Mertzlufft v. Civil Service Commission

85 S.W.3d 63, 18 I.E.R. Cas. (BNA) 1870, 2002 Mo. App. LEXIS 1538, 2002 WL 1541081
CourtMissouri Court of Appeals
DecidedJuly 16, 2002
DocketNo. ED 80060
StatusPublished
Cited by9 cases

This text of 85 S.W.3d 63 (Mertzlufft v. Civil Service Commission) 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
Mertzlufft v. Civil Service Commission, 85 S.W.3d 63, 18 I.E.R. Cas. (BNA) 1870, 2002 Mo. App. LEXIS 1538, 2002 WL 1541081 (Mo. Ct. App. 2002).

Opinion

PER CURIAM.

Charles Mertzlufft (Employee) appeals the circuit court’s judgment which affirmed the decision of the Civil Service Commission of the City of St. Louis (Commission) and The City of St. Louis, Missouri upholding the dismissal of Employee for violation of a residency requirement for City of St. Louis (City) employees. We reverse and remand.

City employed Employee as a City firefighter from January 1978 until January 1996 when he was dismissed for residing outside City. Employee lived together with his wife and children in homes in City until about January 1994, when Employee moved into his mother’s home on Marwin-ette Avenue in City, and Employee’s wife and children moved into a home on Butler Hill Road in St. Louis County. In January 1994, Employee submitted to City’s fire department a written notice of his change of address to the Marwinette Avenue house.

Employee was subsequently charged with violating Article VIII, Section 2 of City’s Charter which in relevant part requires City employees to maintain a residence in City throughout their employment or “failing or ceasing so to reside, [to] forfeit their ... employment.” In December 1995, Employee appeared before a disciplinary board or review board (Board) to respond to questions and present documentation regarding his residency. The Board found Employee innocent of the charge. In January 1996, the Fire Chief, to whom the Board made its recommendation, conducted a pre-termination review hearing with Employee, and then terminated Employee’s employment for violating the City Charter’s residency requirement.

Employee appealed his dismissal to Commission. Employee asserted he lived with his mother at the Marwinette Avenue address in City, and not with his wife and children at the home on Butler Hill Road in St. Louis County. To show this, Employee submitted: personal property tax receipts mailed to Employee at his Mar-winette Avenue address which reflect that Employee paid City personal property taxes in 1994 and 1995, and a letter and records from the telephone company revealing Employee had and paid for a telephone at the Marwinette Avenue address during the relevant time period. Additionally, Employee testified he told the Fire Chief that he “moved back with [his] mom”; and he had a driver’s license showing the Marwinette address; and Employee presented the testimony of two witnesses who rented apartments from him and made rental payments to him in person at the Marwinette Avenue address during 1994 and 1995, the period at issue in this case.

After a hearing before two different hearing officers, Commission issued a decision upholding the dismissal. The circuit court subsequently remanded the matter to Commission for further findings of fact and conclusions of law on all contested issues.

Without conducting additional hearings, Commission issued another decision upholding Employee’s dismissal upon concluding Employee lived in St. Louis County with his wife and children rather than in St. Louis City with his mother. Specifically, Commission found that Employee was dismissed for good cause as set forth in Article VIII, Section 2 of City’s Charter [65]*65and in Department of Personnel Administrative Regulation (Regulation) #117(II)(B)(l)a).1

In reaching its decision, Commission relied on the fact Employee had “[t]he majority of [his] personal possessions, including his recreational items, ... in [his] residence in St. Louis County”; Employee had “spent the majority of his time off duty at [his] residence in St. Louis County”; Employee had “signed an insurance document under penalty of perjury that listed his residence in St. Louis County”; and, after receiving notice his residency was being investigated, Employee had “informed his appointing authority, the Fire Chief, that he was back in the City at his mom’s house [which] implies [Employee] was violating the residency requirement.”2 Commission further found the testimony of Employee’s spouse regarding Employee’s “alleged City residency ... was not credible and was unworthy of belief”; and Employee’s testimony that he lived within City was not credible because a lease he presented to establish his City residency “was signed and dated prior to the revision date on” the lease and rent he “allegedly paid for the City residence was deposited into an account held in” his name. Additionally, Commission concluded Employee did not offer credible evidence establishing “a valid City residence” because his “submission of various bills, statements and other exhibits does not offset the substantial and competent proof that [he] violated the City’s residency requirement.”

The circuit court affirmed Commission’s decision. This appeal followed the circuit court’s entry of judgment.

In a case such as this one, we review Commission’s findings and conclusions rather than the judgment of the circuit court. Sims v. City of Berkeley, 2002 Mo.App. LEXIS 524, at *3, — S.W.3d -, -, 2002 WL 416888 (Mo.App.E.D. Mar. 19, 2002) (No. ED79849). Therefore, we will not discuss Employee’s points to the extent they challenge any action by the circuit court.

We are limited to deciding whether Commission’s decision violates constitutional provisions; exceeds Commission’s statutory authority or jurisdiction; is not supported by competent and substantial [66]*66evidence on the record as a whole; is unauthorized by law; is based on unlawful procedure or an unfair trial; is arbitrary, capricious or unreasonable; or involves an abuse of discretion. Section 536.140.2 RSMo 2000; Perry v. City of St. Louis Civil Serv. Comm’n, 924 S.W.2d 861, 863-64 (Mo.App. E.D.1996).

In his first point, Employee argues Commission erred in upholding his dismissal, and Commission’s findings were not supported by competent and substantial evidence on the record as a whole; were arbitrary, capricious, and unreasonable; and constituted an abuse of discretion in that City did not bear its burden of proof to establish Employee resided outside City because Employee presented undisputed documentary and testimonial evidence of his City residence.

An administrative decision based on substantial evidence and reached by applying the correct law to the facts is not arbitrary and capricious or an abuse of discretion. Abeln v. State Tax Comm’n of Missouri, 793 S.W.2d 490, 491 (Mo.App. E.D.1990). Therefore, we must decide whether there is substantial evidence to support Commission’s decision.

In order for evidence to be deemed substantial, the evidence must “support[ ] [Commission’s] discretionary determination.” Perry, 924 S.W.2d at 864 (internal quotation marks omitted) (quoting Becker v. Missouri, Dep’t of Corrections and Human Servs., 780 S.W.2d 72, 76 (Mo.App. E.D.1989)). “Substantial evidence is ... competent evidence, which, if believed, would have probative force upon the issues.” Ford Leasing Dev. Co. v. City of Ellisville, 718 S.W.2d 228, 233 (Mo.App. E.D.1986) (internal quotation marks omitted) (quoting Citizens For Rural Preservation, Inc. v. Robinett,

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Bluebook (online)
85 S.W.3d 63, 18 I.E.R. Cas. (BNA) 1870, 2002 Mo. App. LEXIS 1538, 2002 WL 1541081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mertzlufft-v-civil-service-commission-moctapp-2002.