Monthly Archives: July 2021

2021 NOPD Sergeants Promotions and Vaccinations in New Orleans

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This is going to be a short entry that I hope to be able to follow up on soon.

2021 Sergeants Promotions

Click here to see the 2021 NOPD Police Sergeant promotion order list as re-ordered by the Promotion Committee’s application of CAO Policy Memo 143(R). This list is clearly a public record and I obtained the list by making a public records request. The list shows the score each individual received on each of four categories. Unfortunately, CAO Policy Memo 143(R) only talks about three categories to be rated. CAO Policy Memo 143(R) does not mention an Interview score. The list also shows each officer’s score given by the Promotion Committee (Overall) and each officer’s final score after application of CAO Policy Memo 143(R). Finally, the list shows the officer’s new rank, how many positions that person moved up or down, and any notes applicable to that individual.

Candidates who position improved have negative numbers in the category “How many places did they move?” Candidates who position decreased have a positive number in that category. The biggest move up the list was 27 positions. The biggest move down the list was 30 positions. Candidates whose position on the list improved moved up 9 spots on average. Candidates whose position on the list moved down did so by 11.6 positions.

The Louisiana Constitution addresses how appointments to classified positions are made. I discussed what the Constitution says here. My opinion is that legal action is a possibility. Mayor Landrieu’s administration declared the Civil Service test “falsely objective,” but the new categories being used to analyze candidates for promotion are more falsely objective than the test could ever be. For example, supervisors who completed performance evaluations for candidates brought their own preconceptions, biases, and personal feelings into the mix. Some candidates only worked for the supervisor that completed the candidate’s performance evaluation for a short period of time. For a candidate’s disciplinary history, if a candidate had 1 or 2 sustained complaints at a level A or B, then that candidate got a “Medium” score. If a candidate had a sustained C violation, then the candidate got a “Low” score. They looked at each officer’s disciplinary history for the 5 years preceding the date of the Promotion Committee’s review. The violation Instructions from an Authoritative Source can be a level A, B, or C violation. The date of the Promotion Committee’s review could also be important. People miss deadlines by a day or two every time there is a deadline to miss. The rubric the Promotion Committee used can be found here.

The Fraternal Order of Police Crescent City Lodge #2 challenged the constitutionality of the Great Place to Work Initiative rules on promotions when they were first adopted. Unfortunately, the court found that the rules were not unconstitutional on their face. In other words, the rules could be applied in a constitutional manner. I am expecting to receive additional information that should shed more light on the issue at hand. In the meantime, I encourage all candidates who did not get the score they thought they should have gotten to ask for the grounds of the score. Go to PIB and request a copy of short forms. Call me and we can discuss options.

Vaccinations

While promotions to sergeant loomed, I got more calls about this article where Mayor Cantrell announced that all city employees and contractors had to be vaccinated than anything else on Friday, July 30, 2021. The questions have been one of the following two questions: (1) Can they make me get the vaccination? or (2) Can I get a religious exception?

Can they make me get the vaccination?

Can they hold an employee down and stick a needle in his or her arm? No. Without consent, that would be a battery. The real question is “Can they coerce me into getting vaccination?” The answer? Maybe. Yes.

There has been no written policy on mandatory vaccinations promulgated that I am aware of. I imagine there will be a policy forthcoming. It will be imperative to see the policy in order to be able to analyze the requirements. For example, if the policy states that unvaccinated employees will have to wear a mask, engage in social distancing, and get tested for COVID-19 at regular intervals, that would likely be reasonable. If unvaccinated city employees are terminated from permanent, classified positions, that would be much more severe. My guess is that might be too severe. Again, without a policy to examine, it is difficult to analyze.

The courts have allowed mandatory vaccinations in the past. Generally, the analysis will probably be the degree of intrusion versus the legitimate public interest. As of now, the courts in other jurisdictions have been finding in favor of mandatory vaccinations.

The vaccinations are against my religious beliefs. Can they make me get the vaccination?

Again, there is not a whole lot of precedent in this area. However, freedom of religion is one of our country’s most closely held fundamental beliefs. It is first in the Bill of Rights found in the Amendments to the U.S. Constitution. There can be no law restricting the free exercise of religion.

Religious exceptions to vaccination requirements for public employees will almost certainly exist. However, these exceptions will probably be granted conservatively. My guess is that the reason given will have to be reasonable in light of the religion espoused by the employee. I doubt that an employee will be able to start his or her own religion that does not believe in vaccines.

It is really impossible to analyze mandatory vaccinations for public employees in New Orleans right now. Once policies are provided in writing, it will be more possible to provide a useful analysis. Until then, we have limited precedent in other jurisdictions which appear to trend toward allowing mandatory vaccinations.

https://vm.tiktok.com/ZMdcqEqkW/

It is crazy that we are getting news or information from Tik Tok, but “The News Girl on Tik Tok” is right on the mark in the link directly above.

NOPD Police Sergeant 2021

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When Michael Harrison was Superintendent of the New Orleans Police Department, the Mayor’s Innovation Department at City Hall worked with Chief Harrison to come up with a new plan designed to bring the Civil Service promotion system into “modern times.” Mayor Landrieu had already managed to ditch the banded lists the New Orleans Police Department had been using successfully for years. The banded lists were the result of a consent decree in a federal discrimination complaint. So, convinced that we no longer needed protections from discrimination, favoritism, and whatever ism’s you can come up with, Mayor Landrieu branded the Civil Service Department’s exam as “falsely objective” and replaced all of the Civil Service Commissioners until the Commission agreed with him. Thus we have the Great Place to Work Initiative.

In the past 24 hours, I have heard numerous people say that they did not understand how the NOPD is switching the list around when that was the purview of the Civil Service Department. This is not exactly true. The Civil Service Department is responsible for administering the test and preparing a list of eligible candidates. The Appointing Authority is responsible for selecting candidates for promotion. The Superintendent of Police is the Appointing Authority for the New Orleans Police Department. The Civil Service Rules, which have the force and effect of law, allow for selection of anyone who passed the exam. Of course, they have to be selected pursuant to La. Const. Art. 10, Sec. 7, which states that appointments have to be made “under a general system based upon merit, efficiency, fitness, and length of service…”

When Michael Harrison was Superintendent, he just chose whoever he wanted from the list of eligibles, regardless of their position on the list. I filed “appeals” pursuant to Civil Service Rule VI, Sec. 6.1 on behalf of three candidates for Police Lieutenant who had been passed over for promotion and I was able to make the case that the people that had been promoted ahead of my three candidates had not be selected based upon merit, efficiency, fitness, and length of service. Shortly thereafter, Chief Harrison left for Baltimore and Shaun Ferguson was selected to replace him. Chief Ferguson decided he was going to make promotions by going down the Civil Service list in order. Not to be undone, the Innovation Squad finally convinced the CAO to enact a policy that would guide promotions in the New Orleans Police Department. That policy can be found in CAO Policy Memo 143(R). The application of CAO Policy Memo 143(R) is how the Civil Service list has become a new, re-ordered list.

Is this legal?

Maybe. La. Const. Art. X, Sec. 7 states “The number (of candidates) to be certified shall not be less than three; however, if more than one vacancy is to be filled, the name of one additional eligible for each vacancy may be certified.” I believe this means that there has to be three candidates certified unless there is more than one position to be filled, in which case there will be more than three candidates certified — there will be one additional candidate certified per extra position to be filled. Apparently, I am in the minority in my belief. The Innovation Squad believes that where this line states the number of candidates to be certified “shall not be less than three” means three candidates can be certified or 103 candidates can be certified.

Certification of candidates is the Civil Service Department’s job as it relates to promotions. The Appointing Authority selects candidates from those that are certified by the Personnel Director (Civil Service Department).

So, if “the number to be certified shall not be less than three” means three or 103, then the Personnel Director can certify everyone who passed the test and then it is up to the Appointing Authority to make promotions in a constitutional manner (on the basis of merit, efficiency, fitness, and length of service). The Innovation Squad decided that Appointing Authorities throughout the City would certainly be able to select candidates for promotion in a constitutional manner. They remained undeterred by the clear evidence that Chief Harrison’s administration did not even try to make constitutional promotions. Harrison’s administration just picked whoever they wanted for reasons absolutely nobody could explain (at least not under oath at the Civil Service evidentiary hearing).

CAO Policy Memorandum 143(R) was introduced because they definitely were not going to return to the banded lists that were put into place to deter discrimination, favoritism, nepotism, and the other ism’s. In addition to the Innovation Unit, the Business Council of New Orleans, led by Coleman D. Ridley, Jr., a native of Newport News, Virginia, also thought they knew best how to make promotions within the New Orleans Police Department. Why the Business Council is interested in how the NOPD makes promotions is beyond me. I really don’t understand why the CAO wants to micromanage promotions in the NOPD either. This is not a good look on either the CAO or the Business Council.

My new position on the list is unacceptable. What can I do?

When Walter Powers, Claude Schlesinger, and I met with Chief Ferguson, the Deputy Chiefs, the Chief of Staff, and the City Attorneys advising them on this topic, Chief Ferguson stated that he would entertain anyone who believes that their new ranking was the result of some type of mistake. So, that could be the first thing to do. You can contact the Superintendent’s Office and tell them that you think there has been a mistake and you would like to discuss it with whoever is handling those complaints.

Once promotions are made, you may be able to use Civil Service Rule VI, Sec. 6.1 to challenge being skipped for someone else. However, application of that rule may or may not lead to a better result. Use of Rule VI, Sec. 6.1 is not an option until after promotion have actually been made from the list and you have actually been passed over.

At the meeting mentioned above a couple of weeks ago, Chief Ferguson stated in no uncertain terms that he was committed to transparency. He said that the NOPD would provide me with whatever documentation I wanted pending an official request. Well, I submitted an official request for all of the Promotion Committee documentation a couple of days ago. I received a reply to that request from the Chief of Staff who indicated that he was in the process of assembling the requested documentation. Once I have all that documentation, it should be clearer what process was used to move some candidates 20-30 positions from their ranking on the Civil Service list to make a new order to the Sergeants List.

Once all the requested information is received, we will be in a better position to determine what, if anything, can be done about how the list was shaken up.

If you can, shoot me an email that says what your new place is on the Sergeants List. I will be keeping a close eye on everything that transpires with regard to the promotions to Police Sergeant.

No Win Situations in New Orleans

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Save the below video for later. As you can see, the video is marked as age restricted and can only be viewed on YouTube where you can assert that you are old enough to watch. The video is a news report by WWL Investigative Reporter Mike Perlstein. You have probably already seen it. If you haven’t seen it, be sure to watch it.

I pride myself on staying in touch with the rank and file officers of the New Orleans Police Department. I talk to officers every single day in one way or another. 90% of NOPD officers are members of the Fraternal Order of Police. So, I know that I will be addressing FOP members, no matter who I am speaking to.

Recently, I happened to be at a district station at roll call time. As I stated above, I try to talk to officers at every opportunity. Since roll call was just getting started, I joined the group of officers getting ready to start their tour of duty. As usual, I popped in, made sure everyone knew who I was, and asked if there was anything in particular they wanted to talk about. That particular day, they were concerned about recent revisions to the NOPD policy on searches and seizures. I bring this up as a good example of the type of “no win situation” I referred to in Mike Perlstein’s story.

In particular, officers were worried about the addition of paragraph 58 of Chapter 1.2.4 on Search and Seizure. This addition is found in the section addressing strip searches. One of the officers had recently attended in service training and had been told that the new policy makes any search that touches the skin of the person searched a strip search. Strip searches are a no-win situation at NOPD.

First, I would refer to the definition of Strip Search found in the policy. A Strip Search is defined as “any search of a person that includes the remove all or rearrangement of some or all clothing to permit visual inspection of the exterior of the suspect’s groin/genital area, buttocks, female breasts, or undergarments covering these areas.” The intent to conduct a visual inspection seems to be a necessary element of a strip search, but my personal experience is that no visual inspection is necessary in any form, Searches where officers have intentionally avoided any possibility of a visual inspection have been declared strip searches.

Paragraph 62 of the policy outlines the steps that officers have to take in order to conduct a strip search. As you can see, there are numerous steps that would be time consuming. That is fine because strip searches are rare and officers should have to dot every i and cross every t when conducting a strip search. One way or another, conducting strip searches regularly is not practical or necessary. Paragraph 58 of the policy potentially changes all that.

Searches are a daily occurrence for police officers. Policy requires that every arrested subject be searched. Every time someone rides in a police car, they must be searched before they are put in the car. On June 20, 20215, Officer Daryle Holloway was killed in the line of duty by an arrested subject who had managed to get a gun into the back of the police car. In spite of being handcuffed behind his back, Officer Holloway’s assailant managed to shoot and kill him. Searching arrested subjects is serious business that is absolutely necessary for everyone’s safety. Paragraph 58 places all of that in jeopardy.

Under the section heading of Strip Search, paragraph 58 states that “Unless the requirements for a strip search outlined below are met (paragraph 62), officer may not: (a) reach inside outer clothing and touch skin or underwear, especially in the groin, genital, and buttock/anal region; (b) manipulate items inside outer clothing which may be in direct contact with skin especially in the groin, genital, and buttock/anal region to recover an item or move them into open view; or (c) require someone to remove or rearrange some or all clothing to permit visual inspection of a person’s groin/genital area, buttocks, female breasts, or undergarments covering those areas.”

First, I think the policy already covered part c of paragraph 58. The other two parts, a and b above, make routine searches against policy. These are the types of searches that officers conduct every day. The searches that are required by policy. There is simply no way that officers will be able to comply with the requirements of paragraph 62 every time they have to conduct a search subsequent to arrest before placing an arrested subject in a car for transport. Sometimes arrested subjects have to be placed in the car more than once. For example, if an arrested subject has to be taken to the hospital before going to the lock up, that arrested subject would have to be searched before the trip to the hospital and then again before the trip to the lockup. The waistband is one of the first places officers are taught to search. That however would require officers to “reach inside outer clothing and touch skin or underwear…” So, to conduct routine searches before placing an arrested subject in the rear of a police car, officers have to (1) obtain written authorization from his or her supervisor; (2) be properly trained in strip searches; (3) have and use personal protective equipment; (4) perform the search under conditions that provide privacy from all but those authorized to conduct the search – wait, what? The arrested subject has to be transported to a private area before being able to conduct the search that allows them to be transported in a police car? If that isn’t a no-win situation, I don’t know what one is.

Of course, the policy won’t be enforced unless there is some other reason to enforce it. If there is a complaint or someone happens to watch the body worn video, then it will become an issue. Otherwise, officers will have to continue conducting searches. If they stop conducting searches, officers will get hurt. I will again refer to Officer Holloway. It will happen again.

At the roll call I attended, I told officers to do what they had to do to get home safely at the end of the day. Officers should not have to wonder whether or not they can do something that is designed to protect them. The changes to this policy create more confusion and uncertainty. The searches described in paragraph 58 do not necessarily meet the definition of a strip search. However, they are found in the strip search section. When do these instructions apply? Beats me. What I do know is that the number 1 rule is to make it home safely. Make it home safely. If you get dinged for making it home safely, I will be there with you to fight the good fight. The FOP will also be there with you to fight the good fight.