Lafayette Consolidated Government v. Jeremy Robert

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-179

LAFAYETTE CONSOLIDATED GOVERNMENT, ET AL.

VERSUS

JEREMY ROBERT

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20204797
HONORABLE KRISTIAN DENNIS EARLES, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and D. Kent Savoie,
Judges.

APPEAL CONVERTED TO APPLICATION FOR SUPERVISORY WRIT;
WRIT GRANTED AND MADE PEREMPTORY;
JUDGMENT OF THE DISTRICT COURT REVERSED AND REMANDED.

Allyson C. Melancon
820 East St. Mary Boulevard
Lafayette, LA 70503
(337) 235-5791
COUNSEL FOR DEFENDANT-APPELLANT:
Jeremy Robert

Marie Candice Hattan
P. O. Box 91850
Lafayette, LA 70509
(337) 234-0431
COUNSEL FOR PLAINTIFF-APPELLEE:
Lafayette Municipal Fire & Police Civil Service Board

Michael Patrick Corry, Sr.
Tyler C. Cooley
Briney Foret Corry
413 Travis Street, Ste 200
Lafayette, LA 70505-1367
(337) 237-4070
COUNSEL FOR PLAINTIFFS-APPELLEES:
Lafayette Consolidated Government
Lafayette Police Department

PICKETT, Judge.

Jeremy Robert, a patrol officer with the Lafayette Police Department,

appeals the judgment of the district court reversing the decision of the Lafayette

Municipal Fire and Police Civil Service Board, which overturned Officer Robert’s

disciplinary sanction of termination imposed by Lafayette City-Parish Mayor-

President Josh Guillory.

FACTS

This appeal arises from disciplinary proceedings against Officer Robert.

While arresting an uncooperative suspect during a domestic call, Officer Robert

placed the suspect in handcuffs and leg shackles. When the suspect persisted in

kicking the inside of the patrol vehicle, Officer Robert used another pair of

handcuffs to connect the leg shackles and the handcuffs, in violation of department

policy. When the suspect continued her uncooperative behavior in the patrol

vehicle, Officer Robert pulled the suspect out of the vehicle, and she struck her

head on the vehicle and the pavement.

At the hearing before the Lafayette Municipal Fire and Police Civil Service

Board (“the Civil Service Board”), held September 16, 2020, the following

stipulation as to the chronology of events was entered into the record:

MS. [ALLYSON] PREJEAN [Counsel for Officer Robert]:

Joint stipulations. Jeremy Robert was a regular employee and
classified Civil Service at all times relevant. He served as an LPD
patrol officer from November 2016 to July 10, 2020.

Robert was involved in an incident on April 10 th, 2020, wherein
LPD officers were dispatched to a domestic disturbance, which is the
subject of this appeal.

On April 21st, 2020, LPD Interim Chief Scott Morgan ordered
an administrative Internal Affairs investigation relative to allegations
of excessive force, conduct unbecoming of an officer.

On April 22nd, 2020, Chief Morgan, through Major Keith
Gremillion, issued a notice of administrative shift level investigation
AD-2020-006, which placed Robert on notice that his actions gave
rise to a possible violation of excessive force in professional conduct
and responsibilities.

On April 24th, 2020, Robert provided his compelled statement
to LPD Internal Affairs Sergeant U. J. Provost and Detective Patrick
Pattum.

On May 11th, 2020, Major Gremillion advised CHIEF Morgan,
via interoffice communication, that the attached case is ready for your
review.

60-Day mark is June 19, 2020.

On May 18th, Robert was provided notice that a predisciplinary
hearing for administrative investigation AD-2020-006, is scheduled
for Friday, May 22, 2020, for alleged violations of professional
conduct and responsibilities. General Order 201.2, use of force;
General Order 301.2, prisoner transportation; General Order 302.2,
and conditions of employment PPM 261-2.

On May 22nd, 2020, Robert attended his predisciplinary
hearing.

On June 15th, 2020, Robert was served with correspondence
dated June 9th, from Chief Morgan, advising that after careful review
of the Internal Affairs investigation (AD-2020-006), and consideration
of your verbal explanation, the complaint was sustained.

Michael Corry, counsel for Lafayette Consolidated Government (LCG),

interjected at this point in the proceedings to explain that this stipulation was

a chronology of events consistent with the exhibits submitted into the record.

Ms. Prejean then continued:

Morgan further advised that Robert would be receiving a one-
day suspension without pay on June 11th, 2020.

On June 11, 2020, Robert served his one-day suspension.

On June 30th, 2020, Robert appealed his one-day suspension to
this Board.

On July 8, 2020, this Board accepted Robert’s appeal.

On Friday, July 10, 2020, at approximately 4:00 p.m., Robert
was advised verbally by me, that he could resign or be terminated
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effective 6:00 p.m. that date. A request to allow Robert to return from
vacation and address the issue the following Monday was denied by
LCG.

At approximately 6:00 p.m., Robert advised me that LCG LPD
will have to terminate him, which message was relayed to Mr. Corry
via telephone conversation.

On July 13, 2020, Robert was provided correspondence dated
July 10th, 2020, from Chief Morgan advising that Mayor Guillory had
reviewed the matter and had determined that his actions – your actions
warrant termination.

On that date, he also filed an appeal [of] his termination [to]
this Board.

On July 16, 2020, Robert withdrew his appeal of the one-day
suspension he had already served.

And that is a chronology that we agree took place in this matter.

MR. CORRY:

And it’s consistent with the exhibits that have been admitted.

Before the hearing in front of the Civil Service Board, Officer Robert filed a

Motion to Bifurcate Hearing, or Alternatively Designate Presentation of Issue. In

that motion, Officer Robert argued that this case presented an issue similar to a

Police Officer Bill of Rights matter, which is customarily heard by the Civil

Service Board at the outset of any hearing. Officer Robert argued that the Civil

Service Board should first consider whether Mayor Guillory had the authority to

issue a second discipline (termination) to Officer Robert after Chief Morgan, who

Mayor Guillory had designated as appointing authority, had already issued a

disciplinary sanction (one-day suspension) and that suspension had been served.

Officer Robert further argued that, if the Civil Service Board found Mayor

Guillory had the authority to terminate Officer Robert, the sanction of termination

was not made in good faith for cause. Lafayette City Government (LCG) opposed

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the motion to bifurcate, relying on La.R.S. 33:2501, which governs the conduct of

disciplinary hearings by civil service boards.

At the September 16, 2020 hearing, the parties introduced their evidence,

read the above stipulations into the record, and swore in the witnesses expected to

testify at the hearing. Counsel for Officer Robert argued that the second

disciplinary action was inappropriate, as argued in his motion. LCG began to

argue that this was not a Bill of Rights issue that was properly heard before the

merits, which Officer Robert conceded. LCG further argued that the mayor’s

delegation to the interim police chief of appointing authority did not divest the

mayor of appointing authority in this case. Further, LCG argued that because

Officer Robert appealed his one-day suspension and it was not final, the mayor had

the authority to impose a different sanction and terminate Officer Robert. The

members of the Civil Service Board and counsel proceeded to engage in discussion

of the circumstances and timing of the mayor’s involvement in this case, which the

parties agreed was a “unique” situation. The Civil Service Board then voted to

discuss the matter in executive session.

When the Civil Service Board reconvened in public session, a motion was

made and seconded to reverse the termination. No witnesses testified, and there is

no indication that the evidence submitted by either party was reviewed by the

members of the Civil Service Board. When the Civil Service Board members

voted, each of them made statements:

MR. PRUDHOMME:

Yes, I just want to say a couple of things.

Number 1, I’ve been on this Board on two separate occasions.
And for a few years, I’ve never seen anything like it before. It’s
highly unusual. I think it sets a very questionable precedent. You
know, we don’t – I don’t need to see a body cam or any footage,
because the designated appointing authority and the IA and everybody
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else saw that and rendered a verdict of a one-day suspension. And
every officer has the right to appeal to this Board, understanding that
this Board could very well rule to terminate, or to give a 30-day
suspension, or anything else.

So for the Mayor-President to overrule everything two days
later to me is unacceptable, so I vote yes.
....
MR. PREJEAN:

Yes. Double standards, that’s my opinion.

....

MR. MOUTON:

Before I vote, I would stress to Mr. Corry the importance of the
Civil Service Board and the classified employees. I know that on
several occasion[s] after the decision was rendered and Mr. Robert
was terminated, I was approached by many employees concerned that
if they were to appeal, that – that they would face some type of
termination, or some type of further discipline from the Mayor’s
office. And that concerns me. It concerns me if we were to uphold
the termination that – that what other discipline out there and for how
long do you go back? DO you go back five years, four years, one
year, and you overturn the discipline?

You know, the discipline, the appointing authority was given to
the Chief, you had – you had very senior officers that sat there and
watched it. They rendered their decision of a day’s suspension. And
to come back and discipline that officer again, or any employee rather,
is just wrong. And for that reason, I vote yes.

....

MS. OLIVIER:

Yes. I’m also voting yes. I believe that our leadership might
have shown a lapse of maturity and not trusting the leadership that he
appointed in January in Interim Chief Gordon.

....

MR. BROUSSARD:

I would vote yes. This good faith and just cause were met with
the original one-day suspension, and that the employee has the right to
appeal and that this incident could raise question to any employee,
such as Officer Mouton stated, that if they filed an appeal with this
Board, which is in their rights to as an employee with the Civil
Service, that they could face retaliation from the administration or the
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appointing authority. And that all employees of the fire and police
department should know that this Board is here for them to address
their rights and the ability to appeal any disciplinary action or
discrimination issues at any time. That’s it.

Having reversed the termination of Officer Robert, the Civil Service Board then

voted to make Officer Robert whole with respect to salary and seniority.

LCG filed an appeal with the district court pursuant to La.R.S. 33:2501(E),

seeking reinstatement of the termination of Officer Robert. The district court did

not hear arguments on the merits of the issue of Officer Robert’s discipline. It

ruled in open court that the Civil Service Board did not act according to La.R.S.

33:2501(B)(2), which states, “Both the employee and the appointing authority shall

be afforded an opportunity to appear before the board, either in person or with

counsel, and present evidence to show that the action was or was not taken in good

faith for cause as set forth in the provisions of this Part.” The district court signed

a judgment reversing the decision of the Civil Service Board and reinstating the

mayor’s decision terminating Officer Robert’s employment. The district court also

denied Officer Robert’s Motion for a New Trial.

Officer Robert filed a suspensive appeal in this court, seeking review of the

district court’s judgment.

ASSIGNMENTS OF ERROR

On appeal, Officer Robert asserts two assignments of error:

1. The [district] court’s ruling was manifestly erroneous insofar as it usurped
the Board’s exclusive statutory authority to promulgate its own rules and to
conduct hearings as it deems advisable.

2. The [district] court’s ruling reversing the Board’s finding was manifestly
erroneous as the action by the [mayor] in rendering secondary discipline was
arbitrary and capricious.

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DISCUSSION

At the outset, we note that this court lacks appellate jurisdiction in this

matter. The legislature vested appellate jurisdiction in the district court pursuant to

La.R.S. 33:2501(E), and therefore the court of appeal is divested of appellate

jurisdiction. Miazza v. City of Mandeville, 10-304 (La. 5/21/10), 34 So.3d 849.

Pursuant to this court’s supervisory authority as enunciated in La.Const. Art. 5, §

10, we convert the appeal to an application for supervisory writs. See In re Scott,

15-199 (La.App. 3 Cir. 10/7/15), 175 So.3d 1058; City of Alexandria v. Dixon, 17-

327 (La.App. 3 Cir. 9/20/17), 228 So.3d 1284, 1288, writ denied, 17-1756 (La.

12/5/17), 231 So.3d 627.

An appeal of a civil service board’s decision “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.” La.R.S. 33:2501(E)(3).

“Good faith” has been established if the board’s actions were not
arbitrary or capricious or were not motivated by political expediency
or prejudice. Moore [v. Ware, 01-3341, (La. 2/25/03)], 839 So.2d
940. A board’s actions are arbitrary or capricious if there is no
rational basis for the actions. Id. The district court “should accord
deference to a civil service board’s factual conclusions and must not
overturn them unless they are manifestly erroneous.” Id. at 946. The
court of appeal must accord the same deference to a civil service
board’s factual finding as it would to those of a trial court. Id. A
factual finding is manifestly erroneous when there exists no
reasonable basis for it in the record. Stobart v. State through Dep't of
Transp. and Dev., 617 So.2d 880 (La.1993).

Hewitt v. Lafayette City-Parish Consol. Gov’t, 17-45, p. 10 (La.App. 3 Cir.

4/4/18), 243 So.3d 79, 86, writ denied, 18-980 (La. 10/8/18), 253 So.3d 794.

The district court did not reach the merits of whether the punishment meted

out by the mayor was in good faith for cause. Instead, it found that LCG did not

have an adequate opportunity to be heard, citing La.R.S. 33:2501(B)(2), as noted

above. The Civil Service Board did not allow LCG to present a case. There is no

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indication that the Civil Service Board reviewed the evidence introduced at the

hearing. Instead, it determined that the mayor could not impose a second

discipline after the officer had already served the discipline handed down by the

chief of police. Their comments when they voted make that clear. We find the

district court’s finding that the Civil Service Board erred is correct.

Nevertheless, the proper disposition was not reinstatement of the discipline

imposed by the mayor. Both LCG and Officer Robert should have an opportunity

to present their full case to the Civil Service Board. Thus, we find the proper

remedy in this case is to remand to the Civil Service Board for a full hearing for it

to determine, in the first instance, if Officer Robert’s termination was in good faith

for cause.

CONCLUSION

We convert this appeal to an application for supervisory writs. We grant the

writ and reverse the judgment of the district court re-imposing the termination of

Officer Robert. The case is remanded to the Lafayette Municipal Fire and Police

Civil Service Board for a full hearing consistent with this opinion. Costs of this

appeal are assessed to LCG in the amount of $2,964.30.

APPEAL CONVERTED TO APPLICATION FOR SUPERVISORY
WRIT;
WRIT GRANTED AND MADE PEREMPTORY;
JUDGMENT OF THE DISTRICT COURT REVERSED AND
REMANDED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.

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