Villanueva v. Commission on Ethics for Public Employees

693 So. 2d 154, 1997 La. LEXIS 1314, 1997 WL 261427
Supreme Court of Louisiana·Decided May 20, 1997·No. No. 96-C-1912·Published·Cited by 2 cases

Opinion

| iLEMMON, Justice.*

In this proceeding, Ignacio C. Villanueva, a public employee with permanent status in the classified state civil service, is seeking review of a penalty imposed by the Commission on Ethics for Public Employees (Ethics Commission). The principal issue is whether the Civil Service Commission, rather than the court of appeal alone, has jurisdiction to review a fine and conditional suspension of a permanent civil service employee imposed by the Ethics Commission.

J2I

While Villanueva was the Superintendent of Police for the East Jefferson Levee District, the District granted a permit to operate a landfill and subsequent extensions of that permit to Dauvill, Inc., a corporation owned by Villanueva’s wife. Villanueva also worked as the general manager of Dauvill’s operations.

The Ethics Commission investigated whether this conduct violated the Code of Governmental Ethics, La.Rev.Stat. 42:1101-1169. After a public hearing, the Ethics Commission determined that Villanueva had violated Section 1112B of the Code by participating in and sharing responsibility for transactions affecting the economic interest of his wife’s company.1 Additionally, the Ethics Commission ruled that Dauvill had violated Section 1113 of the Code by applying for and receiving permit extensions from the District while its owner was the wife of the District’s police superintendent.

The Ethics Commission fined Dauvill and Villanueva $5,000 each for their respective violations. Additionally, the Ethics Commission ordered the District to suspend Villa-nueva until (1) Dauvill’s permit was cancelled or (2) Villanueva and all of his immediate family members divested themselves of all ownership interest in Dauvill and Villanueva was no longer employed by Dauvill.

Dauvill appealed the Ethics Commission’s ruling to the court of appeal,2 while Villa-nueva sought review of the ruling by the Civil Service Commission.3 The Civil Service Commission declined to review the penalty, citing lack of jurisdiction over the subject matter. The Commission concluded it had no jurisdiction because Villanueva had not been subjected to any action that affected Jjjhis employment status, nor had he been subjected to any disciplinary action enumerated in Civil Service Rule 12.2(b), which provides an exclusive list of disciplinary actions that may be imposed for cause upon a permanent employee.4 Noting that all of the penalties listed in Rule 12.2(b) constitute actions which adversely affect the employment relationship, the Commission characterized the effects of the Ethics Commission’s ruling as requiring Villanueva to surrender a permit to avoid being suspended and to pay a fine, neither of which affected his employment status.

Villanueva then appealed to the court of appeal. The appellate court remanded the matter back to the Civil Service Commission. 676 So.2d 1202. The court first concluded that any action taken by the Ethics Commission against a classified permanent employee, with the possible exception of a fine alone, is subject to review by the Civil Service Commission before an appeal may be taken to the [156] court of appeal. Next, the court held that when the Ethics Commission imposes a fine against a permanent classified employee and couples the fine with a disciplinary action which affects employment status and is an authorized disciplinary action under Civil Service Rule 12.2(b), the imposition of the fine is a disciplinary action initially reviewable by the Civil Service Commission, although the fine is not a penalty included under Civil Service Rule 12.2(b). Otherwise, the ^employee would be required to appeal the fine to the court of appeal and the other part of the penalty to the Civil Service Commission.

We granted certiorari to decide this important issue of the appropriate procedure for review of penalties imposed by the Ethics Commission on permanent classified employees. 679 So.2d 410.

II

Part I of Article X of the Louisiana Constitution provides for state and city civil service. La. Const, art. X, § 1 establishes civil service commissions for employees of the state and of cities with populations of over 400,000.5 La. Const, art. X, § 7 requires that permanent appointments and promotions in the service be made under a system based on merit, efficiency, fitness and length of service. La. Const, art. X, § 8(A) empowers each commission to review a disciplinary action taken against a person who has gained permanent status in the service as follows:6

No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in witting. A classified employee subjected to such disciplinary action shall have the right of appeal to the appropriate commission pursuant to Section 12 of this Part. The burden of proof on appeal, as to the facts, shall be on the appointing authority.

La. Const, art. X, § 12 grants each commission “the exclusive power and authority to hear and decide all removal and disciplinary cases,” with the right of appeal to the court of appeal.

La. Const, art. X, § 10 further authorizes each commission to adopt rules for 15the administration and regulation of the classified service.7 Pursuant to this authority, the State Civil Service Commission adopted Civil Service Rule 12.2(b), which contains an exclusive list of disciplinary actions that may be imposed by an appointing authority. See footnote 4.

Part III of Article X of the Louisiana' Constitution contains “other provisions” regarding public officials and employees. La. Const, art. X, § 21 requires the Legislature to enact a code of ethics for public officials and employees, as follows:

The legislature shall enact a code of ethics for all officials and employees of the state and its political subdivisions. The code shall be administered by one or more boards created by the legislature with qualifications, terms of office, duties and powers provided by law. Decisions of a board shall be appealable, and the legislature shall provide the method of appeal. (emphasis added).

Pursuant to this constitutional mandate, the Legislature enacted La.Rev.Stat. 42:1101-1169, the Code of Governmental Ethics. The Code authorizes the ethics body to investigate complaints about violations of the Code and to conduct hearings. La.Rev. [157] Stat. 42:1141. The ethics body, upon finding a violation of the Code by a public employee or other person, may “remove, suspend, or order a reduction in pay, or demotion of the public employee or other person, or impose a fine of not more than five thousand dollars, or both.” La.Rev.Stat. 42:1153B.

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Villanueva v. Commission on Ethics for Public Employees, 693 So. 2d 154, 1997 La. LEXIS 1314, 1997 WL 261427 (La. 1997).

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