In Re: Gary D. Scott

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-199

IN RE: GARY D. SCOTT

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 89,481, DIVISION C
HONORABLE JAMES R. MITCHELL, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Marc T. Amy, Judges.

APPEAL CONVERTED TO WRIT. WRIT DENIED.

Brian D. Cespiva
711 Washington Street
Alexandria, LA 71301
(318) 448-0905
COUNSEL FOR DEFENDANT/RESPONDENT:
Leesville Municipal Fire and Police Civil Service Board

Cloyd Benjamin
Law Office of Cloyd Benjamin, Jr.
726-B Third Street
Natchitoches, LA 71457
(318) 352-7575
COUNSEL FOR DEFENDANT/RESPONDENT:
City of Leesville

Aaron L. Green
Vilar & Elliott, LLC
Post Office Box 12730
Alexandria, LA 71315-2730
(318) 442-9533
COUNSEL FOR PLAINTIFF/RELATOR:
Gary Scott

AMY, Judge.

The appellant/relator police officer appealed the City of Leesville Police

Department determination that he was not eligible to continue to receive a physical

fitness incentive pay supplement after he failed to attend a required police fitness

examination. The police officer asserted that the cessation of the incentive pay

constituted discipline and required that the City follow the attendant safeguards of

La.R.S. 40:2531. The City, however, asserted that the police officer could not

appeal the loss of incentive pay as the ineligibility was not disciplinary in nature.

The Civil Service Board agreed, rejecting the police officer‟s claim. The trial court

thereafter affirmed that decision. The police officer re-urges his claim in this

court, seeking the supplemental pay he references as back pay. For the following

reasons, we convert the appeal to an application for supervisory writ and deny the

writ, maintaining the underlying judgment.

Factual and Procedural Background

Sergeant Gary Scott was employed by the City of Leesville Police

Department in November 2013 when he failed to attend a mandatory physical

fitness evaluation. Deputy Chief Beth Westlake described that, in order to promote

the physical fitness of its officers, the Police Department offered incentive pay in

the amount of $1 per work hour for those achieving a certain level of performance

on the physical fitness evaluation, conducted every six months. That pay was

added to the qualifying officer‟s salary. This policy is also reflected in an October

2012 “memo” that Deputy Chief Westlake circulated to the officers regarding the

physical fitness testing. Contained in the record, the memo provides that: “All

Full-Time Patrol Officers to include investigators are required to participate unless

a valid medical waiver is provided. . . . Any officer who passes the Physical Fitness

Test at 20% of their category will receive the $1.00/hour Fitness Pay incentive.”

The “Physical Fitness Requirements” listed thereunder included minimal standards

for a “1.5 Mile Run[,]” “Sit Ups[,]” and “Push Ups[.]”

The record reflects that Sergeant Scott received the attendant physical fitness

pay incentive after successful evaluations and that, in his case, the incentive pay

added $80 to his salary each pay period. Upon receiving a physician‟s excuse

related to a back injury, the physical fitness evaluation was waived, and the

supplemental pay was merely continued. However, according to Deputy Chief

Westlake, Sergeant Scott did not produce any such excuse at the time of the

scheduled November 2013 evaluation. However, Sergeant Scott asserted that he

had verbally been informed that his superior would arrange for him not to

participate in the evaluation. Based on that representation, he asserted, he did not

attend. Deputy Chief Westlake insisted that any such medical waiver was required

to be in writing.

Thereafter, by interoffice memorandum, the Police Department provided

Sergeant Scott with a “Notice of Investigation,” stating that:

This is to notify you that we are initiating an investigation into
incidents involving you in a matter which occurred on November 18
and November 19, 2013. Specifically,

That on November 18, 2013 it was discovered that you had
responded to a call of a Hit and Run on November 1, 2013 at
Vernon Bank (Incident #2013110017) but never completed a
report for the Incident.

That on November 19, 2013 you failed to show for your
Physical Fitness Evaluation. There was a Supervisor Meeting
on October 9, 2013 where dates were provided for the PT Tests
and a Memo was issued as well as an email sent on November

2

4, 2013[1] in reference to the Requirements, Dates, Times and
other information about the Physical Fitness Evaluations. A
reminder Memo and Email were issued on November 14, 2013
with added times due to the colder weather. You failed to
appear as required to any of the dates of the Physical Fitness
Evaluations nor did you provide a Valid Medical Waiver.

This investigation is an opportunity to fully explore what happened,
and to determine if any departmental policies were violated. It is also
our intent to give everyone, including you, an opportunity to be heard.
In many cases, officers are fully exonerated once we have all the facts,
but state law requires us to provide you with this notice prior to
discussing the situation with you if there is a possibility that
disciplinary action could result.

The person conducting this interview will be Inv. Kenneth Pine. I
have enclosed a copy of the Police Officers Bill of Rights for your
review. Our target is to complete this investigation no later than 60
days from today‟s date. If we feel necessary, we will ask the civil
service board to extend this time for an additional 60 days, or we may
see if a voluntary agreement to extend the time is of benefit to both
you and the city. You will be advised of our findings as soon as they
become available. As you know, at any time we question you
regarding this investigation, you may be represented by counsel or
any other representative of your choice. If you wish to exercise this
right, you have up to 30 days within which to secure such
representation. If you choose to take time to secure representation, we
may be talking to other individuals who may have information about
this situation. However, if you are ready to discuss the events to
provide your side of the situation prior to the expiration of the 30
days, please let us know so that we might conclude the investigation
as soon as possible. Otherwise, we will schedule a time at the end of
30 days to discuss your views about what happened. If we have
occasion to speak with you regarding this situation at any time during
the course of the investigation, our conversations will be recorded.
You have an opportunity to obtain a copy of these recordings simply
1
In this regard, various e-mails/memos are contained in the record regarding the physical
fitness evaluation schedule. For example, a November 14, 2013 e-mail from Deputy Chief
Westlake, indicated that:

Due to the cooler weather, Physical Fitness Evaluations will be given at 0800
hours and 1600 hours on Tuesday, November 19 and Thursday, November 21. The tests
will be administered at the LHS Track.

As of this date, only one officer has taken the PT Test. November 19th and
November 21st will be the last days for the PT Test and arrangements need to be made to
be present and participate. All Full-Time Patrol Officers to include Investigators are
required to participate unless a valid medical waiver is provided. Corrections Officers,
D.A.R.E. Officer, Records Clerks, any Part-Time officers, etc. may participate if they
choose. Patrol Officers and Corrections Officers will not take the test while on shift.

3

by making a written request. Should we determine that disciplinary
action may be warranted, you will be advised of a pre-disciplinary
hearing prior to the expiration of the investigation period. It is our
desire to protect your rights while we determine whether or not any
inappropriate actions may have occurred that may compromise the
integrity or impact the efficiency of the Leesville Police Department.

Subsequent to this notice, the Police Department issued a “Counseling

Form,” listing Deputy Chief Westlake as the “Counselor” and noting two reasons

for the counseling as follows:

On November 18, 2013 it was discovered that SGT Scott had
responded to a call of a Hit and Run on November 1, 2013 at Vernon
Bank (Incident #2013110017) but never completed a report for the
incident.

SGT Scott failed to appear as required to any of the dates of the
Physical Fitness Evaluations in November 2013 nor did he provide a
Valid Medical Waiver.

The form included the “Counseled Officer‟s Own Recommendation for

Improvement and/or Comments[,]” and, with regard to the physical fitness

evaluations, provided that: “I, Sgt. Scott, was under the assumption that DC

Westlake knew that I had a medical excuse for the Physical Fitness Evaluation. I

will be more clear on that in the future if needed.” The corresponding

“Counselor‟s Recommendation For Improvement / Future Performance

Expectations[,]” reveals that: “Sgt. Scott has improved on making sure reports are

done in a timely matter and will be sure to make sure he turns in a Valid Medical

Excuse if needed for each Physical Fitness Evaluation.” The “Summary of

Counseling[,]” was reported as: “Sgt. Scott was receptive to the Counseling

Session and has already begun to improve the issues listed above.”

Sergeant Scott did not lodge a complaint regarding the counseling form. In

fact, the form itself, which bears the signatures of both the “counseled officer” and

the “counselor,” indicates that: “This is a Written Counseling only. It is not a

4

Written Reprimand and will not be placed in your Official Personnel File and is

not appealable to the Civil Service Board.” However, in light of the missed

physical fitness evaluation, the City, through the Police Department, ceased paying

the $1 per hour physical fitness incentive pay. Sergeant Scott alleges that he

became aware of that action only upon receiving his pay check, which did not

include the incentive pay.

Through counsel, Sergeant Scott mailed a “Notice of Appeal” to the

Leesville Municipal Fire and Police Civil Service Board (the Civil Service Board),

seeking an appeal of “the disciplinary action taken against him with regard to the

investigation that began on or about November 25, 2013.” He stated therein that

the subject investigation “resulted in two things: (1) a counseling statement (which

is likely not appealable to this Board) and (2) Sgt. Scott‟s rate of pay was reduced.”

He alleged that “[t]his reduction of pay is disciplinary action and is properly

appealable to this Board.” In particular, he alleged that it failed to comply with

“Louisiana Civil Service Law, including the Police Officers Bill of Rights.” He

further referenced La.R.S. 33:2500(D)2 of the fire and police civil service law and

alleged that: “The Appointing Authority failed to furnish Sgt. Scott with a

statement in writing of the action and the complete reasons therefor.” Continuing

with the assertion that cessation of incentive pay constituted discipline, Sergeant

Scott contended that “[t]he City failed to conduct any pre-disciplinary hearing.

And the 60-day time period for the City to complete its investigation has elapsed.”

Sergeant Scott further denied that he had committed “any infraction warranting

2
Louisiana Revised Statutes 33:2500(D) provides: “In every case of corrective or
disciplinary action taken against a regular employee of the classified service, the appointing
authority shall furnish the employee and the board a statement in writing of the action and the
complete reasons therefor.”

5

disciplinary action.” Sergeant Scott asked the Civil Service Board to “reverse the

Disciplinary Action taken against him, and award attorney‟s fees, costs, and any

further relief to which he may be entitled.”

In response to Sergeant Scott‟s request for review, the Civil Service Board

convened a hearing, by which time he was no longer employed with the Police

Department.3 The City asserted at that time that the discontinuation of incentive

pay did not constitute “discipline” and, therefore, there was no basis for the hearing

under La.R.S. 33:2501. At the hearing, the City Administrator, Police Department

officials, and Sergeant Scott testified, offering their view of the discontinuation of

benefits. As he does here, Sergeant Scott suggests that the cessation of incentive

pay constituted a reduction in pay and, therefore, discipline. The City disputed the

characterization of the cessation of the incentive pay as a reduction in salary.

Following executive session, the Civil Service Board denied the requested relief.

Thereafter, Sergeant Scott filed a “Rule to Show Cause” in the Thirtieth

Judicial District Court and styled the pleading as an appeal “from the Leesville

Civil Service Board rendered on April 2, 2014 denying his appeal.” 4 In a

3
In his brief to this court, Sergeant Scott states that he “resigned from the Leesville Police
Department for unrelated reasons.” Accordingly, “the monetary damages in this case are very
limited. Only six pay periods took place from the time Sgt. Scott‟s pay was improperly reduced.
At $80 per pay period, the back pay equals to $480.” (Record citations omitted.)
4
With regard to the appeal of a Civil Service Board decision, La.R.S. 33:2501(E)
provides that:

E. (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.

(2) The appeal shall be taken by serving the board, within thirty
days after entry of its decision, a written notice of the appeal, stating the grounds
thereof and demanding that a certified transcript of the record, or written findings
of facts, and all papers on file in the office of the board affecting or relating to
such decision, be filed with the designated court. The board shall, within ten days,

6

memorandum in support of his appeal, Sergeant Scott attached documentation,

including the “Notice of Investigation,” the Counseling Form, correspondence

from the attorney to the Civil Service Board advancing his position, and the payroll

stubs from the pay periods in question. In opposition, the City filed a Motion for

Summary Disposition, again denying that there was a basis for the appeal since the

cessation of incentive pay did not constitute discipline. The City attached

memoranda from the Police Department regarding the physical fitness

examinations, expired medical excuses that had previously limited Sergeant Scott‟s

work capacity, and the Counseling Form. The City also submitted a written

finding of fact issued by the Civil Service Board.5

Following a hearing, the district court denied Sergeant Scott‟s Rule to Show

Cause for the reasons orally assigned.6

after the filing of the notice of appeal, make, certify, and file the complete
transcript with the designated court, and that court shall thereupon proceed to hear
and determine the appeal in a summary manner.

(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.

5
At the time Sergeant Scott filed his Rule to Show cause in the district court, the Civil
Service Board had not issued a written finding. Sergeant Scott noted the absence of such a
finding. However, that finding was subsequently rendered, with the Civil Service Board
determining that “Sergeant Scott‟s loss of the incentive pay did not constitute a disciplinary
action, rather it was simply a known consequence of failure to participate and successfully
complete scheduled fitness evaluation, or to provide medical documentation which would
constitute a valid waiver of his participation requirement if approved by a supervisor.” It
therefore denied the requested relief.
6
At the close of the hearing, the district court stated:

Well, from my reading of the cases that you both have presented, and as I
have stated and you have stated, I don‟t think there‟s any factual dispute for
whatever reasons Mr. Scott did not take a physical examination or test, and his
pay that had been previous as an incentive for taking and passing to a certain level
the physical fitness test was taken away from him. As it has been pointed out that,
that was basically an automatic procedure that was covered in the policy of the
Leesville City Police. Others who did not take the test or did not pass the test and

7

Sergeant Scott seeks review,7 asserting that:

1. The trial court committed legal error when it failed to find that
the City‟s reduction of Sgt. Scott‟s pay constituted disciplinary
action.

2. The trial court committed legal error when it failed to recognize
that the disciplinary action taken against Sgt. Scott was not
made in good faith and for cause because it violated Louisiana
Civil Service Law, the Police Officers Bill of Rights, and the
Louisiana and United States Constitutions.
3. The trial court committed legal error when it failed to recognize
that the Appointing Authority bears the burden of proof of
proving that the City acted in good faith and for cause when it
disciplined Sgt. Scott.
4. The trial court committed legal error when it upheld the
disciplinary action taken against Sgt. Scott, considering that the
City admitted that it never afforded Sgt. Scott a pre-disciplinary
hearing.
5. The trial court committed legal error when it upheld the
disciplinary action taken against Sgt. Scott, considering that the
City admitted that it failed to provide Sgt. Scott with written
notice of the disciplinary action and complete reasons therefor.
6. The trial court committed legal error when it upheld the
disciplinary action against Sgt. Scott despite the fact that no
infraction was committed.
7. The trial court committed legal error when it affirmed the
Board‟s action, where the Board failed to properly conduct the
hearing and process Sgt. Scott‟s appeal in accordance with
applicable law.

passed that continued to get that pay obviously. I think from my reading of the
cases and there‟s some Supreme Court cases on this as well, that this incentive
pay for being physically fit is not a part of the salary and the loss of that is not a
disciplinary action. As counsel has pointed out in one of the cases the Supreme
Court has defined basically what constitutes disciplinary action as being some
action that has a long term permanent effect that constitutes basically a black
mark on the record of an individual, and they also pointed out that just the loss of
money is not a permanent thing because it could be made back. And I think that‟s
what happened in this case. So, I do not feel that it was a disciplinary action. I‟m
going to deny the action for the appeal.
7
Sergeant Scott filed this matter as an appeal. However, in Miazza v. City of Mandeville,
10-304 (La. 5/21/10), 34 So.3d 849, the supreme court explained that in instances where the
legislature has vested appellate jurisdiction in the district court, a court of appeal lacks
jurisdiction. See, e.g., La.R.S. 33:2501 and La.R.S. 33:2561. As it directed the appellate court
to do in Miazza, we convert this matter to an application for supervisory writ and consider this
matter under this court‟s supervisory authority. See La.Const. art. 5, § 10.

8

Discussion
As can be seen from the factual and procedural history above, as well as the

styling of the assignments of error, the present matter questions whether the

cessation of physical fitness incentive pay constitutes a disciplinary action from

which Sergeant Scott had a right of appeal. At the commencement of the district

court proceeding, the trial court noted that it had been asked to resolve “whether or

not the plaintiff has a right to an appeal of a Civil Service Board Ruling.” Counsel

for Sergeant Scott confirmed that presentation of the issue at trial and, in this court,

all of the assigned errors relate to that underlying contention.

The foundational statutory authority related to employees of municipalities

and parishes, such as here, reveals the importance of the central inquiry regarding

discipline. Within certain parameters, and for specified reasons, La.R.S. 33:25608

8
The record contains references to the statutory provisions contained within La.R.S.
33:2471, et seq. (pertaining to the fire and police civil service law for municipalities between
13,000 and 250,000) and La.R.S. 33:2531, et seq. (pertaining to the fire and police civil service
law for small municipalties and for parishes and fire protection districts). See also City of
Bossier City v. Vernon, 12-78 (La. 10/16/12), 100 So.3d 301 (wherein the supreme court
discusses the legislative history of the municipal fire and police civil service system and the
provisions applicable to variously-sized municipalities). The record does not otherwise contain
indication of the specific provisions applicable to Leesville. However, noting the similar
wording of previously-referenced La.R.S. 33:2500 and 33:2560, we reference La.R.S. 33:2560
for discussion purposes as it is the standard advanced by Sergeant Scott in his appellant‟s brief to
this court. Entitled “Corrective and disciplinary action for maintaining standards of service” for
those within the fire and police civil service for small municipalities, La.R.S. 33:2560 provides.

A. The tenure of persons who have been regularly and permanently inducted
into positions of the classified service shall be during good behavior. However, the
appointing authority may remove any employee from the service or take such disciplinary
action as the circumstances warrant in the manner provided below, for any one of the
following reasons:

1. Unwillingness or failure to perform the duties of his position in a
satisfactory manner.
2. The deliberate omission of any act that it was his duty to perform.
3. The commission or omission of any act to the prejudice of the departmental
service or contrary to the public interest or policy.
4. Insubordination.
5. Conduct of a discourteous or wantonly offensive nature toward the public
or toward any municipal officer or employee, and any dishonest, disgraceful or immoral
conduct.

9

provides that “the appointing authority may remove any employee from the

service, or take such disciplinary action as the circumstances warrant[.]”

(Emphasis added.) Here, Sergeant Scott sought an “appeal” from the cessation of

the physical fitness incentive pay. However, La.R.S. 33:2561, entitled “[a]ppeals

6. Drinking vinous or spirituous liquors while on duty or reporting for duty
while under the influence of intoxicating beverages.
7. The use of intoxicating liquors or habit forming drugs, liquids or
preparations to an extent which precludes the employee from performing the duties of his
position in a safe or satisfactory manner.
8. The conviction of a felony.
9. Falsely making a statement of any material fact in his application for
admission to any test for securing eligibility or appointment to any position in the
classified service, or practicing or attempting to practice fraud or deception in any test.
10. Using or promising to use his influence or official authority to secure any
appointment to a position within the classified service as a reward or return for partisan
or political services.
11. Soliciting or receiving any money or valuable thing from any person for
any political party or political purpose.
12. Inducing or attempting to induce, by threats of coercion, any person
holding a position in the classified service to resign his position, take a leave of absence
from his duties or waive any of his rights under the provisions of this part or of the rules
of the board.
13. The development of any defect or physical condition which precludes the
employee from properly performing the duties of his position, or the development of any
physical condition that may endanger the health or lives of fellow employees.
14. The willful violation of any provision of this Part or of any rule, regulation
or order adopted under its authority.
15. Any other act or failure to act which the board deems sufficient to show
the offender to be an unsuitable or unfit person to be employed in the fire and police
service.

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

C. Although it is incumbent upon the appointing authority to initiate
corrective or disciplinary action, the board may, and shall upon the written request of any
qualified elector of the state which sets out the reasons therefor, make an investigation of
the conduct and performance of any employee in the classified service and, thereupon,
may render such judgment and order action to be taken by the appointing authority. Such
action shall be taken forthwith by the appointing authority.

D. In every case of corrective or disciplinary action taken against a regular
employee of the classified service, the appointing authority shall furnish the employee
and the board a statement in writing of the action and the complete reasons therefor.

10

by employees to the board” provides for such review for “[a]ny regular employee

in the classified service who feels that he has been discharged or subjected to any

corrective or disciplinary action without just cause[.] That employee “may, within

fifteen days after the action, demand in writing, a hearing and investigation by the

board to determine the reasonableness of the action.” Id. Compare La.R.S.

33:2501.

Additionally, Sergeant Scott references La.R.S. 40:2531, which affords

certain minimal standards to police officers under “investigation[.]”9 Significantly,

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

9
In this regard, La.R.S. 40:2531 provides that:

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

(1) The police employee or 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 police employee or law enforcement
officer shall be allowed to make notes.

(2) Any interrogation of a police employee or 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 police employee or
law enforcement officer.

(3) All interrogations of any police employee or law enforcement officer in
connection with the investigation shall be recorded in full. The police employee or 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)(a) The police employee or law enforcement officer being questioned,
whether as a target or as a witness in an administrative investigation, shall have the right
to be represented by counsel, other representative, or both, of the police employee or law
enforcement officer's choice.

(b) The police employee or law enforcement officer shall be granted up to
thirty days to secure such representation, during which time all questioning shall be
suspended.

(c) The police employee or law enforcement officer‟s representative or
counsel shall be allowed to offer advice to the employee or officer and make statements

11

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.
In short, Sergeant Scott asserts that he was not provided the minimal safeguards of

La.R.S. 40:2531 and, per Paragraph C, the discontinuation of the physical fitness

incentive pay must be considered an absolute nullity. Finding no merit to Sergeant

Scott‟s argument, we do not disturb the ruling of the trial court.

In his brief, Sergeant Scott notes that La.R.S. 33:2561(A) provides for the

filing of a request for a civil service board hearing by “[a]ny regular employee in

the classified service who feels that he has been . . . subjected to any corrective or

on the record regarding any question asked of the employee or officer at any interrogation,
interview, or hearing in the course of the investigation.

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

....

(7) 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.

12

disciplinary action[.]” As, he argues, he “„feels‟ like he has been subjected to

corrective or disciplinary action,” the Civil Service Board erred in determining that

he had been subjected to no disciplinary action. However, this argument confuses

the purpose of the statute and the rulings of the Civil Service Board and the trial

court. Sergeant Scott did, in fact, request a hearing and was provided with that

hearing by the Civil Service Board as provided by La.R.S. 33:2561. In turn, he

again received an appeal of that ruling by the trial court pursuant to La.R.S.

33:2561(E). 10 Both, however, made the ultimate determination that he had not

been disciplined in the cessation of the physical fitness incentive pay. Note, that it

is only when an officer is under “investigation” that he or she is afforded the

minimal safeguards of La.R.S. 40:2531. If those safeguards are not met during that

investigation, “any discipline, demotion, dismissal, or adverse action of any sort” is

a complete nullity. Here, there was no investigation specific to the discontinuation

of the physical fitness incentive pay.

Undoubtedly, the City included the missed physical fitness evaluation in the

“Notice of Investigation.” However, that investigation did not encompass the

missed physical fitness evaluation in the context of the incentive pay. Instead,

Deputy Chief Westlake explained before the Civil Service Board identified that

there were “two separate issues” surrounding the missed physical fitness

evaluation. Deputy Chief Westlake explained that:

10
Sergeant Scott asserts both in the transcript of the trial court hearing and in his brief to
this court that the Civil Service Board hearing was not properly conducted before a court reporter
and transcribed so as to ensure appropriate review by the trial court. At the trial court hearing, he
challenged the City‟s introduction of a court-reporter transcribed recording of the subject Civil
Service Board hearing. While Sergeant Scott suggests that the transcript is deficient in this
regard, La.R.S. 33:2561(B)(3) clearly provides that: “The board shall not be required to have the
testimony taken and transcribed, but either the employee or the appointing authority may, at their
own expense, make the necessary arrangements therefor.”

13

[Sergeant Scott] was referred to the internal affairs investigation
because of this policy that - - it is mandated that they participate in - -
separate from incentive pay. They have to, as part of their job duties,
at least come out twice a year for performance evaluation so we can
see their fitness level.
If you happen to pass that test at 20 percent, then you will
receive fitness pay, which is a separate issue. He failed to obey the
mandatory thing to show up and take it or provide the medical waiver.
So that is why the internal affairs investigation went on was because
he failed to follow the policy of showing up for the physical fitness
evaluation to be evaluated.
Upon questioning by counsel for the City, Deputy Chief Westlake, denied that

Sergeant Scott was ultimately disciplined for violation of the policy prompting the

notice of investigation. Further questioning revealed that:

Q. Let‟s stop there for a moment. Hold that point. Even though he
violated policy by failure to show up, per policy, was he
disciplined for that?
A. He was not disciplined for that. He received a counseling
statement for failing to show up to a mandatory physical fitness
test and failing to provide the proper documentation.
Q. In other words, he was given a slip that said, look, you didn‟t do
this?
A. Right.
Q. You need to do this?
A. Correct.
Q. And nothing - - and that was not discipline?
A. That‟s correct.
Q. Clearly, he could have been disciplined I guess for violation.
Presumably, he could have been gone through a full-blown
process of - - the disciplinary process for violation, arguably,
right?
A. Right.
Q. That didn‟t happen?
A. No.
Q. It stopped with the counseling?
A. Correct.

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As set forth above, the counseling letter, signed by Sergeant Scott, indicated that:

“This is a Written Counseling only. It is not a Written Reprimand and will not be

placed in your Official Personnel File and is not appealable to the Civil Service

Board.” Police Chief Greg Hill confirmed in his testimony that, even on the issue

of the violation of the underlying policy, he did not feel that discipline was

appropriate and had referred the matter back to Sergeant Scott‟s supervisor for

counseling only.

Deputy Chief Westlake clearly explained that the investigation, which

ultimately led only to the counseling letter described above, was due to the alleged

violation of the policy. The investigation did not relate to whether Sergeant Scott

was eligible for the continued availability of incentive pay. 11 In this case, he

simply was not eligible for that additional incentive as he did even take the test, let

alone meet the required benchmarks or provide adequate medical documentation

(which Deputy Chief Westlake explained he did not). In this light, it is clear that

there was no investigation leading to “any discipline, demotion, dismissal, or

adverse action of any sort” that could be considered a nullity pursuant to La.R.S.

40:2531. Simply, Sergeant Scott was no longer eligible for an incentive-oriented

supplement to his salary. Accordingly, we find no error in the rejection of

Sergeant Scott‟s claim.
11
Louisiana Revised Statutes 33:2586 (emphasis added) provides that:

The fire and police civil service board of any municipality, parish, or fire protection
district with a classified fire and police civil service system established as provided in
R.S. 33:2471 or 2531 may establish a plan for awarding incentive pay to classified
employees. The plan shall include the criteria for eligibility for incentive pay, the method
by which classified employees shall be reviewed for eligibility, and how such eligibility
shall be determined. Determination of the amount of incentive pay and which classified
employees are to receive incentive pay shall be made by the appointing authority for the
municipality, parish, or fire protection district subject to available funds budgeted for
such purpose. The incentive pay awarded under the provisions of this Section shall be in
addition to any other salary the classified employee is entitled to receive from the
municipality, the state, or any other governmental entity.”

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DECREE

For the foregoing reasons, the appeal of the appellant, Gary D. Scott, is

converted into an application for supervisory writ and the writ is denied. Costs of

this appeal are assessed to the appellant / relator, Gary D. Scott.

APPEAL CONVERTED TO WRIT. WRIT DENIED.

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