CLARK, Justice.
We granted the writ of the City of Bossier City (hereinafter "City") to determine the proper interpretation of La. R.S. 33:2501(C)(1); specifically, whether the statutory authority of the Bossier City Municipal Fire and Police Civil Service Board (hereinafter "Board") to modify discipline is conditioned upon a finding the appointing authority acted in bad faith or without cause. After our review, we find a municipal fire and police civil service board has the statutory authority to review and modify the discipline imposed, even when the appointing authority acts in good faith for cause. For the reasons discussed below, we affirm the decision of the court of appeal.
On November 19, 2009, Officer Phillip Vernon, a permanent police officer with the Bossier City Police Department, received a written notice of his termination from employment with the City. Officer Vernon's termination was based on an internal affairs investigation which concluded he was in violation of two sections of the police department's Code of Conduct. He appealed the decision to the Board.
The Board held an evidentiary hearing on February 3 and 4, 2010. On February
Both the City and Officer Vernon appealed the Board's decision to the 26th Judicial District Court in Bossier Parish, which consolidated the appeals for review. The City argued the Board was without authority to modify the discipline absent a finding the appointing authority acted in bad faith or without cause.
Finding the City's contention was contradicted by the provisions of La. R.S. 33:2501(C)(1), which sets forth the Board's authority after the investigation provided for in the statutes, the district court held the Board appropriately utilized its statutory authority to modify the order of the appointing authority. Reviewing Officer Vernon's claims, the district court found no manifest error in the factual findings of the Board. The district court concluded, therefore, the claims raised by each party were without merit and affirmed the Board's ruling. Both parties appealed.
On appeal, the appellate court likewise found La. R.S. 33:2501(C)(1) provided the Board with "the authority and discretion to modify Vernon's discipline, if the modification was deemed appropriate." City of Bossier City v. Vernon, 46,517, 46,518, p. 9 (La.App. 2 Cir. 11/2/11); 78 So.3d 153, 159.
Both parties again sought review by filing writs in this court. We granted the City's writ to review the proper interpretation of the statute at issue and the lower courts' rulings. City of Bossier City v. Vernon, 2012-0078 (La.3/30/12); 85 So.3d 100.
The sole issue is the proper interpretation of La. R.S. 33:2501(C)(1). Thus, the case presents us with a question of law which is reviewed by this court under a de novo standard of review. First Nat. Bank, USA v. DDS Const., LLC, 2011-1418, p. 10 (La.1/24/12); 91 So.3d 944, 951-952; Louisiana Municipal Association v. State, 2004-0227, p. 35 (La.1/19/05); 893 So.2d 809, 835. A de novo review means the court will render judgment after its consideration of the legislative provision at issue, the law and the record, without deference to the legal conclusions of the tribunals below. This court is the ultimate arbiter of the meaning of the laws of this state. First Nat. Bank, 2011-1418, p. 11; 91 So.3d at 952; Broussard v. Hilcorp Energy Co., 2009-0449, p. 3 (La.10/20/09); 24 So.3d 813, 816; Cleco
La. R.S. 33:2501(C)(1) provides:
The City argues the lower courts erred in concluding that a civil service board may modify discipline previously imposed by an appointing authority without first finding the appointing authority acted in bad faith or without cause. The City urges that to allow the Board to modify discipline without the Board finding bad faith or the absence of cause would allow the Board to ignore La. R.S. 33:2501(A) and (B)(1) and (2).
The City essentially maintains La. R.S. 33:2501(C)(1) provides authority for action by the Board only under two scenarios. First, if the evidence is conclusive, then the Board may affirm the action of the appointing authority. Second, if the Board finds that the action of the appointing authority was not taken in good
Officer Vernon disagrees. He agrees with the City that the Board may affirm the action of the appointing authority if the evidence is conclusive the employer acted in good faith for cause. He also agrees the statute provides the authority for the Board to reinstate or reemploy the person who was disciplined in bad faith or without cause. However, Officer Vernon interprets the last sentence of the subsection as allowing the Board to consider the severity of the penalty, even in cases where the appointing authority has acted in good faith for cause, in accordance with the statutory guidelines.
Our review of the statute at issue is guided by the following well-established rules of interpretation:
In addition to our focus on the language of the statute, we must also consider laws on the same subject matter.
Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 2006-0582, p. 10 (La.11/29/06); 943 So.2d 1037, 1045
Considering the statute, we find the clear and unambiguous language of La. R.S. 33:2501(C)(1) authorizes the Board to modify the discipline of the appointing authority even if the discipline was imposed in good faith for cause. The first sentence of La. R.S. 33:2501(C)(1) provides, if the evidence is conclusive, "the board
Equally as clear, the legislature in the second sentence mandates, by its use of the word "shall," that the Board reinstate or reemploy a person upon whom discipline has been imposed in bad faith or without cause. The Board is given the discretion under these facts to order the reinstatement or reemployment to be retroactive "... if the Board so provides...."
Finally, the legislature in the third sentence authorizes the Board to modify the disciplinary action taken by the appointing authority to "such other lesser punitive action that may be appropriate under the circumstances." It is clear this provision refers to the authority of the Board to modify disciplinary actions taken in good faith for cause because the legislature otherwise
We find further support for our interpretation in the statute's legislative history, review of other civil service systems in our state, and prior decisions of this court.
The municipal fire and police civil service system was proposed by the legislature in 1940 Acts, No. 253 for municipalities with a population of more than 16,000 and less than 100,000. Section 14 of Act 253, with regard to the authority of the Board to review the disciplinary actions of the appointing authority was very clear. The portion that corresponds to the third sentence of the statute at issue stated:
1940 Acts, No. 253 § 14 (emphasis added). A subsequent amendment expanded the coverage of the civil service system to municipalities having a population of more
This prior legislation was repealed and a municipal fire and police civil service system substantially similar to the present day system was created by the legislature in 1944 Acts, No. 102. See Hoppe v. City of Shreveport, 340 So.2d 1314, 1316 (La. 1976). The Board's authority to review the appointing authority's disciplinary actions at that time provided: "The Board
Pursuant to 1952 Acts, No. 302, the provisions of the municipal fire and police civil service system were incorporated into the 1921 Louisiana Constitution almost verbatim as Art. 14, § 15.1 after the citizens of Louisiana approved the act in the general election that November. Hoppe, 340 So.2d at 1316; Trosclair v. Houma Municipal Fire and Police Civil Service Board, 252 La. 1, 2, 209 So.2d 1, 2 (La.1968), overruled in part on other grounds, Bowen v. Doyal, 259 La. 839, 253 So.2d 200 (La.1971); In re Kelly, 224 La. 574, 576 n. 1, 70 So.2d 130 n. 1 (La.1954). The provisions applicable to appeals by employees to the Board, consistent with the present day La. R.S. 33:2501 were found at 1921 Louisiana Constitution Art. 14, § 15.1(31). At that time, the Board's authority to modify disciplinary actions of the appointing authority was substantially similar to its present day form: "The Board
This court interpreted these provisions of the 1921 Louisiana Constitution in Marchiafava v. Baton Rouge Fire and Police Civil Service Board, 233 La. 17, 96 So.2d 26 (La.1957). Officer Marchiafava was a member of the Baton Rouge Police Department whose employment was terminated. He sought administrative review with the Baton Rouge Municipal Fire and Police Civil Service Board, which affirmed the dismissal. He subsequently sought judicial review of the Board's action in the district court. The district court found the officer was guilty of the prohibited conduct, but did not believe the activity warranted dismissal. Marchiafava, 233 La. at 24, 96 So.2d at 28. The district court reversed, set aside the officer's dismissal, restored him to duty, and remanded the matter to the Board to decide an appropriate period of suspension without pay. Marchiafava, 233 La. at 18-20, 96 So.2d at 26-27.
This court held the district court exceeded its authority, finding the Board, and not a reviewing court, had the authority under Art. 14, Section 15.1(31) to decide not only that discipline was warranted, but also that the discipline was commensurate with the violation. Marchiafava, 233 La. at 25, 96 So.2d at 29 ("... the Board had the right to affirm the governing authority's dismissal of plaintiff; and clearly, in so ruling, it acted `in good faith for cause' (just as the district judge found). Whether such cause was sufficient to justify the dismissal was
In the transition from the Louisiana Constitution of 1921 to the present 1974 Louisiana Constitution, numerous sections of the previous constitution were continued as statutes. Most of the provisions of Art. 14, § 15.1 of the 1921 Louisiana Constitution, relating to the municipal fire and police civil service system, were continued as statutes. The 1974 Louisiana Constitution, Art. 10, § 18 provides,
The 1974 Louisiana Constitution, Art. 10, § 16 also provides:
The fire and police civil service laws for municipalities with a population over 7,000 and less than 13,000 are found in La. R.S. 33:2531 et seq.; for municipalities with a population over 13,000 and less than 250,000, are found in La. R.S. 33:2471 et seq.; and for municipalities with a population over 250,000 and less than 500,000, is found in La. R.S. 33:2591.
From this recitation of the legislative history of La. R.S. 33:2501(C)(1), it is clear, whether expressed as "... in lieu of affirming ..., may modify ...;" "...shall have the power and authority to modify...;" or "... may modify ...," the legislature has consistently provided the Board with the authority to modify the disciplinary action taken by the appointing authority, even when the discipline has been imposed in good faith for cause.
Although there was a provision for a city civil service for municipalities having a population over 100,000 in the original 1921 Louisiana Constitution in Art. 14, § 15, the state civil service system, like the municipal fire and police civil service, began as a statute which was then incorporated into the state constitution. See 1940 Acts, No. 171; 1940 Acts, No. 172;
This court was provided the opportunity to interpret the appropriate authority of the State or City Civil Service Commissions under that constitutional provision in Brickman v. New Orleans Aviation Board, 236 La. 143, 107 So.2d 422 (La. 1958). Brickman was dismissed from her job with the New Orleans Aviation Board. She appealed to the Civil Service Commission for the City of New Orleans ("Commission"), the equivalent of the Board in the instant case, which affirmed her termination. This court on original hearing affirmed.
On rehearing, however, a majority of the court found Brickman was entitled to reinstatement to her position, as the appointing authority acted without legal cause in terminating her employment. Brickman, 236 La. at 152, 107 So.2d at 425. Although the majority of the court found no legal cause to support her termination, the court agreed with Justice McCaleb's dissent on Brickman's contention that the Commission should have reviewed whether dismissal was a proper punishment. The Brickman majority stated:
In his dissent, Justice McCaleb explained that the city civil service commission erred in failing to make an independent finding the penalty was proper. Brickman, 236 La. at 176-177, 107 So.2d at 434. Citing the appeal provisions in 1921 Louisiana Constitution, Art. 14, § 15(O)(1), Justice McCaleb stated:
Brickman, 236 La. at 176-177, 107 So.2d at 434 (McCaleb, J., dissenting). This explanation of the function of the city civil service commission or board exercising its review power was not only joined by the court's majority, but also by other dissenting and concurring justices.
In the transition from the former constitution to the present constitution, 1921 Louisiana Constitution, Art. 14, § 15(A)(2) and (3) became 1974 Louisiana Constitution, Art. 10, § 1(A) and (B).
In Walters v. Dept. of Police of City of New Orleans, 454 So.2d 106 (La. 1984), this court reviewed the proper standards for review of the appointing authority's disciplinary action for both the city civil service commission, or board (in this case, again, the Civil Service Commission for the City of New Orleans), and the courts, after the transition to the current state constitution. Citing to Justice McCaleb's dissent in Brickman, supra, we held:
Walters, 454 So.2d at 113 (citation omitted). In remanding the matter to the Commission, the court noted the discretion of the Commission "to determine whether there is legal cause for discipline and to mete out appropriate punishment when warranted." Walters, 454 So.2d at 116. Clearly, the court's interpretation of the administrative review function of the Commission or Board had not changed. In reviewing the disciplinary action of an appointing authority, a civil service commission or board must decide not only if a disciplinary action has been made in good faith for cause, but additionally must make an independent assessment whether the particular punishment imposed is warranted.
Subsequent cases have held similarly when the reviewing agency has been the state civil service commission, a city civil service commission, or the state police commission. In Bannister v. Department of Streets, 1995-0404 p. 7 (La.1/16/96); 666 So.2d 641, 646, the court noted the power of a city civil service commission "to modify disciplinary action." In discussing the court's judicial review function, the court contrasted the court's authority with the Commission's responsibility to determine whether the disciplinary action is both based on legal cause and commensurate with the infraction. Bannister, 1995-0404, p. 8; 666 So.2d at 647. In Department of Public Safety and Corrections, Office of State Police v. Mensman, 1995-1950, p. 3-4 (La.4/8/96); 671 So.2d 319, 321, we relied on our holding in Walters, supra, to find the State Police Commission's authority "to hear and decide" disciplinary cases included a duty to decide independently from the facts not only whether the appointing authority has good or lawful cause for taking disciplinary action, but also whether the punishment imposed is proper. Finally, in AFSCME, Council #17 v. State ex rel. Dept. of Health & Hospitals, 2001-0422, p. 7 (La.6/29/01); 789 So.2d 1263, 1268, the same holding was applied within the state civil service system.
Our review of other civil service systems within the state shows the position of the commission or board reviewing the disciplinary action of the appointing authority exercises the authority to not only ensure the discipline was imposed in good faith for cause, but to independently ensure that the particular punishment imposed was proper.
In addition to the Marchiafava decision, which concerned an earlier version of the statute presently at issue, this court has recently applied the Walters holding to a case involving a municipal fire and police civil service board. In Evans v. DeRidder Mun. Fire, 2001-2466 (La.4/3/02); 815 So.2d 61, cert. denied, 537 U.S. 1108, 123 S.Ct. 884, 154 L.Ed.2d 779 (2003), the precise question before the court was whether polygraph evidence was admissible at the administrative review hearing, rather than the scope of the Board's administrative review authority. In Evans, a member of the DeRidder city police force was terminated from his employment. The Board upheld his dismissal, as did the district court. The court of appeal, however, reversed and restored the officer to his position, finding the Board did not possess sufficient cause for the termination.
In discussing an appellate court's multifaceted review function, this court cited Walters, supra, recognizing the Board's authority to independently decide not only
The Board does not have the same exclusive constitutional power and authority "to hear and decide" all removal and disciplinary cases, as does the state, city and state police civil service systems. However, the municipal fire and police civil service system has statutory authority, as it was continued in the 1974 Louisiana Constitution as a body of statutes. Within those statutes, we find a similar grant of authority to the Board with regard to its review of disciplinary actions sufficient to justify a result similar to that found in Walters, and cases following.
The statutory duties of the Board include the authority to "conduct investigations and pass upon complaints by or against any officer or employee in the classified service for the purpose of demotion, reduction in position or abolition thereof, suspension or dismissal of the officer or employee, ..." in accordance with the provisions of the municipal fire and police civil service laws. La. R.S. 33:2477(5). The Board also has the authority to "[h]ear and pass upon matters which the mayor, commissioner of public safety, the chiefs of the departments affected by this Part, and the state examiner of the municipal fire and police civil service bring before it." La. R.S. 33:2477(6). In addition, and specifically with regard to corrective and disciplinary actions, the legislature has clearly provided the Board with the authority to take appropriate action. La. R.S. 33:2500(C) provides:
The City argues an appointing authority should have the ability to discipline and dismiss employees as part of its responsibility to effectively manage its workforce. While we understand the force of this argument, the legislature has nevertheless interposed a check on the appointing authority's ability to impose discipline in this and other civil service systems in the state and such a scheme has been in existence for more than six decades. Any amendment to this system, such as is suggested by the City, should be addressed to the legislature, and not to the court.
Based upon our interpretation of La. R.S. 33:2501(C)(1), we find a municipal fire and police civil service board has the statutory authority to modify the discipline imposed by an appointing authority, even if imposed in good faith for cause. Consequently, we affirm the rulings of the courts below, which upheld the Board's action in this case and properly interpreted the statute.
AFFIRMED
GUIDRY, J., concurs in the result and assigns reasons.
Although I concur in the result reached by the majority in this case, given the language of La.Rev.Stat. 33:2501(C)(1), I question whether the legislature actually intended to grant the civil service board the statutory authority to modify discipline when the appointing authority has imposed discipline in good faith and for cause. Because there may be a drafting error in the statute, I would suggest the legislature may wish to revisit this statutory scheme in light of the court's decision today.
