IN THE SUPREME COURT OF IOWA

No. 15–1131

Filed June 9, 2017

LARRY SHAWN WHITWER,

Appellee,

vs.

CIVIL SERVICE COMMISSION OF THE CITY OF SIOUX CITY, IOWA,

Appellant.

Appeal from the Iowa District Court for Woodbury County, 

Jeffrey A. Neary, Judge.

A civil service commission appeals a district court’s reinstatement 

of a civil service employee after he was terminated pursuant to a lastchance agreement. REVERSED.

Justin Vondrak, Assistant City Attorney, Sioux City, for appellant.

Jay E. Denne of Munger, Reinschmidt & Denne, LLP, Sioux City, 

for appellee.
2

MANSFIELD, Justice.

This case requires us to determine the enforceability of a so-called 

“last-chance agreement” entered into by a civil service employee. After a 

municipal firefighter pled guilty to domestic abuse assault, the 

municipality offered to discipline him with a short suspension instead of 

terminating his employment. However, in exchange, the municipality

insisted that the firefighter agree to give the municipality discretion to 

terminate him immediately and without appeal if he violated the law 

again or violated the related no-contact order. The firefighter accepted 

the municipality’s proposal and signed the written last-chance 

agreement.

Just over a year later, the firefighter violated the no-contact order 

related to the domestic abuse assault. When the city terminated his 

employment in reliance on the agreement, the firefighter attempted to 

appeal his termination to the civil service commission. The commission 

declined to hear his appeal. On judicial review, however, the district 

court reinstated the firefighter. The district court ruled that the lastchance agreement was not valid because the commission had not 

approved or reviewed it before the parties entered into it.

On appeal, we now reverse the district court. Consistent with the 

authority in other jurisdictions, we conclude that a civil service employee 

may enter into a valid last-chance agreement. Such an agreement, 

however, remains subject to principles of contract law, such as the duty 

of good faith and fair dealing. Accordingly, we do not decide whether a 

last-chance agreement can be used to terminate a civil service employee 

when there has been a significant lapse of time or the breach is de 

minimis or unrelated to the reason for the agreement.
3

I. Background Facts and Proceedings.

For over twenty years, Larry Whitwer served as a firefighter with 

the Sioux City Fire Department. In July 2012, Whitwer was arrested for 

an assault. He later pled guilty to domestic abuse assault in violation of 

Iowa Code section 708.2A(2)(a) (2013). At sentencing, the court granted

Whitwer a deferred judgment. The court also extended a previously 

entered no-contact order for five years. See id. § 664A.5. On September 

26, the day after Whitwer pled guilty, he was placed on administrative 

leave from the fire department, with pay, and a predisciplinary hearing 

was scheduled for October 5.

Before that hearing, Fire Chief Tom Everett spoke with Dan 

Cougill, a representative from the firefighters’ union, about the 

appropriate discipline for Whitwer’s actions. Although Whitwer could 

have been terminated, Everett and Cougill discussed the possibility of 

Whitwer signing a last-chance agreement. Under the agreement,

Whitwer would not be terminated because of the domestic abuse assault 

guilty plea and he would instead serve a short suspension. Whitwer

would agree, among other things, to abide by the no-contact order and 

consent to immediate termination if he violated that order. Whitwer 

would also be required to waive the right to appeal if he were later 

terminated under the last-chance agreement. In an email sent 

September 27, Chief Everett noted that he “spoke for some time [with 

Cougill] about . . . what exactly the last chance means.” Chief Everett 

and Cougill then separately discussed the proposed discipline and lastchance agreement with Whitwer’s personal attorney.

Meanwhile, Connie Anstey, an attorney for the City of Sioux City

(City), drafted the two-page document titled “Disciplinary Agreement” in 

anticipation of the hearing. The agreement provided that it would be a 
4

“complete resolution to the disciplinary action relating to incidents which 

took place on or about July 21, 2012.” The agreement then included 

several provisions that “Whitwer, the Sioux City Professional Fire 

Fighter’s Association, and the City of Sioux City agree to . . . in lieu of 

Mr. Whitwer’s immediate termination:”

1. The City agrees that the only disciplinary action 

which will be taken regarding the alleged misconduct . . . is 

contained in this agreement unless this agreement is 

breached by Mr. Whitwer. In the event of breach of this 

agreement by Mr. Whitwer, the City reserves the right to 

impose further disciplinary action up to and including 

immediate termination.

2. That Mr. Whitwer shall be subject to transfer at the 

sole discretion of the Fire Chief and shall receive a five (5) 

shift suspension from work without pay for violation of Sioux 

City Fire Rescue Rules and Regulations . . . .

. . . .

5. That Mr. Whitwer shall strictly abide by all court 

issued no contact orders in Woodbury County Case No. . . . , 

and shall not, either while on duty or off duty violate the 

court imposed no contact order in person, by telephone or 

through the use of third parties.

. . . .

7. That this agreement is a last chance agreement and 

as such, it is agreed that Mr. Whitwer may be terminated 

from his employment with the City without cause and 

without appeal rights under the labor agreement between the 

City and Union or under the provisions of the Iowa Civil 

Service laws at any time following the execution of this 

agreement. It is understood that Mr. Whitwer may be 

immediately terminated under this provision for any 

violation of the law (excluding simple misdemeanor traffic or 

parking tickets), violation of the no contact order, violation of 

Fire Department Rules and Regulations or the City 

Administrative Policies which may occur during this 

agreement.

8. The Union and Mr. Whitwer specifically waive all 

claims, disputes, appeals and grievances which have arisen 

or which may arise from the discipline given Mr. Whitwer 

pursuant to this Agreement.
5

Due to scheduling conflicts, the hearing was moved forward to 

October 1.1 On that day, Chief Everett, Anstey, and Bridey Hayes, 

director of human resources for the City, were in attendance on behalf of 

the City. Cougill and a second representative from the firefighters’ union 

were present, as was Whitwer. Whitwer’s personal attorney was not at 

the meeting, although neither Whitwer nor the union asked that the 

meeting be continued for that reason.

All parties understood that the purpose of the hearing was to 

review the last-chance agreement. After that review, Whitwer could

either sign the agreement or be terminated for the domestic abuse 

assault guilty plea. Chief Everett read aloud the entire agreement and 

asked Whitwer if he had any questions. Whitwer was given time to study

the document. The union representatives asked to discuss the 

agreement in private with Whitwer. City officials honored the request

and left the room. When they returned, Whitwer and the union 

representatives had several questions relating to the proposed shift 

suspensions. Chief Everett asked Whitwer if he had any other questions

about the agreement, and Whitwer replied that he did not. At that point, 

Whitwer, Chief Everett, and Cougill each signed five copies of the 

agreement. Whitwer then became emotional and apologized. Chief 

Everett responded to Whitwer, “[W]e really want you to be successful.”

For the next thirteen months, Whitwer continued to work as a 

firefighter without incident. However, in November 2013, police were 

dispatched on reports that Whitwer was texting and attempting to meet 

with and otherwise reach the victim in violation of the no-contact order. 

1The October 1 hearing was audio recorded and is a part of the record in this 

case.

 
6

Officers reviewed an actual text message, confirmed the no-contact order 

was still active, and arrested Whitwer. On November 18, Whitwer 

appeared before the district court and admitted to violating the nocontact order. The court found him in contempt and sentenced him to

two days in jail with credit for time served. A separate job-related 

hearing was held on November 22 and Whitwer was terminated from the 

Sioux City Fire Department for violating the last-chance agreement.

Whitwer appealed his termination to the Sioux City Civil Service 

Commission pursuant to chapter 400, which governs the rights of civil 

service employees. See id. § 400.18(1). However, the Commission 

declined to determine whether Whitwer was properly terminated because 

of the waiver-of-appeal provision in the last-chance agreement. Although 

Whitwer claimed that he was under duress and suffering from depression 

when he signed the agreement, the Commission determined it had no 

authority to hear the appeal.

Whitwer appealed the Commission’s decision to district court. See

id. § 400.27. At the district court hearing, several City employees 

testified regarding the City’s use of last-chance agreements. Bridey 

Hayes explained that the agreements are not prescribed in the City code 

or administrative regulations. Instead, the decision of whether to offer a

last-chance agreement is at the discretion of human resources, the City 

attorney’s office, and the relevant department head. Connie Anstey 

testified that when a last-chance agreement is appropriate, the City uses 

a form agreement which is then tailored to the circumstances involved. 

For instance, Anstey elaborated that if the last-chance agreement is 

based on criminal conduct, the agreement will require no further 

violations of the law. Anstey stated that the waiver-of-appeal provision is 

a “standard provision” in the form agreement. Anstey emphasized that 
7

the decision to offer a last-chance agreement depends on the 

circumstances of the misconduct, the disciplinary options available, and 

the employee’s work history. Finally, Anstey acknowledged that there 

was no end-date for the last-chance agreement in this case.

Chief Everett confirmed that if Whitwer had declined to sign the 

last-chance agreement on October 1, 2012, he would have been 

terminated at that meeting. Everett explained that public trust was 

extremely important to the fire department, and a violation of law “begins 

to chip away or erode that public trust and certainly speaks to integrity 

and decision-making.” Chief Everett also observed that last-chance 

agreements, when appropriate, are generally beneficial to the fire 

department because the department “put[s] a lot into these individuals,” 

and a last-chance agreement allows the employee to “see what they’ve 

done and make corrections moving forward so that they can continue to 

serve in a manner that’s . . . highly ethical.”

Following trial, the district court filed a written ruling reinstating 

Whitwer to his position with the Sioux City Fire Department. The court 

emphasized that offering a last-chance agreement is “entirely in the 

discretion of the city.” In the court’s view, using the agreement to 

terminate Whitwer “essentially circumvented the public policy which 

forms the basis for the establishment of a Civil Service Commission,” 

specifically, protection of civil service employees from arbitrary 

termination. The court continued,

The decision to offer a last chance agreement is just as 

central in this process as the decision to terminate the 

employee, and can be just as easily abused or manipulated. 

It is precisely this discretion that should be subject to review 

by the Defendant Commission and approval or denial based 

upon their role as a neutral evaluator of the facts in each 

case.
8

Therefore, the court found,

[The] Commission must be permitted to make such a 

determination prior to the offering of a last chance 

agreement or it must be permitted to approve a last chance 

agreement in order to perform one of its essential purposes. 

If Defendant Commission is not allowed to do so, the intent 

of the legislature in passing the civil service commission 

legislation would be defeated. Civil service legislation was 

designed to assure that municipal employees were being 

employed and retained based on their skills and 

qualifications, and not due to any prohibited ground for 

consideration, such as favoritism or nepotism. As applied to 

the facts here, the Commission must be allowed to verify 

that no employee is subjected to arbitrary termination, 

regardless of the device used to terminate or continue 

employment.

(Citation omitted.)

The Commission appealed, and we retained the appeal.

II. Standard of Review.

Our review of the district court’s decision is de novo. Lewis v. Civil 

Serv. Comm’n, 776 N.W.2d 859, 861 (Iowa 2010). “Although we give 

weight to the findings of the district court, we are not bound by them.” 

Dolan v. Civil Serv. Comm’n, 634 N.W.2d 657, 662 (Iowa 2001). Further, 

“[w]e confine our review to the record made in the district court.” Id. 

Thus, “we do not receive new evidence” and “we limit our review to the 

same issues that were raised in the district court.” Id.

III. Analysis.

A. Validity of Last-Chance Agreements. Civil service employees 

are entitled to a variety of rights arising under Iowa Code chapter 400, 

including the right not to be arbitrarily discharged and the right to seek 

review of a discharge. See City of Des Moines v. Civil Serv. Comm’n, 540 

N.W.2d 52, 56 (Iowa 1995). In this case, we are asked whether a civil 

service employee may prospectively waive those rights through a lastchance agreement that avoids termination proceedings.
9

We begin with a review of the relevant statutes.2 Iowa Code section 

400.18 establishes that a civil service employee

shall not be removed, demoted, or suspended arbitrarily, 

except as otherwise provided in this chapter, but may be 

removed, demoted, or suspended after a hearing by a 

majority vote of the civil service commission, for neglect of 

duty, disobedience, misconduct, or failure to properly 

perform the person’s duties.

Iowa Code § 400.18(1); cf. id. § 400.19 (allowing the “chief of the fire 

department [to] peremptorily suspend, demote, or discharge a 

subordinate” for the same grounds). Section 400.20 specifies that any 

such discipline “may be appealed to the civil service commission within 

fourteen calendar days after the suspension, demotion, or discharge.” Id.

§ 400.20. At the hearing before the commission, the employee has the 

right to be represented by counsel or a union representative, id.

§ 400.18(3), and proper notice must be given, id. § 400.23. A civil service 

commission has jurisdiction “to hear and determine matters involving 

the rights of civil service employees under [chapter 400], and may affirm, 

modify, or reverse any case on its merits.” Id. § 400.27.

We have long recognized these statutes protect a civil service 

employee such as Whitwer from being arbitrarily discharged. City of Des 

Moines, 540 N.W.2d at 56; accord Anderson v. Bd. of Civil Serv. Comm’rs, 

227 Iowa 1164, 1168, 290 N.W. 493, 494 (1940); see also Lewis, 776 

N.W.2d at 862 (“It is improper for a civil service employee to be removed, 

demoted, or suspended for reasons other than those found in sections

400.18 and 400.19 . . . .”). The commission review process, therefore, 

serves to protect employees “as long as they are not guilty of misconduct 

2The general assembly recently amended several provisions of chapter 400. See

H.F. 291, 87th G.A., 1st Sess. §§ 55–63 (Iowa 2017). We are deciding this case based 

on the version of chapter 400 in effect when Whitwer’s employment was terminated.

 
10

or failure to perform their duties.” Misbach v. Civil Serv. Comm’n, 230 

Iowa 323, 327, 297 N.W. 284, 286 (1941). Review by a commission “does 

not exist to change the issues or scope of the original termination 

decision.” Dolan, 634 N.W.2d at 665. Instead, the main thrust of 

commission review is to determine whether the decision to terminate a 

civil service employee, for either a disciplinary or nondisciplinary reason, 

was arbitrary. City of Des Moines, 540 N.W.2d at 59; Misbach, 230 Iowa 

at 327, 297 N.W. at 286 (“The commission is protection and a shield to 

the civil service employee against an arbitrary or capricious removal.”).

Chapter 400 further provides for judicial review of an employee’s 

termination:

The city or any civil service employee shall have a right 

to appeal to the district court from the final ruling or 

decision of the civil service commission. The appeal shall be 

taken within thirty days from the filing of the formal decision 

of the commission. The district court of the county in which 

the city is located shall have full jurisdiction of the appeal 

and the said appeal shall be a trial de novo as an equitable 

action in the district court.

. . . .

In the event the ruling or decision appealed from is 

reversed by the district court, the appellant, if it be an 

employee, shall then be reinstated as of the date of the said 

suspension, demotion, or discharge and shall be entitled to 

compensation from the date of such suspension, demotion, 

or discharge.

Iowa Code § 400.27. We have distinguished the phrase “trial de novo,” 

which appears in this statute, from mere review de novo. See Sieg v. Civil 

Serv. Comm’n, 342 N.W.2d 824, 828 (Iowa 1983). In a trial de novo, the 

district court “hear[s] the case anew” and may receive evidence not 

presented to the commission. Dolan, 634 N.W.2d at 662. Ultimately, 

“the objective of a trial de novo is to permit the district court to 

independently determine whether the sanction imposed by the 
11

commission was warranted.” Id. at 663. Consequently, a district court—

and by extension, this court on review—may modify any disciplinary 

decision of the Commission. Id.; see also Lewis, 776 N.W.2d at 862 

(“[T]his court ‘independently construe[s] the factual record as a whole to 

determine if the [employee’s] discipline was warranted.’ ” (second and 

third alterations in original) (quoting City of Des Moines v. Civil Serv. 

Comm’n, 513 N.W.2d 746, 748 (Iowa 1994))).

In this case, it is undisputed that Whitwer was entitled to the 

rights of a civil service employee—the Commission only points out that 

nothing in chapter 400 prevents Whitwer from waiving those rights, as 

the last-chance agreement clearly reflects. According to the Commission, 

Whitwer could have elected not to sign the agreement in October 2012, 

faced termination for the domestic abuse assault guilty plea, and then 

contested that termination. Instead, Whitwer signed the agreement and 

kept his job for thirteen additional months subject only to the conditions 

outlined in the agreement. So long as he entered into the agreement 

voluntarily, the Commission maintains that the agreement is valid and 

enforceable.

At the outset, we note that nothing in chapter 400 expressly bars 

agreements waiving civil service appeal rights. In certain other contexts, 

the legislature has declared that any purported waiver of statutory rights 

is void against public policy. See, e.g., Iowa Code § 96.15(1) (“Any 

agreement by an individual to waive, release, or commute the individual’s 

rights to [unemployment] benefits or any other rights under this chapter 

shall be void.”); id. § 216E.6(2) (“Any waiver of rights by a consumer 

under this chapter is void.”); id. § 322G.13 (declaring that a waiver of 

rights related to defective motor vehicles “is void as contrary to public 

policy”); id. § 579B.6 (providing that a waiver of the right to file a lien 
12

under chapter 579B “is void and unenforceable”). However, no similar 

provision exists in chapter 400. Further, the relevant statutes indicate 

that the right to appeal the discharge is an individual right, to be 

exercised at the discretion of the employee. Section 400.20 provides that 

any suspension, demotion, or discharge “may be appealed to the civil 

service commission,” id. § 400.20 (emphasis added), and notice is 

required “[i]f the appeal be taken,” id. § 400.21 (emphasis added).

In the federal system, employees covered by the Civil Service

Reform Act may be removed “only for such cause as will promote the 

efficiency of the service.” 5 U.S.C. § 7513(a) (2012). Federal law provides 

that “[a]n employee against whom an action is taken under [section 

7513] is entitled to appeal to the Merit Systems Protection Board.” Id.

§ 7513(d); see id. § 7701 (providing the procedures for appellate review); 

see also Dep’t of Navy v. Egan, 484 U.S. 518, 526, 108 S. Ct. 818, 823

(1988) (“A removal for ‘cause’ embraces a right of appeal to the Board 

and a hearing of the type prescribed in detail in § 7701.”). However, the 

United States Court of Appeals for the Federal Circuit—the circuit where 

many federal employment cases arise—regularly upholds and enforces 

last-chance agreements related to removals. See, e.g., Buchanan v. Dep’t 

of Energy, 247 F.3d 1333, 1338, 1340 (Fed. Cir. 2001). So long as the 

agreement is validly executed, an employee’s removal is predicated on a 

breach of the agreement, not whether the employee was removed for 

cause. See Stewart v. U.S. Postal Serv., 926 F.2d 1146, 1148 (Fed. Cir. 

1991); see also Buchanan, 247 F.3d at 1337, 1340 (affirming the removal 

of an employee for “failing to be on duty for a significant portion of the 

day”). Further, “[i]t is settled that an employee can waive the right to 

appeal in a last-chance agreement.” Buchanan, 247 F.3d at 1338 

(quoting Gibson v. Dep’t of Veterans Affairs, 160 F.3d 722, 725 (Fed. Cir. 
13

1998)); see Annotation, Enforceability of Waiver of Right to Appeal in 

Federal Employees’ Last Chance Agreement, 16 A.L.R. Fed. 2d 593, 593 

(originally published in 2007) (“It is well established that a federal 

employee can waive future appeal rights in a last chance agreement.”).

A valid waiver-of-appeal provision in a federal last-chance 

agreement divests the Merit Systems Protection Board of jurisdiction, 

Gilbert v. Dep’t of Justice, 334 F.3d 1065, 1070 (Fed. Cir. 2003), and the 

Federal Circuit applies basic contract principles in determining whether 

the agreement should be enforced, Link v. Dep’t of Treasury, 51 F.3d 

1577, 1582 (Fed. Cir. 1995) (“A last-chance agreement is a settlement 

agreement, and a settlement agreement is a contract.”). Accordingly, in 

order to overcome the waiver-of-appeal provision, the federal employee 

must either prove compliance with the agreement, that he or she did not 

knowingly or voluntarily enter into the agreement, or that the agency 

breached the agreement. Id.; see also Gilbert, 334 F.3d at 1070 

(recognizing that the employee has the burden of proof to establish 

jurisdiction). The employee may also demonstrate a last-chance 

agreement is invalid if the agency acted in bad faith. Link, 51 F.3d at 

1582.

Significantly, federal courts recognize the validity of last-chance 

agreements despite several policy arguments similar to those raised by 

Whitwer in this case. See McCall v. U.S. Postal Serv., 839 F.2d 664, 667–

68 (Fed. Cir. 1988). In McCall, the Federal Circuit rejected the idea that 

last-chance agreements are inherently coercive due to unequal 

bargaining power between the employer and employee. Id. at 667; see 

also Williams v. U.S. Postal Serv., 58 Fed. App’x 469, 471 (“The choice 

between removal and signing the agreement is inherent in any last 

chance agreement.”). The court acknowledged that individuals “are often 
14

forced to make difficult choices which effectively waive statutory or even 

constitutional rights.” McCall, 839 F.2d at 667. Nevertheless, the court 

recognized that an employee obtains a substantial benefit from entering 

into a last-chance agreement: retaining employment and being given an 

opportunity to improve his or her conduct. See id. So long as the waiver 

is knowing and voluntary, the agreement simply “reflects a rational 

judgment on the part of [the employee].” Id.

In McCall, the Federal Circuit also addressed the argument that 

enforcement of last-chance agreements may incentivize agencies to bring 

disciplinary actions that “might otherwise not be sustainable before the 

board.” Id. The court recognized the public interest at stake in allowing 

a full and fair consideration of all disciplinary actions; however, the court 

pointed out that a federal employee’s right to appeal is a private decision 

of the employee. Id. Consequently, the court concluded, “We cannot say 

that the comparatively remote public interest in the effectiveness of the 

Civil Service Reform Act should displace [the employee’s] knowing and 

voluntary decision that he would benefit personally from the agreement.” 

Id.

Finally, the Federal Circuit rejected the idea that last-chance 

agreements are “contrary to the goals of the Civil Service Reform Act” and 

“open[ ] the door to completely subjective evaluation by the agency.” Id. 

Specifically, the agreement in McCall required the employee to conduct 

himself in a manner “acceptable to management” or face removal. Id. at 

665. As the court explained,

We agree that the term “acceptable to management” does 

introduce an element of subjectivity into the agreement, but 

this does not mean that agencies would have a free hand to

take arbitrary action against employees. We think it is 

implicit in the agreement here that the agency must abide by 

it in good faith. Thus, the agreement itself serves as a check 
15

on arbitrary agency action. If an agency acts in bad faith or 

takes other arbitrary and capricious action, as a breaching 

party it would not be able to enforce the agreement.

Id. at 667 (emphasis added). The court also distinguished cases 

involving the waiver of substantive guarantees for individual employees, 

noting that the removal statutes at issue were directed only “to the 

procedures by which civil servants are hired and fired.” Id. at 668; cf.

Callicotte v. Carlucci, 698 F. Supp. 944, 946–47 (D.D.C. 1988) 

(concluding that a waiver of an employee’s right to file a claim of 

workplace discrimination was invalid as contrary to public policy).

Likewise, several state courts have enforced last-chance 

agreements as a valid waiver of a civil service employee’s rights related to 

the termination of employment. See, e.g., Muth v. City of Leominster, No. 

12–P–1498, 2013 WL 3939948, at *1 (Mass App. Ct. Aug. 1, 2013); 

Chilefone v. Metro. Council, No. C0-02-2260, 2003 WL 21694564, at *3 

(Minn. Ct. App. July 22, 2003); Watson v. City of East Orange, 815 A.2d 

956, 957–58 (N.J. 2003) (per curiam) (enforcing the terms of an 

agreement in part because “[a] contrary conclusion likely would chill 

employers from entering into last chance agreements to the detriment of 

future employees”); Abramovich v. Bd. of Ed., 386 N.E.2d 1077, 1079–80 

(N.Y. 1979) (“[W]hen a waiver is freely, knowingly and openly arrived at, 

without taint of coercion or duress, the sturdy public policy 

underpinnings of section 3020-a are not undermined.”); Monahan v. 

Girouard, 911 A.2d 666, 672–73 (R.I. 2006); City of Yakima v. Yakima 

Police Patrolmans Ass’n, 199 P.3d 484, 490 (Wash. Ct. App. 2009). At 

least two other states expressly authorize waiver by statute. See

McCollins v. Cuyahoga County, 20 N.E.3d 1221, 1225 n.3 (Ohio Ct. App. 

2014) (“The statute and case law treat Last Chance Agreements like any 

other contract . . . .”); City of Austin Firefighters’ and Police Officers’ Civil 
16

Serv. Comm’n v. Stewart, No. 03–15–00591–CV, 2016 WL 1566772, at *3 

(Tex. App. Apr. 14, 2016) (recognizing that when an agreement 

authorized by statute addresses disciplinary actions, it “supersedes any 

contrary statute, ordinance, or rule, including provisions under the [Civil 

Service] Act”); see also Ohio Rev. Code Ann. § 124.34(B) (West, Westlaw 

current through 2017 File 5 of the 132d Gen. Assemb.); Texas Loc. Gov’t 

Code Ann. §§ 143.306–.307 (West, Westlaw current through chapters 

effective immediately through Chapter 34 of the 2017 Reg. Sess.).

Whitwer cites only one example of a state court that declined to 

enforce an employee’s waiver of termination rights in a last-chance 

agreement. See Farahani v. San Diego Comm. Coll. Dist., 96 Cal. Rptr. 3d 

900, 905–06 (Ct. App. 2009). However, Farahani is easily distinguishable 

because such waivers in California are expressly prohibited by statute, a 

circumstance which does not exist in Iowa under chapter 400. Id. at 905 

(“By its terms, section 87485 renders null and void any agreement to 

waive the benefits of Chapter 3, ‘Employment.’ ”).

We find the reasoning from McCall persuasive and conclude that a 

last-chance agreement waiving civil service appeal rights afforded to a 

civil service employee under chapter 400 can be valid and enforceable.

Here, the district court concluded that while a municipal 

government may enter into a last-chance agreement with an employee,

such an agreement is not effective until the Commission has had an 

advance opportunity to review and approve the agreement. However, this 

notion bends the duties and responsibilities of the Commission too far. 

No provision in chapter 400 authorizes the Commission to review and 

approve such agreements or provides it with standards for doing so. 

Rather, the Commission acts in an adjudicatory capacity when it reviews 

the removal, demotion, or suspension of a civil service employee. Sieg, 
17

342 N.W.2d at 828. This review process is predicated on a sanction 

having already occurred. Cf. Bevel v. Civil Serv. Comm’n, 426 N.W.2d

380, 383 (Iowa 1988) (concluding that the appeal time in section 400.20 

begins once the employee receives notice of the sanction).

We also do not accept that a last-chance agreement becomes

arbitrary simply because the municipality retains discretion whether to 

offer the agreement. Primarily, this ignores the fact that the employee 

has comparable discretion to reject the agreement, if and when offered. 

Further, any disciplinary decision begins with an exercise of discretion 

by the municipality in any event. The City should retain discretion to 

determine whether to offer an employee an opportunity to remain on the 

job through a last-chance agreement despite otherwise “removable” 

misconduct. For example, in this case, Whitwer was described as having 

an exemplary record of nearly two decades before committing assault in 

2012. See id. at 382 (construing chapter 400 liberally to “assist the 

parties in obtaining justice”).

Of course, a civil service employee does not waive any rights 

protected by chapter 400 if the agreement itself is invalid. Because a 

last-chance agreement is essentially a settlement agreement, general 

principles of contract law should apply to their creation and 

interpretation. See Estate of Cox v. Dunakey & Klatt, P.C., 893 N.W.2d 

295, 302 (Iowa 2017); see also Rick v. Sprague, 706 N.W.2d 717, 723 

(Iowa 2005) (“[W]e also look to contract principles when we interpret 

offers to confess judgment.”).

B. The October 2012 Agreement. The district court determined 

the last-chance agreement was invalid as a matter of law since it lacked 

the Commission’s prior imprimatur. Thus, the court did not reach the 

issue of whether the agreement was otherwise enforceable and valid. 
18

Whitwer does not dispute that he violated the no-contact order, which 

resulted in a direct violation of the last-chance agreement.

Whitwer instead characterizes the circumstances surrounding his

signing the agreement as “incredibly problematic.” Whitwer points out

that the meeting was rescheduled at the last minute from October 5 to 

October 1, and that his personal attorney was not present. He also 

claims that he was under stress when the document was signed and 

faced a “Hobson’s choice”: either sign the agreement “as is,” or be 

terminated.

Upon our de novo review, we are satisfied that Whitwer entered 

into the agreement voluntarily, knowingly, and intelligently. The 

agreement provided a significant benefit—continued employment with a 

five-shift suspension in lieu of termination proceedings. The fact that 

Whitwer’s attorney was not present when he signed the agreement is not 

controlling. Whitwer’s attorney was informed of the terms of the lastchance agreement before the hearing, and no objection was raised to his 

absence. Whitwer’s interests were represented by two union officials at 

the hearing. Whitwer was given ample time, outside the presence of any 

City personnel, to review the agreement with the union officials. Except 

for the scheduling of his shift suspensions, Whitwer raised no questions 

or concerns about the agreement despite several opportunities to do so. 

On these facts, we conclude that Whitwer agreed to the last-chance 

agreement and was fully aware of both its benefits and its consequences.

It is also notable that in this case, the violation of the last-chance 

agreement occurred a little over a year after the agreement was signed 

and was connected to the misconduct underlying the original disciplinary 

proceeding. Additionally, first responders often have to deal with volatile 

in-home situations, including incidents of domestic violence. Thus, full 
19

public confidence in the ability of first responders to perform these 

functions is particularly important.

We do not foreclose the possibility that in a different case in the 

future, such as a case involving a significant lapse of time or a de 

minimis or unrelated breach, attempted enforcement of the last-chance 

agreement might be contrary to public policy or might violate the duty of 

good faith and fair dealing. See McCall, 839 F.2d at 667 (“[I]t is implicit 

in the agreement here that the agency must abide by it in good faith. 

Thus, the agreement itself serves as a check on arbitrary agency 

action.”). Such a case is not before us today and we do not address it in 

today’s opinion.

IV. Conclusion.

For the above reasons, we conclude the last-chance agreement 

signed by Whitwer was valid and enforceable. Accordingly, we reverse 

the judgment of the district court and uphold the City’s termination of 

Whitwer’s employment under the circumstances of this case. See Lewis,

776 N.W.2d at 865.

REVERSED.

All justices concur except Appel and Hecht, JJ., who dissent.
20

#15–1131, Whitwer v. CSC of Sioux City

APPEL, Justice (dissenting).

Iowa Code section 400.30 (2013) states, “The provisions of this 

chapter shall be strictly carried out by each person or body having 

powers or duties thereunder.” If the provisions of the Code are to be 

strictly carried out, it seems to me a person

shall not be removed, demoted, or suspended arbitrarily, 

except as otherwise provided in this chapter, but may be 

removed, demoted, or suspended after a hearing by a 

majority vote of the civil service commission, for neglect of 

duty, disobedience, misconduct, or failure to properly 

perform the person’s duties.

Id. § 400.18(1).

The Iowa legislature has clearly provided, except for certain 

exceptions not applicable here, termination may occur only “after a 

hearing by a majority vote of the civil service commission for neglect of 

duty, disobedience, misconduct, or failure to properly perform the 

person’s duties.” Id. That did not happen here.

I do not think the parties can agree to opt out of the system 

because they think their agreement is more beneficial than the statutory 

framework. The majority suggests last-chance agreements are at least 

sometimes good for the employee and good for the public employer. 

Perhaps so. But that is not the question. The question here is a simple 

one: Does the statute authorize dismissal of an employee without a 

majority vote of the civil service commission after a hearing for the 

enumerated causes? There is nothing in the statute allowing the parties 

to finesse this language.

The majority opinion declares there is nothing in the statute 

prohibiting last-chance agreements. There is no such specific language 

dealing with last-chance agreements. But the fact the language of Iowa 
21

Code section 400.18(1) is broad and not narrow does not defeat its 

application to last-chance agreements that do not provide for a hearing 

and vote by a majority of the civil service commission.

The majority correctly points out the civil service statute does not 

expressly declare waivers are void as do many other statutes. That is a 

fair point. But it also does not expressly authorize last-chance 

agreements, as do some civil service statutes. In any event, the failure to 

provide such a declaration does not eviscerate the mandatory provisions 

of Iowa Code section 400.18(1), which the legislature has instructed the 

participants to strictly enforce. I do not think it can be fairly said this 

provision has been strictly enforced in this case.

For these reasons, I would affirm the judgment of the district 

court. Tinkering with the statute should be left to the legislature.

Hecht, J., joins this dissent.