The opinion
BREJEAN BALANCIER * NO. 2024-CA-0154
VERSUS *
COURT OF APPEAL
SEWERAGE & WATER *
BOARD OF NEW ORLEANS FOURTH CIRCUIT
*
STATE OF LOUISIANA
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APPEAL FROM
CITY CIVIL SERVICE COMMISSION ORLEANS
NO. 9102
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Judge Daniel L. Dysart
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(Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Nakisha
Ervin-Knott)
Michael G Bagneris
BAGNERIS PIEKSEN & ASSOCIATES, LLC
935 Gravier Street, Suite 2110
New Orleans, LA 70112
COUNSEL FOR PLAINTIFF/APPELLEE
Ashley Ian Smith
Darryl Harrison
Yolanda Y. Grinstead
SEWERAGE AND WATER BOARD OF NEW ORLEANS
625 St. Joseph Street
Room 201
New Orleans, LA 70165
COUNSEL FOR DEFENDANT/APPELLANT
JUDGMENT VACATED AND REMANDED
SEPTEMBER 23, 2024
DLD In this civil service matter, the Sewerage and Water Board of New Orleans
JCL
NEK (“S&WB”) appeals a judgment issued by the Civil Service Commission for the
City of New Orleans (“the Commission”) on December 13, 2023 ordering S&WB
to recalculate back pay and emoluments owed to the plaintiff, Brejean Balancier.
For the reasons that follow, we vacate the Commission’s judgment and remand the
matter to the Commission for further proceedings consistent with this opinion.
BACKGROUND
This case arises out of S&WB’s termination of Ms. Balancier.1 Ms.
Balancier was hired by S&WB in February of 2019. She was terminated
approximately ten (10) months later on October 25, 2019.
Ms. Balancier appealed her termination to the Commission alleging
discrimination and retaliation for reporting what she believed to be illegal activity.
The Commission granted Ms. Balancier’s appeal, finding that she was terminated
for reporting what she believed to be fraudulent/potentially illegal activities in her
department. The Commission ordered that Ms. Balancier be reinstated to her
1 Ms. Balancier was a probationary employee at the time of her termination.
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position with all back pay and emoluments of employment from October 25, 2019
to the date of judgment. Following the Commission’s denial of S&WB’s motion
for reconsideration, it appealed to this Court. On October 19, 2022, this Court
affirmed the Commission’s judgment. Balancier v. Sewerage and Water Bd. of
New Orleans, 22-0255 (La. App. 4 Cir. 10/19/22), 351 So.3d 439.
The parties could not reach an agreement as to the amount of back pay and
emoluments of employment owed by S&WB to Ms. Balancier. The parties’
disagreement revolved around whether the monies earned by Ms. Balancier as an
independent contractor should be considered wages or salary earned by Ms.
Balancier in private employment and whether the amount of back pay owed to her
by S&WB should be offset by the monies she earned as an independent contractor.
On August 31, 2023, S&WB made payment to Ms. Balancier in the gross amount
of $75,691.97.
On September 6, 2023, Ms. Balancier raised objection to S&WB’s
calculations, motioning the Commission to determine the amounts due to her in
back pay and emoluments. The parties appeared before the Commission on
November 13, 2023 and presented their arguments. On December 13, 2023, the
Commission issued a written order ruling: (1) Ms. Balancier was not entitled to
additional back pay for the period between January 24, 2021, when its judgment
became final, and October 19, 2021, when this Court issued its judgment; (2) Ms.
Balancier was entitled to the applicable longevity pay increases that were not
included in the back pay calculation; (3) S&WB was not entitled to credit or offset
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for the income Ms. Balancier received as an independent contractor; and (4) Ms.
Balancier should produce proof (within 10 days) and would be entitled to be
reimbursed for privately procured health insurance premiums she paid between
October 25, 2019 to January 25, 2022. S&WB now appeals from this judgment.
DISCUSSION
On appeal, S&WB raises the following assignments of error: (1) the
Commission erred when it determined that S&WB was not entitled to a credit for
Ms. Balancier’s earnings as an independent contractor when calculating the back
pay due; (2) the Commission erred in ruling on Ms. Balancier’s request without the
legally mandated quorum and in violation of its own rules to conduct business and
appeals; and (3) the Commission erred when it granted the appeal of Ms. Balancier
based on her claims of whistleblower status and retaliation, beyond the scope of its
constitutionally granted jurisdiction.
In a civil service case, a “multifaceted” standard of review applies.
McMasters v. Dep’t of Police, 13-0348, p. 9 (La. App. 4 Cir. 5/15/15), 172 So.3d
105, 113 (citing Walters v. Dep’t of Police, 454 So.2d 106, 113-14 (La. 1984)).
“[T]he review by appellate courts of factual findings in a civil service case is
governed by the manifest error or clearly erroneous standard.” Banks v. New
Orleans Police Dep’t, 01-0859, p. 3 (La. App. 4 Cir. 9/25/02), 829 So.2d 511, 513-
14; See also Stern v. New Orleans City Planning Comm’n, 03-0817, pp. 5-6 (La.
App. 4 Cir. 9/17/03), 859 So.2d 696, 699-700; Russell v. Mosquito Control Bd.,
06-0346, pp. 7-8 (La. App. 4 Cir. 9/27/06), 941 So.2d 634, 639-40. “[W]hen the
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Commission’s decision involves jurisdiction, procedure, and interpretation of laws
or regulations, judicial review is not limited to the arbitrary, capricious, or abuse of
discretion standard.” Id. “Instead, on legal issues, appellate courts give no special
weight to the findings of the trial court but exercise their constitutional duty to
review questions of law and render judgment on the record.” Id. “A legal error
occurs when a trial court applies the incorrect principles of law, and such errors are
prejudicial.” Id. “[A] mixed question of fact and law should be accorded great
deference by appellate courts under the manifest error standard of review.” Id.
La. R.S. 49:113 states: “Employees in the state or city civil service, who
have been illegally discharged from their employment, as found by the appellate
courts, shall be entitled to be paid by the employing agency all salaries and wages
withheld during the period of illegal separation, against which amount shall be
credited and set-off all wages and salaries earned by the employee in private
employment in the period of separation.” Civil Service Rule II, § 11.1 provides
that “restoration shall include, where appropriate, reimbursement for all back
wages and emoluments due and accrued annual and/or sick leave, less an offset for
any wages earned during the period for which back pay was restored.” “In
considering La. R.S. 49:113, this Court has consistently held that an illegally
discharged city employee is entitled to back pay, minus a credit for all monies
received by the employee from other employment during his separation from the
City.” Perry v. Dep’t of Law, 17-0787, p. 6 (La. App. 4 Cir. 4/4/18), 243 So.3d
118, 122; see also Carroll v. New Orleans Police Dep’t, 04 -0122, p. 4 (La. App. 4
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Cir. 9/29/04), 885 So.2d 636, 639; Perkins v. Sewerage and Water Bd., 95-1031
(La. App. 4 Cir. 2/29/96), 669 So.2d 726, 730.
In support of its ruling, the Commission cites to Adams v. Dep’t of Police,
16-0146 (La. App. 4 Cir. 8/10/16), 198 So.3d 257 and Alongi v. Dep’t of Police,
480 So.2d 1001 (La. App. 4th Cir. 1985). Those cases not only stand for the
proposition that La. R.S. 49:113 must be strictly construed. They also specifically
hold that back pay due to a wrongfully discharged employee cannot be offset by
sums the employee received as unemployment compensation.2 As such, Adams
and Alongi are clearly distinguishable from the instant case where Ms. Balancier
earned income as a “gig worker” or independent contractor “with several stores to
deliver groceries and other assorted products” and not from unemployment
compensation.
In reasoning that “monies earned as an independent contractor are not wages
or salaries from private employment,” the Commission also cited to 26 U.S.C. §
3401. That statute, however, falls under the Internal Revenue Code and provides
guidance to employers for the taxes they are required to withhold from wages paid
to employees. Such a definition of wages or salaries for the purpose of
determining employer deductions is not relevant or authoritative under the
circumstances of this case. Accordingly, we find no support for the Commission’s
determination that S&WB is not entitled to a credit for Ms. Balancier’s earnings as
2 Also, in Serpas v. Dep’t of Police, 529 So.2d 138, 139 (La. App. 4th Cir. 1988), this Court
stated: “R.S. 49:113, which authorizes the appointing authority to set off wages and salaries
earned by an employee in private employment in a period of separation against the amount of
back pay due him when he is found to have been wrongfully discharged, does not authorize set
off of unemployment compensation.”
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an independent contractor. The Commission’s finding is contrary to both the law
and jurisprudence.
We now turn our attention to the issue of whether the Commission had a
quorum and the authority to issue a ruling in this matter. The Commission is
constitutionally “vested with broad and general rulemaking and subpoena powers
for the administrative and regulation of the classified service . . .” La. Const. art.
X, § 10(A)(1)(a). The Commission also has the exclusive power and authority to
hear and decide all removal and disciplinary cases. La. Const. art. X, § 12(B). The
Commission is mandated as follows:
A city civil service commission shall exist in each city having a
population exceeding four hundred thousand. The domicile of each
commission shall be in the city it serves. Each commission shall be
composed of five members, who are electors of the city, three of
whom shall constitute a quorum.
La. Const. art. X, § 4(A).
The Commission’s own rules state:
The Commission shall be composed of five members, all of whom are
electors of the City, three of whom shall constitute a quorum for the
transaction of business and appeals. The findings of a majority of
such quorum shall control.
Civil Service Rule II, §1.1.
The First Circuit reversed and remanded a decision of the state civil service
commission where several of the commissioners who heard and voted on a
disciplinary action were no longer in office when the decision was rendered.
Johnson v. Louisiana State Univ., 418 So.2d 667, 668-69 (La. App. 1st Cir. 1982).
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The Court reasoned that when the decision was rendered, a legal quorum no longer
existed. Id.
In the instant case, the Commission initially had a quorum of three
commissioners when it met on November 13, 2023. However, one of the three
commissioners recused himself from the proceedings. Upon his recusal, only two
commissioners were left on the panel and the required quorum for the purpose of
transacting business and hearing appeals no longer existed. Accordingly, under
both La. Const. art. X, § 4(A) and Civil Service Rule II, § 1.1, the Commission
lacked the authority to issue its December 13, 2023 ruling. As such, the judgment
is not valid.
S&WB’s third assignment of error, concerning whether Ms. Balancier’s
appeal based on her claims of whistleblower status and retaliation were beyond the
scope of the Commission’s constitutionally granted jurisdiction, is not now
properly before this Court.
CONCLUSION
For the above and foregoing reasons, the Commission’s December 13, 2023
judgment is vacated as invalid. Furthermore, this matter is remanded to the Civil
Service Commission for further proceedings consistent with this opinion.
JUDGMENT VACATED AND REMANDED
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