Bienvenu, In re

• Citation: 158 So.2d 213
• Decision Date: 12 November 1963
• Docket Number: No. 6011,6011
• Parties: In re Investigation of Alleged Discrimination against Mrs. Lite B. BIENVENU, Applicant for Public Welfare Director II Position, St. Martin Parish.
• Court: Court of Appeal of Louisiana — District of US

Page 213

158 So.2d 213

In re Investigation of Alleged Discrimination against Mrs.

Lite B. BIENVENU, Applicant for Public Welfare

Director II Position, St. Martin Parish.

No. 6011.

Court of Appeal of Louisiana, First Circuit.

Nov. 12, 1963.

Rehearing Denied Dec. 16, 1963.

Writ Refused Feb. 7, 1964.

Horace G. Pepper, Chief Counsel, Department of Public Welfare, and Robert L. Roland, of Watson, Blanche, Wilson, Posner & Thibaut, Baton Rouge, for Mrs. Mary Evelyn Parker, Commissioner of Public Welfare.

Louis S. Quinn, General Counsel, Department of State Civil Service, Baton Rouge, Richard C. Cadwallader, Baton Rouge, for Mrs. Lite B. Bienvenu.

Ralph D. Dwyer, Jr., New Orleans, for Louisiana Civil Service League, amicus curae.

Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.

ELLIS, Judge.

This is an appeal by Mrs. Mary Evelyn Parker, Commissioner of Welfare, from a decision of the State Civil Service Commission in an investigation by public hearing as a result of a charge by Mrs. Lite B. Bienvenu that she had failed to obtain an appointment as Director of the St. Martin Parish Department of Public Welfare through political pressure applied to the appointing authority. Subsequent to an investigation of the charge by the Director of the Department of Civil Service, the Civil Service Commission ordered a public hearing pursuant to the provisions of Article XIV, Section 15, (O) (4) of the Louisiana Constitution, Sections 2.9 C of the Civil Service Rules, which hearing was held in Baton Rouge on February 20th, 1963 at which time documentary evidence, sworn testimony of a number of witnesses including the complainant was heard, which resulted in an order by the members of the Civil Service Commission with one commissioner dissenting as follows:

'Having found as we have that the complainant was, through the constitutionally prohibited use of political influence, deprived of employment in the Classified Service of the State of Louisiana, IT IS ORDERED that Mrs. Lite B. Bienvenu be recognized as having been duly appointed to the position of Public Welfare Director II for St. Martin Parish, and, effective immediately upon the finality of this order, subject to all pertinent rules and regulations governing such appointment and position, that she enter into the performance of the duties of such office.'

Bearing in mind that the findings of fact of the Commission are final and may not be disturbed if there is substantial evidence in support thereof, LSA- Constitution Article XIV, Sec. 15(O) (1), Cunningham v. Caddo-Shreveport Health Unit, State Department of Health, La.App., 141 So.2d 142 (1st cir.) and the cases cited therein, we have carefully considered all the evidence in the record and find that the findings of fact of the Commission are not only substantially, but fully, supported by the evidence. We herewith adopt said findings of fact which are as follows:

'1. For a period of approximately eighteen (18) months prior to the hearing in Baton Rouge, the office of Public Welfare Director II in St. Martin Parish had been vacant.

'2. Mrs. Lite Bienvenu had, some time during or prior to the existence of the said vacancy, established her eligibility for employment in this class.

'3. On at least two (2) occasions the name of Mrs. Bienvenu appeared on a list of eligibles submitted to the Department of Public Welfare for possible employment; on the first occasion the list contained four (4) names, Mrs. Bienvenu's name being the fourth one listed. On the second occasion, the list contained but two (2) names and Mrs. Bienvenu's name was the second of these.

'4. On the second occasion referred to, Mrs. Bienvenu was duly interviewed several times by appropriate personnel in the Department of Public Welfare in Baton Rouge, and finding her acceptable for employment to fill the St. Martin Parish vacancy, it was agreed between Mrs. Bienvenu and the Department that she would report for duty in the St. Martin Parish office on November 26, 1962.

'5. Following this agreement, Mrs. Bienvenu was requested by the Department to say nothing to anyone other than her husband about her employment for the reason that the Commissioner, Mrs. Mary Evelyn Parker, desired to inform the personnel already employed in the St. Martin Parish office, as well as the Welfare Board in that Parish, of the employment of Mrs. Bienvenu, before any public announcement should be made of the fact.

'6. On what precise date the record does not reveal, but Representative Angelle telephoned J. Andre Bienvenu, father-in-law of the complainant, and according to Mr. Angelle:

"I told him that I wanted to discuss the possibility of his daughter-in-law and her appointment. * * *'

and Mr. Angelle asked Mr. Bienvenu to arrange a meeting of the three of them. Mr. Bienvenu relayed Mr. Angelle's request to the complainant and, giving as her reason her commitment to the Welfare Department personnel in Baton Rouge not to discuss the appointment with anyone, she declined to see Mr. Angelle. In the words of J. Andre Bienvenu, Mr. Angelle's reaction to this news was expressed as follows:

"* * * I am sorry that she feels that way because I have her appointment in my hand. * * * Mrs. Parker will not appoint nobody unless I give the O.K. * * *.'

'7. A letter written November 13, 1962 confirming the employment of Mrs. Bienvenu, effective November 26, 1962, was prepared in the Department of Public Welfare in Baton Rouge for the signature of the Commissioner, Mrs. Parker, and this letter was on her desk for her signature when Mrs. Parker received a telephone call from Robert Angelle, State Representative from St. Martin Parish, requesting that Mrs. Parker refrain from appointing Mrs. Bienvenu until Mr. Angelle could come to Baton Rouge and discuss the matter with Mrs. Parker. It was indicated in this conversation by telephone that Mr. Angelle was in possession of information concerning Mrs. Bienvenu which was of such a nature that discussion of it by telephone was not deemed advisable. In deference to this request, Mrs. Parker withheld her signature from the letter and awaited the visit of Mr. Angelle.

'8. Some days later, on December 5, 1962, Mr. Angelle came to Baton Rouge and discussed the matter with Mrs. Parker. At this time he urged Mrs. Parker not to appoint Mrs. Bienvenu.1 Instead of referring this information back to the Director of the Department of Civil Service so that he could investigate the charges made by Mr. Angelle and make a judgment on the fitness of the candidate on the eligible list, Mrs. Parker made no report to the Department of Civil Service concerning her conversations with Representative Angelle nor did she investigate on her own to determine the validity of the charges. She simply informed Mrs. Bienvenu by letter of December 7, 1962, that she would not be employed.

'9. Mrs. Bienvenu, believing that political considerations had been responsible for preventing her from entering into the employment of the Department of Public Welfare, prepared and mailed her letter of complaint to the Department of Civil Service under date of December 21, 1962.

'10. Representative Angelle's call and visit to Mrs. Mary Evelyn Parker, Commissioner of Public Welfare, were for the specific purpose of prevailing upon Mrs. Parker not to appoint Mrs. Bienvenu to the job as Director of the St. Martin Parish office of the Department of Public Welfare, and his actions were taken because of Mrs. Bienvenu's refusal to come to him and discuss with him the manner in which that office would be operated by Mrs. Bienvenu. These actions were political in nature. But for the intervention of Representative Angelle, Mrs. Bienvenu would have commenced her duties on November 26, 1962.'

Based upon the above findings of fact, we believe that the Commission properly recognized Mrs. Lite B. Bienvenu as having been duly appointed to the position of Public Welfare Director II for St. Martin Parish and that the appointment was subsequently cancelled for political reasons and we do not believe that such an order could by any stretch of the imagination be interpreted as a direct appointment of Mrs. Bienvenu to the position by the Commission. The Commission concedes it has no authority to make a direct appointment. Based upon the evidence in this record and the order of the Commission, supra, we deduce that the Commission has (1) in substance found that Mrs. Bienvenu was in fact appointed; and (2) concluded that the action of the appointing authority deprived her of the position because of political influence and, therefore, in substance, the Commission directed the appointing authority to validate and effectuate Mrs. Bienvenu's appointment which had, in fact, been made by Mrs. Mary Evelyn Parker, Commissioner of Welfare for the State of Louisiana.

We will consider the question of whether Mrs. Bienvenu was, in fact, appointed within the meaning of the word 'appointed' as it appears in the Civil Service Rules. We note that in Chapter 1, Paragraph 1.5 of the Commission's rules, 'appointment' is defined as follows:

"Appointment' means the designation of a person by due authority, to become an employee in a position, and his induction into employment in such position.'

Section 8.9 A of the Commission's Rules regarding appointment provides as follows:

'8.9 Appointment of Eligibles From Certificates.

'A. Except as provided in Sub-sections -B-and -C-hereof, appointment from certificates must be made from one of the three highest ranking eligibles who have not indicated an unwillingness to accept appointment, except in making appointments from a department preferred re-employment list the highest ranking eligible shall be appointed. Certificates showing action taken thereon must be returned within fifteen -15-working days after receipt unless the time is extended by the director. In each case of acceptance of an appointment, such appointment shall become effective as of the date on which the...