dissenting:
I respectfully dissent from the majority on their interpretation of Minn. Stat. § 383A.29, subd. 15. I agree with the district court that this statute limits the authority of the Ramsey County Civil Service Commission in a case like this where the commission finds the evidence warrants the employer’s action.
A commission may never exceed its specific grant of authority:
It should be recognized that a civil service commission exercises purely statutory power and must find within the statutes the authority to exercise the power it claims. A commission can exercise only such authority as is legally conferred, by express provisions of law or such as, by fair implication and intendment, is incident to and included in the authority expressly conferred for the purpose of carrying out and accomplishing the objectives for which the commission was created. Any reasonable doubt as to the existence of any particular power in the commission should be resolved against the exercise of such authority.
Essling v. St. Louis County Civil Service Commission, 283 Minn. 425, 168 N.W.2d 663, 665 (1969) (cites omitted) (emphasis added).
The Ramsey County Civil Service Commission authority is accordingly limited by Minn.Stat. § 383A.29, subd. 15. I interpret this statute as diagramed.
*553After the hearing the commission may,
IF it considers the evidence to so warrant, affirm the action of the appointing officer,
OR
IF the commission determines the action of the appointing officer to be without just cause,
order the reinstatement of the employee,
or
the commission may, in its judgment, reduce the punishment sought to be applied by the appointing officer to a reduction or suspension.
Id..
Following the hearing to review Davila’s discharge, the commission found that (1) employee had sexually harassed subordinate employees on numerous occasions, (2) employee’s conduct “violated specific provisions of the Civil Service Rules which constitute cause for discharge,” (3) employee had sufficient opportunity to know and should have known that his behavior was in violation of the rules and constituted sexual harassment generally, and (4) his record of long service, his age and personal health do not mitigate the proved charges against him.
Since the commission found the evidence warranted Davila’s discharge, Minn.Stat. § 383A.29, subd. 15(a), limited the commission’s authority to “affirming] the action of the appointing officer.” See id.
Only if the commission found the county’s action (discharging Davila), was without just cause (no breach of rules justifying discharge), could the commission order reinstatement or reduce the punishment. An example where the commission could reduce punishment would be where the commission found a discharged employee had engaged in misconduct which did not justify discharge under civil service rules. Here, Davila’s conduct was found to have constituted such just cause for discharge. Therefore, the county should not be forced to re-instate him.
If Minn.Stat. § 383A.29, subd. 15(a) is read as to allow the commission to re-fashion a remedy in any case, the first proviso of the statute would be rendered meaningless. Minn.Stat. § 645.17 (1984), governing the construction of statutes states: “Provisos shall be construed to limit rather than to extend the operation of the clauses to which they refer.” Also “the legislature intends the entire statute to be effective and certain.” Minn.Stat. § 645.17(2) (1984).
The fact that employee’s right of appeal is derived from the Veteran’s Preference Statute does not imply remedies should be re-fashioned by a reviewing commission. In certain counties or cities a commission may have this authority because the local governing body granted it such authority. See City of Minneapolis by Johnson v. Singer, 253 N.W.2d 150 (Minn.1977) (Minneapolis City Charter grants commission authority to re-fashion remedy); Leininger v. City of Bloomington, 299 N.W.2d 723 (Minn.1980) (Bloomington Merit Board had specific authority to fashion remedies therefore review of veteran’s discharge not restricted to affirming or reversing city’s action).
CONCLUSION:
I would affirm the district court order.