
    George CALDWELL v. CADDO LEVEE DISTRICT.
    No. CA 88 0175.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1989.
    Rehearing Denied Dec. 15, 1989.
    Writ Denied Feb. 16, 1990.
    Pat Harrington, Shreveport, for appellant.
    Kim Hanson Lavigne, Schober and Brab-ham, Glenn Walker, Shreveport, for appel-lee.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for Herbert L. Sumrall, Director, Dept, of State Civil Service.
    Before EDWARDS, WATKINS, SHORTESS, SAVOIE and CRAIN, JJ.
   EDWARDS, Judge.

From a decision of the Civil Service Commission upholding a termination, the employee has. appealed.

FACTS AND PROCEDURAL HISTORY

This appeal is the result of a long, drawn-out series of determinations made concerning criminal charges brought against Mr. George Caldwell which led to his dismissal from his position as a classified Foreman I for the Caddo Levee Board (Board).

Mr. Caldwell was a fourteen-year employee of the Board when he was dismissed as a result of alleged criminal activity involving the sale and use of drugs. After being arrested and charged with three felony counts of illegal distribution of marijuana, Mr. Caldwell was suspended from his position with the Board. Later, after trial by jury, Mr. Caldwell was acquitted of two of the counts and found guilty on the third count of the lesser and included offense of attempted distribution. As a result of the conviction, but before the conviction was final, Mr. Caldwell was dismissed from his employment with the Board. We note that Mr. Caldwell’s dismissal was based upon the same factual allegations which were the basis of the criminal proceedings. These facts were said to constitute a violation of the Board’s rules sufficient to justify dismissal.

On July 23, 1986, the Board, as a result of an earlier decision of the Civil Service Commission reinstating Mr. Caldwell, sent Mr. Caldwell a letter informing him of his reinstatement, and at the same time, gave him notice to appear in order to give cause why he should not be terminated on July 25, 1986. On July 25, 1986, the Board again terminated Mr. Caldwell, who then appealed the termination. After a hearing, the referee, on February 19, 1987, ordered Mr. Caldwell reinstated with back pay.

Both the Board and Mr. Caldwell appealed the decision of the referee to the Commission, the Board asking that the decision of the referee be overturned, Mr. Caldwell asking that he be reinstated to the position to which he would have been promoted absent the termination and that the Commission award attorney’s fees.

On June 8, 1987, the Commission overturned the decision of the referee and remanded the case to the referee for further findings of fact and proceedings dealing with how Mr. Caldwell’s conviction, still on appeal, constituted an impairment sufficient to justify dismissal. The referee, after another hearing, again reinstated Mr. Caldwell, imposing only a thirty-day suspension.

Again, both the Board and Mr. Caldwell appealed to the Commission for a review of the referee’s decision. On September 22, 1987, the Commission reversed the decision of the referee and upheld the termination of Mr. Caldwell, who then appealed to this court. Because of subsequent events concerning the criminal charges against Mr. Caldwell, the facts of which formed the basis of his termination, we feel constrained to reverse.

LAW

Article X, Section 8(A), of the Louisiana Constitution requires that there be cause for the removal of a permanent classified employee. “Legal cause for disciplinary action exists when the conduct complained of impairs the efficiency of the public service and bears a real and substantial reíation to the efficient and orderly operation of the public service in which the employee is engaged.” Appeal of Brisset, 436 So.2d 654, 656 (La.App. 1st Cir.), writ denied, 441 So.2d 749 (La.1983); see also Newman v. Department of Fire, 425 So.2d 753 (La.1983), and cases cited therein.

Additionally, as was stated by this court in Brown v. L.H.H.R.A., 346 So.2d 758 (La.App. 1st Cir.1977):

“The mere arrest and incarceration of a classified employee is not per se legal cause for dismissal. It is necessary to consider the circumstances of the arrest and the needs of the employer to determine if sufficient cause for dismissal exists. Factors to be considered in relation to the impairment of job performance include, but are not limited to: the validity and ultimate disposition of the charges, the length or possible length of incarceration, and the degree of resulting notoriety.” (emphasis added).

346 So.2d at 762.

Mr. Caldwell, at the time of his termination, had been arrested and found guilty of only one count of the lesser and included offense of attempted distribution of marijuana. That conviction had not become final and had, in fact, been appealed to the Louisiana Supreme Court. Because the conviction was not final, the Commissioner should have considered those factors called for in Brown.

The Louisiana Supreme Court in State v. Caldwell, 504 So.2d 853 (La.1987), reversed Mr. Caldwell’s conviction, finding that evidence which the trial court excluded from the jury was essential to Mr. Caldwell’s defense. The evidence which Mr. Caldwell had attempted to introduce dealt with conversations between members of the Board and others about a purported vendetta against Mr. Caldwell. About that evidence, the Supreme Court in Caldwell stated:

Braden’s testimony was offered to show that certain members of the Levee Board’s management were willing to go beyond the bounds of the law in terminating Caldwell, which was crucial to the defense theory of entrapment.... The jury may have inferred that members of the Levee Board’s management had embarked on a vendetta against Caldwell.

504 So.2d at 856.

We note, just as the Supreme Court did, that Mr. Caldwell would have been the first black man promoted into a supervisory position.

Brown lists the factors to be considered in cases where termination occurs as the result of an arrest. While Mr. Caldwell had been convicted, that conviction was not final. LSA-R.S. 42:1414 provides that termination of a state employee shall take place after appellate review of the initial court proceedings is exhausted. In cases before that review is exhausted, those factors listed in Brown should apply.

In this case, Mr. Caldwell’s only conviction was reversed by the Louisiana Supreme Court on an evidence ruling dealing with the heart of the allegations against him. A man is innocent until proven guilty. The allegations used in Mr. Caldwell’s criminal prosecution are the same as those which formed the basis of his dismissal. At the hearing, it was stipulated that the witnesses would testify just as they had at the criminal trial. While the burden of proof in Civil Service Commission proceedings and criminal trials is different, we believe it would be an injustice for Mr. Caldwell to be exonerated of the criminal charges brought against him, while allowing those same charges to form the basis of his job dismissal.

After a review of the record and the Louisiana Supreme Court’s decision in Caldwell, we find ourselves in agreement with the referee’s decision of February 19, 1987, wherein he stated:

The Referee concludes that appellee has utterly failed to prove any impairment to and/or detriemental [sic] connection with or relation to the efficiency or orderly operation of the State Service resulting from appellant’s conduct, arrest and/or conviction.
Accordingly, the appeal is hereby granted, the termination is reversed and appellant is hereby reinstated to his former position as of the close of business on July 25, 1986, and appellant is to receive all back pay from that date until reinstated, subject to an offset in favor of appel-lee for all wages earned and/or unemployment benefits received by appellant during that time. Appellee is further hereby ordered to remove the July 25, 1986 termination letter from appellant’s personnel file.

As instructed in Brown, the Commission should have considered the eventual disposition of the case. We fail to see how an allegation, later found to be without merit, could form the basis of dismissal of a fourteen-year classified employee who had reached the position of foreman and who had become eligible for further promotion. See Lombas v. Department of Police, 467 So.2d 1273 (La.App. 4th Cir.), writ denied 470 So.2d 120 (La.1985).

For the foregoing reasons, the decision of the Commission is hereby reversed. The decision of the referee of February 19, 1987, is hereby reinstated. Mr. Caldwell is to receive all back pay, subject to offset in favor of the Board, for all wages earned or unemployment benefits received by Mr. Caldwell during the period of his dismissal. All costs of this appeal to be taxed to the Caddo Levee Board.

REVERSED, REFEREE’S DETERMINATION REINSTATED.

SAVOIE, J., dissents with reasons.

SAVOIE, Judge,

dissenting.

From the majority opinion reversing the decision of the Civil Service Commission, and reinstating the plaintiff employee, I dissent. The plaintiff appealed from the Commission’s decision to terminate him, urging the following assignments of error:

1. The Civil Service Commission’s failure to address plaintiff’s request for summary disposition of defendant’s appeal from the Referee’s decision.
2. The Civil Service Commission’s finding that there was sufficient cause to terminate plaintiff based on implied impairment.
3. The Civil Service Commission’s failure to find that the termination letter sent to plaintiff did not express sufficient cause.
4. The Civil Service Commission’s failure to review the transcript of plaintiff’s criminal trial to discern testimony adverse to that of defendant’s witnesses presented at the hearing before the Referee.
5. The Civil Service Commission’s failure to reinstate plaintiff to a promoted position.
6. The Civil Service Commission’s failure to address plaintiff’s appeals from the Referee’s decisions.
7. The Civil Service Commission’s failure to address plaintiff’s “request for actions to be taken by the Civil Service Commission in accordance with La. Const, art. 10, § 10(a)(4).”
8. The Civil Service Commission’s termination of plaintiff as a penalty disproportionate to plaintiff’s alleged offense.

ASSIGNMENTS OF ERROR NOS. 1 and 3

Plaintiff initially contends that because defendant failed to follow a procedural rule of the Civil Service Commission when appealing the Referee’s decision, its appeal should have been disposed of summarily under Civil Service Rule 13.14a(3). Plaintiff contends that defendant did not follow Rule 13.36(b)6, which reads as follows:

“13.36 Application for Review of a Referee’s Decision.
(b) To be effective, an application for review of a referee’s decision must:
6. Contain a certificate that a copy of the application for review has been sent to the opposing party.”

I find that the Commission did not err in refusing to grant plaintiff’s request for summary disposition on this basis. While the letter requesting review of the Referee’s decision does not contain a Rule 13.-36(b)6 certificate, the brief attached to the letter does contain a certificate which says that a copy of the letter requesting review and brief were sent to the plaintiff’s attorney. I further note that the letter refers to an attached brief and that the letter and certificate are both dated July 24, 1987.

Plaintiff also contends that the July 23,' 1986 notice of a termination hearing on July 25, 1986 given to plaintiff did not give plaintiff sufficient notice of the disciplinary action because the letter does not set forth how the plaintiffs alleged conduct impaired the operation of the Levee Board. I find plaintiff’s contention to be without merit.

Rule 12.3 of the Civil Service Commission’s rules sets forth the requirements for notice of termination to an employee:

12.3 Procedure in Removals, Demotions and Reductions in Pay of Permanent Employees.
(a) In every case of removal, demotion, or reduction in pay for cause of a permanent employee, the appointing authority or his authorized agent shall:
1. Furnish to the employee at the time such action is taken, or prior thereto, a statement in writing giving detailed reasons for such action.
(c) For purposes of this Rule, ‘detailed reasons’ shall include at least a description of the misconduct for which the disciplinary action is being levied, the date, time and place of such misconduct, the names of persons directly involved in or directly affected by the misconduct (unless their identities are protected by state or federal statute or regulation, in which case, identification shall be made as permitted by such statute or regulation) and such other information as will fully inform the employee of the charge against him and will enable him to prepare a defense.

The purpose of Civil Service Commission Rule 12.3 is “to apprise the employee in detail of the charges and to limit any subsequent proceedings to the stated reasons.” University of New Orleans v. Pepitune, 460 So.2d 1191, 1193 (La.App. 1st Cir.1984), writ denied, 464 So.2d 315 (La.1985). After examining the letter of July 23,1986 (which set forth the seven reasons given in the July 25 letter) in light of the Civil Service rules and the jurisprudence, I find that the notice to plaintiff was sufficient.

ASSIGNMENT OF ERROR NO. 4

At the hearing before the Referee, the plaintiff and defendant stipulated that William C. Golden (a deputy sheriff working in the narcotics division) and Perry Sweet would testify to the facts exactly as they were set forth in plaintiff’s termination letter of July 25, 1986, and that these men had personal knowledge of these facts. Additional evidence supporting the allegations in defendant’s letter was the testimony of Joe Morris, a narcotics investigator with the Caddo Parish Sheriff’s office who was involved in surveillance of the October 26 and November 30 transactions. The plaintiff offered no evidence to deny the allegations set forth in the termination letter.

The Referee’s factual findings were in part based on the stipulations entered into at the hearing. The Referee made the following finding of fact:

4. The parties stipulated that both William C. Golden, an investigator with the Caddo Parish Sheriff’s Department, and Perry Sweet had personal knowledge of and would testify that on October 26, 1984, around 5:45 p.m. appellant met with Perry Sweet, who was acting as a confidential informant for the Caddo Parish Sheriff’s Department, at the New Dam Park area on Caddo Lake and sold Sweet marijuana for $75.00; that on November 2, 1984, around 6:10 p.m., at Rt. 1, Box 244, Belcher, Louisiana, appellant sold Agent Melvin Ashley, who was working with the Caddo Parish Sheriff’s Department, marijuana for $100.00; and that on November 30, 1984, around 4:45 p.m., appellant met with Sweet at the Gulf Station located on Highway 1 at Louisiana Highway 538 and sold Sweet marijuana.

Plaintiff contends that the Referee erred in failing to review the transcript of plaintiff’s criminal trial in order to read testimony adverse to defendant’s witnesses. Plaintiff’s contention can best be explained by quoting the language from his brief:

The Appellant contends that Referee Erschler, at the December, 1986 hearing, failed to address adverse testimony which was provided by the Appellant to be reviewed, and that the referee simply took as unrebutted, the testimony of the witnesses of the Caddo Parish Levee Board. It is our contention that the stipulation, if it was presented on the record as it was supposed to be, (and as was told to attorney for Mr. Caldwell that it was on the ^record), was that the testimony of the Levee Board witnesses would be the same as it was in a criminal trial, and said testimony was entirely discounted by the jury at the criminal trial. Therefore the only remaining count to which Mr. Caldwell was charged, is not applicable in this instance, as the Levee Board did not put on any testimony to substantiate that allegation.

I initially note that the stipulation was not that the testimony of witnesses Golden and Sweet would be the same as it was in the criminal trial; the stipulation, which was discussed extensively on the record, was that the two witnesses would testify to the allegations set forth in the termination letter exactly as they were given in the letter, and that they had personal knowledge of the facts. The Referee clearly understood the stipulation, as is evidenced by his factual findings.

Based on the stipulation and the testimony of Morris, there was unrebutted testimony before the Referee that plaintiff had engaged in drug transactions. Defendant met its burden of proving plaintiffs conduct and it was plaintiffs burden to overcome that proof. See Howard v. Housing Authority of New Orleans, 457 So.2d 834, 843 (La.App. 1st Cir.1984). Plaintiff failed to do so. Plaintiff never introduced or attempted to introduce the record of the criminal trial into evidence. The Referee could not make a factual finding based on evidence not in the record. Nor was the Referee bound by the jury’s factual findings in the criminal trial, an entirely different matter.

For these reasons, plaintiffs assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 2

In order to dismiss a permanent classified employee such as plaintiff, there must be cause. La. Const, art. 10, § 8(A). According to our jurisprudence, cause is conduct which impairs the efficiency of the public service being rendered and which bears a real and substantial relationship to the efficient operation of that service. See McIntosh v. Monroe Municipal Fire & Police Civil Service Board, 389 So.2d 410 (La.App.2d Cir.1980), writ denied, 395 So.2d 1363 (La.1981). The burden of proof is upon the appointing authority (defendant) who “must demonstrate, by a preponderance of the evidence, that the conduct did in fact impair the efficiency and orderly operation of the public service.” Newman v. Department of Fire, 425 So.2d 753, 754 (La.1983).

Plaintiff contends that because defendant did not prove that any of the conduct he engaged in occurred on defendant’s property or during plaintiff’s work hours, there was insufficient cause to dismiss him because the efficiency of the public service was not impaired. Defendant contends that while plaintiff engaged in the misconduct during off-duty hours, the conduct was such that he could no longer command respect from the employees he would supervise, nor could plaintiff enforce defendant’s rule prohibiting use or transfer or drugs.

This case was before the Civil Service Commission twice. In its first opinion, the Civil Service Commission reasoned as follows:

I made a thorough analysis of the jurisprudence on the subject of impairment and found that:
‘An analysis of these cases convinces us that an appointing authority must either show by affirmative evidence that the efficiency of the service was actually impaired, or, alternatively, must present facts from which the trier of fact can readily infer impairment of such service.’
At the time of the incident the Appellant was classified as a Foreman I. Our job specification for that class recognizes that ‘this is supervisory work in directing a small crew of laborers and maintenance workers engaged in performing routine construction and maintenance tasks.’ That is, the essence of the work of the Appellant is supervisory in nature. The appointing authority accused Appellant in their [sic] letter of termination with having dealt with a substance that has been labeled a controlled dangerous substance by the laws of this State. We take notice that organized society has strongly condemned the use and proliferation of drugs among its members and that such use and proliferation has come to be recognized as a very substantial problem by organized society. We find it to be a ready inference that where a state classified employee in a susperviso-ry [sic] position is found to have disregarded the laws dealing with controlled dangerous substances, the supervisory employee’s ability to command adherence from his subordinates to the other laws of society and/or the rules of his employer is significantly impaired. This seems to us even more so where the alleged violation, i.e. the selling of the controlled dangerous substance, was had with a co-employee. We believe that in such a case the effectiveness of the supervisor as a tool of higher management has been significantly impaired, and, consequently, the efficiency of the state service has been impaired. We also believe that depending upon the facts of each case the employee may have forfeited his right to employment in state classified service.

The Civil Service Commission reiterated these viewpoints the second time the case was appealed.

The Louisiana Supreme Court set forth the standards for review of a Civil Service Commission decision in the case of Walters v. Department of Police of New Orleans, 454 So.2d 106, 113-114 (La.1984):

Thus a multifaceted review function is committed to the court in civil service disciplinary cases. In reviewing the commission’s procedural decisions and interpretations of law the court performs its traditional plenary functions of insuring procedural rectitude and reviewing questions of law. Due concern both for the intention of the constitution and for the boundaries between the functions of the commission and of the court, however, demands that a reviewing court exercise other aspects of its review function with more circumspection. In reviewing the commission’s findings of fact, the court should not reverse or modify such a finding unless it is clearly wrong or manifestly erroneous. In judging the commission’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, the court should not modify the commission’s order unless it is arbitrary, capricious or characterized by abuse of discretion. (Citations omitted).

Reviewing the actions of the Civil Service Commission in this case in accordance with the standards set forth in Walters, I can not say that the Civil Service Commission abused its discretion in finding that defendant’s disciplinary action was based on legal cause. Although plaintiff’s conduct in selling marijuana did not occur during work hours or on defendant’s premises, the conduct did involve a co-employee on the three occasions where the plaintiff sold marijuana (a violation of both defendant’s rule and a state statute). Because the conduct involved a co-employee, I can not say the Commission erred in inferring that the plaintiff’s ability as a supervisor to “command adherence from his subordinates to the ... rules of his employer is significantly impaired.” For these reasons, plaintiff’s assignment of error has no merit.

The majority in its opinion focuses on whether the plaintiff’s arrest and conviction constitute sufficient legal cause for his termination, citing the case of Brown v. L.H.H.R.A., 346 So.2d 758 (La.App. 1st Cir.1977). Yet, as I have earlier stated, the Commission did not base its decision on the plaintiff’s arrest and conviction, but rather on the plaintiff’s conduct in selling marijuana to a co-employee. Thus, the case at bar differs from the Brown case because in Brown, the employee’s arrest and subsequent incarceration were the reason the employer terminated her.

ASSIGNMENTS OF ERROR NOS. 8 and 5

In Assignment of Error No. 8, plaintiff contends that the Civil Service Commission erred in imposing such a severe penalty as termination. Based on Walters, I must determine whether the Civil Service Commission’s action in terminating plaintiff was “arbitrary, capricious or characterized by abuse of discretion.” I can not say that the termination of plaintiff was arbitrary or capricious or that the termination was not commensurate with the infraction. Plaintiff violated defendant’s rule and a state criminal statute on three occasions and involved a co-employee in the violations. Plaintiff’s assignment of error has no merit.

In Assignment of Error No. 5, plaintiff contends that the Commission erred in failing to reinstate plaintiff to a promoted position. Because I would uphold the action of the Civil Service Commission in its termination of plaintiff, there is no need to discuss whether plaintiff should have been reinstated to a promoted position.

ASSIGNMENTS OF ERROR NOS. 6 and 7

In Assignment of Error No. 6, plaintiff complains that the Commission failed to address his appeals of the Referee’s decisions. In plaintiff’s appeal from the Referee’s decision on February 19, 1987, plaintiff contended that the Referee erred in failing to award plaintiff attorney’s fees and in failing to reinstate plaintiff in a higher position with defendant. In plaintiff’s appeal from the Referee’s decision on July 15, 1987, plaintiff contended that the Referee erred in his findings of fact and in his findings of implied impairment, and also contended that the Civil Service Commission should have investigated the defendant because the actions of its members are arbitrary and capricious.

In its first opinion, the Civil Service Commission reversed the Referee’s decision in favor of plaintiff and remanded the case to the Referee, thereby pretermitting for consideration whether plaintiff was entitled to attorney’s fees or to be placed in á promoted position. See Smith v. Department of Health & Human Resources, 461 So.2d 1243 (La.App. 1st Cir.1984), writ denied, 464 So.2d 316 (La.1985). In its second opinion, the Civil Service Commission upheld plaintiff’s termination and the actions of defendant. By its decisions I can conclude that the Civil Service Commission considered plaintiff’s contentions and rejected them. Thus, plaintiff’s contention that the Civil Service Commission failed to address its appeals is without merit.

I note that plaintiff did request attorney’s fees on appeal. Plaintiff’s contention that he is entitled to attorney’s fees rests on the action of this court in reversing or modifying the decision of the Civil Service Commission. Because I would uphold the decision of the Civil Service Commission, I need not address plaintiff’s request for attorney’s fees.

In Assignment of Error No. 7, plaintiff contends that the Commission did not address plaintiff’s request for actions to be taken by the Commission in accordance with La. Const, art. 10, § 10(A)(4) which reads as follows: “(4) Effect. Rules adopted pursuant hereto shall have the effect of law and be published and made available to the public. Each commission may impose penalties for violation of its rules by demotion in or suspension or discharge from position, with attendant loss of pay.” Plaintiff’s sole statement concerning Assignment of Error No. 7 is the following: “As is shown from the entirety of this record, the actions taken by the members of the Caddo Parish Levee Board, were not based upon sufficient legal cause and we would request that appropriate actions be instituted by Your Honors.” I find this assignment of error to be unclear, and therefore, any discussion thereof would be speculative and improper.

For the above and foregoing reasons, I find that the judgment of the Civil Service Commission should be affirmed and therefore I respectfully dissent from the majority opinion. 
      
      . For a full report of the facts concerning Mr. Caldwell’s alleged criminal activity, see State v. Caldwell, 504 So.2d 853 (La.1987).
     
      
      . In the letter from the Board to Mr. Caldwell informing him of his pending termination, the Board gave the following basis for Mr. Caldwell's dismissal:
      (1) In the first week of October, 1984, the Caddo Parish Sheriffs Department was asked to investigate the theft of fence posts belonging to the Caddo Levee District. During the investigation Perry Sweet, a Caddo Levee District employee, informed Agent Joe Morris that you were involved with drugs.
      (2) During the months of October and November, 1984, you were under investigation by the Caddo Parish Sheriff’s Department for your alledged [sic] involvement with drugs.
      (3) On October 26, 1984, around 5:45 P.M., you met with Perry Sweet, who was acting as a confidential informant for the Caddo Parish Sheriffs Department, at the new dam park area on Caddo Lake and sold him marijuana for $75.00.
      (4) On November 2, 1984, around 6:10 P.M., at Rt. 1, Box 244, Belcher, Louisiana, you sold Agent Ashley, an undercover police agent who was working with the Caddo Parish Sheriffs Department and was introduced to you by Perry Sweet, marijuana for $100.00.
      is) On November 30, 1984, in the early afternoon, Perry Sweet informed Sgt. Billy Golden that you wanted to sell him some marijuana for $100.00. Around 4:45 P.M., on the same date, you met Perry Sweet at the Gulf Station located on Highway 1 at Louisiana Highway 538, and sold him the marijuana. At approximately 5:05 P.M., you were arrested by Agents Miner, Morris and Sgt. Golden and booked on a charge of RS 40:966A, Distribution of Marijuana.
      (6) On June 7, 1985, you were tried before a jury and were found guilty of one count of attempted distribution of marijuana, a felony offense.
      (7) The above constitutes a violation of written agency rule # 2, which prohibits the use of or illegal possession of, or attempt to take part in the sale or illegal handling of drugs.
     
      
      . The prior proceedings are not a part of the record and are not before this court, but, in brief, Mr. Caldwell states that the decision of the Commission reinstating him to his position was the result of procedural deficiencies in the earlier termination.
     
      
      . Plaintiff argues that the personal knowledge of Sweet and Golden does not extend to the November 2, 1984 transaction wherein plaintiff allegedly sold marijuana to Agent Ashley. Yet I note that Morris testified as to his observation of this transaction on November 2, 1984, from a surveillance position.
     
      
      . When convicted by the jury of attempted distribution of marijuana in the trial court, the plaintiff was sentenced to pay a fine of $500.00 plus court costs or, in default, serve sixty days in jail, and was additionally given a sentence of two years at hard labor, which was suspended with plaintiff placed on probation for two years. At the time of the hearing before the Referee, plaintiffs conviction had been affirmed by the Second Circuit of Appeal, State v. Caldwell, 493 So.2d 749 (La.App. 2d Cir.1986), and writs were pending in the supreme court.
      On April 6, 1987, the supreme court reversed plaintiffs conviction, State v. Caldwell, 504 So.2d 853 (La.1987). The court found that the trial court committed reversible error in excluding the testimony of Alfacgo Braden, a fellow Levee Board employee. The testimony presented by proffer was intended to show "that Sweet’s actions were prompted by orders from the management of the Levee Board, and that Caldwell was entrapped." 504 So.2d at 855.
     
      
      . Plaintiff and defendant stipulated that plaintiff worked the 8:00 a.m. to 4:30 p.m. shift and that none of the conduct alleged in the termination letter occurred on or near the defendant's property or during plaintiff’s working hours. This stipulation did not cover the new dam area where the alleged drug sale took place on October 26, 1984; however, defendant offered no evidence that this area was owned, leased, used, or controlled by defendant as its working premises.
      I do note that Morris did testify that on November 30, 1984, while he was observing plaintiff, he surmised that plaintiff had the marijuana he later sold to Perry Sweet in his car in the parking lot on defendant's premises. Morris said that from the time plaintiff entered his car after leaving work until the time he met with Sweet, he made no other stops during which he could have acquired the marijuana.
     
      
      . The majority also cites Lombas v. Department of Police, 467 So.2d 1273 (La.App. 4th Cir.), writ denied, 470 So.2d 120 (La.1985), to support its reversal of the Commission's termination of plaintiff. We find Lombas distinguishable from the case at bar. In Lombas, the plaintiff was a police officer who was dismissed from the city police department based on his off-duty participation in an alleged illegal poker game. The Fourth Circuit reversed the Commission’s termination of Lombas, stating that Lombas’ presence at the card game while off-duty did not impair the “efficient operation” of the police department. The case at bar concerned conduct which, while it occurred after work, involved a supervisor selling marijuana to a co-employee on two occasions and selling to a third party in the presence of the co-employee on one occasion.
     