Foltz v. City of St. Louis

677 S.W.3d 856

Zachariah FOLTZ, Appellant,

v.CITY OF ST. LOUIS, et al., Respondents.

No. ED 111086

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: September 5, 2023

Motion for Rehearing and/or Transfer to Supreme Court Denied October 10, 2023

Application for Transfer Denied November 21, 2023

FOR APPELLANT: Jonathan Bruntrager, Mary L. Bruntrager, 225 South Meramac Ave., Suite 1200, Clayton, Missouri 63105.

FOR RESPONDENTS: Kelly L. Camilleri, 9717 Landmark Parkway Drive, Suite 200, St. Louis, Missouri 63127, Alexis L. Silsbe, 1200 Market St., City Hall, Room 314, St. Louis, Missouri 63103.

John P. Torbitzky, J.

Introduction

Officer Zachariah Foltz appeals from the circuit court's judgment affirming the Civil Service Commission's decision terminating his employment with the St. Louis Metropolitan Police Department. Officer Foltz challenges the manner in which he was terminated, arguing the Department failed to provide him an Employee Misconduct Report ("EMR") prior to his pre-termination hearing, which is mandated by the Department's Police Manual. Further, Officer Foltz claims he was dismissed unlawfully for refusing to follow an order in violation of his Fifth Amendment right against self-incrimination and the Department's Police Manual. Finally, Officer Foltz argues that any other violations of the Department's Police Manual were insufficient to warrant his termination.

This Court finds Officer Foltz was provided due process in the termination proceeding. But, the Department improperly forced Officer Foltz to choose between his employment and his Fifth Amendment rights in violation of Garrity v. New Jersey , 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) and Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968). Accordingly, this Court reverses and remands for the Commission to reconsider its decision in light of this opinion.

Background

On August 4, 2018, investigators at the Department's Internal Affairs Division ("IAD") interviewed the parents of a twelve-year-old girl who alleged their child had a sexual relationship with Officer SK.¹ According to the child's diary, she had a sexual encounter with Officer SK when he picked her up in his patrol car. As a result of these allegations, the Department instigated two investigations, one internal, led by IAD, and one criminal. Based upon the Department's policy, these investigations remained on separate but parallel tracks. Information from the criminal investigation could be shared with the internal investigator, but information from the internal investigation could not be shared with the criminal investigator.

The Department sought to interview Officer Foltz as a witness in the internal investigation because he was in the patrol car with Officer SK and the child. Officer Foltz came to IAD's interview with his counsel. Before the interview, IAD's commanding officer, Lieutenant WB, informed Officer Foltz's counsel that Officer Foltz was not the subject of the investigation but was a potential witness in the internal and criminal investigations of Officer SK. During this conversation, Officer Foltz's counsel expressed concern about what the circuit attorney—who had the ultimate authority to decide whether to charge someone with a crime—might do with any statements Officer Foltz made in the criminal investigation. Officer Foltz and his counsel had only limited information on the allegations at the time because Officer Foltz was the first witness IAD interviewed after talking with the complainants.

Officer Foltz's interview began with both an internal investigator and a criminal investigator in the interview room. Counsel was present during the entire interview, which was recorded on video and audio. The internal investigator confirmed that Officer Foltz had been given an Advice of Rights form, which informed Officer Foltz:

[Y]ou are being questioned as part of an official investigation of the Police Department. You will be asked questions related and specifically directed to the performance of your official duties or fitness for office. You are entitled to all of the rights and privileges guaranteed by the laws and the Constitution of this State and the Constitution of the United States, including the right not to be compelled to incriminate yourself .... [I]f you refuse to testify or to answer questions relating to the performance of your official duties or fitness for duty, you will be subject to departmental charges which could result in your dismissal from the Police Department. If you do answer, these statements may be used against you in relation to subsequent departmental charges, but not in any subsequent criminal proceedings against you.

Both Officer Foltz and the internal investigator signed the form, which contained a handwritten IAD file number. IAD calls this form a " Garrity warning" and calls statements made to an internal investigator pursuant to this warning " Garrity statements," referring to Garrity v. New Jersey . Officer Foltz confirmed that his counsel explained the Advice of Rights form to him, he understood it, and he had no questions.

The internal investigator began to read Officer Foltz his rights under Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which is typical at the outset of an interview in a criminal investigation. The criminal investigator interrupted and explained there was no need to read Officer Foltz his Miranda rights because Officer Foltz was not going to make any statements in the criminal investigation. The criminal investigator asked whether Officer Foltz understood that declining to make a statement in the criminal investigation could result in discipline. Officer Foltz said he understood, but did not want to make a statement to the criminal investigator. The criminal investigator left the room.

The internal investigator then questioned Officer Foltz regarding the allegations of "inappropriate acts" between Officer SK and the child that was in their patrol car the day before. Officer Foltz answered all of the internal investigator's questions. At the conclusion of the internal investigator's questioning, the internal investigator conferred with Lieutenant WB.

Lieutenant WB told the internal investigator to return to the interview room with the criminal investigator and order Officer Foltz to make a statement to the criminal investigator. Both investigators followed Lieutenant WB's directions and relayed the order. Officer Foltz conferred privately with his counsel and again declined to make a statement in the criminal investigation.

After Officer Foltz refused to give a statement to the criminal investigator, Lieutenant WB ordered he be transferred from the patrol division to the communications division. Because Officer Foltz would no longer be on patrol, another officer immediately went to take possession of Officer Foltz's patrol car and discovered that Officer Foltz had left that car running with the keys in the ignition and the doors locked for the entire three hours he was being interviewed.

Subsequently, IAD interviewed Officer Foltz regarding his running patrol car.

Officer Foltz also sent Lieutenant WB an email accusing Lieutenant WB of attempting to push him out of the department because he would not "lick your boot" and sabotaging his attempts to get another job. IAD also interviewed Officer Foltz about the email. Officer Foltz admitted the email was disrespectful, but stated he was frustrated that at the initial interview regarding Officer SK's conduct, Lieutenant WB gave an order directly violating his rights and continued to subject him to discipline. Officer Foltz stated he did not believe he had to follow an incorrect order of a superior officer.

The internal investigator prepared an Administrative Reports Transmittal Sheet ("ARTS"), which summarized the investigation, recommended discipline, and was signed by Lieutenant WB. The ARTS detailed five allegations of misconduct against Officer Foltz that arose or were discovered during the internal investigation. The ARTS found: (1) Officer Foltz refused to provide a witness statement to the criminal investigator voluntarily; (2) Officer Foltz refused to provide a witness statement to the criminal investigator after being ordered to do so by his superior; (3) Officer Foltz violated the Department's special orders by leaving his patrol car running and unattended for over three hours; (4) Officer Foltz and Officer SK violated the Department's special orders by moving their patrol car more than one block without advising the dispatcher; and (5) Officer Foltz sent a disrespectful email to Lieutenant WB in violation of the Police Manual. The ARTS recommended Officer Foltz be terminated.

On April 1, 2019, a document titled "Notice of Recommended Termination and Pre-Termination Review" was hand-delivered to Officer Foltz. A copy of the ARTS was attached to the notice, along with a two-page document stating that "dismissal was being considered for the following reasons" and setting out each of the five grounds delineated in the ARTS. The notice specified that the first two grounds—refusing to cooperate and failing to obey an order—were each independent and separate grounds for termination. The notice provided a time and date for the pre-termination review at IAD. The notice explained that, before the review, Officer Foltz was allowed to "review the evidence against" him and, at the review, he would be allowed to "respond to the charge(s), and/or present any mitigating factors or circumstances." Officer Foltz signed the notice.

On April 4, 2019, Officer Foltz and his attorney attended the review at IAD. Officer Foltz confirmed he received a copy of the ARTS. The allegations therein were read aloud, after which Officer Foltz submitted a detailed written response to each allegation. Officer Foltz did not deny the allegations regarding leaving the patrol car running, moving the car without notifying dispatch, or sending...