461 S.W.3d 57
Mo. Ct. App.2015Background
- Michael Cash, a DOR tax auditor of ~27 years, was terminated after attempting to fax a UMB credit‑card statement from an on‑site secure room during an audit. UMB halted the audit and removed the auditors.
- UMB liaison Jennifer Parker testified she told auditors to flag documents for UMB to copy and that faxing was not permitted; Cash and his partner Mary Winkert disputed that Parker forbade faxing.
- DOR termination letter cited failure to follow taxpayer instructions and DOR audit procedures; DOR argued Cash attempted to circumvent taxpayer procedures by faxing confidential records.
- Cash appealed to the Administrative Hearing Commission (AHC); the AHC credited Cash and Winkert, discredited Parker, found no DOR or UMB policy forbidding the fax, and reinstated Cash.
- Cole County Circuit Court reversed the AHC as unsupported by substantial evidence; the Court of Appeals (W.D.) reviewed the AHC decision and reversed the circuit court, affirming the AHC reinstatement.
Issues
| Issue | Cash's Argument | DOR's Argument | Held |
|---|---|---|---|
| Whether termination was "for the good of the service" | Termination was not for the good of the service because Cash did not commit misconduct; he acted consistent with practice and supervisor guidance | Termination was for the good of the service because Cash violated UMB directives and DOR document‑handling policies (personal misconduct) | AHC decision that termination was not for the good of the service affirmed; substantial evidence supported AHC credibility findings |
| Whether DOR bore burden to prove good‑of‑service | AHC placed burden on DOR but found Cash need only show absence of misconduct | DOR challenged AHC’s burden allocation | Court found burden allocation error harmless because AHC’s factual findings supported relief regardless |
| Whether UMB or DOR policies prohibited faxing | Cash: no express prohibition on faxing; copying and faxing viewed differently; supervisor told him faxing was permitted | DOR: UMB expressly directed auditors not to use fax; DOR policy forbids copying without pre‑authorization and requires agreement on record handling | AHC’s credibility findings (credited Cash and Winkert; discredited Parker) supported conclusion that policies did not clearly prohibit the fax; Court defers to AHC and upholds reinstatement |
| Weight of evidence / credibility | Credible testimony by Cash/Winkert that faxing was acceptable and routinely done; Swan’s cross‑examination admitted faxing could be done | DOR relied on UMB testimony and policy language to justify dismissal | Appellate court deferred to AHC credibility determinations and found substantial competent evidence supports AHC |
Key Cases Cited
- Faenger v. Bach, 442 S.W.3d 180 (Mo. App. W.D.) (discusses standards for "good of the service" and distinction from mere cause)
- Faenger v. Wofford, 442 S.W.3d 190 (Mo. App. W.D.) (same court's guidance on good‑of‑service analysis)
- McSwain v. Morton, 452 S.W.3d 199 (Mo. App. W.D.) (explains that dismissal for the good of the service requires misconduct of such seriousness that dismissal is required)
- Lombardi v. Dunlap, 103 S.W.3d 786 (Mo. App. W.D.) (discusses standard for dismissals under good‑of‑service framework)
- Cent. Cnty. Emergency 911 v. Int'l Ass'n of Firefighters Local 2665, 967 S.W.2d 696 (Mo. App. W.D.) (erroneous burden allocation harmless where party meeting proper burden)
- State ex rel. Lohman v. Personnel Advisory Bd., 948 S.W.2d 701 (Mo. App. W.D.) (non‑merit agencies deemed to adopt §36.390(5) appeal procedures)
- Bowen v. Missouri Dep't of Conservation, 46 S.W.3d 1 (Mo. App. W.D.) (explains protection for employees under §36.390 against termination not for the good of the service)