RHETT CHARLES * NO. 2019-CA-0232
VERSUS * COURT OF APPEAL NEW ORLEANS POLICE * DEPARTMENT FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 8736 Hearing Officer Jay Ginsberg ****** Judge Regina Bartholomew-Woods ****** (Court composed of Judge Roland L. Belsome, Judge Regina Bartholomew-Woods, Judge Paula A. Brown)
Kevin Vincent Boshea 2955 Ridgelake Drive, Suite 207 Metairie, LA 70002 COUNSEL FOR PLAINTIFF/APPELLANT
Elizabeth Robins DEPUTY CITY ATTORNEY Renee Goudeau ASSISTANT CITY ATTORNEY Donesia D. Turner CHIEF DEPUTY CITY ATTORNEY Sunni J. LeBeouf CITY ATTORNEY 1300 Perdido Street, Room 5E03 New Orleans, LA 70112 COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED SEPTEMBER 16, 2020 RBW
RLB
PAB
Appellant, a sergeant with the New Orleans Police Department, seeks review
of the Civil Service Commission’s October 5, 2018 ruling that upheld his two (2)
day suspension for violating New Orleans Police Department Rule 4: Performance
of Duty, Paragraph 4(B) Supervisory Responsibility for failure to properly
investigate a complaint of misconduct against an officer with the New Orleans
Police Department. For the reasons that follow, we affirm the Civil Service
Commission’s ruling upholding the New Orleans Police Department’s two (2) day
suspension of Appellant.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
At the time of the underlying events that gave rise to the discipline imposed,
Appellant, Sergeant Rhett Charles (“Appellant”), had been employed by the New
Orleans Police Department (“NOPD”) for twenty-eight (28) years and was a
1 permanent, classified employee. The discipline imposed on Appellant stems from
his investigation of a complaint of misconduct against NOPD Officer Taralyn
Webster (“Officer Webster”).
On March 27, 2015, Officer Webster investigated a traffic accident that
occurred at the intersection of Napoleon and South Claiborne Avenues in New
Orleans, Louisiana.1 Upon arriving at the scene of the traffic accident, Officer
Webster activated her body-worn camera and interviewed the drivers involved in
the traffic accident. Officer Webster did not make an immediate assessment of
fault for the traffic accident. While at the scene and engaged in conversation with a
driver involved in an earlier accident, Officer Webster deactivated her body-worn
camera. After the accident, Officer Webster met with a member of the City
Attorney’s Traffic Court Division, but did not supplement her report. In her report,
Officer Webster erroneously stated that the vehicle’s airbags deployed as a result
of the traffic accident and misstated the date the traffic accident occurred.
Appellant reviewed the audio and visual footage captured by Officer
Webster’s body-worn camera and interviewed Officer Webster. Appellant
concluded that the conversation regarding the relevant traffic accident had
concluded at the time when Officer Webster deactivated her body-worn camera.
Further, Appellant asserted that the policy regarding the body-worn camera was
not in effect until after the traffic accident at issue.2 Appellant was aware that
1 According to Appellant, Officer Webster was assigned to investigate two (2) separate accidents that occurred at the same intersection. 2 Policy 41.3.10 entitled, “Body-Worn Camera (“BWC”)” was revised 04/05/2015; it replaced policy 447, entitled, “Body-Worn Camera (“BWC”)”, which had been adopted on 03/11/2014
2 Officer Webster had contacted the City Attorney Traffic Division, but this
information was omitted from the report. At the time of the traffic accident, Officer
Webster had recently returned to work from injury or sick leave. Prior to Officer
Webster’s leave, the crash reports were generated on paper, not computer; in the
report at issue, she inadvertently struck an erroneous key when indicating whether
the vehicle’s airbags deployed. Appellant believed that Officer Webster’s error
deserved counseling and training rather than a sustained DI-1 violation.3 Appellant
found Officer Webster’s alleged violation of deactivating her body-worn camera
not sustained and found Officer Webster’s alleged violation of not making an
immediate determination of fault unfounded.
On May 11, 2015,4 an administrative hearing was held before NOPD
Captain (Ret.) Frederick Morton of the Alternative Response Unit. At the
conclusion of the hearing, Capt. Morton recommended that the charge against
Appellant be sustained, but that Appellant receive the discipline of a Letter of
Reprimand.
and was in effect during the pertinent time period of the instant matter. For purposes of this matter, the language contained in the subsection of the policy entitled, “Cessation of Recording” under both Policy 41.3.10 and Policy 447 are identical and state the following, in pertinent part, “Once the BWC system is activated it shall remain on and shall not be turned off until an investigative or enforcement contact or incident has concluded. For purposes of this section, conclusion of an incident has occurred when an officer has terminated contact with an individual, cleared the scene of a reported incident, or has completed transport of a civilian or an arrestee. In any instance in which cessation of the recording prior to the conclusion of an incident may be permitted, the officer must seek and obtain supervisory approval prior to deactivating the BWC.” 3 Appellant testified that “if there’s an oversight or something that just needs to be corrected we [] normally give it back to the officer and have him correct it. . . . And in [] this incident the wrongs were just an oversight that didn’t get put into the proper places.” 4 The record indicates May 11, 2016, which is clearly erroneous and the proper date should be May 11, 2015.
3 On May 13, 2015, Captain Ernest Demma (“Capt. Demma”) of NOPD’s
Field Operations Bureau issued an internal memorandum to the Superintendent of
Police, in which he stated that he disagreed with Capt. Morton’s suggested penalty
and recommended a two (2) day suspension. The (then) Superintendent of Police,
Michael Harrison agreed with Capt. Demma’s recommended discipline.
On October 26, 2015, NOPD Deputy Superintendent Paul Noel5 (“Deputy
Superintendent Noel”) reviewed Appellant’s investigation of Officer Webster and
found that Appellant’s recommendations were inconsistent with NOPD policies,
particularly the policy regarding body-worn cameras, as well as the policy
regarding the failure to assess fault and issue a traffic citation. Deputy
Superintendent Noel reviewed the footage recorded by Officer Webster’s body-
worn camera, and concluded that her body-worn camera was deactivated while she
was still speaking with a driver about an accident. For this reason, he concluded
that the corresponding violation should have been sustained. Deputy
Superintendent Noel recognized various mistakes in Appellant’s report – for
example, although Officer Webster did consult with the City Attorney regarding
the March 27, 2015 traffic accident, Appellant neglected to note that in his
investigation report; Appellant contended that this was merely an oversight.
Deputy Superintendent Noel concluded that Appellant’s investigation and
recommendations were negligent. As a result, on November 9, 2015, Deputy
Superintendent Noel initiated a Public Integrity Bureau (“PIB”) investigation
5 At the time of this investigation, Deputy Superintendent Noel was the Commander for the NOPD Second District where Appellant was assigned.
4 against Appellant. During the course of his twenty-one (21) years’ tenure with the
NOPD, this was the first time Deputy Superintendent Noel initiated a PIB
investigation against an investigator in such an instance.
On November 23, 2015, Lieutenant Jenerio Sanders (“Lt. Sanders”) who is
employed by the NOPD as a PIB Investigator within NOPD’s Second District
conducted the administrative investigation against Appellant. On December 18,
2015, Lt. Sanders sustained a violation of Rule 4: Performance of Duty; Paragraph
4(b); Neglect of Duty, Supervisory Responsibility against Appellant. This was
Appellant’s first violation. Lt. Sanders concluded that Appellant failed to address
Officer Webster’s consultation with the City Attorney Traffic Division, dismissed
mistakes in Officer Webster’s traffic accident report as unfounded, and failed to
find that Officer Webster violated the policy regarding the deactivation of body-
worn camera.
On November 2, 2017, the (then) Superintendent of Police Michael Harrison
issued a letter to Appellant outlining his two (2) day suspension, effective the week
of November 5, 2017, and his right to appeal the decision to the Civil Service
Commission (“CSC”).
Appellant timely appealed his suspension. On October 5, 2018, the CSC
affirmed the two (2) day suspension. It is from this affirmation that Appellant has
filed the appeal with this court.
5 DISCUSSION
Assignments of Error
On Appeal, Appellant raises two (2) assignments of error:
1. Whether the CSC erred in upholding the NOPD’s two (2) day suspension
of Appellant; and
2. Whether the NOPD met its burden of proof.
In summary, Appellant’s assignments of error address whether the CSC abused its
discretion and acted arbitrarily and capriciously by upholding the NOPD’s two (2)
day suspension for his violation of NOPD Rule 4: Performance of Duty, Paragraph
4(B) Supervisory Responsibility for failure to properly investigate a complaint of
misconduct against Officer Webster.
Standard of Review
The Louisiana Supreme Court, in consideration of an appeal from a CSC
ruling, has explained that:
[a]n employee with permanent status in the classified civil service cannot be subject to disciplinary action by his employer except for cause expressed in writing. La. Const. art. X, § 8(A); Lange v. Orleans Levee Dist., [20]10-0140, p. 2 n. 2 (La. 11/30/10), 56 So.3d 925, 928 n. 2. Legal “cause” for disciplinary action exists when the employee’s conduct “impairs the efficient or orderly operation of the public service.” Civil Service Rule 1.5.2.01; AFSCME, Council # 17 v. State ex rel. Dep't of Health & Hosp., 01-0422, p. 8 (La. 6/29/01), 789 So.2d 1263, 1268. The appointing authority must prove, by a preponderance of the evidence, the occurrence of the complained of activity and that the conduct did in fact impair the efficient and orderly operation of the public service. See Newman v. Dep’t of Fire, 425 So.2d 753, 754 (La. 1983).
6 Regis v. Dep’t of Police, 2013-1124, pp. 1-2 (La. 6/28/13), 121 So.3d 665. This
Court explained that:
[t]he standard of review for civil service cases in the appellate courts is multifaceted. See Muhammad v. New Orleans Police Dep’t., 2000-1034, p. 4 (La. App. 4 Cir. 7/11/01), 791 So.2d 788, 790. When reviewing the Commission’s findings of fact, the appellate court must apply the clearly wrong or manifestly erroneous standard. However, when judging the Commission’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, the reviewing court should not modify the Commission’s order unless it is arbitrary, capricious or characterized by abuse of discretion. Id., 00-1034, pp. 4-5, 791 So.2d at 790-91 (citing Wilson v. New Orleans Aviation Bd., 1996-1350, p. 2 (La. App. 4 Cir. 1/15/97), 687 So.2d 593, 595). Therefore, the appropriate standard of appellate review of actions by the Civil Service Commission is to determine whether the conclusion reached by the Commission is arbitrary or capricious. Id. (citing Palmer v. Dep’t. of Police, 97-1593 (La. App. 4 Cir. 1/28/98), 706 So.2d 658). As in other civil matters, deference should be given on appellate review to the factual conclusions of the Commission. Id. (citing Newman v. Dep’t. of Fire, 425 So.2d 753 (La. 1983)). It is only when this court finds that the Commission’s actions were arbitrary or capricious that it can disturb the Commission’s judgment. Id.
Aucoin v. Dep’t of Police, 2016-0287, pp. 3-4 (La. App. 4 Cir. 3/29/17), 229 So.3d
531, 533.
Analysis
The NOPD penalty matrix outlines the level of discipline assigned to violations of either
NOPD policies or Louisiana state law.6 Cunningham v. New Orleans Police Dep’t, 2018-0095, p.
6 The information contained in this chart was taken directly from the NOPD’s Procedure Manual’s Disciplinary Hearing and Penalty Schedule in effect at the time of Appellant’s alleged violations. This Court takes judicial notice of the NOPD Penalty Schedule, which is accessible in the public domain. Mendoza v. Mendoza, 2017-0070, p. 6 (La. App. 4 Cir. 6/6/18), 249 So.3d 67, 71, writ denied, 2018-1138 (La. 8/31/18), 251 So.3d 1083; Felix v. Safeway Ins. Co., 2015-0701, p. 7 (La. App. 4 Cir. 12/16/15), 183 So.3d 627, 632 & n.10.
7 6 (La. App. 4 Cir. 10/10/18), 257 So.3d 801, 805. The matrix, in pertinent part,
shows the penalty schedule for NOPD Rule 4: Performance of Duty, Paragraph
4(B) Supervisory Responsibility,7 the offense that Appellant allegedly violated,
and provides that “[a] member with supervisory responsibility shall be in neglect
of duty whenever he fails to properly supervise subordinates, or when his actions
in matters relating to discipline fail to conform with the dictates of Departmental
Rules and Regulations.”
Title Category 1st Offense 2nd Offense 3rd Offense On Duty/Off XXXXXXXX R8-309 30-D10 D Duty - Color of Law
Following a hearing, the CSC found that NOPD met its burden of proving
that Appellant violated NOPD Rule 4: Performance of Duty, Paragraph 4(B)
Supervisory Responsibility when he failed to properly investigate a complaint of
misconduct against Officer Webster, to wit: she failed to properly process a report
regarding a traffic incident and prematurely terminated her body-worn camera.
This Court, in Meisch v. Dep’t of Police, explained:
The CSC has a duty to determine whether the appointing authority has a good or lawful cause for taking disciplinary action and if so, whether punishment imposed is commensurate with the dereliction. Walters v. Dep’t of Police, 454 So.2d 106, 114 (La.1984); See Taylor v. New Orleans Police Dep't, 00–1992, p. 3 (La. App. 4 Cir. 12/12/01), 804 So.2d 769, 772 (2001).
7 NOPD Rule 4: Performance of Duty, Paragraph 4(B) Supervisory Responsibility was adopted September 1, 2013 (NOPD Policy 1021.6.4). 8 The letter “R” represents “reprimand.” 9 The numbers represent the number of suspension days (working days). 10 The letter “D” represents “dismissal.”
8 The discipline must have a rational basis to be commensurate with the dereliction or it is deemed arbitrary and capricious. Staehle v. Dep’t of Police, [19]98-0216 (La. App. 4 Cir. 11/18/98), 723 So.2d 1031, 1032, 1033; Walters, supra at 114.
2012-0702, p. 11 (La. App. 4 Cir. 2/20/13), 110 So.3d 207, 214.
The first prong of our analysis addresses whether Appellant violated NOPD
rules or policies. This Court, in Clark v. Dep’t of Police, explained that NOPD
“must prove: 1) that a violation of interdepartmental rules or policies occurred; and
2) that the violation impaired the efficient operation of the department.” 2018-
0399, p. 5 (La. App. 4 Cir. 10/10/18), 257 So.3d 744, 748. Appellant did not
sustain Officer Webster’s alleged violation of prematurely deactivating her body-
worn camera and found Officer Webster’s alleged violation of failing to properly
process a report regarding a traffic accident unfounded; NOPD determined that
Appellant’s aforementioned recommendations were inconsistent with applicable
NOPD policies, which have been outlined hereinabove and for that reason, NOPD
imposed a two (2) day suspension against Appellant.
Body-worn camera
Appellant argues that the NOPD policy regarding body-worn cameras that
was introduced at the CSC hearing had an effective date of April 5, 2015, which
took effect after the March 27, 2015 traffic accident. Appellant raised this
argument at the CSC hearing, but did not object to the April 5, 2015 policy being
admitted into evidence. This Court has explained that “[i]t is well established that
when a party fails to contemporaneously object to the introduction of objectionable
9 evidence, that party waives the right to complain of the issue on appeal.” Aisola v.
Beacon Hosp. Mgmt., Inc., 2013-1101, p. 10 (La. App. 4 Cir. 4/2/14), 140 So.3d
71, 78.
Moreover, as noted earlier, Policy 41.3.10 entitled, “Body-Worn Camera
(“BWC”)” was revised on 04/05/2015; it replaced policy 447, entitled, “Body-
Worn Camera (“BWC”)”, which had been adopted on 03/11/2014 and was in
effect during the pertinent time period of the instant matter. For purposes of this
matter, the language contained in the subsection of the policy entitled, “Cessation
of Recording” under both Policy 41.3.10 and Policy 447 are identical.
Furthermore, the CSC, in its findings—in a footnote—acknowledged the
following: The [CSC] observes that the [body-worn camera] policy in evidence has an effective date of April 5, 2015 [,] and purports to revise and replace an earlier version. Given that [Appellant] did not object to the introduction of the policy, the [CSC] finds that there were no substantive differences between the policy in place at the time of the vehicle accident Officer Webster investigated (March 27, 2015) and the April 5th version in evidence.
Pursuant to the NOPD body-worn camera policy, an officer must keep their body-
worn camera activated “until an investigative or enforcement contact or incident
has concluded.” The policy further defines the conclusion of an investigative or
enforcement contact or incident as “when an officer has terminated contact with an
individual, cleared the scene of a reported incident or has completed transport of a
civilian or arrestee.” At the CSC hearing, Deputy Superintendent Noel testified that
he reviewed the footage captured by Officer Webster’s body-worn camera and
10 observed that the body-worn camera was terminated while Officer Webster was
still interacting with one of the drivers regarding an earlier traffic accident. As a
result, Deputy Superintendent Noel concluded that Officer Webster had violated
NOPD policy. Appellant contended that Officer Webster was interacting with a
driver concerning a different traffic accident. Lt. Sanders testified that despite the
fact that Officer Webster may have been discussing a different traffic accident, she
was still engaged in investigatory activities and her body-worn camera should have
remained activated in accordance with applicable NOPD policy pertaining to body-
worn cameras.
Traffic Report
Officer Webster failed to assess fault and issue a traffic citation at the scene
of the March 27, 2015 traffic accident. Additionally, Officer Webster’s report
contained errors regarding the date of the traffic accident and air bag deployment.
Pursuant to NOPD Policy 502.4, “when a reasonable determination of fault cannot
be established, the officer must consult with the City Attorney for the New Orleans
Traffic and Municipal Court within five (5) business days and the City Attorney’s
recommendations must be documented in a supplemental report.” While Officer
Webster did, in fact, consult with the City Attorney, she failed to file a
supplemental report documenting the City Attorney’s recommendation and
Appellant failed to include that information in his report; Appellant explained that
it was “an oversight.” Additionally, Appellant concluded that Officer Webster’s
errors concerning the date of the traffic accident and air bag deployment
11 constituted mistakes or oversights that simply needed to be corrected or “put into
the proper places.” Appellant testified that at the time of the traffic accident at
issue, Officer Webster had recently returned to work after a prolonged absence due
to injury or illness and was unaccustomed to completing traffic reports on the
computer rather than on paper; consequently, Officer Webster had inadvertently
struck an erroneous key. Appellant concluded that Officer Webster needed
counseling or training rather than being subjected to a disciplinary violation.
NOPD asserted that Appellant’s conclusion that Officer Webster’s alleged
violations were unfounded and not sustained were so erroneous that they
constituted supervisory negligence. NOPD further asserted that Appellant was
either unfamiliar with NOPD policies or failed to conduct a thorough investigation.
Appellant admitted that in making his conclusions regarding Officer Webster’s
alleged violation, he “went off the top of [his] head.” As such, Appellant’s
unfamiliarity with NOPD policies impaired NOPD’s efficient operations.
The CSC recognized that Appellant took into consideration Officer Webster’s
recent return to duty from a prolonged absence due to injury or illness, but
concluded that such a mitigating factor was appropriate for consideration in the
penalty phase of the investigation, not the violation phase. The CSC found that
NOPD proved that Appellant failed to execute his supervisory duty. We agree with
the CSC’s conclusion and find that the CSC did not err.
12 Two (2) day suspension
The second prong of our analysis addresses the two (2) day suspension that
NOPD imposed on Appellant. This Court, in Clark, explained that “[t]he
punishment imposed on a police officer for violating police department rules must
be commensurate with the dereliction. Walters, 454 So.2d at 113. ‘The discipline
must have a rational basis to be commensurate with the dereliction or else it is
arbitrary and capricious.” Waguespack v. Dep’t of Police, [20]12-1691, p. 5 (La.
App. 4 Cir. 6/26/13), 119 So.3d 976, 978.’” 2018-0399, pp. 6-7 (La. App. 4 Cir.
10/10/18,); 257 So.3d at 749. Pursuant to the NOPD penalty matrix, a first offense
for a violation of Rule 4: Performance of Duty; Paragraph 4(B) Supervisory
Responsibility carries a penalty range from a letter of reprimand to a thirty (30)
day suspension. Here, this was Appellant’ first offense of Rule 4: Performance of
Duty; Paragraph 4(B) Supervisory Responsibility, and NOPD only imposed a two
(2) day suspension, which is well within the lower-end of the penalty range
available to the NOPD. We find that the two (2) day suspension that NOPD
imposed and the CSC upheld was not arbitrary and capricious.
CONCLUSION
For the aforementioned reasons, we affirm the CSC’s ruling upholding
NOPD’s two (2) day suspension of Appellant.
AFFIRMED