Cheryl Lavergne v. Rapides Parish Police Jury

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
15-654

CHERYL LAVERGNE

VERSUS

RAPIDES PARISH POLICE JURY

**********
APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 249,665
HONORABLE GREGORY BEARD, DISTRICT JUDGE
**********
JIMMIE C. PETERS
JUDGE
**********
Court composed of Sylvia R. Cooks, Jimmie C. Peters, and Marc T. Amy, Judges.

AFFIRMED.

George C. Gaiennie, III
Gaiennie Law Firm, L.L.C.
1920 Jackson Street
Alexandria, LA 71301
(318) 767-1114
COUNSEL FOR PLAINTIFF/APPELLANT:
Cheryl Lavergne

Chris J. Roy, Sr.
Chris J. Roy, Sr. Law Office, L.L.C.
1920 Jackson Street
Alexandria, LA 71301
(318) 767-1114
COUNSEL FOR PLAINTIFF/APPELLANT:
Cheryl Lavergne

Daniel E. Broussard, Jr.
Broussard, Halcomb & Vizzier
P. O. Box 1311
Alexandria, LA 71309
(318) 487-4589
COUNSEL FOR DEFENDANT/APPELLEE:
Rapides Parish Police Jury

Phillip Terrell
District Attorney
Steven P. Mansour
Assistant District Attorney
Ninth Judicial District
P. O. Box 13557
Alexandria, LA 71315
(318) 442-4855
COUNSEL FOR DEFENDANT/APPELLEE:
Rapides Parish Civil Service Board

PETERS, J.
The plaintiff, Cheryl Lavergne, seeks review of the district court judgment

dismissing her appeal from the Rapides Parish Civil Service Board’s decision to

uphold the termination of her employment by the Rapides Parish Police Jury. For

the following reasons, we affirm the trial court judgment in all respects.

DISCUSSION OF THE RECORD

The undisputed facts with regard to the matter now before this court are that

after an October 18, 2013 hearing, the Rapides Parish Police Jury (Police Jury)

terminated Ms. Lavergne’s employment with it effective October 23, 2013. It is

also undisputed that Ms. Lavergne was a classified employee of the Police Jury

and subject to the protection of the Rapides Parish Civil Service Rules. Pursuant to

those rules, Ms. Lavergne appealed the termination of her employment to the

Rapides Parish Civil Service Board (Board), and following a February 20, 2014
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hearing, the Board voted unanimously to uphold the Police Jury’s termination.

On March 17, 2014, Ms. Lavergne filed a petition in the Ninth Judicial
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District Court, naming the Police Jury as a defendant and seeking a judgment

reinstating her as a Police Jury employee retroactive to the date of termination and

ordering the Police Jury to pay her back wages and benefits for the time between

the termination of her employment and her reinstatement. In her petition, Ms.

Lavergne traced the history of the termination process in her case and asserted that

her discharge as a Police Jury employee was (1) without cause; (2) as a result of

her exercise of her rights against self-incrimination; (3) as a result of events that

1
As the record contains no evidence of the action of the Police Jury or the Board, all
factual assertions in this opinion are based on the pleadings and briefs which are a part of the
record before us.
2
The geographical area of the Ninth Judicial District is Rapides Parish, Louisiana.

had no connection to her employment; (4) in violation of the Police Jury’s

personnel policy; and (5) in violation of the Rapides Parish Civil Service Rules.

On April 8, 2014, the Police Jury filed an answer to Ms. Lavergne’s petition

wherein it asserted additional background relative to the facts and procedure

involving Ms. Lavergne’s employment termination; asserted that the decision of

the Board in upholding the action of the Police Jury “was not manifestly erroneous,

arbitrary or capricious and was supported by the evidence adduced at the

hearing[,]” and prayed for the dismissal of her petition. On April 10, 2014, the

Police Jury amended its answer to add more factual background.

Sometime in the summer of 2014, Ms. Lavergne, through her trial counsel,

scheduled six depositions for August 27, 2014. The Police Jury responded on
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August 15, 2014, by filing a motion to strike three of the six depositions and for a

protective order to prevent Ms. Lavergne from taking those depositions in the
4
future. Apparently, all of the noticed depositions were continued from August 27,

2014, because on September 4, 2014, the Board, not the Police Jury, filed a motion

to strike the other three depositions as well as a request for a protective order to

prevent Ms. Lavergne from attempting to take these three depositions in the
5
future. A hearing on both motions was scheduled for October 13, 2014.

3
The three individuals at issue were Joe Bishop, President of the Police Jury; Donna
Andries, Tax Administrator of the Rapides Parish Sales and Use Tax Department; and Joe
Aguillard, former President of Louisiana College in Pineville, Rapides Parish, Louisiana.
4
The Police Jury also raised an issue concerning the propriety of one of Ms. Lavergne’s
attorneys representing her interest. That issue was again raised at oral argument before this
court, but because of the complete lack of an evidentiary record, it cannot be considered.
5
The three individuals at issue in this filing were Ingrid Johnson, Dr. Michael Shamblin
and Linda Sanders. Ms. Johnson and Dr. Shamblin were identified as members of the Board,
and Ms. Sanders was identified as the Rapides Parish Civil Service Director. The attorney
representation issue was also raised in the motion filed by the Board.

2

On September 19, 2014, the Police Jury filed a motion to dismiss Ms.

Lavergne’s action pending before the district court based on her failure to comply

with the applicable provisions of the Rapides Parish Civil Service Rules in

attempting to perfect her appeal of the Board’s decision. Specifically, the Police

Jury asserted that Ms. Lavergne failed to comply with Rule 4.16(a) of the Rapides

Parish Civil Service Rules, in that she did not timely serve the Board with a written

notice of appeal containing the information required by Rule 4.16(a). The Police

Jury attached the affidavit of Linda Sanders, the Rapides Parish Civil Service

Director, attesting to the fact that the Board did not receive the notice required by

Rule 4.16(a). The district court set that motion for October 13, 2014, as well.

On September 22, 2014, Ms. Lavergne amended her petition to join the

Board as an additional defendant and to assert that the Board was “unlawfully

constituted and appointed through the legal fault of Rapides Parish Police Jury” at

the time it rendered the decision in favor of the Police Jury. Specifically, she

asserted that two of the four members of the Board who presided in her case were

not properly appointed. After the filing of the amended petition, the district court

continued the October 13, 2014 hearing at the request of Ms. Lavergne and without

opposition from the Police Jury. At the request of the Police Jury, the district court

reset the hearing for December 1, 2014. The motions were later reset for February

2, 2015.

The Board answered the amendment to the original petition on October 24,

2014. Its answer took the form of a general denial of the allegations of the

amended petition. The Police Jury filed its answer to the amendment to the

original petition on November 5, 2014. In its answer, the Police Jury asserted that

Ms. Lavergne voluntarily participated in the Board hearing, that she did not raise a

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question concerning the legal status of the Board members during the hearing, and

that she could not now raise these issues for the first time before the district court.

The record before us does not contain a transcript of the February 2, 2015

hearing on the motions. The district court minutes of that day state that:

As to the motion to dismiss appeal-matter was taken under
advisement; and as to the motion to strike deposition and quash
subpoena-matter is now moot. A ruling on the issue of a protective
order by defendants was deferred until a ruling on the motion to
dismiss appeal.

On February 25, 2015, the district court recorded its oral reasons for judgment in

the district court minutes of that day. In its reasons, the district court cited the

constitutional and statutory authority for the Board’s existence and authority;

found Rule 4.16(a) to be applicable to Ms. Lavergne’s legal action; found that she

had not complied with Rule 4.16(a); and rendered judgment dismissing her appeal

to the district court. However, in the process of setting fourth its oral reasons, the

district court also referred to the constitutional provisions relative to civil service

systems established directly by constitutional authority and without the necessity

of statutory or local government implementation, as is the case with the Police Jury

in Rapides Parish.

The district court signed a written judgment dismissing Ms. Lavergne’s

appeal on March 18, 2015, and Ms. Lavergne responded by filing a motion for new

trial on March 31, 2015. After an April 27, 2015 hearing, the district court rejected

the motion for new trial. The record does contain a transcript of that hearing.

In her argument to the district court on the motion for new trial, Ms.

Lavergne asserted that the Board had no authority to enact Rule 4.16 pursuant to

the authority set forth in La.R.S. 33:2452(B)(3)(e), and that the Board’s authority

to enact rules affecting the process does not extend past its authority to hold a

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hearing. To allow the Board such authority, she argued, would improperly divest

the district court of its appellate jurisdiction and would deny her due process rights

and access to the courts guaranteed by La.Const. art. 1, §§ 19 and 22. On the other

hand, Ms. Lavergne acknowledged that had the legislation which created the

Rapides Parish Civil System provided for the same notice requirement as does

Rule 4.16, her due process rights would have been satisfied, and her claim would

have no merit.

On May 4, 2015, the district court signed a judgment rejecting the motion

for new trial. Thereafter, Ms. Lavergne perfected this appeal. She also sought

supervisory writs from this court based on the denial of her motion for new trial.

However, this court denied her application for supervisory writs based on a finding

that she had an adequate remedy through her appeal. Lavergne v. Rapides Parish

Police Jury, 15-496 (La.App. 3 Cir. 6/29/15) (unpublished opinion).

On appeal, Ms. Lavergne argues that the district court erred in dismissing

her appeal and in denying her motion for new trial.

OPINION

In Louisiana, a civil service system can be created either directly by the

Louisiana Constitution or by statute or local ordinance pursuant to constitutional

authority. Not only does La.Const. art. 10 create and establish the rules for

operating the state civil service system and all systems in cities with a population
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exceeding 400,000, but it also provides for the establishment and operation of

systems within parishes and smaller cities. Louisiana Constitution Article 10, § 14

provides a process by local option election for the creation of a civil service system

in cities with populations exceeding 10,000 but less than 400,000, in parishes, and
6
These civil service systems had already been established in some form by La.Const. art.
14, § 14 of the 1921 Constitution.

5

in city-parish governing units with a population greater than 10,000. When

created, these civil service systems are governed by the same provisions of

La.Const. art. 10 which govern the state-wide and larger city systems. La.Const.

art. 10, § 14(B). Additionally, La.Const. art. 10, § 15 provides, in pertinent part,

that:

Nothing in this Part shall prevent the establishment by the
legislature, or by the respective parish governing authority, of a parish
civil service system in one or more parishes . . . or the establishment
by the legislature or by the respective municipal governing authority
of a municipal civil service system in one or more municipalities
having a population of less than four hundred thousand, in any manner
[7]
now or hereafter provided by law.

The Rapides Parish Civil Service System is one of those systems established

by the legislature pursuant to La.Const. art. 10, § 15. This was accomplished by
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1993 La. Acts No. 387, § 1; and the provisions of the system are embodied in

La.R.S. 33:2451-2454. Under this legislative mandate, the Police Jury bears the

responsibility for the appointment and dismissal of all parish employees covered

by the system. La.R.S. 33:2451(C). Additionally, the legislation creates a civil

service department, with a director as its administrative head and a five-member

board as the “policymaking and quasi judicial” body. La.R.S. 33:2452(A)(1).

Among the director’s initial duties was the drafting of the rules under which the

civil service department would operate. La.R.S. 33:2452(B)(3). These rules were

to include, among other things, “[t]he procedure for layoffs[,] suspension,

demotion, and dismissal of employees, which shall provide for public hearings

before the personnel board in cases of demotion or dismissal of permanent

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Excluded from membership in these civil service systems were parish teachers,
professional staffs, and school administrative officers; paid firemen and police officers in cities
exceeding 13,000 in population with paid fire and police departments; and paid firemen in all
parish and fire protection districts. La.Const. art. 10, § 15.
8
A second act, 1993 La. Acts No. 135, § 1, containing almost identical language was also
passed by the legislature and approved by the governor.
6

employees.” La.R.S. 33:2452(B)(3)(e). It is not disputed that at the time of Ms.

Lavergne’s dismissal from her employment with the Police Jury, the Board had

approved and implemented its operating rules and that they were considered to

“have the full force of law.” La.R.S. 33:2452(B)(3) (emphasis added).

Among the statutory duties of the Board is to “[h]old hearings on dismissals,

demotions, and other disciplinary matters as may be provided in the rules.”

La.R.S. 33:2453(2). Additionally, “[t]he right to appeal from any decision of the

board or from any action taken by the board under these provisions shall lie direct

to the court of original and unlimited jurisdiction in the civil suits for the parish of

Rapides.” Id. Furthermore, La.R.S. 33:2453(6) provides a catch-all clause relative

to its duties by asserting that the Board shall “[p]erform such other policymaking

or quasi judicial duties as may be required under the rules developed pursuant to

this Section.”

As previously stated, the rule at issue in this litigation is Rule 4.16, and

particularly Rule 4.16(a). The complete rule reads as follows:

Any classified employee and any appointing authority shall
have the right to appeal from any decision of the Board, or from
action taken by the Board under the provisions of Act 387 which is
prejudiced to said employee or appointing authority. This appeal shall
lie direct to the court of original and unlimited jurisdiction in the civil
suits for the parish of Rapides. The procedure for appealing a ruling
of the Board to the 9th Judicial District Court is as follows:

a. The party wishing to appeal the board’s decision shall
proceed by filing a petition with the 9th Judicial District Court seeking
a review of the decision of the Board and stating the reasons in
support thereof. Such appeal shall be taken by serving the Board
within thirty (30) days after entry of its decision, a written notice of
appeal, stating the grounds thereof and demanding that a certified
transcript of the record, if any, or written findings of facts, and all
papers on file in the office of the Board affecting or relating to such
decision be filed with the designated court. The Board shall, within
thirty (30) days after filing of such notice of appeal, make, certify and
file such complete transcript or written findings of facts with the
designated court.

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b. The party appealing the ruling, whether such a party is the
employee or the Appointing Authority, shall appear as the plaintiff in
the petitions, and the other party shall be named as defendant. The
defendant shall be served with the appeal petition and citation as
required by law.

c. The Board shall not be a party to any appeal, and if it is
named as a party in the appeal, it shall be summarily dismissed upon
motion of the employee, the Appointing Authority, or the court on its
own motion.

d. After a petition for review of the Board’s ruling has been
filed, any party to the action may request that the record of the
proceedings be filed with the Court. All requests shall be made in
writing to the Director and shall include the caption and docket
number of the suit. Within 30 days after receipt of the written request,
the Director shall forward a certified copy of all documents on file
with the Board to the Court. The Director shall notify all parties of
the filing of the record.

e. The Court shall be limited in its review of the findings of the
Board to the testimony, documents, and exhibits placed into evidence
at the hearing before the Board, as well as the written findings of the
Board. The Court shall not permit the introduction of new evidence
on appeal of the Board’s findings.

f. The Court’s ruling on appeal shall be limited to a
determination of whether the Board’s ruling was in error in light of
the documents, testimony, and other evidence presented and
considered by the Board. The Board’s findings shall not be
overturned on appeal unless deemed by the Court to be manifestly
erroneous and/or contrary to law.

g. The Board shall have no legal interest in the outcome of an
appeal. The Board shall have no duty or responsibility to support or
defend its decision and ruling on appeal.

Turning to the record before us, we must note that much of its content is not

helpful to the evaluation of the issue before us. At no point did Ms. Lavergne state

in her petition that she was seeking review of the Board’s decision. In its answer,

the Police Jury also failed to assert the limited review status of the matter. Instead,

it answered the petition as if it was an ordinary process. This, standing alone,

would have been of little consequence but for the fact that subsequent to the initial

pleadings being filed, Ms. Lavergne joined the Board as a party defendant in the

8

proceeding, and Ms. Lavergne has attempted to structure the proceeding to require

an evidentiary hearing on the issues raised.

The matter before the district court is an appeal of the decision of the Board.

That being the case, the district court sits as a court of appeal and not as a court of

first resort. Judicial review does not allow for the consideration of evidence not

introduced in the forum under review. Fisher v. Dep’t. of Soc. Servs., Office of

Cmty. Servs., 600 So.2d 1368 (La.App. 1 Cir. 1992).

Given the scope of review provided the district court as well as this court,

we decline to consider the pleadings filed subsequent to the original petition that

attempt to expand on the sole issue before us—whether the district court erred in

dismissing Ms. Lavergne’s appeal for failure to give the appropriate notice to the

Board as required by Rule 4.16(a).

The fact that Ms. Lavergne did not comply with Rule 4.16(a) is undisputed.

The Board rendered its decision on February 20, 2014, and Ms. Lavergne filed her

petition for appeal on March 17, 2014. Although she filed her petition within the

thirty-day window provided by Rule 4.16(a), she neither served the Board with a

written notice of appeal, nor demanded that the Board prepare the appropriate

record to be submitted to the district court. Absent this notice, the Board had no

obligation to prepare a record for the district court’s review.

In her brief on appeal, Ms. Lavergne asserts that the Board received notice

by virtue of being named as a defendant in her supplemental and amending

petition, and that no other notice is required because no statute other than La.R.S.

33:2453(2) addresses the appeal process for the Police Jury. As previously stated,

that statute merely states that “[t]he right to appeal from any decision of the board

or from any action taken by the board under these provisions shall lie direct to the

9

court of original and unlimited jurisdiction in the civil suits for the parish of

Rapides.” She asserts that the Board has no authority to adopt any rules

supplementing the requirements of La.R.S. 33:2453(2), and she complied with that

statute by filing her suit in the Ninth Judicial District Court in Rapides Parish.

While we agree that La.R.S. 33:2453(2) is silent as to any appeal

requirement other than filing in the Ninth Judicial District Court in Rapides Parish,

we do not agree that the language thereof should be construed to preclude the use

of other authority in setting the parameters for filing an appeal of the Board’s

decision. In making this argument, Ms. Lavergne ignores the enabling language of

La.R.S. 33:2452(B)(3), which gives the civil service director the authority “[t]o

prepare civil service rules to carry out the provisions of this Section” and vests

those rules with “the full force of law.”

The notice requirements of Rule 4.16(a) are hardly different from similar

notice rules. With regard to the state board created directly by the Louisiana

Constitution, the aggrieved party must file an “application” to the commission

“within thirty calendar days after its decision becomes final” to perfect an appeal to

the court of appeal where the commission is located. La.Const. art. 10, § 12(A).

The same is required of an appeal from a city commission established by the

Louisiana Constitution. La.Const. art. 10, § 12(B). With regard to the civil service

systems established by local option election pursuant to La.Const. art. 10, § 14,

nothing is said in that article concerning the procedural aspects of operation and,

therefore, they are governed by local rule. In fact, is this were an ordinary civil

proceeding originating in the district court, any attempt at obtaining appellate

review of the district court’s judgment would require the presentation of a motion

10

(oral or written) or petition to the district court within a specific delay period to

start the process. La.Code Civ.P. art. 2121.

Ms. Lavergne also asserts that La.Const. art. 10, § 15 does not provide for

the adoption of local rules by the civil service systems created thereunder. She

argues in brief that “[b]y adding Section 15 the drafters [of the Louisiana

Constitution] simply emphasized that the legislature retained authority to establish

a parish civil service system.” In making this argument, Ms. Lavergne cites the

court to a partial reading of La.Const. art. 10, § 15 as follows:

Section 15. Nothing in this Part shall prevent the establishment by the
legislature … of a parish civil service system in one or more parishes,
applicable to any or all parish employees, *** in any manner now or
hereafter provided by law.

Filling in the pertinent blank, that provision of the Louisiana Constitution reads as

follows:

Section 15. Nothing in this Part shall prevent the establishment by the
legislature, or by the respective parish governing authority, of a parish
civil service system in one or more parishes, applicable to any or all
parish employees, *** in any manner now or hereafter provided by
law.

La.Const. art. 10, § 15 (emphasis added).

Given the fact that a parish governing authority can establish a civil service system

without legislative action, it stands to reason that such a system would be

responsible for formulating its own rules necessary for carrying out its obligations.

Nothing suggests to this court that a civil service system created by statute is

required to have its rules of operation defined by statute. Additionally, we find

nothing within the structured procedure before us that would suggest that Ms.

Lavergne has been denied her right to judicial review guaranteed by La.Const. art.

1, § 19 or has been denied her right of access to the courts guaranteed by La.Const.

art. 1, § 22.

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In this case, Ms. Lavergne failed to comply with the notice requirement of

Rule 4.16(a), and continues to do so. That inaction on her part has left her appeal

of the Board’s decision in limbo during the time of this litigation, and we find no

merit in her argument that notice is not a requirement of her perfecting her appeal.

Accordingly, we find no error in the district court’s dismissal of Ms. Lavergne’s

appeal for her failure to comply with Rule 4.16.

DISPOSITION

For the foregoing reasons, we affirm the district court’s dismissal of Cheryl

Lavergne’s appeal of the decision of the Rapides Parish Civil Service Board. We

assess all costs of this appeal to Cheryl Lavergne.

AFFIRMED.

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