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Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #008 FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinion handed down on the 6th day of February, 2009, is as follows: BY WEIMER, J.:

2008-C-1044 C/W 2008-C-1623

JOHN KEITH RICHARD v. LAFAYETTE FIRE AND POLICE CIVIL SERVICE BOARD AND LAFAYETTE CONSOLIDATED GOVERNMENT (Parish of Lafayette)

Calogero, C. J., retired, participated in this decision which was argued prior to his retirement. Accordingly, in 2008-C-1044, consolidated with 2008-C-1623, we affirm the judgment of the court of appeal in favor of Officer John Keith Richard. JUDGMENT AFFIRMED. JOHNSON, J., dissents and assigns reasons. VICTORY, J., concurs. TRAYLOR, J., dissents for reasons assigned by Knoll, J. KNOLL, J., dissents and assigns reasons.

02/06/09 SUPREME COURT OF LOUISIANA
No. 08-C-1044 c/w 08-C-1623 JOHN KEITH RICHARD VERSUS LAFAYETTE FIRE AND POLICE CIVIL SERVICE BOARD AND LAFAYETTE CONSOLIDATED GOVERNMENT
On Writ of Certiorari to the Court of Appeal, Third Circuit, Parish of Lafayette

WEIMER, Justice1 We granted certiorari in this matter to examine whether reasonable suspicion existed to justify ordering a police officer to submit to a non-random drug screen. After reviewing the record, we conclude the appointing authority did not carry its burden of proving reasonable suspicion as outlined in the police department's policy manual. Thus, we affirm the court of appeal which reversed the dismissal of the police officer. FACTUAL BACKGROUND On August 2, 2005, John Keith Richard, a 10-year veteran with the Lafayette City Police Department, was terminated from his position on the grounds that he had tested positive for stanozolol, an anabolic steroid commonly known by the brand name "Winstrol," in a drug test administered on June 16, 2005. Richard's termination was upheld by the Lafayette Fire and Police Civil Service Board (Board) after a hearing

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Calogero, C.J., retired, participated in this decision which was argued prior to his retirement.

on May 23, 2006. The drug testing and the eventual termination were the result of circumstances surrounding a drug raid conducted by a team of the Lafayette Metro Narcotics Task Force (Metro) on June 9, 2005. Richard and three other Lafayette police officers had performed authorized offduty security work at Club 410, a nightclub located in downtown Lafayette, Louisiana. Richard was head of security at Club 410. Officers Jason Galatas and Brian Baumgardner worked security there during June of 2005. Officer Trampus Gaspard had worked security there in the past. Three civilian employees at Club 410, Chad Cormier, Jason Segal, and Jesse Walton, were acquaintances of the police officers. Chad Cormier and Segal lived in different apartments in the same building located on Meaux Boulevard. Segal and Chad's brother, Marc Cormier, shared an apartment that was directly across the hall from Chad's apartment. Walton was plaintiff Richard's roommate in a different complex at another location. On the evening of June 9, 2005, Officer Jason Herpin2 was on an assignment with his training officer, Kane Marceaux, and Officer Baumgardner when he received a call on his cell phone from Officer Galatas. Galatas told Herpin that he had some information to share with him that must be kept between the two of them. He reported he had left Segal's apartment about a half hour before where he had seen an ice chest which Segal said contained a stash of marijuana. When he was leaving, Segal told him that he (Galatas) and plaintiff Richard should not go back to the apartment because his roommate (Marc Cormier) had about 20 pounds of marijuana there.

Officer Herpin had done undercover work at Club 410 in the past, but was a newly assigned member of a Metro team on the date of the raid. 2

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Officer Herpin then text-messaged Officer Baumgardner advising him he had to talk to him about 20 pounds of marijuana. Subsequently, Herpin told Baumgardner and Officer Marceaux about the call from Officer Galatas. Herpin also reported that Galatas wanted to avoid involvement in the investigation because he thought Marc Cormier was the person supplying Officer Gaspard with his steroids. Baumgardner and Marceaux called their supervisor, Sgt. Gabriel Thompson, and told him they had to talk to him immediately. When Sgt. Thompson returned to the office, Herpin was on the phone with Galatas. Sgt. Thompson took the phone from Herpin; Galatas identified himself and told Thompson he had seen the marijuana about 30 minutes earlier. Galatas stated he would like to be left out of the

investigation as much as possible, but did not tell Sgt. Thompson it was because he had heard Officer Gaspard was getting his steroids from that apartment. Galatas also did not relate to Thompson that Segal had warned him about staying away from the apartment. Sgt. Thompson and Officers Baumgardner, Marceaux, and Herpin got into a police unit and drove to Meaux Boulevard. In route, Thompson contacted Agent Brent Taylor and asked him to meet them with a K-9 unit. The officers located the Segal/Cormier apartment and knocked on the door. Taylor ran his dog along the door, but with no response. They could hear voices inside the apartment, so Thompson ordered Marceaux to kick the door in. There was no one inside the apartment, the voices having come from a television set. The officers observed an ice chest near the door; they also saw a plate with marijuana in it. Eventually, bottles of steroids and other drug-related items were seized when the apartment was searched pursuant to a warrant.

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While all four officers were there, the daughter of the owner of the apartment building arrived and provided information concerning the tenants. Thereafter, the officers knocked on the door of Chad Cormier's apartment and asked if Marc was there. When they were told he was not, the officers had Chad and other occupants cross the hall and wait in the Segal/Cormier apartment. According to Sgt. Thompson, everything was happening quickly. As

supervisor, he was inside the apartment taking pictures of what they had recovered. Thompson was not concerned about safety because they had an adequate number of officers present to have the entrance secured. At some time during the raid, Marceaux and Herpin left the scene to procure a search warrant; Taylor was assigned to park his marked unit across the street in case the suspects returned to the apartment; and Thompson stayed at the apartment. At the time of the raid, Richard, who had never worked narcotics, was on light duty because he was recovering from surgery. His only involvement with the raid occurred after he received a telephone call from Marc Cormier who reported that plain-clothes policemen, including a K-9 officer, had broken into his apartment. Richard knew that the K-9 officer would be Taylor, so he called him to find out the identity of the agents conducting the raid. Thereafter, Richard, according to his sworn testimony, called Officer Baumgardner and told him that he had received a phone call from Marc Cormier, who was in the apartment of his brother, Chad, across the hall. Richard was told the officers were busy at the time, and Baumgardner indicated he would call back later. Baumgardner called back and instructed Richard to persuade Marc to return to his own apartment. This instruction was verified by Sgt. Thompson and Baumgardner, neither of whom expressed concern for their safety at the Segal/Cormier apartment.
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According to Richard, Marc wanted to flee because he was afraid the police would beat him if he turned himself in. After telling Marc to stay put, Richard talked to Baumgardner again and gave Baumgardner Marc's number so he could convince Marc to surrender. Shortly after talking to Officer Baumgardner, Marc Cormier turned himself in and was questioned on the scene by Officers Herpin and Marceaux. Marc expressed his belief that Officer Galatas had provided the information that led to the search of his apartment because Galatas knew everything that was going on in the apartment; he did not mention Richard. Additionally, Marc Cormier cooperated with the officers and gave them information about a Dulles Street location where drugs could be found, which resulted in another raid conducted on the same day. Plaintiff Richard was not acquainted with any of the individuals involved in the drugs recovered at that second location. On the Wednesday following the raid on the Segal/Cormier apartment, June 15, Sgt. Thompson consulted Sgt. Darryl Fontenot, an Internal Affairs (IA) officer, solely to express concerns he had about Officer Galatas; Thompson indicated he did not file drug charges against any police officers. His concern at that time was centered only on Galatas, who had been reluctant to get involved with the drug raid and who had resisted giving his name for the warrant to search the Meaux Boulevard apartment. Additionally, Thompson's concern was that personally he had heard Marc Cormier state that if Officer Galatas "wasn't the one who sent y'all to his apartment, he should have [been] because he knows what goes on over here." In his testimony to the Board, Sgt. Thompson denied making any complaints against Officers Gaspard or Richard on Wednesday, June 15. The Board chairman specifically asked Thompson: "Did you not file the complaint on the premise that there was [sic] steroid issues with the
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gentlemen that are sitting here today, Mr. Gaspard and Mr. Richard?" Thompson's answer was "No, sir." He then explained his "issue was with Galatas." Another member of the Board queried Thompson about Sgt. Fontenot's testimony that Thompson provided him information on June 15 implicating Gaspard and Richard with steroids. Thompson's answer to the Board member was: "No, because specifically ... you refer to my [June 16th] statement[;] it only mentions the information I got from Herpin in relation to Agent Gaspard." Thompson verified to the Board that he did not mention anything about Richard to Sgt. Fontenot on June 15. On June 15, IA Sgt. Fontenot immediately reported Thompson's concerns to his superior on the IA team, Cpt. Mike Lavergne. Lavergne then notified Police Chief Randy Hundley of information derived as a result of a raid on Meaux Boulevard. According to the Chief, Cpt. Lavergne stated that following the raid of the apartment, there was concern about Gaspard, Richard, Galatas, and Herpin. The Chief answered "yes" to: "And at that point, was the decision made by you, as the appointing authority, to have a reasonable-suspicion drug test performed of these four individuals?" When questioned about his reasons for ordering the drug tests of the four officers, the Chief agreed with the following summation. "You had an officer relaying information about possible steroid use [by Gaspard] and steroids being found." "You had another officer [Richard] being engaged with these individuals who were later arrested for illegal drugs." "You had an officer [Galatas] being reluctant to participate in the investigation and give his name." "And you had another officer [Herpin] that it was thought held the information or sat on it for an extended period of time." Although the drug screening tests were ordered by Chief Hundley, the appointing authority, on Wednesday, June 15, it was not until the next day, Thursday,
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June 16, that Cpt. Lavergne and Sgt. Fontenot conducted an investigation, recording statements and getting written statements from several officers, including Sgt. Thompson who had first alerted the IA officers about his concerns regarding Officer Galatas. Late in the day of June 16, urine samples were collected from the four suspect officers whom the Chief had ordered to be tested the previous day. Both Gaspard and Richard tested positive for steroids. In July of 2005, a pre-termination hearing was scheduled and conducted. Both Gaspard and Richard presented evidence of having taken diet supplements, which they blamed for the positive results of steroids in their drug tests. The pre-termination hearing resulted in the termination of the employment of Gaspard and Richard on August 2, 2005. On May 23, 2006, at the beginning of the hearing by the Board, Gaspard and Richard agreed that their cases would be presented at the same sitting. The Board heard testimony for 12 hours. At the end of the proceedings, the Board voted to reverse Gaspard's termination based on lack of reasonable suspicion to order the drug test. Contrarily, the Board voted, three to one, to uphold the termination of Richard's employment. Richard perfected an appeal to the district court, which affirmed the Board's decision. Eventually, Richard appealed to the court of appeal and was successful in having his termination reversed. Richard v. Lafayette Fire and Police Civil Service Board, 07-1010, p. 5 (La.App. 3 Cir. 4/16/08), 983 So.2d 195, 199, reh'g granted, June 18, 2008.3 The defendants applied for a writ to this court, which we granted.

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On rehearing, the court of appeal assessed costs in the amount of $5,275.79 against the City. 7

Richard v. Lafayette Fire and Police Civil Service Board, 08-1044 (La. 9/19/08), 992 So.2d 967.4 DISCUSSION Any regular employee in the classified service who challenges his discharge as being without "just cause" has a right to a hearing and an investigation by the civil service board. LSA-R.S. 33:2501(A). Any employee under classified service whose termination of employment has been affirmed by a civil service board has a right to judicial review of the decision of the board, which review begins in the district court. LSA-R.S. 33:2501(E). The hearing in district court is confined to a determination of whether the decision made by the board was made in "good faith for cause." LSAR.S. 33:2501(E)(3). Following an unfavorable decision in the district court, Richard perfected an appeal to the Court of Appeal, Third Circuit. The appellate court reversed the dismissal of plaintiff Richard upon finding that the appointing authority was without "sufficient cause" to order the drug screen, and thus to terminate his employment after the screen was positive for steroids. Richard, 07-1010 at 5, 983 So.2d at 199. As a tenured employee of the Lafayette Consolidated Government, plaintiff Richard had a continued-employment right that could not be extinguished except pursuant to constitutionally adequate procedures. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed. 2d 494 (1985); La. Const. Art. 1,

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