FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTEENTH DIVISION
[NO. 60CV-15-2246] HONORABLE MORGAN E. WELCH, JUDGE
Latimer, Office of City Attorney, for appellants.
A. Newcomb, for appellee.
MARK KLAPPENBACH, JUDGE.
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.
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).
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
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
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.
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
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.
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.
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.
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 ...