Larry M. Bailey v. City of Lafayette

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 05-29
consolidated with CA 05-30,
CA 05-31, CA 05-32, and CA 05-33

LARRY M. BAILEY, ET AL.

VERSUS

CITY OF LAFAYETTE

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 99-1343 c/w NO. 99-1543,
NO. 99-1688, NO. 2000-0526, and NO. 2000-5288
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Glenn B. Gremillion, Billy H. Ezell, and James T. Genovese,
Judges.

AFFIRMED.

George J. Armbruster, III
Richard D. Chappuis, Jr.
1540 West Pinhook Road
Lafayette, Louisiana 70503
COUNSEL FOR APPELLANT:
City of Lafayette (Lafayette City-Parish Consolidated Government)

Lawrence C. Billeaud
321 West Main Street, Suite 1-B
Lafayette, Louisiana 70501
COUNSEL FOR PLAINTIFFS/APPELLEES:
Michael J. Rose, et al.

Daniel M. Landry, III
214 Jefferson Street, Suite 300
P.O. Box 3784
Lafayette, Louisiana 70502
COUNSEL FOR PLAINTIFFS/APPELLEES:
Larry M. Bailey, et al.

Charles R. Sonnier
Frank W. Summers, II
P.O. Drawer 700
Abbeville, Louisiana 70511-0700
COUNSEL FOR PLAINTIFFS/APPELLEES:
William J. Picard, et al.

Stephen H. Meyers
P.O. Box 51222
Lafayette, Louisiana 70505-1222
COUNSEL FOR PLAINTIFFS/APPELLEES:
Philip V. Burris, et al.

GENOVESE, Judge.

Defendant, City of Lafayette, now Lafayette City-Parish Consolidated

Government (“City”), appeals the judgment of the trial court granting Plaintiffs’

motion for partial summary judgment on the issue of liability ruling that the City had

violated Louisiana law by reducing its compensation to its police officers and

firefighters in proportion to its receipt of state supplemental pay. For the following

reasons, we affirm.

FACTS

Plaintiffs are police officers and firefighters for the City of Lafayette who filed

suit seeking a declaratory judgment and recovery of wages alleging that the City

improperly reduced their pay proportionate to its receipt of state supplemental pay in

violation of La.R.S. 33:2218.5 and 33:2205. The parties filed cross motions for

partial summary judgment to decide the issue of liability. The record indicates that

all pertinent facts were stipulated and the matter was submitted to the trial court for

decision. Hence, there was no genuine issue of material fact. The trial court granted

summary judgment in favor of the Plaintiffs and denied Defendant’s motion for

partial summary judgment. The trial court ruled that the City violated La.R.S.

33:2218.5 and La.R.S. 33:2005 relative to the pay of its police officers and

firefighters by reducing the portion the City contributes to each police

officer/firefighter by the amount each received in state supplemental pay. The trial

court rendered the salary reductions void and ordered the City “to restore to each

plaintiff an amount equal to all sums designated as state supplemental pay, from 3

years prior to filing the original suit in these consolidated cases, together with all

attendant retirement and fringe benefits, with legal interest on all wages as they

became due, until paid, and all costs of these proceedings.” The City filed a motion

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for reconsideration and, in the alternative, a motion for new trial, which were denied.

The City appeals.

LAW AND DISCUSSION

Appellate courts review summary judgments de novo using the same criteria

that govern the trial court’s consideration of whether summary judgment is

appropriate. Richard v. Hall, 03-1488 (La. 4/23/04), 874 So.2d 131; Goins v. Wal-

Mart Stores, Inc., 01-1136 (La. 11/28/01), 800 So.2d 783. The appellate court must

determine whether "the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine

issue as to material fact, and that mover is entitled to judgment as a matter of law."

La.Code Civ.P. art. 966(B). Despite the legislative mandate favoring summary

judgments found at La.Code Civ.P. art. 966(A)(2), "factual inferences reasonably

drawn from the evidence must be construed in favor of the party opposing the motion,

and all doubt must be resolved in the opponent's favor." Willis v. Medders, 00-2507,

p. 2 (La. 12/8/00), 775 So.2d 1049, 1050; Indep. Fire Ins. Co. v. Sunbeam Corp., 99-

2181, 99-2257 (La. 2/29/00), 755 So.2d 226. Due to the stipulation of facts by the

parties, there was no genuine issue of material fact and the trial court found that the

Plaintiffs were entitled to judgment as a matter of law. In a case where there are no

contested issues of fact, and the only issue is the application of the law to the

undisputed facts, as in the case at bar, the proper standard of review is whether or not

there has been legal error. Hatten v. Schwerman Trucking Co., 04-1005 (La.App. 3

Cir. 12/8/04), 889 So.2d 448, writ denied, 05-076 (La. 3/18/05), 896 So.2d 1009

(citing Cleland v. City of Lake Charles, 02-805 (La.App. 3 Cir. 3/5/03), 840 So.2d

686, writs denied, 03-1380, 03-1385 (La. 9/19/03), 853 So.2d 644, 645).

The essential facts of this case were established by the City’s admission of the

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main allegations in the Plaintiffs’ petition at the summary judgment hearing. At said

hearing, the following was stipulated:

MR. BILLEAUD: In an effort to resolve that expense and effort
on behalf of the City, but to put into the record the issues necessary for
resolution of this issue and for review on appeal, it is my understanding
that the City will stipulate that each member of the class, as an employee
of either the Fire Department or the City [Police] Department or the City
Marshall’s Office, when each employee began receiving State
supplemental, pay, that their corresponding city advance was reduced in
an equal amount to the State Supplemental which they began receiving.

MR. ARMBRUSTER: In accordance with the pay plan, that’s
correct . . . .

Louisiana Revised Statute 33:2218.5 provides, in pertinent part:

Any reduction of the salary of any police officer . . . shall be void
where it is made solely by reason of any additional compensation by the
state in this Subpart. Any appropriation made by the legislature which
results in a salary adjustment to the state supplemental pay program
under this Subpart shall not have the effect of reducing any base salary
or benefits paid by the local governing authority from other sources.

Louisiana Revised Statute 33:2005 prohibits the same practice with regard to

firefighters.

In Hayes v. City of Alexandria, 629 So.2d 435 (La.App. 3 Cir. 1993), this court

held that supplemental pay may not be used to reduce base pay. The Hayes decision

relied on an opinion by the Attorney General’s Office.

When asked whether a municipality can use the supplemental pay of
firemen and policemen to bring their salaries up to the base pay for other
city employees, the Attorney General's Office replied:

To the question of whether state supplemental pay
for fire and police personnel may be used as a substitute for
a portion of the employee's base pay, the answer is
negative. State law expressly forbids this practice by
municipalities. LSA-R.S. 33:2005 prohibits such use of
supplemental pay for firefighters; LSA-R.S. 33:2218.5
prohibits the same practice with regard to police officers.

The legislative intent for supplemental pay is to
provide additional, rather than substitute, compensation for
these public servants in order to enhance the excellence of

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the rank and file firefighters and policemen in municipal
service. It is intended to be a direct benefit to the public
servants themselves, rather than a means of fiscal relief for
the municipality.

Attorney General Opinion Number 90-574.

When asked to reconsider the same question, the Attorney
General's Office reiterated its original opinion and stated:

The substantive harm the statutes prohibit is the
reduction of base pay from the city by the inclusion of
supplemental pay. Supplemental pay is intended to be
exactly what its name says--supplemental, an additional
benefit for the firemen and policemen themselves.

Attorney General Opinion Number 90-574A.

Although the Attorney General's opinion is not binding, we agree
with its result and further find that it provides guidance in this case. The
plaintiffs have established to our satisfaction that they were entitled to
a starting salary of $3.35 an hour. Under La.R.S. 33:2002 and 2005, the
state may not reduce the firefighters' base pay solely because of the state
supplemental payments. The Attorney General's opinion provides an
example of how municipalities may not rely upon state supplemental
payments to meet its obligation to firefighters and policemen. We view
the City's continuation of the plaintiffs' base pay at $3.04/hour, after
actual payment to the plaintiffs of a higher rate of pay, to be a reduction
prohibited by La.R.S. 33:2005. For these reasons, we find the plaintiffs
are entitled to the relief prayed for.

Id. at 436-37 (footnotes omitted).

The City alleges in its assignment of error that the trial court erred as a matter

of law in ruling that the city ordinance violated state statutes. The City argues that

the trial court improperly applied the law to the facts of this case and effectively

disregarded the words “solely” and “base salary” as set forth in La.R.S. 33:2218.5 and

La.R.S. 33:2005. The City relies heavily on the words “solely” and “base salary”

contained in the applicable statutes and contends that the trial court disregarded those

words by relying on the “net effect” or “end result” of the City’s implementation of

the ordinance.

The language in both state statutes in question covering the police officers and

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firefighters is basically the same. In addition to considering the words “solely” and

“base salary,” there are other pertinent provisions of the statutes to be addressed. In

addition to prohibiting the reduction in “base salary,” the statutes also prohibit the

reduction or replacement of “benefits.” Both statutes prohibit “any reduction in

salary or benefits.” The City argues that reducing the “advance pay” of police

officers and firefighters upon receipt of state supplemental pay does not reduce their

“base pay” or “salary” and, therefore, is not in violation of the state statutes.

The City’s position in this case begs the question: Is “advance pay” to be

considered part of the salary or benefits of the police officers or firefighters? If yes,

then the reduction of advance pay violates the statute. If not, then what is “advance

pay”? If advance pay is not part of the salary, then it has to be considered a benefit.

The statutes likewise prohibit “reducing or replacing any base salary or benefits.”

Either way, regardless of whether it is called “advance pay” or some other term, the

ordinance circumvents the statutes and is in violation of state law. The statutes are

quite clear and unambiguous. These statutes prohibit the reduction of salary and/or

benefits by local governments at the expense of a state supplemental allowance. This

court is aware of the history of the ordinance and the equitable considerations of the

parties, but the law is the law, and a conflicting ordinance must yield to state statute.

We find no legal error in the trial court’s judgment finding the City to be in

violation of state law which prohibits the reduction of the base pay and/or benefits of

municipal employees.

CONCLUSION

For the above reasons, the judgment of the trial court granting the Plaintiffs’

motion for partial summary judgment and denying Defendant’s motion for partial

summary judgment on the issue of liability is affirmed. Costs of this appeal are

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assessed against the Defendant-Appellant, City of Lafayette (Lafayette City-Parish

Consolidated Government).

AFFIRMED.

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