Opinion
2021 CA 0381
12-22-2021
IN RE APPEAL OF DEREK BURNS
B. Kyle Kershaw Attorney for Plaintiff/Appellant Baton Rouge, Louisiana Derek Burns Leo C. Hamilton James R. Raines Baton Rouge, Louisiana Attorneys for Defendants/Appellees Chief Murphy Paul and the Baton Rouge Police Department
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana No. 664937 The Honorable Nadine Ramsey, Judge Pro Tempore, Judge Presiding
B. Kyle Kershaw Attorney for Plaintiff/Appellant
Baton Rouge, Louisiana Derek Burns
Leo C. Hamilton James R. Raines Baton Rouge, Louisiana
Attorneys for Defendants/Appellees Chief Murphy Paul and the Baton Rouge Police Department
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
HOLDRIDGE, J.
The appellant, Derek Burns, appeals a judgment of the trial court, which affirmed the decision of the Municipal Fire and Police Civil Service Board (the Board), upholding the termination of employment for the appellant from the Baton Rouge Police Department (BRPD). After reviewing the facts and applicable law, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Derek Burns was employed by the BRPD. On July 3, 2012, Lieutenant David Schultz began investigating the actions of Mr. Burns for a violation of the BRPD disciplinary code. On July 23, 2012, Lieutenant Schultz discovered potential criminal violations that Mr. Burns committed including forgery, injury of public records, and malfeasance in office. Therefore, the disciplinary investigation was converted into a criminal investigation on July 24, 2012. On July 24, 2012, the criminal investigation began, wherein Mr. Burns was arrested and charged on September 6, 2012, with four counts of forgery in violation of La. R.S. 14:72, four counts of injuring public records in violation of La. R.S. 14:132, and four counts of malfeasance in office in violation of La. R.S. 14:134.
On October 4, 2012, the BRPD initiated an Internal Affairs investigation on Mr. Burns for disciplinary purposes only. The Internal Affairs investigation was concluded on November 5, 2012, wherein Mr. Burns was issued a letter stating that a pre-termination hearing was set for November 9, 2012. The letter further stated that Mr. Burns allegedly violated BRPD disciplinary policies: conduct unbecoming an officer, falsification of documents, and truthfulness. Mr. Burns did not appear at his pre-termination hearing. That same day, Mr. Burns was notified by the BRPD that he was terminated effective immediately for the reasons set forth in the pre-termination hearing letter.
Pursuant to Mr. Burns' pre-termination letter, the BRPD policies included the following:
0:0 Violators Subject to Disciplinary Action
All members of the Baton Rouge Police Department, regardless of rank or assignment, are subject to disciplinary action for any violation of the rules, procedures, or departmental policy contained herein or in other procedural manuals issued by the
Department. It is not necessary the violation be intentional, but may be by omission or failure.
2:10 Conduct Unbecoming an Officer
Every member of the Department, whether on or off duty, in an official or unofficial capacity, must conduct himself at all times in such a manner as to set a good example for others with whom he may come in contact. He shall in no way, through actions or neglect, bring dishonor or disgrace upon himself or the Baton Rouge Police Department.
3:19 Falsification of Documents
No employee shall willfully falsify any form, report or document.
3:23 Truthfulness
Every member of the Department is required to be truthful except while conducting investigations that require surreptitiousness.
In November 2012, Mr. Burns filed a petition for appeal with the Board. In his petition for appeal, Mr. Burns argued that his termination was procedurally defective and should be dismissed because the Board did not comply with the time limitation provided for in La. R.S. 40:2531. At the time in question, La. R.S. 40:2531(B)(7) stated:
Louisiana Revised Statutes 40:2531(B)(7) was amended in 2021 by La. Act, No. 451 (eff. Aug. 1, 2021). Therefore, all references made to La. R.S. 40:2531(B)(7) in this opinion are made to the version existing at the pertinent time in 2012.
When a formal and written complaint is made against any police employee or law enforcement officer, the superintendent of state police or the chief of police or his authorized representative shall initiate an investigation within fourteen days of the date the complaint is made. Except as otherwise provided in this Paragraph, each investigation of a police employee or law enforcement officer which is conducted under the provisions of this Chapter shall be completed within sixty days. However, in each municipality which is subject to a Municipal Fire and Police Civil Service law, the municipal police department may petition the Municipal Fire and Police Civil Service Board for an extension of the time within which to complete the investigation. The board shall set the matter for hearing and shall provide notice of the hearing to the police employee or law enforcement officer who is under investigation. The police employee or law enforcement officer who is under investigation shall have the right to attend the hearing and to present evidence and arguments against the extension. If the board finds that the municipal police
department has shown good cause for the granting of an extension of time within which to complete the investigation, the board shall grant an extension of up to sixty days. Nothing contained in this Paragraph shall be construed to prohibit the police employee or law enforcement officer under investigation and the appointing authority from entering into a written agreement extending the investigation for up to an additional sixty days. The investigation shall be considered complete upon notice to the police employee or law enforcement officer under investigation of a pre-disciplinary hearing or a determination of an unfounded or unsustained complaint. Further, nothing in this Paragraph shall limit any investigation of alleged criminal activity.
On December 21, 2017, the Board held a hearing, wherein it upheld Mr. Burns' termination of employment with BRPD. Mr. Burns subsequently filed a petition for judicial review with the Nineteenth Judicial District Court naming as defendants, the BRPD and Chief Murphy Paul. At a hearing on October 5, 2020, the Nineteenth Judicial District Court dismissed Mr. Burns' petition for judicial review and upheld the decision of the Board to terminate his employment with BRPD. The Nineteenth Judicial District Court signed a judgment on November 4, 2020 in accordance with its oral ruling. Mr. Burns devolutively appealed the November 4, 2020 judgment.
We note that Mr. Bums was granted a motion for remand for the record to be supplemented by the Board with written findings of fact. The Board supplemented the record with its findings of fact on September 19, 2019. See In re Burns. 2019-0280 (La.App. 1 Cir. 7/29/19), 2019 WL 3430512, at *1 (unpublished).
Judge Nadine Ramsey served as judge pro tempore by special appointment from the Louisiana Supreme Court.
STANDARD OF REVIEW
Louisiana Revised Statutes 33:2500 governs corrective and disciplinary actions for maintaining standards of service for fire and police departments in municipalities. The grounds for which the appointing authority may remove or discipline a tenured employee are set out in La. R.S. 33:2500(A). Any regular employee in the classified service who feels that he has been discharged or subjected to any corrective or disciplinary action without just cause may demand a hearing and an investigation by the Board to determine the reasonableness of the action. La. R.S. 33:2501(A). At such a hearing, the appointing authority bears the burden of proving by a preponderance of the evidence that a legal cause exists for the disciplinary action imposed. Shields v. City of Shreveport, 579 So.2d 961, 964 (La. 1991); Beck v. City of Baker. 2011-0803 (La.App. 1 Cir. 9/10/12), 102 So.3d 887, 892, writ denied. 2012-2455 (La. 1/11/13), 107 So.3d 617. The employee may appeal any decision of the Board that is prejudicial to him. La. R.S. 33:2501(E)(1).
Pursuant to La. R.S. 33:2501(E)(2) and (3), the role of a reviewing court in civil service appeals is confined to a determination of whether the Board's decision was made in good faith for statutory cause. Shields, 579 So.2d at 964; Landry v. Baton Rouge Police Dept, 2008-2289 (La.App. 1 Cir. 5/8/09), 17 So.3d 991, 995. Courts look only to the evidence presented before the Board and review this evidence in light of the presumption that the Board found sufficient facts to afford a legal basis for its decision. Shields, 579 So.2d at 965; Mcintosh v. Monroe Municipal Fire and Police Civil Service Bd., 389 So.2d 410, 413 (La.App. 2 Cir. 1980), writ denied, 395 So.2d 1363 (La. 1981). The civil service board's factual conclusions should be given deference and will not be overturned if there is any evidence to support them and they are not manifestly erroneous or arbitrary. McDonald v. City of Shreveport, 26, 877 (La.App. 2 Cir. 5/10/95), 655 So.2d 588, 589. Deal v. Monroe Mun. Fire and Police Civil Service Bd., 33, 025 (La.App. 2 Cir. 6/21/00), 764 So.2d 257, 259. However, when reviewing a question of law, appellate review is de novo. Schuler v. New Orleans Police Department, 2020-0563 (La.App. 4 Cir. 4/7/21), 2021 WL 1290645, at *2 (unpublished).
DISCUSSION
In his sole assignment of error, Mr. Burns argues that the trial court erred by refusing to grant his petition for judicial review based on a violation of La. R.S. 40:2531. Specifically, Mr. Burns argues that the administrative investigation resulting in his termination should be declared an absolute nullity because it was not completed within sixty days as required by La. R.S. 40:2531(B)(7). The issue of whether the trial court erred in its application of the sixty-day rule mandated by La. R.S. 40:2531(B)(7) presents an interpretation of law and is subject to a de novo standard of review. See Liang v. Department of Police, 2013-1364 (La.App. 4 Cir. 8/20/14), 147 So.3d 1221, 1225.
Louisiana Revised Statutes 40:2531, the Police Officer's Bill of Rights, specifies the minimum standards to be followed when a police employee or law enforcement officer is under investigation and faces possible disciplinary action, demotion or dismissal. See City of Shreveport v. Shreveport Municipal Fire, 52, 838 (La.App. 2 Cir. 8/14/19), 276 So.3d 1154, 1155; Miller v. City of Gonzales, 2015-1008 (La.App. 1 Cir. 8/31/16), 202 So.3d 1114, 1118. Pertinent to the instant matter is La. R.S. 40:2531(B)(7), which provided at the pertinent time, in part:
When a formal and written complaint is made against any police employee or law enforcement officer, the superintendent of state police or the chief of police or his authorized representative shall initiate an investigation within fourteen days of the date the complaint is made. Except as otherwise provided in this Paragraph, each investigation of a police employee or law enforcement officer which is conducted under the provisions of this Chapter shall be completed within sixty days ... The investigation shall be considered complete upon notice to the police employee or law enforcement officer under investigation of a pre-disciplinary hearing or a determination of an unfounded or unsustained complaint. Further, nothing in this Paragraph shall limit any investigation of alleged criminal activity. (Emphasis added).The phrase "nothing in this Paragraph shall limit any investigation of alleged criminal activity" has been interpreted by the Louisiana Supreme Court to mean "nothing must interfere with a criminal investigation." Pozzo v. Department of Police, 2018-0832 (La.App. 4 Cir. 4/3/19), 267 So.3d 1148, 1153, writ denied, 2019-00695 (La. 9/6/19), 278 So.3d 374. Thus, the sixty-day period does not begin to toll until the criminal proceedings are complete. Id. at 1154.
In the instant matter, the defendants counter that the sixty-day period mandated by La. R.S. 40:2531(B)(7) at the time in question was tolled pending the dismissal of Mr. Burns' criminal charges by the State of Louisiana on March 27, 2017. The statute provided that a disciplinary investigation must be completed within sixty days. However, it also states, "nothing in this paragraph shall limit any investigation of alleged criminal activity." Lieutenant David Schultz began an investigation into the facts surrounding Mr. Burns' alleged violations of the BRPD disciplinary code on July 3, 2012. That investigation was converted into a criminal investigation on July 24, 2012 for alleged forgeries committed by Mr. Burns. Clearly this was an inquiry into "criminal activity" and thus not governed by the sixty-day rule mandated by La. R.S. 40:2531(B)(7).
The record reveals that an internal affairs investigation resumed on October 4, 2012 for disciplinary purposes. The disciplinary investigation was completed on November 5, 2012 when Mr. Burns was given notice of a pre-disciplinary hearing scheduled for November 9, 2012. See La. R.S. 40:2531(B)(7) (An investigation is complete "upon notice to the [police officer] under investigation of a pre-disciplinary hearing or a determination of an unfounded or unsustained complaint."). The total time period from the initiation of the disciplinary investigation on July 3, 2012, until it was converted to a criminal investigation on July 24, 2012 is twenty-one days. Once the disciplinary investigation resumed on October 4, 2012, it was concluded on November 5, 2012, which is thirty-two days. This is a total of fifty-three days that the disciplinary investigation was held, which is less than sixty-days. See Procell v. City of Baker Police Department, 2019-1523 (La.App. 1 Cir. 11/12/20), 2020 WL 6627228, at *5 (unpublished).
Nevertheless, there are several exceptions to the sixty-day rule. The exception the defendants rely on is the exception that exists when the investigation of a police officer concerns criminal conduct. In O'Hern v. Department of Police. 2013-1416 (La. 11/8/13), 131 So.3d 29, 31-33, the Louisiana Supreme Court interpreted the last sentence of La. R.S. 40:2531(B)(7), providing that "[n]othing in this Paragraph shall limit any investigation of alleged criminal activity" to mean the sixty-day period for completion of an investigation does not apply to investigations of conduct involving criminal activity. Procell, 2020 WL 6627228, at *5 (unpublished); see also McMasters v. Department of Police, 2013-2634 (La. 2/28/14), 134 So.3d 1163, 1163-64 (per curiam).
Other exceptions not applicable herein are when an extension is granted by the civil service board upon the appointing authority showing good cause and when the parties enter into a written agreement extending the time for the investigation. La. R.S. 40:2531(B)(7).
In this case, the record is clear that Mr. Burns was investigated and charged with four counts of forgery in violation of La. R.S. 14:72, four counts of injuring public records in violation of La. R.S. 14:132, and four counts of malfeasance in office in violation of La. R.S. 14:134. It was on these criminal charges that Mr. Burns was arrested on September 6, 2012. The criminal charges were allegedly not resolved until March 27, 2017, when the State of Louisiana dismissed the charges.
Although the parties both indicate in their memorandums that Mr. Burns' criminal charges were dismissed on March 27, 2017, the record does not contain a judgment of dismissal. However, because an appeal of a decision of the Board is determined in a summary manner, a decision of the civil service board cannot be disturbed on judicial review if made in good faith and statutory cause. La. R.S. 33:2501(E); Cormier v. City of Lafayette. 2017-1164 (La.App. 3 Cir. 8/29/18), 254 So.3d 773, 776, writ denied. 2018-1616 (La. 12/17/18), 259 So.3d 345.
During the criminal investigation of Mr. Burns' conduct, BRPD suspended its disciplinary investigation from July 23, 2012 to October 4, 2012. Under the exception recognized in O'Hern, the sixty-day period for completion of a disciplinary investigation did not run during this period since BRPD was permitted to defer the disciplinary investigation during the pendency of the criminal investigation. See McMasters, 134 So.3d at 1163-64; O'Hern, 131 So.3d at 31-33. Thus, there was not a violation of the sixty-day rule mandated by La. R.S. 40:2531(B)(7).
Accordingly, after a de novo review of the record, we find that the trial court properly dismissed Mr. Burns' petition for judicial review. This assignment of error has no merit.
CONCLUSION
For the reasons assigned, we affirm the trial court's judgment that dismissed the appellant, Derek Burns', petition for judicial review. Costs of the appeal are assessed to the appellant, Derek Burns.
AFFIRMED.