McGann v. Pine Bluff Police Dept.
| Decision Date | 24 September 1998 |
| Docket Number | No. 97-899,97-899 |
| Citation | 974 S.W.2d 462,334 Ark. 352 |
| Parties | James McGANN, Appellant, v. PINE BLUFF POLICE DEPARTMENT, Appellee, |
| Court | Arkansas Supreme Court |
Edward G. Adcock, Little Rock, for Appellant.
John W. Cone, Pine Bluff, for Appellee.
Appellant James McGann was employed by the Pine Bluff Police Department in 1985, but in June of 1995, the Department's chief of police suspended McGann for twenty working days for conduct unbecoming an officer. McGann appealed to the Pine Bluff Civil Service Commission, which reduced McGann's suspension period to fifteen days. Based on evidence that surfaced during litigation concerning the incident that led to McGann's suspension, the Pine Bluff city attorney suggested that McGann was too great a liability and should be terminated. The chief of police terminated McGann on January 6, 1997. McGann requested that the Commission review his discharge in accordance with Ark.Code Ann. § 14-51-308 (Repl.1998). Following a hearing and its review of the matter on February 10, 1997, the Commission issued its findings in an order on March 7, 1997, which in relevant part reads as follows:
Although termination of [McGann's] employment was not wrongful and was based on legitimate concerns involving Officer McGann's potential contribution to economic liability to the City of Pine Bluff, it is believed that additional steps can be taken to better evaluate the risk McGann poses.
[McGann] should be thoroughly evaluated by a psychologist approved by the [Commission] and ... should satisfactorily complete short term training in options for handling situations in which the subject is uncooperative and/or aggressive, said training to be first approved by the [Commission].
... If the psychological examination concludes that [McGann] meets the psychological standards for law enforcement officers, and ... if [McGann] successfully completes the short term training described above, he shall be reinstated.
Disagreeing with the Commission's decision, the Department filed a timely appeal to the circuit court on March 10, 1997. One week later, McGann appeared before the Southeast Arkansas Behavioral Healthcare System (Southeast) for an evaluation and met with a "psychological examiner." His evaluation resulted in Southeast's March 17, 1997 report that contraindicated McGann's certification and reinstatement as a police officer. McGann received a letter dated April 7, 1997, indicating that Southeast had not recommended him. On April 9, 1997, the Department dismissed its appeal of the Commission's decision. McGann, having learned of the Department's dismissal, filed his own notice of appeal to the circuit court on April 14, 1997. The Department requested the circuit court to dismiss McGann's appeal because his notice of appeal was filed beyond the thirty-day appeal deadline prescribed by § 14-51-308(e)(1)(B)(i). The circuit court granted the Department's motion to dismiss, and McGann appealed the trial court's dismissal order to the court of appeals. The court of appeals certified that appeal to this court in accordance with § 14-51-308(e)(2)(A).
McGann presents one point for reversal, arguing that the circuit court erred in ruling he filed an untimely appeal. McGann concedes the original deadline for his appeal was April 9, 1997, or thirty days after the Commission's March 7, 1997 decision. However, citing Pope County v. Friday, Eldredge & Clark, 313 Ark. 83, 852 S.W.2d 114 (1993), McGann compares the thirty-day appeal deadline to a limitation statute and suggests that the appeal period had been tolled by the Department's filing of its notice of appeal. Thus, the appeal time did not commence running again, according to McGann, until the Department dismissed its appeal. He also cites another case, Stroud v. Ryan, 297 Ark. 472, 763 S.W.2d 76 (1989), involving a limitation-period issue and submits that because he suffered no actual injury under the Commission's order, his time for appeal did not take effect until April 7th--the date he first learned that Southeast declined to recommend McGann's retention.
We find no merit in McGann's novel arguments, but we need not reach them because the Commission's March 7 order was not final, and therefore, not appealable. The want of a final order is a matter that we raise ourselves, and under Rule 2(a)(1), Arkansas Rules of Appellate Procedure--Civil, we are limited to a review of a final judgment, decree, or order to avoid piecemeal litigation. See also Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984). Under § 14-51-308(e)(1)(A), McGann had a right to appeal any decision of the Commission to the circuit court, but like in every case of adjudication by an agency or...
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