Burgdorf v. Board of Police Com'rs

• Decision Date: 17 December 1996
• Docket Number: No. 70227,70227
• Citation: 936 S.W.2d 227
• Parties: Kevin BURGDORF, Appellant, v. BOARD OF POLICE COMMISSIONERS, et al., Respondents.
• Court: Missouri Court of Appeals

Page 227

936 S.W.2d 227

Kevin BURGDORF, Appellant, v. BOARD OF POLICE COMMISSIONERS, et al., Respondents.

No. 70227.

Missouri Court of Appeals,

Eastern District,

Division Four.

Dec. 17, 1996.

James P. Towey, Jr., Katherine S. Walsh, Chesterfield, for appellant.

Joan B. Bernstein, Henry D. Menghini, St. Louis, for respondents.

RHODES RUSSELL, Presiding Judge.

Kevin Burgdorf ("officer") appeals from a judgment of the St. Louis City Circuit Court that affirmed an order of the St. Louis Board of Police Commissioners ("Board"). The Board found that officer violated Rule 7.004(jj) and Rule 9.104 of the St. Louis Metropolitan Police Department Manual and ordered him dismissed from the department.

Officer raises three points on appeal: (1) the trial court erred in finding he failed to preserve his claim that the Board lacked subject matter jurisdiction because the record did not disclose that the Board members were statutorily qualified to hear his case and that the Board did not affirmatively disclose that it reviewed the record; (2) his termination violated his right to equal protection under the law; and (3) the trial court erred in finding that he failed to preserve his claim that the Board was biased. We affirm.

BACKGROUND

Officer worked for the department as a police officer for approximately nineteen In January 1993, the department charged officer with violating Rule 7.004(jj) (engaging in conduct which could bring discredit to the police department) by stealing merchandise from the retail store; Rule 3.115(k) (being accountable for securing, receiving, and proper transporting of evidence and property coming into his custody) by failing to return stolen merchandise which came into officer's custody while working as a security officer; and Rule 9.104 (false reporting) by reporting false information to Internal Affairs during the department's investigation of officer.

years. He also worked part-time as a security guard for a local retail store. In connection with his part-time work, officer was accused of stealing merchandise from the store. In December 1992, officer was acquitted of the petty larceny charge.

Prior to officer's hearing before the Board, he attempted to enter into a plea agreement which would have allowed him to remain employed until his pension vested. The Board rejected officer's proposed plea agreement and ordered the case be prepared for trial.

Officer applied for a temporary restraining order in St. Louis City Circuit Court requesting that the Board be restrained from hearing his case because one of the Board's members was privy to his plea agreement. He alleged that the Board would be unable to act impartially with the knowledge of his attempted plea agreement. The court denied officer's request for a temporary restraining order stating that officer could raise the issue in an administrative review proceeding should the record show that the Board acted with a preconceived notion that he was guilty.

After a full hearing, the Board issued its Findings of Fact and Conclusions of Law. The Board found officer guilty of violating Rule 7.004(jj) and Rule 9.104, and found that there was insufficient evidence to support the other charges. The Board ordered him dismissed from the police department.

Officer filed a petition for review pursuant to §§ 536.100-536.140 RSMo 1994 ¹, in the St. Louis City Circuit Court. The circuit court affirmed the Board's decision and dismissed the petition with prejudice at officer's cost. This appeal now follows.

STANDARD OF REVIEW

When reviewing the decision of an administrative agency, we examine the decision of the agency, not the circuit court's judgment. Ogden v. Henry, 872 S.W.2d 608, 611 (Mo.App.1994). Our review of the Board's decision is limited to determining whether the decision is in excess of jurisdiction, unsupported by competent and substantial evidence, or is arbitrary, capricious, or unreasonable. Id. We consider the evidence in the light most favorable to the Board's decision. Kukuljan v. Metropolitan Board of Police Comm'rs, 871 S.W.2d 119, 120 (Mo.App.1994).

SUBJECT MATTER JURISDICTION

In his first point on appeal, officer argues that the trial court erred in finding that he did not preserve his claim that the Board lacked subject matter jurisdiction. He maintains that the Board lacked subject matter jurisdiction to hear his case because the record did not disclose that the Board members were statutorily qualified, and that the record was devoid of evidence that the Board reviewed the entire record.

Officer cites Century State Bank v. State Banking Bd., 523 S.W.2d 856, 860 (Mo.App.1975), for the proposition that judicial review of administrative agency's decisions pursuant to § 536.100, does not require specific allegations of error to be included in the petition for review. Century, however, held that only when an administrative body failed to make findings of fact and conclusions of law, did the petitioner not have to include that issue in the petition for review. See Jackson v. Sayad, 741 S.W.2d 847, 850 (Mo.App.1987).

The general rule is that the petition for review must contain all claims of error for them to be preserved for circuit and appellate court review. See, Citro v. Lee's Summit, 658 S.W.2d 86, 89 (Mo.App.1983); Gray v. Florissant, 588 S.W.2d 722 (Mo.App.1979).

Despite the holding of Century, all grounds other than failure to make findings of fact and conclusions of law, must be asserted in the petition for review. Jackson, 741 S.W.2d at 850 (citing Ross v. Robb, 651 S.W.2d 680, 683 (Mo.App.1983)).

Officer's subject matter jurisdiction claim was not contained in his petition for review. Officer did not raise that issue until approximately eighteen months later in his Suggestions in Support of Petition for Review. The circuit court found that the subject matter jurisdiction issue was not properly preserved because it was not contained in his petition for review. The court, however, stated that the issue was moot because the members of the Board had submitted affidavits certifying compliance with § 536.080.2.

Although officer's petition for review did not contain the subject matter jurisdiction claim, we will address that issue since it was raised before the circuit court via his suggestions in support of his petition. We do not condone this practice. The proper method for preserving a claim of error for review is to conspicuously assert the claim in the petition for review.

Our review includes whether an action of an agency is in excess of statutory authority or jurisdiction of the agency. Fehrman v. Blunt, 825 S.W.2d 658, 661 (Mo.App.1992). The order of an administrative tribunal acting without jurisdiction is void. State Tax Com. v. Administrative Hearing Com., 641 S.W.2d 69, 76 (Mo. banc 1982). Appellate courts acquire no jurisdiction on appeal from void orders except jurisdiction to determine the invalidity of the order and to dismiss the appeal. New Madrid County Health Center v. Poore, 801 S.W.2d 739, 741 (Mo.App.1990).

Officer first asserts that the Board lacked subject matter jurisdiction because the record did not state that the Board's commissioners complied with § 84.040 RSMo. Section 84.040 requires each Board member to be a citizen of Missouri and have been a resident of St. Louis for a period of four years preceding their appointment. Officer does not argue that the commissioners were not statutorily qualified, he simply asserts that the Board lacked subject matter jurisdiction because the record did not specifically state that the commissioners complied with § 84.040.

Officer cites Gardner v. Missouri State Highway Patrol Superintendent, 901 S.W.2d 107, 112 (Mo.App.1995), for the proposition that if an administrative body does not state in its record that its members are statutorily qualified, then that body acts in excess of its authority. In Gardner, the appellant argued that the highway patrol board acted in excess of its authority in dismissing him because the record did not show that the board was composed of three members of the same political party as required by § 43.140 RSMo. The Western District, however, refused to address the issue of jurisdiction on its merits because the record demonstrated that the board complied with the statute. Id. at 112. Thus, contrary to officer's assertion, Gardner did not hold that an administrative body must state in its record that its members are statutorily qualified in order to have jurisdiction.

In Bridges v. State Board of Registration for Healing Arts, 419 S.W.2d 278 (Mo.App.1967), this court addressed an argument similar to officer's. Therein, the appellant's medical license was revoked for performing two unlawful abortions. Appellant filed a petition for review arguing that the board's order was void because it failed to include a finding of fact that at least one of the board's members who voted for the revocation was a graduate of an accredited professional school as required by statute. This court rejected appellant's argument stating that the applicable statute did not require the board to incorporate in its order a formal finding that it members were qualified. Id. at 282.

Although § 84.040 requires that the police board commissioners be citizens of Missouri and residents of St. Louis for four years prior to their appointment, the statute does not require that the Board assert its qualifications in its orders. The Board's failure to state that it complied with § 84.040 did not result in a lack of subject matter jurisdiction. Furthermore, officer does not allege that the commissioners were in fact not qualified. Cf. Williams v. Marcus, 652 Officer also asserts that the Board lacked subject matter jurisdiction because the record did not affirmatively disclose that the Board members read the record. Officer contends that the Board violated § 536.080.2 because there was no assertion in the Board's decision that the entire record was...