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Orazio v. Department of Police

Court of Appeals of Louisiana, Fourth Circuit

May 23, 2018



          LOBRANO, J., CONCURS IN THE RESULT Raymond C. Burkart, Jr. Attorney at Law Eric J. Hessler Attorney at Law COUNSEL FOR PLAINTIFF/APPELLANT


          Elizabeth S. Robins Deputy City Attorney Cherrell S. Taplin Sr. Chief Deputy City Attorney Rebecca Dietz City Attorney, Orleans Parish COUNSEL FOR DEFENDANT DEPARTMENT OF POLICE/APPELLEE

          Court composed of Judge Edwin A. Lombard, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase

         Norvel Orazio[1] (hereinafter "Plaintiffs"), seeks review of the April 10, 2017 ruling issued by the Civil Service Commission (hereinafter "Commission"). The ruling granted the New Orleans Police Department's (hereinafter "NOPD") request to create sixteen unclassified police commander positions. After consideration of the record before this Court and the applicable law, we affirm the decision of the Commission.

         The facts of this case have previously appeared before this Court and are pertinent to the underlying appeal. In 2010, former NOPD Superintendent Ronal Serpas requested the Commission provide an opinion about a new hybrid position, within the NOPD, which would be comparable to police major and/or police colonel. Orazio, et al. v. City of New Orleans, et al., 2012-0423 (La.App. 4 Cir. 1/16/13), 108 So.3d 284. The Commission noted that the Civil Service Department had concerns regarding the creation of the position because job specifications were not fully developed and as such, the staff was not able to distinguish between the police colonel, police major and police captain positions. Id. Rather than granting the NOPD's request for the exact position requested, the Commission established an unclassified police commander assignment with a special rate of pay. Employees occupying the rank of lieutenant, captain and major would be eligible for the police commander assignment and would operate at the discretion of the Superintendent of Police.

         Plaintiffs disagreed with the Commission granting the assignment and filed a petition with the Commission requesting an investigation into whether the Commission complied with Civ. Ser. R. III § 7.1 when it approved the new police commander assignment. Id. The Commission dismissed the petition and Plaintiffs sought review in this Court. On appeal, this Court found:

[T]he CSC was arbitrary and capricious in denying the entirety of the Plaintiffs' petition without granting an evidentiary and contradictory hearing into the creation of the police commander position given the CSC's legal authority. (internal citations omitted). Therefore, we reverse and remand for proceedings consistent with this opinion.

Id. Although the Commission determined that the police commander title was a "job assignment, " the individual taking on the job obtained a new title and new salary. Id. This Court noted that even though the individual in the police commander "job assignment" or "position" would retain their classified status, the "job assignment" or "position" was essentially unclassified given the nature of the employment description. Id. We found questions surrounding the classified or unclassified status of the "job assignment" or "position" existed and warranted an investigation to ensure the integrity of the merit system was maintained. Id.

         We issued our decision in Orazio I[2] on January 16, 2013. No significant actions were taken in this matter until Plaintiffs filed a motion for a job study on May 20, 2016. On October 24, 2016, the Commission ordered that the Civil Service

         Department conduct a job study and investigation into the NOPD's use of the "commanders' special rate of pay" associated with the special assignment of police commander.[3] On November 4, 2016, Plaintiffs petitioned the Commission to suspend the "commanders' special rate of pay" rule and prohibit the current Superintendent, Micheal Harrison (hereinafter "Chief Harrison"), from appointing employees to the police commander assignment until the completion of the job study by the Civil Service Department. The Commission denied Plaintiffs' petition on November 21, 2016, and Plaintiffs filed an application for supervisory writs on December 15, 2016. On March 7, 2017, this Court denied the writ finding no abuse of discretion by the Commission. Norvel Orazio, et al. v. City of New Orleans, et al., 2016-C-1278.

         On February 20, 2017, Chief Harrison formally requested sixteen unclassified police commander positions which would replace the current police commander assignments. Chief Harrison described the internal issues surrounding the command and control of subordinates which existed with the current police commander assignments. He attributed those issues to the manner in which the assignment was originally created. Chief Harrison stated that the unclassified positions would put the NOPD closer in line with other City Departments regarding the ratio of classified employees to unclassified manager.[4] The requested position would replace the current commander assignment. Also, the job authority and autonomy would be expanded for the requested position. The new expansive police commander position would oversee all personnel who are majors and below, have wide autonomy and authority to draft policies, hire personnel, manage divisional budgets, implement reform projects and participate in policy making efforts. Chief Harrison explained that the positions are not appropriate for classified service because the police commanders must be able to effectively represent the department and the superintendent independently. The Commission did not rule on Chief Harrison's request at this meeting.

         On April 3, 2017, the Civil Service Department's job study and investigation was presented to the Commission. The report concluded that the police commander position did not satisfy the requirements for unclassified status. According to the job study, the position could be performed by a classified employee and did not establish that the commanders would operate with policy-making autonomy. The NOPD responded to the job study and noted that the current police commander assignment is a classified position and, as such, does not allow for policy-making autonomy. The NOPD advised that it intended to delegate the necessary policy-making autonomy, as required by Civ. Ser. R. III § 7.1, to the new position.

         On April 10, 2017, the Commission held a special meeting to consider Chief Harrison's February 20, 2017 request for sixteen unclassified police commander positions. Chief Harrison specified at this meeting that the basis for his request was to ensure that the police commander position would be able to make recommendations and create and execute policy and initiatives without micromanagement from himself or the deputy chief. Additionally, Chief Harrison stated that the current police commander assignment is within the classified service since the employees appointed to the commander assignment retain their classified status.[5] He further stated that as the Superintendent, when a classified police commander fails to adequately perform the required job tasks, the Superintendent is precluded from immediately replacing the individual because of their classified status. Chief Harrison requested the new positions be categorized as unclassified to enable him to take the necessary steps to immediately rectify an employment situation and not have to operate through the civil service system.

         At the meeting, the Commission elected to add an executive session to its agenda to discuss the impact the NOPD's request had on the decision issued from this Court in Orazio I. After concluding the executive session, the Commission approved the NOPD's request for the sixteen unclassified positions. This ruling is ...

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