Opinion
No. 2009 CW 0030R.
January 25, 2011.
ON SUPERVISORY WRIT FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF ST. TAMMANY STATE OF LOUSIANA DOCKET NUMBER 2008-12065, DIVISION "G" THE HONORABLE LARRY J. GREEN, JUDGE.
Raymond C. Burkart, III, Amanda A. Trosclair, Covington, Louisiana, Attorneys for Plaintiff/Relator Kalford K. Miazza.
M. Nan Alessandra, Mary Jo L. Roberts, New Orleans, Louisiana, Attorneys for Defendant/Respondent City of Mandeville, Department of Police.
BEFORE: PARRO, KUHN, AND McDONALD, JJ.
A permanent, classified civil service employee, Sgt. Kalford K. Miazza, appealed the dismissal of his appeal by the City of Mandeville's Municipal Police Employees' Civil Service Board, which was affirmed by a judgment of the Twenty-Second Judicial District Court. We review this matter under our supervisory jurisdiction after remand from the supreme court.
On original consideration, a majority of a panel of this court found that La.R.S. 33:2561(E) did not confer appellate jurisdiction on the 22nd JDC. The issue addressed in a per curiam opinion of the supreme court was whether an appeal to the district court was available to Sgt. Miazza. The supreme court found that the statute should be interpreted to provide for the right of appeal to the district court, in spite of the fact that the statute failed to specifically designate the district court in which the appeal should be filed. A court of appeal has supervisory jurisdiction over cases which arise within its circuit. La.Const. of 1974, art. V, § 10(A).
Miazza v. City of Mandeville, 2009 CA 0030 (La. App. 1 Cir. 1/26/10) (unpublished); writ granted, 2010-0304 (La. 5/21/10), 34 So.3d 849 (per curiam).
Finding that the district court had subject matter jurisdiction to consider the appeal, the supreme court concluded, that the court of appeal lacked appellate jurisdiction, citing Caire v. Stassi, 379 So.2d 1056 (La. 1980). The Caire opinion held that a legislative grant of appellate jurisdiction to a district court divests the appellate court of appellate jurisdiction. However, the decision was made based on former La.C.C.P. art. 4833, which specifically provided for appeals in the district court and in the court of appeal, depending on the amount in controversy. More importantly, the judgments appealed were actions originating in the City Court of New Orleans.
Miazza v. City of Mandeville, 2010-0304 (La. 5/21/10), 34 So.3rd 849 (per curiam).
Generally, administrative tribunals are in the executive branch of government. They exercise quasi-judicial functions, but they are not Article V courts, i.e., they are not in the judicial branch of government. See Wooley v. State Farm Fire and Casualty Insurance Co., 2004-0882 (La. 1/19/05), 893 So.2d 746. There are constitutional issues that must be considered when making a decision as to the availability of judicial review. "The right of judicial review in administrative law has been said to be 'an important safeguard of due process and the availability of judicial review may be critical in determining whether a party has been denied due process.'" Id.
Further, generally when the legislature intends to limit judicial review of an administrative tribunal decision to one court, it specifically provides that the appeal is in the appellate court. If the sole appeal of right of an administrative decision is in the district court, there is no body of interpretive law, because district court decisions are not published. Frequently, district courts do not even provide the reasons for judgment.
It is nevertheless true that some decisions by administrative bodies are not reviewable by the judicial branch of government. In these cases, the district court lacks subject matter jurisdiction, a fatal impediment to invoking the judicial process. When a district court lacks subject matter jurisdiction, there is no appellate subject matter jurisdiction. However, because all matters arising within the circuit of a court of appeal's jurisdiction are subject to supervisory review, all courts of appeal may exercise supervisory jurisdiction over all cases heard in district court. Sgt. Miazza's appeal alleges error in the district court concerning a matter over which we have only supervisory jurisdiction, because the district court did have subject matter jurisdiction. Therefore, pursuant to the supreme court's instructions, we convert Sgt. Miazza's appeal to an application for supervisory writ.
Sgt. Kalford K. Miazza is employed by the City of Mandeville, Parish of St. Tammany, as a police sergeant with the Mandeville Police Department. It is a classified civil service position, and with seventeen years of experience, Sgt. Miazza's classification is permanent. In May 2007, the appointing authority published a test announcement for the position of Captain, with the test scheduled for October. The job description for the position was changed twice, once after the administration of the test. On November 5, 2007, the personnel director published the test scores of the four officers who had taken the test; the Municipal Police Employees' Civil Service Board (hereinafter Board) did not certify the scores. Three persons were referred for the promotion, including Sgt. Miazza. On November 7, 2007, the police chief appointed Ronald Ruple to the position of Captain. Captain Ruple was on the list of eligible officers and had scored 67% out of 100% on the test.
Sgt. Miazza appealed the promotional decision to the Board. The City of Mandeville moved to summarily dismiss the appeal. The Board heard Sgt. Miazza's appeal and the City's motion on February 27, 2008, granted the City's motion, and dismissed Sgt. Miazza's appeal. A decision confirming the oral ruling was signed on March 12, 2008, and timely appealed to the district court.
Sgt. Miazza and the City submitted pre-hearing briefs to the district court. Oral argument was heard on August 11, 2008, and the matter was taken under advisement. An eight-page judgment, incorporating reasons for judgment, was signed on September 22, 2008. Sgt. Miazza timely filed this application for appeal, alleging three errors by the district court: (1) the district court committed legal error by affirming the Board's legal error in finding the Board had no subject matter jurisdiction over Sgt. Miazza's appeal; (2) the district court erred by affirming the Board's finding that Sgt. Miazza's appeal had prescribed; and (3) the district court erred by affirming the Board's finding that Sgt. Miazza's appeal failed to state a cause of action.
The district court found as follows:
Act [164] of 1984 (the "Act") is the enabling legislation for the Mandeville Police Department's Civil Service Board. The rule making authority of the Board is set forth in Section 3 and its duties set forth in Section 4. As regards the facts of this Appeal, the duties of the Board are: "To hear and decide upon dismissals, suspensions, demotions and other disciplinary matters as may be provided by rule . . ." Neither Mr. Miazza nor Mr. Ruple were dismissed, suspended, demoted or suffered any other disciplinary action. Promotions are not listed as one of the duties or authorities of the Board.
Mr. Miazza and the City also disagree on which portions of Title 33 control in this matter, plaintiff relying on Part II of Chapter 5, RS 33:2471 et seq, and the City citing Part III of that Chapter, RS 33:2531 et seq. The 2000 census for the City of Mandeville indicates fewer than 13,000 residents; therefore, Part III has application. The duties of the Board as set forth in RS 33:2537, in pertinent part, are to:
For the most part, for the purposes of this Appeal, the sections covering the duties of the boards provided for in 33:2477 and 33: 2537 are the same.
1. Represent the public interest in matters of personnel administration . . .
3. Advise and assist the employees in the classified service with reference to the maintenance, improvement and administration of personnel matters related to any individual or group of employees.
4. Make . . . upon the written petition of any citizen for just cause or upon its own motion, any investigation concerning the administration of personnel or the compliance with the provisions of this Part, . . . and take any other action which it determines to be desirable or necessary in the public interest or to carry out effectively the provisions and purposes of this Part[.]
5. Conduct investigations and pass upon complaints by or against any officer or employee in the classified service for the purpose of demotion, reduction in position or abolition thereof, suspension or dismissal of the officer or employee, in accordance [with] the provisions of this Part. This very broad statutory grant of authority to the Board, however, must be read in conjunction with the authority conferred upon the Board by the Act, and by the actual authority assumed by the Board under the provisions of the Manual.
The Mandeville Police Employees' Civil Service Manual uses similar though not identical language in Subsection 5. The Manual's language is as follows: 5. Conduct investigations and act upon complaints by or against any officer or employee in the classified service for the purpose of demotion, reduction in position or abolition thereof, suspension or dismissal of the officer or employee, or such other purposes as may be determined by the Board in accordance [with] the provisions of this ordinance.
Section 6.08 of the Manual covers promotional appointments and states "Promotions within the commissioned classification area based on competitive examinations." However, the type of examination is not specified, nor does the Manual provide that a written exam and only that written exam will be the criterion for promotional consideration. This section further goes on to state that the Chief of Police shall make original appointments or, in the case of commissioned officers, promotional appointments from the list of eligible persons certified by the Personnel Director. Nowhere in the Manual does it provide for a minimum passing grade, nor does it provide the minimum qualifications for each position. Neither the qualifications in the various postings, nor the no pass — no fail scheme were ever challenged by Plaintiff within the time periods set forth in RS 33:2561 or the Manual.
[Plaintiff] urges that his amended appeal relates back to his original pro se appeal. However, at the time the original request for hearing was filed, only those events within the appeal time, 30 days, were still viable and had not yet prescribed. That is, the alleged deficiencies in the promotional process, which were reviewable, if any, were those which occurred in the thirty days prior to bringing his Appeal to the board on December 3, 2007. Personnel Manual Part II, Section 1.02. The only action of the City or the Board taken in the 30 days prior to plaintiff's appeal was the promotion of Mr. Ruple.
Plaintiff argues that he could not have appealed anything until after the promotion and therefore, prescription had not yet run on the deficiencies in the promotional process until the promotion itself occurred. The Court disagrees. The Manual clearly provides that its purpose is to "Administer all personnel action in accordance with acceptable merit principles." (Rule 1.0, Section 1.01 D) Its Scope of Authority includes "Policies and methods for holding competitive tests to determine the merit and fitness of candidates for original appointment and promotion. The establishment and maintenance of lists of persons eligible for appointment by reason of successful participation in competitive tests and establishment of procedures for the certification of persons from eligible lists for filling vacancies." (Rule 2.0 Section 2.03, C 3 and 4) As to scoring exams, the Manual provides "The Municipal Police Employees' Civil Service Board shall develop or select reliable and valid examination procedures for competitive classes . . . and Scores or ratings resulting from the examination process shall be prepared at the direction of the Personnel Director." (Rule 5.0, Section 5.02 A and E) Had plaintiff timely challenged the job qualifications or the grading system within the appeals time period, he may have had a cause of action and the Board may have had jurisdiction to hear his appeal of those action[s]. However, any complained of action occurring more than 30 calendar day[s] before bringing of an appeal is time barred by virtue of the Rules of Appeals Procedure set forth in the Manual. The Board's finding that plaintiff's appeal was not timely filed was correct.
We agree with the findings of the district court. We considered Miazza's argument that the language in Section 5 of the Board's Rules, "or such other purposes as may be determined by the Board in accordance [with] the provisions of this ordinance," extends its authority to hear this matter regarding promotions. However, we do not agree. Louisiana Legislative Act 164 of 1984 states what authority and responsibilities the Board has with regard to promotions, and does not include hearing complaints concerning promotional decisions made by the Chief of Police. We do not address the issue of whether it is legally permissible for a Board to extend its statutory authority by rule, as suggested by Miazza.
We find that the district court's decision on the issue of subject matter jurisdiction of the Board is without error. Also, the court correctly concluded that the procedural issues concerning the promotion of Captain Ruple, which were sought to be addressed by Sgt. Miazza, had prescribed. Because we find no error in the district court's finding that the Board had no subject matter jurisdiction over the promotional appointment, and any basis for an appeal to the Board had prescribed, we do not consider Miazza's challenge of the district court's finding that there was no cause of action. The writ is denied. Costs are assessed to Kalford K. Miazza.
WRIT DENIED.