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In re Appeal of Jackson

Court of Appeals of Louisiana, First Circuit

January 2, 2020

In re Appeal of Emerson Jackson and Travis Wheeler

          Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 659565 Honorable Wilson Fields, Judge Presiding

          Anderson O. Dotson, III Kim L. Brooks Baton Rouge, LA Counsel for Plaintiff/Appellant City of Baton Rouge and Parish of East Baton Rouge

          Brandon Kyle Kershaw Baton Rouge, LA Counsel for Defendants/ Appellees Emerson Jackson and Travis Wheeler

          Floyd J. Falcon, Jr. Counsel for Defendant/Appellant Baton Rouge, LA Municipal Fire and Police Civil Service Board

          BEFORE: WHIPPLE, C.J., GUIDRY, AND CRAIN [1] , JJ.

          WHIPPLE, C.J.

         The City of Baton Rouge and Parish of East Baton Rouge (the City) appeal a judgment of the district court, which reversed the decision of the Municipal Fire and Police Civil Service Board (the Board), upholding the termination of employment of Emerson Jackson (Jackson) and Travis Wheeler (Wheeler) from the Baton Rouge Police Department. After reviewing the facts and applicable law, we convert the appeal to an application for supervisory writs, and grant the writ.[2]

         FACTS AND PROCEDURAL HISTORY

         On March 26, 2014, Jackson and Wheeler, both officers with the Baton Rouge Police Department, received pre-termination letters as a result of an incident that allegedly occurred on February 4, 2014. The letters summarized events that took place that evening, which resulted in a complaint of sexual assault being made against the officers, and triggered an internal investigation.

         The letters provided as follows. At approximately 9:00 p.m., Jackson, Wheeler, and a third officer not a party to this proceeding, entered the BREC Park on Old Hammond Highway where they encountered a young man and woman in a vehicle. The officers asked the occupants of the vehicle to exit, and separated them for questioning. Ultimately, the young man was told to leave, and he did so on foot; the young woman remained with the officers and her interrogation continued. The third officer allegedly threatened the young woman with vehicle impoundment and the arrest of her mother if she did not agree to have sex with him, and under duress she agreed. Jackson and Wheeler were present during this time, and Jackson even positioned himself to see what occurred between the victim and the other officer. The young man returned to the park after receiving an explicit text message from the young woman about what was to transpire, and upon re-entering the park, Jackson and Wheeler stopped him before he made it to the parked vehicles. The young man was told to leave the park or face arrest.

         The letters further specifically noted that none of the officers had their in-car cameras on during the time of the incident. The letters concluded that Jackson and Wheeler had violated certain policies provided in the Department's Policies and Procedures Manual Disciplinary Code, Section XII, "Disciplinary Articles," mainly subsections 0:0, 2:10, 3:17 and 3:23.[3] The letters further stated that Wheeler and Jackson's conduct also constituted reason for which disciplinary action may be taken under the provisions of LSA-R.S. 33:2500(A)(1), (2), and (3). These letters also provided notice for a pre-termination hearing, and indicated the sixty-day deadline for the administrative investigation was April 5, 2014.

         On November 12, 2014, both Jackson and Wheeler received correspondence notifying them that they were being placed on paid administrative leave effective November 13, 2014, until further notice. On November 13, 2014, both Jackson and Wheeler again received pre-termination letters arising out of the February 4, 2014 incident, which were almost identical to the letters received on March 26, 2014, except that the new letters contained one additional fact paragraph which provided:

Further, on November 12, 2014 you were indicted by the Grand Jury of the Parish of East Baton Rouge, State of Louisiana, alleging that you committed the offense of abuse of office, violating Louisiana [R]evised [S]tatutes Title 14, Article 134.3.

         Additionally, these pre-termination letters added another department policy violation found in Subsection 3:22, entitled, "Violation of Laws," which provides "[n]o member will willfully or by neglect or omission violate any Federal, State or City ordinance or statu[t]e." The letters concluded by providing that a pre-termination hearing would be held the following day, November 14, 2014.

         Neither Jackson nor Wheeler appeared at the November 14, 2014 pre-termination hearing, and after reviewing the internal investigations report, Chief of Police Carl Dabadie made the decision to terminate the officers' employment. Jackson and Wheeler received notice of their terminations in correspondence dated November 17, 2014, which was nearly identical to the November 13, 2014 pre-termination letters, except to say that their employment had been terminated for the reasons set forth in the previous letters.

         Both officers appealed their terminations to the Board. In their petitions, Jackson and Wheeler alleged that the decision to terminate their employment was not made in good faith or for cause, and was procedurally defective. They further denied the allegations made against them in their termination letters.

         The Board conducted a full evidentiary hearing on June 29, 2017 and June 30, 2017.[4] After narrowing the scope of the hearing, due to procedural issues, only evidence regarding whether the officers "violated the law" was presented. The Board proceeded to hear testimony from nine witnesses, and had the testimony of another read into the record.

         The Board also received several exhibits into evidence, including the cell phone records of the three officers involved, the victim, and the young man, and an electronic timeline created, in part, from all of these records, for their consideration. Prior to ruling, one board member stated that she believed, based on the information at his disposal, "[the Chief] did act in good faith and for just cause" in terminating Jackson and Wheeler's employment and made a motion to uphold the terminations. A second board member then stated,

I recognized that [counsel for Jackson and Wheeler] indicated in his summation that there's been a profound effect upon these two gentlemen's lives, but things like that happen in the real world. But I do believe something happened in that park and that there's a [cover-up] being held or being perpetrated.
Perhaps there [were] some inconsistencies in the statements of the two young people, but I think there were also inconsistencies in the statements of the other witnesses, especially the two officers, and based on that, I think the Chief did make a decision that he thought was correct based on the information that he had. And for that reason, I will second the motion.

         The Board determined, by a four-to-one vote, to uphold the terminations of Jackson and Wheeler.

         Jackson and Wheeler filed a petition for judicial review of the Board's decision in the Nineteenth Judicial District Court on July 14, 2017. In the appeal, the officers alleged that the Board's decision was not made in good faith and for cause as it was contrary to the evidence produced at the hearing of this matter and the applicable law, urging that they could not be disciplined for criminal charges of which they were acquitted.

         On March 7, 2018, the district court signed a judgment, remanding the matter back to the Board and ordering "the Board to give the accuseds proper notice as it relates to Section 2501, the ten (10) day notice, to let them know the time, place and the date of hearing;" and further ordering "the Board to consider the verdict of the jury that was rendered in the criminal trial, and for the Board to articulate what laws Emerson Jackson or Travis Wheeler violated and the reasons for the Board's decision. If the Board determines that they should uphold the [C]hief s termination, then articulate what laws have been violated."

         Upon receiving the remand order from the district court, the Board discussed the court's instructions and moved to formulate a written response, incorporating those items requested by the court and discussed by the Board. The Board provided to the district court a "notice" asserting that it not only gave Jackson and Wheeler ten days' notice of their hearing, but in fact gave them thirty days advance notice, as it granted a continuance for the hearing on May 30, 2017, and scheduled the hearing for June 29, 2017.

         The Board also issued "findings" pursuant to the second part of the district court's judgment, which included:

The appeal hearing proceeded on the charge of 3:22 Violation of Laws and Violations of [LSA-]R.S. 33:2500(A)(1)(2) and (3)...
Three police units arrived at [the] BREC [P]ark on Old Hammond Highway about the same time[, two of which were] driven by Officers.. .Wheeler and Jackson.
A civilian vehicle was parked at this same BREC [P]ark.
The officers had the male and female occupants of the civilian vehicle exit the vehicle but did not activate their cameras.
The officers obtained identification from the two occupants and ran same and the license plate of the car and found no issue.
All three officers were at the park for approximately 45 minutes with no cameras activated.
...[T]he male occupant of the civilian vehicle, after being identified was ordered from the park and left on foot.
[The third officer] got in the back seat of [the victim's] vehicle with her.
Both Wheeler and Jackson were out of their vehicles and were standing in the vicinity of [the victim's] vehicle while [the third officer] was in the ...

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