New Orleans Emergency Rate of Pay

On March 11, 2020, Governor John Bel Edwards declared and a Public Health Emergency for the State of Louisiana as it relates to COVID-19. Also, on March 11, 2020, pursuant to a filing in Civil District Court for the Parish of Orleans, State of Louisiana, Mayor LaToya Cantrell declared a State of Emergency for the City of New Orleans. See Mayoral Proclamation of a State of Emergency due to COVID-19.

Mayor Cantrell’s State of Emergency proclamation directs the Superintendent of Police to take command and control over all police officers in the City of New Orleans pursuant to La. R.S. 40:1387 along with all authority typically given by such a proclamation. As a result of the State of Emergency, some city employees were placed on civil leave and told to go home. Another group of city employees was told to go home and perform their regular job duties from home. Finally, a third group of employees was told they had to report to work at their regular place of work.

New Orleans Civil Service Rule IV, Sec. 11.1 states as follows:

If it becomes necessary for an employee (exempt and non-exempt) to work on any day when the Mayor of New Orleans has declared an official emergency and has requested that only essential employees report to work, the appointing authority should adjust the employee’s work schedule to allow another day(s) off during that work period as a substitution. If such a substitution is not possible, then, for working at such time, the employees shall be paid the following:
(a) All non-exempt employees shall be paid at a rate of one and one-half (1½) times their normal rate for all hours worked.
(b) All exempt employees shall be paid at a rate of one and one-half (1½) times their normal rate of pay. Normal rate of pay for exempt employees is defined as the weekly salary.
(c) In situations where the emergency lasts for less than a normal seven day work week, then exempt employees shall be paid at a rate of one and one-half (1½) times their normal hourly rate for all hours worked subject to the maximum allowed for a regular scheduled work day in keeping with Rule I, Number 40. Under no circumstances shall an exempt employee receive pay from this section that exceeds more than one and one-half times his normal weekly salary for an emergency event.
In all cases, this pay is to remain in effect until the Mayor announces the state of emergency has ended or an announcement is made that City offices are open for business and employees are to report to work, whichever comes first.
(d) When the Mayor of New Orleans has declared an official emergency on a day in which city offices remain open for business, exempt and non-exempt essential employees (except for highly compensated employees as defined by the FLSA) who are assigned to perform emergency/disaster field operations duties may receive five (5) percent over their normal rate of pay while engaged in such duties during a declared state of emergency. In cases where the emergency declaration extends beyond four (4) weeks, a request for extension and reasons therefore must be submitted by the Chief Administrative Office or other executive authority to the Civil Service Commission for approval along with an anticipated end date and a list of the essential employees who will remain in the emergency assignment. (amended September 25, 2017, adopted by the Council October 26, 2017)

(Section 11.1 adopted March 28, 1996, ratified by the Council April 18, 1996, amended May 15, 2006, adopted by the Council May 25, 2006, effective June 1, 2006, amended April 28, 2014, adopted by the Council June 2014, effective April 28, 2014)

Since there is a declared State of Emergency and some employees have been required to report to work and some employees were instructed not to report for work and were placed on civil leave, New Orleans Civil Service Commission Rule IV, Sec. 11.1 comes becomes effective as it relates to the pay for those employees required to report for work at their regular duty station.

There is no definition of “essential employees” or “non-essential employees.” However, based on Civil Service Rule IV, Sec. 11.1, we can determine who certainly constitutes an “essential employee” and who certainly constitutes a “non-essential employee.”

Reporting to work implies both the performance of job duties and the location those job duties are performed. Essential employees are those employees who were instructed to report to work at the employee’s regular place of work or another location as designated by the employee’s appointing authority as required to accomplish the employee’s job. Non-essential employees are those employees who are not required to report to any particular location or perform any job duties. Non-essential employees are those employees being carried under civil leave, of who were initially carried under civil leave at the beginning of the state of emergency. There is a third group of employees in the state of emergency related to COVID-19 — those who are working from home.

The emergency rate of pay was introduced to encourage employees to report to work as needed under emergency conditions. In other words, some employees have to come to work in spite of conditions which make reporting to work more dangerous than normal. In addition to merely encouraging employees to report to work as needed, the emergency rate of pay works to fairly compensate those employees who, because their jobs do not allow them to work from home, must expose themselves to the dangerous circumstances forming the basis of the state of emergency.

There is no question that the employees of the NOPD, NOFD, and NOEMS are essential employees. These employees are required to expose themselves to a potentially deadly virus by the very nature of their job. No matter what precautions are taken, our police officers, firefighters, and EMS personnel are required to be exposed to the threat imposed by SARS-CoV-2. In addition to our first responders, any other employee who is required to report to work at their normal place of assignment is an essential employee for the purposes of this declared State of Emergency.

I have heard several reasons why police officers should not get an emergency rate of pay:

Excuse #1: The City has not told essential employees to report to work while telling non-essential employees to stay home. This is not true for the reasons discussed above. There are employees who have been required by the city to physically report to the employee’s regular place of work to perform the employee’s job. There is also a group of employees who were either not required to physically report to the employee’s regular place to work or the employee was not required to perform any work at all while still being paid.

Excuse #2: This is a state of emergency that exists throughout the United States. Police officers around the country are required to work under similar circumstances. FEMA won’t be able to reimburse everyone. Article X, Sec. 10 of the Louisiana Constitution states that civil service rules have the force and effect of law. Therefore, New Orleans Civil Service Rule IV, Sec. 11.1 has the force and effect of law. Civil Service Rule IV, Sec. 11.1 does not state that essential employees are to be paid an emergency rate of pay only if the city is going to be reimbursed for the expenditure.

Excuse #3: Police officers already get extra pay from the State every month. State Supplemental Pay is not emergency or hazard pay. State Supplemental Pay is intended to supplement inadequate salaries offered to law enforcement officers by municipalities or parishes.

First responders exist in the same world as the rest of us. They have to worry about getting sick and bringing the virus into their homes with their families. However, they don’t have the option of working from home like I do, or not having to work at all and relying on civil leave. Finally, they still have to worry about things like getting shot while trying to protect people like me and you — which has happened twice in the last week to three officers.

Civil Service Rule IV, Sec. 11.1, which has the force and effect of law, states that during a declared state of emergency where some city employees are required to report to work in the field at a place determined by the city which is not home while other employees are told to stay home and are not expected to perform any work while being carried civil leave or are allowed to work at home requires that exempt and non-exempt employees who are required to report to work in the field at a place determined by the city must be paid time and one-half (1.5x).

I understand that the COVID-19 emergency has created a great deal of pressure on the city. However, that is no reason not to give city employees what is owed to them by state law. The color of the trip sheet doesn’t matter. Whether or not it is reimbursed doesn’t matter. Some employees are entitled to be paid 1.5x. If the city does not pay its employees what they are owed in this emergency, who is to say they will report to work as expected in the next emergency.

UPDATE: I have already written a letter to the Director of Personnel, Lisa Hudson, at Civil Service. I have asked that the matter be brought before the Civil Service Commission when they conduct a regular meeting. There have been a number of comments referencing a possible lawsuit. However, the Civil Service Commission has sole jurisdiction. So, it will be necessary to bring this issue before the Civil Service Commission before it can go to any court.

 

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.

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.

Continue reading

New Orleans Lieutenant Exam Candidate Review Sessions

On Monday, November 12, 2018, the New Orleans Civil Service Department sent test results from the recent Lieutenants Exam to the test takers. 74 NOPD Police Sergeants took the exam. Out of those 74, 51 passed the exam (69%) and 23 failed (31%). The highest score 94 and the lowest score was 20. The average score was 57 and 53 was the cut-off between pass and fail (the lowest passing score). The Lieutenants List can be found here.

Starting November 14, 2018, the Civil Service Department will begin having candidate feedback sessions with Ms. Bharati Belwalkar. Ms. Belwalkar is the Civil Service Department’s psychometrician who is dedicated to NOPD testing. The intent of this article is to try to give candidates a realistic idea of what to expect in that candidate feedback session.

First, the candidate feedback session is NOT an appeal of your score or a protest of any questions. Your score on the exam will NOT change as a result of the candidate feedback session. The purpose of the candidate feedback sessions is to help the candidate understand their areas of strength and improvement, and to better prepare for the next opportunity to take the exam.

You will NOT see the test questions, your answers, or how they were scored. You will be given information intended to help you focus your studies next time. If you know where your weakest areas were, then you will be able to prepare better next time.

The meeting, which will probably be recorded, will start off by reviewing the 3 main components of the exam: Part 1: In-Basket, Part 2: Structured Interview, and Part 3: Oral Presentation. All three of these components were equally weighted in calculating the candidate’s final score. You will see a graph that looks like this:

The graph shows each component of the exam, the highest score of each component, and the candidate’s score for each component. On the example above (not real test results), the candidate scored 67% on Part 1, 28% on Part 2, and 54% on Part 3. Clearly, the candidate did the best on Part 1 and the worst on Part 2. Ms. Belwalkar will discuss each component in terms of the candidate’s performance on the types of questions covered in it. If any of the raters had specific comments about the candidate’s answers, that information will be shared with the candidate.

Next, Ms. Belwalkar will go through the six competencies tested by the exam. Those competencies followed by the weight assigned to that competency are:

  1. Demonstrating Department’s Values (12%)
  2. Leadership and Supervisory Responsibility (26%)
  3. Operational Effectiveness (25%)
  4. Critical Thinking and Strategic Planning/Problem Solving and Decision Making (18%)
  5. Communicating Orally and/or in Writing (9%)
  6. Partnering with the Community (10%)

You will see another graph that looks like this:

Like the first graph, this graph shows the total percentage weight of each competency and the candidate’s percentage score for each competency. The example candidate profile indicates that the candidate demonstrated about 50% proficiency in every category. Because the competencies are weighted differently, it may be more important to strengthen up those areas, but it appears this candidate needs an equal amount of work across the board. Ms. Belwalkar will work with the candidate to make the information the most useful.

Finally, you will have an opportunity to ask any questions you may have. Remember, you will not have the opportunity to review your test answers, the scoring rubric, or the questions. I guess you can ask, but I would expect the answer to be that it can’t be shared. The reason for this is test security. Sometimes questions are re-used or are changed a little and then re-used. If the questions or answers to the questions were passed around, they would not be able to use any form of those questions again or risk the validity of the exam.

Each candidate’s answer was scored by 3 different raters who used a common rubric to score the exam. The 3 raters then discussed their ratings in order to eliminate error and reach a consensus score.

If you want to schedule a candidate review session, you can sign up for it here. If you have issues accessing this link, contact Ms. Belwalkar at 504-658-3508 or bbbelwalkar@nola.gov. Ms. Belwalkar is New Orleans Civil Service Personnel Administrator for the Test Development & Validation Division, working in the capacity of Senior Psychometrician.

We know that there are going to be at least 23 people who are not pleased with their test scores. Unfortunately, the New Orleans Civil Service Rules do not contain any process for appealing a score or how your exam was graded. When the exam contains a multiple-choice section, the Civil Service Department allows for protests of questions. In those circumstances, the protest is made before the exam is scored and the answer can be validated specifically by reviewing the appropriate text. In the event that a protest reveals a problem, the answer key can be changed or double-keyed to fix the problem. However, there was no multiple-choice section on this exam. The answers, and the scoring rubric, were developed in consultation with subject matter experts (SME’s) from the NOPD. The overall examination and its scoring rubric were reviewed by another group of NOPD SME’s to ensure accuracy and thoroughness. Since the types of questions and answers do not lend themselves to protest, none were allowed. Each exam was graded the same way by 3 different raters. The Civil Service Department has done there absolute best to make sure that everyone had the best chance to succeed.

I also want to take this opportunity to thank Commander Louis Dabdoub for donating his time to help FOP help NOPD officers prepare for the exam. I also want to thank Travers Mackel of WDSU for helping candidates prepare for the exam. As usual, the FOP is dedicated to providing whatever assistance it can to help FOP members succeed.

FOP Legal Plan and NOPD Discipline Part 2 – A Sustained Disposition

In my previous post about the FOP Legal Plan and the NOPD disciplinary system, I reviewed some general things about disciplinary investigations and the FOP’s Legal Defense Plan. I discussed notice, the FOP’s Salary Reimbursement Option, Extension Requests, and a few other things. This time, I am going to assume that the investigation has been completed – you and your FOP attorney have made a statement to the investigator and the investigator is ready to recommend a disposition.

The NOPD requires that the investigator issue NOPD Form 308 to the accused officer as the last step in the investigation before sending the case up the chain of command for review. NOPD Form 308 bears the title Notice to Accused Law Enforcement Officer Under Investigation of Completed Investigation. While the title of this form has changed a number of times over the years, the purpose has not. As I mentioned in the prior post, La. R.S. 40:2531(b)(7) requires that an investigation be completed within 60 days (120 days max). The statute says that the investigation will be considered complete upon notice to the law enforcement officer under investigation of a not sustained or unfounded disposition or notice of a pre-disciplinary hearing. NOPD Form 308 purports to cover all of these circumstances, thereby marking the end of the investigation. The investigator completes this form without approvals up the chain of command. Therefore, the disposition(s) can change.

NOPD Form 308 includes dates for a Pre-Disposition Conference and a Pre-Disciplinary Hearing, as well as each charge that was alleged and the disposition recommended by the investigator for that charge. Since the investigator does not know who is going to hold either of these hearings or the content of the hearing officer’s calendar, these dates are simply made up. As of this date, I have not seen a pre-disposition conference or a pre-disciplinary hearing held on the dates found on NOPD Form 308.

If the disposition on all charges is Not Sustained, Unfounded, or Exonerated (or any combination thereof), there will not be any type of hearing to come. I have had a number of questions in that regard lately. The NOPD does not conduct a pre-disposition conference or a pre-disciplinary hearing on any case with no sustained allegations.

If there is an allegation with a sustained disposition, then there will be at least one, and maybe two, hearings that follow. Depending on who conducted the investigation, the accused officer will receive either a Notice of Pre-Disposition Conference or a Notice of Pre-Disciplinary Hearing, or both.

If someone assigned to PIB conducted the administrative investigation and the potential penalty is not severe, then PIB will conduct the Pre-Disposition Conference and the Bureau to which the accused officer is assigned will conduct the Pre-Disciplinary Hearing. In that case, the accused officer will be issued a Notice of Pre-Disposition Conference by PIB at least 5 days prior to the hearing. If at the conclusion of the Pre-Disposition Conference there are still sustained allegations, then the accused officer will receive a Notice of Pre-Disciplinary Hearing a few weeks after the Pre-Disposition Conference either from the Division where the accused officer is assigned.

If the investigation is conducted by someone from the accused officer’s Bureau (usually the same Division) and the potential penalty is not severe, then the Pre-Disposition Conference and the Pre-Disciplinary Hearing will be conducted by the accused officer’s commander. These two hearings will be conducted together.

If the potential penalty for any sustained violation is severe (usually a 30-day suspension or greater), then the Pre-Disposition Conference and the Pre-Disciplinary Hearing are conducted together by a Superintendent’s Disciplinary Committee. A Superintendent’s Disciplinary Committee is chaired by the accused officer’s Bureau Chief and consists of the accused officer’s Bureau Chief and two (2) other Bureau Chiefs.

Pre-Disposition Conference

The purpose of a Pre-Disposition Conference is to finalize the investigator’s recommended disposition. The accused officer should be given notice of what alleged violations were sustained and why they were sustained. This notice would be found on the Notice of Pre-Disposition Conference. It is not on NOPD Form 308. The purpose of this hearing is to give the accused officer an opportunity to respond to the allegations sustained against him or her and, hopefully, eliminate any mistaken sustained allegations. At this hearing, the accused officer has the chance to explain why the sustained charges should not have been sustained.

It is important to note that the accused officer has the option of waiving the Pre-Disposition Conference. Commonly, the Notice of Pre-Disposition Conference is emailed along with a form which can be used to waive the Notice of Pre-Disposition Conference. If the accused officer waives the Pre-Disposition Conference, then all of the charges that were recommended sustained by the investigator will remain sustained. DO NOT WAIVE THIS PRE-DISPOSITION CONFERENCE WITHOUT CONFERRING WITH COUNSEL. I have seen where accused officers have inadvertently waived the Pre-Disposition Conference. Make sure you read what you are signing before signing.

Pre-Disciplinary Hearing

If, at the conclusion of the Pre-Disposition Conference, there are still sustained violations, the accused officer will have to attend a Pre-Disciplinary Hearing. The purpose of the Pre-Disciplinary Hearing is to give the accused officer the opportunity to give any mitigating factors and for the accused officer’s commander to recommend a penalty to the Superintendent. The disposition of the alleged violations cannot be changed at this hearing. The penalty is derived from the penalty matrix found in NOPD Chapter 26.2.1, which contains a presumptive penalty, a penalty with mitigating factors, and a penalty with aggravating factors. The penalty recommended by the accused officer’s commander can only be implemented by the Superintendent and is occasionally (not too often) altered by someone up the chain of command.

Superintendent’s Disciplinary Committee

If the potential penalty includes a suspension in excess of 30 days, demotion, or dismissal (termination), then the hearings are conducted together by a Disciplinary Committee. A Superintendent’s Disciplinary Committee is chaired by the accused officer’s Bureau Chief. Two other Bureau Chiefs will fill out the three-member committee. At that hearing the accused officer is given the opportunity to explain why the charges should not be sustained, as well as the opportunity to offer mitigating factors that might influence the disposition or penalty. It is possible for an allegation which has relatively minor potential penalties to be heard via Superintendent’s Disciplinary Committee if there is another accused officer with potentially severe penalties.

Disciplinary Letters

The Louisiana Constitution requires that any disciplinary action taken against a permanent, classified civil service employee be with “cause expressed in writing.” As such, the disciplinary process is not completed until either the Superintendent signs off on dispositions of Not Sustained, Exonerated or Unfounded, or the accused officer is issued a disciplinary letter from the Superintendent. If the accused officer is dismissed (terminated), then the accused officer will be given the disciplinary letter the same day. If there is any other penalty assessed other than termination, then the accused officer will be required to sign for a disciplinary letter some time later. It could be 6 months later or longer. The disciplinary letter will indicate when the imposed discipline must be served. Since the disciplinary letter constitutes the end of the disciplinary process, any appeals to the Civil Service Commission must follow issuance of the letter. An accused officer has 30 days from the date typed on top of the disciplinary letter to file an appeal. Since the Civil Service Commission has original and sole jurisdiction over these matters, disciplinary actions taken in accordance with Civil Service Rule IX can only be appealed to the Civil Service Commission. The disciplinary letter further serves to limit any subsequent proceedings to the grounds specified in the letter.

As you can see, there is a lot to the disciplinary process. For FOP members who do not deal with the disciplinary process every day, it can be a lot to take in. Most officers simply aren’t familiar with the ins and outs of the process because they don’t often have to interact with it. In addition, it has been my experience that most officers who are quick to explain how the system works provide as much misinformation as they do quality information. Fortunately, the FOP provides attorneys to help its members navigate the tricky waters of the disciplinary process. Pick up the phone and call. That’s all you have to do and I will be more than happy to help.

Next time… Critical Incidents and Criminal Investigations.

 

The FOP Legal Defense Plan and NOPD Discipline

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

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

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

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

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

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

Salary Reimbursement Option (SRO)

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

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

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

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

Do they need to notify you of a pending complaint?

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

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

Extension Request Hearings

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

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

 

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.

2017 in Review

At the beginning of the year, I like to review and compare the prior year’s activity with other years. In addition, since there have been so many new hires at NOPD, it always helps to give some context to the system that most officers don’t come into contact with often enough to be familiar with.

The FOP continues to provide the best legal assistance for law enforcement officers through its Legal Defense Plan. The Legal Defense Plan offers its members legal representation for any administrative disciplinary proceeding, civil defense resulting from on-the-job actions, and criminal allegations. There is no judgment involved. If a member requests legal services, they get it.

There is no situation which is too big or too small. The Legal Plan is set up to be able to handle situations that garner national attention. At the same time, we recognize how much law enforcement officers value their service record and we treat the most minor of circumstances with the same attention.

It is most beneficial to everyone when an officer who finds themselves involved in any way in one of the covered types of events contacts us as early as possible. I got a call from someone recently who had resigned under pressure to do so and felt like it shouldn’t have gone that way. I can’t argue with that – I don’t think anyone should be pressured into resigning without at least having the opportunity to meet with counsel. However, this person didn’t call until after he had resigned. As much as I would have loved to be able to help, the act of resigning eliminates almost every avenue of redress. So, call early and stay in touch.

My brother-in-Law, Corey Lloyd, was admitted to the Louisiana Bar in 2017. He had been helping me with Civil Service appeals while he was in law school. Since he is now a certified member of the Bar, he is now available to assist in situations which call for more than one attorney or when calendar conflicts prevent me from being somewhere. It is always nice to have another attorney committed to helping FOP members. He has also been helping FOP members with Family Law issues. The FOP offers a $400 (4 hrs at $100/hr) benefit per year to each member for Family Law issues.

2017

In 2017, I represented 410 individual officers in one capacity of another. That is up a little from 2016’s 398 officers. For those 410 officers, I appeared with FOP members at:

  • 103 disciplinary hearings (up from 83 in 2016)
  • 251 Statements (up from 228 in 2016)
  • 102 Civil Service Extension Request Hearings
  • 17 Accident Review Board Hearings (down from 36 in 2016)
  • 13 Civil Service Appeal Hearings (down from 23 in 2016)
  • 2 Officer Involved Shootings

In addition, I assisted FOP members with:

  • 85 Notary Service
  • 31 Personal Legal Needs
  • 10 Negotiated Settlements

While it appears that complaints were down a little from 2016-2017, it was still a busy year. Improvements were made to the disciplinary system in the penalty matrix and the use of BWC’s to clear complaints. Civil Service appeal hearings are down primarily because more Civil Service appeals were settled amicably before a hearing was necessary. The Personal Legal category refers to legal needs of members that are not covered by the Legal Defense Plan. The FOP offers each member a benefit of 2 hours of legal services per year for things outside of the Legal Defense Plan. This might include wills, living wills, successions, etc. It is separate from the Family Law benefit. Notary services are available to FOP members at no cost. I also continue to serve as Employee Representative for Crescent City Lodge members, helping them to address almost any employment related issues with NOPD.

At Livaccari Law, we also represent officers who have been involved in automobile or motorcycle accidents on a regular basis. My father, Tony Livaccari, heads up that aspect of the practice with more than 30 years of experience. Anyone who has worked with Tony knows that he looks out for FOP members.

I cannot stress enough the importance of picking up the phone and calling. I will respond to the scene of officer involved shootings. We can’t help when we don’t know a member is in need of help. In addition, as noted above, sometimes things happen which preclude our helping in any meaningful way. So, as I stated above, call early on. Nothing is too trivial and I’m not too busy to talk, even if I have to call you back – you can always text.

As I have stated numerous times, I feel as though I am blessed to be able to represent FOP members. I was admitted to the Louisiana Bar after serving 11 years with NOPD. I started representing law enforcement officers, primarily in New Orleans, in 2008 when I retired from NOPD. I still spend the majority of my time representing NOPD members. I do represent FOP members in other jurisdictions in Louisiana and do work for both the Crescent City Lodge and the Louisiana State Lodge. I look forward to doing more of the same in 2018. Additionally, the addition of Corey Lloyd to available counsel will make it easier to do this job better. So, thank you to the FOP Crescent City Lodge, particularly Jimmy Gallagher, who got me involved with the FOP back in 2004. Thanks to Darrell Basco, President of the Louisiana FOP, for allowing me to represent the over 6,000 FOP members in Louisiana. Finally, thanks to you, the FOP members for keeping me on your speed dial.

Assessment Center Prep

The Fraternal Order of Police will be having two classroom training dates to help members of the NOPD prepare for the December 20, 2017 Sergeants Exam Assessment Center.

On December 9 and December 16, 2016, NOPD Commander Louie Dabdoub will be teaching his successful assessment center methodology on behalf of the FOP.

The December 9 class will be held at the NOPD Academy and will begin at 3:00 pm.

The December 16 class will be held at Lakeview Presbyterian Church, located at 5914 Canal Blvd. and will begin at 3:00 pm.

It is likely that both of these classes will last several hours.

Since the assessment center is just a few weeks ago, we decided to post a video of the introductory lecture here for officers to review. Download the two-page method steps here. You will need it.

Feel free to watch these videos as many times as you need. At the classroom sessions, Commander Dabdoub will apply these steps to actual scenarios and give feedback on answers given by the class.

Part 1 of 2

Part 2 of 2

Click here to download the Civil Service Department’s NOPD Sergeant Work-Sample Test.