Thomas Harrison VS Department of Public Safety and Corrections, Office of Probation and Parole (2013CA0380 Consolidated With 2013CA0381)
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2013 CA 0380 Consolidated With 2013 CA 0381 THOMAS HARRISON VERSUS DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS OFFICE OF PROBATION AND PAROLE 7udgment Rendered NOV 0 1 2013 On Appeal from a Decision of the State Civil Service Commission In and for the State of Louisiana Honorable David Duplantier Chairman John McClure Vice Chairman G Lee Gri Kenneth Polite n D Scott Hughes C Pete Fremin and Sidney Tobias Members Shannon S Templet Director Department of State Civil Service No 17161 C No 17218 W Broussard Jr Alexandria Louisiana Thomas Harrison Counsel for Plaintiff Appellant Susan Griffin Counsel for Defendant Appellee Daniel E Baton Rouge Department of Public Safety Corrections Office of Probation Louisiana And Parole Adrienne Bordelon Counsel for Defendant Appellee Shannon S Templet Director Department of State Civil Service General Counsel Department of State Civil Service Baton Rouge Louisiana I BEFORE PETTIGREW McDONALD AND McCLENDON J riJ fir e Ij3 a C e ev c r 5 P 1L o R c ao ne McCLENDON The plaintiff appeals an adverse ruling of the State Civil Service Commission Commission upholding his termination from his employment with the Louisiana Department of Public Safety and Corrections DPSC Office of Probation and Parole OPP For the reasons that follow we affirm the s Commission decision FACTS AND PROCEDURAL HISTORY Prior to his termination the plaintiff Thomas Scotty Harrison was a status permanent civil service employee holding the position of Probation and Parole Officer 3 On April 29 2011 Mr Harrison was issued a disciplinary letter resulting from his conduct on Ortober 12 2010 when he stopped and restrained an individual walking down the street Mr Harrison was driving alone in an unmarked vehicle when he saw seventeen Toddarious Dixon walking old year along Maryland Street in Alexandria Louisiana Mr Harrison stopped the car and without identifying himself motioned to Mr Dixon to approach his vehicle When Mr Dixon refused and continued walking Mr Harrison chased Mr Dixon grabbed him by his shirt and handcuffed him After checking Mr Dixon s identification Mr Harrison called the Alexandria police station and was informed that there were no warrants against Mr Dixon Mr Harrison then showed Mr Dixon a photograph of an individual with an outstanding warrant and asked Mr Dixon if he knew the man in the picture When Mr Dixon responded that he did not Mr Harrison released Mr Dixon Mr Dixon and his father filed a complaint against Mr Harrison and an internal investigation was conducted As a result Mr Harrison was charged with failing to follow the DPSC Corrections Services Employee Manual concerning arrests Specifically Mr Harrison was charged with violating Rule 6 Failure to Follow Orders and Rule 10 Documents or Making False Statements Falsifying As a result of the investigation and after level 1 and level 2 hearings on March 1 2011 and March 15 2011 Mr Harrison was suspended for ten days without pay effective May 16 2011 through May 27 2011 2 Thereafter on June 22 2011 Mr Harrison received another disciplinary letter resulting from his conduct on February 22 2011 when he and a fellow officer went to the Office of Child Support Services in Alexandria and Mr Harrison arrested Rebecca Fletcher on a probation warrant Mr Harrison had received a tip that Ms Fletcher might be working at the chila support services office At approximately 4 p he asked his junior parole officer Trisha 20 m Maillet to go with him to see if Ms Fletcher did in fact work there Ms Maillet was not informed that they were going to make an arrest Upon their arrival at the Office of Child Support Services Mr Harrison told the receptionist that he was a friend of Ms Fletcher and asked if she was there It was only after the receptionist recognized Mr Harrison that he informed her who he was and why he was there The receptionist called Moody Treadwell the regional manager of the child support services office Mr Treadwell asked if the arrest could be made in his office and he asked that the officers wait until the other employees and clients left the building since the office closed at 4 p to escort Ms 30 m Fletcher out of the office Mr Harrison consented to these requests While waiting the conversation between Mr Harrison and Mr Treadweil escalated Eventually Ms Fletcher was escorted out of the office and to the jail Later that afternoon Michael Wynne to Mr Treadwell called Mr Harrison supervisor s complain about Mr sconduct Harrison An investigation followed that found that proper arrest procedures were not followed and that Mr Harrison lied failed to act professionally investigation violating the and failed to cooperate in the Based on his actions Mr Harrison was again charged with DPSC Corrections Services Employee Manual Specifically Mr Harrison was charged with violating Rule 1 General Misconduct and Rule 13q Aggravated Malfeasance as well as Rule 6 Failure to Follow Orders and Rule 10 Falsifying Documents or Making False Statements As a result of the 1 The investigation also revealed that Mr Treadwell banned Mr Harrison from the Office of Child Support Services 3 investigation and after level 1 and level 2 hearings Mr Harrison was terminated from his employment effective July 1 2011 Mr Harrison appealed both disciplinary actions which were consolidated Mr Harrison asserted that there was no cause for the discipline or in the alternative that the discipline imposed was too severe Following a hearing on the consolidated appeals held on anuary 12 2012 and June 8 2012 the Civil Service Referee rendered an opinion on August 7 2012 sustaining the action of the appointing authority terminating Mr Harrison Thereafter Mr Harrison filed an application for review of the referee decision with the Commission which s was denied This appeal followed ASSIGNMENTS OF ERROR In his appeal Mr Harrison asserts 1 The Commission erred in finding that the referee decision was not s erroneous based on improper evidence both hearsay and double hearsay and unsupported by the probative evidence and testimony offered and adduced at the hearing on the consolidated appeals 2 The Commission erred in affirming the referee decision that the s appointing authority proved just cause sufficient to support Mr Harrison s termination 3 The conclusion of the referee that Mr Harrison rudely yelled at Mr Treadwell and that his testimony lacked credibility is not supported by the record and is arbitrary and capricious as is shown by the testimony or of Mr Treadwell and Mr Harrison employee Tresha Maillet sco 4 The referee ignored and gave no weight in his decision to the written entry recorded by Mr Harrison in his daily travel log book about the contact he had with the complainant on October 12 2010 5 The referee erred in refusing to grant Mr Harrison request for summary s disposition and motion in limine that were based on the following a The disciplinary action of suspension taken against Mr Harrison was based on an investigation by the appointing authority that did not comply with the deadline set forth in Division of Probation and 4 Adult Parole Policy Number PER215 The internal investigation of this matter exceeded sixty days and because of the agency non s compliance with its own written policy his appeal on this disciplinary action should have been granted summarily b The internal investigation by the appointing authority that led to Mr s Harrison suspension did not comply with the minimum standards of S R 2531 LSA 40 Police Officer Bill of Rights and was an absolute s nullity under the provisions of said statute 6 The appointing authority delay of over sixty days to impose the s disciplinary action of the ten suspension of Mr Harrison was day unjustified DISCUSSION In civil service disciplinary cases decisions of the Commission and its referees are subject to the same standard of review as a decision of a district court Harrell v Department of Health and Hospitals Oifice for Citizens with Developmental Center Disabilities 0281 App 10 La 1 considered 2310 10 Pinecrest Supports and Services Cir 9 48 So 297 301 writ 10 10 3d 3d La 12 51 So 10 715 not Factual findings of the Commission referee are subject to the clearly wrong or manifest error standard of review Bannister v Department of Streets 95 La 1 666 0404 96 16 2d So 641 647 weight to be It is the province of the Commission referee to determine the given to evidence in an administrative hearing Evans v DeRidder Mun Fire 01 La 4815 So 61 69 cert denied 537 2466 02 3 2d S U 1108 123 S 884 154 L 779 2003 As to the determination of Ct 2d Ed whether the disciplinary action is based on legal cause and commensurate with the offense the Commission sdecision should not be modified unless it is arbitrary capricious or characterized by abuse of discretion Harrell 48 So 3d at 301 An administrative agency determination is capricious when it has no s substantial evidence to support it it is arbitrary when the evidence has been disregarded or not given the proper weight Marsellus v Dept of Public Safety and Corrections 04 La 1 Cir 9 923 So 656 0860 App 05 23 2d 661 5 A classified employee with permanent status may not be subjected to disciplinary action except for cause expressed in writing LSA art 10 Const A 8 Cause sufficient for the imposition of discipline means conduct that impairs the efficiency of the public service and bears a real and substantial relation to the efficient and orderly operation of the public service in which the employee is engaged Wopara v State Employees Group Benefits Program 02 2641 App La 1 Cir 7 859 So 67 69 The appointing authority must prove 03 2 2d by a preponderance of the evidence that the employee conduct did in fact s orderly operation cient impair the e and of the public service Id A preponderance of the evidence means evidence which is of greater weight than that which is offered in Proof is sufficient opposition to constitute a preponderance when taken as a whole it shows the fact of causation sought to be proved as more probable than not of Health Dept Harrell 48 So at 301 Brown v 3d Hospitals Eastern Louisiana Mental Health System 2348 App 04 La 1 Cir il 05 4 917 So 522 527 writ denied 06 La 2d 0178 06 24 4 926 So 545 2d Further hearsay evidence is admissible in administrative hearings if competent and relevant Harrell 48 So at 305 3d The general rule in administrative hearings is to allow hearsay evidence and to recognize that the inability to cross the declarant affects the weight that the evidence examine carries Id With regard to the incident involving Mr Dixon the referee found that his arrest was clearly unlawful as Mr Harrison had no legal cause to arrest Mr Dixon Further the referee found that the arrest was unplanned and was not authorized by Mr Wynne Thus the referee found that Mr Harrison actions s violated the agency arrest policy and applicable law The referee also f that und Mr Harrison made a false statement to his supervisor when he was questioned by Mr Wynne and that he falsified his daily travel log when he failed to record Mr Dixon arrest The referee concluded s 6 Mr Harrison illegally arrested Mr Dixon In doing so he violated agency policy designed to protect his safety and that of the public Mr Harrison then lied to his supervisor and falsified records to cover up the incident DPSC has proved cause for discipline against Mr Harrison with the charges arising out of this incident With regard to the arrest of Ms Fletcher the referee found that Mr Harrison did not inform Mr Wynne of his intentions to execute the arrest warrant against Ms Fletcher so that the arrest could be planned and Mr Wynne s consent could be obtained as required by agency policy Also the referee found that Mr Harrison did not tell Ms Maillet that they were going to arrest Ms Fletcher so Ms Maillet was denied the opportunity to wear her bulletproof vest as required by agency policy when making arrests The referee also specifically found Mr Harrison testimony lacking in credibility The referee stated s Mr Harrison actions and inactions in connection with this s arrest were in violation of the agency arrest policy and were unprofessional His transgressions potentially placed himself Ms Maillet and the public at risk and his rude behavior toward Mr Treadwell reflected poorly on the agency DPSC has proved cause for discipline against Mr Harrison with the charges arising out of this incident The referee then concluded Mr Harrison contends his dismissal was too severe I disagree Mr Harrison made an illegal arrest lied about it to his supervisor falsified records committed several violations of the agency arrest policy on two separate occasions and acted in an unprofessional manner all to the manifest detriment of the state service Based upon the forgoing reasons I conclude that DPSC proved legal cause for discipline and that the penalty imposed dismissal is commensurate with the offense Accordingly I hereby deny this appeal Although Mr Harrison maintains that the agency used improper hearsay evidence in its determinations as previously noted hearsay evidence is admissible in administrative hearings if competent and relevant See Harrell 48 3d So at 305 The appointing authority submitted investigative reports emails statements and VR ipackets all documents that are used in the business of the OPP DPSC also presented evidence of a history of complaints instructions and reprimands regarding Mr Harrison prior conduct s Further Mr Treadwell Ms Maillet and Mr Wynne testified at the hearing as did Debra Bradford the appointed investigator in the Dixon matter Kevin Hildago the district manager 7 I for the Covington district and the hearing officer for Mr Harrison ssecond level hearing and Gerald Starks who at the relevant times herein was the Deputy Director of the OPP in charge of disciplinary matters After careful review of the record as a whole we conclude that the factual findings of the Commission referee were not manifestly erroneous We cannot s weigh re the evidence or mak our own creditiility determinations regarding the witnesses or substitute our findings for those of the Commission and its referee We are to determine whether a reasonable factual basis exists in the record to support the referee determination The evidence in the record reveals a s cient su factual basis to support the factual findings of the referee which were adopted by the Commission The record also contains ample evidence establishing an ongoing problem resulting from Mr Harrison aggressive and s unprofessional behavior Accordingly we can find no manifest error in the findings of the referee including the determination that Mr Harrison conduct s did in fact impair the efficient and orderly operation of the public service of the OPP Thus we agree that the termination of Mr Harrison was based on legal cause and was commensurate with the charged offenses and we find no merit to Mr Harrison assignments of error s Because we find that the Commission decision to terminate Mr Harrison s from his employment was not arbitrary capricious or characterized by an abuse of discretion we will not modify or reverse the Commission sdecision and it is affirmed CONCLUSION Based on the above we find that the record supports a finding of legal cause and the disciplinary action of termination Therefore the decision of the State Civil Service Commission terminating Mr Harrison from his permanent position with the Department of Public Safety and Corrections O of ce Z Although we find no merit in Mr slast two assignments of Harrison error regarding his suspension we need not address them having found just cause for his termination and given that Mr Harrison has not sought any wages accrued during his suspension 8 I Probation and Parole is hereby airmed Ai c of this appeal are assessed to sis Thomas Harrison AFFIRME0 9 NUMBER 2013 CA 0380 C W NUMBER 2013 CA 0381 THOMAS HARRISON VERSUS COURT OF APPEAL DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS OFFICE OF PROBATION FIRST CIRCUIT AND PAROLE O STATE OF LOUISIANA n BEFORE PETTIGREW McDONALD AND MCCLENDON JJ PETTIGREW J CONCURS WITH THE RESULTS AND ASSIGNS REASONS I am of the humble opinion the majority should have addressed the legal issues raised by Mr Harrison concerning whether La R 40 is applicable to the facts of S 2531 this case Even if La R 40 may apply to the underlying facts of the disciplinary S 2531 letter of April 29 2011 for Mr Harrison conduct of October 12 2010 which resulted s in a 10 suspension without pay Mr Harrison does not argue to this court or to the day Commission that there was a violation of La R 40 as to the underlying facts of S 2531 the disciplinary letter of June 22 2011 resuiting from his conduct of February 22 2011 which resulted in his termination effective July 1 2011 The termination of Mr Harrison was based on legal cause and commensurate with the offenses arising out of the incident on February 22 2011 For these reasons I concur with the resuits reached by the majority
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