Roberts v. Town of Jonesboro

122 So. 3d 1045, 2013 WL 4009025, 2013 La. App. LEXIS 1593
CourtLouisiana Court of Appeal
DecidedAugust 7, 2013
DocketNo. 48,396-CA
StatusPublished
Cited by1 cases

This text of 122 So. 3d 1045 (Roberts v. Town of Jonesboro) 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
Roberts v. Town of Jonesboro, 122 So. 3d 1045, 2013 WL 4009025, 2013 La. App. LEXIS 1593 (La. Ct. App. 2013).

Opinion

MOORE, J.

_|_1The Town of Jonesboro appeals a judgment finding that its mayor improperly removed its fire chief, David Roberts, by failing to obtain the formal approval of the board of aldermen before appointing the new fire chief,1 and awarding Roberts damages of $36,639.93 in spite of a release executed by the parties. We reverse and render.

Factual and Procedural Background

Roberts had been Jonesboro’s fire chief for several years. In January 2007, the newly elected mayor, Leslie Thompson, got the board of aldermen to name Rob[1047]*1047erts formally to the post, which paid $31,000 a year. In 2011, however, when Mayor Thompson was reelected, he decided to appoint a new fire chief. The mayor so advised Roberts by letter of January 10, 2011.

At the board meeting on January 11, the mayor asked the board to appoint someone else, Treadway, as fire chief. A board member made a motion to that effect, and it was seconded and approved unanimously. The minutes show, however, and the town clerk confirmed, that the board never took any formal action to remove Roberts. Both the mayor and the clerk testified that they considered Roberts officially removed as soon as Treadway was approved, as the town has only one fire chief. Roberts admitted that after January 11, he provided no more services as fire chief.

In early February, Roberts’s lawyer made a demand on the town under the Payment of Employees law, La. R.S. 23:631 et seq., for 160 hours of unused vacation time, 1,324.5 hours of paid leave (“K-time”) and 30 days of penalty wages, a total of $24,953.52, plus attorney fees of $8,309.52, for | ¡¡a total of $33,263.04.

The parties executed a release on March 9. The town paid Roberts $24,407.26, in exchange for which he agreed to “release, discharge and forever renounce any and all further claims against” the town “for any and all past due wages, penalty wages, K-time, vacation pay, compensation of any nature and attorney’s fees arising from the employment” of Roberts by the town. The document also recited that the “payment referred to herein includes 33 days of penalty wages at the rate of $115.70/day, 160 hours of vacation pay as well as K-time accrued” during Roberts’s employment.

Roberts admitted signing the release and cashing the two checks that constituted his settlement, but testified that this amount covered only 33 days of penalty wages, 160 hours of vacation pay and unpaid K-time.

After retaining new counsel, Roberts filed this suit against the town in August 2011. He alleged that he had “never been terminated from his position” under the procedure set forth by statute.2 He demanded past due wages, penalty wages, amounts paid for prescription medications since January 11, 2011, and reinstitution of medical coverage.

The town responded that it effectively removed Roberts from office as soon as it properly appointed his successor and that he waived any remaining claims by signing the release and accepting the cash settlement.3

| ^Action of the District Court

At trial in May 2012, the three witnesses — Mayor Thompson, Roberts and the town clerk, Melba Holland — testified as outlined above. In July, the court rendered reasons for judgment finding that the town did not comply with R.S. 33:404 A(3) in removing Roberts from office. As for the release, the court conceded that “some of the language” indicated that Roberts renounced any and all further claims, but the last paragraph indicated that the payment included only the 33 days of pen[1048]*1048alty wages at $115.70 a day, 160 hours of vacation pay and unpaid K-time, a fact Roberts confirmed in his testimony. The court found the release “was only for what it says,” K-time, vacation pay and penalty wages, “and would have nothing to do with this lawsuit.” The court gave the parties 10 days to brief “their assessment of what damages would be [due] to David Roberts.”

On October 9, the court rendered judgment awarding Roberts $36,649.93.4 The town has appealed, raising two assignments of error.

Discussion

By its first assignment of error, the town urges the court erred in finding that the actions of the town and board of aider-men did not constitute the lawful termination of Roberts as fire chief. The town contends that it complied with R.S. 33:404 A(3) when the board unanimously accepted the mayor’s recommendation to name Treadway as the new fire chief. The Jonesboro Code of Ordinances, § 9 — 1(b), establishes only one fire chief;5 |4state law, R.S. 44:2, clarifies that every public officer shall discharge his duty “until his successor is inducted into office”; and as a factual matter, Roberts was never in doubt that he had been replaced. The town concludes that Roberts was formally and legally removed from office effective January 11, 2011.

Roberts responds that the town did not follow the provisions of R.S. 33:404 A(3): the statute does not say a town may legally remove a fire chief simply by appointing a new one. In support, he cites La. Atty. Gen. Op. 95-216 (1996)6 and argues that R.S. 42:2 does not apply, as an appointed department head is not a “public officer.”

As noted, the Lawrason Act, specifically La. R.S. 33:404 A(3), states that the removal of a department head, such as the fire chief, “shall be subject to approval by the board of aldermenf.]”

This court has previously held that the mayor and board of aldermen may satisfy the requirements of the Lawrason Act by substantial compliance with its provisions. Ginn v. Village of Bonita, 62 So.2d 159 (La.App. 2 Cir.1952). Moreover, the supreme court has held that another term used in R.S. 33:404 must “be given its broadest possible interpretation in order to enable the mayor to exercise” his powers under the Act. Chapman v. Bordelon, 242 La. 637, 138 So.2d 1 (1962). While strict compliance is to be preferred, we find that the procedure followed here substantially complied with R.S. 33:404 B(3). There is absolutely no doubt that the mayor’s |smotion to appoint a new fire chief, and the board’s unanimous approval, constituted official action to remove Roberts from that position. Moreover, the record plainly shows that Roberts received Mayor Thompson’s letter setting forth the intended personnel change, he attended the board meeting in which he was replaced, and he rendered no further services as fire chief after January 11. Roberts simply cannot argue that he or anybody else did [1049]*1049not understand the effect of the board’s action. In light of the substantial compliance with R.S. 33:404 A(3) and the full notice to Roberts, the district court committed legal and factual error in finding that the town never properly terminated Roberts. This assignment of error has merit.

By its second assignment of error, the town urges the court erred in awarding Roberts money for past due wages despite the release executed by the parties. It cites the portion of the release referring to “all further claims against the town” for “compensation of any kind,” as well as Roberts’s demand letter, which raised a “final wage claim under R.S. 23:631 et seq.” Although the reasons for judgment do not state this, the town submits that the court found that the release applied only to past due wages or other compensation as of March 9, 2011,

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Bluebook (online)
122 So. 3d 1045, 2013 WL 4009025, 2013 La. App. LEXIS 1593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberts-v-town-of-jonesboro-lactapp-2013.