PAUL A. BONIN, Judge.
| t Robert Evangelist, a New Orleans police officer, appealed his termination by the Superintendent of Police, Warren Riley, to the New Orleans Civil Service Commission. The Commission denied his appeal. He filed an appeal in this court from that denial. For the reasons which follow, we reverse and render.
I: FACTUAL BACKGROUND
Mr. Evangelist was a classified employee with permanent status in the New Orleans civil service system. He had been employed as a police officer since March 16, 2003, and was designated as a Police Officer I. On the evening of October 8, 2005, he and his fellow officer Lance Schilling were on foot patrol duty in the French Quarter of New Orleans, on Bourbon Street, near the corner of Conti Street. Two mounted policemen were nearby in the street. A post-Hurricane Katrina curfew remained in effect for the city struggling to return to normal business and activity in the French Quarter and elsewhere, after the storm and flooding.
| .¿Robert Davis, a visitor to the city, approached the rear of one of the police horses, a charged conversation between him and the police officers erupted and Davis touched Evangelist’s chest. Evangelist and Schilling attempted to subdue and handcuff Davis, who clutched the iron grillwork on a storefront to resist being handcuffed. Two unidentified FBI officers entered the struggle and one of them brought Davis to the sidewalk,1 causing Davis’ head to strike the pavement, sustaining injury. Eventually Davis was restrained and, handcuffed, placed in a EMS ambulance called to the scene to handle the head injury, which had stopped bleeding before the EMT arrived. The EMT evaluated Davis, whom she found to be alert, oriented and awake. Davis was subsequently taken to the temporary site for handling arrestees, the Greyhound Station, for booking.
The encounter occurred about six weeks after Hurricane Katrina. Mr. Davis testified that he was in New Orleans to check on his property. He had ventured from his hotel room near the perimeter of the French Quarter in search of cigarettes. Parts of the encounter between the officers and Mr. Davis were captured on videotape, possibly by more than one source,2 and were broadcast locally and nationally.
An internal investigation was initiated by the Public Integrity Bureau of the police department. Following the investigation, a departmental hearing was conducted by a deputy superintendent. On December 21, 2005, immediately upon the conclusion of the hearing, Superintendent Riley, the Appointing Authority, ^issued to Mr. Evangelist a letter of termination, which included other disciplinary actions against Mr. Evangelist and set forth spe-[818]*818tifie charges on which the termination was based.
Mr. Evangelist appealed his termination and the other discipline to the New Orleans Civil Service Commission. A referee assigned by the Commission conducted an evidentiary hearing and issued a report recommending to the Commission that the appeal be granted because the Appointing Authority failed to prove the charges against Mr. Evangelist. The Commission did not conduct any further hearings, but, on August 27, 2008, rendered its decision denying the appeal. It is from that decision that Mr. Evangelist appeals to this court.
II: ADMINISTRATIVE PROCEEDINGS
“No person who has gained permanent status in the classified ... city service shall be subjected to disciplinary action except for cause expressed in writing.” La. Const., art. X, § 8(A); La. Const. art. X, § 1(B). New Orleans police officers are included in the protection guaranteed by this provision. Walters v. Dept. of Police of New Orleans, 454 So.2d 106, 112 (La.1984).3 “Legal cause exists whenever an employee’s conduct impairs the efficiency of the public service in which the employee is engaged.” Cittadino v. Dept. of Police, 558 So.2d 1311, 1315 (La.App. 4th Cir.1990).
The U.S. Supreme Court considers this type of tenured civil service employment to be a property right which is protected by the Due Process Clause of |4the U.S. Constitution. The Supreme Court in Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), held:
The essential requirements of due process ... are notice and an opportunity to respond.... The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.
Further, the Loudermill Court explained: “the point is straightforward: the Due Process Clause provides that certain substantive rights — life, liberty, and property — cannot be deprived except pursuant to constitutionally adequate procedures ... the right to due process ‘is conferred not by legislative grace but constitutional guarantee.’ [citation omitted].” Id. at 541, 105 S.Ct. 1487.
It is a basic precept of our system of justice, fair play, and due process that one accused — of a crime, an administrative breach of conduct or code violation, or a civil tort — be given notice of that which he or she is alleged to have done or failed to have done. Thus our jurisprudence has required that written notice be given to a public employee. See La. Const. art. X, § 8; Williams v. Dept. of Property Mgmt., 02-1407, p. 2 (La.App. 4 Cir. 4/16/03), 846 So.2d 102, 104; Riggins v. Dept. of Sanitation, 92-1921 (La.App. 4th Cir.1993), 617 So.2d 112. In Webb v. Dept. of Safety & Permits, 543 So.2d 582 (La.App. 4th Cir.1989), we held that “notice of the charges should fully describe the conduct complained of ... to enable the employee to fully answer and prepare a defense.” More recently, in Williams the City terminated the plaintiff, a city motor vehicle examiner, on the basis of her alleged alteration of her time card for Friday, April 13, 2001. This incident was the only matter discussed at her pre-termination hearing. After the hearing, two other incidents of payroll fraud were discovered, and Williams was | r,terminated. The termi[819]*819nation letter listed three separate occasions of payroll fraud. We stated:
Since the Department of Property Management used these other two incidents of payroll fraud to reach its decision to terminate plaintiffs employment, the plaintiff was entitled to notice of these additional charges and an opportunity to present a defense in regardsfeic] to these additional charges. The requirements of La. Const. Art. 10 § 8 and Loudermill were not met.
Id. at p. 5, 846 So.2d 102 at 105.
In the case at bar, on the day of the departmental hearing, the Appointing Authority issued a letter sustaining the charges4 and terminating Mr. Evangelist.5 The Appointing Authority cannot, as noted above, subject Mr. Evangelist to any disciplinary action “except for cause expressed in writing.” La. Const., art. X, § 8(A). The factual basis for the sustained charges was set out in that letter:
... on or about October 8, 2005, you were involved in a physical altercation with Mr. Robert Davis. A video of the incident captured you striking Mr. Davis in the torso while he was lying on the ground with three other police officers holding him down.
Mr. Evangelist timely exercised his constitutional right to an appeal from the Appointing Authority’s disciplinary action to the New Orleans Civil Service Commission. La. Const., art. X, § 8(A).
The Commission has “the exclusive power and authority to hear and decide all removal and disciplinary cases ...” La.Const., art. X, § 12(B); Pope v. New Orleans Police Dept., 04-1888 (La.App. 4 Cir. 4/20/05), 903 So.2d 1. Before the | (¡Commission, “the burden of proof on appeal> as to the facts¡ shall be on the ap. pointing authority.” La. Const., Art. X, § 8(A) (emphasis added); Walters, supra, at 112-13. “The appointing authority must prove by a preponderance of the evidence the occurrence of the complained of activity and that the conduct impaired the efficient operation of the public service. Newman v. Dept. of Fire, 425 So.2d 753, 754 (La.1983); Cittadino, 558 So.2d at 1315 (La.App. 4 Cir.1990).” Barquet v. Dept. of Welfare, 620 So.2d 501, 505 (La.App. 4th Cir.1993) (emphasis added);6 Cure v. Dept. of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, citing Marziale v. Dept. of Police, 06-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767.
The Commission assigned the appeal to its referee: “[The Commission] may appoint a referee to take testimony, with subpoena power and power to administer oaths to witnesses.” La. Const., art. X, § 12(B). After hearing testimony and considering other evidence, the referee issued a written report on February 25, 2008, which concluded: “The Appointing Author[820]*820ity has failed to meet its burden of proof that the Appellant violated any internal rule. Based on the foregoing, the appeal should be granted.”
Other than the evidentiary proceeding before its referee, the Commission did not conduct any further evidentiary hearings. On August 27, 2008, the Commission rendered its decision denying the appeal of Mr. Evangelist from the Appointing Authority’s termination of him as well as the ten-day suspension for violation of professionalism. Mr. Evangelist then timely appealed to this court.
|7The Commission’s decision is subject to appellate review on any question of law or fact, determining if its order was arbitrary, capricious, or characterized by an abuse of discretion. La. Const. Art. Art., § 12(B); Barquet, 620 So.2d at 505; Cure, 07-0166 at p. 2, 964 So.2d at 1095; Watters, 454 So.2d 106, 114 (La.App. 4th Cir.1984). When there is no rational basis for the Civil Service Commission’s action, its decision is arbitrary and capricious. Bannister v. Dept. of Streets, 95-0404, p. 8 (La.1/16/96), 666 So.2d 641, 647.
The judicial review function in a matter appealed from a civil service commission is “multifaceted,” Watters, supra at 113-14:
In reviewing the commission’s procedural decisions and interpretations of law performs its traditional plenary functions of insuring procedural rectitude and reviewing questions of law. Due concern both for the intention of the constitution and for the boundaries between the functions of the commission and of the court, however, demands that a reviewing court exercise other aspects of its review function with more circumspection. In reviewing the commission’s findings of fact, the court should not reverse or modify such a finding unless it is clearly wrong or manifestly erroneous. In judging the commission’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, the court should not modify the commission’s order unless it is arbitrary, capricious, or characterized by abuse of discretion. R.S. 49:964; Save Ourselves, Inc. v. The La. Environmental Control Comm., 452 So.2d 1152 (La.1984); Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (D.C.Cir.1978); K. Davis, Administrative Law (1982 Supp.) at 536 et seq.
In reviewing the Commission’s findings of fact, the appellate court should not reverse or modify a finding unless it is clearly wrong or manifestly erroneous. Walter, 454 So.2d at 113.
Ill: EVIDENCE BEFORE THE COMMISSION
The only evidence available to the Commission was that adduced before the referee.
|SA- The written charge, signed by New Orleans Police Department Supt. Warren Riley, the Appointing Authority, was introduced. The violations of departmental rules were set forth in the letter:7
RULE 2 MORAL CONDUCT
1. Adherence to Law
Employees shall act in accordance with the constitutions, statutes, ordinances, administrative regulations and the official interpretations thereof, of the United States, the State of Louisiana and the City of New Orleans, but when in another jurisdiction shall obey the applicable laws. Neither ignorance of the law, its [821]*821interpretations nor failure to be physically arrested and charged shall be regarded as a valid defense against the requirements of this rule.
Applicable Law
17271 MCS 54:96 relative to Battery
(a) It shall be unlawful for any person to commit the crime of battery.
(b) Battery is the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.
RULE 2 MORAL CONDUCT
6. Unauthorized Force
Employees shall not use or direct unjustifiable physical abuse, violence, force or intimidation against any person.
RULE 3 PROFESSIONAL CONDUCT
1. Professionalism
Employees shall conduct themselves in a professional manner with the utmost concern for the dignity of the individual -with whom they are interacting. Employees shall not unnecessarily inconvenience or demean any individual or otherwise act in a manner which brings discredit to the employee of the Police Department.
In addition to violations of the departmental rules, the charging letter alleged that Mr. Evangelist’s conduct was “contrary to the standards as prescribed by Rule IX, |flSection 1, paragraph 1.1, of the Rules of the Civil Service Commission of the City of New Orleans.”8
B. Also introduced into evidence was the New Orleans Police Department Operations Manual, Chapter 1.13, under the Title “Policy on the Use of Force” revised September 18, 1998. The departmental policy provides in part that “[pjolice officers shall use only that force reasonably necessary to effectively bring an incident under control, while protecting the lives of citizens and officers.” The policy also treats “the use of deadly force” and “the use of a firearm,” neither of which is at issue in this appeal.
C. Photographic images consisted of a single DVD disc with the written inscription on its cover “Evangelist, R. F.Q. Beating Video” introduced as a joint exhibit, and three still photographs, one depicting Mr. Davis standing and two others depicting him on the ground with the four officers present.
D. The referee received the live testimony of Sergeant Howard Gay, Mr. Davis, Superintendent Riley, Sergeant Donald Harris, Mr. Evangelist, and Dr. Wade Schindler. The referee also received, without objection, the transcribed testimo[822]*822ny of Ms. Rebecca Calvo and Major Kerry Najolia.9
|10Sgt. Howard Gay, NOPD
Sgt. Gay, the lead PIB investigator, obtained a video10 from Channel 6, which
... shows Officers Evangelist and Schilling affecting [sic] the arrest on Mr. Davis. During that video it shows Officer Evangelist punching Mr. Davis four times to the left side of his head. Also, the video shows that Mr. Davis is taken to the ground at which point he begins to bleed, and he’s allowed to stay on the ground, I think approximately four minutes and twenty-two seconds, according to the video, bleeding until EMS arrives on the scene.
The video was the sole factual basis for Sgt. Gay’s concluding that Mr. Evangelist was “in violation of department rules.”
Sgt. Gay discussed another video:11 “This one is starting off after the incident is almost over. Right now he is layingfsic] on the ground handcuffed.” Sgt. Gay is interpreting a video:12
Okay. Again, you see Officer Schilling punching Mr. Davis ... The guy with the black shirt on is an FBI agent. The other guy with ... the cap on ... That’s Officer Evangelist. And you can see he kneed him a couple of times and then punched him right there while he was on the ground.... And he’s going to punch him again ... that’s pretty much the extent of it.
Responding to a question from the referee, Sgt. Gay testified that there was no relevant evidence “other than the tape itself’ on which he relied to conclude that Mr. Evangelist used unauthorized force.
The referee also asked Sgt. Gay if it was appropriate “to use his knee to force his arm behind his back?” to which Gay replied, “If that was what he was doing and that needed to be done at that point, yeah.” Also, in response to the referee, who was apparently relating the evidence to the written charge, Sgt. Gay stated that if Mr. Evangelist punched the suspect on the side of the torso to force the person to |nreact in order to reposition the suspect’s arm, such would be “absolutely” acceptable use of force.
Sgt. Gay was the only investigator13 who testified before the referee. He described leading a joint investigation of the incident with other NOPD sergeants and “some members of the FBI.” Notably, the two FBI agents involved in subduing Mr. Davis did not testify before the referee. The FBI agents “never made themselves available for an interview. In fact, they left town the next day.” 14 Sgt. Gay prepared a single report which was used for the criminal charges against Mr. Evangelist and the PIB investigation; he was not [823]*823present at the department hearing in that investigation.
Mr. Davis
Mr. Davis remembers only being struck on the side of the face while he was standing next to a wall. There is no dispute that it was not Mr. Evangelist who struck Mr. Davis while he was standing, and the portion of the incident recalled by Mr. Davis does not form any basis of the charges against Mr. Evangelist. Also, there is no question that Mr. Davis’ bleeding was not caused by the unauthorized use of force. Sgt. Gay agreed that Davis only began to bleed after he was “taken to the ground” as a result of a maneuver performed by one of the FBI agents, who intervened to assist in the arrest, and not by any action on the part of Mr. Evangelist. The force used by the FBI agents, according to Superintendent Riley, did not constitute “unreasonable force.”
| i2Mr. Davis claimed that after he was brought to the ground he became and remained unconscious, and provided no resistance. Rebecca Calvo, an emergency medical technician called to the scene, stated that because Mr. Davis had stopped bleeding by the time she arrived at the scene she did not need to apply any bandage. She also testified Mr. Davis was awake, alert and oriented when she administered standard tests to him. Mr. Davis was cross-examined, revealing a disparity between his testimony at the criminal trial and his account of events at the hearing.
At the hearing the referee observed Mr. Davis and described in detail the “hostile and bizarre” manner in which he responded to questions. The referee concluded that Mr. Davis was “play acting in an attempt to conceal his true personality. Further, Mr. Davis’ version of events was not credible.” He cited the conflicts in testimony between Mr. Davis’ and others’ accounts of the incident. Indeed, Mr. Davis testified that he did not know whether Evangelist struck him because he (Davis) lost consciousness.15
Sgt. Donald Harris, NOPD
Sgt. Donald Harris, an instructor in the use of force at the NOPD training academy, testified regarding the training of officers in the use of force to restrain adversaries as well as how recruits are taught to respond to resistance.16 He testified that a handcuff on one hand poses a danger to a police officer if the subject uses it as a weapon. He testified that Mr. Evangelist acted within the force continuum if he punched Davis in the torso to force compliance and to handcuff Davis’ other hand. Sgt. Harris described shoulders, arms and legs as appropriate areas for a strike with hard hands. According to Sgt. Harris, strikes to those areas are calculated to get the | ^subject’s arms to relax to facilitate compliance with a police officer’s attempt to handcuff.”17
Sgt. Harris viewed one of the videos18 and stated:
That was Officer Evangelist to the back — his back was to me throwing punches. It looked to me like head strikes. However, there is a technique that we teach, again with the closed fist, for the muscle to relax on the back of the — sort of the shoulder blade that we teach, a strike to part of the whole [824]*824what’s called the brachial plexus tie-in to weaken the arm so that the officer can bring it to — take it to the back and handcuff the person.
And later he stated:
Then if they [the blows] were to the back, I mean, it looked like — I mean, that’s what it looked like to me. But we would teach that there was a blow that an officer could strike to the back, again around the shoulder blade area.”
If it were concluded that the blow was to the back or around the shoulder blade, Sgt. Harris testified that such a blow would be “acceptable.” Further, he testified that from his review of the -video, when Davis was positioned on the pavement no strikes were thrown at him.
Supt. Warren Riley, NOPD
Supt. Riley described viewing several videos, one of which was supplied to him by CNN which had audio.19 He also described watching one video “many times.” He viewed a video before and after the internal investigation. His decision to terminate Mr. Evangelist was “based upon video evidence that I observed, as well as an investigation by the New Orleans Police Department, as well as from an official hearing that was conducted by then-Operations Chief Steven Nicholas, and [14upon my review of that information ...” Supt. Riley did not -view any video during the proceeding before the referee, nor did he identify any video which is in evidence in this court.
Mr. Evangelist
Mr. Evangelist testified that Mr. Davis was possibly inebriated and was initially hostile at the scene of the incident, cursing him and striking his upper chest when he tried to remove Mr. Davis from where he stood close to the rear of a police horse in the street. Mr. Evangelist struck Mr. Davis’ shoulder four times; finally, after intervention of two FBI officers and Officer Schilling, Mr. Davis was brought to the ground and handcuffed. Mr. Evangelist believed he followed his training in seeking to make Davis comply, to determine he had no weapons and was not in a position to take the police officers’ weapons. He stated: “I never struck him in the head or in any place that I shouldn’t have or wasn’t trained to have struck him.” Mr. Evangelist tried to hit Mr. Davis in the neck, on the side, to perform the brachial plexus tie-in release maneuver described in the earlier testimony of Sgt. Harris as an approved and effective use of force.
Dr. Wade Schindler
Dr. Wade Schindler testified as an expert in the proper use of force by a police officer. He viewed a video tape,20 read witness statements, interviewed Mr. Evangelist, and read NOPD rules regarding force. He stated,
What I observed, and in also talking to Officer Evangelist what I observed was about five minutes of a struggle. It’s very, very unusual for police to be involved in a struggle like that over that length of time. There’s always this interaction between the person to be arrested and the officers. Usually, that [825]*825takes place within a few seconds or maybe a little bit more and then it’s over, there’s compliance.
|1sWhat I saw here was about five minutes of non-compliance. I saw four police officers, two federal, two local, attempting to get compliance. And at no time, until the very end, were they able to get Mr. Davis to comply with the request.... I did not see any voluntary compliance.
Dr. Schindler expressed his opinion that Mr. Evangelist acted appropriately in conformity with his training and NOPD rules on use of force. The blows to Mr. Davis’ torso were appropriate and calculated to make him comply with handcuffing. Striking an arrestee in the area “below the earlobe and down to the bottom of the neck ... is authorized under the training that they had.” When asked, “Were any of the blows that you saw Officer Evangelist administer improper or inconsistent with his training?” Dr. Schindler replied, “No.” “He did it exactly as it is taught.”
Maj. Kerry Najolia
Major Kerry Najolia, Director of Training at the Jefferson Parish Sheriffs Office Training Academy and a certified POST instructor and expert in “force continuum” (the protocol or escalation of methods and devices to subdue opponents with appropriate force — from a wave-over to a taser) testified on behalf of Evangelist.21 Major Najolia’s expert opinion was that Mr. Evangelist acted within protocols for subduing a noncompliant adversary. “Clearly my belief in watching the video is that Officer Evangelist ... clearly had sufficient cause to escalate more quickly than he did in this situation.” Major Najolia stated:
[Pjolice officers are absolutely trained that they can punch, kick, elbow, knee to the entire body area.... And, basically what Officer Evangelist and Officer Shilling utilized was techniques that were directed to soft tissue areas. Areas that were on the lower level in the lower region of the target zones.
11 fiIie considered a kick prior to Mr. Davis’ being handcuffed to be appropriate: “[Ujntil those hands are placed behind his back and the handcuffs are secured, then clearly there is a tremendous danger and risk to the officer’s safety and the other innocent people in that area.” When asked “Did you see any force employed by Mr. Evangelist after the threat had been neutralized or after Mr. Evangelist had him under control in the handcuffs?” Major Najolia replied,
There was a touching of ... Mr. Davis’ shoulder area on a couple of occasions, and it could be two or three times when it appeared that Mr. Davis was, in fact, attempting to sit up. It appeared to me, and based on what Officer Evangelist told me, he was just ... basically just trying to keep Mr. Davis in a position where he would no longer be a significant danger or in a position where he could injure himself.
Asked if these actions were appropriate, Major Najolia replied, “Certainly,” stating:
Once Mr. Davis is walking and placed against the wall, clearly it was evident to me that both Officer Evangelist and Officer Schilling were doing everything that they possibly could to get Mr. Davis’ hands behind his back so that they could apply handcuffs. Based on the fact that they could not get those hands behind his back, it was because of his resistance and aggressive move-[826]*826merits away to prevent them from putting his hands behind his back, so that clearly is resistance in my opinion and aggression.
Images of the Incident
The DVD disc introduced as a joint exhibit is the only video in evidence in this court, and it does not contain any audio.22 Moreover, the only part of the encounter captured on this single video does not pertain to the written charges against Mr. Evangelist; Mr. Davis is standing beside the grillwork on the front of a building, and the only officers depicted are Mr. Evangelist and Mr. Schilling. The 117written charge described “[a] video of the incident [which] captured you striking Mr. Davis in the torso while he was lying on the ground with three other police officers holding him down.”
Three still photographs were introduced in evidence, two of which show Mr. Davis with four police officers (two FBI agents among them), one of which shows Mr. Davis standing.
After he heard live testimony, viewed images including those depictions, and reviewed the trial transcript testimony entered in evidence at the hearing, in his report to the Commission, the referee observed of a video, “[I]t’s difficult to tell from that angle” where blows to Mr. Davis landed. He stated;
Well, I don’t think the issue is where the blows landed, because it has already been determined that the blows were not to the head. I mean, the disciplinary letter says it was to the torso. Granted, it’s difficult to tell from that angle, but that’s what the conclusion was.
Nevertheless, mindful of the NOPD’s charges against Mr. Evangelist, the referee ■ concluded: “Based upon the overwhelming evidence the Appellant reasonably complied with the use of force continuum” and “the Appointing Authority has failed to meet the burden of proof that the Appellant violated any internal rule.”
IV: THE COMMISSION’S DECISION
Although the referee reported and recommended to the Commission that Mr. Evangelist’s appeal should be granted,23 the Commission denied the appeal, basing | )Rits decision largely on its evaluation of “a videotape”:
Important evidence in this case is a videotape of the incident taken by a pedes[827]*827trian on Bourbon Street.... A portion of the videotape, agreed to by all counsel, was introduced into evidence. It provides a more accurate account of the incident than the simplistic versions testified to by Mr. Davis and [Mr. Evangelist], both of which we take with a grain of salt. To this observer the videotape shows ... Mr. Davis is seen on the pavement facing upwards with [Mr. Evangelist] crouching beside him. [Mr. Evangelist] strikes Mr. Davis at least twice in his head area at a time when Mr. Davis appeal’s immobilized and offering little resistance.
(emphasis in original).
The videotape described in the Commission’s decision was not precisely identified during the hearing or in the decision and is not in evidence in this court.
A fair reading of the Commission’s decision compels the conclusion that its view of the facts was inextricably bound to a videotape which is not in evidence.24 In order to perform our judicial review function, we must extricate from its decision those questions of fact which the Commission resolved solely upon its review of this video tape. Because there is no video in evidence pertinent to the written charges, we must consider without the benefit of a video whether the facts which the Commission found are not clearly wrong.
We consider two exhibits as crucial in determining whether the Commission followed administrative procedure and provided basic due process to Officer Evangelist: first, the termination letter from Supt. Riley charging Officer Evangelist with specific acts of battery: blows to the torso of Mr. Robert Davis; and, second, visual images in evidence, consisting of a snippet of videotape and three photographs purporting to capture the encounter which undisputedly involved |inDavis, Evangelist, his partner Schilling, and two unidentified FBI agents, complicated by the foreground of the videotape scene’s being obscured or blocked by the flanks of a horse, presumably one of the police mounts which engaged Davis’ interest at the outset of the episode.
The Threshold Issue, Which the Commission Addressed Only Indirectly in Its Decision, Is The Lawfulness of the Detention and Arrest of Mr. Davis.
Before addressing the exhibits, we must first address a threshold issue, one which we deem a gateway to the rest of the case. The Commission’s decision suggests that Mr. Davis resisted an unlawful arrest so that any use of force, reasonable or unreasonable, would not have been justified. It stated, “There is no evidence in the record that Mr. Davis was breaking any law, a suspect for any crime, disturbing the peace or threatening anyone. There is no evidence that he had been drinking ... the possibility that he was carrying a concealed weapon was minimal.” However, the Appointing Authority, whose investigation generated the charges, did not accuse Mr. Evangelist of unlawful arrest. When it had the opportunity to bring charges— and it was not reluctant to assign several charges based on the incident — both in criminal proceedings and in departmental investigations, it at no time listed “unlawful arrest” of Mr. Davis among them.
La. R.S. 14:108 makes it unlawful to resist a police officer when the person knows that the police officer, in his official capacity, is arresting him.25 Further, La. C. Cr. P. Art. 220 provides:
A person shall submit peaceably to a lawful arrest. The person making a [828]*828lawful arrest may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained.
12(]Mr. Evangelist was in uniform and Mr. Davis knew he was a police officer. He was not entitled to resist, and Mr. Evangelist was entitled to use “reasonable force” to effect Mr. Davis’ arrest. Sgt. Gay, who conducted the internal investigation on behalf of the NOPD, acknowledged that Mr. Davis was resisting the four officers trying to handcuff him, and that Mr. Evangelist was authorized to use force to accomplish a lawful arrest. The NOPD Operations Manual, Chapter 1.18, “Policy on the Use of Force,” set forth the applicable standard: “Police Officers shall use only that force reasonably necessary to effectively bring an incident under control, while protecting the lives of citizens and officers.” Police instructors Na-jolia and Schindler both considered the detention to be lawful and use of force to be appropriate based on the noncompliance of Mr. Davis in his resistance to being handcuffed.
The Commission’s finding as an underlying fact that Mr. Davis’ arrest was unlawful is manifestly erroneous. No reasonable factfinder could conclude that Mr. Davis’ arrest was unlawful, especially in the light that the Appointing Authority never made any such charge nor even tried to prove such a charge.
The Commission Erroneously Based Its Decision on Alleged Blows to Mr. Davis’ Head, Not the Charged Activity: Blows to His Torso.
The chief factual dispute is whether Mr. Evangelist hit Mr. Davis on the head/ in the head area, or whether he hit him in the torso. The Commission’s decision describes the videotape as showing that Evangelist struck Davis “about the head.” The decision states that “[ajppellant swung at Mr. Davis’ neck, while he was [facing the wall] ... and ‘missed’ and struck him in his arm with a baton.... Appellant strikes Mr. Davis at least twice in his head area.” The Commission disregards the witnesses’ testimony in favor of its view of the video. For example, |21the Commission wrote that “[c]ontrary to the assumption made by Mr. Najolia, [Mr. Evangelist] and Officer Schilling were not striking ‘soft tissue’ areas of the lower body.” The decision does not support the precise charges set forth in the NOPD letter — blows to the torso. Also, the decision is also contrary to the referee’s findings.
Expert and Police Witnesses Concurred That Blows to the Torso are Acceptable and Are Part of Techniques of Use-of-Force Restraint Taught to Police Officers.
All the witnesses who testified regarding police training on the use-of-force continuum — Major Najolia, Dr. Schindler, Sgt. Harris, and Mr. Evangelist, agreed that blows to the torso are among accepted maneuvers to obtain compliance, and are not unauthorized force. For instance, a blow to the shoulder area, the brachial-plexus tie-in muscle zone is to effect the hand’s release of a grip or a weapon. No witness testified that blows to the torso area were not appropriate, and witnesses who did testify on that issue agreed that individual circumstances vary, and the criterion is necessary force to obtain compliance. Thus the charges of the Appointing Authority are inherently erroneous and [829]*829cannot support the termination of Mr. Evangelist.
The Decision Erroneously Rejected Evidence of Mr. Davis’ Lack of Credibility and of Mr. Evangelist’s Truthfulness.
We note the contradiction in the Commission’s decision, which dismisses the testimony of Mr. Evangelist, “taking it with a grain of salt,” yet not sustaining the Appointing Authority’s charge of untruthfulness. Sgt. Gay admitted that he considered Mr. Evangelist to be truthful and did not investigate a truthfulness violation charged against Mr. Evangelist. He testified that the investigation found only that Mr. Evangelist violated rules regarding adherence to law, professionalism, | ?i>moral conduct (which is unauthorized force), and battery on Robert Davis.26 Sgt. Gay found “no violation of police department regulations requiring truthfulness.”27
The referee found that “the appellant’s [i.e., Evangelist’s] testimony was consistent with what was viewed in the video evidence.” On the other hand, the referee found Mr. Davis unreliable, stating in his report: “Mr. Davis was not a credible witness.”
Mindful of the specific NOPD charges against Mr. Evangelist, the referee concluded: “The Appointing Authority has failed to meet the burden of proof that the Appellant violated any internal rule” and, “[b]ased upon the overwhelming evidence, the Appellant reasonably complied with the use of force continuum.”
The Commission found facts not supported by the video in evidence, and its decision attributed to Robert Evangelist different batteries on Mr. Davis than the batteries specified by Supt. Riley’s charges against him. As such, the decision’s disparity is violative of the due process requirement for precise notice. The Commission had to find “blows in the torso” as charged in the NOPD letter. However, it did not do so. The Commission decision stated:
The videotape shows that at the time Appellant struck Mr. Davis four times, two of which were in his head area while he was lying on the pavement, he was physically restrained by four police officers and there was no necessity to take such violent action particularly since Mr. Davis offered to voluntarily turn over for the purpose of permitting the handcuffs to be attached, (emphasis added).
We do not know what the commission viewed, for it failed to take steps to ascertain that the video on which it relied so heavily was made part of the record for our | ^review. The evidence we have reviewed shows Mr. Davis resisting restraint and handcuffing. The Appointing Authority had the burden to preserve the evidence and introduce it into the record. The transcript, however, does not reveal a proper and precise identification of additional visual images besides the three still photographs and the single DVD disc referenced above, and does not contain any identification of any audio recording.
The Sounds of Silence: Numerous Missing Pieces of Evidence
We are confronted with gaping holes, lacunae in the evidence, yet the Appointing [830]*830Authority bears the burden of proof. “The unexplained failure of a party to call a witness who possesses peculiar knowledge of material facts pertinent to the resolution of the case entitles the opposing party to a presumption that the witness’s testimony would be unfavorable.” Arnone v. Anzalone, 481 So.2d 1047, 1050 (La.App. 1st Cir.1985). “It is well established that such a presumption is available in this state [citations omitted].” Morgan v. Matlack, 366 So.2d 1071, 1073 (La.App. 1st Cir.1979), writ denied 369 So.2d 1352 (La.1979); Tillman v. Canal Ins. Co., 305 So.2d 602, 606 (La.App. 1st Cir.1974), reh. den. (1975), writ refd. (1975); Lavigne v. Oechsner, 519 So.2d 870, 871 (La.App. 4th Cir.1988); Smith v. Dept. of Public Safety & Corrections, Hdqtrs., 500 So.2d 779, 780-81 (La.App. 1st Cir.1986), reh. den. (1987). The First Circuit in Ryder v. DHHR, 400 So.2d 1123, 1126 (La.App. 1st Cir.1981), wherein the appellate court reviewed the decision of the state civil service commission terminating a classified civil servant, reversed, holding the commission’s decision to be manifestly erroneous. The Ryder Court stated:
It should ... be noted that, in discharging its burden of proof, the authority failed to call three other witnesses who were present at this incident. Because their testimony would logically be part of the | ^authority’s case, and their failure to testify being unexplained, it must be presumed that their testimony would not have aided the authority’s case.
Id.
The Appointing Authority Failed to Call the Two FBI Agents and/or Investigators.
Sgt. Gay in his testimony at the hearing told the hearing officer that he, together with three other NOPD sergeants and two FBI personnel, investigated the incident. Descriptions of the incident by Mr. Evangelist and Sgt. Gay state that two FBI agents interposed themselves into the incident and in fact one FBI agent brought Mr. Davis to the ground, causing him to strike his head on the sidewalk (the sole cause of his head injury). When questioned at the hearing, Sgt. Gay testified, “The FBI agents never made themselves available for an interview.... They left. They left the next day. They were gone ... So I never got a chance to ...” He stated that the agents used acceptable force to bring Davis to the ground. Supt. Riley also testified that the force used by the FBI agents to attempt to control Mr. Davis was appropriate. The record is devoid of evidence from these two eyewitnesses/ participants in the incident. Moreover, the Appointing Authority did not call as witnesses several law enforcement officers, both local and FBI, with whom it had cooperated in its investigation, raising the inference that their testimony would support Mr. Evangelist, not the Appointing Authority.
The Appointing Authority Failed to Call the NOPD Mounted Officer(s) at the Incident.
The snippet of film submitted in the record before this court shows one horse and its NOPD rider prominently in the foreground of the incident. Officer Evangelist testified and Sgt. Gay testified (as to his investigation) at the hearing that Mr. Davis was seen at a NOPD horse’s rear appearing to touch or contact the horse, 1 gñCausing the officers to move him out of the street, away from the horse and then to engage in the contretemps. The name of the equestrian officer and a statement of that officer regarding the incident are [831]*831absent from the record. If indeed there was a second mounted officer at the scene, the name and/or report or information regarding that mounted NOPD officer is also missing from the Appointing Authority’s record.
The Appointing Authority Failed to Call NOPD Officer Smith and Cameraman Matthews.
The record fails to include a statement or even the identity of the person who made the video, hence perforce witnessed the incident. A “cameraman” called “Matthews” is mentioned in the testimony but not identified; and no statement from this apparent eyewitness was made part of the record. The transcript shows that an NOPD Officer Smith was also involved, but the Appointing Authority’s investigation and evidence provides no information regarding him or testimony from Officer Smith regarding the incident, which produced a complaint against him. This additional source of eyewitness testimony would have been relevant to the charges against Mr. Evangelist.
The Appointing Authority Failed to Identify and Include in the Record One or More Videotape(s) With Audio Component.
The most significant lacuna in the record is the absence of a depiction (or possibly more than one) of the incident that is longer and contains more detail — the video or tape to which counsel refer in the hearing, but fail to include in the evidence that was part of the record filed in this court. And a depiction with audio, referred to by witnesses and the attorneys, is part of that hole in the evidence. Because the burden of proof lies with the Appointing Authority, it should have taken care to make a complete record for the purposes of appellate review. The | ^Commission should have examined only the evidence introduced and addressed the vexing lacunae therein in deciding whether the Appointing Authority carried its burden of proving the charges against Mr. Evangelist.
The Appointing Authority Omitted Evidence of the PIB Investigation of Officer Schilling and Officer Smith, Who Were Subjects of Complaints and/or Were Charged with Violations by the NOPD for This Incident.
Without the videotape in evidence to support the Commission’s factual findings, we are compelled to disregard its ruling as having been made based on material not in evidence. Therefore, we make an independent assessment of the evidence to determine if the record before us substantiates the Commission’s finding, in essence, that Mr. Davis resisted an unlawful arrest and that Robert Evangelist struck four blows to Mr. Davis’ torso, as charged by the Appointing Authority. Our review of the record, including the single videotape (DVD disc) placed in evidence, brings us to the inevitable and overwhelming conclusion that the Commission committed manifest error in evaluating the Evangelist incident, and in finding that the Appointing Authority proved by a preponderance of the evidence that the complained of activity or dereliction by Officer Evangelist occurred. See Cittadino, 558 So.2d at 1315 (La.App. 4 Cir.1990).
V: SUMMARY OF DISCUSSION
In exercising our multi-faceted review function under Walters, we first conclude that the Commission’s review of a video or videos which were not placed into evidence and upon which it then largely based its decision is not allowed. In performing our traditional plenary function of insuring procedural rectitude, we disregard the Commission’s findings to the extent that they rely solely upon the impermissible viewing of such non-evidence.
[832]*832|27We next review the evidence that is in the record and, from our review of the entirety of the record, conclude that the Commission’s findings of fact that Mr. Davis was resisting an unlawful arrest or, stated another way, that Mr. Evangelist was effecting an unlawful arrest, is manifestly erroneous or clearly wrong. We conclude that the Commission’s finding that Mr. Davis was struck by Mr. Evangelist not in the torso, as charged, but in the head area, is also manifestly erroneous. We, therefore, conclude from the evidence in the record before us that Mr. Evangelist was effecting a lawful arrest of Mr. Davis and that in effecting the arrest he did not strike Mr. Davis in the head area after he was on the ground.
Although the Appointing Authority did prove by a preponderance of the evidence that Mr. Evangelist struck “Mr. Davis in the torso while he was lying on the ground with three other police officers holding him down,” we further conclude from the totality of the evidence that such force does not constitute “unauthorized force” under the circumstances.
Finally we conclude that there is no rational basis for the Commission’s determination that there was legal cause for Mr. Evangelist’s removal from the civil service as well as the related discipline. Therefore, the Commission’s decision is arbitrary and capricious and it must be modified.
DECREE
For the reasons set forth above, we reverse the ruling of the New Orleans Civil Service Commission. Robert Evangelist is to be restored to his New Orleans Police Department rank as of October 8, 2005, and all benefits, seniority standing, and salary are to be reinstated as of that date.
REVERSED AND RENDERED.
McKAY, J., concurs.
BELSOME, J., dissents with reasons.