O'Hern v. Department of Police
131 So. 3d 29
La.2013Background
- On Dec. 12, 2009 Officer Patrick O’Hern (NOPD) drove to a parking garage, ingested alcohol and clonazepam, tasered himself, and fired his service weapon multiple times; he later acknowledged a suicide attempt and had BAC .105%.
- Sgt. Lawrence Jones opened a formal DI-1 investigation the same day and initiated a criminal inquiry; O’Hern refused a criminal statement, was arrested, and pled nolo contendere to illegal use of weapons.
- The NOPD began the administrative investigation on March 5, 2010 and compelled an administrative statement on March 11; on April 27, 2010 Sgt. Jones notified O’Hern that the investigation was complete and sustained charges; O’Hern was terminated.
- O’Hern appealed to the Civil Service Commission (CSC), which upheld the termination and found the preliminary probe was a criminal investigation; the Fourth Circuit initially affirmed but on rehearing reversed, finding the administrative investigation exceeded the 60-day limit under La. R.S. 40:2531(B)(7).
- The NOPD sought review, arguing the 60-day administrative time limit does not apply while a criminal investigation is pending; the Supreme Court reversed the court of appeal and reinstated the CSC decision.
Issues
| Issue | O'Hern's Argument | NOPD's Argument | Held |
|---|---|---|---|
| Whether La. R.S. 40:2531(B)(7)’s 60-day rule was violated | The administrative investigation began with the DI-1 on Dec. 12, 2009, so NOPD exceeded 60 days making termination unlawful | The DI-1 marked a criminal investigation; the administrative investigation did not begin until March 5, 2010, so the 60-day period was tolled by the criminal probe | The court held the initial inquiry was a criminal investigation; the 60-day administrative period was tolled and the administrative investigation was timely completed |
| Whether the criminal-investigation exception in §2531(B)(7) remains applicable after 2007 amendments | The 2007 amendments and added §2531(C) mean protections apply to officers "under investigation" and the 60-day rule should govern | The criminal-investigation exception still applies; the 2007 changes did not eliminate the exception for criminal probes | The court held the 2007 amendments did not alter the criminal-investigation exception; the exception applies |
| Whether the CSC’s factual finding that the preliminary probe was criminal is subject to reversal | O'Hern argued the CSC erred in characterizing the investigation and in its factual conclusions | NOPD argued CSC’s factual determination that a criminal investigation occurred is supported by evidence (request for criminal statement, arrest, charge) | The court found no manifest error in the CSC’s factual findings and deferred to the CSC |
| Whether precedent relied on by the court of appeal (including Robinson and Cornelius) controlled this case | O'Hern relied on decisions interpreting administrative start dates and the 60-day rule | NOPD argued those cases are distinguishable or not controlling; some precedents were inapposite because this matter involved a formal DI-1 and a criminal inquiry | The court found the court of appeal misapplied those cases and reaffirmed that criminal investigations toll the 60-day administrative limit |
Key Cases Cited
- Wyatt v. Harahan Mun. Fire & Police Civil Serv. Bd., 935 So.2d 849 (La. App. 5th Cir. 2006) (preliminary criminal inquiry tolled 60‑day administrative period)
- Bannister v. Dept. of Streets, 666 So.2d 641 (La. 1996) (employer responsibility to discipline employees who impair public service efficiency)
- Newman v. Department of Fire, 425 So.2d 753 (La. 1983) (disciplinary authority and standards for public employees)
- Cornelius v. Department of Police, 41 So.3d 617 (La. App. 4th Cir. 2010) (distinguishable factual posture concerning informal DI-3 vs formal DI-1 investigations)
- Franklin v. Department of Police, 69 So.3d 1157 (La. 2011) (writ denial affirming that criminal investigation delays toll the administrative 60‑day period)
- Robinson v. Department of Police, 106 So.3d 1272 (La. App. 4th Cir. 2013) (writ denial discussed by court of appeal but a denial of writ has no precedential value)