Orleans Parish Civil District Court Judge Ethel Julien on Wednesday stymied an effort by three of the city’s largest employee associations seeking to block key provisions of Mayor Mitch Landrieu’s Great Place to Work Initiative from taking effect. Julien, who denied a temporary injunction against the city, said that the lawsuit was premature because no city employees had yet been harmed by Landrieu’s overhaul to city personnel rules.
Julien said claims by the Fraternal Order of Police, the Police Association of New Orleans and the New Orleans Firefighters that a key change to rules on hiring and promotions would allow departmental managers to hire and promote less qualified employees was, at this point, “hypothetical” and “speculative.”
“We are pleased with today’s ruling and are eager to join the Civil Service Commission in implementing the Great Place To Work Initiative. These more modern rules are going to make City government work better for our employees and the citizens we serve,” Landrieu spokeswoman Garnesha Crawford said in a written statement.
However, Julien’s decision Wednesday does not close the door on further legal action from the groups. Ted Alpaugh, an attorney for the Fraternal Order of Police, said the group would pursue the matter as soon as it can demonstrate harm.
In late August, just days after the New Orleans Civil Service Commission voted to approve the Great Place to Work Initiative, the Fraternal Order of Police filed the suit. At the center of the group’s argument was the elimination of the “rule of three.”
Until the August vote, the rule required the city’s personnel director to forward only the top three candidates — ranked by exam scores and job status — to hiring managers with open jobs. The suit argued that the old rule was essential to merit-based, rather than politically based, hiring and that it was based on language in the Louisiana State Constitution. Therefore, eliminating it would be unconstitutional. Julien did not rule on constitutionality at Wednesday’s hearing.
The Police Association and the firefighters’ union later joined the FOP as plaintiffs. In September, Judge Kern Reese approved a temporary restraining order blocking the new rules from taking effect pending a hearing on a preliminary injunction. The temporary restraining order was set to expire on Wednesday.
As a result of the lawsuit, the Civil Service Commission later voted to reinstate a modified version of the rule. However, this time, it set three candidates as the minimum, still allowing managers to choose from any number of candidates, not just the top scorers.
Though Alpaugh said that several officers who submitted affidavits in the suit have taken the lieutenant’s exam, none of the named plaintiffs is up for promotion.
At Wednesday’s hearing, attorney Kim Boyle, who is representing the commission, argued that because no top candidate had yet been passed over for promotion, the suit was based on “generalized fears, hypothetical situations.”
“None of them have come to court and said, ‘I am currently a candidate for blank,’ ” Boyle said. “All they’ve come to court and said was ‘I believe. I fear. I’m afraid that A, B, C or D won’t happen.’”
Boyle cited the Louisiana Supreme Court’s 2012 ruling that a lawsuit filed by the Louisiana Federation of Teachers against a state law that allowed the state school board to waive state education regulations for local school boards. The court found that since no teachers had yet been harmed, the suit was filed prematurely.
Julien quickly accepted the argument.
“It’s this court’s belief that as of this time, this matter is not ripe for adjudication,” she said.
“It’s a minor setback at best,” Nick Felton, president of the firefighters’ union, said after the hearing. “While it is a bit of a stalling tactic, we will move on.”
Alpaugh said that the groups will now have to wait until a promotional list comes up and a low-ranked candidate is picked above a high-ranked one.
“Then two things happen: We have to file a lawsuit and we have to get that guy’s promotion yanked,” he said.
Felton said such an outcome — which, he said, would be necessary because of Wednesday’s ruling — would be disruptive to the city, the employees affected and would “clog up the courts.”
“They’re going to have to undo that promotion,” he said. “It’s a mess.”
The police and fire associations’ lawsuit is one of two filed by city employee groups challenging the Great Place to Work Initiative. Another, filed by the Concerned Classified City Employees, is scheduled for a hearing in January, according to court records.
