MUBASHIR MAQBOOL * NO. 2025-CA-0221
VERSUS * COURT OF APPEAL
CIVIL SERVICE * FOURTH CIRCUIT COMMISSION * STATE OF LOUISIANA
*******
APPEAL FROM CITY CIVIL SERVICE COMMISSION ORLEANS NO. 9691 Hearing Examiner Mark Surprenant ****** Judge Rachael D. Johnson ****** (Court composed of Judge Daniel L. Dysart, Judge Paula A. Brown, Judge Rachael D. Johnson, Judge Karen K. Herman, Judge Nakisha Ervin-Knott)
DYSART, J., DISSENTS AND ASSIGNS REASONS
Mubashir Maqbool 5752 Bellaire Drive New Orleans, LA 70124
APPELLANT
Christina L. Carroll CITY OF NEW ORLEANS CIVIL SERVICES COMMISSION 1340 Poydras Street Suite 900 New Orleans, LA 70112
COUNSEL FOR DEFENDANT/APPELLEE
VACATED AND REMANDED October 14, 2025 RDJ PAB Appellant, Mubashir Maqbool, appeals a November 8, 2024 decision of the KKH NEK New Orleans Civil Service Commission (“the Commission”) denying his request
for retroactive “extraordinary qualifications” pay pursuant to Civil Service Rule
IV, § 2.7. For the following reasons, we vacate the decision of the Commission and
remand with instructions.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The New Orleans Sewerage and Water Board (“SWB”) promoted Appellant
to the position of Senior Principal Engineer in December 2021. At that time,
Appellant had 37 years of professional engineering experience and 34 years of
supervisory experience, which SWB considered to be “extraordinary or superior
qualifications.” Appellant and SWB verbally agreed that SWB would request a
starting salary above the minimum hiring rate for Appellant due to his
qualifications. As per Civil Service Rule IV, § 2.7(a), an appointing authority (such
as SWB) must request an employee’s “extraordinary qualifications” pay from the
Commission. Appellant accepted the Senior Principal Engineer position, believing
that SWB would request a 3.75% salary adjustment on his behalf.
1 Appellant presumed that he was receiving the mid-level “extraordinary
qualifications” pay throughout 2022 until January of 2023. However, upon
reviewing his salary details in June 2024, he realized that he had not been receiving
the “extraordinary qualifications” pay. Appellant brought this issue to the attention
of Steven Giang, Manager of the SWB Network Engineering Department. Mr.
Giang admitted to his oversight of failing to formally request Appellant’s
“extraordinary qualifications” pay in a June 5, 2024 inter-office memorandum to
the SWB Human Resources Director:
This memorandum is to let you know that inadvertently I missed sending a formal memo requesting mid-point salary to [Appellant] when he was promoted to a Senior Principal Engineer position within the Network/Drainage Engineering Department back in December 2021. We had agreed to grant him a mid-point salary above the minimum hiring rate of $96,370.00 at the time of his interview for Senior Principal Engineer position. As his credentials justify in granting him a mid-point salary. [sic].
It was an oversight by me that the requisite paperwork was not submitted along with his promotion documents.
...
I am requesting you to adjust his base salary from the hiring date of December 20, 2021, with a base salary of $112,306.00, midpoint of pay grade 98.
There were no other candidates on the register for a Senior Principal Engineer with the same or equivalent extraordinary qualifications as [Appellant] at the time of his promotion.
The SWB Human Resources Director informed Appellant that the
Commission Personnel Director is ultimately in charge of granting an increased
pay rate and that she opposed his retroactive pay increase. The Commission
Personnel Director interpreted the phrase “upon appointment”1 in the preamble of
1 The preamble to Civil Service Rule IV, § 2.7 states that, “[s]ubject to the revocation of the
Personnel Director, an appointing authority may pay an original, temporary, provisional or
2 Civil Service Rule IV, § 2.7 to preclude any retroactive awarding of “extraordinary
qualifications” pay, even if the pay was warranted at the time of appointment.
On September 13, 2024, Appellant appeared at a regular Commission
meeting to appeal the Commission Personnel Director’s denial of the retroactive
pay. The minutes of the meeting show that the Commission did not consider any of
Appellant’s supporting documentation because it was dated after the time of his
appointment.
Specifically, the Commission refused to consider a September 5, 2024 email
from David Callahan, the SWB Chief Administrative Officer, to the Commission
Personnel Director. Though the Commission did not consider this email at its
September 13, 2024 meeting, its contents are relevant and state the following:
We believe it necessary to go on the record to further emphasize that our internal review of the circumstances determined that [Appellant’s] supervisor, through an administrative error/oversight, failed to submit the form required. We believe that [Appellant] possessed the qualifications exceeding minimum requirements at the time of the promotion, and his departmental leadership supported the action at that time as affirmed by his Executive Department Head. The omission/error was through no fault of [Appellant].
We wish to ensure this information (via this e-mail) is made available to the Commission, to the extent it may assist or inform any decision the Commission chooses to make on the matter.
(Emphasis added).
The Commission concluded that “[i]n terms of what the rule requires to
reward someone with extraordinary qualifications pay, neither the department nor
[Appellant] has provided sufficient documents that would justify retroactive
application of superior qualifications pay.” Consequently, the Commission
deferred consideration of Appellant’s request so that Appellant and SWB could
regular employee a pay rate of up to the midpoint of the pay range upon appointment, subject to the following conditions and limitations: . . . .” (emphasis added).
3 provide dated documentation from December 2021 evidencing SWB’s intent to
request the extraordinary qualification pay at the time of Appellant’s appointment.
The Commission revisited Appellant’s request during its November 8, 2024
regular meeting. There, the Commission Personnel Director informed the
Commission that Appellant and SWB were unable to locate the requested relevant
documentation from 2021. For that reason, the Commission unanimously denied
Appellant’s request.
On appeal, Appellant raises two assignments of error. The dispositive issue
is whether the Commission erred in denying Appellant retroactive extraordinary
pay, despite his superiors and the Commission determining that he possessed the
minimum qualifications, experience, and/or credentials required, in violation of
Civil Service Rule IV, § 2.7(a).
STANDARD OF REVIEW
Decisions of the Commission are “subject to appellate review on any
questions of fact or law.” Smith v. Civ. Serv. Comm’n, 2019-0393, p. 3 (La. App. 4
Cir. 11/27/19), 286 So. 3d 458, 460 (quoting Winford v. Dep’t of Police, 2009-
0770, p. 4 (La. App. 4 Cir. 3/3/10), 33 So. 3d 949, 951). On appeal, this Court
reviews the Commission’s findings of fact under the “clearly wrong or manifest
error standard of review,” Fuentes v. Dep’t of Civ. Serv., 2019-1045, p. 2 (La. App.
4 Cir. 5/13/20), 300 So. 3d 40, 41 (quoting Liang v. Dep’t of Police, 2013-1364, p.
8 (La. App. 4 Cir. 8/20/14), 147 So. 3d 1221, 1225), and accords “great deference”
to Commission decisions regarding mixed questions of law and fact. Fuentes,
2019-1045, p. 2, 300 So. 3d at 41 (quoting Orazio v. Dep’t of Police, 2019-0230, p.
7 (La. App. 4 Cir. 6/19/19), 275 So. 3d 340, 345, writ denied, 2019-01174 (La.
10/15/19), 280 So. 3d 609).
4 “[W]hen the Commission's decision involves legal issues such as
jurisdiction, procedure, and interpretation of laws or regulations, ‘appellate courts
give no special weight to the findings of the trial court, but exercise their
constitutional duty to review questions of law and render judgment on the record.’”
Orazio, 2019-0230, p. 8, 275 So. 3d at 345 (alteration in original) (quoting Achord
v. Dep’t of Fire, 2018-0635, pp. 4-5 (La. App. 4 Cir. 12/27/18), 318 So. 3d 816,
819).
“[T]he appropriate standard of appellate review of actions2 by the Civil
Service Commission is to determine whether the conclusion reached by the
Commission is arbitrary or capricious.” Daisy v. Plaquemines Par. Gov’t, 17-0076,
p. 4 (La. App. 4 Cir. 8/30/17), 226 So. 3d 560, 563 (alteration in original) (quoting
Aucoin v. Dep’t of Police, 16-0287, p. 4 (La. App. 4 Cir. 3/29/17), 229 So. 3d 531,
533). “‘Arbitrary and capricious’ means that there is no rational basis for the action
taken.” Id., 17-0076, p. 5, 226 So. 3d at 563 (quoting Williams v. Dep’t of Utils.,
03-1473, p. 6 (La. App. 4 Cir. 1/28/04), 867 So. 2d 26, 30).
Here, the Commission contends that Appellant’s assignment of error
addresses a factual determination or an interpretation of fact and law, thus invoking
the “manifest error/clearly erroneous” standard of review or warranting “great
deference” to the Commission’s decision. However, at issue in this case is not
whether the Commission correctly interpreted Appellant’s evidence, which would
involve a finding of fact and would accordingly invoke the clearly erroneous
standard. Rather, the question is whether the Commission should have considered
Appellant’s evidence at all in making its decision, thus involving review of an
2 According to the federal Administrative Procedure Act, “‘agency action’ includes the whole or
a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13).
5 agency’s reasoning for its action. Accordingly, the arbitrary and capricious
standard of review applies.
DISCUSSION
Civil Service Rule IV, § 2.7(a) provides:
Extraordinary or Superior Qualifications, Experience, Credentials
Subject to the revocation of the Personnel Director, an appointing authority may pay an original, temporary, provisional or regular employee a pay rate of up to the midpoint of the pay range upon appointment, subject to the following conditions and limitations:
(a) That the appointee possesses extraordinary or superior qualifications/credentials above and beyond the minimum qualifications, experience, and/or credentials required which have been verified and documented as job related, and that the amount of additional pay shall be justified based on an objective analysis of the additional financial advantage the increased hiring rate will provide to the city.
The parties agree that the phrase “upon appointment” within the preamble of
Civil Service Rule IV, § 2.7 means that an appointing authority must request
extraordinary qualifications pay at or around the time of the employee’s
appointment. However, the crux of Appellant’s assignment of error rests on
whether the proof he provided of SWB’s intent to request the extraordinary
qualification pay at the time of his appointment is sufficient. Appellant argues that
he met the relevant criteria to be granted the requested pay, as evidenced by the
documentation he presented at the Commission’s September 13, 2024 meeting.
While the Personnel Director and the Commission determined that only
documentation created during December 2021 is sufficient, this Court disagrees.
6 The Commission premises its position on: (1) policy considerations, (2) case
precedent, and (3) the notion that granting Appellant relief would amount to an
exception to Civil Service Rule IV, § 2.7.
The policy considerations the Commission cites are “the potential for
appointing authorities to engage in political favoritism using extraordinary
qualifications pay” and “concerns about abuse and prohibited donations.” Though
Civil Service Rule IV, § 2.7 is surely designed to uphold this valid and compelling
public policy, it is unclear why only evidence created in December 2021 would be
adequate to safeguard against abuse and political favoritism. Moreover, there is
nothing in the record to suggest that SWB is engaging in political favoritism or that
there are concerns regarding abuse and prohibited donations.
The Commission primarily relied upon two cases to illustrate its historical
reluctance to award retroactive “extraordinary qualifications” pay: Fuentes, 2019-
1045, 300 So. 3d 40, and Smith, 2019-0393, 286 So. 3d 458. Each of these cases
are factually distinguishable from the case sub judice. Both involve Rule IV, §
2.7(d), which requires that employees with the same or equivalent credentials
receive the same pay.
In Fuentes, this Court affirmed the Commission’s application of Rule IV, §
2.7(d), determining that an employee was not entitled to a compensation
adjustment to match that received by another employee. 2019-1045, pp. 3-4, 300
So. 3d at 42. Mr. Fuentes was the Personnel Division Chief of the Human
Resources Department for the New Orleans Department of Parks and Parkways.
He requested that his qualifications, experience, and credentials be considered in
comparison to those of Mr. Matthews, the Personnel Division Chief of the Human
Resources of the New Orleans Public Library. Mr. Fuentes asserted that because he
7 occupied the same job classification as Mr. Matthews, his salary should be
adjusted to match Mr. Matthews’. Id. at p. 1, So. 3d at 41. The Commission found
that Mr. Matthews, who had a Master’s degree and 30 years of experience, was
more qualified and had more relevant experience than Mr. Fuentes, who had a
Bachelor’s degree and 15 years of experience. Accordingly, the Commission
denied Mr. Fuentes’ request for increased pay based upon “extraordinary
qualifications.” Id. at p. 2, So. 3d at 42. On appeal to this Court, we held that the
Commission was not clearly wrong in making this determination and affirmed the
Commission’s decision. Id. at pp. 3-4, So. 3d at 42.
In Smith, this Court affirmed the Commission’s application of Rule IV, §
2.7(d), declining to award retroactive extraordinary pay. 2019-0393, p. 6, 286 So.
3d at 461. There, Department of Civil Service Personnel Administrator Ms. Smith
requested consideration of retroactive extraordinary pay based on the fact that a
New Orleans Police Department Human Resource Administrator, Mr. Pierce, was
receiving a higher salary than her. Ms. Smith asserted that the two possessed the
same or similar qualifications, experience, and/or credentials and occupied
positions in the same job classification. Id. at pp. 2-3, 286 So. 3d at 458-59. The
Commission “recognized Appellant was a valued employee and, for that reason,
increased [Ms. Smith’s] pay as an exception to Rule IV, § 2.7(d).” Id. at p. 6, 286
So. 3d at 461. However, the Commission did not award this pay retroactively, so
Ms. Smith appealed to this Court. On appeal, to determine whether Rule IV, §
2.7(d) should have been applied retroactively, this Court laid out the job
descriptions of both employees and demonstrated that Mr. Pierce indeed had more
duties and responsibilities than Ms. Smith. Since the two employees did not
occupy positions in the same job classification, the circumstances did not trigger
8 application of Rule IV, § 2.7(d). Id. at pp. 5-6, 286 So. 3d at 460-61. Accordingly,
this Court stated that the Commission was not clearly wrong or manifestly
erroneous for declining the Appellant’s request for retroactive pay. Id. at p. 6, 286
So. 3d at 461.
Fuentes and Smith are not analogous to the instant matter, given that those
cases involve a Rule that is triggered by circumstances not present in the case sub
judice. While § 2.7(d) requires that employees with the “same or equivalent”
credentials receive the same pay, § 2.7(a) simply states that employees with
extraordinary qualifications can receive a starting pay rate of up to the midpoint of
the pay range upon appointment.
Further, the Fuentes Court did not address the issue of retroactive pay
whatsoever. Mr. Fuentes was merely “requesting an increase in pay to match that
received by” Mr. Matthews; no mention is made of retroactive pay. Id. at p. 1, So.
3d at 41. Though the Commission used this case to illustrate its reluctance toward
awarding retroactive pay, the case does not demonstrate this.
Similarly, although the Smith case includes a party who is requesting
retroactive pay, this Court’s affirmation of the Commission’s denial to grant the
retroactive pay was on grounds unrelated to the retroactivity of the pay. Instead,
the reasoning for denying Ms. Smith’s request was based on the fact that the
employees did not occupy positions within the same job classification, as
demonstrated by the duties and responsibilities of Ms. Smith’s job compared to
those of Mr. Pierce’s. The increased pay which the Commission awarded her was
based upon her individual value as an employee and not to comport with the
requirements of Rule IV, § 2.7(d). In fact, the reasoning of this case never
mentioned the policy considerations which the Commission included in its brief,
9 suggesting that the Commission did not consider relevant the potential for abuse or
political favoritism.
The Commission also argues that granting Appellant relief would
improperly create an exception to Rule IV, § 2.7(a). The Commission avers that
because the Rule states that an appointing authority must pay the “extraordinary
qualifications” pay “upon appointment” (subject to the revocation of the
Commission Personnel Director), this means that any retroactive awarding of the
pay would create an exception to the Rule.
It is more accurate to say that Appellant seeks retroactive application of Rule
IV, § 2.7(a) in order to receive pay to which he was entitled, yet did not receive
through no fault of his own. The language of the Rule does not bar retroactive
application if the necessary conditions were present at the time of the appointee’s
appointment. Appellant’s attempt to provide documentation (specifically, Mr.
Giang’s memorandum and Mr. Callahan’s email) to the Commission was to prove
that the necessary conditions were indeed present at the time of his appointment.
The Commission’s argument that Appellant seeks an exception to Rule IV, §
2.7(a) belies its original position, namely, that the proof Appellant presented did
not meet the requirements of Rule IV, § 2.7(a). As is reflected in the Commission
meeting minutes, the Commission was not concerned that retroactive application of
the Rule would improperly create an exception, but rather, it was concerned that
Appellant did not have sufficient proof to properly justify retroactive application.
Thus, if Appellant had presented the Commission with what it considered to be the
“right” proof, it would seemingly have applied the Rule retroactively without
concern of creating an exception.
10 This Court does not find the Commission’s arguments on appeal compelling.
In its arguable attempt to avoid creating an exception to the Rule, the Commission
invented an unnecessary threshold which any evidence must meet in order to prove
that the requirements of the Rule applied when Appellant was appointed.
Messrs. Giang and Callahan avowed in no uncertain terms SWB’s intent to
request the “extraordinary qualifications” pay at the time of Appellant’s
appointment. The only aspect of this evidence that the Commission regarded as
insufficient was the date of creation of Mr. Giang’s memorandum and Mr.
Callahan’s email, since both were created after Appellant’s appointment. As stated
above, the Commission contended at its September 13, 2024 meeting that “[i]n
terms of what the rule requires to reward someone with extraordinary
qualifications pay, neither the department nor [Appellant] has provided sufficient
documents that would justify retroactive application of superior qualifications pay”
(emphasis added). Yet, Rule IV, § 2.7 does not require an appointing authority
seeking a pay increase for its appointee – whether at the time of appointment or
retroactively – to produce documentation dated at the time of appointment to
illustrate the appointing authority’s intent to request “extraordinary qualifications”
pay. The Commission never references a specific part of the Rule that supports this
strict evidentiary requirement. As such, it is unclear why the Commission
concluded that only documentation created at the time of appointment is relevant
or reliable for purposes of retroactive application.
Despite its intent to safeguard against abuse and political favoritism, the
Commission’s proposed application of Rule IV, § 2.7 leads to inequitable results
under the unique facts of this matter while also ignoring alternative methods to
ensure that the evidence produced is authentic. For example, the Commission
11 could have allowed SWB to provide an affidavit attesting to its intent to request the
pay at the time of Appellant’s appointment. The Commission’s argument leads to
the position that any evidence created after an event is unreliable and should not be
taken into consideration, which goes against the widely accepted use of post hoc
evidentiary devices such as affidavits, depositions, and testimony.
The Commission’s refusal to consider any evidence from after December
2021 showing SWB’s intent to request the extraordinary qualifications pay on
behalf of Appellant was arbitrary and capricious. As stated above, the threshold for
“arbitrary and capricious” is that the agency had “no rational basis for the action
taken.” The Commission refused to consider the supporting evidence that
Appellant presented (i.e., the documents from his supervisors and superiors at
SWB) and instead created a condition that any evidence must be from December
2021 to be valid without providing any clear reasoning. The Commission’s
determination that Appellant’s evidence did not meet its excessive standard, and
then denying Appellant’s request on that basis, was arbitrary.
DECREE
For the foregoing reasons, the Civil Service Commission’s November 8,
2024 decision, denying Mubashir Maqbool’s request for consideration of the
Sewerage and Water Board’s prior request to award retroactive “extraordinary
qualifications” pay for Mubashir Maqbool, is vacated. This matter is remanded to
the Civil Service Commission for the purpose of considering the documentation
presented by Appellant to determine whether he qualifies for extraordinary
qualifications pay pursuant to Civil Service Rule IV, § 2.7(a).
VACATED AND REMANDED WITH INSTRUCTIONS