New Orleans Firefighters v. New Orleans

• Decision Date: 26 May 2004
• Docket Number: No. 2003-CA-1281.,2003-CA-1281.
• Citation: 876 So.2d 211
• Parties: NEW ORLEANS FIREFIGHTERS LOCAL 632, et al. v. CITY OF NEW ORLEANS, et al.
• Court: Louisiana Supreme Court

876 So.2d 211

NEW ORLEANS FIREFIGHTERS LOCAL 632, et al. v. CITY OF NEW ORLEANS, et al.

No. 2003-CA-1281.

Court of Appeal of Louisiana, Fourth Circuit.

May 26, 2004.

Appeal from the Civil District Court, Parish of Orleans, No. 81-11108, Robert A. Katz, J.

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Louis L. Robein, Jr., Nancy Picard, Robein, Urann & Lurye, Metairie, LA, for Plaintiff/Appellee, New Orleans Firefighters Association.

Jay Alan Ginsberg, New Orleans, LA, for Defendants/Appellants, City Civil Service Commission for the City of New Orleans and J. Michael Doyle.

Sherry S. Landry, Acting City Attorney, Joseph V. DiRosa, Jr., Chief Deputy City Attorney, Annabelle Walker, Deputy City Attorney, Deborah M. Henson, Assistant City Attorney, New Orleans, LA, for Defendant/Appellant, City of New Orleans.

(Court Composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, and Judge LEON A. CANNIZZARO, JR.).

MAX N. TOBIAS, JR., Judge.

In this on-going litigation between the New Orleans Firefighters Local 632 (hereinafter "the Firefighters") on one side, and the City of New Orleans (hereinafter "the City" or "City") and the New Orleans Civil Service Commission (hereinafter "the Commission" or "Commission") on the other, we are called upon to review the final judgment rendered by the trial court, which awarded the Firefighters damages in the principal amount of $176,183,448.39, plus annual leave days, legal interest, $24,130,682.45 in employer pension contributions, and an adjustment to the base pay of the class members to include all longevity raises that they should have received under the law. All parties have appealed the judgment in all or various respects. For the reasons set forth below, we amend in part, affirm in part, reverse in part, and remand to the trial court for recalculation of damages.

In 1981, the Firefighters filed a class action against the City and certain City officials, and later joined the Commission and its Director. The action primarily challenged Commission Rule VIII, § 1.2, which established a "use it or lose it" policy concerning the Firefighters' use of accumulated annual leave in excess of ninety days (or forty-five days, depending on the date of hire of the particular fireman). The Firefighters contended that the City's implementation of the "use it or lose it" policy violated La. R.S. 33:1996, which provides for entitlement to annual vacation days and further provides that "[the] vacation privileges herein provided shall not be forfeited by any member of the department for any cause...."

Subsequently, the Firefighters amended their petition in 1993 to assert that (1) La. R.S. 33:1996 provides for accrual of more annual leave per year than allowed by Commission Rule VIII, § 1.1, and (2) Commission Rule IV, § 8.1 provides for less frequent longevity pay increases than is required by La. R.S. 33:1992(B). In this respect, the Firefighters also claimed that Commission Rule IV, § 8.1 fails to consider their actual salary (base pay plus accrued longevity) in the computation of longevity pay increases.

After lengthy preliminary proceedings, the trial court on 19 July 1993 certified the class, dividing the Firefighters into three classes. Class One consisted of all active and retired firefighters who forfeited accrued annual leave under the "use it or lose it" policy. Class Two consisted of all firefighters who were denied the full measure of annual leave days. Class Three consisted of all firefighters who were deprived of the full longevity pay increases.

Thereafter, the Firefighters moved for partial summary judgment on the issue of liability. The City responded with several constitutional and statutory arguments. In April 1999, the trial court rendered a partial summary judgment in favor of the Firefighters, ruling that (1) the members of Class One, who forfeited accrued annual leave by operation of Commission Rule VIII, §§ 1.2 and 1.3, were entitled to back pay and future pay, subject to any applicable set-offs and credits; (2) the members of Class Two, who were denied their full annual leave entitlement because of Commission Rule VIII, § 1.1, were entitled to back pay and future pay, subject to a credit for any payments they may have received; and (3) the members of Class Three, whose annual longevity pay increases were limited by operation of Commission Rule IV, § 8.1, were entitled back pay and future pay, subject to a credit for any payments they may have received. The court certified the judgment for immediate appeal pursuant to La. C.C.P. art. 1915(B)(1). We affirmed the judgment. See 99-1995 (La.App. 4 Cir. 6/7/00), 767 So.2d 112. The Supreme Court granted certiorari to review the trial court's rulings; the Court affirmed in part, reversed in part, and remanded for a trial on the merits.

On remand, the trial court found substantially in favor of the Firefighters. It awarded the Firefighters past longevity raises from 1979 to run from the third year to the twenty-third year of service. It also determined that back longevity raise calculations be performed on a compounding basis on base or actual pay, which includes City base pay, supplemental pay, millage pay, and scheduled and unscheduled overtime pay. The court granted the City credits for the years in which it gave the Firefighters a 2.5% civil service longevity increase, but not for those years in which a general raise was realized for all City employees. The trial court also awarded the Firefighters back annual leave days based on the "exigible" dates established in the court's 4 September 2002 judgment. It also awarded individual firefighters compensation for all annual leave they were denied due to on-the-job injuries or manpower shortages. Finally, the trial court held that the base pay of the class members (active and retired) be immediately adjusted to include all longevity raises they should have received pursuant to La. R.S. 33:1992(B), including those accrued outside of the 14 July 1978 prescriptive period for purposes of current and future pay, as well as for calculation of back pay due under the judgment.¹

This case has produced two significant Louisiana Supreme Court opinions. In 1982, the Court was confronted with the problem of determining the allocation of constitutional power between the Louisiana Legislature and the Commission to make rules of law establishing New Orleans firefighters' minimum and overtime wages. New Orleans Firefighters Assoc. v. Civil Serv. Comm'n of the City of N.O., 422 So.2d 402 (La.1982) (hereinafter "Firefighters I"). The Court held that La. Const. art. VI, § 14 expressly reserved to the Legislature the authority to establish statewide rules providing for minimum wages and working conditions for firemen. Noting further that the "plenary legislative power to adopt laws providing for minimum wages and working conditions of municipal policemen and firemen does not yield to the Civil Service Commission's power to adopt uniform pay plans," id. at 411, the Court determined that the firemen's wage laws were not "an attempt by the legislature to fix salaries or amend a civil service pay plan but ... [were] a good faith effort to set a floor under wages and a ceiling over hours pursuant to a consistent statewide public policy." Id. at 414. In addition, the Court held that "[a] fireman's usual salary includes at least the total amount of compensation guaranteed to him by law under both minimum wage and supplemental salary statutes." Id. at 413.

Finally, the Court, finding that its previous opinions in Louisiana Civil Service League v. Forbes, 258 La. 390, 246 So.2d 800 (1971) and Barnett v. Develle, 289 So.2d 129 (La.1974) did not govern the case before it, held that the obstacles to the legislation found in those decisions under the 1921 Louisiana Constitution, as amended, were removed by the adoption of the 1974 Constitution. Id. The Court perceived no adequate grounds for adjudging that a reenactment of La. R.S. 33:1992, the firemen's minimum wage law, was required before it could have the effect within the City which it had always had throughout the state. Id. at 414.

The second opinion of the Supreme Court in this case came in 2001, at which time the Court considered the principal issues of whether the Fireman's Minimum Wages and Maximum Hours Law, La. R.S. 33:1991-99, was violated (1) by the "use it or lose it" policy in the Rules of the Commission regarding the accumulation of annual leave, or (2) by the Rules of the Commission regarding longevity pay increases. New Orleans Firefighters Local 632 v. The City of New Orleans, 2000-1921 (La.5/25/01), 788 So.2d 1166 (hereinafter "Firefighters II").² As to the first issue, the Court held that "La. R.S. 33:1996 does not either grant or deny firemen the right to carry forward earned vacation days to future years. The statute simply is silent on the issue and therefore is not in conflict, on its face, with Commission Rule VIII, § 1.2."³ Id. at p. 7, 788 So.2d at 1171.

However, the Court did find that Commission Rule IV, § 8.1 clearly violated La. R.S. 33:1992(B), which by its terms was applicable to "each member of the fire department" and not only to those who were paid the statutory minimum salary.

The City simply chose to disregard the statute that clearly mandates the amount and frequency of longevity pay increases for all firemen, and to justify this conduct on the basis that the City pays higher than minimum base salaries. This court cannot allow the statute to be disregarded, and the City's recourse rests with the Legislature.

Id. at p. 9, 788 So.2d at 1172. Consequently, the summary judgments of the lower courts were reversed as to back pay and future pay that were held to be forfeited by operation of Commission Rule VIII, § 1.2, and that portion of the motions for summary judgment was denied. In all other respects, the summary judgments of the lower courts were affirmed, and the case was remanded.

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