text:
    Albert A. BECKER v. JEFFERSON PARISH DEPARTMENT OF PARKS & RECREATION.
    No. 09-CA-662.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 12, 2010.

      Bruce J. Betzer, Jr., Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
    Clement P. Donelon, Attorney at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| aThis is a civil service disciplinary case. Albert Becker, a former employee of the Jefferson Parish Department of Parks and Recreation appeals a judgment of the Jefferson Parish Personnel Board that upheld the termination of his employment and dismissed his appeal. Mr. Becker specifies four errors to the proceedings below. First, Mr. Becker contends that the appointing authority did not prove that he committed misconduct by a preponderance of the evidence. Second, Mr. Becker contends that the Personnel Board erroneously determined that he impaired the efficient operation of the Department of Parks and Recreation. Third, Mr. Becker contends that the Personnel Board erred by failing to find that his punishment was not commensurate with the offense he allegedly committed. Finally, Mr. Becker contends that the Personnel Board applied the wrong legal standard of review in affirming the decision of the Personnel Board. For the reasons that follow, we affirm the ruling of the Personnel Board.

PROCEDURAL HISTORY

| .jMr. Becker received a Letter of Termination from his supervisor C.J. Gibson on August 22, 2008. The Letter of Termination accused Mr. Becker of falling asleep in his parish vehicle while waiting for a fellow employee on April 7, 2008. The Letter of Termination noted that Mr. Becker had previously been suspended for sleeping his truck in 2003. The Letter of Termination concluded that Mr. Becker’s actions “more than justify [his] termination.” The Letter of Termination additionally noted that Mr. Becker had participated in pre-disciplinary hearings on July 29, 2008 and August 4, 2008.

After receiving the Letter of Termination, Becker filed an Application for Review contesting his termination with the Personnel Board. The Personnel Board appointed a hearing officer to conduct the hearings on the appeal. On January 27, 2009 and February 5, 2009, the hearing officer took testimony in this matter. The hearing officer thereafter dismissed Mr. Becker’s Application for Review on April 29, 2009. The hearing officer’s findings of fact indicate the following:

12. On the morning of April 7, 2008, Becker remained parked for about 68 minutes in [a] parking lot at 5747 Plauche Court blocking approximately five (5) parking spaces without the knowledge, permission, or consent of the owner of the parking lot.
18. While he was parked in [a] parking lot without the permission or consent of the owner blocking five (5) parking spaces, Becker fell asleep in the JPDPR vehicle number 2545,
22. Becker did fall asleep and was visible to the public as asleep for some period of time.
Mr. Becker filed this timely appeal.

FACTS

On April 7, 2008, Mr. Becker’s supervisor, Sam Wiley, ordered Mr. Becker to bring fellow Department of Parks and Recreation employee Maverick Charles to 14Elmwood Industrial Medicine for a visit with Dr. David Reiss. Mr. Wiley additionally ordered Mr. Becker to wait for Mr. Charles. Elmwood Industrial Medicine is located at 5800 Plauche Court, Harahan, Louisiana. Mr. Becker drove Mr. Charles to Dr. Reiss’s office in his regularly assigned parish truck. Mr. Charles and Mr. Becker arrived at Elmwood Industrial Medicine at approximately 8:30 AM.

Mr. Becker parked his parish truck across the street from Elmwood Industrial Medicine at 5745 Plauche Court, Harahan, Louisiana. Mr. Becker parked the truck in several parking spots assigned to Aspen Pharmacy (“Aspen”). Aspen and Elm-wood Industrial Medicine are located across the street from each other. At the Personnel Board hearing, Mr. Becker testified that his palish truck was too wide to fit into a single parking spot in Elmwood’s lot. Thus, Mr. Becker parked the truck perpendicular to how an individual would have normally parked a vehicle. The truck blocked approximately three of Aspen’s parking spots. Mr. Charles entered Elmwood Industrial Medicine at approximately 8:43 AM. At the time, there were no other vehicles parked in the Aspen parking lot.

Penney Keller, an Aspen cashier, arrived shortly thereafter. Ms. Keller noticed that a Department of Parks and Recreation truck was parked in several parking spots assigned to Aspen. She informed Omar Hamide, her supervisor and Aspen’s owner, that the truck was parked in Aspen’s lot. Mr. Hamide arrived at work minutes later. At the Personnel Board hearing, Mr. Hamide testified that he had an ongoing problem with people using his parking lot to attend Elmwood Medical Center. Mr. Hamide also testified that several large trucks had damaged his parking lot. Mr. Hamide began taking pictures of the Department of Parks and Recreation truck. Mr. Hamide also took several pictures of a man inside the truck. The pictures show a man with sunglasses on. The man’s leg is propped against the |sside of the truck and his mouth is open. The man is wearing a tag that says “Albert Becker.”

Mr. Hamide testified that he thought that the man inside the truck was asleep or deceased. According to Mr. Hamide, both the driver’s side and the passenger side windows of the truck were up. Mr. Hamide testified that he attempted to awaken Becker by “banging” on the driver’s side window intermittently for ten minutes. However, Mr. Becker did not respond. Mr. Hamide thereafter called the telephone number on Becker’s truck to complain about Becker sleeping on the job. Mr. Hamide was able to get in touch with Kevin O’Quinn, who arrived approximately 30 minutes after Mr. Hamide attempted to wake the man in the truck. Mr. Hamide testified that he was angry that a parish employee was sleeping on the job.

At the Personnel Board hearing, Mr. Becker testified that he had parked in the Aspen parking lot many times. Mr. Becker did not dispute that he was the person depicted in the photos taken by Mr. Ham-ide. However, Mr. Becker was adamant that he was not sleeping and that he was merely reclining on the seat of his parish truck. Mr. Becker contended that he propped up his leg and foot to improve his circulation to his leg on account of his diabetes.

Mr. Becker testified that after Mr. Charles entered Elmwood Industrial Medicine, he spoke to his wife on the telephone from 8:50 until 9:00. In support of this contention, Mr. Becker introduced a certified Alltel phone bill into evidence. The Alltel bill indicates that someone called Mr. Becker from his home number at 8:51 and spoke to Mr. Becker for seven minutes.

Mr. Becker contended that he thereafter read the newspaper until approximately 9:25 or 9:30, at which time he spoke to his brother on the telephone. The Alltel bill indicates that Mr. Becker received a call at 9:34, which lasted for |fione minute. Mr. Becker testified that he saw Mr. Hamide taking pictures of his vehicle and the parking lot. According to Mr. Becker, he thought Mr. Hamide “was some type of architect and he was doing structural pictures of the parking lot.” Mr. Becker testified that Mr. Hamide did not approach him or his vehicle nor did he bang or tap on his window.

Mr. Charles exited Elmwood Industrial Medicine at approximately 9:35 AM and rejoined Mr. Becker in the parish truck. At approximately 9:38 AM, Mr. Charles and Mr. Becker observed Kevin O’Quinn and Scott Muhoberac approaching their vehicle. Mr. Muhoberac is an area coordinator of the Parish Department of Parks and Recreation. Mr. O’Quinn was Mr. Becker’s supervisor. Mr. Muhoberac asked Mr. Becker why he was parked on the Aspen lot. Mr. Becker responded that he had just finished taking Mr. Charles to Elmwood Industrial Medicine. Mr. Mu-hoberac then asked Mr. Becker why he was still parked in the Aspen lot if Mr. Charles’s appointment was over. Mr. Becker responded “it’s break time.” Mr. Muhoberac then ordered Mr. Becker to leave the Aspen lot.

Mr. Becker acknowledged that he had been disciplined for sleeping during working hours on September 5, 2003. Mr. Becker allegedly fell asleep in his parish vehicle on August 25, 2003. At the time, the Department of Parks and Recreation did not have a written rule expressly forbidding employees from sleeping in their parish-assigned vehicles during working hours. However, Mr. O’Quinn had told Mr. Becker on several occasions that sleeping in his parish truck was impermissible. Mr. Becker did not appeal the 2003 suspension.

On cross-examination, Mr. Becker admitted that he stated at his pre-disciplin-aiy hearing that he “may have fallen asleep.” However, Mr. Becker maintained that he did not fall asleep on April 7, 2008. Counsel for the parish 17asked Mr. Becker about a statement executed by Michael Thomas, an assistant to Jefferson Parish Councilman Thomas Capella. In the statement, Mr. Thomas indicated that he spoke with Mr. Becker about the April 7, 2008 incident. Mr. Thomas further indicated that Mr. Becker told him that he had fallen asleep while parked in his parish truck while waiting for a co-worker who had an appointment at Elmwood Industrial Medicine. Mr. Becker denied speaking to Mr. Thomas. However, Mr. Becker admitted that his uncle may have spoken to Bob D’Hemecourt, another of Councilman Capella’s staff members. In addition, at his second pre-disciplinary hearing on August 4, 2008, Mr. Becker was asked if he disagreed with anything contained in Mr. Thomas’s statement. At that time, Mr. Becker indicated that “everything else is pretty close.” Mr. Thomas testified at the Personnel Board hearing. According to Mr. Thomas, the person he talked to unambiguously identified himself as “Albert Becker.” Mr. Thomas indicated that after his conversation with Mr. Becker, he discussed the matter with Councilman Capella.

At the Personnel Board hearing, Mr. Muhoberac testified that he sent Parks and Recreation employees a letter in 2003 reminding them that they were not permitted to sleep in their vehicles. The letter was sent to Becker before he was disciplined for the 2003 incident but after the 2003 incident took place. According to Mr. Muhoberac, the rule had been in place before 2003. The letter was introduced into evidence. Mr. Muhoberac testified that as he approached Mr. Becker’s truck, Mr. Becker was awake. His leg was also propped up against the door. Mr. Mu-hoberac described Mr. Hamide as “aggravated.”

Mr. O’Quinn testified that he received Ms. Keller’s call at approximately 8:30 AM the morning of April 7, 2008. Mr. O’Quinn indicated that Ms. Keller told him that a man was inside a Parks and Recreation vehicle parked in the Aspen Riot. Mr. O’Quinn testified that Ms. Keller told him that the man was sleeping inside the truck. After taking Ms. Keller’s call, Mr. O’Quinn took Mr. Hamide’s call at approximately 9:00 AM. Mr. Hamide told Mr. O’Quinn that a man in Parks and Recreation vehicle number 2545 was sleeping and that he tried to get the man’s attention by banging on the window. Mr. O’Quinn testified that he then proceeded to Aspen. When he arrived at the Aspen parking lot, Mr. O’Quinn observed Mr. Becker with his leg propped against the door of the truck. Mr. O’Quinn talked to Mr. Becker. Mr. Becker told Mr. O’Quinn that he did not fall asleep and that he was on his break. Mr. O’Quinn testified that he told Mr. Becker to leave, and Mr. Becker complied.

LAW AND DISCUSSION

The Jefferson Parish Department of Parks and Recreation is a classified civil service system governed by a statutory system established by Title 33, Chapter 5, Part II, of the Louisiana Revised Statutes. Bonner v. Department of Parks and Recreation, 524 So.2d 255 (La.App. 5 Cir. 1988). Mr. Becker was a classified civil servant.

A classified civil servant is afforded protection in disciplinary actions taken without cause. La. Const, art. 10 § 8(A); Adams v. Jefferson Parish Department of Community Action Programs, 02-1090 (La.App. 5 Cir. 4/29/2003), 845 So.2d 1147; Leivis v. Jefferson Parish Dept, of Public Works, 99-16 (La.App. 5 Cir. 5/19/99), 761 So.2d 558, writ denied, 99-2906 (La.1/14/00), 753 So.2d 215. A dismissal of a civil servant “for cause” is synonymous with legal cause. Lewis, 761 So.2d at 559. Legal cause for disciplinary action exists if the facts found by the commission disclose that the conduct of the employee impairs the efficiency of the public service. Id. Further, the appointing authority is charged with the operation of its department, and it is within its discretion to discipline an employee for | cisufficient cause. Pope v. New Orleans Police Dept., 2004-1888, p. 5 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 5-6.

The civil service provisions of the Louisiana Constitution are designed to protect public career employees from political discrimination, such that “ ‘non-policy forming public employees are selected on the basis of merit and can be discharged only for insubordination, incompetency, or improper conduct, and not for religious or political reasons.” Bannister v. Dep’t of Streets, 95-404 (La.1/16/96), 666 So.2d 641, 645.

In Jefferson Parish, aggrieved public employees may apply to the Personnel Board for a review of discharge or disciplinary action, at which time the appointing authority bears the burden of proving legal cause. Adams v. Jefferson Parish Department of Community Action Programs, 02-1090 (La.App. 5 Cir. 4/29/03), 845 So.2d 1147. The Personnel Board can then consider only whether the action taken against the employee was made in good faith for cause. La. R.S. 33:2561; Ruddock v. Jefferson Parish Fire Civil Service Bd., 96-831 (La.App. 5 Cir. 1/28/97), 688 So.2d 112, 114-15.

On appeal, this court should apply the clearly wrong or manifest error rule. Wilson v. Jefferson Parish, 95-470 (La.App. 5 Cir. 1/17/96), 668 So.2d 1167, writ denied, 96-0413 (La.4/19/96), 671 So.2d 927. If made in good faith and for statutory cause, a decision of the civil service board should not be disturbed on judicial review. Moore, 839 So.2d at 945. Good faith does not occur if the appointing authority acts arbitrarily or capriciously, or as a result of prejudice or political expediency. Id. Arbitrary or capricious behavior means without rational basis for the action taken. Id. at 946.

FIRST SPECIFICATION OF ERROR

| min its first assignment of error, Mr. Becker contends that the Personnel Board erred in dismissing his appeal because the Department of Parks and Recreation failed to establish that he committed misconduct. We disagree.

The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Cure v. Dept. of Police, 2007-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, citing Marziale v. Dept. of Police, 2006-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767. The Board’s findings must be based on competent evidence. Ruddock v. Jefferson Parish Fire Civil Service Bd., 96-831 (La.App. 5 Cir. 1/28/97), 688 So.2d 112, 115. Incompetent evidence will not be considered by the appellate court on review. Id.

Accordingly, in order to prevail at the hearing, the appointing authority had to establish by a preponderance of the evidence that Mr. Becker committed misconduct. The parties do not dispute that the Department of Parks and Recreation had an explicit written policy that forbade Department employees from sleeping on the job. Counsel for the Department of Parks and Recreation entered the Jefferson Parish Employee Regulations of Conduct into the record. Rule 7.03 of the Regulations of Conduct is entitled “Prohibited Conduct 6 Grounds for Disciplinary Action.” Rule 7.03 explicitly prohibits “[sleeping on the job; wasting time; conducting personal business on Parish time,” and other activities. Rule 7.02 of the Regulations of Conduct provides that “corrective disciplinary action may extend to ... 7. Termination.”

We must therefore determine whether the appointing authority proved, by a preponderance of the evidence, that Mr. Becker was actually sleeping on the job. We find that the appointing authority met its burden of persuasion. Mr. Hamide | ^testified that he attempted to get a response from Becker for a period of “about ten minutes” to no avail. The appointing authority submitted several photographs into evidence. The photographs show Mr. Becker reclining in his parish assigned vehicle with his mouth open and his left leg propped up against the driver’s side window. Mr. Hamide admitted that he did not see Mr. Becker’s eyes closed because Mr. Becker was wearing sunglasses. Mr. Becker testified that he never fell asleep. Mr. Becker maintained that he read the newspaper and took several telephone calls whilst waiting for Mr. Charles. Moreover, Mr. Becker was adamant that he was merely reclining on the seat of his parish truck.

When the trier of fact’s determination is based on a decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 845 (La.1989). Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the court of appeal is convinced that had it been the trier of fact, it would have weighed the evidence differently. Rando v. Anco Insulations Inc., 2008-1163 (La.5/22/09), 16 So.3d 1065, 1087 (citing Parish Nat. Bank v. Ott, 02-1562 (La.2/25/03), 841 So.2d 749, 753). The Louisiana Supreme Court has announced a two-part test for the reversal of a factfin-der’s determination: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Ott, 841 So.2d at 753. The issue to be resolved by the reviewing court is not whether the trier of fact is right or wrong but whether the factfinder’s conclusion was a reasonable one. Id. Moreover, the Louisiana Supreme Court has determined that deference must be paid to factual | ^conclusions in civil service cases. See, e.g., Walters v. Department of Police of the City of New Orleans, 454 So.2d 106 (La. 1984).

In this ease, the hearing officer explicitly determined that Mr. Becker fell asleep in his truck. The hearing officer credited Mr. Hamide’s testimony, the photographs submitted into evidence, and Mr. Thomas’s testimony rather than Mr. Becker’s testimony. This was a reasonable conclusion. Mr. Hamide testified that he attempted to get Mr. Becker’s attention for approximately ten minutes. In the photographs submitted into evidence, Mr. Becker appears to be asleep in his parish vehicle. Mr. Thomas testified that he spoke with Mr. Becker and that Mr. Becker told him that he had fallen asleep in his parish vehicle while waiting for Mr. Charles. We cannot say that the hearing officer’s determination that the appointing authority sustained its burden of proof was manifestly erroneous. Accordingly, this specification of error has no merit.

SECOND SPECIFICATION OF ERROR

In his second assignment of error, Mr. Becker contends that the Personnel Board erred in finding that he impaired the efficient operation of the Department of Parks and Recreation. The thrust of Mr. Becker’s argument is that Mr. Wiley told him to wait for Mr. Charles at Elm-wood Industrial Medicine. Thus, Mr. Becker contends, he was free to determine how to “wait” at his own discretion.

The appointing authority must demonstrate, by a preponderance of the evidence, that the conduct complained of impaired the efficiency and orderly operation of the public service. Neuman v. Department of Fire, 425 So.2d 753, 754 (La.1983). As in other civil matters, deference should be given on appellate review to the factual conclusions of the Personnel Board. Id.

In St. Pe’ v. Jefferson Parish Dept, of Public Works-Drainage Pwm.p Stations, 06-779 (La.App. 5 Cir. 3/13/07), 956 So.2d 623, this Court implicitly 1 i;iheld that sleeping on the job impaired the efficient operation of the Jefferson Parish Department of Public Works — Drainage Pump Stations. In St. Pe\ the plaintiff was terminated from his position for sleeping on the job on multiple occasions. Id. at 624-25. The parties did not dispute that sleeping on the job impaired the efficient operation of the Jefferson Parish Department of Public Works. However, this Court upheld the plaintiffs termination. Id. at 626.

Similarly, we find Mr. Becker’s sleeping on the job impaired the efficient operation of the Jefferson Parish Department of Parks and Recreation. One of the primary goals of the Department of Parks and Recreation is public availability. When an employee in that service falls asleep in his parish-assigned truck, it casts doubt upon the credibility of the service to conduct one of its principal functions. Moreover, as previously mentioned, Rule 7.03 of the Jefferson Parish Employee Regulations of Conduct explicitly forbids parish employees from sleeping on the job. Mr. Becker was a parish employee who was found to be sleeping on the job. Mr. Becker makes much of the hearing officer’s conclusion that he was not required or ordered to remain at the site of the doctor’s office or accompany his co-employee into the doctor’s office. That, however, does not mean that Mr. Becker was free to fall asleep in his parish vehicle.

We find that the Department of Parks & Recreation proved by a preponderance of evidence that Mr. Becker’s actions impaired the efficient operation of the Department. Accordingly, this specification of error has no merit.

THIRD SPECIFICATION OF ERROR

In this specification of error, Mr. Becker contends that the Personnel Board erred in failing to find that the alleged offense he committed was not commensurate with the punishment he received.

| i,tThe Personnel Board has a duty to decide, independently from the facts presented, whether the appointing authority has good and lawful cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the dereliction. Wilson v. Jefferson Parish, 95-470 (La.App. 5 Cir. 1/17/96), 668 So.2d 1167, writ denied, 96-0413 (La.4/19/96), 671 So.2d 927. In evaluating whether the Personnel Board’s determination as to whether the disciplinary action is based on legal cause and commensurate with the infraction, this Court should not modify the Board’s decision unless it is arbitrary, capricious, or characterized by an abuse of discretion. Bannister v. Department of Streets, 95-0404 (La.1/16/96), 666 So.2d 641, 647.

Contrary to Mr. Becker’s assertions, the Louisiana case with facts most similar to this case is St. Pe\ supra. At the time the employee was terminated, Jefferson Parish had enacted Regulations of Conduct Rule 7.03 forbidding sleeping on the job. The employee had been observed sleeping on the job on two previous occasions. Id. at 624-25. This Court upheld his termination. Id. at 626.

We also note that a pattern of conduct which is detrimental to the continued efficient operation of a public office can be grounds for dismissal. Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962). Moreover, several individual lesser offenses have been found to constitute legal cause for dismissal. See, e.g., Matter of Geiger, 337 So.2d 549 (La. App. 2 Cir.1976) (fireman terminated for several violations of grooming regulation and refusal to trim his moustache). Here, it is undisputed that Mr. Becker was suspended for three days for sleeping on the job in 2003 and that he did not appeal his suspension.

After a thorough review of the record, we cannot say that the Personnel Board abused its discretion in determining that Mr. Becker’s punishment was 11scommensurate with the infraction he committed. Accordingly, this specification of error is without merit.

FOURTH SPECIFICATION OF ERROR

In his final specification of error, Mr. Becker contends the hearing officer committed a legal error by incorrectly stating his authority to review the punishment imposed by the Department of Parks & Recreation. The hearing officer’s conclusion states, “[t]he evidence, especially the photographs, show that Albert Becker was asleep in his truck and parked improperly. While conflicting statements show that he did not improperly supervise an employee, the penalty imposed is proper. The penalty was severe, but absence an abuse of discretion or mistake of fact, the Hearing Officer does not have the authority to modify the penalty.” Mr. Becker contends that the hearing officer’s conclusion was erroneous because a hearing officer has the authority to modify the penalty if the appointing authority cannot show legal cause for the penalty rather than if the appointing authority abused its discretion.

We agree that the hearing officer misstated its authority to modify the penalty imposed by the Department of Parks & Recreation. The Personnel Board is charged with the duty of reviewing this case to determine if the appointing authority had good or legal cause for terminating Mr. Becker’s employment. See by analogy Wilson v. Jefferson Parish, 95-470 (La.App. 5 Cir. 1/17/96), 668 So.2d 1167, writ denied, 96-0413 (La.4/19/96), 671 So.2d 927. Moreover, the Board must reduce a penalty when there is insufficient cause for imposing a greater penalty. Pope v. New Orleans Police Dept., 04-1888 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4. The hearing officer erred by concluding that he could not modify the punishment imposed by the appointing authority absent an abuse of discretion.

| , (¡However, when an error is detected, it must be weighed to determine whether such error is harmless or prejudicial. Short v. Gaylord Chemical Corp., 1998-0606 (La.App. 1 Cir. 4/1/99), 731 So.2d 493, 496. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, 735. Here, the error was harmless. For the reasons described above, the appointing authority proved by a preponderance of the evidence that Mr. Becker committed misconduct and that Mr. Becker impaired the efficient operation of the Department of Parks and Recreation. Furthermore, the punishment was commensurate with the offense.

In the instant case, the Department of Parks & Recreation had good cause for terminating Mr. Becker’s employment. Thus, the hearing officer’s legal error did not materially affect the outcome of these proceedings, nor did it deprive Mr. Becker of substantial rights. This specification of error is without merit.

CONCLUSION AND DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are taxed to Mr. Becker.

AFFIRMED.

      . Albert Becker will hereafter be referred to as "Mr. Becker.” The Jefferson Parish Personnel Board will hereafter be referred to as the "Personnel Board.”


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge. WICKER, J.,

license: Public Domain

text:
    Michael P. SCHOUEST v. Douglas J. BURR d/b/a Chilly’s Sno Balls, John Doe and XYZ Insurance Company.
    No. 09-CA-356.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 12, 2010.

      Michael A. Fenasci, Attorney at Law, New Orleans, LA, Wayne W. Yuspeh, Attorney at Law, Metairie, LA, for Plaintiff/Appellee.
    Michael R. Zsembik, Attorney at Law, Metairie, LA, for Defendants/Appellants.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| gDefendants/Appellants, Douglas J. Burr d/b/a Chilly’s Sno Balls and Travelers Indemnity Company of Connecticut (hereinafter referred to as “Travelers”), appeal the judgment from the 24th Judicial District Court, Parish of Jefferson, in favor of the Plaintiff/Appellee, Michael P. Sehouest. For the following reasons, we affirm.

FACTS

This case arises from the slip and fall by Plaintiff that occurred at Chilly’s Sno Balls stand on June 11, 2006. After purchasing three snowballs and being given a 12 inch by 12 inch container, Plaintiff descended the staircase of the snowball stand. While attempting to descend the second step, Plaintiff fell down the entire staircase and was injured. The steps in question were stipulated by Defendants to be in violation of proper and safe building requirements, in part having a difference of three and a half inches for a first riser and seven inches for the next riser.

13A trial on this matter was held on September 29 and 30, 2008. At the conclusion of the trial, the jury awarded the full extent of medical damages, assigned 10% comparative fault, and awarded $337,500.00 to Plaintiff. From these awards, Defendants filed an appeal with this Court.

ASSIGNMENTS OF ERROR

Defendants appeal and assign the following as errors: 1) the trial court erred in failing to sustain repeated objections to statements made by opposing counsel during voir dire, which had no purpose other than to demonize a party in this case in a post-Katrina environment hostile to the insurance industry; and, 2) the trial court erred in failing to grant a new trial as a remedy for the above assignment after all issues were resolved by the jury against Defendants through the verdict.

LAW AND ANALYSIS

Motion for New Tidal

Before addressing the merits of the specifications of error, we note that we must pretermit consideration of the denial of the Motion for New Trial. Denial of a motion for new trial is interlocutory and a non-appealable judgment. Roger v. Roger, 99-765 (La.App. 5 Cir. 1/12/00), 751 So.2d 354, 356; McCain v. Howell, 06-1830 (La. App. 1 Cir. 9/14/07), 971 So.2d 323, n. 1. The Louisiana Supreme Court has instructed the courts of appeal to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits when it is clear from the appellant’s brief that he intended to appeal the merits of the case. See, e.g., Schultz v. Shultz, 02-2534, p. 3 (La.App. 1 Cir. 11/7/03), 867 So.2d 745, 746-747 (quoting Carpenter v. Hannan, 01-0467, p. 4 (La.App. 1 Cir. 3/28/02), 818 So.2d 226, 228-229, writ denied, 02-1707 (La.10/25/02), 827 So.2d 1153).

After review of Defendants’ brief, it is obvious that they intended to appeal the admission of the statements made during voir dire by Plaintiffs attorney and |4the amount of damages awarded by the jury in correlation to the admission of the statements. Thus, we will address the appeal accordingly.

Voir Dire Statements

La. C.C.P. art. 1763(B) provides, “[t]he parties or their attorneys shall individually conduct such examination of prospective jurors as each party deems necessary, but the court may control the scope of the examination to be conducted by the parties or their attorneys.” The purpose of voir dire is to develop the prospective juror’s state of mind, not only to enable the trial judge to determine actual bias, but to enable counsel to exercise his intuitive judgment concerning the prospective jurors’ possible bias or prejudice. Trahan v. Odell Vinson Oil Field Contractors, Inc., 295 So.2d 224, 227 (La.App. 3 Cir. 1974). A trial judge is vested with broad discretion in regulating and supervising voir dire and in ruling on challenges, and his rulings governing the selection of a civil jury will be reversed only when a review of the entire voir dire reveals that the judge abused his broad discretion. Riddle v. Bickford, 00-2408 (La.5/15/01), 785 So.2d 795, 801.

Defendants contend that they were deprived of a fair trial due to the statements made by opposing counsel during the voir dire. Defendants further contend that these statements were totally irrelevant to the issues inherent in the trial of this matter, were inflammatory and nothing more than a calculated attempt to “demonize” Travelers as a member of the insurance industry.

As characterized by Defendants, the alleged most egregious examples of opposing counsel’s statements are:

(A) Are you aware that the McDonald’s coffee cup store [story] was promulgated by the insurance company people advertising it? [brackets supplied]
(B) We have seen what I call propaganda that has been smeared for (20) years
| S(C) I can’t get on an airplane without seeing an ad from some insurance company somewhere attempting to portray personal injury lawyers as animals, and the people they represent as less than human.

We will review each of these statements and the responses of both of the panels of the venire in their contexts.

First Panel

Statement C

The transcript of the voir dire provides that Plaintiffs counsel stated the following during the first panel:

Does anyone have a problem in a personal injury matter rendering a money judgment for physical harm given to a human being as a result of somebody’s wrongdoing, money judgment, to respond with money, because that is all we can do? Does anybody have any qualms about that? Any feelings about that? Anything like that? I’ve been doing that a long time, and for about 20 years now there has been a propaganda on the people of American conducted by billions of dollars in campaigns to brand people who come to courts of law as somehow frauds, fakes, frivolous lawsuits. Things of that nature. I’m sure you’ve seen it on T.V. I’ve read about it in Time Magazine. I can’t get on an airplane without seeing an ad from some insurance company somewhere attempting to portray personal injury lawyers as animals, and the people that they represent as some kind of a lesser human. I would like you to tell me if you have seen any of this stuff.

In general, three panel members, Mary Parfait, Eric Washington, and Peggy Key, replied that they were familiar with that particular portrayal of lawyers and their clients that Plaintiffs counsel described. When asked if the portrayal had any impact on them, the panel members either replied that it had no impact or that it would depend on the case. After hearing the answers of those panel members, Plaintiffs counsel cautioned the entire ve-nire by stating the following:

What we are looking for is a jury that will take the facts, the facts as they are elucidated and spoken from the witness stand, and apply the law that the judge will give you. The judge will be the law giver here, and the witnesses will give the facts. You will be able to do that, and disregard all of that stuff [fiyou have been hearing for 20 something years? Can you be fair and outright in that way?

Eric Washington stated that he had seen it on the television; however, he simply gave an answer of “I don’t know” at that time. Natale Lopiccolo voiced his opinion of personal injury plaintiffs but felt that he could apply the facts and the law given by the judge.

Statement A

Immediately after his discussion with Karen Daboval about personal injury plaintiffs, Plaintiffs counsel had the following dialogue with her:

Plaintiffs Counsel: Of course you heard the story about McDonald’s.
Karen Daboval: I’ve heard of that, like most people, but I don’t think it will affect me.
Plaintiffs Counsel: Are you aware that the McDonald’s coffee cup store [sic] was promulgated by the insurance company people advertising it? Are you aware of that?
Karen Daboval: No.

The attorneys then approached the bench, where Defendants’ attorney objected to the dialogue. The trial court judge allowed the line of questioning in respect to the panel members’ feelings on lawsuits.

Later, Plaintiffs counsel continued to ask Natale Lopiccolo the following:

Do you feel you could take the evidence, because I have asked everybody else, evidence from the witness stand and apply it to the law, putting aside any biases you may have for or against insurance companies? Because the fair question here is not just whether you can be fair to plaintiffs, but can you be fair to all parties? I will ask you to do that. Can you look at the cold hard facts, and administer the law as a general rule?

She responded, “Yeah, I think I can.”

To the same question, Don Barrilleaux answered with the following:

To be honest, I’m against insurance companies right now seeing everything that is going on with deductibles with all of these people’s houses messed up for the hurricane and ridiculous deductibles. No, I would be biased.

1^However, Don Barrilleaux was rehabilitated by Plaintiffs counsel and answered “Yes” that he would be able to put aside his biases against the insurance company and apply what the court required as a “fair American.”

Statement B

After being asked to repeat the question by Gary Mourain, Plaintiffs counsel stated, “It has been a while. We have seen a lot of what I call propaganda that has been smeared for 20 years — .” Defendants’ counsel again objected to what he categorized as an attack on the insurance industry. The trial court judge allowed the statement because Gary Mourain asked Plaintiffs counsel to repeat the question.

Plaintiffs counsel continued his questioning with the following:

And it is my belief that there has been a campaign assaulting plaintiffs attorneys, a campaign assaulting people who go to court and make claims. Have you seen that campaign?

Gary Mourain answered that he was familiar with the claims and was not a big fan of attorneys. He also acknowledged that he would probably be judgmental. Jacqueline Simmons admitted that she knew of false personal injury cases originating from her place of employment. However, she stated that she would be able to put aside those experiences and follow the law.

At the conclusion of Plaintiff’s counsel questioning of the first panel, he closed with the following:

I don’t want to be unfair to any insurance company. We know what has happened in New Orleans; we know what has happened in Jefferson Parish; we know that insurance companies have been investigated as of recent relative to their issues with floods and winds, and all sorts of things.
Does anybody have any prejudices in here against insurance companies wherein the prejudices are so great that you can’t render a fair verdict against them if we prove our case? No one?

The transcript of the voir dire does not document any response to the question by any of the panel members.

| sSecond Panel

At the beginning of the voir dire of the second panel, Plaintiffs counsel addressed the panel with the following:

On the insurance companies, it puts a lot of news information out to the general public, and they talk about frivolous lawsuits, lawyers, personal injury, all sorts of things like that. I’ll start over here. Did any of that have an impact on your feelings?

Kim Oswald did indicate that she would have a problem with weighing the evidence; however, she also indicated that her problem was due to her husband’s experiences with lawsuits. Craig Zibilich later answered,

As best I could, yeah, but there is a small part of me that is going to be — I’d like to be honest and say no, it wouldn’t, but I don’t know. I’m going to be honest. I don’t know. I’m not going to lie to you.

Other than the comments made by those two panel members, no other panel member indicated that they would not be fair and impartial.

After reviewing the entire voir dire, we find that the trial judge did not abuse his broad discretion in allowing the statements by opposing counsel. Although this Court does not condone several of the statements made by either counsel during the voir dire , the statements that were allowed by Plaintiffs counsel do not equate to a reversible error made by the trial court. Both Plaintiffs counsel and the trial judge admonished the jury. None of the answers from the members of either panel indicated they were negatively influenced by Plaintiffs counsel’s line of questioning against Defendants. Throughout the voir dire, both parties emphasized that the jury was to consider the evidence presented at trail and the law as they were instructed by the trial court. At the conclusion of the impaneling of the jury, all of the jurors chosen affirmed that they would remain unbiased and fair during | nthe trial and in their decision. Therefore, this Court will not disturb the trial court’s rulings.

Influence of Statements on Jury’s Verdict

It is well-settled that a Court of Appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Evans v. Lungrin, 97-0541(La.2/6/98), 708 So.2d 731, 735 citing Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). However, where one or more trial court legal errors interdict the factfinding process, the manifest error standard is no longer applicable, and if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. Evans v. Lungrin, 708 So.2d at 735. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Id. citing Lasha v. Olin Corp., 625 So.2d 1002, 1006 (La.1993). Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Evans v. Lungrin, 708 So.2d at 735.

The assessment of “quantum,” or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. Harvin v. ANPAC Louisiana Ins. Co., 06-204 (La.App. 5 Cir. 10/17/06), 944 So.2d 648, 657 citing Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70, 74. As such, “the role of an appellate court in reviewing general damages 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”. Hamn, 944 So.2d at 657. Before a Court of Appeal can disturb an award made by a fact finder, the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the | ,flextent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. Id. at 657-658. Appellate courts review the evidence in the light which most favorably supports the judgment to determine whether the trier of fact was clearly wrong in its conclusions. Burgard v. Allstate Ins. Co., 04-1394 (La.App. 5 Cir. 5/31/05), 904 So.2d 867, 880.

In the brief, Defendants argue that the jury’s verdict and award were influenced by the statements made by Plaintiffs counsel during the voir dire. Because of the alleged influence, Defendants further argue that the amount awarded to Plaintiff should be reduced by 50% comparative fault because it is inconsistent with the treatment and the evidence presented at trial. The jury found Plaintiff to be 10% comparatively at fault and awarded $337,500.00 to him.

After de novo review of the complete record, we find that the trial court did not commit a legal error by allowing the statements previously discussed in this opinion by Plaintiffs counsel. Further, we find that the verdict and award rendered by the jury was not an abuse of discretion coi'related to the alleged misconduct of Plaintiffs counsel. Ultimately, the jury decided in favor of Plaintiff and determined an award amount based upon the evidence presented during trial. There is not sufficient evidence to convince this Court that the jury was prejudiced against Defendants and to reverse the jury’s verdict and award. Therefore, this Court will not disturb the jury’s verdict or award.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s rulings. Defendants are to bear the court costs for this appeal.

AFFIRMED.

WICKER, J., Concurs and Assigns Reasons.

WICKER, J.,

concurs and assigns reasons.

|,I respectfully concur. I write separately because I feel compelled to emphasize that I disapprove of plaintiffs counsel’s method of ascertaining bias by referring to alleged advertisements by the insurance industry. I am convinced that such irrelevant and unsubstantiated comments clearly have the potential for invoking passion and prejudice. It is apparent that plaintiffs counsel was attempting to determine whether the members of the venire had any bias against the plaintiff because of personal views about personal injury lawsuits based on insurance advertisements criticizing personal injury lawyers. While this is a legitimate area of questioning during voir dire, counsel’s questioning bordered on an appeal to passion and prejudice. However, in my view, and after a careful review of the entire record of these proceedings, the potential for passion and prejudice and an unfair jury verdict was mitigated by the following: (1) The trial judge instructed the jury that the arguments of counsel were not evidence. (2) The trial judge instructed the jury that the case should be considered and decided as an action between persons of equal standing in the community and that a corporation is entitled to the same fair trial as is a private individual. (3) The trial judge instructed the jury that the jury must not base its deliberations on any differences as to the status of parties. (4) Both parties made it clear to the jury that ai’guments did not constitute evidence. (5) Plaintiffs counsel, in | ghis introductory comments to the prospective jurors and in questioning prospective jurors, asked them to be fair not only to his client but to the defendants. (6) During voir dire of the first panel, plaintiffs counsel made clear that he did not want to be unfair to any insurance company. (7) During the voir dire of the second panel, plaintiffs counsel stated that this case had nothing to do with any insurance company’s advertising. (8) Throughout the voir dire, both parties emphasized that the jury was to consider evidence presented at trial and the law as they were instructed by the trial court. (9) During plaintiffs counsel’s opening and closing statements, he made no reference to abuses in the insurance industry. (10) During closing arguments, defense counsel explained that this case had nothing to do with the insurance industry, plaintiff advertising, or insurance company advertising.

Therefore, in reviewing the record as a whole, and considering the circumstances of this case, I believe that such comments did not invoke such passion and prejudice that the rights of the defendants were unduly impaired. Given the plaintiffs expert’s unrefuted testimony in evaluating the ultimate verdict of the jury, I am not convinced that the jury was so biased against the insurance industry that it rendered the verdict that it did.

Therefore, I write separately to concur in the result reached by the majority.

      . Although Defendants listed the statements in a particular order in their brief, we will address the statements in the order they took place, according to the transcript of the voir dire.

      . The counsel for both parties made statements which could be considered inflammalo-ry concerning the opposing side.


author: PAUL A. BONIN, Judge. LOMBARD, J., BONIN, J.,

text:
    STATE of Louisiana v. Percy ALLEN.
    No. 2009-KA-0813.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 2010.

      John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Percy Allen.
    Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    (Court composed of Judge DENNIS R. BAGNERIS, SR, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

|2Percy Allen was convicted by a six-person jury of the crime of simple possession of cocaine. La. R.S. 40:967 C. Adjudicated a quadruple felony offender, he was sentenced to twenty years at hard labor, ■without benefit of probation or suspension of sentence. La. R.S. 15:529.1 A(l)(c)(i). In addition to requesting us to review for errors patent, which we always do, he solely appeals the excessiveness of his sentence. For the reasons which follow, we affirm the conviction and sentence.

I

While patrolling shortly after midnight, two New Orleans police officers came upon a car stopped in the middle of the street. A pedestrian was leaning into the car. Alerted to the police, the driver of the car sped away, but the police gave brief chase. During the chase, one of the officers observed the driver discard objects. After the driver and passenger were stopped and secured, the officer ^retrieved from the side of the street crack cocaine in a packet and a crack pipe. The driver, Mr. Allen, was arrested for possession of cocaine. The crack weighed 4.98 grams. The maximum penalty for that amount of cocaine is five years at hard labor. La. R.S. 40:967 C(2).

Mr. Allen had been convicted of three prior felonies: (1) illegal use of a firearm in 1993, (2) second degree battery in 2003, and (3) possession of cocaine in 2004. After a hearing on the multiple bill allegation, the court on October 14, 2008 adjudicated Mr. Allen a quadruple offender. La. R.S. 15:529.1 A(l)(c)(i) provides:

Any person who, after being convicted within this state of a felony ..., thereafter commits any subsequent felony in this state, upon conviction of said felony, shall be punished as follows: ... If the fourth or subsequent felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then: ... The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life ...

The district judge imposed the twenty year sentence without benefit of probation or suspension of sentence. La. R.S. 15:529.1 G. Immediately following the imposition of sentence, the sentencing judge invited Mr. Allen’s private defense counsel to orally move for reconsideration. Defense counsel moved for reconsideration, which was immediately denied. La. C.Cr.P. art. 881.1 B and D.

II

We have reviewed the record for errors patent. La.C.Cr.P. art. 920(2). We have found none, but note a discrepancy between the sentencing transcript and the |,(minute entry. The twenty year sentence announced by the judge was without benefit of probation or suspension of sentence. The minute entry records that the sentence is without benefit of probation, parole, or suspension of sentence. Ordinarily, the transcript is controlling over the minute entry. State v. Lynch, 441 So.2d 732, 734 (La.1983). The minute entry in this case is, however, legally correct. La. R.S. 15:574.4 A(l) provides in pertinent part that “[a] person convicted of a third or subsequent felony offense shall not be eligible for parole.” See also La. R.S. 15:301.1 A. The Louisiana Supreme Court held in State v. Williams, 00-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799 that:

In instances where these restrictions are not recited at sentencing, L.A. REV. STAT. ANN. § 15:301.1(A) deems that those required statutory restrictions are contained in the sentence, whether or not imposed by the sentencing court. Additionally, this paragraph self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute.

Ill

We turn now to Mr. Allen’s assignment of error that his sentence is excessive. The United States Supreme Court in Solem v. Helm, 463 U.S. 277, 284-290, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), set forth the following principle:

The Eighth Amendment declares: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The final clause prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed.
The principle that a punishment should be proportionate to the crime is deeply rooted and frequently repeated in common-law jurisprudence.... Although the precise scope of this provision is uncertain, it at least incorporated “the longstanding principle in English law that the punishment ... should not be, by reason of its | Sexcessive length or severity, greatly disproportionate to the offense charged....
When the Framers of the Eighth Amendment adopted the language of the English Bill of Rights, they also adopted the English principle of proportionality.... Thus our Bill of Rights was designed in part to ensure that these rights were preserved. Although the Framers may have intended the Eighth Amendment to go beyond the scope of its English counterpart, their use of the language of the English Bill of Rights is convincing proof that they intended to provide at least the same protection— including the right to be free from excessive punishments....
In sum, we hold as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted. Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as the discretion that trial courts possess in sentencing convicted criminals. But no penalty is per se constitutional....

The Louisiana Supreme Court in State v. Dorthey, 623 So.2d 1276 (La.1993), relying in part on La. Const, art. I, § 20 (“No law shall subject any person ... to cruel, excessive or unusual punishment.”) remanded the case

for its determination as to whether the minimum sentence mandated for this habitual criminal defendant by virtue of R.S. 15:529.1 for simple possession of cocaine is constitutionally excessive as applied to this particular defendant, and for appropriate sentencing.

Dorthey emphasized the judiciary’s constitutional duty to review sentences for excessiveness:

... we recognize that the review of sentencing, including sentencing under R.S. 15:529.1, is a long established function of the judicial branch. Accordingly, Louisiana’s judiciary maintains the distinct responsibility of reviewing sentences imposed in criminal cases for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762 (La.1979). According to Sepulvado, the 1974 Louisiana Constitution, Article I, Section 20 “ ‘gives the courts, in the exercise of their judicial power, a basis for determining that sentences, whether fíne, imprisonment or otherwise, though not cruel and unusual, are too severe as punishment for certain conduct and thus unconstitutional. It is a basis for extending the court’s control over the entire sentencing process.’” Id. at 766, citing “The Declaration of Rights of the Louisiana Constitution of 1974”, 35 La. L.Rev. 1, 63 (1974). Thus, “[t]he imposition of a sentence, although within the statutory limit, |timay violate a defendant’s constitutional right against excessive punishment ...” Id. at 767. Accordingly, under the 1974 Constitution “the excessiveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.” Id. at 764 .... (emphasis added)

Dorthey, supra at 1280. If a sentence is constitutionally excessive, a sentencing judge has not only the option but “indeed the duty [ ] to reduce such sentence to one that is not.” Id.

Mr. Allen’s private counsel did not comply with the statutory requirements for properly preserving an objection or claim for excessiveness on appeal. See La. C.Cr.P. arts. 881.1 E and 881.2 A(l). We would, however, consider the claim of ex-cessiveness when there has been a timely objection to the sentence upon denial of a motion to reconsider. State v. Miller, 00-0218, p. 8 (La.App. 4 Cir. 7/25/01), 792 So.2d 104, 111. In this case, the district judge both suggested to the defense counsel the urging of the motion to reconsider and supplied on behalf of the defense counsel the objection to the court’s ruling. Thus, the issue of excessiveness is proee-durally preserved for review. There are no facts in the record which individualize or particularize this defendant or his circumstances. We know virtually nothing about him, including his age or whether he is or was addicted to crack cocaine, or whether any previous periods of incarceration had failed to curb his criminal conduct. In short, there is nothing substantive for us to consider in determining whether this sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime.” DoHhey, supra at 1280-1281. Based on this record, we cannot say that Mr. Allen’s situation is one of those rare cases deserving of a ^downward departure from the habitual offender law. See State v. Johnson, 97-1906, p. 8 (La.3/4/98), 709 So.2d 672, 677.

DECREE

The conviction of Percy Allen for simple possession of crack cocaine is affirmed. His sentence of twenty years at hard labor without the benefit of probation, parole or suspension of sentence is also affirmed.

AFFIRMED.

LOMBARD, J., concurs with reasons.

BONIN, J., concurs with reasons.

LOMBARD, J.,

concurs with reasons.

I,The sole issue in this case is whether the district court erred in denying the defendant’s motion for reconsideration of sentence. The Habitual Offender Law in its entirety is constitutional and, accordingly, the minimum sentences it imposes upon multiple offenders are presumed constitutional. Courts always retain the power to declare a sentence excessive under Article I, Section 20 of the Louisiana Constitution, but this power is “exercised only when the court is clearly and firmly convinced that the minimum sentence is excessive” and in this case the trial judge chose to impose the mandatory minimum sentence.

There is no dispute that in Louisiana claims of excessive sentencing and ineffective assistance of counsel at sentencing are not cognizable on collateral review. However, an ineffective assistance of counsel claim requires both a showing that the counsel was deficient and a showing that such deficiency resulted |2in prejudice. Thus, the question is not whether counsel was “particularly skillful,” but whether he was ineffective to the point of being prejudicial and whether a different outcome was likely but for his ineffective assistance. Ineligibility to practice is not, of course, prejudicial per se and, in any event, appellate courts are courts of record and may not review evidence that is not in the appellate record or receive new evidence. Thus, whether counsel was ineligible due to non-payment of bar dues is not germane.

I, too, am concerned for the defendant’s rights and the extent to which the Melinie decision forecloses collateral review of sentences and effective assistance of counsel at sentencing. However, review of a Louisiana Supreme Court decision is beyond the purview of this court and we should not attempt to make an end-run around their decision by going outside the record, establishing a precedent for the court to comb bar rolls, or second-guessing an attorney’s decisions in the guise of an effective assistance review on direct appeal. Accordingly, affirmation of the defendant’s conviction and sentence is appropriate.

BONIN, J.,

concurs with reasons.

lil write additionally and separately to call attention to the concern that this defendant, and likely many others like him, will never have the benefit of a meaningful judicial review of his claim of an unconstitutionally excessive sentence, a sentence which is proscribed by the Eighth Amendment and Louisiana Const, art. I, § 20. Mr. Allen’s sentence is presumptively constitutional. State v. Johnson, 97-1906, pp. 5-6 (La.3/4/98), 709 So.2d 672, 675. But no sentence is per se constitutional. Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).

Superficially at least, Mr. Allen’s sentence is comparable to the one in State v. Dorthey, 623 So.2d 1276 (La.1993) in that he is a quadruple offender sentenced to the so-called mandatory minimum sentence of twenty years for the simple possession of a small amount of crack cocaine. The fact that we have recognized his ineligibility for parole is a further important factor in the consideration of the exces-siveness of his sentence. See, e.g., Solem, supra at 297 (comparing the life sentence without eligibility to the life sentence with eligibility for parole in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2cl 382 (1980)). But Mr. Allen will never get a substantive Dorthey review.

|2A direct appeal is the last chance in Louisiana for a convicted person to obtain judicial review of his or her sentence for constitutional excessiveness; post-conviction relief is unavailable on a claim of sentencing excessiveness. See La.C.Cr.P. art. 930.3. The Louisiana Supreme Court made clear in State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172 that

La.Code Crim. Proc. Art. 930.3, which sets out the exclusive grounds for granting post-conviction relief, provides no basis for review of claims of excessiveness or other sentencing error post-conviction. [citations omitted] Accordingly, relator’s claim for post-conviction based on the excessiveness of his sentence is denied.

More importantly for this discussion, citing only to Melinie and La.C.Cr.P. art. 930.3, the Louisiana Supreme Court in a per curiam decision recently (and after the briefing deadlines in this case) declared that a claim of ineffective assistance of counsel at sentencing is not cognizable on collateral review. State v. Thomas, OS-2912 (La.10/16/09), 19 So.3d 466. Accordingly, Mr. Allen cannot successfully raise a claim of ineffective assistance of counsel at sentencing through an application for post-conviction relief. As far as the excessiveness of his sentence is concerned, this appeal is the end of the road for Mr. Allen.

Due to the “critical nature of sentencing in a criminal case ... the right to counsel applies at sentencing.” Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254,19 L.Ed.2d 336 (1967). In Mempa, the Court stated:

“[T]he necessity for the aid of counsel in marshaling the facts, introducing evidence of mitigating circumstances and in general aiding and assisting the defendant to present his case to sentence is apparent.
Even more important in a case such as this is the fact that certain legal rights may be lost if not exercised at this stage.

\-Jd. at 135 (emphasis supplied)

Later, in its decision McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968) (per curiam), the United States Supreme Court held that the Sixth Amendment “right to counsel at sentencing must, therefore, be treated like the right to counsel at other stages of adjudication.” The Louisiana Supreme Court in State v.

White, 325 So.2d 584 (La.1976), noted that, in addition to the Sixth Amendment right to counsel,

Our state constitution recognizes the right to the assistance of counsel at every stage of the proceedings against a person accused of a crime, La. Const. Art. 1, Section 13 (1974), unless this right is intelligently waived....
A defendant is entitled to the assistance of his counsel at his sentencing; a sentence imposed in the absence of counsel is invalid and must be set aside, [citations omitted]
The amendment or correction of sentence was imposed upon the present defendant without his counsel being present. By reason of the legal authority above set forth, an amended or corrected sentence imposed without the assistance of counsel is invalid, at least where it arguably affects unfavorably the rights of the accused or where counsel might be of substantial assistance to the accused if present, (emphasis added)

In Maine v. Moulton, 474 U.S. 159,168-169, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985), the United States Supreme Court emphasized the indispensable right to counsel:

The right to the assistance of counsel guaranteed by the Sixth and Fourteenth Amendments is indispensable to the fair administration of our adversarial system of criminal justice. Embodying “a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself,” Johnson v. Zerbst, 304 U.S. 458, 462-463, 58 S.Ct. 1019, 82 L.Ed. 1461 ... (1938), the right to counsel safeguards other rights deemed essential for the fair prosecution of a criminal proceeding.

During our court’s consideration of this matter, it was learned that Mr. Allen’s counsel has been ineligible to practice law since October 1, 2008 for non-payment of bar dues and disciplinary assessment fees and is currently under interim suspension by the Louisiana Supreme Court. See In re Boyer, 09-1735 |4(La.7/29/09), 13 So.3d 1126. The multiple bill hearing was held on October 14, 2008, and, on October 28, 2008, Mr. Allen was sentenced and his motion for reconsideration was denied. At no time did his counsel seek to introduce evidence or argue to the sentencing judge any facts which would support a finding that a twenty year sentence, without benefit of probation, parole, or suspension of sentence was excessive. There is nothing in the record to reasonably inform either the sentencing judge or a reviewing court about the particulars of Mr. Allen, his crime, or his criminal history other than the multiple bill allegations. We do not know, for example, his age, whether he is a crack addict, whether he had ever been treated for drug addiction, or whether lesser periods of incarceration had failed in deterring his illegal conduct. Whether, however, Mr. Allen was prejudiced at sentencing by the representation, especially since the record of his counsel’s handling of the motion to reconsider sentence to preserve appellate review for constitutional excessiveness does not seem particularly skillful, see State v. Lentz, 02-1201, p. 5 (La.4/9/03), 844 So.2d 837, 840, one cannot say from the bare record of the proceedings below.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), requires a dual determination that the defendant suffered from a breakdown in the adversary process that renders the result unreliable, that is the defendant must (1) show that counsel’s performance was deficient and (2) show that the deficient performance prejudiced the defense to the extent elaborated by Glover v. United States, 531 U.S. 198, 203, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001) (“Authority does not suggest that a minimal amount of additional time in prison cannot constitute prejudice. Quite to the contrary, our jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance.”). Because of the paucity of factual information, no reviewing court Lean ascertain on this record whether this sentence could have been corrected on appeal, see Glover, 531 U.S. at 204, and, if so, what is the sentence of the greatest length which would not be constitutionally excessive. See State v. Addison, 94-2745 (La.6/23/95), 657 So.2d 974, 975. Our court on this record is simply unable to afford Mr. Allen a meaningful review of whether the Eighth Amendment’s “narrow proportionality principal” as applied to his non-capital sentence is violated. See Ewing v. California, 538 U.S. 11, 20, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) and Dorthey, supra.

Moreover, under Thomas as I understand its import, no Louisiana court in the future will be able to apply Strickland to Mr. Allen’s counsel’s professional performance at his sentencing, which is arguably the most critical moment for a quadruple offender to have the effective assistance of counsel in asserting and preserving his rights. If Thomas does preclude post-appeal inquiry into counsel’s performance at sentencing and thereby insulates from judicial review a potentially excessive and disproportionate sentence imposed due to the failure of defense counsel to present a case for downward departure, then one would expect that future appellants would carefully consider assigning as error on their direct appeals not only the sentence’s excessiveness but also the ineffective assistance of their counsel at sentencing. Of course, in our adversarial system the better practice remains zealous advocacy by the defendant’s counsel in making a complete factual record at the sentencing hearing and at the hearing on the motion to reconsider so that the sentencing judge and the reviewing judges can meaningfully discharge then* constitutional duty to review a sentence for excessiveness.

      . The multiple bill hearing was conducted in very much the same manner as this writer described, and criticized, in State v. Conner, 08-473, p. 9 (La.App. 4 Cir. 10/1/08), 996 So.2d 564, 569-571 (Bonin, J, concurring in part and dissenting in part).

      . State v. Johnson, 97-1906, pp. 5-6 (La.3/4/98), 709 So.2d 672, 675.

      . Johnson, 97-1906 at 6, 709 So.2d at 676.

      . Thus, there is no question that the defendant will be unable to raise either claim through an application for post-conviction relief and it is unnecessary to refer or cite unpublished opinions, a practice disfavored by the Louisiana Supreme Court, is unnecessary. See Roberts v. Sewerage and Water Board of New Orleans, 92-2048 (La.3/21/94), 634 So.2d 341, 349; Uniform Rules of Louisiana Courts of Appeal, Rule 2-16.

      . State v. Thomas, 2008-2912 (La.10/16/09), 19 So.3d 466 (citing La.Code Crim. Proc. art. 930.3 and State v. ex rel Melinie v. Slate, 93-1380 (La.1/12/96), 665 So.2d 1172).

      . Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (to establish prejudice, a defendant must prove that these errors deprived him of a fair trial by showing that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”); State v. Garland, 482 So.2d 133, 135 (La.App. 4 Cir.1986) (defendant satisfy both prongs of test to establish that counsel was so ineffective as to require reversal).

      . State v. Lentz, 2002-1201 (La.4/9/03), 844 So.2d 837, 840 (counsel's ineligibility to practice due to noncompliance with state CLE requirements not ineffective assistance per se); State v. McKinsey, 2000-0406, p. 12 (La.App. 4 Cir. 1/17/01), 779 So.2d 993, 1000 (allegation of ineffective assistance must be coupled with specific showing of prejudice, specifically particularized acts and omission occasioned by counsel’s non-compliance with CLE requirements that were prejudicial to the point of ineffective assistance).

      . Denota, v. Vessel Mgmt. Sews., Inc., 07-2143, p. 6 (La.5/21/08), 983 So.2d 84, 88.

      . See, e.g., Hamilton v. Royal International Petroleum Corporation, 05-846 (La.2/22/06), 934 So.2d 25.

      . The sentence is only “mandatory” if and when the prosecutor exercises his or her unbridled discretion to charge a defendant as an habitual offender. See La. R.S. 15:529.1 D(l)(a) ("... the district attorney of the parish in which the subsequent conviction was had may file an information accusing the person of a previous conviction ...” (emphasis supplied)). See also State v. Johnson, 97-1906, p. 11 (La.3/4/98), 709 So.2d 672, 678-679 (Johnson, J., dissenting).

      . There has been a consistent line of unpublished cases in which this circuit applied the same rule pre-Thomas. See State v. Cobb, 09-468 (La.App. 4 Cir. 7/27/09) (unpub.); State v. Lindsey, 01-1519 (La.App. 8/27/01) (unpub.); State v. Gills, 00-2305 (La.App. 4 Cir. 11/21/00) (unpub.), and State v. Rousell, OS-85 1 (La.App. 4 Cir. 8/4/08) (unpub.).

      . I do not venture into Mr. Allen’s possibilities under federal habeas relief under 28 U.S.C. § 2254. See, e.g.. Ward v. Dretke, 420 F.3d 479 (5th Cir., 2005).

      . See also the Petition For Interim Suspension Under Louisiana Supreme Court Rule XIX, Section 19.2 filed by the Office of Disciplinary Counsel.

      . See State v. McKinsey, 00-406, p. 14 (La.App. 4 Cir. 1/17/01), 779 So.2d 993, 1001.

      .In Lentz there was a hearing record from the trial court upon which the appropriate factual and legal evaluations could be made.


author: PATRICIA RIVET MURRAY, Judge.

text:
    Warren J. GIBSON v. DEPARTMENT OF POLICE.
    No. 2009-CA-1015.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 2010.

      Gary M. Pendergast, Gary M. Pender-gast, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Penya Moses-Fields, City Attorney, Nolan P. Lambert, Chief Deputy City Attorney, Victor L. Papai, Jr., Assistant City Attorney, Natasha Renee Floyd, Law Clerk, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY).
   PATRICIA RIVET MURRAY, Judge.

bln this appeal, Officer Gibson, an employee of the New Orleans Police Department (NOPD), seeks reversal of the Civil Service Commission’s decision upholding an eighty-day disciplinary suspension imposed upon him by the appointing authority, the NOPD. The suspension consisted of twenty days for Officer Gibson’s violation of departmental rules requiring the reporting of an officer’s use of force in making an arrest, and sixty days for his violation of the departmental rules concerning truthfulness. Officer Gibson filed an appeal to the Commission, seeking review of the suspension. The Commission appointed a hearing officer to take testimony. Although the hearing officer recommended that the suspension be reversed, the Commission ultimately denied Officer’s Gibson’s appeal and upheld the appointing, authority’s action. For the reasons that follow, we reverse the Commission’s decision.

FACTS AND PROCEEDINGS BELOW

The incident which resulted in Officer Gibson’s suspension began when he responded to a call concerning Ms. Rhodes, who had suffered a dog bite. While the ambulance personnel were treating Ms. Rhodes, her neighbor Ms. Jackson, who had been in an earlier altercation with Ms. Rhodes, was standing in her |2doorway yelling at and taunting Ms. Rhodes. Officer Gibson approached Ms. Jackson, and requested that she step outside her residence. When she refused, Officer Gibson grabbed her arm. According to Ms. Jackson, Officer Gibson then pulled her down the stairs and over a railing, causing an injury to her inner thigh.

At the hearing, the NOPD called two witnesses: EMT Terry Boudreaux, and NOPD investigator Sgt. Gabriel.

Mr. Boudreaux testified that he responded to a call for an ambulance for a lady with a leg injury. Mr. Boudreaux stated that when he and his partner, EMT Stefancik, arrived on the scene, Ms. Jackson was already in custody, sitting in an NOPD vehicle. Mr. Boudreaux testified he found an approximately one-inch long superficial abrasion on her upper left thigh and that there was no bleeding. Mr. Bou-dreaux’s report, introduced as an exhibit, stated “bleeding is controlled.” Mr. Bou-dreaux also testified that Ms. Jackson refused to be taken in an ambulance to the hospital. Mr. Boudreaux did not recall having spoken to any police officers on the scene. He also identified the ambulance dispatch reports, which showed that a different unit, manned by EMT’s Thore and Adams, had responded approximately forty minutes earlier to a dog-bite incident in the same block.

After receiving a complaint from Ms. Jackson, the Public Integrity Bureau assigned Sgt. Gabriel to investigate the matter. According to Sgt. Gabriel, the incident occurred on February 6, 2007; Ms. Jackson went to the doctor on February 9, 2007, and filed a complaint on February 12, 2007. Sgt. Gabriel testified about the contents of Ms. Jackson’s complaint. It indicated that because Ms. Jackson had been in an argument with Ms. Rhodes earlier that day, Ms. Jackson had stood in her doorway yelling “God doesn’t like ugly” while the EMT was treating Ms. Rhodes. Officer Gibson had then approached Ms. Jackson and asked her to come Rdown the stairs, but when she refused, Officer Gibson had pulled her down by her arm, causing her to slip, fall backwards into her residence, and hit a piece of furniture, namely a coffee table, cabinet, or entertainment center. Officer Gibson had then come inside to arrest her, at which point Ms. Jackson swung her arm and knocked his tie off. He then dragged her outside and down the stairs by her wrist, causing her to scrape her groin area against the top of the jagged metal handrail.

As part of his investigation, Sgt. Gabriel went to Ms. Jackson’s home to inspect the handrail and spoke with Ms. Jackson. He stated that the jeans Ms. Jackson said she wore that night showed some minor bleeding on the inside of the pants and were ripped in the area where the injury allegedly had occurred. There were no more than two to three steps leading to Ms. Jackson’s doorway. Sgt. Gabriel testified the edges of the stair rail were rough, such that pulling someone over the rail with a lot of force would probably have resulted in some type of injury.

In addition, Sgt. Gabriel testified that Ms. Jackson told him two witnesses to the event had come forward. However, after speaking with them, Sgt. Gabriel determined their stories were too conflicting to be credible. One witness, Ms. Seals, stated that Officer Gibson had fallen on top of Ms. Jackson; whereas, the other, Ms. Wood, stated that Officer Gibson had entered Ms. Jackson’s home with a gun. Sgt. Gabriel testified that he believed these witnesses had been coerced into giving statements.

Sgt. Gabriel also identified Ms. Jackson’s medical records. On the doctor’s screening form, Ms. Jackson had indicated she needed medical attention due to a police officer’s having pulled her out of her door and over a damaged railing, scraping her pelvic area.

^Finally, Sgt. Gabriel testified that he had interviewed Officer Gibson as part of the investigation. In the interview Officer Gibson had claimed he had been standing next to the stair rail, with his body between the railing and Ms. Jackson, and that therefore the injury could not have occurred in the way Ms. Jackson had claimed. Sgt. Gabriel said he questioned Officer Gibson’s truthfulness because Officer Gibson was claiming he did not injure Ms. Jackson, despite the fact that Officer Gibson had called an ambulance. Sgt. Gabriel then identified the dispatch record for the event which revealed Officer Gibson had requested an ambulance for a leg injury. Sgt. Gabriel also noted that prior to requesting the ambulance, Officer Gibson had issued a request for additional police units because at some point, Ms. Jackson’s boyfriend had come outside. To prevent the boyfriend from interfering with Ms. Jackson’s arrest, Officer Gibson had pointed his gun at him.

Sgt. Gabriel testified anytime an individual is arrested and complains of an injury, it is necessary for an officer to notify his supervisor of the injury or alleged injury. Sgt. Gabriel concluded that Officer Gibson had failed to notify his supervisor of Ms. Jackson’s complaint because there was no explanation of how her injury had occurred in Officer Gibson’s incident report, nor was there an injury report made by the supervisor. Officer Gibson’s report had indicated only that an ambulance had treated Ms. Jackson. Sgt. Gabriel testified that regardless of whether there has been an actual injury, any claim of injury should have generated a report from the supervisor. Sgt. Gabriel further testified that the presence of an ambulance on the scene would be enough to trigger such a report. According to Sgt. Gabriel, the use of force on a subject who is resisting arrest also requires a supervisor’s report. Because there was no such report made in this case, Sgt. |fiGabriel concluded Officer Gibson had not been truthful with his supervisor about his use of force and Ms. Jackson’s resulting injury.

Officer Larissa Austin and Sgt. Davalier testified on behalf of Officer Gibson. Officer Austin said she had responded to Officer Gibson’s request for assistance. Officer Austin said she noticed Officer Gibson talking to his rank (supervisor); she also noticed that an ambulance was on the scene. The ambulance personnel had already examined Ms. Jackson. Officer Austin patted down Ms. Jackson before transporting her to the lockup. Officer Austin testified that Ms. Jackson did not speak on the way to the lockup. According to Officer Austin, when Ms. Jackson was asked at the lockup if she had any medical problems that required attention, she responded that she did not. Officer Austin also testified that the lockup will not accept a prisoner who is injured.

Sgt. Davalier testified that he was the supervisor of Officer Gibson and had arrived on the scene after receiving a phone call from Officer Gibson. When Sgt. Da-valier arrived, he questioned Ms. Jackson, who stated that Officer Gibson had grabbed her and she had fallen across the railing; however, she also stated that she was not hurt. Sgt. Davalier testified that he observed no bruising or other signs of injury on Ms. Jackson. Although he offered to have Ms. Jackson transported to the hospital, she refused. Sgt. Davalier then spoke with Officer Gibson, who admitted that he had grabbed Ms. Jackson, but insisted that she had not fallen across the rail. Sgt. Davalier also testified that some third party told him that Ms. Jackson had fallen into the living room knocking over a table, but when he checked the residence, Sgt. Davalier found nothing amiss.

Sgt. Davalier testified that he concluded the incident was merely an arrest of individual who was not happy to be going to jail. He chose not to prepare a use of | ¡¡force report because there was no sign of a struggle and because Ms. Jackson claimed no injury, nor had any visible signs of injury. However, Sgt. Davalier recalled that he had told Officer Gibson on the phone to call an ambulance because Officer Gibson had admitted to having put his hands on Ms. Jackson during the arrest. Sgt. Davalier testified that he did not speak to the ambulance personnel, which he deemed unnecessary in light of Ms. Jackson’s statement of no injury and her refusal of treatment.

Lastly, Officer Gibson testified on his own behalf. He said he was investigating a dog bite case when Ms. Jackson called out to the victim, “That’s good for you. I wish the dog would have ripped your f — ing arm off.” Officer Gibson approached Ms. Jackson and asked her to come down the stairs because he intended to issue her a summons for disturbing the peace. Ms. Jackson refused and began to get loud, at which point Officer Gibson noticed that some of the neighbors began to cross the street. Officer Gibson said he then walked up the stairs, grabbed Ms. Jackson by the right arm, and escorted her down the stairs to a car. Officer Gibson testified that his leg was between her two legs and he had one arm handcuffed when Ms. Jackson’s boyfriend began to approach. After drawing his weapon and ordering the boyfriend to stay back, Officer Gibson called for additional units. In addition, Officer Gibson requested that his supervisor, Sgt. Davalier, come to the scene, because Sgt. Davalier liked to be informed of everything. According to Officer Gibson, when he phoned Sgt. Dava-lier, Sgt. Davalier told him he was on his way and to make sure to call EMS. Officer Gibson stated that Sgt. Davalier and the additional police units arrived on the scene just as the EMT’s were examining Ms. Jackson. Officer Gibson then requested that Officer Austin take Ms. Jackson so that he could start writing his report in his 17vehicle. Officer Gibson testified that while he was sitting in his vehicle, one of the EMT’s approached and informed him that Ms. Jackson was not injured. Officer Gibson then requested that the EMT who was speaking to him give the same information to his supervisor. Officer Gibson testified that Sgt. Davalier also came to his vehicle and spoke to him. Sgt. Davalier asked him whether he had used any force that would require a use of force report, and he responded “No;” at which point Sgt. Davalier said “You didn’t use your baton or no mace, the spray?” Officer Gibson again said no, and Sgt. Davalier said “Okay, fine.” Sgt. Davalier then went over and spoke to Ms. Jackson. Later, he came back to the vehicle and instructed Officer Gibson to have his report on his desk in the morning.

Officer Gibson first indicated that there were two different ambulance units: one that responded to the dog-bite incident and a separate one that responded to the call about Ms. Jackson. Later in his testimony, however, he said that the same ambulance that had responded the first time had returned to the scene to examine Ms. Jackson. Officer Gibson was never asked to explain this discrepancy in his testimony. In his testimony, Officer Gibson reiterated that Ms. Jackson did not fall at the scene, either in her house or on the railing. Officer Gibson stated he charged Ms. Jackson with disturbing the peace, resisting arrest, and criminal damage to property (because she had swung at him and knocked off his tie and tie tack, breaking his tie tack).

After hearing the testimony, the hearing officer recommended that Officer Gibson’s appeal be upheld based upon the testimony of his supervisor, Sgt. Davalier, and the fact that Ms. Jackson did not testify.

However, the Commission denied the appeal. The Commission found that the record contained “troubling inconsistencies,” and that therefore the most Iscredible fact evidence came from the EMT’s and the ambulance dispatch records. The Commission particularly focused upon what it saw as an inconsistency between Officer Gibson’s maintaining that Ms. Jackson was not injured and the fact that he had called an ambulance to the scene. The Commission noted Officer Gibson was required by NOPD rules to notify his sergeant of any injury and could not rely on the ambulance personnel to do so. Specifically, the Commission stated, “[sjome form of injury was at least claimed by the citizen at some point, and this was not properly reported, thus violating department rules.”

In addition, the Commission found that because Officer’s Gibson’s report listed only one ambulance as having been on the scene whereas his testimony was conflicting on this point, and the ambulance dispatch records showed there were two, Officer Gibson’s testimony was “disingenuous” and his report seemed calculated to deceive. The Commission concluded that the “incident report contained a number of factual errors and/or omissions of matters material to proper documentation of the incident.”

STANDARD OF REVIEW

The Commission has authority to “hear and decide” disciplinary cases, which includes the authority to modify (reduce) as well as to reverse or affirm a penalty. La. Const, art. X, § 12; Pope v. New Orleans Police Dept., 2004-1888, p. 5 (La. App. 4 Cir. 4/20/05), 903 So.2d 1, 4. The appointing authority is charged with the operation of its department, and it is within its discretion to discipline an employee for sufficient cause. The Commission is not charged with such discipline. The authority to reduce a penalty can only be exercised if there is insufficient cause for imposing the greater penalty. Pope, 2004-1888, pp. 5-6, 903 So.2d at 4.

|i)The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Cure v. Dept, of Police, 2007-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, citing Man-íale v. Dept, of Police, 2006-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767. The protection of civil service employees is only against firing (or other discipline) without cause. La. Const, art. X, § 12; Cornelius v. Dept, of Police, 2007-1257, p. 8 (La.App. 4 Cir. 3/19/08), 981 So.2d 720, 724, citing Fihlman v. New Orleans Police Dept, 2000-2360, p. 5 (La. App. 4 Cir. 10/31/01), 797 So.2d 783, 787.

The decision of the Commission is subject to review on any question of law or fact upon appeal to this court, and this court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const, art. X, § 12; Cure, 2007-0166, p. 2, 964 So.2d at 1094. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this court should not modify the Commission order unless it was arbitrary, capricious, or characterized by an abuse of discretion. Id. A decision of the Commission is “arbitrary and capricious” if there is no rational basis for the action taken by the Commission. Cure, 2007-0166, p. 2, 964 So.2d at 1095.

DISCUSSION

In his first assignment of error, Officer Gibson argues the Commission committed manifest error in concluding that it was Officer Gibson’s responsibility to prepare a use of force report in connection with the incident at issue.

| mThe record reflects that under the rules of the NOPD, an officer who utilizes force is responsible for notifying the appropriate supervisor within the chain of command to handle the use of force report. Once notification is received, the supervisor is responsible for preparation of the use of force report. The rules of the NOPD do not specify how an officer is to notify a supervisor of the use of force.

In this instance, Officer Gibson notified his supervisor of the situation. Sgt. Da-valier arrived on the scene and personally spoke with Ms. Jackson. Ms. Jackson explained what had happened to Sgt. Davalier, but also assured Sgt. Davalier that she was not injured. Sgt. Davalier also spoke to Officer Gibson and got his version of what had happened. There is no indication that Officer Gibson lied to his supervisor or omitted crucial facts. To the contrary, the evidence indicates that Sgt. Davalier was fully apprised of the situation. According to Sgt. Davalier’s own testimony, he himself then determined that a use of force report was not necessary.

Considering this evidence, we find no rational basis for the Commission’s finding that Officer Gibson violated the rules by failing to report the use of force to his supervisor. The record clearly reflects that Officer Gibson complied with his duty to inform his supervisor and that it was Sgt. Davalier’s decision not to report the use of force. Therefore we find the Commission’s decision to uphold the twenty-day suspension imposed for the failure to report the use of force to be arbitrary and capricious, and we reverse that decision.

In his second assignment of error, Officer Gibson argues the Commission committed manifest error in upholding a sixty-day suspension for his alleged untruthfulness.

In concluding that Officer Gibson was untruthful in his statements about Ms. Jackson’s injury, the Commission relied upon the ambulance and dispatch records. |nThe dispatch records show only that Officer Gibson requested an ambulance to the location for a leg injury, which is not inconsistent with Officer Gibson’s testimony that he did so only because Sgt. Davalier had ordered him to, not because he believed Ms. Jackson was injured. Sgt. Davalier confirmed Officer Gibson’s statement. The Commission’s decision mis-characterizes the evidence by concluding that Officer Gibson’s denial that any injury occurred was untruthful because his call for an ambulance “could only have arisen from a claim of injury.” Therefore, we find the Commission abused its discretion by determining that the evidence proved Officer Gibson was untruthful. Moreover, we do not agree with the Commission’s conclusion that Officer Gibson’s failure to mention in his report that there were two separate ambulances (rather than one) is proof of his intent to deceive. Because this distinction does not seem significant in light of the overall incident Officer Gibson was reporting, it seems just as likely that Officer Gibson either overlooked this detail when making his report, or, as is indicated by his conflicting testimony, was confused as to whether the second ambulance was the same or a different unit from the one that had responded initially. We therefore find the Commission’s decision to uphold the sixty-day suspension for untruthfulness to be manifestly erroneous in light of the record.

CONCLUSION

Accordingly, the decision of the Commission denying Officer Gibson’s appeal of his eighty-day suspension is reversed. Officer Gibson is entitled to all back pay and emoluments of office for those eighty days.

REVERSED.