                                        In the
                       Missouri Court of Appeals
                                Western District
ANTHONY MELKOWSKI,                          )
                                            )
               Appellant,                   )   WD77668
                                            )
v.                                          )   OPINION FILED: March 10, 2015
                                            )
THE BOARD OF POLICE                         )
COMMISSIONERS OF KANSAS                     )
CITY, MISSOURI, ET AL.,                     )
                                            )
              Respondents.                  )

              Appeal from the Circuit Court of Clay County, Missouri
                        The Honorable Janet L. Sutton, Judge

 Before Division One: Cynthia L. Martin, Presiding Judge, Mark D. Pfeiffer, Judge and
                                Gary D. Witt, Judge


      Anthony Melkowski ("Melkowski") seeks judicial review of the Kansas City

Board of Police Commissioners' ("Board") decision to terminate his employment with the

Kansas City Police Department ("Department") because he violated personnel policies

addressing the use of profanity, the use of force, and repeated discipline. Melkowski

argues that the Board erred in terminating his employment because it failed to consider a

legal bulletin describing the reasonable use of force and because it exceeded its
jurisdiction by terminating him in reliance on a personnel policy that was not identified in

his initial charge. Because the Board considered the legal bulletin and did not exceed its

jurisdiction, because the Board's decision to terminate Melkowski was not arbitrary and

capricious based on the record as a whole, and because Melkowski does not challenge on

appeal all bases for termination identified in the Board's written decision, we affirm.

                            Factual and Procedural History

       On November 2, 2006, Melkowski and his partner Officer Rares Toma ("Toma")

saw Michael Payne ("Payne") walking on the sidewalk near some apartment buildings.

Payne was identified by the Department as a "red-file target" because of his criminal

history. Payne was suspected of narcotics activities and had been identified by several

local landlords and business owners as someone they wanted prosecuted for trespassing if

seen on their property.

       Because the Department authorizes red-file targets to receive higher attention from

police officers, Melkowski and Toma began following Payne. After following Payne in

their patrol car for a while, Melkowski and Toma approached Payne on foot. The patrol

car was equipped with a video camera that recorded the 12-minute encounter between

Melkowski and Payne that followed.

       As the officers approached Payne, Toma saw Payne put something in his mouth.

Once the officers reached Payne, they placed him in handcuffs in front of the patrol car.

Toma shined his flashlight in Payne's mouth and determined that Payne was attempting to




                                             2
conceal narcotics. Toma believed that Payne had approximately three crack cocaine

rocks under his tongue.1

        Toma told Melkowski that Payne was trying to swallow the drugs. Melkowski

quickly grabbed Payne's Adam's apple. Melkowski later reported that he grabbed Payne's

throat to preserve the narcotics as evidence and to keep Payne from ingesting a dangerous

substance. The officers bent Payne over the hood of the patrol car. While Melkowski did

not choke Payne or impair his breathing, he did have his hand around Payne's throat and

was holding onto and pulling Payne's hair.

        After a few minutes, Melkowski released his hold on Payne's throat but continued

to hold him down on top of the hood of the patrol car. While using profanity, Melkowski

threatened to call an ambulance and to have Payne's stomach pumped, to spray him with

pepper spray, and to open his mouth with an ink pen in order to get him to spit out the

drugs. The video shows Melkowski asking Toma for an ink pen. Payne did not comply

with Melkowski's efforts to remove the drugs from Payne's mouth.

        Melkowski then turned Payne's face away from the camera, grabbed his night

stick, and held the night stick close to Payne's face. Payne can be heard making gagging

noises and begging Melkowski not to hurt him. Because of Payne's positioning, the

video neither confirms nor negates that Melkowski inserted the night stick into Payne's

mouth. However, after Payne is heard gagging and begging Melkowski to stop, the video

shows Melkowski wiping his night stick through Payne's hair.


        1
         It was never determined whether Payne, in fact, had drugs in his mouth. We will refer to whatever was in
Payne's mouth as "drugs" throughout this opinion for ease of reference.

                                                        3
      It was eventually determined that Payne had swallowed the drugs.            Though

Melkowski later testified that he acted as he did out of concern for Payne's safety should

he ingest the drugs, Payne was released and allowed to walk away without receiving

medical attention.

      Throughout the encounter with Payne, Melkowski used profanity frequently,

including epithets directed at Payne after he was released from custody. These included

"All we did was save your ass;" "Why the hell you treat us like we are f****** stupid;"

"Treating us like we're assholes;" "Make me sick;" and "Keep your f****** mouth shut."

      Less than an hour after being released, Payne filed a complaint against Melkowski

with the Office of Community Complaints.          Payne alleged that Melkowski used

excessive force by shoving a night stick into the front of his mouth and by sticking a pen

into his mouth. An Internal Affairs Unit investigation was conducted.

      The Internal Affairs Unit generated a report after completing its investigation that

included all of the statements that had been taken. The report was presented to the four

officers in Melkowski's chain of command. After reviewing the report, each officer

recommended that Melkowski be terminated for violating Department policies. Kansas

City Chief of Police James Corwin ("Chief Corwin") independently reviewed the report

and recommended termination, subject to review by the Board ("Charges and

Specifications"). The Charges and Specifications charged Melkowski with violating

Department Personnel Policy 201-7 ("Policy 201-7"), specifically the Code of Ethics

provisions and Rules of Conduct paragraphs 1, 9, 12, 44, 58, 59, and 60. The Charges

and Specifications specified two counts of misconduct: count one, alleging that

                                            4
Melkowski used profanity and unnecessary force on Payne, a handcuffed subject; and

count two, alleging that Melkowski had previously received a 15-day suspension for

discourtesy and unnecessary force involving a different handcuffed subject in 2005.

      Paragraph B of Policy 201-7's Code of Ethics, titled Performance of Duties of

Police Officers, states that "[a]ll citizens will be treated equally with courtesy,

consideration, and dignity. Officers will never allow personal feelings, animosities, or

friendships to influence official conduct." Paragraph D of the Code of Ethics, titled Use

of Force, provides:

      Police officers will never employ unnecessary force or violence and will
      use only such force in the discharge of duty as is reasonable in all
      circumstances. While the use of force is occasionally unavoidable, police
      officers will refrain from applying the unnecessary infliction of pain or
      suffering and will never engage in cruel, degrading, or inhuman treatment
      of any person.
Paragraph 1 of Policy 201-7's Rules of Conduct provides that "[m]embers will read and

maintain all current department Procedural Instructions, Personnel Policies, and other

written directives issued to them." Paragraph 9 states that "[m]embers will conduct

themselves with dignity, courtesy, and efficiency." Paragraph 12 states that "[m]embers

will not use uncivil, harsh, profane, or vulgar language, even under great provocation."

Paragraph 44 states that "[m]embers are prohibited from the use of unnecessary force or

abuse of prisoners or other persons." Paragraphs 58, 59, and 60 provide:

      58. Members will maintain a satisfactory level of performance during the
      term of their appointment as members of the department. Any member
      whose conduct record demonstrates an inability or unwillingness to
      maintain a satisfactory level of performance in the administration of his or
      her office may be subject to disciplinary action for such conduct which
      affects the rights and interests of the public.

                                           5
       59. Members, on or off duly, shall not engage in any conduct or commit
       any disorder or neglect to the prejudice of good order and discipline of the
       department, or engage in any conduct of a nature to bring discredit upon the
       member or the department, or engage in any conduct unbecoming a
       member of the department. Conduct unbecoming a member of the
       department shall include any conduct which adversely affects the morale or
       efficiency of the department and any conduct which has a tendency to
       adversely affect, lower, or destroy public respect and confidence in the
       department or its members.

       60. Members are further charged with the duty to conduct themselves at all
       times in keeping with the Code of Ethics and the policy statements of the
       Chief of Police; all activity contrary to this concept, whether or not
       specifically mentioned or prohibited in these rules, may subject members to
       disciplinary action.

       In response to the Charges and Specifications, Melkowski requested a hearing in

front of a hearing officer.    Melkowski argued that he had not violated Department

policies because his use of force complied with Legal Bulletin 99-5. Legal Bulletin 99-5

is dated July 15, 1999. It identifies its subject as: "Force Reasonable to Prevent a Suspect

From Swallowing Drugs." It was prepared by: "Dale H. Close, Legal Advisor." It shows

distribution to: "All Law Enforcement Personnel; All Civilian Personnel; and All

Department Elements," with a directive that it be posted "on all bulletin boards for two

weeks." It's stated purpose was: "to provide officers with information and guidance

concerning the force reasonable to prevent a suspect from swallowing drugs," and

mentions that "Department Procedural Instruction 96-11 briefly addresses this issue,

noting only 'exigent circumstances, such as the suspect placing illegal narcotics or

contraband into their mouth, do not require obtaining a search warrant due to the

probability of the subject swallowing the evidence requires the need for immediate


                                             6
action.'" Legal Bulletin 99-5 then summarizes cases where courts have been asked to

determine whether an officer's efforts to retrieve drugs that are being ingested constitute

an unreasonable search and seizure that violates the Fourth Amendment.

       Melkowski did not testify that he had ever seen Legal Bulletin 99-5 prior to his

encounter with Payne. He nonetheless argued that Legal Bulletin 99-5 supplemented the

Department's personnel policies regarding use of force, and that his conduct conformed to

the conduct described in the cases summarized in the legal bulletin.

       The hearing officer recommended that Melkowski receive probation on

January 27, 2011.     On June 26, 2012, the Board reviewed the hearing officer's

recommendation and heard additional argument from counsel. The parties waived the

opportunity to present additional evidence and submitted the case to the Board on the

existing record. After reviewing testimony, argument, the videotape of the incident, and

the investigation report, the Board issued its Findings of Fact, Conclusions of Law and

Order on July 17, 2012 ("Order"), terminating Melkowski's employment.

       In its Order, the Board concluded that "[s]ubstantial testimony and the videotape

in this case demonstrate that [Melkowski] used excessive force and unnecessary profanity

and engaged in cruel, degrading, or inhumane treatment during the stop of [Payne] in

violation of Department policies." The Board also concluded that Chief Corwin "met his

burden of proof by a preponderance of the evidence adduced at the hearing that

[Melkowski] violated Personnel Policy 201-07 and the subparts under which he has been

charged."



                                            7
      Melkowski appealed the Order to the Circuit Court in Clay County, Missouri,

which affirmed the decision of the Board. Melkowski timely appealed to this court.

                                  Standard of Review

      "On appeal, we review the decision of the Board, not that of the circuit court."

Trusler v. Tate, 941 S.W.2d 794, 797 (Mo. App. W.D. 1997). "Our review is limited to

determining whether the Board's decision was constitutional; was within the Board's

statutory authority and jurisdiction; was supported by competent and substantial evidence

upon the whole record; was authorized by law; was made upon lawful procedure with a

fair trial; was not arbitrary, capricious or unreasonable; or was a proper exercise of

discretion." Spencer v. Zobrist, 323 S.W.3d 391, 396 (Mo. App. W.D. 2010) (citing

Lagud v. Kansas City Bd. of Police Comm'rs, 136 S.W.3d 786, 791 (Mo. banc 2004));

section 536.140.2. "This Court must look to the whole record in reviewing the board's

decision, not merely at that evidence that supports its decision." Coffer v. Wasson-Hunt,

281 S.W.3d 308, 310 (Mo. banc 2009). "If the evidence permits either of two opposing

findings, deference is afforded to the administrative decision." Id. "We, however, do not

defer to the Board's decision on questions of law." Spencer, 323 S.W.3d at 397.

                                        Analysis

      Melkowski argues that the Board erred in terminating his employment because:

(1) it arbitrarily and capriciously failed to consider Legal Bulletin 99-5; (2) it lacked

cause for termination as a matter of law because unless Legal Bulletin 99-5 is considered,

Department policies describing use of force are vague; (3) it exceeded its jurisdiction by

terminating him in reliance on a personnel policy that was not identified in the Charges

                                            8
and Specifications; and (4) substantial and competent evidence on the whole record does

not establish cause for his termination because his actions complied with Legal Bulletin

99-5. Melkowski's first, second, and fourth points on appeal each presume that the Board

failed to afford due consideration to Legal Bulletin 99-5 and are considered collectively.

                               Points One, Two and Four

       "Section 84.600 . . . governs the discharge, removal, and discipline of police

officers in Kansas City." Schnell v. Zobrist, 323 S.W.3d 403, 410 (Mo. App. W.D.

2010). Non-probationary police officers are "subject to discharge or removal only for

cause." Section 84.600. "[T]he term 'for cause' means 'legal cause' [that] specifically

relates to and affects the administration of the office, and must be restricted to something

of a substantial nature directly affecting the rights and interests of the public." Schnell,

323 S.W.3d at 410 (quoting McCallister v. Priest, 422 S.W.2d 650, 657 (Mo. banc

1968)).

       The Board terminated Melkowski for violation of Policy 201-7 and the subparts

thereof identified in the Charges and Specifications. Melkowski does not contest any of

the Board's factual findings regarding his conduct during his interactions with Payne.

Melkowski thus does not contest that Melkowski grabbed Payne's Adam's apple; that

while Payne's torso was bent over the hood of the patrol car, Melkowski had his hand

around Payne's throat and was pulling his hair; that Melkowski continued to hold Payne

down on the hood of the patrol car even after releasing his throat; that Melkowski

continued over the next several minutes to order Payne to spit the drugs out using

frequent profanity; that Melkowski turned Payne's face from the camera and deployed his

                                             9
night stick holding it close to Payne's face; that Payne can be heard gagging and begging

Melkowski not to hurt him; that Melkowski was subsequently seen wiping the night stick

off on Payne's hair; that Payne was handcuffed throughout his interactions with

Melkowski; that Toma and Melkowski released Payne after learning he swallowed the

drugs and without insisting that Payne receive medical treatment though Melkowski

claimed he had acted as he did to insure Payne's safety; that the record is "overflowing

with profanity used by [Melkowski] directed toward [Payne];" that Payne filed a

complaint less than an hour after his release; and that Melkowski had been earlier

suspended for excessive force and discourtesy in connection with a handcuffed subject.

      Despite these uncontested factual findings, Melkowski argues it was error to

terminate him for cause because the Board failed to consider Legal Bulletin 99-5.

Melkowski's claims that Legal Bulletin 99-5 was a Department policy or rule, and that so

long as his conduct comported with the legal bulletin, he cannot be found to have used

excessive force.

      Melkowski's assertion is without merit. His premise that the Board did not

consider whether his conduct complied with Legal Bulletin 99-5 is not borne out by the

record. The Board found:

      30.    [Melkowski] relies on Legal Bulletin 99-5 for the proposition that all
      of the tactics he used were lawful. However, there was no testimony or
      other evidence offered that Officer Melkowski had either read or relied on,
      the Bulletin at the time of the encounter with Mr. Payne.
The Board then drew the following legal conclusion:




                                           10
      11.    Irrespective of the content or weight that should be given to Legal
      Bulletin 99-5, the Board finds insufficient evidence that [Melkowski] was
      aware of, or conformed his conduct to, the guidance provided in Bulletin
      99-5 at the time of the incident. As such, the Board need not decide
      whether and to what extent the information contained in the Bulletin
      modifies or supplements departmental policy.
(Emphasis added.) Melkowski's assertion that the Board failed to consider the legal

bulletin is plainly inaccurate.   Rather, the Board expressly found that Melkowski's

conduct did not comport with the legal bulletin.

      Melkowski asserts in his fourth point relied on that substantial and competent

evidence supported a contrary conclusion. He argues that his conduct did comport with

Legal Bulletin 99-5. In making this argument, however, Melkowski observes only the

following:

      [T]he Board correctly found that [Melkowski] did not choke or beat Payne,
      which according to Legal Bulletin 99-5, . . . seems to be the only action
      which is "clearly unreasonable."

Melkowski is correct in noting that the Board found that Melkowski did not "appear to

choke Payne or impair his breathing." [Order, Findings of Fact, paragraph 12]. And

Melkowski is correct that the cases summarized in Legal Bulletin 99-5 suggest that

avoiding behavior that involves choking or beating a suspect enhances the likelihood that

force used will be deemed reasonable under the Fourth Amendment. Those observations

do not equate, however, to a required conclusion that Melkowski's conduct comported

with Legal Bulletin 99-5. The totality of Melkowski's 12-minute encounter with Payne,

all of which was caught on videotape, substantially and competently supports the Board's

conclusion that Melkowski did not comport with Legal Bulletin 99-5. Melkowski's


                                            11
argument to the contrary ignores the cumulative effect of all of his conduct and elects to

spotlight attention on the fact that one aspect of his conduct--his Adam's apple maneuver-

-has been found to be reasonable in Fourth Amendment cases. Melkowski's myopic view

of his conduct is inconsistent with our standard of review, which requires us to examine

the whole record. Coffer, 281 S.W.3d at 310. We cannot conclude on this record that the

Board arbitrarily and capriciously determined that the totality of Melkowski's treatment

of Payne failed to comport with both Legal Bulletin 99-5 and the Department's use of

force policies identified in the Charges and Specifications.

       To this point, it is noteworthy that Melkowski hones in on the Board's finding that

he did not choke or impair Payne's breathing but ignores (and does not challenge) the

Board's remaining use of force findings regarding Melkowski's treatment of Payne

(summarized, supra). Nor does Melkowski contest that he violated paragraph 12 of

Policy 201-7, which prohibits the "use of uncivil, harsh, profane, or vulgar language,

even under great provocation."         And Melkowski does not challenge the Board's

determination that Melkowski violated paragraph 58 of Policy 201-7 which requires

members to "maintain a satisfactory level of performance during the term of

appointment," and notes that "[a]ny member whose conduct record demonstrates an

inability or unwillingness to maintain a satisfactory level of performance in the

administration of his or her office may be subject to disciplinary action. . . ."

       "[W]e presume that the agency's decision is correct, and the burden to show

otherwise is placed on the party challenging the decision." Ringer v. Missouri Dept. of

Health & Senior Services, 306 S.W.3d 113, 114 (Mo. App. W.D. 2010). To sustain this

                                              12
burden, Melkowski must successfully challenge each basis for his termination found by

the Board. See Indep. Living Ctr. of Mid MO, Inc. v. Dep't of Soc. Services, MO

HealthNet Div., 391 S.W.3d 52, 58 (Mo. App. W.D. 2013) (appellant's failure to

challenge the alternative violations found by the agency is fatal to its appeal); City of

Peculiar v. Hunt Martin Materials, LLC, 274 S.W.3d 588, 590–91 (Mo. App. W.D.

2009) (holding that to establish grounds for reversal, an appellant must challenge all

grounds on which the trial court ruled against it); Houston v. Roadway Express, Inc., 133

S.W.3d 173, 178 (Mo. App. S.D. 2004) (express and implicit findings left unchallenged

on appeal resulted in waiver of claim of non-liability).

       Because the Board did consider Legal Bulletin 99-5 and found that Melkowski's

conduct did not comport with the bulletin, because the record viewed in its totality

demonstrates that the Board's finding that Melkowski violated the Department's use of

force policies is not arbitrary and capricious, and because Melkowski fails to challenge

each basis for termination found by the Board, points relied on one, two, and four are

denied.

                                       Point Three

       In his third point on appeal, Melkowski argues that the Board exceeded its

jurisdiction because it relied on Personnel Policy 07-4 as a basis for its decision to

terminate him even though that policy was not cited in the Charges and Specifications.

       "An administrative agency enjoys no more authority than that granted by statute."

Termini v. Missouri Gaming Comm'n, 921 S.W.2d 159, 161 (Mo. App. W.D. 1996). As

stated above, "[s]ection 84.600 . . . governs the discharge, removal, and discipline of
                                             13
police officers in Kansas City." Schnell, 323 S.W.3d at 410. Section 84.600 provides in

pertinent part:

       [Officers shall] be subject to discharge or removal only for cause and upon
       complaint being made or charges being preferred against them, . . .
       which complaint or charges setting forth the ground thereof . . . and the
       [B]oard after hearing the charges shall take a vote of yeas and nays to be
       entered upon the records whether or not the charges have been sustained
       and what punishment, if any, shall be imposed. If the charges are found by
       the [B]oard to be sustained by the evidence, the [B]oard may remove such
       policemen or police officers, or the [B]oard may, instead of removal,
       suspend, reprimand or impose a fine upon the policemen or police officers.
       ...
       Melkowski argues that the "charges" referred to in section 84.600 are limited to

the charges levied in the Charges and Specifications. Melkowski argues that the Board

referred to, and thus relied on, Personnel Policy 07-4 in its Order even though the

Charges and Specifications make no reference to Personnel Policy 07-4.

       It is true that the Board's Order refers to Personnel Policy 07-4. In its findings of

fact, the Board finds:

       25.    The Charge [sic] and Specifications filed on June 26, 2007, alleged
       that [Melkowski] violated department policies. Personnel Policy 201-7,
       Code of Ethics and Rule of Conduct, Section III, paragraphs 1, 9, 12, 44,
       58, 59, and 60 and Personnel Policy 07-4, "Use of Force."
       ....
       29.    Personnel Policy 07-4, Use of Force, Paragraph III states: "Members
       shall not engage in cruel, degrading, or inhuman treatment of any person."
It is also true that the Charges and Specifications do not mention Personnel Policy 07-4 in

the section entitled "Charges" where the policies alleged to have been violated are

itemized.



                                            14
      Though we agree with Melkowski that the Board's Order mistakenly finds that the

Charges and Specifications included reference to Personnel Policy 07-4, we do not agree

that the Board terminated Melkowski based on a finding that his conducted violated

Personal Policy 07-4. The Board's Order concludes, as a matter of law, that "the Chief

has met his burden of proof by a preponderance of the evidence adduced at the hearing

that [Melkowski] violated Personnel Policy 201-7 and the subparts under which he has

been charged." [Order, Conclusions of Law, paragraph 9]. Thus, though the Board's

discussion of Personnel Policy 07-4 in the Order's factual findings creates unnecessary

confusion, the Board's legal determination to terminate Melkowski was plainly based on

only those charges identified in the Charges and Specifications.

      It is also relevant to note that the Board's reference to Personnel Policy 07-4 in its

factual findings cites to the policy's directive that officers shall not "engage in cruel,

degrading, or inhuman treatment of any person." [Order, Findings of Fact, paragraph

29]. This same language is duplicated in the Code of Ethics for Policy 201-7, violation of

which was expressly referenced in the Charges and Specifications. Subsection D of the

Code of Ethics addresses the use of force and provides, in pertinent part, that officers

"will never engage in cruel, degrading, or inhuman treatment of any person." Thus, even

were we to conclude (which we do not) that the Board improvidently terminated

Melkowski for violation of Personnel Policy 07-4, the Board's determination that

Melkowski also violated the Code of Ethics for Personnel Policy 201-7 would render the

Board's error harmless.

      Point relied on three is denied.

                                            15
                                       Conclusion

      The Board's Order is affirmed.



                                         __________________________________
                                         Cynthia L. Martin, Judge


All concur




                                          16
