Tonkin v. Jackson County Merit System Commission

• Court: Missouri Court of Appeals
• Writing for the Court: DIXON; Meyers
• Citation: Tonkin v. Jackson County Merit System Commission, 599 S.W.2d 25 (Mo. App. 1980)
• Decision Date: 07 April 1980
• Docket Number: No. WD,WD
• Parties: Max TONKIN, Plaintiff-Appellant-Respondent, v. JACKSON COUNTY MERIT SYSTEM COMMISSION; Richard Hammett, Chairman; Karen Ingram, Member; Paul L. Kartsonis, Member; Susan Wilkinson, Member; Neal E. Millert, Member; and County of Jackson County, Missouri, a Political Subdivision of the State of Missouri, Defendants-Respondents-Appellants. 30756.

Page 25

599 S.W.2d 25

Max TONKIN, Plaintiff-Appellant-Respondent, v. JACKSON COUNTY MERIT SYSTEM COMMISSION; Richard Hammett Chairman; Karen Ingram, Member; Paul L. Kartsonis, Member Susan Wilkinson, Member; Neal E. Millert, Member; and County of Jackson County, Missouri, a Political Subdivision of the State of Missouri, Defendants-Respondents-Appellants.

No. WD 30756.

Missouri Court of Appeals, Western District.

April 7, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

May 5, 1980.

Jeffrey B. Tonkin, Gary E. Haggerty, Kansas City, for plaintiff-appellant-respondent, Tonkin.

Michael F. Dandino, Associate County Counselor, Kansas City, for defendants-respondents-appellants, Jackson County Merit System Commission, et al.

Before CLARK, P. J., and DIXON and SOMERVILLE, JJ.

DIXON, Judge.

Cross appeals from a circuit court judgment reversing the action of the Jackson County Merit System Commission in upholding the discharge of a merit system employee present the issues.

The Commission contends on its appeal that the circuit court erred in reversing the Commission on the ground that the Commission improperly shifted the burden of proof. The employee alleges lack of jurisdiction in the Commission for failure to set the hearing in timely fashion, improper admission of evidence and exhibits before the circuit court on appeal, and error by the circuit court in failing to reverse outright for lack of competent and substantial evidence to support the Commission's findings.

For understanding of the issues on the cross appeals, a variation upon the usual statement of the facts is necessary. The ordinary statement would contain only those facts presented in evidence before the Commission. In the instant case, an attempt was made to adduce certain exhibits and evidence at the circuit court level. Because they bear on the issues to be decided, these facts will be included in the following recital. Appropriate reference to the time and manner of presentation will be made in the discussion of the issues.

The underlying controversy revolves around the discharge of appellant Max Tonkin as a Jackson County merit employee. The discharge was alleged to be due to improper political activity by Tonkin.

The discharge by the Director of Administration of Jackson County had its genesis in a letter complaining of Tonkin's activity in behalf of a defeated candidate for the office of County Executive. The letter was from a county employee to the successful candidate. Tonkin was terminated August 21, thirteen days after the primary election.

Essential to an understanding of the issues are provisions of the Jackson County Charter (of which this court takes judicial notice, Constitution of Missouri, Article VI, § 18(j)) and certain ordinances of Jackson County (which are not subject to judicial notice and which were not introduced into evidence).

On August 21, 1978, plaintiff's employment was terminated for alleged violation of County Ordinance # 554, Section 6, and Article IX, Section 6(2)(4) of the Jackson County Constitution Home Rule Charter. The Charter sections read as follows:

"2. Employees under the merit system shall not be personally solicited or required to pay any assessment or contribution or perform any service which will benefit anyone occupying or seeking employment, nomination or election to any public office by any other employee, officer or elected official of the county.

4. No officer or employee of the county shall, or promise or threaten to, promote, remove or reduce any employee under the merit system for making or refusing to make any contribution for any political party or purpose or for rendering or refusing to render any political service."

Section 6 of County Ordinance # 554 allegedly restates Article IX, Section 6(2) and (4) of the Charter.

This act of termination was a "significant act" as defined by Section 1 of Jackson County Ordinance 553. As a "permanent merit employee," plaintiff was entitled to certain rights created under this ordinance, among them being the right to appeal his termination to the Jackson County Merit System Commission to review the grounds upon which his employment was terminated. Plaintiff timely filed such an appeal on August 24, 1978.

The Commission is specifically empowered under the County Charter to review any "significant act" affecting the employment of a merit system employee to determine if the act taken against the employee was due to the race, creed, color, religion, national origin, sex, age, ancestry, handicap, political activity, or lack thereof or union membership or nonmembership of the employee or was otherwise without just cause. (Section 8(5) Ordinance # 553).

Ordinance # 553 provides, with respect to the hearing to be afforded as follows:

"Section 18. Hearing, time requirement continuances.

1. Upon receipt of an appeal the personnel director shall notify the chairman of the commission who shall set a date for the hearing of the appeal. The director shall notify in writing all parties of the time and place of the hearing.

2. The hearing date shall be scheduled by the chairman within 14 days of the date of filing of the appeal; the hearing must commence within 21 days of the filing of the appeal, unless continued as provided by this section.

3. A hearing may be continued by the chairman in order to obtain the presence of a quorum of three commissioners at the hearing.

4. A hearing may be continued by the chairman with the consent of the employee and the appointing authority, and may be continued upon the request of either party for good cause shown. The opposing party shall be notified of the request for a continuance, and if the continuance is objected to, the hearing shall proceed as scheduled to provide an opportunity to state those objections.

5. Except where the hearing is continued as provided by this section, the failure to commence the hearing within the prescribed time period shall result in a reversal of the action taken against the employee subject to the provisions of Section 25.2 of this ordinance."

Also offered in evidence at the circuit court level was an affidavit of the Secretary to the Commission. This affidavit by the Secretary, Irene Herron, stated the following facts:

On or about August 24, 1978, Mrs. Irene Herron, acting on behalf of the Commission Chairman, made several attempts to set a hearing. September 19, 1978 was the hearing date finally set as mutually convenient to all. Written notice of the September 19th hearing was sent to Tonkin on August 28, 1978.

The affidavit shows that attempts were made to schedule the hearing on four different occasions between September 8 and 19 before the final date was settled, and that three of the delays were for the plaintiff's benefit due to the unavailability of witnesses and trial conflicts for plaintiff's attorney. Significantly, an August 30th letter from Tonkin's counsel raised no issue as to the hearing date despite the acknowledgement by the letter that September 19th was the hearing date.

Hearings before the Commission occurred on September 19 and 26, 1978. At the beginning of the September 19th hearing, Tonkin objected to the proceeding alleging that the Commission was without jurisdiction because the hearing was not commenced within 21 days of the filing of the appeal as required by § 18, Ordinance # 553. The objection was overruled by the Commission Chairman who made the following statement after a recess to consider the issue raised:

THE CHAIRMAN: Mr. Tonkin, with regard to your jurisdiction, because of lapse of time here, originally I'll admit, candidly, I don't recall the exact sequence, but the three events were that, originally, we set it and it was necessary to reschedule it for the convenience of Mr. Crowley, I believe. It was then set a second time. It was necessary to reset it for the convenience of Mr. Wilson. The third time the date that we had picked, the chambers here were unavailable, and today's date was the first date when all the factors came together. It would be my reaction, therefore, that, though it has been longer than the time stated in our rule, that a consistent, conscientious effort has been made and we would proceed on this basis, would be our thought there.

It is a fair inference from the record that Irene Herron was present with the Commission at the recess.

A further procedural tangle developed when the Commission was ready to receive evidence. The Commission insisted Tonkin was to have the laboring oar. Tonkin objected but finally went forward with evidence. Tonkin called a total of eight witnesses. He also testified in his own behalf and denied soliciting or threatening any county employee in order to have them work in a political campaign. The Commission received evidence from four witnesses offered by the County who testified to various threats and promises made to them by Tonkin concerning work he allegedly wanted them to do in various political campaigns.

On October 5, 1978, the Commission affirmed plaintiff's termination. The Commission found that the County's four witnesses were credible; that there was competent and substantial evidence that plaintiff solicited employees to perform political service on behalf of candidates seeking public office; that plaintiff had threatened and intimidated county employees to get them to work in the August primary election; and, finally, that the termination was with just cause and was not for any reason prohibited by the County Merit System.

Tonkin filed a petition in the circuit court to review the Commission's decision pursuant to § 536.100 RSMo 1978 and Rule 100.03. Tonkin's petition adequately preserves the issues that have been briefed on appeal.

The record before the circuit court consisted of a verbatim transcript of the Commission proceedings, a copy of the Commission's notice of a decision and a "continuity file" regarding Tonkin created by the...