Johnson v. Board of Com'rs of Port of New Orleans

• Decision Date: 01 August 1977
• Docket Number: No. 8155,8155
• Citation: Johnson v. Board of Com'rs of Port of New Orleans, 348 So.2d 1289 (La. App. 1977)
• Parties: Albert C. JOHNSON v. BOARD OF COMMISSIONERS OF the PORT OF NEW ORLEANS, an Agency of the State of Louisiana, and State of Louisiana Board of Review for the Department of Employment Security and its Administrator.
• Court: Court of Appeal of Louisiana

Page 1289

348 So.2d 1289

Albert C. JOHNSON v. BOARD OF COMMISSIONERS OF the PORT OF NEW ORLEANS, an Agency of the State of Louisiana, and State of Louisiana Board of Review for the Department of Employment Security and its Administrator.

No. 8155.

Court of Appeal of Louisiana, Fourth Circuit.

Aug. 1, 1977.

Harry A. Rosenberg, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for Board of Commissioners of the Port of New Orleans, defendant-appellant.

Gerald Thos. LaBorde, LaBorde & Brooks, New Orleans, for Albert C. Johnson, plaintiff-appellee.

Before LEMMON, BOUTALL and SCHOTT, JJ.

BOUTALL, Judge.

Defendant employer appeals a judgment of the District Court which reversed the findings of the State of Louisiana Board of Review for the Department of Employment Security that the claimant, Albert C. Johnson, was disqualified from receiving unemployment compensation benefits.

The claimant, Albert C. Johnson, is a patrolman with the Harbor Police Department, Board of Commissioners of the Port of New Orleans. On September 14, 1975 Johnson was arrested in the City of Alexandria and charged with carrying a concealed weapon. At the time of the arrest Johnson was off duty and out of uniform. Thereafter Johnson retained counsel and as a result of plea-bargaining, the charge was reduced from "carrying a concealed weapon" to simply "disturbing the peace". In accordance therewith, Johnson filed bail bond and then forfeited the bond.

Johnson informed his employer the next day of his arrest. In accordance with the employer's procedure Johnson was suspended without pay pending investigation of the charges. After his plea-bargain, on September 22, 1975 Johnson was informed by his employer that he was suspended for a period of thirty days without pay for conduct unbecoming a Harbor Policeman. On October 23, 1975 Johnson was reinstated to his former position as policeman with pay.

On October 16, 1975 plaintiff filed a claim to recover unemployment compensation benefits for the period of his suspension from the Harbor Police Department. Johnson's claim was denied by the claim supervisor for the Louisiana Department of Employment Security on the basis of the employer's contention that the claimant had been suspended without pay for misconduct in connection with his work. Johnson then appealed that denial of his claim to an appeals referee who reversed the denial of benefits by the claim supervisor and stated that it is essential for the misconduct to adversely affect the employee's ability and capacity to perform his duties in an appreciable degree before such misconduct will bar him from recovering such benefits. The appeals referee went on to say "The facts in this case fail to show that the claimant was rendered incapable of performing his duties on the job as a result of his being arrested. There is also a question as to whether or not the claimant was validly charged with carrying a concealed weapon, since he is in fact commissioned to carry fire arms."

Johnson's employer then appealed the decision of the appeals referee to the Board of Review for the Department of Employment Security. The Board of Review examined the record and facts and found that the claimant had acted in a manner that was not becoming to his position as a Harbor Policeman in New Orleans, and that the claimant was guilty of misconduct within the meaning of the act and accordingly ordered that the decision of the appeals referee be reversed and the disqualification be reinstated. ¹ Johnson appealed that finding by the Board of Review to the District Court. The trial judge reviewed the record and determined the question to be whether the degree of misconduct of the plaintiff was such to disqualify him from receiving unemployment compensation benefits. The trial judge found the actions of the claimant to be misconduct, but not to that degree to disqualify him from receiving unemployment benefits. Accordingly, the trial judge reversed the findings of the Board of Review that the claimant was disqualified for benefits.

Appellant contends that the trial court erred when it failed to adhere to the administrative findings of fact rendered by the Board of Review and in finding the claimant entitled to benefits, even though claimant was guilty of misconduct connected with his employment. Further appellant contends that the review by the District Court was restricted to review of questions of law and not the facts. LSA-R.S. 23:1634. ² While we agree with appellant's contention that the District Court's review was restricted to questions of law, we note that judicial review of questions of law includes the determination of whether, under the facts found by the agency, the claimant is or is not as a matter of law entitled to such benefits. Turner v. Brown, La.App., 134 So.2d 384 (1961).

For the purpose of our review, we must first determine if a person suspended from duty without pay is eligible for unemployment benefits. LSA-R.S. 23:1600 says that: "An unemployed individual shall be eligible to receive benefits with respect to any week only if the administrator finds that: * * * (4) he has been unemployed for a waiting period of one week; provided however, that after the unemployed individual has been unemployed for six consecutive weeks or longer he shall be eligible for benefits with respect to such week of waiting period if he is not otherwise disqualified for benefits with respect to such week under the provisions of this Chapter. . . ."

LSA-R.S. 23:1472(19) defines unemployment as: "An individual shall be deemed to be 'unemployed' in any week during which he performs no services and with respect to which no wages are payable to him, or in any week of less than full time work if the wages payable to him with respect to such week are less than his weekly benefit amount. The administrator shall prescribe regulations applicable to unemployed individuals making such distinctions in procedures as to total unemployment, part total unemployment, partial unemployment of individuals attached to their regular jobs, and other forms of short-time work, as the administrator deems necessary."

Thus, it is...