MICHAEL SAUTER C/W MICHAEL PFEIFFER Vs. DEPARTMENT OF POLICE

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MICHAEL SAUTER C/W MICHAEL PFEIFFER * NO. 2006-CA-1646 * COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA VERSUS DEPARTMENT OF POLICE ******* APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 6771 & 6766 ****** Per Curiam ****** (Court composed of Judge Patricia Rivet Murray, Judge Terri F. Love, Judge Roland L. Belsome) Frank G. DeSalvo DESALVO DESALVO & BLACKBURN, APLC 530 Natchez Street Suite 305 New Orleans, LA 70130 COUNSEL FOR PLAINTIFF/APPELLEE Joseph V. DiRosa, Jr. Chief Deputy City Attorney Penya Moses-Fields City Attorney Victor L. Papai, Jr. Assistant City Attorney April 25, 2007 1300 Perdido Street City Hall - Room 5E03 New Orleans, LA 70112 COUNSEL FOR DEFENDANT/APPELLANT VACATED AND REMANDED The Civil Service Commission’s decision is vacated and we remand in accordance with Marks v. New Orleans Police Dep’t, 06-0575 (La. 2006), 943 So. 2d 1028. Regarding the interpretation of La. R.S. 40:2531B(7) as directory or mandatory, the Louisiana Supreme Court found the fact that the “legislature did not include a penalty in the statute for non-compliance with the sixty-day period to be more significant.” Id., at p. 10, 943 So. 2d at 1035. The Supreme Court reasoned that the “statute does not provide, nor suggest, that the remedy for non-compliance with the sixty-day period is dismissal of the disciplinary action.” Id. Marks held that “in the absence of prejudice,” the judiciary cannot supply a penalty if the “statute does not establish a penalty for noncompliance.” Id., p. 12, 943 So. 2d at 1036. “A failure to comply with the sixty-day time period may impact whether discipline should be imposed or the type of discipline imposed if prejudice to the officer is demonstrated due to the delay.” Id. Therefore, we interpret Marks as allowing the accused police officer the opportunity to allege and present evidence to demonstrate whether he was prejudiced by the delay. VACATED AND REMANDED

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