Gardner v. Missouri State Highway Patrol Superintendent, WD

• Decision Date: 04 April 1995
• Docket Number: No. WD,WD
• Citation: 901 S.W.2d 107
• Parties: Wayne H. GARDNER, Appellant, v. MISSOURI STATE HIGHWAY PATROL SUPERINTENDENT, Respondent. 48788.
• Court: Missouri Court of Appeals

Page 107

901 S.W.2d 107

Wayne H. GARDNER, Appellant, v. MISSOURI STATE HIGHWAY PATROL SUPERINTENDENT, Respondent.

No. WD 48788.

Missouri Court of Appeals Western District.

April 4, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 30, 1995.

Application to Transfer Denied July 25, 1995.

Nicholas M. Monaco, Jefferson City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for respondent.

Before KENNEDY, P.J., and BRECKENRIDGE and SPINDEN, JJ.

BRECKENRIDGE, Judge.

Corporal Wayne H. Gardner appeals his dismissal from the Missouri State Highway Patrol (the Patrol) after the Highway Patrol Disciplinary Board (the Board) found Corporal Gardner guilty of insubordination and of refusal to comply with a direct order to submit to a polygraph examination.

Corporal Gardner raises eight points on appeal, arguing (1) that the Missouri Highway Patrol and Colonel Fisher, the agency's superintendent, acted in excess of their authority in dismissing him, because the record does not establish that the Board appointed to hear his case was composed of at least three members of the same political party as Corporal Gardner; (2) that his termination for refusing to take a polygraph examination was unconstitutional in that Corporal Gardner had not been granted immunity sufficient to supplant the privilege against self-incrimination; (3) that the orders for him to submit to a polygraph examination were unreasonable, arbitrary and capricious, because Missouri courts have found polygraph examinations to be unreliable; (4) that the Board's finding that Corporal Gardner had refused to take a polygraph examination was arbitrary, capricious and not supported by the competent and substantial evidence, because he was never lawfully ordered to submit to a polygraph examination; (5) that the Board erred in disregarding testimony indicating Corporal Gardner had in fact taken a polygraph examination; (6) that Corporal Gardner's termination was improper because Colonel Fisher did not read the entire record of the Board hearing, including all the evidence, before carrying out the Board's recommendation of dismissal; (7) that the Missouri Highway Patrol had no authority to order Corporal Gardner to submit to a polygraph examination because there was no reasonable suspicion that he had committed theft; and (8) that Corporal Gardner's dismissal was barred by the doctrine of res judicata. The judgment is affirmed.

This court views the evidence in the light most favorable to the decision of the administrative agency, drawing all reasonable inferences therefrom. Becker v. Dept. of Corr. & Human Serv., 780 S.W.2d 72, 76 (Mo.App.1989). On January 14, 1991, Corporal Gardner visited Wright Studio and Camera Shop in Jefferson City, Missouri. After departing, he realized that he had left his jacket at the store, so Corporal Gardner returned to retrieve it.

Approximately fifteen minutes prior to Corporal Gardner's second visit to the camera store, an employee, William E. Morrison, arrived for his shift, carrying a $289 light meter belonging to the camera shop. Mr. Morrison placed the light meter on a used equipment counter.

When Corporal Gardner returned for his jacket, he placed it over the light meter and asked Mr. Morrison to check the prices of coking filters at a different counter. By the time Mr. Morrison returned, Corporal Gardner had draped the jacket over his arm. Corporal Gardner did not purchase the filters, but left the store. Shortly thereafter, Mr. Morrison realized the light meter was missing. Store employees testified that no other customers were near the used equipment counter at the time that the light meter disappeared.

Mr. Morrison telephoned Corporal Gardner to ascertain whether he knew anything about the missing light meter. Corporal Gardner claimed that two women had been near the used equipment counter while he was in the store, although none of the employees had seen them in that area. Corporal Gardner later returned to the store a third time, to buy chemical bottles. According to testimony, he seemed nervous and asked employees about the missing meter.

On January 16, 1991, Zeal Wright of Wright Studio and Camera Shop contacted Lieutenant Frank Burkhead, a member of the Missouri Highway Patrol, regarding the incident. Lieutenant Burkhead then conveyed information concerning the missing light meter to Lieutenant Kenneth R. Ledbetter, a member of the Division of Professional Standards of the Patrol, the following day. Upon the advice of Lieutenant Colonel B.D. Smith, the Assistant Superintendent of the Patrol, Lieutenant Ledbetter investigated the situation, interviewing personnel at the camera shop.

On the afternoon of January 17, 1991, Lieutenant Burkhead and Lieutenant Ledbetter met with Lieutenant Colonel Smith and Colonel Fisher to discuss the incidents surrounding the missing meter. Colonel Fisher was apprised that Corporal Gardner had been in the camera store, that he had placed his coat on the light meter, that he had been the only customer near the light meter, and that the light meter was missing shortly after he left. Colonel Fisher was also informed that Corporal Gardner later returned to the store in a nervous state, after employees telephoned him regarding the disappearance.

Colonel Fisher asked Lieutenant Burkhead to visit Corporal Gardner at his home to look for the missing meter. During the visit, Corporal Gardner showed Lieutenant Burkhead his photographic equipment, but Lieutenant Burkhead was unable to locate the meter.

On the morning of January 18, 1991, Lieutenant Burkhead met with Colonel Fisher, Lieutenant Colonel Smith, Lieutenant Ledbetter and Captain White. Lieutenant Burkhead stated that he had not viewed the missing meter. Nonetheless, Colonel Fisher authorized a polygraph examination to be conducted on Corporal Gardner.

Corporal Gardner was called to the Professional Standards Division for questioning on January 19, 1991. Captain White and Lieutenant Ledbetter handled the interview. Corporal Gardner was told that they were conducting a criminal investigation, and he was read his Miranda rights. Corporal Gardner then requested to speak with an attorney. After Corporal Gardner's lawyers arrived, he was questioned, and he discussed his visits to Wright Studio and Camera Shop. During the questioning, Captain White specifically requested that Corporal Gardner take a polygraph examination, but Corporal Gardner refused on the advise of counsel.

Later during the questioning, Corporal Gardner was notified that, instead of conducting a criminal investigation, the Patrol would conduct "strictly an internal investigation," and he was given a Garrity warning. ¹ Captain White then renewed his request for Corporal Gardner to take a polygraph examination. Corporal Gardner continued to refuse on the advise of counsel, stating that he understood formal charges could be drawn against him for the failure to submit to such an examination.

Later that same day, Lieutenant Thomas J. Halford also ordered Corporal Gardner to take a polygraph examination and again explained that if he refused, formal charges for dismissal could be filed. Based on the advise of counsel, however, Corporal Gardner persisted in refusing the polygraph examination. Corporal Gardner again acknowledged that he understood this refusal could result in his dismissal.

Finally, on January 25, 1991, Lieutenant Gene Vaughn, the Acting Troop Commander, ordered Corporal Gardner to submit to the examination. Lieutenant Vaughn also apprised Corporal Gardner that he would be the subject of formal charges if he refused to cooperate. Corporal Gardner nonetheless declined to submit to the polygraph examination.

On January 30, 1991, the Patrol informed Corporal Gardner that formal charges had been filed against him for insubordination and for failure to obey the order of a superior. The day after receiving this notice, Corporal Gardner privately arranged to have Dr. Carroll Price administer a polygraph examination. Corporal Gardner did not inform the Patrol that he was taking the examination, nor did he reveal his passing results until the day of the hearing on the charges.

The Board convened on February 8, 1991 to hear his case. After considering all the evidence, the Board recommended Corporal Gardner's dismissal. Colonel Fisher issued the decision of the agency by terminating Corporal Gardner's employment with the Patrol through a letter dated February 15, 1991. Corporal Gardner filed a Petition for Review of Agency Decision in the Circuit Court of Cole County, Missouri.

On November 25, 1991, the circuit court reviewed the agency decision, finding that the Patrol "acted beyond [its] authority in terminating Appellant Gardner because Colonel Fisher failed to read the entire record, including all evidence" presented at the Board hearing before terminating Corporal Gardner's employment. The court reversed the decision and remanded it to the Patrol. No further hearings were conducted by the Patrol, but on December 19, 1991, Colonel Fisher again ordered Corporal Gardner's dismissal, this time after having read the entire record, including all the evidence.

Corporal Gardner then filed a second Petition for Judicial Review of Agency Decision, claiming that the circuit court's November 25, 1991 order conclusively determined that he should be reinstated, in that it "reversed and held for naught" his dismissal. The Circuit Court of Cole County, however, affirmed the dismissal, and Corporal Gardner appeals.

Although the circuit court affirmed Corporal Gardner's termination, this court reviews only the findings and decision of the administrative agency, not the holding of the circuit court. Biggs v. Missouri Com'n on Human Rights, 830 S.W.2d 512, 515 (Mo.App.1992). "Review is limited to a determination of whether the decision was in excess of agency jurisdiction, supported by...