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Dove v. Plaquemines Parish Civil Service Commission

Court of Appeals of Louisiana, Fourth Circuit

October 11, 2017

PAULA C. DOVE
v.
PLAQUEMINES PARISH CIVIL SERVICE COMMISSION

         APPEAL FROM PLAQUEMINES PARISH CIVIL SERVICE COMMISSION NO. 16-005

          Jay Ginsberg COUNSEL FOR DEFENDANT/APPELLANT.

          Michael E. Kirby 126 Dickson Drive Leigh Melancon Kirby Apt. A Belle Chasse, COUNSEL FOR PLAINTIFF/APPELLEE.

          (Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew Woods).

          Rosemary Ledet Judge.

         This is a civil service commission case. This case is unusual in two respects. First, the employee, Paula Dove, was employed by the Plaquemines Parish Civil Service Department ("CSD"); the CSD's Appointing Authority is the Plaquemines Parish Civil Service Commission (the "Commission").[1] The Commission thus has the dual role of being the constitutionally created, administrative board that heard the underlying appeal and the Appointing Authority.[2]

         Second, the employee, Ms. Dove, was removed as a result of the Plaquemines Parish Council (the "Council") defunding her position. In response to the Council's action, the Appointing Authority instructed that a layoff process be implemented. As a result of the purported layoff, Ms. Dove was removed from her position. Ms. Dove appealed the layoff action to the Commission. The Commission found that the Appointing Authority failed to meet its burden of proving that Ms. Dove's removal was a layoff and thus ordered her reinstated to her position with full back-pay. From that decision, the Appointing Authority appeals to this court. For the reasons that follow, we affirm the Commission's decision.

         FACTUAL AND PROCEDURAL BACKGROUND

         On July 6, 2015, Ms. Dove became a full-time employee of the Plaquemines Parish Government ("PPG"). Her first position was in the Finance Department as a secretary, a classified civil service position. From June 28, 2016, to July 12, 2016, the CSD posted an advertisement to PPG's employees for the position of Civil Service Administrator, also a classified civil service position. Ms. Dove applied for the position; she and two other applicants interviewed for the position. Because she was the highest scoring applicant, she was selected.

         To facilitate Ms. Dove's transfer from the Finance Department to the CSD, the CSD's Director, Ms. Barrois, sent a memorandum, dated July 22, 2016, to the Plaquemines Parish President, Edward Theriot. Mr. Theriot signed the memorandum, approving Ms. Dove's transfer. On August 1, 2016, Ms. Dove began work as a Civil Service Administrator.

         At the time of Ms. Dove's transfer to the CSD, the CSD had three employees-two Civil Service Administrators (Ms. Dove and another employee) and a CSD Director (Ms. Barrios). The CSD also had a fourth position that was vacant (a scanning clerk position). The two Civil Service Administrators reported directly to the Director.

         On September 8, 2016, slightly over a month after Ms. Dove's transfer to the CSD, the Council adopted, and the Parish President signed, Ordinance No. 16-97 (the "Ordinance"). The preamble of the Ordinance stated that it was being offered "due to reductions in the 2016 operating revenue" and "after a review of the 2016 Manpower Structure was performed." The Ordinance expressly referenced and defunded "Civil Service Administrator 535-1162-02"-Ms. Dove's unique employee job number. In response to the Ordinance, the Commission, at its September 23, 2016 meeting, adopted the following motion: "Ordinance 16-97 passed by the Plaquemines Parish Council deleted the funding for personnel in the Civil Service Department. Because we have not received notice from the Plaquemines Parish Council instructing how they want to process the vacancy incurred by Ordinance 16-97, the director [Ms. Barrois] is instructed to initiate the layoff process."

         Attempting to implement the layoff process set forth in Plaquemines Parish Civil Service Rule XIII, Section 1.1, [3] Ms. Barrois prepared a spreadsheet comparing the overall performance evaluation scores of the two Civil Service Administrators. After determining that Ms. Dove had the lowest overall average score, Ms. Barrois prepared a letter (the "Notification of Layoff") to inform Ms. Dove of the layoff. The letter, dated September 26, 2016, read as follows:

The Plaquemines Parish Council passed Ordinance Number 16-97 at its meeting on September 8, 2016 un-funding the filled Civil Service Administrator position number 535-1162-02. The Finance Department has notified me they have removed to [sic] funding form Civil Service Department salary budget. I have asked the Council Secretary to instruct me in writing how the Council wants to process the vacancy in order to remove the employee from the filled position. As of today's date, I have not received a reply.
As a classified employee of the Plaquemines Parish Civil Service System, our Rules only allow removing an employee from the service under Rule X Disciplinary Actions and Rule XIII Layoffs. You have not had any violations to warrant disciplinary actions under Rule X. Therefore, the Civil Service Commission has instructed me to process a layoff of a Civil Service Administrator in accordance with Rule XIII.
I have reviewed both Civil Service Administrators' average service ratings, and you were determined to be the employee having the lowest average service rating. I regret to inform you that you will be laid off at close of business October 8, 2016.
All layoff actions will be taken in accordance with Rule XIII of the Civil Service Rules. . . . Permanent employees who are negatively impacted by the application of these rules may have the right to file an appeal to the Civil Service Commission in accordance with Rule XIII. . . . (Emphasis in original).

         The last paragraph of the letter reads as follows: "I regret that these layoff actions are necessary to comply [with] the Ordinance 16-97 adopted by the Parish Council and that you are affected by it."

         Ms. Dove appealed to the Commission. On December 6, 2016, a hearing was held before a Hearing Examiner appointed by the Commission.[4] On February 1, 2017, the Commission granted Ms. Dove's appeal, finding that the Appointing Authority failed to meet its burden of proving that Ms. Dove's removal was a layoff. In so finding, the Commission reasoned that the September 26, 2016 letter-the Notification of Layoff- "prima facie fails to establish that the Appellant [Ms. Dove] was the subject of a layoff properly initiated and implemented." Continuing, the Commission noted that "the evidence is overwhelming in favor of granting the Appellant's appeal." Indeed, the Commission enumerated the following undisputed facts that it found supported its decision:

• [A]t the time that Ordinance 16-97 was introduced, the Appellant's position was approved by Ms. Barrois, the Finance Department, and the Parish President, and that the Appellant's position was budgeted and funded for the 2016 budget.
• [P]rior to the introduction of Ordinance 16-97, Ms. Barrois and the CSD in fact had a position that was unfunded for the 2017 budget, which could have been eliminated.
• [A]s a matter of course the Council was not defunding budgeted, funded positions to deal with the Parish's fiscal issues.
• [P]rior to the introduction of Ordinance 16-97, neither Ms. Barrois as the Director of the CSD, nor the Civil Service Commission, nor the Parish President nor anyone in his administration was contacted or consulted regarding the elimination of any position in the CSD.
• [T]he Council does not have the authority to unilaterally terminate a Civil Service employee. Further, there was no evidence educed at the hearing whatsoever that the Council had the authority to unilaterally defund the Appellant's budgeted, funded position in the manner that it did.[5]
• [T]he proper procedures and protocols for initiating and instituting layoffs were not followed.[6]
• [B]ecause of the Council's unilateral action eliminating the Appellant's position, the CSD is unable to ...

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