Opinion
No. ED 79849.
March 19, 2002.
Appeal from the Circuit Court of St. Louis County, Honorable Patrick Clifford.
Michael D. Hart, 720 Olive Street, 24th Floor, St. Louis, MO, 63101, for the appellant.
Ruby L. Bonner, 911 Washington Ave., Suite 205, St. Louis, MO, 63101, for respondent.
Defendants, the City of Berkeley (City); members of the Berkeley City Council (City Council); the Berkeley City Manager (City Manager); and members of the Berkeley Civil Service Commission (Commission), appeal from the circuit court's judgment reversing the Commission's decision to dismiss Roosevelt Sims from his position as Fire Chief of the City. Defendants contend the circuit court erred in finding there was no competent and substantial evidence to support the Commission's decision. Additionally, Defendants argue the circuit court erred in entering judgment against the City Council, the Commission, and the City Manager in both their individual and official capacities. Finally, Defendants claim the circuit court erred in finding the Commission was without jurisdiction to hear Mr. Sims' appeal. We reverse the judgment of the circuit court and reinstate and affirm the Commission's order of termination.
FACTS
Roosevelt Sims served as Fire Chief of the City for six and a half years. The City Manager dismissed Mr. Sims by letter dated June 14, 1999. On June 22, 1999, Mr. Sims requested a hearing before the Commission to review his termination. On July 13, 1999, Mr. Sims, in a letter to the City Manager, requested reinstatement as Fire Chief and back pay due to the Commission's failure to hold a hearing within ten days after his receipt of the notice of termination letter. The Commission held a hearing on July 21, 1999. At the hearing, Mr. Sims submitted a written Motion for Reinstatement to the Commission seeking reinstatement, back pay, attorney's fees, and court costs on the ground that his right to due process had been violated because the hearing was untimely. The Commission denied the motion and proceeded with the hearing.
The City called the Personnel Director for the City and offered various documents as evidence. Mr. Sims testified in his own behalf. The Commission upheld the City Manager's decision to dismiss Mr. Sims and issued its findings in a letter addressed to the City Manager.
Mr. Sims filed a Petition for Review in the circuit court, naming the City, the City Council, the Commission, and the City Manager in both their individual and official capacities as defendants. The circuit court entered Findings of Fact and Conclusions of Law and ordered Defendants to reinstate Mr. Sims with back pay, attorney's fees, and court costs. Defendants timely filed their notice of appeal.
STANDARD OF REVIEW
Although this case is an appeal from the circuit court's judgment, we review the Commission's findings and conclusions rather than the circuit court's judgment. Smith v. Morton, 890 S.W.2d 403, 405 (Mo.App.E.D. 1995). Our review is limited to determining if the Commission's decision is supported by substantial competent evidence based on the record as a whole, whether the decision is arbitrary, capricious or unreasonable, or whether the agency abused its discretion. Missouri Commission on Human Rights v. Red Dragon Restaurant, Inc., 991 S.W.2d 161, 165 (Mo.App.W.D. 1999). In making this determination, we construe the evidence in the light most favorable to the Commission's decision, together with all reasonable inferences therefrom. Laclede Cab Co. v. Missouri Commission on Human Rights, 748 S.W.2d 390, 394 (Mo.App.E.D. 1988). Further, we will defer to the Commission's determination of the credibility of witnesses. Joplin v. Missouri Commission on Human Rights, 642 S.W.2d 370, 372 (Mo.App.S.D. 1982). The Commission's findings and decision will be reversed only if there is no substantial evidence to support it. Weber v. Firemen's Retirement System, 899 S.W.2d 948, 950 (Mo.App.E.D. 1995).
ARGUMENT
In their first point, Defendants argue the circuit erred in finding there was no competent and substantial evidence on the record as a whole to support the Commission's decision to uphold the City Manager's termination of Mr. Sims. We agree.
The City Manager's letter listed the following as reasons for Mr. Sims' termination:
1. Your failure to hire personnel pursuant to Article VII, section 2 of the City Charter.
2. Your failure to require subordinates to complete the fire training academy in a timely manner.
3. For compromising the safety of the citizens of Berkeley, by not having an adequate number of trained firefighters on duty on June 3, 1999.
4. For restricting fire department personnel from going to City Hall, without first notifying you, which is contrary to the open door policy I established.
5. For your inefficiency in the performance of the duties of your position.
The Commission found the City established two of the five points in the termination letter. The Commission concluded Mr. Sims as part of the City Administration had violated the hiring procedures set forth in the City Charter and in the Personnel Rules and Regulations and was inefficient in the performance of his duties. Specifically, the Commission found he was inefficient in that he was negligent in the use of a City-owned vehicle; failed to take action on a complaint in violation of the Personnel Rules and Regulations; and signed a check in violation of the City Council's spending moratorium.
Defendants did not raise this issue on appeal. In fact, Defendants conceded at oral argument that this issue was not supported by competent and substantial evidence.
1. Violation of hiring procedures.
Article VII, Section 2 of the City Charter states all employees in the classified service of the City shall be selected on the basis of merit ascertained as nearly as practicable by competitive examinations. Section 3.06 (g) of the Personnel Rules and Regulations, Special Procedures for Police and Fire Applicants reads as follows:
All applicants to police and fire department appointment shall be selected from an eligibility list using the following procedures:
1. Written tests will be given to each applicant and will constitute 25% of the total grade.
2. An oral interview will be conducted with the applicant by a review board made up of the Civil Service Board, the City Manager, and the respective department head or their representative. The oral interview will constitute 35% of the total grade, excluding the City Manager and the department head which shall be computed as provided below.
3. Each applicant will be rated by the City Manager and the respective department head or their representatives. The average of these ratings shall constitute 40% of the total grade and shall be rated in final form at the oral interview.
The Commission found only two of the three parts of the competitive examination took place for the last six fire department hires. Specifically, they found no interviews were held before the Commission.
A review of the record shows no Civil Service Board hearings were held for the last six fire department employees hired by Mr. Sims. Mr. Sims testified he did not seek to have interviews done with the Commission. Accordingly, we find the Commission's finding that Mr. Sims violated the City's hiring procedures was based on competent and substantial evidence.
2. Failure to report a complaint against a firefighter.
Section 6.06 of the Personnel Rules and Regulations is as follows:
Upon receiving a report of a violation of the law or a violation of a departmental disciplinary regulation as set forth in Section 6.05 from a member of the City Service from any citizen, the Department Head or City Manager will investigate. This investigation will be made with the purpose of ascertaining the facts of the alledged [sic] offense. In the investigation of a written complaint against an employee, a copy of the complaint and report of the investigation will be forwarded to the City Manager. The report shall include a written statement from the employee against whom the complaint was filed. All disciplinary action taken by a Department Head shall immediately be reported in full to the City Manager.
The Commission found Mr. Sims violated Section 6.06 of the Personnel Rules and Regulations in that he failed to take the proper action as directed by that section.
The City offered a letter addressed to the City Manager complaining that a firefighter had been observed working at the election polls for a candidate on a day when the firefighter had called in sick. The letter went on to say that Mr. Sims had been informed of the incident but had done nothing about it.
Mr. Sims admitted he received a complaint regarding the firefighter and stated he conducted an investigation but he did not prepare a report and forward it to the City Manager. Accordingly, we find there was competent and substantial evidence to support the Commission's finding that Mr. Sims violated Section 6.06 of the Personnel Rules and Regulations.
3. Violation of the City Council's directive on spending.
Minutes of the December 1998 meeting of the City Council reflect their vote to put a moratorium on spending. Specifically, the minutes note: "Everything that comes across James L. Trimble [sic] desk, this council must see before it is spent." Additionally, 0he mayor sent a memo to James L. Trimble, the acting City Manager, with a copy to all department heads, including Mr. Sims, stating:
The Council met and reviewed the present budget. In their review it was decided before any additional expenses are incurred, a sign off by the Acting City Manager and Council would be needed. This does not include payroll or essential items needed to continue daily operations. This decision will be adhered to until further notice from the Council.
On February 10, 1999, Mr. Sims executed a check in the amount of $168,000 to the Metropolitan St. Louis Legal Services Corporation, the law firm of the City Attorney, Elbert Walton.
Mr. Sims testified he had signed the check as the primary signator but could not recall whether he had seen an invoice for the amount of the check. He testified that as a department head he was required to attend City Council meetings, and he remembered "some kind of memo like that" but could not remember whether he received it before or after he signed the check. He testified either he or his secretary checks his mailbox at City Hall each day. Additionally, there is no evidence the check was for payroll or essential items.
The Commission found Mr. Sims had sufficient knowledge that the bill submitted by the law firm had not been authorized for payment by the City Council, and the City Council had specifically ordered that a moratorium on spending be put in place. Accordingly, the Commission found Mr. Sims violated the directions of the City Council by signing a check to the City Attorney without approval of the City Council during a spending moratorium.
We will not substitute our judgment on issues of fact determined by the Commission and will defer to the Commission's determination of the credibility of witnesses. Conway v. Missouri Commission on Human Rights, 7 S.W.3d 571, 573 (Mo.App.E.D. 1999). Accordingly, we find there was competent and substantial evidence upon which the Commission based its finding that Mr. Sims violated the Council's moratorium on spending.
Mr. Sims claims and the circuit court found the Commission based its determinations upon hearsay testimony and hearsay documents. Specifically, Mr. Sims contends the Personnel Director's testimony was hearsay and documents were admitted without any evidence indicating they were business records.
Section 536.070(10) governs the admissibility of business records in an administrative hearing. State ex rel. Sure-Way Transportation, Inc. v. Division of Transportation Department of Economic Development, State of Mo., 836 S.W.2d 23, 26 (Mo.App.W.D. 1992). It relaxes the requirements and permits admission of a document "if it shall appear that it was made in the regular course of any business, and that it was the regular course of such business to make such . . . record at the time of such . . . transaction . . . or within a reasonable time thereafter." Id. The document's custodian or preparer need not be present to sponsor the document. Id. Further, Section 536.070(10) provides, "All other circumstances of the making of such . . . record, including the lack of personal knowledge by the entrant or maker, may be shown to affect the weight of such evidence, but such showing shall not affect its admissibility." Id. at 27. Here, the Personnel Director presented and adequately explained the minutes of the City Council meeting and memorandum regarding the spending moratorium and the letter of complaint regarding the firefighter. Additionally, the Personnel Director testified he was familiar with the Personnel Rules and Regulations and the City's Charter. Accordingly, we find that the foundational requirements for admission were satisfied.
We note and the City concedes there is hearsay evidence in the record. Nevertheless, we find that there is ample evidentiary support for the Commission's decision in the nature of the direct non-hearsay testimony of Mr. Sims and the documents of the City properly introduced by the personnel director pursuant to Section 536.070, RSMo 2000. Accordingly, we find there was competent and substantial evidence upon which the Commission based its findings on each of the three issues. A finding of substantial and competent evidence on any one of the three would be sufficient to affirm the Commission's decision to uphold the termination of Mr. Sims. Therefore, we find the circuit court erred in reversing the decision of Commission.
Mr. Sims also contends the Commission erred in admitting evidence of charges not specified in the termination letter. Specifically, Mr. Sims contends "for your inefficiency in the performance of your duties" was too general and vague to apprise him of the charges against him and, consequently, he was unable to adequately defend himself and was thus denied due process.
Proof of prejudice is required to show a denial of due process.Larocca v. Board of Registration for the Healing Arts, 897 S.W.2d 37, 44 (Mo.App.E.D. 1995). Mr. Sims conducted a thorough cross-examination and refused two offers for a continuance of the hearing. Further, Mr. Sims does not assert that he would have changed his defense strategy or called additional witnesses if the charges had been more specific. We find that Mr. Sims has failed to show he was prejudiced.
Next, Defendants contend the trial court erred in finding the Commission was without jurisdiction to review Mr. Sims' dismissal, and he was denied procedural due process because a hearing was not held within ten days of his receipt of the termination notice. Additionally, Defendants claim even if the hearing was not timely held reinstatement is not the proper remedy. We agree.
It is undisputed that Mr. Sims' hearing was not held within ten days of his receiving notice of his dismissal. Defendants argue Article VII, Section 5 of the City Charter is a special provision for administrative review for department heads and does not require a hearing within ten days. The City, however, did not present this argument to the Commission. In fact, the City conceded at the hearing that the City Charter specifically states the Commission has ten days in which to convene and hold a hearing and this was not adhered to because there was a reorganization of the Commission. Additionally, the termination letter stated, "within ten (10) days after the receipt of this notice, you have the privilege of a public hearing before the Civil Service Board, who shall make the final disposition of the case."
Assuming, without deciding, Mr. Sims was entitled to a hearing within ten days after the receipt of his termination notice, we now turn to Defendants' argument that the trial court erred in finding the Commission did not have jurisdiction to review Mr. Sims' termination, that he was denied procedural due process, and thus should be reinstated.
We can find no law to support the circuit court's finding the Commission was without jurisdiction to review Mr. Sims' termination because the hearing was untimely. In fact, in cases where the Commission should have held a hearing but did not, the proper remedy is for the circuit court to remand for a hearing before the Commission. See Mosley v. Members of the Civil Service Board for City of Berkeley, 855 S.W.3d 855, 858 (Mo.App.E.D. 2000). Further, the record shows that Mr. Sims received a full hearing before the Commission on his request for review of his dismissal and was paid for the excess time; thus we find no prejudice and no denial of due process. Larocca, 897 S.W.2d at 44. Finally, we note reinstatement is not the proper remedy for failure to hold a timely hearing. See Brewer v. Chauvin, 938 F.2d 860, 864 (8th Cir. 1991) (noting the aim is to compensate the plaintiff for damages caused by a constitutional violation). Accordingly, we find the circuit court erred in ordering reinstatement on this ground.
Finally, Defendants contend the circuit court erred in entering judgment for reinstatement, back pay, and court costs against all Defendants, including the City Council, the Commission, and the City Manager in their individual and official capacities. Specifically, Defendants claim they should not be included because they were not parties to the hearing before the Commission. Because we are reversing the decision of the circuit court, we do not need to address this point.
This court reverses the judgment of the circuit court and reinstates and affirms the Commission's order of termination. Mr. Sims' Motion to Dismiss taken with the case is denied.
ROBERT G. DOWD, JR., Judge Crandall, P.J., and Crane, J., concur.