In re Hickman

113 So. 3d 1163, 12 La.App. 3 Cir. 1360, 2013 WL 1319604, 2013 La. App. LEXIS 636
CourtLouisiana Court of Appeal
DecidedApril 3, 2013
DocketNo. CA 12-1360
StatusPublished
Cited by1 cases

This text of 113 So. 3d 1163 (In re Hickman) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Hickman, 113 So. 3d 1163, 12 La.App. 3 Cir. 1360, 2013 WL 1319604, 2013 La. App. LEXIS 636 (La. Ct. App. 2013).

Opinion

EZELL, Judge.

hBobby Hickman appeals a trial court judgment affirming the City of Leesville’s and the Leesville Municipal Fire and Police Civil Service Board’s decisions regarding his termination by the City of Leesville as Police Chief. For the following reasons, we reverse the judgment of the trial court.

FACTS

On November 5, 2010, notice was sent to Mr. Hickman by the City of Leesville that it was conducting an investigation “to determine if you have violated any provisions of Municipal Fire and Police Civil Service Law, or any policies and procedures of the Leesville Police Department or the City of Leesville.” The notice stated that on or about November 4, 2010, Mr. Hickman was “alleged to have committed acts contrary to the Laws of the State of Louisiana, and or the United States of America.”

On December 10, 2010, the City sent a letter to the Leesville Municipal Fire and Police Civil Service Board (the Board) requesting an extension of time to complete the investigation. The letter indicated that Mr. Hickman had not been served personally until November 24, 2010, due to illness. This extension was never granted.

On January 6, 2011, a letter was sent to Mr. Hickman informing him that the state police would not be assisting in the investigation as originally anticipated, and that the City had hired Mark Sheridan to assist in the investigation. Enclosed was an agreement for Mr. Hickman to sign which would extend the investigation for thirty days. This was never signed by Mr. Hickman or the City. On January 13, 2011, Mr. Sheridan sent a letter to Mr. Hickman informing him that he would like to interview him on either January 24 or January 25. On January 17, 2011, Mr. Sheridan drove to |2Mr. Hickman’s residence and personally delivered the letter. Mr. Sheridan sent a third letter to Mr. Hickman on January 25, 2011, indicating that Mr. Hickman had not made any attempt to contact him. The letter also notified Mr. Hickman that an interview had been scheduled for Thursday, January 27, 2011 at 1500 hours. At a January 25, 2011 Board meeting, the Board declined to extend the request for extension to investigate by the City.

On January 26, 2011, Mr. Hickman’s attorney sent a letter to the City informing it that the notice of the investigation was vague as to the nature of the investigation and the factual circumstances surrounding the investigation. His attorney also stated that more than sixty days had elapsed since the internal investigation was commenced, and it had never been extended by the Board. Therefore, by law, the investigation had expired.

On January 28, 2011, the City sent a letter of termination to Mr. Hickman informing him that he was being removed from the position of Chief of the City of Leesville Police Department. The City stated that he was being terminated pursuant to La.R.S. 33:2562 for refusing to cooperate or participate in any interview. Mr. Hickman claims that he first learned of his termination in the newspaper. He states that he did not receive notice by mail of the termination until February 9, 2011.

After learning of his termination in the newspaper, on February 2, 2011, Mr. Hick[1165]*1165man filed an appeal with the Board. He complained that he never received a pre-disciplinary hearing, the investigation exceeded the amount of time permitted by law, and he was never properly notified of the nature of the City’s internal investigation.

Another Board meeting was held on February 9, 2011. Mr. Hickman was notified that the Board would consider whether to grant the City’s second request to |aextend the time to investigate Mr. Hickman at this meeting. Mr. Hickman’s appeal was also heard at this time, and the Board dismissed his appeal.

Mr. Hickman then appealed the Board’s decision to the district court. The district court heard the matter on May 16, 2012. The district court issued written reasons on July 10, 2012, affirming the action of the Board and stating: “During the 60 day interval Mr. Hickman was the subject to [sic] a criminal investigation and was therefore unable to cooperate with the investigation by the Civil Service Board.” A judgment affirming the decision of the Board was signed on September 12, 2012. Mr. Hickman then filed the present appeal.

MOTION TO STRIKE THE CITY’S BRIEF AND MOTION TO SUPPLEMENT THE RECORD

Mr. Hickman filed a motion to strike the City’s brief for its failure to comply with Uniform Rules-Courts of Appeal, Rule 2-12.5, arguing that the brief does not offer suitable references to the record in support of several assertions made by the City because there is no support for the assertions in the record. In response, the City filed a motion to supplement the record with the transcript of the proceedings from the Board’s meeting on November 9, 2011, along with the City’s book of exhibits that were tendered to the Board at that hearing. The City claims that these documents were inadvertently omitted from the record.

An appellate court must render any judgment which is just, legal, and proper upon the record on appeal. La.Code Civ.P. art. 2164. “The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcripts, jury instructions (if applicable), judgments, and other rulings, unless otherwise designated.” Niemann v. Crosby Dev. Co., L.L.C., 11-1337, p. 7 (La.App. 1 Cir. 5/3/12), 92 So.3d 1039, 1044; La.Code Civ.P. arts. 2127 and 2128.

| .(Louisiana Revised Statutes 33:2561(E) gives an employee the right to appeal a prejudicial decision of the board. After receiving notice of the appeal, the board “shall ... make, certify, and file the complete transcript with the designated court.” Id.

Notice of Mr. Hickman’s decision to appeal the Board’s November 9, 2011 decision to the district court was sent to the Board on November 17, 2011. A request was made by Mr. Hickman that:

a certified transcript of the record, or written findings of facts, and all papers and exhibits on file in the office of the Board affecting or related to Mr. Hickman’s appeal, including all exhibits offered at the hearing and documents/minutes reflecting or memorializing the Board’s ruling, be filed with the 30th Judicial Court in accordance with law.

At the district court hearing on May 16, 2012, counsel for Mr. Hickman stated at the onset: “I believe that the Civil Service Board lodged its record including the transcript and the exhibits offered by the parties. It’s already in the record of this proceeding, but I’d like to offer, file and introduce that into evidence at this point.”

[1166]*1166Therefore, we grant the City’s motion to supplement the record with the transcript of the Leesville Civil Service Board meeting from November 9, 2011, and its exhibit book.

Mr. Hickman has stated that there are references in the City’s brief to facts that occurred after the hearing. An appellate court cannot consider on appeal facts referred to in appellate briefs if those facts are not part of the record on appeal. Succession of Badeaux, 08-1085 (La.App. 1 Cir. 3/27/09), 12 So.3d 348, writ denied, 09-822 (La.5/29/09), 9 So.3d 166. Therefore, Mr. Hickman’s motion to strike the City’s brief will be granted as to any provisions that are not contained in the appellate record.

| ¿DISCUSSION

Mr. Hickman appeals his termination as police chief of the City of Leesville.

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Bluebook (online)
113 So. 3d 1163, 12 La.App. 3 Cir. 1360, 2013 WL 1319604, 2013 La. App. LEXIS 636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-hickman-lactapp-2013.