Paul Hellmers, Edward Poole, Jay Fielding & Michael Salvaggio v. Department of Fire

PAUL HELLMERS, EDWARD * NO. 2021-CA-0380
POOLE, JAY FIELDING &
MICHAEL SALVAGGIO *
COURT OF APPEAL
VERSUS *
FOURTH CIRCUIT
DEPARTMENT OF FIRE *
STATE OF LOUISIANA
*******

APPEAL FROM
CITY CIVIL SERVICE COMMISSION ORLEANS
NO. 8594 C\W 8629, 8649, 8692

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Judge Tiffany Gautier Chase
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(Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge
Tiffany Gautier Chase)

Louis L. Robein, III
Paula M. Bruner
ROBEIN URANN SPENCER PICARD & CANGEMI, APLC
2540 Severn Avenue, Suite 400
Metairie, LA 70002

COUNSEL FOR PLAINTIFF/APPELLANT

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

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED
NOVEMBER 10, 2021

TGC
JFM
TFL
Appellants, New Orleans Fire Fighters Association, IAFF Local 632 o/b/o

Paul Hellmers, Edward Poole, Jay Fielding and Michael Salvaggio (hereinafter

collectively “Firefighters”), seek review of the Civil Service Commission’s

(hereinafter “Commission”) April 20, 2021 minute entry denying their request for

back pay. Appellee, The City of New Orleans, through the New Orleans Fire

Department (hereinafter “NOFD”), also seeks frivolous appeal damages. After

consideration of the record before this Court and the applicable law, we affirm the

ruling of the Commission and deny NOFD’s request for frivolous appeal damages.

Facts and Procedural History

In 2016, NOFD Superintendent Timothy McConnell requested a list of

eligible candidates to fill five fire district chief promotion positions. He was

presented with fifteen eligible candidates to fill the promotion positions. Five of

the fifteen candidates were promoted and four of the firefighters who were not

promoted filed a promotional appeal with the Civil Service Department pursuant to

Civil Service Rule VI, § 6.1.1

1
Civil Service Rule VI, § 6.1:

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
1

On November 8, 2018, the personnel director of the Civil Service

Department issued a decision finding that the NOFD’s promotional decisions were

unconstitutional and in violation of certain Civil Service rules. The personnel

director further determined that the appropriate remedy would be to retroactively

promote the Firefighters. Specifically, Michael Salvaggio was retroactively

promoted effective March 6, 2016; and Paul Hellmers, Edward Poole and Jay

Fielding were retroactively promoted effective May 15, 2016. The Firefighters

subsequently filed a motion seeking to enforce the personnel director’s decision

with the Commission. Simultaneously, NOFD requested the Commission examine

the November 8, 2018 findings of the personnel director. The Commission denied

the motion to enforce and deferred action on the request to investigate pending this

Court’s decision in Achord v. Dep’t of Fire, 2018-0635 (La.App. 4 Cir. 12/27/18),

318 So.3d 816.2 On January 28, 2019, upon the issuance of this Court’s decision in

Achord, NOFD re-urged its request for the Commission to examine the personnel

director’s November 8, 2018 findings. By minute entry dated February 7, 2019, the

Commission denied NOFD’s request, determining that: (1) the Commission would

not exercise its discretionary authority to investigate the fire district chief

presenting such forms or documents as the Director may prescribe. The Director,
or any person designated by him, may hold special hearings to determine the facts
of each case and the Director shall make his decision on the basis of the written
statements and forms presented by the employee and on the facts brought out in
the hearing. The employee shall have the right to appeal to the Commission if
dissatisfied with the action of the Director.
2
In Achord, this Court affirmed in part the Commission’s ruling “finding that it properly
exercised its constitutional authority to investigate the Firefighters’ protests that the NOFD’s
promotions were not merit-based and competitive… .” Achord, 2018-0635, p. 11, 318 So.3d at
823. This Court further reversed in part the Commission’s ruling “finding that it did not have the
authority to order the NOFD to promote qualified firefighters to the position of fire captain after
they were denied promotion in violation of the Louisiana Constitution.” Id., 2018-0635, p. 12,
318 So.2d at 823. As such, the matter was remanded with the “instruction that the Commission
remedy the constitutional violations by ordering the promotion of the qualified applicants… .”
Id.
2

promotions and (2) as a result of the Commission’s denial to investigate the

promotions, the personnel director’s decision and remedy are final as of February

7, 2019. NOFD appealed the Commission’s ruling with this Court.

On October 30, 2019, this Court issued an opinion finding “that the

Commission’s denial of NOFD’s request to investigate was not a final appealable

judgment over which this Court has subject matter jurisdiction” and dismissed

NOFD’s appeal. Hellmers v. Dep’t of Fire, 2019-0420, p. 12 (La.App. 4 Cir.

10/30/19) ___ So.3d ___, 2019 WL 5607426, writ denied, 2020-00021 (La.

2/26/20), ___ So.3d ___, 2020 WL 10787498. NOFD implemented the retroactive

promotions of the Firefighters on May 26, 2019, for Jay Fielding, Paul Hellmers

and Michael Salvaggio; and on June 1, 2019, for Edward Poole.3 NOFD then

evaluated each Firefighter’s pay records during the retroactive promotion period.

NOFD used the same pay records and the salary for the fire district chiefs, pursuant

to Civil Service Rule IV, § 1.3, to determine how much the Firefighters would

have earned as fire district chiefs during the retroactive promotion period. NOFD

found that the Commission’s February 7, 2019 ruling did not require it to pay the

Firefighters any additional back pay since the Firefighters did not suffer any loss of

income due to the delayed promotions.

In light of this determination, on September 8, 2020, the Firefighters

petitioned the Commission to determine whether they were entitled to back pay

under the Commission’s February 7, 2019 ruling. The Firefighters contended that

since fire district chiefs are paid a higher base salary than captains, their back pay

should be calculated utilizing an hourly rate which reflects the higher base salary

3
Pursuant to a Petition for Mandamus filed by NOFD in Civil District Court, Parish of Orleans,
State of Louisiana, the parties entered into a consent judgment, dated May 23, 2019, wherein it
was agreed that the issue of back pay and emoluments would be resolved by the Commission.
3

for every hour worked as a captain from the date of retroactive promotion.

Conversely, NOFD maintained that the Firefighters earned more as captains than

they would have as fire district chiefs, during the retroactive promotion period,

resulting in no financial loss and thus, no entitlement to back pay. On April 20,

2021, the Commission found that the personnel director’s back pay order was

intended to offset any financial loss suffered by the Firefighters due to their

delayed promotion. It noted that the back pay order is not a “legally conferred

benefit” beyond what is allowed by the Civil Service rules. The Commission

further found that:

The [Firefighters] were performing non-exempt work as Captains
during the time in question and earned over-time as non-exempt
employees, causing their compensation to rise above their base pay
and above what they would have earned had they worked in the
exempt classification of District Chief. Consequently, the
Commission found that the [Firefighters] have been made more than
whole by the enforcement of the Director of Personnel’s order, given
that their overtime earnings far exceeded the back pay they would
have received as District Chiefs.

The Commission thus denied the Firefighters request for back pay, determining

that recalculating the pay as requested by the Firefighters would be inconsistent

with the Commission’s uniform pay plan.4 This appeal followed.

4
See LSA-Const. Art. 10, § 10(A)(1):

Each commission is vested with broad and general rulemaking and subpoena
powers for the administration and regulation of the classified service, including
the power to adopt rules for regulating employment, promotion, demotion,
suspension, reduction in pay, removal, certification, qualifications, political
activities, employment conditions, compensation and disbursements to
employees, and other personnel matters and transactions; to adopt a uniform pay
and classification plan; to require an appointing authority to institute an employee
training and safety program; and generally to accomplish the objectives and
purposes of the merit system of civil service as herein established. It may make
recommendations with respect to employee training and safety.
4

Standard of Review

Civil service cases are reviewed under a manifest error standard of review.

In Russell v. Mosquito Control Board, this Court stated:

In Banks v. New Orleans Police Dep't., 2001–0859, p. 3 (La.App. 4
Cir. 9/25/02), 829 So.2d 511, 513–14, we articulated the standard of
review in civil service cases. First, the review by appellate courts of
the factual findings in a civil service case is governed by the manifest
error or clearly erroneous standard. Second, when the Commission's
decision involves jurisdiction, procedure, and interpretation of laws or
regulations, judicial review is not limited to the arbitrary, capricious,
or abuse of discretion standard. Instead, on legal issues, 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. A legal error occurs here when a trial
court applies the incorrect principles of law and such errors are
prejudicial. Finally, a mixed question of fact and law should be
accorded great deference by appellate courts under the manifest error
standard of review. See Stern v. New Orleans City Planning
Comm'n, 2003–0817, pp. 5–6 (La.App. 4 Cir. 9/17/03), 859 So.2d
696, 699–700.

Russell v. Mosquito Control Bd., 2006-0346, pp. 7-8 (La.App. 4 Cir. 9/27/06), 941

So.2d 634, 639-40; See Achord, 2018-0635, pp. 4-5, 318 So.3d at 819.

Discussion

The Firefighters assert two assignments of error which aver that the

Commission violated Civil Service Rule IV, § 9 and failed to properly award back

pay. Specifically, the Firefighters argue that it was error for the Commission and

NOFD to compare total wages of captains against the base pay rate of fire district

chiefs in denying their request for back pay.

Firefighters Earnings

The Firefighters assert that because the captain position is non-exempt, they

are entitled to earn unscheduled overtime compensation pursuant to Civil Service

Rule IV, § 9.2(b), which provides that:

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(b) any non-exempt employee engaged in fire protection activities
shall be paid overtime at the special hourly base rate for all hours
worked in excess of two hundred and twelve (212) hours in a
twenty-eight (28) day work period.

The Firefighters suggest that their overtime earnings are not relevant to the back

pay owed during the retroactive promotional period. Essentially, the Firefighters

argue that whatever overtime compensation they earned as captains should not be

used in the determination of back pay owed for their retroactive promotions. The

Firefighters maintain that it was error for the Commission to find that they were

not entitled to back pay because the Firefighters earned more, due to overtime

compensation, as captains than they would have under the base pay for fire district

chiefs.

Conversely, NOFD argues the Firefighters benefitted during the retroactive

promotion period since they suffered no financial loss because they earned more as

captains as opposed to fire district chiefs. As such, NOFD determined that the

Commission’s February 7, 2019 ruling did not require back pay to the Firefighters.

NOFD relies on Civil Service Rule II, § 11.1,5 which allows for an offset for any

wages earned during the period for which back pay is owed. NOFD acknowledges

that this rule applies to successful disciplinary appeals, but makes the analogy that

the overtime earnings acquired by the Firefighters, which could not have been

earned as fire district chiefs, offset their lower base pay as captains.

5
Civil Service Rule II, § 11.1:

In all appeals to the Commission under these Rules wherein a final judgment has
been rendered by either the Commission, the Court of Appeal, Fourth Circuit, or
the Louisiana State Supreme Court, immediate steps shall be taken by the City to
fully comply with the judgment. This restoration shall include, where appropriate,
reimbursement for all back wages and emoluments due and accrued annual and/or
sick leave, less an offset for any wages earned during the period for which back
pay was restored.

6

While we make no definitive determination as to NOFD’s assertion that

Civil Service Rule II, § 11.1 should analogously apply to the case sub judice, we

find that the Commission did not err in denying the Firefighters’ request for back

pay. The record reflects that as captains, during the retroactive promotion period,

the Firefighters earned the following amounts, which included overtime

compensation: (1) Jay Fielding, $261,921.96; (2) Paul Hellmers, $389,665.11; (3)

Edward Poole, 282,873.70; and (4) Michael Salvaggio, $295,287.06. The base pay

for captains is between $39,119.00 and $59,366.00, while the base pay for fire

district chiefs is between $45,169.00 and $74,242.00.

The Commission’s April 20, 2021 decision reveals that it considered the

Firefighters assertion “that every hour of overtime worked should be paid at a

[d]istrict [c]hief level even though, as District Chiefs, they would not have been

eligible for any overtime payment, regardless of the hours they worked as exempt

employees.” The Commission ultimately determined that “to recalculate District

Chief pay as suggested by the [Firefighters] would be inconsistent with the

uniform pay plan and give rise to potential claims by other members of the

[d]istrict [c]hief classification who did not receive additional compensation for

exempt hours of work.” The Commission found that the personnel director’s

decision required that the Firefighters be made whole and their earnings during the

retroactive promotional period accomplished that goal.

Based on the record before this Court, it cannot be said that the

Commission’s findings were manifestly erroneous. Even if the Firefighters would

have been paid at the highest possible base salary for fire district chiefs during the

retroactive promotional period, they would not have earned as much as they

actually earned as captains since they would not have been entitled to overtime
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compensation. To pay the Firefighters an additional salary as fire district chiefs for

the retroactive promotional period would result in compensation as both non-

exempt captains and exempt fire district chiefs for the same time period. Thus, we

find no error in the Commission’s determination that the compensation earned by

the Firefighters, during the retroactive promotional period, made them whole and

therefore, resulted in no financial loss.

Legally Conferred Benefit

The Firefighters also assert that the overtime compensation earned as

captains is a “legally conferred benefit” which NOFD cannot use to offset the

amount of back pay owed. The Commission determined that no lawful authority

“has conferred a benefit on the [Firefighters] beyond what is allowed by Civil

Service rules and the Uniform Pay Plan.” The Firefighters rely on New Orleans

Firefighters Local 632 v. City of New Orleans, 2007-1475 (La.App. 4 Cir. 3/5/08),

980 So.2d 760, for the proposition that once a benefit is conferred it cannot be

retroactively discarded. In that case this Court found that “once

conferred,…benefits cannot be retroactively taken away.” Id., 2007-1475, p. 14,

980 So.2d at 769. As recognized by NOFD, our decision in New Orleans

Firefighters Local 632 specifically dealt with statutorily required longevity pay as

mandated by La. R.S. 33:1992(B), which is not applicable to the matter currently

before this Court. See Id.

However, as noted by the Firefighters, overtime compensation is a legally

conferred benefit. See New Orleans Firefighters Ass’n v. Civil Service Comm’n of

City of New Orleans, 422 So.2d 402, 413 (La. 1982) (“The right to receive

premium pay for overtime work is certainly a benefit to an employee”).

Nonetheless, we do not agree that the overtime compensation earned was used by
8

NOFD to offset the amount of back pay owed for the retroactive promotional

period. NOFD did not attempt to retrieve the compensation earned by the

Firefighters during the retroactive promotional period. Nor did they subtract the

amount of base pay for captains from the base pay for fire district chiefs. NOFD’s

calculation determined that the Firefighters earned more as captains than they

would have as fire district chiefs during that period of time. Additionally, the

Commission’s ruling did not strip non-exempt employees of the right to earn

overtime compensation. The Commission specifically found that no back pay was

due because the Firefighters did not suffer a financial loss since they were

compensated more as captains as opposed to fire district chiefs. Accordingly, we

find no error in the Commission’s findings that the Firefighters were not owed

back pay for the retroactive promotional period.

Frivolous Appeal

NOFD seeks frivolous appeal damages in the form of attorney’s fees and

costs incurred in connection with this appeal. La. C.C.P. art. 2164 provides for the

award of damages for a frivolous appeal.6 “The statute permitting frivolous appeal

damages must be strictly construed in favor of the appellant, as it is penal in

nature.” Johnson v. Johnson, 2008-0060, p. 5 (La.App. 4 Cir. 5/28/08), 986 So.2d

797, 801. Appeals are always favored and damages will not be granted unless the

appeal is unquestionably frivolous. Id. (quoting Tillmon v. Thrasher

Waterproofing, 2000-0395, p. 8 (La.App. 4 Cir. 3/28/01), 786 So.2d 131, 137. It

6
La. C.C.P. art. 2164:

The appellate court shall render any judgment which is just, legal, and proper
upon the record on appeal. The court may award damages, including attorney
fees, for frivolous appeal or application for writs, and may tax the costs of the
lower or appellate court, or any part thereof, against any party to the suit, as in its
judgment may be considered equitable.
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cannot be said that the Firefighters appeal is unquestionably frivolous. The record

does not support a finding that the Firefighters attempted to delay the action, do not

seriously believe the law they advocate or failed to present a substantial legal

question. See Johnson, 2008-0060, p. 5, 986 So.2d at 801. Accordingly, we deny

NOFD’s request for frivolous appeal damages.

Decree

For the foregoing reasons, we find the Commission did not err in denying

the Firefighters’ request for back pay, determining that they have been made whole

by their salaries as captains during the retroactive promotional period.

Accordingly, we affirm the April 20, 2021 ruling of the Commission. NOFD’s

request for frivolous appeal damages is denied.

AFFIRMED

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