FOP to Distribute Face Masks Today (4-3-2020)

FOP TO DISTRIBUTE FACE MASKS TODAY

The Fraternal Order of Police, Crescent City Lodge will begin the process of delivering facemasks to NOPD officers today by providing a limited supply of facemasks to each district.

This will be the first phase of delivery with additional facemasks and nitrile gloves being made available to other NOPD units and individual officers on Monday.

These facemasks are “multi-purpose disposable facemasks” and ARE NOT N-95 respirators.

There is a national discussion as to how much protection these facemasks provide to the wearer, and a national recommendation on the use/wearing of facemasks by the general public is expected in the coming days.

Our limited research shows that these masks assist in containing the spread of coronavirus to others, and do provide a modicum of protection against the disease by the wearer.  They tend to assist the wearer from touching the nose and mouth area, and also make the wearer more conscious of the fact that the disease is prevalent and very contagious and precautions should always be taken.

These masks should be worn in conjunction with nitrile gloves and should never be touched with bare hands.  If the wearer believes he/she has come in contact with a compromised surface, both gloves and facemask should be re-sanitized or replaced.

WEARING OF NITRILE GLOVES AND MASKS ARE NOT AN EXCUSE TO IGNORE OTHER SAFETY PRECAUTIONS:

WASH YOUR HANDS OFTEN, WITH SANITIZER OR SOAP AND WARM WATER, VIGOROUSLY AND FOR AT LEAST 20 SECONDS.  (The 20 seconds part is important because research shows that is how long it takes to breakdown and destroy the coronavirus while washing hands).

DO NOT TOUCH YOU FACE, ESPECIALLY YOUR EYES, NOSE OR MOUTH, UNLESS YOU HAVE SANITIZED YOUR HANDS.

MAINTAIN SOCIAL DISTANCING – STAY AT LEAST SIX (6) FEET AWAY FROM OTHERS WHENEVER POSSIBLE.  (Latest research shows that coronavirus may be spread by simply speaking with others, and does not need coughing or sneezing to be spread).

Jim Gallagher
FOP Crescent City Lodge #2

The FOP first distributed hand sanitizer on March 4, 2020 to NOPD’s 8 District for distribution to frontline officers.

The FOP also distributed nitrile gloves to NOPD personnel on March 31 and April 1, 2020. These gloves were distributed to the NOPD’s 8 Districts and S.O.D., as well as some smaller units.

Right now, across the country, it is difficult to get PPE. However, the FOP is committed to trying to help its membership, which makes up 90% of all NOPD commissioned officers, stay as safe as possible in light of the circumstances.

Donovan

NOPD Update 4-1-2020

As we move into April, it looks like the current circumstances are going to continue at least until the end of April. Please be careful and do not take any unnecessary risks. At the same time, I know that the NOPD is full of heroes who are interested in providing the best possible law enforcement services even in the face of this invisible threat. I am proud of all of you.

  • Civil Leave – If you were ordered by a supervisor to go home or stay home and that order is related to COVID-19, you should be carried Civil Leave. Special Order 6-2020 states that Civil Leave is available for anyone ordered to go home or stay home and if the employee is experiencing symptoms of COVID-19. However, after writing an email requesting clarification, particularly about employees ordered to go home and/or stay home but not experiencing symptoms, Chief Goodly called to let me know that those employees should also be carried Civil Leave. Civil Leave does not reduce your accumulated leave. If you were ordered to go home or stay home due to concerns about COVID-19 and you were carried sick or annual, you can write a 105 through your chain of command to the Superintendent explaining that your supervisor, insert name, ordered you to go home and/or stay home relative to COVID-19 and that you had been carried sick or annual. You can then request that the Superintendent change that from sick or annual to Civil Leave.
  • There is a 55-gallon drum of hand sanitizer available for officers at the Smoothie King Center on the floor of the arena. The hours of availability are unknown at present. Officers should use a spray bottle, if possible. It is very liquidy. UPDATE: 4-4-20 – I have been advised that individual NOPD officers cannot go to the Smoothie King Center to refill hand sanitizer bottles.
  • The FOP delivered gloves to the 8 district stations and SOD on March 31, 2020. We are expecting a shipment of surgical masks soon and we will distribute once we have them.
  • BDU’s start on Sunday (4/5/20). APE is open on Airline if you need it.
  • NOPD is still conducting formal administrative investigations. They are also still conducting extension hearings. It is my understanding that disciplinary hearings have been put on hold for the time being unless the officer requests that the hearing be expedited to facilitate retirement. Do not hesitate to call me about administrative statements, extension hearings, or any other issues related to the disciplinary process. I am available to assist you. PIB is also still delivering the occasional disciplinary letter. If you receive a disciplinary letter for something you want to appeal or exercise the salary reimbursement option for, please let me know.
  • The FOP Legal Defense Plan is still available to you for whatever you may need. The Legal Defense Plan includes free notary services, 2 hours of legal time per year for any personal legal matter, and 4 hours of legal time per year for family law matters. Of course, any administrative investigation, whether it is for an on-duty incident or an off-duty incident is covered with no out-of-pocket expense for FOP members. Criminal investigations related to on-duty incidents are also covered with no out-of-pocket expense for FOP members. Civil matters are also covered (call me). A number of the above only apply to members of the Crescent City Lodge #2.
  • The Louisiana FOP is conducting a survey relative to law enforcement officers’ experiences with COVID-19. If you have a chance to answer the survey questions, it would be helpful. It will not take long and does not collect any personal data or identifiable information. Click here to participate.
  • The FOP team stands ready to assist however we can. Even if you just want someone to voice your concerns to, feel free to call. The Chiefs have been very responsive to concerns I have brought to them. I think I have spoken with either Chief Noel or Chief Goodly every day since this has started. The administration is listening. Again, don’t hesitate to call me.
  • Please wash your hands for at least 20 seconds whenever possible. It is important to supplement hand sanitizer with soap and warm water for at least 20 seconds. Try to avoid touching your face.

As I indicated above, I am available if there are any concerns you may have. The Department has made it so all property crimes without an arrest can be handled by telephone. The administration has also encouraged the use of summons whenever possible. Every close contact you have with another human being is a risk. Try to minimize your risk wherever possible.

Donovan

NOPD Update 3-20-20

I received numerous calls today about concerns officers have about personal safety in light of the COVID-19 threat. I heard from officers worried about responding to some calls for service. I heard from officers who were concerned about responding to calls for service at some locations. I also heard concerns about personal protection equipment and the purchase and distribution of that equipment. The gist of the calls was that officers want to make sure someone is looking out for them.

First of all, the FOP is engaged in an ongoing dialogue with the administration regarding the safety of FOP members. Making a job that is inherently dangerous as safe as possible is one of the core missions of the FOP. Furthermore, it is important that officers who are not sick report to work as scheduled. Officers who are sick should stay home.

I am available by telephone, text, and email. The FOP will not stop working on behalf of its members.

RESPONSE TO NON-EMERGENCY CALLS FOR SERVICE

The NOPD is set to increase the calls handled by telephone. On March 20 or 21, there should be a decrease in calls for service that have to be handled face to face. With more calls for service being handled by telephone, the risk of exposure should be lower. However, there are calls that require an officer’s physical presence.

If you have to be physically present on a scene, then you have to try to maintain a distance of 6 feet from other people. Try to avoid going in the homes of callers, if possible. Try to limit the number of people you are in contact with. When you are done, go find a place to wash your hands and try to avoid touching your face.

PERSONAL PROTECTION EQUIPMENT

The NOPD generally did not have the type of equipment everyone is looking for right now. EMS gave some masks and gloves to the NOPD, but those don’t go very far once you hand them out. The next thing you know, you have to submit a 105 to get one more glove.

The FOP bought 1000 2 oz. bottles of hand sanitizer. I brought a case to the 8th District and the 4th District. We distributed the rest at the MAXX meeting on March 4. Unfortunately, not everyone got one. We tried to buy 1000 more bottles, but they were unavailable by then.

That is the bottom line. These items are hard to come by. The FOP ordered 4000 surgical procedure masks and 7400 gloves in different sizes. The shipping on that order was delayed from the beginning and, now, the delivery of these items is uncertain at best. I know the FOP and the NOPD continue to look for these types of supplies.

DANGEROUS LOCATIONS

There are some locations with a higher rate of virus transmission than others. The Orleans Parish Communications District (OPCD) has locations like that flagged and officers won’t be dispatched to those locations unless absolutely necessary. If it is necessary, there will be equipment available for responding officers.

The FOP is always looking out for its members. We do our best to improve the safety of our members’ working conditions however we can. We will continue to discuss these issues. Please let us know about things that need to be addressed.

 

FOP Statement in Support of IAFF Local 632

On February 7, 2020, the leadership of IAFF Local 632, representing the firefighters of the New Orleans Fire Department, met with Mayor LaToya Cantrell, CAO Gilbert Montaño, and other New Orleans administration members. At that time, IAFF Local 632 President Aaron Mischler brought up matters previously agreed to by administration representatives at a prior meeting I attended on behalf of the Crescent City Lodge of the Fraternal Order of Police. President Mischler stated that the senior administration officials disavowed agreements made by their representatives at the prior meeting I attended in November 2019. This disavowal led IAFF Local 632 members to declare that they would no longer be accepting off-duty details and extra-duty voluntary assignments.

The Crescent City Lodge of the Fraternal Order of Police, representing over 1,000 active NOPD officers, as well as another 1,000 retired members, support the actions taken by President Mischler on behalf of IAFF Local 632. The FOP is committed to maintaining the integrity of the New Orleans Civil Service system. The FOP supports the decision by IAFF Local 632 to insist that the administration honor its prior commitments.

The NOPD and the NOFD have been experiencing manpower shortages for several years now. Currently, the NOPD is still about 400 police officers short of manpower goals. The NOPD still lacks the resources necessary to provide the people of New Orleans with the level of service they are entitled to. After replacing long-tenured members of the Civil Service Commission, Mayor Landrieu’s new Commissioners passed new rules that touched on many aspects of public, civil service employment. Many of these rule changes came at the urging of the Business Council of New Orleans and the River Region. The introduction of the political influence resulting in the adoption of these new rules and political influence in hiring and promotions are exactly what the civil service provisions in the Louisiana Constitution sought to prevent. Now, the CAO, a political appointee of the Mayor seeks to have unprecedented control over promotions through the use of unchecked authority. This is the kind of political instability that keeps us from reaching manpower goals.

It is crucial that we, the people who live, work, and visit New Orleans, strive to maintain the integrity of the civil service system in New Orleans. In private employment, hiring and promotion decisions made for political reasons, or other unknown, questionable reasons, are taken care of by the market by benefitting the competition. In public employment, there is no competition. There is no market to regulate questionable employment decisions. The Legislature and the people of Louisiana put the regulation in the Louisiana Constitution.

The Crescent City Lodge of the Fraternal Order of Police urges the city administration and the members of the Civil Service Commission to seriously consider the years of experience in public service its members and the members of IAFF Local 632 have. Our interest is only to enable the NOPD and NOFD to provide the best service to the people who live in, work in, and visit the City of New Orleans and to work toward a fair and equitable system of employment as governed by the Louisiana Constitution.

The Fraternal Order of Police is the world’s largest organization of sworn law enforcement officers, with more than 330,000 members in more than 2,200 lodges. There are about 6,000 FOP members in Louisiana, 2,000 of those in New Orleans. We are the voice of those who dedicate their lives to protecting and serving our communities. We are committed to improving the working conditions of law enforcement officers and the safety of those we serve through education, legislation, information, community involvement, and employee representation. No one knows the dangers and the difficulties faced by today’s police officers better than another officer, and no one knows police officers better than the FOP.

Donovan Livaccari
2/13/2020

Critical Incidents

There have already been two critical incidents in 2020. Whether you are inclined to believe these types of things come in 3’s or not, it can not hurt to be prepared. We have Mardi Gras around the corner, and the number of complaints has not declined in any meaningful way in New Orleans. So, better to be prepared.

The FOP Legal Defense Plan performed well, as usual. After receiving the call, I was able to get to the scene in a timely fashion to explain the process to the involved officers. My officers got everything done and are prepared for what’s to come. I made sure they understand that the FOP, in general, and I, specifically, will be with them until the conclusion of the investigation and anything else that potentially flows from the incident. For example, since the officers were placed on administrative reassignment, I made sure they were aware of the benefits provided by the FOP’s Family Fund for which they were eligible.

There were quite a few members of the most recently graduated Academy class who did not join the FOP yet. We thought that was because the recruits were erroneously being told they could not join while they were still in the Academy. Unfortunately, what I learned was that many had joined another organization because they (the other organization) had visited with the recruit class “so many times” that it seemed like the thing to do. Compared to the 15 minutes allocated to the FOP two days before graduation, it makes sense how that comes to be. Now, the FOP’s membership still includes more than 90% of all active police officers. So, history tells us that regardless of organizational affiliation on graduation day, veteran officers choose the FOP and the FOP Legal Defense Plan. I would not work a single day without the FOP’s Legal Defense Plan in my back pocket. There is no downside to exercising the right to counsel guaranteed by the Louisiana Police Officer’s Bill of Rights and the Constitution.

As usual, we are there for you. All you need to do is call, text, or call.

2019 FOP Legal for NOPD

Each year, I like to take a look back at the preceding year to give the members of the Crescent City Lodge of the FOP an overview of the disciplinary system in New Orleans and the services I provided to members of the FOP Legal Defense Plan. It has been pretty consistent the past few years and this year is no different.

I would like to start by pointing out that every case, whether you are an accused officer or a witness officer is the kind of case you should call me about. I regularly have officers tell me that they didn’t call because they didn’t think it was a big deal or because I might be too busy for them. Unfortunately, this commonly happens after a not so big deal has become a big deal. I have been representing police officers since I graduated from law school. So, I understand that officers don’t always get a whole lot of notice before finding themselves involved in an investigation or being notified of a Civil Service extension hearing. My practice has been built around those types of cases from the beginning.

You are guaranteed legal representation by the Louisiana Police Officer’s Bill of Rights. You should always take advantage of that. Having a legal representative has a number of benefits. First of all, I will make sure your rights as listed in La. R.S. 40:2531 are protected. Hopefully, we can avoid little to nothing cases turning into a big deal. Having an attorney from the FOP Legal Plan also makes you eligible for the Salary Reimbursement Option where the FOP will repay you for up to 5 suspension days in lieu of appealing the disciplinary action. There is no downside to exercising your right to counsel.

I would also like to emphasize that when I represent a police officer through the FOP’s  Legal Defense Plan, The attorney-client relationship exists between me and the officer I represent, not the FOP. So, any privilege exists between me and the officer. Any decisions are made based on conversations between me and the officer. If you are a member of the FOP Legal Defense Plan, we will be there for you. We don’t ask any questions or make any judgments. The FOP does not interfere in my representation of any Legal Plan member. There is no downside to exercising your right to counsel.

In 2019, I represented 412 individual officers in one capacity of another. There were at least 726 PIB control #’s cut by the NOPD in 2019. There were certainly more than that.

In 2019, I represented officers at 237 interviews (statements) with investigators as part of formal disciplinary investigations. I represented officers at 100 pre-disciplinary hearings. I represented officers in 11 Rule 9 hearings, 36 Accident Review Board hearings, and 111 extension request hearings. I represented 13 officers in 5 officer-involved shootings.

I would expect 2020 to look a lot like 2019. Feel free to call and I will be there for you — there is no downside to exercising your right to counsel.

FYI – Civil Service Appeals

Rule II, Section 4.3 of the Rules for the New Orleans Civil Service Commission state as follows:

“Appeals to the Commission must be actually received in the Department of Civil Service no later than the close of business on the thirtieth (30th) calendar day following the date of the disciplinary letter provided to the employee by the Appointing Authority. Should the thirtieth (30th) calendar day fall on a weekend or an official city holiday, written appeals will be accepted no later than the close of business on the workday immediately following. The date the appeal is date/time stamped in the Civil Service Office shall be presumed to be the date of receipt of an appeal. (amended June 10, 1982; August 25, 1983; January 21, 1988, effective February 1, 1988).”

Why is this important? This is important because if you want to appeal discipline taken against you, the appeal has to be filed in a timely manner.

IF YOU DO NOT FILE THE APPEAL WITHIN THIRTY (30) DAYS OF IMPOSITION OF THE DISCIPLINE, THEN THEY WILL ALLOW YOU TO FILE AN APPEAL, BUT IT WILL BE THROWN OUT WHEN THE CITY FILES A MOTION FOR SUMMARY DISPOSITION.

I habitually explain to my officers upon conclusion of a disciplinary hearing the following information:

  1. The hearing officer (Commander, Deputy Chief, Superintendent’s Disciplinary Committee) only makes a recommendation because only the Superintendent of Police (the Appointing Authority) can institute discipline.
  2. The fact that a pre-disciplinary hearing has been held does not mean the FDI (Formal Disciplinary Investigation) is complete.
  3. The recommended discipline has to go up the chain of command. Assuming everyone who has to sign does so after circling “APPROVED,” the case goes to a stack of cases awaiting disciplinary letters.
  4. It is not complete until you receive “cause expressed in writing” as required by the Louisiana Constitution. That “cause expressed in writing” is memorialized in the form of a disciplinary letter. That letter is written on NOPD letterhead and signed by the Superintendent.
  5. There is no telling when you might be issued the disciplinary letter. You will receive a phone call, an email, or some type of notice that you need to report to PIB to sign for the disciplinary letter.
  6. This letter is important for several reasons.
    1. First and foremost, it satisfies the requirements of the Louisiana Constitution.
    2. Secondly, it starts the clock on the 30 days you have to file an appeal as specified in New Orleans Civil Service Commission Rule II, Section 4.3 as quoted above. The date typed on the top of that letter is the date used to start counting the 30 days.
    3. Since you are a good FOP member, if you choose not to appeal, you can send that letter to me for the FOP’s Salary Reimbursement Option.
    4. The letter also says when the suspension starts (assuming suspension time is involved).
  7. Whatever appeal hearing follows is limited to the contents of the disciplinary letter.
  8. FINALLY, THE NOPD DOES NOT PROVIDE ME A COPY OF THE DISCIPLINARY LETTER. YOU, MY OFFICER CLIENT, HAVE TO LET ME KNOW WHEN YOU GET THE DISCIPLINARY LETTER. THIS IS CRUCIAL BECAUSE WHILE I WILL FILE THE APPEAL AND I CAN GET IT FILED THE SAME DAY I RECEIVED THE DISCIPLINARY LETTER, 31 DAYS IS TOO MANY.

Who is entitled to an appeal? New Orleans Civil Service Commission Rule II, Sec. 4.1 reads as follows:

“Regular employees in the classified service shall have the right to appeal disciplinary actions to the Commission, including dismissal, involuntary retirement, demotion, suspension, fine, reduction in pay, or letters of reprimand as defined in Rule I. However, a demotion, reinstatement to a lower classification, transfer, reduction in pay or layoff resulting from the application of the provisions of Rule XII governing layoffs shall not be considered a disciplinary action and thus shall not warrant an appeal except as provided in Sections 4.5 and 9.1 of Rule II. (amended June 10, 1982; May 19, 1988, effective June 1, 1988, amended February 17, 2014, effective March 1, 2014).”

New Orleans Civil Service Commission Rule I, Sec. 1, Paragraph 66 defines “Regular Employee” as:

“an employee who has been appointed to a position in the classified service in accordance with the Law and these Rules and who has completed the working test period.”

That translates to employees who have successfully completed any probationary period.

Have questions? You know what to do.

Disciplinary Investigations and Off-Duty Conduct

This time of year, it is inevitable that an officer or two get in trouble for off-duty conduct. Sometimes the off-duty conduct leads to significant disciplinary action. The FOP will be there for you, as always, but, generally speaking, it is easy to avoid the off-duty behavior that comes to the attention of the Public Integrity Bureau, or Internal Affairs as the case may be.

The vast majority of discipline related to off-duty conduct is related to sex or the use of alcohol.

As police officers, you see it every single day. People who have been drinking make poor decisions. I’m just going to go ahead and say the obvious – Police Officers who have been drinking make poor decisions too. You may be able to get some professional courtesy on a regular traffic stop (and you might not – some officers are real nervous with a BWC and an ICC recording their every word and move), but if you are involved in an accident, the officer may not have any choice but to take action. A close relative of mine was stopped by an officer who used to be one of my subordinates. We did not have a contentious relationship and I helped him out quite a bit. I was surprised to learn that particular officer had arrested someone he knew to be a close relative of mine when he could have just as easily given him a ride home. My relative had not been involved in an accident or anything like that, it was a simple traffic stop. The point is that today’s political atmosphere makes it less likely that officers exercise any type of discretion.

It’s not just driving either. Alcohol can make it seem like a good idea to start an argument with the guy sitting on the barstool next to his. Alcohol can make it seem like a good idea to start a fight with an ex-husband. Did you know it is legal for an officer to carry a concealed firearm in an alcoholic beverage outlet? La. R.S. 14:95.5 allows it, as does the federal laws known as LEOSA. If, however, you think it is a good idea to carry a concealed weapon in a barroom, I would have to ask you if you are drinking while reading this. Just don’t do it. Just FYI, you are not covered by LEOSA if you are intoxicated. Also, for the New Orleans Police Department, Rule 3, Professional Conduct, Paragraph 9, Use of Alcohol/Drugs Off Duty, says that commissioned personnel are forbidden from carrying firearms in an ABO, while consuming alcohol, or while intoxicated. Part of that rule may still violate LEOSA, but La. R.S. 14:95.5 allows the Superintendent to make it a violation of Department rules to carry a firearm in an ABO.

Sex is the next source of off-duty disciplinary action. It is not a good idea to hook up with people you meet on calls for service. It does not matter if they are the complainant or the subject of the complaint.

If you come across someone who looks like they could use a ride home, make sure it is to their home and not yours. Make sure the dispatcher knows about it and that all of the transport mileages are recorded. Finally, make sure all of the recording devices you carry around these days are activated.

There are also police officers involved in abusive relationships. Now, I understand this is not as simple as just saying “don’t do it.” I would, however, like to encourage any officer involved in an abusive relationship to seek help. At the New Orleans Police Department, Cecile Tebo is available at no cost through the Office Assistance Program to help however she can. No matter where you are or what department you work for, there is help available somewhere. Take advantage of that help before you lose your job over it.

The standard, as is always the case, is that the alleged infraction must bear a real and substantial relationship to the efficient operation of the public service. The Courts in Louisiana have applied that rule fairly liberally. That means that if your Department believes there is a real and substantial relationship between the alleged dereliction and the efficient operation of the public service, the Courts are likely to go along with that.

As we are recently reminded by the Louisiana Supreme Court, neither the Commission nor a reviewing court should “second-guess” an appointing authority’s decisions. See Lange v. Orleans Levee District, 10–0140, p. 17 (La.11/30/10), 56 So.3d 925, 936. The Commission and a reviewing court may intervene only when the appointing authority’s decisions are arbitrary and capricious or characterized by an abuse of discretion. Id. Moreover, neither the Commission nor the reviewing court may serve as a de facto pardon board. Id. “[S]ympathy is not a legal standard.” Id.

Chinh Nguyen v. Dep’t of Police, 2011-0570 (La. App. 4 Cir. 8/31/11), 72 So. 3d 939, 944.
I hope everyone has had an enjoyable Holiday Season and that none of this advice is necessary. If it becomes necessary, call me.

Millage Lawsuit Payments 1980-1994

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Click here for information on the distribution of funds resulting from the FOP’s millage lawsuit covering the period 1980-1994. There will be an additional distribution covering later years.

http://nopdmillage.com/

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.

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