In re Scott

175 So. 3d 1058, 15 La.App. 3 Cir. 199, 2015 La. App. LEXIS 1967, 2015 WL 5833935

Opinion

AMY, Judge.

The appellani/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, 2018 where dates were provided for the PT Tests and a Memo was issued as well as an email sent on November |¾4, 2013

Footnotes

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[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 ap 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 pby 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 | ¡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-disci- plinary 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 ^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 17memorandum 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

IsSergeant 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.

| ^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 |inprovides that “the appointing authority may remove any employee from the service, or take sitch 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. 38:2561, entitled “[ájppeals l^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 referencés La.R.S. 40:2531, which affords certain minimal standards to police officers under “investigation[.]”⁹ . Significantly, La.R.S. 40:2531(0) provides that:

h {.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 11Sdisciplinary 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. 38:2561. 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:

114[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 be 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.

|1KAs 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.

11fiDECREE

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.

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.