Perry v. City of St. Louis Civil Service Com'n, 68767

• Decision Date: 28 May 1996
• Docket Number: No. 68767,68767
• Citation: 924 S.W.2d 861
• Parties: James PERRY, Plaintiff-Respondent, v. CITY OF ST. LOUIS CIVIL SERVICE COMMISSION, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 861

924 S.W.2d 861

James PERRY, Plaintiff-Respondent, v. CITY OF ST. LOUIS CIVIL SERVICE COMMISSION, Defendant-Appellant.

No. 68767.

Missouri Court of Appeals,

Eastern District,

Division Two.

May 28, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 10, 1996.

Tyrone A. Taborn, Edward J. Hanlon, Kathleen G. Tanner, St. Louis, for appellant.

Ronald L. Rothman, Clayton, for respondent.

DOWD, Judge.

The Civil Service Commission of St. Louis ("Commission") appeals from the judgment of the circuit court reversing the Commission's dismissal of a City of St. Louis ("City") employee James Perry. We affirm and remand.

Perry was employed by the City as a Correctional Officer II in the Municipal Jail since 1981. In March, 1992, Perry's supervisor received a letter from the Director of Personnel alleging Perry was not residing in the City but was residing at the St. Louis County home of his mother. This letter prompted an investigation of Perry's residency that concluded Perry did not reside in the City. Perry was advised of the reasons for his proposed dismissal, and he defended himself against the charges at a pre-termination review. The pre-termination review determined Perry violated the City residence requirement and avoided payment of personal property tax as required by the personnel regulations. Perry's supervisor dismissed Perry on these grounds.

Perry appealed his dismissal to the Commission. He asserted that he lived with his grandmother in a house on Rowan Street in the City. To show this, Perry offered the following evidence. Mr. Burton, an insurance broker, testified that he sold Perry insurance to cover his personal belongings in the Rowan house. Burton also testified to visiting the Rowan house about fifty times over the past eight years, and Perry was there approximately half of the time. A neighbor of sixteen years to the Rowan house testified to seeing Perry at the house frequently, eating his meals and sleeping there. He also testified to seeing Perry's personal belongings, such as his clothes and stereo, in the house. Other witnesses also testified that they saw Perry's personal property at the Rowan address. A friend of Perry testified that he would often drive Perry and would pick him up and drop him off at the Rowan address. Co-workers and friends of Perry also testified to driving Perry to and from work, picking him up and bringing him home to the Rowan address. Perry's ex-wife testified she dropped off and picked up their son at the Rowan address during Perry's visitations with him. Perry's mother denied the allegation Perry lived with her in St. Louis County. Perry also offered various documents in which he listed the City as his address. These included savings account signature cards from the St. Johns Bank and Trust Company, charge account statements from Kriegel's and Famous-Barr stores, Perry's Missouri Driver's License, and a neighborhood video club membership.

The Commission, however, found Perry did not live in the City with his grandmother but instead lived at the County home of his mother. In so doing, the Commission relied on documents in which Perry indicated his residence was his mother's house in the County. On applications for Missouri Title and/or License for two automobiles, one in 1988, and one in 1989, Perry listed the County as his address. Other documents listing Perry's address in the County included a Retail Installment Sale Contract, an insurance binder, and agreements with a company that rents pagers. Furthermore, Personal Property Tax receipts showed (and Perry admitted) he paid personal property taxes on two automobiles to St. Louis County ("County") in 1989, 1990, and 1991. The Commission concluded Perry was dismissed for good cause because (1) he violated the City residency requirement, and (2) he "avoided" payment of City taxes, a cause for immediate dismissal pursuant to the City regulations.

Perry appealed the Commission's order to the circuit court. The circuit court reversed the Commission finding no support in the record to conclude that Perry lived in the County. Rather, the circuit court found substantial and competent evidence to support the conclusion that Perry lived at the Rowan house in the City. Furthermore, the circuit court reversed the Commission's dismissal based on Perry's tax avoidance because Perry was unaware that registering his automobiles in and paying taxes to the County violated the requirements of his employment with the City and because the evidence did not show Perry "avoided" paying taxes.

Our scope of review is limited to the order of the Commission, the administrative agency in this case, and not the decision of the circuit court. Fehrman v. Blunt, 825 S.W.2d 658, 661 (Mo.App. E.D.1992). This reviewing authority "is limited to a determination of whether the Commission's findings are supported by competent and substantial evidence on the record as a whole; whether the Commission's decision is arbitrary, capricious or unreasonable; whether the decision involves an abuse of discretion; whether for any other reason, the decision is unauthorized by law; or those other grounds as found in § 536.140.2, [RSMo 1994]. This court may not substitute its judgment for that of the Commission and must defer to the Commission's findings of fact." Wirtz v. Civil Service Commission of St. Louis County, 646 S.W.2d 384, 385 (Mo.App. E.D.1983) (internal quotations omitted). Whether evidence is substantial requires that the evidence "supports the discretionary determination" of the Commission. Becker v. Missouri Department of Corrections and Human Services, 780 S.W.2d 72, 76 (Mo.App. E.D.1989). We must consider the evidence "in a light most favorable to the administrative agency, together with all reasonable inferences which support it, and if the evidence would support either of two findings, the court is bound by the administrative determination." Id. at 76-77. The credibility of witnesses is for the determination of the Commission. Edmonds v. McNeal, 596 S.W.2d 403, 408 (Mo. banc 1980).

Article VIII, Section 2, of the City Charter states: "all officers and employees must reside in the City ... during the entire tenure of his or her employment ... and failing or ceasing so to reside, shall forfeit their office of employment." The guidelines and procedures for City management personnel to enforce this residency requirement are contained in the Department of Personnel Administrative Regulations (regulations). The regulations provided that where evidence exists that a City employee has violated the residency requirement, the employee is permitted to introduce offsetting proof. The regulations state that the single best piece of evidence of residency is a paid current personal property tax receipt from the City of St. Louis. Indeed, if the employee has a current personal property tax receipt from another jurisdiction, the employee is "deemed to be in violation of the residency requirement." The regulations explain the reason personal property tax receipts are ascribed such probative value is because, by Missouri statute, "tangible personal property is to be declared and taxes paid in the county in which a person resides."

The regulations, however, acknowledge personal property tax receipts are not always determinative of residency and may inaccurately reflect the...