NOT DESIGNATED FOR PUBLICATION

MAX N. TOBIAS, Jr., Judge.

In this appeal, Officer Ronald White appeals the decision of the Civil Service Commission for the City of New Orleans ("CSC"), denying his appeal of the discipline imposed by the appointing authority, the New Orleans Police Department ("NOPD"). We affirm.

On 8 August 2011, the NOPD issued a disciplinary letter to Office White, stating that it determined that he violated the rules relative to courtesy and professionalism and therefore suspended him for ten days per violation. Specifically, the disciplinary letter stated:

Officer White appealed the suspension to the CSC, which appointed a hearing officer to receive testimony.

At the hearing, NOPD Sergeant Richard Hunter, Jr. stated that he supervised Officer White. He explained that on 21 January 2011, Officer White arrived at Gregory Elementary School ("Gregory") in response to a complaint of a student slamming a door on a teacher's hand. Sergeant Hunter received telephone calls from the principal and Officer White. Sergeant Hunter proceeded to Gregory where he learned that the principal felt that Officer White was disrespectful and had spoken to her in an unprofessional tone. A formal investigation ensued, conducted by Sergeant Hunter. He learned from the principal that at some point in the conversation, Officer White asked her if it was her business that he was interviewing the victim. The principal responded that everything that occurred at the school was her business. Sergeant Hunter noted that the principal had stated that Officer White asked if she was an attorney, and told her that as the principal, she did not know anything. He noted that the principal interjected herself into the investigation that Officer White was attempting to conduct.

Sergeant Hunter also interviewed the dean of students, who stated that he left his office because the exchange between Officer White and the principal became "heated." The sergeant stated that the dean of students also claimed that Officer White was disrespectful to the principal. Sergeant Hunter also spoke with the secretary and the victim. He averred that all of school personnel felt that Officer White acted in a manner that brought discredit to the NOPD. Sergeant Hunter noted that no one he spoke to asserted that Officer White used profanity or vulgar language.

Sergeant Hunter explained that police officers interact with rude civilians on a daily basis. However, he explained that police officers are still required to act professionally. He believed Officer White's intentions, completing the investigation in accordance with the law, were good; however, he found that the exchange between Officer White and the principal became heated. Sergeant Hunter believed that Officer White treated the principal in a discourteous and unprofessional manner. He stated that the unprofessional and discourteous violations arose based more on the tone that was used, and how things were said, than on the actual words used. Sergeant Hunter noted that Officer White had a history of having "heated" exchanges with people on scenes, but no formal discipline had been imposed for that behavior. He noted that Officer White has been more courteous since the discipline was imposed by the NOPD.

Sergeant Hunter averred that discourteousness affects the efficiency of the operation of the NOPD by casting the NOPD in a negative light — that when the NOPD is cast in a negative light, obtaining the cooperation of the public becomes more difficult.

Commander Henry Dean testified that he recommended imposition of the maximum penalty upon Officer White that can be imposed for a first offense for violation of the rules on courtesy and professionalism because he wanted to address Officer White's attitude. He noted that although Officer White had not been formally disciplined in the past, there were previous complaints regarding his attitude. Commander Dean agreed that no more complaints regarding Officer White's attitude had been forthcoming and opined that a police officer should "back off" and let a member of the public vent.

Officer White testified that he had been employed by the NOPD for over twenty years. He noted that he had not been disciplined since the 1990s. He stated that he had previous occasions to go to Gregory, but had never met this particular principal. Officer White averred that he proceeded to investigate a complaint of an eleven-year old student slamming a door on a teacher's hand. Upon arriving at the school, he stated that the principal informed him that the child accused of slamming the door had a history of troubles, and the principal wanted the child arrested on the spot. Officer White asked if the child's parents had been called, explaining to the principal that the child had rights and that the child's parents must be notified, given the age of the child. He stated that the principal still insisted that Officer White arrest the child. Officer White averred that he informed the principal that criminal intent had to be present and that he could not arrest the child if the door was closed by the student by accident.

In furtherance of his investigation, Officer White noted that he asked the victim questions, only to have the principal interject herself into the investigation by answering the questions herself. He stated that he asked for the names of other witnesses, but the principal refused to provide contact information for the witnesses, other than the school telephone number. Officer White stated that he contacted his supervisor, Sergeant Hunter, because the principal refused to allow him to investigate the complaint.

Officer White denied the version of events as told by the principal. He asserted that the exchange did not get "heated," and that he did not speak in a demeaning manner. He acknowledged feeling sluggish from being sick on the day he went to Gregory. Officer White stated his intent was not to be discourteous, noting that he would not talk down to someone with a college education. Officer White testified that he was at Gregory to conduct an investigation, and had no reason to be unprofessional or discourteous.

The hearing officer issued a report recommending that the appeal be granted, finding Officer White's version of the events to be unchallenged and credible. The CSC, on the other hand, noted that Sergeant Hunter interviewed four witnesses to the exchange between Officer White and the principal. The CSC stated that the NOPD thereafter determined that Officer White violated "the rules requiring employees to be, `courteous, civil, and respectful in their conduct towards all persons.'" The Commission denied Officer White's appeal, rejecting their hearing officer's conclusion.

This timely appeal followed.

The CSC has authority to "hear and decide" disciplinary cases, which includes the authority to modify (reduce) as well as to reverse or affirm a penalty. La. Const. art. X, §12; Pope v. New Orleans Police Dept., 04-1888, p.5 (La. App. 4 Cir. 4/20/05), 903 So.2d 1, 4. The appointing authority is charged with the operation of its department, and it is within its discretion to discipline an employee for sufficient cause. The CSC is not charged with such discipline. The authority to reduce a penalty can only be exercised if there is insufficient cause for imposing the greater penalty. Pope, pp.5-6, 903 So.2d at 4.

The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Cure v. Dept. of Police, 07-0166, p.2 (La. App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094; Marziale v. Dept. of Police, 06-0459, p.10 (La. App. 4 Cir. 11/8/06), 944 So.2d 760, 767. The protection of civil service employees is only against termination or other discipline without cause. La. Const. art. X, §12; Cornelius v. Dept. of Police, 07-1257, p.8 (La. App. 4 Cir. 3/19/08), 981 So.2d 720, 724; Fihlman v. New Orleans Police Dept., 00-2360, p.5 (La. App. 4 Cir. 10/31/01), 797 So.2d 783, 787.

The decision of the CSC is subject to review on any question of law or fact upon appeal to this court; this court reviews findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const. art. X, §12; Cure, p.2, 964 So.2d at 1094. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, we do not modify a CSC order unless it is arbitrary, capricious, or characterized by an abuse of discretion. Id. A decision of the CSC is "arbitrary and capricious" if there is no rational basis for the action taken by the CSC. Cure, p.2, 964 So.2d at 1095.

On appeal, Officer White assigned two errors. He averred that the CSC erred in finding that (1) the NOPD possessed legal cause to impose discipline and (2) the penalty was commensurate with the offense.

In support of his argument that the CSC erred in finding legal cause, Officer White points to the disciplinary letter itself. He notes that the disciplinary letter concludes that he used profane and vulgar language; he points to Sergeant Hunter's testimony that not one of the four school employees stated that he used profane or vulgar language. We agree that the record does not show that Officer White used profane or vulgar language.

The NOPD bore the burden of proving the charges outlined in the disciplinary letter. "The purpose of requiring the specific description of the conduct which the appointing authority deems deserving of disciplinary action is to permit the employee to know precisely which conduct he or she must defend before the Commission." Evangelist v. Dept. of Police, 08-1375, p.7 (La. App. 4 Cir. 2/24/10), 32 So.3d 815, 839 (on rehearing).

In this case, the disciplinary letter determined that Officer White utilized profanity and vulgar language. However, the disciplinary letter also charged that Officer White engaged in an argument, and violated the rule regarding courtesy. That rule provides in pertinent part that, "[e]mployees shall be courteous, civil and respectful in their conduct toward all persons. The use of profane, vulgar or discourteous gestures or language to or in the presence of any citizen is prohibited." Rule 2, Moral Conduct, paragraph 2, Courtesy. Thus, the disciplinary served its purpose of notifying Officer White precisely what conduct he had to defend before the Commission.1

The NOPD presented the testimony of Sergeant Hunter, who interviewed four witnesses that all stated that Officer White was disrespectful during his exchange with the principal. The dean of students heard the exchange in his office, and felt it necessary to see if the principal required assistance. Officer White asked the principal if it was her business that he was interviewing the victim. Officer White also asked the principal if she was an attorney. Both questions sound in sarcasm and mocking. Thus, the record before us contains evidence that Officer White was discourteous, uncivil, and disrespectful to a citizen. A rational basis exists for the decision of the CSC denying Officer White's appeal with respect to the charge of violating the rule relative to courtesy. Thus, as to the charge of violating the rule relative to courtesy, the decision of the CSC is not arbitrary and/or capricious.

In addition to alleging that Officer White utilized profane and vulgar language, the disciplinary letter also stated that, "[y]our demeanor and what you said was unprofessional and, you did not conduct yourself with the utmost concern for the dignity of the individual with whom you were interacting." The rule relative to professionalism provides that, "[e]mployees shall conduct themselves in a professional manner with the utmost concern for the dignity of the individual with whom they are interacting. Employees shall not unnecessarily inconvenience or demean any individual." Rule 3, Professional Conduct, paragraph 1, Professionalism.

Supporting the claim that Officer White violated the rule on professionalism, the NOPD presented the testimony of Sergeant Hunter, who had interviewed the principal and three witnesses to the verbal exchange. Sergeant Hunter testified that the principal and the dean of students stated that the exchange became "heated." He stated that Officer White should not have interacted with the principal in a "heated" exchange. Sergeant Hunter averred that all the school personnel felt that Officer White acted in a manner which brought discredit to the NOPD. Contrariwise, Officer White argued that he did not engage in a "heated" exchange. Rather, Officer White concluded that he "backed off", as Commander Dean testified an officer should sometimes do, and contacted his supervisor when he did not make any progress with the principal. Considering that both the principal and the dean of students stated that the exchange became heated, the NOPD proved the charge in the disciplinary letter relative to professionalism. The record contains testimony that Officer White failed to conduct himself with the utmost concern for the dignity of the principal with whom he was interacting. A rational basis exists for the decision of the CSC denying Officer White's appeal with respect to the charge of violating the rule relative to professionalism.

As to his second assignment of error, Officer White argued that the punishment imposed was not commensurate with the offense. He averred that the suspension was imposed for what the principal called a "difference of opinion." He further suggested that the school personnel were upset with the NOPD's response time. We have already determined that the record contains testimony that the exchange between Officer White and the principal was "heated." While Officer White testified that the school personnel were not happy with the response time, he also stated that they were more upset with the student than Officer White.

Additionally, Officer White argued that the ten-day penalty is the maximum allowed under the penalty schedule utilized by the NOPD for a first offense violation for both the rules on courtesy and professionalism. Sergeant Hunter testified that Officer White has previously engaged in "heated" exchanges when he had been on a scene responding to a complaint. Commander Dean also stated that Officer White had a previous history with an attitude problem. Both the sergeant and commander acknowledged that Officer White was not formally charged in the previous incidents. Commander Dean testified that he wanted to address Officer White's attitude, and he wanted to get Officer White's attention. Commander Dean acknowledged that although Officer White was a good officer, he felt Officer White had to do better as a police officer. Considering the testimony of Sergeant Hunter and Commander Dean, and the fact that a ten-day suspension is allowed for a first offense violation, we cannot say that the ten-day suspension is not commensurate with the violation of the rules relative to courtesy and professionalism in this instance.2

Accordingly, we affirm the decision of the CSC denying Officer White's appeal.

AFFIRMED.

BONIN, J., DISSENTS WITH REASONS.

I respectfully dissent.

The appointing authority did not prove that with which it charged Mr. White: using profane and vulgar language in an argument with the school principal; we cannot uphold the Commission's decision because a violation occurred through other, uncharged conduct. See Evangelist v. Dept. of Police, 08-1375 (La. App. 4 Cir. 9/16/09), 32 So.3d 815, 838-839 (on r'hrg) ("A civil service employee cannot be charged with conduct specifically described in the written charge and then be expected, much less required, to defend conduct which was not described or conduct which is different from that which was described.")