Schrewe v. Sanders, 57034

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM; HENLEY, P.J., DONNELLY, C.J., and MORGAN; FINCH
• Citation: Schrewe v. Sanders, 498 S.W.2d 775 (Mo. 1973)
• Decision Date: 10 September 1973
• Docket Number: No. 57034,No. 2,57034,2
• Parties: Albert SCHREWE, Appellant, v. James L. SANDERS et al., Respondents

Page 775

498 S.W.2d 775

Albert SCHREWE, Appellant, v. James L. SANDERS et al., Respondents.

No. 57034.

Supreme Court of Missouri, Division No. 2.

Sept. 10, 1973.

Hale W. Brown, Kent E. Karohl, Kirkwood, for appellant.

Robert W. Van Dillen, City Counselor, John J. Fitzgibbon, Associate City Counselor, St. Louis, for respondents.

HOUSER, Commissioner.

This is a proceeding brought under the Administrative Procedure and Review Act Chapter 536, RSMo 1969, V.A.M.S., to review a decision of the Board of Police Commissioners of the City of St. Louis finding Patrolman Albert G. Schrewe guilty of conduct unbecoming of an officer and removing and dismissing him from the police department. The circuit court affirmed the board's action and Patrolman Schrewe filed a notice of appeal prior to January 1, 1972.

Two charges in writing were laid against appellant.

The first was a charged violation of Rule 7, § 7.102 of the Police Manual of the St. Louis Metropolitan Police Department relating to 'Conduct Unbecoming of an Officer,' and the specification was 'That Patrolman Albert Schrewe, Department Serial Number 2060, while assigned to the Sixth Police District of the St. Louis Metropolitan Police Department, at approximately 5:40 P.M. on June 6, 1967, while conveying George E. Murray, who was strapped to a stretcher in the rear of a cruising patrol car, did near 7917 North Broadway, stop said vehicle and enter the rear of said vehicle and strike George E. Murray several times about his body with his nightstick.'

Appellant challenges this as incomplete and insufficient to advise him as to the nature of the charge, contending that he has a right to be advised as to the exact nature of the complaint made against him by some charge equivalent to an indictment or information, and that under Charge 1 his right to be advised of the charge was denied him; that the mere striking of one in custody under provocation with reasonable and necessary force would not be in violation of Rule 7. By implication appellant is asserting the insufficiency of the charge on the ground that it does not allege that he struck Murray without provocation and with unreasonable and unnecessary force.

A charge under the police manual must be stated specifically and with substantial certainty, although the technical precision required in an indictment or information is not necessary. 'It is sufficient if the charges fairly apprise accused of the offenses for which it is sought to remove him.' 62 C.J.S. Municipal Corporations § 578, p. 1132. Thus a charge of 'general inefficiency' is sufficient. McCallister v. Priest, 422 S.W.2d 650 (Mo. banc 1968). Here appellant is charged with striking a certain person several times about the body while 'strapped to a stretcher,' at a certain time and place. This specification is sufficient to fairly and adequately advise Patrolman Schrewe that he is charged with striking a helpless private citizen. The allegation that the individual was strapped to a stretcher made it unnecessary to further allege that the striking was without provocation and with unreasonable and unnecessary force. These elements are plainly implied.

Appellant's second point is that the findings and conclusions of the board of police commissioners were not rendered by a majority of the board members who heard the evidence, observed the witnesses and determined the vital issue of credibility; that appellant was thereby denied a full, fair, and impartial hearing. Between time of hearing and time of decision two of the four members of the board who participated in the hearing were replaced by two new members. The new members read the transcript and evidence before joining in the unanimous decision rendered. The incoming commissioners having read and considered the transcript and evidence it was not necessary to conduct a second hearing. The applicable statute, § 536.080, subd. 2., ¹ recognizes that an agency official may join in rendering a final decision if, prior to such decision, he reads the full record including all the evidence. In Dittmeier v. Missouri Real Estate Commission, 316 S.W.2d 1 (Mo. banc 1958), this Court held that under the then-existing statute ² a second hearing of pending matters was not necessary upon appointment of a new member of the board of real estate commissioners; that if a newly appointed commissioner read the evidence presented to the other commissioners, an opportunity need not be afforded to present arguments to the commissioners rendering the decision. That it is not necessary that a member of an agency who participates in a decision shall have participated in the hearing, but that he may act officially on the basis of the written record alone, is attested by the rule applicable to record review by an administrative body of the findings of a referee who hears the witnesses and makes the initial findings. In such case the administrative body is not bound by the findings of the referee but may (and it is its duty) to review the record and determine therefrom the credibility of the witnesses and the weight to be given their testimony, resolve conflicts in the testimony, and as a fact finding tribunal reach its own conclusions, independently of the findings made by the referee. Brown v. Griesedieck Western Brewing Co., 250 S.W.2d 803, 809(3, 4) (Mo.App. 1952). In Gearhart & Otis, Inc. v. Securities and Exchange Commission, 121 U.S.App.D.C. 186, 348 F.2d 798, 802(6) (1965) the court stated the rule to which we adhere: 'The decisions of numerous courts ³ and administrative agencies ⁴ establish that, even without agreement of the parties, a member of an administrative agency who did not hear oral argument may nevertheless participate in the decision where he has the benefit of the record before him.' In Lacomastic Corporation v. Parker, 54 F.Supp. 138, 142(8) (D.Md. 1944), seven federal cases were cited for the well-established proposition that '* * * the fact that the member or members of the administrative agency who ultimately decide the case have not heard the witnesses or argument or prepared the findings of fact and conclusions of law does not constitute a denial of due process.' We therefore hold that since § 536.080, subd. 2, permits a commissioner to join in rendering a final decision if prior thereto he reads the full record, and since no rule demands that he be personally present to hear and observe the witnesses as they testify and procedural due process does not necessarily require it, the hearing granted in this case was reasonable and adequate where all of the testimony and evidence was before all members of the board who joined in the decision. See McGraw Electric Co. v. United States, 120 F.Supp. 354, 358--359 (E.D.Mo. 1954), affd., 348 U.S. 804, 75 S.Ct. 45, 99 L.Ed. 635.

Appellant claims prejudice by the very fact that the board of police commissioners heard and considered evidence on Charge 2, in which appellant was charged with violation of Rule 7, § 7.101 of the police manual relating in applicable part to failure to obey the orders of a superior officer. The board, however, upon due consideration, found appellant not guilty on Charge 2....