NORVEL ORAZIO, ET AL.
DEPARTMENT OF POLICE, ET AL. NORVEL ORAZIO, ET AL.
DEPARTMENT OF POLICE, ET AL.
FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 7893
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
composed of Chief Judge James F. McKay, III, Judge Edwin A.
Lombard, Judge Rosemary Ledet
ROSEMARY LEDET JUDGE
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,
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");
• 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
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.
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).
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
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
Rate of Pay Assignment (Classified)
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.
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.
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.
Commission dismissed Plaintiffs' petition. Plaintiffs
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) and Civil Service Rule III,
§ 7.3 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).
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.
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.
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. Plaintiffs appealed.
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.
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. This appeal followed.