State ex rel. Lukas v. City of Sikeston

668 S.W.2d 127, 117 L.R.R.M. (BNA) 2080, 1984 Mo. App. LEXIS 3584
CourtMissouri Court of Appeals
DecidedMarch 1, 1984
DocketNo. 13058
StatusPublished
Cited by5 cases

This text of 668 S.W.2d 127 (State ex rel. Lukas v. City of Sikeston) 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
State ex rel. Lukas v. City of Sikeston, 668 S.W.2d 127, 117 L.R.R.M. (BNA) 2080, 1984 Mo. App. LEXIS 3584 (Mo. Ct. App. 1984).

Opinion

CROW, Presiding Judge.

Appellant (“Lukas”) asserts the City of Sikeston unlawfully discharged him from employment, in that his dismissal was not preceded by a public hearing before the personnel board. The trial court granted Lukas no relief. We affirm.

Sikeston, a city of the third class, adopted the city manager form of government in 1959.1

In 1979, the Sikeston City Council, by ordinance, created a department of public safety, and charged it with the duties and responsibilities of the police and fire departments.2 The distinction between police officers and firemen was abolished, and their duties and responsibilities were combined in the persons of public safety officers.3 The office of director of public safety (“director”) was created. The director was made chief of police and chief of the fire department, and was assigned the duties of both positions.4 The director is selected and appointed by, and serves at the pleasure of, the city manager.5

Lukas, who became a Sikeston employee in 1978, was a public safety officer at the time of the events that spawned this litigation. He was assigned to field operations in the public division of the department of public safety, and was primarily involved in law enforcement duties, while at the same time performing some duties ordinarily performed by firemen.

By letter of May 3, 1982, the director notified Lukas that a “Board of Inquiry” would be held four days hence to examine allegations that Lukas had violated certain departmental rules and regulations. The letter included this paragraph:

The Inquiry Board is a recommending body and conducts closed administrative hearings as an extension of the City of Sikeston’s management rights and as such is not a court of law. Therefore, legal representation will not be allowed to attend the hearings.

The letter commanded Lukas to be present, and warned that failure to answer the allegations could result in his dismissal.

The Board met as scheduled, Lukas attending. The Board found Lukas guilty of [129]*129three violations and recommended that he be dismissed immediately. The director concurred.

The city manager reviewed the case and agreed with the recommendation of the Board and the director. By letter of May 10, 1982, the city manager notified Lukas that he was dismissed from the department of public safety and from employment by Sikeston, effective immediately.

Two days later, Lukas, through counsel, formally requested a “proper hearing as required by Missouri law,” to be conducted “pursuant to all rules and regulations and be governed by the Administrative Procedure Act.” Lukas demanded that “formal charges and specifications be filed,” that he be accorded “pretrial or prehearing discovery rights,” and that he be represented by counsel. Sikeston’s city attorney responded by advising Lukas’ attorney that all requests and demands were denied. Lu-kas’ dismissal remained in effect.

Thereafter, Lukas commenced this action seeking a writ of mandamus to compel Sikeston to reinstate him, with back pay, and “to hold a public hearing conducted in compliance with Chapter 536, RSMo,” in the event his superiors wished to suspend, demote or discharge him.

The trial court issued a preliminary order in mandamus, but ultimately, after an evi-dentiary hearing, denied relief. This appeal followed.

Lukas bases his case on § 85.541,6 which authorizes any city of the third class to adopt—by ordinance—a merit system police department. Any ordinance adopting that type department must include certain provisions regarding appointment, promotion, suspension, demotion or discharge of its members. § 85.541.2. Among other requirements, a personnel board must be created, and any officer suspended, demoted or discharged for misbehavior or inefficiency is, upon application, entitled to a public hearing before the personnel board. § 85.541.2(5).

Lukas asserts that Sikeston, in establishing its department of public safety, adopted a merit system police department as a matter of law; consequently, he was entitled to a “public hearing before the personnel board” before he could be lawfully discharged.

In support of this theory, Lukas points to evidence that Sikeston’s public safety officers carry the responsibilities and exercise the authority of police officers, including the powers of arrest, search and seizure and “police protective powers.” Persons seeking appointment as a public safety officer must take written examinations, undergo a physical test, and be interviewed by a board. Promotion is based on further examinations, performance record and tenure. These characteristics, says Lukas, render Sikeston’s department of public safety a de facto merit system police department.

Moreover, argues Lukas, Sikeston is required by law to have either a merit system police department or a police department headed by an elected marshal. Lukas bottoms this hypothesis on § 85.551.1, which provides that in cities of the third class that have not adopted a merit system police department, the marshal shall be the chief of police.7 Sikeston’s governmental structure does not include the office of marshal. Therefore, reasons Lukas, Sikeston must be deemed to have adopted a merit system police department by operation of law.

A study of the legislative history of § 85.551 has led us to conclude that it does not apply to Sikeston.

[130]*130Section 85.551, along with § 85.541 (the section authorizing merit system police departments) and two other sections, 85.561 and 85.571, appear in that part of chapter 85, RSMo 1978, designated “Provisions Applicable to Third Class Cities.” Chapter 85, captioned “City Police and Fire Departments, Generally,” also contains provisions applicable to first class cities and fourth class cities.

The four sections identified above, 85.-541-.571, were enacted in the same bill, H.B. 40, Laws 1955, p. 290.

Prior to H.B. 40, cities of the third class, unless they opted for one of the two permissible alternative forms of government described infra, were governed pursuant to chapter 77, RSMo 1949. The governmental structure provided by chapter 77 included an elected council, an elected may- or, and sundry other elected officers, including a marshal. § 77.370, RSMo 1949. Before H.B. 40, there was no statute authorizing a city of the third class with a chapter 77 form of government to establish a merit system police department. The marshal was the chief of police (§ 85.540, RSMo 1949), and the police department could include an assistant marshal (§ 85.-550, RSMo 1949) and such number of regular policemen as the council deemed necessary (§ 85.560, RSMo 1949), to be appointed in the manner defined by ordinance. (§ 85.570, RSMo 1949).

However, at the time H.B. 40 was enacted, a city of the third class was not compelled to have a chapter 77 form of government. Such cities had the option under chapter 78, RSMo 1949, of adopting a commission form of government (§§ 78.-010-.420, RSMo 1949), or a city manager form of government (§§ 78.430-.640, RSMo 1949). There was no provision requiring establishment of a police department in third class cities adopting the commission form of government; instead, a department of public safety was to be established. § 78.060.1, RSMo 1949.

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Bluebook (online)
668 S.W.2d 127, 117 L.R.R.M. (BNA) 2080, 1984 Mo. App. LEXIS 3584, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-lukas-v-city-of-sikeston-moctapp-1984.