The opinion
RODNEY CRAYTON * NO. 2023-CA-0728
VERSUS *
COURT OF APPEAL
SEWERAGE & WATER *
BOARD OF NEW ORLEANS FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******
APPEAL FROM
CITY CIVIL SERVICE COMMISSION ORLEANS
NO. 9443
Honorable Jay Ginsburg, Hearing Officer
******
Judge Joy Cossich Lobrano
******
(Court composed of Judge Joy Cossich Lobrano, Judge Paula A. Brown, Judge
Karen K. Herman)
Jack Bohannon
SOUTHEAST LOUISIANA LEGAL SERVICES
1340 Poydras Street, Suite 120
New Orleans, LA 70112
COUNSEL FOR PLAINTIFF/APPELLEE
Darryl Harrison
Chanelle L. Collins
SEWERAGE & WATER BOARD
625 St. Joseph Street
New Orleans, LA 70165
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED IN PART; REVERSED
IN PART; RENDERED
JULY 9, 2024
JCL This is a civil service case. The Sewerage and Water Board of New Orleans
PAB (“SWB”) appeals the September 13, 2024 decision of the Civil Service
KKH Commission (“CSC” or “Commission”), which reinstated SWB employee, Rodney
Crayton (“Crayton”), with back pay and emoluments of employment. For the
reasons that follow, we find that Crayton violated SWB’s substance abuse policy.
Further, we find that, under the circumstances of this case, suspension is the
appropriate sanction for the infraction. Accordingly, we affirm the decision of the
CSC to the extent it reinstated Crayton’s employment with back pay and all other
emoluments of employment and reverse the decision to the extent the back pay and
emolument award did not reflect an eighty-day suspension. Further, we render
judgment imposing an eighty-day suspension without pay.
FACTS AND PROCEDURAL HISTORY
Crayton became an employee of SWB on March 21, 2016. At the time of the
incident made subject of this appeal, he had permanent status as a painter in
Support Services.
On November 11, 2022 at approximately 12:02 p.m., Alvin Flint (“Flint”),
SWB’s Security Manager, received a text message concerning alcohol
consumption by two unidentified SWB employees. The text stated, “Van 39 is a
(sic) Dumaine and Claiborne[.] Two employees drinking beer on the clock[.]” Flint
asked, “Who is this!!”, and the informant replied, “Ms. Boyd with Parking and
Violations.”
Flint emailed screenshots of the texts to Edgar Edwards (“Edwards”), a
SWB investigator, and asked him to locate SWB vehicle no. 39 through the GPS
tracking system. Edwards accessed the GPS tracking system, but the location of
1
vehicle no. 39 did not register on the system. Thereafter, Dave Cappel (“Cappel”),
the Director of Support Services, called Just Lamare (“Lamare”), a supervisor in
the Maintenance Department, to ascertain who the occupants of vehicle no. 39
were. Lamare informed Cappel that Crayton and Dasper Newell (“Newell”) were
the occupants of the vehicle. Cappel then advised Edwards that “the occupants of
[] vehicle [no.] 39 . . . were just arriving.”
Cappel ordered that Crayton and Newell submit to substance abuse testing
based on grounds of “reasonable suspicion.”1 Crayton and Newell were driven to
the testing facility by Kedrick Williams (“Williams”), a supervisor in the
Maintenance Department. Crayton submitted to a substance abuse screen and
tested positive for alcohol at level .036 at 2:20 p.m. A second test confirmed
Crayton’s blood alcohol level was .030 at 2:39 p.m.
1 Civil Service Rule V, §9.12 sets forth the criteria for reasonable suspicion drug testing:
An employee shall be required to participate in the substance abuse
screening procedure if there exists reasonable suspicion (Category
III) to believe that the employee’s fitness for duty is questionable,
based on the following criteria:
(a) Any observable, work-related behavior or similar pattern of
conduct that appears to be abnormal, erratic or otherwise
not in conformance with acceptable City policy.
(b) Any observable, work-related behavior or similar pattern of
conduct that indicates signs of impairment in normal
sensory and/or motor body functions.
(c) Any articulable facts or evidence that indicate possible
substance abuse on the job.
(d) Any information or evidence that warrants, or emanates
from, an authorized investigation of possible drug-related
activity by a specific individual or group.
(e) Any pattern of alcohol and/or drug-related behavior,
conduct or activity that is violative of municipal, state or
federal law.
2
On November 14, 2022, Flint instructed Edwards to conduct an
investigation. Edwards visited a store located on the corner of Dumaine Street and
Claiborne Avenue, which he knew from prior investigations had surveillance
cameras. Edwards spoke with the store manager, who informed him that the store’s
camera system was inoperable at the time of the reported incident. Edwards also
interviewed Williams. Williams informed Edwards that he did not observe any
signs of impairment on the part of Crayton on November 11, 2022. Edwards
attempted to contact Ms. Boyd but was unsuccessful in doing so.2
A pre-disciplinary hearing was held on December 27, 2022. Following the
pre-disciplinary hearing, SWB sent Crayton a letter dated December 29, 2022
informing him that he was terminated effective December 28, 2022 for violating
SWB’s substance abuse policy.3 Crayton appealed his termination to the CSC. A
2 According to Edwards, Ms. Boyd was a city employee, not a SWB employee.
3 SWB’s substance abuse policy provides, in pertinent part, as follows:
Employees should report to work fit for duty and free of any
adverse effects of illegal drugs or alcohol. This policy does not
prohibit employees from the lawful use and possession of
prescribed medications. Employees must, however, consult with
their doctors about the medications’ effect on their fitness for duty
and ability to work safely, and they must promptly disclose any
work restrictions to their supervisor.
Whenever employees are working, are operating any [SWB]
vehicle, are present on [SWB] premises or are conducting [SWB]-
related work offsite, they are prohibited from:
1. Being under the influence of alcohol or an illegal drug
as defined in this policy[;]
2. Using, possessing, buying, selling, manufacturing or
dispensing an illegal drug (to include possession of
drug paraphernalia)[;]
3. Possessing or consuming alcohol.
The substance abuse policy defines “under the influence of alcohol” as “a confirmed positive test
result for an alcohol concentration greater than or equal to 0.02.”
3
hearing was conducted on April 28, 2023 before a hearing examiner appointed by
the CSC. The CSC issued a decision on September 13, 2024, finding that Crayton
was wrongfully terminated because SWB lacked reasonable suspicion to subject
Crayton to substance abuse testing and ordering that SWB reinstate Crayton with
back pay and all other emoluments of employment. SWB appeals the CSC’s
decision to this Court.
STANDARD OF REVIEW
La. Const. art. X, § 8(A) provides that a classified employee against whom
disciplinary action has been taken “shall have the right of appeal” at which time,
the “burden of proof ... shall be on the appointing authority.” In the appeal, “the
appointing authority [here, SWB] has the burden of proving, by a preponderance of
the evidence: 1) the occurrence of the complained of activity; and 2) that the
conduct complained of impaired the efficiency of the public service in which the
appointing authority is engaged.” Clark v. Dep’t of Police, 18-0399, p. 4 (La. App.
4 Cir. 10/10/18), 257 So.3d 744, 747. On appeal, the CSC is required to “determine
independently from the facts presented whether the legal cause for disciplinary
action has been established and, if so, whether that disciplinary action is
commensurate with the employee’s detrimental conduct.” Honore’ v. Dep’t of Pub.
Works, 14-0986, pp. 8-9 (La. App. 4 Cir. 10/29/15), 178 So.3d 1120, 1127. The
CSC “has the duty and authority to affirm, reverse, or modify the action taken by
the Appointing Authority.” Id., 14-0986, p. 9, 178 So.3d at 1127.
The decision of the CSC “is subject to review on any question of law or fact
upon appeal to this Court.” Cure v. Dep’t of Police, 07-0166, p. 2 (La. App. 4 Cir.
8/1/07), 964 So.2d 1093, 1094 (citing La. Const. art. X, § 12(B)). The appellate
standard of review in civil service cases is as follows: (1) the appellate review of
4
factual findings is governed by the manifest error or clearly erroneous standard; (2)
if the CSC’s decision involves jurisdiction, procedure, and interpretation of laws or
regulations, judicial review is not limited to the arbitrary, capricious, or abuse of
discretion standard; rather, the appellate court exercises its constitutional duty to
review questions of law and render a judgment on the record; (3) a legal error
occurs when a trial court applies the incorrect principles of law and such errors are
prejudicial; and (4) mixed questions of fact and law are accorded “great deference”
under the manifest error standard of review. Banks v. New Orleans Police Dep’t,
01-0859, p. 3 (La. App. 4 Cir. 9/25/02), 829 So.2d 511, 513-14 (citations omitted).
Accordingly, the CSC’s conclusion as to the existence or absence of cause for
dismissal will only be reversed when its decision is arbitrary, capricious or an
abuse of the CSC’s discretion. Razor v. New Orleans Dep’t of Police, 04-2002, p. 4
(La. App. 4 Cir. 2/15/06), 926 So.2d 1, 4; Woods v. French Mkt. Corp., 21-0689, p.
6 (La. App. 4 Cir. 3/23/22), 336 So.3d 912, 916, writ not considered, 22-01048
(La. 10/12/22), 348 So.3d 68.
DISCUSSION
SWB asserts as its only assignment of error that the CSC erred in reinstating
Crayton to his employment on the grounds that SWB lacked reasonable suspicion
for subjecting Crayton to a substance abuse test, the results of which formed the
basis of SWB’s decision to terminate Crayton’s employment.
In George v. Dep’t of Fire, 637 So.2d 1097, 1101 (La. App. 4th Cir. 1994),
this Court addressed the authority of an appointing authority to order an employee
to submit to a drug test:
Initially, we note that the Fourth Amendment of
the United States Constitution prohibition against
unreasonable searches and seizures by government
5
officials is applicable to the states via the Fourteenth
Amendment. State v. Church, 538 So.2d 993 (La.1989).
The Louisiana Constitution protects against unreasonable
invasions of privacy as well as unreasonable searches and
seizures. Id. at 997. La. Const. art. I, § 5.
Furthermore, the collection and subsequent
analysis of biological samples for the purpose of drug
testing with government encouragement, endorsement,
and participation are Fourth Amendment searches.
Skinner v. Railway Labor Executives’ Association, 489
U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989).
Therefore, such searches must meet the reasonableness
requirements of the Fourth Amendment. National
Treasury Employees Union v. Von Raab, 489 U.S. 656,
109 S.Ct. 1384, 103 L.Ed.2d 685 (1989).
It is reasonable for a governmental employer to
order an employee to submit to a drug test on the basis of
individualized suspicion in certain circumstances. Banks
v. Department of Public Safety and Corrections, 598
So.2d 515, 518 (La.App. 1st Cir.1992). The factors to
consider in determining whether an employer has
reasonable suspicion that a particular employee is a user
of illegal drugs was set forth in Banks, citing Fraternal
Order of Police, Lodge No. 5 v. Tucker, 868 F.2d 74 (3d
Cir.1989), as follows: (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. Banks, 598 So.2d at 519.
This Court has noted that information from unknown informants “is
recognized as unreliable and the degree of corroboration is an important factor” in
determining whether reasonable suspicion exists to warrant a non-random drug
test. Razor, 04-2002, p. 8, 926 So.2d at 6. Additionally, an appointing authority
may not rely on information gleaned after the appointing authority ordered a drug
test to justify ordering the test. Richard v. Lafayette Fire & Police Civ. Serv. Bd.,
08-1044, 08-1623, p. 21 (La. 2/6/09), 8 So.3d 509, 521. “Because constitutional
rights are implicated, the appointing authority has the burden of establishing
6
reasonable suspicion existed before a drug test was ordered.” Id., 08-1044, 08-
1623, p. 13, 8 So.3d at 517.
The facts of the case sub judice case are similar to those presented in Safford
v. Dep’t of Fire, 627 So.2d 707 (La. App. 4th Cir. 1993). In Safford, the district
fire chief received a telephone call from a woman claiming to be the plaintiff’s
wife, and, based on the conversation, the district chief concluded that the plaintiff
was possibly intoxicated or under the influence of drugs while on duty. 627 So.2d
at 708. The district chief did not know the woman’s voice, nor could he identify
her as being the plaintiff’s wife. Id. In order to confirm the woman’s identity, the
district chief called her back at the number given by her. Id. Thereafter, the
plaintiff was ordered to submit to a urinalysis and blood test. Id. The plaintiff
refused to submit to the test, and he was immediately suspended and later
terminated from his job. Id. at 708-09. The CSC upheld the plaintiff’s termination.
Id. at 709. In the appeal of the CSC’s decision, this Court concluded that no
showing of reasonable suspicion to subject the plaintiff to the test was made,
considering that “no corroboration of the authenticity of [the] call was made with
the exception of the district chief calling back to the number given by [the] caller
herself,” “plaintiff exhibited no unusual conduct on the morning of the call,” and
“no substantial investigation [was conducted] before ordering plaintiff to submit to
the test.” Id. at 709-10. Accordingly, the Court reversed the plaintiff’s termination
and ordered that he be reinstated with all back pay. Id. at 710.
In the case sub judice, Flint received a text message from an unknown
informant who identified herself as “Ms. Boyd” that two SWB employees were
“drinking beer on the clock.” The text message identified the work vehicle in
which the employees were riding as “Van 39” and provided its location. Ms. Boyd
7
and Flint were not called to testify at the CSC hearing. No substantial investigation
was conducted by SWB to corroborate or confirm that Crayton had been drinking,
prior to ordering him to submit to a substance abuse test. SWB made no attempt to
contact Ms. Boyd prior to ordering Crayton to submit to substance abuse testing
even though it had her phone number. While Edwards did attempt to secure
surveillance footage of the location where the alcohol consumption had been
reported, he did so (unsuccessfully) three days after Crayton underwent the
substance abuse test.
SWB had no evidence, prior to subjecting Crayton to a substance abuse test,
to corroborate that SWB vehicle no. 39, the vehicle in which Crayton was riding,
was at or near the location reported by Ms. Boyd. Further, there was no evidence
of any unusual conduct on Crayton’s part that might indicate that he was under the
influence of alcohol.4 Based on the circumstances presented in this case, we cannot
say that the CSC’s finding that reasonable suspicion did not exist to subject
Crayton to substance abuse testing was manifestly erroneous.
That SWB lacked reasonable suspicion to order Crayton to submit to
substance abuse testing does not conclude the matter. There must further be a
determination whether the illegally obtained evidence was nevertheless admissible
at the hearing before the CSC.5 The CSC did not make a determination as to the
4 In fact, according to the evidence presented at the hearing, Williams did not observe any signs
of impairment on the part of Crayton. Further, Crayton testified that he was not impaired.
5 We note that, at the outset of the hearing, the hearing examiner noted Crayton’s objection to the
admissibility of the substance abuse test results based on lack of reasonable suspicion:
[HEARING EXAMINER]:
All right. And, the appellant contends that the appointing authority
lacked reasonable suspicion to conduct a test, and therefore, the
test is not admissible for purposes of taking disciplinary action;
would that be accurate also?
8
admissibility of the evidence. Rather, upon determining that SWB lacked
reasonable suspicion to subject Crayton to substance abuse testing, the CSC
concluded that Crayton was wrongfully terminated. We find that the CSC erred in
failing to determine the admissibility of the substance abuse testing evidence and
proceed to make such a determination.
Under the exclusionary rule, evidence obtained in violation of the Fourth
Amendment cannot be used in a criminal trial. State v. Davis, 375 So.2d 69, 73
(La. 1979) (citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081
(1961)) (additional citation omitted); see also La. C.Cr.P. art. 703(A)(“A defendant
adversely affected may move to suppress any evidence from use at the trial on the
merits on the ground that it was unconstitutionally obtained.”).
In Pullin v. Louisiana State Racing Commission, 484 So.2d 105 (La. 1986),
the Louisiana Supreme Court considered the issue of whether evidence that was
illegally obtained by state police officers would still be admissible in a civil
administrative proceeding before the Racing Commission. In that case, the Racing
Commission suspended an owner and trainer of a racehorse after prohibited drugs
were found in his stable area by state police officers, in violation of the racing rule,
which banned the use of these particular drugs. Id. at 105. The Supreme Court
found the drugs were obtained illegally, as the search was not authorized or
consented to by the horse owner/trainer. Id. at 106. The balancing test in Pullin
was used to determine whether the Racing Commission’s violation of
[COUNSEL FOR CRAYTON]:
Yes, that’s correct.
At the conclusion of the hearing, the hearing examiner requested that the parties submit
memoranda on “the issue of whether or not there was reasonable suspicion to conduct the
[substance abuse] test.”
9
owner/trainer’s Fourth Amendment rights warranted exclusion of the illegally
obtained evidence.
Applying the “balancing test” of United States v. Janis, 428 U.S. 433, 96
S.Ct. 3021, 49 L.Ed.2d 1046 (1976), the Court held that the exclusionary rule did
not apply in civil proceedings before the Racing Commission because the likely
social costs of excluding the unlawfully-seized evidence, a potential dishonest
racing industry, outweighed the likely social benefits of excluding the evidence,
the deterrent sanction value against the state law enforcement officers who illegally
seized the prohibited drugs. Pullin, 484 So.2d at 107-08.
In City of Alexandria v. Dixon, 15-1718 (La. 5/3/16), 196 So.3d 592, the
Supreme Court considered the issue of whether the results of breath alcohol tests
that were not administered in accordance with the city’s substance abuse policy
were admissible at a terminated employee’s hearing before the municipal civil
service board. In Dixon, a firefighter was terminated after random blood alcohol
tests administered to him registered a positive result. Id., 15-1718, p. 3, 196 So.3d
at 593-94. The city’s substance abuse policy set forth a “zero tolerance” policy and
provided that “[t]esting 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.” Id., 15-1718, p. 2, 196 So.3d at 593. The testimony elicited at the hearing
before the civil service board established that the breath alcohol tests were
performed on a device that was not approved by the Louisiana Department of
Public Safety and Corrections for determining blood alcohol content. Id., 15-1718,
p. 13, 196 So.3d at 600. The Supreme Court found that “any social benefit of
considering the excluded breath test results (which may include an emphasis on the
10
City correctly applying its own policy, and likewise, the employees being aware of
the regulations and related consequences of violations of the Policy) are
outweighed by the social costs of excluding the results (the risk of placing the
public in danger when their first responders may be under the influence of alcohol
while on duty)” and that “the [Pullin] balancing test requires the admission and
consideration of [the employee’s] failed breath alcohol test results.” Id., 15-1718,
pp. 12-14, 196 So.3d at 600.
We next perform the balancing test required by Pullin to determine whether
SWB’s violation of Crayton’s Fourth Amendment rights warrants exclusion of the
illegally obtained evidence.
Crayton admitted at the hearing that he operated SWB vehicle no. 39 on the
day in question. He further admitted that he operated a SWB vehicle, usually a
painter’s truck, every day at work. An employee’s operation of a vehicle while
under the influence of alcohol poses a threat to the safety of the public. Consistent
with Pullin and Dixon, we find that the social costs of excluding the results of
Crayton’s substance abuse tests (the risk of placing the public in danger when
SWB employees may be under the influence of alcohol while operating a vehicle
on duty), outweigh any social benefit of such exclusion (the deterrent effect on
SWB to correctly apply its own policy allowing substance abuse testing based on
reasonable suspicion). Accordingly, we find that the substance abuse test results
are admissible and should have been considered by the CSC. The CSC erred in
deciding the appeal without considering this evidence.
When a trial court makes one or more prejudicial legal errors, which
interdict the fact-finding process, the manifest error standard no longer applies,
and, where the record is complete, the appellate court must undertake its own de
11
novo review of the record. In re Succession of Sporl, 04-1373, p. 5 (La. App. 4 Cir.
4/6/05), 900 So.2d 1054, 1058 (citing Evans v. Lungrin, 97-0541, 97-0577, pp. 6-7
(La. 2/6/98), 708 So.2d 731, 735; McLean v. Hunter, 495 So.2d 1298, 1303-04
(La. 1986)). Where the trial court has erroneously excluded evidence, “[t]he court
of appeal must ... redetermine the facts [de novo] from the entire record (including
the proffered testimony) and decide the merits of the case.” Latour v. Steamboats,
LLC, 23-00027, p. 17 (La. 10/20/23), 371 So.3d 1026, 1040-41 (parenthetical in
original). We therefore must conduct a de novo review of the entire record,
including the substance abuse test results, and decide whether Crayton violated
SWB’s substance abuse policy.
Ms. Boyd did not testify at the hearing, and SWB presented no evidence that
Crayton was present near the corner of Dumaine Street and Claiborne Avenue,
where Ms. Boyd reported that two SWB employees were “drinking beer on the
clock.” Further, SWB presented no testimony that Crayton consumed alcohol on
the day in question, nor was there any evidence of unusual conduct on Crayton’s
part which might indicate that he was under the influence of alcohol. To the
contrary, Edwards testified that Williams told him that he did not observe any
signs of impairment on the part of Crayton during his interaction with Crayton.
Crayton testified that he and his son drank “a little over a six-pack” of beer
the night before the alleged incident while celebrating his son’s birthday at home.
He stated that he and his son started drinking at around 7:00 p.m. and stopped
around 12:00 a.m. or 1:00 a.m. Crayton denied consuming alcohol during the day
in question and stated that he was not impaired that day. Further, he denied being
in the vicinity of Dumaine Street and Claiborne Avenue at any time that day.
12
The SWB policy expressly prohibited employees, while working or while
operating a SWB vehicle, from “[b]eing under the influence of alcohol,” which
was defined as “a confirmed positive test result for an alcohol concentration
greater than or equal to 0.02.” It is undisputed that Crayton was administered two
breathalyzer tests approximately nineteen minutes apart and that the tests indicated
a blood alcohol concentration of .036% and .030%, respectively. Based on the
evidence, we find that SWB proved that Crayton violated its policy that employees
from being under the influence of alcohol while working.
However, we find that SWB failed to prove that the disciplinary action
imposed, i.e., termination, was commensurate with Crayton’s offense.
Termination from permanent employment is “the most severe form of
disciplinary action that can be taken by the [a]ppointing [a]uthority, and should be
reserved for the most serious violation.” Matusoff v. Dep’t of Fire, 19-0932, pp. 7-
8 (La. App. 4 Cir. 5/20/20), 364 So.3d 240, 245 (quoting Matthews v. Dep’t of
Police, 98-0467, p. 8 (La. App. 4 Cir. 11/18/98), 723 So.2d 1044, 1049). In
determining whether discipline is commensurate with the infraction, the CSC
“considers the nature of the offense as well as the employee’s work record and
previous disciplinary record.” Id., 19-0932, p. 8, 364 So.3d at 245 (citing Hills v.
New Orleans City Council, 98-1101, p. 7 (La. App. 4 Cir. 12/9/98), 725 So.2d 55,
58).
In Durning v. New Orleans Police Dep’t, 19-0987 (La. App. 4 Cir. 3/25/20),
294 So.3d 536, this Court held that the disciplinary action of termination was not
commensurate with a police officer’s violation of the police department’s policy
regarding the use of alcohol while on duty. In that case, a New Orleans Police
Department (“NOPD”) police officer traveled in the department’s vehicle to his
13
annual firearm recertification training. Id., 19-0987, p. 1, 294 So.3d at 537. After
the training, the officer interacted with the range instructor; during that interaction,
the range instructor detected the smell of alcohol on the officer’s breath. Id. The
instructor notified a detective of NOPD’s Public Integrity Division, who also
noticed the smell of alcohol on the officer’s breath. Id. The detective transported
the officer to Innovative Risk Management, where he was given two breathalyzer
tests approximately twenty-five minutes apart. Id., 19-0987, p. 2, 294 So.3d at 537.
The tests indicated a blood alcohol concentration of 0.063% and 0.058%,
respectively. Id.
After a disciplinary proceeding, the officer was terminated for violating the
department policy that prohibited the use of alcohol while on duty.6 Id. He also
received a one-day suspension for violating the department policy that prohibited
the operation of a city vehicle while under the influence of alcohol.7 Id., 19-0987,
pp. 2-3, 294 So.3d at 537-38. The officer appealed his termination to the CSC. Id.,
19-0987, p. 2, 294 So.3d at 538.
6 The department policy prohibiting the use of alcohol on duty provided as follows:
Members shall not drink intoxicating beverages while on duty
except in the performance of duty and while acting under proper
and specific orders from a superior officer. Members shall not
appear for duty, or be on duty, while under the influence of
intoxicants to any degree whatsoever, or with an odor of
intoxicants on their breath.
See Durning, 19-0987, p. 2, 294 So.3d at 538.
7 The department policy prohibiting the operation of a city vehicle while under the influence of
alcohol provided, in pertinent part, as follows:
An employee or other whose blood alcohol level (BAC) is at or
over 0.04% during work time or while operating City
vehicles/equipment is in violation of the Substance Abuse Policy.
Id.
14
The testimony presented to the CSC established that the day before the
training was the officer’s birthday. Id., 19-0987, p. 4, 294 So.3d at 539. The officer
testified that he had watched a baseball game and drank some vodka and four or
five beers before going to bed. Id. The officer further stated he woke up around
3:30 a.m. to get to the shooting range for 5:00 a.m. Id. He testified that he left his
house without showering. Id. He claimed that at no time that morning did he feel
impaired or did he believe he was under the influence of alcohol. Id.
The CSC also heard the testimony of a sergeant in NOPD’s Public Integrity
Bureau. Id. According to the sergeant’s testimony, he received a phone call
advising of an officer under the influence. Id., 19-0987, pp. 4-5, 294 So.3d at 539.
He confirmed that although the range instructor and the Public Integrity Division
detective detected the smell of alcohol on the officer, neither officer noticed any
signs of cognitive or physical impairment. Id., 19-0987, p. 5, 294 So.3d at 539. The
sergeant instructed the detective to transport the officer to the Innovative Risk
Management office, where the sergeant met them. Id. The sergeant confirmed that
during his interaction with the officer, the officer showed no physical or cognitive
signs of impairment. Id.
The CSC granted the appeal in part, reinstating the officer and reducing his
penalty to an eighty-day suspension for his violation of the policy prohibiting the
use of alcohol while on duty, and denied the appeal in part, affirming the one-day
suspension for the driving violation. Id., 19-0987, pp. 2-3, 294 So.3d at 538.
NOPD appealed the CSC’s decision. Id., 19-0987, p. 3, 294 So.3d at 538. This
Court agreed with the CSC in finding that the NOPD had not “established
sufficient aggravating circumstances to warrant termination of an eleven-year
15
veteran for the first-time violation of the rule against use of alcohol while on duty”
and affirmed the CSC’s decision. Id., 19-0987, pp. 7-8, 294 So.3d at 540.
We find in the case sub judice that SWB failed to prove that termination was
commensurate with Crayton’s offense. Crayton worked for SWB for over six
years. The appeal record contains no evidence of any previous disciplinary action
taken against Crayton, much less disciplinary action for violating the substance
abuse policy, nor does the record contain any evidence that Crayton’s work history
was unsatisfactory. Further, no evidence was presented that Crayton was impaired,
and his blood alcohol level was well within the blood alcohol level permitted under
Louisiana’s DWI statute.8 Moreover, Crayton testified that he did not drink any
alcohol on the day in question and was not impaired on that day. He theorized that
his positive blood alcohol test result could be attributed to his consumption of
alcohol the night before. Under the SWB substance abuse policy, rehabilitation is
an appropriate course of action the first time an employee tests positive for alcohol
or drugs.9 The record is devoid of any evidence that SWB considered rehabilitation
as an appropriate sanction for Crayton’s violation of the substance abuse policy.
8 La. R.S. 14:98 provides, in pertinent part:
A. (1) The crime of operating a vehicle while intoxicated is the
operating of any motor vehicle . . . when any of the following
conditions exist:
...
(b) The operator’s blood alcohol concentration is 0.08 percent or
more by weight based on grams of alcohol per one hundred cubic
centimeters of blood.
9 SWB’s substance abuse policy provides, in pertinent part, as follows:
The first time a regular employee tests positive for alcohol or
illegal drug use under this policy, will result in an immediate
suspension without pay, until the SWB[] at its discretion may
determine if rehabilitation or termination is the appropriate course
of action. . . . The second time a regular employee tests positive for
alcohol or illegal drug use under this policy, will result in
termination of employment.
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Consequently, we find on the record before us, that there is no rational basis to
conclude that Crayton’s infraction is deserving of the most extreme level of
discipline possible. Under the circumstances of this case, we find that an eighty-
day suspension without pay is the appropriate disciplinary action.
CONCLUSION
For the foregoing reasons, we find, after conducting a de novo review of the
evidence in the record, that Crayton violated SWB’s substance abuse policy.
Therefore, we reverse the judgment of the CSC, which found that Crayton was
wrongfully terminated and reinstated Crayton with back pay and all other
emoluments of employment. However, we find that termination is an excessive
disciplinary action not commensurate with Crayton’s violation of the substance
abuse policy and that an eighty-day suspension without pay is the appropriate
disciplinary action. Consequently, we order SWB to reinstate Clayton, subject to
the suspension for eighty days.
AFFIRMED IN PART; REVERSED
IN PART; RENDERED
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