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10/05/93 HENRY MCCALL v. JOANN GOLDBAUM

October 5, 1993

HENRY MCCALL, RESPONDENT,
v.
JOANN GOLDBAUM, SUPERINTENDENT ST. LOUIS DEVELOPMENTAL DISABILITIES TREATMENT CENTERS, ET AL., APPELLANT.



Appeal from the Circuit Court of the City of St. Louis. Hon. Michael B. Calvin.

Robert E. Crist, Judge, Crandall, P.j., and Reinhard, J., concur.

The opinion of the court was delivered by: Crist

Affirmed with directions for case to be remanded to Board to determine amount of back pay.

On December 1, 1989, Employee, McCall, received a letter discharging him from his position as a Developmental Assistant I with the St. Louis Developmental Disabilities Treatment Centers (Employer) effective December 12, 1989. The letter stated the reason for his dismissal was Class II neglect, sexual abuse of clients, and consumption of alcohol on duty. According to the Counseling and Disciplinary guidelines contained in the record, sexual abuse of clients is the only one of these charges which carries a punishment of dismissal for a first offense.

Employee appealed his dismissal to the Personnel Advisory Board (Board). On May 29, 1990, the Board's Hearing Officer, Gene W. Spitzmiller, conducted a hearing. On June 22, 1990, the Board issued findings of fact and Conclusions of law, stating: "the reason given for the dismissal was Class II Neglect, sexual abuse of clients, and consumption of alcohol while on duty." It then concluded Employee was "guilty of abusive or improper treatment toward residents of St. Charles Habilitation Center" but he "did not consume alcohol on the premises." The Board made no findings as to whether Employee was guilty of either Class II neglect or sexual abuse of clients.

Employee sought judicial review in the St. Louis City Circuit Court, alleging the Board wrongfully found him guilty of an offense for which he was not charged. The trial court found in favor of Employee and reversed the Board's decision. In doing so, it found:

The board reviewed the dismissal of the Petitioner for three reasons: Class II Neglect, Sexual Abuse of clients, and consumption of alcohol. In order to support the dismissal of the Petitioner the Board would have to have found Petitioner 'guilty' of sexual abuse of clients. It did not. Instead the Board found the Petitioner 'guilty' of an entirely different offense, Client Abuse and Neglect, the penalty for which is also dismissal. To find Petitioner 'guilty' of an offense that he was not cited with violating is both an abuse of discretion and arbitrary, capricious, and abusive. Even after a review of the offense of Client Abuse and Neglect, DOR 2.205, 1 CSR 20-3.070(2)(D) the Court is not convinced that the Board's decision was supported by competent and substantial evidence upon the record.

The court ordered Employee reinstated with full back pay.

Employer appeals alleging the Board's decision to terminate Employee was supported by competent and substantial evidence on the whole record and was not an abuse of discretion. Employer also argues, in the event the court's decision is upheld, the case should be remanded to Board to determine the amount of back pay.

On appeal, we review the decision of the Board, not the decision of the circuit court. Brougham v. City of Normandy, 812 S.W.2d 919, 921 [1] (Mo. App. 1991). In reviewing this decision, we determine whether the Board could have reasonably reached its decision. Kramer v. Mason, 806 S.W.2d 131, 134 [2] (Mo. App. 1991). We may not substitute our judgment of the evidence for that of the Board, and we may not set aside the Board's decision unless it is not supported by competent and substantial evidence. Id. However, we are not bound by the Board's decision on questions of law. Brixey v. Personnel Advisory Bd., 607 S.W.2d 825, 827 [2] (Mo. App. 1980).

Regular, nonprobationary employees of the State of Missouri have a "property" interest in their job and can be discharged only for cause. Chapman v. Board of Probation and Parole, 813 S.W.2d 370, 371 [1] (Mo. App. 1991). Due process requires a person facing deprivation of a property interest must receive notice and an opportunity for a hearing appropriate to the nature of the case. Moore v. Bd. of Educ. of Fulton School, 836 S.W.2d 943, 947 (Mo. banc 1992). Whether adequate notice was given is a question of law; therefore, the decision of the Board is not binding on the reviewing court. Brixey, 607 S.W.2d at 827.

Section 36.380, RSMo 1986, provides in part: "no dismissal of a regular employee shall take effect unless, prior to the effective date thereof, the appointing authority gives to such employee a written statement setting forth in substance the reason therefor and files a copy of such statement with the director."

The purpose of this notice requirement is to adequately inform an employee of the reason for his discharge and to enable him to attempt to prepare a defense to that reason. Brixey, 607 S.W.2d at 827.

The letter sent to Employee stated: "the reason for your dismissal is Class II Neglect, Sexual Abuse of St. Louis Developmental Disabilities Treatment Centers clients and Consumption of Alcohol While on Duty." This notice alone did not enable Employee to ...


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