City of Kansas City v. Arthur, WD56537

CourtCourt of Appeal of Missouri (US)
Writing for the CourtPER CURIAM
Citation998 S.W.2d 870
PartiesMissouri Court of Appeals Western District City of Kansas City, Missouri, Appellant, v. Joseph Arthur, et al., Respondent. WD56537 0
Docket NumberWD56537
Decision Date31 August 1999

Missouri Court of Appeals Western District

City of Kansas City, Missouri, Appellant,
v.
Joseph Arthur, et al., Respondent.

WD56537

08/31/99

Appeal From: Labor and Industrial Relations Commission

Counsel for Appellant: Margaret S. Moran

Counsel for Respondent: John F. Wilcox and Sharon A. Willis

Opinion Summary: The City of Kansas City appeals the Labor and Industrial Relations Commission's decision that a city employee was entitled to receive unemployment benefits because his violation of the City residency requirement did not constitute misconduct.

Court holds: The Commission erred in holding that the employee is not disqualified from unemployment benefits. The City has consistently sought to enforce its residency requirements because of strict wording of its charter. Moreover, the employee was well aware of the provision and had sought to persuade the City that he lived within the limits when it appears he did not. The employee's violation of the City's residency requirement constituted misconduct related to his employment, which disqualifies him from receiving unemployment benefits under the statute.

Howard, P.J., Ulrich and Smart, JJ., concur.

PER CURIAM

The city of Kansas City, Missouri, ("City") terminated Joseph Arthur's employment because it found that he did not comply with the express requirement of the City Charter that employees reside within the boundaries of the City. The Labor and Industrial Relations Commission ("Commission") reversed an appeals tribunal decision which held that Arthur was disqualified from receiving unemployment benefits. The Commission found that the City did not meet its burden of proving that Arthur's employment was terminated because of misconduct associated with his employment. The City appeals.

The judgment of the Commission is reversed.

Background

Kansas City, Mo., Code of Ordinances, section 2-972 (1994) requires:

(4) Residence and domicile as used in this section shall mean principal place of residence and domicile within the city limits.(5) Any employee who has established a residence and domicile within the city limits and who subsequently moves his place of residence and domicile outside the city limits shall automatically forfeit his position of employment with the city. (6) Nonelected employees of the city failing to comply with the provisions of this section will be dismissed from the municipal service forthwith and automatically removed from the payroll by the human resources director. . . . In 1981, Joseph Arthur began working for the City as a carpenter. When Arthur began working for the City, he resided in Kansas City, Missouri. In 1989, Arthur purchased a house in Lee's Summit, Missouri. He and his family continued to reside in Kansas City, at his parents' house, while the Arthurs' new house was being remodeled. In 1991, Arthur's wife and son moved into the house in Lee's Summit. Arthur represented to the City that he continued to stay at his parents' house, but that he often visited his family in Lee's Summit.

In 1993, the City investigated Arthur's residency. Arthur persuaded the City that he really resided in Kansas City although his family resided in Lee's Summit, by representing that he was in the process of a divorce. In 1997, the City investigated Arthur's residency again. The private investigator determined that Arthur spent ninety percent of his time at his Lee's Summit address.

The City held a predetermination hearing recommending that Arthur's employment with the City be terminated. On January 22, 1998, Arthur was suspended without pay, and on February 18, 1998, he was fired for failing to comply with the City's residency requirement. Arthur subsequently filed for unemployment benefits. A deputy with the Division of Employment Security found that Arthur was not entitled to benefits, noting that Arthur "was discharged because he violated his employer's residency policy." Based on that finding, the deputy determined that Arthur was disqualified for six weeks because he was discharged by the City on February 12, 1998 for misconduct connected with work.

In modifying the deputy's determination, the appeals tribunal stated:

In the present case, the claimant became unemployed because he failed to prove to the satisfaction of the employer that he maintained a residence and domicile within the city limits of Kansas City, Missouri, as required by city ordinance. The city ordinance provides that, if an employee fails to maintain a residence and domicile within the city limits, he or she shall forfeit his or her job. . . .

The claimant had both actual and constructive knowledge that his job would be forfeited if he did not maintain a residence and domicile in Kansas City, Missouri. By voluntarily...

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