Colleen Townsend v. City of Leesville

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-923

COLLEEN TOWNSEND

VERSUS

CITY OF LEESVILLE

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 88,028
HONORABLE VERNON B. CLARK, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.

REVERSED.

Daniel M. Landry, III
Attorney at Law
Post Office Box 3784
Lafayette, Louisiana 70502
(337) 237-7135
Counsel For Plaintiff/Appellant:
Colleen Townsend

Cloyd Benjamin, Jr.
Law Office of Cloyd Benjamin, Jr.
726-B Third Street
Natchitoches, Louisiana 71457
(318) 352-7575
Counsel for Defendant/Appellee:
City of Leesville

KEATY, Judge.

Plaintiff, Colleen Townsend, appeals the trial court’s judgment in favor of

Defendant, City of Leesville. For the following reasons, the trial court’s judgment

is reversed.

FACTS AND PROCEDURAL HISTORY

Townsend, a police officer employed by the Leesville Police Department for

eleven years, was terminated from employment on February 11, 2013, for

misconduct. This misconduct arose from an incident when Townsend attempted to

execute a search warrant. Specifically, Townsend called Judge John Ford at his

residence at approximately 2:00 a.m. on November 30, 2012, to obtain his

signature on a search warrant. Judge Ford told her to proceed to his house which

was located at 1461 Ford’s Dairy Road. Instead, Townsend mistakenly went to a

home located at 1367 Ford’s Dairy Road which belonged to Judge Ford’s daughter

and son-in-law, Sarah and Milton Belsha. When she arrived at the Belshas’ home,

Townsend knocked on the carport door. After receiving no response, she

contacted Judge Ford by telephone, and he advised her that a light was on inside of

his residence and instructed her to walk into his residence. Townsend proceeded to

the back of the Belshas’ house where she opened a door and pointed her flashlight

within. Mrs. Belsha heard a noise and awakened Mr. Belsha who ran towards the

door. When he reached the door, which was partially open, he allegedly kicked it

closed. Townsend, who was standing outside behind the closed door, identified

herself to Mr. Belsha as a police officer. Mr. Belsha subsequently opened the door

and told her that she was at the wrong address. Thereafter, Townsend proceeded to

the correct address and obtained Judge Ford’s signature. Upon leaving the

Belshas’ residence, Townsend radioed the police dispatcher, Elizabeth Chapman,

and asked her to note her mistake as it might become an issue in the future.

Although she thinks she may have mentioned this incident to her shift advisor at

the end of her shift, Townsend did not report this incident to anyone else.

The next day, Judge Ford learned about this incident from his wife who

learned about it from their daughter, Mrs. Belsha. A few days later, he

subsequently discussed the situation with Jack Simms, Jr., the Leesville City

Attorney. Simms then told Gregory Hill, the Leesville Chief of Police, who

conducted an internal affairs investigation on December 12, 2012. This

investigation revealed that Townsend violated police departmental policies

regarding a shift commander’s duties, personal conduct, and behavior. Townsend

was subsequently terminated from employment by the appointing authority and

City Administrator, Courtney Christensen. After Townsend appealed her

termination to the Leesville Municipal Fire & Police Civil Service Board (the

Board) and following a hearing occurring on April 19, 2013, the Board upheld the

actions of the appointing authority by a three to two vote.

Townsend appealed the Board’s decision to the trial court. After an October

24, 2013 hearing, the trial court found that the Board acted in good faith and had

just cause to terminate Townsend. It is from this ruling that Townsend has

appealed, contending that the trial court erred in finding that the Board acted in

good faith and had just cause when it terminated her from employment.

LAW AND STANDARD OF REIVEW

Louisiana Revised Statutes 33:2501 provides the procedure for appeals by

civil service employees. The standard of review for appealing the Board’s decision

to the trial court is as follows:

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This hearing shall be confined to the determination of whether
the decision made by the board was made in good faith for cause
under the provisions of this Part. No appeal to the court shall be taken
except upon these grounds and except as provided in Subsection D of
this Section.

La.R.S. 33:2501(E)(3). Good faith fails to occur when the appointing authority

acts arbitrarily or capriciously or results from prejudice or political expediency.

Martin v. City of St. Martinville, 321 So.2d 532 (La.App. 3 Cir. 1975), writ denied,

325 So.2d 273 (La.1976). Arbitrary or capricious behavior occurs when there is a

lack of a rational basis for the action taken. Shields v. City of Shreveport, 579

So.2d 961 (La.1991).

“Legal cause for disciplinary action exists if the facts found by the

commission disclose that the conduct of the employee impairs the efficiency of the

public service.” Leggett v. Nw. State Coll., 242 La. 927, 140 So.2d 5, 9 (1962). A

real and substantial relationship must be maintained “between the conduct of the

employee and the efficient operation of the public service; otherwise legal cause”

fails to exist and “any disciplinary action by the commission is arbitrary and

capricious.” Id. at 10. The action taken by the appointing authority “must be set

aside if it was not taken ‘for cause,’ even though it may have been taken in good

faith.” Martin, 321 So.2d at 535.

“The [a]ppointing [a]uthority has the burden of proving by a preponderance

of the evidence the occurrence of the complained of activity and that the conduct

complained of impaired the efficiency of the public service.” Fernandez v. New

Orleans Fire Dep’t, 01-436, p. 4 (La.App. 4 Cir. 2/6/02), 809 So.2d 1163, 1165. A

classified employee has a property right in his employment which he cannot be

deprived of without legal cause and due process. Moore v. Ware, 01-3341 (La.

2/25/03), 839 So.2d 940. The trial court accords deference to a civil service

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board’s factual conclusions which should not be overturned unless they are

manifestly erroneous. Shields, 579 So.2d 961. Likewise, the intermediate

appellate court and our review of a civil service board’s factual findings are limited.

Id. Those findings, which are entitled to the same weight as the trial court’s factual

findings, cannot be overturned in the absence of manifest error. Id.

DISCUSSION

I. Duties, Conduct, and Behavior

In her only assignment of error, Townsend contends that the trial court erred

in finding that the Board acted in good faith and had just cause when it terminated

her from employment.

The transcript of the Board’s hearing shows that Townsend was terminated

for violating the police department’s rules regarding a shift commander’s duty,

which is contained in the investigative report and provides that:

It shall be incumbent upon any [s]hift [s]upervisor, who becomes
aware of any violation in this Departmental manual, . . . to take the
appropriate action deemed necessary for the severity and or validity of
the violation. Appropriate actions may mean verbal conference with
the affected employee or official action against the affected employee.
Official action will include a [s]hift [s]upervisor conducting an initial
collection of information from the affected [o]fficer(s) by means of
tape recording the entire meeting with the affected [o]fficer and
completing a [s]upervisor’s [i]ncident report . . . . The [s]upervisor’s
[i]ncident [r]eport, . . . shall be forwarded to the Internal Affairs
Division.

The transcript further shows that Townsend was terminated for violating the

personal conduct and behavior policy which provides that “[e]very member of the

Leesville Police Department, . . . will behave in a manner as not to bring discredit

to themselves or the Leesville Police Department.”

In its written ruling dated November 15, 2013, the trial court held that

Townsend mistakenly went to the wrong house and “further compounded the

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mistake when she opened the door to the Belsha’s [sic] house and shined her

flashlight in the bathroom.” It noted that Townsend unsuccessfully attempted to

excuse her conduct by relying on Judge Ford’s instructions to enter his house. The

trial court found that witnesses testified that she was unprofessional such that the

police department was discredited in the eyes of the citizens involved. The

foregoing, according to the trial court, constituted good faith and legal cause for

the Board’s termination.

We, therefore, review the evidence and testimony contained in the transcript

of the Board hearing to determine whether it supports the trial court’s finding that

the Board acted in good faith and had legal cause to terminate Townsend. In that

regard, Townsend testified that, on the morning in question, she called Judge Ford

three times. Their first conversation, according to Townsend, took place when she

initially called him and he advised that he would sign the warrant. She testified

that he gave her basic directions to his house, indicating that it was located off

Ford’s Dairy Road in a hayfield. When Townsend arrived at the Belshas’ house,

which she believed was Judge Ford’s residence, she testified that she knocked on

the carport door which was located next to a parked car. After no one answered,

she testified that she called Judge Ford for a second time and advised him that she

was standing outside by his door. Townsend testified that Judge Ford indicated to

her that his back light was on and that she should enter his back door. As there

was no light on by the carport door, Townsend testified that she proceeded to the

back of the Belshas’ house where she “saw a light on in a window and a door next

to it.” She testified that she opened that door and pointed her flashlight, which was

on, into the house. After catching a glimpse of the counter, she testified that she

closed the door. Townsend testified that she subsequently heard noise coming

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from inside which prompted her to announce her identity. She testified that the

door then opened to a man standing there which turned out to be Mr. Belsha.

Townsend apologized to him and vice versa according to her testimony.

Throughout the Board hearing, she was adamant that she never entered the

Belshas’ residence.

Mrs. Belsha testified that she, her husband, and their children were sleeping

when she was awoken by the sound of their back door opening. Although she

testified that she failed to hear Townsend knock prior to allegedly entering,

Mrs. Belsha testified that she had no independent recollection as to whether

Townsend knocked on their door. Mrs. Belsha testified that from her bed, she

noticed a “light from a flashlight that was coming across the wall from the

bathroom area.” According to Mrs. Belsha’s testimony, when she saw the light,

she assumed an individual would have to be inside based upon the configuration of

their house. Nevertheless, Mrs. Belsha testified that she could not say, beyond a

doubt, that Townsend had actually entered their house. Mrs. Belsha testified that

she never filed a formal complaint with the police department regarding

Townsend’s actions.

Similarly, Mr. Belsha’s testimony corroborates Mrs. Belsha’s testimony.

Specifically, Mr. Belsha testified that he woke up when his wife “kicked me out of

bed.” According to his testimony, he saw the light from a flashlight and began

hollering as he ran towards the light, which was coming in from their back door.

Mr. Belsha testified that since the back door was slightly open, he kicked it shut.

He also testified that, after kicking the door shut, Townsend identified herself, and

he re-opened the door. He indicated that Townsend apologized to him and that she

acted professionally. Mr. Belsha testified that he never observed Townsend inside

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of his residence, and he did not file a formal complaint with the police department

regarding her actions.

Judge Ford testified that he lived in the country in the middle of a big field

which lacked any street lights. His testimony reveals that during a telephone

conversation, he told Townsend that he would leave a light on and that she should

enter his residence. Judge Ford’s testimony shows that he agreed that it was “pitch

black dark” where he resides. As to Townsend’s demeanor on the morning in

question, Judge Ford testified that she was professional and apologetic for

awakening him. On the other hand, he testified that Townsend displayed

unprofessional conduct and failed to follow “proper police procedure” when she

allegedly entered the Belshas’ house without knocking or identifying herself.

Nevertheless, Judge Ford testified that neither he nor his wife filed a complaint

with the police department regarding Townsend’s actions.

Kenneth Pine, an investigator with the police department, testified that he

was assigned to investigate the incident. According to his testimony, Pine

interviewed Townsend, the Belshas, Judge Ford, and other individuals with

knowledge of the incident. Pine testified that Townsend used “[v]ery poor

judgment” on the morning in question. He further testified that, during his twenty-

five years as a police officer, he has also shown up at the wrong residence.

The foregoing shows that it was not rational for the Board to terminate

Townsend especially since none of the individuals involved filed a formal

complaint with the police department. Additionally, the evidence in this case fails

to show how Townsend’s actions impaired the efficiency of the public service or

discredited the police department. Contrarily, the evidence shows that she was

professional when she went to the wrong house and that she made a reasonable

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mistake when she went to the Belshas’ house. The evidence does not show that

Townsend undoubtedly failed to knock, just as it does not show that Townsend

undoubtedly entered the Belshas’ residence. Accordingly, we find that the trial

court was manifestly erroneous in finding that the Board acted in good faith and

had just cause when it terminated Townsend from employment. The trial court’s

judgment is reversed in this regard.

II. Information

The transcript of the Board’s hearing further shows that Townsend was

terminated for violating the police department’s rules regarding the transmission of

information. The investigative report defines information required in the line of

duty as:

No member of the Department may remain silent when information is
required of him or her in the line of duty. He must promptly, fully,
truthfully answer all questions asked of him or her by a superior
Officer, and must immediately report to the proper Officer any
information of which he might have knowledge concerning the
commission of a crime, or misconduct by another member of the
Department.

In its written ruling, the trial court held that Townsend failed to follow the

procedures required to report the incident. It noted that even though Townsend

“made a dispatch radio referral to it and then a verbal referral to it[,] [n]ormal

procedure required more than she exercised.” Once again, we review the evidence

and testimony contained in the transcript of the Board hearing to determine

whether it supports the trial court’s finding that the Board acted in good faith and

had legal cause to terminate Townsend.

Townsend testified that she contacted the dispatcher, Chapman, advising that

she went to the wrong address. Townsend testified that Chapman should have

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logged Townsend’s notice in the dispatch log. Her allegation is supported by

Chapman’s testimony that she remembers Townsend reporting the incident.

The foregoing fails to show that Townsend violated the police department’s

rules regarding the information required in the line of duty. Specifically, she did

not “remain silent” regarding the incidence as she reported it to Chapman.

Chapman corroborated Townsend’s testimony in this regard. Regardless, there is

no evidence showing that Townsend’s actions constituted “a crime, or

misconduct,” warranting her to “immediately report” the incident to the proper

officer. There also lacks evidence showing that her actions required her to take

any further action, in addition to her verbal communication with Chapman,

regarding reporting the incident. Accordingly, the trial court was manifestly

erroneous in finding that the Board acted in good faith and had just cause in

terminating Townsend from employment, and the trial court’s judgment is reversed.

DECREE

The trial court’s judgment is reversed. All costs of this appeal are assessed

against City of Leesville.

REVERSED.

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