City of Shreveport v. Shreveport Mun. Fire & Police Civil Serv. Bd.

322 So.3d 388

CITY OF SHREVEPORT, Plaintiff-Appellant

v.SHREVEPORT MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD and Officer Orlando Peyton, Defendants-Appellees

No. 53,954-CA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered May 26, 2021

CARMOUCHE, BOKENFOHR, BUCKLE & DAY, PLLC, Shreveport, By: Nichole M. Buckle, Counsel for Appellant

BILLY R. CASEY, Shreveport, Counsel for Appellee, Shreveport Municipal Fire and Police Civil Service Board

BREEDLOVE LAW FIRM, Shreveport, By: Pamela Breedlove, Counsel for Appellee, Officer Orlando Peyton

Before GARRETT, STEPHENS, and THOMPSON, JJ.

THOMPSON, J.

A police officer, asserting he had not been afforded his due process rights for a timely hearing, appealed to the civil service board to have removed from his personnel files a sustained complaint against him by his superior officers regarding claimed sick leave. The police officer asserted that the sustained complaint was an absolute nullity. The civil service board, without an evidentiary hearing to determine if the sustained complaint amounted to a disciplinary or corrective action against the officer, ordered the sustained complaint removed from his file. The municipality was allowed to present proffered testimony and evidence on the record. The district court held that the sustained complaint was an adverse action, which amounts to corrective or disciplinary in nature, and affirmed the decision by the civil service board and ordered the sustained complaint removed from the officer's records. The district court also held the civil service board acted in good faith and was not arbitrary or capricious in reaching its decision. The municipality appealed the district court's judgment. For the reasons set forth more fully herein, we affirm the district court's judgment.

FACTS

In December of 2018, a complaint was filed with the Shreveport Police Department Internal Affairs Bureau ("IAB") about a potential violation of a general order by Officer Orlando Peyton ("Officer Peyton"), for his alleged failure to remain in his residence during a period for which he was claiming sick leave from work. IAB began an investigation, which commenced on February 2, 2019. Louisiana law requires that when a formal, written complaint is made against any police officer, the investigation into the complaint, including notice to the officer that the charges against him have been sustained and a pre-disciplinary hearing has been scheduled, must be completed within sixty days, unless the parties enter into a mutually agreed upon extension.¹ Here, the parties agreed to a 15-day extension, leaving February 17, 2019, as the deadline for the completion of the investigation, which includes notice of the pre-disciplinary hearing.

The City of Shreveport ("City") alleges that Lieutenant John Eatman concluded that there was a violation of policy by Officer Peyton and submitted his investigative report to the chief of police for his review. The complaint was sustained by Chief Ben Raymond on February 12, 2019, with instructions to schedule a pre-disciplinary hearing. However, notice was not provided to Officer Peyton of the sustained complaint and scheduled pre-disciplinary hearing before the February 17, 2019 deadline, and the hearing never occurred. As a result, Officer Peyton was not afforded the opportunity to refute the complaint lodged against him.

A document entitled "Shreveport Police Department Comments Page" was placed in Officer Peyton's IAB file (the "sustained complaint"). The sustained complaint includes the IAB Control Number, has a circle around the word "concur" that is signed by the deputy chief, and includes a box that states: "The Appointing Authority comments on which alleged violations, if any, to hold a PDC. Sustained-violation of 301.06. Hold PDH. Do not hold PDH-violation of 60 days and extension."² This portion of the document is signed by the police chief. The sustained complaint was placed in Officer Peyton's IAB file but not in his human resources file. The IAB records and the human resources records are kept at different physical locations, but all are accessible by computer. The contents of both records can be accessed by current and potential employers in making promotion and employment decisions.

PROCEDURAL HISTORY

On March 15, 2019, Officer Peyton filed an appeal with the Shreveport Municipal Fire and Police Civil Service Board ("Board"), alleging that the sustained complaint was disciplinary or corrective action and an absolute nullity under La. R.S. 40:2531(C).³ At the August 14, 2019 hearing on the matter, prior to introduction of any evidence or testimony, but after discussion of the procedural history of the matter by counsel for the City and Officer Peyton, Michael Carter, chairman of the Board, asked if there was a stipulation that the City had violated the 60-day rule. Both counsel so stipulated. The chairman requested that the Board's legal counsel advise the Board concerning absolute nullities, which was provided.

The chairman then solicited motions from the members of the Board, which resulted in member Dean Willis's motion: "I make a motion to dismiss the sustained complaint against Officer Orlando Peyton and have it removed from his personnel file, his internal affairs file." That motion passed unanimously. The passing of the motion by the Board pretermitted the hearing requested by the City. Faced with a decision by the Board voting prior to the opportunity to elicit testimony and evidence on the issue of whether the sustained complaint was an adverse action, counsel for the City requested the opportunity proffer certain exhibits and take the testimony of the witnesses. The record was devoid of testimony or evidence regarding the threshold question of whether the sustained complaint was corrective or disciplinary action at the time the Board voted to order the sustained complaint removed. The proffered testimony and evidence provides pertinent information and a record for the reviewing courts to consider in making such a determination.

The City requested the opportunity, "[f]or purposes of appeal," to "proffer testimony briefly," which inquiry was responded to by legal counsel for the Board with: "I think, Mr. Chairman, to perfect the record, I think you ought to let the evidentiary hearing go forward." As the Board had already voted on the item and did not entertain a motion to reconsider that vote, the evidence and testimony was proffered, although not considered by the Board at that time.

Included in that proffer was testimony that the Shreveport Police Department utilizes a progressive disciplinary system, and that during the previous administration, supervisors used an officer's prior disciplinary history in determining current discipline. Lieutenant Gary Jackson testified that the police department has an early intervention program, which allows supervisors to look at the number of sustained complaints against an officer in order to correct behavior.

The IAB files, unlike the personnel files, are indexed by year and complaint number, rather than by an officer's name, but the IAB computer system allows supervisors to search an officer's name to determine the number of sustained complaints against him. The identity of the officer is not redacted from the reports. Finally, testimony adduced that if an officer applies to another agency, the standard practice is for that agency to request the officer release his IAB files. If an officer refuses to sign the IAB waiver, it is unlikely he would be hired because there would be an assumption that the IAB file would reflect negatively on the applicant.

The City filed a notice of appeal in the First Judicial District Court, Caddo Parish and argued that the Board erred in finding that Officer Peyton had the right to appeal a sustained complaint because no corrective or disciplinary action was given under La. R.S. 33:2501(A) and that the Board's ruling was arbitrary and capricious.⁴

After reviewing the entire record, the briefs submitted by the parties, and hearing oral argument, the district court found that the sustained complaint amounted to adverse action against Officer Peyton, that the Board was not arbitrary and capricious, and that it had acted in good faith. The court noted that the sustained complaint was a public record and, therefore, it could not be destroyed. The court found that the Board acted in good faith when it ordered the sustained complaint to be removed from Officer Peyton's IAB file because it was an adverse action with a negative result against Officer Peyton. The court was particularly concerned with the fact that if Officer Peyton ever wanted to move to another police department, he would likely have to release his IAB file containing the sustained complaint. The court took note of the fact that Officer Peyton was unable to present a defense to the sustained complaint because the police department failed to meet the statutory guidelines.

The district court issued a judgment on September 8, 2020, stating "for the reasons orally assigned, the court found that a sustained complaint is adverse action under La. R.S. 40:2531(C)" and ordered that the Board acted in good faith and their ruling was affirmed. An identical judgment was issued on September 9, 2020. This appeal followed.

STANDARD OF REVIEW

La. R.S. 33:2501(E) provides:

(1) Any employee under classified service and any appointing authority may appeal from any decision of the board, or from any action taken by the board under the provisions of the Part that is prejudicial to the employee or appointing authority. This appeal shall lie direct to the court of original and unlimited jurisdiction in civil suits of the parish wherein the board is domiciled.

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(3) This hearing shall be confined to the determination of whether the decision made by the board was made in good faith for cause under the provisions of this Part. No appeal to the court shall be taken except upon these grounds and

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