Jonathan Farrelly Versus Jefferson Parish East Bank Consolidated Fire District; And Jefferson Parish Fire Civil Service Board ( 2019 )

JONATHAN FARRELLY NO. 19-CA-216
VERSUS FIFTH CIRCUIT
JEFFERSON PARISH EAST BANK COURT OF APPEAL
CONSOLIDATED FIRE DISTRICT; AND
JEFFERSON PARISH FIRE CIVIL SERVICE STATE OF LOUISIANA
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
December 04, 2019
FREDERICKA HOMBERG WICKER
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Hans J. Liljeberg
REVERSED
FHW
JGG
HJL
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
WICKER, J.
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
1
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, § 2:268, 2:279, 3:0210, and 3:0511;
and District Rules and Regulations Article III § 2:0012 and 3:0013. 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.
1
The Firefighter Bill of Rights, set out in La. R.S. § 33:2181, requires the application of certain minimum standards
“whenever a fire employee is under investigation.”
2
The predisciplinary hearing was recorded but a transcript was not included in the record nor provided to the Fire
Civil Service Board for their review.
3
La. R.S. § 33:2560: Corrective and disciplinary action for maintaining standards of service allows the appointing
authority to take disciplinary actions for: (A)(3) The commission or commission of any act to the prejudice of the
departmental service or contrary to the public interest or policy
4
(4) Insubordination
5
(5)Conduct of a discourteous or wantonly offensive nature toward the public . . .and any dishonest, disgraceful or
immoral conduct
6
(14) The willful violation of any provision of this Part or any rule, regulation or order adopted under its authority,
7
(15) 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 fire and police service.
8
Article X, § 2:26 Violations by any employee of these rules of conduct and duty may be considered sufficient
cause for disciplinary action
9
§2:27 Personnel shall be governed by the ordinary and reasonable rules of good conduct and behavior and shall not
commit, on or off duty, any act tending to bring reproach or discredit to the Department. Profane or indecent
language is strictly prohibited at all times.
10
§3:02 Personnel shall serve the public by courteous direction, counsel and in other ways that do not interfere with
the discharge of their official responsibilities. They shall respect the rights of individuals, perform their services
with honesty, zeal and courage and strive to win the respect of all law abiding citizens by the impartial discharge of
their official duties.
11
§3:05 Fire Department personnel shall not holler at, whistle to or harass any individual passing on the street or in
any public place.
12
Article III § 2:00 All employees are to be knowledgeable of the Fire Department Rules and Regulations.
13
§3:00 As a condition of employment, all members shall be subject to disciplinary action from the Department for
violation of the Fire Department Personnel Rules, Fire Civil Service Rules, the Fire Department Rules and
Regulations, and the Fire Department Numbered Policies.
2
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 it is arbitrary, capricious, or
characterized by abuse of discretion. Bolar, 663 So.2d at 880. Thus our review of
the FCSB’s decision on whether Farrelly’s discipline was justified is limited to
whether the decision was arbitrary, capricious, or an abuse of discretion.
FIREFIGHTER BILL OF RIGHTS
In his first assignment of error, Farrelly alleges that the FCSB erred in
finding that the Department complied with the Firefighter Bill of Rights during his
questioning on March 21, 2017. The Firefighter Bill of Rights requires the
department to notify an employee in writing before a formal investigation of the
nature of the investigation, the identity and authority of the person investigating,
and the specific charges or violations being investigated. La. R.S. 33:2181(B)(1).
At the commencement of any interrogation, the employee must also be notified of
the identity of all persons present during the interrogation. La. R.S. 33:2181(B)(2).
Failure to completely comply with the provisions in conducting an investigation
results in an absolute nullity of the discipline. La. R.S. 33:2181(C).
An interrogation is defined as including any formal interview, inquiry, or
questioning, but not an initial inquiry conducted by the employee’s immediate
supervisors, of an employee by the appointing authority or his designee regarding
3
misconduct, allegations of misconduct, or policy violations. La. R.S.
33:2181(A)(2). Interrogations must be recorded, and employees are entitled to the
presence of counsel or a representative. La. R.S. 33:2181(B)(4-6).
The Louisiana Attorney General’s office has interpreted La. R.S. 33:2181 as
applying to all situations when an authorized person makes an inquiry or collects
evidence with a view to disciplinary action. La. Att'y Gen. Op. No. 13-0207, 2014
WL 1404481 (referencing La. Att’y. Gen. Op. No. 07-0073, 2007 WL 2276696)
(stating the protections apply if the investigation requires a close study or
systematic inquiry into a situation, as well as if disciplinary action, demotion, or
dismissal is a possible result).
Farrelly argues that the initial meeting at headquarters was an interrogation,
exceeding the scope of an initial inquiry. It was initiated by the highest-ranking
member of the department, took place at headquarters, and was conducted by the
assistant superintendent and deputy chief. Farrelly testified that he was told by his
Chief that he “had to go speak to Saunders at headquarters,” and being told they
were aware of his arrest, he was asked “what happened.” He testified that he was
not told he was under investigation before the meeting.
At the Fire Civil Service Board hearing, Director Greco testified that he was
the Appointing Authority, responsible for the investigation of rule violations of
Jefferson Parish East Bank Consolidated employees. He denied that he knew
whether he would be disciplining Farrelly when he heard that he may have been
arrested. He also testified when he heard of the arrest he had Assistant Director
Saunders “approach or meet with Jonathan Farrelly to find out if - - in case it was
true that he was arrested.” When asked if Saunders asked Farrelly for his side of
the story, Greco stated “I wasn’t there.” He testified that Farrelly was not under
investigation until after Assistant Director Saunders confirmed the arrest, at which
time Farrelly was notified by a letter of March 23, 2017.
This Court has previously discussed whether a meeting with superiors could
be an investigation requiring compliance with the Firefighter Bill of Rights.
Bergeron v. City of Kenner, 10-229 (La. App. 5 Cir. 10/26/2010), 51 So.3d 143,
147. In that case, a firefighter, Bergeron, argued that a Board failed to recognize
his rights when a meeting at headquarters was actually an investigation. Id. at 144-
45. At the meeting, Bergeron was asked questions regarding his knowledge of the
department’s policy of providing a physician statement to the assistant chief of fire
department at headquarters, after he had turned in his statement at his fire station.
Id. at 145.
4
This Court found that while the nature of the meeting was debatable, no
evidence was presented to show that the meeting was a systematic inquiry
necessary to find manifest error in the district court’s affirming of the Board’s
decision. In that case, there were no facts to investigate because the underlying
actions precipitating the meeting were undisputed. Furthermore, the questions in
Bergeron concerned violations of department policy. This is distinguishable from
the facts in the present case which involve allegations of criminal conduct.
Without the presence of counsel, Farrelly was asked to discuss facts relating
to a pending criminal prosecution. While the Firefighter Bill of Rights provides
that statements made during the course of an administrative investigation shall not
be admissible in a criminal proceeding, Farrelly was not informed of these rights at
the time of the meeting. La. R.S. 33:2181(B)(7). He was not advised whether his
disclosures to his employers could adversely affect his impending criminal case.
He may have felt that he had to answer the questions of his superiors as
Department Rules and Regulation, Article X Section 3:06 states “[a]ny member
who, when so directed by authority, refuses to answer questions or render
statements, material, etc. relevant to any Department investigation shall be subject
to disciplinary action.” Furthermore, when the Department seeks information
regarding conduct that results in an arrest, the details of the conduct can be
confirmed through the police report.
Appellee argues that this was not an interrogation because at the time of the
meeting Greco had no view towards possible disciplinary action. In Bergeron we
stated that “[t]he nature of an inquiry in each case must be considered on its own
circumstances, and the characterization of a meeting by the appointing authority
does not determine its true nature.” Bergeron, 51 So.3d at 147.
We find that the Board was clearly erroneous in finding that there was no
violation of the Firefighter Bill of Rights. Farrelly was interrogated without
counsel and without being informed of the nature of the investigation, in violation
of the Firefighter Bill of Rights. In seeking confirmation of the arrest, the
Department conducted an interrogation under La. R.S. 33:2181(A)(2) by
questioning a fire employee through the appointing authority’s designee regarding
misconduct. As we have previously cautioned, “[t]he rights of fire employees
under the statute cannot be subverted by manipulating or disguising the form of
query so as to make the Firefighters Bill of Rights meaningless.” Bergeron, 51
So.3d at 147. This was not an initial inquiry conducted by his immediate
supervisors, but rather by the Assistant Fire Director and the District Chief. In
5
seeking a confirmation of Farrelly’s arrest, the Department could have delegated
the task to Farrelly’s immediate supervisors. Instead, Farrelly’s captain, Frank
Tournier, brought him to headquarters. Farrelly testified that he had already
reported the incident to his captain Billy Ziegler upon his return to work on March
20, 2017.
Appellee argues that even if the inquiry was an interrogation without
informing Farrelly of his rights, subsequent actions taken after the meeting cured
the prior violation. Appellee argues, that as Farrelly was later notified of an
investigation and provided of a copy of the Firefighters Bill of Rights, the
subsequent hearings in which Farrelly “freely admitted to the conduct” were in
compliance with the Bill of Rights. For this position, appellee relies on Ouachita
Parish Police Jury v. Ouachita Parish Fire Prot. Dist. No. 1 Civil Serv. Bd, 46-480
(La. App 2 Cir. 9/21/11), 72 So.3d 987, 991, a Second Circuit case, in which the
court noted that the Firefighter Bill of Rights does not prohibit the employer from
reinstituting a second investigation regarding the employee’s actions after the
disciplinary actions are nullified.
This Court agrees that an investigation can be reinstated after a previous
investigation violated the rights of the subject. In the present case, however, there
was never a reinstituting of a new investigation when the issue of violation of the
Firefighter Bill of Rights was raised by Farrelly’s counsel at the FCSB hearing.
Rather than being freely given, Farrelly’s statements at the FCSB hearing, as well
as the pre-disciplinary hearing, were tainted by the violation at the initial
interrogation. While Farrelly confirmed the details of the incident, after being
provided with his rights, to the FCSB and to Fire Director Greco at the pre-
disciplinary hearing, it was with the knowledge that he had already disclosed this
information to the Assistant Fire Director.
It is the opinion of this Court that once the violation of the Bill of Rights is
raised by a subject, it is incumbent upon the appointing authority to take curative
measures before further investigation. Statements given by a subject at an
interrogation, before being provided the Firefighter Bill of Rights, should not be
used in subsequent proceedings. When a subject is notified of an investigation,
after providing information at an improper interrogation, informing a subject of the
likely inadmissibility of the prior statement may be sufficient to ensure that a
reasonable person in the subject’s situation would understand the importance and
effect of his rights. See Missouri v. Seibert, 542 U.S. 600, 621-22, 124 S.Ct. 2601,
2615-16, 159 L.Ed.2d 643 (2004) (Kennedy, J., concurring).
6
CONCLUSION
As the discipline is nullified by the Department’s failure to comply with the
Firefighter Bill of Rights, it is not necessary to address Farrelly’s second
assignment of error regarding whether the FCSB’s decision was in good faith for
cause. Therefore, we reverse the decision of the district court and reverse the
decision of the Jefferson Parish Fire Civil Service Board affirming the disciplinary
action by the Jefferson Parish East Bank Consolidated Fire District.
REVERSED
7
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 4, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-CA-216
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE GLENN B. ANSARDI (DISTRICT JUDGE)
LAURA C. RODRIGUE (APPELLANT) KEITH R. CREDO (APPELLEE) AMANDA PLAISCIA (APPELLEE)
BLAKE J. ARCURI (APPELLANT) GUICE A. GIAMBRONE, III (APPELLEE) LOUIS L. ROBEIN, JR. (APPELLANT)
CHRISTINA L. CARROLL (APPELLANT) CRAIG R. WATSON (APPELLEE)
MAILED
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