Kell v. Sayad

670 S.W.2d 82, 1984 Mo. App. LEXIS 3644
CourtMissouri Court of Appeals
DecidedMarch 27, 1984
DocketNo. 46551
StatusPublished
Cited by2 cases

This text of 670 S.W.2d 82 (Kell v. Sayad) 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
Kell v. Sayad, 670 S.W.2d 82, 1984 Mo. App. LEXIS 3644 (Mo. Ct. App. 1984).

Opinion

KAROHL, Presiding Judge.

Plaintiff-appellant Chester Kell, a police officer of the city of St. Louis, brought an action under the Administrative Procedure and Review Act, Chapter 536 RSMo 1978, against respondent Board of Police Commissioners of the city of St. Louis to review the Board’s order terminating appellant’s employment for violation of each of three charges. This is an appeal from the trial court’s judgment upholding the Board’s order of dismissal.

Appellant’s dismissal followed the Board’s finding he had violated § 7.010(e), § 7.010(q), and § 7.010(w) of Rule 7 of the Police Manual. The Rules were issued pursuant to the provisions of § 84.170.2 RSMo 1978.

The Police Manual provides:
7.010 Standards of Conduct—
Every member of the department shall, at all times, maintain reasonable standards of courtesy in their relations with the public and with other members of the department and shall conduct themselves in such a manner that no discredit will be brought upon the department in general or themselves in particular.
Acts contrary to good conduct shall include, but not be limited to, the following:
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(c) Any conduct unbecoming to a member of the department.
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(q) Reporting sick or injured without notifying one’s commanding officer or acting commanding officer prior to the appointed time for him to report for duty, or leaving his residence or place of [84]*84confinement while on the sick list except to obtain medical treatment or attention; or failing to contact a Department or private physician within twenty-four hours after reporting sick.
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(w) Failing to devote one’s time and attention to the business of the department or following any other business or calling, without first obtaining written permission from the Chief of Police to engage in secondary employment. The Chief of Police shall promulgate a procedure to operate and control secondary employment.

Appellant was charged under § 7.010(c) with conduct unbecoming a member of the department in that on two separate days, December 17, 1980 and December 26, 1980 he cut and removed trees from property located in Monroe County, Illinois without the owner’s consent. He was charged with violating § 7.010(w) in that on both dates he was involved in a timber cutting and removal operation which constituted “other business or calling” without first obtaining permission from the Chief of Police to engage in secondary employment. Finally, he was charged with violating § 7.010(q) by leaving his residence or place of confinement while on the sick list to engage in the timber cutting and clearing operation in Monroe County, Illinois on December 12, 1980 although he did not report back to duty until December 14, 1980.

The St. Louis Police Department Internal Affairs Division assigned Sergeant Ray Reynolds to investigate the complaint against appellant. Sergeant Reynolds testified that he directed appellant to prepare a written narrative of the circumstances and events surrounding the investigation of appellant’s activities in December, 1980. He had previously advised appellant that he had a right to contact an attorney prior to preparing his report, but that his failure to prepare the report would subject him to discipline on that account. The report, department’s Exhibit 4, was admitted over appellant’s objection that it violated his constitutional rights, that it was obtained under duress and coercion in violation of state and federal constitutional due process and equal protection guarantees, and that its admission would render § 84.120 (Right To A Hearing) and Chapter 536 (Administrative Review) meaningless. Appellant prepared the report on January 10, 1981.

On appeal appellant contends that the court erred in affirming the Board’s findings because those findings were based in part on the Board's Exhibit 4, appellant’s statement given to the Internal Affairs Division; that without the statement there was insufficient evidence to support the three charges; and, the charges were themselves so vague, indefinite and uncertain as to not adequately, properly and specifically advise appellant of those acts and conduct which were prohibited or required by the St. Louis Metropolitan Police Department, and thus fatally deficient on due process constitutional grounds.

By statute appellant was subject to removal only for cause after a hearing. Section 84.120 RSMo 1978. The law requires that the hearing be conducted with due regard for appellant’s constitutional due process rights. Tonkin v. Jackson County Merit System Commission, 599 S.W.2d 25, 32-33 (Mo.App.1980). The charges must fairly apprise appellant of the acts constituting the alleged offense, Milani v. Miller, 515 S.W.2d 412, 416 (Mo.1974), and the Board must support its charges by competent and substantial evidence. Hanebrink v. Parker, 506 S.W.2d 455, 457 (Mo.App.1974). It follows that if the charges are supportable only on the basis of a coerced statement by appellant and if the statement’s use is prohibited by due process guarantees then the Board’s decision, affirmed by the trial court, should be reversed.

We look first to the adequacy of the charges. Appellant attacks the statement of charges on two fronts. He contends that the specified violations under Regulation 7 which constitute the charges are so vague and indefinite as not to provide any reasonable standard of enforcement and that they do not properly and adequately [85]*85advise appellant of what acts are prohibited or required of him. Hence, he argues, they violate the state and federal constitutional guarantees of due process.

With respect to the three charges, appellant contends that “conduct unbecoming to a member of the department,” Rule 7.010(c), is unconstitutionally vague for failing to indicate whether the actions must be intentional, whether the police officer must actually be aware that his conduct is unbecoming or whether it is merely for the Board to determine that the act or acts were committed, without reference to intention or knowledge or prudence, and that they were “unbecoming.”

Appellant contends that the language of Rule 7.010(w), “Following any business or calling without first obtaining permission to engage in secondary employment” is impermissibly vague for failure to define “employment.” First, because it establishes no standards, and second, in that if it were interpreted to mean “any conceivable activity from which income may be received” it would be over-broad as unrelated to job performance and outside the stated purpose of Rule 7, to prohibit “acts contrary to good conduct.”

Appellant contends that Rule 7.010(q), prohibiting “leaving his residence ...

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Related

Thomas v. Mahan
886 S.W.2d 199 (Missouri Court of Appeals, 1994)
Jackson v. Sayad
741 S.W.2d 847 (Missouri Court of Appeals, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
670 S.W.2d 82, 1984 Mo. App. LEXIS 3644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kell-v-sayad-moctapp-1984.