Speer v. City of Joplin, 17966

• Decision Date: 14 October 1992
• Docket Number: No. 17966,17966
• Citation: Speer v. City of Joplin, 839 S.W.2d 359 (Mo. App. 1992)
• Parties: Don SPEER, Petitioner-Appellant, v. CITY OF JOPLIN, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 359

839 S.W.2d 359

Don SPEER, Petitioner-Appellant, v. CITY OF JOPLIN, Respondent-Respondent.

No. 17966.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 14, 1992.

John A. Woodard, Clapper & Woodard, Monett, for petitioner-appellant.

Michael D. Talley, Joplin, for respondent-respondent.

FLANIGAN, Judge.

On November 10, 1989, the City of Joplin terminated the employment of appellant Don Speer, a sergeant in the Joplin Police Department. Speer appealed to the Personnel Board of the City of Joplin, (the Board). The Board, after an evidentiary hearing, upheld the termination. Speer filed a petition for judicial review in the Circuit Court of Jasper County. The court entered judgment affirming the Board's decision. Speer appeals.

Speer's first point is that the Board erred in upholding his termination "because the City failed to present competent and substantial evidence that Speer had committed any act warranting his dismissal, in that both the City and the Personnel Board relied on hearsay to support the decision to terminate."

Chapter 536, RSMo 1986, relates to rules of administrative agencies, procedures by and before agencies, and judicial review of administrative decisions. Hunter v. Madden, 565 S.W.2d 456, 458 (Mo.App.1978). It is applicable to municipal as well as state agencies. Id. See State ex rel. Leggett v. Jensen, 318 S.W.2d 353, 356 (Mo.banc 1958).

In Gamble v. Hoffman, 732 S.W.2d 890 (Mo.banc 1987), the court said, at 892:

Judicial review of administrative factual determinations is limited to whether the decision was supported by substantial and competent evidence, to whether the decision was arbitrary, capricious, or unreasonable, or to whether the agency action constituted an abuse of its discretion. The evidence is to be viewed in a light most favorable to the agency decision. If the evidence supports either of two contrary conclusions, the agency decision must prevail. When an agency sits as an administrative tribunal, determination of the credibility of the witnesses is an agency function. The reviewing court may not substitute its own judgment and the court may not set aside the administrative decision unless clearly contrary to the overwhelming weight of the evidence. (Authorities omitted.)

Although technical rules of evidence are not controlling in administrative hearings, fundamental rules of evidence apply. Mo. Church of Scientology v. State Tax Comm., 560 S.W.2d 837 839 (Mo.banc 1977). Hearsay evidence and conclusions based upon hearsay do not qualify as "competent and substantial evidence upon the whole record" essential to the validity of a final decision of an administrative body under § 22 [now § 18], art. V of the Missouri Constitution of 1945. State v. Morris, 221 S.W.2d 206, 209 (Mo.1949). State v. Simmons, 299 S.W.2d 540, 545 (Mo.App.1957).

On September 1, 1989, Police Chief Michael Wightman and Personnel Director Paul Corley gave Speer written notice of charges made against him with respect to his conduct as a police sergeant during the summer of 1989. The charges were set forth in eight counts, each accompanied by factual particulars and citations to department rules and regulations. Attached to the notice were transcripts of statements of various witnesses. Speer filed a written response to the charges.

On September 18, 1989, Speer, with his attorney, appeared at a fact-finding hearing attended by Chief Wightman, Personnel Director Corley, two police lieutenants and the city attorney. On November 10, 1989, City Manager Leonard Martin, Chief Wightman, and the acting personnel director, notified Speer that his employment was terminated and that he had a right to appeal to the Board. In August 1990, after an extended evidentiary hearing participated in by the City and Speer and their respective attorneys, the Board upheld the termination.

The record defies complete summarization. The transcript of the hearing before the Board is voluminous. Many exhibits, some quite lengthy, were introduced by both sides.

Speer does not challenge the sufficiency of the notice of the charges. In general, the Board found, in its written conclusions: Speer was habitually late for work and left work early without proper authority or knowledge of his division commander; Speer was not available to his team of officers to supervise them, answer questions, or interpret departmental policy; Speer was perceived by his team members to be incompetent in the performance of his duties; on June 28, 1989, Speer, without authorization or permission, slid a ruler under the locked office door of Lt. David McCracken for the purpose of removing, reading and disseminating confidential material contained in an envelope lying on the floor; on two occasions Speer, while on duty and without the knowledge or permission of his supervisor, went to Carl Junction, Missouri, and to Carthage, Missouri; in May 1989, Speer, while in his police uniform, attended a party at an apartment in Joplin, at which time he consumed alcohol.

The foregoing findings of the Board represented findings of guilty on five of the eight counts. One count was dismissed by the City prior to the hearing before the Board. With respect to the other two counts, the Board found that the City failed to sustain its burden of proof.

With regard to the guilty findings, the Board stated: "The Board finds that the above violations substantiate the City's reason for discharge under the City of Joplin Personnel Rules and Regulations in effect both prior to and after October 1989, and the City of Joplin Police Department Rules and Regulations, and therefore upholds the City of Joplin's discharge of Don Speer."

The City's witnesses at the hearing before the Board included Patrolman Jim Hounschell, Dispatcher Opal Roberts, Dispatcher Steve Duncan, Sgt. Terry Fowks, Dispatcher Don Moser, Personnel Director Paul Corley, Lt. Dale Owen, Cpl. Brian Simmons, Personnel Director Max Baker, City Manager Leonard Martin, Cpt. David McCracken, and Chief Michael Wightman. Speer testified in his own defense and produced Officer Gary Massa, Officer Annette Williams, and Officer J.D. Love.

Hounschell testified: I served under Speer as a patrolman in the summer of 1989. Whenever we had a problem, we were to go to the supervisor and get his opinion on how to handle it. Most of the time we were unable to locate Speer. We could not reach him by radio, and the dispatcher could not find him. Even when Speer was there, we were frequently unable to get an answer to questions. I depended on another supervisor to answer my questions. Speer was 10 minutes late almost every night. We were on the midnight shift, which ended at 7:30 a.m. As a rule, Speer would leave at 2 a.m. or 3 a.m. Speer did that on the average of seven nights out of eight. Speer's conduct was a subject of discussion among the team members, and it adversely affected team morale. Speer was not supervising his team. The team members were Speer, Simmons, Massa, Love, Cooper and me.

Opal Roberts testified: In May 1989 there was a housewarming party at an apartment in Joplin. Several people, including employees and non-employees of the City, attended the party. Speer was in uniform and drank some punch which contained alcohol. Speer had a refill.

Steve Duncan testified: In the summer of 1989 I was a dispatcher during Speer's shift. I tried to communicate with Speer but he was hard to locate. He was more difficult to locate than other supervisors. Speer's team would complain about not being able to locate Speer. I was present at the party mentioned by Opal Roberts. Speer was in uniform and had a drink.

Terry Fowks testified: In the summer of 1989 my shift overlapped the shift headed by Speer. My team was on from 4 p.m. to 2 a.m., and Speer's team was on from 9:30 p.m. to 7:30 a.m. Speer's team members would come to me and ask questions because Speer wasn't there or they could not locate him. There were occasions when the dispatcher could not locate Speer and the dispatcher would "get ahold of me." This was a common occurrence. The unavailability of Speer put a burden on me and my team members. My team members complained to me about the problems they had in covering for Speer's team. Speer's team members came to me for advice. Speer's team was more or less run by themselves without Speer being there. During his work shift, Speer left Joplin to go to Carl Junction.

Don Moser testified: During the summer of 1989 I was the midnight dispatcher. From time to time I had difficulty reaching Speer, who was the sergeant of the night shift. Other officers attempted to call Speer and got no response and would ask me to call him. I had difficulty reaching Speer about 40 percent of the time. There were times when Speer was not there. Speer would take time off and I wouldn't know he was gone. Speer was "just gone probably three or four days of the week." In the summer time the work load is increased 100 percent and you need a supervisor. Sometimes Speer would repeatedly "take off" at 2 a.m. and Cpl. Simmons would be left in charge. In my 23 years as a dispatcher, I have never had a sergeant who repeatedly took off without telling me like Speer did. No sergeant was as hard to get hold of as Speer.

Paul Corley testified with respect to the investigation of Speer, the notice given Speer on September 1, 1989, and the fact-finding hearing of September 18, 1989. Corley testified that on October 13, 1989, he recommended to the city manager that Speer be discharged for reasons which included the conduct charged in the five counts on which the Board later made findings of guilt. On cross-examination by Speer's counsel, Corley stated that there were earlier disciplinary problems with Speer. Those problems included drinking while in uniform, reporting to work late, and leaving work early.

Dale Owen testified: I made an investigation of Speer in the summer of 1989. I interviewed numerous employees and took...