Lead Opinion
| ^Defendants, Jefferson Parish President and Parish Council (collectively “the Parish”), appeal the judgment of the Jefferson Parish Personnel Board (“the Board”) in favor of Plaintiffs
FACTS & PROCEDURAL HISTORY
In 1966, the Jefferson Parish Council (“the Council”) passed Ordinance 14796, which amended the Parish Pay Plan by adding the Dominick A. Albano Tenure Award Program (“Tenure Award Program” or “Tenure Award”) and making it retroactive to January 1, 1966. Under the Tenure Award Program, each employee in the classified service having two or more years of continuous service is paid $25 for each full calendar year of such service, payable annually in a lump sum on December 1.
|3In November 2010, the Council adopted Ordinance 23916, ratifying the Parish’s annual operating budget for 2011. Ordinance 23916 explicitly denied funding for Tenure Awards.
On December 28, 2011, eight Jefferson Parish employees
The Pay Plan of the Classified Service states that, “In addition to the pay rates heretofore provided in this Plan, each employee in the classified service having 2 or more years of continuous sendee shall be paid $25.00 for each full calendar year of such service.” “This payment shall be termed a Tenure Award, shall be intended to encourage and recognize career service, and shall be payable to employees in a lump sum, annually, on December 1.” There are no provisions for selectively paying the award based on budgetary constraints as is stated in the Personnel Rules when referring to annual pay raises. An action of this nature must be approved by the Jefferson Parish Personnel Board.
In its memorandum, the Parish asserted that it “must discontinue the practice of providing employees the Tenure Award because it is a prohibited donation of funds in violation of La. Const. Art. VII, § 14.” The Parish argued that the Tenure Award “does not pass constitutional muster” because it is not a merit award, but rather “is given to all employees regardless of the employee’s actions beyond those that are currently compensated.” The Parish concluded that the Tenure Award constitutes a prohibited donation of public funds in violation of La. Const. Art. VII, § 14, and should be discontinued.
At the Board hearing, Ronald Sessum, one of the appealing workers, argued on behalf of the Employees. The Employees’ position was that neither the Parish President nor the Parish Council had the legal authority to refuse payment of the Tenure Award. An assistant parish attorney argued on behalf of the Parish and maintained the Parish opposed payment of the Tenure Award on the grounds that it is unconstitutional and that the Parish does not have the funds to pay the awards.
After taking the matter under submission, the Board issued its decision on June 20, 2012, stating in pertinent part:
The Personnel Board having reviewed the record, the submissions and arguments of both sides, the facts and the applicable law rules as follows:
|sl. The Dominick A. Albano Tenure Award is not an unconstitutional use of Parish funds under the applicable law and the facts of this case.
2. The action of the Administration in presenting an amendment to the Parish Pay Plan to the Parish Council without first submitting it to the Personnel Board for consideration, is in direct conflict with Article 4, Section 4.0B D of the Home Rule Charter, which was specifically written to protect the Civil Service System and the employees of the Parish, is not in the best interests of either.
The appeals are granted; the appellants are entitled to, and should receive their annual Dominick A. Albano Tenure awards due December 1, 2011.6
The Parish appeals, seeking reversal of the determination that the Employees are entitled to the Tenure Awards due December 1, 2011.
’ On appeal, the Parish contends the Board lacks subject matter jurisdiction to render a decision regarding the constitutionality of the Tenure Award. Alternatively, it argues the Board erred in finding the Tenure Award is constitutional. The Parish also asserts the Board erred in ordering the Parish to amend its 2011 operating budget to fund the Tenure Award.
LAW & ANALYSIS
The Parish’s sole response to the Employees’ administrative appeal before the Board was that its own ordinance is unconstitutional. And, now, after the Board found the ordinance establishing the Tenure Award is constitutional, the Parish argues the Board lacked subject matter jurisdiction to determine the constitutionality of the Tenure Award. The Employees contend that the | (¡determination of the constitutionality of a local ordinance should be left to the Board. Alternatively, the Employees argue the Parish failed to properly raise lack of subject matter jurisdiction as required by the Board’s appellate procedure.
The Jefferson Parish Personnel Board Rules of Appeal Procedure
These provisions, as related to the Board’s subject matter jurisdiction, must be read in conjunction with the Louisiana Code of Civil Procedure rules on lack of subject matter jurisdiction. Jurisdiction over subject matter cannot be conferred by consent of the parties. La. C.C.P. art. 3. Lack of subject matter jurisdiction is a declinatory exception. La. C.C.P. art. 925(A)(6). Declinatory exceptions must be pleaded prior to or in the answer or certain other limited pleadings. La. C.C.P. art. 928(A). All objections that may be raised through the declinatory exception are waived unless pleaded therein, except the court’s lack of subject matter jurisdiction over the subject matter of the action. La. C.C.P. art. 925(C). (Emphasis added.)
Generally, the failure to plead a decli-natory exception prior to answer or judgment by default constitutes a waiver of the objection. However, the exception of lack of jurisdiction over the subject matter goes to the core of the validity of a judgment and is not subject to the waiver |7provisions generally affecting declinatory exceptions ... and the exception may be raised at any stage of the proceedings.
Piper v. Olinde Hardware & Supply Co., Inc.,
Accordingly, we are not precluded from considering the issue of whether the Board had jurisdiction to determine the constitutionality of the Tenure Award.
The duties of the Board, in pertinent part, include reviewing the salary plan developed by the personnel director, holding public hearings thereon, making necessary amendments, and submitting the proposed plan to the Council for approval. Jeff. Par. Charter, Art. 4, Section 4.03(D)(2). Similarly, the Board reviews personnel rules prepared by the personnel director, including policies and procedures for administration of the salary plan; makes necessary amendment after public hearing; and submits the proposed rules to the Council. Jeff. Par. Charter, Art. 4, Section 4.03(D)(3)(b). In addition, the Board holds hearings on disciplinary matters as provided by the rules, and performs “such other policy making or quasi-judicial duties as may be required.” Jeff. Par. Charter, Art. 4, Section 4.03(E)(1) and (4).
] ^Determination of a law’s constitutionality is a judicial function constitutionally vested in the courts. La. Const. Art. V, § 1; Beauclaire v. Greenhouse, 05-765 (La.2/22/06);
Considering the foregoing, we find the Board did not have authority to rule on the constitutionality of the Tenure Award Program, as established by parish ordinance.
Notwithstanding its dissatisfaction with the Board’s ruling on constitutionality, the Parish urges us to review the constitutionality issue ourselves, if we decide the Board improperly ruled on the constitutionality issue. The Parish asserts the ruling of the Board “effectively placed the constitutionality of the Tenure Award at issue.” Despite its prior assertion that the Board did not have subject matter jurisdiction to determine constitutionality, the Parish now desires this Court to rule on the issue. The reasons stated by the Parish in its brief for failure to pay the Tenure Award are “financial concerns of an approximately $700,000 expenditure, which may not be constitutionally permissible.”
“[Cjourts will not decide abstract, hypothetical or moot controversies, or render advisory opinions with respect to such controversies. In order to avoid deciding abstract, hypothetical or moot questions, courts require cases submitted for adjudication to be justiciable, ripe for decision, and not brought prematurely.” Cat’s Meow, Inc. v. City of New Orleans through Dept. of Finance, 98-601 (La.10/20/98);
We do not find that this case is in the proper posture for a ruling on constitu
In Greater New Orleans Expressway Com’n v. Olivier, 04-2147 (La.1/19/05);
Among the threshold requirements that must be satisfied before reaching a constitutional issue is the requirement that the party seeking a declaration of unconstitutionality have standing to raise a constitutional challenge. The requirement of standing serves to facilitate deference to the legislature in matters within the legislature’s purview. Because legislators owe the same duty to obey and uphold the constitution as do judges, legislators are presumed to have weighed the relevant constitutional considerations in enacting legislation, and legislative acts are presumed constitutional “until declared otherwise in proceedings brought contradictorily between interested persons.” [Citations omitted.]
Greater New Orleans Expressway Com’n v. Olivier,
|inIn the present case, the Employees appealed the Parish’s refusal to pay the Tenure Award, as clearly required by the 1966 ordinance. In their administrative appeal, they sought payment of the award. Thus, in essence, the Employees sought a mandamus ordering the Parish to pay their awards in compliance with the ordinance. In Dore v. Tugwell,
Ordinances are presumed constitutional and, thus, are valid and enforceable until they are judicially held to be unconstitutional. City of Kenner v. Kyle,
h Regarding the Parish’s contention that the Board erred in ordering the Parish Council to amend its operating budget to fund the Tenure Award, we find no merit to that contention because the Board’s ruling did not order the Council to amend its operating budget. The ruling simply held that Plaintiffs are entitled to receive the Tenure Award.
DECREE
Based on the foregoing, we find the Jefferson Parish Personnel Board did not have authority to rule on the constitutionality of the Dominick A. Albano Tenure Award. However, its determination that the Tenure Award is constitutional is inconsequential to its judgment that Plaintiffs are entitled to the Tenure Award because ordinances are presumed constitutional until a judicial determination to the contrary. A review of the record shows the Parish failed to prove Plaintiffs were not entitled to the Award under the facts. Accordingly, we affirm the Board’s judgment finding Plaintiffs/Appellants are entitled to the Tenure Award.
AFFIRMED.
CHEHARDY, Chief Judge, concurs in part and dissents in part.
Notes
. There are eight plaintiffs: Helena Harris, Margaret D. Remedes, Mary C. Clement, Lauren Claire Call, Adrianne A. Richoux, Dana S. Dunlap, Ronald E. Sessum, and Keith D. Hutchins.
. The record does not contain a copy of Ordinance 23916, but we are entitled to take judicial notice of it. See La. C.E. art. 202.
.According to the appeal petitions, all eight employees were employed in the Jefferson Parish Personnel Department with the following job titles: Ronald Sessum, Assistant Director of Personnel; Dana Dunlap, Executive Assistant; Lauren Call and Keith Hutchins, Personnel Technician III; Mary Clement and Adrianne Richoux, Typist Clerk III; and Helena Harris, Clerk III. Margaret Remedes' job title was not listed in her appeal petition.
. The basis for the motion to recuse was that the hearing officer was an employee in the classified service of the parish and, therefore, had an interest in the outcome of the appeals.
. Prior to the hearing, the Board notified the Attorney General of Louisiana of the constitutional challenges raised by the Parish. The Attorney General did not intervene in the proceeding.
. In a footnote, the Board noted.
The jurisdiction of the Personnel Board is limited to those who file timely appeals before it, so the Board lacks the power to extend its ruling. Howeverf,] the Board is not unmindful that the vast majority of Parish employees are not covered by this ruling. This inequity cries out for redress. It is hoped the Parish Council will see fit to extend the 2011 tenure award to all employees who otherwise would have qualified for it.
. We take judicial notice of the Jefferson Parish Personnel Board Rules of Appeal Procedure, pursuant to La. C.E. art. 202. In addition, the Board "may take notice of the provisions of the Charter, the Personnel Rules, the Classification Plan, and the Pay Plan without the necessity of an offer in evidence.” Jeff. Par. Pers. Bd. Rules of App. Proc., Rule 9(p).
. Black's Law Dictionary, Fifth Edition, defines "quasi judicial” as: "A term applied to the action, discretion, etc., of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature.” See Connolly v. Stone,
Concurrence in Part
concurs in part and dissents in part.
11¾1 concur with the majority’s determination that this case is not in a proper posture for a ruling on constitutionality, but I respectfully dissent from their decision to affirm the Personnel Board’s ruling without further proceedings. I would vacate the judgment and remand to the Personnel Board for reconsideration and a new ruling.
I agree that the Parish does not have standing to assert the unconstitutionality of its own ordinance. The Parish’s self-contradictory response to the Employees’ claims — first raising constitutionality in the Board proceedings, then arguing that the Board cannot consider constitutionality — illustrates that the Parish must seek another way to deal with the Tenure Award.
In my view, a refusal by an appointing authority to pay a salary to which an employee is entitled may be analogized to a disciplinary action by the appointing authority.
A parish civil service employee may apply to the personnel board for review of a disciplinary action, at which time the appointing authority bears the burden of proving legal cause. Lewis v. Jefferson Parish Dept. of Pub. Works, 99-16, p. 4 (La.App. 5 Cir. 5/19/99),
Legal cause for disciplinary action exists if the facts found by the board disclose
“An appellate court review of an administrative disciplinary decision is limited to a determination of whether the decision was made in good faith for legal cause.... ” Id.,
The record before us shows the Board predicated its ruling on an improper foundation — the constitutionality of the Tenure Awards Program, which the Board is not authorized to determine, rather than on whether the actions taken against the Employees were made in good faith for cause. In my opinion, the ruling should be vacated and the matter remanded for reconsideration and a new ruling by the Personnel Board.
Accordingly, I concur in part and dissent in part.
. Since the Tenure Awards Program was established by parish ordinance, a logical alternative would be for the Parish to seek passage of another ordinance removing it from the Pay Plan.