Goodman v. McNally

558 S.W.2d 310, 1977 Mo. App. LEXIS 2342
CourtMissouri Court of Appeals
DecidedSeptember 27, 1977
DocketNo. 37275
StatusPublished

This text of 558 S.W.2d 310 (Goodman v. McNally) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Goodman v. McNally, 558 S.W.2d 310, 1977 Mo. App. LEXIS 2342 (Mo. Ct. App. 1977).

Opinion

ALDEN A. STOCKARD, Special Judge.

Robert Goodman, Donal Wall and Thomas Prokawski were police officers of St. Louis County, and on September 13, 1973, each was disciplined by the Superintendent of Police for violating certain rules contained in the Department’s Code of Discipline and Ethics. Lieutenant Goodman was reduced to a patrolman and Patrolmen Wall and Prokawski were dismissed from the force. Each officer appealed to the Board of Police Commissioners, and after a lengthy adversary hearing the Board sustained the action of the Superintendent as to each officer. The three officers then filed a petition for judicial review, and after a hearing the court entered judgment in favor of each officer and ordered each to be reinstated to his former position with back pay from the date of their discipline. The Board has appealed. We affirm in part and reverse in part with directions.

The transcript of the hearing before the Board is quite lengthy. There are ten volumes of testimony, copies of interviews and exhibits totaling more than seventy-five in number, twenty-six cassette tape recordings, and more than twenty reports and other exhibits. A substantial portion of this pertains to charges which the Board found not to be substantiated by the evidence.1

[313]*313In their petition for judicial review filed pursuant to Rule 100 respondents alleged that the Board’s findings as to each were “not supported by competent and substantial evidence upon the whole record” and that the action of the Board “is arbitrary and capricious and constitutes an abuse of discretion.” The court held that the “findings of the Board of Police Commissioners with respect to each [respondent] are unsupported by competent and substantial evidence upon the whole record and are contrary to the overwhelming weight of the evidence.”

The standard for review as to the sufficiency of the evidence in this case is prescribed by Rule 100.07 where it is provided that the judicial inquiry “may extend to a determination of whether the action of the agency * ⅜ * [i]s unsupported by competent and substantial evidence upon the whole record; * * *.” The reviewing court is not to weigh the evidence for itself, but rather is required to view the evidence in the light most favorable to the decision of the tribunal, giving to the administrative decision the benefit of all reasonable inferences to be derived from the evidence produced. State Board of Registration for the Healing Arts v. Finch, 514 S.W.2d 608, 616 (Mo.App.1974); Friedman v. Miller, 525 S.W.2d 770 (Mo.App.1975).

The three officers were members of a Mobile Reserve Unit, created in February 1973, consisting of six patrolmen and Lieutenant Goodman. It is the activities of the officers as members of this unit that gave rise to the charges against them. Respondents point out that there were charges filed against each officer which were found by the Board not to be substantiated by the evidence, and it is argued that the knowledge of these unsupported charges are important in order to have a clear view of the total circumstances resulting in the disciplinary action taken. However, the Board’s order as to each officer was based on findings that certain charges as to each were supported by evidence, and it is the findings as to those charges that this court is con[314]*314cerned. We shall review the evidence as to each officer.

Officer Robert Goodman

The Copy Machine Incident

Goodman was made the head of the Mobile Reserve Unit on February 27, 1973, and among those in the unit were officers Prokawski and Wall. He was directly responsible for the operation of the unit and its activities. On May 18, 1973 he, with Patrolmen Prokawski and Burke, conducted a search of the residence of Freddie Darrell Swan and discovered three copy machines. At that time it was determined that one of the copy machines had been stolen in Jefferson County, and Goodman directed that it and the other two be held as evidence. The machines were placed in the evidence locker of the Second District Police Station where they remained until after the imposition of disciplinary action in this case. An application was made for a warrant charging Swan with the receipt of stolen property which was taken under advisement by the prosecuting attorney. No action on this application was taken until December 7, 1973, which was approximately three months after the disciplinary action against Goodman.

The Board found that Goodman took no steps to return to the “true owner” the copy machine seized from Swan. This refers to the machine which Goodman determined, prior to seizure, to have been stolen. The Board also found that Goodman failed to “return to Swan the copy machines that were rightfully his.” This refers to the two other machines.

As to all three machines, we find no written rule, regulation or order in the record which imposed a duty on Goodman to see to it that the machines were returned to the owners. In appellant’s brief it is stated that “It was Goodman’s responsibility ultimately to see that the- copy machines were returned to the rightful owners or to the person from whom they had been taken if it could not be established they were stolen.” In this case the disciplinary action was taken against Goodman by the Superintendent in a little less than four months after the copy machines were seized. We find nothing in the record to indicate that the duty to “ultimately” return the machines required that they be returned in less than that time. Reference is made by appellants to the testimony of Colonel G. H. Kleink-necht, Superintendent of Police of St. Louis County who had held that office for one year at the time of the hearing before the Board. He testified only that it is the “responsibility of the investigating officer .to handle all aspects of the investigation and complaint,” and that Goodman should have arranged to return the machines.2 He made no reference to any directive, regulation, rule or order to that effect. But more important, assuming there was a department policy or understanding as to this matter, there is no explanation of why Goodman should have arranged to return the one machine, known to have been stolen and which was being held as evidence, during the time that an application for a warrant was still under consideration by the prosecuting attorney. Also, there is noth[315]*315ing to indicate that it was not reasonable for Goodman to assume the other two machines were potential evidence. There is no showing that under the circumstances four months was an unreasonable time for him to have made the “ultimate” disposition referred to in appellants’ brief. The only possible basis for a determination of what was a reasonable time is that Goodman’s superiors did not return those two machines to the owners for more than a year.

It thus appears from the undisputed evidence that Goodman was disciplined by the Superintendent, and that action has been sustained by the Board, for the failure to return a stolen copy machine to an owner, then unknown to him and for which no request for its return had been made, and which was being held as evidence in a case which was still under consideration by the prosecuting attorney, and when his conduct violated no express rule, regulation or order.

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Related

State Board of Registration Ex Rel. Healing Arts v. Finch
514 S.W.2d 608 (Missouri Court of Appeals, 1974)
Friedman v. Miller
525 S.W.2d 770 (Missouri Court of Appeals, 1975)

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Bluebook (online)
558 S.W.2d 310, 1977 Mo. App. LEXIS 2342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goodman-v-mcnally-moctapp-1977.