Ned v. Lake Charles Municipal Fire & Police Civil Service Board

721 So. 2d 577, 98 La.App. 3 Cir. 199, 1998 La. App. LEXIS 3195, 1998 WL 787200
CourtLouisiana Court of Appeal
DecidedNovember 12, 1998
DocketNo. 98-199
StatusPublished

This text of 721 So. 2d 577 (Ned v. Lake Charles Municipal Fire & Police Civil Service Board) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ned v. Lake Charles Municipal Fire & Police Civil Service Board, 721 So. 2d 577, 98 La.App. 3 Cir. 199, 1998 La. App. LEXIS 3195, 1998 WL 787200 (La. Ct. App. 1998).

Opinion

liWOODARD, Judge.

This is a civil service dispute. Police Officer Albert S. Ned (Ned), a member of the Lake Charles City Police Department (Department), tested positive for marijuana in a drug screen test ordered by his superiors. He also tested negative for marijuana at another laboratory the same day of the ordered drug screen. By letter dated July 8, 1994, the City of Lake Charles (City) terminated him. He appealed to the Lake Charles Municipal Fire and Police Civil Service Board (Board). The Board affirmed the City’s decision. With new counsel, Ned appealed to the district court which ordered a new hearing since his original counsel was not licensed in Louisiana. A second Board proceeding was held and Ned’s termination was upheld. Ned again appealed the Board’s hearing to the district court which affirmed the Board’s decision. Ned is appealing the district court’s decision. We affirm.

_JFACTS

The City hired Ned as a police officer on July 28, 1992. By letter dated July 8, 1994, signed by Mayor Willie Mount and Chief of Police, Sam Ivey, (Ivey), the City terminated him, effective July 11, 1994, from his position at the Department after he tested positive for marijuana in a drug screen ordered by his superiors within the Department.

The events leading to his termination began on June 28, 1994, at 2:00 a.m., when he called the police to report a neighbor in his apartment complex, Ms. Kerry Riggs, a part-time employee of the Department, for excessive noise. When the police arrived at Kerry’s apartment, he claimed to have overheard her tell the officers that she worked for the City and would be reporting Ned to Ivey in the morning.

[579]*579He reported for work at 5:25 a.m. He related the incident to his supervisor, Lieutenant Louis Hebert (Hebert), and Sergeant Karl Gillard (Gillard) of Internal Affairs, who told Ned that he had done the right thing by letting the officers handle the situation. Also, he informed the two officers that he had taken medication to help him sleep.

Later that same day, he was called to Chief Ivey’s office. Ivey wanted to discuss the neighbor’s complaint and to let him know that he wanted all the city employees to be “one big happy family.” Ned claimed that he was afraid of losing his job and upset because Ivey would not listen to his side of the story. He got so upset in Ivey’s office that he began crying. Ivey thought his behavior was erratic, that his speech patterns were peculiar, and that Ned appeared to be hyperventilating. During the meeting with Ivey, he told Ivey that he had taken medication to help him sleep the night before. Ivey dismissed Ned from his office.

Then Ned went directly to Hebert and Gillard to discuss the situation. He was so visibly upset that Hebert thought he had lost his job. He revealed to the two officers that he had taped the conversation between himself and Ivey and began playing the taped conversation. Hebert left the room and walked across the hall to Ivey’s office. Twenty minutes later he returned with Major Frank Landry, Lieutenant Ronald Lewis, and Sergeant Gillard. Landry thought that Ned’s behavior was strange and deviant from the norm. Landry told him that he was under internal investigation and read him the Police Officer’s Bill of Rights while Ned read them to himself. Upon reading the part regarding the right to have an attorney present, Ned told them that he did want ^counsel. He testified, however, that his request was denied, while Landry, on the other hand, denied that he had made the request.

Landry ordered him to take a urine screen. Gillard escorted Ned to The Pathology Laboratory where Ned submitted a urine sample at approximately 3:00 p.m. Ned handed the sample to the laboratory technician and observed the technician place a band around the sample bottle. Gillard and Ned left the laboratory and returned to the station. Ned requested that he be allowed to have a second test done that same day, but it was denied. He was placed on desk duty for the rest of his shift.

The test results from The Pathology Laboratory were positive for marijuana. Ned was placed on emergency leave that same day, pending confirmation testing. The sample was sent to the Nichols Institute of Substance Abuse Laboratories in San Diego, California. On July 8, 1994, this lab confirmed the original test results.

The same day of testing at The Pathology Laboratory, Ned called his personal physician, Dr. Melvin Morris, and an attorney. He had a second urine test done at Lake Charles Memorial Hospital at approximately 8:45 p.m. This health-care facility also performed regular urine testing for police officers. On July 1, 1994, Dr. Morris informed Ned that Memorial’s test was negative for marijuana. This negative result was also confirmed by an outside laboratory, the Louisiana Reference Laboratory in Baton Rouge, Louisiana, which reported its findings to Ned on July 14, 1994.

Ned testified that the first urine sample was not properly sealed in his presence, despite a consent form he signed at The Pathology Laboratory on the day of the test. His testimony is the only evidence to indicate any possible tampering of his urine sample. Testimony from employees of The Pathology Laboratory and the Nichols Institute in California showed no irregularities in the chain of custody. After his verbal termination, Ned informed the City that he had received a negative test the same day of his positive test result. Nevertheless, on July 8, 1994, the City of Lake Charles terminated Ned, by letter, for failing a drug screen.

In addition to Ivey’s claim that Ned acted in a suspicious manner on June 28, 1994, there had been rumors in the Department that he was using illegal drugs. Rumors were circulating that he was using marijuana. And, some of the rumors involved his use of steroids prior to becoming a police officer, as he had been a competitive body builder. Although Ivey denied that rumors contributed to his decision to order Ned to be tested, [580]*580testimony from other officers established that part kof the reason he was tested was because of the rumors. Sergeant Mike Johnson (Johnson), who was on the Board, had started the rumors of steroid use. When Ned confronted him about it, he apologized. This conversation was taped with Johnson’s permission. A transcript of the conversation was proffered by Ned after his motion to recuse Johnson at the second Board proceeding was denied. Johnson remained a member of the Board that heard Ned’s appeal.

Prior to his ordered drug screening, the department had never taken disciplinary actions against him. On the contrary, he had received several citations and letters of commendation from the City.

When Ned was presented with the termination letter on July 11, 1994, he refused to sign it. On July 14, 1994, his attorney appealed the City’s action to the Board. Ned released this attorney and retained the services of an attorney from San Marcos, Texas, who represented him at the appeal hearing before the Board on September 16, 1994. The Board upheld the decision of the City. On October 6, 1994, his present attorney enrolled as his counsel and filed a request for rehearing and a notice of appeal. The request for rehearing was heard by the Board on November 11,1994 and denied.

The appeal to the district court was heard on December 4, 1995. The district court found that the proceedings before the Board were void because the attorney who had represented him was not licensed in Louisiana. The court found that the Board was not made aware of this fact, even though the City knew this was true.

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Bluebook (online)
721 So. 2d 577, 98 La.App. 3 Cir. 199, 1998 La. App. LEXIS 3195, 1998 WL 787200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ned-v-lake-charles-municipal-fire-police-civil-service-board-lactapp-1998.