Opinion
2012 CA 1130
07-01-2013
JASON KING v. TANGIPAHOA FIRE PROTECTION DISTRICT NO. 1
Benjamin M. Chapman Avant & Falcon Baton Rouge, LA Attorney for Plaintiff-Appellant Jason King Scott M. Perrilloux District Attorney Clifton T. Speed Assistant District Attorney Greensburg, LA Attorneys for Defendant-Appellee Tangipahoa Fire Protection District No. 1
NOT DESIGNATED FOR PUBLICATION
On Appeal from the 21st Judicial District Court
Parish of Tangipahoa, Louisiana
Docket No. 2011-0002580, Division "B"
Honorable Bruce C. Bennett, Judge Presiding
Benjamin M. Chapman
Avant & Falcon
Baton Rouge, LA
Attorney for
Plaintiff-Appellant
Jason King
Scott M. Perrilloux
District Attorney
Clifton T. Speed
Assistant District Attorney
Greensburg, LA
Attorneys for
Defendant-Appellee
Tangipahoa Fire Protection
District No. 1
BEFORE: PARRO, WELCH, AND KLINE, JJ.
Judge William F. Kline, Jr., retired, is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.
KLINE , J.
Jason King, a Captain with Tangipahoa Parish Fire Protection District No. 1 (the Department), appeals a judgment upholding a disciplinary decision of the Tangipahoa Parish Fire Protection District No. 1 Civil Service Board (the Board) to suspend him without pay for two days. For the following reasons, we affirm.
Although the petition states that the defendant is the Tangipahoa Fire Protection District No. 1, the defendant's response indicates that the full name of the Department is the Tangipahoa Parish Fire Protection District No. 1, and that the full name of the Board is the Tangipahoa Parish Fire Protection District No. 1 Civil Service Board.
BACKGROUND
On January 14, 2011, Fire Chief Bruce Cutrer and District Chief Tommy Schwebel held a meeting with King to discuss a delayed response to a grass fire that had occurred several days earlier. King had not been with the crew responding to that fire, but had been monitoring the radio calls and knew that the crew had initially passed the location and had to turn around to go back to the fire. The purpose of the meeting with King was to determine whether the 911 dispatch center had given incorrect instructions or whether the fire crew had misunderstood the directions. Prior to the meeting, Cutrer reviewed the 911 tape of the dispatch in question. King's recollection of the 911 dispatch differed from Cutrer's account of it, and they argued for a while about exactly what had been said. Cutrer assured King that he knew what had been said, because he had listened to the tape. At that point, King commented that if the tape of the call did not support his own recollection, then someone must have doctored the tape. Following this meeting, Cutrer prepared a memorandum summarizing it and stated that King's comment was, "Huh, I would bet my next pay check that those tapes were doctored up!"
Also in the room during this meeting was Department employee, Georgette Dupuy.
Three days later, Cutrer and Schwebel picked up King at his work site and took him to the 911 dispatch center to listen to the tape of the call. On the way there, Cutrer reminded King of his comment and told him it was inappropriate. The tape revealed that King indeed had been mistaken about what the dispatcher said with regard to the location of the fire. After listening to the tape, Cutrer asked King to repeat the comment he had made during the January 14th meeting. King admitted that he had said something about the tape being doctored and apologized to the 911 supervisor and to Cutrer.
It is undisputed that King was mistaken about the location provided by the dispatcher. However, King alleged that the tape proved that he was correct in at least one respect, that being his assertion that a name had been mentioned in the course of the dispatch. King testified at the evidentiary hearing that the name he recalled hearing was that of Brennan Kelsey. However, Cutrer disputed that allegation. Cutrer testified that Kelsey's name was never mentioned on the tape. Rather, Cutrer maintained that the name King had supposedly heard was "Leander" (mispronounced as "Lee-Lee-Onder")which is the name of a street, not a person. No transcript of the 911 dispatch appears in the record before us.
Thereafter, Cutrer brought this incident to the attention of the Board at its February 10, 2011 meeting, asking it to authorize a formal investigation into King's conduct. The Board authorized the investigation and sent a letter to King the following day, informing him that the Board had authorized Cutrer to begin a formal investigation into his conduct for the possible violation of a number of Department rules and LSA-R.S. 33:2560(A)(5).
Pre-disciplinary Hearing
In a letter dated March 23, 2011, King was ordered to appear on March 28, 2011, for a pre-disciplinary hearing. The letter alleged that he had violated: (1) Personnel Policy Manual Addendum, Page Four, Level Two Offense of Disorderly Conduct, by using abusive language and displaying rudeness toward the fire chief; and (2) Louisiana Revised Statute 33:2560(A)(5), by conduct of a discourteous and wantonly offensive nature toward the fire chief. Attached to the letter were Cutrer's memoranda. At the pre-disciplinary hearing, Cutrer submitted into evidence his two memoranda concerning King's comment about "doctoring" the tapes of the 911 dispatch. Cutrer said this comment was the basis of the allegations against King, because it constituted a display of rudeness toward the fire chief and was conduct of a discourteous and wantonly offensive nature toward the fire chief. King then spoke in his defense, admitting he had made a comment to the effect that someone must have doctored the 911 tape, but denying that he had ever raised his voice to Cutrer. He also said he had apologized to the 911 supervisor and to Cutrer, but Cutrer had not acknowledged his apology.
While notice requirements for state and city civil service employees are governed by Louisiana Constitution Article X, §8(A), LSA-R.S. 33:2560(D) is controlling in this matter. Louisiana Revised Statute 33:2560(D) provides: "In 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."
Recommendation to the Board and Board's Response
At a meeting of the Board on April 6, 2011, Cutrer reported that King's statement was not made in a joking manner, but in an aggressive, abrasive manner that would impair the efficient operation of the Department. He said King's comment openly challenged the integrity of the fire chief, and he questioned whether King could enforce Departmental rules if he himself did not comply with those rules. Cutrer recommended that King be suspended for two days (one shift) without pay and concluded with the statement that he was acting in good faith for just cause. The Board unanimously approved the recommendation and advised King in a letter the following day that he would be placed on suspension for two calendar days (one shift), as recommended, at a time to be determined by Cutrer.
Appeal to the Board and Evidentiary Hearing
King appealed the disciplinary action to the Board, as provided by LSA-R.S. 33:2561(A), and an evidentiary hearing was held July 20, 2011, at which counsel for both sides were present and King and Cutrer testified. Both repeated their recollections of the facts. In addition, Cutrer characterized King's comment as arrogant and stated, "Obviously, with the statement that was made, that was an obvious total disrespect for me, to insinuate that I would have doctored up tapes for a dispatch when we are talking about grass fire or any other call." He further stated that when "you have your district chief in a room with you and you have another officer [who] shows total disrespect for the fire chief, you know, that cannot be tolerated in the fire service." Cutrer essentially conceded that there was no actual investigation conducted, because the violation had occurred in his presence during the January 14th meeting and was documented in his memoranda concerning that meeting and the subsequent meeting with the 911 supervisor on January 18, 2011.
On re-cross, King said that before the formation of the police union in June 2008, there had not been any investigations and disciplinary actions through the Board. Sometime after 2008, he alleged that five or six disciplinary actions had occurred through the Board and of that number, four or five involved union members. King said that it was his personal belief that the charges brought against him by Cutrer were related to the fact that he was president of the union, although he admitted that he had no tangible evidence to support that belief. After hearing the testimony of both parties, the Board went into executive session. When the Board members returned, they voted two to one to uphold Cutrer's recommendation.
Appeal to the District Court
King then filed a petition for judicial review of the Board's decision in the district court, as provided in LSA-R.S. 33:2561(E). The trial court reviewed the record and transcript of the proceedings before the Board, and stated in written reasons that the record contained sufficient evidence to support the disciplinary action. He further stated that he was convinced that the decision of Cutrer and the Board was made in good faith and for legal cause, and was not clearly wrong, arbitrary, capricious, nor an abuse of discretion. In a judgment signed February 28, 2012, he affirmed the decision of the Board. King appealed that judgment to this court.
APPLICABLE LAW
Louisiana Revised Statute 33:2560 governs corrective and disciplinary actions for maintaining standards of service for fire and police departments in parishes and fire protection districts. Voltolina v. St. Tammany Fire Dist. 12, 06-1498 (La. App. 1st Cir. 9/19/07), 970 So.2d 1015, 1017. The pertinent part of that statute provides that the appointing authority can remove any employee from service or take such disciplinary action as is warranted by the circumstances, for conduct of a discourteous or wantonly offensive nature toward the public or toward any municipal officer or employee. LSA-R.S. 33:2560(A)(5).
Fire and police civil service laws governing municipalities between 13,000 and 250 000 are found in LSA-R.S. 33:2471 through 2508. The civil service laws applicable to small municipalities and for parishes and fire protection districts, as in this case, are found in LSA-R.S. 33:2531 through 2568. In both sets of statutes, the provisions pertaining to corrective and disciplinary action for maintaining standards of service, appeal of such actions to the civil service board, and right of appeal to the appropriate district court, are virtually identical. Therefore, some of the cited cases may be based on disciplinary actions imposed under LSA-R.S. 33:2500 and reviewed under LSA-R.S. 33:2501, while others are based on disciplinary actions imposed under LSA-R.S. 33:2560 and reviewed under LSA-R.S. 33:2561.
Under the provisions of LSA-R.S. 33:2561(A) and (B)(2), regular employees in the classified service may be subjected to disciplinary action only if the action is taken both in good faith and for cause. See City of Westwego v. McKee, 448 So.2d 166, 169 (La. App. 5th Cir. 1984). "Cause" in Section 2561 is synonymous with legal cause. Mcintosh v. Monroe Mun. Fire & Police Civil Serv. Bd., 389 So.2d 410, 411 (La. App. 2nd Cir. 1980), writ denied, 395 So.2d 1363 (La. 1981). If the evidence shows that the disciplinary action was needed for discipline and efficiency of the Department or was required to avoid some detriment to the Department, the disciplinary action is found to be "for cause." See Martin v. City of St. Martinville, 321 So.2d 532, 535 (La. App. 3rd Cir. 1975), writ denied, 325 So.2d 273 (La. 1976); see also Cherry v. Monroe Man. Fire & Police Civil Service Bd., 514 So.2d 738, 739 (La. App. 2nd Cir. 1987). "Good faith" does not occur if the appointing authority acts arbitrarily or capriciously, or as a result of prejudice or political expediency. Arbitrary or capricious behavior means without rational basis for the action taken. Moore v. Ware, 01-3341 (La. 2/25/03), 839 So.2d 940, 945-46; Becker v. Jefferson Parish Dept. of Parks & Recreation, 09-662 (La. App. 5th Cir. 1/12/10), 30 So.3d 1007, 1013.
Any regular employee in the classified service who feels he has been subjected to corrective or disciplinary action without just cause may demand a hearing and investigation by the Board to determine the reasonableness of the action. See LSA-R.S. 33:2561(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. Ruddock v. Jefferson Parish Fire Civil Serv. Bd., 96-831 (La. App. 5th Cir. 1/28/97), 688 So.2d 112, 114. After its investigation, if the evidence is conclusive, the Board may affirm the appointing authority's action. LSA-R.S. 33:2561 (C)(1); Landry v. Baton Rouge Police Dept., 08-2289 (La. App. 1st Cir. 5/8/09), 17 So.3d 991, 994-95. Alternatively, the Board may modify the disciplinary action taken by the appointing authority, even when the appointing authority has acted in good faith and for cause, when the Board determines that a lesser punitive action would be appropriate under the circumstances. LSA-R.S. 33:2561(C)(1); City of Bossier v. Vernon, 12-0078 (La. 10/16/12), 100 So.3d301,312.
If the decision of the Board is prejudicial to the employee, the employee may appeal the decision to the court of original and unlimited jurisdiction in civil suits of the parish where the Board is domiciled. See LSA-R.S. 33:2561(E). The district court's review of the Board's quasi-judicial administrative determination is an exercise of appellate jurisdiction. Jordan v. City of Baton Rouge, 93-2125 (La. App. 1st Cir. 3/10/95), 652 So.2d 701, 703. Review by the district court does not include a trial de novo. McCoy v. City of Shreveport, 42,662 (La. App. 2nd Cir. 12/5/07), 972 So.2d 1178, 1182. The district court's review is confined to the determination of whether the decision made by the Board was made in good faith for cause under the provisions of LSA-R.S. 33:2531-2568. See LSA-R.S. 33:2561(E); see also Jordan, 652 So.2d at 704. The district court may not substitute its opinion for that of the Board. McCoy, 972 So.2d at 1182. The district court should accord deference to a civil service board's factual conclusions and must not overturn them unless they are manifestly erroneous. Likewise, the intermediate appellate court's review of a civil service board's findings of fact are limited. Those findings are entitled to the same weight as findings of fact made by a trial court and are not to be overturned in the absence of manifest error. Moore 839 So.2d at 946; Almerico v. Harahan Mun. Fire & Police Civil Serv. Bd., 07-502 (La. App. 5th Cir. 11/27/07), 973 So.2d 799, 801, writ denied. 07-2494 (La. 2/22/08), 976 So.2d 1287. Hence, this court may only reverse the Board's findings of fact if they are clearly wrong based on the evidence, or clearly without evidentiary support. Bonin v. Ferrellgas, Inc. 03-3024 (La. 7/2/04), 877 So.2d 89, 95. Moreover, in reviewing the Board's determination that the disciplinary action was based on legal cause and commensurate with the infraction, this court should not disturb the Board's decision unless it is arbitrary, capricious, or characterized by abuse of discretion. Evans v. DeRidder Mun, Fire, 01-2466 (La. 4/3/02), 815 So.2d 61, 66; Smith v. Department of Police, 10-0718 (La. App. 4 Cir. 11/9/10), 51 So.3d 813, 820-21.
ANALYSIS
Under LSA-R.S. 33:2561(E), the district court's review is to be confined to the determination of whether the decision made by the Board was made in good faith for cause. In this case, the Board indicated that it would submit written findings of fact and would forward those findings to counsel for King; however, no written findings of fact appear in the record before us. Nevertheless, based on the Board's approval of the disciplinary action, we conclude that it found that the action was supported by the evidence and was made in good faith and for cause. Since the record includes a full transcript of the proceedings before the Board, as well as documentary evidence, this court can review the record before us in order to determine whether the Board's decision and the district court's judgment should be upheld.
The March 23, 2011 letter, in which King was ordered to appear for a pre-disciplinary hearing, stated that the charges were the possible commission of a Level Two Offense of disorderly conduct by using abusive language and displaying rudeness toward the fire chief, as well as the possible violation of LSA-R.S. 33:2560(A)(5) by exhibiting conduct of a discourteous and wantonly offensive nature toward the fire chief. Both of these charges were based solely on King's comment during the January 14th meeting. According to Cutrer, King said that he would bet his paycheck that the "tapes were doctored."
The Department's Personnel Policy Manual Addendum, page 4, Level Two Offense, Item I states:
Disorderly Conduct. No employee shall use obscene or abusive language toward any supervisor, employee, citizen, or other person. No employee shall display indifference or rudeness towards a supervisor, employee, citizen, or other person.
In that meeting, Cutrer assured King that he had listened to the 911 tape and was correctly conveying the information contained therein. It is undisputed that, in response, King alleged that if the tape supported Cutrer's version as opposed to his own, then the "tapes were doctored." In making such a statement, King not only implied that Cutrer was being dishonest in relating the tape's contents, but further insinuated that if the tape supported Cutrer's account, then it must have been doctored. In doing the latter, the Board could have reasonably concluded that by saying the tape was doctored to support Cutrer's version of events, King was implying that Cutrer had doctored the tape himself or was necessarily complicit with another in such a scheme. Thus, King's statement constituted an allegation of mischief, ill practice, or fraud challenging the integrity of Cutrer. It is noteworthy that this allegation was made in the presence of another Department employee.
In addition, Cutrer maintained that King made the statement in an abrasive and aggressive manner and not at all in a joking fashion. According to Cutrer, the statement King made, and the manner in which he made it, displayed a "total disrespect" for his position as fire chief. To the extent that Cutrer's testimony conflicted with that given by King, the Board obviously chose to credit Cutrer's testimony as opposed to King's version. Accordingly, we find no error in the Board's conclusion that King used abusive language and displayed rudeness toward the fire chief and that he was guilty of conduct of a discourteous and wantonly offensive nature. Nor do we find error in the Board's factual finding that the disciplinary action was imposed in good faith.
Moreover, we find that the Board's decision that the disciplinary action was made in good faith and "for cause" was not arbitrary, capricious, or an abuse of discretion. The record demonstrates that the disciplinary action was necessary for the discipline and efficiency of the Department or to avoid some detriment to the Department. Clearly, the statement made by King amounted to insubordination and undermined Cutrer's authority as fire chief. We agree with the Department's assertion that discipline and respect for leadership are key components of the Department's structure. Firefighters must rely on each other and the leadership structure of the Department for the accomplishment of their mission and for their own safety, as well as the safety of the public. We further agree with the Department that the action of King, in questioning the truthfulness and integrity of Cutrer, cast doubt upon the very leadership structure and respect that the Department relies on. Moreover, as a matter of public safety, the Department must necessarily operate under an exacting set of rules and regulations. As pointed out by Cutrer, King, with the rank of captain, must effectively enforce Departmental rules among his subordinates, and he himself must be accountable in complying with those rules.
Considering that the disciplinary action was imposed in good faith and "for cause" and that one of the rules violated by King constituted a Level Two offense, we see no abuse of discretion in the Board's determination that the imposition of a two-day (one-shift) suspension was proper under the facts of this case. Thus, we affirm the Board's decision and the district court's judgment.
CONCLUSION
For the foregoing reasons, the February 28, 2012 judgment is affirmed. All costs of this appeal are assessed to Jason King.
AFFIRMED.