Holt v. Personnel Advisory Bd. of State, WD

• Court: Missouri Court of Appeals
• Writing for the Court: PER CURIAM
• Citation: Holt v. Personnel Advisory Bd. of State, 679 S.W.2d 340 (Mo. App. 1984)
• Decision Date: 21 August 1984
• Docket Number: No. WD,WD
• Parties: Billy E. HOLT, Appellant, v. PERSONNEL ADVISORY BOARD OF the STATE of Missouri, and Department of Corrections and Human Resources of the State of Missouri, Respondents. 35170.

Page 340

679 S.W.2d 340

Billy E. HOLT, Appellant, v. PERSONNEL ADVISORY BOARD OF the STATE of Missouri, and Department of Corrections and Human Resources of the State of Missouri, Respondents.

No. WD 35170.

Missouri Court of Appeals Western District.

Aug. 21, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled

and Denied Oct. 2, 1984.

Application to Transfer Denied

Nov. 20, 1984.

Jerry W. Venters, Bartlett, Venters, Pletz & Toppins, A Professional Corp., Jefferson City, for appellant.

James C. Martin, Chief Legal Counsel, Jefferson City, for respondents, Dept. of Corrections and Human Resources.

Before PRITCHARD, P.J., and SOMERVILLE and KENNEDY, JJ.

PER CURIAM.

Billy E. Holt (hereinafter appellant), formerly a "merit system" employee of the Department of Corrections and Human Resources (hereinafter appointing authority), appeals from a judgment of the Circuit Court of Cole County affirming a decision of the Personnel Advisory Board holding that it was "without jurisdiction" to entertain appellant's appeal from action taken by the appointing authority.

Appellant was a Social Services trainee at the Missouri State Penitentiary in Jefferson City, Missouri. Under date of November 9, 1981, he was advised in writing by the appointing authority that he was "placed on administrative leave with pay, effective close of business November 9, 1981, due to the investigation being conducted by the Cole County Sheriff's Department concerning the recent escape attempted by inmates Bill Herron and Patrick Cullen, and your subsequent arrest by the Cole County authorities on this date." ¹

On November 16, 1981, three employees of the appointing authority, comprising what was referred to as the "Administrative Review Committee", contacted appellant in the Cole County jail and, after discussing with him the contents of some investigative reports compiled by law enforcement officials, suggested that appellant voluntarily tender his resignation in order to avoid being dismissed or discharged. Appellant apparently yielded to the suggestion as evidenced by the fact that on November 16, 1981, appellant, in writing and over his signature, advised the appointing authority as follows: "I wish to submit my Resignation effective Nov. 30 1981." However, after consultation with his attorney, appellant withdrew his resignation as evidenced by the following, dated November 25, 1981, in writing, over appellant's signature, and delivered to and received by the appointing authority prior to November 30, 1981: "I, Billy E. Holt, hereby withdraw and rescind a purported resignation dated on or about November 17, 1981, for the reason that said resignation was obtained through false and misleading statements by Department of Corrections employees and officials, or statements calculated to mislead the undersigned, and was obtained at a time when the undersigned was under great stress and duress and did not have the opportunity to obtain legal advice." By stipulation of the parties the aforementioned was received by the appointing authority prior to November 30, 1981.

There is not one iota of evidence, much less competent and substantial evidence upon the whole record, that the appointing authority accepted appellant's resignation prior to November 30, 1981. As deciphered from the record, the appointing authority summarily assumed appellant had legally resigned effective November 30, 1981, notwithstanding appellant's withdrawal of his resignation prior to November 30, 1981, and before any indicia of acceptance by the appointing authority. ² Needless to say, appellant was removed from the state payroll as of December 1, 1981, without any semblance of compliance with § 36.380, RSMo 1978, ³ by the appointing authority.

Appellant timely appealed to the Personnel Advisory Board with no avail as it dismissed his appeal on the ground that it lacked jurisdiction to hear the matter as appellant's "resignation" constituted neither a "dismissal", "demotion" nor "suspension" within the purview of § 36.390.5, RSMo Supp.1983.

Appellant, pursuant to § 36.390.9, RSMO SUPP.1983⁴, appealed the Personnel Advisory Board's order of dismissal for lack of jurisdiction to the Circuit Court of Cole County. The Circuit Court of Cole County, in turn, entered an order affirming the "Decision and Order" of the Personnel Advisory Board, thereby generating an appeal by appellant to this court.

Appellant, both below and on appeal to this court, vigorously takes issue with dismissal of his appeal by the Personnel Advisory Board on the ground that it lacked jurisdiction. Among other arguments advanced, appellant contends that his ostensible resignation never became effective because it was both withdrawn by him and never accepted by either the appointing authority or the director of the Personnel Advisory Board prior to November 30, 1981. Appellant syllogistically argues that his appeal from the action of the appointing authority summarily removing him from the state payroll was, "jurisdictionally", within the purview of § 36.390.5, supra, and should not have been summarily dismissed for lack of jurisdiction.

The decision of the Personnel Advisory Board, not the judge of the Circuit Court of Cole County, is the subject of review by this court. Fleming Foods of Missouri, Inc. v. Runyan, 634 S.W.2d 183, 184 (Mo. banc 1982); and Watkins v. State Board of Registration for the Healing Arts, 651 S.W.2d 582, 584-85 (Mo.App.1983). The scope of review of administrative decisions in contested cases is capsulized in § 536.140, RSMo 1978.

At the outset cognizance is...