RANDI GANT * NO. 2019-CA-0640
VERSUS * COURT OF APPEAL NEW ORLEANS POLICE * DEPARTMENT FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS
****** Judge Tiffany G. Chase ****** (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase)
Donovan A. Livaccari LIVACCARI LAW LLC 101 W. Robert E. Lee Blvd., Suite 402 New Orleans, LA 70124
COUNSEL FOR PLAINTIFF/APPELLANT
Renee Goudeau ASSISTANT CITY ATTORNEY Elizabeth S. Robins DEPUTY CITY ATTORNEY Sunni J. LeBeouf CITY ATTORNEY 1300 Perdido Street Room 5E03 New Orleans, LA 70112
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED DECEMBER 4, 2019 This is a civil service case. Randi Gant (hereinafter “Sgt. Gant”) appeals the
June 6, 2019 judgment of the Civil Service Commission (hereinafter “the
Commission”) which upheld her dismissal by the New Orleans Police Department
(hereinafter “the NOPD”). After consideration of the record before this Court and
the applicable law, we affirm the decision of the Commission.
FACTS AND PROCEDURAL HISTORY
Sgt. Gant, a fifteen-year veteran of the NOPD, was assigned to an
administrative position within the NOPD’s Investigation and Support Bureau
(hereinafter “ISB”). Her duties included fleet management wherein she was
responsible for tracking and reporting the mileage of city owned vehicles assigned
to ISB personnel. In addition, Sgt. Gant was responsible for monitoring
compliance with NOPD’s policies regarding take-home vehicles.1
NOPD Policy 705.2 of the NOPD Policy Manual mandates that a “take-
home vehicle shall not be assigned to an employee when the one-way driving
1 As defined in the NOPD Policy Manual, a take-home vehicle is one “assigned to personnel for their use within their job assignment [that] may be used for work-related purposes and to transport the employee to and from work.”
1 distance from the employee’s actual domicile to the employee’s primary reporting
to work site is greater than 40 miles.” NOPD Policy 705.2 also mandates that “[a]
department member assigned a take home vehicle shall complete a City of New
Orleans Take Home Vehicle Add/Delete/Change Form” (hereinafter “take-home
vehicle form”). A payroll deduction is required for use of a take-home vehicle and
an accompanying policy of the City of New Orleans sets the rates at which
employees, who make use of a take-home vehicle, receive a deduction in their
payroll. Employees who live within 0-20 miles of their work site receives a $24.04
weekly deduction while employees who live greater than twenty miles from their
work site receive a $72.12 weekly deduction.
Sgt. Gant is married to Victor Gant (also a sergeant in the NOPD) and, since
2007, the couple maintained a marital residence in Covington (hereinafter “the
marital residence”). The ISB offices are located at 715 South Broad Street in New
Orleans. The parties stipulated the distance between the marital residence and the
ISB offices is greater than forty miles.
In 2013 or 2014, Sgt. Gant’s husband was added to the lease on an
apartment rented by one of his friends on Emerald Forest Boulevard (hereinafter
“the Emerald Forest address”).2 The parties stipulated that the Emerald Forest
address is less than forty miles from the ISB offices. Sgt. Gant’s husband testified
that he would occasionally stay at this apartment to better respond to emergency
calls to report to duty although he acknowledged the marital residence was his
2 Although Sgt. Gant’s husband could not recall when he was added to the lease, an employee of the apartment complex’s management provided a date range.
2 primary address. He confirmed that Sgt. Gant never lived at the Emerald Forest
address and that her name did not appear on the lease. He further testified that Sgt.
Gant never had a key although she did have an access card to the apartment
complex’s parking lot. In September 2015, the lease ended and Sgt. Gant’s
husband no longer had access to the Emerald Forest address.
On June 30, 2016, Sgt. Gant executed a take-home vehicle form. She listed
her address as the Emerald Forest address. Sgt. Gant signed and initialed the form
affirming she was aware of the policies regarding take-home vehicles and that the
one-way driving distance between her actual domicile and her primary work site
was 37.4 miles.
In 2018, Sgt. Gant was investigated for irregularities in the NOPD’s payroll
system regarding her take-home vehicle. Lt. Precious Banks (hereinafter “Lt.
Banks”) of the NOPD’s Public Integrity Bureau conducted the investigation. The
three charges investigated were premised on Rule 4, Paragraph 2 (Instructions
from an Authoritative Source) with one charge pertaining to take-home vehicles.
During the course of the investigation, Lt. Banks confirmed that Sgt. Gant did not
reside at the Emerald Forest address. Lt. Banks further discovered that Sgt. Gant
had been using the log-in of a subordinate to access the NOPD’s payroll system
and enter mileage ranges associated with her take-home vehicle.3 Sgt. Gant had
manually selected the 0-20 miles range option instead of the 20-40 miles range
3 The NOPD did not pursue discipline for Sgt. Gant’s use of another employee’s log-in credentials, as it later determined that they were provided voluntarily as the employee was unable to satisfactorily perform her task of payroll data entry.
3 option. When giving her statement to Lt. Banks, Sgt. Gant contended the
erroneous payroll entries were an unintentional mistake, and filed a series of
payroll adjustment forms to repay the monetary amounts that should have been
properly deducted from her payroll.
On August 31, 2018, Sgt. Gant was issued a Notice to the Accused of
Completed Investigation and Notice of Pre-Disciplinary Hearing form. Lt. Banks
recommended that the original Rule 4, Paragraph 2 charges be dismissed. Three
additional charges were also listed: 1) Rule 4, Performance of Duty, Paragraph 2:
Instructions from an Authoritative Source (NOPD Policy 705 Take Home
Vehicles);4 2) Rule 6: Official Information, Paragraph 2: False or Inaccurate
Reports (City of New Orleans Take Home Vehicle Add/Delete/Change Form and
NOPD Vehicle Inventory Reporting Form); and 3) Rule 6: Official Information,
Paragraph 2: False or Inaccurate Reports (ADP Payroll Records, 44 payroll
periods). Lt. Banks recommended these charges be sustained.
On November 14, 2018, the NOPD conducted a Superintendent’s
Disciplinary Committee pre-disciplinary hearing. The NOPD did not sustain the
Rule 4, Paragraph 2 charge. However, it sustained the Rule 6, Paragraph 2 charges
as to the take-home vehicle form and payroll entries. The penalty for these
violations was dismissal. Sgt. Gant appealed this decision to the Civil Service
Commission.
4 This charge carried over from one of the three original charges with the only difference being a numerical re-designation of the take-home vehicle policy.
4 A hearing was conducted by a Civil Service Commission Hearing Examiner
at which testimony was heard from Sgt. Gant, her husband, Lt. Banks, Deputy
Superintendent John Thomas (hereinafter “Deputy Superintendent Thomas”),5 and
former Deputy Superintendent Rannie Mushatt (hereinafter “Deputy
Superintendent Mushatt”).6 Evidence introduced into the record included the take-
home vehicle form, documentation of the investigation and resulting discipline,
and the NOPD’s rules, policies, and penalty matrix. On June 6, 2019, the
Commission rendered its decision denying Sgt. Gant’s appeal. Sgt. Gant filed her
appeal to this Court. STANDARD OF REVIEW
Appellate courts review an appeal of a decision by the Civil Service
Commission under a multifaceted standard of review.
In Banks v. New Orleans Police Dep’t., 2001–0859, p. 3 (La.App. 4 Cir. 9/25/02), 829 So.2d 511, 513–14, we articulated the standard of review in civil service cases. First, the review by appellate courts of the factual findings in a civil service case is governed by the manifest error or clearly erroneous standard. Second, when the Commission's decision involves jurisdiction, procedure, and interpretation of laws or regulations, judicial review is not limited to the arbitrary, capricious, or abuse of discretion standard. Instead, on legal issues, appellate courts give no special weight to the findings of the trial court, but exercise their constitutional duty to review questions of law and render judgment on the record. A legal error occurs when a trial court applies the incorrect principles of law and such errors are prejudicial. Finally, a mixed question of fact and law should be accorded great deference by appellate courts under the manifest error standard of review. See Stern v. New Orleans City Planning Comm’n, 2003-0817, pp. 5-6 (La.App. 4 Cir. 9/17/03), 859 So.2d 696, 699–700.
5 Deputy Superintendent Thomas is the current head of the ISB and served as chairperson on the three-member panel in Sgt. Gant’s Disciplinary Hearing before the NOPD. 6 Deputy Superintendent Mushatt, now retired, was the former head of the ISB at the time the events underlying the charges against Sgt. Gant transpired.
5 Russell v. Mosquito Control Bd., 2006-0346, pp. 7-8 (La.App. 4 Cir. 9/27/06), 941
So.2d 634, 639-40.
DISCUSSION
Sgt. Gant presents three assignments of error on appeal. The first two
assignments of error relate to the substantive findings of the Commission
challenging the existence of cause for Sgt. Gant’s dismissal and that her dismissal
was commensurate with the offense. The third assignment of error is a procedural
challenge wherein Sgt. Gant seeks to have her dismissal declared an absolute
nullity. We organize our discussion of these assignments of error into two
sections, addressing the procedural challenge first.
PROCEDURAL CHALLENGE: NOTICE
Sgt. Gant argues that because the NOPD did not comply with the notice
requirements of La. R.S. 40:2531(B)(1),7 her discipline of dismissal should be
deemed an absolute nullity pursuant to La. R.S. 40:2531(C). At the Commission
hearing, the following exchange took place between counsel for Sgt. Gant and the
Hearing Examiner:
7 La. R.S. 40:2531(B)(1) provides:
B. Whenever a police employee or law enforcement officer is under investigation, the following minimum standards shall apply:
(1) The police employee or law enforcement officer being investigated shall be informed, at the commencement of interrogation, of the nature of the investigation and the identity and authority of the person conducting such investigation, and at the commencement of any interrogation, such officer shall be informed as to the identity of all persons present during such interrogation. The police employee or law enforcement officer shall be allowed to make notes.
6 COUNSEL FOR SGT. GANT:
Just to be safe for – for clarity and the stipulation, it’s the time – the – the requirements of [La. R.S. 40:2531(B)(7)] that we’re stipulating to, the timeline – the time requirements, right?
Fair point.
COUNSEL FOR SGT. GANT:
Okay. Thank you.
I mean, I guess, for the reader of the record, the required – there’s no dispute on the appellant’s part that the investigation was completed within the timeline required by [La. R.S. 40:2531(B)(7).]
Yes, sir.
Okay. And that [it] is my understanding that the appellant intends to make a different argument with respect to the investigation – with respect to –
No –
– its adherence to the law?8
– I don’t have any plans on that at this point.
8 From the foregoing exchange, we infer that the “different argument” regarding the “adherence to the law” is the La. R.S. 40:2531(B)(1) argument briefed in Sgt. Gant’s third assignment of error.
7 Although counsel for Sgt. Gant would later elicit testimony from witnesses related
to the La. R.S. 40:2531(B)(1) argument, there was never a formal motion made on
the record. See Rivet v. Dep’t of Police, 2018-0229, pp. 13-14 (La.App. 4 Cir.
10/24/18), 258 So.3d 111, 121-22 (employee made a procedural due process
argument alleging insufficient notice and raised it before the Commission in a
motion for summary disposition). The report of the Hearing Examiner does not
reveal that the argument was raised, nor does the opinion of the Commission
render any decision regarding a potential failure to follow the procedural
requirements of the statute.9
Finding nothing in the record establishing that the La. R.S. 40:2531(B)(1)
issue was raised in any of the proceedings below, we decline to consider the issue
now raised for the first time on appeal. See Razor v. New Orleans Dep’t of Police,
2004-2002, pp. 5-6 (La.App. 4 Cir. 2/15/06), 926 So.2d 1, 5.
9 The following three assignments of error are listed in Sgt. Gant’s Notice of Appeal from the Commission’s decision:
A. The Civil Service Commission erred in determining that cause existed as required by La. Const. Art. 10, Sec. 8 to discipline Appellant. B. The Civil Service Commission erred in determining that the penalty assessed against the Appellant was commensurate with the offense. C. The Civil Service Commission erred in its interpretation of an NOPD [regulation] which is overly broad and unduly vague.
A and B mirror the first two assignments of error presented in Sgt. Gant’s appeal to this Court. The argument in C is incorporated into Sgt. Gant’s first assignment of error related to lawful cause. No reference is made to a challenge pursuant to La. R.S. 40:2531.
8 SUBSTANTIVE CHALLENGE: FINDINGS OF THE COMMISSION
Sgt. Gant’s substantive challenge to the Commission’s decision requires a
two prong inquiry: 1) whether the NOPD had cause for dismissing Sgt. Gant; and
2) whether the dismissal was commensurate with the offense. See Abbott v. New
Orleans Police Dep’t., 2014-0993, p. 8 (La.App. 4 Cir. 2/11/15), 165 So.3d 191,
197. We address each separately.
Discipline for Cause
“An employee with permanent status in the classified civil service cannot be
subject to disciplinary action by his employer except for cause expressed in
writing.” Regis v. Dep’t of Police, 2013-1124, p. 1 (La. 6/28/13), 121 So.3d 665
(per curiam) (citations omitted). Here, the NOPD is required to establish cause by
proving, by a preponderance of the evidence, that the complained of conduct
occurred, and that the complained of conduct impaired the efficiency of the
department.10 Id., p. 2, 121 So.3d at 665. This Court should not modify the
Commission’s order unless it is arbitrary, capricious, or characterized by an abuse
of discretion. Id. (citing Bannister v. Dep’t of Streets, 1995-0404, p. 8 (La.
1/16/96), 666 So.2d 641, 647). A decision by the Commission is “arbitrary and
capricious” if there is no rational basis for the Commission’s action. Id.
10 The Commission found that Sgt. Gant’s submission of false information impaired the efficiency of the department noting “[h]er conduct was particularly troubling given her role in ISB involved managing a fleet of vehicles and enforcing the very policies she violated.” It further concluded the false entries into the payroll system were “arguably a worse offense given that she reaped a direct financial benefit” and that the department’s fleet of vehicles is maintained with public funds. On Sgt. Gant’s appeal to this Court, she does not challenge these findings.
9 Rule 6, Paragraph 2 provides: “An employee shall not knowingly make, or
cause or allow to be made, a false or inaccurate oral or written record or report of
an official nature, or intentionally withhold material matter from such report or
statement.” Sgt. Gant challenges the Commission’s finding of cause for two
reasons: 1) that the take-home vehicle form and payroll entries are not covered by
the rule; and 2) that her inaccuracies were not knowingly made. We address these
two arguments in turn.
First, Sgt. Gant argues that the take-home vehicle form and payroll entries
should not be considered as records or reports of an official nature and thus are
outside the scope of Rule 6, Paragraph 2. She contends that Paragraph 2, read in
pari materia with the other Paragraphs under Rule 6, dictates that its applicability
should be limited to police reports and not internal administrative documents.
The Commission noted the issue of whether Rule 6, Paragraph 2 should
apply to a take-home vehicle form is a matter of first impression for the
Commission and the NOPD. Deputy Superintendents Mushatt and Thomas, along
with Lt. Banks, testified that, in their experience, only police reports and daily
activity sheets have been subject to disciplinary proceedings under Rule 6,
Paragraph 2. However, Deputy Superintendent Thomas also testified that “based
off the investigation, [the NOPD] determined that [the take-home vehicle form at
issue] was an official form of an inaccurate report, a false or inaccurate report.”
We observe that under the arbitrary and capricious standard, the NOPD is entitled
10 to deference in the interpretation of its own rules. See Bowers v. Firefighters’
Retirement System, 2008-1268, p. 4 (La. 3/17/09), 6 So.3d 173, 176.
The language of Rule 6, Paragraph 2 does not limit the definition of a
“report of an official nature” to one that could impact the course of an
investigation. The Commission noted that while the rule does not define a “report
of an official nature,” take-home vehicle forms and payroll records are maintained
by the NOPD in the normal course of business. It further rejected Sgt. Gant’s
argument that the rule should not apply unless the report is “material.”11 The
Commission reasoned that the NOPD would have specifically limited Rule 6,
Paragraph 2 if it so intended, as in contrast, the “rule requiring honesty and
truthfulness covers knowingly false statements that are ‘material,’ and defines a
material statement as one that could impact ‘the course or outcome of an
investigation or official proceeding.’” Where the NOPD wanted to limit the scope
of its rules, it affirmatively did so within the rule itself. We find the Commission’s
interpretation reasonable.
In Sgt. Gant’s second argument as to an insufficient finding of cause, she
avers she did not knowingly violate Rule 6, Paragraph 2. Sgt. Gant believed she
had the right to list the Emerald Forest address on her take-home vehicle form
because her husband was on the lease and that this right of access extended to her
given the marital relationship. Sgt. Gant also argues that she was not aware her
11 The Commission determined that since the second independent phrase is disjunctive, the word “material” only applies as a requirement that a matter be material if it is intentionally withheld from a report. Sgt. Gant does not re-urge this argument in her appeal to this Court.
11 husband’s lease expired in 2016, when she used it on the take-home vehicle form.
As it pertains to the payroll entries, Sgt. Gant argues her selection of the 0-20 miles
option was a mistake and that her arrangement to correct the mistake by the payroll
adjustment forms should weigh in favor of her credibility.12
The Commission found that Sgt. Gant knowingly violated Rule 6, Paragraph
2 when she used the Emerald Forest address on the take-home vehicle form. The
Commission noted Sgt. Gant, who managed ISB’s fleet of vehicles, was
knowledgeable of the mileage limitations. She did not use the Emerald Forest
address for any other official purposes. Testimony from Sgt. Gant and her husband
confirmed the fact that she never resided at the Emerald Forest address and, at all
relevant times, resided at the marital residence. Further, Sgt. Gant admitted she
was using the Emerald Forest address as a “workaround” to fit within the NOPD’s
take-home vehicle policy. The Commission observed that Sgt. Gant likely avoided
putting 20,000 miles on her personal vehicle as a result.
The Commission also found that Sgt. Gant knowingly violated Rule 6,
Paragraph 2 when she entered the 0-20 miles payroll entries. Noting that she made
this alleged “mistake” forty-four times and evaded approximately $2,000 in
deductions, the Commission concluded that “[t]he number of errors combined with
the financial benefit and [Sgt. Gant’s] role within ISB make it more likely than not
that [Sgt. Gant] purposefully selected the lesser mileage deduction.” It further
12 In her testimony before the Commission, Sgt. Gant suggests the mistake was due to the fact that she used to enter the payroll information for Deputy Superintendent Mushatt and other officers who were in the 0-20 mile range: “I don’t know if it was just repetitive because I’m just 0 to 20, 0 to 20, 0-20. But I – I can’t explain it because I didn’t realize I was doing it.”
12 found Sgt. Gant’s attempt to repay the money following her statement to Lt. Banks
to be unpersuasive in regards to her credibility.
The Commission weighed the evidence and determined the NOPD
established that Sgt. Gant knowingly violated Rule 6, Paragraph 2 in falsifying
both the take-home vehicle form and the payroll entries. This Court has previously
held that ‘“deference will be given to the factual conclusions of the Commission.”’
Pope v. New Orleans Police Dep’t, 2004-1888, p. 6 (La.App. 4 Cir. 4/20/05), 903
So.2d 1, 4 (quoting Smith v. New Orleans Police Dep’t, 1999-0024, p. 5 (La.App.
4 Cir. 9/22/99), 743 So.2d 834, 837). Here there is sufficient evidence in the
record to support the Commission’s factual conclusions. We therefore find Sgt.
Gant’s argument that the Commission erred in finding she knowingly falsified
official reports to be without merit.
Discipline Commensurate with Offense
Sgt. Gant argues the Commission erred in finding the discipline of dismissal
was commensurate with her offense. In support, Sgt. Gant notes that she was
initially charged with violations of Rule 4, Paragraph 2 (a Level C violation)
which, as applied here, would have only resulted in a five day suspension subject
to mitigating or aggravating circumstances. Sgt. Gant then offers her fifteen year
career with only one other minor disciplinary incident and praise from former
Deputy Superintendent Mushatt as potential mitigating factors. Nonetheless, Sgt.
Gant acknowledges that Rule 6, Paragraph 2 (as a level G violation) does not allow
for any mitigation.
13 “It is well settled that this Court should not modify the discipline imposed
by the Commission unless it is ‘arbitrary, capricious, or characterized by an abuse
of discretion.’” Rivet, 2018-0229, p. 10, 258 So.3d at 120 (quoting Cure v. Dep’t
of Police, 2007-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1095). Great
deference should be afforded to the Commission’s ruling upholding the
disciplinary decision of the NOPD – “neither the [Commission] nor the reviewing
court may serve as a de facto pardon board.” Rivet, 2018-0229, pp. 10-11, 258
So.3d at 120 (citations omitted).
The Commission found the NOPD’s argument that severe penalties should
accompany violations of Rule 6, Paragraph 2 because it would be problematic if
such a compromised officer be required to serve as a material witness in a criminal
prosecution to be persuasive. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,
10 L.Ed.2d. 215 (1963) and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31
L.Ed.2d 104 (1972). Although, Deputy Superintendent Mushatt disagreed that
such concerns apply to Sgt. Gant’s misconduct because internal forms are not
relevant to criminal prosecution, Deputy Superintendent Thomas testified that it
would still be a problem to have an officer’s ethics placed at issue. We
acknowledge a degree of attenuation in the NOPD’s reasoning as, by the nature of
her position, it would be unlikely for Sgt. Gant to serve as a material witness in a
criminal prosecution. However, under the arbitrary and capricious standard, the
NOPD need only advance a rational basis for its disciplinary decision. We find the
14 Commission’s reliance on the NOPD’s Brady and Giglio concerns to be a
reasonable basis to support a penalty of dismissal.
The Commission also noted that dismissal was the only disciplinary sanction
Rule 6, Paragraph 2 provided for in the NOPD’s penalty matrix. Deputy
Superintendent Thomas testified he served on the NOPD’s Compliance Bureau
when the rule was drafted. He stated that as law enforcement officers are given
great deference in their actions, they must live up to a higher standard. This Court
has similarly noted that as “[t]he public puts its trust in the [NOPD] as a guardian
of its safety,” the NOPD should “be allowed to establish and enforce appropriate
standards of conduct for its employees sworn to uphold that trust.” See Rivet,
2018-0229, p. 8, 258 So.3d at 118 (quoting Stevens v. Dep’t of Police, 2000-1682,
p. 8 (La.App. 4 Cir. 5/9/01), 789 So.2d 622, 627). Thus, we find the Commission
was reasonable in determining Sgt. Gant’s dismissal was a penalty commensurate
with her offense. See Rivet, 2018-0029, p. 11, 258 So.3d at 120.
DECREE
For the foregoing reasons, the judgment of the Civil Service Commission is
affirmed.
AFFIRMED