Breach In Time Frame For Completing Investigation Does Not Necessarily Mandate Dismissal Of Disciplinary Charges

Sergeant William Marks of the New Orleans Police Department was terminated for an incident which occurred on November 1 and 2, 2002. On those days, Marks left New Orleans in an unmarked police vehicle assigned to another officer under his command. He took the vehicle out of state without permission and traveled to Wisconsin to pick up his girlfriend. Upon arrival, he picked up his girlfriend and her friend. On the return trip, he was stopped for speeding by an Illinois State Police Officer. A traffic citation was issued.

Following this incident, the New Orleans Police Department accused Marks of several violations, including failure to adhere to the law, untruthfulness, lack of professionalism, abuse of position, transporting citizens, immoral conduct, failure to perform duties, and abuse of power for not reporting the incident to the Police Department and for asking the Illinois trooper not to report the incident.

A Louisiana statute requires that police disciplinary actions be completed within 60 days. Though the City’s investigation lasted longer than 60 days, it nonetheless terminated Marks. Marks challenged the termination, contending that the breach of the time limits in the statute mandated the dismissal of the disciplinary proceedings.

Reversing a prior decision it had issued on the matter, the Louisiana Supreme Court held that a breach of the statute did not automatically require the dismissal of disciplinary charges. Rather, the Court concluded, the assessment of whether dismissal of the disciplinary charges was the appropriate remedy should be made on a case-by-case basis.

The Court found that “the fact that the Legislature did not include a penalty in the statute for non-compliance with the 60-day period is significant. Certainly, the statute does not provide, nor suggest, that the remedy for non-compliance with the 60-day period is dismissal of the disciplinary action.

“During Marks’ appeal, the Civil Service Commission properly remanded this matter to the Hearing Examiner to determine whether the Police Department’s failure to complete the investigation within the 60 days allotted had a prejudicial effect on Marks. Following a hearing, it was determined that Marks had not been prejudiced in preparing or presenting a defense to the charges filed against him. Taking these facts into consideration, the Commission concluded the Department had proven its case against Marks.

“We find the failure to comply with the statutory 60-day time period does not require summary dismissal of a disciplinary action. We do find evidence of failure to comply with the 60-day period is relevant as to whether the appellant is prejudiced by that failure. A failure to comply with the 60-day time period may impact whether discipline should be imposed or the type of discipline imposed if prejudice to the officer is demonstrated due to the delay. The Civil Service Commission properly remanded this matter to the Hearing Examiner to determine whether the failure to comply with the 60-day period prejudiced Marks. It was determined he was not prejudiced.”

Marks v. New Orleans Police Department, 2006 WL 3423200 (La. 2006).

This article appears in the January 2007 issue