Court of
Appeal of
Joseph HEBERT
v.
NEW
ORLEANS POLICE DEPARTMENT.
No. 2001-CA-1165.
Dec. 19, 2001.
Writ Denied March 22, 2002.
Police
officer who achieved permanent status in classified civil service appealed from
ruling of Civil Service Commission No. 6300, summarily dismissing his appeal of
letter of reprimand. The Court of Appeal, Max N. Tobias, Jr., J., held that:
(1) letter of reprimand issued to police officer who has achieved permanent
status in classified civil service may be appealed to commission when
underlying charges and evidence relative to those charges are fresh, and (2)
police officer's paid detail privileges constitute outside employment, and
suspension of such detail privileges is beyond commission's constitutional
grant of jurisdiction.
Reversed and remanded.
Adam S.
Lambert,
Mavis S. Early, City Attorney, Eileen P. Comiskey,
Assistant City Attorney, Joseph V. DiRosa, Jr.,
Deputy City Attorney, New Orleans, LA, Counsel for Defendant/Appellee.
Court composed of Judge CHARLES R. JONES, Judge TERRI
F. LOVE, and Judge MAX N. TOBIAS, JR.
MAX N. TOBIAS, JR., Judge.
Sergeant Joseph Hebert (“Sgt.Hebert”)
appeals a 26 April 2001 ruling of the Civil Service Commission (“the
Commission”), which summarily dismissed his appeal of a letter of reprimand.
Sgt. Hebert has achieved permanent status in the
classified city service. By letter dated 6 December 2000, the New Orleans
Police Department (“the NOPD”), through
Superintendent Richard Pennington, informed Sgt. Hebert that an administrative
investigation had revealed that he had worked one authorized paid detail at a Walmart and twelve authorized paid details at the Sewerage
and Water Board without causing his name to be entered into the detail logbook
of the district within which the details were located, in violation of a
departmental rule regarding Instructions from an Authoritative Source. The
letter stated that following a hearing held before Bureau Chief Ronald Serpas (“Chief Serpas”) on 9
November 2000, at which Sgt. Hebert offered nothing which would tend to
mitigate, justify, or explain his behavior, Chief Serpas
had recommended that the violation be sustained and that Sgt. Hebert receive a
letter of reprimand and loss of detail privileges for thirty days. In a letter
dated 6 December 2000, Superintendent Pennington informed Sgt. Hebert that he
was imposing the recommended penalty. The letter closed by advising Sgt. Hebert
that “any future violations of a similar nature will result in far more severe
disciplinary action taken by this office.”
Sgt. Hebert timely appealed the action taken against
him to the Commission. Upon receiving notice of that appeal, the NOPD filed a Motion for Summary Disposition. Therein, it
argued that Sgt. Hebert's appeal should be dismissed on the grounds that “this
Commission has continuously excluded from review those disciplinary actions,
which have resulted in letters of reprimand.” In addition, the NOPD, citing Sterling v. Board of Commissioners, 527
So.2d 1122 (La.App. 1 Cir.1988), asserted that a civil service commission lacks
jurisdictional authority to render a decision regarding the private employment
of civil servants on off-duty hours. Sgt. Hebert opposed the NOPD's motion, arguing that a letter of reprimand
constitutes a “disciplinary action” subject to appeal to the Commission
pursuant to Article X of the Louisiana Constitution of 1974. The NOPD filed a reply memorandum, to which Sgt. Hebert filed a
response wherein he requested that the Commission grant oral argument in the
matter.
The Commission denied Sgt. Hebert's request for oral
argument and on 26 April 2001, rendered the following decision:
Appellant has appealed a letter of reprimand and the
suspension of private detail privileges. The Commission has reviewed the pleadings
filed by the parties. The actions which appellant is appealing are not set
forth as disciplinary actions by the Rules of the Commission and therefore
cannot be appealed to the Commission. The Motion for Summary Disposition is
hereby granted and the case is dismissed.
Sgt. Hebert filed this appeal in response to that
decision. In addition, Sgt. Hebert filed a Petition for Review and Damages in
the Civil District Court as a protective measure.FN1
FN1. While Sgt. Hebert believes that an
appeal to this court is the correct procedural vehicle, he notes that in a
similar case pending in this court, the NOPD has
argued that the denial of an appeal by the commission is not appealable to this
court, but instead must be appealed to the district court. As this issue had
not been resolved by this court, Sgt. Hebert filed suit in the district court
in addition to pursuing this appeal.
Although no
specific rule was referenced in the Commission's decision that summarily
dismissed Sgt. Hebert's appeal, it was apparently relying on Rule II, Section
4, paragraph 4.1, relative to appeals,FN2 which provides, in pertinent part, as
follows:
FN2. This rule was specifically referred to
by the NOPD in its brief to this Court. Although the NOPD incorrectly labeled it as Rule 4.1, it is clear from
the copy of the rule attached to its brief to this court that the NOPD was actually referring to Rule II, Section 4, paragraph 4.1.
Regular employees in the classified service shall
have the right to appeal disciplinary actions to the Commission, including
dismissal, involuntary retirement, demotion, suspension, fine or reduction in
pay. However, a demotion, reinstatement to a lower
classification, transfer, reduction in pay or layoff resulting from the
application of the provisions of Rule XII governing layoffs shall not be
considered a disciplinary action and this shall not warrant an appeal
....(amended June 10, 1982; May 19, 1888[sic], effective June 1, 1988). [emphasis added]
Additionally, the letter of reprimand sent to Sgt.
Hebert by the appointing authority mentioned that his conduct was contrary to
the standards prescribed by Commission Rule IX, entitled Disciplinary Actions.
We believe that this rule is also relevant to the question before us. Section
1, paragraph 1.1 of that Rule, relative to Maintaining Standards of Service,
provides as follows:
When an employee in the classified service is unable
or unwilling to perform the duties of his/her position in a satisfactory
manner, or has committed any act to the prejudice of the service, or has
omitted to perform any act it was his/her duty to perform, or otherwise has
become subject to corrective action, the appointing authority shall take
action warranted by the circumstances to maintain the standards of
effective service. The action may include one or more of the following:
(1) removal from the service.
(2) involuntary retirement.
(3) reduction in pay within
the salary range for the employee's classification, subject to the provisions
of Rule IV, Section 8.
(4) demotion to any position of a lower classification
that the employee is deemed by the appointing authority and the Director to be
competent to fill, accompanied by a reduction in pay, which is within the
salary range for the lower classification, subject to the provisions of Rule
IV, Section 8.
(5) suspension without pay not
exceeding one hundred twenty (120) calendar days.
(6) fine.
(as amended June 10, 1982,
effective June 10, 1982)[emphasis added]
The Commission's jurisdiction is found in Article X of
the Louisiana Constitution of 1974 (“the Constitution”). Article X, § 8 of the
Constitution provides as follows:
No person who has gained permanent status in the
classified state or city civil service shall be subjected to disciplinary
action except for cause expressed in writing. A classified employee
subjected to such disciplinary action shall have the right of appeal to the
appropriate commission pursuant to Section 12 of this Part. The burden of proof
on appeal, as to the facts, shall be on the appointing authority. [emphasis added]
Article X, § 12(B) of the Constitution, in turn,
provides:
Each city commission established by Part I of this
Article shall have the exclusive power and authority to hear and decide all
removal and disciplinary cases, with subpoena power and power to administer
oaths. It may appoint a referee to take testimony, with subpoena power and
power to administer oaths to witnesses. The decision of a commission shall be
subject to review on any question of law or fact upon appeal to the court of
appeal wherein the commission is located, upon application filed with the
commission within thirty days after its decision becomes final. [emphasis added]
The term “disciplinary action” is not defined in the
Constitution.
Sgt. Hebert
lists two assignments of error in this appeal. First, he alleges that the
Commission committed an error of law when it denied his right to appeal the
letter of reprimand. Second, he alleges that the appointing authority erred in
disciplining him with a letter of reprimand.FN3
FN3. We decline to address this assignment
of error, as this court is not the court of original review regardless of who
prevails in this appeal.
Sgt. Hebert argues that letters of reprimand are
standard forms of discipline within the NOPD and are
almost always the first level of disciplinary action taken by the Department.
He states that while such letters were previously only temporarily placed in a
civil servant's record, their temporary nature was abandoned when the current
administration came into office at the Department, and the letters have become
permanent on a police officer's records. Sgt. Hebert added that the letters are
often used as “first offenses” at subsequent disciplinary hearings for the
purpose of sentence enhancement and that the letters have been used against an
officer when deciding on a promotion and other career enhancement, thereby
affecting an officer's retirement and pension. Finally, he states that letters
of reprimand have been cited by the NOPD as the
reason for transferring an officer into a less desirable position with lower
pay and fewer benefits. In sum, Sgt. Hebert argues that letters of reprimand
are “disciplinary actions” from which appeals to the Commission are
constitutionally allowed, especially when a letter orders further disciplinary
action, which in this case was the suspension of detail privileges for thirty
days.
Citing Head v. Department of Highways,
166 So.2d 346 (La.App. 1 Cir.1964), Sgt. Hebert asserts that the
constitutionally created jurisdiction of the Commission cannot be extended or
limited by the Commission's own self-made rules. The First Circuit in Head
stated that:
“The jurisdiction of the Commission must be adjudged
upon the Constitutional provisions and cannot be affected by the enactment of
any rule, even though the Commission does have rule-making power in connection
with its prescribed duties. The rule-making power, [sic] was never intended to
allow the Commission by rule to change the boundaries of its jurisdiction as
set forth in the Constitution. ... In order to ascertain the jurisdiction of
the Commission, the constitutional provision fixing such jurisdiction is the
one and only source.”
Accordingly, the court declared unconstitutional
Commission Rule 12.9, which provided that “[i]f a
classified employee is retired he is considered as separated without prejudice
and does not have a right of appeal to the Commission.” The court found Rule
12.9 to be unconstitutional on its face because it attempted to fix the
jurisdiction of the Commission and to deny the right of appeal to a classified
employee who was removed and under the law had a perfect right to question such
removal as being without legal right or just cause.
In addition, Sgt. Hebert claims that the NOPD's action of suspending him from working paid details
for thirty days was also a “disciplinary action” within the Commission's
exclusive constitutional grant of jurisdiction. He argues that Sterling,
supra, cited to the Commission by the NOPD for
the proposition that the Commission lacks jurisdiction to render a decision
regarding the private employment of off-duty officers, is distinguishable to
the case at hand for several reasons. First, he alleges that paid details are
strictly controlled by and must be approved by the Department. In addition, he
claims that paid details are specifically defined by the NOPD's
rules, in Administrative Standard Operation Procedure (“ASOP”)
85.0 FN4, as not being “outside employment.”
FN4. ASOP 85.0
provides:
PURPOSE
The
purpose of this ASOP is to establish guidelines for
the working of details and outside employment by Department members.
DEFINITIONS
1.
Paid Detail: A paid detail is the employment of any commissioned member of the
Department by another individual, business, establishment, or organization
where the member is privately paid and is primarily performing the duties of a
police officer, either in plainclothes or in uniform.
2. Outside
Employment: Outside Employment is the employment of any member of the
Department by another individual, business, establishment, or organization, or
on a self-employed basis, where the member is privately paid and is primarily
performing duties of a non-police function.
3. As
indicated on the Paid Detail/Outside Employment Authorization Form, paid
details and outside employment are classified into four different categories:
short term paid detail, permanent paid detail, short term outside employment,
and permanent outside employment. Short term paid details and short term
outside employment refer to details and outside employment worked on a
non-recurring schedule. Permanent paid details and permanent outside employment
refer to paid details and outside employment worked on a recurring schedule for
the same employer.
GENERAL
4.
Members wishing to work any paid details or engage in outside employment shall
complete a New Orleans Police Paid Detail/Outside Employment Authorization Form
# 21 prior to working the paid detail/outside employment. Paid Detail/Outside
Employment Authorization Forms are available in each unit and the Personnel
Division and shall be completed and disseminated as indicated on the form. All
requests for outside employment including details must be made to and approved
by the Superintendent of Police before such employment may begin.
The NOPD contends that a
letter of reprimand is not an appealable disciplinary action pursuant to the
jurisdiction granted to the Commission in Article X, §§ 8 or 10 of the
Constitution or Rule II, Section 4, paragraph 4.1 of the Commission. Instead it
characterizes a letter of reprimand as a legitimate exercise of managerial
discretion that allows the Appointing Authority to correct minor problems before
they grow into major ones. The NOPD alleges that the
utility of a letter of reprimand as a managerial tool would be impaired if such
is held to be an appealable personnel action. The NOPD
does not dispute that the temporary nature of letters of reprimand has been
abandoned and, in fact, admits that it has opted to maintain written reprimands
in an officer's file since the 1990's. It stated, however, that the “mere
theoretical effect” of the letter of reprimand on possible promotions or future
employment is too abstract to constitute a property interest or to otherwise
justify a right to an appeal.FN5
FN5. In response to this argument, Sgt.
Hebert counters that, in his particular case, after receiving the letter of
reprimand, he was transferred to a less prestigious assignment within the
Department resulting in his receiving less pay, less authority, and the loss of
use of an unmarked police vehicle. He alleges that Major James Treadway, his Commander at the Public Integrity Division,
explained to him that he must be transferred because disciplinary action had
been taken against him. Although Sgt. Hebert admits that these “facts” are not
properly before this Court, he offers them in response to the NOPD's assertion that he has yet to suffer any actual loss
as a result of the letter of reprimand and he asks that his appeal be granted
so that he may present such evidence to the Commission.
In addition, the NOPD claims
that allowing letters of reprimand to be appealable will open the floodgates of
litigation to the Commission and to this Court.
In support of its arguments, the NOPD
relies primarily on the case of McGuire v. Department of Aging, 140 Pa.Cmwlth. 378, 592 A.2d 830 (1991).
The Commonwealth Court of Pennsylvania held therein that written reprimands
were not appealable personnel actions under
In opposition to Sgt. Hebert's claim that ASOP 85.0 specifically defines paid details as not being
“outside employment,” the NOPD argues that the rule
actually provides the exact opposite. Further, because an officer is required
to take action when confronted with a crime in progress even when off-duty, the
Appointing Authority is justified in exercising limited control over when,
where, and what type of paid detail or other outside employment its officers
are working.
We
initially note that we agree with the First Circuit's pronouncement in Head
that the provisions of the Louisiana Constitution fixing the jurisdiction of
the Commission are the one and only source relevant to ascertaining the
jurisdiction of the Civil Service Commission. Accordingly, McGuire is
irrelevant to the determination of the jurisdiction of the Commission.
Article X, § 8 of our Constitution provides that no
permanent status city civil service employee shall be subjected to
“disciplinary action” except for cause expressed in writing and that any
employee subjected to such disciplinary action shall have the right of appeal
to the appropriate commission. As we noted earlier, the Constitution contains
no definition of disciplinary action. Commission Rule II, Section 4, paragraph
4.1, provides that regular employees in the classified service shall have the
right to appeal disciplinary actions to the Commission including
dismissal, involuntary retirement, demotion, suspension, fine, or reduction in
pay. Similarly, Commission Rule IX, Section 1, paragraph 1.1 provides that the
Appointing Authority shall take action warranted by the circumstances to
maintain the standards of effective service and that such action may include
the six actions listed in the previous sentence. By their use of the words
“including” and “may include,” neither Commission Rule II nor Rule IX purports to list the exclusive forms
of disciplinary action that can be taken by an Appointing Authority against a
regular employee and to which that employee would have a right of appeal to the
Commission. The fact that the Commission may have had a longstanding rule to
exclude disciplinary actions resulting in letters of reprimand from its review
is irrelevant. While that practice may have been justified in the past when the
written reprimands were only temporary in nature, it is no longer appropriate
since reprimands have become a permanent part of a police officer's files. Even
if we were to rely on McGuire as persuasive authority, a careful reading
of that opinion reveals that it actually supports the position advocated by
Sgt. Hebert. The McGuire court noted that the written reprimands at
issue therein were remedial in nature and were removed from the employee's file
after one year if no further incidents warranting discipline occurred. It
distinguished those written reprimands from performance evaluation reports,
which remained in an employee's file and affected future promotions,
assignments, and “in a very real sense” the future of an employee's career and
thus, “with good reason,” were appealable personnel actions. McGuire, 140 Pa.Cmwlth. at
382-384, 592 A.2d at 832.
In addition, the McGuire court held that
“should a future appealable personnel action be based, in whole or in part, on
the letter of reprimand, petitioners would be entitled to challenge the
reprimand ancillary to the properly appealed personnel action.” McGuire,
140 Pa.Cmwlth. 378 at 386, 592 A.2d at 833.
Although the NOPD asserts
that Sgt. Hebert has the same procedural safeguards as that found in
In reaching this conclusion, we are mindful that in Roby
v. Department of Finance, 496 So.2d 1096 (La.App. 4 Cir.1986), we stated in
dicta that “[t]he Commission correctly declined to consider the May 8, 1984
reprimand in its decision as reprimands are not appealable to the Civil Service
Commission.” As we made that statement when a letter of reprimand was only
temporary in nature, it is not particularly relevant today when a letter of
reprimand has attained a permanent place in an officer's file.
The public
puts its trust in the police department as a guardian of its safety, and it is
essential that the appointing authority be allowed to establish and enforce appropriate
standards of conduct for its employees sworn to uphold that trust. Newman v. Department of Fire, 425 So.2d 753 (La.1983); Stevens
v. Department of Police, 2000-1682 (La.App. 4 Cir. 5/9/01), 789 So.2d 622.
The Commission should give heightened regard to appointing authorities that
serve as special guardians of the public's safety and operate as quasi-military
institutions where strict discipline is imperative. Stevens,
supra at p. 8, 789 So.2d at 627. The Commission is in the best
position to determine whether any disciplinary action taken is within the
appointing authority's legal discretion, and the Commission's determination is
subject to appellate review by this Court.
The risk that our holding is likely to increase the number
of appeals taken to the Commission is not material to this Court.
Finally,
Sgt. Hebert's argument that paid details are not outside employment and thus
any NOPD action suspending him from working paid
details is within the Commission's constitutional grant of jurisdiction is
unpersuasive. He has failed to offer any support of his strained interpretation
that ASOP 85.0 specifically defines paid details as
not being outside employment. Our reading of that provision indicates that
while there are separate definitions for “paid details” and “outside
employment,” they both refer to the off-duty employment of officers. In fact,
paragraph 4 of ASOP 85.0 states that “[a]ll requests for outside employment including details
must be made to and approved by the Superintendent of Police before they
begin.” [emphasis added]. Accordingly, we hold that
any suspension of detail privileges is beyond the Commission's constitutional
grant of jurisdiction.
The decision of the Civil Service Commission of the
City of
REVERSED AND REMANDED.
La.App. 4 Cir.,2001.
Hebert v.
805 So.2d 345, 2001-1165 (La.App. 4 Cir. 12/19/01)
END OF DOCUMENT
Court of
Appeal of
Raymond C. BURKART, Jr.
v.
NEW
ORLEANS POLICE DEPARTMENT.
No. 2001-CA-1237.
Feb. 13, 2002.
Police officer
appealed refusal of municipal civil service commission to review a decision of
the superintendent of police to issue a letter of reprimand to him. The Court
of Appeal, Byrnes, C.J., held that officer was
entitled to appellate review of letter of reprimand by municipal civil service
commission.
Reversed and
remanded.
Adam S.
Lambert,
Court composed of Chief Judge WILLIAM H. BYRNES III,
Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY.
BYRNES, Chief Judge.
Appellant, Raymond Burkart,
Jr., appeals the refusal of the Civil Service Commission to review a decision
of the appointing authority to issue a letter of reprimand to him. We reverse.
Appellant is a major with the New Orleans Police
Department. The letter of reprimand complained of was issued by Richard
Pennington, Superintendent of Police on February 28, 2001. Appellant is also an
attorney. The letter of reprimand contains a finding that appellant represented
a plaintiff in civil litigation against the City of
The Civil Service Commission does not review letters
of reprimand. In its written dismissal of appellant's appeal, the Commission
stated that:
The action which appellant is appealing is not set
forth as a disciplinary action by the rules of the Commission and therefore
cannot be appealed to the Commission.
Appellant complains that while such letters may have
been only temporary in the past they now form a permanent part of the
employment record and may be treated as “prior offenses” in subsequent
disciplinary proceedings. Accordingly, appellant contends that letters of
reprimand should be treated as “disciplinary actions” as defined by La. Const.
Art. X. Therefore, appellant asserts that he has a right to have the Civil
Service Commission review the letter of reprimand just as he would any other
“disciplinary action.” We agree.
No person who has gained permanent status in the
classified state or city service shall be subjected to disciplinary action
except for cause expressed in writing. A classified employee subjected to such
disciplinary action shall have the right of appeal to the appropriate
commission pursuant to Section 12 of this Part. The burden of proof on
appeal, as to the facts, shall be on the appointing authority. [Emphasis
added.]
Similarly,
Each city commission established by Part I of this
Article shall have the exclusive power and authority to hear and decide all
removal and disciplinary cases, with subpoena power and power to administer
oaths. It may appoint a referee to take testimony, with subpoena power and
power to administer oaths to witnesses. The decision of a commission shall be
subject to review on any question of law or fact upon appeal to the court of
appeal wherein the commission is located, upon application filed with the
commission within thirty calendar days after its decision becomes final.
[Emphasis added.]
Accordingly, if the letter of reprimand can be
considered to be a “disciplinary action,” appellant has a constitutional right
of appeal to the Civil Service Commission. This constitutional right of appeal
cannot be limited or abrogated by commission rules, regulations, custom or
practice.
Neither appellant nor appellee have
cited any cases concerning letters of reprimand and we can find none. The issue
appears to be res nova. On the one hand we are concerned about the flood
of hearings and litigation that may arise as a result of a holding that civil
service employees have the right of appeal from letters of reprimand. On the
other hand, the same could be said of demotions, suspensions, terminations, and
wage penalties where the right of appeal is not disputed. We are also mindful
of the City's argument made below to the effect that letters of reprimand do
not rise to the level of impact on an employee's career that was intended to
invoke the protections of the public service commission, in effect a de minimis argument. However, we are also aware of the
analogy to attorney and judicial conduct where reprimands and censure are
considered forms of discipline. Following the reasoning of this analogy and the
common sense understanding of the term “disciplinary action” we must find that
the term “disciplinary action” as used in the constitutional provisions quoted
earlier in this opinion is broad enough to include the disciplinary action
complained of by the appellant in the instant case. We note that the City does
not contest the appellant's argument that the letter of reprimand will remain
as a permanent black mark in his personnel record and might be weighed against
him when employment decisions were made affecting him in the future at a
time when appellant would have no means of correcting the record.
Article X, § 8 and § 12 of the Louisiana Constitution
mandates that the Civil Service Commission “hear and decide” disciplinary
cases. Implicit in this grant of power is the authority to reverse or modify a
penalty, but only to the extent necessary to effectuate the purposes of the
Civil Service system. Otherwise, such power to intervene in personnel decisions
would infringe upon the constitutional authority of the executive branch of
government to exercise its discretion in personnel matters.
For the foregoing reasons, we find that the letter of
reprimand in this case constitutes “disciplinary action” and that the appellant
has a right to appeal that decision to the Commission. Accordingly we reverse
the Commission's dismissal of appellant's appeal and remand this matter to the
Commission for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
La.App. 4 Cir.,2002.
Burkart v.
811 So.2d 42, 2001-1237 (La.App. 4 Cir. 2/13/02)
END OF DOCUMENT