Raymond Alexander v. City of Alexandria

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-452

RAYMOND ALEXANDER

VERSUS

CITY OF ALEXANDRIA, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 245,375
HONORABLE MARY LAUVE DOGGETT, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of J. David Painter, James T. Genovese, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Kelvin G. Sanders
Attorney at Law
Post Office Box 13922
Alexandria, Louisiana 71315
(318) 487-0009
Counsel for Plaintiff/Appellant:
Raymond Alexander

Steven M. Oxenhandler
Michael J. O’Shee
Gold, Weems, Bruser, Sues & Rundell
Post Office Box 6118
Alexandria, Louisiana 71307
(318) 445-6471
Counsel for Defendant/Appellee:
City of Alexandria

Brian D. Cespiva
Attorney at Law
711 Washington Street
Alexandria, Louisiana 71301
(318) 448-0905
Counsel for Defendant/Appellee:
Alexandria Municipal Fire & Police Civil Service Board

KEATY, Judge.

Plaintiff, Raymond Alexander, Sr., appeals the trial court’s judgment in

favor of Defendants, the City of Alexandria (the City) and the Alexandria

Municipal Fire & Police Service Board (the Board). For the following reasons, the

trial court’s judgment is affirmed.

FACTS AND PROCEDURAL BACKGROUND

In this employment termination case, the issue is whether the standards

required by La.R.S. 33:2181(B)(2) for notifying a fireman that he was under

investigation were met. In that regard, Alexander was a firefighter employed by

the Alexandria Fire Department (AFD) who lied about having an ill son in order to

delay having to take a random drug test, which was scheduled for the morning of

March 28, 2012. On the evening prior to the drug screen, Alexander had taken

pain medication not prescribed to him by a doctor, and he feared failing the test for

that reason. Alexander caused further delay by falsely claiming that he was

meeting with his daughter in Lafayette on the morning of March 29, 2012. As a

result of his lies, almost forty-eight hours passed between the time he said he took

the medication and the time he finally took the drug test on the evening of

March 29, 2012. His test results came back as diluted. Alexander was

subsequently terminated by the AFD through written correspondence dated

May 10, 2012.

Alexander appealed his termination to the Board, which affirmed the AFD’s

decision. Alexander then appealed the Board’s decision to the trial court, which

also affirmed the Board’s decision.

In this instant appeal, Alexander assigns as error the trial court’s affirmation

of the Board’s decision not to reverse the AFD’s termination. Alexander contends

that the AFD failed to meet the standards required by Louisiana law, La.R.S.

33:2181(B)(2), for notifying a fireman that he was under investigation.

STANDARD OF REVIEW

The standard of review utilized in this civil service disciplinary matter was

enunciated by the supreme court in Mathieu v. New Orleans Public Library, 09-

2746, pp. 5-6 (La. 10/19/10), 50 So.3d 1259, 1262-63, as follows:

Appellate courts reviewing civil service disciplinary cases are
presented with a multifaceted review function. Bannister [v. Dep’t of
Sts., 95-0404, p. 8 (La. 1/16/96), 666 So.2d 641, 647]; Walters [v.
Dep’t of Police of the City of New Orleans, 454 So.2d 106, 113
(La.1984)]. Initially, deference should be given to the factual
conclusions of the civil service commission. A reviewing court
should apply the clearly wrong or manifest error rule prescribed
generally for appellate review. Bannister, 95-0404 at 8, 666 So.2d at
647; Walters, 454 So.2d at 114. Then, the court must evaluate the
commission’s imposition of a particular disciplinary action to
determine if it is both based on legal cause and is commensurate with
the infraction; the court should not modify the commission’s order
unless it is arbitrary, capricious, or characterized by abuse of
discretion. Id. “Arbitrary or capricious” means the absence of a
rational basis for the action taken, Bannister, 95-0404 at 8, 666 So.2d
at 647; “abuse of discretion” generally results from a conclusion
reached capriciously or in an arbitrary manner, Burst v. Board of
Commissioners, Port of New Orleans, 93-2069, p. 5 (La.App. 1 Cir.
10/7/94), 646 So.2d 955, 958.

Thus, the clearly wrong or manifest error standard of review is applicable in

the instant matter.

DISCUSSION

In his only assignment of error, Alexander contends that the AFD failed to

meet the notification standards required by La.R.S. 33:2181, which provides in

pertinent part:

B. Whenever a fire employee is under investigation, the
following minimum standards shall apply:

....

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(2) The fire employee being investigated shall be informed in
writing at the commencement of any interrogation of the nature of the
investigation, of the identity and authority of the person conducting
such investigation, of the identity of all persons present during such
interrogation, and of the specific charges or violations being
investigated. The fire employee shall be allowed to make notes.

In the present case, the record contains written correspondence from AFD

Fire Chief Bernard Wesley to Alexander dated April 4, 2012. The correspondence

provided Alexander with written notice of the AFD’s initiation of a formal

investigation into his actions. Alexander was further advised of the nature of the

investigation, that AFD Fire Prevention Chief Larry King would conduct the

investigation, and of the specific alleged violations that Chief King would

investigate. The correspondence was signed by both Chief Wesley and Alexander

on April 4, 2012. Under Alexander’s signature, the phrase “Received by

Firefighter Raymond Alexander” is noted.

Following this April 4, 2012 correspondence, Alexander met with Chief

King on April 13, 2012, April 17, 2012, and April 19, 2012. Prior to each meeting,

Alexander was not provided written correspondence similar to the April 4, 2012

written correspondence. In his appellate brief and trial court testimony, Alexander

argues that he should have been provided written correspondence in accordance

with La.R.S. 33:2181(B)(2) and identical to the April 4, 2012 written

correspondence at the beginning of each and every meeting which occurred on

these three dates. Since no written correspondence was received after April 4,

2012, Alexander contends that the AFD failed to comply with La.R.S.

33:2181(B)(2).

Thus, we must determine whether an interrogation occurred on these three

dates. If an interrogation occurred, we must then determine whether the notice

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provided in the April 4, 2012 written correspondence, which complied with the

requirements of La.R.S. 33:2181(B)(2), applied to the April 13, 2012, April 17,

2012, and April 19, 2012 alleged interrogations.

With respect to whether the April 13, 2012 meeting constitutes an

interrogation, we review the record which shows that the May 10, 2012 written

correspondence terminating Alexander was submitted into evidence at the Board’s

hearing which occurred on July 25, 2012. This twelve-page letter plus attachments

provides a factual basis, a timeline of events, truths and mistruths, and the rules

that Alexander violated which led to his termination. Pursuant to this

correspondence, April 13, 2012, was the date of the first internal affairs

investigation meeting between Chief King and Alexander. The correspondence

indicates that at the commencement of that meeting, Alexander signed the

Firefighters’ Bill of Rights. The bill of rights is a reproduction of the provisions of

La.R.S. 33:2181, entitled “Applicability; minimum standards during investigation;

penalties for failure to comply.” Chief King further testified that Alexander signed

the bill of rights. The written correspondence further reveals that Alexander

presented Chief King with a “Timeline and Rebuttal to Administrative Leave

Letter and Investigation.” Both the bill of rights and rebuttal were also submitted

into evidence at the Board’s hearing.

Notably, there is no indication in this May 10, 2012 correspondence, nor

anywhere in the record, that any questions were asked during this April 13, 2012

meeting. At the Board’s hearing, Chief King testified that he did not ask

Alexander any questions on April 13, 2012, but, instead, rescheduled his

investigation for April 17, 2012, in order to review the rebuttal document. Chief

King testified that April 17, 2012, was the first time he actually questioned

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Alexander. Thus, an interrogation did not take place for purposes of La.R.S.

33:2181(B)(2) on April 13, 2012.

Even if an interrogation did occur on April 13, 2012, the elements of La.R.S.

33:2181(B)(2) would be satisfied. Specifically, in Alexander’s written rebuttal that

he provided to Chief King on April 13, 2012, Alexander stated that “[o]n April 4,

2012, I was called to Chief Cook’s[1] office again in order to receive another letter.

This time, Jerald Duncan and Bryant McClendon came with me.” The foregoing

shows that Alexander was in possession of the April 4, 2012 correspondence prior

to the April 13, 2012 meeting. Thus, the requirements of La.R.S. 33:2181(B)(2)

were satisfied.

The Board was also presented with testimony and evidence regarding the

April 17, 2012 meeting. During the hearing, Chief King admitted that an

interrogation occurred on April 17, 2012, although he did not provide Alexander

with any written document immediately prior to that interrogation other than the

Firefighters’ Bill of Rights. Chief King testified that Duncan and McClendon

accompanied Alexander to this interrogation. The bill of rights dated April 17,

2012, shows that Duncan and McClendon accompanied him as they both signed

the bill of rights as witnesses. Thus, Alexander knew who was present at that

interrogation.

Chief King further testified that at the April 17, 2012 interrogation,

Alexander was in possession of the April 4, 2012 written correspondence.

Specifically, Chief King testified that Alexander “had a letter from the chief that

indicated the nature of the investigation.” Importantly, Chief King testified that he

(Chief King) “referred to that [April 4, 2012] letter” during that interrogation.

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First Assistant Chief Bruce Cook was employed by the AFD.

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Alexander’s statement taken during the April 17, 2012 interrogation was also

submitted into evidence at the Board’s hearing. In his statement, Alexander quoted

from the April 4, 2012 letter when discussing the chain of events leading to his

termination.

Based on the foregoing, an interrogation did occur on April 17, 2012. The

evidence shows that Alexander was in possession of the April 4, 2012 letter prior

to and at the April 17, 2012 interrogation. Moreover, Alexander knew who was

present at the interrogation as shown by the bill of rights. Thus, the provisions of

La.R.S. 33:2181(B)(2) were complied with on April 17, 2012.

Finally, a subsequent statement of Alexander taken by Chief King on

April 19, 2012, was also submitted into evidence at the Board’s hearing. In his

statement, Alexander admitted to requesting the instant meeting occurring on

April 19, 2012, in order to discuss more of the situation which occurred on

March 28, 2012, i.e., the day he skipped his drug test. The foregoing shows that it

is questionable whether an interrogation under La.R.S. 33:2181(B)(2) actually

occurred since the meeting was requested by Alexander. Nevertheless, Chief King

once again presented Alexander with the bill of rights. The bill of rights, dated

April 19, 2012, was signed by Alexander, Duncan, and McClendon. Thus,

Alexander knew who was present at that alleged interrogation. Additionally, the

requirements were met during this alleged interrogation for the same reasons they

were met at the April 17, 2012 interrogation and the April 13, 2012 meeting.

Specifically, Alexander was in possession of the April 4, 2012 correspondence

prior to the April 19, 2012 alleged interrogation.

Accordingly, the foregoing shows that Alexander was provided with all

required written information pursuant to the April 4, 2012 correspondence. He

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used that information to provide a rebuttal document. He had the written notice

with him while he was interrogated. He knew exactly what was occurring in

relation to the investigation. Through the written notice and his copies of the bill

of rights, he knew the identity all persons present at each meeting with Chief King.

At the civil service proceeding, the Board was presented with the above

evidence and voted to uphold the AFD’s termination of Alexander. Following the

appeal of the Board’s decision, the trial court stated: “[C]onsidering the standard

of review is clearly erroneous or manifest error, I just don’t see . . . plaintiff

meeting that burden here today and to the extent that I would overturn the decision

of the Board[,] so I’m gonna deny your request.” The trial court then affirmed the

Board’s decision.

Finally, we note that Alexander provided two cases in support of his position.

In his first cited case, Ouachita Parish Police Jury v. Ouachita Parish Fire

Protection District No. 1 Civil Service Board, 46,480 (La.App. 2 Cir. 9/21/11), 72

So.3d 987, a firefighter’s termination was overturned by a civil service board

because his interrogation was not recorded as required by La.R.S. 33:2181(B)(4).

Pursuant to La.R.S. 33:2181(B)(4), “[a]ll interrogations of any fire employee in

connection with the investigation shall be recorded in full.” In the present case,

Alexander’s assignment of error only deals with La.R.S. 33:2181(B)(2) rather than

La.R.S. 33:2181(B)(4). Regardless, there is no issue regarding the recording of

Alexander’s statements as the record contains all of the recorded statements taken

during Alexander’s interrogations. Thus, Ouachita Parish Police Jury is

inapplicable to the present case.

Alexander also cites Bracey v. City of Alexandria, 11-621 (La.App. 3 Cir.

2/1/12), 84 So.3d 669. In Bracey, the main issue was whether the city violated the

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sixty-day investigative period required by La.R.S. 33:2186. Since the issue in the

present case deals with a different statute, i.e., La.R.S.33:2181(B)(2), Bracey does

not offer guidance with respect to the issue in the present case. In fact, this court in

Bracey only briefly mentions La.R.S.33:2181(B)(2) when it recites the statute in

response to the plaintiff’s second and third assignments of error, which this court

found lacked merit. Thus, Bracey is also inapplicable since it provides no

guidance for the interpretation of La.R.S. 33:2181(B)(2).

For the reasons stated above, we find the trial court was not manifestly

erroneous, and its judgment is affirmed.

DECREE

The trial court’s judgment is affirmed. Costs of this appeal are assessed

against Plaintiff/Appellant, Raymond Alexander.

AFFIRMED.

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