Newman v. Department of Fire

• Decision Date: 10 January 1983
• Docket Number: No. 82-C-1536,82-C-1536
• Citation: Newman v. Department of Fire, 425 So.2d 753 (La. 1983)
• Parties: Allen A. NEWMAN v. The DEPARTMENT OF FIRE.
• Court: Louisiana Supreme Court

Page 753

425 So.2d 753

Allen A. NEWMAN v. The DEPARTMENT OF FIRE.

No. 82-C-1536.

Supreme Court of Louisiana.

Jan. 10, 1983.

Salvador Anzelmo, City Atty., Galen S. Brown, Deputy City Atty., Charles J. Willoughby, Asst. City Atty., for applicant.

Louis L. Robein, Jr., Barker, Boudreaux, Lamy, Gardner & Foley, New Orleans, for respondent.

BLANCHE, Justice.

We granted writs to review the action of the court of appeal, 413 So.2d 225, in modifying the disciplinary action taken by the appointing authority and affirmed by the New Orleans Civil Service Commission against a former captain with the New Orleans Fire Department. Captain Allen Newman received a 60 day suspension without pay and was demoted to the rank of firefighter and transferred to another station after leaving his post for an hour and forty-five minutes, during which time his unit was required to respond to an alarm. The court of appeal maintained the 60 day suspension and transfer but reversed the demotion, being of the opinion that the punishment was excessive. We also wanted to examine whether the court of appeal had exceeded its authority in modifying the penalty imposed without remanding the matter to the Commission for reimposition of the proper disciplinary measures. We find it unnecessary to address squarely this latter issue, however, because the action of the court of appeal in reversing the imposed penalty was contrary to the law and the evidence. In our opinion, because the plaintiff never met the threshold requirement of showing that the penalty had been imposed arbitrarily and capriciously, the penalty should not have been modified on appeal. Accordingly, we need not determine whether the matter should have been remanded to the Commission.

These proceedings arose out of the following set of circumstances: Allen Newman, a nineteen year veteran of the force with the rank of captain, left the Algiers firehouse where he and two other firemen were on duty as a "ladder unit" in the early morning hours of October 5, 1980 in order to obtain a meal. He was accompanied by another fireman, and the two were gone for approximately an hour and forty-five minutes. The two remaining unit members were sleeping at the time and did not discover Newman's absence until they prepared to "roll" on an alarm. A superior officer discovered Newman's absence when the under-manned unit became involved in a traffic accident on the way back to the station. Fire Superintendent William McCrossen subsequently disciplined Newman by suspending him from the force for 60 days, demoting him to the rank of firefighter, and transferring him to another fire station.

The appropriate standard of appellate review of actions by the Civil Service Commission is to determine whether the conclusion reached by the Commission was arbitrary or capricious. Merchant v. Department of Finance, 391 So.2d 587 (La.App. 4th Cir.1980); cf. LSA-R.S. 49:964(G)(5). Disciplinary action against a civil service employee will be deemed arbitrary and capricious unless there is a real and substantial relationship between the improper conduct and the "efficient operation" of the public service. The appointing authority (Superintendent) must demonstrate, by a preponderance of the evidence, that the conduct did in fact impair the efficiency and orderly operation of the public service. La. Const. art. X, § 8; Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962); Thornton v. Dept. of Health and Human Resources, 394 So.2d 1269 (La.App. 1st Cir.1981); Rodriguez v. Board of Commissioners, Port of New Orleans, 344 So.2d 436 (La.App. 1st Cir.1977). As in other civil matters, deference should be given on appellate review to the factual conclusions of the Commission. Sanders v. Dept. of Health and Human Resources, 394 So.2d 629 (La.App. 1st Cir.), writs denied, 399 So.2d 602 (La.1981). We are of the opinion that the appointing authority demonstrated by a preponderance of the evidence that the conduct of Newman did in fact impair the efficient and orderly operation of the fire department. Therefore, the action of the Commission in imposing such disciplinary measures may not be characterized as arbitrary and capricious, and the court of appeal erred in so finding.

In its reasons for reversing Newman's demotion, the court of appeal relied heavily on the testimony of Newman that men from other companies or units were routinely interchanged to fill a vacancy on a short-manned unit should a member of that unit have become absent. The court believed Newman's "primary mistake [to have been] leaving the company house without notifying the other members of his unit...." In our opinion, this factual determination, which...