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Bouterie v. Department of Fire
Citations: 410 So. 2d 340; 1982 La. App. LEXIS 6817Docket: No. 12590
Court: Louisiana Court of Appeal; February 8, 1982; Louisiana; State Appellate Court
Appellant Captain Robert A. Bouterie was disciplined by District Chief Raymond A. Schwankhart following a confrontation during an employment-related discussion. Bouterie expressed frustration over perceived ridicule and harassment, suggesting a violent resolution to the ongoing issues. Consequently, he was suspended under Section 12:06 of departmental regulations, which mandates respect and civility among officers. Later that day, his suspension was lifted pending further investigation. After an investigation by the Board of Internal Affairs, Bouterie received a 14-day suspension, which was appealed alongside his initial suspension. The Civil Service Commission found him guilty of violating Section 12:06 but reduced the suspension to one week, concluding that while both parties' accounts were similar, Bouterie's own admission confirmed the confrontation and his threatening remarks. Bouterie argued that his statements constituted protected speech under the First Amendment and claimed that Section 12:06 represented an imperfect obligation, citing the case of Callaghan v. Department of Fire, where a fireman's remarks during a private meeting were deemed protected speech. The Court in Callaghan reversed a dismissal based on the premise that enforcing such an apology was legally unfounded and merely a matter of enforcing "good manners." The Callaghan decision was considered, but the Dumez v. Houma Municipal Fire Police case was found more applicable. In Dumez, a police lieutenant was discharged for discourtesy after using profanity in front of superiors, based on a statute mirroring a rule regarding discourteous conduct. The Dumez court addressed the balance between protected speech and the need for reasonable regulation in public interest, citing that the operation of a police department necessitates restraint on employee speech to ensure efficiency and discipline. Although the Fire Department is not military, its hierarchical structure requires discipline to maintain public safety, particularly in crises. The Commission upheld disciplinary actions against Captain Bouterie for disrespectful behavior towards a superior, confirming that such actions could adversely affect public interest. The City contended the Commission erred in reducing the penalty imposed by the appointing authority. Legal precedent asserts that disciplinary changes can only occur if the appointing authority fails to show sufficient cause. Civil service protections require written cause for disciplinary actions. The Commission determined that a one-week suspension was justified due to the appellant's disrespectful comments, but found insufficient cause for a three-week suspension, based on conflicting testimonies regarding the incident. The Commission’s authority includes modifying penalties, and its decision to reduce the suspension was deemed appropriate, leading to the affirmation of its findings. Judge Barry dissented with written reasons.