Jonathan Mykulak v. New Orleans Police Department

JONATHAN MYKULAK * NO. 2022-CA-0578

VERSUS *
COURT OF APPEAL
NEW ORLEANS POLICE *
DEPARTMENT FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CITY CIVIL SERVICE COMMISSION, ORLEANS PARISH
NO. 9245
******
Judge Tiffany Gautier Chase
******
(Court composed of Judge Rosemary Ledet, Judge Tiffany Gautier Chase, Judge
Nakisha Ervin-Knott)

Eric J. Hessler
ATTORNEY AT LAW
320 N. Carrollton Avenue, Suite 202
New Orleans, LA 70119

COUNSEL FOR PLAINTIFF/APPELLANT

William R. H. Goforth
ASSISTANT CITY ATTORNEY
Corwin M. St. Raymond
ASSISTANT CITY ATTORNEY
Elizabeth Robins
DEPUTY CITY ATTORNEY
Donesia D. Turner
CITY ATTORNEY
City Hall - Room 5E03
New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED
MARCH 16, 2023

TGC
RML
NEK

This case involves an appeal from the Civil Service Commission of the City

of New Orleans (hereinafter “the Commission”). The Appointing Authority, the

New Orleans Police Department (hereinafter “NOPD”), imposed an eighty (80)

day suspension on Officer Jonathan Mykulak (hereinafter “Officer Mykulak”) for

violating NOPD Rule 2, Moral Conduct, Paragraph 6, Unauthorized Force. The

Commission issued a decision upholding the eighty (80) day suspension and from

the decision, Officer Mykulak appeals. After consideration of the record before

this Court and the applicable law, we affirm the decision of the Commission.

FACTS AND PROCEDURAL HISTORY

The discipline imposed originates from a traffic stop and subsequent arrest

that occurred on February 21, 2020. Officer Mykulak and his partner, Officer

Sasha Winchester (hereinafter “Officer Winchester”), conducted a traffic stop of a

vehicle that was driving erratically. The arrest was recorded on Officer

Winchester’s body worn camera (hereinafter “BWC”).1 Following the traffic stop,

the male suspect exited the vehicle and was placed next to the patrol unit. The

officers questioned the suspect and noticed a bag of narcotics inside the suspect’s

1 Officer Mykulak’s camera dislodged from his uniform during the incident and only the audio

portion of the incident was recorded.

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vehicle. When informed that he was being placed under arrest, the suspect ran

towards the driver’s side of his vehicle and reached under the seat. Officer

Mykulak struggled with the suspect inside the vehicle, struck the suspect in the

head and deployed his taser, hitting the suspect several times. During the struggle,

Officer Winchester entered the vehicle on the passenger side. Both officers

testified that they feared that the suspect was reaching for a gun. Officer Mykulak

eventually handcuffed the suspect and placed him face down on the ground. While

the suspect was on the ground, Officer Mykulak’s knee made contact with the

suspect’s back two separate times. During the second contact, Officer Mykulak’s

knee remained on the suspect’s back for approximately 10-14 seconds. Officer

Mykulak testified that he was out of breath, lost his balance and slipped, causing

him to fall on the suspect’s back. Immediately following the incident, Officer

Mykulak reported that he discharged his taser and admitted to striking the suspect

in the head several times. 2

NOPD INVESTIGATION

On April 14, 2020, Lieutenant Kevin Burns (hereinafter “Lt. Burns”) with

the NOPD’s Public Integrity Bureau (hereinafter “PIB”), received an e-mail from

an auditor within the NOPD’s Professional Standards and Accountability Bureau.3

The auditor advised Lt. Burns as follows:

“[I]t appears that the officer, Mykulak, used excessive force after the
CEW [taser] deployment and drive stun to get subject into
compliance. At the 4:49 minute mark of Winchester BWC, you see

2 Officer Mykulak reported the incident to his supervisor, Sgt. Gaines. Sgt. Gaines investigated

the incident by interviewing the suspect and reviewing BWCs of Officer Winchester and several
other officers at the scene. On March 26, 2020, Sgt. Gaines issued a report concluding that while
Officer Mykulak used profanity, which was unprofessional, he did not observe any violations of
federal, state or municipal laws.

3 In accordance with the Consent Decree between the City of New Orleans and the United States

Department of Justice, the Innovation Manager of Professional Standards and Accountability
Bureau is tasked with the following: conducting audits; reviewing the day to day performance of
NOPD officers; and ensuring that the NOPD adheres to the guidelines of the Consent Decree.
Police Performance Auditors randomly perform audits regarding stop and search arrests by the
NOPD.

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him put his knee onto the subject [sic] back with some force. Not sure
if this is considered for PSS review but thought it worth a look after
our conversation.”

On April 20, 2020, Lt. Burns initiated a formal investigation regarding the

information provided by the auditor. As part of the investigation, Lt. Burns viewed

Officer Winchester’s BWC and interviewed Officers Mykulak and Winchester. Lt.

Burns issued a report, wherein he concluded that Officer Mykulak’s actions were

inconsistent with the NOPD training he received and that he used force against a

person who was handcuffed, compliant and under control. Officer Mykulak was

charged with violating NOPD Rule 2, Moral Conduct, Paragraph 6, Unauthorized

Force.4

On January 20, 2021, the NOPD sent Officer Mykulak a suspension letter

notifying him of the finding that he violated NOPD Rule 2, Moral Conduct,

Paragraph 6, Unauthorized Force. The letter stated that the recommended penalty

was an eighty (80) day suspension. The letter further explained:

You violated this Rule when you delivered an intentional downward
knee strike to an individual that was compliant at the time. The
subject was cuffed to the rear in a prone position and a Code 4 had
been given. After the intentional knee strike, you remained across the
back of the subject’s neck. You then pulled the subject haphazardly
halfway to his feet and allowed him to fall to the ground without the
benefit of bracing for impact…Moreover, your conduct is contrary to
the standards as prescribed by Rule IX, Section 1, paragraph 1.1, of
the Rules of [sic] Civil Service Commission for the City of New
Orleans.5

4 NOPD Rule 2, Moral Conduct, Paragraph 6, Unauthorized Force provides:

Employees shall not use or direct unjustifiable physical abuse, violence, force or
intimidation against any person.
5 RULE IX DISCIPLINARY ACTIONS
MAINTAINING STANDARDS OF SERVICE

Section 1.
1.1 When an employee in the classified service is unable or unwilling to
perform the duties of his/her position in a satisfactory manner, or has committed
any act to the prejudice of the service, or has omitted to perform any act it was
his/her duty to perform, or otherwise has become subject to corrective action, the
appointing authority shall take action warranted by the circumstances to maintain
the standards of effective service. The action may include one or more of the
following: (a) termination from the service. (amended January 21, 1988, effective
February 1, 1988) (b) involuntary retirement. (adopted June 10, 1982) (c)

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Officer Mykulak appealed the suspension to the Commission.

A sufficiency hearing was held over the course of two days before a

Hearing Examiner. During the hearing, testimony was elicited from several

witnesses and the BWC footage was reviewed. The Hearing Examiner

acknowledged the relevant facts were not in dispute and framed the issue in terms

of whether Officer Mykulak acted reasonably and whether any facts should have

been considered in mitigation. The inaccuracies were recognized throughout the

Hearing Examiner’s Report, which provided in pertinent part:

“[t]he investigation had a lot of gaps and reflects some
uncertainty regarding the actions and intent of Mykulak
…the disciplinary letter itself was filled with
inaccuracies, for example it said that Mykulak had his
foot on the subject’s neck, a false and serious charge.
This is quite different from a knee on the back. Burns
also claimed that Mykulak picked up and dropped the
arrested man, also untrue.”

Ultimately, the Hearing Examiner concluded that the NOPD satisfied its burden of

proof, by a preponderance of evidence, that Officer Mykulak restrained a suspect

with handcuffs, placed him face down, stood over him, and pressed his knee

against the suspect’s back two times and removed it when asked by the suspect.

Concluding that Officer Mykulak’s lack of intent should have been considered as a

mitigating factor, the Hearing Examiner recommended a sixty (60) day suspension

rather than an eighty (80) day suspension.

reduction in pay within the pay grade for the employee’s classification, subject to
the provisions of Rule IV, Section 3. A reduction in pay includes involuntary time
away from work without pay, no matter how brief (e.g., involuntary leave without
pay). (amended September 27, 1990, amended February 17, 2014) (d) demotion
to any position of a lower classification that the employee is deemed by the
Appointing Authority and the Director to be competent to fill, accompanied by a
reduction in pay which is within the pay grade range for the lower classification,
subject to the provisions of Rule IV, Section 3. (amended September 27, 1990) (e)
suspension without pay not exceeding one hundred twenty (120) calendar days.
(f) fine. (g) letters of reprimand as defined in Rule I. (amended February 17,
2014) (Section 1.1. (a)-(f) and amended June 10, 1982, effective June 10, 1982,
Section 1.1 (c) and (g), amended February 17, 2014, effective March 1, 2014) 1.2
In every case of termination of employment of a regular employee, the appointing
authority shall conduct a pre-termination hearing as required by law and shall
notify the employee of the disciplinary action being recommended prior to taking
the action.

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The Commission reviewed the hearing transcripts, exhibits and the Hearing

Examiner’s Report and concluded that Officer Mykulak applied excessive pressure

to the suspect’s back while the suspect was in a prone and handcuffed position.

The Commission found that such unauthorized use of force impairs the efficient

operations of the NOPD and that the penalty of eighty (80) days was

commensurate with Officer Mykulak’s violation.

Officer Mykulak sought rehearing of the Commission’s decision arguing

that Lt. Burns’ inaccuracies were so grave as to constitute a violation of his due

process rights. He also complained that he was not provided with adequate notice

of the allegations against him. Specifically, he maintained that the January 20,

2021 suspension letter did not raise the issue of endangering a suspect with

positional asphyxia; thus, he was not afforded an opportunity to properly defend

himself. The motion for rehearing was denied with reasons. In its reasons, the

Commission recognized that the January 20, 2021 suspension letter contained

inaccuracies but pointed out that its conclusion was based solely on the finding that

Officer Mykulak used excessive pressure on a handcuffed suspect while the

suspect was in a prone position.

Officer Mykulak now appeals the Commission’s decision upholding the

eighty (80) day suspension to this Court.

GOVERNING LEGAL PRECEPTS AND STANDARD OF REVIEW

On appeal, the standard of review in a case from the Civil Service

Commission is established by the constitutional rule that the Commission’s

decision is subject to review on any question of law or fact. La. Const. art. X, § 12.

A multifaceted standard of appellate review applies. First, as in other civil matters,

deference must be given to the Commission’s factual findings, which should not be

disturbed unless manifestly erroneous or clearly wrong. Regis v. Dep’t of Police,

2012-1043, p. 5 (La.App. 4 Cir. 12/12/12), 107 So.3d 790, 793. Second, in

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evaluating the Commission’s determination as to whether the disciplinary action is

both based on legal cause and commensurate with the infraction, “the appellate

court should not modify the Commission’s decision unless it is arbitrary,

capricious, or characterized by an abuse of discretion.” Id. (Citation omitted).

Arbitrary or capricious means there is no rational basis for the action taken by the

Commission. Id.; Williams v. Dep’t of Police, 2008–0465, p. 7 (La.App. 4 Cir.

10/22/08), 996 So.2d 1142, 1146; Bankston v. Dep’t of Fire, 2009–1016, p. 7

(La.App. 4 Cir. 11/18/09), 26 So.3d 815, 820.

Classified civil service employees with permanent status may be disciplined

only for cause expressed in writing. La. Const., Art. X, § 8(A). New Orleans police

officers are included in the protection guaranteed by this provision. Walters v.

Dep’t of Police of City of New Orleans, 454 So.2d 106, 112 (La. 1984). “Legal

cause exists whenever an employee’s conduct impairs the efficiency of the public

service in which the employee is engaged.” Cittadino v. Dep’t of Police, 558 So.2d

1311, 1315 (La.App. 4 Cir. 1990) (citation omitted). Thus, the appointing authority

must prove, by a preponderance of the evidence, the occurrence of the complained

of activity and that the conduct did in fact impair the efficient and orderly

operation of the public service. Id.; See also Cure v. Dep’t of Police, 2007–0166, p.

2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094 (citing Marziale v. Dep’t of

Police, 2006–0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767)) (citation

omitted).

In applying these standards, an appellate court must make two

determinations: “(1) whether the appointing authority had good or lawful cause for

taking the disciplinary action, and (2) whether the punishment the appointing

authority imposed is commensurate with the offense.” Harris v. Dep’t of Fire,

2008–0514, p. 11 (La.App. 4 Cir. 7/16/08), 990 So.2d 54, 62 (citing Staehle v.

Department of Police, 1998–0216, p. 3 (La. App. 4 Cir. 11/18/98), 723 So.2d

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1031, 1033). To establish that it had cause, the appointing authority must prove

two factors: (i) that the complained of conduct occurred, and (ii) that the

complained of conduct impaired the efficiency of the Department. Harris, 2008–

0514, p. 11, 990 So.2d at 62.

DISCUSSION

The crux of Officer Mykulak’s argument is that the Commission erred in

upholding the eighty (80) day suspension as the NOPD failed to meet its burden of

proving a violation of NOPD Rule 2, Moral Conduct, Paragraph 6, Unauthorized

Force.6 He maintains that the initial complaint and investigation by Lt. Burns was

so inherently biased, flawed and devoid of credibility and evidence that it obviates

the decision of the Commission. Officer Mykulak’s assignments of error intertwine

both procedural and substantive arguments. Thus, for ease of discussion, we will

address the two procedural arguments - timeliness and notice - prior to discussion

of the merits of the substantive arguments - whether the Commission’s decision is

arbitrary and capricious.

PROCEDURAL CHALLENGES: TIMELINESS AND NOTICE

Officer Mykulak argues this case should be dismissed as a result of two

procedural errors: (1) the NOPD failed to comply with the timeliness requirement

set forth in La. R.S. 40:2531(B)(7)7 and (2) his due process rights were violated as

the NOPD failed to advise him of the specific fact that he was being accused of,

namely, placing a suspect who was in a prone position in danger of suffering

positional asphyxia.

6 Before the Commission, “the burden of proof on appeal, as to the facts, shall be on the

appointing authority.” La. Const. Art. X, § 8(A).
7 La. R.S. 40:2531(B)(7) provides, “[w]hen a formal, written complaint is made against any

police employee or law enforcement officer, the superintendent of state police or the chief of
police or his authorized representative shall initiate an investigation within fourteen days of the
date the complaint is made. Except as otherwise provided in this Paragraph, each investigation of
a police employee or law enforcement officer which is conducted under the provisions of this
Chapter shall be completed within sixty days.”

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TIMELINESS

Officer Mykulak maintains that the PIB investigation, initiated on April 20,

2020, is an unlawful attempt to circumvent the timeliness requirement of La. R.S.

40:2531(B)(7). Officer Mykulak also points out that an investigation into the

events of the February 20, 2020 arrest had been previously concluded on March

26, 2020. Although Officer Mykulak elicited witness testimony during the

sufficiency hearing regarding the timeliness of the investigation, we find that

neither a formal nor an oral motion was made. See Gant v. New Orleans Police

Dep’t, 2019-0640 (La.App. 4 Cir. 12/4/19), p. 8, 286 So.3d 524, 530 (counsel

provided testimony related to untimeliness of the investigation but failed to make a

formal motion on the record). Neither the Hearing Examiner’s Report nor the

Commission’s Opinion addresses the issue of timeliness. Accordingly, we decline

to consider this issue raised for the first time on appeal. See Gant, 2019-0640, p. 8,

286 So.3d at 530-31.

NOTICE

Officer Mykulak argues that the NOPD violated his due process rights by

failing to put him on notice regarding the claim of placing a suspect in danger of

suffering positional asphyxia. He also submits that the NOPD only informed him

that he was disciplined for unauthorized use of force by placing his knee in a

suspect’s back.

This Court has determined that an employer cannot subject a permanent

classified civil service employee to disciplinary action, unless given notice and

afforded an opportunity to respond to the charges against them. Rivet v. Dep’t of

Police, 2018-0229, pp. 11-12 (La.App. 4 Cir. 10/24/18), 258 So.3d 111, 120. The

appointing authority “is required to afford an employee notice of the ‘reasons’ for

disciplinary action.” Rivet, 2018-0229, p. 12, 258 So.3d at 120-121 (quoting Ellins

v. Dep’t of Health, 505 So.2d 74, 76 (La.App. 4th Cir. 1987) (citation omitted). An

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employee must be informed of the time, place, and nature of the alleged

misconduct in sufficient detail to allow the employee to prepare an adequate

defense. Rivet, 2018-0229, p. 12, 258 So.3d at 121 (citation omitted).

On January 21, 2021, Officer Mykulak was informed, in a disciplinary letter,

of his eighty (80) day suspension resulting from a finding of a violation of NOPD

Rule 2, Moral Conduct, Paragraph 6, Unauthorized Force. Specifically, the letter

states that Officer Mykulak violated the rule when he delivered an intentional

downward knee strike to a handcuffed and compliant individual during an arrest on

February 21, 2020. Although the words “positional asphyxiation” are not contained

in the letter, the letter clearly describes the complained of activity. Further, Officer

Mykulak presented testimony at the hearing that he did not use unauthorized force

but rather slipped. He argued that the knee strike into the suspect’s back was not

intentional. Thus, the disciplinary letter and defense presented by Officer Mykulak

at the hearing and before the Commission suggests that he was thoroughly aware

of the charges levied against him. We therefore find that the NOPD gave adequate

written notice to Officer Mykulak regarding his violation of the rule.

WHETHER THE DECISION OF THE COMMISSION WAS
ARBITRARY AND CAPRICIOUS

Officer Mykulak challenges the Commission’s decision to uphold his eighty

(80) day suspension arguing that the NOPD’s investigation of the complaint was

biased, flawed, and devoid of credibility and evidence. We will first address his

contention regarding the complaint and investigation before considering the

overarching issue of whether the Commission’s decision was arbitrary and

capricious.

The Hearing Examiner’s Report indicates that prior to the sufficiency

hearing, Officer Mykulak requested an investigation into Lt. Burns involvement in

the complaint and the investigation. The NOPD filed a motion to quash, which

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was granted, leaving open the opportunity for the motion to quash to be re-urged if

relevant facts related to it were adduced. Although the January 20, 2021 letter

contains several inaccuracies, these inaccuracies were considered by both the

Hearing Examiner and the Commission. As discussed in greater detail below, the

Commission focused its review of the imposition of the discipline on the narrow

issue of whether Officer Mykulak violated the unauthorized force rule. Our review

of the Commission’s Report confirms that the Commission upheld its duty to

consider the facts independently from those presented by the NOPD and focused

its determination on whether the NOPD had good and lawful cause for taking the

disciplinary action and whether the punishment imposed was commensurate with

the infraction. See, e.g., Walters, 454 So.2d 106, 112 (La. 1984).

We now turn to the overarching issue of whether the Commission’s decision

to uphold the eighty (80) day suspension was arbitrary and capricious. In Hardy v.

Juvenile Justice Intervention Ctr., 2022-0030, p. 5-7 (La.App. 4 Cir. 6/16/22), 343

So.3d 288, 293–94, we articulated the following foundational principle: the

Commission’s “final decision is ‘subject to review on any question of law or fact

upon appeal to the court of appeal wherein the commission is located.’” La. Const.

Art. X, § 12(A). An appeal from a final decision of the Commission, thus, is to this

Court. In an appeal from the Commission, this Court must engage in a multifaceted

review, which the Louisiana Supreme Court has described as follows:

Initially, deference should be given to the factual conclusions of the
civil service commission. A reviewing court should apply the clearly
wrong or manifest error rule prescribed generally for appellate review.
Then, the court must evaluate the commission’s imposition of a
particular disciplinary action to determine if it is both based on legal
cause and is commensurate with the infraction; the court should not
modify the commission's order unless it is arbitrary, capricious, or
characterized by abuse of discretion. “Arbitrary or capricious” means
the absence of a rational basis for the action taken; “abuse of
discretion” generally results from a conclusion reached capriciously or
in an arbitrary manner.

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Mathieu v. New Orleans Pub. Library, 2009-2746, pp. 5-6 (La. 10/19/10),

50 So.3d 1259, 1262-63 (internal citations omitted).

The Commission found that Officer Mykulak used unauthorized force when

he placed his knee on the back of the suspect who was handcuffed on the ground

and in a prone position. Specifically, the Commission determined that Officer

Mykulak did not use the appropriate amount of force in light of the circumstances.

We find these conclusions supported by the evidence. Although Officer Mykulak

maintains that he slipped and was out of breath from his struggles with the suspect,

he does not refute that his knee made contact with the suspect’s back. Such

conduct diminishes the public’s confidence in the NOPD. The BWC footage

supports this fact.

As to the penalty imposed, the Commission determined that the NOPD

imposed the penalty for a level four use of force under the NOPD’s disciplinary

matrix. The eight (80) day suspension is commensurate with the violation

committed by Officer Mykulak.

The Commission weighed the evidence and found that Officer Mykulak

used excessive force when delivering pressure to a compliant and handcuffed

suspect during the February 21, 2020 arrest. This Court must afford deference to

the factual conclusions of the Commission. See Stephens v. New Orleans Police

Dep’t, 2019-0641, pp. 7-8 (La.App. 4 Cir. 12/4/19), 286 So.3d 519, 524. The

Commission determined that the evidence submitted by the NOPD was sufficient

to satisfy its burden of proof and that the penalty was commensurate with the

NOPD’s disciplinary matrix. Thus, we will not disturb the conclusions of the

Commission as those conclusions are not contrary to the evidence.

CONCLUSION

This Court will not modify a decision of the Commission absent a finding

that the Commission’s decision is clearly or manifestly erroneous. See Stephens,

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2019-0641, p. 8, 286 So.3d at 524. The record before this Court does not warrant

such a finding. Accordingly, we affirm the Commission’s decision to uphold

Officer Mykulak’s eighty (80) day suspension.

DECREE

For the aforementioned reasons, we affirm the Commission’s decision to

uphold Officer Mykulak’s suspension for violating NOPD Rule 2, Moral Conduct,

Paragraph 6, Unauthorized Force.

AFFIRMED

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