City of Thibodaux VS Jason Terry
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 0792 CITY OF THillODAUX VERSUS JASON TERRY DATE OF JUDGMENT February 9 2007 ON APPEAL FROM THE SEVENTEENTH JUDICIAL DISTRICT COURT NUMBER 102351 B PARISH OF LAFOURCHE STATE OF LOUISIANA HONORABLE JERAME J BARBERA III JUDGE Daniel A Cavell Counsel for Plaintiff Appellee Thibodaux Louisiana City of Thibodaux Eric J Hessler Counsel for Defendant Slidell Louisiana Jason BEFORE Disposition Teny IillHN GAIDRY AND WELCH JJ AFFIRMED IN COMPLIANCE WITH LA D R C A RULE 2 16 1B 2AJ J J T l f G4 k Appellant KUHN J Appellant Teny appeals the trial the order of the Thibodaux pOliion of Service Board Thibodaux unbecoming as defined in Rule IX an well Board found that the to officer as a to Employees Civil employment violation of the Thibodaux Police having with the failed were to Depmiment maintain the standards of service as the Regulations appointing authority Chief of the Thibodaux Police disciplinmy employment made in findings policeman reversmg the We affirm Department Craig Melacon had just not Government Section 1 of the Thibodaux Civil Service Board concluded that the was judgment Teny appealed his termination from employment for having engaged Manual Article 7 2 policeman comi s Municipal the Board that reinstated the City Police Depmiment After in conduct Jason cause for action taken The trial comi But the discipline against Teny was unreasonable and reinstated the detenllined that the Board s decision good faith its order was arbitrary and capricious and therefore its clearly wrong and it reversed the Board s reinstatement of Teny to employment On appeal Teny challenges the trial reinstatement punishment comi suggesting that the Board than that taken erred in failing to court at was s conclusion that reversed his libeliy by the appointing authority remand the to allot a less severe He also urges that the trial matter to the Board to clarify its intent in rendering its decision It is well established that the Board has the disciplinmy reverse or cases affirm a which includes the penalty authority La Const art X 2 9 to 12 authority to hear and decide modify reduce See La R S as well 33 2501 as to The appointing authority the occunence impaired Dep the of the these facts by a preponderance of the evidence complained of activity and that the conduct complained of efficiency of the public service 01 0436 t has the burden of proving 4 p be must La 2 App 4th Cir Fernandez 02 6 New Orleans Fire v 809 So 2d 1163 clearly established they need not 1165 be established While beyond a reasonable doubt Id Decisions of the Board decision of reviewing a district comi is But in the to subject When court same standard of review evaluating the Board s enoneous determination disciplinary action taken by the appointing authority is based with the infraction commensurate reverse the Board s Mental Health Sys the order unless it is Brown abuse of discretion v Dep t 04 2348 pp 4 5 thereof support it The A conclusion is or for cause to reduce imposing So 2d 1221 a 1222 a can the La App as on or clearly to wrong whether the and legal cause not modify characterized by or an Hosp Eastern Louisiana 1st Cir 114 05 of evidence when there is to no or 917 So 2d 522 weight substantiated competent evidence See Branighan 4th Cir 1978 authority to impose 3 of the proper substantial evidence to Id if there is insufficient only be exercised greater penalty for the appointing a 926 So 2d 545 disregard capricious penalty App or should court of Health La the conclusion is contrary authority cause arbitrary implies reviewing arbitrary capricious 527 writ denied 06 0178 La 4 24 06 The word as reviewing the Board s findings of fact the apply the manifestly to required standard of review are v Dep t of Police 362 Thus unless there is insufficient the discipline the penalty must stand Durden v Plaquemines 930 So 2d 182 insufficient Board was as 5 p such find the Board we The elToneous for cause court 4th Cir App La order s 12 4 06 proper was weight of the evidence detennination is contrary a reinstating Teny that implicit detennination imposing the penalty of tem1ination disregarded the inasmuch 05 1373 185 Like the trial employment Parish Gov to there to was arbitrary in that the and it was capncIOUS the substantiated competent evidence The trial court of termination ordered expressly noted by the appointing authority pointing Teny s reinstatement failure of the Board rather than Board s decision considering to the acts committed cause presented by a stand and any lesser impose Thus a was pay would be of a more 33 the order cause for the discipline but appropriate punishment penalty was not remand to the Board would 4 to the Board within the serve no the province purpose was appointing authority penalty of termination appointing authority the edJ Because the Board s order of reinstatement imposing this erroneous consider court merely 1 2501C manifestly remand is not warranted since the for the finding modify that the Board RS La for clarification the trial suspension without a proved sufficient must matter that it agrees with the to say arbitrary and capricious evidence Finding that under out modify the order of termination remanding the finds that the failure of the Board to Given the greater penalty of the Board to For all these of reasons Terry s reinstatement affirmed Appeal costs to are the trial comi s judgment reversing the Board s order employment with the Thibodaux Police Depaliment is assessed to Jason Teny AFFIRMED IN COMPLIANCE WITH LA 5 U RC A RULE 2 16 1B
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