Hermann v. New Orleans Police Department

113 So. 2d 612, 238 La. 81, 1959 La. LEXIS 1071

• Court: Supreme Court of Louisiana
• Decided: June 25, 1959
• Docket: 44310
• Status: Published

Opinions

HAMLIN, Justice.

The Civil Service Commission of the City of New Orleans maintained plaintiff’s appeal from his discharge by the Superintendent of Police as a police captain for the Third and Fifth Districts and ordered him reinstated to his position with back pay from the date of his discharge, less any amounts of money earned in the interim. It ordered counsel to report to the Commission within thirty days, in the event they were unable to agree on the net amount due to the appellant.

Plaintiff appealed to this Court from that portion of the ruling ordering a deduction of any amounts earned during the interim between his discharge and his reinstatement. He also appealed from the Commission’s disallowance of back pay for the interim between the time of his suspension (hereinafter discussed) and the date of his discharge. Defendant neither appealed nor answered plaintiff’s appeal.

In its “Ruling of Civil Service Commission on Appeal,” the Civil Service Commisson of the City of New Orleans found that Edward F. Hermann, a Captain in the New Orleans Police Department, was suspended by the Superintendent of Police by letter' dated March 19, 1957, reading as follows:

“March 19, 1957

“Captain Edward F. Hermann

“4939 Painters Street

“New Orleans, Louisiana

“Dear Captain Hermann:

“I have been officially informed that you were indicted today by the Federal Grand Jury for Income Tax evasion.

“As a result of the seriousness and gravity of this charge I have no alternative but to suspend you immediately-

“Very truly yours,

“(Sgd) Provosty A. Dayries,

“Superintendent of Police

“PAD/1

“cc-Personnel

“City Civil Service”

Later, on June 21, 1957, plaintiff was dismissed by Superintendent of Police Dayries by letter reading as follows:

“June 21, 1957

“Captain Edward F. Hermann

“4939 Painters Street

“New Orleans, 22, Louisiana

“Dear Captain Hermann:

“I have given careful study to the Police Bureau of Investigation report relative to allegations of misconduct (sic) your part. I have concluded as follows:

“a. a system of graft existed in the Third District during your assignment there from January 7, 1951 through June 20, 1951.

“b. a system of graft existed in the Fifth District during your assignments there from June 21, 1951, through December 6, 1951, from May 6, 1952, through April 3, 1953, and from January 9, 1954, through July 26, 1954.

"c. you participated in these systems of graft while assigned to the Third and Fifth Districts.

“As a result of my careful examination of this matter I find you acted in a manner unbecoming an officer, and hereby dismiss you from the Police Department, effective June 20, 1957.

“Your dismissal is specifically predicated on the fact that you allowed a system of graft to exist while assigned as a police captain to the Third and Fifth Districts.

“Very truly yours,

“(Sgd) Provosty A. Dayries

“Superintendent of Police

"PAD/me

“cc-Personnel

“City Civil Service”

Plaintiff appealed to the Civil Service Commission of the City of New Orleans from both the suspension and the dismissal. His counsel advanced two special defenses before the Commission — one to each the suspension and the dismissal.

Plaintiff contended that his suspension on March 19, 1957 was predicated solely and only on the fact that he was indicted by the Federal Grand Jury for income tax evasion; and that under the decision of the Commission in the appeal of Hugh L. Hearty, No. 202, the suspension should be reversed.

In its ruling in the instant case, the Commission set forth:

“In the Hearty case, this Commission held in substance that the filing of an indictment, being merely an accusation of a crime, is insufficient of itself without any independent finding or determination by the appointing authority to support a suspension, and, further, an isolated indictment without more, if considered adequate, would be tantamount to permitting the appointing authority to abdicate the responsibility placed upon him by the civil service law, in favor of an accusatorial body not in anywise connected with- the civil service system.

“The Commission sees no material distinction between the case involving the appellant and the Hearty case, and must therefore order that the suspension be rescinded and set aside. However, as in the Hearty case, the Commission believes that justice will best be served in exercising its discretion not to award back pay to the appellant.” (Emphasis 'ours.)

As to his dismissal, plaintiff contended that in view of the fact that approximately one year elapsed from the time the facts became known to the Superintendent of Police until the letter of dismissal of June 21, 1957, the dismissal should be set aside, on 'the authority of the decision of the Commission in the Joseph A. Guillot case, No. 209 of its docket.

The Commission, in its ruling, observed that in the Guillot case it pointed out that the various investigations and reports by the Police Bureau of Investigation were presented to the Superintendent of Police in the early part of 1956, apparently during the months of March, April, and perhaps May, of that year, and that while the charges contained in the Superintendent’s letter of discharge in that matter dated June 27, 1957, might well have contained adequate basis for discharge, the undue delay in taking action showed that the contents of the said letter of June 27, 1957 were not the true reasons for Guillot’s discharge.

The Commission, in its ruling in the instant case, set forth:

“In the instant case, the Superintendent of Police testified before this commission that he became apprised of the facts towards the middle of the year 1956. The action of dismissal did not follow until June 21, 1957. The Commission finds no substantial difference in the facts and must therefore conclude that the reasons for the dismissal given by the Superintendent in his letter of June 21, 1957, were not the true reasons for dismissal.”

The Commission then entered the following findings of fact:

“1. An organized system of graft existed in the Third and Fifth District Police Stations during the period from approximately January 7, 1951, through July 28, 1951.

“2. During the existence of the said system of graft the appellant as Captain in the New Orleans Police Department was assigned to the Third and Fifth Districts.

“3. During the middle of the year 1956 the Superintendent of police had before him all of the evidence relative to the circumstances leading to his letter of dismissal of June 21, 1957.

“4. No action on dismissal in question was taken by the Superintendent until June 21, 1957.

“5. The causes for discharge stated in the Superintendent’s letter of June 21, 1957, while they might well have been adequate for a basis of discharge if action had been taken promptly upon discovery of this evidence, were not in fact the true causes for discharge of appellant on June 21, 1957.”

The Commission’s conclusions of law in the instant case are:

“1, The true cause for discharge of the appellant was not stated in the letter of discharge of June 21, 1957.

“2. The governing law (Louisiana Constitution Article XIV, Section 15 (N) (1) [LSA] requires that a discharged Civil Service employee be furnished notice in writing of the cause of his discharge.

“3. The appeal is therefore maintained and appellant ordered reinstated in his position with back pay from the date of his discharge, less any amounts which he may have earned in the interim.

“4. Counsel are ordered to report to the Commission within thirty days in the event they are unable to agree on the net amount due to the appellant.”

Counsel for the appellant contends that the actions of the Commission in disallowing back pay for the period between his suspension and his discharge and subjecting his pay from the date of his discharge to the time of reinstatement to deductions for amounts earned during the interim are contrary to the prior jurisprudence of this Court. He relies on the following statement made in the case of Bennett v. Louisiana Wild Life and Fisheries Commission, 234 La. 678, 101 So.2d 199, 201 :

“As aptly observed in the first Boucher opinion [State ex rel. Boucher v. Heard, 228 La. 1078, at page 1085, 84 So.2d 827, at page 830] — and which may be said to represent the uniform jurisprudence of this Court in the instance of one who has acquired permanent Civil Service status— ‘Until there has been a lawful removal for cause, a civil servant is legally entitled to recognition of his permanent status as such, with the corresponding right to enforce the attending emoluments, rights and benefits flowing therefrom.’ In reviewing the decisions of the Civil Service Commissions on appeal here, when the facts show, as in this case, that the employee was illegally dismissed and his services never lawfully terminated, we have said that such employee retained his permanent status as a Civil Service servant and is entitled to receive payment of his salary during the period of time, and until he has been lawfully removed or suspended for cause. State ex rel. Boucher v. Heard, 228 La. 1078, 84 So.2d 827; State ex rel. Anderson v. Walker, 230 La. 816, 89 So.2d 324; Day v. Department of Institutions, 231 La. 775, 93 So.2d 1; State ex rel. Boucher v. Heard, 232 La. 499, 94 So.2d 451.”

We do not think that the cases relied on by counsel for the appellant are apposite, because they represent instances where this Court passed on the legality of the discharges involved or on matters irrelevant to those with which we are now concerned. They were not occasions where the State or City Civil Service Commissions had exercised the discretion vested in them under Article XIV, Sec. 15 (0) (3), Louisiana Constitution of 1921, which reads:

“If any Commission after any hearing orders a dismissed or suspended employee reinstated, it may reinstate such employee under such conditions as it deems proper and may order full pay for lost • time.”

In the Bennett case, supra, where an employee had been illegally discharged and the State Civil Service Commission, as well as the defendant, had agreed that the question was moot, we held that the Commission could not issue a decree ordering the defendant, Louisiana Wild Life and Fisheries Commission, to pay plaintiff his regular monthly salary for the period during which he was illegally separated from his position, such power not being given to it by law.

In the first Boucher case (Boucher v. Division of Employment Security, 226 La. 227, 75 So.2d 343) we held that the removals of plaintiffs from office were improper and illegal and set aside the order of the State Civil Service Commission removing them from office. In the second case (State ex rel. Boucher v. Heard, 228 La. 1078, 84 So.2d 827) we held that mandamus was the proper proceeding for an employee to bring to secure the back wages due him for the period of his illegal discharge; in other words, that “ * * * under Article 834 of our Code of Practice the writ of mandamus lies to order public officers to perform their mandatory duties, and that accordingly Boucher and the other relators were entitled to bring mandamus proceedings to recover their back salaries because they had never been lawfully dismissed from their civil service offices.” ¹ In the third Boucher case (State ex rel. Boucher v. Heard, 232 La. 499, 94 So.2d 451) we affirmed the judgment of the trial court awarding plaintiffs their back salaries in their mandamus proceeding.

In Day v. Department of Institutions, 231 La. 775, 93 So.2d 1, we had before us for consideration the alleged illegal dismissal of plaintiff. Our final decree reinstated this plaintiff.

The case of Anderson v. Division of Employment Security of Department of Labor, 233 La. 694, 98 So.2d 155, involved procedural questions not relevant to the instant matter.

The case of State ex rel. Anderson v. Walker, 230 La. 816, 89 So.2d 324, upheld the right of an illegally discharged employee to bring a mandamus proceeding for payment of his back salary.

In Dickson v. Department of Highways, 234 La. 1082, 102 So.2d 464, 467, we reversed the Civil Service Commission’s holding that plaintiff had been legally discharged for cause. We stated:

“Under the ruling in the Bennett case, supra, (mentioned previously in this decision) appellant is entitled to his salary as a matter of course and it is unnecessary for this Court to order the payment. In case appellant is not paid he may resort to a mandamus proceeding, as was done in State ex rel. Boucher v. Heard, 228 La. 1078, 84 So.2d 827.”

In the instant case the Civil Service Commission of the City of New Orleans ■ordered the reinstatement of plaintiff, and there is no appeal from this order for our consideration. The Commission, after ordering reinstatement, then exercised the ■discretion vested in it under Article XIV, Sec. IS, (0) (3), Louisiana Constitution of 1921, by reinstating the employee under such conditions as it deemed proper. These ■conditions were the disallowance of back pay for the period of suspension; and an allowance of back pay from the date of his discharge, less any amounts which he may have earned in the interim.

The above cited provision of the Constitution gives to the Commission wide powers of discretion and much latitude in cases where it orders a dismissed or suspended employee reinstated; and where its ruling is attacked or questioned, we must ascertain whether the conditions imposed by the Commission are an abuse of its discretion.

Appellant has neither proved, urged, nor pointed out — in brief or in argument — any facts or circumstances which would tend to show that the Commission abused its discretion.

The Louisiana Constitution of 1921, Article XIV, Section 15(N) (1), provides in part that the burden of proof on appeal as to the facts shall be on the employee.

On the other hand, appellee has urged in its brief that the reason why the hearing of appellant’s case was delayed before the Commission and a decision not rendered until July 8, 1958, was because appellant, through counsel, sought and was granted numerous continuances, due to the fact that he had an indictment pending against him in the Federal Court. It contends that the cause of the delay in the hearing and disposing of appellant’s case was attributable to him, and that the Commission, in exercising its discretion, evidently took into consideration the delays caused by appellant in seeking continuances and felt that justice would best be served by charging appellant therefor rather than penalizing the City of New Orleans.

The statement of appellee that appellant sought and was granted numerous continuances is not contradicted by appellant.

Under Article XIV, Section 15(0) (3), supra, we are of the opinion that the Commission had the right to take all of the foregoing circumstances into consideration in its ruling, and, in so doing, there was no abuse of discretion.

The case of City of New Orleans v. Jackson, 224 La. 771, 70 So.2d 679, is not apposite, because there the Commission saw fit to award the dismissed employee his full back pay. Such was an exercise of discretion under conditions which the Commission thought proper.

For the reasons assigned, the ruling of the Civil Service Commission of the City of New Orleans is affirmed.

FOURNET, C. J., absent.

1 . State ex rel. Boucher v. Heard, 232 La. 499, 94 So.2d 451, 452.