340 So. 2d 1314 | La. | 1976
Lead Opinion
The basic issue is whether, in a civil service system based upon promotion on the basis of seniority and examination, employees may nevertheless be appointed to newly created supervisory positions without examination and despite lack of seniority.
The court of appeal held, 327 So.2d 548 (La.App.2d Cir. 1976), that by virtue of Art. 14, Section 15.1, subsection 16, La. Constitution of 1921, seniority and examination requirements did not apply to appointments to newly created positions, relying upon In re Kelly, 224 La. 574, 70 So.2d 130 (1954). We granted certiorari, 332 So.2d 217 (1976), because we doubted the correctness of that conclusion.
I.
This litigation arises under the municipal fire and police civil service system. It was first created by Act 102 of 1944, La.R.S. 33:2471-508 (1950), and later constitutional-ized almost verbatim as Section 15.1 (subsections 1 through 39) of Article XIV, Louisiana Constitution of 1921 (pursuant to constitutional amendment submitted by Act 631 of 1956).
These provisions were continued as statutory law by the 1974 constitution (Article 10, Section 18), which created and established the municipal fire and police civil service system, Section 16, and provided that, Section 17, “Permanent appointments and promotions in municipal fire and police civil service shall be made only after certification by the applicable municipal fire and police civil service board under a general system based upon merit, efficiency, fitness, and length of service” as provided by the previous constitutional provision, Article XIV, Section 15.1, Louisiana Constitution of 1921.
II.
The facts show, insofar as pertinent to our decision:
In April, 1972, the elected Public Safety Commissioner of the City of Shreveport designated three majors (the 1st, 3d, and 4th ranking) as assistant police chiefs. These were new classifications for the Shreveport Police Department.
Subsequently, in November 1972 (after protests against the illegality of these appointments), the Municipal Fire and Police Civil Service Board formally created new classifications (one class of Assistant Chief, two positions, and one class of Assistant Chief for Administration, one position). It then certified to these positions the three appointees who were filling the positions, without examination and without regard to seniority.
Several plaintiffs then filed suit to vacate these appointments as illegal and to require testing, certification, and appointment of employees to these new positions in accordance with Article 14, Section 15.1. These plaintiffs included the second-ranking major, who had been passed over by the appointments.
As the court of appeal correctly held, the municipal fire and police civil service system created by that provision “has a basic premise that positions within the classified service should be filled on the basis of testing and seniority, i. e., when a group of candidates have demonstrated
III.
The civil service board and the previous courts held that the blanketing in of the incumbents previously appointed to the new positions is authorized by Subsection 16 of Article 14, Section 15.1.
The language quoted is susceptible to the interpretation followed. Nevertheless, we reach a different interpretation: The provision should be read in context with Article XIV, Section 15.1 as a whole and with the preceding Subsections 13, 14, and 15
Section 15.1 provides that, after civil-service boards adopt a classification plan (Subsection 13, see footnote 2) and allocate each position in the classified service to its appropriate class within the classification plan (Subsections 14 and 15, see footnote 2), then incumbents serving in these positions (when allocated to their appropriate class) will continue to serve in them (Subsection 16, see footnote 1). Furthermore, whenever the duties of a position are so changed that the position in effect belongs within a different class than that to which originally allocated, the change operates to abolish the position and to create a new position of a different class (Subsection 14, second paragraph, see footnote 2), to which it is reallocated (Subsection 16, second paragraph, see footnotes 1 and 4), without loss of status by the incumbent.
In context, Subsection 16 thus provides that an employee already serving in a position (either at the time the civil-service system comes into effect, or by virtue of a permanent appointment to it under the civil-service system) shall continue to serve in it, after it is allocated or reallocated, as if he had originally been appointed to the newly classified position after proper examination and certification to it. In context, this continuance of civil-service status as a permanent appointment to the newly classified position, without re-examination or re-certification by the board, occurs only in connection with (1) the allocation under Subsections 13 and 14 of pre-existing positions initially to their proper class
To summarize: In the context of its statutory setting, Subsection 16 does not permit the creation of entirely new positions in an existing civil service system, and then filling them by political appointment without examination and without regard to seniority in service. Subsection 16, in the context of the preceding Subsections 13-15, merely permits the “allocation” or “reallocation” of pre-existing permanent positions without examination or certification; it does not authorize the creation of new positions to be available for political appointment without compliance with civil-service requirements.
Thus, the apparent intent of Subsection 16 is (1) to blanket in all employees at the time a civil service system becomes effective (when its pre-existing positions are first allocated to a class), and (2) thereafter, similarly, to prevent loss of status to those permanent employees if the positions to which they have previously been permanently appointed are allocated or reallocated.
We are re-enforced in this interpretation by considering the provisions of Section 15.1 as a whole. Stringent provisions limit filling vacancies (Subsection 17), demotions (18), transfers (19), layoffs and re-instatements (20, 29), abolition of positions (28), testing for eligibility (22), admission to promotional or competitive tests (23), and certification and appointment (24). The object of these provisions is both to assure initial appointment on the basis of examinations, and thereafter to assure promotions
Likewise, Subsection 26 stringently limits temporary or provisional appointments in duration and prevents such appointees from acquiring permanent status. This further manifests the statutory intent that permanent status be acquired only through examination, and that promotion to another classified position be permitted only in accordance with the statutory scheme upon certification on the basis of examination plus seniority qualifications.
The civil service system created by Section 15.1 is based upon permanent appointment or promotion only after certification for eligibility based on testing and length of service. In context, Subsection 16 does not provide a method of evading this basis for permanent appointments or promotions by permitting blanketing in political appointees to newly-created positions; it simply protects permanent employees in pre-exist-ing positions from adverse loss of status when their positions are initially allocated or are subsequently reallocated to a classification within the civil service system.
We conclude, therefore, that when (as here) an entirely new position is created and then initially allocated within the classified service, no permanent appointment may be made to it except in accordance with the examination and certification procedures set forth by Section 15.1.
The present appointments were made (without examination or certification) to then non-existing positions, i. e., positions not included within the classifications of the civil-service system at the time of the appointments. For the reasons noted, these appointments did not confer upon these appointees any status to continue as permanent employees in these positions when, thereafter, the positions were formally created and allocated within the police civil service system.
Accordingly, the present appointments to these three new positions must be vacated. Permanent appointments to them may be made only upon certification after examination in accordance with the procedures provided by Section 15.1.
IV.
The defendants argue, however, that this court in In re Kelly, 224 La. 574, 70 So.2d 130 (1954), has interpreted Subsection 16 so as to permit the blanketing in, without examination or certification, of appointees who had previously received temporary appointments similar to the present. The language and reasoning of the decision is, indeed, supportive of the defendants’ contentions.
However, under the facts of that case, with regard to the new positions, even prior to the temporary appointments, “the services attendant to those positions were actually performed by various officers (the respondents herein)”, despite their formal classification in other categories. 224 La. 574, 70 So.2d 131. In upholding their blanketing in, we held, 70 So.2d 133: “The basis for the exceptions in the municipal fire and police civil service law is that an officer, who is satisfactorily performing the duties of a [pre-existing] position, which should be but is not yet [properly] classified, needs no examination to determine his qualifications for the job.”
In the present case, unlike Kelly, the appointee officers were “appointed” by the political authorities to entirely new positions, with broadened responsibility and' greater pay, than that which, prior to the appointments, they had been performing by virtue of their permanent appointment to a previously existing classification of the civil service system. Tr. 59-65. In the present case, we are concerned with creation of an entirely new supervisory position, not as in Kelly with only a proper classification or allocation of a permanent position performing the same services as now properly allocated.
Kelly may thus be distinguished insofar as applicable to the present ease. Argu
V.
The remaining arguments of some of the plaintiffs-relators deal with the alleged lack of proper notice before creation of the new classifications, and with the alleged lack of hearing given one of them (Lt. Templin). For the reasons assigned by the court of appeal, 327 So.2d 551, we find no merit to them.
Decree
Accordingly, we affirm the determination of the court of appeal that the three new positions were properly created; but we reverse its decree insofar as it held that the three officers temporarily filling these positions prior to their creation could continue to serve in them permanently without examination or certification as required by Article XIV, Section 15.1. These certifications or “allocations” by the defendant board are vacated, and the defendants are ordered to proceed with testing, certification, and permanent appointment of classified employees to these positions in accordance with law and consistent with the views expressed by this decision.
AFFIRMED IN PART; REVERSED IN PART.
. Subsection 16 provides in full:
“Status of Incumbent of Position When Allocated. Every person employed in the municipal fire and police services for a continuous period of at least six calendar months immediately preceding the date that this Section takes effect in the municipality, who was regularly and permanently appointed to a position coming under the classified service, shall be inducted into and bound under the classified service, the provisions of this Section, and the rules adopted hereunder.
“When any position is first allocated hereunder, or is reallocated to a different class to correct an error in its previous allocation, or because of a change in the duties of a position which has the effect of abolishing the position and creating a new position of another class, the employee in the position may continue to serve therein, with the status, and all the rights and privileges he would have had under this Section if he had been originally appointed by examination and certification hereunder to a position of the class to which the position has been allocated or reallocated. Such employee however may be transferred without further tests of fitness or certification to any position of the class to which the position was previously allocated while held by the employee.
“Any employee who feels himself aggrieved because of any allocation or change in classification affecting his position shall, upon his request, be heard thereon by the board; and the board shall hear and decide the complaint in any manner deemed proper.” (Italics ours.)
. These Subsections respectively provide:
“13. Classification plan. Each board, as soon as practicable (not to exceed a period of eighteen months) after this Section takes effect in the municipality, shall adopt a classification plan for the fire and police services of the municipality. Each classification plan shall consist of classes to be designated either by standard titles, ranks, or a combination thereof, for all positions included in the classified service for each of the fire and police services. The classification plan may be divided into groups of classes. The various classes of positions shall be arranged in each classification plan so as to show the principal and natural lines of promotion and demotion. The classification plan shall be adopted as rules of the board, in the manner provided by this Section for the adoption of rules. Rules creating the classification plan, future classifications, abolition of any classification, any amendment thereto, or revision thereof shall be adopted by a board only after consultation with the appointing authority, and the state examiner. The original classification plan to be established when this Section takes effect in a municipality shall be prepared, after consultation with the appointing authority, and submitted to the board for its approval and adoption, by the state examiner. The board may amend or revise the classification plans before adopting them. The state examiner shall advise and assist the board in all future classifications when requested to do so.
“14. Allocation of Positions to Classes. The board, or chairman thereof subject to the subsequent approval of the board, as soon as practicable (not exceeding forty-five days) after the adoption of a classification plan, after consultation with the appointing authorities concerned, shall allocate each position in the classified service to its appropriate class; and thereafter shall likewise allocate each new position created in the service, and, when for the benefit of the service, reallocate positions from class to class.
“Whenever the duties of a position are so changed by the appointing authority that the position in effect becomes one of a different class from that to which it is allocated, the change shall operate to abolish the position and to create a new position of the different class.
“Whenever the board finds any change in the duties of any position in the classified service was brought about by the appointing authority to effect a reduction in the classification of any employee because of political, religious, or discriminatory reasons, or without just cause, it shall refuse to recognize any such action, and shall order the appointing authority to continue the employee in the position and class with all rights and privileges.
“15. Use of Class Titles. The title of each class shall be the official title of every position*1318 allocated to the class, for all purposes having to do with the position as such, and shall be used to the exclusion of all other titles on all pay rolls, budget estimates, and official records and reports pertaining to the position, except that an abbreviation or code symbol by the board may be used to designate a position of a class. Any other title satisfactory to the appointing authority may be used in official correspondence and in any other connection not having to do with the personnel processes covered by this Section. No employee shall be appointed, employed, or paid under any title other than that of the class to which the position occupied by him is allocated.”
. Subsection 16: “ * * * When any position is first allocated hereunder [i. e., under Sections 13, 14, 15] * * *.”
. Subsection 16: “ * * * When any position . . . is reallocated to a different class to correct an error in its previous allocation, or because of a change in the duties of a position which has the effect of abolishing the position and creating a new position of another class
. Even under its facts, however, we think Kelly erred if it inferred that Subsection 16 might permit a promotion in rank and pay, without examination or certification, to a member of the classified service simply because in fact, during the course of his permanent appointment to a lesser position, he has performed duties later determined properly allocable to a higher classification.
Dissenting Opinion
(dissenting).
John L. Hoppe, John F. Templin and Shreveport Police Local Union No. 646, SEIU-NUPO, AFL-CIO, an unincorporated labor association of Shreveport, brought this suit against the City of Shreveport, Public Safety Commissioner George W. D’Artois and the Municipal Fire and Police Civil Service Board of Shreveport.
Insofar as pertinent here, the Municipal Fire and Police Civil Service Law, Section 15.1 of Article XIV of the Constitution of 1921, is part of the government of the City of Shreveport. The law provides a system of civil service for/municipalities with populations of 13,000 ti> 250,000. The constitutional provision in its entirety has been retained and continued in force and effect as statutes by Section 18 of Article X of the Constitution of 1974.
In their petition plaintiffs complain that during the first part of April 1972 Commissioner D’Artois promoted three police majors to Assistant Police Chief. Hoppe, the second senior major in the Police Department, was not included in these promotions. Until the creation of the classification of “assistant police chief” the rank of major was the highest in the classified service of the Shreveport Police Department. In addition to Hoppe’s opposition, the action was protested by plaintiff Templin on behalf of the Union. However, in September 1972 the Board initiated the procedure to create the classification of Assistant Police Chief. Notwithstanding these objections, the Board created the classification and proceeded to confirm the three officers who had been temporarily appointed by the Commissioner, thereby depriving Hoppe of the preference to appointment to which his seniority entitled him under the civil service law.
Plaintiffs asked for recission of the appointments of the officers confirmed by the Board and for an injunction to prevent implementation of these positions. At the same time, plaintiffs appealed to the district court for review of the actions taken and decisions rendered by the Board. The
Because of the growth of the police department, the city’s auditor recommended a broader base for carrying out the Commissioner’s responsibilities. Additional positions of Assistant Chief of Police under a new classification were suggested. Accordingly, in April 1972 the Commissioner temporarily appointed Majors McDowell, Lani-gan and Cash to positions of Assistant Chief because they were then performing the duties of that position and bearing the commensurate responsibility. At the same time, the Commissioner requested that the Board create the new classification of Assistant Chief of Police and asked that McDowell, Lanigan and Cash be confirmed into these positions. In the meantime, these officers received an increase in pay and the titles to those positions under the temporary appointments.
After the Commissioner’s request, on April 23, 1972 Templin wrote to the Board opposing the appointments and requested a hearing on the proposed classifications. His concern was that these appointments, made without regard to Hoppe’s seniority, deprived Hoppe of an appointment to which he was entitled. Templin also believed that these actions had an effect upon the status of all police officers. Moreover, he claimed the appointments were made contrary to the procedure prescribed by the civil service law. La.Const. art. XIV, § 15.1, para. 24(c).
Based upon the Commissioner’s request, the Board in Shreveport requested that the State Examiner in Baton Rouge prepare the classification specifications. These were received by the Board in Shreveport on April 27, 1972, and a Board meeting was called for the next week. A quorum of the Board could not be assembled, however, until June 7. The classification specifications were discussed in detail at that time. Delays in processing the Commissioner’s request were encountered, because board members had to be replaced by election. More delays were experienced because of a contest in the election, coupled with the fact that it was the concensus of the available Board members that the full membership should consider the request.
Finally, the full Board met on September 14, at which time Templin was present and was heard. At this meeting the classification specifications were adopted by the Board and posted the next day for thirty days with notice of a public hearing to be held on October 18, 1972. At the October 18 hearings alternate classifications were proposed by interested participants. These were taken under advisement by the Board. Temp-lin was again present and participated in this hearing. The hearing was adjourned, and the matter taken under advisement. The Board’s final meeting on the matter was held on November 3, 1972. At this meeting the Board announced that two classifications were adopted, one for Assistant Chief for Administration and one for Assistant Chief. McDowell, Lanigan and Cash were confirmed in these positions, McDowell and Lanigan as Assistant Chiefs and Cash as Assistant Chief for Administration. Templin was not notified of this last meeting and did not attend. The adopted classification was then given broad circulation among the police and included in the individual officers’ manuals.
Plaintiffs’ challenge to the action of the Board in allocating these three positions and confirming Majors McDowell, Lanigan and Cash, and the Board’s alleged failure to comply with the procedures prescribed in adopting those classifications is not well-founded.
I.
The central issue involves an interpretation of Section 15.1(16) of Article XIV of the Constitution of 1921, which reads:
“Every person employed in the municipal fire and police services for a continuous period of at least six calendar months immediately preceding the date that this Section takes effect in the municipality,*1322 who was regularly and permanently appointed to a position coming under the classified service, shall be inducted into and bound under the classified service, the provisions of this Section, and the rules adopted hereunder.
“When any position is first allocated hereunder, or is reallocated to a different class to correct an error in its previous allocation, or because of a change in the duties of a position which has the effect of abolishing the position and creating a new position of another class, the employee and [sic, in] the position may continue to serve therein, with the status and all the rights and privileges he would have had under this Section if he had been originally appointed by examination and certification hereunder to a position of the class to which the position has been allocated or reallocated. Such employee however may be transferred without further tests of fitness or certification to any position of the class to which the position was previously allocated while held by the employee.
“Any employee who feels himself aggrieved because of any allocation or change in classification affecting his position shall, upon his request, be heard thereon by the board; and the board shall hear and decide the complaint in any manner deemed proper.” (emphasis added).
The emphasized portion of the second paragraph quoted above provides that when any position is first allocated the employee in that position may continue to serve in that position, with the status and all the rights and privileges he would have had under the Municipal Fire and Police Civil Service Law if he had been originally appointed by examination or certification to a position of the class to which the position has been allocated or reallocated. This much is a plain statement of the rule governing this case. It remains to be determined whether the three appointees, McDowell, Lanigan and Cash, were, as the foregoing provision requires, “in the position” when the positions were “first allocated”.
The order in which the events occurred makes the first allocation effective November 3, 1972, the date the Board approved the classifications and confirmed the appointees in the positions of Assistant Chief for Administration and Assistant Chief.
The only evidence bearing upon the duties and responsibilities of McDowell, Lanigan and Cash, at the time of their appointment and subsequent confirmation when the positions were first allocated on November 3, 1972, is the testimony of the Commissioner. He said that Major McDowell had been in charge of Special Services for ten years preceding his appointment on April 15, 1972. A broad range of duties were assigned to him including custody and supervision of records, administrative duties connected with purchases, and other administrative duties concerning the Department of Public Safety, not limited to the Police Department. In that capacity he had authority to command uniformed policemen when needed for parades and other functions involving a large concentration of people. He was also assigned the task of overseeing personnel and police training.
Lanigan had, for many years, been regarded by the police and the public as the supervisor of all major investigations of crime. He was regarded as a very capable investigator and especially qualified in this field.
Cash, as Assistant Chief for Administration, had been assigned for a long time to those operations of the Department involving payroll records, purchases for the garage, jail and the general administrative requirements of fiscal control. The duties assigned to McDowell, Lanigan and Cash were of a specialized nature which other policemen were not qualified to perform. Plaintiff Hoppe, on the other hand, had never performed duties or been assigned responsibilities even remotely related to those of McDowell, Lanigan and Cash.
The Commissioner testified that the practice adopted in this case of temporary appointments and subsequent confirmation after Board approval and allocation of the positions was the same employed previously
After the classifications of the positions were approved by the Board, a new table of organization was established. Thereby the duties of the appointees were specifically set out, even though they continued to perform the duties they had performed prior to their confirmation. The table of organization detailing duties and responsibilities of the employees holding these positions was principally designed to make those duties and responsibilities official. While in some instances responsibilities of the appointees may have been broader under the new table of organization, the differences were inconsequential. After confirmation, they continued to discharge most of the duties and responsibilities assigned to them prior to their confirmation.
, On these facts the evidence preponderates that the appointees were “in the positions” when the positions were first allocated. As the trial judge found, “Those changes made in the duties actually performed were not actually new duties, but were by way of refinements in job descriptions of the classifications of the positions initially submitted, these refinements being made made after suggestions by the police officers attending the Board meetings.” The Court of Appeal agreed. On these findings, these appointees are entitled to serve as if they had been originally appointed by examination and certification. Hoppe cannot complain that he was denied seniority rights. Section 15.1(16) does not consider seniority relevant under these facts.
An identical situation was involved in In Re Kelly, 224 La. 574, 70 So.2d 130 (1954), where the Court interpreted La.Rev.Stat. 33:2486, which was later incorporated verbatim into the Constitution by an amendment in 1952, thereby becoming the provision considered in the instant case. In In Re Kelly the Court recognized the only issue on the merits to be whether the City of Monroe, as the appointing authority, and the Civil Service Board were vested with power to allocate and induct the respondents into positions which had not been theretofore allocated as part of the classification plan.
In deciding the question the Court held: “A careful consideration of the entire statute and the constitutional provisions respecting civil service satisfies us that the proposition advanced by relators is not well founded and that the Civil Service Board and the trial judge were correct in ruling that the respondents were entitled to hold the positions allocated to them in the classified service, despite the fact that they had not been originally appointed thereto by examination and certification.” 224 La. at 582, 70 So.2d at 133.
The decision recognized that the action of the City of Monroe and the Civil Service Board was “strictly within the letter of the law” because the statute declared in explicit terms that, when any position is initially allocated under the Act, the employee holding it may continue to serve with the same status as he would have if he had been originally appointed by examination and certification.
In addition, the Court in In Re Kelly was of the opinion that the action of the City and Board was within the “spirit of the law”. The lawmakers did not intend, the Court said, that initial allocation of positions under a police and fireman civil service system should be filled on a competitive basis when the duties of the position were already being performed by a member of the force.
The In Re Kelly decision is dispositive of the issue in the instant case.
II.
Plaintiffs claim that the temporary appointments made in April 1972 could not exceed ninety days, and for that reason they had expired prior to November 3, 1972 when the positions were allocated. For this reason, McDowell, Lanigan and Cash were not “in the positions” at the time they were allocated, because the Commissioner had not reappointed them at the expiration of
While these authorizations for temporary appointments do not specifically apply to the facts in this case, the appointments in question are implicitly authorized by Section 15.1(16) of Article XIV. If it were otherwise, employees in positions allocated for the first time could not be confirmed as the second paragraph of the quoted section plainly contemplates. It was with this understanding that the Court decided In Re Kelly. The critical fact permitting the application of Section 15.1(16) is that the employee be “in the position”. Whether the initial appointment is de facto or de jure is not determinative. The Section does not refer to any other status of the employee than that he be “in the position” when it is allocated.
III.
Plaintiffs urge that the administrative requirements were not met by the Board in adopting the new positions of assistant chiefs. This contention was made based on the fact that the ultimate decision of the Board did not create the positions exactly as proposed in the classification referred to in the notice posted thirty days before the public hearing.
The Board’s action was taken on the basis of the June 7 preliminary review of the classifications for the positions; on September 15 the classifications were again revised after hearing interested parties; as then drafted, the classifications were posted and the public notified of the October 18 hearing. Other proposals were again considered, and, finally, on November 3, with the accumulated data and proposals, the Board issued its ruling allocating the positions and confirming the three officers.
If the Board were not able to vary, even in the slightest, from the classifications referred to in the public notice preceding the October 18 hearing, there would be little purpose in a hearing for considering additional objections, facts or alternate proposals. Such was the object of the October 18 hearing. The revisions ultimately adopted were part of the decision-making process, and the resultant refinements were not such a departure from the posted classification that interested parties were prejudiced or deprived of an opportunity to be heard. The procedure adopted by the Board is authorized by Section 15.1(8) of Article XIV of the Constitution which provides that “A board may adopt any rule, either in its proposed or revised form, after holding a public hearing . . (emphasis added).
IV.
Officer Templin asserts that he was denied a hearing on his objections because he was not notified of the November 3 meeting of the Board when the decision was rendered. As the narrative of facts in the beginning of this opinion shows, Templin was notified and attended all Board meetings and was heard on each occasion. The November 3 meeting of the Board at which its decision was rendered did not require notice to the public or to Templin since hearings on the questions before the Board had previously been held.
For the reasons assigned, I cannot agree with the majority opinion or the result reached there.