Mubashir Maqbool v. Civil Service Commission

MUBASHIR MAQBOOL * NO. 2025-CA-0221

VERSUS * COURT OF APPEAL

CIVIL SERVICE * FOURTH CIRCUIT
COMMISSION
* STATE OF LOUISIANA

*******

APPEAL FROM
CITY CIVIL SERVICE COMMISSION ORLEANS
NO. 9691
Hearing Examiner Mark Surprenant
******
Judge Rachael D. Johnson
******
(Court composed of Judge Daniel L. Dysart, Judge Paula A. Brown, Judge Rachael
D. Johnson, Judge Karen K. Herman, Judge Nakisha Ervin-Knott)

DYSART, J., DISSENTS AND ASSIGNS REASONS

Mubashir Maqbool
5752 Bellaire Drive
New Orleans, LA 70124

APPELLANT

Christina L. Carroll
CITY OF NEW ORLEANS CIVIL SERVICES COMMISSION
1340 Poydras Street
Suite 900
New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLEE

VACATED AND REMANDED
October 14, 2025

RDJ
PAB Appellant, Mubashir Maqbool, appeals a November 8, 2024 decision of the
KKH
NEK New Orleans Civil Service Commission (“the Commission”) denying his request

for retroactive “extraordinary qualifications” pay pursuant to Civil Service Rule

IV, § 2.7. For the following reasons, we vacate the decision of the Commission and

remand with instructions.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The New Orleans Sewerage and Water Board (“SWB”) promoted Appellant

to the position of Senior Principal Engineer in December 2021. At that time,

Appellant had 37 years of professional engineering experience and 34 years of

supervisory experience, which SWB considered to be “extraordinary or superior

qualifications.” Appellant and SWB verbally agreed that SWB would request a

starting salary above the minimum hiring rate for Appellant due to his

qualifications. As per Civil Service Rule IV, § 2.7(a), an appointing authority (such

as SWB) must request an employee’s “extraordinary qualifications” pay from the

Commission. Appellant accepted the Senior Principal Engineer position, believing

that SWB would request a 3.75% salary adjustment on his behalf.

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Appellant presumed that he was receiving the mid-level “extraordinary

qualifications” pay throughout 2022 until January of 2023. However, upon

reviewing his salary details in June 2024, he realized that he had not been receiving

the “extraordinary qualifications” pay. Appellant brought this issue to the attention

of Steven Giang, Manager of the SWB Network Engineering Department. Mr.

Giang admitted to his oversight of failing to formally request Appellant’s

“extraordinary qualifications” pay in a June 5, 2024 inter-office memorandum to

the SWB Human Resources Director:

This memorandum is to let you know that inadvertently I missed
sending a formal memo requesting mid-point salary to [Appellant]
when he was promoted to a Senior Principal Engineer position within
the Network/Drainage Engineering Department back in December
2021. We had agreed to grant him a mid-point salary above the
minimum hiring rate of $96,370.00 at the time of his interview for
Senior Principal Engineer position. As his credentials justify in
granting him a mid-point salary. [sic].

It was an oversight by me that the requisite paperwork was not
submitted along with his promotion documents.

...

I am requesting you to adjust his base salary from the hiring date of
December 20, 2021, with a base salary of $112,306.00, midpoint of
pay grade 98.

There were no other candidates on the register for a Senior Principal
Engineer with the same or equivalent extraordinary qualifications as
[Appellant] at the time of his promotion.

The SWB Human Resources Director informed Appellant that the

Commission Personnel Director is ultimately in charge of granting an increased

pay rate and that she opposed his retroactive pay increase. The Commission

Personnel Director interpreted the phrase “upon appointment”1 in the preamble of

1 The preamble to Civil Service Rule IV, § 2.7 states that, “[s]ubject to the revocation of the

Personnel Director, an appointing authority may pay an original, temporary, provisional or

2

Civil Service Rule IV, § 2.7 to preclude any retroactive awarding of “extraordinary

qualifications” pay, even if the pay was warranted at the time of appointment.

On September 13, 2024, Appellant appeared at a regular Commission

meeting to appeal the Commission Personnel Director’s denial of the retroactive

pay. The minutes of the meeting show that the Commission did not consider any of

Appellant’s supporting documentation because it was dated after the time of his

appointment.

Specifically, the Commission refused to consider a September 5, 2024 email

from David Callahan, the SWB Chief Administrative Officer, to the Commission

Personnel Director. Though the Commission did not consider this email at its

September 13, 2024 meeting, its contents are relevant and state the following:

We believe it necessary to go on the record to further emphasize that
our internal review of the circumstances determined that [Appellant’s]
supervisor, through an administrative error/oversight, failed to submit
the form required. We believe that [Appellant] possessed the
qualifications exceeding minimum requirements at the time of the
promotion, and his departmental leadership supported the action at
that time as affirmed by his Executive Department Head. The
omission/error was through no fault of [Appellant].

We wish to ensure this information (via this e-mail) is made available
to the Commission, to the extent it may assist or inform any decision
the Commission chooses to make on the matter.

(Emphasis added).

The Commission concluded that “[i]n terms of what the rule requires to

reward someone with extraordinary qualifications pay, neither the department nor

[Appellant] has provided sufficient documents that would justify retroactive

application of superior qualifications pay.” Consequently, the Commission

deferred consideration of Appellant’s request so that Appellant and SWB could

regular employee a pay rate of up to the midpoint of the pay range upon appointment, subject to
the following conditions and limitations: . . . .” (emphasis added).

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provide dated documentation from December 2021 evidencing SWB’s intent to

request the extraordinary qualification pay at the time of Appellant’s appointment.

The Commission revisited Appellant’s request during its November 8, 2024

regular meeting. There, the Commission Personnel Director informed the

Commission that Appellant and SWB were unable to locate the requested relevant

documentation from 2021. For that reason, the Commission unanimously denied

Appellant’s request.

On appeal, Appellant raises two assignments of error. The dispositive issue

is whether the Commission erred in denying Appellant retroactive extraordinary

pay, despite his superiors and the Commission determining that he possessed the

minimum qualifications, experience, and/or credentials required, in violation of

Civil Service Rule IV, § 2.7(a).

STANDARD OF REVIEW

Decisions of the Commission are “subject to appellate review on any

questions of fact or law.” Smith v. Civ. Serv. Comm’n, 2019-0393, p. 3 (La. App. 4

Cir. 11/27/19), 286 So. 3d 458, 460 (quoting Winford v. Dep’t of Police, 2009-

0770, p. 4 (La. App. 4 Cir. 3/3/10), 33 So. 3d 949, 951). On appeal, this Court

reviews the Commission’s findings of fact under the “clearly wrong or manifest

error standard of review,” Fuentes v. Dep’t of Civ. Serv., 2019-1045, p. 2 (La. App.

4 Cir. 5/13/20), 300 So. 3d 40, 41 (quoting Liang v. Dep’t of Police, 2013-1364, p.

8 (La. App. 4 Cir. 8/20/14), 147 So. 3d 1221, 1225), and accords “great deference”

to Commission decisions regarding mixed questions of law and fact. Fuentes,

2019-1045, p. 2, 300 So. 3d at 41 (quoting Orazio v. Dep’t of Police, 2019-0230, p.

7 (La. App. 4 Cir. 6/19/19), 275 So. 3d 340, 345, writ denied, 2019-01174 (La.

10/15/19), 280 So. 3d 609).

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“[W]hen 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, 2019-0230, p. 8, 275 So. 3d at 345 (alteration in original) (quoting Achord

v. Dep’t of Fire, 2018-0635, pp. 4-5 (La. App. 4 Cir. 12/27/18), 318 So. 3d 816,

819).

“[T]he appropriate standard of appellate review of actions2 by the Civil

Service Commission is to determine whether the conclusion reached by the

Commission is arbitrary or capricious.” Daisy v. Plaquemines Par. Gov’t, 17-0076,

p. 4 (La. App. 4 Cir. 8/30/17), 226 So. 3d 560, 563 (alteration in original) (quoting

Aucoin v. Dep’t of Police, 16-0287, p. 4 (La. App. 4 Cir. 3/29/17), 229 So. 3d 531,

533). “‘Arbitrary and capricious’ means that there is no rational basis for the action

taken.” Id., 17-0076, p. 5, 226 So. 3d at 563 (quoting Williams v. Dep’t of Utils.,

03-1473, p. 6 (La. App. 4 Cir. 1/28/04), 867 So. 2d 26, 30).

Here, the Commission contends that Appellant’s assignment of error

addresses a factual determination or an interpretation of fact and law, thus invoking

the “manifest error/clearly erroneous” standard of review or warranting “great

deference” to the Commission’s decision. However, at issue in this case is not

whether the Commission correctly interpreted Appellant’s evidence, which would

involve a finding of fact and would accordingly invoke the clearly erroneous

standard. Rather, the question is whether the Commission should have considered

Appellant’s evidence at all in making its decision, thus involving review of an

2 According to the federal Administrative Procedure Act, “‘agency action’ includes the whole or

a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or
failure to act.” 5 U.S.C. § 551(13).

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agency’s reasoning for its action. Accordingly, the arbitrary and capricious

standard of review applies.

DISCUSSION

Civil Service Rule IV, § 2.7(a) provides:

Extraordinary or Superior Qualifications, Experience, Credentials

Subject to the revocation of the Personnel Director, an appointing
authority may pay an original, temporary, provisional or regular
employee a pay rate of up to the midpoint of the pay range upon
appointment, subject to the following conditions and limitations:

(a) That the appointee possesses extraordinary or superior
qualifications/credentials above and beyond the minimum
qualifications, experience, and/or credentials required which have
been verified and documented as job related, and that the amount of
additional pay shall be justified based on an objective analysis of the
additional financial advantage the increased hiring rate will provide to
the city.

(Emphasis added).

The parties agree that the phrase “upon appointment” within the preamble of

Civil Service Rule IV, § 2.7 means that an appointing authority must request

extraordinary qualifications pay at or around the time of the employee’s

appointment. However, the crux of Appellant’s assignment of error rests on

whether the proof he provided of SWB’s intent to request the extraordinary

qualification pay at the time of his appointment is sufficient. Appellant argues that

he met the relevant criteria to be granted the requested pay, as evidenced by the

documentation he presented at the Commission’s September 13, 2024 meeting.

While the Personnel Director and the Commission determined that only

documentation created during December 2021 is sufficient, this Court disagrees.

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The Commission premises its position on: (1) policy considerations, (2) case

precedent, and (3) the notion that granting Appellant relief would amount to an

exception to Civil Service Rule IV, § 2.7.

The policy considerations the Commission cites are “the potential for

appointing authorities to engage in political favoritism using extraordinary

qualifications pay” and “concerns about abuse and prohibited donations.” Though

Civil Service Rule IV, § 2.7 is surely designed to uphold this valid and compelling

public policy, it is unclear why only evidence created in December 2021 would be

adequate to safeguard against abuse and political favoritism. Moreover, there is

nothing in the record to suggest that SWB is engaging in political favoritism or that

there are concerns regarding abuse and prohibited donations.

The Commission primarily relied upon two cases to illustrate its historical

reluctance to award retroactive “extraordinary qualifications” pay: Fuentes, 2019-

1045, 300 So. 3d 40, and Smith, 2019-0393, 286 So. 3d 458. Each of these cases

are factually distinguishable from the case sub judice. Both involve Rule IV, §

2.7(d), which requires that employees with the same or equivalent credentials

receive the same pay.

In Fuentes, this Court affirmed the Commission’s application of Rule IV, §

2.7(d), determining that an employee was not entitled to a compensation

adjustment to match that received by another employee. 2019-1045, pp. 3-4, 300

So. 3d at 42. Mr. Fuentes was the Personnel Division Chief of the Human

Resources Department for the New Orleans Department of Parks and Parkways.

He requested that his qualifications, experience, and credentials be considered in

comparison to those of Mr. Matthews, the Personnel Division Chief of the Human

Resources of the New Orleans Public Library. Mr. Fuentes asserted that because he

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occupied the same job classification as Mr. Matthews, his salary should be

adjusted to match Mr. Matthews’. Id. at p. 1, So. 3d at 41. The Commission found

that Mr. Matthews, who had a Master’s degree and 30 years of experience, was

more qualified and had more relevant experience than Mr. Fuentes, who had a

Bachelor’s degree and 15 years of experience. Accordingly, the Commission

denied Mr. Fuentes’ request for increased pay based upon “extraordinary

qualifications.” Id. at p. 2, So. 3d at 42. On appeal to this Court, we held that the

Commission was not clearly wrong in making this determination and affirmed the

Commission’s decision. Id. at pp. 3-4, So. 3d at 42.

In Smith, this Court affirmed the Commission’s application of Rule IV, §

2.7(d), declining to award retroactive extraordinary pay. 2019-0393, p. 6, 286 So.

3d at 461. There, Department of Civil Service Personnel Administrator Ms. Smith

requested consideration of retroactive extraordinary pay based on the fact that a

New Orleans Police Department Human Resource Administrator, Mr. Pierce, was

receiving a higher salary than her. Ms. Smith asserted that the two possessed the

same or similar qualifications, experience, and/or credentials and occupied

positions in the same job classification. Id. at pp. 2-3, 286 So. 3d at 458-59. The

Commission “recognized Appellant was a valued employee and, for that reason,

increased [Ms. Smith’s] pay as an exception to Rule IV, § 2.7(d).” Id. at p. 6, 286

So. 3d at 461. However, the Commission did not award this pay retroactively, so

Ms. Smith appealed to this Court. On appeal, to determine whether Rule IV, §

2.7(d) should have been applied retroactively, this Court laid out the job

descriptions of both employees and demonstrated that Mr. Pierce indeed had more

duties and responsibilities than Ms. Smith. Since the two employees did not

occupy positions in the same job classification, the circumstances did not trigger

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application of Rule IV, § 2.7(d). Id. at pp. 5-6, 286 So. 3d at 460-61. Accordingly,

this Court stated that the Commission was not clearly wrong or manifestly

erroneous for declining the Appellant’s request for retroactive pay. Id. at p. 6, 286

So. 3d at 461.

Fuentes and Smith are not analogous to the instant matter, given that those

cases involve a Rule that is triggered by circumstances not present in the case sub

judice. While § 2.7(d) requires that employees with the “same or equivalent”

credentials receive the same pay, § 2.7(a) simply states that employees with

extraordinary qualifications can receive a starting pay rate of up to the midpoint of

the pay range upon appointment.

Further, the Fuentes Court did not address the issue of retroactive pay

whatsoever. Mr. Fuentes was merely “requesting an increase in pay to match that

received by” Mr. Matthews; no mention is made of retroactive pay. Id. at p. 1, So.

3d at 41. Though the Commission used this case to illustrate its reluctance toward

awarding retroactive pay, the case does not demonstrate this.

Similarly, although the Smith case includes a party who is requesting

retroactive pay, this Court’s affirmation of the Commission’s denial to grant the

retroactive pay was on grounds unrelated to the retroactivity of the pay. Instead,

the reasoning for denying Ms. Smith’s request was based on the fact that the

employees did not occupy positions within the same job classification, as

demonstrated by the duties and responsibilities of Ms. Smith’s job compared to

those of Mr. Pierce’s. The increased pay which the Commission awarded her was

based upon her individual value as an employee and not to comport with the

requirements of Rule IV, § 2.7(d). In fact, the reasoning of this case never

mentioned the policy considerations which the Commission included in its brief,

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suggesting that the Commission did not consider relevant the potential for abuse or

political favoritism.

The Commission also argues that granting Appellant relief would

improperly create an exception to Rule IV, § 2.7(a). The Commission avers that

because the Rule states that an appointing authority must pay the “extraordinary

qualifications” pay “upon appointment” (subject to the revocation of the

Commission Personnel Director), this means that any retroactive awarding of the

pay would create an exception to the Rule.

It is more accurate to say that Appellant seeks retroactive application of Rule

IV, § 2.7(a) in order to receive pay to which he was entitled, yet did not receive

through no fault of his own. The language of the Rule does not bar retroactive

application if the necessary conditions were present at the time of the appointee’s

appointment. Appellant’s attempt to provide documentation (specifically, Mr.

Giang’s memorandum and Mr. Callahan’s email) to the Commission was to prove

that the necessary conditions were indeed present at the time of his appointment.

The Commission’s argument that Appellant seeks an exception to Rule IV, §

2.7(a) belies its original position, namely, that the proof Appellant presented did

not meet the requirements of Rule IV, § 2.7(a). As is reflected in the Commission

meeting minutes, the Commission was not concerned that retroactive application of

the Rule would improperly create an exception, but rather, it was concerned that

Appellant did not have sufficient proof to properly justify retroactive application.

Thus, if Appellant had presented the Commission with what it considered to be the

“right” proof, it would seemingly have applied the Rule retroactively without

concern of creating an exception.

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This Court does not find the Commission’s arguments on appeal compelling.

In its arguable attempt to avoid creating an exception to the Rule, the Commission

invented an unnecessary threshold which any evidence must meet in order to prove

that the requirements of the Rule applied when Appellant was appointed.

Messrs. Giang and Callahan avowed in no uncertain terms SWB’s intent to

request the “extraordinary qualifications” pay at the time of Appellant’s

appointment. The only aspect of this evidence that the Commission regarded as

insufficient was the date of creation of Mr. Giang’s memorandum and Mr.

Callahan’s email, since both were created after Appellant’s appointment. As stated

above, the Commission contended at its September 13, 2024 meeting that “[i]n

terms of what the rule requires to reward someone with extraordinary

qualifications pay, neither the department nor [Appellant] has provided sufficient

documents that would justify retroactive application of superior qualifications pay”

(emphasis added). Yet, Rule IV, § 2.7 does not require an appointing authority

seeking a pay increase for its appointee – whether at the time of appointment or

retroactively – to produce documentation dated at the time of appointment to

illustrate the appointing authority’s intent to request “extraordinary qualifications”

pay. The Commission never references a specific part of the Rule that supports this

strict evidentiary requirement. As such, it is unclear why the Commission

concluded that only documentation created at the time of appointment is relevant

or reliable for purposes of retroactive application.

Despite its intent to safeguard against abuse and political favoritism, the

Commission’s proposed application of Rule IV, § 2.7 leads to inequitable results

under the unique facts of this matter while also ignoring alternative methods to

ensure that the evidence produced is authentic. For example, the Commission

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could have allowed SWB to provide an affidavit attesting to its intent to request the

pay at the time of Appellant’s appointment. The Commission’s argument leads to

the position that any evidence created after an event is unreliable and should not be

taken into consideration, which goes against the widely accepted use of post hoc

evidentiary devices such as affidavits, depositions, and testimony.

The Commission’s refusal to consider any evidence from after December

2021 showing SWB’s intent to request the extraordinary qualifications pay on

behalf of Appellant was arbitrary and capricious. As stated above, the threshold for

“arbitrary and capricious” is that the agency had “no rational basis for the action

taken.” The Commission refused to consider the supporting evidence that

Appellant presented (i.e., the documents from his supervisors and superiors at

SWB) and instead created a condition that any evidence must be from December

2021 to be valid without providing any clear reasoning. The Commission’s

determination that Appellant’s evidence did not meet its excessive standard, and

then denying Appellant’s request on that basis, was arbitrary.

DECREE

For the foregoing reasons, the Civil Service Commission’s November 8,

2024 decision, denying Mubashir Maqbool’s request for consideration of the

Sewerage and Water Board’s prior request to award retroactive “extraordinary

qualifications” pay for Mubashir Maqbool, is vacated. This matter is remanded to

the Civil Service Commission for the purpose of considering the documentation

presented by Appellant to determine whether he qualifies for extraordinary

qualifications pay pursuant to Civil Service Rule IV, § 2.7(a).

VACATED AND REMANDED WITH INSTRUCTIONS

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