Bouterie v. Department of Fire

• Decision Date: 09 February 1982
• Docket Number: No. 12590,12590
• Parties: Robert BOUTERIE v. DEPARTMENT OF FIRE.
• Court: Court of Appeal of Louisiana — District of US

Page 340

410 So.2d 340

Robert BOUTERIE v. DEPARTMENT OF FIRE.

No. 12590.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 9, 1982.

Louis L. Robein, Jr., Barker, Boudreaux, Lamy, Gardner & Foley, New Orleans, for plaintiff-appellant.

Charles J. Willoughby, Asst. City Atty., New Orleans, for defendant-appellee.

Before BARRY, LOBRANO, and KLEES, JJ.

KLEES, Judge.

Appellant Captain Robert A. Bouterie was disciplined by his superior officer, District Chief Raymond A. Schwankhart, during the course of an employment related conversation initiated by the superior officer. Appellant stated:

"I am tired of your ridicule and harassment. I can't take any more. If this is what you want ... If this is what you finally want-let's go in the back and end it once and for all because if that's what you want, I am ready."

The appellant was immediately suspended under Section 12:06 of the department rules and regulations:

RESPECT FOR FELLOW MEMBERS

Members shall treat other members of the Department with respect and response due them as fellow officers. They shall be courteous, civil and respectful of their superior members and associates, and shall not use threatening or insulting language, whether on or off duty. Respect to each other shall be extended on all occasions. In adhering or referring to an officer, his title shall be used and must never be omitted, altered or abbreviated.

Later that same day, a letter was sent to the appellant lifting the suspension as of 7 P.M. the same day pending further investigation.

After an investigation by the Board of Internal Affairs, Captain Bouterie was issued a suspension of fourteen (14) days in addition to the twelve hour suspension already served by the appellant.

This suspension and the initial suspension were appealed to the Civil Service Commission and after a hearing, the Commission found that appellant was guilty of violating Section 12:06 of the department rules and regulations. However, the Commission did not find sufficient cause for a three (3) week suspension and reduced it to a period of one (1) week.

Both parties have appealed those portions of the judgment of the Civil Service Commission which were adverse to them. Robert Bouterie contends that the Commission erred in finding sufficient cause for the disciplinary action from the evidence presented to it and the Department of Fire avers that the Commission erred in reducing the penalty imposed by the appointing authority.

As indicated by the Commission, the versions of what happened are somewhat similar as between the accusing person and appellant. They stated, and rightly so, that under normal circumstances, and without any corroborative evidence, they could not find that the City had carried its burden of proof. Manale v. Department of Police, 376 So.2d 607 (La.App. 4th Cir. 1979). However, the Commission distinguished this case from Manale in that here the appellant, Robert Bouterie, confirms the confrontation with his superior and the outburst for which he was disciplined.

As stated by the Commission in its findings: "It would be inane to interpret this as anything else than an offer to resolve a dispute concerning employment by unacceptable physical means, and since it comes from appellant's own mouth, we find supported the charge that appellant violated the provisions of Section 12:06 of the rules and regulations of the Department of Fire which is the gravamen of the charge against him."

The appellant also contends that his remarks are protected speech under the provisions of the 1st Amendment of the United States Constitution. In addition, he asserts that Section 12:06 is merely an imperfect obligation as contemplated in C.C. Art. 1757(1) and is therefore merely moral and unenforceable. In support of his claims he cites Callaghan v. Department of Fire, 385 So.2d 25 (La.App. 4th Cir. 1980).

In Callaghan, a fireman was discharged for failing to obey an order by the fire superintendent to apologize for remarks made by him in a private meeting. This Court, in reversing the decision of the Commission to uphold the dismissal of the fireman, held that the remarks made by the fireman in the course of his private conversation with his employers, i.e., that his superior filed a false report, were protected speech under the 1st Amendment of the U.S. Constitution and Article 1 § 7 of the La.Const. of 1974. The Court went on to state that since the remarks were protected speech there was no basis for the order to apologize. The Court described the order, having no basis in the law, as one to enforce "good manners" and that the order, as such, was an imperfect obligation.

We have carefully considered the Callaghan decision but in light of the facts here find the case of Dumez v. Houma Municipal Fire & Police, etc. 365 So.2d 603, (La.App. 1st Cir. 1978) applicable. In Dumez a police lieutenant was discharged for discourtesy when, in the presence of his superior officers, he uttered the words "F Y " for having been denied entrance to the office of the Police Chief. The provision which was the basis for his discharge was R.S. 33:2500(A)(5) which is similar to Rule 12:06:

"(5) Conduct of a discourteous or wantonly offensive nature toward the public, any municipal officer or employee; and any dishonest, disgraceful or immoral conduct."

The Court in Dumez discussed the issue of protected speech. They recognized the rule of Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965) that freedom of speech is not absolute but subject to reasonable regulation as to time, place and manner of exercise when such regulation is reasonably related to some valid public interest. Dumez cited Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (9th Cir. 1976) which held that the state has a substantial public interest to protect in creating...