Burke v. Baton Rouge Metro Airport

712 So. 2d 1028, 1998 La. App. LEXIS 1758, 1998 WL 248323
CourtLouisiana Court of Appeal
DecidedMay 15, 1998
Docket97 CA 0947
StatusPublished
Cited by10 cases

This text of 712 So. 2d 1028 (Burke v. Baton Rouge Metro Airport) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burke v. Baton Rouge Metro Airport, 712 So. 2d 1028, 1998 La. App. LEXIS 1758, 1998 WL 248323 (La. Ct. App. 1998).

Opinion

712 So.2d 1028 (1998)

Dennis BURKE
v.
BATON ROUGE METRO AIRPORT.

No. 97 CA 0947.

Court of Appeal of Louisiana, First Circuit.

May 15, 1998.

*1029 Dawn N. Guillot, Baton Rouge, Anthony Marino, Baton Rouge, for Defendant/Appellant Baton Rouge Metro Airport.

Richard P. Bullock, Baton Rouge, Stephanie Knight, Baton Rouge, for Plaintiff/Appellee Dennis Burke.

Before FOIL, WHIPPLE and KUHN, JJ.

WHIPPLE, Judge.

Defendants, the City/Parish of East Baton Rouge through the Baton Rouge Metro Airport, appeal the trial court's decision granting plaintiff's motion for new trial and setting aside the trial court's original decision affirming disciplinary action taken against Officer Dennis Burke. The trial court originally upheld the Baton Rouge City-Parish Personnel Board's finding that the appointing authority's decision to suspend Officer Dennis Burke for five days without pay for leaving the *1030 Baton Rouge Metro Airport premises during his shift was not arbitrary and capricious. After granting Burke's motion for new trial, the trial court reversed its prior decision and set aside the action of the appointing authority.

For the following reasons, we reverse the trial court and reinstate the original judgment affirming the Personnel Board's decision to uphold the appointing authority's decision to impose a five day suspension without pay against Burke.

FACTS AND PROCEDURAL HISTORY

In February of 1995, Officer Dennis Burke was a permanent classified employee of the City of Baton Rouge, assigned to the Baton Rouge Metro Airport. He had served as a Baton Rouge Police officer for over ten years and had been assigned to the airport for over two years. On February 25-26, 1995, Burke, along with Corporal Richard Franklin, Jr., was assigned to work the 9:00 p.m.-5:00 a.m. shift at the airport. During their shift, both Burke and Franklin were supposed to remain on the airport premises, according to airport rules. However, sometime between 1:00 a.m. and 3:00 a.m., Burke abandoned his post and traveled off the airport premises in an official airport police vehicle. After leaving the airport property, Burke traveled to the Bluebonnet area, approximately 13.6 miles from the airport.[1]

Although no emergency situation involving the airport or the nearby prison occurred during Burke's absence, Captain Milton Thomas, the case investigator, eventually recommended to Ira Ledoux, the Director of Aviation, that Burke be suspended without pay for five days. After appropriate notice and a meeting to allow Burke to respond, Ledoux adopted Captain Thomas' recommendation and imposed the suspension without pay.

Burke appealed the decision of the appointing authority to the Baton Rouge City-Parish Personnel Board. On June 13, 1995, the Board conducted a full evidentiary administrative hearing, and unanimously affirmed the decision of the appointing authority, finding that disciplinary action was warranted and that the suspension imposed was appropriate. Burke then filed a petition for judicial review in the district court, which initially affirmed the decision of the appointing authority and the Personnel Board.

However, the trial court subsequently granted Burke's motion for new trial, finding that based on the "applicable jurisprudence, the court is constrained to follow the rule enunciated by the first circuit court of appeal in the Fisher case." Citing Fisher v. DHHR, Office of Human Development, 517 So.2d 318 (La.App. 1st Cir.1987), the trial court reasoned that no disciplinary action could be imposed absent a showing that some emergency or other event had occurred during Burke's absence. Thus, the trial court reversed its prior holding and vacated the decision of the Board, concluding that the appointing authority's disciplinary action was imposed without legal cause.

From this decision, defendants appeal, assigning as error: 1) the trial court's finding that the Personnel Board's decision was arbitrary and capricious and/or without legal cause and 2) the trial court's holding that the employer was required to prove "actual impairment of the efficiency of the public service" to suspend a civil service employee.

DISCUSSION

Louisiana Constitution Article X, § 8(A) provides, in pertinent part: "No 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." The burden of proof on appeal, as to the facts, shall be on the appointing authority. La. Const. art. X, § 8(A); see Howard v. Housing Authority of New Orleans, 457 So.2d 834, 843 (La.App. 1st Cir. 1984); Jones v. Department of Health and Human Resources, 430 So.2d 1203, 1206 (La. App. 1st Cir.1983).

*1031 Further, the Commission's decision is subject to review on any question of law or fact upon appeal to the court of appeal. La. Const. art. X, § 12(B); Walters v. Dept. of Police of New Orleans, 454 So.2d 106, 113 (La.1984). The standard of review for the appellate court is multifaceted. Historically, when reviewing the Commission's findings of fact, the appellate court is required to apply the manifestly erroneous or clearly wrong standard of review. Walters, 454 So.2d at 113; Khosravanipour v. Department of Transportation and Development, 93-2041, 93-2042, 93-2043, 93-2044, 93-2045, p. 7 (La. App. 1st Cir. 10/7/94); 644 So.2d 823, 826, writ denied, 94-2729 (La.1/6/95); 648 So.2d 930. In evaluating whether the Board's determination as to whether the disciplinary action taken by the Board is based on legal cause and commensurate with the infraction, this court may not modify the Board's order unless it is arbitrary and capricious, as set forth in the Administrative Procedure Act. Bannister v. Department of Streets, 95-0404, p. 8 (La.1/16/96); 666 So.2d 641, 647; Walters, 454 So.2d at 113; Khosravanipour, 93-2041, 93-2042, 93-2043, 93-2044, 93-2045 at p. 7; 644 So.2d at 826-827; Howard, 457 So.2d at 846.

A motion for new trial should be granted when the judgment is clearly contrary to the law and evidence and, in any case, if there is good ground therefor. LSA-C.C.P. arts.1972 and 1973. Louisiana jurisprudence is clear that a new trial should be ordered when the trial court, exercising its discretion, is convinced by its examination of the facts that the judgment would result in a miscarriage of justice. Bush v. Cannata's Supermarket, Inc., 612 So.2d 794, 797 (La. App. 1st Cir.1992). The granting or denying of a motion for new trial rests within the wide discretion of the trial court, and its determination should not be disturbed absent a clear abuse of discretion. Hogan v. State Farm Auto Ins. Co., 94-0004, p. 9 (La.App. 1st Cir. 12/22/94); 649 So.2d 45, 51; writ denied, 95-0215 (La.3/17/95); 651 So.2d 276, 277.

Disciplinary Action and the Need for Actual Impairment

A conclusion of a public body is "capricious" when the conclusion has no substantial evidence to support it or the conclusion is contrary to substantiated competent evidence. The word "arbitrary" implies a disregard of evidence or of the proper weight thereof. Coliseum Square Association v. City of New Orleans, 544 So.2d 351, 360 (La.1989).

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712 So. 2d 1028, 1998 La. App. LEXIS 1758, 1998 WL 248323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burke-v-baton-rouge-metro-airport-lactapp-1998.