Appeals court says New Orleans Civic Commission has the power to order promotion of 15 city firefighters

By Karen Kidd | Jan 9, 2019

NEW ORLEANS – It now is up to the New Orleans Civil Service Commission to do what it said last spring it was powerless to do, order 15 city firefighters previously passed over for promotion receive the rank of captain.

The commission's "broad rule-making powers" granted by Louisiana's Constitution includes the power to order the New Orleans Fire Department to promote the firefighters, Louisiana Fourth Circuit Court of Appeal said in an opinion issued Dec. 27.

"We remand this matter with the instruction that the commission remedy the constitutional violations by ordering the promotion of the qualified applicants in accordance with this opinion," the appeals court said in the opinion.

Appeals Judge Sandra Cabrina Jenkins wrote the opinion in which Judges Roland L. Belsome and Paula A. Brown concurred.

The expedited appeal stemmed from protests filed by 47 New Orleans firefighters denied promotion to captain by the city's Fire Department Superintendent Timothy McConnell. In late May, the commission issued an investigatory finding that said the city fire department's promotional scheme violated the state's Constitution and also declared it lacked power to remedy that violation.

In his separate concurrence, Belsome said he agreed with the court's unanimous finding that the commission's failure to provide a remedy to the firefighters unlawfully passed over for promotion had been "arbitrary and capricious."

"In addition, I find that the commission's arbitrary and capricious failure to provide a remedy for the aggrieved firefighters resulted in a violation of their due process rights under the United States and Louisiana Constitutions," Belsome said.

The city also violated the state Constitution's civil service provisions when the fire department used a "not merit-based" procedure to select candidates for promotion, but the commission violated its own rules in finding it could do nothing about it, the opinion said.

The appeals court panel also noted that its finding that the civil service rules have been applied  "in an unconstitutional manner" could have wider implications for the city of New Orleans.

"We agree with the commission that such a finding may have wide-ranging implications and appointments across the city’s civil service system," the opinion said. "As a result, we affirm that part of the commission's May 24, 2018, order concluding that it was properly exercising its investigatory authority into alleged violations of the Louisiana Constitution."

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