Sabrina Richardson v. New Orleans Police Department

• Court: Louisiana Court of Appeal
• Decided: July 10, 2024
• Docket: 2023-CA-0757
• Status: Published

Opinion

SABRINA RICHARDSON * NO. 2023-CA-0757

VERSUS * COURT OF APPEAL NEW ORLEANS POLICE * DEPARTMENT FOURTH CIRCUIT * STATE OF LOUISIANA *******

CONSOLIDATED WITH: CONSOLIDATED WITH:

SABRINA RICHARDSON NO. 2023-CA-0793

VERSUS

NEW ORLEANS POLICE DEPARTMENT APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 9409 ****** Judge Roland L. Belsome ****** (Court composed of Chief Judge Terri F. Love, Judge Roland L. Belsome, Judge Joy Cossich Lobrano) LOBRANO, J., CONCURS IN THE RESULT. Kevin Vincent Boshea ATTORNEY AT LAW 2955 Ridgelake Drive, Suite 207 Metairie, LA 70002 COUNSEL FOR PLAINTIFF/APPELLEE Donesia D. Turner CITY ATTORNEY William R. H. Goforth Elizabeth Robins Corwin M. St. Raymond ASSISTANT CITY ATTORNEY 1300 Perdidio Street Room 5E03 New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLANT

REVERSED AND RENDERED JULY 10, 2024 Appellant, New Orleans Police Department (“NOPD”) appeals the decision

of the Civil Service Commission (“Commission”) that reduced the suspension of RLB TFL appellee, Sabrina Richardson (“Richardson”) from 119 days to 2 days.

Richardson, a captain on the police force, was suspended for claiming work hours

for NOPD while she was also being paid for a private detail for the New Orleans

Fairgrounds (“Fairgrounds”). For the reasons below, we reverse the decision of

the Commission and reinstate the NOPD’s decision.

Summary of facts

On November 23, 2021, the Superintendent of Police and the Public

Integrity Bureau (“PIB”) received an anonymous complaint via departmental mail

alleging that Richardson was receiving payments for private details that she did not

work at the Fairgrounds. The complainant alleged that Richardson was signing in

at the Fairgrounds and then going home instead of providing security patrols in and

around the Fairgrounds. It is undisputed that Richardson worked private details for

the Fairgrounds for six years prior to the date of the complaint. Police officers are

permitted to engage in secondary employment while working for NOPD. The City

of New Orleans established the Office of Police Secondary Employment

1 (“OPSE”) to administer and manage police secondary employment. Secondary

employers such as Fairgrounds are considered “clients” of OPSE and OPSE

records the officers’ working hours and manages payroll for the clients. When an

officer such as Richardson “clocks in” or “out” at a secondary employment site,

that information is automatically conveyed to OPSE and the officer is paid

accordingly. In order to investigate the anonymous complaint, Captain Nicholas

Gernon (“Gernon”) compared Richardson’s NOPD timesheet records with her paid

detail timesheets. This comparison showed seventeen instances in which

Richardson claimed work hours for NOPD at the same time that she recorded

compensable time working private details. On average, the overlaps were

approximately four hours each.

As part of his investigation, Gernon also attempted to verify whether

Richardson had been in locations other than her secondary employment site during

hours recorded by OPSE. Gernon identified 10 instances in which Richardson’s

license plate was read by NOPD cameras at places other than the location of her

paid details. Richardson claimed that one of those license plate sightings from the

camera on Chef Menteur Highway resulted from the loan of her car to a friend who

was moving while she worked a detail at the Superdome for the Bayou Classic.

The other nine sightings were in Algiers near Richardson’s home.

Gernon brought his findings to the PIB with an allegation that Richardson

had violated NOPD Operations Manual Chapter 22.08, paragraph 25,1 which

provides:

1 In addition to the overlapping hours charge, Gernon concluded that Richardson violated

NOPD’s policies that prohibited officers from working more than 16 ½ hours per day and more than 24 hours per week on a secondary detail. Richardson does not contest these charges in this appeal and the Commission assessed no penalties against her on account of those violations. 2 Members authorized to work police secondary employment may perform or engage in authorized assignments only during the hours they are off-duty. Members may accept and work a police secondary employment opportunity when not on duty or while on authorized leave.

At the time of the anonymous complaint, Richardson held the rank of

commander2 and was the head of PIB. She was charged with the oversight and

management of approximately 35 people from March 2019 until November 2021.

The general office hours of PIB are 8 a.m. to 4 p.m. As a commander or captain,

Richardson was categorized as an Executive Administrative Professional (“EAP”).

Officers in these positions are not required to “punch a clock” and are trusted to

work at least a 40-hour week.3 EAPs are on call and have professional

responsibilities at all hours every day of the year. Richardson headed PIB when 13

of the 17 instances of overlapping work hours occurred.

Richardson held the rank of lieutenant at the time of the other 4 incidents.

Lieutenants are not categorized as EAPs and must account for their time on an

hourly basis.

Prior proceedings

On August 24, 2022, a panel of 3 Deputy Superintendents held a pre-

disciplinary hearing to consider the charges against Richardson. The panel

concluded that she was guilty of 17 instances of overlapping NOPD work hours

and secondary employment. Based on the nature of the violations, the panel

determined that they fit within Class C of the NOPD’s Penalty Matrix. Following

the guidelines of the matrix, the panel assessed a penalty of 119 days of

2 Commander is an unclassified rank. 3 Captain Precious Banks, who succeeded Richardson as head of PIB, testified that she works

from 8 a.m. to 4 p.m. 3 suspension, treating each overlap as a separate infraction. The panel considered

and implemented both aggravating and mitigating factors.

Richardson appealed the disciplinary action to the Commission.

After a three-day evidentiary hearing, the Commission issued a decision on

September 13, 2023. NOPD filed a motion for rehearing that resulted in an

amended decision dated October 2, 2023. The Commission’s decision reduced

Richardson’s penalty from 119 days to 2 days of suspension from duty. From this

decision, both parties filed separate appeals. The two appeals were consolidated

for decision here.

Standard of review

We review decisions of the Commission applying the manifest error

standard for all findings of fact. Rulings of law are reviewed de novo. Walters v.

Dep't of Police of City of New Orleans, 454 So.2d 106, 114 (La. 1984). In addition,

this court may modify or reverse an action of the Commission upon a finding that

it acted arbitrarily or capriciously. A decision is arbitrary or capricious if there is

no rational basis for the action taken. Bannister v. Department of Streets, 95-0404,

p. 8 (La. 1/16/96), 666 So.2d 641, 647. As we review the actions of the

Commission, we are mindful that the Commission may not reduce a disciplinary

penalty simply because it has a view different of the appropriate penalty from that

of the hiring authority. Stevens v. Dep't of Police, 00-1682, p. 7 (La. App. 4 Cir.

5/9/01), 789 So.2d 622, 626.

Legal analysis

In its decision, the Commission made two observations in support of its

modification of the NOPD ruling. First, it opined that Richardson’s penalty was

greater than that applied to other similar offenders. Second, the Commission noted 4 that NOPD improperly relied on the pay records compiled by ADP, the city’s

timekeeping vendor. We disagree with both observations.

Comparing penalties. At about the same time that NOPD was investigating

the anonymous complaint regarding Richardson, the Federal Bureau of

Investigation was investigating 11 officers for public payroll fraud and wire fraud

related to police secondary employment. The Professional Standards and

Accountability Bureau (“PSAB”) of NOPD also conducted an audit of payroll

records. That audit resulted in formal disciplinary investigations of 26 officers by

PIB. Deputy Chief Arlinda Westbrook ordered PSAB to determine whether any

PIB officers were violating secondary employment rules. This audit was designed

to avoid investigation by PIB officers who had conflicts of interest as a result of

their own violations. The audit reflected that Richardson, along with others, was

in violation of NOPD policy.

The Commission compared Richardson’s penalty with those of other

violators and determined that her penalty was too harsh. This form of analysis is

incorrect. There is no legal support for the proposition that the Commission may

reduce a penalty because it is greater than one imposed on another employee.4 In

addition, the Commission chose to compare Richardson’s penalty with that of

other officers who had reached a negotiated settlement with NOPD. This is a

substantial difference because the negotiated settlements came with an admission

of guilt and significant savings in the cost of investigation. NOPD also emphasized

that those officers who received lesser penalties were charged with creating a

4 Richardson mistakenly relies on Waguespack v. New Orleans Police Dep’t, 22-0270 (La. App.

4 Cir. 11/30/22), 353 So. 3d 338, for support of the proposition. In Waguespack, the court did mention that others similarly situated were punished equally, but that was only an observation in support of NOPD’s imposition of a punishment. It was never the sole basis for a determination of the propriety of a penalty. 5 secondary employment work schedule that conflicted with NOPD work hours.

Those officers did not purport to have worked both schedules. In other words,

Richardson was accused of billing hours to 2 employers. The other officers were

charged with creating scheduling difficulties.

Reliance on ADP time records. As noted above, Gernon reached his

conclusion that Richardson was in violation of policy primarily by comparing the

timekeeping records of ADP and OPSE. Richardson argues that the ADP records

are meaningless because they arbitrarily assign time to AEP employees who are

not required to punch a clock. She also argues that her agreement with

Fairgrounds also excused her from time-clock style accountability. By this logic,

Richardson could never be held accountable for actual attendance at any of her

work sites. That is an untenable result.

It is noteworthy that Gernon testified that most of Richardson’s secondary

employment time cards were in her own handwriting. NOPD and Richardson are

in agreement that it was Richardson’s duty to review her time records and correct

any errors on both ADP and OPSE records. She did not make any such

corrections, nor did she offer an alternative accounting of her time in her appeal to

the Commission.

Richardson, herself, testified that she routinely worked her detail at the

Fairgrounds during normal business hours for six years. Considering Richardson’s

salary, the public has a right to expect that her primary employment as head of PIB

would be treated as more than a part-time job. The most basic principle by which

NOPD and the Commission must be guided is that any penalty must be based on a

real and substantial relationship between the improper conduct and the “efficient

operation” of the department. Newman v. Dep't of Fire, 425 So.2d 753, 754 (La. 6 1983). One could reasonably infer that Richardson’s regular absence from the

place where her 35 subordinates worked would negatively affect the efficient

operation of her department.

We are persuaded by NOPD’s argument that it would have been appropriate

for NOPD to increase the penalty for Richardson’s violations based on the level

and scope of her responsibility and the nature of her position. As a captain

supervising the department that investigates misconduct by members of NOPD,

Richardson should be held to a higher standard. We believe that it is fair to expect

such a high-ranking member of NOPD to report a pattern of abuse, not profit from

it.

We hold that the Commission’s variance from NOPD’s reasoning is

arbitrary and capricious. We further hold that Richardson’s loose interpretation of

her obligations to her position in the department negatively affected its efficient

operation. When those who are charged with enforcing departmental rules and

policies take a laissez-faire attitude toward their duties, it is almost inevitable that

the entire organization will follow suit.

For the reasons set forth above, we reverse the decision of the Commission

and reinstate Richardson’s suspension for 119 days.

REVERSED AND RENDERED.