1616111.114 to] " I
FIRST CIRCUIT
2025 CA 0083
ALEX MIKKELSEN
VERSUS
Judgment Rendered:
On Appeal from the State of Louisiana Civil Service Commission
Docket No. S- 18851
Honorable David L. Duplantier, Chairman Brent C. Frederick, Referee
C. Theodore Alpaugh, III Counsel for Plaintiff/Appellant Claude A. Schlesinger Alex Mikkelsen New Orleans, Louisiana
Edward F. Harold Counsel for Defendant/ Appellee Lawrence J. Sorohan, II Flood Protection Authority - East New Orleans, Louisiana
BEFORE: McCLENDON, C-3.,, GREENE AND STROMBERG, 33. McCLENDON, U.
A permanent -status civil service employee seeks review of a Civil Service
Commission decision affirming his termination. For the reasons that follow, we affirm.
Alex Mikkelsen began his full- time employment with the East Jefferson Levee
District Police Department, a division of the Southeast Louisiana Flood Protection
Authority -East, ( hereinafter " SLFPA- E"), in May 2020. Officer Mikkelsen, who served as
a permanent -status police officer, worked the overnight " C Platoon" from 5: 00 p. m. to
5: 00 a. m. alongside Officer Jonathan Downing, under the supervision of Sergeant Gerard
Duplessis and Lieutenant Coy Canulette. Officer Mikkelsen' s duties included patrolling
and conducting police activities in Jefferson Parish, with a focus on the areas along the
Mississippi River and Lake Pontchartrain.
SLFPA- E' s headquarters, located at 1100 Reverend Richard Wilson Drive in Kenner,
Louisiana, is known as the " Safehouse." Officers report to the Safehouse at the beginning
of each shift for roll call and to discuss their assignments for that day, which usually lasts
about thirty minutes. Thereafter, there are no specific duties that require officers to be
at the Safehouse.
In March 2022, SLFPA- E' s Information Technology Department (" IT Department")
noticed a sharp increase in data usage coming from the Safehouse, and an internal
investigation began in order to determine the reason for the increase. The investigation
revealed that the data spikes occurred during C Platoon' s shifts. The IT Department also
identified the devices using the bandwidth as Xbox gaming systems and found large
amounts of incoming data were from Xbox Live. The IT Department determined that
Netflix content was also being streamed.
Based on this information, Terri Durnin, the Captain/ District Commander for the
East Jefferson Levee District Police Department, began to monitor, among other things,
the swipe card access required to enter the Safehouse and the security camera footage
around the perimeter of the Safehouse. According to Captain Durnin, it became clear
2 that all of the C Platoon officers were spending an inordinate amount of time at the
Safehouse, which coincided with the dates of the increased internet activity.'
Following this investigation, on October 19, 2022, Kelli Chandler, Regional Director
for SLFPA- E, issued a pre -deprivation notice to the officers involved, including Officer Mikkelsen, under Civil Service Rule 12. 7, advising that discipline up to and including
termination was being considered for, among other things, alleged dereliction of duty. The notice also indicated that "[ t] he badge data for the investigatory period reveals that
there is a clear correlation between the excessive data usage dates and the movements
of [Officer] Mikkelsen coming and going from the EILD PD Safehouse premises and time -
stamped video from the installed camera system was matched[.]" The notice also
provided specifics on five dates: May 20, 2022; May 26, 2022; May 30, 2022; May 31,
2022; and June 22, 2022. The notice further indicated that " the only recognized and
permissible reasons" for an officer to be at the Safehouse was if an officer was " off -
assignment" to refuel or obtain personal items, to write reports for previously handled service calls, for lunch breaks ( 30 minutes), authorized breaks ( 15 minutes), or restroom
breaks.
On October 26, 2022, Officer Mikkelsen submitted a written response through
counsel. After reviewing that response, Director Chandler issued a Final Disciplinary
Notice on October 31, 2022, terminating Officer Mikkelsen' s employment effective
November 1, 2022. The three other members of C Platoon were also terminated as a
result of the investigation.
Officer Mikkelsen timely appealed the disciplinary action to the Louisiana State Civil Service Commission ( the " Commission" }. A Referee conducted evidentiary hearings on
March 30, August 10, and August 11, 2023. Officer Mikkelsen also sought summary
disposition on the grounds that the pre -deprivation and final notices did not satisfy the requirements of Civil Service Rules 12. 7 and 12. 8.
I While Officer Mikkelsen maintained that the investigation did not involve anyone other than C Platoon employees, Captain Durnin testified that B Platoon, the other platoon that worked the night shifts not covered by C Platoon, were initially part of the investigation. The investigation also contained records of B Platoon activities. However, Captain Durnin testified that B Platoon "[ w] as out of it" after the data usage began to be compiled. With regard to B Platoon, Captain Durnin explained " it was one day, maybe two, and it wasn' t as high." Rather, high data usage occurred during C Platoon' s shift.
3 In a decision dated August 1, 2024, the Referee denied Officer Mikkelsen's motion
for summary disposition, finding that the notices satisfied Civil Service Rules 12. 7 and
12. 8. The Referee also upheld Officer Mikkelsen' s termination. 2 The Referee found,
among other things, that SLFPA- E proved Officer Mikkelsen, rather than patrolling his designated areas, spent an inordinate amount of time at the Safehouse on specific dates.
The Referee further found that the misconduct was " manifestly detrimental to the state
service" and warranted dismissal. Because Officer Mikkelsen did not file an application
to request that the Commission review the Referee' s decision, the Referee' s decision
became the final decision of the Commission, and is subject to appellate review by this
court. See LSA -Const. art. X, § 12. For clarity, we will refer to the Referee' s ruling and
findings as that of the Commission.
Officer Mikkelsen timely appealed the Commission's decision to this court. On
appeal, Officer Mikkelsen asserts six separate assignments of error, which we have
summarized into three assignments of error below:
1) Procedural Due Process / Notice Error The Commission erred in concluding that the pre -deprivation and final disciplinary notices complied with Civil Service Rules 12. 7 and 12. 8.
2) Lack of Cause for Discipline The Commission manifestly erred in concluding that there was cause for discipline because Officer Mikkelsen' s conduct did not violate SLFPA- E' s policy and/ or impair the efficient operation of the public service.
3) Excessive or Disproportionate Penalty Even if some misconduct occurred, the Commission acted arbitrarily or capriciously in affirming the termination because the discipline imposed was not commensurate with the alleged infractions and, therefore, constitutes an excessive penalty and an abuse of discretion.
LAW
Tenured or classified civil service status is a property right and cannot be taken
away without due process. See LSA -Const. art. I, § 2; Moore v. Ware, 2001- 3341 ( La.
2/ 25/ 03), 839 So. 2d 940, 948. As explained in Cleveland Bd. of Educ. v. Loudermill,
470 U. S. 532, 541, 105 S. Ct. 1487, 1493, 84 L. Ed. 2d 494 ( 1985), this due process right
for civil service employees is a constitutional guarantee.
2 Two other C Platoon officers appealed to the Commission, and the Commission also affirmed their terminations.
Il 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. LSA -Const.
art. X, § 8( A). " Cause" for the discipline of such an employee includes conduct prejudicial
to the public service or detrimental to its efficient operation. Kirk v. Dept of Health
and Hospitals, 2013- 1591 ( La. App. 1 Cir. 5/ 2/ 14), 147 So3d 202, 204. The employer
must prove by a preponderance of the evidence that the employee's conduct did, in fact,
impair the efficiency and operation of the public service in which the employee is
engaged. Id. at 204- 05.
A classified employee subjected to such disciplinary action shall have the right of
appeal to the appropriate Commission, and the appointing authority ( the employer of an
employee in classified civil service) bears the burden of proof on appeal as to the facts.
LSA -Const. art. X, § 8( A). Thereafter, the final decision of the Commission shall be
subject to review on any question of law or fact to the court of appeal wherein the
Commission is located. LSA -Const. art. 10, § 12( A).
Civil Service Commission decisions are subject to the same standard of review as
a decision of a district court. Johnson v. Dept of Health and Hospitals, 2000- 0071
La. App. 1 Cir. 2/ 16/ 01), 808 So. 2d 436, 438; see Usun v. LSU Health Sciences Ctr.
Med. Ctr., 2002- 0295 ( La. App. I Cir 02/ 14/ 03), 845 So. 2d 491, 494. On review, great
deference is given to the factual determinations of the Commission, and an appellate
court will not overturn those determinations in the absence of clear or manifest error.
Kirk, 174 So3d at 204. An appellate court should not reverse the Civil Service
Commission' s determination of the existence of cause for a disciplinary action unless the decision is arbitrary, capricious, or an abuse of discretion." Williams v. Orleans Levee
District,, Board of Commissioners, 2000- 0297 ( La. App. I Cir. 3/ 28/ 01), 784 So. 2d
657, 659, writ denied, 2001- 1730 ( La. 9/ 14/ 01), 796 So. 2d 686. However, with respect
to the Commission' s decisions as to jurisdiction, procedure, and interpretation of laws and
regulations, the judicial function is not so limited. Marcantell v. Dept of Transp. & Dev., 590 So. 2d 1253, 1256 ( La. App. 1 Cir. 1991). The " error of law" standard applies
to the legal aspects of a mixed question of law and fact presented in review of an
administrative decision. See Id.
5 When evaluating the Commission' s determination as to whether the disciplinary
action imposed is commensurate with the infraction, an appellate court should not modify
the Commission' s action unless it is arbitrary, capricious, or an abuse of discretion. Kirk,
147 So. 3d at 204, d!Wg Bannister v. Dept of Streets, 95- 0404 ( La. 1/ 16/ 96), 666
So. 2d 641, 647. " Arbitrary or capricious" means the absence of a rational basis in the
record for the action taken. Id.
DISCUSSION
Procedural Due Process/ Notice Error
On appeal, Officer Mikkelsen asserts that SLFPA- E, the appointing authority herein,
failed to comply with Civil Service Rules 12. 7 and 12. 8, which address the pre -deprivation
and final disciplinary notices, respectively. Rule 12. 7 provides that "[ w] hen an appointing
authority proposes to discipline or remove a permanent employee, the employee must
be given oral or written notice of the proposed action, the factual basis for and a
description of the evidence supporting the proposed action, and a reasonable opportunity
to respond." Further, Rule 12. 8( b) requires the appointing authority to "describe in detail
the conduct for which the action is being taken including, where pertinent, dates, times,
places, and names of persons directly involved in or affected by such conduct[.]"
Rule 12. 7 codifies the principle elucidated in Loudermill, "i. e. due process entitles
an employee threatened with termination to notice of the charges lodged against him,
and an opportunity to tell his side of the story before termination." Lange v. Orleans
Levee Dist., 2010- 0140 ( La. 11/ 30/ 10), 56 So. 3d 925, 930. The purpose of the pre-
termination hearing is not to determine with certainty whether termination is appropriate;
instead, the hearing serves as " an initial check against mistaken decisions—essentially, a
determination of whether there are reasonable grounds to believe that the charges
against the employee are true and support the proposed action." Id. at 930- 31, quoting
Loudermill, 470 U. S. at 545- 46, 105 S. Ct. at 1487. When a civil service employee is
entitled to a full evidentiary hearing after termination, and retroactive relief such as
reinstatement is available, pre -termination due process is satisfied by notice and an
opportunity to respond. Lange, 56 So. 3d at 931. In other words, only the barest of a
1,- pre -termination procedure is required when an elaborate post -termination procedure is
Further, Rule 12. 8 requires that a permanent employee must be given written
notice of the action before the action becomes effective, and the notice must " describe
in detail the conduct for which the action is being taken." Lazard v. Orleans Levee
Dist., 2014- 1423 ( La. App. 1 Cir. 4/ 24/ 15), 2015 WL 1882664 at * 3 ( unpublished). This
rule " plainly comprehends a fair and clear statement of the misconduct of the employee
including, wherever pertinent, times, dates, places[,] and amounts." Id. ( internal
quotation and citation omitted). The purpose of this rule is to apprise the employee in
detail of the charges and limit any subsequent proceedings to the stated reasons. Id.
internal citation omitted.)
On appeal, Officer Mikkelsen avers that neither the October 19, 2022 pre -
deprivation notice nor the October 31, 2022 final disciplinary notice satisfy the
requirements of Rules 12. 7 and 12. 8. He maintains that the notices, while they provide
broad timeframes of date usage, do not indicate who used the data or for what purpose.
Officer Mikkelsen also contends that SLFPA- E failed to show what specific policy he violated. Officer Mikkelsen maintains that although the notices indicated that he,
along with the other employees, violated Subsections D, F, and G found in Section 7 of
the SLFPA- E Employee Handbook (" the Handbook ), 3 and certain provisions of the East
Jefferson Levee District Police Department Code of CondUCt, 4 neither of the notices
specify how any of the referenced provisions were violated. Rather, they merely indicate
that Officer Mikkelsen, as well as his fellow employees, spent an inordinate amount of
3 Subsection D provides that " Failure to perform assigned duties or to follow a supervisor's instructions may be cause for disciplinary action up to and including termination." Subsection F provides that " levee district equipment for personal use is prohibited. No private projects for individuals shall be done on levee district premises or while on duty." Subsection G provides that "The following activities will not be tolerated and will be cause for the recommendation of disciplinary action, up to and including termination: Willful destruction or theft of Agency property or the property of others on Levee District property, operation of equipment the employee is not trained to use; unauthorized modification or unauthorized use of SLFPA- E or levee district property or the property of others."
4 Officer Mikkelsen notes that the two notices also reference the East Jefferson Levee District Police Department Code of Conduct, including provisions that address personal and immoral conduct ( Articles 25 and 27), instructions from an authoritative source ( Article 54), unsatisfactory performance ( Article 55), disobedience of orders ( Article 56), and violation of rules ( Article 24). Further, Article 5 of the Code of Conduct provides that members are " deemed to have knowledge of these rules[.]"
0 time at the Safehouse. Officer Mikkelsen concludes that SLFPA- E failed to comply with
Civil Service Rules 12. 7 and 12. 8.
In opposition, SLFPA- E maintains that Officer Mikkelsen' s claims of insufficiency of
the notices are belied by the fact that his counsel wrote a seven -page, single- spaced
response to the pre -deprivation notice. 5 SLFPA- E further contends that review of the
notices makes plain that it complied with the Civil Service Rules. SLFPA- E avers that the
notices discuss in detail the conduct, Xbox usage, and inordinate amount of time Officer
Mikkelsen spent in the Safehouse. SLFPA- E also avers that the notices describe the
origins and conduct of the investigation, the dates and times of the misconduct, and the
rules and guidelines at issue. SLFPA- E concedes that the notices did not identify who
was responsible for the data use among C Platoon at any given time. However, SLFPA- E
asserts the failure to identify the user does not undermine the conclusion that all members
of C Platoon were present when Xboxes were being used in the Safehouse, and no one
else was present in the Safehouse at those times.
Further, SLFPA- E avers that the two cited Civil Service Rules do not require an
appointing authority to identify any personnel policy, rule, or regulation in a disciplinary
notice, especially one narrowly tailored to the specific conduct. Rather, SLFPA- E asserts
that the question in a civil service hearing is whether the conduct constituted " cause," or
conduct that impairs the efficient and orderly operation of the public service. See Civil
Service Rules 12. 2( b) and 1. 5. 2. 01. 6 Considering the foregoing, SLFPA- E concludes that
the Commission properly determined that the notices provided sufficient detail.
Here, both the pre -termination and final disciplinary notices sent to Officer
Mikkelsen indicate the Safehouse is considered closed after 4: 30 p. m. each day, and while
night shift police platoons are allowed access, such access " should be infrequent." Both
notices provide that "[ a] ll night shift police personnel have patrol assignments, both
5 SLFPA- E contends that Officer Mikkelsen never asserted that he misunderstood the charges against him, denied the conduct, or claimed the conduct was authorized. Rather, SLFPA- E avers that Officer Mikkelsen' s response was the general proposition that he had responsibilities that would at some points require him to be at the Safehouse.
6 Civil Service Rule 12. 2( b) provides that "[ a] n appointing authority may discipline or remove a permanent employee for cause." Civil Service Rule 1. 5. 2. 01 defines cause as " conduct which impairs the efficient or orderly operation of the public service." proactive and reactive, encompassing their entire work shifts, allowing for brief periods
for lunch or break which may or may not be spent at the [ Safehouse]." Further, the
notices detail the purported dates, times, and duration Officer Mikkelsen was present at
the Safehouse. For example, the May 20, 2022 date, which is referenced in both notices,
indicates:
Safehouse video surveillance shows Mr. Mikkelsen to be in the EILD PD Safehouse facility between the hours of 5: 20 p. m. and 8: 06 p. m. During this time frame Mr. Mikkelsen is seen entering the facility with a backpack and an air fryer. Total time of approximately 2 hours and 45 minutes. ( The Daily Recap log shows that you were assigned to patrol " Lake/ River," the Safehouse is not listed as part of your assignment).
There are additional dates in both notices that provide similar details. Both notices
indicate that " the gaming activity coincides with the dates and times that you and the
other members of Platoon C were captured on Safehouse surveillance video. Video
surveillance shows that you were at the Safehouse during the periods that gaming activity
was detected by the IT Department." Further, we note that both notices, in addition to
referencing a number of other provisions, cite Subsection 7- D of the Handbook for the
proposition that "[ flailure to perform assigned duties or to follow a supervisor's
instructions may be a cause for disciplinary action up to and including termination."
Moreover, while Officer Mikkelsen testified that he never received the Handbook, he
signed an acknowledgment indicating that he had received same on May 4, 2020.
Considering the foregoing, we find that the pre -termination letter provided Officer
Mikkelsen notice and substance of the charges lodged against him. See Dept Pub.
Safety and Corr. v. Savoie, 569 So. 2d 139, 142 ( La. App. 1 Cir. 1990) ("[ N] otice is
sufficient if it apprises the employee of the nature of the charges and general substance
of the evidence against him.") Also, both the pre -termination and final disciplinary notices
provided Officer Mikkelsen with specificity as to the date, times, and alleged duration he
was at the Safehouse while he purportedly should have been patrolling his assigned area.
See Lazard, 2015 WL 1882664 at * 3. Given the detail provided in the notices and Officer
Mikkelsen' s entitlement to a full evidentiary hearing post -termination, we conclude that
the Commission did not err in concluding that SLFPA- E complied with Civil Service Rules
12. 7 and 12. 8. Accordingly, the first assignment of error is without merit.
9 Lack of Cause for Discipline
In the second assignment of error, Officer Mikkelsen contends that the
Commission' s decision upholding the termination was manifestly erroneous because
testimony established that he did not violate SLFPA- E policy. He maintains that SLFPA- E
used circumstantial and speculative evidence to purportedly show that he was in the
Safehouse while he should have been patrolling in order to justify discipline, and the
Commission relied upon that same evidence in affirming the discipline.
Specifically, Officer Mikkelsen notes that the Commission, in its reasons, cited three
specific periods during which Officer Mikkelsen purportedly remained at the Safehouse
for extended durations— nearly three hours on May 20, nearly seven hours on May 26,
and an additional ninety minutes on June 22. Officer Mikkelsen claims that he was in the
Safehouse for nearly three hours on May 20, preparing food and performing
administrative tasks, which he maintains is not out of the ordinary. Further, he asserts
that while the daily recap sheet from May 20 showed only five entries, the recap is limited
to actual incidents and would not include time spent patrolling. With regard to May 26,
he acknowledged that he had no specific recollection on that date, and that there were
only two calls on the recap sheet that "did stand out." Moreover, Officer Mikkelsen avers
that while SLPA- E initially indicated that he spent nearly seven hours in the Safehouse on
June 22, the Commission only found Officer Mikkelsen at the Safehouse for ninety
minutes. Even so, Officer Mikkelsen avers that there were valid reasons to be at the
Safehouse, including eating, preparing reports, or completing online training. Officer
Mikkelsen contends the Commission manifestly erred by crediting allegations that were
unsupported by concrete proof of misconduct.
Officer Mikkelsen also maintains that he, as well as one of his supervisors, were,
told that they could attach personal devices to the Safehouse' s network. Officer
Mikkelsen avers that an Xbox is a personal device, and while he did admit to connecting
it to the Safehouse' s network to download updates, Officer Mikkelsen testified that he
never played games at the Safehouse. He emphasizes that there is no conclusive
evidence that he used an Xbox gaming console during work hours and maintains that his
presence at the Safehouse was limited to sanctioned activities. Accordingly, Officer
10 Mikkelsen concludes that SLFPA- E failed to meet its burden of proof to establish cause
for discipline.
In contrast, SLFPA- E asserts that the termination was based on Officer Mikkelsen' s
repeated failure to perform his assigned patrol duties— not on whether he personally used
an Xbox in the Safehouse. While the investigation did uncover Xbox usage during these
shifts and it cannot be shown that it was in fact Officer Mikkelsen who was using the
Xbox, SLFPA- E suggests that this issue is a red herring. Instead, SLFPA- E maintains that
the critical issue was Officer Mikkelsen' s prolonged absence from duty.
Specifically, Director Chandler testified that Officer Mikkelsen and his fellow officers
were assigned to " patrol the levees, which is their main responsibility." Despite this
primary duty, SLFPA- E avers that it cited specific evidence showing that Officer Mikkelsen
spent hours at the Safehouse on multiple shifts despite having no assignment that
justified his presence there. SLFPA- E notes the Commission found that Officer Mikkelsen,
rather than patrolling his designated area, remained at the Safehouse for extended
periods on May 20, May 26, and June 22, 2022. Considering the foregoing, SLFPA- E
maintains that there is an adequate basis in the record to affirm the Commission's finding
that legal cause existed for SLFPA- E' s disciplinary action.
Credibility determinations are entitled to great deference and will not be disturbed
on appeal absent manifest error. See Falgout v. Am. Alt. Ins. Corp., 2023- 1291
La. App. 1 Cir. 6/ 27/ 24), 392 So. 3d 682, 685. Under the manifest error standard of
review, we cannot not reweigh the evidence or substitute our own evaluations for those
of the Commission. A factual finding may only be reversed if it is clearly wrong or lacks a reasonable factual basis in the record. Stobart v. State., Dept of Transp. & Dev.,
617 So. 2d 880, 882 ( La. 1993); Rosell v. ESCO, 549 So. 2d 840, 844 ( La. 1989)
The Commission cited specific periods during which it found Officer Mikkelsen
remained at the Safehouse for extended durations when he was assigned to active patrol.
In reaching this finding, the Commission, in its reasons for judgment, indicated: " Captain
Durnin accessed badge logs; the motion detector information; the pictures taken at the
entry doors; and the pictures taken of the Safehouse parking lot for the dates referenced
in [ Mr. Mikkelsen' s] disciplinary letters. He also took notes as to when [ Mr. Mikkelsen]
11 entered the Safehouse." The Commission found that the " evidence and testimony
establish [] that Mr. Mikkelsen spent an inordinate amount of time at the Safehouse on
May 20, 2022, May 26, 2022[ j and June 22, 2022."
When questioned about these timeframes, the Commission found that Officer
Mikkelsen offered vague and inconsistent explanations, frequently testifying that he could
not recall the shift in question or offered speculative justifications—such as that he may
have been eating, completing reports, or engaging in online training—without linking
those activities to the duration of time spent in the Safehouse. The Commission
contrasted this with Officer Mikkelsen' s detailed testimony about other shifts, where he
accounted for his time through report writing and responding to calls. The Commission
concluded that Officer Mikkelsen' s failure to recall or explain the extended time on the
dates at issue undermined his credibility and supported a finding of dereliction of duty.
Considering the record as a whole, we cannot conclude that the Commission' s factuaP
determinations are manifestly erroneous. See Davis v. AMS Tube Corp., 2002- 2427
La. App. 1 Cir. 12/ 31/ 03), 868 So. 2d 141, 146, writ denied, 2004- 0286 ( La. 3/ 26/ 04),
871 So. 2d 354 ("[ W] hen factual findings are based on witness credibility, the appellate
court must give great deference to the fact -finder's decision to credit or discredit a
witness's testimony.' }
The Commission cited numerous provisions Officer Mikkelsen purportedly violated,
but most notably, Subsection 7- 1) of the Handbook, which, as noted above, provides that
an employee may be disciplined for failing to perform his assigned duties. The
Commission found that Officer Mikkelsen repeatedly failed to patrol, which was his " main
responsibility," thereby impairing SLFPA- E' s efficient operation. Considering the
foregoing, we cannot conclude that the Commission' s finding that legal cause existed for
disciplinary action was arbitrary, capricious, or an abuse of discretion. Accordingly, this
assignment of error lacks merit.
Excessive or Disproportionate Penalty
Officer Mikkelsen contends that even if he committed infractions that warranted
discipline, "' termination was excessive and not commensurate with the infractions."
Officer Mikkelsen avers that the time purportedly spent in the station was de minimis
12 relative to all of the shifts worked during the investigation, March 16, 2022 through
October 21, 2022. Officer Mikkelsen avers that SLFPA- E did not offer any evidence to
establish a real and substantial relationship between the alleged infraction( s) and an
adverse impact on the efficient operation of the public service. Further, Officer Mikkelsen
avers that he had never been the subject of any prior disciplinary action. Rather, Officer
Mikkelsen testified that he had received excellent performance evaluations, had been
promoted at the Levee District, had been awarded Officer of the Month multiple times,
and had been presented with " Challenge Coins" for multiple arrests. Considering the
foregoing, Officer Mikkelsen urges the court to find that termination was not warranted.
In opposition, SLFPA- E asserts that the Commission did not abuse its discretion in
affirming Officer Mikkelsenfs termination. SLFPA- E avers that Officer Mikkelsen was a
police officer working the night shift, and he was entrusted to report to work and do the
job for which he was hired— to keep the public safe. SLFPA- E maintains that "[ n] o one
was present at night to look over the shoulders of the C [ Platoon] and supervise [ them],"
and they "go out among the public where they must be their own accountability." SLFPA-
E asserts that Officer Mikkelsen destroyed any trust that he would carry out his duties if unsupervised. SLFPA- E maintains that the risks " cannot be downplayed by claiming that, other than when he failed to do his job, [ Officer] Mikkelsen was a good employee."
SLFPA- E avers that exposing it " and the public to extremely serious risks cannot be
countenanced, particularly by a member of law enforcement." SLFPA- E suggests that
dismissal was appropriate under the circumstances.
Termination from permanent employment is the most extreme form of disciplinary action that can be taken against a classified employee. See Honord v. Dept of Public
Works, 2014-0986 ( La. App. 4 Cir. 10/ 29/ 15), 178 So. 3d 1120, 1131, writ denied, 2015-
2161 ( La. 1/ 25/ 16), 185 So. 3d 749. The Commission has a duty to decide whether the
punishment imposed is commensurate with the dereliction. Guillory v. Dept of
Transp. & Dev., 475 So. 2d 368, 370- 71 ( La. App. 1 Cir. 1985). As noted above, when
making this determination, an appellate court should not modify the Commission' s order unless it is arbitrary, capricious, or an abuse of discretion. Kirk, 147 So. 3d at 204, Oft
Bannister, 666 So. 2d at 647.
13 At the hearing, Director Chandler testified that Officer Mikkelsen' s conduct
impeded the safety of the community" and " impacted the ability to maintain security on SLFPA- E' s] assets." Further, the final disciplinary notice similarly indicated that as a
police officer for C Platoon, Officer Mikkelsen was " expected to patrol assigned areas to
prevent crime and ensure protection of life and property during [ his] entire shift with the
exception of permissible breaks as defined by the Police Communication Signals. ... [ His]
actions endangered the citizens of Jefferson, Orleans and St Bernard parishes by not
conducting [ his] assigned patrols[.]" Similarly, the Commission found that "[ Officer]
Mikkelsen' s failure to patrol his designated areas exposed the agency to further potential impairment. If an incident had occurred on [ Officer] Mikkelsen' s patrol route when he
was not patrolling it could have led to destruction of life and/ or property." The
Commission found that "[ s] uch behavior is manifestly detrimental to the state service and
simply cannot be tolerated." Given the substantial relationship between the improper
conduct and the efficient operation of the public service, we cannot conclude the
Commission' s ruling affirming the termination was arbitrary, capricious, or an abuse of discretion. This assignment of error is without merit.
CONCLUSION
For the foregoing reasons, we affirm the August 1, 2024 Civil Service Commission
decision. Costs of this appeal are assessed to appellant, Alex Mikkelsen.
AFFIRMED.