August 14, 1995
Dear Human Resource Professionals,
This is a newsletter that I have been thinking about doing for sometime. The Civil Service
Commission and its Referees periodically issue opinions resolving interesting issues, and, also,
the resolution of issues within the Department of State Civil Service can be of interest. I have
often thought that calling attention to those decisions and those resolutions via a newsletter
would be a worthwhile endeavor. I hope you do as well. I am very much interested in your
feedback on the concept of a periodic newsletter, as well as any topics that you might like to see
covered. In this newsletter, I would like to address one decision of the Civil Service
Commission that regards emergency suspensions.
Prior to August 5, 1992, an appointing authority could suspend an employee pending
investigation without pay for up to ninety (90) calendar days. There was a great deal of concern
here that such a provision in Civil Service Rules allowed the contravention of an employee's
rights without an overriding governmental interest, and, also, there was often abuse of the
authority granted by that rule. That is, the suspension for as long as ninety (90) days without pay
is certainly much more than a minimal interference with the employee's right to his job, and it
could be done on a mere suspicion. Further, it was found that without an incentive to bring an
investigation to a quick conclusion, investigations almost always lasted the full ninety (90) days.
This concept was changed in the revision of Chapter 12.
Effective August 5, 1992, suspensions pending investigations must be with pay, and must be
concluded within thirty (30) days unless prior approval is obtained from the Director for one
additional thirty (30) day period. See Rule 12.10. A suspension pending investigation does not
deprive an employee of a property right, and may be done verbally. When the investigation is
completed, both the employee and the Director of the Department of Civil Service must be
advised of the outcome.
The revision of Chapter 12 in 1992 also provided for a new concept called an emergency
suspension. The right of an appointing authority to utilize an emergency suspension is granted
by Rule 12.4 which reads as follows:
"An employee may be verbally suspended without pay when his continued presence at
work would pose a significant hazard to health, safety or the efficiency of the public service. The
employee shall be told that he is being suspended and the reasons therefore and, when feasible,
shall be given an opportunity to respond."
The emergency suspension must be confirmed in writing within fifteen (15) days. See Rule
12.8(b).
Unfortunately, we are beginning to see abuse of the emergency suspension rule. The abuse
generally takes two forms: 1) the agency uses the emergency suspension without pay as a
substitute for a suspension pending investigation with pay when it merely suspects an employee
of misconduct, or 2) the agency uses the emergency suspension when there is known misconduct,
but no emergency. Neither of these situations justifies an emergency suspension. The purpose
of the emergency suspension rule is to deal with a truly short-term emergency situation. The
Commission recently had an opportunity to address this issue.
In the Appeal of Perrot, Docket Number 10424, the appointing authority first
suspended appellant pending investigation. This suspension, of course, was with pay. The
appointing authority requested permission to extend the suspension pending investigation for
another thirty (30) days, but permission was denied because there was nothing in the agency's
request to indicate why the employee's continued presence at work would be contrary to the best
interests of the state service. The appointing authority, however, then effected an emergency
suspension without pay against the appellant. The appellant appealed this emergency suspension
and the Referee granted the appeal finding that the appointing authority had violated Rule 12.4 in
that it had failed to give the employee an opportunity to be heard prior to the emergency
suspension, and it failed to show why it was not feasible to provide this opportunity.
Before receiving the Referee's decision, the appointing authority terminated the appellant for the
same cause given to support the emergency suspension. This matter was appealed and the
Referee found that because the appellant was on emergency suspension, he could not be
terminated for the same reasons given to support the emergency suspension. The Referee
granted the appeal.
The appointing authority filed an application for review, and the Civil Service Commission in an
opinion issued June 15, 1995 held that Rule 12.4 on emergency suspensions was not adopted to
constitute a final disciplinary action, but only as a tool for use by an appointing authority in an
emergency situation pending further action, if any, against an employee. The Commission stated
that:
"We enacted that rule to allow an appointing authority to immediately remove from the
work place an employee who presents an immediate risk of physical harm to others or immediate
risk of direct disruption of the work place. It is to be used only in truly emergency
That is, the authority granted by that rule is very narrow. Once the emergency is over, the
authority to place an employee on emergency suspension without pay is also over. For example,
if an employee comes to work drunk and disruptive, that employee may be sent home for the day
on an emergency suspension without pay. However, the emergency is over when the employee
sobers up. Consequently, an emergency suspension cannot be used to prevent the employee from
reporting to work sober on the following day. If the appointing authority desires to keep the
employee away from the work place while it investigates exactly what course of action to take
against the employee, if any, an appointing authority may utilize a suspension pending
investigation with pay. That is, the use of a suspension pending investigation with pay for the
purpose of determining exactly what action, if any, is to be taken against the employee is a
proper use of a suspension pending investigation.
Continuing with the Perrot saga, the Commission cited a First Circuit Court
of Appeal decision, James 489 So.2d 1308 (La. App., 1st Cir., 1986) in which
the Court of Appeal recognized that an employee who was suspended for four days and then
subsequently terminated for the same reason cited to support the four day suspension was not
being subjected to separate disciplinary actions based on the same cause as, according to the
Court of Appeal, "at no time prior to his termination was James given reason to believe
that the incident was concluded." Further in James, the Court of
Appeal noted that "in fact, the letter notifying him of his suspension specifically indicated
the possibility of future disciplinary action." The Commission noted that the same facts
existed in Perrot, reversed the decision of the Referee, and remanded the
matter to the Referee for a hearing on the merits of the termination.
In summary, an emergency suspension may only be used in very limited circumstances, and
while requiring confirmation in writing, is not a terminal action in itself. That is, the same cause
supporting the emergency suspension may be used to support a final disciplinary action. The
letter confirming the emergency suspension should tell the employee that further action based
upon the incident may be forthcoming. Further, it is the view here that a suspension pending
investigation is a viable tool for allowing time to determine exactly what to do with an employee.
In practice, an appointing authority may desire to utilize a suspension pending investigation
initially instead of an emergency suspension. One warning here, of course, is that both an
emergency suspension and a suspension pending investigation must be taken by one with
appointing authority, whether statutory or delegated authority.
Please tell me whether you like this idea of a periodic newsletter, and, if you do, please tell me of
any issues that you would like to have discussed in the newsletter in the future.
Sincerely,
Robert R. Boland, Jr.
situations requiring immediate action."
General Counsel