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Hewitt v. Lafayette City-Parish

Court of Appeals of Louisiana, Third Circuit

April 4, 2018

ULETOM HEWITT
v.
LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT AND LAFAYETTE MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD

          APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, DOCKET NO. 20153790 HONORABLE MICHELLE M. BREAUX, DISTRICT JUDGE

          C. Theodore Alpaugh, III Guste, Barnett, Schlesinger, Henderson & Alpaugh, L.L.P. ATTORNEY FOR APPELLANT: Uletom Hewitt

          Michael P. Corry, Sr., J. Daniel Siefker, Jr., Briney Foret Corry, LLP ATTORNEYS FOR APPELLEE: Lafayette City-Parish Consolidated Government

          Court composed of Sylvia R. Cooks, Shannon J. Gremillion and Van H. Kyzar, Judges.

          SHANNON J. GREMILLION, JUDGE

         Uletom Hewitt appeals the trial court's appellate review of the Lafayette Municipal Fire and Police Civil Service Board's (the Board) decision upholding his termination from employment as a police officer. For the reasons that follow, we affirm.

         FACTS AND PROCEDURAL HISTORY

         Hewitt worked as a police officer for the Lafayette Police Department (LPD) from 2006 to August 30, 2011. He received his BA degree in criminal justice from the University of Louisiana at Monroe in 2000. Before joining LPD, Hewitt worked as a police officer for the Grambling Police Department for roughly one year and as a deputy for the Ouachita Parish Sheriff's Office for approximately five years. For the six years prior to that, Hewitt worked for the Lincoln Parish Detention Center and Richwood Correctional Center. Hewitt's supervisors, superior officers, and LPD Chief Jim Craft praised Hewitt on many occasions.

         On December 21, 2010, while working off-duty security detail at Dillard's, Hewitt believed he saw evidence of a bomb in the Mall of Acadiana food court and took steps to evacuate the mall's patrons. Hewitt was ultimately disciplined by LPD for his over-exuberant handling of the matter and for disobeying an order from one of his superiors to not evacuate the mall. On March 3, 2011, Hewitt was suspended for five days without pay based on the finding at a pre-determination hearing "that Mr. Hewitt disobeyed a direct order from a superior officer, Sergeant Starring, which caused panic and chaos, which unnecessarily alarmed the public." Hewitt v. City of Lafayette, 15-912, p. 3 (La.App. 3 Cir. 3/2/16), 186 So.3d 357, 359. Hewitt appealed the determination to the Board. On January 14, 2015, the Board upheld the decision and punishment, as did the Fifteenth Judicial District Court and this court. Id.

         On March 2, 2011, Hewitt was accused of failing to properly use the in-dash camera system in his police cruiser. A pre-determination hearing was held on this complaint, and on August 8, 2011, Hewitt was suspended for seven days without pay. Hewitt appealed his suspension to the Board, which refused to hear the appeal on the basis that Hewitt's suit pending in federal court precluded it from hearing Hewitt's appeal. In Hewitt v. Lafayette Municipal Fire & Police Civil Service Board, 13-1429 (La.App. 3 Cir. 6/4/14), 139 So.3d 1213, this court found that the Board's refusal to hear Hewitt's appeal was arbitrary and capricious and without legal cause. The case was remanded to the district court, which was ordered to issue a writ of mandamus compelling the Board to hear Hewitt's appeal.

         Hearings on Hewitt's appeal to the Board were held on January 14, 2015, eight months after this court's ruling, at which time the Board upheld the suspension. Hewitt appealed to the district court and it upheld the Board's decision. This court affirmed the trial court's ruling. Hewitt v. Lafayette Mun. Fire & Police Civil Serv. Bd., 15-835 (La.App. 3 Cir. 3/2/16), 186 So.3d 339, writ denied, 16-619 (La. 5/27/16), 192 So.3d 736.

         On March 25, 2011, Hewitt was placed on paid administrative leave pending a fit-for-duty examination. According to Hewitt, he informed Dillard's that day that he had been placed on administrative leave and was thus ineligible to work off-duty detail. According to Hewitt's testimony and written statements in the record, Dillard's did not want to lose Hewitt as an employee, but under their employment policy they could not keep his position open for an indeterminate length of time. As Hewitt could not say how long his administrative leave would last, Dillard's had no choice but to terminate his employment. Further, according to Hewitt, Dillard's invited him to apply for his job after the administrative leave was over. LPD, on the other hand, introduced documents at the hearing that indicated Dillard's fired Hewitt for leaving the premises while fraudulently still being registered on the time clock as working. Further, Dillards' asserted that on at least six occasions during which he left while still clocked in, Hewitt had paused at the time clock to appear to clock out.

         According to Hewitt, when he arrived for his shift duty at LPD on March 25, 2011, he was told that he was placed on administrative leave effective immediately and that he would be informed later as to the reason therefor. He was required to surrender his weapon, Taser, and summons book. He was not allowed to go to his police unit, which was secured at LPD headquarters. He was instructed not to call, email, text, or in any manner contact the LPD, or anyone at LPD, until further notice. When he indicated that he was leaving to walk home, the officers said they would give him a ride home. He initially refused their offer and said he would rather just walk. The officers in charge expressed their concern that it would not look good for a uniformed police officer to be seen walking home. Hewitt acquiesced.

         Dr. Thomas G. Latour, M.D., a psychiatrist, was asked to evaluate Hewitt. Lafayette City/Parish Nurse, Kim Bare, the person in charge of referrals for such evaluations, normally referred employees to Dr. Latour. Upon completing the evaluation, Dr. Latour wrote, "I feel he is fit for duty." On the same form, Dr. Latour wrote the following:

MENTAL HEALTH EXAMINATION: The patient is a casually groomed black male who appears to be in no acute distress. He relates well to the interviewer. His mood is one of depression and his affect is blunted. His speech is normal. He is oriented as to time, person, place and situation. His thought processes are intact without any looseness of associations. He denies having hallucinations. He is neither paranoid nor delusional. His memory is intact for recent and remote events. His intellectual functioning is considered to be fair and he has a good general fund of knowledge. . . ."

         The last sentence in Dr. Latour's report stated, "His judgment and insight are considered to be poor." This comment was marked through by hand, probably by Dr. Latour. An arrow was drawn from the scratched-through comment to the bottom of the page, and a handwritten note stated, "I do not agree with this statement." Dr. Latour then apparently signed his name after the handwritten notation. The marks on the document may indicate that Dr. Latour did not agree with the assessment that Hewitt had poor judgment and insight, but it certainly raised the question of why he signed the form in the first place with the notation that Hewitt's judgment and insight are poor.

         Chief Craft decided that the scratch-out and the handwritten comment left him unable to rely upon Dr. Latour's assessment, so he ordered Hewitt to submit to another assessment by a firm in Baton Rouge, Matrix, Inc.

         Hewitt was transported to Baton Rouge on June 21, 2011, in a police unit, accompanied by two officers, to the facility where he answered about 500 questions by Dr. Cary D. Rostow, Ph.D., M.P., a clinical psychologist. Dr. Rostow noted in his written report:

Officer Hewitt generally complied with the evaluation process, although he complained that he had already been "cleared" by another doctor and did not see the purpose. He did not refuse or attempt to refuse to submit to the examination. Officer Hewitt did not seek to change or alter the evaluation procedure.
. . . .
Officer Hewitt understood and agreed to all conditions of the evaluation before it took place.


When asked why the department sent him for this evaluation, Officer Hewitt wrote:
I really don't know why I'm here. The Chief suspended me for five days for a [sic] incident which occurred on December 21, 2010. I'm currently try [sic] to get Civil Service to hear my side of the story in that matter with my lawyer. I really do not know why I'm here but I have to comply with what they ask. I was seen by another doctor before and he said I was Fit for Duty.
In his written "recommendations" Dr. Rostow further stated, in part:
The following recommendations are based upon existing information, test data, interview information and what is believed to be the standards of police conduct and behavior expected in the department. It is not meant to be used alone, but can be a useful adjunct to decision making when combined with other information taken from administrative, supervisory and other sources.
Officer Hewitt has not complied with the requirements of the FFDE to a degree necessary for the examiner to come to a conclusion regarding his Fitness for Duty.


. . . .


Officer Hewitt was in denial of responsibility for all possible errors or mistakes regarding any observed difficulties documented by his department. He did not seem aware of the possibility that any actions of his could be questionable or may have caused others to be critical of his conduct. The problem, in his view, always resided with the behavior or actions of others. This denial pattern continued in psychometric testing which was invalid due to the denial of universal minor faults that are noted in healthy and impaired persons. Therefore, no statements may be made regarding his current Fitness for Duty.


         In an interview on July 11, 2011, conducted by LPD Internal Affairs Detective Shawn Terro and Sergeant Keith Gremillion, Dr. Rostow reiterated that Hewitt "answered questions. He did not refuse. He did not tell me it was none of my business or he wouldn't talk to me about it." He further stated, "That's full compliance with the interview. He complied with the interview." Ultimately, Dr. Rostow did not render any opinion as to Hewitt's fitness for duty and was not called as a witness before the Board. However, Dr. Rostow did state in the interview that Hewitt's responses to his questions exhibited a failure to acknowledge even the most common character lapses and indicated that Hewitt considered himself persecuted. Dr. Latour could not be called as a witness because he died before the hearing; therefore, his letter and written evaluation were entered in evidence.

         In addition to the fit-for-duty inquiry, LPD opened four separate investigations into Hewitt's performance. On June 22, 2011, Chief Craft drafted a memorandum to Hewitt advising Hewitt that investigation AD2011-011 alleged that Hewitt failed to complete an off-duty request form; worked off-duty security detail while on administrative leave; failed to advise LPD that his address had changed; failed to return calls of internal affairs investigators, despite being required to be "on call" while on administrative leave; and "gross insubordination." On June 29, 2011, Chief Craft drafted a memorandum to Hewitt outlining the investigation of whether Hewitt was insubordinate in "failing to fully comply with requirements for a Fit for Duty Exam and for giving false information during the Fit for Duty Exam." This investigation was designated as AD2011-012. Another memorandum from Chief Craft to Hewitt dated June 29, 2011, outlined the investigation designated AD2011-013, "Between January 2010 through March 2011 you failed to submit numerous Misdemeanor Summons [sic], written statements, and physical evidence involving multiple criminal cases." The memorandum advising Hewitt of investigation AD2011-14 alleged Hewitt's "utilization of LCG [Lafayette Consolidated Government] computer for personal use and the location of a pornographic image on your LCG computer."

         A pre-determination hearing was scheduled for August 25, 2011. The predetermination hearing was abbreviated, with two recorded statements Hewitt gave investigators and some supporting documentation presented. No other testimony was offered. Hewitt was present and represented by counsel.

         Hewitt was never returned to duty. Instead, he was kept on paid administrative leave, and then, on August 30, 2011, he was informed that he was going to be terminated for twelve alleged infractions, most of which were alleged to have occurred while Hewitt was on administrative leave:

1. Failure to respond on June 14 & 15, re: phone calls and messages left by the Internal Affairs section.
2. Failure to complete a change of address form after moving to Acadian Gardens Apartments, located at 710 South College.
3. Failure to complete off-duty security request forms for UPA Apartments and Acadian Garden Apartments.
4. Worked off-duty security while on paid administrative leave.
5. Committed gross insubordination by violating the conditions of paid administrative leave.
6. Untruthful during the administrative investigation - additional allegations not based on complaint.
7. Failure to comply with the requirements of the Fitness for Duty examination to a degree necessary for Dr. Rostow to come to a conclusion.
8. Questionable images and personal documents found on [Hewitt's] assigned Lafayette Consolidated Government laptop computer.
9. Failure to submit a total of 11 Misdemeanor Summons' [sic] and associated written statements and evidence.
10. Failure to submit a Request for Off-Duty Employment form for Dillard's Department Store.
11.Termination from employment working off-duty at Dillard's Department Store for violating company rule or policy.
12. Ma[king] false and untrue statements during an Administrative investigation.

         In June 2012, Hewitt and fifteen other officers of the LPD, many of whom were long-term employees, publicly alleged corruption and the existence of what they described as a "code of silence" within the LPD. These officers asserted that the LPD retaliated against them for refusing to participate in practices they considered improper and for exposing the alleged "code of silence." The officers and former officers filed suit in United States District Court for the Western District of Louisiana, Lafayette Division, in the matter entitled Marceaux v. Lafayette Parish Consolidated Government, docket number 12-1532

         The appeal of Hewitt's termination was heard by the Board on July 8, 2015. The Board upheld Hewitt's termination, with one dissenting vote. Hewitt timely appealed the Board's decision to the Fifteenth Judicial District Court, which was heard on September 19, 2016. The district court upheld Hewitt's termination on October 17, 2016.

         ASSIGNMENTS OF ERROR

         Hewitt timely filed the present appeal, alleging the district court erred as assigned below:

1. The conclusions reached and the penalties imposed were not made in good faith and for just cause.
2. The rulings of the District Court upholding the decision of the Board was erroneous as the decision 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 Uletom Hewitt violated the provisions of the Lafayette Police Department Standard Operating Procedures.
3. The ruling of the District Court upholding the decision of the Board was erroneous as the decision 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 Uletom Hewitt impaired the efficient operation of the public service.
4. The ruling of the District Court upholding the decision of the Board was erroneous as the decision 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.
5. The ruling of the District Court upholding the decision of the Board was erroneous as the decision of the Board was not made in good faith and for just cause as the appointing authority failed to comply with the Constitutional requirements enunciated by the Supreme Court in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).

         ANALYSIS

         Hewitt was a classified civil servant. Under Louisiana Constitution Article I, § 2, Hewitt's status as a classified civil servant constitutes a property right that cannot be taken from him without due process of law:

The Due Process Clause provides that the right to life, liberty and property cannot be deprived except pursuant to constitutionally adequate procedures. U.S. Const. amend. XIV; La. Const. Ann. art. X, § 8(A). A due process claim in the context of civil service employment depends upon an employee having a property right in continued comparable employment. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Tenured or classified civil service status is a property right and cannot be taken away without due process. See La. Const. Ann. art. I, § 2; Wilson v. Jefferson Parish, 95-470 (La.App. 5 Cir. 1/17/96), 668 So.2d 1167, writ denied, 96-413 (La.4/19/96), 671 So.2d 927; Bell v. Department of Health and Human Resources, 483 So.2d 945 (La.1986), cert. denied, 479 U.S. 827, 107 S.Ct. 105, 93 L.Ed.2d 55 (1986).
. . . .
Due process is a flexible standard and calls for such procedural protections as the particular situation demands. Morrissey v. Brewer,408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). As the United States Supreme Court noted in Loudermill, "the right to due process is conferred not by legislative grace, but by constitutional guarantee." Loudermill, 470 U.S. at 541, 105 S.Ct. 1487 (quoting Arnett v. Kennedy,416 U.S. 134, 167, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974)). Although a state may establish certain statutory procedural safeguards to protect property rights, the safeguards may still be judged insufficient (depending ...

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