Smith v. Division of Administration

• Decision Date: 05 September 1978
• Docket Number: No. 61639,61639
• Parties: Michael N. SMITH v. DIVISION OF ADMINISTRATION.
• Court: Louisiana Supreme Court

Page 1101

362 So.2d 1101

Michael N. SMITH v. DIVISION OF ADMINISTRATION.

No. 61639.

Supreme Court of Louisiana.

Sept. 5, 1978.

Rehearing Denied Oct. 5, 1978.

Phil E. Miley, Division of Administration, Baton Rouge, William D. Brown, Brown, Wicker & Lee, Monroe, for defendant-respondent.

R. Gray Sexton, Baton Rouge, State Dept. of Civil Service, Intervenor, applicant for Dept. of Civil Service Com.

Marian Mayer Berkett, Moise W. Dennery, William B. Dreux, Thomas B. Lemann, Charles J. Rivet, New Orleans, amicus curiae for Civil Service League.

CALOGERO, Justice.

We granted writs in this case upon application of the Department of Civil Service, State of Louisiana to review a decision of the Court of Appeal, First Circuit on an appeal from an order from the State Civil Service Commission. Smith v. Division of Administration, 358 So.2d 1291 (La.App. 1st Cir. 1978).

The issue in this litigation is whether the plaintiff, Michael N. Smith, an EDP Programmer III in the Division of Administration, is or was a classified employee of the state. Smith, who purportedly was in the classified service with permanent status, was notified by letter that his employment would be terminated as of April 26, 1976. He appealed the dismissal to the Director of the Department of Civil Service. The Civil Service Commission on initial review ruled that the attempted discharge was ineffective and that Smith was to be returned to the status he had had on April 26, 1976, the date of the attempted discharge. Because the ruling was unclear about Smith's entitlement to back pay, neither he nor the Division of Administration accepted it as conclusive. The appeal was then reinstituted on the request of Smith and the Division of Administration, and a referee was appointed. While that proceeding was under advisement, the First Circuit Court of Appeal on February 14, 1977 rendered its decision in In Re Division of Administration, 343 So.2d 277 (La.App. 1st Cir. 1977). Citing that decision and this Court's refusal to grant writs in that case, the Civil Service Commission Ex propio motu, dismissed Smith's appeal.

Adequate consideration of the issue in this case requires a brief discussion of In Re Division of Administration, supra. On September 11, 1975, the Civil Service Commission adopted a resolution calling a public hearing to investigate whether twenty unclassified employees of the Division of Administration had been employed in violation of state civil service laws. Following an evidentiary hearing, the Commission concluded that the Division of Administration was subject to the state's civil service laws and directed the division to bring all its employees, particularly the twenty whose employment prompted the investigation, into the classified service. The ruling did not affect the division's appointed head nor the two unclassified positions permitted by civil service law. The Division of Administration appealed to the First Circuit which reversed that ruling. The First Circuit concluded that the Civil Service Commission was without jurisdiction to review the employment practices of the Division of Administration because the Division of Administration is part of the "office of the governor" within the meaning of Article 10, § 2 of the Louisiana Constitution of 1974. The Department of Civil Service and the Louisiana Civil Service Commission sought writs from that decision. Writs were denied May 11, 1976. 345 So.2d 504 (La.1977).

After the Civil Service Commission's dismissal based on In Re Division of Administration Smith appealed to the First Circuit Court of Appeal. The Department of State Civil Service, pursuant to Louisiana Revised Statute 13:3417, ¹ intervened. The Division of Administration opposed the order of intervention on the grounds that this Court's denial of writs in In Re Division of Administration precluded the Civil Service Commission's relitigation of the issue. The motion in opposition was denied and the intervention permitted. On December 14, 1977, the morning the case was set for argument, Smith and the Division of Administration filed a motion to dismiss the appeal for the reason that the parties had settled the case. The Department of Civil Service, however, did not join in the motion and in fact opposed the dismissal. The Court of Appeal took the motion under advisement and on January 23, 1978, denied the motion to dismiss; on the merits, however, the court affirmed the Civil Service Commission's dismissal of Smith's appeal. The Department of Civil Service applied for writs which were granted. 359 So.2d 994 (La.1978).

The question of whether the Division of Administration is part of the "office of the governor" within the meaning of Article 10, § 2 of the Louisiana Constitution of 1974 which would place its employees in the unclassified service is the same question raised in In Re Division of Administration. The fact that writs were denied in In Re Division of Administration ² does not as the defendant argues preclude this Court from reviewing the Court of Appeal's decision in this case. This Court's denial of a writ is not an adjudication on the merits of a case. ³ See Day et al v. Campbell Grosjean Roofing and Sheet Metal Corporation, et al 260 La. 325, 256 So.2d 105 (1971). Consequently, the question of whether the employees of the Division of Administration are in the classified service is one of first impression for this Court.

The Division of Administration was created by Act 133 of 1948, Title I, section 1 which provided:

"Division of Administration: Be it enacted by the Legislature of Louisiana, that a Division of Administration whose employees shall be employees of the Office of the Governor is hereby constituted and created as a Division of the Office of the Governor, and shall hereafter exercise those powers and functions as hereinafter set forth and as may be further provided by law."

When the Division of Administration was organized, the Department of Finance was abolished and its employees, who were in the classified service, were transferred to the Division of Administration. The 1948 act subsequently became R.S. 39:1 which was amended in 1952 to add a budget office in the "office of the governor."

On May 11, 1953, the State Civil Service Commission ruled that employees of the Division of Administration, the Budget Office, and the Division of State Building were not in the office of the governor within the meaning of the 1952 Civil Service Amendment. Throughout this period, the employees of the Division of Administration remained in the classified service. Apparently recognizing this situation, the legislature by Act 42 of 1956, section 1 amended R.S. 39:1 to delete the subsection added in 1952 and the words "shall be the employees of the office of the governor." As so amended R.S. 39:1 reads as follows:

"A. A division of administration is hereby Created as a division of the office of the governor, and shall exercise those powers and functions as hereinafter set forth and as may be further provided by law." (Emphasis added.)

After the question of the status of the Division of Administration's employees was again raised in the Civil Service Commission's hearings in the In Re Division of Administration matter, the 1976 legislature in House Concurrent Resolution 264 declared that it "is and always has been" the legislature's intent that the Division of Administration be a part of the "office of the governor" and by inference that the employees be unclassified:

"WHEREAS, it is recognized that a ruling of the State Civil Service Commission did not recognize that the division is an integral part of the office of the Governor, that the division is entirely under the supervision, control, and direction of the Governor, that the division performs essential governmental duties imposed directly upon the governor and delegated by him to the division, and that the ruling by the State Civil Service Commission placing the employees of the division in the classified service has incorrectly interpreted the intent of the legislature evidenced by the wording of the statutes and the constitutional provisions from the time the division was created up to the present.

"THEREFORE, BE IT RESOLVED by the House of Representatives of the Legislature of Louisiana, the Senate thereof concurring, that the Legislature hereby goes on record that the intent and purpose of the Legislature is and always has been that the Division of Administration is a division of the office of the Governor, and as such is an integral part of his staff, performing essential constitutional and statutory functions for the Governor as the chief executive officer of the state, under his control, and that officers and employees of the Division of Administration are officers and employees of the office of the Governor."

The Court of Appeal in In Re Division of Administration relied heavily on the legislative intent announced in House Concurrent Resolution 264.

To resolve the question presented in this case, we must examine the constitutional provision here at issue. Louisiana Constitution of 1974 Article 10, § 2 divides state and city service into classified and unclassified. Article 10, § 2 provides in pertinent part:

(A) Classified Service. The state and city civil service is divided into the unclassified and the classified service. Persons not included in the unclassified service are in the classified service.

(B) Unclassified Service. The unclassified service shall include the following officers and employees in the state and city civil service.

(10) employees, deputies, and officers of the legislature and of the offices of the governor, lieutenant governor, attorney general, each mayor and city attorney, of police juries, school boards, assessors, and of all offices provided for in Article V of this constitution except the offices of clerk of the municipal and traffic courts in New Orleans;

While it is true that the Division of...