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Cash v. Missouri Dep't of Revenue

Court of Appeals of Missouri, Western District, Fourth Division

May 12, 2015

MICHAEL CASH, Appellant,

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

Philip O. Willoughby, Jr., Kansas City, MO, for appellant.

Yamini Laks and Dale W. Miller, Jefferson City, MO for Respondent.

Before Division Four: Alok Ahuja, C.J., James E. Welsh, J. and Patrick W. Campbell, Sp.J. All concur.


Alok Ahuja, Chief Judge.

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Michael Cash was a tax auditor with the Department of Revenue (the " DOR" or " Department" ). The DOR terminated Cash's employment on the basis that he had failed to comply with the Department's document handling policies during an audit. Cash appealed to the Administrative Hearing Commission (the " AHC" or " Commission" ), contending that his termination was " not for the good of the service." The Commission agreed, and reinstated Cash to his position. The Circuit Court of Cole County reversed the AHC's decision. This appeal follows. We conclude that substantial evidence supported the Commission's determination that Cash did not commit misconduct, and that his termination was therefore not for the good of the service. We accordingly reverse the circuit court's judgment, and affirm the decision of the AHC.

Factual Background

Cash was employed as an auditor with the Department for almost twenty-seven years. Beginning in March 2010, Cash and fellow tax auditor Mary Winkert conducted

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an on-site audit at UMB Bank's Kansas City offices. UMB employee Jennifer Parker served as their on-site liaison.

UMB provided Cash and Winkert with access to a secure room in which they could review confidential UMB documents. Parker orally advised Cash and Winkert that they should flag any documents they wished to have copied, and UMB would copy the documents for them. Although there was no internet access in the room in which Cash and Winkert were working, the room contained an operable fax machine.

On April 7, 2010, Cash attempted to use the fax machine to transmit a UMB document back to his office. The document was a credit-card statement; because of the large amount of data contained in the statement, Cash explained that it would have been helpful for him to have access to the statement at his office. Cash aborted the fax transmission by pulling the document out of the fax machine, and confirmed with a secretary at his DOR office that no document had been received. Cash instead flagged the document for copying and continued to work.

A UMB employee later found a report on the fax machine which indicated that a fax transmission had been attempted. Both Parker and fellow UMB employee Richard Hess spoke to Cash about the attempted fax. Cash admitted that he had attempted to fax a document back to his office, but told Parker and Hess that no fax had gone through. Nevertheless, as a result of UMB's concern over the incident, UMB halted the audit and escorted Cash and Winkert from the building. Cash and Winkert reported the incident to their supervisors, including area manager Cecille Swan. Parker likewise spoke with Swan. Parker testified that based on the fax incident, Cash would not have been allowed to return to UMB's offices to continue the audit.

On April 19, 2010, the Department notified Cash that he was being terminated. In Cash's termination letter, DOR Field Compliance Bureau Administrator Scott Leary stated that

[t]his action is being taken because, during the course of an audit on April 7, 2010, you failed to comply with basic audit performance expectations and with the express instructions of the taxpayer regarding the safeguarding of confidential records. The taxpayer had clearly communicated its procedure for requesting and providing copies of records being audited. However, you attempted to circumvent such procedure by using the taxpayer's facsimile machine to transmit a copy of the taxpayer's credit card statement to the Field Compliance Bureau Office without the taxpayer's knowledge or consent.
Your conduct is such that the termination of your employment is required in the interests of efficient administration and the good of the Department will be served thereby. Effective immediately, you are being placed on ...

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