Pre-Disciplinary Hearing Must Precede, Not Follow, Sustaining Of Complaint

Written on 09/02/2022
Will Aitchison

Delandro Washington is a police officer in Shreveport, Louisiana. The Department received a complaint from an individual concerning Washington. Washington and other witnesses were interviewed, and an internal affairs inves­tigator prepared a report with his findings, which did not conclude that the complaints against Washington should be sustained.

The IA report was sent to the chief of police and his senior chain of command with a comments page for Department leadership to complete. The internal af­fairs captain and an assistant chief both concurred with the IA report’s findings that no sustained complaint was warrant­ed. However, the chief and deputy chief disagreed, and the deputy chief sustained one of the charges against Washington. The chief ordered that a Pre-Disciplinary Hearing (PDH) be held.

At the PDH, Washington was advised at the outset that the complaint was already sustained. At the conclusion of the PDH, discipline was imposed in the form of a fine of three-days’ pay. Washington challenged the fine through the Civil Service Board and into the court system.

The Louisiana Court of Appeals found that the City’s actions violated Washington’s due process rights. The Court noted that “the evidence adduced at trial established that previous Department policy and practice was to allow an officer a hearing as to whether the complaint would be sustained. Pam Breedlove, an attorney who previously represented the Civil Service Board as well as officers in numerous cases of discipline, provided un­contradicted testimony that in years past, the issue of whether a complaint would be sustained was determined after a hearing and that the person handling the PDH had authority to sustain the complaint or not.

“Washington had already been found guilty, as a result of the complaint having been ‘sustained,’ before he walked into the PDH. By the Department’s own policy, he could not present evidence that the violation should be classified as anything other than sustained, and the deputy chief had no authority to reverse the police chief’s prior determination. The City ar­gued repeatedly that the IA interrogation provided the officer with either notice or some form of hearing. This argument is without merit.

“As Chief Ben Raymond testified, at the time the officer was being interrogat­ed by IA, there had been no finding of wrongdoing by the Department. Without a finding of wrongdoing by the Depart­ment, regarding what specifically is the officer to be ‘noticed?’ The interrogation is simply a stage in the investigation into a complaint that has been filed; it cannot serve as more than what it is in order to satisfy due process requirements that are lacking elsewhere.

“Washington should have had a PDH before the chief (or his duly designated representative) who could have determined that no discipline was warranted after hear­ing any evidence or argument presented by Washington or his counsel. Simply put, the procedural regimen currently being utilized by the Department fails to provide the officer with a meaningful opportunity to be heard in violation of the Louisiana Constitution.

“Since Washington was not afforded the procedural due process rights to which he was entitled, his discipline is invalid as an absolute nullity.”

Washington v. Shreveport Fire & Police Civil Service Board, 2022 WL 1654146 (La. App. 2022).

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