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Cole v. Department of Police

Court of Appeals of Louisiana, Fourth Circuit

May 17, 2017

MARIO COLE
v.
DEPARTMENT OF POLICE

         APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 8192

          Donovan A. Livaccari COUNSEL FOR PLAINTIFF/APPELLANT

          Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins

          Roland L. Belsome Judge

         Appellant, Mario Cole, appeals the New Orleans Civil Service Commission's ("CSC") decision to uphold his termination by the New Orleans Police Department ("NOPD"). Mr. Cole was terminated from his position as a police officer with the NOPD after he tested positive for morphine during a random drug test. For the reasons that follow, the CSC's judgment is affirmed.

         Statement of the Case

         On the morning of January 8, 2013, Mr. Cole reported into work as a Police Officer with the NOPD. He was informed that he had been selected for a random drug screening, which he failed when he tested positive for morphine.

         Mr. Cole was placed on emergency suspension and the NOPD opened an internal investigation. Sergeant Lesia Latham Mims, who was assigned to conduct the investigation, interviewed both Cole and his fiancée, Ms. Ashley Franks. Mr. Cole told her that he injured his shoulder while lifting weights on January 7, 2013, and that when he told his fiancée about the injury, she gave him a small, white pill to take to relieve the pain. He claimed that he believed the pill was simply ibuprofen or another over-the-counter pain reliever, and only learned it was morphine after he failed the drug test.

         Sergeant Mims submitted her report, and a pre-disciplinary hearing was scheduled. Deputy Superintendent Albert presided over the hearing and recommended that NOPD terminate Mr. Cole's employment for violation of NOPD Rule 3, ¶ 7, Use of Drugs/Substance Abuse Testing. Superintendent Ronal Serpas concurred with the disciplinary recommendation, and Mr. Cole was issued a letter notifying him that he was terminated effective July 9, 2013.

         Mr. Cole filed an appeal with the CSC, which was denied. This appeal followed.

         Assignments of Error

         On appeal, Mr. Cole argues that the CSC's decision was arbitrary and capricious and an abuse of discretion in the following three ways: 1) by finding that Mr. Cole was under the influence of morphine when he reported to work on January 8, 2013; 2) by finding that there was a real and substantial relationship between the violation and an adverse impact to the operation of public service; and 3) by finding that termination was commensurate with the offense.

         Law and Discussion

         Employees in the classified service may only be disciplined for sufficient cause.[1] In an appeal before the CSC, the appointing authority must prove by a preponderance of the evidence 1) the occurrence of the complained of activity, and 2) the conduct bore a real and substantial relationship to the efficient operation of the appointing authority.[2] If the CSC finds the appointing authority has met its burden of proof and had sufficient cause to issue discipline, it must then determine if the discipline was ...


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