FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 8265
Donovan Anthony Livaccari LIVACCARI VILLARRUBIA LEMMON, LLC
COUNSEL FOR PLAINTIFF/APPELLANT
Stephanie Dovalina ASSISTANT CITY ATTORNEY Isaka Rachell
Williams ASSISTANT CITY ATTORNEY Cherrell R. Simms SENIOR
CHIEF DEPUTY CITY ATTORNEY Rebecca H. Dietz CITY ATTORNEY
COUNSEL FOR DEFENDANT/APPELLEE
composed of Chief Judge James F. McKay III, Judge Terri F.
Love, Judge Sandra Cabrina Jenkins)
F. MCKAY III CHIEF JUDGE
civil service case, New Orleans Police Department (NOPD)
Officer Ryan Aucoin appeals the dismissal of his appeal by
the Civil Service Commission of the City of New Orleans for
the discipline imposed by the appointing authority (NOPD). We
AND PROCEDURAL HISTORY
April 5, 2012, at 3:06 a.m., Officer Aucoin was arrested and
charged with driving while intoxicated and careless operation
of a motor vehicle, while driving a NOPD marked vehicle on
the Causeway Bridge in St. Tammany Parish. Officer Aucoin
performed poorly on a field sobriety test and the arresting
officer noted a strong odor of alcohol on his breath.
Thereafter, Officer Aucoin entered and completed the St.
Tammany Parish District Attorney's Pre-Trial Diversion
Program, thereby accepting responsibility for the state
violations of driving while intoxicated (La. R.S. 14:98) and
careless operation of a motor vehicle (La. R.S. 32:58).
NOPD undertook an administrative investigation of Officer
Aucoin for alleged violation of NOPD rules and regulations in
connection with his aforementioned arrest. A pre-disciplinary
hearing took place before Deputy Superintendent Kirk Bouyelas
of the Investigative Services Bureau on October 15, 2013.
Dept. Supt. Bouyelas recommended the following penalties for
the following violations: 1) a 61 day suspension for
violation of Department Rule 2, Moral Conduct; Paragraph 1:
Adherence to Law relative to R.S. 14:98 Driving While
Intoxicated; 2) a 3 day suspension for violation of
Department Rule 4: Performance of Duty; Paragraph 2:
Instructions from an Authoritative Source, to wit; C.A.O.
Policy Memorandum #89, Section XI Employee off-the-job
Conduct; 3) a letter of reprimand for violations of
Department Rule 2: Moral Conduct; Paragraph 1: Adherence to
Law relative to R.S. 32:58 Careless Operation of a Motor
Vehicle; and 4) a letter of reprimand for violation of
Department Rule 3: Professional Conduct, Paragraph 1:
Professionalism. Thereafter, Officer Aucoin received a
disciplinary letter from Superintendent of Police Ronal
Serpas sustaining the findings and recommended discipline.
February 14, 2014, Officer Aucoin filed an appeal with the
Civil Service Commission. The NOPD filed a motion for summary
dismissal on August 4, 2014, arguing that Officer Aucoin did
not have a right to appeal pursuant to CS Rule II, Section
6.1 because he acknowledged that he violated the law by
entering into the diversion program.
matter came before the Commission on the NOPD's motion
for summary dismissal at a November 17, 2014 hearing. Officer
Aucoin failed to appear at this hearing. Following oral
argument, the Commission dismissed the appeal based on the
nature of the offense and the Supreme Court case of Regis
v. NOPD, 2013-1124 (La. 6/28/13), 121 So.3d 665, which
held that violation of a state statute ipso facto
impairs the efficient operation of the department.
Thereafter, Officer Aucoin filed an application for
rehearing, which the Commission denied on March 19, 2015.
Therefore, Officer Aucoin moved for an order of appeal, which
was entered on May 21, 2015.
appeal, Officer Aucoin raises the following assignments of
error: 1) the Civil Service Commission erred by denying his
appeal without affording him a hearing contrary to the rules
of the civil service; and 2) the Civil Service Commission
erred by denying his appeal when the NOPD failed to introduce
evidence of legal cause for the disciplinary action taken
meeting its legally required burden of proof.
standard of review for civil service cases in the appellate
courts is multifaceted. See Muhammad v. New Orleans
Police Dep't., 2000-1034, p. 4 (La.App. 4 Cir.
7/11/01), 791 So.2d 788, 790. When reviewing the
Commission's findings of fact, the appellate court must
apply the clearly wrong or manifestly erroneous standard.
However, when judging the Commission's exercise of its
discretion in determining whether the disciplinary action is
based on legal cause and the punishment is commensurate with
the infraction, the reviewing court should not modify the
Commission's order unless it is arbitrary, capricious or
characterized by abuse of discretion. Id., 00-1034,
pp. 4-5, 791 So.2d at 790-91 (citing Wilson v. New
Orleans Aviation Bd., 96-1350, p. 2 (La.App. 4 Cir.
1/15/97), 687 So.2d 593, 595). Therefore, the appropriate
standard of appellate review of actions by the Civil Service
Commission is to determine whether the conclusion reached by
the Commission is arbitrary or capricious. Id.
(citing Palmer v. Dep't. of Police, 97-1593
(La.App. 4 Cir. 1/28/98), 706 So.2d 658). As in other civil
matters, deference ...