Heinen v. Police Personnel Bd. of Jefferson City

• Decision Date: 07 July 1998
• Docket Number: No. WD,WD
• Citation: Heinen v. Police Personnel Bd. of Jefferson City, 976 S.W.2d 534 (Mo. App. 1998)
• Parties: Herbert J. HEINEN, Appellant, v. POLICE PERSONNEL BOARD OF JEFFERSON CITY, Respondent. 54665.
• Court: Missouri Court of Appeals

Page 534

976 S.W.2d 534

Herbert J. HEINEN, Appellant, v. POLICE PERSONNEL BOARD OF JEFFERSON CITY, Respondent.

No. WD 54665.

Missouri Court of Appeals Western District.

Submitted March 12, 1998.

Decided July 7, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Sept. 1, 1998.

Application for Transfer Denied Oct. 20, 1998.

Mark A. Richardson, Jefferson City, for appellant.

John J. Pawloski, St. Louis, for respondent.

Before EDWIN H. SMITH, P.J., and ELLIS and SMART, JJ.

SMART, Judge.

Herbert Heinen appeals the decision of the Police Personnel Board of Jefferson City, a third-class charter city under § 77.010, RSMo 1994, upholding his dismissal from employment as a police officer. The Circuit Court of Cole County denied his petition for review of the Board's decision. On appeal, Heinen alleges that (1) the Board's decision was not supported by substantial evidence on the record, and (2) he was denied due process during the post-termination hearing in that he was not permitted to cross-examine the chief of the department concerning the chief's prior personnel evaluations. Due to lack of clarity in the Board's decision as to certain crucial facts, we vacate the judgment of the circuit court and remand for new findings of facts and conclusions of law.

Factual Background

The evidence is reviewed in the light most favorable to the Board's decision. Shell Oil Co. v. Director of Revenue, 732 S.W.2d 178, 180 (Mo. banc 1987). Herbert J. Heinen began working for the Jefferson City, Missouri, Police Department in August of 1978. In 1987, Heinen received a promotion to lieutenant. By August of 1996, Heinen was in charge of hiring and testing new officer recruits, baton and firearms training, and training for citizens enrolled in the Citizens Police Academy, a volunteer program sponsored by the department. In addition, Heinen was the department's supply officer. As such, he was responsible for the procurement of law enforcement equipment.

At the end of January, 1996, K. Tyler Brewer became the new Chief of the Jefferson City Police Department. Prior to that, he had been employed by the police department of Wichita, Kansas. Lieutenant Heinen's office was five feet down the hall from Chief Brewer's office, and they had contact many times daily. By all accounts, Lt. Heinen and Chief Brewer had a good working relationship prior to a series of events beginning in August of 1996.

Lt. Heinen received personnel evaluations every six months. Heinen's evaluations were consistently favorable in all areas until his July 1996 evaluation, which noted Heinen's failure to carry out an order to procure new badges for the officers of the Jefferson City Police Department. Lt. Heinen and Chief Brewer had discussed the idea of procuring new badges for the department months earlier, and the chief instructed Lt. Heinen to contact a supplier and order new badges. The regular supplier informed Heinen that it would be unable to fill the order before the end of the department's fiscal year. After Chief Brewer learned of the supplier's inability to deliver the badges before November, he ordered Lt. Heinen to contact other equipment suppliers about obtaining the badges. Lt. Heinen failed to do so before August 14, 1996, when Chief Brewer went to Lt. Heinen's office to ask him why the new badges had not been ordered and to obtain the supplier's catalogues so that he could personally order new badges.

At this meeting, Chief Brewer asked Lt. Heinen why he had not purchased the badges and asked for the equipment catalogues. Heinen responded by getting up abruptly, pushing his chair back against the wall, and saying, "Because they're not the ones that I [vulgarity] work with." The chief told Lt. Heinen that the problem with the badges would not have happened if he had ordered the badges promptly. After offering some other excuses, Lt. Heinen came around his desk with his fists clenched and accused Brewer of trying to take advantage of the vendor Heinen originally had contacted to deliver the badges. After being told to sit back down, Lt. Heinen refused the order, saying, "I don't have to do [vulgarity]." The chief then explained that he was allowing the vendor to keep the part of the contract he could perform in time while finding another supplier to fulfill the rest of the contract. Lt. Heinen persisted in his accusation that the chief was trying to exploit the original vendor, and added that the chief was a "malicious manipulator." When asked to explain himself, Heinen mentioned an alleged incident involving the chief and another subordinate in the department. Pressed further on the matter, Heinen complained of the way the chief conducted budget meetings and his management style generally. Brewer assured Lt. Heinen that if he had any problems with the way he ran the department he should express these concerns sooner rather than later, when it would be impossible to address them. Lt. Heinen responded that he did not wish for any more heated confrontations in the future. Brewer left Lt. Heinen's office.

Brewer arranged another meeting with Heinen two days later on August 16, 1996. Brewer also prepared a disciplinary notice in which he cited Lt. Heinen for violating departmental regulations in his failure to order the badges and the confrontation during the meeting on August 14. The meeting on August 16 became, in essence, a pre-disciplinary hearing after Heinen expressed his desire to talk about the earlier confrontation during the scheduled meeting.

After the August 16 meeting, a written reprimand was placed in Lt. Heinen's personnel file. Heinen personally received this reprimand on August 23, 1996. When told by the chief that he could appeal the reprimand, Lt. Heinen shook his head and indicated that he did not wish to do so. Brewer then told Heinen that he planned to forget the incident and move on. Heinen expressed a similar intention to put the incident behind him.

The spirit of reconciliation was to be short-lived. On August 26, 1996, Brewer learned that an anonymous letter criticizing his management of the department was received by a member of the City Council. Brewer learned of the letter from another officer in the department, who related that he had explained to the council member that the allegations contained in the letter were untrue. Brewer then called the City Administrator, Richard Mays, and warned him that an anonymous letter had been sent criticizing Brewer's management of the department. The chief saw a copy of the letter later that day. The letter (which we reproduce in full in Appendix A) accused Chief Brewer of managing the department through manipulation and verbal abuse. For example, the letter stated: "Chief Brewer is a control freak. During his first six months of reign, he has suspended one employee, threatened to fire two employees, and everyone is wondering who is his next target?" The letter closed: "There is an eerie still air in the police station. Ranking Officers are afraid to voice their ideas and concerns openly because of Chief Brewer's dishonesty. Moreover, I am unable to sign my name for fear of reprisal against my family and me by Chief Brewer." The letter was signed, "A CONCERNED TAXPAYING VOTER." Contained within the letter was a reference to a specific incident that allegedly occurred within the police station, in which the Chief supposedly referred to his own wife as "a loser" after conversing with her on the telephone. The letter also stated that a sexual harassment complaint had been filed against Chief Brewer by another city employee.

Concluding that the letter came from inside the department, Chief Brewer promptly convened a meeting of the command staff to discuss the letter. At this meeting, one of the captains stated that he would no longer feel comfortable in staff meetings if there were an information leak within the command staff. Fearing the letter's effects on trust within the department, Brewer then began an informal investigation into the source of the letter. As part of this investigation, Brewer asked various people within the department if they knew anything about the letter. Due to the recent disciplinary problems involving Lt. Heinen, Heinen was an early suspect. During his informal investigation, Chief Brewer heard from several people that Lt. Heinen had privately claimed to have authored the letter in whole or in part.

The same day that Brewer learned about the letter, Heinen overheard a conversation between two fellow police employees regarding the letter. He was asked by one of the co-workers whether or not it was true that such anonymous letters were simply discarded by previous chiefs. Heinen responded that he did not know first-hand, but that he thought they were. Heinen did not mention that he had any knowledge of or responsibility for the letter.

Chief Brewer first spoke to Lt. Heinen regarding the letter on September 13, 1996. At the outset, the chief gave Lt. Heinen a Garrity ¹ warning, warning him that any statement he made during the investigation could not be used against him in criminal prosecution, but that failure to answer could result in departmental discipline and that his answers could be used in disciplinary proceedings. ² The chief emphasized to Heinen that it was imperative for Heinen to tell the truth, and that lying would constitute flagrant insubordination warranting termination. Heinen responded that he understood the consequences. Brewer then told Heinen that he had reliable information that Heinen's wife had written a letter condemning his management style. Brewer also told Heinen that he had information that Heinen had assisted in composing the letter. Heinen vehemently denied that his wife had written any such letter, denied any knowledge of the letter, and assured the chief that his wife would never have written such a letter. A police captain who was also present, Captain Johnson, asked Lt. Heinen if it was possible...