Opinion
No. 2-393 / 01-1479.
Filed December 30, 2002.
Appeal from the Iowa District Court for Polk County, ROBERT A. HUTCHISON, Judge.
Mark Davenport appeals the district court's order affirming on judicial review the Iowa Law Enforcement Academy's denial of his request that the State of Iowa certify him as a law enforcement officer despite his failure to meet all minimum physical fitness standards required for officer certification. AFFIRMED.
Joseph A. Nugent, West Des Moines, for appellant.
Thomas J. Miller, Attorney General, and John R. Lundquist, Assistant Attorney General, for appellee.
Heard by VOGEL, P.J., and ZIMMER and HECHT, JJ.
Mark Davenport appeals the district court's order affirming on judicial review the Iowa Law Enforcement Academy's denial of his request that the State of Iowa certify him as a law enforcement officer despite his failure to meet all minimum physical fitness standards required for officer certification. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS. Mark Davenport entered the Iowa Law Enforcement Academy (ILEA) certification training in January 1998. One of the requirements for certification is the completion of a 1.5 mile run at or above the fiftieth percentile for the candidate's age and sex, as determined by the Cooper Institute of Aerobics Research. While attempting to complete the 1.5 mile run, Davenport injured his ankle and did not complete the run within the prescribed time. Davenport was allowed to participate in the graduation ceremony but did not receive his certification. He requested and received a 180-day extension in which to complete the 1.5 mile run satisfactorily. Davenport did not complete the 1.5 mile run within the extended time period.
In April 1999, Davenport requested that the ILEA certify him without the satisfactory completion of the 1.5 mile run. After a contested case hearing before the ILEA Council, the ILEA denied Davenport's request. This hearing was tape recorded, but certain portions of the recording are inaudible and one portion was inadvertently taped over.
In its decision not to grant Davenport certification, the Council determined that it did not have statutory authority to grant a waiver of the completion of the 1.5 mile run at or above the fiftieth percentile. Because Davenport had never completed the run in the prescribed time, the Council reasoned it could not certify him.
Davenport filed a petition with the district court seeking judicial review of the ILEA Council's decision. The ILEA transmitted the certified agency record to the district court. Davenport objected to the transcript, arguing that he was unable to prepare his brief due to the high number of inaudible words in the transcript. With the encouragement of the district court, Davenport proposed changes to the transcript. The ILEA reviewed and accepted all of the changes and filed an amended hearing transcript with the district court. Davenport, however, continued to be dissatisfied with the state of the record. After a hearing on the matter, the district court determined that the transcript, as amended, was sufficient to address the issues raised on the petition for judicial review.
On August 15, 2001, the district court denied Davenport's petition for judicial review and affirmed the ILEA Council's denial of Davenport's certification as a law enforcement officer. On August 28, the district court denied Davenport's motion to reconsider. Davenport appeals, alleging several errors: (1) the transcript, even as amended, is insufficient to permit full and fair appellate review; (2) the ILEA Council and the district court incorrectly concluded the Council had no authority to grant a waiver of the physical fitness requirements for certification; and (3) Davenport was denied equal protection of the law by the application of the physical fitness standards to his performance.
II. Standard of Review. We review the denial of a petition for judicial review and an agency decision for correction of errors at law. Sahu v. Iowa Bd. of Medical Exam'rs, 537 N.W.2d 674, 676 (Iowa 1995). We shall "apply agency findings broadly and liberally to uphold, rather than to defeat, an agency's decision." Organic Techologies Corp. v. State ex rel. Iowa Dep't of Natural Resources, 609 N.W.2d 809, 815 (Iowa 2000). We must uphold the findings of the agency if those findings are supported by substantial evidence in the record and are based upon a correct application of the relevant law. George A. Hormel Co. v. Jordon, 569 N.W.2d 148, 151 (Iowa 1997). We review constitutional claims de novo. Santi v. Santi, 633 N.W.2d 312, 316 (Iowa 2001).
III. The sufficiency of the record. Davenport argues that the transcript made of the proceedings before the ILEA Council is not sufficient to allow his new attorney to adequately represent him in his appeal of the agency action. Davenport relies on Hardy v. United States, 375 U.S. 277, 282, 84 S.Ct. 424, 428 11 L.Ed.2d 331, 335-36 (1964), United States v. Selva, 559 F.2d 1303, 1306 (5th Cir. 1977), and In re T.V., 563 N.W.2d 612, 614 (Iowa 1997) for the proposition that without a complete transcript, Davenport is automatically entitled to a new hearing before the ILEA Council. We, however, do not find that these opinions establish a per se rule. While these cases certainly emphasize the importance of a complete record for adequate appellate representation, they stop short of requiring such a mechanistic approach to incomplete records. "Unavailability of a transcript does not automatically entitle an appellant to a reversal. The entire transcript is not required if the record is sufficiently complete to permit full and fair appellate review." T.V., 563 N.W.2d at 614 (citing State v. McFarland, 287 N.W.2d 162, 163 (Iowa 1980)). Rather, these cases require the appellate court to be able to "conclude affirmatively that no substantial rights of the appellant have been adversely effected (sic) by the omissions from the transcript." Selva, 559 F.2d at 1306.
In this case, we find no substantial prejudice to Davenport despite the gaps in the transcript. Davenport contends the missing testimony is the "most essential testimony in the entire hearing," because it deprives the appellate court of the ability to discern "what criteria the Council is using to grant a waiver to one trainee and not to another." He claims the incomplete record prevented him from establishing that two prior ILEA candidates were granted waivers or were excused from the ILEA requirement that they complete the 1.5 mile run within the time standards set by the agency. However, we find that the record is sufficient to establish the facts surrounding these two cases. One candidate, Linda Kruschke was granted an extension of time and an additional opportunity to complete the 1.5 mile run. The other candidate, Grant Goodman, was allowed to use the times from his practice runs to demonstrate his ability to complete the run within the allotted time. The agency's decision includes conclusions with regard to these two prior instances of "waiver," and Davenport makes no allegation that the conclusions are not sufficiently supported by facts in the record. Under the circumstances, we find no error in the district court's conclusion that the record is sufficient to permit appellate review.
IV. The ILEA Council's authority to waive fitness requirements.
The ILEA Council concluded that it did not have the authority to waive a physical fitness requirement. At the time of Davenport's hearing in this case, the ILEA Council had no provision in its administrative rules to waive the minimum physical fitness standards adopted by the ILEA. The enabling statute also neither compels nor authorizes the Council to waive its fitness standards. The district court reached the same conclusion based on the decision in Hollinrake v. Iowa Law Enforcement Academy, 452 N.W.2d 598, 603 (Iowa 1990). We find no error with the district court's decision in this regard. The ILEA Council was clearly under no statutory directive to provide waivers. See Iowa Admin. Code r. 501-2.1; Hollinrake, 452 N.W.2d at 603. Although Davenport asserts the Council has granted waivers in two other instances, the Council determined these cases were not waivers of the physical fitness requirements. One was granted an extension of time and an additional opportunity to attempt the run and the other was able to use his practice run times to demonstrate his ability to meet the requirement. Both of those candidates completed, at some time, the 1.5 mile run within the prescribed time limit. Davenport, however, never did complete the run in the allotted time. Even if the accommodations granted to candidates Kruschke and Goodman could be construed as waivers, "the fact that other officers might have been certified in violation of the agency rule does not provide a sound basis for certifying this applicant in view of the fact that he did not meet the requirements of the rule." Hollinrake, 452 N.W.2d at 603.
The ILEA has since adopted a waiver rule, although physical fitness standards are specifically exempted from waiver.
Davenport was also granted an extension of time in which to complete the run successfully. He did not attempt, nor complete, the run in that extended period of time.
V. Equal Protection. Davenport's third assignment of error apparently asserts an equal protection argument. He claims the ILEA Council is acting arbitrarily and capriciously by applying the physical fitness standards in a way that adversely affects his equal protection rights and his ability to become certified. Because Davenport cites no authority for this proposition, we deem this argument waived. Iowa R.App.P. 6.14(1)(c).
VI. Conclusion. The record, although incomplete, is sufficient to permit appellate review of this case. We find no error with the agency's, nor the district court's, conclusion that the ILEA Council was not compelled to provide for waiver of physical fitness requirements when certifying a law enforcement officer. Davenport's equal protection argument is waived.