The Missouri Supreme Court listened to arguments last week concerning a state employee who says he wasn’t allowed to defend himself when he was fired.
In 2013, Grayland Nowden was terminated as an inspector for the Alcohol and Tobacco Division after an investigation revealed he’d been working as a bookkeeper for a liquor store.
According to court documents filed by the state Department of Public Safety, which oversees the Alcohol and Tobacco Division, the investigation into Nowden began after he took his service vehicle to a state-run garage for repairs.
The documents say Nowden came under scrutiny when he left bullets, condoms, and several items containing knife blades in plain view in his vehicle at the garage, which employs state prisoners.
Further inspection of his vehicle turned up three arrest reports he never filed and confiscated evidence, marked and sealed in an evidence bag, that he never logged. The documents also say it was discovered that Nowden was a party to a lawsuit that he had never disclosed, which is contrary to Department of Public Safety Policy.
But most importantly, it became known through the investigation that Nowden was substantially involved with a liquor business. The search of his car uncovered receipts for thousands of dollars in purchases for A&D Mini Mart, a business he’d inspected less than three months earlier as an agent of the Liquor and Tobacco Division.
Nowden told investigators that he worked as a bookkeeper for the store while simultaneously working for the Division.
The state claims Nowden was given a copy of the investigation of his conduct five days before he was fired in September 2013, and was then invited to participate in a hearing where he could submit a written response to the findings in an attempt to refute them.
According to the state, Nowden never took advantage of the hearing and didn’t refute the findings against him. The Alcohol and Tobacco Division director issued a termination letter to Nowden on October 1, 2013.
The state says the first paragraph of the letter stated that Nowden had a right to appeal as set forth in Department of Public Safety policy. The policy allows seven days for such an appeal to be submitted. The state acknowledges he filed one but claims he did so two days after the deadline.
Nowden filed a complaint with the administrative hearing commission, a body which functions as an independent hearing officer for the state. But the commission determined it lacked jurisdiction over law enforcement agencies such as the Alcohol and Tobacco Division.
Nowden then filed a lawsuit in mid-Missouri’s Cole County Circuit Court. The court granted judgment in favor of the Division, concluding it lacks the authority to proceed with the case because Nowden had failed to exhaust options available to defend himself, or as the court said, he failed to exhaust his “administrative remedies”.
The Western District Court of Appeals in Kansas City then accepted an application for transfer of the case. The appeals court said that under the Department of Public Safety’s policy, the employee has no stated right to a hearing.
Such proceedings are optional and only take place at the discretion of the department director. Even though Nowden’s termination letter offered an option for a hearing, the appeals court noted that any conclusions drawn from those hearings are non-binding.
The appeals court said the procedure doesn’t provide for any type of hearing that qualifies as a contested case. In a contested case, legal rights and privileges are determined, by law, after a hearing.
The Western District bench said the lower circuit court was required to review Nowden’s termination as an uncontested case, in which it would determine whether the Department’s actions were unlawful or unreasonable.
Both sides presented arguments before the Supreme Court Tuesday. Nowden’s attorney, David Moen, said the circuit court erred in determining Nowden failed to exhaust his administrative remedies.
“The Department terminated Nowden’s employment without a hearing and without a right to a hearing, said Moen. “And therefore, by its definition, that procedure, that process, would be a non-contested case. And a non-contested case is not subject to a requirement to exhaust any administrative remedy.”
Attorney Joshua Divine argued for the Department of Public Safety’s Alcohol and Tobacco Division. He said it was clear that the Department had no choice but to terminate Nowden because he violated state law.
“It’s uncontested that he admitted that he worked at A & D Mini Mart, which was a covered business, Divine said. “And chapter 311 expressly states that a person who is an employee or agent of a covered business must be fired immediately.”
Moen finished the high court proceeding by saying Nowden could have presented compelling evidence in his defense, had he been granted due process.
“Had he received due process, he could have explained the surrounding circumstances,” Moen said. “(He could have explained) why he, a special agent for 23 years, was very aware of what his obligations were, and felt that he had not crossed the line in helping a family member who had a liquor store. And certainly, the Department Director could have taken into consideration his many years of service.”
The Supreme Court, as is its practice, did not hand down a decision after the hearing, but will likely offer one in the upcoming weeks.