Dir., MO. Dep't. Public Safety v. Murr

• Decision Date: 08 February 2000
• Parties: (Mo.App. W.D. 2000) Director, Missouri Department of Public Safety, Respondent, v. Steve Murr. Appellant. WD57106 0
• Court: Missouri Court of Appeals

11 S.W.3d 91 (Mo.App. W.D. 2000) Director, Missouri Department of Public Safety, Respondent, v. Steve Murr. Appellant.

WD57106

Missouri Court of Appeals Western District

02/08/2000

Appeal From: Circuit Court of Cole County, Hon. Byron L. Kinder

Counsel for Appellant: Virginia L. Fry

Counsel for Respondent: Theodore A. Bruce

Opinion Summary: The Missouri Department of Public Safety appeals the circuit court judgment reversing the Administrative Hearing Commission decision and ordering the DPS to certify Steve Murr as a peace officer.

AFFIRMED.

Division Three holds:

(1) At the time of Murr's appointment as a deputy sheriff, statute required that he be certified as a peace officer within one year of his appointment or be terminated. At his initial certification application in May 1993, to be certified as a peace officer, he was required by statute to complete a minimum number of hours of approved law enforcement training. In addition to the express statutory requirements, the General Assembly created, within the DPS, the POST Commission and authorized it to "establish the core curriculum and . . . also formulate definitions, rules and regulations for the administration of peace officer standards and training." Giving the language of section 590.120.5, RSMo Supp. 1993, its plain and ordinary meaning, the intent of the legislature was to give the POST Commission the authority to promulgate rules and regulations not only establishing the core curriculum and training requirements for peace officer certification, but also standards, which would logically include minimum educational standards. As such, this authority impliedly conferred it with the power to promulgate a regulation requiring peace officer applicants to have a high school diploma or its equivalent. Because the POST Commission had the statutory authority to promulgate the regulation, and because there is no dispute that Murr does not have, and did not have at the time he first applied for certification, a high school diploma or its equivalent, the AHC decision ordering the DPS to certify Murr as a peace officer, erroneously declared and applied the law and was not supported by competent and substantial evidence.

(2) With respect to its laches argument, the DPS contends that section 590.110.1 should be interpreted as forever barring Murr from seeking certification as a peace officer because he did not obtain certification within one year of his first being appointed as a deputy sheriff. Although this issue is now moot given our discussion, supra, because it presents an unsettled legal issue of public interest and importance that is likely to be raised in the future, the Court will address it.

Giving the language of section 590.110.1its plain and ordinary meaning, the legislature did not intend that a person who is not certified as a peace officer within one year of his or her initial appointment is forever barred thereafter from being certified. Rather, the statute simply says that if a peace officer is not certified within one year of his or her initial appointment, the appointment must be terminated and he or she cannot thereafter be rehired as a peace officer by any other law enforcement agency in this state, unless he or she has first obtained certification. The statute was designed to prevent a non-certified peace officer from being terminated at the end of his or her one-year probationary period and then being rehired, giving him or her not only another one-year probationary period in which to receive certification, but also another year in which to work as a non-certified peace officer. The statute would not prevent a person in this state, such as Murr, who was hired and terminated after failing to become certified within the one-year probationary period, from being certified in the future and, upon such certification, being reappointed as a peace officer by a public law enforcement agency.

Edwin H. Smith, Judge

This is an appeal from the judgment¹ of the circuit court reversing the decision of the Administrative Hearing Commission (the AHC) ordering the Missouri Department of Public Safety (the DPS) to certify Steve Murr (Murr) as a peace officer pursuant to section 590.120.5.²

In the DPS's sole point on appeal, it claims that the AHC erred in ordering it to certify Murr as a peace officer, even though he did not have a high school diploma or its equivalent, as required by 11 C.S.R. 75-3.020(3), because: (1) contrary to the finding of the AHC, it did have the authority, under section 590.120.5, to promulgate 11 C.S.R. 75-3.020(3); and (2) in the alternative, even if it did not have such authority, laches prohibited Murr from challenging its decision to deny him certification as a peace officer.

We affirm.

Facts

On January 1, 1993, Sheriff Garrell Mitchell hired Murr as a deputy sheriff for the Wright County Sheriff's Department. At that time, he had only attended school through the eighth grade and had not received a General Educational Development (GED) certificate. On February 21, 1993, Murr completed an application for peace officer certification, as required by section 590.110.1, RSMo Supp. 1988. For some unexplained reason, Sheriff Mitchell did not send the application to the DPS until May 1993. Sometime in June 1993, Murr learned that the DPS required him to have a high school diploma or its equivalent before it would certify him as a peace officer. On June 25, 1993, he successfully completed 120 hours of basic law enforcement training at the University of Missouri in Columbia, Missouri, as required by section 590.105.1, RSMo Supp. 1990.

On September 15, 1993, Grace Kallenbach, the program monitor for the Peace Officer Standards and Training Commission (the POST) sent a letter to Sheriff Mitchell requesting a copy of Murr's high school diploma or its equivalent, stating that a copy was needed before "we can further process the officer's POST Certification Application." Because Murr did not have a high school diploma or its equivalent, in August or September 1993, he took the GED examination, but failed.

On November 4, 1994, Chris Egbert, the POST director, sent a letter to Sheriff Mitchell informing him that Murr had not completed the "minimum basic training course within the twelve (12) months specified by law." He suggested that, in order to protect the Wright County Sheriff's Department from civil liability, Sheriff Mitchell place Murr in a non-commissioned position. He also informed Sheriff Mitchell that he could request a hearing, within thirty days of receipt of his letter, to present evidence as to why Murr should not be denied certification as a peace officer.

In February 1997, the local prosecutor filed a criminal charge against Sheriff Mitchell for employing a non-certified peace officer. Section 590.180.1. As a result, on February 23, 1997, Sheriff Mitchell terminated Murr's employment as a deputy sheriff for lack of certification. Sometime after his termination, Murr enrolled in a correspondence course offered by the International Correspondence Schools Newport/Pacific High School (ICS) designed to allow people to obtain a high school diploma by self-directed study. On October 6, 1997, Murr was awarded a diploma from ICS for successful completion of its program.

On October 14, 1997, Sheriff Mitchell contacted Mr. Egbert and informed him that Murr had received his high school diploma and requested that he be certified as a peace officer. Mr. Egbert informed Sheriff Mitchell that Murr's ICS diploma was not recognized in Missouri as being equivalent to a high school diploma. On January 13, 1998, Murr requested a hearing before the AHC concerning the DPS's refusal to certify him as a peace officer. A hearing was held on May 28, 1998.³ At the hearing, the DPS contended that it had the authority to promulgate 11 C.S.R. 75-3.020(3), requiring applicants for peace officer certification to have a high school diploma or its equivalent, and Murr's ICS diploma was not equivalent to a high school diploma. The DPS also took the position that Murr was forever barred under the law from being certified because he did not obtain his certification within twelve months of first being employed as a peace officer.

On August 14, 1998, the AHC found that the DPS did not have the statutory authority to promulgate 11 C.S.R. 75-3.020(3), requiring that applicants for peace officer certification have a high school diploma or its equivalent. As such, it found that, while Murr's ICS diploma was not recognized as the equivalent to a high school diploma in Missouri, because the DPS could not require that he have a high school diploma or its equivalent, his failure to have such was not a valid bar to certifying him as a peace officer. Hence, the AHC ordered the DPS to certify him as a peace officer. The DPS appealed the AHC's decision to the Circuit Court of Cole County.

On February 18, 1999, the trial court reversed the AHC's decision, finding that it was not supported by substantial and competent evidence because the DPS did, in fact, have the statutory authority, pursuant to section 590.120.5, to enact 11 C.S.R. 75-3.020(3) requiring that applicants for peace officer certification have a high school diploma or its equivalent.⁴

This appeal follows.

Standard of Review

Our review is of the decision of the AHC, not the decision of the trial court. Psychiatric Healthcare Corp. v. Department of Soc. Servs., Div. of Med. Servs., 996 S.W.2d 733, 735 (Mo. App. 1999) (citing Black v. Lombardi, 970 S.W.2d 378, 381 (Mo. App. 1998)). We are to uphold the decision of the AHC when it is "authorized by law and supported by competent and substantial evidence upon the whole record." Section 621.193. "Our review is limited to determining whether the 'decision is in excess of jurisdiction, unsupported by competent and substantial evidence, or is arbitrary, capricious, or unreasonable.'" Cohen v. Missouri Bd. of Pharmacy, 967 S.W.2d 243, 246 (Mo....