Did a Louisiana municipal fire or police appointing authority have to hire the highest scorer on a competitive list?

Plain-English summary

The State Examiner asked the Attorney General to clarify an earlier opinion that treated the highest competitive-test scorer as the required choice for a municipal fire or police vacancy. In February 2016, the AG concluded that the statute required ranking the competitive list by final test score, but allowed the appointing authority to select any person certified from that list.

The AG said its earlier Opinion 97-0039 had failed to read the list-ranking and appointment provisions together. It recalled that opinion to the extent of the conflict. The opinion also said a municipal civil service system was not barred from optionally using scores to break ties.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the top exam scorer have to receive the appointment?

No. The AG wrote that “the names do not have to be selected by that rank” once they were certified for the vacancy.

Did exam scores still matter for the competitive list?

Yes. The opinion said the names had to be placed on the list in order of final test score; its answer concerned the later appointment choice from certified names.

What happened to the earlier AG opinion?

The AG recalled Opinion 97-0039 only to the extent it conflicted with the conclusion that an appointing authority could choose any certified name.

Could a civil service system use scores as a tiebreaker?

The opinion said an optional system using scores as tiebreakers was not prohibited.

Background and statutory framework

The opinion compared the municipal fire and police civil service provision for compiling competitive employment lists with the provision governing certification and appointment from those lists. It treated list order and appointment discretion as separate questions.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/15-0176

Original opinion text

State of Louisiana
DEPARTMENT OF JUSTICE
CIVIL DIVISION
P.O. BOX 94005
BATON ROUGE
70804-9005
Jeff Landry
February 4,2016
Attorney General
Opinion 15-0176

Mr. Robert Lawrence
71-1-1 MUNICIPAL FIRE & POLICE CIVIL SERVICE
State Examiner
La. R.S. 33:2551
Office of State Examiner
La. R.S. 33:2554
8550 United Plaza Boulevard
t.a. RS. 33:2554(D) allows the governing authority to
Suite 901
make an appointment from any name certified on the
competitive employment list. While the names must
Baton Rouge, LA 70809
be ranked by their final test scores, the names do not
have to be selected by that rank under La. R.S.
33:2554(D).
Dear Mr. Lawrence,

Your opinion request sent to our office has been assigned to me for research and reply. Your request concerns provisions of the municipal fire and police civil service law. Specifically, you have asked us to clarify a provision in a previously released opinion, La. Atty. Gen. Op. No. 97-0039. This question is based on how a name is chosen from a competitive employment list to fill vacancies in the municipal fire and police civil service system.

In La. Atty. Gen. Op. No. 97-0039, our office stated:

In contrast, employees who share identical seniority and who attain a passing score on the competitive test are not placed equally on the competitive employment list. LSA-R.S. 33:2551(4) mandates that employees who pass the competitive test are ranked from highest to lowest according to their test scores and not according to seniority. If four employees with identical seniority took a competitive test their names would be placed on the competitive employment list from highest to lowest score. The result is that although all four employees share identical seniority, that factor is irrelevant when compiling a competitive employment list, and the employee with the highest competitive test score would be chosen for the position.

For purposes of the competitive positions, seniority plays no role, and the individual selected must have obtained the highest test score on the competitive exam ... .(emphasis added).

Your request asks our office to clarify this opinion in light of La. R.S. 33:2554(0), which states:

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Opinion 15-0176
Mr. Robert Lawrence
Page 2

O. Certification and appointment from the competitive list shall be limited to those conditions and classifications for which the competitive test may be given as provided by R.S. 33:2552(7). Upon the appointing authority's request for the certification of eligible persons from which it may fill a vacancy, and if the competitive list is the appropriate list from which the names of eligible persons shall be certified, the board shall certify the names of the persons upon that list, in the order in which they appear thereon, for the class in which the vacancy is to be filled. The appointing authority shall select and appoint to the first vacancy to be filled anyone of the persons so certified to it for the vacancy. In making such appointment to entry-level positions, the appointing authority shall give a preference to Louisiana residents. If anyone or more persons so certified refuses the appointment, the appointing authority then shall select and appoint any one of the remaining persons certified by the board. This procedure shall be followed until the position has been filled by appointment of one of the persons certified from the list and willing to accept the appointment, or until each person whose name appears upon the list has in this manner been certified for the vacancy. (emphasis added).

La. R.S. 33:2554(0) provides that the governing authority shall appoint to the vacancy any name certified to it.

Therefore, there is a conflict between La. Atty. Gen. Op. No. 97-0039 and La. R.S. 33:2554(0). La. Atty. Gen. Op, No. 97-0039 failed to read La. R.S. 33:2551(4) in pari materia with La. RS. 33:2554(0). While La. RS. 33:2551(4) requires names on a competitive employment list to be ranked on the list according to the individuals' final test scores, La. R.S. 33:?554(0) allows for the governing authority to appoint anyone of the names certified on the list, regardless of their final test score rank.

In conclusion, it is the opinion of our office that La. RS. 33:2554(0) allows the governing authority to make an appointment from any name certified on the competitive employment list. While the names must be ranked by their final test scores, the names do not have to be selected by that rank under La. R.S. 33:2554(0). Based on the reasoning in Stevens v. City of Baton Rouge, 700 F. Supp. 869 (MD. La 1988), we note that a municipal police and fire civil service system is not prohibited from optionally utilizing a system where scores are used as tie breakers on a competitive employment list. To the extent La. Atty. Gen. Op. No. 97-0039 is in conflict with this conclusion, that opinion is recalled.

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Opinion 15-0176
Mr. Robert Lawrence
Page 3

We hope that this opinion has adequately addressed the legal issues you have raised. If our office can be of any further assistance, please do not hesitate to contact us.

With best regards,

JEFF LANDRY
ATIORNEY GENERAL

BY:--:-:-W''-=--=-:----''------
Je ey M. Wale
A sistant Attorney General

JL: JMW