Bannister v. Department of Streets

• Decision Date: 16 January 1996
• Citation: 666 So.2d 641
• Parties: 95-0404 La
• Court: Louisiana Supreme Court

Page 641

666 So.2d 641

95-0404 La. 1/16/96

Anne BANNISTER v. DEPARTMENT OF STREETS.

No. 95-C-0404.

Supreme Court of Louisiana.

Jan. 16, 1996.

Rehearing Denied Feb. 16, 1996.

Kimberly A. Theriot, Avis Marie Russell, for Applicant.

Gilbert R. Buras, Jr., Robein, Urann & Lurye; for Respondent.

[95-0404 La. 1] LEMMIE O. HIGHTOWER, Justice Pro Tempore. ^*

We granted certiorari in this case, after the court of appeal reversed a decision by the Civil Service Commission ("the Commission") upholding the termination of a classified employee in the New Orleans Department of Streets ("the Department"). The first presented issue is whether, as concluded by the court of appeal, Civil Service Rule II, § 4.16 mandatorily requires the Commission to decide appeals within ninety days. If not, then a second question concerns whether the Commission wrongly sustained Bannister's dismissal. Upon reviewing both aspects, we reverse the court of appeal judgment and reinstate the decision of the Commission.

FACTS AND PROCEDURAL HISTORY

In February 1988, Anne Bannister, a permanently classified civil service employee with the Department, received an advancement to the level of Administrative Analyst III. Over the next four years, except for her first assignment, she worked within various divisions at several positions encompassing tasks more appropriate for an entry-level analyst. Following her transfer to the Department's auto pound in February 1992, she immediately began complaining to her superiors that she had been demoted, even though she continued to be paid the $26,000 per year salary commensurate with her Administrative Analyst III position. Eventually, in [95-0404 La. 2] October 1992, she filed a formal complaint with the Commission, resulting in a determination that respondent had been working outside of her classification. Accordingly, a letter dated November 6, 1992 directed the Department to assign the employee to duties more suitable for her designated level and pay, within ten days.

Meanwhile, two days prior to the Commission's order, the auto pound manager decided to assign Bannister to the second shift (3:00 p.m. to 11:00 p.m.) ¹ to alleviate a critical personnel shortage caused by the illness of Cindy Dorsey, the usual night shift Auto Facilities Supervisor. This reassignment, as stated in an inter-office memorandum, would be temporary with a duration "dictated by the return of Ms. Dorsey or changing circumstances." Bannister learned of her new post ² on November 8, the same day she received a copy of the above-noted letter from the Commission. Even so, she did not report to her new duty assignment between November 8 and November 29, asserting illness as the cause of her absence and, in that process, utilizing sick leave. ³ Also, on November 19, apparently still believing herself to be assigned "out of class," she filed another grievance with the city civil service department.

On November 30, 1992, Bannister returned to the auto pound but reported at her usual time, 8:00 a.m. In a meeting with both the manager and the deputy parking administrator, she maintained that she could not work the night shift due to child care problems. These two superiors, however, directed her to punch out and return at 3:00 p.m. Immediately thereafter she saw an assistant director of the Department, who reaffirmed the instructions previously given. Bannister nevertheless remained at work [95-0404 La. 3] until 1:15 p.m., and then left a note stating that she would not be able to return for the evening shift.

After that date, November 30, 1992, Bannister never again reported for work. During the next two weeks, she intermittently telephoned the Department to advise that she would not be working on the day of her call. On most of these occasions, according to the facility's sick log, she gave absolutely no reason for her absence. In fact, in her last call to the Department on December 14, she simply indicated she could not return for the rest of that week. Meanwhile, on December 3, she formally appealed to the Commission concerning her new assignment.

Eventually, the Department director sent a certified letter to Bannister's residence on Thursday, January 7, 1993, ordering that she report for the night shift by the following Monday or face possible termination. ⁴ Still, she did not return. Finally, after the employee had remained absent for more than two months, the Department instituted a termination proceeding on February 2, 1993. The administrative board, finding that respondent abandoned her job in violation of applicable civil service rules, discharged her from employment. On February 10, 1993, she received an official notification to that effect.

One month later, Bannister appealed her termination to the Commission. After consolidating that issue with the night shift complaint mentioned earlier, a hearing examiner tried the matter on June 28, 1993, and thirty days later issued his recommendation to uphold the dismissal. The Commission affirmed the termination on January 19, 1994, while also denying the respondent's motion for judgment in her favor on grounds that the adjudicative body had not decided the appeal within the ninety-day period provided by Civil Service Rule II, § 4.16. The Commission concluded that, despite coincidences suggesting "a prima facie violation" of civil [95-0404 La. 4] service anti-retaliation rules, such circumstances did not justify Bannister's extended abandonment of a work assignment entailing nothing "manifestly illegal or immoral."

Respondent then sought a reexamination of the matter in the Fourth Circuit Court of Appeal. There, a three-judge panel, with one member dissenting, interpreted the time frame enunciated in Civil Service Rule II, § 4.16 to be mandatory. Bannister v. Department of Streets, 94-0604 (La.App. 4th Cir. 11/30/94), 647 So.2d 382. That conclusion, in the majority's view, required a reversal of the Commission's belated ruling and the reinstatement of Bannister to her former position with all back pay and benefits restored. Also, in dictum, the court of appeal pronounced that Bannister had been constructively discharged, thus justifying her refusal to return to work. We granted certiorari to review that decision. Bannister v. Department of Streets, 94-0404 (La. 04/28/95), 653 So.2d 581.

DISCUSSION

Timeliness of the Commission's Decision

The action of the Commission, in rendering its decision on January 19, 1994, plainly transpired eighty-seven days beyond the ninety-day period mentioned in Civil Service Rule II, § 4.16. ⁵ That inobservance of the Commission's own rule, according to the court of appeal, mandated that the administrative decree be reversed and that Bannister be reinstated. We disagree.

The civil service provisions in the state constitution and the rules of the Commission are designed to protect public career employees from political discrimination by eliminating the "spoils" system. La. Const. art. X, § 1, et seq.; Sanders v. Department of Health & Human Resources, 388 So.2d 768 (La.1980); Louisiana Civil Service League v. Forbes, 258 La. 390, 246 So.2d 800 (1971). Essentially, civil service laws and rules establish a system under which "non-policy [95-0404 La. 5] forming" public employees are selected on the basis of merit and can be discharged only for insubordination, incompetency, or improper conduct, and not for religious or political reasons. New Orleans Firefighters Ass'n v. Civil Service Com'n of the City of New Orleans, 422 So.2d 402 (La.1982).

To further these goals, and in addition to its primary function as a quasi-judicial body, the civil service commission is empowered to generally supervise the civil service system and to establish rules for that system's administration. Civil service rules thus have the effect of law. La. Const. art. X, § 10(A)(4). Likewise, in regard to whether a civil service rule is mandatory or directory, such a construction will generally be made in accordance with the standards for interpreting statutes. If mandatory, beyond requiring the doing of the thing specified, such provisions describe the result that will follow where the required thing is not done; if directory, the terms are limited to what is required to be done. Sanders, supra.

Concerning imperatively phrased procedural requirements such as the one here at issue, the determination of whether these are mandatory cannot be based upon a mere literal reading, but, instead, necessitates ascertaining the intent of the drafters. Id. Certainly, if a requirement is so essential to the statutory plan that the legislative intent would be frustrated by noncompliance it should be interpreted as mandatory. Id.; United States v. St. Regis Paper Co., 355 F.2d 688 (2d Cir.1966). On the other hand, provisions designed to secure order, system, and dispatch in proceedings by guiding the discharge of a governmental official's duties are usually construed as directory even if worded in the imperative, especially when the alternative is harshness or absurdity. Sanders, supra; Ralpho v. Bell, 569 F.2d 607 (D.C.Cir.1977).

So then, if the law's purpose is the protection of the government by guiding its officials rather than granting rights to affected private citizens, the word "shall" may be given merely directory meaning. Sanders, supra; Triangle Candy Co. v. United States, 144 F.2d 195 (9th Cir.1944). Further, in deciding whether a requirement will [95-0404 La. 6] be given mandatory or directory effect, a significant consideration lies in comparing the results to which each such construction would lead. Sanders, supra; Holbrook v. United States, 284 F.2d 747 (9th Cir.1960).

As disclosed by its introductory clause, the purpose of Rule II, § 4.16 is to assure that the Commission promptly renders decisions in its appeals. Additionally, the provision states that such determinations are to be rendered "in any event" within ninety days after receiving the hearing officer's work....