Hebbler v. New Orleans Fire Dept.

• Decision Date: 31 March 1975
• Docket Number: No. 55375,55375
• Parties: Louis G. HEBBLER, Jr. v. NEW ORLEANS, FIRE DEPARTMENT.
• Court: Louisiana Supreme Court

Page 113

310 So.2d 113

Louis G. HEBBLER, Jr. v. NEW ORLEANS, FIRE DEPARTMENT.

No. 55375.

Supreme Court of Louisiana.

March 31, 1975.

Robert Glass, New Orleans, for plaintiff-applicant.

Blake G. Arata, City Atty., Michael A. Starks, New Orleans, Atty. for New Orleans Fire Dept.

MARCUS, Justice.

Louis G. Hebbler, who had enjoyed permanent status under civil service as a fire fighter with the New Orleans Fire Department, was suspended and later dismissed by said department. On appeal, the court of appeal ordered that he be restored to his former position. ¹ In this proceeding, Hebbler seeks to enforce the right accorded to him under R.S. 49:113 'to be paid by the employing agency all salaries and wages withheld during the period of illegal separation.' In addition to city base pay, plaintiff claimed that mandatory overtime and holiday pay, as well as state supplemental pay, were to be included in 'salaries and wages.' It was stipulated between the parties that the following amounts of pay (other than city base pay) were withheld during the period of illegal separation from March 25, 1971 to June 18, 1973: city mandatory overtime pay--$2,083.20; city mandatory holiday pay--$744.60; state supplemental pay--$3,458.00. Only city base pay ($15,063.78) was held to be due Hebbler by the Civil Service Commission of the city of New Orleans. The court of appeal rendered judgment for the mandatory overtime and holiday pay, but rejected Hebbler's claim against the New Orleans Fire Department for the state supplemental pay. However, it ordered the New Orleans Fire Department to forward a warrant to the State Fire Marshal duly executed in accordance with R.S. 33:2004 in the amount of $3,458.00, the sum claimed as state supplemental pay. ²

The New Orleans Fire Department did not seek rehearing; it acquiesced in the judgment by the payment of the sum ordered. Hebbler complained that the failure of the court of appeal to order his employing agency, New Orleans Fire Department to pay him the lost state supplemental pay as salaries and wages was contrary to R.S. 49:113. Rehearing was refused and we granted certiorari. ³

State supplemental pay for firemen was created by Act No. 82 of 1963 Enrolled as R.S. 33:2001 et seq. Extra compensation, in addition to compensation paid by any municipality, parish or fire protection district maintaining a fire department, is paid to the employee according to a schedule set out in law. La.R.S. 33:2002, as amended by Acts 1973, No. 187, § 1. A special fund in the treasury of the state of Louisiana is created for the supplemental salaries. Id. 33:2003, as amended by Acts 1974, No. 296, § 1. Warrants drawn by mayors or parish officials with a list of qualified employees are forwarded to the State Fire Marshal. Id. 33:2004, as amended by Acts 1967, No. 82, § 1. After approval from the Fireman's Supplemental Pay Board, as provided in R.S. 33:2009, the State Fire Marshal shall prepare, sign and mail checks to each individual employee. Id. 33:2004(B). Such supplemental pay must be included by the municipal or parish officials who prepare the payrolls 'in the calculation and deduction from the pay of such employees of the sums required by state or federal law to be withheld by an employer, such as federal income tax and social security tax or contributions to local retirement systems.' Id. 33:2004(C). Municipal or parish officials shall also include the supplemental pay in the calculation and computation of the total wages paid to the employee in the determination of employer contributions to any retirement system or pension fund of which such employee may be a member and in the determination of any other employee benefits, sick leave, or disability pay to which the employee might be entitled. Id. 33:2004(D).

Act No. 191, Section 1 of 1960 (R.S. 49:113) provides:

Employees in the state or city civil service, who have been illegally discharged from their employment, as found by the appellate courts, shall be entitled to be paid by the employing agency all salaries and wages withheld during the period of illegal separation, against which amount shall be credited and set-off all wages and salaries earned by the employee in private employment in the period of separation.

It is clear from this statute that an illegally discharged employee, as found by the appellate courts, Shall be paid by his Employing agency all salaries and wages so withheld. Hebbler contends that the statute commands the New Orleans Fire Department, as his employing agency, to pay him the withheld state supplemental pay. He argues that no distinction is made in the statute as to the source of funds for salaries and wages. Rather, one party, the employing agency, is responsible for repayment of All salaries and wages withheld.

Defendant New Orleans Fire Department concedes that the state supplemental pay under R.S. 33:2002 et seq is part of plaintiff's salaries and wages within the intendment of R.S. 49:113; however, it contends that, since this supplemental pay is paid by the state, plaintiff must seek reimbursement of the extra compensation due him during his illegal separation from the state and not from the New Orleans Fire Department. The court of appeal agreed with this contention. Although recognizing that R.S. 49:113 explicitly mandates the employing agency to make the employee whole for all salaries and wages withheld because of improper termination of employment, it nevertheless construed the statute to mean that the employing agency is responsible only for the...