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Gant v. New Orleans Police Department

Court of Appeals of Louisiana, Fourth Circuit

December 4, 2019

RANDI GANT
v.
NEW ORLEANS POLICE DEPARTMENT

          APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS

          Donovan A. Livaccari LIVACCARI LAW LLC COUNSEL FOR PLAINTIFF/APPELLANT

          Renee Goudeau ASSISTANT CITY ATTORNEY Elizabeth S. Robins DEPUTY CITY ATTORNEY Sunni J. LeBeouf CITY ATTORNEY COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase

          TIFFANY G. CHASE JUDGE

         This is a civil service case. Randi Gant (hereinafter "Sgt. Gant") appeals the June 6, 2019 judgment of the Civil Service Commission (hereinafter "the Commission") which upheld her dismissal by the New Orleans Police Department (hereinafter "the NOPD"). After consideration of the record before this Court and the applicable law, we affirm the decision of the Commission.

         FACTS AND PROCEDURAL HISTORY

         Sgt. Gant, a fifteen-year veteran of the NOPD, was assigned to an administrative position within the NOPD's Investigation and Support Bureau (hereinafter "ISB"). Her duties included fleet management wherein she was responsible for tracking and reporting the mileage of city owned vehicles assigned to ISB personnel. In addition, Sgt. Gant was responsible for monitoring compliance with NOPD's policies regarding take-home vehicles.[1]

         NOPD Policy 705.2 of the NOPD Policy Manual mandates that a "take-home vehicle shall not be assigned to an employee when the one-way driving distance from the employee's actual domicile to the employee's primary reporting to work site is greater than 40 miles." NOPD Policy 705.2 also mandates that "[a] department member assigned a take home vehicle shall complete a City of New Orleans Take Home Vehicle Add/Delete/Change Form" (hereinafter "take-home vehicle form"). A payroll deduction is required for use of a take-home vehicle and an accompanying policy of the City of New Orleans sets the rates at which employees, who make use of a take-home vehicle, receive a deduction in their payroll. Employees who live within 0-20 miles of their work site receives a $24.04 weekly deduction while employees who live greater than twenty miles from their work site receive a $72.12 weekly deduction.

         Sgt. Gant is married to Victor Gant (also a sergeant in the NOPD) and, since 2007, the couple maintained a marital residence in Covington (hereinafter "the marital residence"). The ISB offices are located at 715 South Broad Street in New Orleans. The parties stipulated the distance between the marital residence and the ISB offices is greater than forty miles.

         In 2013 or 2014, Sgt. Gant's husband was added to the lease on an apartment rented by one of his friends on Emerald Forest Boulevard (hereinafter "the Emerald Forest address").[2] The parties stipulated that the Emerald Forest address is less than forty miles from the ISB offices. Sgt. Gant's husband testified that he would occasionally stay at this apartment to better respond to emergency calls to report to duty although he acknowledged the marital residence was his primary address. He confirmed that Sgt. Gant never lived at the Emerald Forest address and that her name did not appear on the lease. He further testified that Sgt. Gant never had a key although she did have an access card to the apartment complex's parking lot. In September 2015, the lease ended and Sgt. Gant's husband no longer had access to the Emerald Forest address.

         On June 30, 2016, Sgt. Gant executed a take-home vehicle form. She listed her address as the Emerald Forest address. Sgt. Gant signed and initialed the form affirming she was aware of the policies regarding take-home vehicles and that the one-way driving distance between her actual domicile and her primary work site was 37.4 miles.

         In 2018, Sgt. Gant was investigated for irregularities in the NOPD's payroll system regarding her take-home vehicle. Lt. Precious Banks (hereinafter "Lt. Banks") of the NOPD's Public Integrity Bureau conducted the investigation. The three charges investigated were premised on Rule 4, Paragraph 2 (Instructions from an Authoritative Source) with one charge pertaining to take-home vehicles. During the course of the investigation, Lt. Banks confirmed that Sgt. Gant did not reside at the Emerald Forest address. Lt. Banks further discovered that Sgt. Gant had been using the log-in of a subordinate to access the NOPD's payroll system and enter mileage ranges associated with her take-home vehicle.[3] Sgt. Gant had manually selected the 0-20 miles range option instead of the 20-40 miles range option. When giving her statement to Lt. Banks, Sgt. Gant contended the erroneous payroll entries were an unintentional mistake, and filed a series of payroll adjustment forms to repay the monetary amounts that should have been properly deducted from her payroll.

         On August 31, 2018, Sgt. Gant was issued a Notice to the Accused of Completed Investigation and Notice of Pre-Disciplinary Hearing form. Lt. Banks recommended that the original Rule 4, Paragraph 2 charges be dismissed. Three additional charges were also listed: 1) Rule 4, Performance of Duty, Paragraph 2: Instructions from an Authoritative Source (NOPD Policy 705 Take Home Vehicles);[4] 2) Rule 6: Official Information, Paragraph 2: False or Inaccurate Reports (City of New Orleans Take Home Vehicle Add/Delete/Change Form and NOPD Vehicle Inventory Reporting Form); and 3) Rule 6: Official Information, Paragraph 2: False or Inaccurate Reports (ADP Payroll Records, 44 payroll periods). Lt. Banks recommended these charges be sustained.

         On November 14, 2018, the NOPD conducted a Superintendent's Disciplinary Committee pre-disciplinary hearing. The NOPD did not sustain the Rule 4, Paragraph 2 charge. However, it sustained the Rule 6, Paragraph 2 charges as to the take-home vehicle form and payroll entries. The penalty for these violations was dismissal. Sgt. Gant appealed this decision to the Civil Service Commission.

         A hearing was conducted by a Civil Service Commission Hearing Examiner at which testimony was heard from Sgt. Gant, her husband, Lt. Banks, Deputy Superintendent John Thomas (hereinafter "Deputy Superintendent Thomas"), [5] and former Deputy Superintendent Rannie Mushatt (hereinafter "Deputy Superintendent Mushatt").[6] Evidence introduced into the record included the take-home vehicle form, documentation of the investigation and resulting discipline, and the NOPD's rules, policies, and penalty matrix. On June 6, 2019, the Commission rendered its decision denying Sgt. Gant's appeal. Sgt. Gant filed her appeal to this Court.

         STANDARD OF REVIEW

         Appellate courts review an appeal of a decision by the Civil Service Commission under a multifaceted standard of review.

In Banks v. New Orleans Police Dep't., 2001-0859, p. 3 (La.App. 4 Cir. 9/25/02), 829 So.2d 511, 513-14, we articulated the standard of review in civil service cases. First, the review by appellate courts of the factual findings in a civil service case is governed by the manifest error or clearly erroneous standard. Second, when the Commission's decision involves jurisdiction, procedure, and interpretation of laws or regulations, judicial review is not limited to the arbitrary, capricious, or abuse of discretion standard. Instead, on legal issues, appellate courts give no special weight to the findings of the trial court, but exercise their constitutional duty to review questions of law and render judgment on the record. A legal error occurs when a trial court applies the incorrect principles of law and such errors are prejudicial. Finally, a mixed question of fact and law should be accorded great deference by appellate courts under the manifest error standard of review. See Stern v. New Orleans City Planning Comm'n, 2003-0817, pp. 5-6 (La.App. 4 Cir. 9/17/03), 859 So.2d 696, 699-700.

Russell v. Mosquito Control Bd., 2006-0346, pp. 7-8 (La.App. 4 Cir. 9/27/06), 941 So.2d 634, 639-40.

         DISCUSSION

         Sgt. Gant presents three assignments of error on appeal. The first two assignments of error relate to the substantive findings of the Commission challenging the existence of cause for Sgt. Gant's dismissal and that her dismissal was commensurate with the offense. The third assignment of error is a procedural challenge wherein Sgt. Gant seeks to have her dismissal declared an absolute nullity. We organize our discussion of these assignments of error into two sections, addressing the procedural challenge first.

         Procedural Challenge: Notice

         Sgt. Gant argues that because the NOPD did not comply with the notice requirements of La. R.S. 40:2531(B)(1), [7] her discipline of dismissal should be deemed an absolute nullity pursuant to La. R.S. 40:2531(C). At the Commission hearing, the following ...


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