212 So. 3d 627
La. Ct. App.2017Background
- Officer August Michel, off duty, drank heavily on Feb 22, 2012 on Bourbon Street while carrying his service weapon; his BAC tested at .208.
- An altercation at a bar led personnel to notify NOPD that Michel had a firearm on the premises; he was charged under La. R.S. 14:95.5 (possession of a firearm on alcoholic-beverage premises).
- Michel pleaded nolo contendere on Jan 17, 2013 to the firearms charge; fined and given a suspended jail term; NOPD suspended him without pay for 39 days and pursued administrative discipline.
- Deputy Superintendent recommended ten-day suspension for off-duty alcohol use and termination for bringing a service weapon into an alcohol venue; the Superintendent terminated Michel on May 29, 2013.
- The Civil Service Commission affirmed the termination; Michel appealed arguing (1) the administrative investigation exceeded the 60-day limit in La. R.S. 40:2531(B)(7) and (2) lack of cause/penalty disproportionate.
- The appellate court reviewed timeliness de novo (statutory interpretation) and factual findings for clear error, and affirmed the Commission based on criminal-investigation tolling and sufficient evidence that Michel’s conduct impaired departmental efficiency.
Issues
| Issue | Michel's Argument | NOPD/Commission's Argument | Held |
|---|---|---|---|
| Whether the administrative investigation violated the 60‑day limit of La. R.S. 40:2531(B)(7) | Investigation began with his Feb 22, 2012 suspension and exceeded 60 days; thus discipline is null | Criminal investigation tolls the 60‑day administrative period; administrative period began after criminal case concluded | Held: 60‑day limit tolled by criminal investigation; investigation was timely under O’Hern/McMasters |
| Whether appointing authority proved legal cause (conduct impaired public service) | Denied active wrongdoing; challenged sufficiency of proof that conduct impaired efficiency | Officer’s illegal conduct (firearm in alcohol outlet, high BAC) undermines departmental integrity and efficiency | Held: Appointing authority met burden; findings not clearly wrong |
| Whether the punishment was commensurate with the offenses | Termination excessive given circumstances | Termination for firearm violation and ten‑day suspension for drinking is not arbitrary given facts (BAC .208, knowingly carried weapon) | Held: Penalty not arbitrary or an abuse of discretion; affirmed |
| Standard of review for timeliness and factual findings | N/A (argued applicability) | Timeliness is a question of law (de novo); factual determinations reviewed for clear error | Held: Applied de novo to timeliness and clear‑error to facts; affirmed Commission |
Key Cases Cited
- O’Hern v. Dep’t of Police, 131 So.3d 29 (La. 2013) (criminal investigations toll the 60‑day administrative investigatory period)
- McMasters v. Dep’t of Police, 134 So.3d 1163 (La. 2014) (reiterating that the 60‑day limitation does not apply to investigations involving criminal activity)
- Regis v. Dep’t of Police, 121 So.3d 665 (La. 2013) (disciplinary action is permissible when officer conduct undermines departmental integrity)