Tag Archives: Louisiana Constitution

The Sewerage & Water Board, the New Orleans Civil Service Commission, and the Media Attention

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The following is the entirety of my post regarding the NOLA.COM story entitled Sewerage & Water Board, not Civil Service, to blame for hiring delays.

The Civil Service Commission Chairman is right that the Sewerage & Water Board asked that the ability to hire people be delegated to the Sewerage & Water Board. At that time, I stood up and argued against that delegation on behalf of the Fraternal Order of Police. It was not that the request to delegate that authority directly impacted the police department, but that it adversely impacted the civil service system in general.

The Civil Service Commission Chairman correctly states that the Sewerage & Water Board has failed in hiring new people, not the Civil Service Department. What she fails to state is that in spite of these failures, the Civil Service Commission has not revoked that delegation of authority and continues to facilitate weakening Civil Service.

As the article points out, the Landrieu administration has attempted to “reform” the Civil Service Commission since 2010. The “reforms” they have instituted are antithetical to the purpose and goals of the Civil Service system. The Civil Service Commission has been complicit in these “reforms” since Mayor Landrieu began replacing Commissioners on the Civil Service Commission with people who are inclined to give the Mayor what he wanted in spite of the basic tenets of any merit-based system of employment.

As I stated above, I argued against delegating hiring authority to the Sewerage & Water Board. What they have done is reduce funding and staffing for the Civil Service Department and then complain about how the Civil Service Department is unable to meet the needs of various departments and then used this to justify decimating the Civil Service system in New Orleans. The other “reforms” the Landrieu administration and the Civil Service Commission have implemented are as much of a failure as the Sewerage & Water Board hiring delegation. Unfortunately, those failures do not result in street flooding or maybe they would have gotten some media attention. So, while we are on the subject of Civil Service, let’s talk about some other stuff.

The Mayor’s Great Place to Work Initiative, which was the greatest part of the “reforms” implemented by Landrieu, changed the way promotions were made. In effect, employees seeking a promotion take a test and all persons who pass the test are eligible to be promoted. Unfortunately, Louisiana Constitution Article X, Section 7 reads as follows:

“Permanent 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. The number to be certified shall not be less than three; however, if more than one vacancy is to be filled, the name of one additional eligible for each vacancy may be certified. Each commission shall adopt rules for the method of certifying persons eligible for appointment, promotion, reemployment, and reinstatement and shall provide for appointments defined as emergency and temporary appointments if certification is not required.

Promotions under the Great Place to Work are not competitive and the test is not used to determine merit, efficiency, fitness, or length of service, as the Constitution requires. In addition to these recently acquired deficiencies, the Civil Service Rules on promotions prior to the Great Place to Work Initiative were the product of a consent decree in the matter of Larry Williams v. City of New Orleans, 725 F2d 1554 (5th Cir. 1984). The consent decree in the Williams case set out to eliminate discrimination in the promotional process.

The Williams consent decree developed the use of banding test scores to allow the NOPD greater flexibility in choosing promotional candidates to ensure racial equity while maintaining the Louisiana Constitution’s requirements of assessing merit, efficiency, fitness, and length of service through competitive testing. In addition the usage of banding allowed the Civil Service to reduce the error inherent in testing, making test results more accurate. The Williams consent decree, and the resultant banding system, was the result of a number of expert psychometricians and experts from other relevant fields under the oversight of a federal judge. The Great Place to Work Initiative undid the changes implemented by the those experts via the Williams consent decree. The Great Place to Work Initiative re-opened the door to discrimination, favoritism, nepotism, and other ism’s. The Great Place to Work Initiative was not compiled by experts in the field, but it negated changes that were made by experts.

The Great Place to Work Initiative has also led to morale problems. Employees are now uncertain about what it takes to get promoted. Given that uncertainty, it is nearly impossible to resist the conclusion that promotions are being made on the basis of who you know instead of what you know or your ability to perform the job. None of this inspires confidence in the system or the department’s leadership.

In addition to the changes made to the promotional system, the Civil Service Commission has recently added 16 unclassified positions to the New Orleans Police Department. These 16 unclassified positions were previously held by classified employees. The Civil Service Commission approved this request in spite of objections by the Civil Service Department and arguments presented by myself and others. Simply put, the addition of these unclassified positions was contrary to the Civil Service Rules and the underlying notion of the merit-based system of employment. Unclassified positions are the exception to the rule and the addition of these unclassified system effectively denies classified employees a promotional opportunity because they have effectively replaced the classified position of Police Captain.

This just skims the surface of what is wrong with the Civil Service Commission now and the problems caused by the Great Place to Work Initiative. The New Orleans Fire Department has experienced many of the same problems as the NOPD. I am sure there are issues I am unaware of. Deputy Mayor Andy Kopplin, CAO at the time, once told me that the Civil Service Department was too overly concerned with fairness. Maybe in private enterprise an employer can place other things ahead of fairness. However, in public service, fairness is the cornerstone of a healthy Civil Service system.

The Civil Service Commission was right to point the finger at the Sewerage & Water Board regarding these hiring problems. But, the Civil Service Commission needs to look a little closer to home regarding the Great Place to Work Initiative. Maybe they can avert the inevitable disaster that will result from this wanton destruction of the Civil Service Rules.

The Great Place to Work Initiative needs to be repealed. There is nothing wrong with implementing changes to improve the efficiency of the Civil Service Department. However, wholesale changes to a system which was the biggest reform to public service this country has ever seen is a tremendous mistake — a mistake which has already been made.

Donovan Livaccari, Spokesman
Fraternal Order of Police
Crescent City Lodge #2

Unclassified Positions and Reform in the #NOPD

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Recently, I wrote about the New Orleans Police Department’s request to the New Orleans Civil Service Commission for the creation of 16 new unclassified jobs in the NOPD.  The NOPD made its pitch at the February 20, 2017 meeting of the Civil Service Commission and it received some media attention here and here.  The Civil Service department opposed the creation of these unclassified positions, referring to the request as “unprecedented.”  After hearing from the NOPD, myself, on behalf of the FOP, Capt. Mike Glasser, PANO, Lt. Keith Joseph, BOP, and a few others, the Civil Service Commission took no action to allow the Civil Service Department to complete its work and put the matter on the agenda for the March meeting (March 20 if anyone wants to accompany me on behalf of the FOP).

I do not intend to re-post my argument against the creation of the unclassified positions, but for those who have not had the chance to read this article or my letter to the Civil Service Commission in this regard, the Civil Service Rules, which have the force and effect of law, require that in order for a position to be considered unclassified, the job’s responsibilities are not appropriate for anyone in the classified service and should not be performed by anyone in the classified service.  Furthermore, someone serving in an unclassified position must have policy-making authority which is not subject to further review or modification.  Finally, the Civil Service Commission is required to audit the position regularly to make sure that it is still not fit for the classified service.  As both Superintendent Harrison and myself made a point of saying, unclassified positions are the exception to the rule in a merit-based system of employment like Civil Service.

Currently, there is no “Commander” position, really.  There is a “Commander” assignment.  The Commander assignment, which must be filled by someone holding the rank of Police Lieutenant or higher, comes with a special rate of pay.  While I am unaware of anyone actually pushing this particular issue, the NOPD stated that one of the reasons we need to reconsider this special rate of pay is that a special rate of pay does not confer any grant of authority.  So, the question is does a Police Lieutenant in the position of Commander have the authority to issue orders to a Police Major?  While I am unaware of anyone pushing this issue, there are reasons to reconsider the use of a special rate of pay for commanders.  The majority of people assigned to Commander positions are in the rank of Police Lieutenant.  Police Lieutenants are non-exempt employees.  That means they should make overtime like all other non-exempt personnel under the FLSA.  However, they do not get overtime.  They are currently being treated as exempt employees.  While their pension is controlled by their actual rate of pay, terminal leave is paid to these individuals based on their Civil Service classification.  Finally, it is just an abuse of the special rate of pay provisions.  This special rate of pay scheme was put in place in 2011 after the Civil Service Commission told then Superintendent Serpas that he could not have 16 unclassified Police Colonel positions.

So, if the positions were not fit to be unclassified in 2011, what has changed that would make them appropriate today?  Well, while not answering the preceding question, Superintendent Harrison said that Department of Justice report which led to the current Consent Decree indicted the prior leadership “had largely acquiesced to wide-spread abuses by officers at all ranks.”  Superintendent Harrison went on to praise the accomplishments of individuals currently in the position of Commander.  Finally, the Superintendent insisted that it was critical that he be able to “swiftly replace leaders who are not performing to standard.”

What is exceedingly clear from the arguments made by Superintendent Harrison is that the NOPD has some good leaders in the position of Commander and that Commanders are performing the jobs previously held by officers in the classified service and that Commanders do not have the type of policy-making authority that is not subject to further review or modification.  What is clearly lacking is any logical connection between the existence of the Commander special rate of pay and any of the accomplishments of the folks holding those positions.

During the meeting, Commissioner Stephen Caputo, the newest member of the Civil Service Commission, noted that on several instances in my letter to the Commission I stated the position of Commander had been historically held by Police Captains and Police Majors.  He then asked if I was advocating for the status quo, or doing things as they have always been done.

My response was that I was not arguing for the status quo, but that the Civil Service Rules require that the job responsibilities be unfit for performance by anyone in the classified service.  History shows us that prior to 2011, the job responsibilities were performed by employees in the classified service.  Nothing has changed to make the jobs unfit for the classified service.

That does not mean that we have to maintain the status quo.  For example, the NOPD has the longest working-test period for employees.  Working-test periods, otherwise known as probationary periods, are set at 6 months in the Civil Service Rules with a maximum of 1 year.  The NOPD has 1-year working-test periods across the board.  That means that if someone is promoted to the rank of Police Captain and is unable to meet expectations, they can be demoted to their prior classified position — for just about any reason.  Generally speaking, if someone is incapable of performing a job, that incompetence will reveal itself within a year.  My point is that before we go shopping for a new toolbox, maybe we should make sure that we are making the best use of the tools we already have.

Civil Service Commission Chair Michelle Craig said that the Commission wanted the opportunity to examine best practices.  While the idea of “best practices” aggravates me to no end, I was fascinated by Superintendent Harrison’s reply that NOPD was re-writing the best practices and, therefore, what they are doing is the de facto best practice.

In today’s environment of instant gratification, we have to be able to point out real-time problems to demonstrate why these ideas that run contrary to the civil service philosophy should be avoided.  That is an impractical demand.  However, make no doubt about it, it is coming.  There will be a discriminatory application of the “Great Place to Work Initiative,” if there hasn’t been one already.  The creation of 16 unclassified Commander positions, would eventually prove problematic.

The first merit-based civil service system can be traced back to Imperial China and Emperor Wen of Sui (AD 605).  It wasn’t until the 1940’s that Louisiana embraced the civil service system.  Even then, it was repealed in 1948 and re-established in 1952.  Since then, more than a few changes have been made to how civil service systems are administered.  However, the idea of a merit-based system of employment utilizing objective standards and competitive testing has persisted.

So, while I am not advocating doing things as we did them in 1992, I am advocating the maintenance of the underlying set of guiding principles which have served us well for a long time.  We don’t have to throw the baby out with the bath water.  We don’t ditch democracy just because there is a more efficient way to administer the Department of Education.  The New Orleans Civil Service Commission has taken some steps recently which are downright scary.  The “Great Place to Work Initiative” dismissed important civil service principles relating to promotions and competitive exams.  Of course, the NOPD would point to successes of newly promoted sergeants or lieutenants as if that is the result of the new system in some way.  If you are thinking they wouldn’t do that, that is exactly what they are doing with the Commander position.  Granting the NOPD 16 unclassified positions to replace the special rate of pay for Commanders would be counter to the underlying fundamentals of the civil service system.  Does that mean it has to be done the old way?  No.  It just means it shouldn’t be done the way the NOPD has proposed.

Police Body Worn Camera Videos

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The Louisiana Legislature is currently considering Senate Bill 398 by Sen. Ronnie Johns (R)-Lake Charles.  Senate Bill 398 would exempt all body worn camera videos recorded by police from public records disclosure unless the individual or entity seeking disclosure of the video files a lawsuit and gets a court order directing the video be disclosed.  It should be noted that the bulk of police body worn camera videos will likely be exempt from disclosure based on the already existing law regarding records of ongoing criminal litigation (See La. R.S. 44:3).

In an opinion piece by the NOLA.COM Editorial Board, it is stated that the bill was introduced at the behest of law enforcement.  To clarify that broad assertion, the bill was introduced at the behest of the Louisiana Chief’s Association.  What that means is that the bill was introduced at the request of police administrators across the state, not the rank and file officers.

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NOPD Promotions Illegal and Damaging Morale

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UPDATE:  This article has been revised to redact individuals’ names.  While I received an overwhelming number of supportive reactions to this article, I am concerned about those who thought it was unfair to one particular individual.  It was never my intent to belittle anyone or throw anyone under the bus.  It is the process that is the issue, not the individuals involved.  Therefore, I have redacted all names except for the list of promotions.  The names are unimportant.  I congratulate those who were promoted.

On September 23, 2015, the New Orleans Police Department announced 8 promotions.  Typically, promotions are something to be celebrated and a boost to morale.  Unfortunately, this cannot be the situation.  The round of promotions before this was not much better.  Unfortunately, these promotions have done little more than make morale in the NOPD just a little bit worse.

On September 23, 2015, the following promotions were made:

Lt. Derek Frick to Police Commander
Lt. Bryan Lampard to Police Commander
Sgt. Daryl Watson, I to Police Lieutenant
Sgt. Sabrina Richardson to Police Lieutenant
Sgt. Duralph Hayes to Police Lieutenant
Sgt. Kenrick Allen to Police Lieutenant
Police Officer Charles Love to Police Sergeant
Police Officer Stephanie Taillon to Police Sergeant

Sgt. Daryl Watson was promoted to Police Lieutenant.  Lt. Watson was 61st on the list of 65 Police Sergeants who passed the promotional examination   That means that 60 out of 65 people performed better on the promotional examination.  This is not a multiple choice test.  This is an exam specifically created to test a candidate’s proficiency as a Police Lieutenant with the New Orleans Police Department.  Not only was Lt. Watson 61st on the list, but candidate numbers 3, 4, 7, 8, 11, 13, 16, 18, 19, 22, 24, 25, 25 (tie), 28, 29, 30, 31, 32, 33, 34, 37, 39, 40, 41, 43, 44, 45, 47, 48, 49, 49, 49 (tie), 52, 55, 55 (tie), 57, 58, 59, and 60 remain unpromoted.

Candidates go into promotional exams thinking that they know what it takes to get promoted.  A candidate who scores well on the test and doesn’t have a pending disciplinary investigation can count on being promoted once the NOPD gets to that candidate’s place on the list.  It simply doesn’t work that way any longer.

What does it take to get promoted?  Some kind of special qualifications, experience, or training?  Well, Lt. Daryl Watson has been assigned to the Criminal Section of the Public Integrity Bureau for a long time.  Certainly that kind of experience must be hard to find.  It might be, but Sgt. Kevin Stamp, number 30 on the list, shares the same assignment and has been in that assignment for quite a while.  So, I guess that is not it.  Is it education?  Sgt. Eric Berger, number 22 on the list, graduated from law school.  I don’t think Lt. Watson has a law degree, so that is not it.  What is it?

Here is what the Louisiana Constitution tells us:

Permanent 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.
La. Const. art. X, § 7

The Civil Service system is designed to ensure that promotions and appointments are made based on objective criteria that are no secret to anyone.  The Constitution clearly envisions those objective criteria being accounted for in the examination process.

The Louisiana Constitution goes on to explain the process for picking promotional candidates with a little flexibility built in:

The number to be certified shall not be less than three; however, if more than one vacancy is to be filled, the name of one additional eligible for each vacancy may be certified. Each commission shall adopt rules for the method of certifying persons eligible for appointment, promotion, reemployment, and reinstatement and shall provide for appointments defined as emergency and temporary appointments if certification is not required.
La. Const. art. X, § 7

This is where the problem comes in.  In spite of the obvious logical flaws, the Landrieu administration has fought to interpret this as saying that the number to be certified could be 3 or 103.  Once they had the right people appointed to the Civil Service Commission, the rules were changed basically making everyone who passed the test equal.  Whatever the competitive nature of the testing is, if there is any beyond passing the test, is a mystery.

What I can say for certain is that the men and women of the New Orleans Police Department believe that the competitive criteria is friendship with the right person.

What I can also say for certain is that whether or not that is true is irrelevant because perception is reality.

The Civil Service system was developed to prevent that perception.  The Civil Service system was designed to prevent political interference and “the spoils system.”  The Civil Service system was designed so that an objective set of criteria could be applied to candidates for promotion in the public employ and employees could count on getting promoted, even if they were not friends with the boss.

These revisions to the Civil Service rules made as part of Mayor Landrieu’s Great Place to Work initiative need to be repealed.  The Fraternal Order of Police has a lawsuit filed in Civil District Court asking a Judge to declare the new rules unconstitutional.  We would all be better off if the Civil Service Commission repealed these changes on their own accord or if the NOPD sought to have these rule changes repealed.  Of course, that won’t happen.  The NOPD could have continued to apply the old rules to promotions.  Had the NOPD continued using the old rules in spite of the rule changes, perhaps officers wouldn’t feel like their chances of getting promoted were impacted by potentially anything other than test score.  Superintendent Serpas sought to kill the last promotional register for Police Lieutenant after the first half of the list was promoted.  It was his stated belief that he would have rathered give a new test to generate a new list in order to avoid promoting from the bottom half of the list (the list being comprised of all who have passed the exam).

At this point in the history of the NOPD and the City of New Orleans, police manpower is at critical levels.  Manpower has been at critical levels for several years now and will take years to correct.  As long as the men and women who make up the NOPD believe that they are not being treated fairly or that promotions aren’t being administered fairly, it will be hard to convince officers that they should be trying to encourage potential law enforcement professionals that this is the place to start a career.

It was not my intention to pick on Daryl Watson for any reason.  I am only trying to illustrate a point.  Nothing written here is intended to infer in any way that Daryl Watson is not a capable police officer or that he will not make a capable Police Lieutenant.  Indeed, I have spoken with others who had been promoted from the bottom of the list who have indicated that they too wished the NOPD had used the old rules to promote people so that people would not be as quick to question their potential as a supervisor.  Hopefully, he will understand.  I used 62 as my example last time.

This needs to be fixed or morale will never improve.

Open Carry in Louisiana

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English: The Bill of Rights, the first ten ame...

The Bill of Rights, the first ten amendments to the United States Constitution  (Photo credit: Wikipedia)

Recently, I was told about an officer that ran across a citizen carrying a firearm openly.  The officer took what he felt was the appropriate action to address the situation.  In light of the current political climate regarding guns, gun control, the 2nd Amendment, etc., a couple of people indicated they would like to see some further information on the topic of open carrying.  This topic is much simpler than it may seem.

The law that allows open carry in Louisiana is Article 1 Section 11 of the Louisiana Constitution and the 2nd Amendment to the U.S. Constitution.

Article 1 Section 11 of the Louisiana Constitution was recently amended to state “The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny.” La. Const. art. I, § 11.The 2nd Amendment to the United States Constitution states “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  U.S. Const. amend. II

Without getting too heavy into some type of constitutional analysis, the Supreme Court says that American citizens have the right to keep and bear arms.  “Keep arms” means “have weapons” and “bear arms” means “wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.”  Dist. of Columbia v. Heller, 554 U.S. 570, 584, 128 S. Ct. 2783, 2793, 171 L. Ed. 2d 637 (2008).  See also McDonald v. City of Chicago, Ill., 2010, 130 S.Ct. 3020, 177 L.Ed.2d 894.

It is allowable to ban the possession under certain circumstances.  LSA 14:95.1 bans convicted felons from possessing a firearm or carrying a concealed weapon (see State v. Clement, Sup.1979, 368 So.2d 1037).  It is likewise allowable to ban carrying a firearm at a school, a school-sponsored function, or a firearm-free zone (see LSA 14:95.2).

However, attempts to prohibit any form of open carry have been overturned as unconstitutional in Georgia and Tennessee.
In this regard, what is legal is defined by what is specifically illegal.  In general, if one is not in violation of LSA 14:95, et seq., one will be protected by the Louisiana Constitution and the U.S. Constitution.
The Louisiana Supreme Court has held that the state can regulate how weapons are

Louisiana Supreme Court

Louisiana Supreme Court (Photo credit: Wikipedia)

carried as discussed above:

The statute against carrying concealed weapons does not contravene the second article of the amendments of the Constitution of the United States. The arms there spoken of are such as are borne by a people in war, or at least carried openly. The article explains itself. It is in these words: “A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” This was never intended to prevent the individual States from adopting such measures of police as might be necessary, in order to protect the orderly and well disposed citizens from the treacherous use of weapons not even designed for any purpose of public defence, and used most frequently by evil-disposed men who seek an advantage over their antagonists, in the disturbances and breaches of the peace which they are prone to provoke. There is, therefore, nothing in the Constitution of the United States which requires of us a rigorous construction of the statute in question.  State v. Smith, 11 La. Ann. 633 (1856).

The Louisiana Supreme Court also addressed what constitutes concealment.  Basically, if part of the weapon is concealed and part visible, then it is concealed.  If you strap a rifle to your back or holster a weapon on your hip, it is not concealed.

The constitutional right is to bear arms openly, so that when one meets an armed man there can be no mistake about the fact that he is armed. When we see a man with musket to shoulder, or carbine slung on back, or pistol belted to his side, or such like, he is bearing arms in the constitutional sense. Of course there are other examples. These are but illustrations. There is no danger of any jury or court misinterpeting our statute prohibiting carrying concealed weapons, and confounding a case of lawful arms-bearing with one of carrying dangerous weapons concealed, unless verbal distinctions are pressed too far and they are misled by them. A pistol half stuck in a pocket or about the clothes so that it is not fully exposed, even though a part of it may be visible, is carrying a concealed weapon within the meaning and intent of the statute, and that is the language of the charge.  State v. Bias, 37 La. Ann. 259, 260 (1885).

A law enforcement officer who encounters someone who is openly carrying a firearm is going to conduct an analysis as indicated in
T

erry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968),

unless the officer already has probable cause to arrest.  Of course a law enforcement officer is free to speak with whoever he or she choose.  However, that person is also free to not speak back or answer questions.  Once the individual is no longer free to leave, a law enforcement officer would need articulable probable cause to arrest.

I think it is also important to note that one is not guilty of trespass (LSA 14:63) as long as you have express, legal, or implied authority to enter or remain on the property.  A business, by the very nature of being open, impliedly invites people in.  However, that authorization can be revoked at which time it could be a violation of LSA 14:63 to remain.  In the context of this discussion, if an individual was lawfully carrying a firearm openly, it would be legal to walk into the local grocery (as long as it didn’t violate some other law like being too close to a school or in a firearm-free zone).  However, if the store rescinds whatever authorization that person had to enter the store, then it could be a violation of LSA 14:63 to remain on the property (or return later).

The Louisiana Open Carry Awareness League provides these guidelines regarding open carry in Louisiana.  While this is obviously a special interest group, the FAQ’s appear to be decent explanations of the law.

If anyone has anything they would like to add to this discussion, please feel free to comment or let me know directly.  This is in no way meant to be a political statement on my part.  It is simply a recitation of the law as I understand it to be currently and is intended for those tasked with enforcing the law.

NOPD Promotions

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Before city employees had Civil Service, public employment was dolled out as part of the spoils system.  Politicians often made wholesale changes to the public payrolls when they were elected based solely on the political connections or affiliation of the appointee.  In 1940, following Huey Long and a brief stint by Earl Long as governor of Louisiana, New Orleans attorney Charlie Dunbar proposed a merit based system of employment for public servants.  This effectively eliminated the spoils system and was repealed in 1948 during Earl Long’s second of three appearances in the governor’s mansion.  In 1953, the Civil Service system was made part of the Louisiana Constitution and was continued in the 1974 revision to the Louisiana Constitution.

There have been several relatively recent modifications to the State of Louisiana Civil Service system under the guise of “reform.”  Whether these reforms will be successful remains to be seen.  Here in New Orleans, the current administration has been planning “reforms” of their own.  The New Orleans reforms look much more like an effort to repeal Civil Service than to make it better.  If the current “reform” package is implemented, we will soon see a return to the spoils system of Huey Long.

At this point in time, no rules changes have been presented to the Civil Service Commission and these “reforms” exist only in the form of the administration’s wish list.  Without changes to the Civil Service Rules (which have the force and effect of law), the administration may be planning the old end-around.

The New Orleans Police Department currently has one active promotional register for the position of Police Lieutenant.  This list has been extended for the final time and will die in May, 2013.  Once this promotional list dies, that will leave the New Orleans Police Department with no active promotional registers.  How do we know that?  Because the Civil Service Department requested $140,000 in its budget to conduct promotional testing in 2013.  We  also know that the funding for promotional testing was denied.  If the budget is approved in its current form, the Civil Service Department will not have any money available to conduct testing for Police Sergeant of Police Lieutenant.

Well, what happens if there is promotional register but there are open positions?  The administration can request permission to make provisional appointments.  Rule VI, Section 5.3(a) allows the provisional appointments.  They are supposed to be limited to a duration of 1 year.  However, recently the New Orleans Fire Department had provisional District Chiefs in place for more than 10 years.  They finally got a promotional register and had to fight with the administration to be able to promote firefighters into permanent positions.

As a practical matter, provisional appointments are troubling for a number of reasons.  As noted above they can last much longer than the 1 year anticipated by the Civil Service rule.  It can also be much shorter.  A provisional employee has no Civil Service protection at that rank.

A provisional Sergeant could be anyone.  The idea of merit for a provisional appointment is solely in the eyes of the Appointing Authority.  But let’s imagine that the Appointing Authority selects the most qualified person available.  Let’s further imagine that provisional Sergeant is faced with an ethical dilemma and despite political pressure that provisional Sergeant chooses to “do the right thing.”  Let’s also imagine the possibility that there is another Sergeant who thinks he can be a provisional Lieutenant or a permanent Lieutenant who thinks he could be a provisional Captain (Major, Commander, or whatever the flavor of the day is) and would benefit from that provisional Sergeant’s demise.  What if that ethical dilemma resulted in adverse media coverage despite doing the right thing.  The provisional employee has no recourse and can be demoted as quickly as promoted.  The only appeal available to the provisional appointee is in the case of discrimination.

What if a permanent Police Officer is made a provisional Sergeant, then a provisional Lieutenant, then a Commander?  Do we really need Commanders who have never had to take a single promotional exam?  Everyone will be screaming for the return of the merit system if that happens.

The Civil Service rule regarding provisional appointments exists to allow for the possibility that a department would need to make promotions quickly while they arrange for promotional testing.  That is why there is a 1 year limit on provisional appointments.  The department makes the provisional appointment to fill the immediate need, but in the meantime they are preparing for promotional testing so that a list of eligibles can be developed and permanent appointments can be made from that list.  However, the Civil Service Department was denied funding for new promotional testing in 2013.

The NOPD has already tried to kill the current Lieutenant’s Register.  In May, they will be successful.

The “reforms” being prepared by the administration create a system where promotions can be made with great discretion afforded to the Appointing Authority.  In addition, people can be demoted with great discretion afforded to the Appointing Authority.  The administration has been trying to sell civil servants on the idea of these reforms.  The “survey” conducted in 2012 by the administration was designed to show civil servants that civil servants want the changes proposed by the administration.  It is difficult to sell a system that was designed to promote merit and promise a return to the spoils system.

How does the administration circumvent the Civil Service Rules so they can implement a new spoils system?  The answer is provisional appointments.  The use of provisional appointments allows the Appointing Authority to make promotions with only the approval of the Civil Service Director.  If the administration refuses to fund promotional testing, it is not difficult to imagine circumstances where the Civil Service Director would have no choice but to allow provisional appointment even though to do so is adverse to the merit based Civil Service System.  We have dedicated Civil Service Director and Staff.  However, if the administration continues to cut their budget, which they have done consistently for the last several years, they will eventually create an emergency system which warrants provisional appointments (or the implementation of the administration’s reforms since they have funded a Human Relations Department).

All Civil Service employees should be wary of these reforms.  These are not tweaks designed to improve the efficiency of the system while maintaining the merit-based Civil Service system.  Don’t be an accomplice to circumventing the Civil Service Rules in the name of reform.  Police employees should be wary of accepting provisional appointments. You could be a provisional sergeant one day and a patrolman the next, working hand in hand with the officers you just had to write up.  Our current system may not be perfect.  It could probably use some updating and efficiency engineering.  However, it is preferable to having to suck up to the ward boss so Baby Huey doesn’t kick you out of the door.