Judge allows city to revoke promotions of firefighters

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. ••

You can reach at wkenny@bsmphilly.com.

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