Las Vegas POA

Due Process Violated When New Charges Added After Hearing

Written on 01/06/2021
Will Aitchison

Adam Procell is a sergeant with the Baker, Louisiana Police Department. When Procell and another officer responded to an alarm at a Baker charter school, they found an open door but no signs of criminal activity. As they were exiting the building, they heard approximately ten gunshots appearing to come from a distance of roughly 50 yards. Upon requesting backup, Procell was informed that a window had been shot out at a nearby Walmart, and people were running in his direction.

The officers decided to canvass the neighborhood. Procell approached Ben Gautreaux, who is the son of East Baton Rouge Parish Sheriff Sid Gautreaux, and inquired whether he had heard gunshots. Gautreaux admitted he had fired the gunshots, stating he was shooting at a snake in his backyard. According to Procell, he examined the area Gautreaux indicated and “there was a lot of dirt disturbed and some holes and things like that.” At one point, Procell told Gautreaux, “I’m not going to say nothing.” Procell claimed he made this statement in response to Gautreaux’s comment about his messy backyard, which contained debris and other items.

Procell advised Gautreaux he had violated a city ordinance prohibiting the discharge of firearms within the city limits. He also stated to Gautreaux that “it was not a big deal” and “it’s BS.” Procell testified he made these remarks in order to put Gautreaux at ease. Procell departed without arresting Gautreaux or issuing a summons.

After speaking to the police chief, Procell returned to the Gautreaux residence. Gautreaux was given a ticket for violating the firearms ordinance, the firearm he used was seized, and he was instructed to report to the police station for questioning by detectives. Gautreaux was eventually convicted of illegally discharging a firearm within city limits.

Procell was given notice of a Loudermill hearing, directing Procell’s attention to the Department’s General Order 107, dealing with situations where a “member” has been “officially charged” with a felony. Following the Loudermill hearing, the Mayor of Baker terminated Procell’s employment, stating that the reasons for the termination were “violations of General Order 107, for failing to obey direct order(s) from Baker Police Chief Carl Dunn and for misrepresenting facts and/or making false statements to Chief Dunn.”

Procell appealed his termination to the City’s Civil Service Board. In a 3-2 vote, the Board voted to uphold Procell’s termination, giving the following reasons for its decision:

“Mr. Procell’s behavior was unprofessional and the appointing authority lost confidence in his ability to perform the job professionally and with trust. Further, the assertion that Mr. Procell made that the matter was not a serious matter in that it could not be associated with the shots fired at Walmart was based upon poor judgment. Therefore, the appointing authority’s actions were taken in good faith and should be upheld.”

The Louisiana Court of Appeals found that the City violated Procell’s due process rights. The Court held “one of the basic requirements of procedural due process is notice and an opportunity to respond. Before an employee with permanent status may be discharged, he is entitled to oral or written notice of the charges against him, an explanation of his employer’s evidence, and an opportunity to present his side of the story.

“The notice of the Loudermill hearing was insufficient to meet the due process requirements of Loudermill in that it failed to advise Procell of the alleged misconduct that formed the basis of his subsequent termination. The notice directed Procell’s attention to the specific portion of the Department’s General Order 107 dealing with situations when a member or an employee has been ‘officially charged’ with a felony. The notice contains no allegation or explanation of any other charge against Procell and clearly indicates the alleged misconduct to be considered at the Loudermill hearing. Since the only specific misconduct alleged in the notice is that Procell was charged with a felony, it was impossible for Procell to determine from the notice that he was also alleged to have been insubordinate and untruthful to a supervisor.

“To meet the requirements of procedural due process, an employee’s right to notice and opportunity to be heard must be extended at a meaningful time and in a meaningful manner. Because Procell was not informed of the nature of the additional charges against him by the Loudermill notice, he had no meaningful opportunity to response to those charges. Since Procell was not afforded the procedural due process rights he was entitled to, his termination was invalid.”

Procell v. City of Baker, 2020 WL 6627228 (La. Ct. App. 2020).

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