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Orazio v. Department of Police

Court of Appeals of Louisiana, Fourth Circuit

June 19, 2019

NORVEL ORAZIO, ET AL.
v.
DEPARTMENT OF POLICE, ET AL. NORVEL ORAZIO, ET AL.
v.
DEPARTMENT OF POLICE, ET AL.

          APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 7893

          Eric J. Hessler Raymond C. Burkart, Jr. THE LAW OFFICES OF RAYMOND C. BURKART, JR., L.L.C. COUNSEL FOR PLAINTIFFS/APPELLANTS

          Donesia D. Turner SENIOR CHIEF DEPUTY CITY ATTORNEY Elizabeth Robins DEPUTY CITY ATTORNEY Sunni J. LeBeouf CITY ATTORNEY, Brendan M. Greene EXECUTIVE COUNSEL CITY OF NEW ORLEANS CIVIL SERVICE COMMISSION COUNSEL FOR DEFENDANTS/APPELLEES

          Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Rosemary Ledet

          ROSEMARY LEDET JUDGE

         This is the third appeal in this civil service case. The factual and procedural background of this case is set forth in this court's two prior opinions-Orazio v. City of New Orleans, 12-0423 (La.App. 4 Cir. 1/16/13), 108 So.3d 284 ("Orazio 1"); and Orazio v. Dep 't of Police, 17-1035 (La.App. 4 Cir. 5/23/18), 248 So.3d 745 ("Orazio 2"). In this third appeal, [1] the plaintiffs-Norvel Orazio; Michael Glasser; Harry Mendoza; Rose Duryea; Frederick Morton; Jerome Laviolette; Raymond C. Burkart, Jr.; James Scott; Joseph Waguespack; Heather Kouts; William Ceravolo; Simon Hargrove; and Bruce Adams (collectively "Plaintiffs")-seek review of the following three rulings by the Civil Service Commission for the City of New Orleans (the "Commission"):

• An August 21, 2018 ruling approving the continuation of sixteen unclassified Commander positions in the New Orleans Police Department ("NOPD");[2]
• An August 27, 2018 ruling denying the demand for an examination for a classified Major position filed by the Police Association of New Orleans ("PANO") and three Captains, two of whom are Plaintiffs-Mr. Glasser and Mr. Waguespack; and
• A September 20, 2018 ruling denying Plaintiffs' motion for a status conference and an evidentiary hearing, stating that the matter was disposed of in Orazio 2[3]

         For the reasons that follow, we reverse the Commission's ruling approving the continuation of the sixteen unclassified Commander positions in the NOPD and affirm the Commission's other two rulings.

         FACTUAL BACKGROUND

         The thrust of the instant appeal is the appropriate classification of sixteen NOPD Commander positions-unclassified, as the NOPD's Superintendent requested and the Commission approved and reapproved; or classified, as the Plaintiffs contend. To place the issue in context requires a review of the development of the NOPD Commander position, including the three iterations of that position-(i) Colonel (classified); (ii) special rate of pay assignment (classified); and (iii) Commander (unclassified).

         Colonel (Classified)

         The first iteration was a request by then-Superintendent Ronal Serpas for a hybrid job position to be labeled "Colonel." Superintendent Serpas made this request in a letter, dated October 27, 2010, to the Civil Service Department's Director, Lisa Hudson. Superintendent Serpas acknowledged in his letter that his proposed Colonel position was similar to the existing classified position of Major.[4]

         The Civil Service Department ("CSD") expressed concerns regarding the creation of the Colonel position because it was unable to distinguish between the proposed Colonel position and the existing Major and Captain positions. Ultimately, the Superintendent's request for a Colonel position was not approved.

         Special Rate of Pay Assignment (Classified)

         The second iteration was a special rate of pay assignment, for which the NOPD created the working title of "Police Commander." In 2011, the Commission approved creating the special rate of pay assignment in lieu of the requested Colonel position. The special rate of pay assignment was, in essence, a temporary, special job assignment accompanied with a special rate of pay. These assignments were made at the Superintendent's discretion; the persons discharging the assignments were classified employees.

         Commander (Unclassified)

         The third, and final, iteration was an unclassified Commander position. In February 2017, then-Superintendent Harrison requested that the Commission approve sixteen unclassified Commander positions to replace the current special rate of pay assignments. The Commission approved this request in 2017 and reapproved it in 2018.

         PROCEDURAL BACKGROUND

         Challenging the Commission's approval of the special rate of pay assignment, Plaintiffs commenced this civil service case in July 2011. In their petition, Plaintiffs alleged that the special rate of pay assignment was a guise for the creation of an unclassified position. The gist of Plaintiffs' allegations was that the special rate of pay assignment deprived them of promotional opportunities and violated civil service principles. In their Petition, Plaintiffs requested the following relief:

• A Civil Service Commission Rule III, § 7 investigation into the police Commander position and an evidentiary and contradictory hearing before a Civil Service Commission hearing officer;

• The revocation, annulment, and dissolution of the Commander appointed position via the special rate of pay.

         The Commission dismissed Plaintiffs' petition. Plaintiffs appealed.

         This court, in Orazio 1, framed the issue presented as "whether the [Commission] was arbitrary and capricious when it denied the Plaintiffs an investigation and contradictory hearing relative to the creation of the police commander position." 12-0423, pp. 3-4, 108 So.3d at 287. We cited La. R.S. 33:2397(4)[5] and Civil Service Rule III, § 7.3[6] as providing the authority for the Commission to conduct an investigation and to hold an evidentiary hearing. We reasoned that an investigation coupled with an evidentiary hearing regarding the creation of the Commander position was required, observing that "[t]he record before us connotes the questionability of the classified or unclassified nature of the 'job assignment' or 'position'" and that "[a]n investigation would ensure . . . 'the integrity of the merit system' and protect an 'equitable relationship between positions in the classified and unclassified services.'" Id., 12-0423, p. 5, 108 So.3d at 287-88 (quoting Civil Service Rule III, § 7.3).

         On remand, the Commission scheduled an evidentiary hearing before a Hearing Examiner and ordered the CSD to conduct a job study and to investigate the NOPD's use of the commander special rate of pay rule associated with the special assignment of Commander.[7]

         Before the job study could be completed and the hearing held, then-Superintendent Harrison requested that the Commission approve sixteen unclassified Commander positions to replace the current special rate of pay assignments. In response, the CSD added to the scope of its job study, which was being conducted, the Superintendent's request for the creation of sixteen unclassified Commander positions.

         In April 2017, the results of the CSD's job study were presented to the Commission. At the meeting, the Commission added an executive session to its agenda to discuss the impact of the NOPD's request to create sixteen unclassified Commander positions on this court's remand order in Orazio 1. After concluding the executive session, the Commission approved the NOPD's request for the creation of sixteen unclassified Commander positions.[8] Plaintiffs appealed.

         This court, in Orazio 2, observed that although Plaintiffs raised multiple issues, the principal issue was whether the Commission's action of approving the creation of sixteen unclassified Commander positions exceed its constitutional and statutory authority. We observed that the Constitution authorizes the Commission to adopt its own rules regarding the adding and revoking of unclassified positions and that the statutory provisions grant the Commission discretionary authority. Affirming the Commission's ruling, we reasoned that the constitutional and statutory provisions, read together, authorize the Commission to create additional unclassified positions. We concluded that the Commission's action "align[ed] with its authority afforded by the constitution and the civil service rules" and affirmed. Orazio 2, 17-1035, p. 12, 248 So.3d at 752.

         Following our decision in Orazio 2, the results of the 2018 Audit were presented at the August 21, 2018 special meeting. After entertaining comment, the Commission approved the reauthorization of the sixteen unclassified Commander positions by a 4-to-1 vote.[9] This appeal followed.

         STANDARD ...


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