FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 8596
J. Hessler ATTORNEY AT LAW COUNSEL FOR PLAINTIFF/APPELLANT
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
composed of Judge Daniel L. Dysart, Judge Joy Cossich
Lobrano, Judge Dale N. Atkins
COSSICH LOBRANO JUDGE
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.
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,
after she failed to provide documentation
of an Orleans Parish domicile between April 30, 2016 and
October 1, 2016.
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.
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.
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 ...