Holley v. Personnel Advisory Bd., KCD

• Court: Missouri Court of Appeals
• Writing for the Court: Before DIXON, P.J., PRITCHARD, C.J., and WASSERSTROM; PRITCHARD
• Citation: Holley v. Personnel Advisory Bd., 536 S.W.2d 830 (Mo. App. 1976)
• Decision Date: 29 March 1976
• Docket Number: No. KCD,KCD
• Parties: Harold B. HOLLEY, Appellant, v. The PERSONNEL ADVISORY BOARD OF the State of Missouri et al., Respondents. 27042.

Page 830

536 S.W.2d 830

Harold B. HOLLEY, Appellant, v. The PERSONNEL ADVISORY BOARD OF the State of Missouri et al., Respondents.

No. KCD 27042.

Missouri Court of Appeals, Kansas City District.

March 29, 1976.

Motion for Rehearing and/or Transfer Denied May 3, 1976.

Application to Transfer Denied June 14, 1976.

Thomas J. Downey, Jefferson City, for appellant.

Richard C. Ashby, Jefferson City, for respondents.

Before DIXON, P.J., PRITCHARD, C.J., and WASSERSTROM, J.

PRITCHARD, Chief Judge.

The Personnel Advisory Board of the State of Missouri, after hearing, affirmed the suspension and dismissal by the appointing authority, the Division of Mental Health, of appellant who was an Alcohol Counselor Assistant I of the Western Missouri Mental Health Center in Kansas City, Missouri. The Advisory Board found: 'That the preponderance of the credible evidence and testimony offered at the hearing clearly indicated that the said Harold B. Holley was incompetent and inadequate in the performance of the duties of his position and that he was frequently absent from his place of duty without authority on the ward where appellant was assigned his place of duty; That he was habitually tardy in reporting for duty or absented himself without authority frequently from duty during regular working hours; That on or about April 7, 1972, he left the institution with important statistical reports and thereafter was absent without authority for two days; That he was late for work or absent and on February 28, 1972, received a three-day suspension for failure to report to work.' The trial court affirmed the decision and order of the Personnel Advisory Board, finding that it 'is lawful, reasonable, proper and is based on competent and substantial evidence upon the whole record.'

One preliminary matter must be considered. Respondents have filed a motion to dismiss Point V of appellant's reply brief and the argument portion of his reply brief wherein he contends 'V. The judgment of the circuit court affirming the agency is unlawful because the decision of the Personnel Advisory Board did not include or was not accompanied by findings of fact and conclusions of law as required by Section 536.090.' In support of the motion, respondents say the reply brief issue was not raised in his original brief, nor in respondents' brief, but that the matter is an improper attempt to enlarge the issues by presentation in the reply brief. An inspection of the records reveals that not only did appellant raise the issue in his original petition for review (i.e., that no findings of fact and conclusions of law were made), but in his supplemental petition, filed after the findings of fact and conclusions of law were filed, wherein he pleaded that the findings of fact and conclusios of law did not accompany the original decision. The matter was further presented by Point IV of appellant's original brief here. It is apparent that no new matter was introduced. It is not necessary to consider whether Stephen & Stephen Properties, Inc. v. State Tax Com'n, 499 S.W.2d 798, 804(8, 9) (Mo.1973), is prospective only in its holding that the agency cannot postpone making its findings of fact and conclusions of law until the notice is received of the filing of the petition for review, and then later making findings and conclusions of law which will support that decision. Here, appellant filed a supplemental petition for review, and in Missouri U. Meth. Retire. Homes v. State Tax Com'n, 522 S.W.2d 745, 748 (Mo.1975) (where plaintiff amended its petition for review after the findings and conclusions were filed, as here, 'presumably to meet any new issue presented by the findings and conclusions'), it was held that there was no prejudice to plaintiff. Not only is respondents' motion to dismiss overruled, but necessarily, the U. Meth. Retire. Homes case controls and appellant's Point IV (and his reply brief Point V) are ruled against him.

Appellant's Point I is that the judgment of the trial court is unlawful because the letter of dismissal failed to give him a written statement setting forth in substance the reason for dismissal as required by § 36.380, RSMo (Amended Laws 1974, 1st Ex.Sess. p. 515, H.B.No.8, § 1); and the letter of dismissal failed to set forth specific instances as required by the Rules and Regulations of the Personnel Advisory Board.

§ 36.380 provides in part: 'An appointing authority may dismiss for cause any employee in his division occupying a position subject hereto when he considers that such action is required in the interests of efficient administration and that the good of the service will be served thereby. No dismissal of a regular employee shall take effect unless, prior to the effective date thereof, the appointing authority gives to such employee a written statement setting forth in substance the reason therefor and files a copy of such statement with the director. * * *.'

Rule 13.2 of the Personnel Advisory Board, which supplements the statute, provides 'with respect to suspension, demotion, or removal from classified service', these causes: '* * * (b) Is incompetent or inefficient in the performance of the duties of his position (specific instances to be charged); * * * (f) Has been habitually tardy in reporting for duty or has absented himself frequently from duty during regular working hours.'

The April 18, 1972, letter of the appointing authority (Western Missouri Mental Health Center) dismissing appellant is:

'You are hereby dismissed from employment by the Division of Mental Health for violation of the Missouri Personnel Board Rule 13.2.

Rule 13.2 reads as follows:

(b) Is incompetent or inefficient in the performance of the duties of his position.

(f) Has been habitually tardy in reporting for duty or has absented himself frequently from duty during regular working hours.

In an incident report dated April 18, 1972, it was reported that on April 7, 1972 you left WMMHC with important statistical reports. You then called in both April 10th and 11th, ill. This incident is important in that the papers were needed in Jefferson City and were not available.

On April 18, 1972 you called to advise you would be late for work. This was at 2:00 P.M. You reported for work about 2:25 P.M.

On February 28, 1972 you failed to report for...