Edwin Stewart VS LSU Health Sciences Center - Medical Center of Louisiana at New Orleans (2009CA2188 Consolidated With 2009CA2189 2009CA2190)
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 2188 c 2009 CA 2189 c 2009 CA 2190 w w EDWIN STEWART VERSUS LSU HEALTH SCIENCES CENTER MEDICAL CENTER AT NEW ORLEANS W C JEFFERY JENKINS VERSUS LSU HEALTH SCIENCES CENTER MEDICAL CENTER AT NEW ORLEANS CAW ALFRED MILLER VERSUS LSU HEALTH SCIENCES CENTER MEDICAL CENTER AT NEW ORLEANS Judgment Rendered June 11 2010 On Appeal from the Civil Service Commission Numbers 16 16 16 578 583 587 Honorable James A Smith Chairman Donovan A Livaccari Counsel for PlaintiffAppellant New Orleans LA Alfred Miller Philip Kennedy Counsel for Defendant Appellant New Orleans LA LSUHSC Medical Center of New Orleans at Louisiana Robert R Boland Jr Baton Rouge LA Counsel for Defendant Appellant Edwin Stewart Pro Se New Orleans LA Jeffery Jenkins Gretna LA Pro Se State Civil Service Commission BEFORE WHIPPLE HUGHES AND WELCH JJ HUGHES I This is an appeal from the decision of the Louisiana Civil Service Commission to uphold disciplinary action imposed upon a state employee For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY Edwin Stewart Jeffery K Jenkins and appellant Alfred Miller police officers with the Medical Center of Louisiana at New Orleans Police Department MCLNO PD were suspended from duty due to their failure to qualify with their departmentissued firearms They each filed an appeal to the State Civil Service Commission The Civil Service Commission appointed Referee Paul St Dizier to hold a hearing and take evidence on the matter The hearing was held on April 27 2009 The facts and procedural history of this case are thoroughly detailed in the written reasons and conclusions of law assigned by Referee St Dizier as follows Louisiana State University Health Sciences Center LSUHSC Medical Center of Louisiana at New Orleans MCLNO employs Edwin Stewart Jeffery K Jenkins and Alfred Miller hereinafter sometimes referred to collectively as Appellants as Police Officer 3s in the Medical Center of Louisiana at New Orleans Police Department MCLNO PD and they serve with permanent status By letters dated November 14 2008 LSUHSC suspended Appellants for failing their annual Peace Officers Standards and Training POST firearms qualifications LSUHSC suspended Mr Stewart and Mr Jenkins for 57 hours 5 Mr Stewart s suspension was effective January 12 2009 and Mr Jenkins LSUHSC suspension was effective January 26 2009 suspended Mr Miller for 55 hours effective January 18 2009 5 On February 2 2009 Mr Stewart appealed his suspension He complains that LSUHSC failed to provide him with MCLNO PD policy regarding firearms qualification prior to his formal 1 La Const art 10 A 12 grants to the State Civil Service Commission the exclusive power and authority to hear and decide all removal and disciplinary cases As an aid in the performance of its constitutional power and authority the Commission is authorized to appoint a referee with subpoena power and power to administer oaths to take testimony hear and decide removal and disciplinary cases 2 qualification attempts As relief Mr Stewart requests reversal ofthe suspension expungement and back pay Mr Jenkins appealed his suspension on February 6 2009 His appeal is based upon his contention that LSUHSC failed to give him sufficient firearms training prior to his formal qualification attempts As relief Mr Jenkins requests reversal of the suspension expungement and back pay On February 10 2009 Mr Miller filed an appeal of his suspension In his appeal Mr Miller asserts that 1 no written policy regarding firearms qualification existed at the time of his suspension nor had he been given written notice of the firearms qualification policy prior to the formal qualification dates 2 he failed one of his formal qualification attempts due to an eye infection so LSUHSC should not have used that failed attempt against him 3 LSUHSC did not take action against other officers who failed one formal qualification attempt and an unnamed officer who fired a gun into the air 4 he has been harassed and intimidated by his supervisors and 5 MCLNO PD Chief Kenneth C Scott and other ranking members of MCLNO PD carry firearms illegally and without proper qualifications As relief Mr Miller requests reversal of the suspension expungement cessation of the harassment and multiple investigations of the MCLNO administration for violation of the Civil Service Rules and applicable laws On February 17 2009 I consolidated the appeals for hearing in accordance with the provisions of Civil Service Rule 13 I 23 also issued a notice to Mr Miller questioning whether he had alleged sufficient specific facts supporting his claims of disparate treatment except for his allegations regarding Chief Scott I gave him fifteen 15 calendar days to allege facts in support of his disparate treatment claims or I would summarily dismiss them Mr Miller did not respond to the notice so on March 6 2009 1 dismissed his claims of disparate treatment except his claim regarding Chief Scott carrying a firearm illegally and without proper credentials I held a public hearing on April 27 2009 in New Orleans Louisiana Based upon the evidence presented and pursuant to the provisions of Article X A 12 of the Louisiana Constitution of 1974 as amended I make the following findings and reach the following conclusions Findings of Fact 1 LSUHSC employs Appellants as Police Officer 3s in the MCLNO PD and they serve with permanent status Appellants are all experienced veteran police officers Mr Jenkins has been a police officer for 28 years and Mr Miller has been a police officer for 25 years 3 MCLNO PD officers are required to carry firearms as part of their job duties 2 State law requires that all Louisiana police officers successfully complete the POST firearms qualification requirements annually Police officers are required to qualify with the firearms they actually carry while on duty e an officer whose service weapon is a 357 g caliber revolver must qualify with a 357 caliber revolver Any change in service weapons such as a change from a 357 caliber revolver to a 40 caliber semiautomatic pistol requires an additional qualification with the new service weapon before the officer may carry it on duty 3 MCLNO PD policy requires MCLNO PD officers to maintain their annual POST firearms qualifications Failure to do so may result in an officer being disallowed from carrying firearms while on duty and disciplinary action up to and including dismissal 4 In 2007 MCLNO PD management decided to standardize the firearms carried by its officers by requiring them to carry departmentissued Glock Model 17 9 mm semi automatic pistols while on duty At the time MCLNO PD management made this decision and until full implementation the officers provided firearms of their choosing as long as they were properly POST qualified for their chosen firearms Under the weapons standardization policy all officers were required to qualify with and thereafter carry a Glock Model 17 If an officer failed to qualify with the Glock heshe could not carry any firearm on duty subsequent to the date of failure 5 MCLNO PD s management goal was full implementation of the weapons standardization policy by the end of October 2008 To simplify the annual monitoring of the officers POST qualifications MCLNO PD management also decided to have all officers formally qualify during the month of October 2008 6 MCLNO PD issued the Glocks to the officers at an eight 8 hour transitional training held in MCLNO sbasement in early 2008 and informed the officers that the Glocks would be their new service weapons once the POST qualification process was completed A POST certified instructor presented the transitional training The training covered basic information about the Glock such as how to hold sight assemble clean and maintain it but did not include firing the weapons 7 To prepare the officers for eventual qualification with the Glocks MCLNO PD scheduled practice range dates with El the new weapons at Camp Villere in Slidell Sixteen practice range dates were scheduled around the offdays for each shift Four of the practice dates were mandatory and each officer had to attend at least one before their first formal attempt at qualification The remainder of the practice dates were voluntary and the officers could attend as many as they wished The officers received compensation for attending the practice sessions and MCLNO PD provided the ammunition targets and range fees at no charge to the officers MCLNO PD also provided ammunition and targets at no charge to officers who wanted to practice with the Glocks on their own 8 The practice sessions were held from May 16 2008 through October 2 2008 Four officers all either expert or master marksmen were present at each practice session to assist the other officers with their shooting The practice sessions lasted several hours Each practice session began with shooting practice and ended with practice attempts at the POST qualification test 9 Shift supervisors informed the officers of the dates of the practice sessions and the formal qualification dates at daily roll call and by email The dates were also posted on the bulletin board in the MCLNO PD office 10 Chief Kenneth C Scott MCLNO PD Chief and s MCLNO Director of Public Safety held mandatory meetings with all the officers in July 2008 At these meetings Chief Scott discussed issues concerning the changeover to the Glocks including qualification requirements and practice sessions 11 On October 3 2008 Captain Jonathan P Holdam MCLNO PD training officer distributed a copy of the s MCLNO PD policy regarding POST firearms qualification to the shift supervisors who in turn gave hard copies to the officers at roll call This was the procedure in effect at the time for distributing policy to the officers 12 Formal POST qualification sessions began in October 2008 They were held in Plaquemines Parish under the supervision of a POST certified firearms instructor The course consisted of shooting at paper silhouette targets Officers had three opportunities to shoot the course at each session and the scores were averaged To qualify an officer had to score at least 96 out of a possible 120 points 13 Officers who failed to qualify at their first formal qualification session were given a second chance to 5 qualify at a subsequent formal qualification session and were allowed to keep working and carry their pre Glock firearms Officers who failed to qualify at their second formal qualification session had their firearm privileges suspended and were initially barred from reporting for duty due to their inability to carry firearms After several officers had failed to qualify at their second formal qualification sessions Chief Scott decided to allow those officers to return to duty without their weapons and be posted to certain limited positions in the mental health areas of the hospital where officers do not carry firearms 14 Each Appellant attended his mandatory practice session at Camp Villere before his first attempt at formal qualification 15 Mr Stewart attempted formal qualification at two separate sessions in October 2008 but failed both times On the day of his second failed attempt he was placed on leave without pay LWOP for 57 hours and his firearm 5 privileges were suspended After Mr Stewart appealed his placement on LWOP LSUHSC rescinded the LWOP and imposed the 57 5hour suspension at issue in this appeal The 57 hours represents the time from his 5 second failed attempt at formal qualification until Chief Scott decided that the officers who had failed to qualify could return to work without their weapons in the mental health areas of the hospital After taking a 40 hour remedial class twice Mr Stewart successfully qualified his firearm privileges were restored and he resumed his normal duties 16 Mr Jenkins attempted formal qualification at two separate sessions in October 2008 but failed both times On the day ofhis second failed attempt he was placed on LWOP for 57 hours and his firearm privileges were 5 suspended LSUHSC later rescinded the LWOP and imposed the 57 5hour suspension at issue in this appeal The 57 hours represents the time from his second failed 5 attempt at formal qualification until Chief Scott decided that the officers who had failed to qualify could return to work without their weapons in the mental health areas of the hospital After taking a 40hour remedial class Mr Jenkins successfully qualified his firearm privileges were restored and he resumed his normal duties 17 Mr Miller attempted formal qualification at two separate sessions in October 2008 but failed both times On the day of his second failed attempt he was placed on LWOP for 55 hours and his firearm privileges were 5 suspended After Mr Miller appealed his placement on LWOP LSUHSC rescinded the LWOP and imposed the 5hour suspension at issue in this appeal The 55 55 5 l hours represents the time from his second failed attempt at formal qualification until he successfully qualified on his third attempt After he successfully qualified on his third attempt Mr Miller firearm privileges were s restored and he resumed his normal duties 18 After his second failed attempt at formal qualification Mr Miller informed Captain Holdam that he was having eye problems While he was out on LWOP and barred from reporting for duty after his second failed formal qualification attempt Mr Miller provided Captain Holdam with a doctor excuse regarding the eye s problems 19 Out of 103 MCLNO PD officers only seven officers failed formal qualification on their second attempt and were suspended Approximately 90 of the officers formally qualified on their first attempt 20 As an appointed chief of police Chief Scott is exempt from the annual POST firearms qualification requirements under La R 40 but he does S 2402 a 1 possess a POST firearms qualification 21 Before LSUHSC took disciplinary action against Mr Miller it gave him a pre disciplinary letter outlining the charges along with a request form for a pre disciplinary hearing Mr Miller then had a pre disciplinary hearing with Adler Voltaire MCLNO Chief Administrative s Officer and Chief Scott Discussion and Conclusions of Law The right of a classified state employee to appeal disciplinary actions is provided for in Article X A 8 of the Louisiana Constitution of 1974 That section provides that t burden he of proof on appeal as to the facts shall be on the appointing authority The appointing authority must prove its case by a preponderance of the evidence A preponderance of the evidence means evidence that is of greater weight or more convincing than that which is offered in opposition thereto Proof is sufficient to constitute a preponderance when taken as a whole it shows the fact or causation sought to be proved as more probable than not Wopara v State Employees Group Benefits Program 2002 2641 La 1 Cir 7 859 App 03 2 2d So 67 LSUHSC charges Appellants with failing their annual POST firearms qualifications The evidence adduced at the hearing indicates that Appellants failed their first and second formal attempts at qualification This resulted in Appellants inability to carry their departmentissued Glock pistols as mandated by MCLNO PD management which in turn rendered them unable 7 to perform their usual duties as Police Officer 3s As to Messrs Stewart and Jenkins this inability to work continued until Chief Scott made the generous decision to allow their assignment to the mental health areas In Mr Miller case it continued until s he formally qualified on his third attempt Their failure to qualify also impeded the implementation of the weapons standardization policy and necessitated the expenditure of agency time and resources to rectify their shortcomings Appellants had months to prepare for their qualifications this was not a pop quiz situation Moreover one would expect experienced veteran officers who had been through the qualification process many times to qualify without much difficulty I find the defenses offered by Appellants in response to the charges unpersuasive Mr Stewart and Mr Miller complain that they were not given a copy of the MCLNO PD policy regarding firearms qualification prior to their formal qualification attempts Mr Miller denies that a policy even existed These contentions are without merit Captain Holdam testified that the shift supervisors distributed the firearms policy to the officers at roll call in early October 2008 In any event Appellants are veteran police officers and POST firearm qualification is an annual event The necessity of qualifying with the new Glocks was discussed with the officers at the transitional training in early 2008 when the Glocks were handed out and at the mandatory meetings with Chief Scott in July 2008 Sixteen practice sessions were scheduled before the formal qualification sessions were held It is simply unbelievable that any MCLNO PD officers were unaware ofthe necessity of formal qualification with the Glocks Mr Jenkins contends that MCLNO PD did not provide him with proper training until after he failed to qualify I disagree MCLNO PD provided a basic orientation course when the Glocks were given to the officers in early 2008 practice sessions were scheduled Sixteen and the officers were compensated for attending Ammunition targets and range fees were supplied at no charge and four officers proficient in firearm use were available at each practice session to assist the other officers Mr Jenkins only attended one practice session prior to his first formal qualification attempt Given that approximately 90 of the officers qualified on their first attempt I find that the training provided by MCLNO was more than adequate Mr Miller raises several additional defenses none ofwhich has any merit He contends an eye infection caused him to fail formal qualification on his first attempt and that he so informed Captain Holdam that same day However Mr Miller reported for duty that day and did not report any eye problems prior to shooting Captain Holdam testified Mr Miller did not report any eye problems until after q his second failed formal qualification attempt and that Mr Miller did not provide him with any details Captain Holdam did testify that Mr Miller gave him a doctor excuse after Mr Miller placement on s s LWOP but this doctor excuse was not produced at the s hearing no medical records were introduced into evidence and the doctor did not testify The only evidence that Mr Miller had an eye infection at his first formal qualification attempt is his self serving testimony which I reject Mr Miller asserts that he was harassed and intimidated by his supervisors but he did not produce any evidence in support of these allegations He further asserts that he is the victim of disparate treatment in that Chief Scott carries a firearm but lacks POST firearms qualification Disparate treatment is a form of discrimination therefore under Civil Service Rule 2 s 19 13 Mr Miller has the burden of proof on this issue Chief Scott testified without contradiction that he is an appointed chief of police and thus exempt from POST firearms qualification requirements under La R 40 but S 2402 a 1 that he does possess a POST firearms qualification Mr Miller has failed to prove disparate treatment At the hearing Mr Miller challenged the adequacy of the pre disciplinary procedure used by LSUHSC This challenge is unfounded Chief Scott testified that Mr Miller was given a pre disciplinary letter describing the charges along with a request from for a pre disciplinary hearing which was subsequently held with Mr Voltaire and Chief Scott Mr Miller complains that he was denied counsel at the pre disciplinary hearing but an agency is not required to allow an employee to have counsel at a pre disciplinary hearing See Green v Department of Transportation and Development CSC Docket No S 11229 LSUHSC complied with Civil Service Rule 12 by giving Mr Miller sufficient notice of the charges 7 against him and a reasonable opportunity to tell his side of the story Appellants knew in early 2008 that they would have to qualify with the Glocks They were given basic training with the new weapons and plenty of opportunities to practice with them before the formal qualification sessions began in October 2008 Despite the best efforts of MCLNO PD to facilitate the transition to the Glocks Appellants failed to meet the formal qualification requirements as directed and thus were unable to work their normal details for a few days Although the Appellants finally formally qualified on their third attempts the agency had to expend additional time and resources to enable them to do so LSUHSC has proved cause for discipline against Appellants As to the penalty the Civil Service Commission and its Referees have a duty to decide whether the punishment imposed is commensurate with the dereliction Guillory v 0 Department of Transp Development 475 So 368 370 2d 371 La I Cir 1985 Based upon the foregoing reasons App I conclude that LSUHSC proved legal cause for discipline and that the suspensions imposed are commensurate with the offenses Accordingly I hereby deny these appeals Footnotes omitted Pursuant to Civil Service Rule 13 appellant Alfred Miller filed a 36 request for the Commission to review the Referee decision and for s reversal After review the Commission denied Mr Miller request At s that time the decision of the Referee became the final decision of the Commission Mr Miller then appealed to this court He raises the following assignments of error 1 the Civil Service Commission erred in finding legal cause for the discipline of Officers Miller Stewart and Jenkins 2 the Civil Service Commission erred in finding that the discipline imposed on Officer Miller was commensurate with the offending conduct 3 the Civil Service Commission erred in finding that Officer Miller conduct affected s the efficient and orderly operation ofL Health Sciences Center Medical U S Center of Louisiana at New Orleans 4 the Civil Service Commission erred in finding that there was a real and substantial relationship between Officer s Miller conduct and any inefficient or disorderly operation of L Health U S Sciences Center Medical Center of Louisiana at New Orleans 5 the Civil Service Commission erred in finding that the decision to discipline Officer Miller was not arbitrary and capricious and 6 the Civil Service z Mr Jenkins and Mr Stewart did not file a request for review of the decision of the Referee The decision of the Referee became final as to them at that time 3 Article X 12 of the Louisiana Constitution provides in part that tlhe final decision of the commission shall be subject to review on any question of law or fact upon appeal to the court of appeal wherein the commission is located upon application filed with the commission within thirty calendar days after its decision becomes final 4 While Mr Miller includes Mr Jenkins and Mr Stewart in this assignment of error and in assignment of error No 6 we note that no appeal was filed on their behalf 10 Commission erred in not overturning the disciplinary action taken against Officers Miller Stewart and Jenkins DISCUSSION The Commission has a duty to independently decide from the facts presented whether the appointing authority had good or lawful cause for taking disciplinary action and if so whether the punishment imposed was commensurate with the infraction Walters v Dep of Police 454 So t 2d 106 113 La 1984 Legal cause for disciplinary action exists whenever an sconduct impairs the efficiency of the public service in which that employee employee is engaged Cittadino v Department of Police 558 So 1311 2d 1315 La 4 Cir App 1990 On review to this court we must apply the manifestly erroneous or clearly wrong standard of review to the Commission findings of fact s Bannister v Department of Streets 950404 p 8 La 1 666 So 96 16 2d 641 647 However in reviewing the Commission sexercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction this Court should not modify the Commission order unless it is arbitrary capricious or s characterized by an abuse of discretion Walters 454 So at 114 2d Arbitrary or capricious means that there is no rational basis for the action taken by the Commission Bannister v Department of Streets 95 0404 p 8 La 1 666 So 641 647 96 16 2d The evidence establishes that the ability to carry a weapon is an essential part of the duties and responsibilities of a Police Officer at MCLNO In order for a police officer to maintain his commission to carry a weapon he must qualify with that weapon according to the standards set forth by the Peace Officer Standards and Training course P In T S O 11 2008 MCLNO PD began its transition to a departmentwide standardized firearm the 9 mm Glock The new guns were issued to the officers during the first quarter of 2008 At that time an 8hour transitional meeting was held wherein the officers were both informed of the departmentwide transition to the new guns and instructed regarding the mechanics of the gun ihow to load it and break it down among other things Chief Scott e testified that in July he also held a mandatory meeting wherein he advised the officers of the upcoming qualifications for certification with the Glock Sixteen practice sessions were scheduled The list of dates for the practice sessions were emailed and posted on the bulletin board in the MCLNO PD office The officers were also advised of the available practice sessions by their supervisor at roll call The qualification dates were emailed to the supervisors on October 3 2008 The supervisors then scheduled their shifts for qualification There are one hundred three officers employed by the MCLNO PD Officer Miller was one of only six officers who failed to qualify at the second qualification attempt All six of those officers were placed on leave without pay LWOP pending qualification The Use of Necessary Force policy of MCLNO PD states in part that If officers are unable to obtain a qualifying score on the Peace Officer Standards and Training course they will be given an opportunity to fire again their scores will be added together and divided by the amount of attempts If the officer is unable to qualify during his annual P her T S O certifying qualification period then that officer will surrender to the Range Officer or their sic immediate supervisor all departmental weapons and will not resume enforcement duties until they have successfully completed the course Emphasis added Officer Miller argues that he failed his first qualification attempt due to an eye infection Captain Holdam testified that Mr Miller made no 12 mention of an eye problem until after he failed the qualification the second time Nevertheless Mr Miller admits that he never requested that the certification attempt be rescheduled as specified by MCLNO PD policy Any officer who is injured or has other mitigating circumstances which prohibit the officer from qualifying may request permission of the Chief of Police to delay qualification until the officer is cleared for duty After a thorough review of the testimony and evidence presented to the Commission in this case we are unable to say that there was error in either the findings of fact or the action taken There is a reasonable basis in the record for concluding that at a minimum Mr Miller knew that the department was requiring transition to the new firearm was given ample opportunity to train with the new weapon and yet failed his annual P T S O qualification The inability of a police officer to carry a firearm impedes that officer ability to properly perform his duties Moreover the written s policy states that if an officer does not P certify he will not resume T S O enforcement duties until he does certify We cannot then say that the s Commission action was arbitrary capricious or an abuse of discretion CONCLUSION For the reasons assigned herein the judgment of the Civil Service Commission is affirmed All costs of this appeal are to be borne by the appellant Alfred Miller AFFIRMED 13
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