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.