O'Hern v. Department of Police

131 So. 3d 29, 2013 WL 5951809
CourtSupreme Court of Louisiana
DecidedNovember 8, 2013
DocketNo. 2013-C-1416
StatusPublished
Cited by22 cases

This text of 131 So. 3d 29 (O'Hern v. Department of Police) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Hern v. Department of Police, 131 So. 3d 29, 2013 WL 5951809 (La. 2013).

Opinion

PER CURIAM.

| iWrit granted. The ruling of the court of appeal is reversed and the decision of the Civil Service Commission is reinstated.

FACTS AND PROCEDURAL HISTORY

Officer Patrick O’Hern was employed by the New Orleans Police Department (hereinafter “NOPD”) as a classified Police Officer II. Following an investigation, the NOPD terminated Mr. O’Hern’s employment. Mr. O’Hern asserts that his termi[30]*30nation was unlawful because of failure to timely complete the investigation.

The investigation in question stems from the following incident. While on duty on December 12, 2009, Mr. O’Hern left his patrol assignment and went to his private vehicle. He drove to the top floor of a downtown parking garage, consumed a bottle of whiskey and ingested nearly a dozen Clonazepam (anti-anxiety) tablets. He then tasered himself and discharged his firearm over twenty times, shooting through the windshield and roof of the vehicle. Responding officers found Mr. O’Hern incapacitated and took him to a medical facility where he informed | {.personnel that he attempted to commit suicide. His blood alcohol content was 0.105%.

On the same date as the incident, Sergeant Lawrence Jones (hereinafter “Sgt. Jones”) of the NOPD Public Integrity Bureau began an investigation of Mr. O’Hern, examining possible violations of rules pertaining to his professional misconduct, performance of duty and criminal activity. Sgt. Jones issued a Form DI-1: “Initiation of a Formal Disciplinary Investigation,” which placed Mr. O’Hern on notice that his actions gave rise to a possible violation of “Rule 2: Moral Conduct; Paragraph 1: Adherence to Law,” relative to the illegal use of weapons or dangerous instrumental-ities. Pursuant to this notice, NOPD began a criminal investigation of Mr. O’Hern’s actions. On December 16, 2009, Sgt. Jones requested that Mr. O’Hern submit a criminal statement, which Mr. O’Hern refused. Mr. O’Hern was later arrested and pled nolo contedere to a violation of La. R.S. 14:94, which provides:

Illegal use of weapons or dangerous instrumentalities 'is the intentional or criminally negligent discharging of any firearm, or the throwing, placing, or other use of any article, liquid, or substance where it is foreseeable that it may result in death or great bodily harm to a human being.

On March 5, 2010, the NOPD began its administrative investigation and sent notice to Mr. O’Hern compelling an administrative statement, which took place on March 11, 2010. On April 27, 2010, Sgt. Jones sent Mr. O’Hern written notice pursuant to La. R.S. 40:2531(B)(7), outlining the sustained charges of misconduct and notifying him that the investigation was complete. Mr. O’Hern’s employment was subsequently terminated.

Mr. O’Hern appealed this decision, asserting unlawful termination for lack of cause and a violation of La. R.S. 40:2531(B)(7), on the basis that the investigation was not completed within sixty days. A hearing was held on August 4, 2011, before the Civil Service Commission (hereinafter “CSC”). The CSC | «denied Mr. O’Hern’s appeal, finding the NOPD established cause for the discipline imposed upon Mr. O’Hern and that the NOPD did not violate La. R.S. 40:2531 (B)(7).

Mr. O’Hern appealed the decision of the CSC, asserting the CSC erred in affirming the NOPD’s disciplinary action. The Fourth Circuit originally affirmed the decision of the CSC, finding no merit in Mr. O’Hern’s four assignments of error. On rehearing, however, the court of appeal reversed its decision and that of the CSC, finding the formal investigation exceeded the sixty-day time limit and this finding pretermitted discussion of the remaining issues.

The NOPD filed the instant writ application asserting the sixty-day time limit does not apply to the facts of this case because the investigation at issue involved allegations of criminal activity. The NOPD asserts that investigations of alleged criminal activity are not limited by the time delays [31]*31set forth in La. R.S. 40:2531(B)(7), which time delays only apply to investigations that do not involve criminal activity.

DISCUSSION

On the day of the incident, the investigating officer initiated a formal DI-1: “Initiation of a Formal Disciplinary Investigation,” because Mr. O’Hern’s actions gave rise to a possible violation of “Rule 2: Moral Conduct; Paragraph 1: Adherence to Law,” pertaining to the illegal use of weapons or dangerous instrumentalities. The plaintiff contends this marked the beginning of an administrative investigation, which according to La. R.S. 40:2531(B)(7), must be completed within sixty days, unless an extension is granted.

The language found in La. R.S. 40:2531 provides that an investigation shall be initiated within fourteen days of a formal complaint and, unless involving allegations of criminal activity, must be completed within sixty days. Specifically, the statute provides: “[e]xcept 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 within sixty days ...” However, the statute further states, “ ... nothing in this Paragraph shall limit any investigation of alleged criminal activity.”

Mr. O’Hern asserts the manner in which the administrative investigation was conducted constituted a violation of La. R.S. 40:2531 because he was an officer “under investigation facing possible disciplinary action, demotion, or dismissal.” La. R.S. 40:2531(C). Thus, Mr. O’Hern contends the NOPD’s argument that the initial investigation was a criminal investigation tolling the sixty-day rule is inapplicable in this case because a criminal investigation does not result in disciplinary actions, but an administrative investigation does. On the other hand, the NOPD contends the initial investigation, which began on the date of the incident, was a criminal investigation and the administrative investigation did not begin until March 5, 2010, when the criminal investigation was converted into an administration investigation.

The plain language of the statute suggests a criminal investigation is distinct from a civil administrative investigation. At the CSC hearing, Sgt. Jones testified that because of the incriminating circumstances of the incident, a criminal investigation was required prior to an administrative investigation to determine whether Officer O’Hern was to be prosecuted by the District Attorney. Based on the criminal investigation conducted by Sgt. Jones, Mr. O’Hern was arrested and, upon release, was placed on desk duty by the NOPD so that the administrative investigation could begin. Therefore, it is clear the administrative investigation did not begin until March 5, 2010, when the NOPD informed Mr. O’Hern that his statement was required to initiate the administrative investigation. As stated above, La. R.S. 40:2531(B)(7) provides that nothing must interfere with a criminal investigation.

1 ¿Furthermore, jurisprudence establishes that a criminal investigation tolls the time limit for the administrative investigation. In Franklin v. Department of Police, 2010-1581 (La.App. 4 Cir. 4/6/11), 66 So.3d 87, (unpub’d) writ denied, 69 So.3d 1157, (La.9/23/11), the Fourth Circuit affirmed a finding of the CSC, which upheld the termination of an officer.

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Bluebook (online)
131 So. 3d 29, 2013 WL 5951809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohern-v-department-of-police-la-2013.