author: LOTTINGER, Judge.

text:
    Richard P. BOYD, Jr., et al. v. LOUISIANA STATE EMPLOYEES’ RETIREMENT SYSTEM, et al.
    No. 84 CA 0095.
    Court of Appeal of Louisiana, First Circuit.
    May 1, 1984.
    Writ Denied July 17, 1984.

      Robert L. Roland, Baton Rouge, for plaintiffs-appellees Richard P. Boyd, Jr., Wilmore J. Broussard, Jr., Burrell J. Carter, Jules L. Davidson, Jr., Leon Ford, III, Walter I. Lanier, Jr., Cleveland J. Marcel, Sr., Paul A. Newell, John S. Pickett, Jr., Eddie L. Sapir, Louis P. Trent, O.L. Wait-man, Jr. and Darrell D. White.
    William C. Toadvin, Asst. Atty. Gen., Baton Rouge, for defendants-appellants Louisiana State Employees’ Retirement System and the Board of Trustees of the System.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   LOTTINGER, Judge.

This is an appeal by the defendants, the Louisiana State Employees’ Retirement System and the Trustees charged with administration thereof, from a judgment of the trial court declaring that plaintiffs, several judges of courts of record, are correct in their interpretation of the Retirement Plan for Judges and Officers of the Court, and more specifically, Act 769 of 1982. (See Appendix for full text of Act 769.)

The trial judge disposed of this issue in excellent reasons for judgment which we adopt as our own.

“This is a suit for declaratory judgment filed by several judges of courts of record against the Louisiana State Employees’ Retirement System and the Trustees charged with the administration thereof. It involves the Retirement Plan for Judges and Officers of the Court (R.S. 13:11 et seq.) but more specifically, Act 769 of 1982.

“The parties stipulated that this matter was to be decided on the basis of the pleadings, stipulations and briefs filed by them. The sole issue to be decided in this litigation is one of law — the proper interpretation and effect of the provisions of Act 769 of 1982. The basic purpose of Act 769, as set forth in its title, was to enact uniform requirements with reference to credit for military service and to the purchase thereof. The pertinent provisions of the Act are presently found in R.S. 42:697.11, under the Part entitled ‘Provisions Affecting More Than One Retirement System,’ and are applicable to the fourteen public retirement systems enumerated therein. Plaintiffs in this proceeding are members of the Louisiana State Employees’ Retirement System— one of the fourteen systems so enumerated. They each meet the requirements of Act 769 for purchasing military service credit under Act 769 and have asked for a declaratory judgment concerning the proper interpretation of Act 769 with regard to these three specific questions:

1. What is the employee contribution rate that a person enumerated in R.S. 13:13 must pay in order to obtain credit for military service?
2. At retirement, what benefit formula applies to the credit of a person enumerated in R.S. 13:13 for military service?
3. What constitutes ‘base pay’ upon which the computation for contributions is made for persons seeking credit under Act 769?

“In 1976, the Louisiana Legislature first adopted a contributory retirement plan for judges and officers of the court. It did so by enacting Act 518 of 1976, which is presently found in R.S. 13:11, et seq. Section 11 authorizes judges and officers of the court to become members of the Louisiana State Employees’ Retirement System. However, the employee contribution to the System is fixed at the regular employee contribution required by law to be paid into the System (7% — R.S. 42:651), plus an additional amount of 4% (R.S. 13:18), bringing the total amount of employee contribution for such members to 11%. By the same token, judges and court officers receive an additional retirement benefit of 1% (R.S. 13:15), which, together with the regular benefit of <£k% (R.S. 42:575), results in a total benefit for such members of Zlh%. The Retirement Plan for Judges and Officers of the Court therefore is governed by the specific provisions contained in R.S. 13:11 et seq., and the general provisions of Chapter 10 of Title 42 of the Louisiana Revised Statutes, relative to the Louisiana State Employees’ Retirement System. A clear interpretation of how these widely separated statutory provisions relate to each other is found in Moise v. La. State Employees’ Retirement System, 366 So.2d 1054 (La.App. 1st Cir.1978), writ denied 368 So.2d at 124.

“In Moise, plaintiff contended he could retire upon satisfying the eligibility requirements of R.S. 42:571 and have the survival benefits specified in R.S. 13:20. Plaintiff did not meet the eligibility requirements for retirement as provided for in R.S. 13:16, but did meet the eligibility requirements of R.S. 42:571(A)(3). Plaintiff cited R.S. 13:14 which provided that by exercising his option to become a member of the system, he availed himself of all the benefits, emoluments, and conditions of the system (R.S. 42:541 through R.S. 42:699) and of all benefits, emoluments and conditions included in R.S. 13:11, et seq. The court, deciding in plaintiff’s favor, relied upon both R.S. 13:14 and R.S. 13:24 (providing for the immediate vesting of all benefits of the system ‘and also with the additional benefits provided by this part.’) (Emphasis added.) It stated:

‘In La.R.S. 13:24 and in La.R.S. 13:14 the language clearly states what rights a person covered by La.R.S. 13:11-26 receives. They receive the benefits, emoluments, and conditions of Title 42 and the benefits, emoluments and conditions of the Retirement Plan for Judges and Officers of the Court. The use of the conjunctive “and” indicates that it was the express intention of the legislature in creating the Retirement Plan for Judges and Officers of the Court to allow those persons eligible under La.R.S. 13:13 and who elect to join the Louisiana State Employees’ Retirement System to receive the maximum in benefits.’
‘The best combination of both systems, the Louisiana State Employees’ Retirement System and the Retirement Plan for Judges and Officers of the Court, is available to plaintiff-appellee. We find that by the enactment of the Retirement Plan for Judges and Officers of the Court, the legislature provided for a combination of retirement eligibility requirements and a combination of retirement benefits.’
(366 So.2d at 1058)

“With the above in mind, it is appropriate to look at the specific provisions of Act 769 of 1982 as found in R.S. 42:697.11B [R.S. 42:697.11 B]. Insofar as payment for the purchase of military service is concerned, that Section provides:

‘* * * In or(jer ⅛, obtain such credit the member shall pay into the system an amount equal to the current employer and employee contributions based on the member’s average base pay for the first thirty-six successive months of credited service in the applicable system * * *. The employer may pay the employer contributions * * *.’

“A survey of the statutes governing the fourteen retirement systems listed in the Act discloses that for a general member of the systems, the employee contribution rate ranges from 5% to 11%. For a member of the Louisiana State Employees’ Retirement System only, the rate ranges from 7% to 11%. The system, rate and statutory references are as follows:

Rate Statutory Reference System
7% R.S. 40:1423 State Police Pension and Relief Fund
R.S. 17:982 Louisiana School Employees’ Retirement System -3
Louisiana School Lunch Employees Retirement System
R.S. 17:1265 Plan A co > — 1 ¾⅝
R.S. 17:1275 Plan B cn ^
R.S. 17:692 Teachers’ Retirement System of Louisiana —3 ^
R.S. 47:1915 Assessors' Retirement Fund —3 ^
R.S. 13:933 Clerk of Court Retirement and Relief Fund -0 ^
R.S. 16:1031E District Attorneys’ Retirement System -o ¾⅞
Municipal Employees’ Retirement System of Louisiana
R.S. 33:7236 Plan A to en
R.S. 33:7276 Plan B en
R.S. 33:2380 Municipal Police Employees’ Retirement
R.S. 33:2160 Firefighters’ Retirement System
Parochial Employees’ Retirement System of Louisiana
R.S. 33:6156 Plan A CO CO CR
R.S. 33:6176 Plan B OI
R.S. 18:1832 Registrar of Voters Employees’ Retirement System CO
R.S. 33:1453 Sheriff’s Pension and Relief Fund 00
Louisiana State Employees’ Retirement System
R.S. 42:651 General Member t—
7% per R.S. 42:651 Legislator rH
+4% per R.S. 24:36E
9% 7% per R.S. 42:651 Certain Legislative Employees
+2% per R.S. 24:36E
8.5% 7% of R.S. 42:651 Certain Employees of the Department of Corrections
+ 1.5% of R.S. 42:651(3)
8% 7% of R.S. 42:651 Certain Wildlife Enforcement Agents
+ 1% of R.S. 42:651(3)
11% 7% per R.S. 42:651 Judges and Court Officers
+4% per R.S. 13:18

“In the case of judges and court officers, it is clear that the current employee contribution is 11% — the 7% required under R.S. 42:651 and the additional 4% required under R.S. 13:18. The language of the statute is clear and unambiguous. Had the Legislature intended that the employee contribution for judges and court officers be restricted to only the 7% provided for nonjudicial members of the System, it could easily have so provided. It did not do so. In fact, it simultaneously repealed R.S. 42:565, relating to credit for military service, which called for the System’s ‘current employee contributions’; and which, when read in pari materia with R.S. 42:575, equated to a benefit of 2V2% per year. As above noted, Act 769 of 1982 falls outside the statutes relating only to the Louisiana State Employees’ Retirement System and encompasses a total of fourteen retirement systems. The repeal of R.S. 42:565, as well as the repeal of similar provisions in laws pertaining to other systems, signals a clear legislative intent to apply both the contribution provisions of each individual retirement system and the contribution provisions of special laws pertaining to certain members of a system. This includes R.S. 13:18, applying to judges and court officers. In other words, the contribution is based upon what the individual member contributes, not what is required generally in a particular system.

“Defendants contend the additional employee contribution rate set forth in R.S. 13:18 applies by its own terms only to ‘service as a judge or as a court officer.’ What R.S. 13:18 actually does is set forth a formula for the additional contribution. It is ‘four percent of all salary or compensation received by him for service as a judge or as a court officer, regardless of the source of such salary or compensation.’ This relates solely to the amount of the contribution required of a judge, the basis upon which it is computed. It has nothing to do with any benefit or type of creditable service. In simple terms, it sets forth the current employee contributions called for by Act 769 of 1982, i.e., ‘the regular employee contribution’ and, in addition, ‘four percent of all salary or compensation received ... for service as a judge ...’

“It is therefore the opinion of this Court that with respect to purchase of military credit by judges and officers of the court the amount (rate) of the current employee contribution is 11%.

“Insofar as the proper calculation of the retirement benefit for judges and court officers with reference to the military time purchased is concerned, the question is whether such years are to be treated as years of service as a judge or court officer within the meaning of R.S. 13:15. Unfortunately, the Act does not specifically address this point. At the outset, it must be remembered that military service time is not service as a State employee, but is rather service for which the Legislature has determined that credit shall be obtainable by purchase. The purchase amount is based upon the pay for the first thirty-six months of credited service in the applicable system, which might or might not have been for judicial service. But for the difference in the contribution rate required of judges and court officers and the additional benefit provided for such officers, the question would not arise. Insofar as the other members of the Louisiana State Employees’ Retirement System are concerned, it is clear that the military service years are creditable years and that such nonjudicial members therefore get full benefit for those years under the provisions of R.S. 42:575, which bases the benefit upon years of creditable service, without regard to where or when earned.

“In those systems where the benefit rate is the same for all years of creditable service no problem arises. For example, the benefit for a general member of the Louisiana State Employees’ Retirement System is 2½% per year of creditable service (R.S. 42:575), as it is for a member of the Louisiana School Employees’ Retirement System (R.S. 17:913). For a member of the Firefighters’ Retirement System, the benefit is 3% times the years of creditable service (R.S. 33:2155), as it is for a member of the Assessors’ Retirement Fund (R.S. 47:1918F), members of the Clerks of Court Retirement and Relief Fund (R.S. 13:936), and the District Attorneys’ Retirement System (R.S. 16:1042).

“However, in the case of members of the Municipal Employees’ Retirement System of Louisiana, the rate of employee contribution to members of Plan A in that system is 9.25% (R.S. 33:7236) and the benefit is three times the years of creditable service (R.S. 33:7232), while the rate of employee contribution to members of Plan B is 5% (R.S. 33:7276) and the benefit is 2% times the years of credited service (R.S. 33:7272). The same percentages apply to members of the Parochial Employees’ Retirement System of Louisiana under the provisions of R.S. 33:6156, 6152, 6176 and 6172, respectively. With respect to certain members of the Louisiana State Employees’ Retirement System, the same problem exists. A legislative member of the System is entitled to an additional 1% benefit on retirement (R.S. 24:36A [R.S. 24:36 A]), as are certain legislative employees who are members of the System under the same section. A judge or court officer is entitled to an additional 1% benefit on retirement (R.S. 13:15). Wildlife Enforcement Agents are entitled to varying benefits based on the numbers of years of service (R.S. 56:682).

“Act 769 of 1982 is silent as to how one determines the benefit in all of these cases. This Court believes the only equitable, and logical solution is to determine the benefit rate by considering the contribution made, as we noted above. Military service time is not service as a State employee. It is rather service for which the Legislature has determined that credit may be obtained, by purchase. The basis for obtaining such credit has differed from time to time. With reference to military service performed by a System member between May 1, 1940, and September 1, 1950, the Legislature determined that the credit would be afforded without any cost whatsoever (R.S. 42:575A [R.S. 42:575 A], as amended through 1964). For a different period of time it could be purchased on the basis of compensation being earned immediately prior to entry into the service (R.S. 42:575B [R.S. 42:575 B], as amended through 1964). In the current case, the Legislature has required purchase based on the base pay of the purchaser during the first 36 months of credited service in the applicable system (R.S. 42:697.11B [R.S. 42:697.11 B]). If the military service credit is not to be used for determining the benefit, its value to an employee would be severely limited. It cannot be used for acquiring eligibility for disability or survivors’ benefits, it cannot be used to meet the minimum eligibility requirement for any regular retirement of less that 20 years, and it cannot be used as the highest 36 months in computing the average compensation for retirement benefits (R.S. 42:697.-11F, G [R.S. 42:697.11 F, G]). To require a person to purchase military time at a high rate and allow him benefits credit at a low rate would run counter to the entire concept of an aetuarially sound system. The sole purpose for requiring the additional 4% contribution by judges and court officers is to pay for the extra 1% benefit afforded such members. This is in keeping with the actuarial principles upon which the system is based.

“Defendants argue plaintiffs are entitled to different benefit rates for different types of credit. Given the above background and keeping in mind the extra 4% contribution required of the persons enumerated in R.S. 13:13, this court believes the actuarial nature of the system requires different benefit rates for different types of contribution, not different types of credit.

“Defendants argue also that the additional benefit of 1% established by R.S. 13:15 applies by its own terms only to ‘the number of years of service as a judge or court officer ... ’ This begs the question. Every person in every retirement system must possess a status qualifying him or her to be a member of that system. But for the plaintiffs in this case being judges first, they would not be seeking the additional benefit for military service. Once the military service is credited, it then becomes service as a judge. It can be nothing else.

“It is the opinion of the Court that the 3V2% benefit formula applies to the military service credit purchased by judges and court officers.

“The final question for determination involves the meaning of the words ‘average base pay’ as used in Act 769. The Act does not define ‘base pay.’ However, insofar as members of the Louisiana State Employees’ Retirement System are concerned, ‘base pay’ is defined in R.S. 42:543(6) as follows:

‘(6) “Base pay” means prescribed compensation for a specific position on a full-time basis, but does not include overtime, per diem, differential pay, payment in kind, premium pay, or any other allowance for expense authorized and incurred as an incident to employment, except for supplemental pay for certain members as provided by Article X, Section 10(A)(1) of the Louisiana Constitution of 1974.’

“There is no provision in R.S. 13:11, et seq., in conflict with this definition, and that definition would therefore be applicable to the Retirement Plan for Judges and Court Officers under the specific provision of R.S. 13:26. A plausible argument can be made since the Legislature provided that supplemental pay received by certain law enforcement officers was included in base pay, it therefore meant to exclude all other supplemental pay. However, given the expressed intention of the Legislature to make the retirement systems fiscally sound, the Court believes that the more logical interpretation is that the Legislature intended to include all normal compensation earned by a member. For that reason, the Court finds that ‘base pay’ includes all compensation received from any governmental entity by a judge or court officer without regard to whether the payment of such compensation was mandatory or voluntary.”

Finding the above decision and supporting reasons to be sound, we affirm the trial court’s judgment, at appellant’s costs in the amount of $227.09.

AFFIRMED.

APPENDIX

Act 769 of 1982, Regular Session, reads as follows:

AN ACT

To repeal R.S. 13:936(E) and R.S. 13:943, R.S. 16:1034, R.S. 17:600.2, R.S. 17:904, R.S. 17:1249(A)(3), R.S. 18:1704, R.S. 33:1456(F), R.S. 33:2154(B), R.S. 33:2374(D), R.S. 33:6124(A)(3), and R.S. 33:7194(A)(3), R.S. 40:1427(B), R.S. 42:565, R.S. 47:1918(E)(2), (3), to enact R.S. 42:697.11, and to amend and reenact R.S. 42:697.10(A), to make uniform the military service credit provisions of all public state, parochial, and municipal retirement systems established by state law, to make uniform the purchase of military service for state and statewide retirement systems, and otherwise to provide with respect thereto.

Notice of intention to introduce this Act has been published as required by Article X, Section 29(C) of the Constitution of Louisiana.

Be it enacted by the Legislature of Louisiana:

Section 1. R.S. 42:697.11 is hereby enacted to read as follows:

§ 697.11. Credit for military service; state and statewide retirement systems; purchase; limitations

A. Notwithstanding any other provisions of law to the contrary, the provisions of this Section shall be applicable to all members of the following public retirement systems who rendered military service pri- or to January 1, 1982: Louisiana State Employees’ Retirement System, State Police Pension and Relief Fund, Louisiana School Employees’ Retirement System, Louisiana School Lunch Employees’ Retirement System, Teachers’ Retirement System of Louisiana, Assessors’ Retirement Fund, Clerks’ of Court Retirement and Relief Fund, District Attorneys’ Retirement System, Municipal Employees’ Retirement System of Louisiana, Municipal Police Employees’ Retirement System, Firefighters’ Retirment * System, Parochial Employees’ Retirement System of Louisiana, Registrar of Voters Employees’ Retirement System, and Sheriffs’ Pension and Relief Fund.

B. Any member who has at least eighteen months of creditable service in a retirement system enumerated in Subsection A of this Section shall be entitled to purchase up to four years of military service credit, provided all service was rendered prior to January 1, 1982, and provided application is filed with the retirement system, together with proof of the inclusive dates of military service performed. In order to obtain such credit the member shall pay into the system an amount equal to the current employer and employee contributions based on the member’s average base pay for the first thirty-six successive months of credited service in the applicable system plus five percent compound interest per year from the date the member joined the system until paid. The amount to be paid shall be paid in one lump sum or in such installments as shall be agreed upon by the member and the board of trustees, but all such payments shall be paid in full within three years after the date of any application for such service; provided however, all such military service shall be purchased on or before January 1, 1986. The employer may pay the employer contributions and interest thereon. Members of systems who do not have the employer contributions provided for as a percentage of payroll or salary shall pay twice the employee contributions.

C. No member shall receive more than four years of total military service credit under any provision of law. No member shall be entitled to purchase military service credit unless he has been honorably released from service.

D. No credit for military service shall be given for service in any state national guard or in the reserve forces of the United States, or for any service for which a member is drawing a benefit based on military service.

E. There shall be no duplication of credit for military service, and no member shall be entitled to purchase or receive credit for military service pursuant to this Section if he has previously received credit for such in any other public retirement system or pension fund, including any retirement plan for members of the armed forces of the United States, from which plan the member is drawing a regular retirement benefit, based on age and service.

F. Military service shall not be used for purposes of acquiring eligibility for disability or survivor’s benefits, and shall only be used for purposes of acquiring eligibility for normal retirement benefits; however, in those systems which authorize retirement with twenty or more years of service at any age, or twenty or more years service at age fifty, military service credit shall not be computed until after the completion of twenty full years of service. In addition, such military service credit cannot be used to meet the minimum eligibility requirement of any regular retirement of less than twenty years.

G. Military service credit shall not be used as the highest thirty-six successive months or the highest thirty-six successive joined months of employment where interruption of service occurred, in computing the average compensation for retirement benefit computation.

Section 2. R.S. 42:697.10(A) is hereby amended and reenacted to read as follows:

§ 697.10. Military service credit

A. The provisions of this Section are applicable to persons who become members of the public retirement systems listed in Subsection B of this Section after January, 1982.

* * * * * *

Section 3. All laws or parts of laws in conflict herewith are hereby repealed and R.S. 13:936(E), R.S. 13:943, R.S. 16:1034, R.S. 17:600.2, R.S. 17:904, R.S. 17:1249(A)(3), R.S. 18:1704, R.S. 33:1456(F), R.S. 33:2154(B), R.S. 33:2374(D), R.S. 33:6124(A)(3), R.S. 33:7194(A)(3), R.S. 40:1427(B), R.S. 42:565, and R.S. 47:1918(E)(2) and (3) are hereby specifically repealed.

Section 4. If any provision or item of this Act or the application thereof is held invalid, scuh invalidity shall not affect other provisions, items, or applications of this Act which can be given effect without the invalid provisions, items, or applications, and to this end the provisions of this Act are hereby declared severable.

Approved .by the Governor: August 2, 1982.

      . The Honorables: Richard P. Boyd, Jr., Wil-more J. Broussard, Jr., Burrell J. Carter, Jules L. Davidson, Jr., Leon Ford, III, Walter I. Lanier, Jr., Cleveland J. Marcel, Sr., Paul A. Newell, John S. Pickett, Jr., Eddie L. Sapir, Louis P. Trent, O.L. Waltman, Jr., Darrell D. White.

      . Prior to the enactment of R.S. 13:11 et seq., the only retirement system for judges in Louisiana was found in the Louisiana Constitution of 1921, Article 7, Section 8. (For a more comprehensive review of this history, see Trent v. State, 400 So.2d 1178, writ denied 404 So.2d 279).

       As it appears in the enrolled bill.


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    IT CORPORATION v. COMMISSION ON ETHICS FOR PUBLIC EMPLOYEES.
    No. 83 CA 0711.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Writs Granted Oct. 26, 1984.

      Charles S. McCowan, Jr., Kean, Miller, Hawthorne, D’Armond, McCowan & Jar-man, Baton Rouge, for plaintiff-appellant.
    R. Gray Sexton, Com’n on Ethics for Public Employees, Baton Rouge, for defendant-appellee.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

Plaintiff, IT Corporation, appealed from a decision of the Commission on Ethics for Public Employees (the Commission) finding the corporation in violation of Sections 1112 A and 1118 of the Governmental Ethics Code (the Code), and imposing the maximum fine of $5,000 for each of the two particular violations. The Commission’s decision further declared void the July 17, 1979 contract between the Department of Natural Resources (DNR) and IT Corporation, and ordered rescission of the contract and repayment of the sum of $375,598 by IT Corporation to the Treasury of the State of Louisiana.

The record reflects that the Commission, at its February 25,1982 meeting, concluded its private investigation into allegations contained in two sworn complaints that IT Corporation (sometimes referred to as «ITC”) an(j others had violated provisions of the Governmental Ethics Code.

Thereupon, the Commission conducted a public hearing on March 17 and 18, 1983 for the purpose of examining the charges against ITC.

Notice of the charges was given to ITC by correspondence of March 12, 1982. At that time additional notice was given to ITC that the Commission would receive, during the course of the proposed public hearing, evidence relevant to the proposition that one or more of the cited violations may have influenced the making of any or all of certain state contracts involving ITC catalogued therein.

During the course of the March 1982 correspondence, ITC was advised that the Commission, upon finding that the making of any of the aforesaid contracts was influenced by violations of the Code, might cancel or rescind any of those contracts.

The public hearing was scheduled for May 27 and 28, 1982. On the eve of that public hearing an Application for Supervisory Writs of Certiorari, with a Request for a Stay of All Further Proceedings, was filed by ITC with this Court, and thereafter we granted the Application and the Request for a Stay of Proceedings.

At the conclusion of the appellate proceedings, this Court decided that ITC was subject to the jurisdiction of the Commission and remanded the case to the Commission for further proceedings “consistent with [that] opinion, and according to law.” Commission on Ethics for Public Employees v. IT Corporation, 423 So.2d 695 (La.App. 1st Cir.1982).

In September, 1979, ITC submitted to the DNR a feasibility study entitled “Study Report: Model Regional Hazardous Waste Recovery and Disposal Facility” pursuant to its contract with the DNR. In that study, ITC recommended the selection and designation of a tract of land for location of the proposed “Model Regional Hazardous Waste Recovery and Disposal Facility,” described as “Area I”, and being generally a tract theretofore owned by Mr. and Mrs. Shelby Robert (hereinafter referred to as the “Robert tract”).

Prior to the submission of the report to the DNR, ITC made a number of contacts with Mr. and Mrs. Robert, individually and through their attorney, and actively engaged in negotiations with them, through their attorney, for the execution of an option for ITC to acquire the Robert tract.

Prior to September 1979, and during the period of time that it was in the process of preparing and formulating the report, ITC obtained soil borings on the Robert tract, had soil analyses made and made several site inspections. After submission of the report to the DNR, an option agreement for the acquisition by ITC of the Robert tract, with an effective date of September 25, 1979 was entered into, which option agreement was prepared by the Roberts’ attorney on behalf of both parties. ITC was paid by the State for preparation of the feasibility study on October 9,1979, the agreed sum of $375,598.

By agreement entitled “Subcontract” dated June 17, 1979, ITC and Research Associates of Louisiana, Inc. (“Research Associates”) entered into a contract by which Research Associates was to render to ITC certain services, consisting generally of “site location analysis and recommendation” pertaining to ITC’s “feasibility study” contract with the DNR. Pursuant to this contract, ITC agreed to pay Research Associates the sum of $53,836 for its services.

At the time ITC entered into the above-mentioned contract, and until the time Research Associates was paid by ITC, Research Associates was a party to contracts with the DNR. In these contracts Research Associates, primarily through Ned A. Cole, rendered essential and comprehensive services in the field of hazardous waste management, including particularly the establishment and maintenance of a comprehensive and integrated hazardous waste management program by the DNR. ITC knew of the existence of one or more of these contracts at the time it entered into its arrangement with Research Associates.

Prior to the July 1979 award of the contract to ITC to make the study report, the record establishes that the following events occurred:

(a) By correspondence of January 27, 1979, Ned A. Cole wrote to ITC inviting ITC to “discuss [the] opportunity” for it to effectuate an expansion into the state of Louisiana to assist in providing a solution to the waste disposal problem.

(b) By correspondence of March 30,1979, Cole forwarded to ITC a “preliminary proposal” that he had prepared, consisting primarily of an outline for the subsequent submission by ITC to the State, of the “Proposal for a Model Regional Hazardous Waste Recovery and Disposal Facility.”

(c) By cover letter of April 18, 1979, ITC submitted to the State the “Proposal for a Model Regional Hazardous Waste Recovery and Disposal Facility.”

(d) The “Proposal” contained, among other things, declarations that Cole, through Research Associates, would serve as a subcontractor to ITC if it was awarded a contract for the feasibility study and that “Ned Cole serves as Consultant to the Department of Natural Resources for projects including ... the hazardous waste management program and the formulation of rules and regulations governing hazardous waste

(e) Karen Cole, an employee of the Department of Natural Resources, prepared for execution by the DNR and ITC, a contract for the “Development of a Model Regional Hazardous Waste Recovery and Disposal Facility for Louisiana,” dated April 25, 1979, with a “Statement of Work” based substantially upon the information contained in the ITC “proposal”.

(f) During the course of the Regular Session of the 1979 Louisiana Legislature, the Legislature was invited by House Concurrent Resolution No. 79 to suspend applicable provisions of the public bid law and the professional services contract law so as to authorize the Department of Natural Resources to enter into the “sole source” contract of April 25, 1979 with ITC, but the concurrent resolution was not adopted.

(g) Karen Cole, thereafter, prepared a “Request for Proposal for Conduct of a Study to Develop a Model Regional Hazardous Waste Recovery and Disposal Facility for the State of Louisiana” (REP), dated May 29, 1979, with cover letter of same date, and forwarded the RFP to a number of industrial concerns, including ITC; the “Statement of Work” contained in and made an integral part of the RFP was extracted by Ms. Cole substantially from the earlier proposal submitted by ITC to the State, and the subsequent “sole source” contract of April 25, 1979.

(h) By correspondence of May 31, 1979, Cole wrote to ITC observing that a major competitor of ITC, Catalytic Inc., had not requested a copy of the RFP, and he doubted that Catalytic, Inc. was aware of the proposed project.

(i) That same date, in separate correspondence, Cole advised ITC that he had “lined up” “Mayes” and “Smith” (two Research Associates employees or associates) for the next visit to Louisiana by ITC’s representative, John Theiss.

(j) By letter of June 8,1979, Cole advised ITC that he had caused RFP’s to be sent to other industrial concerns in order to “insure that [there was no] criticism .... ” Cole noted that he had answered in the “affirmative” a call concerning RFP in which the question was asked whether or not the 60 day period meant that the project had to be completed in 60 days.

(k) On June 17, 1979, ITC entered into the “agreement” with “Research Associates of Louisiana” (signed by Ned A. Cole on behalf of Research Associates) which had attached to it an exhibit outlining the scope of services and referencing certain parts of the initial “Proposal for a Model Regional Hazardous Waste Recovery and Disposal Facility” submitted by ITC to the State prior to April 25, 1979.

(l) At the time these events were taking place, Research Associates was under contract with the DNR for “special services, development of hazardous waste management system” by which Research Associates was required, generally, to prepare a hazardous waste management plan by developing the permit system. Simultaneously, Research Associates was preparing for submission to the State a proposal in response to an RFP issued July 20, 1979 for another contract to assist in the implementation of the State hazardous waste management program and, among other things, to perform permit evaluation pertinent to the administration of the hazardous waste management program. (This contract was awarded to Research Associates, in September of 1979.)

(m) By document dated June 27, 1979, ITC submitted to the DNR its “Proposal for the Development of a Model Hazardous Waste Facility.”

(n) Sometime between July 9 and 13, 1979, Karen Cole and Jim Porter, an employee of the DNR, prepared evaluations of the several proposals submitted; and, thereafter, recommended to the Secretary of the Department of Natural Resources that an award be made to ITC.

(o) The proposal previously submitted by ITC on June 27, 1979 listed, as a proposed subcontractor, Ned A. Cole, who was represented as then serving as a consultant to the DNR.

(p) Ms. Cole prepared a contract executed on July 17,1979, the Secretary of the Department of Natural Resources, awarding to ITC the contract for the preparation of a “Model Regional Hazardous Waste Recovery and Disposal Facility for Louisiana”, for the sum of $375,598.

(q) ITC submitted to the DNR on September 21, 1979, its invoice for the services performed pursuant to the feasibility study; and, on the basis of a recommendation by Ms. Cole as to the correctness of the amount, Murray Hutchinson, a Department of Natural Resources official, approved payment to ITC.

On the following dates payments were made by Research Associates to Karen Cole: (1) July 2,1979 — $6,400, (2) August 2, 1979 — $1,200, (3) September 17, 1979 — $1,-500, (4) January 19, 1980 — $1,000, (5) April 10, 1980 — $3,000, (6) July 1, 1980 — $500, (7) August 9, 1980 — $500, (8) August 16, 1980 —$500, (9) October 14, 1980 — $750 and (10) November 20, 1980 — $1,750.

As applied to ITC, the primary provisions of the Governmental Ethics Code are Sections 1112, 1113, 1114, and 1118 which then provided (in pertinent parts):

“1112. Acts affecting a personal economic interest
A. Economic Interests of a State Employee. No state employee shall participate in a transaction involving the state in which he has a personal substantial economic interest, as distinguished from a general class or general group of persons, of which he may reasonably be expected to know.
B. Economic Interest of Persons in which a State Employee Has An Interest. No state employees shall participate in a transaction involving the state in the consequence of which, to his actual knowledge, any of the following persons has a direct substantial economic interest, as distinguished from a general class or general group of persons:
(1) His spouse or child; or
(2) Any person in which he has an economic interest of which he may reasonably be expected to know; or
(3) Any person of which he is an officer, director, trustee, partner or employee; or
(4) Any person with whom he is negotiating or has an arrangement concerning prospective employment; or
(5) Any person who is a party to an existing contract with such state employee or an obligee of such state employee as to a thing of economic value and who, by reason thereof, is in a position to affect directly such employee’s economic interests.
C. Disqualification. Every state employee shall disqualify himself from participating in a transaction involving the state when a violation of this Part otherwise would result. The procedures for such disqualification shall be established by regulations issued pursuant to R.S. 42:1119.
D. Economic Interest. The term “economic interest” shall not include:
(1) The interest of a state employee in his position, rank, salary or other matters arising solely from his state employment or;
(2) The interest of a state employee or of a person referred to in Sub-section B of this Section as a member of the general public or of any significant economic or other segment of the general public.
F. Permitted Exceptions. Permitted exceptions from the prohibitions contained in this Section are as follows:
(1) Nothing in this Section shall prevent a state employee from sharing in any compensation received from the state by a person of which such state employee owns or controls less than ten per centum, provided such state employee did not assist in the procurement of such compensation.
(2)Nothing in this Section shall prevent a state employee from sharing in any compensation received from the state by a person of which such state employee owns or controls any portion thereof, provided such compensation was received by such person as a result of having made the -lowest sealed competitive bid on a state contract or subcontract and having had such bid accepted by the state or the general contractor and provided that such state employee did not assist in the procurement of state’s or the general contractor’s acceptance of such low bid. Added Acts 1964, No. 110, Section 1.
1113. Compensation for state employees from non-state sources
A. Payments for services to the State. No state employee shall receive any thing of economic value, other than his compensation from the state, and other normal employee benefits provided by the state, for or in consideration of personal services rendered or to be rendered to or for the state. Anything of economic value received by a state employee prior to or subsequent to his state employment shall be presumed, in the absence of a showing to the contrary by a clear preponderance of evidence, not to be for, or in consideration of, personal services rendered or to be rendered to or for the state.
B. Compensation for Service to Others. No state employee shall receive any thing of economic value for or in consideration of personal services rendered, or to be rendered, to or for any person during the term of his state employment unless such services meet each of the following qualifications:
(1) The services are bona fide and are actually performed by such employee; and
(2) The services are not within the course of his official duties; and
(3) The services are not prohibited by R.S. 42:1112 or by applicable laws or regulations governing non-state employment for such employee; and
(4)The services are neither performed for nor compensated by any person from whom such employee would be prohibited by R.S. 42:1114 from receiving a gift; unless the services and compensation are fully disclosed in writing to the head of the employee’s agency.
C.Payments for Future Services to Others. No state employee shall receive, directly or indirectly, any thing of economic value during the term of his state employment in consideration of personal services to be rendered to or for any person subsequent to the term of such employment. Nothing contained in this Sub-section shall be deemed to prevent a state employee from entering into a contract for prospective employment during the term of his state employment unless otherwise prohibited by R.S. 42:1116.
* # * ⅝ Sfc *
1114. Gifts
General rules for all employees. No state employee shall receive, accept, take, seek or solicit, directly or indirectly, any thing of economic value as a gift, gratuity or favor from any person or from any officer, director, agent or employee of such person, if such person:
(1) Has or is seeking to obtain contractual or other businesses or financial relationships with such employee’s agency; or
(2) Conducts operations or activities which are regulated by such employee’s agency; or
(3) Has interests which may be substantially affected by such employee’s performance or non-performance of official duty.
And if such state employee knew or reasonably should have known of the existence of any of the conditions covered above. Added Acts 1964, No. 110, Section 1.
$ ⅝ ⅛ ‡ *
1118. Illegal payments
A. Payments as Compensation. No state employee or other person shall give, pay, loan, transfer, deliver or offer to give, pay, loan, transfer or deliver, directly or indirectly, to any other state employee or person any thing of economic value which he would be prohibited from receiving by any other provisions of this Part. Added Acts 1964, No. 110, Section 1.”

With the foregoing facts before it, the Commission found that ITC had violated Section 1112 A, as charged, ruling:.

In Charge I, it is clear that IT Corporation as a “state employee” actively “participated” in the study (a “transaction”) at a time when IT Corporation had a “personal substantial economic interest” in its recommendation to the State of the “Robert tract”. A “personal substantial economic interest” does not presuppose the antecedent existence of a proprietary interest in the title to immovable property, as was advocated to the Commission by IT Corporation. Rather, this interest of IT Corporation in the feasibility report was achieved essentially through its active — and successful — negotiations as early as the middle of August of 1979, through Vincent Sotile, [the Roberts’ attorney] with the Roberts with a view toward obtaining an option to acquire title to the subject tract of land. It is of significance that Mr. Sotile in his August 31, 1979 letter to IT Corporation, during the course of his “report” relative to “[his] negotiations to date,” noted and informed IT Corporation that he had met with Mr. Robert “on several occasions” and that Mr. Robert “has agreed to negotiate.” The controlling elements of that negotiation and the progress made in connection therewith is further developed in Mr. Sotile’s letter of that date. Similarly, in correspondence of September 1, 1979 by Ned A. Cole to IT Corporation, it is noted that: “negotiations relative to land purchased — John is keeping up with this_” Correspondingly, the soil bor-ings of Research Associates, coupled with the soil testing analyses by Soil Testing Engineers, Inc., were limited to and confined to the Robert tract.
The testimony of Mr. Vincent Sotile, together with that of Mr. and Mrs. Shelby Robert, confirm that IT Corporation was actively negotiating with the Roberts for acquisition of the Robert tract prior to submission of its feasibility report on or about September 29, 1979 and that most of the essential ingredients of the September 25, 1979 option were reached pri- or to that date.
IT Corporation’s explanation for its active pursuit of an option agreement with the Roberts is, essentially, that the contracts made by IT Corporation to the Roberts was nothing more than a ruse; that IT Corporation in fact had no interest in the acquisition of the Robert tract until after it read its own feasibility study (sometime between September 29 and September 25, 1979); and that its communications with the Roberts were designed to do nothing more than determine the “price and availability” of the Robert tract in order that IT Corporation could accurately represent to the State both its “availability” and estimates of land acquisition costs. The Commission finds completely untenable this thesis, in general, and the testimony of Murray Hutchinson, in particular, as to events that led to the execution of an option agreement with an effective date of September 25, 1979. The testimony of Mr. Hutchinson that he did not contemplate recommending to IT Corporation the execution of the option agreement or even the acquisition of the proposed tract of land until after September 21, 1979— when he read the feasibility study for the first time — and yet somehow prior to September 25, 1979 — is unacceptable to the point of being ludicrous.

When this matter was previously before this Court, we held:

IT Corporation timely submitted its feasibility study by September 20, 1979. On September 25, 1979, IT Corporation’s real estate option around which this dispute centers became effective. Because, however, IT Corporation was not paid by the State for its services until October 9, 1979, it was still a state employee on the date the real estate option became effective, and did, therefore, acquire a “personal substantial economic interest” in violation of Section 1112.

We adhere to that view. During the course of the public hearing, Mr. and Mrs. Robert and Mr. Sotile testified that ITC, through its representatives, actively-pursued acquisition of the “Robert tract” contemporaneously with its performance of the study, and that there was no indication that ITC’s interest in the Robert tract was merely in the performance of the study. We conclude that the record establishes that ITC was actively negotiating with the Roberts, directly and through their attorney, with a view toward its own acquisition of the Robert tract prior to the “Study Report” of September 1979. ITC’s targeting of the Robert tract in the “Study Report” constitutes “participation” (by recommendation) in a “transaction” (the selection of a suitable construction site for a model regional hazardous waste facility) in which ITC had a substantial economic interest (as shown by the “negotiations” to acquire the Robert tract). We find that these negotiations for an option to acquire the Robert tract constitute an “economic interest” in the subject tract of land.

We agree with the Commission that ITC was in violation of Section 1112A of the Code in that ITC, as a “state employee,” participated in a “transaction involving the state” in which it had “a personal substantial economic interest.”

It has also been established that ITC violated Section 1118 of the Code. The purpose of Section 1118 is to prohibit giving something of “economic value” to a public servant which the public servant is proscribed from receiving by other sections of the Code. In the instant case, Research Associates and Ned Cole were prohibited by Section 1113 of the Code from rendering services for compensation to any person from whom such employee would be prohibited from receiving a gift. The Code prohibits public servants from receiving any “thing of economic value as a gift” from any person who either (1) has a contract or other business or financial relationship with the public servant’s agency, or (2) has “interests” which may be substantially affected by the public servant’s performance or nonperformance of official duties.

At the time ITC and Research Associates entered into their arrangement of June 17, 1979, and continuing thereafter until final payment was made by ITC to Research Associates and Ned Cole for services rendered, ITC had or was seeking to obtain contractual relationships with DNR (the “agency” of both Research Associates and Ned Cole), and had “interests” which would have been and were substantially affected by performance or nonperformance, of official duties of both Cole and Research Associates as employees of the DNR.

The Commission found that this conduct was not “a mere technical violation” of the Governmental Ethics Code. The purpose of Section 1118 of the Code is to prohibit persons seeking to obtain or having governmental contracts or having “interests” substantially affected by the performance of certain governmental employees, from attempting, through payments of something of economic value, to curry favor, gain preferential treatment, or be excused from substandard performance by reason of prohibited payment. In the instant case, the Commission concluded that “from the inception of, on, and through the occurrence of every material event, IT Corporation made promises of payment or was contractually bound to make payments— and indeed made payments—to Research Associates and to Ned Cole at times when Ned Cole, through Research Associates, was not only contractually bound to the Department of Natural Resources, but was fundamentally and comprehensively involved, virtually to the exclusion of the other Department of Natural Resources staff, in the development and management of the Department’s fledgling ‘Hazardous Waste Disposal Management Program.’ ”

We agree with the conclusion of the Commission that ITC violated Section 1118 of the Code. The record establishes that ITC did make payments to Research Associates in the amount of $53,836.00 at a time when ITC was under contract to the DNR to assist in the development of Louisiana’s hazardous waste disposal program. Thus, the receipt by Research Associates of these payments from a governmental contractor was prohibited by Section 1113 B(4) of the Code. Inasmuch as the receiving of payments by Research Associates from ITC constituted a violation of Section 1113 B(4), the making of the payments by ITC was a violation of Section 1118 of the Code.

Upon concluding that ITC had violated Sections 1112 A and 1118 of the Code, the Commission, in the exercise of its authority to enforce provisions of the Code by the levying of fines, imposed the maximum fine on ITC for each violation. In addition, the Commission ordered ITC to repay to the Treasury of the State of Louisiana the contract sum of $375,598.00. As stated above, we agree with the imposition of the fines, but we believe the Commission was in error in ordering the return of the contract price. The Code does not expressly grant to the Commission the authority to order the return of the contract price. The Code merely grants to the Commission the authority to seek recovery of damages by a separate civil action in district court.- See Section 1121 G of the Code. That is not to say that remedial action may not be initiated by the State or the proper governmental agency.

In its answer to the appeal, the Commission seeks a modification of that portion of our initial decision in this matter which prohibited the Commission from attempting to set aside the permit issued to ITC. In that decision, we fully discussed and decided this issue. Commission on Ethics for Public Employees v. IT Corporation, supra at 703. We adhere to the conclusion that “the permits involved in this case are ‘lieense[s]’ within the meaning of the Code of Governmental Ethics, and, as such, are immune from either cancellation or rescission by the Commission on Ethics for Public Employees.”

For the foregoing reasons, the order of the Commission is affirmed in part, and vacated and set aside in part. The imposition of the fines for the two violations is allowed to stand and is affirmed; the order requiring the ITC to repay the sum of $375,598.00, the contract sum, is vacated and set aside. Costs to be paid by appellant, ITC.

AFFIRMED IN PART; VACATED AND SET ASIDE IN PART.


author: BOUTALL, Judge.

text:
    STATE of Louisiana v. George VIETO.
    No. 84-K-129.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 1984.
    As Corrected Aug. 13, 1984.
    Writ Denied June 25, 1984.

      Mark McTernan, McTernan, Parr & Ru-mage, New Orleans, for relator George Vieto.
    William C. Credo, III, Asst. Dist. Atty., Gretna, for respondent State of La.
    Before BOUTALL, KLIEBERT and GAUDIN, JJ.
   ON APPLICATION FOR SUPERVISORY WRITS

BOUTALL, Judge.

George Vieto has applied to this court for supervisory writs directed to the First Parish Court for the Parish of Jefferson, State of Louisiana complaining of his denial of a jury trial under a bill of information in which he was charged with violation of LRS 14:98, driving a motor vehicle while under the influence of an intoxicating liquor, and LRS 14:99, reckless operation of a motor vehicle. The nature of the writs sought is not specified, but presumably he seeks a writ of certiorari to determine the correctness of the judge’s ruling and the writ of mandamus ordering a jury trial.

The procedural posture under which this matter comes before us is that Vieto was charged in a single bill of information with two counts, one violation of LRS 14:98 (DWI), and the other on the 14:99 (ROMV). After entry of a plea of not guilty and various pre-trial motions being disposed of, the matter was set for trial on February 23, 1984, and on the day of trial, Vieto filed a motion for jury trial which, after argument, was denied by the presiding judge. Vieto then notified the court of his intention to apply to this court for supervisory writs, whereupon the trial judge stayed further proceedings in the case until this court should act upon the application. Vie-to has now applied to this court raising two issues: (1) Is the defendant entitled by law to be tried by a jury of his peers?; and (2) Are Article 1, Section 17 of the Louisiana Constitution of 1974 and the Code of Criminal Procedure Article 493.1 unconstitutional insofar as they denied defendant the right to a jury trial? These issues were presented below and are presented here purely on a legal question.

We have considered this matter on the basis on which it has been presented, and we find no error in the ruling of the trial court. In reaching this conclusion, we have considered the legal history expounded in our judicial system and in the statutory and constitutional laws of this state. Because of the importance of this issue and the numerous cases pending in the courts under our jurisdiction, we set forth the basis of our reasons.

The Louisiana system of criminal offenses, prosecution and punishment has been altered in past years to bring the system into consistency with generally accepted federal and state guidelines relating to the applicability of jury trials. The foundation principle is that expressed in the Sixth Amendment to the Constitution of the United States which provides in pertinent part:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, * * * * ”

Is the interpretation of this amendment and its application to the right of jury trial consistent with the balance of the rights of an individual accused of a crime and the necessity of governmental imposition of a fair and equitable system of justice in an orderly and efficient manner? In this regard we note the case of Smith v. State of Alabama, 124 U.S. 465, 8 S.Ct. 564, 569, 31 L.Ed.2d 508, 512 (1888) in which the Supreme Court observed:

“There is, however,, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”

Accordingly, in ascertaining the meaning of the phrase, “In all criminal prosecutions, [emphasis added) the accused shall enjoy the right to a ... trial, by ... jury....” taken from the Bill of Rights, reference must be made to the common law from which it was taken.

As noted in United States v. Wong Kim Ark., 169 U.S. 649, 654, 18 S.Ct. 456, 459, 42 L.Ed. 890, 892 (1898):

“In this, as in other respects, it [a constitutional provision] must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution. [Citations omitted]”

In Schick v. United States, 195 U.S. 65, 24 S.Ct. 826, 827, 49 L.Ed. 99 (1904), the Supreme Court utilized the definition from Blackstone’s Commentaries to define “crimes” noting that “Blackstones Commentaries are accepted as the most satisfactory exposition of the common law of England.”

The following definition is stated in Schick, supra, 24 S.Ct. at page 827:

“A crime, or misdemeanor, is an act committed, or omitted, in violation of a public law either forbidding or commanding it. This general definition comprehends both crimes and misdemeanors; which, properly speaking, are mere synonymous terms; though in common usage the word ‘crimes’ is made to denote such offenses as are of a deeper and more atrocious dye; while smaller faults and omissions of less consequence are comprised under the gentler name of the ‘misdemeanors’ only.”

The opinion continues:

“In the light of this definition we can appreciate the action of the convention which framed the Constitution. In the draft of that instrument, as reported by the committee of five, the language was “the trial of all criminal offenses ... shall be by jury, ‘but by unanimous vote it was amended so as to read ‘the trial of all crimes.’ The significance of this change cannot be misunderstood. If the language had remained ‘criminal offenses,’ it might have been contended that it meant all offenses of a criminal nature, petty as well as serious; but when the change was made from ‘criminal offenses’ to ‘crimes,’ and made in the light of the popular understanding of the meaning of the word ‘crimes,’ as stated by Blackstone, it is obvious that the intent was to exclude from the constitutional requirement of a jury the trial of petty criminal offenses.” Schick, supra, 24 S.Ct. at page 827.

By so holding, the court in Schick, supra, confirmed the ruling in Callan v. Wilson, 127 U.S. 540, 555, 8 S.Ct. 1301, 1306, 32 L.Ed. 223 (1888) which conceded “that there is a class of petty minor offenses not usually embraced in public criminal statutes, and not of the class or grade triable at common law by a jury....”

In District of Columbia v. Clawans, 300 U.S. 617, 624, 57 S.Ct. 660, 662, 81 L.Ed. 843 (1937), the court recognized as “well settled” the principle “that the right of trial by jury, ... does not extend to every criminal proceeding.” To distinguish which offenses were to be deemed “petty”, the court considered the severity of the penalty as an element to be assessed in determining whether a statutory offense entitled an accused to a jury trial. The court concluded, after examining the standards which prevailed at the time of the adoption of the Constitution, that a possible penalty of ninety days was insufficient to invoke the right to a jury trial. We note the court’s approach to and solution of the problem:

“We are aware that those standards of action and of policy which find expression in the common and statute law may vary from generation to generation. Such change has led to the abandonment of the lash and the stocks, and we may assume, for present purposes, the commonly accepted views of the severity of punishment by imprisonment may become so modified that a penalty once thought to be mild may come to be regarded as so harsh as to call for the jury trial, which the Constitution prescribes, in some cases which were triable without a jury when the Constitution was adopted. [Citations omitted]. But we may doubt whether summary trial with punishment of more than six months’ imprisonment, prescribed by some pre-Revolutionary statutes, [Footnote omitted] is admissible, without concluding that a penalty of ninety days is too much. Doubts must be resolved, not subjectively by recourse of the judge to his own sympathy and emotions, but by objective standards such as may be observed in the laws and practices of the community taken as a gauge of its social and ethical judgments.” District of Columbia v. Clawans, supra, at 300 U.S. 627-628, 57 S.Ct. 663.

Citing 18 U.S.C. Section 1 (1964 ed); the Supreme Court in Cheff v. Schnackenberg, 384 U.S. 373, 380, 86 S.Ct. 1523, 1526, 16 L.Ed.2d 629 (1966) held “in the exercise of the Court’s supervisory power ... we rule ... that sentences exceeding six months ... may not be imposed by federal courts absent a jury trial or waiver thereof.” Distinguishing the Cheff, supra, case as uniquely applying to contempt proceedings, the Supreme Court in Duncan v. State of Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) declined to adopt the federal standard as controlling in a state case but decided “that a crime punishable by two years in prison is, based on past and contemporary standards in this country, a serious crime and not a petty offense. [Footnote omitted]” Ibid at 391 U.S. 162, 88 S.Ct. 1454. However, the decision in Duncan, supra, recognized that the Sixth Amendment right to a jury trial in a serious ease extended to the states and squarely addressed the issue of whether it was the sentence authorized for a particular offense or the penalty actually imposed which determined the seriousness of the crime charged. Citing District of Columbia v. Clawans, supra, the court noted at 391 U.S. 160, 88 S.Ct. 1453 “[t]he penalty authorized by the law of the locality may be taken ‘as a gauge of its social and ethical judgments.’ (Citations omitted]”

But the court observed:

“[T]he boundaries of the petty offense category have always been ill-defined, if not ambulatory. In the absence of an explicit constitutional provision, the definitional task necessarily falls on the courts, which must either pass upon the validity of legislative attempts to identify those petty offenses which are exempt from jury trial or, where the legislature has not addressed itself to the problem, themselves face the question in the first instance. In either case it is necessary to draw a line in the spectrum of crime, separating petty from serious infractions. This process, although essential, cannot be wholly satisfactory, for it requires attaching different consequences to events which, when they lie near the line, actually differ very little. Duncan, supra at 391 U.S. 160-161, 88 S.Ct. 1453.

In Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), the line was drawn. After surveying the laws of the federal system and of the states, the court noted that the City of New York was alone in denying to an accused a jury trial where the authorized sentence exceeded six months’ imprisonment. The court states some of its consideration of the problem:

“This near-uniform judgment of the Nation furnishes us with the only objective criterion by which a line could ever be drawn — on the basis of the possible penalty alone — between offenses that are and that are not regarded as ‘serious’ for purposes of trial by jury, [Footnote omitted]
“Of necessity, the task of drawing a line ‘requires attaching different consequences to events which, when they lie near the line, actually differ very little.’ Duncan v. Louisiana, supra, [391 U.S.] at 161, 88 S.Ct., at 1453. One who is threatened with the possibility of imprisonment for six months may find little difference between the potential consequences that face him, and the consequences that faced appellant here. Indeed, the prospect of imprisonment for however short a time will seldom be viewed by the accused as a trivial or ‘petty’ matter and may well result in quite serious repercussions affecting his career and his reputation. Where the accused cannot possibly face more than six months’ imprisonment, we have held that these disadvantages, onerous though they may be, may be outweighed by the benefits that result from speedy and inexpensive non-jury adjudications. We cannot, however, conclude that these administrative conveniences, in light of the practices that now exist in every one of the 50 States as well as in the federal courts, can similarly justify denying an accused the important right to trial by jury where the possible penalty exceeds six months’ imprisonment. [Footnote omitted]” Baldwin v. New York, supra, at 399 U.S. 71-72, 90 S.Ct. 1890-1891.

In this context, the Louisiana Constitution was adopted in 1974. L.S.A. Const. Art. 1, Sect. 17 provides in pertinent part:

“A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, .... ”

Similarly, a number of criminal statutes were changed as to severity of penalty in order to conform with the principle of a legislatively imposed recognition of sentence as a basis for determination of the petty offense exempt from jury trial. The applicant in this case has demonstrated no other basis.

But until 1976, the aggregation of punishments on charges joined for trial posed no problem as regards the right to a jury trial. In City of Monroe v. Wilhite, 233 So.2d 535, 536 (La.1970), cert. denied 400 U.S. 910, 91 S.Ct. 136, 27 L.Ed.2d 150 (1960), the court held:

“No justification can be found in the constitutional and statutory authority for aggregating the penalties authorized for two or more separate offenses to determine the right to a jury trial. The right to a jury trial is tested by the punishment authorized for the particular offense. The consolidation of the cases for trial does not alter this rule. Consolidation is a procedural devise to conserve trial time.

See also State v. Robertson, 310 So.2d 619 (La.1975).

However, during 1974, the United States Supreme Court rendered Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974). The defendants, Dominick Codispoti and Herbert Langnes, were charged with multiple counts of contempt of court, which allegedly occurred during a criminal trial. After hearing, the defendants were adjudged guilty and sentenced summarily. But the sentences, although individually within the six month limitation set by Baldwin, supra, were ordered served consecutively, resulting in an aggregated penalty of longer than six months. The defendants argued successfully that the trial judge wrongly denied the defense motion for a jury trial in the light of the punishment received.

The Codispoti court reversed the trial court’s ruling that the defendants were not entitled to a jury trial because no term of imprisonment in excess of six months was imposed for any one offense, holding:

“In the case before us, the original trial judge filed the contempt charges against these petitioners, while another judge tried them and imposed the sentences. Because the latter had the power to impose consecutive sentences, as he did here, guilt or innocence on the individual charges bore heavily on the ultimate sentence and was of critical importance. Here the contempts against each petitioner was tried seriatim in one proceeding, and the trial judge not only imposed a separate sentence for each contempt but also determined that the individual sentences were to run consecutively rather than concurrently, a ruling which necessarily extended the prison term to be served beyond that allowable for a petty criminal offense. As a result of this single proceeding, Codispoti was sentenced to three years and three months for his seven contemptuous acts, Langnes to two years and eight months for his six contempts. In terms of the sentence imposed, which was obviously several times more than six months, each contemnor was tried for what was equivalent to a serious offense and was entitled to a jury trial.
“We find unavailing respondent’s contrary argument that petitioners’ con-tempts were separate offenses and that, because no more than a six months' sentence was imposed for any single offense, each contempt was necessarily a petty offense triable without a jury. Notwithstanding respondents’ characterization of the proceeding, the salient fact remains that the contempts arose from a single trial, were charged by a single judge, and were tried in a single proceeding. The individual sentences imposed were then aggregated, one sentence taking account of the others and not beginning until the immediately preceding sentence had expired.” Supra, at 418 U.S. 516-517, 94 S.Ct. 2693-2694.

The Louisiana Supreme Court determined Codispoti, supra, and the Louisiana Constitution, Article 1, Section 17, quoted supra, to require a jury trial in each case where the punishment which could be imposed exceeded six months’ imprisonment and held in State v. McCarroll, 337 So.2d 475, 480 (La.1976), “where two or more charges are joined for trial the right to a jury must be determined by the total punishment which may be imposed in that case.”

The result of McCarroll, supra, was that whenever two or more charges were either joined by bill of information as by C.Cr.P. Article 493 or consolidated for trial as by C.Cr.P. 706, the defendant was entitled to a trial by jury if the potential aggregate imprisonment exceeded six months (or if a fine in excess of $500 could be imposed). See State v. Nettleton, 367 So.2d 755 (La.1979), State v. Jones, 396 So.2d 1272 (La.1981), and State v. Williams, 404 So.2d 954 (La.1981).

The jurisprudence developed a few caveats for the exercise of the defendant’s constitutional right to a trial by jury. If the state joined counts pursuant to C.Cr.P. Article 493, they could not later request a severance merely to defeat a jury trial request. See State v. Jones, supra. Nor if the state proceeded with separate bills could a consolidation be opposed merely because the resultant “case” would entitle a defendant to a jury trial. See State v. Nettleton, 367 So.2d 755 (La.1979), but also see State v. Comeaux, 408 So.2d 1099 (La.1981). Additionally, in cases where a jury is mandated, the Constitution requires that any waiver be “knowingly and intelligently” made and every reasonable presumption against a waiver of the right must be indulged. See McCarroll, supra; Williams, supra. Where the record does not reflect an informed waiver, a reversal is unavoidable. See State v. Williams, supra; State v. Laurendine, 439 So.2d 398 (La.1983).

In State v. Grimble, 397 So.2d 1254 (La.1980), a solution was suggested. Curtis Grimble, the defendant, was charged by a two-count information with D.W.I. (R.S. 14:98) and negligent injuring (R.S. 14:39), each of which is punishable by a maximum of six months’ imprisonment and a fine of either $400 (R.S. 14:98) or $500 (R.S. 14:39). In arguing a motion to sever, the defense noted that he was entitled to a trial by jury. The trial judge acknowledged the correctness of the assertion, and to overcome the dilemma presented, he acceded to the state’s request and agreed to instruct himself that the accused’s punishment would not exceed six months’ imprisonment even in the event of a conviction of both counts. Since the defendant’s exposure to a “non-petty” term of imprisonment was thus ended, the trial court ruled there was no entitlement to a jury.

A majority of the Supreme Court disagreed and ruled as follows:

“The state’s contention that the trial court might effectively curtail an accused’s right to jury trial by agreeing in advance to a limitation of sentence in the event of conviction was impliedly rejected in both McCarroll and in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). [Footnote omitted]. In placing emphasis upon maximum sentence exposure, McCarroll emphasizes that it is the legislative determination of an offense’s seriousness which entitles an accused to jury trial and not the possibly arbitrary decision-making of the trial court.” Grimble, supra, at 1256. See also State v. Jones, supra.

Grimble apparently forms the basis for the contested statute, C.Cr.P. Article 493.1, which provides:

“[wjhenever two or more misdemeanors are joined in accordance with Article 493 in the same indictment or information, the maximum aggregate penalty that may be imposed for the misdemeanors shall not exceed imprisonment for more than six months or a fine of more than five hundred dollars, or both.”

The thrust of the argument against the solution proposed by the trial judge in Grimble, supra, is as noted previously, that the decision of the trial court not to aggregate penalties may be exercised arbitrarily by the judge instead of being legislatively determined. See Grimble, supra, at 1256.

It is the fear of arbitrary action by the judiciary which initiated the jury system. As the Supreme Court observed in Duncan v. Louisiana, at 391 U.S. 156, 88 S.Ct. 1451:

“Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power — a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence. The deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the Due Process Clause of the Fourteenth Amendment, and must therefore be respected by the States.”

Likewise, the court in Codispoti, supra, at 418 U.S. 515-516, 94 S.Ct. 2693 observed:

“Moreover, it is normally the trial judge who, in retrospect, determines which and how many acts of contempt the citation will cover. It is also he or, as is the case here, another judge who will determine guilt or innocence absent a jury, who will impose the sentences and who will determine whether they will run consecutively or concurrently. In the context of the post-verdict adjudication of various acts of contempt, it appears to us that there is posed the very likelihood of arbitrary action that the requirement of jury trial was intended to avoid or alleviate.” [Citation omitted]

With the intervention of the legislature, the result is no longer arbitrary or offensive to due process. The contested codal provision ensures that similarly situated defendants will be treated similarly and that none will be exposed to severity of sentence beyond that legislatively provided.

Accordingly, we find the ruling of the trial court denying jury trial is correct. The stay order staying the proceedings is cancelled and annulled, and this case is remanded to the trial court for further proceedings consistent with the opinion expressed herein.

      . “Any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500.00, or both, is a petty offense.”


author: CHEHARDY, Judge.

text:
    Mark KELLER v. KAISER ALUMINUM & CHEMICAL CORPORATION.
    No. 84-CA-13.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 1984.
    Becnel, Landry & Becnel, Barry J. Landry, William B. Birner, LaPlace, Daniel E. Becnel, Jr., Reserve, for plaintiff-appellee.
    McGlinchey, Stafford, Mintz, Cellini & Lang, Wayne J. Fontana, Kathleen A. Manning, New Orleans, for defendant-appellant.
    Before CHEHARDY, GAUDIN and GRISBAUM, JJ.
   CHEHARDY, Judge.

Plaintiff, Mark Keller, instituted this suit for workmen’s compensation benefits and penalties and attorney’s fees against his employer, Kaiser Aluminum & Chemical Corporation.

Following trial, judgment was rendered in favor of plaintiff for benefits for a period of 175 weeks at a rate of 66⅜% of his salary on the date of the injury, plus interest from date of judicial demand. The claim for attorney’s fees was denied.

A supplemental judgment was rendered on the same day defining plaintiff’s award as follows:

“* * * based on an hourly rate of $7.67 per hour, which equals $306.80 per week. The sum totals $53,690.00 for 175 weeks, of which Plaintiff is entitled to 66%%, or a total of $35,558.88.”

Defendant has appealed.

The parties agree on the following facts:

On September 7, 1978 plaintiff was injured in the course and scope of his employment as a cylinder filler helper at defendant’s plant in St. John the Baptist Parish. At that time he was engaged in a loading operation with the use of a fork lift truck. As he stepped off the fork lift he suffered an injury to his left knee. He was treated at the company’s first aid station and returned to work for a short period later that afternoon. However the condition of his knee worsened and later that day he was taken to Dr. Lawrence McManus, who was substituting for Dr. Turner, the company doctor who was on vacation.

Plaintiff was unable to return to his job for approximately one month, at which time he was assigned to light duties. He continued under the care of Dr. McManus and was referred by him to Dr. Robert Mimeles, an orthopedic surgeon.

Mimeles recommended surgery which was performed on November 30, 1978. Shortly after the surgery a staph infection set in while plaintiff was hospitalized, greatly retarding plaintiff’s progress, and two further operations were necessary because of the infection.

Plaintiff returned to work full time on September 4, 1979. He was in the same work classification as the one he held prior to his injury, but the duties were not identical to those he had previously performed. The pay rate was the same plaintiff would have earned if there had been no accident and no change in his duties.

Plaintiff was unable to work for 434A weeks following the accident and was paid compensation benefits of $141.00 per week, for a total of $6,143.56. Kaiser also paid all of plaintiff’s medical expenses, which amounted to $19,905.72.

Following his return to work plaintiff filed this suit seeking additional compensation under the provisions of the Louisiana Workmen’s Compensation statutes. He claims total and permanent disability benefits allegedly due because of the severe limitations placed upon him by the injury sustained.

In this court, appellant contends the trial court erred in the following respects:

1. The award is not supported by the evidence;
2. The award as computed in the supplemental judgment is erroneous; and
3. Defendant is entitled to credit for weekly compensation benefits previously paid.

The record consists of the testimony of plaintiff; Dr. McManus; John Whitfield, the defendant’s personnel supervisor and workers’ compensation administrator; the deposition of Dr. Mimeles and various hospital and medical records. In arriving at our conclusions we have carefully considered all of the testimony with particular attention to the medical evidence.

Whitfield testified as to plaintiff’s job description prior to the accident. His duties as a cylinder filler helper were to clean and repair the cylinders, to change the valves on the cylinder bottles, to assist on the line operation, to fill the bottles, to help package and store them, and to assist in the cylinder fill operation.

The personnel records indicate medical restrictions following plaintiff’s return to work were that he should not stand all the time, not walk half the time, not climb when it involved the legs only, and legs and arms, he should not perform intermittent crouching and should not work overtime.

(It is to be noted that plaintiff had voluntarily removed himself from the overtime list and was not working overtime prior to the injury.)

Plaintiff testified he had injured his knee playing softball in the early 1970s, but for the past 7 or 8 years, prior to his current injury, he had no problems associated with his leg or his knee. He described his accident and medical treatment by Dr. McMa-nus, whose testimony we will discuss in detail later. After one month, plaintiff testified, he returned to light duty on the recommendation of his doctor, but even limited duty proved aggravating.

Plaintiff was then referred to Dr. Mí-meles, who sent him for tests. The doctor indicated a cartilage and a cyst should be removed. The operation was performed on November 30, 1978, and a day or so thereafter a staph infection set in, causing serious complications. Two further operations were performed which we will discuss later in detail in the medical testimony.

Plaintiff returned to work on September 4,1979 with the permanent restrictions outlined above. After his return his duties consisted of inspecting bottles to determine if the valves needed to be changed or removed, or if they required cleaning with soap and steam and a new valve installed.

Plaintiff stated he wears a special brace daily because his knee still has a tendency to give out. He continues to have knee problems as the day wears on.

Since plaintiffs return to work in 1979, he has missed no work because of his knee and is not presently scheduled to see any doctors due to his injury. He is now making more money per week than he was at the time of the accident. At the time of the injury he was earning $7.76 per hour, and at the present time he earns $10.89 per hour. During the entire time he was out of work because of his injury he was paid full compensation.

Dr. McManus testified plaintiff came to the office on September 7,1978 in considerable pain and with substantial swelling of the left knee. Plaintiff described his injury at work and the doctor found obvious injury — a hematoma and bleeding in the area. The knee was asperated and plaintiff was placed on crutches. Treatment consisted of ice packs, an anti-inflammatory drug, bed rest at home and heat to the knee. The preliminary diagnosis was hemostasis.

On September 11 plaintiff was much improved and a heavy duty elastic knee support was prescribed. He was also seen on September 18 with more swelling and another 25 cc’s of blood was asperated. There was no evidence of cartilage or ligament injury and the knee was stable.

On September 25 there was slight swelling but no tenderness. Crutches were discontinued and the patient was referred to Dr. Turner, who had returned from vacation. Dr. McManus has not seen plaintiff since that time. No x-rays were taken during the period of his treatment because McManus concluded the injury was a simple type that should not produce a fracture.

Dr. Mímeles stated he first saw plaintiff on October 24, 1978. A history was taken relative to the accident and the previous medical treatment in connection therewith.

Upon examination the doctor found mild effusion (swelling) and joint line tenderness which indicated a possible torn cartilage. There was some arthritis under the kneecap. An arthrogram was performed indicating plaintiff had a torn medial meniscus.

Plaintiff was hospitalized on November 29, 1978 and knee surgery was performed — an arthrotomy involving removal of the medial meniscus, shaving of the chondromalacia of the patella and advancement of the vastus medius obliquus muscle, which the doctor described as “quite a bit of surgery.”

Following surgery plaintiff developed an infection in the knee accompanied by severe bleeding. He required further surgery on December 13 involving opening the knee, irrigating it and closing it.

A hemotologist was called in because of persistent bleeding and plaintiff required 10 to 12 units of blood, not due to blood in the knee joint, but because the patient he-matolized in such a way that his own body ate up his blood cells.

This led to the complication of infection in plaintiff’s knee leading up to the surgery on December 13. The second operation succeeded in getting rid of the infection, but on December 17 another operation was necessary to put irrigation tubes in the knee for suction and fusion.

After the infection was healed, the doctor recommended a Lenox Hill brace because plaintiff had definite laxity in the knee. When you take out a cartilage you do not have the same stability. The brace provided plaintiff with the needed stability and he was able to return to work.

Plaintiff was seen on several occasions after the operation, the latest examination occurring the week before the doctor’s deposition (July 8, 1981). At that time the doctor found the knee was not abnormally lax, that plaintiff no longer needed the Lenox Hill brace and could use a much milder brace. The doctor suggested a sub-luxing knee brace with little hinges on the side, which would be much less cumbersome than the large steel brace plaintiff was wearing.

In fact Mímeles concluded plaintiff did not need any type of external device except for long periods of walking. He stated plaintiff has a very stable knee now, although it was more arthritic, which the doctor attributed somewhat to the aging process. Plaintiff had full range of motion, could bend his knee completely back and straighten it out all the way.

The doctor initially gave plaintiff a rating of 25% disability of the knee. Normally the removal of a cartilage would be about 13% to 14% disability, but an additional disability rating of 5% to 8% was given for the subluxing kneecap that the doctor concluded could be directly related to the injury.

Considering all of the possibilities Dr. Mímeles then gave plaintiff a 30% disability rating because his condition may get progressively “a little worse.” If plaintiff keeps his weight down and does exercise he may do fine, if not he may need further surgery 10 or 20 years later. Mímeles felt plaintiff was not limited at this time in the amount or the ability to climb up and down ladders, but he did not recommend it. He found plaintiff was not permanently disabled. He is able to do all of the things he wants to do and if he does not do a lot of walking, climbing, stooping or bending he should continue to do fairly well.

While giving plaintiff a 30% disability rating he indicated there were very few things he could not do if he wanted to.

There was no reason plaintiff could not continue to hunt and fish, and he is back at gainful employment, so Mimeles found he was not disabled at this time. He was of the opinion that 30% disability was a high rating. He would not be surprised if 4 or 5 other doctors would give a lesser disability rating. However, all things considered, knowing of the 3 operative procedures he had performed and having followed plaintiff’s case closely, he thought that while a disability rating of 30% might be high it was nevertheless fair.

We have discussed the medical evidence in detail, because the trial court made an award based upon total and permanent disability. Appellant claims appellee is entitled to an award based upon the 30% disability rating. We agree with appellant’s position.

In its reasons for judgment the trial court recognized that plaintiff suffered no diminution in earnings and concluded the award should be determined under the provisions of the statute relating to specific disabilities.

The trial court awarded plaintiff ⅜ of his wages for 175 weeks under the provisions of LSA-R.S. 23:1221(4)(h) as though plaintiff had suffered the full loss of use of his leg.

However, the medical evidence shows that plaintiff sustained only a 30% disability of that leg and the award should properly be computed under the provisions of R.S. 23:1221(4)(o), which at the time of the accident provided as follows:

“In all cases involving a permanent partial loss of the use or function of the members mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.”

Plaintiff remains gainfully employed despite the injury he sustained and has suffered no diminution in earnings. His right to additional compensation is derived from the specific loss provisions of the compensation statute. R.S. 23:1221(4); Bernal v. Employers Commercial Union Ins. Co., 329 So.2d 907 (La.App. 2d Cir.1976); Malone-Johnson “Workmen’s Compensation” 2d Ed., La.Civil Law Treatise, Vol. 13, Sec. 282, pp. 649-650.

If the loss of use or function is partial, the provisions of R.S. 23:1221(4)(o) apply and require the award to reflect the proportionate disability only. Chipman v. Insurance Co. of North America, 389 So.2d 432 (La.App. 2d Cir.1980); Evans v. Naihaus, 326 So.2d 601 (La.App. 4th Cir.1976).

The correct method of computation is described in Bernal v. Employers Commercial Union Ins. Co., supra (cited by the trial court in its reasons for judgment).

In computing the award under R.S. 23:1221(4)(o), the court used the weekly earnings at the time of the accident as a basis, applied the statutory percentage, and then applied the disability rating to determine the applicable weekly compensation. The total award was the weekly rate established by the formula to be paid for the statutory period of 175 weeks. This method of computation was also utilized in Kelly v. City of New Orleans, 414 So.2d 770 (La.1982), and Chipman v. Insurance Co. of North America, supra.

Applying the Bernal formula to the facts in the instant case, we find the benefits due as follows:

Plaintiff’s hourly wage $ 7.67
Hours worked per week X 40
Average Weekly Wage $ 306.80
Statutory Percentage X 66 2/3⅞
$ 204.54
Assigned Disability Rate X 30⅞
Weekly Compensation Rate $ 61.36
Statutory Period X 175 weeks
Total benefits due under
R.S. 23:1221(4)(o) $10,738.00

We agree the evidence does not support an award for total and permanent disability benefits and that the computation found in the supplemental judgment is erroneous. We therefore will amend it accordingly.

Appellant further claims credit for benefits already paid.

During the period plaintiff was unable to work he was paid weekly benefits under the provisions of R.S. 23:1221(1) for temporary total disability. This period of disability extended from September 7, 1978 to October 9, 1978, and from November 29, 1978 to September 4, 1979, a period of 43⅞⅞ weeks. He received $141.00 each week for those periods of disability, or a total of $6,143.56.

Defendant claims a credit in that amount against its liability to plaintiff for his permanent partial disability.

At the time of this accident, LSA-R.S. 23:1223 provided:

“Where compensation has been paid under subdivisions (1), (2), or (3), of R.S. 23:1221, the amount of such payment shall be deducted from any compensation allowed under subdivision (4) thereof or under Sub-part C of this Part.”

Under the above-quoted statute, appellant is entitled to credit for benefits paid. Thus the actual award due plaintiff is computed as follows: total benefits due under R.S. 23:1221(4)(o) [175 weeks], $10,738.00, less credits for benefits paid, $6,143.56 = $4,594.44 benefits due.

Accordingly for the reasons assigned the judgments appealed from are amended to reduce the compensation benefits awarded plaintiff from 66%% of plaintiffs salary for a period of 175 weeks from the date of the injury (based upon an hourly rate of $7.67 per week, which equals $306.80 per week) to 30% of $306.80 per week for a period of 175 weeks, subject to credit for amounts already paid, with interest from due date of each payment until paid.

As thus amended, the judgment appealed from is affirmed.

AMENDED AND AFFIRMED.

      . We note ex proprio motu that the original judgment awarded interest from date of demand. Interest is properly awarded in compensation matters from the due date of each payment. Crockett v. St. Paul Ins. Co., 413 So.2d 949 (La.App. 1st Cir.1982); Chisholm v. L.S. Womack, Inc., 424 So.2d 1138 (La.App. 1st Cir.1982).