Calvin Rogoff v. New Orleans Police Department

• Court: Louisiana Court of Appeal
• Decided: July 20, 2022
• Docket: 2022-CA-0070
• Status: Published

Opinion

CALVIN ROGOFF * NO. 2022-CA-0070

VERSUS * COURT OF APPEAL NEW ORLEANS POLICE * DEPARTMENT FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 9084 ****** Judge Paula A. Brown ****** (Court composed of Judge Rosemary Ledet, Judge Paula A. Brown, Judge Tiffany Gautier Chase)

Donovan A. Livaccari LIVACCARI VILLARRUBIA LEMMON, LLC 101 W. Robert E. Lee Blvd. Suite 402 New Orleans, LA 70124-2472

COUNSEL FOR PLAINTIFF/APPELLEE

Elizabeth Robins Deputy City Attorney Churita H. Hansell Chief Deputy City Attorney Donesia D. Turner Senior Chief Deputy City Attorney 1300 Perdido Street, Room 5E03 New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED JULY 20, 2022 PAB RML TGC

This is a civil service case. Appellant, New Orleans Police Department

(“NOPD”), appeals the September 13, 2021 decision of the Civil Service

Commission of the City of New Orleans (the “Commission”) that reversed the

discipline – a four-day suspension – imposed on Officer Calvin Rogoff (“Ofc.

Rogoff”) and found that the discipline was an absolute nullity for NOPD’s failure

to timely investigate the violations. For the following reasons, we affirm the

Commission’s decision.

FACTUAL BACKGROUND

Ofc. Rogoff is a police officer with permanent status with NOPD. The facts

leading to Ofc. Rogoff’s discipline arises out of a public complaint. On March 12,

2016, a complainant notified the police that when a second line parade passed in

front of his residence, two strangers wandered onto the property. One of the

strangers urinated on the side of the residence, but was chased away by the

complainant’s wife. The second stranger climbed onto the roof and damaged the

complainant’s gutters. Ofc. Rogoff was dispatched to investigate the complaint.

Once Ofc. Rogoff arrived on the scene, the complainant showed Ofc. Rogoff

surveillance video footage of the incident and froze the video on an image of the

1 face of the intruder who damaged the gutters. Ofc. Rogoff informed the

complainant that trespass was not usually an issue that triggered a follow-up

investigation. Ofc. Rogoff did not author a report of the complainant’s property

damage nor did he collect the complainant’s surveillance footage of the incident

and intruders who damaged the complainant’s property.

On November 1, 2018, Investigator Ernest Crayton (“Investigator Crayton”),

assigned to the Public Integrity Bureau Intake Unit (“PIB”), received a public

complaint against Ofc. Rogoff regarding the March 12, 2016 incident.

Subsequently, on November 13, 2018, Investigator Crayton initiated a formal

disciplinary investigation into Ofc. Rogoff’s conduct. Ofc. Rogoff was charged

with violating two NOPD rules – failure to write a report and failure to collect

evidence.1

On November 26, 2018, Sergeant Gary Lewis (“Sgt. Lewis”), the NOPD

investigator assigned to investigate the formal charges against Ofc. Rogoff, timely

filed a sixty-day investigation extension request, which the Commission granted on

December 18, 2018.

On February 11, 2019, NOPD issued a Notice to the Accused of Completed

Investigation and Notice of Pre-Disciplinary Hearing (the “notice to the accused”)

to Ofc. Rogoff, notifying him that the investigation was complete, and his pre-

disciplinary hearing before Captain Lejon Roberts (“Capt. Roberts”) was

scheduled on April 3, 2019. The notice to the accused further stated that Sgt.

Lewis recommended Ofc. Rogoff be “EXONERATED” of all charges, but that the

1 Violation 1: Rule 4, Performance of Duty, Paragraph 4, Neglect of Duty, subparagraph C-4,

Failing to make a written report when such is indicated; and Violation 2: Rule 4, Performance of Duty, Paragraph 4, Neglect of Duty, subparagraph C-8, Failing to thoroughly search, collect, preserve, and identify evidence in an arrest or investigative situation.

2 Police Superintendent had the final authority on all discipline. Both Sgt. Lewis

and Ofc. Rogoff signed the notice to the accused.

On March 6, 2019, Deputy Superintendent of the Field Operations Bureau

Paul Noel (“Dep. Chief Noel”) submitted a written cover letter to Superintendent

Shaun D. Ferguson (“Chief Ferguson”) stating that he reviewed the disciplinary

investigation and disagreed with Sgt. Lewis’ recommendation that Ofc. Rogoff be

exonerated on all charges. Dep. Chief Noel recommended that the charges against

Ofc. Rogoff be “SUSTAINED,”2 and provided reasons to support his conclusions.

On March 11, 2019, Chief Ferguson agreed with Dep. Chief Noel’s

recommendation to sustain the charges against Ofc. Rogoff.

On April 25, 2019, Capt. Roberts, assigned to conduct the pre-disciplinary

hearing for Ofc. Rogoff, forwarded a second pre-disciplinary hearing notice to Ofc.

Rogoff, informing Ofc. Rogoff that Dep. Chief Noel had overturned Sgt. Lewis’

recommendation to exonerate him and had sustained the charges against him. The

notice also provided that the new pre-disciplinary hearing was scheduled on April

30, 2019.

Following the April 30, 2019 hearing, Capt. Roberts issued the disciplinary

hearing disposition that sustained the charges against Ofc. Rogoff and

recommended a four-day suspension. Chief Ferguson agreed, and on August 29,

2019, he forwarded to Ofc. Rogoff a suspension letter, notifying him of his four-

day suspension that would begin on September 15, 2019.

Ofc. Rogoff promptly appealed his suspension to the Commission; and an

adversarial hearing was held on May 27, 2020. The Hearing Examiner, in its

2 Chief Noel testified that he disagreed with Sgt. Lewis because, after reading the investigation

file and watching Ofc. Rogoff’s body worn camera (BWC) video of the incident, he believed that Ofc. Rogoff did not fulfill his obligation to report the complaint.

3 January 13, 2021 report, found that NOPD’s investigation was completed by

February 11, 2019, when Ofc. Rogoff signed the first notice to the accused, or, at

the latest, March 6, 2019, when Dep. Chief Noel authored a cover letter to Chief

Ferguson recommending the charges against Ofc. Rogoff be sustained – both dates

falling within the statutory deadline. The Hearing Examiner further found that

NOPD met its burden of proof, and recommended Ofc. Rogoff’s appeal be denied

and the discipline upheld.

On September 13, 2021, the Commission granted Ofc. Rogoff’s appeal, and

found that NOPD failed to timely complete its investigation in compliance with La.

R.S. 40:2531(B)(7). The Commission further found the discipline imposed was an

absolute nullity pursuant to La. R.S. 40:2531(C) and ordered the four-day

suspension removed from Ofc. Rogoff’s record and that he be reimbursed for four

days of back pay and other emoluments of employment.

NOPD timely filed an application for rehearing, which the Commission

denied on November 15, 2021. This appeal followed.

STANDARD OF REVIEW

“The Commission has authority to ‘hear and decide’ disciplinary cases,

which includes the authority to modify (reduce) as well as to reverse or affirm a

penalty.” Fulton v. Dep’t of Police, 17-0523, p. 4 (La. App. 4 Cir. 12/6/17), 234

So.3d 107, 110 (quoting Pope v. New Orleans Police Dep’t, 04-1888 (La. App. 4

Cir. 4/20/05), 903 So. 2d 1, 5). “The authority to reduce a penalty can only be

exercised if there is insufficient cause for imposing the greater penalty.” Id. at p. 4,

234 So.3d at 111 (internal quotations and citations omitted). On review, the

Commission “has a duty to decide independently from the facts presented whether

the appointing authority has a good or lawful cause for taking disciplinary action.”

4 Dupree v. New Orleans Police Dep’t., 21-0134, p. 3 (La. App. 4 Cir. 10/27/21),

331 So.3d 385, 387 (citing Whitaker v. New Orleans Police Dep’t, 03-0512, p. 2

(La. App. 4 Cir. 9/17/03), 863 So.2d 572, 574).

“An appellate court reviews a Commission’s findings of fact by applying

manifest error standard of review.” Williams v. Sewerage & Water Bd., 21-0020,

p. 4 (La. App. 4 Cir. 1/5/22), 334 So.3d 818, 821-22 (citation omitted). However,

the Commission’s procedural decisions and interpretations of law are reviewed de

novo. Byrd v. Dep’t of Police, 12-1040, p. 10 (La. App. 4 Cir. 2/6/13), 109 So.3d

973, 980.

DISCUSSION

NOPD assigns multiple errors,3 all of which raise the issue of whether the

Commission erred in finding the discipline NOPD imposed on Ofc. Rogoff was an

3 NOPD lists the following assignments of error:

1. The Commission erred in in nullifying the four (4) day suspension NOPD issued to Rogoff, while acknowledging the undisputed facts presented by NOPD establishing that the violations Rogoff was charged with had occurred, including (1) failing to issue a police report as required documenting a citizen report of property damage; and (2) failing to collect video evidence the citizen presented documenting the trespassers’ property damage; and that these violations impaired the efficient operation of the department; 2. The Commission erred in nullifying the four (4) day suspension NOPD issued to Rogoff while acknowledging that NOPD introduced documents into evidence at the Civil Service hearing confirming each stage of the timely misconduct investigation pursuant to La. R.S. 40:2531 (B)(7) from its initiation on 11-13-18 thru [sic] its completion with the Notice Rogoff signed for on 2-11-19 which advised him of the date, time and location of his pre- disciplinary hearing, all occurred well within the 120 days for an extended investigation; 3. The Commission erred in nullifying the four (4) day suspension NOPD issued to Rogoff by the Commission’s misapplication of the well-established jurisprudence of this Honorable Court that pursuant to La. R.S. 40:2531(B)(7), an investigation is completed when the officer receives notice that he will have a pre-disciplinary hearing, particularly when that notice advises the officer of the date, time, and location of the hearing; and 4. The Commission erred in its misapplication of the well-established jurisprudence of this Honorable Court, that pursuant to La. R.S. 40:2531(B)(7), an investigation is completed when the officer receives notice that he will have a pre-disciplinary hearing, which notice is not vitiated simply by a continuance of the original hearing date.

5 absolute nullity for its failure to timely complete its investigation within the time

delay mandated in La. R.S. 40:2531(B)(7). NOPD contends that because Ofc.

Rogoff signed the notice to the accused on February 11, 2019, a month before the

investigation completion deadline, its investigation did not extend beyond the one

hundred twenty-day statutory limit.

The issue of whether the Commission erred in the construction and

application of La. R.S. 40:2531(B)(7) presents an interpretation of law, and is thus

subject to de novo review. Liang v. Dep’t of Police, 13-1364, pp. 8-9 (La. App. 4

Cir. 8/20/14), 147 So.3d 1221, 1225 (internal citations omitted).

The Police Officer Bill of Rights, codified in La. R.S. 40:2531, sets forth the

minimum standards the investigating agency is required to employ when police

officers are under a disciplinary investigation and the resulting penalties for failure

to comply with those standards. Specifically, at the time Ofc. Rogoff was charged

and investigated, La. R.S. 40:2531(B)(7) provided, in pertinent part:4

When a formal, written complaint is made against any police employee or law enforcement officer, the superintendent of state police or the chief of police or his authorized representative shall initiate an investigation within fourteen days of the date the complaint is made. Except as otherwise provided in this Paragraph, each investigation of a police employee or law enforcement officer which is conducted under the provisions of this Chapter shall be completed

4 La. 40:2531(B)(7) was amended by Act 2021 La. Sess. Law Serv. Act 451 (H.B. 430) and

extended the statutory time-delay to complete a disciplinary investigation from sixty days to seventy-five days. The statute also added the following language regarding notice:

The investigation shall be considered complete upon notice to the police employee or law enforcement officer under investigation of a pre-disciplinary hearing or a determination of an unfounded or unsustained complaint. The notice may be given in writing or electronically. The notice is considered received by the police employee or law enforcement officer under investigation on the date sent, provided it is sent to the department email address in the personnel file of the police employee or law enforcement officer. The notice shall be considered received by the police employee or law enforcement officer under investigation on the date received, provided it is sent to the home address in the personnel file of the police employee or the law enforcement officer. Nothing in this Paragraph shall limit any investigation of alleged criminal activity.

6 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 police employee or law enforcement officer who is under investigation. The police employee or law enforcement 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 police employee or 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. The investigation shall be considered complete upon notice to the police employee or law enforcement officer under investigation of a pre-disciplinary hearing or a determination of an unfounded or unsustained complaint. Nothing in this Paragraph shall limit any investigation of alleged criminal activity. (Emphasis added.)

La. R.S. 40:2531(C) – the penalty for failing to comply with the minimum

standards – provides:

There shall be no discipline, demotion, dismissal, or adverse action of any sort taken against a police employee or law enforcement officer unless the investigation is conducted in accordance with the minimum standards provided for in this Section. Any discipline, demotion, dismissal, or adverse action of any sort whatsoever taken against a police employee or law enforcement officer without complete compliance with the foregoing minimum standards is an absolute nullity.

It is well settled that the appointing authority initiates its investigation under

La. R.S. 40:2531(B)(7) on the date it initiates the formal disciplinary investigation.

Abbott v. New Orleans Police Dep’t, 14-0993, p. 17 (La. App. 4 Cir. 2/11/15), 165

So.3d 191, 202-03. Moreover, the statute explicitly mandated that “[t]he

investigation shall be considered complete upon notice to [the police officer] . . .

7 under investigation of a pre-disciplinary hearing or a determination of an

unfounded or unsustained complaint.” La. R.S. 40:2531(B)(7).

The statute provides for three exceptions to the sixty-day requirement. First,

NOPD may petition the Commission for an extension of time within which to

complete the investigation, and, upon a showing of good cause, the Commission

may grant NOPD an extension of up to sixty days. Id. Second, the officer under

investigation and the Commission may enter into a written agreement extending

the investigation for up to sixty days. Id. Lastly, the sixty-day requirement is not

applicable to investigations involving alleged criminal activity. Id.

Recently, in Dupree v. New Orleans Police Dep’t., this Court examined

whether NOPD’s investigation of one of its officers complied with the statutory

time limit under La. R.S. 40:2531(B)(7). In that case, the officer was terminated

for submitting false mileage from her vehicle’s odometer to avoid NOPD’s 40-mile

limit on take-home vehicles. The investigation into her conduct began on January

11, 2019, and later the Commission granted NOPD a sixty-day extension of the

investigation. The officer received a notice to the accused on May 8, 2019, but on

August 2, 2019, the acting Commander submitted a cover letter, which provided

additional charges and different reasons in support of its disciplinary investigation.

The officer had a pre-termination hearing, and on November 6, 2019, was

terminated. The officer appealed the termination to the Commission, which upheld

the disciplinary action but found that the discipline was an absolute nullity for

failure to timely complete the investigation. On appeal, this Court, agreeing with

the Commission, found that the August 2, 2019 cover letter – which added

different charges and conclusion to the investigation – formed the basis for

termination and was untimely. Dupree, 21-0134, pp. 6-7, 331 So.3d at 389.

8 In the case sub judice, there is no dispute that Ofc. Rogoff’s formal

disciplinary investigation commenced on November 13, 2018, and the Commission

granted NOPD a sixty-day extension of time within which to complete its

investigation, extending the investigation deadline to March 13, 2019. The

evidence shows that Ofc. Rogoff received his notice to the accused on February 11,

2019. The notice to the accused informed Ofc. Rogoff that (1) the investigation

was completed; (2) Sgt. Lewis’ recommended the charges be exonerated; (3) all

charges were subject to the Superintendent’s approval; and (4) a pre-disciplinary

hearing and pre-disposition conference were scheduled for April 3, 2019.

Similarly to Dupree, on March 6, 2019, Dep. Chief Noel issued a cover letter that

recommended the disciplinary action be “SUSTAINED” and provided additional

analysis and conclusions to the investigation. Capt. Roberts later forwarded a

second notice of pre-disciplinary hearing on April 25, 2021 to Ofc. Rogoff,

informing Ofc. Rogoff that Dep. Chief Noel overturned Sgt. Lewis’

recommendation to exonerate him of the charges. The notice also provided that

the new pre-disciplinary hearing was scheduled on April 30, 2019.5 At the

commission hearing, Dep. Chief Noel testified that, as far as he knew, NOPD

never conducted hearings for exonerated cases. Capt. Roberts likewise testified

that when disciplinary charges are exonerated, no pre-disciplinary hearing is

scheduled. La. R.S. 40:2531(B)(7) is clear that an investigation is complete when

charges are unsustained or a pre-disciplinary hearing date is scheduled, not both.

Accordingly, we conclude that the February 11, 2019 notice to accused was

insufficient to provide meaningful notice of the charges against Ofc. Rogoff, as the

5 Capt. Roberts testified at the hearing that his staff served the April 30, 2019 pre-disciplinary

hearing notice on Ofc. Rogoff on April 25, 2019.

9 notice indicated that he had been exonerated of the charges. Ofc. Rogoff was not

notified until April 25, 2021, well outside of the one hundred twenty-day statutory

time limit to complete an investigation, that the charges were sustained by NOPD.

CONCLUSION

For the foregoing reasons, we affirm the decision of the Commission

granting Ofc. Rogoff’s appeal and finding that the suspension an absolute nullity.

AFFIRMED