State ex rel. Rice v. Bishop, WD

• Decision Date: 08 June 1993
• Docket Number: No. WD,WD
• Parties: 61 Fair Empl.Prac.Cas. (BNA) 1610 STATE of Missouri ex rel. Sgt. Chester A. RICE, Jr., Respondent, v. Steven C. BISHOP, Appellant. 46267.
• Court: Missouri Court of Appeals

Page 732

858 S.W.2d 732

61 Fair Empl.Prac.Cas. (BNA) 1610

STATE of Missouri ex rel. Sgt. Chester A. RICE, Jr., Respondent, v. Steven C. BISHOP, Appellant.

No. WD 46267.

Missouri Court of Appeals,

Western District.

June 8, 1993.

As Modified July 22, 1993.

Rehearing Denied July 27, 1993.

Kevin E. Phillips and Dale H. Close, Kansas City, for appellant.

Michael Allan Wee, Kansas City, for respondent.

Before BRECKENRIDGE, P.J., and SHANGLER and SPINDEN, JJ.

SHANGLER, Judge.

The circuit court set aside a five day suspension of Sergeant Chester A. Rice imposed by the Chief of Police of the Kansas City, Missouri Police Department under §§ 85.500 and 84.610, RSMo 1986. The suspension was an order not subject to administrative review and so was a non-contested administrative case subject to judicial review under § 536.150. The Chief of Police appeals the judgment of the circuit court.

The five day suspension was imposed by Chief Bishop as discipline for Sergeant Rice's violation of Kansas City Police Department Personnel Policy Number 201-4, Code of Ethics and Rules of Conduct, Section II, Rule 9, which provides:

Members will conduct themselves with dignity, courtesy and efficiency.

The discipline followed the investigation of the Internal Affairs Unit concerning Rice's conduct on March 16, 1991 officially described as "an inappropriate comment to a subordinate officer."

It was the evidence that at 7 a.m. on March 16, 1991, at the end of the tour of duty for the day, Officer Sharon Laningham went into the office of Sergeant Clarence Rice to hand in her report. Laningham was a probationary officer and Rice was her supervisor. Laningham described the colloquy that ensued:

Q. Did Sergeant Rice make any comment to you on that day about your body?

A. Yes, I had had a cold for a week or so and had been froggy for lack of a better word, on the radio and he inquired as to how my cold was and I responded I probably need some medication, I need to go home and at that point, he said "You probably need a chest rub."

Q. And did you make any response to that?

A. I laughed and said "That probably wouldn't take long."

Q. Then what did you do?

A. Left the room.

Q. How did you interpret that comment?

A. I thought it was a stupid joke.

Q. Did you interpret that comment as any kind of a medical opinion or suggestion for medical help?

A. No.

There were also present at the time two other officers, John Rogers and Greg Lomas. Lomas was no longer a police officer at the time of the hearing. Laningham did not make any complaint about the occurrence. She "didn't wish for this to be an incident to come to anybody's attention." The complaint was made by Officer Rogers, who considered the comment by Sergeant Rice to Laningham inappropriate. Rogers lodged the complaint with Captain Marilyn Fortman, next after Rice in the chain of command for that unit. An investigation by Internal Affairs was conducted. Chief of Police Bishop rested the decision to discipline and suspend Sergeant Rice upon the report by Internal Affairs as well as Rice's demeanor record, personnel jacket and performance over the years. Sergeant Rice sought review of the suspension in the circuit court under § 536.150.1, RSMo 1986 and Rule 100.01. The circuit court conducted a hearing de novo as an original action under that section, entered findings of fact and conclusions of law, and rendered judgment. § 536.150.1; Phipps v. School Dist. of Kansas City, 645 S.W.2d 91, 95 (Mo.App.1982).

The formal Findings of Fact and Conclusions of Law are introduced with the preface:

This Court commends the members of the Kansas City, Missouri Police Department's Internal Affairs Division and Respondent [Police Chief Bishop] for their awareness and concern for sexual harassment or sexually offensive conduct in the workplace. Respondent's efforts to eliminate sexual harassment within the police ranks is to be praised.

Conclusion of law 6 then declares:

The Court finds the regulation was inappropriately applied to the facts of this case. What is the test to determine the validity of a regulation? The language of the regulation must be set out in terms which the ordinary person can understand without sacrificing the public interest. There are limitations in the English language when you try to be specific and manageably brief. Personnel Policy Number 201-4, Code of Ethics and Rules of Conduct, Section III, paragraph 9 does not advise officers concerning their relationship with other officers. The rule is appropriate for application in the officers' dealing with the general public. Common sense dictates that the separate and more specific regulation dealing with sexual harassment is more appropriate in this case. Neither the testimony nor the evidence indicates any harassment on the part of Relator.

[Emphasis added, citations omitted.]

The judgment entered by the circuit court adjudicated that the decision of Police Chief Bishop to suspend Sergeant Rice for five days without pay was "arbitrary and capricious as there was no substantial evidence in this instance to support the decision," and no violation of the police department personnel policy cited occurred. The court ordered that the suspension be set aside and that all lost pay and allowances be restored to Sergeant Rice.

It is evident that the judgment rests on mistaken legal premises on grounds never raised and on evidence irrelevant to the adjudication of the issue before the circuit court.

The discipline imposed upon Sergeant Rice was for violation of the police personnel policy, relating to the Code of Ethics and Rules of Conduct, that members of the police department "will conduct themselves with dignity, courtesy and efficiency." The repartee with Officer Laningham was found to be "an inappropriate comment to a subordinate officer," and in violation of the policy. The citation, decision and discipline were not about sexual harassment as such as the theory of judgment supposes--but conduct that did not comport with dignity, courtesy and efficiency.

The conclusion of law that the police personnel policy cited against Rice does not appertain to relationships with other officers, but with the general public, is gratuitous. There was no pleading or contention before the circuit court that the rule on which the sanction imposed on Rice rests was not operative as to the conduct of one officer to the other, or was not a sufficiently clear advisory to sustain the imposition of discipline. Nor was there pleading or contention that the complaint was only guised as a breach of the rule that police personnel conduct themselves with dignity, courtesy and efficiency, but was actually for sexual harassment, a subject not encompassed in that formulation.

The petition for writ of certiorari, the remedy for judicial inquiry selected by Rice for redress under § 536.150.1, contends only that the comments did not violate the police code of ethics and rules of conduct, that the suspension was unlawful for that reason and an abuse of discretion. The judgment entered by the circuit court is not responsive to the issues made by the pleadings, is therefore coram non judice, and to that extent, void. Brown v. Wilson, 348 Mo. 658, 155 S.W.2d 176, 180[13-16] (banc 1941); Keen v. Dismuke, 667 S.W.2d 452, 453[1, 2] (Mo.App.1984).

It is palpable from conclusion of law 6 that the circuit court treated the inquiry on review as a species of sexual harassment, and adjudicated the conduct alleged against Rice on that legal theory. It is also palpable from conclusion of law 7 "The Court further finds that there is no substantial evidence in the record to support Respondent's [Chief of Police Bishop's] decision" that the standard the court applied does not appertain to the review of an administrative action under 536.150.1.

It is by now established that the role of the circuit court on review of an administrative decision in a noncontested case is more encompassing than on a review of a contested case. The circuit court on a review under § 536.150 conducts a hearing de novo on an original action to determine post hoc on the facts as found by the court whether the administrative decision conforms to the constitution, the laws, and is not otherwise "unreasonable, arbitrary or capricious or involves an abuse of discretion." Phipps v. School Dist. of Kansas City, 645 S.W.2d at 95; State ex rel. Valentine v. Board of Police Commissioners, 813 S.W.2d 955, 957[2, 3] (Mo.App.1991). In a word, the circuit court does not review evidence as in contested cases, but determines evidence, and on the facts as found adjudges the validity of the administrative decision. Phipps v. School Dist. of Kansas City, 645 S.W.2d at 95. Because the court on such a review reaches judgment without reference to the adjudicative information on which the administrative decision issued, it owes no deference of credibility to that decision. Id. at 96. Accordingly, that element of the judgment, "there was no substantial evidence in this instance to support the decision [of suspension]," mistakenly applies the standard of adjudication of circuit court review in a contested case, and is erroneous. State ex rel. Fortney v. Joiner, 797 S.W.2d 848, 852 (Mo.App.1990).

This sweep of adjudicative prerogative accorded a circuit court by § 536.150.1 is foreshortened where the review involves the exercise of discretion. The provision in § 536.150.1, that in such a judicial inquiry "the court shall not substitute its discretion for discretion legally vested" in the administrative officer confines the judgment to "exclusively legal considerations." Phipps v. School Dist. of Kansas City, 645 S.W.2d at 95. It thereby takes care that the court not infringe on an authority reserved to the legislative or executive branches. Id. The power to discipline and suspend that § 84.500 vests in the Chief of Police of Kansas City involves such a discretion. The lawfulness of the exercise of that discretion was...