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Farrelly v. Jefferson Parish East Bank Consolidated Fire District

Court of Appeals of Louisiana, Fifth Circuit

December 4, 2019

JONATHAN FARRELLY
v.
JEFFERSON PARISH EAST BANK CONSOLIDATED FIRE DISTRICT; AND JEFFERSON PARISH FIRE CIVIL SERVICE BOARD

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 775-643, DIVISION "H" HONORABLE GLENN B. ANSARDI, JUDGE PRESIDING.

          COUNSEL FOR PLAINTIFF/APPELLANT, JONATHAN FARRELLY Laura C. Rodrigue Blake J. Arcuri.

          COUNSEL FOR DEFENDANT/APPELLEE, JEFFERSON PARISH EAST BANK CONSOLIDATED SPECIAL FIRE PROTECTION DISTRICT Guice A. Giambrone, III Craig R. Watson Amanda Plaiscia.

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Hans J. Liljeberg.

          FREDERICKA HOMBERG WICKER, JUDGE.

         This case is before us on a Petition for Judicial Review by appellant, firefighter Jonathan Farrelly, of the January 14, 2019 Judgment of the district court affirming the Jefferson Parish Fire Civil Service Board's review of his disciplinary action taken by appellee, the Jefferson Parish East Bank Consolidated Special Fire Protection District. As we find appellee's investigation and interrogation of appellant did not sufficiently comport with the provisions of La. R.S. 33:2181, we find the discipline against appellant to be an absolute nullity. Accordingly, we reverse the decision of the district court affirming the ruling of the Fire Civil Service Board.

         FACTS AND PROCEDURAL HISTORY

         On March 19, 2017, firefighter Jonathan Farrelly was arrested by the Kenner Police Department on charges of theft and assault following a road rage incident which occurred on the shoulder of westbound Interstate 10 near the Veteran's exit. Farrelly was cut off by another driver, and went around and "cut him back off." He was reported to be slamming on his brakes in front of a vehicle, throwing a water bottle, and using profanities. Farrelly admitted to pulling over on the shoulder of the interstate, exiting his vehicle, and engaging in a physical altercation with another driver. He also stated that he threw the other driver's cell phone into a grassy area before he drove away.

         The incident occurred around 8:00 P.M. when Farrelly was driving home after riding in the Irish Italian parade. Farrelly admitted to drinking from 8:00 A.M. to noon earlier that day. At the time of the incident, Farrelly was off duty and not in uniform. The license plate of his car identified him as a "Louisiana Professional Firefighter." The Kenner Police Department notified Fire Department Chief Caraway of the arrest. Joe Greco, the Director of Fire Services, assigned Assistant Fire Director Dave Saunders to confirm Farrelly's arrest.

         When Farrelly reported to work on March 21, 2017, he reported the incident to his captain Billy Zeigler. Captain Frank Tournier took Farrelly to headquarters to meet with District Chief Carl Brondum and Assistant Fire Director Saunders. Farrelly disclosed the details of the incident to the two supervisors after he was told that they were aware of his arrest and asked him what had happened.

         On March 23, 2017, Farrelly was sent a letter informing him that he was under investigation and scheduled for a pre-disciplinary hearing. Attached to the letter was a copy of the "Firefighter Bill of Rights."[1] At the hearing on May 18, 2017 before Director Greco, Farrelly was again provided with the Bill of Rights, and given an opportunity to provide an unsworn statement.[2] Farrelly was notified on May 19, 2017 that he would be suspended for five 12-hour working days for violating the following standards: La. R.S. 33:2560(A)(3)[3], (4)[4], (5)[5], (14)[6], and (15)[7]; District Rules and Regulations Article X, § 2:26[8], 2:27[9], 3:02[10], and 3:05[11]; and District Rules and Regulations Article III § 2:00[12] and 3:00[13]. Farrelly appealed to the Fire Civil Service Board (FCSB) claiming that his original questioning on March 21, 2017 violated the Firefighter Bill of Rights and his actions did not affect the department's efficiency and operation. A hearing before the FCSB, composed of three members, was held on August 8, 2017. The FCSB denied his appeal finding no violation of the Firefighter Bill of Rights and that Farrelly's actions affected the department's operation because of the high standards to which members of the department are held.

         Farrelly appealed the decision, petitioning the district court on September 11, 2017 for judicial review under La. R.S. 33:2561(E). A hearing was held on June 20, 2018. The district court dismissed the appeal in its judgment of January 14, 2019, upholding the ruling of the FCSB, finding good faith in their exercise of discretion affirming the suspension.

         DISCUSSION

         In this appeal, Farrelly alleges two assignments of error: 1) the appellee conducted an interrogation without providing the Firefighter Bill of Rights, and 2) the FCSB's decision was not made in good faith for cause as there was no evidence that Farrelly's conduct impaired the efficient operation of the department.

         The district court's review of an action of the civil service board is "confined to the determination of whether the decision made by the board was made in good faith for cause. . . or to whether a board member should have or failed to recuse himself." La. R.S. 33:2561(E). The appellate court's standard of review of a board's determination is multifaceted. Bolar v. Dep't of Pub. Works-Water, 95-346 (La.App. 5 Cir. 10/31/95), 663 So.2d 876, 879 - 80, writ denied, 95-2809 (La. 1/26/96), 666 So.2d 680. When reviewing the board's findings of fact, the appellate court must apply the manifest error standard. Wyatt v. Harahan Mun. Fire and Police Civil Service Bd., 06-81 (La.App. 5 Cir. 7/25/06), 935 So.2d 849, 853. Therefore, in our review of the FCSB's finding that the Firefighter Bill of Rights was not violated, we must find that the Board's determination was clearly erroneous. However, when judging the Board's exercise of its discretion in determining whether the disciplinary action is based on legal cause, the court should not modify the Board's order unless ...


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