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Achord v. Department of Fire

Court of Appeals of Louisiana, Fourth Circuit

December 27, 2018

STEVEN ACHORD, ET AL.
v.
DEPARTMENT OF FIRE

          APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 8593 C\W 8602-8628, 8630-8643, 8646-8648, 8655

          LOUIS L. ROBEIN, III CHRISTINA L. CARROLL ROBEIN URANN SPENCER PICARD & CANGEMI, APLC COUNSEL FOR PLAINTIFFS/APPELLANTS

          CHERRELL S. TAPLIN, SENIOR DEPUTY CITY ATTORNEY SUNNI LEBEOUF, CITY ATTORNEY ELIZABETH S. ROBINS, DEPUTY CITY ATTORNEY WILLIAM GOFORTH, ASSISTANT CITY ATTORNEY COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown

          SANDRA CABRINA JENKINS, JUDGE

         This expedited appeal arises from protests filed with the Civil Service Department by 47 New Orleans firefighters ("Firefighters") who were denied promotion to the position of fire captain by the superintendent of the New Orleans Fire Department ("NOFD"), Timothy McConnell ("Supt. McConnell"). The Firefighters appeal the New Orleans Civil Service Commission's (the "Commission") May 24, 2018 "Investigatory Findings and Order," which found that the NOFD's promotional scheme violated the Louisiana Constitution, yet declared that it had no power to remedy this violation by ordering the NOFD to promote the qualified Firefighters who were passed over for promotion. For the reasons that follow, we reverse and remand.

         FACTUAL AND PROCEDURAL BACKGROUND

         In 2014, the Commission voted to adopt a package of rule amendments submitted by the City of New Orleans ("City") under its "Great Place to Work Initiative" ("GPTWI"). One of the goals of GPTWI was to "eliminate the falsely objective rankings based on exams" and "allow managers to interview all the Civil Service Department certified eligible candidates and hire the best qualified one." An important part of the GPTWI was amendments to Civil Service Rule VI, which governs the hiring and promotion process.

         On April 20, 2016, the Civil Service Department sent Supt. McConnell a final ranked list of eligible candidates for the position of fire captain. On July 26, 2016, Supt. McConnell approved new promotional procedures for the fire captain position ("ADM-27"). ADM-27 identified 15 factors that would guide the NOFD's promotional decisions, and called for a promotional committee to interview candidates.

         In late September and early October 2016, Supt. McConnell promoted 41 NOFD employees to fill vacancies for the position of fire captain. Thereafter, the Firefighters who were passed over for promotion filed protests with the Civil Service Department, alleging that they were improperly denied promotions because Supt. McConnell's appointments were based on political favoritism rather than merit, in violation of La. Const. art. X, § 7.

         Hearing Examiner Jay Ginsberg held a four-day evidentiary hearing on the protests, and then issued a report concluding that the NOFD had complied with Civil Service rules in the promotion process. Thereafter, Civil Service Personnel Director Lisa Hudson, under her investigative authority, [1] reviewed the Hearing Examiner's report, the employees' appeal forms, the Commission's rules, the Louisiana Constitution, hearing transcripts, hearing exhibits, and the attorneys' post-hearing briefs. On November 30, 2017, the Personnel Director issued a 36-page report in which she identified 15 protesters who were improperly denied promotions because the NOFD selected candidates for promotion using a procedure that was not merit-based, in violation of Civil Service rules and the Louisiana Constitution. In her November 30, 2017 Order, the Personnel Director ordered the 15 protesters promoted to fire captain retroactive to September 2016. She concluded that the remaining 32 protesters were not entitled to a promotion. The Personnel Director also found that those firefighters who were unconstitutionally promoted to fire captain should remain in their positions.

         On December 14, 2017, the NOFD filed a "Notice of Appeal" of the Personnel Director's decision, asking the Commission to investigate the protests and review the Personnel Director's report. On December 15, 2017, the

         Firefighters filed a Motion to Dismiss the NOFD's Notice of Appeal on the grounds that Civil Service Rule VI, Section 6.1 does not authorize the NOFD to appeal the Personnel Director's decision. The NOFD filed an opposition to the Motion to Dismiss in which it argued that it was not seeking to appeal under Rule VI, Section 6.1, but that it was invoking the Commission's broad constitutional mandate under La. Const. art. X, § 10(B) to investigate any violations of Commission rules and Article X of the Constitution.

         On May 24, 2018, the Commission released its "Investigatory Findings and Order," in which it found that the protesters established a prima facie case that the NOFD's promotional decisions were not merit-based or competitive, in violation of La. Const. art. X, § 7, which provides as follows:

Permanent appointments and promotions in the classified state and city service shall be made only after certification by the appropriate department of civil service under a general system based upon merit, efficiency, fitness, and length of service, as ascertained by examination which, so far as practical, shall be competitive.

         The Commission, however, also concluded that it did not have the authority to order the NOFD to make these promotions, stating that its power was limited to ensuring that when the NOFD does make a promotion, it does so in a manner consistent with the Civil Service rules and Article X of the Constitution. ...


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