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McSwain v. Morton

Court of Appeals of Missouri, Western District, Third Division

December 23, 2014

ELLIS McSWAIN, APPOINTING AUTHORITY, and THE BOARD OF PROBATION AND PAROLE, MISSOURI DEPARTMENT OF CORRECTIONS, Respondents,
v.
CLETUS ANDREW MORTON, Appellant

Page 200

[Copyrighted Material Omitted]

Page 201

Appeal from the Circuit Court of Cole County, Missouri. The Honorable Patricia S. Joyce, Judge.

For Respondents: Jay D. Boresi, Jefferson City, MO.

For Appellant: David J. Moen, Jefferson City, MO.

Karen King Mitchell, Presiding Judge. Cynthia L. Martin and Gary D. Witt, Judges, concur.

OPINION

Page 202

Karen King Mitchell, Presiding Judge

Cletus Morton appeals the decision of the Circuit Court of Cole County, reversing the determination of the Administrative Hearing Commission (AHC) that Ellis McSwain, the appointing authority for the Division of Probation and Parole (Division), did not have cause to dismiss Morton from employment. We affirm the circuit court's judgment.

Facts

The Division, organized within the Department of Corrections (Department), is overseen by the Board of Probation and Parole. Ellis McSwain is both the chairman of the Board and the appointing authority. At the time of his termination, Cletus Morton was a Probation and Parole Officer II at the Division's 10-R District Office in Springfield, Missouri.

Morton's job duties consisted of ensuring that felony probationers and parolees complied with the law, counseling probationers regarding their personal and adjustment problems, advising the courts regarding potential probation revocation, and working in conjunction with local law enforcement.

On the evening of October 8, 2010, Morton was watching his seven-year-old daughter when he consumed between one-half and three-quarters of a 750 ML bottle of vodka. Morton's behavior around his daughter caused her to call her mother, Morton's ex-wife, and ask to be picked up because she did not want to stay with Morton. Mother picked up their daughter, and as she was backing her car out of the driveway, Morton emerged from the home with a .40 caliber Glock handgun. In full view of his daughter, Morton fired

Page 203

two shots at his head, in an apparent suicide attempt. One shot missed his head completely and hit the roof of his home. The second shot grazed Morton's face and also hit the roof. Neither round was recovered, and either or both may have gone through the roof and into the neighborhood.

After firing the shots and still in possession of his loaded firearm, Morton went back into the house and locked himself in a closet. While Morton was locked in the closet, Greene County police surrounded his home, formed a defensive perimeter, and blocked a portion of the street. When the police knocked on the door, Morton did not respond. While in the closet, Morton phoned his girlfriend and told her that he would kill himself if the police entered his house.

Eventually, Morton called the police and indicated that he would surrender. As Morton exited the house, the police formed a four-man arrest team: one officer was armed with a taser, one had his service weapon, a third was on the ground nearby with an AR-15 rifle, and a fourth officer placed Morton under arrest. Morton was charged with unlawful use of a weapon, a class D felony. The charge, however, was subsequently dismissed.

Following his arrest, Morton was involuntarily committed for a 96-hour mental health evaluation. On October 12, 2010, Morton was placed on administrative leave. The District Administrator for the Division, Bill Abbett, investigated the incident and met with Morton. During the investigation, three employees approached Abbett with concerns involving safety should Morton return to work. Morton attended substance abuse counseling during his administrative leave and through the date of the hearing.

After the investigation was complete, McSwain received the investigative packet, including a written statement from Morton. After considering the circumstances surrounding the incident, as well as Morton's fourteen-year career with the Division, McSwain determined that termination of Morton's employment was necessary for the good of the service. On April 7, 2011, McSwain gave Morton a letter, terminating his employment as of April 29, 2011. The letter set forth the following grounds for dismissal:

On or about October 8, 2010, Greene County Police Officers were dispatched to your home based on a 911 call from your ex-wife. She reported that you were intoxicated and had fired two rounds from a Glock pistol. Reports indicated that you made threats to take your own life. You barricaded yourself within your house and threatened to shoot if officers forced their way in. Following an extended period of negotiation with the police, you exited your residence and were taken into custody. While in custody, you stated " My goal tonight was to kill myself and I'm so fucked up that I can't even do it."
In a written statement you provided to District Administrator Bill Abbett, you admitted that on the evening of October 8, 2010, you became very intoxicated. You then exited your residence to the front porch and fired two rounds into the house with your handgun that you are certified to carry as a Probation and Parole Officer.
Your actions were inappropriate, unprofessional and in violation of the following Missouri Department of ...

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