Charles Methvien, Jr. VS Department of Health & Hospitals, Office of Public Health
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CA 0503 7 CHARLES METHVIEN JR VERSUS DEPARTMENT OF HEALTH HOSPITALS OFFICE OF PUBLIC HEALTH r Judgment Rendered October 29 2010 Appealed from the State Civil Service Commission In and for the State of Louisiana Department of State Civil Service Docket Number 16670 The Honorable James A Smith Chairman Burl Cain Vice Chairman Chatham Reed David Duplantier G Lee Griffin Wilfred Pierre and John McLure Floyd Falcon Baton Rouge LA Counsel for PlaintiffAppellee Neal R Elliott Jr Adrienne Bordelon Counsel for Defendant Appellant Department of Health and Hospitals Baton Rouge LA Office of Public Health Robert R Boland Jr Counsel for the Department of State Baton Rouge LA Civil Service Charles Methvien Jr BEFORE WHIPPLE McDONALD AND McCLENDON JJ WHIPPLE J This matter is before us on appeal by the Department of Health and Hospitals Office of Public Health hereinafter DHHOPH from a decision of the State Civil Service Commission hereinafter the Commission reversing a disciplinary action imposed by the appointing authority against Charles Methvien Jr For the following reasons we affirm FACTS AND PROCEDURAL HISTORY At all pertinent times Charles Methvien was employed by the DHH OPH s a Sanitarian 5 serving with permanent status In this capacity Methvien was the head Sanitarian or Parish Manager for Ascension Parish On April 22 2009 Methvien received a phone call from Brenda Melancon the Mayor of the Town of Sorrento Mayor Melancon called Methvien for assistance with problems associated with a sewerage collection system at Oakwood Estates Mobile Home Park which was located outside the city limits of Sorrento but was hooked into the town sewerage collection system After their phone s conversation Mayor Melancon attempted to email Methvien copies of letters written by her on behalf of the Town of Sorrento to the owner of the property outlining the history and details of this particular problem However Methvien did not receive the emails because Mayor Melancon had inadvertently misspelled his name in his email address On April 24 2009 Methvien supervisor Silas Corkern who was a s DHHOPH Regional Director for Region 2 received an email from Lauren Mendes the Public Information Officer for DHH inquiring whether anyone in Region 2 had reported a complaint being lodged by the Mayor of Sorrento about raw sewage being discharged onto the ground near Oakwood Estates Mobile Home Park in Sorrento In her email Ms Mendes indicated that she had received a phone call from Channel 2 News claiming that the Mayor of 2 Sorrento had contacted DHHOPH about this problem and wanted to know what DHHOPH was going to do about the leaky sewerage discharge which had resulted in raw sewage spilling onto the ground Corkern contacted Methvien to see if he had any information about the alleged complaint Methvien acknowledged that he had received a phone call from Mayor Melancon but indicated that he was not aware that raw sewage was being discharged on the ground Thus he did not categorize the mayor phone call s as an official complaint necessitating implementation of DHHOPH s Standard Operating Procedures for Sewage Complaints SOPSC which would require him to inspect the sewerage lines or system or dispatch someone from DHHOPH to perform an inspection Upon learning that the mayor had in fact spoken to Methvien to advise DHHOPH of the problem Corkern dispatched Caryn Benjamin a DHHOPH engineer to inspect the area Upon inspection Benjamin discovered that raw sewage was being discharged onto the ground in the area of Oakwood Estates On May 21 2009 Methvien received a letter from Melissa Guillory the Regional Administrator for Region 2 and the appointing authority for DHH OPH advising that a disciplinary action was being taken against him consisting of a reduction of his pay by ten percent the equivalent of a oneday suspension for one pay period commencing June 1 2009 and ending on June 14 2009 for his failure to follow standard operating procedures in response to a sewage complaint that he received on April 22 2009 for Oakwood Estates Mobile Home Park in Sorrento Louisiana The letter further set forth the actions and series of events constituting the offense for which Methvien was being disciplined as follows 1 Corkern testified that a complaint is information received by the public or public official of public health significance while Methvien testified that a complaint is a report of an imminent health hazard 3 On Friday April 24 2009 around 11 a Silas Corkern 30 m contacted you by phone regarding the above noted complaint You informed Mr Corkern that the Mayor of the Town of Sorrento Brenda Melancon contacted you on April 22 2009 regarding the layout of the collection lines in Oakwood Estates Mobile Home Park in Sorrento You assured Mr Corkern that there was no raw sewage being discharged You failed to log the complaint received on April 22 2009 You also failed to send someone to investigate the complaint On April 24 2009 Silas Corkern sent Caryn Benjamin Engineer 5 to Oakwood Estates to investigate and she determined that raw sewage was being discharged onto the surface of the ground at Lot 41 between Lots 23 and 24 and between Lots 34 and 36 Methvien appealed the disciplinary action to the State Civil Service Commission A twoday public hearing was held before a referee appointed by the Commission On November 9 2009 the referee rendered a decision finding as fact that Ms Melancon had spoken with Methvien and told him that there was a problem with the layout of the sewer collection system for Oakwood Estates and the ability of its collection lines to adequately convey waste to the community system that this was an ongoing problem and that the town of Sorrento had mailed a letter to the owner of Oakwood Estates regarding the sewage concern The referee further found as fact that Ms Melancon did not tell Mr Methvien that there was raw sewage on the ground at Oakwood Estates The referee also found that because Methvien had concluded based on the information relayed by Mayor Melancon that there was no imminent public health hazard and thus that no complaint existed there was no reason for him to follow DHHOPH Standard Operating Procedures for Sewage s Complaints Finding that DHHOPH failed to prove the charge the referee reversed the disciplinary action imposed by DHHOPH On November 24 2009 DHHOPH filed an application for review of the referee decision by the s Commission The Commission denied DHHOPH application for review on s January 14 2010 upholding the decision of the referee DHHOPH filed the instant appeal contending that the Commission erred 1 in reversing the disciplinary action imposed by DHHOPH against Methvien by finding that no complaint existed since Methvien determined that the facts reported by Ms Melancon did not present an imminent public health hazard and 2 substituting its legal conclusion of what constitutes a complaint under the SOPSC for that of the public health agency s management STANDARD OF REVIEW On appeal factual determinations of the Commission or a referee are entitled to great weight and should not be reversed unless clearly wrong or manifestly erroneous James v LSU Health Sciences Center Medical Center of Louisiana at New Orleans 2001 1853 La App I Cir 11 834 So 2d 02 8 470 472 writ denied 20030214 La 4 841 So 2d 792 Additionally 03 21 decisions of the Commission or the referee as to whether the discipline imposed was based on legal cause and commensurate with the infraction should not be reversed unless such decisions are arbitrary capricious or an abuse of discretion Arbitrary or capricious means that there is no rational basis for the action taken by the Commission Bannister v Department of Streets 95 0404 La 1 666 So 2d 641 647 96 16 However with respect to the s Commission decisions as to jurisdiction procedure and interpretation of laws and regulations the judicial review function is not so limited Rather the court performs its traditional plenary functions and applies the error of law standard James v LSU Health Sciences Center Medical Center of Louisiana at New Orleans 834 So 2d at 472 ASSIGNMENT OF ERROR NUMBER ONE In its first assignment of error DHHOPH contends that the civil service referee improperly focused on defining a complaint rather than on Methvien s E failure to promptly address the reported situation and initiate a prompt investigation i to implement DHHOPH SOPSC and whether this failure e s harmed the public health service he is charged with protecting The stated basis for the disciplinary action which DHHOPH sought to impose against Methvien was his failure to follow standard operating procedures in response to a sewerage complaint that Methvien received on April 22 2009 for Oakwood Estates Mobile Home Park in Sorrento DHHOPH 2 s Standard Operating Procedures for Sewerage Complaints provide the following StepbyStep Instructions for the handling of sewerage complaints Step 1 Complete the top of the complaint form when the complaint is received Step 2 Complainant must sign the complaint Step 3 Assign the complaint a number and log the information in the Complaint Log Book The complaint number will begin with the month of the complaint Examples NovO1 Nov02 DecO1 Dec02 etc Step 4 Notify regional and central offices by fax or e that action mail is being taken on the complaint Step 5 Make a field inspection of the subject premise to determine the validity of the complaint and record all the information using the complaint form appropriate sewage form and Extra Data Sheet for additional notes and comments Take A detailed photographs if possible of noted violations Step 6 When conditions warrant the property owner must be issued a Notice of Violations either by issuing a Notice of Unsanitary Conditions Form LHS 10 or by appropriate regulatory letter see sewage manual Step 7 Follow the appropriate SOP see manual and enforcement procedures if necessary according to Part 1 of the State Sanitary Code Step 8 When the problem concerning the complaint is corrected record the information on the complaint form or extra data sheet and file the complaint as bated Step 9 Advise regional and central offices by fax or email of the status of the complaint Step 10 The complainant person who made the complaint should be notified of actions taken NOTE All violations of Part 13 of the Louisiana Administrative Code must be addressed Louisiana In reversing the appointing authority disciplinary action the s referee concluded as follows DHHOPH charges Mr Methvien with failing to follow its Standard Operating Procedures for S C in ewerage omplaints response to a sewage complaint that he received on April 22 2009 from Mayor Melancon regarding Oakwood Estates The Standard Operating Procedures for sewerage complaints require that all complaints be logged and a field inspection made A complaint is the report of an imminent public health hazard All telephone calls received by the Ascension Parish Health Unit are not complaints Mr Methvien as Parish Manager of the Ascension Parish Health Unit has discretion in determining what telephone calls constitute complaints Mayor Melancon did not inform Mr Methvien that raw sewerage was on the ground she merely expressed a general concern about the design of the Oakwood Estates system Based on the information received from Mayor Melancon Mr Methvien determined that there was no imminent public health hazard and thus no complaint existed Therefore since there was no complaint made to Mr Methvien there was no reason for him to follow DHHOPH Standard Operating Procedures for s sewerage complaints I find that DHHOPH has failed to prove the charge In support of this assignment of error on appeal DHHOPH contends that s Methvien failure to properly identify and treat the issues presented by the mayor as a complaint and to promptly initiate an investigation by implementing the SOPSC constituted improper conduct on his part According to DHHOPH Methvien failure to log and address the reported sewage s problem harmed the public health service Methvien was charged with protecting DHHOPH contends that had the news media not been contacted after Mayor Melancon reported the problem the situation may have gone unaddressed for many more days In response Methvien contends that he specifically chose not to implement the SOPSC given the information relayed to him in the phone call by Mayor Melancon which in his view did not amount to a complaint Methvien testified that his understanding of a complaint as would warrant such action involved situations in which the DHHOPH is notified of an 7 imminent health hazard sewage on the ground or of a bad situation in a restaurant Also he specifically denied that Mayor Melancon told him that there was raw sewage on the ground Instead Methvien testified that his conversation with Mayor Melancon dealt with the setup of the sewage collection transition line which carries sewage from Oakwood Estates to the oxidation pond for the Town of Sorrento Methvien testified that he asked Mayor Melancon to send him copies of the letters she had sent to the property owner and advised her that he would forward them to an engineer from DHH OPH to review He testified that if there was a problem with the design and construction of the sewerage lines an engineer would have been the proper person to address it As such he classified the information provided by Melancon as a call and candidly acknowledged that he did not go out to inspect the lines or system at the scene nor did he dispatch anyone else from DHHOPH to the scene Methvien explained that a call differed from a complaint in that a call is an information scenario in which someone calls the OPH and needs to retrieve information on how to handle a situation in reference to the Louisiana Sanitary Code Mayor Melancon testified that she called the DHHOPH several times and eventually spoke to Methvien Although Mayor Melancon could not recall whether she specifically advised Methvien that raw sewage was being discharged onto the ground she testified that she remembered telling him that there were serious sewage problems at Oakwood Estates Mobile Home Park After her conversation with Methvien she attempted to email Methvien copies of two letters that she had sent to the owner of the property wherein she Mayor 3 Melancon testified that she called the Board of Health and after she told them about the serious sewage problems herein they told her that she needed to speak to Methvien Mayor Melancon testified that she then called for Methvien several times and he was not in the office but that she eventually did catch him there and was able to speak to him specifically stated in one I am asking the Board of Health to help the Town of Sorrento in making them fix their sewer problems or shut them down Please help In another dated September 30 2008 she stated According to the Louisiana Rural Water Association LRWA there were sewer pipes above ground broken sewer lines and raw sewage on the grounds Methvien testified that although he did not receive these emails had he known of their content he would have immediately implemented the standard operating procedures Melancon testified that by calling the DHHOPH she was filing a complaint Supervisor Corkern testified and admitted that DHHOPH standard s operating procedure does not define complaint However he contended that any phone call of public health significance is considered a complaint Corkern testified that although a Parish Manager has some discretion in determining whether a call constitutes a complaint any time a call is received by a public official an investigation should be initiated Corkem further testified that Methvien told him that during their conversation Mayor Melancon advised Methvien that the sewer lines at Oakwood Estates were installed backwards Corkern testified that given this information by the mayor Methvien should have known that if the design of the lines was such that the lines were installed backwards raw sewage was being discharged onto the ground Methvien denied reporting this to Corkern and testified that he did not know the lines were tied in backwards until June 9 2009 when the city dug up the collection line and found that the tie in was backwards and there was a six inch hole in the collection line Undisputedly Methvien did not follow the standard operating procedures for a sewage complaint given his candid testimony that he did not consider faulty infiltration or faulty construction of the collection lines to be a sewage 6 complaint Instead based on the information received the matter appeared to involve a problem of faulty construction In reversing the disciplinary action the referee noted that considering Mayor Melancon did not advise Methvien that raw sewage was on the ground Methvien utilized his discretion and detennined that there was no imminent health hazard and accordingly no need to implement the SOPSC Although we may have determined otherwise given the standard of review by which we are bound we cannot say that the referee s factual findings are manifestly erroneous or that the decision to reverse the disciplinary action was arbitrary capricious or an abuse of discretion In doing so we are mindful that on appeal the issue to be resolved by a reviewing court is not whether the trieroffact was right or wrong but whether the factfinder conclusion was a reasonable one Stobart v State Department s of Transportation and Development 617 So 2d 880 882 La 1993 Where factual findings are based on determinations regarding the credibility of witnesses the trierof fact findings demand great deference s Boudreaux v Jeff 2003 1932 La App 0 Cir 9 884 So 2d 665 671 As the trier of 04 17 fact the referee was empowered to accept or reject in whole or in part the testimony of any witness deemed lacking in credibility See Verges v Verges 2001 0208 La App 1 Cir 3 815 So 2d 356 363 writ denied 2002 51 02 28 1528 La 9 825 So 2d 1179 Where as here there are two permissible 02 20 views of the evidence the factfinder choice between them cannot be s manifestly erroneous or clearly wrong Stobart v State Department of Transportation and Development 617 So 2d at 882 Mayor Melancon testimony that she did not recall advising Methvien s that raw sewage was being discharged on the on the ground combined with the discretion afforded Methvien in determining which calls constitute a complaint 10 provide a rational basis for the action taken by the Commission Thus on review we find no merit to this assignment of error ASSIGNMENT OF ERROR NUMBER TWO In its second assignment of error DHHOPH contends that the referee erred and abused its discretion in substituting its interpretation of what qualifies as a complaint under the SOPSC for that of the administering DHHOHP management DHHOPH argues that the referee accepted Methvien self s serving interpretation of what constitutes a complaint over that of his supervisor Corkern While acknowledging that DHHOPH SOPSC requires that a s complaint be assigned a number that the complaint information be logged into the appropriate Complaint Log Book and that a field inspection of the subject premises be conducted by a sanitarian or an engineer to determine the validity of the complaint the referee also apparently recognized that a complaint is not specifically defined in the SOPSC The referee determined that a complaint as contemplated therein is a report by anyone to DHHOPH which indicates an imminent public health hazard Not all telephone calls received at the Ascension Parish Health Unit or by Mr Methvien personally are considered complaints As the Parish Manager Mr Methvien has the discretion to determine which telephone calls are considered complaints The information reported to Mr Methvien by Mayor Melancon on April 22 2009 did not rise to the level of a complaint as no imminent public health hazard was indicated Thus the referee rejected the testimony of Corkem as to what he and others including Methvien knew would constitute a complaint In rejecting this claim by DHHOPH the referee obviously weighed two permissible views of the evidence as to what constitutes a complaint Although Methvien testimony may have been self serving in his respect his s 11 testimony was accepted by the referee and the Commission Thus we will not reweigh it on appeal See Alford v Sewerage and Water Board of New Orleans 562 So 2d 1167 11681169 La App 4 Cir 1990 Accordingly we also find no merit to this assignment of error CONCLUSION For the above and foregoing reasons the November 9 2009 decision of the Commission is affirmed Costs of this appeal in the amount of 513 are 50 assessed against the State of Louisiana Department of Health and Hospitals Office of Public Health AFFIRMED 12
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