacancies. The Commission's authority with respect to promotions is limited to holding
competitive promotional examinations, establishing guidelines for conducting the
examinations, and certifying the results of such examinations to the City Council.
Finally, the appointing authority, in this case the City Manager, is not required and
therefore cannot be "directed" to appoint anyone on a certified promotional list.
If you have any questions about this letter, please call m~jat your earliest convenience.
Ver~ncerely,
arty A. Lindahl, Esq.
ity Attorney
Enclosure
cc: Mayor Roy D. Buol and City Council Members
Chairperson Duehr and Commission Members
Randy Peck, Personnel Manager
Jeanne Schneider, City Clerk
Dave Beaves, President, Dubuque Professional Firefighters Association