Recently, Mayor Cantrell declared a state of emergency due to Hurricane Barry in the Gulf of Mexico. The Fraternal Order of Police (We) received numerous phone calls from officers concerned that the city would pay them correctly. I spoke with the police administration several times and Asst. Superintendent Noel assured me that Superintendent Ferguson was committed to making sure NOPD paid everyone correctly. An email to NOPDAll indicating that there could be a delay in when NOPD would be making payments for the declared state of emergency got officers worried again.
The FOP Legal Defense Plan provides legal representation to its members for any criminal or civil action resulting from the performance of your duty as a law enforcement officer. The FOP Legal Plan also provides representation for any administrative investigation. Administrative investigations include disciplinary investigations, Accident Review Board cases, or Rule IX Hearings. In addition, the administrative coverage includes appeals to the Civil Service Commission, the Fourth Circuit Court of Appeal, or the Louisiana Supreme Court, if needed.
The NOPD keeps hiring new officers and running academies on a regular basis. This means that there are always new officers coming out of the Academy who have not had any experience with the NOPD’s disciplinary system. I usually have the opportunity to introduce myself to soon-to-be Academy graduates at the Academy. I have a limited amount of time to introduce myself and explain a few things about the Legal Plan. This is my opportunity to explain a little more in depth. As always, you are welcome to call me if you have any questions.
The Consent Decree entered into by the City of New Orleans and the Department of Justice contains 13 pages that apply to disciplinary investigations. The one thing that has impacted the disciplinary system the most is the requirement that the NOPD investigate all complaints based on the allegation as opposed to the anticipated outcome. The NOPD has interpreted this to mean that they are going to investigate any complaint, regardless of its facial merit. The Consent Decree also formalized the NOPD policy to accept all complaints, whether they are in person, anonymous, from third parties, via email, etc. I had one case where someone in Australia didn’t think that an officer treated someone right based on an episode of a television show he saw. Finally, the Consent Decree limits the cases that can be disposed of as NIM (No Investigation Merited).
The Consent Decree initially led to an increase in the number of disciplinary investigations. However, with the use of body worn cameras, and tools such as Non-Disciplinary Counseling, Negotiated Settlement, and Mediation, the number of disciplinary investigations looks to have topped off and dropped a little the past few years. That being said, there are still more than 700 PIB Control numbers used every year.
First and foremost, I have a lot of people call and say “I hate to bother you with something this stupid…” Nothing is that stupid. Stupid things are stupid because 1) someone did something stupid and there is no explaining it away, or 2) someone made an allegation that is so ridiculous that you can’t possibly imagine it being sustained.
In the first case, where someone does something stupid – made a simple mistake or error – and there is nothing that can explain it away, there is certainly good reason to call. The FOP offers a benefit known as the Salary Reimbursement Option. No other organization offers anything like it. Here is how it works:
Salary Reimbursement Option (SRO)
The FOP Legal Defense Plan provides legal representation to its members so that they can defend themselves from accusations that constitute a violation of rules and regulations. This representation includes appeals, if necessary. However, sometimes you are accused of something that you did. For example, maybe it was one of those days and by the time the tenth person has lied to your face, you had enough and uttered a string of profanities. This string of profanities was recorded on your body worn camera. Now, you are accused of violating the NOPD’s rule on Courtesy (Rule 2, Paragraph 2). The complaint will be sustained.
Your FOP attorney will argue on your behalf. If there is a way out, we will explore that. If there is no way out, then we will argue for the least possible penalty. This is when the Salary Reimbursement Option comes into play.
IF you are represented by an FOP attorney and the penalty involves a suspension, you and your FOP attorney will have the opportunity to discuss your options moving forward. You probably have an option to appeal. However, IF you are represented by and FOP attorney AND you and your attorney agree that your chances of success on appeal are slim, then the FOP will reimburse you for any suspension days at $150/day for up to 5 days. That’s right – if you get a suspension for something that you did and you are not going to prevail on appeal, you can get a check for $150 per suspension day from the FOP in lieu of appeal. In short, instead of wasting money appealing a suspension you are not going to win, you have the option of cutting your losses and, hopefully, getting back to even. YOU MUST BE REPRESENTED BY AN FOP ATTORNEY DURING THE DISCIPLINARY INVESTIGATION TO BE ELIGIBLE FOR THE SALARY REIMBURSEMENT OPTION. You can only be represented by an FOP attorney for a disciplinary investigation if you pick up the phone and call.
If you aren’t calling because the allegation is stupid and there is no possible way it could be sustained, you should know that plenty of stupid allegations have led to sustained violations. Additionally, it keeps your options open for the Salary Reimbursement Options.
Do they need to notify you of a pending complaint?
No. The NOPD is not required to notify you that you are the subject of a complaint. Some investigators do notify the accused officers.
Many people find out about pending investigations when they receive a notice from the Civil Service Department of an upcoming hearing. The letter states that the Department has request an extension of time in pursuant to Civil Service Rule IX, Sec. 1.4. If you get one of those notices, then you are an accused officer in a formal disciplinary investigation.
Extension Request Hearings
The Louisiana Police Officer Bill of Rights, La. R.S. 40:2531(b)(7), provides that administrative disciplinary investigations have to be completed within 60 days. It also gives investigators the option of requesting up to another 60 days, for a maximum of 120 days to complete the investigation. The investigator needs to show good cause for the extra time.Unfortunately, just about any excuse serves as cause for the extension. The letter says that you have to attend. However, if you call me, I can handle that hearing for you. These hearings can be good opportunities to learn some information. You can also agree to the extension. There are times when agreeing to the extension may be in your best interest.
There are many other ins and outs to the disciplinary system. There are statements, disposition notices (NOPD Form 308), Pre-Dispositions Conference Hearing Notices, Pre-Disciplinary Hearing Notices, Pre-Dispositions Conferences, Pre-Disciplinary Hearings, Penalty Matrices, Disciplinary Letters, Civil Service appeals, other appeals, etc. I will cover those in the next post.
There has been a bit of talk lately about “Astroturfing.” For those of you who aren’t familiar with the idea of astroturfing, it is when advocates for a certain issue or matter solicit people who aren’t really interested in the issue to appear and give the appearance that there is more support for or opposition the issue at hand. It recently came to light with regard to Entergy’s use of paid actors to appear before the New Orleans City Council to advocate for a new Entergy power plant. The article linked here is about the City Council investigating the use of paid actors by Entergy.
You may be asking yourself what this has to do with the New Orleans Civil Service Commission’s recent decision about whether the New Orleans Fire Department complied with the Civil Service Rules and the Louisiana Constitution. This decision by the Civil Service Commission was in response to the NOFD’s “appeal” of the New Orleans Personnel Director’s decision in appeals by NOFD employees who took the Captain’s test and felt as though they had been improperly passed over for promotion pursuant to Civil Service Rule VI, Sec. 6.1. The Civil Service Commission couldn’t actually act in an appellate capacity, so they conducted an investigation of the NOFD promotions and whether those promotions complied with Civil Service Rules and the Louisiana Constitution. So, the Civil Service Commission’s decision did not overrule the Personnel Director’s decision.
The Personnel Director’s decision held that the NOFD botched promotions in almost every conceivable way. She held that NOFD violated Civil Service Rule VI, Sec. 2.1, 2.3, and 3.1. The Personnel Director also held that NOFD violated the EEOC’s Uniform Guidelines on Employee Selection Procedures. The Personnel Director went on to recommend that some of the people passed over should be promoted and that the rules should be modified to prevent the types of overreaches by the NOFD.
The Civil Service Commission tried their best to decide that the NOFD did nothing wrong. However, given the facts, that was impossible. So, the Civil Service Commission’s decision held that NOFD complied with the Civil Service Rules but they did not comply with the requirements of Louisiana Constitution Art. X, Sec. 7, which requires that promotions be made after consideration of merit, efficiency, fitness, and length of service, as ascertained by examination, which should be competitive. They concluded that since so much time passed between filing appeals and the decisions that followed that there wasn’t much they could do except pledge to put safeguards in place to prevent this from happening again.
I know there is still no connection to astroturfing. Here are my thoughts on that: The Civil Service Commission goes out of its way to cite a number of individuals and groups who testified in support of the Great Place to Work Initiative (GPTWI) when it was being discussed before being passed. For those who don’t know, GPTWI is where we lost some protections like the rule of 3 as it pertains to promotions. I suggest that GPTWI is where we lost competitive promotions in the City of New Orleans. It is also where many city employees lost all faith in the overall fairness and transparency of the promotional process. Anyway, the decision cites Andy Kopplin, who was CAO at the time, Dr. Charlotte Parent, the Director of the Department of Health at the time, as well as NOFD Superintendent Timothy McConnell, and other Mayoral appointees. The decision also cites the Bureau of Governmental Research and Bright Moments — more cheerleaders for former Mayor Landrieu.
When the public comments on the GPTWI began, it was quickly obvious that the Civil Service Commission’s meeting room would be insufficient to hold the people who wanted to comment on the proposed rule changes. The Commission moved the meeting to the City Council Chambers to accommodate the larger-than-average audience. The first day in the City Council Chambers didn’t disappoint. The Chambers were full of employees and former employees who were lined up to speak out against the proposed rule changes. You could count the number of people speaking in favor of the GPTWI on one hand and those people clearly had an incentive to speak up — they held positions appointed by the Mayor.
It was pretty obvious that some phone calls were made after the poor showing on day 1 in the Chambers. On day 2, a few more people showed up to testify in favor of GPTWI. The Bureau of Governmental Research and a few other groups, or at least some leaders from those groups, came to testify in favor of the GPTWI.
This is just another form of astroturfing. The Mayor lined up people who were indebted to him in one fashion or another and solicited their support for an issue they had little to no real interest in. These folks testified before the Commission and gave media interviews in support of Mayor Landrieu’s initiative. My guess is that if the records have not already been destroyed that a public records request would probably reveal emails, phone calls, and meetings with the folks that appeared in favor of the initiative soliciting their appearance. The most disturbing part of all this is that after overwhelming comment in opposition to the GPTWI combined with the lackluster commitment shown by those who actually testified in favor of the rule changes, the Civil Service Commission still voted to enact the “reforms” with little, if any, discussion. The only difference between this type of astroturfing and the type of astroturfing used by Entergy is that Landrieu’s people only needed to give the appearance of influencing the Commissioners. The real influencing had already been done.
I expect to see a decision in the NOPD promotion appeals soon. It should be close to the NOFD decision. The only real way to remedy this problem is to change the Rules. A change reinstating the Rule of 3 and the banding system in use before GPTWI would restore some confidence in the promotional system in New Orleans. More importantly, it would protect our public servants, and the public, from the favoritism, discrimination, political interference, etc. that are the inevitable consequence of giving each appointing authority an unlimited amount of discretion.
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.
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.