Prokopf v. Whaley

Decision Date15 January 1980
Docket NumberNo. 61454,61454
Citation592 S.W.2d 819
PartiesGerald PROKOPF, Respondent, v. Donald H. WHALEY et al., Comprising Membership Board of Police Commissioners, St. Louis City, Appellants.
CourtMissouri Supreme Court

David O. Danis, Samuel B. Murphy, Jr., St. Louis, for appellants.

C. John Pleban, St. Louis, for respondent.

HIGGINS, Judge.

The Board of Police Commissioners found Officer Prokopf in violation of Rule 9, Section 9.037 of its Police Manual and suspended him for fourteen days without pay. The circuit court without findings or conclusions reversed the Board and directed reinstatement with back pay. The Court of Appeals, Eastern District, affirmed the judgment on a determination that:

"Where, as here, the rule was not offered or introduced at the administrative hearing, an appellate court . . . may not take judicial notice of the rules of the administrative agency. * * * Without the introduction of the rule into evidence or an appropriate taking of official notice of the rule, there was not substantial and competent evidence in the record to support the findings, conclusions and order of the Board of Police Commissioners."

The case was transferred to determine whether the Board's decision is supported by substantial and competent evidence on the record including presence in the record of the pertinent rule. Answered in the affirmative, the judgment is reversed and the cause is remanded.

Following an incident in the early morning hours of November 21, 1976, Mr. Jack Cupples filed a complaint against Officer Prokopf alleging physical abuse. The complaint was investigated by the department's Bureau of Inspections which classified the complaint "Not sustained." Pursuant to department procedure, Mr. Cupples appealed this classification and requested a hearing. In the Charges and Specifications prepared against and served on Officer Prokopf he was alleged:

. . . to have violated Rule 9, Section 9.037, of the Police Manual, published July, 1970, by the Board of Police Commissioners, which rule in applicable part provides that, "Any abuse of prisoners, either by word or act is wrongful and is forbidden," in that the officer slapped Mr. Jack Cupples without cause or justification.

On August 31, 1977, the Board of Police Commissioners accorded Officer Prokopf a hearing pursuant to the Administrative Procedure Act, §§ 536.010 et seq. RSMo. Officer Prokopf was present with counsel; and Mr. and Mrs. Cupples, and Officers Prokopf, Murphy, and Gorder testified. The allegedly violated rule was not formally introduced into evidence. After the hearing, and consistent with the recommendation of the hearing officer, the Board of Police Commissioners reviewed the record and found:

"7. Rule 9, Section 9.037, of the Police Manual published July, 1970, by the Board of Police Commissioners, states in applicable part that, 'Any abuse of prisoners either by word or act, is wrongful and is forbidden.'

8. Mr. Jack Cupples' charge that Police Officer Gerald Prokopf had subjected him to physical abuse by unnecessarily slapping him in the face with his open hand, without cause or justification, an alleged violation of Rule 9, Section 9.037, of the Police Manual, is supported by competent and substantial evidence on the whole record."

The Board ordered Officer Prokopf suspended from duty without pay for fourteen days.

Officer Prokopf's petition for review alleged:

a) the findings and order of the Board are unsupported by competent and substantial evidence upon the whole record;

b) the findings of the Board are based on matters not adduced at the hearing and outside the record;

c) Section 9.037, the regulation found to have been violated, is vague and indefinite;

d) the punishment imposed by the Board is not authorized by law.

Officer Prokopf's allegations a) and b) require a statement of the evidence at the hearing.

Mrs. Cupples stated that just as the police car pulled up to them in the parking lot the officer asked if everything was all right. Mr. Cupples got out of the car, walked toward the police car and said, "Tell your boss everything is fine here." The Cupples had had problems at their apartment building in the past and Mr. Cupples was personally acquainted with the captain of the district. The officer got out of the car, angrily grabbed Mr. Cupples by the collar and jerked him around. Mrs. Cupples tried to intercede to explain that her husband was 75 years old with a heart condition, but was pushed away by the officer who said, "I don't care if he's 75 or 100." The officer hit Mr. Cupples in the face, cutting him and knocking off his glasses, then threw him against the car and placed him under arrest.

Mr. Cupples testified that as he approached the police car he said, "Tell your boss everything is fine." The officer got out of his car, came towards him and replied, "Don't tell me what to do." To this Mr. Cupples replied, "I'm not telling you what to do." At no time did Mr. Cupples make any movement to strike the officer or threaten him in any way. When the officer grabbed him, the officer charged that Mr. Cupples was trying to provoke the law and with that backhanded him across the face.

Officer Prokopf's version was that in response to his question, "Is everything alright?" Mr. Cupples replied, "It's none of your fucking business what I'm doing here, I own this place." Mr. Cupples continued to verbally abuse the officers, was angry and kept pointing his finger at Officer Prokopf saying, "You're an incompetent officer and I'm going to see that you're fired. I'm going to get your job." When Mr. Cupples poked the officer with his finger, Officer Prokopf pushed his hand away. Mr. Cupples then swung his right arm back around and hit Officer Prokopf's hand knocking it into his face, knocking off the glasses and cutting him. Mr. Cupples was then arrested. Officer Prokopf did not recall pushing Mrs. Cupples.

Officer Murphy corroborated Officer Prokopf's statement that Mr. Cupples had knocked Officer Prokopf's hand into his own face. He also testified that although he could not smell alcohol on Mr. Cupples' breath, it was his opinion that he had been drinking.

Lieutenant Gorder, watch commander at the Ninth District, testified that when Mr. Cupples arrived at the station, he was excited and appeared to have been drinking.

The standard for judicial review of an action of an administrative agency is set out in Mo.Const. art. 5 § 18 and § 536.130 et seq. RSMo. In this case, the reviewing court must determine whether the action of the Board is supported by substantial and competent evidence upon the whole record. Rule 100.07(b)(3).

The testimony of Mr. and Mrs. Cupples demonstrates substantial and competent evidence to support a finding that Officer Prokopf violated Rule 9, Section 9.037 of the Police Manual as charged. If the evidence before an administrative tribunal warrants either of two opposed findings, the court is bound by the tribunal's finding. Determination of the credibility of witnesses is...

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