Derek M. Landry VS Department of Public Safey and Corrections, Office of State Police
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NOT DESIGNATED FOR PUBLICATION COURT OF APPEAL STATE OF LOUISIANA FIRST CIRCUIT 2008 CA 2142 DEREK M LANDRY VERSUS DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS OFFICE OF STATE POLICE Judgment MAY rendered 8 2009 State Police Commission East Baton Rouge Parish Docket No 07 169 T 0tfy Brooke Duncan III Chairman Marshall Stevenson Vice Chairman Joseph and Floyd Rouge Brown Robert M Mills Cage Jr Stephen H Myers Members S Counsel for Appellant J Falcon Jr Baton Bridgett LA Derek M Landry Clayton Burgess Lafayette LA L Counsel for Appellee Michael C Barron Baton Rouge LA Dept of Pu blic Safety and Corrections Office of State Police William A Norfolk State Police Appellee Referee Baton State Police Commission Rouge LA BEFORE CARTER C J WHIPPLE AND DOWNING JJ DOWNING J This filed appeal termination as trooper with the a Commission Commission affirm the Commission Derek by plaintiff appellant out of anses his The Louisiana State Police police state Landry upheld the termination For the following reasons we decision s PERTINENT FACTS AND PROCEDURAL BACKGROUND Mr Landry Corrections was a trooper with the Department of Public Safety and of State Office Police employment termination pursuant dated I 16 collection of a I July 2007 The letter events spanning The letter stated the He given written notice of his Commission Rules 12 1 and 12 2 in to explained over was that he was being terminated a letter because of I five years following duty you arrested Ms Kristie N Briscoe for driving while intoxicated She 5000 breath test for blood alcohol content and registered a very high reading of 303g On October 14 2006 while on submitted to the Intoxilyzer You released Ms Briscoe to required by Louisiana and procedural orders 2 a transporting her to the nearest medical facility as Specifically your actions violated the following policy Mr Kevin Cross rather than State Police policy and procedure assigned to assist with a serious injury crash which occurred on LA 97 in Tpr investigating trooper Because of the reported serious injuries Lt James D Fail went to the crash scene Lt Fail instructed you to proceed to American Legion Hospital in Jennings Louisiana to get an assessment of injury and have biological specimens drawn on the driver transported to that hospital The driver at said hospital was identified as Thomas Browning On October 23 2006 you were Leon Defelice was the Acadia Parish In your written incident subject Mr mortem kit on a live report of November 10 2006 Browning because you that Mr Browning the driver ofthe vehicle number 2 needle in attempt to draw blood which lasted an you admitted that you seen no reason complained over one knowingly used a post You noted to waste the evidence kit about the discomfort of having been stuck with a hour to the scene ofthe crash you tendered the post mortem kit with an open and unsealed blood Defelice in the presence of Tfc Stacy Prados Tfc Prados asked you if you had completed the Submission to a Chemical Test form DPSSP 46 I 7 relative to Mr Browning You told Tfc Prados that Upon returning kit to specimen V oluntary Tpr you had not completed the form On October 24 2006 neither did you produce the Fail Lt failure to advise the driver of his met with you rights relating to a Rights Relating concerning the Browning was not suspected The statement to Lt Fail Relating to a on of being improper use of post mortem DPSSP 6621 blood kit and the chemical test You told Lt Fail that since you had no other to use the post mortem kit since the driver was not in the BAC kits in you unit you thought it would be okay You stated that you did not think it necessary to read the wrong since the driver to Chemical Test form impaired or Rights Relating to a Chemical Test form to Mr in the wrong in the traffic crash October 24 2006 that you did not think it necessary to read the Rights Browning since the driver was not suspected of being impaired or in the Chemical Test form to Mr wrong in the traffic crash contradicts your written statement ofNovember 10 2006 wherein you stated to Tfc Pardos sic Prados I got side track sic and did not get a signature on the rights form okay to explained Also your statement to Lt Fail since you had no other BAC kits in your unit you thought it would be conflicts with your written statement the post mortem kit since the driver was not in the wrong use wherein you to I state that you used a post mortem kit on a live waste the evidence kit 2 subject Mr Browning because you seen no reason 3 On October 24 2006 you initiated a traffic stop on the driver of a blue GMC Yukon on 1 10 east bound You failed near the Duson Mire exit You exited your unit and met with the driver later identified as Kevin Mudd to activate the microphone on your mobile video recorder MVR system for the first four minutes of the stop in violation ofState Police Four minutes into the stop you reached into your belt and activated the policy microphone The video tape is available for your review at Internal Affairs The driver Kevin Mudd had no identification on him and gave his brother s name Damien Mudd to you You learned from the passenger that the true identity ofthe driver was Kevin Mudd and that he was driving under However you took no immediate action on the traffic violations neither did you take the driver into revocation custody for providing false and requested a consent to You called Troop instead you advised him of your suspicion that narcotics were involved agreed to the search Only at this time did you request assistance information search The driver Code 4 I and advised you were You did not inform the everything is but send assistance okay Troop of the status of your stop who could have assisted in the matter of 5 1 0 minutes P D to meet you or and requested Duson request assistance from the troopers Kevin Mudd and his passenger became visibly nervous knowing that you intended to search and that You appeared relaxed and not on guard The passenger a man of was probably on the way approximately six feet five inches and three hundred fifty 350 pounds came close to you and positioned himself assistance between you and the driver Kevin Mudd Using the passenger as interference the driver ran to his vehicle and As you gave foot chase the passenger now unsupervised and unsecured twice reached into his pants and drove off discarded contraband and located reviewing the tape Sgt Lanny Bergeron bag ofmarijuana and rolling papers a At this After point apparently returned to the scene on October 25 2006 oblivious to the fact that the passenger had thrown contraband into the weeds you You attempted to place him in your unit but could not because ofhis size handcuffed and secured the passenger Troop I of your custody for now You then notified custody who is in just At this time a Duson Police officer passenger sitting on the situation that you by the name were Code 4 and you had ofGerald Credeur arrived on the 10 15 a subject in He observed the scene cuffed and asked you what happened According to Officer f On the tape at 2 33 57 having been told that the Duson Police s if ever i did responded irately with Some f ing useless motherf You did not answer ground Credeur you started saying F Office had just gotten the call you You told Officer Credeur that he could see your vehicle Officer Credeur left the scene get 10 8 and wrote a back the road After helping you statement attached as Exhibit 4 on voluntary get the suspect into In his Acadia Parish Sheriffs Deputy Ricky Monceaux then arrived at the scene to offer assistance II 2006 he indicated that in the past you had never been polite to him On the date in offense report of December question he walked up to your unit in which you were seated with the window down He asked what was going on You then exited your unit and You ignored him and made a face as if to indicate that he should not have asked You removed the handcuffs from your 350 pound suspect walked past Deputy Monceaux without saying a word and returned to your unit passing the Deputy again without saying a word Deputy Monceaux then told you that he had a van coming for the suspect You responded cancel it I don t need it Deputy Monceaux then cancelled the order for the van unprofessional and treated him with 4 On May a II 2007 letter dated Laudermill including and left the portable 7 This Sgt was in the attached report Exhibit 5 that you were wrong since he was there solely to assist you particularly Vankerkhove at Paul Troop I and received the pre termination At this time you turned in some Louisiana State 2007 magazines asserts Deputy disrespect you met with May radio The scene and uniforms Police You did not turn in your commission card equipment badge or wallet wallet Louisiana State Police Internal Affairs opened commission card and wallet On May 17 2007 when an investigation ofthe circumstances surrounding your lost questioned about the LSP commission card you stated that while at the Troop you told Sgt Vankerkhove that you had left the commission card out by the pond at your residence You said it was very dark in your backyard and that was the reason you did not retrieve it before going to Sgt Vankerkhove that you would retrieve the wallet the LSP commission card and some paperwork to the Troop the following following morning bring your week You denied that the commission card was ever lost and surrendered the commission card wallet badge and the Troop on May II You also said that you told 2007 and would wallet to TFC Kevin Ducote You Vankerkhove apparently was did recorded on May not 17 2007 realize that the telephone It is clear that you did not tell conversation Sgt status fishing ofthe commission card wallet and 2007 by Sgt badges telephonic statement to following policy 3 between you and Sgt Vankerkhove Your untruthful statements of May 17 Brown and Kevin Ducote and your untruthful the II anything other than that you lost your in the commission card in the future there Had you told Sgt Vankerkhove that you would bring would have been no need for the telephone conversation which was placed wallet May on Vankerkhove to determine the 2007 to troopers Adrian Sgt Vankerkhove on May II 2007 violate Landry appealed the termination Mr heard the Rule 13 11 to on August 9 The Commission 2007 December 20 2007 and with On June 16 2008 the Commission 2008 its appeal pursuant on one member February 12 dissenting rendered opinion and upheld the termination In Mr In Landry assignment of s appeal 1 error to he this he court 7 8 9 10 and 11 he violated because of the Commission his he forced was denied his 5 appeal In s the 13 11 right to 3 alleges to not 2 follow meriting termination that his due process 13 11 3 rights In were wherein he and the entire Commission did not hear rights he is transcript assignments of error invocation of Rule s testify first to his due process utilizing Rule and proof final of was 2 testimony manner 4 he to which he claims do not rise to the level assignments of error 1 assignments of error Landry challenges various incidents of his alleged failure police procedure claims twelve alleges that the Commission complete thereby depriving him of his right 4 5 and 6 Mr asserts was were not violated allowed to by the Commission cross s examine witnesses have the Office of State Police bear the burden of expedited hearing made a mockery of the judicial process The assignment of error requests reversal of his termination and attorney fees DISCUSSION On 5 January 08 through January 14 2003 you were suspented for thirty six 36 hours for temporary vehicle use authorization sticker to your nephew for use on a 1988 2003 improperly issuing green Chevrolet Caprice station wagon operated by your nephew after a plate had been seized and your nephew and your nephew Brian Mouton cited for Failure to Register Plate by Corporal Michael Brown of Lafayette Police This wrongful conduct subjected the citizens of Louisiana to property risk by wrongfully authorizing operation of an uninsured and unregistered motor vehicle a 6 Again on June 12 2003 you began a seventy two 72 hour suspension which ended on June 23 2003 date incorrect for disobeying a direct order of Sgt Paul Brady in regard to a speeding ticket and obtaining the phone number of a female violator for personal reasons during a traffic stop In the suspension letter of May 28 2003 action you were notified that including 7 August position disciplinary 24 2006 you were cautioned by Lt Fail relative to traffic stops on July 31 2006 through CF attached Exhibit 9 Therein you were cautioned about positioning yourself in a compromising traffic stops On one stop you had allowed two subjects out of their vehicle while allowing a while on On 1 any future violations of this or any nature may result in more severe and up to termination August 2006 passenger to return to the vehicle without supervision and allowed the passenger to walk behind you 4 more than once The first issue to be resolved is whether Mr Landry appellate rights because the proceedings transcription is of the S spoken words were unclear and could be not 19 of the Louisiana State Constitution which imprisonment to subjected based upon judicial review judgment is based used Cheatteam 07 272 claims that the his denote to be transcribed point At least in civil reason to definitely produce Dixon 92 0123 While we unclear the incidences exhibits meaning were fully and specific have made a Citing a criminal court issues some context or where to on was not ellipses State case 746 not outcome clear video or Mr v Landry prejudice a difference action for proper court is unable proper decision Whetstone the transcribed testimony are Furthermore many of the cited compact disc and introduced as specific testimony that may After thorough review of the record without merit we court to pronounce whether the Commission erred in the termination of Mr 5 v 774 to any Accordingly the first assignment of error is to have failed for whatever pointed a an the that 616 So 2d 764 quite on remand parties a particulars of are Landry has can conclude that there is sufficient evidence in the record for this definitively testimony 986 So 2d 738 incomplete so 1 Cir 3 5 93 difference in the upon which the of all evidence omission that would make appellate documented Moreover Mr property without the right of support his arguments with this incomplete record to any that agree person shall be no contains material omissions which presented App that cites Art I Landry He also cites instances where available evidence material La some matter cases an on since 5 27 08 consideration when the record is pronounce or of his 5 Cir App cannot Mr typed deprived complete instances where the numerous transcript in this He however does not rights missing testimony La because he appeal not not provides complete record a He cites recorded and thus could were forfeiture of or has been Landry assignments of In rights process 13 11 State 2 error He claims that the In this identical to case at Court has In issue court in previously Guillory each instance found that the rule was a opportunity are Because of this not 11 13 and d considered 286 was witness first La in 2 light provided long as a to 1 Cir App constitutional is essentially La so as App to avoid party receives due notice and Louisiana XIV courts In Gainer 1 Cir 1992 v appropriate this court absurd results held that interpret Id So statutes long hearings before applicable a referee or to civil trials the Commission The the referee may require the appellant to give his sworn testimony before hearing any other evidence and if at the conclusion of the appellant s testimony the Commission finds that the appeal is not supported by any just or legal ground the Commission may decline to hear or consider any other evidence Commission or and thereafter take t just appropriate action with regard to the final or disposition of such appeal hearing appellant s testimony the Commission or the referee is of the opinion that he may have legal grounds for his appeal it or he shall permit him to adduce such other evidence testimonial or If after otherwise as may be relevant 6 have and summary hearings The courts will and not inconsistent with these Rules the rules ofevidence in the district courts ofthe State shall be observed in all an Dept of Health 13 11 PROCEDURE FOR HEARING APPEALS Where Court by which STATE POLICE COMMISSION RULES CHAPTER 13 APPEALS AND HEARINGS d this 1969 the State Police Commission Rule for in certain instances of their true intent and Institutions determine the process state may language 610 So 2d 936 938 939 are the to civil service rule almost a the Commission has much discretion in the conduct of its dispositions prior se in the Civil Service Commission Rules Hospitals invocation of Rule Department of State v unconstitutional per considered the almost identical due rights U S C A Const Amend heard as a s opportunity of judicial oversight the asserted and enforced so to be Landry alleges that his finding of fact and therefore reviewable by the Under the due process clause the legal rights him determination of whether the rule a conclusion of law rather than a Mr 219 So 2d 282 Penitentiary Louisiana State Court decided procedure of calling violated his due process regard this the rule 10 and 11 8 9 violated because of the Commission were proving its 7 as the Civil Service rules rights they reasonable are and be enforced by the must in violation of basic constitutional not Id courts State Police Commission rule 13 11 d allows the commission to to appellant his give sworn the conclusion of the is not supported by testimony before hearing appellant any just or or testify about the facts of his the Commission finds that the In this case the Commission At the end of his case the evidence and exhibits introduced It is well settled that the Commission has the but no procedural rule may deprive an 219 Guillory the Commission render judgment testimony and permits to to decline the Commission cumulative to permit in a testimony of little making authority in limitation or case doubtful incumbent upon him of issue however individual case must two days entire Landry of we promulgate rules to an disposition permits s This rule Id That the be denied employee in any to to adopt Obviously such Id or authority a resulting manner discharge the burden alleged illegal discharge be resolved in the present his stop the admission of redundant arbitrarily an to taking only the appellant Such Id light of the facts particular conclude there was no per se to an each violation of due process also claims that not all of the members hearings testimony cannot right of establishing to not Id Accordingly Mr of the after relevancy may not be exercised deprivation authority introduction of further evidence such rule is vested in the Commission rule appeal on an proper or Landry could termination This summary at 286 Landry it heard from two testimony employee of the opportunity 2d So defense in full See Mr required supporting his appeal may decline to hear The Commission then decided that Mr State Police witnesses overcome testimony any other evidence and if at legal ground the Commission consider any other evidence to s require the and therefore Although not were present during the the entire Commission did not specifically articulated 7 Mr Landry hear seems his to be arguing that somehow his due process right the members were not A similar issue together Public 18 5 was 620 rights opportunity that a assess v to decider of fact in their appeal hearings an long so 98 1920 as p 5 La the presence of required by which legal Due process does not hearing actually a the satisfy to party receives due notice and a Human Resources Admin one denied due process While public hearing an require hear the witnesses Also see 341 So 2d 1190 to Hamilton 1193 1194 Commissioner dissented because she felt that Mr Another concurred with the we of allows this also reluctant a terminated in disposition by tape recording or assignment of error procedural flexible than its Further procedure application as in it stated that a they Id 98 1920 p 6 734 so dispositions constrained by the Therefore since Landry a s a testimony portion of the Under Lott the Louisiana Supreme Court in the field of administrative law is judicial tribunal one heard Mr at conclude that this must we applied no we are administrative matters is without merit due process findings but felt that each advocate summary to employee quorum of the Commissioners attested that either live Landry the examination of witnesses and evidence to are appeal concerns an law that 621 not was p 7 at 621 administrative appellant should be entitled held proclaimed that Lott 98 1920 p 6 734 So 2d at 621 credibility We note that when it State Police 98 1920 of Dept v 1 Cir 1976 App was Court in Lott Louisiana may determine the process Id be heard Louisiana Health La Office of La asserted and enforced are Supreme In Lott the Court Id due process s the Louisiana and Corrections quorum of the commission at appellant violated because all of whether the Commission must hear the evidence regarding 734 So 2d 617 99 was present when he testified fully discussed by Safety be heard to has 2d a at 621 8 more Lott 98 2920 p 6 734 So 2d at vested right in any given mode of In Mr Landry listed offenses do assignments of error s not rise The Commission a authority has good the 1 Cir App So 2d 319 not is 6 30 95 321 reverse In Id Commission s on legal reviewing or an person opened it mortem So 2d and the should not content kit kit on the green of to that he whether the 671 manifestly the judging disciplinary is commensurate with the Landry order unless it s failed hospital to take because he a person not was so that Mr be used 94 1073 court should or in of Dept Id to the him to do a wrong modify the Commission 303g on a Landry drew dead person saw no reason to waste blood from His excuse the kit once a for he which rendered it useless sample specifically found that Mr Landry failed to get the driver rights form when handling The Commission found that Mr replete with procedural and identification who suspected was determining found that Mr designed was of facts whether 4 8 96 La Moreover punishment specifically found a findings s so Mensman v includes appointing cause afd 95 1950 at 363 abuse of discretion He also failed to seal the blood The Commission signature 671 procedure mandating by using using the post 6 specifically The Commission action and if Office of State Police 363 cases whether the finding unless it is clearly cause court blood alcohol familiar with the living p presented with the dereliction the Commission a disciplinary taking disciplinary exercise of its discretion in The Commission a for So 2d 360 671 reviewing arbitrary capricious who had hear and decide commensurate 94 1073 action is based infraction the cause modify such or erroneous is lawful and Corrections Safety to decide from the facts punishment imposed Public La or 6 and 12 he claims that the the level that would merit dismissal authority s independently to duty to 4 5 2 3 Landry s a crash in Acadia Parish handling of safety violations including allowing of having 9 drugs s a traffic stop was the driver with to escape in the vehicle no Landry used profanity during a stop and in He also failed to turn in his wallet and badges and The Commission found that Mr the presence of other officers gave false a as why he could not do unpublished opinion Landry table In that deficiencies in an apparent that Mr clearly Mr show or trust in the police be allowed to Corrections of error are chances for many find that agreed redemption but he by the State Police uphold to the termination Since the terminate One of the public puts its guardian of its safety it is essential the appointing authority as a uphold 01 2186 we we Collectively the listed infractions of the State Police is law enforcement to and confusion rather than deliberate to decision to s establish and enforce sworn Accordingly given in the Commission 966 So 2d reviewing the record in its entirety it is after was evidenced in unpublished decided committed in the decision no error primary missions employees due were as and Corrections Safety 1 Cir 11 2 07 disobey the rules and regulations to Landry Landry App the Commission report however Here falsification continued arrest case of Public Dept v Office of State Police 07 0559 La 1249 so Landry has previously been given the benefit of doubt Mr our statement p that 13 no error trust La standards of conduct for its appropriate App Berry 1 Dept of v Cir 9 27 02 in the Commission s Public 835 decision So 2d 606 These and Safety 615 assignments without merit DECREE F or the upholding reasons the decision the termination of Derek M and Corrections assessed above to of the State Landry by the Office of State Police is affirmed appellant Derek M Landry AFFIRMED 10 Police Commission Department The costs of Public of this Safety appeal are
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