Opinion Number
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Lead Opinion

Dear Mr. Durbin:

You have asked this office to determine whether a fireman employed on a part-time basis by the Board of Commissioners is legally required to be placed in the civil service system.

LSA-Const. Art. X, Section 16 (1974) provides for the establishment of a classified fire and police civil service system which is applicable "to all municipalities having a population exceeding thirteen thousand and operating a regularly paid fire and municipal police department and to all parishes and fire protection districts operating a regularly paid fire department."

You advise that the threshold requirement of LSA-Const. Art. X, Section 16 (1974) is met i.e., that the Fire Protection District No. 4 of Livingston Parish does operate a "regularly paid fire department" and that a civil service system has been established in which is enrolled five full-time dispatchers and one full-time secretary. You ask whether part-time firemen who are proposed to be hired by the governing board of the district should be considered as classified civil service employees.

Our answer is in the affirmative, if the position is allocated as a primary responsibility or duty one of those duties described in R.S. 33:2541(A) (1-9), providing:

2541. Classified and unclassified service

A. The classified service shall comprise every position, except those included in the unclassified service, to which the right of employee selection, appointment, supervision, and discharge is vested in the government of the municipality, parish or fire protection district as the case may be, under which the fire or police service functions, or in an officer or employee thereof, and which has as its primary duty and responsibility one of the following:

(Fire)

1. The chief and assistant chiefs; the intradepartmental division, bureau, squad, platoon and company officers of the fire and police department.

2. Fire fighting and police.

3. Fire prevention; inspection.

4. Driving, tillering and operation of fire apparatus.

5. Operation and maintenance of radio, fire alarm or signal system.

6. Fire and policy department instructors in employee training.

7. Fire salvage and overhauling services, and first aid.

8. Automotive or fire and police apparatus repairs, if such service is operated exclusively by and for the fire and police department.

9. Secretary to the chief and departmental records clerk.

In accord is Attorney General Opinion 98-267, a copy of which is attached for your review.

We assume from your correspondence that Heintz vs. City ofGretna, 683 So. 2d 926 (La.App. 5th Cir. 1996), writ den.683 So. 2d 926 (La. 1997) is inapplicable to your inquiry.1 We also forward to you Attorney General Opinions 95-37, 94-441 and 93-728(A), along with Opinion 98-267, for your further review.

Should you have any further questions, please contact this office.

Very truly yours,

RICHARD P. IEYOUB ATTORNEY GENERAL

BY: KERRY L. KILPATRICK ASSISTANT ATTORNEY GENERAL

KLK:ams Opinion 99-41

1 Of concern in Heintz was the predicate issue of whether the municipality operated a "regularly paid fire department", which we understand is not at issue in the current matter.

STATE OF LOUISIANA DEPARTMENT OF JUSTICE BATON ROUGE 70804-9005 P.O. Box 94005 RICHARD P. IEYOUB TEL.:(504) 342-7013 ATTORNEY GENERAL FAX.:(504) 342-7335
OPINION NUMBER 95-37
February 9, 1995
A fire Protection having three full-time paid firefighters must be placed in Civil Service.

R.S. 33:2543 Art. X, Sec. 16, La. Const. 47-A-1 Fire Protection District

Thomas O. Wells, Esq. Assistant District Attorney Ninth Judicial District P.O. Box Drawer 1472 Alexandria, LA 71309

This office is in receipt of your request for an opinion of the Attorney General on behalf of the Rapides Parish Police Jury in regard to firefighters in the Rapides Parish Fire Protection District # 3. You indicate there are three full-time firefighters in the Protection District and the Rapides Parish Police Jury asks if this constitutes a "regularly paid fire department" as used in Art. X, Sec. 16 of the Constitution so as to require that the firefighters be classified civil service employees.

As you recognize this office has previously rendered Attorney General Opinions relative to this subject for you state you have advised the Police Jury of Atty. Gen. Op. Nos. 94-122, 93-728 and 93-728 (A). This office in the more recent opinion Atty. Gen. Op. No. 94-441 reaffirmed Atty. Gen. Op. No. 93-728 and 782 (A) which had concluded by the use of the word "shall" in Art. X, Sec. 16 of the Constitution of 1974, a fire and police civil service system is mandatory for a "fire protection district operating a regularly paid fire department", and followed the interpretation of the State Examiner that where there is only one or two full-time firefighters there is a requirement for civil service. This was in accord with the conclusions of this office in Atty. Gen. Op. No. 93-354 that "a fire protection district operating a regularly paid fire department is required to created a classified fire and police civil service system."

In Atty. Gen. Op. No. 94-441 the question was presented whether the Iberia Parish Council or the Fire Protection District No. 1 had the authority to establish a civil service system for the employees of the fire district. This office relied upon R.S.33:2543 which provides that "each board shall adopt a classification plan for the fire and police service under its jurisdiction" and found the Board of the Fire Protection District having a "regularly paid fire department" is to establish Civil Service for the full-time paid firefighters. *Page 2 We hope this sufficiently answers your question, but if we can be of further assistance, do not hesitate to contact us.

Sincerely yours,

RICHARD P. IEYOUB Attorney General

By: BARBARA B. RUTLEDGE Assistant Attorney General

BBR

STATE OF LOUISIANA DEPARTMENT OF JUSTICE BATON ROUGE 70804-9005 P.O. Box 94005 RICHARD P. IEYOUB TEL.:(504) 342-7013 ATTORNEY GENERAL FAX.:(504) 342-7335
OPINION NUMBER 94-441
October 3, 1994
The Board of the Fire Protection District having a regularly paid fire department is to establish the Civil Service for the full-time firefighters.

R.S. 33:2543 Art. X, Sec. 16, La. Const. 47-A-1 — Fire Protection District

Ms. Diane B. Phillips Clerk of Council Iberia Parish Council Courthouse Bldg., Suite 410 300 Iberia Street New Iberia, LA 70560-4543





Addendum

Dear Ms. Phillips:

This office is in receipt of your request for an opinion of the Attorney General in regard to establishment of a civil service system for the employees of Fire Protection District No. 1. You indicate the Iberia Parish Fire Protection District No. 1 Board is currently in the process of proceeding with the establishment of a civil service system and board for its employees, and the Iberia Parish Council has adopted a resolution in opposition to the creation of this system. Since there is a jurisdictional question, you ask whether the Iberia Parish Council or the Fire Protection District No. 1 has the authority to establish a civil service system for the employees of said fire district.

In Atty. Gen. Opinion No. 93-728 (A) this office reconsidered Atty. Gen. Op. No. 93-728 and concluded by the use of the word "shall" in Art. X, Sec. 16 of the Constitution of 1974, a fire and police civil service system is mandatory for a "fire protection district operating a regularly paid fire department". it was further observed for the definition of a "regularly paid fire department" the conclusion of 93-728 was recalled which did not find paying one full-time fire fighter to augment and coordinate volunteers constituted operating "a regularly paid fire department". Instead, under the doctrine of contemporaneous construction, this office deferred to the interpretation of the State Examiner as to the requirement for civil service for a regularly paid fire department to include where there is only one or two full time employees. Atty. Gen. Op. No. 93-354 was affirmed that held "a fire protection district operating a regularly paid fire department is required to create a classified fire and police civil service system."

Subsequently, this office rendered Atty. Gen. Op. No. 94-122 in regard to the Iberia Parish Fire Protection District No. 1 and again stated the requirement for civil service for firefighters *Page 2 applies to a "regularly paid fire department", and concluded as follows:

Based upon an interpretation that any paid full-time firefighters constitutes a regularly paid fire department, it follows by the use of the word "shall" in Art. X, Sec. 16 La. Const., that it is mandatory there be the establishment of a fire and police civil service system by the employment of these four full-time firefighters.

R.S. 33:2543 provides that "each board shall adopt a classification plan for the fire and police service under itsjurisdiction." In accordance with the Sec. 21-2 of the Iberia Parish Code, the Fire Protection District No. 1 of Parish of Iberia was created and it "shall have all rights, powers and privileges granted by and conferred by the constitution and statutes of the State of Louisiana", and under Sec. 21-5, the Board of Commissioners is given the power to perform any function necessary for the management of its affairs with the control and management vested in a board of five members.

We must conclude the Board of a Fire Protection District having a "regularly paid fire department" is to establish Civil Service for the full-time paid firefighters.

We hope this sufficiently answers your questions, but if we can be if further assistance, do not hesitate to contact us.

Sincerely yours,

RICHARD P. IEYOUB Attorney General

By: BARBARA B. RUTLEDGE Assistant Attorney General

BBR

STATE OF LOUISIANA DEPARTMENT OF JUSTICE BATON ROUGE 70804-9005 P.O. Box 94005 RICHARD P. IEYOUB TEL.:(504) 342-7013 ATTORNEY GENERAL FAX.:(504) 342-7335
OPINION NUMBER 93-728 (A)

March 8, 1994
47-A-1 FIRE PROTECTION DISTRICTS 71-1-1 MUNICIPAL FIRE POLICE CIVIL SERVICE LSA-Const. Art. X, Sec. 16

Reconsidering opinion 93-728, we conclude that fire civil service is applicable to a paid firefighter in a volunteer fire department.

Mr. Paul K. Daly State Examiner P.O. Box 44366 Baton Rouge, LA 70804-4366





Addendum

Dear Mr. Daly:

As State Examiner of the Municipal Fire and Police Civil Service, you have asked this office to reconsider the conclusions of released opinions 93-728 and 93-354.

ISSUE I
In released opinion 93-728, the author addressed what constitutes a "regularly paid fire department" for purposes of application of a system of classified fire civil service. LSA-Const. Art. X, Section 16 (1974) requires that such a system be created for all municipalities, parishes, and fire protection districts operating a "regularly paid fire department".

There is no jurisprudential or statutory authority defining a "regularly paid fire department." In 93-728, the author concluded that a volunteer fire organization with one paid employee is not sufficient for the establishment of fire civil service.

We reconsider our conclusion in opinion 93-728, having reexamined the holding in the case of Village of Varnado v.Varnado Fire Dept. 563 So.2d 946 (La.App. 1990). In Varnado,supra, the court did not address the issue of whether one regularly paid employee was sufficient to constitute a regularly paid fire department for purposes of eligibility to receive tax proceeds. Rather, the court concluded that there was no regularly paid fire department because there were no regularly paidemployees during the time period in question. The case does not stand for the proposition that one regularly paid employee is insufficient to establish a regularly paid fire department for purposes of receipt of tax proceeds, nor for purposes of application of fire civil service. Mr. James M. Bullers *Page 2

Following this statement of the court, we do not find paying one full-time fire fighter to augment and coordinate the volunteer group constitutes operating "a regularly paid fire department." We believe the word "department" has to mean the operation as a whole, and two paid employees with fifty-two volunteers is not a regularly paid fire department.

We recognize that R.S. 33:2535 provides for the creation in the government of a municipality, parish, and in each fire protection district a classified civil service embracing the positions of employment of the fire services. R.S. 33:2541 states the classified service shall comprise every position to which the right of employee selection is vested in the government of the fire protection district, and R.S. 33:2533 defines "department service" as employment in the public service offered and performed by the fire department.

Reading the statutory provisions alone it would appear employment in any fire district would fall into civil service. However, we believe these statutory provisions have to be read in the light of the constitutional mandate for civil service for regularly paid fire departments. Herein we are dealing with employment by the Board of the South Bossier Volunteer Fire Department (Fire District 2), and not a regularly paid fire service. The constitutional provision is relative to civil service for regularly paid fire departments, and the wording of the constitution cannot be ignored. Therefore, we would conclude employment by the government of the fire protection district means, employment in regularly paid fire departments. To conclude to the contrary would mean a civil service system would have to be implemented for only one paid employee.

We find nothing that defines what a "regularly paid fire department" is, and recognize a question can arise as to how many paid employees would be required to remove a group from the category of a volunteer department to that of a regularly paid department so as to fall within the requirements of civil service. We do note in R.S. 40:1567 in regard to fees for fire reports, it provides the term volunteer fire department means a legally constituted fire department or fire protection district of fewer than four persons who are qualified for and receive state supplemental pay under R.S. 33:2001, et seq.

We do not believe it was the intent of the legislature in establishment of fire civil service as directed by the constitution that it extend to a volunteer fire organization with one paid employee. Mr. Paul K. Daly *Page 2

The doctrine of contemporaneous construction provides that when an administrative body has, over a long period of time, placed an interpretation upon a legislative enactment, that interpretation is entitled to great weight in the determination of the meaning of the legislative enactment. Swetman v.Teachers' Retirement System, 578 So.2d 149 (La.App. 1st Cir. 1991). However, when no ambiguity exists in the statute or the construction of the administrative body is clearly erroneous, this doctrine is inapplicable. Swetman, and citations therein.

This office is of the opinion that ambiguity is present because the definition of a "regularly paid fire department" is susceptible to varying interpretations. Further, the doctrine of contemporaneous construction is applicable as you advise your agency has for many years established "several boards which initially had only one or two full time employees". We therefore recall our conclusion in opinion 93-728, and defer to the interpretation of your agency concerning what may constitute a "regularly paid fire department", absent a juriprudential or statutory definition.

ISSUE II
Regarding released opinion 93-354, this office affirms the conclusions stated therein. The author correctly concluded that a fire protection district operating a regularly paid fire department is required to create a classified fire and police civil service system.

Use of the word "shall" in LSA-Const. Art. X, Section 16 (1974), cited above is mandatory concerning the establishment of a fare and police civil service system to a "fire protection district operating a regularly paid fire department". Further, opinion 93-354 as written is consistent with our reconsideration of 93-728, stated herein.

Please contact this office should you need further assistance.

Yours very truly,

RICHARD P. IEYOUB ATTORNEY GENERAL

BY: KERRY L. KILPATRICK Assistant Attorney General

RPI/KLK/93-728(A)

STATE OF LOUISIANA One American Place DEPARTMENT OF JUSTICE 301 Main Street, Suite 600 CIVIL DIVISION P.O. Box 94005 BATON ROUGE TEL.:(504)342-7013 70804-9005 FAX.:(504)342-2090

OPINION NUMBER 98-267
AUGUST 03, 1998
84 — Parishes LSA-R.S 33:2531; LSA-R.S. 33:2533; LSA-R.S. 33:2535; LSA-R.S.33:2536; LSA-R.S. 33:2541; LSA-R.S. 33:2451A(1-9)

A single full-time firefighter requires Plaquemine Parish to establish a separate firefighter civil service system.

Mr. Kevin Conner Council Attorney Plaquemines Parish Government P.O. Box 538 Belle Chasse, LA 70037





Addendum

Dear Mr. Conner:

This office is in receipt of your recent opinion request in regard to firefighters and civil service. Specifically, you ask the following three questions:

1. Does a single full-time firefighter have to be placed in the Civil Service System?

2. Does a part-time paid firefighter have to be placed in the Civil Service System?

3. Assuming that either question one or two is answered in the affirmative, can the Plaquemines Parish Government utilize its own Civil Service System and place the firefighter in a separate category underneath that system, or must an entirely new civil service system dedicated to firemen be established?

As you recognize this office has previously rendered opinions regarding this matter. Most recently, Atty. Gen. Op. No. 95-37, which cited Atty. Gen. Op. Nos. 94-441, 93-728, and 93-728 (A), concluded that a "regularly paid fire department" must be placed in the civil service system as required by Art. X, Sec. 16 of the Louisiana Constitution of 1974. These previous opinions, following the interpretation of the State Examiner, say that one full-time firefighter meets the requirement of a "regularly paid fire department" and therefore requires a civil service system.

In reviewing LSA-R.S. 33:2533, which defines terms used when referring to the fire and police civil service law, we find that there is no definition for part-time paid firefighters. LSA-R.S. 33:2531 mandates that any permanent appointment for a paid firefighter shall occur only after certification pursuant to the general system. This statute does not *Page 2 make a distinction between full-time and part-time firefighters. It simply refers to any permanent appointment. Therefore, it is our opinion that under this statute, a part-time paid firefighter should be placed in a civil service system as long as his appointment is permanent and he meets the test set out in LSA-R.S. 33:2541. This statute must be considered when determining whether an employee is classified or unclassified. In order to be classified, the employee must have as a primary duty one of the duties listed in LSA-R.S. 33:2541A(1-9). Therefore, if a part-time firefighter does not have one of the listed duties as his or her primary duty, then he or she should be unclassified.

In regard to your third question, LSA-R.S. 33:2535 and33:2536 mandate the creation of "The Fire and Police Civil Service" and the fire and police civil service board, respectively. LSA-R.S. 33:2535 creates a classified civil service system in each parish government. LSA-R.S. 33:2536 sets out the requirements for creating a fire and police service board. It is our opinion that Plaquemines Parish must create a civil service system for firefighters separate and apart from the government civil service system if it is operating a regularly paid fire department. This is consistent with Atty. Gen. Op. Nos. 93-728 (A) and 93-354.

In conclusion, it is the opinion of this office that (1) a single full-time firefighter must be placed in the civil service system; (2) a part-time paid firefighter should not be placed in a civil service system if he or she does not meet the "primary duty" test; and (3) Plaquemines Parish must create a separate civil service system for firefighters as long as it is operating a regularly paid fire department.

We hope this sufficiently answers your questions, but if we can be of further assistance, do not hesitate to contact us.

Yours very truly,

RICHARD P. IEYOUB ATTORNEY GENERAL

By: ROBERT B. BARBOR Assistant Attorney General

RPI:RBB:glb

OPINION NUMBER 99-41

June 22, 1999

R.S. 33:2541(A)(1-9)

Part-time firefighter must be placed in firefighter civil service system if he holds a position which has a primary duty or responsibility one of those duties statutorily provided by R.S.33:2541A(1-9).

Mr. James E. Durbin Livingston Parish Fire District 112 Hummell Avenue P. O. Box 608 Denham Springs, LA 70727-0608





Addendum

Dear Mr. Durbin:

You have asked this office to determine whether a fireman employed on a part-time basis by the Board of Commissioners is legally required to be placed in the civil service system.

LSA-Const. Art. X, Section 16 (1974) provides for the establishment of a classified fire and police civil service system which is applicable "to all municipalities having a population exceeding thirteen thousand and operating a regularly paid fire and municipal police department and to all parishes and fire protection districts operating a regularly paid fire department."

You advise that the threshold requirement of LSA-Const. Art. X, Section 16 (1974) is met i.e., that the Fire Protection District No. 4 of Livingston Parish does operate a "regularly paid fire department" and that a civil service system has been established in which is enrolled five full-time dispatchers and one full-time secretary. You ask whether part-time firemen who are proposed to be hired by the governing board of the district should be considered as classified civil service employees.

Our answer is in the affirmative, if the position is allocated as a primary responsibility or duty one of those duties described in R.S. 33:2541(A) (1-9), providing:

2541. Classified and unclassified service

A. The classified service shall comprise every position, except those included in the unclassified service, to which the right of employee selection, appointment, supervision, and discharge is vested in the government of the municipality, parish or fire protection district as the case may be, under which the fire or police service functions, or in an officer or employee thereof, and which has as its primary duty and responsibility one of the following:

(Fire)

1. The chief and assistant chiefs; the intradepartmental division, bureau, squad, platoon and company officers of the fire and police department.

2. Fire fighting and police.

3. Fire prevention; inspection.

4. Driving, tillering and operation of fire apparatus.

5. Operation and maintenance of radio, fire alarm or signal system.

6. Fire and policy department instructors in employee training.

7. Fire salvage and overhauling services, and first aid.

8. Automotive or fire and police apparatus repairs, if such service is operated exclusively by and for the fire and police department.

9. Secretary to the chief and departmental records clerk.

In accord is Attorney General Opinion 98-267, a copy of which is attached for your review.

We assume from your correspondence that Heintz vs. City ofGretna, 683 So.2d 926 (La.App. 5th Cir. 1996), writ den.683 So.2d 926 (La. 1997) is inapplicable to your inquiry.1 We also forward to you Attorney General Opinions 95-37, 94-441 and 93-728(A), along with Opinion 98-267, for your further review.

Should you have any further questions, please contact this office.

Very truly yours,

RICHARD P. IEYOUB ATTORNEY GENERAL

BY: KERRY L. KILPATRICK ASSISTANT ATTORNEY GENERAL

KLK:ams Opinion 99-41

1 Of concern in Heintz was the predicate issue of whether the municipality operated a "regularly paid fire department", which we understand is not at issue in the current matter.

STATE OF LOUISIANA DEPARTMENT OF JUSTICE BATON ROUGE 70804-9005 P.O. Box 94005 RICHARD P. IEYOUB TEL.:(504) 342-7013 ATTORNEY GENERAL FAX.:(504) 342-7335
OPINION NUMBER 95-37
February 9, 1995
A fire Protection having three full-time paid firefighters must be placed in Civil Service.

R.S. 33:2543 Art. X, Sec. 16, La. Const. 47-A-1 Fire Protection District

Thomas O. Wells, Esq. Assistant District Attorney Ninth Judicial District P.O. Box Drawer 1472 Alexandria, LA 71309

This office is in receipt of your request for an opinion of the Attorney General on behalf of the Rapides Parish Police Jury in regard to firefighters in the Rapides Parish Fire Protection District # 3. You indicate there are three full-time firefighters in the Protection District and the Rapides Parish Police Jury asks if this constitutes a "regularly paid fire department" as used in Art. X, Sec. 16 of the Constitution so as to require that the firefighters be classified civil service employees.

As you recognize this office has previously rendered Attorney General Opinions relative to this subject for you state you have advised the Police Jury of Atty. Gen. Op. Nos. 94-122, 93-728 and 93-728 (A). This office in the more recent opinion Atty. Gen. Op. No. 94-441 reaffirmed Atty. Gen. Op. No. 93-728 and 782 (A) which had concluded by the use of the word "shall" in Art. X, Sec. 16 of the Constitution of 1974, a fire and police civil service system is mandatory for a "fire protection district operating a regularly paid fire department", and followed the interpretation of the State Examiner that where there is only one or two full-time firefighters there is a requirement for civil service. This was in accord with the conclusions of this office in Atty. Gen. Op. No. 93-354 that "a fire protection district operating a regularly paid fire department is required to created a classified fire and police civil service system."

In Atty. Gen. Op. No. 94-441 the question was presented whether the Iberia Parish Council or the Fire Protection District No. 1 had the authority to establish a civil service system for the employees of the fire district. This office relied upon R.S.33:2543 which provides that "each board shall adopt a classification plan for the fire and police service under its jurisdiction" and found the Board of the Fire Protection District having a "regularly paid fire department" is to establish Civil Service for the full-time paid firefighters. *Page 2 We hope this sufficiently answers your question, but if we can be of further assistance, do not hesitate to contact us.

Sincerely yours,

RICHARD P. IEYOUB Attorney General

By: BARBARA B. RUTLEDGE Assistant Attorney General

BBR

STATE OF LOUISIANA DEPARTMENT OF JUSTICE BATON ROUGE 70804-9005 P.O. Box 94005 RICHARD P. IEYOUB TEL.:(504) 342-7013 ATTORNEY GENERAL FAX.:(504) 342-7335
OPINION NUMBER 94-441
October 3, 1994
The Board of the Fire Protection District having a regularly paid fire department is to establish the Civil Service for the full-time firefighters.

R.S. 33:2543 Art. X, Sec. 16, La. Const. 47-A-1 — Fire Protection District

Ms. Diane B. Phillips Clerk of Council Iberia Parish Council Courthouse Bldg., Suite 410 300 Iberia Street New Iberia, LA 70560-4543





Addendum

Dear Ms. Phillips:

This office is in receipt of your request for an opinion of the Attorney General in regard to establishment of a civil service system for the employees of Fire Protection District No. 1. You indicate the Iberia Parish Fire Protection District No. 1 Board is currently in the process of proceeding with the establishment of a civil service system and board for its employees, and the Iberia Parish Council has adopted a resolution in opposition to the creation of this system. Since there is a jurisdictional question, you ask whether the Iberia Parish Council or the Fire Protection District No. 1 has the authority to establish a civil service system for the employees of said fire district.

In Atty. Gen. Opinion No. 93-728 (A) this office reconsidered Atty. Gen. Op. No. 93-728 and concluded by the use of the word "shall" in Art. X, Sec. 16 of the Constitution of 1974, a fire and police civil service system is mandatory for a "fire protection district operating a regularly paid fire department". it was further observed for the definition of a "regularly paid fire department" the conclusion of 93-728 was recalled which did not find paying one full-time fire fighter to augment and coordinate volunteers constituted operating "a regularly paid fire department". Instead, under the doctrine of contemporaneous construction, this office deferred to the interpretation of the State Examiner as to the requirement for civil service for a regularly paid fire department to include where there is only one or two full time employees. Atty. Gen. Op. No. 93-354 was affirmed that held "a fire protection district operating a regularly paid fire department is required to create a classified fire and police civil service system."

Subsequently, this office rendered Atty. Gen. Op. No. 94-122 in regard to the Iberia Parish Fire Protection District No. 1 and again stated the requirement for civil service for firefighters *Page 2 applies to a "regularly paid fire department", and concluded as follows:

Based upon an interpretation that any paid full-time firefighters constitutes a regularly paid fire department, it follows by the use of the word "shall" in Art. X, Sec. 16 La. Const., that it is mandatory there be the establishment of a fire and police civil service system by the employment of these four full-time firefighters.

R.S. 33:2543 provides that "each board shall adopt a classification plan for the fire and police service under itsjurisdiction." In accordance with the Sec. 21-2 of the Iberia Parish Code, the Fire Protection District No. 1 of Parish of Iberia was created and it "shall have all rights, powers and privileges granted by and conferred by the constitution and statutes of the State of Louisiana", and under Sec. 21-5, the Board of Commissioners is given the power to perform any function necessary for the management of its affairs with the control and management vested in a board of five members.

We must conclude the Board of a Fire Protection District having a "regularly paid fire department" is to establish Civil Service for the full-time paid firefighters.

We hope this sufficiently answers your questions, but if we can be if further assistance, do not hesitate to contact us.

Sincerely yours,

RICHARD P. IEYOUB Attorney General

By: BARBARA B. RUTLEDGE Assistant Attorney General

BBR

STATE OF LOUISIANA DEPARTMENT OF JUSTICE BATON ROUGE 70804-9005 P.O. Box 94005 RICHARD P. IEYOUB TEL.:(504) 342-7013 ATTORNEY GENERAL FAX.:(504) 342-7335
OPINION 93-728 (A)
March 8, 1994
47-A-1 FIRE PROTECTION DISTRICTS 71-1-1 MUNICIPAL FIRE POLICE CIVIL SERVICE LSA-Const. Art. X, Sec. 16

Reconsidering opinion 93-728, we conclude that fire civil service is applicable to a paid firefighter in a volunteer fire department.

Mr. Paul K. Daly State Examiner P.O. Box 44366 Baton Rouge, LA 70804-4366





Addendum

Dear Mr. Daly:

As State Examiner of the Municipal Fire and Police Civil Service, you have asked this office to reconsider the conclusions of released opinions 93-728 and 93-354.

ISSUE I
In released opinion 93-728, the author addressed what constitutes a "regularly paid fire department" for purposes of application of a system of classified fire civil service. LSA-Const. Art. X, Section 16 (1974) requires that such a system be created for all municipalities, parishes, and fire protection districts operating a "regularly paid fire department".

There is no jurisprudential or statutory authority defining a "regularly paid fire department." In 93-728, the author concluded that a volunteer fire organization with one paid employee is not sufficient for the establishment of fire civil service.

We reconsider our conclusion in opinion 93-728, having reexamined the holding in the case of Village of Varnado v.Varnado Fire Dept. 563 So.2d 946 (La.App. 1990). In Varnado,supra, the court did not address the issue of whether one regularly paid employee was sufficient to constitute a regularly paid fire department for purposes of eligibility to receive tax proceeds. Rather, the court concluded that there was no regularly paid fire department because there were no regularly paidemployees during the time period in question. The case does not stand for the proposition that one regularly paid employee is insufficient to establish a regularly paid fire department for purposes of receipt of tax proceeds, nor for purposes of application of fire civil service. Mr. James M. Bullers *Page 2

Following this statement of the court, we do not find paying one full-time fire fighter to augment and coordinate the volunteer group constitutes operating "a regularly paid fire department." We believe the word "department" has to mean the operation as a whole, and two paid employees with fifty-two volunteers is not a regularly paid fire department.

We recognize that R.S. 33:2535 provides for the creation in the government of a municipality, parish, and in each fire protection district a classified civil service embracing the positions of employment of the fire services. R.S. 33:2541 states the classified service shall comprise every position to which the right of employee selection is vested in the government of the fire protection district, and R.S. 33:2533 defines "department service" as employment in the public service offered and performed by the fire department.

Reading the statutory provisions alone it would appear employment in any fire district would fall into civil service. However, we believe these statutory provisions have to be read in the light of the constitutional mandate for civil service for regularly paid fire departments. Herein we are dealing with employment by the Board of the South Bossier Volunteer Fire Department (Fire District 2), and not a regularly paid fire service. The constitutional provision is relative to civil service for regularly paid fire departments, and the wording of the constitution cannot be ignored. Therefore, we would conclude employment by the government of the fire protection district means, employment in regularly paid fire departments. To conclude to the contrary would mean a civil service system would have to be implemented for only one paid employee.

We find nothing that defines what a "regularly paid fire department" is, and recognize a question can arise as to how many paid employees would be required to remove a group from the category of a volunteer department to that of a regularly paid department so as to fall within the requirements of civil service. We do note in R.S. 40:1567 in regard to fees for fire reports, it provides the term volunteer fire department means a legally constituted fire department or fire protection district of fewer than four persons who are qualified for and receive state supplemental pay under R.S. 33:2001, et seq.

We do not believe it was the intent of the legislature in establishment of fire civil service as directed by the constitution that it extend to a volunteer fire organization with one paid employee. Mr. Paul K. Daly *Page 2

The doctrine of contemporaneous construction provides that when an administrative body has, over a long period of time, placed an interpretation upon a legislative enactment, that interpretation is entitled to great weight in the determination of the meaning of the legislative enactment. Swetman v.Teachers' Retirement System, 578 So.2d 149 (La.App. 1st Cir. 1991). However, when no ambiguity exists in the statute or the construction of the administrative body is clearly erroneous, this doctrine is inapplicable. Swetman, and citations therein.

This office is of the opinion that ambiguity is present because the definition of a "regularly paid fire department" is susceptible to varying interpretations. Further, the doctrine of contemporaneous construction is applicable as you advise your agency has for many years established "several boards which initially had only one or two full time employees". We therefore recall our conclusion in opinion 93-728, and defer to the interpretation of your agency concerning what may constitute a "regularly paid fire department", absent a juriprudential or statutory definition.

ISSUE II
Regarding released opinion 93-354, this office affirms the conclusions stated therein. The author correctly concluded that a fire protection district operating a regularly paid fire department is required to create a classified fire and police civil service system.

Use of the word "shall" in LSA-Const. Art. X, Section 16 (1974), cited above is mandatory concerning the establishment of a fare and police civil service system to a "fire protection district operating a regularly paid fire department". Further, opinion 93-354 as written is consistent with our reconsideration of 93-728, stated herein.

Please contact this office should you need further assistance.

Yours very truly,

RICHARD P. IEYOUB ATTORNEY GENERAL

BY: KERRY L. KILPATRICK Assistant Attorney General

RPI/KLK/93-728(A)

STATE OF LOUISIANA One American Place DEPARTMENT OF JUSTICE 301 Main Street, Suite 600 CIVIL DIVISION P.O. Box 94005 BATON ROUGE TEL.:(504)342-7013 70804-9005 FAX.:(504)342-2090

OPINION NUMBER 98-267
AUGUST 03, 1998
84 — Parishes LSA-R.S 33:2531; LSA-R.S. 33:2533; LSA-R.S. 33:2535; LSA-R.S.33:2536; LSA-R.S. 33:2541; LSA-R.S. 33:2451A(1-9)

A single full-time firefighter requires Plaquemine Parish to establish a separate firefighter civil service system.

Mr. Kevin Conner Council Attorney Plaquemines Parish Government P.O. Box 538 Belle Chasse, LA 70037





Addendum

Dear Mr. Conner:

This office is in receipt of your recent opinion request in regard to firefighters and civil service. Specifically, you ask the following three questions:

1. Does a single full-time firefighter have to be placed in the Civil Service System?

2. Does a part-time paid firefighter have to be placed in the Civil Service System?

3. Assuming that either question one or two is answered in the affirmative, can the Plaquemines Parish Government utilize its own Civil Service System and place the firefighter in a separate category underneath that system, or must an entirely new civil service system dedicated to firemen be established?

As you recognize this office has previously rendered opinions regarding this matter. Most recently, Atty. Gen. Op. No. 95-37, which cited Atty. Gen. Op. Nos. 94-441, 93-728, and 93-728 (A), concluded that a "regularly paid fire department" must be placed in the civil service system as required by Art. X, Sec. 16 of the Louisiana Constitution of 1974. These previous opinions, following the interpretation of the State Examiner, say that one full-time firefighter meets the requirement of a "regularly paid fire department" and therefore requires a civil service system.

In reviewing LSA-R.S. 33:2533, which defines terms used when referring to the fire and police civil service law, we find that there is no definition for part-time paid firefighters. LSA-R.S. 33:2531 mandates that any permanent appointment for a paid firefighter shall occur only after certification pursuant to the general system. This statute does not *Page 2 make a distinction between full-time and part-time firefighters. It simply refers to any permanent appointment. Therefore, it is our opinion that under this statute, a part-time paid firefighter should be placed in a civil service system as long as his appointment is permanent and he meets the test set out in LSA-R.S. 33:2541. This statute must be considered when determining whether an employee is classified or unclassified. In order to be classified, the employee must have as a primary duty one of the duties listed in LSA-R.S. 33:2541A(1-9). Therefore, if a part-time firefighter does not have one of the listed duties as his or her primary duty, then he or she should be unclassified.

In regard to your third question, LSA-R.S. 33:2535 and33:2536 mandate the creation of "The Fire and Police Civil Service" and the fire and police civil service board, respectively. LSA-R.S. 33:2535 creates a classified civil service system in each parish government. LSA-R.S. 33:2536 sets out the requirements for creating a fire and police service board. It is our opinion that Plaquemines Parish must create a civil service system for firefighters separate and apart from the government civil service system if it is operating a regularly paid fire department. This is consistent with Atty. Gen. Op. Nos. 93-728 (A) and 93-354.

In conclusion, it is the opinion of this office that (1) a single full-time firefighter must be placed in the civil service system; (2) a part-time paid firefighter should not be placed in a civil service system if he or she does not meet the "primary duty" test; and (3) Plaquemines Parish must create a separate civil service system for firefighters as long as it is operating a regularly paid fire department.

We hope this sufficiently answers your questions, but if we can be of further assistance, do not hesitate to contact us.

Yours very truly,

RICHARD P. IEYOUB ATTORNEY GENERAL

By: ROBERT B. BARBOR Assistant Attorney General

RPI:RBB:glb