Boyer v. St. Amant

• Decision Date: 08 November 1978
• Docket Number: No. 9533,9533
• Citation: 364 So.2d 1338
• Parties: Luke L. BOYER et al. v. John O. ST. AMANT, Sheriff, Parish of St. Charles.
• Court: Court of Appeal of Louisiana — District of US

Page 1338

364 So.2d 1338

Luke L. BOYER et al. v. John O. ST. AMANT, Sheriff, Parish of St. Charles.

No. 9533.

Court of Appeal of Louisiana, Fourth Circuit.

Nov. 8, 1978.

Writ Refused Dec. 8, 1978.

Garland R. Rolling, Metairie, for plaintiffs-appellants.

Steven F. Griffith, Sr., Destrehan, for defendant-appellee.

Before REDMANN, BOUTALL, and GARRISON, JJ.

GARRISON, Judge.

This suit arose out of plaintiff's alleged wrongful discharge from his employment as a deputy sheriff in St. Charles Parish. Plaintiff filed suit on June 29, 1977 against John O. St. Amant, Sheriff of St. Charles Parish, for wrongful discharge in violation of R.S. 23:961. The petition alleged that plaintiff's employment had been terminated solely because of his failure to support Sheriff St. Amant's candidacy for election.

After lengthy pretrial litigation, which has no relevance here, defendant filed exceptions of no cause and no right of action. These exceptions were maintained by the trial court, and plaintiff's suit was thereby dismissed. Plaintiff has lodged this appeal to challenge this dismissal.

The primary question presented here is whether or not plaintiff's petition states a cause of action for which relief may be granted. In order to grant an exception of no cause of action, all allegations contained in plaintiff's petition must be considered as true, and accepting them as true, the petition must fail to state a cause of action C.C.P. Art. 931: Lewis v. Kehoe Academy, 346 So.2d 289 (La.App. 4th Cir. 1977). Thus, we must look carefully at the allegations made here.

According to plaintiff, the facts were as follows: Plaintiff was originally hired as a deputy sheriff for St. Charles Parish in 1970 by defendant, John St. Amant, who was then sheriff of St. Charles Parish. Defendant was defeated for reelection in 1971, but plaintiff continued to work as a deputy sheriff for the sheriff, Julius Sellers. In 1975, defendant St. Amant once again ran for sheriff and was elected, defeating Albert Laque, whom plaintiff had supported. In February 1976, plaintiff was notified by letter from defendant, that:

"(e)ffective immediately upon the date that I assume my elected position as Sheriff of St. Charles Parish, your services with the Sheriff's Department will be terminated." Letter from John O. St. Amant, Record, p. 5.

These factual allegations are not disputed by defendant, however defendant does not admit to the additional contention of plaintiff as to the main reason he was fired. Plaintiff contends that defendant's action terminating his employment was part of a systematic political purge of all those who failed to support his candidacy. Thus, plaintiff alleges that he was fired solely for his political activities and affiliations, in violation of R.S. 23:961, which provides:

"Except as otherwise provided in R.S. 23:962, no employer having regularly in his employ twenty or more employees shall make, adopt, or enforce any rule, regulation, or policy forbidding or preventing any of his employees from engaging or participating in politics, or from becoming a candidate for public office. No such employer shall adopt or enforce any rule, regulation, or policy which will control, direct, or tend to control or direct the political activities or affiliations of his employees, nor coerce or influence, or attempt to coerce or influence any of his employees by means of threats of discharge or of loss of employment in case such employees should support or become affiliated with any particular political faction or organization, or participate in political activities of any nature or character.

Any individual person violating the provisions of this Section shall be fined not less than one hundred dollars nor more than one thousand dollars, or imprisoned for not more than six months, or both; and any firm, corporation or association violating the provisions of this Section shall be fined not less than five hundred dollars nor more than two thousand dollars.

Nothing herein contained shall in any way be construed to prevent the injured employee from recovering damages from the employer as a result of suffering caused by the employer's violations of this Section."

Inasmuch as R.S. 23:961 specifically regulates employer and employees, it is necessary to examine the relationships between a sheriff and his deputies, and determine whether an employer/employee relationship exists.

The trial judge, in his written reasons for judgment maintaining the exceptions, found that a sheriff is not the employer of a deputy sheriff. He thus concluded that the provisions of R.S. 23:961 were not applicable. We concur.

Article 5, Section 27 of the 1974 Constitution creates the position of sheriff to be elected for a four year term in each parish. R.S. 33:1433(A) authorizes each sheriff to "appoint as many deputies as necessary, but not more than authorized by law." A deputy sheriff possesses "all of the powers and authority granted by law to the sheriff, and may perform any of the duties and exercise any of the functions of the sheriff." C.C.P. Art. 331. A deputy, as well as a sheriff, is a "public officer within the definition of R.S. 42:1, and consequently with regard to power and authority to enforce the law, there is no difference between them. Thus, the State may be considered the deputy's employer. Foster v. Hampton, 352 So.2d 197 (La.1977). See also State v. Mayeux, 228 La. 6, 81 So.2d 426 (1955).

As an appointed public officer, a deputy sheriff has no statutorily prescribed term of office, but merely serves at the pleasure of the sheriff. Potts v. Morehouse Parish School Board, 177 La. 1103, 150 So. 290 (1933). It has long been established that

"As used in this title, the term "public office" means any state, district, parish or municipal office, elective or appointive, or any position as member on a board or commission, elective or appointive, when the office or position is established by the constitution or laws of this state.

"Public officer" is any person holding a public office in this state. " R.S. 42:1.

". . . where the term of the office is not fixed by law, the power to remove is an incident to the power to appoint." Garnier v. Louisiana Milk Commission, 200 La. 594, 8 So.2d 611, 614 (1942).

Similarly, there are numerous...