MICHAEL BURDS and THE DUBUQUE ASSOCIATION OF PROFESSIONAL FIREFIGHTERS, LOCAL 353, Plaintiffs-Appellees/Cross-Appellants, vs. THE CITY OF DUBUQUE, an IOWA MUNICIPAL CORPORATION, MICHAEL VAN MILLIGEN and E. DANIEL BROWN, Defendants-Appellants/Cross-Appellees.
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IN THE COURT OF APPEALS OF IOWA
No. 9-150 / 08-0571
Filed May 29, 2009
MICHAEL BURDS and THE DUBUQUE
ASSOCIATION OF PROFESSIONAL
FIREFIGHTERS, LOCAL 353,
Plaintiffs-Appellees/Cross-Appellants,
vs.
THE CITY OF DUBUQUE, an IOWA MUNICIPAL
CORPORATION, MICHAEL VAN MILLIGEN
and E. DANIEL BROWN,
Defendants-Appellants/Cross-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Lawrence H.
Fautsch, Judge.
The City of Dubuque appeals, and the plaintiffs cross-appeal, from the
district court’s ruling on their motions for summary judgment. AFFIRMED.
Barry A. Lindahl, Dubuque, for appellants.
Michael J. Meloy of Koos & Meloy, Bettendorf, for appellees.
Heard by Mahan, P.J., and Eisenhauer and Mansfield, JJ.
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EISENHAUER, J.
This is an appeal and cross-appeal from summary judgment in an action
for mandamus, declaratory relief, and injunctive relief brought by Michael Burds
and the Dubuque Association of Professional Firefighters.
The plaintiffs
challenged the City of Dubuque’s procedure in filling certain vacancies in the fire
department.
On appeal, the City of Dubuque contends the court erred in
determining a March 17, 2006 promotional list of fire lieutenant candidates was a
certified list in effect for two years. The plaintiffs cross-appeal, contending the
court erred in ruling the city could disregard a promotional list of fire captain
candidates. We affirm.
I. Background Facts and Proceedings. On July 8, 2005, the Dubuque
Civil Service Commission certified to the Dubuque City Council lists of individuals
who passed the written civil service exam for the positions of captain and
lieutenant on the Dubuque Fire Department. Iowa Code section 400.11 (2005)
requires the commission to certify a list of the ten persons who qualify with the
highest score on the exam. In the event of a tie for the tenth position, the list is to
include all the people whose scores put them in tenth place.
400.11.
Iowa Code §
Section 400.11 states those on a certified list hold preference for
promotion for two years following the date of certification.
The certified list for the captain position contained the ten names. The
certified list for lieutenant contained fourteen names. Because there had been a
tie for the tenth position, the list included the names of the twelve people who
achieved the highest scores. In addition, two names were erroneously placed on
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the list. On March 17, 2006, the commission sent another certified list for the
lieutenant position, which only included the twelve individuals who should have
been named in the July 8, 2005 list. The March 17, 2006 list was otherwise
identical to the July 8, 2005 list.
On March 15, 2007, the Dubuque City Council created two new positions
of captain and one position of lieutenant, effective July 1, 2007. The city did not
fill the positions by July 7, 2007, the expiration date of the July 8, 2005 certified
lists. Accordingly, a new civil service test was administered in September 2007,
and new certified lists were created on October 11, 2007.
Michael Burds had been a fire equipment operator for the Dubuque Fire
Department for thirty years. The results of his civil service exam placed him at
the highest rank on the July 8, 2005 certified list for the lieutenant position.
Burds did not take the civil service exam in September 2007 and therefore was
not on the October 11, 2007 certified list for lieutenant.
On October 24, 2007, Burds and the Dubuque Association of Professional
Firefighters piled a petition for writ of mandamus, declaratory judgment, and
injunctive relief.
They asked the court to direct the city to use the lists in
existence on July 1, 2007, to fill the captain and lieutenant positions. Following a
hearing, the district court determined the list for lieutenant provided to the
Dubuque City Council on March 17, 2006, was the certified list and therefore was
still in effect during the time the position was to be filled in July 2007.
Accordingly, the court granted the plaintiffs’ petition for temporary injunction to
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prevent the city from filling the lieutenant position from the October 11, 2007
certified list.
Both the city and the plaintiffs filed motions for summary judgment. A
hearing was held in February 2008, and on March 7, 2008, the court issued its
ruling.
The court reiterated its finding that the March 17, 2006 list for the
lieutenant position was a certified list effective until March 16, 2008. It ordered
the lieutenant position be filled from the candidates on that list. The court found
there was no problem with the certified list for captain, which expired on July 7,
2007.
The court held the city had no duty to fill those positions prior to its
expiration, and accordingly granted the city’s motion for summary judgment
concerning the captains.
The city filed a motion to amend and the plaintiffs filed a motion to enlarge
and amend. On April 2, 2008, the court granted the defendant’s motion to modify
the ruling language. The amended ruling held the appointment of two captains
from the October 11, 2007 certified list was valid. The plaintiffs’ motion was
denied.
II. Scope and Standard of Review. We review a summary judgment
ruling for the correction of errors at law. Kelly v. Iowa Mut. Ins. Co., 620 N.W.2d
637, 641 (Iowa 2001).
In reviewing the grant of summary judgment . . . the question is
whether the moving party demonstrated the absence of any
genuine issue of material fact and showed entitlement to judgment
on the merits as a matter of law. An issue of fact is ‘material’ only
when the dispute is over facts that might affect the outcome of the
suit, given the applicable governing law. The requirement of a
‘genuine’ issue of fact means that the evidence is such that a
reasonable jury could return a verdict for the nonmoving party. Our
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task on appeal is to determine only whether a genuine issue of
material fact exists and whether the law was correctly applied. We
examine the record in a light most favorable to the party opposing
the motion for summary judgment to determine if movant met his or
her burden.
Bill Grunder’s Sons Constr. v. Ganzer, 686 N.W.2d 193, 196 (Iowa 2004).
III. Analysis.
A. Lieutenant Position. We first address the city’s claim the district
court erred in holding the March 17, 2006 list for the lieutenant position was a
certified list effective for two years as outlined in section 400.11. They argue the
list was simply a correction of an error in the July 8, 2005 lieutenant list, and
therefore its two-year effective period should have expired on July 7, 2007.
In granting the plaintiffs’ motion for summary judgment on this issue, the
district court held:
A certified list under Iowa Code sections 400.9 and 400.11 implies
a proper certification (underlined for emphasis). The July 8, 2005
certification was not a proper certification as to the position of fire
lieutenant. Regardless of the intent of the commissioners as shown
by their affidavits, their actions in submitting the corrected certified
list for the fire lieutenant position on March 17, 2006, resulted in a
proper certification in that it was pursuant to the requirements of
Iowa Code section 400.11. It is identical to the July 8, 2005
certification with the exception that the list of names on the March
17, 2006 list is correct. The affidavits do not change the language
of the document. The 24-month period as to the position of fire
lieutenant will therefore not expire until March 17, 2008. The City of
Dubuque had a duty to fill the new position of lieutenant from this
list within 30 days of July 1, 2007, and failed to do so.
We find no error. The list provided by the commission on July 8, 2005, did
not comport with chapter 400. Accordingly, it was invalid. The list provided on
March 17, 2006, corrected the error, and therefore was a proper certification.
Because section 400.11 provides those on a certified list hold preference for
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promotion for two years following the date of certification, the list was in effect
during the thirty-day period beginning July 1, 2007, in which the city had to fill the
lieutenant position. Under law, it was required to fill the position with someone
named on the March 17, 2006 list.
B. Captain List. On cross-appeal, the plaintiffs contend the court erred
in holding the city was not required to use the July 8, 2005 certified list for captain
to appoint two captains to its fire department. The city filed a motion to dismiss
this cross-appeal on the basis the plaintiffs failed to file their notice of crossappeal—which was served on the city on May 1, 2008—with the district court.
Assuming the matter is properly before us, we reach the merits.
Dubuque created two captain positions effective July 1, 2007.
The
certified fire captain list then in existence expired July 7, 2007. The positions
were not filled by July 7, 2007, so new examinations and a new list was certified
to the city council on October 11, 2007. The new positions were filled from this
list.
The trial court held:
The question then is whether the city had a duty to appoint two fire
captains by July 7, 2007. Iowa Code section 400.11 requires an
appointment within 30 days of the opening of a position. On the
other hand, there can only be an appointment when there is a
certified list. In this instance, there was no certified list for the
position of captain after July 7, 2007. Plaintiffs argue that
Defendants and an obligation to fill the newly created captain’s
positions between July 1, 2007, and July 7, 2007. It appears
unreasonable, however to require the city to appoint the captains
by July 7, 2007, merely because it could have. The legislature
deemed thirty days to be a reasonable time to complete the
selection process and it would be contrary to the legislative intent to
limit the selection process to one week. The Civil Service
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Commission was therefore required to create a new certified list
pursuant to Iowa Code section 400.11 and did so.
We find no error in this reasoning.
We affirm the district court’s ruling on the motions for summary judgment.
AFFIRMED.
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