Terry v. Department of Police

23 So. 3d 974, 2008 La.App. 4 Cir. 1436, 2009 La. App. LEXIS 1766, 2009 WL 3210304
CourtLouisiana Court of Appeal
DecidedOctober 7, 2009
DocketNo. 2008-CA-1436
StatusPublished
Cited by4 cases

This text of 23 So. 3d 974 (Terry v. Department of Police) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Terry v. Department of Police, 23 So. 3d 974, 2008 La.App. 4 Cir. 1436, 2009 La. App. LEXIS 1766, 2009 WL 3210304 (La. Ct. App. 2009).

Opinion

Judge MICHAEL E. KIRBY.

_JjNew Orleans Police Officer Ashley Terry requests a review of the September 22, 2008 decision of the Civil Service Commission which summarily dismissed her appeal on the ground that she had no legal right to appeal the ruling of the Appointing Authority, the City of New Orleans Department of Police, as she had not completed the requisite one-year probationary period. We affirm.

Officer Terry was employed by the City of New Orleans Department of Public Works as a parking control officer from April 29, 2007 through June 16, 2007. During that time, she was accepted by the city as a “police recruit” and began training at the Police Academy to become a police officer. After completing the training, Officer Terry was promoted to Police Officer I status on April 2, 2008. Three months later, on July 15, 2008, Officer Terry improperly displayed her firearm in public while off duty. Following an investigation and disciplinary hearing, the N.O.P.D. notified Officer Terry by letter dated July 24, 2008, that she was terminated.

12Officer Terry timely appealed her termination to the Civil Service Commission. The Appointing Authority filed a motion for summary disposition, arguing that Officer Terry was a probationary employee and, therefore, had no right to appeal her termination. In support of its motion, the Appointing Authority submitted Officer Terry’s civil service employment record indicating her employment status as probationary for a period beginning April 2, 2008 and ending April 1, 2009. The Civil Service Commission granted the Appointing Authority’s motion and dismissed the appeal.

On appeal, Officer Terry argues that the Civil Service Commission erred in determining she had no right to appeal her termination. She contends that her time of service as a police recruit and a parking control officer should be cumulated and credited toward tenured status. Officer Terry maintains that she became a regular employee with permanent status in the civil service upon her promotion to Police Officer I in April 2008.

Except in cases of alleged discrimination, the burden of proof on appeal, as to the facts, shall be on the Appointing Authority under Civil Service Rule II, § 4.4 and § 4.8. In a civil service case, the appellate court’s review of the findings of fact is governed by the manifest error or clearly erroneous standard. Goins v. Department of Police, 570 So.2d 93 (La.App. 4 Cir. 10/30/90). “Where the [Civil Service] Commission’s decisions involve jurisdiction, procedure, and interpretation of laws and regulations, judicial review is not limited to the arbitrary, capricious, or abuse of discretion standard.” Walton v. French Market Corporation, 94-2457 (La.App. 4 Cir. 4/26/95), 654 So.2d 885, 887. On legal issues, the appellate court gives no special weight to the findings of the Civil Service Commission, but exercises its constitutional duty to review questions of law and renders judgment on the record. Christoffer v. New Orleans Fire Dept. 99-2658 (La.App. 4 Cir. 3/29/00), 757 So.2d 863, writ denied 2000-1413 (La.6/30/00), 766 So.2d 543. A mixed ques[976]*976tion of fact and law should be accorded great deference by the reviewing court under the manifest error standard of review. Brasseaux v. Town of Mamou, 99-1584, pp. 7-8 (La.1/19/00), 752 So.2d 815, 820-821.

“Except when there is an allegation of discrimination under Civil Service Rule II, § 4.6, there is no provision for appeal by a probationary employee.” Walton, 94-2457, 654 So.2d at 887. In the present case, Officer Terry did not allege any form of discrimination in her challenge to her termination. Unless Officer Terry is considered a permanent employee, she has no right to appeal her dismissal. See id. “The question whether an employee has the right to appeal is analogous to the question whether a plaintiff has a cause of action.” Id.

Officer Terry contends that she obtained regular employee status because she had completed more than one year in the service of the city given her time as a police recruit and parking control officer. She maintains that her one-year working test period began to run when she became a police recruit in April 2007.

In Banks v. New Orleans Police Department, 2001-0859, 2001-1302, p. 3 (La.App. 4 Cir. 9/25/02), 829 So.2d 511, 513 this Court en banc considered the issue of whether Banks, who was classified as a Police Officer I, had the right to appeal disciplinary action considering he had completed one year of training as a [4police recruit at the Police Academy. The Court emphasized that “[t]he right of appeal is determined by [the officer’s] employment status.” Id.

A “regular” employee is distinguished from a “probational” employee based on whether the working test period is completed. Mariani v. Police Dept., 96-0871 (La.App. 4 Cir. 12/27/96), 686 So.2d 1012, 1014, writ denied, 97-0276 (La.3/14/97), 689 So.2d 1389. In that case, in finding that several police recruits had no right to appeal their terminations, this Court discussed the probationary period of a police recruit but did not reach a discussion about the probationary or working test period of an employee who had completed police recruit training and was promoted to Police Officer I status.

Under “Definitions” in Civil Service Rule I, § 1(61) provides:

“Regular Employee”: an employee who has been appointed to a position in the classified service in accordance with the Law and these Rules and who has completed the working test period. [Emphasis added.]

Civil Service Rule I, § 1(77) provides:

“Working Test Period Employee”: an employee who has been appointed to a position from an employment list, but who has not completed the working test period. The terms “probation period” and “probational employee” shall be considered identical with “working test period” and “working test employee”.

La. R.S. 33:2393 also provides definitions. La. R.S. 33:2393(27) provides:

27. “Regular employee” means an employee who has been appointed to a position in the classified service in accordance with this Part after completing his working test period. [Emphasis added.]

La. R.S. 33:2417 provides, in pertinent part:

§ 2417. Working tests
Every person appointed to a position in the classified service ... shall be tested by a working test while | .^occupying the position. The period of the working test shall commence immediately upon appointment and shall continue for the time, not less than [977]*977six months nor more than one year, established by the director subject to the rules. At the times during the working test period and in the manner which the director requires, the appointing authority shall report to the director his observation of the employee’s work, and his judgment as to the employee’s willingness and ability to perform his duties satisfactorily, and as to his habits and dependability. At any time during his working test period, after the first two months thereof, the appointing authority may remove an employee if, in the opinion of the appointing authority, the working test indicates that (1) the employee is unable or unwilling to perform his duties satisfactorily or (2) his habits and dependability do not merit his continuance in the service.

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23 So. 3d 974, 2008 La.App. 4 Cir. 1436, 2009 La. App. LEXIS 1766, 2009 WL 3210304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/terry-v-department-of-police-lactapp-2009.