Wilson v. City of St. Louis

• Court: Missouri Court of Appeals
• Writing for the Court: Sherri B. Sullivan
• Decision Date: 29 October 2013
• Docket Number: No. ED99288,ED99288
• Citation: Wilson v. City of St. Louis, No. ED99288 (Mo. App. Oct 29, 2013)
• Parties: GILBERT WILSON, Plaintiff/Appellant, v. THE CITY OF ST. LOUIS, MISSOURI, THE CIVIL SERVICE COMMISSION of THE CITY OF ST. LOUIS by STEVEN M. BARNEY, JOHN H. CLARK and STANLEY NEWSOME, SR., Defendants/Respondents.

GILBERT WILSON, Plaintiff/Appellant, v. THE CITY OF ST. LOUIS, MISSOURI, THE CIVIL SERVICE COMMISSIONof THE CITY OF ST. LOUIS by STEVEN M. BARNEY, JOHN H. CLARKand STANLEY NEWSOME, SR., Defendants/Respondents.

No. ED99288

Missouri Court of Appeals Eastern District DIVISION TWO

Filed: October 29, 2013

Appeal from the Circuit Court

of the City of St. Louis

Honorable Joan L. Moriarty

Introduction

Gilbert Wilson (Appellant) seeks appellate review of a contested case whereby the Civil Service Commission (Commission) affirmed his termination of employment as a financial analyst in the City of St. Louis's (City) Office of the Comptroller Financial Reporting Section, Tax Increment Financing, and the circuit court denied his request for an evidentiary hearing. We affirm.

Factual and Procedural Background

On February 11, 2009, Appellant forwarded an email from fellow City worker Percy Green (Green) whose subject line read, "For Your Information and Circulation!" The email included an attachment, which Appellant claims not to have opened before forwarding the email to approximately forty-five to sixty people, including coworkers.One coworker, Candice Gordon (Gordon), called Appellant to express her concern that the email was political. The attachment, in fact, solicited support for a candidate for a partisan election, to-wit: Irene J. Smith for Mayor of the City of St. Louis in the March 3, 2009, Democratic primary election, as well as three candidates for the St. Louis Board of Education. Appellant opened the email's attachment and then deleted the email. Appellant also sent the email to coworker Vanessa Carter (Carter), who told Appellant's immediate supervisor Beverly Fitzsimmons (Fitzsimmons) that he had sent an email that was against the Civil Service Rules and forwarded her a copy. Upon learning of the email, Deputy Comptroller John Zakibe (Zakibe) notified Deputy Director of Personnel Linda Thomas (Thomas). Appellant was directed to meet with Fitzsimmons and Zakibe regarding the email. At the meeting, Appellant claimed he was not aware of the contents of the attachment when he forwarded the email and believed it was religious in nature.

On February 27, 2009, Appellant was notified that he was being placed on leave pending a pre-termination hearing scheduled for March 6, 2009. The notice of pre-termination review provided him with written notice of a summary of the charges, a brief description of the offending behavior, and his rights to representation at the review. It notified him he was entitled to explain his actions, dispute any facts and/or present any mitigating circumstances. At the hearing, Appellant declined representation but responded to the allegations. Appellant testified he was not aware of the contents of the email's attachment and believed the email "was one of those emails [that] tells you to send it to a group of 20 people in a certain amount of time."

On March 6, 2009, after consultation with Zakibe, Legal Advisor and Chief of Staff Elaine Spearman (Spearman) terminated Appellant from his employment for having"distributed/forwarded through the City's Group Wise e-mail system an e-mail, which contained an attachment soliciting support for a candidate for a partisan election ... a violation of the provisions of the Code of Conduct, Rule XV, § 2 of the Civil Service Rules, Article XVIII, § 19 of the City Charter and a memorandum issued November 19, 2007 by ... Spearman, all pertaining to prohibited political activity and a violation of the City of St. Louis Information Systems E-Mail Policy." Appellant received a copy of the Code of Conduct for St. Louis City employees prior to February 11, 2009.

On June 17, 2009, the Commission held an evidentiary hearing on Appellant's appeal of his termination. Appellant introduced testimony and evidence of other employees charged with violating the City's prohibitions on political activity who had not been terminated. Appellant also testified he was unaware of the contents of the attachment and forwarded the email to people he thought may be interested in it because he thought it was probably religious in nature. The Commission made a finding that Appellant's testimony was not credible.

On September 10, 2010, the Commission issued its Decision including Findings of Fact and Conclusions of Law upholding Appellant's dismissal. The Commission determined Appellant's action in distributing the email and forwarding it through the City's Group-Wise email system was in violation of the City Charter, Article XVIII, Section 19; Civil Service Rule XV, Section 2; and a memorandum issued by Appellant's Appointing Authority, Darlene Green, on November 19, 2007, because the email contained an attachment soliciting support for a candidate in a partisan political election. The Commission found Appellant was dismissed from City Service for good and justcause as set forth in Rule IX, Section 3(a)(5) of the Civil Service Rules, which reads, in part, as follows:

Employees in the competitive service may be dismissed, demoted, reduced in pay, suspended without pay, or reprimanded for just cause.

(a) Appointing authorities may take one of the following disciplinary actions for just cause:

...

(5) Dismiss the employee from City Service.

The Commission also took note of Section VIII of the Department of Personnel Administrative Regulation No. 117, which contains the following "Dismissal" exception for the Commission's general policy of progressive discipline¹:

Exceptions to Progressive Discipline

There are some actions which are so serious that progressive discipline is inappropriate or insufficient and, therefore, immediate dismissal is warranted. Listed below are some examples of actions which may be exceptions to progressive discipline. These examples are not intended to be all inclusive.

...

Participation in any political activity prohibited by the Charter of the City of St. Louis or Civil Service Rules.

On October 1, 2010, Appellant filed a petition for administrative review of the Commission's decision with the circuit court and a separate motion for evidentiaryhearing. On May 5, 2011, Appellant argued his motion for evidentiary hearing, which the circuit court denied on October 4, 2011. On July 23, 2012, Appellant filed an amended motion for evidentiary hearing, which merely added another allegation of a civil service worker sending a political email from a city account, as published in the St. Louis Post-Dispatch on April 17, 2012, and thus not available at the time of the hearing before the Commission. On October 18, 2012, the circuit court issued its order and judgment denying the motion and affirming the Commission's decision. This appeal follows. Appellant raises six points on appeal, the first five of which claim error in the Commission's decision affirming his termination of employment and the sixth which challenges the circuit court's denial of his motion for evidentiary hearing.

Commission's Decision

Appellant first contends Article XVIII of the City Charter and Civil Service Rule XV prohibiting political emails are unconstitutional. Second, he claims the Commission misconstrued the City Charter and Civil Service Rule as prohibiting political emails. Third, he asserts his superiors committed procedural irregularities prior to the Commission's decision. Fourth, he argues he was not advised of his right to representation. Fifth, he claims the Commission did not have authority to delegate the hearing to a non-Commission member.

We review the decision of the Commission, not the judgment of the circuit court. Coffer v. Wasson-Hunt, 281 S.W.3d 308, 310 (Mo.banc 2009); Section 536.140.2.² We determine whether the Commission's findings are supported by competent and substantial evidence on the record as a whole, whether the decision is arbitrary, capricious, unreasonable, or involves an abuse of discretion, or whether the decision isunauthorized by law. Coffer, 281 S.W.3d at 310. We review the entire record, not just the evidence supporting the Commission's decisions. Id. Where the evidence supports opposing findings, we afford deference to the Commission's decision. Id. However, we do not defer to the Commission's findings on questions of law. Vivona v. Zobrist, 290 S.W.3d 167, 170 (Mo.App. W.D. 2009).

Point I - Constitutionality

City Charter Article XVIII, Section 19, prohibits persons holding a position in the classified service from taking an active part in a political campaign and distributing indicia favoring or opposing a candidate for election or nomination to a municipal public office. In its entirety, Section 19 provides:

Political activity of classified employees.

No person holding a position in the classified service shall use his official authority or influence to coerce the political action of any person or body, or to interfere with any election, or shall take an active part in a political campaign, or shall seek or accept nomination, election, or appointment as an officer of a political club or organization, or serve as a member of a committee of any such club or organization, or circulate or seek signatures to any petition provided for by any primary or election law, or act as a worker at the polls, or distribute badges, color, or indicia favoring or opposing a candidate for election or nomination to a public office, whether federal, state, county, or municipal. But nothing in this section shall be construed to prohibit or prevent any such person from becoming or continuing to be a member of a political club or organization or from attendance upon political meetings, from enjoying entire freedom from all interference in casting his vote, from expressing privately his opinions on all political questions, or from seeking or accepting election or appointment to public office, provided, however, that no active campaign for election shall be conducted by any employee unless he shall first resign from his position.

Similarly, Civil Service Rule XV, Section 2³ prohibits persons in...