Orazio v. Department of Police

ORAZIO, ET AL * NO. 2021-CA-0032

VERSUS *
COURT OF APPEAL
DEPARTMENT OF POLICE *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CITY CIVIL SERVICE COMMISSION ORLEANS
NO. 7893
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Judge Rosemary Ledet
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(Court composed of Judge Rosemary Ledet, Judge Tiffany G. Chase, Judge Dale
N. Atkins)

Eric J. Hessler
2802 Tulane Avenue, Suite 102
New Orleans, LA 70119

Raymond Charles Burkart, Jr.
THE LAW OFFICES OF RAYMOND C. BURKART, JR., L.L.C.
321 North Florida Street, Suite 104
Covington, LA 70433

COUNSEL FOR PLAINTIFF/APPELLANT

Elizabeth Robins
DEPUTY CITY ATTORNEY
Sunni J. LeBeouf
CITY ATTORNEY
William R. H. Goforth
ASSISTANT CITY ATTORNEY
Donesia D. Turner
SENIOR CHIEF DEUPTY CITY ATTORNEY
1300 Perdido Street, Room 5E03
New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLEE

REVERSED AND REMANDED
May 19, 2021

RML This is the fourth appeal in this civil service case. The factual and
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procedural background of this case is set forth in this court’s three earlier
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opinions—Orazio v. City of New Orleans, 12-0423 (La. App. 4 Cir. 1/16/13), 108

So.3d 284 (“Orazio 1”); Orazio v. Dep’t of Police, 17-1035 (La. App. 4 Cir.

5/23/18), 248 So.3d 745 (“Orazio 2”); and Orazio v. Dep’t of Police, 19-0230 (La.

App. 4 Cir. 6/19/19), 275 So.3d 340, writ denied, 19-01174 (La. 10/15/19), 280

So.3d 609 (“Orazio 3”). In this appeal, the narrow issue is whether the

Commission erred in denying the petition for back pay—premised primarily on

Orazio 3—filed by current or former New Orleans Police Department (“NOPD”)

Captains and one Major who were not appointed to any of the Commander

positions (collectively “Employees”).1 For the reasons that follow, we reverse and

remand for an evidentiary hearing.

To place the issue in context requires a review of the development of the

Commander position within the NOPD and the complex procedural background of

1
Employees are Norvel Orazio; Michael Glasser; Harry Mendoza; Rose Duryea, Frederick
Morton; Jerome Laviolette; Raymond C. Burkart, Jr.; James Scott; Joseph Waguespack; Heather
Kouts; William Ceravolo; Simon Hargrove; and Bruce Adams.

1

this case, which has been pending before the City of New Orleans’ Civil Service

Commission (the “Commission”) since 2011.

Commander Position

As we observed in Orazio 3, there have been three iterations of the

Commander position:

 Colonel (Classified2)—In October 2010, then-Superintendent Ronal Serpas
requested the creation of a hybrid job position to be labeled “Colonel”—a
management position “similar to police major and/or police colonel (new
title) with a fifteen (15%) difference between current base pay of police
captain and police major”;

 Special Rate of Pay Assignment (Classified)—In March 2011, in lieu of the
requested Colonel position, a special rate of pay rule—referred to as
“Commanders’ special rate of pay assignment”—was approved by the
Commission. The special rate of pay assignment was, in essence, a
temporary, special job assignment accompanied with a special rate of pay.
The special rate of pay assignments were made at the Superintendent’s
discretion, and the persons discharging these assignments were classified
employees; and

 Commander (Unclassified)—In February 2017, then-Superintendent
Michael Harrison requested that the Commission approve sixteen

2
The Louisiana Constitution provides that “[t]he state and city civil service is divided into the
unclassified and the classified service. Persons not included in the unclassified service are in the
classified service.” La Const. art. X, § 2(A). The Constitution enumerates the unclassified service
positions and includes a catchall provision: “[a]dditional positions may be added to the
unclassified service and those positions may be revoked by rules adopted by a commission.” La.
Const. art. X, § 2(B); Orazio 3, 19-0230, p. 12, 275 So.3d at 347. Pursuant to the catchall
provision, the Commission has adopted Civil Service Rule III, § 7.1, which provides:

At its discretion, the City Civil Service Commission may add additional positions
to the unclassified service, if:

(a) after a thorough review and analysis of the duties and responsibilities of the
position, the Commission has determined that they neither are appropriate for, nor
should they be performed by, a classified employee and,

(b) the position is essentially of a sensitive nature, having considerable discretion
and policy-making authority, which is not subject to further review or
modification and,

(c) the position is audited on a regular basis by the Civil Service Department to
determine the continuing appropriateness of the unclassified status.

2

unclassified Commander positions to replace the Commander special rate of
pay assignments. The Commission approved the request in 2017 and
reapproved it in 2018.

Procedural Background

The procedural background of this case is set forth in this court’s three

earlier opinions; a brief synopsis of the earlier opinions is as follows:

 In Orazio 1, the issue was whether the Commission acted arbitrarily and
capriciously when it denied a request for an investigation and a contradictory
hearing regarding the creation of the Commander position. 12-0423, pp. 3-4,
108 So.3d at 287. Citing La. R.S. 33:2397(4) and Civil Service Rule III, §
7.363 as providing the authority for the Commission to conduct an
investigation and to hold an evidentiary hearing, we held that an
investigation coupled with an evidentiary hearing regarding the creation of
the Commander position was required. In so holding, we observed that
“[t]he record before us connotes the questionability of the classified or
unclassified nature of the ‘job assignment’ or ‘position’” and that “[a]n
investigation would ensure ... ‘the integrity of the merit system’ and protect
an ‘equitable relationship between positions in the classified and unclassified
services.’” Orazio 1, 12-0423, p. 5, 108 So.3d at 287-88 (quoting Rule III, §
7.3).

 In Orazio 2, the issue was whether the Commission’s creation of sixteen
unclassified Commander positions exceeded its constitutional and statutory
authority. We observed that the Louisiana Constitution authorizes the
Commission to adopt its own rules regarding the adding and revoking of
unclassified positions and that the statutory provisions grant the Commission
discretionary authority. Affirming the Commission’s action, we reasoned
that the constitutional and statutory provisions, read together, authorized the
Commission to create additional unclassified positions and that the
Commission’s action “align[ed] with its authority afforded by the
constitution and the civil service rules.” Orazio 2, 17-1035, p. 12, 248 So.3d
at 752; and

 In Orazio 3, the issue was whether the Commission erred in reapproving the
sixteen unclassified Commander positions. Answering that question in the
affirmative, we held that “[g]iven the record does not support a finding that
any of the three factors set forth in Civil Service Rule III, § 7.1 is satisfied,
the Commission’s ruling reauthorizing the sixteen unclassified Commander
positions is manifestly erroneous.” Orazio 3, 19-0230, p. 20, 275 So.3d
at 352.

3
The references elsewhere in this opinion to “Rule” is to the Civil Service Rules of the
Commission.

3

After this court issued its decision in Orazio 3, Employees filed a petition

with the Commission requesting, among other things, back pay. The Commission

deferred addressing Employees’ back pay request until after the Supreme Court

denied the NOPD’s writ application in Orazio 3. On February 20, 2020, the

Commission, in a split (4-to-1) decision, denied Employees’ back pay request. In

its reasons for denying the request, the Commission made the following key points:

 The Fourth Circuit [in Orazio 3] did not instruct the Commission to award
back pay to any Captain or Major based on its ruling about whether the
position of Commander should be unclassified or classified.

 The Commanders “were performing more onerous job duties than Captains
or Majors,” even if the Captains and Majors were “qualified to perform the
job duties.”4

 The Captains seeking back pay were not tasked with the same level of
supervision or administrative duties as the officers serving in the position of
Commander.

 The Fourth Circuit’s holding that Commanders were performing duties
performed by classified officers does not necessarily mean that Commanders
were exclusively performing the duties of either the class of Captain or the
class of Major. Therefore, Petitioners’ claim for back pay based on unequal
pay is denied. Likewise, the request for attorney’s fees is denied.

 To the extent Petitioners assert discrimination claims distinct from claims
based on unequal application of the uniform pay plan, the Commission
denied these claims at this time based on the record before it.

Concurring, one commissioner additionally observed that “the Commission is not

required to award back pay to Captains who did not work as Commanders or

receive higher rates of pay as Commanders.” As discussed elsewhere in this

opinion, the dissenting commissioner would have awarded back pay to all affected

4
The majority reasoned that, contrary to the City’s contention, Employees “seek back pay . . .
not general money damages, based on performance of equal job duties for lower pay.” The
majority further reasoned that classified employees have a right of appeal based on unequal
application of the schedule of pay for positions in the City of New Orleans uniform pay plan.
The majority then observed that the comparators must hold positions in the same classification.

4

Captains “beginning June 26, 2016” pursuant to Rule IV, § 15.1.5 This appeal

followed.

STANDARD OF REVIEW

As we observed in Orazio 3, the governing, multi-faceted standard of review

in civil service cases is as follows:

 An appellate court reviews factual findings in a civil service case
under the manifest error or clearly erroneous standard of review. An
appellate court accords great deference to mixed questions of fact and
law;

 The issue of whether the Commission’s actions exceed its authority
presents an interpretation of fact and law governed by the manifest
error or clearly erroneous standard of review; and

 When the Commission’s decision involves legal issues such as
jurisdiction, procedure, and interpretation of laws or regulations,
appellate courts give no special weight to the findings of the trial
court, but exercise their constitutional duty to review questions of law
and render judgment on the record.

Orazio 3, 19-0230, pp. 7-8, 275 So.3d at 345 (internal citations and quotations

omitted); see also Russell v. Mosquito Control Bd., 06-0346, pp. 7-8 (La. App. 4

Cir. 9/27/06), 941 So.2d 634, 639-40.

DISCUSSION

On appeal, Employees’ principal argument is that the Commission erred in

failing to award them back pay retroactive from November 7, 2019—when all

Captains received substantial pay increases—to March 1, 2011—when the special

rate of pay assignment was approved. Employees’ back pay claim is premised

primarily on Orazio 3, which reversed the reauthorization of the sixteen

5
Rule IV, § 15.1 provides that “[a]ny claim for back pay brought by an employee in the
classified service based upon the application of the Pay Plan or the rules regarding classification
and compensation must be submitted in writing, to the Personnel Director no later than three
years from the date that the employee knew, or should have known, about the facts giving rise to
the claim.”

5

unclassified Commander positions. Employees suggest that Orazio 3 dictates an

award of back pay to them at the Commander’s rate of pay. In support, Employees

cite this court’s statement in Orazio 3 that the Commander position, in all its

iterations, is indistinguishable from the classified positions of Major and Captain.

Indeed, Employees contend, in their brief to this court, that the Commission

“cherry-picked portions of Orazio 3 and applied its own spin on the decision in an

effort to support its order denying [Employees’] back pay.” Contrary to

Employees’ contention, Orazio 3 neither addressed nor awarded back pay.

The other basis on which Employees premise their back pay claim is

discriminatory pay. The minutes from the Commission’s November 18, 2019

meeting reflect the following discussion regarding the discriminatory pay basis of

Employees’ back pay claim:

Based on the Commission’s mandate to implement a uniform
system of classification and compensation, it is clear that since 2011
all employees have been in the same uniform classification although
there was discriminatory pay that was mistakenly given. Back pay to
2011 is required. Raymond Burkart, representing PANO [the Police
Association of New Orleans], stated that while these pay raises were
given, he and the Captains were assigned to a trailer performing
Sergeant and Lieutenant work. They were willing and able to perform
the functions of Captain and Major. The appointing authorities chose
not to use them and instead used Lieutenants to perform the work. It
started as a special assignment and then became an unclassified
position in 2017 and they were awarded $15,000-$20,000 more than
Captains and Majors.

Commissioner Surprenant stated the city’s memo in opposition
says the petitioners were never appointed to the unclassified positon
of Commander so they cannot receive back pay for a position they
never held nor can they receive back pay not provided for in the Pay
Plan or the Rules. Mr. Burkart responded that it is discrimination.
They did not choose those positions, the appointing authority did. The
Commission has an obligation to have a hearing on it. They wanted to
run older, more experienced officers out because they somehow felt
we would be opposed to the Consent Decree. Commissioner
Surprenant noted the city states no law allows for a retroactive
increase in pay. He asked Mr. Burkart if there is any such law. Mr.

6

Burkart responded that yes. Civil Service can rectify discrimination.
The Commission is obligated to make it right.

During the entire period for which Employees seek back pay, they worked as

Captains and were paid as such.6 Following Orazio 3, however, as the dissenting

commissioner observed, “all 16 Commanders [now] are working as Captains,

either because the former Commander returned to that classified rank or because

the former Commander is appointed as a Captain provisionally under our Rules.”

As the dissenting commissioner further observed, “[f]ollowing Orazio 3, as of

November 7, 2019, all Captains (including former Commanders) received a pay

increase to the salary unclassified Commanders were receiving.” Thus, following

Orazio 3, Captains’ salaries were raised to that of Commanders.

Given the NOPD’s current treatment of Commanders the same as Captains,

the issue presented here is whether the duties of Commanders and Captain were

different in any way. During oral argument before this court, the attorneys for both

sides were asked this question. Employees’ attorney answered that the duties were

not different. Although the NOPD’s attorney answered that the duties were

different, the NOPD’s attorney acknowledged that there was very little evidence in

the record regarding the duties of respective positions.

This court has recognized that La. R.S. 33:2397(4) allows the Commission

to conduct “any investigation concerning the administration of personnel in the city

service.” See Crescent City Lodge #2, Fraternal Order of Police, Inc. v. New

6
See Chaisson v. Dep't of Police, 556 So.2d 73, 74-75 (La. App. 4th Cir. 1989) (affirming
Commission’s decision denying increased compensation given testimony that “clarified the
difference between appellant’s situation and the situation of other officers receiving increased
pay”); Smith v. Civil Serv. Comm’n, 19-0393, p. 6 (La. App. 4 Cir. 11/27/19), 286 So.3d 458,
461 (observing that “[b]ecause Appellant does not occupy the same job classification as the
employee to whom she compared herself, she is not entitled to retroactive increased pay pursuant
to the CSC Rule IV, § 2.7(d)”).

7

Orleans Civil Serv. Comm’n, 20-0411, p. 4 (La. App. 4 Cir. 2/17/21), ___ So.3d

___ , 2021 WL 626483; Orazio 1, 12-0423, p. 5, 108 So.3d at 287. In this case, we

find the interests of justice dictate that the matter be remanded for a full

evidentiary hearing on two issues: (i) whether the duties of Commander and

Captain were different; and (ii) when the Captains first made a claim for back pay

given the three-year prescriptive period in Rule IV, § 15.1.7 Given our finding that

a remand for an evidentiary hearing is required, we pretermit addressing the other

issues raised by Employees.

DECREE

For the foregoing reasons, we reverse the Commission’s February 17, 2020

and February 20, 2020 rulings and remand for a full evidentiary hearing on the

issues of whether the duties of Commanders and Captains were different and when

Employees made their initial claim for back pay.

REVERSED AND REMANDED

7
The dissenting commissioner, as noted earlier, indicated that he would have awarded back pay
to all affected Captains “beginning June 26, 2016” pursuant to Rule IV, § 15.1.

8