The FOP Legal Defense Plan and NOPD Discipline

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

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

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

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

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

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

Salary Reimbursement Option (SRO)

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

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

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

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

Do they need to notify you of a pending complaint?

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

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

Extension Request Hearings

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

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

 

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Formal Disciplinary Investigations (#NOPD DI-1)

IMG_1309-0Periodically, I like to take a moment to make sure people are up to speed on the status of formal disciplinary investigations for NOPD and the benefits provided by the FOP Legal Defense Plan.

The federal consent decree entered into by the City of New Orleans and the Dept. of Justice requires that complaint classification be “allegation-based” as opposed to “outcome-based.”  That has been interpreted to mean that whatever the allegation is, even if it is extraordinarily unlikely or impossible, that allegation will be investigated.  While I disagree that the consent decree requires a full, formal investigation into every allegation, the current interpretation results in that conclusion.  The end result is that every complaint, no matter how insignificant, is likely to result in a formal disciplinary investigation.

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The End of #NOPD Disciplinary Investigations #FOP #FOPNO

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Don’t get the wrong idea.  NOPD is still conducting disciplinary investigations.  I am also not addressing the end of a disciplinary investigation for the purposes of the Police Officers Bill of Rights.  This is about how disciplinary investigations effect promotions and impact a decision to retire or resign.

It is pretty clear when an investigation begins.  There is a date on the DI-1 which initiates the investigation.  A better question is when the investigation ends.  Part of the problem is that there are numerous signals which can be misinterpreted.  For example, the NOPD likes to have officers sign for a form entitled “Notice to Law Enforcement Officer Under Investigation of Pre-Disciplinary Hearing or Unfounded or Unsustained Disposition.”  The NOPD takes the position that this form signals the end of the investigation for purposes of the Police Officers Bill of Rights.  The problem is that this form only contains the investigator’s recommended disposition.  Only the Superintendent of Police, as the appointing authority, can make a final call on a disposition.  In addition, the date on the form for a disciplinary hearing is a date selected by the investigator based on some system.  The investigator really has no involvement in setting the hearing date and is only involved in the hearing if the hearing officer wants to have them as a witness.  The Police Officers Bill of Rights discussion on this matter is a complicated one.  Since this is not the purpose of this article, suffice it to say that this does not signal the end of the investigation for the purpose of promotion or RUI status (even if the allegations are found to be not sustained, unfounded, or exonerated).

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Disciplinary Letters, Civil Service Appeals, and SRO #NOPD #FOP #FOPNO

The culmination of the disciplinary process within the New Orleans Police Department consists of a phone call one day, when you least expect it, instructing you to appear at the Public Integrity Bureau to sign for a disciplinary letter.  The disciplinary letter is a letter on departmental letterhead, signed by the Superintendent, which lays out the alleged cause justifying the discipline, the rules allegedly violated, and the imposition of the final discipline (suspension, letter of reprimand, etc.).

While this is the end of the line for the NOPD’s disciplinary process, it is not the end of the line for classified employees or FOP members.  You have a number of options available to you at this point.

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Louisiana Police Officer’s Bill of Rights Primer

The Crescent City Lodge of the Fraternal Order of Police has been fortunate to be involved in the maintenance, revision, and defense of the Police Officer Bill of Rights for the State of Louisiana.  Myself, Jim Gallagher, and others have been instrumental in drafting much of the language currently found in the legislation, testifying in front of Legislative Committees, meeting with Legislators, and negotiating with groups whose interests differ from ours like the Louisiana Sheriff’s Association.

The Rights of Law Enforcement Officers While Under Investigation (Police Officer Bill of Rights) can be found in La. R.S. 40:2531.  The law applies to Probation and Parole Officers, State Police, campus police employed by a state-supported university, and law enforcement officers employed by any municipality who are under investigation with a view to possible disciplinary action, demotion, or dismissal.

Certainly, this law applies to employees of the New Orleans Police Department.  The law does not apply to Deputies employed by the Orleans Parish Sheriff’s Office.

The provisions of this law provide minimum standards applying specifically to any investigation of the covered group of law enforcement officers.  This also raises the first interesting question with regard to this law.

Who qualifies as a “law enforcement officer”?

Commissioned, POST certified police officers employed by a municipal police department qualify as law enforcement officers.  The same is true of State Troopers, and Probation and Parole Agents.

There have been questions recently about whether police officers employed by a state-supported university who do not work on that university’s campus are covered.  For example, the police officers employed by the L.S.U. Medical Center are employed by an arm of a state-supported university.  However, they do not work as “campus police” in the truest sense of the term.  At the same time, the L.S.U. Medical Center is the campus for medical students enrolled at L.S.U.  In the broadest sense, those officers would be included, but if one is trying to exclude individuals from the protection of the statute, an argument could be made.  At present, there is no judicial guidance on this issue.

Another question comes up with regard to employees of a municipal police agency who are not commissioned, POST certified police officers.  For example, what about dispatchers or 911 call takers?  What about Police Technicians?  What about Crime Lab Technicians who are not commissioned, POST certified police officers?  What about jailers?

One of the main sources of interpretation that we have for the Police Officer Bill of Rights is the Louisiana Attorney General.  The Louisiana Attorney General provides legal opinions on questions presented to it by governmental bodies or boards.  These opinions are not binding like a decision from the Supreme Court might be.  These opinions are considered “persuasive” argument on the topic covered in the opinion.  That means that Courts can consider the opinion, but they are not required to agree with it.

The Louisiana Attorney General has opined that whether one qualifies as a law enforcement officer or not is based on function and authority (La. AG Op. 93-52).  The AG looked to the Peace Officer Standards and Training Law for guidance and the definition of Peace Officer found therein.  This definition, which applies specifically to POST, says a Peace Officer is “any full time employee of the state, a municipality, a sheriff, or other agency, whose permanent duties actually include the making of arrests, the performing of searches and seizures, or the execution of criminal warrants, and is responsible for the prevention or detection of crime or for the enforcement of the penal, traffic, or highway laws of this state.”

The AG stated that this definition only gives guidance about who is a law enforcement officer.  The AG is of the opinion that jailers are law enforcement officers, but clerks and radio operators are not.  In the AG’s opinion, the dictating factors appear to be the authority to make arrests, issue criminal warrants, effect seizures, etc.

What constitutes an “investigation”?

The Police Officer Bill of Rights clearly states that it applies to law enforcement officers who are under investigation with a view to possible disciplinary action, demotion, or dismissal.  This question is essential to the determination of when an investigation begins.

The AG looked to Black’s Law Dictionary for guidance (La. AG Op. 93-52).  In 1993, Black’s defined “investigate” as follows:  “To follow up step by step by patient inquiry or observation.  To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry.”  In 2012, the definition is a little shorter:  “1.  To inquire into systematically; to make the subject of a criminal inquiry; 2.  To make an official inquiry.”

The AG summarizes by stating that “if the investigation requires a close study or systematic inquiry into a situation, the protections afforded an officer under LSA R.S. 40:2531 apply.”  The AG further points out that the law requires that this close study or inquiry must be made with a view to possible disciplinary action, demotion, or dismissal.

Furthermore the AG indicates that “possible disciplinary action” should be construed as broadly as possible.  In short, the AG indicates that “any action taken by formal investigating authorities, such as the municipal internal affairs department, which could possible affect the job status of the officer requires that the minimum standards of LSA R.S. 40:2531 apply.”

What are these minimum standards by which investigations of police officers are to be conducted?

1.  The police employee under investigation shall be notified at the commencement of any interrogation of:

    1. the nature of the investigation;
    2. the identity and authority of the person conducting the investigation; and
    3. the identity of all persons present at the time of any interrogation.

It is important to note that the law requires the officer be notified of these things “at the commencement of interrogation.”  This is not necessarily the commencement of the investigation.

2.  Any interrogation of a police officer shall be for a reasonable period of time and allow for reasonable periods of rest and personal necessities of the officer.

In other words, no marathon interrogations while depriving that officer of sleep, food, etc.

3.  All interrogations of a police officer shall be recorded in full.  The officer can not be prohibited from obtaining a copy of that recording or a transcript of that recording upon their request.

4.  The police officer

    1. whether being questioned as a target or witness has the right to be represented by counsel, representative, or both;
    2. the officer shall be granted up to thirty (30) days to obtain such representation, during which time all questioning must be suspended.
    3. the officer’s counsel shall be allowed to offer advice to the employee or officer and make statements on the record regarding any question asked of the employee or officer at any interrogation, interview, or hearing in the course of the investigation.

5.  No statement made by the police officer during the course of an administrative investigation shall be admissible in a criminal proceeding.

6.  The investigation needs to be completed within 60 days.

One could probably write a book on this one paragraph.  I can assure you that many legal briefs have been written on this topic.  Following is my summary:

The investigating agency has 60 days to complete an administrative investigation of an employee.  The investigator can also petition the Civil Service Commission for an extension of that time limit, up to an additional 60 days.  There is some debate about whether that is the case in New Orleans since New Orleans is not subject to Municipal Fire and Police Civil Service law and does not have a Municipal Fire and Police Civil Service Board, but I will save that discussion for a later day.

With the extension, the investigating agency has up to 120 days to complete an administrative investigation.  These time restraints do not apply to criminal investigations, but they do apply to the administrative investigation of criminal allegations.  For example, if you are going to be charged by the District Attorney with La. R.S. 14:67, that investigation is not hampered by the time limitations found within LSA R.S. 40:2531(b)(7).  If your employer is investigating you for a possible violation of Rule 2, Moral Conduct, to wit: R.S. 14:67, then that investigation is subject to the time restrictions found within LSA R.S. 40:2531(b)(7).

It is important to note that the provisions of LSA R.S. 40:2531(b)(7), commonly known as the 60 day rule, are the only provisions of the Police Officer Bill of Rights not applicable to criminal investigations.

The investigation begins when it begins, but no later than 14 days from the receipt of a formal, written complaint.  This allows a few days for the investigating agency to taken in the complaint, conduct whatever intake functions are necessary, and assign the complaint for investigation.  In New Orleans, it is usually safe to go by the date on the DI-1.  The DI-1 is the result of the intake process.

A bigger question exists about investigations that begin before a DI-1 is initiated or in other agencies with different practices).  The Louisiana Attorney General indicates that an investigation begins “when an authorized person begins to make inquiry or collect evidence concerning a situation with an officer where the end result is “with a view to possible disciplinary action, demotion, or dismissal.””

An investigation ends when the officer under investigation is notified of a pre-disciplinary hearing, or a determination of an unfounded or unsustained complaint.  Exactly what constitutes this notice is the subject matter of another debate and will hopefully be settled by a Court.  I can say that the New Orleans Police Department’s position is that the investigation ends when the officer under investigation is given a form entitled “Notice to Law Enforcement Officer of Pre-Disciplinary Hearing or a Determination of an Unfounded or Unsustained Complaint.”  It is my position that this form is insufficient and the investigation is ended when the officer is issued a form titled “Notification of Disciplinary Hearing.”

LSA R.S. 40:2531(b)(8) specifically applies to Louisiana State Police, but is substantially similar to the provisions of LSA R.S. 40:2531(b)(7) discussed above.

What remedies are provided by the Police Officer Bill of Rights?

LSA R.S. 40:2531(C) provides the employee’s remedies if the minimum standards discussed above are not met.  The law states that “There shall be no discipline, demotion, dismissal, or adverse action of any sort taken against a police employee or law enforcement officer unless the investigation is conducted in accordance with the minimum standards provided for in this Section.  Any discipline, demotion, dismissal, or adverse action of any sort whatsoever taken against a police employee or law enforcement officer without complete compliance with the foregoing minimum standards is an absolute nullity.”