Vorbeck v. McNeal, 38674
| Decision Date | 25 October 1977 |
| Docket Number | No. 38674,38674 |
| Citation | 560 S.W.2d 245 |
| Parties | William J. VORBECK, Plaintiff-Appellant, v. Theodore McNEAL et al., Defendants-Respondents. . Louis District |
| Court | Missouri Court of Appeals |
London, Greenberg & Fleming, Lawrence J. Fleming, James J. Hennelly, St. Louis, for plaintiff-appellant.
Kenneth C. Brostron, Albert J. Stephan, Jr., St. Louis, for defendants-respondents.
Plaintiff appeals from the ruling of the circuit court sustaining defendants' motion to dismiss for plaintiff's failure to state a claim on which relief could be granted.
The significant facts of the case are reasonably few and simple. At a public meeting of the Board of Police Commissioners on April 29, 1976, plaintiff William J. Vorbeck, a sergeant in the St. Louis Metropolitan Police Department, was given permission to respond to a statement made by Colonel Theodore McNeal, President of the Board of Police Commissioners. Vorbeck's remarks were in response to statements made by Colonel McNeal that he had met with Vorbeck, then acting as President of the St. Louis Police Officers' Association, to discuss certain matters relating to salaries and conditions of employment of the police officers in the department. In the course of his remarks at the Board meeting, Sgt. Vorbeck made the following statement about the alleged meetings with Col. McNeal:
After Sgt. Vorbeck made these remarks, Colonel McNeal made a brief statement and adjourned the meeting.
On May 12, 1976, the Board of Police Commissioners, with the exception of Colonel McNeal, caused to be read a statement at a public meeting of the Board. The significant portions of the Board's public statement read as follows:
"Colonel Edward J. Walsh, vice-president of the St. Louis Board of Police Commissioners, read the following statement at today's public Police Board meeting:
The Board of Police Commissioners wishes to express its deep concern and disapproval over the conduct of Sgt. William Vorbeck at the public Board meeting held on April 29, 1976. At our request and because of his personal involvement as the target of the Sergeant's remarks, Colonel Theodore D. McNeal, Board President, is not participating in this statement and disposition of the matter.
First of all, the Board wishes to state our commitment to the good faith, integrity, and fairness of Colonel McNeal. * * * Sgt. Vorbeck's accusation at the public Board meeting that Colonel McNeal did not tell the truth must be taken as an attack on the integrity of the entire Board. Reasonable standards of decorum and conduct apply to all members of the Department and in assailing his ultimate superiors with his remarks, Sgt. Vorbeck has violated those standards.
It would serve no useful purpose to file charges against Sgt. Vorbeck although such action would be altogether justified. * * * The Board has decided instead to use this incident as an occasion to remind all officers of the expected standards of conduct. A great majority of officers adhere to these standards. However, with increasing frequency in recent months, some officers, individually or in a representative capacity, have made oral and written statements questioning the honesty and integrity of members of the Board, and which border upon allegations of misconduct in office and dereliction of duty.
* * * We therefore caution all officers who have a propensity to question the honor, integrity and reputation of fellow officers and superiors, that such conduct, and any conduct, which brings discredit to the Department and is contrary to good order and discipline will be subject to appropriate action.
As for Sgt. Vorbeck, we publicly censure him for his conduct. The Board considers this incident closed."
This censure and warning was disseminated in written form through "Board Bulletin" No. 36 to all officers of the Police Department.
On June 11, 1976, Sgt. Vorbeck filed a petition in the Circuit Court of the City of St. Louis. In his petition plaintiff alleged: 1) that he was disciplined without the notice and hearing required by Rule 7 of the Personnel Regulations of the Board of Police Commissioners and by the provisions of the Missouri Administrative Procedure Act Sections 536.010 to 536.140, RSMo.1969, and contrary to his right to due process of law guaranteed to him by the Fourteenth Amendment of the United States Constitution and Article I, Section 10 of the Missouri Constitution; 2) that defendants have deprived him of his right to freedom of speech and expression guaranteed to him by the First Amendment to the United States Constitution and Article I, Section 8 of the Missouri Constitution of 1945; 3) that plaintiff had suffered damages because of this public humiliation and ridicule resulting from the Board's statement; and 4) that unless the requested relief is granted he will continue to suffer irreparable harm to the rights guaranteed to him by the Missouri and the Federal Constitutions. As relief, plaintiff's petition sought an order compelling the Board of Police Commissioners to give him notice of charges against him and a full and fair hearing, and to retract publicly the "censure" and declare it null and void. The plaintiff also sought a declaration of the court to the effect: 1) that the plaintiff was entitled to notice and a hearing relative to the charges against him; 2) that the officers' freedom of speech cannot be so restricted by the Board and that plaintiff and others cannot be disciplined for questioning statements made by defendants without a showing and finding that such conduct is slanderous or otherwise improper; and 3) that the penalty of "censure", not being authorized by applicable statements and regulations, is null and void.
Defendants filed a motion to dismiss plaintiff's petition on the grounds that it failed to state a claim on which relief could be granted and failed to allege an actual controversy between plaintiff and defendants. Defendants' motion was based on three contentions: 1) that no disciplinary action was taken by the Board requiring either notice or a hearing; 2) that defendants Walsh, Mehan, Seddon and Poelker were merely exercising their right to freedom of speech; and 3) that no relief could be granted against defendant McNeal because he had taken no part in the acts complained of in the petition.
The trial court sustained defendants' motion to dismiss, and plaintiff appealed. The trial court stated no reasons in dismissing the petition, so we must assume it was for the reasons alleged in defendants' motion.
In reviewing the trial court's dismissal of the plaintiff's petition for failure to state a claim on which relief could be granted, the appellate court must construe the petition favorably to the plaintiff and accept as true all the facts alleged therein. Furthermore, the pleader is entitled to all favorable inferences which can be reasonably deduced therefrom. Jacobs v. Jacobs, 272 S.W.2d 185 (Mo.1954); Mercantile Trust Company v. Chase Hotel, Inc., 510 S.W.2d 807 (Mo.App.1974); Trotter v. Sirinek, 515 S.W.2d 67 (Mo.App.1974).
As his first point of error, plaintiff contends that the trial court erred in dismissing plaintiff's petition in which he sought mandatory injunctive relief. Plaintiff asserts that he had made a claim on which relief could be granted in his petition for injunctive relief based upon allegations that he had been disciplined, humiliated and ridiculed publicly without notice and a hearing, all contrary to Police Board regulations, the Missouri Administrative Procedure Act, and his right to due process guaranteed by the United States and Missouri Constitutions. We find no error in the trial court's dismissal of plaintiff's petition.
In alleging that he was entitled to notice and a hearing before the Board's issuance of the "public censure" statement, plaintiff points to Rule 7 of the Personnel Regulations of the Board of Police Commissioners which provides in part that a member of the department is granted the right to request a hearing should he refuse "to accept recommended disciplinary actions greater than an oral reprimand." Section 7.016 of the Rules and Regulations of St. Louis Metropolitan Police Department. Plaintiff asserts that the censure by the Board and its subsequent dissemination constituted a disciplinary action by the Board greater than an oral reprimand. We cannot agree.
The Board in its public statement did publicly censure Sgt. Vorbeck, and the Board disseminated written copies of its statement to all the officers in the Department. The Board's statement, however, clearly stated that, whatever the members' feelings about Sgt. Vorbeck's conduct, the Board had not filed and did not intend to file any charges. No disciplinary proceeding was initiated against Sgt. Vorbeck for his conduct. The Board's statement, although a public statement by a public body, constituted no official disciplinary action against Sgt. Vorbeck and no record of the incident or the censure was placed in his personnel file or on his records as would have been a written reprimand. The statement by the Board, unlike a written reprimand, was not directed only to Vorbeck but rather was in the form of a general public statement by the Board relating to broader concerns of Departmental conduct. To be sure, reference was made specifically to Sgt. Vorbeck's conduct, but that portion of the statement, as did the entire statement, represented merely the Board's public response to Sgt. Vorbeck's remarks. Although critical of Sgt. Vorbeck, the statement did not constitute a disciplinary action by the Board requiring a notice of charges (which were not filed) and a hearing under Rule 7 of the...
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