FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 8230 C\W 8402
J. Hessler COUNSEL FOR PLAINTIFF/APPELLANT
Elizabeth Robins ASSISTANT CITY ATTORNEY Isaka Rachell
Williams ASSISTANT CITY ATTORNEY Churita H. Hansell DEPUTY
CITY ATTORNEY Rebecca H. Dietz CITY ATTORNEY COUNSEL FOR
composed of Judge Paula A. Brown, Judge Tiffany G. Chase,
Judge Marion F. Edwards, Pro Tempore
F. Edwards, Pro Tempore Judge.
Tracy Fulton appeals a decision of the New Orleans Civil
Service Commission (the Commission) that affirmed the
decision of the New Orleans Police Department (NOPD) to
terminate his employment as a result of an altercation
between him and a citizen prompted by an automobile accident.
Officer Fulton, a twenty-year veteran of the NOPD with
permanent status as a classified employee, appealed his
termination to the Commission pursuant to Art. X § 8(A)
of the Louisiana Constitution and Civil Service Commission
Rule II § 4.1. After a three day hearing, the Commission
deemed the dismissal appropriate. We affirm that decision for
reasons that follow.
September 4, 2013, while off-duty and driving his personal
vehicle, Officer Fulton was involved in an automobile
accident with E.C. at the intersection of Earhart Boulevard
and Monroe Street. Officer Fulton was stopped at a red light
when E.C., who was driving a pickup truck, attempted to enter
the turning lane. E.C.'s vehicle jumped the curb, and
struck the rear fender of the Fulton vehicle. Fulton got out
of his car to inspect the damage and went over to the other
vehicle. Officer Fulton began yelling at E.C. and his
passengers, and attempted to open the driver door which was
locked. Fulton then opened the rear door. A twelve-year-old
child in the back seat of E.C's vehicle and two other
passengers were frightened and screamed at E.C. to drive off.
Officer Fulton slammed the car door and E.C. drove to his
home about five blocks away. Fulton got into his car and
followed E.C. while calling police to report a hit and run
E.C. parked in front of his home, Officer Fulton parked
behind the vehicle and angrily confronted E.C. Fulton was
still on the telephone with police at this point, and some of
Officer Fulton's angry confrontation was overheard by the
officer taking the report.
argument escalated into a physical fight. According to the
evidence presented at the hearing, E.C. kicked at Officer
Fulton and Fulton punched E.C., who stumbled to his truck and
got a machete. Fulton went to his vehicle and retrieved his
service weapon. As a result of the fight, E.C. was injured
and was taken by paramedics to the hospital. The hospital
report shows that E.C. was diagnosed with a fractured nose,
dislocated jaw, headache and concussion syndrome.
matter was investigated by Sergeant Omar Diaz, a twenty-one
year veteran of NOPD in the Police Integrity Bureau Criminal
Section. Sergeant Diaz testified at the hearing. He stated
that he was called to the scene of the altercation in the
8500 block of Forchey Street and interviewed several
witnesses including E.C. and his two passengers. Sergeant
Diaz concluded that E.C.'s pickup truck hit the rear of
Fulton's auto by paint markings and scratches to the
vehicles. The sergeant also listened to an audio recording of
a call between Officer Fulton and the Second District Police
Station. In that recording, Officer Fulton is heard saying
"I wish you f ------ g would" in what appeared to
be a threat. Although it appeared both Officer Fulton and
E.C. had weapons, it was not apparent which individual was
the first to retrieve that weapon.
result of the incident, Officer Fulton was arrested and
charged with second degree battery while off-duty. NOPD
issued an emergency suspension and ultimately terminated
Officer Fulton's employment. Fulton appealed the
termination to the Civil Service Commission. Prior to the
Commission hearing, the parties stipulated that Officer
Fulton was tried on the second degree battery charge and
found not guilty by a jury.
we note that Fulton's brief does contain a statement of
jurisdiction, an assignment of errors, or a list of issues
presented for our review as required by Louisiana Uniform
Rules of Courts of Appeal, Rule 2-12.4. NOPD has noted these
deficiencies in its brief and urged dismissal of the appeal.
Fulton has filed a reply brief acknowledging these defects
and attempted to correct them. Despite Rule 2-12.4,
assignments of error are not necessary in an
appeal. Appellate courts have the authority to
consider an issue even in the absence of an assignment of
error. Accordingly, we will consider the merits
of this appeal.
appointing authority, which is the employer of an employee in
the classified civil service, is charged with the operation
of its department, and it is within its discretion to
discipline an employee for sufficient cause. New Orleans
police officers are included in the protection guaranteed by
this provision. However, the ...