New Madrid County Health Center v. Poore, 16582
| Decision Date | 19 December 1990 |
| Docket Number | No. 16582,16582 |
| Citation | 801 S.W.2d 739 |
| Parties | NEW MADRID COUNTY HEALTH CENTER, Respondent, v. Cloyce POORE, Appellant. |
| Court | Missouri Court of Appeals |
Application to Transfer Denied Feb. 7, 1991.
Joseph C. Blanton, Jr., Blanton, Rice, Sidwell & Ottinger, Sikeston, for appellant.
Hal E. Hunter, Jr., New Madrid, for respondent.
Appellant Cloyce Poore appealed to the Missouri Personnel Advisory Board (the Board) after being dismissed, on February 3, 1989, as Administrator of the New Madrid County Health Center. The Board disapproved appellant's dismissal and ordered that he be reinstated and paid such salary as he had lost by reason of his dismissal. Both parties petitioned the Circuit Court of New Madrid County for review of the Board's order. The Health Center averred, among other things, that: 1) the power to dismiss employees was vested in its trustees by § 205.042.4, RSMo 1986, 1 and the Advisory Board lacked jurisdiction to hear an appeal or render a decision concerning the appellant's dismissal; 2) the position of administrator of the Health Center is not covered by any merit system; 3) the Board's findings were not supported by competent and substantial evidence; and 4) the Board exceeded its authority by substituting its judgment for that of the appointing authority. The appellant's cross-petition for review averred that the Board had properly reversed the decision of the Health Center but had improperly omitted an award of attorney's fees and other expenses incurred by the appellant as a result of his dismissal. Prayer of the cross-petition was that the cause be remanded to the Board for amendment to include an award of attorney's fees and "other expenses incurred by [appellant] as a direct result of his improper termination." The appellant also filed an answer to the Health Center's petition for review, and as an "affirmative defense" averred that the Health Center had waived or was estopped to claim that the appellant was not covered by the Missouri Merit System because that argument had not been presented to the Board. The circuit court held that the Board lacked jurisdiction and further determined that the appellant was an at-will employee and therefore had no constitutionally protected property interest in continued employment. The appellant also moved the court, pursuant to Rules 73.01 and 75.01, to reopen the case to receive additional evidence demonstrating the existence of jurisdiction in the Board. The trial court received additional evidence, before us as Plaintiff's Exhibit 21. It ruled that the exhibit, to which we shall refer further, did not confer jurisdiction of the proceeding on the Board. The appellant thereupon appealed.
We are obliged first to consider our jurisdiction. It is true that we review the decision of the Board, not the judgment of the circuit court. DeSilva v. Director, Division of Aging, 714 S.W.2d 690, 691 (Mo.App.1986); Holt v. Personnel Advisory Board, 679 S.W.2d 340, 342 (Mo.App.1984). Nevertheless, the Health Center contends in this court that the Board lacked jurisdiction to hear the appeal or to render a decision in this case, and it has been held that subject matter jurisdiction of an administrative hearing agency is a matter which may be raised at any stage of the proceeding, even for the first time on appeal. State Tax Commission v. Administrative Hearing Commission, 641 S.W.2d 69, 72 (Mo. banc 1982); Peerless Fixture Co. v. Keitel, 355 Mo. 144, 149, 195 S.W.2d 449, 451 (1946). See also Plaquemines Port, Harbor and Terminal District v. Federal Maritime Commission, 838 F.2d 536, 542, n. 3 (D.C.Cir.1988); Cunningham v. Iowa Dept. of Job Service, 319 N.W.2d 202, 204 (Iowa 1982); 2 Am.Jur.2d Administrative Law § 725, p. 625 (1962). It has further been held that the order of an administrative agency acting without jurisdiction of the subject matter is void, State Tax Commission v. Administrative Hearing Commission, 641 S.W.2d at 76, and appellate courts acquire no jurisdiction on appeal from a void order except jurisdiction to determine the invalidity of the order or judgment appealed from and to dismiss the appeal. Ross v. Conco Quarry, Inc., 543 S.W.2d 568, 571 (Mo.App.1976). We are obliged, then, to consider whether the provisions of the State Merit System (Chapter 36) apply to county health centers organized under the provisions of § 205.010 or its statutory precursors.
As the Health Center argues, § 205.042.4 provides in plain and unequivocal language that its board of trustees may appoint and remove such personnel as may be necessary and may fix their compensation. Nevertheless, the same statute authorizes the trustees to enter into contracts and agreements with federal, state, county and municipal governments. § 205.042.9. And, an employee's status as an employee at will can be changed by an employment contract or by statute, ordinance or regulation. Sadler v. Village of Bel-Ridge, 741 S.W.2d 889, 890 (Mo.App.1987). We decline to explore the appellant's convoluted argument that county health centers have been made a part of the Department of Health because the former Division of Health was incorporated into the Department of Health by the enactment of §§ 192.005 and 192.010. This argument, as we follow it, is that § 36.030.1 extended the State Merit System to employees of the agency then known as the Department of Social Services, and the inclusion of that part of the former Department of Social Services which had been called the Division of Health into the present Department of Health by the enactment of § 192.005 necessarily extended the provisions of Chapter 36 to all employees of the present Department of Health. The difficulty with this argument is that present § 192.005 does not specifically include county health centers in its transfer of functions, and it does not follow that the enactment of § 192.005 necessarily nullified the provisions of § 205.042.4.
We do believe, however, that the contract entered into by the Health Center and the Department of Health, before us as Plaintiff's Exhibit 21, obliged the Health Center to comply with the provisions of Chapter 36. The document entitled "Local Health Agency Contract--New Madrid County" contains the following provision:
It was admitted by the Health Center that there was no "local merit system" in existence, and the record indicates that the Health Center followed the procedures outlined by Chapter 36 regarding personnel actions and used personnel forms supplied by the Department of Health. We conclude that, in the circumstances presented, the Board had jurisdiction to hear Poore's appeal from his dismissal.
It is further argued that Poore, as a policy-making employee, was exempt from the provisions of the Merit System Law. Section 36.030.1 exempts "... departmental directors, three principal assistants designated by the departmental directors, division directors, one assistant designated by each division director, and one secretary for each such position...."
We do not believe the appellant falls within the exemption cited. Section 205.100 provides in terms that the county commission shall annually, at their February meeting, appoint the director of the public health center as county health officer, but there is no evidence that Poore was ever designated the "director" of the New Madrid County Health Center. The Reorganization Act of 1974 makes it clear to us that the term "department" or "division" refers to the various departments and divisions thereof to which various executive functions have been assigned. The New Madrid County Health Center is a local agency which, by the provisions of § 205.090, reports to the county commission. Further, Poore's job description, received as the Board's Exhibit 5, indicates that the supervisor of a county health center receives direction from a designated administrative superior. We cannot agree that Poore was exempt from the provisions of the State Merit Law because he was a "policy-making" employee of the Health Center.
Our decision that the appellant properly appealed to the Board does not, however, dispose of this appeal on its merits. It has been authoritatively held that the Personnel Advisory Board is a "state agency" in that it is authorized by law to adjudicate contested cases. Mills v. Federal Soldiers Home, 549 S.W.2d 862, 865 (Mo. banc 1977). The hearing itself is deemed a contested case and the procedures applicable to the processing of such hearings are those established by Chapter 536. Section 36.390.9. The proper scope of judicial review in a contested administrative proceeding was set out in Percy Kent Bag Co. v. Missouri Commission on Human Rights, 632 S.W.2d 480 (Mo.banc 1982), thus:
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