Opinion
No. 58882
Opinion Filed: May 7, 2001
APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY, MISSOURI, THE HONORABLE BYRON L. KINDER, JUDGE
Thomas J. Ray, City Counselor, St. Louis, MO, Edward J. Hanlon, Deputy City Counselor, St Louis, MO, Judith A. Ronzio, Legal Division, St. Louis Police Department, St. Louis, MO, Attorneys for Respondents,
Jeremiah W. (Jay) Nixon, Attorney General, Jefferson City, MO, Robert L. Presson, Assistant Attorney General, Jefferson City, MO, Erwin O. Switzer, III, Chief Counsel, St. Louis, MO, Attorneys for Appellants.
Before Breckenridge, P.J., and Ulrich and Howard, JJ.
Respondents sought a declaratory judgment that they were entitled to coverage under the State Legal Expense Fund, §§ 105.711 to 105.726. Both sides moved for summary judgment. The trial court entered summary judgment in favor of Respondents. This appeal was then taken.
The trial court's judgment is reversed, and the case is remanded to the trial court with directions to enter a judgment for Appellants.
I. Background
Members of the St. Louis Board of Police Commissioners and police officers of the City of St. Louis, the Respondents, filed a declaratory judgment action in the Cole County Circuit Court against the State of Missouri, Missouri Attorney General, Missouri State Treasurer and Missouri Commissioner of Administration, the Appellants. Respondents, who were named as defendants in several tort actions, sought a declaratory judgment that the State Legal Expense Fund, Sections 105.711 to 105.726 ("the Fund"), applied to them.
Both sides moved for summary judgment. Appellants sought summary judgment that the Fund is not required to cover, and the Attorney General is not required to defend, actions brought against members of the Board of Police Commissioners of the City of St. Louis and its employee police officers. Respondents sought partial summary judgment, requesting that the court declare that the Board and individual police officers are within the coverage of the Fund with respect to claims made against them in the performance of their official duties. The trial court granted summary judgment for Respondents after finding that Respondents fell within the purview of the Fund because: (1) the Board of Police Commissioners (hereinafter referred to as "the Board") has been held to be a state agency by the Missouri Supreme Court; (2) individual police officers employed by the Board are declared by statute to be officers of the state under § 84.330; and (3) individual police officers are employees of a state agency, i.e., the Board.
On appeal, Appellants allege that the trial court erred in finding that Respondents were state employees and therefore entitled to coverage under the Fund. We agree and hold that the trial court erred in entering a summary judgment for Respondents. We reverse the trial court's judgment and remand the case to the trial court with directions to enter a judgment for Appellants in accordance with this opinion.
II. Standard of Review
Summary judgment is appropriate if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp . , 854 S.W.2d 371, 377 (Mo.banc 1993); Rule 74.04. We review de novo a trial court's granting of summary judgment. Id . at 376. Because the trial court entered judgment for Respondents, we will review the record in the light most favorable to Appellants and accord Appellants all reasonable inferences that may be drawn from the record. Id .
III. State Legal Expense Fund A. The Fund and Statutory Interpretation :
The issue now before this Court is whether the Board of Police Commissioners of the City of St. Louis and St. Louis police officers (Respondents) are entitled to coverage and representation under the State Legal Expense Fund, §§ 105.711 to 105.726 of the Missouri Revised Statutes.
Section 105.711 provides in pertinent part:
Unless otherwise noted, the statutes cited herein are quoted from RSMo 2000. We recognize that the statutes may have been amended on various occasions, so many of the cases referred to herein were decided under different versions of the statutes. However, for all purposes relevant to this opinion, the statutes have remained virtually unchanged.
1. There is hereby created a "State Legal Expense Fund" which shall consist of moneys appropriated to the fund by the general assembly and moneys otherwise credited to such fund pursuant to section 105.716.
2. Moneys in the state legal expense fund shall be available for the payment of any claim or any amount required by any final judgment rendered by a court of competent jurisdiction against:
(1) The state of Missouri, or any agency of the state, pursuant to section 536.050 or 536.087, RSMo, or section 537.600, RSMo;
(2) Any officer or employee of the state of Missouri or any agency of the state, including, without limitation, elected officials, appointees, members of state boards or commissions and members of the Missouri national guard upon conduct of such officer or employee arising out of and performed in connection with his or her official duties on behalf of the state, or any agency of the state, provided that moneys in this fund shall not be available for payment of claims made under chapter 287, RSMo;
Section 105.716.1 further provides that, except for limited circumstances not now before this court, "[a]ny investigation, defense, negotiation, or compromise of any claim covered by sections 105.711 to 105.726 shall be conducted by the attorney general." In this case, the attorney general's office denied Respondents' demands for representation under the Fund. Respondents alleged, and the trial court found, that the denial was wrong, and they were entitled to coverage under the Fund. Statutory interpretation is a question of law, which this court reviews de novo. Carmack v. Missouri Dep't of Agric . , 31 S.W.3d 40, 46 (Mo.App.W.D. 2000). Section 105.726.2 of the Fund states, "[t]he creation of the state legal expense fund and the payment therefrom of such amounts as may be necessary for the benefit of any person covered thereby are deemed necessary and proper public purposes for which funds of this state may be expended."
Respondents assert that they are entitled to coverage because the Board is a "state agency" and the officers are employees of the Board. The legislature has not specifically defined "state agency" or "employee" for purposes of coverage under the Fund. Likewise, §§ 84.010 to 84.340, under which the Respondents' positions are legislatively established, do not contain express language identifying the Board as a state agency. Without explicit statutory guidance, we must determine Respondents' status under the Fund.
This court's role in interpreting these statutes is to "ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words used in their plain and ordinary meaning." Wolff Shoe Co. v. Dir. of Revenue , 762 S.W.2d 29, 31 (Mo.banc 1988). The particular meaning to be attributed to a specific word and/or phrase "must depend to some extent on the context in which it appears." Butler v. Mitchell-Hugeback, Inc . , 895 S.W.2d 15, 19 (Mo.banc 1995). In interpreting the Fund's coverage, we look to the Fund's history and surrounding circumstances, considering it in light of its object and purpose. See State v. Duffy , 8 S.W.3d 197, 202 (Mo.App.W.D. 1999) (discussing the history and policy underlying the "necessarily incident" exception to accessory liability in interpreting the statute). Regardless, in ascertaining the legislature's intent, we must assume that the legislature did not intend an absurd result. Budding v. SSM Healthcare Sys . , 19 S.W.3d 678, 681 (Mo.banc 2000).
B. History and Purpose of the Fund :
In 1967, the legislature enacted the original Tort Defense Fund at § 105.710. State ex rel. Webster v. McHenry , 719 S.W.2d 849, 852 n. 1 (Mo.App.W.D. 1986), abrogated on other grounds by Cates v. Webster , 727 S.W.2d 901, 907 (Mo.banc 1987). It subsequently repealed the entire Tort Defense Fund and replaced it with the State Legal Expense Fund at § 105.711, effective September 28, 1983. McHenry , 719 S.W.2d at 852 n. 1. "The Fund supplants the former Tort Defense Fund, extending coverage to a broader range of state employees than that afforded by the Tort Defense Fund." In re 1983 Budget for Circuit Court of St. Louis County, Mo . , 665 S.W.2d 943, 944-45 (Mo.banc 1984).
As this Court has described it, "[t]he Fund is merely a voluntary assumption of defense and payment of judgments or claims against state employee[s] sued for their conduct arising out of and performed in connection with official duties on behalf of the state." Dixon v. Holden , 923 S.W.2d 370, 379 (Mo.App.W.D. 1996) (emphasis added). Judge Blackmar's concurring/dissenting opinion in Cates , 727 S.W.2d at 907 , discusses the legislature's purpose in enacting the Fund:
The State Legal Expense Fund exists to protect the covered employees from the burden and expense of civil litigation relating to the performance of their duties. The purposes are apparent. A competent employee, who is in demand elsewhere, may be unwilling to work for the state without protection. Those who do serve may be unwilling to take necessary risks for fear of litigation.
We construe the Fund in light of this purpose.
The trial court declared that Respondents were entitled, under the Fund, to the state's assumption of their defense and payment of judgments or settlements rendered against them in their official capacity. We disagree.
IV. St. Louis Police System
Appellants' primary claim on appeal is that Cates , 727 S.W.2d 901 , stands for the proposition that the Fund provides coverage to only those persons who are paid directly by the state. Thus, because Respondents are not paid by the state, they cannot be covered under the Fund. Respondents reply that the plain language of the Fund "compels the State of Missouri to represent any state agency or officer of the state, not merely those that receive all of their funding or salary from the State Treasury." Thus, because the Board is a state agency and the officers its employees, they are entitled to coverage. Respondents distinguish Cates as addressing only judicial employees.
The critical issue is whether the Board is a "state agency" within the meaning of the Fund.
A. Legislative Creation of the St. Louis Board of Police Commissioners :
The case of State ex rel. Hawes v. Mason , 153 Mo. 23, 54 S.W. 524, 525 (Mo. 1899) discusses the early creation of the Board:
Since the year 1861 a metropolitan police system has been established in the city of St. Louis. The original act will be found in Laws Mo. 1860-61, p. 446. That act supplanted the municipal system which had existed prior to that time, and provided in the third section that a board of police, to be called the "Police Commissioners of the City of St. Louis," consisting of four commissioners, should be appointed by the governor; and these, together with the mayor of the city, were authorized and required to appoint and employ a permanent police force for said city. . . . As indicative of the purpose of the legislature, it may be noted that section 14 of the act of 1861 provided for the organization of the board and notification of the city authorities, and continued: "From and after the first meeting aforesaid, the whole of the then existing police force of the city of St. Louis, both officers and men, shall pass under the exclusive management and control of the said board, and be subject to no other control, and entitled to receive no orders or pay (except arrearages then due) from any other authority, and shall so continue, subject, however, to removal or suspension at the discretion of said board, and with power in said board to fill vacancies until the board shall publicly declare that the organization of the police force created by this act is complete."
(Emphasis added.)
The state created the St. Louis police force out of its duty to protect life, liberty and property and to preserve the public peace and order in every part, division and subdivision of the state. Id . at 529. To sustain its duty, the legislature removed the finances and administration of the police force from the influence of local politics. Id . The scheme of Chapter 84 indicates that the legislature intended for members of the Board, who would ultimately be responsible for the management and control of St. Louis' police force, to be independent of the state and the city.
Since the legislative inception of the Board, several cases have arisen challenging several different aspects of its creation. "[T]here has been much contrariety of opinion and no clear line of delineation in these cases[, and] [t]he statutory provisions and the facts" in the cases "differ considerably." State ex rel. Priest v. Gunn , 326 S.W.2d 314, 323 (Mo.banc 1959) (emphasis added). Our concern is the interrelation between Chapter 84 and the Fund.
We consider the statutes, ordinances, case law and constitution in defining the character of the St. Louis metropolitan police force. The legislature subsequently amended the Act of March 27, 1861, under which the police force was created, on several occasions. The Missouri Constitution of 1875 then provided that the City of St. Louis could frame its own charter subject to and in harmony with the laws of Missouri. Mason , 54 S.W. at 526. Accordingly, article 3, § 26, subsec. 2 of St. Louis' City Charter specifically provided "that no system of police shall be established or maintained other than the present metropolitan system as long as the same is established by law." Although these provisions pertaining to the St. Louis police force have since been amended, repealed and reenacted on repeated occasions, the statutorily created metropolitan police system remains at §§ 84.010- 84.340. Article 6, § 31 of the Missouri Constitution also continues to provide for the St. Louis Charter, "with the powers, organization, rights and privileges permitted [therein] or by law." Article 1, § 1, subsec. 21 of today's St. Louis City Charter continues to permit the city "[t]o provide and maintain police and excise departments when permitted by law."
"A metropolitan police force is a matter of general state concern. . . . The establishment of a metropolitan police system for the large cities is but the exercise of the police power of the sovereign state." State ex rel. Reynolds v. Jost , 265 Mo. 51, 175 S.W. 591, 595-96 (Mo. 1915). In essence, the Missouri Legislature, the people through their enactment of the Missouri Constitution, and the St. Louis City Charter removed control of the St. Louis police system from the city and placed control of the system in the Board of Police Commissioners, because:
"[I]f the local authorities were allowed unlimited discretion to levy or refuse to levy the necessary taxes for the support of the local police force, it might possibly happen that from neglect or refusal to do so one part of the state might be left a prey to disorder and violence, to the general detriment of the state at large. Of course no state could safely for a single day tolerate such a condition of affairs."
Mason , 54 S.W. at 529 (quoting Cooley, Taxation 681 (2d ed.)). As the Missouri Supreme Court further discusses in Mason :
The right to establish the peace and order of society is an inherent attribute of government, whatever its form, and is co-extensive with the geographical limits thereof, and touching every part of its territory. From this duty, existing in the very nature of the state government, flows the corresponding power to impose upon municipalities of its own creation a police force of its own creation.
Id .
B. Police Force at Expense of City of St. Louis, Not the State :
We also consider the financing of the St. Louis police force in scrutinizing this issue. When the legislature established the police force in 1861:
Section 15 of the act [under which the Board was established] made it the duty of the board to estimate the sum of money required for each current fiscal year, to certify the same to the board of common council of the city of St. Louis, who were required in the first appropriation ordinance of the fiscal year to set apart and appropriate the amount so certified, payable out of the net annual revenue of the city of St. Louis.
Mason , 54 S.W. at 525 (emphasis added). The state would not pay for any portion of the St. Louis police force. See Am. Fire Alarm Co. v. Bd. of Police Comm'rs of Kansas City , 285 Mo. 581, 227 S.W. 114, 117 (Mo. 1920) (observing that "the expense of the police systems, including the board of police of the cities, is borne entirely by the municipalities, is paid out of their treasuries" and the mode for raising such funds is set forth in the statutes), abrogated on other grounds by Reifschneider v. City of Des Peres Pub. Safety Comm'n , 776 S.W.2d 1 (Mo.banc 1989); Jost , 175 S.W. at 595-96 (discussing that "it would be taking a step backward in jurisprudence to hold that the state cannot provide a metropolitan police force for our cities, and compel those cities to pay the expenses thereof").
We note that Am. Fire Alarm Co . did not specifically address the issue before this court. Instead, the court stated, "[t]he proposition that the commissioners in so far represent the state that a suit against them is in effect one against the state has not been presented nor considered; and we will only remark that the ultimate liability on the contract declared on is the city's liability, not the state's." 227 S.W. at 121.
This method for funding the police force continues today, with the specifics set forth in Chapter 84 of the Missouri Revised Statutes, which covers the operations of the St. Louis police system. "The scheme of Chapter 84 is that the Board, composed of five civic-minded citizens, (the mayor and four citizens appointed by the Governor) oversees the police department and determines its policies, which are then carried out by the chief of police whom the Board appoints." Wheeler v. Bd. of Police Comm'rs of Kansas City , 918 S.W.2d 800, 804-05 (Mo.App.W.D. 1996) (citing Van Kirk v. Bd. of Police Comm'rs of Kansas City , 586 S.W.2d 350, 353-54 (Mo.banc 1979) and § 84.420.2(2)). Yet, the city is financially responsible for its police force. For example, although the legislature provides annual salary tables setting forth maximum amounts of compensation for members of the police force in § 84.160.2, § 84.160.5 sets forth in pertinent part, "[i]t is the duty of the municipal assembly or common council of [St. Louis] to make the necessary appropriation for the expenses of the maintenance of the police force in the manner herein and hereafter provided." Section 84.210.1 additionally states:
It shall be the duty of [the St. Louis Board of Police Commissioners], annually on or before the last day of February of each year to prepare, in writing, on such forms as may be prescribed for budget preparation purposes by [St. Louis] for departments of city government, an estimate of the sum of money which will be necessary for the subsequent fiscal year, to enable [the Board] to discharge the duties hereby imposed upon [it], and to meet the expenses of the police department. . . . [The Board] shall forthwith certify such estimate to the board of common council or municipal assembly, as the case may be, of [St. Louis], who are hereby required to set apart and appropriate the amount so certified, payable out of the revenue of [the City of St. Louis], after having first deducted the amount necessary to pay the interest upon the indebtedness of said cit[y], the amount necessary for the expenses of the city hospital and health department, the amount necessary for lighting the city, and any sum required by law to be placed to the credit of the sinking fund of said cit[y].
(Emphasis added.) Section 84.210.2 prohibits the city from establishing or funding a police force "other than that organized and employed under sections 84.010 to 84.340." Section 84.220 sets forth sanctions for "obstruct[ing] the execution or enforcement of any of the provisions of sections 84.010 to 84.340."
It is well established that "the state can provide for a metropolitan police system and compel the municipality to provide for the expenses thereof." State ex rel. Sanders v. Cervantes , 480 S.W.2d 888, 890 (Mo.banc 1972). In so holding, the Missouri Supreme Court reasoned:
"It is a mistaken view to urge that the cities alone are interested in this matter of a police force adequate to maintaining the public peace and safety of our citizenship. The state has a vital interest. The citizens of the state, and all parts of it, are forced to these metropolitan centers for business and other reasons. They may not linger long, but, while there, they are entitled to that protection which only an adequate and efficient police force can give. It is not for the cities to say to the state: We will give your citizens just such protection as we think is best. Nor can such cities say to the state: You may man and control the police force if you desire, but if so we will starve your system to death. We hold the purse strings. These municipal corporations are subordinate to the sovereign power of the state, and whilst they do, in a sense, hold the purse strings, they so do by the consent of the state. Without the authority of the sovereign, they would not even have a purse, much less the strings of one. The power which gave them the purse can limit the use of it. The power which placed upon that purse the strings can loosen the strings."
Id . (quoting Jost , 175 S.W. at 594).
C. The Board as a "Hybrid Agency" :
In arriving at the conclusion that the legislature did not intend to cover the Board as a "state agency" under the Fund, we focus on the character and purpose of the Board. We discovered that the Board has traits of both a state agency and a city agency. In effect, the metropolitan police system is both a state institution and a city institution. Jost , 175 S.W. at 598 (Woodson, J., dissenting). Thus, we consider the Board to be a "hybrid agency." See Michaels v. New Jersey , 968 F. Supp. 230, 235-38 (D.N.J. 1997) (In determining that state was not required to defend and indemnify prosecutorial defendants as "state employees" under the New Jersey Tort Claims Act, which provided for representation and indemnification of state employees in N.J.S.A. 59:10A-1 and 59:10-1, the District Court of New Jersey determined that county prosecutors and their subordinates possessed a "hybrid status." That is, when performing classic law enforcement investigative functions they acted as agents of the state, however, the Court predicted that a New Jersey state court would hold that the prosecutorial defendants were not "public employees who traditionally [were] considered State employees," which were the "state employees" the legislature intended to defend and indemnify. Thus, the state was not responsible for defending and indemnifying the county prosecutorial defendants.). (Emphasis in original.)
The scheme of today's Chapter 84 continues the legislature's early intention to remove control over the St. Louis police system from the city and to place control in the Board. The "hybrid" status of the Board partially stems from the fact that although the system was created by the state, as discussed above, the costs for maintaining it are paid out of the city treasury. Am. Fire Alarm Co . , 227 S.W. at 117 .
The St. Louis police officers, as employees of the Board, also possess the status of "hybrid officers":
[M]embers of the police force of St. Louis and Kansas City are officers of their respective cities, and also of the state. [Citations omitted.] Nevertheless, it has been settled by several decisions of this court that the municipal police officers, including the members of the police boards of the two cities, constitute a part of the measures adopted by the state to preserve peace, and protect the legal rights of persons.
Id . at 116-17 (citing Mason , 54 S.W. at 524). Section 84.330, codifies this holding in declaring that "[t]he members of the police force of [St. Louis], organized and appointed by the police commissioners of [St. Louis], are hereby declared to be officers of [St. Louis], under the charter and ordinances thereof, and also to be officers of the state of Missouri."
In the case of State ex rel. Wander v. Kimmel , 256 Mo. 611, 165 S.W. 1067 (Mo. 1914), the Missouri Supreme Court held that a St. Louis policeman was a city officer for purposes of a St. Louis city ordinance which prohibited city officers from receiving witness fees for their testimony. In so holding, the Court considered cases dealing with the metropolitan police force from the standpoint of a state instrumentality for preserving the public peace and safety as well as cases discussing the dual capacity of a police officer as an officer of both the state and city. It found that "[t]hose cases dealing with him from the angle of his state capacity and relation, militate[d] not at all against his having a city relation and being a city officer also." Id . at 1073. The Court stressed the fact that St. Louis pays for its police force. It also relied on Judge Black's holding in the case of Carrington v. City of St. Louis , 89 Mo. 208, 215, 1 S.W. 240, 241 (Mo. 1886), under which notice to a city police officer of a defect in a street or sidewalk was held to be notice to the city because of the officer's relations to the city. Specifically, Kimmel , 165 S.W. at 1073, relied on Judge Black's holding:
It is plain, from these provisions of the law, that the police force constitutes a department of the city government. While the officers are state officers for some purposes, they are also city officers . . . because, for reasons deemed best by the legislature, they are under the control of the commissioners, and not the assembly. We see that by express law they are made city officers.
Carrington , 1 S.W. at 241.
We also find it relevant to our analysis that the state did not assume day-to-day control of the St. Louis Police Department. In legislatively establishing the St. Louis police force, the state enacted particular statutes dictating the duties of the Board, §§ 84.010 to 84.340, but left several aspects of the daily operations of the police force within the discretion of the Board. For example, § 84.170.2 states that "[t]he boards of police [not the city or state] are hereby authorized to make all such rules and regulations, not inconsistent with sections 84.010 to 84.340, or other laws of the state, as they may judge necessary, for the appointment, employment, uniforming, discipline, trial and government of the police." (Emphasis added.) Clearly, the Board is not a "state agency" in the classic sense or for all purposes. The Board and the St. Louis police are creations of a much more unique scheme.
V. The Board is not a "State Agency" Under the Fund
As set forth below, our courts have designated the Board to be a "state agency" for various purposes. Our concern is whether it is a "state agency" for purposes of the Fund. After careful consideration of the relevant statutes, we believe that the legislature's intent in creating and maintaining the Fund is to provide coverage to those agencies and employees whose duties and actions directly impact the whole state and over which the state retains more direct control. A broad reading of the statute to include all agencies that have been judicially designated "state agencies" for purposes other than the Fund would violate the legislative intent.
A. Previous References to the Board as a "State Agency" :
Although we may consult other legislative or judicial meanings which have been attached to the term "state agency," we must also keep in mind that, as previously stated, the particular meaning to be attributed to an undefined statutory term "must depend to some extent on the context in which it appears." Butler , 895 S.W.2d at 19 ; see Boone County v. County Employees' Ret. Fund , 26 S.W.3d 257, 261 (Mo.App.W.D. 2000) (discussing different meanings attached to the term "employee"). We do not consider the cases declaring the Board to be a "state agency" for certain purposes to be binding on the issue of whether it is a "state agency" under the Fund. See Kimmel , 165 S.W. at 1073 (discussing that a police officer "may be called on to act in a dual capacity and in a dual relation"). Nor do we believe that the legislature's establishment of the St. Louis police force, which took control of St. Louis' metropolitan police system from the city, caused the Board to per se be a "state agency" for all purposes. After considering the legislature's use of "state agency," as used in the context of the Fund, we do not believe that the legislature intended the Board and its employees to fall within the ambit of the Fund.
Again, § 105.711 of the Fund does not specifically define "state agency," so we must determine the legislature's intent. As set forth below, several judicial opinions have referred to the Board as a "state agency." Respondents assert that these references clearly bring them under the purview of § 105.711. However, a close reading of those cases that refer to the Board as a "state agency" reveals that the "state agency" designation was in a particular context, not necessarily as used in § 105.711. More recent cases that so refer to the Board pick up the reference from early cases that determined the Board to be a "state agency" in a context quite distinct from that which we now review. See St. Louis Police Officers' Ass'n v. Bd. of Police Comm'rs , 846 S.W.2d 732, 735 (Mo.App.E.D. 1992) (citing State ex rel. Sayad v. Zych , 642 S.W.2d 907, 909-11 (Mo.banc 1982) in stating that the "Board is a state agency funded by the City of St. Louis and currently governed by chapter 84 of the Missouri revised statutes"). Just as the term "state employee" can have different meanings in different statutory contexts, so also can "state agency" have different meanings in different contexts. See Cates , 727 S.W.2d at 906 (holding, "it is clear that the term `employee' may have different meanings in different connections," and, after analyzing statutes relating to judicial employees as state employees, holding that the plaintiff bailiff was a county rather than state employee under the Fund because, as a judicial employee, he received his salary and benefits from the county). The cases relied on by Respondents refer to the Board as a "state agency" in a context relating to the inherent police power of the state because the obligation for police protection ultimately lies with the state. A city is merely a creature of the state, so the state can constitutionally order the city to pay for the police protection it establishes. Likewise, the Board is an "agent" of the state in fulfilling the legislature's mandate. This is a much different context than the "state agency" the legislature intended to cover under the Fund.
Respondents rely primarily upon the Sayad case. 642 S.W.2d 907 . In Sayad , the Court held that the Board is a "state agency" subject to article X, section 21 of the Missouri Constitution (the "Hancock Amendment"), which, effective December 4, 1980, prohibits state agencies from requiring increased activity of cities or other political subdivisions without an attendant state appropriation to cover the increased cost. Id . at 911. A close reading indicates that this designation of the Board as a "state agency" is for purposes of the Hancock Amendment, not necessarily for all purposes. The purpose of the Hancock Amendment is to limit state spending. Missourians for Tax Justice Educ. Project v. Holden , 959 S.W.2d 100, 102 (Mo. 1997). In a broad constitutional interpretation of the Hancock Amendment, the Court found that the Board is a "state agency" thereunder to prevent the state from increasing the level of activity of a political subdivision (the city of St. Louis) without paying for it. Sayad , 642 S.W.2d at 910 . Had the Board not been found to be a "state agency" for purposes of the Hancock Amendment, the Board could impose huge expenses on the city without an appropriation to fund the increase, therefore escaping the purpose of the Hancock Amendment, without the city having any recourse. Id . at 911.
The Court's reasoning was based on the fact that the Board, "to the extent of the state's power, . . . can require the City to appropriate the sum certified by the Police Board to the City. Because the Police Board performs these state functions, it is a state agency for purposes of [the Hancock Amendment]." Id . at 910. It does not mean the Board is an agency of the state for all purposes. Sayad holds only that because of the state functions it performs, the Board is a "state agency" for purposes of the State-mandates provision of the Hancock Amendment. Id . That holding is not binding on the issue now before this court.
Respondents argue that the Sayad opinion was handed down shortly before the legislature established the Fund in 1983. They claim that, in light of the Sayad declaration that the Board is a "state agency," the legislature's failure to expressly exempt the Board means that the legislature intended to cover the Board. Given that the city had apparently been defending Respondents at the time the fund was enacted, we do not believe that the legislature had any reason to consider that it would be providing coverage to Respondents under the fund by using the term "state agency." Thus, we do not find Respondents' argument compelling.
Other cases cited by Respondents, which label the Board a "state agency," are not binding upon this court either because they were also decided in a different context than now before us. See, e.g., State ex rel. Police Comm'rs of City of St. Louis v. St. Louis County Court , 34 Mo. 546, 571 (1864) (declaring "the Police Commissioners are an agency of the State Government, and required to perform within a specified locality some of the most important duties of the government" in holding that the legislative directive concerning the funding of one-quarter of the expenses of the St. Louis police force by St. Louis County for the City of St. Louis is constitutional); Mason , 54 S.W. 524 (concerning the constitutionality of the legislature's mandate that the county and city of St. Louis pay for the operations of the metropolitan police force); Slater v. City of St. Louis , 548 S.W.2d 590 (Mo.App. 1977) (concerning an equal protection claim by an airport police officer, in which the court found that the different treatment of the St. Louis metropolitan police pursuant to statute was constitutional); Cervantes , 480 S.W.2d at 890-91 (concerning the necessity of providing a method of reviewing the non-discretionary acts of any public official or administrative agency of the state); State ex rel. Spink v. Kemp , 365 Mo. 368, 283 S.W.2d 502, 514 (Mo.banc 1955) (concerning Kansas City's appropriation of funds to the Kansas City Police Department pursuant to the "general revenue" provision of § 84.730 RSMo 1949); Gunn , 326 S.W.2d at 322-24 (holding that the statute fixing a maximum police force for the City of St. Louis and the salaries of its members constitutional).
We note that the Missouri Supreme Court has held that although the city is financially responsible for its police force, "it does this pursuant to a law of the state which it has no discretion about obeying. That is, in raising and appropriating funds to support the system, the city acts as an agent of the state." Am. Fire Alarm Co . , 227 S.W. at 117 . Sayad also discusses the city as an agency of the state "`to collect and pay over the tax to liquidate a certain, not an unlimited, sum, when demanded by its other agency, the board.'" Sayad , 642 S.W.2d at 909 (quoting Mason , 54 S.W. at 531). Likewise, as stated in Spink , 283 S.W.2d at 514, the city is "chargeable as a state agency with the maintenance of the state controlled police department." Neither party argues that the city is not an agency of the state, nor do they attempt to argue that, as a "state agency," the city is entitled to coverage under the Fund. However, if we were to follow Respondents' reasoning that the above-mentioned labeling of the Board as a "state agency" and the legislature's failure to specifically exempt the Board from coverage under the Fund results in coverage for the Board and its employees, we would essentially be holding that all entities designated "state agencies" for one purpose or another and their employees fall within the purview of the Fund unless expressly exempted. It would obviously be an absurd result to say that the city is a "state agency" entitled to representation under the Fund.
B. Purpose of the Fund :
As set forth supra, "the State Legal Expense Fund exists to protect the covered employees from the burden and expense of civil litigation relating to the performance of their duties." Cates , 727 S.W.2d at 907 (Blackmar, J., concurring in part, dissenting in part). Considering this legislative purpose in creating the Fund in conjunction with the legislative purpose in establishing the St. Louis Metropolitan police force, we do not believe that the legislature intended the latter to be covered by the Fund. Chapter 84 was developed to set parameters for and take control of St. Louis' police force for the purpose of protecting the city, also a state creation. The St. Louis police force, though a matter of general state concern, exists to serve the city, not the whole state as the Missouri Highway Patrol does. See, e.g., Dixon , 923 S.W.2d at 379 (holding the state liable and responsible under the Fund for the acts of its State Highway Patrol officers). Ultimately, the police force is for the primary benefit of the residents of the city. Its sole reason for being is the city of St. Louis. Chapter 84 was enacted to replace the city's previous police system to avoid corruption. An over-arching theme of the St. Louis police system is that it is funded entirely by the city. Just as the city is responsible for the police force's salaries and expenses, as is the case in the other cities of Missouri, so also should the city of St. Louis continue to be responsible for the legal defense and payment of claims against the Board and its officers. A broad reading of §§ 105.711 to 105.726 to include coverage of the Board and the police officers would violate the intent of our legislature.
We express no opinion concerning the validity of the individual tort claims pending against Respondents that led to Respondents' declaratory judgment action.
VI. Conclusion
Considering the overall structure of the St. Louis police force, including the Board, it is clear that it is a municipal police force, despite its creation by the legislature. In the end, it exists to serve the city of St. Louis and is paid for by St. Louis. To avoid political influence, the police force is not under the day-to-day control of the state or the city, but rather, is subject to the control of the Board, composed of independent commissioners. However, the scope of the Board's activities does not reach statewide; the Board's specific duties do not relate to a statewide purpose. In most respects, the Board is a hybrid agency, having characteristics of both a state agency and a municipal agency. While it has been deemed a "state agency" for several purposes by our courts, those judicial determinations are distinguishable from this case. The issue before us concerns whether the Board is a "state agency" for purposes of the State Legal Expense Fund, §§ 105.711 to 105.726. We determine that it is not. Also, St. Louis police officers are paid by the city and primarily serve the city, and their positions are not embraced by the Fund. That being said, Appellants' second point, relating to trial court error in the event that Respondents were found to be entitled to coverage under the Fund, is moot.
Neither the St. Louis Board of Police Commissioners, nor the St. Louis police officers as the Board's employees are entitled to representation and coverage under the State Legal Expense Fund. Thus, we reverse the summary judgment entered for Respondents. Generally, when a summary judgment is reversed, the cause is remanded for further proceedings consistent with the opinion. However, if, as a matter of law, the respondent is not entitled to judgment, we may direct the circuit court to enter a judgment. Farmers Ins. Co. v. McFarland , 976 S.W.2d 559, 566 (Mo.App.W.D. 1998). We remand the cause to the circuit court to enter a judgment in favor of Appellants on Respondents' claim for coverage under the Fund.