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Poche v. Office of Police Secondary Employment

Court of Appeals of Louisiana, Fourth Circuit

November 14, 2018

PEGGY POCHE
v.
OFFICE OF POLICE SECONDARY EMPLOYMENT

          APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 8596

          Eric J. Hessler ATTORNEY AT LAW COUNSEL FOR PLAINTIFF/APPELLANT

          Isaka R. Williams ASSISTANT CITY ATTORNEY Elizabeth S. Robins DEPUTY CITY ATTORNEY Cherrell S. Taplin SENIOR CHIEF CITY ATTORNEY Sunni J. LeBeouf CITY ATTORNEY COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Dale N. Atkins

          JOY COSSICH LOBRANO JUDGE

         This is a civil service case. Plaintiff/appellant, Peggy Poche ("Poche"), appeals the February 28, 2018 decision of the Civil Service Commission ("CSC" or "Commission") upholding the termination of her employment by the appointing authority, the Office of Police Secondary Employment ("OPSE"). For the reasons that follow, we affirm the decision of the CSC.

         Poche was employed by the OPSE as an analyst and had permanent status as a classified employee. She was not a commissioned police officer. Poche was disciplined for violating the City of New Orleans (the "City") domicile ordinance, [1]after she failed to provide documentation of an Orleans Parish domicile between April 30, 2016 and October 1, 2016.

         On November 5, 2016, Poche was placed on emergency suspension. Following a pre-discipline hearing on November 11, 2016, OPSE Director John L. Salomone, Jr. ("Director Salomone") issued a discipline letter to Poche, dated November 16, 2016, stating that Poche violated the City's internal policy requiring compliance with the domicile ordinance. For violation of the domicile ordinance, Poche's employment with the OPSE was terminated effective November 11, 2016.

         On December 12, 2016, Poche appealed her termination to the CSC. The CSC hearing went forward on August 15, 2017. On January 25, 2018, 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) the complained-of infraction occurred; (2) Poche's conduct impaired the efficiency of the public service; and (3) the discipline imposed was commensurate with the offense. On February 28, 2018, the CSC denied Poche's appeal, upholding her termination. This appeal followed.

         This Court explained the applicable burden of proof and standard of review in civil service discipline cases as follows:

The CSC has authority to "hear and decide" disciplinary cases, which includes the authority to modify (reduce) as well as to reverse or affirm a penalty. La. Const. Art. X, § 12; Pope v. New Orleans Police Dept., 04-1888, p. 5 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4. The appointing authority is charged with the operation of its department, and it is within its discretion to discipline an employee for sufficient cause. The CSC is not charged with such discipline. The authority to modify a penalty can only be exercised if there is insufficient cause for imposing the greater penalty. Pope, pp. 5-6, 903 So.2d at 4.
The 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. Dept. of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, citing Marziale v. Dept. of Police, 06-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767. The protection of civil service employees is only against firing or other discipline without cause. La. Const. Art. X, § 12; Cornelius v. Dept. of Police, 07-1257, p. 7 (La.App. 4 Cir. 3/19/08), 981 So.2d 720, 724, citing Fihlman v. New Orleans Police Dept., 00-2360, p. 5 (La.App. 4 Cir. 10/31/01), 797 So.2d 783, 787.
The decision of the CSC is subject to review on any question of law or fact upon appeal to this court, and this court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const. Art. X, § 12; Cure, p. 2, 964 So.2d at 1094. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this court should not modify the CSC order unless it was arbitrary, capricious, or characterized by an abuse of discretion. Id. A decision of the CSC is "arbitrary and capricious" if there is no rational basis for the action taken by the CSC. Id., p. 2, 964 So.2d at 1095.

Clark v. Dep't of Police, 2012-1274, pp. 4-5 (La.App. 4 Cir. 2/20/13), 155 So.3d ...


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