Uletom Hewitt v. Lafayette City-Parish Consolidated Government

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 15-835

ULETOM HEWITT

VERSUS

LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20150614
HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Marc T. Amy, Billy Howard Ezell, and David Kent Savoie,
Judges.

AFFIRMED.

C. Theodore Alpaugh, III
Guste, Barnett, Schlesinger, Henderson & Alpaugh, L.L.P.
639 Loyola Avenue, Suite 2500
New Orleans, LA 70113-7103
(504) 529-4141
COUNSEL FOR APPELLANT:
Uletom Hewitt

M. Candice Hattan
110 E. Kaliste Saloom, Ste 101
Lafayette, LA 70508
(337) 234-0431
COUNSEL FOR APPELLEE:
Lafayette Municipal Fire and Police Civil Service Board

Michael P. Corry
Hallie P. Coreil
Briney Foret Corry
P. O. Drawer 51367
Lafayette, LA 70505-1367
(337) 237-4070
COUNSEL FOR APPELLEE:
Lafayette City-Parish Consolidated Government

EZELL, Judge.

Uletom Hewitt appeals the decision of the trial court which upheld the

Lafayette Municipal Fire and Police Civil Service Board‟s decision to affirm his

seven-day suspension from his job as an officer with the Lafayette City Police

Department. After reviewing the facts and applicable law, we affirm the ruling of

the trial court.

FACTS

In September 2010, the Lafayette City Police Department (Department)

installed in-dash camera systems in the police vehicles. Uletom Hewitt, an officer

with the Department since 2006, was initially trained on the operation of the

camera system on September 29, 2010. The officers were given instructions on

how to log onto the computers connected to the camera system and how to upload

videos daily. Devon Guillory, a technical specialist with the Department, trained

Mr. Hewitt. He stated that the hour-and-fifteen-minute training included use of the

software, how to start and stop the camera, how to upload videos, how to classify

the videos to be uploaded, and how to troubleshoot the system. He explained that

there is hands-on training during this time also.

Mr. Guillory had to train Mr. Hewitt once again on November 1, 2010,

because he was not uploading his videos at all. There were about twenty-nine

hours of video that had not been uploaded.

On November 15, 2010, Sergeant Steve Bergeron, the supervisor who

worked directly with the IT personnel, was performing a random check of videos

and noted that Mr. Hewitt‟s videos were not classified. A classification is an

explanation of the event on the video. Mr. Hewitt was also recording off-duty

security like directing traffic, which is unnecessary and wastes space on the camera

storage. Sergeant Bergeron advised Lieutenant Luranie Richard of the issue, so

Lieutenant Richard set up additional training for Mr. Hewitt.

On November 19, 2010, Mr. Hewitt received additional training on using the

camera system from Devon Guillory. At this training session, Mr. Guillory

informed Mr. Hewitt that the software has to be on at all times. Mr. Hewitt

properly classified three or four videos at this training session.

Subsequently, on February 1, 2011, General Order 303.4 was issued and

went into effect, which set forth the procedures officers must follow in using the

in-dash camera systems. The procedures required that the officers must perform a

test recording and classify it to ensure the equipment was functioning properly

before the start of work. Each officer was also required to classify all recorded

events after each event. Also, the officers were directed to upload their video files

daily during their tour of duty. Mr. Hewitt acknowledged receipt of the General

Order by his signature.

On February 25, 2011, Sergeant Bergeron performed another random check

of the videos. He once again noticed that Mr. Hewitt was not classifying his

videos. He also observed that the majority of Mr. Hewitt‟s videos were less than

one minute. Sergeant Bergeron explained that, once the lights on the vehicle are

turned on, the camera begins recording, with the recording actually starting thirty

seconds before the lights are turned on. The fact that Mr. Hewitt‟s videos were

less than one minute was an indication that he was circumventing the system. It

was also noted that while he was uploading some of the videos, it was not on a

daily basis because there were a lot of videos still stored on the in-dash camera

system itself. After looking into the issue, it was determined that Mr. Hewitt was

turning on the software when he logged onto his unit. When he would engage his

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lights, he would manually turn off the software by holding the record button down,

which shuts the camera off. The database information on Mr. Hewitt‟s camera

indicated that he turned off the system about eighty-six times.

Mr. Hewitt claimed that his equipment was malfunctioning. The IT staff

determined that his equipment was functioning properly, so they had it checked out

by the outside company who did the wiring of the camera systems. That company

also determined that the equipment was functioning properly. Mr. Guillory again

trained Mr. Hewitt on the camera system. Mr. Hewitt was able to properly classify

and upload the videos, indicating nothing wrong with Mr. Hewitt‟s camera system.

On February 25, 2011, Lieutenant Richard filled out an “INVESTIGATION

OF POSSIBLE MISCONDUCT BY EMPLOYEE” form on Mr. Hewitt. She

listed three allegations of misconduct:

1. Mr. Uletom Hewitt has failed to properly utilized [sic] his in-dash
camera system in approximately 86 incidents. He has had remedial
training on three separate occasions and after each one, Mr. Hewitt
demonstrates that he can operate the equipment properly. Shortly
after the training, Mr. Hewitt reverts back failing to turning [sic] on
the equipment.

2. There has also been evidence that Mr. Hewitt even turns the
camera system off after it has been automatically activated.

3. The equipment was checked by IT and it was determined that the
camera system is working properly. Also, Mr. Hewitt has failed to
upload the video files daily as mentioned in G.O. 303.4.

A “Complaint Review Form” was then submitted to Chief of Police Jim Craft who

ordered an administrative shift-level investigation on March 2, 2011. Mr. Hewitt

was informed by letter on March 2, 2011, of the investigation. A predetermination

hearing was held on June 28, 2011. It was determined that Mr. Hewitt‟s actions

constituted violations of General Order 303.4, and he was suspended for seven

days without pay effective August 8, 2011.

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Mr. Hewitt appealed his suspensions to the Lafayette Municipal Fire and

Police Civil Service Board (Board).1 Initially, the Board refused to hear the appeal

while a federal lawsuit involving Mr. Hewitt was pending. In Hewitt v. Lafayette

Mun. Fire & Police Civ. Serv. Bd, 13-1429 (La.App. 3 Cir. 6/4/14), 139 So.3d

1213, this court held that the Board‟s act of denying Mr. Hewitt a hearing on his

appeals was an arbitrary and capricious abuse of discretion, and the trial court

manifestly erred in upholding the Board‟s decision. We remanded the matter to

the trial court directing it to issue a writ of mandamus ordering the Board to set his

appeals for hearing as prayed for by Mr. Hewitt.

The hearings on Mr. Hewitt‟s suspensions were eventually set for December

10, 2014. On December 5, 2014, Mr. Hewitt filed a petition for a temporary

restraining order (TRO), which was issued that same day. A hearing was set for

December 15, 2014, on whether a preliminary injunction should be issued. The

Board filed an exception based on improper service and citation because it was not

notified of the TRO until December 8. The Board also filed a reconventional

demand seeking costs and attorney fees pursuant to La.Code Civ.P. art. 3608.

The Board heard Mr. Hewitt‟s appeal of his seven-day suspension on

January 14, 2015. Prior to the hearing, the Board denied a motion to recuse itself

from hearing the action based on its reconventional demand. After the hearing, the

Board upheld Mr. Hewitt‟s suspension. He then sought review of the Board‟s

decision in the district court.

In his appeal to the district court, Mr. Hewitt complained about the same

issues of which he complains in his appeal to this court. He first asserted that the

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Mr. Hewitt faced three disciplinary actions in 2011. He was first suspended on March
25, 2011, for five days. The present case involves his second suspension on August 4, 2011, for
seven days. Mr. Hewitt‟s third disciplinary action resulted in his termination on August 30, 2011.

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investigation was not completed within the time limit contemplated by La.R.S.

40:2531(B)(7), rendering the decision an absolute nullity. He also argued that the

Board should have recused itself because it was biased since it sought costs and

attorney fees from him. Finally, Mr. Hewitt argued that his actions did not deserve

discipline.

The trial court upheld the Board‟s decision on all issues. Mr. Hewitt then

filed the present appeal to this court.

ABSOLUTE NULLITY

Mr. Hewitt first claims that the decision of the Board must be reversed

because the investigation of him was not completed within the time mandated by

La.R.S. 40:2531(B)(7). Louisiana Revised Statutes 40:2531(B)(7) provides for

the time to complete an investigation as follows:

When a formal, written complaint is made against any police
employee or law enforcement officer, the superintendent of state
police or the chief of police or his authorized representative shall
initiate an investigation within fourteen days of the date the complaint
is made. Except as otherwise provided in this Paragraph, each
investigation of a police employee or law enforcement officer which
is conducted under the provisions of this Chapter shall be completed
within sixty days. However, in each municipality which is subject to a
Municipal Fire and Police Civil Service law, the municipal police
department may petition the Municipal Fire and Police Civil Service
Board for an extension of the time within which to complete the
investigation. The board shall set the matter for hearing and shall
provide notice of the hearing to the police employee or law
enforcement officer who is under investigation. The police employee
or law enforcement officer who is under investigation shall have the
right to attend the hearing and to present evidence and arguments
against the extension. If the board finds that the municipal police
department has shown good cause for the granting of an extension of
time within which to complete the investigation, the board shall grant
an extension of up to sixty days. Nothing contained in this Paragraph
shall be construed to prohibit the police employee or law enforcement
officer under investigation and the appointing authority from entering
into a written agreement extending the investigation for up to an
additional sixty days. The investigation shall be considered complete
upon notice to the police employee or law enforcement officer under

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investigation of a pre-disciplinary hearing or a determination of an
unfounded or unsustained complaint. Nothing in this Paragraph shall
limit any investigation of alleged criminal activity.

Mr. Hewitt argues that the investigation should have been completed within 120

days when it actually was not completed until 122 days after it was started. A

sixty-day extension had been granted to complete the investigation, thereby giving

the Department 120 days total to complete the investigation.

Louisiana Revised Statutes 40:2531(C) provides that no action is to be taken

against a police officer unless the investigation is conducted in accordance with the

minimum standards set forth in La.R.S. 40:2531 and failure to comply with those

minimum standards renders the action an absolute nullity.

Reviewing the evidence in the record, the form entitled “INVESTIGATION

OF POSSIBLE MISCONDUCT BY EMPLOYEE” was filed on February 25, 2011.

Mr. Hewitt argues that the filing of this form was the start of the investigation. Mr.

Hewitt claims that the form in this case is similar to the “DI-1” form that the New

Orleans Police Department uses to initiate an investigation.

DI forms appear to be documents that the NOPD uses internally
relating to discipline and to commemorate and/or inform a police
officer of allegations relating to misbehavior or alleged inappropriate
acts or actions. See Jones v. Department of Police, 11–0571, p. 1
(La.App. 4 Cir. 8/24/11), 72 So.3d 467, 469 n. 1, citing Williams v.
Dept. of Police, 08–0465, p. 4 (La.App. 4 Cir. 10/22/08), 996 So.2d
1142, 1144. A DI–2 form is “used to give an officer an informal
disciplinary warning advising an officer that the officer is in violation
of department regulations.” Id. A DI–1 form, which was issued to Mr.
Young, is “used to initiate a formal disciplinary investigation”. Id.

Young v. Dep’t of Police, 13-1596, p. 2 (La.App. 4 Cir. 6/25/14), 152 So.3d 193,

194, fn. 2, writ denied, 15-201 (La. 4/17/15), 168 So.3d 400.

First, there is no example of the DI-1 form in any of the cases. Secondly, we

find that the form used in the present case is actually the formal, written complaint

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contemplated by La.R.S. 40:2531(B)(7). Lieutenant Richard filled out this form

which listed the witnesses and details of the allegations against Mr. Hewitt on

February 25, 2011, which is the same date that Sergeant Bergeron performed the

random check of the videos in finding that Mr. Hewitt was not complying with

General Order 303.4. She also filled out an additional form requesting video from

Mr. Hewitt‟s in-dash camera on that same date. No complaint had been issued

prior to this date.

On March 2, 2011, Sergeant Keith Gremillion, with the internal affairs

division, submitted a “Complaint Review Form” to Chief of Police Jim Craft.

Chief Craft checked the box next to “Administrative Shift-Level Investigation” as

the directive he chose to pursue. On that same day, written notice of the

investigation was prepared and sent to Mr. Hewitt.

On March 3, 2011, Sergeant Gremillion sent notice and instructions to Major

Jackie Alford that “Chief of Police James Craft has ordered a shift-level

administrative investigation relevant to a complaint filed by Lt. Luraine Richard.”

He also informed Major Alford that the investigation must be completed within

sixty days and that “[t]he starting date for this investigation is 3/2/2011.” This is

the same date that Chief Craft ordered the investigation.

Louisiana Revised Statutes 40:2531(B)(7) provides that a formal and written

complaint must be made against a police officer before an investigation is initiated.

This is the form Lieutenant Richard first completed. Then, only the superintendent

of the state police or the chief of police or his authorized representative can initiate

the actual investigation within fourteen days of the complaint. This is the form

signed by Chief Craft March 2, 2011. We find that this is the date on which the

investigation was initiated. The record indicates that Lieutenant Kim Gates

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conducted the actual investigation. On June 27, 2011, notice was given to Mr.

Hewitt that a predetermination hearing was scheduled for June 28, 2011, marking

the end of the investigation. Therefore, the investigation was completed in 119

days, within the 120-day time period that the investigation had to be completed.

The trial court was correct in determining that the investigation was completed

timely.

RECUSAL OF THE BOARD

Mr. Hewitt contends that the Board erred in refusing to recuse itself from

hearing all appeals he filed. Mr. Hewitt claims that the Board‟s response to the

TRO in filing a reconventional demand for costs and attorney fees established that

the Board was biased and/or prejudiced against him and his counsel.

Pursuant to La.R.S. 33:2501(E)(3), a court cannot overturn a decision of the

Board which was made in good faith for cause. Moore v. Ware, 01-3341 (La.

2/25/03), 839 So.2d 940. “Good faith does not occur if the appointing authority

acted arbitrarily or capriciously, or as the result of prejudice or political

expediency.” Id. at 945. “Arbitrary or capricious means the lack of a rational

basis for the action taken.” Id. at 946.

In Sampite v. Natchitoches Fire and Police Civ. Serv. Bd., 426 So.2d 729

(La.App. 3 Cir. 1983), the district court found that a civil service board member

should have been recused, and, therefore, the action of the board was null and void

because a quorum was not present. Based on La.R.S 33:2501, this court held that a

district court‟s authority to review a civil service board‟s refusal to recuse a

member is limited to the statutory standard of whether the decision was made in

good faith for cause. We found nothing in the record to support that the board

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member would have been prejudiced in his findings and reversed the decision of

the district court which found that the board member should have been recused.

We agree with the Board that Mr. Hewitt sued it and forced it to defend

itself when he asked for the TRO. The fact of such a defense does not make it

biased against Mr. Hewitt.

Furthermore, we find no evidence to suggest bias or prejudice at the hearing

on the motion to recuse on January 14, 2015. The Board members agreed that they

were not seeking money personally from Mr. Hewitt, so there was no personal bias

toward Mr. Hewitt. We find no evidence in the record that the Board was

prejudiced, consequently the trial court was correct in finding that the decision of

the Board in denying the recusal request was made in good faith for cause.

DECISION OF THE BOARD

Mr. Hewitt also argues that the evidence was insufficient to warrant

discipline. He contends that he should not be disciplined for issues with a new in-

dash camera system and new procedures and that he was following orders when he

shut off his camera system. He also contends that he had equipment problems with

his camera system.

“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, [938,] 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 [v. City of St. Martinville],
321 So.2d [532,] at 535 [(La.App. 3 Cir. 1975)].

Townsend v. City of Leesville, 14-923, p. 2 (La.App. 3 Cir. 2/4/15), 158 So.3d 263,

266, writ denied, 15-703 (La. 6/1/15), 171 So.3d 263.

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Regarding the appointing authority‟s burden of proof and review of the

Board‟s determination, this court further stated:

“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 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.

Id. at 267 (alterations in original).

At the hearing before the Board, the Board heard testimony from Lieutenant

Kim Gates, who conducted the investigation, that there were eighty-six instances in

which Mr. Hewitt failed to properly utilize the camera which included failing to

check his camera at the start of work daily to ensure it was functioning properly,

failing to classify the videos, and failing to upload the videos daily. The Board

also heard extensive testimony on the fact that Mr. Hewitt was turning his camera

off after it automatically started recording when the blue lights on his car were

turned on.

Mr. Hewitt did testify that he could not leave his car idling while he

uploaded the videos because had been told it would waste gas. He explained that

this caused the camera system to overheat, and it would shut off, requiring him to

start the uploading process all over again. However, Mr. Guillory explained to the

Board that he retrained Mr. Hewitt on three additional occasions after the initial

training and experienced no problems with the equipment. Mr. Hewitt was able to

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successfully complete all required actions. Furthermore, Mr. Guillory checked out

the equipment and found no problems and could not recreate the issues complained

of by Mr. Hewitt. The unit was even sent back to the business that installed the

camera system, and it found no problems either.

Sergeant Bergeron testified that other officers had problems with the system

but not to the level that Mr. Hewitt experienced. Soon after each training session,

Mr. Hewitt would continue not following protocol. Chief Craft testified that the

number of occurrences were too many and no problems had been found with Mr.

Hewitt‟s equipment. As Chief Craft explained in his letter to Officer Hewitt with

the results of the investigation, Mr. Hewitt‟s failure to comply with the

Department‟s general orders placed the Department in a “very precarious

situation.” Chief Craft further explained:

In the event [there is] a citizen involved in a call which you worked,
there may not be video evidence to support your actions as a law
enforcement officer. In addition, you have placed yourself in
jeopardy in the event a citizen files a complaint of unprofessional
conduct or excessive force against you wherein there may not be
video evidence to support your actions or disprove the complaint.

Based on the evidence, we find no error in the Board‟s decision to uphold

Mr. Hewitt‟s seven-day suspension. Even after several efforts of retraining, Mr.

Hewitt would not properly follow the protocol pertaining to his in-dash camera

system, which is not only for his protection but the protection of the citizens. The

Board did not act arbitrarily or capriciously, or as the result of prejudice.

CONCLUSION

For the foregoing reasons, we find that the investigation of Mr. Hewitt was

conducted in a timely manner by the Lafayette City Police Department. We also

find the Lafayette Municipal Fire and Police Civil Service Board acted in good

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faith and with statutory cause in failing to recuse itself in this matter and in finding

that there was sufficient evidence to suspend Mr. Hewitt for seven days. All costs

of this appeal are assessed to Uletom Hewitt.

AFFIRMED.

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