Scott C. Frank VS Louisiana State Board of Private Investigator Examiners

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NOT DESIGNTED FOR PUBLICATION STATE OF LOUISIANA COiTRT OF APPEAL FIRST CIRCLiI'I' NLJMBER 2012 CA. 2040 SC( TT C. FRANK a VERSUS LOUISIANA STATE BOARD OF PRIVATE INVESTIGATOR EXAMINERS Judgment Rendered: 7 OCT 0 2013 On Appeal from the Nineteenth 7udicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No. 607, 67 5 h Honorable R.Michael Caldwell, Judge George R.Knox Lafayette, LA Counsel for Flaintiff/ ppellant A Scott C. Frank Joseph N.Lotwick Baton Rouge, LA Counsel for Defendant/ ppellee A Louisiana State Board of Private Investigator Examiners N BEFORE: PARRO, GUIDRY, A: D DRAKE, JJ. GUIDRY,J. This is an appeal of a judgment on judicial review that affirmed a decision of an administrative board finding a licensed private investigator guilty of professional incompetence. Far the reascns that follow,we affirm. FACTS AND PROCEDtiRAL HISTORY In September 2009, Scott Frank, a licensed pri_ investigator from the vate Lafayette area, was hired to conduct stuveillance in conjunction with a domestic matter. Based on his surveillance, Mr. Frank was called to testify in a divorce proceeding on August 4, 2010, in the Fifteenth Judicial District before the Honorable Edward R. Rubin. During his testimony, Mr. Frank stated that he had observed the husband leaving a wedding party accompanied by a female. Counsel for the husband objected to Mr. Frank's testimony regarding the female, because Mr. Frank had not mentioned observing the husband with a female in his surveillance log. In order to substantiate his statement, Mr. Frank presented a DVD on which he had recorded his surveillance of the husband; hovaever, the portion of the DVD that was played for Judge Rubin did not show the husband leaving with a female as 11r. Frank had testified. Because the portion of the DVD viewed by Judge Rubin did not substantiate Mr. Frank's testimony, Judge Rubin instructed counsel to proffer the remainder of Mr.Frank's testimony, stating: Pm not going to believe anything else he says because what I just saw, he emphatically told me what was going to be revealed on that DVD, and that's not the case. This wztness, I have absolutely no faith in. Absolutely none. So you can proffer his testimony when we're done. Thereafter, Judge Rubin signed an order on August 11, 2010, stating that he believed Mr. Frank had offered " erjured testimony ... for the sole purpose of p influencing the court and thereby affecting the outcome of this case. For that reason, it is the order of this court that Scott Frank will not be allowed to offer any testimony in Division D of the 1 Sth JDC pending further order of this court." 2 In Novernber 2G10, Ryck tiGlXiarras, > a axe ? ti-stA ho aisu vorked r ato. n e r in the Lafayette area, repa; te t1 iniderat t 7?° kan, a Axvestigator Tor th:, i r c Tt4: b Lousbar, State Board qf Privat In. st:Exiners (" gatrr e Bord"). on Mr. 13ased Hahn's investigatioai, i't Englade t# a a executRVe reLxor fth F3, r sexi?a pnmo i, a to Mr. Frank on Iecember 2, 2? acvisir ki that a complair.t file had been 10, g s n opened. Thereafter, or Septezalber 6, tiQl l, forcmal administrti compla: t was filed against 11. Frank by Bruce Chiiders, the Investigatoxy officer for tha Board. In Yhe administrative complaint, Mr.ChilcYers aileg°, that Mr.Frank committAci the d folloeuimg vaolatians of staztory aid iistrative aemi rules: f) pzofessionai incompeteny ar g, negligence in violatibn of a.R. . 37: ross _: S 35191A)(); ( 2) rendering, subrrzitting, subscribng,vr verifying £ ?,deceptiv, misleaiing, ar as d unfund oinion ar reror irt vilation T a. R. . 37; 5( S Q( b); A 3) 3 eommittirig a cxitninal act Qr any other act that reflects averse on h p s inve5tigatier'honesty, trustc or fatnss as ari invesigats an iolaican f s, rtl:n i r LAC 46: VII,. enaging irn ( 725( 2}; L 4) ut anc invoving dihorbeaty, fraud, dece:it, cr misrepresentatin n v of LA 46: VII. and 5)violating any 725( 3); L ( - provision f the Private Investigators Law I:. R. . i'; Boarc a S 3525 or any _ 3501reale or regulation containzd uner Title 46, gart L; II of the LarYSia 4' ia Administratiive Gode. On ;ovemr 1,20 i 1, a fearin on tYe adnainitrative cmplaint against Mr Frank was held before the Bqari. the cocluszor of th heari,, 3oard tt 3kie adopted t. statemet of th Board's unsel, Angeiiqjue Frei, fhe Board` he as findkrgs: `In tkxv foanafl opirfln anc rder aer. the Boakd, n sined by t1xe derd b; hearing offi: r,Calvin " r. y° Fayard, III, er Fbruary 1 2D12; the Boad e T e determined that Mr Frank did not commit perjury;hawever, theBoard found:' Sott Frank was clearly ill prpaYea for cow* , t ivhich resuited in the adverse Orde from the couri, T' is zup with his ixiabiiity to h ed testify tea'the qard as to xh purpose and objestiv of the iavestigation 3 he conducting; reportsurveillance iog was a ion arais fzccn pr:ate v the facx tht a tnri left with irdestigaYur urdknown female in a clivorcw proceed'a uriere Lhe private investigator vas g retaind to bta'rn surceiilance xo show ¢ ossable indelity; and h por quality of the in. , stigatory rec* Scott il' rt' ance s lo that Frank prepared for Lhe lint cs, all. demcrostraie professional 3 A inconnpetenc undar La. : 5.3i. S 14( }). The Board, therefsre ordred Yhat l°Prrak retutce a forty- o trainin eourse 1x. zr h and pay a $ O fin. SOG. Mr. Frank Yimey sought jdbeiai reiew cf the Board's deciion, which decision was affiri'ieci by the d'stri court. This appeal followed. a ARD OF ItFVIEV4 STA.' rD. Once a final judgmen?s xendered by ehe dxstriei court, an aggrieved party may sek review of same by appeal to the approprzate appellate court. O review of ihe district court's judgment, no deference is owed by the court of appeal to factual tindzngs or legal conlusi. of the district court just as n_ defErence is ons o owed by the Louisia:ta Supreine Coaut to fctdzal fixdirigs ar legal conclusicns of the courc af'apval. Maraist v,A? !Ochsner :Vledi, i Foundation, J2-677; pp, 3tan a 2 4(a. App.1st Cir. 5% Sc, ZdBi,1?. an appelate court stting L 04). 26/879 kas, -'' in reviedv of an admi_istrat ageri;y rvfleu Lh fadings and decision sf the wt n s adizti. istrative agency aad nrt th eieciiQn Q£ e distrirt ecuz Smith v. tae, n tl. tmnt alth Deaz fH nd Hopitals, 39, 68. p. I La. App. 2d Ciz ¢,3: ) $ 3 ( E} 95 5 l2; So. 2d ? 5,739,writdenied, S- a; .6/ ?' 70L 3 11C a, I 9 o. L 05); 2i Our review of the dzstrict court's judgmen is governed by La. K. , S G), 49: 64(which statute provades: 9 The curt rnay afirm the decision of he agency or rernand the case ior further procedings. T' e couYt may reverse or rriodifi- tiE h decision if suk.tantial rzghts of the, apaeS. kave been prejudiced s ant becaue the administrative Yidings, ixiferences, conclusicns, cr decisions are; 1) violaYicn f constiutional r statutory provisions in 2) excess of Yhe statutory autho.rity af the abency; In 4 3) Made upon unlaful procedure; 4) Affected by other error f Iaw; 5) Arbitrary ar capricious or characterized by abuse of discretion or cleaiiy unwarranted exercise of discretion; or Not supported and sustainable } 6) a prepnderance of evidence as deterniined by the reviewing court. In the application of this rule, the court shall make its own detertriination and 'eonclusions of fact by a preponderance of zvidence basd upon ats own evaluation of the record reviewed in its entirety upon judicial review. In the application of the xule, where the agency has the opportunity to judge the credibility of witnesses by first- and observation of h demeanor on the witness stand and the reviewing court does not, due regard sha11_ be given to thv agency`s determination of credibility issues. DISCUSSION In his first assignment of error, Mr. Frank argues that the director of the Board, Mr. Englade, should have been sequestered from the hearing and that Mr. En g lade, Lance Wallace or An g eli que Freel should not have been allowed to be present during the Board's deliberation. We find no error in the Board's failure to sequester Mr. Englade from the hearing. As explained by Ms. Freel at the hearing, Mr. Englade, as executive director, is designated by La.R. . 373503( S 4) the chief administrative officer of as the Board, and thus, is a representative of the Board. Therefore, in accordance with La. C. . art._ B)( Englade's presence in the hearing was excepted B 2), 615( Mr. from the rule of sequestration. Also in this assignment of error, Mr: Frank asserts that it was improper for Mr. Wallace, Mr. Englade, and :vls. Freel to be present during the Board's daliberations. Further, Mr. Frank contends that Ms. Freel should not hae been allowed to participate in the adjudicarion by arguing against pre-rial motions. We t will first address Ms. Freel's participation in the adminisYrative proceedings. 5 As previously stated, 14s. Freel was prsent at the hearing as counsel and advisor to the Board. Alsn presant at the hearing vas a hearing officer, Mr. Fayard, and prosecuting counsel (referred to as complaint cunsel"), Lotwick. " Joe A review of the pretrial proceedings reveal that Ms. Freel did offer advice to the Board and the hearing officer, Mr.Fayard; however, argument in opposition to the motions was presented by Mre Lotwick, and the finai decision on eah pre-rial t motion was made by Mr. Fayard. In providing advice to the Board and Mr. Fayard, Ms. Freel questioned counsel for Mr. Frank to seek ciarification regarding the pre-rial motions; but at no time did she rule on any of the motions or direct t how any motion should be decided. As Ms. Freel was not engaged in the performance of investigative, prosecuting, or advocating f' we do not unctions," find that Ms. Freel's presence and offers of advice during the proceedings violated La. R. . 49: 60( Moreover, we further find no violation of the aforementioned S A). 9 statute, as counsel for Mr.Frank participated in all of the pre-rial cbmmunications t with the hearing officer and the Board. See v. Louisiana Board of Chiropractic Examiners, 602 So. 2d 749, 753- 4 ( a.App. 1 st Cir. 1992). 5 L As for the presence of Mr. Englade, Mr. Wallace, and Ms. k' during the reel Board's deliberations, we first observe tht in judicial review of an adjudication proceeding, the court may reverse the decision of the agncy if substantial rights " of the appellant have been S G). prejudiced.°La. R. . 49: 64( Further, as observed 9 by this court in Hall v. State, Derartment of Public Safety and Corrections, 98- 0726, p. 10 La. App. lst Cir. 4i1/ 9), So. 2d 772, 778 citations to case law ( 9 729 ( omitted): An impartial deciszon maker is essential to an adrninistrative adjudication that comports with dae process, even if de novo review is available. To this end, the Louisiana Administrative Procedure Act attempts to prevent partiality or bias in adjudicatiye settings by prohibiting ex parte consultaYions and requiring recusal of subordinate deciding officers or agency members from proceedings in which they 6 cannot accord a fair and imiparcial hearing or consideration. LSAS. R. 49: 60. 9 The I, Suprerne Court has idntified five possihle kinds ouisiana of bias"calling the decisionmaker's impartiality into question: " 1) prejudgment or point of view about a question of A law or policy .,.. 2) preaudgment about legislative facts a that help answer a question of law or policy ... ( 3) Advance knowledge of adjudicata,e facts that are in issue 4) personal bias or personal prejudice, that is, an A towazd attitude attitude about lose by a an decision persori, as distirguished From an who stands tio gain or either way ... or]a conflict of interest. [ issue .,. 5) ( One A party challenging the constitutionality of an administrative adjudication on the grounds of bias ar prejudice of the decisionmaker must overcome the strong presumption of honesty and integrity in those serving as adjudicators. That party must present convincing evidence that the combinatian of functions in the same individual poses such a risk of actual and substantial bias or prejudgment that the practice must be forbidden if the guaraniee of due process is to be preserved. The party must demonstrate some particular bias, which goes beyond the mere combination of functions in a single agency. See also La.R. .49: 60( S A). 9 In this case, NIr,Frank merely asserts that he was prejudiced by the presence of Mr. Englade, Mr. Wallace, and Ms. Freel, but he has nat shown how their presence caused the voting Board members to prejudge or be biased in adjudicating his case. As prviously discussed, lvls. Freel was present as counsei to the Board. A separate hearing oYficer presided over ? e proceedings. Thus, her h presence and offers of advice, without a showing of some type of imprepr.iety by Ms. Freel or the Board, is insufficient to constitute a denial of due process. See 0, So. 2d at 753. 602 In regard to the presence of Mr. Englade and Mr. Wallace, a board member who recused himseif from the proceedings due to his prior business dealings with Mr. Frank, several Board members declared that the gentlemen didn't say anything" during the deliberations. Considering "the strong presumption of honesty and integrity ii1 those serving as adjudicators,"see Butler v.Department of Public Safetv and Corrections, 609 So, 2d 790, 793- 4 La. 1992),and the 9 ( 7 es asstran of the Bosid merriler:hat th.e caa did t participat in the n ii , deliberations, wa do t nd tcu't 3k r prcsEn cf thes r,:, ,_ n rendered th adjudication uncor. ti± utional. 5 In his sac assignr. nd ait. zror, Mr. Frarak protescs the failure of the e f hearing mfic ta rant his r9t i imie to xl frrri evidence the trder r . on are issued by Judg Rubzn barring Mr. Frnk frazn ? iing tstimony in his ourtroom, alleging that such evidence was highly prejudiial to lais case. We find no merit in this contention. he Board's scific finding that lOIr. Frarxk had not connmittd perjury bal: s this asserion. e Mr, Frank iiurther arues rhat the 3eariYa, fcer erred 'zn denvzng h: ;qtion si to ompel d' zscovary and his mot4on for continuarice. Mr. Frank propounded disbovery on :tifr. Lohvick, as comolain counsel, on Setember 3Q, 20I1, an, filed d a motion to comptl discovry r 2Q Octokyr 2?,1 I 1r, Franis. alleges thai informal and incoiplete discovery responses ; ere provided bv r, u Lot1aick n Novatnber 3 I" he hus, filed snotirz fo;c= F3oth the rxiotion to itinuance. c compel and the motio for Gcntinuance wer dn% Fayrd on I' ed b, Nr. v ovember 15 201 l, prior o the earinQ before the Brd. just Adrninzstrativ roceedings are riot rdin. ily verncd by the strict rules oi r < judiuia proeedings. i' lkey tq pieading arifl procedure in Yhe aumiistrative " tie process s fhe opportity do repar. reneraafl5', ar,. n pl.. and ixccies ?ig aEie: di notic may be cure f the reccr. d etablishss tilat a fuli tarang was hd after ;' ropar preparation. H_.v. ouisiana Hnrticg eornmission, 59 Sk 2d g , fltur 751, 75b L. ( App, l st Cir. 1987j. STilf, due groce oes nct ruire hat aar ss [ y Louisana Administxatiqe Code title 46, part LV" T, sections 91: and 913 govern ¢ Baazd's 1 ie receipt an.d coiasider* n of pie-earing motior.s. Sec2ion 93( o n B), ardin a motion. fir eontinuarece, provides that the rnorion may be granted if fhere e substantia? " legicimate grounds that the tearing should be continud oalaneing the right of respondent to a reasonable ' opporiunity to prepare and present a defense tc the complaint and the ta. rd' resp.nsibility io s o protect the publ:c health, welfare, and safety. ° 8 be allowed t propoundl arad etior:: ce ida the farr.i arad nanner set forth in ver ai, ghe Louisiana Code of Civi. Pxccet` ui tuse administrative prqceedings. Delahussave v.Board of S4Nr of Cvm, d Technicai Cqlle¢ s,04unita. m e 4i0, OS1S, p. 16{ a.Ap.1st Cir. 3i? 906 . L d fi4E, 655. The discery sought by :v1r. Fra:rk mairdy ptained to the procedares used in initiating and processing Llie : cmplairt against him. Mr..rank made no ' assertion or showing of how the disc;avery souht would negate in any way the r vidznce relied on Ly the Board in rendexing its aeision. None of the evidence saught by Mr. Frank addressed the merits of hrs actians in performing sunLiilance in tie F1inL casz. ts previousl.y stated, Yle oard rejected Judge Ra: in' s b dealaratic,n ttiat Mr. Frank trad,coanmitted perjurv. Instead, ithe Board found Mr Frarilc uilty of professional in; ompetence based c vlr. Frank's own testimony ] before the oard. The evidence relied on by the Board an finding Mr. Frank guilty of prrfessional ixicoznpetence was- his own testimony ag the heari:, his survsiliance 1o,g, and his testimony r Atgust 4, 2020, before Judge Rtbin. 1_ . VIr. Frank was clearl ware f and knaied z the eidei relied or: by the eable ce d Ba ir rendering its decision. Tiu,w° izrd 1V[s.Frank was it preadiced by e the hearing oficer" denial cf hs motior.s ee eornpel arid fpr a continuaxice. Ser s hes 1Iu v.lt. State Bciard of ventist,49D So 2d 1 Q7, 1 i01_- lLa.App. ouisian 02 4th ir.), rvrit danid, Sa. 2d 26 I,.86), denid, 6 (a cert: 450 iJ. . 933, lU7 S S. t, 1573, 94 L. d.764 ( 92s7). C 2d E 1 In his nal errorr, . assignmenx o£ k lrar, argues that h was dezed du procss bsed on tke failnre Qf the Board to follw iis own rules. Ve likewise rejectthis assignment of error. The evidence presented at the hearing ravealed that an investigatin of'_ Ia°. Frank began with a pYone call ixozn Ir. Williams, a private investrgator from the 9 Lafayette area, to the Board in 0. Noveaalber 2C l- P+ Hahn investigated Mr. Ir. Willams' report, and basea on 1VIr: I- ar. s lahn' vestigation, Mr. Englaae sent a memo°to Mr. Frank on Decexnber 2, 2010, notifying him that a complaint file had been opened on him. Thereaier, response to an znquiry regarding whether a in written complaint against Mr. Frank had been filed, Mr. Englade notified counsel for Mr. Frank that a] Executive Director f the F3oard],I have the authority to "[ s [ file a complaint against aprivate investigator in the state." Nonetheless, in the Board's February 5,2012 " pinion and Order," states "[ signed Order by a O it a] state trial court judge that implicates a private investigator in a crime, when received by the Board, would in and of itself ineet the qualifications of a Complaint under LAC 46: VII. That administrative rule provides, a]y 111." L °[ n complaint to the board must be in writing, signed by the individual making said complaint, and includa an appropriate means by which to contact said individual for investigative purposes.° Throughout the proceedins below, Mr. Frank argued that the proceedings against him were i:in violstion of i, 46: VIL 111. Even assuming that itiated A L the proceedings were initiated in violation of LAC 46; VII.we find that such 111, L a violation, in light of the recard as a whole, is not, of a constitutional dimension. A breach af internal rules violates the constitution only when the procedures promised are denied in such a manmer that the constitutional minimum is itself denied or an independent constitutional deprzvation is effected. Department of Public Safet_ and Corrections Office of Youth Secvices v. Savoie, 569 So. 2d 139, y 143 (La. App. lst Cir. 1990}. At all times, Mr. Frank was aware of"the basic charges against him and the evidence on which the charges were based. Thus, even assuming the Board breached its own ules; we cannot say such a breach : z At Mr. Frank's heazing, Mr. Hahn testified that Mr. Williams called the Bqard's office, and on being advised of the nature of the call,he spoke to Mr.VJilliams. 10 deprived Mr. Frank of due process under the circurnstances. See Savoie, 569 So. 2d at 143. CONCLUSION Therefore, based on our review of the dnYinistrative record and conszdering the applicable Iaw and rules governing the administrative proceedings, we affirm the decision of the Louisiana SYate Board of Private Investigator Exazniners. All costs of this appeal are charged to the appellant, Scott Frank. AFFIRMD. 11

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