Opinion
No. 2010 CW 1894.
May 6, 2011.
ON SUPERVISORY WRIT OF REVIEW OF THE 22ND JUDICIAL DISTRICT COURT, IN AND FOR THE PARISH OF ST. TAMMANY STATE OF LOUISIANA DISTRICT COURT NO. 2009-13837 THE HONORABLE AUGUST J. HAND, JUDGE PRESIDING.
Paula M. Bruner, Louis L. Robein, Jr., Metairie, La., Counsel for Plaintiff/Appellant, Patrick McGee.
Troy Ingram, Kristin R. Stanley, Slidell, La., Counsel for Defendant/Appellee, St. Tammany Fire Protection District No. 1.
Gilbert R. Buras, Jr., New Orleans, La., Counsel for Defendant/Appellee, St. Tammany Fire Protection District No. 1 Fire Civil Service Board.
BEFORE: CARTER, C.J., GAIDRY AND WELCH, JJ.
NOT DESIGNATED FOR PUBLICATION
Plaintiff/Appellant seeks review of his termination from St. Tammany Fire Protection District No. 1. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
The relevant facts begin with a February 2, 2009, letter to Captain Patrick McGee by his employer, St. Tammany Fire Protection District No. 1 (the District). McGee was placed on administrative leave while the District investigated a coworker's complaint that in 2008 McGee made harassing and ethnically derogatory remarks to him at a fire station. The investigation resulted in a finding that the discussion most likely occurred, and disciplinary action was taken. McGee appealed the District's decision to the St. Tammany Fire Protection District No. 1 Fire Civil Service Board (the Board).
During the April 6, 2009, hearing before the Board, McGee acknowledged that joking, teasing, and horseplay are commonplace at the fire station; however, he specifically denied making racially or ethnically derogatory remarks to the complainant or to anyone. The complainant and several other firefighters testified at the hearing. The complainant testified that McGee made derogatory remarks toward him during an encounter at a fire station in 2008. The complainant explained that because of the negative encounter, he was reluctant to work with McGee. Another firefighter testified that although he had not witnessed the 2008 incident, he had heard McGee on occasion make derogatory remarks toward the complainant "in a joking manner." Several other firefighters testified that they too had heard McGee make ethnic or racial jokes and comments, but these remarks were not specifically directed at the complainant. The Board affirmed the District's action to suspend. At the conclusion of the hearing, Board member Mark Myers commented:
You perjured yourself in front of me today. You lied under oath. That's a serious problem, my friend. That could cause you some deeper ramifications down the road should they choose to pursue it, because somebody was lying and I have determined who it was. It was you. So I uphold. They had good faith, they had just cause, and where they go with this after that testimony, I don't know.
Several days after the April 6 hearing, Fire Chief Larry Hess notified McGee that he was scheduling a pre-disciplinary hearing based on McGee's perjured testimony before the Board in violation of La.Rev.Stat. Ann. § 33:2562. A second letter from Chief Hess notified McGee that the District also was investigating a possible violation of Section 10.2 of the St. Tammany Fire Protection District No. 1 Employee Handbook, which requires an employee to speak the truth. On April 25, 2009, Chief Hess issued his "Finding of Cause for Disciplinary Action" and a termination letter to McGee. McGee was terminated for perjuring himself during the Board hearing, in violation of La.Rev.Stat. Ann. § 33:2562, and for failing to speak the truth, in violation of Section 10.2.
McGee appealed the termination to the Board, and following a hearing, the Board voted 2-0 to uphold McGee's termination. Board member Myers did not vote. McGee appealed the Board's determination to the Twenty-Second Judicial District Court, which affirmed the decision of the Board. This appeal follows with McGee alleging the Board lacks the legislative power to adjudicate and punish perjury.
APPELLATE REVIEW
McGee has improperly taken an appeal from the district court's judgment. Because appellate jurisdiction is vested in the district court pursuant to La.Rev.Stat. Ann. § 33:2561E, this court lacks appellate jurisdiction. Miazza v. City of Mandeville, 10-0304 (La. 5/21/10); 34 So. 3d 849, 849 (per curiam); see La.Const. Ann. arts. V, §§ 10, 16(B). However, a court of appeal may exercise supervisory jurisdiction over all matters arising within its jurisdiction. La.Const. Ann. art. V, § 10(A). Therefore, we convert McGee's appeal to an application for a supervisory writ and grant the request for supervisory review of the merits.
The Louisiana Supreme Court stated in Miazza, 34 So. 3d at 849: Having found the legislature vested appellate jurisdiction in the district court, we conclude the court of appeal lacks appellate jurisdiction over this matter. See Caire v. Stassi, 379 So. 2d 1056 (La. 1980) (holding statute granting appellate jurisdiction to district court divests court of appeal of appellate jurisdiction.)
DISCUSSION
The Louisiana legislature has set forth the grounds for corrective and disciplinary action against fire and police civil service employees for small municipalities, parishes, and fire protection districts in La.Rev.Stat. Ann. § 33:2560. An appointing authority can remove any employee from service or take such disciplinary action as the circumstances warrant for "cause," such as the willful violation of any provision of the Fire and Police Civil Service Law for Small Municipalities and for Parishes and Fire Protection Districts. See La.Rev.Stat. Ann. § 33:2560A(14). An employee also can be disciplined for the willful violation of any rule, regulation, or order or for any other act that is deemed sufficient to show the offender to be an unsuitable or unfit employee. La.Rev.Stat. Ann. § 33:2560A(14), (15).
If an employee feels the disciplinary action or discharge was not for "just cause," he may request a hearing and investigation by the civil service board to determine the reasonableness of the appointing authority's actions. La.Rev.Stat. Ann. § 33:2561A. The civil service board reviews the appointing authority's decision to take disciplinary action to determine whether the decision "in good faith for cause" and, if so, whether the punishment imposed is commensurate with the dereliction. La.Rev.Stat. Ann. § 33:2561C(1); see Bruno v. Jefferson Parish Library Dept., 04-504 (La. App. 5 Cir. 11/30/04), 890 So. 2d 604, 608. Good faith does not exist if the appointing authority acted arbitrarily or capriciously, or as the result of prejudice or political expediency. See Moore v. Ware, 01-3341 (La. 2/25/03), 839 So. 2d 940, 945-46. Arbitrary or capricious means the lack of a rational basis for the action taken. See Moore, 839 So. 2d at 946.
The dismissal of a civil servant for "cause" is synonymous with legal cause. Ruddock v. Jefferson Parish Fire Civil Service Board, 96-831 (La. App. 5 Cir. 1/28/97), 688 So. 2d 112, 114. Legal cause for disciplinary action exists if the facts found by the appointing authority disclose that the conduct of the employee impairs the efficiency of public service. See Ruddock, 688 So. 2d at 114. The burden of proving legal cause rests with the appointing authority, which must demonstrate by a preponderance of the evidence that the conduct occurred and that the conduct did in fact impair the efficiency and orderly operation of public service. Ruddock, 688 So. 2d at 114.
If prejudiced by the decision or action of the board, the employee and the appointing authority may appeal the decision to the court of original and unlimited jurisdiction in civil suits of the parish wherein the board is domiciled. La.Rev.Stat. Ann. § 33:2561E. If the decision of the board was made "in good faith for cause," it cannot be disturbed on judicial review. La.Rev.Stat. Ann. § 33:2561E; see Moore, 839 So. 2d at 945. Reviewing courts should accord deference to a civil service board's factual conclusions and must not overturn them unless they are manifestly erroneous. See Moore, 839 So. 3d at 946. The decision must be affirmed unless the record contains insufficient evidence to support the administrative decision or shows that the decision was clearly wrong. See Adams v. Jefferson Parish Dept. of Community Action Programs, 02-1090 (La. App. 5 Cir. 4/29/03); 845 So. 2d 1147, 1150.
By 2010 La. Acts 454, § 1, La.Rev.Stat. Ann. § 33:2561E was amended to add: "This appeal shall lie direct to the court of original and unlimited jurisdiction in civil suits of the parish wherein the board is domiciled."
Despite McGee's protestations to the contrary, neither the District nor the Board brought criminal charges for perjury. Nor was McGee's dismissal based merely on a "presumption" that he lied. Rather, following a District investigation and a hearing by the Board, McGee was terminated for "knowingly giving false testimony" before the Board during the April 6, 2009, disciplinary hearing and for failing "to speak the truth at all times."
Pursuant to La.Rev.Stat. Ann. §§ 33:2562 and 33:2567, any person who "knowingly gives false testimony" before the Board "shall forfeit his office or position." And, Section 10.2 of the St. Tammany Fire Protection District No. 1 Employee Handbook states: "Employees are required to speak the truth at all times, whether or not under oath, in giving testimony, in connection with official orders, and in connection with official duties." Pursuant to Section 17, a violation of any of the provisions set forth in the handbook can result in "termination of employment." Moreover, a willful violation of Section 10.2 provides "cause" for disciplinary action — including the permanent removal from service — under the statutory scheme. See La.Rev.Stat. Ann. § 33:2560A(14), B.
A thorough review of the record supports the district court's finding that the Board's decision to sustain the termination of McGee for "knowingly giving false testimony" and failing "to speak the truth at all times" was made in good faith for cause; these findings are not arbitrary, capricious, or clearly wrong.
CONCLUSION
For the above stated reasons, we affirm the decision of the Twenty-Second Judicial District Court and St. Tammany Fire Protection District No. 1 Fire Civil Service Board sustaining McGee's termination from St. Tammany Fire Protection District No. 1. Costs of this application for a supervisory writ are assessed to the plaintiff/appellant, Patrick McGee.