Opinion
No. 82-127.
August 31, 1982. Rehearing Granted October 11, 1982. On Rehearing December 22, 1982. Writ Denied February 23, 1983.
APPEAL FROM 15TH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE, STATE OF LOUISIANA, HONORABLE SUE FONTENOT, J.
Voorhies Labbe, Richard D. Chappuis, Jr., Lafayette, for defendant-appellant.
Michael Harson, Lafayette, for plaintiff-appellee.
Before CULPEPPER, FORET and STOKER, JJ.
Before CULPEPPER, DOMENGEAUX, FORET, STOKER and YELVERTON, JJ.
George A. Gwatney (plaintiff) brought this action seeking judicial review of a decision by the Lafayette Municipal Civil Service Board (the Board) upholding certain actions taken by the defendant, City of Lafayette, which resulted in the abolishment of plaintiff's position as defendant's Environmental Services Manager.
The trial court, after hearing plaintiff's appeal, rendered judgment in favor of plaintiff ordering defendant to reinstate plaintiff to his former position with back pay from the time of his discharge therefrom on December 31, 1980, and for all fringe benefits and other benefits appertaining to his employment with defendant, which he would have received during this same period of time.
Defendant appeals from the trial court's judgment and raises the following issues:
Defendant also raises an issue concerning the fact that the trial court's hearing on this matter was held without defendant's counsel being present. We find no merit to this issue. Defendant's counsel sought a continuance from the original date on which the hearing was to be held. The continuance was granted and he informed opposing counsel that he would be able to attend the hearing, if it were scheduled later that same week. However, he then left town and the trial court's law clerk was unable to reach him to inform him that the hearing had been rescheduled in accordance with his wishes. The trial court heard approximately six minutes of oral argument from plaintiff's counsel, together with testimony from its law clerk concerning her efforts to contact defendant's counsel to inform him of the date and time on which the hearing had been rescheduled, and that is all the hearing consisted of. Defendant's counsel was given a chance to submit a brief to the trial court before it rendered judgment. We find that defendant was in no way prejudiced by the absence of its counsel from the hearing.
Whether the trial court committed manifest error:
(1) in failing to sustain defendant's exception of lack of jurisdiction and alternative exceptions of no right and cause of action;
(2) in finding that the abolishment of plaintiff's position was improper because plaintiff was laid off for reasons not permitted under the Lafayette Civil Service Code (the Code); and
(3) in finding that defendant had failed to follow the proper procedure under the code for abolishing plaintiff's position.
FACTS
Plaintiff was first employed by defendant on December 6, 1976, in the position of Personnel Section Supervisor. He served in that position for two years, and was then promoted to Assistant Administrative Services Manager. In June of 1980, plaintiff was approached by certain of defendant's high-level employees and was asked to assume a new position that was being created to be known as the Environmental Services Manager. He was told that defendant was having problems operating the new N. Dugas Landfill and that one of his duties would be to oversee the operation of that facility. At the time, it was contemplated that plaintiff would perform these duties until defendant entered into a contract with a firm named Waste Management, Inc., for the operation of the landfill. Plaintiff would then have as one of his duties the responsibility of making sure that Waste Management, Inc. complied with the terms of its contract with defendant.
However, negotiations with Waste Management, Inc. fell through in early December of 1980, and defendant decided that it would attempt to operate the landfill on its own. A new position of Landfill Supervisor was then created, and the requirements for holding that position included five years experience with the operation of heavy equipment for excavating, etc. Plaintiff did not have the background to meet these requirements. He was informed around the middle of December of 1980, that the position of Environmental Services Manager was to be abolished effective December 31, 1980. Plaintiff was told that he could attempt to write up a job description to justify the creation of a new position, similar to the one he now held, except that his duties would no longer include the operation of the landfill. Plaintiff did this but was then told that such a position could not be justified as other employees could perform the remaining duties of the Environmental Services Manager. Plaintiff was offered another position with defendant, but would have taken a substantial cut in pay had he accepted it. Plaintiff refused to take the position offered and appealed the abolishment of his position to the Board.
An investigation was held by the Board, which ultimately decided that defendant had acted in good faith in abolishing plaintiff's position. Plaintiff then appealed from the decision of the Board to the trial court. His appeal was based on three grounds. First, that the Board had erred in finding that defendant had acted in good faith in abolishing his position. Second, that defendant had acted without proper cause, as set forth in the code, and by Act 288 of 1958, in abolishing his position. Third, that the abolishment of his position was not accomplished according to the procedure set forth in the code for undertaking such action. Defendant filed a declinatory exception of lack of jurisdiction, and peremptory exceptions of no right of action and no cause of action. There is no indication in the record that the trial court made any ruling on defendant's exceptions, but obviously it rejected them.
DEFENDANT'S EXCEPTIONS
In essence, defendant argues that under the provisions of the code, plaintiff has no right to appeal to the trial court from the decision of the Board upholding the action taken by it in abolishing his position. We find no merit to this argument. Defendant cites certain provisions of the code in its brief filed in this Court, but none of these support the position it has taken. To the contrary, these provisions clearly give plaintiff the right to appeal from the decision of the Board. Section 121(B) of Subpart B of the Lafayette Code (Act No. 288 of 1958, Sec. 21), provides, in pertinent part:
"(B) Any employee under Classified Service and any appointing authority shall have the right to appeal from any decision of the Board, or from any action taken by the Board under the provisions of the Act and which is prejudicial to said employee or appointing authority. This appeal shall lie direct to the court of original and unlimited jurisdiction in civil suits of the parish wherein the Board is domiciled . . . ."
ABOLISHMENT OF PLAINTIFF'S POSITION FOR UNJUSTIFIED AND IMPROPER CAUSES
Defendant contends that the trial court, in reviewing actions taken by the Board, is limited to making a determination of whether the decision made by the Board was or was not made for just cause under the code. It argues that the trial court ignored this limitation in finding that plaintiff had been denied due process as provided for in the code. We disagree.
The trial court noted the following regarding this issue in its written reasons for judgment:
"(1) Improper Abolishment
As Petitioner correctly points out, the pivoting (sic) issue of this allegation is the meaning of `abolishment', whether it is within the context of `abolishment of class' or `abolishment of position'. In either situation, there are formal requirements and procedures which must be honored by the hiring authority.
According to the Lafayette Civil Service Code, the Petitioner was subject to the rules and regulations of the Civil Service Code, as he held a position of `Classified Service'. (Section 106 of Code) In this particular instance, this Court feels there was clearly an `abolishment of a position', i.e., the position of Environmental Services Manager, as well as an `abolishment of class', because the classification had been eradicated via an assumption of such duties by the Landfill Supervisor. In essence, Mr. Gwatney has been the victim of a `lay-off' (Section 3, Rule 9 of the Civil Service Rules and Regulations), which is defined as `the removal of an employee, in accordance with the provisions of Act 288 of 1958, because of lack of work, failure of financial appropriation, or other causes which do not reflect on the employee'. This definition is very pertinent. Mr. Gwatney has clearly been laid off for a reason that does not satisfy the requisite conditions for a person being laid off. That is, he was laid off because he did not have five (5) years experience in operating a landfill. As this Court interprets the regulations, a dismissal such as this is a reflection on the employee's abilities. Therefore, this is not a permissible reason for a lay-off, particularly because the City knew or should have known of Gwatney's qualifications, or lack of qualifications, prior to his appointment. This Court finds that Mr. Gwatney was `laid off' in such a manner so as to deprive him of due process in accordance with the Civil Service Rules and Regulations."
There was evidence in the record to support the trial court's finding that plaintiff had been laid off by defendant. Defendant concedes this in its brief filed in this Court. The evidence also supports the trial court's finding that plaintiff was laid off for reasons which reflect on his abilities to perform his former job with defendant. As the trial court noted, the code and the act provide that lay-offs shall be for reasons which do not reflect on the employee. In effect, the decision of the Board upholding the action taken by defendant in laying off plaintiff supports an action taken in violation of the code and the act. For this reason, we find the Board's decision to have been made without just cause.
CLASS OR POSITION?
Defendant contends that the trial court committed manifest error in finding that it had failed to follow the provisions of the code regarding the abolishment of a class. It argues that the class in which plaintiff's position was placed was not abolished at the time his position was abolished. Thus, those provisions of the code requiring the Board to ratify actions taken by defendant to abolish a class are inapplicable here.
The trial court stated the following in its written reasons for judgment concerning this issue:
"(2) Improper Procedure
In any event, this Court feels that the City did not follow the proper procedure. This Court agrees with Petitioner, and believes that the case of Odom v. City of Minden, 300 So.2d 462, is squarely on point. As a classification was abolished, Mr. Gwatney was entitled to the procedures as enumerated in Section One of Rule Three of the Civil Service Rules and Regulations. That section states:
`Whenever, in the opinion of the director, there is necessity for establishing a new class or abolishing an existing class in the classification plan, he (director of personnel) may anticipate formal action of the Board by adding the new class or revising or abolishing an existing class. Such action shall be subject to ratification by the Board at its next regular meeting.'
The voluminous record reflects that this procedure simply was not followed."
The evidence shows that plaintiff's position was the only one in the class in which it was placed. The evidence also shows that the class was adopted by the Board for the specific purpose of allowing defendant to create plaintiff's position. However, that position has now been abolished, but defendant argues that the class still exists. Odom v. City of Minden, 300 So.2d 462 (La. 1974), involved a situation with facts and circumstances similar to this.
Odom concerned the establishment of the classification of "Fire Inspector" by the defendant thereto. Only one position was assigned to that classification, and plaintiff, in Odom, was appointed to fill that position. Some four years later, defendant's City Council voted to abolish the position held by plaintiff. However, it failed to follow the procedures prescribed by Article XIV, § 15.1 of the 1921 Constitution of this State for abolishing a classification. Odom noted that, ". . . the threshold issue that we must resolve is whether the City's action resulted in the abolition of a position or of a classification." Odom then reviewed the pertinent provisions of the 1921 Constitution and held that the City had abolished a classification rather than a position. As the City had failed to follow the provisions for abolishing a classification, Odom ordered it to reinstate plaintiff.
Article XIV, § 15.1 of the 1921 Constitution specifically made itself applicable ". . . to any municipality which operates a regularly paid fire and police department and which has a population of not less than thirteen thousand nor more than two hundred fifty thousand . . .".
Article XIV, § 15.1(3)(e) of the 1921 Constitution defined a class as follows:
"e. `Class' or `Class of position' means a definitely recognized kind of employment in the classified service, designated to embrace positions that are so nearly alike in the essential character of their duties, responsibilities, and consequent qualification requirements, that they can fairly and equitably be treated alike under like conditions for all personnel purposes."
Rule I of the "RULES AND REGULATIONS OF MUNICIPAL GOVERNMENT EMPLOYEES CIVIL SERVICE BOARD, CITY OF LAFAYETTE, LAFAYETTE, LOUISIANA" provides the definitions of terms used throughout that document. Section 10 of Rule I's definitions of "Class" or "Class of Position" are verbatim to the definitions found in the 1921 Constitution for those same terms. Further, the definition of the term "Position" is virtually identical in both the 1921 Constitution and the above mentioned rules and regulations.
Odom said, at page 464, that:
"From these definitions and a reading of the related paragraphs of Art. XIV, § 15.1, it can be seen that the Constitution clearly envisions classes of positions or jobs; each class can be composed of any number of positions, or of only one, as in the case before us. One position within a classification could be abolished without leaving that classification of duties unmanned regarding the public's protection; abolition of an entire classification, however, also abolishes an entire category of services to the public. Clearly, a class cannot exist if no one is employed in any job within it and there is no intention that anyone be employed therefor. To permit a class to exist under such circumstances would be tantamount to granting to the appointing authority the power to alter the classification plan, in direct contravention of the clear wording of La.Const. Art. XIv." (emphasis ours)
Odom, noting that defendant's City Council had decided that the duties of a full-time "Fire Inspector" were insufficient to justify the continued expense of maintaining an employee in that position, found that the substance of the City Council's action in discharging plaintiff was to eliminate that classification entirely.
In the case sub judice, there was testimony to the effect that plaintiff's position was being abolished because there was no longer enough work available to justify the continued existence of the position of Environmental Services Manager. There was certainly no thought being given to the idea of hiring anyone else to fill that position. It is our opinion that, as in Odom, the substance of the action taken here by defendant was that a classification, rather than a position, was being abolished. Thus, defendant had to follow the provisions of the code for the abolishment of a class, which the evidence shows that it failed to do. This provides another basis for our finding that the Board's decision upholding the action taken by defendant was made without just cause.
For the above and foregoing reasons, the judgment of the trial court is affirmed.
All costs of this appeal are assessed against defendant-appellant.
AFFIRMED.
CULPEPPER, J., concurs, being of the view that the majority opinion by the Supreme Court in Odom is controlling in the present case, although disagreeing with Odom.
STOKER, J., concurs and assigns written reasons.
ON REHEARING
The City of Lafayette filed an application for what amounted to a limited rehearing. In its application the defendant City stated that the application was in the alternative "assuming that the decision of the Louisiana Supreme Court in Odom v. City of Minden, 300 So.2d 462 (La. 1974) is applicable as held by this Honorable Court in its decision herein." We granted a limited rehearing. After the granting of the rehearing, Judges Culpepper and Stoker concluded that a partial reversal of the trial court's judgment was in order. Inasmuch as Judge Foret disagreed, Judge Domengeaux and Judge Yelverton were added to the panel to comply with Article 5, Section 8(B) of the Louisiana Constitution of 1974.
The application for rehearing asked that our original opinion affirming the trial court judgment be reversed insofar as it ordered that Gwatney be reinstated. Defendant asked further that the case be remanded for a determination of the benefits owed Gwatney from the date of his discharge through the date that the abolition of his former position was ratified by the Board subject to a credit to the City of Lafayette for any sums paid to Gwatney through unemployment benefits or salary income.
As set forth in our original opinion in this case the trial court grounded its decision and judgment on two separate grounds: (1) that plaintiff's discharge amounted to a "lay-off" which reflected on plaintiff's ability to perform his job in his former position of Environmental Services Manager, a thing the trial court held the City of Lafayette could not do, and (2) the position held by plaintiff could not be abolished (as he was the sole person who held the position) without ratifying action of the civil service board for the City of Lafayette.
Our original opinion on appeal affirmed the trial court on both grounds. Two members of the panel concurred on the basis of the second reason stated above, but with reluctance, and only because the plurality decision of the Louisiana Supreme Court in Odom v. City of Minden, supra, appeared to dictate this result. In order to better understand our disposition of this case on rehearing it is necessary for the position of the two concurring members of this panel, Judges Culpepper and Stoker, to be more fully stated. While entertaining the utmost respect for the views of the able trial court and our esteemed brother who authored the opinion on original hearing herein, the two concurring judges do not agree with the first ground stated by the trial court. In short, if prior to the time this case came to trial the civil service board had ratified the abolition of the position of Environmental Services Manager which resulted in plaintiff's loss of employment with the City, the concurring members of this panel would have voted to reverse the trial court. Had such been the case the requirements of Odom would have been satisfied.
The net effect of the situation stated above is that all the judges sitting on the panel which heard this case on original hearings agreed as to the results, the affirmance of the trial court. However, as stated there was majority agreement only on the basis of Odom. In the City's application for rehearing the City suggested that subsequent to the signing of the trial court's judgment, the civil service board did act to ratify the abolition of plaintiff's position of Environmental Services Manager. In fact, the action was mentioned by the City in its brief on original hearing in connection with an alternative contention. However, as the trial record was made up prior to this alleged action of the civil service board, such action was not a part of the record. Such action, if it took place, is still not a part of the record. Although counsel for the City has attached to his brief on rehearing a copy of what purports to be the minutes of the civil service board for January 20, 1982, setting forth a ratification effective as of that date, we cannot take cognizance of it. The case is not in the posture which would require that we go ahead and decide the issues raised in the application for rehearing under the pronouncement in Gonzales v. Xerox Corporation, 320 So.2d 163 (La. 1975).
All three members of the panel voted to grant a limited rehearing. Two members of the panel, believed that the case should be remanded for further evidentiary proceedings in order that final disposition of the controversy may be made. It will be noted that the trial court's ruling and judgment was made conditional upon the happening of an event which may have transpired since the granting of the judgment. The granting of the reinstatement with back pay and other benefits was made conditional "until such time he (plaintiff) may be properly and formally terminated from his employment." The pertinent portions of the trial court's judgment are set forth in footnote one below.
The following are the pertinent dispositive portions of the trial court's judgment which was signed on January 18, 1982. "IT IS HEREBY ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Plaintiff, GEORGE A. GWATNEY, and against the Defendant, CITY OF LAFAYETTE, LOUISIANA, granting to said Plaintiff a reinstatement of his employment with the CITY OF LAFAYETTE, LOUISIANA, including back pay from the time of his discharge on December 31, 1980 until such time as he may be properly and formally terminated from his employment with the CITY OF LAFAYETTE, LOUISIANA. "IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the said Petitioner be compensated for all fringe benefits and other benefits appertaining to his employment with the CITY OF LAFAYETTE, LOUISIANA, from the time of his discharge until such time as he may be properly and formally relieved of his said duties with the CITY OF LAFAYETTE, LOUISIANA."
Since the granting of the limited rehearing and the filing with us for the briefs on rehearing, the author of the opinion on original hearing has concluded that we should adhere to our original judgment and let the affirmance stand. The other two members of the panel disagreed and concluded that the case should be remanded. The two judges added to the panel agree or concur in these conclusions.
While the question of termination to be considered on remand might conceivably be brought up in the trial court — on a rule to show cause, for example — for the purposes of convenience, justice to the parties and judicial economy, we deem a remand appropriate under the circumstances. See DeFelice v. Garon, 395 So.2d 658 (La. 1981) and Heymann v. Lewis, 414 So.2d 787 (La.App. 3rd Cir. 1979).
ISSUES ON REHEARING
The rehearing was granted "limited to the question of whether we should remand this case to the trial court for a determination of the benefits owed George Gwatney from the date of his discharge to the date of ratification by the Board of the abolishment of the classification of Environmental Services Manager and if so whether we should reverse that portion of the judgment previously rendered herein reinstating George Gwatney to his former position."
On rehearing we conclude that the remand should be ordered and that the trial court should decide on remand (through an evidentiary hearing) the question of whether the alleged action of the civil service commission met the conditions laid down in the trial court judgment.
The commission purportedly took the following action at its meeting on January 20, 1982:
"1. It was moved by Brooke Hamilton and seconded by Bill Peyton to ratify the abolishment of the class of Environmental Services Manager as executed by the Director of Personnel, but to change the effective date to January 20, 1982. Said class abolishment was made to comply with Judge Fontenot's procedural requirement in her court ruling where a 1-position class was abolished as in George Gwatney's case."
On remand the City will have the burden of proof to establish that the commission took this action. It will be up to the trial court to determine factually if the action was taken and the effect to be given it. It will be noted that the commission made its ratification effective on the date of the motion of ratification, January 20, 1982. Plaintiff was discharged December 31, 1980.
In the brief filed on rehearing on behalf of plaintiff, his counsel takes the position that there was nothing for the civil service commission to ratify because plaintiff was never validly discharged initially. Plaintiff urges his original position that he was illegally discharged because he was released for reasons that reflected on his ability to perform his former job, that of Environmental Services Manager. We now reject plaintiff's reasoning despite the fact that it was adopted by the able trial court and our esteemed colleague of this panel. The judges who concurred on original hearing had no reason to comment on that question, considering the posture of the case as it then stood, and the fact that they filed separate concurrences based solely on Odom v. City of Minden, supra. While we are bound to follow the Odom case, inasmuch as it is a decision of the Supreme Court, our remand is consistent with that decision.
The fact that the new City position created, Landfill Supervisor, required five years experience, which plaintiff did not have, has absolutely nothing to do with the abolition of the former position of Environmental Services Manager. The only significant thing about the two positions is that establishment of the new position rendered the former position unnecessary. The fact that plaintiff could not qualify for the new position has nothing whatsoever to do with the validity of the abolition of the position held by him. With respect to the new position plaintiff was an aspirant who was not qualified. This fact did not in any way reflect on plaintiff's ability to perform his job as Environmental Services Manager. The abolition of his former position which had become superfluous in the City's organizational and management structure did not cast any reflection on plaintiff's ability or qualifications to the abolished job. The two things should not be confused. They are separate actions and not part and parcel of one action.
Even if the two actions of the City could be said to have had some connexity of the nature urged by plaintiff, we doubt that establishing experience standards for the new position could be said to reflect on plaintiff's ability to perform his former job.
For the foregoing reasons the trial court on remand is to consider only the fact and effect of the board action of January 20, 1982. In this regard substantial questions may emerge as to whether such action constituted ratification as contemplated by the Lafayette civil service regulations. On such matters we make no comment other than to specify that the trial court is free to consider all questions relating to the fact, effect and validity of the alleged ratification.
The principal matter which will be before the trial court on remand will be the question of termination. If this issue is determined in the City's favor, the trial court may definitively determine exactly the emoluments and monetary benefits to which plaintiff is entitled. The City of Lafayette has urged that on remand the trial court's fixing of the amount of back pay and benefits should be "less all monies paid to or received by him in the form of unemployment benefits or any other salaries and wages earned by him in private employment during the period of time beginning with the date of his discharge until the date of the ratification by the Board." This question is premature. For any such credits as the City may be entitled, the trial court may receive evidence pertinent and legally relevant to the issue and grant any relief authorized in law.
We come now to the second matter for which we granted a limited rehearing. This is the question of whether we should reverse that portion of the trial court's judgment which ordered reinstatement (granted were the words of the trial court's judgment). It is possible that the trial court meant to provide for reinstatement only from the date of its judgment but with back pay and other benefits to be retroactive. In Odom v. City of Minden, supra, the Supreme Court ordered a remand to the trial court "with instructions that Odom be reinstated to his former position . . . with full benefits retroactive to the date of his discharge, including but not limited to full pay and seniority rights." As we view the Odom case, it did not order a "retroactive reinstatement." Perhaps such was immaterial inasmuch as Odom was granted all his significant rights.
Inasmuch as we remand this case for a determination of the question of termination in fact and any related questions, we now reverse that portion of the trial court's judgment which provided for reinstatement of the plaintiff. If the trial court should find on remand that George A. Gwatney was properly terminated from employment with the City on January 20, 1982, then the question of reinstatement will be moot. The trial court's judgment on remand can protect Gwatney in a similar manner as was ordered done in Odom, that of awarding back pay and all appropriate benefits retroactive to the date of his discharge by the City without any necessity of dealing with the question of reinstatement.
If, on the other hand, the trial court should find that the alleged termination did not occur, the trial court may again order reinstatement. Under such circumstances there would be no necessity for making the reinstatement retroactive because the Odom procedure could be followed. Plaintiff's rights could be fully protected by prospective reinstatement and a judgment for back pay and benefits retroactive to his termination by the City.
For the foregoing reasons we reverse that portion of our original judgment which affirmed the trial court's judgment ordering reinstatement of the plaintiff to the position Environmental Services Manager formerly held by him. In all other respects we reaffirm the judgment of the trial court but solely on the basis of Odom v. City of Minden, supra. We now order that this case be remanded to the trial court for an evidentiary hearing and further proceedings consistent herewith.
ON REHEARING, REVERSED IN PART, REAFFIRMED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.
DOMENGEAUX, J., concurs and assigns written reasons.
FORET, J., dissents and will assign written reasons.
I concur in the majority opinion solely because the facts are virtually the same as those of Odom v. City of Minden, 300 So.2d 462 (La. 1974) and therefore the pronouncement of the majority decision of the Louisiana Supreme Court in that case must be adhered to. Otherwise, I should think that the position of the defendant is the correct one.
The exigencies of this case, and particularly the alleged subsequent action of the Civil Service Commission referred to in the majority opinion on rehearing, leaves us no clear alternative but to remand. Otherwise, plaintiff's situation would be left hanging in an ambiguous state. The instructions to the trial court on remand are specific and clear and designed to fully protect the rights of all parties under the circumstances. To allow our original opinion to stand would obviously result in another law suit or suits meant to accomplish what our remand is designed to do now without undue delay and with judicial economy.
I respectfully, but vigorously dissent from the decision of the majority in this rehearing. I adhere to the views expressed in our original opinion.
It seems to me that the majority opinion on rehearing is in contradiction of the Louisiana Supreme Court's holding in the case of Odom v. City of Minden, 300 So.2d 462 (La. 1974).