Periodically, I like to take a moment to make sure people are up to speed on the status of formal disciplinary investigations for NOPD and the benefits provided by the FOP Legal Defense Plan.
The federal consent decree entered into by the City of New Orleans and the Dept. of Justice requires that complaint classification be “allegation-based” as opposed to “outcome-based.” That has been interpreted to mean that whatever the allegation is, even if it is extraordinarily unlikely or impossible, that allegation will be investigated. While I disagree that the consent decree requires a full, formal investigation into every allegation, the current interpretation results in that conclusion. The end result is that every complaint, no matter how insignificant, is likely to result in a formal disciplinary investigation.
As most of you are already aware, many of these investigations are being referred to district/division supervisors to investigate. A few, however, remain with PIB to investigate. The consent decree requires that allegations involving (1) serious misconduct (including, but not limited to criminal misconduct, unreasonable force, discriminatory policing, false arrest, planting evidence, untruthfulness/false statements, unlawful search, retaliation, sexual misconduct, domestic violence, and theft) and (2) misconduct implicating the conduct of supervisory or command leadership of the subject officer be investigated by PIB (as opposed to district/division supervisors). the consent decree also allows for district/division Commanders to request that PIB investigate in lieu of a district/division supervisor. Other than that, the investigation is likely to be conducted by a district/division supervisor.
The NOPD is NOT required to notify an officer of a pending complaint. It is quite common for officers to learn of a pending complaint when they receive an email from Civil Service about an extension hearing. Officers should look out for emails from Civil Service in their departmental email. Officer should request a copy of their “Short Form” from PIB regularly. DI-1 investigations can interfere with promotions and transfers in addition to potential disciplinary action.
It is common practice for complaint investigators to request an extension under La. R.S. 40:2531(b)(7) and Civil Service Rule IX Sec. 1.4. This request has to be made within 30 days of initiating the complaint by Civil Service Rules. The law requires that the investigator show good cause why an extension is needed. Civil Service holds a hearing to make that determination. The law (La. R.S. 40:2531) requires that the officer be notified of that hearing so they have an opportunity to respond or oppose the extension. Civil Service accomplishes this notice by sending an email to the officer’s departmental email address. Click here to see an example.
The FOP Legal Defense Plan provides for legal representation through all stages of an internal investigation. If you receive an email from Civil Service regarding an extension hearing, give us a call. If you receive a call from a PIB supervisor regarding an investigation or statement, give us a call. If you are notified by a district/division supervisor of the need to make a statement in an investigation or the existence of a complaint, give us a call. Even if you are absolutely positive that there could not possibly be the remote possibility of misconduct, give us a call.
I say give us a call under any circumstances for the following reasons:
- Your FOP Legal Defense Plan dues pay for it
- You may not have violated the policy on professionalism, but you may have forgotten to complete an FIC
- You may end up sustained on an unrelated violation
- You may want to utilize the FOP’s Salary Reimbursement Option
- You may want to appeal
I can say that, generally speaking, it is much more effective and helpful to have representation from the beginning through the end. From my perspective, it provides much more clarity when it comes time for deciding whether or not to appeal, prosecuting an appeal, etc. if I am involved from the beginning.
I often hear “I hate to call you about this BS” or “I have a disciplinary hearing scheduled on something that I didn’t think was worth calling about.” It does not matter how insignificant or ridiculous a complaint might be, the FOP Legal Defense Plan will cover your representation.