Robert Pitre Jr. v. Department of Fire

ROBERT PITRE JR. * NO. 2021-CA-0632

VERSUS * COURT OF APPEAL

DEPARTMENT OF FIRE * FOURTH CIRCUIT

* STATE OF LOUISIANA

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TFL
LOVE, C.J., DISSENTS AND ASSIGNS REASONS

I respectfully dissent from the majority opinion, in that I find NOFD’s

actions were timely and would uphold Mr. Pitre’s termination.

The Commission’s findings were as follows:

As a threshold issue, the NOFD’s discipline of
Pitre must comply with the Firefighter’s Bill of Rights.
This Louisiana statute requires that any investigation of a
fire employee be concluded within 60 days, with an
exception for an extension of time. La. R.S. §
33:2186(A). The minimum standards during an
investigation address the written notice to a fire
employee (including the charges against the firefighter),
recording of the interrogation, and the presence of
counsel and/or a representative. La. R.S. § 33:2181. The
Bill of Rights applies only to a “fire employee” defined
as an employee of a fire department “under investigation
with a view to possible disciplinary action, demotion, or
dismissal.” La. R.S. § 33:2181(A)(1). Any discipline
imposed without strict compliance with the minimum
standards is an absolute nullity. La. R.S. §33:2181(C).
Pitre’s position is that the NOFD’s investigation as
to him began on July 8, 2020, when he was interviewed
by the NOFD in connection with Ebbs’s alleged accident
pursuant to the July 8, 2020 Notice of a Formal
Investigation. (Ex. NOFD-3). If such were the case, the
NOFD’s investigation, concluded on September 28,
2020, would not have been concluded within the
statutorily required 60 days, resulting in all discipline
being legally rendered an absolute nullity.
The undersigned Commissioners find that the July
8, 2020 Notice of a Formal Investigation (Ex. NOFD-3)
is ambiguous on its face in that it does not state whether
the investigation being conducted as of that date related
to Ebbs, Pitre, or both. Given that ambiguity, the

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undersigned Commissioners have reviewed all parol and
written evidence submitted at the hearing before the
Hearing Examiner in order to resolve this ambiguity. The
undersigned Commissioners particularly find the
testimony of Superintendent McConnell most compelling
and convincing as to the resolution of this issue. As
indicated above, Superintendent McConnell testified that
Pitre was not being investigated before August 7, 2020
(Tr. at. 204). Thus, the NOFD’s investigation was
concluded within the required 60 days. To find that the
investigation as to Pitre started on July 8, 2020, as Pitre
contends, the undersigned Commissioners would have to
conclude that McConnell’s sworn testimony as to when
the Pitre investigation started is not to be believed.
Upon reviewing the entire record, the undersigned
Commissioners find that the Pitre investigation did not
start before August 7, 2020, when Chief Hardy received
the enhanced version of the video. (Tr. at 63). Although
the July 8, 2020 Notification of a Formal Investigation
and the interview of Pitre on that same date comply with
the requirements of the Firefighter’s Bill of Rights,
NOFD was interviewing Pitre on July 8 as a witness in
connection with the fact-finding investigation of Captain
Ebbs for making false statements. The charges described
in the July 8, 2020, letter (violation of Rule 5.2.1) are the
charges regarding which Ebbs was being investigated as
of that date, not Pitre. Therefore, the NOFD complied
with the 60-day requirement of La. R.S. 33:2186(A)
relative to the Pitre investigation in that the investigation
did not start before August 7, 2020, and concluded on
September 28, 2020.
In addition to the above issue, it is well-settled
that, in an appeal before the Commission pursuant to
Article X, § 8(A) of the Louisiana Constitution, the
appointing authority has the burden of proving by a
preponderance of the evidence: 1) the occurrence of the
complained of activity, and 2) that the conduct
complained of impaired the efficiency of the public
service in which the appointing authority is engaged.
Gast v. Dep’t of Police, 2013-0781 (La. App. 4 Cir.
3/13/14), 137 So. 3d 731, 733 (quoting Cure v. Dep’t of
Police, 2007-0166 (La. App. 4 Cir. 8/1/07), 964 So. 2d
1093, 1094). The Commission has a duty to decide
independently from the facts presented in the record
whether the appointing authority carried its legally
imposed burden of proving by a preponderance of
evidence that it had good or lawful cause for suspending
and terminating the classified employee and, if so,
whether such discipline was commensurate with the
dereliction. Abbott v. New Orleans Police Dep’t, 2014-
0993 (La. App. 4 Cir. 2/11/15); 165 So.3d 191, 197;
Walters v. Dept. of Police of the City of New Orleans,
454 So. 2d 106 (La. 1984).

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The undersigned Commissioners find that NOFD
has carried its burden of showing the complained-of
conduct. It is difficult to reconcile Firefighter Pitre’s
statements with the enhanced video evidence. Clearly,
Pitre was cleaning the station instead of proceeding
directly to a working fire. Further, the overhead doors go
up and down a number of times - including on the
bucket. However, at no time is the overhead door on
Captain Ebb’s legs or ankle. These apparent untruthful
statements by Pitre impaired the efficient operation of the
fire department, interfering with the investigation of
Ebbs’s worker’s compensation claim. (Tr. at 274).
Generally, NOFD must be able to rely on the statements
of its fire personnel. The undersigned Commissioners
further find that the penalty is commensurate with the
dereliction. Pitre’s appeal is DENIED.

Timeliness

As to the standard of review for timeliness, the majority provides the

following principles of law:

This Court acknowledges that “‘deference will be
given to the factual conclusions of the Commission.’”
Moran v. Dep’t of Police, 2018-0433, pp. 7-8 (La.App. 4
Cir. 10/10/18), 257 So.3d 749, 754 (quoting Pope v. New
Orleans Police Dep’t, 2004-1888, p. 6 (La.App. 4 Cir.
4/20/05), 903 So.2d 1, 4) (citation omitted). However,
when the Commission’s decision involves procedure and
interpretation of laws we are not bound by the findings of
the Commission. Russell, 2006-0346, pp. 7-8, 941 So.2d
at 639-40. When the Commission applies incorrect
principles of law, which are prejudicial, legal error
occurs and this Court gives no special weight to the
findings of the Commission. Id. We must exercise our
constitutional duty to review questions of law and make a
determination based on the record.

However, I find the Third Circuit’s outline of the standard of review

regarding the timeliness of an investigation assistive and persuasive. The Third

Circuit found that the standard of review was manifest error because the

Commission made factual determinations and credibility calls. Bracey v. City of

Alexandria, 11-621, pp. 4-5 (La. App. 3 Cir. 2/1/12), 84 So. 3d 669, 673.

Regarding the Commission’s finding of timeliness, the majority concludes:

The basis for Mr. Pitre’s termination was his
responses provided in the July 8, 2020 interview. As

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stated above, the questions in the August 7, 2020
interview were practically identical to those posed in the
July 8, 2020 interview. This finding supports Mr. Pitre’s
contention that he was under investigation as of July 8,
2020. Considering both the July 8, 2020 interview and
July 8, 2020 notification letter, we conclude the
Commission erred in determining that the investigation
into Mr. Pitre did not commence on July 8, 2020 and
timely complied with La. R.S. 33:2186(A).

Unlike the majority, I do not find that Mr. Pitre was under investigation as of

July 8, 2020. The record lacks evidence that, as of July 8, 2020, Mr. Pitre, himself,

was under investigation for making false statements. At the time of the July 8,

2020 interview, wherein Mr. Pitre was asked questions regarding the reported

incident involving Captain Ebbs, NOFD was unaware that Mr. Pitre’s statements

were untrue.

However, On August 7, 2020, the enhanced version of the video was

received. The video revealed that Mr. Pitre’s previous statements were less than

truthful. Mr. Pitre could not be interrogated or investigated for making false

statements prior to NOFD discovering that he may have made false statements.

The Commission stated:

The undersigned Commissioners find that the July
8, 2020 Notice of a Formal Investigation (Ex. NOFD-3)
is ambiguous on its face in that it does not state whether
the investigation being conducted as of that date related
to Ebbs, Pitre, or both. Given that ambiguity, the
undersigned Commissioners have reviewed all parol and
written evidence submitted at the hearing before the
Hearing Examiner in order to resolve this ambiguity. The
undersigned Commissioners particularly find the
testimony of Superintendent McConnell most compelling
and convincing as to the resolution of this issue. As
indicated above, Superintendent McConnell testified that
Pitre was not being investigated before August 7, 2020
(Tr. at. 204). Thus, the NOFD’s investigation was
concluded within the required 60 days. To find that the
investigation as to Pitre started on July 8, 2020, as Pitre
contends, the undersigned Commissioners would have to
conclude that McConnell’s sworn testimony as to when
the Pitre investigation started is not to be believed.

I agree. I find that Mr. Pitre was not being investigated for his own false

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statements prior to August 7, 2020.1 Therefore, I do not find that the Commission

committed manifest error by factually discerning that NOFD complied with the 60-

day requirement of La. R.S. 33:2186(A).

Termination

Having found NOFD’s actions were timely, I address whether NOFD met

the burden of proof regarding Mr. Pitre’s termination.

“The appointing authority has the burden of proving, by a preponderance of

the evidence that the complained-of activity or dereliction occurred, and that such

dereliction bore a real and substantial relationship to the efficient operation of the

appointing authority.” Cure v. Dep’t of Police, 07-0166, p. 2 (La. App. 4 Cir.

8/1/07), 964 So. 2d 1093, 1094. On appeal, “[t]he Commission has a duty to

decide independently from the facts presented whether the appointing authority

had good or lawful cause for taking the disciplinary action and, if so, whether the

punishment imposed is commensurate with the dereliction.” Cittadino v. Dep’t of

Police, 558 So. 2d 1311, 1314-15 (La. App. 4th Cir. 1990). “Legal cause exists

whenever an employee’s conduct impairs the efficiency of the public service in

which the employee is engaged.” Id., 558 So. 2d at 1315. “Thus, ‘[t]he appointing

authority must prove by a preponderance of the evidence the occurrence of the

complained of activity and that the conduct impaired the efficient operation of the

public service.’” Narcisse, 12-1267, p. 7, 110 So. 3d at 697 (quoting Barquet v.

Dep’t of Welfare, 620 So. 2d 501, 505 (La. App. 4th Cir. 1993)).

“The judicial review function in a matter appealed from a civil service

commission is ‘multifaceted.’” Narcisse v. Dep’t of Police, 12-1267, p. 9 (La.

App. 4 Cir. 3/6/13), 110 So. 3d 692, 697-98 (quoting Walters v. Dep’t of Police of

New Orleans, 454 So. 2d 106, 112 (La. 1984)). Findings of fact made by the

1 I also note that the usage of “boilerplate” language in the notification letters does not benefit

either NOFD or employees/potential claimants.
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Commission are reviewed using the manifest error/clearly wrong standard.

Narcisse, 12-1267, p. 9, 110 So. 3d at 698. “A reviewing court should not reverse

a commission conclusion as to the existence or absence of cause for dismissal

unless the decision is arbitrary, capricious or an abuse of the commission’s

discretion.” Walters, 454 So. 2d at 113.

The Commission found:

that NOFD has carried its burden of showing the
complained-of conduct. It is difficult to reconcile
Firefighter Pitre’s statements with the enhanced video
evidence. Clearly, Pitre was cleaning the station instead
of proceeding directly to a working fire. Further, the
overhead doors go up and down a number of times -
including on the bucket. However, at no time is the
overhead door on Captain Ebb’s legs or ankle. These
apparent untruthful statements by Pitre impaired the
efficient operation of the fire department, interfering with
the investigation of Ebbs’s worker’s compensation claim.
(Tr. at 274). Generally, NOFD must be able to rely on the
statements of its fire personnel. The undersigned
Commissioners further find that the penalty is
commensurate with the dereliction. Pitre’s appeal is
DENIED.

The objective video evidence depicted a scenario that did not align with Mr.

Pitre’s statements. Thus, the evidence revealed that Mr. Pitre offered untruthful

statements. The Commission then found that these statements “impaired the

efficient operation of the fire department” and interfered with NOFD’s

investigation of Captain Ebbs. Because of this, the Commission stated that NOFD

could not count Mr. Pitre as a reliable member of the NOFD.

Termination may appear harsh, but was a disciplinary option. NOFD made

the determination that termination was commensurate with the offense. The

Commission found sufficient cause for NOFD’s chosen discipline. Mr. Pitre’s

false statements represent a rational basis for the Commission’s conclusions. As

such, the Commission’s findings were not arbitrary or capricious and did not

constitute an abuse of discretion. Therefore, I would affirm Mr. Pitre’s

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termination.

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