City of Kenner Fire Department v. Municipal Fire & Police Civil Service Board

694 So. 2d 460, 96 La.App. 5 Cir. 747, 1997 La. App. LEXIS 984, 1997 WL 163627
CourtLouisiana Court of Appeal
DecidedApril 9, 1997
DocketNo. 96-CA-747
StatusPublished
Cited by1 cases

This text of 694 So. 2d 460 (City of Kenner Fire Department v. Municipal Fire & Police Civil Service Board) 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
City of Kenner Fire Department v. Municipal Fire & Police Civil Service Board, 694 So. 2d 460, 96 La.App. 5 Cir. 747, 1997 La. App. LEXIS 984, 1997 WL 163627 (La. Ct. App. 1997).

Opinion

laCANNELLA, Judge.

Defendant, the Municipal Fire and Police Civil Service Board (the Board), appeals from a judgment rendered in favor of plaintiffs, the City of Kenner Fire Department and the City of Kenner (the Fire Department), in which the trial court found that the Board did not have jurisdiction over a contro[461]*461versy involving a fire fighter’s pay when he was assigned the task of driving the Fire Department’s emergency vehicle (R389). For the reasons which follow, we reverse the trial court.

This appeal arises out of the complaint of a fire fighter, Robert Killian, (Killian),that he was required to drive R389 on several occasions, but was not compensated at the rate of a “fire driver” as required by law. On July 27,1995, he filed a request for a hearing with the Board to investigate whether he was denied compensation that he was due. On October 2, 1995, the Board held a public hearing on Killian’s complaint and found that 1) Killian had been assigned to drive R389 on May 8, 20 and 29 and on June 16, 1995, 2) Killian held the permanent position of fire fighter, but was assigned to the position of fire driver onjjthose dates, and 3) he did not receive fire driver pay for those days of work. The chief of the Fire Department issued a policy change effective July 1, 1995 that all fire fighters assigned as acting fire drivers of R389 would receive fire driver pay. La R.S. 33:2496(b) provides that any person temporarily assigned to a different position than the one he holds shall receive the rate of pay for that position. Thus, the Board concluded that the appointing authority did not act in good faith in withholding fire driver pay from the fire fighters who were working as fire drivers in driving R389 between May and June of 1995. The Board ordered the Fire Department to pay to those drivers the difference between fire fighter and fire driver pay, retroactively and with interest.

On October 17, 1995, the Fire Department filed a petition for judicial review of the Board’s decision. The Fire Department challenged the Board’s jurisdiction to conduct an investigation and the Board’s determination that all fire fighters driving the R389 should receive fire driver pay together with interest on the retroactive pay. After briefs were submitted, the trial court rendered judgment dated July 8, 1996 vacating the decision by the Board. It is from this judgment that the appeal has been taken.

On appeal the Board argues that the trial court erred in finding that the Board did not have jurisdiction to investigate the matter and in vacating the award of retroactive pay plus interest thereon to the fire fighters that were assigned the job of fire driver of R389 during the months of May and June, 1995.

The pertinent constitutional provisions necessary for a resolution of this case are contained in Article X of the Louisiana Constitution of 1974. Article X, section 10(A)(1) grants broad rule-making and investigative powers for the administration and regulation of the classified service to the Civil Service Commission. Section 10(A)(1) of Article X provides:

Each commission is vested with broad and general rulemaking and subpoena powers for the administration and regulation of the classified service, including the 14power to adopt rules for regulating employment, promotion, demotion, suspension, reduction in pay, removal, certification, qualifications, political activities, employment conditions, compensation and disbursements to employees, and other personnel matters and transactions; to adopt a uniform pay and classification plan; to require an appointing authority to institute an employee training and safety program; and generally to accomplish the objectives and purposes of the merit system of civil service as herein established. It may make recommendations with respect to employee training and safety. (Emphasis added.)

Section 10(B) empowers the commission with investigatory powers and provides:

Each commission may investigate violations of this Part and the rules, statutes, or ordinances adopted pursuant hereto.

Article 10, Section 16 of the 1974 Constitution specifically provides for a civil service system to be applicable to policemen and firemen. It provides:

A system of classified fire and police civil service is created and established. It shall apply to all municipalities having a population exceeding thirteen thousand and operating a regularly paid fire and municipal police department and to all par[462]*462ishes and fire protection districts operating a regularly paid fire department.1

It is further provided in the Constitution that the system of appointments and promotions in the municipal fire and police civil service be made based on “merit, efficiency, fitness, and length of service-” La. Const. Art. 10, § 17.

Within the Constitutional grant of power, the duties of the fire and police civil service board are provided by statute in La. R.S. 33:2477 which provides in pertinent part:

The Board shall:
|6(1) Represent the public interest in matters of personnel administration in the fire and police services of the said municipal government.
(2) Advise and assist the governing body, mayor, commissioner of public safety, and the chiefs of the fire and police departments of the municipality, with reference to the maintenance and improvement of personnel standards and administration in the fire and police services, and the classified system.
(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, at the direction of the mayor, commissioner of public safety, chief of either the fire or police department, or 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 in the said municipal fire and police services; review, and modify or set aside upon its own motion, any of its actions; 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.
******
(7) Make, alter, amend, and promulgate rules necessary to carry out effectively the provisions of this Part.
(8) Adopt and maintain a classification plan. The classification plan shall be adopted and maintained by rules of the board. (Emphasis added.)

Finally, pertinent to our inquiry here, La. R.S. 33:2496 addresses how temporary appointments are to be made and provides that “Mny person employed on a substitute basis shall, for the duration of the temporary employment, enjoy the class title and be entitled [to] receive the rate of pay for the class and position in which he is employed.” And La. R.S. 33:1967 provides in pertinent part that “every fire fighting apparatus shall be operated by a member of the department holding the rank of engineer or fire driver ...”

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694 So. 2d 460, 96 La.App. 5 Cir. 747, 1997 La. App. LEXIS 984, 1997 WL 163627, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-kenner-fire-department-v-municipal-fire-police-civil-service-lactapp-1997.