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.

Advertisements

FOP Family Fund

The Thanksgiving season is upon us which leads to the biggest giving season of the year, Christmas. The FOP hopes that you will consider contributing to the FOP Family Fund.

The New Orleans FOP Family Fund is a function of the Louisiana FOP Foundation, a 501(c)(3) charitable foundation. The FOP Family Fund is mainly funded by donations made by active and retired NOPD employees through payroll/pension deduction.  The FOP Family Fund also accepts  donations from private citizens and businesses wishing to support law enforcement.

WHAT THE FOP FAMILY FUND DOES

The FOP Family Fund assists police officers who are facing severe financial difficulty because of an on-the-job injury or personal tragedy.

It is an unfortunate reality of police work that officers get injured on a regular basis. Injuries occur when officers are in car crashes, when perpetrators resist arrest, or a myriad of other ways. When these work-related injuries result in officers being out of work, their income becomes suddenly dependent on workers compensation law. Workers compensation law entitles an officer to 2/3 of his or her salary for temporary disability benefits. The maximum amount changes each year in September. For the period of September, 2017 through September, 2018, the maximum benefit is $653/wk. That represents approximately 5 hours of an officer’s 8 hour day. The officer’s remaining salary must be made up by using sick leave, if available. Overtime and police detail income are never figured into workers’ compensation, and that portion of salary is simply lost to the officer.

In addition to helping FOP members injured in the line of duty, the FOP Family Fund makes immediate assistance available to the families of NOPD officers killed in the line of duty.

Officers are the victims of natural disasters just like everyone else, from time to time, and when that happens, the FOP Family Fund stands ready to help.  As an example, the FOP Family Fund (through the National FOP Foundation) provided over $1,000,000 in financial assistance to law enforcement officers throughout the State following Hurricanes Katrina and Rita.

In August, 2016, a dangerous tornado touched down in New Orleans and there was destructive flooding in southeast Louisiana. Several of our members suffered significant losses as a result of the tornadoes and flooding.  The FOP Family Fund was able to provide assistance to those members, some of whom had lost their homes.

HOW TO CONTRIBUTE

The FOP Family Fund cannot survive without donations from our members and members of the public. Officers who are interested in donating to the FOP Family Fund, even if it is just $1 per pay period, can do so by visiting the NOPD Payroll office to sign up for payroll deduction. Anyone else who would like to make a tax deductible donation to the FOP Family Fund can mail a check to the FOP Family Fund, P. O. Box 24154, New Orleans, LA 70184.

The FOP Family Fund pays no administrative fees from direct contributions.  Every penny of every donation goes to assist our local law enforcement officers..

 

Our federal tax ID number is 20-3484575.

 

NOPD Sergeants Exam Multiple Choice Study Resources

http://www.fopno.com/news/whats-new/nopd-sergeant-s-exam-prep-multiple-choice-test

http://www.fopno.com/news/whats-new/additional-sergeants-exam-materials

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).

URGENT NOPD EMPLOYEES – Take-Home Vehicles

THE FOLLOWING IS EXTREMELY IMPORTANT FOR NOPD EMPLOYEES:

The New Orleans Police Department, like many other police departments, issues take-home vehicles to some employees.  In fact, the NOPD intends to expand the number of take-home vehicles in use by department employees soon.  Recently, the NOPD ordered the first 100 of 400 new police vehicles which will be issued to FTO’s and platoon personnel.  For those officers who are issued take-home vehicles or may be issued take-home vehicles in the future, it is imperative that these officers understand the City’s take-home vehicle policy or risk personal liability in connection with these vehicles.

CAO Policy Memorandum 5(R) states that the NOPD can assign marked take-home vehicles to officers who live in Orleans Parish and travel to and from work to that location in Orleans Parish.  Otherwise, officers must live in Orleans Parish and have less than a 40-mile commute and be available and regularly called out on a 24-hour basis (think unmarked cars for detectives).  CAO Policy Memo 5(R) further states that officer assigned take-home vehicles can only use these vehicles for official purposes, including details, with one big exception.  Officers assigned take-home cars are allowed to use these vehicles for personal use when they are incidental to driving to or from work.  In other words, an officer can stop at the cleaners on the way home to pick up clean uniforms, assuming the dry cleaners is not in Tangipahoa Parish.

City vehicles should not be used to perform personal business. However, in some instances, take-home vehicles may be used to perform incidental, personal errands outside the course and scope of City business, so long as the errands are conducted to and from work without significant deviation, are brief in nature, and do not detract from the employee’s activities as a public servant.

This leads to the BIG CATCH.  The City is self-insured.  As such, it regulates its own insurance policies in conjunction with state law.  With regard to take-home vehicles, if an officer uses the vehicle for personal use, including driving to and from details, the City WILL NOT PROVIDE INSURANCE COVERAGE OR REPRESENTATION in the event of an accident and a lawsuit.

Such limited personal use, while permitted, does not fall under any coverage provided by the City’s self-insurance program.

CAO Policy Memo 5(R) Sec. XVI, Paragraph F reads as follows:

Insurance: Each Department or Authorized External User, authorized by contract, will require that every employee with a take-home vehicle provide a copy of their current personal automobile insurance policy or their current personal non-owned automobile insurance policy to the Appointing Authority. It shall be the responsibility of each department to ensure that insurance policies or proof of insurance coverage are submitted as they are renewed. Copies shall be provided to the City’s Risk Manager.

 

Vehicle use outside the scope and purpose of employment by the City, whether permissible or not, is not covered by the City’s self-insurance program. [Note that Authorized External Users are not covered by the City’s self-insurance program – See Certificate of Insurance Letter] Every employee with a take- home vehicle must endorse their current Personal Automobile Policy to provide coverage for Non-Owned Autos, including Physical Damage Coverage and provide evidence of the coverage in force. Minimum personal automobile insurance coverages and limits required of employees with take-home autos are as follows:

 

i. Automobile Liability, Bodily Injury and Property Damage Liability – Mandatory State Minimum Financial Responsibility Limits.
ii. Uninsured Motorist – No less than the Minimum Financial Responsibility limits, or your liability limits, whichever is greater.
iii. Comprehensive and Collision – Any deductibles will be the sole responsibility of the employee and will not be borne in any way by the City, for damage due to accidents outside the scope and purpose of employment by the City.
iv. Non-owned coverage including Bodily Injury and Property Damage Liability and Physical Damage (“Comprehensive” and “Collision”).

 

Any employee with a take-home vehicle that does not own a personal vehicle or have a Person Automobile Insurance Policy in force must purchase a Personal Non-Owned Automobile Liability and Physical Damage Coverage (“Comprehensive and Collision”).

 

The Auto Liability limits shall be at least the Mandatory State Minimum Financial Responsibility Limits for bodily injury and property damage. Any deductibles will be the sole responsibility of the employee and will not be borne in any way by the City, for damage due to accidents outside the scope and purpose of employment by the City.

Police Officer Jason Samuel was involved in an automobile accident driving his take-home police car on November 14, 2010.  Officer Samuel was on his way home from a detail when, while sitting at a red light, his foot slipped off the brake and he struck the vehicle in front of him.  Fortunately for Officer Samuel, he was a member of the FOP Legal Defense Plan.  The City Attorney’s office advised Officer Samuel that they would not be representing him in connection with the lawsuit following this accident.  Officer Samuel’s insurance company told him the same thing.  Officer Samuel was ultimately represented by Tony Livaccari, Livaccari Law, through the FOP Legal Defense Plan.  While the FOP Legal Plan provided Officer Samuel an attorney, it did not pay the settlement in the matter.  Ultimately, that would end up costing Officer Samuel more than $5,000.00.

Police Officer Robert Ponson is in the same boat.  Officer Ponson was involved in an accident on the way home from a detail and was involved in an accident in his assigned take-home vehicle.  Officer Ponson was also advised that the City Attorney would not provide him with representation since he was on the way home from a detail.  His insurance company indicated the City should be representing him.  Again, the FOP Legal Plan will be providing representation for Officer Ponson.

It is imperative that officers who are assigned a take-home vehicle call their insurance agents or insurance companies and arrange for non-owned vehicle coverage.  Officers should make the situation perfectly clear.  If the insurance company does not write that coverage, then the officer needs to either get an additional non-owned vehicle policy, change insurance companies, or give the take-home vehicle back.

Officers have to understand that their personal assets are exposed should they get in an accident if they are not properly insured.  It is simply not worth the risk to operate a take-home vehicle if the security of the officer’s family is compromised.  Soon, the NOPD will be offering 400 take-home vehicles to officers who might not otherwise have the opportunity to be assigned a vehicle.  The temptation will be strong.  Leaving the car at the station is not an option if the car will be used to drive to and from details.  The bottom line is get the insurance or give the car back and make sure you belong to the FOP and the FOP Legal Defense Plan.

U.S. Fifth Circuit Case Alert

lafop-nep-logo-trans

Officer should be aware of the below case.  The Fifth Circuit held that officers who are aware of a constitutional violation can be liable under bystander liability if they fail to intervene.  In such a case, because the law is clearly established, an officer will be denied qualified immunity.  It is additionally a violation of many department policies (including NOPD) to fail to intervene in an unlawful use of force.

Fifth Circuit

Hamilton v. Kindred, 2017 U.S. App. LEXIS 623 (5th Cir. Tex. Jan. 12, 2017)

Brandy Hamilton and Alexandria Randle were pulled over by Officer Turner for speeding. After Officer Turner smelled marijuana, he ordered the women to exit their vehicle. Hamilton was wearing a bikini bathing suit, and Randle was similarly dressed. Officer Turner handcuffed the women and searched their vehicle. During this time, Officers Ron Kinard and Amanda Bui arrived. After Officer Turner searched the vehicle, he asked Officer Bui to search Hamilton and Randle. Officer Bui conducted a body cavity search on both women while on the side of the road. Hamilton and Randle subsequently filed a lawsuit against the three officers under 42 U.S.C. §1983 claiming the invasive cavity searches violated their Fourth Amendment rights to be free from unreasonable searches and seizures. Officers Turner and Bui reached settlement agreements with Hamilton and Randle. Officer Kindred argued that Hamilton and Randle failed to adequately allege that an excessive use of force occurred. In addition, Officer Kindred argued that he could not be liable under 42 U.S.C. § 1983 as a bystander for not intervening to prevent the body cavity searches; therefore, he was entitled to qualified immunity.

The district court denied Officer Kindred qualified immunity. The court found that Hamilton and Randle had adequately alleged a claim of excessive force. The court also held it was clearly established at the time of the incident that bystander liability applied. In addition, the court concluded that there was a serious dispute as to material facts in the case regarding the objective reasonableness of Officer Kindred’s actions. Officer Kindred appealed to the Fifth Circuit Court of Appeals.

First, to bring a § 1983 excessive force claim under the Fourth Amendment, a plaintiff must show that she was seized. Here, the court of appeals found that Hamilton and Randle clearly alleged in their complaint that they were seized during the traffic stop when they were handcuffed and placed in the officers’ patrol cars. In addition, the women alleged that they were detained for over thirty minutes and subjected to invasive body cavity searches in violation of the Fourth Amendment.

Second, the court held that Officer Bui’s insertion of her fingers into the plaintiffs’ body cavities constituted a use of force, which the plaintiffs allege occurred during their seizure.

Third, at the time of the incident, it was clearly established that it was not reasonable to conduct a roadside body cavity search, unless there were exigent circumstances that required the search to be conducted on the roadside rather than at a medical facility. Consequently, the court found that Hamilton and Randle alleged facts showing that they were subjected to an unreasonable use of force “excessive to its need.”

The court further held, at the time of the incident, it was clearly established in the Fifth Circuit that an officer could be liable as a bystander in a case involving excessive force if he knew a constitutional violation was taking place and he had a reasonable opportunity to prevent the harm.

However, because there were serious disputes as to material facts regarding Officer Kindred’s potential liability as a bystander, the court of appeals lacked jurisdiction to hear this portion of the case and dismissed Officer Kindred’s appeal.

For the court’s opinion: http://cases.justia.com/federal/appellate-courts/ca5/16-40611/16-40611-2017-01-12.pdf?ts=1484267434
*****
https://apps.appmachine.com/nopdhandbook/promote/js

Unclassified Positions and Reform in the #NOPD

IMG_0153

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.

NOPD Disciplinary Regs

IMG_0153

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.