City of Shreveport v. Shreveport Municipal Fire and Police Civil Service Board and Rickey Daughtrey consolidated with City of Shreveport v. Shreveport Municipal Fire and Police Civil Service Board, Rickey Daughtrey, LaDarious Ford and Deonquanita Smith

Judgment rendered June 29, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,540-CA
No. 54,654-CA
(Consolidated Cases)

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

No. 54,540-CA No. 54,654-CA

CITY OF SHREVEPORT CITY OF SHREVEPORT
Plaintiff-Appellant Plaintiff-Appellant

versus versus

SHREVEPORT MUNICIPAL SHREVEPORT MUNICIPAL
FIRE and POLICE CIVIL FIRE and POLICE CIVIL
SERVICE BOARD AND SERVICE BOARD, RICKEY
RICKEY DAUGHTREY DAUGHTREY, LADARIOUS
Defendants-Appellees FORD, AND DEONQUANITA
SMITH
Defendants-Appellees

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court Nos. 627,569 and 625,892

Honorable Ramon Lafitte, Judge

*****

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

BREEDLOVE LAW FIRM Counsel for Appellee,
By: Pamela N. Breedlove Rickey Daughtrey

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

*****

Before PITMAN, STEPHENS, and ROBINSON, JJ.

ROBINSON, J.

In these consolidated appeals, the City of Shreveport (“City”) appeals

two district court judgments upholding decisions by the Shreveport

Municipal Fire and Police Civil Service Board (“Board”) to reverse two

terminations of a police officer who had been earlier placed on leave without

pay.

We affirm both judgments.

FACTS

Rickey Daughtrey, an officer with the Shreveport Police Department

(“SPD”), violated policies of the SPD and possibly state law when he, along

with several other SPD officers, submitted fraudulent physician certificates

in order to obtain paid sick leave.

In a letter dated April 16, 2020, Daughtrey received notice from the

SPD’s Internal Affairs Division that he was being placed on

“administrative” leave with pay effective that date.

On May 26, 2020, a Caddo Parish assistant district attorney sent an

email to the SPD stating she had reviewed the materials that were submitted

regarding the officers and had determined that the matters were not suitable

for criminal prosecution. She added there were adequate remedies within

the SPD’s administrative process.

On May 26, 2020, notice was sent to Daughtrey that he was being

placed on “departmental” leave without pay effective the following day. On

June 1, 2020, Daughtrey received notice of an investigation from the SPD.

A Personnel Action Form (“PAF”) signed by SPD Chief Ben

Raymond and stating that Daughtrey had been placed on “administrative”

leave without pay pending an investigation by the SPD was submitted to the

Board on June 24, 2020. The Board approved the PAF at its meeting on July

8, 2020.

On July 17, 2020, Daughtrey received notice that he was terminated

effective as of that date. He appealed his termination to the Board, which

conducted a lengthy hearing on September 9, 2020, concerning Daughtrey

and two other officers. The Board voted to revoke the PAF that it had

approved in July. It also ruled that the discipline and entire process was an

absolute nullity. The City was ordered to reinstate Daughtrey and make him

whole.

In a September 16, 2020, letter to Chief Raymond, the Board’s

chairman detailed the Board’s factual findings at the September 9 meeting.

He wrote that the Board ruled that the SPD failed to meet the minimum

requirements prescribed by law, and that Daughtrey and the other officers

were to be reinstated and made whole. The discipline and entire process was

declared an absolute nullity. The Board ordered that the terminations of the

three officers were absolute nullities.

The City sought review of the Board’s decision. Citing the 15-day

appeal provision in La. R.S. 33:2501, the City noted that Daughtrey did not

appeal or file a demand with the Board after being placed on leave without

pay. The City also sought a stay of Daughtrey’s reinstatement. The stay

was denied on October 6, 2020.

The district court conducted a hearing on April 22, 2021, to review the

Board’s findings. It rendered judgment which: (1) reversed the Board’s

decision to reinstate Daughtrey’s pay for the period when he was on unpaid

leave because that decision was not made in good faith for cause since

Daughtrey had not appealed his placement on unpaid leave; (2) affirmed the
2

Board’s good faith for cause determination that placing Daughtrey on leave

without pay was discipline that made his termination a second discipline not

permitted by law; (3) affirmed the Board’s good faith for cause decision to

reverse Daughtrey’s termination; and (4) modified the Board’s reinstatement

order to provide that Daughtrey’s reinstatement with pay and benefits was

retroactive to the July 17, 2020, date of termination, and, as modified,

affirmed it. The City of Shreveport appealed.

After the district court denied the stay but before the district court

conducted the hearing at which it reviewed the Board’s September 9

decision, the City took additional action against Daughtrey in October of

2020. He was placed on paid leave on October 7. Two days later, he was

given notice of a pretermination hearing. On October 13, Daughtrey was

terminated effective that date. He appealed to the Board.

The Board heard Daughtrey’s second appeal on December 9, 2020.

As noted earlier, the City’s appeal to the district court from the Board’s

September 9 decision was still pending at the time. The City argued that

because the Board had earlier declared that the suspension and the first

termination were absolute nullities, the earlier discipline was considered to

have never taken place, which put the City in the same position it had been

in on May 26, 2020, prior to placing Daughtrey on leave without pay.

The Board ruled that the second termination was in violation of the

60-day investigation rule in La. R.S. 40:2531(B)(7) and was an absolute

nullity.1 Daughtrey was ordered reinstated and made whole.

1
La. R.S. 40:2531(B)(7) was amended in 2021 to extend the period from 60 days
to 75 days.
3

On December 10, 2020, the City filed a notice of appeal with the

district court from the Board’s December 9, 2020 ruling. It heard the matter

on June 30, 2021. It concluded that the Board acted in good faith for cause

on the 60-day issue as the second termination was imposed beyond the 60-

day limit in La. R.S. 40:2531(B)(7). The district court also found that the

unpaid leave was the initial discipline and the only discipline that could be

rendered by the SPD against Daughtrey under these circumstances. The

court rendered judgment affirming the Board’s ruling overturning

Daughtrey’s second termination.

The City separately appealed the judgments rendered by the district

court. Those appeals have been consolidated.

DISCUSSION

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. La. R.S. 33:2501(E)(1).

Review by the district court 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. La. R.S. 33:2501(E)(3).

The Board’s decision will not be overturned unless it is manifestly

erroneous or arbitrary and capricious. McCoy v. City of Shreveport, 42,662

(La. App. 2 Cir. 12/5/07), 972 So. 2d 1178.
4

La. R.S. 40:2531(B) contains the minimum standards which must be

followed when a police officer faces an administrative investigation which

could result in possible disciplinary action, demotion, or dismissal. These

standards are otherwise known as the Police Officer Bill of Rights. City of

Shreveport v. Shreveport Municipal Fire, 52,838 (La. App. 2 Cir. 8/14/19),

276 So. 3d 1154.

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

In its appeal of the first judgment, the City argues that the district

court erred in: (1) finding the unpaid leave was discipline such that the first

termination was an impermissible second disciplinary action; (2)

determining the Board’s reversal of Daughtrey’s termination was made in

good faith for cause; and (3) reinstating his unpaid leave.

In its second appeal, the City argues that the district court erred in

finding: (1) the second termination was a second disciplinary action for a

single offense, and (2) the Board acted in good faith for cause when it

determined that the second termination violated La. R.S. 40:2531.

The City contends that the Board’s own rule establishes that unpaid

leave is not a disciplinary action if there is a possibility that the employee

may be indicted for a crime. The City notes Chief Raymond was still

considering criminal charges against Daughtrey at the time that he was

placed on unpaid leave. We disagree with the City’s interpretation of the

rule in question.

5

Each Board may adopt and execute rules, regulations, and orders

necessary or desirable effectively to carry out the provisions of the

Municipal Fire and Police Civil Service Law and shall do so when expressly

required by it. La. R.S. 33:2478. Rules adopted under the authority of that

section shall have the force and effect of law. Id.

La. R.S. 33:2497 directs the Board to adopt rules to provide for leaves

of absence in the various classes of the classified service. Such rules shall

provide for annual vacation and sick leave with pay and special leave with or

without pay. Id.

Subpart C, Section 7 of the Board’s Rules and Regulations sets forth

what SPD is to follow when placing an officer on departmental leave. It

states:

Subpart C - Leaves of Absence
.....
Section 7. Departmental Leave

(a) The purpose of these rules is to make provision for the
possibility that a classified employee may be indicted for a
crime. As used herein, the term “indictment” is intended to
include not only formal indictment by a grand jury but also a
bill of information or other procedure instituting a criminal
prosecution and filed by a law enforcement official.

(b) When an employee is charged with a felony he shall, and if
a misdemeanor he may, be immediately relieved of duty and
placed on “departmental leave” for up to one week at full pay
and with continuing seniority. This “automatic” one week leave
has these purposes:
(1) It will allow the employee some time to help his family
adjust to the situation, to investigate the charges, to employ an
attorney and, hopefully, get the charges dropped or dismissed if
he can demonstrate to the proper authorities that they should be
dropped or dismissed.
(2) It will serve to reassure the people of Shreveport that a
criminal matter involving one of their public safety officers is
under control and being handled expeditiously.
(3) It will allow the appointing authority time to have the matter
investigated carefully and deliberately before he has to decide
how best to handle it over the long term. It will also permit his
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long-term decision to be made out of the immediate context of
the publicity that usually results from such indictments.
(4) By operating “automatically” this procedure should
minimize any prejudicial effect on the criminal proceeding that
special personnel action might otherwise have at the time of the
indictment itself.

(c) The following factors should be considered in arriving at an
appropriate course of action in this type of situation:
(1) First consideration should be given to the best interest of the
people of Shreveport, because the fire and police services exist
to protect the public, and the appointing authority is charged
with responsibility for assuring the effectiveness and continuity
of that protection.
(2) Due consideration must also be given, however, to the
employee’s right to be presumed innocent until proven guilty,
because an indictment is only an accusation and not proof of
guilt.
(3) Although an employee may not be “disciplined” just
because he has been “indicted,” he may be subject to
disciplinary action, including termination in a proper case, on
the basis of facts out of which the indictment arose.
(4) The maximum disciplinary suspension period permitted by
law (presently 90 days) may expire before trial on the criminal
charges can he had.
(5) It is possible that some kind of action other than
“disciplinary” may be required by the public interest if the fact
that an officer is under indictment impairs his effectiveness to
function in his official capacity under the circumstances of a
particular case.
(6) Ultimate conviction, or a guilty or no contest plea, may
justify disciplinary action in and of itself, depending upon the
circumstances of a particular case.

(d) Nothing herein is intended to restrict or limit the appointing
authority’s management of the fire and police departments as he
determines to be in the public interest in the exercise of his
executive responsibilities under applicable laws. In the case of
an indicted employee, the following personnel actions may be
in the public interest:
(1) If the facts warrant immediate disciplinary action, the
employee may be terminated or suspended for up to the
maximum period permitted by law. If the criminal charges are
still pending at the end of a disciplinary suspension period,
some other non-disciplinary action may then be required by the
public interest depending upon the circumstances and public
attitudes in a particular case.
(2) A decision on disciplinary action may be deferred until after
the criminal charges have been resolved, either because it is felt
that to proceed under the Municipal Fire and Police Civil
Service Law might prejudice the criminal trial or because for
7

some other reason the appointing authority considers this
course of action to be in the public interest. In this case, again,
some kind of non-disciplinary action may be necessary in the
public interest while the criminal charges are pending.
(3) An employee not under disciplinary suspension but still
under indictment may be returned to his regular duties pending
resolution of the criminal charges, but only if the appointing
authority determines that he can function effectively in his
official capacity under the circumstances. Alternatively, such
employee may be assigned to special duties that he can
effectively perform until the criminal charges are resolved, in
which case he would normally continue to draw his regular pay.
However, if the nature of the charges and the impact of
resulting publicity on the general public are such as to make it
necessary in the public interest that the employee be relieved of
duty while under indictment, the employee may be placed on
“extended departmental leave” until the criminal proceedings
have been resolved.

On such a leave the employee may draw full pay, reduced pay
or no pay as the appointing authority may determine to be
appropriate from time to time under the facts and circumstances
of the particular case. Such a leave, being required in the public
interest, shall not be considered “disciplinary action”
against the employee, and seniority will continue to accrue
during the leave.

Civil Service rules must be construed according to the rules of

interpretation applicable to legislation. King v. LSU Health Sciences Center,

03-1138 (La. App. 1 Cir. 4/2/04), 878 So. 2d 544.

Regarding the interpretation of statutes, the Louisiana Supreme Court

stated in M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371, p. 13 (La. 7/1/08),

998 So. 2d 16, 27:

The starting point in the interpretation of any statute is the
language of the statute itself. “When a law is clear and
unambiguous and its application does not lead to absurd
consequences, the law shall be applied as written and no further
interpretation may be made in search of the intent of the
legislature.” However, “when the language of the law is
susceptible of different meanings, it must be interpreted as
having the meaning that best conforms to the purpose of the
law.” Moreover, “when the words of a law are ambiguous, their
meaning must be sought by examining the context in which
they occur and the text of the law as a whole.”

8

Citations omitted.

However, we are mindful that Section 7 is essentially a penal rule as it

presents the possibility of deprivation of property. Under the rule of lenity,

where there is any doubt as to the interpretation of a criminal or civil penal

statute, including the penalties imposed by those statutes, any doubt in the

construction of a penal statute must be resolved with lenity and in favor of

the person subject to the fine or penalty. Bd. of Ethics in Matter of

Cartesian Company, Inc., 16-1556 (La. App. 1 Cir. 10/12/17), 233 So. 3d 9;

Ellis v. Louisiana Bd. of Ethics, 14-0112 (La. App. 1st Cir. 12/30/14), 168

So. 3d 714, writ denied, 15-0208 (La. 4/17/15), 168 So. 3d 400.

As stated by the Louisiana Supreme Court in Gibbs Const. Co., Inc. v.

State, Dept. of Labor, 540 So. 2d 268, 269 (La. 1989):

[S]tatutes which authorize the imposition of a penalty are to be
strictly construed. We will not construe penal statutes as
extending powers not authorized by the letter of the law even if
such powers would be arguably within its spirit. We have
specifically applied this rule in the area of administrative law.

Section 7 concludes with a paragraph (“paragraph at issue”)

containing the statement that “[s]uch a leave, being required in the public

interest, shall not be considered ‘disciplinary action’ against the

employee[.]” We interpret this paragraph as not being a standalone

provision, but rather as applying to subsection (d) only. If it were to apply to

subsections (a) to (c) as well, then subsections (a) to (d) would be numbered

as subsections (a) to (d) under a paragraph (1) and the paragraph at issue

would be a standalone paragraph under a paragraph (2). Furthermore, the

paragraph at issue begins by stating, “On such a leave the employee may

draw full pay, reduced pay or no pay . . . .” This would obviously not apply

9

to subsection (b), which references an employee being placed on leave for

up to one week at full pay following being charged with a crime.

Now that we have determined that the paragraph at issue applies to

subsection (d) only, we must next determine whether the City was

proceeding under subsection (d) when it placed Daughtrey on unpaid leave.

Our reading of subsection (d) is that it is triggered only after an officer is

indicted. Subsection (d) is reproduced below with our emphasis added:

(d) Nothing herein is intended to restrict or limit the appointing
authority’s management of the fire and police departments as he
determines to be in the public interest in the exercise of his
executive responsibilities under applicable laws. In the case of
an indicted employee, the following personnel actions may be
in the public interest:
(1) If the facts warrant immediate disciplinary action, the
employee may be terminated or suspended for up to the
maximum period permitted by law. If the criminal charges are
still pending at the end of a disciplinary suspension period,
some other non-disciplinary action may then be required by the
public interest depending upon the circumstances and public
attitudes in a particular case.
(2) A decision on disciplinary action may be deferred until after
the criminal charges have been resolved, either because it is felt
that to proceed under the Municipal Fire and Police Civil
Service Law might prejudice the criminal trial or because for
some other reason the appointing authority considers this
course of action to be in the public interest. In this case, again,
some kind of non-disciplinary action may be necessary in the
public interest while the criminal charges are pending.
(3) An employee not under disciplinary suspension but still
under indictment may be returned to his regular duties pending
resolution of the criminal charges, but only if the appointing
authority determines that he can function effectively in his
official capacity under the circumstances. Alternatively, such
employee may be assigned to special duties that he can
effectively perform until the criminal charges are resolved, in
which case he would normally continue to draw his regular pay.
However, if the nature of the charges and the impact of
resulting publicity on the general public are such as to make it
necessary in the public interest that the employee be relieved of
duty while under indictment, the employee may be placed on
“extended departmental leave” until the criminal proceedings
have been resolved.

10

Section 7 presents a broad definition of indictment to include even a

“procedure instituting a criminal prosecution and filed by a law enforcement

official.” Nevertheless, no criminal prosecution was ever instituted against

Daughtrey. The consideration of criminal charges is not an indictment as

contemplated by Section 7. As such, his placement on unpaid leave was not

under subsection (d) of Section 7. Therefore, it would be considered

disciplinary action.

Suspension without pay is a disciplinary action. See La. R.S.

33:2500(B). The City contends that suspension without pay under Section 7

is not a suspension because the paragraph at issue provides that seniority

will accrue. This contention is without merit as the paragraph at issue is not

applicable in this matter since its application is limited to subsection (d).

The result would be the same even if Section 7 were not strictly

construed and the paragraph at issue applied to Section 7 in its entirety. The

only part of Section 7 in which the possibility of indictment instead of an

actual indictment is mentioned is in the opening sentence of subsection (a):

“The purpose of these rules is to make provision for the possibility that a

classified employee may be indicted for a crime.” In contrast, throughout

other subsections of Section 7 are references to an indictment that has

already occurred. We again note the broad definition given to indictment in

Section 7.

Subsection (b) gives the SPD the authority to place an officer on leave

with pay for a week after the officer is charged with a crime. It reads, with

our emphasis:

(b) When an employee is charged with a felony he shall, and if
a misdemeanor he may, be immediately relieved of duty and
placed on “departmental leave” for up to one week at full pay
11

and with continuing seniority. This “automatic” one week leave
has these purposes:
(1) It will allow the employee some time to help his family
adjust to the situation, to investigate the charges . . . get the
charges dropped or dismissed if he can demonstrate to the
proper authorities that they should be dropped or dismissed.
.....
(4) By operating “automatically” this procedure should
minimize any prejudicial effect on the criminal proceeding that
special personnel action might otherwise have at the time of the
indictment itself.

Subsection (c) offers guidance to the City when an officer has been

charged with a crime. It states, with our emphasis added:

(c) The following factors should be considered in arriving at an
appropriate course of action in this type of situation:
.....
(2) Due consideration must also be given, however, to the
employee’s right to be presumed innocent until proven guilty,
because an indictment is only an accusation and not proof of
guilt.
(3) Although an employee may not be “disciplined” just
because he has been “indicted,” he may be subject to
disciplinary action, including termination in a proper case, on
the basis of facts out of which the indictment arose.
(4) The maximum disciplinary suspension period permitted by
law (presently 90 days) may expire before trial on the criminal
charges can he had.
(5) It is possible that some kind of action other than
“disciplinary” may be required by the public interest if the fact
that an officer is under indictment impairs his effectiveness . . . .
(6) Ultimate conviction, or a guilty or no contest plea, may
justify disciplinary action in and of itself, depending upon the
circumstances of a particular case.

The City argues in the alternative that even if the placement of

Daughtrey on leave without pay was a disciplinary action, this action was

done contrary to the minimum standards found in La. R.S. 40:2531(B),

making his placement on unpaid leave an absolute nullity regardless of

whether an appeal was filed regarding this action. The City further argues

that with the initial discipline being an absolute nullity and considered never

to have occurred, the City was placed in the same position it had been in on

12

May 26, 2020, and free to initiate proceedings to terminate Daughtrey as the

initial disciplinary action.

The City maintains that it is well settled that a judgment or order that

is an absolute nullity may be challenged at any time. However, what is

being attacked by the City is not a court judgment or order, but an action

taken by a party, the City itself, that was later ratified then revoked by the

Board. See Johnson v. Louisiana Dept. of Public Safety and Corrections,

19-1244 (La. App. 1 Cir. 5/11/20), 304 So. 3d 426, writ denied, 20-00839

(La. 12/8/20), 306 So. 3d 435 (where the appellate court noted that the

plaintiff was not attempting to nullify a judgment of a court in the judicial

branch, but instead was attempting to have the judicial branch nullify a final

disciplinary action of a department of the executive branch).

The Board ruled at the September hearing that the SPD failed to meet

the minimum standards, which made the process an absolute nullity. This

was based on the SPD placing Daughtrey and the other officers on unpaid

leave without notice or a predisciplinary conference. However, the City

cannot benefit from its own failure in denying Daughtrey the minimum

standards guaranteed to him under La. R.S. 40:2531. The minimum

standards set forth in the Police Officer Bill of Rights, as well as the

nullification clause within La. R.S. 40:2531, are for the benefit of officers,

not to give the appointing authority a second chance after it fails to protect

an officer’s rights when seeking to discipline an officer.

For support of its argument that subsequent discipline is allowed when

earlier discipline is declared an absolute nullity, the City cites Ouachita

Parish Police Jury v. Ouachita Parish Fire Protection Dist. No. 1 Civil

13

Service Bd., 46,480, pp. 6-7 (La. App. 2 Cir. 9/21/11), 72 So. 3d 987, 992,

where this Court stated:

Since the police jury did not comply with La. R.S. 33:2181, the
disciplinary actions taken against Odom are absolutely null and
deemed to never have existed. However, after a careful review
of La. R.S. 33:2181, et seq., also known as the Firefighters Bill
of Rights, we fail to find any provision prohibiting the police
jury from reinstituting an investigation of this matter.
Additionally, since this case involves a civil matter, a new
investigation regarding Odom’s conduct would not constitute
double jeopardy. Chief Hemphill can initiate a second
investigation regarding Odom’s actions.

Citations omitted.

Ouachita Parish can be easily distinguished from the matter at hand.

The fire captain, who was originally placed on administrative leave with

pay, appealed his termination to the civil service board, which overturned his

termination. In contrast, Daughtrey accepted his original discipline of

unpaid leave. In his appeal letter to the Board, Daughtrey argued that he

was already disciplined when he was placed on unpaid leave, and he could

not be punished a second time for the same offense. He also argued for

reversal of his termination on the grounds that the investigation and

termination were done in violation of La. R.S. 40:2531(B).

Daughtrey’s attorney clearly stated numerous times at the September

9 hearing that Daughtrey was not appealing the unpaid suspension but was

appealing the termination. Taking the position that the termination was an

absolute nullity, Daughtrey’s counsel sought reinstatement from the Board

with back pay to the date of termination, not the date that he was placed on

unpaid leave. The City contended at that hearing that arguments concerning

the notice for leave without pay and whether leave without pay was a proper

disciplinary action could not be raised before the Board because Daughtrey

14

had not timely appealed after the City placed him on unpaid leave. More

specifically, counsel for the City told the Board that “any issues concerning

the Bill of Rights, leave without pay should not be heard by this Board,

should not be ruled on by this Board, because they did not appeal. All they

appealed was the termination.” The City’s alterative argument is without

merit.

Because the placement of Daughtrey on unpaid leave was a

disciplinary action, the subsequent terminations were impermissible

additional disciplinary actions for the same offense. The trial court did not

err in upholding the Board’s reversals of the two terminations.

CONCLUSION

For the foregoing reasons, the judgments are affirmed. Appeal costs

of $6,034.61 are assessed to the City of Shreveport.

AFFIRMED.

15