Sterling v. Board of Commissioners, Port of New Orleans

527 So. 2d 1122, 1988 La. App. LEXIS 1586, 1988 WL 66042
CourtLouisiana Court of Appeal
DecidedJune 21, 1988
DocketNos. CA 87 1054, CA 87 0607
StatusPublished
Cited by2 cases

This text of 527 So. 2d 1122 (Sterling v. Board of Commissioners, Port of New Orleans) 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
Sterling v. Board of Commissioners, Port of New Orleans, 527 So. 2d 1122, 1988 La. App. LEXIS 1586, 1988 WL 66042 (La. Ct. App. 1988).

Opinion

CRAIN, Judge.

This is an appeal of decisions of the Civil Service Commission finding that a 15 day suspension was wrongful and awarding back pay of wages and salaries, but denying that wages and salaries encompass amounts that could be earned in private employ during off-duty hours. Appellant also appeals a referee’s grant of a summary dismissal of Mr. Sterling’s appeal of a 60 day suspension from special detail employment, holding that the Civil Service Commission has no jurisdiction over such employment.

FACTS

Byron Sterling is a permanent status employee of the Dock Board, Port of New Orleans. He was suspended from his job as a harbor policeman for 15 days due to automobile accidents on 1/11/85 and 6/14/85. After a hearing, a referee determined that the suspension was unwarranted and awarded back pay of wages and salaries, including amounts that could have been earned doing off-duty, private, “special details.” In some instances Harbor police work special details for private employers in their off-duty hours. The policemen who work these special details maintain a fund, the Harbor Police Special Detail Fund, to pay the participating policemen and their supervisors. The State does not participate in this fund. The individual policemen are responsible for payment of their own federal, state and social security taxes on funds earned through special details, and these amounts are not taken into consideration in determining wages or benefits of the policemen.

Special detail work is approved by the superintendent of the Harbor Police. Participation in special details is voluntary on the part of the individual officers. Byron Sterling had signed up, and been assigned, to work one of the special details. Due to the suspension he was ineligible to work the special detail. The referee awarded damages for the amounts lost both in salaries and wages and special duty wages. The State Civil Service Commission affirmed the award of damages insofar as salaries and wages but denied reimbursement of wages lost from the inability to work special details.

In a separate incident on March 3, 1986, while working on a special detail, Byron Sterling was reported for an altercation with a motorist. After an investigation by the Internal Affairs Department of the [1124]*1124Harbor Police, it was determined that Mr. Sterling had violated four Harbor Police rules and regulations. It was determined that Sterling would be suspended from special detail work for 60 days. This decision was made by Sergeant Turner, Special Detail Supervisor and approved by Superintendent A.T. Ben of the Harbor Police Department. The suspension notice was printed on the letterhead of the Harbor Police, President of the Special Detail Fund, Port of New Orleans. Mr. Sterling brought an action through the Civil Service Commission. The referee determined that the suspension was not ordered by the proper appointing authority and was not considered a disciplinary action on Byron Sterling within the course of his employment as a classified civil service employee and summarily dismissed the appeal. Application for review of the referee’s decision by the State Civil Service Commission was denied.

The issues for review are whether the term “wages and salaries” as used in La. R.S. 49:113 includes amounts that could be earned in private employment in off-duty hours and whether the Civil Service Commission has the jurisdiction to render a decision regarding a disciplinary action concerning private employment of civil servants in their off-duty hours.

THE 15 DAY SUSPENSION BY APPOINTING AUTHORITY

La.R.S. 49:113 states:

Employees in the state or city civil service, who have been illegally discharged from their employment, as found by the appellate courts, shall be entitled to be paid by the employing agency all salaries and wages withheld during the period of illegal separation, against which amount shall be credited and set-off all wages and salaries earned by the employee in private employment in the period of separation, (emphasis supplied)

In Hebbler v. New Orleans Fire Department, 310 So.2d 113 (La.1975), the Louisiana Supreme Court held that state supplemental pay for city firemen was part of the “wages and salaries” referred to in La.R.S. 49:113 and ordered the city to reimburse the wrongfully discharged employee for supplemental pay lost as a result of the discharge. The appellant contends that Hebbler stands for the proposition that funds from private sources for off-duty employment falls within the terms “wages and salaries” as used in La.R.S. 49:113. Hebbler cannot be construed so broadly. In Hebbler the issue was state supplemental pay for city firemen for performing their regular duties as firemen for the city. Statutes require that the supplemental pay be computed in the determination of retirement and pension contributions by the employer and in deductions for state and federal income taxes and social security taxes. None of these facts are present in the instant case. The Harbor Police do not factor the special detail pay in making computations regarding pensions, retirement programs, state and federal income taxes or social security taxes. But, the strongest distinction between Hebbler and the present case is that the special detail pay is not “wages and salaries” for duties as a Harbor Patrolman. The special details are an option for off-duty Harbor Patrolmen whereas the firemen in Hebbler were drawing state supplemental pay for performing their ordinary duties. Wages earned through special details are not subject to state or city participation, nor are they guaranteed. In some instances the private employers have gone bankrupt or withheld payment for other reasons and the participating patrolmen did not get paid. The Dock Board does not govern the special detail fund. The private employer makes payment directly into the fund, and the officers are then paid. Each officer pays a nominal fee to pay the expenses incurred by the fund: bookkeeper, check-writing machine and necessary forms. The fund is privately maintained, and participation is on a voluntary basis. There are no “guaranteed details.” Payment for special details depended on actual work by the officer and payment by the private employer to the fund. If the officers do not work or the employers do not make payment to the fund, the officer does not get paid. There are no sick leave exceptions to this rule.

We find that the fund is a private employment arrangement and not within the [1125]*1125jurisdiction of the Civil Service Commission to regulate. In addition, we do not find that Hebbler is to be construed so broadly as to include amounts earned in private employment during off-duty hours as “wages or salaries” as used in La.R.S. 49:118. This assignment is without merit.

THE 60 DAY SUSPENSION FROM SPECIAL DETAILS

Civil Service Commission Rule 13.10 provides in part:

An appeal may be made to this Commission by:
(b) Any person in the Classified Service who, having acquired permanent tenure, alleges that he has been demoted, dismissed, discriminated against, or subjected to any disciplinary action contrary to any provision of the Article or of the Rules of this Commission.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Walter Powers v. City of New Orleans
783 F.3d 570 (Fifth Circuit, 2015)
Hebert v. New Orleans Police Department
805 So. 2d 345 (Louisiana Court of Appeal, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
527 So. 2d 1122, 1988 La. App. LEXIS 1586, 1988 WL 66042, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sterling-v-board-of-commissioners-port-of-new-orleans-lactapp-1988.