☰ Revisor of Missouri


Chapter 36

< > Effective - 28 Aug 2010, 2 histories, see footnote (history) bottom

  36.390.  Right of appeal, procedure, regulation — nonmerit agencies may adopt — dismissal appeal procedure — nonmerit agencies, not adopting, to establish similar system, exceptions. — 1.  An applicant whose request for admission to any examination has been rejected by the director may appeal to the administrative hearing commission in writing within fifteen days of the mailing of the notice of rejection by the director, and in any event before the holding of the examination.  The commission's decision on all matters of fact shall be final.

  2.  Applicants may be admitted to an examination pending a consideration of the appeal, but such admission shall not constitute the assurance of a passing grade in education and experience.

  3.  Any applicant who has taken an examination and who feels that he or she has not been dealt with fairly in any phase of the examination process may request that the director review his or her case.  Such request for review of any examination shall be filed in writing with the director within fifteen days after the date on which notification of the results of the examination was mailed to the applicant.  A candidate may appeal the decision of the director in writing to the administrative hearing commission.  This appeal shall be filed with the administrative hearing commission within fifteen days after date on which notification of the decision of the director was mailed to the applicant.  The commission's decision with respect to any changes shall be final, and shall be entered in the minutes.  A correction in the rating shall not affect a certification or appointment which may have already been made from the register.

  4.  An eligible whose name has been removed from a register for any of the reasons specified in section 36.180 or in section 36.240 may appeal to the administrative hearing commission for reconsideration.  Such appeal shall be filed in writing with the administrative hearing commission within fifteen days after the date on which notification was mailed to the eligible.  The commission, after investigation, shall make its decision which shall be recorded in the minutes and the eligible shall be notified accordingly by the director.

  5.  Any regular employee who is dismissed or involuntarily demoted for cause or suspended for more than five working days may appeal in writing to the administrative hearing commission within thirty days after the effective date thereof, setting forth in substance the employee's reasons for claiming that the dismissal, suspension or demotion was for political, religious, or racial reasons, or not for the good of the service.

  6.  The provisions for appeals provided in subsection 5 of this section for dismissals of regular merit employees may be adopted by nonmerit agencies of the state for any or all employees of such agencies.

  7.  Agencies not adopting the provisions for appeals provided in subsection 5 of this section shall adopt dismissal procedures substantially similar to those provided for merit employees.  However, these procedures need not apply to employees in policy-making positions, or to members of military or law enforcement agencies.

  8.  Hearings under this section shall be deemed to be a contested case and the procedures applicable to the processing of such hearings and determinations shall be those established by chapter 536.  Decisions of the administrative hearing commission shall be final and binding subject to appeal by either party.  Final decisions of the administrative hearing commission pursuant to this subsection shall be subject to review on the record by the circuit court pursuant to chapter 536.


(L. 1945 p. 1157 § 37, A.L. 1973 1st Ex. Sess. H.B. 8, A.L. 1977 S.B. 98, A.L. 1979 H.B. 673, A.L. 1996 H.B. 1146, A.L. 2005 S.B. 149, A.L. 2010 H.B. 1868)

(1986) This section requires the board to calculate back pay to date of wrongful discharge, but allows board to adjust such backpay by rule of "avoidable consequences" and by an amount for costs and reasonable attorneys' fees.  DeSilva v. Director of Div. of Aging, 714 S.W.2d 690 (Mo.App.).

(1988) Attorney general was authorized to terminate an assistant attorney general at any time and was not required to adopt a postdischarge hearing procedure.  Where more than one statute deals with the same subject, the statutes should be harmonized when reasonable but to the extent of any discord between them, the definite prevails. (Mo.App.) Wood v. Webster, 772 S.W.2d 1.

(1995)  Secretary of state is an administrative officer of the state and is authorized by law to make rules and to adjudicate contested cases.  Where agency is not defined for purposes of this chapter, court looked to definitions in chapter 536, RSMo, the administrative procedures act, and found the secretary of state's office is a state agency and is required to establish procedures for dismissals of nonmerit employees in compliance with procedures for dismissal of merit employees or to adopt similar appeal procedures.  Laws v. Secretary of State, 895 S.W.2d 43 (Mo. App. W.D.).

(1996) Secretary of State's office is an agency within the meaning of this section.  Pace v. Moriarty, 83 F.3d 261 (8th Cir.).

---- end of effective  28 Aug 2010 ----

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