Court of
Appeal of
Willie DAVIS
v.
NEW
ORLEANS POLICE DEPARTMENT.
No. 2004-CA-1023.
Feb. 2, 2005.
Rehearing Denied March 15, 2005.
Background:
After police sergeant was suspended for 15 days and demoted to the rank of
police officer by the appointing authority, police sergeant appealed. The city
civil service commission denied the appeal. Police sergeant appealed.
Holding: The
Court of Appeal, Edwin A. Lombard, J., held that the appointing authority's
violation of the 60-day investigation period provided in statute that set out
the minimum standards that applied during a disciplinary investigation of a law
enforcement officer provided a basis for the Civil Service Commission to hear
police sergeant's appeal of disciplinary suspension and demotion.
Reversed.
Adam S.
Lambert,
Jessica LaCambra,
Court composed of Judge DAVID S. GORBATY,
Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME.
LOMBARD, J.
This appeal is from a Civil Service Commission
decision dated May 26, 2004, regarding a disciplinary action imposed by the New
Orleans Police Department (“the appointing authority”) upon the plaintiff,
Sergeant Willie Davis. After review of the record in light of the arguments of
the parties and the applicable law, we reverse the Civil Service Commission
decision.
Relevant Facts and Procedural History
On the evening of November 27, 2001, a domestic
disturbance arose when Katrina Joseph, a girlfriend of Sgt. Davis, arrived at his
apartment and encountered another of Sgt. Davis's girlfriends, Tokiwa Johnson. Both women were enraged and, in the ensuing
squabble, a firearm belonging to Sgt. Davis was discharged into the air outside
of his apartment. The New Orleans Police Department was called and, upon their
arrival, Ms. Johnson told the police officers that Sgt. Davis fired the weapon.
Ms. Joseph corroborated Ms. Johnson's statement. The officers informed Sgt.
Davis that he was the subject of a criminal investigation for illegal discharge
of a firearm. Sgt. Davis stated that he had not fired any weapon and that it
was Ms. Johnson who discharged the firearm. When asked where his gun was
located, Sgt. Davis stated that his service revolver was in his apartment. The
firearm that had discharged, Sgt. Davis's personal weapon, was retrieved from
under the seat of a rental car in Sgt. Davis's driveway.
Two days later, after the matter was turned over to
the District Attorney's office, Ms. Joseph went to the District Attorney's
office with her attorney and recanted her initial statement to the police.
According to Ms. Joseph, it was Ms. Johnson, not Sgt. Davis, who fired the
weapon. Ms. Joseph stated that Ms. Johnson asked her to lie to the police about
the incident because she was on federal probation and that on the evening of
the incident the women were not questioned separately by the police.
On June 24, 2002, the District Attorney's office
refused to institute charges against Sgt. Davis. On July 11, 2002, the New
Orleans Police Department forwarded the case file to the Office of Municipal
Investigation (“OMI”) for completion of the administrative investigation. The
OMI agent completed his report on January 27, 2003, and on May 12, 2003, the
administrative investigative report alleging violations of Departmental Rules
and/or Procedures was submitted to the appointing authority. No requests for an
extension of time to complete the investigation were filed and no explanation
for the delay in completing and submitting the administrative investigative
report is forthcoming.
Sgt. Davis was apprized of the charges against him and
on August 20, 2003, a hearing was held. The following day, a letter was issued
by the appointing authority notifying Sgt. Davis that he was suspended for a 15
day period and demoted from the rank of Police Sergeant to Police Officer for
conduct which constituted a violation of departmental rules pertaining to
Professionalism, Neglect of Duty, and False or Inaccurate Reports.
Sgt. Davis appealed the decision to the Civil Service
Commission. A hearing was held before a Hearing Examiner on December 10, 2003,
and January 13, 2004. On May 26, 2004, the Civil Service Commission issued a
decision denying the appeal. Sgt. Davis appeals the decision of the Civil
Service Commission, arguing that the Civil Service Commission erred in failing
to grant his appeal based on the violation of La.Rev.Stat.
40:2531(B)(7). In the alternative, Sgt. Davis contends
that his appeal should be granted because the appointing authority failed to prove
its case at the hearing and the procedural deficiencies of the investigation
and hearing constituted a violation of his constitutional right to due process.
Discussion
The statute
at issue in this case, La.Rev.Stat. 40:2531, provides in
pertinent part:
B. Whenever a law enforcement
officer is under investigation, the following minimum standards shall apply:
............
Except as
otherwise provided in this Paragraph, each investigation of a law enforcement
officer which is conducted under the provisions of this Chapter shall be
completed within sixty days.
However, in each municipality which is subject to a Municipal Fire and Police
Civil Service law, the municipal police department may petition the Municipal
Fire and Police Civil Service Board for an extension of the time within which
to complete the investigation. The board shall set the matter for hearing and
shall provide notice of the hearing to the officer who is under investigation.
The officer who is under investigation shall have the right to attend the
hearing and to present evidence and arguments against the extension. If the
board finds that the municipal police department has shown good cause for the
granting of an extension of time within which to complete the investigation,
the board shall grant an extension of up to sixty days. Nothing contained in
this Paragraph shall be construed to prohibit the law enforcement officer under
investigation and the appointing authority from entering into a written
agreement extending the investigation for up to an additional sixty days.
Further, nothing in this Paragraph shall limit any investigation of alleged
criminal activity.
The Commission acknowledges
that the appointing authority violated La.Rev.Stat.
40:2531(B)(7) by failing to complete the investigation of a law enforcement
officer within 60 days but opines that in accordance with Bannister v.
Department of Streets, 95-0404 (La.1/16/96) 666 So.2d 641, the statutory
language is directory, not mandatory, and that because the appellant's defense
was not prejudiced, there is no basis for granting Sgt. Davis's appeal. We
disagree with the Commission's interpretation of the statute.
When a law is clear and
unambiguous and its application does not lead to absurd consequences, the law
shall be applied as written and no further interpretation may be made in search
of the intent of the legislature.
The Commission's reliance on
Bannister as authority for finding the statutory language at issue to be merely
directory, rather than mandatory, is misplaced. In Bannister, the Louisiana
Supreme Court determined that a civil service procedural rule which provides
that “[a]ppeals to the Commission shall be decided
promptly, but in any event ninety (90) calendar days after .. receipt” of the hearing officers report and hearing
transcript was directory, not mandatory, and, accordingly, a decision rendered
beyond the ninety-day period in violation of the rule was not erroneous per se.
In reaching this decision,*40 the Court considered the purpose and intent of
the drafters of Civil Service Rule II, § 4.16, finding as follows:
As disclosed by its
introductory clause, the purpose of Rule II, § 4.16 is to assure that the
Commission promptly renders decisions in its appeals. Additionally, the
provision states that such determinations are to be rendered “in any event”
within ninety days after receiving the hearing officer's work. The secondary
nature of this added clause, although seemingly couched as an imperative,
discloses an intent merely to guide the Commission in
its duties by proposing system and dispatch in its proceedings. Furthermore,
the auxiliary verb “shall” is clausally and directly
linked with “be decided promptly,” the primary facet of the rule, rather than
with the language concerning the ninety-day period self-imposed by the
Commission. We thus read the indicated time specification to amplify the rule's
stated purpose, but, nevertheless, to be merely directory in nature.
In reaching that conclusion,
we are also impressed by the fact that Rule II, § 4.16 relates solely to the
Commission's own actions. Understandably, once litigants in a civil service
proceeding present their case, its resolution is then placed beyond their
control and into the hands of the administrative body. Yet, the mandatory
application of the rule in question would cause the parties to win or lose
simply as a result of unintended actions-even neglect-by that agency. Such an
outcome, rather than fostering decisions based on the merits, would allow sheer
technicalities to defeat actual justice.
Bannister,
666 So.2d at 646 (citation omitted).
By
contrast, as disclosed by its introductory clause, La.Rev.Stat. 40:2531(B)(7) provides the
minimum standards that must be adhered to when a law enforcement officer is
under investigation. Moreover, the mandatory nature of La.Rev.Stat. 40:2531(B)(7)
is clearcut: each investigation shall be completed
within 60 days; a request for an extension of the 60-day time period shall be
set for hearing and the officer under investigation shall be provided notice
and an opportunity to contest an extension of time; if good cause is shown for
the granting of an extension of time, an extension of up to sixty days shall be
granted. Accordingly, even where a continuance is granted for good cause shown,
the Louisiana Legislature has mandated that an investigation of a police
officer must be completed within one hundred and twenty days. Finally, Chapter 25, entitled “Rights of Law Enforcement Officers While Under
Investigation”, La. Rev. Stats. 40:2531-2535, is often referred to as the
Police Officer's Bill of Rights, and its purpose is to protect the due process
rights of law enforcement officers “who are under investigation with a view to
possible disciplinary action, demotion, or dismissal.” Thus, whereas the civil
service rule at issue in Bannister was promulgated by the Civil Service
Commission to ensure administration of its system in an orderly and efficient
manner, the Police Officer's Bill of Rights was drafted by the state
legislature to ensure that law enforcement officers under investigation are
afforded minimum standards of due process.
In this case, it is undisputed
that the investigation went well beyond both the mandated initial sixty-day
period and the maximum allowable one-hundred-and-twenty-day period FN1.
No extension was requested*41 and Sgt. Davis was not notified of the continuing
investigation or given an opportunity to object to the delay in resolving the
matter. Under these circumstances, we find that the violation of La.Rev.Stat. 40:2531(B)(7) is a
basis for granting Sgt. Davis's appeal.
FN1. The criminal
investigation ended on June 24, 2002, when the District Attorney's office
refused to institute charges against Sgt. Davis and the matter was transferred
to the OMI to complete the administrative investigation. The administrative
investigation was not completed for another eleven months. Because the period
relating solely to the administrative investigation after completion of the
criminal investigation extended well beyond the statutory sixty-day period we
need not address whether the statutory period was tolled by the criminal
investigation.
Conclusion
The Civil Service Commission
was clearly erroneous in failing to grant appellant's appeal based on the
violation of La.Rev.Stat. 40:2531(B)(7).
Accordingly, the decision of the Commission is reversed and the appeal filed by
Sgt. Davis is granted.
REVERSED.
La.App. 4 Cir.,2005.
899 So.2d 37, 2004-1023
(La.App. 4 Cir. 2/2/05)
END OF DOCUMENT