CITY OF COLUMBIA, MISSOURI,
Appellant,
No. WD78460
v.
ROB SANDERS,
Respondent/Aggrieved Party.
APPENDIX TO BRIEF OF "APPELLANT"
Appeal from the Decision of the City Manager of Columbia, Missouri
After Judicial Review by the Honorable Patricia S. Joyce, Circuit Judge, Cole County
#57393
Scott T. Jansen
ARMSTRONG TEASDALE LLP
3405 W. Truman Blvd., Ste. 210
Jefferson City, MO 65109
573-636-8394 FAX 573-636-8495
ATTORNEY FOR RESPONDENT
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - July 16, 2015 - 03:16 PM
IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
Page Number
Document
Order and Final Judgement
A01
City Manager's Findings of Fact, Conclusions of Law, and
Final Determination
A02
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Electronically Filed - WESTERN DISTRICT CT OF APPEALS - July 16, 2015 - 03:16 PM
INDEX TO APPENDIX
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - July 16, 2015 - 03:16 PM
IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI
Rob Sanders,
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
City of Columbia, Missouri,
Defendant.
Case No: 14AC-CC00040
ORDER AND FINAL JUDGMENT
This matter comes before the Court on Plaintiff's Petition for Judicial Review of
Administrative Decision pursuant to section 536.100 RSMo. The Court has reviewed the
pleadings, the underlying record and the briefs of the parties, and has heard the arguments of
counsel. The Court hereby REVERSES the decision of the City Manager of the City of
Columbia to terminate Plaintiff Rob Sanders from his employment with the City of Columbia
Police Department. Such decision is unsupported by competent and substantial evidence; is
unauthorized by law; is arbitrary, capricious and unreasonable; and is an abuse of discretion.
Defendant is ordered to immediately reinstate Plaintiff Rob Sanders to his position of
employment, as if he had never been terminated on September 21, 2011; to compensate him for
all pay that would have accrued between September 21, 2011 and the date of reinstatement,
including any and all cost-of-living or other salary increases that would have occurred, regardless
of how denominated, and including nine percent simple interest on all such pay, calculated per
annum; and to adjust his years-of-service and benefit vesting dates as if he had never been
terminated on September 21, 2011. Costs taxed to Defendant.
The relief ordered is hereby stayed pending appeal by Defendant.
- 2-
Hon. Patricia Joyce
it Judge
$
Date
A01
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3
IN THE MATTER OF ROBERT SANDERS
GRIEVANCE NO. 13-CP0A-11
7!
1. 'J 131 ?:I1 S1 0
City Manatees Findings of Fact, Conclusions of Law
and Final Determination
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I, Mike Matthes, City Manager for the City of Columbia Missouri, after
reviewing the written transcript of the hearing on Robert Sanders' grievance held
by the Personnel Advisory Board ("Advisory Board") on Friday, November 15,
2013, and all exhibits submitted to the Advisory Board at the hearing, having
considered the argument of the grievant and after considering the
recommendation of the Advisory Board, hereby make the following Findings of
Fact, Conclusions of Law and Final_Determination.
I. FINDINGS OF FACT
1.
Officer Robert Sanders ("Sanders") was a Columbia Police Officer
and a permanent employee, with approximately 17 Y2 years of
service to the City, who was instructed and has knowledge of the
rules, policies and procedures of the Columbia Police Department.
2.
The Chief of Police and department head of the Columbia Police
Department was Ken Burton ("Chief Burton") who has general
supervision and control of the department, including the
enforcement of discipline among the members thereof, and the
instruction of the members in their duties. Chief Burton has been in
law enforcement for 32 years, and has been a supervisor,
commander or Chief for 26 of those years. Chief Burton has had to
review use of force throughout his career as a supervisor,
commander or Chief.
Kenneth Baker ("Baker") was arrested by Columbia Police officers
for an outstanding arrest warrant for child non-support on August
15, 2011.
4.
At the time of the arrest Baker resisted arrest and pepper spray
was used to subdue him.
5.
Baker was visibly intoxicated at the time of his arrest.
Baker was under disabling effects of pepper spray; including his
vision that ranged from near complete blindness to severely
impaired vision.
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8.
Inside the police parking garage Sanders helped Baker to use
water from a hose to help alleviate the effects of the pepper spray.
Adc1V _71010 IONASIG N aalSAM
Sanders took over control of Baker after Baker was transported
back to the Columbia Police Department by another officer.
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - July 16, 2015 - 03:16 PM
7,
The water and assistance had a calming effect on Baker who
became compliant with the officers.
10.
Numerous video (some which includes audio) show what anspires
next.
Videos of events show what happened.
11.
Videos of the Incident are not disputed and were stipulated into
evidence.
12.
The videos accurately portray the events of that night and are not
tainted by friendship, poor memory, lack of objectivity, bias, or self
serving statements.
13.
The only audio available Is from the video in the booking room
located down the hall from the holding cell In which Baker was
locked.
14.
Comparing the videos to Sanders' statements, there are conflicts
and inconsistencies showing Sanders lacks truthfulness.
15.
Baker has difficulty with physical navigation and Is led through the
station slowly and placed In the holding cell alone, requiring
assistance to find the bench.
16.
Sanders and the other officer tell Baker they are going to go get
Baker some decontamination wipes and Baker calmly watts.
17.
Less than one minute later, the officers return to the holding cell
and Sanders tells Baker that they cannot find any decontamination
wipes.
16.
The sink in Baker's cell was not functioning appropriately.
19, Baker asks for water and is told none Is available. Baker was told
by Sanders that he could use the toilet water.
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21.
Sanders did not offer any alternatives other than the toilet water.
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22.
Baker became agitated after Sanders told him to use the toilet
water to cleanse his face.
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23.
The holding cell has no way to communicate or get the attention of
anyone as there is no intercom or buzzer.
0
24.
Baker at this point is restrained behind a locked cell door.
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25.
The only way for a prisoner to get the officers attention for help and
water Is to yell and knock on the door.
28.
Baker yells and slaps the door with his hand(s) four (4) times, s he
does he Is demanding and cursing for water.
27.
Sanders and two officers return to the holding cell to tell Baker to
stop hitting the door and yelling. Instead of providing water to calm
Baker, Sanders threatens Baker he will handcuff Baker to the ring
on the floor if he does not stop.
28.
Baker continues to request water.
29.
There Is no evidence Baker Is resisting arrest or trying to escape.
30.
There is no evidence Baker Is a threat to Sanders or anyone else.
31.
There is no evidence Baker Is trying to hurt himself.
32.
There is no evidence Baker intended to break the lock or the door.
33.
Baker is intoxicated, visually Impaired and under the effects of the
pepper spray,
34.
After telling Baker to stop hitting on the door, Sanders and two
officers hide in the hallway outside the locked cell to waft for Baker
to hit the door again.
35.
Baker paces in the holding cell then tries to get the attention of the
officers again by slapping the door with his hand one (1) more time.
r
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20, When Sanders opened the cell door to tell Baker there were no
decontamination wipes, Baker was not physically aggressive
toward Sanders or any of the officers.
Sanders entered the holding cell and violently shoved Baker before
restraining Baker on the ring In the cell.
38.
The force of the shove by Sanders is so great it caused Baker's
feet to leave the ground as Baker's body was launched backwards
Into the concrete block wall in the back of the cell.
39.
The force used by Sanders caused the sound of Baker's body
striking the wall to reverberate through the walls and be heard on
the audio from the booking room.
40.
Sanders caused serious physical Injury to Baker,
41.
Sanders handcuffed Baker to the floor and left Baker alone until
Sanders notices blood on his own arm.
42.
Sanders returns to the holding cell to briefly check Baker before
returning to the booking room to clean the blood off his own arm.
43.
Another officer calls the station master to request medical aid.
44.
Baker is left alone again for nearly twelve (12) minutes bleeding
and handcuffed to the ring near the floor of the cell.
45.
Baker was later transported to the hospital for injuries he sustained
as a result of Sanders actions.
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W ES TE RN DISTRI CTCT OFAPP EAL S- A pril1 7 ,201 5
37.
Sanders force was unreasonable.
46.
The force used by Sanders to violently shove Baker into the wall of
the holding cell at the Columbia Police Department was
unreasonable.
47.
Sanders force was also gratuitous force and unreasonable because
Baker was not resisting, not trying to escape, and was not a threat
to Sanders or others.
Grievance #13-CP0A-11
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38. Baker displayed no resistance or aggression toward Sanders or
any other officer while In the holding cell.
Sl O N 27HI SAM P ally Al i e*J 0-1 1008
a. Baker was in a locked holding cell and posed no Immediate
threat to the safety of Sanders, officers or others. This factor
weighs that the force was unreasonable.
R ICT Cl OF A PP EAL S Apri l 17 ,201 5
b. Baker was not actively resisting arrest or attempting to evade
arrest by flight This factor weighs that the force was
unreasonable.
c, Baker was arrested for an outstanding warrant for child nonsupport. This factor weighs that the force was unreasonable.
d. There were three law enforcement officers present and Baker
was the only prisoner. This factor weighs that the force was
unreasonable.
e. Sanders was muscular and physically fit. The other officers
were also physically fit. Baker had burning eyes, was semiblinded, and Intoxicated with around a 0.20 blood alcohol
content. This factor weighs that the force was unreasonable.
f. Baker's mental state was unknown, other than it appears he
was drunk and In pain under the effects of pepper spray. Baker
was compliant when he received water in the parking garage.
This factor weighs that the force was unreasonable.
g. Baker had been in the holding cell for less than eight (8)
minutes and had slapped the door five (5) times before Sanders
decided to handcuff Baker to the ring. The use of force when
Sanders entered the holding cell to handcuff Baker to the ring
was instantaneous and there was no protracted struggle with
Baker. This factor weighs that the force was unreasonable.
h. Baker was visibly intoxicated, This is a possible factor
weighting the force was reasonable, but not convincing since
Baker was compliant in the interim toward the officers, without
the need to use physical force.
I. The officers did not have knowledge of any mental or psychiatric
history of Baker. This factor bears no weight.
. Baker had no weapon. This factor weighs that the force was
unreasonable.
Grievance #13-CP0A-11
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48. Sanders use of force under the objective reasonableness standard
considering the totality of the circumstances was unreasonable.
A06
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I: No Innocent bystanders were present. This factor weighs that
the force was unreasonable.
m. The reasonably likely effects of violently shoving an Intoxicated,
partially incapacitated prisoner hard enough to lift him from his
feet in a small concrete block holding cell is that the prisoner will
get hurt. This factor weighs that the force was unreasonable.
n. Baker had been completely restrained In a locked holding cell
until Sanders opened the door to handcuff Baker to the ring.
This factor weighs that the force was unreasonable.
o. Baker shows no resistance or physical aggression
Sanders or any other person at the time of the violent
This factor weighs that the force was unreasonable.
49.
The amount of force Sanders used was not reasonably necessary
and, in fact, excessive to achieve the stated purpose.
50.
There was not a rapidly evolving split second decision required
regarding the amount of force necessary as officer Sanders had all
the time needed to formulate a plan as Baker was safely locked
away in the holding cell.
51.
Considering the totality of the circumstances of all these factors
Sanders level and use of force in this case was unreasonable and
excessive.
Sanders' force was unnecessary.
52.
Baker was In a locked cell. After a while Baker began yelling,
asking for water and trying to get the attention of the officers.
53.
Baker was not trying to break the lock of the cell.
54.
Baker was not trying to Injure himself.
55.
Baker requested water and Sanders offered no explanation why he
chose not to give Baker water.
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WEST ER N DI STRI CTCT O F APPE AL S- A pril 17 , 2015
k. Baker had a history of violence during his initial arrest at the
house where he was found steeping. This is a possible factor
weighting the force was reasonable; but not convincing since
Baker was compliant in the interim toward the officers, without
the need to use physical force.
57.
There was no Immediacy requiring Sanders to use violent force to
restrain Baker on the ring in the back of the cell.
58.
Baker exhibited no physical resistance.
59.
The level of force used by Sanders was unnecessary.
TE RNDI ST RI CT CTOrAP PEALS
Baker was not a danger to himself or others.
Sanders force was retaliatory.
During his initial arrest, Baker made verbal threats in the officers
and resisted arrest.
61.
After shoving Baker and handcuffing Baker to the ring in the back of
the cell, Sanders said, "Let's Just say he lost round two... Yeah.
he's gonna have to go to the hospital".
62.
The way Sanders hid In the hallway, combined with the speed and
ferbcity of the shove without any initiating physical aggression from
Baker, and the comments Sanders made afterward in the booking
room Indicate a revengeful intent.
Sanders force was retaliatory.
Sanders treatment of the prisoner was both abusive and improper.
64.
Sanders treatment of a prisoner, Kenneth Baker, was abusive and
improper.
65.
Sanders violently shoved the prisoner in the holding cell which
caused the prisoner to leave the floor and fly backwards into the
cell wall. This was abusive and improper.
66.
Sanders left the Injured prisoner lying on the floor for approximately
twelve (12) minutes in the cell. This was abusive and Improper.
67, Sanders used gratuitous force on the prisoner. This was abusive
and Improper.
68. Sanders took away the toilet paper. This was abusive and
improper.
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56.
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89. Sanders telling Baker he could use toilet water to "cleanse his face
escalated the situation. This was abusive and Improper.
After discovering blood on his own arm, Sanders returned to the
holding cell to briefly examine Baker.
71.
Sanders knew Baker was seriously injured and needed to go to the
hospital.
72,
Sanders provided for medical attention for Baker by asking another
officer to call the front desk for medical personnel. Sanders made
no other attempt to provide basic first aid or medical attention while
awaiting the arrival of medical personnel.
73,
Baker was in an unknown medical state and Sanders left Baker
handcuffed to the ring and lying on the floor for twelve (12) minutes.
Sanders did not physically observe Baker while waiting for medics
to arrive to ensure Baker was safe.
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70.
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Sanders obtained medical attention to assist Baker.
Notice.
•
74.
Sanders received notice of the investigation and the possible
ponciesiordinance violations Included In the scope of the
investigation.
75.
On August 23, 2011, Sanders was Informed of a review of the force
used against Baker in a notification of Investigation.
76.
On August 24, 2011, an amended notification of investigation
added the violation of General Order ('GO") 103.01 Code of
Conduct Section 32 Duty to Use Reasonable Force.
On August 28 2011, an amended notification of investigation added
the violation of City of Columbia Code of Ordinances 19-225
Guidelines for Corrective Action.
78.
On August 31, 2011, an amended notification of Investigation
added a violation of GO 103.06 Use of Force Section 8 Medical
Attention.
79.
The amendments were in succession as more events came to light
in the case.
Grievance #13-CP0A-11
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0.)
Sanders had all the investigative notifications and his attorney Scott
Jansen was present when he was interviewed by internal affairs on
September 7th.
81,
Internal affairs made a recommendation that all three allegations
were unfounded.
82.
The role of internal affairs is limited to make recommendations and
the role of the Chief of Police is to either accept or reject the
recommendation and render discipline the Chief deems Is
appropriate.
83.
The specific recommendations of various people in the chain of
command were in dispute in this case and the testimony was
inconsistent.
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W E ST ERN DI STR ICTGIO FAPP EALS
80.
85.
On September 19, 2011, Sanders was sent written Notification of
Findings.
86.
The Notification of Findings listed three Allegations and Findings, a
Recommended Range of Punishment, a Summary of Findings and
the process for Sanders to meet with and present evidence to the
Chief of Police before any final decisions are made.
87.
The first Allegation of the violation of G.O. 103.01 Code of Conduct
Section 32 Duty to Use Reasonable Force. Finding Sustained.
88.
The second Allegation of the violation of G,O. 103.06 Use of Force
Section 8 Medical Attention. Finding Sustained.
89.
The third Allegation of the violation of City of Columbia Ordinance
19-225, Guidelines for Corrective Action, Abusive or improper
treatment of a prisoner. Finding Sustained.
90.
The Recommended Range of Punishment was Suspension (120
hours) to termination.
91.
The written summary gave a basic explanation of the facts that
supported the allegations. That the force used against Kenneth
Baker on August 15, 2011 in a holding cell at the Columbia Police
department was unreasonable. That appropriate medical attention
was not provided after the force. That the circumstances of this
event resulted In the abuse and improper treatment of a prisoner.
Grievance #13-CP0A-11
Page 9 of 24
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84, The Chief of Police Is not bound by the recommendation of anyone
in internal affairs or the chain of command.
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93.
Sanders requested and was given a copy of the Internal Affairs
recommendations.
94.
Sanders, with his attorney present, was given an opportunity to
refute the reasons and present evidence In person to Chief Burton.
95.
At the September 21, 2011 meeting Chief Burton discussed with
Sanders, Sanders' side of the story,
RN DI STR I CTCT OF APP E
Sanders was given written notice of the reasons and the facts that
supported his potential suspension or discharge in this case,
Sanders attorney was present.
INVy I 0-we
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a. Sanders was neither regretful nor remorseful. Sanders stated he
did nothing wrong and in no way acknowledged or accepted
responsibility for his actions.
b. Sanders attitude and demeanor was consistent with his prior
disciplinary history. in the past when disciplined, Sanders never
did anything wrong or it was always somebody else's fault.
c. Had Sanders been accountable or remorseful for the force used
to injure Baker, Chief Burton would have considered a
suspension.
98. Chief Burton made his final decision to terminate Sanders only after
meeting with Sanders, considering recommendations made,
Sanders past service, disciplinary history, and progressive
discipline Including a recent five day suspension.
97.
At the end of the meeting Chief Burton determined that Sanders'
conduct was a violation of ordinance and policy and merited
termination. Chief Burton verbally explained to Sanders why he
was terminated.
98.
The Police Chief would have fired Sanders for any of the three
allegations each serious enough to warrant Sanders termination.
Grievance.
99.
Sanders filed a written grievance to the verbal termination
September 30, 2011, prior to receiving to written reasons for
discharge and his grievance was accepted as timely filed.
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92.
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WESTE RN DI ST RI CT CT OF AP P EALS- A pril 1 7 , 2 015
101. Sanders refused to sign the notice of termination on October 12,
2011.
102. The written notice cited and repeated the relevant sections Chief
Burton determined that Sanders had been given notice of and
violated.
103. in the notice, Chief Burton stated In writing the reasons and the
pertinent details supporting the violations:
104. On October 14, 2011, Chief Burton timely reviewed and responded
to Sanders grievance and affirmed his decision to terminate
Sanders.
105. In response to the grievance, Chief Burton stated that internal
affairs does not have the authority to exonerate an employee and
can only make recommendations.
106. Chief Burton stated that the amount of force used by Sanders was
not objectively reasonable under the circumstances.
107. Chief Burton stated the assault on Mr. Baker was unprovoked.
108. Chief Burton further stated that Sanders left Baker alone and
bleeding form the back of his head on the holding cell floor,
handcuffed to the wall,
109. On November 1, 2011, Sanders then continued his grievance to the
Human Resources Director.
110. On November 16, 2011, Human Resources Director Margrace
Buckler ("Buckler) responded to the grievance.
111. Buckler reviewed the grievance, the Internal Affairs investigation
materials, Including the videos of the Incident and Chief Burton's
findings.
112. Buckler reviewed Chief Burton's response to the grievance, the
' grievance appeal to Buckler as the Human Resources Director,
Sanders' personnel file, and the City of Columbia personnel policies
found In Chapter 19 of the City of Columbia Code of Ordinances.
Grievance #13-CPOA-11
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100, The written termination paper work was signed by Chief Burton
October 5, 2011 and was effective September 21, 2011.
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113. Buckler stated Chief Burton, as a department head, has the
authority and responsibility to administer disciplinary actions.
114. Buckler found that the guidelines for termination were met.
115. Buckler found that there is no additional Information In the appeal
that provides reason to return this grievance to the Chief of Police
for further action.
116. The City grievance process was followed.
117. Grievances which are not specifically resolved and not continued
by the employee within the Grievance process were considered as
satisfied or abandoned and not subject to further consideration.
118. On November 29, 2011, Sanders appealed to the Advisory Board.
119. On November 15, 2013, Sanders presented his grievance to the
Advisory Board in a contested hearing.
120. The City met the burden In this case that Sanders should be
terminated and his grievance denied.
Personnel Advisory Board findings.
121. The Advisory Board found that Chief Burton acted within his
authority to terminate Sanders for failing to meet the following
obligations related to his interaction with Baker.
a. Duty to use reasonable force, and
b. Violation of the City of Columbia's Guidelines for Corrective
Action 19-225(a)(3) abusive or improper treatment of a prisoner.
122. The Advisory Board found Chief Burton did not act in an arbitrary
and capricious manner by his actions as alleged in the grievance.
123. The Advisory Board found Sanders was not in violation of the duty
to provide medical attention to a prisoner.
124. The Advisory Board recommended Sanders employment remain
terminated.
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0. CONCLUSIONS OF LAW
m
1.
2.
Sanders was an employee of the City of Columbia and as such, is
governed by City ordinances.
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CT)
The parties have complied with the policies, procedures and rules
for grievances set forth In Chapter 19 of the Code of Ordinances of
the-City of Columbia_
-4
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.
-4
3.
0
n
The City Manager has the authority under Sec. 19227 of Chapter
19 of the Code of Ordinances of the City of Columbia to terminate
the services of any employee for misconduct and violation of
regulations.
4.
Sanders while an employee of the City of Columbia Police
Department Is subject to the power and duties of the chief of
police City ordinance Sec. 21-19 regarding supervision and control
of the department, the enforcement of discipline among the
members, and the Instruction of the members In their duties.
5.
Under 'city ordinance Sec. 19-228 the Chief of Police as a
department head also has the authority and responsibility to
administer all disciplinary actions including termination of
employees under his supervision.
-
1,
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0
!-$
As an employee of the City of Columbia Police Department,
Sanders has a duty under City ordinance Sec. 21-20(b) to protect
the life and property of all persons in the city and to obey punctually
the orders of the chief of police.
Sanders' actions on or about August 15, 2011, violated GO 103.01
Code of Conduct Section 32 Duty to Use Reasonable Force which
states: 'Officers shall only use reasonable force to accomplish
lawful objectives".
On August 15, 2011, Sanders violently shoved Baker In the holding
cell at the Columbia Police Department which caused Baker's feet
to leave the ground as he was launched backwards Into the cell
wall. This was unreasonable force.
9.
The amount of force Sanders used was not reasonably necessary
and, in fact, excessive to achieve the purpose. This was an
unreasonable use of force.
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Sanders use of force was additionally unreasonable as set forth in
the findings of facts and as clearly shown on the video of the events
that transpired on August 15, 2011.
11.
The totality of circumstances factor test is not applicable because
there was not a, tense, uncertain and rapidly evolving situation and
Sanders was not forced to make a vitt-second Judgment.
However, if applicable, the use of force by Sanders was
unreasonable as the factors are set forth in the findings of fact.
12.
Section 19-225 of the Code of Ordinances of the City of Columbia
sets forth conduct which may be considered as Just cause for
suspension or discharge, Including:
•
"Section 19-225(aX3) Abusive or improper treatment of a
client, prisoner, citizen, or other individual In the community
or on the city payroir; and
•
'Section 19-225(aX4) Violation of any lawful and reasonable
departmental or city rule, regulation or directives"
13.
Sanders' actions on August 15, 2011, violated City of Columbia
Ordinance 19-225(aX3), Abusive or improper treatment of a
prisoner and there was Just cause to discharge and terminate
Sanders.
14.
Sanders' actions on August 15, 2011, violated GO 103.01 Code of
Conduct Section 32 Duty to Use Reasonable Force, which is a
lawful and reasonable departmental regulation and directive, and
there was Just cause to discharge and terminate Sanders.
15.
Sanders was properly given the opportunity to refute the charges
and meet In person (with his attorney present) with Chief Burton
before Sanders' dismissal.
16.
Sanders was given a written notification of the reasons for his
discharge and the facts that supported the discharge;
17.
Police Chief Burton gave both documentation and explanation to
Sanders regarding his discharge.
18.
Sanders, an eligible employee, appealed the disciplinary actions.
19.
Sanders was entitled to grieve his termination of employment.
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(
21.
A contested hearing before the Advisory Board pursuant to City
Ordinance Sec. 19-239 was property held on November 16, 2013.
22.
The Personal Advisory Board is an advisory board to the City
Manager. The City Manager Is not bound by the recommendations
of the Advisory Board.
23.
The City Manager is not bound by the discipline imposed by the
Chief of Police.
24.
The City Manager has the power to direct all employees.
25.
The City Manager may impose discipline ranging between a
counseling caution up to and including dismissal from City
employment.
26.
As required by Sec. 19-239, I Mike Matthes, as City Manager of the
City of Columbia, have reviewed the transcripts and exhibits
produced by the November 15, 2013, hearing and base my
decision upon due consideration of the record as a whole. I find as
a matter of law that the termination of Rob Sanders to be
authorized, proper and appropriate to the facts adduced.
E lectroni cal l y Fi led- W ESTE RND ISTRI CT CT O FAP P EALS - April 1 7 ,2015
The requirements of City Ordinance Sec. 19-238, allowing
discharged employees a contested hearing were met.
IlL FINAL DETERMINATION
I, Mike Matthes, City Manager of the City of Columbia, authorized
by the City of Columbia Ordinances Secs. 19-238 and 19-239, to
finally resolve grievances properly brought to my attention by City
employees having carefully considered the transcript of sworn
testimony and exhibits in the matter of Officer Robert Sanders, and
basing my decision In this matter on the record as a whole as such
was created by the Advisory Board, find and determine that Officer
Robert Sanders failed to meet the following obligations in his
position as an employee of the City of Columbia and his position as
a law enforcement officer in the Columbia Police Department:
a. Duty to use reasonable force, and
b. Abusive and improper treatment of a prisoner.
2.
!further find Officer Robert Sanders should not be terminated for
failing to provide medical attention to a prisoner in his custody.
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20.
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4.
In reviewing the appropriateness of the disciplinary action, the
disciplinary history of Sanders was reviewed. The disciplinary
history contains 13 instances of documented discipline, including
four suspensions, in 17 years, summarized as follows:
L) 10 IHISI CI N ?d
Officer Sanders was hired by the Columbia Police Department on
December 27, 1993.
L[1 P cIVSM/ Add V
3.
a. 1994 March — Sanders received a Notice of Remedial Action in
the form of a written counseling/caution for sexual harassment
of a co-worker. - Sgt. McCrary
c;
b. 1995 June — Sanders received a Notice of Remedial Action In
the form of a written counseling/caution for forcibly detaining a
family In a hotel lobby *without any reason to believe that these
subjects had been Involved In criminal activity". Sanders was
admonished "to be more concerned for, and aware of, subjects'
legal rights and to work within your legal authority? - Sgt.
McFarland
c. 1995 December —. Sanders received a Written Reprimand for
violating two ordinances which caused a traffic accident
involving a citizen. "Had Officer Sanders driven carefully and
within the speed limit, the accident would not have occurred.
Officer Sanders passed the other vehicle at an intersection and
In an attempt to avoid colliding with that vehicle, left the
roadway when such a movement could not be made in safety.
This was Officer Sanders second at-fault accident within four
months. The last accident on 06/29195 occurred as Sanders
tried to make a U-turn and lost control of his vehicle." Sanders
was admonished "to obey all traffic laws and ordinances and all
rules of the road." - Sgt. McFarland
d. 1996 September — Sanders received a Written Reprimand for
searching a vehicle without a warrant, failing to Issue a citation
to the vehicle driver for No Operator's License', and then
allowing the passenger (who also had no driver's license) to
drive the car from the scene. - Sgt. McFarland
e. 1997 February — Sanders received a one day unpaid
Suspension for falling to follow proper evidence handling
procedures. "This is your fiflh Notice of Remedial Action (prior
four Include: two (2) Counseling/Cautions and two (2) Written
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Officer Rob Sanders Personnel History.
A17
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E RN D ISTR ICT CT O F AP PEA L S-A pri l 1 7 ,201 5- 1 0 :1 6 AM
1. 1997 April — Sanders received a Written Reprimand for Initiating
a vehicle pursuit on the basis of a seat belt violation in violation
of CPO General Order - 066, 'You displayed poor judgment in
this Incident and did not totally evaluate the Incident prior to
your actions. This incident is the most recent in a series of
several personnel actions that have been taken against you
directly related to your Judgment in the manner of handling a
variety of situations. A continual display of poor judgment In the
manner in which you conduct your work, can have very serious
ramifications and does not reflect favorably upon yourself, the
Columbia Police Department or the City of Columbia." - Sgt.
France
g. 1999 January — Sanders received a two day unpaid Suspension
for "total disregard of GO-71... entitled 'Search of Detainees
and Inventory,' states In part: 'All detainees will be searched for
weapons and/or contraband before being placed In a holding
cell...' Your actions could have compromised the safety and
well-being of police and civilian personnel by placing them In
Immediate danger had (the detainee] been in possession of a
weapon and not contraband." • Sgt. Martin
h. 2004 March — A cautionary Memo was issued to Sanders as a
reminder of the duty to treat residents with courtesy after an
Incident in VValgreens while off-duty. "The fact that you
announce that a search warrant was served at the
complainant's residence while the complainant is at her place of
employment is not appropriate. Also, the fact that you inform
her that her son is a drug dealer is not appropriate. Even If
these two statements are true it is not appropriate for you to
announce these facts at someone's place of employment... I
would caution you to use better judgment in the future when
dealing with citizens whom you have had negative on duty
experiences with." - Sgt Alien
I. 2004 April — Sanders received a Written Reprimand for cursing
at residents on a walking trail for not leashing their dogs. The
Written Reprimand reminded Officer Sanders of his duty to use
Courtesy. - Sgt. Allen
j.
2008 February — Sanders received an 8 hour unpaid
Suspension for reckless driving. "Although you claim you were
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Reprimands), the last three in less than a two-year period of
time. All the actions are directly related to poor judgment on
your part.' - Sgt. France
A18
Pa RdAll ea! uwiourd
0 10 1D12:1 1510 N H-11S3M
gW e,
I u dV S -IVAdd V
k. 2008 December - Sanders was removed from his position as a
driving instructor. In making the decision to remove Sanders as
a driving instructor for the department, Dresner finds '...both
during the internal review Interview, and your sworn testimony
in the PAS hearing, you strictly maintain that your speeds were
justifiable, well within your control, and that further, as an
instructor, you Interpret the relative vagueness of Missouri
Statute on police speed as essentially any speed Is ok, until
someone gets hurt. The most troubling aspect of ail of this has
been your inability or unwillingness to see this Issue from a
perspective beyond your own.- In my opinion, you have by
your actions and statements indicated that management's
desires are not a very Important consideration when weighed
against your abilities, actual conditions and such.' - interim
Chief Dresner .
i. 2009 July - Sanders received a one week unpaid Suspension
for failing to assist a citizen who was the victim of vandalism
after the citizen requested an in person contact from an officer.
You chose not to respond to the complainant's location In
person and did not complete a police report." - Chief Burton
5.
in reviewing the appropriateness of the disciplinary action, the prior
performance evaluations of Sanders were also reviewed. The
performance evaluations contain both complimentary and negative
comments by the reviewing supervisor, summarized as follows:
a. 1994 June: Overall Meets Expectations - Officer Hammond and
Sgt. Wheeler - On a 5 scale, where 5 is the best, Sanders
received a rating of 2 on Oral Communications: "During an
investigation, Officer Sanders had an opportunity to speak with
an irate subject. Officer Sanders was caught off guard with this
subject and ended up in a heated shouting match. This heated
exchange had to be cooled down by a third officer. This
exchange was Officer Sanders' first opportunity to deal with an
uncooperative individual." Responsibility was rated a 2:
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attempting to overtake the suspect vehicle, the investigation
revealed you drove almost 3% miles at speeds exceeding 100
mph, without emergency equipment. The in-car video shows
that you were clearly not in a position to be overtaking this
vehicle and therefore your manner of driving was called into
question by your Lieutenant. Captain and the Professional
Standards Unit. You were not operating your patrol vehicle with
the due regard for the safety of yourself, partner and the
citizens of Columbia." - Chief Boehm
A19
CD
m
"Officer Sanders would often come up with an excuse when
confronted with a mistake?
cn
b. 1994 September. Interim Evaluation Review Sgt. McFarland
lOverafi Rob Is doing a good job. From the information I
received regarding Officer Sanders prior to his transfer to my
squad, I was somewhat skeptical. Rob has proven to be a hard
worker who is steadily improving his knowledge and
subsequent performance."
z
Cl)
c"),
c. 1994 December. Overall Exceeds Expectations - Sgt.
McFarland - °Rob Sanders is doing an outstanding job as a
rookie police officer. He achieved a 3.6 rating on this evaluation
which is indicative of excellent performance. I particularly like
the way Rob treats people in a variety of situations. The four
letters he received In a six month period is unheard of. I am also
impressed by the fact that Rob stays busy on patrol. If he's not
on an assigned call, he is out looking for traffic or other law
violations. I know from talking to Rob's more experienced peers
that they too are impressed by his attitude and his work ethic?
ti
(i)
d. 1995 June: Overall Meets Expectations - Sgt. McFarland Captain Schwandt - "Officer Sanders is highly motivated and
appears to have a sincere desire to do well although does have
one Improper° finding In regard to his misuse of authority. it is
hoped that he understands what his authority and limitations
are."
e. 1995 December: Overall Meets Expectations - Sgt. McFarland "Rob performed well during the first two months of this period
then his statistical productivity record shows that he took a nose
dive. Rob does a good job with personal interactions with
offenders and officers. However, I feel that when I counsel him
regarding behaviors or actions such as probable cause for
stops and arrests, approaching dangerous suspects without a
back-up or driving violations, rather than trying to learn from my
counsel, Rob tries to convince me that he Is right or ignores
what I am telling him. I would very much like to see Rob open
up to supervisory counsel if he is to realize his tremendous
potential."
f. 1990 June: Overall Meets Expectations - Sgt. McFarland Traffic Enforcement rated 1 on a 5 scale where 6 is best: "For
this last year, Rob has been low in the area of traffic
enforcement. I have pointed this problem out to Rob and asked
him several times to bring his traffic enforcement actMttes up to
Grievance #13-CP0A-11
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at least shift average to no avail. I have talked. with Captain
Schwandt regarding this continuing refusal on the part of Officer
Sanders to comply with my directives to improve his traffic
enforcement in line with the rest of the shift and we have
decided to begin taking formal disciplinary action regarding this
problem."
g. 1996 December: Overall Meets Expectations - Sgt. McFarland "Overall, Rob is doing a pretty good job, though he did have a
sustained complaint during this period."
h. 1997 December Overall Meets Expectations - Sgt. Schwartz Quality of Arrests was rated a 2 on a 5 scale where 5 Is best
`Officer Sanders exercises care in the use of physical force and
uses force for defensive purposes only. This Is extremely
important especially due to Officer Sanders' physical size and
strength.' The evaluation goes on to reflect the two disciplinary
events that occurred in 1997 (putting marijuana back Into
arrestee's pocket and initiating a vehicle pursuit for a seat belt
violation).
. 1998 December: Overall Meets Expectations - Sgt. Schwartz Responsibility was rated a 2 on a 5 scale where 5 Is best:
"Officer Sanders is able to accept and follow orders. At times,
he does need guidance and supervisory direction on certain
matters. I sent Officer Sanders two memos regarding the need
to stay in his beat and handle ongoing Incidents including
repeated vandalisms to a commercial fountain and larcenies
from motor vehicles. Another sergeant received a call from a
concerned citizen reference Officer Sanders' behavior, actions
and overall impression at a local bar/restaurant while he was on
duty. He was spoken to about this Incident and I received no
further citizen contacts similar in nature."
j.
1999 December Overall Meets Expectations - Sgt. Gregory Quality of Arrests was rated a 2 on a 5 scale where 5 is best:
This reflects the 2 day suspension for falling to search a
prisoner in a timely fashion, placing officers and civilians at
serious risk.
k. 2000 December: Overall Meets Expectations - Sgt. White —
"Officer Sanders is grasping a sense of community policing. He
is only limited by his assigned Beat and his own imagination.
Officer Sanders' strengths would Include his work relationships
and the evaluated area of preliminary investigations."
Grievance #13-CP0A-11
Page 20 of 24
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a
>
m. 2002 December: Overall Meets Expectations - Sgt. Worden —
Traffic Enforcement was rated 1 on a 5 scale where 5 is best for
having completed only 22 traffic stops during the evaluation
period. °During this evaluation period Officer Sanders worked
well with the other members of 3rd shift, I understand in the
past Officer Sanders has had problems In his dealings with
supervisors. During this evaluation period I observed no
problems in this area. Officer Sanders has great instincts and a
broad range of Job knowledge. I observed no problems with his
work other than the low traffic enforcement level. If Officer
Sanders can Improve In this area, I would have no problem
recommending him for specialty assignments."
n. 2003 December: Overall Meets Expectations - Sgt. Men Rated poorly on Driving Skills (involved In a preventable
accident - hitting a curb), Responsibility, and Traffic
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STERN DI ST RI CT CT OF APP EALS April 17 ,201
I. 2001 December: Overall Meets Expectations - Sgt. Ford-Henry
— Work Relationships: 'Officer Sanders Is well liked by officers
on his shift. I have noticed he does all he can to help and assist
co-workers on and off duty... His work relationship with
supervisors has not been as positive during this evaluation
period. Several times Officer Sanders failed to establish a
favorable and effective work relationship with supervisors.'
Case Preparation and Presentation: °I received one complaint
from the City Prosecutor's office reference a Possession of
Marijuana case (2001-004978). The prosecuting attorney
questioned the legality of the search in which marijuana was
discovered. The prosecuting attorney requested additional
information. This additional information did not reach the court
in time and the case was dismissed. I also noticed that if Officer
Sanders receives any notices of clarifications from the city
prosecuting attorney's office, he would be argumentative by
defending his reports and making unfavorable comments about
the competencies of the prosecuting attorneys." Driving Skills "On 07108/01 I witnessed Officer Sanders use poor judgment
when he disobeyed a traffic device while driving a patrol
vehicle. Officer Sanders was responding to a shots fired call at
Lou's Lounge where arriving officers advised "nothing was
showing". i was behind Officer Sanders In my patrol vehicle
facing south on Tenth at Walnut when he stopped for the red
light and then proceeded through without sirens or lights. After
clearing from the call I talked to Officer Sanders reference
running the red light. He said he couldn't remember If he ran the
light or not but said he was trying to get to the shoti fired call to
help officers."
El ect ronicall y Fi led-WES TERNDI STR I CTCTOF APP EAL S-April 1 7 , 201 5
o. 2004 December Overall Meets Expectations - Sgt. Allen - Does
not meet minimum standards In Enforcing traffic regulations;
Does not meet standards but capable of Improvement in
Interacting with the Public, Displaying integrity, and Conducting
General Patrol Activities, Seven items were rated as Exceeds
Standards. Noted the two disciplinary actions as the reason for
the low rating in interacting with the Public. On Displaying
Integrity, "He expresses his dislike about the administration
within this department on a regular basis during shift meetings.
He said he is constantly being 'messed with and never receives
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Enforcement. With regard to Responsibility: "Officer Sanders
seems to have difficulty accepting responsibility for his actions
and decisions. He believes that negative things happen to him
because the administration is messing with him. On 2-11-03
Officer Sanders requested permission to be re-Instated as a K-9
handler. He believes this position was taken from him unfairly
and he should be reinstated. On 04-01-03 Captain Schwartze
replied and offered to reinstate Officer Sanders with
restrictions...0fficer Sanders disagreed with the restrictions and
declined to accept the offer. He took it as a direct slap in the
face since 'the position should have never been taken from him
to begin with'. ... On 07-2403 Officer Sanders took over
responsibility of a prisoner from Officer Hatton. The prisoner
was uncooperative and belligerent. The prisoner fell and hit his
head and was looked at by medical personnel. Boone County
transport officials could not transport for two hours. Officer
Sanders agreed to transport the prisoner himself at 4:30 am. At
6;40 am I was notified that the prisoner had never been
transported. Officer Sanders said he forgot and when he
remembered he contacted the Jail and they said they would
transport the prisoner at 6:30 am. No transport was entered into
CAD.... Even though the department has been utilizing the live
scan fingerprint machine for over three years, Officer Sanders
has to have other officers fingerprint his prisoners due to his
lack of knowledge of the machine. This is not acceptable for an
officer with ten years of experience at this department." With
regard to Traffic Enforcement: *Officer Sanders is well below
the squad average In traffic enforcement. I spoke with Officer
Sanders on 04-15-03 about him only having made four traffic
stops for the year. I reminded him of his traffic related goals
regarding ten traffic stops per month and at least one DWI per
month. I gave him a written memo, expressing my
concerns, ...Officer Sanders completed the year with only 18
traffic stops... I would like for him to realize this is an important
part of patrol work."
papj Apoi uwp ao
WE ST E RN D I STRIC TCT OFAP PEAL S-A pril1 7 ,2 01 5 - 1 0 :1 6AM
p. 2005 December. Overall Meets Expectations - Sgt. Buck — it
was the Sergeant's first time assessing Officer Sanders. Noted
a non-preventable accident in Sander's patrol car and one
Incident of mishandled evidence that was not documented
elsewhere.
q. 2006 December. Overall Exceeds Expectations - Sgt. Bernhard
— Evaluation contains many positive comments, but noted traffic
enforcement efforts were still below acceptable levels. "He has
Improved In these areas and I look forward to his continued
Improvement In the next evaluation period
r. 2007 December. Overall Meets Expectations - Maynard —
"Officer Sanders has an excellent attitude about performing
most aspects of his job and Is usually a pleasure to be around,
but he consistently openly criticizes the department
management, policies, and decisions.
Justified as the
complaints may or may not be Is not the issue. His vocalization
has, at times, risen to the level of distraction and, at times, can
have a negative effect on the attitude of his coworkers?
Attitude and Traffic Enforcement noted as needing development
or improvement expected.
s. 2008 December. Overall Meets Expectations - Candy Cornman
- 'During this evaluation period, I became Officer Sanders'
supervisor following a large internal process where he was
being disciplined, During this process, Officer Sanders was very
upset. I also had difficulty with Officer Sanders contacting his
previous supervisor. Upon speaking with Officer Sanders about
this matter, he informed me that I was the worst supervisor he
had ever had, which consisted of me having been his
supervisor for approximately 2.5 months. This discussion with
Officer Sanders occurred after I gave him a memorandum due
to his disagreement with me concerning a report. Even after
having discussed the matter with Officer Sanders, he continued
to complain about the matter with other officers. Following this
matter, I attempted to motivate Officer Sanders, and he has
since started handling more calls for service, and I have noticed
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any training. On 03-03-04 I spoke with him about how his new
beat assignment was going. He said he was not doing any more
than he had ever done and was only 'doing his time here'? For
General Patrol Activities, "This Is a weak area. He often times
only responds to calls and is low In self-initiated activities...He
has tremendous potential and Is a great asset when he applies
himself.°
A24
c7-
0
0
3)
that his disagreements have declined. Officer Sanders has
Improved his attitude a great deal, has increased his
productivity and has even been selected as a firearms
instructor. Officer Sanders has informed me that he never wants
to work for me again.' "Officer Sanders was very defensive and
suspicious of me when I first became his supervisor. He did not
take suggestions or criticisms from me at ail, and would argue
with me even when shown he was Incorrect. However, with
continued effort, he and I have managed to overcome this
issue, and Officer Sanders has become more pleasant to
supervise."
SiVEidd V J O 1 0 10IHISIO N 2J31 S AM
CD
t. 2009 December: Overall Meets Expectations - Sgt. Bernhard "Officer Sanders, as a whole, could generally be described as
an above average officer in several categories. I know that he
has a very strong sense of beat ownership and works hard to
reduce crime In his assigned area. He takes the existence• of
problems in the area personally and attacks them heed on.
Unfortunately he also periodically will make an error In Judgment
which works out to his disadvantage every time. Barring such
an occurrence this year, Officer Sanders would have had a
pretty good year•"
u. 2010 December Overall Meets Expectations — "Officer Sanders
responsibilities have changed in regards to report writing.
Officer Sanders was selected as the newest canine handler for
the Columbia Police Department which requires new and
different Job responsibilities."
v. 2011: Discharge was effective September 21, 2011. No
evaluation completed for this period
6.
After considering the record as a whole, and in light of the prior
disciplinary and performance history of Officer Robert Sanders, I
find and determine that Officer Robert Sanders discharge from
employment was supported by the evidence In such record and to
be authorized and appropriate In this case.
It is so determined.
Dated this
47 day of December, 2013.
114k64
Mike Matthes, City Manager
City of Columbia, Missouri
Grievance #13-CPOA-11
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