Opinion
No. CA 8635.
July 12, 1988. Writ Denied November 11, 1988.
Gary M. Pendergast, Verlander, Pendergast Richards, New Orleans, for plaintiff-appellee.
Michael A. Starks, Asst. City Atty., Val K. Scheurich, III, Deputy City Atty., Don J. Hernandez, Chief Deputy City Atty., Okla Jones, II, City Atty., New Orleans, for defendant-appellant.
Before SCHOTT, WARD and ARMSTRONG, JJ.
Appellant had been dismissed from the Department of Police for misconduct, but the dismissal was ultimately reduced to a six month suspension in the appeal process, 483 So.2d 1259 (1986). In the meantime he drew unemployment compensation. When his back pay was computed it was reduced by the amount of compensation he received. He appealed to the commission which ordered the Department to reimburse him for the amount deducted. The Department appeals.
R.S. 49:113, which authorizes the appointing authority to set off wages and salaries earned by an employee in private employment in a period of separation against the amount of back pay due him when he is found to have been wrongfully discharged, does not authorize set off of unemployment compensation. Alongi v. Department of Police, 480 So.2d 1001 (La.App. 4th Cir. 1985), writ denied, 481 So.2d 1351 (La. 1986).
Accordingly, the judgment appealed from is affirmed.
AFFIRMED.
I disagree with the holding in Alongi because the employee is doubly compensated when he retains the benefits of unemployment compensation after reinstatement with back pay. I do not construe R.S. 49:113 to mean that earnings from private employment are the only permissible setoff against back pay. Nonetheless, until overruled, we must follow Alongi.