About Donovan Livaccari

Louisiana FOP Lawyer

Louisiana Concealed Carry Laws for Law Enforcement

Depending on who you believe, either 10.98 million (University of New Orleans) or 17.74 million (City of New Orleans) people visited New Orleans in 2017, spending $7.51B or $8.7B (respectively) while they were here. I do not know how many of those individuals were law enforcement professionals, but in 2012, the FBI said there were about 700,000 sworn officers. If reality bears out the averages, then that means there were somewhere between 21,960 and 35,480 law enforcement officers who were part of those visitors to New Orleans.

In August 2019, there will be thousands of active and retired law enforcement officers in New Orleans for the FOP’s 64th Biennial Conference. While I have no idea how many of those law enforcement visitors will be armed and carrying concealed weapons during their visit, I can imagine there will be a few. Some of those visitors carrying a concealed weapon might be visiting local eating and/or drinking establishments. While there are lots of things New Orleans is known for, drinking and eating must be near the top of the list.

EXECUTIVE SUMMARY

For those of you who don’t want to read the reasons why, here is a summary of the law in Louisiana:

  • Law enforcement officers are not forbidden from carrying concealed weapons in bars and/or restaurants
  • Any active or retired law enforcement officer approached by the NOPD while visiting New Orleans should 1) comply with all requests; and 2) be prepared to produce identification compliant with the requirements of LEOSA.
  • Guns and alcohol don’t mix in New Orleans or any other jurisdiction. Play it smart. If you are going to be drinking, leave your weapon in the hotel safe.

If you are interested in the “why,” feel free to keep reading.

La. R.S. 14:95.5 says that nobody is allowed to intentionally possess a firearm while on the premises of an alcohol beverage outlet. It goes on to define an alcoholic beverage outlet (ABO) as any business which sells alcohol in individual servings that are intended to be consumed on the premises, without regard for how much of the business’s revenues are derived from the sale of alcohol. As you might imagine, there are exceptions – exceptions which should not be conflated. In addition to the exceptions found in La. R.S. 14:95.5, there is also a federal law which likely preempts the state law, at least as it applies to the FOP members visiting in August, or the thousands of law enforcement officers who visit New Orleans every year.

La. R.S. 14:95.5(C)(1) says that the provisions of La. R.S. 14:95.5 do not apply to the owner or lessee of an ABO, an employee of the owner or lessee of an ABO, or to a law enforcement officer, or to a law enforcement officer or other person vested with law enforcement authority or listed in R.S. 14:95(G) or (H). La. R.S. 14:95.5(C)(2) says that someone with a concealed handgun permit can carry pursuant to 40:1379.1 or 40:1379.3 if the ABO has a Class A restaurant permit.

I am not aware of any definition of law enforcement officer in Louisiana statutes. La. R.S. 40:2402 defines “Peace Officer” in terms of Louisiana POST and is often cited as a starting point for defining “law enforcement officer.” However, that is not what the statute says.

La. R.S. 14:95(G) provides exemptions to La. R.S. 14:95, Illegal Carrying of Weapons (except La. R.S. 14:95(4) which I will touch on at the end) for Sheriffs, their deputies, state and city police officers, etc. in the course of their duties. It also provides an exemption for Sheriffs, their deputies, state and city police officers, as long as they are POST certified. It exempts retired law enforcement with at least 12 years and annual qualification with the appropriate id and reserve or auxiliary police officers as long as they have the appropriate identification and qualify annually with the POST firearms course.

La. R.S. 14:95(H) provides exemptions for justices, judges, and other members of the judicial or legislative branches of government as long as they have the proper identification and qualify annually with the POST firearms course.

All that is pretty complicated when La. R.S. 14:95.5(C)(1) simply exempts law enforcement officers. Furthermore, unlike the exemptions found in La. R.S. 14:95, the exemptions in La. R.S. 14:95.5(C)(1) do not require qualification on a POST course (other jurisdictions don’t necessarily have a POST Council – although other jurisdictions do have some variation of POST).

As it relates to those with concealed handgun permits, the statutory limitations are listed in La. R.S. 40:1379.3. These, however, do not apply to law enforcement officers.

La. R.S. 14:1379.1.3 provides that law enforcement officers can, generally speaking, carry a concealed weapon anywhere in Louisiana, including anywhere open to the public, given certain conditions. This statute was modeled after LEOSA, which is described below.

The Law Enforcement Officers Safety Act (LEOSA) is a United States federal law, enacted in 2004, that allows two classes of persons – the “qualified Law Enforcement officer” and the “qualified retired or separated Law Enforcement officer” – to carry a concealed firearm in any jurisdiction in the United States or United States Territories, regardless of state or local laws, with certain exceptions. (https://leosaonline.com/) This law is sometimes referred to as H.R. 218 after the bill introduced before its passage.

(c) As used in this section, the term “qualified law enforcement officer” means an employee of a governmental agency who—

(1) is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law, and has statutory powers of arrest or apprehension under section 807(b) of title 10, United States Code (article 7(b) of the Uniform Code of Military Justice);

(2) is authorized by the agency to carry a firearm;

(3) is not the subject of any disciplinary action by the agency which could result in suspension or loss of police powers;

(4) meets standards, if any, established by the agency which require the employee to regularly qualify in the use of a firearm;

(5) is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and

(6) is not prohibited by Federal law from receiving a firearm.

(d) The identification required by this subsection is the photographic identification issued by the governmental agency for which the individual is employed that identifies the employee as a police officer or law enforcement officer of the agency.

(e) As used in this section, the term “firearm”—

(1) except as provided in this subsection, has the same meaning as in section 921 of this title;

(2) includes ammunition not expressly prohibited by Federal law or subject to the provisions of the National Firearms Act; and

(3) does not include—

(A) any machinegun (as defined in section 5845 of the National Firearms Act);

(B) any firearm silencer (as defined in section 921 of this title); and

(C) any destructive device (as defined in section 921 of this title).

(f) For the purposes of this section, a law enforcement officer of the Amtrak Police Department, a law enforcement officer of the Federal Reserve, or a law enforcement or police officer of the executive branch of the Federal Government qualifies as an employee of a governmental agency who is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law, and has statutory powers of arrest or apprehension under section 807(b) of title 10, United States Code (article 7(b) of the Uniform Code of Military Justice).

CONCLUSION

Preemption is the doctrine which basically stands for the proposition that based on the Supremacy Clause of the U.S. Constitution (Article VI, Clause 2) federal law preempts state and local law when they attempt to govern the same topic. In this case, LEOSA, a federal law, states that certain law enforcement officers, active and retired, can carry concealed firearms anywhere in the United States except that it recognizes a state’s right to pass legislation allowing private persons to restrict firearms possession on their property or to restrict possession of firearms in government buildings or installations. Finally, LEOSA does not override the Gun-Free School Zone Act.

I defended a law enforcement officer from Mississippi who had been arrested in a bar in the French Quarter for carrying a concealed handgun. Ultimately, the District Attorney’s Office reached the same conclusion as I did considering the above and refused the charges. The officers who made the arrest in that case confused the laws on concealed handgun permits with the laws governing law enforcement officers. The officer who was arrested realized he had made a mistake by carrying a concealed firearm in a bar because guns and alcohol don’t mix.

REAL MESSAGE TO TAKE AWAY WITH REGARD TO GUNS AND ABO’S

Guns and alcohol do not mix. LEOSA and Louisiana Law both exempt intoxicated persons from the protection of the law, and for good reason. Actually, the legislation uses the language “under the influence of. . .” What does that mean? I have seen that language interpreted to mean “the presence of any alcohol at all – even the slightest bit.”

On behalf of the Louisiana Fraternal Order of Police and the FOP Crescent City Lodge, we are looking forward to the thousands of FOP members who will be coming to visit in August. We do want everyone to enjoy themselves. Furthermore, poor decision making is probably forgivable. However, if someone ends up hurt or dead because of the mixture of guns and alcohol, or drinking and driving, the law is not going to be quite so forgiving.

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Do you want to be in the movies?

I received an email from Central Casting Louisiana. The test of the email is below. Anyone who is interested (and available) can email Hunt@CentralCasting.com.

Central Casting Louisiana is seeking military/police types!

We are a background casting company that has been in business for over 90 years. We have worked on such projects as Jurassic World, LBJ, LoganDeepwater HorizonThe Magnificent Seven, MTV’s Scream, and Cloak and Dagger.

Filming is will soon begin the feature – The Hunt.

This horror/thriller film is set in Eastern Europe, but will film in New Orleans through April. We are in need of military or police types to work as the featured military border agents at a refugee camp.

We are reaching out to you and your organization for submissions!

Work Dates: Thursday 2/21, Friday 2/22, Friday 3/22, AND Monday 3/25

Please feel free to share this email with your friends or anyone who may be interested!

To submit, please email to Hunt@CentralCasting.comfull namecurrent photo(s)military or police experience, and phone number.

If you would like additional information about Central Casting, please call us at 504-684-2550 ext 1 between 9 AM – 6 PM, CST. We thank you for any help that you may be able to provide.

Please click the links below to follow us on social media!

26-23 – The Super Bowl Gets Much Less Interesting

It is hard to describe the feeling in New Orleans that existed the evening of January 20, 2019. There was little to no interest in the AFC Championship between the Pats and the Chiefs because the Saints has just been screwed out of a trip to Atlanta for Super Bowl LIII. This will be bad for the NFL.

After the heart-breaking loss to the Rams, Saints fans everywhere struggled with how that game turned out. Saints fans are used to losing games. It isn’t that. I fought the urge to say we were cheated. Cam Jordon tried to do the same thing – trying to focus on other opportunities that had been missed during the game.

There was a dropped catch in the back on the end zone that ended up leading to a field goal. There was the first and ten pass play that preceded “the missed call” where Drew Brees, our Hall of Fame football savior, threw the ball at the receivers feet for some inexplicable reason. Why did we pass the ball anyway? If we had just given it to Ingram or Kamara, or even Taysom Hill, the Rams would have been forced to use their last time out and the clock would have kept on ticking after that.

But, those are the things you see with 20/20 hindsight. Yep, the 4 point difference between the dropped pass and the field goal may have changed the ending also. However, that simply wasn’t the case. It didn’t happen that way. The Saints drove down to the red zone and, on third and ten, Drew Brees threw a pass to Tommylee Lewis. Nickell Robey-Coleman, the Rams’ DB recognized the situation for what it was. Lewis was open a few short feet from the goal line, Brees saw it, threw the ball, and Lewis was going to catch it and score a touchdown, making it much more difficult to send the game into overtime. Or, what is even more likely, Lewis would have been pushed out of bounds, having gained a first down, leaving the Saints in a game winning position. Robey-Coleman did what we have seen defensive backs do in that situation for years. It is better to take the penalty than to give up the score.

As Robey-Coleman admitted in post game interviews, he knew he was early when he hit Tommylee Lewis. He knew had hadn’t turned around to try to find the ball. He knew he hadn’t made any effort to make a play on the ball. He intended to interfere with Lewis’ ability to catch the ball. He said that he fully expected to see yellow flags flying. So did everyone else in the Superdome. So did everyone else watching television in New Orleans. So did everyone in Las Angeles. So did everyone everywhere except the guys in black and white stripes shirts on the field. Robey-Coleman said a ref told him the ball had been tipped. That’s the only way the pass interference would have been justified. It wouldn’t have justified the helmet-to-helmet hit on a defenseless receiver, but it would have justified the PI. Tipped balls are reviewable, right?

Anyway, we know how it turned out. Nobody threw a flag on an egregious foul. I don’t have any problem with letting the players play. That’s one of the justifications I have heard since Sunday. The refs had been letting the players play. Fine. This wasn’t one of those situations. It was a clear pass interference by one player on another. It wasn’t two players hand fighting down the field or jostling for position. Even worse, letting the players play doesn’t justify not calling the helmet-to-helmet contact when that has been a safety focus of the NFL all year long. There is a linebacker for the Green Bay Packers who did everything but put a pillow under the QB’s head on a sack that resulted in a roughing the passer call. There was a roughing the passer call in the Pats/Chiefs game where the defensive player hit Brady in the chest, missing the helmet all together. There is simply no justification for missing that call when Robey-Coleman hit Tommylee Lewis early, helmet to helmet.

The facts that there were other missed opportunities and questionable calls by Sean Payton during the game are irrelevant. There are always missed opportunities and questionable calls in every game. The situation that existed in that now infamous third and ten existed independently of any other missed opportunity or questionable call. The refs blew it bad. If the Saints get that call, it becomes first and ten. The Saints can run the clock down to a point where the ensuing field goal would have sealed the deal, cementing the Saints’ trip to Super Bowl LIII.

Now, Super Bowl LIII will be the Patriots versus Rams. I couldn’t be any less interested in that game. We are well aware that Brady is the GOAT. As much as I love Brees and appreciate everything he has done for Saints Football, the City of New Orleans, for ME, TB12 didn’t throw an interception to a defender lying on his back in overtime to lose the game. TB12 drove down the field and scored a touchdown, keeping Pat Mahomes and the Chiefs offense off the field. The Pats didn’t give up a single negative yardage play in the AFC Championship. Say what you want, that is hard to argue with.

Now, leading up to Super Bowl LIII, the media coverage is about the blown call in the Saints game and the good work done by the Patriots’ offensive line. BORRRRING! We won’t get to enjoy Brees, Alvin Kamara, Michael Thomas, Taysom Hill, Cam Jordan, Sheldon Rankins, and on and on and on. We also won’t get to enjoy Pat Mahomes and the future of the NFL. We will have a Super Bowl between a team that should have lost the NFC Championship and Belichick and Brady. I just don’t care and my gut says that there are plenty other people outside of Boston who don’t care either. I’m not saying the Patriots don’t deserve to be in the game. Clearly they do. I just don’t care who wins – like Brady needs another ring.

I know I am not a sports writer and this article is way outside of my normal writing topics. I am, however, a lifelong resident of New Orleans. And as a lifelong resident of New Orleans, I am a lifelong fan of the New Orleans Saints. That won’t change. Next season, I will be ready to yell “Who Dat!” with fellow Saints fans, whether they are from New Orleans or not. I will be ready to yell “Who Dat!” when Brees retires and Taysom Hill takes over.

I do think Super Bowl LIII is the worst case scenario for the NFL. Whether you like the Saints or not, there is simply no denying they should have beat the Rams in the NFC Championship. I guess the football fans who love offensive line play the most will be excited about the Patriots winning another one. I did like Todd Gurly’s Instagram post of him trading jerseys with the ref, but the refs won’t be rooting against Brady on February 3. My conclusion is f ’em. I doubt I will watch LIII. I certainly won’t forget about this no call that cost us a trip to the Super Bowl. Finally, I don’t blame anyone for feeling that way (except the NFL officiating crew from the 2019 NFC Championship game).

Thanks tor letting me vent. Feel free to agree or disagree in the comments.

Edit: I have seen a number of comments that the refs didn’t call a face mask on Goff at the 5, or there were other no calls throughout the game. I admit that. The difference is that we don’t know what impact, if any, calling that face mask would have had. We know with a great deal of certainty that had pass interference been called on the third and ten pass attempt to Tommylee Lewis, the Saints would have won the game.

UPDATE 2/4/19 – I was right. SB LIII was a dud. Anyone who thinks the game wouldn’t have been better with Saints v. Chiefs is delusional. Who dat!

Apps for Saving, Investment, and Retirement

As a former police officer and an attorney who regularly represents police officers and other public servants, I have a good idea of what financial life is like for police officers and other public servants. It can be tough. It often means that police officers work a combination of overtime and off-duty details that would make working two jobs seem inviting. Add a family and that challenge just gets more difficult.

The U.S. Supreme Court has held that police need a search warrant to look through someone’s smart phone. Why? Because, these days, we have the most intimate details of our lives stored on our phones — the type of information that should be protected. Some of that information is financial information.

I have made a few posts of Facebook and Twitter, but it is a little disjointed and hard to make sense of in that format. So, I thought I would put it here, together. I am going to share my experience with 3 apps: Acorns, Robin Hood, and Stash. A little disclaimer — I do use these 3 apps and clicking on the links I provide will give me and the clicker (you) a $5 bonus for signing up. While I did not write this to hustle $5 bonuses, who would turn down a free $5? The point is that the $5 is not my motivation.

Acorns

Acorns takes a unique approach to saving and investing. When you set up Acorns, you tell the app what level of risk you are willing to undertake. For example, you can set up the investments as conservative, moderately conservative, moderate, moderately aggressive, or aggressive. Acorns invests your money in one of five funds that invest in things that fit the appropriate risk profile. You link your bank account and/or credit card accounts to Acorns. As you spend money, Acorns rounds up your purchases to the nearest dollar. When the rounded up change reaches $5, it transfers the money to your Acorns account and invests it in the appropriate fund. It essentially invests yours spare change for you.

You can also tell Acorns you want to invest a lump sum each month in addition to the spare change it invests it on a regular basis. Finally, you can ask Acorns to transfer funds as needed. You can withdraw funds from Acorns pretty easily using the app. It takes 3-5 business days before you see the funds appear in your account, but the funds do appear in your account.

You can also open a debit account and a retirement account with Acorns. The money grows without having to pay any attention to it. I transfer my spare change and $100 extra per month set at moderately aggressive and my account has returned 1.88%. So, not the greatest return, but it is certainly better than any savings account.

The fee is $1/month or .002% for balances over $10,000.

Acorns is intended to be used through an app on your phone, but you can access your account through the Acorns website.

Click here to download Acorns.

Stash

Stash may be my favorite. Stash is a cross somewhere between Acorns (it does not invest spare change like Acorns) and Robin Hood (which will be next, but is more like traditional investing). Stash links to your bank account and you can set an “auto-stash” or you can manually transfer funds to invest. Once you transfer the funds you have to choose your own investment vehicles.

Stash has a number of funds that are organized by the types of companies the funds invest in. The funds are categorized into “I Believe,” “I Want,” and “I Like.” The categories are supposed to represent things you might believe in, want, or like. For example, one of the funds in I Believe is called Clean & Green and invests in companies that use or produce clean energy sources such as wind and solar. Another is Defending America which invests in America’s military suppliers. Women Who Lead invests in companies lead in the area of gender equality. I’m not sure what the I Want category is supposed to be. I mean, I could guess, but I don’t know that I would be right. It has a fund called Corporate Cannabis. I am sure you can guess what that is about. There are also funds that describe the risk level – Aggressive Mix, Conservative Mix, Long-Term Mix, etc. The funds in I Like are things you might be interested in, I guess. They have names such as American Innovators (Google, Facebook, Apple, etc.), BLOK (companies working on the block chain), and On Cloud Nine (companies developing cloud computing). Finally, there are a selection of companies you can invest in directly.

The list of companies you can invest in directly include such companies as Alphabet (Google), Amazon, General Dynamics, Boeing, Facebook, Netflix, and others. The beauty of this is that you can invest however much you would like. For example, if you were to buy Amazon (AMZN) from your stock broker, each share would cost you more than $1,500 ($1,691 as I write this). Alphabet (Google – GOOGL) is $1,092.18 per share as I write this. With Stash, you can invest $50.00 in Amazon and own approximately .003 shares. Now, you won’t be controlling the voting at Board meetings, but if 1 share of Amazon goes up by 5%, 1000 shares go up by 5% and .003 shares goes up by 5%. If your goal is a hostile takeover of Mr. Bezo’s empire, you should choose another vehicle. If your goal is similar to mine — saving some money that earns more than what savings accounts are paying in interest — then this may be a good option for you. I think Amazon is a good investment. Amazon is into everything these days and the companies it does not own have to use Amazon services to make money. It would cost me $169,100 to buy 100 shares and I don’t have that sitting around ready to invest. I can, however, find $50 to invest in Amazon. You could tell Stash to invest $5/week in Amazon. Or you tell Stash to invest $5/week in Amazon and $15/week in the fund composed of companies picked by IBM’s Watson.

One of the things I really like about Stash is that it allows you to open custodial accounts for your minor children. The custodial accounts work just like the main accounts. Stash also has a debit account and a retirement account option available.

The fee is $1/month or .002% if your balance is over $10,000 — the same as Acorns.

You can download Stash here.

Robin Hood

Robin Hood is more like a traditional investment account. You buy shares of companies at the prices everyone else buys shares of stock. If you had $169,100 in your Robin Hood account, you could buy 100 shares of AMZN. There is not a limited number of companies. You can also buy and sell options and Bitcoin and other cryptocurrencies.

There are no fees (account fees or trading fees) associated with Robin Hood unless you borrow money from them using Robin Hood Gold (margin trading). The company also earns interest on the un-invested cash in your account.

You can download Robin Hood here.

I hope this information is helpful to everyone who reads this. It is important to take a minute to plan for the future. If it is fun, you may be more likely to do it. So, do your research. There are other articles on these apps. There is another called Betterment which I don’t have any experience with. However, there are numerous articles online that compare and contrast Acorns, Stash, Robin Hood, and Betterment. Maybe we can both get $5 out of the deal.

A look back at 2018

For the last few years, I have tried to give a short tally of my FOP Legal Defense Plan activities. I think where I have fallen short in the past is that my short tallies haven’t been very short. So, this time is going to be different.

If you are in law enforcement, you should be in the FOP Legal Defense Plan. If you work for NOPD, that means you should be a member of Crescent City Lodge #2. If you work for another agency, then you should belong to your local lodge. If you don’t have a local lodge, you might be able to join Lodge 100 or another lodge in your area. You may also be able to start a new lodge. The point is that in 2019, the FOP Legal Plan is as important to a law enforcement officer as what tools are on his duty belt. Police officers should never go to work without wearing a bullet proof vest. Likewise, police officers should never go to work without the FOP’s Legal Defense Plan protecting them also.

In New Orleans, I believe things related to disciplinary investigations have begun to level off. I think the total number of DI-1 investigations or formal disciplinary investigations is probably close to the total for 2017. My stats are pretty close to 2017 also.

413

413 is the number of individual law enforcement officers I provided some type of legal service. Most of those 413 law enforcement officers were active members of the New Orleans Police Department. Some, however, were from other departments in southeast Louisiana. A few of those 413 law enforcement officers were retirees. Most were administrative disciplinary actions. Some were criminal investigations. Some were civil issues, workers compensation issues, issues with pay, or other issues associated with their employment.

248

I accompanied officers to 248 interviews in connection with formal disciplinary investigations. This includes statements at NOPD PIB, district stations, and at other agencies.

98

I attended 98 disciplinary hearings with FOP members. This includes Commander’s hearings, Bureau Chief hearings, Pre-Disposition Conferences, and any other hearings that resulted from a sustained charge in a disciplinary investigation.

110

I have 110 New Orleans Civil Service extension request hearings in my records. That is almost certainly very low. Sometimes it is better to lay low at extension hearings.

25

I accompanied 25 FOP members to an Accident Review Board hearing.

14

I represented FOP members in 14 Civil Service appeal hearings.

.500

In 2018, the Civil Service Commission released 6 decisions in cases I took to a hearing before the hearing officer. In 3 of those decisions, the Civil Service Commission granted the appeal, at least in part. In addition, at least 7 appeals were settled before the hearing. 2018 also included a decision in the protests of 3 police sergeants which I would consider a win. Counting that, my average would go up to .667. In 2017, there were 10 decisions in cases I took to hearing before the hearing officer. In 6 of those 10 cases, the appeal was granted, at least in-part. I recall when I first started handling these types of cases, the Louisiana State Civil Service used to keep detailed records on appeals. 8% of employees were successful in their appeals. I am confident my 50% – 60% win percentage is much better than average. Published Civil Service decisions can be found here.

75

I was able to notarize 75 documents for FOP members over the course of 2018.

18

The FOP provides each one of its members 2 hours of legal services for whatever the FOP member may need. I was able to do that for FOP members on 18 occasions in 2018. Sometimes that means drawing up and executing a Last Will and Testament or a Living Will. Sometimes those two hours are put toward something else, like a succession. One way or another, I try to get as much done within the 2 hours as possible.

So, that’s my review of 2018. I will leave everyone with one story from early 2019 before I hit publish.

Very early in 2019, I got a call from an officer about an officer involved shooting. The officer who called said that he wasn’t involved, but two other officers were and he gave me the location. I started in the direction of the scene and I was notified that there were three officers involved. Eventually that turned into four officers and one officer was in the hospital. The officer at the hospital was not injured badly thanks to his body armor which functioned as expected. Once I was on the scene and had spoken to the third officer, i learned that there were a total of 5 officers involved.

Now, this incident is not going to turn into any major production. It is a pretty straight-forward officer involved shooting and it was recorded from start to finish on four different cameras in high-definition. However, had it been a more controversial OIS, I am sure you could imagine what the legal costs would have been for five (5) officers. Fortunately, these officers all would have been protected by the FOP Legal Defense Plan if they would have really needed it.

It turns out the 5th officer on the scene of this OIS had recently graduated from the Academy and was in field training. I walked over to talk to him with a member of the FIT team. The FIT sergeant introduced himself and then went to introduce me and the officer in training said “Let me guess – my FOP attorney.” Sure enough. After we talked about public safety statements and what to expect, I asked this officer if he had my phone number. He kind of laughed to himself and said that I had been in his class recently at the Academy recently and I had told everyone to keep my number. He related to me that he had sat there thinking that he would never need it and did not put my number in his phone.

Put mt number in your phone. Who knows when you will need it? You can use it whenever you want. It might be something stupid. It might be something critical. It doesn’t matter to me or the FOP.

 

New Orleans Lieutenant Exam Candidate Review Sessions

On Monday, November 12, 2018, the New Orleans Civil Service Department sent test results from the recent Lieutenants Exam to the test takers. 74 NOPD Police Sergeants took the exam. Out of those 74, 51 passed the exam (69%) and 23 failed (31%). The highest score 94 and the lowest score was 20. The average score was 57 and 53 was the cut-off between pass and fail (the lowest passing score). The Lieutenants List can be found here.

Starting November 14, 2018, the Civil Service Department will begin having candidate feedback sessions with Ms. Bharati Belwalkar. Ms. Belwalkar is the Civil Service Department’s psychometrician who is dedicated to NOPD testing. The intent of this article is to try to give candidates a realistic idea of what to expect in that candidate feedback session.

First, the candidate feedback session is NOT an appeal of your score or a protest of any questions. Your score on the exam will NOT change as a result of the candidate feedback session. The purpose of the candidate feedback sessions is to help the candidate understand their areas of strength and improvement, and to better prepare for the next opportunity to take the exam.

You will NOT see the test questions, your answers, or how they were scored. You will be given information intended to help you focus your studies next time. If you know where your weakest areas were, then you will be able to prepare better next time.

The meeting, which will probably be recorded, will start off by reviewing the 3 main components of the exam: Part 1: In-Basket, Part 2: Structured Interview, and Part 3: Oral Presentation. All three of these components were equally weighted in calculating the candidate’s final score. You will see a graph that looks like this:

The graph shows each component of the exam, the highest score of each component, and the candidate’s score for each component. On the example above (not real test results), the candidate scored 67% on Part 1, 28% on Part 2, and 54% on Part 3. Clearly, the candidate did the best on Part 1 and the worst on Part 2. Ms. Belwalkar will discuss each component in terms of the candidate’s performance on the types of questions covered in it. If any of the raters had specific comments about the candidate’s answers, that information will be shared with the candidate.

Next, Ms. Belwalkar will go through the six competencies tested by the exam. Those competencies followed by the weight assigned to that competency are:

  1. Demonstrating Department’s Values (12%)
  2. Leadership and Supervisory Responsibility (26%)
  3. Operational Effectiveness (25%)
  4. Critical Thinking and Strategic Planning/Problem Solving and Decision Making (18%)
  5. Communicating Orally and/or in Writing (9%)
  6. Partnering with the Community (10%)

You will see another graph that looks like this:

Like the first graph, this graph shows the total percentage weight of each competency and the candidate’s percentage score for each competency. The example candidate profile indicates that the candidate demonstrated about 50% proficiency in every category. Because the competencies are weighted differently, it may be more important to strengthen up those areas, but it appears this candidate needs an equal amount of work across the board. Ms. Belwalkar will work with the candidate to make the information the most useful.

Finally, you will have an opportunity to ask any questions you may have. Remember, you will not have the opportunity to review your test answers, the scoring rubric, or the questions. I guess you can ask, but I would expect the answer to be that it can’t be shared. The reason for this is test security. Sometimes questions are re-used or are changed a little and then re-used. If the questions or answers to the questions were passed around, they would not be able to use any form of those questions again or risk the validity of the exam.

Each candidate’s answer was scored by 3 different raters who used a common rubric to score the exam. The 3 raters then discussed their ratings in order to eliminate error and reach a consensus score.

If you want to schedule a candidate review session, you can sign up for it here. If you have issues accessing this link, contact Ms. Belwalkar at 504-658-3508 or bbbelwalkar@nola.gov. Ms. Belwalkar is New Orleans Civil Service Personnel Administrator for the Test Development & Validation Division, working in the capacity of Senior Psychometrician.

We know that there are going to be at least 23 people who are not pleased with their test scores. Unfortunately, the New Orleans Civil Service Rules do not contain any process for appealing a score or how your exam was graded. When the exam contains a multiple-choice section, the Civil Service Department allows for protests of questions. In those circumstances, the protest is made before the exam is scored and the answer can be validated specifically by reviewing the appropriate text. In the event that a protest reveals a problem, the answer key can be changed or double-keyed to fix the problem. However, there was no multiple-choice section on this exam. The answers, and the scoring rubric, were developed in consultation with subject matter experts (SME’s) from the NOPD. The overall examination and its scoring rubric were reviewed by another group of NOPD SME’s to ensure accuracy and thoroughness. Since the types of questions and answers do not lend themselves to protest, none were allowed. Each exam was graded the same way by 3 different raters. The Civil Service Department has done there absolute best to make sure that everyone had the best chance to succeed.

I also want to take this opportunity to thank Commander Louis Dabdoub for donating his time to help FOP help NOPD officers prepare for the exam. I also want to thank Travers Mackel of WDSU for helping candidates prepare for the exam. As usual, the FOP is dedicated to providing whatever assistance it can to help FOP members succeed.

FOP Legal Plan and NOPD Discipline Part 2 – A Sustained Disposition

In my previous post about the FOP Legal Plan and the NOPD disciplinary system, I reviewed some general things about disciplinary investigations and the FOP’s Legal Defense Plan. I discussed notice, the FOP’s Salary Reimbursement Option, Extension Requests, and a few other things. This time, I am going to assume that the investigation has been completed – you and your FOP attorney have made a statement to the investigator and the investigator is ready to recommend a disposition.

The NOPD requires that the investigator issue NOPD Form 308 to the accused officer as the last step in the investigation before sending the case up the chain of command for review. NOPD Form 308 bears the title Notice to Accused Law Enforcement Officer Under Investigation of Completed Investigation. While the title of this form has changed a number of times over the years, the purpose has not. As I mentioned in the prior post, La. R.S. 40:2531(b)(7) requires that an investigation be completed within 60 days (120 days max). The statute says that the investigation will be considered complete upon notice to the law enforcement officer under investigation of a not sustained or unfounded disposition or notice of a pre-disciplinary hearing. NOPD Form 308 purports to cover all of these circumstances, thereby marking the end of the investigation. The investigator completes this form without approvals up the chain of command. Therefore, the disposition(s) can change.

NOPD Form 308 includes dates for a Pre-Disposition Conference and a Pre-Disciplinary Hearing, as well as each charge that was alleged and the disposition recommended by the investigator for that charge. Since the investigator does not know who is going to hold either of these hearings or the content of the hearing officer’s calendar, these dates are simply made up. As of this date, I have not seen a pre-disposition conference or a pre-disciplinary hearing held on the dates found on NOPD Form 308.

If the disposition on all charges is Not Sustained, Unfounded, or Exonerated (or any combination thereof), there will not be any type of hearing to come. I have had a number of questions in that regard lately. The NOPD does not conduct a pre-disposition conference or a pre-disciplinary hearing on any case with no sustained allegations.

If there is an allegation with a sustained disposition, then there will be at least one, and maybe two, hearings that follow. Depending on who conducted the investigation, the accused officer will receive either a Notice of Pre-Disposition Conference or a Notice of Pre-Disciplinary Hearing, or both.

If someone assigned to PIB conducted the administrative investigation and the potential penalty is not severe, then PIB will conduct the Pre-Disposition Conference and the Bureau to which the accused officer is assigned will conduct the Pre-Disciplinary Hearing. In that case, the accused officer will be issued a Notice of Pre-Disposition Conference by PIB at least 5 days prior to the hearing. If at the conclusion of the Pre-Disposition Conference there are still sustained allegations, then the accused officer will receive a Notice of Pre-Disciplinary Hearing a few weeks after the Pre-Disposition Conference either from the Division where the accused officer is assigned.

If the investigation is conducted by someone from the accused officer’s Bureau (usually the same Division) and the potential penalty is not severe, then the Pre-Disposition Conference and the Pre-Disciplinary Hearing will be conducted by the accused officer’s commander. These two hearings will be conducted together.

If the potential penalty for any sustained violation is severe (usually a 30-day suspension or greater), then the Pre-Disposition Conference and the Pre-Disciplinary Hearing are conducted together by a Superintendent’s Disciplinary Committee. A Superintendent’s Disciplinary Committee is chaired by the accused officer’s Bureau Chief and consists of the accused officer’s Bureau Chief and two (2) other Bureau Chiefs.

Pre-Disposition Conference

The purpose of a Pre-Disposition Conference is to finalize the investigator’s recommended disposition. The accused officer should be given notice of what alleged violations were sustained and why they were sustained. This notice would be found on the Notice of Pre-Disposition Conference. It is not on NOPD Form 308. The purpose of this hearing is to give the accused officer an opportunity to respond to the allegations sustained against him or her and, hopefully, eliminate any mistaken sustained allegations. At this hearing, the accused officer has the chance to explain why the sustained charges should not have been sustained.

It is important to note that the accused officer has the option of waiving the Pre-Disposition Conference. Commonly, the Notice of Pre-Disposition Conference is emailed along with a form which can be used to waive the Notice of Pre-Disposition Conference. If the accused officer waives the Pre-Disposition Conference, then all of the charges that were recommended sustained by the investigator will remain sustained. DO NOT WAIVE THIS PRE-DISPOSITION CONFERENCE WITHOUT CONFERRING WITH COUNSEL. I have seen where accused officers have inadvertently waived the Pre-Disposition Conference. Make sure you read what you are signing before signing.

Pre-Disciplinary Hearing

If, at the conclusion of the Pre-Disposition Conference, there are still sustained violations, the accused officer will have to attend a Pre-Disciplinary Hearing. The purpose of the Pre-Disciplinary Hearing is to give the accused officer the opportunity to give any mitigating factors and for the accused officer’s commander to recommend a penalty to the Superintendent. The disposition of the alleged violations cannot be changed at this hearing. The penalty is derived from the penalty matrix found in NOPD Chapter 26.2.1, which contains a presumptive penalty, a penalty with mitigating factors, and a penalty with aggravating factors. The penalty recommended by the accused officer’s commander can only be implemented by the Superintendent and is occasionally (not too often) altered by someone up the chain of command.

Superintendent’s Disciplinary Committee

If the potential penalty includes a suspension in excess of 30 days, demotion, or dismissal (termination), then the hearings are conducted together by a Disciplinary Committee. A Superintendent’s Disciplinary Committee is chaired by the accused officer’s Bureau Chief. Two other Bureau Chiefs will fill out the three-member committee. At that hearing the accused officer is given the opportunity to explain why the charges should not be sustained, as well as the opportunity to offer mitigating factors that might influence the disposition or penalty. It is possible for an allegation which has relatively minor potential penalties to be heard via Superintendent’s Disciplinary Committee if there is another accused officer with potentially severe penalties.

Disciplinary Letters

The Louisiana Constitution requires that any disciplinary action taken against a permanent, classified civil service employee be with “cause expressed in writing.” As such, the disciplinary process is not completed until either the Superintendent signs off on dispositions of Not Sustained, Exonerated or Unfounded, or the accused officer is issued a disciplinary letter from the Superintendent. If the accused officer is dismissed (terminated), then the accused officer will be given the disciplinary letter the same day. If there is any other penalty assessed other than termination, then the accused officer will be required to sign for a disciplinary letter some time later. It could be 6 months later or longer. The disciplinary letter will indicate when the imposed discipline must be served. Since the disciplinary letter constitutes the end of the disciplinary process, any appeals to the Civil Service Commission must follow issuance of the letter. An accused officer has 30 days from the date typed on top of the disciplinary letter to file an appeal. Since the Civil Service Commission has original and sole jurisdiction over these matters, disciplinary actions taken in accordance with Civil Service Rule IX can only be appealed to the Civil Service Commission. The disciplinary letter further serves to limit any subsequent proceedings to the grounds specified in the letter.

As you can see, there is a lot to the disciplinary process. For FOP members who do not deal with the disciplinary process every day, it can be a lot to take in. Most officers simply aren’t familiar with the ins and outs of the process because they don’t often have to interact with it. In addition, it has been my experience that most officers who are quick to explain how the system works provide as much misinformation as they do quality information. Fortunately, the FOP provides attorneys to help its members navigate the tricky waters of the disciplinary process. Pick up the phone and call. That’s all you have to do and I will be more than happy to help.

Next time… Critical Incidents and Criminal Investigations.

 

The FOP Legal Defense Plan and NOPD Discipline

The FOP Legal Defense Plan provides legal representation to its members for any criminal or civil action resulting from the performance of your duty as a law enforcement officer. The FOP Legal Plan also provides representation for any administrative investigation. Administrative investigations include disciplinary investigations, Accident Review Board cases, or Rule IX Hearings. In addition, the administrative coverage includes appeals to the Civil Service Commission, the Fourth Circuit Court of Appeal, or the Louisiana Supreme Court, if needed.

The NOPD keeps hiring new officers and running academies on a regular basis. This means that there are always new officers coming out of the Academy who have not had any experience with the NOPD’s disciplinary system. I usually have the opportunity to introduce myself to soon-to-be Academy graduates at the Academy. I have a limited amount of time to introduce myself and explain a few things about the Legal Plan. This is my opportunity to explain a little more in depth. As always, you are welcome to call me if you have any questions.

The Consent Decree entered into by the City of New Orleans and the Department of Justice contains 13 pages that apply to disciplinary investigations. The one thing that has impacted the disciplinary system the most is the requirement that the NOPD investigate all complaints based on the allegation as opposed to the anticipated outcome. The NOPD has interpreted this to mean that they are going to investigate any complaint, regardless of its facial merit. The Consent Decree also formalized the NOPD policy to accept all complaints, whether they are in person, anonymous, from third parties, via email, etc. I had one case where someone in Australia didn’t think that an officer treated someone right based on an episode of a television show he saw. Finally, the Consent Decree limits the cases that can be disposed of as NIM (No Investigation Merited).

The Consent Decree initially led to an increase in the number of disciplinary investigations. However, with the use of body worn cameras, and tools such as Non-Disciplinary Counseling, Negotiated Settlement, and Mediation, the number of disciplinary investigations looks to have topped off and dropped a little the past few years. That being said, there are still more than 700 PIB Control numbers used every year.

First and foremost, I have a lot of people call and say “I hate to bother you with something this stupid…” Nothing is that stupid. Stupid things are stupid because 1) someone did something stupid and there is no explaining it away, or 2) someone made an allegation that is so ridiculous that you can’t possibly imagine it being sustained.

In the first case, where someone does something stupid – made a simple mistake or error – and there is nothing that can explain it away, there is certainly good reason to call. The FOP offers a benefit known as the Salary Reimbursement Option. No other organization offers anything like it. Here is how it works:

Salary Reimbursement Option (SRO)

The FOP Legal Defense Plan provides legal representation to its members so that they can defend themselves from accusations that constitute a violation of rules and regulations. This representation includes appeals, if necessary. However, sometimes you are accused of something that you did. For example, maybe it was one of those days and by the time the tenth person has lied to your face, you had enough and uttered a string of profanities. This string of profanities was recorded on your body worn camera. Now, you are accused of violating the NOPD’s rule on Courtesy (Rule 2, Paragraph 2). The complaint will be sustained.

Your FOP attorney will argue on your behalf. If there is a way out, we will explore that. If there is no way out, then we will argue for the least possible penalty. This is when the Salary Reimbursement Option comes into play.

IF you are represented by an FOP attorney and the penalty involves a suspension, you and your FOP attorney will have the opportunity to discuss your options moving forward. You probably have an option to appeal. However, IF you are represented by and FOP attorney AND you and your attorney agree that your chances of success on appeal are slim, then the FOP will reimburse you for any suspension days at $150/day for up to 5 days. That’s right – if you get a suspension for something that you did and you are not going to prevail on appeal, you can get a check for $150 per suspension day from the FOP in lieu of appeal. In short, instead of wasting money appealing a suspension you are not going to win, you have the option of cutting your losses and, hopefully, getting back to even. YOU MUST BE REPRESENTED BY AN FOP ATTORNEY DURING THE DISCIPLINARY INVESTIGATION TO BE ELIGIBLE FOR THE SALARY REIMBURSEMENT OPTION. You can only be represented by an FOP attorney for a disciplinary investigation if you pick up the phone and call.

If you aren’t calling because the allegation is stupid and there is no possible way it could be sustained, you should know that plenty of stupid allegations have led to sustained violations. Additionally, it keeps your options open for the Salary Reimbursement Options.

Do they need to notify you of a pending complaint?

No. The NOPD is not required to notify you that you are the subject of a complaint. Some investigators do notify the accused officers.

Many people find out about pending investigations when they receive a notice from the Civil Service Department of an upcoming hearing. The letter states that the Department has request an extension of time in pursuant to Civil Service Rule IX, Sec. 1.4. If you get one of those notices, then you are an accused officer in a formal disciplinary investigation.

Extension Request Hearings

The Louisiana Police Officer Bill of Rights, La. R.S. 40:2531(b)(7), provides that administrative disciplinary investigations have to be completed within 60 days. It also gives investigators the option of requesting up to another 60 days, for a maximum of 120 days to complete the investigation. The investigator needs to show good cause for the extra time.Unfortunately, just about any excuse serves as cause for the extension. The letter says that you have to attend. However, if you call me, I can handle that hearing for you. These hearings can be good opportunities to learn some information. You can also agree to the extension. There are times when agreeing to the extension may be in your best interest.

There are many other ins and outs to the disciplinary system. There are statements, disposition notices (NOPD Form 308), Pre-Dispositions Conference Hearing Notices, Pre-Disciplinary Hearing Notices, Pre-Dispositions Conferences, Pre-Disciplinary Hearings, Penalty Matrices, Disciplinary Letters, Civil Service appeals, other appeals, etc. I will cover those in the next post.

 

Assessment Center Test Strategy

The FOP Crescent City Lodge will be offering prep classes for the upcoming New Orleans Civil Service Lieutenants Exam. The classes will be held at Lakeview Presbyterian Church, 5914 Canal Blvd. The classes will be from 6:00 pm to 8:00 pm on August 27 and 29 and September 4, 6, and 12. Test candidates are encouraged to attend all 5 classes.

Commander Louie Dabdoub will be leading the instruction and will be sharing his proven method for taking these exams. In addition, WDSU’s Travers Mackel will be addressing candidates on August 29 to give helpful hints on public speaking.

The FOP Crescent City Lodge and Commander Louis Dabdoub produced the above video to help FOP members prepare for assessment center promotional exams. This simple method allows for test takers to properly analyze the problems presented and prepare answers to maximize points for answers. The best way to prepare is practice practice practice. Develop some scenarios and then apply the system. Work in pairs or groups and share the scenarios you have come up with. Watch the video as many times as you need to. Watch the video as many times as you can. On behalf of the FOP Crescent City Lodge and Commander Dabdoub, good luck on the exam.

Click here to download the study guide prepared by the New Orleans Civil Service Department for public safety employees taking promotional exams (.pdf).

NOFD Promotion Case and New Orleans Civil Service Rules

There has been a bit of talk lately about “Astroturfing.” For those of you who aren’t familiar with the idea of astroturfing, it is when advocates for a certain issue or matter solicit people who aren’t really interested in the issue to appear and give the appearance that there is more support for or opposition the issue at hand. It recently came to light with regard to Entergy’s use of paid actors to appear before the New Orleans City Council to advocate for a new Entergy power plant. The article linked here is about the City Council investigating the use of paid actors by Entergy.

You may be asking yourself what this has to do with the New Orleans Civil Service Commission’s recent decision about whether the New Orleans Fire Department complied with the Civil Service Rules and the Louisiana Constitution. This decision by the Civil Service Commission was in response to the NOFD’s “appeal” of the New Orleans Personnel Director’s decision in appeals by NOFD employees who took the Captain’s test and felt as though they had been improperly passed over for promotion pursuant to Civil Service Rule VI, Sec. 6.1. The Civil Service Commission couldn’t actually act in an appellate capacity, so they conducted an investigation of the NOFD promotions and whether those promotions complied with Civil Service Rules and the Louisiana Constitution. So, the Civil Service Commission’s decision did not overrule the Personnel Director’s decision.

The Personnel Director’s decision held that the NOFD botched promotions in almost every conceivable way. She held that NOFD violated Civil Service Rule VI, Sec. 2.1, 2.3, and 3.1. The Personnel Director also held that NOFD violated the EEOC’s Uniform Guidelines on Employee Selection Procedures. The Personnel Director went on to recommend that some of the people passed over should be promoted and that the rules should be modified to prevent the types of overreaches by the NOFD.

The Civil Service Commission tried their best to decide that the NOFD did nothing wrong. However, given the facts, that was impossible. So, the Civil Service Commission’s decision held that NOFD complied with the Civil Service Rules but they did not comply with the requirements of Louisiana Constitution Art. X, Sec. 7, which requires that promotions be made after consideration of merit, efficiency, fitness, and length of service, as ascertained by examination, which should be competitive. They concluded that since so much time passed between filing appeals and the decisions that followed that there wasn’t much they could do except pledge to put safeguards in place to prevent this from happening again.

I know there is still no connection to astroturfing. Here are my thoughts on that: The Civil Service Commission goes out of its way to cite a number of individuals and groups who testified in support of the Great Place to Work Initiative (GPTWI) when it was being discussed before being passed. For those who don’t know, GPTWI is where we lost some protections like the rule of 3 as it pertains to promotions. I suggest that GPTWI is where we lost competitive promotions in the City of New Orleans. It is also where many city employees lost all faith in the overall fairness and transparency of the promotional process. Anyway, the decision cites Andy Kopplin, who was CAO at the time, Dr. Charlotte Parent, the Director of the Department of Health at the time, as well as NOFD Superintendent Timothy McConnell, and other Mayoral appointees. The decision also cites the Bureau of Governmental Research and Bright Moments — more cheerleaders for former Mayor Landrieu.

When the public comments on the GPTWI began, it was quickly obvious that the Civil Service Commission’s meeting room would be insufficient to hold the people who wanted to comment on the proposed rule changes. The Commission moved the meeting to the City Council Chambers to accommodate the larger-than-average audience. The first day in the City Council Chambers didn’t disappoint. The Chambers were full of employees and former employees who were lined up to speak out against the proposed rule changes. You could count the number of people speaking in favor of the GPTWI on one hand and those people clearly had an incentive to speak up — they held positions appointed by the Mayor.

It was pretty obvious that some phone calls were made after the poor showing on day 1 in the Chambers. On day 2, a few more people showed up to testify in favor of GPTWI. The Bureau of Governmental Research and a few other groups, or at least some leaders from those groups, came to testify in favor of the GPTWI.

This is just another form of astroturfing. The Mayor lined up people who were indebted to him in one fashion or another and solicited their support for an issue they had little to no real interest in. These folks testified before the Commission and gave media interviews in support of Mayor Landrieu’s initiative. My guess is that if the records have not already been destroyed that a public records request would probably reveal emails, phone calls, and meetings with the folks that appeared in favor of the initiative soliciting their appearance. The most disturbing part of all this is that after overwhelming comment in opposition to the GPTWI combined with the lackluster commitment shown by those who actually testified in favor of the rule changes, the Civil Service Commission still voted to enact the “reforms” with little, if any, discussion. The only difference between this type of astroturfing and the type of astroturfing used by Entergy is that Landrieu’s people only needed to give the appearance of influencing the Commissioners. The real influencing had already been done.

I expect to see a decision in the NOPD promotion appeals soon. It should be close to the NOFD decision. The only real way to remedy this problem is to change the Rules. A change reinstating the Rule of 3 and the banding system in use before GPTWI would restore some confidence in the promotional system in New Orleans. More importantly, it would protect our public servants, and the public, from the favoritism, discrimination, political interference, etc. that are the inevitable consequence of giving each appointing authority an unlimited amount of discretion.