Appealed from the Twenty-Sixth Judicial District Court for
the Parish of Bossier, Louisiana Trial Court No. 154116
Honorable Robert Lane Pittard, Judge
BREEDLOVE LAW FIRM, Pamela N. Breedlove, Counsel for
MILLER, LLP Michael D. Lowe, Counsel for Appellees
MOORE, STONE, and COX, JJ.
AND PROCEDURAL HISTORY
Craft ("Craft") appeals his termination from
employment as a District Chief for the Benton Fire Department
(the "fire department"). Craft's termination
was based on the fire chief's finding that Craft engaged
in misconduct while on duty. Craft, while on duty and using a
fire rescue truck as his transportation, visited Ms. Ashley
Roberts at her home for hours at a time. Craft was
romantically involved with Ms. Roberts at the time of these
visits, which occurred late at night and in the wee hours of
around the end of April or beginning of May of 2017,
Craft's subordinates at the fire department complained
that Craft was absent while on duty and his whereabouts were
unknown during these absences. According to Chief
Turner's testimony, this complaint included allegations
that Craft was deactivating the GPS in the fire truck which
he was using as transportation during these
Turner discussed this complaint with Craft, who explained
these absences by stating that he was visiting his estranged
wife and children at his home. This explanation was an
intentionally misleading half-truth if not a total
Chief Turner, unaware that Craft was actually visiting Ms.
Roberts during these absences, instructed Craft to swap
shifts with another district chief or take vacation leave if
he wanted to visit his family during his (otherwise)
scheduled work times. This discussion between Craft and Chief
Turner was not documented in writing or otherwise.
to four weeks later, on May 26, 2017, a local citizen, Trey
Hicks ("Hicks"), filed a written complaint against
Craft. This complaint included allegations that Craft, while
on duty as a district chief, was using a fire department
emergency response vehicle ("fire truck") to make
late-night visits to Ms. Roberts at her home. Ms. Roberts
confirmed these allegations in her interview, which was taken
during the course of the investigation. She also expanded on
the number of times which Craft made these visits.
Hicks' complaint included allegations that Craft had
threatened, stalked, or harassed Hicks. The fire department
forwarded a copy of the Hicks complaint to the Bossier Parish
Sheriff's Office ("BPSO") to determine whether
there would be a criminal investigation. The BPSO declined to
investigate the matter. Thereafter, on June 6, 2017, the fire
department commenced its own investigation of the
testimony, Craft admitted that, prior to being interrogated,
he was given a "notice of investigation" letter, a
copy of the Firefighter Bill of Rights, and a copy of
Hicks' written complaint. This notice also included a
direct order (hereafter, referred to as the "gag
order") to Craft to refrain from discussing the
investigation with anyone other than his attorney or
representative, or one of the investigators. Furthermore, the
notice warned that violation of the gag order would result in
charges of insubordination.
the fire department's investigation, Craft was
interrogated twice, first by Chief Turner and later via
polygraph examination. After being given the gag order, Craft
"discussed" the investigation with Ms. Roberts, a
witness in the investigation. The day that Hicks filed the
complaint, Craft went to see Ms. Roberts at a local gym. She
asked why he was not at work, and he explained that he was on
administrative leave because he was under internal affairs
investigation. He further stated that he suspected his
ex-wife or Hicks had instigated the investigation, and that
Ms. Roberts could not say anything or he would be "fired
on the spot." Also, Ms. Roberts stated that, on June 12,
2017, i.e., the day before her interview with the
fire department investigators, Craft called her and asked if
anyone had contacted her, apparently in relation to the Hicks
complaint. Craft, in his testimony, denied making this
inquiry of Ms. Roberts. Finally, Ms. Roberts also stated that
Craft had visited her at her house using the fire truck on
more than just the two occasions which Hicks had reported.
Craft did admit that, on several occasions, he made the
late-night visits to Ms. Roberts at her house while he was on
duty and was using a "full-fledged fire rescue
truck" as his transportation. Craft initially denied
deactivating the GPS at all. Later he admitted to
deactivating it, but claimed it was solely for the purpose of
plugging in his cell phone. Later yet, he admitted that, on
approximately four occasions, he deactivated the fire
truck's GPS with the intent to conceal his whereabouts
from his subordinates at the fire station when he was
visiting Ms. Roberts.
the investigation, the fire chief terminated Craft for: (1)
the late-night visits to Ms. Roberts in the fire truck while
on duty, and, in doing so, attempting to conceal his
whereabouts by turning off the fire truck's GPS; and (2)
"discussing" the investigation with Ms. Roberts, a
witness therein, after being directly ordered in writing not
to "discuss" the investigation with anyone but his
lawyer or representative, or the investigators.
conclusion of the initial hearing before the board, the board
deliberated in "executive session," i.e.,
outside Craft's presence and outside of public access.
The district court remanded, and the board conducted another
hearing and again affirmed Craft's termination, this time
without going into executive session. On re-appeal, the
district court affirmed the board's decision. Thereupon,
Craft filed the instant appeal.
Craft enumerates 12 assignments of error:
1. District Court erred in affirming termination as it was
undisputed the Fire Department failed to provide Craft with
written notice at the commencement of the fire
department's investigator's interrogation in
violation of La. R.S. 33:2181(B)(2).
2. District Court erred in affirming the termination as it
was undisputed the polygrapher [sic] failed to provide Craft
with a written notice at the commencement of his
interrogation of Craft in violation of La. R.S.
3. District Court erred in affirming termination as it was
undisputed Craft was never told that he was under
investigation for telling a friend he was under investigation
in violation of La. R.S. 33:2181(B)(1).
4. District Court erred in affirming the termination as it
was undisputed Craft was never told he was under
investigation for turning off his GPS in violation of La.
5. District Court erred in finding that disconnecting GPS was
a violation of some assumed policy when no such policy was in
evidence and all witnesses testified that no such policy
6. District Court erred in affirming termination for
"insubordination" as it was undisputed Craft never
discussed the facts of the investigation with anyone.
7. District court erred in affirming termination as the Fire
Chief admitted he had no evidence that Craft's stating he
was under investigation affected the operation of the fire
department or the investigation.
8. District Court erred in affirming termination of 17-year
employee for alleged violation of nonexistent policies or
procedures such that any discipline was arbitrary and
capricious and without good faith or cause.
9. District Court erred in affirming termination as Craft had
already been counseled for leaving the station and turning
off the GPS.
10.Alternatively, District Court erred in affirming
termination as Fire Department violated the 60-day rule with
regard to any investigation into Craft being away from the
fire station with the GPS turned off.
11.District Court erred in affirming termination as Fire
Department failed to produce recording of polygraph
interrogation in ...