The First Amendment of the U.S. Constitution, while not mentioning Freedom of Association directly, has been interpreted by the U.S. Supreme Court to include protection of Freedom of Association.  So, direct efforts to make labor unions illegal have been unsuccessful.  That does not keep the anti-union folks from trying.  One way to do that is to prevent organizations from being able to fund themselves.

Louisiana is a Right to Work state.  Like many anti-union laws, the names can be misleading.  Right to Work laws do not actually create a right to work for anyone.  There is no guarantee of employment.  What Right to Work laws really do is regulate employees’ ability to unionize.  In a Right to Work state, unions cannot require employees to belong to a union or force non-union members to pay fees to the union to support labor negotiations.  These laws are intended to weaken labor unions.

Louisiana law currently allows public employees to pay dues to organizations utilizing payroll deduction, a function which does not cost anything to be maintained. La. R.S. 42:457 allows public employees who are members of a labor union to pay their dues through payroll deduction. La. R.S. 42:457.1 allows police officers and firefighters who belong to professional organizations, like the Fraternal Order of Police, to pay their dues through payroll deduction.

In the 2015 Louisiana Legislative Session, HB 418 and SB 204, supported by groups like the Louisiana Association of Business and Industry, seek to hurt labor unions by repealing authorization to pay dues through payroll deduction.  Along with labor unions, professional organizations such as the FOP, employee advocates, would  also suffer the inability to collect dues by payroll deduction.

Click here for more insight into this matter.  Or here.

They are calling this one “paycheck protection” as if to suggest that organizations such as the FOP are raiding our members’ paychecks or that our members are in need of the Legislature’s protection to keep them from spending money on the FOP.  Don’t be fooled by “paycheck protection.”  See more below, including links to tell your elected representatives that you do not approve of HB 418 or SB 204.

The LAFOP is committed to protecting the rights of its members in Louisiana.  Remember that you are part of an organization that represents law enforcement officers from Greenwood to New Orleans and many points between. This session we have fought against losing our constitutionally protected state supplemental pay.  Our membership responded and was instrumental in having HB 523 stopped. Well the next task is in front of us, HB 418 and SB 204.  Both of these bills will prohibit your voluntary payroll deduction for your dues to your local organization. It has been said that the reason for this legislation is that organizations, like ours, is using its dues money to pay for “Planned Parenthood”.  What we know is that local FOP lodges pay for things with their dues money like supporting Easter Seals, Torch Run, and the Saint Baldrick’s Foundation. Remember that a majority of the success that we have had in this Legislative Session is due to the foresight of our membership.  The members decided that it was important for the LAFOP to have a governmental liaison to properly represent them in Baton Rouge. So again we are asking members to do one simple thing and click to let the Senate and House of Representative Labor and Industrial Relations Committee members know that as a supporter of the LAFOP and public safety you are opposed to both of these pieces of legislation. Click here to send an email to the Senators and Representatives. Link to HB 418 Link to SB 204 Link to Donovan Livaccari Letter to the Editor Link to Advocate Article Link to Advocate Letter Send us your local lodge news.  Email to info@lafop.net

Body worn cameras remain the hottest disciplinary item these days.  Everyone should make sure to be familiar with NOPD Policy 447.  Policy 447 indicates when the recordings should be initiated and when they should be concluded.  It also provides guidelines for labeling videos which has been a recent topic of discussion.  I have not included a link to the policy here.

In September, 2014, NOLA.COM published an article entitled “Cameras not on most of the time when NOPD uses force, monitor finds.”  The article indicated that the Consent Decree Monitors found that in the first five months of 2014, 49 out of 145 use of force events had accompanying video.  A possible explanation for why only 34% of use of force incidents were captured on video might be that the cameras were not issued to officers until April, 2014.  As of March, 2015, 425 officers have been issued body worn cameras.  Another factor that could contribute to the 34% figure might be that while there was widespread roll out of cameras in April, 2014, that still did not include supervisory personnel.  The point is that the statistics are misleading – as are the headlines.

The result of the misleading headlines and statistics is that the Judge and Consent Decree monitoring team are particularly interested in the BWC implementation in spite of the fact that the consent decree does not address body worn cameras in any fashion.  That has led to body worn cameras becoming the new missing court.

This may not mean anything to employees of other agencies or members of the public.  It may not even mean anything to new NOPD employees.

In the late 1990’s, the NOPD had a problem with officers appearing in court (or more specifically, not appearing in court).  It is difficult to prosecute cases when witnesses are not present.  As a result, Superintendent Pennington and then Deputy Chief Ronal Serpas decided that the answer was to institute mandatory suspensions for violations of the rule relative to mandatory appearance at tribunals.

Body worn cameras are the new missing court.  In order to combat the reported statistics, the NOPD now has mandatory suspensions for violations of Policy 447.  First offense – mandatory one-day suspension.  Second offense – mandatory five-day suspension.  All of which are avoidable.

Citizens do not file complaints that an officer did not comply with Policy 447.  Complaints can be about plenty of things, but I have never seen one that was about compliance with the body worn camera policy.

When the NOPD receives a complaint, one of the first things the Intake Section checks is the body worn camera video for the incident.  If there is no video, then you can rest assured that will be added to the disciplinary investigation.  If the video is there but was not turned on until the end of the call or if it was turned off early, you are going to get dinged for Rule 4, Paragraph 2, relative to Policy 447.

If your BWC is not functioning correctly, go overboard on notifications.  Policy 447.4(i) requires an officer to immediately notify their immediate supervisor.  I recommend 1) note it on your trip sheet; 2) notify your immediate supervisor in person and by email; 3) email the BWC division with a copy to your supervisor; and 4) note the malfunction in any police report authored during the malfunction.  If your BWC is inoperable for more than one tour, note the malfunction on your trip sheet every day.

Here are a few items noted by the Federal Monitors in their 2014 Fourth Quarter report (pages 54-55).  Hint:  If they noted it in their report, it is probably worth paying attention to it.

• Officers turn BWC on too late.  We found four cases where important parts of the officer/citizen contact were not captured on the video.
• Officers do not clearly label (tag) the video in a way that facilitates locating it later for review.  In addition to labeling the BWC video with an Item Number, the officer can draft and enter into the BWC video database information describing the nature of the call.  The Monitoring Team’s review demonstrated that, fairly often, the summaries provided by officers do not provide any real detail as to the nature of the service call.  For example, two of the most common descriptions used were “other call for service” and “traffic stop.”  We found those labels incorrectly tagged to videos for domestic violence calls and service calls resulting in use of force.
• The Item Numbers associated with the video do not always match the Item Number of the police report.  In at least five of the cases reviewed, the Item Number associated with the video was incorrect.
• Officers turn the BWC on too soon and leave it running too long.  In several of the cases reviewed, the BWC was activated at the moment the call was received, resulting in a lengthy recording that captured the entire journey from teh location the officer was when he received the call to the scene of the event.  Likewise, the officer left the camera on while he left the scene and was sitting in his car writing up his report  In several cases, there were multiple 30 minute videos associated with ac all for service.  Although this is preferable to the officer turning on the camera too late, the Monitoring Team believes that effective training will result in proper use of the BWC technology.

It is worth noting that this report is not the only reference to labeling videos I have heard about lately.  Officers should take the time to ensure that videos are labeled correctly.

In March, 2015, the NOPD reported that there were 64 camera related disciplinary investigations in 2014.  There have been another 20 camera related disciplinary investigations so far in 2015.  9 cases involved officers previously involved in camera related disciplinary investigations.

In the vast majority of disciplinary investigations where there is BWC footage of the incident, the officer(s) was cleared of allegations because of the BWC footage.  The cameras are beneficial to officers in that way and in the prosecution of cases they investigate.  Be aware and make yourself familiar with NOPD Policy 447.  You can avoid being involved in a disciplinary investigation regarding cameras.  If, however, you manage to get caught in the net, be sure to call me.

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There is nothing particularly sexy about an article on administrative disciplinary investigations.  I considered a title like “NOPD discovered a mislabeled video.  YOU WON’T BELIEVE WHAT HAPPENS NEXT.”  I don’t know about you, but that type of headline is an invitation for me to shake my head and move on to the next article.

So, first quarter of 2015 is in the books.  My COMSTAT report would look something like this:

I was able to represent 163 individual police officer members of the FOP Legal Defense Plan in the first quarter of 2015.  I appeared with FOP members to render 56 administrative statements.  I participated in 45 bureau chief or commanders hearings.  I could count emails, telephone calls, meetings, extension hearings, etc. but fortunately I don’t have to do that.

27 Police Recruits recently graduated from the police academy.  In addition, another group of officers recently completed field training.  There is also another class currently in the police academy.  So, for the benefit of our newest FOP members and as a reminder for other FOP members, here are some notes on the FOP Legal Defense Plan.

FOP members are encouraged to call one of the FOP attorneys as soon as they learn that they are somehow involved in a disciplinary investigation.  Disciplinary investigations include traditional DI-1 investigations, accident review boards, rule 9 proceedings, etc.  Anything that can result in an adverse job action should be considered a disciplinary action for the purpose of the FOP Legal Defense Plan.

Again, officers should contact one of the FOP attorneys as soon as they learn of a disciplinary investigation.  In the event that you are unable or forget to notify someone immediately, that does not mean it is too late.  While it is strategically beneficial to have an FOP attorney involved from the beginning, it is never too late.

Your FOP attorney will be able to discuss the allegations and the process that will follow.  Your FOP attorney will appear with you when you are required to make statements or appear for any other reason.  Your FOP attorney will be available to discuss how these investigations impact you individually, now and in the future.

In the course of a disciplinary investigation, an FOP member is up against the allegations, and potentially PIB, OIG, OIPM, federal monitors, etc.  The NOPD is represented by an attorney (city attorney), the IPM and Dep. IPM are attorneys.  The chief of PIB is an attorney.  Why should you be the only one not represented by counsel?

It is worth noting that La. R.S. 40:2532 provides you with a right to an attorney.  In addition, the FOP has been representing officers fora long time.  Appearing with an attorney is not an indication of guilt, nor will it look that way to investigators.

In addition to advising you on the proceedings throughout the NOPD disciplinary process, your FOP attorney will be available to file and prosecute Civil Service appeals or appeals to higher courts.  And, in the event that your odds of winning on appeal are less than appealing, the FOP offers a salary reimbursement option to those represented by an FOP attorney.

In addition, my office, Livaccari Villarrubia Lemmon also handles car accidents and other personal injury cases for police officers.  While these cases are not part of the FOP Legal Defense Plan, we take good care of our police officer clients.

Donovan Livaccari
Anthony J. Livaccari, Jr.
Livaccari Villarrubia Lemmon LLC
101 W. Robert E. Lee Blvd., Suite 402
New Orleans, LA 70124
504-488-3702