Gamble v. Hoffman, 68809

• Decision Date: 16 June 1987
• Docket Number: No. 68809,68809
• Parties: Ronald W. GAMBLE, Appellant, v. Colonel Howard HOFFMAN and Missouri State Highway Patrol, Respondents.
• Court: Missouri Supreme Court

Page 890

732 S.W.2d 890

Ronald W. GAMBLE, Appellant, v. Colonel Howard HOFFMAN and Missouri State Highway Patrol, Respondents.

No. 68809.

Supreme Court of Missouri,

En Banc.

June 16, 1987.

Rehearing Denied July 14, 1987.

Richard C. Thomas, Columbia, for appellant.

William L. Webster, Atty. Gen., Timothy Anderson, Theodore A. Bruce, Asst. Attys. Gen., Jefferson City, for respondents.

BILLINGS, Judge.

This is the second appeal of this case. The first appeal, Gamble v. Hoffman, 695 S.W.2d 503 (Mo.App.1985), resulted in a remand for further proceedings consistent with the court's opinion. Additional proceedings were conducted and Ronald W. Gamble's dismissal by the Missouri State Highway Patrol was affirmed by the trial court. However, the lower court considered the remand by the court of appeals to constitute a reinstatement of Gamble as a member of the Patrol and entered an award for wages, attorney fees and expenses in favor of Gamble.

Appeals by both parties were again taken to the court of appeals and that court affirmed Gamble's dismissal and held that because he had not been exonerated of the charges and reinstated as a member of the Patrol during the pendency of these proceedings, there was no issue of wages, attorney fees and expenses. The court said:

The trial court on remand misinterpreted our decision. In that decision we stated ... that the issue of back wages and offsets would be determined by an administrative evidentiary hearing for that purpose in the event the employee was reinstated. Gamble v. Hoffman, 695 S.W.2d at 509 (emphasis ours).

First, however, there must have been a determination that the appellant was improperly dismissed. The case was remanded with instructions for that determination. The trial court erroneously concluded that our decision required an administrative evidentiary hearing without regard to an order of reinstatement on the issue of back wages and offsets. If the decision to discharge is affirmed, the decision of back wages and offsets is moot. (emphasis ours).

This Court granted transfer. The Court agrees with the court of appeals and affirms Gamble's dismissal and reverses that part of the trial court's judgment concerning back wages, attorney fees, and expenses.

On November 19, 1982, the Patrol filed formal charges against Gamble, then a Highway Patrolman, for violating four general orders of the Patrol. He was charged (1) with not being attentive and devoted to duty; (2) with conducting himself in a manner unbecoming a member of the Patrol; (3) with untruthfulness in reporting his actions to his superiors; and (4) with engaging in immoral conduct.

A hearing board was convened pursuant to § 43.150, RSMo 1986, and Gamble was dismissed from the Patrol on December 9, 1982. Gamble appealed that dismissal and the circuit court remanded the case because of the Board's failure to comply with certain administrative procedures. Following the second administrative hearing, Gamble was again dismissed. Thereafter, the court of appeals remanded the proceeding. A new board convened on October 2, 1985, and Colonel Hoffman affirmed Gamble's dismissal.

In this appeal Gamble makes four claims. First, he argues that the Board could not have found the complainant to be credible and therefore his dismissal is not supported by competent and substantial evidence. Second, he claims that evidence tending to discredit the complainant was wrongly excluded from the hearing. Third, he contends that the hearing provided under § 43.150 is neither fair nor impartial and constitutes an unlawful and biased procedure. Finally, he argues that the trial court erred in its award of only back pay and attorney fees because the first Gamble opinion had reinstated him. He contends that this reinstatement should entitle him to back pay, vacation and holiday accruals, and attorney fees.

Judicial review of administrative factual determinations is limited to whether the decision was supported by substantial and competent evidence, to whether the decision was arbitrary, capricious, or unreasonable, or to whether the agency action constituted an abuse of its discretion. Ross v. Robb, 662 S.W.2d 257, 259 (Mo. banc 1983). The evidence is to be viewed in a light most favorable to the agency decision. Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, 894 (Mo. banc 1978). If the evidence supports either of two contrary conclusions, the agency decision must prevail. Id. When an agency sits as an administrative tribunal, determination of the credibility of the witnesses is an agency function. Edmonds v. McNeal, 596 S.W.2d 403, 408 (Mo. banc 1980). The reviewing court may not substitute its own judgment and the court may not set aside the administrative decision unless clearly contrary to the overwhelming weight of the evidence. Pulitzer Publishing Company v. Labor & Industrial Relations Commission, 596 S.W.2d 413, 417 (Mo. banc 1980).

Here, two witnesses, Gamble and Mrs. Janes, the complainant, testified to the specific events that occurred in the Miller house on November 8, 1982. The following summarizes the testimony which supports the findings of the Board.

Trooper Gamble, while in uniform and on duty, drove in his patrol vehicle to a private residence where Mrs. Janes lived with one Andy Miller. Gamble knew that Mr. Miller was away from the residence which was located in the rural area outside Clark, Missouri. From his own testimony, Gamble was neither in pursuit of an offender nor investigating a complaint which had been relayed to him through official channels. He testified he went to pay for some firewood and secondarily to "investigate" a harassment complaint from Mrs. Janes which had been passed on to him by his wife. He testified that while there he drank some orange juice, talked generally to Mrs. Janes and rubbed her neck and shoulders.

Mrs. Janes testified that Gamble then subjected her to unwanted sexual contact in kissing and embracing her, and in putting his hands inside her shirt. Gamble made improper advances to her and said to her, "Let's go in here [the bedroom] for a few minutes." She testified that Gamble held her by the arm or arms as he attempted to coax her into cooperation with his desires despite her repeated refusals and protests. She did testify that he eventually left voluntarily.

After the patrolman's departure, Mrs. Janes reported the incident to a friend and to her father. She registered a complaint with the Patrol on the same day. Gamble's commanding officers questioned him about the incident. He admitted to being at the Miller home during duty time but denied any sexual overtures towards Mrs. Janes. His written report on that day did not mention his "investigation" of the harassment complaint. Two days later, he added that to a supplemental report. Prior to the charges, Gamble had not reported his presence at the residence, he did not produce contemporaneous notes of the "investigated" complaint, nor did he relate specifics of the complaint to his superiors at that time or in later testimony.

Substantial evidence is defined as competent evidence which, if believed, would have probative force on the issues. Citizens for Rural Preservation, Inc. v. Robinett, 648 S.W.2d 117, 124 (Mo.App.1982). If believed by the Board, the testimony of Mrs. Janes constitutes substantial evidence for a finding that Gamble was guilty of the charges. Gamble admits in his own testimony that he was on a personal errand while on duty and in uniform. The Court finds that the dismissal was based on competent and substantial evidence.

Gamble next contends that the Board erred in excluding evidence of the complainant's alleged drug use, prior sexual victimization, subsequent kidnapping, and alleged mental illness. Without more, the excluded testimony is inadmissible in that it does not bear on probative issues but only collaterally into the competency of Mrs. Janes. Such collateral inquiry distracts from the main issues and also carries the danger of prejudice and surprise. Farley v. Johnny Londoff Chevrolet, Inc., 673 S.W.2d 800, 803 (Mo.App.1984). On appeal from the circuit court judgment in administrative cases, the court reviews the decision of the administrative agency and not the judgment of the circuit court. Laclede Gas Co. v. Labor & Industrial Relations Commission, 657 S.W.2d 644, 648 (Mo.App.1983). However, appellate courts will not review the excluded evidence without a specific and definite offer of proof, Frank v. Environmental Sanitation Management, Inc., 687 S.W.2d 876, 883 (Mo. banc 1985); and character evidence is not generally admissible in civil cases unless the pleadings or the nature of the action bring it into issue (e.g., to show damages in libel), Ackerman v. Watson, 690 S.W.2d 498, 499 (Mo.App.1985).

The trial court may refuse inquiry into specific collateral matters which tend only to disparage and discredit witness testimony. Bond v. Wabash Railroad, 363 S.W.2d 1, 6 (Mo.1962); State v. Mahaffey, 676 S.W.2d 20, 21 (Mo.App.1984) (excluding testimony of a witness' past drug usage). Counsel for appellant here inquired about complainant's...