Greemon v. City of Bossier City

• Decision Date: 01 July 2011
• Docket Number: 2011–C–0039.,Nos. 2010–C–2828,s. 2010–C–2828
• Citation: 65 So.3d 1263,32 IER Cases 1136
• Parties: B.W. GREEMONv.CITY OF BOSSIER CITY, Louisiana and the Bossier City Municipal Fire and Police Civil Service Board.
• Court: Louisiana Supreme Court

65 So.3d 1263

32 IER Cases 1136

B.W. GREEMON

v.CITY OF BOSSIER CITY, Louisiana and the Bossier City Municipal Fire and Police Civil Service Board.

Nos. 2010–C–2828

2011–C–0039.

Supreme Court of Louisiana.

July 1, 2011.

Cook, Yancey, King & Galloway, APLC, Michael Danforth Lowe, Kenneth Mascagni, for Applicant (No. 2010–C–2828).Bradley Murchison Kelly & Shea LLC, Jerald Norman Jones, Kenneth David McLean, Hilburn & Hilburn, Cary Allen Hilburn, for Respondent (No. 2010–C–2828).Bradley Murchison Kelly & Shea LLC, Kenneth David McLean, Jerald Norman Jones, for Applicant (No. 2011–C–0039).Cook, Yancey, King & Galloway, APLC, Kenneth Mascagni, Michael Danforth Lowe, Hilburn & Hilburn, Cary Allen Hilburn, for Respondent (No. 2011–C–0039).WEIMER, Justice.

[2010-2828 (La. 1] This court granted writs to determine whether respondent's civil service hearing must be nullified because the board that conducted the hearing did not formally vote to deliberate in an executive session closed to the public. Although we in no way condone a failure to vote, because respondent first asserted a claim that the Open Meetings Law was violated some 17 months after the hearing, we find that respondent's claim was barred by the 60–day limitation period of former LSA–R.S. 42:9 (now redesignated as LSA–R.S. 42:24).¹

[2010-2828 (La. 2] FACTUAL AND PROCEDURAL BACKGROUND

B.W. Greemon was a paramedic with the Bossier City Fire Department. On November 7, 2007, Mr. Greemon responded to a call to assist an apparently intoxicated individual, Eric Holloway, who was in police custody.

At the scene, Mr. Greemon was informed that Mr. Holloway had consumed as many as 18 beers and was possibly a diabetic. Mr. Greemon evaluated Mr. Holloway and authorized Mr. Holloway's transport to jail. Mr. Holloway was then transported to and booked into jail, where he was found dead the next morning.

A complaint was filed against Mr. Greemon for clearing Mr. Holloway's transport to jail rather than to a medical facility. Mr. Greemon was questioned by the Bossier City Fire Department's internal affairs board and by a predisciplinary review board. Fire Chief Sammy Halphen reviewed the results of the investigation, and Mr. Greemon was terminated from his employment with Bossier City.

Mr. Greemon filed a civil service appeal, which was considered by the Bossier City Municipal Fire and Police Civil Service Board (“Civil Service Board”). After the presentation of evidence, counsel for Mr. Greemon and for Bossier City were asked by the legal advisor for the Civil Service Board whether the parties were willing to submit the matter for decision. Both parties agreed to submit the matter to the Civil Service Board.

One Civil Service Board member then moved to enter into executive session, and another member “seconded” the motion. No formal vote on the motion to enter executive session is reflected in the hearing transcript, but the presiding board member clearly directed that the Civil Service Board enter the executive session, [2010-2828 (La. 3] which was closed to the public. No one from the Civil Service Board voiced an objection to entering the executive session, and neither of the parties contemporaneously objected. After the executive session, the Civil Service Board returned to an open session. Neither of the parties registered a complaint at that time to the executive session that had just occurred. The Civil Service Board then publicly voted, 3 to 2, to uphold Bossier City's termination of Mr. Greemon's employment. The majority found that Bossier City had acted in good faith and for just cause when terminating Mr. Greemon's employment.

On April 11, 2008, Mr. Greemon filed with the district court a pleading captioned: “NOTICE OF APPEAL AND PETITION FOR RELIEF FROM DENIAL OF DUE PROCESS.” In this pleading, Mr. Greemon alleged that he acted appropriately in evaluating Mr. Holloway and that Mr. Greemon was therefore terminated without good faith for cause in violation of civil service law. Mr. Greemon also alleged that he was denied due process because, among other reasons, the Civil Service Board “recessed in a closed-door ‘executive session’ not otherwise open to the public in violation of La.Rev.Stat. 33:2475(M).” ² Mr. Greemon urged that he was prejudiced by the closed meeting because “one or more persons not members of the BOARD participated in and/or commented on the evidence.”

The Civil Service Board filed a responsive memorandum. Later, Bossier City filed an answer to Mr. Greemon's district court pleading. In its answer, Bossier City suggested that memorandums were the usual responsive pleadings to civil service appeals because answers were not required in such appeals. Bossier City further explained that it was filing an answer “out of an abundance of caution” because a citation commanding an answer had been issued at the behest of Mr. Greemon's [2010-2828 (La. 4] counsel and served on Bossier City. No contemporaneous exceptions were raised in Bossier City's answer, and Bossier City has never filed any other form of exception.

On September 1, 2009, Mr. Greemon filed a motion for summary judgment, arguing that the Civil Service Board's procedures had violated Louisiana's Open Meetings Law requirements and that Bossier City had failed to prove that it had acted in good faith and with just cause in terminating Mr. Greemon's employment.

Bossier City objected to the motion for summary judgment, arguing, among other matters, that the motion was the first time Mr. Greemon had sought relief under the Open Meetings Law and that such a claim was untimely.

The district court granted Mr. Greemon's motion for summary judgment inasmuch as the district court ordered that the Civil Service Board's “action ... is declared void and hereby remanded to the Bossier City Municipal Fire and Police Civil Service Board for further proceedings as it deems appropriate to be conducted in strict adherence with the Open Meetings Law.” However, the district court declined to reach the merits of Mr. Greemon's termination from employment, commenting that to do such would be premature.

The district court explained that “[v]iolations of the Open Meetings Law were alleged sufficiently” in Mr. Greemon's initial pleading as “to place that issue before [the district] Court.” Noting that a challenge based on the Open Meetings Law, LSA–R.S. 42:4.1, et seq. , must be filed within 60 days, the district court found Mr. Greemon's initial pleading satisfied this deadline. Emphasizing that no formal vote by the Civil Service Board had been made on the motion to enter into executive ( i.e., closed) session, the district court found that the Civil Service Board's decision to uphold Mr. Greemon's termination should be voided.

[2010-2828 (La. 5] The court of appeal affirmed the district court's remand to the Civil Service Board, after first addressing the question of timeliness. Greemon v. City of Bossier City, 45–0664, p. 6, 8 (La.App. 2 Cir. 11/24/10), 59 So.3d 412, 416–417. Noting that Louisiana is a “fact pleading” jurisdiction, the court of appeal found that Mr. Greemon had sufficiently pled facts in his initial pleading to put Bossier City on notice that the Open Meetings Law was at issue. Id., 45–0664 at 5–7, 59 So.3d at 416. The court of appeal, therefore, reasoned that Mr. Greemon's initial pleading satisfied the requirement to file an Open Meetings Law challenge within the 60–day limitation period. Id., 45–0664 at 7, 59 So.3d at 416–417.

The court of appeal then found that the Civil Service Board had violated the Open Meetings Law: “The Board members neither voted nor gave a reason for the executive session at the March 2008 meeting. Thus, the record supports the district court's finding that the Board held an executive session in violation of LSA–R.S. 42.6.” Id., 45–0664 at 8–9, 59 So.3d at 417. The court of appeal explained that “[t]he Open Meetings Law is not optional.” Id., 45–0664 at 8, 59 So.3d at 417. The Civil Service Board's procedural violation justified voiding the Civil Service Board's employment determination because “[t]he express procedure required by the Open Meetings Law is not a ‘technical’ triviality, which may be ignored at the whim of a public body.” Id., 45–0664 at 8–9, 59 So.3d at 417.

One judge from the court of appeal dissented, and would have reversed the district court's ruling that the Civil Service Board's employment decision must be voided. Greemon, 45–0664, p. 4, 59 So.3d at 418, 419 (Gaskins, J., dissenting). Judge Gaskins opined that Mr. Greemon had not sufficiently pled a cause of action under the Open Meetings Law in the initial pleading. Id., 45–0664 at 2–3, 59 So.3d at 418. According to Judge Gaskins, when Mr. Greemon later filed a motion for summary [2010-2828 (La. 6] judgment invoking the Open Meetings Law, any cause of action Mr. Greemon may have had was perempted because the motion was filed after the 60–day limitation period. Id., 45–0664 at 3, 59 So.3d at 418. Judge Gaskins also explained that under the Open Meetings Law, closed or executive sessions are allowed to review employment decisions, thus, under no set of facts assumed to be true in Mr. Greemon's motion did the Civil Service Board violate the law. Id., 45–0664 at 2, 59 So.3d at 418. Judge Gaskins further concluded the lack of a contemporaneous objection by Mr. Greemon to the executive session was an omission that was fatal for Mr. Greemon's effort to obtain relief under the Open Meetings Law. Id., 45–0664 at 3, 59 So.3d at 418.

Both the Civil Service Board and Bossier City applied for writs of review, which this court consolidated and granted. Greemon v. City of Bossier City, 10–2828, 11–0039 (La.3/4/11), 58 So.3d 463.

LAW AND ANALYSIS

Appellate courts review summary judgments de novo, using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Schroeder v. Bd. of Supervisors of Louisiana State University, 591 So.2d 342, 345 ...