Fallon v. New Orleans Police Dept.

• Citation: 238 La. 531,115 So.2d 844
• Decision Date: 09 November 1959
• Docket Number: 44510,Nos. 43926,s. 43926
• Parties: Edward H. FALLON v. NEW ORLEANS POLICE DEPARTMENT.
• Court: Supreme Court of Louisiana

Page 844

115 So.2d 844

238 La. 531

Edward H. FALLON v. NEW ORLEANS POLICE DEPARTMENT.

Nos. 43926, 44510.

Supreme Court of Louisiana.

Nov. 9, 1959.

Rehearing Denied Dec. 14, 1959.

Robert J. Zibilich, New Orleans, for appellant.

Alvin J. Liska, City Atty., Beuker F. Amann, Asst. City Atty., New Orleans, for defendant-appellee.

HAMLIN, Justice.

In these consolidated cases, Edward H. Fallon, Sr., a former captain in the Department of Police, City of New Orleans, appeals from:

1. A ruling of the City of New Orleans Civil Service Commission affirming his dismissal by Provosty A. Dayries, Superintendent of Police, Department of Police, City of New Orleans.

2. A per curiam ruling of the City of New Orleans Civil Service Commission denying his request for reinstatement to his former position with the Department of Police.

On June 24, 1957, the Superintendent of Police addressed the following letter of dismissal¹ to Captain Edward H. Fallon, Sr.:

'Department of Police

'2700 Tulane Avenue

'New Orleans, La.

'June 24, 1957

'Captain Edward H. Fallon, Sr.

1825 St. Roch Avenue

New Orleans, Louisiana

'Dear Captain Fallon:

'On June 21, 1957, you refused to answer questions propounded to you by the Orleans Parish Grand Jury pertaining to the conduct of yourself and other members of this Department relating to your official duties.

'On June 24, 1957, you were called to the Police Bureau of Investigation in connection with an official investigation pertaining to public bribery involving members of the New Orleans Police Department. You stated at that time that you did not want any questions to be asked of you by Agents of the Police Bureau of Investigation, and that if any questions were asked you would not answer the questions.

'It is my finding that your conduct as stated above constitutes Conduct Unbecoming an Officer, in that you refused to cooperate in duly constituted investigations and reflected discredit upon yourself and this Department. In view of the above, I hereby dismiss you from the New Orleans Police Department, effective immediately. This is a final action.

'Very truly yours,

Provosty A. Dayries

Provosty A. Dayries

Superintendent of Police'

Captain Fallon's appeal lodged with the Civil Service Commission was based on three points, namely, (a) the notice of dismissal was not delivered timely; (b) the Civil Service Law, Article XIV, Sec. 15(P)(1), Louisiana Constitution of 1921 is unconstitutional; and (c) the Fifth Amendment shielded him from answering the interrogations in question.

The Civil Service Commission made the following findings of fact:

'(1) Edward H. Fallon, Sr., Captain in the New Orleans Police Department, refused to answer questions propounded to him by the Orleans Parish Grand Jury and the Police Bureau of Investigation pertaining to his own conduct as well as conduct of other members of the Department; and to the existence of a system of public bribery involving members of the Police Department.

'(2) Appellant gave no reason whatsoever for his actions in the premises, and failed to take the witness stand in the trial before the Commission to explain his action or contradict any of the charges leveled against him.'

The Conclusions of Law of the Civil Service Commission recite:

'(1) The conduct of the appellant in refusing without adequate cause to answer the questions propounded to him before the Orleans Parish Grand Jury and the Police Bureau of Investigation of the New Orleans Police Department, constituted conduct unbecoming an officer of the most flagrant type.

'(2) The Superintendent of Police had ample cause to take the disciplinary action in dismissing appellant from the New Orleans Police Department.

'(3) The plea of unconstitutionality of Section 15(P)(1) of Article XIV of the Louisiana Constitution is without merit.

'(4) The appeal is completely baseless either in law or fact and is therefore dismissed.'

What we shall designate as Appeal No. 1 was filed, on January 22, 1958, to the above findings of fact and conclusions of law.

On September 23, 1958 (while appeal No. 1 was pending before this Court), counsel for Captain Fallon addressed a letter to the Superintendent of Police, in which he requested that Captain Edward H. Fallon be reinstated immediately. He stated that if Captain Fallon were not reinstated discrimination would result, inasmuch as Warren A. Labiche had been reinstated after having been dismissed under the same or very similar circumstances. The Superintendent of Police and William W. Shaw, Director of Personnel, City of New Orleans, referred the matter to the Civil Service Commission. In rejecting the demand for reinstatement, the Civil Service Commission expressed its reasons in the following per curiam:

'In re: Edward H. Fallon, Sr.

'Edward H. Fallon, Sr., through counsel, has addressed a letter to the Civil Service Department under date of September 23, 1958, requesting that he be reinstated to his position with the New Orleans Police Department, for the reason that the Appointing Authority--in this case the Superintendent of Police--in refusing to recommend reinstatement of Edward H. Fallon, Sr., has discriminated against him.

'It is to be observed that an appeal of the Commission's decision affirming the Appointing Authority's dismissal, is now pending before the Supreme Court of Louisiana.

'Under the provisions of Rule VI, 4.6, any request made to this Commission for permission to reinstate, should be made within one year. The record discloses that more than one year has expired since the dismissal. Accordingly, under the rules of the Commission, even if the Appointing Authority desired to recommend reinstatement, the Commission could not entertain such a request.

'The request by Edward H. Fallon, Sr. is accordingly denied. The Commission sees no need for a hearing in the premises.'

To the above ruling, Captain Fallon filed what we shall call Appeal No. 2. This appeal is consolidated with Appeal No. 1, supra.

Certain specifications of error, which contain the same arguments advanced by Captain Fallon before the Civil Service Commission, are set forth in Appeal No. 1.²

We find no merit in appellant's contention that he was not timely notified of his dismissal. The rules of the Civil Service Commission require that an employee and the director of personnel be advised of the dismissal of an employee immediately. Emphasis is placed upon the meaning of the word 'Immediately,' but herein we are not called upon the discuss its definition. The letter of the Director of Personnel was stamped June 28, 1957, and there is no proof in the record that it was not received before that date; there is no proof as to when appellant received his letter of dismissal,³ although it is contended that he received it on July 2, 1957. Under such circumstances, we conclude that the following statement of the Civil Service Commission is correct:

'Appellant's counsel, in his brief, contends that the letter of June 24th did not reach him until July 2nd, and the Director of Personnel until June 28th, and as such did not constitute immediately notice within Rule IX, Section 1.2 of the Rules of this Commission.

'There is no proof in the record to show time of delivery to appellant. Hence, this defense fails.'

Section 15(P)(1) of Article XIV, Louisiana Constitution of 1921, which appellant contends is unconstitutional, recites:

'If any member of the State or City Commissions or any officer or employee in the State or City Civil Service shall willfully refuse or fail to appear before any Civil Service Commission, court, or judge, any legislative committee, or any officer, board or body authorized to conduct any hearing or inquiry, or having appeared shall refuse to testify or answer any question relating to the affairs or government of the State or city, or the conduct of any State or city officer or employee on the ground that his testimony or answers would tend to incriminate him, or shall refuse to waive immunity from prosecution on account of any matter about which he may be asked to testify at any such hearing or inquiry, he shall forfeit his office or position and shall not be eligible thereafter for appointment to any position in the State or City Service for a period of ten years.'

It is appellant's contention that the section, supra, is unconstitutional, null, and void, because it is violative of and in contravention of Amendment XIV, Sec. 1, of the United States Constitution, wherein it is provided that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law. This contention is levelled principally at the fact that an employee of a municipality containing a population of less than 250,000 is not governed by Section 15(P)(1) of Article XIV, supra. His conduct is provided for in Section 15.1, subd. 32, of Article XIV, Louisiana Constitution of 1921, which provides:

'Any officer or employee in the classified service * * * who, having appeared, refuses to testify or answer any relevant question relating to the affairs of government of the municipality or the conduct of any municipal officer or employee, Except upon the ground that his testimony or answers would incriminate him, shall * * * forfeit his position * * *.' (Emphasis ours.)

We do not know of any prohibition in the federal or state constitution which forbids the legislature from passing laws which affect municipalities according to their population.

'* * * it is fundamental that the Legislature has all the powers of legislation not specifically denied it by the Constitution. * * *' State v. Cusimano, 187 La. 269, 174 So. 352, 355.

'It is a familiar doctrine, that the Legislature of a State, unlike Congress, which cannot do anything which the Federal Constitution does not authorize, may do everything which the State Constitution does not...