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.
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
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:
Morton appealed the dismissal to the AHC. Morton testified at the hearing. He did not dispute any of the factual assertions contained in the dismissal letter, and his description of the events of the night in question were largely consistent with the letter. Morton added that he had been depressed and drinking all day on the date of the incident, that he was suicidal, and that he was not having "clear thoughts." Morton also testified that, following the incident, he received 21 days of in-patient alcohol treatment, attended "AA meetings," and received psychological counseling every two weeks.
Following the hearing, the AHC found that there was not cause for the dismissal. While the AHC found that Morton had violated the policies referenced in the termination letter, it reasoned that, at the time of the incident, Morton "was both intoxicated and suffering from depression" and was not "having clear thoughts." Thus, Morton had not "willfully," violated the policies, as required for dismissal under 1 C.S.R. § 20-3.070(2)(L),
McSwain appealed to the Circuit Court of Cole County. Following a hearing, the court overturned the AHC, holding that its decision was "arbitrary, capricious and unreasonable; unsupported by the competent and substantial evidence on the whole record; involved an abuse of discretion; and misapplied the law to the facts of the case."
Morton timely appealed. McSwain, as the party aggrieved by the AHC's decision, filed the appellant's brief and reply brief. Rule 84.05(e).
"On an appeal from the trial court's review of an AHC decision, we review the decision of the AHC, not the judgment of the trial court." Dep't of Soc. Servs. v. Peace of Mind Adult Day Care Ctr., 377 S.W.3d 631, 637 (Mo.App.W.D. 2012). "`The AHC's decision will be upheld unless it is not supported by competent and substantial evidence upon the whole record; it is arbitrary, capricious, or unreasonable; it is an abuse of discretion;
McSwain raises three points on appeal. In his first point, McSwain argues that the AHC erred in finding that the Division lacked cause to dismiss Morton because he did not willfully violate state regulations and Department policies. In his second point, McSwain argues that the AHC erred in overruling Morton's dismissal because there was competent and substantial evidence that the dismissal was for the good of the service. In point three, McSwain argues that, even if Morton did not act willfully, other merit system regulations provide grounds for the dismissal without requiring a finding of willfulness. McSwain's second and third points require that we reverse the AHC; thus we do not reach his first point.
"An appointing authority may dismiss for cause any employee in his division occupying a position subject hereto when he considers that such action is required in the interests of efficient administration and that the good of the service will be served thereby." § 36.380.
Thus, we begin our analysis with McSwain's third point, addressing whether he had cause to dismiss Morton. We then turn to his second point, arguing that the dismissal was for the good of the service.
"`For cause' means legal cause." Mo. Veterans Home v. Brown, 374 S.W.3d 359, 365 (Mo.App.W.D.2012) (internal citations and quotations omitted). "It `must be one which specially relates to and affects the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public.'" Id. (quoting Prenger v. Moody, 845 S.W.2d 68, 77 (Mo. App.W.D.1992)).
The AHC believed that "in order to decide this case in McSwain's favor, we must find that Morton acted willfully." (Emphasis added.) Presumably, the AHC believed that 1 C.S.R. § 20-3.070(2)(L),
McSwain argues that cause exists for the dismissal under 1 C.S.R. § 20-3.070(2)(H),
Morton's conduct plainly falls within the scope of this provision. Probation and Parole officers, as Morton testified, have the
Morton's conduct satisfied the first part of 1 C.S.R. § 20-3.070(2)(H) in that he "exhibited behavior which adversely affects the employee's job performance, the employing agency, or both." Morton himself admitted that the failure to follow the law could harm his credibility with the offenders he has been charged to supervise. He also testified that his credibility is important in his dealings with the courts and law enforcement. It is self-evident that an incident such as this will cause others to question Morton's judgment, hampering him in these interactions. Black v. Lombardi, 970 S.W.2d 378, 381 (Mo.App.E.D.1998) (Department of Corrections employees are "in a very sensitive position," and conduct leading to criminal charges "could affect [an employee's] ability to gain and hold the confidence of staff and" offenders, even when the charges are subsequently dropped). Moreover, the head of the Division has indicated that he does not trust Morton to do his job, and a number of fellow employees have come forward with concerns for the safety of other Probation and Parole officers should Morton return. These concerns would hamper Morton's ability to continue performing his job. See Snider v. Mo. Highways and Transp. Comm'n, 356 S.W.3d 320, 325 (Mo.App.W.D.2011) (Employee's misconduct may cause agency to "ha[ve] concerns regarding how ... [employee's] behavior could impact his ability to work as a team with other employees ... [and] about other employees' ability to successfully work as a team with [employee] in light of his behavior.").
Morton is correct that "due process requires that, before the employee can be deprived of this property interest, the employee must receive adequate notice and an opportunity for a hearing." Lombardi v. Dunlap, 103 S.W.3d 786, 790 (Mo. App.W.D.2003). "To that end, Section 36.380 provides in pertinent part, `[n]o 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[.]'" Johnson v. Clements, 344 S.W.3d 253, 257 (Mo.App.E.D.2011). The letter must contain "adequate information about the reasons for the dismissal to enable the employee to prepare a defense." Dunlap, 103 S.W.3d at 790.
Here, the letter specifically notified Morton of the precise incident for which he was being terminated:
The letter then concluded that Morton's "actions were inappropriate, unprofessional and in violation of" three specific Department of Corrections policies, which the letter spelled out verbatim. In short, "it is clear that [Morton] knew the specifics of the misconduct charged ... and there was no indication that he was hampered in the presentation of his defense by any misunderstanding of the charges he was facing." Prenger, 845 S.W.2d at 77. There is no duty upon the employer to cite a specific provision of the code of state regulations in the dismissal notice. Id. (rejecting a claim that the letter of dismissal had to use the language of the rule and finding it sufficient so long as the letter adequately sets forth the conduct with which the employee is charged); see also Dunlap, 103 S.W.3d at 790 ("While a suspension or dismissal letter need not cite the specific policy or rule the employee violated, if the specific policy or rule is not cited, the letter must explain the policy or rule and indicate how the employee's conduct was in violation thereof").
The dismissal letter also plainly put Morton on notice that he was being disciplined
The notice of dismissal simply "must be sufficiently specific as to the time and nature of the incident at issue so that the employee has no uncertainty as to the acts related to [his] discharge." Dunlap, 103 S.W.3d at 790. Again, the notice explicitly stated the specific conduct at issue and quoted verbatim the specific Department policies that were violated. The notice was more than sufficient. Johnson, 344 S.W.3d at 258 (When the "dismissal letter cited specific DOC policies [that employee] violated and was sufficiently specific as to the time and nature of the incident at issue so that [employee] could prepare a defense[, employee] was not deprived of adequate notice[.]").
Because Morton engaged in conduct that adversely affected both his employer and his ability to continue to perform his job functions, McSwain had cause to dismiss Morton.
Having determined that there was cause for the dismissal, "[t]he statute then provides a second tier of inquiry for the appointing authority, stating that before deciding to dismiss the merit employee for cause, the appointing authorities must consider whether dismissal is in the interests of efficient administration and whether `the good of the service will be served thereby.'" Bowen, 46 S.W.3d at 10 (quoting § 36.380). "Although not defined by the statutes, the standard `for the good of the service' ... requires a decision by the appointing authority that the employee's conduct is of such a serious nature that dismissal is required rather than some other form of discipline." Dunlap, 103 S.W.3d at 791.
"Ultimately, the question of whether termination was for the good of the service is a matter for the agency's determination." Snider, 356 S.W.3d at 324. "The authority of the Board to approve or disapprove a dismissal ... does not extend discretion ... to override the judgment of the appointing authority that dismissal of an employee is for the good of the service." Cheeney, 926 S.W.2d at 941, "[a]nd `it is not our role to substitute our judgment for that of the [agency] as to what is for the good of the service.'" Faenger v. Bach, 442 S.W.3d 180, 187 (Mo. App.W.D.2014) (quoting Snider, 356 S.W.3d at 324). "This is not to say, however, that once an appointing authority determines that dismissal is for the good of the service, that determination is thereafter unassailable." Id. But this Court will review the decision only "to determine whether the agency's decision exceeded agency authority; was not based upon substantial and competent evidence on the record as a whole; was unreasonable, arbitrary or capricious; involved an abuse of
Thus, while "the terms `cause' and `for the good of the service' are not synonymous," 1 C.S.R. § 20-3.070(5)(C)(2), "`it is not surprising that it would often be for the good of the service to terminate an employee who had given cause to do so.'" Faenger v. Wofford, 442 S.W.3d 190, 196 (Mo.App.W.D.2014) (quoting Bowen, 46 S.W.3d at 10). Accordingly, once an agency has cause for dismissal, only in rare cases will the dismissal not also be for the good of the service. See Atwell v. Fitzsimmons, No. WD 77100, ___ S.W.3d ___, ___, 2014 WL 5338532, *6 (Mo.App.W.D. Oct. 21, 2014) ("Inherent in [1 C.S.R. § 20-3.070(2), setting forth cause for dismissal] is the predetermination ... that such conduct, when serious enough, requires termination in the interests of efficient administration."
In Bach, this Court affirmed the AHC's decision that, though an employer had cause to dismiss an employee, that the dismissal was not for the good of the service. 442 S.W.3d at 189. There, an employee was dismissed for her failure to show up for work without calling, in violation of policy. Id. at 184. Having proved cause for dismissal by virtue of the violation of policy, the employer's only evidence that the dismissal was for the good of the service was testimony that the employer had a "zero-tolerance policy for no-call, no-show employees." Id. at 188. But the AHC found credible evidence that other no-call, no-shows did not result in termination. Id. at 189. Thus, dismissal based on a non-existent "zero-tolerance policy" was arbitrary and capricious. Id.
Here, there is no dispute that the reasons testified to by McSwain are the reasons that McSwain believed dismissal was for the good of the service. The AHC determined that McSwain had considered whether other forms of discipline would be sufficient and, at the hearing, Morton's counsel referred to McSwain's testimony as "honest and forthright." McSwain testified that the conduct in question required dismissal because it reflected poorly upon the Division with the public, that it would compromise Morton's ability to work with offenders, and that it would have a negative effect upon other employees at the district office. See Snider, 356 S.W.3d at 325 ("concerns about other employees' ability to successfully work as a team with" the offending employee is a proper consideration in determination that dismissal was not for the good of the service).
While Morton cross-examined McSwain regarding other incidents in which employees had allegedly been convicted of crimes and not been terminated, McSwain did not testify that he dismissed Morton because he had committed "crime," or that all employees who committed crimes would be treated identically. McSwain testified that he had taken the conduct and all other circumstances, including Morton's efforts toward rehabilitation, under consideration and determined that, under the circumstances, the conduct was egregious enough to mandate dismissal. See id. at 325 (discipline more severe than that imposed upon other employees who had violated policy was for the good of the service). This determination is within the discretion of the agency, and was not arbitrary or capricious. See Luttrell v. Agniel, 343 S.W.3d 13,
Because the Division had cause to dismiss Morton, and because there was substantial and competent evidence that the dismissal was for the good of the service, the circuit court's judgment overturning the AHC's determination is affirmed.
Cynthia L. Martin and Gary D. Witt, Judges, concur.
