John Keith Richard v. Lafayette Fire and Police Civil Service Board

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-1010

JOHN KEITH RICHARD

VERSUS

LAFAYETTE FIRE AND POLICE CIVIL SERVICE BOARD AND
LAFAYETTE CONSOLIDATED GOVERNMENT

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2006-3111
HONORABLE JOHN D. TRAHAN, DISTRICT JUDGE

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J. DAVID PAINTER

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Court composed of Billy Howard Ezell, J. David Painter, and James T. Genovese,
Judges.

REVERSED AND RENDERED.

William L. Goode
812 Johnston St.
Lafayette, LA 70501
Counsel for Plaintiff-Appellant:
John Keith Richard

M. Candace Hattan
P.O. Drawer 91850
Lafayette, LA 70509
P.O. Box 13438
Counsel for Defendants-Appellees:
Lafayette Municipal Fire and Police Civil Service Board

Michael P. Corry
P.O. Box 51367
Lafayette, LA 70505
Counsel for Defendant-Appellee:
Lafayette Consolidated Government

PAINTER, Judge.

This case is before us for a review of the district court’s ruling on the appeal

of a decision of the Lafayette Fire and Police Civil Service Board (the Board)

affirming the termination of John Keith Richard on August 2, 2005.

FACTS

In June 2005, Richard was employed as a Lafayette City Policeman. He also

worked as security for Club 410, a bar/nightclub located in downtown Lafayette,

Louisiana. Also employed at Club 410 were Jason Galatas, another Lafayette City

Policeman, and Jason Segal. Segal allegedly told Galetas that his roommate, Marc

Cormier, had a large amount of marijuana in the apartment he shared with Segal on

Meaux Avenue in Lafayette and that Galetas and Richard should stay away from the

apartment. Galetas called Agent Jason Herpin of the Lafayette Metro Narcotics

Squad and reported the information about the marijuana. He allegedly told Herpin

that he did not want to be involved, because he had heard rumors that this was where

fellow police officer Trampus Gaspard was getting steroids. Herpin passed the

information on to Major Brian Baumgardner, Sergeant Gabriel Thompson, and

Corporal Kane Marceaux. Those officers, along with a K-9 officer, Corporal Brent

Taylor, went to the apartment to secure it while waiting for a search warrant. Cormier

was not at home when they arrived. While they were at the apartment, Richard called

Taylor saying that a friend had called and said that he had seen plain clothes police

officers at the apartment on Meaux Avenue. Richard allegedly asked Taylor what

was going on, and Taylor told him he should call Baumgardner. Richard then called

Baumgardner who told him that they were conducting a marijuana investigation at the

apartment. Cormier returned to the apartment, apparently having been at a nearby

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apartment rented by his brother. Richard alleges that he was instrumental in

convincing Cormier to return to the apartment.

After obtaining a search warrant, the officers searched Cormier’s apartment and

found between twenty and twenty-five pounds of marijuana, a number of bottles of

steroids, and drug paraphernalia.

In the aftermath of the raid on the Meaux Avenue apartment, an investigation

was initiated by the Internal Affairs Division of the Lafayette Police Department (the

Department). Richard and Gaspard, among other officers, were subjected to

“reasonable suspicion” drug screening. Both tested positive for steroid use, and both

were terminated by the Chief of Police Randy Hundley (the Chief). After a hearing

on May 23, 2006, the Board affirmed Richard’s termination, but overturned

Gaspard’s termination. Richard appealed to the district court, which affirmed the

ruling of the Board. He now appeals that decision to this court. Finding that no

reasonable suspicion existed to test Richard, we reverse the ruling of the Board and

of the trial court.

DISCUSSION

Appeals of decisions of a civil service board are to be confined to “the

determination of whether the decision made by the board was made in good faith for

cause.” La.R.S. 33:2501(E)(3). The Louisiana Supreme Court in Moore v. Ware,

01-3341 (La. 2/25/03), 839 So.2d 940, 945-46, explained that:

If made in good faith and statutory cause, a decision of the civil
service board cannot be disturbed on judicial review. Smith v.
Municipal Fire & Police Civil Service Bd., 94-625 (La.App. 3 Cir.
11/02/94), 649 So.2d 566; McDonald v. City of Shreveport, 655 So.2d
588 (La.App. 2 Cir.1995). Good faith does not occur if the appointing
authority acted arbitrarily or capriciously, or as the result of prejudice or
political expediency. Martin v. City of St. Martinville, 321 So.2d 532
(La.App. 3 Cir.1975), writ denied, 325 So.2d 273 (La.1976). Arbitrary

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or capricious means the lack of a rational basis for the action taken.
Shields v. City of Shreveport, 579 So.2d 961, 964 (La.1991); Bicknell
v. United States, 422 F.2d 1055 (5 Cir.1970). The district court should
accord deference to a civil service board’s factual conclusions and must
not overturn them unless they are manifestly erroneous. Shields v. City
of Shreveport, 565 So.2d 473, 480 (La.App. 2 Cir.), aff’d, 579 So.2d 961
(La.1991). Likewise, the intermediate appellate court and our review of
a civil service board’s findings of fact are limited. Shields, 579 So.2d
at 964. Those findings are entitled to the same weight as findings of fact
made by a trial court and are not to be overturned in the absence of
manifest error. Id.; City of Kenner v. Wool, 433 So.2d 785, 788
(La.App. 5 Cir.1983).

It is undisputed that on June 15, 2006, the Chief ordered Richard to take a

“reasonable suspicion” drug screen. Richard asserts that there was no reasonable

suspicion as set out in the Lafayette Consolidated Government Policy and Procedure

Manual (PPM) 123–1§ 14. PPM 123–1 states that its purpose is to “eliminate

unauthorized drug use (including the unauthorized use of alcohol), drug users, drug

activities and drug effects from all work places.” To that end, Section 14 of PPM

123–1 provides for non-random drug tests as follows:

14.1 Testing on the basis of reasonable suspicion may be directed for
reasons including, but not limited to, those identified below:

a. When a supervisor has reason to suspect that an employee
is under the influence of drugs or alcohol due to the
employees’s physical condition or unusual behavior while
working, or other articulable reasons that would lead a
prudent supervisor to be concerned about the individual’s
safety or the safety of co-workers or the general public.

b. When a supervisor has reasonable suspicion of probable
drug or alcohol abuse by an employee or a number of
employees based on reliable information such as an
unusual amount of accidents, incidents of theft, lost
productivity or reports of unusual or unsafe behavior, or
other facts that would justify testing specific individuals or
groups due to safety concerns.

c. When a supervisor has a reasonable suspicion of possible
drug or alcohol abuse based on an employee’s excessive

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absenteeism or a suspicious pattern or trend of
absenteeism.

d. When an employee is found in possession of suspected
illicit or unauthorized drugs and/or alcohol, drug
paraphernalia or when an such items are found in an area
controlled or used exclusively or predominately by such
employee.

e. When an employee is arrested or convicted for a drug-
related offense, is identified as the focus of a criminal
investigation into illegal drug possession, use, or
trafficking, or when information of illegal drug activities is
provided either by reliable or credible sources or by
independent corroboration.

14.2 Although reasonable suspicion does not require absolute proof or
certainty, mere speculation or hunches are not sufficient to meet
this standard. Therefore, before testing on the basis of reasonable
suspicion is scheduled, such suspicion must be discussed with,
and supported by the Appointing Authority and/or his designee in
coordination with the Substance Abuse Program Manager.

The Board and the Lafayette Parish Consolidated Government assert that

Richard’s action in involving himself in an unofficial capacity in the drug raid on the

Meaux Avenue apartment and his association with the residents of that apartment

gave rise to a reasonable suspicion that he was a drug user. While apparently

admitting that none of the specific reasons outlined in PPM 123–1 § 14 existed in this

case, they point out that these reasons are not exclusive noting that the reasons for

“reasonable suspicion” include but are not limited to these reasons. However, the

reasons delineated in PPM 123–1 § 14 have in common that they all relate to behavior

suggesting drug use or abuse, possession of drugs or related items, or a reliable tip.

In this case, none of the reasons for the drug test fall into those categories.

Under both Louisiana and Federal jurisprudence, mandatory drug
or alcohol testing of police or certain correctional officers, other than
uniformly or systematic random testing,

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“... may be made only on the basis of a reasonable suspicion,
based on specific objective facts and reasonable inferences drawn
from those facts in light of experience that the employee is then
under the influence of drugs or alcohol or that the employee has
used a controlled substance within the twenty-four hour period
prior to the required test.”

Banks v. Dept. of Public Safety and Corrections, 598 So.2d 515,
518 (La.App. 1st Cir.1992), quoting McDonnell v. Hunter, 809 F.2d
1302, 1309 (8th Cir.1987). (Both Banks and McDonnell specifically
addressed the validity of urinalysis testing.)

The propriety of a urinalysis test not ordered pursuant to a random
drug testing program is appropriately evaluated according to whether the
Department had reasonable suspicion that a particular officer was a user
of illegal drugs. Banks v. Dept. of Public Safety and Corrections, supra
at 519, citing Fraternal Order of Police, Lodge No. 5 v. Tucker, 868 F.2d
74, 77 (3d Cir.1989). This standard requires an “objective evaluation of
whether reasonable suspicion existed.” Fraternal Order of Police,
Lodge No. 5 v. Tucker, supra at 77, citing Copeland v. Philadelphia
Police Dept., 840 F.2d 1139 (3d Cir.1988). “Factors important to such
an evaluation include: 1) the nature of the tip or information; 2) the
reliability of the informant; 3) the degree of corroboration; and 4) other
facts contributing to suspicion or lack thereof.” Fraternal Order of
Police, Lodge No. 5 v. Tucker, supra at 78; Banks v. Dept. of Public
Safety and Corrections, supra at 519.

Safford v. Department of Fire, 627 So.2d 707, 709 (La.App. 4 Cir. 1993) (footnote

omitted).

After reviewing the transcripts of the hearings and statements in this case, we

find that there was not sufficient cause to suspect Richard of drug use so as to subject

him to “reasonable suspicion” drug screening. Suspicion in this case is based on a

phone call to officers participating in a drug raid and acquaintance through another

job with suspected drug users. No substantial investigation was conducted before

ordering Richard to submit to the test, and there is no suggestion that his behavior

suggested drug use. No evidence was introduced suggesting any other incident,

action, or pattern of behavior during Richard’s tenure as a police officer which

suggested that he might be a drug user. The guidelines set out in PPM 123–1 § 14 do

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not provide for reasonable suspicion sufficient to require drug screening based on

guilt by association or on a single instance of bad judgment. We further note that

while the more substantial evidence pointed to drug use by Gaspard, i.e., a tip from

a fellow officer coupled with a change in Gaspard’s appearance suggestive of steroid

use, the Board found that reasonable suspicion did not exist with regard to Gaspard.

Accordingly we conclude that no showing of reasonable suspicion was made upon

which to base the order that Richard submit to the test.

The Board’s finding that reasonable suspicion existed was manifestly

erroneous. Further, the Board and trial court erred in finding that Richard had been

dismissed in good faith for cause. While those in authority may have acted in good

faith, they lacked cause for testing and thus for termination. Having so concluded,

we reverse and set aside the termination of Richard’s employment with the

Department. Richard is to be reinstated with all back pay.

CONCLUSION

For these reasons, we reverse Richard’s termination. Judgment is rendered

ordering the reinstatement of Richard to his previous position with the Department

with all back pay.

REVERSED AND RENDERED.

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