NOPD Inspection

On August 18, 2020, N.O.P.D. Sergeant Kevin Seuzeneau sent an NOPDALL email reminding everyone about N.O.P.D. Rule 2, Moral Conduct, Paragraph 1, Adherence to Law. Why would he do that? Doesn’t everyone already know that police officers have to comply with the law? Sure we do.

Sgt. Seuzeneau also reminds everyone that there will be a department-wide inspection coming soon. He follows that up with some municipal traffic ordinances police officers in New Orleans are also familiar with. There are probably plenty of officers who have never experienced a department-wide inspection while employed by NOPD, but this is a good time to prepare.

Sgt. Seuzeneau included the municipal ordinances on driver’s licenses, vehicle registration, license plates, etc. These ordinances are included because these are the things they will be checking. You will likely be asked to produce your driver’s license. They will also check to make sure those licenses are valid. Is your driver’s license suspended because of a dispute with the State of Louisiana over taxes? That is a sustained violation. No license on person? Sustained.

They will also check the cars out in the parking lot. The cars should have license plates affixed to the rear number – not on the rear deck. The registration should be readily available. The brake tag should be valid and there should be valid insurance.

All of these potentially sustained violations are avoidable. Take Sgt. Seuzeneau’s advice and use his email as a checklist. It is not worth the hassle of being sustained for R2P1. If it happens, feel free to call me.

Social Media and Law Enforcement Today

Will Aitchison is an attorney in Portland, Oregon. Will has been involved in representing police officers, police organizations, as well as cities and police departments. Recently, Will published a podcast titled “Ten Rules for Police Officer Social Media Posts.” You can listen to the podcast by clicking here. Will’s 10 rules are worth sharing. Here they are:

  1. Your 1st Amendment rights are limited. You are not going to win by relying on your 1st Amendment rights.
  2. Just because something is an internet meme does not mean you should repost it. If you repost it, then you own it. It is the same as if it came straight from your mouth.
  3. Nothing you post is private. While you should check your privacy settings, anything can be forwarded or screen-shotted.
  4. Before you post, ask yourself “How will my employer react to this post?” If the answer is that they will be annoyed or it will lead to an investigation or discipline, then you should ask yourself if it is worth it. I think if you have to ask if it is worth it, just don’t do it.
  5. Confine posts to purely positive posts — posts that don’t have anything to do with the current law enforcement environment.
  6. Will says if you are in doubt about a post, wait 24 hours – sleep on it. Or you can ask a respected senior officer what they think. Again, I say if you are in doubt, don’t post it.
  7. Think – Who are your online “friends?” Are they a tight-knit group? Or do you have “friends” who live on the other side of the country that you do not know? This relates to #3. Nothing is private.
  8. Can someone figure out that you are a police officer from your profile or some other source? If so, you will be treated as if you posted as a police officer.
  9. Brady says any evidence of discriminatory conduct or bias must be turned over to the defense. Is your post evidence of discriminatory conduct or bias?
  10. Before you post or comment, think about your safety and the safety of your job, family, etc. People will find you.

There have been a couple of disciplinary cases here in New Orleans. These are cases that can be prevented. Think before you click post.

Update to Emergency Rate of Pay May 27, 2020

Listen to my discussion with Tommy Tucker on WWL radio this morning regarding the Emergency Rate of Pay:

Listen to Aaron MIschler’s discussion with Tommy Tucker on WWL radio this morning regarding the Emergency Rate of Pay. Aaron Mischler is President of IAFF Local 632 – the Firefighter’s Union. Aaron has been a good partner in seeking the Emergency Rate of Pay.

Update to Emergency Rate of Pay May 26, 2020

On May 26 the Civil Service Commission met to consider my request on behalf of the Fraternal Order of Police that NOPD officers be paid the Emergency Rate of Pay. On March 25 and April 13, I submitted correspondence to the Civil Service Department and the Civil Service Commission regarding the application of New Orleans Civil Service Rule IV, Section 11.1. You can review the arguments here and here. The issue was initially scheduled to come before the Civil Service Commission at a meeting on May 18. That meeting was rescheduled to May 26.

First, I want to thank everyone who submitted a comment form. All of the comment forms were read into the record during the meeting. The Civil Service Staff read more than 20 comment forms, all in favor of granting the emergency pay.

The meeting was conducted using Zoom. At the Zoom meeting, I was allowed to make comments. You can see my comments here. Once I read my comments into the record, Assistant City Attorney William Goforth made comments on behalf of the City. Basically, the City’s position was that the Mayor did not request that only essential employees report to work as required by Civil Service Rule IV, Sec. 11.1. Mr. Goforth’s argument was that the city was still open for business and that employees working at home — there were essential and non-essential employees who had to report to work. Therefore, Rule 4, Art. 11.1 did not apply. Essentially, their argument was that since there were employees working from home it was not just essential employees reporting to work.

My response to that was that the definition of essential employees was a fluid one based on what was actually happening. There were some employees who were required to work and some employees who were not required to work and paid their salary with civil leave. The only question in my mind is whether those employees working at home were essential employees or not. I think they are not. I think that reporting to work means that an employee reports to a specific location at a specific time. I do not think that includes the employee’s home. However, if the City thinks those people are essential employees, it just increases the number of people eligible for the emergency rate of pay.

The Civil Service Commission voted to deny the request for the emergency rate of pay. It is disappointing that they voted that way. After they voted, I requested that the Commission make note of my intent to seek a writ on behalf of the Fraternal Order of Police. My intention is to take the issue to the 4th Circuit Court of Appeal once I have received a written decision from the Commission.

Update to Emergency Rate of Pay May 21, 2020

The New Orleans Civil Service Commission meeting previously scheduled for May 18 has been rescheduled for May 26 at 10:00 a.m. Click here for an updated agenda. The meeting will be held via Zoom video conferencing or by teleconference. The Zoom meeting will be available at https://zoom.us/j/91443980067 and the teleconference is accessible by dialing 1-213-787-0529 and entering 888712 as the conference code. Again, I am asking all FOP members to submit a comment card.  The comment card should include why you think the Emergency Rate of Pay rule applies or why it should apply to the circumstances surrounding the SARS-CoV-2 pandemic. The comment card is a fillable .pdf file and can be completed on any computer. Once the comment card is completed, it should be emailed to CSNO@NOLA.GOV. If you need to refresh yourself on some of the important issues, you can click here and here.

Update to Emergency Rate of Pay 5-18-20

This morning, I was notified that the Civil Service Commission meeting scheduled for today, May 18, 2020 at 10:00 a.m. was canceled. The reason for the cancellation was that La. R.S. 42:19 requires that all public bodies post a list of meetings at the beginning of each calendar year. This posting is to include the dates, times, and places of such meetings. The Civil Service Commission did that. However, as I am sure everyone reading this is aware, there has been a change in circumstances that required changes to the posted meeting schedule. The law requires that these changes be posted publicly and that is accomplished on the Civil Service website. The Civil Service website was not updated and, therefore, the meeting information was not updated. Therefore, today’s meeting would not have been in compliance with Louisiana’s Open Meetings Laws. I will advise as soon as I learn when the meeting will be rescheduled.

Update to Emergency Rate of Pay 5-16-20

Click here to review the City’s response to my letter on behalf of the FOP. This could come in handy when composing a comment form to email to CSNO@NOLA.GOV.

Instructions for joining the meeting can be found on this Civil Service Commission agenda. The comment form can be downloaded here. Comment forms should be emailed to CSNO@NOLA.GOV before the meeting time.

The Civil Service Commission meeting is scheduled for Monday, May 18, 2020 at 10:00 a.m. and you can join by Zoom or telephone.

Click here and here for a more in-depth discussion of the issue. Finally, for the record, it is not the FOP’s contention that only first responders would be due the emergency rate of pay.

I look forward to hearing your comments on Monday.

Emergency Rate of Pay Hearing

On Monday, May 18 at 10:00 a.m., the New Orleans Civil Service Commission will be meeting. The Commission will be considering my request regarding the Emergency Rate of Pay found in Rule 4, Sec. 11.1. You can attend the meeting using Zoom or on the telephone (213-787-0529 meeting 888712). If you want to make a comment on the matter, you can do so by completing a comment form and emailing it to csno@nola.gov. The Emergency Rate of Pay is item 3 on the agenda. It is really the only substantive item on the agenda. This is only for employees under the jurisdiction of the New Orleans Civil Service Commission.

On April 22, I posted about the Emergency Rate of Pay. Click here to download the arguments I provided to the Civil Service Commission. Click here to download Civil Service Rule IV, Sec. 11.1, Emergency Rate of Pay.

I would encourage anyone who thinks police officers, firefighters, and EMS employees should be getting the Emergency Rate of Pay to submit a comment form.

Civil Service Rule IV, Sec. 11.1 states that when the Mayor declares a state of emergency and the Mayor has “requested only essential employees report to work” then those employees are paid at a rate of one and one-half times their regular rate. Review this document for a more in-depth discussion.

The argument against paying the emergency rate of pay is that there have been non-essential employees working during the state of emergency. This is splitting hairs.

One group of employees was told to report to work as usual. The second group of employees was told they could go home. Some of those employees were allowed to work from home and some were carried civil leave. The March 22 CAO Circular Memo on Limited Operations laid out what employees should do effective March 23.

No matter what you call the two groups of employees, one is reporting to work and one is not. Each time the Emergency Rate of Pay has been effective, that has been the case. In my mind, the only question is whether or not the working-at-home group of employees are part of the essential group or the non-essential group. I believe “report to work” entails physically reporting to work. Employees get an Emergency Rate of Pay because they are exposed to the dangers associated with the state of emergency. Finally, we know that police officers were exposed to the risks created by the coronavirus.

Again, review this memo for a more in-depth review of the Emergency Rate of Pay issues. You can also review this post to review the issues. Finally, I encourage everyone to participate in the Civil Service Commission on Monday, May 18 at 10:00 a.m. I also encourage everyone to complete a comment form and submit it via email to CSNO@NOLA.GOV. Call me with any questions.

NOPD Update – Disciplinary Hearings

Back in March, when the City told non-essential employees to either stay at home or to work from home, the NOPD decided to suspend holding disciplinary hearings due to the potential for sharing the virus which has been plaguing us for all of 2020. Exceptions were made for some who were looking to retire, but, for the most part, there have not been any disciplinary hearings conducted since mid-March. Effective May 16, that is going to change.

On May 16, NOPD will begin holding disciplinary hearings again. On May 16, there will be about 2 months’ worth of disciplinary hearings that have not been conducted. Therefore, there will be a backlog of hearings – probably quite a few hearings.

If you have had a sustained disciplinary investigation, but have not had a disciplinary hearing it might be coming sooner than later.

If you have been issued a “Disciplinary Hearing Notification,” then you should call me so that I can put it on my calendar.

If you have been issued NOPD Form 308, the investigator’s recommended disposition, then you are welcome to call. But the NOPD will not be holding a disciplinary hearing on the date indicated on NOPD Form 308.

Why should you call me about your disciplinary hearing?

I have represented officers in more than 1,000 disciplinary hearings.

Since 90% of NOPD officers are members of the Fraternal Order of Police, and, therefore, the FOP Legal Defense Plan, it is safe for me to assume you are an FOP member.

Most NOPD officers have little to no experience with disciplinary hearings.

I can usually answer whatever questions an officer has about disciplinary hearings. I can give you a good idea of what to expect.

If you think you might want to appeal to the Civil Service Commission, it is helpful for me to attend the disciplinary hearings.

If you do not think there is any point in appealing, then you would be eligible for the FOP’s Salary Reimbursement Option if I represent you at the disciplinary hearing.

Actually, just being able to discuss the pros and cons of appealing and the odds of success is very beneficial in making a plan for moving forward.

In the event you are unfamiliar with the FOP’s Salary Reimbursement Option, it has been utilized by many FOP members.

If you are suspended by the NOPD and you do not believe there is any chance of success on appeal, then the FOP will reimburse you for your lost salary in lieu of an appeal destined to fail. The FOP will reimburse you at a rate of $150/day for up to 5 days.

For example, if you are sustained for violating Rule 4, Performance of Duty, Paragraph 2, Instructions from an Authoritative Source, you could be suspended for between 2 and 10 days. The presumptive penalty for a first offense violation of Rule 4, Performance of Duty, Paragraph 2, Instructions from an Authoritative Source, a Level C violation, is a 5-day suspension. If you know that you actually violated the Rule in question and there is ample evidence that you violated the Rule in question and you would lose a Civil Service appeal, then it might be better to get a check for $750. Of course, there is no way to make blanket statements about which way would be better. That is where a healthy discussion between attorney and client is very beneficial.

To conclude, the NOPD will begin holding disciplinary hearings again on May 16. If you are issued a Disciplinary Hearing Notification, you should call me so that I can attend the hearing with you. Doing so will make you eligible for the FOP’s Salary Reimbursement Option. It does not matter if you called me for the early part of the investigation or not. Having the FOP Salary Reimbursement Option as a fail-safe is always good. I have also found that being able to answer questions about the hearing helps officers feel less anxious about the hearing.

Feel free to call.

Donovan

 

New Orleans Emergency Rate of Pay

On March 11, 2020, Governor John Bel Edwards declared and a Public Health Emergency for the State of Louisiana as it relates to COVID-19. Also, on March 11, 2020, pursuant to a filing in Civil District Court for the Parish of Orleans, State of Louisiana, Mayor LaToya Cantrell declared a State of Emergency for the City of New Orleans. See Mayoral Proclamation of a State of Emergency due to COVID-19.

Mayor Cantrell’s State of Emergency proclamation directs the Superintendent of Police to take command and control over all police officers in the City of New Orleans pursuant to La. R.S. 40:1387 along with all authority typically given by such a proclamation. As a result of the State of Emergency, some city employees were placed on civil leave and told to go home. Another group of city employees was told to go home and perform their regular job duties from home. Finally, a third group of employees was told they had to report to work at their regular place of work.

New Orleans Civil Service Rule IV, Sec. 11.1 states as follows:

If it becomes necessary for an employee (exempt and non-exempt) to work on any day when the Mayor of New Orleans has declared an official emergency and has requested that only essential employees report to work, the appointing authority should adjust the employee’s work schedule to allow another day(s) off during that work period as a substitution. If such a substitution is not possible, then, for working at such time, the employees shall be paid the following:
(a) All non-exempt employees shall be paid at a rate of one and one-half (1½) times their normal rate for all hours worked.
(b) All exempt employees shall be paid at a rate of one and one-half (1½) times their normal rate of pay. Normal rate of pay for exempt employees is defined as the weekly salary.
(c) In situations where the emergency lasts for less than a normal seven day work week, then exempt employees shall be paid at a rate of one and one-half (1½) times their normal hourly rate for all hours worked subject to the maximum allowed for a regular scheduled work day in keeping with Rule I, Number 40. Under no circumstances shall an exempt employee receive pay from this section that exceeds more than one and one-half times his normal weekly salary for an emergency event.
In all cases, this pay is to remain in effect until the Mayor announces the state of emergency has ended or an announcement is made that City offices are open for business and employees are to report to work, whichever comes first.
(d) When the Mayor of New Orleans has declared an official emergency on a day in which city offices remain open for business, exempt and non-exempt essential employees (except for highly compensated employees as defined by the FLSA) who are assigned to perform emergency/disaster field operations duties may receive five (5) percent over their normal rate of pay while engaged in such duties during a declared state of emergency. In cases where the emergency declaration extends beyond four (4) weeks, a request for extension and reasons therefore must be submitted by the Chief Administrative Office or other executive authority to the Civil Service Commission for approval along with an anticipated end date and a list of the essential employees who will remain in the emergency assignment. (amended September 25, 2017, adopted by the Council October 26, 2017)

(Section 11.1 adopted March 28, 1996, ratified by the Council April 18, 1996, amended May 15, 2006, adopted by the Council May 25, 2006, effective June 1, 2006, amended April 28, 2014, adopted by the Council June 2014, effective April 28, 2014)

Since there is a declared State of Emergency and some employees have been required to report to work and some employees were instructed not to report for work and were placed on civil leave, New Orleans Civil Service Commission Rule IV, Sec. 11.1 comes becomes effective as it relates to the pay for those employees required to report for work at their regular duty station.

There is no definition of “essential employees” or “non-essential employees.” However, based on Civil Service Rule IV, Sec. 11.1, we can determine who certainly constitutes an “essential employee” and who certainly constitutes a “non-essential employee.”

Reporting to work implies both the performance of job duties and the location those job duties are performed. Essential employees are those employees who were instructed to report to work at the employee’s regular place of work or another location as designated by the employee’s appointing authority as required to accomplish the employee’s job. Non-essential employees are those employees who are not required to report to any particular location or perform any job duties. Non-essential employees are those employees being carried under civil leave, of who were initially carried under civil leave at the beginning of the state of emergency. There is a third group of employees in the state of emergency related to COVID-19 — those who are working from home.

The emergency rate of pay was introduced to encourage employees to report to work as needed under emergency conditions. In other words, some employees have to come to work in spite of conditions which make reporting to work more dangerous than normal. In addition to merely encouraging employees to report to work as needed, the emergency rate of pay works to fairly compensate those employees who, because their jobs do not allow them to work from home, must expose themselves to the dangerous circumstances forming the basis of the state of emergency.

There is no question that the employees of the NOPD, NOFD, and NOEMS are essential employees. These employees are required to expose themselves to a potentially deadly virus by the very nature of their job. No matter what precautions are taken, our police officers, firefighters, and EMS personnel are required to be exposed to the threat imposed by SARS-CoV-2. In addition to our first responders, any other employee who is required to report to work at their normal place of assignment is an essential employee for the purposes of this declared State of Emergency.

I have heard several reasons why police officers should not get an emergency rate of pay:

Excuse #1: The City has not told essential employees to report to work while telling non-essential employees to stay home. This is not true for the reasons discussed above. There are employees who have been required by the city to physically report to the employee’s regular place of work to perform the employee’s job. There is also a group of employees who were either not required to physically report to the employee’s regular place to work or the employee was not required to perform any work at all while still being paid.

Excuse #2: This is a state of emergency that exists throughout the United States. Police officers around the country are required to work under similar circumstances. FEMA won’t be able to reimburse everyone. Article X, Sec. 10 of the Louisiana Constitution states that civil service rules have the force and effect of law. Therefore, New Orleans Civil Service Rule IV, Sec. 11.1 has the force and effect of law. Civil Service Rule IV, Sec. 11.1 does not state that essential employees are to be paid an emergency rate of pay only if the city is going to be reimbursed for the expenditure.

Excuse #3: Police officers already get extra pay from the State every month. State Supplemental Pay is not emergency or hazard pay. State Supplemental Pay is intended to supplement inadequate salaries offered to law enforcement officers by municipalities or parishes.

First responders exist in the same world as the rest of us. They have to worry about getting sick and bringing the virus into their homes with their families. However, they don’t have the option of working from home like I do, or not having to work at all and relying on civil leave. Finally, they still have to worry about things like getting shot while trying to protect people like me and you — which has happened twice in the last week to three officers.

Civil Service Rule IV, Sec. 11.1, which has the force and effect of law, states that during a declared state of emergency where some city employees are required to report to work in the field at a place determined by the city which is not home while other employees are told to stay home and are not expected to perform any work while being carried civil leave or are allowed to work at home requires that exempt and non-exempt employees who are required to report to work in the field at a place determined by the city must be paid time and one-half (1.5x).

I understand that the COVID-19 emergency has created a great deal of pressure on the city. However, that is no reason not to give city employees what is owed to them by state law. The color of the trip sheet doesn’t matter. Whether or not it is reimbursed doesn’t matter. Some employees are entitled to be paid 1.5x. If the city does not pay its employees what they are owed in this emergency, who is to say they will report to work as expected in the next emergency.

UPDATE: I have already written a letter to the Director of Personnel, Lisa Hudson, at Civil Service. I have asked that the matter be brought before the Civil Service Commission when they conduct a regular meeting. There have been a number of comments referencing a possible lawsuit. However, the Civil Service Commission has sole jurisdiction. So, it will be necessary to bring this issue before the Civil Service Commission before it can go to any court.