Monteverde v. New Orleans Fire Department

891 So. 2d 716, 2004 La.App. 4 Cir. 0829, 2004 La. App. LEXIS 3272, 2004 WL 3058952
CourtLouisiana Court of Appeal
DecidedDecember 8, 2004
DocketNo. 2004-CA-0829
StatusPublished
Cited by1 cases

This text of 891 So. 2d 716 (Monteverde v. New Orleans Fire Department) 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
Monteverde v. New Orleans Fire Department, 891 So. 2d 716, 2004 La.App. 4 Cir. 0829, 2004 La. App. LEXIS 3272, 2004 WL 3058952 (La. Ct. App. 2004).

Opinion

JjMAX N. TOBIAS, JR., Judge.

Thomas Monteverde (“Monteverde”) is employed by the appointing authority, the New Orleans Fire Department (“NOFD”), as a Fire Captain with permanent civil service status. He was hired by the NOFD on 21 June 1976 and was promoted to his current class on 7 June 1987. The instant disciplinary action arose out of an alleged false response by Monteverde to a question posed to him during a promotional interview for the position of Fire District Chief. Monteverde was found by a peer review committee, to have violated a NOFD departmental rule prohibiting the giving of false testimony and given a six-hour suspension without pay. He appealed the disciplinary action to the Civil Service Commission for the City of New Orleans (hereafter “CSC”), which reversed the NOFD. The NOFD now appeals. We affirm.

The NOFD suspended Monteverde for six hours based on a determination that he violated Section 5.2.1 of the NOFD’s rules and regulations, which, according to the 16 May 2003 disciplinary letter mailed by the NOFD to Monteverde and the decision of the CSC, states:

Section 5.2.1 — No member shall make any false statements or reports concerning other members conduct or character, or regarding any business of the ^Department. Members shall not make any false entries or statements in any department record books, reports or testimony. Omission of any facts from any reports or records books with the intent to deceive shall be considered the same as a false entry.

Monteverde was formally charged with the violation on 16 April 2003. The 16 May 2003 disciplinary letter mailed by the NOFD to Monteverde specifically alleged that:

[D]uring an interview for promotion to Fire District Chief, you stated that you had spoken to retired Superintendent of Fire Warren McDaniels while he held [718]*718the office of Superintendent, about a problem with the Fire Fighters Challenge. It was established by Chief McDaniels himself, that no such conversation took place.

NOFD Assistant Superintendent Edwin Holmes, Sr. (“Holmes”) testified at the CSC hearing that he was present for Mon-teverde’s promotional interview on 7 April 2003 for the position of District Chief. Also present at that interview were NOFD Superintendent Charles Parent and NOFD Chief of Administration Bruce Warner. Holmes testified that Superintendent Parent asked Monteverde a question regarding problems Monteverde had with the “Firefighter’s Challenge,” which is essentially a physical fitness test. Monteverde stated that he had addressed those problems with former NOFD Superintendent Warren McDaniels (“McDaniels”). Holmes’ recollection was that Monteverde stated that he had spoken to McDaniels personally, and that Monteverde had said, “If you don’t believe me, go ask him.” Holmes further testified that he subsequently had occasion to ask McDaniels informally about what Monteverde had said. McDaniels said he never had such a conversation with Monteverde.

Holmes was asked on cross-examination how Monteverde’s statement mattered insofar as the selection process. He replied that it mattered because pMonteverde violated rule 5.2.1, i.e., that Monteverde had “lied.” Holmes said it mattered that one told the truth during the interview process. When Holmes was asked whether Monteverde’s statement about speaking with McDaniels had any bearing on the decision whether to select or not select Monteverde as a district chief, Holmes replied, “No, it did not.”

NOFD Deputy Chief Joseph F. Buras (“Buras”) testified that he was the chairman of the NOFD Peer Review Board that met to consider the charge lodged against Monteverde. He recalled that when Mon-teverde was asked during the Peer Review Board meeting whether he had a conversation with McDaniels, Monteverde admitted that he had not had a face-to-face conversation with McDaniels. Buras identified a summary of the peer review board meeting, reflecting that Monteverde said that he had someone talk to McDaniels on his behalf and pass verbal and written information from him to McDaniels. The summary further reflected that Monteverde admitted that he did not personally speak to McDaniels. Buras was asked how Mon-teverde’s statement related to the efficiency of the NOFD. He replied that, insofar as a person interviewing for a job, one would want that person to be truthful because later on one would want that person to be truthful in the performance of his duties.

NOFD Superintendent Charles Parent (“Parent”) testified at the hearing that one of the issues that came up in Monteverde’s promotional interview was the excessive time it took Monteverde to complete the Firefighter’s Challenge. Monteverde said he had medical reasons for his excessive time. Parent said that if a firefighter is not physically able to complete the challenge, then the NOFD does not feel he is physically able to do the job and he is placed on sick leave. Parent said he knew of no exceptions. He knew Holmes lived near McDaniels, so when | ¿Holmes volunteered that he could ask McDaniels about Monteverde’s explanation about the challenge, Parent told him to go ahead and do it. Parent was asked how Monteverde’s statement affected the efficiency of the NOFD. He replied that the NOFD holds its people to a high standard, and that people have to trust firemen. Insofar as Monteverde’s supervising other firemen, Parent said that as a captain, Monteverde [719]*719was held to a higher standard, and that personally Parent would not want to work for anyone who would not be truthful.

Father Peter Weiss, the Roman Catholic chaplain for the NOFD and New Orleans Police Department, testified that Montev-erde sought counsel from him two or three years ago relative to a problem on the Firefighter’s Challenge. Monteverde asked Father Weiss to speak to then-Superintendent McDaniels about the problem, and shortly thereafter Father Weiss did so. Father Weiss later delivered a letter to McDaniel’s secretary at the request of Monteverde. On cross-examination, Father Weiss admitted that he could not be certain as to whether Monteverde had sought his counsel and intervention with McDaniels relative to the 2000, 2001 or 2002 challenge.

The CSC stated in its decision that Rule 5.2.1 required an intent to deceive. The CSC stated that it saw little difference between Monteverde’s speaking directly to McDaniels or communicating indirectly through his spiritual eounsélor. It noted that the NOFD conceded that Montev-erde’s statement was immaterial to the promotional process. The CSC concluded that Monteverde had made an “imprecise statement during a promotional hearing that was not intended to deceive, and was of no consequence,” and thus that the NOFD had failed to establish that it had disciplined Monteverde for cause.

|RIn Broaden v. Department of Police, 2003-1427, p. 5 (La.App. 4 Cir. 1/14/04), 866 So.2d 318, 321, quoting Smothers v. Department of Police, 2000-1518, pp. 4-5 (La.App. 4 Cir. 5/16/01), 787 So.2d 1110, 1112-1113, we held:

An employee who has gained permanent status in the classified city civil service cannot be subjected to disciplinary action except for cause expressed in writing, and he may appeal disciplinary action taken against him to the Civil Service Commission. La. Const, art. X, § 8(A). On appeal, the Civil Service Commission has- a duty to decide if the appointing authority had good or lawful cause for taking the disciplinary action, and, if so, whether the punishment is commensurate with the offense. Walters v. Department of Police of City of New Orleans, 454 So.2d 106 (La.1984).

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891 So. 2d 716, 2004 La.App. 4 Cir. 0829, 2004 La. App. LEXIS 3272, 2004 WL 3058952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/monteverde-v-new-orleans-fire-department-lactapp-2004.