Rapp v. City of Northwoods

• Decision Date: 25 April 1989
• Docket Number: No. 54922,54922
• Citation: 769 S.W.2d 815
• Parties: James RAPP, Plaintiff-Appellant, v. CITY OF NORTHWOODS, Sylvester Jones, and Charlie Dooley, Defendants-Respondents. . Division Three
• Court: Missouri Court of Appeals

Page 815

769 S.W.2d 815

James RAPP, Plaintiff-Appellant, v. CITY OF NORTHWOODS, Sylvester Jones, and Charlie Dooley Defendants-Respondents.

No. 54922.

Missouri Court of Appeals,

Eastern District.

Division Three.

April 25, 1989.

Charles Dennis Barbour, Florissant, for plaintiff-appellant.

Timothy S. Murphy, St. Louis, Thomas Michael Flach, Clayton, for defendants-respondents.

SIMON, Judge.

James Rapp, appellant, appeals the sustaining of a motion for summary judgment in favor of the City of Northwoods (City), Sylvester Jones, Chief of Police of the City (Chief of Police), and Charles Dooley, Mayor of the City (Mayor), respondents, in a petition filed by Rapp against respondents for wrongful termination of employment as a police officer for the City.

On appeal, Rapp alleges the trial court erred in sustaining respondents' motion for summary judgment on Counts I and II of his petition in that the record presented genuine issues of material fact concerning: (1) respondents' failure to comply with Chapter 536 RSMo 1986 Administrative Procedure and Review; also whether Rapp's termination was unconstitutional, unlawful, capricious or an abuse of discretion; and, (2) the existence and terms of a written contract and whether respondents breached the contract by terminating Rapp. We affirm.

The entry of summary judgment is a drastic remedy. Therefore, summary judgment is proper only when the court determines from the pleadings, depositions and affidavits in the record that there is no material issue of fact and that the movant is entitled to judgment as a matter of law. Seliga Shoe Stores v. City of Maplewood, 558 S.W.2d 328, 331[1-3] (Mo.App.1977). On appeal, we review the record in the light most favorable to the party against whom the judgment is rendered; here, the appellant, James Rapp. Id.

The City of Northwoods is a city of the fourth class. Its power and duties are derived from the legislature, primarily from Chapter 79 RSMo 1986. In June, 1986, Rapp was employed as a police officer in the City Police Department. The record does not reveal how long Rapp had been employed by the City. On June 16, 1986, Rapp was terminated by the Chief of Police for conduct and language unbecoming an officer and for insubordination. Rapp was informed of his termination by letter dated June 16, 1986. Termination was effective upon Rapp's receipt of the notice.

Rapp, by letter to the Mayor dated June 23, 1986, requested the Mayor review his termination. This request was pursuant to Ordinance 80-8, Article VI, paragraph 5 which permits an employee of the City to present a grievance to the department head and the Mayor for consideration and allows the Mayor to consult with the Board of Aldermen (Aldermen) for final resolution of the problem. The Mayor informed Rapp, by letter dated June 30, 1986, that he had reviewed the action taken by the Chief of Police on terminating Rapp and was upholding the termination. However, the Mayor informed Rapp that he would treat Rapp's letter as a request for a grievance hearing and that he would consult with the Aldermen concerning the termination. The Mayor scheduled a hearing before the Aldermen for July 22, 1986, to review Rapp's termination. At the hearing, Rapp was present and represented by counsel. After completion of the hearing, a closed personnel meeting of the Aldermen was called to vote on the termination of Rapp. The Aldermen unanimously voted to terminate Rapp. On July 23, 1986, the Mayor sent written notice to Rapp of the decision to sustain his termination by the Chief of Police.

On August 21, 1986, Rapp filed a petition against the City, the Chief of Police, the Mayor, the City Administrator, and the Aldermen. Subsequently, Rapp dismissed without prejudice as to the City Administrator and the Aldermen. In his petition, Rapp alleges the following: (1) plaintiff was hired by the City in the capacity of police officer; (2) on June 16, 1986, the Chief of Police terminated plaintiff's employment with the City; (3) plaintiff was notified of his termination from the City by letter dated June 16, 1986 and received by plaintiff on June 18, 1986; (4) in response to his termination from the City, plaintiff requested review by the Mayor and a hearing before the Aldermen; (5) the Mayor upheld the termination of plaintiff from the City police by letter dated June 30, 1986; (6) on July 22, 1986, a grievance hearing was held before the Aldermen. The Mayor again sustained Mr. Rapp's termination effective June 16, 1986; (7) plaintiff was entitled to certain procedures and rights. Those rights included the right to be terminated only for just and reasonable cause, the right to notice of his termination prior to termination, and the right to review before the Aldermen, subject to Missouri Administrative Procedure Act as set forth in Chapter 536 V.A.M.S; (8) the Mayor's and the Chief of Police's action in terminating plaintiff is unauthorized by law and local ordinance; (9) plaintiff is entitled to certain contractual rights with the City in his position as full time non-probationary police officer; (10) plaintiff was entitled to contractual rights as set forth in Ordinance 80.8 and as contained in the Personnel Handbook; and (11) plaintiff was not terminated in accordance with his contractual rights.

On March 26, 1987, the Chief of Police filed a separate answer and the City and the Mayor jointly filed a first amended answer. On August 12, 1987, respondents jointly filed a motion for summary judgment and an affidavit of the Mayor in support thereof. In the motion, respondents alleged that: (1) plaintiff was an employee at will of the City and could be discharged at will by the defendants; (2) plaintiff does not allege that he was employed under any written contract, and as a result, plaintiff was necessarily an employee at will, subject to dismissal at will under R.S.Mo 79.240; (3) fourth class cities in Missouri have no authority to enact ordinances or execute contracts which elevate the status of an employee at will, nor do they have authority to give employees civil service type status; (4) even if fourth class cities pass ordinances similar to those of the City, said ordinances are null and void if said ordinances conflict with the Revised Statutes of Missouri; and (5) plaintiff was properly discharged by a unanimous vote of the Aldermen.

The Mayor's affidavit alleged that: (1) Rapp was terminated by unanimous vote of the Aldermen; (2) Rapp was not employed by the City under any type of written contract and thus was an employee at will; and, (3) Rapp was terminated in accordance with § 79.240 RSMo 1986. Attached to the Mayor's affidavit was a certified copy of the minutes of the July 22, 1986, closed personnel meeting of the Aldermen where the Aldermen voted to terminate Rapp's employment with the City.

On September 23, 1987, the motion for summary judgment...