By Ramon Antonio Vargas
The Advocate
NEW ORLEANS — The New Orleans Fire Department ran afoul of the state constitution when it promoted dozens of firefighters to the rank of captain even though they ranked lower than many other eligible candidates on a promotion exam, the city’s Civil Service Commission said in a 33-page ruling issued Thursday.
But the ruling won’t help those who were passed over to climb the ranks, and it won’t strip the 41 who were promoted of their posts.
The commission said those who were elevated were eligible for promotions under current rules and didn’t get ahead through misconduct, meaning that demotions would be improper.
Meanwhile, the Fire Department is under no legal obligation to promote anyone, leaving those who were passed over virtually no recourse.
Neither side immediately responded to requests for comment about what may be next. The commission’s decision can be appealed to the state 4th Circuit Court of Appeal.
Parts of the five-member commission’s opinion echoed aspects of a report last year from city Personnel Director Lisa Hudson, which said the Fire Department’s handling of the promotions left the agency vulnerable to claims of political, if not racial, bias.
But only two commissioners, Ronald McClain and Clifton Moore, agreed with what was perhaps Hudson’s central recommendation: canceling the “Great Place to Work” initiative, a set of sweeping changes to the city’s personnel system that former Mayor Mitch Landrieu championed a couple of years before the promotions.
Chairwoman Michelle Craig and Commissioners Stephen Caputo and Tania Tetlow said the Fire Department simply applied the “Great Place to Work” rules unconstitutionally because the agency was unable to prove its promotions were competitive or merit-based.
The majority’s opinion blamed that largely on the commission itself, saying it had failed to ensure that agencies implementing the rules had sufficient safeguards in place to prevent promotions driven by factors other than merit.
The opinion suggested that the Fire Department and other agencies run any potential personnel policies by civil service officials before adopting them, though that’s not required.
The controversy began brewing when 120 of the 128 candidates who took the Fire Department’s exam to become a captain passed it in September 2016.
Old civil service system rules would have forced Fire Superintendent Tim McConnell to pick new captains from groupings of candidates who scored similarly, and he would not have been able to move onto other groupings until he exhausted all eligible candidates from the higher-scoring groups.
But the “Great Place to Work” rules were designed to give agencies more flexibility on promotions and hires, and McConnell believed he was empowered to pick any of the 120 candidates who passed the test.
Many of the candidates he chose for promotion ranked low on the list of candidates’ test scores, including one who scored 114th. That prompted 47 firefighters who were passed over to file Civil Service Commission appeals .
The Fire Department defended itself by saying the test scores were only one of 15 merit-based criteria considered for promotion. Others were training and disciplinary history.
But, in justifying the promotions, Fire Department officials were not able to say exactly why the promoted candidates were chosen over others, the commission said.
In fact, the Civil Service Commission said, the Fire Department could cite only one candidate who was promoted for a specific, job-related reason. He was a firefighter with paramedic training, said the Fire Department, which frequently handles medical-related calls.
Craig, in the majority opinion, said it was reasonable to expect the Fire Department and other agencies to be able “to articulate why some employees were promoted over others.”
“It sows distrust among all employees” when such agencies can’t do that, she wrote.
McClain and Moore disputed the notion that the Fire Department misapplied the “Great Place to Work” rules. They said the agency complied with “Great Place to Work,” which was the true problem, they said.
Hudson’s report also expressed concern over how reverse racial discrimination appeared to have driven some of the promotions. Almost half of the African-American candidates were promoted, compared to slightly more than a quarter of the white candidates.
Yet neither side addressed those claims during proceedings in front of the Civil Service Commission. The commission said it generally shared Hudson’s concerns, but it didn’t rule on whether the promotions constituted discrimination.
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