APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY. The Honorable Byron L. Kinder, Judge
Before Turnage, P.j.; Breckenridge and Spinden, JJ.
The opinion of the court was delivered by: Turnage
Ralph Wheat filed a motion for contempt against the Director of The Division of Classification and Treatment of the Missouri Department of Corrections *fn1 for failure to comply with a judgment that he be reinstated to his former position as a Corrections Officer I with the Missouri Department of Corrections. The court denied the motion and Wheat appeals. Wheat contends the Division violated the court order by failing to reinstate him to his former position at his previous job location. Affirmed.
Wheat had been employed as a Corrections Officer I with the Missouri Department of Corrections since November 1986. He was dismissed in June 1989. Wheat appealed his dismissal to the Board which issued an order disapproving the dismissal and ordered that Wheat be reinstated to his "former position." Wheat was subsequently reinstated as a Corrections Officer I at the Missouri State Penitentiary (MSP) in Jefferson City. However, Wheat refused to report to work at the penitentiary claiming that he should have been able to return to his former assignment at the Fulton Reception and Diagnostic Center (FRDC) which apparently had no vacant positions available at the time of his reinstatement in October 1990. *fn2
In August of 1991, Wheat filed a motion for contempt and request for declaratory judgment alleging that the Division acted in violation of the court's order. The motion was dismissed by the trial court for lack of jurisdiction and Wheat appealed to this court. This court reversed and remanded the case to the circuit court for further proceedings in Division of Classification and Treatment v. Wheat , 829 S.W.2d 581 (Mo. App. 1992).
On remand, the trial court held an evidentiary hearing and subsequently issued an order denying Wheat's motion for contempt. In December 1992, Wheat filed a motion for rehearing or reconsideration of the evidence. The Division filed a motion to strike Wheat's motion for rehearing which was sustained. Wheat now appeals the trial court's order denying his motion for contempt.
Wheat contends the trial court erred in denying his motion for contempt alleging that his reinstatement as a Corrections Officer I at the MSP rather than at the FRDC location constituted a failure of the Division to comply with the court's order to reinstate him to his "former position." The issue before this court is whether the language of the trial court's order requiring that Wheat be reinstated to "his former position" entitles him to be reinstated as a Corrections Officer I at FRDC.
The trial court's order affirming the Board's decision states in pertinent part:
It is therefore ORDERED, ADJUDGED and DECREED that the Personnel Advisory Board Decision dated November 3, 1989, is affirmed in all respects and [the Division] is ordered to reinstate [Ralph Wheat] to his former position and to pay such salary as he has lost by reason of his dismissal.
On October 16, 1990, the Director of the Division sent a letter to Wheat notifying him that pursuant to the trial court's order he would be reinstated to his former position as a Corrections Officer I with the Missouri Department of Corrections and would receive compensation for lost wages. Riley also informed Wheat that because there were no vacant positions available at the FRDC location, it would be necessary to modify his assignment to the MSP and that he should report for work on October 22, 1990. *fn3
Although Wheat claims that the court-ordered reinstatement to his former position meant that he should be returned to his previous job location at the FRDC, the order does not specify such nor mention the FRDC. The language of the court order stating that Wheat must be "reinstated to his former position" is derived from § 36.390.5 RSMo 1986, which states, in pertinent part, that:
Any regular employee who is dismissed or involuntarily demoted for cause . . . may appeal in writing to the board within thirty days . . . . After the hearing and consideration of the evidence for and against a dismissal, the board shall approve or disapprove such action and may make any one of the following appropriate orders:
(1) Order the reinstatement of the employee to his former position and the payment to the employee of part or all of such salary as has been lost by reason of such dismissal.
Since the order upheld by the circuit court was originally the decision of the State Personnel Advisory Board, it is appropriate to consider state regulation 1 CSR 20-1.020 which ...