Statement by the Board of Directors of K.A.P.I.
Re: Missouri Court of Appeals, Western Division, Decision #57956,
K.A.P.I. et al vs Mulvihill, et al (Kansas City Board of Police Commissioners)

On November 14, 2000, the Missouri Court of Appeals for the Western District issued its opinion affirming the lower courts in the class action civil suit initiated by K.A.P.I. against the Kansas City Board of Police Commissioners. The immediate effect is that the Police Board must refund all fees collected for private security licenses since 1988. This situation could easily have been avoided or its financial impact minimized had some individual members of the Police Board, its legal advisors and selected police personnel acted with more professional competence and less official arrogance. On the basis of its contact with the Kansas City Police Board, the Police Legal Department and the Private Officer Licensing Section during this matter, the Board of Directors of K.A.P.I. endorses the following professional opinions, observations and recommendations to the public.

• 1. It is time for the Missouri Legislature to review the structure and authority of the Kansas City Board of Police Commissioners.
  
  
  • A. The individual status of police commissioners collectively composing a board without a recognized legal entity that is actually the Police Board causes a confused situation in assessing legal responsibility. It is probably in the public's best interest to alter this legal arrangement.
    
  • B. The Police Board's status as a state agency is frequently misused; it affords police officials a choice of city or state authority. In the past, these officials typically assume whichever stance best supports their position in a particular case. This dual authority situation allows the unscrupulous to cynically manipulate the system to achieve whatever end is sought in a particular situation. Clarification of this dual authority should be legislated.
    
  • C. The granting of authority to the Board to regulate private security officers has split the authority for occupational licensing of individuals causing duplication of requirements within Kansas City; the city continues to assert that private officers must also have city occupational licenses even though legal research by K.A.P.I. indicates that this practice is not lawful. In addition, the Police Board has demonstrated a clear lack of understanding for the business aspects of private security operations
  
  
  
• 2. It is time for the Missouri Legislature to review and alter the immunity of the Kansas City Board of Police Commissioners and its individual members.
  In this case, the Police Board asserted that they held both Legislative Immunity and Qualified Legislative Immunity against a civil rights claim for the improper conduct. This was an absurd assertion under the circumstances. The complaint of K.A.P.I. was that the Board had acted outside of its authority, not within it, when it failed to follow the administrative steps required by an existing statute. Incredibly, the Qualified Legislative Immunity was asserted on the basis that a person who acts outside of his authority, but believes that he is acting within his authority, is immune. This means that if you do it right, you are immune, but when you do it wrong, you are still immune if you claim that you thought it was right. The absurdity of this claim was that it was advanced by a Police Board composed of two attorneys, two PhDs and one Doctor of Theology advised by two attorneys, and the issue was whether the Police Board knew and understood one simple state statute. They presented and persisted in this claim after the statute was pointed out to the Police Board by K.A.P.I. and its requirements explained in a public meeting. This assertion of Qualified Legislative Immunity stripped from the affected citizens any right to claim redress in court. This was an incredibly arrogant action which demonstrates a deliberate intent to evade responsibility for official conduct that was known to be improper. That is the basic definition of unprofessionalism and strong proof of poor ethics. Even more incredibly, the federal court accepted this assertion without serious examination and summarily dismissed the counts. K.A.P.I. lacked the resources to contest the decision; which was probably why the officials involved asserted it. The disregard for the citizen was quite clear. The immunity of these police officials needs to be altered; particularly for those citizens that it directly regulates. There must be legal accountability in the courts for deliberate misconduct. The current situation requires an individual private officer to go directly to the Governor or the Legislature to obtain relief. That is too high a burden to place on one citizen.
  
  
• 3. It is time for the appropriate state and local officials to conduct a thorough job performance review of selected individual Police Commissioners and members of both the Kansas City Police Legal Department and the Private Officer Licensing Section.
  K.A.P.I. saw open displays of official arrogance by two Police Commissioners and disregard of state statutes by the Police Board as a whole. Given the educational and professional background of the appointees to the Police Board in 1996, it is not reasonable to believe that the collective Police Board, advised by both its own attorney and an attorney of the Police Legal Department, simply did not know what they were required to do. The statute in question, RSMo 536.021, is neither complex nor obscure. The interpretation upheld by the courts was gained on a first reading by an educated private investigator researching the matter for K.A.P.I. Even if the Police Board did not know of the requirement initially, the appearance of a K.A.P.I. representative at an open public meeting clearly informed them of the requirement. The persistence of holding to their position after that point clearly moves their actions from simple error or disregard to open defiance of a state statute by appointed officials. This is not an acceptable action by any political appointee under any circumstances in a democracy. It is grounds for removal. In addition, K.A.P.I. encountered what appeared to be serious competency and ethical problems in the Police Legal Department and questionable administrative actions and ethical cowardice by personnel in the Private Officer Licensing Section. There are times when a public employee must ask tough questions or take a stand, even against superior officials. They simply failed to do so.
  
  
• 4. It is time for the appropriate officials to alter the exemption of Police Officers from private security licensing requirements imposed by cities and police boards in Missouri.
  The exemption of local police officers from the private officer licensing requirements is not in the best interest of the public; it raises three issues. First, police officers have no direct civil liability insurance, a requirement in Kansas City for private officers. When an incident occurs while working private security duties, the police officer has no insurance coverage to pay any claim. The coverage must be provided by the city which has a choice of whether to do so. This means that the police officer and the member of the public who is affected can be left without coverage to pay the claim. Second, if the city steps in to provide the coverage, this means that city resources are being used to the benefit of the private employer who is utilizing the off-duty police officer. Is that appropriate? There is no legitimate reason why a city should have to assume the business liability of a private employer. Third, an existing Missouri statute prohibits police officers from accepting gifts, rewards, etc. for performing their duties. It appears that, in some case, the officers working off-duty might be in violation of this statute. The Kansas City Police Board asserted in this case, that these officers were providing ‘police services' and not ‘security services'. This means that the officers can not receive any direct compensation other than a city salary. It also means that the police officer's authority is limited to city authority and that the authority of the private business involved may not be relied upon by the officer in any manner while performing those duties. A close examination of many arrest and conduct control situations would probably show that police officers working security assignments are routinely exceeding this limitation and probably violating the civil rights of many citizens in Kansas City. Portions of this problem recently surfaced in legal actions against Kansas City Police Officers involved in the Timothy Wilson incident. Finally, there are differences between police and security operations; police officers are not routinely taught what those differences in authority, jurisdiction and liability are.
  
  
• 5. It is time for the Missouri Legislature to initiate state-wide licensing or state-wide reciprocity of standardized city licensing for private investigators in Missouri and possibly for other private security operations that frequently cross city boundaries.
  The licensing situation for private investigators and security officers in the Kansas City metropolitan area is extremely redundant and complex. The requirements in the cities of the five county area vary from none to demands for varying levels of insurance, training, and experience. Investigative operations frequently require crossing of the state line and multiple city boundaries. Compliance is difficult for those investigators that attempt to do it. The benefit to the public of requiring individual licensing in each city is minimal. Multiple background checks, fingerprinting, photos, etc all reveal exactly the same qualifications or disqualifications. Whatever benefit is derived by checking the background of a private investigator or security officer occurs on the first check; yet the system in place repeatedly duplicates it. This wastes both private and public resources in the various cities with no improvement in the quality of private security officers available to the public. These resources could be turned to higher pay or better training either of which would ultimately have more impact on the professionalism of the security officers than does the redundant photographing, fingerprinting, etc.
  Finally, Missouri has two major metropolitan areas straddling state boundaries. Both Kansas and Illinois have instituted state-wide licensing for private investigators as have six of the seven other states sharing common borders with Missouri. These states have recognized the necessity for private detective services, the demands from the public for those services, and the geographic breadth of many of these investigations. The failure of the state or the local cities to address this licensing problem will cause the state to fall further behind in the ability to provide services of the type that public agencies can not.
  
  
• 6. It is time for the Missouri Legislature to review Title 17 Code of State Regulations Chapter 10 and overturn the portions that are not good public policy.
  In the most recent enactment of Title 17, Chapter 10, the Kansas City Police Board chose to disregard public comments and enacted a requirement which directly conflicts with the Americans with Disabilities Act. This will eventually cause some private employer or the police Board to be the subject of a civil action to enforce the provisions of the act.

In contesting the actions of the Kansas City Board of Police Commissioners in this case and in presenting these opinions and recommendations, the Kansas Association of Private Investigators is seeking to provide a service to the public. As a group, our members have a wide variety of investigative, police, security and business education, training and experience. It is precisely because of this background that we can see and understand the viewpoints of both the police and the public; both the excesses of those in authority and the unrealistic expectations of those without it. Our purpose is neither to simply accuse nor to simply excuse. The point is to improve the situation for everyone. We encourage the public agencies and the public to explore the questions and issues raised here, and act for the good of everyone.

For more information, contact the Secretary of the Kansas Association of Private Investigators at:
P.O. Box 2111, Overland Park, KS 66201-1111
Web Site: www.kapi.org click on "KAPI and Kansas Private Detective Information and Applications"
e-Mail: kapisec@kapi.org
President: 913-294-4300
Secretary: 913-596-6445

"Who knows what evil lurks in the heart of the Great Plains? The Wheat Stalker knows!" Contact a member of the Kansas Association of Private Investigators today!
Bill Sanders, President
John W. Ellis, Secretary, Kansas Association of Private Investigators

Press Release

For Immediate Release
November 14, 2000
Contact: Bill Sanders, President
Phone 1-913-294-4300
Email Address: bsness2@sps-spi.com

Missouri Appeals Court Reaffirms the Board of Police Commissioners Acted Incorrectly in Raising P.I. Fees

Kansas City, MO - The Missouri Court of Appeals for the Western District today affirmed a lower court ruling that will mean several thousand private investigators are due a refund for their annual license fees, some dating back as far as 1988.

Bill Sanders, President of the Kansas Association of Private Investigators (KAPI) said the ruling will affect between 3500 and 4000 private investigators and security personnel, with individuals' refunds ranging between $800 and $1,000. "The total refunds could amount to around $3 million," he said.

The ruling comes in a suit filed by KAPI on behalf of its membership, and by several of its members individually, after the association challenged an increase in licensing fees for private investigators. The association contended that the Kansas City Board of Police Commissioners, which is responsible for regulating and granting local licenses to private investigators, acted contrary to the Missouri Administrative Procedure Act when it set license fees on several occasions dating back to 1988.

The Act requires that state agencies give notice and allow for public comment when contemplating changes to regulations. KAPI objected to a fee increase instituted in December of 1996 without proper notice from the Board, but its request for review was rebuffed by the Board. An examination of Board actions showed that previous fee amounts, dating back to 1988, had also been instituted without proper notice or opportunity for comment as required by law.

Suit was filed in the Circuit Court of Cole County in Jefferson City. In October, 1999, that court ruled the Board of Police Commissioners had improperly adopted its licensing fees and is obligated to refund all the fees paid since September of 1988. Today's ruling affirmed that decision on appeal.

" No P.I. is going to get rich off this case," Sanders said. "However they are going to get back fees they have already paid in that were improperly charged to them. That is only fair."

"This is a great victory for all the small businesses, the individual private investigators, who were improperly charged these fees," said Douglas S. Stone of the firm of Polsinelli Shalton & Welte, plaintiffs' attorney. "We are gratified that the appellate court recognized that the underlying procedures of the Board were incorrect. The Administrative Procedure Act exists to ensure the public has a chance to review and comment upon proposed changes in regulations brought forward by their state agencies. All we did was make sure they adhered to the steps required of them by law."

October 29, 1999
Press Release

Final Decision in Civil Action
Kansas Association of Private Investigators, et al
vs
Joseph J. Mulvihill, et al (Kansas City Board of Police Commissioners)

CV 198-203-CC

In late 1996, the Kansas City Board of Police Commissioners enacted a large fee increase for private officers. The first notification of the change to fees was given to the licensees in a letter received in December 1996. The size of the fee increase was significant (1100% in some cases) and caused substantial concern to self-employed private investigators and very small investigative firms. These firms expressed their concerns in letters directed to the Board, but the answer received was insufficient. On March 25, 1997, a representative of the Kansas Association of Private Investigators appeared at the regularly scheduled meeting of the Kansas City Police Board to raise their concerns about the effect of this increase and the failure to notify the licensees of it in advance. The response given by the Board in that public meeting is best typified by this quote from Police Commissioner Jeffrey J. Simon."The courthouse is across the street." Today, the Kansas Association of Private Investigators makes its reply to Commissioner Simon, "We found the courthouse."

The Kansas Association of Private Investigators saw four problems with the fee increase:

• a. Fee increase was adopted improperly; RSMo 536.021 specified a procedure which included public notification. This procedure had not been used.
• b. The fee increase was excessive and unreasonable; Missouri case law made it clear that fees could not exceed the amount actually spent on regulation under any circumstances.
• c. The dual requirement of city occupational licenses and separate police board permits was improper; the authority to regulate was delegated to the Police Board only (RSMo 84.720).
• d. The licensing regulation was not being applied equally; police officers working off-duty security weren't being required to meet the licensing requirements.

The Kansas Association of Private Investigators began efforts to resolve the problem simply.

• Attempts were made to negotiate through the Board's attorney, but this produced no effect.



• Contact was made with a Missouri Senator asking that the Attorney General render an opinion on the statute in question. The Attorney General's Office declined to render an opinion.



• An attempt was made to file an administrative review with an outside state agency. This failed as the authority for such a review had been changed by the Missouri Legislature using emergency provisions for changing the statute.

• On 30 January 1998, the Kansas Association of Private Investigators appeared through its attorney, Doug Stone, at a scheduled meeting of the Kansas City Police Board. During the presentation, Commissioner Mulvihill (an attorney), indicated that the Board had already made a decision on this issue, and then accused the KAPI attorney of simply running up a legal bill. With that clearly close-minded and arrogant attitude publicly demonstrated again, the KAPI attorney began the final draft of the civil action.

Support in the investigative community was widespread, but some Missouri firms and investigators feared retribution. They declined to come forward for this reason, even though they agreed that the Board's action was improper. The Kansas Association of Private Investigators agreed to step forward as the primary plaintiff; its 'outsider' position meant that it would be less seriously affected than those members of the industry whose businesses were located inside Kansas City, MO. Some firms chose to support the action behind the scenes, providing financial support, but no public support. In February 1998, a class action civil suit (K.A.P.I. et al vs Joseph J. Mulvihill, et al CV 198-203-CC) was filed in the Circuit Court of Cole County in Jefferson City, MO. The case had seven counts and three classes of plaintiffs. The counts can be summarized as follows:

• I - Title 17 Code of State Regulations requires that all persons or organizations providing services are required to obtain a license, but the included definitions for the classification system left out portions of the security services typically provided. This made it impossible to determine what type of license was required when providing these services.
• II - The Board of Police Commissioners was required to adopt fees as a rule or regulation under the provisions of a specific state statute. This was not done in 1996; therefore the fee increase was legally invalid. Enforcement of nonpayment of these fees was, therefore, also legally invalid and denied a property interest of the licensee who was terminated.
• III - The Board of Police Commissioners was required to adopt fees as a rule or regulation under the provisions of a specific state statue. This had not been done for any fee dating back to 1988. Fees charged during this period were also legally invalid.
• IV - The fee increase implemented in 1996 was unreasonably high.
• V - The Board of Police Commissioners was not requiring Kansas City Police officers to meet the requirements of Title 17 when working off-duty even though the state regulation did not specifically exempt police officers and clearly stated that 'all persons' were required to obtain a license. This constituted unequal enforcement.
• VI - Certain members of the Police Board and Police Department violated the civil rights of certain plaintiffs by failing to adopt the fees as a regulation as required by law and then enforcing the improperly adopted fees. When made aware of the error, the defendants persisted in enforcement 'under the color of law."
• VII - Certain members of the Police Board and Police Department violated the civil rights of certain plaintiffs by failing to adopt the fees as a regulation as required by law and then enforcing the improperly adopted fees. When made aware of the error, the defendants persisted in enforcement 'under the color of law."

The three classes of plaintiffs were:

• I - Persons and entities who were licensed on December 17, 1996 and February 3, 1997 (Approximately 3,500).
• II - Persons and entities who were licensed on February 3, 1997 and paid less than the full renewal fee, but were relicensed anyway (approximately 40). These members were later terminated for non-payment.
• III - Persons and entities who were licensed at anytime after September 29, 1988 (approximately 3,500).

A restraining order was requested in the filing; it was denied by the judge.

The defendants responded to the filing and then moved the case to the federal district court using an option available to them under the civil rights counts. It was refiled as K.A.P.I et al vs Mulvihill et al 98-4056-CV-C-BA in the Central Division, Western District of Missouri.

In November 1998, the federal district court issued a summary judgment on Counts VI and VII. The judge ruled that the Board of Police Commissioners was entitled to either legislative immunity or qualified immunity under Missouri statues since it was performing a legislative role in enacting the regulation. Qualified immunity would apply if the commissioners had a 'reasonable belief' that they were acting within their authority. The federal judge then declined to rule on the remainder of the issues and referred them back to state court.

On 29 April 1999, a decision was reached by the state court on Counts II and V. Count II was decided in favor of the plaintiffs, the fee structure implemented in 1997 is legally invalid. Count V was decided in favor of the defendants; police officers are not required to hold private officer licenses when working off-duty. However, this decision was reached on the basis of a KCMo Police Department policy which limits police officers in this setting to just enforcing laws; they can not perform or enforce rules of the employer. This means that they are effectively prohibited from providing 'security services;' they may only provide 'law enforcement services.'

In response to this ruling, the Private Officer Licensing Section reverted to the 1988 fee levels and made persons licensing sign a 'notice' that their fees might be higher. They declined a request to refund fees collected under the high rate.

On October 28, 1999 Judge Brown issued a final decision on the remaining counts.

• On Count I, the definition of 'security services', a determination of regulated services was made based on a Joint Stipulation by the parties.



• On Count II, the 1996 fee increase, the judge ruled that the plaintiffs were entitled to a refund as a matter of law; the fees had previously been ruled illegal.



• Count III, the 1988 level fees, the judge ruled that these fees were illegal and ordered a refund as a matter of law.



• Count IV, the unreasonableness of the fees, became a moot issue since the fees were illegally implemented.

The practical effect of the rulings is this:

• The Kansas City Board of Police Commissioners must immediately refund approximately $2,000,000 to $3,000,000 in illegally collected fees.



• The Kansas City Board of Police Commissioners has no legal fee stucture in place for private officers; it must pass a new regulatory fee structure using the procedure specified in RSMo 536.021.



• The Kansas City Board of Police Commissioners has limited its regulation of private investigations to selected areas; those areas primarily pertain to criminal investigations and armed investigators.



• The Kansas City Board of Police Commissioners is entitled to immunity when it acts in a legislative role, and may, under some circumstance, be entitled to 'qualified immunity.'



• The St. Louis Board of Police Commissioners may be affected by the fee ruling in this case. If its fees were adopted in a similar manner, the St. Louis Board would probably be required to return any fees collected and to adopt a new structure also. While this ruling is not binding on St. Louis, it establishes a clear case precedent that would be applicable to their operations.

The final points to make are what questions remain. The public should consider the following:

• Why did a police board composed of two attorneys, two PhDs and a Doctor of Theology with the advice of two additional attorneys fail to follow a simple statute in the adoption of fees? The statute involved (RSMo 536.021) is neither complex nor obscure. It was easily understood on the first reading by a private investigator who is educated, but is not an attorney. This interpretation was upheld by the court. If one citizen could understand it on the first reading, why couldn't the police board and its attorneys?



• When confronted with the error, why did this police board arrogantly state "the courthouse is across the street?" rather than simply fix the problem? Why did they compound this initial, arrogant error by publicly accusing the plaintiff's attorney of engaging in unethical conduct (simply running up a legal bill) rather than simply fix the problem?



• Why was it necessary for a group of private investigators to engage in negotiations and legal action for nearly three years to fix a simple mistake? Why is the public going to foot legal bills for over $100,000 to fix a simple mistake when its representatives were offered the opportunity to simply fix it for free?



• Why did so many Missouri citizens and businesses refuse to step forward, expressing fear of the Police Board?



• Should the Board of Police Commissioners be entitled to immunity when it acts improperly in such an arrogant fashion? Is it time to change the structure and power of the police board, particularly in regard to its regulatory powers?



• Was the Board and its legal staff grossly incompetent for not knowing the correct procedure? Or were they grossly unethical for knowing and simply refusing to do it right? In the final analysis, it probably doesn't matter. Either interpretation shows grounds for removal from their positions on the basis of poor performance. The public needs to examine who should be retained.



• Is it in the public's best interest for off-duty police officers to work in security assignments for private employers (providing only law enforcement services) using their city-provided uniforms, equipment, authority, and liability coverage? Does such action violate the letter or spirit of the Missouri statute prohibiting the receipt of rewards, gifts, etc. for doing your duty?

The Kansas Association of Private Investigators is proud to have done its part in this matter. It is now time for the legislators, executives and citizens of Missouri to do theirs.

For more information, contact the Secretary of the Kansas Association of Private Investigators at:

• P.O. Box 2111, Overland Park, KS 66201-1111
• Web Site: www.kapi.org
• e-Mail: kapisec@kapi.org
• President: 913-294-4300
• Secretary: 913-596-6445

"Who knows what evil lurks in the heart of the Great Plains? The Wheat Stalker knows!" Contact a member of the Kansas Association of Private Investigators today!

Bill Sanders, President;
John W. Ellis, Secretary, Kansas Association of Private Investigators