Jan Aillet and Marilyn Doucet v. Lafayette Parish School Board

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-585

JAN AILLET AND MARILYN DOUCET

VERSUS

LAFAYETTE PARISH SCHOOL BOARD

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20125668
HONORABLE DURWOOD WAYNE CONQUE, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

**********

Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and John E. Conery,
Judges.

AFFIRMED.

Jon Keith Guice
Linda Kay Ewbank
Hammonds, Sills, Adkins, & Guice, L.L.P.
1881 Hudson Circle
Monroe, LA 71201
(318) 324-0101
COUNSEL FOR DEFENDANT/APPELLANT:
Lafayette Parish School Board

Andrew J. Halverson
Milling Benson Woodward, L.L.P.
P. O. Box 51327
Lafayette, LA 70505-1327
(337) 232-3929
COUNSEL FOR PLAINTIFFS/ APPELLEES:
Jan Aillet
Marilyn Doucet

GREMILLION, Judge.

In this teachers’ salary and back-pay dispute, the Lafayette Parish School

Board (LPSB) appeals the grant of the Motion for Summary Judgment filed by the

plaintiffs/appellees, Jan Aillet and Marilyn Doucet. For the reasons that follow, we

affirm.

FACTS

The facts of this matter are not disputed. The school board chartered Charter

High School (Charter). Charter was a school that held session from 2:00 to 9:00

p.m. and catered to extremely at-risk students, many with children, some homeless.

In 2006, Mrs. Aillet began working at Charter half-time as a librarian, except

during summers, when she worked at Charter full-time. She continued to work

there half-time until 2010, when she began working there full-time following the

closure of the other school at which she worked half-time. Her compensation at

Charter was based upon a 244-day school year for which she was paid $328.29 per

day.

Mrs. Doucet moved to the Lafayette Parish School System in 2005 after

many years teaching English in the Avoyelles Parish Schools. She began at

Charter upon moving to the Lafayette System. Her compensation was based upon

a 244-day school year as well, earning $298.08 per day.

Charter, though, was closed by the school board in 2012. The faculty and

staff were informed of this change in meetings with school board personnel. Mrs.

Aillet was reassigned from Charter to Lafayette High School (LHS). Her

compensation there was based upon a 182-day school year at $330.85 per day.

Mrs. Doucet, who was reassigned to N.P. Moss Preparatory, began being

compensated on the same basis at $308.30 per day. Both filed suit against the

school board and asked for back pay and reinstatement of their 2011 salaries.

Both sides of the dispute filed motions for summary judgment. Both

motions relied upon the same three exhibits: the depositions of Mrs. Aillet and Mrs.

Doucet and the affidavit of Mr. Bruce Leininger, the LPSB Director of Human

Resources. The trial court heard argument in this matter and ruled in favor of Mrs.

Aillet and Mrs. Doucet. LPSB was ordered to reinstate their 2011-2012 salaries

and pay back-pay retroactive to the beginning of the 2012-3013 school year.

LPSB assigns the following as errors:

A. The district court erred by finding that Appellant’s actions
were a violation of Louisiana Tenure Law (and Louisiana Revised
Statutes 17:418) thereby entitling [Appellees] to pay for months not
worked.

B. The district court erred by rendering a judgment, the effect
of which violates the Article 7, Section 14 of the Louisiana
Constitution's prohibition against the donation of public funds.

DISCUSSION

Because this matter comes before us on summary judgment, we will briefly

review the standards we, as an appellate court, are to employ:

Courts of appeal review summary judgments de novo applying the
same analysis as the trial court. Schroeder v. Bd. of Supervisors of La.
State Univ., 591 So.2d 342 (La.1991). Summary judgment is governed
by La.Code Civ.P. arts. 966 and 967. Article 966 provides that while
the burden of proving entitlement to summary judgment rests with the
mover, if the mover will not bear the burden of proof at trial on the
matter that is before the court on the motion for summary judgment,
the mover's burden does not require him to negate all essential
elements of the adverse party's claim, action or defense, but rather to
point out that there is an absence of factual support for one or more
elements essential to the adverse party's claim, action or defense.
Thereafter, if the adverse party fails to produce factual support
sufficient to establish that he will be able to satisfy his evidentiary
burden of proof at trial, there is no genuine issue of material fact.
Hardy v. Bowie, 98–2821 (La.9/8/99), 744 So.2d 606.

2

Berard v. Home State County Mut. Ins. Co., 11-1372, p. 2 (La.App. 3 Cir. 5/9/12),

89 So.3d 470, 471-72.

The laws governing teacher tenure are found in Title 17 of the Louisiana

Revised Statutes. Mrs. Aillet and Mrs. Doucet maintain that the school board

violated La.R.S. 17:418(C)(1)1 by reducing their salaries. LPSB maintains that the

salaries are subject to reduction by virtue of La.R.S. 17:444.2

Louisiana Revised Statute 17:418(C)(1) provides:

C. (1) The amount of the annual salary paid to a teacher or other
school employee in any school year shall not be reduced below the
amount of such salary paid during the previous school year, nor shall
the amount of the annual salary paid to such school personnel be
reduced at any time during an academic year.

Thus, according to the appellees’ argument, their salaries could not be reduced

from their salaries in 2011.

Louisiana Revised Statute 17:444 provides, in pertinent part:

B. (1) Whenever a teacher who has acquired tenure, as set forth
in R.S. 17:442, in a local public school system or the special school
district is promoted by the superintendent by moving such teacher
from a position of lower salary to one of higher salary, such teacher
shall not be eligible to earn tenure in the position to which he is
promoted, but shall retain any tenure acquired as a teacher, pursuant
to R.S. 17:442.
LPSB argues that the pay of the appellees can be reduced because they had

acquired tenure at lower salaries and are therefore not eligible for tenure at the

higher-salaried positions.

This situation poses a serious conflict between two statutes. “Words and

phrases shall be read in context and shall be construed according to the common

and approved usage of the language.” La.R.S. 1:3. “Laws on the same subject

1
Added by 2012 Louisiana Acts No. 1, effective July 1, 2012.
2
Amended by 2012 Louisiana Acts No. 1, effective July 1, 2012.

3

matter must be interpreted in reference to each other.” La.Civ.Code art. 13. When

possible, laws that conflict should be construed together to harmonize them.

Killeen v. Jenkins, 98-2675 (La. 11/5/99), 752 So.2d 146. We are also mindful of

the principle that a statute that specifically covers a subject take precedence over

one that generally applies. Delahoussaye v. Thibodeaux, 498 So.2d 1137 (La.App.

3 Cir. 1986), writ denied, 501 So.2d 236 (La.1987).

LPSB cites two cases for the court to consider. In Kemp v. Jefferson Parish

School Board, 305 So.2d 744 (La.App. 4 Cir. 1974), writ denied, 309 So.2d 346

(La.1975), the school board reduced the salaries and working hours of several

principals and assistant principals. The plaintiffs, who had been adversely affected

by this reduction and the concomitant reductions in salary, sought reinstatement.

The fourth circuit held, based on its earlier ruling in Mouras v. Jefferson Parish

School Board, 300 So.2d 540 (La.App. 4 Cir.), writ denied, 302 So.2d 619 (La.

1974), that this action did not violate the teachers’ tenure laws.

The problem with Kemp and Mouras is that those cases relied on earlier

versions of both the teachers’ salary law and teachers’ tenure law. The statutes

governing teacher pay, which had formerly been scattered among several sections

of Title 17, was amended by 2012 Louisiana Acts No. 1, effective July 1, 2012,

after the appellees’ causes of action arose, and redesignated them as La.R.S.

17:418. The act also comprehensively restructured the concept of teachers’ tenure.

Particularly in the context of teacher pay, the Mouras decision no longer comports

with the statutory law applicable to this case, as it was based on two statutory

provisions, La.R.S. 17:81 and La.R.S. 17:421. Section 81 provides for the general

powers of local public school boards, including the right to hire teachers by the

month or by the year and to fix their salaries. La.R.S. 17:81(A)(2). This provision

4

was not changed by the 2012 act. Section 421 enacted a minimum salary schedule

for teachers. That provision has been repealed and replaced with La.R.S.

17:418(A)(1), which places the onus of establishing a minimum salary schedule on

the individual school board.

The fourth circuit reasoned, by virtue of these two provisions, that the

reduction of the plaintiffs’ salaries was not inconsistent with the tenure laws. It

went on to say, in dicta:

The tenure law might protect an individual teacher from board action
which reduced only that one teacher's pay, since such individual
action could be an unwarranted disciplining. That, however, is not our
case: here the entire categories of principals and assistant principals in
high and middle schools have been reduced. (There is no suggestion
that the board reduced all as a means of disciplining only one.)

Mouras, 300 So.2d at 541.

However, La.R.S. 17:418(C)(1), as we have previously pointed out and as

Mrs. Aillet and Mrs. Doucet have argued, provides that a teacher’s salary cannot

be reduced below her previous year’s, subject to certain exceptions. According to

Section 418(C)(3):

The limitations on the reduction in the amount of the annual
salary paid to teachers and other school employees shall not be
applicable to:

(a)The correction of any accounting errors or to a reduction
necessitated by the elimination of a state program or state funding.

(b) The reduction of any local salary supplement funded, in
whole or in part, from a revenue source requiring voter approval when
such voter approval has not been obtained.

(c) A teacher or other school employee who has been promoted
to a position of higher salary is demoted in accordance with applicable
law and local board or special school district policy to a lower
position. In such case, the teacher or other school employee shall
return to the salary previously received in the lower position from
which he was promoted.

5

LPSB’s argument rings hollow in Mrs. Doucet’s case, as her only position in

the system—until the closure of Charter, that is—was a twelve-month post at

Charter. Accordingly, her employment at Charter was not a promotion from a

lower-paying position to a higher-paying one.

Also in play in this matter, though, is La.R.S. 17:444, entitled “Promotions

to and employment into positions of higher salary and tenure.” This statute

governs the relationship between the school system and employees, like Mrs. Aillet,

who are promoted from lower-paying positions to higher-paying positions.

Teachers who are so promoted cannot acquire tenure in the higher-paying position.

However, the statute balances that ineligibility with certain safeguards. Such a

promotion is subject to a contract term of not less than two years. La.R.S.

17:444(B)(4)(a)(i). Further, the school board and the teacher may enter into

subsequent contracts, and the statute mandates that “[n]ot less than one hundred

and twenty days prior to the termination of such a contract, the superintendent shall

notify the employee of termination of employment under such contract, or in lieu

thereof the board and the employer [sic.] may negotiate and enter into a contract

for subsequent employment.” La.R.S. 17:444(B)(4)(c)(i). No such notice was

given to Mrs. Aillet, who was promoted from a lower-paying position to a higher

one. Additionally, this court has previously held that a teacher so promoted,

according to the dictates of Section 444(B)(4)(a)(i) is entitled to a renewal of her

contracts for not less than two years, entitling her to mandamus relief should the

school board choose to renew her contract for a shorter term. See Julian-Robinson

v. Lafayette Parish School Bd., 11-712 (La.App. 3 Cir. 11/2/11), 76 So.3d 656,

writ denied, 11-2643 (La. 2/10/12), 80 So.3d 479. Section 444 is intended to

6

protect teachers from exactly the sort of actions taken by the LPSB in this case.

Accordingly, we find no merit in this assignment of error.

The board also argues that the trial court’s order violates the Louisiana

Constitution, Article VII, Section 14, which reads:

Section 14. (A) Prohibited Uses. Except as otherwise provided by
this constitution, the funds, credit, property, or things of value of the
state or of any political subdivision shall not be loaned, pledged, or
donated to or for any person, association, or corporation, public or
private. Except as otherwise provided in this Section, neither the state
nor a political subdivision shall subscribe to or purchase the stock of a
corporation or association or for any private enterprise.

The purpose of this provision is to end the old practice of the legislature to pledge

state credit to aid private enterprise, and “to protect the electorate from the

possibility that a politically powerful individual or interest could importune the

legislature or other governmental entity into making a donation of assets of the

State.” In re Members of Class of Descendants of Former Owners of Cheniere

Ronqillo, 01-1548, p. 4 (La.App. 4 Cir. 4/24/02), 817 So.2d 324, 327, writ denied,

02-1448 (La. 9/20/02), 825 So.2d 1170, and writ denied, 02-1454 (La. 9/20/02),

825 So.2d 1171; Caldwell Bros. v. Bd. of Sup’rs of La. State Univ. and Agric. and

Mech. Coll., 176 La. 825, 147 So. 5 (1933).

The school board cites for authority the case of Varnado v. Hospital Serv.

Dist. No. 1 of the Parish of Assumption, State of Louisiana, 98-468 (La.App. 1 Cir.

4/1/99), 730 So.2d 1066. In Varnado, Assumption General Hospital entered into a

contract with the plaintiff for services as a psychiatric nursing consultant and as

hospital administrator, for which he was to be compensated at $76,000.00 per year

plus thirteen percent of total revenues generated in excess of the revenue receipts.

The Hospital Service District, which took over the operation of the hospital,

7

terminated plaintiff’s employment. Plaintiff sued for recovery of the thirteen-

percent bonus. The court of appeal held that this:

was not based upon the services provided only by plaintiff, but the
increased revenues were based upon the performance of other
individuals in the entire hospital. In addition, this compensation was
for the normal duties plaintiff's salary contractually required him to
complete; no extra duties beyond his regular duties were required.
Therefore, the revenue-enhancement compensation was a bonus
payment, which is specifically prohibited under Constitution article
VII, section 14(A).

Id. at 1068.

LPSB also cites Louisiana Attorney General opinions that opined that pay to

school board employees for work not actually performed and to bus drivers for

miles they did not actually drive violated the state constitution. See La. Atty. Gen.

Op. Nos. 05-0448 and 39-1994. Thus, to compensate the plaintiffs on a twelve-

month basis for nine months’ work is prohibited by Louisiana Constitution Art.

VII, § 14.

We reject LPSB’s interpretation of Art. VII, § 14. Taken to its logical

extreme, such an interpretation would invalidate La.R.S. 17:444 in its entirety.

This argument stands wholly upon the board’s definition of the appellees’

compensation being based upon nine months’ work. Conversely, if the argument

is framed in terms of the appellees’ salary, as specified in La.R.S. 17:444, or

“annual salary” as specified in La.R.S. 17:418, the board’s argument that appellees

failed to earn their contractually-agreed salaries falls. No question has been raised

about appellees having performed at any level less than LPSB demanded under

their contracts.

This assignment of error is without merit.

8

Lafayette Parish School Board’s assignments of error are rejected. The

judgment of the trial court is affirmed. All costs of this appeal, in the amount of

$842.64, are taxed to defendant/appellant, Lafayette Parish School Board.

AFFIRMED.

9