Freeman v. City of Mobile, Alabama

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

No. 97-6047

FILED

_______________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

07/21/98

D. C. Docket No. 93-0555-AH-M THOMAS K. KAHN

CLERK

CLYDE H. FREEMAN, et al.,

Plaintiffs-Appellants,

versus

CITY OF MOBILE, ALA.,

Defendant-Appellee.

______________________________

Appeal from the United States District Court

for the Southern District of Alabama

______________________________

(July 21, 1998)

Before BIRCH, Circuit Judge, and HILL and KRAVITCH, Senior

Circuit Judges.

BIRCH, Circuit Judge:

Several dozen police officers (the “Appellants”) seek in this

case to force the City of Mobile, Alabama (the “City”) to pay them

overtime compensation under the Fair Labor Standards Act, 29

U.S.C. §§ 201-19 (the “FLSA”), for time they have spent on roll-

call and other pre- and post-shift duties. Appellants also demand

overtime pay from the City on a state law contract claim, based on

a 1969 Alabama law that entitles policemen in Mobile County to

overtime compensation for work in excess of 40 hours per week.

In the district court, Appellants lost their FLSA claims on summary

judgment because the court held that the City was entitled to a

statutory exemption under 29 U.S.C. § 207(k) (the “7(k)

exemption”) and that the Department of Labor’s (the “DOL”’s) no-

docking regulation, 29 C.F.R. § 541.118(a), was invalid as

applied. Appellants also lost their contract claim because the

district court ruled that the act on which their claim was based had

been repealed. On appeal, Appellants argue that the City has not

qualified for a 7(k) exemption, that the Supreme Court’s recent

decision in Auer v. Robbins, __ U.S. __, 117 S. Ct. 905, __ L. Ed.

2d __ (1997), establishes the validity of the no-docking rule, and

2

that the Alabama statute underlying their contract claim is still

good law. Although we agree with the district court that the City is

entitled to a 7(k) exemption, we believe that the pay-docking issue

merits further consideration by the district court in light of Auer,

and we are concerned that Appellants’s contract claim raises

important issues of state law that it would be better for the

Supreme Court of Alabama to decide. Therefore, we AFFIRM IN

PART, REVERSE IN PART, and CERTIFY two state law

questions to the Supreme Court of Alabama.

I. BACKGROUND

Appellants are patrol officers, sergeants, and lieutenants in

the Uniform Services Divisions of the Mobile Police Department

(the “MPD”). As such, the officers are subject to the “Rules and

Regulations” adopted by the Mobile County Personnel Board (the

“Personnel Board”), which has authority under Alabama law to

establish job classification and compensation plans for the MPD.

3

See generally 1939 Ala. Local Acts 470 (“Act 470"). Appellants,

however, are actually in the employ of the City, which is free

under the Personnel Board’s Rules to choose a work period for its

employees.

In 1974, the City Commission adopted Resolution 60-1440

“establish[ing] a Fourteen (14) Day work period for all members of

the Mobile Police Department . . . .” R3-76 at 10. At least in part,

the City adopted this resolution in response to Congress’s

extension of the FLSA in 1974 to cover state and local

governments. Although the Supreme Court subsequently found

Congress’s 1974 amendments to the FLSA unconstitutional, see

National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465,

49 L. Ed. 2d 245 (1976), the City never repealed Resolution 60-

1440. As a result, the Resolution has remained in place through

the Supreme Court’s reversal of Usery in Garcia v. San Antonio

Metro. Transit Auth., 469 U.S. 528, 105 S. Ct. 1005, 83 L. Ed. 2d

4

1016 (1985), and Congress’s subsequent re-extension of the

FLSA.

Following Congress’s re-extension of the FLSA, the

Personnel Board amended its Rules to address “Payment for

Overtime. In Rule 3.1(c), the Personnel Board mandated that:

All employees non-exempt from the provisions of the

Fair Labor Standards Act shall be compensated for

overtime for all hours paid in excess of forty (40) hours

per week at one and one half (1-½) times the

employees’ hourly rate of pay, or in the alternative, shall

be awarded compensatory time in accordance with the

provisions of said Act. . . .

R3-76 at 8. In adopting this rule, the Personnel Board may or

may not have repealed an earlier “local act” passed by the

Alabama state legislature, 1969 Ala. Local Acts 856 (“Act 856"),

which mandated in pertinent part that:

In all counties coming within the purview of this Act, all

policemen employed by any city in the county and all deputy

sheriffs in such counties shall be entitled to one and one-half

(1 1/2) times their hourly wage for each hour worked in

excess of forty (40) hours a week in any one week.

5

Although the Personnel Board has in Rule 3.1(c) required

overtime pay for “non-exempt” City employees, it has not adopted

any Rule specifying those positions which it understands to be

exempt from the FLSA. Moreover, the City continues to have

authority to set its employees’ pay periods and to determine their

work schedules. Pursuant to this authority, the City pays its patrol

officers, sergeants, and lieutenants every other Friday, reflecting a

14-day payroll period. As part of their regular work schedules, the

City’s patrol officers must report for roll call ten minutes before

each eight-hour shift. With this time taken into account, the patrol

officers’ regular work schedule is 81 hours and 40 minutes for ten

work days in a 14-day payroll period. Similarly, the City’s

sergeants and lieutenants also must devote time to roll call before

their 8-hour shifts. In addition, sergeants and lieutenants must, as

part of their regular duties, train, supervise, and discipline their

squads of patrol officers. As a result of these responsibilities, the

City’s sergeants and lieutenants often must perform significant

6

pre- and post-shift activities, causing them to work more than 86

hours within a 14-day payroll period.1 The City does not pay its

patrol officers, sergeants, or lieutenants any overtime

compensation for time spent on roll call; the City pays its patrol

officers time-and-a-half for work over 81 hours and 40 minutes in

a 14-day payroll period (i.e., for work over 80 hours of shifts plus

pre-shift time spent on roll call), but it does not pay its sergeants

or lieutenants any additional compensation for overtime work.

As an additional component of the City’s pay scheme, its

patrol officers, sergeants, and lieutenants are all subject to

disciplinary pay-docking under the MPD’s “General Orders” for a

variety of misbehaviors, including infractions of non-safety rules.

As the district court found, the City has in fact docked the pay of

several sergeants and lieutenants for violations of non-safety

rules. Although the City claims on appeal to have reimbursed

1

Although the precise number of hours worked by the City’s sergeants and lieutenants is

in dispute, we assume for purposes of this appeal that they regularly work, as alleged, for 90

hours within each 14-day payroll period.

7

those sergeants and lieutenants whom it has subjected to non-

safety-related, disciplinary pay-docking, Appellants vigorously

dispute the City’s assertion, and the record on the reimbursement

issue is inconclusive.

In 1993, a number of Mobile’s police officers sought overtime

pay from the City for time spent on roll call. In response to these

officers’ inquiries, the City’s Police Chief issued a memorandum

stating that:

[S]ince the Police Department has an established

work period of at least 7 days (ours is actually 14 days),

the Department is not required to pay overtime

compensation unless you work more than 86 hours

during those 14 days. Because you are regularly

scheduled for only 81 hours and 40 minutes . . . , you

are not entitled to overtime pay for roll call.

R3-76 at 12. In conformance with the Chief’s memorandum, the

City has refused to pay its patrol officers overtime compensation

for time spent on roll call. In addition, the City has continued to

deny overtime compensation to its sergeants and lieutenants.

8

Unsatisfied with the City’s policy, Appellants filed suit against

the City on July 2, 1993, in the district court. Specifically,

Appellants alleged that the City had violated their rights to

overtime and straight pay under the FLSA; Appellants also

claimed that the City had breached their contractual right to

overtime pay under Alabama Local Act 856 and Rule 3.1(c).

In August, 1994, the City moved for summary judgment on

three grounds. First, the City argued that, under the FLSA’s 7(k)

exemption, it is not required to pay overtime compensation to any

member of its police force who does not work more than 86 hours

in a 14-day payroll period. Second, the City contended that it is

not required to pay its sergeants or lieutenants any overtime

compensation whatsoever, regardless of their hours, because they

are “executive” employees. Third, the City maintained that

Appellants are not entitled to overtime compensation as a matter

of contract law because Rule 3.1(c) expressly incorporated the

FLSA’s exemptions and thereby repealed Act 856 by implication.

9

Subsequently, Appellants cross-moved for summary

judgment. Among their asserted grounds for summary judgment,

Appellants argued that (1) the City does not qualify for a 7(k)

exemption because it has not affirmatively and expressly adopted

a 7(k) plan, (2) the City’s sergeants and lieutenants are not exempt

as executive employees because they are subject to non-safety,

disciplinary reductions in pay in violation of the DOL’s no-docking

rule, (3) Act 856 and Rule 3.1(c) both established a contractual

right for Appellants to overtime pay, and (4) at a minimum the

FLSA requires that the City provide straight pay (as opposed to

“time-and-a-half” overtime pay) for work in excess of 40 hours in

any 7-day work week.

On October 27, 1994, the district court entered summary

judgment for the City against Appellants. In doing so, the district

court held that the City was entitled to a 7(k) exemption and that

the no-docking rule was invalid as applied to the City.2 In addition,

2

Specifically, the district court held that the no-docking

rule was invalid because the regulation violated Congress’s

10

the district court rejected the Appellants’s contract claims on the

grounds that Rule 3.1(c) had incorporated the FLSA’s exemptions

and repealed Act 856.

Upon review of the district court’s order on appeal, this court

found sua sponte that the district court had failed to resolve

Appellants’s claim for straight pay. Accordingly, we held that we

lacked subject matter jurisdiction because the district court’s

judgment was not final, and we remanded the case to the district

court. See Freeman v. City of Mobile, No. 94-7171 (11th Cir. Aug.

28, 1996). On remand, Appellants did not contest the City’s

argument that the FLSA does not govern straight pay, and the

district court entered judgment against Appellants on that

remaining issue. With the City’s judgment against them now final,

Appellants have timely appealed to this court.

legislative intent in extending the FLSA to cover state and local

governments by reducing the “public accountability” of such

government’s employees.

11

II. DISCUSSION

On appeal, Appellants advance three arguments that merit

discussion. First, Appellants contend that the City must pay

overtime compensation for all time worked by Appellants in excess

of 40 hours per week because the City has not “affirmatively

adopted” a 7(k) plan. Second, Appellants maintain that the

Supreme Court’s recent decision in Auer has established, contrary

to the district court’s holding, that the Department of Labor’s no-

docking rule is valid; Appellants therefore urge us to hold that the

City’s sergeants and lieutenants do not qualify for the executive

exemption because they are subject to pay-docking. Third,

Appellants argue that Rule 3.1(c) and Act 856 give them a

contractual right to overtime for hours that they work in excess of

40 per week. We examine the district court’s grant of summary

judgment de novo, viewing the evidence in the light most favorable

to Appellants. See Avery v. City of Talladega, 24 F.3d 1337, 1340

(11th Cir. 1994).

12

A. THE 7(k) EXEMPTION

Section 207(k) of the FLSA provides that:

No public agency [engaged in law enforcement

activities] shall be deemed to have violated subsection

(a) of this section with respect to the employment of . . .

any employee in law enforcement activities . . . if—

....

(2) in the case of such an employee to whom a

work period of at least 7 but less than 28 days

applies, in his work period the employee receives

for tours of duty which in the aggregate exceed a

number of hours which bears the same ratio to the

number of consecutive days in his work period as

216 hours . . . bears to 28 days,

compensation at a rate not less than one and one-half

times the regular rate at which he is employed.

29 U.S.C. § 207(k). Thus, if a city government adopts a work

period of 7 to 28 days for its police force, it may require its officers

to work more than 40 hours per week without having to pay

overtime. See Birdwell v. City of Gadsen, 970 F.2d 802, 804 (11th

Cir. 1992). Applying this statutory formula, a city need not pay

overtime unless an employee works more than 86 hours in a 14-

day work period. See 29 C.F.R. §§ 553.230. In determining

13

whether a public agency is entitled to a 7(k) exemption, we

narrowly construe the exception against the employer, and we

require the employer to show by “clear and affirmative” evidence

that it has adopted a work period of between 7 and 28 days. See

Birdwell, 970 F.2d at 805.

To support its claim to a 7(k) exemption, the City cites

Resolution 60-1440, its 14-day payroll period, and the 1993

memorandum from the Mobile Police Chief reaffirming and

explaining Appellants’s work period. To rebut this evidence,

Appellants argue that the City has not adopted any resolution

containing language explicitly adopting a 7(k) compensation plan.

Under our precedents, however, the City does not have to make

any such “affirmative” showing. Rather, it is sufficient that the City

can show, through Resolution 60-1440 and other circumstantial

evidence, that it has adopted a 14-day work period.3 See Birdwell,

3

Appellants also refer at length to a large number of affidavits, many of which were

stricken in whole or in part by the district court, that Appellants contend establish that the City

never intended, before initiation of the present litigation, to avail itself of the 7(k) exemption.

Even if we were to consider Appellants’s affidavits, they would not be relevant to the critical

14

970 at 806; Avery, 24 at 1343. Since Appellants have offered no

relevant evidence of their own tending to show that the City does

not have a 14-day work period, there is no dispute of material fact

for a jury to resolve. Thus, we hold that the City is entitled to a

7(k) exemption and so need not pay overtime compensation to any

of the appellant patrol officers, sergeants, or lieutenants for up to

86 hours of work in any 14-day work period.

B. THE NO-DOCKING RULE

Unlike the appellant patrol officers, the appellant sergeants

and lieutenants sometimes work more than 86 hours in a 14-day

work period, without receiving overtime compensation. The City,

however, argues that it is exempt from paying its sergeants and

lieutenants overtime compensation because they are “executive”

inquiry under 7(k): whether the City has established a 14-day work period. Moreover, the City

may choose to be more generous with its overtime pay than the FLSA allows, as it has in paying

its patrol officers time-and-a-half for work over 81 hours and 40 minutes in a 14-day work

period, without sacrificing its right under the FLSA to avail itself of a 7(k) exemption. See

Birdwell, 970 F.2d at 806.

15

employees under 29 U.S.C. § 213(a)(1). According to § 213(a)(1),

the overtime provisions of the FLSA do not apply to “any employee

employed in a bona fide executive, administrative, or professional

capacity.” For this exception to apply, the sergeants and

lieutenants must perform “executive duties” and be paid “on a

salary basis.” See 29 C.F.R. § 541.1. Again, the City bears the

burden of proving the applicability of the exception, and we

construe the exemption narrowly against the employer. See

Avery, 24 F.3d at 1340.

Although the lieutenants and sergeants do not dispute that

they perform “executive duties,” they contend that they do not

meet the “salary basis” test because the City has not complied

with the DOL’s no-docking rule regarding unpaid disciplinary

suspensions. See 29 C.F.R. § 541.118(a). Under this rule, an

employer may only subject its salaried employees to deductions

for (1) absence for a day or more for personal reasons other than

sickness or accident, see id. § 541.118(a)(2); (2) absence for a

16

day or more for sickness or disability, if the deduction is made in

accordance with a bona fide sick leave plan, see id. §

541.118(a)(3); (3) absence resulting from good faith penalization

for infractions of safety rules of major significance, see id. §

541.118(a)(5); (4) absence for less than a day for personal

reasons, sickness, or injury, if the deduction is made in

accordance with an accrued leave plan, see id. § 541.5d(a); or (5)

absence due to a budget-related furlough, see id. § 541.5d(b).

In its order, the district court found that the City’s past

suspensions of sergeants and lieutenants raised material

questions of fact as to whether the City had violated the no-

docking rule. Nonetheless, the district court granted summary

judgment for the City because the court thought that the regulation

was invalid as applied to the City; the district court believed that

“[i]t could not have been Congress’ intent that public accountability

should be sacrificed by a public agency such as the City in order

17

for it to comply with the provisions of the FLSA exemptions.” R3-

76 at 30.

While this case has been pending on appeal, however, the

Supreme Court has ruled that the no-docking rule is valid with

regard to state and local governments. See Auer, __ U.S. __, 117

S. Ct. at 909-10. Although the City readily concedes that Auer has

eviscerated the basis for the district court’s holding on the

executive exemption issue, it argues that the “window of

corrections” established by DOL regulations allows municipalities

to avoid violating the salary rule by reimbursing improperly-docked

employees. See 29 C.F.R. § 541.118(a)(6) (“[W]here a deduction

not permitted by these interpretations is inadvertent, or is made for

reasons other than lack of work, the exemption will not be

considered to have been lost if the employer reimburses the

employee for such deductions and promises to comply in the

future.”). In support of this argument, the City assures us that it

has reimbursed the sergeants and lieutenants whom it has

18

previously docked, and it promises not to violate the no-docking

rule in the future. See Auer, __ U.S. __, 117 S. Ct. at 912; Davis

v. City of Hollywood, 120 F.3d 1178, 1180-81 (11th Cir. 1997). In

response, Appellants vigorously contends that the City is not

properly reimbursing several of the affected sergeants and

lieutenants.

In light of the Supreme Court’s intervening Auer decision and

the inconclusiveness of the record with regard to reimbursement of

any previously disciplined sergeants and lieutenants, we agree

with Appellants that we should remand this case to the district

court for further consideration. Because we believe that the

Appellants’s contract claim presents difficult, important, and

dispositive issues of Alabama law, however, we will hold this

portion of the case in abeyance while we await the Supreme Court

of Alabama’s resolution of the questions we certify below.4

4

If necessary after the Supreme Court of Alabama has resolved the certified questions, we

will ask the district court on remand to determine whether Appellants have raised a material

question of fact with regard to the City’s docking of sergeants and lieutenants, given the City’s

claim to have availed itself of the docking rule’s “window of corrections.”

19

C. The State Law Claims

Beyond their FLSA claims, Appellants argue that they have

contractual rights under Rule 3.1(c) and Act 856 to overtime

compensation. Unlike the pay-docking issue, which at most

affects only the appellant sergeants and lieutenants, these claims

would, if successful, result in overtime pay for all of the Appellants.

As this court has previously ruled, a personnel ordinance may

establish a contract entitling local government employees to

overtime pay. See Kohlheim v. Glynn County, 915 F.2d 1473,

1479 (11th Cir. 1990). Such a contract may give employees rights

to overtime compensation beyond those required by the FLSA

(i.e., the FLSA does not preempt state law contract provisions that

are more generous than the FLSA demands). See, e.g., Avery, 24

F.3d at 1347-48.

Before discussing the different issues presented by

Appellants’s claim under Act 856, we first dispense with

Appellants’s contractual claim under Rule 3.1(c). In contrast to Act

20

856, which mandates that “all policemen” shall receive overtime

pay for work in excess of 40 hours per week, Rule 3.1(c) requires

only that “[a]ll employees non-exempt from the provisions of the

Fair Labor Standards Act” shall receive overtime pay. On its face,

therefore, Rule 3.1(c) incorporates the FLSA’s exemptions into its

guarantee of overtime compensation. Thus, Appellants can not

have a greater contractual right to overtime pay under Rule 3.1(c)

than they have under the FLSA. See Avery, 24 F.3d at 1348

(holding that an employee handbook incorporating the FLSA

exemptions could not establish a greater contractual right to

overtime compensation than the plaintiffs’ right to such pay under

the FLSA). As a result, the Appellants’s claim for overtime

compensation under Rule 3.1(c) has no more (or less) merit than

their federal law FLSA claims discussed above.

Appellants’s claim under Act 856 is much more difficult to

resolve. In its arguments to this court, the City has not questioned

that, if Act 856 is still valid law in Mobile County, then it has a

21

contractual obligation under the Act to pay all of the Appellants

overtime compensation for any time that they have worked in

excess of 40 hours per week. The City, however, urges us to

affirm the district court’s ruling that the Personnel Board repealed

Act 856 by implication when it enacted Rule 3.1(c). Having

carefully considered the parties’ contentions with regard to the

repeal issue, we face two difficult questions of Alabama law that

go to the heart of the legal relationship between Alabama’s state

government and its county personnel boards. Because we do not

wish to publish an opinion and judgment that, if relied upon by

parties and political units in Alabama, could interfere with

Alabama’s constitutional system, or its policy regarding payment of

overtime compensation for Mobile employees, we therefore set out

these questions in some detail and certify them to the Supreme

Court of Alabama.5

5

See Blue Cross and Blue Shield of Alabama, Inc. v. Nielsen,

116 F.3d 1406, 1413 (11th Cir. 1997) (“The final arbiter of state

law is the state supreme court, which is another way of saying

that Alabama law is what the Alabama Supreme Court says it is. .

. . Because the only authoritative voice on Alabama law is the

22

First, we are uncertain as to whether the Personnel Board

has the power to repeal Act 856. Regarding this question, we

have found a number of relevant statutory provisions and Alabama

cases, yet we are not confident that any of these is dispositive.

Under Act 470, the Personnel Board’s rules have “the force and

effect of law.” Act 470 § IX(b). Applying this provision, the City

argues that the Alabama legislature has granted the Personnel

Board authority to repeal local acts such as Act 856.

Perhaps running against the City’s position, Act 470's § XI

requires the Mobile County Personnel Director to submit a “Pay

Plan” that is “not inconsistent with such rate or rates as may

otherwise in specific instances be fixed by law.” This provision,

however, by its terms only applies to the Personnel Director, who

is an employee of the Personnel Board. Moreover, the Alabama

courts long ago explicitly held that § XI does not limit the actions of

the Personnel Board:

Alabama Supreme Court, it is axiomatic that that court is the

best one to decide issues of Alabama law.”) (citation omitted).

23

As we construe Section XI, it specifies certain facts and

information the Director shall take into consideration in

formulating his Pay Plan and the italicized words may

confine his suggested pay plan to the rates of pay

already “fixed by law,” but even so, they in no wise limit

or restrict the Personnel Board . . . .

Stone v. State ex rel. Goetz, 8 So. 2d 208, 209 (Ala. Civ. App.

1942); accord Stone v. State ex rel. O’Connor, 8 So. 210, 212

(Ala. Civ. App. 1942).

Additionally, § IX(c) of Act 470 states that the Personnel

Board may enact rules “not inconsistent with the laws of the state.”

Although this provision may preclude the Personnel Board from

repealing Act 470, it does not appear to require such a

construction when read in the larger context of § IX as a whole. In

part (b) of § IX, Act 470 declares that “Rules adopted under this

section shall have the force and effect of law.” In reading these

portions of § IX together, we think that one could conclude that §

IX gives the Personnel Board power to promulgate and repeal

local law (§ IX(b)), but only if it is consistent with Alabama’s

24

general (as opposed to “local”) laws (§ IX(c)).6 Consistent with this

possible view of § IX, the Alabama courts not only have construed

§ IX to give the Personnel Board sweeping regulatory power, see

Jordan v. City of Mobile, 71 So. 2d 513, 519 (Ala. 1954), but also

have gone so far as to state that, under § IX, the Personnel

Board’s rulemaking power is “co-extensive with that of the

legislature,” Mobile Fire Fighters Assoc. v. Personnel Board of

Mobile County, No. 2960962, (Ala. Civ. Ct. Feb. 13, 1998). Thus,

§ IX(c) is an ambiguous

provision that may or may not foreclose the Personnel Board from

repealing a “local act” such as Act 856.7

Beyond these particular provisions of Act 470, the Alabama

courts have, in several cases, discussed the limits of the

Personnel Board’s power under the Act, although they appear

6

Alabama often makes a distinction between “specific” or “local” acts of its legislature

applying only to a part of the state and “general” acts of its legislature applying to the whole

state. See, e.g., Buskey v. Mobile County Bd. of Registrars, 501 So. 2d 447, 452 (Ala. 1986).

7

We note that, to the extent that § IX is ambiguous, the Alabama courts have repeatedly

deferred to the Personnel Board’s constructions of Act 470. See Jordan, 71 So. 2d at 520;

Mobile Fire Fighters.

25

never to have addressed directly the question of whether the

Personnel Board can repeal local acts of the legislature.

Repeatedly, Alabama courts have held that the Personnel Board

may not enact any rule amending or subverting Act 470 itself,

since Act 470 is the statute from which the Board derives its

authority.8 For example, in Personnel Board of Mobile County v.

City of Mobile, the Alabama Supreme Court ruled that the

Personnel Board could not circumvent an amendment to Act 470

that removed the Personnel Board’s authority to regulate the City’s

8

See Mitchell v. Greenough, 325 So. 2d 158, 160 (Ala. 1976)

(holding that the Personnel Board cannot amend or circumvent Act

470); Grant v. City of Mobile, 282 So. 2d 291, 293-94 (Ala. 1973)

(same); Personnel Board of Mobile County v. City of Mobile, 84

So. 2d 365, 369 (Ala. 1955) (holding that the Personnel Board

could not circumvent an amendment to Act 470 that removed the

Personnel Board’s authority to regulate the City’s employment of

a police chief); Jordan, 71 So. 2d at 517-18, 520 (stating that

the Personnel Board may not subvert or repeal Act 470 but holding

that courts should defer to the Personnel Board’s construction of

Act 470); Mobile County v. State ex rel. Farmer, 3 So. 2d 435,

437 (Ala. Civ. App. 1941) (holding that the Personnel Board could

not amend the state legislature’s “Enabling Act,” which the

legislature passed in the same session as Act 470 and which

amended Act 470); cf. Smith v. City of Pleasant Grove, 672 So.

2d 501, 505-07 (Ala. 1995) (holding that a county personnel

board, empowered by the state legislature to regulate

“classified” but not “unclassified” types of employment, could

not expand definition of “classified” to include common laborers,

when common laborers were explicitly defined as “unclassified”

employees in the statute giving the personnel board its

regulatory power).

26

employment of a police chief. See 84 So. 2d at 369. Applying

these Alabama precedents, one could well conclude that the

Personnel Board does not have the power to repeal or circumvent

Act 856 because Act 856 amended Act 470. If, by enacting Act

856, the Alabama legislature took away power from the Personnel

Board (rather than simply writing a local-law labor regulation

equivalent to one of the Board’s rules), then the legislature in

effect amended Act 470's grant of power to the Board, and the

Board cannot repeal or amend this amendment to its founding

statute. Cf. id. at 369.

On the other hand, the Alabama Supreme Court’s holding in

Freeman v. Purvis, 400 So. 2d 389 (Ala. 1981), seems to suggest

that, if Act 856 amended Act 470, it did so in a way that does not

bind the Personnel Board. In Purvis, the Alabama Supreme Court

examined an act quite similar to Act 856; while Act 856 sets

policemen’s hours for overtime, Act 80-797 in Purvis established

minimum salaries for deputy sheriffs. In Purvis, the Personnel

27

Board argued, inter alia, that Act 80-797 violated the Alabama

constitution because it improperly repealed Act 470. The Alabama

Supreme Court, however, held that Act 80-797 did not repeal Act

470 but rather “amended Act No. 470 by supplementation.”

Purvis, 400 So. 2d at 393. Specifically, the Purvis court ruled that

Act 80-797 supplemented the “minimum . . . rate” language of Act

470's § XI. By analogy, then, Purvis would seem to indicate that

Act 856 also amended Act 470 by supplementing § XI. As we

discussed above, and as the Alabama courts have previously held,

however, § XI only concerns the Personnel Director, an employee

of the Personnel Board, and “in no wise limit[s] or restrict[s] the

Personnel Board.” Goetz, 8 So. 2d at 209; accord O’Connor, 8 So.

210 2d at 212. Thus, according to some established Alabama

authorities, Act 856 would seem to have amended only a provision

of Act 470 which the Personnel Board is free to disregard.

In sum, the issue of whether the Personnel Board has the

power to repeal Act 856 presents a difficult and heretofore

28

apparently unsettled question of Alabama law. Because the

answer to this question is dispositive of the patrol officers’ (and

perhaps also the sergeants’ and lieutenants’) claims in this case,

and because we are hesitant to issue an opinion that, if relied

upon by private persons or government officials in Alabama, might

interfere with the fundamental relationship between Alabama’s

state legislature and its county personnel boards, we certify the

following question to the Supreme Court of Alabama pursuant to

Alabama Rule of Appellate Procedure 18:

QUESTION ONE: DOES THE MOBILE COUNTY

PERSONNEL BOARD HAVE THE POWER TO

REPEAL OR OTHERWISE AMEND OR SUPPLANT

LOCAL ACTS PASSED BY THE ALABAMA STATE

LEGISLATURE SUCH AS 1969 ALA. LOCAL ACTS

856?

If the answer to this question is “yes,” then we would ask the

Supreme Court of Alabama to address the subsidiary question of

whether the Personnel Board in fact did repeal Act 856 by

enacting Rule 3.1(c). We would request instruction from the

29

Supreme Court of Alabama concerning this second question

because it involves the juxtaposition of two well-established, but in

this case perhaps contradictory, Alabama principles of statutory

construction.

First, Alabama law clearly disfavors repeal by implication. In

order to find implied repeal, Alabama courts require that two laws

be “repugnant” or in such “conflict with each other” that repeal

must be presumed. See, e.g., Fletcher v. Tuscaloosa Fed. Sav.

and Loan Ass’n., 314 So. 2d 51, 55 (Ala. 1975). Alabama law

does not require, however, that a court accept any construction of

a later statute that is technically consistent with a previous law.

Instead, a court must look to the “legislative intent” underlying the

latter act to determine whether there is a “reasonable construction”

of the second statute that does not conflict with the first. See, e.g.,

Sand Mountain Bank v. Albertville Nat’l Bank, 442 So. 2d 13, 19

(Ala. 1983).9 Applying this rule alone, we think that Rule 3.1(c) is

9

In Fletcher, for example, the Alabama Supreme Court found

that a general banking/loan reform act implicitly repealed an

30

susceptible to two possible constructions: (1) Rule 3.1(c) simply

mandates that all employees under the Personnel Board’s

jurisdiction comply with the overtime provisions of the FLSA; or (2)

Rule 3.1(c), in the context of the whole body of the Personnel

Board’s rules and consistent with the principle of expressio unius,

incorporates the FLSA’s exemptions so that it not only requires

overtime pay for non-FLSA-exempt employees but also bars

overtime pay for FLSA-exempt employees. In other words, Rule

3.1(c) may be susceptible to both non-Act-856-repealing and Act-

856-repealing interpretations.

If the first, non-repealing construction is “reasonable,” then

Alabama’s law on implied repeal requires that a court adopt it so

that both Act 856 and Rule 3.1(c) can be given continued effect.

See, e.g., Sand Mountain Bank, 442 So. 2d at 19. We are

earlier, more specific usury law, even though the two statutes

could “be ascribed mutually exclusive fields of operation.” Id.

In reaching this conclusion, the Fletcher court looked not just

to the explicit provisions of the two statutes but also to the

“legislative intent” underlying the second act. See id. at 55-

56.

31

uncertain, however, whether the non-repealing interpretation is

“reasonable” given the Alabama courts’ long-established principle

of deference to contemporary construction. Under Alabama law,

“contemporaneous construction” of a law is entitled to “great

consideration.” State v. Tuscaloosa Bldg. & Loan Ass’n, 161 So.

530, 534 (Ala. 1935). In choosing between competing

constructions of a statute, Alabama courts consider “the

contemporaneous construction placed upon [the statute] by the

courts, by the officers whose duty it was to construe [it], and by the

executive departments and the popular interpretation, as

exemplified in practice for a number of years. . . .” State ex rel.

Fowler v. Stone, 185 So. 404, 408 (Ala. 1938); cf., e.g., Fletcher,

314 So. 2d at 55 (finding implied repeal based on legislative

intent); Sand Mountain, 442 So. 2d at 18 (explaining that in

construing a statute to determine whether there has been an

implied repeal, “a court must look not only to the language of the

statute, but also to the purpose and object of the enactment and its

32

relation to other laws.”). “When the law has contemporaneously

been put into operation, and in doing so a construction has

necessarily been put upon it, this construction, especially if

followed for some considerable period, is entitled to great respect,

as being very probably a true expression of the legislative

purposes, and is not lightly to be overruled.” Trammel v. Conner,

8 So. 495, 496 (Ala. 1890). Applying this principle, we see a

variety of evidence in the record indicating that the Personnel

Board has consistently construed and applied Rule 3.1(c) as

incorporating the FLSA’s exemptions to bar overtime payment for

FLSA-exempt employees—thereby implicitly repealing Act 856.10

10

For example, both past and present Personnel Directors for Mobile County have given

testimony indicating that the Personnel Board has consistently construed Rule 3.1(c), since its

adoption in 1986, as prohibiting overtime payment to FLSA-exempt employees. See Pl. Exh. E,

¶ 26, at 13 (“The Mobile County Personnel Board when it amended Rule 3.1(c), after Garcia,

confirmed that exempt employees under the Fair Labor Standards Act would not be paid

overtime . . . .”); R1-38 (same). Although Judge Kravitch questions the relevance of such

evidence in her special concurrence, see post at __ n.5, the cases she cites are inapposite because

the Personnel Director is not a “legislator” but rather an “executive.” As “executive head of the

[Personnel] Department,” Act 470 § VIII, the Personnel Director must construe and implement

the Personnel Board’s enactments. Cf. State ex rel. Fowler, 185 So. at 408 (stating that Alabama

courts defer to the contemporary construction of “the officers whose duty it was to construe [a

statute]” and of “executive departments,” as “exemplified in practice for a number of years”).

33

Nonetheless, we are not confident as to whether such

contemporary construction evidence may render an interpretation

of a statute or rule so unreasonable as to overcome the Alabama

courts’ disfavor of implied repeal. Out of deference to the

Supreme Court of Alabama, we do not wish to publish a federal

court opinion that might, if relied upon by parties in Alabama,

disrupt unnecessarily the long development of Alabama’s

principles of statutory construction. Therefore, we certify the

following second question to the Supreme Court of Alabama:

QUESTION TWO: IF THE MOBILE COUNTY

PERSONNEL BOARD HAS THE POWER TO REPEAL

ACT 856, DID THE BOARD IN FACT REPEAL ACT 856

BY IMPLICATION WHEN IT ENACTED RULE 3.1(c)?

The particular phrasing of the two certified questions is not

intended to limit the Supreme Court of Alabama in its

consideration of the various issues posed by the entire case as

it perceives them to be. The entire record and the briefs of the

34

parties shall be transmitted to the Supreme Court of Alabama to

assist its determination.

III. CONCLUSION

By demonstrating that it has adopted a 14-day work period,

the City has established that it is entitled to a 7(k) exemption. As a

result, we AFFIRM the district court’s ruling that the City need not

pay overtime under the FLSA to the appellant patrol officers,

sergeants, or lieutenants for up to 86 hours of work within one of

its 14-day work periods. Because of the Supreme Court’s

intervening decision in Auer, however, we must REVERSE the

district court’s holding that the no-docking rule is invalid as applied

to the City and its sergeants and lieutenants (who may work more

than 86 hours per week). Because we believe that state law

issues are dispositive of the case, especially with regard to the

patrol officers, we hold the no-docking portion of the case in

35

abeyance while we await the Supreme Court of Alabama’s

resolution of the two CERTIFIED questions.

AFFIRMED IN PART, REVERSED IN PART, and

CERTIFIED to the Supreme Court of Alabama.

KRAVITCH, Senior Circuit Judge, specially concurring:

36

I concur in the majority’s resolution of appellants’ federal-law

claims based on the Fair Labor Standards Act, 29 U.S.C. §§ 201-

209 (the “FLSA”), and appellants’ state-law claim based on the

Mobile County Personnel Board’s Rule 3.1(c) (“Rule 3.1(c)”). I

also join in the majority’s decision to certify to the Alabama

Supreme Court the issue of whether Rule 3.1(c) repealed 1969

Ala. Acts 856 (“Act 856”), a general law of local application that, by

its terms, guarantees overtime compensation to all policemen

employed by cities in Mobile County. Like the majority, I believe

that we should turn to the Alabama Supreme Court, the ultimate

arbiter of Alabama law, for guidance with regard to two heretofore

unresolved questions: (1) whether the Personnel Board has the

authority to repeal Act 856; and (2) assuming that the Personnel

Board has such authority, whether Rule 3.1(c) implicitly repealed

Act 856.

I write separately, however, because I disagree with two

aspects of the majority’s opinion. First, I do not believe that

Freeman v. Purvis, 400 So.2d 389 (Ala. 1981), implies that the

37

Personnel Board has the authority to repeal Act 856. See infra

Part I. Second, I do not agree that “a variety of evidence in the

record” indicates that the Personnel Board contemporaneously

construed Rule 3.1(c) to constitute an implied repeal of Act 856.

See infra Part II.

I.

In Freeman v. Purvis, 400 So.2d 389 (Ala.

1981), the Personnel Board challenged two general

laws of local application that required deputy

sheriffs in Mobile County to be paid at least as

much as state troopers of corresponding rank.

See id. at 390 (citing 1976 Ala. Acts. 710 and

1980 Ala. Acts 797). The trial court ruled that

those state laws are valid and are binding on the

Personnel Board. See id. at 390-91. The Alabama

Supreme Court affirmed. Analyzing 1939 Ala.

Local Acts 470, the law that established the

Personnel Board, the Court explained:

38

It is true that the terms of Act No. 470

granted authority to the Board to approve

both a classification of positions and a

pay plan for them. That pay plan,

however, in the terms of Act No. 470,

shall include for each class of

positions, a minimum and a maximum

rate not inconsistent with such

rate or rates as may otherwise in

specific instances be fixed by

law. . . .

The provisions of Act No. 797 appear to

have accomplished what that proviso

contemplated when they fixed the minimums

for the deputy sheriff class of

positions. Thus Act No. 797 amended Act

No. 470 by supplementation without a

conflict in its terms.

See id. at 393 (quoting 1939 Ala. Local Acts 470

§ XI) (ellipsis in original). According to the

Freeman Court, therefore, any pay plan enacted by

the Personnel Board must comply with the minimum

and maximum rates established by state law.

Freeman provides no support for the

proposition that the Personnel Board has the

authority to repeal Act 856. If the Personnel

Board’s enactment of a rule governing overtime

39

pay effectively constitutes the adoption of a pay

plan, then Freeman would indicate that the

Personnel Board lacks the authority to repeal Act

856. Just as the Personnel Board, under Freeman,

must adhere to the minimum compensation levels

established for deputy sheriffs under Alabama

law, so here the Personnel Board would be bound

to comply with the overtime provisions of Act

856.11

11

Despite the clarity of Freeman’s holding, the majority attempts to graft onto the

Freeman opinion certain language from two earlier, inapposite opinions by the Alabama Court of

Appeals: Stone v. State ex rel. O’Connor, 30 Ala.App. 500, 8 So.2d 210 (Ala. App. Ct. 1942),

and Stone v. State ex rel. Goetz, 30 Ala.App. 489, 8 So.2d 208 (Ala. App. Ct. 1942). In those

cases, the court stated that the Personnel Board could enact pay plans at variance with local laws

that were enacted in 1932, prior to the passage of Local Act 470. In both cases, the court relied

in part on the repeal clause of Local Act 470, which rendered void all inconsistent “laws or parts

of laws heretofore enacted.” 1939 Ala. Local Acts 470 § XXXVI (emphasis added). See Stone,

30 Ala.App. at 502-03, 8 So.2d at 212; Goetz, 30 Ala.App. at 491, 8 So.2d at 209-210.

By contrast, in both the instant case and Freeman, the question is whether the Personnel

Board may enact a pay plan that is inconsistent with a general law of local application enacted

after the passage of Local Act 470. The Freeman Court answered this question

in the negative, see 400 So.2d at 393 (quoting 1939 Ala. Local

Acts 470 § XI), and affirmed the trial court’s ruling that the

Personnel Board was bound by the state laws governing minimum pay

for deputy sheriffs. Indeed, if the Personnel Board were free to

disregard those laws, as the majority implies, then the Freeman

Court would have dismissed the Personnel Board’s suit for lack of

controversy. See Ex parte Blue Cross & Blue Shield of Ala., 582

So.2d 469, 474 (Ala. 1991).

40

Despite my disagreement with the majority’s

reading of Freeman, I concur in certifying to the

Alabama Supreme Court the question of whether the

Personnel Board has the authority to repeal Act

856. This important and heretofore unresolved

issue is best left to the judgment of the Alabama

Supreme Court.12

II.

12

Although no Alabama Supreme Court case directly addresses

whether the Personnel Board has the power to repeal Act 856,

Freeman and Personnel Bd. of Mobile County v. City of Mobile, 264

Ala. 56, 84 So.2d 365 (1955), arguably suggest that the Personnel

Board lacks such power. The Personnel Board’s authority to

establish a rule regarding overtime pay appears to be based upon

either the Personnel Board’s specific authority to enact a pay

plan, see 1939 Ala. Local Acts 470 § XI, cited in Freeman, 400

So.2d at 393, or the Personnel Board’s general authority over the

civil service system, see 1939 Local Acts 470 § VII, cited

in Personnel Bd., 264 Ala. at 58, 84 So.2d at 367. Freeman and

Personnel Bd., respectively, imply that an overtime rule enacted

under either authority must comply with general laws of local

application enacted after the Personnel Board was created. See

Freeman, 400 So.2d at 393 (stating that the Personnel Board’s pay

plan must comply with 1980 Ala. Acts 797); Personnel Bd., 264

Ala. at 61, 84 So.2d at 369 (rejecting the Personnel Board’s

challenge to 1953 Ala. Acts 370, which divested the Personnel

Board of its power under Local Act 470 to control the employment

of police chiefs); see also 1939 Ala. Local Acts 470 § IX(c)

(stating that the Personnel Board may enact “any provisions

relating to the Classified Service, not inconsistent with the

laws of the state, which may be necessary or appropriate to give

effect to the provisions and purposes of this Act”) (emphasis

added).

41

Assuming that the Personnel Board has the

authority to repeal Act 856, the next question is

whether Rule 3.1(c) implicitly repealed Act 856.

“Repeal by implication is not favored. It is

only when two laws are so repugnant to or in

conflict with each other that it must be presumed

that the Legislature intended that the latter

should repeal the former.” Fletcher v.

Tuscaloosa Fed. Sav. and Loan Ass’n, 294 Ala.

173, 177, 314 So.2d 51, 55 (1975) (quoting City

of Birmingham v. Southern Express Co., 164 Ala.

529, 538, 51 So. 159, 162 (1909)). Thus, “[i]f

under a reasonable construction it is possible to

reconcile the acts, both will be given effect.”

Sand Mountain Bank v. Albertville Nat’l Bank, 442

So.2d 13, 19 (Ala. 1983).

Because it is an open question under Alabama

law whether Rule 3.1(c) reasonably may be

42

construed to be in harmony with Act 856, I concur

in the majority’s decision to certify this

question to the Alabama Supreme Court.13 I

disagree, however, with the majority’s statement

that “a variety of evidence in the record”

indicates that the Personnel Board

13

One interpretation of Rule 3.1(c) that does not conflict with Act 856 is that the

Personnel Board enacted Rule 3.1(c) simply to ensure Mobile County agencies’ compliance with

the FLSA. See City of Birmingham v. Personnel Bd. of Jefferson County, 464 So.2d 100, 103

(Ala. Civ. App. 1984) (stating that a personnel board can institute mandamus proceedings to

compel public agencies to comply with its rules). In light of the FLSA’s complicated set of

exemptions for public employees, see 29 U.S.C. §§ 207(j)-(k),(n), 213(a)(1), (b)(20), the

Personnel Board may have believed that centralizing control over agencies’ overtime policies

would help avoid expensive FLSA litigation, see 29 U.S.C. § 216(b) (stating that a public agency

found to have violated FLSA’s overtime requirements is liable to its employees “in the amount

of . . . unpaid overtime compensation . . . and in an additional equal amount as liquidated

damages,” plus attorney’s fees and costs). Under this interpretation, Rule 3.1(c) simply ensures

that agencies pay overtime to non-exempt employees; it does not prohibit agencies from

providing overtime pay to exempt employees if any provision of state law, such as Act 856, so

requires.

This arguable construction of Rule 3.1(c) appears to be consistent with Rule 3.1(c)’s

“language” and “relation to other laws.” Sand Mountain Bank, 442 So.2d at 18. For example,

the fact that the Personnel Board easily could have written Rule 3.1(c) to bar all exempt

employees from receiving overtime pay, but chose not to do so, may indicate that it did not

intend to repeal Act 856. See Anniston Urologic Assocs., P.C. v. Kline, 689 So.2d 54, 59 (Ala.

1997) (“If [repeal of the prior enactment] had been the intent of the Legislature, it could have

made, and now should make, its wishes clearly known.”); see also Fletcher, 294 Ala. at 177, 314

So.2d at 55 (“Implied repeal is essentially a question of determining the legislative intent as

expressed in the statutes.”) (internal quotations omitted). Likewise, the fact that the Personnel

Board enacted Rule 3.1(c) on April 15, 1986, the same day that the FLSA’s overtime protections

became effective as to non-exempt employees of local public agencies, see Fair Labor Standards

Amendments of 1985, Pub. L. No. 99-150, § 2(c)(1), 99 Stat. 787, 788-89, may suggest that Rule

3.1(c) was not intended to affect exempt employees’ rights to overtime pay under state law.

It is unclear, however, whether this harmonious interpretation of Rule 3.1(c) and Act 856

is “reasonable.” Sand Mountain Bank, 442 So.2d at 19. Like the majority, I believe that

resolution of this question is best left to the judgment of the Alabama Supreme Court.

43

contemporaneously construed Rule 3.1(c) to

constitute an implied repeal of Act 856. Even if

the Personnel Board’s contemporaneous

construction of Rule 3.1(c) were relevant,14 I

find no record evidence to suggest that the

Personnel Board ever prohibited the various

agencies within its purview from providing exempt

employees with overtime pay where otherwise

authorized by state law.15

14

The majority has not cited, nor have I found, any Alabama authority indicating that a

court’s inquiry into implied repeal may involve examining an implementing entity’s

“contemporaneous construction” of the latter law. Cf. State ex rel. Fowler v. Stone, 237 Ala. 78,

185 So. 404 (1938) (not involving implied repeal), cited in Maj. Op.; State v. Tuscaloosa

Building & Loan Ass’n, 230 Ala. 476, 161 So. 530 (1935) (same), cited in Maj. Op.; Trammel

v. Connor, 91 Ala. 398, 8 So. 495 (1890) (same), cited in Maj. Op.

15

The majority cites a sentence from the affidavit testimony of Bernard Richardson, the

Personnel Director in 1986. See Pl. Exh. E, ¶ 26, at 13 (stating that the Personnel Board, in

enacting Rule 3.1(c), “confirmed that exempt employees under the Fair Labor Standards Act

would not be paid overtime”). This testimony, however, does not bear on

the contemporaneous construction of Rule 3.1(c). The Personnel

Board, not the Personnel Director, is endowed with the specific

authority to enforce Personnel Board rules, see 1939 Ala. Local

Acts § VII(b)(4), as amended by 1976 Ala. Acts 684 § 2, and

Richardson’s testimony does not indicate that the Personnel Board

ever sought to prohibit local agencies from complying with Act

856. Likewise, Richardson’s testimony does not suggest that the

Personnel Board ever intended that Rule 3.1(c) repeal Act 856.

Not only is ex post opinion testimony inadmissible to establish

the intent of a legislative body, see James v. Todd, 103 So.2d

19, 28-29 (Ala. 1957) (upholding the trial court’s decision to

exclude testimony by members of the Alabama Legislature

concerning the Legislature’s intent in enacting 1955 Ala. Acts

44

III.

Although I disagree with two elements of the

majority opinion, I otherwise fully concur in its

reasoning and result.

570); see also Hamilton v. Autauga County, 289 Ala. 419, 426, 268

So.2d 30, 36 (Ala. 1972), but also Richardson was not even a

member of the Personnel Board and thus is in no position to

speculate on the Board’s intention. Indeed, Richardson’s

testimony, taken as a whole, indicates that Rule 3.1(c) was

intended simply to enforce the FLSA’s overtime provisions for

non-exempt employees. See Pl. Exh. E, ¶ 25, at 12 (“The sole

purpose of amending Rule 3.1(c) was to express, as a policy

statement of the Mobile County Personnel Board, that 29 U.S.C.

§ 207(a)(1) would be implemented.”).

The majority also cites affidavit testimony of the current

Personnel Director, Shannon Weekley, see R1-38, but her testimony

is flawed for the same reasons as Richardson’s. Moreover,

Weekley, who became Personnel Director in 1993, has no insight

into the “contemporaneous construction” of Rule 3.1(c) when it

was enacted in 1986.

45

46