Evangelist v. Department of Police

• Decision Date: 24 February 2010
• Docket Number: No. 2008-CA-1375.,2008-CA-1375.
• Citation: 32 So.3d 815
• Parties: Robert EVANGELIST v. DEPARTMENT OF POLICE.
• Court: Court of Appeal of Louisiana — District of US

32 So.3d 815

Robert EVANGELIST v. DEPARTMENT OF POLICE.

No. 2008-CA-1375.

Court of Appeal of Louisiana, Fourth Circuit.

September 16, 2009.

Order Granting Rehearing September 25, 2009.

Opinion on Rehearing February 24, 2010.

COPYRIGHT MATERIAL OMITTED

Eric J. Hessler, Meridian, MS, for Robert Evangelist.

Richard J. Richthofen, Jr., Richthofen & Associates, L.L.C., New Orleans, LA, for Department of Police.

(Court composed of Judge JAMES F. McKAY, III, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).

PAUL A. BONIN, Judge.

Robert Evangelist, a New Orleans police officer, appealed his termination by the Superintendent of Police, Warren Riley, to the New Orleans Civil Service Commission. The Commission denied his appeal. He filed an appeal in this court from that denial. For the reasons which follow, we reverse and render.

I: FACTUAL BACKGROUND

Mr. Evangelist was a classified employee with permanent status in the New Orleans civil service system. He had been employed as a police officer since March 16, 2003, and was designated as a Police Officer I. On the evening of October 8, 2005, he and his fellow officer Lance Schilling were on foot patrol duty in the French Quarter of New Orleans, on Bourbon Street, near the corner of Conti Street. Two mounted policemen were nearby in the street. A post-Hurricane Katrina curfew remained in effect for the city struggling to return to normal business and activity in the French Quarter and elsewhere, after the storm and flooding.

Robert Davis, a visitor to the city, approached the rear of one of the police horses, a charged conversation between him and the police officers erupted and Davis touched Evangelist's chest. Evangelist and Schilling attempted to subdue and handcuff Davis, who clutched the iron grillwork on a storefront to resist being handcuffed. Two unidentified FBI officers entered the struggle and one of them brought Davis to the sidewalk,¹ causing Davis' head to strike the pavement, sustaining injury. Eventually Davis was restrained and, handcuffed, placed in a EMS ambulance called to the scene to handle the head injury, which had stopped bleeding before the EMT arrived. The EMT evaluated Davis, whom she found to be alert, oriented and awake. Davis was subsequently taken to the temporary site for handling arrestees, the Greyhound Station, for booking.

The encounter occurred about six weeks after Hurricane Katrina. Mr. Davis testified that he was in New Orleans to check on his property. He had ventured from his hotel room near the perimeter of the French Quarter in search of cigarettes. Parts of the encounter between the officers and Mr. Davis were captured on videotape, possibly by more than one source,² and were broadcast locally and nationally.

An internal investigation was initiated by the Public Integrity Bureau of the police department. Following the investigation, a departmental hearing was conducted by a deputy superintendent. On December 21, 2005, immediately upon the conclusion of the hearing, Superintendent Riley, the Appointing Authority, issued to Mr. Evangelist a letter of termination, which included other disciplinary actions against Mr. Evangelist and set forth specific charges on which the termination was based.

Mr. Evangelist appealed his termination and the other discipline to the New Orleans Civil Service Commission. A referee assigned by the Commission conducted an evidentiary hearing and issued a report recommending to the Commission that the appeal be granted because the Appointing Authority failed to prove the charges against Mr. Evangelist. The Commission did not conduct any further hearings, but, on August 27, 2008, rendered its decision denying the appeal. It is from that decision that Mr. Evangelist appeals to this court.

II: ADMINISTRATIVE PROCEEDINGS

"No person who has gained permanent status in the classified . . . city service shall be subjected to disciplinary action except for cause expressed in writing." La. Const., art. X, § 8(A); La. Const. art. X, § 1(B). New Orleans police officers are included in the protection guaranteed by this provision. Walters v. Dept. of Police of New Orleans, 454 So.2d 106, 112 (La. 1984).³ "Legal cause exists whenever an employee's conduct impairs the efficiency of the public service in which the employee is engaged." Cittadino v. Dept. of Police, 558 So.2d 1311, 1315 (La.App. 4th Cir. 1990).

The U.S. Supreme Court considers this type of tenured civil service employment to be a property right which is protected by the Due Process Clause of the U.S. Constitution. The Supreme Court in Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), held:

The essential requirements of due process. . . are notice and an opportunity to respond. . . . The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story.

Further, the Loudermill Court explained: "the point is straightforward: the Due Process Clause provides that certain substantive rights — life, liberty, and property — cannot be deprived except pursuant to constitutionally adequate procedures . . . the right to due process `is conferred not by legislative grace but constitutional guarantee.' citation omitted." Id. at 541, 105 S.Ct. 1487.

It is a basic precept of our system of justice, fair play, and due process that one accused—of a crime, an administrative breach of conduct or code violation, or a civil tort—be given notice of that which he or she is alleged to have done or failed to have done. Thus our jurisprudence has required that written notice be given to a public employee. See La. Const. art. X, § 8; Williams v. Dept. of Property Mgmt., 02-1407, p. 2 (La.App. 4 Cir. 4/16/03), 846 So.2d 102, 104; Riggins v. Dept. of Sanitation, 92-1921 (La.App. 4th Cir.1993), 617 So.2d 112. In Webb v. Dept. of Safety & Permits, 543 So.2d 582 (La.App. 4th Cir. 1989), we held that "notice of the charges should fully describe the conduct complained of . . . to enable the employee to fully answer and prepare a defense." More recently, in Williams the City terminated the plaintiff, a city motor vehicle examiner, on the basis of her alleged alteration of her time card for Friday, April 13, 2001. This incident was the only matter discussed at her pre-termination hearing. After the hearing, two other incidents of payroll fraud were discovered, and Williams was terminated. The termination letter listed three separate occasions of payroll fraud. We stated:

Since the Department of Property Management used these other two incidents of payroll fraud to reach its decision to terminate plaintiff's employment, the plaintiff was entitled to notice of these additional charges and an opportunity to present a defense in regardssic to these additional charges. The requirements of La. Const. Art. 10 § 8 and Loudermill were not met.

Id. at p. 5, 846 So.2d 102 at 105.

In the case at bar, on the day of the departmental hearing, the Appointing Authority issued a letter sustaining the charges⁴ and terminating Mr. Evangelist.⁵ The Appointing Authority cannot, as noted above, subject Mr. Evangelist to any disciplinary action "except for cause expressed in writing." La. Const., art. X, § 8(A). The factual basis for the sustained charges was set out in that letter:

. . . on or about October 8, 2005, you were involved in a physical altercation with Mr. Robert Davis. A video of the incident captured you striking Mr. Davis in the torso while he was lying on the ground with three other police officers holding him down.

Mr. Evangelist timely exercised his constitutional right to an appeal from the Appointing Authority's disciplinary action to the New Orleans Civil Service Commission. La. Const., art. X, § 8(A).

The Commission has "the exclusive power and authority to hear and decide all removal and disciplinary cases . . ." La. Const., art. X, § 12(B); Pope v. New Orleans Police Dept., 04-1888 (La.App. 4 Cir. 4/20/05), 903 So.2d 1. Before the Commission, "the burden of proof on appeal, as to the facts, shall be on the appointing authority." La. Const., Art. X, § 8(A) (emphasis added); Walters, supra, at 112-13. "The appointing authority must prove by a preponderance of the evidence the occurrence of the complained of activity and that the conduct impaired the efficient operation of the public service. Newman v. Dept. of Fire, 425 So.2d 753, 754 (La.1983); Cittadino, 558 So.2d at 1315 (La.App. 4 Cir.1990)." Barquet v. Dept. of Welfare, 620 So.2d 501, 505 (La. App. 4th Cir.1993) (emphasis added);⁶ Cure v. Dept. of Police, 07-0166, p. 2 (La. App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, citing Marziale v. Dept. of Police, 06-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767.

The Commission assigned the appeal to its referee: "The Commission may appoint a referee to take testimony, with subpoena power and power to administer oaths to witnesses." La. Const., art. X, § 12(B). After hearing testimony and considering other evidence, the referee issued a written report on February 25, 2008, which concluded: "The Appointing Authority has failed to meet its burden of proof that the Appellant violated any internal rule. Based on the foregoing, the appeal should be granted."

Other than the evidentiary proceeding before its referee, the Commission did not conduct any further evidentiary hearings. On August 27, 2008, the Commission rendered its decision denying the appeal of Mr. Evangelist from the Appointing Authority's termination of him as well as the ten-day suspension for violation of professionalism. Mr. Evangelist then timely appealed to this court.

The Commission's decision is subject to appellate review on any question of law or fact, determining if its order was arbitrary, capricious, or characterized by an abuse of discretion. La. Const. Art. Art., § 12(B); Barquet, 620 So.2d at 505; Cure, 07-0166 at p. 2, ...