NEW ORLEANS FIREFIGHTERS v. New Orleans

590 So. 2d 1172, 1991 WL 255919
CourtSupreme Court of Louisiana
DecidedDecember 2, 1991
Docket91-CA-0969
StatusPublished
Cited by20 cases

This text of 590 So. 2d 1172 (NEW ORLEANS FIREFIGHTERS v. New Orleans) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
NEW ORLEANS FIREFIGHTERS v. New Orleans, 590 So. 2d 1172, 1991 WL 255919 (La. 1991).

Opinion

590 So.2d 1172 (1991)

NEW ORLEANS FIREFIGHTERS ASSOCIATION LOCAL 632, AFL-CIO and its President William J. Sanchez.
v.
CITY OF NEW ORLEANS consolidated with
The POLICE ASSOCIATION OF NEW ORLEANS, et al.
v.
The CITY OF NEW ORLEANS, a Louisiana Municipality.

No. 91-CA-0969.

Supreme Court of Louisiana.

December 2, 1991.

*1173 William D. Aaron, Jr., City Atty., Cheryl M. Gaines, Asst. City Atty., Elmer G. Gibbons, Kathy Lee Terregano, Brett J. Prendergast, Deputy City Attys., for appellants.

Louis L. Robein, Jr., Gilbert R. Buras, Jr., Robert H. Urann, Gardner, Robein & Urann, Nancy Picard, Metairie, Frank G. DeSalvo, David Rash, Dale Charles Wilks, New Orleans, Sidney M. Bach, Gerald Wasserman, Bach and Wasserman, Metairie, Vernon V. Palmer, New Orleans, for appellee.

LEMMON, Justice.

This is a direct appeal under La.Const. art. V, § 5(D) from a judgment of the district court declaring unconstitutional New Orleans Municipal Ordinance 14,268, which requires that all City employees be domiciled in Orleans Parish within a certain period following the effective date of the ordinance. The principal issue raised by this appeal is whether the power to impose domicile requirements on municipal employees is vested in the municipal civil service commission or in the municipal governing authority.

I

In 1973 the New Orleans City Council adopted a residency ordinance which required all employees of the City to reside in Orleans Parish, but allowed exemptions for those employees who lived outside Orleans Parish at the time of adoption of the ordinance and for those employees who thereafter, on an individual basis, obtain an exemption from the appointing authority with the approval of the Chief Administrative Office.

*1174 In 1990 the City Council adopted Municipal Ordinance No. 14,268, effective December 10, 1990, prohibiting city employment to any person whose domicile is outside Orleans Parish.[1] A transitional grandfather clause allowed city employees who were in compliance with the 1973 ordinance at the time of the adoption of the new ordinance to continue living outside the parish until January 1, 1994. The ordinance also provided for dismissal of an employee for a knowing failure to comply with the ordinance and for fines and/or imprisonment against any person who makes false representations in connection with the ordinance.

After the ordinance was adopted, the City's Chief Administrative Officer distributed a form to all employees and required them to certify their domicile pursuant to the definition of domicile contained in the ordinance.

The New Orleans Firefighters Association and the Police Association of New Orleans responded by obtaining a temporary restraining order from the federal district court which prohibited the City from implementing the ordinance or requiring certification of domicile. However, because of substantial unresolved state constitutional law issues, the federal court issued an order of abstention, stayed the case pending final resolution of the state law issues, and dissolved the temporary restraining order.

The City then issued another memorandum requiring employees to certify their domiciles. The same plaintiffs filed these class actions seeking a declaratory judgment on the constitutionality of the ordinance and an injunction to prohibit the City from enforcing the unconstitutional ordinance. The trial court consolidated the actions and certified the class actions.

After the hearing on the preliminary injunction, the trial court issued the following judgment:

Based upon the verified pleadings, affidavits, and deposition testimony in this case, and the law, particularly the provisions of Article X, Section 10(A) of the 1974 Louisiana Constitution, it is ordered, adjudged and decreed that the defendant, the City of New Orleans, its agents, officers and employees be and are hereby preliminarily enjoined from enforcing or implementing Municipal Ordinance No. 14268, as unconstitutional. In all other respects, the preliminary injunction is denied, particularly, as to the Certification of Domicile/Residence Form.

The City appealed directly to this court.

II

The Louisiana Constitution has contained detailed provisions for the state and city civil service systems since 1952.[2] The principal *1175 objectives of the civil service system are to select and promote public employees competitively on the basis of merit, fitness and qualifications, to secure the tenure of public employees, and to protect public employees against discrimination, intimidation or dismissal because of political or religious beliefs, sex, race or other unjustified reasons. 3 Projet of a Constitution for the State of Louisiana 501 (1954); H. Kaplan, The Law of Civil Service 63 (1958); 1 J. Stein, G. Mitchell & B. Mezines, Administrative Law §§ 5.06, 5.07 (1990); La. Const. art. X, §§ 7 and 8(B). The Projet noted that the primary function of the state and city civil service commissions in Louisiana is to "see to it that the rank and file of state and city employees are selected competitively on the basis of merit, free from political influence" and to "see that these employees are protected from dismissal or discriminatory treatment because of religious or political reasons." Id. at 504.

In order to achieve these objectives, La. Const. art. X, § 10(A)(1) grants broad and general rulemaking powers to the state and city civil service commissions to regulate the classified service, as follows:

Rules. (1) Powers. Each commission is vested with broad and general rulemaking and subpoena powers for the administration and regulation of the classified service, including the power 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.[3]

The rules adopted by a civil service commission pursuant to this authority "have the effect of law," and the commission may "impose penalties for violations of its rules by demotion in or suspension or discharge from position, with attendant loss of pay." La. Const. art. 10, § 10(A)(4).

This court, in interpreting the power granted to the commissions under a similar provision of the 1921 Constitution, recognized in Barnett v. Develle, 289 So.2d 129, 143 (La.1974):

The patent purpose of Section 15 is to insure uniform treatment of all similarly classified employees in the State and municipal civil service systems provided for therein.

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Bluebook (online)
590 So. 2d 1172, 1991 WL 255919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-orleans-firefighters-v-new-orleans-la-1991.