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City of Little Rock v. Muncy

Court of Appeals of Arkansas, Division III

August 30, 2017

CITY OF LITTLE ROCK, LITTLE ROCK CIVIL SERVICE COMMISSION, and LITTLE ROCK FIRE DEPARTMENT APPELLANTS
v.
CHRIS MUNCY APPELLEE

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SECOND DIVISION [NO. 60CV-15-2916] HONORABLE CHRISTOPHER CHARLES PIAZZA, JUDGE

          Amy Beckman Fields, Office of the City Attorney, for appellants.

          Robert A. Newcomb, for appellee.

          PHILLIP T. WHITEAKER, JUDGE.

         This 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.

         I. Background

         The 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.)

         After 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.

         On July 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.[1]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.[2] 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, [3] the LRFD terminated his employment.

         Muncy 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.

         The 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] ...


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