This is a repost of an earlier comment...
If you want to know the charcter of some of the people who are posting to the Overlandchat website here is the background on one of the members of that site...
with special thanks to Guy Fawkes for bringing this to my attention...
like I said I don't make false accusations I just post court records and let them speak for themselves...
Before the
Administrative Hearing Commission
State of MissouriDIRECTOR OF DEPARTMENT
OF PUBLIC SAFETY, Petitioner,
vs.
No. 99-0332 PO VERNON J. FETSCH, Respondent.
FINDINGS OF FACT AND CONCLUSIONS OF LAW The Director of the Department of Public Safety (Director) filed a complaint on February 9, 1999, seeking this Commission’s determination that the peace officer certificate of Vernon J. Fetsch is subject to discipline for gross misconduct indicating an inability to function as a peace officer.
This Commission convened a hearing on the complaint on November 1, 1999. Assistant Attorney General Wade Thomas represented the Director. Donald E. Becherer represented Fetsch.
The parties waived the opportunity to file written briefs. The matter became ready for our decision when the reporter filed the transcript on December 3, 1999.
Findings of Fact1. Fetsch holds peace officer Certificate No. ######. That certificate was current and active for approximately 20 years.
2. Fetsch was employed as the chief of police for New Melle, Missouri, from approximately April 1994 until June 1997. As the chief of police, Fetsch issued numerous traffic tickets.
3. Fetsch was employed by TWA airlines from approximately December 1994 until December 1998. Fetsch was normally scheduled to work four hours per night on the midnight shift for five nights per week in ramp services at the airport
4. In December 1997, Fetsch was employed by Radio Shack as a part-time retail salesperson. Fetsch worked as many hours as the store manager, George Lask, would allow.
5. From December 27, 1997, through January 2, 1998, Fetsch was on vacation from TWA. He reported a total of 91 hours of work at Radio Shack for that seven-day period.
6. Fetsch brought to Radio Shack carbon copies of traffic tickets that he issued during his employment at the New Melle Police Department. Fetsch wrote information from the tickets onto a pad of paper. Fetsch and Lask transferred information from the pad of paper to the store’s computer.
7. Radio Shack paid salespersons additional commissions, called spiffs, for selling specific products or services. For each customer that switched to Sprint for long distance telephone service, Radio Shack paid the salesperson an additional $10. For each customer that filled out a credit application, Radio Shack paid the salesperson an additional $1. Radio Shack also paid spiffs if customers purchased cell phones.
8. For the seven-day period from December 27, 1997, through January 2, 1998, Radio Shack paid Fetsch a total of $341 for spiffs. Lask’s spiffs during the same period amounted to $1,400.40. The average amount of spiffs for an employee during that time period was $60.
9. The spiffs for both Fetsch and Lask included purported purchases of Sprint long distance telephone services by individuals who received traffic tickets from Fetsch while he was employed with the New Melle Police Department. However, those individuals never went to the Radio Shack store to sign up for Sprint services.
10. Radio Shack terminated Fetsch’s employment five weeks after it began for long distance conversions that were not authorized by the customers.
11. Fetsch was charged with felony stealing in the Circuit Court of St. Louis County for long distance conversions that were not authorized by customers of Radio Shack. Based on a plea agreement with the prosecutor, Fetsch pled guilty to misdemeanor stealing and received a suspended imposition of sentence with one year of probation.
Conclusions of Law We have jurisdiction to decide whether Fetsch’s peace officer certificate is subject to discipline. Section 621.045. The Director has the burden to show that Fetsch has committed an act for which the law allows discipline. Missouri Real Estate Comm’n v. Berger, 764 S.W.2d 706, 711 (Mo. App., E.D. 1989).
This Commission must judge the credibility of the witnesses, and we have the discretion to believe all, part, or none of the testimony of any witness. Harrington v. Smarr, 844 S.W.2d 16, 19 (Mo. App., W.D. 1992). When there is a direct conflict in the testimony, we must make a choice between the conflicting testimony. Id. Our Findings of Fact reflect our determination of the credibility of witnesses.
The Director alleges that Fetsch’s certificate is subject to discipline for gross misconduct indicating an inability to function as a peace officer. Section 590.135.2 provides in part:
2. The director may refuse to issue, or may suspend or revoke any diploma, certificate or other indicia of compliance and qualification to peace officers . . . issued pursuant to subdivision (3) of subsection 1 of this section of any peace officer for the following:
* * *
(6) 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) at 125, aff’d, 744 S.W.2d 524 (Mo. App., E.D. 1988). The term “gross” indicates that either an especially egregious mental state or harm is required for refusal. Id. at 533. Inability is a lack of sufficient power, resources, or capacity. MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 585 (10th ed. 1993). The functions of peace officers 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 State Bd. of Mediation, 690 S.W.2d 400, 403 (Mo. banc 1985)).
Two individuals testified that their long distance service was changed to Sprint without their consent. Both testified that they received traffic tickets from Fetsch when he was employed with the New Melle Police Department. Radio Shack paid Fetsch for one conversion and paid Lask for the other.
Fetsch testified that in his vehicle he had boxes of paperwork from the New Melle Police Department, and that he intended to discard the boxes of paperwork after a water pipe broke in his basement. Fetsch testified that Lask instructed him to pick up merchandise from other stores and, in the meantime, to place the boxes of paperwork outside the back door of the business until the boxes could be taken to the dumpster that night. Fetsch testified that when he returned later, the boxes were gone.
Fetsch argued that there was no direct evidence showing that he entered any of the information from the traffic tickets into the store’s computer. However, another salesperson at Radio Shack testified that he saw Fetsch copying information from a large stack of traffic tickets over to a pad of paper. That salesperson testified that he later saw Fetsch and Lask enter information from that pad of paper into the store’s computer. Fetsch argues that the salesperson’s testimony is not credible because he was convicted of the felony of burglary. However, the salesperson admitted that he committed the crime at age 18 and testified that he had been on probation for three years and was down to minimum supervision. The salesperson testified that Lask offered to let the salesperson participate in what Lask and Fetsch were doing. However, the salesperson refused to participate because he did not want his probation to be revoked.
We find the salesperson’s testimony to be credible. It was corroborated by the testimony of two individuals who received traffic tickets from Fetsch and later had their long distance service changed to Sprint at the Radio Shack store without their consent. We conclude that Fetsch’s conduct is the willful doing of an act with a wrongful intention and with an especially egregious mental state. We conclude that his conduct indicates an inability to function as a peace officer. We therefore conclude that Fetsch’s certificate is subject to discipline for gross misconduct indicating an inability to function as a peace officer pursuant to section 590.135.2(6).
SO ORDERED on January 10, 2000.
________________________________
SHARON M. BUSCH
Commissioner
