Burst v. Bd. of Com'rs Port of New Orleans

646 So. 2d 955, 93 La.App. 1 Cir. 2069, 1994 La. App. LEXIS 2657, 1994 WL 546180
CourtLouisiana Court of Appeal
DecidedOctober 7, 1994
Docket93 CA 2069
StatusPublished
Cited by36 cases

This text of 646 So. 2d 955 (Burst v. Bd. of Com'rs Port of New Orleans) 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
Burst v. Bd. of Com'rs Port of New Orleans, 646 So. 2d 955, 93 La.App. 1 Cir. 2069, 1994 La. App. LEXIS 2657, 1994 WL 546180 (La. Ct. App. 1994).

Opinion

646 So.2d 955 (1994)

Roy E. BURST, Jr.
v.
BOARD OF COMMISSIONERS, PORT OF NEW ORLEANS.

No. 93 CA 2069.

Court of Appeal of Louisiana, First Circuit.

October 7, 1994.
Rehearing Denied December 27, 1994.

*956 Joel P. Loeffelholz, New Orleans, for appellant Roy E. Burst, Jr.

Cynthia J. Thomas, New Orleans, for appellee Bd. of Com'rs, Port of New Orleans.

Robert R. Boland, Jr., Baton Rouge, for Herbert L. Sumrall, Director, Civil Service Com'n.

Before LOTTINGER, C.J., and SHORTESS and CARTER, JJ.

CARTER, Judge.

This is an appeal of a decision of the Civil Service Commission (Commission).

FACTS

Roy E. Burst, Jr. was employed by the Board of Commissioners of the Port of New Orleans (the Board) as a Facility Assistant Maintenance Manager 3 and was serving with permanent status. By letter dated May 26, 1992, over the signature of J. Michael Orlesh, Jr., Director of Corporate Affairs and Delegated Appointing Authority for the Board, Burst was advised that he was being removed from his position, effective at the close of business on June 5, 1992. As cause for his termination, the letter charged Burst with specific instances of misuse of Board property, abuse of employees, and general management failures. By letter dated June 15, 1992, Burst indicated that he wished to appeal the termination because the "information used was not based on reality, but conjecture, contrived stories, and situations" over which he had no "reasonable control."

*957 On November 2 and 5, 1992, public hearings were held before a referee appointed by the Commission. In a decision dated December 16, 1992, the referee reversed Burst's termination, finding that the charges against him were not supported by the testimony and evidence presented at the hearing. The referee ordered that Burst be reinstated to his position, effective June 5, 1992, and that he receive back pay, plus interest, subject to an offset in favor of the Board for wages earned and/or unemployment benefits received during the period of his removal. The referee also ordered that the termination letter be removed from Burst's personnel record.

On December 29, 1992, the Board filed with the Commission an application for review of the referee's decision. On March 5, 1993, the Commission granted the Board's application for review and ordered that a record and transcript of the proceedings before the referee be prepared and submitted for review. On July 22, 1993, the Commission reversed the decision of the referee, thereby upholding the termination of Burst's employment.

On August 11, 1993, Burst filed with this court a petition for appeal of the decision of the Commission. On appeal, Burst assigns the following specification of error:

The Civil Service Commission erred when, based upon a cold transcript, it made credibility and factual determinations, tried the case de novo on the record alone and reversed the referee (fact finder) on the facts by substituting its own interpretation of the facts and evidence and its own judgment for that of the fact finder when the record more than supports the fact finder's (referee) decision.

REVIEW OF THE COMMISSION'S DECISION

Under LSA-Const. art. 10, § 12(A), the State Civil Service Commission has the exclusive power and authority to hear and decide all removal and disciplinary cases, and the Commission may appoint a referee to take such testimony, hear, and decide such cases. The decision of a referee is subject to review by the Commission on any question of law or fact upon the filing of a timely application for review with the Commission. LSA-Const. art. 10, § 12(A). Civil Service Rule 13.36(f) provides that, after the Commission considers the application for review, along with the pleadings and exhibits, it may do any of the following:

1. Remand the appeal with instructions to the referee; or
2. Hold new hearings or take additional evidence or both, and render its own decision thereon.
3. Reverse or modify the Referee's decision on an issue of law.
4. Affirm the Referee's decision by denying the application for review.
5. Listen to pertinent portions of the sound recordings of the proceedings conducted before the Referee or read and review the transcript of the proceedings before the Referee, and, thereafter, reverse or modify the Referee's decision on an issue of fact, and/or take any of the actions specified in 1 through 4 above.

In Wheeler v. Department of Public Safety and Corrections, Washington Correctional Institute, 544 So.2d 66, 67 (La.App. 1st Cir.1989), this court was presented with the issue of what standard of review is applicable to the Civil Service Commission when it reviews a decision of a referee. In Wheeler, 544 So.2d at 67, the court stated as follows:

La. Const. art. 10, § 12(A) grants to the State Civil Service Commission the "exclusive power and authority to hear and decide all removal and disciplinary cases...." As an aid in the performance of its constitutional "power and authority," the Commission is authorized to appoint "a referee, with subpoena power and power to administer oaths, to take testimony, hear, and decide removal and disciplinary cases." The constitution further provides that the decision of the referee is subject to review by the Commission on any question of law or fact.
The constitution does not provide for a standard of review for the Commission when reviewing decisions of a referee. *958 Appellant suggests in argument that we impose a standard of review on the Commission. However, inasmuch as the State Civil Service Commission is created by the constitution and has the authority to adopt rules which have the effect of law, La. Const. art. 10, § 10(A)(4), we conclude that the Commission is the proper party to determine if a standard of review should be applicable.

We have reviewed the Civil Service Rules and find that the Civil Service Commission has not yet promulgated a rule with regard to the Commission's standard of review when reviewing the decision of a referee. Thus, as we stated in Wheeler, we are not the proper party to determine whether a standard of review should be applicable when the Civil Service Commission reviews a decision of a referee.

The final decision of the Commission is subject to review by the court of appeal on any question of law or fact. LSA-Const. art. 10, § 12(A). A reviewing court should not disturb the factual findings made by the Commission in the absence of manifest error. Walters v. Department of Police of City of New Orleans, 454 So.2d 106, 113 (La.1984); Greenleaf v. DHH, Metropolitan Developmental Center, 594 So.2d 418, 427 (La.App. 1st Cir.1991), writ denied, 596 So.2d 196 (La.1992). In Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993), the court indicated that, in order to reverse a factual finding made by the trier of fact:

(1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and

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Bluebook (online)
646 So. 2d 955, 93 La.App. 1 Cir. 2069, 1994 La. App. LEXIS 2657, 1994 WL 546180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burst-v-bd-of-comrs-port-of-new-orleans-lactapp-1994.