Officer Mario Cole was randomly chosen to undergo a standard drug screening for his job at the New Orleans Police Department (NOPD). When he took the test, he tested positive for morphine. As a result, Cole was suspended pending investigation by the NOPD. Sergeant Lesia Latham Mims interviewed Cole and his fiancée as part of her investigation. Cole claimed he injured himself while lifting weights the day before. His fiancée gave him one of her prescription pills for his pain. Cole alleged he believed it was a regular pain reliever. The department next conducted a pre-disciplinary hearing. At the hearing, it was decided Cole’s employment would be terminated for violating NOPD rules against drug use. Cole appealed.
On his appeal, Cole argued the decision to terminate his employment was an abuse of discretion because: 1) the board found him to be under the influence of morphine when he came to work, 2) the board found there was a relationship between the violation and his ability to operate as a public servant, and 3) his termination was found to be the proper course of action for his offense.
The Louisiana Court of Appeal for the Fourth Circuit reviewed the appeal. To overcome an appeal before the New Orleans Civil Service Commission (CSC), the appointing authority must show: 1) the activity in question happened and 2) the conduct was substantially related to appointing authority’s operations. If the appointing authority was warranted in its disciplinary action, it must then determine if the discipline was “commensurate with the offense.” See Gast v. Department of Police, 137 So.3d 731 (La. Ct. App 2014). The appointing authority bears the burden of proof for each element.
Cole argues the NOPD did not meet its burden in proving he was incapacitated due to the morphine on the day of his drug screening. He argued his ability to serve was not impaired. NOPD put a toxicology expert on the stand, who testified Cole’s levels of morphine were fifty percent higher than NOPD’s permitted cutoff. Sergeant Mims testified it is against NOPD policy to take prescription medications not prescribed to the person taking them. The Deputy Superintendent testified about the danger of drug violations. He claimed officers could not be impaired by drugs when carrying out their duties as public servants. In his opinion, to the department’s no-tolerance policy for drugs, termination was appropriate.
Looking at the record, the CSC determined the NOPD established by a preponderance of the evidence Cole was under the influence of morphine and did not alert the NOPD of his impairment. The appeals court agreed with this determination. The court also found the termination was commensurate with the offense because of the dangers associated with being under the influence while on the job as a police officer.
This case demonstrates the challenges one faces while filing an appeal. An experienced lawyer will ensure you can meet (or beat) the necessary elements of the case at trial and on appeal.
Additional Sources: MARIO COLE versus DEPARTMENT OF POLICE
Written by Berniard Law Firm Blog Writer: Gabriela Chilingarova
Other Berniard Law Firm Articles on Work Procedures and Lawsuits: New Orleans police officer’s disciplinary violation is reversed