Louviere v. Department of Public Safety, Office of State Police
This text of 393 So. 2d 158 (Louviere v. Department of Public Safety, Office of State Police) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Plaintiff appeals from a judgment of the Civil Service Commission upholding his demotion.
The issues are: the sufficiently of notice to plaintiff of one of the charges against him, legal cause for his demotion, alleged violation of his First Amendment rights to free speech, and exclusion of evidence by the Civil Service Commission.
We affirm.
Plaintiff was demoted for violation of various procedural rules and regulations of the Department of Public Safety based upon the following incidents:
1. While attending a law enforcement class at Louisiana College, plaintiff made an unsolicited talk on the suspension and indictment of his superior officer and friend, expressing his personal support for his friend and criticizing the district attorney, the grand jury and the investigation.
2. Plaintiff lent his assigned state vehicle to another trooper for his personal use while aware that the trooper had been restricted to “duty use”.
3. Plaintiff accepted the use of a rent-free apartment in an apartment complex for a year in exchange for opening and [160]*160closing the swimming pool. A procedural order required written permission for outside employment.
Plaintiff claims that charge “1”1 of his letter of demotion did not give him sufficient notice as required by Rule 12.3 of the Civil Service Commission.2
We find the allegations contained in the demotion letter are sufficient to give plaintiff adequate notice of the charge against him. Shelfo v. LHHRA, Pinecrest State School, 361 So.2d 1268 (La.App. 1st Cir. 1978), writ denied La., 364 So.2d 122.
Plaintiff asserts that the content of his speech is not legal cause for his demotion. While there is conflicting testimony as to the substance of plaintiff’s remarks, the Civil Service Commission found that plaintiff, in a public classroom “... in the very least, cast doubt on the credibility of the State Police investigations, the actions of his superior officers, and the Grand Jury in the case of Ronald Stephens, which had not come to trial.” We find no manifest error.
Plaintiff contends that the demotion based on his speech is a violation of his First Amendment right to free speech. He claims Procedural Order No. 505.2, Section 1, Subsection B, Paragraphs 12 and 15, supra, are constitutionally overbroad and [161]*161vague. Plaintiff cites Flynn v. Giarrusso, 321 F.Supp. 1295 (E.D.La.1971) in support of this contention.
In that case the court held unconstitutionally overbroad and vague very similar regulations of the New Orleans Police Department. Since that time, however, the United States Supreme Court has declined to find overbroad and vague language which sets out prohibitions on the activities and speech of public employees “.. . in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply without sacrifice to the public interest.” United States Civil Service Commission v. National Association of Letter Carriers, AFL-CIO, 413 U.S. 548, 93 S.Ct. 2880, 2897, 37 L.Ed.2d 796 (1973); Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974).
We believe the challenged regulations reasonably apprise a person of the behavior expected of him, and therefore not unconstitutionally overbroad and vague.
Plaintiff claims the Commission erred in excluding evidence offered to show the loan of his state automobile was authorized by certain departmental exceptions. We feel his claim has merit. The record shows the loan was acknowledged as an exception by plaintiff’s superiors. For this reason the loan does not constitute cause for demotion.
Plaintiff contends the use of a rent-free apartment for a year in exchange for opening and closing the swimming pool was not employment so as to necessitate obtaining written permission. There is conflicting testimony as to plaintiff’s duties at the apartment complex. Although the Civil Service Commission is not bound by technical rules of evidence, only legally competent evidence can be considered by this court on review, Messer v. Department of Corrections, Louisiana State Penitentiary, 358 So.2d 975, (La.App. 1st Cir. 1978). Because the manager of the apartment was not a party to the agreement between plaintiff and the owner, we find her testimony as to plaintiff’s duties should not be considered. Even absent this testimony, however, we find an arrangement whereby a state trooper receives a rent-free apartment in an apartment complex in exchange for even minimal duties constitutes employment. By his own admission, plaintiff stated he would have stopped an altercation at the apartment if called upon. Even the checking and closing of the swimming pool has a relationship to security. We agree his failure to obtain written permission for this employment is legal cause for his demotion.
Plaintiff’s final contention that the demotion was based on his political beliefs or prompted by his friendship with former Captain Ronald Stephens is not supported by the evidence.
For the above reasons, the judgment of the Civil Service Commission is affirmed at appellant’s costs.
AFFIRMED.
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393 So. 2d 158, 1980 La. App. LEXIS 4977, Counsel Stack Legal Research, https://law.counselstack.com/opinion/louviere-v-department-of-public-safety-office-of-state-police-lactapp-1980.