The attorney for Sherman George told the court he was in a unique position Tuesday morning as he presented an oral argument on behalf of the former fire chief for the City of St. Louis.
George’s attorney, Thomas M. Blumenthal, was arguing before the Missouri Court of Appeals, Eastern District. George was appealing a decision by the City’s Civil Service Commission, which ruled that Mayor Francis G. Slay and his director of Public Safety had the authority to order then Chief George to make a contested set of promotions.
In 30 years as a trial lawyer, Blumenthal said, he had never brought an appeal to the same court that issued the precedent-setting ruling his argument relied upon – and in an almost identical case with almost the exact same cast of characters.
“Same test, same list, same fire chief, same mayor, initially the same director of Public Safety,” Blumenthal said.
The test was a promotions test for the St. Louis Fire Department administered by a firm now known as EB Jacobs, which George advised the then director of Personnel not to choose. The list was the promotions list that resulted from that firm’s testing.
George, of course, was the fire chief, and Francis G. Slay was and is the mayor. In 2005, when the Missouri Court of Appeals, Eastern District issued the precedent-setting ruling, the director of Public Safety who ordered George to make the promotions was Samuel J. Simon.
Simon was still in that position in September 2007, when he gave George the same order to promote from the same list with a threat of disciplinary action. Simon then resigned (two days after The American published a bizarre letter where Simon directed a vendor to come collect all of the fire department’s air masks – without telling the fire chief what he was doing or preparing a plan to immediately replace the air masks).
Simon was replaced by Charles Bryson, who immediately said he stood by Simon’s order and threat to the chief. On October 1, 2007, Bryson demoted George to deputy chief and promoted to acting fire chief Steven Kotraba, who immediately began making the contested promotions. After appealing all of these actions, George resigned in what he described as “constructive termination,” claiming he had been left in an intolerable working position.
In court on Tuesday, Blumenthal pointed out to the court that in his actions as fire chief, Sherman George had only been following the law laid down by this very court.
“The fire chief was faced with a decision to follow an order, which he thought was illegal, or to follow your legal opinion that it was within his discretion to promote or not promote,” Blumenthal told the court.
“He chooses to follow the rule of law, and he is penalized by a demotion – which is not really a demotion. You have served 40 years and never been disciplined, and now you’re told, ‘We’re going to demote you and put you under a person you previously filed a complaint against that led to his being disciplined’?”
Nancy Kistler, deputy city counselor, argued against the appeal for the City of St. Louis. She argued that the appointing authority powers outlined in the City Charter, and upheld by this court in 2005, were limited by other provisions in the charter. These other provisions grant supervisory authority over the fire chief to the director of Public Safety and the mayor.
Judge Roy L. Richter asked Kistler from the bench if these provisions of the City Charter give these supervisors “do this or else” authority.
Kistler responded, “Absolutely!” and made the comparison to her own subservient position as deputy to City Counselor Patricia Hageman: “I have a boss above me, and when she says, ‘You need to settle that case,’ I need to settle that case.”
In his rebuttal, Blumenthal argued that Kinstler’s comparison to her own subservient position in city government was beside the point. Unlike the case with the fire chief, her position has no independently defined statutory authority – let alone statutory authority that had been upheld by the very court before which they were arguing.
“This court said the fire chief has the discretion to make promotions. The mayor said, ‘You have the discretion, but only if I agree with you,’” Blumenthal said.
“That’s not the fire chief’s discretion, then. That’s the mayor’s discretion.”
Also on the bench Tuesday were Judge Clifford H. Ahrens and Judge Kathianne Knaup Crane. If they rule in favor of George’s appeal, he would be reinstated as fire chief with back pay, according to Missouri law and St. Louis civil service rules.
