City of Shreveport v. Shreveport Municipal Fire and Police Civil Service Board and Officer Orlando Peyton

Judgment rendered May 26, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,954-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

CITY OF SHREVEPORT Plaintiff-Appellant

versus

SHREVEPORT MUNICIPAL FIRE Defendants-Appellees
AND POLICE CIVIL SERVICE
BOARD AND OFFICER
ORLANDO PEYTON

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 618,582

Honorable Ramon Lafitte, Judge

*****

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

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

BREEDLOVE LAW FIRM Counsel for Appellee,
By: Pamela Breedlove 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

1
La. R.S. 40:2531(B)(7) states:

When a formal, written complaint is made against any police
employee or law enforcement officer, the superintendent of state police or
the chief of police or his authorized representative shall initiate an
investigation within fourteen days of the date the complaint is made.
Except as otherwise provided in this Paragraph, each investigation of a
police employee or 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 police employee or
law enforcement officer who is under investigation. The police employee
or law enforcement 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 police employee or 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.
The investigation shall be considered complete upon notice to the police
employee or law enforcement officer under investigation of a pre-
disciplinary hearing or a determination of an unfounded or unsustained
complaint. Nothing in this Paragraph shall limit any investigation of
alleged criminal activity.

2

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.

2
The following are the possible administrative findings that can be made during an
IAB investigation: 1) Sustained: there was a violation of written police, procedure, rule,
regulation or law and the findings are validated through direct evidence and/or testimony;
2) Not Sustained: It cannot be determined whether there was a violation of written policy,
procedure, rule, regulation or law; 3) Exonerated: the action complained of did occur but
was lawful, proper, and within departmental guidelines; 4) Unfounded: There was no
violation of written policy, procedure, rule, regulation or law; 5) Policy Failure: The
allegations in the complaint are true but the employee’s actions were consistent with
department policy, and the policy will be examined for revision; 6) False Complaint: The
allegations are false; and 7) Exceptional Clearance: If the complaint cannot be classified
into one of the above categories, the chief of police or designee has discretion to classify
the complaint as an “exceptional clearance” and must state the reasons for such
classification in writing.

3

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

3
La. R.S. 40:2531(C) states:

There shall be no discipline, demotion, dismissal, or adverse action
of any sort taken against a police employee or law enforcement officer
unless the investigation is conducted in accordance with the minimum
standards provided for in this Section. Any discipline, demotion,
dismissal, or adverse action of any sort whatsoever taken against a police
employee or law enforcement officer without complete compliance with
the foregoing minimum standards is an absolute nullity.

4

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

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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

4
La. R.S. 33:2501(A) states:

Any regular employee in the classified service who feels that he
has been discharged or subjected to any corrective or disciplinary action
without just cause, may, within fifteen days after the action, demand, in
writing, a hearing and investigation by the board to determine the
reasonableness of the action. The board shall grant the employee a hearing
and investigation within thirty days after receipt of the written request.

6

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.
…

(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 except as
provided in Subsection D of this Section.

Factual findings in civil service cases are to be given deference by a

reviewing court. Richardson v. City of Shreveport, 52,203 (La. App. 2 Cir.

6/27/18), 251 So. 3d 691, 697. Review by a district court does not include a

trial de novo. Id. The district court may not substitute its own opinion for

that of the Board. Richardson, supra, citing Hawkins v. City of Bossier,

48,959 (La. App. 2 Cir. 4/9/14), 137 So. 3d 128. The Board’s decision will

not be overturned unless it is manifestly erroneous or arbitrary and

capricious. Johnson v. City of Shreveport, 52,801 (La. App. 2 Cir. 8/14/19),

276 So. 3d 1128. “If made in good faith and statutory cause, a decision of

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the civil service board cannot be disturbed on judicial review.” Moore v.

Ware, 01-3341 (La. 2/25/03), 839 So. 2d 940, 945. Good faith does not

occur if the appointing authority acts arbitrarily or capriciously, or as a result

of prejudice or political expediency. Arbitrary or capricious means there

was a lack of rational basis for the action taken. Johnson, supra;

Richardson, supra.

The intermediate appellate court’s review of a civil service board’s

findings of fact is also limited. Those findings are entitled to the same

weight as findings of fact made by a trial court and are not to be overturned

in the absence of manifest error. Johnson, supra; Richardson, supra.

DISCUSSION

The framework for investigating complaints against and imposing

discipline on law enforcement officers establishes certain procedural due

process safeguards to protect the right of challenging the allegations

contained in a complaint. The Louisiana Police Officer Bill of Rights

establishes minimum standards for investigations. La. R.S. 40:2531(B)(7).

Police departments can violate the minimum standards set forth in La. R.S.

40:2531(B)(7) by exceeding the 60-day time limit for completing the

administrative investigation. Liang v. Dep’t of Police, 13-1364 (La. App. 4

Cir. 8/20/14), 147 So. 3d 1221, 1230. The Police Officer Bill of Rights

provides that:

There shall be no discipline, demotion, dismissal, or adverse
action of any sort taken against a police employee or law
enforcement officer unless the investigation is conducted in
accordance with the minimum standards provided for in this
Section. Any discipline, demotion, dismissal or adverse action
of any sort whatsoever taken against a police employee or law
enforcement officer without complete compliance with the
foregoing minimum standards is an absolute nullity.

8

La. R.S. 40:2531(C). Any violation of the six minimum standards set forth

in the statute renders the proceedings a nullity. Coburn v. City of Bossier

City, 09-01970, 2012 WL 2427038 (W.D. La. June 26, 2012). The City has

not disputed that its investigation into Officer Peyton went beyond the 60-

day standard set by La. R.S. 40:2531(B)(7) and that any discipline or

adverse action against him would be a complete nullity. As such, the

question before the Board and the district court was whether the sustained

complaint was discipline or adverse action against Officer Peyton.

First Assignment of Error: The District Court erred in finding that
the classification of the complaint against Officer Peyton as “sustained”
was a “corrective or disciplinary action” such that he was entitled to an
appeal under La. R.S. 2501(A).

The City argues that Officer Peyton had no right to appeal to the

Board about the sustained complaint in his IAB file because the sustained

complaint is not corrective or disciplinary action. La. R.S. 33:2501(A)

provides:

Any regular employee in the classified service who feels that he
has been discharged or subjected to any corrective or
disciplinary action without just cause, may, within fifteen days
after the action, demand, in writing, a hearing and investigation
by the board to determine the reasonableness of the action. The
board shall grant the employee a hearing and investigation
within thirty days after receipt of the written request.

La. R.S. 33:2501(A) provides when the Board ‘shall’ grant the employee a

hearing, and the provisions are mandatory. Hewitt v. Lafayette Mun. Fire &

Police Civ. Serv. Bd., 13-1429 (La. App. 3 Cir. 6/4/14), 139 So. 3d 1213,

1222.

La. R.S. 33:2500(B) defines disciplinary action:

Unless the cause or condition justifies an employee being
permanently removed from the service, disciplinary action may

9

extend to suspension without pay for a period not exceeding the
aggregate of ninety days in any period of twelve consecutive
months, reduction in pay to the rate prevailing for the next
lower class, reduction or demotion to a position of any lower
class and to the rate of pay prevailing therefor, or such other
less drastic action that may be appropriate under the
circumstances. Nothing contained herein shall prevent any
employee who is physically unable to perform the duties of his
position from exercising his rights of voluntary retirement
under any applicable law.

(emphasis added).

In Mills v. City of Shreveport, 58 F. Supp. 3d 677 (W.D. La. 2014), a

federal court examined Section 2501 to determine whether the documented

verbal counseling to a Shreveport police officer was considered corrective or

disciplinary action. The court found that the documented verbal counseling

fell within the scope of Section 2501 as a disciplinary or corrective action

because the documentation was placed in the officer’s personnel file and

would stay there until after he retires. Id. at 685. The court stated that even

if the documented verbal counseling was not disciplinary action, it was, at

the very least, corrective action. As evidence of this fact, the court noted

evidence presented that the point of verbal counseling was to obtain

compliance with established rules and to explain to the officer how the

department expects him to behave. Id. Thus, the court found that the board

was required to grant the officer’s request for an appeal hearing.

In Burkart v. New Orleans Police Dep’t, 01-1237 (La. App. 4 Cir.

2/13/02), 811 So. 2d 42, the court held that a disciplinary action includes a

letter of reprimand in an officer’s personnel file because it “will remain as a

permanent black mark in his personnel record and might be weighed against

him when employment decisions were made affecting him in the future at a

time when appellant would have no means of correcting the record.”

10

In Hebert v. New Orleans Police Dep’t, 01-1165 (La. App. 4 Cir.

12/19/01), 805 So. 2d 345, writ denied, 02-0243 (La. 4/22/02), 811 So. 2d

932, a New Orleans police officer argued that a letter of reprimand that was

placed in his permanent record was a form of disciplinary action and, thus,

he had the right to appeal its placement in his file. The police department

argued that a letter of reprimand is managerial discretion that allows it to

correct minor problems before they grow into major ones and that the “mere

theoretical effect” of the letter of reprimand on possible promotions or future

employment was too abstract to constitute a property interest or to otherwise

justify a right to an appeal. Id. at 350. The court found that the officer had a

right to appeal the letter of reprimand, due to its permanent nature in his file.

Id. at 351.

In the present matter, the district court specifically found that the

sustained complaint was an adverse action against Officer Peyton. The court

considered the Shreveport Police Department’s former policy of using

sustained complaints in progressive discipline, the potential disclosure of the

sustained complaint to future employers, the ability of current supervisors to

access the sustained complaint, and the police department’s admitted use of

sustained complaints to determine the need for an early intervention program

for officers. A sustained complaint is clearly intended to be used as

corrective or disciplinary in nature, and such an adverse action is reviewable

on appeal. Considering the above, we cannot find that the court was

manifestly erroneous in finding that the sustained complaint was an adverse

action, and as such, the Board was mandated to hear Officer Peyton’s

appeal. This assignment of error lacks merit.

11

Second Assignment of Error: The district court erred in finding that
the Shreveport Municipal Fire and Police Civil Service Board’s ruling
that the sustained complaint against Officer Peyton be “dismissed” and
that it be “removed from his personnel file, his internal affairs file” was
made in good faith and for cause.

The City argues that the Board’s finding that the sustained complaint

was an absolute nullity and should be removed from Officer Peyton’s file

was arbitrary and capricious because the Board failed to consider the

administrative purposes for maintaining IAB files, as well as the difference

between an officer’s IAB file and personnel file. Officer Peyton argues that

the Board’s decision to order the sustained complaint removed from his file

was made in good faith and for cause. Officer Peyton notes that the Board

never ordered the document to be destroyed but, rather, simply removed

from his file.

The role of a reviewing court in civil service appeals is confined to a

determination of whether the Board’s decision was made in good faith for

statutory cause pursuant to La. R.S. 33:2501(E)(3). “If made in good faith

and statutory cause, a decision of the civil service board cannot be disturbed

on judicial review.” Moore, supra. Good faith does not occur if the

appointing authority acts arbitrarily or capriciously, or as a result of

prejudice or political expediency. Arbitrary or capricious means there was a

lack of rational basis for the action taken. Johnson, supra; Richardson,

supra. The civil service board's factual conclusions should be given

deference and will not be overturned if there is any evidence to support them

and they are not manifestly erroneous or arbitrary. Deal v. Monroe Mun.

Fire & Police Civil Serv. Bd., 33,025 (La. App. 2 Cir. 6/21/00), 764 So. 2d

257, 259.

12

A review of the Board’s hearing on the matter confirms that it reached

its decision to remove the sustained complaint from the IAB file because the

City had violated the 60-day standard set by R.S. 40:2531(B)(7). The

district court considered the record before it, which included the proffered

testimony of Captain Gayle McFarland and Lt. Jackson and arguments by

counsel for the City, Officer Peyton, and the Board. There is evidence of a

lengthy discussion of the difference between personnel files and IAB files,

including the physical location of the files and the administrative differences

between the files. The Board discussed the fact that the sustained complaint

might be a public record and the effect on the sustained complaint as an

absolute nullity under La. R.S. 40:2531(C).

The district court carefully examined the record submitted with the

City’s appeal in order to determine if the Board’s decision was made in good

faith and for cause. The City strenuously argued before the court that the

Board’s decision was arbitrary and capricious when compared to a decision

it made after the Peyton hearing regarding a different officer and a

“preventable” accident designation being maintained in a crash review board

file. However, “[c]ourts look only to the evidence presented before the

Board and review this evidence in light of the presumption that the Board

found sufficient facts to afford a legal basis for its decision.” Deal, supra,

citing Shields v. City of Shreveport, 579 So. 2d 961 (La. 1991).

The court examined the Board’s ruling and considered the proffered

testimony. The district court found that the Board was not arbitrary and

capricious and acted in good faith. The sustained complaint was an adverse

action, against which Officer Peyton was not afforded the opportunity to

13

contest the allegations made in the complaint. The failure to comply with

the time delays established for the investigation resulted in the sustained

complaint being a nullity. It is apparent from the record before us that the

district court thoroughly reviewed the evidence and testimony provided to

the Board, proffered or otherwise, and we cannot find that the conclusion of

the district court was manifestly erroneous or legally incorrect. This

assignment of error likewise lacks merit.

CONCLUSION

For the foregoing reasons, the judgment of the district court is

affirmed. Costs of appeal are assessed to Plaintiff, City of Shreveport, for an

amount totaling $2,422.92.

AFFIRMED.

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