McNeal v. Bequette, 39746

• Decision Date: 25 July 1978
• Docket Number: No. 39746,39746
• Citation: 571 S.W.2d 657
• Parties: Theodore D. McNEAL, George T. Mehan, Edward Walsh, Salees Seddon, Mayor John Poelker, comprising the Board of Police Commissioners of St. Louis, Missouri, Defendants-Appellants, v. Richard BEQUETTE, Plaintiff-Respondent. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 657

571 S.W.2d 657

Theodore D. McNEAL, George T. Mehan, Edward Walsh, Salees Seddon, Mayor John Poelker, comprising the Board of Police Commissioners of St. Louis Missouri, Defendants-Appellants, v. Richard BEQUETTE, Plaintiff-Respondent.

No. 39746.

Missouri Court of Appeals, St. Louis District, Division One.

July 25, 1978.

Motion for Rehearing and/or Transfer Denied Sept. 15, 1978.

Application to Transfer Denied Nov. 6, 1978.

Whalen, O'Connor, Danis & Tobben, David O. Danis, Daniel G. Tobben, St. Louis, for defendants-appellants.

London, Greenberg & Fleming, C. John Pleban, St. Louis, for plaintiff-respondent.

McMILLIAN, Judge.

The St. Louis Metropolitan Board of Police Commissioners (hereinafter the Board), appeals from a judgment entered by the circuit court of St. Louis County reversing an administrative decision by the Board suspending respondent Richard Bequette, a police officer, for four days without pay. For reversal of this judgment the Board argues that the trial court erred in reversing the Board's finding that respondent was insubordinate and disrespectful to a superior officer because its finding was supported by competent and substantial evidence on the whole record. For the reasons discussed below, we reverse and remand with directions to the trial court to reinstate and sustain the decision of the Board.

The facts in this case are long and convoluted. Suffice it to say there was considerable confusion surrounding an order given to respondent by his supervisor, Sergeant Buchanan; that is, whether respondent was still obliged to follow the order after he went off duty; whether respondent was relieved of his duty by another sergeant; and whether respondent related the entire facts surrounding the order to the second sergeant. ¹ The entire controversy culminated in a telephone conversation between Sergeant Buchanan and respondent in which respondent was allegedly insubordinate and disrespectful to Buchanan. ² After a hearing, the Board found that respondent was insubordinate and suspended him for four days without pay. The trial court reversed the Board's finding on the ground that it was not supported by competent and substantial evidence.

What was actually said in this conversation is known to only two parties: Bequette and Buchanan. Respondent admitted most of the language Sergeant Buchanan attributed to him but provided a less offensive context of his remarks than that testified to by the sergeant. Sergeant Buchanan was unable to recall if he said the language attributed to him by respondent. In any event, who offered the more reliable version of the conversation is a matter of credibility, and while we may have decided the case differently as an original proposition, we, as well as the trial court, must defer to the administrative tribunal's findings of fact. Neither a circuit court nor an appellate court may substitute its judgment for that of the administrative board. State v. Simmons, 299 S.W.2d 540, 542 (Mo.App.1957). Rather, our standard of review is limited; we may not set aside the board's decision unless it is not supported by competent and substantial evidence on the whole record. § 536.140(2)(3) RSMo 1969; E.g., Board of Education, Mt. Vernon Schools v. Shank, 542 S.W.2d 779, 782 (Mo. banc 1976); State ex rel. Hoffman v. Public Service Comm'n, 550 S.W.2d 875, 878 (Mo.App.1977). In addition, the determination of the credibility of witnesses is a matter for the board. E.g., Bd. of Education, Mt. Vernon Schools v....