Opinion
January 3, 2002
47-A-3 FIRE PROTECTION DISTRICT R.S. 33:1995; R.S. 33:1996; R.S. 33:1999; R.S. 33:2431 et seq., R.S. 33:1991; R.S. 33:1991
A fire protection having five full-time paid firefighters must be placed in civil service.
Mr. Richard W. Watts Attorney at Law 914 Pearl Street Franklinton, Louisiana 70438
Dear Mr. Watts:
You advise this office that the Washington Parish Fire Protection District #7 (hereafter District 7) has hired five full time paid firemen. Arising out of this occurrence are the following two questions:
1. Is a rural fire protection district with five full time paid firemen required to establish a civil service system for its employees pursuant to R.S. 33:2531, et seq.?
2. Do the terms and conditions of employment mandated by R.S. 33:1991, et seq. apply to a rural fire protection district which employs five paid fireman?
We answer your first question in the affirmative. Article X Sec 16 of the Louisiana Constitution (1974) provides for the establishment of a classified fire and police civil service system which is applicable "to all municipalities having a population exceeding thirteen thousand and operating a regularly paid fire and municipal police department and to all parishes and fire protection districts operating a regularly paid fire department." (Emphasis added).
The constitution mandates that a system of classified fire civil service be created for fire protection districts operating a "regularly paid fire department". This office has determined that one full time employee constitutes a regularly paid fire department. See attached Attorney General Opinions 93-728 (A); 95-37; and 98-267.
Further, R.S. 33:2531, et seq., which provides the fire civil service law for fire protection districts, contains no size requirement for the creation of a classified civil service system in a fire protection district. The only requirement is that the fire protection district operate a regularly paid fire department, as District #7 does, by virtue of its employ of five full time firemen. See Attorney General Opinion 93-354, copy attached.
Our response to our second question is also in the affirmative. LSA-R.S. 33:1991 states in pertinent part:
A. The word "firemen," as used in this Sub-part includes all persons employed or engaged full time by municipalities or municipal fire departments or by parishes or parish fire departments or fire protection districts for fire fighting or fire prevention duties and services, including operators of the fire-alarm system when such operators are members of the regularly constituted fire department. The word "firemen" does not include carpenters, storekeepers, machinists, clerks, building hazard and similar inspectors, physicians or other non-fire fighting employees detailed for such special duties, nor does the word "firemen," include employees of privately owned or operated fire fighting or fire prevention services. (Emphasis added).
Thus, the statutory provisions for minimum wages are applicable to "fire protection district paid firemen"; (see R.S. 33:1992); note also that those provisions pertaining to sick leave and annual vacation are applicable to firemen employed by a fire protection district (see R.S. 33:1995 and R.S. 33:1996), and that R.S. 33:1999 is applicable as it pertains to work on holidays.
Should you have other questions in which we may provide assistance, please contact this office.
Very truly yours,
RICHARD P. IEYOUB ATTORNEY GENERAL
BY: ___________________________________ KERRY L. KILPATRICK ASSISTANT ATTORNEY GENERAL
KLK:ams
OPINION NUMBER 93-728 (A)
March 8, 1994
47-A-1 FIRE PROTECTION DISTRICTS 71-1-1 MUNICIPAL FIRE POLICE CIVIL SERVICE LSA-Const. Art. X, Sec. 16
Reconsidering opinion 93-728, we conclude that fire civil service is applicable to a paid firefighter in a volunteer fire department.
Mr. Paul K. Daly State Examiner P.O. Box 44366 Baton Rouge, LA 70804-4366
Dear Mr. Daly:
As State Examiner of the Municipal Fire and Police Civil Service, you have asked this office to reconsider the conclusions of released opinions 93-728 and 93-354.
ISSUE I
In released opinion 93-728, the author addressed what constitutes a "regularly paid fire department" for purposes of application of a system of classified fire civil service. LSA-Const. Art. X, Section 16 (1974) requires that such a system be created for all municipalities, parishes, and fire protection districts operating a "regularly paid fire department".
There is no jurisprudential or statutory authority defining a "regularly paid fire department." In 93-728, the author concluded that a volunteer fire organization with one paid employee is not sufficient for the establishment of fire civil service.
We reconsider our conclusion in opinion 93-728, having reexamined the holding in the case of Village of Varnado v. Varnado Fire Dept. 563 So.2d 946 (La.App. 1990). In Varnado, supra, the court did not address the issue of whether one regularly paid employee was sufficient to constitute a regularly paid fire department for purposes of eligibility to receive tax proceeds. Rather, the court concluded that there was no regularly paid fire department because there were no regularly paid employees during the time period in question. The case does not stand for the proposition that one regularly paid employee is insufficient to establish a regularly paid fire department for purposes of receipt of tax proceeds, nor for purposes of application of fire civil service.
The doctrine of contemporaneous construction provides that when an administrative body has, over a long period of time, placed an interpretation upon a legislative enactment, that interpretation is entitled to great weight in the determination of the meaning of the legislative enactment. Swetman v. Teachers' Retirement System, 578 So.2d 149 (La.App. 1st Cir. 1991). However, when no ambiguity exists in the statute or the construction of the administrative body is clearly erroneous, this doctrine is inapplicable. Swetman, and citations therein.
This office is of the opinion that ambiguity is present because the definition of a "regularly paid fire department" is susceptible to varying interpretations. Further, the doctrine of contemporaneous construction is applicable as you advise your agency has for many years established "several boards which initially had only one or two full time employees". We therefore recall our conclusion in opinion 93-728, and defer to the interpretation of your agency concerning what may constitute a "regularly paid fire department", absent a juriprudential or statutory definition.
ISSUE II
Regarding released opinion 93-354, this office affirms the conclusions stated therein. The author correctly concluded that a fire protection district operating a regularly paid fire department is required to create a classified fire and police civil service system.
Use of the word "shall" in LSA-Const. Art. X, Section 16 (1974), cited above is mandatory concerning the establishment of a fare and police civil service system to a "fire protection district operating a regularly paid fire department". Further, opinion 93-354 as written is consistent with our reconsideration of 93-728, stated herein.
Please contact this office should you need further assistance.
Yours very truly,
RICHARD P. IEYOUB ATTORNEY GENERAL
BY: KERRY L. KILPATRICK Assistant Attorney General
RPI/KLK/93-728(A)
OPINION NO. 93-354
June 17, 1993
71-1-1 MUNICIPAL FIRE POLICE CIVIL SERVICE
LSA-Const. Art. X, Section 16; LSA-R.S. 33:2531 et seq. R.S. 33:2535, R.S. 33:2536; West v. Allen, 382 So.2d 924 (La. 1980); LSA-Const. Art. 10, Sections 16-20; Repealing Atty. Gen. Opinion No. 86-27.
LSA-R.S. 33:2535 provides for a classified civil service system to be created in each municipal government, parish government, and in the government of each fire protection district. There is no size requirement for the creation of a classified civil service system in a parish and a fire protection district. It is irrelevant that the Caddo Parish Fire District No. 8 has a population of less than nine thousand. Therefore, the Caddo Parish Fire Protection District No. 8 is required to create a classified fire and police civil service system.
Mr. W. H. Applegate Secretary-Treasurer Board of Commissioners, Fire Protection District No. 8 111 W. Alabama Street Vivian, LA 71082
Dear Mr. Applegate:
We are in receipt of your request for an Attorney General's Opinion regarding the Caddo Parish Fire Protection District No. 8. In your letter you state that the district can only afford to hire two employees, a fire chief and a dispatch firefighter. You also state that the Caddo Parish Fire Protection District No. 8 has a population of less than nine thousand (9,000). Specifically, you have asked whether the Caddo Parish Fire Protection District No. 8 is required to form a Fire and Police Civil Service system, as provided by Article X of the Louisiana Constitution of 1974?
LSA-Const. Art. X, Section 16 provides for the establishment of a classified fire and police civil service system which is applicable "to all municipalities having a population exceeding thirteen thousand and operating a regularly paid fire and municipal police department and to all parishes and fire protection districts operating a regularly paid fire department." (Emphasis added.) LSA-R.S. 33:2531 et seq. provides for the fire and police civil service law for small municipalities and for parishes and fire protection districts. LSA-R.S. 33:2531 specifically states, in pertinent part:
§ 2531. Mandatory civil service in certain municipalities, parishes, and districts
Permanent appointments and promotions for paid firemen and policemen in the classified civil service as enumerated herein in all municipalities having a population of not less than seven thousand and not more than thirteen thousand, ... and in all parishes and fire protection districts, shall be made only after certification pursuant to a general system based upon merit, efficiency and fitness, under which certificates shall be based on examinations which, so far as practical, shall be competitive, and all employees in the classified service shall be employed from those eligible under certification.
(Emphasis added.)
Section 2535 provides for a classified civil service system to be created in each municipal government, parish government, and in the government of each fire protection district. Likewise, a fire and police civil service board is created or each governing body in Section 2536 of Title 33 of the Louisiana Revised Statutes. The Louisiana Supreme Court in West v. Allen, 382 So.2d 924 (La. 1980), found that the Constitution (Art. 10, §§ 16-20) clearly establishes a system of classified fireand police civil service in all towns of a certain size and in all parishes and fire protection districts operating a regularly paid fire department. There is no size requirement for the creation of a classified civil service system in a parish and fire protection district, therefore, it is irrelevant that the Caddo Parish Fire Protection District No. 8 has a population of less than nine thousand. The only requirement by law is that the parish and fire protection districts operate a regularly paid fire department. Therefore, it is our opinion that the Caddo Parish Fire Protection District No. 8 is required to create a classified fire and police civil service system. By this opinion, we hereby repeal Atty. Gen. Opinion No. 86-27, which is in conflict with this opinion.
If we can be of further assistance in this matter, please advise.
Sincerely,
RICHARD P. IEYOUB ATTORNEY GENERAL
By: Angie Rogers LaPlace Assistant Attorney General
ARL/lg
OPINION NUMBER 95-37
February 9, 1995
A fire Protection having three full-time paid firefighters must be placed in Civil Service.
R.S. 33:2543 Art. X, Sec. 16 La. Const. 47-A-1 Fire Protection District
Thomas O. Wells, Esq. Assistant District Attorney Ninth Judicial District P.O. Drawer 1472 Alexandria, LA 71309
Dear Mr. Wells:
This office is in receipt of your request for an opinion of the Attorney General on behalf of the Rapides Parish Police Jury in regard to firefighters in the Rapides Parish Fire Protection District #3. You indicate there are three full-time firefighters in the Protection District and the Rapides Parish Police Jury asks if this constitutes a "regularly paid fire department" as used in Art. X, Sec. 16 of the Constitution so as to require that the firefighters be classified civil service employees.
As you recognize this office has previously rendered Attorney General Opinions relative to this subject for you state you have advised the Police Jury of Atty. Gen. Op. Nos. 94-122, 93-728 and 93-728(A). This office in the more recent opinion Atty. Gen. Op. No. 94-441 reaffirmed Atty. Gen. Op. No. 93-728 and 728(A) which had concluded by the use of the word "shall" in Art. X, Sec. 16 of the Constitution of 1974, a fire and police civil service system is mandatory for a "fire protection district operating a regularly paid fire department", and followed the interpretation of the State Examiner that where there is only one or two full-time firefighters there is a requirement for civil service. This was in accord with the conclusions of this office in Atty. Gen. Op. No. 93-354 that "a fire protection district operating a regularly paid fire department is required to create a classified fire and police civil service system."
In Atty. Gen. Op. No. 94-441 the question was presented whether the Iberia Parish Council or the Fire Protection District No. 1 had the authority to establish a civil service system for the employees of the fire district. This office relied upon R.S. 33:2543 which provides that "each board shall adopt a classification plan for the fire and police service under its jurisdiction" and found that the Board of the Fire Protection District having a "regularly paid fire department" is to establish Civil Service for the full-time paid firefighters.
We hope this sufficiently answers your question, but if we can be of further assistance, do not hesitate to contact us.
Sincerely yours,
RICHARD P. IEYOUB Attorney General
By: __________________________ BARBARA B. RUTLEDGE Assistant Attorney General
BBR
OPINION NUMBER 98-267
August 3, 1998
84 — Parishes LSA-R.S. 33:2531 LSA-R.S. 33:2533 LSA-R.S. 33:2535 LSA-R.S. 33:2536 LSA-R.S. 33:2541 LSA-R.S. 33:2451A(1-9)
A single full-time firefighter requires Plaquemine Parish to establish a separate firefighter civil service system.
Mr. Kevin Conner Council Attorney Plaquemines Parish Government P.O. Box 538 Belle Chasse, LA 70037
Dear Mr. Conner:
This office is in receipt of your recent opinion request in regard to firefighters and civil service. Specifically, you ask the following three questions:
1. Does a single full-time firefighter have to be placed in the Civil Service System?
2. Does a part-time paid firefighter have to be placed in the Civil Service System?
3. Assuming that either question one or two is answered in the affirmative, can the Plaquemines Parish Government utilize its own Civil Service System and place the firefighter in a separate category underneath that system, or must an entirely new civil service system dedicated to firemen be established?
As you recognize, this office has previously rendered opinions regarding this matter. Most recently, Atty. Gen. Op. No. 95-37, which cited Atty. Gen. Op. Nos. 94-441, 93-728, and 93-728(A), concluded that a "regularly paid fire department" must be placed in the civil service system as required by Art. X, Sec. 16 of the Louisiana Constitution of 1974. These previous opinions, following the interpretation of the State Examiner, say that one full-time firefighter meets the requirement of a "regularly paid fire department" and therefore requires a civil service system.
In reviewing LSA-R.S. 33:2533, which defines terms used when referring to the fire and police civil service law, we find that there is no definition for part-time paid firefighters. LSA-R.S. 33:2531 mandates that any permanent appointment for a paid firefighter shall occur only after certification pursuant to the general system. This statute does not make a distinction between full-time and part-time firefighters. It simply refers to any permanent appointment. Therefore, it is our opinion that under this statute, a part-time paid firefighter should be placed in a civil service system as long as his appointment is permanent and he meets the test set out in LSA-R.S. 33:2541. This statute must be considered when determining whether an employee is classified or unclassified. In order to be classified, the employee must have as a primary duty one of the duties listed in LSA-R.S. 33:2541A(1-9). Therefore, if a part-time firefighter does not have one of the listed duties as his or her primary duty, then he or she should be unclassified.
In regard to your third question, LSA-R.S. 33:2535 and 33:2536 mandate the creation of "The Fire and Police Civil Service" and the fire and police civil service board, respectively. LSA-R.S. 33:2535 creates a classified civil service system in each parish government. LSA-R.S. 33:2536 sets out the requirements for creating a fire and police service board. It is our opinion that Plaquemines Parish must create a civil service system for firefighters separate and apart from the government civil service system if it is operating a regularly paid fire department. This is consistent with Atty. Gen. Op. Nos. 93-728(A) and 93-354.
In conclusion, it is the opinion of this office that (1) a single full-time firefighter must be placed in the civil service system; (2) a part-time paid firefighter should not be placed in a civil service system if he or she does not meet the "primary duty" test; and (3) Plaquemines Parish must create a separate civil service system for firefighters as long as it is operating a regularly paid fire department.
We hope this sufficiently answers your questions, but if we can be of further assistance, do not hesitate to contact us.
Yours very truly,
RICHARD P. IEYOUB ATTORNEY GENERAL
By: __________________________ ROBERT B. BARBOR Assistant Attorney General
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