Adikema v. Dept. of Public Saf. and Correc.

971 So. 2d 1071, 2007 WL 2772890
CourtLouisiana Court of Appeal
DecidedSeptember 14, 2007
Docket2006 CA 1854
StatusPublished

This text of 971 So. 2d 1071 (Adikema v. Dept. of Public Saf. and Correc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adikema v. Dept. of Public Saf. and Correc., 971 So. 2d 1071, 2007 WL 2772890 (La. Ct. App. 2007).

Opinion

971 So.2d 1071 (2007)

Friday C. ADIKEMA
v.
DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS—OFFICE OF YOUTH DEVELOPMENT—Jetson Correctional for Youth.

No. 2006 CA 1854.

Court of Appeal of Louisiana, First Circuit.

September 14, 2007.

Mark E. Falcon, Daniel L. Avant, Baton Rouge, for Plaintiff-Appellant Friday C. Adikema.

Cynthia G. Eyre, Baton Rouge, for Defendants-Appellees Dept. of Public Safety & Corrections, Office of Youth Development and Jetson Center for Youth.

Robert R. Boland, Jr., Baton Rouge, for Defendant-Appellee Anne Soileau, Director, Dept. of State Civil Service.

*1073 Before: KUHN, GAIDRY, DOWNING, MCDONALD, WELCH, JJ.

WELCH, J.

Appellant, Friday C. Adikema, appeals the decision of the Civil Service Commission (Commission) upholding the designation of his resignation as one to avoid termination. We affirm.

BACKGROUND

Mr. Adikema was employed by the Department of Public Safety and Corrections (DPSC), Office of Youth Development, at Jetson Correctional Center for Youth (JCCY). He worked as an Administrative Director 3 and served with permanent status.

On January 30, 2006, Mr. Adikema was placed on suspension pending investigation of theft of state property. On February 2, 2006, DPSC notified Mr. Adikema to report to work. After Mr. Adikema reported to work, DPSC officials had him arrested, handcuffed and taken to jail, where he was charged with theft.

At the time of the arrest, JCCY Director Donna Bourque handed Mr. Adikema a Violation Report (VR-1), a document utilized by DPSC to initiate the disciplinary process, charging Mr. Adikema with aggravated malfeasance in violation of DPSC Rule 13(c). The form described in detail various building material items purchased by Mr. Adikema on his JCCY credit card for his personal use, as well as multiple charges on that card for concrete delivered to his personal residence. The VR-1 was not signed by Mr. Adikema or his employer, and it does not list a recommended disciplinary action. Mrs. Bourque also gave Mr. Adikema a letter notifying him that his initial review/Loudermill Notice[1] was scheduled for February 8, 2006.

The day before his scheduled Loudermill hearing, on February 7, 2006, Mr. Adikema sent DPSC a letter in which he requested that DSPC accept his "voluntary resignation" effective "at the close of business this day." DPSC received the resignation, and on February 14, 2006, advised Mr. Adikema that his separation had been designated as a "Resign to Avoid Dismissal."

On March 9, 2006, Mr. Adikema appealed to the Civil Service Commission, challenging the propriety of the designation of his resignation. Pursuant to an agreement of the parties, the matter was submitted on briefs and, on June 16, 2006, a Civil Service referee filed a decision upholding the designation.

Mr. Adikema did not file an application for review, opting instead to allow the referee's decision to become the final decision of the Commission, and appealed to this court. See La. Const. Art. X, § 12(A).

DISCUSSION

The final decision of the Commission is subject to review on any question of law or fact. La. Const. Art. 10, § 12; Addison v. L.S.U. Medical Center in Shreveport, 551 So.2d 750, 754 (La.App. 1st Cir.1989). The standard of appellate review for findings of fact made by referees of the Commission is the same as the review of district court decisions, that is, the Commission referee's factual findings should not be disturbed unless they are clearly wrong or the referee committed manifest error. Dunlap v. Louisiana State University Health Sciences Ctr., *1074 XXXX-XXXX, p. 4 (La.App. 1st Cir.6/9/06), 938 So.2d 109, 112. On appeal, with respect to the Commission's decisions as to jurisdiction, procedure, and interpretation of laws and regulations, the court performs its traditional plenary functions and applies the error of law standard. James v. LSU Health Sciences Ctr. Med. Ctr. of Louisiana at New Orleans, XXXX-XXXX, p. 3 (La.App. 1st Cir.11/8/02), 834 So.2d 470, 472, writ denied, XXXX-XXXX (La.4/21/03), 841 So.2d 792.

In this appeal, Mr. Adikema contends that DPSC improperly designated his resignation as a resignation to avoid dismissal in violation of Civil Service Rule 12.11(f). The rule, entitled "Resignations," sets forth in relevant part:

(f) When, after receiving notice that his dismissal has been proposed, an employee resigns to avoid dismissal, the Standard Form 1 reporting the resignation shall so indicate and a copy thereof shall be furnished to the employee.

It is undisputed that DPSC did not give Mr. Adikema actual notice, either in writing or orally, that it had made a decision to terminate him before Mr. Adikema submitted his resignation. Mr. Adikema maintains that in order for Rule 12.11(f) to apply, the appointing authority must actually convey to the employee, in writing or orally, that a termination has been proposed. He submits that until he received such actual notice from his employer, he was free to resign and such resignation could not be construed as a resignation to avoid dismissal. Under the limited circumstances of this case, we disagree.

It is well settled that Civil Service rules have the effect of law. La. Const. art. X, § 10(A)(4); Bannister v. Dep't of Streets, 95-0404, p. 5 (La.1/16/96), 666 So.2d 641, 645. Civil Service rules must be construed according to the rules of interpretation applicable to legislation. King v. LSU Health Sciences Center, XXXX-XXXX, pp. 5-6 (La.App. 1st Cir.4/2/04), 878 So.2d 544, 547. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written. La. Civ.Code art. 9. The following rules for statutory construction have developed in the jurisprudence: (1) it is presumed that every provision of a law was intended to serve some useful purpose; (2) it is not presumed that the lawmaker intended for any part of the law to be meaningless; (3) the lawmaker is presumed to have enacted the law with full knowledge of all other laws pertaining to the same subject matter; (4) it is the duty of the courts to interpret a provision of law in a manner which harmonizes and reconciles it with other provisions pertaining to the same subject matter; and (5) when a law is susceptible to two or more interpretations, that which affords a reasonable and practical effect to the entire act is preferred to one that renders part of the act nugatory. Ascension School Employees Credit Union v. Provost, Salter, Harper & Alford, L.L.C., XXXX-XXXX, p. 10 (La.App. 1st Cir.6/10/05), 916 So.2d 252, 258.

Although Rule 12.11(f) requires that an employee have notice that his dismissal has been proposed prior to his resignation to avoid termination, it is silent as to what type of notice is required. As written, Rule 12.11(f) does not require the appointing authority to notify the employee, either in writing or orally, that his dismissal has been proposed prior to the resignation. Furthermore, Rule 12.11(f) is obviously designed to prevent an employee, who knows that his dismissal is imminent, from attempting to resign before the formal disciplinary process can be initiated in order to avoid the consequences of a *1075 resignation to avoid dismissal.[2]

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Related

Cleveland Board of Education v. Loudermill
470 U.S. 532 (Supreme Court, 1985)
Bannister v. Dept. of Streets
666 So. 2d 641 (Supreme Court of Louisiana, 1996)
Ascension School Emp. Credit Union v. Psha
916 So. 2d 252 (Louisiana Court of Appeal, 2005)
Dunlap v. LSU HEALTH SCIENCES CENTER
938 So. 2d 109 (Louisiana Court of Appeal, 2006)
Afscme, Council 17 v. State, Dept. of Health & Hospital
789 So. 2d 1263 (Supreme Court of Louisiana, 2001)
James v. LSU HEALTH SCIENCES CENTER
834 So. 2d 470 (Louisiana Court of Appeal, 2002)
King v. LSU Health Sciences Center
878 So. 2d 544 (Louisiana Court of Appeal, 2004)
Addison v. L.S.U. Medical Center in Shreveport
551 So. 2d 750 (Louisiana Court of Appeal, 1989)

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