Austin Mensen v. Cedar Rapids Civil Service Commission

IN THE COURT OF APPEALS OF IOWA

No. 21-0410
Filed June 15, 2022

AUSTIN MENSEN,
Plaintiff-Appellant,

vs.

CEDAR RAPIDS CIVIL SERVICE COMMISSION,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Fae Hoover Grinde,

Judge.

Austin Mensen appeals the termination of his employment with the Cedar

Rapids Police Department. AFFIRMED.

Skylar J. Limkemann of Smith Mills Schrock Blades, P.C., Cedar Rapids,

for appellant.

Elizabeth D. Jacobi of the City of Cedar Rapids City Attorney’s Office, Cedar

Rapids, for appellee.

Heard by Bower, C.J., and Schumacher and Ahlers, JJ.
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SCHUMACHER, Judge.

Following a conviction for operating while intoxicated (OWI), second

offense, Austin Mensen appeals his termination from the Cedar Rapids Police

Department (the Department), which was upheld by the Cedar Rapids Civil Service

Commission (the Commission). He claims the Commission failed to provide

sufficient written findings of fact and conclusions of law supporting its decision. He

also alleges his termination was arbitrary. Given the absence of a requirement for

a municipal civil service commission to provide its findings of fact with any level of

specificity, we decline Mensen’s invitation to reverse on this ground. Additionally,

Mensen did not preserve his claim that termination was arbitrary; but even if he

had, his termination was not arbitrary. Accordingly, we affirm.

I. Background Facts & Proceedings

Mensen, a military veteran, was hired by the Cedar Rapids Police

Department in July 2016. He began work for the Department after graduating from

the police academy in November of the same year. The Department hired Mensen

with the knowledge that Mensen had been convicted in 2010 of OWI, first offense.

Mensen generally had positive performance reviews and a clean disciplinary

record during his approximately three years of employment with the Department.

On May 27, 2019, Mensen was drinking with friends in downtown Anamosa.

At approximately 2:30 in the morning, Mensen was pulled over and arrested for

OWI, second offense. At the time of his arrest, Mensen’s blood-alcohol content

was .176, more than twice the legal limit. Mensen’s driver’s license was revoked

due to the offense. As a result, the Department assigned him to desk duty.

Mensen subsequently sought out a peer-support program offered by the
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Department. The Department’s administrative investigation was suspended while

Mensen’s criminal proceedings proceeded. Mensen pled guilty to OWI, second

offense, in late July and informed the Department of the same.

On August 8, the Department gave Mensen notice that he was under formal

investigation. An administrative interview was conducted on August 13, during

which Mensen largely admitted to the events surrounding his arrest. The officer

who conducted the interview sent a memo to the Department’s disciplinary board,

detailing the charges against Mensen, the evidence assembled, and the policies

Mensen had violated. The board unanimously recommended termination.

The Department provided Mensen a notice of administrative hearing before

Chief of Police Wayne Jerman. The notice included the facts of Mensen’s offense

and alleged violations of Iowa law and Department policies. Mensen and his

counsel attended the hearing. Jerman issued a detailed written decision on

September 24. The decision included the factual basis for the allegations, namely

the events surrounding Mensen’s arrest. It also included the provisions of Iowa

law and Department polices violated by Mensen.1 Because of those violations,

Mensen’s employment with the Department was terminated.

Mensen appealed the termination decision to the Commission. The

Commission held an in-person hearing on December 18. During the hearing,

which lasted approximately nine hours, Mensen presented evidence suggesting

1 Jerman determined that Mensen violated two provisions of Iowa law: Iowa Code
section 123.46 (2019), public intoxication, and section 321J.2, operating while
intoxicated. He also determined Mensen violated several provisions of the
Department’s code of conduct, including rules related to violating criminal law,
incompetence, off-duty intoxication, obedience to rules, and obedience to laws and
orders.
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he suffered from mental illness and alcohol abuse, both of which may have been

exacerbated by a particularly difficult work week in the days leading up to his arrest.

The Commission issued its written decision on March 16, 2020. The entirety of

the decision reads:

This matter came on for hearing before the Cedar Rapids Civil
Commission on December 18, 2019. The City of Cedar Rapids was
represented by Assistant City Attorney Elizabeth Jacobi. Austin
Mensen was represented by Attorney Skylar Limkemann.
After considering the testimony of the witnesses and
examining the exhibits submitted by the City of Cedar Rapids, and
the Appellant on December 18, 2019, it is the Conclusion of the
Cedar Rapids Service Commission that the decision of Police Chief
Wayne Jerman be affirmed.

Mensen appealed to the district court, pursuant to Iowa Code section

400.27(3). Mensen primarily contended the Commission erred by failing to provide

sufficient written findings of fact and conclusions of law. The district court affirmed

Mensen’s termination on February 25, 2021. Mensen appeals.

II. Standard of Review

We review appeals from a municipal civil service commission de novo. See

Iowa Code § 400.27(3) (determining the scope of review is “de novo appellate

review without a trial or additional evidence”). This standard “requires us to give

weight to the findings of the commission, to review whether the sanction was

warranted and restricts us to the record made at the commission level.” Milligan

v. Ottumwa Civ. Serv. Comm’n, No. 18-1810, 2019 WL 5792655, at *5 (Iowa Ct.

App. Nov. 6, 2019).

III. Discussion

Mensen raises two claims on appeal. First, he alleges the Commission’s

order failed to include written findings of fact and conclusions of law, violating both
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the Commission’s own rules and what Mensen contends should be Iowa law. 2 He

also claims the Commission’s decision was arbitrary.

A. Written Order Requirements

1. Error Preservation

As a preliminary matter, the Commission contends Mensen failed to

preserve his claim that the order failed to include sufficient written findings of fact

and conclusions of law. Instead, the Commission suggests he preserved only his

claim that the order was not specific enough. We disagree with the Commission’s

preservation argument. First, the bifurcation of Mensen’s claims by the

Commission appears to be a distinction without a difference—it is difficult to

imagine how the Commission could have been more specific in their order without

including additional findings of fact and conclusions of law. While we do require

an issue to be both raised by the party and decided by the district court, we do not

require hyper-technical challenges like the one suggested by the Commission.

See Segura v. State, 889 N.W.2d 215, 219 (Iowa 2017).

Moreover, Mensen raised the claim both in his brief and at oral arguments

to the district court.3 The district court understood Mensen’s claim, noting,

2 We note that Mensen does not contend the Commission violated his due process
rights by failing to provide sufficient written findings of fact or conclusions of law.
Rather, he asks this court to extend our case law to require written findings for
municipal civil service commissions on non-due process grounds.
3 For instance, the argument section in his brief before the district court claims,

“This [c]ourt should reverse the Commission’s decision because it failed to make
findings of fact or conclusions of law in its written decision.” Similarly, at oral
argument before the district court, Mensen’s attorney noted,
[T]hat’s exactly what we are requesting the [c]ourt to do in this case,
to specifically require the Commissioner to make findings on all of
the issues presented in the adjudicatory proceeding before it . . .
state the evidence that the Commission relied upon in making those
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“[Mensen] argues that the [c]ourt should reverse [the Commission’s] decision

because it failed to make findings of fact or conclusions of law in its written

decision.” Mensen raised the issue, and the district court decided it. Error was

preserved. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). We turn

to the merits of Mensen’s claim.

2. Iowa Requirements for Written Findings

Mensen claims the Commission failed to include sufficient findings of facts

and conclusions of law in its written order. He asks this court to find a municipal

civil service commission is required to include written findings in its order and

determine the Commission’s order failed to meet this standard.

Mensen rests his claim on a string of cases starting in 1968. That year, our

supreme court held that administrative agencies, “even apart from any statutory

mandate, [must] make findings of fact on issues presented in any adjudicatory

proceeding.” Cedar Rapids Steel Transp., Inc. v. Iowa State Com. Comm’n, 160

N.W.2d 825, 837 (Iowa 1968). Such findings must be sufficient to enable judicial

review and inform the parties of what they are allowed or required to do. Id.

However, the court also noted that “ultimate findings of fact suffice. . . . [T]hose

findings are to be broadly and liberally construed . . . [and] [i]n case of doubt they

will be construed to uphold rather than defeat the judgment.” Id. at 838. The

supreme court subsequently applied the principles enunciated in Cedar Rapids

Steel to the worker’s compensation commissioner, Catalfo v. Firestone Tire &

Rubber Co., 213 N.W.2d 506, 509 (Iowa 1973), and the state board of educational

findings . . . [and] specify in detail the reasons for the Commission’s
conclusions.
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examiners, Erb v. Iowa State Bd. of Pub. Instruction, 216 N.W.2d 339, 342 (Iowa

1974).

The Iowa legislature passed the Iowa Administrative Procedure Act in 1974,

with the purpose of providing “a minimum procedural code for the operation of all

state agencies.” Iowa Code § 17A.1(2). However, the Act does not apply to

municipal administrative bodies. Iowa Code § 17A.2(1) (“‘Agency’ does not mean

. . . a political subdivision of the state or its offices and units.”). Thus, its provisions

are not applicable to the case at hand. The supreme court relied on the Iowa

Administrative Procedure Act when it declined to extend the principles from Erb,

and by extension, Cedar Rapids Steel, to a city council. See Dunphy v. City

Council of City of Creston, 256 N.W.2d 913, 920 (Iowa 1977) (“The principles

enunciated in Erb have been superseded by chapter 17A . . . . Plaintiffs have not

established as a matter of law [the city council] was required to make findings of

fact in conjunction with [its decision].”).

Two years later, the supreme court applied Erb’s reasoning to require a

county board of adjustment to issue written findings on the merits of its decision.

Citizens Against Lewis and Clark (Mowery) Landfill v. Pottawattamie Bd. of

Adjustment, 277 N.W.2d 921, 924-925 (Iowa 1979). The court’s reasoning is worth

quoting at length:

In view of the careful safeguards set up in the adoption of the
Administrative Procedure Act, we find it difficult to permit other
governmental agencies, even though not covered by that statute, to
operate with [n]o rules and without established procedural
guidelines. We hold that the failure to adopt rules as mandated by
both the statute and [the city’s local ordinance] invalidates the board
action. . . . There is no statutory requirement that the board [issue
written findings on the merits]. However, there is no doubt such
findings would be of great benefit, both to the trial court and to this
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court on certiorari or appeal from the board’s decisions. They would
provide a ready basis for determining the reasons for the board’s
action and would help immeasurably in determining whether the
result was reasonable or was, as is frequently claimed, arbitrary and
capricious. It would also serve the additional purpose of sharpening
the issues the parties should raise on appeal.
We have not applied the Erb rationale to board of adjustment
cases, but we believe it is now time to do so. In reaching this
conclusion, we rely strongly on the following statement in K. Davis,
Administrative Law Treatise § 16.05 (2d ed. 1978):
The practical reasons for requiring
administrative findings are so powerful that the
requirement has been imposed with remarkable
uniformity by virtually all federal and state courts,
irrespective of a statutory requirement. The reasons
have to do with facilitating judicial review, avoiding
judicial usurpation of administrative functions, assuring
more careful administrative consideration, helping
parties plan their cases for rehearings and judicial
review, and keeping agencies within their jurisdiction.
These are compelling considerations which have persuaded
us to adopt the rule that boards of adjustment shall make written
findings of fact on all issues presented in any adjudicatory
proceeding. Such findings must be sufficient to enable a reviewing
court to determine with reasonable certainty the factual basis and
legal principles upon which the board acted. This rule shall apply to
board of adjustment proceedings after the date this opinion is filed.

Id. at 925 (internal citations omitted).

This board-of-adjustment exception to the general inapplicability of Erb

continues to be recognized by our courts. See Bontrager Auto Service, Inc. v.

Iowa City Bd. Of Adjustment, 748 N.W.2d 483, 488 (Iowa 2008); Palensky v. Story

Cnty. Bd. of Adjustment, No. 19-0349, 2020 WL 1879711, at *3 (Iowa Ct. App.

Apr. 15, 2020). It has not been extended to any other municipal governments or

agencies.

Mensen asks us to utilize those cases to declare municipal civil service

commissions must issue written findings of fact and law with some level of

specificity. However, Mensen concedes his claim requires this court to extend
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case law beyond its current scope. It is not the proper role for this court to create

new law. See, e.g., Village at White Birch Town Homeowners Ass’n v. Goodman

Assoc., Inc., No. 11-1842, 2012 WL 5356045, at *4 (Iowa Ct. App. Oct. 31, 2012)

(declining to extend a doctrine beyond current case law, “leaving that

determination to our supreme court”); State v. Grady, No. 19-0865, 2020 WL

1049833, at *4 (Iowa Ct. App. Mar. 4, 2020) (“[W]e are not at liberty to overturn

Iowa Supreme Court precedent”); see also Iowa R. App. P. 6.1101(3) (noting that

this court ordinarily only determines cases “presenting the application of existing

legal principles” or cases “presenting issues that are appropriate for summary

disposition”). While the principles enunciated in cases like Cedar Rapids Steel,

Erb, and Citizens may have a basis that could apply to cases like this one,4 our

court can neither extend case law beyond its current scope nor create new law.

We further note the adoption of a requirement for written findings to boards

of adjustment was applied prospectively, rather than retrospectively. See Citizens,

277 N.W.2d at 925 (noting that the requirement for written findings applied to

boards of adjustment took effect “after the date this opinion is filed”). Thus,

Mensen would be without retrospective relief.

And we find distinction in the cases cited by Mensen, specifically Bontrager

and Palensky, as the cases cited by Mensen contain a standard of review relative

to a certiorari request. The instant appeal requires the district court, as well as our

court, to conduct an appellate de novo review rather than determine whether the

4 The Commission strenuously argues that the principles do not apply to the case
at hand, where there were no disputed facts or credibility determinations and the
review is de novo.
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agency’s findings are supported by substantial evidence. Two of the reasons for

requiring written findings, as outlined by the court in Citizens, were the avoidance

of judicial usurpation of administrative functions and a review of certiorari, both

factors absent in this appeal due to the de novo nature in the instant appeal. Thus,

in the absence of any binding authority requiring municipal civil service

commissions to issue written findings of fact with any particular level of specificity

and the de novo review mandate for the district court and this court, we determine

that Mensen’s claim fails.

3. Failure to Follow Own Rules

Mensen contends the Commission failed to follow its own rules requiring

written findings of fact and conclusions of law. Cedar Rapids Civil Service

Commission Rule chapter IX, section 8(f) requires the Commission to “cause its

findings and decision to be prepared in writing and signed by each Commissioner.”

Mensen concedes that there is neither known Iowa case law nor statutory

authority requiring a municipal civil service commission to abide by its own rules

and procedures. He is limited to citing two cases from Illinois and Utah, neither of

which support his claim.5 We note that the failure to cite authority may render this

claim waived. See Iowa R. App. P. 6.903(2)(g)(3). In any event, absent a statutory

or constitutional basis to the contrary, municipalities are generally permitted to

5The Illinois case dealt with a state employee and the state administrative code,
not a municipal employee and municipal agency rules. Bell v. Civ. Serv. Comm’n.,
515 N.E.2d 248, 252 (Ill. App. Ct. 1987). The Utah case requires a municipal
agency to follow its own rules, but premises such a requirement on due process
concerns. Lucas v. Murray City Civ. Serv. Comm’n., 949 P.2d 746, 754 (Utah Ct.
App. 1997). As noted previously, Mensen does not allege a violation of his due
process rights.
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regulate their own affairs. See Madden v. City of Iowa City, 848 N.W.2d 40, 49

(Iowa 2014) (noting how, subject to limited statutory and constitutional limitations

not applicable here, municipalities are generally afforded home rule, which gives

municipalities “the power to determine local affairs as they see fit”); see also Iowa

Constitution article III, § 38A (constitutional provision establishing home rule); Iowa

Code § 364.3 (legislative exceptions to general home rule powers). It is up to the

legislature, not this court, to create additional exceptions. Accordingly, this claim

fails.

B. Was Mensen’s Termination Arbitrary?

1. Error Preservation

The Commission contends Mensen has failed to preserve his claim that his

termination was arbitrary, in violation of section 400.27. “It is a fundamental

doctrine of appellate review that issues must ordinarily be both raised and decided

by the district court before we will decide them on appeal.” Meier, 641 N.W.2d at

537. Here, the district court discussed the issue, finding “the record clearly sets

forth abundant evidence to support [Mensen’s] termination.” However, the court’s

discussion appears to be in the context of Mensen’s claim that appellate review of

a termination is impossible without further written findings. For instance, the court

did not include the issue when summarizing Mensen’s claims on appeal.

Mensen never raised the issue for the district court’s consideration. He did

not brief the district court on the issue, nor did he discuss it at hearing before the

district court. The closest Mensen’s counsel comes to discussing whether his

termination was arbitrary is by stating at the hearing that should the district court

deny his first claim, he “[would] try to address the merits the best we can with the
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record that we have.” Such an offhanded, isolated comment is insufficient to

preserve error. See Soo Line R.R. Co. v. Iowa Dep’t of Transp., 521 N.W.2d 685,

691 (Iowa 1994). Similarly, in his reply brief to the district court, he claimed to

“reserve the right to address [whether the termination was arbitrary]” in the event

the court did not reverse based on the Commission’s failure to issue written

findings. However, our courts have consistently held that a party cannot raise an

issue for the first time in a reply brief. See Sun Valley Iowa Lake Ass’n. v.

Anderson, 551 N.W.2d 621, 642 (Iowa 1996). And while Mensen did raise the

issue before the Commission, his failure to raise it before the district court renders

his claim unpreserved. See Thomas A. Mayes & Anuradha Vaitheswaran, Error

Preservation in Civil Appeals in Iowa: Perspectives on Present Practice, 55 Drake

L.Rev. 39, 47 (2006) (noting how in administrative proceedings, claims must be

raised before the commission and district court to preserve error). Thus, this claim

is unpreserved.

2. Merits

Even if Mensen had preserved error, Mensen’s termination was not

arbitrary. Section 400.18 permits termination when the employee engages in “an

act . . . that is in contravention of law, city polices, or standard operating

procedures, or in the judgment of . . . the chief of police . . . is unsuitable or unfit

for employment.” Mensen concedes his conduct violated both the law and the

policies of the Cedar Rapids Police Department. He claims that mitigating factors,

including the trauma he experienced prior to his arrest, mental illness, and

relatively strong work history, weigh against termination but were not considered

by Chief Jermen, which renders the decision arbitrary.
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The legislature did not define the terms in section 400.18, but we look to the

Department’s rules and code of conduct for guidance when determining whether

an employee committed misconduct. Lewis v. Civ. Serv. Comm’n. of Ames, 776

N.W.2d 859, 862 (Iowa 2010). We consider the existence of mitigating factors

when determining whether termination was proper. See Dolan v. Civ. Serv.

Comm’n. of City of Davenport, 634 N.W.2d 657, 664 (Iowa 2001). However, we

must also consider prior misconduct. Id. “[T]he primary objective of [the statute]

is to protect the public interest.” Id. “The image presented by police personnel to

the general public is ‘vitally important to the police mission.’” Civ. Serv. Comm’n

of Coralville v. Johnson, 653 N.W.2d 533, 538 (Iowa 2002) (citation omitted).

Accordingly, “police officers must earn and maintain the public trust at all times by

conducting themselves with good judgment and sound discretion.” Id. Further,

because police departments “are akin to paramilitary organizations . . . discipline

must be strictly enforced.” Id. (citation omitted).

Mensen’s conduct was detrimental to the public interest. Because of his

arrest, Mensen’s driver’s license was suspended for a year, limiting his ability to

engage in tasks necessary to the job. This violates the Department’s Code of

Conduct, which requires officers to “maintain sufficient competency to properly

perform their duties and assume the responsibilities of their position.” Further, the

job description for the position includes the ability to operate a motor vehicle as a

requirement for the job. See Lewis, 776 N.W.2d at 864 (finding an employee’s

failure to maintain a driver’s license due to an OWI arrest warranted termination

when maintaining such a license was a required for the position under city policy).

Moreover, police officers, as officials representing the police department and city,
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are held to a high standard of conduct. Mensen’s conduct, which occurred with

individuals who knew he was a police officer, reflected poorly on the Department.

And this is his second OWI. It is reasonable that the public’s trust in the

Department would be undermined given the knowledge that an officer did not

follow the laws he is mandated to enforce.

We also reject Mensen’s argument that the mitigating factors outlined by

him were not considered in Chief Jermen’s decision. The Commission does not

appear to contest that Mensen had a relatively clean record prior to his arrest, nor

that Mensen suffers from mental illness and alcohol-abuse disorder. However, the

existence of mitigating factors does not automatically render a decision arbitrary.

We highlight: “the determinative factor is whether [Mensen’s] conduct was

sufficiently detrimental to the public interest.” Dolan, 634 N.W.2d at 664 (emphasis

added). Given the necessity of maintaining the public’s trust in police officers, the

decision to terminate Mensen was not arbitrary.

AFFIRMED.