Spurlock v. City of Columbia

670 S.W.3d 151

Colleen SPURLOCK, Appellant,

v.CITY OF COLUMBIA, Missouri, Respondent.

WD 85580

Missouri Court of Appeals, Western District.

Opinion filed: April 18, 2023

Motion for Rehearing and/or Transfer to Supreme Court Denied May 30, 2023

Application for Transfer Denied July 20, 2023

John A. Hirth, Columbia, MO, for Appellant.

Mollie G. Mohan, St. Louis, MO, for Respondent.

Division Three: Janet Sutton, Presiding Judge, Cynthia L. Martin, Judge and Edward R. Ardini, Jr., Judge

EDWARD R. ARDINI, JR., JUDGE

Colleen Spurlock ("Spurlock") appeals from the judgment of the Circuit Court of Boone County dismissing her petition against her former employer, the City of Columbia, Missouri, ("City") in which she seeks relief under Missouri's public-employee whistleblower statute, section 105.055, RSMo.¹ We reverse and remand for further proceedings.

Factual and Procedural Background²

Spurlock began working for the City as a management fellow beginning in July 2020. Spurlock's domestic partner also worked for the City. On June 21, 2021, a city council meeting was held where the council was expected to consider an amendment to a city ordinance that capped raises for city employees at ten percent per year. Spurlock attended the meeting as part of her job duties. Her partner and several employees from the City's IT and finance departments also attended the meeting in support of amending the pay raise ordinance. One of the IT employees spoke at the meeting in favor of changing the ordinance, but no amendment to the ordinance was proposed. It had been Spurlock's understanding that a proposed amendment had been drafted and was ready for presentation so, following the meeting, Spurlock inquired of the assistant city manager why the proposed amendment had not been offered at the meeting. The assistant city manager indicated that the city manager did not wish to move forward with the amendment at that time.

City Manager John Glascock ("City Manager"), who was on vacation when the council meeting occurred, discovered upon his return that the employees had attended the meeting in support of changing the ordinance. He viewed the employees’ attendance at the meeting as a betrayal of his leadership. In response, City Manager sent a message to the city finance director criticizing the employees’ actions and rescinding his prior approval for several new positions in the IT department. In the same time frame, City Manager denied Spurlock's partner permission to attend a conference in Portland, Oregon, with several other city employees, including Spurlock, citing a city policy prohibiting romantic partners from traveling together on city business.

Spurlock reported to the human resources director that City Manager had denied her partner's request to attend the conference relying on the aforementioned city policy. The human resources director informed Spurlock that the city had no such policy. Two days later, City Manager placed Spurlock on indefinite administrative leave. Spurlock also learned that her partner and the other employees who had attended the city council meeting had been placed on administrative leave as well. Spurlock's partner was told by City Manager that the suspension was based on insubordination for attending the June 21 council meeting.

On July 22, Spurlock met with City Manager about her suspension. City Manager stated that she was on administrative leave because she had criticized the assistant city manager for not presenting an amendment to the pay-raise ordinance at the June 21 council meeting and because she had "inserted [herself] into a decision [City Manager] made about sending [her partner] to Portland and you all went over to see [the human resources director] about it together[.]" Spurlock explained to City Manager that there existed no city policy prohibiting romantically involved employees from traveling together, to which City Manager stated "[t]hat is not your decision. I approve all travel." Spurlock responded by telling City Manager, "[t]hat is an abuse of power if it is not in the administrative policies." At that point, City Manager offered Spurlock "two choices: you can either voluntarily resign with two weeks’ salary or I'm releasing you Friday at 5:00 p.m." Spurlock submitted her resignation the following morning.

Spurlock brought the present action against the City seeking relief under Missouri's public-employee whistleblower statute, section 105.055, RSMo. The City filed a Motion to Dismiss, alleging that Spurlock failed to state a claim under the statute, arguing that she did not make a "disclosure" within the meaning of the statute; she did not report a covered action under the statute; and she did not suffer a "disciplinary action." The City also alleged that the whistleblower statute is unconstitutionally vague, arguing that it "does not sufficiently place defendants on notice of what conduct is statutorily prohibited."

The trial court dismissed the suit with prejudice without specifying which of the asserted grounds provided the basis for the dismissal. Spurlock appeals.

Standard of Review

"We review the trial court's decision to grant a motion to dismiss de novo. " Hartman v. Logan , 602 S.W.3d 827, 835 (Mo. App. W.D. 2020) (citing Tuttle v. Dobbs Tire & Auto Ctrs., Inc. , 590 S.W.3d 307, 310 (Mo. banc 2019) ). "Where, as here, the trial court did not specify the basis for its decision to grant the Motion to Dismiss, we presume the dismissal was on a basis set forth in the motion to dismiss[.]" Id. (citing Tuttle , 590 S.W.3d at 310 ). "[I]f the dismissal cannot be sustained on any of the grounds alleged in the motion, we must reverse." Duffner v. City of St. Peters , 482 S.W.3d 811, 816 (Mo. App. E.D. 2016) (citing In re Estate of Austin , 389 S.W.3d 168, 171 (Mo. banc 2013) ).

" ‘A motion to dismiss for failure to state a claim on which relief can be granted is solely a test of the adequacy of the petition.’ " Hartman , 602 S.W.3d at 835 (quoting Tuttle , 590 S.W.3d at 310 ). " ‘We review the petition to determine if the plaintiff has alleged facts that meet the elements of a recognized cause of action[.]’ " Id. at 835-36 (quoting McDonald v. Chamber of Com. of Independence , 581 S.W.3d 110, 114 (Mo. App. W.D. 2019) ) (additional quotation and citation omitted). "Missouri is a ‘fact-pleading state[;]’ " but the plaintiff must only plead ultimate facts, not evidentiary facts. Richest , 643 S.W.3d at 614 (quoting R.M.A. by Appleberry v. Blue Springs R-IV Sch. Dist. , 568 S.W.3d 420, 425 (Mo. banc 2019) ). " ‘Ultimate facts are those the jury must find to return a verdict for the plaintiff.’ " Id. (quoting R.M.A. by Appleberry , 568 S.W.3d at 425 ).

Discussion

Spurlock raises a single point on appeal alleging the trial court erred in dismissing her claim, arguing that she pleaded facts sufficient to state a claim under section 105.055, RSMo, and that the statute is not unconstitutionally vague.

Section 105.055, "protects public employees by prohibiting any supervisor ... of any public employer from taking ‘any disciplinary action whatsoever against a public employee for the disclosure of ... information which the employee reasonably believes evidences’ a violation of any law, rule, or regulation, or other wrongful activity’ " such as mismanagement or abuse of authority. Richest , 643 S.W.3d at 613 (quoting § 105.055.3(1)(b), RSMo ). "Simply put, a public employer cannot retaliate against a public employee for reporting certain types of wrongdoing." Id. In order to prove a claim under section 105.055, RSMo, "[a] public employee shall show by clear and convincing evidence that he or she or a person acting on his or her behalf has reported or was about to report, verbally or in writing, a prohibited activity or a suspected prohibited activity." § 105.055.7(3), RSMo.

"When interpreting section 105.055, our primary rule is ‘to give effect to legislative intent as reflected in the plain language of the statute at issue.’ " Richest , 643 S.W.3d at 614 (quoting Parktown Imp., Inc. v. Audi of Am., Inc. , 278 S.W.3d 670, 672 (Mo. banc 2009) ). " ‘If the intent of the legislature is clear and unambiguous, by giving the language in the statute its plain and ordinary meaning, then we are bound by that intent and cannot resort to any statutory construction in interpreting the statute.’ " Hudson v. O'Brien , 449 S.W.3d 87, 91 (Mo. App. W.D. 2014) (quoting State ex rel. Union Elec. Co. v. Pub. Serv. Comm'n , 399 S.W.3d 467, 479-80 (Mo. App. W.D. 2013) ). " ‘Absent a statutory definition, words used in statutes are given their plain and ordinary meaning with help, as needed, from the dictionary.’ " Id. at 92 (quoting Balloons Over the Rainbow, Inc. v. Dir. of Revenue , 427 S.W.3d 815, 825 (Mo. banc 2014) ).

City's Constitutional Challenge to section 105.055, RSMo³

The City claims that section 105.055, RSMo, is unconstitutionally vague. Spurlock argues that the City lacks standing to bring such a challenge.⁴ We agree.

"The doctrine of vagueness stems from the due process clause." Jackson Cnty. v. State , 207 S.W.3d 608, 614 (Mo. banc 2006). It is well-settled that "[p]olitical subdivisions, such as [cities], are not ‘persons’ within the protection of the due process clause of the United States Constitution." Id. As such, cities cannot bring a vagueness challenge to statutes. See Jackson Cnty. , 207 S.W.3d at 614 (finding that Jackson County was not a person under the due process clause and thus could not bring a vagueness challenge to a statute); City of Chesterfield v. Dir. of Revenue , 811 S.W.2d 375, 377 (Mo. banc 1991) (stating that the city had no "personal" due process or equal protection rights and can thus not meet the standing requirement to challenge the constitutionality of a statute); State ex rel. Brentwood Sch. Dist. v. State Tax Comm'n , 589 S.W.2d 613, 615 (Mo. 1979) (holding that "creatures of the state established to perform governmental functions[ ] are not persons within the protections of the due...