author:
PER CURIAM.
     JOHNSON, Justice, VICTORY, J., KNOLL, Justice,

text:
    Donna HOWARD, Individually and on Behalf of Her Two Minor Children, Chad Howard and Kendra Howard, Clarence Johnson, Joyce Johnson, Orville Johnson and Helen Johnson v. UNION CARBIDE CORPORATION.
    No. 2009-C-2750.
    Supreme Court of Louisiana.
    Oct. 19, 2010.
    Rehearing Denied Dec. 10, 2010.

      Taylor, Porter, Brooks & Phillips, LLP, David Mark Bienvenu, Jr., Lexi Trahan Holinga, John Parham Murrill, Baton Rouge, for Applicant.
    Roy F. Amedee, Jr., New Orleans, Paula Adams Ates, Destrehan, Pendley, Baudin & Coffin, LLP, Patrick W. Pendley, Christopher L. Coffin, Stanley Paul Baudin, Nicholas Ryan Rockforte, Plaquemine, The Lemmon Law Firm, LLC, Megan E. Matheny, Orma L. Netting, Andrew A. Lemmon, Hahnville, for Respondent.
   PER CURIAM.

_JjWe granted certiorari in this case to determine whether the district court abused its discretion in awarding damages in a class action suit resulting from a chemical leak. For the reasons that follow, we conclude the district court abused its discretion.

UNDERLYING FACTS AND PROCEDURAL HISTORY

This case arises from a chemical leak at a plant in Taft, Louisiana owned by defendant, Union Carbide Corporation. The leak commenced about 10:00 p.m. on Thursday, September 10, 1998, and lasted until 3:00 p.m. on Friday, September 11, 1998. Approximately 4.6 million pounds of naphtha vaporized as a result of the leak, and it was dispersed into the communities surrounding the facility, including the towns of Montz and Killona.

Thereafter, plaintiffs filed the instant class action litigation. The district court certified a class of persons living within a designated geographical area during the time of the leak and who “experienced the physical symptoms which include any or all of the following — eyes, nose, or throat irritation, coughing, choking or gagging, Lor nausea, as a result of their exposure to naphtha or other chemical substance release from Union Carbide.” The certification judgment was affirmed on appeal. Howard v. Union Carbide Corporation, 04-1035 (La.App. 5 Cir. 2/15/05), 897 So.2d 768, writ denied, 05-769 (La.5/6/05), 901 So.2d 1106.

By agreement of the parties, the district court conducted a trial of certain randomly-selected claimants to determine: (1) whether claimants were exposed to the naphtha fumes; (2) whether they suffered compensable damages; and (3) the amount of them damages.

At trial, the district court heard testimony from Dr. John B. Sullivan Jr., a medical toxicologist, who was accepted as an expert in the fields of medical toxicology and environmental health. Dr. Sullivan testified there was no doubt in his mind that an exposure to naphtha at certain concentra-' tions could produce symptoms the claimants reported. In his opinion, an acute onset of symptoms would induce some irritation of the eyes, nose, and throat. He also testified that it was reasonable to assume someone closer to the source would receive a higher concentration than someone further away.

The district court also received into evidence the deposition of Dr. William Nas-setta, an expert in occupational medicine. Dr. Nassetta testified that usually people experience irritant types of effects from exposure to naphtha. He described these effects as stinging in the eyes, tearful eyes, and stinging in the membranes that line the nose, and he also noted a person could get a sore throat or experience coughing. He further testified that naphtha is a central nervous system depressant, and one could see some non-specific central nervous system signs or symptoms, such 13as headaches, nausea, dizziness, and a sensation of almost feeling drunk. Dr. Nassetta stated there could be a plume release within inches of a person without any effect to that person, but a person nearby could have a very significant effect.

At the conclusion of trial, the district court awarded damages to twelve claimants, with general damage awards ranging from $1,500 to $3,500. The court awarded the highest damages, $3,500 each, to Martin Granier, Lionel Harry, Anne Ockmond, Franklin McGinnis, and James McCormick, who were in the plant at the time of the release. The next highest award,$2,500, was made to Lisa McKnight, who was working near the plant on the night of the release. The court awarded $2,000 each to June Gross and Dorothy Richard, who lived in Montz, Louisiana. Finally, the lowest awards, $1,500 each, were made to Ella Mae Darrensbourg, Colleen Lathers, Tone Silas, and Cynthia Johnson-Gordon. These claimants lived in Killona, Louisiana, near the fringe of the exposure area.

Defendant filed a motion for new trial, arguing the general damage awards were excessive, considering the exposure and proof of damages. Specifically, it noted none of the claimants testified they sought medical attention, evacuated, or missed any work. The district court denied the motion for new trial.

Defendant appealed. The court of appeal affirmed the twelve damage awards at issue in a split decision. Two judges dissented in part, and would have reduced the damage awards. Howard v. Union Carbide Corp., 08-750 (La.App. 5 Cir. 10/27/09), 21 So.3d 1084.

|4Upon defendant’s application, we granted certiorari to consider the correctness of the court of appeal’s opinion. Howard v. Union Carbide Corp., 09-2750 (La.4/23/10), 32 So.3d 808.

DISCUSSION

At the outset, we find no error in the district court’s conclusion that the twelve claimants at issue proved they sustained damages as a result of defendant’s negligence. It is well-settled law that factual determinations are subject to review for manifest error. Ferrell v. Fireman’s Fund Insurance Co., 94-1252, pp. 3-4 (La.2/20/95), 650 So.2d 742, 745. In such a review, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse, even though convinced that had it been sitting as the trier of fact it would have weighed the evidence differently. Id. at 882-883. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous. Id. at 883. Further, where the findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the findings of fact. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Indeed, where the factfinder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous. Id. at 845.

In the instant case, the district court heard testimony from the claimants regarding their exposure to the naphtha odor and resulting symptoms, and concluded |sthese claimants suffered damage as a result of defendant’s negligence. We find no manifest error in this conclusion.

Similarly, we cannot say the district court erred in finding those claimants who were located in closer proximity to the release site suffered more exposure than those claimants who resided further away. The district court placed great weight on the testimony of Dr. Sullivan, who was accepted as an expert in the fields of medical toxicology and environmental health. Dr. Sullivan explained it was reasonable to assume someone closer to the source would receive a higher concentration than someone further away. Therefore, we do not find the district court’s findings in this regard to be clearly wrong.

We now turn to the issue which prompted our grant of certiorari in this case — namely, the quantum of general damages awarded by the district court. It is well-settled that vast discretion is accorded to the trier of fact in fixing general damage awards. La. Civ.Code art. 2324.1; Duncan v. Kansas City Southern Railway Co., 00-0066 (La.10/30/00), 773 So.2d 670. This vast discretion is such that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Thus, the role of the appellate court in reviewing general damage awards is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Youn, 623 So.2d at 1260.

The initial inquiry, in reviewing an award of general damages, is whether the trier of fact abused its discretion in assessing the amount of damages. Cone v. National Emergency Serv. Inc., 99-0934 (La.10/29/99), 747 So.2d 1085, 1089; Reck v. Stevens, 373 So.2d 498 (La.1979). Only after a determination that the trier of fact has abused its “much discretion” is a resort to prior awards appropriate, and then only |r,for the purpose of determining the highest or lowest point which is reasonably within that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976).

The record reveals claimants suffered relatively minor symptoms from their exposure, such as watering eyes, nose or throat irritation, coughing, and headaches. None of the claimants sought or required medical attention as a result of the exposure. They were not required to evacuate from the area as a result of the chemical release, nor did they miss any work or school. Dr. Sullivan testified the symptoms experienced by the claimants would resolve themselves in a day, and could be treated with over-the-counter medications such as Visine.

Considering the minimal nature of the claimant’s injuries, we conclude the district court’s awards of $1,500 to $3,500 represent a clear abuse of discretion. In reaching this conclusion, we recognize, as we did in Youn, 623 So.2d at 1261, that “[reasonable persons frequently disagree about the measure of general damages in a particular case.” Nonetheless, Youn also made it clear the general damage award must “bear a reasonable relationship to the elements of the proved damages.” Id. In the case at bar, the damages proven, such as eye, nose, and throat irritations, are not unlike the symptoms suffered by persons afflicted with common seasonal allergies. There is simply no reasonable relationship between the claimants’ injuries, which might be characterized as mere annoyances, and the damage awards ranging from $1,500 to $3,500.

Having found the awards represent an abuse of discretion, we now turn to a review of prior awards for the purpose of lowering the awards to the highest point which is reasonably within that discretion. Coco, 341 So.2d at 335. A review of the jurisprudence indicates the general damage awards made in cases involving similar Jjfacts typically ranged between $100 and $500. For example, in Adams v. CSX Railroads, 01-114 (La.App. 4 Cir. 4/20/05), 902 So.2d 413, the plaintiffs were exposed to fumes from a leaking railroad tank car. The Adams court awarded $500 in physical pain and suffering to a plaintiff who suffered eye and nose irritation and experienced ongoing stomach cramps. Another plaintiff who suffered eye, nose, and throat irritation for two days, but did not seek medical attention, was awarded $200 for physical pain and suffering. The Adams court awarded $100 for physical pain to a third plaintiff who experienced watery eyes and a sore throat, which he treated with Visine and Sucrets. Id. at p. 6-8; 902 So.2d at 417.

Also instructive is Adams v. Marathon Oil Co., 96-693 (La.App. 5 Cir. 1/15/97), 688 So.2d 75. In that case, the plaintiffs in a class action alleged they were injured when the defendant negligently released ethyl mercaptan. The evidence indicated the plaintiffs suffered some mild physical discomfort such as membrane irritation, fatigue, and nausea. For these injuries, the court awarded damages ranging from $0 to $500.

Applying this range of damages together with the proximity approach adopted by the district court, we conclude the highest damage awards supported by the record are as follows:

| ^Claimants who were in the plant at the time of the release (Martin Granier, Lionel Harry, Anne Ockmond, Franklin McGinnis, and James McCormick), $500 each.
Claimant who was working near the plant on the night of the release (Lisa McKnight), $250.
Claimants residing in Montz, Louisiana (June Gross and Dorothy Richard), $150 each.
Claimants residing in Killona, Louisiana (Ella Mae Darrensbourg, Colleen Lathers, Tone Silas, and Cynthia Johnson-Gordon), $100 each.

DECREE

For the reasons assigned, the judgment of the court of appeal is amended to reflect the following damage awards: Ella Mae Darrensbourg ($100), Colleen Lathers ($100), Tone Silas ($100), Cynthia Johnson-Gordon ($100), June Gross ($150), Dorothy Richard ($150), Lisa McKnight ($250), Martin Granier ($500), Lionel Harry ($500), Anne Ockmond ($500), James McCormick ($500), and Franklin McGinnis ($500). In all other respects, the judgment, as amended, is affirmed.

AMENDED AND AFFIRMED AS AMENDED.

JOHNSON and KNOLL, JJ., dissent and assign reasons.

VICTORY, J., concurs and assigns reasons.

JOHNSON, Justice,

dissents.

| , Finding no manifest error, I would affirm the decision of the court of appeal.

VICTORY, J.,

concurring.

|,I agree with the majority’s reduction of the amount of damages awarded by the trial court. However, I disagree with the trial court’s method of awarding damages globally based on the location of each plaintiff to the release site. Damages should have been based upon testimony as to an individual’s actual damages, not on expert testimony that it was “reasonable” to assume someone closer to the source would suffer more damage than someone farther away. However, because defendant states in brief that it “does not dispute the trial court’s methodology for fixing the claimants’ damages based on their proximity to the Carbide plant,” I concur in the majority opinion.

KNOLL, Justice,

dissenting.

| ,The majority granted certiorari in this case to determine whether the. district court abused its discretion in awarding damages in a class action suit resulting from a chemical leak. For the following reasons, I find this “simple and routine” case does not meet the stringent considerations presented in La. Sup.Ct. R. X and, therefore, does not warrant the exercise of this Court’s supervisory jurisdiction.

This Court has broad discretion whether to grant a writ of certiorari. See La. Sup.Ct. R. X, § 1(a); Jonathan C. Augustine, Louisiana Appellate Practice and Procedure: An Overview for Legal Practitioners 53 La. B.J. 214, 217 (Oet./Nov. 2005). In the exercise of this discretion, we are guided by La. Sup.Ct. R. X, which sets forth the “character of the reasons” this Court considers in deciding whether to grant a writ and hear a particular case. Deborah M. Henson, Keys to Successful Appellate Practice: Helping the Litigator Write and Argue in Louisiana Courts of Appeal and the Louisiana Supreme Comt 57 La. B.J. 310, 312 (Feb./March 2010). This rule requires the case or issue of which a litigant seeks review by this Court present one or more of its enumerated considerations. La. Sup.Ct. R. X, § 1(a).

Under its provisions, the civil cases this Court may consider on writ are those where conflicting decisions by the various courts of appeal are involved, a significant _[¿ssue of law is unresolved, a controlling precedent should be examined and perhaps overturned, a court of appeal has erroneously interpreted a law or the constitution so as to “cause material injustice or significantly affect the public interest,” or where a court of appeal has so far departed from proper judicial proceedings as to call for the court’s supervisory authority. La. Sup.Ct. R. X., § l(a)(l)-(5). “Rule X thus excludes ‘simple and routine’ cases from those in which writs of certiorari are granted by the supreme court.” Kevin R. Tully & E. Phelps Gay, The Louisiana Supreme Court Defended: A Rebuttal of the Louisiana Supreme Court in Question: An Empirical and Statistical Study of the Effects of Campaign Money on the Judicial Function, 69 La. L.Rev. 281, 290-91 (Winter 2009). In so doing, its considerations affirm the function of this Court as a judicial policy-making body, and not as an errors-eorrecting court.

Nevertheless, the majority in this case seeks to review the district court’s de min-imis damage awards ranging from $1,500 to $3,500. Yet, as our Rule X considerations demonstrate, it is not the function of this Court to micro-manage a district court’s exercise of its “great” and “vast” discretion in awarding damages to personal injury claimants. See Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993)(“the discretion vested in the trier of fact is ‘great,’ and even vast, so that an appellate court should rarely disturb an award of general damages”); see also Menard v. Lafayette Ins. Co., 09-1869, pp. 13-14 (La.3/16/10), 31 So.3d 996, 1006-07 (“In accordance with well-established law, much discretion is left to the judge ... in its assessment of quantum.... As a determination of fact, a judge’s ... assessment of quantum, or the appropriate amount of damages, is one entitled to great deference on review.”); Duncan v. Kansas City Southern Railway Co., 00-0066, p. 13 (La.10/30/00), 773 So.2d 670, 682 (“Vast discretion is accorded the trier of fact in fixing Isgeneral damage awards.... This vast discretion is such that an appellate court should rarely disturb an award of general damages.”). Therefore, I respectfully dissent from the majority’s improper exercise of this Court’s supervisory jurisdiction merely to reduce the de minimis general damages awards from a few thousand to a few hundred dollars.

       Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.

      . The parties initially selected thirty claimants. After trial, one claimant was dismissed for failure to comply with discovery, seven were dismissed for failure to appear at trial, and eight were found not to have been within the class boundaries during the relevant times.

      . The trial court actually awarded damages to fourteen of the claimants remaining out of the original thirty claimants selected for trial. Subsequently, the court of appeal vacated the awards to two claimants, Debra Brown and Rogest Gross.

      . As discussed in footnote 2, supra, the court of appeal unanimously vacated the awards to Debra Brown and Rogest Gross, finding no credible evidence to support their inclusion within the class. Although plaintiffs argue in their brief that the court of appeal erred in reversing the award to Debra Brown, they did not file an application seeking relief in this court. Accordingly, the portion of the court of appeal’s judgment vacating the awards to these two claimants is now final.

      . Plaintiffs call our attention to In re New Orleans Train Car Leakage Fire Litigation, 00-1919 (La.App. 4 Cir. 4/20/05), 903 So.2d 9, writ denied, 05-1297 (La.2/3/06), 922 So.2d 1171, in which the individual plaintiffs were awarded from $5,000 to $15,000 for physical damages, and from $2,000 to $5,000 for mental anguish. However, a review of the Train Car Leakage opinion reveals that case is factually distinguishable. The chemical release in Train Car Leakage took place over a period of three days and involved a potential carcinogen. The plaintiffs residing in the area of the release were forced to evacuate, and were displaced from their homes. Some of the plaintiffs sought medical treatment, and others experienced mental and physical symptoms which lasted as long as several months. These facts stand in clear contrast to the instant case, where the chemical release was limited in duration. Unlike Train Car Leakage, none of the claimants in the case at bar were displaced from their homes. They did not seek medical treatment and only experienced relatively minor effects as a result of the release. Under these circumstances, we do not believe Train Car Leakage provides any useful guidance in determining the appropriate measure of damages.

      . The court awarded $0 to three claimants who failed to appear at trial.


source: Caselaw Access Project

author:
WEIMER, Justice.
     JOHNSON, Justice, KNOLL, Justice,

license: Public Domain

text:
    Monna MATHIEU v. NEW ORLEANS PUBLIC LIBRARY.
    No. 2009-C-2746.
    Supreme Court of Louisiana.
    Oct. 19, 2010.
    Rehearing Denied Dec. 10, 2010.

      Victor L. Papai, II, Penya Marzula Moses-Fields, Mary Katherine Taylor, Nan-nette V. Joivette-Brown, Lambert <& Lambert, Nolan P. Lambert, New Orleans, Martiny & Associates, LLC, Franz L. Zibi-lich, New Orleans, for Applicant.
    Brett John Prendergast, New Orleans, for Respondent.
   WEIMER, Justice.

| ¶ This matter is before the court for a determination of whether the court of appeal erred in reducing the disciplinary sanction of termination of an employee which had been imposed by the New Orleans Public Library (NOPL) and upheld by the New Orleans Civil Service Commission (CSC). For reasons that follow, we hold the sanction of termination based on the facts and circumstances of this case was not arbitrary and capricious or characterized by an abuse of discretion, and we reverse the ruling of the court of appeal.

FACTS AND PROCEDURAL BACKGROUND

Monna Mathieu was a classified civil service employee with permanent status who had been employed by the City of New Orleans (City) in various capacities with several agencies since August 1983. On April 27, 2003, she was appointed to serve 12in a position classified as “Management Services Supervisor” for the NOPL. In that capacity she was the business manager for the NOPL, whose direct supervisor was the NOPL’s City Librarian/Director. Mathieu worked under three different City Librarians/Directors prior to that position being vacant from November 2006 until September 2007, when Donna Schremser was appointed to fill the position.

During November 2007, the NOPL issued a disciplinary letter notifying Mathieu of the final disciplinary action terminating her for the following reasons: 1) untimely processing and payment of bills and invoices beginning in January 2007, 2) failure to provide financial reports to the Library Committee since April 2006, and 3) failure to obtain approval prior to submitting the NOPL’s 2008 budget to the New Orleans City Council (City Council). The notification also indicated Mathieu was suspended for a period of five days for failure to deposit checks paid to the NOPL from January 2007 to July 2007 and was suspended for a period of three days for violation of the sick-leave policy. The letter contained notice of the right to appeal within 30 calendar days of the date of the letter.

Mathieu perfected an appeal to the CSC challenging the sanctions. In February 2008, a hearing was conducted over a three-day period, during which the CSC hearing examiner heard testimony from Mathieu, as well as a number of individuals employed by NOPL or associated with the Library Board and the Library Committee.

After the hearing, the CSC hearing examiner found the appointing authority failed to provide any evidence that the charge related to the untimely payment of bills and invoices was caused by the untimely processing of bills and invoices by Mathieu |sor her subordinates; based on the lack of evidence, the hearing examiner recommended that charge be dismissed.

However, the hearing examiner recommended that the decision of the NOPL to terminate Mathieu’s employment be upheld on grounds related to (1) the financial reports and (2) the budget, finding those charges were sufficiently established. Based on these findings, the CSC rendered a decision in conformity with the hearing examiner’s report, thus, refusing to disturb the termination of Mathieu’s employment, the five-day suspension, or the three-day suspension.

Mathieu appealed that decision to the court of appeal, challenging the grounds for termination of employment and the grounds for the two suspensions. Mathieu v. New Orleans Public Library, 08-1503, p. 3 (La.App. 4 Cir. 8/5/09), 25 So.3d 858, 861.

The appellate court determined the ultimate question to be decided was whether Mathieu’s actions and/or inactions impaired the efficiency of the NOPL. Mathieu, 08-1503 at 4, 25 So.3d at 862. The court of appeal found the CSC did not err in finding Mathieu impaired the efficient operation of the NOPL. However, the appellate court found the penalty imposed by the NOPL was “too harsh, arbitrary, and capricious.” Mathieu, 08-1503 at 9, 25 So.3d at 864. The court vacated the penalty of termination and imposed a 90-day suspension without pay, ordering reinstatement thereafter. Mathieu, 08-1503 at 9-10, 25 So.3d at 864.

|4The NOPL sought a rehearing, which the court of appeal granted for the limited purpose of clarifying an issue raised regarding Mathieu’s unauthorized submission of the NOPL’s 2008 budget to the City Council. On rehearing, the court found Mathieu’s act of submitting the NOPL’s budget directly to the City Council impaired the efficient operation of the NOPL. However, the court found the termination of Mathieu’s employment for this infraction and others cited by the NOPL was “too harsh, arbitrary, and capricious.” On rehearing, the court maintained the decree of suspension for 90 days without pay which had been rendered previously. Mathieu, 08-1503 at 2, 25 So.3d at 865.

NOPL’s application for writ of review to this court was granted. Mathieu v. New Orleans Public Library, 00-2746 (La.4/23/10), 32 So.3d 809. The only issue before this court is whether the termination of Mathieu’s employment was arbitrary and capricious or characterized by an abuse of discretion.

DISCUSSION

Civil service provisions in the state constitution and the rules of the civil service commission are designed to protect career public employees from political discrimination by eliminating the “spoils” system. See La. Const, art. X, § 1, et seq.; Bannister v. Department of Streets, 95-0404, p. 4 (La.1/16/96), 666 So.2d 641, 645. Civil service laws and rules establish a system under which “non-policy forming” public employees are selected on the basis of merit and can be discharged only for insubordination, incompetency, or improper conduct. Bannister, 95-0404 at 4-5, 666 So.2d at 645.

| ^Equally as important as protection of the employees is the appointing authority’s duty to undertake disciplinary action against an employee for legal cause that impairs the efficiency of the public service. Just as great an injustice may arise from suffering the continuance of incompetent or insubordinate classified civil service employees in them positions as from wrongfully terminating the permanently classified civil service employee. Both concerns are fundamental to the purpose of the civil service merit system. Bannister, 95-0404 at 7, 666 So.2d at 646.

Employees with permanent status may be disciplined only for cause expressed in writing. La. Const, art. X, § 8(A). “Cause” for dismissal of such a person includes conduct prejudicial to the public service involved or detrimental to its efficient operation. Bannister, 95-0404 at 8, 666 So.2d at 647; Walters v. Department of Police of the City of New Orleans, 454 So.2d 106, 113 (La.1984).

Appellate courts reviewing civil service disciplinary cases are presented with a multifaceted review function. Bannister, 95-0404 at 8, 666 So.2d at 647; Walters, 454 So.2d at 113. Initially, deference should be given to the factual conclusions of the civil service commission. A reviewing court should apply the clearly wrong or manifest error rule prescribed generally for appellate review. Bannister, 95-0404 at 8, 666 So.2d at 647; Walters, 454 So.2d at 114. Then, the court must evaluate the commission’s imposition of a particular disciplinary action to determine if it is both based on legal cause and is commensurate with the infraction; the court should not modify the commission’s order unless it is arbitrary, capricious, or characterized by abuse of discretion. Id. “Arbitrary or capricious” means the absence of a rational basis for the action taken, Bannister, 95-0404 at 8, 666 So.2d at 647; “abuse of discretion” generally results from a conclusion reached capriciously or in an arbitrary | (¡manner, Burst v. Board of Commissioners, Port of New Orleans, 93-2069, p. 5 (La.App. 1 Cir. 10/7/94), 646 So.2d 955, 958.

We acknowledge that the accusations against Mathieu for failure to provide financial reports to the Library Committee and failure to obtain approval of the Library Board of the proposed 2008 budget prior to submission to the City Council are potentially serious accusations, either of which could result in the sanction of termination if based on evidence of record and balanced against any mitigating circumstances.

Regarding the financial reports, the pertinent portion of the November 15, 2007 notice of termination issued to Mathieu by the City Librarian/Director stated:

Unwillingness to Perform Assigned Duties. You were asked by Lance Query[] and Board Chair Irvin May-field to provide consistent [financial] reports to the Library Committee. You have failed to provide any financial reports since April 2006 which violated the Cooperative Endeavor Agreement between the City and the Library Committee. You were further instructed to give the completion of the data the highest priority. To[]date, we have not received the requested data and the continuous delay has prevented the Library Committee from a timely submission of the tax returns. I find this to be an infraction that warrants termination.

Testimony at the hearing established the Library Committee is a non-profit corporation originally formed to receive money to fund a campaign for a millage increase for the library. The entity’s status as a Sec. 501(C)(3) non-profit organization pursuant to Title 26 of the Internal Revenue Code enables library |7patrons to make tax-deductible donations which flow to the library. Additionally, the Library Committee owns and maintains copy machines in the branch libraries. According to the Library Committee president, Ruth McCusker, the funds raised from the use of the copy machines at times have amounted to as much as or more than $40,000 per year; these monies are allocated to the upkeep and replacement of the machines. The Library Committee also provides other financial support for the NOPL.

McCusker testified that as a Sec. 501(C)(3) non-profit association, the Library Committee was required to file annual federal tax returns. Part of the information needed for those returns was the amount of income derived from the copy machines. She explained that the money was collected at the various branches, counted, sealed, and sent to the main branch; at the main branch the money was counted again, accounted for, and deposited in the bank by the library staff. As part of these money-management functions, the Library Committee was sent monthly reports, which were in turn reported to the board of the Library Committee. All of these tasks were ultimately the responsibility of Mathieu in her capacity as business manager for the NOPL.

This working agreement between the Library Committee and the main branch library staff, which included the NOPL Business Office, had been in place for years, according to McCusker. She specified that the NOPL Business Office, eventually headed by Mathieu, handled all of the Library Committee’s money in the same way that the Library Board’s accounts were handled, except the funds were kept as a separate item. The Business Office would prepare a monthly statement that informed the Library Committee what monies had been taken in and what was in the bank. Originally, the person in the Business Office who performed that function was John | sDuffle; eventually, Mathieu took Duffle’s place. Mathieu confirmed that she kept the Library Committee’s checkbook in her desk along with two other library checkbooks. Mathieu would verify the invoices for which she prepared the checks, record the checks, and transmit the unsigned checks for dual signatures of Library Committee members. The Library Committee’s separate bank account provided the basis for the monthly financial reports.

According to testimony at the hearing, the City and the Library Committee formalized the working agreement by confect-ing a written Cooperative Endeavor Agreement whereby the NOPL would provide “administrative, bookkeeping, and other support services for Committee operations according to justified need or usefulness in the Libraryt’s] interest approved by the City Librarian.” The agreement was signed by the mayor on behalf of the City and covered the period from July 1, 2005, to June 30, 2006. Mathieu testified she was “instrumental” in getting this agreement confected. Although the attachment to the agreement provided the agreement could be extended beyond June 30, 2006, at the option of the City, provided funds were allocated by the City Council, there is no evidence of record indicating the City exercised the option to extend the agreement beyond the one year covered by the written agreement or that the City Council allocated funds for that purpose. Testimony elicited at the hearing indicated there were no other written agreements signed following the initial one in 2005. Thus, after the term of the written Cooperative Endeavor Agreement expired on June 30, 2006, the NOPL and the Library Committee reverted to the working agreement that was in place prior to July 1, 2005.

At the hearing conducted on February 28, 2008, McCusker testified that subsequent to April of 2006, when she received about six months of reports at one 13time, the Library Committee received no financial reports from Mathieu, despite McCusker having requested same through the City Librarian/Director or through the Library Board. Therefore, the Library Committee was unable to file its tax return for the year 2006. In her testimony, Mathieu confirmed that she had failed to provide the Library Committee with monthly reports for the 2006 calendar year. Reconciling the statements by McCusker and Mathieu, it would not be manifestly erroneous for the CSC to conclude that the six monthly reports received in April of 2006 were for 2005. Thus, Mathieu failed to provide monthly reports for January through June of 2006, a period of time in which the Cooperative Endeavor Agreement was in effect. As a reason for her departure from the routine reporting she had provided since 2003, Mathieu referenced to the reduction in staff following Hurricane Katrina.

The court of appeal held the CSC did not err in finding Mathieu’s actions and/or inactions related to the financial reports impaired the efficient operation of the NOPL, a finding Mathieu has not challenged. Following that determination, the court of appeal was required to make a determination regarding the penalty. As previously stated, the reviewing court engages in a two-step process evaluating the CSC’s determination as to whether the disciplinary action is both based on legal cause and, if so, whether the discipline is commensurate with the infraction. The court should not modify the CSC’s order unless it is arbitrary, capricious, or characterized by abuse of discretion. See Bannister, 95-0404 at 8, 666 So.2d at 647; Walters, 454 So.2d at 114.

| inThe appellate court found the penalty imposed was “too harsh, arbitrary, and capricious.” The court considered the fact that Mathieu had worked for the City for 25 years with no prior disciplinary record. In addition, the court noted the operation of the NOPL was less than stellar during the period of the alleged charges, with a shortage of personnel and no City Librarian/Director in place. The court of appeal vacated the penalty of termination and imposed a 90-day suspension without pay, ordering reinstatement thereafter.

Although the finding that Mathieu’s behavior impaired the efficiency of public service has not been challenged by Math-ieu, who did not apply for a writ of review to this court on that issue, the evaluation or lack thereof by the court of appeal of the extent of the impairment and the severity of its effect has been raised by the NOPL’s assertions that the court of appeal erred in reducing the penalty of termination.

We agree with the NOPL that the court of appeal was erroneous in finding the penalty of termination was arbitrary and capricious and, thus, the court of appeal erred in reducing the penalty. Mathieu asserts to this court that it would have been “payroll fraud for ... Mathieu to work on Library time for a non-City corporation which did not have a valid cooperative endeavor agreement with the City or the Library.”

To consider this issue, we turn, as we must, to the wording of pertinent provisions in the Louisiana Constitution of 1974. Article 7, Section 14 is entitled “Donation, Loan, or Pledge of Public Credit” and begins with a general prohibition, as follows:

| n(A) Prohibited Uses. Except as otherwise provided by this constitution, the funds, credit, property, or things of value of the state or of any political subdivision shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private. Except as otherwise provided in this Section, neither the state nor a political subdivision shall subsei'ibe to or purchase the stock of a corporation or association or for any private enterprise.

This provision is followed with specifications of “Authorized Uses” in paragraph (B) and an exception from the prohibition for “Cooperative Endeavors” in paragraph (C). The latter states:

Cooperative Endeavors. For a public purpose, the state and its political subdivisions or political corporations may engage in cooperative endeavors with each other, with the United States or its agencies, or with any public or private association, corporation, or individual.

In the instant case, the evidence clearly shows that the NOPL had performed administrative/bookkeeping services for the Library Committee prior to Mathieu’s employment as Management Services Supervisor. The testimony at the hearing was that after the millage election, the Library Board decided to keep the Library Committee in place as a separate entity to handle functions such as tax-exempt donations; it then became the duty of the Management Services Supervisor, formerly John Duffle, to perform the “administrative, bookkeeping, and other support services” later specified in the written cooperative endeavor agreement confected for the 2005-2006 period. The record is clear that the Library Committee existed to support the public libraries and provided invaluable financial support to the libraries, thus justifying the cooperative endeavor agreement.

Mathieu’s argument that her providing financial reports to the Library Committee after the expiration of the written cooperative endeavor agreement could be payroll fraud is clearly untenable. The fallacy in Mathieu’s argument that the expiration of the written Cooperative Endeavor Agreement “excused” her from |12providing the written reports is that she actually failed to perform the services required of her during the months that the written agreement was in place. Considering Mathieu’s testimony that she did not provide any written reports for 2006, it is apparent that the failure to provide monthly reports for January through June of 2006 was a breach of the NOPL’s contractual obligations to the Library Committee during the term of the Cooperative Endeavor Agreement. Although Mathieu now persists in making the payroll-fraud argument, the fact is she did not perform the required tasks during a portion of the term of the Cooperative Endeavor Agreement. Thus, the expiration of the written contract could not mitigate or negate Mathieu’s failure to perform her employment requirements pursuant to the Cooperative Endeavor Agreement that she was “instrumental” in confecting. The record contains no evidence she advised anyone that it would be inappropriate to prepare the financial reports following the expiration of the written Cooperative Endeavor Agreement. Based on the record, this argument seems an after-the-fact excuse for failing to perform her job responsibilities.

Similarly, Mathieu’s challenge to the authority of volunteer Lance Query to request that she provide the overdue financial reports to the Library Committee and consider the task a priority was made after the fact and is without merit. The vacancy in the position of City Librarian/Director existed from November 2006 to September 2007. Query did not make his email request that Mathieu prioritize the preparation of the financial reports until May of 2007, more than a year after Mathieu unilaterally decided not to make the monthly reports and, thus, breached the City’s agreement to provide “administrative, bookkeeping, and other support services” as stated in the Cooperative Endeavor Agreement. Query’s volunteer status did not provide grounds for Mathieu to ignore her obligation to the Library Committee. Clearly, because she |iswas not the Director, Mathieu was obligated to report to someone who was above her in the organization. Query testified that he dealt with Mathieu during the months he worked with the NOPL on a voluntary basis, particularly concerning the belated payment of invoices. There was no testimony that Mathieu challenged Query’s authority pri- or to her termination.

In light of these considerations, this court finds that the CSC was not arbitrary and capricious in its approval of the appointing authority’s imposition of the sanction of termination of employment for failure to provide the financial reports to the Library Committee; the CSC had a rational basis for approving the termination. In its decision rendered October 6, 2008, the CSC specified that the appointing authority established Mathieu “failed to complete a specific task that was given to her as a priority.... [T]he task was important, and her failure to perform the task undermined the efficient operation of the library.” The CSC noted that the Library Committee clearly served a very important function within the NOPL; the CSC concluded Mathieu’s unilateral decision to ignore what her superiors considered an important task demonstrated that she was “ill-suited for her position; especially with the added responsibilities that resulted from the [reduction in forces] caused by Hurricane Katrina.”

The CSC noted in its decision that none of Mathieu’s “excuses” for failing to make the reports “mitigated her misconduct.” According to Mathieu’s testimony those “excuses” were two-fold: the lack of adequate personnel in the Business Office and the health problems she incurred during the time period involved. Although Math-ieu testified she complained about the lack of staff after Hurricane Katrina, Mathieu introduced no evidence to corroborate the fact that she took steps, as a business manager, to seek remedies for the short staff. Likewise, she entered no [ umedical records to support her claim of medical problems. Consistent with Mathieu’s lack of defense to the charges against her is her decision to acquiesce in the appellate court’s findings that the four infractions were established by the appointing authority: 1) failure to provide financial reports; 2) failure to get approval of the 2008 budget; 3) failure to account for and deposit funds; and 4) failure to follow sick-leave procedure. These infractions are aggravating factors that outweigh the mitigating circumstances noted by the court of appeal. These infractions provide a rational basis for concluding the imposition of the sanction of termination was not arbitrary and capricious.

Thus, we conclude the mitigating factors are insufficient to justify departure from the penalty imposed when contrasted with the gravity of the “insubordination, incompetency, and improper conduct” exhibited by Mathieu in her position of Management Services Supervisor for NOPL from January 2006 through August 2007. See Ban nister, 95-0404 at 4-5, 666 So.2d at 645. Consequently, the sanction of termination imposed by the appointing authority and upheld by the CSC was not arbitrary and capricious and was not characterized by an abuse of discretion.

Having decided to uphold the sanction of termination as a result of the actions related to the financial statements, it is unnecessary for this court to address the issues related to the 2008 budget. Consequently, we pretermit any discussion concerning | ^issues related to the budget. Upon finding there is one ground for termination, the consideration of a second ground becomes superfluous.

CONCLUSION

Each case must be decided on its own facts with substantial deference afforded to the appointing authority. Reviewing courts should not second guess the appointing authority’s decision, but only intervene when decisions are arbitrary and capricious or characterized by an abuse of discretion. See Bannister, 95-0404 at 8, 666 So.2d at 647.

The decision of the court of appeal imposing a 90-day suspension is reversed and the sanction of termination upheld by the New Orleans Civil Service Commission is reinstated.

REVERSED IN PART; TERMINATION REINSTATED.

JOHNSON and KNOLL, JJ., dissent and assigns reasons.

JOHNSON, Justice,

dissents and assigns reasons.

|,I respectfully dissent. I doubt there is any place in the world where the name “Hurricane Katrina” does not conjure up terrible images of death and destruction. It is ludicrous then, to suggest that the NOPL system continued to function in a normal fashion post-Katrina. To the contrary, in addition to the destruction and damage to numerous library buildings, Ms. Mathieu was working in an extremely short-staffed office, and operating without the direction of an immediate supervisor, as the City Librarian/Director position was vacant from November 2006 until September 2007. Hurricane Katrina had a devastating impact on the City of New Orleans, resulting in chaos and dysfunction in the operation of City government, departments and services. There is no question that, during the relevant time frame, the NOPL was still in a state of disarray and not fully functioning. I find these conditions contributed to Ms. Mathieu’s actions which led to the disciplinary action.

The majority finds justification for termination based solely on Ms. Mathieu’s failure to provide financial reports to the Library Committee, but fails to fully consider mitigating circumstances in determining whether termination is justified. Ms. Mathieu did not dispute that she was asked to prepare the requested financial |2reports, nor that Mr. Query asked her to prioritize the report. However, she stated that everything arising during this time period was a priority. In addition to working on preparing the NOPL budget, Ms. Mathieu testified she was also faced with new responsibilities following Hurricane Katrina, such as work orders from FEMA, processing or administration of grants, and increased volume of invoices to process due to increased spending by the chief librarians. Thus, Ms. Mathieu was dealing with an increased work load with a decreased staff, all while working within a NOPL system that was dysfunctional.

In my view, Ms. Mathieu did an adequate job in prioritizing her normal work responsibilities, and her new responsibilities resulting from the aftermath of Hurricane Katrina. At the time she was terminated, Ms. Mathieu had been a city employee for almost 25 years, and a library employee for over four years. In her long tenure as a city employee, she had an unblemished work record, and had never been subject to discipline prior to the incidents involved in this matter. Given the chaos and destruction at every level of city government, I find it impossible to properly consider this case without fully considering these mitigating factors when determining whether termination was excessive.

Our courts have taken note of mitigating circumstances when determining whether an appointing authority’s action is arbitrary and capricious. The majority concludes that the mitigating factors are insufficient to justify departure from termination given Ms. Mathieu’s “insubordinate, incompetency and improper conduct.” However, I must point out other cases where the courts have considered the effects of Hurricane Katrina in employment cases. Even first responders, who necessarily have a heightened responsibility in emergency conditions, were able to point to effects of the Hurricane on their job performance. To suggest that Ms. Mathieu, as an office worker, is not entitled to the same consideration, is untenable.

lain Bankston v. Department of Fire, 2009-1016 (La.App. 4 Cir. 11/18/09); 26 So.3d 815, the court of appeal found that a firefighter’s failure to report for duty after receiving notification of an emergency activation due to Hurricane Gustav constituted a real and substantial risk to the fire department. Notwithstanding, the court reduced a 90-day suspension imposed by the Department, and upheld by the Commission, to a 30-day suspension. The court reasoned that the CSC’s decision was arbitrary and excessive when considering the presence of mitigating circumstances (employee’s constant contact with his superiors and state police to determine when the roads would re-open).

In Fascio v. Department of Police, 2008-1127 (La.App. 4 Cir. 4/1/09); 9 So.3d 1029, the Fourth Circuit agreed with the CSC that Officer Fascio should have been disciplined for leaving his post and neglecting his duties during Hurricane Katrina. However, the court reduced a 30-day suspension imposed by the Department, and upheld by the CSC, to a 12-day suspension. The court reasoned that a mechanical punishment scale failed to take into account mitigating circumstances and thus the CSC upholding of the discipline was arbitrary and excessive.

In Hines v. Department of Police, 2006-1218 (La.App. 4 Cir. 12/19/07); 974 So.2d 87, the court of appeal agreed with the CSC that Lieutenant Hines neglected his duties by leaving the city of New Orleans after Hurricane Katrina. Nevertheless, the court reduced a termination imposed by the Department, and upheld by the CSC, to a demotion and a 30-day suspension. The court reasoned that termination was excessive considering the employee’s 23 years of employment with the Department, his unblemished service record and his relatively quick return to the city following his departure.

In each of those cases, the court of appeal determined that the employee’s actions impaired the efficiency of the public service and that disciplinary action was |4warranted. However, the court of appeal went on to consider whether the disciplinary actions were commensurate with the infraction or whether they were arbitrary and capricious.

Ms. Mathieu’s failure to provide financial reports to the NOPL must be examined in the context in which her inaction occurred. Given Ms. Mathieu’s long employment history with the City of New Orleans, the absence of a prior disciplinary record, the overall dysfunction of NOPL following Hurricane Katrina, particularly the short staff and absence of a Director, I find that termination was an excessive penalty, and not commensurate with the infraction. Contrary to the majority, I find the sanction of termination to be arbitrary and capricious, and I find the court of appeal correctly reduced Ms. Mathieu’s penalty to 90 days suspension.

KNOLL, Justice,

dissenting.

Iiln reversing the Court of Appeal’s judgment, the majority concludes the sanction of termination based on the facts and circumstances of this case was not arbitrary and capricious or characterized by an abuse of discretion. However, in reaching this conclusion, the majority opinion fails to engage in an analysis of whether the penalty was arbitrary and capricious. Rather the majority focuses upon the misconduct, even though the only issue before this Court is whether there was a rational basis for the disciplinary action taken. See Bannister v. Dept. of Streets, 95-0404, p. 8 (La.1/16/96), 666 So.2d 641, 647.

In my view, a proper analysis of the issue would balance the accusations of misconduct against the substantial mitigating circumstances, namely Mrs. Mathieu’s unblemished twenty-five-year employment record with the City of New Orleans and most importantly, the overall operation of the NOPL, including the lack of 12appropriate and necessary staffing, during the post-Hurricane Katrina time period involved, ie., January through June of 2006.

It is important in this case to recall that on the morning of Monday, August 29, 2005, Hurricane Katrina made landfall as a Category 3 storm in southeast Louisiana, triggering the catastrophic failure of some of New Orleans’s levee systems, which flooded close to eighty percent of the city. With flood waters lingering for weeks and the annihilation of coastal cities and parishes, the damages wrought by this storm totaled over eighty-one billion dollars.

Few would dispute the repercussions of this storm, which was one of the deadliest hurricanes in U.S. history claiming 1,836 lives, are still felt in the city today, but were most prevalent in the year following its landfall. Simply put, the city was in turmoil and has not fully recover even with the passage of five years. I take judicial notice of the wide-spread closure of the city’s court systems, schools, medical institutions, government offices, and businesses, as well as the mandated, city and parish-wide evacuation of its citizens.

Significantly, there is no record evidence to indicate the NOPL was somehow miraculously unaffected by the costliest natural disaster in our nation’s history. Consequently, unlike the majority opinion, which examines the misconduct in a vacuum detached from reality, I find a proper examination of Mrs. Mathieu’s misconduct and the punishment imposed must take into serious consideration this catastrophe and its crippling effects on the city.

Therefore, in my view, the Court of Appeal correctly found the penalty imposed herein is too harsh, arbitrary, and capricious, and termination is not commensurate with the infraction, given the overwhelming mitigating circumstances Ispreventing the return to “business as usual.” For these reasons, I respectfully dissent.

      . Retired Judge Philip Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine Kimball.

      . The NOPL is a governmental institution under the auspices of the City of New Orleans and is subject to pertinent laws, such as constitutional, statutory, and regulatory provisions pertaining to civil service. See Robbins v. New Orleans Public Library, 208 So.2d 25, 31 (La.App. 4 Cir.1968).

      . The' Library Board is a Board of the City of New Orleans charged with operating the City’s public library system. The Library Committee is a private, non-profit organization which supports the city libraries and operates, in part, from revenue generated by copy machines in the library branches.

      . In her argument to the court of appeal challenging the termination for failure to provide the Library Committee with the financial reports, Mathieu specified the following errors: 1) the CSC manifestly erred in concluding that Lance Query was her superior or supervisor, 2) the CSC erred in concluding the president of the Library Board had the authority to give her instructions, 3) the CSC erred in failing to recognize the illegality of requiring her to perform work for a private corporation (the Library Committee) as a part of her city employment. The appellate court pretermitted discussion of those assignments of error because they were not relevant to whether Mathieu’s conduct impaired the efficiency of public service for the NOPL. Mathieu, 08-1503 at 4, 25 So.3d at 862.

      . Mathieu did not apply for supervisory writ of review; thus, the court of appeal’s determination that her actions and/or inactions impaired the efficiency of the NOPL is final and not before this court. Likewise, she did not seek review of the penalty imposed by the court of appeal.

      . When a vacancy occurred in the position of City Librarian/Director in November 2006, Lance Query was approached by the previous president of the Library Board for assistance in finding someone to serve as interim director of the NOPL. The person Query recommended declined the offer. However, Query generously volunteered on a pro bono basis to work with die library 10 to 12 hours a week while he maintained full-time employment elsewhere. Query made the request to Math-ieu for the 2006 reports during May 2007, after being contacted by the president of the Library Committee.

      . This designation, which results in various tax exemptions, is reserved, in part, for "[c]orporations ... organized and operated exclusively for ... literary, or educational purposes.”

      . Although she claimed to have prepared the 2006 reports some time in 2007 and left them on her desk after her termination, there is nothing in the record to support this testimony; apparently the CSC rejected this testimony.

      . When asked on direct examination whether she had given the Library Committee reports for 2006, Mathieu answered, "No.” Even if the time frame is limited to the period following April 2006, the financial reports were not submitted for two months while the Cooperative Endeavor Agreement was in effect.

      . Indeed, the evidence indicates a series of City Librarians/Directors served for short periods of time; at the time of the repeated requests in 2007 by the Library Committee for Mathieu to provide the financial reports, there was no City Librarian/Director.

      . We note there was substantial testimony concerning the charge of failure to deposit checks for six months during 2007. Math-ieu's own testimony is descriptive of a seriously dysfunctional financial office in which currency and checks were stacked in a safe until that was completely filled; thereafter, more currency and checks were stored by her in a file cabinet that could be locked. All the while, these funds were left uncounted and unaccounted for by Mathieu.

        We observe that the sanction of a five-day suspension for this improper management of the NOPL’s financial affairs might be considered rather lenient.

      . While we may agree with the court of appeal that the decision to terminate may be “harsh,” that is not the test.

      . See Fascio v. Dept. of Police, 08-1127, pp. 4-5 (La.App. 4 Cir. 4/1/09), 9 So.3d 1029, 1032 (reducing thirty-day suspension to twelve days, despite finding officer had neglected duties; noting application of mechanical penalty schedule arbitrarily failed to account for mitigating circumstances); Hines v. Dept. of Police, 06-1218, pp. 12-13 (La.App. 4 Cir. 12/19/07), 974 So.2d 87, 94 (reducing termination to demotion and 30-day suspension, despite finding officer neglected duties, citing employee's twenty-three years of employment, unblemished service record, and relatively quick return after Hurricane Katrina); Deshotel v. Dept. of Police, 07-0363, pp. 5-6 (La.App. 4 Cir. 10/24/07), 970 So.2d 1106, 1109 (affirming reduction of a forty-five day suspension for an officer who left after Hurricane Katrina to obtain medicine for elderly mother); see contra, Shepack v. New Orleans Police Dept., 00-1345, p. 4 (La.App. 4 Cir. 5/16/01), 791 So.2d 733, 736 (holding "[wjhere there is a sufficient basis for the imposition of the disciplinary action, the Civil Service Commission may not substitute its judgment of what the proper penalty should be for the penalty imposed by the appointing authority based on what the Civil Service Commission perceives to be mitigating factors”).

      . Notably, the study of recent Fourth Circuit jurisprudence reveals a trend wherein the court has taken into consideration mitigating factors in its review of employee termination cases post-Hurricane Katrina, whereas prior to the storm, the court did not consider mitigation in such reviews. See supra note 1.


author: PER CURIAM. KNOLL, J.,

text:
    Audrey THOMPSON, et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    No. 2010-C-1244.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   PER CURIAM.

|, Finding the court of appeal erred in granting the .exception of lack of subject matter jurisdiction filed by State Farm Mutual Automobile Insurance Company (State Farm), we grant this writ to reverse that ruling and remand the case to the court of appeal for briefing and opinion regarding the calculation of damages that may be awarded to the plaintiffs, individually, within the jurisdictional limits of the Alexandria City Court.

Audrey Thompson filed the instant suit in Alexandria City Court, seeking damages for injuries stemming from an automobile accident that occurred when the vehicle driven by Chad Harp rear-ended the vehicle driven by Susan Young, triggering a chain of events wherein the Young vehicle rear-ended the Thompson vehicle, which, in turn, rear-ended the vehicle driven by Eli Novakovich, which vehicle, in turn, rear-ended the vehicle driven by Alex Tou-lomelis. As a result, Audrey named Chad Harp, the driver allegedly at fault, and his insurer, State Farm, as defendants. Moreover, given the number of potential personal injury claimants and |2her belief the $300,000 per accident coverage limit of State Farm’s policy was “inadequate to cover the amount of damages suffered,” Audrey also named as a defendant her uninsured/underinsured motorist (UM) insurance carrier, Government Employees Insurance Company (GEICO). Audrey’s husband, Charles Thompson, joined the suit, seeking damages for loss of consortium on his own behalf and damages for medical expenses and “loss of the wife’s income” on behalf of the marital community.

In their petitions, the Thompsons explicitly limited their damages to the “jurisdictional maximum” of the Alexandria City Court:

The plaintiffs, AUDREY THOMPSON and CHARLES THOMPSON, maintain a cause of action for which the defendants are jointly and solidarity liable for damages in an amount less than the jurisdictional maximum of this court, said sums to be determined by this court, plus legal interest thereon from date of judicial demand, until paid in full, plus all costs of court, for the reasons set forth below.

Plaintiffs further prayed:

That after all legal delays and due proceedings had, there be judgment in favor of plaintiffs, AUDREY THOMPSON and CHARLES THOMPSON, and against the defendants, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, CHAD HARPE [sic], and GOVERNMENT EMPLOYEES INSURANCE COMPANY, a/k/a GEICO, for all damages claimed herein, individually, jointly and in solido, in a sum reasonable within the premises herein, yet within the jurisdictional limits of this court, together with legal interest thereon from date of judicial demand, until paid, and for all costs of these proceedings....

This prayer was reiterated in plaintiffs’ “First Amended and Supplemental Petition.”

In conformity with its jurisdictional limit, the Alexandria City Court entered judgment, awarding Audrey $50,000 in general damages and awarding Charles, on |shis own behalf, $20,000 for loss of consortium, and $30,000 for past and future medical expenses on behalf of the couple’s community.

After appeal, but prior to submission to a panel, State Farm filed an exception of lack of subject matter jurisdiction, which the court of appeal granted, finding the pleadings demonstrated the amount in dispute exceeded $50,000:

Both the petition and the amended petition include GEICO as a defendant in its capacity as a UM insurer. In their amended petition, the plaintiffs alleged that, in addition to the State Farm policy previously identified in the petition, that coverage from the accident could also exist under the State Farm policy alleged to cover Mr. Harpe’s [sic] personal vehicle![] Under both petitions the plaintiffs alleged that these policies were believed to be inadequate to cover the plaintiffs’ damages, requiring GEI-CO’s presence as the UM provider. Further, subsequent pleadings such as a motion for summary judgment filed by GEICO, which was denied by the trial court, and the motion for partial summary judgment filed by the plaintiffs, which was granted by the trial court, revealed that the State Farm policy limits ($100,000 per person and $800,000 per accident) well exceeded the city court’s jurisdictional limits. Considering the pleadings’ allegations as to damages exceeding these policy limits, the allegation and subsequent determination that Mr. Harpe [sic] was one hundred percent at fault, and the plaintiffs’ pursuit of the UM proceeds, it was obvious that the amount in dispute exceeded the $50,000 jurisdictional limit. At that time, the trial court was required to transfer the action to a court of competent jurisdiction pursuant to La.Code Civ.P. art. 4841(C).

Thompson v. State Farm Mut. Auto. Ins. Co., 09-1869, pp. 5-6 (La.App. 3 Cir. 4/7/10), 34 So.3d 1053. Accordingly, the court of appeal vacated the entirety of the lower court’s judgment as a nullity and remanded this matter to the Alexandria City |4Court for the sole purpose of transferring the action to a court of competent jurisdiction. Id. However, after careful study, we find the court of appeal erred in its reading of plaintiffs’ petitions and our Code of Civil Procedure provisions governing the subject matter jurisdiction of city courts, as discussed in detail below.

In accord with the provisions of La.Code Civ. Proc. art. 4841, the subject matter jurisdiction of city courts is limited by the nature of the proceedings and by the amount in dispute, which amount is determined by the amount demanded. See La.Code Civ. Proc. art. 4841(A) & (B). Likewise, La.Code Civ. Proc. art. 4 provides:

When the jurisdiction of a court over the subject matter of an action depends upon the amount in dispute, or value of the right asserted, it shall be determined by the amount demanded, including damages pursuant to Civil Code Articles 2315.3 and 2315.4, or value asserted in good faith by the plaintiff, but the amount in dispute does not include interest, court costs, attorney fees, or penalties, whether provided by agreement or by law. (Emphasis added).

Moreover, under the provisions of La.Code Civ. Proc. art. 5, “[w]hen a plaintiff reduces his claim on a single cause of action to bring it within the jurisdiction of a court and judgment is rendered thereon, he remits the portion of his claim for which he did not pray for judgment, and is precluded from demanding it judicially.” The amount demanded by the plaintiff is the test for the subject matter jurisdiction of a city court. See La.Code Civ. Proc. arts. 4 and 4841.

As evident in the portions of the petitions cited above, both plaintiffs limited them demands to “an amount less than the jurisdictional maximum of .... yet within the jurisdictional limits of [the Alexandria city] court.” Moreover, as previously discussed, plaintiffs only brought their actions against GEICO because they believed the $300,000 coverage limit of State Farm’s policy would be inadequate to cover the damages they suffered, given the number of potential personal injury claimants, whose claims could effectively diminish the underlying liability coverage available |5to them. Significantly, the pleadings demonstrate the plaintiffs never sought to recover damages beyond the jurisdictional limits of the city court, but rather merely sought to ensure recovery by proceeding first against the tortfeasor’s insurer, State Farm, and then against their UM insurer only to the extent their damages exceeded the underlying coverage afforded by and available to them under the tortfeasor’s State Farm policy. Therefore, contrary to the appellate court’s conclusion, subject matter jurisdiction always properly rested in the Alexandria City Court.

However, the issue of the calculation of damages as to each plaintiff, individually, has not been addressed by the court of appeal. More particularly, the court of appeal must consider whether the city court erred in awarding Charles $30,000 for community-incurred medical expenses after awarding Audrey the jurisdictional limit. Therefore, the case is remanded for this purpose.

DECREE

Accordingly, we find the court of appeal erred in granting the exception of lack of subject matter jurisdiction, and reverse that ruling. We remand the case to the court of appeal for briefing and opinion to consider whether the award to Charles Thompson of $30,000 on his claim on behalf of the community for medical expenses was within the jurisdictional limits for the Alexandria City Court, in all other respects, the judgment of the trial court is reinstated.

WRIT GRANTED; COURT OF APPEAL JUDGMENT REVERSED and CASE REMANDED.

KNOLL, J., concurs in part, dissents and assigns reasons.

KNOLL, J.,

concurring in part, dissenting in part.

hi concur with the majority in finding the Court of Appeal erred in granting the exception of lack of subject matter jurisdiction, but I dissent from the remand on issues not properly raised on appeal by any party.

      . This jurisdictional limit is set forth in La. Code Civ. Proc. arts. 4843(H) and 1732(1). La.Code Civ. Proc. art. 4843(H) provides: "In the City Court of Alexandria and the City Court of Pineville, the civil jurisdiction is concurrent with the district court in cases where the amount in dispute, or the value of the property involved, does not exceed the amount provided in Article 1732(1) for purposes of demanding a jury trial.” La.Code Civ. Proc. art. 1732(1) provides: "A trial by jury shall not be available in: (1) A suit where the amount of no individual petitioner’s cause of action exceeds fifty thousand dollars exclusive of interest and costs.”

      . Prior to trial in this matter, the Alexandria City Court denied GEICO's motion for summary judgment, in which GEICO sought to be dismissed given State Farm’s policy provided coverage well exceeding the jurisdictional limits of the city court, and allowed plaintiffs to proceed against GEICO only if State Farm became insolvent and to the extent their damages exceeded the underlying coverage afforded by Harp’s policy. The trial court also entered partial summary judgment in favor of plaintiffs, (1) assigning 100% fault to Harp, (2) establishing State Farm provided coverage of $100,000 per person and $300,000 per accident, and (3) finding GEICO afforded UM benefits.

      . Specifically, the trial court awarded $8,129.52 in past medical expenses and $21,870.48 in future medicals. The court also ordered GEICO be reimbursed for the $5,000 it paid under the medical pay portion of its policy from the community's award. Additionally, in its reasons for judgment, the trial court explained that, although Audrey’s injuries justified a general damage award in excess of $100,000 and the community would incur medical expenses totaling in excess of $117,000, it limited its awards in accordance with its jurisdictional limits. The court also found "the jurisdictional limit of the court falls within the liability limits of the policy issues by State Farm and accordingly, the claim against GEICO is dismissed.” This dismissal, however, was not included in the judgment. Also in its reasons, the trial court awarded Charles "$654.91 ... for the past lost wages of the community,” but this award was not reflected in the judgment.

      . This claim against State Farm was dismissed by the trial court on plaintiffs’ motion. All rights against Harp and State Farm in its capacity as the liability insurer of the vehicle involved in the accident were reserved.

      . In fleshing out this issue, we direct the parties and the court of appeal to consider whether an award to Charles on his claim for medical expenses on behalf of the community also inures to the benefit of Audrey who has already been awarded her jurisdictional limit. Due consideration should also be given to the question of whether Audrey’s cause of action as a result of the car accident can be divided. See also Russell v. Shelter Mutual Ins. Co., 09-1451 (La.App. 3 Cir. 5/5/10), 38 So.3d 561, writs denied, 10-1374 (La.9/24/10), 45 So.3d 1075.

      . According to the appellate opinion, State Farm and Harp appealed, raising the following assignments of error:
      [1] The city court exceeded its jurisdictional limit by splitting the cause of action of Audrey Thompson for general and special damages when awarding her its full jurisdictional limit for her general damage claim and then awarding her husband the balance of another jurisdictional limit of her special damage claims for lost wages and medical expenses.
      [2] The city court erred in awarding Charles Thompson $20,000 for loss of consortium.
      GEICO alsq appealed, asserting the city court "erred in failing to dismiss the plaintiffs’ claims against GEICO with prejudice after trial on the merits.”


author: PER CURIAM.

text:
    Robert ROGER, et al. v. ANPAC LOUISIANA INSURANCE COMPANY.
    No. 2010-CC-1099.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   PER CURIAM.

Iiln these consolidated matters, this Court was asked to determine the proper venue for suits concerning the allocation of settlement and/or insurance funds involving Road Home program properties between the property owners, their attorneys, and the State.

Louisiana Revised Statutes 13:5104 is the mandatory general venue statute which applies in suits against State agencies, unless other more specific venue provisions apply in suits against particular agencies. Colvin v. Louisiana Patient’s Compensation Fund Oversight Board, 06-1104, 11 (La.1/17/07), 947 So.2d 15, 22. The statute reads in pertinent part:

A. All suits filed against the state of Louisiana or any state agency or against an officer or employee of the state or state agency for conduct arising out of the discharge of his official duties or within the course and scope of his employment shall be instituted before the district court of the judicial district in which the state capítol is located or in the district ] 2court having jurisdiction in the parish in which the cause of action arises.

La.Rev.Stat. § 13:5104. The place where the operative facts occurred which support the plaintiffs entitlement to recovery is where the cause of action arises. Colvin, 06-1104 at 13, 947 So.2d at 24.

In Colvin, we determined that the “operative facts which support the plaintiffs entitlement to recovery” all occurred in East Baton Rouge Parish, those operative facts being the state agency’s administrative decision not to settle the plaintiffs’ claims. Colvin, 06-1104 at 14, 947 So.2d at 24. We also recognized that many courts had held that where a state agency’s ministerial or administrative actions are called into question, East Baton Rouge Parish is the only appropriate forum. Colvin, 06-1104 at 14, 947 So.2d at 24.

More recently, in a suit against the Louisiana State University Board of Supervisors, we reiterated that when a plaintiff challenges a ministerial or administrative action of a state agency and the conduct complained of occurred in Baton Rouge where the decisions are made, East Baton Rouge Parish is the only proper venue. LeBlanc v. Thomas, 2008-2869, 9-10 (La.10/20/09), 23 So.3d 241, 246.

In the instant cases, the causes of action did not arise from hurricane damage to their homes, but from determinations made later by Road Home personnel in East Baton Rouge Parish, that the plaintiffs must now reimburse a portion of their Road Home grants. As we did in Colvin and LeBlanc, we find that where the plaintiffs challenge the ministerial decision of a state agency, the parish of proper venue is East Baton Rouge. Accordingly, we reverse the decisions of the courts below and sustain the exceptions of improper venue.

REVERSED, EXCEPTIONS OF IMPROPER VENUE SUSTAINED.

KNOLL, J., dissents and would deny the writ.

       Chief Justice Kimball not participating in this opinion.


text:
    Jake IMPASTATO, et al. v. STATE of Louisiana, DIVISION OF ADMINISTRATION, On Supervisory Writ to the Civil District Court, Parish of Orleans, Robert Roger, et al. v. Anpac Louisiana Insurance Company on Supervisory Writ to the Thirty-Fourth Judicial District Court, Parish of St. Bernard.
    No. 2010-CC-1998.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   PER CURIAM.

hln these consolidated matters, this Court was asked to determine the proper venue for suits concerning the allocation of settlement and/or insurance funds involving Road Home program properties between the property owners, them attorneys, and the State.

Louisiana Revised Statutes 13:5104 is the mandatory general venue statute which applies in suits against State agencies, unless other more specific venue provisions apply in suits against particular agencies. Colvin v. Louisiana Patient’s Compensation Fund Oversight Board, 06-1104, 11 (La.1/17/07), 947 So.2d 15, 22. The statute reads in pertinent part:

A. All suits filed against the state of Louisiana or any state agency or against an officer or employee of the state or state agency for conduct arising out of the discharge of his official duties or within the course and scope of his employment shall be instituted before the district court of the judicial district in which the state capítol is located or in the district |2court having jurisdiction in the parish in which the cause of action arises.

La.Rev.Stat. § 13:5104. The place where the operative facts occurred which support the plaintiffs entitlement to recovery is where the cause of action arises. Colvin, 06-1104 at 13, 947 So.2d at 24.

In Colvin, we determined that the “operative facts which support the plaintiffs entitlement to recovery” all occurred in East Baton Rouge Parish, those operative facts being the state agency’s administrative decision not to settle the plaintiffs’ claims. Colvin, 06-1104 at 14, 947 So.2d at 24. We also recognized that many courts had held that where a state agency’s ministerial or administrative actions are called into question, East Baton Rouge Parish is the only appropriate forum. Colvin, 06-1104 at 14, 947 So.2d at 24.

More recently, in a suit against the Louisiana State University Board of Supervisors, we reiterated that when a plaintiff challenges a ministerial or administrative action of a state agency and the conduct complained of occurred in Baton Rouge where the decisions are made, East Baton Rouge Parish is the only proper venue. LeBlanc v. Thomas, 2008-2869, 9-10 (La.10/20/09), 23 So.3d 241, 246.

In the instant cases, the causes of action did not arise from hurricane damage to their homes, but from determinations made later by Road Home personnel in East Baton Rouge Parish, that the plaintiffs must now reimburse a portion of their Road Home grants. As we did in Colvin and LeBlanc, we find that where the plaintiffs challenge the ministerial decision of a state agency, the parish of proper venue is East Baton Rouge. Accordingly, we reverse the decisions of the courts below and sustain the exceptions of improper venue.

REVERSED, EXCEPTIONS OF IMPROPER VENUE SUSTAINED.

KNOLL, J., dissents and would deny.

       Chief Justice Kimball not participating in this opinion.


author: KNOLL, J

text:
    In re Judge Jacques A. SANBORN, 34th Judicial District Court, Parish of St. Bernard.
    No. 2010-O-2051.
    Supreme Court of Louisiana.
    Nov. 30, 2010.

      Office of Special Counsel, Henry Nathan Belamy, Special Counsel, for Applicant.
    Russell Bennett Ramsey, Jr., New Orleans, for Respondent.
   KNOLL, J

I;Judge Jacques Sanborn, an elected judge of the 34th Judicial District Court for the Parish of St. Bernard, is accused of violating La. Supreme Court Rule XXXIX by failing to timely file his judicial financial disclosure statement for the calendar year 2008. We are called upon to determine the appropriate sanction, if any. As this is the first judicial disciplinary proceeding brought under Rule XXXIX, this case presents several issues of first impression for this Court.

For the reasons set forth below, we find Judge Sanborn violated Rule XXXIX by not timely filing a financial disclosure statement. Judge Sanborn’s first written response was not filed until 24 days after the final deadline set by the Judicial Administrator’s Office (“JAO”). Under Rule XXXIX(4)(F)(7)(a), the penalty for late filing is set at one hundred dollars a day. Judge Sanborn is hereby ordered to pay $2,400 in penalties to the State of Louisiana, Judicial Branch. We do not find his violation was “willful and knowing” under Rule XXXIX(4)(F)(8), and we decline to assess costs.

| .FACTS

On March 26, 2008, this Court issued an Order promulgating Supreme Court Rule XXXIX. For the first time, Louisiana judges and justices of the peace must file yearly detailed financial disclosure statements which become part of the public record. Section 2 of Rule XXXIX, which applies to elected judges, went into effect in 2008. The first set of disclosure statements came due on May 15, 2009.

On March 31, 2009, the JAO sent a letter advising all judges in the state of the upcoming deadline. The letter advised if any judge had obtained an extension to file his or her 2008 federal tax return, the financial disclosure statement could be filed within thirty days after filing the return.

Judge Sanborn timely notified the JAO of his extension of time to file his federal tax return, which was granted until October 15, 2009. Accordingly, his 2008 financial disclosure statement was due by no later than November 15, 2009.

On October 27, 2009, Kerry Lentini, a JAO staff attorney, sent an e-mail to Judge Sanborn reminding him of the approaching deadline. Although Judge San-born did not respond to the email, he testified that he called Ms. Lentini regarding another extension of the time to file. However, he could not remember when he made the call, and there is no written record of any communication between his office and the JAO. Ms. Lentini testified she did not speak to Judge Sanborn or anyone at his office.

On November 23, 2009, Ms. Lentini sent Judge Sanborn a second e-mail informing him the 2008 Statement was past due and should be “filed with our office immediately.” Again, Judge Sanborn did not respond.

On December 9, 2009, the JAO sent Judge Sanborn a notice of delinquency by certified mail. The notice required him to file either the 2008 financial disclosure statement or a written answer contesting your failure to file” by no later than January 5, 2010. The notice of delinquency warned that failure to respond by the deadline |a“shall result in the imposition of penalties as provided in Subsection F of Rule XXXIX.”

Judge Sanborn did not meet the January 5, 2010 deadline. Instead, on January 27, 2010, he sent a letter stating he had not yet filed his 2008 federal tax return, but expected to do so “very soon,” and would file the disclosure statement simultaneously with his tax return. By this time Judge Sanborn’s tax return was long overdue, as he had never requested an additional extension past the October 15, 2009 deadline. He testified he relied on the advice of his accountant, who informed him that, because he was owed a refund, the IRS would not mind if he filed his return late.

Judge Sanborn finally completed his 2008 financial disclosure statement on February 11, 2010, and the statement was received by the JAO on February 17, 2010.

Procedural History

The JAO referred Judge Sanborn’s matter to the Judiciary Commission, which ordered the matter set for a hearing before Judge Jules D. Edwards, III, acting as hearing officer.

Judge Edwards issued findings of fact and conclusions of law finding Judge San-born had not timely filed his financial disclosure statement, and his violation was both willful and knowing.

The matter was referred to this Court, and a hearing was held on October 20, 2010. Somewhat incredibly, Judge San-born filed an untimely opposition brief on October 18, 2010, only two days before oral argument. In the interests of equity, we will consider the arguments raised in this tardy brief. Given the gravamen of the allegations against him, it is extremely troubling that Judge Sanborn is yet again unable, or unwilling, to meet a court-ordered filing deadline,

Discussion

_liA- Burden of Persuasion

As an initial matter, the parties disagree as to the appropriate burden of persuasion. Respondent argues any violation must be proven by clear and convincing evidence. The Judiciary Commission claims it is “unclear” whether the clear and convincing standard applies to alleged violations of Rule XXXIX, or whether the proper standard is preponderance of the evidence. Neither party cites to any legal authority supporting its argument.

We have often held claims of judicial misconduct must be proven by clear and convincing evidence. See, e.g. In re Morvant, 09-747 (La.6/26/09), 15 So.3d 74, 79, citing In re Hughes, 03-3408 (La.4/22/04), 874 So.2d 746, 760. However, none of the relevant jurisprudence involves cases arising out of Rule XXXIX, and Rule XXXIX itself is silent on the appropriate burden of persuasion. We find this is not the proper case to resolve this issue, as the relevant facts surrounding this matter are largely undisputed. Under either standard, the evidence establishes Judge Sanborn did not timely file his financial disclosure statement.

B. Violation of Rule XXXIX

Supreme Court Rule XXXIX(2)(B) states a judge may file the financial disclosure statement “within thirty days after the individual files his or her federal tax return for the year on which he or she is reporting, taking into account any extensions filed by the individual, provided that the individual notifies the Office of the Judicial Administrator ... prior to the deadline provided in Subsection (A) of this Section.” It is undisputed that Judge San-born received a six-month extension of time to file his federal income tax return and timely notified the JAO of this extension. His financial disclosure statement was therefore due on November 15, 2009.

Judge Sanborn was adequately notified of this deadline. Members of the _[fijudiciary have a duty to keep informed of this Court’s Rules and the deadlines for filing included therein. Moreover, the JAO sent two emails warning of upcoming deadlines, both of which he ignored. He also received, via certified mail, a “notice of delinquency” as required by Rule XXXIX(4)(A), which required a response by no later than January 5, 2010. Judge Sanborn did not respond until January 27, 2010, and the JAO did not receive the letter until January 29, 2010. There is simply no excuse for this continual tardiness.

Judge Sanborn relies on the portion of Rule XXXIX stating the disclosure statement is due “within thirty days after the individual files his or her federal tax return ... taking into account any extensions.” Judge Sanborn points out that, at the time the JAO sent his “notice of delinquency” in December 2009, he had still not filed his federal tax return for 2008. Judge Sanborn’s federal tax return was due on October 15, 2009. He claims his accountant advised him it was unnecessary to file on time, as he was due a refund. Respondent points to no provision of the U.S. Tax Code permitting a taxpayer to file an untimely income tax return provided he is due a refund. Judge Sanborn effectively argues his violation of federal law also permits him to violate this Court’s Rules. We do not agree.

We also note the JAO generously offered Judge Sanborn several additional chances to comply even after the original deadline had expired. He consistently failed to respond to these communications. Moreover, he points to no mitigating factors, such as a serious illness or other circumstance which rendered him unable to timely file his statement. In short, this is a clear cut and unjustified violation of Rule | fiXXXIX, and the imposition of sanctions is appropriate.

C. Whether The Violation Was Willful and Knowing

Having found Judge Sanborn in violation of Rule XXXIX, we must decide whether his violation was “willful and knowing” under Rule XXXIX(4)(F)(8). This subsection states:

In the event the Court determines that a person has willfully and knowingly failed to file a statement, willfully and knowingly failed to timely file a statement, willfully and knowingly omitted information from a statement, or willfully and knowingly provided inaccurate information in a statement, the Court shall forward its findings to the district attorney in the parish which is the domicile of the person who filed the report for appropriate action.

Although Judge Sanborn’s conduct is undeniably negligent and frankly inexcusable for an elected judge of this State, we nevertheless decline to find he willfully and knowingly violated Rule XXXIX. We are aware this is a newly adopted Rule and there is little guidance regarding its implementation. There is no evidence Judge Sanborn acted in bad faith, or purposefully chose not to file his disclosure statement in order to obtain some personal or professional gain. This is a case of mere neglect, not willful and knowing disobedience of the rule. We have recognized some leniency is appropriate where the judge’s “violation of the judicial rules was undeniably unknowing and not the product of any dishonest motive.” In re Morvant, 2009-747 (La.6/26/09), 15 So.3d 74, 80.

We hasten to add that our holding does not excuse Judge Sanborn’s actions. It is the judge’s responsibility to timely file those disclosures required by law and to promptly respond to communications from the JAO. Judge Sanborn is a veteran member of the judiciary, and as such is held to a high standard. He is often called upon to enforce filing deadlines on the litigants before his court, and must likewise show respect for the deadlines this Court has imposed on all judges of this State, | ywithout exception.

D. Penalties and Costs

Finally, we must decide the appropriate penalty. Rule XXXIX(4)(F)(7)(a) provides if “the Court determines that a violation has occurred, the Court shall assess civil penalties in the following amounts: (a) One hundred dollars per day for statements required by Section 2 of this Rule.” The Judiciary Commission urges us to calculate this fine beginning with the January 5, 2010 deadline set forth in the JAO “notice of delinquency.” Because the JAO did not receive Judge San-born’s response until 24 days after January 5, 2010, the appropriate penalty would be $2,400. Respondent does not dispute this calculation, and we therefore impose sanctions of $2,400.

The Judiciary Commission also requests an award of costs in the amount of $828.00. Rule XXXIX does not provide for a cost award in proceedings brought under that Rule. The Judiciary Commission cites Supreme Court Rule XXIII, § 22, which permits recovery of costs in other types of judicial discipline proceedings:

In cases where the commission recommends the discipline of a judge, the commission shall review counsel’s cost statement and shall recommend to the court that all or any portion of the costs incurred by the office of special counsel, as well as costs the commission has incurred, be taxed against the judge. The commission’s recommendation shall be included in the record filed in this court in the form of an itemized cost statement. The court, in its discretion, may tax all or any portion of the costs recommended by the commission.

However, no provision of Rule XXXIX adopts the section of Rule XXIII cited by the Judiciary Commission. It is the “well-settled jurisprudence of this State that the only costs taxable against a litigant are those provided for by positive law.” Succession of Franz, 242 La. 875, 139 So.2d 216, 218 (1962); State ex rel, Dept. Of Highways v. Salemi, 249 La. 1078, 193 So.2d 252, 254 (1966). As Rule XXXIX does not provide for an 1 ^assessment of costs, we decline to award them.

CONCLUSION

Accordingly, it is ordered that Judge Jacques A. Sanborn, of the 34th Judicial District Court for the Parish of St. Bernard, is found in violation of La. Supreme Court Rule XXXIX for failure to file his financial disclosure statement for the calendar year 2008. He is ordered to pay civil penalties in the amount of $2,400 no later than thirty days from finality of this judgment to the State of Louisiana, Judicial Branch.

       Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.

      . 26 U.S.C. § 6081 allows taxpayers to request "a reasonable extension of time for filing any return.... Except in the case of taxpayers who are abroad, no such extension shall be for more than 6 months." (Emphasis added). This statute suggests Judge Sanborn would not have been eligible for an additional extension of time to file past October 15, 2009, even if he had applied for one.