NOPD Vaccinations Update

I am sure that all of our NOPD membership has heard about CAO Policy Memo No. 146 mandating vaccinations. The policy was initially set to become effective on August 30 and that was changed to September 20 due to Hurricane Ida. I have been in communication with City Hall on this matter in order to address problems with the policy. Implementation of CAO Policy Memo No. 146 has been postponed to October 18 so that these issues can be resolved.

Here are some of the issues raised on behalf of FOP members:

  • The policy did not give employees who wanted to become fully vaccinated in order to comply with policy time to do so.
  • If an employee was not vaccinated, that employee would have to get tested twice a week.
  • The policy did not address the cost of testing.
  • The policy did not address when you are supposed to get tested.
  • The policy did not address what happened if you were not vaccinated and did not have the negative tests.

I am not going to get deep into the issues above, but sending people home without pay is a suspension and is appealable to the Civil Service Commission. There is a state law that says an employer cannot saddle an employee with the cost of medical tests. Also, the FLSA makes the time spent getting tested off duty compensable time.

I think it is important to say that this policy will be effective soon. There is no real chance that anyone will intervene in the implementation of this policy. Courts have upheld vaccination mandates.

We will continue working on these and other issues so that we can make the workplace as safe as possible while protecting the rights of FOP members. If you have begun the vaccination process, now is a good time to get that finished so that you won’t have to worry about getting negative test results on a regular basis. There is no reason to believe this policy will not be in place on October 18, 2021.

NOPD Emergency Rate of Pay for Ida

I received numerous phone calls and texts about an email that originated with NOPD Payroll this afternoon stating emergency pay will not be on the payroll check dated 9/17/21. This is a preliminary response to those inquiries.

The NOPD’s payroll is opposite all other city employees. When NOPD has a pay day, everyone else has a week to go.

Today, NOPD was told that the FAL forms had to be turned in by Thursday to be processed for payroll the following week. However, NOPD’s payroll was locked Monday morning because NOPD’s payroll is opposite all other city employees.

Therefore, the Emergency Rate of Pay, which is calculated based on the FAL forms, cannot be entered prior to payroll being locked because payroll is already locked and the 9/17/21 checks will include overtime but not the Emergency Rate of Pay.

I got this question: What is the difference between emergency pay and overtime? Emergency pay is generated as a result of Civil Service Rule IV Sec. 11.1(a) which says that if there is a declared state of emergency and only essential employees are required to report to work, then those employees required to report to work will be compensated at a rate of time and one-half. Overtime is dictated by the Fair Labor Standards Act (FLSA). The FLSA requires employers to pay time and one-half for all hours worked in excess of 85.5 hours in a 2-week cycle (for police employees).

Under these unfortunate circumstances, NOPD employees will get their overtime paid on the regular paycheck, but might have to wait for the emergency pay.

One other bonus, Mayor Cantrell announced that those employees engaged in “disaster recovery” would continue to get an extra 5% pay even though City Hall is open pursuant to Civil Service Rule IV, Sec. 11.1(d).

I will post any updates.

Donovan Livaccari

9/12

Yesterday, it was impossible not to think about the events that occurred on 9/11 twenty years ago. I remember clearly being with Dave Kirsch, Jeff Winn, and Vinny Tumminello at 1700 Moss Street on 9/11/01. On 9/12, we had a better idea of what actually happened. Of the 2,977 victims of the 9/11 attacks, 412 were first responders. In the 9/11 attacks, 343 firefighters were killed, 37 Port Authority Police Department police officers were killed, 23 NYPD officers were killed, 8 EMT’s were killed, 3 New York Court Officers were killed, and 1 patrolman with the New York Fire Patrol was killed. Of course, many others were killed and severely injured working at Ground Zero and breathing the dust and debris while searching for victims in the rubble of the WTC buildings.

The 20th anniversary of 9/11 gave me a minute to stop thinking about what Hurricane Ida did to the City of New Orleans. I guess it would be more accurate to say that it gave me a minute to stop thinking about what Hurricane Ida meant to me. It gave me the opportunity to think about the heroic first responders that lost their lives on that day and the days that followed instead of the damage to my roof and the named storm deductible I will have to figure out how to overcome.

I know the New Orleans Police Department is made up of officers who are similarly brave. While we have not had to face an attack like 9/11, I made it through Katrina. Unfortunately, there were plenty of officers who did not manage to make it through Katrina. However, there was no such problem during Hurricane Ida. Some NOPD officers had to sleep in their cars to overcome the lack of electricity, but they showed up for work in the face of a category IV hurricane whose eye passed 20 miles from New Orleans. The current batch of NOPD officers, much like the batch of officers who handled their business in 2005, honored the badge and took care of their responsibilities to both their families and New Orleanians who sheltered in place and New Orleanians who evacuated.

As I said yesterday, things at the New Orleans Police Department appear to be returning to normal. We will be working on promotions, vaccinations, and other issues facing the FOP membership as a whole and I will be working on Formal Disciplinary Investigations, Civil Service appeals, and other Legal Defense issues facing individual FOP members. 90% of the New Orleans Police Department belongs to the FOP. If you are part of the 10% that does not belong to the FOP, you may want to ask yourself if this is the time to make the jump. If you are part of the 90%, don’t hesitate to call me for anything.

Where Do I Stand?

20 years ago today, I was reporting to a new assignment at the Special Operations Division of the New Orleans Police Department. On September 7, 2001, newly minted Deputy Chief Marlon Defillo had told me that he was not going to be able to transfer me. I was surprised to see the transfer on September 9. Monday the 10th was a down day and on Tuesday, September 11, 2001, I was standing in an office at 1700 Moss Street watching the news at my new assignment. As you might imagine, things were a little hectic after the planes hit the buildings in New York.

Another date I remember vividly is August 29, 2005. I had just closed on a new house on August 17 and moved in on August 20. On August 29, 2005, I was assigned to the Traffic Division and my whole unit stayed on the 16th floor of 650 Poydras St. that night. Now, the 16th floor of 650 Poydras St. is home to the U.S. Dept. of Justice. However, in 2005, it was an empty floor of a downtown office building.

Today, we are also recovering from the impact of Hurricane Ida. My electricity was out for 7 days. There are people who are still out of electricity. Ida was not as bad as Katrina because the levees held. Otherwise, there are many similarities between Katrina and Ida. For me, the biggest difference is that we know power will be restored. When Katrina flooded the city, we did not know how that happened or how it would be fixed. There was a real concern in 2005 that Lake Pontchartrain and the Mississippi River would rise to a level where they met in the city of New Orleans and the bowl would be filled to the top with water. There were a lot of unknowns in 2005, much like there were in 2001.

Today at 7:46 am (CDT), I got a notification from the New York Times about the 20th anniversary of 9/11. 8:46 am (EDT) was when the first plane hit the World Trade Center buillding in New York. I went out to cut my grass. One thing I learned from Katrina is that cutting the grass, cleaning the pool, whatever, helps when dealing with hurricane damage. I just need my insurance adjuster to come by.

Where do I stand?

I stand with you. I stand with the individual members of the New Orleans Police Department. I stand with the members of the Crescent City Lodge of the Fraternal Order of Police. I stand with the members of the Louisiana Fraternal Order of Police. I stand with my brothers and sisters across the country and wherever else you can find members of the Fraternal Order of Police.

The men and women of the New Orleans Police Department did a fine job following Hurricane Ida. The men and women of law enforcement across Louisiana did a fine job following Hurricane Ida. Hurricane Ida was not done when it left Louisiana’s borders. My thoughts and prayers go out to the people impacted by Ida as it continued across the United States to its northeast corner.

Things are starting to return to normal in New Orleans. I have already begun to put statements on my calendar for the upcoming week. There are Civil Service extension hearings on the agenda for next Tuesday.

Call me if you have a statement or hearing coming up. Call me if you have any questions about anything that you may have coming up. I am ready to stand with you when you need it.

New Orleans Mandatory Vaccination Update

I know many of my friends who work for the New Orleans Police Department have questions about the newly announced CAO Policy Memorandum No. 146 that was distributed at the end of last week. I have questions also and I will share the answers to those questions as soon as I can.

CAO Policy Memorandum No. 146 essentially says effective August 30, 2021, no city employee will be allowed to report to a city-owned worksite unless one of the following two conditions is met:

  • the employee is fully vaccinated. The policy says an employee is fully vaccinated once 14 days has passed after receiving the second of a two-shot vaccine or the one-shot vaccine. Or
  • the employee has taken two negative tests in the week. Tests must be four days apart. Tests must either be taken in front of a supervisor or the results are time stamped with the employee’s name. Antigen or PCR tests are acceptable.

A worksite is defined as a place where an employee is performing work on behalf of the city and can reasonably be expected to come within 6 feet of other city employees or members of the public.

That is the easy part. There are other questions that prove to be a bit more difficult. How will this be enforced? What will happen if an employee is sent home? How will the employee be carried in payroll? How does an employee register a religious objection? What if an employee has a medical objection? I am working on getting answers to those questions and I will be happy to share them with you all as soon as I can.

Mandatory Vaccination Update

Click here to download the Louisiana FOP’s answers to COVID-19 Frequently Asked Questions. Some highlights are:

  • Yes, a public employer can require an employee to be vaccinated;
  • No, HIPAA does not apply; and
  • You have a choice – but you might not like the choices.

This document was created by myself, General Counsel for the Louisiana Fraternal Order of Police. I relied on information provided by Larry James, National Fraternal Order of Police General Counsel, the Equal Employment Opportunity Commission, and the U.S. Department of Labor.

2021 NOPD Sergeants Promotions and Vaccinations in New Orleans

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

2021 Sergeants Promotions

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

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

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

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

Vaccinations

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

Can they make me get the vaccination?

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

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

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

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

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

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

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

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

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

Police Sergeant 2021

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

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

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

Is this legal?

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

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

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

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

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

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

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

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

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

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

No Win Situations in New Orleans

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

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

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

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

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

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

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

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

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

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

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