Ruffin v. City of Clinton

• Decision Date: 26 January 1993
• Docket Number: No. WD,WD
• Parties: Robert RUFFIN, Appellant, v. CITY OF CLINTON, Missouri, Respondent. 45915.
• Court: Missouri Court of Appeals

Page 108

849 S.W.2d 108

Robert RUFFIN, Appellant, v. CITY OF CLINTON, Missouri, Respondent.

No. WD 45915.

Missouri Court of Appeals,

Western District.

Jan. 26, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 2, 1993.

Application to Transfer Denied April 20, 1993.

John Wray Kurtz, Kansas City, for appellant.

James Dennis Conkright, Overland Park, KS, for respondent.

Before TURNAGE, P.J., and BRECKENRIDGE and HANNA, JJ.

HANNA, Judge.

The appellant, a Clinton, Missouri, police officer, appeals his demotion from sergeant to patrolman and two suspensions of five and two days each. The Circuit Court of Cole County upheld the decision of the City Council of Clinton, Missouri (City Council).

In July 1988, the Chief of Police demoted and suspended police officer Robert Ruffin. Appellant Ruffin requested and received a hearing with the Clinton City Personnel Merit Board (Merit Board) on August 4, 1988. On August 5, 1988, the non-lawyer chairman of the Merit Board prepared findings of fact. No conclusions of law were drawn. The findings were adopted by the City Council on August 10, 1988. Appellant filed a petition for review in the Circuit Court of Cole County pursuant to the Missouri Administrative Procedure Act.

This case languished in the Cole County court for nearly two years during which time appellant claimed that one sentence of the hearing transcript had been deleted. That claim was eventually resolved when appellant's expert confirmed that the hearing tape was correct. On October 3, 1990, the circuit court issued its order reversing the City Council because the findings of fact and conclusions of law were insufficient to support the decision. The case was remanded for further proceedings. On remand, the City Council instructed the city attorney to prepare more complete findings and to add the conclusions of law. The reissued findings and conclusions were adopted by the City Council on October 16, 1990, and forwarded directly to the Cole County Circuit Court. A new Petition for Review was not filed by the appellant. Subsequently, the circuit court affirmed the decision of the City Council.

Mr. Ruffin argues that a second hearing took place which was unilateral and ex parte. He claims this second hearing violated a multitude of due process safeguards, including the requirement that different persons conduct the second hearing; ¹ that the City Council failed to give the plaintiff statutory notice; ² that no oaths or affirmations were administered; that evidence was improperly received in that the exhibits referred to in the findings of fact were not marked, offered or received in evidence; ³ and that there was no indication that, on remand, all of the city council members had heard and considered all of the evidence. ⁴

The court's review is limited to a determination of whether the action of the Merit Board is supported by substantial evidence, violates the provisions of any law, or is otherwise arbitrary and/or an abuse of discretion. Sowder v. Board of Police Com'rs, 553 S.W.2d 525, 527 (Mo.App.1977). To accomplish a review within the requirements of the law requires complete findings of fact and conclusions of law. Because the trial court did not consider the findings complete in order to rule on these issues, it was obligated to remand the case for that purpose. Anderson v. Missouri Clean Water Com., 675 S.W.2d 115, 117 (Mo.App.1984).

The original findings drawn by the City Council were conclusionary and of a very general nature in describing the evidence of the violations. It was these findings and conclusions that appellant Ruffin attacked when he filed his petition for review and motion to dismiss the findings of fact in the circuit court. Mr. Ruffin's motion was sustained and the court's remand order reversed the decision of the City Council "... on the basis that there were insufficient findings of fact and conclusions of law to support the decision." The matter was remanded to the City Council for further proceedings. The City Council understood the court's order to mean that the original findings of fact were not sufficient to support its decision. The court's remand order was entered on October 3, 1990, and on October 16, the City Council entered more complete findings of fact and conclusions of law.

The court's remand was proper because a meaningful review of the case is frustrated by inadequate, abbreviated and incomplete findings of fact, which are mandated by § 536.090. This requirement was discussed in Century State Bank v. State Banking Bd., 523 S.W.2d 856 (Mo.App.1975). The circuit court's obligation to provide meaningful review of the case cannot be accomplished in the absence of specific findings of fact. Webb v. Board of Police Com'rs, 694 S.W.2d 927, 928 (Mo.App.1985).

The court's remand order may be interpreted to authorize the Board to reopen the hearing and have additional evidence presented or, otherwise, for the Board to formulate findings of fact and conclusions of law based on the evidence already presented to it. Century State Bank, 523 S.W.2d at 861. The respondent Board chose not to have a further hearing, but rather to restate its findings and conclusions with more specificity and completeness. There was not a second hearing on October 16, 1990, where evidence was taken. The record does not support this allegation as there is no evidence to suggest a hearing was held and appellant's arguments to the contrary are not persuasive. It is apparent that the City Council met only to decide whether the findings and conclusions were correct and to sign off on them. Therefore, the question is whether the findings made on October 16 are supported by substantial evidence of the August 3, 1988 hearing. We do not reach the issue of whether these procedural safeguards were denied petitioner Ruffin in a second hearing because a review of the agency's hearing record leaves us with the unmistakable position that a second hearing did not occur. Therefore, appellant's first point, that a second hearing was held which abrogated his due process rights, is denied.

Three of the appellant's points on appeal are directed to the hearing before the Merit Board claiming his constitutional rights were denied citing various examples. First, appellant argues that no oath or affirmation was administered to any of the witnesses. Section 536.070 states that "[o]ral evidence shall be taken only on oath or affirmation." The record indicates that the evidence was presented without the witnesses being sworn. Appellant argues this violated a procedural requirement but makes no further argument nor provides any case citation. Appellant does not explain his failure to make argument or produce case law as required by Rule 84.04(d) & (e). See Price v. American Bank of St. Louis, 793 S.W.2d 593, 598 (Mo.App.1990). We consider the point abandoned. ⁵

There were a number of records and documents used in the hearing below. It is apparent that the findings of fact made by the City Council are based, at least in part, on those documents and records. None of the documents were identified, offered or received in evidence. This informality is not a practice to be encouraged because for a reviewing court, whether the circuit or appellate court, it presents a fragmentary and incomplete picture of the evidence. Such informality makes it most difficult for a reviewing court to obtain a clear understanding of the facts and the practice should be discouraged. McIntyre v. McIntyre, 377 S.W.2d 421, 423 (Mo.1964). This is true even though, as in our case and in McIntyre, neither party objected to this procedure. Id. at 423.

The plaintiff complains in this court that evidence was improperly received because "[r]ecords and documents of the agency which are to be considered in the case shall be offered in evidence so as to become a part of the record...." § 536.070(5). It is not reversible error in this case because the very party complaining that these documents were not marked and offered into evidence was the party who questioned the witness about them. The vast majority of all the evidence came from questions from Mr. Ruffin's attorney (a different attorney than his attorney on appeal). The witnesses testified from the documents upon questions by appellant's attorney. No objection was made. Documents prepared by another person are frequently hearsay. When they are not objected to, they may be considered for whatever they are worth. Mills v. Federal Soldiers Home, 549 S.W.2d 862, 867 (Mo. banc 1977). Mills was an administrative agency proceeding before the personnel advisory board considering Mr. Mills' employment with the Soldiers Home. Hearsay testimony was received without objection. For support, the court cited § 536.070(8): "Any evidence received without objection which has probative value shall be considered by the agency along with other evidence in the case."

Therefore, the information contained in these documents and reports was received in evidence by way of oral testimony, without objection, although the documents were not identified, marked or offered in evidence. The evidence has probative value sufficient to sustain the agency's findings and decision.

The appellant next claims that § 536.080.2 requires that each official of an agency who renders or joins in rendering a final decision shall, prior to such final decision, either hear all the evidence, read the full record including all the evidence, or personally consider portions of the record cited or referred to in the arguments or briefs. Appellant claims there was no certification that this happened.

Appellant does not suggest there was a change of membership in the administrative body on remand. We will not assume that the City Council was different on remand than on the date when the evidence was heard. Nor will we assume that on remand, if the membership of the City Council was different, that each new member did not...