Opinion Number

You have asked this office to advise when an investigation begins under the police officer's bill of rights, R.S. 40:2531, and under the statutes governing fire employee's rights, R.S. 33:2181, et seq. The cited statutes pertain to the rights of law enforcement officers and fire employees under investigation; these statutes pertinently provide in R.S. 40:2531 and R.S. 33:2186:

2531. Applicability; minimum standards during investigation

A. The provisions of this Chapter shall only apply to those law enforcement officers employed by any municipality and campus police employed at any state-supported college or university who are under investigation with a view to possible disciplinary action, demotion, or dismissal.

B. Whenever a law enforcement officer is under investigation, the following minimum standards shall apply:

* * * * *

(7) Except as otherwise provided in this Paragraph, each investigation of a law enforcement officer which is conducted under the provisions of this Chapter shall be completed within sixty days. . . .

* * * * *

2186. Investigations

A. Any investigation of a fire employee which is conducted pursuant to this Subpart shall be completed within sixty days. . . .

Both statutes contemplate that the investigations apply to those law enforcement personnel and fire employees who are "under investigation with a view to possible disciplinary action, demotion, or dismissal". See R.S. 33:2181(A) and R.S. 40:2531 (A).

In Attorney General Opinion 93-52, copy attached, the author addressed the issue when an investigation begins, stating:

LSA-R.S. 40:2531 does not specifically provide for a definition of "investigation." However, Black's Law Dictionary defines the term as the process of inquiring into or tracing down through inquiry. Black's further defines the term "investigate" as follows:

"To follow up step by step by patient inquiry or observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry".

From this definition, it is our opinion that if the investigation requires a close study or systematic inquiry into a situation, the protections afforded an officer under LSA-R.S. 40:2531 apply. Moreover, one must not overlook the express language of the statute. The term "investigation" is modified by the phrase "with a view to possible disciplinary action, demotion, or dismissal." Therefore, if any of the three results are possible, then the officer is afforded the protections of LSA-R.S. 40:2531.

Our interpretation of both R.S. 40:2531 and R.S. 33:2186 reflects then an investigation begins when an authorized person begins to make inquiry or collect evidence concerning a situation with an officer where the end result is "with a view to possible disciplinary action, demotion, or dismissal." In accord are Attorney General Opinions 04-180 and 03-0095, copies attached.

We note that neither R.S. 40:2531 nor R.S. 33:2181 states that the remedy for non-compliance with the sixty-day period is dismissal of the disciplinary action. This omission by the legislature was found significant by the Louisiana Supreme Court in the case of Marks v. NewOrleans Police Department, 943 So.2d 1028 (La. 2006). At issue in Marks was the effect of the failure of the police department to comply with the statutory sixty-day time period required by R.S. 40:2531 for conducting an investigation of a law enforcement officer.

After reviewing the statute, the Supreme Court found that "the fact that the legislature did not include a penalty in the statute for non-compliance with the sixty-day period to be more "significant" than whether the statute required a mandatory or directory interpretation. Marks, supra, at page 1035. The Supreme Court concluded:

The sixty-day period provided in the statute aspires to serve the interests of the accused officer, the police department, and the public. An officer wrongfully accused should be exonerated promptly. A police officer who engages in inappropriate conduct is an aberration and should be disciplined promptly. The statute provides a time frame within which to complete the investigation, but does not provide a penalty for failure to do so. . . . .we defer to the legislature and decline to impose the Draconian penalty of summary dismissal of the disciplinary action where no penalty is provided in the statute and no prejudice is demonstrated due to the delay.

In dicta, the court noted "nevertheless, our ruling should not be construed as sanctioning delays, especially since the statute provides for a procedure to seek an extension for conducting an investigation. A delay beyond the statutorily established sixty-day period which unfairly prejudices the officer may well implicate the due process clause". SeeMarks, supra, at footnote 8.

We attach a copy of the Marks decision for your further review. Note also the recent case of Boutte v. Department of Police, 950 So.2d 861 (La.App. 4^th Cir. 2007). Therein, the investigation of a police officer was assigned to the Public Integrity Bureau on September 21, 2005. His disciplinary hearing was not held until December 6, 2005. He appealed to the Civil Service Commission on January 10, 2006, contending, among other things, that the investigatory process took over sixty days in contravention of R.S. 40:2531(B)(7). While the court found R.S. 40:2531 inapplicable to this police officer because he was a probationary and not a regular employee, the court also cited Marks, stating "we note that the Louisiana Supreme Court has just ruled that the sixty-day limit prescribed by the R.S. 40:2531 is not mandatory; it is merely directory."

We hope the foregoing is helpful to you. Should you have other questions in which we may provide assistance, please contact this office.

Very truly yours,

CHARLES C. FOTI, JR.

ATTORNEY GENERAL

BY:__________________________

KERRY L. KILPATRICK

ASSISTANT ATTORNEY GENERAL KLK:arg

ATTACHMENT OPINION NUMBER 93-52 APRIL 30, 1993 Lt. Larry Martin Commander, Internal Affairs Division P.O. Box 1581 Monroe, LA 71210-1581

59 LAW OFFICERS-Authority and Jurisdiction LSA R.S. 40:2531

Discusses applicability of LSA-R.S. 40:2531 to municipal law enforcement officers.

Dear Lt. Martin:

This office is in receipt of your opinion request directed to Attorney General Richard P. Ieyoub. The request has been assigned to me for resolution. We restate and respond to your questions in the order presented in your correspondence.

(1) Does LSA-R.S. 40:2531, entitled Rights of Law Enforcement Officers, apply under all circumstances to a police officer?

(2) What is the legal definition of "law enforcement officers" as used in LSA-R.S. 40:2531? Would this include civil service jailers, radio operators and clerks?

(3) What is the legal definition of "investigation" as used in LSA-R.S. 40:2531?

(4) What is the legal definition of "possible disciplinary action" as used in LSA-R.S. 40:2531?

(5) If LSA-R.S. 40:2531 applies to any disciplinary action toward any officer, will it be incumbent on the Monroe Police Department to follow the six (6) mandated standards at all times?

At the outset, we quote LSA-R.S. 40:2531 in its entirety.

A. The provisions of this Chapter shall only apply to those law enforcement officers employed by any municipality and campus police employed at any state-supported college or university who are under investigation with a view to possible disciplinary action, demotion, or dismissal. (Emphasis Added).

B. Whenever a law enforcement officer is under investigation, the following minimum standards shall apply:

(1) The law enforcement officer being investigated shall be informed, at the commencement of interrogation, of the nature of the investigation and the identity and authority of the person conducting such investigation, and at the commencement of any interrogation, such officer shall be informed as to the identity of all persons present during such interrogation. The law enforcement officer shall be allowed to make notes.

(2) Any interrogation of a law enforcement officer in connection with an investigation shall be for a reasonable period of time, and shall allow for reasonable periods for the rest and personal necessities of such law enforcement officer.

(3) All interrogations of any law enforcement officer in connection with the investigation shall be recorded in full. The law enforcement officer shall not be prohibited from obtaining a copy of the recording or transcript of the recording of his statements upon his written request.

(4) The law enforcement officer shall be entitled to the presence of his counsel or representative, or both, at the interrogation in connection with the investigation.

(5) No statement made by the officer during the course of an administrative investigation shall be admissible in a criminal proceeding.

(6) The counsel called by the law enforcement officer under investigation may call witnesses to testify on his behalf.

QUESTIONS (1) and (2) The statute in question, LSA-R.S. 40:2531 provides no guidance as to the definitions you seek. However, it has been the past conclusion of this office that an individual's identity as a "law enforcement officer" is determined from that person's function and authority.

Because the term "law enforcement officer" is not defined in LSA-R.S.40:2531, we must look to other revised statutes in order to create a definition appropriate to this statute. LSA-R.S. 40:2401, et. seq., establishes the Peace Officer Standards and Training Law. In its definitional section, LSA-R.S. 40:2402(1)(a), the term "peace officer" is defined as follows:

As used in this Chapter:

(1)(a) "Peace officer" means any full-time employee of the state, a municipality, a sheriff, or other public agency, whose permanent duties actually include the making of arrests, the performing of searches and seizures, or the execution of criminal warrants, and is responsible for the prevention or detection of crime or for the enforcement of the penal, traffic, or highway laws of this state. . . .

It is our opinion that although this definition gives some guidance, the definition does not fit precisely as applied to LSA-R.S. 40:2531 because the definition in LSA-R.S. 40:2402 includes "state policemen" and "full-time employees of the state," whereas LSA-R.S. 40:2531 is specifically limited to law enforcement officers "employed by any municipality". It is suggested that legislative amendment to LSA-R.S.40:2531 specifically defining "law enforcement officer" is necessary to cure any ambiguity in this regard.

For the purpose of responding to your inquiries, we note city police officers are "law enforcement officers" within the meaning of the statute. More problematic is whether civil service jailers, radio operators, and clerks fall within the ambit of the statute. Because a jailer's duties include the care, custody, and control of inmates, it is has been our past opinion that a jailer falls within the term "law enforcement officer employed by any municipality." We continue to adhere to this conclusion. See Attorney General Opinion Number 90-601 and 91-557, enclosed.

However, we are of the opinion that radio operators and clerks would not fall within the ambit of the definition of "law enforcement officer", unless these individuals have similar authority to make arrests, issue criminal warrants, effectuate seizures, etc. Finally, LSA-R.S. 40:2531 applies only to "law enforcement officers" who are under "investigation" as defined below.

QUESTION (3) LSA-R.S. 40:2531 does not specifically provide for a definition of "investigation." However, Black's Law Dictionary defines the term as the process of inquiring into or tracking down through inquiry. Black's further defines the term "investigate" as follows:

"To follow up step by step by patient inquiry or observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry."

From this definition, it is our opinion that if the investigation requires a close study or systematic inquiry into a situation, the protections afforded an officer under LSA-R.S. 40:2531 apply. Moreover, one must not overlook the express language of the statute. The term "investigation" is modified by the phrase "with a view to possible disciplinary action, demotion, or dismissal." Therefore, if any of the three results are possible, then the officer is afforded the protections of LSA-R.S. 40:2531.

QUESTION (4) The term "possible disciplinary action" should be construed broadly so that the purpose of protecting officers under investigation is made effective to the fullest extent possible under the language of LSA-R.S.40:2531. Because "disciplinary action" is used in the same phrase as "demotion" and "dismissal," it is our opinion that any action taken by formal investigating authorities, such as the municipal international affairs department, which could possibly affect the job status of the officer requires that the minimum standards of LSA-R.S. 40:2531 apply. QUESTION (5) The statute will apply, and thus mandate applying all six standards of LSA-R.S. 40:2531, whenever any law enforcement officer is under investigation, the result of which is possible disciplinary action, demotion, or dismissal. It is significant to point out that the statute refers to the officer who is "under investigation," requiring that the officer be the subject of the investigation, consequences punishable by demotion, dismissal or disciplinary action.

Please note the opinions of this office are not binding, but are persuasive authority only. Finally, we enclose copies of previous Attorney General Opinion Numbers 90-601 and 91-557, which may prove of interest to you.

Very truly yours,

RICHARD P. IEYOUB

Attorney General

BY:__________________________

Kerry L. Kilpatrick

Assistant Attorney General

RPI/KLK/0240E

ATTACHMENT June 3, 2007. OPINION 04-180 Senator Donald R. Cravins District 24 P.O. Box 94183 Baton Rouge, LA 70804

47-A-1 Fire Protection Districts R.S. 33:2181

Any firefighter under disciplinary investigation has a right to protection of an attorney at the interrogation stage.

Dear Senator Cravins:

We are in receipt of your request for an opinion in regard to administration of Firefighter's Bill of Rights insofar as representation during the interrogation stage of a disciplinary investigation.

You point out that "firefighters and other civil service protected public employees are constituionally entitled to a right to notice and opportunity to be heard at a meaningful time and manner before being terminated or disciplined for an alleged workplace infraction." You feel that the pre-disciplinary hearing is a critical stage of the investigation in that the employee is given the opportunity to convince the appointing authority that a mistake was made or that mitgating factors are present

You note in accordance with the Firefighters' Bill of Rights that R.S.33:2181(B) states that whenever ``a fire employee is under investigation' certain minimum standards shall apply, and those standards include advance notice of the nature of the investigation, the identity of the investigators and observers during any interrogation, limitations on interrogation techniques such as right to rest periods, and the right to presence of his or her counsel or other representative, or both "at the interrogation in connection with the investigation."

You relate that some fire departments contend that the language "at the interrogation" allowing the right to counsel excludes the pre-disciplinary hearing or conference since, in their view, the interrogation stage is over and the employee is merely presenting his or her side of the story.

However, you point out there is typically a full exchange of information at such hearings, and the employee is typically called upon to answer tough questions, which in your view "it is still ``interrogation' or a culmination in the investigatory process of interrogation and other fact-finding measures."

In this regard you ask, "Therefore, at what stage or step in the process does a firefighters' right to representation arise?"

In Atty. Gen. Op. 93-52 this office observed that the protection afforded an officer under R.S. 40:2531 in an "investigation' is modified by the phrase "with a view to possible disciplinary action, demotion, or dismissal", and it was concluded if any of these three results are possible, that the officer is afforded the protections of the statute. The statute was quoted and included in Section B(4), "The law enforcement officer shall be entitled to the presence of his counsel or representative, or both, at the interrogation in connection with the investigation."

It was further stated the term "possible disciplinary action" should be construed broadly so that the purpose of protecting officers under investigation is made effective to the fullest extent possible under the language of the statute.

We find with regard to the Fire Employee's Rights under R.S. 33:2181 it applies to a fire employee "who is under investigation with a view to possible disciplinary action, demotion, or dismissal"; and continues with similar provision as R.S. 40:2531 and includes "the fire employee shall be entitled to the presence of his or her counsel or representative, or both, at the interrogation in connection with the investigation."

Consequently, following the reasoning in Atty. Gen. Op. 93-52 we would conclude as stated therein that any action taken by formal investigation authorities which could possibly affect the job status "requires that the minimum standards" of the statute apply, and we would conclude the firefighter is afforded protection of an attorney.

We hope this sufficiently answers your request, but if we can be of further assistance, do not hesitate to contact us.

Very truly yours,

CHARLES C. FOTI, JR.

ATTORNEY GENERAL

BY:__________________________

BARBARA B. RUTLEDGE

ASSISTANT ATTORNEY GENERAL

CCF/bbr

ATTACHMENT May 1, 2003. OPINION 03-0095 Honorable Ruth Fontenot Mayor 457 E Main Street, Suite 300 New Iberia, La 70560-3700

59 LAW OFFICERS — Authority Jurisdiction R.S. 40:2531; R.S.40:2531(B)(7)

Discusses the municipal law enforcement officers' bill of rights when a law enforcement officer is under investigation with a view to possible disciplinary action, demotion, or dismissal.

Dear Mayor Fontenot:

You have several questions concerning the police officer's bill of rights, R.S. 40:2531. This statute pertains to the rights of a law enforcement officer under investigation. Of particular interest are the following provisions of the statute:

§ 2531. Applicability; minimum standards during investigation

A. The provisions of this Chapter shall only apply to those law enforcement officers employed by any municipality and campus police employed at any state-supported college or university who are under investigation with a view to possible disciplinary action, demotion, or dismissal.

B. Whenever a law enforcement officer is under investigation, the following minimum standards shall apply:

* * * * *

(7) Except as otherwise provided in this Paragraph, each investigation of a law enforcement officer which is conducted under the provisions of this Chapter shall be completed within sixty days. However, in each municipality which is subject to a Municipal Fire and Police Civil Service law, the municipal police department may petition the Municipal Fire and Police Civil Service Board for an extension of the time within which to complete the investigation. The board shall set the matter for hearing and shall provide notice of the hearing to the officer who is under investigation. The officer who is under investigation shall have the right to attend the hearing and to present evidence and arguments against the extension. If the board finds that the municipal police department has shown good cause for the granting of an extension of time within which to complete the investigation, the board shall grant an extension of up to sixty days. Nothing contained in this Paragraph shall be construed to prohibit the law enforcement officer under investigation and the appointing authority from entering into a written agreement extending the investigation for up to an additional sixty days. Further, nothing in this Paragraph shall limit any investigation of alleged criminal activity. (Emphasis added).

We rephrase your questions as stated in your letter to this office.

Question 1 At what point does an investigation begin?

Attorney General Opinion 93-52 proves helpful in answering your first question. We quote the author of that opinion:

LSA-R.S. 40:2531 does not specifically provide for a definition of "investigation." However, Black's Law Dictionary defines the term as the process of inquiring into or tracking down through inquiry. Black's further defines the term "investigate" as follows:

"To follow up step by step by patient inquiry or observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry."

From this definition, it is our opinion that if the investigation requires a close study or systematic inquiry into a situation, the protections afforded an officer under LSA-R.S. 40:2531 apply. Moreover, one must not overlook the express language of the statute. The term "investigation" is modified by the phrase "with a view to possible disciplinary action, demotion, or dismissal." Therefore, if any of the three results are possible, then the officer is afforded the protections of LSA-R.S. 40:2531.

In accord with Opinion 93-52, our interpretation of R.S. 40:2531 reflects that an investigation begins when an authorized person begins to make inquiry or collect evidence concerning a situation with an officer where the end result is "with a view to possible disciplinary action, demotion, or dismissal."

Question 2 When is the investigation complete?

In our opinion, the purpose of the investigation is to collect evidence concerning the complaint, and must be completed within the statutorily mandated sixty days. After the gathering of evidence is completed, and before the officer may be discharged, "he is entitled to oral or written notice of the charges against him, an explanation of his employer's evidence, and an opportunity to present his side of the story. . . Thus, due process requires, at a minimum, some type of a pre-termination hearing before a tenured employee is discharged." See Knight vs. Department of Police, 619 So. 2d 1116 (La.App. 4^th Cir 1993), at page 572.

Question 3

What is the consequence for failure to complete the investigation within sixty days?

R.S. 40:2531 is silent regarding any consequence for failure to complete the investigation within sixty days. However, we find it a logical inference that the investigation may not be "restarted" once the sixty days have passed as this action would invalidate the purpose of a time limitation. The statute does permit an additional sixty days for the municipal police department to complete the investigation if granted by the municipal civil service board at a hearing. Finally, R.S. 40:2531 (B)(7) states that there is no time limitation on any investigation of alleged criminal activity.

We hope the foregoing is helpful to you. Should you have other questions in which we may provide assistance, please contact this office.

Very truly yours,

BY:__________________________

RICHARD P. IEYOUB

ATTORNEY GENERAL

Kerry l. Kilpatrick

assistant attorney general

KLK:ams

ATTACHMENT 943 So.2d 1028 943 So.2d 1028, 153 Lab.Cas.P 60,313,25 IER Cases 1339, 2006-0575 (La. 11/29/06) (Cite as: 943 So.2d 1028, 2006-0575 (La. 11/29/06)) William MARKS v. NEW ORLEANS POLICE DEPARTMENT. 2006-C-0575 Nov. 29, 2006. Background: Police officer, who was suspended and terminated for misconduct beyond the 60-day statutory period for conducting an investigation, appealed. The city civil service commission upheld suspension and termination. Police officer appealed. The Court of Appeal, Max N. Tobias, Jr., J., 925 So.2d 622, reversed. Police department sought writ of certiorari.

Holdings: The Supreme Court, Weimer, J., held that:

(1) failure of police department to comply with statutory 60-day time period for conducting an investigation of officer did not require summary dismissal of disciplinary action, abrogating Davis v. NewOrleans Police Department, 899 So.2d 37, and Dunn v. New Orleans PoliceDepartment, 938 So.2d 217, and

(2) officer's due process rights were not violated.

Judgment of Court of Appeal reversed and remanded.

West Headnotes

[1] Municipal Corporations 185(12)

268k185(12) Most Cited Cases Constitutionality of statute providing 60-day period for conducting an investigation of a law enforcement officer, which was raised on appeal from decision of city civil service commission upholding officer's termination for misconduct, by the commission, as amicus, was not properly before Supreme Court, where issue of statute's constitutionality was not raised below. LSA-R.S.40:2531(B)(7).

[2] Municipal Corporations 185(3)

268k185(3) Most Cited Cases Failure of police department to comply with statutory 60-day time period for conducting an investigation of a law enforcement officer did not require summary dismissal of disciplinary action, where officer was not prejudiced in preparing or presenting a defense to the charges filed against him; abrogating Davis v. New OrleansPolice Department, 899 So.2d 37, and Dunn v. New Orleans PoliceDepartment, 938 So.2d 217. LSA-R.S. 40:2531(B)(7).

[3] Statutes 227

361k227 Most Cited Cases

If the terms of a statute are limited to what is required to be done, i.e., procedural rules, then the statute is considered directory even though mandatory language is employed.

[4] Statutes 227

361k227 Most Cited Cases

Statutory provisions designed to secure order, system, and dispatch by guiding the discharge of duties are usually construed as directory even if worded in the imperative.

[5] Municipal Corporations 185(3)

268k185(3) Most Cited Cases

Statute providing 60-day time period for conducting an investigation of a law enforcement officer does not establish a penalty for noncompliance and, in the absence of prejudice, court cannot supply a penalty. LSA-R.S. 40:2531(B)(7).

[6] Constitutional Law 278.4(5)

92k278.4(5) Most Cited Cases

[6] Municipal Corporations 185(3)

268k185(3) Most Cited Cases

Police officer's due process rights were not violated by failure of police department to complete investigation of officer within statutorily allowed 60-day time frame; officer was provided notice and an opportunity to be heard on issue of the delay in completing the investigation prior to being subjected to discipline. U.S.C.A. Const. Amend. 14; LSA-R.S.40: 2531(B)(7).

[7] Constitutional Law 252.5

92k252.5 Most Cited Cases

The essential requirements of due process are notice and an opportunity to respond before one is deprived of a vested right. U.S.C.A. Const. Amend. 14.

[8] Constitutional Law 251.1

92k251.1 Most Cited Cases

Due process is an elusive concept; its exact boundaries are undefinable, and its content varies according to specific factual contexts. U.S.C.A. Const. Amend. 14.

[9] Municipal Corporations 185(3)

268k185(3) Most Cited Cases A failure to comply with statutory 60-day time period for conducting an investigation of a law enforcement officer may impact whether discipline should be imposed or the type of discipline imposed if prejudice to the officer is demonstrated due to the delay. LSA-R.S. 40:2531(B)(7).

*1029 Penya M. Moses-Fields, City Attorney, Joseph V. DiRosa, Jr., Chief Deputy City Attorney, James B. Mullaly, Heather M. Valliant, Assistant City Attorneys, for Applicant.

Eric J. Hessler, for Respondent.

Claude A. Schlesinger, New Orleans, Chester Theodore, III, for amicus curiae, Louisiana State Fraternal Order of Police.

*1030 Gilbert R. Burras, for amicus curiae, Civil Service Commission for the City of New Orleans.

WEIMER, Justice.

**1 A police officer accused of misconduct was terminated by the police department beyond the sixty-day statutory period for conducting an investigation. The Civil Service Commission upheld the discipline imposed. However, the court of appeal reversed (which had the effect of dismissing the investigation and reinstating the officer), finding the police department circumvented the statutory "minimum standards" by not acting within the sixty-day period.

Before the court for consideration is the language of LSA-R.S.40:2531(B) which specifies minimum standards to be applied during investigations of law enforcement officers. Although the statute provides, in part, investigations shall be concluded within sixty days, the statute does not contain a penalty provision. For reasons that follow, we hold where no prejudice is shown due to the delay and because the legislature has not established a penalty of dismissal statutorily, the court should not do so jurisprudentially. It is not the function of the judicial branch in a civilian legal system to legislate by inserting penalty provisions into statutes where the legislature has not done so. Because the statute does not include a penalty and no **2 prejudice has been demonstrated, summary dismissal of the charges is not statutorily mandated if the investigation is not concluded within sixty days. The decision of the court of appeal is reversed and this matter is remanded for consideration of plaintiffs additional assignments of error which were pretermitted by the appellate decision.

FACTS AND PROCEDURAL BACKGROUND Sergeant William Marks, a New Orleans police officer with permanent status, was disciplined for an incident which occurred on November 1 and 2, 2002. The record reflects that 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.

An investigation commenced on November 12, 2002. On January 13, 2003, just beyond the sixty days provided by LSA-R.S. 40:2531(B)(7)¹, the investigating *1031 **3 officer sought an extension of time from his supervisor to complete the investigation. That extension was denied. No request for an extension was made to the Civil Service Commission as outlined by the statute. The case was referred to the District Attorney for the Parish of Orleans on March 19, 2003, for consideration of criminal charges, but the matter was "refused" by the District Attorney; the New Orleans Police Department received notification of that decision on July 3, 2003. On August 12, 2003, the complete report was turned in to the Chief of Police.

During the investigation, Marks was reassigned from his former duties and was not allowed to work details or any overtime. The administrative reassignment lasted almost a year — from November 2002 until his termination on October 2, 2003.

By letter dated October 2, 2003, Marks was notified of the disciplinary action. He was suspended for a total of seventy-five days for failure to adhere to the law, untruthfulness, lack of professionalism, abuse of position, transporting citizens, immoral conduct, and failure to perform duties. He was also terminated for an abuse of power for not reporting the incident to the New Orleans Police Department and for asking the state trooper not to report the incident. The letter signed by Edwin P. Compass, III, Superintendent of Police, also notified Marks of his right to appeal to the Civil Service Commission for the City of New Orleans within thirty days from the date of the letter.

**4 Marks appealed and the matter was assigned for hearing. Following the hearing conducted on December 3 and 4, 2003, the Hearing Examiner recommended the suspension be upheld, but found the termination unjustified. Procedurally, the matter was then presented to three civil service commission members for review. The commission members reviewed the Hearing Examiner's report, a copy of the transcript, and the documentary evidence.

On appeal to the Commission, Marks argued the investigation was not completed within sixty days as required by LSA-R.S. 40:2531(B)(7). The Commission reopened the hearing and directed the Hearing Examiner to take evidence and make a report on the effect on this case of the police department's non-compliance with the statutory sixty-day period. Following the hearing, the Hearing Examiner concluded that there was no evidence to establish that Marks had been prejudiced in preparing or presenting a defense to the charges filed against him because of the delay in the investigation and violation of the sixty-day rule. The Hearing Examiner found the rule to be directory rather than mandatory. The Civil Service Commission agreed with the Hearing Examiner's conclusion and ruled that failure to conduct the disciplinary investigation within sixty days was not fatal to the disciplinary action because Marks was not prejudiced by the delay. The Commission concluded that "[c]onsidering the totality of the circumstances in this matter, we find the appointing authority has proven *1032 its case against appellant on all charges and that his conduct reflects very badly on the integrity and efficiency of the New Orleans Police Department." The Civil Service Commission denied the appeal, upholding the suspension and the termination.

Marks then appealed the decision of the Civil Service Commission to the court of appeal. Finding the appointing authority circumvented the "minimum standards" **5 by not complying with the sixty-day period prescribed by the legislature, the court of appeal reversed the judgment of the Civil Service Commission. Marks v. New Orleans Police Department, 05-0307, (La.App. 4 Cir. 2/8/06), 925 So.2d 622. The New Orleans Police Department filed a writ application with this court which was granted.Marks v. New Orleans Police Department, 06-0575 (La. 5/26/06), 930 So.2d 6.

The appellate court noted it had interpreted the language of this statute in Davis v. New Orleans Police Department, 04-1023 (La.App. 4 Cir. 2/2/05), 899 So.2d 37, writ denied, 05-0941 (La. 5/20/05), 902 So.2d 1057.² In Davis, the court held the New Orleans Police Department's violation of the sixty-day time limit for investigations was grounds for reversing the disciplinary action resulting from the investigation. In this case, the police department argued the court should reconsider its holding inDavis that strictly construes the sixty-day time limit because the decision is contrary to the decision of this court in Bannister v.Department of Streets, 95-0404 (La. 1/16/96), 666 So.2d 641.³

The court of appeal found the facts of this case and that of the Davis case were distinguishable from the facts presented in Bannister. Most notably, the court stated the rule in Bannister was a civil service rule promulgated by the Civil Service Commission that related "solely to the Commission's own actions." Davis, 04-1023 at 5, 899 So.2d at 40.

**6 Although the court of appeal recognized that "the charges against Marks [were] serious in nature," the court considered itself bound by the language of the statute as enacted by the legislature. The decision of the Civil Service Commission was reversed by the court of appeal.⁴

Contentions of the New Orleans Police Department

The New Orleans Police Department argues that violation of the sixty-day rule *1033 does not deprive an employee of a vested property interest in his employment. The Department further argues it is important to determine whether the employee has been prejudiced by the delay and whether the general public's interest outweighs the individual employee's interest. Failure to adhere to the sixty-day rule caused no prejudice and was not a violation of any constitutionally protected due process right. Marks was notified of the discipline against him and given an opportunity to present his case on the merits. He failed to show he was prejudiced by the extended investigation. In this case, after a further hearing, the Civil Service Commission specifically and properly found Marks was not prejudiced by the delay and recognized that failure to conduct the disciplinary investigation within sixty days was not fatal to the disciplinary action.

The Department argues the decision by the court of appeal finding the sixty-day rule mandatory thwarts the fundamental purpose of the civil service system which is to provide a system for the State and its municipalities to insure efficiency in **7 governmental operations by providing security of employment. Such a system enables the State or municipality to take advantage and reap the benefits of experience gained by employees of long service. New Orleans Firefighters Association v.Civil Service Commission of the City of New Orleans, 422 So.2d 402, 410 (La. 1982); see also Vidrine v. State Parks and Recreation Commission,169 So.2d 641, 645 (La.App. 1 Cir. 1964), application denied, 247 La. 348, 170 So.2d 867(1965).

In New Orleans Firefighters Association, this court recognized that civil service was designed to abrogate the "spoils system" whereby public employees were selected for employment and promotion, not on the basis of merit or qualifications for the position, but as rewards for faithful political activity and service. New Orleans Firefighters Association,422 So.2d at 410. Thus, the Department argues the civil service protections afforded to classified employees also serve to protect the public interest. As this court recognized in Bannister, the appointing authority is charged with the responsibility of taking disciplinary action against an employee for impairing the efficiency of public service. To concentrate solely on the possible prejudice to the employee for any delayed decision ignores the rights and duties of the appointing authority to protect the public. Bannister 95-0404 at 7, 666 So.2d at 646. The Department argues weighing the possible prejudice to the employee with the rights and duties of the appointing authority is particularly important with regard to the police department because the public expects the police to act as guardians of its safety. See Stevens v. Department of Police, 2000-1682, p. 8 (La.App. 4 Cir. 5/9/01), 789 So.2d 622, 627

[1] The Department also urges egregious behavior could stall an investigation, and one who commits serious misconduct could avoid discipline and remain on the force. **8 Citing Bannister, the Department argues that applying the sixty-day rule as mandatory "would allow [mere] technicalities to defeat actual justice." The Department also argues that the absence of a statutory penalty "generally indicates a discretionary intent by the drafters." Bannister, 95-0404 at 6, 666 So.2d at 646. The department notes the drafters did not provide a penalty for violating the sixty-day rule.⁵

*1034 Contentions of William Marks

In response, Marks argues the court of appeal correctly determined that the language of LSA-R.S. 40:2531(B)(7) and the obvious intent of the statute mandate that any disciplinary action which results from the violation of such basic rights be overturned. The appellate court found the rule at issue in Bannister was found to be directory because its purpose was the "protection of the government by guiding its officials rather than granting rights to affected private citizens." Bannister, 95-0404 at 5, 666 So.2d at 646. Marks argues the legislative history establishes that the sixty-day rule is mandatory and not directory. The purpose of the statute is the protection of the rights of police officers. The enacting clause sets forth the legislative intent to establish rights of law enforcement officers by providing procedures and standards to apply during the investigation. The statute establishes "minimum standards" that "shall apply" to the investigation. Additionally, the statute expressly provides a procedure to use if more time is needed for the investigation. Marks further argues the statute provides rights to both the accused officer and the appointing authority **9 when an officer is accused of administrative wrongdoing. The words of the statute are clear and unambiguous — using the word "shall" — and no further interpretation of the legislative will is required.

In brief to this court, Marks argues:

The New Orleans Police Department is tasked with the [difficult and demanding] responsibility of enforcing the laws and protecting and serving the citizens . . . of this city. The efficiency and credibility of the department is certainly placed in jeopardy when, because of their refusal to conform with the requirements of law, . . . offenders are allowed to go unpunished.

Public policy demands that the police department do everything in it's [sic] power to insure that officers who violate the administrative rules of the police department are held accountable. Public policy also demands that the police department act within the confines of the law of this state, not only when investigating citizens, but also as it applies when investigating police officers.

The image of the police department is no less diminished when it violates the rights of the citizens on the street as it is when it violates the rights of a police officer. The credibility and image of the New Orleans Police Department could only be enhanced by conducting itself in a manner which conforms with the laws and protects the rights of all who are investigated or accused.

The public benefits from the mandatory application [of] La.R.S. 40:2531 when it is a properly utilized, in that it can be assured that those officers who are accused of administrative wrongdoing are investigated as quickly as possible, and if the investigation reveals wrongdoing, that the offending police officer is disciplined as soon as possible.

Thus, Marks argues both the public and the police department benefit from the efficient investigation and timely discipline of offending officers. Failure of the department to follow the mandates of LSA-R.S.40:2531 without explanation only serves to undermine confidence of the public in its police department. When the public makes a complaint of wrongdoing *1035 against an officer and the department makes **10 no real effort to investigate or pursue the allegations, the delay causes a chilling effect on the potential for others to come forward in similar circumstances.

Marks further contends no explanation was given for failing to complete the investigation timely. Likewise, no extension of the investigative period was requested. Rights of the accused officer matter most when the accused officer is innocent of the allegations or falsely accused. For the department to allow a hardworking officer to suffer under such circumstances for an undetermined period of time while ignoring the rights afforded to him is unconscionable and undermines the working conditions of other hardworking officers who witness such abuses.⁶

DISCUSSION [2] While the arguments of the parties focus primarily on whether the statute requires a mandatory or directory interpretation, we find the fact that the legislature did not include a penalty in the statute for non-compliance with the sixty-day period to be more significant. Certainly, the statute does not provide, nor suggest, that the remedy for non-compliance with the sixty-day period is dismissal of the disciplinary action.

[3][4] Generally, statutes using mandatory language prescribe the result to follow (a penalty) if the required action is not taken. If the terms of the statute are limited to what is required to be done, i.e., procedural rules, then the statute is considered directory even though mandatory language is employed. Bannister, 95-0404 at 5, 666 So.2d at 646;Sanders v. Department of Health Human Resources, 388 **11 So.2d 768, 770 (La. 1980). Provisions designed to secure order, system, and dispatch by guiding the discharge of duties are usually construed as directory even if worded in the imperative. Id., 388 So.2d at 770.

In a recent decision interpreting the New Home Warranty Act (NHWA), LSA-R.S. 9:3141, et seq., this court held the NHWA provides the exclusive remedies, warranties, and peremptive periods between the builder and owner relative to new home construction. In that case the builder failed to give the owners notice of the NHWA's requirements and the homeowners were attempting to recover damages outside the provisions of the NHWA. The statute did not provide a penalty for failure of the builder to provide the homeowners with notice. Although the statute is written with mandatory language requiring the builder to provide notice to the homeowner, the statute does not provide a penalty for the builder's failure to do so. This court refused to provide a penalty, holding "it is not the function of the judicial branch in a civilian legal system to legislate by inserting penalty provisions into statutes where the legislature has chosen not to do so." Carter v.Duhe, 05-3090, p. 10 (La. 1/19/06), 921 So.2d 963, 970.

[5][6][7][8] Marks contends that the statutory provision provides the officer with certain rights, including the right that the investigation be completed within sixty *1036 days.⁷ **12 While this contention is correct, the statute does not establish a penalty for non-compliance and in the absence of prejudice, we cannot supply a penalty. As such, imposing the penalty of dismissal, as the court of appeal did in this matter, is not statutorily authorized.

When LSA-R.S. 40:2531 was enacted, the legislature did not provide a penalty for failure of the investigating authority to complete the investigation within the allotted sixty-day time frame. 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 sixty 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.

[9] We find the failure to comply with the statutory sixty-day time period does not require summary dismissal of a disciplinary action. We do find evidence of failure to comply with the sixty-day period is relevant as to whether the appellant is prejudiced by that failure. A failure to comply with the sixty-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 sixty-day period prejudiced Marks. It was determined he was not prejudiced.

**13 Although Marks complains in brief that he was reassigned for almost a year and was unable to work overtime or paid details during that time, nothing prevented him from seeking remedial action when the appointing authority did not complete the investigation timely. Civil Service Rules grant the Commission authority to remedy an unauthorized loss by the employee by awarding back pay, reinstating benefits, and modifying disciplinary action in order to rectify any prejudice suffered by the employee from a delayed ruling in the *1037 employee's favor. See La.Const. art. X, § 12; Rules of the Civil Service Commission, City of New Orleans, Rule II, § 4.16; Bannister, 95-0404 at 7,666 So.2d at 646-647.

The sixty-day period provided in the statute aspires to serve the interests of the accused officer, the police department, and the public. An officer wrongfully accused should be exonerated promptly. A police officer who engages in inappropriate conduct is an aberration and should be disciplined promptly. The statute provides a time frame within which to complete the investigation, but does not provide a penalty for failure to do so. As in Carter, supra, we defer to the legislature and decline to impose the Draconian penalty of summary dismissal of the disciplinary action where no penalty is provided in the 13 statute and no prejudice is demonstrated due to the delay.⁸

CONCLUSION For the foregoing reasons, the decision of the appellate court is reversed and the matter remanded for consideration of appellant's other assignments of error.

REVERSED AND REMANDED. 950 So.2d 861 Page 1 950 So.2d 861, 2006-0859 (La.App. 4 Cir. 1/10/07) (Cite as: 950 So.2d 861)

Boutte v. Department Of Police

La.App. 4 Cir., 2007

John BOUTTE v. DEPARTMENT OF POLICE. No. 2006-CA-0859. Jan. 10, 2007. Background: Police officer sought review of decision of the Civil Service Commission, suspending him for 30 days for being absent without leave in the aftermath of a major hurricane.

Holding: The Court of Appeal, Joan Bernard Armstrong, C.J., held that as a probationary employee at time of events leading to suspension, officer had no appeal rights.

Affirmed.

West Headnotes

Municipal Corporations 268 185(12)

268 Municipal Corporations 268V Officers, Agents, and Employees 268V(B) Municipal Departments and Officers Thereof 268k179 Police 268k185 Suspension and Removal of Policemen 268k185(12) k. Review in General. Most Cited Cases Police officer, as a probationary employee at time he was alleged to have been absent from work without leave in the aftermath of hurricane, had no right to appeal to Civil Service Commission to challenge disciplinary action, suspending him for 30 days.

*861 C. Theodore Alpaugh III, Claude A. Schlesinger, Guste, Barnett Shushan, L.L.P., New Orleans, LA, for Plaintiff/Appellant. Victor L. Papai, Jr., Assistant City Attorney, Penya Moses-Fields, City Attorney, Joseph V. Dirosa, Jr., Chief Deputy City Attorney, New Orleans, LA, for Defendant/Appellee.

(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DAVID S. GORBATY and Judge LEON A. CANNIZZARO JR.). JOAN BERNARD ARMSTRONG, Chief Judge. **1 Plaintiff-appellant, John Boutte, appeals a decision of the Civil Service Commission suspending him for thirty days.

On December 12, 2005, the plaintiff-appellant, New Orleans Police Department Officer, John Boutte, received a letter from the Appointing Authority suspending him for thirty days for allegedly being absent without leave from September 3, 2005 through September 5, 2005, in the aftermath of Hurricane Katrina.

The investigation of Officer Boutte was assigned to the Public Integrity Bureau on September 21, 2005. His disciplinary hearing was not held until December 6, 2005. He appealed to the Civil Service Commission on January 10, 2006, contending, among other things, that the investigatory process took over sixty days in contravention of La.R.S.40:2531(B)(7).

On March 31, 2006 the Appointing Authority filed a motion for summary disposition dismissing Officer Boutte's appeal, arguing that Officer Boutte was a probationary employee and that only "regular" employees have the right under Rule II, Section 4.1 to appeal disciplinary actions of the Civil Service Commission.

**2 On April 28, 2006, the Civil Service Commission granted the Appointing Authority's Motion for Summary Disposition of the plaintiff's appeal based on the fact that the plaintiff was a probationary employee.

The plaintiff framed the case and his argument on page "1" of his brief:

Officer John Boutte does not deny that he was a probationary officer at the time *862 his discipline was imposed. Nor, for that matter, does he deny that, as a general rule, probationary employees are deemed not to have a property interest in their jobs and, therefore, not to have any due process rights with regard to disciplinary matters. However, the legislature can nonetheless grant such rights to probationary employees, thus providing them with the right to due process. It is that grant of due process embodied in La.R.S. 40:2531, et. seq. which provides certain law enforcement officers like Officer Boutte with a property right and concomitant due process embodied rights that he may not ordinarily have because of his employment status at the time of the discipline.

In effect, counsel for Officer Boutte argues that La.R.S. 40:2531 applies even to probationary employees. We find the law to be otherwise.

In Moore v. New Orleans Police Dept., 01-0174, p. 7 (La.App. 4 Cir. 3/7/02), 813 So.2d 507, 511, this Court stated that:

Civil Service employees who have reached permanent status cannot be terminated without a lawful cause. Barquet v. Department of Welfare,620 So.2d 501, 504 (La.App. 4 Cir. 1993). See Louisiana Constitution Article X, Sec. 8. However, there is no such guarantee for probationaryemployees. [Emphasis added.]

See also Banks v. New Orleans Police Dept., 01-0859, pp. 4-7 (La.App. 4 Cir. 3/13/02), 813 So.2d 537, 540-542; Scott v. New Orleans Dept. ofFinance, p. 4, 01-0907 (La.App. 4 Cir. 12/19/01), 804 So.2d 836, 838.

The summary dismissal of Officer Boutte's appeal as a probationary employee to the Civil Service Commission is consistent with this Court's **3 declaration in Walton v. French Market Corp., 94-2457, p. 2 (La.App. 4 Cir. 4/26/95), 654 So.2d 885, 886:

If Walton is considered a probationary employee, he has no appeal rights and the case ends. Civil

Service Rule II, § 4.1; Civil Service Rule VII, § 1.1.

See also Williams v. Chief Administrative Officer, 398 So.2d 1252,1253 (La.App. 4 Cir. 1981).

It is the opinion of this Court that had the legislature intended to make the sixty-day investigatory period found in La.R.S. 40:2531 applicable to probationary employees and thereby override Civil Service Rules and consistent jurisprudence of long standing concerning appeals, it would have used more explicit language in doing so. Officer Boutte cites no cases recognizing appeal rights for probationary employees under facts analogous to those of this case.

Additionally, we note that the Louisiana Supreme Court has just ruled that the sixty-day limit prescribed by La.R.S. 40:2531 is not mandatory; it is merely directory. Marks v. New Orleans Police Dept., 06-0575 (La. 11/29/06), 943 So.2d 1028.

For the foregoing reasons, the decision of the Civil Service Commission is affirmed.

AFFIRMED.

¹ LSA-R.S. 40:2531(B)(7) provides:

B. Whenever a law enforcement officer is under investigation, the following minimum standards shall apply:

(7) Except as otherwise provided in this Paragraph, each investigation of a law enforcement officer which is conducted under the provisions of this Chapter shall be completed within sixty days. However, in each municipality which is subject to a Municipal Fire and Police Civil Service law, the municipal police department may petition the Municipal Fire and Police Civil Service Board for an extension of the time within which to complete the investigation. The board shall set the matter for hearing and shall provide notice of the hearing to the officer who is under investigation. The officer who is under investigation shall have the right to attend the hearing and to present evidence and arguments against the extension. If the board finds that the municipal police department has shown good cause for the granting of an extension of time within which to complete the investigation, the board shall grant an extension of up to sixty days. Nothing contained in this Paragraph shall be construed to prohibit the law enforcement officer under investigation and the appointing authority from entering into a written agreement extending the investigation for up to an additional sixty days. Further, nothing in this Paragraph shall limit any investigation of alleged criminal activity.

² Davis is no longer sound authority given our ruling in this matter.

³ In Bannister, this court held that a civil service rule, although couched in mandatory terms requiring the Commission to render its decision within ninety days of receiving the hearing officer's report, was merely directory in nature. This court noted the rule related solely to the Commission's own actions and did not set forth the result to follow a failure to comply. This court also noted that neither party had been properly forewarned or given an opportunity to avoid the unknown consequences which might follow from the Commission's failure to act.Bannister, 95-0404 at 6 and 7, 666 So.2d at 646.

⁴ We note that the court of appeal has recently affirmed a decision by the Civil Service Commission in the matter of Dunn v. New OrleansPolice Department, 06-0044, (La.App. 4 Cir. 8/9/06), 938 So.2d 217, in which the Civil Service Commission reversed the disciplinary action taken against an officer for failure of the department to complete its investigation within the time allotted by LSA-R.S. 40:2531. The Civil Service Commission cited and followed the decision in Davis, supra. Acknowledging its decision in Davis, the court of appeal indicated the New Orleans Police Department must look to the legislature to change the statute if a different result is to be reached in future cases. Dunn, 06-0044 at 2, 938 So.2d at 218.

The New Orleans Police Department has applied to this court for writ of certiorari.

⁵ As amicus, the Civil Service Commission, although not a party, argued that if the sixty-day rule is mandatory as opposed to directory, and can result in discipline being avoided for failure to timely conclude the investigation, then the legislature exceeded its authority and the statute would, thus, be unconstitutional. The issue of the constitutionality of the statute was not raised below. Therefore, that issue is not properly before this court. Vallo v. Gayle Oil Company,Inc., 94-1238, p. 8 (La. 11/30/94), 646 So.2d 859, 864-865.

⁶ In an amicus brief to this court the Civil Service Commission argues the statute does not create or extinguish rights. It merely establishes deadlines. The Commission further argues that a statute imposing procedural deadlines should be given mandatory or directory meaning depending on an analysis of its purpose. See Bannister, 95-0404 at 5, 666 So.2d at 646. Laws directed to government officials are considered differently from those granting rights to private citizens. The Commission argues the statute should be given directory effect. As indicated in footnote 5, the Commission also made a constitutional argument.

⁷ Amicus Fraternal Order of Police suggests that the due process clause is implicated by the failure to complete the investigation timely. The essential requirements of due process are notice and an opportunity to respond before one is deprived of a vested right. SeeCleveland Board of Education v. Loudermill, 470 U.S. 532, 546,105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985); Wilson v. City of NewOrleans, 479 So.2d 891, 901 (La. 1985). In this matter, Marks was provided notice and an opportunity to be heard prior to being subjected to discipline on the issue of the delay in completing the investigation. As indicated, the Civil Service Commission reopened Mark's hearing for the Hearing Examiner to take evidence and report on the effect upon his case of non-compliance with the sixty-day rule by the police department. After a hearing, no prejudice was found. Marks had sufficient opportunity to initially present his case on the merits and then another opportunity to show prejudice by the extended investigation when the hearing was reopened. Based on these hearings, the due process clause was not violated.

Nevertheless, our ruling should not be construed as sanctioning delays, especially since the statute provides for a procedure to seek an extension for conducting an investigation. A delay beyond the statutorily established sixty-day period which unfairly prejudices the officer may well implicate the due process clause. As stated in Driscoll v. Stucker, 04-0589, p. 13 (La. 1/19/05), 893 So.2d 32, 43:

Due process is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts. As a generalization, it can be said due process embodies the differing rules of fair play which through the years have become associated with differing types of proceedings. [Citations omitted.]

⁸ We note for the sake of completeness that the last sentence ofLSA-R.S. 40:2531(B)(7), which provision is quoted in full at footnote 1, provides: "Further, nothing in this Paragraph shall limit any investigation of alleged criminal activity."

This sentence was not addressed in the context of these proceedings, and we express no opinion as to its applicability.