On March 3, 2023, the members of the New Orleans Civil Service Commission had their monthly meeting. On March 11, 2022, the Civil Service Commission approved some lump sum payments to police personnel in order to improve Retention and Recruitment. This also applied to the incentives for NOFD and NOEMS.
In order to be certain the payments were legal, the Civil Service Commission sought an opinion from the Attorney General. The Attorney General ruled favorably on the payments, but, generally, decisions based on an Attorney General’s Opinion delay the effectiveness of the item until the date of the positive ruling, which was received in July 2023.
In this case, the Fraternal Order of Police was very concerned that if the payments were pushed back to July 23, 2023, it would seriously impact the employees’ confidence in the administration’s reliability as it relates to promises it makes. In its Opinion, the Attorney General stated that the Civil Service Commission could revise its motion to March 11, 2022, so that the City Council could approve the change to March 11, 2022, and the payments could be made by March 11, 2023.
The Civil Service Commission received a letter from Councilman Joe Giuruso requesting the Civiil Service Commission consider a revision of the motion to change the effective date to March 11, 2022, so the Council could approve the change and the checks can be cut on March 11, 2023.
The Civil Service Commission unanimously voted to add the measure to the agenda and then unanimously voted to make the revision. The Council will consider the revision at its earliest opportunity and we will advise you when the checks will be issued.
The Fraternal Order of Police would like to to thank the New Orleans Civil Service Commission, Councilman Joe Giurusso, the New Orleans City Council. Mayor LaToya Cantrell, CAO Gilbert Montaño, and Superintendent Michelle Woodfork for making this a priority.
Earlier today, CAO Gilbert Montaño published CAO Policy Memo #148. That policy addressed the 10% pay increase for all city departments during Mardi Gras 2023. We received quite a few phone calls asking about the status of the $26/hr. increase for police personnel that had been mentioned previously.
Last weekend, NOPD Superintendent Michelle Woodfork put out a message saying that she and her team were going to figure out a way to increase the pay for all police personnel during this Mardi Gras. The limitation they were working with was that officers had to be working on contributing to Mardi Gras to qualify for the $26/hr. special rate of pay. This evening, Chief Woodfork called to tell me that they had come up with a plan and it would include every officer.
Chief Woodfork said that all NOPD officers will receive an additional $26/hr for the 2023 Mardi Gras season. The extra pay will start 3 hours before the first parade rolls and stop 3 hours after the last parade is over for any given day.
The FOP would like to thank Chief Woodfork for working this out so everyone can benefit from the special Mardi Gras rate of pay. When you see the Chief walking the parade route, make sure you let her know how much you appreciate it. I also want to thank FOP Labor Chairman Sgt. Willie Jenkins for all of his tireless work representing FOP members. When you see Willie on the parade route, make sure you have a list of things for the Labor Committee to work on to give him.
Have a safe Mardi Gras and don’t forget to have fun. The FOP would like to again thank Superintendent Woodfork and her leadership staff. We would also be remiss if we didn’t thank Personnel Director Amy Trepagnier, CAO Gilbert Montaño, and Mayor Cantrell. All of these City Leaders were more than willing to work with the FOP to benefit all police personnel.
DO NOT DRINK AND DRIVE!!!! WE WILL BE LOOKING FOR YOU IF YOU DO!!
Today, a Press Release was issued by the Mayor’s Office that appeared to say that some NOPD officers would be paid one thing and another group of NOPD officers would be paid more during Mardi Gras. The Press Release suggested that the officers who were not being paid as much as their peers could work paid details (extra work after their regular 12-hour shifts) to make up the difference. This article appeared on NOLA.COM seemed to confirm that. The FOP said that was unacceptable.
The message to FOP members is that we have not given up yet. Once plans are solidly in place, I will be happy to share details with our members. Until then, we continue to work with the Mayor’s Office, the CAO’s Office, the Director of Personnel, the Civil Service Commission, Superintendent Woodfork, the NOPJF, and others to make sure that Mardi Gras pay is equitable.
On behalf of Sgt. Willie Jenkins and the FOP Labor Committee and myself, Claude Schlesinger, and the Legal Committee let’s work on quelling the rumors that are making the rounds. I will post an update once I can share more.
I know many of you have seen information regarding Mardi Gras compensation coverage due to our staffing shortage.
While I welcome any assistance from outside law enforcement to ensure we have a safe carnival season, my position has been and will always remain all officers should receive equal compensation across the board regardless of their respective duties.
As you are aware Mardi Gras coverage is a collective effort throughout the department which require officers who would normally work their regular police duties to engage in parade coverage which ultimately results in other officers in the districts working additional hours and days to supplement the loss for those assigned to the parade route.
Furthermore, we are bound by our oath of office to protect the entire city despite special events coverage; therefore, all officers should receive equal compensation.
In the coming days, we will finalize all aspects of the 2023 Mardi Gras plan including the compensation levels. I look forward to working with all stakeholders to ensure equity in compensation for all officers.
I will provide an update to the rank and file of NOPD with all information once completed.
I appreciate your hard work in preparing for this upcoming Mardi Gras season.
Thank you for your continued dedication to our community.
On behalf of the Crescent City Lodge of the Fraternal Order of Police, I wanted to thank Sgt. Jerusha Carroll and the 8th District DIU for coming up with a plan to allow DIU units across the City to supplement the platoons without using transfers. Although these moves would have been temporary, transfer denotes some degree of permanency. Sgt. Carroll and her colleagues thought there was a better way and developed a plan which they sent to me. I sent the plan to Sgt. Willie Jenkins, who is co-chairman of the FOP’s Labor Committee with P/O Jeremy Wilcox. Sgt. Jenkins consulted with others and agreed the plan was good. The plan was put in order and hand-delivered to the Superintendent’s Chief of Staff on September 16, 2022.
The plan submitted by Sgt. Jenkins can be found by clicking here.
On September 22, 2022, Sgt. Chris Landry (Ret.), Sgt. Drew Williams, Det. Jeremy Wilcox, Claude Schlesinger, Sgt. Willie Jenkins and I met with New Orleans CAO Gilbert Montaño about a number of issues. Since several of us had been involved in discussions with active officers about the anticipated transfer of detectives, we made that the first item on the agenda. CAO Montaño expressed that he thought any moves involving detectives would be temporary and that nobody would lose any pay as a result of these temporary moves. We explained that temporary or not, the special rate of pay for being in a detective assignment would not travel with the officer to a non-detective position.
It can pay off to get involved or share your ideas. In this instance, Sgt. Carroll and the 8th District DIU shared their plans to supplement the platoons without resorting to transfers. We made sure the Superintendent’s Office was aware of that plan.
If the story ended there, it would already have a happy ending. If the plan is implemented by the Superintendent, then it would be an even happier ending. So, thanks to Sgt. Carroll and her Detectives. If we continue to work together, maybe we can change the old saying 1 step forward and 2 steps back to just 2 steps forward. Thanks to Mr. Montaño as well, we can tell when someone is really listening.
I was cutting my grass, listening to the First Thursday podcast. The First Thursday podcast is hosted by Will Aitchison. Once a month, Will talks about legal issues from around the country that impact law enforcement. Will runs the Labor Relations Information System which tracks issues related to collective bargaining and discipline for law enforcement and fire personnel. Will is widely respected and I like to listen to his podcast every month. Will also wrote The Rights of Law Enforcement Officers, which is a fantastic book on many of the issues we attorneys deal with regularly here in New Orleans. I have had the opportunity to meet Will and hear him speak. I am comfortable saying that Will knows what he is talking about.
At about 45:00 into the July First Thursday podcast, Will started talking about a case involving Sgt. Willie Jenkins. I knew that case at once. It was one that Ted and Claude won. The win got Willie 5 days of pay back. We really win more than we should, statistically speaking.
First, and foremost, if you are a commissioned law enforcement officer and you do not belong to the Fraternal Order of Police and the FOP’s Legal Defense Plan, you should arrange to join at your earliest opportunity. The FOP’s Legal Defense Plan is, by far, the best legal plan available for police officers. A description of the FOP’s Legal Defense Plan can be found by clicking here.
The most important thing to do when you learn that you are the subject of an investigation by your employer is to call your trusted FOP attorney. If you do not have an FOP attorney, you can call me (Donovan Livaccari) and I will try to help get you the best representative considering your circumstances.. There is also a list of approved counsel at http://www.fop.net. Administrative cases for the New Orleans Police Department are a little different. You should definitely call me for NOPD administrative investigations.
Should you call if it is a straight forward case that was recorded on BWC? Yes.
Should you call if you are just a witness? Yes.
Should you call if you know for sure you will be sustained? Absolutely yes.
Should you call if you were told there was no need to call? Certainly.
What if you were told the case would be exonerated or unfounded? Yep.
Officers might only deal with their agency’s disciplinary system once in their careers. It is not a part of agency operations that officers are particularly familiar with. Even officers who may consider themselves veterans of the disciplinary system are usually not thoroughly familiar with the procedures applicable to internal investigations.
The FOP also has a benefit available to its members called the Salary Reimbursement Option (SRO). The SRO allows an officer who is not going to appeal a suspension to recoup some, if not all, of what was lost due to the suspension. For example, let’s suppose you got a 1-day suspension for missing court. After discussing the pros and cons of appealing this suspension with your FOP attorney, you decide that an appeal would be a waste of time — you know you were properly subpoenaed on a case you worked on, you missed court, and there are no Police Officer Bill of Rights issues. You and your attorney conclude that the chances of success on appeal are slim, at best. The Salary Reimbursement Option will reimburse you for the 1 day of salary you lost because of the suspension. The SRO rules require that the FOP member be represented by one of the FOP attorneys during the investigation.
The FOP’s Legal Defense Plan allows its members to hire a professional to assist them with a stressful situation that they are probably not completely familiar with. In fact, there is as much misinformation going around regarding the disciplinary process as there is good information, if not more. I have been doing this work as a full time job since I left NOPD in 2008. That 14 years of experience as a full time job. I also worked on disciplinary cases at NOPD for the 4 years between my graduation from law school and my retirement from NOPD.
The fact is that as an FOP member, you are very likely to belong to the FOP’s Legal Defense Plan. Throughout the State of Louisiana, the FOP’s Legal Defense Plan members can sleep a little better knowing that representation is just a phone call away. I haven’t mentioned criminal investigations or civil actions yet, but representation in those matters is also just a phone call away. If you have any questions, feel free to give me a call.
Sometimes witness officers become accused officers. Sometimes cases that are clearly unfounded become sustained for a different reason. These are all good reasons to pick up the phone and call. You don’t have to worry about how busy I am or whether the investigation is worthy of representation. As a member of FOP’s Legal Defense Plan, you are entitled to representation and I am happy to provide it. In addition, calling for representation keeps your options available for things like SRO or appeal. Make the call. If you don’t have my number, ask in roll call. It won’t be hard to find. Just make the call.
I know many of my friends who work for the New Orleans Police Department have questions about the newly announced CAO Policy Memorandum No. 146 that was distributed at the end of last week. I have questions also and I will share the answers to those questions as soon as I can.
CAO Policy Memorandum No. 146 essentially says effective August 30, 2021, no city employee will be allowed to report to a city-owned worksite unless one of the following two conditions is met:
the employee is fully vaccinated. The policy says an employee is fully vaccinated once 14 days has passed after receiving the second of a two-shot vaccine or the one-shot vaccine. Or
the employee has taken two negative tests in the week. Tests must be four days apart. Tests must either be taken in front of a supervisor or the results are time stamped with the employee’s name. Antigen or PCR tests are acceptable.
A worksite is defined as a place where an employee is performing work on behalf of the city and can reasonably be expected to come within 6 feet of other city employees or members of the public.
That is the easy part. There are other questions that prove to be a bit more difficult. How will this be enforced? What will happen if an employee is sent home? How will the employee be carried in payroll? How does an employee register a religious objection? What if an employee has a medical objection? I am working on getting answers to those questions and I will be happy to share them with you all as soon as I can.
This is going to be a short entry that I hope to be able to follow up on soon.
2021 Sergeants Promotions
Click here to see the 2021 NOPD Police Sergeant promotion order list as re-ordered by the Promotion Committee’s application of CAO Policy Memo 143(R). This list is clearly a public record and I obtained the list by making a public records request. The list shows the score each individual received on each of four categories. Unfortunately, CAO Policy Memo 143(R) only talks about three categories to be rated. CAO Policy Memo 143(R) does not mention an Interview score. The list also shows each officer’s score given by the Promotion Committee (Overall) and each officer’s final score after application of CAO Policy Memo 143(R). Finally, the list shows the officer’s new rank, how many positions that person moved up or down, and any notes applicable to that individual.
Candidates who position improved have negative numbers in the category “How many places did they move?” Candidates who position decreased have a positive number in that category. The biggest move up the list was 27 positions. The biggest move down the list was 30 positions. Candidates whose position on the list improved moved up 9 spots on average. Candidates whose position on the list moved down did so by 11.6 positions.
The Louisiana Constitution addresses how appointments to classified positions are made. I discussed what the Constitution says here. My opinion is that legal action is a possibility. Mayor Landrieu’s administration declared the Civil Service test “falsely objective,” but the new categories being used to analyze candidates for promotion are more falsely objective than the test could ever be. For example, supervisors who completed performance evaluations for candidates brought their own preconceptions, biases, and personal feelings into the mix. Some candidates only worked for the supervisor that completed the candidate’s performance evaluation for a short period of time. For a candidate’s disciplinary history, if a candidate had 1 or 2 sustained complaints at a level A or B, then that candidate got a “Medium” score. If a candidate had a sustained C violation, then the candidate got a “Low” score. They looked at each officer’s disciplinary history for the 5 years preceding the date of the Promotion Committee’s review. The violation Instructions from an Authoritative Source can be a level A, B, or C violation. The date of the Promotion Committee’s review could also be important. People miss deadlines by a day or two every time there is a deadline to miss. The rubric the Promotion Committee used can be found here.
The Fraternal Order of Police Crescent City Lodge #2 challenged the constitutionality of the Great Place to Work Initiative rules on promotions when they were first adopted. Unfortunately, the court found that the rules were not unconstitutional on their face. In other words, the rules could be applied in a constitutional manner. I am expecting to receive additional information that should shed more light on the issue at hand. In the meantime, I encourage all candidates who did not get the score they thought they should have gotten to ask for the grounds of the score. Go to PIB and request a copy of short forms. Call me and we can discuss options.
Vaccinations
While promotions to sergeant loomed, I got more calls about this article where Mayor Cantrell announced that all city employees and contractors had to be vaccinated than anything else on Friday, July 30, 2021. The questions have been one of the following two questions: (1) Can they make me get the vaccination? or (2) Can I get a religious exception?
Can they make me get the vaccination?
Can they hold an employee down and stick a needle in his or her arm? No. Without consent, that would be a battery. The real question is “Can they coerce me into getting vaccination?” The answer? Maybe. Yes.
There has been no written policy on mandatory vaccinations promulgated that I am aware of. I imagine there will be a policy forthcoming. It will be imperative to see the policy in order to be able to analyze the requirements. For example, if the policy states that unvaccinated employees will have to wear a mask, engage in social distancing, and get tested for COVID-19 at regular intervals, that would likely be reasonable. If unvaccinated city employees are terminated from permanent, classified positions, that would be much more severe. My guess is that might be too severe. Again, without a policy to examine, it is difficult to analyze.
The courts have allowed mandatory vaccinations in the past. Generally, the analysis will probably be the degree of intrusion versus the legitimate public interest. As of now, the courts in other jurisdictions have been finding in favor of mandatory vaccinations.
The vaccinations are against my religious beliefs. Can they make me get the vaccination?
Again, there is not a whole lot of precedent in this area. However, freedom of religion is one of our country’s most closely held fundamental beliefs. It is first in the Bill of Rights found in the Amendments to the U.S. Constitution. There can be no law restricting the free exercise of religion.
Religious exceptions to vaccination requirements for public employees will almost certainly exist. However, these exceptions will probably be granted conservatively. My guess is that the reason given will have to be reasonable in light of the religion espoused by the employee. I doubt that an employee will be able to start his or her own religion that does not believe in vaccines.
It is really impossible to analyze mandatory vaccinations for public employees in New Orleans right now. Once policies are provided in writing, it will be more possible to provide a useful analysis. Until then, we have limited precedent in other jurisdictions which appear to trend toward allowing mandatory vaccinations.
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