Clark v. Dep't of Police
| Decision Date | 10 October 2018 |
| Docket Number | NO. 2018-CA-0399,2018-CA-0399 |
| Citation | 257 So.3d 744 |
| Parties | Corey CLARK v. DEPARTMENT OF POLICE |
| Court | Court of Appeal of Louisiana — District of US |
Donovan A. Livaccari, LIVACCARI VILLARRUBIA LEMMON LLC, 101 W. Robert E. Lee Blvd., Suite 402, New Orleans, LA 70124-2472, COUNSEL FOR PLAINTIFF/APPELLANT
(Court composed of Judge Daniel L. Dysart, Judge Tiffany G. Chase, Judge Dale N. Atkins )
Corey Clark appeals the March 20, 2018 judgment of the Civil Service Commission denying his appeal of his termination from his permanent, classified employment with the New Orleans Police Department. For the reasons that follow, we affirm.
BACKGROUND:
Corey Clark ("Clark"), an officer with the New Orleans Police Department ("NOPD") was dispatched on July 6, 2013, to an address in New Orleans East to respond to a Signal 35 (simple battery), with a possible Signal 43 (simple rape).1 The initial report prepared by Clark indicated that he and Officer Brian Boyd2 spoke with the victim, who reported that an acquaintance had grabbed her by both arms, twisted them behind her back, grabbed her hair and slapped her face. She stated that the acquaintance had also slammed her onto a bed and pinned her down. These facts were identical to those used by Clark to obtain an arrest warrant for the suspect, who was eventually arrested and tried for forcible rape.
The omission from the report of a charge of rape came to light when the victim was assigned a victim witness coordinator for the reported simple battery charge, to whom the victim reported that she was also raped on July 6, 2013. The coordinator reported this information to the Sex Crimes Unit, which precipitated the investigation into whether Clark had neglected to report the rape.
At the criminal trial of the suspect, Clark explained that the victim had reported to him that she had been raped, but that she insisted on not reporting the rape, as she did not want to submit to a medical examination. Clark also admitted at trial that he was aware of the non-discretionary NOPD policy requiring officers to report all incidents of sexually-based offenses to the Sex Crimes Unit. In addition to not reporting the rape, Clark admitted that a former NOPD officer was present at the scene, but Clark determined that his presence was not germane to the incident, and also failed to include his name in the report.
Following the criminal trial, an article appeared in the local newspaper documenting that a NOPD officer had neglected to report a rape. A complaint was lodged against Clark by a ranking officer with the Public Integrity Bureau.
After an investigation and hearing, it was recommended that Clark be cited for violating the following rules/policies of the NOPD:3
A hearing was held on November 30, 2016. Clark testified that the call for service on July 6, 2013, was his first call for a sexual assault matter. He admitted that he should have notified the Sex Crimes Unit, and that he believed the allegation of rape was material to the incident; however, he stated that he "forgot" to include the allegation of rape because he was busy doing so many other things relative to the call and because the victim did not want to report the rape.
A disciplinary letter dated November 30, 2016, was signed by Chief Michael Harrison, accepting Deputy Chief Paul Noel's recommendation for discipline. The letter indicates that Clark was terminated for creating and submitting a simple battery report and intentionally withholding material information that a rape had occurred, a violation of Rule 6. Additionally, he was disciplined for violation of Rule 4, which occurred when he failed to properly notify the Sex Crimes Unit after the victim reported the rape.
On September 7, 2017, a hearing before a referee appointed by the Civil Service Commission ("CSC") was held. Clark testified that it was his understanding that if a victim did not want to report a crime, that there was no crime for reporting purposes. Clark stated that another motivation for not reporting the rape was the victim's desire for privacy. On March 20, 2018, the CSC denied Clark's appeal, and this appeal followed.
DISCUSSION:
A. Standard of Review
An appointing authority may discipline an employee with permanent status in the classified service for sufficient cause. La. Const. Art. X, § 8 (A). If an employee believes that an appointing authority issued discipline without sufficient cause, the employee may appeal to the CSC. Id. In an appeal before the CSC brought pursuant to Article X, § 8(A) of the Louisiana Constitution, the appointing authority has the burden of proving, by a preponderance of the evidence: 1) the occurrence of the complained of activity; and 2) that the conduct complained of impaired the efficiency of the public service in which the appointing authority is engaged. Fulton v. Dep't of Police , 17-0523, p. 4 (La.App. 4 Cir. 12/6/17), 234 So.3d 107, 110, writ denied , 18-0016 (La. 2/23/18), 237 So.3d 515 (quotations omitted). If the CSC determines that the appointing authority has met its initial burden and had sufficient cause to issue discipline, it must then determine if that discipline "was commensurate with the infraction." Abbott v. New Orleans Police Dep't, 14-0993, p. 7 (La.App. 4 Cir. 2/11/15), 165 So.3d 191, 197 (citing Walters v. Dep't of Police of City of New Orleans, 454 So.2d 106, 113 (1984) ).
The decision of the CSC "is subject to review on any question of law or fact upon appeal to this Court, and this Court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review." Cure v. Dep't of Police , 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094 (citing La. Const. Art. X, § 12 (B) ). "In...
To continue reading
Request your trial