Cittadino v. Department of Police

• Decision Date: 14 March 1990
• Docket Number: No. 89-CA-1242,89-CA-1242
• Citation: Cittadino v. Department of Police, 558 So.2d 1311 (La. App. 1990)
• Parties: Leander CITTADINO v. DEPARTMENT OF POLICE. 558 So.2d 1311
• Court: Court of Appeal of Louisiana

Page 1311

558 So.2d 1311

Leander CITTADINO v.DEPARTMENT OF POLICE.

No. 89-CA-1242.

558 So.2d 1311

Court of Appeal of Louisiana Fourth Circuit.

March 14, 1990.

Frank G. Desalvo, Joseph P. Raspanti, New Orleans, for plaintiff-appellant.

Okla Jones, II, City Atty., Wm. A. Aaron, Jr., Chief Deputy, Val K. Scheurich, III, Chief of Litigation, Keith A. Doley, Asst. City Atty., George Blair, Deputy City Atty., New Orleans, for defendant-appellee.

Before BARRY, KLEES and WILLIAMS, JJ.

BARRY, Judge.

Leander Cittadino appeals a Civil Service Commission ruling which upheld his 120 day suspension from the New Orleans Police Department.

An administrative investigative report documented Cittadino's alleged violations of Rule 2, Paragraph 1, relative to Adherence to Law;Rule 4, Paragraph 4, relative to Neglect of Duty; and Rule 2, Paragraph 3, relative to Truthfulness.Sgt. Mason Spong of Internal Affairs conducted the investigation stemming from a taped conversation allegedly between Cittadino, Rocky Blimier and Jose concerning poker machines in February, 1987.He interviewed Cittadino on June 21, 1988 and the statement was transcribed and signed June 23, 1988.

According to his transcribed statement (introduced at the subsequent Commission hearing) made to Sgt. Spong and Sgt. Eddleman (Eddleman asked no questions), Cittadino admitted to the sergeants that he knew a person named Rocky who owned Compak Grocery on St. Louis and Bourbon although he was not sure his last name was Blimier.He did not know Jose.Cittadino admitted talking to Rocky about placing video machines in an upstairs barroom.Cittadino stated that he bought legal video machines seven or eight years ago.He said poker machines (of which he knew little) were legal if they did not have a knock-off button.Although he admitted having a video machine business on the side, he did not have an outside employment form (required by the department) because it was a hobby.Cittadino denied offering poker machines to Rocky but claimed he discussed only video machines.

At that point in the middle of the interview Sgt. Spong played the tape of the conversation and asked Cittadino if he recognized his voice.Cittadino answered affirmatively and stated that the other person sounded like Rocky.He did not recognize the third voice on the tape.When asked by Sgt. Spong where the tape had been made, he stated that it was probably at Popeyes on Canal Street around February, 1987.

When Sgt. Spong asked whether he offered to provide poker machines to Rocky at the end of the tape, Cittadino said he did not know how to obtain such machines and did not know why Rocky felt he could.He said he was explaining to Rocky about poker machines.He also disclaimed having a friend who could provide such machines when he was asked by Sgt. Spong to provide the friend's name.When Sgt. Spong asked whether his taped declarations to Rocky "about being able to provide poker machines" were true, Cittadino said: "It's moreorless [sic] a conversation with Rocky."When the sergeant questioned Cittadino as to why he had not terminated the conversation when it became involved in an illegal matter, he answered that he did not know.

Cittadino was charged in a departmental disciplinary letter with violating the rules and/or procedures in the following instances:

In February, 1987, you met with two subjects, known as Rocky and Jose, at Popeye's [sic] Chicken on Canal St. at Exchange Alley.During your conversation with these two men you attempted to assist them in obtaining Poker Video Machines to be used for illegal purposes.

You were untruthful in the statement you gave to Sgt. Spong on June 21, 1988.In that statement you denied having had a meeting or the conversation in question, until you were allowed to review a tape recording of that conversation.You then admitted that it was your voice on the recording.

The Superintendent found that Cittadino offered nothing at the departmental disciplinary hearing to mitigate or justify his conduct and concurred in the disciplinary committee's recommendation for a 120 day suspension.

Cittadino appealed to the Civil Service Commission.At the hearing before the hearing examiner Cittadino testified on cross-examination that he knew Rocky Blimier who had a grocery store on St. Louis and Bourbon Streets.He denied any business dealings with Rocky.He said his wife owned video machines and wanted to place them in Rocky's store.Cittadino denied that he agreed to provide Rocky with poker machines.

Cittadino testified that he gave a statement to Sgt. Mason Spong wherein he said he never made an agreement with Rocky.Cittadino said Sgt. Spong played a taped conversation allegedly between Rocky, himself, and a man called Jose.Cittadino admitted that after hearing the tape he told Sgt. Spong that "[i]t could have been me."At the Commission hearing he stated that it could have been him or somebody else.Cittadino claimed he told Sgt. Spong that he did not know if his voice was on the tape.Counsel for N.O.P.D. played the tape (allegedly between Cittadino while off duty, Rocky, and Jose in February, 1987) over Cittadino's objection.The Commissioner reserved his ruling as to admissibility of the tape.

Counsel for N.O.P.D. asked Cittadino if it was his voice on the tape which said: "See, I don't want to lose my job, go to jail or lose my retirement".Cittadino responded: "I have no idea.I talked to Rocky Blimier on several occasions in different places...."The tape was played again and Cittadino stated that he could not recognize the voice.

Counsel for N.O.P.D. produced Cittadino's transcribed statement to Sgt. Spong and Cittadino claimed that he did not recall his answers to the sergeant, but admitted the statement bore his initials.He conceded that in the statement he responded affirmatively when asked whether he recognized his voice on the tape and identified the other person as Rocky.

At the hearing Cittadino was asked whether during his conversation with Rocky he offered to provide gambling machines and his counsel's objection was sustained because the tape was not in evidence and Cittadino had denied his voice was on the tape.The hearing officer stated that the tape would not be admitted except as a proffer unless Rocky testified.Cittadino did not remember whether he talked to Rocky about pinball or poker machines.He said that he discussed working a detail at Rocky's store, but never talked to Rocky at Popeyes on Canal Street.

Cittadino was asked to reconcile his admission to Sgt. Spong that it was his voice on the tape and his denial at the hearing.He stated that Sgt. Spong insinuated that it was his voice and he"just went along with him."

On direct examination Cittadino testified that at the administrative hearing Lt. Gagnard explained the types of illegal machines and that was his first knowledge about the matter.Cittadino claimed his relationship with Rocky only involved his attempt to work a detail at Rocky's store.He said he did not remember trying to sell Rocky poker machines and disclaimed knowing a man named Jose.Although Cittadino disclaimed owning poker machines, on re-cross he admitted that his wife owned pinball machines.Cittadino stated he had conversations with Rocky and one might have occurred in February, 1987.

Sgt. Spong of N.O.P.D.Internal Affairs (at the time of the incident) testified that he taped an interview with Cittadino on June 21, 1988 after informing him of the Police Officer's Bill of Rights.Cittadino told Sgt. Spong that he did not recall a conversation with Blimier about poker or pinball machines.Sgt. Spong said after he played the tape, Cittadino admitted it was his voice and Rocky's voice.When the sergeant asked whether their conversation occurred at Popeyes on Canal Street, Cittadino thought that was probably the location.At the hearing Sgt. Spong identified the third voice on the...