Michel v. Department of Public Safety, Alcoholic Beverage Control Board

341 So. 2d 1161, 1976 La. App. LEXIS 4384
CourtLouisiana Court of Appeal
DecidedDecember 20, 1976
DocketNo. 11065
StatusPublished
Cited by25 cases

This text of 341 So. 2d 1161 (Michel v. Department of Public Safety, Alcoholic Beverage Control Board) 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
Michel v. Department of Public Safety, Alcoholic Beverage Control Board, 341 So. 2d 1161, 1976 La. App. LEXIS 4384 (La. Ct. App. 1976).

Opinion

CHIASSON, Judge.

This is an appeal of a ruling of the Civil Service Commission upholding the action of the Alcoholic Beverage Control Commission in discharging Ted V. Michel, appellant, an ABC Officer II, with permanent status.

In a letter of removal, dated September 16, 1975, the reasons for termination of appellant’s services were stated to be that:

“1. You falsified your daily reports and attendance and payroll records for the days of June 25, June 27, July 8, July 9, July 10, and July 11, 1974, by claiming a total of eight (8) hours work for each of those days when in fact you did not perform a full eight hours of work on any of those days. Based on those falsified records, you were paid for hours of work which you did not perform.
[1163]*1163“2. You falsified your expense accounts for the months of June and July, 1974, by making a claim for payment for miles allegedly traveled on June 25, June 27, July 8, July 9, July 10, and July 11, 1974, which in fact you did not travel. Further, in your expense account for June, 1974, you made claim for and received payment for the reimbursement of $3.75 allegedly used for the purchase of alcoholic beverages during investigations of the Town & Country Lounge, 2133 St. Charles Avenue and Play Girl Club, 1926 Magazine Street, New Orleans, Louisiana, on July 25, 1974, when in fact you did not visit those locations on that day.”

On October 13, 1975, the appellant filed a Petition of Appeal with the Civil Service Commission denying the allegations contained in the letter of termination and further stating that the reasons set forth in the letter were false, that his removal was without cause, that the reasons given were not the true reasons for his dismissal and that the written notice required by the constitution before removal action can be taken was insufficient to apprise the appellant of legal cause for his dismissal.

The Civil Service Commission after a hearing held on May 4, 1976, denied appellant’s appeal of his dismissal.

The appellant contends that in denying his appeal, the Civil Service Commission erred because:

1. The letter of dismissal was inherently defective as it did not provide the appellant with the specific detailed reasons for his termination as required by Rule 12(3);
2. The disciplinary action imposed on the appellant was improper because the appointing authority had previously acquiesced to the Court’s decision by reinstating the appellant and allowing him to perform the duties required of his office; and
3. The facts adduced at the Civil Service Hearing do not support the allegations contained in the September 16th, 1975 letter of dismissal.

Rule 12.3 of the Civil Service Commission provides:

“In every case of removal, demotion or reduction in pay for cause of a permanent employee the appointing authority or his authorized agent shall furnish to the employee at the time such action is taken, or prior thereto, a statement in writing giving detailed reasons for such action. The appointing authority shall furnish the Director a copy of such statement within 15 calendar days of the date the employee is notified.”

The detailed reasons required by this rule plainly comprehend a fair and clear statement of the misconduct of the employee, including whenever pertinent, times, dates, places, amounts and names. Hays v. Louisiana Wild Life and Fisheries Commission, 243 La. 278, 143 So.2d 71 (1962); Parrino v. Louisiana State University Sch. of Med., 207 So.2d 800 (La.App., 1st Cir. 1968); Robbins v. New Orleans Public Library, 208 So.2d 25 (La.App., 4th Cir. 1968). The reason for this rule is that to prepare his defense, the charged employee must know with reasonable particularity the facts and circumstances he may be called upon to rebut in the event his employer makes out a prima facie case against him. Major v. Louisiana Department of Highways, La.App., 333 So.2d 316 (1st Cir. 1976).

The allegations contained in the letter of removal are sufficient to inform the appellant of the facts which give rise to the grounds for his dismissal. The testimony in the record and the exhibits offered into evidence indicate that the appellant had knowledge of the misconduct of which he was accused.

The appellant’s second specification of error apparently refers to an earlier attempt to dismiss the appellant for the same misconduct as that alleged in the September 16, 1975 letter of removal. Following the first attempt at dismissal the appellant was ordered reinstated because the ABC Commission failed to notify the appellant in [1164]*1164writing of the reasons for his termination at the time of his termination, or prior thereto, as required by Rule 12.3.

The above issue was not raised before the Civil Service Commission and no evidence concerning this matter is contained in the record. Therefore, this question can not be considered by this Court.

Based on the testimony and exhibits introduced at the hearing, the Commission found that:

1. On June 25, 1974, appellant reported that he visited four different businesses in downtown New Orleans between 7:00 P.M. and 10:00 P.M. when in fact he never left his residence between 5:40 P.M. and 9:30 P.M.
2. On June 27, 1974, appellant reported working from 9:00 A.M. to 4:00 P.M., of which 2:45 hours was in his office, and the remainder was at various establishments in New Orleans vicinity; when in fact he spent only 1:06 hours in the office and was at home or on personal business from 10:36 A.M. to 7:00 P.M. except for 25 minutes that he was unaccounted for in his car.
3. On July 8, 1974, appellant reported working 8 hours of which 2:30 hours was in his office and 5:30 hours was checking various establishments in New Orleans. He, in fact, spent 1:03 hours in his office and 2:21 hours in his car for a maximum possible work schedule of 3:24 hours.
4. On July 9, 1974, there was insufficient information to prove any charges except that he was at home at 12:45 P.M. when he reported that he was at New Orleans Police Department checking on permits.
5. On July 10, 1974, appellant reported working 9:00 A.M. to 4:30 P.M. and driving 62 miles, of which 2:30 hours were in his office. He, in fact, spent 1:42 hours in the office and was unaccounted for in his car for 51 minutes between 8:45 A.M. and 8:00 P.M. for a maximum possible work time of 2:33 hours. The odometer registered an elapsed mileage of 23 miles rather than 62 miles. Completely disregarding the conflicting testimony about 9:00 to 10:00 P.M. on that date, this makes an erroneous report of 4:27 hours and 39 miles.
6. On July 11, 1974, appellant reported driving 57 miles when his odometer on his personal car only showed an elapsed mileage of 24 miles.
7. In no instance did the odometer readings reported coincide with the actual odometer readings on any car.
The appointing authority relied upon the reported hours of work and mileage reported for paying appellant. In at least the instances reported in the Commission’s findings of facts, the appellant falsified his reports and the letter of dismissal was substantiated.

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341 So. 2d 1161, 1976 La. App. LEXIS 4384, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michel-v-department-of-public-safety-alcoholic-beverage-control-board-lactapp-1976.