Conley v. City of St. Louis

• Citation: 561 S.W.3d 848
• Decision Date: 18 September 2018
• Docket Number: ED 106183
• Parties: Maurice CONLEY, Plaintiff/Appellant, v. CITY OF ST. LOUIS, Missouri, Steven M. Barney, Stanley Newsome, Sr., and Leo Donahue, Defendants/Respondents.
• Court: Court of Appeal of Missouri (US)

561 S.W.3d 848

Maurice CONLEY, Plaintiff/Appellant,
v.
CITY OF ST. LOUIS, Missouri, Steven M. Barney, Stanley Newsome, Sr., and Leo Donahue, Defendants/Respondents.

ED 106183

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: September 18, 2018
Motion for Rehearing and/or Transfer to Supreme Court Denied October 22, 2018
Application for Transfer Denied December 18, 2018

Paul L. Schmitz, Richard B. Blanke, 906 Olive Street, Suite 300, St. Louis, MO 63101, For Plaintiff/Appellant.

Nolan R. Sharkey, Nancy E. Emmel, Paul R. Diekhoff, 1200 Market Street, Room 314, St. Louis, MO 63103, For Defendants/Respondents.

SHERRI B. SULLIVAN, P.J.

Introduction

Maurice Conley (Appellant) appeals from the trial court’s judgment affirming the decision of the City of St. Louis Civil Service Commission (the Commission) affirming his dismissal from employment by the City of St. Louis Airport Police Department (APD), effective May 7, 2015. We affirm.

Procedural Background

Appellant was an Airport Police Officer with the APD at Lambert-St. Louis International Airport (Lambert) from 2001 until May 7, 2015. Appellant was discharged from his position for his actions on November 30, 2014, which constituted both a neglect of duty in recovering and handling a passenger’s lost property taken into police custody and a violation of rules regarding truthfulness; coupled with past reprimands, one of which was for making false statements. Prior to his discharge, Appointing Authority Sharon Stone (Stone) scheduled a pre-termination review on April 28, 2015, to consider Appellant’s termination. Appellant was informed by letter dated December 15, 2014, of the time and date of the review. The review was held April 28, 2015. After the hearing, Stone determined Appellant should be dismissed.

Appellant appealed his discharge to the Commission. Hearing officer for the Commission Judith Ronzio (Ronzio) conducted an evidentiary hearing. Appellant appeared with counsel Paul Schmitz (Schmitz) and Richard Blanke (Blanke), and Stone appeared in person with Assistant City Counselor Nolan Sharkey (Sharkey). Testimony and evidence were adduced. After taking the matter under submission, the Commission entered a decision upholding Appellant’s discharge. Appellant appealed to the trial court, which affirmed the Commission’s decision.

Factual Background

Appellant was working the third shift at Lambert Airport from 10:30 p.m. on November

561 S.W.3d 851

29, 2014 until 6:30 a.m. on November 30, 2014, when at approximately 3:30 a.m., Whelan Security (Whelan) Officer Vincent Sonderman (Sonderman) located an unattended small gift shop bag in the seating area of Terminal 1. Sonderman opened the bag and saw a shot glass and a boarding pass. Sonderman put the bag back and left the area for about ten minutes. When he returned, the bag was still there. Following Whelan’s policy, Sonderman reported the bag to his supervisor, Lieutenant Brady Lewis (Lewis). They both went to the bag’s location, looked at it and decided to leave it for its owner to retrieve. At approximately 4:00 a.m., Lewis reported the unattended bag to APD Dispatch Officer Kim Goodwin (Goodwin), who radioed Appellant and told him about the unattended bag. Appellant replied he was on his way to the bag’s location, and radioed Goodwin when he arrived. Appellant retrieved the bag and examined its contents, which included an American Airlines boarding pass. Appellant went to the ticket agent counter and spoke to the American Airlines ticket agent, who ran a check of the name listed on the boarding pass. The agent told Appellant the passenger was Felipe Ventura (Ventura), and he had arrived in St. Louis at 8:00 p.m. the prior evening. Appellant returned to the area where the bag had been left and attempted to locate Ventura, but was unsuccessful.

At approximately 4:18 a.m., Appellant radioed Goodwin he had "located the owner" of the property. Goodwin responded on the radio to confirm "the property had been claimed" by the owner rather than Appellant had "located the owner," which are two distinct classifications. Appellant did not correct Goodwin. Appellant then went to Sonderman and informed him he had found the owner of the property.

At approximately 5:00 a.m., Sonderman was approached by Ventura, who asked Sonderman if he had seen a bag from a gift shop. Sonderman told Ventura he had, and suggested Ventura go to the APD to see if they had it, which Ventura immediately did. An investigation ensued into the whereabouts of the bag. The APD referred the matter to Stone for determination of discipline.

In the pre-termination notice, Stone informed Appellant he had violated APD General Order MO8-02(K)(4) Code of Conduct, Neglect of Duty; General Order B10-01(II)(A-1) Evidence and Found Property; and General Order M08-02(W) General Article, in that he had done the following:

At 0418 hours responded back to APD dispatch that you located the owner of the unattended bag and P.O. Goodwin acknowledged your transmission that the owner claimed the bag; you did not correct P.O. Goodwin. In your statement provided on 12-20-2014, you stated that you told APD Dispatch that the bag and its contents were ‘claimed by owner.’ This was not the case - you did not reunite the bag and its contents with its owner, Felipe Ventura, rather you threw the items away, deceiving the APD and the dispatcher of the true disposition of the property and depriving the owner of his property.

Stone also informed him he wrongfully:

[took] control of the bag and its contents in [his] official capacity as an Airport Police Officer but ... threw the bag and its contents into a trash can rather than deliver and report the property to the [APD].

Stone reviewed the matter and conducted the pre-termination hearing. After the hearing, Stone terminated Appellant effective May 7, 2015 under Neglect of Duty, for violating APD General Order M08-02(K)(4); Evidence and Found Property, for violating APD General Order B10-01(II)(A-1); and the City of St. Louis Employee

561 S.W.3d 852

Code of Conduct (City Code of Conduct) "Honesty" section and APD General Order M08-02(W) General Article, for being dishonest about the true disposition of the unattended bag. This appeal follows.

Points on Appeal

In his first point, Appellant contends the Commission erred in finding he violated APD General Order MO8-02(K)(4) Code of Conduct, Neglect of Duty and General Order B10-01(II)(A-1) Evidence and Found Property by failing to promptly deliver and/or report property or money found; and the City Code of Conduct "Honesty" section and APD General Order M08-02(W) General Article by being dishonest about the true disposition of the unattended bag, because these findings are unsupported by competent and substantial evidence.

In his second point, Appellant claims the Commission erred in finding he violated APD General Order MO8-02(K)(4) and General Order B10-01(II)(A-1) because the regulations are overbroad and vague as written and as applied and are otherwise arbitrary, capricious, and unreasonable in that the term "property" is not defined.

In his third point, Appellant maintains the Commission’s decision is arbitrary, capricious, and in violation of its own rules and regulations with respect to Administrative Regulation 117 (AR 117), in that Appellant should have been permitted to return to work for the following...