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APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS. NO. 7836. (ON REMAND FROM THE LOUISIANA SUPREME COURT).
Barry W. Ashe, Peter M. Thomson, Samantha P. Griffin, Stone, Pigman, Walther, Wittmann L.L.C., New Orleans, Louisiana -And- Peter M. Thomson, Jacques P. Degruy, Fowler Rodriguez Flint Gray, McCoy & Sullivan, L.L.P., New Orleans, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.
Shawn Lindsay, Assistant City Attorney, Elizabeth Robins, Assistant City Attorney, Sharonda R. Williams, City Attorney, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLEE.
(Court composed of Judge Edwin A. Lombard, Judge Paul A. Bonin, Judge Joy Cossich Lobrano). LOMBARD, J., CONCURS WITH REASONS. LOBRANO, J., CONCURS IN THE RESULT.
[13-0348 La.App. 4 Cir. 1] PAUL A. BONIN, JUDGE
This civil service appeal is before us on remand from the Louisiana Supreme Court.
Thomas McMasters, a classified employee with the New Orleans Police Department, appeals the decision of the New Orleans Civil Service Commission which upheld the appointing authority's dismissal of him as a police officer from the NOPD. The Commission found that the appointing authority proved the charge that Mr. McMasters had falsely imprisoned Kyana Boykins on the charge of " prostitution loitering," that there was cause for discipline, and that termination of Mr. McMasters's employment was a punishment commensurate with his misconduct.
We have reviewed the evidence before the Commission and conclude that its findings of fact and inferences from those facts are not clearly wrong and are reasonable regarding Mr. McMasters's conduct with respect to Ms. Boykins. We have detected no error of law in the Commission's application of the City's ordinance on prostitution loitering or the principles applicable to " probable cause" [13-0348 La.App. 4 Cir. 2] for arrest, detention, and imprisonment. And finally we conclude that there was no abuse of the Commission's considerable discretion in upholding the penalty of Mr. McMasters's dismissal from the police force.
We accordingly affirm the Commission's decision. We explain our decision in greater detail below.
We begin by briefly setting out the procedural history of the investigation of Mr. McMasters, the departmental hearing which resulted in the superintendent of police, Ronal Serpas, terminating Mr. McMasters from the classified employment, the proceedings before the Commission,
and the course of the judicial review proceedings resulting in the remand to us. We then briefly summarize Mr. McMasters's arguments at this point.
This disciplinary proceeding began on November 23, 2009, when Kyana Boykins lodged a complaint against Mr. McMasters, her arresting officer, alleging that she had been falsely imprisoned for prostitution in the early morning hours of November 8, 2009. In response to the complaint, the NOPD initiated a formal DI--1 investigation into the allegation.
[13-0348 La.App. 4 Cir. 3] Sergeant Jenario Sanders, of the NOPD's Public Integrity Bureau, investigated Ms. Boykins' allegations and prepared a report in which he found, specifically, that on November 8, 2009, Ms. Boykins and her friend, Quanetia Davis, were walking in the French Quarter on Bourbon Street when they were stopped by two police officers who questioned, handcuffed, and arrested them instead of issuing them summonses in accordance with New Orleans' Municipal Code Section 54-28 (1). The arrest affidavits accuse both women of violating the City's ordinance against prostitution loitering, which requires, as an essential element of the offense, that the arresting officer know at the time of the arrest that the subjects had been convicted within the prior year of either soliciting for prostitution, prostitution, or a crime against nature. See New Orleans' Municipal Code Section 54-253. Ms. Boykins's arrest affidavit, however, fails to state that Mr. McMasters knew that she had any prior convictions. Sergeant Sander subsequently discovered that she had never before been convicted of, let alone arrested for, soliciting for prostitution, prostitution, or a crime against nature at any time prior November 8, 2009. Based upon the provisions of the City's prostitution loitering section and the women's arrest and conviction history, Sergeant Sanders submitted a report to the City Attorney's office for review relative to a possible violation of Municipal Code Section 17271:54-99, false imprisonment.
[13-0348 La.App. 4 Cir. 4] B
Although the City chose not to pursue criminal charges, the appointing authority initiated disciplinary proceedings against Mr. McMasters. On July 4, 2010, Mr. McMasters received notice that the internal disciplinary investigation had been completed. He subsequently received notice of a disciplinary hearing to be held on March 16, 2011. At the hearing, Mr. McMasters testified on his own behalf and presented testimony from Officer Scallan and Officer Jacob Lathrop, Officer Scallan's partner.
On March 25, 2011, Mr. McMasters received a disciplinary letter stating that the appointing authority had determined that he violated rules relative to: a) moral conduct, for falsely imprisoning Ms. Boykins; b) performance of duty, for failing to properly verify Ms. Boykins' record in an arrest for prostitution by loitering; and, c) official information, for falsely indicating on the arrest affidavit that Officer Scallan was working undercover on the night of Ms. Boykins's arrest. For violating the
rule regarding moral conduct, the appointing authority dismissed Mr. McMasters from the NOPD. For breaking the rule regarding performance of duty, the appointing authority suspended Mr. McMasters for ten days. And because it concluded that Officer Scallan was wearing his uniform on the night in question, instead of working undercover in plain clothes, the appointing authority suspended Mr. McMasters an additional ten days for violating the rule regarding official information.
[13-0348 La.App. 4 Cir. 5] C
On March 27, 2011, Mr. McMasters timely appealed his suspensions and dismissal to the Civil Service Commission. The Commission assigned Mr. McMasters's appeal to a hearing examiner who conducted an evidentiary hearing. At the hearing, the appointing authority introduced several exhibits and presented testimony from Sergeant Sanders, Superintendent Serpas, Ms. Boykins, Ms. Davis, Officer Scallan, and cross-examined Mr. McMasters in its case-in-chief. Mr. McMasters testified on his own behalf and presented the testimony of Officer Billy Tregle, who was his partner on November 8, 2009. The hearing examiner recommended granting Mr. McMasters's appeal. The Commission, however, denied his appeal and upheld the appointing authority's discipline on December 20, 2012. The Commission concluded that the appointing authority established by a preponderance of the evidence that it had disciplined Mr. McMasters for cause.
On January 22, 2013, Mr. McMasters timely filed a notice of appeal, alleging that the Commission's judgment was contrary to law and evidence and was arbitrary, capricious, and clearly erroneous. Mr. McMasters makes seven assignments of error on appeal. We have already dealt with one assignment, which argued that the discipline imposed by the appointing authority is an absolute nullity because its investigation did not comply with the minimum standards set forth in the Police Officer's Bill of Rights. See La. R.S. 40:2531. Because we initially concluded that the investigation did not comply with the minimum time standards, [13-0348 La.App. 4 Cir. 6] we vacated the Commission's decision, rendered judgment in Mr. McMasters's favor, and ordered his reinstatement to his prior position along with restoration of all back pay and emoluments. See McMasters v. Department of Police, 13-0348 (La.App. 4 Cir. 10/9/13), 126 So.3d 684.
The City sought review of our decision with the Louisiana Supreme Court, which granted writs and reversed on the grounds that the time limitation set out in La. R.S. 40:2531 did not apply because the " investigation into Mr. McMasters's conduct was clearly an investigation of alleged criminal activity." McMasters v. Department of Police, 13-2634, p. 2 (La. 2/28/14), 134 So.3d 1163, 1164. The Supreme Court subsequently remanded the matter so that we could review Mr. McMasters's remaining assignments of error. See McMasters v. Department of Police, 14-2249 (La. 2/13/15), 158 So.3d 826, 2015 WL 894582.
Mr. McMasters's appeal raises several intertwined assignments ...