FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 8444 C/W 8467,
John Prendergast ATTORNEY AT LAW COUNSEL FOR
Elizabeth Robins DEPUTY CITY ATTORNEY Corwin M. St. Raymond
ASSISTANT CITY ATTORNEY Sunni J. LeBeouf CITY ATTORNEY
COUNSEL FOR DEFENDANT/APPELLEE
composed of Judge Roland L. Belsome, Judge Joy Cossich
Lobrano, Judge Regina Bartholomew-Woods)
consolidated appeals challenge various final decisions of the
New Orleans Civil Service Commission, the review of which
this Court possesses jurisdiction pursuant to La.Const. art.
X, section 12. For the reasons that follow, we reverse the
decision of the Civil Service Commission, and order that Ms.
Edmonds be reinstated to her former position as Parking
Edmonds was a long-time employee of the City of New Orleans
("the City") Department of Public Works
("DPW"). In 2006, Ms. Edmonds was promoted to the
classified position of Parking Administrator, and held that
position at all times relevant to the instant appeals. In
September and October of 2015, Ms. Edmonds filed two appeals
with the City's Civil Service Commission ("the
Commission"). The first appeal was filed in response to
a letter concerning a pre-termination hearing, and the second
was filed in response to a notice of emergency suspension.
January 11, 2016, Ms. Edmonds was terminated by DPW's
Director, Colonel Mark Jernigan. DPW alleged four bases for
her termination. However, these appeals concern only one
basis, that being her alleged failure to cooperate with an
investigation initiated by the City's Office of the
Inspector General ("OIG"). Ms. Edmonds also
appealed her termination to the Commission in February of
hearing examiner for the Commission heard testimony over a
period of nine (9) days between April 21, 2016, and March 13,
2017. On August 2, 2017, the hearing examiner rendered a
written report concluding "that the DPW failed to prove
by a preponderance of evidence that [Ms. Edmonds']
emergency suspension and termination were for cause."
September 5, 2017, the Commission rendered its decision
finding that Ms. Edmonds "did engage in misconduct"
regarding the OIG investigation, but that "such
misconduct did not warrant termination." However, the
Commission found "[t]here was nothing in the record to
assist the Commission in determining what an appropriate
level of discipline would be in the matter now before
us." The Commission therefore remanded the matter back
to the hearing examiner to determine the appropriate level of
remand, a hearing was conducted and the hearing examiner
issued a report, describing the parties as having provided
"no assistance whatsoever in determining what the
appropriate level of discipline should be in accordance with
the Commission's mandate." A review of the hearing
transcript indicates that the parties did indeed simply
rehash the merits of their cases, though DPW suggested a
166-day suspension would be appropriate, along with
demotion. However, the examiner concluded that an
appropriate penalty could be recommended based on the record
and his personal experience, with reference to the New
Orleans Police Department Penalty Matrix. The hearing
examiner accordingly recommended a one-day suspension.
November 16, 2017, the Commission rendered a 2-1 decision.
The majority declined to follow the recommendation of the
hearing examiner. However, the Commission agreed several
mitigating factors existed, to wit: a lack of prior
discipline during Ms. Edmond's thirty-two (32) year
career at DPW; her prior cooperation with OIG investigations;
her "serious personal illness;" and indications
that she had been "overwhelmed" by her workload
during the relevant period. Nonetheless, the Commission
reaffirmed its position that Ms. Edmonds' engaged in
"serious misconduct" and accordingly found
"involuntary demotion to a lower classification" to
be an appropriate penalty. The Commission ordered DPW to
reinstate Ms. Edmonds to the position of Assistant Parking
Administrator "at a step that would result in no greater
than a $3, 000/yr. reduction in salary." The Commission
reasoned that such reduction would be equivalent to a
sixty-day unpaid suspension. DPW was also instructed to remit
all back pay and emoluments consistent with her
reclassification dating back to January 11, 2016. The
dissenting commissioner would have simply imposed a sixty-day
Ms. Edmonds and DPW have appealed the decisions of the
Commission. Specifically, Ms. Edmonds seeks review of the
Commission's September 5, 2017 decision finding she
engaged in misconduct warranting discipline with respect to
the OIG investigation, arguing the Commission
"manifestly erred" in making several findings. She
further appeals her demotion, arguing such discipline is not
commensurate with the conduct in question. DPW also appeals
the Commission's decision regarding Ms. Edmonds'
discipline, suggesting that its decision to terminate was
indeed warranted. Ms. Edmonds' also appeals the
Commission's denials of her motions to reconsider its
investigation in question commenced in 2014, a time at which
the OIG was conducting a number of investigations into the
Parking Division. In summary, the OIG sought to determine
whether certain Parking Control Officers ("PCOs")
had issued citations to patrons and employees of hotels in
retaliation against those hotels after being asked to leave
the establishments for loitering. OIG Investigator Eddie
Hernandez first met with Ms. Edmonds on August 11, 2014. Ms.
Edmonds and Mr. Hernandez had differing accounts of exactly
what occurred during this initial meeting. It is unclear
exactly what Mr. Hernandez requested at that time because he
did not put anything into a formal written document. The
Commission's September 5, 2017 ruling even stated that it
was "surprised that Mr. Hernandez did not make his
original request for information in writing." Ms.
Edmonds did testify that Mr. Hernandez "scribbled some
stuff on the back of a piece of paper" that did not
concern the retaliatory actions of the PCOs, and it is not
clear if the list was given to her or retained by Mr.
Hernandez. She also stated "[h]e couldn't even find
the paper. That's why he sent me an email[, ]"
referring to a December 18, 2014 e-mail requesting she send a
copy of the list of items he requested. Mr. Hernandez
confirmed this during his testimony. Mr. Hernandez also
testified that he asked his supervisor whether he needed to
type anything up for the meeting and was told that it was not
necessary. Apparently, as a result of Ms. Edmonds'
perceived lack of cooperation, the OIG has instituted a
"Zepporiah Rule" now requiring all requests be put
in writing for record purposes.
Commission was presented with texts exchanged between Ms.
Edmonds and Mr. Hernandez, specifically one sent to Ms.
Edmonds on September 17, 2014, asking if "the
items" were ready to be picked up. Ms. Edmonds responded
with a time at which Mr. Hernandez could stop by the office,
but she was unable to fulfill the commitment because she was
at Tulane Hospital for an unspecified reason. Communications
continued into November, when Ms. Edmonds indicated her
absence from work "until further notice" due to an
illness. She also conveyed her understanding that Mr.
Hernandez was working with Sherida Emery in her absence. Mr.
Hernandez replied that he had contacted Ms. Emery, but that
Ms. Emery had not responded. Ms. Edmonds responded that she
was chagrined at her office's lack of response, but added
that Ms. Emery was "overwhelmed" and "working
triple duty which is causing her to be pulled in many
Emery testified that she worked to fulfill Mr.
Hernandez's requests while Ms. Edmonds' dealt with
her illness, though she did not possess the same authority as
Ms. Edmonds and therefore was unable to make a request of
Xerox for the records in question. As a result, she contacted
Xerox and obtained contact information for an individual
named Brett Peze, who could provide Mr. Hernandez with the
information he needed. Later in the hearings, Richard
Boseman, Administrator for the Hearing Center and Parking
Administrator, testified that he was familiar with the
capabilities of the Xerox system used by DPW, and that any
reports such as that requested by Mr. Hernandez would need to
be requested directly from Xerox.
Commission also reviewed several other e-mails. The first,
the e-mail from Mr. Hernandez on December 18, 2014, requested
Ms. Edmonds provide "a copy [of] the list of items that
I requested that we discussed earlier this year." The
Commission interpreted the e-mail to suggest that Mr.
Hernandez did not recall what information he had initially
requested in the August, 2014 meeting. In the second e-mail,
Ms. Edmonds contacted Mr. Hernandez again on February 13,
2015, responding to his February 9, 2015 follow-up to an
e-mail he had sent earlier that year. The Commission
described the latter e-mail, sent January 12, 2015, as
"far more indicative of the types of inquiries the
Commission has reviewed as part of an OIG
investigation." She apologized for the delay, indicating
a misunderstanding on her part, as she believed an answer had
been provided earlier. She also indicated that she was in the
midst of organizing for the upcoming Mardi Gras holiday, yet
she provided written answers to the numerous questions posed
by Mr. Hernandez. Her e-mail indicated that the Parking
Division was transitioning from Xerox to Duncan Solutions as
its vendor, and confirmed that an individual named Brett Peze
would be the appropriate contact person for tickets issued
prior to the transition. Ms. Edmonds added in her response
her understanding that "[y]ou [Mr. Hernandez] agreed to
contact Mr. Peze directly." Notably, she made this
statement in response to his question "Is Brett Peze the
best person for me to speak with concerning the tickets
[prior to DPW's transition from Xerox to ...