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.

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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.

The Sewerage & Water Board, the New Orleans Civil Service Commission, and the Media Attention

The following is the entirety of my post regarding the NOLA.COM story entitled Sewerage & Water Board, not Civil Service, to blame for hiring delays.

The Civil Service Commission Chairman is right that the Sewerage & Water Board asked that the ability to hire people be delegated to the Sewerage & Water Board. At that time, I stood up and argued against that delegation on behalf of the Fraternal Order of Police. It was not that the request to delegate that authority directly impacted the police department, but that it adversely impacted the civil service system in general.

The Civil Service Commission Chairman correctly states that the Sewerage & Water Board has failed in hiring new people, not the Civil Service Department. What she fails to state is that in spite of these failures, the Civil Service Commission has not revoked that delegation of authority and continues to facilitate weakening Civil Service.

As the article points out, the Landrieu administration has attempted to “reform” the Civil Service Commission since 2010. The “reforms” they have instituted are antithetical to the purpose and goals of the Civil Service system. The Civil Service Commission has been complicit in these “reforms” since Mayor Landrieu began replacing Commissioners on the Civil Service Commission with people who are inclined to give the Mayor what he wanted in spite of the basic tenets of any merit-based system of employment.

As I stated above, I argued against delegating hiring authority to the Sewerage & Water Board. What they have done is reduce funding and staffing for the Civil Service Department and then complain about how the Civil Service Department is unable to meet the needs of various departments and then used this to justify decimating the Civil Service system in New Orleans. The other “reforms” the Landrieu administration and the Civil Service Commission have implemented are as much of a failure as the Sewerage & Water Board hiring delegation. Unfortunately, those failures do not result in street flooding or maybe they would have gotten some media attention. So, while we are on the subject of Civil Service, let’s talk about some other stuff.

The Mayor’s Great Place to Work Initiative, which was the greatest part of the “reforms” implemented by Landrieu, changed the way promotions were made. In effect, employees seeking a promotion take a test and all persons who pass the test are eligible to be promoted. Unfortunately, Louisiana Constitution Article X, Section 7 reads as follows:

“Permanent appointments and promotions in the classified state and city service shall be made only after certification by the appropriate department of civil service under a general system based upon merit, efficiency, fitness, and length of service, as ascertained by examination which, so far as practical, shall be competitive. The number to be certified shall not be less than three; however, if more than one vacancy is to be filled, the name of one additional eligible for each vacancy may be certified. Each commission shall adopt rules for the method of certifying persons eligible for appointment, promotion, reemployment, and reinstatement and shall provide for appointments defined as emergency and temporary appointments if certification is not required.

Promotions under the Great Place to Work are not competitive and the test is not used to determine merit, efficiency, fitness, or length of service, as the Constitution requires. In addition to these recently acquired deficiencies, the Civil Service Rules on promotions prior to the Great Place to Work Initiative were the product of a consent decree in the matter of Larry Williams v. City of New Orleans, 725 F2d 1554 (5th Cir. 1984). The consent decree in the Williams case set out to eliminate discrimination in the promotional process.

The Williams consent decree developed the use of banding test scores to allow the NOPD greater flexibility in choosing promotional candidates to ensure racial equity while maintaining the Louisiana Constitution’s requirements of assessing merit, efficiency, fitness, and length of service through competitive testing. In addition the usage of banding allowed the Civil Service to reduce the error inherent in testing, making test results more accurate. The Williams consent decree, and the resultant banding system, was the result of a number of expert psychometricians and experts from other relevant fields under the oversight of a federal judge. The Great Place to Work Initiative undid the changes implemented by the those experts via the Williams consent decree. The Great Place to Work Initiative re-opened the door to discrimination, favoritism, nepotism, and other ism’s. The Great Place to Work Initiative was not compiled by experts in the field, but it negated changes that were made by experts.

The Great Place to Work Initiative has also led to morale problems. Employees are now uncertain about what it takes to get promoted. Given that uncertainty, it is nearly impossible to resist the conclusion that promotions are being made on the basis of who you know instead of what you know or your ability to perform the job. None of this inspires confidence in the system or the department’s leadership.

In addition to the changes made to the promotional system, the Civil Service Commission has recently added 16 unclassified positions to the New Orleans Police Department. These 16 unclassified positions were previously held by classified employees. The Civil Service Commission approved this request in spite of objections by the Civil Service Department and arguments presented by myself and others. Simply put, the addition of these unclassified positions was contrary to the Civil Service Rules and the underlying notion of the merit-based system of employment. Unclassified positions are the exception to the rule and the addition of these unclassified system effectively denies classified employees a promotional opportunity because they have effectively replaced the classified position of Police Captain.

This just skims the surface of what is wrong with the Civil Service Commission now and the problems caused by the Great Place to Work Initiative. The New Orleans Fire Department has experienced many of the same problems as the NOPD. I am sure there are issues I am unaware of. Deputy Mayor Andy Kopplin, CAO at the time, once told me that the Civil Service Department was too overly concerned with fairness. Maybe in private enterprise an employer can place other things ahead of fairness. However, in public service, fairness is the cornerstone of a healthy Civil Service system.

The Civil Service Commission was right to point the finger at the Sewerage & Water Board regarding these hiring problems. But, the Civil Service Commission needs to look a little closer to home regarding the Great Place to Work Initiative. Maybe they can avert the inevitable disaster that will result from this wanton destruction of the Civil Service Rules.

The Great Place to Work Initiative needs to be repealed. There is nothing wrong with implementing changes to improve the efficiency of the Civil Service Department. However, wholesale changes to a system which was the biggest reform to public service this country has ever seen is a tremendous mistake — a mistake which has already been made.

Donovan Livaccari, Spokesman
Fraternal Order of Police
Crescent City Lodge #2

#NOPD 2017 Pay Plan Initiative

The New Orleans Police Department announced new pay increases on July 5, 2017. Since then, I have been approached with numerous questions about this pay plan. The following is my appreciation for the plan as it exists now. The plan has to go before the Civil Service Commission and the City Council for approval, but that seems like that won’t be a problem. During recent discussions of a proposed special rate of pay for Homicide Detectives, the FOP suggested that the NOPD needed to examine all special rates of pay and advocated for a bold pay initiative to help with recruitment and retention. This plan, which was put together by the NOPD’s Deputy Chief of Staff, is a step in the right direction. We made some additional suggestions and there are a few questions about this plan that remain unanswered. The following is the plan as it exists today. Salaries below do NOT include state pay or millage. 

Police Recruit salaries will remain unchanged at $40,391.84. Our suggestion was that NOPD increase this and all other salaries by an additional 5% so new hires also benefit from the round of increases.

Police Officer I will become Police Officer and the base salary will increase to $46,885.00, a 10.45% increase.

Police Officer II, III, and IV will be consolidated as Senior Police Officer. The base salary for Senior Police Officer would be $51,783.84, a 16.08% increase over P/O II, 10.45% over P/O III, and 5.09% over P/O IV. Anyone who is a P/O II, III, or IV will automatically become a Senior P/O at the time the plan is implemented. The FOP is encouraging the department to allow P/O II promotions prior to the implementation of the plan to maximize the number of officers who are eligible to become Senior P/O. 

A new classification titled Master Police Officer would have a base salary of $57,194.53. The Master Police Officer position would be unlike Senior Police Officer insofar as there will be a limited number of Master P/O positions available and the test will be a competitive test. Everyone who qualifies to be a Senior P/O will become a Senior P/O. Master P/O’s would be selected in much the same way Sergeants are selected now (which, frankly, is a mystery to me). Master P/O’s will be limited by assignment. For example, each district may have one Master P/O per platoon. Master P/O’s may also have some supervisory responsibility. There will probably not be an educational requirement for Master P/O.

Police Sergeant will have a base pay of $63,170.56. This represents an increase of 16.08%.

Police Sergeant will have a base pay of $69,771.01. This represents an increase of 19%.

Police Captain will be increased to $77,061.11, an increase of 10.45% and Police Major will be increased to $80,987.01, an increase of 6.41%. Of course, we are operating under the belief that there won’t be any new Captains or Majors any time soon.

The plan also includes 4 detective “positions.” Detective would be the effective equivalent of Senior Police Officer. Lead Detective will be the effective equivalent of Master Police Officer. Detective Sergeant would be the effective equivalent of Police Sergeant and District Detective Lieutenant would be the effective equivalent of Police Lieutenant.

I do not think that a decision has been made about whether the detective positions would be actual classifications, some type of sub-classification, or a special rate of pay. Based on the administration’s recent addition of unclassified commanders and an overall assessment of the department’s current philosophy about various positions, it is my belief that the department will want to be able to un-make a detective easily. In order to be able to un-make a detective easily, the detective’s positions has to either be a special rate of pay or some type of sub-classification. Any change of classification which results in a reduction in actual pay (not a special rate of pay) is a demotion. Demotions must be supported by cause expressed in writing and are disciplinary actions. It is my belief that the department wants to be able to make and un-make detectives much like they can make and un-make Commanders now. We will see how this shakes out, but I think we can count on detectives making 10% more than their effective equivalent. Of course, this is speculation.

So, the questions that remain are things like:

  1. How much time in grade will be required for Senior P/O? I believe the answer will end up being 3-4 years.
  2. How much time in grade will be required for Master P/O? I believe the answer will likely be the same as for Police Sergeant.
  3. Will the minimum requirements for Police Sergeant change? I don’t think so.
  4. How will the detective positions shake out? It may not be a true career path.

If there are questions, feel free to ask. I don’t know if I have the answer, but I will try. Also, any NOPD employees who have thoughts or suggestions about the foregoing, feel free to share. A copy of the proposal can be downloaded here (.pdf).

Unclassified Positions and Reform in the #NOPD

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Recently, I wrote about the New Orleans Police Department’s request to the New Orleans Civil Service Commission for the creation of 16 new unclassified jobs in the NOPD.  The NOPD made its pitch at the February 20, 2017 meeting of the Civil Service Commission and it received some media attention here and here.  The Civil Service department opposed the creation of these unclassified positions, referring to the request as “unprecedented.”  After hearing from the NOPD, myself, on behalf of the FOP, Capt. Mike Glasser, PANO, Lt. Keith Joseph, BOP, and a few others, the Civil Service Commission took no action to allow the Civil Service Department to complete its work and put the matter on the agenda for the March meeting (March 20 if anyone wants to accompany me on behalf of the FOP).

I do not intend to re-post my argument against the creation of the unclassified positions, but for those who have not had the chance to read this article or my letter to the Civil Service Commission in this regard, the Civil Service Rules, which have the force and effect of law, require that in order for a position to be considered unclassified, the job’s responsibilities are not appropriate for anyone in the classified service and should not be performed by anyone in the classified service.  Furthermore, someone serving in an unclassified position must have policy-making authority which is not subject to further review or modification.  Finally, the Civil Service Commission is required to audit the position regularly to make sure that it is still not fit for the classified service.  As both Superintendent Harrison and myself made a point of saying, unclassified positions are the exception to the rule in a merit-based system of employment like Civil Service.

Currently, there is no “Commander” position, really.  There is a “Commander” assignment.  The Commander assignment, which must be filled by someone holding the rank of Police Lieutenant or higher, comes with a special rate of pay.  While I am unaware of anyone actually pushing this particular issue, the NOPD stated that one of the reasons we need to reconsider this special rate of pay is that a special rate of pay does not confer any grant of authority.  So, the question is does a Police Lieutenant in the position of Commander have the authority to issue orders to a Police Major?  While I am unaware of anyone pushing this issue, there are reasons to reconsider the use of a special rate of pay for commanders.  The majority of people assigned to Commander positions are in the rank of Police Lieutenant.  Police Lieutenants are non-exempt employees.  That means they should make overtime like all other non-exempt personnel under the FLSA.  However, they do not get overtime.  They are currently being treated as exempt employees.  While their pension is controlled by their actual rate of pay, terminal leave is paid to these individuals based on their Civil Service classification.  Finally, it is just an abuse of the special rate of pay provisions.  This special rate of pay scheme was put in place in 2011 after the Civil Service Commission told then Superintendent Serpas that he could not have 16 unclassified Police Colonel positions.

So, if the positions were not fit to be unclassified in 2011, what has changed that would make them appropriate today?  Well, while not answering the preceding question, Superintendent Harrison said that Department of Justice report which led to the current Consent Decree indicted the prior leadership “had largely acquiesced to wide-spread abuses by officers at all ranks.”  Superintendent Harrison went on to praise the accomplishments of individuals currently in the position of Commander.  Finally, the Superintendent insisted that it was critical that he be able to “swiftly replace leaders who are not performing to standard.”

What is exceedingly clear from the arguments made by Superintendent Harrison is that the NOPD has some good leaders in the position of Commander and that Commanders are performing the jobs previously held by officers in the classified service and that Commanders do not have the type of policy-making authority that is not subject to further review or modification.  What is clearly lacking is any logical connection between the existence of the Commander special rate of pay and any of the accomplishments of the folks holding those positions.

During the meeting, Commissioner Stephen Caputo, the newest member of the Civil Service Commission, noted that on several instances in my letter to the Commission I stated the position of Commander had been historically held by Police Captains and Police Majors.  He then asked if I was advocating for the status quo, or doing things as they have always been done.

My response was that I was not arguing for the status quo, but that the Civil Service Rules require that the job responsibilities be unfit for performance by anyone in the classified service.  History shows us that prior to 2011, the job responsibilities were performed by employees in the classified service.  Nothing has changed to make the jobs unfit for the classified service.

That does not mean that we have to maintain the status quo.  For example, the NOPD has the longest working-test period for employees.  Working-test periods, otherwise known as probationary periods, are set at 6 months in the Civil Service Rules with a maximum of 1 year.  The NOPD has 1-year working-test periods across the board.  That means that if someone is promoted to the rank of Police Captain and is unable to meet expectations, they can be demoted to their prior classified position — for just about any reason.  Generally speaking, if someone is incapable of performing a job, that incompetence will reveal itself within a year.  My point is that before we go shopping for a new toolbox, maybe we should make sure that we are making the best use of the tools we already have.

Civil Service Commission Chair Michelle Craig said that the Commission wanted the opportunity to examine best practices.  While the idea of “best practices” aggravates me to no end, I was fascinated by Superintendent Harrison’s reply that NOPD was re-writing the best practices and, therefore, what they are doing is the de facto best practice.

In today’s environment of instant gratification, we have to be able to point out real-time problems to demonstrate why these ideas that run contrary to the civil service philosophy should be avoided.  That is an impractical demand.  However, make no doubt about it, it is coming.  There will be a discriminatory application of the “Great Place to Work Initiative,” if there hasn’t been one already.  The creation of 16 unclassified Commander positions, would eventually prove problematic.

The first merit-based civil service system can be traced back to Imperial China and Emperor Wen of Sui (AD 605).  It wasn’t until the 1940’s that Louisiana embraced the civil service system.  Even then, it was repealed in 1948 and re-established in 1952.  Since then, more than a few changes have been made to how civil service systems are administered.  However, the idea of a merit-based system of employment utilizing objective standards and competitive testing has persisted.

So, while I am not advocating doing things as we did them in 1992, I am advocating the maintenance of the underlying set of guiding principles which have served us well for a long time.  We don’t have to throw the baby out with the bath water.  We don’t ditch democracy just because there is a more efficient way to administer the Department of Education.  The New Orleans Civil Service Commission has taken some steps recently which are downright scary.  The “Great Place to Work Initiative” dismissed important civil service principles relating to promotions and competitive exams.  Of course, the NOPD would point to successes of newly promoted sergeants or lieutenants as if that is the result of the new system in some way.  If you are thinking they wouldn’t do that, that is exactly what they are doing with the Commander position.  Granting the NOPD 16 unclassified positions to replace the special rate of pay for Commanders would be counter to the underlying fundamentals of the civil service system.  Does that mean it has to be done the old way?  No.  It just means it shouldn’t be done the way the NOPD has proposed.

New Orleans Civil Service Commission Meeting 2/20/2017

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The New Orleans Civil Service Commission is set to hold its regular monthly meeting on Monday, February 20, 2017.  At that meeting, the Commission will consider a request by the New Orleans Police Department to add 16 unclassified positions.  These 16 unclassified positions would seek to legitimize the position of Commander, which is currently a special rate of pay based on the assignment as commander of one of the Department’s 16 divisions.

The Crescent City Lodge of the Fraternal Order of Police opposes this request.  In short, the Department should use classified positions wherever possible.  This protects the employee, the public, and the integrity of the system.  Since the beginning of time until Chief Serpas’s recent tenure as Superintendent, these positions have generally been held by officers holding the classified rank of Police Captain and Police Major.  Those classifications are still available.

The use of Police Captain and Police Major for these positions not only shores up the integrity of the system, but provides officers with a well-defined career path.  As it stands today, these positions are being held by Police Lieutenants who have no job security.  So, the administration can cut their pay significantly for any number of unlisted reasons.

This, along with the changes made to the recent promotional system, has taken much of the fairness out of the promotional system of the NOPD and left it vulnerable to the type of political interference the Civil Service system was designed to eliminate.

CLICK HERE TO READ THE LETTER SUBMITTED TO THE COMMISSIONERS OF THE NEW ORLEANS CIVIL SERVICE COMMISSION.

NOPD Disciplinary Regs

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On May 15, 2016, the NOPD enacted new disciplinary regulations. The effects of these disciplinary regulations have not been felt up to this point. This is because investigations resulting from dates of occurrence before May 15 have been handled under the old procedure. However, investigations resulting from alleged incidents occurring after May 15 will be handled using the new procedure.

There are two major impacts to the disciplinary system resulting from the new regulations. First, the number of repeat offenses is going to increase. Whether a sustained violation is a second or third offense will be based on the category of the offense and its proximity to other incidents in a similar category. The categories are determined by looking for a letter near the violation which will correspond to a particular penalty range.  In the past, an officer needed to commit the same violation for the violation to become a second offense.  Now, the violations could be completely unrelated and still become a second or third offense.

The second significant impact will be the way disciplinary hearings are conducted.  The bureau conducting the investigation will now make the determination of whether the investigator’s recommend a disposition stays as recommended or not in a pre-disposition conference. In the not so distant past, the investigator’s recommended disposition would be reviewed by the officer’s command to make a determination as to whether that recommended disposition stood.

For example, if an officer assigned to the Operations Bureau was investigated by PIB for a violation which was ultimately sustained, the disciplinary hearing would have been held in its entirety by a member of the Operations Bureau. Now, in those same circumstances, a pre-disposition conference would be held by PIB which would determine the final disposition of the matter and only the penalty would be decided by the Operations Bureau.  If the Operations Bureau conducts the investigation, then the Operations Bureau would conduct the pre-disposition conference and the pre-disciplinary hearing to determine the penalty.  If the officer is assigned to ISB, MSB, or the Superintendent’s staff, you can substitute ISB, MSB, or Superintendent’s Staff for Operations Bureau in the above example.

This removes one of the checks and balances that previously existed. I suspect that the results will be an increased number of sustained violations and an increased number of Civil Service appeals. Fortunately, you have the FOP Legal Defense Plan and dedicated attorneys.  If you do not have the FOP Legal Defense Plan, it is never too late to join.

For alleged violations which occurred before May 15, 2016, the old system and the old disciplinary penalty matrix should be used. For any alleged violations occurring after May 15, the new system and the new penalty matrix will be used.

I want to encourage members to call as soon as they learn about an investigation. It is better for me to be involved as early as possible. If more of these investigations end up in appeals, as I suspect, it will be better for the officer if I am involved earlier in the process.

Remember, there is no cost to the member for legal services covered by the FOP Legal Defense Plan. Also, it is important to remember that in order to qualify for the salary reimbursement option, you must be represented by an FOP attorney during the course of the investigation.

Finally, I want to recommend to FOP members that you use the app Signal for private text communications. This app is available for iOS, Android, and Chrome for desktop. It is free and is super simple to set up. No account is needed — only a phone number.  Best of all, all messages sent and received using Signal can only be read by the sender and recipient because they are encrypted end to end.

To recap, I want to encourage all members to call your FOP attorney as soon as you learn of a disciplinary investigation. If you are notified via email of a Civil Service extension hearing, that means you are an accused officer in a formal disciplinary investigation (also a good time to call).  The changes to the disciplinary regulations make it more important than ever for you take advantage of the representation available to you.

Opinions are like ________. Everybody has one.

Today (9/30/16), Jarvis DeBerry published his opinion on the recent interest in the NOPD’s investigation into the sex crimes unit and several officers that resulted from a report by the Office of Inspector General.  Mr. Debeery’s opinion is not that of a reporter — someone interested in ascertaining the facts of a situation.  Mr. Debeery’s opinion is exactly that — an opinion — based on fallacies and prejudice.

Let’s start with what is true (partly).  Mr. Debeery charges that my statements about this investigation prove “the unions (the FOP) reflexively defend their members, no matter the details of criticism.”  I am an attorney.  Several of the officers investigated by the NOPD in this matter are my clients.  The relationship is attorney (me) – client (officer).  The FOP is not a party to that relationship.  A lawyer should act with “commitment and dedication to the interests of the client and with zeal in advocacy on the client’s behalf.”  I have a responsibility to defend my clients.  That is what I was hired to do.  While it is true that the Fraternal Order of Police in New Orleans does not hesitate defend its members when it is called for, that simply does not fit into the equation in these circumstances.

Mr. Debeery seems to find it incredulous that I indicated that I did not know what the officers were accused of.  He says “But there’s no excuse for Livvacari not knowing what the accusations are.”  He then refers to the November, 2014 report by the Office of the Inspector General making which made their “transgressions” “quite plain.”

Mr. Debeery states that the Inspector General “didn’t treat it’s investigation in to the sex-crimes unit like the typical report that accuses an agency of being wasteful with its resources.”  I agree with that statement and maybe this investigation is an indication that the Inspector General should stick with what he knows.

The first thing cited by Mr. Debeery from the Inspector General’s report is that 1,290 sexual assault and child abuse cases had been assigned to five detectives and 86% of those had not been followed up on with an investigative report.  He goes on to say that 2/3 of those cases (840) were labeled as miscellaneous incidents.  On its face, this appears to be problematic for those five officers.  However, it was not long before the NOPD determined, and announced publicly, that 677 of those 840 cases were sex offender registry checks.  That is, sex crimes detectives were responsible for verifying that the information provided by sex offenders following their convictions was correct.  Those 677 cases were properly classified as miscellaneous incidents.  The NOPD has since created a new category for sex offender registry checks, but they are still not sex crimes investigations requiring follow-up.  The report, along with Mr. Debeery, also ignores the system of 21-x and 21-y signals designed by the police administration in an attempt to pigeon hole cases which required more information before they could be properly classified.  The report also relies on the lack of supplemental reports by officers on investigations as an indication that detectives were being lackadaisical.  This demonstrates a lack of knowledge of police procedure on both Mr. Debeery’s part and the Inspector General’s part.  The investigation into this matter also revealed that some of the case identified by the Inspector General’s report had already reached their conclusion in the criminal justice system — the cases had already been prosecuted and had come to their conclusion.  This would not be possible if they had been ignored as the Inspector General’s report had declared.  There were likely some cases which did not get the attention they deserved.  But, supplemental police reports are only required when evidence was logged in or an arrest was made.  Otherwise, updates were logged in the case management system (CMS).  This is an overly simplistic explanation, but the short version is that manpower, not indifference, was responsible for cases which were not followed up on as thoroughly as the detectives would have liked.

Debeery then goes on to recount the Inspector General’s allegation that a child younger than 3 appeared at a hospital with a sexually transmitted diseased and that Akron Davis ignored this.  The lack of follow-up by Debeery, or possibly his inattention to information learned at a later time, much like the OIG’s inattention to detail, leads to reckless allegations such as this which are damaging to Detective Davis’s reputation.  First of all, this case was not assigned to Detective Davis.  Secondly, and much more importantly, the NOPD had already investigated this case and was well-aware of how this child had contracted a sexually transmitted disease.  There is a case file several inches thick on this particular child.  So, the NOPD already knew the source of the sexually transmitted disease.  How much time should Detective Davis have spent determining the source of the sexually transmitted disease when there were so many other victims the understaffed unit had to try to help?  He then points to two other cases which Detective Davis would not have enough information to defend, explain or take responsibility for.

The next case cited Mr. Debeery is when Sgt. Merrell Merricks allegedly backdated an investigative report requested by the Inspector General.  This clearly shows a lack of understanding of police procedure.  In any event, those charges were not substantiated against Sgt. Merricks.  I do not represent Sgt. Merricks.  The same is true of the allegations about Detective Williams and his report writing.  Finally, Mr. Debeery cites a statement allegedly made by Detective Damita Williams regarding the applicability of a simple rape charges.  There is no context to this statement.  Did you know there are circumstances when simple rape is not an applicable charge?  For example, a husband cannot be accuse of simple rape of his wife.  Context is important.

Mr. Debeery winds up with his opinion that this should have been enough information for me and the public.  Unfortunately, I know more about this investigation than the public.  I certainly know more about this investigation than Mr. Debeery.

The Louisiana Constitution, something I would think Mr. Debeery would favor being applied to everyone as it was intended, establishes due process for civil service employees.  The process that is due requires that civil servants be apprised of the exact violations leading to disciplinary action.  The obviously flawed report by the Inspector General is insufficient to satisfy that requirement.  I should know the details of the circumstances leading to the discipline of my client.  That is the law.

We agree on one thing:  there has been a significant change in the operation of that unit (except that the detectives are still under water with an exorbitant case load).  This is a good thing.  This is also the only thing that really addresses the problems, in general terms, that existed in the structure of the sex crimes unit.  Disciplinary actions taken against good officers are not what led to this improvement.