Susan Hays VS Louisiana State Board of Elementary & Secondary Education
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT C NO 2009 CA 1386 SUSAN HAYS VERSUS LOUISIANA STATE BOARD OF ELEMENTARY AND SECONDARY EDUCATION Judgment Rendered JUN 1 1 2010 Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No 527 094 The Honorable William Morvant Judge Presiding David K Nelson Counsel for PlaintiffAppellant Jeffrey N Boudreaux Baton Rouge Louisiana Ray Hays as successor to Susan Hays James D Buddy Caldwell Attorney General Angelique Duhon Freel Assistant Attorney General Baton Rouge Louisiana Counsel for Defendant Appellee Jonathan C Augustine Baton Rouge Louisiana Counsel for Amicus Curiae Louisiana State Board of Elementary and Secondary Education Louisiana Association of Educators BEFORE DOWNING GAIDRY AND MCCLENDON JJ MCCLENDON J The surviving husband and heir of a tenured teacher appeals a summary judgment dismissing a claim for wrongful demotion against the Louisiana State Board of Elementary and Secondary Education BESE and denying his cross motion for summary judgment For the following reasons we affirm FACTUAL AND PROCEDURAL HISTORY Susan Ann Smith Hays was a permanent fulltime teacher and administrator at the Northwest Developmental Center NDC a special school within the Special School District Number One SSD operated by BESE Mrs Hays served as principal at NDC from July 1 1992 through June 30 2004 and acquired tenure in that position During her last year of employment in that position her maximum salary stated in her contract was 73 96 926 By the 200405 fiscal year the SSD experienced a significant decrease in student enrollment at various special schools accompanied by budget reductions and elimination of employee positions NDC had only four students enrolled at the beginning of the 2004 school year compared to eleven enrolled at the beginning of the 2002 school year At the end of the 2004 school year NDC had only two enrolled students The SSD prepared and submitted to BESE a reduction in force RIF plan to deal with its enrollment and budgetary reductions The RIF plan called for the elimination of principal positions at seven of the SSD schools including NDC 2004 BESE approved the RIF plan on April 15 As approved the RIF plan provided that affected employees would be contacted in the order of their seniority and advised of their options and that all actions taken to implement the RIF would be in accordance with the Louisiana Department of Education Personnel and Administrative Manual of Special s School District and Board Special Schools On April 19 2004 all SSD employees were mailed copies of a detailed memorandum explaining the RIF plan On June 7 2004 the SSD began issuing notices of the implementation of the RIF plan to affected employees in the order 2 of their seniority offering available positions that were either vacant or held by employees with less seniority Mrs Hays was contacted on June 10 2004 and advised that she would be affected by the elimination of the position of principal at NDC She was offered a teaching position at any of eight special schools including NDC and opted to accept a position at NDC Effective July 1 2004 her salary in her new position was 64 09 383 However Mrs Hays expressly noted on her SSD Salary Computation Form that by accepting her new position she was not waiving her claim that she was improperly demoted from her prior salary level On December 7 2004 Mrs Hays filed a petition in the 19th Judicial District Court naming BESE as defendant and seeking declaratory judgment that BESE illegally demoted her and recovery of the difference between her prior salary and her new lower salary plus all emoluments associated with her prior salary On December 30 2004 BESE filed its answer denying that its actions contravened Louisiana law and denying any liability to Mrs Hays Mrs Hays died on March 10 2005 Her husband Allen Ray Hays was subsequently placed in possession of her litigious rights in this action and was substituted as plaintiff On November 6 2008 plaintiff filed a motion for summary judgment on the merits On February 27 2009 BESE responded with a cross motion for summary judgment focusing on the legal issue of whether the laws relating to teacher tenure applied to and regulated its implementation of the SSD RIF plan Both motions were eventually heard on April 27 2009 The trial court ruled in favor of BESE on both motions denying plaintiff motion and granting s s BESE motion dismissing the action with prejudice and at plaintiff costs s Its judgment to the foregoing effect was signed on May 5 2009 Plaintiff now appeals seeking reversal of the trial court judgment and s judgment on his motion in his favor 3 ASSIGNMENT OF ERROR In this appeal plaintiff assigns the following as error The district court erred in finding that the rights of tenured sare forfeited and meaningless under BESE Reduction in teacher s Force policy such that BESE may demote tenured teachers without first providing a tenure hearing BESE on the other hand maintains that the implementation of a RIF as authorized by LSAR 17 S 81 4does not invoke the teacher tenure provisions of LSAR 17 for special school teachers or LSAR 17 et seq the S 45 S 441 general teacher tenure law BESE argues that the RIF procedures were properly implemented and that it owed no duty to plaintiff to provide a tenure hearing STANDARD OF REVIEW Summary judgment is subject to de novo review on appeal using the same standards applicable to the trial court determination of the issues Peak s Performance Physical Therapy Fitness LLC v Hibernia Corp 072206 p 5 La 1 Cir 6 992 So 527 530 writ denied 081478 La App 08 2d 08 3 10 992 So 1018 2d The summary judgment procedure is expressly favored in the law and is designed to secure the just speedy and inexpensive determination of non domestic civil actions LSA C art 966A Summary P 2 judgment is appropriate if the pleadings depositions answers to interrogatories admissions and affidavits in the record show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law LSA C art 9668 P As conceded by the parties the questions presented for our determination are purely legal ones rather than factual ones and therefore particularly appropriate for determination by summary judgment as a matter of law See LSAC art 966C In a case involving no dispute regarding material facts P C 1 but only the determination of a legal issue a reviewing court must also apply the de novo standard of review under which the trial court legal conclusions are s not entitled to deference Kevin Associates L v Crawford 03 0211 p C 15 La 1 865 So 34 43 La Workers Comp Corp v La Ins 04 30 2d rd Guar Ass 08 0885 p 8 La 1 Cir 5 20 So 1047 1052 writ n App 09 13 3d denied 091308 La 10 18 So 1282 09 9 3d APPLICABLE LAW The Reduction in Force RIF Statute Louisiana Revised Statutes 17 was first enacted in 1983 and requires 4 81 school boards to establish published rules and policies for the dismissal of teachers due to reductions in force or layoffs It provides in pertinent part A Not later than January 1st 1984 each city and parish school board shall develop and adopt rules and policies which it shall use in dismissing teachers at any time a reduction in force is instituted by such school board Such rules and policies shall be made available for inspection by teachers other school employees and the general public within ten days after final adoption D Not later than January 1 1996 all reduction in force policies of the city and parish school boards and special schools as provided in this Section shall include but not be limited to the following minimum standards 1 Certification if applicable 2 Seniority in the system 3 Tenure of employees 4 Academic sfield employee preparation if applicable within the a 5 The right of an employee notified of an action which results from implementation of a reduction in force policy to request in writing a review of such action and to receive notice of the results of such review b The right of an employee to pursue the matter through the school board sadopted grievance procedure Additionally Section 109 of the manual RIF policy adopted pursuant to LSA s S 81 R 17 provides in part that 4 mployees e whose position is being eliminated as the result of a RIF Plan will be notified Further Section 111 provides An employee reassigned to a different job title shall be placed on the appropriate salary schedule at the step for which the employee is qualified An employee accepting assignment to a lesser position will be placed within the salary schedule for the lesser position at the level appropriate to the employee syears of experience and education 5 Tenure Provisions The Teacher Tenure Law TTL LSAR 17 et seq provides S 441 s Louisiana public school teachers with tenure in their employment and protects them from discharge suspension or demotion for causes other than those provided by statute Rousselle v Plaquemines Parish Sch Bd 931916 La 2 633 So 1235 1241 94 28 2d The purpose of the law is to ensure teachers with security in the position grade or status they have attained and not merely to ensure them with teaching employment Id 93 1916 633 So 2d at 1242 The provisions of the TTL must be liberally construed in favor of teachers since teachers are its intended beneficiaries Palmer v La State Bd of Elementary Secondary Educ 02 2043 p 8 La 4 842 So 03 9 2d 363 369 However the TTL was not intended to guarantee job security where there were no jobs Rousselle 931916 633 So at 1243 citing Paul R 2d Baier Work of the Appellate Courts 19741975 Administrative Law and Procedure 36 La 464 469 1976 Rev L As part of its constitutional mandate BESE has general authority to supervise and control Louisiana public educational system including special s schools LSA Const art VIII 3 Foster v Bd of Elementary Secondary Educ 479 So 489 494 La App 1 Cir 1985 Additionally LSAR 17 2d S 43 et seq serve to give BESE the same authority to directly control special school teachers that parish and municipal school boards possess regarding their teachers under LSAR 17 44 S 442 See Foster 479 So at 495 2d Parish school boards have broad responsibility in administering the public schools including the power when acting in good faith to consolidate positions or to abolish them Palone v Jefferson Parish Sch Bd 306 So 679 681 La 2d 1975 BESE clearly possesses the same authority regarding the special schools under its jurisdiction Louisiana Revised Statutes 17 sets forth the procedures and standards 45 by which teachers in special schools may acquire tenure and by which they may be discharged removed or demoted It was originally enacted in 1979 for the 0 purpose of providing tenure to teachers within the special school system and to provide those teachers with the same rights and privileges afforded regular public school teachers under LSAR 17 et seq LSA R 17 Palmer S 442 S 43 02 2043 pp 8 9 842 So at 369 2d Louisiana Revised Statutes 17 provides 45 in pertinent part A A teacher in a special school shall be entitled to tenure benefits as follows a 2 A permanent teacher in a special school shall not be removed from office except upon written and signed charges of wilful neglect of duty or incompetency or dishonesty and then only if found guilty after a hearing by the board or by a committee of the board which hearing may be public or private at the option of the teacher At least fifteen days in advance of the date of the hearing the board shall furnish the teacher with a copy of the written charges the teacher shall have the right to appear before the board or committee of the board with witnesses in his behalf and with counsel of his selection all of whom shall be heard by the board or committee of the board at the hearing Any finding of a committee of the board shall be reviewed and acted upon by the full board The board may set aside or modify the findings of a committee of the board Nothing herein contained shall impair the right of appeal to a court of competent jurisdiction b 3 During the probationary period in the position to which promoted a teacher shall not be disciplined removed or demoted to the lower position from which he was promoted except in compliance with the provisions of Subsection A of this Section 1 At the expiration of the probationary period in the higher position a teacher unless removed or demoted in accordance with Subsection A of this Section shall automatically acquire 1 permanent status in the higher position and thereafter may not be disciplined removed or demoted from such higher position in compliance with the provisions of Subsection A of this Section 2 C Nothing contained in the Louisiana Revised Statutes of 1950 shall be construed as conferring upon the board the authority to make rules and regulations which may impair or nullify the provisions of this Subpart and Section 1 The word except was obviously intended to be placed before the phrase in compliance with but was inadvertently omitted See LSA R 17 Otherwise if the language of LSA R S 444A 2 S 3 45A 17 is read literally a promoted permanent teacher in a special school could never be removed or disciplined under Subsection A for wilful neglect of duty or incompetency or 2 dishonesty Such an interpretation would of course be absurd 7 Statutory Construction The paramount consideration in statutory construction is ascertainment of the legislative intent and the reason or reasons which prompted the legislature to enact the law Foti v Holliday 09 0093 p 6 La 10 27 So 813 09 30 3d 817 M Farms Ltd v Exxon Mobil Corp 072371 p 13 La 7 998 3 08 1 2d So 16 27 It is well established that the starting point for the interpretation of any statute is the language of the statute itself Foti 090093 at p 6 27 3d So at 817 Dejoie v Medley 082223 P 6 La 9 So 826 829 09 5 3d When a statute is clear and unambiguous and its application does not lead to absurd consequences the provision is applied as written with no further interpretation made in search of the Legislature intent Foti 09 0093 at p 6 s 27 So at 817 LSAC art 9 LSAR 1 In the event the language of a 3d C S 4 statute is susceptible of different meanings the interpretation must best conform to the purpose of the law LSAC art 10 C When analyzing legislative history it is presumed the legislature sactions in crafting a law were knowing and intentional Foti 09 0093 at p 6 27 So 3d at 817 M Farms Ltd 07 2371 at pp 1314 998 So at 27 J 2d More particularly the legislature is presumed to enact each statute with deliberation and with full knowledge of all existing laws on the same subject Thus legislative language will be interpreted on the assumption the legislature was aware of existing statutes well established principles of statutory construction and with knowledge of the effect of their acts and a purpose in view M Farms Ltd J 072371 at pp 1314 998 So at 27 2d In the case sub judice plaintiff argues that LSAR 17 is clear S 45 Plaintiff asserts that Mrs Hays was demoted due to the reduction in her salary and she was therefore entitled to a hearing in accordance with the statute Because Mrs Hays was not given a hearing plaintiff argues that her tenure rights were violated Plaintiff argues that these statutorily protected tenure rights must take precedence over any reduction in force procedure 3 BESE maintains that Mrs Hays was not removed from her position for willful neglect of duty incompetency or dishonesty so the provisions of the tenure law are inapplicable The facts in this matter were essentially undisputed and the trial court stated that the question it was to decide was whether the teacher tenure law for special schools LSAR 17 or the RIF law LSAR 17 applied The S 45 S 81 4 court made the determination that there was no termination demotion or action taken for cause as defined under LSAR 17 The court found that plaintiff S 45 s position was eliminated due to a reduction in enrollment and budget cuts Based on those facts the court concluded that the tenure law was not controlling and there was no need for a tenure hearing since BESE did not allege or contend in any way that plaintiff was in any way deficient Rather the trial court found LSAR 17 controlling S 81 4 The court also stated that to accept plaintiff s argument would mean that it would have to completely ignore the reduction in work force statute and the reason that it was enacted The court stated And I really kind of question under these facts whether or not this constitutes a demotion as claimed by plaintiff and the reason I do that is it almost can be a demotion since the position she occupied t no longer exists And this is not a situation where she dropped s down from principal to teacher someone else comes in and occupies this former principal position It no longer exists And again it wasn a demotion for cause rather only because of the t reduction in force that these certain positions were being and consider plaintiff s eliminated And again as I read BESE would have been better suited argument it seems that simply to terminate the position as principal and thank Ms Hays for her years of service But by choosing to keep her and complying with the statute that says we going to put you in this position re re we going to look at your years of experience and based on that I mean she not put at a first year teacher position She was s s way up on the pay schedule That it just wouldn tmake sense to say they better off terminating her than trying to find a spot to re place her in as a teachered sic employee And that clearly not s what I think 17 would require 4 81 The trial court stated that the only way to give a common sense meaning to the statutes at issue and give LSAR 17 any kind of meaning was to find the S 81 4 reduction in force statute controlling Finding that BESE and the school board acted in compliance with the RIF statute and procedures the trial court dismissed plaintiff ssuit 0 We agree Plaintiff was not removed from office Rather her position was eliminated There were no written and signed charges of willful neglect of duty or incompetency or dishonesty By the plain language of the statute the provisions of LSAR 17 regarding the removal of a tenured teacher in a S 45 special school are not applicable in this matter Further a statute must be applied and interpreted in a manner that is logical and consistent with the presumed purpose and intent of the legislature SWAT 24 Shreveport Bossier Inc v Bond 001695 pp 11 12 La 6 808 So 294 302 01 29 2d Thus we must interpret the RIF statute under the assumption that the legislature was aware of the tenure law at the time LSAR 17 was S 81 4 passed See M Farms Ltd 072371 at pp 13 14 998 So at 27 J 2d Additionally we note that pursuant to the RIF statute an employee has the right to request in writing a review of an action resulting from implementation of a RIF and to pursue the matter through the school board adopted grievance s procedure LSAR 17 We conclude that the trial court was correct S 81 5 4D in finding the RIF statute controlling Accordingly upon our de novo review of the record the trial court properly denied the motion for summary judgment filed by plaintiff granted s BESE motion for summary judgment and dismissed plaintiffs suit CONCLUSION The judgment of the trial court is affirmed assessed to the plaintiffappellant AFFIRMED 10 All costs of this appeal are STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009 CA 1386 SUSAN HAYS VERSUS LOUISIANA STATE BOARD OF ELEMENTARY AND SECONDARY EDUCATION GAIDRY J dissenting BESE maintains that La R 17 does not conflict with the S 81 4 provisions of the statute governing tenure for special school teachers La S 45 R 17 but rather that it controls the specific situation presented as a special and later enacted statute I disagree with BESE interpretation of s the statutes at issue Under the particular facts of this case the statutes must be reconciled by giving controlling weight to and liberally construing the beneficial provisions of La R 17 S 45 The change in Mrs Hays s employment position should not have resulted in a reduction in her salary as a tenured special school teacher despite the fact that she was no longer a principal The majority is in error I must respectfully dissent Principles ofStatutory Interpretation Legislative intent is the fundamental question in all cases of statutory interpretation and rules of statutory construction are designed to ascertain and enforce the intent of the statute State v Campbell 03 3035 p 7 La 04 6 7 877 So 112 117 It is presumed that the legislature enacts each 2d statute with deliberation and with full knowledge of all existing laws on the same subject Id 03 3035 at p 8 877 So at 117 It is further presumed 2d that the legislature intends to achieve a consistent body of law Id It is a fundamental rule of statutory construction that when two statutes deal with the same subject matter the statute specifically directed to the matter at issue must prevail as an exception to the more general statute Fontenot v Redell Vidrine Water Dist 02 0439 02 0442 02 0478 p 20 La 03 14 1 836 So 14 28 2d The parties here however are in disagreement as to which of the purported conflicting statutes is the general and which is the specific The meaning and intent of a law is determined by considering the law in its entirety and all other laws on the same subject matter and placing a construction on the provision in question that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting it Pumphrey v City of New Orleans 05 979 p 11 La 4 925 So 06 2d 1202 1210 Courts should give effect to all parts of a statute and should not give a statute an interpretation that makes any part superfluous or meaningless if that result can be avoided Id It is presumed that every word sentence or provision in the law was intended to serve some useful purpose that some effect is to be given each such provision and that no unnecessary words or provisions were used Lasyone v Phares 01 1785 p 4 La App 1st Cir 5 818 So 1068 1071 writ denied 02 1711 02 22 2d La 10 827 So 423 02 14 2d Promotions Under the Teacher Tenure Law The purpose of the Teacher Tenure Law is to ensure teachers with security in the position grade or status they have attained and not merely to Laws on the same subject matter must be interpreted in reference to each other La C art 13 2 ensure them with teaching employment Rousselle v Plaquemines Parish Sch Bd 93 1916 La 2633 So 1235 1242 94 28 2d The provisions of the Teacher Tenure Law must be liberally construed in favor of teachers since teachers are its intended beneficiaries Elementary Palmer v La State Bd of Secondary Educ 02 2043 p 8 La 4 842 So 363 03 9 2d 369 Louisiana Revised Statutes 17 addresses the rights of tenured 444 teachers relative to promotion and demotion in the regular public school system As provided in the statute a teacher is promoted by being moved from a position of lower salary to one of higher salary or by being moved to a higher position Courts have generally held that the terms higher salary and higher position are synonymous for purposes of determining if a change in employment constitutes a promotion See Smith v Ouachita Parish Sch Bd 29 pp 56 La App 2nd Cir 9 702 So 727 873 97 24 2d 731 writ denied 972721 La 1 706 So 198 and Pasqua v 98 16 2d Lafourche Parish Sch Bd 408 So 438 441 La App 1st Cir 1981 A 2d demotion would of course involve an opposite change in employment to one of lower salary or position Louisiana courts have therefore consistently defined demotion for purposes of La R 17 as a change from a S 444 position of higher salary to a position of lower salary See Mouras v Jefferson Parish Sch Bd 300 So 540 541 42 La App 4th Cir writ 2d denied 302 So 619 La 1974 2d In Dugas v Ascension Parish Sch Bd 228 La 80 86 81 So 817 2d 819 La 1955 the supreme court observed that the doctrine that a permanent teacher may be deprived of tenure by bona fide abolition of the position he holds has not been recognized in Louisiana Interpreting the Teacher Tenure Law as then worded the court explained 3 hereas W a school board has the unquestioned right to abolish in good faith a position occupied by a permanent teacher it cannot thereby deprive the teacher of his previously acquired status and its accompanying emoluments omitted Citations An honest discontinuance of his office does not automatically remove a permanent teacher from the school system He remains therein and should forthwith be placed in a position of standing equal to that formerly held if it be possible In any event he is nonetheless entitled to the salary attributable to the status he has attained even though he be re employed in a position oflesser rank Citation omitted Id 228 La at 87 81 So at 819 2d Emphasis added See also Long v Lafourche Parish Sch Bd 460 So 651 654 La App 1st Cir 1984 2d By Acts 1985 No 988 1 the legislature amended La R 17 S 444 to eliminate the acquisition of tenure for promotions occurring after August 1 1985 making such positions subject to contract La R 17 S 444 5 B Rousselle 931916 633 So at 1242 2d If the promoted teacher contract s in the higher position is not renewed the teacher is entitled to return to his former teaching position or a position paying the same salary as the former position Id 93 1916 633 So at 1243 2d However those teachers promoted prior to July 1 1985 retain their rights to tenure in the promoted positions As the supreme court noted in Rousselle the 1985 amendment enacting La R 17 S 444 Bwas an attempt to solve the recurring problem of the elimination or discontinuation of promotional positions and of the consolidation or demolitions of schools for economic reasons Id 93 1916 633 So at 1242 I emphasize that such economic reasons are for 2d the most part the same reasons that may necessitate a RIF Additionally the statute currently recognizes that a teacher promoted after August 1 1985 may not be offered renewal of his contract in the promoted position if the eliminated as a result of district position has been discontinued or reorganization La R 17 Significantly however La S 444 iv c 4 13 0 S 45 R 17 applicable to teachers in the special schools does not contain similar language Teacher Tenure in the Special Schools Louisiana Revised Statutes 17 was originally enacted in 1979 for 45 the purpose of providing tenure to teachers within the special school system with the same rights and privileges afforded regular public school teachers under La R 17 et seq La R 17 Palmer 02 2043 pp 8 9 842 S 442 S 43 2d So at 369 As subsequently amended La R 17 provides in S 45 pertinent part A A teacher in a special school shall be entitled to tenure benefits as follows a 1 Each teacher shall serve a probationary term of three contract years b n I the absence of notification of discharge or dismissal such probationary teacher shall automatically become a regular and permanent teacher in the employ of the special school where he has successfully served his three year probationary term a 2 A permanent teacher in a special school shall not be removed from office except upon written and signed charges of wilful neglect of duty or incompetency or dishonesty and then only if found guilty after a hearing by the board or by a committee of the board a 3 Whenever a teacher who has acquired permanent status as set forth in this Section in a special school is promoted from a position of lower salary or status in such special school to a position of higher status or salary such teacher shall serve a probationary period of three years in the higher position before acquiring permanent status therein but shall retain the permanent status acquired in the position of lower status or salary from which he or she was promoted b During the probationary period in the position to which promoted a teacher shall not be disciplined removed or demoted to the lower position from which he was promoted except in compliance with the provisions of Subsection A of 1 5 this Section At the expiration ofthe probationary period in the higher position a teacher unless removed or demoted in accordance with Subsection A of this Section shall 1 automatically acquire permanent status in the higher position and thereafter may not be disciplined removed or demoted from such higher position except in compliance with the provisions ofSubsection A ofthis Section 2 4 The provisions of Paragraph 3 of this Subsection shall apply only to those whose promotion to a position of higher salary or status as provided in Paragraph 3 occurred prior to July 1 2003 B 1 Whenever a teacher who has acquired permanent status in a special school as provided in this Section is promoted from a position of lower salary or status to one of higher salary or status such teacher shall not gain permanent status in the position to which he is promoted but shall retain permanent status acquired as a teacher C Nothing contained in the Louisiana Revised Statutes of 1950 shall be construed as conferring upon the board the authority to make rules and regulations which may impair or nulls the provisions of this Subpart and Section Emphasis added The language of this statute parallels that of La R 17 44 S 442 applicable to regular public school teachers However when La R S 444 17 was amended in 1985 to eliminate future acquisition of tenure in positions higher than that of teachers such as principal positions no corresponding change was made to La R 17 Such a change was not S 45 made until July 1 2003 when Acts 2003 No 92 1 enacted the present language of La R 17 and B and the elimination of tenure for S 45 3 A promoted positions was prospective only for promotions occurring on or after the amendment seffective date 0 Mrs Hays was promoted to the position of principal of NLDC in July 1992 Thus La R 17 S 45 3 A rather than La R 17 is applicable to the issue of her right to S 45 1 B tenure in that position A promotion for purposes of La R 17 and 13 by S 45 a 3 A 1 definition entails a change in employment from a position of lower salary or status to one of higher salary or status Emphasis added While the quoted language differs slightly from that of La R 17 addressing S 444 promotion the legal definitions of promotion and demotion for purposes of La R 17 are essentially the same as those for purposes of La R S 45 S 443 17 and 444 This court has previously held that a reduction in salary constitutes a demotion within the meaning of La R 17 See S 45 3 A Pizzolato v State ex rel Bd of Elementary Secondary Educ 452 So 2d 264 267 La App 1st Cir 1984 and Sims v State Bd of Elementary Secondary Educ 00 0056 p 9 La App 1st Cir 21601 unpublished opinion The Reduction in Force RIF Statute Louisiana Revised Statutes 17 specifically requiring published 4 81 rules relating to reductions in force was first enacted in 1983 after the enactment of La R 17 S 45 Subsection D requires that t of enure employees be included among the minimum standards established by city and parish school boards and by special schools including the SSD through BESE but does not specify the content of such standards While it is obvious that tenure is a qualification entitling an employee to preferential treatment in the event a RIF is instituted the statute is silent regarding the effect of a RIF on tenure in a promoted position While the statute recognizes the authority and discretion of a school boards in implementing a RIF the statutory reference to tenure necessarily incorporates by reference 7 the protective parameters and restraints of the Teacher Tenure Law Thus in the case of the SSD any RIF policy must implicitly comport with the provisions of La R 17 S 45 There is limited jurisprudence interpreting La R 17 BESE S 81 4 relies upon the case of Burns v Monroe City Sch Bd 577 So 1205 2d 1208 09 La App 2nd Cir writs denied 581 So 683 686 La 1991 in 2d support of its position that the RIF statute is controlling here and effectively preempts the tenure provisions of La R 17 I disagree and find S 45 3 A Burns clearly distinguishable In the first place Burns did not involve a promoted teacher in a special school nor did it address the express provisions of La R 17 Secondly it involved an improper S 45 3 A demotion of a supervisor made under the guise of contract nonrenewal contrary to a RIF policy that actually controlled the situation and dictated the s supervisor retention over that of an uncertified supervisor Additionally the promoted position was a contract position under La R 17 S 444 Bnot a tenured position as the supervisor was promoted after August 1 1985 Burns simply does not stand for the broad assertion put forth by BESE BESE contends that Section 111 of the manual RIF policy adopted s pursuant to La R 17 dispositive of the factual situation presented S 81 4is here Where the legislature has delegated to an administrative agency certain administrative or ministerial authority the regulations promulgated by the agency may not exceed the authorization delegated by the legislature State v Domangue 93 1953 p 5 La App 1st Cir 12 649 So 94 22 2d 2 Section 111 provides An employee reassigned to a different job title shall be placed on the appropriate salary schedule at the step for which the employee is qualified An employee accepting assignment to a lesser position will be placed within the salary schedule for the lesser position at the level appropriate to the employee years of experience and education s 91 1034 1038 See also La R 17 Section 111 cannot supersede the S 45 C provisions of positive law set forth in La R 17 S 45 BESE essentially contends that Mrs Hays was not actually demoted because the change in her employment position was made pursuant to the SSD RIF plan and not for any of the three reasons for disciplinary demotion set forth in La R 17 In that regard it cites Nicholson v St S 45 2 A John the Baptist Parish Sch Bd 97 846 pp 34 La App 5th Cir 98 14 1 707 So 94 95 for the proposition that a tenure hearing under 2d La R 17 or the corresponding language of La R 17 is S 443 S 45 2 A only required in cases of disciplinary dismissal or demotion I disagree While I agree that the hearing contemplated under La R 17 is S 45 2 A intended to provide due process in cases of disciplinary dismissal or demotion this begs the question as to the threshold issue of BESE lack of s authority under La R 17 to demote Mrs Hays to a position of S 45 3 A lower salary Nothing in the language of La R 17 suggests that the S 81 4 accepted definition of demotion for purposes of tenure under either La R S 444 17 or La R 17 was implicitly modified or repealed so as to S 45 exclude from that definition a change to a lower position due to a RIF plan or policy As a matter of law the change in Mrs Hays position to one of s lower salary constituted a demotion Further the 1985 amendment to La S 444 R 17 and the 2003 amendment to La R 17 both enacted S 45 subsequent to La R 17 S 81 4suggest that the legislature intended to shield those tenured teachers promoted prior to the amendments effective dates from that effect of a RIF plan or policy Louisiana Revised Statutes 17 constitutes a special law 3 A 45 applicable to tenured special school teachers promoted prior to July 1 2003 to higher positions Further as that particular provision was enacted E subsequent to the original enactment and the subsequent amendments of La S 81 R 17 it must be presumed that the legislature failure to include 4 s language authorizing a reduction in pay for such tenured special school principals and other supervisory employees in the event of a RIF was intentional The express language of La R 17 limits the causes S 45 3 A for demotion of such employees to those enumerated in Subsection A 2 and Subsection C expressly precludes the adoption of any rule or regulation by BESE that might impair or nullify the statute provisions s Interpreting the statute provisions liberally in favor of teachers tenure s rights as we are required to do the inescapable conclusion is that BESE has no authority to adopt any rule or regulation in contravention of La R S 3 A 45 17 and that Section 111 of BESE RIF policy is inapplicable to s special school teachers promoted prior to July 1 2003 Thus as Mrs s Hays demotion did not comply with La R 17 explicit terns S 45 s 3 A and deprived her of a vested property right in contravention of law it had no legal effect See Palone v Jefferson Parish Sch Bd 306 So 679 682 2d La 1975 The trial court judgment was incorrect under the facts and s applicable statutory language It is quite true as the majority notes that the Teacher Tenure Law was not intended to guarantee job security where there are no jobs But such was not the situation in Mrs Hays case she was offered and accepted an s available job in the SSD Because she was promoted prior to July 1 2003 she was clearly entitled to the benefit of the protection against reduction in her salary provided by the unambiguous language of La R 17 S 45 3 A 3 In reaching this conclusion I agree that the record supports the conclusion that the RIF plan at issue was undertaken in good faith and for valid reasons Nevertheless because the language of La R 17 is clear and unambiguous and directly addresses the S 45 situation at issue its plain language cannot properly be disregarded under the pretext of following its spirit or the perceived spirit of La R 17 S 81 4 10 The judgment of the trial court should be reversed and summary judgment should be rendered in favor of the plaintiff appellant Ray Hays and against the defendant appellee the Louisiana State Board of Elementary and Secondary Education declaring that Susan Ann Smith Hays was improperly demoted and awarding the plaintiff appellant the accrued difference between Susan Ann Smith Hays prior salary of 73 and her salary s 96 926 of 64 as of July 1 2004 and thereafter and all emoluments relating 09 383 thereto For the foregoing reasons I dissent 11
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