Opinion
No. 3977.
December 7, 1970.
Ralph L. Barnett, Gretna, for plaintiff-appellant.
Alvin J. Liska, City Atty. and Maurice B. Friedman, Asst. City Atty., for Leo W. Rousselle, defendant-appellee.
Before SAMUEL, REDMANN and LeSUEUR, JJ.
Appellant, a patrolman in the New Orleans Police Department with Civil Service status, was suspended and subsequently dismissed from his position for violating Articles 27, 28 and 30 of the Rules for the Administration of the Department of Police relative to standard of ethics, adherence to law, and truthfulness. He had taken this appeal from a decree of the New Orleans Civil Service Commission dismissing his appeal to that authority. The defendant filed a motion to dismiss the appeal and we have before us at this time both the motion to dismiss and the merits.
ON THE MOTION TO DISMISS
The motion to dismiss is based solely on the argument that appellant failed to perfect his appeal by failing to file the appeal bond required by Rule XVI, § 4 of the Uniform Rules, Courts of Appeal, which reads:
"Every appellant shall file with his application for an appeal a bond for costs in the sum of one hundred dollars in favor of the Commission."
Defendant concedes appellant's application for this appeal was timely filed. However, it contends: In lieu of an appeal bond appellant gave a personal $100 check; subsequently appellant's counsel was informed by the reporter for the Commission that the check was unacceptable under the rules; counsel then advised he would post a $100 cash bond; and the $100 cash bond never was posted. The record does not reflect all of these argued facts, nor does it contain any showing that the check given in lieu of the bond was not timely filed. Even accepting the defendant's factual contentions, and assuming the check was given timely because there is no evidence in the record to the contrary, we cannot dismiss the appeal.
In view of the fact that the check (which constituted conditional payment) was accepted by the Commission in lieu of the bond, and because it is obvious that a posting of $100 in cash would have been sufficient to meet the bond requirement, in the absence of a showing that the check could not be cashed and converted into money, and there is no such showing, the motion to dismiss must be denied.
ON THE MERITS
The alleged misconduct which resulted in appellant's suspension and dismissal took place while he was dressed, in whole or in part, in his police uniform. His defense to the charges was an alibi, i. e., he could not have committed the acts involved because he was at other places during the time those acts took place.
Further discussion of the charges themselves is unnecessary for the reason that in this court appellant does not question the fact that the alleged acts, if committed by him, constitute sufficient violation of the Department's rules so as to warrant his suspension and dismissal; here his only contention is factual, that the testimony given by his witnesses was sufficient to establish his alibi and thus required a decision in his favor.
In this connection we note that our review of the Commission's ruling is limited to questions of law by LSA-Const. Art. 14, § 15(O)(1), which provides, inter alia:
"The decision of the appropriate Civil Service Commission shall be final on the facts, but an appeal shall be granted * * * on any question of law * *."
Several witnesses testified the appellant had committed the acts with which he was charged and several witnesses, called by appellant, testified he had been at places other than the one at which the alleged offense occurred during the time those acts took place. The testimony against appellant, if believed, is amply sufficient to establish the fact that he did commit the acts in question. In effect, the Commission simply found the testimony of the complaining witnesses was more credible than the testimony produced by the appellant to establish his alibi; the Commission believed the former and rejected the latter. Quite clearly, under these circumstances we have no authority to disturb the Commission's finding of fact.
For the reasons assigned, the decree appealed from is affirmed.
Affirmed.