Stacy v. Harris, SD 29845.

• Decision Date: 29 July 2010
• Docket Number: No. SD 29845.,SD 29845.
• Citation: 321 S.W.3d 388
• Parties: Steven Keith STACY, Petitioner-Appellant, v. Tony HARRIS, Respondent-Respondent.
• Court: Missouri Court of Appeals

321 S.W.3d 388

Steven Keith STACY, Petitioner-Appellant,

v.Tony HARRIS, Respondent-Respondent.

No. SD 29845.

Missouri Court of Appeals,Southern District,Division One.

July 29, 2010.

COPYRIGHT MATERIAL OMITTED.

John M. Albright, Poplar Bluff, MO, for Appellant.

Chris Koster, Attorney General and Michael R. Cherba, Assistant Attorney General, Jefferson City, MO, for Respondent.

DON E. BURRELL, Judge.

Steven K. Stacy (“Employee”) appeals from a judgment of the circuit court affirming a decision of the Personnel Advisory Board (“the PAB”) affirming Employee's dismissal from his merit system position with the Missouri Department of Mental Health (“Employer”). In three points relied on, Employee alleges he did not receive adequate notice of the grounds on which his termination was based; that the PAB erred in concluding it could sanction his dismissal pursuant to 1 C.S.R. 20-3.070(2)(B) instead of pursuant to Missouri Department of Mental Health Operating Regulation 2.205 (“DOR 2.205”); and that the PAB improperly substituted its judgment of the appropriate sanction for that of Employer. ¹ Because the PAB's decision was supported by substantial evidence, did not misapply the law, and did not constitute an abuse of discretion, we affirm the judgment.

Factual and Procedural Background

Employee worked from 1994 to 2006 as an “Associate Psychologist II” at Employer's Southeast Missouri Residential Services (“SEMORS”) housing facility. Employee's position was a merit system position, and was thereby subject to the state merit system law (chapter 36, RSMo ²) and ancillary administrative rules promulgated and administered by the State Division of Personnel and the PAB. As an Associate Psychologist II, Employee's responsibilities included, among other things, writing a behavior support plan (“BSP”) for each patient. Patients at SEMORS were also variously referred to by Employer as “consumers,” “clients,” or “residents.” Employee was also responsible for training the direct care staff at SEMORS on all aspects of each resident's BSP before it was implemented. Employee's training of the direct care staff was a key job component of his position and was necessary to protect both residents and staff from harm.

The Appointing Authority for SEMORS was Tony Harris (“Respondent”), the facility's superintendent. Respondent placed Employee on administrative leave while he investigated an incident in which Employee was alleged to have failed to include a note in a BSP dated September 1, 2005, regarding the necessity of protective equipment for a particular client, A.B., who had demonstrated self-injurious behavior. After conducting his investigation, Respondent sent Employee a letter dated December 6, 2006, which outlined Respondent's findings and made a “preliminary determination [against Employee] of one count of [c]lass II [n]eglect.” The letter also notified Employee that the disciplinary action being taken against him in regard to the incident involving A.B. was governed by two separate sets of rules. The first was “a disciplinary action governed by the rules of the [PAB]” and the second was “an abuse and/or neglect finding governed by [DOR 2.205].” The letter stated that Employee had been “incompetent, inadequate, careless or inefficient in the performance of [his] duties as an Associate Psychologist II.” The letter also informed Employee that he would remain on administrative leave until December 22, 2006, at which time he would serve a one-day suspension without pay.

On December 22, 2006, Respondent sent Employee a second letter. This second letter notified Employee that his employment at SEMORS was being terminated effective January 5, 2007. The second letter (as had the first) began with the following notice in bold type:

Please note: This letter contains within it two separate actions. First, there is a disciplinary action governed by the rules of the Missouri Personnel Advisory Board. Second, there is an abuse and/or neglect finding governed by Missouri Department of Mental Health Operating Regulation 2.205.

The second letter went on to inform Employee that his failure to properly train employees had resulted in a second incident at SEMORS. The letter also informed Employee that he had the right to present additional facts to Respondent and had the right to appeal his dismissal to the PAB in accordance with 1 C.S.R. 20-3.070(5) and 1 C.S.R. 20-4.010(1) (rules promulgated by the PAB).

The second letter's reference to a “second incident” concerned L.M., a SEMORS client who had a medical condition that required her to remain upright for at least thirty minutes after eating. Employee had created a BSP for L.M. that directed direct care staff to use specific restraint techniques on L.M. when she began exhibiting extreme behaviors. The BSP directed that “least restrictive methods” were to first be used to attempt to de-escalate L.M.'s behavior. If such methods did not abate the emergency, the direct care staff was then directed by the BSP to place her in “an agency approved emergency restraint until the emergency no longer exists.” The BSP also noted that “the two person restraint with or without assistance procedures may be utilized to manage the emergency situation if [L.M.] has already fallen or slipped to the floor upon her own accord.” Finally, the BSP stated, “If [L.M.] has to be restrained within 30 minutes after eating she MUST be restrained in the standing position.” (Emphasis in original). Employee was responsible for training staff on L.M.'s BSP.

On October 11, 2006, “developmental assistants” (personnel considered to fall within the category of direct care staff) Karen Cooper, Grace Wagner, and Martha McClure worked the 7:00 a.m. to 3:00 p.m. shift in the SEMORS home where L.M. resided. While Wagner and Cooper were in L.M.'s bedroom, L.M. became aggressive and attacked them. Wagner and Cooper placed L.M. in a standing restraint and called McClure to come assist them. When McClure arrived, L.M. was still struggling. All three staff members and L.M. slipped on L.M.'s comforter and fell to the floor. McClure restrained L.M.'s legs while Cooper and Wagner restrained L.M.'s upper body. Cooper and Wagner attempted to lift L.M.'s chest off the floor. L.M. became calm in less than five minutes and was released from the restraint.

SEMORS's policy at the time of the incident made allowance for only a two-person floor restraint unless a different type of restraint technique was outlined in the resident's BSP and staff was trained on the technique.

An investigation of the incident took place when L.M. subsequently alleged that the staff had abused her. McClure testified that she had never been trained on L.M.'s BSP during the three years she had worked with L.M. at SEMORS. McClure testified that she was unaware of any special requirements for any restraint techniques used on L.M. Wagner testified that she had not read L.M.'s BSP and had not received any training on it in the three months she had worked with L.M. Training records also indicated that Cooper, the third direct care staff member involved in the incident, also had not received any training on L.M.'s BSP.

On January 5, 2007, Respondent held a “due process meeting” with Employee, who asked a couple of questions and requested copies of reports Respondent had received but did not present Respondent with any additional information about the incidents. In a third letter, dated April 27, 2007, Respondent informed Employee that his dismissal from employment would not be reversed but would have a new effective date of April 30, 2007. The third letter stated that Respondent's reason for terminating Employee was Respondent's substantiation of the incidents referred to in his first and second letters. It was Respondent's contention that each of the incidents they referred to constituted instances of class II neglect as defined by DOR 2.205 and that this regulation required the termination of any employee who had engaged in two incidents of substantiated class II neglect within a 12-month period.

On May 3, 2007, Employee appealed his termination to the PAB. After holding an evidentiary hearing, the PAB affirmed Employee's termination in its written “Findings of Fact, Conclusions of Law, Decision and Order” dated June 10, 2008. In its decision and order, the PAB first found that the incident involving A.B. referred to in Respondent's first letter to Employee did not meet the necessary criteria to rise to the level of class II neglect. ³ The PAB did find, however, that the incident involving L.M. referred to in Respondent's second letter did constitute class II neglect. The PAB found that “[Employee] failed to train the direct care staff on client LM's [BSP] over a course of at least three years” and that this failure to train resulted in the direct care staff acting contrary to the plan's requirements and “placing L.M. in a prone restraint within thirty minutes of her eating on October 11, 2006.”

The PAB also noted that even if the incident involving L.M. did not occur within 30 minutes of L.M. eating and L.M. suffered no injury, Employee still failed to train the staff as required. And while the PAB found that the incident with L.M. did constitute an incident of class II neglect, because it had also determined that the incident involving A.B. did not fit within that category, the PAB disagreed with Respondent's contention that Employee's termination was mandatory under DOR 2.205. Instead, the PAB found that Employee's failure to train direct care staff on L.M.'s BSP “qualif[ied] as a cause for dismissal pursuant to Board Regulation 1 C.S.R. 20-3.070(2)(B)” and affirmed Employee's termination on that basis.

Analysis

Standard of Review

The standard for judicial review of a decision of the PAB is set forth in section 536.140. “The inquiry may extend to a determination of whether the action of the agency (1) is in violation of constitutional provisions; (2) is...