Acting in a precedent-setting case that the city predicts will open "floodgates of litigation" for its 8,000 employees, the New Orleans Civil Service Commission last week deferred a decision on a former police internal affairs investigator's appeal of a letter of reprimand by former Police Chief Richard Pennington.
The commission has long refused to consider employee appeals of letters of reprimand -- until a recent decision by the state Fourth Circuit Court of Appeal, according to court records and city officials. "The Fourth Circuit has expanded the scope of the Civil Service Commission with respect to disciplinary appeals," says city personnel director J. Michael Doyle.
However, the appellate decision is silent on whether the commission must hear appeals of reprimands that pre-date the Fourth Circuit's Dec. 19 ruling in the case of Joseph Hebert vs. New Orleans Police Department, Doyle says, adding that he interprets the court's ruling within the "four corners" of the Hebert case. That would mean the ruling applies in cases of appeals in which letters of reprimand become a permanent part of an employee's record as opposed to a traditional, temporary "counseling tool."
In its decision, the Fourth Circuit ruled: "We hold that, due to the present permanent nature of a letter of recommend, a reprimand may be challenged when the underlying charges and evidence relative to those charges are fresh."
The case centers on former Public Integrity Division (PID) Sgt. Joseph Hebert, who is appealing a Dec. 6, 2000, letter of reprimand and a 30-day suspension of his off-duty security "detail" privileges meted out by Pennington for Hebert's alleged administrative violations of NOPD rules, such as failing to report detail assignments to supervisors.
Hebert, who retired in September, alleges that the chief's disciplinary actions carried a number of consequences, including his transfer out of PID, and a concomitant 10 percent reduction in pay, which adversely affected his police pension benefits. The Civil Service Commission last year dismissed Hebert's appeal, ruling that both types of disciplinary actions -- the letter of reprimand and the suspension of detail privileges -- were outside the commission's jurisdiction.
Hebert appealed the commission ruling to the Fourth Circuit, which returned a split decision. The appellate court agreed the suspension of police detail privileges is "beyond" the commission's constitutional jurisdiction, but ordered the commission to hear Hebert's appeal of his letter of reprimand.
In its ruling, the Fourth Circuit noted that NOPD did not dispute Hebert's arguments that the previous "temporary nature" of written reprimands was "abandoned" after Pennington took office in 1994, and the letters became permanent on a police officer's record. Hebert added the reprimands are often used as "first offenses" by NOPD when considering subsequent disciplinary, promotions and transfers of job assignments. Therefore, such letters may be appealed. The Fourth Circuit agreed.
In the city's written appeal to the Louisiana Supreme Court, Deputy City Attorney Joseph V. DiRosa Jr. argued that "the expansion of employee appellate rights to include letters of reprimand will place an unnecessary burden on the civil service system's appellate process." However, the Supreme Court refused to hear the case, leaving the Civil Service Commission with new powers it did not seek and does not desire, records show. Writing for a three-court panel of the Fourth Circuit, Judge Max Tobias opined: "The risk that our [decision] is likely to increase the number of appeals taken to the Commission is not material to this Court."
Hebert's case was scheduled for trial at Civil Service last week, but an assistant city attorney asked for a delay, saying the city has been unable to locate several key witnesses -- all cops who are now retired. Hebert attorney Adam Lambert asked the commission to rule in favor of his client: "We're not talking about the charge of the century; we're talking about a letter of reprimand." Commission chair William Forrester Jr. said he would issue a ruling at a later date.
Hebert and his wife have also filed suit in Civil District Court over the disciplinary actions against him. Named as defendants are Pennington, Assistant Superintendent Ronal Serpas and former PID Commander Maj. James Treadaway. In his suit, Hebert says Treadaway told him that the alleged reason for his transfer to the districts was, "We cannot have a man with a sustained complaint in the Public Integrity Division." Hebert further alleges that there were "several employees" working at PID with sustained complaints against them, including at least one employee with a sustained sexual harassment charge, who replaced Hebert. Hebert's allegations were denied in responses filed by attorneys for the city.