Amid uncertainty among Philadelphia’s chief personnel executive and leaders of the city’s Fire Department, a judge on Friday refused to block the Nutter administration from revoking the recent promotions of 14 firefighters.
The ruling by Common Pleas Court Judge Leon W. Tucker will allow the city to demote five captains to the rank of lieutenant as well as nine lieutenants to the rank of firefighter. All 14 had been promoted shortly after a May 14 ruling by the same court.
A lawsuit originally filed by the city’s firefighters and paramedics union led to the initial court order. In the suit, the union argued that the city was obligated to fill vacancies in the Fire Department hierarchy using candidates on active promotions lists. Those lists have since expired and been replaced by new lists.
After the May 14 ruling, the Nutter administration appealed to Commonwealth Court and won last month. On Sept. 23, the Fire Department sent a memo to the 14 affected firefighters instructing them to report to Commissioner Lloyd Ayers’ office to surrender their new badges and employee ID cards.
The city’s personnel director, Albert D’Attilio, testified during a three-hour hearing in Tucker’s City Hall courtroom last Wednesday that he was still at a loss how to handle the demotions, which he described as unprecedented in his five-year tenure.
“We are in unchartered waters,” D’Attilio said. “I think we’re outside the [civil service] regulations, outside the [Home Rule] Charter and have been since May 14.”
Ayers, a 39-year Fire Department veteran, described the promotion/demotion scenario as “new territory for me.”
Joe Schulle, president of the city’s firefighters and paramedics union, vowed that the union would continue fighting the demotions in court. The litigation will join a growing list of legal disputes between the city and Local 22 of the International Association of Fire Fighters, which represents about 1,900 active employees and 2,100 retirees from the Fire Department.
“These 14 members earned their promotions,” Schulle said. “There was never any ‘temporary’ tag applied to their promotions, no matter what rhetoric the city administration spins to the contrary. We will continue to fight this latest injustice in the court of law.”
During last Wednesday’s hearing, several firefighters testified that they understood their May promotions to be permanent, not temporary. Initially, Ayers handled the promotions individually and privately in his office, but later included the 14 supervisors in a public promotion ceremony at the Fire Academy on July 17 with their families and friends in attendance.
The commissioner swore all 14 into their new ranks at both ceremonies. In Ayers’ office, the Fire Department’s human resource director, Karen Hyers, handed each promotee a form letter from the city Law Department warning each that the promotion might be rescinded if the city were to win its appeal of the May 14 Common Pleas Court ruling. Three firefighters testified that Hyers and Ayers described the potential demotions as unlikely.
“Karen mentioned to me, ‘This is something we talked about, we discussed, and we don’t foresee any demotions. It would be in bad taste,’ ” said Mark Prendergast, who was promoted to captain.
“[Ayers] did tell me, ‘This is a thousand miles off.’ It was something from the Law Department,” said Ronald Showsky Jr., who was promoted to captain. “[Ayers’] exact words to me were, ‘The powers that be handed this down.’ ”
Hyers denied that she assured any of the firefighters that the demotions would not come to pass, although she tried to encourage the affected firefighters, many of whom she considered her friends.
“I never told them they would not be demoted,” Hyers testified. “I tried to put a positive spin on it. I knew there was a possibility they were going to be demoted.”
Ayers testified that Hyers handed out the letters, not him.
D’Attilio testified that his office recorded the promotions as standard, nontemporary. As such, the city would have a six-month window to rescind the promotions under the city’s civil service regulations, he said.
However, D’Attilio proposed changing the designation of each promotion to “temporary,” a designation that would allow each firefighter to keep additional wages earned and to return to his prior rank without stigma on his personnel record.
Tucker, in last week’s order, noted that the city’s civil service regulations do not apply in the case because the firefighters were promoted pursuant to the court’s May 14 order, a ruling that was overturned by Commonwealth Court upon the city’s appeal.
The Fire Department is planning to conduct a new round of promotions later this month using the new promotion lists, but none of the affected firefighters are on those lists, Ayers said. Promotions testing occurred after the 14 were promoted. Thirteen of them signed up for the new exams, but 10 didn’t follow through with the testing process and three did not pass, Ayers said.
Several affected firefighters testified that they believed they were ineligible for the new promotions lists because they already had been promoted. ••