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Home My WebLink About05/05/22 Civil Service CommissionAgenda Civil Service Commission Thursday, May 5, 2022 8:15 a.m. Helling Conference Room City Hall 410 E Washington St Iowa City, IA 1. Selection of Commission Chair 2, Consider motion to dismiss Puente civil service complaint If you will need disability -related accommodations in order to participate in this program/event, please contact Karen Jennings, Human Resources at 319- 356-5025 or karen iennings(cDiowa-city.orq. Early requests are strongly encouraged to allow sufficient time to meet your access needs. BEFORE THE CIVIL SERVICE COMMISSION OF IOWA CITY, IOWA EMILIO PUENTE, ) File No. Employee, ) COMPLAINT CITY OF IOWA CITY, ) ) Employer. ) 1 COMES NOW the Employee, and for his Complaint states: 1. The Employee served as a peace officer for Iowa City. 2. Employee was coerced into resigning his employment under duress in February, 2022. 3. Employee obtained counsel, who lettered Employee's commanding officer, requesting the City rescind the resignation as it was invalid. 4. Counsel for the City responded on April 15, 2022, that the City would not rescind the coerced resignation. City. 5. Counsel's letter of April 15 effects an end to Employee's employment with the 6. The separation from employment, which was either an invalid resignation or a constructive discharge, was wrongful. 7. Employee files this complaint seeking a hearing before the Commission, and reinstatement. WHEREFORE the Plaintiff prays for a hearing, and a decision by the Commission to reinstate his employment. 1 ELLIS LAW OFFICES, P.C. _ /s/ Ryan J Ellis Ryan J. Ellis, AT0002289 ELLIS LAW OFFICES, P.C. 209 N. Buxton Indianola, Iowa 50125 (515)962-9080 (515) 961-2779 fax Ryan(a)ellislawpc com ATTORNEY FOR EMPLOYEE /s/ Peter M Sand Peter M. Sand 2629 Beaver Ave. #3 Des Moines, IA 50310 (515)698-9000 cell-(515) 556-3245 pete.sand6@gmall.com ATTORNEY FOR EMPLOYEE BEFORE THE CIVIL SERVICE COMMISSION FOR IOWA CITY, IOWA EMILIO PUENTE, EMPLOYEE, V. CITY OF IOWA CITY, IOWA, EMPLOYER. MOTION TO DISMISS "COMPLAINT" TO THE CIVIL SERVICE COMMIS�JON COME NOW, the City of Iowa City and Police Chief Dustin Liston, Employer, in the above -referenced matter, by Assistant City Attorney Jennifer L. Schwickerath, and hereby move the Iowa City Civil Service Commission to dismiss the "Complaint" filed by Emilio Puente on April 27, 2022, and in support of said Motion, state to the Commission as follows: FACTS 1. Emilio Puente was appointed to the position of police officer by former Police Chief Jody Matherly effective April 24, 2019. 2. Emilio Puente was served with a Notice of Pre -Disciplinary Hearing on February 1, 2022. The Notice of Pre -Disciplinary Hearing provided the date and time as well as the following language "You are entitled to representation by an attorney, union representative, or other department employee." 3. Emilio Puente appeared for the Pre -Disciplinary Hearing with his union representative on February 3, 2022. On February 3, 2022, after the hearing and prior to Police Chief Liston issuing a decision, Emilio Puente submitted a signed letter of resignation from his employment. The resignation was accepted by Police Chief Dustin Liston that same day. Union representatives also coordinated the return of City property from Emilio Puente that same day. (See Exhibit "A", Letter of Resignation, attached hereto and incorporated herein.) 4. Iowa City Police Sergeant Kevin Bailey went to Emilio Puente's home on February 4, 2022 to retrieve the remaining City property in Emilio Puente's possession and to provide Emilio Puente with a proposed amendment to a training reimbursement agreement releasing Emilio Puente from the obligation to reimburse the City for training expenses. 5. Two weeks later, on February 18, 2022, Emilio Puente returned the signed amendment to the Iowa City Police Department. Said amendment contains the following recitals: "Emilio Puente has submitted his resignation from the position of Iowa City Police Officer of the City of Iowa City' and "Employee's employment with the City has come to an end." (See Exhibit "B", First Amendment to Officer Training Reimbursement Agreement, attached hereto and incorporated herein). 6. In a letter dated April 13, 2022, Attorney Peter M. Sand made "a written request to rescind Officer Puente's letter of resignation and reinstate his employment" to Police Chief Dustin Liston, On April 15, 2022, City Attorney Eric Goers, on behalf of Chief Liston and the City, declined the request. 7. The Iowa Supreme Court has held that any attempt to withdraw a resignation after it has been accepted is of no legal effect. Haberer v. Woodbury Ctv., 560 N.W.2d 571, 578 (Iowa 1997). 8. On April 27, 2022, Emilio Puente filed a document with the Civil Service Commission through the Iowa City City Clerk's Office entitled "Complaint" requesting a hearing before the Commission to reinstate his employment. 9. Iowa Code Chapter 400 provides the Commission with the authority to hear appeals and §400.20 states as follows: "The removal, discharge, demotion, or suspension of a person holding civil service rights may be appealed to the civil service commission within fourteen calendar days after the removal, discharge, demotion, or suspension." CONCLUSION 10. Pursuant to Iowa Code §400.20, an appeal to the Commission must be filed within fourteen days after the "removal, discharge, demotion or suspension." Emilio Puente resigned on February 3, 2022. The fourteen day deadline for filing for review by the Commission expired on February 17, 2022. The "Complaint" in this matter was filed on April 27, 2022, which is after the deadline of February 17, 2022. 11. Therefore, the Commission does not have jurisdiction over the merits of this appeal and must dismiss the matter. Further, the Iowa City Civil Service Commission is under the obligation to rule on this motion to dismiss, and the City requests that the Commission do so in an expedient manner prior to a hearing on the merits. See, City of Bettendorf v. Kelling, 465 N.W.2d 299 (Iowa App. 1990). WHEREFORE, the City of Iowa City and Police Chief Dustin Liston hereby move the Iowa City Civil Service Commission to dismiss the above -referenced matter for lack of jurisdiction due to Emilio Puente's failure to timely file an appeal. Respectfully submitted, Mn ifer Schwickerath A I M520023 Assistant City Attorney ; 410 East Washington Street., Iowa City, IA 52240 (319) 356-5030 _. Original: Iowa City City Clerk copy: Ryan J. Ellis, AT0002289 ELLIS LAW OFFICES, P.C. 209 N. Buxton Indianola, Iowa 50125 ryan@ellislawpc.com Attorney for Emilio Puente Peter M. Sand 2629 Beaver Ave. #3 Des Moines, Iowa 50310 pete.sand6@gmail.com EXHIBIT A February 3, 2022 Chief Liston, Thank you for giving me the opportunity to serve for you as an officer with the City of Iowa City. Thank you for your time and attentiveness to my thoughts during our meeting today. I am aware of the position I put you In that led to this moment. I believe it Is in my best Interest and the best interest of the Iowa City Police Department to tender my resignation at this time. Respectfully, Emilio Puente EXHIBIT B FIRST AMENDMENT TO OFFICER TRAINING REIMBURSEMENT AGREEMENT RECITALS WHEREAS, Emilio Puente (hereinafter, the "EMPLOYEE") has submitted his resignation from the position of Iowa City Police Officer of the City of Iowa City (hereinafter, the "City"); and WHEREAS, EMPLOYEE's employment with the CITY has come to an end; and WHEREAS, EMPLOYEE and the CITY entered into an OFFICER TRAINING REIMBURSEMENT AGREEEMENT, dated April 24, 2019 (hereinafter, the "AGREEMENT"), in which EMPLOYEE agreed to reimburse the CITY for the $23,162.24 the CITY spent to train EMPLOYEE as a certified peace officer; and WHEREAS, the intent of the AGREEMENT was to allow the CITY to recoup the expenses of training and certifying an officer if the CITY ultimately was not able to derive the benefit of EMPLOYEE's service as a police officer for at least four years, especially if EMPLOYEE left employment with the CITY for employment with another law enforcement agency; and WHEREAS, the CITY is willing to enter into this written amendment (hereinafter, the "AMENDMENT") to the AGREEMENT to waive the CITY's rights to reimbursement, assuming EMPLOYEE does not, before April 24, 2023, take a position with another law enforcement agency as a peace officer. TERMS OF AMENDMENT THEREFORE, EMPLOYEE and the CITY (hereinafter, the "PARTIES") agree to the following written amendment to the AGREEMENT, pursuant to Section IX of said AGREEMENT: 1, THIS AMENDMENT is made and entered into this �c cl day of �b by and between the CITY and EMPLOYEE. 2. CITY agrees to waive the reimbursement to which it would otherwise be entitled under the terms of the AGREEMENT unless, before April 24, 2023, EMPLOYEE takes a position as a peace officer. 3. If EMPLOYEE does take a position as a peace officer, in any state, before April 24, 2023, EMPLOYEE will reimburse the CITY $11,581,12. This amount constitutes 50% of the CITY's costs and is the rate at which EMPLOYEE would have had to reimburse the CITY under the terns of the AGREEMENT, absent this AMENDMENT. The PARTIES agree this 50% reimbursement amount is appropriate, even if employment with another law enforcement agency comes more than a year after EMPLOYEE's completion of approved training, because the CITY will not be benefitting from the service of EMPLOYEE during the interim period of time. 4. All other terns and conditions of the AGREEMENT not amended herein remain in full force and effect. THE EMPLOYEE Emi� te, Police Office CITY OF IOWA CI Ge_OT Fr4iin,,`City Manager Dust n JWb, Chief of Police