Mark Wheeler v. Louisiana Peace Officer Standards and Training Council

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT
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MARK WHEELER

VERSUS

LOUISIANA PEACE OFFICER STANDARDS
AND TRAINING COUNCIL

JUDGMENT RENDERED: ' JUN 0 3 2020

Appealed from the
19" Judicial District Court
In and for the Parish of East Baton Rouge • State of Louisiana
Docket Number 653874 • Section 26

The Honorable Donald R. Johnson, Judge Presiding

Remy Voisin Starns ATTORNEYS FOR APPELLANT
Ryan P. Reece DEFENDANT— Louisiana Peace
Metairie, Louisiana Officers Standards and Training
Council

Pamela N. Breedlove ATTORNEY FOR APPELLEE

Bossier City, Louisiana PLAINTIFF— Mark Wheeler

BEFORE: GUIDRY9 MCCLENDON, AND WELCH, JJ.

WELCH, J.

This matter is before us on remand from the Louisiana Supreme Court. The

Council on Peace Officer Standards and Training' (" POST Council") appealed a

judgment of the district court that overruled its peremptory exception raising the

objection of peremption, reversed the POST Council' s decision to revoke Lieutenant

Mark Wheeler' s Peace Officer Standards and Training (" POST") certification, and

reinstated Lt. Wheeler' s POST certification. In an earlier unpublished opinion, this

Court reversed that portion of the judgment of the district court overruling the

objection of peremption, vacated that portion of the judgment reversing the POST

council' s decision and reinstating Lt. Wheeler' s certification, and rendered judgment

dismissing Lt. Wheeler' s petition to appeal the decision of the POST Council.

Wheeler v. Louisiana Peace Officer Standards and Training Council, 2017-

1335 ( La. App. 1St Cir. 3/ 14/ 19) ( unpublished). The Louisiana Supreme Court

granted Lt. Wheeler' s application for writ of certiorari, finding no error in the

judgment of the district court insofar as it overruled the objection of peremption,

reversed this Court' s determination that Lt. Wheeler' s appeal was untimely, and

remanded this case to us for consideration of the remaining issues presented by the

POST Council' s appeal. Wheeler v. Louisiana Peace Officer Standards and

Training Council, 2019- 0584 ( La. 9/ 24/ 19), 279 So. 3d 904. For reasons that

follow, we affirm the judgment of the district court.

FACTUAL AND PROCEDURAL HISTORY

The POST Council falls under the jurisdiction of the Louisiana Commission

on Law Enforcement and Administration of Criminal Justice (" the Commission")

within the office of the governor. La. R.S. 40: 2403( A). The POST Council consists

of the attorney general and eleven designated members of the Commission. La. R.S.

Although the plaintiff named the Louisiana Peace Officers Standards and Training Council as
defendant herein, the proper designation is the Council on Peace Officer Standards and Training.
See La. R.S. 40: 2403.

2

40: 2403( B). In Louisiana, all full-time peace officers must complete a basic training

course, as prescribed and certified by the POST Council. LAC 22: 111. 4703. 2 In

addition, all POST -certified peace officers must comply with the yearly in-service

training and certification requirements set forth in LAC 22: III.4750.

Lt. Wheeler is employed by the Shreveport Police Department ( SPD), and

prior to the events leading up to these proceedings, was a POST -certified peace

officer. On September 15, 2015, Lt. Wheeler went on sick leave because he was

having surgery on his feet, and he returned to work at the SPD in March 2016.

During the calendar year 2015, Lt. Wheeler failed to comply with the yearly in-

service training and certification requirements set forth in LAC 22: III.4750.

Therefore, on June 1, 2016, the Commission, through the POST programs manager,

sent a letter to Lt. Wheeler by certified mail, return receipt requested, which stated

that the POST Council had been notified of his failure to complete the in- service

training and certification requirements for the calendar year 2015, that due to this

deficiency, his POST certification had been " revoked under the authority of

LAC22: III.473I, and that the revocation was effective on May 12, 2016. The letter

also stated that if Lt. Wheeler had any questions or desired to appeal the decision,

he could contact POST at a telephone number provided therein.

On June 10, 2016, counsel for Lt. Wheeler sent a letter to the POST programs

manger indicating that Lt. Wheeler desired to appeal the revocation of his POST

certification on the basis that the revocation was improper because Lt. Wheeler fell

within an exception to ( and therefore, was not required to participate in) the yearly

in- service training and certification requirements. In a July 8, 2016, e- mail, the

POST law enforcement training manager acknowledged Lt. Wheeler' s counsel' s

June 10, 2016 letter and stated that the " appeal letter of [June 10, 2016] fulfills a

2 However, we note that registration may be granted in lieu of certification to peace officers who
were hired prior to January 1, 1986, did not attend POST certified basic training, and are currently
performing duties of a peace officer. See LAC 22: III.4705.

3

request to have the [ POST] [ C] ouncil consider its revocation decision regarding Lt.

Wheeler at its next meeting." The e- mail from the POST law enforcement training

manager also pointed out that "[ a] peace officer whose certification has been revoked

by the council may file an appeal under provisions of the Administrative Procedure

Act under [ La.] R.S. 49: 964," citing LAC 22: 111. 473 1.

On November 17, 2016, the POST Council, at an open meeting, considered

Lt. Wheeler' s request to reverse the revocation of his POST certification and to

waive the training for 2015. After openly discussing the matter with Lt. Wheeler' s

counsel, the POST Council voted and the request was denied.

In December 2016, Lt. Wheeler timely commenced these proceedings in

district court by filing a petition to appeal the POST Council' s decision to revoke

his POST certification. After a hearing on the exception and a review of the

administrative record, the district court rendered and signed a judgment on July 24,

2017, which determined that Lt. Wheeler suffered a substantial loss due to the POST

Council' s revocation of his POST certification and that the POST Council' s decision

to revoke Lt. Wheeler' s certification and its refusal to reinstate his certification were

contrary to law and therefore reversed; and reinstated Lt. Wheeler' s POST

certification. From this judgment, the POST Council has appealed, challenging the

district court' s determination that the POST Council' s decision was contrary to law.'

3 In response to Lt. Wheeler' s petition, the POST Council filed a peremptory exception raising the
objection of peremption and a motion to dismiss on the basis that Lt. Wheeler' s petition seeking
judicial review of the POST Council' s decision was not filed within the 30 -day peremptive period
provided in La. R.S. 49: 964( B); therefore, his right to judicial review was extinguished by
operation of law and should be dismissed. In the judgment on appeal herein, the district court also
overruled the objection of peremption and denied the motion to dismiss, and the POST Council
challenged that ruling on appeal. As previously set forth, this Court reversed that portion of the
judgment of the district court and rendered judgment dismissing Lt. Wheeler' s petition to appeal
the POST council' s decision to revoke his POST certification; however, the Louisiana Supreme
Court reversed that ruling, finding no error in the district court' s ruling on the objection of
peremption. See Wheeler v. Louisiana Peace Officer Standards and Training Council, 2017-
1335 ( La. App. 1St Cir. 3/ 14/ 19) ( unpublished, writ granted, 2019- 0584 ( La. 9/ 24/ 19), 279 So. 3d
904

al

LAW AND DISCUSSION

A reviewing court should afford considerable weight to an administrative

agency' s construction and interpretation of its rules and regulations adopted under a

statutory scheme that the agency is entrusted to administer, and its construction and

interpretation should control unless they are found to be arbitrary, capricious, or

manifestly contrary to its rules and regulations. Delahoussaye v. Board of

Supervisors of Community and Technical Colleges, 2004- 0515 ( La. App. 1St Cir.

3/ 24/ 05), 906 So. 2d 646, 649. Herein, as previously set forth, the POST Council' s

letter to Lt. Wheeler stated that it had been notified that he failed to comply with the

yearly in-service training requirements4 and that due to this in-service training

deficiency, his POST certification had been revoked " under the authority of [LAC

22: III.4731]."

We recognize that LAC 22: III.4731( C)( 3) expressly provides that the

certification of any qualified peace officer " shall be revoked if the officer ... failed

to complete additional training as required/prescribed by the [ Post C] ouncil."

However, this provision was not added to the regulation by amendment of the rule

until June 2018— two years after the POST Council had revoked Lt. Wheeler' s

POST certification. At the time the POST Council revoked Lt. Wheeler' s

certification, LAC 22: III.4731 provided:

A. All law enforcement agencies and correctional agencies and
institutions within the state of Louisiana shall immediately report the
conviction of any POST certified full-time, reserve, or part-time peace
officer to the council.

B. Any offense which results in the individual peace officer' s restriction
of his/ her constitutional right to bear arms shall be grounds for
immediate revocation. The revocation of any certification is effective
immediately when the [ POST C] ouncil receives a certified copy of a
court' s judgment and issues notice to the peace officer. Notice of the
revocation shall be sent via certified US mail to the peace officer and
the officer' s employing agency.

4 The yearly in-service training requirements are set forth in LAC 22: III.4750.

5

C. All criminal convictions involving a peace officer shall be directed
to the [ POST C] ouncil' s attention for potential revocation hearings.
The [ POST C] ouncil shall review each criminal conviction and conduct
hearings on each reported conviction.

D. Any hearings conducted by the [ POST Council shall be conducted
according to guidelines established by the [ POST C] ouncil.

E. Any peace officer whose certification has been revoked may file an
appeal to the decision under the provisions of the Administrative
5]
Procedure Act under R.S. 49: 964. [

In Varner v. Day, 2000- 2104 ( La. App. 1St Cir. 12/ 28/ 01), 806 So. 2d 121, an

inmate was disciplined under an agency rule that had not been published and adopted

in accordance with the Administrative Procedure Act. See La. R.S. 49: 954. 6 On

5 See La. Register, Vol. 25: 665 ( April 1999), as amended by La. Register, Vol. 34: 1927 ( September
2008).

6 Louisiana Revised Statutes 49: 954 provides:

A. No rule adopted on or after January 1, 1975, is valid unless adopted in substantial
compliance with this Chapter. Each rulemaking agency shall file a certified copy
of its rules with the Office of the State Register. No rule, whether adopted before,
on, or after January 1, 1975, shall be effective, nor may it be enforced, unless it has
been properly filed with the Office of the State Register. No rule adopted on or after
November 1, 1978, shall be effective, nor may it be enforced, unless prior to its
adoption a report relative to the proposed rule change is submitted to the appropriate
standing committee of the legislature or to the presiding officers of the respective
houses as provided in R. S. 49: 968. No rule adopted on or after September 12, 1980,

shall be effective, nor may it be enforced, unless the approved economic and fiscal
impact statements, as provided in R.S. 49: 953( A), have been filed with the Office
of the State Register and published in the Louisiana Register. The inadvertent
failure to mail notice and statements to persons making request for such mail notice,
as provided in R.S. 49: 953, shall not invalidate any rule adopted hereunder. A
proceeding under R.S. 49: 963 to contest any rule on the grounds of noncompliance
with the procedures for adoption, as given in this Chapter, must be commenced
within two years from the date upon which the rule became effective.

B. Each rule hereafter adopted shall be effective upon its publication in the
Louisiana Register, said publication to be subsequent to the act of adoption, except
that:

1) If a later date is required by statute or specified in the rule, the later day is the
effective date.

2) Subject to applicable constitutional or statutory provisions, an emergency rule
shall become effective on the date of its adoption, or on a date specified by the
agency to be not more than sixty days future from the date of its adoption, provided
written notice is given within five days of the date of adoption to the governor of
Louisiana, the attorney general of Louisiana, the speaker of the House of
Representatives, the president of the Senate, and the Office of the State Register as
provided in R.S. 49: 953( B). Such emergency rule shall not remain in effect beyond
the publication date of the Louisiana Register published in the month following the
month in which the emergency rule is adopted, unless such rule and the reasons for

M

appeal, this Court observed that fact and held that in reviewing the correctness of the

agency' s disciplinary action, a court must apply the properly promulgated and

adopted rules and regulations that were in effect at the time of the disciplinary action.

See Varner, 806 So. 2d at 125. This Court then applied the corresponding

regulation' that had been properly promulgated and adopted in accordance with the

APA in reviewing the agency' s decision.

In the instant case, as the above -quoted version of LAC 22: III.4731 was

properly promulgated, adopted, and was the only regulation in existence at the time

of Lt. Wheeler' s disciplinary action, then that version of the regulation is the only

one that could be properly applied. Hence, at the time the POST Council revoked

Lt. Wheeler' s POST certification, there was no authority provided in LAC

22: 111. 473 1, nor in any other regulation or statute,' that allowed the POST Council

to revoke a peace officer' s POST certification for noncompliance with training.'

adoption thereof are published in that issue; however, any emergency rule so
published shall not be effective for a period longer than one hundred twenty days,
but the adoption of an identical rule under R. S. 49: 953( A)( 1), ( 2), and ( 3) is not

precluded. The agency shall take appropriate measures to make emergency rules
known to the persons who may be affected by them.

7 The agency rule at issue had a corresponding regulation designated in the Louisiana
Administrative Code. Varner, 806 So. 2d at 125.

8 We note that La. R.S. 40: 2405( J) currently provides that a peace officer' s POST certification
can be revoked for a variety of reasons, including the failure to complete additional training as
required and prescribed by the POST Council. See La. R.S. 40: 2405( J)( 2)( c). However, this
provision was enacted by 2017 La. Acts, No. 271, § 1, eff. June 16, 2017. As such, it was not in
effect at the time the POST Council revoked Lt. Wheeler' s POST certification and is inapplicable
herein.

9 Although the POST Council argues that it was authorized to revoke Lt. Wheeler' s POST
certification based on the plenary power granted to it by the legislature under La. R.S. 40: 2404( 2)
and ( 7), we find no merit to this argument. Louisiana Revised Statutes 40: 2404 provides, in
pertinent part:

In addition to any other powers conferred upon the council elsewhere herein or by
other law, the council shall have the following powers:

2) To develop minimum curriculum requirements for the training of peace officers.

7) To adopt, amend, or repeal rules and regulations to interpret and implement the
provisions of this Act, including, not exclusively, the powers of the council
enumerated herein.

7

Rather, at the time, LAC 22: III.4731 only provided for revocation due to criminal

prosecutions, and as such, is inapplicable here.

Therefore, we find that at the applicable time herein, there was no regulatory

or statutory authority that allowed the POST Council to revoke Lt. Wheeler' s

certification for non-compliance with the yearly in-service training requirements.

As such, the POST Council' s revocation of Lt. Wheeler' s certification was contrary

to the law at the time. 10 Thus, we find no error in the conclusions of the district court

nor in the judgment appealed.

CONCLUSION

For all of the above and foregoing reasons, the July 24, 2017 judgment of the

district court is affirmed. All costs of this appeal in the amount of $1, 666. 00 are

assessed to the defendant/appellant, the Council on Peace Officer Standards and

Training.

AFFFIRMED.

While the POST Council has been granted plenary power to interpret and implement the
POST act, this power is exercised through the adoption, amendment, or repeal of rules and
regulations. As determined herein, at the time the POST Council revoked Lt. Wheeler' s POST
certification, there was no rule or regulation that had been adopted or amended that allowed the
POST Council to revoke a peace officer' s POST certification for noncompliance with its training
requirements. Such a provision was not adopted until two years after Lt. Wheeler' s POST
certification was revoked.

In its brief, the POST Council asserts that because Lt. Wheeler did not raise this argument in the
court below, Uniform Rules— Courts of Appeal, Rule 1- 3 bars this Court from considering the fact
that LAC 22: III.4731 did not provide the failure to timely complete in-service training as a ground
for revocation in 2016. However, Uniform Rules— Courts of Appeal, Rule 1- 3 provides that an
appellate court " will review only those issues which were submitted to the trial court and which
are contained in specification or assignments of error, unless the interest ofjustice clearly requires
otherwise." ( Emphasis added.) Furthermore, La. C. C. P. art. 2164 gives an appellate court the
authority to " render any judgment which is just, legal, and proper upon the record on appeal."
Considering that Lt. Wheeler has consistently challenged the POST Council' s actions as being
contrary to the law, and further considering the fact that both parties have briefed this particular
argument on appeal, we find the argument proper for our consideration. See Thompson v. Winn-
Dixie Montgomery, Inc., 2015- 0477 ( La. 10/ 14/ 15), 181 So. 3d 656, 665; Merrill v. Greyhound
Lines, Inc., 2010- 2827 ( La. 4/ 29/ 11), 60 So. 3d 600, 602.