Cherry v. Office of Criminal Sheriff

• Decision Date: 03 July 1984
• Docket Number: No. CA-1052,CA-1052
• Citation: 454 So.2d 293
• Parties: Ronald CHERRY v. OFFICE OF CRIMINAL SHERIFF. 454 So.2d 293
• Court: Court of Appeal of Louisiana — District of US

Page 293

454 So.2d 293

Ronald CHERRY v. OFFICE OF CRIMINAL SHERIFF.

No. CA-1052.

454 So.2d 293

Court of Appeal of Louisiana Fourth Circuit.

July 3, 1984.

Harry T. Widmann, New Orleans, for plaintiff-appellant.

T. Allen Usry, Usry & Weeks, Metairie, for defendant-appellee.

Before REDMANN, C.J., and GARRISON and BARRY, JJ.

BARRY, Judge.

An Orleans Parish sheriff's employee, formerly serving as a Captain, appeals a Civil Service Commission ruling which maintained his reduced rank and classified status as a deputy. The Sheriff answered that the employee forfeited his classified status by accepting an unclassified position without the required leave of absence.

Ronald Cherry was hired as a probationary Prison Officer I (deputy) on April 20, 1970 and acquired permanent status before December 31, 1974. In April, 1977 Cherry was promoted via civil service to P.O. III (Lieutenant) and in July, 1978 the Sheriff elevated him to P.O. IV (Captain) under his unclassified pay plan.

In June, 1977 the Supreme Court held the 1974 Constitution placed criminal sheriff's employees in unclassified civil service. ¹ Civil Service Commission of the City of New Orleans v. Foti, 349 So.2d 305 (La.1977). Citing Article XIV Sec. 9 of the 1974 Constitution, the Court stated:

"Accordingly, employees of the criminal sheriff who prior to the effective date had acquired classified status shall retain that status." Id. at 310.

Shortly thereafter the sheriff's office filed papers on all deputies hired after January 1, 1975, changing their status from classified to unclassified. On December 2, 1977 Cherry's status was changed to unclassified. The Sheriff continued using Civil Service forms and rank designations through December, 1980 because the payroll was prepared by City computers.

In January, 1981 the Sheriff began to administer his payroll. There were different pay scales for classified and unclassified personnel. The Sheriff testified he was faced with a 10% budget cut and a 25% increase in prisoners and decided to eliminate all overtime pay. Civil Service rules require that classified employees receive time and a half for overtime and double time on holidays. He determined civil service workers would revert to 8 hour shifts and unclassified employees would work 12 hours with no overtime pay.

In April and May, 1981 the Sheriff held several meetings with the remaining classified employees in order to persuade them to accept unclassified status. He told them it was his position that under Foti they would revert to their rank held on the effective date of the 1974 Constitution if they chose to remain under Civil Service. Some personnel relinquished their classified status while others, including Cherry, did not. The Sheriff reduced Cherry's classification to his pre-1974 Constitution status, i.e., P.O.I. Shortly thereafter he was placed on annual leave and appealed his "illegal demotion" to the Civil Service Commission and asked for restoration of his annual leave that he was forced to take. The Commission restored the annual leave but maintained Cherry's status as classified Prison Officer I.

Cherry claims the Foti decision did not have the effect of locking classified employees of the Sheriff's office into the rank they had achieved as of the effective date of the 1974 Constitution. Instead, he argues, Foti recognized that employees who had attained permanent classified status as of December 31, 1974 would retain classified status only: i.e., these employees could be promoted to a higher rank and still remain within the classified system. For this reason, he submits, his present rank within the classified service should be P.O.IV.

The Sheriff answered the appeal maintaining Cherry has no classified status. He argues Cherry accepted an unclassified position without following Civil Service Rule VIII Sec. 6 of the City of New Orleans. ² Since he failed to obtain a leave from his...