In 1849, French writer Jean-Baptiste Alphonse Karr wrote, “plus ça change, plus c’est la même chose” or “the more things change, the more they stay the same.” Plenty of things are changing. Are they really staying the same? I wrote a similar blog entry in July of 2015 — more than 7 years ago. What I am convinced of is that things are, indeed, staying the same.
There have been more complaints and, therefore, more investigations into paid details. I suppose paid details are low-hanging fruit. With the possible exception of ignoring the rule that says one can only work 16 hours and 35 minutes, in any capacity, on any one day. Of course, the media jumped on it. How does this sound “Officer Smith worked more than 100 hours in addition to his full-time job as a police officer? How is that possible?” It is possible. There are 168 hours in a week.
Details are easy picking. Any good reporter can make it look like our public servants are doing something wrong by earning six figures. People tend to believe what they hear in the news. That includes police officers. So, when the news reports that there are 26 police officers who have somehow broken the rules as they relate to off-duty paid details, people tend to believe that. Even police officers tend to believe these allegations, even though they know better.
I can tell you, dear reader, that almost every single instance that appeared to be double dipping was, in fact, an error on somebody’s part. In addition, I can also tell you that the vast majority of those errors were made by somebody other than the police officer working the paid detail. Of course, between PIB and OIPM, they came up with the single most onerous solution possible. Their unwritten goal must have been to make the fix to a problem that didn’t really exist as difficult as possible. See, the more things change, the more they stay the same.
The federal government decided that they were going to take a look at 16 of these cases involving paid details, allegedly. They issued 5 target letters to five individual police officers which told the officers that their information rate related to paid details was being presented to a grand jury. The target letters did not say the officers were about to be arrested or were to appear in court to defend themselves or anything like that. One thing that I am convinced of is that the federal prosecutors are going to be very disappointed. They are going to find the same thing that I found.
First of all, paid details are privately contracted business affairs between the police officer and the entity or person hiring that police officer. The City of New Orleans jumped through many hoops to make sure everybody understood that a police officer working a paid detail was not working as a city employee at that moment. In fact, that whole question went as far as the United States Fifth Circuit Court of Appeal, which agreed with the decision from the Eastern District of Louisiana that a police officer working in off-duty paid detail was not acting as an employee of the city of New Orleans.
Whatever arrangements are made between the officer and the person hiring the police officer are between those two parties to a contract. The city does not want to be a party to the contract. They want to take $5 an hour out of what a police officer makes and fund their own office to schedule and pay these officers through the ADP payroll system (OPSE). That may seem on its face to conflict, but they simply want to be a pass-through for the information and the money. Well, that’s what they got. They got that and more details than they could possibly schedule and organize. The end result was paid details that went and continue to go unfilled, details that appear to be filled by employees of the City of New Orleans but are not. They appear to be details that are subject to some kind of supervision by the City of New Orleans. Nope.
I am not going to spend much more time on this because I did not intend for this to be a blog entry about paid details. One example: There is a school that hired a police detail to keep an eye on the kids in the morning during drop-off. The school wanted the officer to work for one hour (60 minutes). The school asked the officer to report between 7:00 am and 7:15 am and stay until 8:00 am when the school’s carpool ended. In exchange, the school was going to pay the police officer 2 hours – from 6:00 am to 8:00 am. Now, the officer is not actually performing any work for the school from 6:00 am to 7:00 am. Let’s say the officer got off of work at 7:00 am. This might have led to a situation where the officer was working for NOPD from 7:00 pm to 7:00 am and the same officer was working for the school from 6:00 am to 8:00 am.
On its face, it looks like this officer was double-dipping between 6:00 am and 7:00 am. However, the appearances are inaccurate. The officer only performed work for NOPD from 6:00 am to 7:00 am. If the officer worked in the same district that the school is located in, it might only take 2-3 minutes for the officer to get to the school. So, in our hypothetical, the officer gets to the school at 7:05 am. He then works for the school until 8:00 am.
Public Payroll Fraud states:
“A. Public payroll fraud is committed when:
(1) Any person shall knowingly receive any payment or compensation, or knowingly permit his name to be carried on any employment list or payroll for any payment or compensation from the state, for services not actually rendered by himself, or for services grossly inadequate for the payment or compensation received or to be received according to such employment list or payroll; or
(2) Any public officer or public employee shall carry, cause to be carried, or permit to be carried, directly or indirectly, upon the employment list or payroll of his office, the name of any person as employee, or shall pay any employee, with knowledge that such employee is receiving payment or compensation for services not actually rendered by said employee or for services grossly inadequate for such payment or compensation.”
Paragraph 1 of La. R.S. 14:138 addresses the person defrauding the state, and paragraph 2 addresses the person facilitating the fraud committed in paragraph 1. In our hypothetical, the question is whether the officer committed payroll fraud between 6:00 am and 7:00 am. The answer is a resounding no.
In order to violate a criminal statute, there has to be criminal intent.
“Criminal intent may be specific or general:
(1) Specific criminal intent is that state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.
(2) General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.”
Fraud crimes are specific intent crimes. So, the officer had to actively desire the prescribed criminal consequences. La. R.S. 14:138(A)(1) only applies to work done for the government (public payroll). The officer would have had to “knowingly receive payment or compensation, or knowingly permit his name to be carried on any employment list or payroll for any payment or compensation from the state, for services not actually rendered by himself, or for services grossly inadequate for the payment or compensation received or to be received according to such employment list or payroll.”
Between 6:00 am and 7:00 am, the officer was paid by both the NOPD and the school. However, the officer performed the work required of him by the NOPD. The officer did not violate the necessary aspects of the statute by not rendering the services required of him by himself or by performing those services in a grossly inadequate manner. The school, a private organization, did not gain anything on the public’s nickel. Also, the school, a private business, is free to pay the officer however it wants.
I have this whole discussion of paid details under the heading “Why I Still Love the FOP.” Click here to read the original from July 2015. Why does this remind me why I still love the FOP? Because the FOP’s Legal Defense Plan provides me, as the attorney, and my client, all the resources we need to prove these allegations incorrect. Someone printed a report of payroll data, and then the data from that report was compared to a report of OPSE payroll data. Nobody ever verified the accuracy of the data in any of the reports. There is nothing wrong with working hard to support one’s family. That is all that is happening here. If anyone else believes differently, I don’t know what to say.
The FOP’s Legal Defense Plan will allow all FOP members to continue defending themselves until they are cleared. It will happen. I love being associated with the FOP.