Frustrations from former Davenport Fire Chief Lynn Washburn's civil service appeal hearing have carried over into legal briefs filed Wednesday by the city's legal department.
Washburn filed notice of appeal of her discharge on Aug. 9 to the Civil Service Commission, which began the proceedings on Sept. 13 to determine whether it had the right to hear the appeal. The commission held off making a decision and asked for more information, including the preparation of legal briefs within two weeks of the hearing.
Both during and after the hearing, the city's legal counsel, Assistant City Attorney Brian Heyer and City Attorney Tom Warner, became agitated by comments made by Washburn's attorney, Michael Carroll, and the commission.
In the contents of the brief prepared by Heyer, those frustrations manifested themselves again as he called the arguments and claims heard during the Sept. 13 meeting "perplexing and nonsensical."
The Civil Service Commission was tasked with determining whether it was the right venue to hear an appeal after Washburn was terminated by City Administrator Corri Spiegel on July 27.
Washburn had been placed on administrative leave earlier that week but notified Spiegel she could not attend a predisciplinary meeting on what became the official date of her termination because of travel that was previously approved.
In a memorandum from Spiegel placed in Washburn's personnel file, Spiegel wrote that "during my tenure, due to actions on her part including but not limited to those of today and the past several days, she demonstrated that she is unsuitable or unfit for continued employment."
The crux of the appeal is whether Washburn has any civil service rights after she was hired from the Rockford (Illinois) Fire Department, where she spent 29 years.
Civil service is the system that provides the framework to hire and promote public employees and is determined through experience and passing exams.
In both the Sept. 13 meeting and the brief, Heyer said the language in Iowa Code 400.13 and 400.14 is unambiguous and clearly shows that Washburn did not have any civil service rights within the Davenport Fire Department.
Heyer cited a 1978 court case, LaPeters v. Cedar Rapids that ruled that the termination of Police Chief Wallace LaPeters was proper given he did not have any civil service status.
When Commissioner DeShonda Davis-Locke asked for more time during the first hearing, Heyer's voice elevated as he began talking over her.
"To look into more, meaning what?" Heyer asked. "Which is why you have to read the both sections together to make sense. 400.14 clearly says 'nothing herein shall be deemed to extend to such individual any civil service right upon which the individual may retain the position.'"
While Heyer reiterated the city's position in his brief, he also took shots at Carroll and his remarks during the Sept. 13 meeting.
"It was perplexing listening to Washburn-Livingston's attorney's nonsensical remarks in arguing her position on her behalf during the September 13th meeting of the Davenport Civil Service Commission on this jurisdictional issue," Heyer wrote.
During the first hearing, Carroll said Washburn asked for and was denied documentation from the city about her rights. Following the first hearing, the normally soft-spoken Warner walked out of council chambers with Carroll before beginning what was an animated conversation about his comments outside the clear double doors.
"Perplexing and nonsensical because, he had presumably met with Washburn-Livingston, his client, discussed the issues with her, and thereafter performed research, if necessary, prior to offering his commentary," Heyer wrote. "As an attorney he should know that the city's attorneys cannot ethically communicate with Washburn-Livingston once they have knowledge that she is represented by an attorney. Thus, his criticism of the city's attorneys for not communicating with his client was uncalled for and puzzling."
In his legal brief, Carroll argued that Washburn was terminated pursuant of Iowa Code Chapter 400, not 372.15 as the city claims.
Referencing the LaPeters case, Carroll wrote that nothing "suggests that the Chief loses civil service rights other than the right to have a hearing with the Civil Service Commission regarding her right to reappointment under Section 400.13."
It was under that belief he stated the city can place Washburn in a position commensurate with her service status.
Carroll also stated that Washburn filed the appeal because she as not provided anything in writing explaining the city's decision or her rights.
Under Iowa Code 372.15, removal of appointees must be provided in written order.
Carroll also referenced his comments regarding the lack of communication from the city's legal department and accepted their explanation of not communicating with someone they believed to be represented by legal counsel.
He did, however, disagree with the tone and demeanor of the city's attorneys in handling the appeal.
"Having said that, the tone of the Assistant City Attorney’s arguments at the last meeting of the Civil Service Commission and in his written arguments referring to my remarks as 'nonsensical' among other things, are beneath a city as great as the city of Davenport."
The Civil Service Commission will take up Washburn's appeal next month.