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International Association of Firefighters, Local Union No. 42 v. Jackson County

Court of Appeals of Missouri, Western District, Second Division

August 1, 2017

INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL UNION NO. 42, Appellant,
v.
JACKSON COUNTY, MISSOURI, Respondent.

         Appeal from the Circuit Court of Jackson County The Honorable Stephen K. Willcox, Judge

          Before: Cynthia L. Martin, P.J., and Lisa White Hardwick and Alok Ahuja, JJ.

          Alok Ahuja, Judge

         David Mitchell's employment as an Assistant Prosecuting Attorney in the Jackson County Prosecuting Attorney's Office was terminated in August 2011. Mitchell was a member of Local 42 of the International Association of Firefighters, and his employment with the Prosecuting Attorney's Office was governed by a collective bargaining agreement. Mitchell's union representatives filed a grievance challenging his termination. Following an evidentiary hearing, an arbitrator vacated Mitchell's discharge, and substituted a one-day suspension in its place.

         The Jackson County Prosecutor and Jackson County Executive exercised their joint authority under the collective bargaining agreement to review the arbitrator's decision. They issued a joint decision modifying the arbitration award, and reinstating Mitchell's discharge. Local 42 filed suit in the Circuit Court of Jackson County, contending that management's modification of the arbitration award constituted a breach of the collective bargaining agreement. The circuit court granted summary judgment to Jackson County, thereby upholding management's decision to terminate Mitchell's employment. Local 42 appeals. We affirm.

         Factual Background

         Mitchell served as an Assistant Prosecuting Attorney from 2001 until his termination in August 2011. Mitchell was one of three attorneys terminated by Jackson County Prosecutor Jean Peters Baker in the summer of 2011, shortly after she took office on May 6.

         Like all of the assistant prosecuting attorneys in the Jackson County Prosecuting Attorney's Office, Mitchell was represented by Local 42 of the International Association of Firefighters. At the time of Mitchell's termination, Local 42 and Jackson County were parties to a collective bargaining agreement which specified the terms and conditions of the assistant prosecuting attorneys' employment. Local 42 filed a grievance concerning Mitchell's termination, and the parties advanced to arbitration under the collective bargaining agreement's grievance procedure.[1]

         Mitchell's termination grew out of his conduct in the case of State v. Oswaldo Chavez, No. 0916-CR05742, filed in the Circuit Court of Jackson County. The Chavez case originated in a tip from a confidential informant to Jackson County Sheriff's Deputy Caleb Carter. Based on the tip, a car that Chavez was driving was stopped and searched on November 13, 2009. A substance believed to be methamphetamine was found in a hidden compartment on the passenger side of the vehicle. Chavez gave a post-arrest statement to Deputy Carter. He was ultimately charged with attempted trafficking of a controlled substance.

         Defense counsel in the Chavez case filed a written discovery request on April 27, 2010. Although Mitchell contended that he provided responsive discovery materials to defense counsel informally, it is undisputed that Mitchell provided no written response to defense counsel's discovery request until March 22, 2011, eleven months after the request was filed.

         After an earlier continuance, the Chavez case was set for trial on Monday, March 21, 2011. On March 15, 2011, Chavez's counsel filed a motion to exclude the prosecution's witnesses, due to Mitchell's failure to respond to discovery. On Thursday, March 17, 2011, Mitchell filed an Application for Continuance, in which he stated that "[t]he State's continuance request is due to the State has yet to receive laboratory report on the drugs."

         A hearing was held in the Chavez case on Friday, March 18, 2011. At that hearing, Mitchell informed the court that "the Independence Crime Lab has a backlog and they have yet to test the drugs, so I'm trying to get them to expedite that." In response, defense counsel stated that her investigator had contacted the crime lab the day before, and the lab indicated that it had no record of a request for drug testing. Defense counsel argued that the reason the prosecution did not have any report of a laboratory analysis was that the prosecution had never requested testing of the substance seized in November 2009. In response, Mitchell made a series of statements to justify the delay in testing the seized substance:

Your Honor, in response, what she alleges, that there was no request for the drugs to be tested, is not accurate. I had Dept. Ledean in my office, and we called over to the Crime Lab. The drugs just made it to the Crime Lab in December of last year[, and were in the police department's property room until that time].
And according to the deputy, what they're starting to do now is to send [substances to be tested] over to KCPD because they can get them back in a more timely fashion. But at this point, your Honor, the backlog for Independence Crime Lab is just a huge backlog.
And I just found out Wednesday that the drugs had not been tested when Dept. Ledean was in my office, and he called the Crime Lab and he verified that it had not yet been tested. So I just found that out Wednesday, and I filed the application for a continuance yesterday. So -

         When defense counsel expressed confusion as to why the seized evidence had been sent to the Independence Crime Lab, rather than to Kansas City, Mitchell explained that this occurred "[b]ecause KCPD didn't recover the drugs; Jackson County Sheriff's Department recovered the drugs. So, therefore, it went to the Independence Crime Lab."

         Later in the hearing, defense counsel stated that, on a break, she had contacted the Independence Crime Lab herself, and was told that they had no record of any substance associated with the Chavez case. Mitchell responded:

I don't understand that because Dept. Ledean, if I'm pronouncing it correctly, he called from my office and verified that the drugs were there, they had arrived in December. So I don't know what information [defense counsel] gave them. But he did call to verify they were there, that they had not yet been tested.
So when she said that they're not there, the State - is that her statement is in error. They are there. They're just waiting to be tested.

         In reliance on Mitchell's statements, the circuit court denied Chavez's motion to exclude the State's witnesses, and continued the trial of the case to July 18, 2011.

         As the arbitrator found, despite Mitchell's repeated statements to the circuit court, "[i]t is undisputed that there has not been any detective named Ledean. It is also undisputed that the substance to be tested has never been in any Independence lab." To the contrary, the evidence reflected that, on March 16, 2011, an officer with the Jackson County Sheriff's Department requested that the State Highway Patrol Crime Laboratory in St. Joseph conduct "rush" testing of the seized substance; the officer made the March 16 request at Mitchell's direction. There was no evidence of any prior request that the evidence be tested.

         At the arbitration hearing, Mitchell claimed that he referred to "Deputy Ledean" at the March 18, 2011 hearing in error, and that he instead intended to refer to Sheriff's Deputy Tony Uredi. Mitchell claimed that Deputy Uredi is the one who informed Mitchell that, "per procedure, they took [the seized substance] to the Independence Crime Lab." Mitchell testified that Deputy Uredi was with Mitchell, in Mitchell's office, when they spoke to the Independence Crime Lab by telephone, although Mitchell testified that could not recall if that occurred on March 16, 2011 (as he represented to the court on March 18), or instead on another date. Mitchell testified that, as a result of his further inquiries, he later learned that the substances had instead been taken to the Highway Patrol Crime Lab in St. Joseph. Deputy Uredi testified at the arbitration hearing that he had never met with Mitchell in Mitchell's office, and was never with Mitchell when the crime lab was called concerning the status of drug testing.

         One other discovery issue from the Chavez case figured in this disciplinary proceeding. As described above, Chavez's vehicle was stopped based on a tip provided by a confidential informant to Jackson County Sheriff's Deputy Caleb Carter. Chavez also made a statement to Deputy Carter subsequent to his arrest. Mitchell later learned that Carter's employment with the Sheriff's Department had been terminated. Despite Deputy Carter's central role in the investigation of the underlying offense, and despite his discovery obligations, Mitchell made no effort to investigate the reasons for Carter's discharge, and (at least in his statements prior to the arbitration hearing) admitted that he had not provided any information to Chavez's counsel concerning Carter's discharge.

          At Chavez's trial, the court refused to submit to the jury the charge of attempted trafficking in the first degree, but instead submitted the lesser charges of possession of a controlled substance with intent to distribute, and simple possession. Chavez was acquitted by the jury of all charges.

         Following the Chavez trial, management in the Prosecuting Attorney's Office conducted an investigation of Mitchell's conduct in the case. As a result of this investigation, Mitchell was provided with a Notice ...


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