Marullo v. New Orleans Police Dept.
| Decision Date | 07 February 1966 |
| Docket Number | No. 2086,2086 |
| Parties | Frank A. MARULLO v. NEW ORLEANS POLICE DEPARTMENT. |
| Court | Court of Appeal of Louisiana — District of US |
F. Irvin Dymond, New Orleans, for plaintiff-appellant.
Alvin J. Liska, City Atty., and Beuker F. Amann, Asst. City Atty., for defendant-appellee.
Before McBRIDE, YARRUT and HALL, JJ.
Frank A. Marullo, a police lieutenant with civil service status, was suspended and subsequently discharged by the Superintendent of New Orleans Police for certain alleged acts of serious misconduct. He appealed from the order of suspension to the Civil Service Commission of the City of New Orleans on December 12, 1963, and on February 14, 1964, appealed from the order of discharge in an effort to have himself reinstated to his former position of lieutenant. Both appeals were consolidated by the Commission.
On several occasions the Commission set the appeals down for hearing, but due to the poor health and physical condition of Marullo, they were not heard. Ultimately the Commission dismissed the appeals. Marullo, under Const.1921, art. 14, sec. XV(O)(1), then appealed to this court from the order of dismissal. We held in Marullo v. New Orleans Police Department, La.App., 169 So.2d 693, that in view of the medical evidence presented to the Commission, it could not have reasonably concluded that Marullo's condition would permit him to testify and undergo interrogation. It was our opinion that the Commission abused its discretion in refusing to grant a further continuance and in dismissing the appeals.
Upon remand of the appeals to be proceeded with in conformity with law, the Commission set them for hearing several times and on each occasion granted a continuance because of Marullo's physical inability to appear and testify.
Finally counsel for the City of New Orleans, the appointing authority, filed a motion to dismiss the appeals. A hearing on the appeals was reset for July 8, 1965, at which time Marullo applied for another continuance which was denied; thereupon the Commission entered its order dismissing the appeals. Again Marullo took an appeal from the order of dismissal to this court. That appeal is now before us for consideration.
Marullo, seriously ill, suffers from a heart condition, and the medical testimony is clear and unequivocal to the effect that the rigors of interrogation and the attendant excitement could precipitate death. His physician in a last report to the Commission stated this:
'As in my prior letters, I do not feel that his condition has improved and again strongly recommend that he not subject himself to the stress of interrogation.'
The physician would make no prognosis. Nor could he say what would be the probable span of Marullo's life if there be no recovery .
Marullo is charged with serious acts of misconduct, and these led to his suspension and later to his expulsion from the police force. This court was sympathetic with his plight and desired that he have every opportunity to vindicate himself--hence, in the former appeal (169 So.2d 693) our reversal of the order which dismissed the appeals and the remand of the matter to the Civil Service Commission for further proceedings.
By the same token, some consideration should now be shown by the court to the City of New Orleans. The burden of proof in appeals to the Civil Service Commission as to the facts shall be on the employee. Const.1921, art. 14, sec. XV, (N)(1).
The Civil Service Commission has a broad power to make rules, which have the effect of law, in order to...
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