NOPD Promotions

Before city employees had Civil Service, public employment was dolled out as part of the spoils system.  Politicians often made wholesale changes to the public payrolls when they were elected based solely on the political connections or affiliation of the appointee.  In 1940, following Huey Long and a brief stint by Earl Long as governor of Louisiana, New Orleans attorney Charlie Dunbar proposed a merit based system of employment for public servants.  This effectively eliminated the spoils system and was repealed in 1948 during Earl Long’s second of three appearances in the governor’s mansion.  In 1953, the Civil Service system was made part of the Louisiana Constitution and was continued in the 1974 revision to the Louisiana Constitution.

There have been several relatively recent modifications to the State of Louisiana Civil Service system under the guise of “reform.”  Whether these reforms will be successful remains to be seen.  Here in New Orleans, the current administration has been planning “reforms” of their own.  The New Orleans reforms look much more like an effort to repeal Civil Service than to make it better.  If the current “reform” package is implemented, we will soon see a return to the spoils system of Huey Long.

At this point in time, no rules changes have been presented to the Civil Service Commission and these “reforms” exist only in the form of the administration’s wish list.  Without changes to the Civil Service Rules (which have the force and effect of law), the administration may be planning the old end-around.

The New Orleans Police Department currently has one active promotional register for the position of Police Lieutenant.  This list has been extended for the final time and will die in May, 2013.  Once this promotional list dies, that will leave the New Orleans Police Department with no active promotional registers.  How do we know that?  Because the Civil Service Department requested $140,000 in its budget to conduct promotional testing in 2013.  We  also know that the funding for promotional testing was denied.  If the budget is approved in its current form, the Civil Service Department will not have any money available to conduct testing for Police Sergeant of Police Lieutenant.

Well, what happens if there is promotional register but there are open positions?  The administration can request permission to make provisional appointments.  Rule VI, Section 5.3(a) allows the provisional appointments.  They are supposed to be limited to a duration of 1 year.  However, recently the New Orleans Fire Department had provisional District Chiefs in place for more than 10 years.  They finally got a promotional register and had to fight with the administration to be able to promote firefighters into permanent positions.

As a practical matter, provisional appointments are troubling for a number of reasons.  As noted above they can last much longer than the 1 year anticipated by the Civil Service rule.  It can also be much shorter.  A provisional employee has no Civil Service protection at that rank.

A provisional Sergeant could be anyone.  The idea of merit for a provisional appointment is solely in the eyes of the Appointing Authority.  But let’s imagine that the Appointing Authority selects the most qualified person available.  Let’s further imagine that provisional Sergeant is faced with an ethical dilemma and despite political pressure that provisional Sergeant chooses to “do the right thing.”  Let’s also imagine the possibility that there is another Sergeant who thinks he can be a provisional Lieutenant or a permanent Lieutenant who thinks he could be a provisional Captain (Major, Commander, or whatever the flavor of the day is) and would benefit from that provisional Sergeant’s demise.  What if that ethical dilemma resulted in adverse media coverage despite doing the right thing.  The provisional employee has no recourse and can be demoted as quickly as promoted.  The only appeal available to the provisional appointee is in the case of discrimination.

What if a permanent Police Officer is made a provisional Sergeant, then a provisional Lieutenant, then a Commander?  Do we really need Commanders who have never had to take a single promotional exam?  Everyone will be screaming for the return of the merit system if that happens.

The Civil Service rule regarding provisional appointments exists to allow for the possibility that a department would need to make promotions quickly while they arrange for promotional testing.  That is why there is a 1 year limit on provisional appointments.  The department makes the provisional appointment to fill the immediate need, but in the meantime they are preparing for promotional testing so that a list of eligibles can be developed and permanent appointments can be made from that list.  However, the Civil Service Department was denied funding for new promotional testing in 2013.

The NOPD has already tried to kill the current Lieutenant’s Register.  In May, they will be successful.

The “reforms” being prepared by the administration create a system where promotions can be made with great discretion afforded to the Appointing Authority.  In addition, people can be demoted with great discretion afforded to the Appointing Authority.  The administration has been trying to sell civil servants on the idea of these reforms.  The “survey” conducted in 2012 by the administration was designed to show civil servants that civil servants want the changes proposed by the administration.  It is difficult to sell a system that was designed to promote merit and promise a return to the spoils system.

How does the administration circumvent the Civil Service Rules so they can implement a new spoils system?  The answer is provisional appointments.  The use of provisional appointments allows the Appointing Authority to make promotions with only the approval of the Civil Service Director.  If the administration refuses to fund promotional testing, it is not difficult to imagine circumstances where the Civil Service Director would have no choice but to allow provisional appointment even though to do so is adverse to the merit based Civil Service System.  We have dedicated Civil Service Director and Staff.  However, if the administration continues to cut their budget, which they have done consistently for the last several years, they will eventually create an emergency system which warrants provisional appointments (or the implementation of the administration’s reforms since they have funded a Human Relations Department).

All Civil Service employees should be wary of these reforms.  These are not tweaks designed to improve the efficiency of the system while maintaining the merit-based Civil Service system.  Don’t be an accomplice to circumventing the Civil Service Rules in the name of reform.  Police employees should be wary of accepting provisional appointments. You could be a provisional sergeant one day and a patrolman the next, working hand in hand with the officers you just had to write up.  Our current system may not be perfect.  It could probably use some updating and efficiency engineering.  However, it is preferable to having to suck up to the ward boss so Baby Huey doesn’t kick you out of the door.

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Privacy and Communication for Law Enforcement

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As we have seen previously, law enforcement officer enjoy virtually no privacy with regard to communications made using equipment which belongs to the department.  In fact, some things are recorded and kept for years just in case someone may need to retrieve them later.  These things, like recorded dispatch channels or MDT to MDT chats, are also public records.  However, this data would most likely be accessed by the officer’s own agency.  The data could be accessed for some type of data analysis or for some type of internal investigation.

Today, the New Orleans Police Department updated its regulations on cell phones.  Policy 702, effective today, lays out NOPD policy with regard to agency owned phones and personal phones/tablets.  It clearly states in 702.2 that there is absolutely no expectation of privacy with regard to communication made using departmental equipment.  The bigger question is what are your privacy expectations with regard to a privately owned device.

Phones and tablets are so common-place today that everyone expects the next guy to at least have a cell phone.  Tablets have not quite gotten to that level, but they are more common than ever.  So, the department has decided you can carry it with you, subject to some restrictions.  The department can not unilaterally impose a no right to privacy edict on your personally owned phone.  Or can they?

First of all, the department can limit your use of a device for personal business.  Along with always having a phone with you comes the fact that people always have your phone number.  They may not have your working schedule.  So, what is allowable with regard to personal phone calls?

The regulation gives some guidance.  You can call your wife to let her know you will be late getting home from work.  You can answer a call from your wife in the event of a family emergency.  Can you call your wife to discuss your son’s failing grade in math?  Probably not.  I suggest thinking about it as if you were sitting on the desk.  What would be an acceptable amount of time to spend on the phone conducting personal business?  The answer is probably not much.

Can you conduct official business on a personal phone?  I think the answer is maybe.  You   can certainly use it for emergencies if you are unable to use the radio for some reason.  Platoon personnel have to be careful not to use the phone for what you would otherwise use the radio (dispositions, callbacks, etc.).  You can not use bluetooth ear pieces.  You can not text while you are driving.

Again, the big question is privacy.  I think the answer is that if the communication is of an official nature, it is likely that the department can and will order you to relinquish the information.  That includes phone records, text messages, or whatever.  You can probably redact your personal information.  However, if the official business is a disciplinary action because an officer was using the phone for personal business while standing on the parade route, then suddenly your personal business, which you may have otherwise enjoyed a privacy interest, may become official business and be subject to disclosure.

I know this all sounds grim.  Police officer enjoy less of a First Amendment right than your average citizen.  Police officers enjoy less of a privacy interest than your average citizen.  You would need a search warrant to obtain that kind of information from a private citizen during the course of an investigation.  This, however, is the current state of the law.

Finally, with the Sugar Bowl, Mardi Gras, and Super Bowl XLVII around the corner, it would probably be to everyone’s benefit to be familiar with all of the regulations found in Policy 702, particularly 702.5.  I see DI-1’s in the near future.

NOPD Disciplinary System and FOP Legal

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The NOPD disciplinary system has been in a state of flux ever since the most recent change in administration. It continues to change today because of the looming consent decree as well as the development of the Independent Police Monitor program and other factors. The one thing that has not changed is the FOP Legal Defense Plan.

The Fraternal Order of Police, Crescent City Lodge guarantees its members a legal defense for administrative and criminal investigations originating from on-duty incidents and those off-duty incidents which are in the scope of employment. Coverage limited to $3000.00 in legal fees is also available for those off-duty administrative or criminal investigations originating from “out of scope” incidents. Civil defense is available as well, but coverage is a bit more complicated. If you have a question about civil coverage, call one of the FOP attorneys or Jim Gallagher and we will analyze your particular situation.

The Crescent City Lodge also offers two hours of legal services for any legal services that may be required. This can be used for anything, but it has been very useful in preparing wills, living wills, power of attorney, and other common legal documents. It can also be used to help defray the cost of more complicated legal issues such as successions, divorces, etc. The FOP also offers complimentary notary services to members of the Crescent City Lodge.

In addition, each of the FOP attorneys offers a full range of legal services. For example, Livaccari Villarrubia Lemmon, my firm, has been practicing personal injury law, first on the defense side and now on the plaintiff side, for over thirty years. We have represented numerous police officers in automobile accidents, motorcycle accidents, etc., and would be more than happy to represent you if you need it. When you drive a car eight hours a day, it is inevitable that you will be involved in an accident. On-duty accidents are often challenging for people because worker’s comp issues and other things can get complicated. We can help with that. We will also be happy to extend similar courtesies to any of your family members if they need representation.

Your FOP attorneys have been involved with law enforcement and the FOP for a long time. I worked for the NOPD for 15 years before entering full-time practice, and have worked for FOP members since the day I passed the bar exam. Ray Burkart is a former NOPD officer as well. Claude Schlesinger is also a retired NOPD Lieutenant and Ted Alpaugh, who is partnered with Claude has been representing FOP members for years. Together, we can help with almost anything.

It is more important than ever to secure representation for NOPD disciplinary investigations. PIB has recently moved away from using the DI-3 to document complaints that do not have any merit. These investigations will be handled as DI-1 (formal disciplinary investigations) investigations. This is also a provision of the proposed consent decree. Undoubtedly the result will be an increased number of DI-1 investigations.

Recently, the NOPD made Police Officer II promotions. Out of the 315 people who applied, 208 were actually promoted. The 107 officers not promoted were passed over because of open disciplinary investigations or sustained violations within the last 12 months. A few we’re passed over because of undocumented sick leave. The FOP was able to assist a number of those officer who were passed over to become eligible for promotion and hopefully those officers will be promoted soon. Chief Serpas told me that he plans on making Police Officer III and Police Officer IV promotions next year. The money is in the budget for these promotions.

If you are going to have the time to be promoted to Police Officer III or Police Officer IV next year, it would be in your best interest to go to PIB and obtain a copy of your PIB Short Form occasionally to make sure you do not have any open or lingering investigation. It will also pay dividends to document any sick leave usage. You can document sick leave usage by bringing a Form 50 to your supervisor after returning from sick leave. In doing so, you will insure that sick leave does not interfere with details or promotions. You are allowed 8 undocumented sick leave instances in a calendar year. Best to document any sick leave usage if possible.

Call your FOP attorney if you are involved in an incident that you know is going to result in a complaint. Call your FOP attorney if you receive a Notice to Render Statement. Call your FOP attorney if you receive a letter from Civil Service. If you forget to call your FOP attorney right away, call later. Better late than never. Calling your FOP attorney will provide you with years of experience in disciplinary investigations, civil service appeals, and appeals to the a Fourth Circuit.

Your FOP attorneys can be contacted as follows:

Donovan Livaccari
Livaccari Villarrubia Lemmon LLC
Cell: 504-905-8280 (voice or text)
Office: 504-488-3702
Email: dal@livlaw.com

Ray Burkart, III
Burkart and Associates
Cell: 504-920-0075
Office: 985-893-2657
Email: raymond@banda.microsoftonline.com

Claude Schlesinger
Guste Barnett Schlesinger Henderson & Alpaugh
Cell: 504-920-4477
Office: 504-529-4141
Email: cas@gustebarnett.com

Ted Alpaugh
Guste Barnett Schlesinger Henderson & Alpaugh
Cell: 504-481-1844
Office: 504-529-4141
Email: cta@gustebarnett.com