FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 8515
J. Hessler ATTORNEY AT LAW COUNSEL FOR PLAINTIFF/APPELLANT
Elizabeth Robins Renee Goudeau ASSISTANT CITY ATTORNEY
Cherrell S. Taplin SENIOR CHIEF DEPUTY CITY ATTORNEY Rebecca
H. Dietz CITY ATTORNEY COUNSEL FOR DEFENDANT/APPELLEE
composed of Judge Daniel L. Dysart, Judge Regina
Bartholomew-Woods, Judge Dale N. Atkins
James Cunningham, ("Officer Cunningham") a
permanent, classified employee of the New Orleans Police
Department, seeks review of the Civil Service
Commission's October 17, 2017 ruling, which upheld
Appellant's termination by the New Orleans Police
Department for violating Professional Conduct Rule 3,
Paragraph 9, to wit: Use of Alcohol/Drugs Off-duty. For the
reasons that follow, we reverse the Civil Service
nine (9) years, Officer Cunningham, was a permanent,
classified employee who served as a police officer with the
New Orleans Police Department ("NOPD"), most
recently assigned to the gang unit. On the evening of January
12, 2015, Officer Cunningham, his girlfriend Tiffany Junot
("Ms. Junot"), and a female friend visited
different restaurants and bars to eat dinner and enjoy live
music. After a disagreement with Officer Cunningham, Ms.
Junot left the restaurant and returned to "her"
Shortly thereafter, Officer Cunningham arrived at Ms.
Junot's apartment and used his keys to unlock the outer
metal door and the front door deadbolt. However, he was
unable to gain entry into the apartment because Ms. Junot had
engaged two metal security latches on the front door that
prohibited the door from opening more than a few inches.
Officer Cunningham rang the doorbell numerous times and
yelled to Ms. Junot, but she did not respond. Next, Officer
Cunningham forced his way into the apartment, using his hip
and legs to break through the security latches, which damaged
the door frame. According to Officer Cunningham, upon his
entry into the apartment, Ms. Junot physically attacked him
by scratching his face with her fingernails and punching him
in the face; he testified that he kept his arms at his sides
and did not strike Ms. Junot. Officer Cunningham further
testified that he exited the apartment briefly, then
re-entered the apartment; at that point, Ms. Junot called the
police, began hitting and kicking him, and instructed him to
leave. Officer Cunningham waited outside the apartment for
NOPD to arrive.
their arrival, Officer Cunningham was transported to
University Hospital to receive medical treatment for his
injuries; however, Officer Cunningham refused medical
treatment for his facial lacerations. While at the hospital,
Officer Cunningham submitted to Reasonable Suspicion Alcohol
and Drug Testing (breathalyzer), which showed his blood
alcohol content was 0.125%, an amount in excess of the legal
limit allowed for operating a motor vehicle. NOPD placed
Officer Cunningham on emergency suspension. He was
transported to the Public Integrity Bureau where he met with
his attorney and declined to provide a statement.
January 13, 2015, Officer Cunningham was arrested and charged
with violating La. R.S. 14:35, to wit, simple battery and La.
R.S. 14:62.8, to wit: home invasion. The Orleans Parish District
Attorney's Office refused the charges. NOPD conducted an
internal disciplinary investigation and found him to be in
violation of the following: (1) Moral Conduct Rule 2,
Paragraph 1 Adherence to Law, specifically La. R.S. 14:35 -
Simple Battery; (2) Moral Conduct Rule 2, Paragraph 1
Adherence to Law, specifically La. R.S. 14:62.8 - Home
Invasion; and (3) Professional Conduct Rule 3, Paragraph 9
Use of Alcohol/Drugs Off-duty.
March 2, 2016, a disciplinary hearing was held, but Officer
Cunningham declined to attend. On March 17, 2016, NOPD,
through its Superintendent of Police, Michael Harrison,
issued Officer Cunningham a discipline letter advising him of
his termination based on the aforementioned three (3)
violations. Thereafter, Officer Cunningham filed an appeal
with the Civil Service Commission ("CSC"). On June
29, 2017, the CSC conducted a hearing in this matter and
rendered its opinion on October 17, 2017.
held that NOPD failed to prove, by a preponderance of the
evidence, that Officer Cunningham violated Moral Conduct Rule
2, Paragraph 1 Adherence to Law, specifically La. R.S. 14:35
- Simple Battery, as well as, Moral Conduct Rule 2, Paragraph
1 Adherence to Law, specifically La. R.S. 14:62.8 - Home
Invasion. However, the CSC held that Officer Cunningham
violated Professional Conduct Rule 3, Paragraph 9 Use of
Alcohol/Drugs Off-duty and upheld NOPD's discipline of
termination. It is from the CSC's October 17, 2017 ruling
that Officer Cunningham filed the instant appeal.
summary, Officer Cunningham's assignments of error
address whether the CSC abused its discretion and acted
arbitrarily and capriciously by upholding NOPD's
termination for his violation of Professional Conduct Rule 3,
Paragraph 9 Use of Alcohol/Drugs Off-duty.
consideration of an appeal from a ruling by the CSC, the