Opinion
NUMBER 2015 CA 0020
09-18-2015
CHRIS HAGAN v. CITY OF GONZALES AND GONZALES DEPARTMENT OF POLICE
J. Christopher Alexander, Sr. Baton Rouge, LA Attorney for Appellant Plaintiff - Chris Hagan Miranda Mayer Mumphrey Gonzales, LA Attorney for Appellees Defendants - City of Gonzales and Gonzales Department of Police
NOT DESIGNATED FOR PUBLICATION
Appealed from the 23rd Judicial District Court In and for the Parish of Ascension, Louisiana
Trial Court Number 109,273
Honorable Thomas Kliebert, Jr., Judge J. Christopher Alexander, Sr.
Baton Rouge, LA
Attorney for Appellant
Plaintiff - Chris Hagan
Miranda Mayer Mumphrey
Gonzales, LA
Attorney for Appellees
Defendants - City of Gonzales
and Gonzales Department of
Police
BEFORE: WHIPPLE, C.J., WELCH, AND DRAKE, JJ. WELCH, J.
Chris Hagan appeals a judgment of the district court affirming the decision of the Gonzales Municipal Fire and Police Civil Service Board (the Board) to uphold Mr. Hagan's disciplinary termination from the City of Gonzales Police Department. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Mr. Hagan was employed as a police officer by the City of Gonzales Police Department and was a classified civil servant. On June 29, 2013, Mr. Hagan was on uniform patrol and received information from central dispatch that Beverly Tabb, who was wanted for questioning in connection with a murder investigation, was at the Budget Inn in Gonzales, Louisiana. After locating Ms. Tabb in a hotel room, he placed her in handcuffs. Officer John McCoy subsequently arrived on the scene, and Mr. Hagan then escorted Ms. Tabb to the police unit and told her to get into the rear passenger seat of the vehicle. He then proceeded to transport Ms. Tabb to the Ascension Parish prison in Donaldsonville, Louisiana. Less than a week or two after being brought to the parish prison, Ms. Tabb was interviewed by Ms. Robin O'Bannon, an assistant district attorney for Ascension Parish, in connection with a murder investigation. During this interview, Ms. Tabb disclosed to Ms. O'Bannon the allegations forming the basis for Mr. Hagan's disciplinary termination. Essentially, Ms. Tabb claimed that Mr. Hagan made inappropriate statements to her and touched her inappropriately during the arrest. Ms. O'Bannon then relayed this information to Sergeant Steven Nethken (an officer with the Gonzales Police Department), and Sergeant Nethken then contacted Police Chief Sherman D. Jackson about the allegations.
By letter dated July 13, 2013, Mr. Hagan was notified by Chief Jackson that he was the subject of an administrative investigation for possibly violating Gonzales Police Department Standard Operating Policies and Civil Service Laws. Specifically, it was alleged that Mr. Hagan made "inappropriate statements to [a] female that was under arrest by [him] on 6/[29]/13," that he "tried to exchange freedom for sex while [that] subject was in [his] custody," and that he was "involved with the 'Back Page' prostitution ring."
Although the letter notifying Mr. Hagan of the administrative investigation referenced an incident occurring on "6/28/13," the record reveals that the stated date was a typographical error and that the incident at issue occurred on 6/29/13.
Chief Jackson ordered Assistant Chief Leland Sykes to conduct an administrative investigation. During the course of the investigation, Assistant Chief Sykes interviewed Mr. Hagan, Ms. Tabb, and Officer McCoy. Thereafter, Chief Jackson ordered Mr. Hagan to submit to a polygraph test, which was conducted on August 29, 2013, by Corporal Calvin Bowden of the Livingston Parish Sheriff's Office. Notably, Ms. Tabb voluntarily submitted to a polygraph test, which was conducted the day before Mr. Hagan's polygraph test.
By letter dated September 6, 2013, Assistant Chief Sykes ordered Mr. Hagan to appear at a pre-disciplinary hearing on September 10, 2013, in reference to allegations that when arresting Ms. Tabb, he "rubbed her [between the legs] while she was handcuffed, in the back of [his] police unit" without her consent and that while he was transporting Ms. Tabb to the Ascension Parish Prison, he "solicited Ms. Tabb to perform sexual favors in exchange for her freedom," and that this "allegedly occurred while in Gonzales, and again later in the transport." These allegations had formed the underlying basis for Chief Jackson's order for Mr. Hagan to undergo a polygraph examination, and according to Assistant Chief Sykes's September 6, 2013 letter, "[d]eception was detected in [his] answers" to those allegations during the polygraph examination.
After the administrative investigation was concluded, Chief Jackson determined that Mr. Hagan broke several Gonzales Police Department Standard Operating Procedures and removed him from service with the Gonzales Police Department. Mr. Hagan appealed the decision to the Board, and a hearing was held on January 30, 2014. At the hearing, eight witnesses testified, including Mr. Hagan, Ms. Tabb, Officer McCoy, Chief Jackson, Corporal Bowden, and Assistant Chief Sykes. In addition, the results of the polygraph examinations were offered into evidence. After the hearing, based on the evidence presented, the Board voted to uphold Chief Jackson's decision to terminate Mr. Hagan.
The Standard Operating Procedures ("SOP") that Mr. Hagan was found to have violated were SOP 112 (providing that members shall conduct themselves on and off duty in such a manner as to reflect most favorably on the department and charging members with a duty to conduct themselves in accordance with the code of ethics and policy statements of the police chief); SOP 113 (providing that members shall obey all criminal laws of the United States and any state or local jurisdiction in which they are present); SOP 146 (providing that members shall truthfully answer all questions relating to the scope of their employment and operations within the department and cooperate fully in any internal investigation); and SOP 170 (providing that members shall not engage in any illegal, immoral or indecent conduct nor in any normally legitimate act which, when performed in view of the public, would tend to reflect discredit upon the police department).
Hagan then appealed the Board's decision to the district court, arguing that the Board erroneously found that the appellant violated the provisions of the Gonzales Police Department Standard Operating Procedures and that the decision of the Board was contrary to the weight of the evidence. By judgment signed on October 16, 2014, the district court upheld the decision of the Board by concluding that there was no evidence to support Mr. Hagan's claim that the decision of the Board was in bad faith and without just cause and that the record did not indicate that the Board's factual findings were manifestly erroneous.
Mr. Hagan has appealed the October 16, 2014 judgment of the district court to this Court, arguing that the district court erred in determining that there was no evidence to support Mr. Hagan's claim that the Board's decision (to ratify the police chief's decision to take disciplinary action against him) was in bad faith and without just cause. The crux of Mr. Hagan's argument on appeal is that the testimony of Ms. Tabb lacked credibility and should not have been given any weight by the Board because she was a drug addict and a prostitute and that, in the absence of other evidence supporting Ms. Tabb's allegations, the results of his and Ms. Tabb's polygraph examinations should not have been considered by the Board.
LAW AND DISCUSSION
Louisiana Revised Statute 33:2500 governs corrective and disciplinary actions for maintaining standards of service for fire and police departments in municipalities. The pertinent part of that statute provides that the appointing authority can remove any employee from service or take such disciplinary action as is warranted by the circumstances, for the commission or omission of any act to the prejudice of the departmental service or contrary to the public interest or policy; for conduct of a discourteous or wantonly offensive nature toward the public, any municipal officer or employee, and any dishonest, disgraceful, or immoral conduct; for falsely making a statement of any material fact in his application for admission to any test for securing eligibility or appointment to any position in the classified service, or, practicing or attempting to practice fraud or deception in any test; and for any other act or failure to act which the board deems sufficient to show the offender to be an unsuitable or unfit person to be employed in the respective service. See La. R.S. 33:2500 (A)(3), (5), (9), and (15).
Fire and police civil service laws governing municipalities between 13,000 and 250,000 persons are found in La. R.S. 33:2471 through 2508. The civil service laws applicable to small municipalities and for parishes and fire protection districts with persons 7,000 or more but less than 13,000 persons are found in La. R.S. 33:2531 through 2568. In both sets of statutes, the provisions pertaining to the corrective and disciplinary action for maintaining standards of service, the appeal of such actions to the civil service board, and the right of appeal to the appropriate district court, are virtually identical. Therefore, the jurisprudence involving disciplinary actions imposed under La. R.S. 33:2560 and reviewed under La. R.S. 33:2561 is applicable to cases involving disciplinary actions imposed under La. R.S. 33:2500 and reviewed under La. R.S. 33:2501. See King v. Tangipahoa Fire Protection Dist. No. 1, 2012-1130, p.3 n.6 (La. App. 1st Cir. 7/1/13)(unpublished). --------
Any regular employee in the classified service who feels he has been subjected to corrective or disciplinary action without just cause may demand a hearing and investigation by the Board to determine the reasonableness of the action. See La. R.S. 33:2501(A); Landry v. Baton Rouge Police Dept., 2008-2289 (La. App. 1st Cir. 5/8/09), 17 So.3d 991, 994. At such a hearing, the appointing authority bears the burden of proving by a preponderance of the evidence that a legal cause exists for the disciplinary action imposed. Ruddock v. Jefferson Parish Fire Civil Serv. Bd., 96-0831 (La. App. 5th Cir. 1/28/97), 688 So.2d 112, 114. If the evidence is conclusive, the Board may affirm the appointing authority's action. La. R.S. 33:2501(C)(1); Landry, 17 So.3d at 994. If the Board finds that the action was not taken in good faith for cause, the Board must order the immediate reinstatement or reemployment of such person. La. R.S. 33:2501(C)(1); Landry, 17 So.3d at 994-995.
If the decision of the Board is prejudicial to the employee, the employee may appeal the decision to the court of original and unlimited jurisdiction in civil suits of the parish where the Board is domiciled. See La. R.S. 33:2501(E)(1); Landry, 17 So.3d at 995. The district court shall hear the matter in a summary manner, and its review of the Board's action is limited to a finding of whether the Board's decision was made "in good faith for cause." La. R.S. 33:2501(E)(2) and (3); Landry, 17 So.3d at 995. If based on good faith and statutory cause, a decision of the Board cannot be disturbed on judicial review. Id. Good faith does not occur if the appointing authority acted arbitrarily or capriciously or as a result of prejudice or political expediency. Id. Arbitrary or capricious means the lack of a rational basis for the action taken. Id. The district and appellate courts should accord deference to a civil service board's factual conclusions and must not overturn them unless they are manifestly erroneous. Id. Thus, the decision of the Board may not be overturned absent a finding that it is either not supported by substantial and competent evidence or it is arbitrary, capricious, and an abuse of discretion. James v. City of Baton Rouge Through Dept. of Public Works, 489 So.2d 1308, 1310 (La. App. 1st Cir. 1986). Additionally, as the finder of fact which personally observed the witnesses, the Board's credibility determination is entitled to great weight. Id.
As noted above, on appeal Mr. Hagan contends that Ms. Tabb's testimony was not credible and should not have been given any weight by the Board. At the hearing before the Board, Ms. Tabb testified that after she had been handcuffed and as Mr. Hagan was putting her in the back of the police car, he told her "You take care of me; I'll take care of you," and as he went "to do [her] seatbelt he then ... slid his hand between [her] legs." She further testified that as she was being transported to the Ascension Parish prison, Mr. Hagan pulled over on the side of the road and again told Ms. Tabb "[i]f you help me, I'll help you. I'll be there for you. I'll help you." Ms. Tabb explained that she interpreted Mr. Hagan's comments to her "sexually" not only because of his tone, but because "the first time it was said ... he was groping [me between the legs]." Ms. Tabb openly admitted that she was a drug user and a prostitute; however, she testified that on the day she was arrested by Mr. Hagan, she had not taken any drugs and that she had not taken any drugs on the days that she was interviewed by Ms. O'Bannon and Assistant Chief Sykes.
Officer McCoy, who assisted Mr. Hagan at the scene of the arrest, was unable to dispute or confirm Ms. Tabb's allegations against Mr. Hagan because he was not in the immediate vicinity of the incident. Specifically, Officer McCoy testified that when Mr. Hagan was putting Ms. Tabb in the vehicle, he "glanced and [Mr. Hagan] was putting her in the vehicle and [he] went back to what [he] was doing." He further testified that he did not see whether Mr. Hagan placed a seat belt on Ms. Tabb because he was "more focused on the other people in the [hotel] room."
Corporal Bowden, the licensed polygraph examiner who conducted the polygraph examination of Mr. Hagan and Ms. Tabb, testified regarding his training and experience, his testing methods and the questions asked on the tests. He testified that he runs tests that have been validated by the American Polygraph Association, and according to studies on those validated tests, it has been determined that they are 92-95% accurate and that the margin of error is based on the examiner's lack of ability to monitor and identify possible counter measures, not on the test itself.
At the polygraph examination, Mr. Hagan was asked whether he touched Ms. Tabb between her legs and whether he touched Ms. Tabb between her legs while she was handcuffed. Mr. Hagan responded negatively to both questions, and an independent evaluation of the data's reliability by Corporal Bowden supported a finding that deception was detected. During Ms. Tabb's polygraph examination, Ms. Tabb was asked whether Mr. Hagan touched her between the legs and whether he touched her between her legs while she was handcuffed. Ms. Tabb responded affirmatively to both questions, and an independent evaluation of the data's reliability by Corporal Bowden supported a finding that no detection was detected.
During Mr. Hagan's testimony before the Board, he denied all of the allegations made against him by Ms. Tabb. However during the course of this investigation, Mr. Hagan admitted to Assistant Chief Sykes that he had lied to his previous employer (the Ascension Parish Sheriff's Office) about an inappropriate sexual relationship that he had with a female whom he had previously investigated for theft and that he was reprimanded by his employer for that lie.
Assistant Chief Sykes testified that he found Ms. Tabb's allegations to be credible. He noted that the complaint against Mr. Hagan was not made by Ms. Tabb, but rather her allegations "came out in an inadvertent interview ... on a completely different subject" with the district attorney's office. Thus, her allegations were not the result of an individual seeking revenge against a police officer for an arrest or other vendetta. Assistant Chief Sykes further noted that when the incident occurred, Ms. Tabb was not being arrested for a criminal violation, but was being put in jail so that she would be available to testify in a murder trial. In addition, Assistant Chief Sykes noted that Ms. Tabb's story never deviated from the first time she told it through her testimony before the Board. He also explained that when he worked for the Drug Enforcement Administration ("DEA"), he dealt with addicts and confidential informants, and based on his experience and training, he found Ms. Tabb to be a credible witness.
Assistant Chief Sykes further testified that he conducted his investigation pursuant to all of the standard procedures of investigations for the department, that Mr. Hagan was given an opportunity to refute the allegations at a pre-disciplinary hearing, and that Mr. Hagan did not present him with any contradictory lie detection or voice test results prior to his termination. Assistant Chief Sykes concluded his testimony by explaining that he found Ms. Tabb to be more credible than Mr. Hagan because of "[t]he totality of the witnesses, the candor with her interviews, the fact that she did not come forward with this allegation ... to the police department and try to file a complaint on [Mr.] Hagan out of some rage for being arrested," as well as the result of the polygraph test.
Chief Jackson confirmed that the investigation conducted by Assistant Chief Sykes followed all of the standard procedures and that at the conclusion of the investigation, Assistant Chief Sykes submitted a written report with his findings. Chief Jackson testified that he made his decision to terminate Mr. Hagan based on Assistant Chief Sykes's reported findings and a review of Mr. Hagan's personnel file and the transcripts of the interviews taken during the investigation. Chief Jackson opined that "Ms. Tabb didn't have a reason to lie or to even come forth with [the] information," whereas "Mr. Hagan ... admitted to lying about a situation like this before" to a previous employer. Further, Chief Jackson noted that "Ms. Tabb actually passed the polygraph and that [deception] was detected with [Mr.] Hagan." Lastly, Chief Jackson testified that he "made [his] choice, in good faith."
After considering all of the facts and testimony and evidence, the Board voted unanimously to "uphold the validity and good faith of the decision of Chief Jackson in the termination of Mr. Hagan ...."
From our review of the record, it is apparent that Chief's Jackson's decision to terminate Mr. Hagan was not based on one factor, but rather on the credibility of the witnesses and the totality of the evidence discovered during the investigation. The Board then independently reviewed and assessed Chief Jackson's termination of Mr. Hagan and found that his decision was in good faith for cause. We recognize that the decision by the Board herein to uphold Chief Jackson's decision depended almost entirely on conflicting testimony of the proverbial "he said, she said" kind. Certainly, the Board (and Chief Jackson) could have rejected Ms. Tabb's version of what transpired during her arrest; however, they could have also rejected Mr. Hagan's version, particularly in light of his history with his previous employer. As previously set forth, the Board's credibility determinations are entitled to great weight; the Board, in accordance with Chief Jackson's testimony, found Ms. Tabb credible. Chief Jackson's testimony established that he found Ms. Tabb more credible than Mr. Hagan, and he provided very specific reasons for doing so, which are supported by the record. Therefore, giving the appropriate weight to Ms. Tabb's testimony, as the Board did, we cannot say that Chief Jackson's decision to terminate Mr. Hagan's employment was arbitrary and capricious, or characterized by an abuse of discretion. Thus, the record supports the district court's determination that the Board's decision (and Chief Jackson's decision) was in good faith for cause, and the Board's underlying factual findings and credibility determinations were not clearly wrong or manifestly erroneous.
Insofar as Mr. Hagan contends that the results of his and Ms. Tabb's polygraph examinations should not have been considered by the Board, we recognize that it is well settled that the results of a properly administered polygraph are admissible at an administrative hearing before a civil service board, which is held to review whether the appointing authority had good or lawful cause for taking disciplinary action against a police officer and that it is within the province of the Board to determine the weight to be given to this evidence. Evans v. DeRidder Mun. Fire, 2001-2466 (La. 4/3/02), 815 So.2d 61, 66-69, cert. denied, 537 U.S. 1108, 123 S.Ct. 884, 154 L.Ed 2d 779 (2003). After hearing testimony from Corporal Bowden as to his qualifications, his training and experience, and his testing methods, the Board determined that the results of the polygraph examination were admissible. In addition, the Board had other evidence supporting its decision to uphold Chief Jackson's termination of Mr. Hagan., i.e., the testimony of Ms. Tabb, which it found to be credible. Therefore, having reviewed the Board's ruling under the manifest error standard of review, we find no error in the Board's decision to admit the polygraph results in order to determine whether Chief Jackson terminated Mr. Hagan in good faith for cause. See Evans, 815 So.2d at 68-69.
CONCLUSION
For all of the above and foregoing reasons, the October 16, 2014 judgment of the district court is affirmed. All costs of this appeal are assessed to the plaintiff/appellant, Chris Hagan.
AFFIRMED.