First, as in other civil matters, deference will be given to the factual conclusion of the Commission. In civil service disciplinary cases, an appellate court is presented with a multifaceted review function. Louisiana Department of Highways, 259 La. In reviewing the decisions of a Civil Service Commission, a reviewing court should not reverse a Commission conclusion as to the existence or absence of cause for dismissal, unless the decision is arbitrary, capricious or an abuse of the Commission’s discretion. Department of Police, 558 So.2d 1311 (La. The appointing authority has the burden of proving by the preponderance of the evidence the occurrence of the complained of activity and that the conduct complained of impaired the efficiency of the public service. Department of Police of New Orleans, 454 So.2d 106 (La. The Superintendent said that the appellant indeed had a “great record.’ LAW AND ANALYSIS The Civil Service Commission has a duty to decide independently from the facts presented whether the appointing authority has a good or lawful cause for taking disciplinary action and, if so, whether punishment imposed is commensurate with the dereliction.
It appears that the appellant might have been the first person to be disciplined under the policy. The Superintendent stressed the need for a uniform departmental policy about drinking and driving. He “had no idea” of whether the appellant knew of the policy. The Superintendent said he did not know whether he issued a formal written policy, but that he had made the internal policy clear to the district commanders. However, Superintendent of Police Edward Compass testified at the hearing that it was his policy that any police officer who drives a department vehicle while intoxicated will be terminated. The appellant was a four-year veteran of the NOPD and had never been disciplined. The car was old, had high mileage, and was determined not to be worth repairing. He was still attending weekly classes at the time of the hearing. The appellant later paid for the entire fence, not just the area that had been damaged, for a total cost of $1,700.00, and entered an alcohol rehabilitation program. He was not prosecuted for driving while intoxicated. The breath test revealed a blood alcohol level over the legal limit, specifically. He refused to make a statement at the time. Otherwise, the appellant “was fine.” The appellant refused to take a breathalizer test with regard to a possible criminal prosecution, but he submitted to an administrative field sobriety test. The NOPD investigating officer said that the appellant was coherent but had alcohol on his breath and that his speech was slurred. He said that the Harbor Police Officers who arrived at the scene told him to follow them in his own car to the Harbor Police Department, and he did so. The appellant said the accident happened when it was raining, and that it would not have happened but for the rain. Leaving the party, the car slid in a water puddle and struck a fence at the Cold Storage Warehouse on Alvar Street, causing minor damage to the fence. He said that he had gone to a Christmas party where he had consumed four or five drinks of whiskey without eating.
The appellant was terminated after he used a police department vehicle while he was off-duty.
FACTS Appellant, Andrew Whittaker, seeks review of the Civil Service Commission’s decision dismissing his appeal of his termination with the New Orleans Police Department (NOPD).
201 South Galvez Street New Orleans, LA 70119 COUNSEL FOR PLAINTIFF/APPELLANT REVERSED AND REMANDED. Lombard ****** (Court composed of Judge Joan Bernard Armstrong, Judge David S. 2003-CA-0512 VERSUS * COURT OF APPEAL NEW ORLEANS POLICE DEPARTMENT * FOURTH CIRCUIT * STATE OF LOUISIANA * * ******* APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO.
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