Is Should the Past Tense of Shall? Show-Me State Appeals Court Says Yes

A paramedic for the St. Louis Fire Department has prevailed in her appeal of a 15-day disciplinary suspension. Elizabeth Smith received the suspension in 2018 over problems with documentation associated with her request for leave under the Family Medical Leave Act.

According to the decision:

  • Smith submitted Family/Medical Leave forms to the City’s Fire Division Medical Officer.
  • Upon seeking clarification about the content of Smith’s forms, the Medical Officer discovered that the doctor who purportedly signed the forms on July 30, 2018 had left his local medical practice and had not worked in Missouri for five months.
  • The St. Louis Fire Department Disciplinary Review Board conducted a pre-disciplinary review for Smith.
  • During the review, Fire Chief Dennis Jenkerson advised Smith of the charges against her, gave her an explanation of the evidence, and gave her an opportunity to present any disputed facts or mitigating circumstances.
  • Smith maintained that the physician’s signature on her medical leave forms resulted from a clerical error in the physician’s office, and that she did not notice the error before submitting the forms.
  • The Disciplinary Review Board found that Smith’s actions violated the Division of Fire and Fire Prevention rules and regulations that: (1) prohibit the making of untruthful and inaccurate reports and the making of misleading statements with intent to deceive; (2) require prescribed forms be completely and accurately filled out; and (3) prohibit the filing of false reports.

Smith appealed the suspension to the city’s Civil Service Commission, requesting a review based on written submissions by that parties. The procedures governing the written submission review stated that the city’s “submission should include the following: 1. A notarized statement from the Appointing Authority or his/her designee setting forth the specific reasons for the action which is the subject matter of the appeal.”

The city’s written submission regarding Smith’s discipline was not notarized, a point Smith raised in her response, and continued to raise at each point in the appeal process. She argued that the failure of the city to comply with its own procedures regarding notarized submissions, violated her procedural due process rights. The Civil Service Commission rejected Smith’s arguments and upheld the 15-day suspension, as did the St. Louis Circuit Court on Smith’s initial appeal. Smith then appealed to the Missouri Court of Appeals.

The Court of Appeals reversed the earlier rulings concluding that:

  • Where the State grants an employee a right or expectation that adverse action will not be taken against the employee except upon the occurrence of specified behavior, the determination of whether such behavior occurred becomes critical, and the minimum requirements of procedural due process appropriate for the circumstances must be observed.
  • Suspension for cause, like termination of employment, implicates constitutionally-protected property interests.
  • Because Smith’s suspension involved a constitutionally-protected property interest, she was entitled to have her case adjudicated as a contested case
  • Smith’s right to a measure of procedural formality and heightened procedural safeguards are essential to our analysis in this case.
  • Smith was entitled to the procedural safeguards provided by the written submission process.
  • These safeguards include the provisions stating that the appointing authority “should” provide “[a] notarized statement from the Appointing Authority or his/her designee setting forth the specific reasons for the action which is the subject matter of the appeal.”
  • The City relies on caselaw about the permissive and mandatory nature of the words “may” and “shall,” respectively, to argue the word “should” merely suggests rather than requires notarized statements.
  • However, the nature of the words “may” and “shall” are not at issue in this case.
  • The nature of the word “should” is at issue, and as used here, we disagree with the City’s interpretation.
  • “Should” is the past tense of “shall.” Merriam-Webster Online Dictionary….
  • It is also “used in auxiliary function to express obligation, propriety, or expediency” and “to express what is probable or expected.”
  • Thus, “should” might be used to express either a mandate or to express a suggestion or expectation.
  • Similarly, Missouri courts have found the word “should” to convey either an obligation or a suggestion, depending on a logical reading of the whole text in which “should” is used.
  • We conclude that a logical reading of the Commission’s entire written submission process, particularly section III, which sets forth the procedure in detail, requires the appointing authority’s statement be notarized.
  • Even if “should” as used here were interpreted to mean that submission of a statement by the appointing authority is suggested, not required, when the appointing authority submits a statement, the statement must be notarized or otherwise verified.
  • Adherence to due process is mandatory, not merely optional or suggested, when an employee’s constitutionally-protected property interest in his or her job is implicated.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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