Hurricane Barry Payroll

Recently, Mayor Cantrell declared a state of emergency due to Hurricane Barry in the Gulf of Mexico. The Fraternal Order of Police (We) received numerous phone calls from officers concerned that the city would pay them correctly. I spoke with the police administration several times and Asst. Superintendent Noel assured me that Superintendent Ferguson was committed to making sure NOPD paid everyone correctly. An email to NOPDAll indicating that there could be a delay in when NOPD would be making payments for the declared state of emergency got officers worried again.

FOP representatives immediately checked with a random sample of officers to see if they had been paid correctly. The officers we spoke with consistently indicated they had been paid for the proper number of hours. Anyone who has ever tried to interpret a post event pay stub knows that making sure the number of hours is correct is the easiest part. We made a trip to the Payroll Section the same day as the email about delays. Payroll advised that they were processing all FLSA overtime as per usual and that no FLSA overtime would go unpaid or would be delayed. I spoke with Chief Noel who confirmed that was the plan.

New Orleans Civil Service Rule IV Sec. 11.1 states that if the Mayor declares a state of emergency and requests only essential employees come to work, then those essential employees are paid 1.5x the employee’s regular hourly rate for all hours worked.

Fortunately, the FOP has a good friend named Will Aitchison who is an expert in the Fair Labor Standards Act (FLSA) as it relates to public safety labor issues. Will wrote a book on the topic which you can review by clicking here. It is good to be familiar with, but for the purposes of this article, I am going to try to focus on the issue at hand. I exchanged emails with Will, and while I didn’t learn anything new, it was somewhat reassuring that I didn’t learn anything new.

GETTING PAID

An employee gets paid for compensable time. There are three aspects to being paid correctly in these circumstances: 1) Is the time compensable?, 2) If it is compensable time, is it overtime?, and 3) in New Orleans, is it subject to Civil Service Rule IV Sec. 11.1?.

IS IT COMPENSABLE TIME (Time you get paid for)?

As you might imagine, some people believe that time spent merely thinking about work is compensable time,

“I sat in my recliner and thought about how these armed robberies we’re connected for hours. I should get paid for that.”

Whether time is compensable or not depends on how restrictive your employer’s requirements are regarding your free time. For example, no drinking allowed, in and of itself, is not a sufficient intrusion to make that time compensable. However, if you’re not allowed to drink, or sleep, or leave your residence, and you have to answer a work phone while wearing your uniform, that could be compensable time.

Issues we saw during Hurricane Barry revolved mainly around whether or not officers were allowed to go home. One problem we faced during Hurricane Katrina was when an officer was sent home at the end of a shift but unable to return the next day because of road conditions or other impediments. I was assigned to Traffic when Katrina hit. The Traffic Division spent the night of August 28-29, 2005 downtown at 650 Poydras St. That was the start of a long period of work for me. But, not everyone made out as well. The night after Katrina blew through New Orleans, there were flooded streets, but downtown was still largely passable. I parked my car on Poydras St. near Lasalle St. that night and the next day water was halfway up the wheels of my car. The next night, I found myself in the 100 block of St. Charles Ave. 8th District officers would just stroll over because they had been released from work, but there was nowhere to go.

Lesson learned: you might not be able to send everyone home when their shift was over.

For Hurricane Barry, some officers were told they had to sleep at the Convention Center. It was suggested to some officers that they should stay at the station (not required). As a result of different officers receiving different instructions and different types of instructions, the amount of compensable time could be different for two officers whose time and instructions appeared to be very similar

What it comes down to is that whether time is compensable is something that has to be determined on a case-by-case basis.

IS IT OVERTIME?

Once it is determined that time is compensable time, the question then turns to whether or not the time is straight time or overtime. The FLSA has different rules for different jobs. The rules for Firefighters or different than for police. In New Orleans, overtime is calculated using a 2-week pay period. So, any time exceeding 85.5 hours in a 2-week cycle is overtime. For non-exempt employees, overtime is calculated at 1.5x the hourly rate. For exempt employees, the overtime rate is calculated using the employee’s weekly rate of pay.

WHAT ABOUT CIVIL SERVICE RULE 4 SECTION 11.1?

The New Orleans Civil Service Commission has unique and exclusive jurisdiction over pay issues for employees of the City. This is only balanced by the power of the purse maintained by the legislature, or in this case, the City Council. Article X, Section 10 of the Louisiana Constitution states that any rules passed and implemented by the City Civil Service Commission have the force and effect of law.

New Orleans Civil Service Commission Rule IV Section 11.1 states:

Section 11. EMERGENCY RATE OF PAY
11.1 – If it becomes necessary for an employee (exempt and non-exempt) to work on any day when the Mayor of New Orleans has declared an official emergency and has requested that only essential employees report to work, the appointing authority should adjust the employee’s work schedule to allow another day(s) off during that work period as a substitution. If such a substitution is not possible, then, for working at such time, the employees shall be paid the following:

(a) All non-exempt employees shall be paid at a rate of one and one-half (1½) times
their normal rate for all hours worked.

(b) All exempt employees shall be paid at a rate of one and one-half (1½) times their
normal rate of pay. Normal rate of pay for exempt employees is defined as the
weekly salary.

(c) In situations where the emergency lasts for less than a normal seven-day work
week, then exempt employees shall be paid at a rate of one and one-half (1½) times
their normal hourly rate for all hours worked subject to the maximum allowed for a
regular scheduled workday in keeping with Rule I, Number 40. Under no
circumstances shall an exempt employee receive pay from this section that exceeds
more than one and one-half times his normal weekly salary for an emergency event.

In all cases, this pay is to remain in effect until the Mayor announces the state of
emergency has ended or an announcement is made that City offices are open for business and employees are to report to work, whichever comes first.

(d) When the Mayor of New Orleans has declared an official emergency on a day in
which city offices remain open for business, exempt and non-exempt essential
employees (except for highly compensated employees as defined by the FLSA)
who are assigned to perform emergency/disaster field operations duties may receive
five (5) percent over their normal rate of pay while engaged in such duties during a
declared state of emergency. In cases where the emergency declaration extends
beyond four (4) weeks, a request for extension and reasons therefore must be
submitted by the Chief Administrative Office or other executive authority to the
Civil Service Commission for approval along with an anticipated end date and a list
of the essential employees who will remain in the emergency assignment. (amended
September 25, 2017, adopted by the Council October 26, 2017)

Almost all employees accrued overtime during the response to Hurricane Barry. In addition, because Mayor Cantrell declared a state of emergency, all regular rates of pay are increased by 1.5x. The increase continued until the Mayor rescinded the emergency declaration or non-essential offices were reopened. Since regular rates of pay were increased by 1.5x as a result of the emergency declaration, once an officer exceeds 85.5 hours in a 2-week pay period, then the FLSA requires payment of overtime in a timely fashion. There are no provisions for delays for any reason.

 

Advertisements

Tropical Storm Barry and the FLSA

UPDATE 3 (8/1/19) There is still some discussion of pay for time worked during the State of Emergency for Hurricane Barry. Here is my best interpretation of the circumstances as they exist today:

  • What time is compensable time (the time you are paid for) is determined by the application of the FLSA (Fair Labor Standards Act).
  • Whether or not an officer gets paid for standby time is fact dependent and has to be examined on a case by case basis to determine if time is compensable time. What might be compensable time for one officer may not be compensable time for another officer.
  • Compensable time for a non-exempt employee must be paid and paid in a timely fashion. We have been told that FLSA payments are, in fact, being made in a timely fashion.
  • It is important to note that some employees are exempt employees. That is to say, they are not covered by the provisions of FLSA. So, just because the FLSA would indicate time was compensable for a non-exempt employee does not mean it is compensable time for an exempt employee.
  • There is also New Orleans Civil Service Rule IV, Section 11.1 which indicates that if the mayor declares an emergency and an employee has to work when everyone else has been sent home, then those employees who have to work should be given another day off during the pay cycle. If it is not possible to give the employee another day off, then all hours worked are paid at 1.5x. However, this is not an FLSA requirement.
  • The FOP Crescent City Lodge will be keeping an eye on the payments to make sure payments are made timely and correctly.

Continue reading

VERY IMPORTANT – 1st Amendment Update

UPDATE (8/1/19) – I started off with warnings not to share your political ideas on Facebook or the like. My recommendation has changed. Do not post anything on Facebook, Twitter, or the like. There are no privacy settings that will protect you. Sometimes it takes it hitting home to really make the message clear. 2 Gretna Police Department officers fired for one Facebook post. However, these days, hitting home does not mean it only hits home. The story of the 2 Gretna officers fired for Facebook posts can also be found in the New York Times. One of the Gretna officers wrote a post. The other officer merely clicked “Like” on the post. Play around with the search bar on Facebook. It is much more powerful than you might imagine. Search Google for tips and tricks for the Facebook search bar.

Just don’t do it. If you want to share pictures of your newborn child with your relatives spread across the country, go ahead – use Facebook – you can’t beat it. However, if you have a joke, a meme, or anything like that, keep it to yourself. When is the last time you tried to convey humor or sarcasm in a text message and it failed completely? It is very difficult to convey emotion or feeling. The same is true with Facebook. To make matters worse, there are those who don’t understand that articles in The Onion are satire, or what satire is. There are people who really believe that the United States Postal Service would create a  commercial to brag about the number of fingers shipped by kidnappers. They are quite comical. You will find at least some of them amazing and amusing. However, what you wrote as a police officer can and will get you fired. Hitting a “Like” button is reported in the New York Times.

We post the FOP newsletter in the Crescent City Lodge Facebook Group. Anything wrong with reading that there? No. You probably cannot post in the Crescent City Lodge Facebook Group at all — well, not without approval. Why? It is for your own protection. There is no such thing as privacy on the Internet and nothing goes away. There are some things that are completely beyond your control. This is not one of those things. Educate yourself and protect yourself – click here.

Continue reading

You Should Make a Last Will and Testament

Members of the Crescent City Lodge of the Fraternal Order of Police are entitled to 2 hours per year of legal services for whatever legal needs you may have as a benefit of membership. The legal needs do not have to be related to the performance of your duty in any way. In fact, legal issues resulting from the performance of your duty as a police officer are covered by other elements of the FOP Legal Defense Plan. I am recommending that you consider using those 2 hours to draft a last will and testament. I cannot speak for any other attorney who does FOP Legal Defense Plan work, but, assuming you don’t need complicated estate planning and a complicated last will and testament to accompany the complicated estate planning, I will take care of your last will and testament that doesn’t cost you anything out of pocket. I will even throw in a living will, if you want. If the information below makes your head spin or generally causes confusion, feel free to call for an explanation or with any questions. You can also skip to the last paragraph and I will do whatever I can to help.

If you die without a will in Louisiana then you have died intestate. In the event an individual dies intestate in Louisiana, then that person’s estate devolves by the laws of intestacy. What does that mean? That means that whatever property the deceased has at the time of death after the bills are paid, is distributed based on the Louisiana Civil Code articles setting the order of heirship.

An heir is someone who receives a share of an estate by law or judicial process. A legatee is someone who receives a share of an estate as a result of a bequest in a last will and testament. A beneficiary is someone who receives some benefit as a result of being designated the beneficiary during the lifetime of the decedent. Things with a beneficiary, such as insurance policies, pensions, 401k’s, etc., are not part of one’s estate and operate outside of a last will and testament or the laws of intestacy.

If someone dies without a will in Louisiana, the estate will go to descendants or ascendants in equal portions in the following order: 1) children; 2) siblings; 3) parents; 4) surviving spouse; 5) other ascendants; 6) other collateral relatives by degree. The surviving spouse is entitled to the surviving spouse’s share of the community property but does not become an heir of the decedent’s community property unless there are no children, siblings, or parents that are heirs first. As you can see, it gets a little complicated. It gets even more complicated when there are 1/2 siblings or if siblings predecease the decedent.

In addition to all that intestate confusion, we have to mention the civil law concept of usufruct. Let’s say, hypothetically, that Officer A dies intestate with 2 children and a surviving spouse. In this case, Officer A’s children each receive a 50% “naked ownership” interest in the estate and the surviving spouse would get usufruct for life. What the fruct?

There are three elements to ownership: 1) usus, 2) fructus, and 3) abusus. The usus is the use of the thing. The fructus is the fruits of the thing (for example rent from a rental property is the fruit of the rental property). The abusus is the right to destroy or dispose of the property. If one is a naked owner, then that person only has the abusus. The usufructuary (the person with the usufruct) has the usus and the fructus. Together, the naked owner and the usufructuary combine to have full ownership. Apart, neither has a right to sell or dispose of the property.

In Louisiana, we also have forced heirs. Forced heirs are any first line descendants who are 23-years-old or younger or first line descendants who are incapable of caring for themselves due to physical or mental infirmity, regardless of age. Forced heirs must receive a portion of the decedent’s estate unless the forced heir is disinherited. Please note this is a very brief, simple discussion of forced heirship. As you could imagine, it gets more complicated.

Unborn children are entitled to a portion of the estate, assuming they are conceived prior to the decedent’s death. Children of heirs can take based on representation. There is more. Intestacy can be easy at times and complicated others.

How does one avoid all that? By executing a last will and testament. In a last will and testament, one can specify who they would like to receive property in an estate. A last will and testament can’t override the laws on forced heirship, but otherwise, it gives one some control over how their estate is distributed after death. For the purposes of this post, I am going to leave it here. If you have questions, feel free to call me.

A living will is different from a last will and testament. A living will is a declaration of how you want to be handled if you are unable to make those decisions for yourself. Again, I am happy to go over that with people individually if necessary.

I want to conclude by suggesting that every member of the Crescent City Lodge (NOPD employees) should take advantage of the opportunity to draft and execute a last will and testament. As I stated above, I can generally do that with no out of pocket expense for the FOP member. Call me and we can set up an appointment to discuss the matter further.

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!

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).