Julie Gaspard v. City of Abbeville

Louisiana Court of Appeal

Julie Gaspard v. City of Abbeville

DecidedNovember 6, 2013

DocketCA-0013-0519

StatusUnknown

This text of Julie Gaspard v. City of Abbeville (Julie Gaspard v. City of Abbeville) 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

Julie Gaspard v. City of Abbeville, (La. Ct. App. 2013).

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Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

13-519

JULIE GASPARD

VERSUS

CITY OF ABBEVILLE

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APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF VERMILION, NO. 94487 - K HONORABLE PATRICK L. MICHOT, DISTRICT JUDGE

MARC T. AMY JUDGE

Court composed of Sylvia R. Cooks, Marc T. Amy, and Billy Howard Ezell, Judges.

REVERSED.

C. Theodore Alpaugh, III Guste, Barnett, Schlesinger, Henderson & Alpaugh, L.L.P. 639 Loyola Avenue, Suite 2500 New Orleans, LA 70113-7103 (504) 529-4141 COUNSEL FOR PLAINTIFF/APPELLANT: Julie Gaspard

J. Isaac Funderburk Funderburk & Herpin Post Office Box 1030 Abbeville, LA 70511-1030 (337) 893-8140 COUNSEL FOR DEFENDANT/APPELLEE: City of Abbeville AMY, Judge.

The appellant was discharged from her position as a police officer after an

incident in which a student was struck by a Taser flechette during a classroom

demonstration. The officer appeals that termination. For the following reasons,

we reverse.

Factual and Procedural Background

In September 2010, Officer Julie Gaspard of the City of Abbeville Police

Department was assigned to serve as a school resource officer at a middle school.

While serving in that capacity, the plaintiff visited a sixth grade classroom and

attempted to demonstrate the operation of her Taser to the students. The

circumstances surrounding Officer Gaspard’s visit to the classroom are disputed in

the record.

Regardless of the motivation surrounding her visit, however, it is clear that

upon Officer Gaspard’s removal of the Taser from its holster, the weapon

discharged. One of the Taser’s flechettes struck a student in the chest. As the

second flechette fell to the floor, the student did not receive a shock from the

weapon. The record indicates that the students’ and the teacher’s accounts of the

incident, as memorialized in their written statements, differed in certain respects

from Officer Gaspard’s version of events.1

Thereafter, the Abbeville Police Department assigned Sergeant Jason

Hebert, the Department’s Taser trainer, to conduct an initial investigation into the

matter. Afterwards, the Department commenced a formal Internal Affairs

investigation and provided notice to Officer Gaspard of that investigation. A form

1 Some of this dispute involved whether Officer Gaspard placed the Taser’s laser on one or more of the children. She denied that she would have done so intentionally. entitled “Advice of Rights for Officers Under Investigation” is contained within

the record and describes the complaint under investigation as: “Improper use and

deployment of a Taser X26 which resulted in a child being Tased[.]” Both Officer

Gaspard and Sergeant Jason Hebert were interviewed as part of the Internal Affairs

Board’s investigation. Central to this pending matter is Officer Gaspard’s

contention that Sergeant Hebert’s interview was not recorded, as will be discussed

below.

Ultimately, the Internal Affairs Board determined that Officer Gaspard “did

not follow departmental policies when she improperly used and deployed a Taser

X26, which resulted in the injury of a child” and that she “did not fully disclose the

truth, of how the incident occurred, nor of her actions related to the injury of the

student.” The Internal Affairs Board recommended that Officer Gaspard be

suspended, without pay, for seven days. In a subsequent letter to the City’s Mayor,

the Police Chief recommended a ten-day suspension.

The matter proceeded to a Pre-Disciplinary Hearing before the Abbeville

City Council. 2 The City Council’s minutes from the evening of the hearing

indicate that a Pre-Disciplinary Hearing was conducted in Executive Session.

However, testimony revealed that the session included appearances by both Officer

Gaspard and Sergeant Hebert. When the regular session of the City Council was

2 The notice of Pre-Disciplinary Hearing reflected the following offenses:

First Offense – Criminal, dishonest, infamous or notoriously disgraceful conduct having an adverse effect on the efficiency of City service.

Second Offense – False testimony or refusal to testify in an inquiry, investigation or other official proceeding of or with reference to the City.

Both offenses are in reference to the incident occurring on 9-22-10 at J.H. Williams Middle School.

2 reconvened, the City Council voted unanimously to terminate Officer Gaspard’s

employment.

In the letter officially informing Officer Gaspard of the termination, she was

apprised of her right to appeal the decision to the Abbeville Fire and Police Civil

Service Board. See La.R.S. 33:2561.3 Officer Gaspard did so and at the resulting

3 Louisiana Revised Statutes 33:2561 directs, in part, that:

A. Any regular employee in the classified service who feels that he has been discharged or subjected to any corrective or disciplinary action without just cause may, within fifteen days after the action, demand in writing a hearing and investigation by the board to determine the reasonableness of the action. The board shall grant the employee a hearing and investigation within thirty days after receipt of the written request.

B. (1) All such hearings and investigations conducted by the board pursuant to the provisions of this Part shall be open to the public. No hearing and investigation shall be held unless both the employee and the appointing authority have been advised at least ten days in advance thereof of the date, time, and place therefor. If either the appointing authority or the employee fails to appear at the place and on the day and at the hour fixed for the hearing, the board may decide the issue involved on the basis of the evidence adduced and confined to the question of whether the action taken against the employee was made in good faith for cause set forth in the provisions of this Part.

(2) Both the employee and the appointing authority shall be afforded an opportunity to appear before the board, either in person or with counsel, and present evidence to show that the action was or was not taken in good faith for cause as set forth in the provisions of this Part.

(3) The board shall have complete charge of any such hearing and investigation and may conduct it in any manner it deems advisable, without prejudice to any person or party thereto. The procedure followed shall be informal and not necessarily bound by the legalistic rules of evidence. The board shall not be required to have the testimony taken and transcribed, but either the employee or the appointing authority may, at their own expense, make the necessary arrangements therefor. In such cases, the board may name any competent shorthand reporter as the official reporter. If the testimony is not taken or transcribed, then the board shall make a written finding of fact.

C. (1) After such investigation, if the evidence is conclusive, the board may affirm the action of the appointing authority. If it finds that the action was not taken in good faith for cause under the provisions of this Part, the board shall order the immediate reinstatement or reemployment of such person in the office, place, position, or employment from which he was removed, suspended, demoted, or discharged, which reinstatement shall, if the board so provides, be retroactive and entitle him to his regular pay from the time of removal, suspension, demotion, discharge, or other disciplinary action.

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