Section 18 Grounds for Dismissal

• Library: Personnel Hearings 2011

The legislature granted nonmerit employees the type of post-dismissal procedures normally associated with employees who have a property interest in their jobs protected by the Due Process
Clause under the Fourteenth Amendment of the United States Constitution. But the legislature did so without providing expressly that nonmerit employees may not be dismissed except “for cause” as it expressly provided for merit employees in § 36.380, RSMo Supp. 2010. This raises the issue of whether the provision of the appeal procedures in itself is sufficient to create a property interest in the jobs of nonmerit employees. The importance of this issue lies in whether the law now entitles the dismissed nonmerit employee to pre-dismissal procedures consistent with those that due process requires for merit employees and whether the law entitles the nonmerit employee to judicial review under § 536.140, RSMo Supp. 2010.

The appellate courts took various positions before arriving at the currently effective holdings. In Cole v. Conservation Commission,
884 S.W.2d 18 (Mo. App. W.D. 1994), the Conservation Commission dismissed a nonmerit at-will employee for fighting. It provided him with a grievance procedure for his dismissal that does not appear to have involved a contested case hearing. Cole sought judicial review under § 536.150, now RSMo 2000. He did not raise the issue of whether his appeal procedure was substantially similar to that in § 36.390.5, now RSMo Supp. 2010, or argue that what is now § 36.390.6 and .7 gave him a property interest in his job. Instead, Cole complained of the inadequacy of the reasons for his dismissal on the basis that the agency’s personnel manual provisions gave him the right not to be dismissed except for cause.

The court rejected Cole’s assertions about the effect of the personnel manual because the manual expressly stated that it was not granting any rights concerning the cause of dismissals. The court denied Cole review under § 536.150 on the general principle that “judicial review is not available to a terminated employee-at-will unless the employee is protected by statute, ordinance, regulation or employment contract.” Cole, 884 S.W.2d at 20 (relying on Barnes v. City of Lawson, 820 S.W.2d 598, 600 (Mo. App. W.D. 1991) (at-will employees are “subject to discharge at will without reason, or for any reason”)). The court held that Cole was not entitled to judicial review because he was a common law employee at will who could be terminated for...