Alex Mikkelsen v. Flood Protection Authority - East

1616111.114 to] " I

FIRST CIRCUIT

2025 CA 0083

ALEX MIKKELSEN

VERSUS

Judgment Rendered:

On Appeal from the
State of Louisiana Civil Service Commission

Docket No. S- 18851

Honorable David L. Duplantier, Chairman
Brent C. Frederick, Referee

C. Theodore Alpaugh, III Counsel for Plaintiff/Appellant
Claude A. Schlesinger Alex Mikkelsen
New Orleans, Louisiana

Edward F. Harold Counsel for Defendant/ Appellee
Lawrence J. Sorohan, II Flood Protection Authority - East
New Orleans, Louisiana

BEFORE: McCLENDON, C-3.,, GREENE AND STROMBERG, 33.

McCLENDON, U.

A permanent -status civil service employee seeks review of a Civil Service

Commission decision affirming his termination. For the reasons that follow, we affirm.

Alex Mikkelsen began his full- time employment with the East Jefferson Levee

District Police Department, a division of the Southeast Louisiana Flood Protection

Authority -East, ( hereinafter " SLFPA- E"), in May 2020. Officer Mikkelsen, who served as

a permanent -status police officer, worked the overnight " C Platoon" from 5: 00 p. m. to

5: 00 a. m. alongside Officer Jonathan Downing, under the supervision of Sergeant Gerard

Duplessis and Lieutenant Coy Canulette. Officer Mikkelsen' s duties included patrolling

and conducting police activities in Jefferson Parish, with a focus on the areas along the

Mississippi River and Lake Pontchartrain.

SLFPA- E' s headquarters, located at 1100 Reverend Richard Wilson Drive in Kenner,

Louisiana, is known as the " Safehouse." Officers report to the Safehouse at the beginning

of each shift for roll call and to discuss their assignments for that day, which usually lasts

about thirty minutes. Thereafter, there are no specific duties that require officers to be

at the Safehouse.

In March 2022, SLFPA- E' s Information Technology Department (" IT Department")

noticed a sharp increase in data usage coming from the Safehouse, and an internal

investigation began in order to determine the reason for the increase. The investigation

revealed that the data spikes occurred during C Platoon' s shifts. The IT Department also

identified the devices using the bandwidth as Xbox gaming systems and found large

amounts of incoming data were from Xbox Live. The IT Department determined that

Netflix content was also being streamed.

Based on this information, Terri Durnin, the Captain/ District Commander for the

East Jefferson Levee District Police Department, began to monitor, among other things,

the swipe card access required to enter the Safehouse and the security camera footage

around the perimeter of the Safehouse. According to Captain Durnin, it became clear

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that all of the C Platoon officers were spending an inordinate amount of time at the

Safehouse, which coincided with the dates of the increased internet activity.'

Following this investigation, on October 19, 2022, Kelli Chandler, Regional Director

for SLFPA- E, issued a pre -deprivation notice to the officers involved, including Officer
Mikkelsen, under Civil Service Rule 12. 7, advising that discipline up to and including

termination was being considered for, among other things, alleged dereliction of duty.
The notice also indicated that "[ t] he badge data for the investigatory period reveals that

there is a clear correlation between the excessive data usage dates and the movements

of [Officer] Mikkelsen coming and going from the EILD PD Safehouse premises and time -

stamped video from the installed camera system was matched[.]" The notice also

provided specifics on five dates: May 20, 2022; May 26, 2022; May 30, 2022; May 31,

2022; and June 22, 2022. The notice further indicated that " the only recognized and

permissible reasons" for an officer to be at the Safehouse was if an officer was " off -

assignment" to refuel or obtain personal items, to write reports for previously handled
service calls, for lunch breaks ( 30 minutes), authorized breaks ( 15 minutes), or restroom

breaks.

On October 26, 2022, Officer Mikkelsen submitted a written response through

counsel. After reviewing that response, Director Chandler issued a Final Disciplinary

Notice on October 31, 2022, terminating Officer Mikkelsen' s employment effective

November 1, 2022. The three other members of C Platoon were also terminated as a

result of the investigation.

Officer Mikkelsen timely appealed the disciplinary action to the Louisiana State Civil
Service Commission ( the " Commission" }. A Referee conducted evidentiary hearings on

March 30, August 10, and August 11, 2023. Officer Mikkelsen also sought summary

disposition on the grounds that the pre -deprivation and final notices did not satisfy the
requirements of Civil Service Rules 12. 7 and 12. 8.

I While Officer Mikkelsen maintained that the investigation did not involve anyone other than C Platoon
employees, Captain Durnin testified that B Platoon, the other platoon that worked the night shifts not
covered by C Platoon, were initially part of the investigation. The investigation also contained records of B
Platoon activities.
However, Captain Durnin testified that B Platoon "[ w] as out of it" after the data usage
began to be compiled.
With regard to B Platoon, Captain Durnin explained " it was one day, maybe two,
and it wasn' t as high." Rather, high data usage occurred during C Platoon' s shift.

3

In a decision dated August 1, 2024, the Referee denied Officer Mikkelsen's motion

for summary disposition, finding that the notices satisfied Civil Service Rules 12. 7 and

12. 8. The Referee also upheld Officer Mikkelsen' s termination. 2 The Referee found,

among other things, that SLFPA- E proved Officer Mikkelsen, rather than patrolling his
designated areas, spent an inordinate amount of time at the Safehouse on specific dates.

The Referee further found that the misconduct was " manifestly detrimental to the state

service" and warranted dismissal. Because Officer Mikkelsen did not file an application

to request that the Commission review the Referee' s decision, the Referee' s decision

became the final decision of the Commission, and is subject to appellate review by this

court. See LSA -Const. art. X, § 12. For clarity, we will refer to the Referee' s ruling and

findings as that of the Commission.

Officer Mikkelsen timely appealed the Commission's decision to this court. On

appeal, Officer Mikkelsen asserts six separate assignments of error, which we have

summarized into three assignments of error below:

1) Procedural Due Process / Notice Error
The Commission erred in concluding that the pre -deprivation and final disciplinary
notices complied with Civil Service Rules 12. 7 and 12. 8.

2) Lack of Cause for Discipline
The Commission manifestly erred in concluding that there was cause for discipline
because Officer Mikkelsen' s conduct did not violate SLFPA- E' s policy and/ or impair
the efficient operation of the public service.

3) Excessive or Disproportionate Penalty
Even if some misconduct occurred, the Commission acted arbitrarily or capriciously
in affirming the termination because the discipline imposed was not commensurate
with the alleged infractions and, therefore, constitutes an excessive penalty and
an abuse of discretion.

LAW

Tenured or classified civil service status is a property right and cannot be taken

away without due process. See LSA -Const. art. I, § 2; Moore v. Ware, 2001- 3341 ( La.

2/ 25/ 03), 839 So. 2d 940, 948. As explained in Cleveland Bd. of Educ. v. Loudermill,

470 U. S. 532, 541, 105 S. Ct. 1487, 1493, 84 L. Ed. 2d 494 ( 1985), this due process right

for civil service employees is a constitutional guarantee.

2 Two other C Platoon officers appealed to the Commission, and the Commission also affirmed their
terminations.

Il

No person who has gained permanent status in the classified state or city service

shall be subjected to disciplinary action except for cause expressed in writing. LSA -Const.

art. X, § 8( A). " Cause" for the discipline of such an employee includes conduct prejudicial

to the public service or detrimental to its efficient operation. Kirk v. Dept of Health

and Hospitals, 2013- 1591 ( La. App. 1 Cir. 5/ 2/ 14), 147 So3d 202, 204. The employer

must prove by a preponderance of the evidence that the employee's conduct did, in fact,

impair the efficiency and operation of the public service in which the employee is

engaged. Id. at 204- 05.

A classified employee subjected to such disciplinary action shall have the right of

appeal to the appropriate Commission, and the appointing authority ( the employer of an

employee in classified civil service) bears the burden of proof on appeal as to the facts.

LSA -Const. art. X, § 8( A). Thereafter, the final decision of the Commission shall be

subject to review on any question of law or fact to the court of appeal wherein the

Commission is located. LSA -Const. art. 10, § 12( A).

Civil Service Commission decisions are subject to the same standard of review as

a decision of a district court. Johnson v. Dept of Health and Hospitals, 2000- 0071

La. App. 1 Cir. 2/ 16/ 01), 808 So. 2d 436, 438; see Usun v. LSU Health Sciences Ctr.

Med. Ctr., 2002- 0295 ( La. App. I Cir 02/ 14/ 03), 845 So. 2d 491, 494. On review, great

deference is given to the factual determinations of the Commission, and an appellate

court will not overturn those determinations in the absence of clear or manifest error.

Kirk, 174 So3d at 204. An appellate court should not reverse the Civil Service

Commission' s determination of the existence of cause for a disciplinary action unless the
decision is arbitrary, capricious, or an abuse of discretion." Williams v. Orleans Levee

District,, Board of Commissioners, 2000- 0297 ( La. App. I Cir. 3/ 28/ 01), 784 So. 2d

657, 659, writ denied, 2001- 1730 ( La. 9/ 14/ 01), 796 So. 2d 686. However, with respect

to the Commission' s decisions as to jurisdiction, procedure, and interpretation of laws and

regulations, the judicial function is not so limited. Marcantell v. Dept of Transp. &
Dev., 590 So. 2d 1253, 1256 ( La. App. 1 Cir. 1991). The " error of law" standard applies

to the legal aspects of a mixed question of law and fact presented in review of an

administrative decision. See Id.

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When evaluating the Commission' s determination as to whether the disciplinary

action imposed is commensurate with the infraction, an appellate court should not modify

the Commission' s action unless it is arbitrary, capricious, or an abuse of discretion. Kirk,

147 So. 3d at 204, d!Wg Bannister v. Dept of Streets, 95- 0404 ( La. 1/ 16/ 96), 666

So. 2d 641, 647. " Arbitrary or capricious" means the absence of a rational basis in the

record for the action taken. Id.

DISCUSSION

Procedural Due Process/ Notice Error

On appeal, Officer Mikkelsen asserts that SLFPA- E, the appointing authority herein,

failed to comply with Civil Service Rules 12. 7 and 12. 8, which address the pre -deprivation

and final disciplinary notices, respectively. Rule 12. 7 provides that "[ w] hen an appointing

authority proposes to discipline or remove a permanent employee, the employee must

be given oral or written notice of the proposed action, the factual basis for and a

description of the evidence supporting the proposed action, and a reasonable opportunity

to respond." Further, Rule 12. 8( b) requires the appointing authority to "describe in detail

the conduct for which the action is being taken including, where pertinent, dates, times,

places, and names of persons directly involved in or affected by such conduct[.]"

Rule 12. 7 codifies the principle elucidated in Loudermill, "i. e. due process entitles

an employee threatened with termination to notice of the charges lodged against him,

and an opportunity to tell his side of the story before termination." Lange v. Orleans

Levee Dist., 2010- 0140 ( La. 11/ 30/ 10), 56 So. 3d 925, 930. The purpose of the pre-

termination hearing is not to determine with certainty whether termination is appropriate;

instead, the hearing serves as " an initial check against mistaken decisions—essentially, a

determination of whether there are reasonable grounds to believe that the charges

against the employee are true and support the proposed action." Id. at 930- 31, quoting

Loudermill, 470 U. S. at 545- 46, 105 S. Ct. at 1487. When a civil service employee is

entitled to a full evidentiary hearing after termination, and retroactive relief such as

reinstatement is available, pre -termination due process is satisfied by notice and an

opportunity to respond. Lange, 56 So. 3d at 931. In other words, only the barest of a

1,-

pre -termination procedure is required when an elaborate post -termination procedure is

Further, Rule 12. 8 requires that a permanent employee must be given written

notice of the action before the action becomes effective, and the notice must " describe

in detail the conduct for which the action is being taken." Lazard v. Orleans Levee

Dist., 2014- 1423 ( La. App. 1 Cir. 4/ 24/ 15), 2015 WL 1882664 at * 3 ( unpublished). This

rule " plainly comprehends a fair and clear statement of the misconduct of the employee

including, wherever pertinent, times, dates, places[,] and amounts." Id. ( internal

quotation and citation omitted). The purpose of this rule is to apprise the employee in

detail of the charges and limit any subsequent proceedings to the stated reasons. Id.

internal citation omitted.)

On appeal, Officer Mikkelsen avers that neither the October 19, 2022 pre -

deprivation notice nor the October 31, 2022 final disciplinary notice satisfy the

requirements of Rules 12. 7 and 12. 8. He maintains that the notices, while they provide

broad timeframes of date usage, do not indicate who used the data or for what purpose.

Officer Mikkelsen also contends that SLFPA- E failed to show what specific policy
he violated. Officer Mikkelsen maintains that although the notices indicated that he,

along with the other employees, violated Subsections D, F, and G found in Section 7 of

the SLFPA- E Employee Handbook (" the Handbook ), 3 and certain provisions of the East

Jefferson Levee District Police Department Code of CondUCt, 4 neither of the notices

specify how any of the referenced provisions were violated. Rather, they merely indicate

that Officer Mikkelsen, as well as his fellow employees, spent an inordinate amount of

3 Subsection D provides that " Failure to perform assigned duties or to follow a supervisor's instructions
may be cause for disciplinary action up to and including termination." Subsection F provides that " levee
district equipment for personal use is prohibited. No private projects for individuals shall be done on levee
district premises or while on duty." Subsection G provides that "The following activities will not be tolerated
and will be cause for the recommendation of disciplinary action, up to and including termination: Willful
destruction or theft of Agency property or the property of others on Levee District property, operation of
equipment the employee is not trained to use; unauthorized modification or unauthorized use of SLFPA- E
or levee district property or the property of others."

4 Officer Mikkelsen notes that the two notices also reference the East Jefferson Levee District Police
Department Code of Conduct, including provisions that address personal and immoral conduct ( Articles 25
and 27), instructions from an authoritative source ( Article 54), unsatisfactory performance ( Article 55),
disobedience of orders ( Article 56), and violation of rules ( Article 24). Further, Article 5 of the Code of
Conduct provides that members are " deemed to have knowledge of these rules[.]"

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time at the Safehouse. Officer Mikkelsen concludes that SLFPA- E failed to comply with

Civil Service Rules 12. 7 and 12. 8.

In opposition, SLFPA- E maintains that Officer Mikkelsen' s claims of insufficiency of

the notices are belied by the fact that his counsel wrote a seven -page, single- spaced

response to the pre -deprivation notice. 5 SLFPA- E further contends that review of the

notices makes plain that it complied with the Civil Service Rules. SLFPA- E avers that the

notices discuss in detail the conduct, Xbox usage, and inordinate amount of time Officer

Mikkelsen spent in the Safehouse. SLFPA- E also avers that the notices describe the

origins and conduct of the investigation, the dates and times of the misconduct, and the

rules and guidelines at issue. SLFPA- E concedes that the notices did not identify who

was responsible for the data use among C Platoon at any given time. However, SLFPA- E

asserts the failure to identify the user does not undermine the conclusion that all members

of C Platoon were present when Xboxes were being used in the Safehouse, and no one

else was present in the Safehouse at those times.

Further, SLFPA- E avers that the two cited Civil Service Rules do not require an

appointing authority to identify any personnel policy, rule, or regulation in a disciplinary

notice, especially one narrowly tailored to the specific conduct. Rather, SLFPA- E asserts

that the question in a civil service hearing is whether the conduct constituted " cause," or

conduct that impairs the efficient and orderly operation of the public service. See Civil

Service Rules 12. 2( b) and 1. 5. 2. 01. 6 Considering the foregoing, SLFPA- E concludes that

the Commission properly determined that the notices provided sufficient detail.

Here, both the pre -termination and final disciplinary notices sent to Officer

Mikkelsen indicate the Safehouse is considered closed after 4: 30 p. m. each day, and while

night shift police platoons are allowed access, such access " should be infrequent." Both

notices provide that "[ a] ll night shift police personnel have patrol assignments, both

5 SLFPA- E contends that Officer Mikkelsen never asserted that he misunderstood the charges against him,
denied the conduct, or claimed the conduct was authorized. Rather, SLFPA- E avers that Officer Mikkelsen' s
response was the general proposition that he had responsibilities that would at some points require him to
be at the Safehouse.

6 Civil Service Rule 12. 2( b) provides that "[ a] n appointing authority may discipline or remove a permanent
employee for cause." Civil Service Rule 1. 5. 2. 01 defines cause as " conduct which impairs the efficient or
orderly operation of the public service."

proactive and reactive, encompassing their entire work shifts, allowing for brief periods

for lunch or break which may or may not be spent at the [ Safehouse]." Further, the

notices detail the purported dates, times, and duration Officer Mikkelsen was present at

the Safehouse. For example, the May 20, 2022 date, which is referenced in both notices,

indicates:

Safehouse video surveillance shows Mr. Mikkelsen to be in the EILD PD
Safehouse facility between the hours of 5: 20 p. m. and 8: 06 p. m. During
this time frame Mr. Mikkelsen is seen entering the facility with a backpack
and an air fryer. Total time of approximately 2 hours and 45 minutes. ( The
Daily Recap log shows that you were assigned to patrol " Lake/ River," the
Safehouse is not listed as part of your assignment).

There are additional dates in both notices that provide similar details. Both notices

indicate that " the gaming activity coincides with the dates and times that you and the

other members of Platoon C were captured on Safehouse surveillance video. Video

surveillance shows that you were at the Safehouse during the periods that gaming activity

was detected by the IT Department." Further, we note that both notices, in addition to

referencing a number of other provisions, cite Subsection 7- D of the Handbook for the

proposition that "[ flailure to perform assigned duties or to follow a supervisor's

instructions may be a cause for disciplinary action up to and including termination."

Moreover, while Officer Mikkelsen testified that he never received the Handbook, he

signed an acknowledgment indicating that he had received same on May 4, 2020.

Considering the foregoing, we find that the pre -termination letter provided Officer

Mikkelsen notice and substance of the charges lodged against him. See Dept Pub.

Safety and Corr. v. Savoie, 569 So. 2d 139, 142 ( La. App. 1 Cir. 1990) ("[ N] otice is

sufficient if it apprises the employee of the nature of the charges and general substance

of the evidence against him.") Also, both the pre -termination and final disciplinary notices

provided Officer Mikkelsen with specificity as to the date, times, and alleged duration he

was at the Safehouse while he purportedly should have been patrolling his assigned area.

See Lazard, 2015 WL 1882664 at * 3. Given the detail provided in the notices and Officer

Mikkelsen' s entitlement to a full evidentiary hearing post -termination, we conclude that

the Commission did not err in concluding that SLFPA- E complied with Civil Service Rules

12. 7 and 12. 8. Accordingly, the first assignment of error is without merit.

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Lack of Cause for Discipline

In the second assignment of error, Officer Mikkelsen contends that the

Commission' s decision upholding the termination was manifestly erroneous because

testimony established that he did not violate SLFPA- E policy. He maintains that SLFPA- E

used circumstantial and speculative evidence to purportedly show that he was in the

Safehouse while he should have been patrolling in order to justify discipline, and the

Commission relied upon that same evidence in affirming the discipline.

Specifically, Officer Mikkelsen notes that the Commission, in its reasons, cited three

specific periods during which Officer Mikkelsen purportedly remained at the Safehouse

for extended durations— nearly three hours on May 20, nearly seven hours on May 26,

and an additional ninety minutes on June 22. Officer Mikkelsen claims that he was in the

Safehouse for nearly three hours on May 20, preparing food and performing

administrative tasks, which he maintains is not out of the ordinary. Further, he asserts

that while the daily recap sheet from May 20 showed only five entries, the recap is limited

to actual incidents and would not include time spent patrolling. With regard to May 26,

he acknowledged that he had no specific recollection on that date, and that there were

only two calls on the recap sheet that "did stand out." Moreover, Officer Mikkelsen avers

that while SLPA- E initially indicated that he spent nearly seven hours in the Safehouse on

June 22, the Commission only found Officer Mikkelsen at the Safehouse for ninety

minutes. Even so, Officer Mikkelsen avers that there were valid reasons to be at the

Safehouse, including eating, preparing reports, or completing online training. Officer

Mikkelsen contends the Commission manifestly erred by crediting allegations that were

unsupported by concrete proof of misconduct.

Officer Mikkelsen also maintains that he, as well as one of his supervisors, were,

told that they could attach personal devices to the Safehouse' s network. Officer

Mikkelsen avers that an Xbox is a personal device, and while he did admit to connecting

it to the Safehouse' s network to download updates, Officer Mikkelsen testified that he

never played games at the Safehouse. He emphasizes that there is no conclusive

evidence that he used an Xbox gaming console during work hours and maintains that his

presence at the Safehouse was limited to sanctioned activities. Accordingly, Officer

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Mikkelsen concludes that SLFPA- E failed to meet its burden of proof to establish cause

for discipline.

In contrast, SLFPA- E asserts that the termination was based on Officer Mikkelsen' s

repeated failure to perform his assigned patrol duties— not on whether he personally used

an Xbox in the Safehouse. While the investigation did uncover Xbox usage during these

shifts and it cannot be shown that it was in fact Officer Mikkelsen who was using the

Xbox, SLFPA- E suggests that this issue is a red herring. Instead, SLFPA- E maintains that

the critical issue was Officer Mikkelsen' s prolonged absence from duty.

Specifically, Director Chandler testified that Officer Mikkelsen and his fellow officers

were assigned to " patrol the levees, which is their main responsibility." Despite this

primary duty, SLFPA- E avers that it cited specific evidence showing that Officer Mikkelsen

spent hours at the Safehouse on multiple shifts despite having no assignment that

justified his presence there. SLFPA- E notes the Commission found that Officer Mikkelsen,

rather than patrolling his designated area, remained at the Safehouse for extended

periods on May 20, May 26, and June 22, 2022. Considering the foregoing, SLFPA- E

maintains that there is an adequate basis in the record to affirm the Commission's finding

that legal cause existed for SLFPA- E' s disciplinary action.

Credibility determinations are entitled to great deference and will not be disturbed

on appeal absent manifest error. See Falgout v. Am. Alt. Ins. Corp., 2023- 1291

La. App. 1 Cir. 6/ 27/ 24), 392 So. 3d 682, 685. Under the manifest error standard of

review, we cannot not reweigh the evidence or substitute our own evaluations for those

of the Commission. A factual finding may only be reversed if it is clearly wrong or lacks
a reasonable factual basis in the record. Stobart v. State., Dept of Transp. & Dev.,

617 So. 2d 880, 882 ( La. 1993); Rosell v. ESCO, 549 So. 2d 840, 844 ( La. 1989)

The Commission cited specific periods during which it found Officer Mikkelsen

remained at the Safehouse for extended durations when he was assigned to active patrol.

In reaching this finding, the Commission, in its reasons for judgment, indicated: " Captain

Durnin accessed badge logs; the motion detector information; the pictures taken at the

entry doors; and the pictures taken of the Safehouse parking lot for the dates referenced

in [ Mr. Mikkelsen' s] disciplinary letters. He also took notes as to when [ Mr. Mikkelsen]

11

entered the Safehouse." The Commission found that the " evidence and testimony

establish [] that Mr. Mikkelsen spent an inordinate amount of time at the Safehouse on

May 20, 2022, May 26, 2022[ j and June 22, 2022."

When questioned about these timeframes, the Commission found that Officer

Mikkelsen offered vague and inconsistent explanations, frequently testifying that he could

not recall the shift in question or offered speculative justifications—such as that he may

have been eating, completing reports, or engaging in online training—without linking

those activities to the duration of time spent in the Safehouse. The Commission

contrasted this with Officer Mikkelsen' s detailed testimony about other shifts, where he

accounted for his time through report writing and responding to calls. The Commission

concluded that Officer Mikkelsen' s failure to recall or explain the extended time on the

dates at issue undermined his credibility and supported a finding of dereliction of duty.

Considering the record as a whole, we cannot conclude that the Commission' s factuaP

determinations are manifestly erroneous. See Davis v. AMS Tube Corp., 2002- 2427

La. App. 1 Cir. 12/ 31/ 03), 868 So. 2d 141, 146, writ denied, 2004- 0286 ( La. 3/ 26/ 04),

871 So. 2d 354 ("[ W] hen factual findings are based on witness credibility, the appellate

court must give great deference to the fact -finder's decision to credit or discredit a

witness's testimony.' }

The Commission cited numerous provisions Officer Mikkelsen purportedly violated,

but most notably, Subsection 7- 1) of the Handbook, which, as noted above, provides that

an employee may be disciplined for failing to perform his assigned duties. The

Commission found that Officer Mikkelsen repeatedly failed to patrol, which was his " main

responsibility," thereby impairing SLFPA- E' s efficient operation. Considering the

foregoing, we cannot conclude that the Commission' s finding that legal cause existed for

disciplinary action was arbitrary, capricious, or an abuse of discretion. Accordingly, this

assignment of error lacks merit.

Excessive or Disproportionate Penalty

Officer Mikkelsen contends that even if he committed infractions that warranted

discipline, "' termination was excessive and not commensurate with the infractions."

Officer Mikkelsen avers that the time purportedly spent in the station was de minimis

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relative to all of the shifts worked during the investigation, March 16, 2022 through

October 21, 2022. Officer Mikkelsen avers that SLFPA- E did not offer any evidence to

establish a real and substantial relationship between the alleged infraction( s) and an

adverse impact on the efficient operation of the public service. Further, Officer Mikkelsen

avers that he had never been the subject of any prior disciplinary action. Rather, Officer

Mikkelsen testified that he had received excellent performance evaluations, had been

promoted at the Levee District, had been awarded Officer of the Month multiple times,

and had been presented with " Challenge Coins" for multiple arrests. Considering the

foregoing, Officer Mikkelsen urges the court to find that termination was not warranted.

In opposition, SLFPA- E asserts that the Commission did not abuse its discretion in

affirming Officer Mikkelsenfs termination. SLFPA- E avers that Officer Mikkelsen was a

police officer working the night shift, and he was entrusted to report to work and do the

job for which he was hired— to keep the public safe. SLFPA- E maintains that "[ n] o one

was present at night to look over the shoulders of the C [ Platoon] and supervise [ them],"

and they "go out among the public where they must be their own accountability." SLFPA-

E asserts that Officer Mikkelsen destroyed any trust that he would carry out his duties if
unsupervised.
SLFPA- E maintains that the risks " cannot be downplayed by claiming that,
other than when he failed to do his job, [ Officer] Mikkelsen was a good employee."

SLFPA- E avers that exposing it " and the public to extremely serious risks cannot be

countenanced, particularly by a member of law enforcement." SLFPA- E suggests that

dismissal was appropriate under the circumstances.

Termination from permanent employment is the most extreme form of disciplinary
action that can be taken against a classified employee. See Honord v. Dept of Public

Works, 2014-0986 ( La. App. 4 Cir. 10/ 29/ 15), 178 So. 3d 1120, 1131, writ denied, 2015-

2161 ( La. 1/ 25/ 16), 185 So. 3d 749.
The Commission has a duty to decide whether the

punishment imposed is commensurate with the dereliction. Guillory v. Dept of

Transp. & Dev., 475 So. 2d 368, 370- 71 ( La. App. 1 Cir. 1985). As noted above, when

making this determination, an appellate court should not modify the Commission' s order
unless it is arbitrary, capricious, or an abuse of discretion. Kirk, 147 So. 3d at 204, Oft

Bannister, 666 So. 2d at 647.

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At the hearing, Director Chandler testified that Officer Mikkelsen' s conduct

impeded the safety of the community" and " impacted the ability to maintain security on
SLFPA- E' s] assets." Further, the final disciplinary notice similarly indicated that as a

police officer for C Platoon, Officer Mikkelsen was " expected to patrol assigned areas to

prevent crime and ensure protection of life and property during [ his] entire shift with the

exception of permissible breaks as defined by the Police Communication Signals. ... [ His]

actions endangered the citizens of Jefferson, Orleans and St Bernard parishes by not

conducting [ his] assigned patrols[.]" Similarly, the Commission found that "[ Officer]

Mikkelsen' s failure to patrol his designated areas exposed the agency to further potential
impairment. If an incident had occurred on [ Officer] Mikkelsen' s patrol route when he

was not patrolling it could have led to destruction of life and/ or property." The

Commission found that "[ s] uch behavior is manifestly detrimental to the state service and

simply cannot be tolerated." Given the substantial relationship between the improper

conduct and the efficient operation of the public service, we cannot conclude the

Commission' s ruling affirming the termination was arbitrary, capricious, or an abuse of
discretion. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the August 1, 2024 Civil Service Commission

decision. Costs of this appeal are assessed to appellant, Alex Mikkelsen.

AFFIRMED.

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