Advocate staff writer
March 12, 2013
The civil service board that reviews disciplinary actions against Baton Rouge police officers and firefighters has overturned or modified nearly two-thirds of the suspensions and reprimands in cases it has heard the past seven years, according to board records.
But the Municipal Fire and Police Civil Service Board, which plans to hear ousted Police Chief Dewayne White’s appeal in May, has been less likely to reinstate officers or firefighters who have been dismissed, the records show.
The civil service board has heard 13 termination appeals since 2006 and reinstated only four of those who were fired, all cases involving police officers. The board’s decisions in two of those four cases were later reversed by higher courts.
“I think we’ve had, at least in the time that I’ve been there, a pretty wide variance depending upon what the offense was and what the discipline was that was meted out,” said Julie Cherry, a board member who has served since 2008. “It’s a case-by-case basis.”
The relatively obscure civil service board has taken on new prominence as it prepares to hear one of the highest-profile cases in its history. The five-member panel has the authority to uphold Mayor-President Kip Holden’s decision to fire White, reverse it or reduce the discipline.
White’s hearing is expected to take up to three days — far longer than the average appeal — as both sides call witnesses and present their case. The losing party has the right to appeal to the 19th Judicial District Court.
The board’s mixed record on discipline, among other factors, makes White’s hearing difficult to handicap, attorneys familiar with the board said.
“I think it would be fair to say they’re kind of hard to predict,” said White’s attorney, Jill Craft, who has represented several law enforcement officers. “You don’t know until the board votes.”
The civil service board consists of five members who serve three-year terms. Firefighters and police officers elect one representative each from their own ranks. The Metro Council appoints an at-large member, recommended by the mayor-president, as well as one representative each nominated by LSU and Southern University.
One of the board’s fundamental duties is to provide “an avenue of relief to classified fire and police employees who feel that they have been subjected to corrective or disciplinary action without just cause,” said Robert S. Lawrence, the deputy state examiner.
If the board finds a disciplinary action was not made “in good faith for cause,” the statute calls for the immediate reinstatement of the officer. If the evidence is conclusive, state law says, the board “may” uphold the discipline.
The Louisiana Supreme Court issued an opinion in October interpreting the use of the word “may” in the statute to mean civil service boards have “the statutory authority to review and modify the discipline imposed, even when the appointing authority acts in good faith for cause.” Joel Pearce, the Shreveport attorney who argued the case, said police officers and firefighters are more likely to appeal discipline in light of the “monumental” ruling by the state’s high court.
“It effectively said that, even if the appointing authority in good faith and for cause fires a police officer, the civil service board has the unfettered right to substitute its judgment for that of the appointing authority,” Pearce said. “That’s huge.”
Justice Greg Guidry, in a concurring opinion, suggested the Legislature revisit the statute because of a possible drafting error.
Charlie Dirks, a local attorney who has practiced before civil service boards for years, said the ruling could have particular impact in Baton Rouge because the 1st Circuit Court of Appeal had taken “the opposite position” in the cases of two local police officers, one of them involving Cpl. Charles O’Malley.
O’Malley was fired in 2008 after he was accused of using excessive force and trying to shove his flashlight into the mouth of a handcuffed man. Finding the termination too harsh, the civil service board overturned O’Malley’s firing in lieu of a 90-day suspension without pay.
A state District Court judge later sided with former Police Chief Jeff LeDuff and upheld LeDuff’s original decision to fire O’Malley. An appellate court agreed, ruling the board lacked authority to modify discipline absent a finding of “bad faith” and had “merely substituted its judgment” for that of the chief.
Under the 2012 Louisiana Supreme Court opinion, O’Malley could have been able to keep his job.
In recent years, the civil service board in Baton Rouge has reversed discipline on purely procedural grounds. But the board has also reduced punishment it deemed too severe.
In other cases, the board has refused to reinstate officers, including a police employee fired for interfering with a traffic stop and misleading her superiors about her relationship with a convicted felon.
“There are certain discretions that the chief has to have, otherwise he has no discipline whatsoever,” said Harvey Schwartzberg, a former civil service board member. Schwartzberg said a disciplinary decision “had to be flagrantly wrong” and “prejudicial in every respect” for him to vote to change it.
The board’s chairman, Sgt. Bryan Taylor, said a pattern cannot be inferred from the board’s record because each case is different.
“What I have learned is that I do not make a determination until I actually get there on that day and hear both sides,” Taylor said, adding he thinks the board is the fairest the city has had in his nearly two decades with the Police Department. “I go there with an open mind and not prejudged.”
Dirks said earlier civil service boards did not seem as concerned as the current panel with the disciplinary process.
“They were more concerned with the substance of the allegation and the proof there was of the allegation,” Dirks said. “I think as the law has changed, and the Legislature has adopted more regulations, this board, over the last maybe six years, has taken a greater interest in that process.”
Holden has accused White of insubordination and violating several departmental policies. White denied those claims, but his appeal to the board focused in large part on the termination process.
Craft has claimed the former chief’s firing is null and void because city-parish officials disregarded the police officer’s bill of rights, in part by failing to inform him of a pending disciplinary investigation and denying him his right to an attorney during a meeting with William Daniel, Holden’s chief administrative officer.
Last year, the civil service board overturned a 20-day suspension given to a police sergeant disciplined for conduct unbecoming an officer in a domestic abuse case. In that case, the board found the Police Department’s investigation of Otis Nacoste improperly exceeded a 60-day limit outlined in the police officer’s bill of rights.