Fleming v. Holland

Full title: FLEMING v. HOLLAND ET AL

Court: St. Louis Court of Appeals, Missouri

Date published: Sep 15, 1953

260 S.W.2d 840 (Mo. Ct. App. 1953)

Opinion

No. 28776.

September 15, 1953.

APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, EDWARD M. RUDDY, J.

Not to be reported in State Reports.

Jerome F. Duggan, Edward A. Dubinsky and Dubinsky Duggan, St. Louis, for appellant.

James E. Crowe, City Counselor, Charles J. Dolan, Associate City Counselor, St. Louis, for respondents.

ANDERSON, Judge.

This is an action in certiorari instituted in the Circuit Court of the City of St. Louis by Alfred Harrison Fleming, as relator, against the members of the St. Louis Civil Service Commission, as respondents, to review the action of said commission in approving the dismissal of relator from his position as District Deputy Assessor of the City of St. Louis. The prayer of the petition was for the issuance of a writ commanding respondents to certify to the court all of the proceedings in said matter; that the order of the commission be quashed and set aside; and that the respondents be directed to enter an order reinstating relator to his position.

Thereafter, a writ of certiorari directed to respondents was issued, commanding them to certify to the court all of the records and proceedings had before them in the matter of the discharge of relator. In response to the writ, respondents certified to the court a complete copy of all the proceedings had before them, together with their findings in said matter and, in their return, prayed that relator's petition be dismissed. Thereafter, the cause was submitted upon the record, and the court, upon consideration thereof, found that relator was not entitled to the relief prayed for in his petition. Thereupon the court entered its judgment quashing the writ and affirming the findings and decision of the respondents. From this judgment, relator has appealed.

Mr. Fleming was dismissed from service by Mr. Eugene M. Guise, the Assessor of the City of St. Louis. Said dismissal was directed by R. Elliott Scearce, Director of Personnel, after the latter found that Mr. Fleming had violated part of Sections 15 and 18 of Article XVIII of the City Charter, "by attempting to collect money from Harold Kendall for promised influence in his appointment, retention and promotion in the Fire Department, this action being to the prejudice of the City Service." Fleming appealed from this decision to the St. Louis Civil Service Commission, as he had a right to do under the provisions of Article XVIII of the City Charter, as amended, and Rule XIII of the Commission adopted pursuant to said Charter provision. A full hearing on the merits was had on this appeal, which, as we have heretofore stated, resulted in a finding approving Mr. Fleming's dismissal.

The charge against appellant involved alleged conduct prohibited by Sections 15 and 18 of Article XVIII of the Charter of the City of St. Louis, and his dismissal was pursuant to Rule IX, Section 3, of the Civil Service Rules.

Section 15 of Article XVIII of the Charter of the City of St. Louis provides:

"No person shall willfully, by himself or in co-operation with any other defeat, deceive, or obstruct any person in respect to his rights in relation to any tests of fitness or appointment to any position under the provisions of this Article, and any rules or ordinances made thereunder, or shall willfully and falsely mark, grade, estimate, or report upon the tests of fitness or proper standing of any person tested or certified pursuant to the provisions of this Article or the service ratings of any employe, or aid in so doing, or shall willfully make any false representation concerning the same, or concerning any person tested, or shall willfully furnish to any person any special or secret information for the purpose of either improving or injuring the prospect or chances of any person in connection with any test or appointment, or shall impersonate any other person or permit or aid in any manner any other person to impersonate him, in connection with any test or appointment, or application or request to be examined."

Section 18 of Article XVIII of the Charter of the City of St. Louis provides:

"No person, while holding any City office, or while in nomination or seeking nomination to appointment to any such office, shall corruptly use or promise to use, directly or indirectly, any official authority or influence, possessed or anticipated, to confer upon any person, or to secure or aid any person in securing, any office or public employment, or any nomination, confirmation, promotion, or increase of salary, upon the consideration or condition that the vote or political influence or action of any person shall be given or used in behalf of any candidate, officer, or party, or upon any other corrupt condition or consideration. No person, being an officer of the City, or having or claiming to have any authority or influence, in relation to the nomination, employment, confirmation, promotion, removal, or increase or decrease of salary, of any employe, shall corruptly use, or promise or threaten to use, any such authority or influence, directly or indirectly, to coerce or persuade the vote or political action of any person, or the removal, discharge, or promotion of any employe of the City."

Section 22 of Article XVIII of the Charter of the City of St. Louis provides that any person who violates or conspires to violate any provision of Article XVIII shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than one hundred dollars and not more than five hundred dollars, or by imprisonment for not to exceed six months, or both. Said section also provides that the conviction of any employee of any such offense shall operate automatically to terminate his service and to vacate his position.

Appellant's first point is that the commission could not legally affirm appellant's dismissal in the absence of a showing that he was convicted under Section 22 of Article XVIII.

There is no merit to this contention. Section 7 of Article XVIII of the Charter provides that the commission shall have power and it shall be its duty to prescribe rules for the administration and enforcement of the provisions of Article XVIII. Pursuant to the authority contained in said section, the commission has adopted the following rule: (Rule IX, Section 3)

"Employees in the classified service may be removed, demoted, reduced in pay, fined, or suspended without pay for just cause.

"(a) Reasons for disciplinary action; appointing authority to take such action:

"When any employee in the classified service is unable or unwilling to perform the duties of his position in a satisfactory manner, or has committed any act or acts to the prejudice of the service, or has omitted to perform any act or acts it was his duty to perform, or who has ceased to reside in St. Louis, or whose service rendered is below satisfactory standards or otherwise has become subject to disciplinary or other corrective measures, the appointing authority shall have the power and it shall be his duty to take action in one of the following ways:

"(1) To reprimand the employee.

"(2) To fine the employee in an amount not to exceed 10% of his regular monthly salary.

"(3) To suspend the employee without pay for a period not to exceed thirty days.

"(4) To order the pay of the employee reduced to a lower rate within the range of pay provided for the class of position held.

"(5) To demote the employee to the next lower class of position to that he currently holds.

"(6) To dismiss the employee from the City Service.

"(7) To retire the employee under the terms of any retirement act for City employees in existence at the time of removal and under which the employee is entitled to benefits." (Emphasis ours.)

It is clear that under the foregoing rule the commission had authority to enter the order of dismissal.

Appellant further contends that the finding of the respondents is unsupported by competent and substantial evidence upon the whole record. Our duty in the premises has been defined by our Supreme Court in Kansas City v. Rooney, Mo.Sup., 254 S.W.2d 626, 627:

"As we recently pointed out in Michler v. Krey Packing Company, Mo. Sup., 253 S.W.2d 136, 142, decisions of administrative tribunals are not reviewed de novo because courts have no authority to make findings of fact in such cases. An administrative tribunal `is the fact-finding body, and the Court examines the evidence not to make findings for the Commission but to ascertain whether its findings are properly supported.' This `does not mean that the reviewing court may substitute its own judgment on the evidence for that of the administrative tribunal. But it does authorize it to decide whether such tribunal could have reasonably made its findings, and reached its result, upon consideration of all of the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence.'"

Appellant was charged with soliciting funds from Harold N. Kendall for use of appellant's influence in securing Kendall's appointment to a position in the Fire Department of the City of St. Louis.

Kendall testified that on February 7, 1949, he called Mrs. Raeder, a Committee-woman, and talked to her about the matter and that she told him she would help him; that she would contact a man in south St. Louis and that he should call her again the next day. The next day Kendall called Mrs. Raeder's home but was unable to talk with her for the reason that she was not at home. The following day, February 9, 1949, Mrs. Raeder called Kendall and told him she was unable to get in touch with the man in south St. Louis, but had contacted a man in the Assessor's Office in the City Hall — a Mr. Fleming — who would help him, and told him to call Mr. Fleming. Kendall then, according to his testimony, called Mr. Fleming and was told by the latter to come to his office that same day at one o'clock. Kendall further testified:

"After I had my lunch I went to the City Hall. It was right around one o'clock.

* * * * * *

"Q. And when you entered Room 120, what did you do or say? A. Well, in 120 there is a rail with a gate. It stops you when you go in, and Mr. Fleming was sitting at the second desk from the side of the wall, the first one in line, in the second row of desks, and I said, `I believe you are the fellow.' * * * It has a name plate on his desk with the name on it * * * I went behind the rail and sat at a chair by his desk * * * I told him that I was the fellow that had been sent down there. He asked me my name. I told him my name. I believe he wrote on the back of the envelope, and he asked me what grade I had received and all that, and I told him and I showed him the card and the letter. Well, he said, `I believe I can do you some good. * * * I bowl with the Chief on Thursdays * * * that will be tomorrow night * * * I will talk to him for you.' * * * We continued talking. * * * He said, `You know * * * whenever you get a job, when you go to an employment agency, they charge you a fee.' * * * Right away I knew what he had in mind. I said, `What is this fee going to be?' * * * He said, `It will be about two hundred dollars.' I said, `Well, I don't have two hundred dollars.' He said, `How much money can you get a hold of?' * * I said, `I have forty dollars in the bank', and he says, `Well, get that forty and see if you can get ten more and bring it in here on Saturday and make a fifty dollar down payment, and twenty dollars a month until it is paid off.'

"Q. And did he undertake to do anything in return for this payment? A. He was going to talk to the Chief and have me appointed to the Fire Department. * * * Well, I got home, I talked to the wife and we were pretty upset about it, because two hundred dollars is just pretty hard to get from me right now, and so I decided to call this friend of mine, Al Burke, at seventeen, and he told me to have nothing to do with it. He said, `Just ignore it; just forget about it.' * * * I took Burke's advice and just forgot about it, and I went to the City Hall on the 11th, and was appointed by the Fire Chief to report over at the training school on February the 15th."

Appellant testified he never met or knew Kendall until the two of them met in the office of the Director of Personnel on March 1, 1949. Appellant denied that the occurrence testified to by Mr. Kendall ever took place. He testified that he was not in his office during the afternoon of February 9, 1949, but was in his district checking property. He also testified that he was at the office of the Recorder of Deeds on the morning of February 9, 1949, and his testimony in this respect was corroborated by several witnesses.

Mrs. Raeder testified and denied that she told Kendall to contact appellant. She said Kendall called her, seeking aid in securing his employment, and that she told him to call his own committeeman. She stated she told him that no political influence could get him a job under Civil Service.

There was evidence on behalf of appellant that his work as deputy assessor was at all times satisfactory, and that his character and reputation were good in the community.

We have carefully read and studied the record in this case and have reached the conclusion that the finding of respondents is based upon competent and substantial evidence, and that it is not against the overwhelming weight of the evidence.

The judgment appealed from is affirmed.

BENNICK, P. J., and ADAMS, Special Judge, concur.