FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 8431
S. LLOYD DONOVAN A. LIVACCARI LIVACCARI LAW LLC COUNSEL FOR
ST. RAYMOND ASSISTANT CITY ATTORNEY ELIZABETH ROBINS DEPUTY
CITY ATTORNEY SUNNI J. LEBEOUF CITY ATTORNEY COUNSEL FOR
composed of Judge Roland L. Belsome, Judge Joy Cossich
Lobrano, Judge Regina Bartholomew-Woods)
Cossich Lobrano Judge
a civil service case. Plaintiff/appellant, Quinetta Rivet
("Rivet"), appeals the January 9, 2018 decision of
the Civil Service Commission ("CSC" or
"Commission") upholding the suspension and
termination of her employment by the appointing authority,
the New Orleans Police Department ("NOPD"). For the
reasons that follow, we affirm the decision of the CSC.
was employed by the NOPD as a police technician and had
permanent status as a classified employee. She was not a
commissioned police officer. She worked in an office where
her job duties included answering telephone calls for the
NOPD's child abuse unit. Rivet was disciplined for (1)
leaving work without the permission of her supervisor,
Sergeant Arnold Williams ("Sgt. Williams"); and (2)
providing a false statement - that Sgt. Williams had given
Rivet permission to leave work - to Sergeant Trinell Franklin
("Sgt. Franklin") of the Public Integrity Bureau
("PIB"), during Sgt. Franklin's disciplinary
investigation of Rivet's conduct.
Following a pre-discipline hearing, on July 9, 2015,
Superintendent Michael Harrison issued a discipline letter to
Rivet, stating that she violated NOPD internal rules relative
to performance of duty, professionalism, and truthfulness.
For the violations concerning performance of duty and
professionalism, Rivet received three suspensions of three
days each, for a total of nine days. For the violation
concerning truthfulness, Rivet's employment with the NOPD
10, 2015, Rivet appealed her termination to the CSC. The CSC
hearing went forward on July 28, 2016, July 20, 2017, and
August 8, 2017.  On December 13, 2017, the hearing examiner
issued his report in which he recommended that the appointing
authority met its burden of proof and established by a
preponderance of the evidence that (1) Rivet was disciplined
for cause; (2) Rivet's conduct impaired the efficiency of
the public service; (3) the discipline imposed was
commensurate with the offense; and (4) Rivet was not denied
due process. On January 9, 2018, the CSC denied Rivet's
appeal, upholding her suspension and termination. This appeal
Court has summarized the governing standard of review and
applicable legal principles as follows:
• An employer cannot subject a permanent classified
civil service employee to disciplinary action except for
cause expressed in writing. La. Const. Art. X, § 8(A);
Walters v. Dep't of Police, 454 So.2d 106, 112
• Cause for discipline of an employee exists whenever
the 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. 4th Cir. 1990).
• "The appointing authority is charged with the
operation of his or her department and it is within his or
her discretion to discipline an employee for sufficient
cause." Whitaker v. New Orleans Police
Dep't, 03-0512, p. 5 (La.App. 4 Cir. 9/17/03), 863
So.2d 572, 575.
• The employee may appeal from such a disciplinary
action to the Commission. On appeal, the Commission has a
duty to decide independently from the facts presented whether
the appointing authority had good and lawful cause for taking
the disciplinary action and, if so, whether the punishment
imposed was commensurate with the infraction.
Walters, 454 So.2d at 113.
• "The authority to reduce a penalty can only be
exercised if there is insufficient cause."
Whitaker, 03-0512 at p. 4, 863 So.2d at 575 (citing
Branighan v. Dep't of Police, 362 So.2d 1221,
1223 (La.App. 4 Cir. 1978)). Further, a legal basis for any
change in a disciplinary action can only be that sufficient
cause for the action was not shown by the appointing
authority. Branighan, 362 So.2d at 1221. The
Commission may not merely substitute its judgment for the
appointing authority's judgment. Whitaker,
03-0512 at p. 5, 863 So.2d at 576.
• On appeal, the standard of review 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. Second, in 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. Bannister [v. Department of
Streets], 95-404 at p. 8, 666 So.2d  at 647 [ (La.
1996) ]. Arbitrary or capricious means there is no rational
basis for the action taken by the Commission. Id.
Abbott v. New Orleans Police Dep't, 2014-0993,
pp. 7-8 (La.App. 4 Cir. 2/11/15), 165 So.3d 191, 197
appeal, Rivet does not challenge her suspensions. Rather, she
seeks appellate review of her termination, raising the
following three issues: (1) whether there was legal cause for
her discipline; (2) whether her discipline was commensurate
with the offense; and (3) whether she was afforded due
first address Rivet's argument that the CSC erred in
finding legal cause existed for her discipline. In an appeal
before the CSC, "[t]he appointing authority has the
burden of proving, by a preponderance of the evidence that
the complained-of activity or dereliction occurred, and that
such dereliction bore a real and substantial relationship to
the efficient operation of the appointing authority."
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).
upheld NOPD's termination of Rivet's employment for
violation of the Truthfulness Rule, which is found in NOPD
Rule 2, Paragraph 3, and provides as follows:
Employees are required to be honest and truthful at all
times, in their spoken, written or electronic communications.
Truthfulness shall apply when an employee makes a materially
false statement with the intent to deceive. A statement is
material when, irrespective of its admissibility under the
rules of evidence, it could have affected the course or
outcome of an investigation or an official proceeding,
whether under oath or not, in all matters and official
investigations relating to the scope of their employment and
operations of the Department as follows:
(a) employees shall truthfully state the facts in any oral,
written, or electronic communication;
(b) employees shall not willfully or negligently make any
false, misleading, or incorrect oral, written, or electronic
(c) employees shall not willfully or negligently withhold
relevant information of which they have knowledge, from any
oral, written, or electronic communication;
(d) employees shall truthfully answer all questions directed
to them on the order of the Superintendent of Police, the
Superintendent's designee, a superior officer, or any
judicial, departmental, or other official investigative body.
rendering its decision, the CSC considered the following
testimony to be pertinent. Sgt. Williams testified that, on
the morning of April 17, 2015, Rivet was the only employee on
duty in the child abuse unit's office. Sgt. Williams was
in the office but was off duty and completing paperwork
during his off-duty time. Shortly after Rivet arrived at
work, she proceeded to Sgt. Williams' office, seeking
permission to leave work to meet a repairman who was at her
home. Sgt. Williams was adamant that he denied Rivet
permission to leave work. Rather, he explained that he told
Rivet that she could not leave work because she was the only
person on duty, and someone needed to be in the office to
answer the telephones. After he discovered that Rivet left
the office, Sgt. Williams called her on her cell phone and
repeated that she did not have permission to leave work, to
which Rivet responded "Well, I'm doing what I have
to do. It's an emergency." Rivet later returned to
work after having been absent for three hours.
Randi Gant ("Sgt. Gant") testified that, on April
17, 2015, Rivet came into Sgt. Gant's office, visibly
upset, and stated that she "wanted to talk to someone
she could trust." Rivet was concerned that she was
"going to get written up." Rivet then told Sgt.
Gant that Sgt. Williams denied Rivet's request to take an
early lunch to meet a repairman, but she left anyway.
testified that when she asked Sgt. Williams for permission to
leave work, he told her to "go, go," and she
interpreted his response as permission to leave work. Rivet
did not complete any emergency furlough paperwork. She did
not recall which repairman had called her or what kind of
emergency repair was done to her home. She failed to explain
why she did not return to the office at the time that Sgt.
Williams called to tell her she did not have permission to
Franklin testified that she was assigned Rivet's
disciplinary investigation and took several administrative
statements. Sgt. Williams gave a statement that he denied
Rivet permission to leave work. Sgt. Gant gave a statement
that Rivet admitted that Sgt. Williams denied Rivet
permission to leave work but Rivet left work anyway. Rivet,
however, gave a statement that Sgt. Williams did not refuse
her request to leave work and told her to "go,
go." Sgt. Franklin concluded that Rivet
violated the ...