Randi Gant v. New Orleans Police Department

RANDI GANT * NO. 2019-CA-0640

VERSUS *
COURT OF APPEAL
NEW ORLEANS POLICE *
DEPARTMENT FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CITY CIVIL SERVICE COMMISSION ORLEANS

******
Judge Tiffany G. Chase
******
(Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge
Tiffany G. Chase)

Donovan A. Livaccari
LIVACCARI LAW LLC
101 W. Robert E. Lee Blvd., Suite 402
New Orleans, LA 70124

COUNSEL FOR PLAINTIFF/APPELLANT

Renee Goudeau
ASSISTANT CITY ATTORNEY
Elizabeth S. Robins
DEPUTY CITY ATTORNEY
Sunni J. LeBeouf
CITY ATTORNEY
1300 Perdido Street
Room 5E03
New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED
DECEMBER 4, 2019

This is a civil service case. Randi Gant (hereinafter “Sgt. Gant”) appeals the

June 6, 2019 judgment of the Civil Service Commission (hereinafter “the

Commission”) which upheld her dismissal by the New Orleans Police Department

(hereinafter “the NOPD”). After consideration of the record before this Court and

the applicable law, we affirm the decision of the Commission.

FACTS AND PROCEDURAL HISTORY

Sgt. Gant, a fifteen-year veteran of the NOPD, was assigned to an

administrative position within the NOPD’s Investigation and Support Bureau

(hereinafter “ISB”). Her duties included fleet management wherein she was

responsible for tracking and reporting the mileage of city owned vehicles assigned

to ISB personnel. In addition, Sgt. Gant was responsible for monitoring

compliance with NOPD’s policies regarding take-home vehicles.1

NOPD Policy 705.2 of the NOPD Policy Manual mandates that a “take-

home vehicle shall not be assigned to an employee when the one-way driving

1
As defined in the NOPD Policy Manual, a take-home vehicle is one “assigned to personnel for
their use within their job assignment [that] may be used for work-related purposes and to
transport the employee to and from work.”

1

distance from the employee’s actual domicile to the employee’s primary reporting

to work site is greater than 40 miles.” NOPD Policy 705.2 also mandates that “[a]

department member assigned a take home vehicle shall complete a City of New

Orleans Take Home Vehicle Add/Delete/Change Form” (hereinafter “take-home

vehicle form”). A payroll deduction is required for use of a take-home vehicle and

an accompanying policy of the City of New Orleans sets the rates at which

employees, who make use of a take-home vehicle, receive a deduction in their

payroll. Employees who live within 0-20 miles of their work site receives a $24.04

weekly deduction while employees who live greater than twenty miles from their

work site receive a $72.12 weekly deduction.

Sgt. Gant is married to Victor Gant (also a sergeant in the NOPD) and, since

2007, the couple maintained a marital residence in Covington (hereinafter “the

marital residence”). The ISB offices are located at 715 South Broad Street in New

Orleans. The parties stipulated the distance between the marital residence and the

ISB offices is greater than forty miles.

In 2013 or 2014, Sgt. Gant’s husband was added to the lease on an

apartment rented by one of his friends on Emerald Forest Boulevard (hereinafter

“the Emerald Forest address”).2 The parties stipulated that the Emerald Forest

address is less than forty miles from the ISB offices. Sgt. Gant’s husband testified

that he would occasionally stay at this apartment to better respond to emergency

calls to report to duty although he acknowledged the marital residence was his

2
Although Sgt. Gant’s husband could not recall when he was added to the lease, an employee of
the apartment complex’s management provided a date range.

2

primary address. He confirmed that Sgt. Gant never lived at the Emerald Forest

address and that her name did not appear on the lease. He further testified that Sgt.

Gant never had a key although she did have an access card to the apartment

complex’s parking lot. In September 2015, the lease ended and Sgt. Gant’s

husband no longer had access to the Emerald Forest address.

On June 30, 2016, Sgt. Gant executed a take-home vehicle form. She listed

her address as the Emerald Forest address. Sgt. Gant signed and initialed the form

affirming she was aware of the policies regarding take-home vehicles and that the

one-way driving distance between her actual domicile and her primary work site

was 37.4 miles.

In 2018, Sgt. Gant was investigated for irregularities in the NOPD’s payroll

system regarding her take-home vehicle. Lt. Precious Banks (hereinafter “Lt.

Banks”) of the NOPD’s Public Integrity Bureau conducted the investigation. The

three charges investigated were premised on Rule 4, Paragraph 2 (Instructions

from an Authoritative Source) with one charge pertaining to take-home vehicles.

During the course of the investigation, Lt. Banks confirmed that Sgt. Gant did not

reside at the Emerald Forest address. Lt. Banks further discovered that Sgt. Gant

had been using the log-in of a subordinate to access the NOPD’s payroll system

and enter mileage ranges associated with her take-home vehicle.3 Sgt. Gant had

manually selected the 0-20 miles range option instead of the 20-40 miles range

3
The NOPD did not pursue discipline for Sgt. Gant’s use of another employee’s log-in
credentials, as it later determined that they were provided voluntarily as the employee was
unable to satisfactorily perform her task of payroll data entry.

3

option. When giving her statement to Lt. Banks, Sgt. Gant contended the

erroneous payroll entries were an unintentional mistake, and filed a series of

payroll adjustment forms to repay the monetary amounts that should have been

properly deducted from her payroll.

On August 31, 2018, Sgt. Gant was issued a Notice to the Accused of

Completed Investigation and Notice of Pre-Disciplinary Hearing form. Lt. Banks

recommended that the original Rule 4, Paragraph 2 charges be dismissed. Three

additional charges were also listed: 1) Rule 4, Performance of Duty, Paragraph 2:

Instructions from an Authoritative Source (NOPD Policy 705 Take Home

Vehicles);4 2) Rule 6: Official Information, Paragraph 2: False or Inaccurate

Reports (City of New Orleans Take Home Vehicle Add/Delete/Change Form and

NOPD Vehicle Inventory Reporting Form); and 3) Rule 6: Official Information,

Paragraph 2: False or Inaccurate Reports (ADP Payroll Records, 44 payroll

periods). Lt. Banks recommended these charges be sustained.

On November 14, 2018, the NOPD conducted a Superintendent’s

Disciplinary Committee pre-disciplinary hearing. The NOPD did not sustain the

Rule 4, Paragraph 2 charge. However, it sustained the Rule 6, Paragraph 2 charges

as to the take-home vehicle form and payroll entries. The penalty for these

violations was dismissal. Sgt. Gant appealed this decision to the Civil Service

Commission.

4
This charge carried over from one of the three original charges with the only difference being a
numerical re-designation of the take-home vehicle policy.

4

A hearing was conducted by a Civil Service Commission Hearing Examiner

at which testimony was heard from Sgt. Gant, her husband, Lt. Banks, Deputy

Superintendent John Thomas (hereinafter “Deputy Superintendent Thomas”),5 and

former Deputy Superintendent Rannie Mushatt (hereinafter “Deputy

Superintendent Mushatt”).6 Evidence introduced into the record included the take-

home vehicle form, documentation of the investigation and resulting discipline,

and the NOPD’s rules, policies, and penalty matrix. On June 6, 2019, the

Commission rendered its decision denying Sgt. Gant’s appeal. Sgt. Gant filed her

appeal to this Court.
STANDARD OF REVIEW

Appellate courts review an appeal of a decision by the Civil Service

Commission under a multifaceted standard of review.

In Banks v. New Orleans Police Dep’t., 2001–0859, p. 3 (La.App. 4
Cir. 9/25/02), 829 So.2d 511, 513–14, we articulated the standard of
review in civil service cases. First, the review by appellate courts of
the factual findings in a civil service case is governed by the manifest
error or clearly erroneous standard. Second, when the Commission's
decision involves jurisdiction, procedure, and interpretation of laws or
regulations, judicial review is not limited to the arbitrary, capricious,
or abuse of discretion standard. Instead, on legal issues, appellate
courts give no special weight to the findings of the trial court, but
exercise their constitutional duty to review questions of law and
render judgment on the record. A legal error occurs when a trial court
applies the incorrect principles of law and such errors are prejudicial.
Finally, a mixed question of fact and law should be accorded great
deference by appellate courts under the manifest error standard of
review. See Stern v. New Orleans City Planning Comm’n, 2003-0817,
pp. 5-6 (La.App. 4 Cir. 9/17/03), 859 So.2d 696, 699–700.

5
Deputy Superintendent Thomas is the current head of the ISB and served as chairperson on the
three-member panel in Sgt. Gant’s Disciplinary Hearing before the NOPD.
6
Deputy Superintendent Mushatt, now retired, was the former head of the ISB at the time the
events underlying the charges against Sgt. Gant transpired.

5

Russell v. Mosquito Control Bd., 2006-0346, pp. 7-8 (La.App. 4 Cir. 9/27/06), 941

So.2d 634, 639-40.

DISCUSSION

Sgt. Gant presents three assignments of error on appeal. The first two

assignments of error relate to the substantive findings of the Commission

challenging the existence of cause for Sgt. Gant’s dismissal and that her dismissal

was commensurate with the offense. The third assignment of error is a procedural

challenge wherein Sgt. Gant seeks to have her dismissal declared an absolute

nullity. We organize our discussion of these assignments of error into two

sections, addressing the procedural challenge first.

PROCEDURAL CHALLENGE: NOTICE

Sgt. Gant argues that because the NOPD did not comply with the notice

requirements of La. R.S. 40:2531(B)(1),7 her discipline of dismissal should be

deemed an absolute nullity pursuant to La. R.S. 40:2531(C). At the Commission

hearing, the following exchange took place between counsel for Sgt. Gant and the

Hearing Examiner:

7
La. R.S. 40:2531(B)(1) provides:

B. Whenever a police employee or law enforcement officer is under investigation,
the following minimum standards shall apply:

(1) The police employee or law enforcement officer being investigated shall be
informed, at the commencement of interrogation, of the nature of the
investigation and the identity and authority of the person conducting such
investigation, and at the commencement of any interrogation, such officer
shall be informed as to the identity of all persons present during such
interrogation. The police employee or law enforcement officer shall be
allowed to make notes.

6

COUNSEL FOR SGT. GANT:

Just to be safe for – for clarity and the stipulation, it’s the time – the –
the requirements of [La. R.S. 40:2531(B)(7)] that we’re stipulating to,
the timeline – the time requirements, right?

HEARING EXAMINER:

Fair point.

COUNSEL FOR SGT. GANT:

Okay. Thank you.

HEARING EXAMINER:

I mean, I guess, for the reader of the record, the required – there’s no
dispute on the appellant’s part that the investigation was completed
within the timeline required by [La. R.S. 40:2531(B)(7).]

COUNSEL FOR SGT. GANT:

Yes, sir.

HEARING EXAMINER:

Okay. And that [it] is my understanding that the appellant intends to
make a different argument with respect to the investigation – with
respect to –

COUNSEL FOR SGT. GANT:

No –

HEARING EXAMINER:

– its adherence to the law?8

COUNSEL FOR SGT. GANT:

– I don’t have any plans on that at this point.

8
From the foregoing exchange, we infer that the “different argument” regarding the “adherence
to the law” is the La. R.S. 40:2531(B)(1) argument briefed in Sgt. Gant’s third assignment of
error.

7

Although counsel for Sgt. Gant would later elicit testimony from witnesses related

to the La. R.S. 40:2531(B)(1) argument, there was never a formal motion made on

the record. See Rivet v. Dep’t of Police, 2018-0229, pp. 13-14 (La.App. 4 Cir.

10/24/18), 258 So.3d 111, 121-22 (employee made a procedural due process

argument alleging insufficient notice and raised it before the Commission in a

motion for summary disposition). The report of the Hearing Examiner does not

reveal that the argument was raised, nor does the opinion of the Commission

render any decision regarding a potential failure to follow the procedural

requirements of the statute.9

Finding nothing in the record establishing that the La. R.S. 40:2531(B)(1)

issue was raised in any of the proceedings below, we decline to consider the issue

now raised for the first time on appeal. See Razor v. New Orleans Dep’t of Police,

2004-2002, pp. 5-6 (La.App. 4 Cir. 2/15/06), 926 So.2d 1, 5.

9
The following three assignments of error are listed in Sgt. Gant’s Notice of Appeal from the
Commission’s decision:

A. The Civil Service Commission erred in determining that cause existed as
required by La. Const. Art. 10, Sec. 8 to discipline Appellant.
B. The Civil Service Commission erred in determining that the penalty assessed
against the Appellant was commensurate with the offense.
C. The Civil Service Commission erred in its interpretation of an NOPD
[regulation] which is overly broad and unduly vague.

A and B mirror the first two assignments of error presented in Sgt. Gant’s appeal to this Court.
The argument in C is incorporated into Sgt. Gant’s first assignment of error related to lawful
cause. No reference is made to a challenge pursuant to La. R.S. 40:2531.

8

SUBSTANTIVE CHALLENGE: FINDINGS OF THE COMMISSION

Sgt. Gant’s substantive challenge to the Commission’s decision requires a

two prong inquiry: 1) whether the NOPD had cause for dismissing Sgt. Gant; and

2) whether the dismissal was commensurate with the offense. See Abbott v. New

Orleans Police Dep’t., 2014-0993, p. 8 (La.App. 4 Cir. 2/11/15), 165 So.3d 191,

197. We address each separately.

Discipline for Cause

“An employee with permanent status in the classified civil service cannot be

subject to disciplinary action by his employer except for cause expressed in

writing.” Regis v. Dep’t of Police, 2013-1124, p. 1 (La. 6/28/13), 121 So.3d 665

(per curiam) (citations omitted). Here, the NOPD is required to establish cause by

proving, by a preponderance of the evidence, that the complained of conduct

occurred, and that the complained of conduct impaired the efficiency of the

department.10 Id., p. 2, 121 So.3d at 665. This Court should not modify the

Commission’s order unless it is arbitrary, capricious, or characterized by an abuse

of discretion. Id. (citing Bannister v. Dep’t of Streets, 1995-0404, p. 8 (La.

1/16/96), 666 So.2d 641, 647). A decision by the Commission is “arbitrary and

capricious” if there is no rational basis for the Commission’s action. Id.

10
The Commission found that Sgt. Gant’s submission of false information impaired the
efficiency of the department noting “[h]er conduct was particularly troubling given her role in
ISB involved managing a fleet of vehicles and enforcing the very policies she violated.” It
further concluded the false entries into the payroll system were “arguably a worse offense given
that she reaped a direct financial benefit” and that the department’s fleet of vehicles is
maintained with public funds. On Sgt. Gant’s appeal to this Court, she does not challenge these
findings.

9

Rule 6, Paragraph 2 provides: “An employee shall not knowingly make, or

cause or allow to be made, a false or inaccurate oral or written record or report of

an official nature, or intentionally withhold material matter from such report or

statement.” Sgt. Gant challenges the Commission’s finding of cause for two

reasons: 1) that the take-home vehicle form and payroll entries are not covered by

the rule; and 2) that her inaccuracies were not knowingly made. We address these

two arguments in turn.

First, Sgt. Gant argues that the take-home vehicle form and payroll entries

should not be considered as records or reports of an official nature and thus are

outside the scope of Rule 6, Paragraph 2. She contends that Paragraph 2, read in

pari materia with the other Paragraphs under Rule 6, dictates that its applicability

should be limited to police reports and not internal administrative documents.

The Commission noted the issue of whether Rule 6, Paragraph 2 should

apply to a take-home vehicle form is a matter of first impression for the

Commission and the NOPD. Deputy Superintendents Mushatt and Thomas, along

with Lt. Banks, testified that, in their experience, only police reports and daily

activity sheets have been subject to disciplinary proceedings under Rule 6,

Paragraph 2. However, Deputy Superintendent Thomas also testified that “based

off the investigation, [the NOPD] determined that [the take-home vehicle form at

issue] was an official form of an inaccurate report, a false or inaccurate report.”

We observe that under the arbitrary and capricious standard, the NOPD is entitled

10

to deference in the interpretation of its own rules. See Bowers v. Firefighters’

Retirement System, 2008-1268, p. 4 (La. 3/17/09), 6 So.3d 173, 176.

The language of Rule 6, Paragraph 2 does not limit the definition of a

“report of an official nature” to one that could impact the course of an

investigation. The Commission noted that while the rule does not define a “report

of an official nature,” take-home vehicle forms and payroll records are maintained

by the NOPD in the normal course of business. It further rejected Sgt. Gant’s

argument that the rule should not apply unless the report is “material.”11 The

Commission reasoned that the NOPD would have specifically limited Rule 6,

Paragraph 2 if it so intended, as in contrast, the “rule requiring honesty and

truthfulness covers knowingly false statements that are ‘material,’ and defines a

material statement as one that could impact ‘the course or outcome of an

investigation or official proceeding.’” Where the NOPD wanted to limit the scope

of its rules, it affirmatively did so within the rule itself. We find the Commission’s

interpretation reasonable.

In Sgt. Gant’s second argument as to an insufficient finding of cause, she

avers she did not knowingly violate Rule 6, Paragraph 2. Sgt. Gant believed she

had the right to list the Emerald Forest address on her take-home vehicle form

because her husband was on the lease and that this right of access extended to her

given the marital relationship. Sgt. Gant also argues that she was not aware her

11
The Commission determined that since the second independent phrase is disjunctive, the word
“material” only applies as a requirement that a matter be material if it is intentionally withheld
from a report. Sgt. Gant does not re-urge this argument in her appeal to this Court.

11

husband’s lease expired in 2016, when she used it on the take-home vehicle form.

As it pertains to the payroll entries, Sgt. Gant argues her selection of the 0-20 miles

option was a mistake and that her arrangement to correct the mistake by the payroll

adjustment forms should weigh in favor of her credibility.12

The Commission found that Sgt. Gant knowingly violated Rule 6, Paragraph

2 when she used the Emerald Forest address on the take-home vehicle form. The

Commission noted Sgt. Gant, who managed ISB’s fleet of vehicles, was

knowledgeable of the mileage limitations. She did not use the Emerald Forest

address for any other official purposes. Testimony from Sgt. Gant and her husband

confirmed the fact that she never resided at the Emerald Forest address and, at all

relevant times, resided at the marital residence. Further, Sgt. Gant admitted she

was using the Emerald Forest address as a “workaround” to fit within the NOPD’s

take-home vehicle policy. The Commission observed that Sgt. Gant likely avoided

putting 20,000 miles on her personal vehicle as a result.

The Commission also found that Sgt. Gant knowingly violated Rule 6,

Paragraph 2 when she entered the 0-20 miles payroll entries. Noting that she made

this alleged “mistake” forty-four times and evaded approximately $2,000 in

deductions, the Commission concluded that “[t]he number of errors combined with

the financial benefit and [Sgt. Gant’s] role within ISB make it more likely than not

that [Sgt. Gant] purposefully selected the lesser mileage deduction.” It further

12
In her testimony before the Commission, Sgt. Gant suggests the mistake was due to the fact
that she used to enter the payroll information for Deputy Superintendent Mushatt and other
officers who were in the 0-20 mile range: “I don’t know if it was just repetitive because I’m just
0 to 20, 0 to 20, 0-20. But I – I can’t explain it because I didn’t realize I was doing it.”

12

found Sgt. Gant’s attempt to repay the money following her statement to Lt. Banks

to be unpersuasive in regards to her credibility.

The Commission weighed the evidence and determined the NOPD

established that Sgt. Gant knowingly violated Rule 6, Paragraph 2 in falsifying

both the take-home vehicle form and the payroll entries. This Court has previously

held that ‘“deference will be given to the factual conclusions of the Commission.”’

Pope v. New Orleans Police Dep’t, 2004-1888, p. 6 (La.App. 4 Cir. 4/20/05), 903

So.2d 1, 4 (quoting Smith v. New Orleans Police Dep’t, 1999-0024, p. 5 (La.App.

4 Cir. 9/22/99), 743 So.2d 834, 837). Here there is sufficient evidence in the

record to support the Commission’s factual conclusions. We therefore find Sgt.

Gant’s argument that the Commission erred in finding she knowingly falsified

official reports to be without merit.

Discipline Commensurate with Offense

Sgt. Gant argues the Commission erred in finding the discipline of dismissal

was commensurate with her offense. In support, Sgt. Gant notes that she was

initially charged with violations of Rule 4, Paragraph 2 (a Level C violation)

which, as applied here, would have only resulted in a five day suspension subject

to mitigating or aggravating circumstances. Sgt. Gant then offers her fifteen year

career with only one other minor disciplinary incident and praise from former

Deputy Superintendent Mushatt as potential mitigating factors. Nonetheless, Sgt.

Gant acknowledges that Rule 6, Paragraph 2 (as a level G violation) does not allow

for any mitigation.

13

“It is well settled that this Court should not modify the discipline imposed

by the Commission unless it is ‘arbitrary, capricious, or characterized by an abuse

of discretion.’” Rivet, 2018-0229, p. 10, 258 So.3d at 120 (quoting Cure v. Dep’t

of Police, 2007-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1095). Great

deference should be afforded to the Commission’s ruling upholding the

disciplinary decision of the NOPD – “neither the [Commission] nor the reviewing

court may serve as a de facto pardon board.” Rivet, 2018-0229, pp. 10-11, 258

So.3d at 120 (citations omitted).

The Commission found the NOPD’s argument that severe penalties should

accompany violations of Rule 6, Paragraph 2 because it would be problematic if

such a compromised officer be required to serve as a material witness in a criminal

prosecution to be persuasive. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,

10 L.Ed.2d. 215 (1963) and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31

L.Ed.2d 104 (1972). Although, Deputy Superintendent Mushatt disagreed that

such concerns apply to Sgt. Gant’s misconduct because internal forms are not

relevant to criminal prosecution, Deputy Superintendent Thomas testified that it

would still be a problem to have an officer’s ethics placed at issue. We

acknowledge a degree of attenuation in the NOPD’s reasoning as, by the nature of

her position, it would be unlikely for Sgt. Gant to serve as a material witness in a

criminal prosecution. However, under the arbitrary and capricious standard, the

NOPD need only advance a rational basis for its disciplinary decision. We find the

14

Commission’s reliance on the NOPD’s Brady and Giglio concerns to be a

reasonable basis to support a penalty of dismissal.

The Commission also noted that dismissal was the only disciplinary sanction

Rule 6, Paragraph 2 provided for in the NOPD’s penalty matrix. Deputy

Superintendent Thomas testified he served on the NOPD’s Compliance Bureau

when the rule was drafted. He stated that as law enforcement officers are given

great deference in their actions, they must live up to a higher standard. This Court

has similarly noted that as “[t]he public puts its trust in the [NOPD] as a guardian

of its safety,” the NOPD should “be allowed to establish and enforce appropriate

standards of conduct for its employees sworn to uphold that trust.” See Rivet,

2018-0229, p. 8, 258 So.3d at 118 (quoting Stevens v. Dep’t of Police, 2000-1682,

p. 8 (La.App. 4 Cir. 5/9/01), 789 So.2d 622, 627). Thus, we find the Commission

was reasonable in determining Sgt. Gant’s dismissal was a penalty commensurate

with her offense. See Rivet, 2018-0029, p. 11, 258 So.3d at 120.

DECREE

For the foregoing reasons, the judgment of the Civil Service Commission is

affirmed.

AFFIRMED

15