Valerie Lesko, Appellant, v. Missouri Highway and Transportation Commission, William E. Gladden, Edward D. Douglas, S. Lee Kling, W.L. (Barry) Orscheln, Robert E. Jones and Ollie W. Gates, Respondents, and Terry Porterfield, Respondent.

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: Valerie Lesko, Appellant, v. Missouri Highway and Transportation Commission, William E. Gladden, Edward D. Douglas, S. Lee Kling, W.L. (Barry) Orscheln, Robert E. Jones and Ollie W. Gates, Respondents, and Terry Porterfield, Respondent. Case Number: WD59195 Handdown Date: 05/07/2001 Appeal From: Circuit Court of Cole County, Hon. Patricia S. Joyce Counsel for Appellant: Carla Holste Counsel for Respondent: Paula Bangert and Rich Tiemeyer Opinion Summary: Lesko appeals the denial of her petition seeking judicial review of the Missouri Department of Transportation's (DOT) decision terminating her employment of ten years. She contends that section 36.390 and DOT regulations require that she may only be terminated for the "good of the service." She also argues that her termination was not for the good of the service as the evidence was insufficient that she lied to her supervisor and, alternatively, the level of discipline imposed was an abuse of discretion. REVERSED. Division holds: (1) The decision in this matter is controlled by this court's recent decision in Bowen v. Missouri Dep't of Conservation, WD 58711 (March 6, 2001). (2)As there is no reasonable basis for distinguishing this matter from Bowen, reversal and remand is required to permit DOT to determine whether Lesko's termination, as opposed to other discipline, was for the "good of the service." Citation: Opinion Author: Ronald R. Holliger, Judge Opinion Vote: REVERSED. Newton, P.J., and Ellis, J., concur. Opinion:

Valerie Lesko, a 10-year veteran of the Missouri Department of Transportation (MDOT) was terminated from her position as Senior Auditor for lying to her supervisor about whether she had accessed certain computer files. She sought a post-termination hearing under section 36.090.8, RSMo. 2000. After a hearing, the hearing officer concluded that section 226.090, RSMo., permitted an employee of MDOT to be discharged at will with or without cause. The Commission adopted the decision. Lesko filed a two-count petition in the Circuit Court of Cole County seeking judicial review of the Commission's decision and damages under 42 U.S.C. section 1983. Upon cross motions for summary judgment the trial court entered a judgment affirming the decision and order of the Commission. Lesko raises two points on appeal. First she contends that section 36.390 and the MDOT termination procedure required that her termination be for the "good of the service" which is, she contends, essentially a "for cause" standard. The Commission's decision included no findings whether cause existed to terminate Lesko's employment. She complains that as a result her constitutional rights to due process were violated and that the decision is unsupported by competent and substantial evidence, is unauthorized by law, made upon an unlawful procedure, is arbitrary, capricious or unreasonable and involves an abuse of discretion. In her second point, Lesko claims the Commission erred because her termination was not for the good of the service because the evidence was insufficient to establish that she lied to her supervisor or alternatively that the level of discipline (termination) constituted an abuse of discretion. We reverse and remand for further proceedings. Lesko applied for a position of audit manager with MDOT, but was not interviewed for the job. The Division Director claims that when he told Lesko that the position had been filled, she stated that she already knew the position had been filled and the name of the new manager. The Director began an investigation and determined that files from a department computer program which Lesko was not authorized to access had, in fact, been accessed from her computer terminal. Lesko denied accessing those files. The Director terminated Lesko, giving as the reason for termination her allegedly false statement about accessing the computer files. Bowen v. Missouri Dep't of Conservation, WD 58711 (March 6, 2001) governs our decision in this matter. There, a non-merit employee, such as Lesko, made exactly the same arguments as herein. The Department of Conservation made the same arguments as MDOT has made herein, contending that the only finding required to support the termination was a finding that the employee served at the will of the agency. In Bowen, as here, the agency made no finding whether the termination was for the good of the service. This court in Bowen rejected both parties' arguments directing that the cause be remanded to the Department for its determination whether termination, rather than some other

action or no action, was "not for the good of the service." Both parties agree that the same statutes and procedures applicable in Bowen govern the termination of Ms. Lesko. There is no basis for distinguishing these cases. We, therefore, reverse and remand to the MDOT so that it can determine whether the termination of Ms. Lesko, as opposed to some other discipline, was "not for the good of the service." Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.