Missouri Veterans Home v. Bohrer, No. WD

• Court: Missouri Court of Appeals
• Writing for the Court: Before LOWENSTEIN; LOWENSTEIN
• Citation: Missouri Veterans Home v. Bohrer, 849 S.W.2d 77 (Mo. App. 1993)
• Decision Date: 12 January 1993
• Docket Number: No. WD
• Parties: MISSOURI VETERANS HOME, Appellant, v. Robert BOHRER, Respondent. 46216.

Page 77

849 S.W.2d 77

MISSOURI VETERANS HOME, Appellant, v. Robert BOHRER, Respondent.

No. WD 46216.

Missouri Court of Appeals Western District.

Jan. 12, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 2, 1993.

Application to Transfer Denied April 20, 1993.

Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for appellant.

James W. Gallaher, II, Jefferson City, for respondent.

Before LOWENSTEIN, C.J., and SHANGLER and HANNA, JJ.

LOWENSTEIN, Chief Judge.

This is an appeal by the Missouri Veterans Home (Home), the appointing authority, from an adverse ruling to its dismissal of the respondent, Bohrer, as the administrator of the Home's facility in Mexico, Missouri. The Personnel Advisory Board (Board) ordered reinstatement with back pay after issuing findings and conclusions under § 536.080.2, RSMo 1986. The Cole County Circuit Court affirmed. Review is guided by § 536.140 RSMo 1986, and is limited to a determination of whether the Board's order is supported by competent and substantial evidence viewed in a light most favorable to the decision. Ferrario v. Baer, 745 S.W.2d 193, 195 (Mo.App.1987). This court may not substitute its opinion for that of the Board, and if the evidence supports a finding either way, this court must uphold the Board. Rockenfield v. Missouri Department of Corrections and Human Resources, 740 S.W.2d 230 (Mo.App.1987). In addition, the agency decision is subject to review as to whether it was arbitrary, capricious or unreasonable, or results from an abuse of discretion. Id.

The Division of Veterans Affairs runs the veterans home, a residential facility. By letter, a division official dismissed administrator Bohrer from the Mexico facility giving the following reasons: "continued use of improper judgment and inadequate decision making, resulting in residents and employees facing unnecessary danger or liability; improper handling of information about budget, personnel policy, and resident affairs, resulting in a continued atmosphere of distrust and confusion among staff; and your inability or refusal to recognize and cope with significant managerial problems, resulting in the inefficient delivery of healthcare services." Paraphrased, the dismissal of Bohrer referred to the tape recording of a conversation with an employee and discharging a resident without proper consultation with a doctor or the director of nursing. In addition, the dismissal cites laundryroom employees' complaints with vacation schedules; failure to inspect the fire alarm system and elevators and inadequate record keeping. As pertinent to this appeal, the letter also stated: "At a party in 1989 you asked a member of your staff in the presence of two other members of your staff, to remove her blouse. At a December 1989 staff meeting you asked the same employee, again in front of other staff, if she would wear the sweater she had on without the blouse underneath when the weather got warmer. After an outing to the Octoberfest in 1988 to which you provided transportation in your camper for members of your staff, you commented to a facility visitor and to one of the state auditors regarding the same employee above, that 'I got her in my bed.' * * * When the activity director overheard you discussing mileage reimbursement to another employee for assisting a resident outing, she asked if reimbursement was being provided. You responded 'yes, but keep it quiet.' Other employees who assisted were not reimbursed."

Under applicable law, state agencies must advise merit employees of the reasons for dismissal. At the hearing, the Home did not pursue several of the reasons cited in the letter for Bohrer's dismissal. Consequently, those reasons were abandoned on appeal. And to further confuse, the Board's order did not contain several matters the Home relied on for dismissal, which is reviewed in Point III infra. The Home's shifting of theories during the proceedings of this case is to say the least confusing and impinges on the employee's ability to defend the charge. Cf. Kramer v. Mason, 806 S.W.2d 131, 134 (Mo.App.1991). In any event, the necessary facts relating to the points now presented on appeal will be presented in the appropriate point. Suffice it to say, the Home bears the burden in a contested case of sustaining the reasons for Bohrer's dismissal. Gamble v. Hoffman, 695 S.W.2d 503, 506 (Mo.App.1985); Tonkin v. Jackson County Merit System Commission, 599 S.W.2d 25, 31 (Mo.App.1980). There is no quarrel here the appointing authority may dismiss an employee for cause when required in the interest of efficient administration and "for the good of the service." Section 36.380, RSMo 1986. In addition, the authority also may dismiss for cause when an employee is incompetent, inadequate, careless or inefficient in the performance of duties.

I.

In its first point the Home asserts, "once the Board found certain facts were true", it "could not substitute its judgment for that of the appellant by claiming the dismissal was 'not for the good of the service'." The Home, in essence claims an abuse of discretion by the Board in finding certain factual allegations the Home outlined in the dismissal letter as true, but then incorrectly concluded the Home improperly fired the merit employee. The three specific findings are listed as follows:

A. Improper Discharge of a Patient

The evidence showed Bohrer discharged a patient who had emotional and behavior problems. The Home contended he took the action without properly consulting other Home officials as per established procedures. For example, the Home alleged he did not clear the matter through a physician or the nursing staff director before discharging the patient. The evidence shows the Home's published procedure for discharge allows a doctor to discharge a resident if doing so served the best interest of the Home. The Home normally made this type of discharge for "medical or behavioral problems".

The evidence also reveals the Home brought Bohrer's oversight with the above-mentioned patient to the attention of the Veterans Hospital located in Columbia. The Board found: "On January 24, 1990, the Appellant (Bohrer) decided to discharge a resident on the basis of the resident's behavior problems. The behavior problems were known to the Medical Center and its staff, and the potential need for a discharge on that basis had been previously been discussed. The appointing authority's policy did not require prior consultation by the Administrator with any other authority before authorizing the discharge. All procedural requirements and policies for the discharge were met and followed prior to the completion of the discharge".

B. Failure to Repair Elevators and Fire Alarm System

The evidence showed Bohrer did not timely have needed work done on the elevators and the fire alarm system. However, lack of funds in the budget as related to him by personnel of the Home prevented the necessary repairs. The Board held: "The fire alarm system at the home was faulty. The appellant was advised by the plant maintenance engineer that the fault could not be cured without a reduction in the high humidity levels in the building. The appellant caused a request for a special appropriation to be submitted, and the request was pending at the time of his...