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Stelly v. City of Lafayette

Court of Appeals of Louisiana, Third Circuit

November 8, 2017

NOLVEY STELLY
v.
CITY OF LAFAYETTE, ET AL.

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

          C. Theodore Alpaugh, III Guste, Barnett, Schlesinger, Henderson & Alpaugh, L.L.P. Counsel for Plaintiff/Appellant: Nolvey Stelly

          Michael P. Corry, Sr., J. Daniel Siefker, Jr., Hallie P. Coreil, Briney Foret Corry Counsel for Defendant/Appellee: Lafayette City-Parish Consolidated Government Lafayette Police Department

          M. Candice Hattan Attorney at Law Counsel for Defendant/Appellee: Lafayette Municipal Fire & Police Civil Service Board

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

          PHYLLIS M. 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.
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 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 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:

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 ...

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