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Sanders v. City of Mandeville Municipal Police Department

Court of Appeals of Louisiana, First Circuit

November 2, 2018

JOHNNIE SANDERS
v.
CITY OF MANDEVILLE MUNICIPAL POLICE DEPARTMENT,

          Appealed from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany, Louisiana Docket Number 2017-12060 Honorable William J. Knight, Judge Presiding

          L. Jay McCreary Slidell, LA and John D. Sileo Casey W. Moll New Orleans, LA Counsel for Plaintiff/Appellant, Johnnie Sanders.

          Michael F. Weiner Covington, LA Counsel for Defendant/Appellee, City of Mandeville, Municipal Police Department.

          BEFORE: WHIPPLE, C.J., McCLENDON AND HIGGINBOTHAM, JJ.

          WHIPPLE, C.J.

         Johnnie Sanders, a former patrolman for the Mandeville Police Department (MPD), appeals a judgment of the district court, which affirmed the decision of the Municipal Police Employees' Civil Service Board (the Board) to uphold his termination from the MPD. After reviewing the facts and applicable law, we hereby convert the appeal to an application for a supervisory writ and deny the writ.

         FACTUAL AND PROCEDURAL BACKGROUND

         When Sanders, a police officer for the MPD on February 20, 2017, he was shopping at a Home Depot store in Covington, Louisiana. He put a Ridgid battery-powered miter saw, a laser level, and two lithium batteries into his shopping cart. After he finished shopping, Sanders proceeded to the cash register, where he paid for the saw and level. As he walked out of the building, Sanders was confronted by Home Depot Loss Prevention Specialist Corey Crowe, who asked Sanders about the batteries. Sanders stated that he believed the batteries belonged with the Ridgid miter saw and that he found them on the shelf near the saw. Crowe led Sanders into his office where he called the St. Tammany Parish Sheriffs Office. When the Sheriffs deputies arrived, Sanders was arrested for theft of goods as a result of his shoplifting the two lithium batteries valued at $168.00.

         By notice dated February 21, 2017, Sanders was informed that an Internal Affairs (IA) investigation had begun regarding his arrest, centering on his violation of Municipal Police Employees' Civil Service Rule 9.08[1] and Mandeville Police Code of Conduct Rule 2 (Unbecoming Conduct) and Rule 3 (Conformance to Laws).[2] Sanders also received a notice dated the same day, informing him that he was being placed on administrative leave until his disciplinary hearing.

         The IA investigation was led by Lieutenant Vincent Liberto. At the conclusion of the investigation, Lt. Liberto prepared a report in which he concluded that Sanders had violated Municipal Police Employees' Civil Service Rule 9.O8(N) and Mandeville Police Code of Conduct Rule 2 (Unbecoming Conduct), Rule 3 (Conformance to Laws), and Rule 40 (Truthfulness).[3] Lt. Liberto submitted his report to Assistant Chief Ron Ruple, the head of IA at the MPD. After reviewing the case file, the evidence, and the investigation conducted by Lt. Liberto, Assistant Chief Ruple agreed with Lt. Liberto's findings and recommended termination of Sanders's employment with the MPD. Assistant Chief Ruple gave this recommendation to Gerald Sticker, Chief of the MPD.

         Prior to any discipline being imposed, Sanders was given the opportunity to present his version of events with regard to the charges brought against him, at which time he appeared with his attorney. Following Sanders's appearance with his attorney, a review of the surveillance footage from the Home Depot and the entire IA case file, Chief Sticker upheld the findings as to the rule violations and likewise determined that dismissal was the warranted course of action. Accordingly, by notice dated March 17, 2017, Sanders was given notice of termination of his employment with the MPD, effective as of the date of the notice.

         Sanders appealed his dismissal to the Board pursuant to LSA-R.S. 33:2501(A). On April 24, 2017, the Board conducted a full evidentiary hearing at which numerous people, including Sanders, testified, and several exhibits, including surveillance footage from the Home Depot, were introduced into evidence. Following this hearing, the Board determined, by a two-to-one vote, to uphold the dismissal.

         Sanders then appealed the Board's decision to the Twenty-Second Judicial District Court pursuant to LSA-R.S. 33:2501(E)(1). After considering the record, the district court found that the Board's decision was made in good faith for cause. Consequently, the district court affirmed the Board's decision to uphold Sanders's termination from the MPD.

         Sanders filed a devolutive appeal to this court, contending that the action of the MPD in terminating his employment, as affirmed by the Board and by the district court, was erroneous due to the lack of just cause for the dismissal.

         JURISDICTION

         At the outset, we note that the MPD has asserted that this court lacks appellate jurisdiction over this matter. Moreover, this court has a duty to examine subject matter jurisdiction on its own motion, even when the issue is not raised by the litigants. Monterrey Center, LLC v. Education Partners, Inc., 2008-0734 (La.App. 1st Cir. 12/23/08), 5 So.3d 225, 228-229.

         Appellate review of decisions by the Municipal Fire and Police Civil Service Boards resulting in a discharge or any corrective or disciplinary action is granted pursuant to LSA-R.S. 33:2561(E), which provides as follows:

Any employee under classified service and any appointing authority may appeal from any decision of the board or from any action taken by the board under the provisions of this Part which is prejudicial to the employee or appointing authority. This appeal shall lie direct to the court of original and unlimited jurisdiction in civil suits of the parish wherein the board is domiciled. This appeal shall be taken by serving the board, within thirty days after entry of its decision, a written notice of appeal stating the grounds thereof and demanding that a certified transcript of the record or written findings of fact and all papers on file in the office of the board affecting or relating to such decisions be filed with the designated court. The board shall, within ten days after the filing of the notice of appeal, make, certify, and file the complete transcript with the designated court, and that court thereupon shall proceed to hear and determine the appeal in a summary manner. This hearing 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 or to whether a board member should have or failed to recuse himself in accordance with Subsection D of this Section. No appeal to the court shall be taken except upon these grounds.

         As recognized by the Louisiana Supreme Court, the district court has subject matter jurisdiction to consider an appeal pursuant to LSA-R.S. 33:2561(E). Moreover, because appellate jurisdiction is vested in the district court pursuant to LSA-R.S. 33:2561(E), the intermediate appellate courts lack appellate jurisdiction over these matters. Miazza v. City of Mandeville, 2010-0304 (La. 5/21/10), 34 So.3d 849. Nonetheless, in Miazza, the Supreme Court directed this court to convert the plaintiffs appeal of the district court's judgment to an application for supervisory writs. Miazza, 34 So.3d at 849. Since the Supreme Court's pronouncements in Miazza, this court has on numerous occasions converted appeals of this nature to applications for supervisory writs. See Beck v. City of Baker, 2011-0803 (La.App. 1st Cir. 9/10/12), 102 So.3d 887, 889 n.1, writ denied, 2012-2455 (La. 1/11/13), 107 So.3d 617; Dwyer v. West Feliciana Fire Protection District #1 Civil Service Board, 2011-1096 (La.App. 1st Cir. 12/21/11), 80 So.3d 1229, 1230 n.1; McGee v. St.Tammany Parish Fire Protection Dist. No. 1, 2010-1894, p. 2 (La.App. 1st Cir. 5/6/11) (unpublished), 2011 WL 2616831; Baton Rouge Police Department v.O'Malley, 2010-1386 (La.App. 1st Cir. 3/25/11), 64 So.3d 773, 774 n.1; and Meiners v. St. Tammany Fire Protection District #4 Board Of ...


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