Court: Louisiana Court of Appeal; October 9, 1984; Louisiana; State Appellate Court
Wayne Howard appealed the termination of his employment as a carpenter with the Housing Authority of New Orleans (HANO), which was affirmed by the State Civil Service Commission. Howard was terminated for three main reasons:
1. **Unauthorized Absence**: On June 30, 1982, he and a coworker were found away from their assigned work site without permission, as evidenced by a report of a HANO truck parked at a different location for an extended period.
2. **Unauthorized Use of HANO Vehicle**: HANO policy required that vehicles be returned to the office after job completion, but Howard used the vehicle inappropriately.
3. **Falsification of Work Reports**: Howard reported working eight hours at the assigned job site when he was not present there during that time.
This termination followed a previous suspension for similar unauthorized vehicle use, where Howard had been warned that further violations could lead to termination. Howard's appeal to the Commission included a motion for summary disposition, arguing insufficient detail in the termination letter and improper consideration of past disciplinary action. However, the referee dismissed his motion and upheld the termination. The Commission subsequently denied Howard's request for review, making the referee's decision final. Howard then filed a devolutive appeal.
Laurent Boutee, Executive Assistant for HANO, received an anonymous call at 2:15 p.m. on June 30, 1982, reporting a HANO vehicle parked at 2006 Selma Street with two HANO employees inside. Boutee informed Lloyd Dupre, HANO's Office Manager, who identified the location as belonging to Wayne Howard. Following Dupre’s instructions, Boutee and others, including Dupre, Louis Marshall, and Anthony Legeaux, arrived at the scene around 3:00 p.m. They observed the situation until 4:20 p.m., when Howard and Johnny Moll exited the house. Marshall, who was Howard's supervisor, questioned Howard about his presence, to which Howard initially walked back inside before re-emerging with Moll.
On that date, Howard was scheduled to work at a different location but failed to inform his supervisors of his illness, contrary to HANO policy, which requires employees to report sickness to their immediate supervisor and allows for medical aid. Despite this, Howard submitted a form claiming he worked eight hours at the designated site on that day. Additionally, HANO regulations restrict the use of its vehicles solely for work-related travel between job sites and the office, prohibiting personal use.
Howard argues that the referee erred by denying his motion for summary disposition due to the letter of termination lacking sufficient detail regarding the charges against him, particularly because it referenced an anonymous phone call without identifying the caller. He claims this omission hindered his ability to prepare a defense and investigate the circumstances surrounding the call. According to Rule 13.14, an appeal may be summarily disposed of if the written notice of charges is insufficient or does not constitute a legal basis for disciplinary action. Rule 12.3 mandates that, in cases of employee removal for cause, detailed reasons must be provided, including misconduct descriptions, dates, times, and involved parties, to adequately inform the employee of the charges.
The record indicates that the anonymous call was not used as evidence for the charges but rather to explain why an investigation was initiated. HANO's counsel clarified that the call's relevance was to contextualize the actions taken, not to establish the truth of its content. Since the call was anonymous, HANO could not identify the caller, and the absence of this detail in the termination letter was deemed unnecessary. The letter sufficiently detailed the alleged misconduct, including descriptions, dates, times, and names of HANO officials involved. Therefore, the letter met the requirements of Rule 12.3, and Howard's assignment of error is considered without merit.
Counsel for Howard requested a subpoena duces tecum to obtain service request sheets, time sheets, and breakdown sheets from HANO for the period of June 28 to June 30, 1982. The referee denied this request due to a lack of a statement regarding the intended proof of the evidence, as required by Civil Service Rule 13.21(d). After further clarification from Howard's counsel on the necessity of these records for demonstrating job assignments and locations, the referee ordered HANO to produce the records by the November 17, 1982 appeal hearing. HANO, however, failed to provide all requested documents, supplying only one service request sheet, which was deemed insufficient.
Howard argued that HANO's noncompliance created an inference in his favor, suggesting that the missing evidence would prove he was not guilty of falsifying records for a specific address. Despite expressing dissatisfaction with HANO's response and the difficulties it posed for his defense, Howard did not seek sanctions, a continuance, or an instanter subpoena, which constituted a waiver of his objection. Furthermore, the evidence indicated that the appropriate address was 1417 Annunciation Street, Apartment H, not 1412, and HANO's failure to produce records did not hinder Howard's ability to establish this fact. Consequently, the assignment of error was deemed without merit.
Howard's failure to testify during the hearing was a key focus of the referee's decision. The referee noted objections from Howard’s counsel regarding the admissibility of testimony from Mr. Boutee and Mr. Marshall about their conversations with Howard at the Selma Street address during the incident, based on the letter of termination. This letter, signed by Executive Director Sidney H. Cates, III, referenced a conversation between Howard and Cates, but Cates was not present at the time of the incident. The referee reserved judgment on these objections pending potential testimony from Howard or Cates to clarify whether the letter contained a typographical error. Ultimately, neither testified, leading the referee to find the objections meritless and allow the other witnesses to testify.
Howard argued that the referee considered his absence as a negative factor against him, asserting that the burden of proof lay with the appointing authority (HANO), and that any adverse inference from his failure to testify was improper. The legal framework governing the appeal process is governed by rules established by the Commission, which hold precedence over conflicting legislative acts. According to Rule 13.19(d), evidence rules for civil trials apply to Commission hearings, and the absence of a witness can lead to an inference that their testimony would be unfavorable. Howard did not claim self-incrimination to justify his absence, which would have negated any adverse inference. The referee, however, chose not to resolve the case solely on that basis.
The referee's ruling expressed regret over the absence of testimony from both Howard and Cates regarding the termination letter's language. Evidence confirmed Cates was not present at the Selma Street address on the relevant date, leading to errors in the letter's first-person references. Despite these errors, the letter met the requirements of Rule 12.3 by informing Howard of the disciplinary charges, including details on the misconduct, relevant dates, and potential witnesses. There is no obligation to list witnesses unless they were directly involved or affected by the misconduct.
Howard's claim that the referee erred by allowing testimony from witnesses Boutee and Marshall, who did not sign the termination letter, was rejected. He argued that this testimony expanded on the facts in the letter and that Cates's incorrect presence at the address warranted a reversal. However, no legal authority was cited to support these claims. Rule 12.3 only requires that the employee be informed of the misconduct's nature, time, place, and names of those directly involved or affected. The witnesses who testified against Howard were mentioned in the termination letter, and their lack of signatures was deemed irrelevant. Cates was recognized as an authorized agent of HANO, and the absence of personal knowledge about Howard's actions did not affect the ruling. The inaccuracies regarding Cates's presence were not prejudicial, and the misconduct was adequately detailed per Rule 12.3. This assignment of error was deemed without merit.
The referee found several key facts regarding the appellant's conduct on June 30, 1982. The appellant, along with Johnny Moll, was assigned to work at 1417 Annunciation Street using a Housing Authority of New Orleans (HANO) vehicle, which Mr. Moll drove. Although the appellant reported working eight hours at the assigned location, he was seen at home from approximately 3:00 p.m. to 4:20 p.m., during which time he did not request leave. Previously, the appellant had faced a two-day suspension for unauthorized vehicle use and was warned that further violations could lead to termination.
Under Louisiana law, disciplinary action against classified service employees requires written cause, and such cause exists if the conduct impairs public service efficiency. The burden of proof lies with HANO, which must demonstrate charges by a preponderance of evidence. The Commission's factual determinations are upheld unless manifestly erroneous.
The appellant claimed he left work due to an asthma attack and provided a letter to HANO corroborating this. However, no competent evidence was presented at the appeal hearing to substantiate his claims. The only supporting testimony was from Louis Marshall, who noted a letter in the appellant's personnel file indicating an attempted call to HANO on that date; however, this could only be used to show the letter's existence, not its truth. Furthermore, the appellant argued that being paid for the full workday means he cannot be held accountable for falsifying the work report, as it was approved by HANO.
Marshall testified he authorized payment of a claim because there had been no decision on charges against Howard, indicating that this payment did not waive HANO's right to contest any falsified records related to the claim. Howard argued he could not be held responsible for the unauthorized use of a HANO vehicle since he was not the driver; however, evidence showed the vehicle was assigned to Moll, and both Howard and Moll were found at Howard's home instead of their designated work location. This led to the inference that Howard aided Moll in the vehicle's unauthorized use.
Howard contended that because his termination letter charged him with absence from a specific address (1412 Annunciation) and falsification of a work report for that address, HANO could not introduce evidence indicating his assigned work location was actually 1417 Annunciation. He claimed that since he was only shown to be at 1417 Annunciation, he could not be held accountable for not being at 1412 Annunciation or for submitting a false report for that address.
However, the core issue was that Howard was at home during work hours instead of at any assigned work location. HANO established that Howard was not working when he was found at home, which substantiated the charges against him. The minor error regarding the designated work location was deemed non-prejudicial to Howard. The findings confirmed that Howard was absent from work, participated in unauthorized vehicle use, and falsified his work records, providing sufficient legal grounds for disciplinary action. The case is supported by precedent from Venezia v. Department of Inspections and Code Enforcement.
Assignments of error raised by Howard regarding the excessiveness of his punishment are deemed without merit. He argues that his prior 1981 suspension was improperly utilized due to the absence of a notification of his right to appeal, as required by Civil Service Rules. Howard claims he was entitled to a summary disposition since the prior suspension was improperly included in his termination letter and contends that its illegality should preclude its consideration in determining his punishment, which he argues is excessively severe.
Case law indicates that evidence of previous infractions, alongside current offenses, can reflect an employee's unreliability or indifference, potentially justifying dismissal. Previous suspensions and reprimands can be relevant in assessing whether an employee was dismissed for cause and in determining appropriate disciplinary action.
Rule 12.2(a) mandates that suspension notices include detailed reasons along with the right to appeal, as specified in Rule 12.3(a)(2). The suspension letter dated June 25, 1981, lacks the required notification of the right to appeal. However, Howard provides no legal basis to challenge the prior disciplinary action in the current proceedings. Consequently, the prior suspension was properly incorporated into the termination letter and was relevant to the case of unauthorized vehicle use, as well as to the assessment of punishment.
The Commission holds significant discretion in deciding appropriate disciplinary actions once legal cause is established, and its decisions regarding disciplinary penalties are subject to judicial review. The Louisiana Administrative Procedure Act applies to Commission proceedings, except where it conflicts with the Constitution or Civil Service Rules.
In administrative proceedings, there is a general right to appeal from the appointing authority to the district court, as outlined in La. R.S. 49:964. However, appeals from the Commission bypass the district court and go directly to the court of appeal, per La. Const. of 1974, art. X. 12(A). La. R.S. 49:964(G) establishes the standards for appellate review from an agency to the district court, but similar standards for appeals to a court of appeal are not specified in the Administrative Procedure Act (La. R.S. 49:965). It is determined that the same standard of review applies, meaning the Commission's decisions can only be modified or reversed if deemed arbitrary, capricious, or an abuse of discretion, aligning with cases such as Walters v. Department of Police and Newman v. Department of Fire. After reviewing the case, the court concluded that the Commission's punishment assessment met the established standard and was not arbitrary or capricious. Thus, the assignments of error were deemed without merit, and the Commission's rulings were affirmed at the appellant's expense. Additionally, when the Commission only reviews transcripts or taped testimony, it applies a less stringent standard of review regarding the sufficiency and preponderance of evidence, as noted in Carbonell v. Department of Health and Human Resources.
