Nolvey Stelly v. City of Lafayette

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-262

NOLVEY STELLY

VERSUS

CITY OF LAFAYETTE, ET AL.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2015-4786
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

**********

PHYLLIS M. KEATY
JUDGE

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Court composed of John D. Saunders, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.

AFFIRMED.

C. Theodore Alpaugh, III
Guste, Barnett, Schlesinger, Henderson
& Alpaugh, L.L.P.
639 Loyola Avenue, Suite 2500
New Orleans, Louisiana 70113-7103
(504) 529-4141
Counsel for Plaintiff/Appellant:
Nolvey Stelly

Michael P. Corry, Sr.
J. Daniel Siefker, Jr.
Hallie P. Coreil
Briney Foret Corry
Post Office Drawer 51367
Lafayette, Louisiana 70505-1367
(337) 237-4070
Counsel for Defendant/Appellee:
Lafayette City-Parish Consolidated Government
Lafayette Police Department

M. Candice Hattan
Attorney at Law
Post Office Box 91850
Lafayette, Louisiana 70509
(337) 234-0431
Counsel for Defendant/Appellee:
Lafayette Municipal Fire & Police Civil Service Board

KEATY, Judge.

Nolvey Stelly appeals the trial court’s judgment upholding the Lafayette

Municipal Fire and Police Civil Service Board’s (Board) decision affirming the

termination of his employment with the Lafayette Police Department (LPD). For

the following reasons, we affirm the trial court’s judgment.

FACTS & PROCEDURAL HISTORY

Stelly, who was employed as a police officer, was terminated by the LPD, a

division of the Lafayette City-Parish Consolidated Government (LCG), on

December 27, 2013, for violations of company policy. Prior to his termination,

three internal affairs investigations were conducted. The first investigation,

AD2013-011, occurred after Stelly failed to follow a directive from then-Chief of

Police, James Craft. Stelly v. Lafayette City-Parish Consol. Gov’t, 16-328 (La.App.

3 Cir. 10/12/16), 203 So.3d 531. After the investigation concluded, Stelly was

suspended for fifteen days in November 2013. Id. Stelly appealed the suspension

to the Board, who affirmed the suspension following a hearing in September 2015.

Id. Stelly appealed the Board’s decision to the trial court, which upheld the

suspension. This court upheld the suspension on October 12, 2016, following an

appeal of the trial court’s judgment. Id. The facts of investigation AD2013-011

are not at issue in this appeal.

Prior to Stelly’s fifteen-day suspension, a pre-determination hearing in

AD2013-011 occurred on October 14, 2013. It was alleged that Stelly secretly

recorded the hearing, in violation of LPD General Order (G.O.) 201.2, governing

professionalism. It was further alleged that Stelly invited news media to cover the

hearing, in violation of LPD G.O. 305.1 and LCG Policies and Procedures Manual

(PPM) 1200-2. Stelly’s purported violations resulted in the commencement of a

second investigation, AD2013-014.

Pending the investigation of AD2013-014, Stelly was placed on paid

administrative leave, instructed to remain available during regular working hours,

and prohibited from working off-duty employment. During this time, LPD

discovered Stelly was working at Rick’s Towing as a dispatcher. As a result, a

third investigation, AD2013-016, commenced and revealed Stelly violated G.O.

201.2, regarding professional conduct; G.O. 204.5, regarding departmental

discipline; and G.O. 203.3, regarding non-police related off-duty employment.

At the conclusion of investigations AD2013-014 and AD2013-016, Stelly

was terminated on December 27, 2013, with written notice provided on December

30, 2013. Stelly appealed his termination to the Board, which heard the matter on

September 9, 2015. Following the hearing, the Board unanimously voted to

uphold Stelly’s termination. On October 12, 2015, the Board issued a Written

Finding of Fact and found the alleged violations occurred. Stelly appealed the

Board’s decision to the trial court. Following a hearing on October 31, 2016, the

trial court affirmed the Board’s decision. A written judgment was signed by the

trial court on November 14, 2016, and Stelly now appeals to this court.

On appeal, Stelly alleges the following five assignments of error:

1. The ruling of District Court upholding the ruling of the Board
was not made in good faith and for just cause as the appointing
authority failed to comply with La.R.S. 40:2531(B)(4).

2. The ruling of District Court upholding the ruling of the Board
was not made in good faith and for just cause as the conclusions
reached and the penalties imposed by the Board were arbitrary,
unreasonable[,] and without any basis in fact or law.

3. The ruling of District Court upholding the ruling of the Board
was not made in good faith and for just cause as the City of
Lafayette and the Lafayette Police Department erroneously
found that the alleged actions of [Lieutenant] Stelly violated the
provisions of the Lafayette Police Department Standard
Operating Procedures.

2

4. The ruling of District Court upholding the ruling of the Board
was not made in good faith and for just cause as as [sic] the
City of Lafayette and the Lafayette Police Department
erroneously found that the alleged actions of [Lieutenant] Stelly
impaired the efficient operation of the public service.

5. The ruling of District Court upholding the ruling of the Board
was not made in good faith and for just cause as the City of
Lafayette and the Lafayette Police Department erroneously
imposed discipline that was not commensurate with the alleged
infractions.

LAW & STANDARD OF REVIEW

A civil service employee “may appeal from any decision of the board, or

from any action taken by the board . . . that is prejudicial to the employee or

appointing authority.” La.R.S. 33:2501(E)(1). Such an appeal lies in the trial

court wherein the Board is domiciled. Id. “This hearing shall be confined to the

determination of whether the decision made by the board was made in good faith

for cause” and “[n]o appeal to the court shall be taken except upon these grounds.”

La.R.S. 33:2501(E)(3).

In Moore v. Ware, 01-3341, pp. 7-8 (La. 2/25/03), 839 So.2d 940, 945-46

(citations omitted), the supreme court explained the standard of review required for

an intermediate appellate court, such as this court, as follows:

If made in good faith and statutory cause, a decision of the civil
service board cannot be disturbed on judicial review. Good faith does
not occur if the appointing authority acted arbitrarily or capriciously,
or as the result of prejudice or political expediency. Arbitrary or
capricious means the lack of a rational basis for the action taken. The
district court should accord deference to a civil service board’s factual
conclusions and must not overturn them unless they are manifestly
erroneous. Likewise, the intermediate appellate court and our review
of a civil service board’s findings of fact are limited. Those findings
are entitled to the same weight as findings of fact made by a trial court
and are not to be overturned in the absence of manifest error.

The supreme court in Shields v. City of Shreveport, 579 So.2d 961, 964

(La.1991) (citations omitted), elaborated on what constitutes good faith as follows:

“The dismissal of a police officer does not occur ‘in good faith’ if the appointing
3

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

expediency. ‘Arbitrary or capricious’ means the lack of a rational basis for the

action taken.”

This court, in Hewitt v. Lafayette Municipal Fire & Police Civil Service

Board, 13-1429, pp. 4-5 (La.App. 3 Cir. 6/4/14), 139 So.3d 1213, 1217, further

explained:

Legal cause is also required for disciplinary action against a
civil service employee. Martin v. City of St. Martinville, 321 So.2d
532 (La.App. 3 Cir.1975), writ denied, 325 So.2d 273 (La.1976);
Leggett v. Nw. State Coll., 242 La. 927, 140 So.2d 5 (1962). “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, 140 So.2d at 9. 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 9-10. 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, 839 So.2d
940.

DISCUSSION

I. Good Faith & Cause

In his assignments of error, Stelly contends the trial court’s upholding of the

Board’s ruling was not made in good faith and for just cause. He alleges the

Board’s conclusions were arbitrary, unreasonable, and without any factual or legal

basis. Stelly argues the LPD and the Board erroneously found his alleged actions

violated the LPD’s operating procedures and impaired the operation of the public

4

service. He contends the LPD and the Board erroneously imposed discipline that

was not commensurate with the alleged infractions.

As a civil service employee, Stelly is subject to La.R.S. 33:2500, which

provides, in pertinent part:

A. . . . [T]he appointing authority may remove any employee
from the service, or take such disciplinary action as the circumstances
warrant in the manner provided below for any one of the following
reasons:

(1) Unwillingness or failure to perform the duties of his
position in a satisfactory manner.

(2) The deliberate omission of any act that it was his duty to
perform.

(3) The commission or omission of any act to the prejudice of
the departmental service or contrary to the public interest or policy.

(4) Insubordination.

(5) Conduct of a discourteous or wantonly offensive nature
toward the public, any municipal officer or employee; and, any
dishonest, disgraceful, or immoral conduct.

In a unanimous decision, the Board upheld the LPD’s termination. In the

Board’s Written Finding of Fact, it noted the following:

1. [Lieutenant] Stelly contacted the media regarding his pre-
disciplinary hearing although he was not authorized to do so.
This is considered a violation of G.O. 305.1 and PPM 1200-2.

2. [Lieutenant] Stelly did not complete off-duty employment
request forms for Rick’s Towing, which is in opposition to G.O.
203.3.

3. [Lieutenant] Stelly engaged in off-duty employment at Rick’s
Towing while on administrative leave. This action is
considered to be in violation of G.O. 201.2, G.O. 203.3, G.O.
204.5, and PPM 2161-2.

The LPD General Orders provide in pertinent part:

5

G.O. 305.1: PUBLIC INFORMATION AND MEDIA RELATIONS

....

PUBLIC INFORMATION OFFICE

A. All requests for information from the news media, as well as
from the public, shall be channeled through the Public
Information Office. This office will be responsible for the daily
dissemination of information to the news media. (CALEA-
54.1.1b)

B. Except as specified in this Order, no one shall be authorized to
release information to the news media.

GUIDELINES FOR THE RELEASE OF INFORMATION
(CALEA - 54.l.ld)

....

B. The following information shall not be released to the media:

1. Any personal opinion, unsubstantiated fact or rumor
concerning any evidence, suspect, crime, event or
situation.

CONFIDENTIAL INVESTIGATIONS (CALEA-54.1.1e)

A. Media requests for information pertaining to Internal Affairs
Investigation shall be directed to the Chief of Police.

The LCG PPM 1200-2, entitled “PUBLIC STATEMENTS/NEWS

RELEASES,” provides in pertinent part:

Policy

In order to represent the best interest of Lafayette Consolidated
Government (LCG), employees shall adhere to the following
guidelines in disseminating information about LCG operations.

Procedure

1. Any employee who is requested or required to make a public
presentation about a matter pertaining to LCG business shall
first discuss the content and form of the presentation with the
Department Director.

....

6

8. Employees shall direct all media requests for comment or
information about matters pertaining to LCG to the Department
Director, CAO, or City-Parish President.

Lafayette Police Department G.O. 203.3, entitled “OFF-DUTY POLICE

RELATED & NON-POLICE RELATED EMPLOYMENT,” provides in

pertinent part:

NON-POLICE RELATED OFF-DUTY EMPLOYMENT
(CALEA-22.3.4)

A. Non-police related off-duty employment is defined as limited
employment, which is not law enforcement related and is
beyond the scope of employment of the Lafayette Police
Department. Examples of non-law enforcement related
employment include, but are not limited to, ownership of non-
law enforcement related business and salesclerk in a retail store.
Non-police related off-duty employment is not an off-duty
detail. All requests pertaining to this form of employment must
be submitted via the authorized “Request for Off-Duty
Employment” form.

Lafayette Police Department G.O. 201.2, entitled “PROFESSIONAL

CONDUCT AND RESPONSIBLITIES,” provides in pertinent part:

PURPOSE

This Order establishes standards regarding professional conduct and
general responsibilities required of each employee.

....

PROFESSIONAL CONDUCT (GALEA-26.1.1)

....

I. Employees shall not criticize or ridicule the Department or its
policies, LCG officials, or other employees by speech, writing,
email, MDT transmission, police radio, or other expression.
This includes, but is not limited to, expressions which are
defamatory, obscene, unlawful, undermines the effectiveness of
the Department, interferes with the maintenance of discipline,
or is made with reckless disregard for the truth and/or malice.

....

7

CLANDESTINE RECORDINGS

A. It shall be the policy of the Lafayette Police Department to
prohibit clandestine recordings of members of the Department
unless such activities are authorized by the Chief of Police.

....

B. In an effort to prevent unauthorized conduct and to ensure the
integrity of the Lafayette Police Department, clandestine
recordings of members of the Department by another member is
strictly prohibited unless specifically authorized by the Chief of
Police and in accordance with applicable Federal and State law.

....

G. Violations:

1. Violations of this Written Directive shall be classified as
a Category 3 Administrative Offense which is subject
to disciplinary action, leading up to, and inclusive of
termination.

....

RESPONSIBILITIES

....

C. Employees shall abide by all Federal, State, and Local
Ordinances, as well as, LCG PPM’s, Department Written
Directives, General Orders, Standard Operating Procedures, and
rules of the Civil Service Board.

D. Employees shall promptly obey all lawful orders issued by
supervisors, in addition to promptly follow the directions of
radio dispatchers.

1. The failure or deliberate refusal of employees to obey
such orders shall be deemed as insubordination and is
prohibited.

2. Flaunting with the authority of a supervisor by displaying
obvious disrespect or by disputing his/her orders shall
likewise be deemed as insubordination and subject to
progressive disciplinary action.

ATTENTION TO DUTY

....

8

B. All employees, within the scope of their responsibilities, shall
abide by LCG Policies and Procedures, in addition to all
Lafayette Police Department Written Directives. Employees
shall report any violation to their immediate supervisors
without delay. When possible, they will actively prevent such
violation or interrupt/intervene as necessary to ensure
professional and proficient operation.

C. Employees, whether on or off duty, shall follow the ordinary
and reasonable rules of good conduct and behavior. They shall
not commit any act in an official or private capacity that would
bring reproach, discredit, or embarrassment to their profession,
the Department, or which could constitute conduct unbecoming
by an employee. Employees shall follow established
procedures in carrying out their duties, and shall at all times use
sound judgement.

Lafayette Police Department G.O. 204.5, entitled “DEPARTMENTAL

DISCIPLINE,” provides in pertinent part:

3:0 CATEGORY 3 OFFENSES

....

3.17 Carrying Out Orders

Employees of the Department are required to obey any
Standing Order or General Order, abide by all policies and
procedures and promptly carry out any order relayed from a
supervisor by an employee of the same or lesser rank, whether
issued verbally, in writing, or by telecommunications (2-way
radio, phone, fax, digital communications). Employees shall
obey lawful order(s) of a superior. Upon receipt of a
conflicting order, the employee receiving the order shall tell the
supervisor issuing the second order of this fact. If then directed,
the employee shall obey the second order. Upon receipt of a
perceived unjust or improper order, the receiving employee
shall obey the order to the best of his ability within the limits of
law, and then report the order through proper chain of
command. No employee shall obey an order that is contrary to
Federal, State, or City Law.

3:18 Insubordination

Employees shall promptly obey all lawful orders and directions
given by supervisors. The failure or deliberate refusal of
employees to obey such orders shall be deemed insubordination
and is prohibited. Flaunting with authority of a superior officer
by displaying obvious disrespect or by disputing his orders shall
likewise be deemed insubordination.
9

Lafayette Consolidated Government PPM 2161-2, entitled “CONDITIONS

OF EMPLOYMENT,” provides in pertinent part:

1. Requirements

....

1.6 To be at your assigned work place and ready for work at the
designated starting time.

....

1.18 To follow instructions of your supervisor and perform tasks as
directed. If you consider an order improper or unjust, perform
the task and request permission to bring the matter to your
supervisor’s superior, unless the task would clearly jeopardize
your health and safety, or violate policy. In such case, talk it
over with your supervisor immediately. If the task is clearly
unsafe or overly dangerous, you have the right to demand that
your supervisor contact the Safety Officer for an onsite
consultation. Failure to obey instructions is a serious offense;
therefore, you may be asked to state your reasons in writing.

....

2. Prohibitions

....

2.9 Insubordination resulting from refusing or failing to comply
with a lawful directive given by a supervisor or superior.
Depending upon the facts and circumstances of the
insubordination, the actions of the employee may be deemed to
be so extreme, outrageous, and unacceptable so as to constitute
“gross insubordination” and a major offense as defined under
Section 3.2 of this PPM.

....

3. Classification of Offenses

....

3.2 Major Offenses are those willful or deliberate violations that
exceed those considered correctable by progressive, corrective
disciplinary action and which may result in immediate
discharge without consideration of employment history or past
performance. Major offenses include the following:

10

....

d. Gross insubordination, consisting of a repeated refusal or
failure to comply with a lawful directive given by a
supervisor or superior after having been warned of the
potential consequences of such actions (Section 1.18, 2.4
and 2.9 of this PPM).

The Board further concluded the following:

The evidence and testimony presented to the Lafayette Municipal Fire
and Police Civil Service Board established that the alleged violations
did occur. The Board determined that the Appointing Authority acted
in good faith for cause in the disciplinary action taken against
[Lieutenant] Nolvey Stelly and thereby upholds the action of the
Appointing Authority.

The Board’s termination was upheld by the trial court, who stated the

following at the conclusion of oral argument: “I found no factual basis for . . .

overturning the firing.” In its subsequent written judgment, the trial court found

the “Board acted in good faith and for cause in upholding the termination.”

A. Media

The Board’s decision was based upon the evidence submitted at the hearing,

including e-mail correspondence received by Officer Paul Mouton from Linda

Meaux of the Acadiana Gazette, a local newspaper. In the October 15, 2013 e-mail,

Meaux stated the following:

Ireceived [sic] a request by [Lieutenant] Nolvey Stelly that we
publish information regarding his October 21, 2013 disciplinary
hearing with Chief Craft.

Please send me a press release, Freedom of Information, is [sic]
whatever action taken on case, related to his being medically released
as fit for duty, or does it stem from alleged civil rights, Kane
Marceaux suit.

The investigative report in the record reveals that Detectives Shawn Terro

and Patrick Pattum obtained Detective Ron Clark’s recorded statement on

October 24, 2013. Detective Clark revealed in that statement that he was present at

Stelly’s pre-disciplinary hearing for the purpose of recording it. Detective Clark
11

explained that prior to activating his recorder, he placed it on the table and asked if

the others were ready for him to start recording. Detective Clark advised that

Chief Craft told him to wait while he asked everyone in the room if anyone was

recording. According to Detective Clark, at that point, Stelly revealed he was

recording. Chief Craft subsequently told Stelly to put his recording device on the

table, at which point Stelly retrieved his cellular phone and placed it on the table.

Detective Clark explained that, prior to Chief Craft’s question, Stelly failed to

notify anyone in the room that he was recording. When Stelly placed his cell

phone on the table, Detective Clark did not witness Stelly press any buttons which

would stop or start his phone recording.

Meaux also provided a recorded statement to Detective Terro. Therein,

Meaux revealed that she is an artist and a reporter for a local newspaper. Meaux

further indicated that Stelly went to her home to retrieve a picture she had painted

of his son whereupon he asked whether she was still a reporter. When Meaux

indicated that she was, Stelly revealed that he had an upcoming hearing in front of

Chief Craft. According to Meaux’s statement, Stelly explained he may be

terminated and asked Meaux to go to the police station during his hearing.

Stelly provided a taped statement to Detective Terro and Sergeant Chastity

Arwood on December 2, 2013. That statement revealed that Stelly agreed he

contacted Meaux regarding his son’s portrait, which was a non-police-related

matter. When asked whether he gave her any information regarding the pre-

disciplinary hearing, he responded: “Uh no she . . . notice[d] that I worked at the

police department. . . . [W]e had a conversation. I told her . . . I was one of the

officers in the federal law suit, but that I couldn’t talk about it.” Stelly further

explained: “[S]he asked if . . . there was any retaliation for the lawsuit[,] and I told

her that I was receiving discipline . . . and that I had a hearing coming up and . . . if
12

she needed to know anything more than that she needed to contact the police

department.” Stelly explained he was unaware that he and Meaux would have the

foregoing conversation because he went there to retrieve a portrait. Stelly revealed

he did not seek prior approval from Officer Mouton or Chief Craft to discuss

police-related matters. Stelly opined he did not need prior approval to discuss his

job status. Stelly revealed he never asked Meaux to publish any information

regarding his pre-disciplinary hearing.

Stelly agreed he “made contact with” one media source regarding his pre-

disciplinary hearing. This occurred, according to Stelly, at City Hall prior to his

hearing when he saw a cameraman with a local television news station. Stelly

indicated that he asked the cameraman if he was going to cover the hearing.

According to Stelly, the cameraman responded, “No.” Stelly revealed the

foregoing was his only encounter with the media. Stelly agreed that the same local

news station subsequently appeared in the LPD lobby during his pre-disciplinary

hearing.

Stelly acknowledged that he recorded the pre-disciplinary hearing by

retrieving his recording device when Detective Clark began setting up his

equipment. Stelly believed he could record the hearing since Detective Clark was

also recording it. Stelly stated that he did not obtain prior authorization to record

from Chief Craft because of a General Order which granted the right to record

disciplinary hearings. Stelly advised that he did not notify anyone in the room that

he was recording because he did not feel that he had to and he “didn’t start

recording until [Chief Craft] told me to pull it out my pocket.” Stelly indicated

Chief Craft gave him permission to record when Chief Craft asked everyone in the

room if anyone was recording. Stelly responded by stating: “I’m recording, he’s

recording.” Stelly explained: “[Chief Craft] said well let’s put them all on the
13

desk and let’s record and that’s what I did.” Stelly stated he began recording when

he put his phone on the desk.

On December 2, 2013, Detective Terro and Sergeant Arwood obtained a

taped statement from Major Terry Head. In his statement, Major Head advised that

he was at Stelly’s hearing in his capacity as the facilitator. Major Head explained

that, “[a]s Stelly was walking into the Chief’s hallway, I observed him take his cell

phone out of his pocket and press a button on top of it. At that time[,] I turned to

Chief Craft and I told him I think [Stelly] is recording . . . he turned on his cell

phone recorder.” He explained that Stelly walked into the pre-disciplinary hearing

as Major Head began reading the opening statement. It was at that point that Chief

Craft stopped Major Head and asked if anyone was recording. According to Major

Head, Stelly answered, “Yes.” Major Head explained that Chief Craft told Stelly

to remove the recording device from his pocket and “put it on the table so you can

get a good recording. And at that point in time we continued the meeting.” When

asked whether Stelly activated his phone once he put it on the table, Major Head

responded: “Oh no, once [Stelly] took it out of his pocket[,] he just put it on the

table and never touched it until he left.” Major Head also agreed that there were

media sources present on the day of Stelly’s pre-disciplinary hearing.

On December 11, 2013, Detective Terro and Sergeant Arwood obtained a

taped statement from Captain Ron Czajkowski. Captain Czajkowski explained in

his statement that his office is located near Chief Craft’s office. He advised that on

the day of Stelly’s pre-disciplinary hearing, Captain Czajkowski observed Stelly

walking towards Chief Craft’s office “with his cell phone in his right hand[,] and

he was manipulating the phone with one hand.” Detective Czajkowski opined

Stelly “was activating his cell phone to begin an audio recording.” Detective

14

Czajkowski revealed that Stelly “had a history of recording many conversations

that he’s had with me. And it seems to be a common practice of his.”

The Board’s finding is supported by the evidence that Stelly violated LPD

policies and procedures by contacting the media, i.e., Meaux and the local

television news station, as well as by making a clandestine recording of the pre-

disciplinary hearing prior to Chief Craft’s question regarding the recording of the

proceedings. As such, the Board’s decision was made in good faith and for cause.

Accordingly, the trial court did not manifestly err in upholding the Board’s

decision.

B. Rick’s Towing

Stelly was placed on paid administrative leave pending the investigation of

AD2013-14 pursuant to an October 15, 2013 memorandum notice. The notice

provides two conditions Stelly was required to adhere to during the pendency of

the investigation: He was prohibited from performing any off-duty employment,

and he had to remain available during regular working hours. Stelly’s violations of

the two conditions resulted in the commencement of investigation AD2013-016 on

October 29, 2013, according to another memorandum in the record.

The record contains the investigative report in AD2013-016, which reveals

that Detectives Pattum and Clark observed Stelly’s car parked in front of Rick’s

Towing on October 25, 28, 29, 30, and 31, 2013, and on November 1, 2013.

Surveillance photographs confirming the foregoing are attached to the report as

evidence in the record. The report notes that Stelly did not submit a request for

off-duty work, which is in violation of G.O. 203.3, governing off-duty police

related and non-police related employment.

The report references a covert telephone call placed to Stelly on October 28,

2013, while he was at Rick’s towing. The audio recording reveals that Stelly
15

answered the telephone call, identified himself as Stelly with Rick’s Towing, and

provided the caller with towing prices. The report also references a video

recording made of Stelly while he was at Rick’s Towing on November 1, 2013. In

the video, Stelly is sitting at a desk, helping a customer, and providing an estimated

cost of towing a vehicle. The video shows a customer asking Stelly whether

Rick’s Towing sold automobile parts, and his subsequent response wherein he

stated: “No, what we do with old cars, we sell them to ‘Dien’s’ on Johnston

Street.” The video depicts Stelly answering a telephone call by stating, “Good

afternoon, Rick’s towing.” Both the audio compact disc (CD) and digital video

disc (DVD) were made a part of the record.

The report shows that two telephone calls were placed by LPD dispatchers

to Rick’s Towing, requesting a next in-line tow. The CD recording of the two calls

was placed in the record and reveals that they occurred on October 30, 2013 and

November 1, 2013. Stelly answered the calls both times according to the recording.

According to the recording, during the first call, Stelly gathered the towing

information, asked questions of the LPD dispatcher, and was heard repeating the

tow information as though he was dispatching a tow truck. During the second call,

Stelly asked for the location and stated that Rick’s Towing was en route to the

scene. LPD call logs in the record confirm LPD placed two phone calls to Rick’s

on those dates.

According to Stelly’s December 2, 2013 statement, he confirmed that he

spoke to LPD dispatchers once or twice when they called Rick’s Towing and

requested a next in-line tow. The statement indicates Stelly denied that he was

employed by, or received compensation from, Rick’s Towing. Stelly explained

that another person told him that termination was possible and that he should start

looking for a job. Stelly advised that he subsequently went to Rick’s Towing to
16

retrieve an employment application in the event he would be terminated. He

agreed that while at Rick’s Towing, he answered the phone, talked on the radio,

and greeted customers. Stelly could not remember whether he answered a phone

call and provided information regarding the cost to tow a vehicle. He explained

that he volunteered at Rick’s Towing for approximately two weeks and learned the

business.

A November 14, 2013 letter from Richard Baker, the President of Rick’s

Towing, was introduced into evidence. Baker advised that Stelly “has never been

employed by Rick’s Towing” and was “seeking an opportunity for employment if

in fact termination would be immanent [sic].” He stated that Stelly observed

operations but “never received any compensation.”

The December 11, 2013 polygraph results along with a DVD of Stelly’s

examination were attached to the report and placed in the record. They reveal that

Stelly denied working for Rick’s Towing while on administrative leave. The

report further notes that the examiner, Detective Pattum, “ruled [] Stelly to be

Deceptive.”

We find the above evidence supports the Board’s finding that Stelly violated

LPD policies and procedures by engaging in off-duty employment at Rick’s

Towing while on paid administrative leave and failing to complete an off-duty

employment request form. As such, the Board’s decision was made in good faith

and for cause. Accordingly, the trial court did not manifestly err in upholding the

Board’s decision, and Stelly’s assignments of error are without merit in this regard.

II. Police Officers’ Bill of Rights

Stelly contends the trial court’s upholding of the Board’s ruling was not

made in good faith and for just cause because the appointing authority failed to

comply with the police officers’ Bill of Rights (POBOR), which is governed by
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La.R.S. 40:2531-2535. Under the statute, a police officer “shall have the right to

be represented by counsel” during questioning. La.R.S. 40:2531(B)(4)(a).

Additionally, the police officer’s “counsel shall be allowed to offer advice to

the . . . officer and make statements on the record regarding any question asked of

the . . . officer at any interrogation, interview, or hearing in the course of the

investigation.” La.R.S. 40:2531(B)(4)(c). Stelly alleges his due process rights

under POBOR were violated when his counsel was denied the right to be present

during Stelly’s polygraph examination.

In Louisiana, the supreme court stated the following with respect to

polygraph examinations of police officers:

Police officers throughout the land are routinely subjected to
polygraph tests, in both the pre-employment screening process and in
investigatory actions involving official misconduct. In fact, the
Employee Polygraph Protection Act of 1988, which generally
prohibits private employers from using polygraphs in the workplace,
contains an exception for federal, state and local government
employees. See 29 U.S.C. §§ 2001-2008. Further, Louisiana courts
have long recognized that a civil service employee may be ordered to
take a polygraph, and that the employee can be suspended or
discharged for failing to take a polygraph.

Evans v. DeRidder Mun. Fire, 01-2466, p. 6 (La. 4/3/02), 815 So.2d 61, 66-67, cert.

denied, 02-650 (2003), 537 U.S. 1108, 123 S.Ct. 884 (footnote omitted).

We further note that polygraph tests are conducted under certain conditions:

“the subject should be physically rested, sober, and mentally alert; he or she is

interviewed privately by the examiner. No person is permitted in the examination

room during the test other than the examiner and the subject, and no external

distractions or disturbances are tolerated.” 14 Am. Jur. Proof of Facts 2d 1 § 2.

(Originally published in 1977).

Louisiana law and jurisprudence are silent, however, with respect to whether

a police officer’s due process rights under POBOR are violated when an attorney is

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not allowed to be present in the same room as the police officer examinee during

the polygraph examination. In this case, the Board and the trial court rejected

Stelly’s due process claim. The trial court found that notwithstanding the

polygraph test, Stelly had a lawyer present at every stage of the proceeding. It held:

THE COURT: . . . But if what you’re telling me is the only
time he didn’t have counsel present was during the polygraph, that
makes a difference to me.

....

THE COURT: No, but . . . that gets me to where I need. That
is the issue in the case, and I deny . . . I find that it is not an absolute
right to a lawyer, the polygraph, and I don’t believe that’s an issue
that changes my mind on the firing. The Court denies the request at
this time.

....

THE COURT: It was only on that one issue that I think would
have cause me a problem if it had been in a general interview. Okay.

The Board’s and the trial court’s ruling was based upon the testimony and

evidence adduced at the September 9, 2015 Board hearing regarding Stelly’s

appeal of his termination. At the hearing, Stelly testified that he received a direct

order to take a polygraph. According to Stelly’s testimony, he agreed to take the

polygraph because he could have been terminated if he did not. He admitted that

before submitting to the polygraph, Stelly reviewed the POBOR and placed a

check by a written provision indicating he would give a statement without an

attorney present. Stelly revealed he also wrote on the POBOR that he was told his

lawyer could not be present during the polygraph. Stelly agreed that he consented

to be polygraphed by signing and initialing another document.

A LPD “Consent To Be Polygraphed” was submitted into evidence at the

hearing. The document is dated December 11, 2013, signed by Stelly as the

examinee, and signed by Detective Pattum as the examiner. Therein, Stelly

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consented to taking a polygraph examination “voluntarily, without duress[ or]

coercion[.]” He acknowledged that he “cannot be forced to take this test by

anyone” and that he had “no physical or mental condition which would prevent”

him from taking the polygraph.

A POBOR was also submitted into evidence at the hearing. The document

is dated December 11, 2013, signed by Stelly, and lists Sergeant Arwood as the

reporting party. The POBOR lists the rights afforded to police officers under

investigation pursuant to La.R.S. 40:2531. The POBOR states: “The law

enforcement officer shall be entitled to the presence of his/her counsel,

representative, or both, at the interrogations in connection with the investigation.”

It reveals Stelly wrote his initials next to the following sentence: “I am willing to

give a statement without an attorney and/or representative present.” The POBAR

contains a notation, written by Stelly, that he was informed no lawyer could be

present during the polygraph.

Detective Pattum testified that he administered the polygraph. Detective

Pattum further testified that he never told Stelly that he could not have an attorney

present during the polygraph examination. Rather, he stated that both he and

Sergeant Arwood spoke to Stelly’s attorney, Daniel Landry. Detective Pattum

explained that he also advised Landry that he was not allowed in the room during

Stelly’s polygraph. He indicated that he told Landry that he could watch the

polygraph from a monitor in a different room during the examination. Detective

Pattum explained that he had never administered a polygraph with an attorney

present in the same room because it could cause an examinee to become stressed

and render the polygraph invalid. Detective Pattum also explained that if an

attorney knocked on the door while he was administering a polygraph examination,

he would stop and “not go[] through with the polygraph . . . because we’re not
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supposed to have any interruptions.” Detective Pattum revealed that prior to taking

the polygraph, Stelly never indicated that he did not want to go forward without an

attorney present. According to Detective Pattum, Stelly willingly signed the

consent and the POBOR. Detective Pattum could not recall whether Stelly

requested an attorney prior to undergoing the polygraph.

Chief Craft also testified and explained that an attorney’s presence during a

polygraph examination could distract the examinee and skew the results. He

explained that, “we never allow any attorney to be in the same room, but we

always allow attorneys if they want to see the test and hear the questions asked

they have, that opportunity to do that in an adjoining room[.]” Chief Craft

believed Landry was not present during Stelly’s polygraph because Landry knew

he could not be in the same room as Stelly.

At the hearing, Landry testified Stelly was requested by Sergeant Arwood to

undergo a polygraph examination. Landry stated that Detective Pattum advised

that he could be present at the police station, but not in the same room as Stelly,

during the examination. Landry explained he was not at the police station during

Stelly’s examination since he would be unable to make any comments on the

record. Landry agreed that only the examiner and examinee are allowed in the

same room during a polygraph examination.

In brief, Stelly cites Miller v. City of Gonzales, 15-1008 (La.App. 1 Cir.

8/31/16), 202 So.3d 1114, wherein a police officer appealed his termination to the

board, trial court, and appellate court. On appeal, Miller alleged the board erred in

affirming his termination based upon the following two POBOR violations: (1) he

was not allowed to record the questioning during the polygraph in violation of

La.R.S. 40:2531(B)(3), which provides that all interrogations shall be recorded in

full, and (2) he was denied the assistance of counsel during the polygraph, in
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violation of La.R.S. 40:2531(B)(4)(a) and (c). The first circuit held that the

polygraph examination constituted an interrogation under La.R.S. 40:2531(B)(3).

Importantly, and for purposes of this matter, the first circuit never addressed the

issue of whether Miller’s denial of the assistance of counsel during the polygraph

violated La.R.S. 40:2531(B)(4)(a) and (c). Accordingly, Stelly’s reliance on Miller

is misplaced.

In this case, the evidence reveals that Stelly was afforded the opportunity to

have an attorney present at every stage of the proceeding. It further shows that

although his attorney could not be in the same room as Stelly during the polygraph,

his counsel could have watched the examination from an adjoining room. We are

unaware of, nor were we presented with, any law or jurisprudence that provides a

police officer has an absolute right to assistance of counsel during a polygraph

examination under La.R.S. 40:2531(B)(4)(a) and (c). Accordingly, we find the

Board was not manifestly erroneous in ruling that the LPD complied with POBOR.

The evidence reveals the Board’s decision was made in good faith and for cause.

We affirm the trial court’s judgment upholding the Board’s termination of Stelly.

Stelly’s assignment of error is without merit in this regard.

CONCLUSION

The trial court’s judgment upholding the Lafayette Municipal Fire and

Police Civil Service Board’s affirmation of Stelly’s termination from his job with

the Lafayette Police Department is affirmed. All costs of this appeal are assessed

against Nolvey Stelly.

AFFIRMED.

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