Smith v. City of St. Louis

• Court: Missouri Court of Appeals
• Writing for the Court: Angela T. Quigless, J.
• Citation: Smith v. City of St. Louis, 633 S.W.3d 472 (Mo. App. 2021)
• Decision Date: 14 September 2021
• Docket Number: No. ED 109423,ED 109423
• Parties: Elizabeth SMITH, Appellant, v. CITY OF ST. LOUIS, Respondent.

633 S.W.3d 472

Elizabeth SMITH, Appellant,

v.CITY OF ST. LOUIS, Respondent.

No. ED 109423

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: September 14, 2021

Douglas B. Ponder, Jaclyn M. Zimmermann (Co-Counsel), 20 South Sarah Street, St. Louis, Mo. 63108, for Appellant.

Steven Kratky, 1200 Market Street, St. Louis, Mo. 63103, for respondent.

Angela T. Quigless, J.

Elizabeth Smith appeals the judgment entered by the Circuit Court of the City of St. Louis affirming the decision of the St. Louis City Civil Service Commission to suspend her from her employment for 15 days. Because the Commission failed to adhere to the procedural safeguards contained in its written submission process, thus violating Smith's due process rights, we reverse the Commission's decision.

Factual and Procedural Background

The City employed Smith as a paramedic in the St. Louis Fire Department. In July 2018, Smith submitted Family/Medical Leave forms to the City's Fire Division Medical Officer. Upon seeking clarification about the content of Smith's forms, the Medical Officer discovered that the doctor who purportedly signed the forms on July 30, 2018 had left his local medical practice and had not worked in Missouri for five months.

The St. Louis Fire Department Disciplinary Review Board conducted a pre-disciplinary review for Smith. During the review, Fire Chief Dennis Jenkerson advised Smith of the charges against her, gave her an explanation of the evidence, and gave her an opportunity to present any disputed facts or mitigating circumstances. Smith maintained that the physician's signature on her medical leave forms resulted from a clerical error in the physician's office, and that she did not notice the error before submitting the forms. The Disciplinary Review Board found that Smith's actions violated the Division of Fire and Fire Prevention rules and regulations that: (1) prohibit the making of untruthful and inaccurate reports and the making of misleading statements with intent to deceive; (2) require prescribed forms be completely and accurately filled out; and (3) prohibit the filing of false reports. The Disciplinary Review Board suspended Smith for 96 hours. The City's Personnel Department informed the Disciplinary Review Board that Smith's suspension must be expressed in terms of calendar days, not hours, and that the hearing must be conducted again. Therefore, Chief Jenkerson held the hearing again, reviewed the same information, and imposed a suspension of 15 calendar days encompassing eight 12-hour shifts within those 15 days.

Smith appealed to the City's Civil Service Commission. The Commission sent Smith a letter dated December 11, 2018 describing the appeal process, which stated in pertinent part:

If you wish to proceed with your appeal before the Civil Service Commission, please indicate with a check mark in one of the boxes below which type of hearing you are requesting and return the form within ten (10) calendar days to the Civil Service Commission if you wish to proceed with your appeal.

The Civil Service Commission recommends and encourages the use of the written submission process. It believes it is an efficient and effective method to get issues before the Commission.

Failure to respond, marking more than one box or failing to mark any box shall result in you waiving your right to an evidentiary hearing before a hearing officer and your appeal will be handled through the written submission process.

(Italicized emphases added). At the bottom of the letter were three boxes identifying the options available to Smith, and the letter instructed her to choose one: (1) written submission; (2) evidentiary hearing before a hearing officer; or (3) declining to proceed with the appeal. Smith marked the box for the written submission option, and signed, dated, and printed her address on the form. Nowhere did the letter state that Smith waived her due process rights if she chose the recommended written submission process "type of hearing."

Following Smith's election to proceed via the written submission process, the Commission sent Smith a copy of this process on February 1, 2019. Section III.a. of the Commission's written submission process states in pertinent part that:

The Appointing Authority will be required to file the initial submission in connection with an appeal. Said submission shall be filed within twenty-one (21) calendar days of [the] date of the Notice of Institution of Case received from the Civil Service Commission. The Appointing Authority's submission should include the following:

1. A notarized statement from the Appointing Authority or his/her designee setting forth the specific reasons for the action which is the subject matter of the appeal.

2. Copies of any pertinent department/division work rules, standards of performance or regulations pertinent to the disciplinary action ... including rules, standards or regulations allegedly violated by the appellant.

3. Notarized statements from witness and/or individuals (including but not limited to supervisors) with personal knowledge of the basis for the disciplinary action ... being appealed.

(Emphasis added). Chief Jenkerson filed the initial submission statement in support of the 15-day suspension; however, the statement was not notarized. While Chief Jenkerson included internal emails, request for discipline forms, and memoranda from the paramedic supervisor, EMS deputy chief, and medical officer to support his submission, he provided no sworn statements from these or other witnesses. Smith submitted her notarized response under Section III.b. of the written submission process,¹ raising the issue that Chief Jenkerson's statement was not notarized. Chief Jenkerson then filed his rebuttal, which was not notarized, and finally, Smith filed her reply, again pointing out that the appointing authority's statements were not notarized.

The Commission found Smith was suspended from her job for good and just cause, and upheld the 15-day suspension. Smith then filed a petition for judicial review in the Circuit Court of the City of St. Louis. The circuit court found that "[w]hile not notarized, Chief Jenkerson's statement was supported by ample evidence." The court concluded, inter alia , that the Commission's decision was supported by competent and substantial evidence upon the whole record, and was not made upon unlawful procedure or without a fair trial. The court affirmed the Commission's decision suspending Smith for 15 days. Smith appeals.

Standard of Review

We review the decision of the Civil Service Commission rather than the circuit court's decision. Section 536.140.2 RSMo. (2016);² Stone v. Mo. Dep't of Health and Senior Services , 350 S.W.3d 14, 19 (Mo. banc 2011). The Commission is an "agency" for purposes of the Missouri Administrative Procedure Act ("MAPA"), and so is required to follow the MAPA's procedure. Sections 536.010 – 536.150 ; Sapp v. City of St. Louis , 320 S.W.3d 159, 164 (Mo. App. E.D. 2010). We review whether the agency action: (1) is in violation of constitutional provisions; (2) is in excess of the statutory authority or jurisdiction of the agency; (3) is unsupported by competent and substantial evidence upon the whole record; (4) is, for any other reason, unauthorized by law; (5) is made upon unlawful procedure or without a fair trial; (6) is arbitrary, capricious or unreasonable; or (7) involves an abuse of discretion. Section 536.140.2; Stone , 350 S.W.3d at 19-20.

Discussion

Smith claims the circuit court erred in affirming the Commission's decision to suspend her for 15 days from her job as a paramedic with the City's Division of Fire and Fire Prevention. Smith contends that the Commission's decision was made upon an unlawful procedure and without a fair trial, and is unsupported by competent and substantial evidence. Specifically, Smith complains that Chief Jenkerson failed to provide any verified evidence as required under the Commission's written submission process.

Smith argues that if a notarized statement from the appointing authority is required under the written submission process, then we must reverse her 15-day suspension because Chief Jenkerson failed to provide the required notarized statement. On the other hand, she argues, if the written submission process does not require a notarized statement, then the process itself is generally defective under Missouri statute and case law, and Smith's suspension must be reversed.

Smith's proceeding before the Commission is a contested case. The MAPA defines a "contested case" as "a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing." Section 536.010(4) RSMo.; 450 N. Lindbergh Legal Fund, LLC v. City of Creve Coeur , 477 S.W.3d 49, 52 (Mo. App. E.D. 2015). "Contested cases provide the parties an opportunity for a formal hearing with the presentation of evidence, including sworn testimony and cross-examination of witnesses, and contested cases require written findings of fact and conclusions of law." Id. The administrative body does not have the discretion to determine whether a proceeding is a contested or non-contested case. Sapp , 320 S.W.3d at 162. Rather, the determination is made as a matter of law. Id. "The term ‘hearing,’ as used in section 536.010(4), means a proceeding at which a ‘measure of procedural formality’ is followed." Id. at 163.

Where the State grants an employee a right or expectation that adverse action will not be taken against the employee except upon the occurrence of specified behavior, the determination of whether such behavior occurred becomes critical, and the minimum requirements of procedural due process appropriate for the circumstances must be observed. Id. Suspension for cause, like termination of employment, implicates constitutionally-protected property interests. Id. at 164. Because Smith's suspension involved a constitutionally-protected property...