NHA DO * NO. 2025-CA-0062
VERSUS * COURT OF APPEAL DEPARTMENT OF SAFETY & * PERMITS FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 9564 C\W 9599 Honorable Jay Alan Ginsberg, Hearing Officer ****** Judge Rosemary Ledet ****** (Court composed of Judge Daniel L. Dysart, Judge Rosemary Ledet, Judge Paula A. Brown)
Robert J. Ellis, Jr. Salvador I. Bivalacqua GRIFFIN & BIVALACQUA, LLC 650 Poydras Street, Suite 2615 New Orleans, LA 70130
COUNSEL FOR PLAINTIFF/APPELLANT
William R. H. Goforth ASSISTANT CITY ATTORNEY James M. Roquemore CITY OF NEW ORLEANS LAW DEPARTMENT Corwin M. St. Raymond ASSISTANT CITY ATTORNEY Donesia D. Turner CITY ATTORNEY 1300 Perdidio Street, Room 5E03 New Orleans, LA 70112
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED July 14, 2025 RML This is a civil service case. Appellant/Employee—Nha Do (“Mr. Do”)— DLD seeks review of the November 12, 2024 decision of the Civil Service Commission PAB for the City of New Orleans (“the Commission”). The Commission’s decision
upheld Mr. Do’s termination by Appellee/Employer (Appointing Authority)—the
Department of Safety and Permits (the “Department”). For the reasons that follow,
this Court affirms the Commission’s decision.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2024, the Department’s director—Tammy Jackson (“Ms.
Jackson”)—notified Mr. Do, by letter, of his emergency, sixty-day suspension for,
among other things, violation of the Department’s Conflict of Interest policy,
codified in Employee Policy Memorandum 13-10, Applications and Payment for
Departmental Services, Employee Transactions with the Department (“Memo 13-
10”).1 Two months later, following an investigation and a pre-termination hearing,
the Department terminated Mr. Do. At that time, Mr. Do was a fifteen-year
1 For ease of discussion, Memo 13-10 is quoted elsewhere in this opinion.
1 permanent, classified employee of the Department; his job title was Chief
Electrical Inspector.
Mr. Do appealed his termination to the Commission.2 Following a hearing at
which witnesses were called and evidence was introduced, the Hearing Examiner,
appointed by the Commission, recommended granting Mr. Do’s appeal. Rejecting
the Hearing Examiner’s recommendation, a majority of the Commission—one
Commissioner dissented—denied Mr. Do’s appeal and affirmed his termination.
Although the Department cited five alleged violations in support of Mr. Do’s
termination, the Commission relied on only one—that he improperly closed out
permits on four properties he owned in 2016 and 2017 (the “Conflict of
Interest/Memo 13-10 Violation”).3 Memo 13-10 provides as follows:
Employee Transactions with the Department
Employees are not permitted to process any application or transaction or conduct any inspections on properties or projects in which that employee has a financial interest either directly or indirectly. ...
2 Although Mr. Do appealed both his suspension and termination, we refer only to his
termination for ease of discussion. 3 Because we find no error in the Commission’s determination that the Conflict of Interest/Memo
13-10 Violation was a valid cause for termination, we pretermit addressing the other four alleged violations, which were as follows:
• That he had a “more than 25% interest in” (later alleged to be a thirty-three percent (33%) owner) of D3 Contractors, LLC (“D3”);
• That on the two of the properties the permit applications undervalued the work to be completed in 2016-2017;
• That on the two of the properties the permit applications contained the incorrect work to be completed in 2016-2017; and
• That he failed to cooperate with the Office of Inspector General (“OIG”). .
2 Employees requiring permits for improvements to their own personal property are authorized to apply for permits through the online permitting and licensing portal outside of regular business hours or may use personal time (breaks or Annual Leave) for in-person transactions. Employees are not authorized to process payments or edit permit data relating to their own projects. All payments, edits, inspections, and other processes are to be completed by other employees in the Department of an equal or higher rank.
The relevant facts regarding the Conflict of Interest/Memo 13-10 Violation
are as follows. In 2008, the Department hired Mr. Do as an electrical inspector.
Sometime after 2017,4 the Department promoted Mr. Do to Chief Electrical
Inspector. According to Mr. Do, his job duties as an electrical inspector included
performing electrical inspections, monitoring other employees’ processing of
permits, performing administrative tasks related to electrical permits, and releasing
meters. Mr. Do described his job as encompassing the “whole nine yards in
electrical.”
In addition to his electrical inspector job, Mr. Do was the sole owner of
NDT Investments, LLC (“NDT”). NDT was in the business of buying and flipping
houses. During the relevant period, NDT purchased properties in the New Orleans
and Metairie areas. NDT then contracted with D3 Contractors, LLC (“D3”), a
construction company, to renovate the properties before selling them. Mr. Do’s
brother—Hoai Do—was the sole owner of D3.5
In May 2013, Mr. Do signed and acknowledged receipt of Memo 13-10. Mr.
Do testified that he understood the rules set forth in Memo 13-10 were binding on
4 The record only reflects that Mr. Do was promoted after the 2016 and 2017 transactions at
issue. 5 Mr. Do’s other brother, Hoang Do, was the agent for service of process for NDT; he also
performed volunteer work for the Department.
3 him. Mr. Do also acknowledged that he was aware Memo 13-10 limited
employees’ activities.
In 2016 and 2017, Mr. Do closed out permits and issued a certificate of
occupancy or completion for several NDT-owned properties on which D3
performed construction work. Mr. Do failed to disclose his ownership in NDT to
the Department.
In 2020,6 Ms. Jackson became the Department’s director. In conjunction
with the OIG’s investigation into another employee’s alleged public corruption,
Ms. Jackson discovered what she characterized as a pattern of deliberate conflict of
interest violations by Mr. Do. According to Ms. Jackson, she discovered that Mr.
Do’s company, NDT, had applied for and obtained permits on at least four of its
properties. According to Ms. Jackson, Mr. Do’s deliberate misconduct was two-
fold: (i) failing to disclose his ownership in NDT to the chief electrical or building
inspector; and (ii) participating in the permitting process for the multiple NDT-
owned properties. When questioned regarding the file pertaining to one of these
NDT-owned properties, Ms. Jackson testified that “[Mr. Do] should not have been
closing or touching this file because he owned the property. That’s a clear conflict.
That is policy. That was — that predates me.”
Ms. Jackson, in the April 2024 termination letter that she sent to Mr. Do,
stated:
6 Both Mr. Do and the Hearing Examiner state that Ms. Jackson became director in 2021. But,
Ms. Jackson testified that she became director is 2020. Depending on the context, we use both dates interchangeably in this opinion.
4 • In the pre-termination hearing, you confirmed you are the sole owner/member of NDT. . . . Previously, as early as 2016, you completed events, and/or inspections on properties which you and/or a relative has an interest; this is a conflict of interest;
• Your failure to recuse yourself from processing the permits of these [four] properties[7] violates Departmental Policy Memorandum 21-01 Standards of Professional Behavior: Section 111: Gifts, Gratuities, Rewards, Conflicts of Interest;
• Furthermore, by performing any review or processing of permit applications of these properties, you are in violation of [Memo 13-10];
• In addition to confirming the ownership interest in the companies identified in the pre-termination letter, you stated that you “do not handle permit and inspection”. However, a screen shot of the event path on the building permit for 4611 Cartier [one of the four NDT-owned properties at issue] shows that you completed the Inspection finaled [sic] event. When the screen shot was shown to you, you did not deny that it was accurate. The customer for 4611 Cartier would have been you, as the owner of this property, your finaling [sic] of the inspection was a clear conflict.
• Lastly, the Louisiana Code of Ethics dictates that it is essential to proper operation that public employment is not used for private gain and that there be public confidence in the integrity of government.
Following an evidentiary hearing, the Hearing Examiner recommended that
Mr. Do’s appeal be granted because the Department failed to establish by a
preponderance of evidence that it disciplined Mr. Do for cause. Disagreeing with
the Hearing Examiner’s recommendation, the Commission found that the
Department established the occurrence of the complained-of-conduct, that the
conduct impaired the Department’s efficient operation, and that the discipline
imposed (termination) was commensurate with the offense. The dissenting
7 The four properties listed in both the suspension and termination letters are as follows: (i) 4860-
4862 Gilbert; (ii) 4611 Cartier; (iii) 4605 Cartier Ave.; and (iv) 4623 Cartier Ave. All four properties were owned by NDT. As noted elsewhere in this opinion, Mr. Do admits that he closed out the permits on several of these properties in 2016 and 2017. But, as to 4623 Cartier Ave., Mr. Do testified that his brother, Hoang Do, closed out the permit on that property at a time when his brother was working for the Department on a volunteer basis as an inspector.
5 Commissioner, however, characterized the Department’s evidence as weak and
observed that “[o]ther than ‘closing out’ permits on his own properties in 2016 and
2017, which Mr. Do admitted, [the Department] wholly failed to support the
alleged complained-of conduct in the suspension and termination letters.” This
appeal followed.
LEGAL PRINCIPLES AND STANDARD OF REVIEW
The Louisiana Constitution provides that “[n]o 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.” LA. CONST., ART. X,
§ 8(A). An employee subjected to disciplinary action by his or her appointing
authority has the right to appeal to the Commission. Hardy v. Juv. Just.
Intervention Ctr., 21-0715, p. 6 (La. App. 4 Cir. 6/16/22), 343 So.3d 288, 293.
Simplified,8 before the Commission, the appointing authority has the burden
of proving a trio of elements—(1) the occurrence of the complained-of conduct—
8 Broken down, the governing principles are as follows:
• [The Commission] is required to decide independently from the facts presented whether the appointing authority has a good or lawful cause for taking disciplinary action and, if so, whether punishment is commensurate with the dereliction.
• The appointing authority has the burden of proof as to the facts. LA. CONST., ART. X, § 8(A).
• The appointing authority must prove by a preponderance of the evidence the occurrence of the complained of activity and prove that the conduct complained of impaired the efficiency of the public service and that it bears a real and substantial relationship to the efficient operation of the public service.
• The legal basis for [The Commission] making any change in the appointing authority's disciplinary action is limited to the appointing authority's failure to establish sufficient cause for its disciplinary action.
• In this context, the term cause has two components—(i) the occurrence of the complained-of conduct; and (ii) an impairment of public service in which the appointing authority is engaged.
6 misconduct; (2) the impairment, as a result of the misconduct, of the department’s
efficiency; and (3) the imposition of discipline commensurate with the
misconduct—punishment. Morrison, 22-0051, pp. 6-7 (La. App. 4 Cir. 7/13/22),
344 So.3d at 265.
The Commission’s final decision is “subject to review on any question of
law or fact upon appeal to the court of appeal wherein the commission is located.”
LA. CONST., ART. X, § 12(A). In reviewing a Commission’s final decision, this
Court must engage in the following multifaceted review:
Initially, deference should be given to the factual conclusions of the civil service commission. A reviewing court should apply the clearly wrong or manifest error rule prescribed generally for appellate review. Then, the court must evaluate the commission’s imposition of a particular disciplinary action to determine if it is both based on legal cause and is commensurate with the infraction; the court should not modify the commission’s order unless it is arbitrary, capricious, or characterized by abuse of discretion. “Arbitrary or capricious” means the absence of a rational basis for the action taken; “abuse of discretion” generally results from a conclusion reached capriciously or in an arbitrary manner.
Mathieu v. New Orleans Pub. Libr., 09-2746, pp. 5-6 (La. 10/19/10), 50 So.3d
1259, 1262-63 (internal citations omitted).
DISCUSSION
On appeal, Mr. Do contends that the Commission erred in the following
respects:
• Finding that Mr. Do violated [Memo 13-10] by “processing” permits for his own properties, despite the closing-out of permits being a purely
• [The Commission], thus, must first determine if the appointing authority has met its initial burden—established the occurrence of the complained-of conduct and the impairment. If that initial burden is met, then [The Commission] must determine if the discipline imposed is commensurate with the misconduct.
Morrison v. New Orleans Police Dep’t, 22-0051, p. 6 (La. App. 4 Cir. 7/13/22), 344 So.3d 259, 264-65 (internal quotations and case citations omitted).
7 ministerial task that was a practice that was allowed and commonplace at the time;
• Finding that Mr. Do’s actions impaired the efficient operation of the public service; and
• Granting the ultimate penalty of termination.9
Mr. Do’s contentions coincide with the trio of factors that the appointing
authority has the burden of establishing before the Commission—misconduct,
impairment, and punishment. Morrison, 22-0051, pp. 6-7, 344 So.3d at 265.
Accordingly, we organize our analysis around those three factors.
Misconduct
The Commission found that the Department met its burden of proving the
misconduct. The Commission defined the misconduct as Mr. Do issuing
“certificates of completion, meter releases, and/or certificates of occupancy on
properties he owned, in clear violation of departmental policy.” Mr. Do does not
dispute that, in 2016 and 2017, he closed out permits on several NDT-owned
properties.10 Rather, he disputes the Commission’s finding that his admitted
conduct violates Memo 13-10. He contends that this Court should reverse the
Commission’s decision because his admitted conduct (i) was not a transaction, as
that term is used in Memo 13-10, requiring his recusal; (ii) was in accord with
custom and practice during the relevant period; and (iii) was the performance of an
administrative task.
9 Mr. Do additionally assigned as error the Commission’s “[a]ccrediting speculative and
unsubstantiated allegations while ignoring unrefuted evidence to the contrary by accepting the appointing authority’s assertions about undervalued permit fees and improper permit types.” This assignment is not relevant here. As the Department contends, the factual issues regarding “undervalued permit fees” and “improper permit types” are irrelevant to the reason that the Commission denied Mr. Do’s appeal—the Conflict of Interest Memo 13-10 Violation. 10 As the dissenting Commissioner observed, Mr. Do admitted closing out permits on his own
properties in 2016 and 2017.
8 Transaction under Memo 13-10 requiring recusal
Mr. Do first contends that his admitted conduct—closing out permits on his
companies’ properties—does not fall within the scope of a transaction covered by
Memo 13-10 and, thus, did not require his recusal. According to Mr. Do, Ms.
Jackson was the first director to inform him that he lacked the authority to close
out permits; and he followed her directive. Until then, he neither interpreted the
policy (Memo 13-10), nor was he informed by anyone in a position of authority
that he could not close out permits. Mr. Do contends that the Department’s action
against him is an improper attempt to enforce Ms. Jackson’s change in policy,
which he contends did not become effective until 2021, retroactively to
transactions that occurred in 2016 and 2017.
Agreeing with Mr. Do’s contention, the Hearing Officer observed:
[D]uring the relevant period, [the Department] did not consider closing out a permit a transaction from which [Mr. Do] was required to recuse himself. At best, the term “transaction”, as found in [Memo] 13-10, is an undefined word that was not interpreted until 2021 to include closing out permits.
And lastly, [Mr. Do] derived no financial benefit from closing out permits on properties that he owned. The record supports a conclusion that [Mr. Do] acted the same with his own properties as properties in which he had no financial interest. When he was informed that this practice created a perception of a conflict of interest in 2021, he ceased the practice.
Contrary to Mr. Do’s contention and the Hearing Officer’s observation, the
word transaction in Memo 13-10 is not ambiguous. As the Department points out,
although Memo 13-10 does not define the term transaction, the Louisiana Code of
Ethics defines a similar term—“transaction involving the governmental entity.”
See La. R.S. 42:1102(23)(a) (providing that “transactions involving the
governmental entity” include “any proceeding, application, submission, request for
9 a ruling or other determination, contract, claim, case, or other such particular
matter” which the public servant “knows or should know would be the subject of
action by the governmental entity”).11 There is not an exclusion in La.
R.S. 42:1102(23)(a) for de minimus transactions.
Likewise, Memo 13-10 does not contain an exclusion for transactions that
do not financially benefit an employee. Rather, Memo 13-10 prohibits certain
transactions that create an appearance of impropriety or a conflict of interest. See
Tebbe v. Louisiana Comm’n on Ethics for Pub. Emps., 540 So.2d 270, 273 (La.
1989) (observing that “[a] conflict of interest arises when a public servant is torn
between serving two masters: his private interest and the interest of the public”).
The purpose of conflict of interest provisions—like Memo 13-10—is “to
prevent public officers and employees from becoming involved in conflicts of
interest. It is not merely wrongdoing, but even the potential therefor, that the Code
seeks to avoid.” A.P.E., Inc. v. City of New Orleans, 13-1091, p. 9 (La. App. 4 Cir.
1/15/14), 132 So.3d 475, 481 (quoting In re Sea Shell, Inc., 509 So.2d 90, 91 (La.
App. 1st Cir. 1987) (affirming a finding that a corporation wholly owned by a
parish president’s siblings violated the ethics code by entering into a contract with
the parish to supply shell)). Moreover, conflict of interest provisions are strictly
construed. A.P.E., 13-1091, p. 9, 132 So.3d at 481 (citing 3 Eugene McQuillin,
THE LAW OF MUNICIPAL CORPORATIONS § 12:173.22 (3rd ed. 2012)).
Applying those principles, we conclude that Memo 13-10 is unambiguous; it
prohibits employees from processing any transaction on properties in which they
11 See also La. R.S. 42:1112 (prohibiting public employees from participating in transactions in
which the employee or the employee’s immediate family member has a substantial economic interest).
10 have an interest. Indeed, even the dissenting Commissioner observed that “[b]ased
on the documents offered into evidence, Mr. Do’s conduct of ‘closing out’ permits
was a conflict of interest under departmental policy [Memo 13-10].” Thus, Mr.
Do’s contention that closing out of a permit is not a transaction governed by
Memo 13-10 is unpersuasive.
Accepted custom and practice during the relevant period
Mr. Do next contends that the Department should be precluded from
disciplining him for following the accepted custom and practice, before Ms.
Jackson became director, that authorized him to close out permits. In support of
this argument, Mr. Do cites the testimony of his three witnesses—three former
Department employees—that, during the relevant period, Mr. Do acted
consistently with accepted custom and practice in closing out permits.
A similar argument was rejected in Bolar v. Dep’t of Pub. Works-Water, 95-
346 (La. App. 5 Cir. 10/31/95), 663 So.2d 876. In Bolar, the policy at issue
prohibited an employee from using a Parish-owned vehicle for personal business.
The plaintiff-employee contended that the accepted custom or practice allowed
him to violate the policy. The appellate court framed the issue as whether,
assuming that the former director allowed the plaintiff-employee to use the
assigned vehicle for personal use, the department can now discipline the plaintiff-
employee for violating the policy. Bolar, 95-346, p. 4, 663 So.2d at 878-79.
Answering that question in the affirmative, the appellate court observed: “[e]ven if
we assume the [plaintiff-employee’s] former director deliberately acquiesced [in]
the violation of the Department’s rules by permitting this [employee] to use his
11 assigned Parish vehicle for personal benefit, the instant conduct is clearly improper
and serves as a legitimate basis for disciplinary action.” Bolar, 95-346, p. 4, 663
So.2d at 879.12
By analogy, even assuming the accepted custom and practice under the
former directors authorized Mr. Do to close out permits on his companies’
properties, the Department would not be precluded from disciplining Mr. Do for
doing so. Contrary to Mr. Do’s suggestion, the record is devoid of any evidence
that the current disciplinary charge against him is an improper, retroactive attempt
to discipline him for a change in policy. Memo 13-10 has always prohibited
closing out permits on property in which an employee has an interest. In this
regard, Ms. Jackson testified, as noted elsewhere in this opinion, that Mr. Do’s
conduct of closing out permits on properties that his company owned was “a clear
conflict. That is policy. That was — that predates me.” Hence, Mr. Do’s custom
and practice argument is unpersuasive.
Performance of an Administrative Task
Mr. Do’s final contention regarding the misconduct factor is that closing out
permits is merely an administrative task and that the Commission erred in
mischaracterizing this administrative task as a serious policy violation. In support,
Mr. Do cites his testimony explaining that the permitting process has multiple parts
and emphasizing that his role in the transactions at issue was limited to the final,
12 See also Sanders v. Dep’t of Health & Hum. Res., 394 So.2d 629, 631-32 (La. App. 1st Cir.
1980) (observing that “charges of improper conduct, though condoned by an employee’s superior, may nevertheless be grounds for disciplinary action brought by a subsequent occupant of the superior position if such charges of improper conduct are the real motive for the disciplinary action”).
12 administrative part of closing out the permits.13 Mr. Do also emphasizes that
closing out permits can only occur after an independent inspection is conducted
and approved. He further testified that he had to close out permits because very
few other employees were available who had access to the LAMA system—the
Department’s computerized system on which permitting events were recorded and
applications were submitted. In still further support of his position, Mr. Do cites
the testimony of his three witnesses—former Department employees—that
processing a certificate of completion was a purely administrative step and had
nothing to do with approving a permit application or conducting an inspection.
Agreeing with Mr. Do’s position, the dissenting Commissioner observed
that the testimony of Mr. Do and his witnesses established that closing out permits
was a purely administrative task. Mr. Do’s evidence, the dissenting Commissioner
observed, was unrebutted by any witness with personal knowledge. The
Department’s sole witness—Ms. Jackson—acknowledged that she lacked personal
knowledge of the Department’s custom and practice before she became director in
2020. The dissenting Commissioner, thus, observed that the Department failed to
rebut Mr. Do’s evidence that the custom and practice of the Department was to
treat closing out permits as a purely administrative task under previous directors.
Rejecting Mr. Do’s characterization of closing out a permit as a purely
administrative task, the Commission observed that it credited Ms. Jackson’s
testimony that closing out a building or an electrical permit required review by an
13 According to Mr. Do, the process is as follows: (i) application is submitted by the contractor;
(ii) zoning review; (iii) application review; (iv) plan review; (v) permit is approved and issued, or additional information is requested; (vi) inspection—pass or fail; and (vii) close out—a certificate of occupancy is issued.
13 inspector and, thus, was not merely an administrative task. The Commission
further observed that “the grant of authority to ‘close out’ permits only to
inspectors support[ed] the Director’s testimony.” We agree. Indeed, one of Mr.
Do’s witnesses—Donna Foley, the Department’s former electrical secretary—
testified to this fact. As the Commission observed, Ms. Foley testified that “only
inspectors could issue a certificate of occupancy, and that she lacked this
authority.”
Regardless, even if closing out permits can be characterized as a purely
administrative task, Memo 13-10 does not differentiate between administrative
transactions and other type transactions. As the Department contends, “closing out
permits is still a prohibited ‘transaction’ under the Department’s conflicts of
interest policy.” Memo 13-10’s plain language prohibits an employee from
engaging in any transactions in which the employee has an interest. Thus, the term
transaction in Memo 13-10 is broad and encompasses any aspect of processing a
permit. Mr. Do’s argument that closing out permits is a mere administrative task
outside the scope of Memo 13-10 is unpersuasive. The record supports the
Commission’s finding that the Department met its burden of proving the
misconduct factor by a preponderance of the evidence.
Impairment
Addressing the impairment factor, the Commission found that the
Department carried its burden of showing impairment; it observed:
Ms. Jackson testified that Mr. Do exhibited a pattern of failing to disclose a conflict of interest between his personal financial interest and his official duties. He also created a perception of self-dealing. As Ms. Jackson stated in the termination letter, Mr. Do’s conduct impaired the “public confidence in the integrity of government.” Mr. Do approved transactions in the permitting process in which he and his brother had a
14 personal financial interest. Enforcement of conflict of interest policies is essential to combating public corruption.
Mr. Do contends that the Commission erred in concluding that his actions
impaired the efficient operation of the public service or could be seen as self-
dealing. In support, he cites the lack of any evidence of actual harm caused by his
conduct—no delays, no financial loss to the Department, no danger to the public,
and no undermining of any specific project. He points out that the transactions at
issue occurred in 2016 and 2017, before Ms. Jackson—the Department’s only
witness—became director. He contends that the Commission’s reliance on a
speculative perception of self-dealing and a generalized loss of public confidence
is misplaced. Mr. Do suggests that the Hearing Examiner’s factual findings should
be given greater deference than the Commission’s findings. This contention is
unpersuasive.
The Commission is “not bound to accept the hearing examiner’s factual
determinations and recommendation.” Jenkins v. New Orleans Police Dep't, 22-
0031, p. 2 n.4 (La. App. 4 Cir. 6/22/22), 343 So.3d 238, 240 (internal quotations
and citation omitted); see also Moton v. Sewerage & Water Bd. of New Orleans,
22-0747, p. 12 (La. App. 4 Cir. 5/10/23), 368 So.3d 151, 158 (quoting Jenkins,
supra). “The hearing examiner does not have the authority to make a final decision
or to uphold or reverse disciplinary action. That function lies solely with the
Commission.” Saacks v. City of New Orleans, 95-2074, p. 20 (La. App. 4 Cir.
11/27/96), 687 So.2d 432, 444 (citing LA. CONST., ART. X, § 12(B)). The Hearing
Examiner’s report is merely part of the record that is to be considered by the
15 Commission in making its determination. Here, the Commission reviewed the
Hearing Examiner’s report and rejected the Hearing Examiner’s recommendation
that Mr. Do’s appeal be granted. It is the Commission’ decision, not the Hearing
Examiner’s recommendation, that is before us.
The Commission correctly concluded that the Department proved the
impairment factor. See Penn v. New Orleans Police Dep’t, 01-1240, p. 3
(La. App. 4 Cir. 3/6/02), 812 So. 2d 847, 849 (rejecting employee’s
argument that “an alleged minor infraction” was insufficient to show an
impairment of the appointing authority’s efficient operation). As the
Department points out, the Commission correctly credited Ms. Jackson’s
testimony that Mr. Do exhibited a pattern of failing to disclose a conflict of
interest between his personal financial interest and his official duties.
In addition, Ms. Jackson testified that Mr. Do’s pattern of failing to disclose
his conflict of interest created a perception of self-dealing and impaired public
confidence in the Department’s integrity. At the hearing, Ms. Jackson testified as
follows:
With NDT Investments, you know, actually completing building events as well as electrical events on property that [Mr. Do] owned, I think that creates the perception of the self dealing when someone sees that properties that an inspector owns is being completed by the same inspector and/or his relative.
As the Commission noted, Mr. Do’s conduct “impaired the ‘public confidence’ in
the integrity of government.” Thus, Mr. Do’s argument that the impairment factor
was not met is unpersuasive.
16 Punishment
Lastly, the Commission found the Department carried its burden of showing
the punishment—termination—was commensurate with the offense; the
Commission observed:
Termination is commensurate with Mr. Do’s pattern of disregard of the conflict of interest policy of [the Department]. Mr. Do approved transactions in the permitting process in which he and his brother had a personal financial interest. Enforcement of conflict of interest policies is essential to combating public corruption.
Citing his lengthy employment with the Department coupled with his lack of
a prior disciplinary record, Mr. Do contends that the Commission erred in
upholding the most severe penalty of termination. The Department counters that
termination is commensurate with Mr. Do’s pattern of violations. The Department
contends that Mr. Do’s repeated misuse of his authority to close out permits on his
own properties demonstrated a pattern of policy violations, which supports
termination.
Conduct that “impairs the orderly operation of a public service in which an
employee is engaged can be grounds for disciplinary action, such as dismissal.”
Bosarge v. New Orleans St. Dep’t, 459 So.2d 693, 694 (La. App. 4th Cir. 1984)
(citations omitted). Lengthy tenure and lack of prior discipline are merely
mitigating factors that can be considered in determining the appropriate
punishment. See Lange v. Orleans Levee District, 10-0140, p. 17 (La. 11/30/10),
56 So.3d 925, 936 (observing that “longtime employment and lack of prior
discipline may be mitigating factors in the determination of an employee’s
punishment”). “Repeated infractions by an employee may justify dismissal.”
Fernandez v. Jefferson Par. Dep’t of Pub. Works-Sewerage, 22-319, p. 8 (La. App.
5 Cir. 2/27/23), 359 So.3d 531, 537; see also Bolar, 95-346, p. 4, 663 So.2d at 879
17 (citing pattern of misconduct in upholding decision to terminate employee for
violating policy prohibiting private use of Parish vehicles). Such is the case here.
Ms. Jackson testified that the reason the Department terminated Mr. Do was
because of the pattern of violations. Given the Department established a pattern of
misconduct, we conclude that the Commission did not err in finding the
Department met its burden of establishing that the punishment, termination, was
commensurate with the violation.
DECREE
For the foregoing reasons, the November 12, 2024 decision of the Civil
Service Commission for the City of New Orleans is affirmed.
AFFIRMED