Citro v. City of Lee's Summit
| Decision Date | 13 September 1983 |
| Docket Number | No. WD,WD |
| Parties | Anthony S. CITRO, Appellant, v. CITY OF LEE'S SUMMIT and Personnel Hearing Board of the City of Lee's Summit, Missouri, Respondents. 33573. |
| Court | Missouri Court of Appeals |
George E. Kapke, Cochran, Kramer, Kapke & Willerth, Independence, for appellant.
Stanley E. Craven, William C. Martucci, Kansas City, for respondents.
Before SOMERVILLE, C.J., and SHANGLER and PRITCHARD, JJ.
The appellant Citro, a Lee's Summit police officer, appeals from a judgment of the circuit court to affirm the decision of the Personnel Hearing Board to uphold two five-day suspensions administered by the Chief of Police.
These disciplines were sequels to a collision between the official car driven by Citro, lights and siren on, then enroute to investigate an accident scene, and the vehicle of Mary Sue Diekmann. Immediately prior to collision, Ms. Diekmann moved her car to the shoulder to allow a fire truck--with lights flashing and siren sounding--to pass from behind. The collision between Citro and Diekmann was investigated by officer Oakley of the Lee's Summit Police Department. At the scene, Ms. Diekmann stated to Oakley that Citro struck her as she changed lanes. Citro made the same statement. Later that day, Ms. Diekmann telephoned Oakley to correct her earlier statement--that she was not struck as she changed lanes but as she pulled onto the shoulder of the road. Oakley prepared both the original report and a supplement to include the Diekmann change of narrative.
In the evening, two days later, Citro telephoned Oakley at home after hours to discuss the investigation and report of accident. The purpose was to vent displeasure at the investigative report filed by Oakley, and the tenor of the call--which lasted more than an hour--was to berate and disparage Oakley. Citro accused Oakley that he was unduly influenced by his superiors in the determination of fault, that Ms. Diekmann was equally at wrong and suggested that Oakley add a supplemental report to that effect. Oakley reported the Citro overture to a superior officer and then to the Chief of Police.
The Chief of Police imposed two suspensions, each for five work days: the first, for the neglectful manner of operation of the police car into a controlled intersection; the second, because Citro "did call Police Officer James Oakley at his residence and attempt to influence officer Oakley's investigation of the aforementioned traffic accident." The sanctions were appealed to the Personnel Hearing Board which, after full hearing, affirmed the suspensions in a report and order. Citro concedes that the sanction imposed for the careless operation of the police car rests on substantial evidence, and does not dispute that action. Citro does contend, however, that there was no evidence of a standard of conduct his action violated, nor was there evidence that Citro attempted to exploit the friendship with Oakley to induce a change in the official report. 1
We confront first the contention that there was no evidence to sustain the Personnel Hearing Board finding of a "friendly relationship" subsistent between the officers which Citro attempted to exploit. There was evidence that Citro and Oakley were colleagues on the police force, that they had trained together and worked together as a team in accident investigation. Friend describes a range of relationships from the intimate to the casual--from kinship and marriage to a group affiliation where friendly feelings are assumed and cooperation expected. Adams v. Simpson, 358 Mo. 168, 213 S.W.2d 908, 913 (1948). See also Webster's Third New International Dictionary, 911 (Unabridged ed. 1976)--friend. The evidence shows that the principals were friends within this range of definition. 2 The gist of the citation, in any event, was not the exploitation of a subsistent friendship, but the attempt by one officer to influence an official action of another to a personal advantage.
There remains the contention that the notice of suspension--the formal charge [see footnote 2]--does not define a standard of conduct officer Citro was under duty to discharge, and therefore punishable for the breach.
The proceeding before the Personnel Hearing Board was on full evidence--a contested case within § 536.010(2), RSMo 1978--at which the appellant Citro was represented by counsel. The appellant took judicial review of the adverse decision of the administrative body by a petition for review- --as contemplated by § 536.130. That formal request for judicial review--otherwise fastidiously articulated--neither presents the issue nor intimates it. The respondent City of Lee's Summit argues that the neglect of the petition for review to assert "as a ground of administrative error" that the Notice of Suspension describes no specific rule or standard of discipline infracted by the conduct alleged against Citro precludes that contention for the first time on this appeal.
Citro does not argue that the petition for review encompasses the contention now presented: that "there is no evidence of a standard of conduct imposed upon the appellant which has been violated by the appellant." Rather he asserts that Rule 100.07(b)(3) 3 which defines the scope of judicial review to encompass a contention that the agency action "is unsupported by competent and substantial evidence upon the whole record" legitimates a contention, even made for the first time in the court of appeals, that an agency decision to impose a discipline for the violation of a standard of conduct where that standard does not appear in the record does not rest on "competent and substantial evidence." The appellant fashions two arguments for reversal from this premise: one on constitutional grounds, the other on grounds of administrative error.
The constitutional error, as formulated in the brief, contends: "Due process of law requires that before property can be taken from a citizen, including five days pay, that citizen must know the standard of conduct he must meet to avoid the taking." That contention fails for a basic reason. The petition for review lodged in the circuit court [presumably, the first available opportunity to make the contention in such a proceeding] asserts only: "[t]he hearing afforded plaintiff denied plaintiff his constitutionally protected rights of due process of law and equal protection of the law." Such an assertion--devoid of the facts of the violation--describes no constitutional infraction and so preserves none. City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372, 380 (banc 1949); Gray v. City of Florissant, 588 S.W.2d 722, 724 (Mo.App.1979).
The singular requisites for the preservation of constitutional review aside, the question remains whether [former] Rule 100.07 [present § 536.140] imposes upon a court of appeals the duty to decide ordinary administrative error not presented to the circuit court by a petition for review. 4 The rule prescribes, as does the statute, that judicial review in the circuit court shall be upon the petition and the record filed and the scope of inquiry on review may extend to determine whether the action of the agency fails to conform to law in seven particulars--among them [Rule 100.07(b)(3) ], whether "unsupported by competent and substantial evidence upon the whole record." That the procedure envisions that the court of review shall confine decision to the petition for review is made implicit by Rule 100.06--Record on Judicial Review:
(a) Record--Filing--Contents
Within thirty days after the filing of the petition or within such further time as the court may allow, the record before the agency shall be filed in the reviewing court....
....
(3) ... Any matter not essential to the decision of the questions presented by the petition may be omitted. [emphasis added]
That § 536.140 [as did former Rule 100.07] defines the scope of review in a contested administrative case at all is because the circuit court in that exercise acts in an unaccustomed role--that of a court of review....
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...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 Despite the holding of Century, all grounds other than failure to make findings of fac......
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...Appellant was denied a fair hearing for the reasons assigned in points I and IV. Similar circumstances existed in Citro v. City of Lee's Summit, 658 S.W.2d 86 (Mo.App.W.D.1983). There, a police officer appealed to the circuit court from a personnel board decision upholding disciplinary acti......
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