NOT DESIGNATED FOR PUBLICATION

Transcription

1 NOT DESIGNATED FOR PUBLICATION HERMAN FRANKLIN VERSUS DEPARTMENT OF POLICE NO CA-1581 COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO JAMES F. MCKAY III JUDGE (Court composed of Judge Patricia Rivet Murray, Judge James F. McKay III, Judge Terri F. Love) LOVE, J., CONCURS AND ASSIGNS REASONS DONOVAN A. LIVACCARI LIVACCARI VILLARRUBIA LEMMON, LLC 101 West Robert E. Lee Boulevard Suite 402 New Orleans, Louisiana Counsel for Plaintiff/Appellant NANNETTE JOLIVETTE-BROWN CITY ATTORNEY OF ORLEANS PARISH NOLAN P. LAMBERT SENIOR CHIEF DEPUTY CITY ATTORNEY OF ORLEANS PARISH JAMES B. MULLALY DEPUTY CITY ATTORNEY OF ORLEANS PARISH ISAKA WILLLIAMS ASSISTANT CITY ATTORNEY OF ORLEANS PARISH MARY KATHERINE TAYLOR ASSISTANT CITY ATTORNEY OF ORLEANS PARISH 1300 Perdido Street City Hall - Room 5E03 New Orleans, Louisiana Counsel for Defendant/Appellee AFFIRMED

2 In this case, the appellant, Herman Franklin, appeals a decision of the Civil Service Commission for the City of New Orleans upholding the discipline imposed upon him by the New Orleans Police Department. We affirm. FACTS AND PROCEDURAL HISTORY Pursuant to an anonymous complaint to the Public Integrity Bureau on September 25, 2007, an investigation of Officer Herman Franklin was instituted. On October 22, 2007, the appointing authority (NOPD) requested a sixty day extension pursuant to Civil Service Rule IX, Section 1, and paragraph 1.4, which was granted. The investigation revealed that Officer Franklin worked an off-duty paid detail at a Walgreens Drug Store on eight separate occasions at the same time he was on duty with the New Orleans Police Department. On February 20, 2008, Sergeant Daniel Wharton completed an NOPD incident report. Sergeant Wharton also contacted the Orleans Parish District Attorney s Office and informed Assistant District Attorney Robert White of the alleged violations relative to payroll fraud. This was done at the request of 1

3 Assistant Superintendent Anthony Cannatella. On August 19, 2008, Assistant District Attorney White sent a letter to then Superintendent Warren Riley stating that Officer Franklin was accepted into the voluntary diversion program of the District Attorney s Office. Thereafter, Officer Franklin successfully completed the diversionary program. On April 16, 2009, Sergeant Wharton submitted a request for disciplinary hearing to Deputy Chief Kirk Bouyelas. Sergeant Wharton also submitted a supplemental criminal investigation police report concluding that Officer Franklin was in violation of La. R.S. 14:138, relative to public payroll fraud. On May 20, 2009, a pre-disciplinary hearing was held and the appointing authority sustained the violations committed by Officer Franklin. Officer Franklin received an eighty (80) day suspension. He appealed this discipline to the Civil Service Commission arguing that the time period provided in La. R. S. 40:2531 for investigations was not adhered to and that he was prejudiced by the delay in the investigation. The Commission denied the appeal, thus upholding the suspension. Officer Franklin now appeals to this Court. DISCUSSION On appeal, Officer Franklin contends that the Civil Service Commission erred when it concluded that the administrative remedies outlined in La. R.S. 40:2531 were not available to him because the administrative investigation became criminal when Assistant Superintendent Cannatella ordered the matter criminally 2

4 investigated thereby tolling the Sixty Day requirement pending the completion of the criminal investigation. The Civil Service Commission has the exclusive power and authority to hear and decide all removal and disciplinary cases. The Commission s decision is subject to review on any question of law or fact upon appeal to the court of appeal. La. Const. art X, 12(B). The review by appellate courts of the factual findings in a civil service case is governed by the manifest error or clearly wrong standard. Russell v. Mosquito Control Bd., , pp. 7-8 (La.App. 4 Cir. 9/27/06), 941 So.2d 634, 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. Id. However, a mixed question of fact and law should be accorded great deference by appellate courts under the manifest error standard of review. Id. In Wyatt v. Harahan Municipal Fire and Police Civil Service Board, , pp. 4-5 (La.App. 5 Cir. 7/25/06); 935 So.2d 849, 852, an officer was terminated from the Harahan Police Department because of three disciplinary actions for his failure to report an accident timely, his misuse sick time, and for his submission of a false police report concerning vandalism of his police unit. The officer appealed his termination alleging that the disciplinary investigation took more than sixty days as required by La. R.S. 40:2531 (B)(7), and therefore the disciplinary proceeding should be set aside. The Fifth Circuit sustained the officer s termination, finding no violation of La. R.S. 40:2531 because the preliminary 3

5 investigation of the officer that led to a referral to the district attorney for criminal prosecution was an inquiring into criminal activity and was not governed by the sixty day rule and the subsequent disciplinary investigation was completed within sixty days. Id. The Court found that the disciplinary action did not begin until the completion of the criminal prosecution by the district attorney s office, and that the subsequent investigation was completed within sixty days at p. 6, 935 So.2d at 853. Thus, the start of the investigation for purposes of the sixty day rule did not begin until the completion of the criminal matter, and any investigation into the facts prior for the submission of the case to the district attorney s office was not governed by the sixty day rule because it was an inquiry into criminal activity. Id. We have a similar situation in the instant case. The start of the administration investigation did not begin until the completion of the criminal investigation by the Orleans Parish District Attorney s Office. The criminal investigation was not completed until the Public Integrity Bureau was informed of Officer Franklin s successful completion of the diversionary program. This action did not occur until April 9, 2009, when Sergeant Wharton reviewed a letter dated February 6, 2009 addressed to the appellant from the district attorney s office, which informed the appellant that he had successfully completed the diversionary program. Thus, the start of the administrative investigation began on April 9, The administrative investigation ended on April 16, 2009, when Sergeant Wharton submitted a request to Deputy Chief Kirk Bouyelas for a pre-disciplinary 4

6 hearing. Therefore, the investigation was within the sixty day time period. Accordingly, the appellant s assertion that he was not afforded the remedies outline in La. R.S. 40:2531 is without merit. CONCLUSION For the foregoing reasons, we affirm the judgment of the Civil Service Commission. AFFIRMED 5