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NOT DESIGNATED FOR PUBLICATION

PAUL SCHUBERT VERSUS DEPARTMENT OF POLICE

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NO. 2007-CA-0170 COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 7212 ****** JAMES F. MCKAY III JUDGE ****** (Court composed of Judge James F. McKay III, Judge Michael E. Kirby, Judge Terri F. Love)

FRANK G. DESALVO DESALVO DESALVO & BLACKBURN, APLC New Orleans, Louisiana 70130 Counsel for Plaintiff/Appellee PENYA MOSES-FIELDS CITY ATTORNEY FOR ORLEANS PARISH JOSEPH V. DIROSA, JR. CHIEF DEPUTY CITY ATTORNEY FOR ORLEANS PARISH VICTOR L. PAPAI, JR. ASSISTANT CITY ATTORNEY FOR ORLEANS PARISH HEATHER M. VALLIANT ASSISTANT CITY ATTORNEY FOR ORLEANS PARISH New Orleans, Louisiana 70112 Counsel for Defendant/Appellant

AFFIRMED

The New Orleans Police Department ("NOPD") through the City of New Orleans ("City") appeals the ruling of the New Orleans Civil Service Commission ("Commission") which overturned the Appointing Authority's prior ruling imposing on NOPD Sergeant Paul Schubert an emergency thirty (30) day suspension and an ultimate dismissal from the NOPD. Sergeant Schubert is a twenty-eight (28) year veteran of the NOPD. It is undisputed that on August 29, 2005, he failed to report to duty during Emergency Activation and remained absent from his post until September 24, 2005. We take notice that this is a Hurricane Katrina related matter. It is the events that have transpired and mitigating circumstances that are the focus of this appeal. Emergency Activation status, according to the NOPD, means that all essential personnel are required to report and remain on duty until relieved. The NOPD also explains that police officers were instructed to secure their families and to report to duty. Thereafter, only the Superintendent of Police or one of his assistant chiefs could give an officer permission to be absent.

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Sergeant Schubert, the sole caregiver of his disabled wife, avers that after gaining authorization from his supervisor he evacuated his disabled wife with the plan to leave her in the care of a family member in Conroe, Texas. His wife Madeline O'Neill Schubert is a retired civil employee of the NOPD and receives a disability pension from the City. They planned to evacuate to Mrs. Schubert's Aunt's home as they had done in the past. However, their plan was thwarted because of the arrival of other evacuees including two hospice patients and numerous animals. Due to Mrs. Schubert's extreme susceptibility to infection other arraignments had to be made. They were then forced to stay in a Texas hotel room until the situation in New Orleans improved and her doctor could be located. When the doctor was located and they discovered that the electricity had returned to their West Bank home he and his wife returned to New Orleans. He immediately returned to his duties with the NOPD. Sergeant Schubert asserts that prior to evacuating with his disabled wife he communicated this problem to Lieutenant Brink, his platoon commander/immediate supervisor and received permission to take care of his wife and return to work as soon as he could. Lieutenant Brink, testified that he told Sergeant Schubert to "Take care of your wife and get to work as soon as you can" and that the District Commander was satisfied with this communication. Lieutenant Brink testified that Sergeant Schubert's situation met the criteria for granting an emergency furlough. As Sergeant Schubert returned to work when his

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wife's doctor returned to New Orleans, he was absent from his post for twenty-four 24) days. Upon obtaining this information concerning Sergeant Schubert, Superintendent Riley (formerly Deputy Chief Riley, at the time Katrina struck) ordered PIB to initiate a DI-1 to be issued against the District Commander, as he approved Sergeant Schubert's "Exemption" from reporting to duty. Superintendent Riley rejected the recommendation of the Disciplinary Panel because Sergeant Schubert was absent for more than fourteen (14) days. The Superintendent found the appellant was absent without permission, in his view, because Lieutenant Brink lacked the authority to give permission to the leave. The Appointing Authority terminated Sergeant Schubert's employment after determining that he violated a neglect of duty regulation, specifically failure to report to duty without authorization. Sergeant Schubert appealed the ruling to the Commission. The hearing was held on April 20, 2006. The Commission found that the Appointing Authority failed to establish by a preponderance of evidence that it disciplined the Appellant for cause and that the Sergeant Schubert was in an impossible position and had no choice but to remain with his disabled wife. The Commission also found that he had received authorization from his immediate supervisor to remain away from his duties while his wife required assistance. As the Commission noted, "The Appellant relied upon the instructions he received from his supervisor, and the Appointing Authority cannot penalize him for his reliance." The Commission

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granted the appeal and directed the Appointing Authority to reinstate the appellant with all back pay and emoluments of employment. It is from this ruling that the City appeals. STANDARD OF REVIEW An appellate court reviews findings of fact made by the Civil Service Commission according to the manifest error standard; however, a decision of the Commission should not be overturned unless it is arbitrary, capricious, or an abuse of discretion. Maurice v. Department of Police, 94-2368, p. 2 (La.App. 4 Cir. 6/7/95), 657 So.2d 501, 502 (citing Blappert v. Department of Police, 94-1284 (La.App. 4 Cir. 12/15/94), 647 So.2d 1339, 1342-1343). ASSIGNMENTS OF ERROR There are two issues for this Court to review on appeal. 1.) Whether the Civil Service Commission erred in finding that the Appointing Authority had failed to establish that it had disciplined the Appellant for cause. 2.) Whether the Civil Service Commission erred in substituting its own judgment for that of the Appointing Authority where cause exists and where the discipline imposed here is commensurate with the discipline imposed against all other officers similarly situated. The Louisiana Constitution of 1974 established the City Civil Service, which includes paid firemen and municipal policemen. La. Const art. X, Sec. 1(B); George v. Department of Fire, 93-2421, (La.App. 4 Cir. 5/17/94), 637 So.2d 1097, 1101;Walters v. Department of Police of New Orleans, 454 So.2d 106 (La.1984).

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The burden of proof on appeal to the Civil Service Commission from a disciplinary action as to the factual basis for the disciplinary action is on the appointing authority, which in the instant case is the NOPD. Walters v. Department of Police of City of New Orleans, 454 So.2d 106 (La.1984); Goins v. Department of Police, 570 So.2d 93 (La.App. 4 Cir.1990). The Civil Service Commission has the duty to decide independently from the facts presented whether the NOPD had good and lawful cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the dereliction. Walters, supra; George, supra. This is significant in the instant case, because the Civil Service Commission reversed the decision of the Appointing Authority finding that it failed to establish by a preponderance of evidence that it disciplined the Sergeant for cause. Legal cause exists whenever the employee's conduct impairs the efficiency of the public service in which the employee is engaged. Cittadino v. Department of Police, 558 So.2d 1311, 1315 (La.App. 4 Cir.1990). The appointing authority has the burden of proving by a preponderance of the evidence the occurrence of the complained of activity and that the conduct complained of impaired the efficiency of the public service. Id.; George, supra. While these facts must be clearly established, they need not be established beyond a reasonable doubt. Id. This Court applies the clearly wrong/manifest error standard of review to the commission's factual findings. George v. Department of Police, 637 So.2d at 1101. When there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appeal. Id.; Barquet v. Department of

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Welfare, 620 So.2d 501, 505 (La.App. 4 Cir.1993). The Commission's findings of fact cannot be manifestly erroneous where there are two permissible views of the evidence. Id.; George, supra. In reviewing a Commission conclusion as to the existence or absence of cause for dismissal, the appellate court should not reverse the Commission's decision unless it is arbitrary, capricious, or is an abuse of discretion. Id.; Walters v. Department of Police of City of New Orleans, 454 So.2d at 112 (La.1984) The City argues that the Civil Service Commission erred in finding that the NOPD failed to prove cause for disciplining Sergeant Schubert. We disagree. At the heart of the City's argument it asserts that numerous other officers within the NOPD were similarly disciplined for Katrina-related absences that lasted longer than fourteen (14) days. At the Commission hearing Superintendent Riley testified that despite the mitigating factors present in Sergeant Schubert's case, he was concerned with "consistency and fairness across the board." As such, he believed that the same discipline should be imposed here as was in other cases. In fact the Superintendent testified that he went against the recommendations of Chief Nichols and Chief Defillo who felt that the neglect of duty under Rule IX should not be sustained against Sergeant Schubert. The Superintendent also testified that he felt that the Lieutenant Brink lacked the authority to grant leave to Sergeant Schubert to take care of his disabled wife. Essentially, the City never argued that the actions of the Sergeant impeded the efficiency of public service. The primary focus is upon consistency in

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disciplinary action without consideration of the mitigating circumstances. As the Commission noted the Sergeant "found himself in an impossible situation where he clearly had no choice but to remain with his wife, and away from his duties. More, importantly, the Appellant received authorization from his immediate supervisor to remain away from his duties while his wife required assistance. The Appellant relied upon the instructions he received from his supervisor, and the Appointing Authority cannot penalize him for his reliance." The record clearly establishes that Sergeant Schubert asked and received permission to be placed on emergency furlough. The fact that the Superintendent did not recognize the strength of the mitigating circumstances and the authorization that the Sergeant relied upon is of no real consequence. In fact by his testimony the Superintendent admits that the final discretion concerning disciplinary action in such matters is solely in his control. The Superintendent testimony is as follows:. There were a number of cases that I disagreed with through that process of almost 160, 170 hearings. This was not the only case that I overruled. There were cases that I overruled where I made the penalties greater. There was a lieutenant who I recommended a termination on. There were several cases where I lessened the disciplinary action because I thought it was too severe based on the decision. I'm the one who has to answer for it and the final decision is mine. So I would, in fact, review them and make those decisions. One of the principal purposes of the Civil Service Commission is to protect Civil Servants' rights and to assure that there is a sufficient cause for the disciplinary penalties imposed. It is clear from the record before this Court that the City has failed to meet its burden of proof to establish legal cause to pursue disciplinary action against Sergeant Schubert. To the contrary, the City's very

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argument supports the position of the Sergeant. There can be no doubt that the Sergeant's situation was indeed dire and more importantly he acted under the belief that he had authorization from his immediate supervisor to be absent from his duties with the NOPD in the immediate aftermath of Hurricane Katrina. Given the record before us we cannot conclude that the Commission was arbitrary and capricious in reversing the decision of the Appointing Authority and reinstating the Sergeant to his former position. Turning to the second issue, the NOPD argues that the Civil Service Commission erred by substituting its own judgment for that of the Appointing Authority in failing to find the discipline imposed was commensurate with that of other police officers similarly situated. We disagree for the reasons stated above. CONCLUSION For the above and forgoing reasons we affirm the ruling of the Civil Service Commission and affirm it judgment.

AFFIRMED

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