Eloise McGhee, Superintendent of Bellefontaine Habilitation Center, Respondent, v. Angela Dixon, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Eloise McGhee, Superintendent of Bellefontaine Habilitation Center, Respondent, v. Angela Dixon, Appellant. Case Number: No. 53209 Handdown Date: 09/16/1997 Appeal From: Circuit Court of Cole County, Hon. Thomas J. Brown, III Counsel for Appellant: Gregory F. Quinn Counsel for Respondent: Teresa Mayhew Hess Opinion Summary: Angela Dixon appeals from the trial court's order reversing the Personnel Advisory Board's (PAB) decision, which granted her a credit for attorney's fees and expenses after she successfully sought review of her dismissal from the department of mental health. On appeal, Ms. Dixon claims that the trial court erred in reversing the PAB's decision because: (1) she was entitled to a credit for attorney's fees against any mitigation of her back pay under the rule of Wolf v. Missouri State Training School for Boys, 517 S.W.2d 138, 148 (Mo. banc 1974); and (2) the PAB's failure to hold an evidentiary hearing prior to sustaining her motion for a credit for attorney's fees did not render its decision unlawful since Superintendent McGhee did not request a hearing. In response, the State argues that the trial court did not err in reversing the PAB's decision because the rule of Wolf has been superseded by the passage of section 536.087 and, in the alternative, because the PAB failed to hold the evidentiary hearing required by Wolf. AFFIRMED IN PART; REMANDED IN PART. Division III holds: (1) The trial court erred in reversing the PAB's decision granting Ms. Dixon a credit for her attorney's fees against the income she earned in mitigation of damages because section 536.087 does not abrogate Wolf. Under Wolf, a wrongfully dismissed state employee is entitled to a credit for reasonable attorney's fees and expenses against the income earned in mitigation of damages which is deducted from the award of back pay. Meanwhile, section 536.087 authorizes an administrative agency to award reasonable fees and expenses to the prevailing party in an administrative agency proceeding. There is no conflict between Wolf and section 536.087 because the statute addresses a manner of recovering legal fees while Wolf and this case involve the recovery of back pay. Furthermore, there is no indication in section 536.087 that the legislature intended for its provisions to supersede the relief available under Wolf or to fully comprehend or envelope the remedy provided by Wolf.

(2) However, the PAB's decision must be reversed on the ground that it failed to hold an evidentiary hearing as required by Wolf in determining the amount of the credit. Ms. McGhee did not have to request an evidentiary hearing because, as a matter of due process, Ms. Dixon had a property interest in the award of back pay. As such she was entitled to notice and opportunity to a hearing because she had a significant private interest in the award, the risk of erroneous deprivation of that interest was significant without an evidentiary hearing, and a hearing does not unduly burden the PAB. Citation: Opinion Author: Patricia Breckenridge, Judge Opinion Vote: AFFIRMED IN PART; REMANDED IN PART. Stith, P.J., and Hanna, JJ., concur. Opinion: When Angela R. Dixon was dismissed from her job with the Department of Mental Health, she appealed her termination to the Personnel Advisory Board (PAB). The PAB reinstated Ms. Dixon and awarded her back pay. It subsequently awarded Ms. Dixon a credit for the attorney's fees she incurred in obtaining her reinstatement against the deduction from her back pay award for her wages earned during the period she was wrongfully unemployed. Eloise McGhee, superintendent of the Bellefontaine Habilitation Center where Ms. Dixon was employed and Ms. Dixon's appointing authority, filed a Petition of Review in the Circuit Court of Cole County challenging the PAB's grant of a credit for attorney's fees and expenses. The circuit court reversed the PAB's decision on the ground that a statutory enactment abrogated prior case law permitting a credit for attorney's fees in the calculation of back pay. Ms. Dixon appeals. Ms. Dixon asserts on appeal that the circuit court erred in reversing the PAB's decision because: (1) she was entitled to a credit for attorney's fees against any mitigation of her back pay under the rule of Wolf v. Missouri State Training School for Boys, 517 S.W.2d 138, 148 (Mo. banc 1974); and (2) the PAB's failure to hold an evidentiary hearing prior to sustaining her motion for a credit for attorney's fees did not render its decision unlawful since Superintendent McGhee did not request a hearing. This court finds that the PAB correctly held that Ms. Dixon was entitled to a credit for her attorney's fees under Wolf, but it erred in not holding an evidentiary hearing before adjudicating the amount of such credit. Therefore, the circuit court's reversal of the PAB's order granting a credit of $1,507.50 for Ms. Dixon's attorney's fees is affirmed, but its judgment must be otherwise reversed to remand the case to the PAB for an evidentiary hearing to adjudicate the amount of Ms. Dixon's credit

for attorney's fees. Ms. Dixon was hired by the Department of Mental Health (Department) as a Hospital Attendant I at the Bellefontaine Habilitation Center on September 14, 1981. By 1994, Ms. Dixon had been promoted to a Developmental Assistant I and was an "on-the-job" training coordinator for new employees. In November, 1994, however, Superintendent McGhee notified Ms. Dixon that her employment at Bellefontaine had been terminated due to her misconduct towards Bellefontaine's clients, as reported by a fellow employee. Ms. Dixon appealed her dismissal to the PAB. Section 36.390.5, RSMo Supp. 1996, allows an employee to appeal an allegedly wrongful termination to the PAB. Pursuant to this section, if the PAB disapproves of the employee's dismissal, it is authorized to "[o]rder the reinstatement of the employee to the employee's former position and the payment to the employee of part or all of such salary as has been lost by reason of such dismissal. . . ." Section 36.390.5(1), RSMo Supp. 1996. Hearings before the PAB are contested cases which are subject to the procedures established by Chapter 536, RSMo. Section 36.390.9, RSMo Supp. 1996. After conducting such a hearing, the PAB found that the reporting employee's account of events was not credible and that Superintendent McGhee had failed to establish Ms. Dixon physically or verbally abused clients or otherwise violated the clients' rights as charged. As a result, the PAB concluded that the dismissal was not for good cause and reinstated Ms. Dixon "to her former position with payment of the salary she lost by reason of the dismissal." Neither party appealed this decision. Upon her reinstatement, Ms. Dixon and Superintendent McGhee were unable to agree on the proper manner to calculate Ms. Dixon's award of back pay. Both parties acknowledged that the wages Ms. Dixon earned after her dismissal and before her reinstatement at Bellefontaine, together with the amount of unemployment compensation she received, should be deducted from the gross amount of back pay. However, the parties could not agree whether the attorney's fees and expenses Ms. Dixon incurred to gain her reinstatement should be credited against the offset for the income she earned in mitigation of damages. As a result, Ms. Dixon filed a motion on November 9, 1995, requesting the PAB to award her attorney's fees. Her motion alleged that she suffered a loss of salary from state service in the amount of $11,659.70, she had earned $2,743.13 from substitute employment, and she had incurred attorney's fees in the amount of $1,507.50.(FN1) In the first count of this motion, Ms. Dixon claimed that she was entitled to a credit for her attorney's fees pursuant to the rule of law announced in Wolf. In her second count, she asserted that she should be allowed to recover her attorney's fees pursuant to section 536.087, RSMo. 1994,(FN2) because

Superintendent McGhee was not substantially justified in dismissing her. The PAB did not hold a hearing on Ms. Dixon's motion. On December 12, 1995, the PAB issued its Findings of Fact, Conclusions of Law, Decision and Order, finding that Superintendent McGhee was substantially justified in dismissing Ms. Dixon from her employment because the record contained competent and substantial evidence to support each of the charges. Thus, the PAB denied count two of Ms. Dixon's motion for attorney's fees under section 536.087. However, the PAB expressly found that, under Wolf, the attorney's fees claimed by Ms. Dixon in count one were reasonable and concluded that: [A]n Appellant who prevails in her appeal before the Board, is awarded an amount of salary lost by reason of the dismissal, earns wages in mitigation, and incurs attorney fees and expenses in her appeal to the Board, is entitled to have the amount of reduction to the salary lost from the mitigating earnings reduced by the amount of attorney fees and expenses incurred, up to the amount of the mitigating earnings. The PAB then ordered her attorney's fees to be "set off against the amount of mitigating earnings to be used in reduction of the amount of salary lost from state service by reason of the dismissal." Superintendent McGhee thereafter challenged the PAB's ruling by filing a Petition for Judicial Review in the Circuit Court of Cole County. The court, pursuant to section 536.140, reversed the PAB's decision to credit Ms. Dixon's attorney's fees against the mitigating earnings. The trial court reasoned that the enactment of section 536.087 in 1989 superseded Wolf "insofar as it pertains to the recovery of attorney fees and expenses in cases before the Board." It is this decision which Ms. Dixon appeals. In a proceeding to challenge the dismissal of a public employee by an appointing authority, "[t]he decision of the Personnel Advisory Board, not the judgment of the Circuit Court of Cole County, is the subject of review by this court." Downs v. Personnel Advisory Bd., 671 S.W.2d 12, 14-15 (Mo. App. 1984). The decision of the PAB is reviewed as if it had been directly appealed to this court. Prenger v. Moody, 845 S.W.2d 68, 73 (Mo. App. 1992). The PAB's decision will be upheld unless it exceeds its statutory authority; is not based upon substantial and competent evidence on the record as a whole; is unreasonable, arbitrary or capricious; involves an abuse of discretion; or is otherwise unlawful. Section 536.140; Prenger, 845 S.W.2d at 73-74. "Decisions of an administrative agency based upon its interpretation of law are matters for the independent judgment of the reviewing court." Golde's Dept. Stores v. Director of Revenue, 791 S.W.2d 478, 480 (Mo. App. 1990). As her first point, Ms. Dixon contends that the circuit court erred in reversing the PAB's order granting her a credit for the attorney's fees she incurred in obtaining her reinstatement against the deduction from her back

pay award for her wages earned and unemployment benefits earned during her period of wrongful dismissal. She argues that the circuit court mistakenly failed to follow the rule announced by the Missouri Supreme Court in Wolf since the circuit court incorrectly believed that Wolf was abrogated by the 1989 enactment of section 536.087. An understanding of both the Wolf case and section 536.087 is essential to an understanding of the issues of law involved in this appeal. The Wolf case involved the dismissal and subsequent reinstatement of a Corrections Officer I at the Missouri State Training School for Boys. 517 S.W.2d at 139. After the Missouri Supreme Court ruled that the employee should be reinstated, the Court focused its attention on the proper factors to employ in determining the employee's back pay award under section 36.390(5)(1), RSMo Supp. 1996. Id. at 142-43. The Court held that the award of back pay was subject to the "rule of avoidable consequences," which requires an offset against the award by whatever amounts the wrongfully dismissed employee earned, or by reasonable diligence could have earned, during the period of wrongful dismissal. Id. at 144-45. Upon a motion for rehearing, the Court had to decide whether the wrongfully dismissed employee should be allowed to reduce the amount to be deducted in mitigation of back pay by the employee's reasonable attorney's fees and expenses incurred in the litigation. Id. at 147. The Court held that: [A]n improperly dismissed merit system employee is entitled in the determination of the amount by which his back-pay award is to be mitigated under the rule of avoidable consequences to have credited against such amount the counsel fee plus expenses which the employee has paid or obligated himself to pay in vindicating his right to reinstatement of his position, provided that the amount of such credit is limited to what is determined to be a reasonable fee and reasonably necessary expenses.

Id. at 148. Therefore, the Wolf rule grants a wrongfully dismissed state employee a credit for reasonable attorney's fees against the application of the rule of avoidable consequences. As a result of the Wolf decision, the proper method for calculating a back pay award begins with a determination of the gross back pay due and then the amount of money the employee earned, or by reasonable diligence should have earned, in mitigation of damages. Before deducting the latter sum from the back pay award, the agency must reduce the amount to be deducted by the reasonable expenses and attorney's fees incurred by the employee to obtain reinstatement. If, however, the fees and expenses exceed the amount to be deducted in mitigation of damages, the employee receives only the initial backpay award and not an amount in excess thereof. See Stovall v. Civil Service Com'n, 636 S.W.2d 364, 368 (Mo. App. 1982). The Wolf rule has been applied in a number of cases to allow wrongfully dismissed state employees to credit reasonable attorney's

fees and expenses against the mitigating earnings deducted from awards of back pay. See Edmonds v. McNeal, 596 S.W.2d 403, 408 (Mo. banc 1980); Selby v. North Callaway Bd. of Educ., 777 S.W.2d 275, 280-81 (Mo. App. 1989); Bates v. City of St. Louis, 728 S.W.2d 232, 235 (Mo. App. 1987); DeSilva v. Director, Div. of Aging, 714 S.W.2d 690, 693 (Mo. App. 1986); Moreland v. Paule, 659 S.W.2d 609, 615 (Mo. App. 1983); Stovall, 636 S.W.2d at 368; and Stewart v. Board of Ed. of Ritenour, 630 S.W.2d 130, 136 (Mo. App. 1982). In 1989, fifteen years after the Wolf decision, the legislature enacted section 536.087. This statute authorizes an administrative agency to award reasonable fees and expenses to the prevailing party in an administrative agency proceeding or a civil action resulting therefrom. Subsection 1 states, in part: A party who prevails in an agency proceeding or civil action arising therefrom, brought by or against the state, shall be awarded those reasonable fees and expenses incurred by that party in the civil action or agency proceeding, unless the court or agency finds that the position of the state was substantially justified or that special circumstances make an award unjust. . . . Section 536.087.1. The legislature enacted section 536.087 "to require agencies to carefully scrutinize agency and court proceedings and to increase accountability of the administrative agencies." Hernandez v. State Bd. for Healing Arts, 936 S.W.2d 894, 901-02 (Mo. App. 1997) (quoting White v. Missouri Veterinary Medical Bd., 906 S.W.2d 753, 755 (Mo. App. 1995)). Section 536.087 was also designed to encourage private parties to challenge unreasonable governmental agency behavior by removing the financial disincentive of incurring large litigation expenses. Hernandez, 936 S.W.2d at 902. Ms. Dixon's appeal presents this court with an issue of first impression: whether the enactment of section 536.087.1 superseded the portion of Wolf allowing a wrongfully dismissed state employee to credit reasonable attorney's fees and expenses against the income earned in mitigation of damages which is deducted from the award of back pay. In other words, we consider the viability of Wolf in light of the enactment of section 536.087. In support of her position that Wolf is still good law, Ms. Dixon distinguishes the circumstances of Wolf and the present case from section 536.087. She argues that there is no conflict because section 536.087 addresses a manner of recovering legal fees, whereas Wolf and the instant case concern recovering back pay, not legal fees. According to Ms. Dixon, Wolf does not authorize the PAB to award attorney's fees; rather, under narrow circumstances, it permits the PAB to credit attorney's fees against the mitigating earnings deducted from the award of back pay when a state employee has successfully contested a wrongful dismissal, and has earned mitigating wages in the interim. In response, the state disputes this distinction, and argues that Wolf was abrogated by the enactment of

section 536.087. The state asserts that both Wolf and section 536.087 address the recovery of attorney's fees and litigation expenses in proceedings before government agencies. The state acknowledges that Wolf has never been expressly overruled, but also points out that Wolf was decided before the enactment of section 536.087, or any other statute governing the recovery of fees and expenses in administrative proceedings. Therefore, the state concludes that the PAB erroneously credited Ms. Dixon's attorney's fees against the deduction from her back pay award for mitigating earnings since the PAB found that, under section 536.087, the state was substantially justified in dismissing Ms. Dixon from her employment. As a general rule, a subsequently enacted statute can abrogate prior inconsistent case law. The abrogation can be express, such as in Elliot v. Kesler, 799 S.W.2d 97 (Mo. App. 1990), or implied, as in Connor v. Monkem Co., Inc., 898 S.W.2d 89 (Mo. banc 1995). In Elliot, the Supreme Court recognized that the legislature responded to the judicial holdings in three cases that dram-shop claims are cognizable by enacting section 537.053.2, which cites the three cases and states that those holdings are abrogated. 799 S.W.2d at 101. In Connor, the Supreme Court found that the wrongful death statute, section 536.080, and the statute defining an unborn child, section 1.205, read in pari materia, abrogated prior inconsistent case law. 898 S.W.2d at 92-93. However, the Supreme Court has held that "a statutory right of action shall not be deemed to supersede and displace remedies otherwise available at common law in the absence of language to that effect unless the statutory remedy fully comprehends and envelopes the remedies provided by common law." Detling v. Edelbrock, 671 S.W.2d 265, 271-72 (Mo. banc 1984). There is no indication in section 536.087 that the legislature intended for the provisions of subsection 1 to supersede the relief available under Wolf. Nor do the provisions of section 536.087 fully comprehend or envelope the remedy provided by Wolf. Awards of attorney's fees under section 536.087 are separate from and unrelated to awards of back pay made to wrongfully terminated employees. The Supreme Court in Wolf did not authorize a monetary award of attorney's fees, it merely established the mechanics for computing an award of back pay which permits a credit for attorney's fees against the mitigating wages earned. In addition, the rationale underlying an award of attorney's fees in section 536.087.1 is altogether different than the rationale for an award of back pay. An award of attorney's fees increases the accountability of administrative agencies and encourages parties to challenge abusive or unreasonable government action by removing the financial disincentive of expensive litigation. Hernandez, 936 S.W.2d at 901-902. On the other hand, an award of back pay serves to restore to the employee what was lost by the wrongful dismissal.

Two cases following Wolf distinguish an award of attorney's fees from the use of attorney's fees as a factor in the calculation of an award of back pay. See Moreland, 659 S.W.2d at 614-15; Stovall, 636 S.W.2d at

1. In Moreland, two wrongfully dismissed corrections officers filed cross-appeals for attorney's fees and

expenses. 659 S.W.2d at 614. In disposing of the officers' claims, the court found that they were not entitled to an award of attorney's fees "separate from and in addition to their reimbursement for lost salary." Id. Instead, they were entitled to have their attorney's fees and any reasonable expenses incurred in connection with the lawsuit credited against the amount of income that the agency determined they earned or should have earned in mitigation of damages. Id. at 614-15. Likewise, in Stovall, an employee sought an award of attorney's fees following his reinstatement as a civil service employee. 636 S.W.2d at 368. The court determined that, under Wolf, the employee was "not entitled to an award of attorney fees in addition to his damage award," but was entitled to have attorney's fees credited against the amount of income the employee earned in mitigation of damages. Id. In both Moreland and Stovall, the courts denied the employees an award of attorney's fees, but held that they were entitled to have their reasonable fees and expenses credited against the income earned in mitigation of damages. These cases demonstrate that the Wolf rule has limited application. To trigger the rule, a wrongfully dismissed state employee must be reinstated and awarded the amount of salary lost by reason of the dismissal, earn income or receive unemployment compensation in mitigation, and incur attorney's fees and other expenses in gaining reinstatement. The attorney's fees and expenses must be reasonable, and cannot be in excess of the income earned in mitigation of damages, thereby increasing the overall award of back pay. See Bates, 728 S.W.2d at 235; Stovall, 636 S.W.2d at 368. In the event that a state employee was awarded both attorney's fees under section 536.087 and back pay under Wolf, there would be no conflict because the award of attorney's fees would eliminate the need for a credit under Wolf. The passage of section 536.087 does not abrogate Wolf. It is still good law and governs the outcome of the instant case. The PAB properly found that Ms. Dixon was entitled to a credit for her attorney's fees against the income she earned in mitigation of damages. Therefore, the circuit court erred in finding that Ms. Dixon was not entitled to a credit under Wolf. Nevertheless, the PAB's award of a $1,507.50 credit must be reversed on other grounds. In her second point on appeal, Ms. Dixon claims that the circuit court erred in reversing the PAB's decision on the alternative basis that the PAB failed to hold an evidentiary hearing as to the amount of attorney's fees. Ms. Dixon argues that

Superintendent McGhee failed to seek an evidentiary hearing before the PAB, and thereby failed to preserve the issue for subsequent review. In applying the Wolf rule, the administrative agency is to hold an evidentiary hearing to determine back pay, offsets, attorney's fees and expenses. See Gamble v. Hoffman, 732 Mo. App. S.W.2d 890, 895 (Mo. banc 1987) (Gamble II); DeSilva, 714 S.W.2d at 693; Gamble v. Hoffman, 695 S.W.2d 503, 509 (Mo. App. 1985) (Gamble I). In Gamble I, this court recognized that, under Wolf, the employee is entitled to credit for reasonable attorney's fees and expenses in computing the amount to be deducted in mitigation of the back pay award. 695 S.W.2d at 509. The court then followed the Supreme Court's direction in Edmonds, 596 S.W.2d at 408, in finding that any "offsets are to be determined by an administrative evidentiary hearing for that purpose. . . ." Gamble I, 695 S.W.2d at 509. On appeal from the decision entered on the remand of Gamble I, the Supreme Court reaffirmed the proper forum for the calculation of back pay. Gamble II, 732 S.W.2d 890, 895 (Mo. banc 1987). It stated that "[w]here there has been an improper dismissal and reinstatement the administrative agency, not the trial court, conducts the evidentiary hearing on back pay, attorney fees, expenses and offsets." Id. Despite these rulings, it is undisputed that the PAB did not hold an evidentiary hearing in this case on Ms. Dixon's motion. Nevertheless, Ms. Dixon claims that Superintendent McGhee was not entitled to a hearing on the issue of a credit for attorney's fees and expenses because she did not request one. Ms. Dixon cites no authority in her brief before this court for the proposition that Superintendent McGhee must request an evidentiary hearing under Wolf or such a hearing is deemed waived. Ordinarily, failure to cite relevant case law in support of a position on appeal, results in abandonment of that point. Ritterbusch v. New London Oil Co., Inc., 927 S.W.2d 873, 876 (Mo. App. 1996). Therefore, we are not obliged to consider Ms. Dixon's second point on appeal. However, we determine to review this issue ex gratia. In considering whether Superintendent McGhee was required to request a hearing, we note that there was no analysis accompanying the Supreme Court's rulings in Edmonds, 596 S.W.2d at 408, and Gamble II, 732 S.W.2d at 895, that the administrative agency should conduct an evidentiary hearing to determine back pay, attorney's fees, expenses and offsets. The right to an evidentiary hearing has its foundation in the substantive law consisting of statutes, rules, ordinances, or any provision of the state or federal constitutions. State ex rel. Yarber v. McHenry, 915 S.W.2d 325, 328 (Mo. banc 1995). Neither party refers this court to a statute, rule or ordinance granting a hearing and we have not located one independently. Therefore, the only other possible

source for the right to an evidentiary hearing is in the constitutional right to due process. Id. "In order to be entitled to a hearing under due process of law, a [claimant] must have either a life, liberty or property interest protected by the Constitution." Id. Generally, protected property interests for purposes of due process, derive from state law. Id. A regular, nonprobationary employee under the state merit system can be discharged only "for cause" and has a constitutionally protected property interest in continued employment. Division of Family Services v. Cade, 939 S.W.2d 546, 552 (Mo. App. 1997). While no Missouri case has addressed whether a state employee's protected property interest extends to an award of back pay after wrongful discharge from employment, this court believes that such a property interest exists. In reaching our decision, we rely on the Supreme Court's holding in an analogous situation. In Belton v. Board of Police Com'rs, 708 S.W.2d 131, 137 (Mo. banc 1986), the Missouri Supreme Court determined that a suspension without pay of a city police officer implicated a constitutionally protected property interest in continued employment to which due process applies. In reaching this conclusion, the court was influenced by the fact that the police officer could be dismissed only "for cause." Id. The court elaborated, saying that the protected property interest included "an interest in the office itself, as well as the emoluments of the office (e.g., rank and compensation)." Id. Here, too, Ms. Dixon could only be dismissed "for cause" because she was a regular employee under the state merit system. Sections 36.030.1, RSMo Supp. 1996, and 36.380. Under the Belton court's reasoning, Ms. Dixon had a property interest in the compensation attendant her position. There is no reason to distinguish compensation in the form of back pay from other compensation. Therefore, the statute providing for back pay, section 36.390.5, RSMo Supp. 1996, creates a protected property interest. As a result, Ms. Dixon had a protected property interest in all elements of back pay when reinstated after a wrongful termination. The reduction of her back pay in mitigation of damages constituted an infringement on this right. Under the Due Process Clauses, a person facing the deprivation of a protected property interest is entitled to notice and an opportunity for a hearing "appropriate to the nature of the case." Moore v. Bd. of Educ. of Fulton School, 836 S.W.2d 943, 947 (Mo. banc 1992). "[D]ue process contemplates the opportunity to be heard at a meaningful time and in a meaningful manner." Id. The actual degree of process accorded, however, is determined under the balancing test of Matthews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976). Cade, 939 S.W.2d at 553. "The Matthews test balances three interests: (1) the private interest affected by the action; (2) the risk of an erroneous deprivation of that interest under the procedures being used;

and (3) the governments's interest in resolving the matter without being unduly burdened by additional or substitute procedural requirements." Id. Under the first Matthews factor, we consider whether Ms. Dixon's interest in back pay for the period of wrongful termination was significantly affected by the PAB's determination of the amount of her credit for attorney's fees. Pay is a primary benefit of employment, and deprivation of pay is a deprivation of a person's means of livelihood. Cade, 939 S.W.2d at 554. Ms. Dixon's dismissal effective November 9, 1994, left her without pay until her reinstatement on October 10, 1995. Her interest in recovering wages for this period was an important and protected property interest. And, her interest in this back pay was significantly affected by the PAB's determination of any offset for the income she received while terminated and the amount of any credit against that offset for attorney's fees and expenses incurred to obtain her reinstatement. Because her interest in back pay was significantly affected, this factor weighs in favor of Ms. Dixon's right to an evidentiary hearing prior to the adjudication of the amount due her. Under the second Matthews factor, there was a significant risk of an erroneous deprivation of Ms. Dixon's interest in compensation in the PAB's adjudication of her back pay without a hearing. The Wolf case required a determination of (1) the amount of wages lost; (2) the amount that the employee earned or by reasonable diligence could have earned during the period of wrongful discharge; and (3) the amount and reasonableness of the attorney's fees and expenses claimed. 517 S.W.2d at 148. In ruling on the issues on the basis of the pleadings and without an evidentiary hearing, the PAB did not have the benefit of hearing either the evidence or the arguments of counsel. With regard to attorney's fees, while a trial court is an expert on the reasonableness of attorney's fees, Prosser v Rethorn, 928 S.W.2d 364, 365 (Mo. App. 1996), there is no comparable rule for the PAB. It must decide the issue on the basis of the evidence before it. In addition, in adjudicating a request for attorney's fees, the trier of fact may need to assess the credibility of the parties and the sincerity of a party's position, "which often is not fully discernable from the record." See id. Therefore, an evidentiary hearing would reduce the risk of erroneous deprivation of Ms. Dixon's protected property interest in her back pay. Under the third Matthews factor, the requirement of a hearing for the calculation of back pay would not unduly burden the PAB. While an additional hearing expands the necessary administrative process, a hearing would only be required in the limited number of cases where a reinstated employee is awarded back pay, the employee had income which must be applied to reduce the award of back pay, and the employee incurred attorney's fees and expenses in obtaining reinstatement. In addition, the nature of the issues would generally not

require lengthy proceedings. Under the balancing test of Matthews, the PAB was required to hold an evidentiary hearing prior to adjudicating the amount of its back pay award to Ms. Dixon. Because the hearing was required by law, Superintendent McGhee had no duty to affirmatively request a hearing, and she did not waive a hearing by taking no action. Accordingly, we affirm the judgment of the circuit court reversing the PAB's order because the PAB failed to hold an evidentiary hearing. And, we remand this cause to the circuit court with directions to amend its judgment to remand the case to the PAB so that it may conduct an evidentiary hearing to determine the amount of Ms. Dixon's attorney's fees and expenses to be credited under the Wolf rule. See McCall v. Goldbaum, 863 S.W.2d 640, 643 (Mo. App. 1993). Footnotes: FN1. Although not alleged in her motion, Ms. Dixon collected unemployment insurance benefits totalling $3,366 from November 9, 1994 through October 10, 1995. FN2. All statutory citations are to the Revised Missouri Statutes 1994, unless otherwise noted. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.