This slip opinion is subject to revision and may not
reflect the final opinion adopted by the Court.
Opinion
Missouri Court of Appeals Western District
Case Style: Forest G. Parker, Appellant v. City
of St. Joseph, Missouri, Respondent.
Case Number: WD64000
Handdown Date: 06/28/2005
Appeal From: Circuit Court of Cole County, Hon.
Thomas J. Brown, III
Counsel for Appellant: Jeffrey Bruce
Counsel for Respondent: Janice E. Farr and
Matthew J. Gist
Opinion Summary:
Forest Parker appeals from the circuit court's dismissal
of his petition for judicial review for lack of subject matter jurisdiction
under the contested case provisions of section 536.100, RSMo. 2000. The court
determined that Parker was required to arbitrate his employment grievance in
order to exhaust the administrative procedures. Parker contends the arbitration
requirement violates his constitutional and statutory right to direct and
immediate review of an agency decision.
AFFIRMED.
Division Two holds:
The arbitration requirement was lawful because the administrative procedure
preserved Parker's right to judicial review once the arbitrator rendered a final
decision. The circuit court properly dismissed the petition for judicial review
Parker failed to exhaust his administrative remedies by arbitrating his
grievance.
Citation:
Opinion Author: Lisa White Hardwick, Judge
Opinion Vote: AFFIRMED. Ulrich and Newton, J.J.,
concur.
Opinion:
Forest Parker, a former supervisory employee for the City of St. Joseph, sought
judicial review of his employment termination under the contested case
provisions of the Missouri Administrative Procedure Act ("MAPA"),
section 536.100, RSMo. 2000. The circuit court dismissed the petition for
judicial review based on a lack of subject matter jurisdiction. Parker appeals
from the court's determination that he failed to exhaust his administrative
remedies. We affirm the dismissal because Parker failed to arbitrate his
employment grievance, as required by the City's administrative procedure.
FACTUAL AND PROCEDURAL HISTORY
Parker was employed by the City of St. Joseph for twenty-two years as the
Superintendent of Waste Water Operations. In March 2003, the City's Director of
Public Works notified Parker that his employment was terminated for cause.
Pursuant to grievance procedures in Section 15 of the City Personnel Code,
Parker appealed the Director's decision to the City's Personnel Board. Following
a hearing, the Personnel Board concluded the decision to remove Parker from his
supervisory position was just and reasonable. However, the Board recommended to
the City Manager that Parker be demoted to a non-supervisory position instead of
being terminated.
After review of the Board's recommendation, the City Manager upheld the
employment termination and notified Parker of his right to pursue arbitration.
The City Personnel Code provides that "[t]he decision of the arbitrator on
the appeal shall be final and conclusive, except that any decision pertaining to
pay, retirement benefits, or the expenditure of money, shall be subject to City
Council approval by Ordinance." Section 15.2.6.2. Parker timely
filed for arbitration of his grievance.
Prior to the arbitration hearing, Parker also filed a Petition for Judicial
Review in the Circuit Court of Cole County. The City moved to dismiss the
petition for lack of subject matter jurisdiction because Parker failed to
exhaust his administrative remedy of arbitration under the Personnel Code. The
circuit court granted the motion to dismiss, and Parker appeals.
POINT ON APPEAL
In his sole point on appeal, Parker contends the circuit court erred in
determining that he failed to exhaust all administrative remedies under the
City's Personnel Code. The court concluded it did not have subject matter
jurisdiction because arbitration was the final step of the City's administrative
grievance procedure, and Parker prematurely sought judicial review of his
employment termination before the arbitration was conducted. Parker argues the
City made its final administrative decision when the City Manager terminated his
employment. He asserts the arbitration requirement violated his right to
immediate and direct judicial review of the City's final decision, as provided
in the Missouri Constitution, Art. V, section18, (FN1)
and MAPA, section 536.100. Thus, he contends the circuit court could not require
him to arbitrate before seeking judicial review of the City's employment
termination decision.
The exhaustion of administrative remedies is a jurisdictional requirement for
judicial review under MAPA, section 536.100. (FN2)
"The purpose of exhaustion is to prevent premature interference with agency
processes so that the agency may function efficiently and so that it may have an
opportunity to correct its own errors, to afford the parties and the courts the
benefit of its experience and expertise, and to compile a record that is
adequate for judicial review." Doody v. State, Dep't of Soc. Servs.,
Div. of Child Support Enforcement, 993 S.W.2d 563, 565 (Mo.App. 1999).
Exhaustion occurs when every step of the administrative procedure has been
completed and the agency renders a final decision. Maynes Const. v. City
of Wildwood, 965 S.W.2d 949, 952 fn.1 (Mo.App. 1998). "A decision
is final if the agency arrived at a terminal, complete resolution of the
case." Hayward v. City of Independence, 967 S.W.2d 650, 652 (Mo.App.
1998).
When exhaustion is required and a party fails to pursue all administrative
remedies, the circuit court is without subject matter jurisdiction and the only
recourse is to dismiss the cause. Golden Rule Ins. Co. v. Mo. Dep't of
Ins., 56 S.W.3d 471, 474 (Mo.App. 2001). The propriety of the circuit
court's jurisdiction is "solely an issue of law[,]" which we review de
novo. McCoy v. Caldwell County, 145 S.W.3d 427, 428 (Mo. banc
2004).
Parker relies on Asbury v. Lombardi, 846 S.W.2d 196 (Mo. banc 1993),
in arguing that he could not be required to arbitrate in order to exhaust his
administrative remedies. In Asbury, the constitutionality
of the grievance procedure in the State Personnel Law, section 36.390.9, RSMo
1986, was at issue. Id. at 198. The statute permitted
aggrieved state employees to appeal final decisions of the Personnel Advisory
Board to either the Administrative Hearing Commission (AHC) or the circuit
court, but not both. Id. at 199. The Supreme Court
determined the statutory procedure was unconstitutional because any appeal to
the AHC would preclude judicial review. Id. at 202.
The arbitration procedure in the City's Personnel Code does not preclude
judicial review. The Code provision stating that the arbitrator's decision
"shall be final and conclusive" indicates only that arbitration is the
terminal step in the administrative procedure. The Asbury decision
recognized that additional levels of administrative review may be required, as
long as judicial review is immediately available once the agency decision is
final. Id. Under the Personnel Code, Parker would be
entitled to judicial review immediately after the arbitration decision is
rendered and the City Council approves or disapproves any compensation awarded. (FN3)
Accordingly, the City's grievance procedure does not violate his constitutional
or statutory right to have the employment termination decision directly reviewed
by the courts.
Parker further argues that a decision from an outside arbitrator is not one from
an agency or administrative officer, as is required to invoke jurisdiction for
judicial review. That issue was addressed in Roberts v. City of St.
Joseph, 637 S.W.2d 98, 101-02 (Mo.App. 1982), where we recognized that
grievance procedures requiring arbitration as a final step in the public sector
is a trend favored by the courts. As mandated by the City's Personnel Code, the
selection and vesting of arbitration power in an outside arbitrator constitutes
the arbitrator as a "public body." Id. at 103. We find
nothing improper about the use of an arbitrator
here, because the City retains ultimate authority to approve or disapprove any
compensation awarded and Parker retains the right to judicial review once the
administrative procedure is completed.
The circuit court correctly determined that Parker failed to exhaust his
administrative remedies under the City's grievance procedure. The dismissal of
the Petition for Judicial Review is affirmed, as the court did not have subject
matter jurisdiction.
All concur.
Footnotes:
FN1. Art. V., section 18 provides in relevant
part: "All final decisions, findings, rules and orders on any
administrative officer or body existing under the constitution or by law, which
are judicial or quasi-judicial and affect private rights, shall be subject to
direct review by the courts as provided by law[.]"
FN2. Section 536.100 provides in relevant part:
"Any person who has exhausted all administrative remedies provided by law
and who is aggrieved by a final decision in a contested case … shall be
entitled to judicial review thereof …"
FN3. The City argued on appeal that this case
would not be subject to judicial review as a contested case following the City
Manager's decision because Parker did not have a hearing (before the City
Personnel Board) at which his legal rights were determined, as required by McCoy,
145 S.W.3d at 428-29. The City concedes,
however, that once the arbitration procedure is completed, this would be a
contested case subject to judicial review.
Separate Opinion:
None
This slip opinion is subject to revision and may not
reflect the final opinion adopted by the Court.
