Thomas v. Metzler

• Decision Date: 13 October 1998
• Docket Number: No. WD,WD
• Citation: Thomas v. Metzler, 978 S.W.2d 483 (Mo. App. 1998)
• Parties: Scott E. THOMAS, Appellant, v. David E. METZLER, Appointing Authority of The Department of Revenue, Respondent. 55398.
• Court: Missouri Court of Appeals

Page 483

978 S.W.2d 483

Scott E. THOMAS, Appellant, v. David E. METZLER, Appointing Authority of The Department of Revenue, Respondent.

No. WD 55398.

Missouri Court of Appeals Western District.

Oct. 13, 1998.

Jon E. Beetem, Hearne, Nickolaus, Green & Beetem, Jefferson City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., John R. Munich, Deputy Atty. Gen. for Litigation, Gail Vasterling, Asst. Atty. Gen., Jefferson City, for respondent.

Before HANNA, P.J., and LOWENSTEIN and LAURA DENVIR STITH, JJ.

LAURA DENVIR STITH, Judge.

Appellant Scott Thomas appeals a judgment of the circuit court affirming the decision of the Personnel Advisory Board (PAB) to terminate his employment with the Respondent Department of Revenue. Mr. Thomas argues that he had insufficient notice of the allegations upon which his termination was being based because the reasons stated in his written notice of termination from the Department of Revenue differed from the charges upon which the PAB affirmed his termination. Further, Mr. Thomas argues that the circuit court erred in affirming the termination because the allegations that he had made material misrepresentations to the Department of Revenue were not supported by competent and substantial evidence in the record. Finding both the notice and the evidence sufficient, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

Mr. Thomas was the special agent in charge of the Kansas City office of the Missouri Department of Revenue's Criminal Investigation Bureau. On Monday, August 28, 1995, Mr. Thomas called the Bureau's secretary, Ms. Pierson, around 8:00 a.m. and told her he would be working on a case in Sedalia, Missouri for the day. Mr. Thomas then went to Camdenton, Missouri and purchased several properties at a tax sale, or auction, which began at 10:00 a.m. and lasted until 12:30 p.m. At the sale, Mr. Thomas was paged by Ms. Pierson. After the sale, Mr. Thomas called Ms. Pierson and learned that his superiors at the Administrator's Office in Jefferson City were looking for him. Mr. Thomas then asked her to prepare a leave slip for three and one-half hours of leave for that day, but he said he did not specify which hours the leave was to cover or why he was requesting the leave. Ms. Pierson prepared the leave slip indicating that the hours from 1:00 p.m. to 4:30 p.m. were taken as leave.

In mid-afternoon on August 28, 1995, the Jefferson City office tried to contact Mr. Thomas again by having its secretary, Ms. Atwell, page his beeper. When Mr. Thomas returned the page, he told Ms. Atwell that he was following up on a lead for a photography case in Sedalia. Mr. Thomas did not mention the fact that he was in Camdenton or the fact that he was taking leave for a portion of the day. His superiors asked him to contact Agent Leo Grothouse, who lived in Marshall, Missouri. His telephone records show he did make a few calls to try to reach Mr. Grothouse. He never reached him, however.

Sometime after August 28, 1995, Mr. Thomas signed his name to the leave slip prepared by Ms. Pierson, which stated that he had taken leave from 1:00 p.m. to 4:30 p.m. on August 28, 1995. When he signed the slip he did not indicate the secretary had erred in indicating his leave was for the afternoon rather than for the morning, during the time he had attended the tax sale. He simply signed and returned the slip to the Administrator's Office in Jefferson City. None of his records reveal any work done by him at any time that day, other than a few attempts at calling Mr. Grothouse.

In October 1995, the state bureau manager, Karen Yokley, learned from Mr. Thomas that he had purchased several properties at the tax sale in Camdenton. Knowing the sale usually took place once a year during regular working hours, Ms. Yokley decided to investigate whether Mr. Thomas drove a state car to the auction. In the course of her investigation, Ms. Yokley discovered that Mr. Thomas had not taken leave for the hours of the sale and further concluded there was no evidence that Mr. Thomas had conducted any type of investigation in either Sedalia or Camdenton on that day. Although Ms. Yokley did not personally ask Mr. Thomas about his activities on August 28, 1995, she submitted a report of her investigation, along with a recommendation to the Administrator, Mr. Dixon, that Mr. Thomas be reprimanded. Mr. Dixon then recommended to his superiors that Mr. Thomas be terminated. Mr. Thomas was sent a notice on November 15, 1995, which stated:

This action is being taken for reasons that you misused Department of Revenue resources and materially misrepresented the performance of duties during regular working hours. In particular on August 28, 1995, and while purportedly at work, you traveled in a state vehicle to Camdenton Missouri, and attended a tax sale conducted at the Camden County Courthouse from 10:00 a.m. until approximately 1:00 p.m. That sale was conducted during regular working hours and outside of your regular assigned work area. While attending this sale, you personally purchased several properties for taxes due. Your conduct in this matter is such that your dismissal is required in the interests of efficient administration, and the good of the Department of Revenue will be served thereby.

Mr. Thomas was dismissed from employment with the Department of Revenue on November 21, 1995. Mr. Thomas appealed his dismissal to the PAB, which held a hearing on November 26, 1996, and December 19, 1996. At the hearing, the Department presented evidence that, while he had told the Bureau secretary that he was working on a Sedalia photography case on the morning of August 28, 1995, he in fact had taken off the morning for the tax sale and had then taken leave only for the afternoon. The department also presented evidence that his status report and case records did not record any work at all for that day. He had neither indicated to the other agents assigned to the cases he said he was investigating that he would be working on their cases that day, nor recorded that he had done so, although it was Bureau policy to make a record of work done.

In his defense, Mr. Thomas stated that he had gone to Camdenton on August 28, 1995, to work on a roofing case assigned to another agent in the Kansas City office. He stated that he had intended to work on the case after the tax sale, and that he had intended for the three and one-half hours of leave listed on his leave slip for that day to cover the time he had spent at the sale in the morning. He said that he had not noted the secretary's error in listing the leave as being for the afternoon that day. He claimed that the reason he had not worked on the Camdenton roofing case in the afternoon was that before he could do so he was asked by the office to try to reach Agent Grothouse, and he had spent the afternoon first trying to reach that person by telephone and then driving to Agent Grothouse's home in Marshall, Missouri in an unsuccessful attempt to locate him. Although Mr. Thomas testified that Mr. Dixon had told him to drive to the man's home, Mr. Dixon stated that he did not remember telling him to do so. Mr. Thomas did not identify any other work he had done on that day.

On January 14, 1997, the PAB issued findings of fact and conclusions of law affirming Mr. Thomas' dismissal. In its order, the PAB stated:

Regardless of whether the Appellant intended to do some work on the [Camdenton] roofing case after the tax auction, he misrepresented to Dixon where he was and what he was doing. The Board finds that the Appellant's representations to Dixon, through Atwell, that he was working on the photography case in Sedalia were false and that they were material to his duty to account accurately to his supervisor.

Mr. Thomas filed a Petition for Review with the circuit court, which affirmed the PAB ruling. Mr. Thomas now appeals the circuit court's decision.

II. STANDARD OF REVIEW

We review the decision of an administrative agency, not the circuit court's judgment. Burgdorf v. Bd. of Police Comm'rs, 936 S.W.2d 227, 230 (Mo.App.1996), citing, Ogden v. Henry, 872 S.W.2d 608, 611 (Mo.App.1994). We defer to the PAB's findings of fact and will uphold its decision unless we find the decision "is in excess of jurisdiction, unsupported by competent and substantial evidence, or is arbitrary, capricious, or unreasonable." Id. In making this determination, we consider the evidence in the light most favorable to the PAB's decision. SGOH Acquisition, Inc. v. Mo. Dep't of Mental Health, 914 S.W.2d 402, 404 (Mo.App.1996).

III. ADEQUACY OF NOTICE OF BASIS FOR DISMISSAL

Mr. Thomas asserts that his notice of dismissal was insufficient because the reasons it gave for his termination differed from the reasons for which the PAB ultimately affirmed his termination. Mr. Thomas asserts that this violated his due process right to adequate notice of the reasons for dismissal and an opportunity to be heard.

Mr. Thomas is correct that regular Missouri state employees have a property interest in their jobs. McCall v. Goldbaum, 863 S.W.2d 640, 642 (Mo.App.1993). Due process requires that, before an employee can be deprived of this property interest, the State must give the employee adequate notice and an opportunity for a hearing. Id. In accordance with these principles, Section 36.380 provides in part:

No dismissal of a regular employee shall take effect unless, prior to the effective date thereof, the appointing authority gives to such employee a written statement setting forth in substance the reason therefore and files a copy of such statement with the director.

§ 36.380 RSMo 1994. Similarly, Section 36.390 provides that "[a]ny regular employee who is dismissed ... may appeal in writing to the board within thirty days ... upon such appeal, both the appealing employee and the appointing authority whose action is reviewed shall have the right to be heard and to present evidence at the hearing." § 36.390.5 RSMo 1994.

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