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Little Rock Police Department v. Phillips

Court of Appeals of Arkansas, Division IV

August 30, 2017

LITTLE ROCK POLICE DEPARTMENT APPELLANT
v.
CHRISTOPHER M. PHILLIPS APPELLEE

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTEENTH DIVISION [NO. 60CV-15-2246] HONORABLE MORGAN E. WELCH, JUDGE

          Sherri Latimer, Office of City Attorney, for appellants.

          Robert A. Newcomb, for appellee.

          N. MARK KLAPPENBACH, JUDGE.

         Appellee Christopher Phillips, an officer employed by appellant Little Rock Police Department ("LRPD"), admittedly violated particular internal rules and regulations of LRPD in April 2014. As a consequence, LRPD's police chief made the decision to demote Phillips from the rank of sergeant to the rank of patrolman. Phillips appealed this decision to the civil service commission, which ultimately affirmed the police chief's decision. Phillips appealed again to the Pulaski County Circuit Court. After hearing the matter de novo, the circuit court found that, as a consequence of admitted rule and regulation violations, the proper sanction for Phillips was to be assessed a thirty-day suspension without pay instead of demotion to patrolman. LRPD appeals from the order entered on March 4, 2016, in Pulaski County Circuit Court that set aside the demotion and imposed the thirty-day suspension. LRPD seeks reversal, arguing on appeal that the circuit court clearly erred and that demotion was the proper sanction. We affirm.[1]

         First, we set out the legal framework of this particular subject in Arkansas law prior to conducting our appellate review. The right of appeal by the city or employee is given from any decision of the civil service commission to the circuit court within whose jurisdiction the commission is situated. Ark. Code Ann. § 14-51-308(e)(1)(A) (Repl. 2013). The circuit court reviews decisions of the civil service commission de novo and has jurisdiction to modify the punishment fixed by the commission even if the circuit court agrees that the officer violated department rules and regulations. City of Little Rock v. Hall, 249 Ark. 337, 459 S.W.2d 119 (1970); City of Little Rock v. Young, 34 Ark.App. 135, 806 S.W.2d 38 (1991). The circuit court may modify the punishment even if the evidence it relies on in doing so was not presented to the commission. City of Van Buren v. Smith, 345 Ark. 313, 46 S.W.3d 527 (2001). The effect of this statutory provision for a de novo appeal to circuit court is to reopen the entire matter for consideration by the circuit court, as if a proceeding had been originally brought in that forum; the circuit court proceeding is in the nature of an original action. City of Little Rock v. Hudson, 366 Ark. 415, 236 S.W.3d 509 (2006).

         The standard of review in these matters is well settled. We review the findings of the circuit court to determine whether they are clearly against the preponderance of the evidence. Tovey v. City of Jacksonville, 305 Ark. 401, 808 S.W.2d 740 (1991). In our review of the circuit court's findings, we give due deference to the circuit court's superior position to determine the credibility of the witnesses and the weight to be accorded to their testimony. Carson v. Cnty. of Drew, 354 Ark. 621, 128 S.W.3d 423 (2003). Further, disputed facts and determinations of witness credibility are within the province of the fact-finder. Hudson, supra. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Found. Telecomms. v. Moe Studio, 341 Ark. 231, 16 S.W.3d 531 (2000).

         At this juncture, we set out a more expansive examination of the proceedings that led to this appeal. The material facts are not in dispute and were largely stipulated. On April 12, 2014, two police officers (Kenneth Baker and Brittney Gunn) were involved in an automobile accident wherein Baker backed his patrol car into the front bumper of Gunn's patrol car. This caused Gunn's push bumper to be out of alignment. After arriving back at the substation, Gunn began to prepare an accident report when Sergeant Phillips told Gunn to discontinue the report. Phillips examined the damage, determining that Baker's vehicle had minor scratches on the rear bumper and that Gunn's vehicle had its push bumper out of place. Phillips believed that the damage could be easily repaired, so he consulted with another officer (Jason Deno). Deno had training and several years of experience in auto body and collision repair. Deno believed that he could repair the damage with tools from his home. Phillips authorized Baker, Gunn, and Deno to take Gunn's vehicle to Deno's home and attempt repair. After about an hour, the three officers reported back to Phillips that the repair attempt was unsuccessful and that a bolt had broken during the attempt. Phillips and Deno then went to the city garage and obtained a replacement bolt from a wrecked police unit.

         Phillips instructed Baker, Gunn, Deno, and a probationary officer riding with Deno (Todd Davis) to meet him at the rear of a nightclub, Electric Cowboy, at its garage area. These officers remained out of service with Phillips's authorization for the few hours they spent at Electric Cowboy. Phillips spoke to the manager at the nightclub, who agreed to help Phillips repair the bumper. In order to put the bumper back into place, they used a rubber mallet to push it and a tow strap attached to a truck to pull it; then they replaced the broken bolt. The manager advised Phillips that the vehicle's broken crossmember needed to be welded back into place. Phillips told the officers that the incident would be reported to Lieutenant Thomas the next day and that if Thomas did not approve of the actions taken, a file on the incident would be generated.

         Deno and Davis became uncomfortable and left the nightclub. The manager welded the crossmember after disconnecting the electrical wires from the bumper, reconnecting the wires afterward. Touch-up paint was applied to the bumper. Phillips, Baker, and Gunn then returned to the police substation.

         On April 13, 2014, Phillips had Lieutenant Thomas examine the push bumper to determine whether an accident file should be completed. Phillips reported that the push bumper had been damaged but that he had repaired the damage. Thomas did not believe the vehicle to be seriously damaged, so Thomas signed a notation of damage in the vehicle's damage book but wrote that no further action was necessary.

         On April 23, 2014, a police officer (Donna Lesher) took this vehicle to an authorized repair location after it was reported that the strobe lights were not working. Lesher discovered that the push bumper had been damaged and repaired in a manner not consistent with LRPD policy. Lesher reported this to Captain Hastings. Thomas overheard the conversation, and Thomas said that the damage resulted from an accident that had happened on April 12, 2014. Phillips heard this conversation as he approached, adding that there was a minor accident and that he had fixed the damage with help from a friend. Hastings ordered Thomas to investigate the situation.

         Phillips later said that he told Thomas on April 23 that he had welded the broken crossmember, but Thomas said that he was unaware of that. Phillips acknowledged that the police patrol unit did not belong at a nightclub for the purpose of repairs, and he acknowledged that he misallocated LRPD manpower by directing the officers to bring the vehicle to Electric Cowboy on the evening of April 12.

         The police chief determined that Phillips had violated two general orders and four rules and regulations of the LRPD. The violations concerned requirements that any accident resulting in damage be followed by an accident report with certain protocol for vehicle repairs; that no repair be made without the permission of the police chief; and that officers refrain from conduct unbecoming an officer or in dereliction of their duty. The police chief believed that Phillips was trying to help his subordinate officers and did not have bad intentions, that he had exercised bad judgment, that he was honest and took responsibility for his actions, and that he had a good ...


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