State of Missouri, ex rel Jerry Scherschel v. City of Kansas City, Missouri

In the
Missouri Court of Appeals
Western District
STATE OF MISSOURI, EX REL. )
JERRY SCHERSCHEL, )
) WD77951
Respondent, )
) OPINION FILED: September 8, 2015
v. )
)
CITY OF KANSAS CITY, MISSOURI, )
ET AL., )
)
Appellant. )
Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Justine E. Del Muro, Judge
Before Division One: Cynthia L. Martin, Presiding Judge, Joseph M. Ellis, Judge and
James E. Welsh, Judge
The City of Kansas City, Missouri, ("City") appeals a mandamus judgment
directing it to comply with the Administrative Code of Kansas City by adjusting
employee Jerry Scherschel's ("Scherschel") pay classification and pay rate. The City
argues that the trial court erred because (1) Scherschel failed to show by clear and
convincing evidence that he was entitled to a mandamus judgment; (2) the judgment
relied on hearsay testimony; and (3) the judgment improperly awarded money damages.
Finding no error, we affirm.
Factual and Procedural History1
Section 906(a) of the City Charter provides that the City Council "shall establish a
schedule of compensation for employees in the municipal service." Section 906(b) of the
City Charter provides that the schedule of compensation shall be uniform "for like service
as determined by the grading and classification of the Human Resources Director."
"Such schedule of compensation may establish a minimum and a maximum for any class
. . . . An increase in compensation may be granted by the City Manager or other
appointing authority upon the basis of efficiency and seniority records, subject to such
rules and regulations as may be established." City Charter, Section 906(b) (emphasis
added).
As directed by the City Charter, the City Council has enacted a classification and
compensation schedule for City employees pursuant to duly enacted ordinances. These
schedules, and related rules and regulations adopted by the City Council, are set forth in
the City's Administrative Code ("Code"). Pay rate schedules for the occupational group
classified as "Public Safety and Inspectional," a group which includes the "Security
Specialist" and "Airport Police Officer" positions, are set forth in Code Section 2-1078.
Scherschel became a permanent employee with the City on September 29, 1997.
By early 2011, Scherschel was classified as a "Security Specialist." Pursuant to Code
Section 2-1078, as adopted by the City in May 2011 pursuant to Ordinance No. 110241,
1
The following facts principally come from the stipulated facts the parties provided to the trial court.
2
the Security Specialist position had a designated pay grade of "M-G." On May 22, 2011
Scherschel changed positions with the City and became an Airport Police Officer.
Pursuant to Code Section 2-1078, the Airport Police Officer position had a designated
pay grade of "M-HB."
Historically, Code Section 2-1075 has outlined the authorized salaries for
positions based on pay grades. The version of Code Section 2-1075 in effect in 2011
specified a minimum and maximum "open" salary range for each recognized pay grade.
Code Section 2-1075 directed that a position with a pay grade of M-G had a minimum
monthly salary of $2,649 and a maximum monthly salary of $4,050; and that a position
with a pay grade of M-HB had a minimum monthly salary of $1,992 and a maximum
monthly salary of $4,722. Code Section 2-1075 identified pay grade M-HB as two pay
grades above pay grade M-G.
Most pertinent to this case is Code Section 2-1086, entitled "[i]nterpretation and
application of compensation plan." Code Section 2-1086(c) provides that "[u]nder each
salary schedule there is set forth a minimum and maximum salary rate." Code Section 2-
1086(i) addresses "[s]alary rate upon promotion, transfer or demotion." Code Section 2-
1086(i)(1)(A) defines a promotion as "[w]hen an employee moves from one position to a
vacant position having a higher maximum rate." (Emphasis added.) Code Section 2-
1086(i)(1)(B) defines a demotion as "[w]hen an employee moves from one position to a
vacant position having a lower maximum rate than the position previously vacated."
(Emphasis added.) Code Section 2-1086(i)(3) provides that "[e]mployees who are within
six months of their next pay anniversary date when promoted shall receive a pay
3
increase according to the following: . . . (B) With a two-grade increase, the employee
will receive a ten percent increase." (Emphasis added.) Finally, Code Section 2-
1086(i)(4) provides that "[i]n all cases the new rate of pay shall be at least the minimum
and not more than the maximum of the new pay grade."
When Scherschel was offered the position as an Airport Police Officer, the
maximum monthly salary for the position of Security Specialist was $4,050 per month,
and the maximum monthly salary for the position of Airport Police Officer was $4,722
per month. Thus, a move to the position of Airport Police Officer fell with the definition
of "promotion" set forth in Section 2-1086(i)(1)(A). However, Scherschel was asked to
sign a voluntary demotion memorandum prepared by Aviation Department Director Mark
VanLoh ("VanLoh"). The memorandum indicated that Scherschel was "voluntarily
accept[ing] a position . . . as an Airport Police Officer" effective May 22, 2011, and
understood that "by accepting this position [he would] take a decrease in [his] monthly
salary, from $3,931 to $3,341." A personnel transaction form entered by the City on
June 2, 2011, confirmed that Scherschel was designated as an Airport Police Officer with
a pay grade of M-HB receiving a salary of $3,341 a month, a reduction of fifteen percent
when compared to the salary he had been receiving as a Security Specialist.
On April 14, 2013, Scherschel wrote a letter to VanLoh protesting the
classification of his move to the Airport Police Officer position as a demotion and
protesting the fifteen percent reduction in his pay. In the letter, Scherschel recounted a
conversation he had with Acting Chief of KCI Airport Police Captain James Harmon
("Harmon") at the time Scherschel was considering the Airport Police Officer position.
4
Harmon told Scherschel that he "would be required to take a demotion and a reduction in
[his] pay rate upon becoming an [Airport Police Officer]." Harmon told Scherschel that
the Airport Police Officer position included three job classifications: Airport Police
Officer Trainee, Airport Police Officer I, and Airport Police Officer II; that the
classifications contained twenty three steps in pay; and that Scherschel was not qualified
to maintain the pay rate he was receiving as a Security Specialist because he did not hold
the certifications necessary to be an Airport Police Officer II. Harmon also told
Scherschel that he "would not qualify for a pay advancement until [Scherschel] met the
certification requirements and serv[ed] four years as an Airport Police Officer I."
Scherschel's letter noted that he had since learned that Code Section 2-1078 was
amended by the City in March 2005 pursuant to Ordinance No. 050222 to eliminate the
three sub-classifications described to him by Harmon in favor of a single Airport Police
Officer position with a pay grade of M-HB. Ordinance No. 050222 also amended Code
Section 2-1075 to describe sixteen permissible compensation levels for positions with a
pay grade of M-HB. Scherschel's letter pointed out that Code Section 2-1075 was
promptly again amended by the City in April 2005 pursuant to Ordinance No. 050424 to
eliminate permissible compensation levels within pay grades in favor of "open" salary
ranges for each pay grade, describing only a minimum and a maximum monthly pay rate.
It was this version of Code Section 2-1075 that was in effect when Scherschel accepted
the position of Airport Police Officer.
Scherschel's letter requested that his move to the Airport Police Officer position be
reclassified as a promotion pursuant to Code Section 2-1086(i)(1)(A) and that his
5
compensation be retroactively adjusted to reflect the ten percent increase in pay he was
entitled to receive pursuant to Code Section 2-1086(i)(3)(B).
On June 4, 2013, Human Resources Director Gary O'Bannon ("O'Bannon")
responded to Scherschel's letter, stating that Scherschel's "current compensation is
correct, his pay upon his voluntary demotion was calculated correctly and that he is
classified appropriately." O'Bannon's letter claimed that Code Section 2-1086 affords the
Human Resources Director the authority to create specific class and pay plans for city
departments and that "[t]he existing competencies received my approval in 2005, and
they were subsequently approved via city ordinance." O'Bannon's letter referred to
Ordinance No. 050222 and claimed the ordinance specifically authorized the creation of
sub-classifications within the position of Airport Police Officer. O'Bannon's letter
claimed that the Human Resources Director was thus allowed to require "qualified
incumbents to matriculate through the pay ranges based on the demonstration of
competencies established and communicated by the Aviation Department." O'Bannon
stated that because Scherschel did not possess the certifications "to move into zone 3 of
the pay range" (the Airport Police Officer II classification) at the time he accepted the
Airport Police Office position, Scherschel could not receive compensation within the pay
range ascribed to that sub-classification.
On December 20, 2013, Scherschel filed a petition for a writ of mandamus.
Scherschel argued that the City failed to perform a ministerial duty by refusing to
properly classify his pay rate pursuant to the requirements of the Code. He requested that
the City re-classify his pay rate to include the ten percent raise he should have received
6
upon moving to the Airport Police Officer position on May 22, 2011, plus any subsequent
raises he received, and to award him $32,730.42 in back pay. On January 27, 2014, the
trial court issued a preliminary order in mandamus, directing the City to respond to
Scherschel's petition.
The City filed a memorandum opposing Scherschel's petition, repeating the
arguments set forth in O'Bannon's letter. The City's memorandum attached an undated
document titled "Airport Police Officer Salary and Classification Review" and argued
that the City did not fail to perform a ministerial duty because Scherschel "was treated in
accordance with the rules and policies set in place by the Aviation Department . . . since
2005."
Prior to trial, Scherschel and the City filed a joint stipulation of facts which
stipulated to the admission of Scherschel's letter to VanLoh into evidence. The City
stipulated that the Airport Police Officer position, an "M-HB" pay grade position, was a
two pay grade increase over the Security Specialist position, an "M-G" pay grade
position. The City also stipulated that Scherschel accepted the Airport Police Officer
position within six months of his next pay anniversary date.
During the trial to the court, Scherschel was the only witness. Scherschel
recounted his conversation with Harmon prior to accepting the position of Airport Police
Officer and signing the voluntary demotion memorandum. Scherschel testified that he
signed the voluntary demotion memorandum in reliance on his conversation with
Harmon. The City objected to Scherschel's testimony as hearsay. The trial court
overruled the objection, stating that Scherschel's testimony was not being received for the
7
truth of Harmon's statements but rather to explain Scherschel's subsequent action in
signing the voluntary demotion memorandum. The City offered no evidence, relying
solely on its memorandum filed in opposition to Scherschel's petition.
On September 6, 2014, the trial court issued a permanent writ of mandamus
judgment. The judgment "mandated [the City] to comply with Code Section 2-
1086(i)(1)(A) and 2-1086(i)(3) in determining [Scherschel's] pay classification, and to
adjust [Scherschel's] pay consistent with his pay classification as of May 22, 2011."
The City timely appealed.
Summary of Issues on Appeal
The City raises three points on appeal. In its first point, the City argues that the
trial court erred in issuing a permanent writ of mandamus because Scherschel failed to
show that he had a clear, unequivocal, and specific right to the salary modification he
sought. In its second point, the City argues that the trial court erred in admitting
Scherschel's testimony about his conversation with Harmon because the testimony was
inadmissible hearsay. In its third point, the City argues that the trial court erred in
awarding Scherschel money damages.
Point One
In its first point, the City argues it did not fail to perform a ministerial duty
because Scherschel was treated in accordance with the internal Aviation Department
classifications and salary ranges for the Airport Police Officer position.
8
Standard of Review
"Mandamus is appropriate when seeking to require an official to perform a
ministerial act." Burnett v. Kansas City Sch. Bd., 237 S.W.3d 237, 238 (Mo. App. W.D.
2007) (citing State ex rel. Mo. Growth Ass'n v. State Tax Comm'n, 998 S.W.2d 786, 788
(Mo. banc 1999)). "This court reviews the grant of a writ of mandamus under an abuse
of discretion standard." Burnett, 237 S.W.3d at 238. "Under [that] standard, we will
reverse the trial court's ruling only if it is so arbitrary and unreasonable as to shock the
sense of justice and indicates a lack of careful consideration." Id. at 238-39 (internal
quotations omitted). "We will not find an abuse of discretion if reasonable people might
differ about the propriety of the trial court's decision." Id. at 239. "Matters of statutory
interpretation are reviewed de novo." Id. (citing State ex rel. Wolfrum v. Wiesman, 225
S.W.3d 409, 411 (Mo. banc 2007)).
"The remedy of a writ of mandamus is only appropriate where a party has a clear
duty to perform a certain act." State ex rel. Lee v. City of Grain Valley, 293 S.W.3d 104,
106 (Mo. App. W.D. 2009) (internal quotations omitted). "A litigant asking relief by
mandamus must allege and prove that he has a clear, unequivocal, specific right to a thing
claimed." State ex rel. McKee v. Riley, 240 S.W.3d 720, 725 (Mo. banc 2007) (internal
quotations omitted). "Whether a petitioner's right to mandamus is clearly established and
presently existing is determined by examining the statute or ordinance under which
petitioner claims the right." State ex rel. Lee, 293 S.W.3d at 107.
9
Analysis
The City argues that it performed its ministerial duty by classifying and paying
Scherschel according to internal pay zones established by the Aviation Department that
modified the salary ranges provided in the Code. The City supports its argument by
referencing the undated document attached to the memorandum filed in opposition to
Scherschel's petition. According to the City, that document outlines the three approved
sub-classifications and corresponding pay steps within the Airport Police Officer position
as codified in March 2005 when the City passed Ordinance No. 050222.
The City's argument is flawed in two respects. First, the City's argument ignores
that Ordinance No. 050222 amended Code Section 2-1078 to eliminate the three sub-
classifications described in the undated internal document relied on by the City in favor
of a single Airport Police Officer position with a pay grade of M-HB. The City's
argument also ignores that Ordinance No. 050222 amended Code Section 2-1075 to
outline sixteen steps within pay grade M-HB positions, but that Ordinance No. 050424,
adopted barely a month later in April 2005, eliminated steps within pay grades in favor of
open salary ranges for each pay grade specifying a minimum and maximum monthly
salary rate.
Second, the City's argument ignores that regardless of whether the Aviation
Department Director retained some authority and discretion to sub-classify the Airport
Police Officer position following the amendment to Code Section 2-1078 in March 2005,
and the amendments to Code Section 2-1075 in March and April 2005, that authority and
discretion was expressly "subject to such rules and regulations as may be established."
10
City Charter Section 906(b). One such "rule and regulation" is Code Section 2-1086,
which details the parameters for interpreting and applying the compensation plan
approved by the City Council. Code Section 2-1086(i)(1)(A) unequivocally provides that
when an employee moves "from one position to a vacant position having a higher
maximum rate," that employee has been promoted. Code Section 2-1086(i)(3)
unequivocally provides that when an employee is promoted within six months of his pay
anniversary date, the promoted employee "shall receive a pay increase" calculated based
on the pay grade increase. (Emphasis added.) In the case of a two pay grade increase,
Code Section 2-1086(i)(3)(B) unequivocally provides that the promoted employee "will
receive a ten percent increase." (Emphasis added.) The City stipulated to facts that yield
the inescapable conclusion that Scherschel was promoted when he moved from the
Security Specialist position to the Airport Police Officer position and that his promotion
was a two pay grade increase that occurred within six months of Scherschel's next pay
anniversary date. Scherschel plainly met his burden to establish that the City had a clear
duty to characterize his classification and compensation according to the unequivocal
provisions of the City's Code.
The City nonetheless argues that it retained the discretion to disregard the
provisions of Code Sections 2-1086(i)(1)(A) and 2-1086(i)(3)(B). The City argues that
Code Section 2-1086(i)(4) provides that "[i]n all cases," the new rate of pay for a
promoted employee "shall be at least the minimum and not more than the maximum of
the new pay grade." The City suggests this provision restores complete discretion in the
proper appointing authority to set compensation for a promoted employee anywhere
11
along the spectrum of the "open" salary range assigned to a pay grade. This argument is
without merit. Code Section 2-1086(i)(4) does nothing more than to set the outside
parameters of permissible compensation. It does not bestow authority on an appointing
authority to ignore the balance of Code Section 2-1086(i). In fact, to construe Code
Section 2-1086(i)(4) as the City suggests would render meaningless and superfluous
Code Section 2-1086(i)(1) defining promotion and demotion and Code Section 2-
1086(i)(3) mandating salary increases for promotions within six months of a pay
anniversary date.
The City also argues that even if it was obligated by the Code to treat Scherschel's
move to the Airport Police Officer position as a promotion, Scherschel waived that
characterization by signing the voluntary demotion memorandum. The City cites no
authority for the proposition that it has the authority to disregard the Code's directives
addressing the mandatory compensation of City employees by an agreement purportedly
reached with an employee. Rule 84.04(d) requires an appellant to provide appropriate
citation to authority in support of a contention on appeal. Roberts v. State, 356 S.W.3d
196, 205 (Mo. App. W.D. 2011). In the absence of doing so, or of an explanation for the
inability to do so, we may consider the argument abandoned or waived. Id.; see also Rios
v. State, 368 S.W.3d 301, 317 (Mo. App. W.D. 2012).
More to the point, Scherschel explained that he only signed the voluntary
demotion letter because he relied on Harman's characterization of the City's
compensation obligations. The City offered no evidence to the contrary. The City's clear
12
duty to follow the Code does not disappear simply because Scherschel was persuaded by
misinformation to sign a demotion letter.
Scherschel clearly demonstrated that his move to the Airport Police Officer
position should have been considered a promotion under Section 2-1086(i)(1)(A) and that
he should have received a raise as a result of that promotion under Section 2-
1086(i)(3)(B). In its judgment, the trial court ruled that "[t]his case is not about setting
out salary ranges as [the City] would argue . . . it is about enforcing an ordinance that
determines the promotion or demotion classification of an employee." The trial court did
not abuse it discretion by mandating the City "to comply with Code Section 2-
1086(i)(1)(A) and 2-1086(i)(3) . . . ."
Point one is denied.
Point Two
In its second point, the City argues that the trial court abused its discretion in
admitting and relying on testimony regarding a conversation Scherschel had with
Harmon because the testimony was inadmissible hearsay. The City asserts that the
admission of this testimony deprived it of a fair trial.
Standard of Review
"The trial court has broad discretion in determining whether to admit or exclude
evidence." State v. Joyner, 458 S.W.3d 875, 880 (Mo. App. W.D. 2015). "Thus, we
review the trial court's decisions regarding the admission of evidence for an abuse of
discretion." Id. "For evidentiary error to cause reversal, prejudice must be
demonstrated." State v. Ise, 460 S.W.3d 448, 459 (Mo. App. W.D. 2015) (quoting State
13
v. Reed, 282 S.W.3d 835, 837 (Mo. banc 2009)). "Trial court error is not prejudicial
unless there is a reasonable probability that the trial court's error affected the outcome of
the trial." Ise, 460 S.W.3d at 459 (quoting State v. Forrest, 183 S.W.3d 218, 224 (Mo.
banc 2006)).
Analysis
The City asserts that Scherschel's testimony about what Harmon told him was
inadmissible hearsay. This argument ignores that the City stipulated to the admission
into evidence of Scherschel's letter to VanLoh in which Scherschel recounted the
conversation he had with Harmon before accepting the Airport Police Officer position.
Scherschel's testimony at trial simply repeated the details described in his letter. By
stipulating to the admission of Scherschel's letter into evidence, the City waived any
objection to Scherschel's consistent trial testimony on the basis of hearsay. Mullenix-St.
Charles Properties, L.P. v. City of St. Charles, 983 S.W.2d 550, 557 (Mo. App. E.D.
1998) ("[A] party waives any objection to the admission of evidence that it has stipulated
. . . .").
In any event, Scherschel's trial testimony regarding his conversation with Harmon
was not admitted for its truth and was thus not hearsay. "Hearsay is defined as 'any out-
of-court statement that is used to prove the truth of the matter asserted and that depends
on the veracity of the statement for its value.'" State v. Reynolds, 456 S.W.3d 101, 104
(Mo. App. W.D. 2015) (quoting State v. Sutherland, 939 S.W.2d 373, 376 (Mo. banc
1997)). But "testimony of what another said, when offered in explanation of conduct
rather than as proof of the facts in the other's statement, is not inadmissible hearsay."
14
State v. Leisure, 796 S.W.2d 875, 880 (Mo. banc 1990). Scherschel testified at trial that
his decision to sign the voluntary demotion memorandum was based on his conversation
with Harmon. The trial court correctly responded to the City's hearsay objection at trial
by limiting the admission of Scherschel's testimony to an explanation of his subsequent
decision to sign the voluntary demotion letter.
Point two is denied.
Point Three
In its third point, the City argues that the monetary damages awarded in the
mandamus judgment were improper because Scherschel did not demonstrate a statutory
basis supporting an award of monetary damages in a mandamus action.
Standard of Review
"This court reviews the grant of a writ of mandamus under an abuse of discretion
standard." Burnett, 237 S.W.3d at 238. "Under [that] standard, we will reverse the trial
court's ruling only if it is so arbitrary and unreasonable as to shock the sense of justice
and indicates a lack of careful consideration." Id. at 238-39.
Analysis
The City argues that the trial court erred in awarding Scherschel monetary
damages. The premise of the City's argument is inaccurate. The trial court did not award
Scherschel monetary damages when it issued the permanent writ of mandamus. The trial
court simply "mandated [the City] to comply with Code Section 2-1086(i)(1)(A) and 2-
1086(i)(3) in determining [Scherschel's] pay classification, and to adjust [Scherschel's]
pay consistent with his pay classification as of May 22, 2011." Though the effect of the
15
mandamus judgment is to impose an obligation on the City to pay Scherschel all that he
would have been paid but for the City's failure to timely perform its ministerial duty, and
though, failing to do so, the City may well be subject to a suit for monetary damages,2
those "effects" do not render the mandamus judgment a "money judgment."
The City is effectively arguing that mandamus will never lie when the "ministerial
duty" sought to be enforced involves the clear duty to pay money. We disagree. The
result here is indistinguishable from circumstances where mandamus is secured to collect
on judgments against political subdivisions. See Otte v. Missouri State Treasurer, 141
S.W.3d 74, 76 n.3 (Mo. App. E.D. 2004) ("[T]he preferred means to collect money
clearly owed by the state is mandamus."); State ex rel. Hufft v. Knight, 121 S.W.2d 762,
764 (Mo. App. 1938) (noting that "[s]ince an execution may not run against the property
of a . . . political sub-division of the State the only other procedure available to a
judgment creditor to enable him to collect his judgment is for a court of competent
jurisdiction to issue its writ of mandamus . . ."). There is simply no authority for the
proposition that mandamus will not lie to enforce a clear duty where the effect of the duty
will be to require remuneration.
The City correctly argues in its brief that monetary damages are only available in a
mandamus proceeding in Missouri if they are based upon a false return,3 and that
2
See, e.g., Steadley v. Stuckey, 87 S.W. 1014 (Mo. App. 1905) (where, after being compelled by mandamus
in an earlier proceeding to canvass the vote to declare plaintiff duly elected into a office, the city clerk was sued for
the unpaid salary deprived the plaintiff while awaiting canvassing of the vote).
3
Section 529.060 governs damages in a mandamus action. Section 529.060 provides that "[i]n case a
verdict shall be found for the person suing out such writ . . . he shall recover his damages and costs, in such manner
as he might do in a civil action for a false return, and the same may be levied by execution, as in other cases." This
provision has been interpreted to mean that "a successful relator in a mandamus proceeding may not recover
damages unless they are based upon a false return." State ex rel. Raine v. Schriro, 914 S.W.2d 56, 59 (Mo. App.
16
Scherschel did not plead a false return in his petition for a writ of mandamus. However,
because, as we have explained, the mandamus judgment did not award monetary
damages to Scherschel, the City's argument is of no import.
Point three is denied.
Conclusion
The trial court's judgment of a permanent writ of mandamus is affirmed.
__________________________________
Cynthia L. Martin, Judge
All concur.
W.D. 1996) (citing Smith v. Berryman, 272 Mo. 365, 199 S.W. 165, 166 (Mo. banc 1917)); Leamon v. City of
Independence, 625 S.W.2d 204, 208 (Mo. App. W.D. 1981). Schriro explained that the concept of a false return
comes from the common law history of the writ of mandamus and that Berryman, after reviewing that history and
the legislative history of Missouri's mandamus statutes, concluded that a successful relator has no recoverable
damages "unless the respondent by making a false return, and thereby raising a false issue of fact, as
contradistinguished from pure issues of law, puts the relator to vexation and expense in disproving such false issue
of fact." Schriro, 914 S.W.2d at 59 (quoting Berryman, 199 S.W. at 166). "In such cases, and in no other, can a
successful relator in mandamus recover damages." Berryman, 199 S.W. at 166. Finally, Schriro noted that even
through Berryman was "interpreting prior versions of the mandamus statutes, the provisions of the statutes have
remained substantially the same since their original enactment in 1825." Schriro, 914 S.W.2d at 59. The current
version of section 529.060 has remained unchanged since it was enacted in 1939.
17