City of Alexandria v. Dixon

• Decision Date: 03 May 2016
• Docket Number: No. 2015–CC–1718.,2015–CC–1718.
• Citation: City of Alexandria v. Dixon, 196 So.3d 592 (La. 2016)
• Parties: CITY OF ALEXANDRIA v. Kendall DIXON.
• Court: Louisiana Supreme Court

196 So.3d 592

CITY OF ALEXANDRIA

v.Kendall DIXON.

No. 2015–CC–1718.

Supreme Court of Louisiana.

May 3, 2016.

CRICHTON, J.

We granted certiorari in this case to determine whether the Alexandria Municipal Fire and Police Civil Service Board (“the Board”) properly excluded a firefighter's alleged failed breath alcohol test results, resulting in the firefighter's reinstatement to employment after the City of Alexandria had terminated him. The trial court reversed the Board's decision, finding the Board should have considered the breath alcohol test results. The court of appeal overturned the trial court, reinstating the firefighter's employment. For reasons that follow, we find the Board's exclusion of the breath test results was incorrect and further, the court of appeal was in error in reversing the trial court's ruling that the breath alcohol test results were admissible. Therefore, the trial court's judgment reversing the Board's decision is reinstated, and we remand the matter to the Board for proper consideration of the breath alcohol test results.

FACTS AND PROCEDURAL HISTORY

Kendall Dixon was hired as a firefighter for the Alexandria, Louisiana, Fire Department in 2009. On February 4, 2011, Mr. Dixon received and signed a document from the Alexandria Fire Department, acknowledging his receipt and understanding of the City of Alexandria's Substance Abuse Policy and Procedures, effective February 1, 2011. The pertinent portion of the City of Alexandria Substance Abuse Policy and Procedures provided at the time:

Prohibited Behavior

The City hereby prohibits the items and conduct as listed:

....

II. Unauthorized Alcoholic Beverages

A. Consuming alcohol within four (4) hours prior to reporting to work (City Policy);

B. Consuming alcohol within eight (8) hours following an accident or incident which requires an alcohol test, unless an accident/incident test has been administered.

C. Using alcohol during the performance of safety-sensitive job duties;

D. Possessing a container of unauthorized alcoholic beverage in the workplace; and

E. Having an amount that is reported positive under this Policy while on his/her job (alcohol greater than .00 will result in disciplinary action up to and including termination).

....

The “zero tolerance” policy further provides under the “Consequences of Prohibited Behavior” that “[e]mployees that have positive test results ....will be terminated if ....(e) employed by the Alexandria Fire or Police Department.” Finally, the policy provides under the “Alcohol” section of “Testing Methods and Levels” that: “1. A confirmed alcohol result shall be considered a policy violation; 2. Testing for alcohol shall be by those methods approved and recognized by the State of Louisiana for cases concerning driving while intoxicated. All testing procedures shall conform to applicable state and federal laws.”¹

On July 4, 2014, Dixon was promoted to Substitute Fire Equipment Operator and was assigned to drive Engine 40, at Number–Four Fire Station. On August 22, 2014, Mr. Dixon reported for his regular shift duty at Number–Four Fire Station, which began at 7:00 a.m. Around 11:00 a.m., he was notified that he had been selected for random drug and alcohol screening, per the City of Alexandria Substance Abuse Policies and Procedures. After arriving for his test, Mr. Dixon was administered two Breath Alcohol Tests, utilizing a Phoenix 6.0 device. The first test, administered at approximately 11:22 a.m., registered a positive result of .024. The second test, administered at approximately 11:38 a.m., registered with a positive result of .018. Mr. Dixon was immediately placed on administrative leave with pay.

On August 28, 2014, Mr. Dixon was instructed via letter from his Fire Chief and the Mayor of the City of Alexandria that he was to attend a Pre–Disciplinary Hearing on September 5, 2014. Mr. Dixon attended the hearing with his father, Mr. Walter Dixon. On September 17, 2015, Mr. Dixon was informed in writing that he was terminated from employment with the Alexandria Fire Department, effective 7:00 a.m. September 18, 2014. According to the September 17, 2014, letter to Mr. Dixon, after his September 5, 2014, hearing, but before his termination, he was given the opportunity to meet and discuss the positive test results with the City's Medical Review Officer, Dr. Gordon Webb of Louisiana Occupational Health Services (“LOHS”), as Mr. Dixon had concerns that his medical condition could have affected the test results. As of Friday, September 12, 2014, Mr. Dixon had not made contact with LOHS or Dr. Webb for an appointment.

On September 25, 2014, Mr. Dixon formally notified the Alexandria Municipal Fire and Police Civil Service Board (“the Board”) that he wished to appeal his termination and request a formal hearing before the Board. Specifically, Mr. Dixon's appeal notification stated various reasons he alleged the adverse reaction was unjustified:

f.) The action taken was based upon evidence that should not have been considered, including but not limited to the following:

(i) There was no reasonable suspicion to support the tests administered.

(ii) The Test was administered in violation of the City of Alexandria Substance Abuse Policy And Procedures; including but not limited to the following:

(a) The tests were administered without Mr. Kendall's [sic] written consent;

(b) The tests were not administered in accordance with those methods approved for use in this state for cases concerning driving while intoxicated;

(c) The tests were not administered in accordance with the City of Alexandria Substance Abuse Policy and Procedures;

(d) The tests did not conform to applicable laws;

(e) The tests were not conducted randomly in compliance with the Alexandria Substance Abuse Policy and Procedures;

....

(h) No saliva sample was collected prior to the administration of the tests;

g.) The testing machine used was not properly certified, nor was the technician;

....

On October 13, 2014, prior to the hearing before the Board, Mr. Dixon also filed a “Motion to Exclude,” asserting specifically that the testing for alcohol in this instance was not in accordance with the City of Alexandria Substance Abuse Policy. Specifically, plaintiff averred the Phoenix 6.0 is not an instrument approved by the Louisiana Department of Public Safety and Corrections, to determine the blood alcohol content, and the person operating the Phoenix 6.0 was not a certified operator. Moreover, plaintiff re-stated his assertion that a saliva sample was not collected to detect alcohol prior to the administration of the breath test.

The motion came for a hearing before the Board on October 28, 2014, and the Board ultimately voted to exclude the test results. By letter to the Board dated October 29, 2014, the City of Alexandria noticed its intention to appeal the Board's exclusion of Mr. Dixon's breath alcohol tests to the 9th Judicial District Court. On November 19, 2014, the City also filed a Motion to Stay all Proceedings before the Board, asserting that the Board had not yet heard the appeal of Mr. Dixon's actual termination from the Fire Department. The stay was ultimately denied by the trial court on January 9, 2015, and the trial court granted an Exception of Prematurity filed by Mr. Dixon, asserting the merits of his actual termination by the City had not yet been heard.

On January 12, 2015, the Board did hear Mr. Dixon's appeal of his termination, at the conclusion of which Mr. Dixon was reinstated to his position, on a Motion by a Board member and seconded, that the “City did not act in good faith and for cause....” in terminating Mr. Dixon. The City thereafter appealed the Board's decision to reinstate the plaintiff, and the matter was set for hearing on April 16, 2015. Following the hearing, the trial court reversed the Board's decision to exclude the plaintiff's breath alcohol test results, and reversed the Board's decision to vacate the plaintiff's termination and reinstate him. The trial court ordered the plaintiff's discharge from employment reinstated. Specifically finding the exclusionary rule does not apply in Civil Service hearings and employing the balancing test employed in Pullin v. Louisiana State Racing Comm'n, 484 So.2d 105 (La.1986) and Skinner v. City of Natchitoches Police Department, 12–819 (La.App. 3 Cir. 2/6/13) (unpublished opinion ), 2013 WL 440534, the trial judge found a social benefit of excluding the evidence to be that public employees will be put on notice of what the policy dictates as acceptable behavior. In contrast, the social cost of exclusion of the breath alcohol results is the vital interest the City has in providing safe fire prevention and control for the public safety of its citizens. In other words, according to the trial court, the public is entitled to an assurance that if there is a fire or other emergency, the fire department would respond promptly and perform their duties responsibly. If first responders such as firefighters report for duty with alcohol in their systems, they are a danger not only to themselves, but also to the motoring public. In sum, the trial court found the City did follow their substance abuse policy, which sets forth a zero tolerance policy. The trial court further found the City's termination of Mr. Dixon was based on competent evidence, and he was afforded every due process allowed to him through the appropriate administrative procedures. Consequently, in a judgment signed April 30, 2015, the trial court reversed the Board's exclusion of the breath test results, reversed the Board's reinstatement of Dixon, reinstated the termination of Dixon, and remanded the matter for proceedings consistent with its findings.²

The plaintiff applied for supervisory writs to the Court of Appeal, Third Circuit, who granted the plaintiff's writ and reversed the trial court. Specifically, the appellate court found the trial court was in error in reversing the decision of the Board to exclude the evidence of the...