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Craft v. Benton Fire District #4

Court of Appeals of Louisiana, Second Circuit

April 10, 2019

JONATHAN CRAFT Plaintiff-Appellant
v.
BENTON FIRE DISTRICT #4 AND BENTON FIRE PROTECTION DISTRICT #4 CIVIL SERVICE BOARD Defendants-Appellees

          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 Appellant

          KEAN MILLER, LLP Michael D. Lowe, Counsel for Appellees

          Before MOORE, STONE, and COX, JJ.

          STONE, J.

         FACTS AND PROCEDURAL HISTORY

         Jonathan 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 the morning.

         Initially, 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 absences.[1]

         Chief 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 lie.[2] 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.

         Three 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.

         Additionally, 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 matter.[3]

         In his 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.[4] 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.

         During the fire department's investigation, Craft was interrogated twice, first by Chief Turner and later via polygraph examination.[5] 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.

         However, 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.

         After 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.

         At the 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.

         ASSIGNMENTS OF ERROR

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. 33:2181(B)(2).
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. R.S. 33:2181(B)(1).
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 existed.
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 ...

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