City of Little Rock v. Muncy , 526 S.W.3d 877 ( 2017 )

Cite as 2017 Ark. App. 412ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-16-471
CITY OF LITTLE ROCK, LITTLE Opinion Delivered August 30, 2017
ROCK CIVIL SERVICE
COMMISSION, and LITTLE ROCK APPEAL FROM THE PULASKI
FIRE DEPARTMENT COUNTY CIRCUIT COURT,
APPELLANTS SECOND DIVISION
[NO. 60CV-15-2916]
V. HONORABLE CHRISTOPHER
CHARLES PIAZZA, JUDGE
CHRIS MUNCY REVERSED ON DIRECT APPEAL;
APPELLEE AFFIRMED ON CROSS-APPEAL
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.
Cite as 2017 Ark. App. 412I. 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
2
Cite as 2017 Ark. App. 412sample 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.
1
A completely clean sample will have a value of -100, and anything over zero is
considered positive.
2
The GC/MS test’s cutoff for a positive test is 500 ng/ml.
3
Muncy, who denied ever taking methamphetamine, subsequently sought additional
testing at his own expense. His independent test, however, was also positive for
methamphetamine.
3
Cite as 2017 Ark. App. 412Muncy 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
4
Cite as 2017 Ark. App. 412fired 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] unintentional, he
tested positive for drugs and was terminated.” Assistant Chief of Operations Douglas Coney
added that the policy was “basically a zero-tolerance policy, [and] if you flunked it, whether
it’s a listed drug or not, you’re fired.”
Both the LRFD and Muncy presented testimony concerning the drug testing that led
to Muncy’s termination. Brent Staggs, a medical review officer, testified for the LRFD.
Staggs reviewed Muncy’s drug test and a list of prescription medications that Muncy was
taking. Staggs acknowledged that Muncy had a prescription for a Vicks inhaler. According to
Staggs, however, the Vicks inhaler contained only the L-isomer of methamphetamine and not
the D-isomer. Staggs testified that the Vicks inhaler thus could not explain Muncy’s positive
drug test. In fact, Staggs did not see any prescription on Muncy’s list of medications that
would contain the D-isomer and that would explain Muncy’s positive test for
methamphetamine.
Similarly, Staggs noted that Muncy had a prescription for Adderall, which could show
up on a drug test as amphetamine. Staggs opined that this would explain Muncy’s positive
result for amphetamine; he testified, however, that although methamphetamine can break
down into amphetamine, “amphetamine can never turn into methamphetamine.” Staggs said
he was unable to find any medical explanation for Muncy’s results. Staggs also pointed out
that the amount of methamphetamine in Muncy’s sample—more than 17,000 ng/ml—was
5
Cite as 2017 Ark. App. 412“fairly high.” Given that anything over 500 ng/ml is positive, Staggs pointed out that Muncy
was thirty times over the cutoff.
In response to this testimony, Muncy presented the testimony of Dr. Alex Pappas. Dr.
Pappas said that when he was contacted to testify, he was told there was something wrong
with the test, but he could not find anything wrong with it, saying it was “scientifically a
good-looking test.” Dr. Pappas acknowledged that the test had been properly confirmed, but
he was bothered by its inconsistency with Muncy’s history and his past behavior. He
suggested that it was possible that Muncy “could have only recently started using
methamphetamine,” and it was “possible he could be the unlucky guy who got tested not
long after he started a new drug.” Dr. Pappas opined that the supplements Muncy used to
increase his sex drive would “probably not be something he could have ordered on the
internet that has a derivative of methamphetamine in it.”
Muncy also presented testimony concerning his character. Muncy testified about his
employment history, noting that he had been in the Navy, had been a commercial diver for
a nuclear power plant, and had worked as an EMT. He said that he had never failed a drug
test at any previous place of employment. He adamantly denied ever taking
methamphetamine, although he conceded that he had been taking testosterone injections for
a while to enhance his sex life. He could not deny the positive drug test, however, and he
could offer no explanation for it. Muncy called several witnesses on his own behalf, including
his captain, several fellow firefighters, and friends. Each one testified that Muncy gave no
indication in his behaviors or actions that he was on methamphetamine or any other kind of
6
Cite as 2017 Ark. App. 412drug. His coworkers testified that they had never seen him do anything or behave in any way
that caused them to fear for their safety. Even Assistant Chief Coney agreed that Muncy was
a good firefighter, and Chief Summers acknowledged that he had been shocked when he
heard that Muncy had tested positive and said that he had no indication from Muncy’s
behavior or demeanor that he was on methamphetamine.
At the conclusion of the trial, the court ruled from the bench that Muncy’s positive
drug test was “pretty obvious and it’s conclusive.” The court questioned, however, whether
the “situation [was] so severe . . . that the zero tolerance policy is justified.” The court stated
that it understood the purpose of the policy, but given Muncy’s history and good character,
it concluded that the sanction of termination was too severe. The court therefore determined
that a thirty-day suspension and demotion from the rank of apparatus engineer to that of
firefighter would be appropriate.
An order to that effect was entered shortly thereafter. In addition to the thirty-day
suspension and demotion, the court also ordered the LRFD to pay Muncy back pay in the
amount of $44,376.23. The LRFD filed a timely notice of appeal, and Muncy filed a timely
notice of cross-appeal.
II. Standard of Review
The supreme court explained the process for reviewing appeals that arise from actions
before the civil service commission in City of Little Rock v. Hudson, 366 Ark. 415, 236 S.W.3d
509 (2006), as follows:
As noted above, the proceeding underlying this appeal is a decision by the Little
Rock Civil Service Commission. The circuit court reviews decisions of the Civil
7
Cite as 2017 Ark. App. 412Service Commission de novo and has jurisdiction to modify the punishment fixed by
the Commission even if the court agrees that the officer violated department rules and
regulations. City of Van Buren v. Smith, 345 Ark. 313, 46 S.W.3d 527 (2001); City of
Little Rock v. Hall, 249 Ark. 337, 459 S.W.2d 119 (1970). 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. Daley
v. City of Little Rock, 36 Ark. App. 80, 818 S.W.2d 259 (1991); Ark. Code Ann. § 14-
51-308(e)(1)(c) (Repl. 2000). 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. Civil Service
Commission of Van Buren v. Matlock, 206 Ark. 1145, 178 S.W.2d 662 (1944). Although
the transfer from a civil service commission is called an appeal in Ark. Code Ann. 14-
51-308(e)(1) (Supp. 2005), the circuit court proceeding is in the nature of an original
action. Daley, supra.This court then reviews the findings of the circuit court to determine whether
they are clearly against the preponderance of the evidence. City of Van Buren v. Smith,
supra; Tovey v. City of Jacksonville, 305 Ark. 401, 808 S.W.2d 740 (1991). 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. Foundation
Telecommunications v. Moe Studio, 341 Ark. 231, 16 S.W.3d 531 (2000).
Hudson, 366 Ark. at 417–18, 236 S.W.3d at 512.
III. The LRFD’s Appeal
On appeal, both parties concede that the circuit court had the jurisdiction to modify
the punishment meted out by the Commission. The LRFD, however, argues that the circuit
court’s decision to overturn Muncy’s termination vitiates its zero-tolerance drug policy and
was therefore clearly erroneous. In support of its argument, the LRFD cites City of Little Rock
v. Bates, 270 Ark. 860, 607 S.W.2d 68 (Ark. App. 1980). In Bates, police officer Bill Bates was
discharged from the Little Rock Police Department after the department determined that he
had violated numerous sections of its rules and regulations. The Civil Service Commission
upheld the termination, but the Pulaski County Circuit Court ordered Bates to be reinstated.
8
Cite as 2017 Ark. App. 412On appeal, our court held that the circuit court’s decision was clearly erroneous. Specifically,
our court noted that there was uncontroverted evidence that Bates had violated the police
department’s rules and regulations on multiple occasions. Because the evidence clearly
demonstrated that Bates had violated the department’s policies, we held that the circuit court’s
decision was not supported by substantial evidence. Bates, 270 Ark. at 866–67, 607 S.W.2d
at 71–72.
Muncy, in turn, maintains that the circuit court could easily have concluded that
termination was too harsh a sanction. He relies on City of Little Rock v. Hall, 249 Ark. 337,
459 S.W.2d 119 (1970). In Hall, police officer Lester Hall was terminated by the Little Rock
Police Department for slapping a prisoner. The Commission upheld his termination, but the
Pulaski County Circuit Court reduced that sanction to a thirty-day suspension. The supreme
court upheld the circuit court’s decision, primarily because the officer had an exemplary
service record, there was no evidence that he had struck the prisoner with anything other than
an open fist, and he had had previous encounters with the same prisoner “without unusual
event.” Hall, 249 Ark. at 340, 459 S.W.2d at 121. Muncy posits that the same result should
be reached in his case.
We disagree that either case is controlling in the present appeal because neither Bates
nor Hall involved a zero-tolerance policy like the one promulgated by the LRFD.4 Rather,
we consider the facts of this case to be more analogous to the fact situation described in Petty
4
In fact, our research did not reveal a civil service commission appeal in Arkansas
specifically involving a zero-tolerance drug policy like the one in this case.
9
Cite as 2017 Ark. App. 412v. City of Pine Bluff, 239 Ark. 49, 386 S.W.2d 935 (1965). There, the City of Pine Bluff had
an ordinance requiring that all members of its fire department live within the city limits or in
sufficiently close proximity thereto. The appellant, Petty, was indefinitely suspended from the
Pine Bluff Fire Department for moving outside the city limits in violation of the ordinance.5
The supreme court affirmed Petty’s suspension, finding the evidence was overwhelming that
Petty had violated the fire department’s policy to which no previous exceptions had been
allowed. Petty, 239 Ark. at 53–54, 386 S.W.2d at 938. While we find that Petty is helpful, it
is nonetheless not an appeal dealing with a zero-tolerance drug policy.
As stated earlier, we use a clearly erroneous standard of review in appeals from a civil
service commission. We review the circuit court’s findings to determine whether they are
clearly against the preponderance of the evidence. See City of Van Buren, supra. In the present
case, the circuit court made a factual finding that acknowledged the overwhelming evidence
of Muncy’s positive tests for methamphetamine; indeed, the scientific evidence supporting
that finding was uncontroverted.6 The court stated that it understood the purpose of the
policy, but it questioned whether the “situation [was] so severe given that test that the zero
tolerance policy is justified” based on Muncy’s history and good character. We cannot agree.
The LRFD has the authority to govern and regulate its employees. Ark. Code Ann. § 14-51-
302. The LRFD provided legitimate public-policy reasons behind its zero-tolerance policy
5
Petty built a house six miles outside of the city limits after that ordinance went into
effect, but he signed a statement averring that he was a resident of Pine Bluff, using his
brother’s address as his own.
6
The circuit court even noted that the concentration of methamphetamine in Muncy’s
sample was “a fairly high level.”
10
Cite as 2017 Ark. App. 412on drug usage and the necessity for consistency in the application of that policy. Muncy,
despite his good reputation, clearly violated the policy. We are thus left with a definite and
firm conviction that a mistake has been made, see Hudson, supra, and we therefore reverse the
circuit court’s reversal of Muncy’s termination.
IV. Muncy’s Cross-Appeal
In his cross-appeal, Muncy argues that the circuit court should have awarded him
attorney’s fees. Arkansas Code Annotated section 14-51-308(e)(1)(B)(iv) (Repl. 2013)
provides that where an appeal is taken from the civil service commission to circuit court, the
circuit court may award reasonable attorney’s fees to the prevailing party. As we have reversed
the circuit court’s decision, Muncy is no longer the prevailing party, and his argument is
therefore moot.
Reversed on direct appeal; affirmed on cross-appeal.
GLOVER and HIXSON, JJ., agree.
Amy Beckman Fields, Office of the City Attorney, for appellants.
Robert A. Newcomb, for appellee.
11