97-0635 La.App. 4 Cir. 9/17/97, Burckel v. Department of Fire

• Decision Date: 17 September 1997
• Citation: 97-0635 La.App. 4 Cir. 9/17/97, Burckel v. Department of Fire, 700 So.2d 553 (La. App. 1997)
• Parties: 97-0635 La.App. 4 Cir
• Court: Court of Appeal of Louisiana

Page 553

700 So.2d 553

97-0635 La.App. 4 Cir. 9/17/97

Craig BURCKEL v.DEPARTMENT OF FIRE.

No. 97-CA-0635.

Court of Appeal of Louisiana Fourth Circuit.

Sept. 17, 1997.

Louis L. Robein, Jr., Robein, Urann & Lurye, Metairie, for Plaintiff/Appellant.

Avis Marie Russell, City Attorney ,Franz L. Ziblich, Chief Deputy City Attorney, Joseph V. DiRosa, Deputy City Attorney, Patrick R. Bossetta, Assistance City Attorney, New Orleans, for Defendant/Appellee.

Before KLEES, BYRNES and PLOTKIN, JJ.

[97-0635 La.App. 4 Cir. 1] PLOTKIN, Judge.

The primary issue in this appeal is whether the City of New Orleans, as appointing authority, presented sufficient evidence to support its dismissal of plaintiffCraig Burckel from his position as firefighter for consumption of alcohol while he was wearing his uniform and representing the fire department, when the City failed to present admissible evidence of his blood alcohol level.A secondary issue relates to the City Civil Service Commission's decision to remand the case to the hearing examiner to allow the City to "to prove up its case" and to allow Burckel an opportunity to cross-examine the evidence against him.

Procedural history

Burckel was dismissed from his position with the New Orleans Fire Department by July 25, 1995 letter from Superintendent Warren E. McDaniels, following an incident in which he was accused of consuming alcohol while working a private "detail" on May 19, 1995.Burckel appealed the dismissal to the City of New Orleans Civil Service Commission, which assigned the case to a [97-0635 La.App. 4 Cir. 2] hearing examiner.A hearing was held November 1, 1995, after which the dismissal was upheld.Burckel then appealed to a three-person panel of the Civil Service Commission, which reviewed the evidence presented at the hearing and issued an opinion remanding the case to the hearing officer.Burckel appeals that decision.

Facts

At the time of the incident which forms the basis of the instant case, Burckel was a 15-year veteran of the New Orleans Fire Department, who had not been subject to any prior disciplinary action during the course of his career.On May 19, 1995, Burckel was a member of a group of New Orleans Fire Department personnel who worked a "fire watch" at the temporary Harrah's Casino, which was then located in the Municipal Auditorium in the City of New Orleans.The record indicates that fire regulations require such "fire watches" when any of the fire safety equipment malfunctions in buildings housing large groups of people.In this instance, the sprinkler system at Harrah's had been damaged as a result of area flooding earlier that month.When fire department personnel worked such "fire watches,"they were considered to be engaged in "off-duty details"; the fire department personnel were paid directly by Harrah's, not by the City of New Orleans.

During the course of the "fire watch" that evening, Burckel was working on the first floor of the casino "in the back."Also working in that area was a cocktail waitress, Caprica McGee, whose testimony was pivotal to the hearing in this case.Ms. McGee stated that during the course of the evening Burckel asked her to bring him a drink containing some type of alcoholic beverage and coke.[97-0635 La.App. 4 Cir. 3] Because she did not want to serve him, she contacted her manager, she said.Her testimony continued as follows:

THE WITNESS:

She told me to serve him.She said that he was not an employee of the casino and to serve him.I don't know if she knew what, you know, that he wanted alcohol, I don't think that I communicated it to her right, so I did serve him.

MR. GINSBERG: [Hearing Officer]

Was he in uniform?

THE WITNESS:

He had a radio, and he was in uniform.The second time I came to him, you know, he asked for a drink and I brought it the second time, and I said, "I'm sorry," because he asked me, you know, what are you, you know, ignoring me.I said, "I'm sorry, I didn't realize that you could drink."And he looked at me, he smiled and said, "I'm not supposed to."And that's when I got my manager and told him to come on the floor, I needed him immediately.Because I didn't feel right about it in the first place.

Ms. McGee then took the problem to David Pakin, who was the food and beverage manager or supervisor at Harrah's at the time of the incident.Ms. McGee also testified that she was positive that Burckel was the firefighter to whom she served two drinks.

Also testifying at the hearing was Kevin Johnson, who was Harrah's shift manager at the time of the incident.Mr. Johnson stated that he was approached by "David," who told him a fireman was drinking on duty.Mr. Johnson then went across the street to the fire station and reported the incident to whoever was in charge.

That report was made to Captain Bill Mothe, who walked across the street to initiate an investigation.When Captain Mothe arrived, he was approached by District Chief Alan J. Melancon, who was supervising the fire watch.Chief Melancon testified that he had just rotated the firemen on the fire watch and that [97-0635 La.App. 4 Cir. 4] Burckel had been sent to the second floor.After being apprised of the situation by Captain Mothe, as well as the "security guy" at Harrah's and Ms. McGee, he called for Burckel to come back down to the first floor, Chief Melancon said.When Burckel walked through the door, Ms. McGee said, "That's him," Chief Melancon said.

Thereafter, Chief Melancon arranged for Burckel to be taken by other fire department personnel for testing to confirm his consumption of alcohol.The drug testing was based on "reasonable suspicion" that Burckel had violated fire department policy, Chief Melancon stated.

The actual testing was done by Maria Miller, Operations Manager at Marine Medical Unit, who testified that she initially performed a "swab test," which registered a "weak positive."Ms. Miller's records showing that Burckel registered positive on the "swab test" were admitted at trial.However, according to Ms. Miller, the "swab test" was only the initial step in determining the level of a person's blood alcohol level.Anytime the swab test registers positive, blood is taken, Ms. Miller stated.Thus, she took Burckel's blood.She testified specifically to following the chain of custody procedures.

Nevertheless, the record is devoid of competent evidence on the results of the blood test because the City attempted to present the testimony of Patricia Pizzo, director of toxicology at Laboratory Specialists, Inc.(LSI), the testing facility where the blood sample was sent.However, because Ms. Pizzo was not actually involved in the steps of the testing procedure, the hearing examiner disallowed both Ms. Pizzo's testimony on the results of the blood test and the "litigation package" offered in conjunction with her testimony.SeeSciortino v. Department of Police, 94-0356(La.App. 4th Cir.9/29/94), 643 So.2d 841.

[97-0635 La.App. 4 Cir. 5] The testimony of two witnesses was offered by Burckel at the hearing: his own testimony and the testimony of Barry D'Angelo, New Orleans Fire Department Captain. Captain D'Angelo, who supervised Burckel at the time of the incident, rated Burckel's job performance as a firefighter as "excellent," and said that Burckel was very dependable, an all-around outstanding fireman.Captain D'Angelo was also present at Harrah's on the night of the incident and heard Ms. McGee identify Burckel as the firefighter who had requested two alcoholic beverages.Burckel did not appear to be intoxicated or under the influence of alcohol at the time, Captain D'Angelo said.

Burckel emphatically denied that he consumed alcohol while operating the detail at Harrah's on May 19, 1995.He admitted ordering cokes from Ms. McGee, but said that he had not ordered alcohol.

Issues presented

On appeal, Burckel contests the decision of the commission, arguing that his dismissal should have been reversed and he should have been reinstated because the appointing authority failed to present the results of the blood alcohol test.The City of New Orleans argues, on the other hand, that it presented sufficient evidence to support its decision to terminate Burckel even in the absence of evidence of the blood test result.Both parties contest the commission's decision to remand the case to the hearing officer to allow the City to properly present the results of the blood alcohol test and to allow Burckel the opportunity to cross-examine that evidence.

Sufficiency of the evidence

[97-0635 La.App. 4 Cir. 6] Generally, an appointing authority seeking to discipline a civil service employee carries the burden of demonstrating, by a preponderance of the evidence, that the conduct of the person disciplined "did in fact impair the efficiency and orderly operation of the public service."Newman v. Department of Fire, 425 So.2d 753, 754(La.1983);Montegue v. City of New Orleans Fire Department, 95-2166(La.App. 4th Cir.5/29/96), 675 So.2d 810, writ denied, 96-1707(La.10/4/96), 679 So.2d 1389.Importantly, the standard for determining whether the appointing authority has carried its burden of proof is preponderance of the evidence.

Presented into evidence at trial was City of New Orleans, Department of Fire, Standard Operating Procedure Number 2/06-P-01-91, relative to substance abuse testing.Section 1.0 of that document, under the heading "ALCOHOL," reads, in pertinent part, as follows:

Employees shall report to work free from the influence and odor of alcoholic beverages.No alcoholic beverages shall be brought into or consumed on Fire Department premises or carried in or consumed in...