Opinion
2022 CA 0137
11-04-2022
Lawrence POTIER v. CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE
Jill L. Craft, W. Brett Conrad, Jr., Kaitlin A. Wall, Baton Rouge, Louisiana, Attorneys for Plaintiff/Appellant Lawrence Potier Anderson O. "Andy" Dotson, III, Parish Attorney, Dawn N. Guillot, Elena P. Branzaru, Assistant Parish Attorneys, Baton Rouge, Louisiana, Attorneys for Defendant/Appellee City of Baton Rouge/Parish of East Baton Rouge Michael M. Remson, Craig J. Sabottke, Courtenay S. Herndon, Baton Rouge, Louisiana, Attorneys for Defendant/Appellee City Parish Personnel Board
Jill L. Craft, W. Brett Conrad, Jr., Kaitlin A. Wall, Baton Rouge, Louisiana, Attorneys for Plaintiff/Appellant Lawrence Potier
Anderson O. "Andy" Dotson, III, Parish Attorney, Dawn N. Guillot, Elena P. Branzaru, Assistant Parish Attorneys, Baton Rouge, Louisiana, Attorneys for Defendant/Appellee City of Baton Rouge/Parish of East Baton Rouge
Michael M. Remson, Craig J. Sabottke, Courtenay S. Herndon, Baton Rouge, Louisiana, Attorneys for Defendant/Appellee City Parish Personnel Board
BEFORE: McDONALD, McCLENDON, AND HOLDRIDGE, JJ.
HOLDRIDGE, J. This is an appeal from a district court judgment affirming the decision of the Personnel Board (Board) for the City of Baton Rouge/Parish of East Baton Rouge (City/Parish) imposing a demotion and suspension on a civil service employee. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
Lawrence Potier was a classified civil service employee who worked for the Division of Human Development and Services (DHDS) for the City/Parish as a DHDS Accounting Section Supervisor in lieu of a Facilities Manager. This action revolves around Mr. Potier's repeated attempts to process a $125,000 emergency purchase request for playground equipment for a Head Start center where the playground equipment was in serious disrepair, despite being denied approval by various parties and being told that he should not pursue the matter. He also submitted an unapproved requisition form as an emergency purchase request.
On August 19, 2020, Vernadine Mabry, the DHDS Director, sent Mr. Potier a pre-disciplinary notice informing him that his conduct prejudiced the efficiency of the service of DHDS. Specifically, she stated that his conduct violated Rule X of the Rules Governing Employees in the Classified Service of the City of Baton Rouge and Parish of East Baton Rouge and Policy Numbers 5, 6, and 10 of the DHDS Policies and Procedures Manual. Ms. Mabry stated that she was considering suspending Mr. Potier without pay and demoting him. On September 2, 2020, she held a pre-disciplinary hearing. On October 8, 2020, Ms. Mabry sent Mr. Potier a disciplinary notice stating that he was suspended for ten days without pay and was demoted to a Fixed Asset Manager, effective October 26, 2020.
Mr. Potier timely appealed his demotion and suspension to the Board. After a hearing held on January 14, 2021, the Board affirmed the demotion but reduced the suspension to five days without pay by a vote of three members to two members. Thereafter, Mr. Potier filed a petition for judicial review in the Nineteenth Judicial District Court. After a hearing on September 13, 2021, the district court signed a judgment on October 5, 2021, denying the petition for judicial review and affirming the Board's decision.
Section 9.05 of the City of Baton Rouge and Parish of East Baton Rouge's Plan of Government states in pertinent part:
No member of the Classified Service shall be suspended for more than thirty days, reduced in rank or pay, or removed, except after notice in writing of the grounds of the proposed disciplinary action and an opportunity to be heard thereon by [the Board] at a hearing which may be public at his option, and at which he may be represented by counsel, to be held not less than ten nor more than sixty days after the service of such notice at a time to be specified therein.
The October 5, 2021 judgment refers to reasons assigned in writing. However, the record contains no written reasons or request for reasons for judgment.
Mr. Potier appeals, asserting that the district court erred in affirming the Board's decision and in failing to find that the Board's decision was arbitrary and capricious and in disregard of the substantial evidence. Mr. Potier urges four assignments of error. In his first assignment of error, he contends that the district court "erred by applying the wrong standard of review as set forth at La. R.S. 49:964 and applicable law, including failing to make its own conclusions and determinations of fact by a preponderance of [the] evidence." In Mr. Potier's second assignment of error, he contends that the district court erred in considering the following:
matters clearly outside the ‘four corners’ of the disciplinary letter, including consideration of a 3-day suspension which was withdrawn by City-Parish, a 2-day suspension with pay which does not constitute civil service discipline and was not appealable by Mr. [Potier], an allegation of and consideration of an illegal ‘temporary’ demotion/transfer to the position of Facilities Manager in April, 2018, an allegation of ‘forgery’ which was withdrawn by [the] City-Parish, various ‘directives’ and unspecified/unsubstantiated allegations of performance issues when none of the referenced items should or could be any basis for enhancement of discipline or discipline in the first instance.
In his third assignment of error, Mr. Potier contends that the district court erred in "permitting consideration of matters, including the aforesaid alleged prior bad acts, and specifically that Mr. Potier hand wrote in his supervisor's name in the block marked ‘print name here’ which were not cited as violative of any City-Parish policy and were not ‘cause’ expressed in writing." In Mr. Potier's fourth assignment of error, he contends that the district court erred "in upholding the manner in which the Board hearing was conducted, including repeated instances where Mr. Potier, in proper person, was threatened, his questioning cut short, and his full and fair ability to defend himself on a ‘level playing field’ was denied."
DISCUSSION
In reviewing the decision of an administrative agency, La. Const. Art. X, § 8 (A) provides that a classified employee who has gained permanent status and who is subject to disciplinary action shall have the right of appeal to the appropriate commission. The burden of proof on appeal, as to the facts, shall be on the appointing authority. La. Const. Art. X, § 8 (A). Pursuant to Section 9.05 of the City of Baton Rouge and Parish of East Baton Rouge's Plan of Government, in pertinent part, "[t]he decision of the Personnel Board either sustaining, reversing or modifying the disciplinary action against a Classified Service member may be appealed by such Classified Service member or the applicable department head to the Nineteenth Judicial District Court within sixty (60) calendar days from the appealing party's receipt of notice of the Personnel Board's decision."
In reviewing the decision of the Board, the district court exercises its exclusive original jurisdiction. Lemoine v. Department of Public Works , 857 So.2d 550, 552 (La.App. 1 Cir. 2003). The district court, however, does not afford a trial de novo and cannot ignore the prior findings and conclusions of an administrative body. Id. Its proper function is to serve as a court of review. Id. The Board's decision may not be overturned absent a finding that it is either not supported by substantial and competent evidence, or that it is arbitrary, capricious and an abuse of discretion. Mack v. City of Baton Rouge, 2006-0140 (La. App. 1 Cir. 4/4/07), 960 So.2d 1008, 1010, writ denied, 2007-0959 (La. 6/22/07), 959 So.2d 508. A presumption of regularity must be accorded to the Board's decision. James v. City of Baton Rouge, 489 So.2d 1308, 1310 (La. App. 1 Cir. 1986). Additionally, as the finder of fact which personally observed the witnesses, the Board's credibility determination is entitled to great weight. Id. This court's review is limited to whether the district court was manifestly erroneous or clearly wrong in concluding that the Board's findings were supported by substantial and competent evidence and that based upon these findings, the decision was not arbitrary and capricious or an abuse of discretion. Lemoine, 857 So.2d at 552.
The rule and policies Mr. Potier was alleged to have violated include Rule X, which provides, in pertinent part:
When any employee in the classified service is unable or unwilling to perform the duties of his position in a satisfactory manner or has committed any act or acts to the prejudice of the service, or has omitted to perform any act or acts that it was his duty to perform ..., it shall be the duty of the appointing authority to take such action as the circumstances may warrant to maintain the standards of effective service.
Mr. Potier's pre-disciplinary and disciplinary notices also referred to Policy Number 6, which states as to correspondence that "Excluding previously approved form memorandums, Program Administrator, or his or her designee must approve all correspondence, before being distributed. DHDS Administration employees must obtain the approval of the DHDS Director." The notices referred to Policy Number 10, which states in pertinent part that "Exceptions to office policies which are not based on Personnel Rules, Mayoral directives, ordinance requirements, State law, or other requirements that fall outside the control of the department may be made only with the approval of one of the following: 1. Program Administrators/Executive Program Administrator 2. DHDS Director." Moreover, the notices stated that Mr. Potier failed "to adhere to established purchasing procedures of which you have knowledge ...."
At the hearing before the Board, the City-Parish presented testimony from numerous witnesses and several documents were submitted as evidence. Mr. Potier also testified on his own behalf and submitted documents as evidence. The parties submitted into evidence a form entitled "EMERGENCY PURCHASE JUSTIFICATION." The form contained spaces to fill in information about the emergency purchase. The information provided included the need for replacement of playground equipment at a playground which was in serious disrepair, such that children could be injured. The form also included language that the request was for $125,000 from an additional six-month closeout period of a grant and that there had been a prior attempt to secure the funds for the playground repair.
Based on the testimony, the emergency purchase request process deviates from the traditional public bid process or a public bid because an emergency, defined as an eminent threat to life or property, is involved. According to the testimony, examples of justified emergency purchase requests included an instance where a tree fell on the community center in the middle of a hurricane and another where a bus driver died and an emergency contract had to be executed to transport children to the Head Start center. When Mr. Potier requested emergency funding for Head Start playground equipment in June of 2020, the Head Start centers had been closed due to the COVID-19 pandemic since March of 2020. There were no children at the centers, and there was no indication of when the centers would be opened or children would return. Mr. Potier had tried to get approval for playground equipment in 2018, but his request was denied because a deadline was missed and there was no funding.
Juliette Semien, the Head Start Program Administrator and Mr. Potier's direct supervisor, testified that on June 18, 2020, Mr. Potier asked her to approve an emergency purchase request for playground equipment. Ms. Semien testified that she told Mr. Potier that the request could not be processed and not to pursue the matter any further. Rhonda McFarland, the Head Start Assistant Program Administrator, testified that she had informed Mr. Potier that he needed to get Ms. Semien's approval, and she was present when Ms. Semien denied his request.
Lindsey Robinson, the Accounting Associate II who put the prerequisites for all Head Start orders into the MUNIS system, testified that within a two-week period before June 26, 2020, Mr. Potier asked her several times to process an emergency purchase request for playground equipment. Ms. Robinson stated that she told Mr. Potier "the first couple of times that we weren't doing it at this time. And then the last couple of times, I just told him directly we're not doing it, and don't come back to my desk."
Danyell Johnson, the Head Start Accountant, testified that on June 19, 2020, Mr. Potier gave her a playground equipment emergency purchase request form. According to Ms. Johnson, Mr. Potier told her to process the request as soon as possible as the Purchasing Department was working with him on it. She testified that Ms. Mabry's name was printed in red ink on the "Submitted by" line on the request form. Ms. Johnson testified that Mr. Potier admitted to her that he had printed Ms. Mabry's name on the form. In her June 26, 2020 letter to Ms. Semien, Ms. Johnson wrote that she told Mr. Potier "no to the quote" and that the request would not be processed. She wrote that Mr. Potier came back two more times that day to ask about the same quote, but she kept telling him no.
Arvin Jones, Senior Buyer for the Purchasing Department, testified that Mr. Potier contacted him about the emergency playground equipment purchase request. According to Mr. Jones, he informed Mr. Potier that he did not believe the request fit the public bid law definition of emergency, and he sent Mr. Potier the statutory definition of an emergency. Mr. Jones stated that he also told Mr. Potier that a previous playground equipment bid could not be used to purchase the equipment. On June 18, 2020, after Ms. Semien had declined the request, Mr. Potier emailed Mr. Jones, stating that the Emergency Purchase Justification form was complete and requesting him to review it and the supporting documents. Mr. Jones replied by email on June 19, 2020, that the justification was incomplete and that the form had to be signed and dated by Mr. Potier's department head and forwarded to the director, Kris Goranson, for approval.
Mr. Goranson, the Purchasing Director for the City/Parish, testified that he had been meeting with Ms. Mabry and other employees regarding the appropriate spending of the available Head Start emergency funds. Mr. Goranson testified that he became "very frustrated" when he received the emergency purchase request form from Mr. Potier because those involved in the meetings had not discussed purchasing playground equipment in the meetings. They had discussed purchasing technology platforms for the children since the children weren't in the classroom. They had also discussed purchasing kitchen equipment because Head Start was still providing food to the children even though they were not at the centers. Mr. Goranson testified that he thought Ms. Mabry approved the emergency playground equipment purchase because her name was written on the "Submitted by" line on the form. However, Mr. Goranson testified that he learned that Ms. Mabry had not approved the request and was unaware of it. Mr. Goranson explained that Mr. Potier's emergency purchase request was improper partly because the purchase did not meet the criteria for the expenditure of emergency funds, especially when the children were not at the Head Start centers. He also testified that Mr. Potier's persistence in pursuing the request after being instructed not to by his supervisor wasted time and resources.
Dr. Pamela Ravare-Jones, the Assistant Chief Administrative Officer for the Mayor's Office and Ms. Mabry's supervisor, testified that she was completely surprised when she received the playground equipment emergency purchase request from Mr. Goranson. Dr. Ravare-Jones testified that she contacted Ms. Mabry about Mr. Potier's attempts to obtain approval for the emergency purchase on June 25, 2020.
Ms. Mabry testified that she began investigating the emergency purchase request on June 26, 2020. According to Ms. Mabry, the information she collected from Ms. Semien, Ms. Johnson, Ms. Robinson, and Mr. Jones led her to conclude that Mr. Potier had been continually insubordinate. Ms. Mabry testified that Mr. Potier's conduct was particularly concerning because he was not following the purchasing procedures that he knew applied since he had worked in the accounting department for several years. She also stated that Mr. Potier had been responsible for purchasing playground equipment in 2018 and "had not stayed on top of it," causing the request to be canceled. Ms. Mabry concluded that a demotion and suspension were appropriate discipline because Mr. Potier was in a high level supervisory position where the directives of the department's leadership must be followed for the efficiency of the DHDS. Ms. Mabry testified that Mr. Potier's discipline was based on his persistence after being told "no" repeatedly and that she was not claiming he had forged her signature.
Mr. Potier testified on his own behalf at the hearing before the Board, He testified that he did not put Ms. Mabry's name on the emergency purchase justification form. He also testified that before June of 2020, he had a good relationship with those in the DHDS, but "things went bad" when he asked about receiving more pay as a facilities manager.
In Mr. Potier's first assignment of error, he contends that the district court applied the wrong standard of review, including failing to make its own conclusions and determinations of fact by a preponderance of the evidence, citing La. R.S. 49:964. Mr. Potier contends that the district court erred in adopting the proposed findings of fact and conclusions of law submitted by the City-Parish. However, the district court judgment states that the ruling is based "[u]pon consideration of the record of these proceedings, arguments of counsel, the law, proposed findings of fact and law submitted by the parties, and for reasons assigned in writing." As earlier noted, however, the record does not contain written reasons for judgment.
Louisiana Revised Statutes 49:964(G) setting forth the standard of review under the Administrative Procedures Act (APA) states, in pertinent part:
The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
...
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency's determination of credibility issues.
Mr. Potier offers no authority to support his contention that La. R.S. 49:964 applies as the standard of review in this case. The Louisiana Administrative Procedure Act (APA), La. R.S. 49:950 et seq. , does not apply to an agency or department of a political subdivision, such as the City/Parish. City of Baton Rouge v. Bethley, 2009-1840 (La. App. 1 Cir. 10/29/10), 68 So.3d 535, 539, writ denied, 2011-1884 (La. 11/4/11), 75 So.3d 927. The clear language of the APA, of which La. R.S. 49:964 is a part, excludes the Board from its coverage. See La. R.S. 49:951(3) ; Cotrell v. Division of Housing and Neighborhood Development, 2002-0816 (La. App. 4 Cir. 10/16/02), 830 So.2d 1083, 1084 ; George v. Dep't of Fire, 637 So.2d 1097, 1103 (La. App. 4 Cir. 1994). Further, this court has routinely applied a jurisprudential standard of review to similar Board decisions, rather than that found in La. R.S. 49:964. See Mack, 960 So.2d at 1010 ; Jarrett v. Capital Area Legal Services Corp., Inc. , 99-0193 (La. App. 1 Cir. 3/31/00), 763 So.2d 698, 701 ; James, 489 So.2d at 1310 ; Lemoine, 857 So.2d at 552 ; Tanner v. City of Baton Rouge, 422 So.2d 1263, 1266 (La. App. 1 Cir. 1982), writ denied, 429 So.2d 128 (La. 1983). Accordingly, we find this assignment of error meritless.
The APA defines "agency" as "each state board, commission, department, agency, officer, or other entity ... except the legislature or any branch, committee, or officer thereof, any political subdivision, as defined in Article VI, Section 44 of the Louisiana Constitution, and any board, commission, department, agency, officer, or other entity thereof, and the courts." La. R.S. 49:951(3) (Emphasis added.). "Political subdivision" is defined as "a parish, municipality, and any other unit of local government, including a school board and a special district, authorized by law to perform governmental functions." La. Const. art. VI, § 44 (2).
In Mr. Potier's second assignment of error, he contends that the district court erred in considering matters outside of the disciplinary letter, mainly contending that the Board considered an allegation of forgery. Mr. Potier contends in his third assignment of error that the Board considered matters that were not "cause expressed in writing" because it considered Mr. Potier's printing his supervisor's name on the emergency purchase justification form and a proposed demotion that was withdrawn. These assignments of error are without merit. The disciplinary letter and the testimony at the hearing did not state that Mr. Potier forged Ms. Mabrey's signature. The basis of the charge of insubordination was that Mr. Potier continued to pursue the emergency purchase request after he was denied approval. As part of his attempts to get the emergency purchase approved, he submitted an Emergency Purchase Request Form on which he admitted to Ms. Johnson that he had printed Ms. Mabrey's name on the "Submitted by" line of the form.
Moreover, there is no indication that the Board considered a proposed demotion that was withdrawn. Evidence concerning the demotion that was withdrawn was submitted by Mr. Potier, not by the City-Parish. As for the Board's consideration of what Mr. Potier refers to as his "illegal ‘temporary’ demotion/transfer," the October 8, 2020 disciplinary notice stated that he was serving as an Accounting Section Supervisor in lieu of a Facilities Manager temporarily due to prior deficiencies in his work product. Ms. Mabry did testify that she had been having issues with Mr. Potier in his position and that she created the temporary position for him an accounting section supervisor in lieu of a facilities manager so he could keep working. She testified that she relieved him of supervising the fiscal unit so that he could learn the MUNIS system the City/Parish had adopted, but he continued to struggle and "made some egregious mistakes." According to Ms. Mabry, she moved Mr. Potier because she "just felt that he wasn't a good fit for the position he was in." Mr. Potier did not object to this testimony at the hearing and he included evidence of these issues to show a pattern of being written up for problems on the job after he inquired about a pay increase.
In Mr. Potier's fourth assignment of error, he contends that the district court erred in upholding the manner in which the Board hearing was conducted. We have carefully and thoroughly reviewed the record in this case and have found no abuse of discretion in the manner in which the hearing was conducted. The referee informed the parties at the beginning of the hearing that each side had an hour and a half to present its case. During the hearing, Mr. Potier's son, who was helping him, objected to the introduction of a statement by Ms. Johnson. He wanted her to appear at the hearing by video. At that point, the referee did comment that he "might consider" taking the long cross-examinations of the City-Parish witnesses out of Mr. Potier's allotted time, but there was no indication that the referee did so. During the hearing, the referee accommodated Mr. Potier and his son by allowing them to alternate who questioned the different witnesses over the City-Parish's objection. The referee also allowed Mr. Potier to resume his testimony after he had rested his case. When Mr. Potier was trying to submit evidence over the City-Parish's objection, the referee allowed the evidence in, stating, "I don't want ... somebody that's going to review this say that we didn't let you get your evidence in, so ... we're going to bend over backwards for you and let you get your evidence in ...." This assignment of error is without merit.
After a thorough review of the law and evidence in this case, we conclude that the district court did not err in upholding the Board's decision. A review of the law and evidence shows that the Board's decision was supported by substantial and competent evidence, its decision was not arbitrary or capricious, and it did not abuse its discretion. While Mr. Potier's desire to replace the damaged playground equipment for the Head Start children was laudable, he was required to follow proper procedure to obtain the necessary funds, particularly regarding limited emergency funds. Substantial testimony and evidence supported the City/Parish's allegation that Mr. Potier continued to pursue the funding for the playground equipment even after approval for the purchase was denied and after he was told not to pursue it further. The evidence showed that Mr. Potier went as far as submitting an unapproved requisition upon which he printed Ms. Mabry's name on the "submitted by" line, without her knowledge. Mr. Potier's insubordination impaired the efficiency of the service because other employees’ time and resources were impacted by this unauthorized request. Mr. Potier contends that the discipline imposed was excessive, although he did not specifically raise this as an assignment of error. We do not find that the Board abused its discretion in imposing the demotion and suspension. Because Mr. Potier was in a supervisory position and because he knew the proper procedures for requesting emergency funding, his failure to abide by those procedures was concerning enough that the discipline of a demotion and a five-day suspension without pay was not an abuse of discretion, nor was it arbitrary and capricious. CONCLUSION
For the reasons assigned, the October 5, 2021 judgment of the district court affirming the demotion and five-day suspension of Lawrence Potier by the City of Baton Rouge/Parish of Baton Rouge is affirmed. Costs are assessed against Mr. Lawrence Potier.