Could Hammond discipline an officer for refusing questions in an investigation that violated Louisiana's officer-rights law?

Plain-English summary

Hammond asked whether it could separately discipline an officer for refusing to answer questions during an administrative investigation that the city later found did not meet statutory minimum standards. In this November 2013 opinion, the AG said it could not. La. R.S. 40:2531(C) barred adverse action arising from an investigation that lacked complete compliance with the officer-rights standards.

The police department had a rule requiring officers to answer work-related questions. The AG said that rule could support discipline for refusal when the initial investigation met the statute's standards. It did not override the statute when the initial investigation was deficient.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Police officers

The opinion treated the statute's investigation safeguards as a condition for discipline based on refusal to answer. It did not hold that an officer could refuse questions in an investigation that complied with the statute.

Police departments

The AG said Hammond's internal cooperation rule could not justify discipline based on refusal during a deficient investigation. It expressly allowed discipline under that rule when the initial administrative investigation met statutory minimum standards.

Common questions

Could Hammond discipline the officer for refusing questions in the deficient investigation?

The AG said no. It read La. R.S. 40:2531(C) as prohibiting discipline when the investigation did not meet the required standards.

Did the opinion invalidate the police department's cooperation rule?

No. The AG said the rule could still be enforced if the underlying administrative investigation complied with the statutory safeguards.

What kinds of safeguards did the opinion discuss?

It listed notice of the investigation, a full recording, reasonable interview conditions, access to counsel, and statutory time limits among the minimum standards.

Background and statutory framework

La. R.S. 40:2531 set minimum standards for administrative investigations that could result in police discipline. The AG explained that the Legislature added an express consequence for noncompliance after an earlier Louisiana Supreme Court decision had found no such consequence in the previous statutory text. The opinion applied that later language to Hammond's proposed separate charge for refusal to answer.

Citations

• La. R.S. 40:2531: officer investigation standards and consequence for noncompliance.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/13-0146

Original opinion text

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DEPARTMENT OF JUSTICE
P.O. BOX 94005
BATON ROUGE
70804-9005
JAMES D. "BUDDY" CALDWELL
ATTORNEY GENERAL

November 20,2013
OPINION 13-0146

60 LAW OFFICERS- Authority and Jurisdiction

La. RS. 40:2531

The city of Hammond may not discipline a police officer for his refusal to answer questions during a civil administrative
Mr. Mayson H. Foster
investigation which failed to comply with the minimum standards
mandated by La. RS. 40:2531 (B), otherwise known as the police
Mayor, City of Hammond
officer's bill of rights.
Post Office Box 2788
Hammond, LA 70404

Dear Mayor Foster:

Our office received your request for an opinion on whether it is permissible for the city of Hammond to discipline a police officer for his refusal to answer questions during an administrative investigation of his conduct when the city later determines that the investigation did not comply with the minimum standards set forth in La. R.S. 40:2531.
Louisiana Revised Statute 40:2531, also known as the police officer's bill of rights, applies during administrative investigations and states that when certain types of police employees or law enforcement officers, including municipal police officers, are under administrative investigation which could result in disciplinary action, demotion, or dismissal, the minimum standards set forth in La. R.S. 40:2531 (B) shall apply. The minimum standards applicable during an investigation include:

• the employee or officer being investigated must. be informed at the commencement of the interrogation of the nature of the investigation, and the identity and authority of the person conducting the investigation, as well as the identity of all persons present during the interrogation;
• the employee or law enforcement officer must be permitted to make notes;
• the interrogation must be for a reasonable period of time and must allow for reasonable periods for rest and personal necessities;
• the interrogation must be recorded in full, and the transcript available to the employee or officer upon written request;
• the employee or officer has the right to be represented by counsel and shall be granted up to 30 days to secure representation, during which time all questioning must be suspended;
• the employee or officer's representative or counsel must be allowed to offer advice to the employee or officer and make statements on the record regarding any questions asked;

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OPINION 13·0146
Mr. Mayson H. Foster
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• no statement made by the employee or officer during the course of the administrative investigation is admissible in a criminal investigation;
• investigations must be conducted and completed within the time limits set forth in La. R.S. 40:2531.

In Marks v. New Orleans Police Department, the Louisiana Supreme Court considered whether the pre-amendment version of La. R.S. 40:2531 required dismissal of a disciplinary action for failure to comply with the statutory minimum standards. 1 The court noted that the statute did not contain a consequence for noncompliance and held that dismissal of the disciplinary action was not required. In response, the Louisiana Legislature amended La. R.S. 40:2531 by Act 258 of the 2007 Louisiana Legislative Session to add such a consequence for failure to comply with the statutory minimum standards, which is codified in La. R.S. 40:2531 (C):

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.

The policies and procedures of the Hammond Police Department require cooperation with an administrative investigation. Order 107, Rule VI (8) of the Hammond Police Department Disciplinary Code states:

[p]rior to an interview concerning allegations of administrative violations, the officer shall be advised as follows:
1. The officer can be required to answer all questions directly related to the performance of his official duties or fitness for office;
2. Refusal to comply with an order to answer such questions is a violation of department rules which may subject the officer to further discipline up to and including dismissal.

You have asked whether a police officer may be subject to a separate disciplinary action for his refusal to answer questions during an administrative investigation which did not meet the minimum standards set forth in La. R.S. 40:2531 (8). Although Order 107 Rule VI (8) allows an officer to be disciplined for his refusal to comply with an order to answer questions in an administrative investigation, such discipline is prohibited by La. R.S. 40:2531 (C) if the investigation failed to meet the required minimum standards of La. R.S. 40:2531 (B). Thus, it is the opinion of this office that the city may not discipline a police officer for his refusal to answer questions during an administrative investigation which failed to comply with the minimum standards mandated by La. R.S.

1 Marks v. New Orleans Police Dep't. 06·0575 (La. 11/29/06).943 SO.2d 1028,1032-1036; See also La. Atty. Gen. Op. No. 08~0052.

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OPINION 13-0146
Mr. Mayson H. Foster
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40:2531 (8). Of course, nothing prevents the city of Hammond from disciplining an officer for a violation of Order 107 Rule VI (8) when the initial administrative investigation meets the minimum standards mandated by La. R.S. 40:2531 (8).

We hope that this opinion has adequately addressed the questions you have submitted. If our office can be of any further assistance, please do not hesitate to contact us.

With best regards,

JAMES D. 118UDDY" CALDWELL

iTliY ews
Assistant Attorney General

JDC: EGA