CITY OF LITTLE ROCK, LITTLE ROCK CIVIL SERVICE COMMISSION, and LITTLE ROCK FIRE DEPARTMENT APPELLANTS
CHRIS MUNCY APPELLEE
FROM THE PULASKI COUNTY CIRCUIT COURT, SECOND DIVISION [NO.
60CV-15-2916] HONORABLE CHRISTOPHER CHARLES PIAZZA, JUDGE
Beckman Fields, Office of the City Attorney, for appellants.
A. Newcomb, for appellee.
PHILLIP T. WHITEAKER, JUDGE.
appeal arises from an action that was originally before the
Little Rock Civil Service Commission ("the
Commission"). The Little Rock Fire Department (LRFD)
terminated the employment services of appellee Chris Muncy.
Muncy appealed his termination to the Commission. The
Commission upheld the termination, and Muncy appealed to the
Pulaski County Circuit Court. The circuit court reversed the
decisions of the LRFD and the Commission to terminate
Muncy's employment. The appellants-the City of Little
Rock, the Commission, and the LRFD-appeal the circuit
court's decision. Muncy has filed a cross-appeal,
asserting that the circuit court erred in declining to award
him attorney's fees. We reverse on direct appeal and
affirm on cross-appeal.
LRFD, as an entity of the City of Little Rock, has the
statutory authority to govern and regulate its employees.
Arkansas Code Annotated section 14-51-302 (Repl. 2013)
provides that "[a]ll employees in any fire . . .
department . . . shall be governed by rules and regulations
set out by the chief of their respective . . . fire
departments after rules and regulations have been adopted by
the governing bodies of their respective
municipalities." In 2012, the LRFD issued a policy
memorandum declaring that any uniformed employee of the LRFD
who tested positive for illegal or controlled drugs would be
terminated. Specifically, the policy provided as follows:
Uniformed members of the Little Rock Fire Department can most
easily describe this policy statement as the standard
regarding the use of alcohol or illegal or controlled drugs.
Illegal or controlled drugs include but are not limited to:
anabolic steroids, amphetamines, barbiturates,
benzodiazepine, metabolites, cocaine metabolite, methadone,
methaqualone, opiates, PCP, propoxyphene and THC metabolite.
*This list is not all inclusive; employees may be
screened for additional substances as determined by the Fire
Chief and could include drugs designated as controlled
substances in the Arkansas Criminal Code as may be amended
from time to time.
A uniformed Little Rock Fire Department employee with a
verified positive drug result confirmed by a Medical Review
Officer (MRO) shall be terminated.
(Emphases in original.)
the policy was issued, the LRFD developed a protocol for its
implementation. Each month, the LRFD chooses seventeen
employees at random to be drug-screened. The selected
employees each provide a urine sample. The urine sample is
screened utilizing an Enzyme Multiplied Immunoassay Test
(EMIT). If a positive result is obtained, the urine sample is
forwarded for a different confirmatory test-a
chromatographic- and mass-spectrometer-based test
(GC/MS)-which analyzes the sample at a molecular level. If a
sample tests positive for methamphetamine, the toxicology lab
will then conduct an isomer test to determine the ratio of
D-methamphetamine (the illicit form of methamphetamine) to
L-methamphetamine (a variant with little stimulatory effect
that is the active ingredient in Vicks inhalers). If the
D-form of methamphetamine is greater than 20%, the test will
be considered positive for D-methamphetamine.
22, 2014, Muncy was randomly selected to be drug-tested. On
the initial test, his urine sample was positive for
amphetamine and methamphetamine, with a result of
222.Because of the positive result, the LRFD
followed its protocol and requested a confirmatory screening
by GC/MS test. The GC/MS testing of Muncy's urine sample
indicated a methamphetamine concentration of 17, 138
nanograms per milliliter (ng/ml) and an amphetamine
concentration of 2, 894 ng/ml. Because of that positive result,
an isomer test was conducted to determine the ratio of
D-methamphetamine to L-methamphetamine. Muncy's sample
was 85% D-form and 15% L-form. Based on the results of
Muncy's drug screen,  the LRFD terminated his employment.
appealed his termination to the Commission, which voted to
uphold Muncy's termination. Muncy then appealed the
Commission's decision to the Pulaski County Circuit Court
pursuant to Arkansas Code Annotated section 14-51-308(e)(1)
(Repl. 2013). Although this statute provides for an appeal
from a civil service commission, the circuit court proceeding
is in the nature of an original action. Daley v. City of
Little Rock, 36 Ark.App. 80, 818 S.W.2d 259 (1991). The
circuit court does not merely review the decision of the
civil service commission for error, but instead conducts a de
novo hearing on the record before the civil service
commission and any additional competent testimony that either
party might desire to introduce. Id. Here, the
circuit court both considered the transcript of the
proceedings before the Commission and took additional
testimony. We will discuss the testimony and evidence before
the Commission as it was presented before the circuit court.
LRFD presented evidence of the reasons for its drug policy.
Gregory Summers, fire chief of the LRFD since 2009, explained
that the reason for the policy was due to the "safety
sensitive work" of the LRFD, stating that "we
definitely don't want anybody operating our equipment
that's under the influence of any type of drug."
Summers further noted that firefighters "have a
responsibility not only to the citizens that they're
there to protect, but also to their co-workers. . . . Other
firefighters need to be able to trust each other with their
lives." Summers also testified that he would be
uncomfortable reinstating a firefighter who had tested
positive for drug use. He stated that it would "send a
bad message to every other firefighter. . . . If an exception
is made for Mr. Muncy, it destroys the policy, and if
that's the case, then we shouldn't even have
one." Summers pointed out that he had fired other
firefighters who had positive drug tests, including one who
tested positive for marijuana after attending a
"hookah" party, even though that firefighter
claimed he did not know what was in the hookah. Summers
explained, "So intentional [or] ...