Macchi v. Whaley, 40606

• Decision Date: 21 August 1979
• Docket Number: No. 40606,40606
• Citation: 586 S.W.2d 70
• Parties: Dennis MACCHI, Appellant, v. Donald H. WHALEY, Clarence T. Hunter, Suzanne Hart, John A. Schicker, Jr., Mayor James Conway, Comprising the Board of Police Commissioners, St. Louis, Missouri, Respondents.
• Court: Missouri Court of Appeals

Page 70

586 S.W.2d 70

Dennis MACCHI, Appellant, v. Donald H. WHALEY, Clarence T. Hunter, Suzanne Hart, John A Schicker, Jr., Mayor James Conway, Comprising the Board of Police Commissioners, St Louis, Missouri, Respondents.

No. 40606.

Missouri Court of Appeals, Eastern District, Division One.

Aug. 21, 1979.

C. John Pleban, London, Greenberg & Fleming, St. Louis, for appellant.

David O. Danis, Samuel B. Murphy, Jr., Whalen, O'Connor, Danis & Tobben, St. Louis, for respondents.

PUDLOWSKI, Judge.

Officer Dennis Macchi, of the St. Louis Metropolitan Police Department, was dismissed from his employment following a hearing of the St. Louis Board of Police Commissioners. Macchi appealed to the Circuit Court of St. Louis, which affirmed the decision of the board. This appeal followed.

The Inspector of the St. Louis Metropolitan Police Department filed a total of nine charges and specifications against Officer Macchi. Appellant was found guilty of seven offenses, violations of the Police Manual. ¹ The Police Board ordered appellant dismissed from the Department. The charges which appellant was found guilty of were essentially that:

1. On January 26, 1977, Officer Macchi appeared before Major Brown, Deputy Chief Inspector of the St. Louis Police Department, in an unbuttoned long sleeve shirt in violation of Rule 10, Section 10.024 of the Police Manual.

2. Officer Macchi appeared before Major Brown on January 26, 1977, in a uniform which was not pressed, was dirty and greasy, and in general disarray in violation of Rule 10, Section 10.072 of the Police Manual.

3. Officer Macchi disobeyed orders from a supervisor, in violation of Rule 9, Section 9.001(b) of the Police Manual, by failing to report to the Uniform Division on January 28, 1977, to obtain replacement items for his uniform.

4. When Officer Macchi appeared before Major Brown on January 27, 1977, his hair sideburns and moustache did not conform with the requirements of Rule 7, Section 7.010(d) of the Police Manual.

5. On May 23, 1977, while a member of the Police Department, Dennis Macchi drove a motor vehicle without the proper state license plates or city sticker in violation of Rule 7, Section 7.010(c) of the Police Manual.

6. Dennis Macchi, while on the Police Department's sick list, left his home for purposes other than obtaining medical attention without notifying the Department in violation of Rule 7, Section 7.010(g) of the Police Manual.

7. On May 25, 1977, Officer Macchi reported to Major Brown's office, while off duty, failing to carry his police revolver, as required by Rule 10, Section 10.080 of the Police Manual.

Appellant contends the circuit court erred in affirming the board's order of dismissal because the findings of fact and orders issued by the board were unsupported by competent and substantial evidence.

Appellant's contention that charges 1, 2, 3 and 4 are not supported by competent and substantial evidence is without merit. The evidence shows these charges arose from incidents which took place on January 26, 27 and 28, 1977. Offenses 1, 2, 3 and 4 concern appellant's personal appearance when he met with Major William E. Brown and Captain Virgil L. Kleine. Appellant admitted that when he appeared before Major Brown he was in a dirty uniform, with his tie loosened and his shirt collar unbuttoned. Macchi also testified that when he appeared in Major Brown's office his hair touched his shirt collar and his moustache was below his lower lip. Captain Kleine testified that on January 27, 1977, he ordered Officer Macchi to report to the Uniform Inspector's Office on the following day, January 28, so he could receive new equipment. Captain Kleine was later informed and the department records indicated that Officer Macchi did not report to the Uniform Inspector's Office as ordered.

Appellant's contention that charges 5, 6 and 7 are not supported by competent and substantial evidence is equally without merit. These charges arose from incidents which took place on May 23, 24, 25 and 26, 1977. The evidence shows that Sergeant Hill saw a car, without the proper state license plates or city sticker, being driven by a man wearing a cowboy hat. Later the sergeant saw appellant near the same car wearing a cowboy hat. Major Brown testified that prior to appellant's dismissal, Officer Macchi had lost more duty time due to sick leave absences than any other officer on the force. Appellant claimed he became ill during the night of May 23. Therefore Macchi telephoned the Police Department at 6:30 a. m. to report his illness and absence. He also called Dr. Carmody, a Police Department physician, to report he had diarrhea. Apparently because appellant had just added another sick leave absence to his long history of nonattendances and he was suspected of working a job prohibited by Police Department regulations and because appellant was believed to be operating an automobile without valid license plates, Major Brown ordered that appellant's actions be scrutinized. On May 24, 1977, Major Brown assigned Officer Gary Fuhr and Sergeant Raymond Reynolds to investigate appellant. Officer Fuhr and Sergeant Reynolds were given instructions to personally contact Officer Macchi and order him to appear before Major Brown. Because appellant had called in sick Officer Fuhr and Sergeant Reynolds appeared at appellant's home, where he was supposed to be recuperating. Upon inquiring the police investigators were told, by appellant's father, that appellant had left for the evening. Officer Macchi did not inform the Department that he felt well enough to leave his home. The police investigators returned the following morning, May 25, 1977, and ordered Officer Macchi to report to Major Brown's office immediately. Major Brown testified that Officer Macchi was not carrying his revolver when he saw appellant later that day.

It is true, as appellant asserts, that the findings and orders of the Board of Police Commissioners cannot stand in the absence of substantial evidence to support them. State ex rel. Rice v. Public Service Commission, 359 Mo. 109, 220 S.W.2d 61 (1949). But it is also true that neither the circuit court nor the court of appeals may substitute its judgment for that of the board. Both the trial and appellate courts are limited to "ascertaining whether the board could have reasonably made its findings and reached its result upon consideration of all the evidence before it and whether the board's decision was clearly contrary to the overwhelming weight of the evidence." Johnson v. Priest, 398 S.W.2d 33, 35 (Mo.App. 1965). In this case we believe the above evidence substantially supports each of the offenses of which appellant was found guilty. The record indicates appellant admitted every charge against him, except the accusation that he failed to obey Captain Kleine's order to report to the Uniform Inspector's Office. Appellant offered no evidence that any of the violations did not occur as alleged. He offered only excuses. Appellant explained: His shirt was unbuttoned at the collar because it was too small. His uniform was dirty because he just got off duty. He did not follow an order because he forgot it. He left his home while on sick leave because a friend needed advice concerning marital problems. He did not have his revolver when reporting to Major Brown because his service revolver was being repaired and his back-up gun was in his locker. These explanations do not mitigate the fact that there was substantial evidence to support the board's determination.

Appellant's next contention is that the circuit court erred in affirming the decision and order of the Board of Police Commissioners because the board dismissed appellant for acts and omissions in no way connected with his duties as a police officer. Further, appellant argues that by being dismissed for "acts in his private life" his right of privacy was violated. We do not agree with either of these contentions.

Appellant alleges that "(o)utside several dress code violations . . . appellant was found guilty of no charges which were in any way connected to the performance of his duties as a police officer." The records show that aside from three dress code violations appellant was adjudged guilty of failure to obey an order from a superior, operating a motor vehicle without the proper license plates, leaving home while on sick leave without notifying the department, and failure to carry a revolver while off duty. There can be no doubt that appellant's failure to obey Captain Kleine's order to report to the Uniform Inspector's Office directly concerns the performance of his duties as a police officer. The Police Manual, Rule 9, Section 9.001(b) requires every police officer to follow the orders of superiors. Without obedience to orders, it would be virtually impossible to maintain discipline and order within the Department. Appellant's action of driving a motor vehicle without proper license plates and city tax sticker bears on the performance of his duties as a police officer because such an act is inimical to the Police Department's duty to enforce state statutes and municipal ordinances which require automobiles to be licensed and to bear a city sticker. Further, driving an unlicensed automobile violates the spirit of Rule 7, Section 7.010(c) of the Police Manual which requires:

"Every member of the Department shall, at all times maintain reasonable standards of courtesy in their relations with the public and with other members of the Department and shall conduct themselves in such a manner that no discredit will be brought upon the Department in general or themselves in particular.

Acts contrary to good conduct shall include, but not be limited to, the following:

(c) Any conduct unbecoming to a member of the Department."

The Police Department and the public at large demand that police officers obey the law. Because "(i)t is difficult . . . to maintain mutual and public regard...