Opinion
No. C3-97-1555.
Filed January 27, 1998.
Appeal from the District Court, Hennepin County, File No. 966740.
Karla R. Wahl, Karla R. Wahl, P.A., (for appellant Rasicot).
John C. Swanson, (for respondent City of Minneapolis).
Considered and decided by Harten, Presiding Judge, Huspeni, Judge, and Klaphake, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant, a veteran, challenges the Minneapolis Civil Service Commission's decision to discharge him from the police department for excessive use of force. Because substantial evidence supports this discharge and the alleged extenuating circumstances do not justify its modification, we affirm.
FACTS
Appellant Donald Rasicot, a veteran, worked as a police officer for respondent City of Minneapolis for seven years. He was discharged because of several incidents related to excessive use of force, the last of which led to the investigation that resulted in his discharge.
In that incident, appellant and Officer Michael Bakke, a rookie, were called to an apartment because of a domestic dispute. Upon entering the apartment, they saw several men, and a juvenile woman who had allegedly been abused, and learned that the alleged abuser was no longer in the apartment. As the officers were leaving with the juvenile woman, they were asked to remove one of the men, Marguarito Mal-Reyes, from the apartment. Appellant told Mal-Reyes to leave two or three times. After Mal-Reyes left the apartment and entered the hall outside it, an altercation occurred during which appellant struck Mal-Reyes repeatedly with his police flashlight. The altercation ended with Mal-Reyes backed up against the wall in a corner with his hands down and appellant delivering a final blow to Mal-Reyes's head. Bakke assisted appellant with handcuffing Mal-Reyes and taking him to a squad car. Mal-Reyes was treated for facial lacerations and contusions requiring sutures.
Sergeant Ronald Christianson, the shift supervisor who went to the scene after the incident, filed a complaint against appellant, based on Bakke's report that appellant's actions had been uncalled for and on a conversation with appellant in which he said he should not have used that degree of force on Mal-Reyes. Appellant denies the conversation.
The Internal Affairs Department (IAD) investigation of the incident was suspended during appellant's involvement with a criminal charge for second-degree assault arising out of this incident. After a jury acquitted him, the IAD investigation resumed. The investigator recommended that a violation of rule 5-303, prohibiting the unjustified use of force, be entered against appellant for striking Mal-Reyes in the head with a flashlight when Mal-Reyes was no longer in a position threatening to appellant. This violation (in conjunction with four previous incidents in which appellant had been disciplined for excessive use of force or failing to report use of force) caused the deputy chief to recommend appellant's termination. At appellant's request, the department also reviewed the transcript of his criminal trial. The chief of police then recommended appellant's discharge.
Appellant sought a hearing pursuant to the Veterans Preference Act. Following the hearing, the administrative law judge (ALJ) recommended that the discharge be reversed. Respondent filed exceptions to the ALJ's report, and these exceptions were adopted by the Minneapolis Civil Service Commission, which did not follow the ALJ's recommendation and upheld the discharge. Appellant's challenge to the commission's decision in district court was unsuccessful.
DECISION
Standard of Review
When a trial court "is itself acting as an appellate tribunal with respect to the agency decision, this court will independently review the agency's record." In re Hutchinson , 440 N.W.2d 171, 175 (Minn.App. 1989) (citations omitted), review denied (Minn. Aug. 9, 1989). When the agency has made its decision in a quasi-judicial capacity, an appellate court applies the substantial evidence test on review. In re Signal Delivery Serv ., 288 N.W.2d 707, 710 (Minn. 1980).
The substantial evidence test requires a reviewing court to evaluate the evidence relied upon by the agency in view of the entire record as submitted. If an administrative agency engages in reasoned decisionmaking, the court will affirm, even though it may have reached a different conclusion had it been the factfinder.
Cable Communications Bd. v. Nor-west Cable Communications Partnership, 356 N.W.2d 658, 668-69 (Minn. 1984) (citations omitted).
Substantial evidence has been defined as 1. Such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; 2. More than a scintilla of evidence; 3. More than some evidence; 4. More than any evidence; and 5. Evidence considered in its entirety. Id. at 668.
In Hutchinson , as here, the commission rejected an ALJ's findings and recommendation. Hutchinson concerned a simple, factual determination: Had the appellant given a drug or caused a drug to be given to her racehorse within 48 hours of a race? While appellant said she had not done so, expert testimony and "undisputed facts in evidence" established the presence of the drug in the horse immediately after the race. Id . at 177. The ALJ found the expert testimony credible, but was unpersuaded because use of the drug was "so new and so unusual in horses." Id . Because the test used by the experts was heavily relied on by state regulators, the commission rejected the ALJ's finding that appellant's horse had not received the drug. Id . In affirming the commission's decision, this court determined that the decision "was properly based on the inferences [the commission] drew from all of the documentary and testimonial evidence before it." Id.
Appellant argues that the substantial evidence test is not the appropriate standard of review, relying on a statement in Hutchinson that when a commission's conclusions differ from those of an ALJ, this court reviews the agency's findings more critically. Id . at 176. Appellant's reliance is misplaced. Hutchinson clearly upholds the substantial evidence test for review of a commission's decision. Id . at 177. See also Jenson v. Civil Service Commission , 268 Minn. 536, 538-39, 130 N.W.2d 143, 146 (1964) (upholding the substantial evidence test in the review of another veteran's discharge by the Minneapolis Civil Service Commission).
We note also that the commission complied with Beaty v. Minnesota Bd. of Teaching , 354 N.W.2d 466, 472 (Minn.App. 1984) (requiring a commission to explain its reasons for rejecting or significantly deviating from a hearing examiner's findings on the record). It issued a lengthy memorandum explaining each of its deviations from the ALJ's report.
The Veterans Preference Act states that honorably discharged veterans may be terminated from public employment only for incompetence or misconduct. Minn. Stat. § 197.46 (1996). In evaluating a veteran's termination, the Civil Service Commission asks two questions: (1) did the employer act reasonably, and (2) are there extenuating circumstances that would justify modifying a disciplinary sanction. In re Schrader , 394 N.W.2d 796, 801-02 (Minn. 1986).
Does substantial evidence support the reasonableness of the discharge?
Minneapolis Police Department rule 5-303 provides that:
Officers shall use the least amount of force reasonably necessary to accomplish the intended objective without impairing the safety of themselves or others.
Rule 5-304 provides that:
Officers are authorized to use department-approved non-deadly weapons and force techniques * * * [t]o protect themselves or another from physical harm * * *.
Rule 5-306 provides that:
The use of deadly force * * * is justified only when reasonably necessary: 1) To protect the peace officer or others from apparent death or great bodily harm.
Rule 5-324 provides that:
Officers are expected to be aware of the fact that a blow to certain parts of the human body can cause immediate death, or grievous injury that can lead to permanent physical or mental incapacity or eventual death. Areas susceptible to death or possible severe injury are the head, neck, throat, chest (in the vicinity of the heart) and arm pit. Unless deadly force is justified, officers should avoid striking any of the above described areas.
Appellant struck the victim repeatedly in the head with a police flashlight. The chief of police testified that discharge was the appropriate sanction for violation of these rules and gave an additional reason for discharging appellant.
[P]hysical assault on citizens * * * [is] a significant issue and requires significant discipline. * * * And I mean in a nutshell, assaulting citizens to me, the person really shouldn't be a police officer. * * *
* * * *
[T]here are three primary things that police officers don't do, and that is they don't steal, they don't do drugs, and they don't assault citizens. * * * [T]hose three are my primary high level disciplinary areas.
* * * *
[In appellant's case] it appeared clear to me * * * that continued employment was a liability for the City.
This testimony supports the commission's decision.
The commission's decision was also based on the testimony of five other police officers, the IAD file of this incident, and appellant's past disciplinary record, which included one other sustained incident of excessive use of force and three incidents of failure to report the use of force between 1988 and 1993.
Appellant urges this court to disregard, as did the ALJ, the testimony of Officer Bakke, the only witness to the incident. Officer Bakke testified that after striking a number of blows to the victim's head,
Rasicot stopped swinging. [The victim] was leaning back against the door. At this time I began to walk or take my last step toward [the victim]. I thought we were going to grab him and handcuff him. That's when I saw Rasicot, he just swung with his left hand and hit him one more time in the head — side of the head with his flashlight.
* * * *
[The victim's] knees were slightly bent and the door was basically holding him up.
* * * *
[H]is arms were down by his side. His hands were like right in front of him kind of.
The ALJ discredited this testimony on the ground that Bakke was inexperienced and misinterpreted the altercation as an unprovoked beating. The commission determined the testimony to be credible because Bakke had completed training at the Minneapolis Police Officers' Recruit School, a program in law enforcement skills training, and a four-year degree program in criminal justice, and because the testimony about the final blow concerned an event Bakke could see clearly and about which there was no misunderstanding. While the ALJ found appellant's testimony to be "clear, convincing and consistent * * *," the commission noted its inconsistencies and further noted that even if appellant's version of the victim's attempt to choke him were credited, "we are still left with the matter of the final blow for which we can find no justification."
The commission also found the ALJ to be inconsistent in discrediting some of the victim's testimony because the victim was under the influence of alcohol when the altercation occurred, yet crediting those portions of the testimony that supported appellant's story. Finally, the commission held that the ALJ erred in discrediting the testimony of other police officers, including the sergeant in charge of the shift, the police chief, and the deputy chief. The commission relied particularly on the findings of the deputy chief, who analyzed appellant's prior discipline for the use of force and noted similarities to the current incident, "[s]uch as evidence of increased use of force in the presence of rookies and allegations of use of a flashlight as a weapon."
The commission's determination that respondent reasonably discharged appellant is supported by substantial evidence.
B. Was the commission's determination that there are no extenuating circumstances supported by substantial evidence?
The commission rejected the three "extenuating circumstances" cited by the ALJ: (1) the more lenient discipline for excessive use of force applied by the current police chief's predecessor, (2) the commendations received by appellant while he was a police officer, and (3) appellant's improved job performance since treatment for chemical dependency. In regard to the first circumstance, the commission held that the current police chief is not bound by the disciplinary practices of his predecessor. In regard to the second and third circumstances, the commission held that neither appellant's achievements as an officer nor his improvement after chemical dependency treatment justifies reversing his discharge. See City of Minneapolis v. Moe , 450 N.W.2d 367, 368 (Minn.App. 1990) (upholding the discharge of "an exemplary officer" for possession of cocaine).
[E]fforts to rehabilitate are irrelevant to the issue of good cause to discharge. The issue here is the integrity of the police department and under our scope of review we must affirm [the discharge]. Id. at 370.
The commission did not ignore the extenuating circumstances cited by the ALJ and by appellant, but after considering them found that "the overwhelming body of evidence (testimony of [respondent's] witnesses and the IAD findings) outweigh[s] the veteran's arguments in his favor." There is no basis for reversing that decision.