Opinion
2022 CW 1331
06-02-2023
IN RE APPEAL OF MARSHALL MCDERMITT
Brandon Kyle Kershaw Baton Rouge, Louisiana COUNSEL FOR APPELLANT PLAINTIFF- Marshall McDermitt Leo C. Hamilton Druit G. Gremillion James R. Raines Baton Rouge, Louisiana COUNSEL FOR APPELLEE DEFENDANT -- City of Baton Rouge, Baton Rouge Police Department, and Chief Murphy Paul
Appealed from Nineteenth Judicial District Court Parish of East Baton Rouge • State of Louisiana Docket Number 701978 • Section 25 The Honorable Wilson E. Fields, Presiding Judge
Brandon Kyle Kershaw
Baton Rouge, Louisiana
COUNSEL FOR APPELLANT PLAINTIFF- Marshall McDermitt
Leo C. Hamilton
Druit G. Gremillion
James R. Raines
Baton Rouge, Louisiana
COUNSEL FOR APPELLEE DEFENDANT -- City of Baton Rouge, Baton Rouge Police Department, and Chief Murphy Paul
Before: Welch, Penzato, and Lanier, JJ.
WELCH, J.
Marshall McDermitt appeals a judgment of the district court, affirming the decision of the Baton Rouge Municipal Fire & Police Civil Service Board ("the Board") to uphold McDermitt's termination as a police officer from the Baton Rouge Police Department ("BRPD") by its appointing authority, Chief Murphy Paul, and dismissing his petition for judicial review. For reasons that follow, we convert the appeal to an application for supervisory writ, and we deny the writ.
FACTUAL AND PROCEDURAL HISTORY
McDermitt was an employee who had attained permanent status in the civil service system as a police officer. Around 2:30 a.m. on April 7, 2019, McDermitt was dispatched to Reggie's Bar at 1176 Bob Petit Drive in Baton Rouge, Louisiana ("the bar"), where he was informed that a patron of the bar, Mark Patterson, was causing a disturbance in the bar by fighting and refusing to leave the premises. According to McDermitt's report, McDermitt approached Patterson in the parking lot, advised Patterson that he was a police officer, and asked Patterson to walk with him to his police unit. Patterson had a distinct odor of alcoholic beverage emitting from his breath/person. As McDermitt and Patterson were walking to McDermitt's police unit, Patterson attempted to re-engage in the altercation with the individuals in the parking lot. McDemitt ordered Patterson to place his hands behind his back, and Patterson complied. However, according to McDermitt's report, after McDermitt placed one handcuff on Patterson's wrists, Patterson quickly turned around and refused to comply with McDermitt's orders. McDermitt further reported that he attempted to execute a "two on one takedown," but it was unsuccessful. McDermitt then reported that Patterson punched him in the side of the head with a closed fist, so he disengaged Patterson and began punching him several times in the face, chin, and nose area with a closed fist in order to incapacitate him.
McDermitt's body camera video footage corroborated McDermitt's report through the execution of the unsuccessful "two on one takedown;" however, McDermitt's body camera fell off, and the video footage was unclear for approximately eight to nine seconds thereafter. When the video footage cleared up, it corroborated that McDermitt punched Patterson.
Within the next day or two, a video that was taken by a third-party bystander surfaced on social media. The social media video showed that McDermitt attempted to take Patterson to the ground by attacking the lower portion of Patterson's body. When the attempt failed, McDermitt re-established himself and began punching Patterson in the face with a closed fist. The social media video showed that McDermitt struck Patterson in the face ten to eleven times. At no point in the social media video was Patterson observed making any motion of turning around and punching McDermitt on the side of his head with a closed fist, as reported by McDermitt.'
BRPD Internal Affairs became aware of the social media video on April 9, 2019, and thereafter, initiated an investigation into McDermitt on April 11, 2019. As part of the Internal Affairs investigation, Patterson was interviewed on April 22, 2019; McDermitt was interviewed on May 9, 2019, and on May 14, 2019. During McDermitt' s May 9,2019 interview, he indicated that he had reviewed both the body camera video and the social media video, that he did not call for backup because the incident happened quickly, and that he attempted the double leg takedown rather than a taser because of the large crowd in the area. McDermitt verified, after reviewing the social media video, that Patterson did not hit him in the head, as he had previously reported. McDermitt also stated during his interview that he hit Patterson with a closed fist in the chin, nose, and cheek area to gain compliance over Patterson and that he was not trained to hit someone in the face as he did with Patterson. During McDermitt's second interview, when he was asked about his statement that he was trying to incapacitate Patterson to gain compliance, he reiterated that he was never trained to incapacitate anyone under the circumstances. Additionally, at the time of the incident with Patterson, McDermitt was in the BRPD's Early Intervention System due to his pattern of behavior in five prior incidents with the public for which he had been disciplined.
The City of Baton Rouge was subsequently sued by Patterson based on McDermitt's actions in those proceedings entitled "Mark Patterson v. Marshall McDermitt, individually; Murphy Paul, Jr., in his official capacity; Baton Rouge Police Department, through the City of Baton Rouge," Case No. 3:20-cv-00204, on the docket of the United States District Court for the Middle District of Louisiana.
The Internal Affairs investigation was concluded on June 6, 2019, when a pre-disciplinary hearing notice was issued to McDermitt, which advised McDermitt that Chief Paul was considering taking official disciplinary action against him. The pre-disciplinary hearing notice specifically informed McDermitt that his actions may have been in violation of the following BRPD policy and procedures: (1) 2:12 Conduct Unbecoming of an Officer; (2) 3:20 Use of Force; and (3) 3:23 Truthfulness. The pre-disciplinary hearing was held on July 25, 2019. At the conclusion of the hearing, Chief Paul sustained the three violations included in the pre-disciplinary hearing notice, plus two additional violations of BRPD policy and procedures based on the evidence adduced; specifically: (1) 3:17 Carrying Out Orders; and (2) 3:19 Falsification of Documents. Chief Paul then verbally terminated McDermitt. A notice of termination relative to the pre-disciplinary hearing was issued to McDermitt on August 1, 2019, and he signed it on August 21, 2019.
Pursuant to the provisions of La. R.S. 33:2501, et seq., McDermitt appealed Chief Paul's decision to the Board. A hearing before the Board was held on October 26, 2020. In the proceedings before the Board, McDermitt made three motions for summary disposition. The first two motions, which were filed prior to the hearing, were heard by the Board at the beginning of the hearing. In the first motion, McDermit maintained that he was terminated without proper notice because he was verbally terminated on July 25, 2019, but did not receive his written notice of termination until August 20, 2019. McDermitt argued that this violated La. Const. Art. X § 8(A) and La. R.S. 33:2500(D). The motion was denied by the Board.
Louisiana Constitution Article X, section 8(A) provides that, with regard to disciplinary actions, "[n]o person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing. ..."
Louisiana Revised Statutes 3 3:2500(D) provides that "[i]n every case of corrective or disciplinary action taken against a regular employee of the classified service, the appointing authority shall furnish the employee and the board a statement in writing of the action and the complete reasons therefor."
In the second motion, McDermitt maintained that Chief Paul's decision to sustain two additional violations at the conclusion of the pre-disciplinary hearing- 3:17 Carrying Out Orders and 3:19 Falsification of Documents-was a violation of his due process rights under Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). McDermitt argued that he did not receive notice that he was being charged with those two additional violations prior to his disciplinary hearing, and therefore, could not prepare a defense to those claims. At the hearing, BRPD stipulated to striking the two additional violations of 3:17 Carrying Out Orders and 3:19 Falsification of Documents, and the Board voted to accept McDermitt's termination based on the sustained violations set forth in the pre-disciplinary hearing notice-2:12 Conduct Unbecoming of an Officer, 3:20 Use of Force, and 3:23 Truthfulness.
McDermitt's third motion for summary disposition was made and heard by the Board following the testimony of BRPD Corporal Wallace Britton. Corporal Britton, an instructor at the BRPD Training Academy ("the Academy"), was offered by Chief Paul/BRPD and accepted by the Board as an expert in the field of defensive tactics. McDermitt argued that Corporal Britton's testimony established that BRPD violated La. R.S. 40:2531 (commonly referred to as "the Police Officer's Bill of Rights") and his due process rights at the pre-disciplanary hearing. More specifically, McDermitt claimed that Corporal Britton's testimony established that, at the pre-disciplinary hearing, Corporal Britton was subjected to an "interrogation" by Chief Paul and his Deputy Chiefs when they asked Corporal Britton to view the videos of the incident and provide his opinion about whether it complied with the training at the Academy. McDermitt pointed out that this "interrogation" of Corporal Britton occurred after the 60-day deadline to complete the investigation had lapsed, that the "interrogation" of Corporal Britton was not recorded, and that McDermitt was not allowed to have counsel present during that "interrogation" of Corporal Britton. Therefore, McDermitt claimed that under the Police Officer's Bill of Rights, his termination was null and he was entitled to be re-instated. The Board denied the motion.
The provisions of La. R.S. 40:2531 are set forth and discussed hereinbelow.
At the conclusion of the hearing and based on the testimony and evidence presented, the Board voted to uphold Chief Paul's decision to terminate McDermitt. McDermitt then filed, on November 23, 2020, a Petition for Judicial Review in the district court, naming as defendant the City of Baton Rouge through the BRPD ("the City"), represented by its appointing authority, Chief Paul. In McDermitt's petition, he argued that the Board's decision was not made in good faith and for cause and that it was contrary to both the evidence produced at the hearing and the applicable law. McDermitt also argued that his termination was an absolute nullity, and in violation of the law, and further that the appointing authority, i.e., Chief Paul, failed to carry his burden of proof. McDermitt requested that the district court reverse the decision of the Board and that he be reinstated to his position and awarded all benefits and emoluments of service, including back wages and attorney fees.
After a hearing before the district court on July 20, 2022, the district court took the matter under advisement. On August 10, 2022, the district court issued a ruling upholding the decision of the Board. The district court signed a judgment on August 24, 2022, in favor of the City and Chief Paul and against McDermitt, upholding the decision of the Board and dismissing McDermitt's Petition for Judicial Review with prejudice. From this judgment, McDermitt has appealed.
On appeal, McDermitt contends that the district erred by as a matter of law by failing to overturn his termination because of the violations of La. R.S. 40:2531 by the City/Chief Paul with regard to Corporal Britton.
McDermitt also contends that the district court erred by applying the "arbitrary and capricious" standard of review instead of de novo review. The district court, in its oral ruling, stated "that the Board did not act arbitrary or capricious or [do] anything outside of the scope of what the Board had before it," that it was "going to uphold the Board's ruling," and that it was adopting the memorandum in opposition to the Petition for Judicial Review filed by the City of Baton Rouge/BRPD/Chief Paul as its reasons for judgment. Notably, the district court's judgment contains no reference to the standard of review that it applied. This Court reviews judgments- not statements made by the district court during its oral ruling. Therefore, while we will review the correctness of the district court's judgment, as well as the ruling of the Board, in light of the appropriate standard of review, we decline to consider this assignment of error.
JURISDICTION
At the outset, the City and Chief Paul maintain that this Court lacks appellate jurisdiction, and that the proper procedural means for this Court to review the district court's judgment is through the exercise of supervisory jurisdiction. Louisiana Constitution Article V, § 10(A) provides that a court of appeal has appellate jurisdiction over "all civil matters," and that "[i]t has supervisory jurisdiction over cases which arise within its circuit."
Appellate review of decisions by the Board is specifically authorized by La. R.S. 33:2501(E), and pursuant to that provision, the district court was vested with appellate jurisdiction to consider McDermitt's appeal. In Miazza v. City of Mandeville, 2010-0304 (La. 5/21/10), 34 So.3d 849 (per curiam), the Louisiana Supreme Court stated that when the legislature has vested appellate jurisdiction in the district court, as in this case, a court of appeal lacks appellate jurisdiction, and the matter should be reviewed by converting the appeal to an application for supervisory writs. The Louisiana Supreme Court gave a similar directive to this Court in Meiners v. St. Tammany Fire Protection District # 4 Board of Commissioners, 2010-0912 (La. 6/25/10), 38 So.3d 359. See also Caire v. Stassi, 379 So.2d 1056 (La. 1980).
Since Miazza and Meiners , this Court has followed this procedure and converted appeals of district court judgments conducting appellate review of decisions of civil service boards to an application for supervisory writs in several cases, including Dwyer v. West Feliciana Fire Protection District # 1 Civil Service Board, 2011-1096 (La.App. 1st Cir. 12/21/11), 80 So.3d 1229; Baton Rouge Police Department v. O'Malley, 2010-1386 (La.App. 1st Cir. 3/25/11), 64 So.3d 773; Beck v. City of Baker, 2011-0803 (La.App. 1st Cir. 9/10/12), 102 So.3d 887, writ denied. 2012-2455 (La. 1/11/13), 107 So.3d 617; Sanders v. City of Mandeville Municipal Police Department, 2018-0125 (La.App. 1st Cir. 11/2/18), 2018 WL 5792011 (unpublished); Kistler v. City of Denham Springs, 2018-0249 (La.App. 1st Cir. 2/7/19), 2019 WL 480117 (unpublished); and In Re Jackson, 2019-0164 (La.App. 1st Cir. 1/2/20), ___So.3d___, 2020 WL 42051, writ denied, 2020-00202 (La. 4/27/20), 295 So.3d 403. Therefore, we convert McDermitt's appeal to an application for a supervisory writ and review the merits.
We note, however, that some cases have continued to review such district court judgments under its appellate jurisdiction. See King v. Tangipahoa Fire Protection Dist. No. 1, 2012-1130 (La.App. 1st Cir. 7/1/13), 2013 WL 3367569 (unpublished); Andel v. City of Mandeville, 2014-1415 (La.App. 1st Cir. 4/24/15), 2015 WL 1882643 (unpublished); Hagan v. City of Gonzales, 2015-0020 (La.App. 1st Cir. 9/18/15), 2015 WL 5515192 (unpublished); Miller v. City of Gonzales, 2015-1008 (La.App. 1st Cir. 8/31/16), 202 So.3d 1114; In re Appeal of Burns, 2021-0381 (La.App. 1st Cir. 12/22/21) 2021 WL 6064210 (unpublished). However, given the directives from the Louisiana Supreme Court in Miazza and Meiners and since this Court clearly has supervisory jurisdiction over this case (as a case arising within this circuit), we convert McDermitt's appeal to an application for supervisory writ.
There is no dispute that McDermitt's motion for appeal was filed within the thirty-day time period allowed for the tiling of an application for supervisory writs under Rule 4-3 of the Uniform Rules, Courts of Appeal.
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). These grounds include, but are not limited to: the failure to perform the duties of his position in a satisfactory manner; the commission of any act to the prejudice of the departmental service or contrary to the public interest or policy; conduct of a discourteous or wantonly offensive nature toward the public and any dishonest, disgraceful, or immoral conduct; or any act or failure to act which the Board deems sufficient to show that the offender to be an unsuitable or unfit person to be employed in the respective service. See La. R.S. 33:2500(A)(1), (2), (5), and (15). 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 legal cause exists for the discharge or for corrective or disciplinary action imposed. Shields v. City of Shreveport, 579 So.2d 961, 964 (La. 1991); Beck , 102 So.3d at 892; Miller , 202 So.3dat 1118.
Fire and police civil service laws governing municipalities between 13,000 and 250,000 persons are found in La. R.S. 33:2471 through 33:2508. The civil service laws applicable to small municipalities and for parishes and fire protection districts with persons 7,000 or more but less than 13,000 persons are found in La. R.S. 33:2531 through 33:2568. In both sets of statutes, the provisions pertaining to the corrective and disciplinary action for maintaining standards of service, the appeal of such actions to the civil service board, and the right of appeal to the appropriate district court, are virtually identical. Therefore, the jurisprudence involving disciplinary actions imposed under La. R.S. 33:2560 and reviewed under La. R.S. 33:2561 is applicable to cases involving disciplinary actions imposed under La. R.S. 33:2500 and reviewed under La. R.S. 33:2501. See Hagan v. City of Gonzales, 2015-0020 (La.App. 1st Cir. 9/18/15), 2015 WL 5515192, *2 n.3 (unpublished); King v. Tangipahoa Fire Protection Dist No. 1, 2012-1130 (La.App. 1st Cir. 7/1/13), 2013 WL 3367569, *3 n.6 (unpublished).
The employee may appeal any decision of a civil service board that is prejudicial to him; this appeal shall lie direct to the court of original and unlimited jurisdiction in civil suits of the parish wherein the board is domiciled. La. R.S. 33:2501(E)(1). The district court shall hear the matter in a summary manner, and its review of the board's action is limited to a finding of whether the board's decision was made in good faith for cause. La. R.S. 33:2501(E)(2) and (3); Moore v. Ware, 2001-3341 (La. 2/25/03), 839 So.2d 940, 945; Landry v. Baton Rouge Police Dept., 2008-2289 (La.App. 1st Cir. 5/8/09), 17 So.3d 991, 995; Miller , 202 So.3d at 1118. If based on good faith and statutory cause, a decision of the board cannot be disturbed on judicial review. Good faith does not occur if the appointing authority acted arbitrarily or capriciously or as a result of prejudice or political expediency. Arbitrary or capricious means the lack of rational basis for the action taken. Moore , 839 So.2d at 945-946; Miller , 202 So.3d at 1118. Additionally, cause sufficient for the imposition of discipline means conduct that impairs the efficiency of the public service in which the employee is engaged. Marsellus v. Dep't of Public Safety and Corr., 2004-0860 (La.App. 1st Cir. 9/23/05), 923 So.2d 656, 660; Miller , 202 So.3d at 1118.
District and appellate courts should accord deference to the factual conclusions of the board and must not overturn them unless they are manifestly erroneous. Moore , 839 So.2d at 946; Landry , 17 So.3d at 995; Miller , 202 So.3d at 1118. Moreover, as the finder of fact that personally observed the witnesses, the board's credibility determinations are entitled to great weight. Hagan , 2015 WL 5515192 at *3; James v. City of Baton Rouge Through Dept. of Public Works, 489 So.2d 1308,1310 (La.App. 1st Cir. 1986); Miller , 202 So.2d at 1118. However, when reviewing a question of law, appellate review is de novo. In re Appeal of Burns, 2021 WL 6064210 at *2.
LAW AND DISCUSSION
At the pertinent time period herein, Louisiana Revised Statutes 40:2531 provided, in pertinent part:
Louisiana Revised Statutes 40:2531 was amended by 2021 La. Acts, No, 451. Of the provisions pertinent to this appeal, the only provision affected by the amendment was subsection (B)(7), which changed the deadline within which the investigation of the police officer must be completed from sixty days to seventy-five days.
A. The provisions of this Chapter shall apply only to ... those law enforcement officers employed by any municipality ... who are under
investigation with a view to possible disciplinary action, demotion, or dismissal.
B. Whenever a police employee or law enforcement officer is under investigation, the following minimum standards shall apply:
(1) The police employee or law enforcement officer being investigated shall be informed, at the commencement of interrogation, of the nature of the investigation and the identity and authority of the person conducting such investigation, and at the commencement of any interrogation, such officer shall be informed as to the identity of all persons present during such interrogation. The police employee or law enforcement officer shall be allowed to make notes.
(2) Any interrogation of a police employee or law enforcement officer in connection with an investigation shall be for a reasonable period of time and shall allow for reasonable periods for the rest and personal necessities of such police employee or law enforcement officer.
(3) All interrogations of any police employee or law enforcement officer in connection with the investigation shall be recorded in full. The police employee or law enforcement officer shall not be prohibited from obtaining a copy of the recording or transcript of the recording of his statements upon his written request.
(4)(a) The police employee or law enforcement officer being questioned, whether as a target or as a witness in an administrative investigation, shall have the right to be represented by counsel, other representative, or both, of the police employee or law enforcement officer's choice.
* * *
(7) When a formal, written complaint is made against any police employee or law enforcement officer, ...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
C. There shall be no discipline, demotion, dismissal, or adverse action of any sort taken against a police employee or law enforcement officer unless the investigation is conducted in accordance with the minimum standards provided for in this Section. Any discipline, demotion, dismissal, or adverse action of any sort whatsoever taken against a police employee or law enforcement officer without complete compliance with the foregoing minimum standards is an absolute nullity.(Emphasis added).
McDermitt asserted to the Board and the district court, and he now asserts to this Court, that the City/Chief Paul violated this statute because the evidence at the hearing before the Board established that there was an "interrogation" of Corporal Britton by Chief Paul and his Deputy Chiefs at the pre-disciplinary hearing, which was part of BRPD Internal Affairs' investigation into McDermitt, was beyond the sixty-day deadline set forth in La. R.S. 40:2531(B)(7) for completing the investigation, and was not recorded as required by La. R.S. 40:2531(B)(3). Therefore, McDermitt contends that, based on these violations, his termination from BRPD by Chief Paul was an absolute nullity under La. R.S. 40:2531(C). We disagree.
The crux of McDermitt's argument is that Corporal Britton was subjected to an "interrogation" that was in connection with or part of BRPD Internal Affairs' investigation into McDermitt. Notably, the term "interrogation" is not defined in La. R.S. 40:2531. However, this Court has previously held that the term "interrogation," as used in La. R.S. 40:2531 contemplates the formal or systematic questioning of a law enforcement officer. See Andel , 2015 WL 1882643 at *6 and Miller , 202 So.3d at 1119-1120.
While La. R.S. 40:2531 contains no definition of the term "interrogation," a similar statute- La. R.S. 33:2181 (commonly referred to as "the Fire Employee's Bill of Rights")-does define the term "interrogation." In that statute, "interrogation" is defined to include, but is not limited to, "any formal interview, inquiry, or questioning of any tire employee by the appointing authority or the appointing authority's designee regarding misconduct, allegations of misconduct, or policy violation."
In Andel , 2015 WL 1882643 at *1-2, Lloyd Andel was a police officer that was disciplined by the police chief for violating the police department's policies regarding security details and for insubordination. Prior to the imposition of discipline, Andel's supervisor became aware that Andel had been violating the police department's policies, despite having been previously warned about doing so. After the supervisor received a written statement from a third-party about Andel's violation of the policies, the supervisor called Andel into his office to advise Andel that he (the supervisor) was recommending that disciplinary action be taken against Andel and to offer Andel the opportunity to explain why the supervisor should not make that recommendation. Id. at *2-3. At the time of that conversation, the supervisor already had all of the information he needed to recommend disciplinary action against the police officer. Id.
After Andel was disciplined, he appealed the matter to the applicable police civil service board, claiming the supervisor's failure to record the conversation was a violation of La. R.S. 40:2531(B)(3) because that conversation constituted an "interrogation." Id. at * 1 and *6. The police civil service board denied the appeal, and the police officer then appealed to the district court. Id. at * 1. The district court affirmed the police civil service board's decision on the basis that it was made in good faith and for cause. Id. The district court further found that there was no violation of La. R.S. 40:2531 because there was no investigation and Andel was not interrogated. The police officer then appealed to this Court. Id.
This Court recognized that the term "interrogation" was not defined in La. R.S. 40:2531, but noted that it was defined in Black's Law Dictionary (8th Ed. 2004) as "[t]he formal or systematic questioning of a person; esp., intensive questioning by the police, usu. of a person arrested for or suspected of committing a crime." Id. at *6. After considering this definition, this Court found "that the term 'interrogation' in the Police [Officer's] Bill of Rights contemplated the formal or systematic questioning of a law enforcement officer." Id. This Court then concluded that there was no evidence in the record demonstrating that the supervisor engaged in formal or systematic questioning of Andel; therefore, the Police Officer's Bill of Rights did not mandate that their conversation be recorded. Thus, there was no error in the Board or the district court's determination that the police department did not violate La. R.S. 40:2531(B)(3).
In Miller , 202 So.3d at 1116-1117, Davin Miller was a police officer and was notified by the police chief that he was the subject of an administrative investigation for possible violations of the police department's standard operating procedures. During the investigation, the police chief conducted several interviews of Miller, including an interview on August 15, 2013. Id. Approximately eleven days after that interview, the police chief ordered Miller to submit to a polygraph examination to determine the truthfulness of the statements made by Miller during the August 15, 2013 interview. Id. The polygraph examination was not recorded, despite Miller's request to record it, and Miller was denied the assistance of counsel during the polygraph examination. Id. at 1119. During the polygraph examination, Miller was only asked two questions. Id. Thereafter, Miller was ordered to appear at a pre-disciplinary hearing in reference to seven charges. Id. at 1116-1117. After the hearing, the police chief notified Miller that he determined that Miller had violated the police department's standard operating procedures, and he terminated the Miller from the police department. Id. at 1117.
Miller appealed his termination to the applicable police civil service board and that board unanimously upheld the disciplinary action imposed. Id. Miller then appealed to the district court, and the district court concluded that the police civil service board acted in good faith for cause and upheld the board's decision. Id. Miller then appealed to this Court, asserting that his due process rights were violated because the investigation was not conducted in compliance with the minimum standards set forth in La. R.S. 40:2531 for interrogations, as he was not allowed to record the questioning during the polygraph examination and was denied assistance of counsel during the polygraph examination. Id.
After pointing out that La. R.S. 40:2531 did not define the term "interrogation," this Court noted that Andel , relying in part on Black's Law Dictionary, had held that the term "interrogation" as used in La. R.S. 40:2531 "contemplate[d] the formal or systematic questioning of a law enforcement officer." Id. at 1119-1120. After examining and considering the facts and circumstances of Andel with the facts and circumstances of the polygraph examination of Miller, this Court found that they were clearly distinguishable. Id. at 1120. This Court recognized that a polygraph examination was, by its very nature, a formal or systematic questioning, and further, that Black's Law Dictionary (10th Ed. 2014) incorporated the word "interrogation" in its definition of "polygraph." Id. This Court also noted that the polygraph examination was conducted prior to any disciplinary determination being made and took place during the investigative phase of the internal inquiry into Miller's alleged misconduct. Id. Therefore, this Court found that the polygraph examination of Miller constituted an "interrogation" under La. R.S. 40:2531(B)(3). Id. Given that Miller's request to record the polygraph examination was denied, this Court concluded that the disciplinary action imposed against Miller-his termination-was null pursuant to La. R.S. 40:2531(C) and that the district court erred in affirming the board's decision to uphold the Miller's termination. Id.
Notably, both Andel and Miller involved the factual determination of whether the questioning of a police officer, who was the target of or the subject of the investigation, was an "interrogation" for purposes of La. R.S. 40:2531. In Andel , we determined that the questioning was not an "interrogation" because at the time of the questioning, the supervisor already had all of the information he needed to recommend disciplinary action against Andel, there was no pending investigation against Andel, and Andel was simply being afforded the opportunity to explain why the supervisor should not make the recommendation for discipline. Thus, there was no evidence that the questioning of Andel was a formal or systematic questioning in connection with an investigation. In Miller , we determined that the questioning was an interrogation, because Miller was still under investigation, no disciplinary determination had been made, and it involved a polygraph, which by its nature and definition, was a formal or systematic questioning.
In this case, Corporal Britton was not the target or the subject of the BRPD Internal Affairs' investigation, nor was Corporal Britton a witness to McDermitt's actions on April 7, 2019. According to Corporal Britton's testimony before the Board, he was familiar with the incident on April 7,2019, involving McDermitt only because he viewed both McDermitt's body camera video and the social media video of the incident. Corporal Britton was offered by Chief Paul and the City as an expert in use of force and defensive techniques, was accepted by the Board as an expert in defensive tactics, and his testimony before the Board consisted of a step-by-step critique of McDermitt's technique and use of force on April 7, 2019, and whether it complied with BRPD policy and training tactics at the Academy.
When Corporal Britton was questioned before the Board about when he first viewed the video, he responded that it was several months prior, when he first learned that he was probably going to testify on the matter, and that prior to that date, he never met with Chief Paul or the Deputy Chiefs. When he was questioned about the exact date, Corporal Britton did not realize, until his testimony before the Board, that it was at the pre-disciplinary hearing when he first viewed the video. According to Corporal Britton, on that date, he was contacted by either Chief Paul or one of the Deputy Chiefs to come to Chief Paul's office because they "need[ed] [him] to look at something." After Corporal Britton went inside Chief Paul's office, the video was played for him and thereafter, "[a] lot was discussed about, about the manuals, [and] what was taught" at the Academy. Corporal Britton explained that he was "just told basically [to] look at the video and then, you know, you know, basically think about it, what do you, what do you think, what do you think about this." While Corporal Britton admitted that he was asked questions, he could not recall all of the conversation, other than there were discussions, and that the questions he was asked were essentially about what was taught at the Academy and whether what he saw on the video complied with the training at the academy.
Based on our review of Corporal Britton's testimony, we find no support for McDermitt's contention that Corporal Britton's conversation with Chief Paul and the Deputy Chiefs constituted "a formal or systematic questioning" or an "interrogation" of Corporal Britton in connection with BRPD Internal Affairs' investigation of McDermitt. While this conversation included some questions, those questions were of an open-ended nature, i.e., "what do you think," and concerned Corporal Britton's opinion on McDermitt's actions-his technique and use of force-and whether it complied with BRPD policy and training tactics at the Academy. Notably, McDermitt had already admitted-on two separate occasions during the BRPD Internal Affairs' investigation-that he was not trained to respond to Patterson in the manner that he did. The pre-disciplinary hearing notice issued to McDermitt established that the BRPD Internal Affairs' investigation into McDermitt had already been concluded and that prior to the pre-disciplinary hearing, Chief Paul already had all of the information from that investigation that he needed to take disciplinary action against McDermitt for his violation of BRPD policy and procedures with regard to use of force, as well as conduct unbecoming of an officer and truthfulness. The Board, in denying McDermitt's motion for summary disposition, obviously concluded that the conversation between Corporal Britton and Chief Paul and the Deputy Chiefs and the questions asked therein regarding Corporal Britton's opinion of McDermitt's actions was not an "interrogation" of Corporal Britton in connection with the investigation of McDermitt, and we find no error- legal or manifest-in that determination. Accordingly, both the Board and the district court properly determined that the City and Chief Paul did not violate La. R.S. 40:2531.
Therefore, after a thorough review of the record before us, we find no error in the Board or the district court's conclusion that McDermitt's termination from the BRPD was made in good faith and for cause. Therefore, the district court's judgment, affirming the decision of the Board to uphold Chief Paul's termination of McDermitt is affirmed.
CONCLUSION
For all of the above and foregoing reasons, we convert Marshall McDermitt's appeal to an application for supervisory writ and deny the writ application. The district court's judgment affirming the decision of the Baton Rouge Municipal Fire & Police Civil Service Board to uphold Marshall McDermitt's termination as a police officer from the Baton Rouge Police Department by its apponting authority, Chief Murphy Paul, and dismissing Marshall McDermitt's petition for judicial review is affirmed.
All costs of this proceeding are assessed to Marshall McDermitt.
APPEAL CONVERTED TO APPLICATION FOR SUPERVISORY WRIT; WRIT DENIED; JUDGMENT AFFIRMED.