95-2166 La.App. 4 Cir. 5/29/96, Montegue v. City of New Orleans Fire Dept.

• Decision Date: 29 May 1996
• Citation: 95-2166 La.App. 4 Cir. 5/29/96, Montegue v. City of New Orleans Fire Dept., 675 So.2d 810 (La. App. 1996)
• Parties: 95-2166 La.App. 4 Cir
• Court: Court of Appeal of Louisiana

Page 810

675 So.2d 810

95-2166 La.App. 4 Cir. 5/29/96

Eric MONTEGUE v.CITY OF NEW ORLEANS FIRE DEPARTMENT.

No. 95-CA-2166.

Court of Appeal of Louisiana Fourth Circuit.

May 29, 1996.

Gilbert R. Buras, Jr., New Orleans, for Plaintiff/Appellant.

Marvin E. Robinson, Assistant City Attorney, Annabell H. Walker, Deputy City Attorney, Avis Marie Russell, City Attorney, New Orleans, for Defendant/Appellee.

Before KLEES, JONES and LANDRIEU, JJ.

[95-2166 La.App. 4 Cir. 1] JONES, Judge.

This is an appeal by a former firefighter from his dismissal from the New Orleans Fire Department for the sole reason that he failed a random drug screening procedure by testing positive for the presence of cocaine and marijuana metabolites in his urine.

At the initial hearing of the appellant's termination, the parties stipulated to the basic facts and circumstances surrounding the appellant's termination.More specifically, the parties entered the following stipulations into the record:

Stipulation number one--[T]he appellant was using marijuana and cocaine at the time he was tested, and that is the reason he tested positive.

Stipulation number two--[T]he appellant received notice of the charges and had the opportunity to respond to charges during the Internal Affairs investigation.

Stipulation number three--[S]ubsequent to receiving and having notice of the hearing, the Appellant was terminated and received a termination letter informing him that he was terminated.

[95-2166 La.App. 4 Cir. 2] Stipulation number four--[T]he appellant was terminated pursuant to CAO PolicyNo. 89 regarding substance abuse.¹

Following the various stipulations, the City rested and the appellant took the stand and testified on his own behalf.Appellant admitted that he had been using drugs since he was a teenager.However, he stated no disciplinary actions had ever been taken against him prior to the instant one.

Appellant further testified that when he was interviewed by the Internal Affairs Division of the Fire Departmenthe was only questioned about the effects of using the drugs.He was not questioned about his job performance, promptness on the job or quality of his work.He was not offered the opportunity to undergo drug rehabilitation by his employer.However, he testified that he had undergone rehabilitation on his own.On cross examination, appellant testified that he never sought any rehabilitation prior to being caught because he did not think it was necessary since he had never used drugs on the job and his usage did not affect his job performance.

The appellant argued that the policy which called for immediate termination for any employee who tested positive for drug usage, regardless of any mitigating factors, was an invalid attempt to supersede Rule V, Section 9.15 of the Civil Service Rules which mandated that the appointing authority take disciplinary action after giving deference and consideration to eleven different factors.Appellant argued that neither the disciplinary letter nor the pretermination notice made reference to the factors stated in the Civil Service Rules.Appellant argued that since the policy did not address the eleven factors enumerated in Section 9.15, the policy providing for termination was in violation of law, and the disciplinary action taken against him was thus annullable.

[95-2166 La.App. 4 Cir. 3] The Appointing Authority argued the policy and Civil Service Rules did not conflict, but could be read together and interpreted to coexist with each other.The Appointing Authority maintained that the policy was put into effect with a seal of approval by the Civil Service Commission and was simply a more specific guideline for the Appointing Authority to follow.The Appointing Authority also emphasized the fact that the policy existed for the benefit of the City to provide for a drug-free work force and stressed that the firefighter position was a safety sensitive position, a position which required one to save the lives of others.The Appointing Authority argued that even if Civil Service Rules had been explicitly addressed during the pretermination hearings, the results would have been the same.

After reviewing the transcript of the appellant's hearing, along with all the documentary evidence, the Commission entered an order remanding the plaintiff's case for further hearing on the sole issue of the nature of the Appointing Authority's application of the elements of Rule V, Section 9.15 to the disciplinary action.

On remand the appellant made a continuing objection to the City being given a second chance at carrying the burden of proving its case.The Hearing officer overruled the objection and proceeded with the hearing.

The Appointing Authority called Mr. Darryl J. Delatte, the Deputy Chief for Administration for the Fire Department as a witness.Mr. Delatte testified that he was the hearing officer for the appointing authority at the appellant's pretermination hearing, and was the person who made the recommendation to the chief as to the action to be taken.Mr. Delatte testified that in all disciplinary hearings the Appointing Authority considered the factors of the case and also any rules or procedures that may impact on a particular case.In the appellant's case, [95-2166 La.App. 4 Cir. 4]a case that involves substance abuse, the safety-sensitive nature of the job takes precedence over all other factors.

When asked on cross examination what weight was accorded the safety-sensitive nature of the position relative to the other factors, he replied, "[i]n our particular case and governed by CAO policy and the safety-sensitive nature of our particular job, this holds almost all the weight."He stated that consideration had been given to all factors: time on the job, past records, so on and so forth.However, Mr. Delatte reiterated that in this particular case dealing with substance abuse, the safety-sensitive nature of the position takes precedent.

On appeal the Commission reviewed the transcripts of the hearings and affirmed the appellant's dismissal.

DISCUSSION AND LAW

In his first assignment of error, appellant argues that the Commission was arbitrary and capricious in failing to reinstate him to his position as a firefighter because no evidence was adduced demonstrating that, measured against the criteria established by Civil Service Rule V, Section 9.15, appellant's actions impaired the orderly and efficient operations of the classified service.

The commission has a duty to decide independently from the facts whether the appointing authority had good or lawful cause for taking the disciplinary action and, if so, whether the punishment imposed is commensurate with the dereliction.Cittadino v. Department of Police, 558 So.2d 1311 at 1314-1315(La. 4th Cir.1990);Walters v. Department of Police of the City of New Orleans, 454 So.2d 106(La.1984).

Legal cause exists whenever an employee's conduct impairs the efficiency of the public service in which the employee is engaged.Cittadino, supra, at 1315citing, Fisher v. Department of Health and Human Resources, Office of Human[95-2166 La.App. 4 Cir. 5]Development, 517 So.2d 318(La.App. 1st Cir.1987).The appointing authority has the burden of proving the impairment.Cittadino, id.citingLa. Const. Art. X, Sec. 8(A)andNeustadter v. Sewerage and Water Board of New Orleans, 544 So.2d 1289(La.App. 4th Cir.1989).

In reviewing the commission's findings of fact, the court should not reverse or modify such a finding unless it is clearly wrong or manifestly erroneous.In judging the Commission's exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, the court should not modify the Commission's order unless it is arbitrary, capricious or characterized by abuse of discretion.Cittadino, id, citingLombas v. Department of Police, 467 So.2d 1273, 1275(1985), quotingWalters v. Department of Police of the City of New Orleans, 454 So.2d at 114.

While it is true that the appellant's termination letter specifically stated that appellant was being terminated in accordance with a specific policy which allegedly calls for termination in substance abuse case, the record contains sufficient evidence to support a finding that the Commission was not arbitrary or capricious in finding that the Appointing Authority had met its burden of proving that the plaintiff's actions impaired the efficiency of the service.

The fact that the appellant tested positive for drugs in his system was not contested at the hearing.Rather, appellant basically argued that drug usage did not affect his performance on the job, he did not engage in drug usage at work, and he had since undergone successful rehabilitation.Additionally, he had not been the subject of any disciplinary action for the last ten years of service.Notwithstanding the equitable plea of the appellant, the Appointing Authority maintained that because the position held by the appellant was a safety sensitive position, termination was warranted.

[95-2166 La.App. 4 Cir. 6] In its initial decision remanding the case for further hearing and in its final decision dismissing the appellant's appeal, the commission made the following observations:

Any use of marijuana or cocaine is illegal and thus entirely inappropriate for a public employee.Furthermore, these are psychotropic drugs, containing brain-altering chemicals in various combinations and concentrations unknown, due to the absence of any known quality control system for the drugs.Argument that one does not consume the drug during the work day ignores the reality that residues accumulate in the body and may impair judgment and/or degrade response times to an unpredictable degree for some time after their consumption.

The threat of such impairment represents an unacceptable risk to Appellant's co-workers and the general public they all serve.

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