Robert Rushing v. El Dorado Civil Service Commission

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION IV

ROBERT RUSHING

APPELLANT

V.

EL DORADO CIVIL SERVICE COMMISSION

APPELLEE

CA 01-857

OCTOBER 30, 2002

APPEAL FROM THE UNION COUNTY CIRCUIT COURT

[NO. CIV 98-111]

HONORABLE DAVID FREDRIC GUTHRIE, JUDGE

AFFIRMED

The El Dorado Civil Service Commission (Commission) found that appellant, Robert Rushing, had violated two rules of the El Dorado Fire Department and suspended him for two days without pay. The Union County Circuit Court found that appellant had violated only one rule but upheld the two-day suspension by the Commission. On appeal, appellant claims that the trial court's ruling was clearly erroneous. We affirm.

The events relevant to the issues at hand began in January 1998. The El Dorado Fire Department employed appellant as a firefighter. Appellant also served as the president of the local firefighter's union, although it was not recognized by the city or the chief of the fire department. Appellant testified to the Commission that he approached Chief Ben Blakenship

with a proposal to change the pay period for the firefighters from a twenty-eight-day payperiod to a fourteen-day pay period. This change would increase the salaries of the firefighters, and it would also increase the expense to the city.

The appellant testified at the Commission hearing that he followed department regulations requiring him to utilize the chain of command before approaching the chief. He spoke to his supervisors and was given permission to have a meeting with the chief concerning his proposal and supporting documentation. He met with the chief in the middle of January, and the chief seemed to approve appellant's proposal. The chief requested that appellant provide some calculations that would support the proposal so that it could be presented to the mayor, the city council, and the finance committee.

A second meeting took place on or about January 20, 1998, between Chief Blakenship and appellant. Appellant once again utilized the proper chain of command and received permission to have another meeting with the chief. Appellant informed the chief of his approximate calculations in regard to a salary increase for the firefighters. He asked the chief for some further data for his calculations. Appellant testified that he told the chief that he wanted to present his proposal to the finance committee of the El Dorado City Council as soon as possible, and the chief responded that it would be "a hard sell" and that he wanted to present the proposal to the mayor first. The chief testified at the hearing that he did not tell appellant that he could not approach the finance committee on his own. Appellant stated that he left the meeting with the understanding that he was to present his final figures to the chief at their next meeting. That meeting took place on January 22, 1998.

As with the other two meetings, appellant gained permission from his supervisor tomeet with the chief. The fourteen-day pay period was discussed once again at this meeting. Appellant testified to the Commission that the chief requested additional calculations and that the chief wanted to see how the appellant had arrived at his final figures. Appellant testified that he thought that this was a delay tactic by the chief and did not provide the chief with any further calculations. Chief Blakenship testified to the Commission that he had "ordered" the appellant to provide those figures. Appellant testified that he was not told that he could not approach the mayor or the finance committee on his own.

Approximately a week later, the appellant called the mayor's office to be placed on the agenda for the finance committee's next meeting. Appellant testified that he was planning to speak to the committee in his capacity as the president of the firefighter's union, not as a firefighter. However, he was not placed on the agenda and did not present his proposal to the finance committee.

On January 28, 1998, the chief advised appellant that he was being placed on administrative leave with pay pending a review of possible violations of departmental rules and regulations. On January 29, 1998, the chief ordered that the Board of Efficiency (Board) be empaneled to review the possible rule violations by appellant. The chief asked the Board to review appellant's conduct in relation to Rule 226 and Rule 239. Rule 226 states in pertinent part that "employees shall not perform any acts or make any statements oral or written ...which tend to disrupt or impair the performance of official duties and obligations of employees of the department." Rule 239 states that " members and employees shall obey the lawful orders of a superior officer at all times." The Board spoke with the chief and withappellant, and after hearing both sides of the situation, the Board found that appellant had not violated Rules 226 and 239, but instead had violated Rule 622, which states that "members of the El Dorado Fire Department will utilize the chain of command at all times." The Board recommended that the appellant be suspended for two twenty-four-hour shifts without pay.

On January 30, 1998, appellant had a meeting with the chief and the deputy chief. At this meeting, he was given the opportunity to resign, but refused. Chief Blakenship then presented appellant with a letter informing him that he was being terminated for violating the chain of command. Appellant appealed the chief's decision to the Commission. Prior to the hearing, the chief reversed his decision concerning appellant's termination and agreed to follow the Board's recommendation for a two-day suspension without pay.

The Commission offered appellant the opportunity to return to work following the two-day suspension, but he declined. Appellant refused to accept the two-day suspension because he did not think that he had violated any of the department's rules. After an extensive hearing, the Commission found that appellant had violated Rules 239 and 622 and suspended him for two days without pay. Appellant appealed the Commission's decision to the Union County Circuit Court.

At the circuit court level, there were no additional hearings or evidence presented by the parties; the circuit court reviewed the findings of the Commission de novo and set aside the finding that the appellant had violated Rule 622. The trial court stated that the rules and regulations did not include the mayor and city council in the chain of command. The trial court held that the chain of command was limited to the fire department personnel, and thatappellant did not violate the chain of command by requesting to be placed on the finance committee's agenda. However, the trial court did find that appellant had violated Rule 239 by failing to obey the order of Chief Blakenship to provide him with additional calculations on his proposal. The trial court found that this violation was sufficient to support the two-day suspension without pay imposed by the Commission. This appeal followed.

We review the findings of the circuit court to determine whether they are clearly against the preponderance of the evidence. City of Van Buren v. Smith, 345 Ark. 313, 315, 46 S.W.3d 527, 528 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Id.

The circuit court reviewed the decision of the Commission de novo, and was not bound by the findings and decisions of the Commission, the chief of the fire department, or the Board. Counsel for both appellant and appellee advised the trial court that the record had fully developed the issues of fact and law at the hearing before the Commission, and that no additional evidence would be presented. The case was submitted to the trial court on the record and legal argument of counsel.

Appellant's argument on appeal is that the trial court erred as a matter of law in concluding that appellant had violated Rule 239. Essentially, appellant's argument is that his procedural due process rights were violated at the Board hearing because he was not given adequate notice as to the charges that were being investigated. Appellant also argues that he was prevented from exercising his First Amendment right to free speech when he wasnot allowed to petition the city council, which he claims is his "legislature." We find his arguments to be meritless and affirm the trial court's decision.

The Due Process Clause of the Fourteenth Amendment provides that, "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. There is a two-step analysis required in all procedural due process claims. Krentz v. Robertson Fire Protection Dist. 228 F.3d 897, 902 (8th Cir. 2000). First, appellant must demonstrate that the state deprived him of some "life, liberty, or property" interest. If the appellant can satisfy the first prong of the test, then he must establish that the state deprived him of that interest without sufficient "process." Id. at 902. Appellant does not specifically address this two-part analysis, but his argument leads this court to assume that appellant is claiming that his two-day suspension without pay is the "property interest" he was deprived of by the state. We agree that appellant would be deprived of his interest in his salary for those two days of suspension. However, the appellant fails to convince us that he was deprived of this "interest" without procedural due process.

The United States Supreme Court addressed the issue of procedural due process claims in Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985). Loudermill divided procedural due process claims into three stages. First, during the "pretermination process" the employee is given notice that he will be terminated and given an opportunity to respond. The second stage is the actual termination of the employee. In the third and final stage, known as the "post-termination process," the employee is given the opportunity to have a hearing with heightened procedural safeguards. Id. at 546-48. The Eighth Circuit Court ofAppeals has interpreted Loudermill to require only limited pretermination process, especially when the post-termination process is available and extensive. Krentz, supra at 902-03.

A pretermination hearing must provide notice of the charges (oral or written), an explanation of the employer's evidence, and an opportunity for the employee to present his side of the story. Id. at 903. The hearing does not have to be formal or elaborate; an informal meeting with supervisors is sufficient. Id. In the case at bar, the appellant argues that he was not given proper notice of the charges against him. The letter dated January 28, 1998, merely stated that appellant was to make himself available for a hearing of the Board to review "possible violations of department rules and regulations." Appellant was not made aware of the exact charges against him until the Board hearing on January 29, 1998. He argues that this did not give him adequate opportunity to prepare and defend himself against the charges leveled by the chief. Although we agree that the chief's letter to the appellant should have been more specific in terms of the appellant's actual violations, the appellant was given an explanation of the chief's evidence concerning his actions and was given the chance to tell the Board his version of events. Also, the Board's findings were not binding on the chief of the fire department or the Commission. Appellant was able to appeal the chief's decision to the Commission for a more extensive hearing, and as Krentz, citing Loudermill, stated,"extensive post-termination proceedings may cure inadequate pretermination proceedings." Id. at 902.

There is no doubt that the appellant was afforded extensive and complete post-termination proceedings. Appellant appealed the chief's decision to the Commission wherea full trial was held and legal counsel for both sides zealously litigated the claims and contentions of their respective clients. Appellee points out that many witnesses were called and formally examined and cross-examined. Exhibits were marked as evidence and introduced and a complete record made of the proceedings. The proceedings were presided over by a member of the Commission who was an attorney. Both parties to the action were confident enough in the proceedings before the Commission to allow the circuit court to simply review the record without further hearings or introduction of evidence. Based on the extensive post-termination proceedings held by the Commission, we hold that the less than adequate "pretermination" hearing held in front of the Board was harmless to the appellant and he was not deprived of procedural due process.

Appellant attempts to argue that he was exercising his right to free speech when he requested to speak to the finance committee. This argument was made below in response to the Commission's finding that appellant had also violated Rule 622, which involves the chain of command at the fire department. The trial court correctly ruled that appellant had not violated the chain of command by seeking to present his proposal to the finance committee of the city council. The trial court found that there was no specific regulation that stated that the mayor or city council were in the chain of command at the fire department, and thus, the appellant could not have violated Rule 622 because he did in fact follow the chain of command in regard to his meetings with Chief Blakenship on all three occasions. The trial court found that appellant had only violated Rule 239, and thus, any issues tied to violations of Rule 622 are not before this court and will not be considered.

Appellant unsuccessfully asserts that the trial court was in error when it found that he had violated Rule 239. At the hearing held before the Commission, the appellant testified that he believed that the chief had requested the additional calculations. The chief testified at the same hearing that he had ordered the appellant to provide the additional calculations so that the final figures could be reviewed prior to presenting the proposal to the mayor and city council. The circuit court upheld the Commission's finding that the appellant had violated Rule 239 that states that one must obey the direct order of a superior officer. It is well settled that any conflicts in the testimony are for the trial court to resolve, and we will defer to the trial judge's superior position to judge and determine the credibility of the witnesses. Dewitt v. Johnson, 349 Ark. 294, 299, 77 S.W.3d 530, 533 (2002). Based on the testimony before the Commission and the trial court, we cannot say that the circuit court's findings that the appellant had violated Rule 239 by disobeying a direct order of a superior officer are clearly against the preponderance of the evidence.··²

d

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²··We hold that the trial court did not clearly err in finding that appellant violated Rule 239.

Affirmed.

Stroud, C.J., and Baker, J., agree.