Today I was talking with some coworkers and they were relaying to me a story about a St. Louis County cop that had pulled over a lady because something had flown out of her window. Then they proceeded to tell me about his record and how notoroious he was known throughout not only Missouri but possibly even some other states. They told me he is so shady that other police departments don't want to have anything to do with him. Damn that is not the reputation I would want to have.
FOX Files: St. Louis Gypsy Cops
Last Edited: Monday, 12 Nov 2007, 11:48 PM CST
Created: Monday, 12 Nov 2007, 6:33 PM CST
-->By: Chris Hayes
Officer Michael Waisner was hired this summer by Warson Woods police, despite being run out of Webster Groves after reports of affairs with teenaged girls. In administrative procedure, the Missouri Department of Public Safety -- or DPS -- found Waisner kissed a 16-year old girl while off duty and kissed an 18-year old in his squad car. He asked the older girl to be his 'tarpot,' someone who gives "sexual favors to Police Officers."
Chris Hayes asked, "How do you respond to DPS calling your actions in Webster Groves gross misconduct? Do you have any response? [Officer Waisner] No I don't have any response."
Officer Waisner is a classic case of what some call “gypsy cops”. He was fired from Webster Groves, but was able to find work in Pine Lawn and now Warson Woods, an upscale community between Rock Hill and Kirkwood.
In another case, Wellston Resident, Theresa Hubbard, was assaulted by an officer who's hopped around -- Avron Riggins.
"How can they hire somebody like that?" She told us, "and then when it happens to you, you're like okay, hopefully I'm on TV and this is part of a TV show because this can not be real."
Hubbard says she was with several relatives on the front porch when Officer Riggins, who was with Kinloch police at the time, threatened them with his gun and shot at their dog.
Hubbard said, "We all thought she was hit."
It was Riggins second assault conviction as an officer, according to court records. He even lost his police license-- but we found him working for Uplands Park as a Corrections Officer. He refused to comment and his superiors seemed surprised.
Another officer told us, "I haven't checked that information. [Chris Hayes followed up] Has anybody checked it? [The officer responded] You're asking the wrong person."
Uplands Park Trustee Charles Gamble said it's a problem he's been trying to get the Department to deal with for a while.
Gamble told us, "We hadn't screened these people." He continued, "You wonder about anybody if he keeps changing jobs to the next because the salary I think is pretty consistent. I think most of them only pay ten dollars an hour."
We even found a police Chief with a questionable past. Ricky Collins has switched jobs -- from Beverly Hills, to Pine Lawn, to Wellston and back to Pine Lawn. Collins is currently on probation with the State of Missouri. An administrative court document shows DPS's finding of fact -- that he committed "non consensual sex" in 1985. It didn't stop his promotion to chief.
Chris Hayes asked, "How can you discipline one of your officers if you have a record? [Chief Collins] Well having a record and having a past is two different things. Again Pine Lawn is going forward. What someone done in the past is just what it is -- in the past.
Collins was never prosecuted in criminal court. An Administrative Judge found that Collins had an ongoing relationship with the accuser but that there was also one incident of non-consensual sex. DPS went after his license as as a civil matter.
"It was an incident that occurred more than 20 years ago. It was a he said she said incident."
Reporter Chris Hayes followed up, "Despite that explanation, the State believes you committed a sexual assault, so can you lead this department? [Chief Collins] Well I have lead the Department. I have lead the department in a very positive way."
SLU Law Professor Roger Goldman tracks problems with officers who move around and pushes for tougher licensing standards all across the country.
He says it's easy for Departments to hire from another city because they're getting an officer who's already been through the academy.
"Therefore, you're tempted to wink at that previous misconduct and cross your fingers that he won't do the same thing at your Department. Furthermore as I mentioned, the salary is going to be able to command is not nearly what it would have been before he was quote damaged goods."
There are plenty of cities who need officers for about ten dollars an hour. In fact, nearly 50 cities in St. Louis County are less than one square mile. Put them all together and you have nearly 50 different, low paying police departments that serve an area smaller than the City of St. Louis.
Goldman added, "It's very likely if you've got a Department with the chief and two or three people that you don't have the command structure to handle issues of discipline."
Uplands Park Board Member Charles Gamble thinks a solution may be to combine a lot of the small departments into one district -- similar to what the Normandy Fire District does.
"We cannot do this alone. We've got to bring in some outside advisors to help us operate an efficient and well operated police department."
In some cases, the County can take over a failing Police Department. St. Louis County took over patrolling Kinloch several years ago.
Administrative Hearing Commission
State of Missouri
DIRECTOR OF DEPARTMENT )
OF PUBLIC SAFETY, )
vs. ) No. 99-1265 PO
RICKEY O. COLLINS, )
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Director of the Department of Public Safety (Director) filed a complaint on May 3, 1999, seeking this Commission’s determination that the peace officer certificate of Rickey O. Collins is subject to discipline for several incidents of gross misconduct indicating an inability to function as a peace officer. On December 8, 2000, the Director filed an amended complaint seeking this Commission’s determination that Collins’ peace officer certificate is subject to discipline for only one of the incidents contained in the original complaint, that being the alleged sexual abuse of a co-worker, M.S., in 1984 and 1985.
This Commission convened a hearing on the complaint on January 12, 2001. Assistant Attorney General Andrea Spillars represented the Director. Freeman R. Bosley, Jr., represented Collins. The matter became ready for our decision on February 8, 2001, when our reporter filed the transcript. We find that Collins’ certificate is subject to discipline.
Findings of Fact
Collins holds peace officer Certificate No. ###-##-####. That certificate was current and active at all relevant times.
Collins has been employed by the Pine Lawn Police Department since 1994.1 During 1984-85, the years at issue in this case, Collins was employed by the Beverly Hills Police Department in St. Louis County.
In 1983, M.S. started to work as a cashier at the Schnucks store in Beverly Hills.
Collins also worked at Schnucks as a security guard as a second job.
The employees of Schnucks sometimes went out together for drinks after the store closed. M.S. went sometimes, as did Collins. They sometimes were at a bar together after work, with other co-workers.
Collins and M.S. had a friendly and flirtatious relationship. On several occasions, M.S. gave Collins a ride home. His residence was near the store.
Collins invited M.S. into his home several times. She accepted his invitation once. When he made advances to her, she left.
After that incident, Collins became increasingly aggressive toward M.S. in his sexual advances. Although M.S. resisted, he frequently put his hand down her pants. All these incidents took place at the store.
One evening in 1985 after the store closed, M.S. went to the women’s restroom in the back of the store. The other cashier on duty had gone to the women’s restroom in the front of the store. The only other people in the store were Collins, the manager, and the senior cashier.
As M.S. emerged from the restroom, Collins was in the doorway. He pushed her back into the restroom, pulled her pants down, and raped her. During the rape, she cried and told him not to do it. Afterward, M.S. pulled her pants up and ran out of the store.
M.S. did not immediately tell anyone about the incident. She was afraid her brothers would react violently and that “somebody was going to get hurt.” Collins’ brother, Joe Collins, was, and still is, the chief of the Beverly Hills Police Department. This relationship contributed to her feeling of intimidation. She testified at our hearing under subpoena.
Another security guard who worked at the store also began to harass M.S. One day several months after Collins raped her, the other security guard approached her when her mother and sister were in the store, and M.S. “lost it.” She told the senior cashier she was quitting, and told her mother and sister about the rape and harassment.
After M.S. told her family about the incident, she reported it to the St. Louis County Police.
M.S. filed a civil lawsuit against Collins, but she dropped it. Criminal charges were never filed against Collins for the rape incident.
Conclusions of Law
We have jurisdiction to decide whether Collins’ peace officer certificate is subject to discipline. Section 621.045.2 The Director has the burden to show that Collins has committed an act for which the law allows discipline. Missouri Real Estate Commission v. Berger,
764 S.W.2d 706, 711 (Mo. App., E.D. 1989). As this is an administrative proceeding, the Director must meet its burden only by a preponderance of the evidence. State Bd. of Nursing v. Berry, 32 S.W.3d 638, 642 (Mo. App., W.D. 2000).
The Director argues that Collins is subject to discipline under section 590.135.2(6), which allows discipline for “gross misconduct indicating inability to function as a peace officer.”
Misconduct is defined as “the willful doing of an act with a wrongful intention[;] intentional wrongdoing.” Missouri Bd. For Arch’ts, Prof’l Eng’rs & Land Surv’rs v. Duncan, No. AR-84-0239 (Mo. Admin. Hearing Comm’n Nov. 15, 1985, aff’d, 744 S.W.2d 524 (Mo. App., E.D. 1988). The term “gross” indicates an especially egregious mental state or harm. Id. at 533. The duties of a peace officer include “maintaining public order, preventing and detecting crimes, and enforcing the laws.” Baer v. Civilian Personnel Div., St. Louis Police Officers Ass’n, 747 S.W.2d 159, 161 (Mo. App., W.D. 1988) (citing Jackson County v. Missouri Bd. of Mediation, 690 S.W.2d 400, 403 (Mo. banc 1985)).
If M.S.’s testimony is credible, Collins’ sexual abuse of his coworker was indeed gross misconduct, particularly when he was acting in a quasi-public safety capacity as a security guard. The “testimony of a single witness may be sufficient to constitute substantial evidence to make a submissible case.” State v. Sumowski, 794 S.W.2d 643, 645 (Mo. banc 1990). However, the credibility of M.S. and the other witnesses is unquestionably the pivotal issue in this case. Thus, we examine that issue at some length.
M.S. testified to the facts above. The most troubling aspect to her version of the events is her failure to tell anyone about the sexual assault for months after it happened. However, she presented evidence that (1) she was intimidated by the facts that Collins was a police officer and his brother was the chief of police, and (2) she was afraid her brothers would react violently to her story and that someone would get hurt. She repeatedly denied having a consensual sexual relationship with Collins or any of the other security guards she worked with. Her demeanor was credible.
Collins attempted to impeach M.S.’s credibility through the testimony of Betty Jean Smith. At the hearing, the Director objected to the admissibility of Smith’s testimony on the grounds that Collins had not disclosed her as a potential witness, asking that her testimony be excluded as a sanction for failing to comply with the rules of discovery. At the hearing, we requested copies of any interrogatories and answers to interrogatories relevant to this issue. The parties were unable to produce either at the hearing. We allowed Smith to testify and stated that we would take the objection under advisement, allowing the parties five days after the hearing to supplement the record with copies of either interrogatories or answers to interrogatories. Neither party furnished any.
We cannot impose sanctions for failing to comply with the rules of discovery without any documentation relating to the discovery. We include Smith’s testimony in the record and consider its impact on M.S.’s testimony.
Smith testified that M.S. often returned to the store after her shift so that she could be with Collins, that she talked with co-workers about having gone to his house, and that “it was known” that they had a consensual sexual relationship. On cross-examination, she admitted that she had never seen signs of physical intimacy between the two, nor had she heard M.S. talk specifically about a sexual relationship with Collins, nor had M.S. ever told her she was returning to the store in order to see Collins. Weighing the impact of her testimony on M.S.’s, we find that she did not successfully impeach M.S.’s veracity.
Collins also attempted to impeach M.S. through the testimony of Joe Collins, his brother, the Beverly Hills chief of police. M.S. testified that Joe Collins had tried to pressure her into not pressing charges against his brother, and that in conversations and meetings with her he asked her what it would take for her not to press charges. Chief Collins denied this. The Director then offered a rebuttal witness, Harold Klein, a retired St. Louis County investigator, who testified
that he wired M.S. prior to a meeting, observed officers go in the building for the meeting, and listened to a tape of the meeting after the fact. The tape was not produced, and Collins objected to Klein’s testimony insofar as it covered what he heard on the tape. We took the objection under advisement.
We sustain Collins’ objection to Klein’s testimony as to the contents of the tape. We find that evidence of the contents is not necessary to support a finding that M.S. felt intimidated after the occurrence and that her feeling could have contributed to the fact that she did not follow through with legal action against Collins. The mere fact that Klein and St. Louis County investigators wired her and conducted surveillance on her meeting with Chief Collins and his associates lends credence to her claim that she felt intimidated; presumably these measures would not have been taken had she not complained of such concerns at that time.
Collins presented character witnesses on his behalf to which no objection was made. The Director subsequently offered evidence to undermine and impeach the credibility of those character witnesses. Collins objected to the admission of that evidence on the basis that it was closer to the present than to the 1985 incident and was therefore of questionable relevance. We
overruled Collins’ objection on the grounds that his character evidence was, similarly, related to the present and the recent past. For that reason we deemed the Director’s evidence relevant for purposes of determining the credibility of the witnesses, but also for that reason we deem both parties’ evidence on the issue of Collins’ character to have minimal relevance to the issue at hand, which is whether he sexually abused M.S. in 1984 and 1985.3
Finally, we note, as did the Director in closing, that Collins himself, although present at the hearing, did not testify. “Failure of a party to call a witness who has knowledge of facts and circumstances vital to the case generally raises a presumption that the testimony would be unfavorable to the party failing to offer the testimony.” Kelly by Kelly v. Jackson, 798 S.W.2d 699, 701 (Mo. 1990); see also Piper v. Missouri Pac. Ry., 847 S.W.2d 907, 910 (Mo. App., E.D. 1993).4 We note that Collins’ failure to testify is not the only reason we find for the Director, nor could it be.5 It merely adds weight to the Director’s case.
Collins argued in closing that the alleged incident was too remote in time to support a finding of cause for discipline now. We agree that remoteness in time may present problems of proof, but there is no statute of limitations on an action against a peace officer’s certification.6 The Director may consider intervening events, such as evidence of rehabilitation, in determining the level of discipline to impose. However, the mere passage of time does not affect our finding that Collins sexually abused M.S. and that he is therefore guilty of gross misconduct indicating an inability to function as a peace officer.
Collins’ certificate is subject to discipline under section 590.135.2(6).
SO ORDERED on March 15, 2001.
KAREN A. WINN
1At the hearing, the Mayor of Pine Lawn, Adrian Wright, testified that Collins had been employed by Pine Lawn since 1983. Admitted exhibits, however, indicate that he became employed by Pine Lawn in 1994. Moreover, all other witnesses agree that during 1984 he was employed by the City of Beverly Hills.
2All statutory references are to the 2000 Revised Statutes of Missouri.
3After the hearing, Collins attempted to present additional evidence in the form of documents by and to Colonel G. Thomas Walker, the former Pine Lawn Chief of Police. We assume that these are intended as rebuttal to the impeachment evidence offered by the Director. Although the Director did not object to the admission of the documents, we decline to admit them because we deem our record to be closed at the close of the hearing unless we have expressly left it open, or a party petitions to reopen for good cause and we grant the petition. Neither occurred here. Nevertheless, we note that the exclusion of these documents does not affect the outcome of the case for the reasons discussed above.
4In general, a party may request the finder of fact to draw an adverse inference from the failure of the opposing party to produce a witness who is not “equally available” to the first party. “Equal availability” depends on (1) one party’s superior knowledge of the existence of the witness; (2) the nature of the testimony the witness would be expected to give; and (3) the relationship of the witness to the party. The witness must also have knowledge of facts and circumstances vital to the case in order for the concept of equal availability to be applicable. Piper, at 910. We have not found a Missouri case in which this concept was applied to a party who fails to testify on his own behalf, but it would seem to apply.
5Cf. Pagel, Inc. v. S.E.C., 803 F.2d 942, 946-47 (8th Cir. 1986) (while silence alone is insufficient to support an adverse decision against one who refuses to testify, it was permissible to draw adverse inference from failure of broker who had invoked fifth amendment to testify in civil proceeding), citing Baxter v. Palmigiano,
425 U.S. 308 (1976).
6Compare section 620.154, which imposes a three-year statute of limitations on an action against a person or entity licensed or certified by one of the boards assigned to the Division of Professional Registration within the Department of Economic Development.
DIRECTOR OF DEPARTMENT OF )
PUBLIC SAFETY, )
vs. ) No. 04-1479 PO
RICKEY O. COLLINS, )
Rickey O. Collins is not subject to discipline for violating the conditions of his probation agreement.
On November 5, 2004, the Director of the Department of Public Safety (“the Director”) filed a complaint seeking to discipline Collins. On May 12, 2005, we held a hearing on the complaint. Assistant Attorney General David F. Barrett represented the Director. Stanley E. Goldstein and Eli Karsh, with Liberman, Goldstein & Karsh, represented Collins. The matter became ready for our decision on September 8, 2005, the date the Director waived filing a reply brief.
Findings of Fact
Collins is, and was at all relevant times, licensed as a peace officer.
On March 15, 2001, in Case No. 99-1265 PO, this Commission issued a decision finding cause to discipline Collins. On July 11, 2002, on remand from the Circuit Court of
St. Louis, we issued a decision and again found cause for discipline.
On December 10, 2002, Collins and Charles Jackson, the Director at that time, entered into a probation agreement. The probation agreement contains the following provisions:
Pursuant to 590.080.5, RSMo, Mr. Collins agrees that his license as a peace office [sic] is on indefinite probation. This probationary period is subject to review, by petition to the Department, but no such petition may be submitted sooner than five years from the date below. Mr. Collins voluntarily submits to the following conditions of probation:
* * *
(2) Mr. Collins agrees that his license is only valid for commission as a peace officer with the City of Pine Lawn Police Department. The City of Pine Lawn Police Department is under no obligation, however, to employ Mr. Collins as a peace officer. While on probation, Mr. Collins agrees that he will obtain the Department’s approval before accepting a commission as a peace officer with any other law enforcement agency.
(3) Mr. Collins agrees not to be employed as a security guard or in a similar capacity while on probation.
The probation agreement does not define or otherwise describe what constitutes “employed as a security guard.” There are no Missouri laws or regulations that define the position of security guard.
The basis for the finding of cause for discipline was an incident that took place in 1985 while Collins was working as a security guard at Schnucks. The incident involved a co-worker and took place while Collins was on the job.
By letter dated December 26, 2002, Collins asked Jackson for permission to seek employment with another police department because his position had been filled at the Pine Lawn Police Department.
By letter dated December 31, 2002, Jackson granted the request on the condition that Collins notify the other police department of his probationary status.
Through referral from an unemployment office, Collins learned of a part-time position at Allied Security (“Allied”), a company that provided security-monitoring services for office buildings.
Collins did not want to violate his probation agreement and did not know whether accepting the Allied position would violate the agreement.
On December 18, 2003, before Collins accepted the position, he called Jackson to determine whether he could accept the position. Collins explained that he had been unemployed for six months and described the details of the Allied position. In response, Jackson told Collins: “I would not do anything to prevent you from supporting your family . . . I’ll have no problem with that.”1
During December 2003, Collins also spoke to Gayla Kempker, Program Representative for the Department of Public Safety’s (“the Department”) Police Officer Standards and Training Program, about his continuing education hours.
In order to work for Allied, Collins was required to get a license as a security officer from either St. Louis City or St. Louis County. In January 2004, Collins attended a three-day class and was licensed as a security officer by St. Louis County.
In his position at Allied, Collins answered telephones and gave name tags to visitors. He watched parts of the building on security monitors. He did not patrol the facility and did not carry a gun. If Collins noticed a potential security problem, he notified the building management or the local police. He did not investigate the matter himself. Collins was paid $11.00 per hour and worked 20 hours per week.
By letter dated September 16, 2004, Collins informed Jackson that he had received an offer to return to work as a police officer with the City of Wellston. Collins asked Jackson if he could continue working part time with Allied.
After the Director received this letter, the Department’s staff informed Collins that he was working as a security guard in violation of the probation agreement.
Collins immediately terminated his employment with Allied and surrendered his security officer license.
At the time of the hearing, Collins was a police officer with the City of Wellston. Collins has an opportunity to return to Pine Lawn in an administrative position.
Conclusions of Law
We have jurisdiction to hear the complaint.2 The Director has the burden of proving that Collins has committed an act for which the law allows discipline.3 This Commission must judge the credibility of witnesses, and we have the discretion to believe all, part, or none of the testimony of any witness.4
The Director argues that there is cause for discipline under § 590.080, which states:
1. The director shall have cause to discipline any peace officer licensee who:
* * *
(5) Has violated a condition of any order of probation lawfully issued by the Director[.]5
* * *
2. When the director has knowledge of cause to discipline a peace officer license pursuant to this section, the director may cause a complaint to be filed with the administrative hearing commission, which shall conduct a hearing to determine whether the director has cause for discipline, and which shall issue findings of fact and conclusions of law on the matter.
The Director argues that Collins violated the probation agreement because he worked for Allied as a security guard. Collins denies that the position was that of a security guard as that term is used in the agreement.
I. Telephone Call to Jackson
Collins testified that he contacted Jackson and was told that there would be no problem with taking the position. To refute this direct testimony, the Director offered Jackson’s testimony that he does not remember such a conversation.6 During cross-examination, Jackson testified:7
Q: Can you sit here today and swear under oath that a conversation with you did not occur?
A: No, sir, I cannot. There’s a possibility.
The only other evidence is a copy of phone records showing that Collins contacted the Department on several occasions in November and December 2003. The Director argues that Collins could have been talking to anyone at the Department, and this is true. Kempker testified that Collins spoke with her about his continuing education hours during the same time period. But there is no direct evidence to contradict Collins’ testimony that he spoke with Jackson and his testimony about the contents of that discussion.
When there is a direct conflict in witness testimony, we must make a choice between the conflicting testimony.8 We are not required to make such a choice in this case because there is
no direct conflict between Collins’ and Jackson’s testimony. We do not have to find Jackson to be a less than credible witness to believe Collins. We accept Collins’ testimony and have made our findings of fact accordingly.
II. Alter Terms of Agreement
The probation agreement is a contract.9 The Director argues that even if Collins spoke with Jackson, the Director did not have authority to alter the terms of the probation agreement. Under the agreement, Collins can seek permission to be employed as a peace officer, but the prohibition against working as a security guard is absolute and is not subject to waiver. The Director does not explain why his predecessor – who had signed Collins’ probation agreement – did not have the authority make a subsequent oral amendment to the contract.10
Settlement agreements are not required to be in writing unless the subject matter of the agreement is within the statute of frauds.11 Section 432.010, RSMo 2000, states:
No action shall be brought to charge any executor or administrator, upon any special promise to answer for any debt or damages out of his own estate, or to charge any person upon any special promise to answer for the debt, default or miscarriage of another person, or to charge any person upon any agreement made in consideration of marriage, or upon any contract made for the sale of lands, tenements, hereditaments, or an interest in or concerning them, or any lease thereof, for a longer time than one year, or upon any agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized, and no contract for the sale of lands made by an agent shall be binding upon the principal, unless such agent is authorized in writing to make said contract.
We find that the subject matter of the settlement agreement is placing Collins’ license on probation for a period of five years. By setting the specific period of time of five years, the settlement agreement cannot not be fully performed in one year.12 Therefore, the settlement agreement and any subsequent amendments were required to be in writing. Therefore, we agree with the Director that Jackson could not orally alter the terms of the contract.
III. Probation Agreement/Contract Law
a. Ambiguous Contract
Because the probation agreement is a contract, we use contract principles to determine whether the Director properly interpreted the terms of the contract. The principle for contract interpretation is to determine the intention of the parties and “to give effect to that intent.”13 The terms of the contract are reviewed as a whole, not in isolation.14 If a contract is ambiguous, then extrinsic or parole evidence is admissible to determine the parties’ intention.15 An ambiguity arises in a contract:16
if there is duplicity, indistinctness, or uncertainty in the meaning of the words used, or if the contract promises something at one place and takes it away at another. The test is whether the disputed language, in the context of the entire agreement, is reasonably susceptible to more than one construction, giving words their plain and ordinary meaning as understood by a reasonable person.
In Lacey the court found such an ambiguity in Lacey’s settlement agreement with the Board of Healing Arts. The court found that the provision in a “First Disciplinary Order” or
“FDO” requiring a female chaperone to be present during gynecological examinations was ambiguous. Lacey, after consulting with his attorney who had spoken with the Board’s attorney, did not utilize the chaperone while taking medical histories, but did so during the actual physical examinations. Later the Board decided that the FDO meant that Lacey had to have the chaperone in attendance at all times during the female patients’ visits. The Board attempted to discipline Lacey for violating the terms of his probation.
The court determined that the FDO was simply a settlement agreement and was to be viewed as a contract with the same principles applicable to the interpretation of any other contract.17 The court stated: “It is readily apparent to this court that reasonable people could fairly and honestly differ in their construction of the term “during” as used in the phrase ‘present during all female patient visits.’”18 The court allowed extrinsic evidence, including prior interpretation of the terms by the parties, to resolve the ambiguity, and resolved it in favor of Lacey.
In the case before us, the probation agreement – a contract between Collins and the Director – does not define the term “security guard,” which creates the potential for ambiguity as discussed below.
b. Security Guard Position
Collins telephoned Jackson to determine whether the Allied position was the type that would be considered a security guard under the probation agreement. At the hearing, Jackson testified that he did not think it would be. This is consistent with Collins’ statement that Jackson told him the same thing approximately a year earlier. In response to questions by the Commissioner, Jackson testified:19
Q: Mr. Jackson, what is a security guard?
A: It’s one that to me provides security at an office or a business or some type of complex in various capacities.
Q: All right. What is the providing of security? What does that mean?
A: To make sure that the building or complex, whatever the person is watching over, is secure, be they an armed security guard or someone, you know, just monitoring equipment.
* * *
Q: Do you know what the purpose was for including that provision in the probation agreement, the prohibition of acting as a security guard?
A: Because the offense in which he was disciplined, he was acting in a security guard capacity at that time, and I did not want him back in that environment.
Q: And was the job that you -- do you understand the position now that he held at Allied?
A: I understand what he was doing now.
Q: Is that position the same type of position that he had in this previous --
A: No, it is not. I don’t believe he interacted with people. And this is my speculation, that he was simply dealing with equipment, electronic surveillance.
Q: Does being a security guard necessarily entail interacting with people?
A: I believe most of them do.
Q: Does the job --
A: Well --
Q: The job that you’ve heard -- did you hear Rickey Collins describe the position he had at Allied?
A: That he was a monitor. He monitored equipment.
Q: Based on your experience, is that a security guard position?
A: To me it’s a lower form of security guard, lower responsibility type security because you get someone else to respond to any incidents, that you’re strictly there to monitor and to -- it’s more of a watchman than a security guard.
Q: Does the Department have regulations that define what a security guard is or did it at the time you were Director?
A: No, we do not.
While Jackson’s testimony would not prevent us from finding that the Allied position was that of a security guard, the Director offered no evidence of the functions and duties of a security guard. As noted above, the probation agreement does not define the term and is vague concerning what Collins can and cannot do.
The Director argues that because the Allied job required a security officer license, it must be a security guard or similar capacity position. State law is not helpful. Security guards are not licensed on a state-wide basis, and the one Missouri statute defining “security guard” is vague. Section 71.195, RSMo 2000, discussing municipal security guard licenses, states:
2. For the purposes of this section, the term “security guard” is defined as any person who is not authorized to carry a firearm and who is paid to protect the person or property of another, but shall not include law enforcement officers or any other public official or employee.
This definition clearly does not apply in this situation because Collins, although on probation, was still licensed as a police officer. The court in Parrish v. Kansas City Security Service, 682 S.W.2d 20 (Mo. App., W.D. 1984), described a security guard’s duties that included listening for the phone, reporting emergencies, and turning a clock key each hour at different locations within a building. There was an element of patrolling the facility in that case. We find no clear definition of a security guard in statutes, regulations or case law.
Similarly to the contract in Lacey, reasonable people could differ as to whether Collins’ position at Allied fell within the definition of a security guard. We find that the probation agreement is ambiguous as to what is meant by “employed as a security guard.” Because we find no clear definition of “security guard,” we look to the common sense, dictionary meaning. State v. Trotter, 5 S.W.3d 188, 193 (Mo. App., W.D. 1999). “Security” is defined as:20
4 a : something that secures : PROTECTION b (1) : measures taken to guard against espionage or sabotage, crime, attack, or escape[.]
“Guard” means “one assigned to protect or oversee another . . . a person or a body of persons on sentinel duty[.]”21 These definitions carry with them the idea of interaction between people – patrolling or physically acting to protect. Having someone sit in a room and watch monitors that show different locations in a building is clearly a measure taken to guard against crime or some other offense. Collins was involved in the building’s “security.” It is more problematic whether he was acting as a guard. He could not act to protect anything; he called someone else to perform that function.
Looking to evidence outside the probation agreement, Jackson could not testify that Collins’ job duties at Allied were definitely those of a security guard. While Collins did watch monitors showing different parts of the building, many of his duties more closely represented that of a receptionist – answering the telephone and checking in visitors. As in Lacey, Collins had a representation from the Department that his interpretation of the term in the probation agreement was correct – that the position would not be considered a security guard position. Finally, we determine the parties’ intention by examining the purpose of the prohibition in the probation agreement. The parties sought to avoid the situation that was the subject of the
finding of cause for discipline. The prohibition was about potential involvement with people while working in a supposedly protective “guard” position.22
Finally, even without such extrinsic evidence, we could find in his favor as noted in Lacey:23
[W]e would still find in his favor under the well-established default rule of Missouri contract interpretation that “‘if a contract is fairly open to two interpretations that construction must be adopted which is against him who prepared it and favor him who merely signed it.’”
We find that the Director failed to prove that Collins worked as a security guard in violation of his probation agreement.
We find that the Director failed to prove that Collins worked as a security guard in violation of his probation agreement. We do not find cause for discipline under § 590.080.1(5).
SO ORDERED on December 20, 2005.
JUNE STRIEGEL DOUGHTY
1Tr. at 25. Collins asserts that these were Jackson’s “exact” words.
2Section 621.045, RSMo 2000. Statutory references, unless otherwise noted, are to the 2004 Supplement to the Revised Statutes of Missouri.
3Missouri Real Estate Comm’n v. Berger, 764 S.W.2d 706, 711 (Mo. App., E.D. 1989).
4Harrington v. Smarr, 844 S.W.2d 16, 19 (Mo. App., W.D. 1992).
5Absent this statute, the issue of whether a licensee violated a probationary agreement would be determined by the licensing agency. State Bd. of Reg’n for the Healing Arts v. Masters, 512 S.W.2d 150, 161 (Mo. App., K.C.D. 1974).
6Tr. at 50.
7Id. at 53.
8Smarr, 844 S.W.2d at 19.
9Lacey v. State Bd. of Reg’n for the Healing Arts, 131 S.W.3d 831, 838 (Mo. App., W.D. 2004).
10Unlike many professional licensing cases, there is no board authorized to seek discipline. Section 590.080.1 gives that authority to the Director of the Department of Public Safety.
11Vulgamott v. Perry, 154 S.W.3d 382, 390 (Mo. App., W.D. 2004) (settlement of lawsuit for injury from a car accident did not have to be in writing); Bolander v. City of Green City, 35 S.W.3d 432, 440 (Mo. App., W.D. 2000) (settlement agreement involving condemnation pursuant to local ordinances did not have to be in writing).
12Mayer v. King Cola Mid-America, Inc., 660 S.W.2d 746 (Mo. App., E.D. 1983) (three-year employment contract was within statute of frauds because it could not be fully executed within one year). Cf. Kaiser Foundation Health Plan of the Northwest v. Doe, 903 P.2d 375 (Or. App., 1995) (promise never to reapply for employment was not within statute of frauds because it would be fully completed if ex-employee died within one year).
13Butler v. Mitchell-Hugeback, Inc., 895 S.W.2d 15, 21 (Mo. banc 1995).
14Tuttle v. Muenks, 21 S.W.3d 6, 11 (Mo. App., W.D. 2000).
15Lacey, 131 S.W.3d at 841; Coale v. Hilles, 976 S.W.2d 61, 66 (Mo. App., S.D. 1998). See also Sells Rest Home, Inc. v. Dept. of Social Services, No. 92-1238 SP (AHC June 1, 1993) (we found that the term “amount” in a stipulation could mean any one of three different things).
16Rathbun v. CATO Corp., 93 S.W.3d 771, 778 (Mo. App., S.D. 2002) (citations omitted).
17Lacey, 131 S.W.3d at 838.
18Id. at 841.
19Tr. at 60-62 (emphasis added).
20MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 1056 (10th ed. 1993).
21Id. at 516.
22Tr. at 61-62.
23Lacey, 131 S.W.3d at 842 (citations omitted).