Tropical Storm Barry and the FLSA

UPDATE 2 (7/13/19): During the implementation of a crisis management plan, regular communication is crucial. As such, there are regular conference calls involving management from various departments and amongst leaders of those departments. So, there was a conference call at 1:00 this afternoon. One of the issues addressed was that all compensable time will be paid as such. As I noted below in my original version of this post, a crucial function of any emergency plan implementation is the identification of problem areas and discussion of ways to fix them up. Hurricane Barry (It did become a hurricane at some point, however short) was unique. Forecasters have become better at identifying these storms and better at creating accurate predictions. Barry, however, did not give anyone much advance notice. As such, plans which dictated the availability of certain assets at 48, 72, or 96 hours had to be revised as quickly as possible and re-implemented. Officers may have noticed some of those things, but without an overall view of the plan, it is difficult to make realistic assessments of how the plans were implemented. Over the course of 7/23/19, I spoke with Chief Noel more than once. Chief Noel has assured me that before any decision was made with regard to holding employees over that an analysis was made of whether it was affordable to do so. Once it was determined they could afford the extra pay, it was determined, yet again, that it was still necessary and/or worth the extra expense. Finally, Chief Noel assured me that Supt. Ferguson is committed to ensuring the NOPD makes payment to its employees for any compensable time accrued during the emergency. Again, the law about what time is compensable as per the FLSA is below. Officers will benefit themselves by learning what constitutes compensable time and how that fits into the FLSA 7(k) overtime sceme for law enforcement.

UPDATE 1 (7/13/19): I think it is important to point out that we have no reason to believe that any compensable time will not be compensated. That’s why it is important to learn what is compensable time and what is not. The law can be found below.

As you are aware New Orleans is making preparations for the landfall of a tropical storm, The National Hurricane Center is predicting that Tropical Storm Barry will make landfall along the southern coast of Louisiana relatively soon.

In addition, each tropical weather event gives the #NOPD a chance to implement emergency plans, look for weaknesses in those plans, and make adjustments. It never fails to take a number of people by surprise.

The next thing that comes up, inevitably, is that NOPD is not letting employees go home and they are not going to pay us. If you were thinking about calling and asking how they can get away with that, you are not the first. If the Department issues orders which interfere with an employee’s ability to spend off time however they want, it is compensable. There is more of a discussion on this topic below. It has to be more than “you have to answer the phone.” It also has to be more than “you can’t drink alcohol.” It could be those things if they were combined in some way that increases the restrictions on how you spend your free time. As you could imagine – it could be different on a case by case basis.

Clicking here will bring you to the Code of Federal Regulations which govern the application of the Fair Labor Standards Act (FLSA) for employees of state and local governments. That includes NOPD police officers. If you scroll on down to subpart C Fire Protection and Law Enforcement Employees of Public Agencies. Fact Sheet 22 is a little shorter and more general, but not necessarily better.

If you scroll down just a little further, you will see 553.220, “Tour of Duty” defined. Below that is what we are currently interested in. That describes what hours you work that you have to be compensated for – that you have to be paid for.

“Tour of Duty”

(a) The term “tour of duty” is a unique concept applicable only to employees for whom the section 7(k) exemption is claimed. This term, as used in section 7(k), means the period of time during which an employee is considered to be on duty for purposes of determining compensable hours. It may be a scheduled or unscheduled period. Such periods include “shifts” assigned to employees often days in advance of the performance of the work. Scheduled periods also include time spent in work outside the “shift” which the public agency employer assigns. For example, a police officer may be assigned to crowd control during a parade or other special event outside of his or her shift.

(b) Unscheduled periods include time spent in court by police officers, time spent handling emergency situations, and time spent working after a shift to complete an assignment. Such time must be included in the compensable tour of duty even though the specific work performed may not have been assigned in advance.

(c) The tour of duty does not include time spent working for a separate and independent employer in certain types of special details as provided in § 553.227. The tour of duty does not include time spent working on an occasional or sporadic and part-time basis in a different capacity from the regular work as provided in § 553.30. The tour of duty does not include time spent substituting for other employees by mutual agreement as specified in § 553.31.

(d) The tour of duty does not include time spent in volunteer firefighting or law enforcement activities performed for a different jurisdiction, even where such activities take place under the terms of a mutual aid agreement in the jurisdiction in which the employee is employed. (See § 553.105.)

§ 553.221 – Compensable Hours of Work

(a) The general rules on compensable hours of work are set forth in 29 CFR part 785 which is applicable to employees for whom the section 7(k) exemption is claimed. Special rules for sleep time (§ 553.222) apply to both law enforcement and employees in fire protection activities for whom the section 7(k) exemption is claimed. Also, special rules for mealtime apply in the case of employees in fire protection activities (§ 553.223). Part 785 does not discuss the special provisions that apply to State and local government workers with respect to the treatment of substitution, special details for a separate and independent employer, early relief, and work performed on an occasional or sporadic and part-time basis, all of which are covered in this subpart.

(b) Compensable hours of work generally include all of the time during which an employee is on duty on the employer’s premises or at a prescribed workplace, as well as all other time during which the employee is suffered or permitted to work for the employer. Such time includes all pre-shift and post-shift activities which are an integral part of the employee’s principal activity or which are closely related to the performance of the principal activity, such as attending roll call, writing up and completing tickets or reports, and washing and reracking fire hoses.

(c) Time spent away from the employer’s premises under conditions that are so circumscribed that they restrict the employee from effectively using the time for personal pursuits also constitutes compensable hours of work. For example, where a police station must be evacuated because of an electrical failure and the employees are expected to remain in the vicinity and return to work after the emergency has passed, the entire time spent away from the premises is compensable. The employees in this example cannot use the time for their personal pursuits.

(d) An employee who is not required to remain on the employer’s premises but is merely required to leave word at home or with company officials where he or she may be reached is not working while on call. Time spent at home on call may or may not be compensable depending on whether the restrictions placed on the employee preclude using the time for personal pursuits. Where, for example, an employee in fire protection activities has returned home after the shift, with the understanding that he or she is expected to return to work in the event of an emergency in the night, such time spent at home is normally not compensable. On the other hand, where the conditions placed on the employee’s activities are so restrictive that the employee cannot use the time effectively for personal pursuits, such time spent on call is compensable.

(e) Normal home to work travel is not compensable, even where the employee is expected to report to work at a location away from the location of the employer’s premises.

(f) A police officer, who has completed his or her tour of duty and who is given a patrol car to drive home and use on personal business, is not working during the travel time even where the radio must be left on so that the officer can respond to emergency calls. Of course, the time spent in responding to such calls is compensable.

(g) The fact that employees cannot return home after work does not necessarily mean that they continue on duty after their shift. For example, employees in fire protection activities working on a forest fire may be transported to a camp after their shift in order to rest and eat a meal. As a practical matter, the employee in fire protection activities may be precluded from going to their homes because of the distance of the fire from
their residences.

[52 FR 2032, Jan. 16, 1987; 52 FR 2648, Jan. 23, 1987, as amended at 76 FR 18857, Apr. 5, 2011; 82 FR 2229, Jan. 9, 2017]

§ 553.222 – Sleep time.

(a) Where a public employer elects to pay overtime compensation to employees in fire protection activities and/or law enforcement personnel in accordance with section 7(a)(1) of the Act, the public agency may exclude sleep time from hours worked if all the conditions in § 785.22 of this title are met.

(b) Where the employer has elected to use the section 7(k) exemption, sleep time cannot be excluded from the compensable hours of work where
(1) The employee is on a tour of duty of less than 24 hours, which is the general rule applicable to all employees under § 785.21, and
(2) Where the employee is on a tour of duty of exactly 24 hours, which is a departure from the general rules in part 785.

(c) Sleep time can be excluded from compensable hours of work, however, in the case of police officers or employees in fire protection activities who are on a tour of duty of more than 24 hours, but only if there is an expressed or implied agreement between the employer and the employees to exclude such time. In the absence of such an agreement, the sleep time is compensable. In no event shall the time excluded as sleep time exceed 8 hours in a 24-hour period. If the sleep time is interrupted by a call to duty, the interruption must be counted as hours worked. If the sleep period is interrupted to such an extent that the employee cannot get a reasonable night’s sleep (which, for enforcement purposes means at least 5 hours), the entire
time must be counted as hours of work.

[52 FR 2032, Jan. 16, 1987, as amended at 76 FR 18857, Apr. 5, 2011]

More light reading on the FLSA – Scroll with to shifts fewer than 24 hours.

How to determine if on-call time is compensable.

More on whether sleeping is compensable time.

Time suffered or permitted to work.

All that being said, my guess is nobody had a hard time getting to work on time this morning due to the weather.

Be safe. Don’t drown any police cars. It is deeper than it looks.

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VERY IMPORTANT – 1st Amendment Update

I have written or reported information about police officers and the 1st Amendment Right to Free Speech before. See U.S. Fifth Circuit Case Update – 1st Amendment and Terry Stops and Police Officer First Amendment Rights. I have also written about Facebook and Free Speech rights. It is time to go over it again.

As time passes, the popularity of Internet websites comes and goes. Facebook has ceased to be a tool for the younger generation, but 1.56 billion people still log into Facebook every day. That number includes a lot of police officers (and firefighters). This article is probably just as applicable to firefighters as it is to police officers. The executive summary of this article is: “DON’T USE FACEBOOK TO SHARE YOUR POLITICAL VIEWS.” If you think that nobody is paying attention, you are mistaken.

That brings me to the Plain View Project. The Plain View Project says the following about itself:

The Plain View Project is a database of public Facebook posts and comments made by current and former police officers from several jurisdictions across the United States.

 

We present these posts and comments because we believe that they could undermine public trust and confidence in our police. In our view, people who are subject to decisions made by law enforcement may fairly question whether these online statements about race, religion, ethnicity and the acceptability of violent policing—among other topics—inform officers’ on-the-job behaviors and choices.

 

To be clear, our concern is not whether these posts and comments are protected by the First Amendment. Rather, we believe that because fairness, equal treatment, and integrity are essential to the legitimacy of policing, these posts and comments should be part of a national dialogue about police.

The website goes on to explain:

In the summer of 2016, a team of attorneys in Philadelphia learned that numerous local police officers had posted content on Facebook that appeared to endorse violence, racism and bigotry. In some of these posts, officers commented that apprehended suspects—often black men— “should be dead” or “should have more lumps on his head.” In other Facebook conversations, officers advocated shooting looters on sight and using cars to run over protestors. Numerous posts deemed Islam “a cult, not a religion” and referred to Muslims as “savages” and “goat-humpers.” And, in still others, officers appeared to joke about beating and raping women.

This discovery inspired the creation of the Plain View Project (PVP), a research project that has identified thousands of Facebook posts and comments by current and former police officers. We believe that these statements could erode civilian trust and confidence in police, and we hope police departments will investigate and address them immediately.

The website claims to search for Facebook accounts belonging to law enforcement officers. They claim to verify that the person is really a law enforcement officer employed by a law enforcement agency. They then collect posts from those officers and publish them to a searchable database. Right now, the database only consists of a limited number of jurisdictions:

  • Philadelphia, PA
  • Dallas, TX
  • St. Louis, MO
  • Phoenix, AZ
  • York, PA
  • Twin Falls, ID
  • Denison, TX
  • Lake County, FL
  • Others

Some officers believe that the First Amendment protects speech like posts made to Facebook or other social media outlets.

YOU ARE ONLY PROTECTED BY THE FIRST AMENDMENT TO THE U.S. CONSTITUTION IF (1) YOU ARE SPEAKING AS A PRIVATE CITIZEN AND (2) YOU ARE SPEAKING ON A MATTER OF PUBLIC CONCERN.

What constitutes speaking as a private citizen? If you want to be safe, the answer is NOTHING. A private citizen doesn’t have information which is only available because of that person’s position as a law enforcement officer. A private citizen isn’t trying to promote a law enforcement officer’s career or adversely impact someone else’s.

Just forget about the First Amendment coming to your rescue.

In short, these posts could easily lead to disciplinary action or even termination. We have seen several of these cases, but nothing like what you can find in the Plain View Project database.

Do yourself a favor and read through some of the info collected. Hopefully, it will make you think twice about posting anything but cute pictures of kittens on social media. Just don’t do it.

Click here for AP Story,,

Click here for 6/19/19 AP Story

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.

 

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).

#BrothersandBadgesTogether with NOPDs 5th District.

Uniting police and public in very dis-united urban areas is a major part of my safety advocacy. A brief glimpse over the hotly debated cause of rioting after officers shoot Black male subjects is the latest reason why I work to unite brothers who sow safety with counterparts wearing badges.

Most of my efforts are centralized in New Orleans St. Roch and Marigny communities. This is also part of the jurisdiction of New Orleans Police Department  ( NOPD ) 5th District.
It is commanded by Frank Young and its Deputy Commander is Lt. Lejon Roberts.
In my roles as Head of Security for the New Orleans Healing Center  ( a story in itself ) and area safety advocate, it was only natural to activate my Brothers and Badges Together collaboration here like I did in my hometown of Savannah, Ga.
Our area has active criminals targeting its growing transplant population. This is particularly true of single women being targeted for harassment; robbery and assault while they walk;  bicycle; sit outside and in public places.
My job and citizen on patrol activities, both literal and online, routinely bring me into contact with subjects worth noting and actual suspects.
I share observations and sightings of wanted individuals with the 5th District for evaluation and rapid response.
As Vice President of the Faubourg St Roch Improvement Association, I add member concerns in the same manner.
This is how it should work between urban stakeholders of any color and local law enforcement. This is how it must work regarding Black male stakeholders fighting to create safety in very unsafe areas.
Including an arrest of a serial trespasser yesterday, my Brothers and Badges Together collaboration with the 5th District has produced seven arrests in several months time for offenses ranging from simple assault, criminal trespassing, burglary and simple robbery, in addition to victims being assisted by this District’s top decision makers and those they assign to these cases.
Because my safety advocacy builds up police/community relations instead of teariing them down, this brother works with, not against, his local police district to create safety instead of enemies.
Thanks to Commander Young and Deputy Commander Roberts, Brothers and Badges Together is a reality with the New Orleans Police Department’s 5th District.
#BrothersandBadgesTogether
Nadra Enzi aka Cap Black is a Safety Advocate in New Orleans, La.

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.