David Matusik vs. Lake Ozark Fire Protection District

DAVID MATUSIK, ) ) Respondent, ) WD88004 ) v. ) OPINION FILED: ) LAKE OZARK FIRE PROTECTION ) March 3, 2026 DISTRICT, ) ) Appellant. ) ) Appeal from the Circuit Court of Cole County, Missouri Honorable Daniel Green, Judge Before Division Three: Karen King Mitchell, Presiding Judge, Lisa White Hardwick, Judge, and Janet Sutton, Judge A disciplinary proceeding was initiated against David Matusik, an employee of the Lake Ozark Fire Protection District (the District). Following a hearing, the Lake Ozark Fire Protection District Board of Directors (the Board) terminated Matusik's employment. Matusik filed a petition for judicial review pursuant to 536.100 1 in the Cole County Circuit Court (circuit court). The circuit court reversed the Board's decision terminating Matusik's employment, remanded the case back to the District, and ordered that Matusik be reinstated. The District appeals. We conclude that the Board's decision terminating Matusik's employment is lawful, is supported by

1 Statutory citations are to the Missouri Revised Statutes (2016).

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competent and substantial evidence, and is not arbitrary and capricious. Therefore, we reverse the circuit court's judgment and remand this matter with directions for the circuit court to reinstate the Board's decision terminating Matusik's employment. Factual and Procedural Background Matusik was hired by the District in 2008 as a firefighter and he has held additional positions with the District as training officer, interim fire chief, interim deputy chief of operations, and, his current position, battalion chief. As a battalion chief, Matusik's job duties included managing the day-to-day activities of shift personnel in emergency and non-emergency settings, making shift assignments, and performing other duties as assigned by Fire Chief and Deputy Fire Chief. The District and the International Association of Fire Fighters Local 3987 are parties to a collective bargaining agreement (CBA) effective January 1, 2023, through December 31, 2025. The CBA governs wages, hours, and working conditions for those employees of the District who are members of the bargaining unit. The CBA addresses disciplinary procedures in Article 18. Battalion Chiefs, such as Matusik, are covered by the CBA. Matusik was serving as the interim fire chief when Fire Chief was hired for that position in April 2023. Matusik reverted to his battalion chief rank. When Fire Chief was hired, the Board gave Fire Chief certain goals including improving the District's fiscal plan, and "get[ting] the entire department working in one direction instead of three different fire departments 2 under one roof[.] " In late 2023, two issues—Matusik's use of Aqueous Film Forming Foam (AFFF) during a fire response and a timekeeping issue—prompted Fire Chief to request Deputy Chief to

2 The District has three shifts with one shift working at a time.

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investigate Matusik's conduct. After the investigation, Fire Chief recommended Matusik's termination to the Board. As discussed infra, a contested hearing was held, and the following evidence was adduced during the hearing. AFFF Usage In November 2023, Fire Chief discovered the District was still using AFFF. Most states have prohibited AFFF use. AFFF is primarily used to extinguish flammable liquids and is considered a "forever chemical." On November 11, 2023, in an e-mail marked as high importance and sent to all staff, Fire Chief issued a directive strictly limiting the use of AFFF. Specifically, Fire Chief directed that: the goal should be to NOT utilize the foam on the apparatus unless an absolute life safety issue exists. . . . I have confirmed that OBFPD [Osage Beach Fire Protection District] has already made the transition long ago to a safer alternative, so if no life safety issue exists, and foam is needed, the best option may be to wait or special call for OBFPD if they're not already on the call as a box assignment. That decision will be left up to the company officers and/or BCs based on the situation your [sic] faced with at the time. (emphasis added). Fire Chief testified that he believed a "life safety issue" to be a firefighter or citizen "in trouble" that needed "extract[ion]." In the same November 11, 2023, e-mail, Fire Chief informed all staff that the District was working to safely remove and dispose of its AFFF. The District's plan to dispose of the AFFF and replace it with an alternative product was also discussed at a labor management meeting on November 14, 2023, which Matusik attended. Less than two weeks later, on November 24, 2023, Matusik and his shift responded to a rekindled fire. The fire had spread to two homes beyond the initial involved home. The OBFPD was also present at the scene. Matusik testified that it was a "wind driven" fire and that there was limited manpower and water supply on the scene. Matusik decided to use the AFFF at the fire. After, Matusik informed Fire Chief that he had decided to use the AFFF and Fire Chief directed Matusik to document everyone who was exposed to the foam as it is a potential cancer-

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causing agent. Matusik completed an incident report regarding his use of the AFFF, but he did not include any justification for why he did so. Fire Chief also t hen needed to contact the Department of Natural Resources and the Division of Fire Safety to report the use of the AFFF. After Fire Chief reviewed the scene and the information, he was concerned about Matusik's decision to use the AFFF. Fire Chief concluded that the foam's use had created a safety hazard for those who were exposed to it including District personnel, personnel from other responding fire protection districts, and the homeowners, that the foam had runoff into the lake which could cause additional environmental issues, and that there was no justification for using the foam. Timekeeping Issue As a battalion chief, one of Matusik's job duties was staffing, which included making changes to an employee's leave status in the District's timekeeping software and approving time cards. Matusik was also in charge of scheduling an employee's request for leave in the timekeeping software and was also tasked with ensuring that staffing needs were adequately met. The District's firefighters are able to substitute or trade shifts with one another but they are paid for their original shift date and not the shift actually worked. In early December 2023, a different battalion chief and Matusik agreed to a duty trade, or swapping/substituting shifts. Matusik agreed to work for the other battalion chief on December 9th with the other battalion chief working for Matusik on a later date. Therefore, Matusik was not going to receive additional pay for working on December 9th. Subsequently, the other battalion chief had a death in his family with the funeral taking place on December 8th. The other battalion chief had been scheduled for December 9th off as part of the duty trade and for a vacation day on the 10th. On December 7, 2023, the other battalion chief informed Fire Chief that he would be leaving his

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trade day and vacation day in place for December 9th and 10th. However, on December 8th, the other battalion chief asked Matusik to change his time in the District's timekeeping software to funeral leave time for December 9th. By changing the shifts to funeral leave, the December 9th shift now constituted an overtime assignment that would have to be posted for a District battalion chief to fill. Matusik was the only battalion chief available to fill the assignment. Matusik called the shift out for overtime, waited fifteen minutes, and then accepted the shift with the increased overtime compensation. As a result of converting the duty trade to funeral leave, Matusik went from not receiving pay for the shift to receiving overtime at time and one half his regular hourly rate of pay, earning approximately $1,250.00. In addition, the other battalion chief did not have to use any "banked" time for his time off. On December 8, 2023, Fire Chief noticed the call for overtime go out for the December 9th shift. Fire Chief investigated the issue and determined Matusik had changed the other battalion chief's time off on December 9th to funeral leave from its previous designation of trade and vacation time. Matusik did not have approval from a superior to switch the time off to funeral leave and did not find out if the other battalion c hief had received approval. In fact, neither Fire Chief nor Deputy Fire Chief had approved the conversion. Fire Chief testified there was a $6,000.00 overall negative financial impact on the District due to this situation. According to Fire Chief, Matusik knew that he needed to request approval from a superior to approve the other battalion chief's funeral time or ensure that the time had been approved. Fire Chief believed this because Matusik had taken funeral time in the past and that past precedent had established the rule. In a sworn statement dated December 13, 2023, Matusik took the position that he "assumed" the change had been approved.

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Disciplinary Proceedings Fire Chief submitted a written recommendation to the Board to terminate Matusik's employment. Fire Chief's recommendation specifically referenced the timekeeping issue but also alleged that Matusik had been insubordinate in situations leading up to the timekeeping event. In that recommendation, Fire Chief stated that Matusik had contributed to a disruptive environment within the administrative staff including threatening insubordination with regards to disobeying a working out of class directive, insubordinate speech and behavior during a meet and confer session, and disobeying Fire Chief's order to not use AFFF unless a life safety issue was present. The Board held an informal meeting with Matusik and Fire Chief in early February

1. Before the hearing, Matusik submitted a written response to Fire Chief's recommendation

including a detailed reply to each of the allegations against him. With respect to the timekeeping allegation, Matusik stated that changing the leave status to funeral leave did not need to be approved by a Deputy Chief or Fire Chief prior to the change, that he did not violate any policy or procedure, that his actions were consistent with longstanding District policy, and that he did not receive a financial gain. In response to the allegation that he was insubordinate for using AFFF, Matusik stated that he made the decision on scene to use the AFFF because it was necessary due to the persistent nature of the fire, and that it was done to protect "life and property." Finally, responding to the allegation that he was insubordinate and contributed to a disruptive environment, Matusik stated that he had not been disrespectful and that he never threatened that he would not follow directives. As a result of the informal hearing, the Board concluded a contested hearing was necessary and it issued a notice of hearing. On February 29, 2024, the Board held a formal contested hearing regarding Fire Chief's recommendation. Matusik appeared in person and was represented by counsel, a court reporter

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recorded the proceedings, and all witnesses testified under oath. Matusik heard the evidence submitted against him and cross-examined the District's only witness, Fire Chief. Matusik also testified and presented his own evidence. Regarding his use of the AFFF, Matusik testified they attempted to use water and "different strategies" and that he decided to use the AFFF because it would have been dangerous for firefighters to go inside the building. Matusik testified that he used the AFFF "to keep [the District's] members from being put in a life safety situation." A board member questioned Matusik: [Board Member]: I was just trying to understand. And did you feel that there was an immediate life safety issue? I know you said it would have been a life safety issue to go into the structure. Did you feel prior to making the decision that there was an immediate life safety issue? MR. MATUSIK: Prior to, there was not an immediate life situation that it needed to be done right then and there to save someone's life. Regarding the timekeeping issue, Matusik testified that it had only been a "practice" to notify Deputy Chief or Fire Chief when taking funeral leave. Specifically, as to the other battalion chief's funeral leave request, Matusik testified that he "understood that it was already approved" by Deputy Chief. Then, for the first time during the disciplinary process, Matusik testified that the other battalion chief specifically told him it was approved. Matusik further testified that he followed all rules and procedures related to changing the other battalion chief's pay code. After the hearing, the Board issued its findings of fact and conclusions of law affirming the Fire Chief's disciplinary recommendation and terminating Matusik's employment. First, the Board addressed Matusik's due process, concluding that he was afforded sufficient due process throughout the hearings, noting that he had two separate hearings to hear the allegations against him, and that he filed an answer to the charges, evidencing an understanding of the claims related

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to his use of the AFFF and his changing of the other battalion chief's annual leave to funeral leave. The Board concluded that Matusik had enough information concerning the issues to defend against the allegations, present rebuttal evidence, and that he was given an opportunity to be heard at a meaningful time and in a meaningful manner. Turning to the merits, the Board concluded there was just cause to terminate Matusik's employment, finding that Matusik failed to adhere to District expectations on the two at-issue occasions: the use of the AFFF and the timekeeping issue. With respect to his use of the AFFF, the Board found that Matusik was aware of Fire Chief's order regarding the use of AFFF and knew that use of the foam without a life safety emergency was prohibited. The Board also discounted Matusik's testimony that Fire Chief's order gave him discretion to use AFFF because the only discretion afforded was if there was a life safety issue. The Board concluded that the evidence did not support a finding that any person's life was in danger and that Matusik had other options available to him to fight the fire. The Board found Matusik's decision to use the AFFF contradicted a direct order and was not supported by the facts. Regarding the timekeeping issue, the Board found that Matusik knew that supervisory approval was required for funeral leave, noting that Matusik himself had previously sought approval for the use of funeral leave, that past practice instructed that approval was necessary, and that Matusik changed the leave time without approval from a supervisor. The Board found that Matusik "went from working a shift for which he would not receive compensation (because it was trade time), to earning overtime compensation at the rate of time and one-half for 24 hours. He worked the same shift he already agreed to work but now earned almost $1,250.00." The Board also acknowledged that "[i]f employees of the same rank can change their time, which directly affects wages, the potential for abuse grows. The oversight that is realized by

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having a superior approve a time change removes manipulation of wages and protects the District's assets." The Board found that a common theme " connecting the two incidents supporting the disciplinary recommendation" was Matusik's reliance on his sole judgment and his refusal to seek permission or guidance from superiors, and that it was especially "troubling" combined with Matusik's lack of contrition. Given its findings, the Board concluded that Matusik's actions constituted insubordination and showed a serious lapse in judgment. It noted that Article 18.4 of the CBA places discretion with the District's supervisors concerning evaluating offenses and the severity of discipline to be imposed. The Board determined that Matusik's actions were worthy of discipline and the penalty recommended by Fire Chief was neither unreasonable nor arbitrary. The Board affirmed the disciplinary recommendation and terminated Matusik's employment. Matusik then filed his Petition for Judicial Review of the Board's decision under section 536.100 in the circuit court. After briefing and argument, the circuit court issued a judgment reversing the Board's decision to terminate Matusik's employment, remanded the case, and ordered Matusik be reinstated. The District filed its notice of a ppeal to this Court. This is a contested case in which we review the Board's decision rather than the circuit court's judgment, and therefore, the briefing order has been reversed under Supreme Court Rule 84.05(e) 3 and Western District Rule 35. See State ex rel. Starr v. Bd. of Trs. for Firefighters' Pension Sys. of City of Kansas City, 707 S.W.3d 835, 843 (Mo. App. W.D. 2025). "Thus, while the party aggrieved by the circuit court's decision files the notice of appeal, the party aggrieved by the agency's decision files the appellant's brief, and bears the burden to show that the agency erred in the first instance."

3 All rule references are to Missouri Court Rules (2025).

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Casnocha-Jones v. State Bd. of Nursing, 686 S.W.3d 695, 704 (Mo. App. W.D. 2024). Therefore, as the party aggrieved by the agency's decision, Matusik filed the appellant's brief and has the burden of persuasion to show that the agency erred. Additional facts relevant to the disposition of the appeal are included below as we discuss Matusik's points on appeal. Standard of Review "In an appeal following judicial review of an administrative agency's decision in a contested case, this court reviews the agency's decision and not the circuit court's judgment." Pro. Fire Fighters of E. Mo., Int'l Ass'n of Fire Fighters, Loc. 2665 v. City of Richmond Heights, 680 S.W.3d 134, 142 (Mo. App. W.D. 2023) (citation omitted). We presume that the agency's decision is correct, and the party challenging the decision has the burden to show otherwise. Hallam v. Mo. Dep't of Soc. Servs., 564 S.W.3d 703, 706 (Mo. App. W.D. 2018). Judicial review—including appellate review—of an agency's decision in contested cases is governed by section 536.140. An agency decision will be upheld unless it is: " (1) in violation of constitutional provisions; (2) in excess of the agency's statutory authority or jurisdiction; (3) unsupported by competent and substantial evidence upon the whole record; (4) unauthorized by law; (5) made upon unlawful procedure or without a fair trial; (6) arbitrary, capricious, or unreasonable; or (7) involves an abuse of discretion." Hauck v. Police Ret. Sys. of St. Louis, 721 S.W.3d 150, 156-57 (Mo. App. E.D. 2025); § 536.140.2. "We must look to the whole record in reviewing the [ agency's] decision, not merely at that evidence that supports its decision, and we no longer view the evidence in the light most favorable to the agency's decision." Starr, 707 S.W.3d at 843. A reviewing court will not second-guess the agency's credibility determinations and we defer to the agency's

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determinations on the weight of the evidence and credibility of the witnesses. Stock v. Policemen's and Firemen's Ret. Fund of City of Richmond Heights, 712 S.W.3d 40, 47 (Mo. App. W.D. 2025). See also Stone v. Mo. Dep't of Health & Senior Servs., 350 S.W.3d 14, 20 (Mo. banc 2011). "[W]hen the evidence before an administrative body would warrant either of two opposed findings, the reviewing court is bound by the administrative determination, and it is irrelevant that there is supportive evidence for the contrary finding." Stock, 712 S.W.3d at 47 (citing Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 629 (Mo. banc 2012)). Analysis Point One In his first point, Matusik argues that the District erred in terminating his employment because the Board's decision was unlawful in that there was not just cause for his termination. Specifically, Matusik argues that he did not have forewarning of the possible disciplinary consequences of his conduct, that the Board ignored its own policies and a progressive discipline policy that he claims was set forth in the CBA, and that the degree of discipline was not commensurate with the misconduct and his employment record. The relevant provisions in the CBA addressing the disciplinary process are contained in Article 18. Under Article 18.1 of the CBA, the District has the right to discipline for "just cause" and it provides that due process will be accorded to all employees. Pursuant to Article 18.2, collective bargaining unit employees are required to "adhere to the District's Administrative Policies, Standard Operating Guidelines, any Collective Bargaining Agreement, if applicable, and any properly issued order or directive by a higher-ranking employee (hereinafter collectively referred to as "Rules")." Moreover, employees may be disciplined for "improper conduct,

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deficient work performance, or violation of the Rules." In Article 18.4, the CBA specifically states: The District does not attempt to define what actions may result in discipline or the severity of discipline for each action. Instead, the District relies on the discretion of the supervisors. They are in the best position to evaluate an alleged offense, decide if discipline or some other form of corrective action is necessary, and determine the severity of the discipline, if applicable. The CBA provides that discipline can include a verbal or written reprimand, suspension with loss of pay, demotion, and dismissal. There is no requirement that "all discipline begin with a verbal reprimand," instead providing that "[e]ach situation will be reviewed on a case-by-case basis. . . . [and] [t]he nature and severity of the offense and the employee's prior record will be considered." The CBA does not define " just cause," and, "just cause" has not been generally defined in Missouri caselaw. 4 See Superior Gearbox Co. v. Edwards, 869 S.W.2d 239, 244 (Mo. App. S.D. 1993); Roach v. Consolidated Forwarding Co., 665 S.W.2d 675, 680 (Mo. App. E.D. 1984). "'Just cause' in the context of collective bargaining agreements is a term of art which has developed its meaning through labor arbitration hearings." Int'l Bhd. of Elec. Workers Loc. Union No. 53 v. City of Independence, 582 S.W.3d 153, 158 (Mo. App. W.D. 2019) ( quoting Roach, 665 S.W.2d at 680). This Court has recognized, in the context of a CBA, that an employee's misconduct may be sufficiently serious that it justifies "summary discharge" without requiring progressive discipline; however, when the employee's conduct is less egregious, a less severe punishment is called for. Id. at 158.

4 In his argument on appeal, Matusik uses a seven factor just cause test, originally created by Arbitrator Carroll Daugherty in the 1960s and used by labor arbitrators, to support his argument that the District did not have just cause to terminate his employment. This test examines seven factors to determine whether just cause exists for terminating employment. Matusik cites no Missouri case that has applied this test or even mentioned it, and we decline his invitation to utilize it in this case.

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Additionally, we are guided by Roach, where an individual employed under a collective bargaining agreement allowing for discharge only for "just cause" challenged his dismissal, and the Court determined the following definition of "just cause" in a jury instruction to be proper: [It is] a real cause or basis for dismissal as distinguished from an arbitrary whim or caprice—that is, a cause or ground that a reasonable employer, acting in good faith under the collective bargaining agreement here in question, would regard as good and sufficient reason for terminating the services of an employee. Roach, 665 S.W.2d at 679 n.2. "A related rule of law is that an employer has the right to dismiss an employee who is guilty of insubordination . . . '[i]n every contract of employment it is implied that the employee will obey the lawful and reasonable rules, orders and instructions of the employer, and disobedience of such known rules justify the employee's discharge.'" Superior, 869 S.W.2d at 244 (quoting Craig v. Thompson, 244 S.W.2d 37, 41 (Mo. banc 1951)). Finally, "the law leaves the severity of [the] discipline to the sound discretion of the Board, which is better equipped than the courts to determine the gravity of the infraction and the appropriate sanction." Johnson v. Mo. Bd. of Nursing Adm'rs, 130 S.W.3d 619, 643 (Mo. App. W.D. 2004) (citing KV Pharm. Co. v. Mo. State Bd. of Pharmacy, 43 S.W.3d 306, 310 (Mo. banc 2001)). With these principles in mind, we turn to whether the Board had just cause to terminate Matusik's employment. We conclude that it did based on Matusik's use of the AFFF at the November 24, 2023, fire, and his changing of the other battalion chief's time from an accrued leave status to a district funded status (funeral leave), without approval by a supervisor. First, on November 24, 2023, Matusik disobeyed Fire Chief's direct order regarding the use of AFFF. Matusik's actions in defying this order violated Article 18.2 of the CBA which required him to adhere to Fire Chief's properly issued directive regarding the use of AFFF.

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Matusik was the highest-ranking officer at the November 24 fire and the decision to use the foam was solely his, a fact Matusik does not dispute. Matusik's decision to use the foam directly disregarded and violated Fire Chief's order because his justification for using the foam did not comply with the order. While it is correct that Fire Chief's order gave him the discretion to use the foam, its use was permitted only if a life safety issue existed. There was no evidence that anyone's life was in danger. Further, Matusik's explanation for why he thought the use of the AFFF was justified has shifted over time. Matusik testified at the contested hearing that it would have been dangerous if firefighters were in the structure. But, in his earlier January 30, 2024, response to Fire Chief's disciplinary recommendation, Matusik wrote that "the weather conditions were such that the fire presented a danger to surrounding homes" and that he used the AFFF for the "purpose of protecting life and property." As the Board noted in its decision, "[p]otential property damage was not an exception to [Fire Chief's] order." The Board noted that Matusik had other options available to him at the November 24 fire. First, the Board found that Matusik could have continued to battle the fire with water, and that the Board understood that it would have taken more time to put out the fire this way. Critically, the Board found that Matusik chose to use the AFFF because it was faster, and not because a life safety issue was present. We will not second-guess this credibility determination. Stock, 712 S.W.3d at 47. Second, the Board also noted that Fire Chief's November 11 e-mail specifically referenced the OBFPD having a safe foam alternative, that the OBFPD was assisting the District's efforts at the November 24 fire, and Matusik could have requested that OBFPD use its safer alternative to the AFFF, but there was no indication that Matusik inquired as to this safer solution. Third, Matusik could have contacted Fire Chief or Deputy Fire Chief and asked for

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permission or guidance about using the AFFF. Matusik's actions, which he attempted to justify during the disciplinary process with hypotheticals, created a "real hazard that [Fire Chief's] order was specifically d esigned to avoid." Finally, as Fire Chief testified and as the District found, by using the AFFF, Matusik jeopardized the health and safety of District personnel, personnel of the other fire protection districts that were part of the mutual aid response, and the homeowners of the affected property. There was also an environmental impact to the property and the lake from the run-off, leading to contamination issues. Next, we turn to the allegation that Matusik was insubordinate in relation to the timekeeping issue. Put simply, Matusik changed another battalion chief's time from an accrued leave status to a district funded status (funeral leave), without supervisor approval. As the Board found, the "actual changing of the time in the District's computer system is not the issue. The real issue is that a superior officer must approve the leave." Matusik, however, did not seek approval from a superior officer before changing the other battalion chief's time to funeral leave. Even if the CBA or other written policy does not specifically reference the need for approval from a superior, past practice at the District instructs that said approval is necessary. As Fire Chief testified at the hearing, the past practice at the District was for funeral leave to be approved by a superior officer—at a higher level than the requesting employee and not the same level as the requesting employee. Matusik's testimony confirmed this as well when he stated that it was a "practice" to notify Fire Chief or Deputy Chief when taking funeral leave. We also note that Matusik's story about this situation has changed over time. In his sworn statement dated December 13, 2023, given as part of Deputy Fire Chief's investigation, Matusik said that he "assumed it had been approved." Then, in his January 30, 2024, written

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response to Fire Chief's termination recommendation, Matusik said that it was not the District's policy that such leave status be approved by a Deputy Chief or Fire Chief prior to making the change. Finally, at the disciplinary hearing, Matusik testified that he "understood that it was already approved by the deputy chief" but then, for the first time, he stated that the other battalion chief told him it was approved. At the hearing Matusik would not readily accept that he received any benefit and steadfastly refused to acknowledge that any mistake occurred, claiming instead that all policies and rules were followed. The facts, as found by the Board, say otherwise. The Board clearly found Fire Chief's testimony that prior practice mandated that funeral leave needed to be approved by a superior officer to be credible, and it disbelieved Matusik's testimony that he followed all established rules regarding timekeeping. We must defer to this determination on the credibility of these witnesses and their testimony. Starr, 707 S.W.3d at

1. Further, as the Board found:

[t]he need for requesting approval from a superior should be obvious. If employees of the same rank can change their time, which directly affects wages, the potential for abuse grows. The oversight that is realized by having a superior approve a time change removes manipulation of wages and protects the District's assets. Matusik attempts to minimize his actions, labeling the timekeeping issue as, at most, a "minor administrative error." But, the severity of Matusik's conduct is put in perspective by Deputy Chief, who, in his correspondence to Fire Chief recommending Matusik be disciplined, stated: "It is essential to emphasize that funeral leave is a resource funded by taxpayers in our district and should not be treated lightly" and that the situation constituted a "breach of trust and potential fraud, which the taxpayers and our fellow members cannot afford to tolerate." Additionally, Fire Chief testified that if the rules were as Matusik claims they were then there

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would be no restriction on who could approve time, ignoring the District's goal to be "good stewards to the taxpayer." On appeal, Matusik argues he was entitled to more notice of the possible disciplinary consequences of his conduct and also that the discipline imposed was not commensurate with the misconduct and his employment record with the District. We agree that "generally '[a]n employee must receive clear notice of both what the employer expects as well as the range of penalties that may be imposed for failing to meet the employer's expectations,' [but] these notice requirements do not apply 'where the conduct was clearly wrong.'" Int'l Ass'n of Firefighters, Loc. Union No. 42 v. Jackson Cty., 524 S.W.3d 217, 225 (Mo. App. W.D. 2017) ( quoting K ENNETH MAY, ELKOURI & ELKOURI: HOW ARBITRATION WORKS § 15.3.F.x, at 15-78 (8th ed. 2016)). As we have already discussed, Matusik's conduct in using the AFFF where he jeopardized the safety of District members and others and contaminated lake property, and his changing of the other battalion chief's time to benefit himself were clearly wrong. Also, the CBA provides that improper conduct or violation of the rules, for which "a verbal or written reprimand may be insufficient" may result in termination. Fire Chief testified that the two instances of Matusik's misconduct were sufficiently egregious on their own to warrant termination. We recognize the severity of the discipline imposed by the Board. Even if the facts could have supported a less serious disciplinary action, we leave the severity of the discipline to the Board's sound discretion because it is in a better position to determine the gravity of the misconduct and what should be done. See Johnson, 130 S.W.3d at 643; Stock, 712 S.W.3d at 47 ("[W]hen the evidence before an administrative body would warrant either of two opposed

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findings, the reviewing court is bound by the administrative determination, and it is irrelevant that there is supportive evidence for the contrary finding."). Matusik's use of the AFFF in violation of Fire Chief's order and his changing of the other battalion chief's time without supervisor approval are grounds a reasonable employer would regard as good and sufficient reasons for termination. Given all the information, Fire Chief's decision to recommend termination, and the Boards ultimate decision imposing that discipline was not done capriciously, on an arbitrary whim, and was certainly not unlawful. The Board had just cause to terminate Matusik's employment. Point one is denied. Point Two In his second point, Matusik argues his termination was arbitrary and capricious because the Board ignored "uncontroverted" evidence of his "exemplary" employment record. Arbitrary and capricious has been defined by Missouri courts as "willful and unreasoning action, without consideration of and in disregard of the facts and circumstances." Hauck, 721 S.W.3d at 157 (citing Pro. Fire Fighters of E. Mo., 680 S.W.3d at 142). If an administrative agency's findings are not based upon substantial evidence, then it acts unreasonably and arbitrarily. Id. Here, the Board did not act arbitrarily or capriciously when it terminated Matusik's employment. As we have already stated and recounted the evidence in support, Matusik failed to adhere to Fire Chief's clear directive to only use AFFF if a life safety issue existed, there was no evidence before the Board that someone's life was in imminent danger, and Matusik's actions jeopardized other individuals' health and contaminated lake property. Additionally, he changed the other battalion chief's time from an accrued leave status to a district funded status (funeral leave), without approval by a supervisor which resulted in a financial benefit to himself. As a

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battalion chief, Matusik was both a leader and a high-ranking supervisor. Battalion Chiefs are typically the highest-ranking officer on duty and they must be trusted to oversee shift operation in a manner that is consistent with Fire Chief's directives and aligns with the District's best interests. Both of Matusik's actions, taken individually or collectively, demonstrate a complete unwillingness to abide by District policy and Fire Chief's orders. We cannot say that the Board's decision terminating Matusik's employment under these circumstances was a willful and unreasoned action. Matusik's real complaint is that the Board did not assign more weight to the evidence of his "exemplary" employment record. Matusik presented evidence that Fire Chief praised him in December 2023 for his effort and support with a firefighter event, that he was praised in January 2024 for assisting on another employee's retirement celebration, and that he paid for some firefighter events using his own money. Matusik also relies on the fact that he had never been disciplined by the District for insubordination before his termination. There is nothing to suggest that the District ignored Matusik's evidence, and, Fire Chief stated that he considered Matusik's history with the District as part of his recommendation. While the Board's decision does not include the examples of Matusik's contributions to the District and his lack of prior disciplinary action, clearly, by its ruling, the Board gave these facts little weight when compared to the evidence and circumstances of Matusik's misconduct. Matusik ignores that, on appeal, "we must defer to the agency's determinations on the weight of the evidence[.] " Starr, 707 S.W.3d at 843. The Board reasonably found that Matusik's misconduct was not mitigated by his positive contributions to the District or his prior work record.

The Board also appears to have assigned great weight to Matusik's lack of contrition or willingness to admit that he was wrong. This is completely reasonable as it is imperative that

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high-ranking employees such as battalion c hiefs must be trusted to follow directives, lead others by example, or be willing to modify behavior if needed. See Hult v. Mo. Dep't of Health and Senior Sers., 726 S.W.3d 68, 78 (Mo. App. W.D. 2025) (quoting Furman v. Bd. of Nursing Home Adm'rs, 608 S.W.3d 742, 749 (Mo. App. W.D. 2020)) ( stating that an individual's "failure to acknowledge mistakes, and to accept responsibility for those mistakes, gives important insight into the [individual]'s attitude toward the regulatory process, and can serve as a powerful predictor of how the [individual] will conduct themselves" in their profession). Point two is denied. Point Three In his third point, Matusik argues that the Board's decision is unsupported by competent and substantial evidence because there was "no evidence" to support the Board's finding that there was not a life safety issue present when Matusik decided to use the AFFF. 5 We disagree. Substantial evidence is competent evidence that, if believed, has probative force upon the issues. Competent evidence is relevant and admissible evidence that is capable of establishing the fact in issue. We will only reverse in the rare case where the agency's decision is contrary to the overwhelming weight of the evidence. Stock, 712 S.W.3d at 46 (internal quotation marks and citations omitted). We have already set forth the substantial evidence that the Board had before it establishing that Matusik's decision to use the AFFF was in direct contravention of Fire Chief's clear order in his November 11, 2023, email to not use AFFF "unless an absolute life safety issue

5 In the argument under this point, Matusik also contends that there was not substantial and competent evidence to support the finding that Matusik violated District policy on the timekeeping issue. We d o not address this argument because claims of error raised in the argument portion of a brief but not encompassed in the associated point relied on will not be reviewed. Tolu v. Reid, 639 S.W.3d 504, 516 n.7 (Mo. App. E.D. 2021). See also Rule 84.04(e) (requiring that the argument be limited to the errors included in the points relied on); Campbell v. Union Pac. R.R. Co., 616 S.W.3d 451, 461 (Mo. App. W.D. 2020).

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exist[ed]." Further, Matusik's argument on appeal ignores his own testimony at the hearing. At the hearing, Matusik testified that he decided to use the AFFF because it would have been dangerous for firefighters to go inside the building to extinguish the fire, and that he used it to keep the District's members "from being put in a life safety situation." When questioned by a board member, Matusik confirmed that before he decided to use the foam, it was not a situation where someone's life needed to be saved. Additionally, the evidence showed that OBFPD was present on the scene to assist, and Fire Chief's direct order was to request the use of OBFPD's non-toxic foam, if the use of foam was necessary. The Board's finding that there was no life safety issue present when Matusik decided to use the AFFF is supported by competent and substantial evidence. Point three is denied. Point Four In his final point on appeal, Matusik claims that the Board's decision to terminate his employment was unconstitutional because the District did not afford him adequate due process in the disciplinary process. Specifically, he argues that for the first time, when Fire Chief gave his recommendation for termination to the Board based on Matusik's changing of the other battalion chief's leave time, Fire Chief included allegations that Matusik had been insubordinate three times in the six months before Fire Chief's recommendation to terminate Matusik's employment. 6 Matusik claims that Fire Chief failed to notify him at the time of the behavior that his conduct on those prior occasions could be cause for discipline, and Fire Chief's use of those occasions to support his recommendation for termination violated his right to due process.

6 Besides the allegation regarding the timekeeping issue, the other allegations of insubordination were that Matusik had contributed to a disruptive environment within the administrative staff, including threatening insubordination with regards to disobeying a working out of class directive, insubordinate speech and behavior during a meet and confer session, and disobeying Fire Chief's order to not use AFFF unless a life safety issue was present.

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As we have said, the CBA provides, in Article 18.1, that " [n]o employee shall be disciplined in the absence of just cause and due process will be accorded to all employees." "[D]ue process requires only that the employee be afforded notice of the charges, an explanation of the employer's evidence, and an opportunity to present his or her side of the story prior to the deprivation." Belton v. Bd. of Police Comm'rs, 708 S.W.2d 131, 138 (Mo. banc 1986) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545-46 (1985)). See also State ex rel. Wilhoit v. Seay, 248 S.W.3d 135, 140 (Mo. App. S.D. 2008) ("Notice and the opportunity to respond before being discharged are the essential requirements of procedural due process."). See also Tonkin v. Jackson C nty. Merit Sys. Comm'n, 599 S.W.2d 25, 32-33 (Mo. App. W.D. 1980). Matusik's main argument is that he was denied due process because there was evidence at the hearing of his additional insubordination and he claims that the Board unfairly relied on these prior incidents of insubordination. In its findings, the Board did not specifically mention those other instances of alleged insubordination—disobeying a working out of class directive and insubordinate speech and behavior during a meet and confer session—and there is no support in the record that the Board's decision was based on those two prior incidents. Fire Chief explicitly stated to the Board that he was providing the information of the other actions of insubordination as "backdrop" and that he was recommending termination for Matusik's modification of the other battalion chief's leave status and his use of the AFFF. The evidence at the hearing of Matusik's other alleged acts of insubordination did not violate his due process rights. Matusik argues that the first time he learned of these alleged issues was in Fire Chief's termination recommendation, and that he "was not given notice his conduct was insubordinate and thus he was not given the opportunity to change his behavior, which is what progressive

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discipline is intended to do." Matusik provides no support for his contention that due process in this context required the use of progressive discipline with regard to the previous instances of insubordination in order to give him the chance to change his behavior. Additionally, his argument ignores the requirements of due process, which are, as stated supra, to provide notice and the opportunity to respond before being discharged. Due process does not require that the employee be given a chance to modify his or her behavior. Matusik was permitted to provide evidence of his positive work contributions and accolades, and these other instances of alleged insubordination provided a full picture of his employment record. Matusik testified about these other allegations of insubordination to tell his side of the story, and his counsel cross-examined Fire Chief about these other instances. Further, under the CBA, Matusik was entitled to one continuance of the hearing "as a matter of right." Therefore, Matusik could have requested a continuance of the hearing if he felt that he needed more time to adequately defend against Fire Chief's allegations of insubordination and evidence, but he did not. We conclude that Matusik was afforded sufficient due process. The District provided Matusik written notice of the allegations and Fire Chief's recommendation for dismissal. Matusik filed a written answer to the charges, evidencing an understanding of the claim of insubordination related to his use of the AFFF and changing the other battalion chief's annual leave to funeral leave without supervisory approval. Matusik attended two separate hearings at which he heard Fire Chief's allegations and the supporting evidence, and he had the chance to respond to the allegations of misconduct. At the February 29, 2024, formal contested hearing, Matusik appeared in person and was represented by counsel, a court reporter recorded the proceedings, and all witnesses testified under oath. Matusik again heard the evidence against

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him, and he confronted and cross-examined the District's only witness, Fire Chief. Matusik also had the chance to rebut Fire Chief's testimony and the District's other evidence with his own testimony and exhibits. Put simply, Matusik was given an opportunity to be heard at a meaningful time and in a meaningful manner. Matusik was sufficiently apprised of the reasons relied upon by Fire Chief for the recommended discipline. Matusik's due process rights were not violated. Point four is denied. Conclusion Accordingly, we reverse the circuit court's judgment. We affirm the decision of the Board and remand the cause to the circuit court with directions to reinstate the Board's decision terminating Matusik's employment. _____________________________ Janet Sutton, Judge

Karen King Mitchell, P. J . , and Lisa White Hardwick, J. concur.