Tuesday, March 19, 2019

Court Upholds Firing of Trooper

A trooper failed to get his job back at the Mississippi Highway Patrol last week. Hinds County Circuit Judge Faye Peterson threw out an Mississippi State Personnel Board order to reinstate James Richards after MHP appealed the decision to Hinds County Court.


JJ reported in January:

The Mississippi Department of Public Safety failed yet again in its attempt to purge a sissified trooper from the ranks of the Mississippi Highway Patrol.  The Mississippi Employee Appeals Board ordered DPS to reinstate with back pay Sergeant James Richards.  DPS fired Sgt. Richards for the unlawful use of controlled substances even though he was recovering from hip replacement surgery and had prescriptions for the drugs he used.

Sergeant Richards has been a trooper since 2000.  He suffered through a major hip replacement surgery in 2015 and was given several legal prescriptions.  The medications were opioids, a benzo, and a schedule II.  The Sergeant attended training and weapons qualification on October 31, 2016.  He "successfully qualified" with three different firearms.  However, DPS officials claimed he was acting sluggish and were "suspicious" he was "under the influence."

DPS made him submit to a drug test.  Sergeant Richards tested positive for all of his prescribed medications.  He did not test positive for any substance for which there was not a prescription. Earlier post. 

Unfortunately for the sissy, DPS fired him for the unlawful use of controlled substances even though he was following a physician's orders and had a valid prescription for all medications.   The good Sergeant appealed to the State Personnel Board.  The Appeals Board said DPS lied when it fired Sergeant Richards since is provided no evidence that he had illegally used a controlled substance.  DPS didn't even blink an eye but instead asked the Board to hear its appeal en banc.  DPS also shamelessly asked the Board to ignore the charge of "unlawful use" and said it was "harmless error.  You read that correctly.  DPS fires the poor trooper for a bogus charge of "unlawful use" of controlled substances even though he had a legal prescription and then tries to call it harmless error.  Um, yeah.

The Board ordered DPS to reinstate Sergeant Richards.  However, DPS Commissioner Marshall Fisher didn't slink away quietly into the night but instead appealed to Hinds County Circuit Court where he found a more favorable battleground.



Judge Peterson ruled on March 11 that MHP was justified in firing Sergeant Richards.  She said Richards violated a general order that classifies being on duty while under the influence of alcohol or impaired by the unlawful use of controlled substances.  She took note that MHP said Richards was sweating, sluggish, and appeared to be disoriented.  He tested positive for several drugs. She rejected Richards' arguments:

Richards held the burden of persuasion in the hearing before the Board. Richards argued that the substances confirmed on the drug screen and Prescription Monitoring Profile were not unlawful uses of a controlled substance because he had valid prescriptions. He, also, argued that he passed the firearm qualifications. Nonetheless, Richards did not present any evidence or testimony to refute the Department's expert witnesses and illustrate proper use of the medication. Further, he did not provide reasons why termination was sufficient grounds for his impaired behavior during in-service training.

In this Court's opinion, Richards did not supply substantial evidence to prove why the Department 's termination allegations were untrue.
The Court compared Richards case to that of a someone who drives under the influence of valid prescriptions.



17 comments:

StarRider said...

They finally got this right. The trooper would be fine at a desk somewhere until he no longer needed the pain meds, but if he was visibly under the influence he had no business operating a firearm, or driving, or any other activity where any result of his diminished ability might hurt someone else. No, he's not a "sissy" for needing pain meds, but if he doesn't have enough sense to know that he doesn't need to be at the gun range while he's intoxicated then he clearly needs to find another career. I bet he wouldn't hesitate to arrest someone driving on the highway under the same conditions.

Anonymous said...

I hate he lost his job for this. He should have been on medical leave. Agree he can't be out in the field in that condition. Just unfortunate either way.

Anonymous said...

"...he did not provide reasons why termination was sufficient grounds for his impaired behavior during in-service training."

She said that backwards.

Anonymous said...

I'm so sorry JJ. Your defense of the trooper and dis like of the Commissioner finally fell to good reason. Hard to believe it came from rookie Judge Peterson, but maybe it's just another example of blond hog theory.

Anonymous said...

The question is not whether he should have been on duty, let alone firing a gun or driving a car while under the influence, but the question is whether he was in fact UNLAWFULLY using a controlled substance. Assuming his use of prescribed drugs was consistent with his prescription and he wasn't doing anything else that's illegal to do while intoxicated (such as driving), then he was probably NOT breaking any law and the DPS didn't have a case. DPS probably should have had a rule about showing up to work under the influence of any intoxicating, judgment or sensory altering, or sleep inducing drug, even when it's a legal prescription. Further, such an act with a prescribed drug should be covered by a much lesser discipline, since he likely didn't break a law. Had he broken a law, DPS could have not only fired him, but also charged him with the infraction, as they are sworn to do. But DPS ain't known for following any law. They make it up to suit themselves. Reputations are earned.

Anonymous said...

You would think that drug cocktail he was prescribed would have automatically disqualified him from operating a firearm or having the legal authority to arrest people. I thought Benzos were only for psych issues? Are there not any laws regarding drugs that officers can't take and still be on duty? Must be one of those 'do as I say not as I do' situations.

Anonymous said...

What I find amazing is that they cracked open this guy's medical record without consent and started plundering to see what they could see.

This is a pretty egregious HIPAA violation to view someone's PMP profile without written consent or reasonable suspicion of a crime (which they found zero evidence of).

If you don't think they're not running these PMP lookups at DPS on everyone they are curious about, I've got a bridge to sell you.

There is no independent audit process for these records to ensure they're being used for lawful purposes by DPS/MBN.

Kingfish said...

Dislike? You mean holding people accountable is a dislike? You, sir, define privilege.

I've covered this story pretty fairly. Everything has come off of the official records. Was it the Kingfish who said DPS lied? Nope, It was the personnel board.

Anonymous said...

KF - Yes, it was KF that said DPS lied - in your previous post. The personnel board might also have said so, but your enlightened commentary said so also. That, my friend, after making comments such as "the "Fifth Floor Fops" in their "vendetta against the trooper"; “Make no mistake, the MS DPS doesn’t think it is above the law, but it can create the law out of thin air;" and "…DPS repeatedly lying as it persecuted a veteran trooper…” And then a complete paragraph discussing Fisher’s fight against what you consider to be perfectly acceptable opiod use in any situation.

If you call that being "pretty fairly" reporting the case (of course, read alongside your many other attacks on DPS - justified or not - does provide for a reasonable person to recognize your dislike of the DPS officials. In fact, that was probably a very understated way to refer to your thinking of Fisher et.al.

Anonymous said...

If there isn't a policy at DPS in place to address officers who are taking these types of medication by prescription, then this case demonstrates the need for one.

As to the Circuit Court's order, I think the court failed to address the real legal issue, which is whether the officer's drug use was lawful. If the record before the Board of Appeals contained substantial evidence to support the decision that the officer's drug use was not unlawful, then the Board of Appeals must be affirmed. Confusing the issue with Worker's Comp. accident cases and DUI convictions, to me, demonstrate a lack of understanding.

Anonymous said...

11:50 a.m.: You're obviously poorly informed and have probably never been exposed to an employee handbook. Your claim that it's ok as long as he was taking drugs legally prescribed is wrong.

Just as surely as you can be convicted of operating a vehicle recklessly while taking your prescription meds, you are in violation of written company/agency policy if you are taking certain prescription meds while on the job if they are, for example, opiods, and you are behaving and functioning as this man was. Read the labels and then read the employee handbook and company/agency policies.

Anonymous said...

No HIPAA violation for the police. They are not a provider, such as doctor, pharma, nurse etc.

Anonymous said...

Not a HIPAA violation but it could be an ADA violation. The ADA requires medical files be maintained separate (and restricted) from personnel files.

Anonymous said...

A state judge, who is in indentured to state, hoping for a raise from the state, etc came in a did a CYA job for the state and they see it as a win. Although there is typically no need for a reason in Mississippi, the reason given is a big pile of crap.

Unlawful use? 12:29, that’s up for interpretation. The day we let the state of Mississippi start interpreting acts of Congress on the daily by judicial fiat is the Day we all lose.

This falls under what most would consider an OSHA violation rather than it does a ‘violation of the law’/unlawful use.
I will sit here and wait for some Deep South explanation of how him simply taking the medicine prescribed was illegal.

Anonymous said...

10:44, this is 11:50. Go back and read my comment - that's what I said. THEY (DPS) said the firing was for ILLEGAL drug use. They (not I) said it was for ILLEGAL use. And FYI, I was very informed on the employee handbook for my state agency for over 34 years. Go back and re-read my comment. I apologize if it wasn't clear enough.

Anonymous said...

8:00 A.M. Get a clue. Your first paragraph shows complete ignorance - your concept of the judicial system and structure is idiotic.

Thought that was about as bad as it could get --- until I read your second and then the third paragraph.

Take your meds, or learn a few basic realities, or do something to educate yourself before you try this again. Please, for your sake.

Anonymous said...

@8:00 I have clue. The only thing INFERRED (not proven absent other integral evidence) for unlawful use of controlled substances is a clip from a transcript that insinuates the employee improperly took and/or acquired prescription medications by doc shopping more or less.

But FOR the statute that requires the burden of proof to be on the employee of the state rather than the state, the state would have lost.

MDPS even removed the ‘unlawful use’ accusation @ the personelle board. Merely under the influence. There is a difference and the order acknowledges that. It also acknowledges by omission that he was out-resourced in this endeavor.

This incident happened in 2015 (the initial injury). Here’s the real question: why wasn’t he on some sort of leave? There’s no way they didn’t know about the malady. I’m assuming that he would have been fired for taking appropriate leave time as well.

Those right-to-work laws have us going places like #51 on median income per business insider. Oh, and if people weren’t allowed to disagree with an order/outcome the appellant court system would literally just fall apart. But yes, I’m a commoner who is completely ignorant of the Judical system and I should agree because you say so. Now let me go find those meds you claim I have......

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