
    Karen SABO v. DEPARTMENT OF POLICE.
    No. 10296.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1981.
    Rehearing Denied May 15, 1981.
    
      Ellis Jay Pailet, New Orleans, for plaintiff-appellant.
    Salvador Anzelmo, City Atty., and Michael A. Starks, Deputy City Atty., New Orleans, for defendant-appellee.
    Before SAMUEL, GULOTTA and GARRISON, JJ.
   SAMUEL, Judge.

Plaintiff appeals from a judgment of the Civil Service Commission upholding her dismissal by the Superintendent of Police. The dismissal resulted from an internal investigation concerning questionable use of overtime by employees assigned to the police automobile pound. Plaintiff is a civilian employee of the department. She prepares the automobile pound payroll.

On April 16, 1977 at approximately 1 p. m. plaintiff was not in the office, having gone home with permission of her supervisor. Five police officers conducted a surprise inspection at the pound at that time. A partially completed investigation of the records for which plaintiff was responsible showed she had worked on that date, April 16, 1977, from 4 a. m. to 11 a. m., and overtime from 11 a. m. to midnight. The overtime item had been corrected to show overtime from 11 a. m. to 4 p. m. Other than the entry concerning her own overtime the remainder of the report for other employees was incomplete. Plaintiff was contacted at her residence and returned to the pound where she was questioned about the irregularities. Other employee statements indicated plaintiff previously had submitted false payroll records reporting she had worked overtime when she had not done so.

Thereafter, a former employee complained plaintiff had contacted her and threatened and intimidated her relative to the ongoing investigation. After receipt of this complaint plaintiff was ordered to make a further statement in this connection on May 25, 1977.

On that date plaintiff was advised her action in this regard was a possible criminal offense. She was advised of her constitutional rights and asked to make a statement. She refused. The interrogator then suspended the criminal action and opened the civil investigation, advising plaintiff of her rights, including the fact that anything she might say thereafter in the civil proceeding could not be used against her in any criminal action. She refused to make a statement but later reconsidered, rendered a written statement and answered questions propounded to her.

On June 29,1977 plaintiff was offered an opportunity to present facts in mitigation or explanation of her misconduct in office (the payroll records and the alleged intimidation) at the office of the Superintendent of Police.

By letter of July 5, 1977, specifying in detail all of the above outlined facts, the superintendent advised plaintiff she was dismissed for submitting fraudulent payroll records to obtain payment for unearned overtime on April 16, 1977, violation of nine articles of rules for the Administration of the Department of Police, and conduct contrary to the standards of service prescribed by the rules of the Civil Service Commission for the City of New Orleans. In his opinion her comments at the meeting on June 29, neither explained nor mitigated such conduct.

Plaintiff appealed her dismissal to the Civil Service Commission. The Commission had before it plaintiff’s alleged misconduct on April 16, 1977 (in connection with payment for hours not worked), failure to make a statement in connection with an ongoing investigation, and misconduct relative to alleged threats and intimidation.

Following hearing on these allegations, the Commission found the incident of April 16 was proved, the allegation relative to public intimidation was not proved because plaintiff denied it and the other person allegedly intimidated could not be found to testify, and the allegation relative to refusal to make a statement in disobedience of a direct order was proved. The Commission concluded both of the charges which had been proved constituted a serious breach of duty owed by appellant to her employer. It affirmed the action of the appointing authority and dismissed the appeal. We find a discussion of the refusal to make a statement unnecessary. The misconduct relative to payment for hours not worked, by itself, is sufficient for us to affirm the decision appealed from.

In this court appellant invokes the doctrine of estoppel. It is her position that she should not have been terminated for actions which have been tolerated, and which she was directed to do by supervisory personnel as a method of handling the problem of compensatory time. Her testimony in this regard is:

She has been a civilian employee of the department for eleven years. Her normal tour of duty at this time was from 4 a. m. to 11 a. m. Any hours worked after that time are paid for as overtime. In some prior years there was no such thing as overtime or compensatory time. In 1970 there was no overtime worked so they would come in from 5 to 11 to work.

In those previous years you could not make more than 20 hours per week and she worked 4 hours additional time because there was no one else to make the payroll. When employees had worked overtime in some previous years they were not paid for overtime but could take the time off on other days (compensatory time). Then the city cut out compensatory time and they were not paid for the additional hours worked. Therefore, in 1970, 1972, 1973 and 1977 she did not receive pay for overtime. She concluded the city owed her overtime for previous time she worked without being paid (including 1977) and consequently, when she currently listed herself for overtime which she did not work, she was reimbursing herself for earlier work for which she had not been paid.

In addition to the records of April 16, which did not reflect the hours she actually worked, she testified without objection to questions relating to her work on April 1, 2 and 3, wherein she listed herself as working 20 hours on each of those days. She admitted she had not worked those hours on April 1 (although she received full overtime pay therefor), leaving two and one-half hours early on April 1. She took off early at that time because her husband was “loaded” at a bar and she wanted to go get her car.

On April 16 she had permission from her supervisor to come in two and one-half hours late. Since she had permission she felt she was entitled to pay for the full shift. (Her superior testified she did have his permission to come in late but he did not expect she would be paid for it.)

Sergeant Pittman, her superior, was commander at the automobile pound in 1977. He testified appellant was a good worker and gave a considerable amount of her free time to the automobile pound when they needed help in 1975 and 1976 for a four month period when there was no money for overtime or compensatory time. In 1977 she also worked several days without extra pay.

Relative to twenty-hour days, he stated he himself worked twenty-four-hour days during Mardi Gras (and apparently received full pay plus overtime) because he had his camper at the automobile pound and slept there the full eleven days of Mardi Gras.

Appellant’s other witness, Frank Luizza, stated employees could be given permission to come in late but they were not entitled to be paid for a full shift unless they worked 8 hours from the time they came in late. He did state that the department had tolerated a person coming late and being paid the full 8 hours.

Sergeant Charles Polit, also called as a witness by appellant, testified as to plaintiff leaving early on April 1. (He drove her to the bar to pick up her ear because of her husband’s condition.) He thought she should be paid full time even though she didn’t work because of the many times she had worked two or three hours overtime and never got paid for it.

The Commission refused to accept plaintiff’s explanation, to some extent corroborated by her superior, that because she had worked overtime in the past the city “owed” it to her. They concluded an employee had no right whatever to adjust grievances as to pay on an ad hoc basis and that the city does not owe her in the sense she would be able to stay home, report herself working and draw overtime pay for time spent at home. They felt all sorts of mischief would result if this individual subjective adjustment were permitted. We agree and add that this is particularly true of the person entrusted with preparing the payroll.

The decision appealed from is affirmed.

AFFIRMED.

GARRISON, J., dissents with written reasons.

GARRISON, Judge,

dissenting:

I cannot agree with the majority in this case. At the outset — to put this matter in the perspective in which I see it — it should be said that the operation of which Mrs. Sabo was a part is best likened (with regard to its administrative and operated controls) to that of a Chinese laundry in a thunderstorm.

On April 16, 1977, the Internal Affairs Division, hereinafter I.A.D., of N.O.P.D. conducted a surprise investigation of payroll procedures at the Auto Pound. John Dupre, Frederick Plalygrap, John Johnston and Anthony Scott, all agents of I.A.D., arrived at the pound at 1:00 p. m. Mrs. Sabo, was not at the pound. She was taken to Internal Affairs Headquarters for questioning. In the course of that questioning, she was first given Miranda warnings, including the following from a transcript of the questioning:

“Therefore, it is my duty to inform you that you have your constitutional rights about giving a statement. I have filled out NOPD Rights on an Arrestee or Suspect Form # 94338, advising you of your rights. That you need not make any statements, that is you have a right to remain silent, anything you say may be used against you in trial. You have the right to consult with and obtain the advice of an attorney before answering any questions. If you cannot afford an attorney, the court will obtain an attorney to represent you and advise you. You have the right to have your attorney or an appointed attorney present at the time of any questioning or giving of any statements. Do you understand those rights? (emphasis added)
A. Yes, I do.
Q. I am given to understand by yourself, that you wish to speak to an attorney before waiving these rights, am I correct?
A. Correct.
Q. As a result of your refusing to sign waiving your rights concerning any statements made in this criminal investigation I now advise you that we are terminating temporarily this criminal investigation and are beginning the departmental internal investigation. Do you understand this?
A. Yes.”

Switching from the criminal investigation to the departmental investigation in a matter of seconds (and accelerating with corresponding speed the posture of jeopardy in which Mrs. Sabo was being placed) the interrogator shifted into higher gear:

“Q. I have given you a copy of NOPD Form # 38A, outlining your rights as an employee, under Article 6, of the City and Police Contract. I am requesting that you sign this form acknowledging that you have read these rights. You have signed this form, is that correct?
A. Yes.
Q. ... I now advise you that as a City Civil Service Employee, you may not refuse to answer questions relating to the affairs of government of the State or City, or the conduct of any State or City officer or employee including yourself, and your refusal to do shall operate as a forfeiture of your Civil Service job and you will not be eligible for appointment to any position in a State or City Civil Service thereafter, for a period of ten years. I hereby advise you that Paragraph (1), Section 15, of Article 14, of the Louisiana Constitution, outlines that the heretofore stated requirements of Civil Service Employees, and also provided the heretofore stated penalty for noncompliance. I also advise you that in the United States Supreme Court, (Garrity v. New Jersey, 385 U.S. 493, [87 S.Ct. 616, 17 L.Ed.2d 562]) rules that statements made or answers given by Civil Service Employees are not free and voluntary in the sense that they can be introduced in a criminal proceeding against a Civil Service Employee making them when such statements or answers were required by State law under penalty of job forfeiture. I again advise you that this Supreme Court ruling, because of the provisions of Paragraph (1), Section 15, of Article 14, of the Louisiana Constitution, already mentioned is applicable in Louisiana, and that the total legal effect is that you are required to make statements and answer questions in a departmental internal investigation. However, any statement made by you or answers given by you in a departmental internal investigation, cannot be introduced in a criminal prosecution against you. Do you understand this?
A. Yes.
Q. In view of the above, are you willing to comply with State law and make a statement and answer questions in this departmental internal investigation?
A. No.
Q. As you have indicated your unwillingness to make a statement and answer questions in this departmental internal investigation in compliance with State law and irrespective of legal safeguard, I now order you to make a statement and answer questions in this departmental internal investigation. Will you obey this order?
A. No....”
(emphasis added)

Mrs. Sabo informed the interrogator that she would consider making a statement after consulting her attorney. However, she was unable to contact him within the hour and a half which she was given.

The following day, Mrs. Sabo was suspended peremptorily for 79 days through July 4, 1977 and terminated as of July 5, 1977 for alleged payroll irregularities of April 16, 1977 and for failure to obey a direct order to co-operate in the departmental investigation by answering questions. The City Civil Service Commission affirmed Mrs. Sabo’s lightning termination and she appealed.

I believe that the Civil Service Commission erred in holding that Mrs. Sabo could be compelled to testify against herself in the departmental investigation and that her failure to do so could result in dismissal. The section of the Louisiana Constitution referred to during Mrs. Sabo’s interrogation is Article 14 § 15, paragraph (P)(l) of the Constitution of 1921. This section was not re-enacted in the Constitution of 1974, even though the legislature re-enacted entire blocks of the 1921 Constitution dealing with civil servants. See Art. 10 § 18, Constitution of 1974 referring to Art. 14 § 15.1, Constitution of 1921. In the absence of an express constitutional grant of such extraordinary power, Art. 14 § 15 of the Constitution of 1921 was repealed by Art. 14 § 17 of the Constitution of 1974, as the prior constitutional provision is now in conflict with Art. 1 § 13 of the Constitution of 1974, which provides as follows:

“Section 13. When any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel. In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him. At each stage of the proceeding, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment. The legislature shall provide for a uniform system for securing and compensating qualified counsel for indigents.”

Having so commented upon the threshold issue, it hardly need be added that the interrogator did not possess the prosecutorial and judicial powers which would allow him to make a binding grant of immunity from criminal prosecution.

Turning now to the second ground for dismissal, the alleged payroll irregularities of April 16,1977,1 believe that the Commission erred in terminating Karen Sabo on these grounds. The alleged payroll irregularities arose from Karen Sabo’s compliance with the inferential, but nonetheless clear order from her supervisor, Sergeant Pittman, who instructed her to use a system known as “compensatory time earned” or “C.U.” Sergeant Pittman testified that Karen Sabo was following his instructions. We note that Karen Sabo was the only N.O.P.D. non-commissioned employee at the pound at the time. We also note that Sabo’s refusal to follow any orders from Sergeant Pittman would also have been ground for termination. Essentially what this entire affair comes down to is that Mrs. Sabo was working in accordance with the orders, whether express or implied, of her commander in the extremely loose operation which he had long since instituted.

In any case, if 20-20 hindsight suddenly was going to be applied to this curiously lax police operation it was the essence of unfairness to single out Mrs. Sabo, its sole civilian employee, and begin it with her.

For the foregoing reasons, I dissent. 
      
      . She wanted her attorney present and was given two hours, but left after one-half hour.
     
      
      . After consulting her attorney.
     
      
      . Referring to adherence of law, truthfulness, punctuality, attendance, devoting entire time to duty, ceasing to perform before end of period of duty, false and inaccurate reports, failure to obey instructions from authoritative source, neglect of duty, disobedience of orders.
     
      
      . Specifically Rule IX, § 1, ¶ 1.1 — Maintaining Standards of Service.
     
      
      .That appellant reported to work late and left early, yet the payroll showed she had worked a full shift plus overtime, and on other occasions, by her own testimony, she was paid for hours she did not work.
     