Johnston v. Department of Police

Citations: 715 So. 2d 12; 97 La.App. 4 Cir. 2748; 1998 La. App. LEXIS 1226; 1998 WL 256706Docket: No. 97-CA-2748

Court: Louisiana Court of Appeal; April 22, 1998; Louisiana; State Appellate Court

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The New Orleans Police Department's appeal was rejected by the Civil Service Commission, which found the department liable to former officer Diane Johnston for back pay related to her overturned disciplinary suspensions. Johnston had initially faced twenty-eight days of suspension, three of which were overturned, and one was reduced, leading to the restoration of twenty-three days of back pay. After the Commission’s decisions between January and June 1997, the police department did not appeal and delayed payment. Johnston expressed concerns over previous delays in receiving back pay. At an August 1997 meeting, the Commission noted these delays and required the police department to ensure payment by its next meeting, warning of potential sanctions for non-compliance. In September 1997, Johnston filed a request for a hearing due to ongoing non-payment. By October 1997, the Commission determined the police department was legally responsible for all amounts owed to Johnston, ordering full payment by November 19, 1997, which included an additional $300 in sanctions for the delays. Failure to comply would result in further penalties.

The police department is appealing a ruling regarding the payment of back salaries and wages to employees illegally discharged, as stipulated by La.Rev.Stat. 49:113. The statute entitles such employees to receive all withheld wages during their period of illegal separation. The Supreme Court's decision in Hebbler v. New Orleans Fire Department affirmed that employees are entitled to recover state supplemental pay withheld due to illegal discharge, reinforcing that the intent of the law is to make reinstated employees whole.

The police department argues that La.Rev.Stat. 33:2218.9, enacted in 1982, was intended to overrule Hebbler, but this claim is dismissed as meritless. This statute allows for the approval of back supplemental salary payments from a state board and does not preclude employing agencies from paying these amounts with the possibility of reimbursement from the state. The foundational statute supporting the Hebbler decision remains effective.

Additionally, the police department contends that overruling Hebbler is warranted on policy grounds, citing potential undue burdens from minor civil service infractions. This argument is also rejected, with emphasis placed on the department's delays in processing Ms. Johnston's entitlement to back pay, which likely led to the Commission's rulings.

The department disputes the Commission's sanctions, claiming good faith efforts to secure state funding for back pay rather than paying it directly. However, this argument lacks credibility, particularly given the absence of a valid explanation for the delays in contacting the state. Although the Commission's rules allow for attorney’s fees due to the city's failure to comply with timely wage restoration, they do not permit penalties to be paid to the employee, as was done in this case.

La.Rev.Stat. 49:950 et seq., Louisiana’s Administrative Procedure Act, does not aid Ms. Johnston in securing an award. Article 10.10(4) of the Louisiana Constitution provides the Commission with extensive rulemaking and subpoena powers concerning the classified service. Judicial precedents indicate that courts may include attorney's fees in orders restoring back pay to classified employees, as seen in cases like Reimer v. Medical Center of Louisiana and Greenleaf v. DHH. The Commission is deemed capable of awarding attorney’s fees, even if mistakenly labeled as sanctions, particularly when an employee has been unreasonably delayed in receiving back pay. The ruling of the Commission is affirmed but amended to remove the $300.00 sanction against Ms. Johnston and instead grant her $300.00 in attorney’s fees directly. Additionally, it is confirmed that Ms. Johnston’s back pay encompasses her departmental wages, overtime, and state-allocated supplemental pay under La.Rev.Stat. 33:2218.1.