Turner v. Copley

• Decision Date: 04 October 2011
• Docket Number: No. WD 73204.,WD 73204.
• Citation: 351 S.W.3d 49
• Parties: William R. TURNER, Respondent, v. Gil COPLEY, Director of the St. Charles County Department of Community Health and Environment, and The Merit System Commission of St. Charles County, and St. Charles County, Missouri, Appellants.
• Court: Missouri Court of Appeals

351 S.W.3d 49

William R. TURNER, Respondent,
v.
Gil COPLEY, Director of the St. Charles County Department of Community Health and Environment, and The Merit System Commission of St. Charles County, and St. Charles County, Missouri, Appellants.

No. WD 73204.

Missouri Court of Appeals, Western District.

Oct. 4, 2011.Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 1, 2011.

[351 S.W.3d 51]

Harold A. Ellis, for Appellants.

Brian D. Klar, for Respondent.

Jonathan Maire, Co-counsel for Respondent.

Before Division Three: VICTOR C. HOWARD, Presiding Judge, ALOK AHUJA, Judge and KAREN KING MITCHELL, Judge.

VICTOR C. HOWARD, Judge.

Gil Copley and St. Charles County appeal the circuit court's judgment reversing the decision of the Merit System Commission of St. Charles County upholding the termination of William Turner's employment with the County. The circuit court's judgment is reversed, and the case is remanded with instructions to reinstate the Commission's decision.

Background

In July 2008, William Turner was hired by St. Charles County as a Regional Response Planner within the Department of Community Health and Environment's (“Health Department”) Office of Emergency Preparedness and Epidemiology (“Office”). The Office plans emergency responses to two types of health emergencies: bio-terrorism and emerging infections. Bio-terrorism planning involves responses to intentionally inflicted harm on the general population and the direct distribution of antibiotics held by the Strategic National Stockpile to the general population, within 48 hours and through designated Points of Distribution, subject to stringent federal regulations including security and confidential planning requirements. Emerging infections planning addresses new and previously unknown illnesses and pandemics such as monkey pox or bird flu, is typically looser than bio-terrorism planning, and is not subject to stringent federal regulations that govern bio-terrorism planning and the distribution of antibiotics. The Office is funded through a contract between the County and the State of Missouri, which covers both bio-terrorism and emerging infections planning as well as epidemiology and further commits the County to participate in a Cities Readiness Initiative (“CRI”). The CRI expands local bio-terrorism planning to a regional level, in this case the St. Louis CRI Region consisting of the City of St. Louis, the Missouri counties of St. Louis, St. Charles, Crawford, Franklin, Jefferson, Lincoln, Warren, Washington, and several Illinois counties. As Regional Response Planner, Mr. Turner was responsible for managing and coordinating the CRI program for the St. Louis CRI Region. His job duties also included emerging infections planning and “other duties as assigned.” Mr. Turner worked under the guidance of Senior Regional Response Planner, Hope Woodson, who headed the Office.

In 2006 and 2007, Ms. Woodson and other planners and responders drafted a

[351 S.W.3d 52]

Pandemic Influenza Emergency Response Plan 2007 (“Pandemic Plan”). The Pandemic Plan was part of the Office's emerging infections planning and was prepared in response to an outbreak of bird flu. After federal funding ceased, work on the “Pandemic Plan” ceased, and the document was never made final. The Office, however, continues to use and update the “Pandemic Plan.”

During the week of April 20, 2009, the Office began to monitor an outbreak of flu-like (swine flu) symptoms in Canada, Mexico, and California. By April 26, 2009, the Centers for Disease Control had declared a national public health emergency. To manage the response to the emergency, the Health Department's Director, Gil Copley, established an Incident Command team with himself as Incident Commander. On April 28, 2009, the Office received notice from the State that it would release a cache of anti-viral medications, leaving to the discretion of local public health authorities any decision on the distribution of the medications.

The Office began planning for receipt and distribution of the medications with twice-daily staff meetings. Because distribution of anti-viral medications was not in response to a bio-terrorism event, the operation was not governed by bio-terrorism plans such as under the CRI but rather the Office's “Pandemic Plan,” specifically its Appendix J, was useful by providing the groundwork. With respect to distribution to healthcare institutions, Appendix J provided for ordering and pick up of medications by the institutions, and those provision were successfully followed on May 1, 2009. With respect to distribution to pharmacies, Appendix J reserved the development of detailed procedures for later planning. The Office made such plans for distribution to the pharmacies in the County during the week of April 27. Mr. Turner attended the Office's twice-daily planning meetings except for the two meetings on April 30 when he had to stay home to attend to a malfunctioning water well.

On the morning of May 1, 2009, Ms. Woodson decided that County staff would deliver the anti-viral medications to pharmacies rather than hold them for pick-up, and her decision was authorized by Mr. Copley. The delivery team selected by Ms. Woodson consisted of three people: Mary Neeley, a registered nurse to answer any questions about the medications; Kelly Bobeen to drive the delivery truck; and Mr. Turner, who was assigned the task of “logistics leader” on the team. As logistics leader, Mr. Turner was charged with navigating and giving directions to the driver, calling pharmacies in advance to arrange for delivery, staying in contact with Incident Command, and managing unforeseen problems to ensure completion of the deliveries.

The delivery team used an F–350 truck that towed a small locked trailer containing the medications. The Sheriff's Office provided security for the delivery team in a separate vehicle although security was not required. The team delivered medications to pharmacies until approximately 8 p.m. that evening. Mr. Copley decided to end the operation at that time after receiving a phone call from a captain at the Sheriff's Office requesting Mr. Turner's removal from the delivery team and because it was getting late and pharmacies would soon close. Ms. Woodson picked up Ms. Bobeen and Ms. Neely at a drug store and drove them back to the Health Department, while Mr. Turner drove the delivery truck without security escort to the sheriff's facility to store it. After the women returned to the Health Department, Ms. Woodson and Mr. Copley debriefed Ms. Bobeen and Ms. Neeley about the delivery operation. The women stated

[351 S.W.3d 53]

that Mr. Turner had not been helpful and asked that he not accompany them on the remaining deliveries the next day. Mr. Copley decided that evening to remove Mr. Turner from the delivery team for the next day.

On May 4, 2009, Mr. Copley and Ms. Woodson took disciplinary action against Mr. Turner in the form of verbal counseling and written reprimand addressing his conduct during the delivery operation. Mr. Turner prepared a written rebuttal to reprimand and gave it to Ms. Woodson the next day. Mr. Copley again debriefed Ms. Bobeen and Ms. Neely on May 5, gathering additional information from them about jokes Mr. Turner played on Ms. Bobeen during the delivery operation. He also collected written statements from the women about the delivery operation.

On May 20, 2009, Mr. Copley notified Mr. Turner in writing that the Health Department was considering severe disciplinary action and that a pre-disciplinary hearing would be held. At the hearing, which was held on May 28, Mr. Turner did not respond in full detail to the notice of disciplinary action, expressing his concerns that the decision had already been made. He, however, agreed that Mr. Copley could consider his written rebuttal as responsive to the notice.

Mr. Copley terminated Mr. Turner's employment with the County effective June 4, 2009. Mr. Turner appealed his dismissal to the Merit System Commission of St. Charles County. A hearing was held on September 15, 2009. The County presented the testimony of Ms. Woodson, Ms. Bobeen, Mr. Copley, and one of the sheriff's deputies from the delivery team. Mr. Turner testified on his own behalf. On December 16, 2009, the Commission issued its final decision sustaining Mr. Copley's dismissal of Mr. Turner based on abuse of a fellow employee, unsatisfactory performance of his duties, and conduct prejudicial to the County.

Mr. Turner sought judicial review of the Commission's decision, and the circuit court reversed Mr. Copley's decision to terminate Mr. Turner's employment and the decision of the Commission affirming the termination, ordered Mr. Turner's reinstatement to his previous position, and awarded him back pay retroactive to June 4, 2009. This appeal followed.

Standard of Review

Article V, Section 18 of the Missouri Constitution authorizes judicial review of administrative actions. Reviewing courts determine whether the agency actions “are authorized by law, and in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record.” Id. An appellate court reviews the agency's decision rather than the trial court's decision. Albanna v. State Bd. of Registration for Healing Arts, 293 S.W.3d 423, 428 (Mo. banc.2009).

The standard of review for administrative decisions is “whether, considering the whole record, there is sufficient competent and substantial evidence to support the [agency's decision.]” Albanna, 293 S.W.3d at 428 (internal quotes and citation omitted). The evidence is not viewed in the light most favorable to the agency's decision. Id.; Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). A decision “that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence.” Hampton 121 S.W.3d at 223. The reviewing court...