#27784-a-JMK
2016 S.D. 82
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
MARK BLACK, Appellant,
v.
DIVISION OF CRIMINAL
INVESTIGATION, Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
HUGHES COUNTY, SOUTH DAKOTA
****
THE HONORABLE JOHN L. BROWN
Judge
****
TIMOTHY R. WHALEN
Lake Andes, South Dakota Attorney for appellant.
ROBERT B. ANDERSON of
May, Adam, Gerdes & Thompson, LLP
Pierre, South Dakota Attorneys for appellee.
****
ARGUED OCTOBER 3, 2016
OPINION FILED 11/22/16
#27784
KERN, Justice
[¶1.] The South Dakota Division of Criminal Investigation (DCI) hired Mark
Black as an agent in 2005. Black entered DCI as a veteran law-enforcement officer
and quickly distinguished himself as an excellent investigator. However, DCI
terminated Black’s employment after a series of incidents and disciplinary actions.
Black exhausted each level of administrative review, including a hearing with the
Civil Service Commission (CSC), which found just cause for his termination. Black
appealed that decision to the circuit court, which affirmed. Black appeals. We
affirm.
BACKGROUND
[¶2.] DCI hired Black as an agent on August 5, 2005. He entered DCI as an
experienced law-enforcement officer and quickly became one of DCI’s top five
agents. Black was the first to receive the newly created Distinguished Service
Award in 2009. His success and excellent performance evaluations, however, were
accompanied by accounts of emotional instability and lapses in judgment. In his
first year on the job, for example, he received high praise on a September 7, 2006
performance evaluation. But the evaluation also said Black needed “to continue to
remind himself to maintain his composure and not allow his emotions to take over.”
Black’s evaluations contained similar warnings for the next several years, including
one report in 2008 that stated: “Mark on occasion makes poor decisions with
regards to his relationship with others. Mark had at times a very difficult 6 month
period and became frustrated and disappointed. This became an issue when he sent
a resignation email to all agents in the DCI and to the Attorney General.” The
-1-
#27784
email incident resulted in a two-day suspension, enrollment in a sixty-day work-
improvement plan and counseling. Black successfully completed these programs.
[¶3.] Problems also arose outside of work. On September 13, 2013, Black
commented on the Keloland blog about a SWAT training event. Because his
Facebook page showed he was a DCI agent, Black’s comment on the Keloland blog
appeared to have been made on behalf of DCI. Black commented: “This story is an
excellent example of a waste of time by the media. This ‘mother’ would rather
whine to get her face on camera than be a parent and explain to her child, it is the
people that protect us practicing to keep us safe from bad guys.” DCI disciplined
Black with a one-day suspension. Black also made a tape recording in the Brown
County courthouse in Aberdeen, portions of which were transcribed by a third party
and posted online as a YouTube video. The recording featured a conversation
between Black and another DCI agent about an ongoing investigation while they
were waiting to question an individual. Black used foul language and made
inappropriate statements.
[¶4.] In 2013, Black went through a contentious divorce with his now ex-
wife, Patty Black. In June 2013, he spray painted the phrase “Patty wins” on the
boat they jointly owned. The boat was parked in front of the marital home. Black
and Patty finalized their divorce in August 2013.
[¶5.] On February 13, 2014, Patty filed a petition for an ex parte temporary
protection order against Black. Patty attached to her petition a handwritten letter
from Black containing the following passages:
-2-
#27784
As for my temper, rage, and razor tongue, I finally figured out
how bad I hurt everyone around me. Especially you. I said
numerous hateful things . . . .
I know you feel like a victim . . . .
Yes babe I know I punched walls and doors, broke dishes,
pictures.
....
I pushed and shoved you as well for that I am sorry too. A[n]
honest reflection is that we both mistreated each other . . . .
The court issued an ex parte temporary order of protection against Black. In light
of the allegations in the letter, DCI required Black to surrender his service weapon.
That same day, Black’s supervisor, Brian Zeeb, began an investigation and placed
Black on administrative leave. Because of the allegations of domestic abuse and
further examples of Black’s lack of emotional control and poor judgment, Zeeb sent
a letter to Black on February 21, 2014. The letter informed Black that DCI
intended to terminate his employment. The petition for a protection order was
eventually dismissed.
[¶6.] In his letter Zeeb listed violations of the Administrative Rules of South
Dakota (ARSD) 55:10:07:04(26) and DCI personnel policy manual rule (DCI Policy)
7.0101 as just cause for Black’s termination. DCI gave Black the opportunity to be
heard, and Black wrote a lengthy letter in response. Zeeb conducted an
investigation that included review of documents at the Brown County courthouse,
audio recordings, and text messages. At Zeeb’s request, the North Dakota Bureau
of Criminal Investigation conducted a separate investigation. Zeeb stood by his
initial decision and on March 14, 2014, sent Black a letter outlining the factual and
legal basis for the termination.
-3-
#27784
[¶7.] Black appealed Zeeb’s decision to DCI Director Bryan Gortmaker.
Director Gortmaker investigated and reconsidered Black’s termination. He
discovered a text message that he believed also warranted Black’s termination.
Black sent his wife a text on May 17, 2013, stating: “Not after I take the stand and
admit to adultery. I told you I’ll give you what u want. [By the way] I broke up
w/Lynda.” Lynda was Black’s girlfriend at the time and now his spouse. Director
Gortmaker had previously asked Black if he committed adultery, to which Black
said no. He concluded that Black either lied to him or lied to his ex-wife. Either
way, Director Gortmaker believed Black violated DCI Policy 7.0103, requiring
“integrity” of agents, and 7.0101, prohibiting “unbecoming conduct” of an agent.
Black would later testify that he did not lie to Director Gortmaker and that he took
the text out of context. Nonetheless, Director Gortmaker affirmed Zeeb’s decision.
Black then appealed to Attorney General Marty Jackley who investigated and also
affirmed Zeeb’s decision.
[¶8.] Black appealed the decision to CSC and requested a hearing. CSC
held the hearing on September 16, 2014. DCI presented four witnesses: Zeeb, DCI
Supervisory Agent Jason Even, DCI Assistant Director Dan Satterlee, and Director
Gortmaker. All of DCI’s witnesses were Black’s superiors. Zeeb worked directly
with Black between 2005 and 2011. Even was Black’s direct regional supervisor.
Satterlee served with DCI for 20 years and knew and worked with Black for many
years. Director Gortmaker served with DCI for twenty-five years, including six as
DCI Director and was familiar with Black’s work and struggles.
-4-
#27784
[¶9.] DCI offered exhibits and testimony including Black’s performance
evaluations, remarks on his capricious temperament and poor judgment, his
comments on the Keloland blog, his handwritten letter to Patty, and many
instances of erratic conduct. All of DCI’s witnesses agreed that although Black was
a skilled agent, he was emotionally unstable, which impaired his ability to exercise
good judgment, a crucial attribute for DCI agents. Despite repeated attempts to
help Black control his emotions and make good decisions, it became clear to Black’s
supervisors that he could not or would not effectively manage his anger. To assist
Black, DCI used work-improvement plans, warnings, and administrative
measures—all of which were ineffective in curtailing his behavior. DCI was
especially concerned that Black’s reputation was impaired, by the admissions in his
handwritten letter of domestic violence, to the extent that he could not credibly
investigate other law enforcement officers charged with similar misconduct.
[¶10.] In his defense, Black testified and presented six witnesses: McPherson
County Sheriff Dave Ackerman, Brown County Sheriff Mark Milbrandt, Day
County Sheriff Barry Hillstead, Marshall County Sheriff Dale Elsen, DCI Agent
Dave Lunzman, and Lynda Black. Black described himself as a passionate and
“emotional guy” and admitted to certain lapses in judgment. He claimed that Patty
attempted to sabotage his career by spreading details of their divorce while
continually harassing Black and Lynda. Black also introduced into evidence
numerous certificates of commendation. With the exception of his wife, Black’s
witnesses were all law enforcement officers who worked with Black during his years
with DCI. They all testified positively about his character and his exceptional
-5-
#27784
abilities as a DCI agent. Lynda testified about Patty’s harassment and threats to
destroy Black’s career.
[¶11.] CSC issued extensive findings of facts and conclusions of law. CSC
found that Black’s behavior throughout his employment with DCI revealed an
inability to deal with stressful situations and control his emotional reactions. Black
displayed frustration, anger, and vindictiveness on repeated occasions, causing
alarm in and outside of DCI. DCI repeatedly notified Black of their concerns over
his misbehavior and attempted to work with him to improve his conduct. During
the course of events concerning Black that became public, various law enforcement
officers and agencies contacted Even and inquired about what was happening.
There were also articles concerning Black in the Aberdeen newspaper and on the
Internet that affected public knowledge and confidence in DCI. The role of DCI is
unique; they “police the police.” CSC concluded there was just cause to terminate
Black’s employment as his conduct both on and off duty adversely affected the
morale and efficiency of DCI and diminished public confidence.
[¶12.] Black appealed CSC’s decision to the circuit court. The circuit court
heard oral argument on January 6, 2016, and on February 1, 2016, issued an
incorporated memorandum holding that DCI had just cause to terminate Black’s
employment and that he received due process of law. The circuit court also affirmed
CSC’s holdings regarding the specific grounds for Black’s termination, namely,
violations of ARSD 55:10:07:04(26) and DCI Policy 7.0101. Black appeals, raising
the following issues:
1. Whether CSC erred in finding DCI had just cause to
terminate Black’s employment.
-6-
#27784
2. Whether Black received due process of law.
STANDARD OF REVIEW
[¶13.] “Our review of agency decisions is the same as the review made by the
circuit court.” In re Jarman, 2015 S.D. 8, ¶ 8, 860 N.W.2d 1, 5. We “give great
weight to the findings made and inferences drawn by an agency on questions of
fact.” SDCL 1-26-36. We may reverse or modify an agency’s findings if they are
“[c]learly erroneous in light of the entire evidence in the record[.]” Id. Our review
under the clearly erroneous standard is highly deferential, and we reverse only if
review of the entire record has left us “with a definite and firm conviction that a
mistake has been committed.” Osman v. Karlen & Assocs., 2008 S.D. 16, ¶ 15,
746 N.W.2d 437, 443 (quoting Fin-Ag, Inc. v. Feldman Bros., 2007 S.D. 105, ¶ 19,
740 N.W.2d 857, 863).
ANALYSIS
[¶14.] 1. Whether CSC erred in finding DCI had just cause to
terminate Black’s employment.
[¶15.] Black makes several arguments challenging CSC’s finding that DCI
had just cause to terminate his employment. CSC’s finding of just cause is based on
violations of ARSD 55:10:07:04(26) and DCI Policy 7.0101. Black also claims that
Director Gortmaker improperly added a violation of DCI Policy 7.0103 as grounds
for his termination and challenges some of CSC’s other factual findings as clearly
erroneous.
-7-
#27784
ARSD 55:10:07:04(26)
[¶16.] Black first challenges CSC’s determination that Black violated
ARSD 55:10:07:04(26). Black claims that DCI failed to meet its evidentiary burden
because it did not present witnesses from the general public to prove that Black’s
conduct spoiled their image of and confidence in DCI. Black argues DCI instead
presented testimony of its own employees, which was insufficient to prove harm to
public trust in the State. In response, DCI contends that the personal knowledge of
its four law enforcement officers combined with Black’s history of public acts was
adequate to support CSC’s determination.
[¶17.] ARSD 55:10:07:04 lists the grounds for disciplinary action for “just
causes,” including conduct “within or outside the scope of employment.” Section (26)
provides for termination if “[t]he employee has engaged in conduct either prior to or
during employment with the State that reflects unfavorably on the State, destroys
confidence in the operation of State services, or adversely affects the public trust in
the State.”
[¶18.] We reject Black’s argument that testimony or evidence from the
general public is necessary for a determination of just cause under
ARSD 55:10:07:04(26). Black suggests that polling data or testimony from the
public at large is required. But this is an overly rigid manner of assessing harm to
the State’s reputation. Such a requirement would be unworkable. For example,
who should be polled or called to testify about their views of DCI? Where would
these witnesses need to reside? What sample size would DCI need to produce to
-8-
#27784
meet its burden of proof? Black cites no authority for his proposed rule or specifics
for its implementation.
[¶19.] DCI offered the testimony of four high-ranking DCI employees. These
witnesses had substantial experience observing and working with DCI agents, other
law-enforcement agencies, and the public. They were charged with the duty of
managing DCI and maintaining the public’s trust and confidence in the agency.
They supervised and worked with Black during his entire career with DCI and had
personal knowledge of many of the events in question. Their opinions regarding his
performance are corroborated by an ample record detailing the conduct that raised
serious questions about his judgment and self-control. Of particular note, at least
two of Black’s actions were apparent to the general public as they transpired
through the Internet—the Keloland blog comment and the tape recording from the
Brown County courthouse posted on YouTube. We cannot say that CSC was clearly
erroneous in finding that Black violated ARSD 55:10:07:04(26).
A. DCI Policy 7.0101
[¶20.] DCI Policy 7.0101 prohibits “unbecoming conduct,” providing that:
Agents shall conduct themselves on and off duty in a manner
that reflects favorably on the Division. Conduct unbecoming to
an agent means conduct contrary to professional standards that
show an unfitness to discharge duties or conduct which
adversely affects morale or efficiency of the Division or
diminished public confidence.
CSC found Black failed to conduct himself in a manner that “reflected favorably on
the DCI.” Additionally, CSC concluded that his behavior “both on and off duty
adversely affected the morale and efficiency of the DCI and diminished public
confidence.” In support of these findings, CSC determined that the conduct
-9-
#27784
identified in Zeeb’s termination letter and supplemental notice of termination was
supported by credible evidence. Black argues that DCI did not prove he violated
either prong of DCI Policy 7.0101.
a. “Conduct Contrary to Professional Standards”
[¶21.] Black’s principle argument is that “DCI was required to produce an
independent expert witness who is qualified in the professional standards for law
enforcement officers to establish the standard of conduct which is to be applicable to
Black.” This is necessary in Black’s view because the definition of “conduct
unbecoming of an officer” is “evasive, overly-broad, and wide reaching.”
[¶22.] In response, DCI asserts that CSC’s findings were not clearly
erroneous and are fully supported by the record. DCI submits that the record is
replete with evidence of unbecoming conduct, ranging from allegations of domestic
abuse and emotional outbursts to severe and chronic lapses in judgment.
[¶23.] We agree with DCI. There is no rule that requires expert testimony.
Expert testimony is admissible where it “will help the trier of fact to understand the
evidence or to determine a fact in issue[.]” SDCL 19-19-702. But “[t]o be helpful, of
course, expert opinion must offer more than something jurors can infer for
themselves.” State v. Guthrie, 2001 S.D. 61, ¶ 32, 627 N.W.2d 401, 415. An expert
is not required to help the trier of fact decide whether an officer with a long history
of emotional instability has shown conduct contrary to professional standards.
[¶24.] DCI presented four experienced witnesses who testified about Black’s
chronic misbehavior. We give great deference to the findings made by CSC because
like a circuit court, CSC had the unique advantage of observing the witnesses and
-10-
#27784
judging their credibility in person. See Hubbard v. City of Pierre, 2010 S.D. 55,
¶ 26, 784 N.W.2d 499, 511 (“[T]he credibility of the witnesses, the import to be
accorded their testimony, and the weight of the evidence must be determined by the
trial court, and we give due regard to the trial court’s opportunity to observe the
witnesses and examine the evidence.” (quoting Baun v. Estate of Kramlich,
2003 SD. 89, ¶ 21, 667 N.W.2d 672, 677)). Further, the mere fact that DCI’s
witnesses were DCI’s employees does not invalidate their testimony. See Donat v.
Johnson, 2015 S.D. 16, ¶ 17, 862 N.W.2d 122, 128 (holding that the potential for
bias goes to weight of a witness’s testimony, not admissibility). The testimony was
bolstered by numerous exhibits verifying Black’s conduct. Lastly, Black’s repeated
assertion that he was an effective DCI agent is irrelevant. It is undisputed that
Black was an effective agent. CSC found, however, that his conduct was
unprofessional and showed a lack of fitness to discharge his duties. This
determination is not clearly erroneous.
b. “Conduct Which Adversely Affects Morale or Efficiency”
[¶25.] Black argues CSC’s finding that his conduct adversely affected the
morale or efficiency of DCI or diminished public confidence is clearly erroneous.
The heart of his assertion is that DCI only showed that Black’s superiors were sick
of hearing his name, not that the public or DCI employees suffered from diminished
morale or efficiency as a result of Black’s behavior.
[¶26.] Many of Black’s missteps were highly visible. Black’s comment on the
Keloland blog was accessible to the entire world. Black’s tape recording from the
Brown County courthouse was published on the Internet. Black’s spray paint
-11-
#27784
incident occurred in front of an entire neighborhood. Black’s performance
evaluations contained comments noting his sometimes poor relationships with
others. Black sent out a resignation email to all DCI agents, as well as the Attorney
General. Articles about Black appeared in the Aberdeen newspaper and on the
Internet. Black has not contested the veracity of any of these instances of visible
misconduct. Based on Black’s extensive history of public misconduct and the
testimony of DCI’s witnesses, we cannot say that CSC’s finding of fact on this
matter is clearly erroneous.
[¶27.] Finally, Black raises two additional arguments. First, he claims that
Director Gortmaker inappropriately added DCI Policy 7.0103 as another basis for
his termination with reference to the alleged lie about his relationship with Lynda.
Director Gortmaker, however, merely cited this as another reason for finding
Black’s termination appropriate. Director Gortmaker’s only official action was to
affirm Zeeb’s decision. Second, Black challenges a number of specific factual
findings in his brief. After review of the record, we find CSC’s findings are
supported by the record.
[¶28.] 2. Whether Black received due process of law.
[¶29.] Black argues that DCI failed to follow applicable rules and regulations
when it terminated his employment, thereby denying him due process of law.
Specifically, Black alleges DCI did not give him notice that prior disciplinary
actions would be a basis for his termination. He further asserts that DCI fired him
before the protection-order issue was resolved, that DCI improperly considered past
conduct for which he had already been disciplined, and that Director Gortmaker
-12-
#27784
improperly added a ground for termination. DCI, on the other hand, argues it fully
complied with the requirements of due process and South Dakota law. DCI claims
it gave Black notice of its plan and multiple opportunities to be meaningfully heard.
[¶30.] Black could only be terminated for just cause and with due process of
law to protect his property rights in his job. See Hollander v. Douglas Cty.,
2000 S.D. 159, ¶¶ 14-17, 620 N.W.2d 181, 185-86 (explaining whether an employee
has a property right in continued employment and the due-process requirements
involved); ARSD 55:10:07:04. “Fundamentally, due process requires ‘notice and an
opportunity to be heard.’ These basic guarantees must be granted at a ‘meaningful
time and in a meaningful manner.’” Hollander, 2000 S.D. 159, ¶ 17, 620 N.W.2d
at 186 (citation omitted) (first quoting Wuest v. Winner Sch. Dist. 59-2, 2000 S.D.
42, ¶ 25, 607 N.W.2d 912, 918; then quoting Schrank v. Pennington Cty. Bd. of
Comm’rs, 1998 S.D. 108, ¶ 13, 584 N.W.2d 680, 682).
[¶31.] From our review of the record, it is apparent that Black received due
process of law. Zeeb sent his first letter to Black on February 13, 2014. This letter
placed Black on administrative leave in light of the content of Patty Black’s petition
for an ex parte protection order, which included a copy of Black’s handwritten letter.
Contrary to Black’s contention, Zeeb’s letter advised: “You will remain on
administrative leave without pay until this issue is resolved, or until further notice
from me.” Further notice arrived in a letter to Black from Zeeb on February 21,
2014. This letter informed Black that DCI intended to terminate his employment
and cited ARSD 55:10:07:04(26) and DCI Policy 7.0101 as grounds. It also
-13-
#27784
explained the factual and legal basis for its determination. Lastly, it informed
Black of his right to appeal and the relevant procedures.
[¶32.] Black wrote a letter to Zeeb on February 23, 2014, explaining his side
of the story. Zeeb reconsidered his decision and investigated the matter again. On
March 14, 2014, Zeeb sent Black a termination letter, fully explaining DCI’s
grounds to terminate his employment. This letter cited court documents, a report
by the North Dakota Bureau of Criminal Investigation, audio recordings of Black
and others, and text messages between Black and Patty. The letter explained the
consequences of Black’s chronic misbehavior and restated ARSD 55:10:07:04(26)
and DCI Policy 7.0101 as grounds for termination. It also notified Black of his right
to appeal Zeeb’s decision.
[¶33.] Black first appealed to Director Gortmaker, who affirmed Zeeb’s
decision. Then he appealed to the Attorney General, who also affirmed Zeeb’s
decision. Black then received a full hearing in front of CSC, presenting witnesses
and exhibits while represented by counsel. CSC found DCI had just cause to
terminate Black’s employment. Black next appealed CSC’s decision to the circuit
court. The circuit court affirmed CSC’s decision. Black received notice of all the
complaints against him and had multiple opportunities to be heard. Black has
proceeded through five levels of review. Nothing in the record suggests the due
process he received was inadequate. Further, contrary to Black’s assertion, DCI did
not deny Black’s rights by considering his history of misbehavior in addition to his
admissions of domestic violence. See Irvine v. City of Sioux Falls, 2006 S.D. 20, ¶¶
15-17, 711 N.W.2d 607, 611-12 (holding that there was just cause to terminate a
-14-
#27784
public employee who was good at his job but who had a long history of chronic
misbehavior and poor relationships with others).
CONCLUSION
[¶34.] CSC’s finding that DCI had just cause to terminate Black’s
employment was fully supported by the record and not clearly erroneous. DCI
complied with all rules and regulations and afforded Black due process of law. We
affirm.
[¶35.] GILBERTSON, Chief Justice, ZINTER and SEVERSON, Justices, and
MEIERHENRY, Retired Justice, concur.
[¶36.] MEIERHENRY, Retired Justice, sitting for WILBUR, Justice,
disqualified.
-15-