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Abbott v. New Orleans Police Dep't

Court of Appeals of Louisiana, Fourth Circuit

February 11, 2015

DAVID ABBOTT, JAMES NEYREY, REGINALD SMITH & ANDREW PALUMBO
v.
NEW ORLEANS POLICE DEPARTMENT

Page 192

APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS. NO. 8052 C\W 8054, 8055, 8061, 8068, 8069.

Donovan A. Livaccari, LIVACCARI VILLARRUBIA LEMMON, LLC, New Orleans, LA, COUNSEL FOR PLAINTIFFS/APPELLANTS.

Elizabeth S. Robins, Assistant City Attorney, Shawn Lindsay, Assistant City Attorney, Cherrell R. Simms, Senior Chief Deputy City Attorney, Sharonda R. Williams, City Attorney, CITY OF NEW ORLEANS, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLEE.

(Court composed of Judge Dennis R. Bagneris, Sr., Judge Paul A. Bonin, Judge Rosemary Ledet).

OPINION

Rosemary Ledet, J.

Page 193

[2014-0993 La.App. 4 Cir. 1] This is a civil service commission case. Officers James Neyrey, David Abbott, and Reginald Smith (the " Officers" ) appeal their suspensions from the New Orleans Police Department (" NOPD" ) for violating the Appointing Authority's--the NOPD's--internal regulation prohibiting receiving cash payments, including checks made payable to cash, for paid details. The Officers were all disciplined for accepting payment in the form of a check made payable to cash for motorcycle escorts that they worked. In the Officers' consolidated appeal,[1] the Civil Service Commission of the City of New Orleans (" CSC" ) determined that the Appointing Authority did not abuse its discretion in finding that the Officers violated the internal regulation prohibiting accepting cash payments for paid details.

On appeal, the Officers assert that the CSC erred in two respects. First, they contend that the CSC erred because the NOPD did not prove a real and substantial [2014-0993 La.App. 4 Cir. 2] relationship between the alleged infractions and an adverse impact on the efficient operation of the public service. Second, they contend that the CSC erred by not finding that the NOPD's request for extensions pursuant to La. R.S. 40:2531(B)(7) and Civil Service Rule IX § 1.4 was untimely made, resulting in an administrative investigation exceeding the

Page 194

sixty days allowed by La. R.S. 40:2531(B)(7). They thus contend that the resulting discipline should have been declared absolutely null and dismissed pursuant to La. R.S. 40:2531(C).

Given the Officers knew or should have known about the internal regulation prohibiting accepting cash payment for paid details coupled with their acknowledged failure to adhere to the regulation, we affirm the CSC's finding that the Appointing Authority acted properly and within its discretion.

FACTUAL AND PROCEDURAL BACKGROUND

At the time of the actions that form the basis for the complaints, the Officers were employed by the NOPD as police officers with permanent status and were assigned to the NOPD's Traffic Division. On July 19, 2011, and August 25, 2011, the NOPD's Traffic Division received requests from Blaine Kern, Inc. (" Blaine Kern" ) for motorcycle escorts to move parade floats. Officer Neyrey worked both paid details; Officers Abbott and Smith worked only the August 25, 2011 paid detail. The Officers were all paid by checks, each in the amount of $100, made payable to cash. The Officers each endorsed their check by signing their name on the back, and each of the Officers deposited their check into their respective bank account.

[2014-0993 La.App. 4 Cir. 3] On September 7, 2011, NOPD Superintendent Ronal Serpas sent an email addressed to " All Traffic Officers & Traffic Supervisors," which read as follows:

In August 2010, Dept. members were notified via General Order 828, effective September 1, 2010, that under no circumstances should an employee solicit or accept cash payment for any work performed in a paid detail capacity.[2] On May 16, 2011, Dept. members were reminded of the prohibition against cash payments for paid details and the prohibition clarified that checks made payable to cash was interpreted as a form of cash payment and prohibited under policy. Further, it was explained that checks in payment for paid details should only be made payable using the legal name of the member working the paid detail.[3]

The email posed five questions regarding compliance with the above-referenced paid detail regulation and instructed the recipients to respond by the following day.

On October 21, 2011, a DI-1 form--labeled " Initiation of a Formal Disciplinary Investigation" --was prepared for each of the two Blaine Kern paid details at issue--July 19, 2011 (Public Integrity Bureau (" PIB" ) No. 2011-1194-R); and August 25, 2011, (PIB No. 2011-1198-R). On November 2, 2011, the NOPD requested extensions of time to conduct its investigations in these two matters pursuant to La. R.S. 40:2531 (B)(7), which the CSC subsequently granted.

Page 195

Sergeant Darryl Watson, who was assigned to the PIB, conducted the investigations of these two matters. The PIB determined that on August 25, 2011 [2014-0993 La.App. 4 Cir. 4] (PIB No. 2011-1198-R) the Officers worked a paid detail for Blaine Kern for which the Officers received as payment a check made payable to cash. The PIB further determined that on July 19, 2011 (PIB No. 2011-1194-R) Officer Neyrey worked another paid detail for Blaine Kern for which he received as payment a check made payable to cash. During the investigations, the Officers admitted that they understood the departmental rules and regulations prohibiting cash payments or checks made to cash for paid details. The Officers also admitted that they accepted the checks from Blaine Kern, cashed the checks made payable to cash, and received payment.

In December 2011, Sergeant Watson issued to each of the Officers a " Notice to Accused Law Enforcement Officer Under Investigation of a Pre-Disciplinary Hearing or a Determination of an Unfounded or Unsustained Complaint" (" Notice to Accused" ).[4] Each Notice to Accused included the following language:

The internal disciplinary investigation into the allegation(s) made against you . . . on October [2]1, 2011,[5] has been completed. The alleged violation(s) and the investigator's recommended disposition(s) are written below. If the disposition of any alleged violation is SUSTAINED, your disciplinary hearing date will be February 15, 2012. If there is a determination of an Unfounded or Unsustained complaint no disciplinary hearing will be conducted.

As to each of the Officers, the investigator's recommended disposition was that there was a sustained violation of Rule 4: Performance of Duty, Paragraph 2--Instructions from an Authoritative Source to wit Chapter 22.8, Paid Details,[6] and [2014-0993 La.App. 4 Cir. 5] General Order 828. No hearing was held on February 15, 2012, the date listed in the Notice to Accused.

On April 23, 2012, Deputy Superintendent Darryl Albert, with the Field Operations Bureau, issued to each of the Officers a " Disciplinary Hearing Notification," informing them of the scheduled hearing date of May 8, 2012.

On May 8, 2012, a hearing was held before Deputy Superintendent Albert. Following the hearing, Deputy Superintendent Albert found, as to each of the Officers, there was a sustained violation. As to Officers Abbott and Smith, Deputy Superintendent Albert recommended a two-day suspension; as to Officer Neyrey he

Page 196

recommended a one-day suspension for PIB No. 2011-1194 and a ten-day suspension for PIB No. 2011-1198.

On August 13, 2012, Superintendent Serpas issued a disciplinary letter to each of the Officers, finalizing the disciplinary actions. Superintendent Serpas concurred in Deputy Superintendent Albert's finding of sustained violations and adopted his recommended penalties. The Officers then sought review with the CSC.

[2014-0993 La.App. 4 Cir. 6] On April 11, 2013, a hearing was held before the CSC on the Officers' consolidated appeal. By agreement of the parties, the hearing was conducted primarily through stipulations and the introduction of documents. As the CSC noted in its decision, the parties agreed to the following four stipulations:

1. If Assistant Superintendent Darryl Albert had testified, his testimony would be the same as his testimony in the matter of David Tregre v. Dept. of Police, Docket No. 8030.[7]
2. The Appellants [the Officers] were paid with checks made payable to cash for serving as motorcycle escorts. The checks were endorsed by the [O]fficers and ...

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