Fritzshall v. Board of Police Com'rs, WD
| Decision Date | 02 August 1994 |
| Docket Number | No. WD,WD |
| Citation | 886 S.W.2d 20 |
| Parties | 9 IER Cases 1438 Michael H. FRITZSHALL, Appellant, v. BOARD OF POLICE COMMISSIONERS, Respondent. 48381. |
| Court | Missouri Court of Appeals |
Michael W. Manners, Independence, for appellant.
Dale H. Close, Kansas City, for respondent.
Before SMART, P.J., and LOWENSTEIN and FENNER, JJ.
The employment of Michael H. Fritzshall, a police officer in the Kansas City, Missouri Police Department, was terminated June 26, 1992 by the Board of Police Commissioners for violation of Police Department policy 205, which requires that members of the Department be "residents" of the City of Kansas City, Missouri. The Circuit Court affirmed the decision of the Board. Fritzshall now brings his appeal to this court.
Section 84.570, RSMo 1986 provides that no person shall be appointed a police officer who is not proven to be a bona fide citizen and resident of such city for at least one year. It further provides that the residency requirement may be waived during a probationary status, provided that at the completion of the probationary period, the officer becomes a bona fide resident of the city. The Police Department has supplemented the statute with policy 205, which requires that a member of the Department will remain a resident during the full term of employment with the Department. The policy defines "residence" as the "true, fixed and permanent home and principal establishment, and to which whenever he is absent he has the intention of returning."
Officer Fritzshall began working for the Police Department in 1972. At that time, he resided in Kansas City. The residence policy at the Department was not enforced. It was no secret that some officers actually resided outside the city, maintaining "paper" addresses in Kansas City. In 1980, Fritzshall and his family built a house in Raymore, Missouri, south of Kansas City. Fritzshall established his own "paper" address at his uncle's home in Kansas City. In 1982, the Department began enforcing the residency requirement. Fritzshall registered to vote in Kansas City and began paying personal property taxes in Kansas City. He began spending some of his time at the Kansas City address. In 1985, after an investigation was commenced regarding his residence, Fritzshall was advised by his superiors to sell his home in Raymore and move his family to Kansas City. At that point, Fritzshall began staying in Kansas City during duty days, and spent the days he was off work in Raymore with his family. He voted in Kansas City, paid taxes in Kansas City, and had his vehicles registered in Kansas City. No disciplinary action was taken against him as a result of the 1985 investigation.
In 1989, the Department received a complaint that Fritzshall was living in Raymore in violation of Department policy. Fritzshall's superiors discussed his living pattern once again. On April 25, 1990, following an internal affairs investigation, Fritzshall was informed that he was in violation of policy 205. He was instructed to take immediate action to establish a legal residence within the city. The options presented to Officer Fritzshall were to move his family into Kansas City, or to obtain a divorce or legal separation. On May 21, 1990, Mrs. Fritzshall filed a petition for legal separation. On June 4, 1990, Fritzshall wrote to his supervisor. Fritzshall stated that he realized he had been in violation of the residence policy. He stated that in order to "correct this situation" he had established a residence for himself at 47 East 106th Street in Kansas City (his uncle's residence). He added that since his wife did not wish to move to the new address, they had petitioned the circuit court for a legal separation. He advised that a hearing had been set for July 11, 1990. He provided a copy of the petition for legal separation. The petition, which was filed in the name of Mrs. Fritzshall as petitioner, sought a decree of legal separation and the setting of reasonable child support, but did not request division of property or indebtedness, and did not request maintenance.
On July 2, 1990, Officer Fritzshall was informed by Lt. Colonel Floyd Bartch that the purported legal separation effort was perceived as being a subterfuge. Officer Fritzshall was told that a failure to fully comply would result in his termination. Officer Fritzshall was offered a 60 day extension to move his family to a residence in Kansas City, Missouri. Fritzshall declined the extension, and instead filed an action in United States District Court, claiming that the Police Department policy, as applied to him, unlawfully discriminated against married officers in violation of the equal protection clause of the fourteenth amendment of the United States Constitution. Fritzshall sought injunctive relief against the Department's proposed disciplinary action.
On February 12, 1991, a decision was handed down by the U.S. District Court. The Honorable Scott O. Wright found that the Department, in determining the location of an officer's residence, placed dispositive reliance upon the residence of the officer's spouse. Judge Wright held that the Department's residency requirement, as applied to married officers, violated the equal protection clause of the fourteenth amendment, because there was no rational basis for subjecting married officers to different residence criteria from those applied to single officers. The court directed that in determining the place where an officer resides, the Board must base its determination upon "factors that relate to that officer's residence, not based on his or her spouse's residence or where the officer plans to retire." The Board of Police Commissioners initially appealed the decision, and then dismissed the appeal.
On May 21, 1991, the charges and specifications which had been earlier filed in July, 1990, were amended to include various incidents of alleged violation of rules of conduct and federal aviation regulations. Officer Fritzshall was suspended without pay pending further action.
The hearing before the Board of Police Commissioners was conducted pursuant to § 84.600 on March 31, 1992, and April 2, 1992. The Board of Police Commissioners, following the hearing, found that, although Fritzshall had listed 47 East 106th Street, Kansas City, Missouri, as his residence address since 1980, Fritzshall did not intend for the Kansas City address to be his fixed, true and permanent home. The Board found Fritzshall used the Kansas City address only in an attempt to appear to satisfy the Department's residency policy. The Board concluded that Fritzshall's residence was in Raymore, Missouri, and that he was in violation of Department policy. The Board affirmed his suspension pending the hearing, and ordered the termination of his employment.
Fritzshall appealed the decision of the Board to the Circuit Court of Jackson County, seeking review of that decision pursuant to § 536.100. The Circuit Court affirmed the decision of the Board. On appeal in this court, Fritzshall contends that the Board erred in holding that he was not a resident of Kansas City because the decision was not supported by competent and substantial evidence. Fritzshall also complains that the decision of the Board deprived him of due process of law in that the Department never informed him how he could satisfy the residence policy after "a portion of the policy had been declared unconstitutional." He contends that the failure to advise him how he could satisfy the policy deprived him of fair warning about the type of the conduct proscribed by the Department.
This court reviews the decision of the administrative agency, not that of the circuit court. Harrington v. Smarr, 844 S.W.2d 16, 18 (Mo.App.1992). The reviewing court is to determine in the first instance if the agency's findings were supported by competent and substantial evidence on the record as a whole. Id. While not bound by the administrative body's decisions on questions of law, the court gives due weight to the expertise and experience of the agency and its opportunity to observe the witnesses. Fleming Foods of Missouri, Inc. v. Runyan, 634 S.W.2d 183, 184 (Mo.banc 1982). The fact finding function rests with the administrative agency, and if the evidence would warrant either of two opposed findings, an appellate court must uphold the factual determinations the agency has made. Overland Outdoor Advertising Co., Inc. v. Missouri State Highway Comm'n., 616 S.W.2d 563, 566 (Mo.App.1981). The review of personnel decisions by an administrative agency is limited, and the court is not at liberty to substitute its opinion or decision for that of the agency; the court has no authority to judge the credibility of witnesses. Rockenfield v. Missouri Dept. of Corrections and Human Resources, 740 S.W.2d 230, 231 (Mo.App.1987). In determining the issue of residence, the fact finder is entitled to believe all, none, or part of the declarations of the person subject to the inquiry. Fowler v. Fowler, 732 S.W.2d 235, 237 (Mo.App.1987). There is a strong presumption of validity in favor of administrative decisions and there is a reluctance by the courts to interfere with such discretion. Conder v. Board of Directors of Windsor School, 567 S.W.2d 377, 379 (Mo.App.1978). This court may reverse the findings of an administrative agency if it is determined that the decision is not supported by competent and substantial evidence on the whole record, or if the decision constitutes an abuse of discretion, or is unauthorized by law, or is arbitrary and capricious. St. Joe Minerals Corp. v. State Tax Commission, 854 S.W.2d 526, 529 (Mo.App.1993).
In Ferguson v. Board of Police Commissioners of Kansas City, 782 S.W.2d 814 (Mo.App.1990), this court reviewed a decision of the Board of...
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