Saulny v. New Orleans Police Dep't
| Decision Date | 11 March 2020 |
| Docket Number | NO. 2018-CA-1069,C/W: NO. 2018-CA-1070,2018-CA-1069 |
| Parties | TERRANCE SAULNY v. NEW ORLEANS POLICE DEPARTMENT |
| Court | Court of Appeal of Louisiana — District of US |
TERRANCE SAULNY
v.
NEW ORLEANS POLICE DEPARTMENT
NO. 2018-CA-1069
C/W: NO. 2018-CA-1070
COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA
MARCH 11, 2020
APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS
NO. 8351
Judge Daniel L. Dysart
ON REMAND FROM SUPREME COURT
(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Regina Bartholomew-Woods)
G. Karl Bernard
G. KARL BERNARD & ASSOCIATES, LLC
1615 Poydras Street, Suite 101
New Orleans, LA 70112
COUNSEL FOR PLAINTIFF/APPELLEE
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Elizabeth Robins
DEPUTY CITY ATTORNEY
Isaka R. Williams
ASSISTANT CITY ATTORNEY
Donesia D. Turner
SR. CHIEF DEPUTY CITY ATTORNEY
Sunni J. LeBeouf
CITY ATTORNEY
1300 Perdido Street, Suite 5E03
New Orleans, LA 70112
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED
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In accordance with the directive of the Louisiana Supreme Court in Saulny v. New Orleans Police Dep't, 19-01366 (La. 11/12/19), 282 So.3d 210, remanding this matter for a consideration of the merits of Officer Terrance Saulny's appeal, we have reviewed the record before us and the August 24, 2018 ruling of the Civil Service Commission (the "CSC"), denying Off. Saulny's appeal of his termination.1 For the reasons that follow, we affirm the CSC's decision to terminate Off. Saulny's employment with the New Orleans Police Department ("NOPD").
FACTS AND PROCEDURAL HISTORY
In June 2015, NOPD Off. Terrance Saulny was terminated from his employment with the NOPD following an investigation of an incident which occurred on September 24, 2014. On that date, Off. Saulny had an encounter with a juvenile at the Juvenile Detention Center, where he was then working. The
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encounter was captured by a security camera and, two days later, the NOPD placed Off. Saulny on emergency suspension for 120 days while it investigated the incident. Thirty-eight days of Off. Saulny's suspension was without pay.2
An administrative investigative report was issued, alleging that Off. Saulny had violated several NOPD rules and procedures during his encounter with the juvenile. More specifically, Off. Saulny was accused of violating rules concerning moral conduct, unauthorized force and truthfulness.3 A hearing was then held and by letter dated June 15, 2015, Off. Saulny was notified that the charges regarding moral conduct and unauthorized force were sustained. The penalty for these violations was termination, effective June 11, 2015. Off. Saulny was advised of his right to appeal the decision to the CSC within thirty days.
Off. Saulny appealed the decision of the NOPD to terminate his employment. Hearings were then held on November 2, 2017 and December 8, 2017, before a hearing officer appointed by the CSC. Thereafter, the CSC reviewed the transcript and evidence from those hearings. By judgment dated August 24, 2018, the CSC denied Off. Saulny's appeal with respect to his termination, finding that "[t]he degree of force [he] used far exceeded what was reasonable given the situation and established [his] blatant disregard for the guidelines within the NOPD's use of force policy;" that Off. Saulny's "conduct had a substantial adverse impact on the efficient operations of [the] NOPD;" and
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that "termination is [not] so severe as to constitute arbitrary or capricious discipline."4
Off. Saulny's timely appeal followed.
Standard of review
Under La. Const. Art. X, § 8 (A), "[n]o person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing." That Article further provides that a classified employee against whom disciplinary action has been taken "shall have the right of appeal" at which time, the "burden of proof . . . shall be on the appointing authority." Id. In the appeal, "the appointing authority [here, the NOPD] has the burden of proving, by a preponderance of the evidence: 1) the occurrence of the complained of activity; and 2) that the conduct complained of impaired the efficiency of the public service in which the appointing authority is engaged." Clark v. Dep't of Police, 18-0399, p. 4 (La. App. 4 Cir. 10/10/18), 257 So.3d 744, 747. The CSC must "determine independently from the facts presented whether the legal cause for disciplinary action has been established and, if so, whether that disciplinary action is commensurate with the employee's detrimental conduct." Honore' v. Dep't of Pub. Works, 14-0986, pp. 8-9 (La. App. 4 Cir. 10/29/15), 178 So.3d 1120, 1127, writ denied sub nom. Honore' v. Dep't of Pub. Works, 15-2161 (La. 1/25/16), 185 So.3d 749. The CSC, as the appointing authority in this case, "has the duty and authority to affirm, reverse, or modify the action taken by the Appointing Authority." Id., p. 9, 178 So.3d at 1127.
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The standard of review by an appellate court of a ruling of the CSC is well-settled; an appellate court is to apply a "clearly wrong or manifestly erroneous standard of review" when evaluating the CSC's factual findings. Charles v. New Orleans Police Dep't, 19-0115, p. 2 (La. App. 4 Cir. 6/19/19), 274 So.3d 914, 916, writ denied, 19-01144 (La. 10/8/19), 280 So.3d 589. As we noted in Charles, in "'evaluating the [CSC's] determination as to whether the disciplinary action is both based on legal cause and commensurate with the infraction, the court should not modify the [CSC's] order unless it is arbitrary, capricious, or characterized by abuse of discretion.'" Id., quoting Bannister v. Dep't of Streets, 95-0404, p. 8 (La. 1/16/96), 666 So.2d 641, 647. A decision is considered to be "'arbitrary or capricious' when there is no rational basis for the action taken." Id.
Appellate courts "do not re-weigh the evidence, or make . . . credibility determinations regarding the witnesses, or substitute [their] findings for those of the Commission and its referee." Harrell v. Dep't of Health & Hosps., Office for Citizens with Developmental Disabilities, Pinecrest Supports & Servs. Ctr., 10-0281, p. 11 (La. App. 1 Cir. 9/10/10), 48 So.3d 297, 305, (citing Louisiana Household Goods Carriers v. Louisiana Public Service Com'n, 99-3184 (La.6/30/00), 762 So.2d 1081, 1085). Thus, "[u]nless the record contains insufficient evidence to support the [CSC's] decision or shows that the decision was clearly wrong, the decision must be affirmed. Davis v. Dep't of Police, 590 So. 2d 850, 851 (La. App. 4 Cir. 1991).
DISCUSSION
In this appeal, although Off. Saulny identifies three assignments of error, he makes one argument - that "[t]he [CSC] failed to consider relevant and admissible evidence beyond the dramatic and misleading video footage of the incident and
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therefore reached an erroneous conclusion as to the appropriate punishment due Off. Saulny, if any."5
Having carefully reviewed the record, we do not find the CSC's factual finding, that Off. Saulny violated the use of force policy, to be manifestly erroneous. To the contrary, we find that the CSC did not act arbitrarily and capriciously in reaching this conclusion. We likewise disagree with Off. Saulny that the CSC manifestly erred in finding the penalty imposed to be appropriate for Off. Saulny's infraction. We find that Off. Saulny was disciplined for cause and that, under the circumstances of this case, there was a rational basis for the termination of Off. Saulny's employment with the NOPD. Moreover, on its own, the videotape that captured the incident was sufficient evidence to warrant these findings. We, thus, do not find any evidence that the CSC's decision was arbitrary, capricious, or an abuse of its discretion.
"Rule 2 Section 6 of the NOPD's operations manual states: 'Employees shall not use or direct unjustifiable physical abuse, violence, or force or intimidation against any person.'" Taylor v. Dep't of Police, 13-1367, p. 5 (La. App. 4 Cir. 4/16/14), 140 So.3d 231, 234, writ denied, 14-1032 (La. 9/12/14), 148 So. 3d 931.
At the November 2 and December 8, 2017 appeal hearing, several witnesses were questioned about the videotape of the September 24, 2014 incident and gave their interpretation of what is depicted therein. Former NOPD Officer Andre LeBlanc, who was then a member of the Public Integrity Bureau's Force
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Investigation Team, which investigated the incident, for example, testified that, based on his "experience and [his] reviewing of the use of force that [Off. Saulny] did himself, it appeared to be excessive force based on my experience." Similarly, Deputy Superintendent of the Investigative Support Bureau, Rannie Mushatt, III, who conducted a disciplinary hearing in June 2015, testified that "the force [used by Off. Saulny] was excessive" given that the juvenile "was passively resisting and Officer Saulny struck her with his cuffs, his shackles."6
In reviewing the definitions of active and passive resistance, Deputy Superintendent Mushatt testified that the video showed that the juvenile did not exhibit behavior consistent with active resistance. To the contrary, her actions were consistent with passive resistance. Deputy Superintendent then testified that a violation of the NOPD's policy against unauthorized force, category 3, first offense, carries a penalty ranging from a thirty-day suspension to dismissal.7 Under the circumstances of this case, according to Deputy Superintendent Mushatt,
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Off. Saulny's actions constituted "a serious violation and affected the rights of [the juvenile]," warranting Off. Saulny's dismissal.
In its August 24, 2018 judgment, the CSC agreed with Deputy Superintendent Mushatt that the juvenile "engaged in 'text book' passive resistance by folding her arms and failing to comply with [Off. Saulny's] directions." It then noted that "[a]t no point in time during the thirty-second exchange [did the juvenile] actively resist [Off. Saulny]." On the other hand, "[Off. Saulny] use[d] all of his strength to push [the juvenile] against the wall and shoved his forearm under her chin." He then "[made] matters worse" by using "the four-point restraints as a weapon and...
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