APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 750-170, DIVISION
"L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, JOYLE PERTUIT James F.
Willeford Reagan L. Toledano
COUNSEL FOR DEFENDANT/APPELLEE, JEFFERSON PARISH SCHOOL BOARD
Michael G. Fanning Glenn D. Price, Jr.
composed of Judges Robert M. Murphy, Stephen J. Windhorst,
and Hans J. Liljeberg.
M. MURPHY JUDGE.
case arises from a dispute between plaintiff, Joyle Pertuit,
and the Jefferson Parish School Board (the "JPSB")
concerning the computation of retirement benefits for
Jefferson Parish school bus drivers under La. R.S. 17:495 and
La. R.S. 17:497. The dispute centers on the JPSB's
classification of "operational pay" and whether
that portion of a school bus driver's "operational
pay" that exceeds his actual dollar-for-dollar operating
expenses should be re-classified as "earnable
compensation" for purposes of calculating a school bus
operator's pension contributions. For the following
reasons, we affirm the trial court's grant of summary
judgment in favor of the JPSB, thereby dismissing Mr.
Pertuit's class action suit, with prejudice, finding that
no genuine issues of material fact exist and that, as a
matter of law, the JPSB's operational pay policy is in
compliance with the applicable statutes.
BACKGROUND AND PROCEDURAL HISTORY
are no genuine issues of material fact in dispute. Mr.
Pertuit, a retired school bus operator, was employed by the
JPSB for over thirty years, and was the owner and operator of
the bus he drove. During his employment, as required by La.
R.S. 17:496 and La. R.S. 17:497,  Mr. Pertuit received two
forms of compensation: (1) a "salary, " which
compensated him for the labor of driving his bus, and was
based on his years of service driving the school bus and his
years of experience; and (2) "operational pay, "
which was a cents-per-mile rate of compensation for
reimbursement of expenses associated with his owning and
operating the school bus, and was based on the number of
miles he drove.
required by La. R.S. 17:497, the JPSB utilizes the
"standard mileage rate method" as a means of
reimbursing its school bus operators, such as Mr. Pertuit,
for their operational expenses. The JPSB uses two
sub-classifications of operational pay: state operational
pay, which is funded by the state; and parish operational
pay, which is locally funded. The JPSB classified payments made
to Mr. Pertuit for the first 50 miles of his daily route as
"state operational pay, " and payments made to him
for every mile driven over 50 miles on his daily route as
"parish operational pay." Mr. Pertuit's state
operational pay and his parish operational pay were
identified separately on his payroll statements and were paid
separately from his salary as mandated by La. R.S.
17:496(F). The total amount of operational pay
received by Mr. Pertuit for any given payroll period was
equal to a combination of his state operational pay plus his
parish operational pay. It is undisputed that the total
amount of operational pay that Mr. Pertuit received each
payroll period exceeded the minimum rate schedule for
compensation of operational expenses set forth in La. R.S.
school bus operator for the JPSB, Mr. Pertuit was a member of
the Louisiana School Employees Retirement System
("LSERS"). For each pay period during Mr.
Pertuit's employment, the JPSB deducted from his salary
an amount equal to Mr. Pertuit's required contributions
to the retirement system. LSERS retirement benefits are
calculated based on an employee's "earnable
compensation, " which is defined by La. R.S.
11:1002(12), as follows:
"Earnable compensation" means the full amount
earned by an employee for a given pay period. Earnable
compensation shall not include operating expenses, the cost
of any insurance paid by the employer, or any allowance for
expenses authorized and incurred as an incident of
employment, nor payments in lieu of unused sick or annual
leave. Earnable compensation shall include pay received by
school bus drivers for school-related extracurricular
years, the JPSB reported only a school bus operator's
salary to LSERS. However, following its increase of the
school bus operators' salary and operational pay, in
September 2007 the JPSB began reporting the bus drivers'
total operational pay as "earnable compensation"
and made pension contributions to LSERS based on this amount.
In December 2007, LSERS informed the JPSB that its inclusion
of the bus drivers' operational pay as a part of their
"earnable compensation" was in violation of La.
R.S. 11:1002(12), which specifically excludes any form of
operating expenses. Following notification of its error by
LSERS, the JPSB advised Mr. Pertuit (as well as all other
JPSB school bus operators), that effective January 15, 2008,
his operational would be no longer be reported to LSERS as
"earnable compensation, " and, consequently, no
portion of his operational pay would be considered in the
calculation of his retirement benefits. From January 2008
through the date of his retirement on October 1, 2012,
neither Mr. Pertuit's state operational pay nor his
parish operational pay were included in the computation of
his "earnable compensation" for retirement
contribution purposes; the JPSB has made pension
contributions to all of its school bus operators solely on
the amount of salary paid.
29, 2015, Mr. Pertuit filed the instant class action law suit
against the JPSB and LSERS (on behalf of himself and
"all other similarly situated persons"), seeking a
declaratory judgment in favor of school bus operators that
pension contributions are due on all payments made by the
JPSB to school bus operators that exceeded the fixed payment
schedule set forth in La. R.S. 17:497. Mr. Pertuit avers that
the JPSB pays its school bus operators operational pay that
exceeds the actual amount needed to compensate operators for
the expenses associated with owning and operating their
buses. According to Mr. Pertuit, the amount of operational
pay that exceeds the operators' actual expenses is, in
actuality, "salary" upon which retirement benefits
should be calculated. Consequently, Mr. Pertuit's suit
seeks a recalculation of his retirement benefits which
include his parish operational pay as "salary" and
part of his "earnable compensation" for retirement
response, the JPSB filed a motion for summary judgment
seeking dismissal of Mr. Pertuit's request for
declaratory relief on the basis that, pursuant to La. R.S.
17:81(U), the JPSB is vested with the sole authority to
"prescribe the duties and fix the salaries" of its
employees, including the salaries of its school bus
operators. Citing Louisiana Assoc. of Educators
v. St. Tammany Parish School Bd., 430 So.2d 1144, 1149
(La.App. 1 Cir. 1983), the JPSB argued that any decisions it
makes pursuant to this statutory authority are presumed by
law to be correct and, unless in conflict with or in
derogation of applicable state law, a district court lacks a
legal basis to interfere with the JPSB's administrative
and executive decisions to fix and classify the compensation
it pays to its employees.The JPSB further argued that
because its "operational pay" policy in the instant
case complies with the applicable provisions of La. R.S.
17:497, which governs operational pay for owners/operators of
school buses, the trial court lacked a legal basis upon which
to grant the declaratory relief sought by Mr. Pertuit or to
otherwise set aside or interfere with the JPSB's
decisions concerning how it fixes and classifies the
compensation it pays to its school bus
operators. Additionally, the JPSB argued that La.
R.S. 17:495 clearly states that the schedule provided in La.
R.S. 17:497 contains the minimum amount prescribed for a
school bus operator's operational pay, and thus, the JPSB
has opted to pay more than the minimum amount required.
opposition, Mr. Pertuit averred that, pursuant to La. R.S.
11:1002(12), the JPSB is required to make pension
contributions on the full amount paid to a school bus
operator less any paid compensation for "operating
expenses" or any allowances for expenses authorized and
incurred. Mr. Pertuit argued that La. R.S. 17:497 mandates
the payment of compensation to school bus operators under a
schedule of daily fixed rates per mile for a minimum of 180
days (i.e., the school year), and does not authorize
the school board to alter the fixed mileage rate set forth in
the statute. Mr. Pertuit claimed that, in this case, the JPSB
unlawfully altered and arbitrarily increased the mileage rate
for payment of operational expenses by $.55 per mile over the
per-mile amount fixed by La. R.S. 17:497. Mr. Pertuit argued
that it was unlawful for the JPSB to arbitrarily classify or
label the payments that exceeded the fixed rates set forth in
La. R.S. 17:497 (or which exceeded the actual operating
expenses incurred by bus drivers), as payment of
"operating expenses" solely for purposes of
avoiding making pension contributions on that amount, since
only "operating expenses" are excluded from
earnable compensation under La. R.S. 11:1001(12). According
to Mr. Pertuit, this method of calculating operational pay
constitutes a poorly-veiled attempt to circumvent state law
and deprives Jefferson Parish school bus operators of the
full amount of their earned retirement pay.
JPSB's motion for summary judgment came for hearing on
March 20, 2017. Finding that no genuine issue of
material fact existed, the trial judge rendered judgment
granting summary judgment in favor of the JPSB and against
Mr. Pertuit dismissing his claims, with prejudice. On March
29, 2017, the trial court issued written reasons for
from the March 20, 2017 judgment that Mr. Pertuit timely
filed the instant appeal.
Pertuit avers the trial court erred in the following
respects: (1) in interpreting that, pursuant to the
provisions of La. R.S. 11:1002(12), La. R.S. 17:496 E and F,
La. R.S. 17:497, and La. R.S. 17:498, "operational
pay" is synonymous with "operational
expenses;" (2) in finding that all compensation paid to
school bus operators on a cents-per-mile basis pursuant to
La. R.S. 17:497 is for reimbursement of expenses incurred to
operate the bus and, as such, are exempt from "earnable
compensation" for purposes of calculating retirement
benefits, when the compensation exceeds the operator's
actual operating expenses; (3) in failing to find that the
cents-per-mile rate of compensation set forth in La. R.S.
17:497 prescribes a fixed rate that cannot be exceeded or
subsidized by local school boards; and (4) in failing to find
that the applicable statutes (namely, La. R.S. 11:1002(12),
La. R.S. 17:495 though La. R.S. 17:498) are ambiguous because
they can be interpreted to require compensation be paid to
school bus operators not only as reimbursement of their
actual operating expenses, but also as remuneration for their
services of driving the bus.
motion for summary judgment is a procedural device used when
there is no genuine issue of material fact for all of part of
the relief prayed for by a litigant. Dunn v. City of
Kenner, 15-1175, p. 15 (La. 1/27/16), 187 So.3d 404,
412. A motion for summary judgment is reviewed on appeal
de novo, with the appellate court using the same
criteria that govern the trial court's determination of
whether summary judgment is appropriate; i.e.,
whether there is any genuine issue of material fact, and
whether the moving party is entitled to judgment as a matter
of law. Reynolds v. Bordelon, 14-2371, p. 3 (La.
6/30/15), 172 So.3d 607, 610.
school bus operators in Louisiana must receive two forms of
compensation: (1) a salary for the services provided in
operating the bus pursuant to La. R.S. 17:496; and (2)
compensation for reimbursement of expenses attendant to
owning and operating the school bus pursuant to La. R.S.
17:497. Louisiana law mandates that contributions to a school
bus operator's pension plan shall be based solely on his
total "earnable compensation" as defined in La.
R.S. 11:1002(12) as "the full amount earned by an
[operator]" and "shall not include operating
expenses." La. R.S. 11:1002(12). Consequently, payments
made by local school boards to school bus operators as
compensation for reimbursement of operating expenses are not
included as part of their "earnable compensation"
for retirement purposes. Id.
first two assignments of error, Mr. Pertuit avers that the
trial court erred in its statutory interpretation of La. R.S.
11:1002(12) and La. R.S. 17:496, La. R.S. 17:497, and La.
R.S. 17:498, by finding that "operational pay" is
the statutory equivalent to "operational expenses,
" and in finding that all compensation paid by the JPSB
to its school bus operators, which the JPSB categorized as
"operational pay, " was for reimbursement of
operational expenses and, as such, excluded from the
calculation of their pension contributions. Mr. Pertuit
argues that "operational expenses" and
"operational pay" are not synonymous, and that the
JPSB's arbitrary classification of payments made to
operators that exceed the actual expenses they incur to
operate their buses as "operating expenses, " and
its failure to pay pension contributions on this excess
amount, is in violation of the applicable statutes and denies
retired operators their lawful pensions. Moreover, Mr.
Pertuit posits that, when read in pari materia, La.
R.S. 17:496 and La. R.S. 14:497 require that a school bus
operator's operational pay be determined by using an
actual expense method of reimbursement and that any portion
of an operator's operational pay ...