Cover Story

Still Smoldering

by Nathan Stubbs

Is this the year that a class action lawsuit representing more than 10 years of tension between City Hall and the police and fire departments finally gets resolved?

The downtown Central Fire Station is unusually quiet when Chief Robert Benoit arrives at work. Few firefighters are around as he walks through the fire truck bay area and up the narrow stairs to his office. As he steps in the door, the phone is already ringing off the hook — and Benoit’s fears are quickly confirmed. Of the 64 firefighters on the day’s work schedule, 34 have called in sick. A skeleton crew is manning each of the city’s 11 fire stations, and every firefighter on call is noticeably uneasy about the situation. As the morning progresses, reports come in of other firefighters going home, claiming to be ill. Every cough begins to draw stares. City Hall wants answers.

The “blue flu” sickout in April 2000 is likely the biggest political fire Benoit’s had to put out in his 28-year career with the department. Prompted by firefighters’ discontent over their salaries, city government’s attempts to derail union organization and other news of pending budget cuts to the department, the incident remains a sore subject for many in the department. Eight years later, the issues that spurred the strike haven’t been fully resolved, and morale can still be an issue.

“When [firefighters] don’t get things they feel they should be getting, they get frustrated,” says Benoit, seated in his office behind a mahogany desk. “I try to get them to understand that in government, things move slow.”

The biggest hangover still lingering from the tensions surrounding the blue flu standoff is the ongoing legal battle that pits many veteran firefighters and police officers, along with a handful of city marshals, against Lafayette Consolidated Government. The case includes more than 600 plaintiffs who claim millions owed in back pay; they’re due varying amounts depending on their salaries and seniority within the department at the time in question. The list of the biggest potential beneficiaries, who stand to gain individual awards of up to $35,000 according to one court estimate, reads like a who’s who of the Lafayette Police and Fire departments over the past decade: Police Chief Jim Craft, Fire Chief Robert Benoit, Police Association leaders Guy LeBreton and Les Jones, embattled former Police Chief Randy Hundley, retired firefighter and current City-Parish Councilman Jay Castille, firefighter union head Donald Chauvin and longtime fire inspector Forrest Chaisson.

The case has long been a political hot potato and a festering thorn in the side of city-parish government.

Filed in 1999, the suit pertains to an antiquated pay plan the city of Lafayette put into effect in 1978. (A statute of limitations confines the amount of back pay the city owes to a period of about six years.) The courts have already ruled in favor of the police and firefighters. In 2006, the Louisiana Supreme Court turned down an appeal from the city, in effect affirming the Third Circuit Court of Appeal ruling. While the city has been deemed liable, subsequent court hearings to determine the amount of damages owed are ongoing, with the city’s estimates varying greatly from those of the plaintiffs. Further complicating the matter is a law protecting municipalities from being forced to pay judgments.

As the suit lingers, police and firefighters have expressed growing resentment, saying that the city is dragging its feet. Other observers have quietly questioned the motives and politics of the police and fire unions. “This thing has kind of been like a nagging cold that you can’t get rid of,” says City-Parish Councilman Brandon Shelvin. He’s part of the large freshman class elected to the council last year and ran his campaign in part on a pledge to resolve the long-standing lawsuit. “I feel like our word is already out there,” Shelvin says, referring to similar pledges made by the other councilmen during their campaigns. “We need to make sure that we do everything in our power to resolve this.”

For Councilman Jay Castille, a retired firefighter and a plaintiff in the lawsuit, the issue is personal. A longtime official with the fire union, Castille remembers all too well the standoffs with City Hall that both preceded and followed the lawsuit. “This thing could’ve ended for the firefighters a long, long time ago for a lot less money,” Castille says. “But that’s what you get when you get an administration who thinks they know everything. And instead of listening and trying to sit down and talk with its employees, they try to keep them under their thumb. This is a result of that issue right there.”

“What I’m doing,” he adds, “is I’m trying to heal that wound. I’m trying to get it back and try to work with the guys and the administration to do the right thing.”

In 1978, the city of Lafayette, under the late Mayor Kenny Bowen, adopted a pay plan for fire, police and marshals that officials felt would help boost recruitment and retain more officers. The plan essentially advanced new officers their state supplemental pay, a monthly stipend of up to $300 that generally kicks in after a year on the job. Then, in year two, when state supplemental pay started, the city took away its supplement, effectively keeping salaries at a flat rate.

“It originally was a sort of compromise,” recalls former Mayor Dud Lastrapes, who succeeded Bowen in 1980. “It was a good faith agreement to advance the supplemental pay.” Lastrapes doesn’t recall any problems or controversies arising over the pay plan throughout his tenure in the mayor’s office, which ended in 1992.

Complaints over the pay plan become evident in the late ’90s, under former City-Parish President Walter Comeaux. Several officers close to the suit credit former Lafayette Police Maj. Les Jones, who was active with both the local and state police unions, with helping to raise questions about the pay plan.

Two state statutes (La. R.S. 33:2005 and La. R.S. 33:2218.5) that went into effect in 1979 and separately cover police and firefighters are at issue. They each state that any reduction of an employee’s salary by a governing body “shall be made void where it is made solely by reason of the additional compensation by the state.” The city argued that the pay reductions were not being made “solely” because of the state supplemental, but rather for reasons of recruitment, retention, enhancement of retirement credits and increased overtime pay. In his 2005 ruling, Judge James Genovese of the Third Circuit Court of Appeal refers to another section of the statutes that prohibit “any reduction in salary or benefits.” “If advance pay is not part of the salary,” Genovese writes, “then it has to be considered a benefit.”

Lafayette was among several city police and fire departments in the state, including Shreveport and Lake Charles, that took issue with the way local governments were utilizing state supplemental payments. Locally, officers began complaining that the city was taking further deductions from their salaries each time state supplemental pay would increase. Another dilemma arose when officers already receiving state supplemental checks transferred in from other departments. Whenever the Lafayette Police Department discovered this situation, it began ordering those officers to pay back their state supplemental money to the department. Officers were sometimes threatened with disciplinary action if they didn’t comply and, in the case of one firefighter, the city went so far as to attempt to garnish his wages to recoup supplemental funds.

Lafayette Police Chief Jim Craft recalls that the officers’ complaints largely fell on deaf ears. “For several years,” he says, “officers asked the city to just stop this and we’ll call it square. If they had stopped then, it wouldn’t have cost [the city] a penny.”

In 1998, a group of police officers hired local attorney Danny Landry, who then fired off a letter to Lafayette Consolidated Government’s Chief Administrative Officer Glenn Weber. The letter effectively put LCG on notice that the officers felt the city’s pay plan was in violation of state law, and that if the situation wasn’t immediately handled, the officers would file suit. Weber responded with a letter that concluded, “Within the course of the next two weeks, we are in hopes of employing a new Human Resources Manager who will hold pay plan/administration expertise and be charged with the responsibility of reviewing those different pay plans which fall under the auspices of the Lafayette Consolidated Government. It is our intent, through this new resource and a representative group of police officers, to address those police-related issues and to work in the direction of a feasible long-term plan of action in that regard.” (Weber did not return multiple calls for comment for this story.)

Two months later, the officers filed suit, and the firefighters’ union joined shortly thereafter. “The firefighters, we tried to iron it out with the past administration,” says Councilman Castille. “We gave them options, and they were pretty much totally unreceptive. They didn’t really want to talk to us about it. I guess they figured we didn’t know what we were talking about.”

The lawsuit spurred the city to action. In November 2001, the city adopted a new pay plan that corrected the legal problems associated with supplemental pay. In 2003, voters approved a new millage dedicated to improving officers’ salaries.

Attorney Landry also recalls the two parties almost reaching a settlement agreement. District Judge Ed Rubin had already ruled in favor of the officers, and the city was preparing to appeal. Weber was also gearing up to run for city-parish president and wanted to see if he could put the issue to rest. Landry says there were several informal meetings with Weber and then-city attorney Steve Dupuis in which they suggested revenues from the new millage tax could also be used to pay out a settlement. Landry notes this was before any real calculations had been done on the amount owed the officers, who nearly accepted an offer “in the $2.1 million range.”

“We actually had a meeting with the policemen and presented the offer to them,” Landry says. “We had them do a straw vote, and it was split. It was like 52 percent did not want to accept and 48 percent did.” At the meeting, a vocal faction demanded that the city needed to respect the same laws that the officers swore to protect and uphold. “And then obviously as it progressed,” says Landry, “and we were successful [with the lawsuit], the money continued to grow.”

In his law office, located in a white 1960s-era house on General Mouton Avenue, Landry has a dozen boxes of files on the police and firefighter back pay suit. “This thing just needs to be over with,” he says. “Everybody just needs to move forward, and I’m running out of places to put papers.” Sifting through one box, he pulls out a newspaper clipping of a 2005 interview with City-Parish President Joey Durel.

“Any time he said anything about [the case], I would pull it out,” Landry notes. Since Durel came into office in 2004, Landry says there’s been hope that a compromise agreement will be reached — except it doesn’t seem a top priority. “My only problem with the Durel administration is they haven’t moved this to the front of the line,” Landry says. “They’ve dealt with fiber optics and the traffic situation here.”

“They’ve been more receptive [than the previous Walter Comeaux administration] to trying to resolve the [back pay] issue,” he continues. “It appears to me that the problem in their mind is that they don’t have the ability to fund it, which I take issue with. I’m convinced that if the Durel administration puts it at the front of the line, it will get resolved.”

Durel counters that he has made settling the suit a priority. However, he says throughout his first term in office, he faced a council that was openly hostile to the idea. The previous council had several public feuds with police and firefighters over salaries and other issues.

“There was a lot of history there and a lack of trust on both sides,” Durel says. “Without a council vote, we could do nothing.”

“I’m optimistic now,” the city-parish president adds, “because I think with this new council there are some much more realistic possibilities.”

Durel also contends that the other side has had its hand in prolonging a resolution. He says he has heard back from several higher-ups in the police and fire departments who never get word of some of the city’s settlement offers.

“It’s been a little bit frustrating for me,” Durel says. “We make offers and counter-offers very timely, and then we find out that the other side isn’t even communicating with the people they represent.”

Throughout the negotiations, local government has faced mounting legal fees. Since May 1999, LCG has spent approximately $270,000 on attorneys’ fees for the case.

Landry says that because municipalities are protected from being forced to pay any judgments, the case has become inherently political. “The whole problem here is municipalities are exempt from seizure,” he says. “They have this built-in immunity that they don’t have to pay so they’ve stood behind that for a long time. The only way that this is going to get resolved is that the community is going to get in an uproar that it’s so unfair that everybody has to pay their bills and it becomes a political decision. So this is a political issue. It shouldn’t be, but it is a political issue.”

The implications were evident during last year’s local election, where a slew of council candidates made resolving the back pay lawsuit a part of their campaign platforms. Many now intend to make good on that promise.

“Oh, it’s going to happen this year,” Councilman Castille asserts. “It has to happen this year. There’s no doubt. We want it done immediately. This council wants it done now.”

Though he is a plaintiff in the suit, Castille has insisted on being a part of council briefings with the city-parish attorney on the case. Last week, council chair Don Bertrand postponed the council’s first scheduled briefing in order to wait on a Louisiana Board of Ethics opinion regarding the extent to which Castille can be involved. That ruling is expected this week. It is also unclear how much influence the council will have in the decision. Typically, settlement negotiations are handled solely by the administration, with the council’s role limited to a vote ratifying or rejecting any agreement that may be reached.

While all parties have expressed a desire to see the case settled, the sticking point has been the amount owed. Local government’s estimates have varied greatly from that of the fire and police officers. Much of the discrepancies have to do with the amount of interest, retirement payment and other benefits that get factored into the wages owed. Last year, a court-ordered CPA report put the principal amount as high as $9 million, with another possible $6 million due in interest. However, the court also acknowledged several errors in the methodology used in the report, including the way interest was calculated and the inclusion of both the employer and the employee’s share of retirement payments in the principal amount. A revised report has been completed and should be released at a hearing scheduled for March 17 before District Judge Ed Rubin.

Meanwhile, settlement talks are ongoing. Landry says the Durel administration made an offer of $6.1 million earlier this year. His clients have since countered with an offer of $10.1 million. Durel says he believes the principal amount will prove to be under $7 million, noting that many cities, including Baton Rouge, have laws preventing the payment of interest on similar settlement agreements.

“I have found that their counter-offers haven’t seemed to have come from somebody who was really interested in settling this,” Durel says.

Councilman Bruce Conque, the only councilman to be re-elected last year, says that any number in this range will be a difficult bill for local government to pay. Conque, who chairs the council’s finance committee, says city-parish government is likely facing at least a six-year payout for any settlement. This would include a downpayment up front, which would probably be around 25 percent of the overall payout. By law, any appropriation must identify the source of funds.

“It’s going to be tough finding $1 million a year,” says Conque, who’s in favor of settling the case. However, he says it will likely force the council to make other tough decisions come budget hearings. “It’s not like we have the money sitting out there,” he says. “No matter whether the number is $6 million or $10 million, that’s money we’re going to have to find.”

Conque says the city finance department is already looking at department requests totaling some $30 million over budget. “There are going to be some very difficult political and emotional decisions involved,” he says. “You’re going to have to cut services somewhere.”

For police officers like Cpl. Guy LeBreton, an internal affairs investigator and president of the local police association union, the employees are simply asking for what’s owed them. “This is wages,” he says. “This is not punitive damages; this is not suffering and pain and pie in the sky unimaginable damages. This is clear mathematical calculations from a CPA. That’s all we’re asking for. We want to be made whole.

“This is not going to make us millionaires,” he continues. “We’re not going to be able to buy houses. But [we could do] a little paying off of credit cards, or buying your kids the gifts that the other kids are talking about at school. The day-to-day things are hard to do.”

LeBreton likens the settlement payouts to the economic stimulus bill recently proposed by President Bush and approved by Congress. “I know officers,” he says. “They’re going to go out and they’re going to spend their money locally on some toys, a four wheeler or a boat. They’re going to go get a membership at the golf course that they couldn’t afford before. There’s going to be an immediate impact on the local businesses here.”

“Yeah, it’s $10 million to the city of Lafayette,” he adds. “But when you reinvest that $10 million in the city of Lafayette, the cost to government is going to decrease because they’re going to get some tax returns on all that.”

In addition, LeBreton says there are several additional intangible benefits to resolving a case he says has been a “black eye” for the city. Resolving it, he says, will go a long way toward instilling pride in the Lafayette Police Department and giving officers a brighter outlook.

“Officers are a strange breed,” LeBreton says. “We truly do love what we do, or we wouldn’t be here. We’re not ones to walk around and point fingers and lay blame unless it’s absolutely unavoidable. It generally takes a lot to get the policemen to speak out and take the action that we’re taking. And, in this case, I don’t think we had a choice.”