Freeman v. City of Mobile, Alabama , 146 F.3d 1292 ( 1998 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________
No. 97-6047
FILED
_______________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
07/21/98
D. C. Docket No. 93-0555-AH-M THOMAS K. KAHN
CLERK
CLYDE H. FREEMAN, et al.,
Plaintiffs-Appellants,
versus
CITY OF MOBILE, ALA.,
Defendant-Appellee.
______________________________
Appeal from the United States District Court
for the Southern District of Alabama
______________________________
(July 21, 1998)
Before BIRCH, Circuit Judge, and HILL and KRAVITCH, Senior
Circuit Judges.
BIRCH, Circuit Judge:
Several dozen police officers (the “Appellants”) seek in this
case to force the City of Mobile, Alabama (the “City”) to pay them
overtime compensation under the Fair Labor Standards Act, 29
U.S.C. §§ 201-19 (the “FLSA”), for time they have spent on roll-
call and other pre- and post-shift duties. Appellants also demand
overtime pay from the City on a state law contract claim, based on
a 1969 Alabama law that entitles policemen in Mobile County to
overtime compensation for work in excess of 40 hours per week.
In the district court, Appellants lost their FLSA claims on summary
judgment because the court held that the City was entitled to a
statutory exemption under 29 U.S.C. § 207(k) (the “7(k)
exemption”) and that the Department of Labor’s (the “DOL”’s) no-
docking regulation, 29 C.F.R. § 541.118(a), was invalid as
applied. Appellants also lost their contract claim because the
district court ruled that the act on which their claim was based had
been repealed. On appeal, Appellants argue that the City has not
qualified for a 7(k) exemption, that the Supreme Court’s recent
decision in Auer v. Robbins, __ U.S. __, 117 S. Ct. 905, __ L. Ed.
2d __ (1997), establishes the validity of the no-docking rule, and
2
that the Alabama statute underlying their contract claim is still
good law. Although we agree with the district court that the City is
entitled to a 7(k) exemption, we believe that the pay-docking issue
merits further consideration by the district court in light of Auer,
and we are concerned that Appellants’s contract claim raises
important issues of state law that it would be better for the
Supreme Court of Alabama to decide. Therefore, we AFFIRM IN
PART, REVERSE IN PART, and CERTIFY two state law
questions to the Supreme Court of Alabama.
I. BACKGROUND
Appellants are patrol officers, sergeants, and lieutenants in
the Uniform Services Divisions of the Mobile Police Department
(the “MPD”). As such, the officers are subject to the “Rules and
Regulations” adopted by the Mobile County Personnel Board (the
“Personnel Board”), which has authority under Alabama law to
establish job classification and compensation plans for the MPD.
3
See generally 1939 Ala. Local Acts 470 (“Act 470"). Appellants,
however, are actually in the employ of the City, which is free
under the Personnel Board’s Rules to choose a work period for its
employees.
In 1974, the City Commission adopted Resolution 60-1440
“establish[ing] a Fourteen (14) Day work period for all members of
the Mobile Police Department . . . .” R3-76 at 10. At least in part,
the City adopted this resolution in response to Congress’s
extension of the FLSA in 1974 to cover state and local
governments. Although the Supreme Court subsequently found
Congress’s 1974 amendments to the FLSA unconstitutional, see
National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465,
49 L. Ed. 2d 245 (1976), the City never repealed Resolution 60-
1440. As a result, the Resolution has remained in place through
the Supreme Court’s reversal of Usery in Garcia v. San Antonio
Metro. Transit Auth., 469 U.S. 528, 105 S. Ct. 1005, 83 L. Ed. 2d
41016 (1985), and Congress’s subsequent re-extension of the
FLSA.
Following Congress’s re-extension of the FLSA, the
Personnel Board amended its Rules to address “Payment for
Overtime. In Rule 3.1(c), the Personnel Board mandated that:
All employees non-exempt from the provisions of the
Fair Labor Standards Act shall be compensated for
overtime for all hours paid in excess of forty (40) hours
per week at one and one half (1-½) times the
employees’ hourly rate of pay, or in the alternative, shall
be awarded compensatory time in accordance with the
provisions of said Act. . . .
R3-76 at 8. In adopting this rule, the Personnel Board may or
may not have repealed an earlier “local act” passed by the
Alabama state legislature, 1969 Ala. Local Acts 856 (“Act 856"),
which mandated in pertinent part that:
In all counties coming within the purview of this Act, all
policemen employed by any city in the county and all deputy
sheriffs in such counties shall be entitled to one and one-half
(1 1/2) times their hourly wage for each hour worked in
excess of forty (40) hours a week in any one week.
5
Although the Personnel Board has in Rule 3.1(c) required
overtime pay for “non-exempt” City employees, it has not adopted
any Rule specifying those positions which it understands to be
exempt from the FLSA. Moreover, the City continues to have
authority to set its employees’ pay periods and to determine their
work schedules. Pursuant to this authority, the City pays its patrol
officers, sergeants, and lieutenants every other Friday, reflecting a
14-day payroll period. As part of their regular work schedules, the
City’s patrol officers must report for roll call ten minutes before
each eight-hour shift. With this time taken into account, the patrol
officers’ regular work schedule is 81 hours and 40 minutes for ten
work days in a 14-day payroll period. Similarly, the City’s
sergeants and lieutenants also must devote time to roll call before
their 8-hour shifts. In addition, sergeants and lieutenants must, as
part of their regular duties, train, supervise, and discipline their
squads of patrol officers. As a result of these responsibilities, the
City’s sergeants and lieutenants often must perform significant
6
pre- and post-shift activities, causing them to work more than 86
hours within a 14-day payroll period.1 The City does not pay its
patrol officers, sergeants, or lieutenants any overtime
compensation for time spent on roll call; the City pays its patrol
officers time-and-a-half for work over 81 hours and 40 minutes in
a 14-day payroll period (i.e., for work over 80 hours of shifts plus
pre-shift time spent on roll call), but it does not pay its sergeants
or lieutenants any additional compensation for overtime work.
As an additional component of the City’s pay scheme, its
patrol officers, sergeants, and lieutenants are all subject to
disciplinary pay-docking under the MPD’s “General Orders” for a
variety of misbehaviors, including infractions of non-safety rules.
As the district court found, the City has in fact docked the pay of
several sergeants and lieutenants for violations of non-safety
rules. Although the City claims on appeal to have reimbursed
1
Although the precise number of hours worked by the City’s sergeants and lieutenants is
in dispute, we assume for purposes of this appeal that they regularly work, as alleged, for 90
hours within each 14-day payroll period.
7
those sergeants and lieutenants whom it has subjected to non-
safety-related, disciplinary pay-docking, Appellants vigorously
dispute the City’s assertion, and the record on the reimbursement
issue is inconclusive.
In 1993, a number of Mobile’s police officers sought overtime
pay from the City for time spent on roll call. In response to these
officers’ inquiries, the City’s Police Chief issued a memorandum
stating that:
[S]ince the Police Department has an established
work period of at least 7 days (ours is actually 14 days),
the Department is not required to pay overtime
compensation unless you work more than 86 hours
during those 14 days. Because you are regularly
scheduled for only 81 hours and 40 minutes . . . , you
are not entitled to overtime pay for roll call.
R3-76 at 12. In conformance with the Chief’s memorandum, the
City has refused to pay its patrol officers overtime compensation
for time spent on roll call. In addition, the City has continued to
deny overtime compensation to its sergeants and lieutenants.
8
Unsatisfied with the City’s policy, Appellants filed suit against
the City on July 2, 1993, in the district court. Specifically,
Appellants alleged that the City had violated their rights to
overtime and straight pay under the FLSA; Appellants also
claimed that the City had breached their contractual right to
overtime pay under Alabama Local Act 856 and Rule 3.1(c).
In August, 1994, the City moved for summary judgment on
three grounds. First, the City argued that, under the FLSA’s 7(k)
exemption, it is not required to pay overtime compensation to any
member of its police force who does not work more than 86 hours
in a 14-day payroll period. Second, the City contended that it is
not required to pay its sergeants or lieutenants any overtime
compensation whatsoever, regardless of their hours, because they
are “executive” employees. Third, the City maintained that
Appellants are not entitled to overtime compensation as a matter
of contract law because Rule 3.1(c) expressly incorporated the
FLSA’s exemptions and thereby repealed Act 856 by implication.
9
Subsequently, Appellants cross-moved for summary
judgment. Among their asserted grounds for summary judgment,
Appellants argued that (1) the City does not qualify for a 7(k)
exemption because it has not affirmatively and expressly adopted
a 7(k) plan, (2) the City’s sergeants and lieutenants are not exempt
as executive employees because they are subject to non-safety,
disciplinary reductions in pay in violation of the DOL’s no-docking
rule, (3) Act 856 and Rule 3.1(c) both established a contractual
right for Appellants to overtime pay, and (4) at a minimum the
FLSA requires that the City provide straight pay (as opposed to
“time-and-a-half” overtime pay) for work in excess of 40 hours in
any 7-day work week.
On October 27, 1994, the district court entered summary
judgment for the City against Appellants. In doing so, the district
court held that the City was entitled to a 7(k) exemption and that
the no-docking rule was invalid as applied to the City.2 In addition,
2
Specifically, the district court held that the no-docking
rule was invalid because the regulation violated Congress’s
10
the district court rejected the Appellants’s contract claims on the
grounds that Rule 3.1(c) had incorporated the FLSA’s exemptions
and repealed Act 856.
Upon review of the district court’s order on appeal, this court
found sua sponte that the district court had failed to resolve
Appellants’s claim for straight pay. Accordingly, we held that we
lacked subject matter jurisdiction because the district court’s
judgment was not final, and we remanded the case to the district
court. See Freeman v. City of Mobile, No. 94-7171 (11th Cir. Aug.
28, 1996). On remand, Appellants did not contest the City’s
argument that the FLSA does not govern straight pay, and the
district court entered judgment against Appellants on that
remaining issue. With the City’s judgment against them now final,
Appellants have timely appealed to this court.
legislative intent in extending the FLSA to cover state and local
governments by reducing the “public accountability” of such
government’s employees.
11
II. DISCUSSION
On appeal, Appellants advance three arguments that merit
discussion. First, Appellants contend that the City must pay
overtime compensation for all time worked by Appellants in excess
of 40 hours per week because the City has not “affirmatively
adopted” a 7(k) plan. Second, Appellants maintain that the
Supreme Court’s recent decision in Auer has established, contrary
to the district court’s holding, that the Department of Labor’s no-
docking rule is valid; Appellants therefore urge us to hold that the
City’s sergeants and lieutenants do not qualify for the executive
exemption because they are subject to pay-docking. Third,
Appellants argue that Rule 3.1(c) and Act 856 give them a
contractual right to overtime for hours that they work in excess of
40 per week. We examine the district court’s grant of summary
judgment de novo, viewing the evidence in the light most favorable
to Appellants. See Avery v. City of Talladega, 24 F.3d 1337, 1340
(11th Cir. 1994).
12
A. THE 7(k) EXEMPTION
Section 207(k) of the FLSA provides that:
No public agency [engaged in law enforcement
activities] shall be deemed to have violated subsection
(a) of this section with respect to the employment of . . .
any employee in law enforcement activities . . . if—
....
(2) in the case of such an employee to whom a
work period of at least 7 but less than 28 days
applies, in his work period the employee receives
for tours of duty which in the aggregate exceed a
number of hours which bears the same ratio to the
number of consecutive days in his work period as
216 hours . . . bears to 28 days,
compensation at a rate not less than one and one-half
times the regular rate at which he is employed.
29 U.S.C. § 207(k). Thus, if a city government adopts a work
period of 7 to 28 days for its police force, it may require its officers
to work more than 40 hours per week without having to pay
overtime. See Birdwell v. City of Gadsen, 970 F.2d 802, 804 (11th
Cir. 1992). Applying this statutory formula, a city need not pay
overtime unless an employee works more than 86 hours in a 14-
day work period. See 29 C.F.R. §§ 553.230. In determining
13
whether a public agency is entitled to a 7(k) exemption, we
narrowly construe the exception against the employer, and we
require the employer to show by “clear and affirmative” evidence
that it has adopted a work period of between 7 and 28 days. See
Birdwell, 970 F.2d at 805.
To support its claim to a 7(k) exemption, the City cites
Resolution 60-1440, its 14-day payroll period, and the 1993
memorandum from the Mobile Police Chief reaffirming and
explaining Appellants’s work period. To rebut this evidence,
Appellants argue that the City has not adopted any resolution
containing language explicitly adopting a 7(k) compensation plan.
Under our precedents, however, the City does not have to make
any such “affirmative” showing. Rather, it is sufficient that the City
can show, through Resolution 60-1440 and other circumstantial
evidence, that it has adopted a 14-day work period.3 See Birdwell,
3
Appellants also refer at length to a large number of affidavits, many of which were
stricken in whole or in part by the district court, that Appellants contend establish that the City
never intended, before initiation of the present litigation, to avail itself of the 7(k) exemption.
Even if we were to consider Appellants’s affidavits, they would not be relevant to the critical
14
970 at 806; Avery, 24 at 1343. Since Appellants have offered no
relevant evidence of their own tending to show that the City does
not have a 14-day work period, there is no dispute of material fact
for a jury to resolve. Thus, we hold that the City is entitled to a
7(k) exemption and so need not pay overtime compensation to any
of the appellant patrol officers, sergeants, or lieutenants for up to
86 hours of work in any 14-day work period.
B. THE NO-DOCKING RULE
Unlike the appellant patrol officers, the appellant sergeants
and lieutenants sometimes work more than 86 hours in a 14-day
work period, without receiving overtime compensation. The City,
however, argues that it is exempt from paying its sergeants and
lieutenants overtime compensation because they are “executive”
inquiry under 7(k): whether the City has established a 14-day work period. Moreover, the City
may choose to be more generous with its overtime pay than the FLSA allows, as it has in paying
its patrol officers time-and-a-half for work over 81 hours and 40 minutes in a 14-day work
period, without sacrificing its right under the FLSA to avail itself of a 7(k) exemption. See
Birdwell, 970 F.2d at 806.
15
employees under 29 U.S.C. § 213(a)(1). According to § 213(a)(1),
the overtime provisions of the FLSA do not apply to “any employee
employed in a bona fide executive, administrative, or professional
capacity.” For this exception to apply, the sergeants and
lieutenants must perform “executive duties” and be paid “on a
salary basis.” See 29 C.F.R. § 541.1. Again, the City bears the
burden of proving the applicability of the exception, and we
construe the exemption narrowly against the employer. See
Avery, 24 F.3d at 1340.
Although the lieutenants and sergeants do not dispute that
they perform “executive duties,” they contend that they do not
meet the “salary basis” test because the City has not complied
with the DOL’s no-docking rule regarding unpaid disciplinary
suspensions. See 29 C.F.R. § 541.118(a). Under this rule, an
employer may only subject its salaried employees to deductions
for (1) absence for a day or more for personal reasons other than
sickness or accident, see id. § 541.118(a)(2); (2) absence for a
16
day or more for sickness or disability, if the deduction is made in
accordance with a bona fide sick leave plan, see id. §
541.118(a)(3); (3) absence resulting from good faith penalization
for infractions of safety rules of major significance, see id. §
541.118(a)(5); (4) absence for less than a day for personal
reasons, sickness, or injury, if the deduction is made in
accordance with an accrued leave plan, see id. § 541.5d(a); or (5)
absence due to a budget-related furlough, see id. § 541.5d(b).
In its order, the district court found that the City’s past
suspensions of sergeants and lieutenants raised material
questions of fact as to whether the City had violated the no-
docking rule. Nonetheless, the district court granted summary
judgment for the City because the court thought that the regulation
was invalid as applied to the City; the district court believed that
“[i]t could not have been Congress’ intent that public accountability
should be sacrificed by a public agency such as the City in order
17
for it to comply with the provisions of the FLSA exemptions.” R3-
76 at 30.
While this case has been pending on appeal, however, the
Supreme Court has ruled that the no-docking rule is valid with
regard to state and local governments. See Auer, __ U.S. __, 117
S. Ct. at 909-10. Although the City readily concedes that Auer has
eviscerated the basis for the district court’s holding on the
executive exemption issue, it argues that the “window of
corrections” established by DOL regulations allows municipalities
to avoid violating the salary rule by reimbursing improperly-docked
employees. See 29 C.F.R. § 541.118(a)(6) (“[W]here a deduction
not permitted by these interpretations is inadvertent, or is made for
reasons other than lack of work, the exemption will not be
considered to have been lost if the employer reimburses the
employee for such deductions and promises to comply in the
future.”). In support of this argument, the City assures us that it
has reimbursed the sergeants and lieutenants whom it has
18
previously docked, and it promises not to violate the no-docking
rule in the future. See Auer, __ U.S. __, 117 S. Ct. at 912; Davis
v. City of Hollywood, 120 F.3d 1178, 1180-81 (11th Cir. 1997). In
response, Appellants vigorously contends that the City is not
properly reimbursing several of the affected sergeants and
lieutenants.
In light of the Supreme Court’s intervening Auer decision and
the inconclusiveness of the record with regard to reimbursement of
any previously disciplined sergeants and lieutenants, we agree
with Appellants that we should remand this case to the district
court for further consideration. Because we believe that the
Appellants’s contract claim presents difficult, important, and
dispositive issues of Alabama law, however, we will hold this
portion of the case in abeyance while we await the Supreme Court
of Alabama’s resolution of the questions we certify below.4
4
If necessary after the Supreme Court of Alabama has resolved the certified questions, we
will ask the district court on remand to determine whether Appellants have raised a material
question of fact with regard to the City’s docking of sergeants and lieutenants, given the City’s
claim to have availed itself of the docking rule’s “window of corrections.”
19
C. The State Law Claims
Beyond their FLSA claims, Appellants argue that they have
contractual rights under Rule 3.1(c) and Act 856 to overtime
compensation. Unlike the pay-docking issue, which at most
affects only the appellant sergeants and lieutenants, these claims
would, if successful, result in overtime pay for all of the Appellants.
As this court has previously ruled, a personnel ordinance may
establish a contract entitling local government employees to
overtime pay. See Kohlheim v. Glynn County, 915 F.2d 1473,
1479 (11th Cir. 1990). Such a contract may give employees rights
to overtime compensation beyond those required by the FLSA
(i.e., the FLSA does not preempt state law contract provisions that
are more generous than the FLSA demands). See, e.g., Avery, 24
F.3d at 1347-48.
Before discussing the different issues presented by
Appellants’s claim under Act 856, we first dispense with
Appellants’s contractual claim under Rule 3.1(c). In contrast to Act
20
856, which mandates that “all policemen” shall receive overtime
pay for work in excess of 40 hours per week, Rule 3.1(c) requires
only that “[a]ll employees non-exempt from the provisions of the
Fair Labor Standards Act” shall receive overtime pay. On its face,
therefore, Rule 3.1(c) incorporates the FLSA’s exemptions into its
guarantee of overtime compensation. Thus, Appellants can not
have a greater contractual right to overtime pay under Rule 3.1(c)
than they have under the FLSA. See Avery, 24 F.3d at 1348(holding that an employee handbook incorporating the FLSA
exemptions could not establish a greater contractual right to
overtime compensation than the plaintiffs’ right to such pay under
the FLSA). As a result, the Appellants’s claim for overtime
compensation under Rule 3.1(c) has no more (or less) merit than
their federal law FLSA claims discussed above.
Appellants’s claim under Act 856 is much more difficult to
resolve. In its arguments to this court, the City has not questioned
that, if Act 856 is still valid law in Mobile County, then it has a
21
contractual obligation under the Act to pay all of the Appellants
overtime compensation for any time that they have worked in
excess of 40 hours per week. The City, however, urges us to
affirm the district court’s ruling that the Personnel Board repealed
Act 856 by implication when it enacted Rule 3.1(c). Having
carefully considered the parties’ contentions with regard to the
repeal issue, we face two difficult questions of Alabama law that
go to the heart of the legal relationship between Alabama’s state
government and its county personnel boards. Because we do not
wish to publish an opinion and judgment that, if relied upon by
parties and political units in Alabama, could interfere with
Alabama’s constitutional system, or its policy regarding payment of
overtime compensation for Mobile employees, we therefore set out
these questions in some detail and certify them to the Supreme
Court of Alabama.5
5
See Blue Cross and Blue Shield of Alabama, Inc. v. Nielsen,
116 F.3d 1406, 1413 (11th Cir. 1997) (“The final arbiter of state
law is the state supreme court, which is another way of saying
that Alabama law is what the Alabama Supreme Court says it is. .
. . Because the only authoritative voice on Alabama law is the
22
First, we are uncertain as to whether the Personnel Board
has the power to repeal Act 856. Regarding this question, we
have found a number of relevant statutory provisions and Alabama
cases, yet we are not confident that any of these is dispositive.
Under Act 470, the Personnel Board’s rules have “the force and
effect of law.” Act 470 § IX(b). Applying this provision, the City
argues that the Alabama legislature has granted the Personnel
Board authority to repeal local acts such as Act 856.
Perhaps running against the City’s position, Act 470's § XI
requires the Mobile County Personnel Director to submit a “Pay
Plan” that is “not inconsistent with such rate or rates as may
otherwise in specific instances be fixed by law.” This provision,
however, by its terms only applies to the Personnel Director, who
is an employee of the Personnel Board. Moreover, the Alabama
courts long ago explicitly held that § XI does not limit the actions of
the Personnel Board:
Alabama Supreme Court, it is axiomatic that that court is the
best one to decide issues of Alabama law.”) (citation omitted).
23
As we construe Section XI, it specifies certain facts and
information the Director shall take into consideration in
formulating his Pay Plan and the italicized words may
confine his suggested pay plan to the rates of pay
already “fixed by law,” but even so, they in no wise limit
or restrict the Personnel Board . . . .
Stone v. State ex rel. Goetz, 8 So. 2d 208, 209 (Ala. Civ. App.
1942); accord Stone v. State ex rel. O’Connor, 8 So. 210, 212
(Ala. Civ. App. 1942).
Additionally, § IX(c) of Act 470 states that the Personnel
Board may enact rules “not inconsistent with the laws of the state.”
Although this provision may preclude the Personnel Board from
repealing Act 470, it does not appear to require such a
construction when read in the larger context of § IX as a whole. In
part (b) of § IX, Act 470 declares that “Rules adopted under this
section shall have the force and effect of law.” In reading these
portions of § IX together, we think that one could conclude that §
IX gives the Personnel Board power to promulgate and repeal
local law (§ IX(b)), but only if it is consistent with Alabama’s
24
general (as opposed to “local”) laws (§ IX(c)).6 Consistent with this
possible view of § IX, the Alabama courts not only have construed
§ IX to give the Personnel Board sweeping regulatory power, see
Jordan v. City of Mobile, 71 So. 2d 513, 519 (Ala. 1954), but also
have gone so far as to state that, under § IX, the Personnel
Board’s rulemaking power is “co-extensive with that of the
legislature,” Mobile Fire Fighters Assoc. v. Personnel Board of
Mobile County, No. 2960962, (Ala. Civ. Ct. Feb. 13, 1998). Thus,
§ IX(c) is an ambiguous
provision that may or may not foreclose the Personnel Board from
repealing a “local act” such as Act 856.7
Beyond these particular provisions of Act 470, the Alabama
courts have, in several cases, discussed the limits of the
Personnel Board’s power under the Act, although they appear
6
Alabama often makes a distinction between “specific” or “local” acts of its legislature
applying only to a part of the state and “general” acts of its legislature applying to the whole
state. See, e.g., Buskey v. Mobile County Bd. of Registrars, 501 So. 2d 447, 452 (Ala. 1986).
7
We note that, to the extent that § IX is ambiguous, the Alabama courts have repeatedly
deferred to the Personnel Board’s constructions of Act 470. See Jordan, 71 So. 2d at 520;
Mobile Fire Fighters.
25
never to have addressed directly the question of whether the
Personnel Board can repeal local acts of the legislature.
Repeatedly, Alabama courts have held that the Personnel Board
may not enact any rule amending or subverting Act 470 itself,
since Act 470 is the statute from which the Board derives its
authority.8 For example, in Personnel Board of Mobile County v.
City of Mobile, the Alabama Supreme Court ruled that the
Personnel Board could not circumvent an amendment to Act 470
that removed the Personnel Board’s authority to regulate the City’s
8
See Mitchell v. Greenough, 325 So. 2d 158, 160 (Ala. 1976)
(holding that the Personnel Board cannot amend or circumvent Act
470); Grant v. City of Mobile, 282 So. 2d 291, 293-94 (Ala. 1973)
(same); Personnel Board of Mobile County v. City of Mobile, 84
So. 2d 365, 369 (Ala. 1955) (holding that the Personnel Board
could not circumvent an amendment to Act 470 that removed the
Personnel Board’s authority to regulate the City’s employment of
a police chief); Jordan, 71 So. 2d at 517-18, 520 (stating that
the Personnel Board may not subvert or repeal Act 470 but holding
that courts should defer to the Personnel Board’s construction of
Act 470); Mobile County v. State ex rel. Farmer, 3 So. 2d 435,
437 (Ala. Civ. App. 1941) (holding that the Personnel Board could
not amend the state legislature’s “Enabling Act,” which the
legislature passed in the same session as Act 470 and which
amended Act 470); cf. Smith v. City of Pleasant Grove, 672 So.
2d 501, 505-07 (Ala. 1995) (holding that a county personnel
board, empowered by the state legislature to regulate
“classified” but not “unclassified” types of employment, could
not expand definition of “classified” to include common laborers,
when common laborers were explicitly defined as “unclassified”
employees in the statute giving the personnel board its
regulatory power).
26
employment of a police chief. See 84 So. 2d at 369. Applying
these Alabama precedents, one could well conclude that the
Personnel Board does not have the power to repeal or circumvent
Act 856 because Act 856 amended Act 470. If, by enacting Act
856, the Alabama legislature took away power from the Personnel
Board (rather than simply writing a local-law labor regulation
equivalent to one of the Board’s rules), then the legislature in
effect amended Act 470's grant of power to the Board, and the
Board cannot repeal or amend this amendment to its founding
statute. Cf. id. at 369.
On the other hand, the Alabama Supreme Court’s holding in
Freeman v. Purvis, 400 So. 2d 389 (Ala. 1981), seems to suggest
that, if Act 856 amended Act 470, it did so in a way that does not
bind the Personnel Board. In Purvis, the Alabama Supreme Court
examined an act quite similar to Act 856; while Act 856 sets
policemen’s hours for overtime, Act 80-797 in Purvis established
minimum salaries for deputy sheriffs. In Purvis, the Personnel
27
Board argued, inter alia, that Act 80-797 violated the Alabama
constitution because it improperly repealed Act 470. The Alabama
Supreme Court, however, held that Act 80-797 did not repeal Act
470 but rather “amended Act No. 470 by supplementation.”
Purvis, 400 So. 2d at 393. Specifically, the Purvis court ruled that
Act 80-797 supplemented the “minimum . . . rate” language of Act
470's § XI. By analogy, then, Purvis would seem to indicate that
Act 856 also amended Act 470 by supplementing § XI. As we
discussed above, and as the Alabama courts have previously held,
however, § XI only concerns the Personnel Director, an employee
of the Personnel Board, and “in no wise limit[s] or restrict[s] the
Personnel Board.” Goetz, 8 So. 2d at 209; accord O’Connor, 8 So.
210 2d at 212. Thus, according to some established Alabama
authorities, Act 856 would seem to have amended only a provision
of Act 470 which the Personnel Board is free to disregard.
In sum, the issue of whether the Personnel Board has the
power to repeal Act 856 presents a difficult and heretofore
28
apparently unsettled question of Alabama law. Because the
answer to this question is dispositive of the patrol officers’ (and
perhaps also the sergeants’ and lieutenants’) claims in this case,
and because we are hesitant to issue an opinion that, if relied
upon by private persons or government officials in Alabama, might
interfere with the fundamental relationship between Alabama’s
state legislature and its county personnel boards, we certify the
following question to the Supreme Court of Alabama pursuant to
Alabama Rule of Appellate Procedure 18:
QUESTION ONE: DOES THE MOBILE COUNTY
PERSONNEL BOARD HAVE THE POWER TO
REPEAL OR OTHERWISE AMEND OR SUPPLANT
LOCAL ACTS PASSED BY THE ALABAMA STATE
LEGISLATURE SUCH AS 1969 ALA. LOCAL ACTS
856?
If the answer to this question is “yes,” then we would ask the
Supreme Court of Alabama to address the subsidiary question of
whether the Personnel Board in fact did repeal Act 856 by
enacting Rule 3.1(c). We would request instruction from the
29
Supreme Court of Alabama concerning this second question
because it involves the juxtaposition of two well-established, but in
this case perhaps contradictory, Alabama principles of statutory
construction.
First, Alabama law clearly disfavors repeal by implication. In
order to find implied repeal, Alabama courts require that two laws
be “repugnant” or in such “conflict with each other” that repeal
must be presumed. See, e.g., Fletcher v. Tuscaloosa Fed. Sav.
and Loan Ass’n., 314 So. 2d 51, 55 (Ala. 1975). Alabama law
does not require, however, that a court accept any construction of
a later statute that is technically consistent with a previous law.
Instead, a court must look to the “legislative intent” underlying the
latter act to determine whether there is a “reasonable construction”
of the second statute that does not conflict with the first. See, e.g.,
Sand Mountain Bank v. Albertville Nat’l Bank, 442 So. 2d 13, 19
(Ala. 1983).9 Applying this rule alone, we think that Rule 3.1(c) is
9
In Fletcher, for example, the Alabama Supreme Court found
that a general banking/loan reform act implicitly repealed an
30
susceptible to two possible constructions: (1) Rule 3.1(c) simply
mandates that all employees under the Personnel Board’s
jurisdiction comply with the overtime provisions of the FLSA; or (2)
Rule 3.1(c), in the context of the whole body of the Personnel
Board’s rules and consistent with the principle of expressio unius,
incorporates the FLSA’s exemptions so that it not only requires
overtime pay for non-FLSA-exempt employees but also bars
overtime pay for FLSA-exempt employees. In other words, Rule
3.1(c) may be susceptible to both non-Act-856-repealing and Act-
856-repealing interpretations.
If the first, non-repealing construction is “reasonable,” then
Alabama’s law on implied repeal requires that a court adopt it so
that both Act 856 and Rule 3.1(c) can be given continued effect.
See, e.g., Sand Mountain Bank, 442 So. 2d at 19. We are
earlier, more specific usury law, even though the two statutes
could “be ascribed mutually exclusive fields of operation.” Id.In reaching this conclusion, the Fletcher court looked not just
to the explicit provisions of the two statutes but also to the
“legislative intent” underlying the second act. See id. at 55-
56.
31
uncertain, however, whether the non-repealing interpretation is
“reasonable” given the Alabama courts’ long-established principle
of deference to contemporary construction. Under Alabama law,
“contemporaneous construction” of a law is entitled to “great
consideration.” State v. Tuscaloosa Bldg. & Loan Ass’n, 161 So.
530, 534 (Ala. 1935). In choosing between competing
constructions of a statute, Alabama courts consider “the
contemporaneous construction placed upon [the statute] by the
courts, by the officers whose duty it was to construe [it], and by the
executive departments and the popular interpretation, as
exemplified in practice for a number of years. . . .” State ex rel.
Fowler v. Stone, 185 So. 404, 408 (Ala. 1938); cf., e.g., Fletcher,
314 So. 2d at 55 (finding implied repeal based on legislative
intent); Sand Mountain, 442 So. 2d at 18 (explaining that in
construing a statute to determine whether there has been an
implied repeal, “a court must look not only to the language of the
statute, but also to the purpose and object of the enactment and its
32
relation to other laws.”). “When the law has contemporaneously
been put into operation, and in doing so a construction has
necessarily been put upon it, this construction, especially if
followed for some considerable period, is entitled to great respect,
as being very probably a true expression of the legislative
purposes, and is not lightly to be overruled.” Trammel v. Conner,
8 So. 495, 496 (Ala. 1890). Applying this principle, we see a
variety of evidence in the record indicating that the Personnel
Board has consistently construed and applied Rule 3.1(c) as
incorporating the FLSA’s exemptions to bar overtime payment for
FLSA-exempt employees—thereby implicitly repealing Act 856.10
10
For example, both past and present Personnel Directors for Mobile County have given
testimony indicating that the Personnel Board has consistently construed Rule 3.1(c), since its
adoption in 1986, as prohibiting overtime payment to FLSA-exempt employees. See Pl. Exh. E,
¶ 26, at 13 (“The Mobile County Personnel Board when it amended Rule 3.1(c), after Garcia,
confirmed that exempt employees under the Fair Labor Standards Act would not be paid
overtime . . . .”); R1-38 (same). Although Judge Kravitch questions the relevance of such
evidence in her special concurrence, see post at __ n.5, the cases she cites are inapposite because
the Personnel Director is not a “legislator” but rather an “executive.” As “executive head of the
[Personnel] Department,” Act 470 § VIII, the Personnel Director must construe and implement
the Personnel Board’s enactments. Cf. State ex rel. Fowler, 185 So. at 408 (stating that Alabama
courts defer to the contemporary construction of “the officers whose duty it was to construe [a
statute]” and of “executive departments,” as “exemplified in practice for a number of years”).
33
Nonetheless, we are not confident as to whether such
contemporary construction evidence may render an interpretation
of a statute or rule so unreasonable as to overcome the Alabama
courts’ disfavor of implied repeal. Out of deference to the
Supreme Court of Alabama, we do not wish to publish a federal
court opinion that might, if relied upon by parties in Alabama,
disrupt unnecessarily the long development of Alabama’s
principles of statutory construction. Therefore, we certify the
following second question to the Supreme Court of Alabama:
QUESTION TWO: IF THE MOBILE COUNTY
PERSONNEL BOARD HAS THE POWER TO REPEAL
ACT 856, DID THE BOARD IN FACT REPEAL ACT 856
BY IMPLICATION WHEN IT ENACTED RULE 3.1(c)?
The particular phrasing of the two certified questions is not
intended to limit the Supreme Court of Alabama in its
consideration of the various issues posed by the entire case as
it perceives them to be. The entire record and the briefs of the
34
parties shall be transmitted to the Supreme Court of Alabama to
assist its determination.
III. CONCLUSION
By demonstrating that it has adopted a 14-day work period,
the City has established that it is entitled to a 7(k) exemption. As a
result, we AFFIRM the district court’s ruling that the City need not
pay overtime under the FLSA to the appellant patrol officers,
sergeants, or lieutenants for up to 86 hours of work within one of
its 14-day work periods. Because of the Supreme Court’s
intervening decision in Auer, however, we must REVERSE the
district court’s holding that the no-docking rule is invalid as applied
to the City and its sergeants and lieutenants (who may work more
than 86 hours per week). Because we believe that state law
issues are dispositive of the case, especially with regard to the
patrol officers, we hold the no-docking portion of the case in
35
abeyance while we await the Supreme Court of Alabama’s
resolution of the two CERTIFIED questions.
AFFIRMED IN PART, REVERSED IN PART, and
CERTIFIED to the Supreme Court of Alabama.
KRAVITCH, Senior Circuit Judge, specially concurring:
36
I concur in the majority’s resolution of appellants’ federal-law
claims based on the Fair Labor Standards Act, 29 U.S.C. §§ 201-
209 (the “FLSA”), and appellants’ state-law claim based on the
Mobile County Personnel Board’s Rule 3.1(c) (“Rule 3.1(c)”). I
also join in the majority’s decision to certify to the Alabama
Supreme Court the issue of whether Rule 3.1(c) repealed 1969
Ala. Acts 856 (“Act 856”), a general law of local application that, by
its terms, guarantees overtime compensation to all policemen
employed by cities in Mobile County. Like the majority, I believe
that we should turn to the Alabama Supreme Court, the ultimate
arbiter of Alabama law, for guidance with regard to two heretofore
unresolved questions: (1) whether the Personnel Board has the
authority to repeal Act 856; and (2) assuming that the Personnel
Board has such authority, whether Rule 3.1(c) implicitly repealed
Act 856.
I write separately, however, because I disagree with two
aspects of the majority’s opinion. First, I do not believe that
Freeman v. Purvis, 400 So.2d 389 (Ala. 1981), implies that the
37
Personnel Board has the authority to repeal Act 856. See infra
Part I. Second, I do not agree that “a variety of evidence in the
record” indicates that the Personnel Board contemporaneously
construed Rule 3.1(c) to constitute an implied repeal of Act 856.
See infra Part II.
I.
In Freeman v. Purvis, 400 So.2d 389 (Ala.
1981), the Personnel Board challenged two general
laws of local application that required deputy
sheriffs in Mobile County to be paid at least as
much as state troopers of corresponding rank.
See id. at 390 (citing 1976 Ala. Acts. 710 and
1980 Ala. Acts 797). The trial court ruled that
those state laws are valid and are binding on the
Personnel Board. See id. at 390-91. The Alabama
Supreme Court affirmed. Analyzing 1939 Ala.
Local Acts 470, the law that established the
Personnel Board, the Court explained:
38
It is true that the terms of Act No. 470
granted authority to the Board to approve
both a classification of positions and a
pay plan for them. That pay plan,
however, in the terms of Act No. 470,
shall include for each class of
positions, a minimum and a maximum
rate not inconsistent with such
rate or rates as may otherwise in
specific instances be fixed by
law. . . .
The provisions of Act No. 797 appear to
have accomplished what that proviso
contemplated when they fixed the minimums
for the deputy sheriff class of
positions. Thus Act No. 797 amended Act
No. 470 by supplementation without a
conflict in its terms.
See id. at 393 (quoting 1939 Ala. Local Acts 470
§ XI) (ellipsis in original). According to the
Freeman Court, therefore, any pay plan enacted by
the Personnel Board must comply with the minimum
and maximum rates established by state law.
Freeman provides no support for the
proposition that the Personnel Board has the
authority to repeal Act 856. If the Personnel
Board’s enactment of a rule governing overtime
39
pay effectively constitutes the adoption of a pay
plan, then Freeman would indicate that the
Personnel Board lacks the authority to repeal Act
856. Just as the Personnel Board, under Freeman,
must adhere to the minimum compensation levels
established for deputy sheriffs under Alabama
law, so here the Personnel Board would be bound
to comply with the overtime provisions of Act
856.11
11
Despite the clarity of Freeman’s holding, the majority attempts to graft onto the
Freeman opinion certain language from two earlier, inapposite opinions by the Alabama Court of
Appeals: Stone v. State ex rel. O’Connor, 30 Ala.App. 500, 8 So.2d 210 (Ala. App. Ct. 1942),
and Stone v. State ex rel. Goetz, 30 Ala.App. 489, 8 So.2d 208 (Ala. App. Ct. 1942). In those
cases, the court stated that the Personnel Board could enact pay plans at variance with local laws
that were enacted in 1932, prior to the passage of Local Act 470. In both cases, the court relied
in part on the repeal clause of Local Act 470, which rendered void all inconsistent “laws or parts
of laws heretofore enacted.” 1939 Ala. Local Acts 470 § XXXVI (emphasis added). See Stone,
30 Ala.App. at 502-03, 8 So.2d at 212; Goetz, 30 Ala.App. at 491, 8 So.2d at 209-210.
By contrast, in both the instant case and Freeman, the question is whether the Personnel
Board may enact a pay plan that is inconsistent with a general law of local application enacted
after the passage of Local Act 470. The Freeman Court answered this question
in the negative, see 400 So.2d at 393 (quoting 1939 Ala. Local
Acts 470 § XI), and affirmed the trial court’s ruling that the
Personnel Board was bound by the state laws governing minimum pay
for deputy sheriffs. Indeed, if the Personnel Board were free to
disregard those laws, as the majority implies, then the Freeman
Court would have dismissed the Personnel Board’s suit for lack of
controversy. See Ex parte Blue Cross & Blue Shield of Ala., 582
So.2d 469, 474 (Ala. 1991).
40
Despite my disagreement with the majority’s
reading of Freeman, I concur in certifying to the
Alabama Supreme Court the question of whether the
Personnel Board has the authority to repeal Act
856. This important and heretofore unresolved
issue is best left to the judgment of the Alabama
Supreme Court.12
II.
12
Although no Alabama Supreme Court case directly addresses
whether the Personnel Board has the power to repeal Act 856,
Freeman and Personnel Bd. of Mobile County v. City of Mobile, 264
Ala. 56, 84 So.2d 365 (1955), arguably suggest that the Personnel
Board lacks such power. The Personnel Board’s authority to
establish a rule regarding overtime pay appears to be based upon
either the Personnel Board’s specific authority to enact a pay
plan, see 1939 Ala. Local Acts 470 § XI, cited in Freeman, 400
So.2d at 393, or the Personnel Board’s general authority over the
civil service system, see 1939 Local Acts 470 § VII, cited
in Personnel Bd., 264 Ala. at 58, 84 So.2d at 367. Freeman and
Personnel Bd., respectively, imply that an overtime rule enacted
under either authority must comply with general laws of local
application enacted after the Personnel Board was created. See
Freeman, 400 So.2d at 393 (stating that the Personnel Board’s pay
plan must comply with 1980 Ala. Acts 797); Personnel Bd., 264
Ala. at 61, 84 So.2d at 369 (rejecting the Personnel Board’s
challenge to 1953 Ala. Acts 370, which divested the Personnel
Board of its power under Local Act 470 to control the employment
of police chiefs); see also 1939 Ala. Local Acts 470 § IX(c)
(stating that the Personnel Board may enact “any provisions
relating to the Classified Service, not inconsistent with the
laws of the state, which may be necessary or appropriate to give
effect to the provisions and purposes of this Act”) (emphasis
added).
41
Assuming that the Personnel Board has the
authority to repeal Act 856, the next question is
whether Rule 3.1(c) implicitly repealed Act 856.
“Repeal by implication is not favored. It is
only when two laws are so repugnant to or in
conflict with each other that it must be presumed
that the Legislature intended that the latter
should repeal the former.” Fletcher v.
Tuscaloosa Fed. Sav. and Loan Ass’n, 294 Ala.
173, 177, 314 So.2d 51, 55 (1975) (quoting City
of Birmingham v. Southern Express Co., 164 Ala.
529, 538, 51 So. 159, 162 (1909)). Thus, “[i]f
under a reasonable construction it is possible to
reconcile the acts, both will be given effect.”
Sand Mountain Bank v. Albertville Nat’l Bank, 442
So.2d 13, 19 (Ala. 1983).
Because it is an open question under Alabama
law whether Rule 3.1(c) reasonably may be
42
construed to be in harmony with Act 856, I concur
in the majority’s decision to certify this
question to the Alabama Supreme Court.13 I
disagree, however, with the majority’s statement
that “a variety of evidence in the record”
indicates that the Personnel Board
13
One interpretation of Rule 3.1(c) that does not conflict with Act 856 is that the
Personnel Board enacted Rule 3.1(c) simply to ensure Mobile County agencies’ compliance with
the FLSA. See City of Birmingham v. Personnel Bd. of Jefferson County, 464 So.2d 100, 103
(Ala. Civ. App. 1984) (stating that a personnel board can institute mandamus proceedings to
compel public agencies to comply with its rules). In light of the FLSA’s complicated set of
exemptions for public employees, see 29 U.S.C. §§ 207(j)-(k),(n), 213(a)(1), (b)(20), the
Personnel Board may have believed that centralizing control over agencies’ overtime policies
would help avoid expensive FLSA litigation, see 29 U.S.C. § 216(b) (stating that a public agency
found to have violated FLSA’s overtime requirements is liable to its employees “in the amount
of . . . unpaid overtime compensation . . . and in an additional equal amount as liquidated
damages,” plus attorney’s fees and costs). Under this interpretation, Rule 3.1(c) simply ensures
that agencies pay overtime to non-exempt employees; it does not prohibit agencies from
providing overtime pay to exempt employees if any provision of state law, such as Act 856, so
requires.
This arguable construction of Rule 3.1(c) appears to be consistent with Rule 3.1(c)’s
“language” and “relation to other laws.” Sand Mountain Bank, 442 So.2d at 18. For example,
the fact that the Personnel Board easily could have written Rule 3.1(c) to bar all exempt
employees from receiving overtime pay, but chose not to do so, may indicate that it did not
intend to repeal Act 856. See Anniston Urologic Assocs., P.C. v. Kline, 689 So.2d 54, 59 (Ala.
1997) (“If [repeal of the prior enactment] had been the intent of the Legislature, it could have
made, and now should make, its wishes clearly known.”); see also Fletcher, 294 Ala. at 177, 314
So.2d at 55 (“Implied repeal is essentially a question of determining the legislative intent as
expressed in the statutes.”) (internal quotations omitted). Likewise, the fact that the Personnel
Board enacted Rule 3.1(c) on April 15, 1986, the same day that the FLSA’s overtime protections
became effective as to non-exempt employees of local public agencies, see Fair Labor Standards
Amendments of 1985, Pub. L. No. 99-150, § 2(c)(1), 99 Stat. 787, 788-89, may suggest that Rule
3.1(c) was not intended to affect exempt employees’ rights to overtime pay under state law.
It is unclear, however, whether this harmonious interpretation of Rule 3.1(c) and Act 856
is “reasonable.” Sand Mountain Bank, 442 So.2d at 19. Like the majority, I believe that
resolution of this question is best left to the judgment of the Alabama Supreme Court.
43
contemporaneously construed Rule 3.1(c) to
constitute an implied repeal of Act 856. Even if
the Personnel Board’s contemporaneous
construction of Rule 3.1(c) were relevant,14 I
find no record evidence to suggest that the
Personnel Board ever prohibited the various
agencies within its purview from providing exempt
employees with overtime pay where otherwise
authorized by state law.15
14
The majority has not cited, nor have I found, any Alabama authority indicating that a
court’s inquiry into implied repeal may involve examining an implementing entity’s
“contemporaneous construction” of the latter law. Cf. State ex rel. Fowler v. Stone, 237 Ala. 78,
185 So. 404 (1938) (not involving implied repeal), cited in Maj. Op.; State v. Tuscaloosa
Building & Loan Ass’n, 230 Ala. 476, 161 So. 530 (1935) (same), cited in Maj. Op.; Trammel
v. Connor, 91 Ala. 398, 8 So. 495 (1890) (same), cited in Maj. Op.
15
The majority cites a sentence from the affidavit testimony of Bernard Richardson, the
Personnel Director in 1986. See Pl. Exh. E, ¶ 26, at 13 (stating that the Personnel Board, in
enacting Rule 3.1(c), “confirmed that exempt employees under the Fair Labor Standards Act
would not be paid overtime”). This testimony, however, does not bear on
the contemporaneous construction of Rule 3.1(c). The Personnel
Board, not the Personnel Director, is endowed with the specific
authority to enforce Personnel Board rules, see 1939 Ala. Local
Acts § VII(b)(4), as amended by 1976 Ala. Acts 684 § 2, and
Richardson’s testimony does not indicate that the Personnel Board
ever sought to prohibit local agencies from complying with Act
856. Likewise, Richardson’s testimony does not suggest that the
Personnel Board ever intended that Rule 3.1(c) repeal Act 856.
Not only is ex post opinion testimony inadmissible to establish
the intent of a legislative body, see James v. Todd, 103 So.2d
19, 28-29 (Ala. 1957) (upholding the trial court’s decision to
exclude testimony by members of the Alabama Legislature
concerning the Legislature’s intent in enacting 1955 Ala. Acts
44
III.
Although I disagree with two elements of the
majority opinion, I otherwise fully concur in its
reasoning and result.
570); see also Hamilton v. Autauga County, 289 Ala. 419, 426, 268
So.2d 30, 36 (Ala. 1972), but also Richardson was not even a
member of the Personnel Board and thus is in no position to
speculate on the Board’s intention. Indeed, Richardson’s
testimony, taken as a whole, indicates that Rule 3.1(c) was
intended simply to enforce the FLSA’s overtime provisions for
non-exempt employees. See Pl. Exh. E, ¶ 25, at 12 (“The sole
purpose of amending Rule 3.1(c) was to express, as a policy
statement of the Mobile County Personnel Board, that 29 U.S.C.
§ 207(a)(1) would be implemented.”).
The majority also cites affidavit testimony of the current
Personnel Director, Shannon Weekley, see R1-38, but her testimony
is flawed for the same reasons as Richardson’s. Moreover,
Weekley, who became Personnel Director in 1993, has no insight
into the “contemporaneous construction” of Rule 3.1(c) when it
was enacted in 1986.
45
46