IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
ROB SANDERS, )
)
Respondent, )
) WD78460
v. )
) OPINION FILED:
) February 9, 2016
CITY OF COLUMBIA, MISSOURI, )
)
Appellant. )
Appeal from the Circuit Court of Cole County, Missouri
The Honorable Patricia S. Joyce, Judge
Before Division II: Mark D. Pfeiffer, Presiding Judge, and
Lisa White Hardwick and James Edward Welsh, Judges
The City Manager of the City of Columbia, Missouri (“City”), made a final determination
that Rob Sanders (“Sanders”) should be terminated from his employment as a police officer.
Sanders petitioned the Circuit Court of Cole County, Missouri (“circuit court”), to review the
City’s decision. The circuit court reversed the City’s decision and ordered Sanders’s
reinstatement. The City appeals.1 Because the circuit court did not have statutory authority to
consider review of this case as a contested case, we reverse the circuit court’s judgment and
1
Although the City filed this appeal as the party aggrieved by the circuit court’s judgment, Sanders filed
the appellant’s brief under Rule 84.05(e) because he was aggrieved by the City’s decision.
remand the case for judicial review of the matter as a noncontested case pursuant to
section 536.150.2
Factual and Procedural Background
Sanders was hired by the Columbia Police Department in 1993. In 2011, he was a K-9
officer assigned to the Patrol division. He was also a firearms and pursuit driving instructor for
the Department. He had received in-service training in defensive tactics.
On August 15, 2011, Columbia Police Officers Kasper and Sedgwick were dispatched to
211 Sanford Avenue to arrest Kenneth Baker on two outstanding felony warrants. Baker, who
was intoxicated, resisted and violently fought with the officers for about two minutes. Both
officers delivered numerous closed fist strikes to Baker with little effect. Officer Kasper called
for emergency assistance. In an effort to subdue Baker, Officer Sedgwick pepper sprayed Baker
in the face, but it seemed to have very little effect. The officers were eventually able to pull
Baker face down onto the floor and handcuff him. Some of this incident was broadcast over the
open microphone of one of the officers. Sanders heard the struggle over the open microphone
and responded to the call for emergency assistance.
Officer Crites was the first officer to arrive at the scene to assist the arresting officers.
Sanders arrived shortly thereafter. Officer Crites took custody of Baker and escorted him to the
patrol car. Baker was yelling and pulling away from Officer Crites. Before transporting Baker
to the police station, Officer Crites attempted to search him. Baker resisted the search, and
Officer Crites had to use force, including a wrist lock, to hold him down on the rear of the patrol
car so the search could be completed.
Officer Crites transported a belligerent Baker to the police station, followed by Sanders.
At the station, Sanders offered to speak to Baker to try to establish rapport. Sanders offered to
2
All statutory references are to the Revised Statutes of Missouri 2000, as updated.
2
help Baker wash the pepper spray from his face if he would behave and cooperate. Baker
agreed, and Sanders spent over four minutes washing Baker’s eyes and helping him blow his
nose until Baker told him that he was ready to go on with the booking procedure.
Because the arresting officers had not yet returned to the police station to start the
booking process, Sanders and Officer Crites took Baker to a holding cell. Sanders gave Baker a
paper towel so he could fan his face to dissipate the pepper spray. In the booking area, Sanders
and Officer Crites looked for decontamination wipes to give to Baker to alleviate the effects of
the pepper spray, but they could not find any.
Baker tried the sink in the holding cell, but the sink was not working and had not worked
for many years. Baker banged on the cell door, demanding that the officers turn on the water.
Sanders returned to the cell and instructed Baker that people were not allowed to beat on the
holding cell doors. Baker asked questions about the water, and Sanders told him that the water
did not work and that no water was accessible; Baker needed time and air and should fan himself
to reduce the effects of the pepper spray. Sanders advised him, “Sir, I’m sorry, there’s no water
in the holding cell.” Baker again demanded water. Sanders told him, “The only water in the
holding cell is that in the toilet.” Baker said he was not using that, and Sanders responded, “I
don’t blame you, I wouldn’t do it either.” Sanders warned Baker, “You cannot beat on the
holding cell door or you’ll be placed on the ring behind you on the floor; it’s very
uncomfortable.”
Baker again pounded on the cell door. Sanders, and Officers Crites and Hibler returned
to the cell; after a few seconds, Sanders opened the door and asked Baker to have a seat at the
back of the holding cell so that he could be placed on the ring. Baker’s response was, “Fuck
you.” Sanders responded, “Sir, is there anything that I can say or do to make you peacefully
3
have a seat at the back of the holding cell without using physical force against you?” Baker
responded with the same curse.
Sanders observed Baker coming forward in the cell. Because the cell door is not wide
enough to fit more than one officer through at a time, Sanders entered the cell first. Although
Sanders normally would use a leg sweep to take someone down in that situation, he determined
that he did not have enough room to use that technique. Sanders’s second option was to push
Baker over on his buttocks or back and then take him over to the holding cell ring and cuff him
to it. When Sanders pushed Baker, rather than stumbling backwards or going down on his
buttocks, Baker went several feet back into the rear wall of the cell and struck his head. The
other two officers entered the cell with Sanders, and the three of them cuffed Baker to the ring at
the back of the cell.
When the officers withdrew to the outside of the holding cell, Sanders noticed blood on
his arm. When the officers determined that it was Baker’s blood, they went back to the holding
cell to check on Baker. They found a one-inch cut on the back of Baker’s head and a drop of
blood on the holding cell floor. Baker never lost consciousness and threatened to kill Sanders.
When the officers exited the cell, they requested medical assistance for Baker. After about
twelve minutes, the paramedic arrived and determined that Baker should go to the hospital.
Baker was transported to the hospital by officers.
In response to seeing the video of this incident in the holding cell, Police Chief Burton’s
initial reaction was to fire Sanders, but Captain Bernhard counseled him to let the internal affairs
investigation run its course. Chief Burton relented and requested that the Internal Affairs Unit
commence an investigation to ascertain the facts and circumstances that culminated in Sanders’s
use of force against Baker. In the Columbia Police Department, any use of force resulting in a
4
serious physical injury or an injury for which a person is transported to a hospital must be
investigated by the Internal Affairs Unit.3 On August 23, 2011, Sanders was notified that the
Internal Affairs Unit would conduct a mandatory review of the force used against Baker and that
Sanders was the subject of the internal investigation. The following day, Sanders was notified
that Chief Burton requested that an amended notification of investigation be issued to Sanders
that contained an internal complaint/allegation of violating General Order 103.01, Code of
Conduct, Section 32, Duty to Use Reasonable Force. On August 26, 2011, the Internal Affairs
Unit issued a second amended notification of investigation to Sanders, advising him that City of
Columbia Chapter 19 (Personnel Policies, Procedures, Rules and Regulations), Section 225,
Guidelines for Corrective Action would be considered during the course of the investigation. On
August 31, 2011, the Internal Affairs Unit issued a third amended notification of investigation to
Sanders, informing him that Internal Affairs was directed by Chief Burton to include an
additional allegation of violating department policy regarding not providing appropriate medical
aid to the injured prisoner.
The Internal Affairs Unit interviewed Officers Kasper, Sedgwick, Crites, Hibler, and
Sanders; Sanders’s direct supervisor, Sgt. Houston; the Department’s use of force instructor; the
paramedic who treated Baker; all police reports regarding contact with Baker; Sanders’s training
records; and videos from the police station holding cell and booking room and from officers’
patrol cars. Baker refused to be interviewed. The thirty-nine-page Internal Affairs Unit’s Report
concluded with recommendations that the violations of the Department’s Code of Conduct
policy, Duty to Use Reasonable Force; the Department’s Use of Force Policy, Medical Attention;
and the City of Columbia’s Guidelines for Corrective Action be considered “Unfounded.” By
3
Under General Order 103.07, “The PSD/IA shall conduct internal investigations into all incidents during
which any person sustains serious physical injury, or an injury for which the person is transported to a hospital, due
directly to the actions of an employee.”
5
this finding, the Internal Affairs Unit explained that “the allegation of misconduct did not occur
even though the underlying events did.” The Internal Affairs Unit’s report was circulated to
Sanders’s chain of command so they could review the report and indicate whether they
concurred with the recommendations. The Chief of Police is not bound by the Internal Affairs
Unit’s disciplinary recommendations. Indeed, Chief Burton ignored the findings and
recommendations of the Internal Affairs Unit and terminated Sanders’s employment effective
September 21, 2011.4
Sanders appealed the Chief’s decision by initiating a grievance on September 30, 2011.
On October 14, 2011, Chief Burton denied Sanders’s grievance. Sanders appealed to the City’s
Director of Human Resources, which upheld the Chief’s decision. Upon completion of the
administrative appeal process mandated by section 19-238 of the Columbia, Missouri, Code of
Ordinances (“Code”), Sanders requested a hearing before the City’s Personnel Advisory Board
(“PAB”).
The PAB held an evidentiary hearing on November 15, 2013. The PAB recommended
by a four-to-two decision that Sanders should be terminated. On November 26, 2013, the
chairperson of the PAB reported the recommendations of the PAB to the City Manager,5
pursuant to section 19-239 of the Code.
4
Under Columbia Code of Ordinances (“Code”) section 19-228, “all department heads shall have the
authority and responsibility to administer all disciplinary actions including termination of services of an employee
under their supervision.”
5
Under section 19-239 of the Code:
After hearing and consideration of the evidence and within ten (10) working days after the
hearing, the board shall render its recommendations in writing to the city manager. As soon as
possible after the hearing, a certified written transcript of the hearing along with all exhibits
produced at the hearing shall be delivered to the city manager.
6
On December 26, 2013, the City Manager issued his twenty-four-page Findings of Fact,
Conclusions of Law, and Final Determination on Sanders’s grievance.6 The City Manager
determined that the force used by Sanders was unreasonable, unnecessary, and retaliatory; and
that Sanders’s treatment of Baker was abusive and improper. The City Manager determined that
Sanders should not be terminated for failing to provide medical attention to a prisoner in his
custody, but that termination on each of the other two charges was warranted.
Sanders petitioned the circuit court for judicial review of the City Manager’s decision.
The circuit court, reviewing the petition as a contested case, issued its judgment reversing the
City Manager’s decision, finding that the decision was unsupported by competent and substantial
evidence; was unauthorized by law; was arbitrary, capricious, and unreasonable; and was an
abuse of discretion.
The City appealed.
Standard of Review
The resolution of this appeal rests on whether the circuit court was statutorily authorized
to treat the City’s final decision, by and through its City Manager, as a contested case as defined
by the Missouri Administrative Procedure Act (“MAPA”). See 450 N. Lindbergh Legal Fund,
LLC v. City of Creve Coeur, No. ED102404, 2015 WL 3759314, at *1-2 (Mo. App. E.D.
June 16, 2015). We review this question of law de novo. McCoy v. Caldwell Cty., 145 S.W.3d
427, 428 (Mo. banc 2004); Kunzie v. City of Olivette, 184 S.W.3d 570, 572 (Mo. banc 2006).
See also City of Valley Park v. Armstrong, 273 S.W.3d 504, 506 (Mo. banc 2009) (“The
classification of a case as ‘contested’ or ‘noncontested’ is determined as a matter of law.”).
6
Under section 19-239 of the Code, “The city manager shall review the transcript and exhibits and, within
thirty (30) days of receiving the transcript, render a decision supported by findings of fact and conclusions of law
which shall be final, binding and not subject to further administrative appeal.”
7
Analysis
Under MAPA, any person who has exhausted all administrative remedies provided by
law and who is aggrieved by a final decision in a “contested case” is entitled to judicial review
by a circuit court of the county of proper venue. §§ 536.100, 536.110. Section 536.010(4)
defines a “contested case” as “a proceeding before an agency in which legal rights, duties or
privileges of specific parties are required by law to be determined after hearing.” The “law”
requiring a hearing “includes any ordinance, statute, or constitutional provision that mandates a
hearing.” McCoy, 145 S.W.3d at 428.
In this case, section 19-23 of the City’s municipal code creates the PAB to “hear appeals
from corrective/disciplinary actions against city employees which result in disciplinary
demotion, suspension, or dismissal of an individual.” § 19-23(c)(3). The hearing is conducted
by procedures and rules established by the PAB. § 19-239. The employee filing the grievance
has the option of having the hearing open or closed and has the right to be heard and to present
evidence. Id. Testimony is given under oath, and a record is made of the hearing, but technical
rules of evidence do not apply. Id. Each party, as well as the PAB, may engage counsel and call
witnesses. Id.
Within ten working days after the hearing, the PAB renders its recommendations in
writing to the City Manager. Id. As soon as possible after the hearing, a certified written
transcript of the hearing along with all exhibits produced at the hearing is delivered to the City
Manager. Id. The City Manager is required to review the transcript and exhibits and, within
thirty days of receiving the transcript, render a decision supported by findings of fact and
conclusions of law. Id. There is nothing in section 19-239 of the City’s municipal code that
limits the City Manager to the transcript and evidence presented before the PAB. Id. In any
8
event, the City Manager’s decision “shall be final, binding and not subject to further
administrative appeal. ” Id.
The fact that the PAB held a hearing is not dispositive of whether this is a contested case
as defined by section 536.010(4). “Not all hearings are sufficient to comply with the
requirements of the MAPA and thereby create a contested case.” Wooldridge v. Greene Cty.,
198 S.W.3d 676, 684 (Mo. App. S.D. 2006). “[T]o trigger jurisdiction for contested case review
under section 536.010(2), the hearing mandated by law . . . also must be one ‘in which legal
rights, duties, or privileges of specific parties . . . are to be determined.’” McCoy, 145 S.W.3d at
428.
In McCoy and Kunzie, the Supreme Court addressed the circumstances under which an
employee’s grievance hearing will trigger contested case review. “In McCoy, a sheriff fired two
of his deputies. Thereafter, each deputy requested a hearing before a three-person statutory
review board. The board conducted its hearing, . . . prepared a written report[,] and forwarded it
to the sheriff for his consideration.” Wooldridge, 198 S.W.3d at 684. In concluding that the
hearing did not trigger contested case review, the Supreme Court stated:
Although there is to be a hearing, and findings of fact are to be made, and the
sheriff must review those findings, the sheriff still “has the final decision-making
authority,” and the statute does not subject that decision to any gauge or criteria.
Indeed, absent such statutory direction, the sheriff can terminate the deputies even
in the face of findings that wholly support the deputy’s continued employment. In
other words, even in view of the mandated hearing, the deputies are no less at will
employees. That is, they are employees who can be terminated for cause or for no
cause at all, absent, of course, any recognized public policy exception.
McCoy, 145 S.W.3d 428-29.
Similarly, in Kunzie, “the city manager fired a city employee. The city code created an
advisory body to hear appeals by city employees concerning their discharge and make written
recommendations to the city manager. The city manager, however, still had the right to make the
9
final decision.” Wooldridge, 198 S.W.3d at 684. In applying the analysis in McCoy to conclude
that contested case review had not been triggered, the Supreme Court stated:
As in McCoy, the hearing procedures here do not determine a city employee’s
legal rights, duties, or privileges. The board is merely advisory. Likewise, after
receiving the board’s recommendations, the city manager is vested with the
ultimate decision making authority. As in McCoy, the city manager’s decision is
not subject to any “gauge or criteria,” and the city manager can fire a city
employee despite contrary recommendation findings. This is not a contested
case . . . .
Kunzie, 184 S.W.3d at 573.
Finally, in Wooldridge, the Greene County Highway Administrator fired an employee of
the Greene County Highway Department. Between the Greene County Personnel Policy Manual
and a Union Resolution that covered employees like Wooldridge, who could only be terminated
for just cause, an advisory body was created to hear termination appeals in which the interested
parties were entitled to appear to present, examine, and cross-examine witnesses at any hearing
before this administrative body. Wooldridge, 198 S.W.3d at 681. However, this administrative
body only made written recommendations to the Highway Administrator to consider; the
Highway Administrator still retained the final decision-making authority, and the
Administrator’s decision was not subject to any gauge or criteria. Id. at 685. Relying upon
McCoy and Kunzie, the Wooldridge court concluded that the hearing Wooldridge received before
the personnel advisory administrative body did not serve to determine Wooldridge’s legal rights,
duties, or privileges to continued employment with the Greene County Highway Department;
hence, the process afforded Wooldridge did not constitute a contested case, and the Wooldridge
court remanded the matter to the circuit court for judicial review of the propriety of
Wooldridge’s termination as a noncontested case. Id.
10
Here, as in McCoy, Kunzie, and Wooldridge, although Sanders received an evidentiary
hearing before the PAB, that portion of Sanders’s grievance procedure did nothing to determine
his legal rights, duties or privileges relating to continued employment. The PAB only made
written recommendations to the City Manager when it submitted the record of its proceedings for
final determination, and the City Manager’s discretion was not subject to adequate gauge and
criteria. Though the evidentiary proceeding before the PAB was somewhat formal (in that each
party was represented by counsel that examined and cross-examined witnesses), the
corresponding record developed by the PAB proceeding, as prescribed by the City’s Code, did
not serve as an exclusive record to which the decision maker was limited in arriving at a final
decision. Instead, the final decision-making authority was vested in the independent discretion
of the City Manager. For although the City’s Code required the City Manager to review the
transcript and exhibits compiled by the PAB, there is nothing in the City’s Code limiting the City
Manager to that evidence, and there is certainly no requirement that the City Manager accept any
recommendations of the PAB in arriving at a final decision on Sanders’s legal right to continued
employment.
As in McCoy, the hearing procedures here do not determine a city employee’s
legal rights, duties, or privileges. The [personnel appeals] board is merely
advisory. Likewise, after receiving the board’s recommendations, the city
manager is vested with the ultimate decision making authority. As in McCoy, the
city manager’s decision is not subject to any “gauge or criteria,” and the city
manager can fire a city employee despite contrary recommendation findings [by
the personnel appeals board].
Kunzie, 184 S.W.3d at 573.
Simply put, in order to achieve “contested case” status, the “hearing” portion of the
grievance process must allow each party to be heard and to address the evidence of the opposing
party that ultimately will be relied upon by the person or entity making the final decision. In
11
other words, the result of the hearing must be “meaningful.” Absent a hearing that, in some real
sense, confines the final decision maker, the evidentiary hearing is nothing more than “window
dressing,” and any claimed due process afforded by such a hearing is fictional.
In this case, the evidentiary hearing before the PAB was not meaningful in that the City
Manager was not limited (by the City Code) in any manner by the evidence adduced at the PAB
hearing prior to the City Manager’s final involvement and decision relating to Sanders’s
continued employment. Guided by McCoy and Kunzie, if in the end the ultimate decision maker
operates independently from the hearing (as is the case here), no meaningful hearing has been
afforded, and the grievance process cannot be considered a contested case proceeding. This is
what our Supreme Court meant when it stated in McCoy and Kunzie that the ultimate decision
maker must be subject to some “gauge or criteria.”
Consequently, “[b]ecause the hearing [before the PAB] was not one in which [Sanders’s]
‘legal rights, duties or privileges [were] to be determined,’ this is not a ‘contested case.’”
McCoy, 145 S.W.3d at 429. Given the pleadings and procedural history of this case, the circuit
court lacked authority to afford judicial review as a contested case, 450 N. Lindbergh Legal
Fund, 2015 WL 3759314, at *4, and so do we. While both parties are seeking judicial review of
the City’s decision to terminate Sanders, whether that review is of a contested or noncontested
case,7 the pleadings and procedural history dictate that such judicial review must be that of a
7
That said, appellate review of contested and noncontested cases are governed by different standards,
which is why it is important that the circuit court proceed under the appropriate umbrella of review. As we
explained in State ex rel. Christian Health Care of Springfield, Inc. v. Missouri Department of Health & Senior
Services:
On appeal from the circuit court of a noncontested administrative decision, we review the
judgment of the circuit court, rather than the decision of the administrative agency. As such, our
review is essentially the same as for other judgments in a judge-tried case. In reviewing a
judge-tried case, we are governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), and
we will affirm the decision of the trial court unless it is not supported by substantial and competent
evidence, is against the weight of the evidence, or erroneously declares or applies the law.
12
noncontested case. Thus, we conclude that remanding the case for proceedings consistent with
this opinion is appropriate.
Conclusion
The judgment is reversed, and the case is remanded to the circuit court to judicially
review the matter as a noncontested case pursuant to section 536.150.8
Mark D. Pfeiffer, Presiding Judge
Lisa White Hardwick and James Edward Welsh, Judges, concur.
229 S.W.3d 270, 275 (Mo. App. W.D. 2007) (internal quotation and citations omitted). On the other hand, in a
contested case, the appellate court reviews the findings of fact and conclusions of law of the agency, not the
judgment of the circuit court. Ehler v. Mo. State Highway Patrol, 254 S.W.3d 99, 100 (Mo. App. W.D. 2008). The
agency’s decision will be affirmed if the findings are supported by competent and substantial evidence in the record.
Id. at 101.
8
We note that timeliness of appeal is not an issue as a petition for review of a noncontested case need only
be commenced within a reasonable time and such is the case in this proceeding. Wooldridge v. Greene Cty., 198
S.W.3d 676, 683 (Mo. App. S.D. 2006). In judicial review of a noncontested case, “[t]he circuit court does not
review the [agency] record for competent and substantial evidence, but instead conducts a de novo review in which
it hears evidence on the merits, makes a record, determines the facts and decides whether the agency’s decision is
unconstitutional, unlawful, unreasonable, arbitrary, capricious or otherwise involves an abuse of discretion.” City of
Valley Park v. Armstrong, 273 S.W.3d 504, 508 (Mo. banc 2009) (citing § 536.150). “The circuit court does not
defer to facts found or credibility assessed by the agency and need not conform doubtful evidence to the agency’s
decision.” Id. “The circuit court in a noncontested case acts to determine the evidence and give judgment from that
evidence.” Id. That said, on remand, there is nothing preventing the parties from stipulating to the circuit court that
it may determine Sanders’s right to continued employment based upon any transcript, depositions, or set of exhibits
upon which they may choose to agree; conversely, there is nothing requiring the parties to present evidence to the
circuit court in that fashion.
13