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.
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.
The short answer to this question is ALL of them. There is no investigation too simple or straightforward. Quite often I hear “I didn’t call you because it was just a missing court case” or “I didn’t call you because it was just a BWC case.” Unfortunately, my response is commonly “Well, one of the rules of the Salary Reimbursement Option is that you have to be represented by one of the FOP attorneys in order to qualify for the SRO.” What is an SRO you ask?
The FOP Legal Defense Plan includes what is known as the Salary Reimbursement Option (“SRO”). The SRO allows officers to make up for salary lost as a result of an unpaid suspension. In New Orleans, the SRO allows officers to recover up to 5 days of suspension at $150 per day. In other words, when you get a 1-day suspension for missing court, the FOP will pay you $150 if you choose not to file a Civil Service appeal.
Why not file a Civil Service appeal? Well, that is the benefit of having one of the FOP attorneys on the case from the beginning. Your FOP attorneys have been handling disciplinary actions for years. By the end of the investigation, your FOP attorney should be able to give you a pretty good idea of your chances of success on appeal. So, after a disciplinary hearing, you and your FOP attorney can discuss whether you are better off filing an appeal with Civil Service or submitting the disciplinary letter for the Salary Reimbursement Option.
I deal with disciplinary investigations every day. Most officers deal with disciplinary investigations 2 or 3 times in a career. As such, one cannot expect officers to be thoroughly familiar with the ins and outs of being an accused officer in a disciplinary investigation. What is the legal burden? What evidence is allowed? When does the 60-day rule apply? When does the 60 days begin and end? Is the disciplinary hearing considered part of the 60 days? How long after a disciplinary hearing can an officer expect to receive the disciplinary letter or suspension days? When can I file a Civil Service appeal? What is this email I received about a hearing about an extension that cannot be continued?
The answers to some of these questions change based on rulings of appellate courts in Louisiana. The answers to other questions changes based on changes in an administration. The point is that even if an officer is tasked with completing disciplinary investigations, there are still aspects of disciplinary investigations which are unknown.
As a member of the FOP Legal Defense Plan, an officer is entitled to representation at no cost to the officer. We do not judge whether or not an officer deserves legal defense. We do not judge the accused officer. If you are a member of the FOP Legal Defense Plan and you become the accused officer or a witness officer in an internal disciplinary investigation, your legal representation is guaranteed. We are there to protect your rights. Calling your FOP attorney can also make you eligible for the FOP’s salary reimbursement option when you don’t have a chance on appeal. Call, text, or email today.
2015 has been a banner year for both the FOP Legal Defense Plan and the firm of Livaccari Villarrubia Lemmon. Hopefully, next year Livaccari Villarrubia Lemmon LLC will transition to Livaccari Law. The staff, office location, phone number, etc., will remain the same – only the name will change.
This firm began in the early 80’s as Brough and Livaccari, made up of William R. Brough and Anthony J. LIvaccari, Jr.. Brough and Livaccari was mainly an insurance defense firm. In the 90’s, there were a number of notable insurance company failures in Louisiana, such as Champion Insurance. The Louisiana Insurance Guaranty Association (LIGA) was responsible for picking up where these failed companies left off. Brough and Livaccari began representing LIGA. In addition, they began to handle more plaintiff work, specifically automobile accidents and other personal injury cases. Since then, Todd Villarrubia joined Tony Livaccari. Todd has subsequently left to run his own firm, the Wealth Planning Law Group, which is next door to my office. My sister, Jenifer Lemmon, graduated law school and subsequently began working in the 5th Circuit Court of Appeal. So, Livaccari Villarrubia Lemmon no longer contains a Villarrubia or a Lemmon. I joined the firm on part-time basis when I graduated from law school and was admitted to the bar, and on a full-time basis when I left the NOPD in 2008.
Today, the firm is composed of myself, Donovan Livaccari, and my father, Tony Livaccari. My work is primarily composed of representing law enforcement officers through the FOP Legal Defense Plan. My father, Tony Livaccari, concentrates on personal injury litigation cases — automobile accidents, motorcycle accidents, etc. as well as other general practice cases.
During 2015, my father represented a number of police officers with automobile accidents and other filled in for me once or twice. Automobile accidents, motorcycle accidents, scooter accidents, and other injuries are common for law enforcement officers. When you drive a car 8 hours a day, it is inevitable that accidents happen. Police officers who are involved in automobile accidents should consult with an attorney, particularly when the other party is at fault. When consulting with an attorney post-accident, it is extraordinarily helpful to have an attorney who is familiar with law enforcement. For example, when recovering lost wages, it is vital for an attorney to understand how police details work or the difference between a workers compensation injury and an injured on duty injury. Here, at Livaccari Law, we can provide that type of knowledge and familiarity to law enforcement officers in addition to the 30+ years of experience handling these types of cases in general. There is no harm in calling. Involved in an accident? Call Tony at 504-621-2636 or me at 504-905-8280. The office number is 504-488-3702.
With regard to the FOP Legal Defense Plan, I represented 427 individual police officer clients in one capacity or another. For those 427 police officer clients, the following services were provided:
DI-1 Statements – 253
Disciplinary Hearings – 123
Rule IX Hearings – 24
Accident Review Boards – 10
Civil Service Appeals filed – 26
Civil Service denial of promotion appeals – 5
Civil Service subpoenas – 34
Civil Service hearings – 20
Civil Service extension hearings – 77
Notary services – 63
Officer Involved Shootings – 8
Media interviews – 82
In addition to these regular, repetitive services, I attended numerous City Council meetings, City Council committee hearings, and regular Civil Service meetings. I represented several officers with regard to reclassifying workers compensation injuries as injured on duty injuries. In addition, I drafted a rule amendment which was adopted by the Civil Service Commission to include injuries sustained while engaged in traffic enforcement or the investigation of traffic incidents as injured on duty incidents (Rule VIII, Sec. 2.9(a)).
The FOP was also active in the 2015 Louisiana legislative session as usual. We made several trips to Baton Rouge in furtherance of the FOP’s legislative agenda. In addition, the FOP is the only rank and file law enforcement group to be included in the Louisiana Body Worn Camera Task Force. Myself, Jake Lundy, and Jim Gallagher attended the Body Worn Camera Task Force meeting in Baton Rouge in support of Darrell Basco, Louisiana FOP President, who has a seat on the task force.
It has been a busy year and I look forward to continuing to be there for FOP members when they need someone the most in 2016. Having been a law enforcement officer, I am grateful for the opportunity to represent FOP members.
For 2016, I plan on bringing the FOP’s Critical Incident Response Team online. When officers are involved in critical incidents, such as officer involved shootings, or in-custody deaths, it is crucial for the FOP to be able to provide prompt, quality legal services to its members. But it is much more than that.
Being involved in a critical incident can be one of the most traumatic experiences in the life of a law enforcement officer. Officers are subjected to the type of scrutiny we have never seen before. At the scene of an officer involved shooting, representatives of the Office of the Independent Police Monitor, federal monitors, FIT investigators, etc., etc., are present. The media is usually there and very interested in the incident and people involved. Questions are flying and recordings are being made.
In short, it is important for an officer to be able to have someone by his or her side who is unquestionably looking out for their best interest. The FOP Critical Incident Response Team will be able to provide that.
First, it is of the utmost importance that someone notify me as soon as possible. If I do not know about a critical incident until I read about it in the news the next day, it is impossible to respond to the scene. I need someone to call me, assuming the officer or officers involved wants someone notified. Once I receive the call, I will get as much preliminary information as I can get, such as the number and identities of officers involved.
So, for illustrative purposes, let’s assume that there is an incident involving two officers involved in an officer involved shooting which led to the death of a suspect. I need to know the foregoing. I also need to know if the officer has a preference with regard to a lawyer to be notified. I have a list of attorneys who have agreed to answer the phone in the middle of the night, get dressed, and respond to a critical incident scene if possible. Right now, that list includes: Bruce Whittaker, Ed Doskey, George Hesni, Kevin Boshea, Roger Jordan, Tanya Faia, Townsend Myers, and William Dunn. All of these attorneys are experienced criminal attorneys. So, once I learned there were two officers involved, I would go down the list until I have two attorneys in addition to myself who are able to respond to the scene.
I, along with the two criminal attorneys will respond to the critical incident. I will attend to any administrative matters and make sure that the criminal attorneys file the proper claim forms with the FOP Legal Defense Plan. Hopefully, that will clear up the criminal attorneys so that they can attend to the legal needs of the officer involved without having to be concerned about some of the potentially distracting administrative issues. These criminal attorneys will be available to represent the officer throughout any criminal investigation. After that, I will be available for administrative proceedings or the officer may be able to continue with the criminal attorney if they wish to do so.
I am also planning on securing a use of force expert to respond to the scenes of critical incidents to advise myself and the criminal attorneys with regard to any use of force issues identified on the scene. I am excited about the benefit this will provide to officers and I know, from my own experience, how beneficial it is to the officer to have someone by their side during these types of events.
Please feel free to call me or Tony with any legal needs you may have. We appreciate your business and promise to deliver the type of service that you deserve whether it be with a DI-1, a Civil Service appeal, a 4th Circuit appeal, an automobile accident, a will, a power of attorney, or a succession.
UPDATE: This article has been revised to redact individuals’ names. While I received an overwhelming number of supportive reactions to this article, I am concerned about those who thought it was unfair to one particular individual. It was never my intent to belittle anyone or throw anyone under the bus. It is the process that is the issue, not the individuals involved. Therefore, I have redacted all names except for the list of promotions. The names are unimportant. I congratulate those who were promoted.
On September 23, 2015, the New Orleans Police Department announced 8 promotions. Typically, promotions are something to be celebrated and a boost to morale. Unfortunately, this cannot be the situation. The round of promotions before this was not much better. Unfortunately, these promotions have done little more than make morale in the NOPD just a little bit worse.
On September 23, 2015, the following promotions were made:
Lt. Derek Frick to Police Commander
Lt. Bryan Lampard to Police Commander
Sgt. Daryl Watson, I to Police Lieutenant
Sgt. Sabrina Richardson to Police Lieutenant
Sgt. Duralph Hayes to Police Lieutenant
Sgt. Kenrick Allen to Police Lieutenant
Police Officer Charles Love to Police Sergeant
Police Officer Stephanie Taillon to Police Sergeant
Sgt. Daryl Watson was promoted to Police Lieutenant. Lt. Watson was 61st on the list of 65 Police Sergeants who passed the promotional examination That means that 60 out of 65 people performed better on the promotional examination. This is not a multiple choice test. This is an exam specifically created to test a candidate’s proficiency as a Police Lieutenant with the New Orleans Police Department. Not only was Lt. Watson 61st on the list, but candidate numbers 3, 4, 7, 8, 11, 13, 16, 18, 19, 22, 24, 25, 25 (tie), 28, 29, 30, 31, 32, 33, 34, 37, 39, 40, 41, 43, 44, 45, 47, 48, 49, 49, 49 (tie), 52, 55, 55 (tie), 57, 58, 59, and 60 remain unpromoted.
Candidates go into promotional exams thinking that they know what it takes to get promoted. A candidate who scores well on the test and doesn’t have a pending disciplinary investigation can count on being promoted once the NOPD gets to that candidate’s place on the list. It simply doesn’t work that way any longer.
What does it take to get promoted? Some kind of special qualifications, experience, or training? Well, Lt. Daryl Watson has been assigned to the Criminal Section of the Public Integrity Bureau for a long time. Certainly that kind of experience must be hard to find. It might be, but Sgt. Kevin Stamp, number 30 on the list, shares the same assignment and has been in that assignment for quite a while. So, I guess that is not it. Is it education? Sgt. Eric Berger, number 22 on the list, graduated from law school. I don’t think Lt. Watson has a law degree, so that is not it. What is it?
Here is what the Louisiana Constitution tells us:
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.
La. Const. art. X, § 7
The Civil Service system is designed to ensure that promotions and appointments are made based on objective criteria that are no secret to anyone. The Constitution clearly envisions those objective criteria being accounted for in the examination process.
The Louisiana Constitution goes on to explain the process for picking promotional candidates with a little flexibility built in:
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.
La. Const. art. X, § 7
This is where the problem comes in. In spite of the obvious logical flaws, the Landrieu administration has fought to interpret this as saying that the number to be certified could be 3 or 103. Once they had the right people appointed to the Civil Service Commission, the rules were changed basically making everyone who passed the test equal. Whatever the competitive nature of the testing is, if there is any beyond passing the test, is a mystery.
What I can say for certain is that the men and women of the New Orleans Police Department believe that the competitive criteria is friendship with the right person.
What I can also say for certain is that whether or not that is true is irrelevant because perception is reality.
The Civil Service system was developed to prevent that perception. The Civil Service system was designed to prevent political interference and “the spoils system.” The Civil Service system was designed so that an objective set of criteria could be applied to candidates for promotion in the public employ and employees could count on getting promoted, even if they were not friends with the boss.
These revisions to the Civil Service rules made as part of Mayor Landrieu’s Great Place to Work initiative need to be repealed. The Fraternal Order of Police has a lawsuit filed in Civil District Court asking a Judge to declare the new rules unconstitutional. We would all be better off if the Civil Service Commission repealed these changes on their own accord or if the NOPD sought to have these rule changes repealed. Of course, that won’t happen. The NOPD could have continued to apply the old rules to promotions. Had the NOPD continued using the old rules in spite of the rule changes, perhaps officers wouldn’t feel like their chances of getting promoted were impacted by potentially anything other than test score. Superintendent Serpas sought to kill the last promotional register for Police Lieutenant after the first half of the list was promoted. It was his stated belief that he would have rathered give a new test to generate a new list in order to avoid promoting from the bottom half of the list (the list being comprised of all who have passed the exam).
At this point in the history of the NOPD and the City of New Orleans, police manpower is at critical levels. Manpower has been at critical levels for several years now and will take years to correct. As long as the men and women who make up the NOPD believe that they are not being treated fairly or that promotions aren’t being administered fairly, it will be hard to convince officers that they should be trying to encourage potential law enforcement professionals that this is the place to start a career.
It was not my intention to pick on Daryl Watson for any reason. I am only trying to illustrate a point. Nothing written here is intended to infer in any way that Daryl Watson is not a capable police officer or that he will not make a capable Police Lieutenant. Indeed, I have spoken with others who had been promoted from the bottom of the list who have indicated that they too wished the NOPD had used the old rules to promote people so that people would not be as quick to question their potential as a supervisor. Hopefully, he will understand. I used 62 as my example last time.
This needs to be fixed or morale will never improve.
If you are injured in the course and scope of your employment, you are entitled to receive workers compensation benefits. In return for being entitled to these benefits, an injured worker is barred from suing his or her employer for a work related injury in most cases. The benefits include such things as weekly wages, medical bills, and mileage to and from medical appointments. Every course and scope injury is a workers’ compensation injury regardless of the circumstances.
The idea of an Injured on Duty (IOD) injury exists in the Civil Service Commission Rules for the City of New Orleans. It may or may not exist in the rules of other civil service boards or commissions.
The culmination of the disciplinary process within the New Orleans Police Department consists of a phone call one day, when you least expect it, instructing you to appear at the Public Integrity Bureau to sign for a disciplinary letter. The disciplinary letter is a letter on departmental letterhead, signed by the Superintendent, which lays out the alleged cause justifying the discipline, the rules allegedly violated, and the imposition of the final discipline (suspension, letter of reprimand, etc.).
While this is the end of the line for the NOPD’s disciplinary process, it is not the end of the line for classified employees or FOP members. You have a number of options available to you at this point.
Click below to read recent decisions from the Civil Service Commission for the City of New Orleans on FOP cases: