Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Pertuit v. The Louisiana School Employees Retirement System

Court of Appeals of Louisiana, Fifth Circuit

December 27, 2017

JOYLE PERTUIT
v.
THE LOUISIANA SCHOOL EMPLOYEES RETIREMENT SYSTEM AND THE JEFFERSON PARISH SCHOOL BOARD

         ON 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.

          Panel composed of Judges Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg.

          ROBERT M. MURPHY JUDGE.

         This 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.[1] 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.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         There 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, [2] 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.[3]

         As 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.[4] 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.[5] 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."[6] 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).[7] 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. 17:497.

         As a 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 activities.

         For 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.[8] 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.[9]

         On May 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 purposes.[10]

         In 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.[11] 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.[12]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.[13] 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.

         In 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.

         The JPSB's motion for summary judgment came for hearing on March 20, 2017.[14] 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 judgment.

         It is from the March 20, 2017 judgment that Mr. Pertuit timely filed the instant appeal.

         ASSIGNMENTS OF ERROR

         Mr. 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.[15]

         STANDARD OF REVIEW

         A 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.

         DISCUSSION

         By law, 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.

         In his 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.