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FIRE CAPTAIN PROMOTIONAL APPEALS

DANIEL PATTERSON
DANIEL STRICKLAND
BRETT HOPKINS
ASHLEY WOLFE
RYAN NEELY
BRANDON KRSAK
KENNETH PERDUE
MICHAELMARCELLO
DARREN CAMPBELL
STEVEN ACHORD
BRIAN MENDLESON
STEPHEN MAUTHE
SHANE BAILEY
JASON BANKSTON
DANIEL CERRONE
SHAWN COLIN

I. INTRODUCTION:

Civil Service Department
City of New Orleans

DOCKET NUMBERS

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JOSEPH FRANCIS
CRAIG HAYDEL
KENDRICK JONES
JUSTIN KLUMPP
JUSTIN KOENIG
JOSHUA KURUDA
BRIAN MCKEAN
ANDREW MONTEVERDE
TERRENCE MORRIS, 
DARRIN NAPOLITANO
ROY NEELY

PAUL PARNELL
EDWARD POOLE
MARK PORCHE, JR.
STEPHEN ROY
DENNIS SCHOOR, JR.

VERSUS

DEPARTMENT OF FIRE

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MICHAEL SCIORTINO, JR.
DOUGLAS SHANAHAN
DOMINIC SIGNORELLI
PAUL ST. JULIEN
JOHN VON HOVEN, JR.
DAVID WATKINS
RYAN WILLIAMSON
JASON MARTIN
JARED CARTER
JARED BAUDY

ZACK DOMILISE
CRAIG COLLIGAN
ROBERT WILTON
MATTHEW CHESTER
BRIAN SENNETT, SR.

The Civil Service Department received and processed the Fire Captain promotional

appeals of 47 firefighters protesting the Fire Superintendent?s denial of their promotion

pursuant to Civil Service Commission 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 [of Personnel] may
prescribe. The Director [of Personnel], or any person designated by him, may
hold special hearings to determine the facts of such case and the Director [01c
Personnel] 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 ofthe Director [of Personnel].

The appeals were assigned to a hearing officer to hold special hearings to determine the facts of
the case. These special hearings were held on March 22 -23, 2017 and on April 4-5, 2017. As a result of

those hearings, the hearing officer has provided the Personnel Director with a report.

The Personnel Director, utilizing her investigative authority, has reviewed the hearing officer?s
report along with the employee appeal forms, the Civil Service Commission?s Rules, the Louisiana State
Constitution, hearing transcripts, hearing exhibits, and the attorney?s post hearing briefs. Below is a

report of the Department?s findings and final determination in this matter.

II. FINDINGS:

Finding 1: The Civil Service Department established a competitive, ranked eligible list for Fire
Captain as a result of a valid examination in accordance with Civil Service Commission Rules,
the Uniform Guidelines an Employee Selection Procedures and the Louisiana State
Constitution:

In observance of Civil Service Commission Rule Vl, the Uniform Guidelines on Employee
Selection Procedures and the Louisiana State Constitution, the Civil Service Department created
a merit?based, competitive Fire Captain?s examination based on a job analysis of the rank of
Fire Captain.

According to the Civil Service Commission?s Rules, ?the purpose of Rule VI is to ensure the
efficient screening and assessment of applicants for promotion and appointment under a
general system based on merit, efficiency, fitness and length of service as ascertained by
examination which, so far as practical, shall be competitive.?

Further, Article Section 7 of the Louisiana State Constitution requires that,

"Permanent appointments and promotions in the classified state and city service shall be made
2

only after certification by the appropriate department of civil service under a general system
based upon merit, efficiency, fitness, and length of service, as ascertained by examination
which, so far as practical, shall be competitive.?

The Uniform Guidelines on Employee Selection Procedures (?the Uniform Guidelines?) apply
to federal, private, and public employers subject to Title VII of the Civil Rights Act of 1964.
According to the Equal Employment Opportunity Commission the purpose of the
Uniform Guidelines is to ?aid in the achievement of our nation's goal of equal employment
opportunity without discrimination on the grounds of race, color, sex, religion or national
origin. The Federal agencies have adopted the Uniform Guidelines to provide a uniform set of
principles governing use of employee selection procedures which is consistent with applicable
legal standards and validation standards generally accepted by the profession and
which the Government will apply in the discharge of its responsibilities.? Employers who follow
the Uniform Guidelines are more likely to provide a strong defense against claims of unlawful
discrimination.

In order to create a valid examination for Fire Captain, a trained with
over 30 years of experience in test development and validation performed a job analysis, which
consisted of a series of surveys and interviews of subject matter experts At the
request of the Civil Service Department, the Fire Administration provided a pool of thirty-three
SME (3D Captains and 3 District Chiefs), which represented a cross-section of the platoons and
of the assignments of Captains; were representative of the racial make?up of the classifications

represented; and were dependable and well-trusted.

 

1 
3

The job analysis produced 16 areas of knowledge, skills and abilities that made
up the job of Fire Captain. The examination content was then devised by the 
to measure those KSAs identified during the job analysis. The exam consisted of two parts: a
multiple choice exam (weighted 57%) and a scenario based job simulation (weighted In
advance of the exam, all candidates were provided with the KSAs to be measured in each
section of the exam, their weights toward the final score, and a definition of each KSA
(Appellants? Exhibit 2). A booklist was provided to all candidates in advance of the multiple
choice exam. All questions on the multiple choice exam were taken from material on the
booklist. Candidate orientation sessions were required for all candidates prior to the job
simulation. These orientation sessions provided information on what candidates could expect
to see on the job simulation.

Assessors were brought in from other fire jurisdictions to score the job simulation using
rating scales developed by the with SME input. Additionally, prior to making
their ratings, the assessors received a handbook and on-site training on areas including the job
analysis, KSAs and task list, techniques in behavioral observation, and how to avoid making
common rating errors.

Following the administration and scoring of the exam, a competitive, ranked eligible list
was established by Civil Service. Candidates were provided with their individual exam results.
They were also given an opportunity to attend an optional individual feedback session during
which they received a breakdown of their performance on each of the KSAs measured by the

exam. When asked during his testimony if he had objected to Civil Service about how the

eligible list had been compiled, Fire Superintendent Timothy McConnell responded that he did
not. (Tr. Vol. I at 18).

Finding 2: The Civil Service Department certified a competitive, ranked list of eligibles for Fire
Captain in accordance with Civil Service Commission Rules:

On April 20, 2016, the Civil Service Department certified a competitive, ranked list of eligible
candidates (?the list?) to the Fire Superintendent in accordance with Civil Service Commission Rules
(Appellants? Exhibit 4).

In August of 2014, certain provisions of the Civil Service Commission Rules were amended as
part of the "Great Place to Work? rules. Civil Service Commission Rule VI, 3.1 as amended under "Great

Place Work? states:

Upon a request from the appointing authority to fill a position other than by demotion,
transfer, or reinstatement, the Department shall provide to the appointing authority
the names of all candidates certified by the Department to meet the minimum
qualifications, to have passed the examination, if any, and met any selective
certification requirements requested by the appointing authority and approved by the
Personnel Director. The number of names to be certified shall not be less than three.
The Personnel Director may authorize an appointing authority to conduct examinations
and may establish policies for appointing authority administered examinations. Such
examinations shall be job?related and designed to assess applicants based on merit,
efficiency, fitness, and length of service.

Civil Service Commission Rule VI, 3.5 also amended under the "Great Place to Work? rule changes

states:

The eligibles certified shall be the highest ranking eligibles willing to accept employment, ranked
in the following order:

1. All the eligibles on the appropriate preferred reemployment list, if any;
2. All other eligibles.

Prior to the ?Great Place to Work? Rule amendments, Civil Service Commission Rule VI, 3.1 used a "Rule

of Three?:

Upon a request from an appointing authority to fill a position other than by demotion, transfer,
or reinstatement, the Director shall certify to the appointing authority the names of three
eligibles for such position of the class of the vacant position, and if more than one vacancy is to
be filled, the name of one additional eligible for each additional vacancy. in cases of demotion,
transfer or reinstatement, the Director shall approve or disapprove the name of the person
submitted by the appointing authority.

The former ?Rule of Three" rules mandated that a civil service position be filled by one
of the three individuals with the highest scores on the examination. In practice, the ?Rule of

Three? was often combined with the use of banding. Bands (score groups) were established
based on the properties of the exam score distribution or on job analysis information. All
scores falling within a given band were considered tied (former Civil Service Commission Rule V, Section
5.1). This gave appointing authorities more discretion by increasing the number of candidates that
could be considered for promotion. However, bands were never based upon a combination of exam
score and ?seniority? as suggested in the NOFD post-hearing briefing. Appointing authorities were
always able to consider other factors in addition to exam score such as seniority, prior work experience,
training, education, job performance, and discipline when determining or selecting who to promote
from a Civil Service list of eligibles. However, the "Rule of Three? in combination with banding restricted
the appointing authority to selecting from the top performers on the Civil Service examination before

reaching down on the list of ellgibles to select lower performers on the examination.

Currently, under the ?Great Place to Work,? 2 the Civil Service Department is required to present
a competitive list in order of examination score upon an appointing authority?s request. The Civil
Service Department met that requirement by providing a competitive list, based on a thorough job
analysis and examination process. However, the new "Great Place to Work? Civil Service Commission

Rules do not provide guidance regarding the selection of candidates from the list. Thus, the only

 

2 (New Civil Service Commission Rule Vl, 3.5 2017)
6

restrictions on the selection process would have to be gleaned from other provisions of the Civil Service
Commission Rules and from the Louisiana Constitution.

In this case, in an effort to fill 41 vacancies, the Fire Superintendent skipped over higher ranked
candidates and reached down to the bottom of the list. For example, the Fire Superintendent selected a

candidate ranked number 117 out of 120 eligible candidates on the list. The Fire Superintendent stated

in his testimony that he did not rely solely on the competitive exam rankings to make selections for

promotion. Instead, he asserted that he relied on 15 factors included in NOFD policy 
(Appellants? Exhibit 5) which was developed three months after the Civil Service Department released its

ranked, competitive list of eligible candidates for Fire Captain. (Tr. Vol. I at 25).

Finding 3: The Fire Superintendent established a selection process for promotion to Fire Captain that
was in violation of Civil Service Commission Rule VI, Section 2.1, 2.3 and 3.1:

The Fire Superintendent and the Civil Service Department worked together to establish the

following minimum qualifications for the position of Fire Captain:

(1) Permanent status as a Fire Apparatus Operator or Firefighter I and four
years and six months of experience with the New Orleans Fire Department in
any of the following classes: Fire Recruit, Firefighter i, Fire Apparatus
Operator or any combination thereof. TO BE CERTIFIED FOR PROMOTION:
one must have six (6) years of the above service; and

(2) Either the Certificate in Fire Protection Technology (FPTC) courses, or the
Associates Degree in Fire Protection Technology from Delgado
Community College. Associate Degrees, or higher, in a fire science
related field of study from a college or university that is accredited by a
regional accrediting agency may be substituted. Civil Service reserves
the right to determine the appropriateness of any proposed
substitution.

These qualifications were used to determine which applicants qualified to take the Fire Captain?s

examination. The Fire Superintendent did not provide the Civil Service staff and the applicants with any

other necessary or desirable qualifications at the time the job announcement was posted for the

position.

Instead, the Fire Superintendent in cooperation with his Deputy Superintendents created NOFD
Policy ADM-27 which contains his own policies and procedures for promotion to Fire Captain. NOFD
Policy ADM-27 clearly identifies a selection procedure; including creating a list of "desirable
qualifications? required to be eligible for promotion, and an examination process using an unstructured
oral interview. This was done without any consultation with Civil Service Staff.

Additionally, within this policy, section 8.1.3 lists fifteen (15) factors that the promotional
committee assessed to determine whether a candidate would be selected for a job interview and

whether a candidate would be recommended for promotion to Fire Captain.

The 15 factors are as follows:

8.1.3.1 Effective application of department's safety and
accountability procedures, and initiatives;

8.1.3.2 Support for and effective implementation ofthe
department's fire prevention strategies and initiatives;

8.1.3.3 Performance history;

8.1.3.4 Disciplinary history;

8.1.3.5 Education;

8.1.3.6 R?sum?;

8.1.3.7 Training;

8.1.3.8 Demonstrated leadership;
8.1.3.9 Interpersonal skills;

8.1.3.10 Problem-solvingskills;

8.1.3.11 Years of service;

8.1.3.12 Civil Service examination score;
8.1.3.13 Commendations, awards, recognition and accomplishments;

8

8.1.3.14 Relevant experience; and

8.1.3.15 Additional relevant considerations, including any additional
materials the candidates may wish to submit.

The Fire Superintendent?s use of selection procedure and its list of factors is a

violation of the Civil Service Commission Rules.

Civil Service Commission Rule VI, Section 2.1 Violated

 

By establishing NOFD Policy ADM-27, the Fire Superintendent violated Civil Service Commission
Rule Vl, Section 2.1 by adding desirable qualifications for appointment to the position of Fire Captain
beyond the minimum qualifications that had already been established for application. In order to
comply with Rule VI, 2.1, the Fire Chief should have provided ?desirable qualifications? to the Civil
Service staff much earlier in the process, and obtained approval from the Civil Service staff prior to
publicizing the vacancy. The procedure that must be followed is found within the section of Rule VI, 2.1

relative to submitting a requisition to fill a vacancy.

2.1 Whenever an appointing authority proposes to fill a vacancy in the classified service,
the appointing authority shall submit to the Department a statement showing the
position to be filled, the duties thereof, the necessary and desirable qualifications of
the person to be appointed thereto, and the proposed class, if known. The Department
shall approve or deny the position allocation within seven (7) days for existing
classifications and fifteen (15) days for new classifications, exclusive of Commission
approval. The Department shall announce each vacancy within thirty (30) days of an
approved allocation. The Department shall not withhold reasonable approval of the
request unless it can demonstrate that the request violates the principles of the merit
system. For the purposes of allocating positions to a class, the Department shall
interpret the existing classes broadly and in accordance with Rule Section 2.1,
including, when appropriate, waiving supervisory requirements and allowing a
department to leverage classes used by other departments for efficiency. If the
appointing authority and the Director disagree on the position's minimum qualifications
or the class allocation and are unable to resolve their disagreement, the issue may be
brought before the Commission for a decision. (Amended August 25, 2014, effective
September 1, 2014)

Appointing Authorities submit requisitions to fill vacancies, including promotions, to the Civil

Service Department. Civil Service approves the allocation, attaches the appropriate eligible list, if

9

available, and sends it back to the requesting appointing authority. If, however, there is no list available,
then Civil Service will contact the appointing authority about opening a job announcement based upon
the minimum qualification listed in the job specification. The appointing authority will review the
established minimum qualifications and recommend any changes or ?desirable qualifications? to Civil
Service. Civil Service staff will work with the department on these minimum qualifications until an
agreement can be reached. In this case, the agreement regarding the minimum qualifications was

reached before the requisition process occurred.

After receiving a list of eligible candidates from the Civil Service Department by e-mail on April
20, 2016 (Appellants? Exhibit 4). the Fire Superintendent subsequently added ?desirable
qualifications? necessary to be eligible for promotion. Merriam Webster?s dictionary defines
"qualifications? as any knowledge, skill or ability that makes someone suitable for a particular job or
position. NOFD Policy ADM-27 provides a list of factors including education, training, experience and
skills which will be assessed by a promotional committee to determine if someone is suitable for a
promotion to Fire Captain. The Fire Superintendent created additional qualifications along with a new
examination process to determine who to select from the Civil Service Department?s established ranked
list of eligibles. These new ?desirable qualifications? were not provided to Civil Service in keeping with
Rule VI, Section 2.1 and were not shared with the candidates until on or after July 26, 2016, three

months after the official list of eligibles was published by Civil Service.

The requisitions to fill the 41 vacancies were submitted in September of 2016, after the Fire
Superintendent?s selection process, guided by Policy ADM-27, had been executed. At that time, the Fire
Superintendent already knew who he wanted to promote. There was no need for the Fire
Superintendent to include ?desirable qualifications? on the requisition at this point in the appointment

process in keeping with Rule VI, Section 2.1. The additional ?desirable qualifications? listed in the policy

10

were established prior to the requisitions being submitted to the Civil Service Department for approval.
The Civil Service Department will assume that appointing authorities will use the minimum qualifications
and examination process that is established by Civil Service in order to make a selection from a
competitive eligible list unless otherwise informed by the appointing authority. In this case, the Civil
Service Department was not informed of the secondary examination process established by the Fire

Superintendent.

Civil Service Commission Rule VI, Section 2.3 Violated

In addition, in cases such as this, where desirable qualifications are requested after a
certification (list of eligibles) is established, the appointing authority may ask for ?selective certification.?
The Civil Service Commission Rules define "Selective Certification? as "certification to an appointing
authority by the Department (of Civil Service) of a list of names of persons who have been specifically
selected from an appropriate employment list because of their possession of certain necessary and

specified qualifications.? Rule VI, Section 2.3 provides for the following:

When an appointing authority has specified special necessary or desirable qualifications of
candidates, the Director shall certify from a list of eiigibles having such qualifications, if the
Director deems that the request has offered satisfactory evidence that the nature of the
position to be filled warrants such certification.

1

The Personnel Director never received a request to consider any additional "desirable qualifications?
in keeping with Rule VI, Sections 2.1 or 2.3. Ifthe Fire Superintendent had followed any of these rules,
the Civil Service Department would have been aware of the new NOFD Policy ADM 27 and could have

reviewed and approved the process before it was used to make selection decisions.

Civil Service Commission Rule VI, Section 3.1 Violated

Finally, as mentioned earlier, the Civil Service staff believes that NOFD policy ADM-27 clearly

identifies an examination process using an unstructured oral interview. During Superintendent

11

McConnell?s testimony, he referred to the interview as an exam and explained the reasoning for keeping the
exam questions confidential, stating, "We asked everyone that participated in this process to sign a
confidentiality agreement to try and maintain the integrity of the exam as much as possible.? (Tr.
Vol. I at 30).

This examination process was never reviewed or authorized by the Personnel Director as required

by Civil Service Commission?s Rule Vi, Section 3.1:

The Personnel Director may authorize an appointing authority to conduct examinations and may
establish policies for appointing authority administered examinations. Such examinations shall
be job-related and designed to assess applicants based on merit, efficiency, fitness, and length

of service.

While this Rule allows an appointing authority to conduct an examination, it must be authorized by
the Personnel Director. Civil Service Commission Rule I, Number 37 defines ?examination? as "any
formal assessment or combination of assessments used to evaluate an applicant?s qualifications,
licenses, certificates and job-related experience. Examinations include but are not limited to tests,
experience and training evaluations, minimum qualifications, r?sum? evaluations and structured oral
interviews, and job interviews.? Based on the Fire Superintendent?s application of NOFD ADM-27, the
Fire Superintendent conducted r?sum? evaluations based on the 15 factor criteria and unstructured oral
interviews before making any final promotional decision. However, the Fire Superintendent did not
seek input or receive approval of NOFD Policy or any of the selection procedures or
examination processes contained within from the Personnel Director and therefore did not receive
approval for the use of this appointing authority administered examination, which clearly violates Rule

VI, Section 3.1.

12

Finding 4: The selection procedures contained within NOFD Policy Adm-27 were not in accordance
with the Uniform Guidelines on Employee Selection Procedures:

As part ofthe promotional process, the New Orleans Fire Superintendent conducted r?sum?
evaluations and unstructured oral interviews based on 15 factors outlined in NOFD Policy Adm-27. After
reviewing the list of 15 factors and the oral interview process, and reviewing testimony regarding the
development and use of these factors and the interview process, it does not appear that the Fire
Superintendent?s selection process listed in Adm-27 was established in accordance with the Uniform
Guidelines on Employment Selection Procedures. The Uniform Guidelines, which provide standards for
the proper use and validation of employment testing, "apply to tests and other selection procedures
which are used as a basis for making employment decisions.? Section 1607.2 B. These employment
decisions may include decisions relative to hiring, promotion, demotion, training, transfers and
retention. According to the Guidelines, "all employers are encouraged to use selection procedures
which are valid, especially those employers operating under merit principles. Id Section (1.6.
Selection procedures, as defined by the Uniform Guidelines, "include the full range of assessment
techniques, including written exams, performance tests, training programs, probationary periods,
interviews, reviews of experience or education, work samples, and physical requirements.? Id Section I,
Q6

There is no evidence to support the Fire Superintendent validated his examination and selection
process by conducting a job analysis to identify the necessary knowledge, skills or abilities required for
the job or promotion. While the Civil Service staff had conducted such a job analysis of the Fire Captain
position, the Fire Superintendent did not request that information, and the Civil Service staff did not
review the Fire Superintendent's examination or selection process. in addition, there is no evidence to
support that the Fire Superintendent conducted either a content or criterion-related validation study

required to determine the validity of his examination or selection process.

13

To demonstrate the content validity of a selection procedure, a user should show that the
behavior(s) measured in the selection procedure are a representative sample of the behavior(s) of the
job in question. In the case of a selection procedure measuring a knowledge, skill, or ability, the
knowledge, skill, or ability being measured should be ?operationally defined.? Operational definitions
provide a clear, unambiguous, detailed description of the characteristic or attribute being
measured; ensure that assessors have the same understanding of the work related behavior,
knowledge skill or ability being measured; and establish a consistent rating system for all raters to
follow. To prevent erroneous ratings that often occur when those completing the ratings have different
views of what they are rating, the need for operational definitions is fundamental when collecting data,
and thus is particularly important when a hiring or promotional decision is being made. In addition, to
ensure consistency between multiple raters, the selection procedure should be scored under

standardized conditions using a pre-determined scoring system that differentiates performance.

Below is a chart ofthe 15 factors used by the Fire Superintendent and Deputy Superintendents
to rate promotional candidates during the evaluation process. Because the factors lack operational
definitions, it is difficult to determine what is being measured by each factor. Complicating
matters further, the Fire Superintendent failed to articulate during testimony how each factor
was assessed. For example, when asked about the specific factors that made candidate Ryan

I

Bailey an attractive candidate, Superintendent McConnell responded, "None in particular. It 5
simply like I said (sic) considered all 15 factors and chose a candidate for interviews for
promotion? (Tr. Vol. lat 91). This lack of a standard ?ruler? often leads to ratings that are
unreliable and lead to candidates being assessed inconsistently. That is, without a standard
scoring system, today?s inch could be tomorrow?s foot; and two candidates with true

differences may be erroneously considered as equal. Issues that should have been considered

when creating the rating factors and associated scoring procedures, and the potential overlap
14

 

between factors caused by the lack of operational definitions, are noted in the chart below for

each factor.

 

NOFD Policy ADM-27
Factors

Issues to consider when creating operational definitions and/or standardized
scoring system

 

1. Effective application
of department?s safety
and accountability
procedures, and
initiatives

How was ?effective application? assessed?
Number of safety violations? Number of accidents? Number of completed safety
reports? Over what time period?

 

2. Support for and
effective
implementation of the
department?s fire
prevention strategies
and initiatives

How is ?support? defined, and how was it rated? Was rating based on future
oriented interview question, or was the rating based on their past behavior with
prevention strategies? Were points deducted if the applicant made
comments against such initiatives?

 

3. Performance history

What performance history was rated? Number of fire calls? Number of years of
service with Number of work absences? Did this include measure of
leadership both at firehouse and on scene? Did you rely on Performance
Evaluations (Service Ratings) to compare employees? (Note: 97% of all the
employees rated in NOFD had an Outstanding rating in 2016.)

 

4. Disciplinary history

What kind of discipline was included? Was rating based on number of disciplinary
actions, severity of actions, or both?

 

5. Education

What type of education was rated beyond that required by the minimum
qualifications? Was additional credited education job related? Was specific
education related to the job given more credit than non-related education?

 

6. R?sum?

What exactly was rated in the r?sum?? Was it performance history, education,
relevant experience, and/or training? If so, this factor is not contributing any
additional information as this information is assessed in other factors.

 

7. Training

What type of training was included?

Did this include the number of completed job related training courses, and if so,
which courses qualified? If training covered job knowledge what specific
knowledge did the training impart?

 

8. Demonstrated
leadership

How was this assessed? Through the applicant?s work history or a situational
structured oral interview question? What metrics were used for rating? What
leadership skills were being assessed - following the incident command system,
coordinating and allocating resources, delegation and follow?up, mentoring of
subordinates?

 

9. Interpersonal Skills

How was this assessed? Through the applicant?s work history or a situational
structured oral interview question? What metrics were used for rating?

 

10. Problem?solving
skills

HOW was this assessed? Through the applicant?s work history or a situational
structured oral interview? What metrics were used for rating?

 

11. Years of service

 

Does this only include years of service with Were years of service with
another fire department included? Were the actual years counted or was there a
categorical rating?

 

15

 

 

12. Civil Service
examination score

How was this rated? Was overall score used in final rating?

 

13. Commendations,
awards, recognitions,
and accomplishments

What type of commendation and awards were considered? What defines
recognition or an accomplishment? How was the standardized rating
established? Was it based on the number of commendations or rewards or the
content of those items?

Are these also rated under the under the "Resume? factor?

 

14. Relevant
expenence

How was relevant defined? Was this experience with NOFD only? If so, how is
this different than Performance history, training, and years of experience? Was
relevant experience considered as experience beyond the minimum
qualifications?

 

15. Additional relevant
considerations,
including any
additional materials
the candidates may
wish to submit

 

Was onlyjob related additional information considered during the rating?
Without prior knowledge of what type of information candidates would submit,
how was the standardized rating established? Was it based on the number of
items submitted, or the content of those items?

 

 

In addition to the issues noted above, the factors appear to be differentially weighted

even though that was not, according to testimony, the intention. Deputy Superintendent

Eiserloh provided testimony that the 15 factors were weighted equally (Tr. Vol. I at 144?145),

but the policy does not provide any standard to the candidates regarding the weight awarded

to each factor in the list. For example, r?sum? is sixth on the list of factors to be considered. Any

evaluation of a candidate?s r?sum? would include an evaluation of a candidates experience,

education and training. However, education, training and experience are listed as separate

factors to be considered and weighted equally with the r?sum?. If in fact the r?sum? factor

was also a measure of education, training, and experience, then those three factors, because

of their multiple measures within the evaluation process, are actually given more weight than

those factors that were measured only once. Again, there is uncertainty as to how factors were

defined and measured, both individually and/or as part of the r?sum?, and then given equal

weighting.

16

 

As mentioned earlier, NOFD testimony failed to indicate that the Fire Superintendent?s oral
interview examination process was validated. NOFD Policy Adm-27 provides for each candidate to
be assessed based on the 15 factors during an interview by a promotional committee. The
policy does not describe the promotional committee?s type of interview process to be
conducted. While best practice is to conduct a structured oral interview process, where each
candidate is given the same set of interview questions and their responses evaluated with a
pre?determined scoring system that differentiates performance, it appears that the promotional
committee?s oral interviews were "unstructured? for the following reasons. First, there is no
way to tell if the same questions were asked to all the candidates as the minutes from the
interviews only contained basic information regarding the date and time of the interviews
(Appellants? Exhibit 9). There is no documentation of a standardized evaluation form used on
each candidate. There is no indication that scales were developed to assess candidate
responses in a fair and consistent manner. In fact, Superintendent McConnell testified that,
?Most of the questions, as a matter of fact every question, i started off the process by telling them there
was no right or wrong answer to any ofthe questions. It was more about their thought process.? (Tr.

Vol. at 41).

When asked for a copy of the promotional committee?s questions used during the
interviews, the Fire Superintendent declined to provide a copy because the interview
questions could be used again in another selection process. Therefore the Civil Service
Department does not have an official copy of the interview questions to provide an
assessment. Additionally, Deputy Superintendent Roman Nelson testified the Fire
Superintendent and Deputy Superintendents had considered devising a scoring system early

on but were unable to decide how much weight to give each factor. (Tr. Vol. lat 176).

17

The lack of standardization is furthered by the Fire Superintendent?s failure to interview
all candidates on the list. Deputy Superintendent Roman Nelson testified that decisions were,
?Based on their r?sum?, theirjob performance, their history, and their performance in the
interview.? (Tr. Vol. I at 174-175). He noted that, ?we looked at all 15 factors and that?s how
we decided who would be promoted.? (Tr. Vol. I at 174-175). If interview responses were used
in calculating a candidate?s score on the 15 factors, then one must ask what score a candidate
who was not interviewed received on the factors covered by the interview. Additionally, it is
not clear how it was determined who would be interviewed and who would not. It again

appears that all candidates were not measured using the same ruler.

Finally, while minutes were kept of each interview, very little information is provided that
explains how the candidates were assessed by each member of the promotional committee. NOFD did
not produce the applicant scores on any of the 15 factors, or even overall evaluation ratings in support
of their promotional selections. Without this written record, which would include details regarding
candidate responses and interviewer evaluations, there is no way to determine if the process was fair,
consistent and in keeping with the Uniform Guidelines. There is no documentation to support why the
Fire Superintendent reached down and selected a candidate ranked number 98 on the competitive
eligible list instead of a candidate ranked number 3 on that list.

Finding 5: Based upon the application of ADM-27, the ranked competitive promotional list established

as a result of the merit based, competitive examination functioned as a non-competitive promotional
list where rankings had. little to no meaning:

Based upon the Civil Service Commission Rules, the Personnel Director may give competitive or
non-competitive examinations. Competitive examinations are required by the Civil Service Commission
Rules unless one of the following conditions under Rule V, Section 8.1 relative to Non-Competitive

Examination is met: (Note: list is abbreviated)

18

 The class of work is defined by the Personnel Director as a minimum skills position requiring
minimal verbal or clerical skill for proper performance of duties.

The class of work requires highly specialized professional or technical training which can be
demonstrated by the possession of related certificates.

Promotional examinations where the appointing authority requests a non-competitive
examination for reasons that experience in a particular division of the department is a necessity
for competence in a position.

In classes of work approved by the Commission where competitive examinations are
impracticable.

None of these conditions were met for the Fire Captain examination. When the Civil Service
Department establishes a non?competitive list of eligibles, there is no ranking of the candidates on the
list by score. Every candidate on the list is considered to have passed the examination and all candidates
are considered equal on the list. For purposes of selection, the appointing authority is permitted to
appoint anyone on the list.

Unlike non-competitive examinations, competitive examinations are ranked by score based
upon examination results with the highest performers ranked before the lowest performers. However,
for selection purposes, the Great Place to Work Rule amendments, which fails to provide guidance on
the use of the ranked, competitive lists, arguably gives the appointing authority permission to appoint
anyone on the list regardless of score.

In this particular case, the Fire Superintendent listed the competitive examination score as one
of 15 equally weighted factors that would assist in determining who to select from the list of eligibles.
When the Fire Superintendent selected the 117th ranked candidate to fill one of the 41 vacant Fire
Captain positions, he presented no specific rational as to why that candidate was better suited to fill the
vacancy as opposed to the other 73 candidates who scored higher than that candidate. Since there were
only 41 vacancies, if the list had been used competitively, than the first 41 individuals ranked on the list
would have been considered first for the 41 vacancies unless the department could demonstrate why
those candidates were not fit for the position. However, the Civil Service examination score became

irrelevant, all the candidates on the list were treated as equals and the Fire Superintendent used a less

19

fair, valid and transparent method to make his selection decisions.

FindingG: The Civil Service Staff does not agree that the "score results as reported by Civil Service are
subjective and indicate a modest score differential among those who passed the oral exam:"

The Law Department?s argument regarding the Fire Captain promotional appeals is that there
exists a ?modest score differential among those who passed the oral exam 8 of 15 Section Iii).? In
this section, the Law Department further claimed: ?Moreover, review of the reported results of the oral
exam by Civil Service indicates two important issues: (1) that critical information for evaluating the
results was missing, by C5 failure to identify the number for a perfect score on the oral exam; and (2) a
fairly modest percentage di??erential existed between the candidates who passed the oral exam.
Analysis of the test results is best understood by looking at the results for the written multiple choice
exam, for which a perfect score was 100. For example, if someone gets a 100 on the multiple choice test
and another gets a 70, there is a 30 point and 30% differential in their scores. However, if the perfect
score is 1000, and we have the same 30 point difference, i. one scores 1000, and one scores 970, the

percentage differential in the scores is only 

Regarding the first of the two issues cited above, the tests used by Civil Service are norm-
referenced. Norm-referenced testing estimates the relative position of candidates in a candidate pool
with respect to the knowledges, skills and abilities being measured. In such context, the calculation of
a perfect score is not informative. The important comparison when using norm?referenced testing is
how candidates do in comparison with the others who also took the test, not how they performed
compared to an ideal. In keeping with a competitive promotional process, comparisons among those
competing are paramount. With competitive testing, the rank order of those competing is vital
information. With a professionally?developed, valid test there is a positive correlation between test

score and performance on the job. Therefore, those whose test scores are the highest ranking are

20

predicted to perform better on the job than those who rank lower. For example, those who scored
higher on a test and are promoted would be more likely to have better performance evaluations than
those who scored lower on the test and were promoted.

The second of the two issues cited makes a conclusion based on an irrelevant example. The
example shows that, depending on the scale in question, a static point differential may, or may not, be
meaningful. Indeed, the scale of the Fire Captain promotional test is much larger than a standard 100
point scale that would be used in criterion-referenced testing in an educational setting. Thus, a 10
point differential on a 100 point scale would clearly be more meaningful than a 10 point differential on
a 1000 point scale. The use ofthis example, however, does not support the conclusion that there is a
fairly modest differential between those passing the test. To the contrary, the difference between the
top scores and the passing score is quite substantial.

One way to look at this question is to consider the actual scores. The cut off score was 881;
the average score was 1000; the highest obtained score was 1,171; and 120 of 128 passed the test
(Appellants? Exhibit 8). Thus the range between the highest score and passing score is 290 points. The
passing score is about 75% that of the highest obtained score. Also, 93.75% of those taking the test
passed. Thus, the Law Department?s argument would seem to be that there are not meaningful
differences among the top 93.75% of the test takers they all did about the same on the test, despite
290 points difference in test scores.

A second way to look at this question is to consider whether there is a statistical difference
between scores. Prior to the Great Place to Work Rule changes, Civil Service reported this information
by use of band numbers. The ?bands? of test scores represented test scores that were statistically
different from one another. Banding allows one to say with 90 95% confidence that scores within the
band are the same, statistically speaking. It uses characteristics of the test such as the standard
deviation, reliability, standard error of measurement, standard error of the difference and confidence

21

intervals. As these test characteristics vary with each test, so also does the width of the score band. If
the Fire Captain exam results had been banded, 20 bands of statistically different scores would have
resulted.

In fact, at no time in the 30 plus years of banding eligible lists has Civil Service produce a list in
which there was no statistical difference between passing scores. For the 2009 Fire Captain test given
prior to the Great Place to Work Rule changes, the range of passing scores was between 955 and 1143
(188 points). In this range of scores, 12 statistically separate bands were developed. For the 2011 Fire
District Chief test the scores ranged from 891-1163 and 18 statistically bands were developed.
Therefore, the conclusion that there are not meaningful differences between test scores on the current
test is not supported.

Finding 7: Evaluation of Selection Rates:

As noted in the Hearing Examiner?s report, the Fire Superintendent selected 10 candidates for
promotion on September 15, 2016 and an additional 31 candidates on September 30, 2016. The Fire
Superintendent testified that these 41 candidates were selected for appointment based upon the
procedures contained within promotional policy NOFD ADM 27. (Tr. Vol. 1 at 25). in keeping with the
Uniform Guidelines, the Civil Service Department conducted an adverse impact analysis on these

selection results.

The following is a racial breakdown of the total group of candidates who passed the examination:

White 66%
African American 30%

Hispanic 1%
Asian 2%
Native American 1%
Not Specified 1%
Total 100%

 

The following table provides the percentages for those candidates actually selected (promoted):

  

 

 

 

 

as fu?iagce 
White 22 54%
African American 17 41%
Native American 1 1%
Not Specified 1 1%
Total 41 100%

 

 

 

Selection Rate for Whites 22/ 79: 27.85%

Selection Rate for African Americans 17/36 47.22%

Adverse impact is described by the Uniform Guidelines as "a selection rate for any race, sex, or
ethnic group which is less than four-fifths (or eighty percent) of the rate for the group with the
highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse
impact, while a greater than four-fifths rate will generally not be regarded by Federal enforcement
agencies as evidence of adverse impact." in this case, the selection rate of the protected group
(African Americans) was significantly higher than the required 80% ofthe selection rate of the non-
protected group. The analysis actually resulted in the inverse of the 4/5th rule of thumb (?reverse
discrimination?); the selection rate for Whites, the non-protected group, is 59% 
that of African Americans, the protected group. 59% is much less than the 80% standard required by

the Uniform Guidelines.

Almost half of the African?American candidates were promoted - compared to a little more than

a quarter of the white candidates. Thus, a candidate?s chances of getting promoted were almost twice

23

as good if a candidate were African-American. Based upon this analysis, it seems likely that race may

. . . 3
have been a factor in who received a promotion.

In addition, the Civil Service Staff suspects that gender was also a factor as both of the eligible
female candidates were promoted regardless oftheir placement on the register. Adverse Impact
analysis was not performed based upon gender since females represented less than 2% of the applicant

pool.

While the goal of a more representative Fire Department is a noble one, achieving it by
excluding some candidates from promotional opportunities based upon race, without a reasonable
justification, is problematic. In this case, there could be a presumption of reverse discrimination and no

evidence of a validated selection device is provided by the Fire Superintendent.

Finding 8: The Civil Service Department does not agree with the City?s argument that the Civil Service
Department?s approval of requisitions means that Complied with Rule VI, Section 

Civil Service Commission Rule VI, Section 2.1 provides for the following:

2.1 Whenever an appointing authority proposes to fill a vacancy in the classified service,
the appointing authority shall submit to the Department a statement showing the
position to be filled, the duties thereof, the necessary and desirable qualifications of the
person to be appointed thereto, and the proposed class, if known. The Department shall
approve or deny the position allocation within seven (7) days for existing classifications
and fifteen (15) days for new classifications, exclusive of Commission approval. The
Department shall announce each vacancy within thirty (30) days of an approved
allocation. The Department shall not withhold reasonable approval of the request unless
it can demonstrate that the request violates the principles of the merit system. For the
purposes of allocating positions to a class, the Department shall interpret the existing

 

3 in keeping with the Uniform Guidelines, an analysis of the other races was not performed
because the other races did not constitute at least 2% of the candidate pool.

24

classes broadly and in accordance with Rule Section 2.1, including, when appropriate,
waiving supervisory requirements and allowing a department to leverage classes used
by other departments for efficiency. If the appointing authority and the Director
disagree on the position's minimum qualifications or the class allocation and are unable
to resolve their disagreement, the issue may be brought before the Commission for a
decision. (amended August 25, 2014, effective September 1, 2014)

This rule as cited above is related to position allocation which is a responsibility of the
Classification and Compensation Division of the Civil Service Department. in order to fill a vacancy,
departments are required to submit a requisition which includes a class title, type of appointment,
description of the work to be performed, salary and desirable qualifications to the Classification and
Compensation Division. This division reviews the requisition to determine whether the proposed
classification is appropriate for the type of work being performed. If the requisition is approved by this
division, it is then submitted to the Certification Division of Recruitment. This unit will attach a list of
eligibles to the requisition based upon the job class and send it back to the requesting department to
make an appointment. When the requesting department makes a selection, the requisition will be
returned to the Certification Division for review. In this case, the Certification Division reviewed the
appointment in accordance with Rule VI, Section 3.1. However, unlike the former requirement ofthis
Rule, appointing authorities were no longer limited to considering the top three candidates for
appointment. The Great Place to Work rule revisions do not provide any procedure regarding selection
and therefore, appointing authorities are able to select any candidate on the list who passed the
examination regardless of score. The Certification Division performing a relatively ministerial duty of
review would necessarily have to approve the selection if the candidate was on the eligible list. The Civil

Service Department and the Certification Division were not informed of ADM-27 or any requirements

under this policy at the time the department submitted requisitions to fill the 41 vacancies.

Finding 9: Superintendent McConnell?s Promotion Decisions Violate the Louisiana Constitutional
Provision Requiring Merit- Based Promotions:

25

Jurisdiction over constitutional claims:

The Civil Service Commission has exclusive jurisdiction over classified civil service employer-

employee disputes that are employment related, including discrimination claims. 4

While the Commission cannotjudge the constitutionality or equity of its own rules since that is a
function of the courts; that restriction does not apply, when an employee complains that the
implementation of a rule is discriminatory.? 5 Accordingly, this would extend to other allegations
regarding the constitutionality of the Civil Service Commission Rules for the City of New Orleans as

appHed.

In this case, the appeals are based upon employment decisions, and claims that the Civil Service
Commission Rules were not fairly applied or merit-based. This would be in contravention of the
Louisiana Constitution, which requires that, ?[p]ermanent appointments and promotions in the
classified state and city service shall be made only after certification by the appropriate department of
civil service under a general system based upon merit, efficiency, fitness, and length of service, as

ascertained by examination which, so far as practical, shall be competitive.? Article Section7. Thus,

 

4Akins v. Housing Authority of New Orleans, 856 So.2d 1220 (La. App. 4 Cir. 9/10/03), 856 So.2d
1220, writ denied, 2003-2781 861 So.2d 574. Flanagan v. Department of Environmental

Quality, 99?1332 at pp.4-6, 747 So.2d at 765?66.

5 La. Const. Art. sec 1; Beauclaire v. Greenhouse 05-75 (La. 2/22/06); 922 So. 2d 501; Williams

v. Civil Service Comm?n of City of New Orleans, 613 So.2d 733, 735 (La. App 4 Cir 1993).

26

Civil Service has the power to review whether the Civil Service Commission Rules are constitutional as
appHed.

in addition, although discrimination was not expressly raised, the data shows that race may
have been a factor in the decision-making process. The Louisiana Constitution protects specifically
against race-based discrimination. The Civil Service Commission Rules do not specifically define the
term ?discrimination." The Civil Service Commission Rules do however, reference discrimination under
Rule II, which governs appeals of disciplinary actions and hiring. Rule ll establishes the procedure for
employees to follow where they believe they have been discriminated against on the basis of political or
religious beliefs, sex, race, age, disability or sexual orientation. Moreover, the Louisiana State Civil
Service Rule 1.14.1, defines discrimination as the "consideration of religious or political beliefs, sex, race
or any other non-merit factors." While the state rules are not binding, they are also instructive.
Accordingly, the Civil Service Commission Rules protect against race-based discrimination, and arguably
against merit-based discrimination. Additionally, due process violations are an issue. Because this case
raises issues of promotion based on unconstitutional use of non?merit based factors, race-based
discrimination, and due process violations, Civil Service has jurisdiction over claims that the law is

unconstitutional as applied.

Constitutionality of Great Place to Work and use of Non?Merit Factors:

Although the procedure of using a Rule of Three and Banding is no longer explicitly contained in
the Civil Service Rules, the requirements of fairness, competitiveness, and merit remain enshrined in the
Civil Service Commission Rules and it is, of course, an integral part of the Louisiana Constitutional

provisions pertaining to Civil Service Rules.

The Louisiana Constitution requires that "promotions in the classified state and city service shall

be made only after certification by the appropriate department of civil service under a general system

27

based upon merit, efficiency, fitness, and length of service, as ascertained by examination which, so far
as practical, shall be competitive.? (Art. Moreover, the Civil Service Rules "embrace the merit
system, and their intent is to preclude favoritism.? 6 in this case, there is convincing evidence that the
Superintendent?s decisions were based on non-merit factors. Thus, the Great Place to Work
Amendments that remove the procedural requirements of banding and the Rule of Three are

unconstitutional as applied.

In this case, the Superintendent selected candidates without regard to their ranked order,
choosing for example a candidate ranked number 117 in scoring over a candidate ranked number 3.
The record shows that the Superintendent was unable to articulate valid reasons for not using the list in
the order of candidates. For example, the Superintendent testified that he devised his own 15 factors to
select candidates, but could not articulate during testimony as to how each factor was assessed.
Moreover, the choices were seemingly random. Had he picked 35 from the top 41 on the list and then
reached down a bit for the additional candidates for well-articulated reasons, that might suggest a more
cohesive plan, and might show that the selections were merit?based. But by selecting candidates in a
seemingly arbitrary manner, with no well-articulated or well?supported reasons for the selections, it
appears that the selection was not based on merit but other unknown factors, which might include race
and political beliefs. The Great Place to Work amendments, as applied, are discriminatory, because in
this case the Superintendent used unfettered discretion to select candidates. In doing so, the
Superintendent chose to completely disregard the list and the carefully considered selection process
crafted by the Civil Service staff. The effect was to hire based on non-merit reasons, which is

unconstitutional. As stated in Article X, Section 7 of the Louisiana Constitution, selections must be based

 

6 Sanders v. Department of Health Human Resources, 388 So.2d 768, 771 (La.1980).

28

upon merit, efficiency, fitness, and length of service, as ascertained by examination which, so far as

practical, shall be competitive.?
Constitutionality of Great Place to Work and Whether it is Discriminatory as Applied:

As has been discussed at length throughout this decision, the Superintendent disregarded the
eligible list, and instead arbitrarily selected the applicants based on non-merit based factors. Although
the Superintendent testified that he used his own 15 factors, his testimony was general and
unsupported by the facts. For example, the factors he devised lacked operational definitions, lending
themselves to inconsistent assessments. He could not articulate what weight was assigned to the
various factors, and some of the factors inherently included other factors on the list?suggesting that
those factors were weighted twice. The interview process was unstructured, and there is no way to
ascertain what questions were asked of the candidates, let alone if they were consistently asked for the
same information. Moreover, interviewers were not trained. Finally, the Superintendent has not scored
any of the candidates based on his own 15 factor chart so there is no way to determine whether he
applied his own factors fairly.

The list given to the Superintendent reflected the results of a rigorously designed merit?based
test, carefully tailored to elicit scoring on relevant qualifications to the job at hand. The Superintendent
gave no reason or justification for disregarding the results of that test and for his use of other factors. If
the test had been discriminatory, whether because of a disparate impact based on race or another
protected class, or whether intentionally discriminatory, the Superintendent may have been within his
right to disregard it, but that is not the case here.

Testing and other selection procedures are routinely used as an effective means of hiring or
promoting the most qualified applicants or employees for a particular job. However, use ofthese tools

can violate the federal anti?discrimination laws if an employer intentionally uses them to discriminate

29

based on race, color, sex, national origin, religion, disability, or age. Use of tests and other selection
procedures can also violate the federal anti-discrimination laws even if done unintentionally, ifthey
disproportionately exclude people in a particular group by race, sex, or another covered basis, unless
the employer can justify the test or procedure under the law. The use of seemingly benign test
procedures that nevertheless disproportionately exclude people based on a protected class such as race
is referred to as having a disparate or adverse impact.

When a selection procedure has a discriminatory disparate impact, an employer can engage in
intentional discrimination in order to remedy that disparate impact. However, before an employer can
engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional
disparate impact, the employer must have a strong basis in evidence to believe it will be subject to
disparate impact liability if it fails to take the race?conscious, discriminatory action. Strong evidence
refers to a strong showing that the tests were not job-related, or that there existed alternative selection

practices with less adverse impact. Ricci v. DeStefano, 557 U.S. 557 (2009) (No. 07?1428)

If an employer has a strong basis in evidence that the employer might be subject to disparate
impact liability, the employer could have valid grounds for disregarding the tests and could remedy the
unintentional disparate impact using other criteria such as race. A fear of litigation or of being
vulnerable to a disparate impact suit, however, in and of itself, is insufficient grounds for disregarding

the test results.

In this case, the exam devised by the Civil Service staff was validly based on job-requirements
after extensive study and analysis by professionals. Despite the fact that the exam was designed with
job-related criteria and was carefully formulated to treat applicants equally, whites scored higher than
blacks. However, this rate did not run afoul ofguidelines for disparate impact. If it had, it would

arguably provide a basis for disregarding the Civil Service exam and allow the Superintendent to

30

affirmatively use race to select candidates. However, in this case, the Civil Service exam was valid and
there was no grounds for disregarding it. Even if it the Civil Service exam had an unintentional disparate
impact, there is a lack of any evidence, let alone strong evidence, that the Civil Service exam criteria was

notjob-related, or that there existed alternative selection practices with less adverse impact.

There was thus no justification for the Superintendent to disregard the test and promote based
on race. Although the Superintendent did not articulate that he was promoting based on race, the data
suggests that conclusion. No reasons were given for giving preference to black applicants over white
applicants, or for disregarding the exam results ofthe carefully devised Civil Service examination

process.

Whether the Promotion Process Violated Due Process.

The United States and Louisiana Constitution?s guarantee due process. (U.S. CONST. amend. LA.
CONST.. ANN. art. X, In the context of civil service employment, due process affords an
employee a property right in continued comparable employment. (Cleveland Board ofEducation v.

Loudermill, 470 U.S. 532, 105 1487, 84 L.Ed.2d 494 (1985).)

In this case, the affected applicants were on the list of ranked, eligible certified candidates for
promotion, and were higher ranked then candidates who ultimately obtained the promotion.
Accordingly, the affected applicants possessed property rights which cannot be taken away without

cause and procedural due process.

Due process is a flexible standard and its procedural protections are factually driven and depend on

the particular situation. (Morrissey v. Brewer, 408 U.S. 471, 92 2593, 33 L.Ed.2d 484 (1972))

Under Due Process, an employee whose rights may be affected is entitled to notice and to be heard.

(Wilson v. City ofNew Orleans, 479 So.2d 891, 894 (La.1985).) Correlatively, this right to notice and

31

opportunity to be heard must be extended at a meaningful time and in a meaningful manner. (Fuentes

v. Shevin, 407 US. 67, 92 1983, 32 L.Ed.2d 556 (1972))

A review of the facts here show that (1) the Civil Service staff provided notice of promotional
requirements after conducting a thorough job analysis; (2) after potential applicants were provided
notice of the requirements, the Superintendent created his own scheme of requirements (NOFD ADM-
27), adding desirable qualifications; and (3) the candidates did not have notice of the NOFD ADM-27

prior to the applications process. Thus the use of the NOFD ADM-27 was a violation of due process.

IV. CONCLUSION:

While it is no longer mandatory for the Fire Superintendent to select from a narrower band of
three (3) candidates, the Superintendent is still obligated to use the list to inform his hiring and
promotion decisions. The new Great Place to Work rules are not intended to give the Superintendent
the power to create an additional scheme of requirements and qualifications, especially when this
additional scheme was adopted in violation of Civil Service Rules. Moreover, the seemingly arbitrary
manner in which the Superintendent selected candidates for promotion violates the Louisiana
Constitution, which mandates a merit-based, competitive selection process, based on competitive

examinations.

Keeping in mind the fairness and merit-based selection system enshrined in the Louisiana
Constitution, and after reviewing the examination process, it seems clear that the level of success on the
examination should be more than a starting point and that the Appointing Authority should give
candidates? exam scores appropriate weight in the promotional decision-making process for Fire
Captains. It is an objective measure of a candidate?s knowledge, skills and abilities. Furthermore, if all
but a handful of candidates pass the examination, in this case 120 out of 125, the list should be followed

absent compelling factors. To do otherwise, and to pick anywhere from the list would render the exam
32

meaningless and detracts from the competitive nature ofthe examination process. A promotion is no

longer merit based if the appointing authority can for all practical purposes pick anyone he wants.

This is particularly true when applied to the Fire Department, which is a paramilitary
department, functioning very differently from the other departments. It is a highly structured hierarchy,
relying on a clear chain of command, and specialized skills. Transparency and competitiveness are of
course important in all departments, however, in the case of the Fire Department with a structured
chain of command, the need for inferiors and superiors to feel confident in that competitive selection
process is even more important. For a person to follow the orders of superiors, they must feel confident

in the selection process that forged the chain of command.

Although the Fire Superintendent reasonably believed that the rule change gave him as the
appointing authority absolute discretion to select anyone from the list of 120, and to use his own
subjective and perhaps objective reasons to give one passing candidate preference over another, such a
reading violates the Constitution and Civil Service Rules. The discretion provided under the Great Place
to Work amendments must be read in light of the applicable Constitutional protections and the other
Civil Service provisions. Using discretion when selecting candidates from a ranked list should be the
exception, not the rule, at least as applied to paramilitary departments like a fire department. When
the ranked list is deviated from, a strong and credible reason should be given. Interviews should be
given in a consistent fashion. If the appointing authority is considering 4O applicants that are within the
top 50in the list, then all 50 should be interviewed. To later select number 50 and not have interviewed
numbers 49 and 48 who were passed over, would be inconsistent and not provide the same

opportunities to the candidates.

It would also be of benefit for the Fire Superintendent to coordinate with the Civil Service

Department during the job analysis, if he believes that other factors should be considered, or in

33

developing an interview plan. This would also add to the sense of transparency and legitimacy to the
process. Finally, and this should be obvious to all, the Civil Service Department should be adequately
funded to create large promotional Fire Department examinations on a more regular and consistent
basis. Administering promotional exams on a regular basis eliminates the circumstances currently faced,
where such a large number of vacancies exist at one time, creates a promotional process that is very

arduous and cumbersome for all concerned.

In this instance, the Great Place to Work amendments were discriminatory as applied. By
selecting applicants from anywhere on the ranked list, without adequate justification, the
Superintendent ultimately made decisions based on non-merit factors, which violates the Louisiana
Constitution and Civil Service Rules. These amendments should be read narrowly, requiring adherence
to the ranked list absent strong and credible factors, and utilizing additional criteria only if consistently

applied?such as a consistent interview plan, after consultation with the Civil Service Department.

V. REMEDY:

The Fire Superintendent should have used a top down approach to select candidates based on
exam scores, and should have provided a credible, merit-based reason as to why in a particular instance
he disregarded the list and chose someone from lower down in the ranks. Also, his creation of new
standards and qualifications after the application process raises constitutional due process issues and is
in violation of Civil Service Commission Rules. The remedy for this situation is problematic as there are

competing equities to consider.

The most logical approach would be to start all over again. Those promoted would be reinstated
to their former position and the Fire Superintendent would work from the competitive, ranked list
provided to him. Absent a merit-based, well?articulated and documented reason, he would use the

ranked order to make his selection. However, that would arguably be inequitable to those who have

34

been promoted and now arguably have an interest in their position. Considering the equities of this

situation, those who were promoted, though unconstitutionally, should remain in their position. Those

who should have been promoted because they scored highest, which would be those appellants who

were among the top 41, should now be promoted. Because the Fire Superintendent only promoted

candidates on 9/15/16 who were among the top 24 ranked candidates during the first round of

promotions, the following employees who scored among the top 24 candidates on the list are ordered

promoted retroactive to 9/15/16:

 

 

 

 

 

 

 

 

 

 

(13)

Appeal Name Appeal Name Appeal Name

#8593 DANIEL #8613 SHANE BAILEY #8633 MICHAEL SCIORTINO, IR. (16)

#8602 DANIEL STRICKLAND (19) #8622 JOSHUA KURUDA (3) #8641 JARED CARTER (23)

#8604 WOLFE (6) #8624 ANDREW #8647 ROBERT WILTON 
MONTEVERDE (4)

l#86l 1 BRIAN MENDLESON (22) #8632 DENNIS SCHOOR, JR.

 

 

Note: includes rank for each candidate on the list and means that the candidate was tied.

The following employees who were ranked among the top 41 candidates but who would

not been considered during the first round of promotions are ordered promoted retroactive to

 

 

 

9/30/ 16:
Appeal Name Appeal Name Appeal Name
#8603 BRETT HOPKINS (28) 8634 DOUGLAS SHANAHAN #8637 JOHN VON HOVEN, JR. 
(36)
#3630 MARK IR. (41)

 

 

 

 

 

 

 

Note: includes rank for each candidate on the list and means that the candidate was tied.

The remainder ofthe candidates who were not ranked among the top 41 candidates,

unfortunately, are not entitled to a promotion. Although there were 75 candidates passed over for

promotion when the Fire Superintendent reached down and promoted number 117 on the list, those

75 are not now entitled to a promotion on that basis. The following candidate?s appeals are denied:

 

Appeal

Name

Appeal

Name

Appeal

Name

 

#8605

 

RYAN NEELY 

 

#8618

 

CRAIG HAYDEL 

 

 

#8635

 

DOMINIC SIGNORELLI 

 

35

 

 

 

 

 

 

 

 

 

 

 

 

 

#8606 BRANDON KRASK (9) #8619 KENDRICK JONES (92) #8328636 PAUL ST JULIEN 
#8607 KENNETH PERDUE #8620 JUSTIN KLUMPP (100) "#8638 DAVID WATKINS (83)
#8608 MICHAELMARCELLO (51) #8621 JUSTIN KOENIG (54) #18639 RYAN WILLIAMSON (33)
#8609 DARREN CAMPBELL (82) #8623 BRIAN MCKEAN #8640 JASON MARTIN 
#8610 STEVEN ACLORD (80) #8625 TERRENCE MORRIS, #8642 JARED BAUDY (60)

#8612 STEPHEN MAUTHE (86) #8626 DARRIN NAPOLITANO #8643 ZACK DOMILISE (91)

#8614 JASON BANKSTON (94) #8627 ROY #8646 CRAIG COLLIGAN (104)
#8615 DANIEL CERRONE #8628 PAUL #8648 MATTHEW CHESTER (44)
#8616 SHAWN COLIN (Not on list) #8629 EDWARD POOLE (Not #8655 BRIAN SENNETT, SR. 
on list)
#8617 JOSEPH FRANCIS (96) #8631 STEPHEN ROY (87)

 

 

 

 

 

 

 

 

Note: includes rank for each candidate on the list and means that the candidate was tied.

There were a few exceptions included in the list above that are worth noting. First, one
employee ranked among the top 41 on the eligible list, Mr. Brandon Krsak 8606), was included
on the list above because he was not qualified for appointment at the time the other appointments
were made. Mr. Krsak did not possess the experience requirements necessary to be promoted at
that time, and therefore, his appeal was denied. Second, there were three employees who
appealed but were not on the eligible list. The appeal of Mr. Shawn Colins (#8616) is denied
because he was not on the register of eligible candidates. Also, the appeals of Mr. Edward Poole
(#8629) and Mr. Jason Martin (#8640) are denied because both employees are currently Fire
Captains who were appointed to that job classification prior to this most recent examination
process and they were not on the eligible list. In addition, Mr. Ryan Williamson (#8639), who was
also included on the list above, appealed the effective date of his appointment to Fire Captain
requesting an amendment of the effective date from 9/30/2016 to 9/15/16. Mr. Williamson was
ranked number 33 on the eligible list and would not have been included in the first round Of
promotions which appeared to have been limited to candidates ranked among the top 24

candidates on the list. Therefore, Mr. Williamson?s appeal is denied.

36

The following employees were among the top 41 candidates on the list but did not appeal being
passed over for promotion. No action was taken or recommended relative to these candidates at
this time.

1. John Gnuse (14)
William Parks (31)
Brian Richards (37)
Craig Bourg (39)
Randy Catchot (41)



Finally, it is recommended that the former Civil Service Commission rules regarding, the
certification of and appointments from, eligible lists in place prior to the Great Place to Work rule
changes be restored. The former ?Rule of Three? coupled with the use of banding, granted
flexibility in selection to appointing authorities without enabling them to ignore merit based
selection instruments such as valid tests. A promotion is no longer merit based if the appointing

authorities can, for all practical purposes, select anyone he or she wants.

Decision rendered this got day of November, 2017.

,1 


LISA M5 Huosolv 
PERSONNEL DIRECTOR

 

37