Brixey v. Personnel Advisory Bd., 11711.

• Court: Missouri Court of Appeals
• Citation: Brixey v. Personnel Advisory Bd., 607 S.W.2d 825 (Mo. App. 1980)
• Decision Date: 30 October 1980
• Docket Number: No. 11711.,11711.
• Parties: Jesse Glenn BRIXEY, Plaintiff-Respondent, v. PERSONNEL ADVISORY BOARD of the State of Missouri, and Division of Corrections of the State of Missouri, and Harold E. Cox, Thomas C. McKelly, Richard H. Edwards, Members of the Personnel Advisory Board, State of Missouri, and James C. Martin, Director of the Division of Corrections of the State of Missouri, Defendants-Appellants.

607 S.W.2d 825

Jesse Glenn BRIXEY, Plaintiff-Respondent, v. PERSONNEL ADVISORY BOARD of the State of Missouri, and Division of Corrections of the State of Missouri, and Harold E. Cox, Thomas C. McKelly, Richard H. Edwards, Members of the Personnel Advisory Board, State of Missouri, and James C. Martin, Director of the Division of Corrections of the State of Missouri, Defendants-Appellants.

No. 11711.

Missouri Court of Appeals, Southern District, Division One.

October 30, 1980.

Gregory J. Smith, Springfield, for plaintiff-respondent.

John D. Ashcroft, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for defendants-appellants.

PREWITT, Judge.

Respondent was employed as a teacher at the Fordland Honor Camp, a custodial institution operated by the Missouri Division of Corrections. His employment was terminated effective September 16, 1977. He appealed to the Personnel Advisory Board which, after hearing, upheld the dismissal. The circuit court reversed and ordered that respondent be reinstated because he did not receive a sufficient written statement setting forth the reason for his dismissal as required by § 36.380, RSMo Supp.1975.

In his appeal to the Personnel Advisory Board and in his counsel's opening remarks to that board, the respondent complained of the insufficiency of the notice in that it did not "elaborate specific incidents or circumstances upon which the Division of Corrections relied for its determination" that he had failed to perform his duties and that he "may only surmise what grounds the appointing authority relied upon in its decision to dismiss him."

The Personnel Advisory Board found that respondent "was advised of the reason for dismissal from the dismissal letter of September 12, 1977, the letter of August 16, 1977, the service report, with comments, for the period December 1, 1975, through December 1, 1976, and the disciplinary review proceeding". The board also stated in its findings of fact:

"5. Appellant did not exercise control over his students. There was a lack of discipline, students wandered about and slept in class. Appellant would sleep in class, study for college in class, and would talk in class about trivia and not educational material. Appellant did not always adhere to teachers guidelines set out in Appointing Authority Exhibit 6. Appellant did not turn in assignment sheets or do all his reports. Appellant's work was not always complete. Appellant counseled inmates on how to get around the rules. Appellant did not always give tests he was required to give. Appellant failed to give a requested job description and requested class schedules. Appellant did not prepare his share of the teaching plans. Appellant did not always report students who were absent. Appellant did not always turn in lists of his students when taking leave."

In its Conclusions of Law the board declared:

"6. The findings of fact in paragraph 7 above, individually and collectively constitute incompetency and inefficiency in the performance of the duties of a Teacher V."

There are five paragraphs in the findings of fact, numbered 1 through 5. The only paragraph showing any improper conduct on respondent's part is paragraph 5, so we conclude that the board intended to refer to paragraph 5 rather than 7 in paragraph 6 of its Conclusions of Law.

Section 36.380 provides in part that "No dismissal of a regular employee shall take effect unless, prior to the effective date thereof, the appointing authority gives to such employee a written statement setting forth in substance the reason therefor". The purpose of such notice is to sufficiently inform an employee of the reason for discharge to enable him to attempt to prepare a defense to that reason. Giessow v. Litz, 558 S.W.2d 742, 749 (Mo.App.1977); Holley v. Personnel Advisory Board, 536 S.W.2d 830, 832 (Mo.App.1976). Whether a sufficient notice was given is a question of law and the decision of the Personnel Advisory Board on this issue is not binding upon reviewing courts. See Wolf v. Missouri State Training School for Boys, 517 S.W.2d 138, 142 (Mo. banc 1974).

Appellants here contend that there are three documents which adequately make up the "notice of dismissal"; letters to respondent dated August 16, 1977, and September 12, 1977, and a "Service Report". The reason for the proposed dismissal and the "details surrounding the reason" are set forth in the letter of August 16, 1977, as follows:

"This letter is advance notice that it is proposed to remove you from employment of the Division of Corrections not less than ten days from the date of your receipt of this letter for the following reason:

Failure to perform the duties of Teacher V

The details surrounding the reason for this proposed separation are as follows:

A Regular Service report for the period December 1, 1975 through December 1, 1976 prepared by Mr. Rudd rates you unsatisfactory in all areas. Mr. Rudd went into great detail to describe the corrective action you were to follow in order to achieve a more acceptable service rating.

On April 15, 1977, Mr. Meader further discussed your shortcomings in the area of job performance and attempted to give positive direction to you aimed at improving your performance.

In June, 1977 Mr. Rudd reported to Mr. Meader that there had been no improvement in your performance in spite of his personal efforts to make you aware of problem areas and corrective action.

Finally, in July, 1977 Mr. Meader advised me that you had exercised extremely poor judgment in revealing information to an inmate about material contained in his file. While there was, in fact, a discrepancy in the file, proper corrective action certainly did not require you to inform the inmate of the problem and take no further action. Mr. Meader cites this example as being typical of the general disruption you seem to cause at the institution."

The letter dated September 12, 1977, does not purport to give any reason for dismissal except for the following statement:

"This letter is in further reference to our correspondence of August 16, 1977 proposing to

...