RASHI REED Vs. DEPARTMENT OF POLICE

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RASHI REED * NO. 2006-CA-1498 VERSUS * COURT OF APPEAL DEPARTMENT OF POLICE * FOURTH CIRCUIT * STATE OF LOUISIANA CONSOLIDATED WITH: CONSOLIDATED WITH: DONNA AUBERT NO. 2006-CA-1500 VERSUS DEPARTMENT OF POLICE CONSOLIDATED WITH: CONSOLIDATED WITH: SHYRA ALLEN NO. 2006-CA-1647 VERSUS DEPARTMENT OF POLICE CONSOLIDATED WITH: CONSOLIDATED WITH: WILLIE LEE NO. 2007-CA-0171 VERSUS DEPARTMENT OF POLICE CONSOLIDATED WITH: CONSOLIDATED WITH: RONALD MOORE NO. 2007-CA-0360 VERSUS DEPARTMENT OF POLICE CONSOLIDATED WITH: CONSOLIDATED WITH: ERIC DOUCETTE NO. 2007-CA-0361 VERSUS DEPARTMENT OF POLICE CONSOLIDATED WITH: CONSOLIDATED WITH: CARL DAVIS NO. 2007-CA-0364 VERSUS DEPARTMENT OF POLICE CONSOLIDATED WITH: CONSOLIDATED WITH: SHAWN MADISON NO. 2007-CA-0366 VERSUS DEPARTMENT OF POLICE CONSOLIDATED WITH: CONSOLIDATED WITH: RHONDA HILL NO. 2007-CA-0367 VERSUS DEPARTMENT OF POLICE CONSOLIDATED WITH: CONSOLIDATED WITH: KERMIT HENRY NO. 2007-CA-0368 VERSUS DEPARTMENT OF POLICE CONSOLIDATED WITH: CONSOLIDATED WITH: ERROL WASHINGTON NO. 2007-CA-0796 VERSUS DEPARTMENT OF POLICE CONSOLIDATED WITH: CONSOLIDATED WITH: LEANDER WINFORD NO. 2007-CA-0797 VERSUS DEPARTMENT OF POLICE ******* APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NOS. 7104 C/W 7119 C/W 7089 C/W 7099 C/W 7101 C/W 7115 C/W 7272 C/W 7284 C/W 7117 C/W 7118 C/W 7113 C/W 7114 ****** JUDGE MAX N. TOBIAS, JR. ****** (COURT COMPOSED OF CHIEF JUDGE JOAN BERNARD ARMSTRONG, JUDGE CHARLES R. JONES, JUDGE PATRICIA RIVET MURRAY, JUDGE JAMES F. MCKAY III, JUDGE DENNIS R. BAGNERIS SR., JUDGE MICHAEL E. KIRBY, JUDGE TERRI F. LOVE, JUDGE MAX N. TOBIAS, JR., JUDGE DAVID S. GORBATY, JUDGE EDWIN A. LOMBARD, JUDGE LEON A. CANNIZZARO, JR., JUDGE ROLAND L. BELSOME) CANNIZZARO, J., CONCURS WITH REASONS. BAGNERIS, J., DISSENTS FOR THE REASONS ASSIGNED BY JUDGE LOMBARD. LOVE, J., DISSENTS. LOMBARD, J., DISSENTS. BELSOME, J., DISSENTS WITH REASONS. GARY M. PENDERGAST GARY M. PENDERGAST, L.L.C. 1515 POYDRAS STREET SUITE 2260 NEW ORLEANS, LA 70112 COUNSEL FOR RASHI REED, ERIC DOUCETTE AND RHONDA HILL CHERYL MITCHEL GAINES P. O. BOX 3796 SILVER SPRING, MD 20918 COUNSEL FOR DONNA AUBERT KENNETH M. PLAISANCE 2061 NORTH MIRO STREET NEW ORLEANS, LA 70119 COUNSEL FOR SHYRA ALLEN AND WILLIE LEE FRANK G. DESALVO DESALVO DESALVO & BLACKBURN, APLC 530 NATCHEZ STREET SUITE 305 NEW ORLEANS, LA 70130 COUNSEL FOR RONALD MOORE ROWENA T. JONES NEW ORLEANS LEGAL ASSISTANCE CORPORATION 1010 COMMON STREET, SUITE 1400A NEW ORLEANS, LA 70112 COUNEL FOR SHAWN A. MADISON JAMES E. STOVALL 514 EAST LOCKWOOD STREET COVINGTON, LA 70433-2941 COUNSEL FOR LEANDER WINFORD JAMES B. MULLALY ASSISTANT CITY ATTORNEY PENYA MOSES-FIELDS CITY ATTORNEY HEATHER M. VALLIANT ASSISTANT CITY ATTORNEY JOSEPH V. DIROSA, JR. CHIEF DEPUTY CITY ATTORNEY VICTOR L. PAPAI, JR. ASSISTANT CITY ATTORNEY 1300 PERDIDO STREET CITY HALL - ROOM 5E03 NEW ORLEANS, LA 70112 COUNSEL FOR DEFENDANT/APPELLANT JUDGMENTS VACATED ; REMANDED WITH INSTRUCTIONS. OCTOBER 10, 2007 We consolidated these matters solely to consider the common issue of whether the New Orleans Civil Service Commission (“CSC”) erred as a matter of law by holding that because the New Orleans Police Department (“NOPD”) did not hold pre-termination hearings pursuant to CSC Rule IX, §1.2, the discipline imposed against the plaintiffs/appellees, all NOPD officers, was illegal.1 For the 1 Rule IX, §1.2 provides: In every case of termination of employment of a regular employee, the appointing authority shall conduct a pre-termination hearing as required by law and shall notify the employee of the disciplinary action being recommended prior to taking action. 1 reasons that follow, we hold that Hurricane Katrina, with its effects upon the city of New Orleans and its government, was an extraordinary event such that the NOPD could discipline the officers without a pre-termination hearing. We further hold that, under these unique circumstances, a post-termination hearing, which allows the accused officer an opportunity to present all relevant evidence he/she would have introduced at a pre-termination hearing to overturn the NOPD’s decision, satisfies the due process requirements of both the United States and Louisiana Constitutions.2 The only issue before us is whether these officers were denied due process for the NOPD’s failure to grant them a pre-termination hearing. In Cleveland Bd. of Education v. Loudermill, 470 U. S. 532, 542, 105 S. Ct. 1487, 1493, 84 L.Ed.2d 494 (1985), the United States Supreme Court stated: An essential principle of due process is that a deprivation of life, liberty, or property “be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed.2d 865 (1950). We have described “the root requirement” of the Due Process Clause as being “that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” FN7 Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971) (emphasis in original); see Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90 (1971). This principle requires “some kind of a hearing” prior to the discharge of an employee who has a constitutionally protected property interest in 2 An additional issue raised on appeal was whether the NOPD could rely upon Rule IX, §1.1 of the CSC Rules as setting forth prohibited conduct by classified employees. Although the termination letters sent to each of the officers did not cite an internal NOPD rule violated by them, the letters stated that the officers had not reported to duty, had abandoned their posts, etc., without permission and/or contact with their chain of command. Under the circumstances, we find the NOPD’s failure to cite a specific internal rule is without moment for such a violation is so obvious that a citation of authority is unnecessary. Thus, we find that Knight v. Department of Police, 619 So. 2d 1116, 1120 (La. App. 4 Cir.), writ denied, 625 So. 2d 1058 (La. 1993), is inapplicable to this case. 2 his employment. Perry v. Sindermann, 408 U.S. 593, 599, 92 S.Ct. 2694, 2698, 33 L.Ed.2d 570. As we pointed out last Term, this rule has been settled for some time now. Davis v. Scherer, 468 U.S. 183, 192, n. 10, 104 S.Ct. 3012, 3018, n. 10, 82 L.Ed.2d 139 (1984); id., at 200-203, 104 S.Ct. 3022-3024 (BRENNAN, J., concurring in part and dissenting in part). Even decisions finding no constitutional violation in termination procedures have relied on the existence of some pretermination opportunity to respond. For example, in Arnett six Justices found constitutional minima satisfied where the employee had access to the material upon which the charge was based and could respond orally and in writing and present rebuttal affidavits. See also Barry v. Barchi, 443 U.S. 55, 65, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979)(no due process violation where horse trainer whose license was suspended “was given more than one opportunity to present his side of the story”). [Emphasis added.] In footnote seven referenced above, the Court recognized an exception: There are, of course, some situations in which a postdeprivation [sic] hearing will satisfy due process requirements. See Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950); North American Cold Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (1908). [Emphasis added.] In Bell v. Dep’t of Health and Human Res., 483 So. 2d 945 (La.), cert. denied, 479 U. S. 827, 107 S. Ct. 105, 93 L. Ed. 2d 55 (1986), the Louisiana Supreme Court stated: The provisions of the state constitution involving the Civil Service, Article X, § 1 et seq., and the Rules of the Commission are designed to secure adequate protection to the public career employee from political discrimination. They embrace the merit system, and their intent is to preclude favoritism. The purpose of the Civil Service Rules is to guarantee the security and welfare of the public service. Sanders v. Department of Health & Human Resources, 388 So. 2d 768 (La. 1980) (emphasis added). With this in mind, it is clear that tenure or 3 classified civil service status is a property right within the meaning of Article I, § 2 of our constitution, a prerequisite to a due process challenge. Delta Bank & Trust Co. v. Lassiter, 383 So. 2d 330 (La. 1980). Under our constitution and the Civil Service Rules, an employee who has gained classified permanent civil service status has an entitlement to his position, since he has already received the position, and applicable law guarantees him continued employment, save for some exceptions (i.e. disciplinary sanctions for cause). Cleveland Bd. of Educ. v. Loudermill, supra; Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L. Ed.2d 15 (1974); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed. 2d 548 (1972). Having concluded that a classified permanent employee enjoys a property right in maintaining his status, it is axiomatic that his position may not be changed or abolished without due process of law. Cleveland Bd. of Educ., supra. The question becomes what process is due. The decisions of the United States Supreme Court, as well as the jurisprudence of this state, underscore the truism that " '[d]ue process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances." Mathews v. Eldrige, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). It is a flexible standard and calls for such procedural protections as the particular situation demands. Morrissey v. Brewer, 408 U.S. 471, 92S. Ct. 2593, 33 L.Ed.2d 484 (1972). It is particularly flexible in the area of administrative law. See Smith v. Division of Admin., 415 So. 2d 381 (La. App. 1st Cir. 1982); Hamilton v. La. Health & Human Resources Admin., 341 So. 2d 1190 (La. App. 1st Cir. 1976), writ refused, 344 So. 2d 4 (La. 1977). Where the power of the government or an agency is to be used against an individual there is a right to a fair procedure to determine the basis for, and the legality of, such action. Nowak, J., et al., Handbook on Constitutional Law, Ch. 15, p. 477 (1978). Id. at 949-50. [Underlined emphasis added.] In Fields v. State Through Dept. of Public Safety and Corrections, 98-0611, pp. 7-8 (La. 7/8/98), 714 So. 2d 1244, 1251, the Supreme Court clarified its position: 4 Generally, before a person is deprived of a protected interest, he must be afforded some kind of hearing. However, this court has often recognized there may be circumstances involving a valid governmental interest which justify postponing the hearing until after the event. In re Adoption of B.G.S., 556 So. 2d 545, 553 (La. 1990). A deprivation without opportunity for a prior hearing or other effective substitute safeguard has been allowed in "extraordinary" or "truly unusual" situations. Paillot v. Wooton, 559 So. 2d 758, 762 (La. 1990). "[E]mergency action may be proper pending a hearing when matters of public health and safety are involved." Id. See also Wilson v. City of New Orleans, 479 So. 2d 891 (La. 1985) and Bell v. Department of Health and Human Resources, 483 So. 2d 945, 951 (La.), cert. denied, 479 U. S. 827, 107 S. Ct. 105, 93 L. Ed. 2d 55 (1986) ("[W]e note that there seems to be an emerging concept that in some instances due process is fulfilled by a 'post deprivation' hearing. We believe that this view to procedural due process in certain situations is sound and is in support of our decision here."). Id. [Emphasis added.] It is unnecessary for this court to describe the emergency conditions existing in New Orleans during and after Hurricane Katrina. Thus, we note the obvious negative effect that an absence of discipline for these officers would have on those who remained at their posts under the most unusual and trying of circumstances. In Stevens v. Department of Police, 00-1682, p.8 (La. App. 4 Cir. 5/9/01), 789 So. 2d 622, 627, we stated: The public puts its trust in the police department as a guardian of its safety, and it is essential that the appointing authority be allowed to establish and enforce appropriate standards of conduct for its employees sworn to uphold that trust. Newman, supra [v. Department of Fire, 425 So.2d 753 (La.1983)]. Indeed, the Commission should give heightened regard to the appointing authorities that serve as special guardians of the public's safety and operate as quasi-military institutions where strict discipline is imperative. 5 We can hardly envision a scenario when enforcing appropriate standards of conduct was ever more important than in the aftermath of Hurricane Katrina. In addition, we find that the CSC’s rulings relying solely on the absence of a pretermination hearing when truly extraordinary circumstances present themselves would set a dangerous precedent on future disciplinary actions of the NOPD. For the foregoing reasons, we find that the CSC erred in reversing the orders of discipline against the plaintiffs/appellees on the sole basis that no pretermination hearings were afforded to them. We therefore vacate the decisions of the CSC in each of these consolidated cases. We remand the cases to the CSC for them to receive from the parties such additional evidence as necessary to appropriately resolve each of the cases and to render a judgment on the merits of each case. In that regard, the CSC is specifically instructed to permit each of the plaintiffs/appellees to introduce at the post-termination hearing such additional evidence as he or she might have provided to the appointing authority at a pre-termination hearing if same had been afforded. The right of each party to appeal a new subsequent judgment of the CSC following its ruling on the merits of each case is preserved. JUDGMENTS VACATED ; REMANDED WITH INSTRUCTIONS. 6

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