State ex rel. Brown v. City of O'Fallon, s. 51884

• Decision Date: 10 March 1987
• Docket Number: 51885,Nos. 51884,s. 51884
• Citation: 728 S.W.2d 595
• Parties: STATE of Missouri, ex rel. James BROWN, Appellant, v. CITY OF O'FALLON, Respondent.
• Court: Missouri Court of Appeals

Page 595

728 S.W.2d 595

STATE of Missouri, ex rel. James BROWN, Appellant, v. CITY OF O'FALLON, Respondent.

Nos. 51884, 51885.

Missouri Court of Appeals,

Eastern District,

Division Three.

March 10, 1987.

Motion for Rehearing and/or

Transfer Denied

April 9, 1987.

Application to Transfer Denied

May 19, 1987.

Michael A. Turken, St. Charles, for appellant.

Louis S. Czech, Clayton, for respondent.

PUDLOWSKI, Judge.

The O'Fallon, Missouri Board of Aldermen, [Board], voted seven to one to remove Mayor James Brown from his office. Reviewing the proceedings in accordance with Chapter 536 of the Revised Statutes of Missouri, the Circuit Court of St. Charles County entered judgment affirming the Board's action and dissolving a temporary restraining order placed upon the Board. After initial appeal to the Supreme Court of Missouri, the Supreme Court remanded the case to this court. On appeal, Brown urges numerous points which can be summarized as follows: 1) Brown was not allowed to prove bias on the part of two members of the board; 2) two members of the board were biased against him; 3) the Board improperly considered evidence of offenses which occurred in Brown's prior term in office; 4) the impeachment was based on violations of ordinances which had been repealed; 5) the city's ordinances conflicted with Missouri statutes and thus, did not apply to Brown; 6) § 79.240 RSMo is unconstitutional; 7) the meetings of the Board leading up to the vote of impeachment violated § 610.025 RSMo (The Open Meetings Act); 8) several procedural irregularities occurred in the impeachment process; 9) the Board failed to enter findings of fact and that the impeachment was not supported by substantial and competent evidence. Additionally, Brown contends that the trial court erred in regard to dissolving a temporary restraining order forbidding the Board of Aldermen to issue a Resolution of Censure to Brown. We reverse and remand on the first ground.

James Brown was inaugurated Mayor of O'Fallon on April 19, 1983 and started his second term on April 16, 1985. On September 5, 1985, the Board passed a Resolution of Censure directed at Brown. Brown, in turn, on February 18, 1986 obtained a temporary restraining order against the Board to prevent them from implementing the resolution. Board adopted a Resolution of Impeachment on February 6, 1986. On February 19, 1986 a Board of Impeachment conducted a hearing, after which it voted to remove Brown.

At the beginning of the hearing, Brown filed a Motion for Disqualification of two members of the Board, Alderman Edward Griesenauer, who as President of the Board presided over the impeachment hearing and who subsequently became acting mayor, and Alderman Jerry Davis. Brown attempted to develop a record by questioning the two challenged aldermen on several issues. This motion was denied. While neither the Board nor its presiding officer articulated a reason for this denial, from the argument between Brown's attorney and the city attorney, it appears that they relied on the fact that Brown had subpoenaed the two challenged aldermen and they believed that Brown could make an inquiry later. On cross examination of Alderman Davis, who testified during the impeachment proponent's case in chief, and on direct examination of Alderman Griesenauer during Brown's case in chief, Brown's counsel inquired as to the issues of bias. Neither alderman was disqualified. On March 6, 1986, the Board issued its findings of fact and conclusions of law. While not expressly discussing the alleged bias of Aldermen Davis and Griesenauer, the conclusions of law did state "[t]hat all members of the Board of Aldermen were qualified to sit in the Board of Impeachment, since they are empowered to do so by RSMo 79.240, and by the 'rule of necessity' they are the only body which can hear an impeachment." The Board made no finding of fact as to whether either or both of the aldermen were biased and should have been disqualified.

Our review of the impeachment proceedings in this case is governed by Chapter 536 of the Revised Statutes of Missouri, the Missouri Administrative Procedure Act. State ex rel Powell v. Wallace, 718 S.W.2d 545, 547 (Mo.App.1986). This review includes a determination of whether the Board's action "is in violation of constitutional provisions." RSMo 536.140.2(1) (1978). This requires that the proceeding be conducted by an impartial tribunal, free of bias, hostility and prejudgment. Jones v. State Dept. of Public Health and Welfare, 354 S.W.2d 37, 40 (Mo.App.1962).

RSMo 536.063(3) (1978) states that "[r]easonable opportunity shall be given for the preparation and presentation of evidence bearing on any issue raised." The precise questions before us, then, is whether the Board gave Brown a reasonable opportunity to present evidence on the issue of bias. As noted above, at the beginning of the hearing, Brown presented two motions of disqualification and requested an opportunity to make a record by questioning the two aldermen. The Board summarily denied these motions.

Respondents go to great length to demonstrate to us that Griesenauer and Davis were not infected with a fatal dose of bias. This is not the issue before us. Respondents attempt to redeem their grevious breach of due process by informing us that near the end of the hearing, they allowed Brown to cross-examine Davis after he testified against Brown. They also note that Brown called Griesenauer in his case in chief. The flaw in this reasoning is that Brown's opportunity to present evidence bearing on the issue of bias was not reasonable. The Federal Administrative Procedure Act requires that upon the good faith filing of a timely and sufficient affidavit of personal bias, "the agency shall determine the matter as a part of the record." 5 U.S.C. § 556(b) ¹ We believe that the import of this federal law is equally valid for Missouri. That is, upon the receipt of a good faith motion, the tribunal must determine whether bias exists and the challenged member should be disqualified. The reason for this is obvious. The participation of a biased member infects the entire panel. While the case is being heard and described, his influence is substantial. Further, we note that the unchallenged members may be extremely reluctant to remove the taint later if this means that the time and effort invested in hearing will be wasted. This method of determining bias was implicitly approved by our brethren in the Western District in In re Weston Benefit Assessment Special Road District, 294 S.W.2d...