Evans v. DeRidder Mun. Fire

• Decision Date: 03 April 2002
• Docket Number: No. 2001-C-2466.,2001-C-2466.
• Citation: Evans v. DeRidder Mun. Fire, 815 So.2d 61 (La. 2002)
• Parties: Johnny M. EVANS, Sr. v. DeRIDDER MUNICIPAL FIRE and Police Civil Service Board.
• Court: Louisiana Supreme Court

815 So.2d 61

Johnny M. EVANS, Sr. v. DeRIDDER MUNICIPAL FIRE and Police Civil Service Board.

No. 2001-C-2466.

Supreme Court of Louisiana.

April 3, 2002.

Rehearing Denied May 24, 2002.

David R. Lestage, DeRidder, Counsel for Applicant.

Charles A. "Sam" Jones, III, DeRidder, Counsel for Respondent.

VICTORY, J.

We granted this writ application to determine whether the finding of the DeRidder Municipal Fire and Police Civil Service Board (the "Board"), that Johnny Evans, Sr. ("Evans") was dismissed in good faith and for cause, was supported by competent evidence. After reviewing the facts and the applicable law, we find that there is competent evidence in the record to support the Board's ruling.

FACTS AND PROCEDURAL HISTORY

On August 14, 1997, Earnest Prater, Jr. ("Prater") was arrested by DeRidder City Police in connection with a drive-by shooting. Evans, a member of the DeRidder City Police force, conducted the interview of Prater and at Prater's request, contacted Beauregard Parish Deputy Sheriff Betty Pichon ("Pichon"), a member of the Narcotics Task Force. Prater told Pichon that he knew someone who had drugs, which led the police, including Evans, to the home of Eric Pickens ("Pickens"), where drugs were found and Pickens was arrested.

Prater, who was co-operating with the police, was not booked and was released. Pickens was released on bond. On August 28, 1997, Prater was murdered. On August 28, 1997, Pichon took Pickens to the DeRidder Police Department and advised Sergeant John Gott that Pickens possibly had information concerning a motive in the murder of Prater. Pickens was not a suspect at that time. However, Pickens told Sergeant Gott and other officers that some time the week before, while Pickens was at Evans' residence, Evans told him that Prater was working for the police and that Prater had "busted" Pickens and another person. On August 31, 1997, Pickens gave a statement to Vernon Parish Sheriff's Deputies that Evans had told Pickens and Evans' son, Johnny Evans, Jr. ("Johnny"), that Prater had turned Pickens and another person in to the authorities. In this statement, Pickens also admitted that he was involved, to some extent, in the murder of Prater. Pickens later pled guilty to manslaughter in connection with Prater's death. Johnny was also arrested in the murder of Prater, and was convicted of second degree murder.

Upon learning of Pickens' allegations that Evans had disclosed confidential information which may have led Pickens and Johnny to kill Prater, DeRidder Chief of Police Arvin Malone ("Chief Malone") began an investigation. On September 25, 1997, Chief Malone sent a letter to Evans, informing him that he was under investigation and informing him of his rights. The letter also explained that Evans would have to take a polygraph examination.¹ In October, Evans took a polygraph examination administered by ABC Investigators, Inc., and as a result, the polygraphist, Pete Trahan, notified Chief Malone that Evans "has not told the entire truth to all of the pertinent questions" on the polygraph test.² As a result of the polygraph, Chief Malone recommended to Mayor Gerald Johnson that Evans be dismissed from his employment effective October 31, 1997. Mayor Johnson agreed and approved the dismissal.

Evans appealed his dismissal to the Board, which held a hearing on December 18, 1997. At the hearing, Evans testified that he did not tell Pickens or his son that Prater was a confidential informant. The City attorney sought to present the testimony of Pickens and Johnny regarding the statements Pickens made to the police, but, because criminal charges were then pending against them in the death of Prater, they invoked their Fifth Amendment privileges and refused to testify. Thus, the City introduced the two statements Pickens made to the authorities. Chief Malone testified that, because of the conflicting statements by Pickens and Evans, he ordered Evans to take a polygraph, and that, because Evans failed the polygraph, he was fired. The polygraphist also testified regarding his training and experience, his testing method, the questions asked on the test, and his opinion that Evans had not told the entire truth on the key questions at issue, namely, whether he had told Pickens that Prater was a confidential informant.

Based on the evidence presented, the Board found that the alleged violation by Evans did occur, and that the appointing authority acted in good faith and for cause in the discharge of Evans, and upheld the dismissal. On October 9, 2000, the trial court affirmed, finding that the Board's decision was not arbitrary and capricious and was supported by the evidence. Contrary to Evans' arguments, the trial court found that Pickens' statements were admissible because hearsay is admissible in administrative hearings, and the statements were an exception to the hearsay rule under La. C.E. 804(B)(3) as statements against interest. The trial court held that the results of the polygraph are admissible in administrative hearings within judicial discretion on a case-by-case basis.

The Third Circuit Court of Appeal reversed, finding that the polygraph: (1) was inadmissible as unreliable and irrelevant; (2) that it usurped the fact-finder's role; and, (3) was inadmissible under La. C.E. 607 to attack a witness's credibility. Evans v. DeRidder Municipal Fire & Police Civil Service Board, 01-118 (La.App. 3 Cir. 6/27/01), 789 So.2d 752. Because it ruled that the trial court committed legal error in admitting the polygraph, the court of appeal conducted a de novo review of the record and found that one of Pickens' statements to the police was inadmissible as well, in that it did not fall under any hearsay exception and was inconsistent with the other statement he made. As a result of these conclusions, the court of appeal found that the Board did not possess sufficient cause to terminate Evans, and restored Evans to his former position. We granted the City's writ. Evans v. DeRidder Municipal Fire & Police Civil Service Board, 01-2466 (La.12/14/01), 803 So.2d 977.

DISCUSSION

"In civil service disciplinary cases, an appellate court is presented with a multifaceted review function." Bannister v. Dept. of Streets, 95-C-0404 (La.1/16/96), 666 So.2d 641, 647 (citing Walters v. Department of Police of the City of New Orleans, 454 So.2d 106 (La. 1984)). "First, as in other civil matters, deference will be given to the factual conclusions of the Commissioner." Id. The Commissioner, or Board, has a duty to decide independently from the facts presented whether the appointing authority [the Mayor] had good or lawful cause for taking the disciplinary action, and, if so, whether the punishment imposed is commensurate with the dereliction. Walters, supra. "Hence, in deciding whether to affirm the Commission's factual findings, a reviewing court should apply the clearly wrong or manifest error rule prescribed generally for appellate review." Id. "Second, in evaluating the Commission's determination as to whether the disciplinary action is both based on legal cause and commensurate with the infraction, the court, should not modify the Commission's order unless it is arbitrary, capricious, or characterized by abuse of discretion." Id.

Under La. Const. Art. X, § 8(A), employees with permanent status in the classified civil service may be disciplined only for cause expressed in writing. Further, under the Louisiana Constitution, "cause" for the dismissal of such a person includes conduct prejudicial to the public service involved or detrimental to its efficient operation. La. Const. art. X, § 8(A). Here, there is no dispute that if Evans disclosed the confidential information, there would be sufficient cause for his dismissal.

The primary issue in this case is whether the evidence introduced at the administrative hearing to prove that Evans disclosed confidential information was admissible. In administrative hearings, the hearing officer has the discretion to admit evidence that would otherwise be inadmissible under the Louisiana Code of Evidence. Chaisson v. Cajun Bag & Supply Co., 97-1225 (La.3/4/98), 708 So.2d 375, 381. Rule 10.4 of the Rules of Civil Service Commission provide that "[t]he rules of evidence as applied in civil trials before the courts of this state need not be strictly complied with but the board shall limit evidence to matters having a reasonable relevance to the issues before the board." Further, the findings of the Board must be based on competent evidence. Chaisson, supra; Gant v. Department of Police, 99-1351 (La.App. 4 Cir. 1/5/00), 750 So.2d 382, 387, writ denied, 00-0688 (La.4/20/00), 760 So.2d 1161; Cittadino v. Department of Police, 558 So.2d 1311, 1315 (La.App. 4 Cir.1990).

Evans claims, and the appellate court found, that the polygraph results were inadmissible at the administrative hearing before the Board. We disagree.³ Police officers throughout the land are routinely subjected to polygraph tests, in both the pre-employment screening process and in investigatory actions involving official misconduct. In fact, the Employee Polygraph Protection Act of 1988, which generally prohibits private employers from using polygraphs in the workplace, contains an exception for federal, state and local government employees. See 29 U.S.C. §§ 2001-2008.⁴ Further, Louisiana courts have long recognized that a civil service employee may be ordered to take a polygraph, and that the employee can be suspended or discharged for failing to take a polygraph. See Creadeur v. Department of Public Safety, Div. of State Police, 364 So.2d 155 (La.App. 1 Cir.1978); Lemoine v. Department of Police, 301 So.2d 396 (La.App. 4 Cir.1974); Frey v. Department of Police, 288 So.2d 410 (La.App. 4 Cir. 1973); Dieck v. Department of Police, 266 So.2d 500 (La.App. 4 Cir.1972); Clayton v. New Orleans Police Dep't, 236 So.2d 548 (La.App. 4 Cir.),writ denied,256 La. 867, 239 So.2d 363 (1970); Roux v. New...