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Hellmers v. Department of Fire

Court of Appeals of Louisiana, Fourth Circuit

October 30, 2019

PAUL HELLMERS, ET AL.
v.
DEPARTMENT OF FIRE

          APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS Nos. 8594, 8629, 8649, 8692

          Christina L. Carroll Louis L. Robein, III ROBEIN URANN SPENCER PICARD & CANGEMI, APLC COUNSEL FOR PLAINTIFF/APPELLEE

          Sunni J. LeBeouf CITY ATTORNEY Elizabeth Robins DEPUTY CITY ATTORNEY William R. H. Goforth Donesia D. Turner COUNSEL FOR DEFENDANT/APPELLANT

          (Court composed of Judge Terri F. Love, Judge Regina Bartholomew-Woods, Judge Paula A. Brown)

          PAULA A. BROWN JUDGE.

         Appellees, Jay Fielding, Paul Hellmers, Edward Poole, and Michael Salvaggio (collectively, the "Firefighters"), firefighters employed by Appellant, Department of Fire, City of New Orleans ("NOFD"), filed a protest with the personnel director (the "director") of the Civil Service Commission, City of New Orleans (the "Commission"), regarding NOFD's decision to not promote them to fire district chiefs. After evidentiary hearings[1] and submission of briefs by the parties, the director issued a decision on November 8, 2018, wherein the director ruled in favor of the Firefighters and promoted them to the positions of fire district chiefs. NOFD requested that the Commission investigate the director's decision. On February 7, 2019, the Commission denied the request. The NOFD filed a notice of intent to appeal the Commission's denial which was granted.

         We find, sua sponte, for the reasons discussed infra, that this Court lacks subject matter jurisdiction and dismiss the appeal.

         FACTUAL/PROCEDURAL HISTORY

         The Commission, as part of the Civil Service Department, City of New Orleans ("Civil Service Department"), governs the employees of NOFD. See Akins v. Hous. Auth. of New Orleans, 03-1086, p. 2 (La.App. 4 Cir. 9/10/03), 856 So.2d 1220, 1221 (citing La. Const. art. 10, §10(A)) (wherein this Court held "[i]t is well established in our jurisprudence that the Civil Service Commission has exclusive jurisdiction over classified civil service employer-employee disputes that are employment related.").

         Timothy McConnell serves as superintendent of the NOPD. In 2016, Superintendent McConnell requested from the Civil Service Department a list, from the previously administered 2011-2012 civil service test, of eligible candidates to fill five positions for fire district chief. There were eighteen candidates on the list ranging from bands 13-18.[2] Out of the eighteen, two of the candidates retired and one withdrew his name, leaving fifteen eligible candidates. As part of the process to be considered for the promotion, Superintendent McConnell required each candidate to submit a resume, and Superintendent McConnell along with three deputy superintendents interviewed the interested candidates. Five of the fifteen candidates were promoted. Four of the Firefighters that were not promoted protested NOFD's decision pursuant to City of New Orleans Civil Service Rules ("Civil Service Rules"), Rule VI, section 6.1, which provides:

If any qualified candidate or employee, whose name appears on a verified appointment or promotional list, believes that his appointment, allocation or promotion has been improperly denied, he may protest the denial of such by presenting such forms or documents as the Director may prescribe. The Director, or any person designated by him, may hold special hearings to determine the facts of each case and the Director shall make his decision on the basis of the written statements and forms presented by the employee and on the facts brought out in the hearing. The employee shall have the right to appeal to the Commission if dissatisfied with the action of the Director. (emphasis added).

         The Firefighters alleged that the promotional procedures utilized by NOFD were not competitive and not merit based, in violation of La. Const. art. 10, § 7, and Civil Service Rules, Rule VI, sections 2.1 and 3.1.[3]

         In accordance with Civil Service Rules, Rule VI, section 6.1, evidentiary hearings, administered by the hearing officer, were held and briefs were submitted by the parties. On November 8, 2018, the director issued a decision, finding that the NOFD's promotional decisions violated the La. Const. art. 10, §7, Civil Service Rules, Rule VI, sections 2.1[4] and 3.1[5], and the Firefighters' rights to due process.[6] In addition, the director set forth the remedy and promoted the Firefighters to fire district chiefs:

Because the Fire Superintendent promoted candidates on March 6, 2016, from lower bands than . . . Michael Salvaggio, he is ordered promoted retroactive to March 6, 2016. Because the Fire Superintendent promoted an additional candidate on May 15, 2016, from a lower band than . . . Paul Hellmers, Edward Poole, and Jay Fielding, they are ordered promoted retroactive to May 15, 2016. If this is not possible, then it is ordered that the individuals be promoted once vacancies become available and be compensated with the difference in salary retroactively from the dates they should have been promoted until they are actually promoted to remediate their respective losses.

         Thereafter, the Firefighters filed, with the Commission, a motion seeking to enforce the director's decision which was denied.[7]

         In turn, NOFD sought review of the director's decision, requesting the Commission to investigate the director's November 8, 2018 decision. See La. Const. art. 10, §10(B) ("Each commission may investigate violations of this Part and the rules, statutes, or ordinances adopted pursuant hereto."). Initially, the Commission deferred NOFD's request to investigate the director's November 8, 2018 decision to await this Court's decision in Achord v. Dep't of Fire, 18-0635 (La.App. 4 Cir. 12/27/18), ___So.3d ___, [8] writ denied, 19-0506 (La. 6/17/19), 274 So.3d 1261 ("Achord"). In Achord, qualified firefighters employed by the NOFD were initially denied promotions to fire captains by the NOFD. Pursuant to Civil Service Rules, Rule VI, section 6.1, the firefighters protested the decision to the director, and the director issued a decision wherein it found these firefighters were improperly denied promotions in violation of the Civil Service Rules and the Louisiana Constitution. The director recommended these firefighters be promoted to fire captains. NOFD requested the Commission to investigate the director's decision; the Commission granted the request and issued a decision which found NOFD improperly denied the promotions in violation of the Civil Service Rules and the Louisiana Constitution. However, the commission found it lacked authority to promote the firefighters to captains. The firefighters filed an appeal with this Court pertinently asserting two claims-NOFD did not have the right to "appeal" the director's decision to the Commission, and the Commission erred in failing to remedy NOFD's constitutional violations. As to the first claim, this Court held, in pertinent part:

The NOFD concedes that [Civil Service Rules, Rule, VI, ] section 6.1 does not authorize the NOFD to appeal the Personnel Director's decision. The NOFD points out, however, that La. Const. art. [10], § 10(B) grants the Commission the discretionary power to "investigate violations [of Article [10]] and the rules, statutes, or ordinances adopted pursuant hereto." According to the NOFD, the Commission properly exercised its constitutional authority to investigate the Firefighters' protests that the NOFD's promotions were not merit-based and competitive, as required by La. Const. art. [10], § 7. We agree. . . .

Id., 18-0635, pp. 6, ___So.3d at ___. As to the second claim, this Court reversed that part of the Commission's decision denying the firefighters a remedy and held that the Commission had the authority to order the promotions of the firefighters to the positions of fire captains. Id., 18-0635, pp. 11-12, ___So.3d at ___.

         Following the opinion in Achord, NOFD renewed its request to the Commission to investigate the director's November 8, 2018 decision. The Commission denied the request and issued a minute entry on February 7, 2019, which provided, in pertinent part:

After hearing arguments from the Parties, the Commission DENIED the Appointing Authority's [NOFD] request and chose not to exercise its discretionary authority to investigate the alleged constitutional violations ...

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