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St. Louis Police Leadership Organization v. St. Louis Board of Police Commissioners

Court of Appeals of Missouri, Eastern District, First Division

July 7, 2015


Appeal fro the Circuit Court of the City of St. Louis. Honorable David Dowd.

Rick Barry, St. Louis, MO, for appellant.

Andrew J. Martone, St. Louis, MO, for respondents.



At the heart of this matter is a collective-bargaining dispute involving the St. Louis Police Metropolitan Police Department. Importantly, this dispute was pending when control of the police department transferred from the St. Louis Board of Police Commissioners to the City of St. Louis. We hold that the dispute between the between the parties is moot, and therefore dismiss the appeal.

Factual and Procedural Background

In 2011, the St. Louis Police Leadership Organization, a labor organization, sought recognition as the exclusive collective-bargaining representative for two separate, proposed bargaining units: one comprised of commissioned officers of the St. Louis Police Department holding the rank of Lt. Colonel, Major, Captain, and Lieutenant (the " Command Staff" unit), and the other comprised of commissioned officers from the department holding the rank of Sergeant. At the time, control and operation of the police department rested with the St. Louis Board of Police Commissioners.

The Board denied both requests, one in whole, the other in part. The Board declined to recognize the proposed Command Staff bargaining unit, finding such unit inappropriate because the positions at issue involved a high degree of supervisory authority, required confidentiality, and were integral to the decision-making process of the department,[1] The Board did not outright deny the proposed Sergeants' unit, but instead elected to exclude various Sergeant positions from the proposed unit because those positions involved high degrees of supervisory, managerial, and/or confidential work.[2] The Board made its determinations pursuant to Rule 13, a rule promulgated by the Board following the Missouri Supreme Court's decision in Independence-Nat'l Educ. Ass'n v. Independence Sch. Dist., 223 S.W.3d 131 (Mo. banc 2007).[3] The rule set forth a written framework for the Board to engage in the collective-bargaining process with its police officers, including a framework for the establishment and recognition of appropriate bargaining units.

The labor organization initiated a declaratory-judgment action alleging that the Board's decisions violated the Board's obligation under Article I, Section 29 of the Missouri Constitution and the Missouri Supreme Court's mandate in Independence, to create a reasonable framework to allow the officers to exercise their right to bargain collectively through representatives of their own choosing. In the organization's view, the Missouri Constitution and Missouri Supreme Court precedent grant all public employees -- not just some -- the right to collectively bargain by and through representatives of their own choosing, regardless of whether their positions require a high degree of supervisory authority, confidentiality, or are integral to the internal and external decision-making process, or the belief that their inclusion in a bargaining unit would create an irreconcilable conflict of interest with the department. The labor organization requested the circuit court conduct its own hearing to review the issues and determine the facts, including, but not limited to: (1) a sufficient showing of interest by the commissioned officers holding the rank of Lt. Colonel, Captain, and Lieutenant to appoint the St. Louis Police Leadership Organization as their exclusive bargaining representative; (2) the appropriate scope of the bargaining unit that would include Lt. Colonels, Captains, and Lieutenants; (3) the appropriate scope of the bargaining unit that would include only Sergeants; (4) whether certain Sergeants should be excluded from the bargaining unit; (5) the framework the Board must establish with respect to its recognition of an appropriate bargaining unit; and (6) any and all other issues the court deemed just and necessary under the facts and circumstances of the case.

On September 1, 2013, while the action was pending in the circuit court and the parties were still briefing their respective positions, control of the St. Louis Police Department changed from the Board to the City of St. Louis. Three months later, the circuit court heard oral arguments. During that hearing, the circuit court itself raised the issue of the change and inquired how dissolution of the Board impacted the case. Counsel for the labor organization argued that the city ordinance effecting the change spoke for itself, and that by that ordinance, the City had accepted the obligation for the consequences of the application of Rule 13.[4] Counsel for the Board, who was in private practice and was retained by the Board to represent its interest, on the other hand, argued that the change rendered the case moot. He noted that if the court ordered the Board to act, it would be an order without a purpose or effect because the Board could not comply with the order because it no longer had power or authority to act. Counsel further emphasized that he did not have authority to speak for the City. The City never made an appearance in the case, nor was it substituted or added as a party.

The circuit court ruled against the labor organization, The court in its judgment did not mention the change in control, nor the effect of that change on the case. Rather, the court confined its discussion to the actions of the Board and the questions presented by the declaratory-judgment action about the appropriate scope of the Command Staff bargaining unit and whether certain Sergeants could be excluded from the Sergeants' bargaining unit. The court acknowledged that a public employer has a constitutional duty to bargain collectively with public employees, but then noted that the Missouri Supreme Court, in Missouri Nat'l Educ. Assoc. v. Missouri State Bd. of Mediation, 695 S.W.2d 894, 897 (Mo. banc 1985), held that the legislature did not intend for all persons on the public payroll to be considered employees for bargaining purposes, because in the course of labor relations, someone must act on behalf of and for the interest of the public employer. Next, the court noted that it is the responsibility of the public employer -- the Board here -- to exclude from an otherwise appropriate bargaining unit those employees, if any, whose duties involve acting directly or indirectly in the interest of the employer in relation to other employees, And lastly, the court noted that Missouri Supreme Court precedent recognizes that managerial, supervisory, and confidential employees may be excluded from the collective-bargaining process. The circuit court ultimately concluded that the organization had not shown that the Board's decision finding the Command Staff group an inappropriate bargaining unit, and its decision excluding certain Sergeants from the Sergeants' bargaining unit, were not supported by competent and substantial evidence or that they were arbitrary, capricious, or unreasonable -- the kind of showings that must be made to overturn the Board's decision. Accordingly, the circuit court denied the organization's request to appoint it as the exclusive bargaining representative of the proposed bargaining units and declined to substitute its judgment for that of the Board's by declaring the scope of an appropriate bargaining unit. The labor organization appealed to this Court.[5]

We ordered the parties to brief and orally argue the issue of mootness. Specifically, we asked the parties to address the following issues: whether the circuit court's judgment bound the City of St. Louis, whether the City should have been substituted for the board, and whether the appeal should be dismissed as moot. In those briefs, and at oral argument, the labor organization maintained that the case was not moot, and the decision binding on the City because the City had accepted responsibility, ownership, and liability as successor-in-interest for all lawful obligations of the Board by virtue of the state statute and city ordinance. In support, the organization pointed out that the City had used Rule 13 in another matter. The Board, as it did in the circuit court, argued that the case was moot because the change of control over the police department made granting effectual relief impossible. Counsel for the Board also made clear, as he did in the circuit court, that he did not represent the City. We kept the record open past oral arguments, to allow the parties additional time to file materials in support of their respective positions. Filings were made, but conspicuously absent was anything from or about the City, its position on matters, or even that it was aware of the case.


" A threshold question in any appellate review of a controversy is the mootness of the controversy." Kinsky v. Steiger, 109 S.W.3d 194, 195 (Mo. App. E.D. 2003)(quoting State ex rel. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001)). It is well-settled that the Missouri courts do not determine moot cases. Kinsky, 109 S.W.3d at 195. " A moot case raises the issue of justiciability, and therefore courts may dismiss it sua sponte." Id. " A question is justiciable only where the judgment will declare a fixed right and accomplish a useful purpose." Id. (citing Local Union 1287 v. Kansas City Area Transp. Auth., 848 S.W.2d 462, 463 (Mo. banc 1993)). " When an event occurs that makes a court's decision unnecessary or makes granting ...

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