Joseph Aguillard v. City of Lake Charles

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

07-189

JOSEPH AGUILLARD, ET AL.

VERSUS

CITY OF LAKE CHARLES

***************
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, DOCKET NO. 2003-5689
HONORABLE ROBERT L. WYATT

***************
SYLVIA R. COOKS
JUDGE
***************

Court composed of Sylvia R. Cooks, Glenn B. Gremillion, and James T. Genovese,
Judges.

Genovese, J., dissents and assigns written reasons.

AFFIRMED.

Michael K. Cox
Cox, Cox, Filo, Camel & Wilson
723 Broad Street
Lake Charles, Louisiana 70601
(337) 436-6611
COUNSEL FOR PLAINTIFFS/APPELLEES:
Joseph Aguillard, et al.

Lawrence C. Billeaud
706 West University Avenue
Lafayette, Louisiana 70506
(337) 266-2055
COUNSEL FOR PLAINTIFFS/APPELLEES:
Joseph Aguillard, et al.

H. Alston Johnson III
Suite 701, City Plaza
445 North Blvd.
Baton Rouge, Louisiana 70802
(225) 346-0285
COUNSEL FOR DEFENDANT/APPELLANT:
City of Lake Charles

Gregory W. Belfour
Post Office Box 1930
1135 Lakeshore Drive, 6th Floor
Lake Charles, Louisiana 70602
(337) 439-8315
COUNSEL FOR DEFENDANT/APPELLANT:
City of Lake Charles

COOKS, Judge.

STATEMENT OF THE CASE

The City of Lake Charles (City) appeals the judgment of the trial court granting

the firefighters’ motion for partial summary judgment on the issue of liability, finding

the City violated La.R.S. 33:2005 by reducing their compensation once they began

receiving state supplemental pay. For the reasons assigned below, we affirm the

decision of the trial court.

STATEMENT OF THE FACTS

The Plaintiffs are firefighters currently and formerly employed by the City of

Lake Charles and are members of the Lake Charles Firefighters Association Local

561, AFL-CIO (Union). The City entered into a collective bargaining agreement with

the firefighters’ Union, the relevant portion of which is contained in Section E of

Article XVI, Wages, and provides as follows:

In addition to the minimum monthly salary now paid by the City of Lake
Charles to Firemen of the Lake Charles Fire Department, covered by this
contract, the City of Lake Charles agrees to pay a Fireman, after the first
full month of employment, a separate monthly payment of ONE
HUNDRED SIXTY FIVE AND NO/100 (165.00) DOLLARS per month
(or whatever the beginning level of State Supplemental pay shall be) for
the period of time the employee receives State Supplemental salary
under the provisions of LSA-RS 33:2002, at which time this payment
shall be terminated. The City of Lake Charles will pay ONE
HUNDRED SIXTY FIVE AND NO/100 $165.00 DOLLARS per month
(or whatever the beginning level of State Supplemental pay shall be) for
any month after the first full month of employment for which the
employee does not receive State Supplemental pay. The parties hereto
agree that the purpose of this section is to encourage employees to seek
employment with the Lake Charles Fire Department and to remain with
the Lake Charles Fire Department. The parties agree that the Union and
all employees which it represents, are estopped from claiming additional
compensation under the provisions of LSA-RS 33:1992, because of the
payment by the City under this section. The parties to this agreement
understand and agree that the Union shall join with the City in resisting
any action filed by any employee or former employee of the Lake
Charles Fire Department claiming additional compensation under the
provisions of LSA-RS 33:1992 because of payment by the City under
this section, and that the Union shall bear its own share of attorney fees

1

and expenses incurred in defending any such suit, and shall take all legal
and reasonable steps to discourage action and defeat any such suit, and
knows of no threatened or contemplated action against the City or the
Union in that regard. The parties to this agreement understand if any
action is filed by an employee, or former employee, of the Lake Charles
Fire Department, payments by the City of Lake Charles hereunder shall
terminate immediately, but shall be reinstated if the suit is dismissed, or
if the courts rule in favor of the City of Lake Charles.

Article XXI, Severance Provisions provide, in relevant part:

Should any provisions of this agreement be found to be in
violation of any Statutory or Constitutional provision, State or Federal
or City Charter, by a court of competent jurisdiction, all other provisions
of this agreement shall remain in full force and effect for the duration of
this agreement.

The Plaintiffs’ petition contends “[e]ach and every time a fire fighter receives

and/or received an increase in state supplemental pay, defendant decreased and

continues to decrease that fire fighter’s base pay by a corresponding amount.” The

firefighters assert this decrease in salary and benefits by the City violates La.R.S.

33:2005, which provides in relevant part:

Any reduction of the salary of any employee covered by this
Subpart, which is in effect on July 1, 1979, whether by the governing
authority or by any pay plan under the provisions of any civil service
law, or otherwise, shall be void where it is made solely by reason of the
additional compensation by the state, provided for 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 or replacing any base salary or
benefits paid by the local governing authority from other revenue
sources.

A similar issue was recently addressed by this court in Bailey v. City of

Lafayette, 05-29 (La.App. 3 Cir. 6/1/05), 904 So.2d 922, 924, writs denied, 05-1054,

1690, 1691, 1692 (La. 1/9/06), 918 So.2d 1054, 1055. In Bailey, police officers and

firefighters asserted the City of Lafayette violated 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

2

pay.” Id. at 923. The trial court granted summary judgment in favor of the

firefighters and this court affirmed finding the advance pay given to firefighters was

part of a benefit package and any reduction by the City solely because of state

supplemental pay was clearly prohibited. This court held La.R.S. 33:2005 “is

intended to be a direct benefit to the public servants themselves, rather than a means

of fiscal relief for the municipality.”Id. at 924, quoting Atty. Gen. Opin. No. 90-574.

In the present case, the City of Lake Charles paid its firefighters a minimum

monthly salary. After the first full month of employment, the City paid to each

firefighter an additional sum equal to the extra compensation required to be paid by

the State under La.R.S. 33:2002. The purpose of this payment, as stated in the

collective bargaining agreement, is “to encourage employees to seek employment

with the Lake Charles Fire Department and to remain with the Lake Charles Fire

Department.” The contract further provided once the firefighter began receiving state

supplemental pay, the separate monthly payment by the City was terminated. We find

this extra compensation is clearly a benefit to the firefighter within the contemplation

of the statute and discontinuing this benefit upon receipt of state supplemental pay

“where it is made solely by reason of the additional compensation by the state” is

clearly a violation of the statute and is in direct conflict with our ruling in Bailey.

La.R.S. 33:2005; See also Hayes v. City of Alexandria, 629 So.2d 435 (La.App. 3 Cir.

1993).

However, unlike Bailey, in the present case, the Union signed a collective

bargaining agreement with the City on behalf of the firefighters. In the agreement the

City enticed individuals into employment by offering an additional amount above

their base pay, something other municipalities with more limited funds may not be

able to do. The City then withdrew the benefit once the state supplemental pay

3

began. Although this actions was in direct violation of the statute, the City relies on

the collective bargaining agreement with the Union and asserts the contract prevents

the firefighters from claiming a violation under the statute and from seeking relief.

The issue presented for our review is whether the City and the Union can agree to a

reduction in benefits in direct conflict with a state statute. We find they cannot.

Louisiana Revised Statutes 33:2002, which provides state supplemental pay for

fireman, and La.R.S. 33:2005, which prohibits the municipality from reducing its

financial obligation to firefighters based on the State supplemental pay, were enacted

as public policy statutes. The establishment of minimum wage standards, working

conditions, and benefits for firefighters is not left to the discretion of each individual

municipality, but is within the “plenary power of the legislature” under the State

constitution. New Orleans Firefighters Association v. Civil Service Commission, 442

So.2d 402, 409 (La.1982). The State has a “compelling state interest” in establishing

a minimum standards for firefighters and police officers and ensuring that those

standards are met by municipalities. Id. Legislative oversight is necessary to

guarantee that all Louisiana citizens, regardless of their geographic location, will be

provided with effective police and fire protection. “If the lawmaking branch were

restricted either by geographical limitation or the policy of other agencies in

considering socioeconomic data and formulating fair labor standards, it would be

impossible for it to establish a minimum wage or a standard working condition

pursuant to its own conception of state policy.” Id. at 407. The public purpose

behind the enactment of these provisions would be defeated if municipalities were

allowed to contractually avoid their responsibility under statutes. La.Civ. Code art.

7; Becht v. Morgan Building & Spas, Inc., 01-1091 (La.App. 1 Cir. 6/2/02), 822 So.2d

56, affirmed, 02-2047 (La. 4/23/03), 843 So.2d 1109, cert. denied, 540 U.S. 878, 124

4

S.Ct. 289 (2003). We find, at the time the collective bargaining agreement between

the City and the Union was entered, La.R.S. 33:2005 prohibited the parties from

contractually agreeing to reduce a firefighters’ monthly payment by the amount

advanced by the City in anticipation of the State supplemental pay. We note the

legislature recently amended La.R.S. 33:2002 to allow municipalities to reduce the

wages of firefighters after the first year, provided this reduction is disclosed in

writing at the time the employee is hired. However, this provision provides a

substantive change in the law and cannot be applied retroactively.

The City contends if it is determined that a portion of the agreement is in

contravention of the statute, the entire agreement should be voided. If we were to

nullify the wage agreement and return the parties to the status quo, the City will

accomplish indirectly what the law prohibits it from doing directly, that is,

negotiating a salary with benefits at a stated amount and then eventually nullifying

it to claim an offset. Moreover, the collective bargaining agreement signed by the

City also contains a Severance clause which provides in the event any provisions of

the agreement are found to be in violation of a statute “all other provisions of this

agreement shall remain in full force and effect for the duration of this agreement.”

DECREE

Based on the foregoing review of the record, we affirm the decision of the trial

court granting the partial summary judgment. All costs of this appeal are assessed to

the City of Lake Charles.

AFFIRMED.

5

6

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

07-189

JOSEPH AGUILLARD, ET AL.

VERSUS

CITY OF LAKE CHARLES

GENOVESE, J., dissents and assigns the following reasons.

In order for this court to render an opinion relative to a violation, vel non, of

La.R.S. 33:2005, there must be evidence in the record as to “base salary or benefits”

of the firefighters. There is none. This case is not ripe for summary judgment. My

dissent is based solely on the evidentiary posture of this case. We cannot address the

key issue of whether the City of Lake Charles’s reduction of firefighter pay

proportionate to its receipt of state supplemental pay violated La.R.S. 33:2005

without evidence in the record of the base pay and benefits afforded Plaintiffs. This

case differs from Bailey v. City of Lafayette, 05-29 (La.App. 3 Cir. 6/1/05), 904 So.2d

922, writ denied, 05-1690 (La. 1/9/09), 918 So.2d 1054, in that regard and in other

aspects. Therefore, genuine issues of material fact remain, and this court cannot rule,

as a matter of law, that Plaintiffs are entitled to summary judgment. Therefore, I

dissent on evidentiary grounds and would reverse the trial court’s grant of summary

judgment in favor of the Plaintiffs.