Tag Archives: Di-1

2019 FOP Legal for NOPD

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Each year, I like to take a look back at the preceding year to give the members of the Crescent City Lodge of the FOP an overview of the disciplinary system in New Orleans and the services I provided to members of the FOP Legal Defense Plan. It has been pretty consistent the past few years and this year is no different.

I would like to start by pointing out that every case, whether you are an accused officer or a witness officer is the kind of case you should call me about. I regularly have officers tell me that they didn’t call because they didn’t think it was a big deal or because I might be too busy for them. Unfortunately, this commonly happens after a not so big deal has become a big deal. I have been representing police officers since I graduated from law school. So, I understand that officers don’t always get a whole lot of notice before finding themselves involved in an investigation or being notified of a Civil Service extension hearing. My practice has been built around those types of cases from the beginning.

You are guaranteed legal representation by the Louisiana Police Officer’s Bill of Rights. You should always take advantage of that. Having a legal representative has a number of benefits. First of all, I will make sure your rights as listed in La. R.S. 40:2531 are protected. Hopefully, we can avoid little to nothing cases turning into a big deal. Having an attorney from the FOP Legal Plan also makes you eligible for the Salary Reimbursement Option where the FOP will repay you for up to 5 suspension days in lieu of appealing the disciplinary action. There is no downside to exercising your right to counsel.

I would also like to emphasize that when I represent a police officer through the FOP’s  Legal Defense Plan, The attorney-client relationship exists between me and the officer I represent, not the FOP. So, any privilege exists between me and the officer. Any decisions are made based on conversations between me and the officer. If you are a member of the FOP Legal Defense Plan, we will be there for you. We don’t ask any questions or make any judgments. The FOP does not interfere in my representation of any Legal Plan member. There is no downside to exercising your right to counsel.

In 2019, I represented 412 individual officers in one capacity of another. There were at least 726 PIB control #’s cut by the NOPD in 2019. There were certainly more than that.

In 2019, I represented officers at 237 interviews (statements) with investigators as part of formal disciplinary investigations. I represented officers at 100 pre-disciplinary hearings. I represented officers in 11 Rule 9 hearings, 36 Accident Review Board hearings, and 111 extension request hearings. I represented 13 officers in 5 officer-involved shootings.

I would expect 2020 to look a lot like 2019. Feel free to call and I will be there for you — there is no downside to exercising your right to counsel.

FYI – Civil Service Appeals

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Rule II, Section 4.3 of the Rules for the New Orleans Civil Service Commission state as follows:

“Appeals to the Commission must be actually received in the Department of Civil Service no later than the close of business on the thirtieth (30th) calendar day following the date of the disciplinary letter provided to the employee by the Appointing Authority. Should the thirtieth (30th) calendar day fall on a weekend or an official city holiday, written appeals will be accepted no later than the close of business on the workday immediately following. The date the appeal is date/time stamped in the Civil Service Office shall be presumed to be the date of receipt of an appeal. (amended June 10, 1982; August 25, 1983; January 21, 1988, effective February 1, 1988).”

Why is this important? This is important because if you want to appeal discipline taken against you, the appeal has to be filed in a timely manner.

IF YOU DO NOT FILE THE APPEAL WITHIN THIRTY (30) DAYS OF IMPOSITION OF THE DISCIPLINE, THEN THEY WILL ALLOW YOU TO FILE AN APPEAL, BUT IT WILL BE THROWN OUT WHEN THE CITY FILES A MOTION FOR SUMMARY DISPOSITION.

I habitually explain to my officers upon conclusion of a disciplinary hearing the following information:

  1. The hearing officer (Commander, Deputy Chief, Superintendent’s Disciplinary Committee) only makes a recommendation because only the Superintendent of Police (the Appointing Authority) can institute discipline.
  2. The fact that a pre-disciplinary hearing has been held does not mean the FDI (Formal Disciplinary Investigation) is complete.
  3. The recommended discipline has to go up the chain of command. Assuming everyone who has to sign does so after circling “APPROVED,” the case goes to a stack of cases awaiting disciplinary letters.
  4. It is not complete until you receive “cause expressed in writing” as required by the Louisiana Constitution. That “cause expressed in writing” is memorialized in the form of a disciplinary letter. That letter is written on NOPD letterhead and signed by the Superintendent.
  5. There is no telling when you might be issued the disciplinary letter. You will receive a phone call, an email, or some type of notice that you need to report to PIB to sign for the disciplinary letter.
  6. This letter is important for several reasons.
    1. First and foremost, it satisfies the requirements of the Louisiana Constitution.
    2. Secondly, it starts the clock on the 30 days you have to file an appeal as specified in New Orleans Civil Service Commission Rule II, Section 4.3 as quoted above. The date typed on the top of that letter is the date used to start counting the 30 days.
    3. Since you are a good FOP member, if you choose not to appeal, you can send that letter to me for the FOP’s Salary Reimbursement Option.
    4. The letter also says when the suspension starts (assuming suspension time is involved).
  7. Whatever appeal hearing follows is limited to the contents of the disciplinary letter.
  8. FINALLY, THE NOPD DOES NOT PROVIDE ME A COPY OF THE DISCIPLINARY LETTER. YOU, MY OFFICER CLIENT, HAVE TO LET ME KNOW WHEN YOU GET THE DISCIPLINARY LETTER. THIS IS CRUCIAL BECAUSE WHILE I WILL FILE THE APPEAL AND I CAN GET IT FILED THE SAME DAY I RECEIVED THE DISCIPLINARY LETTER, 31 DAYS IS TOO MANY.

Who is entitled to an appeal? New Orleans Civil Service Commission Rule II, Sec. 4.1 reads as follows:

“Regular employees in the classified service shall have the right to appeal disciplinary actions to the Commission, including dismissal, involuntary retirement, demotion, suspension, fine, reduction in pay, or letters of reprimand as defined in Rule I. However, a demotion, reinstatement to a lower classification, transfer, reduction in pay or layoff resulting from the application of the provisions of Rule XII governing layoffs shall not be considered a disciplinary action and thus shall not warrant an appeal except as provided in Sections 4.5 and 9.1 of Rule II. (amended June 10, 1982; May 19, 1988, effective June 1, 1988, amended February 17, 2014, effective March 1, 2014).”

New Orleans Civil Service Commission Rule I, Sec. 1, Paragraph 66 defines “Regular Employee” as:

“an employee who has been appointed to a position in the classified service in accordance with the Law and these Rules and who has completed the working test period.”

That translates to employees who have successfully completed any probationary period.

Have questions? You know what to do.

Happy New Year and some Advice on Disciplinary Investigations

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First of all, I hope everyone had an enjoyable Holiday Season. It would be nicer if the Saints played like the offensive masters they are instead of letting the Vikings’ defense dictate the game. That being said, I know there are a lot of officers in New Orleans who were born and grew up in other parts of the country. If you’re not a Saints fan yet, I hope your team is faring better.

On a regular basis, I hear from officers “I didn’t want to bother you with something so minor” or “I know you are super busy, so I didn’t want to waste your time…” So, I want to get it straight.

First and foremost, you should call no matter how stupid or ridiculous the accusations may be.

What if you didn’t call at the beginning of the investigation? That’s ok. Calling is the important part. Got an email from Civil Service about a hearing you have to attend? Call me. I will help you out with that. Got a notice to render a statement? Call me. Got a call (or email if your computers are working) from your rank about scheduling a statement? Call me. Don’t think they can do whatever? Call me,

The fact is that sometimes I can be busy. That is because my practice is all about representing law enforcement officers. If you call and I can’t answer, leave a message or send a text message. You can send documents by texting or emailing photos of the documents.

The FOP’s Legal Defense Plan allows officers to benefit in so many ways that I can make my practice about representing law enforcement officers. It is important to remember that as a member of the FOP Legal Defense Plan, the attorney-client relationship exists between me and the officer. The FOP Legal Defense Plan acts only as the third-party plan administrator on behalf of the Legal Defense Plan. The FOP is not a part of the attorney-client relationship and doesn’t have any decision making authority in how a case is handled.

The FOP’s Legal Defense Plan covers administrative disciplinary investigations (on or off-duty), criminal investigations (on or off-duty – there may be some limitations to off-duty coverage), and defending civil actions related to an on-duty incident (secondary to primary coverage of employer). This legal protection is provided to accused officers or witness officers. In addition, the FOP will provide 2 hours of legal services per year for any legal need (Crescent City Lodge only) and 4 hours of legal services per year for family law issues (Crescent City Lodge only). The FOP also provides free notary services without limitation (Crescent City Lodge only).

The only trick to accessing these amazing legal benefits for law enforcement officers is to be an FOP member and pick up the phone and call or text — simple as that.

Yes. It was offensive pass interference.

VERY IMPORTANT – 1st Amendment Update

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UPDATE (8/1/19) – I started off with warnings not to share your political ideas on Facebook or the like. My recommendation has changed. Do not post anything on Facebook, Twitter, or the like. There are no privacy settings that will protect you. Sometimes it takes it hitting home to really make the message clear. 2 Gretna Police Department officers fired for one Facebook post. However, these days, hitting home does not mean it only hits home. The story of the 2 Gretna officers fired for Facebook posts can also be found in the New York Times. One of the Gretna officers wrote a post. The other officer merely clicked “Like” on the post. Play around with the search bar on Facebook. It is much more powerful than you might imagine. Search Google for tips and tricks for the Facebook search bar.

Just don’t do it. If you want to share pictures of your newborn child with your relatives spread across the country, go ahead – use Facebook – you can’t beat it. However, if you have a joke, a meme, or anything like that, keep it to yourself. When is the last time you tried to convey humor or sarcasm in a text message and it failed completely? It is very difficult to convey emotion or feeling. The same is true with Facebook. To make matters worse, there are those who don’t understand that articles in The Onion are satire, or what satire is. There are people who really believe that the United States Postal Service would create a  commercial to brag about the number of fingers shipped by kidnappers. They are quite comical. You will find at least some of them amazing and amusing. However, what you wrote as a police officer can and will get you fired. Hitting a “Like” button is reported in the New York Times.

We post the FOP newsletter in the Crescent City Lodge Facebook Group. Anything wrong with reading that there? No. You probably cannot post in the Crescent City Lodge Facebook Group at all — well, not without approval. Why? It is for your own protection. There is no such thing as privacy on the Internet and nothing goes away. There are some things that are completely beyond your control. This is not one of those things. Educate yourself and protect yourself – click here.

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FOP Legal Plan and NOPD Discipline Part 2 – A Sustained Disposition

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In my previous post about the FOP Legal Plan and the NOPD disciplinary system, I reviewed some general things about disciplinary investigations and the FOP’s Legal Defense Plan. I discussed notice, the FOP’s Salary Reimbursement Option, Extension Requests, and a few other things. This time, I am going to assume that the investigation has been completed – you and your FOP attorney have made a statement to the investigator and the investigator is ready to recommend a disposition.

The NOPD requires that the investigator issue NOPD Form 308 to the accused officer as the last step in the investigation before sending the case up the chain of command for review. NOPD Form 308 bears the title Notice to Accused Law Enforcement Officer Under Investigation of Completed Investigation. While the title of this form has changed a number of times over the years, the purpose has not. As I mentioned in the prior post, La. R.S. 40:2531(b)(7) requires that an investigation be completed within 60 days (120 days max). The statute says that the investigation will be considered complete upon notice to the law enforcement officer under investigation of a not sustained or unfounded disposition or notice of a pre-disciplinary hearing. NOPD Form 308 purports to cover all of these circumstances, thereby marking the end of the investigation. The investigator completes this form without approvals up the chain of command. Therefore, the disposition(s) can change.

NOPD Form 308 includes dates for a Pre-Disposition Conference and a Pre-Disciplinary Hearing, as well as each charge that was alleged and the disposition recommended by the investigator for that charge. Since the investigator does not know who is going to hold either of these hearings or the content of the hearing officer’s calendar, these dates are simply made up. As of this date, I have not seen a pre-disposition conference or a pre-disciplinary hearing held on the dates found on NOPD Form 308.

If the disposition on all charges is Not Sustained, Unfounded, or Exonerated (or any combination thereof), there will not be any type of hearing to come. I have had a number of questions in that regard lately. The NOPD does not conduct a pre-disposition conference or a pre-disciplinary hearing on any case with no sustained allegations.

If there is an allegation with a sustained disposition, then there will be at least one, and maybe two, hearings that follow. Depending on who conducted the investigation, the accused officer will receive either a Notice of Pre-Disposition Conference or a Notice of Pre-Disciplinary Hearing, or both.

If someone assigned to PIB conducted the administrative investigation and the potential penalty is not severe, then PIB will conduct the Pre-Disposition Conference and the Bureau to which the accused officer is assigned will conduct the Pre-Disciplinary Hearing. In that case, the accused officer will be issued a Notice of Pre-Disposition Conference by PIB at least 5 days prior to the hearing. If at the conclusion of the Pre-Disposition Conference there are still sustained allegations, then the accused officer will receive a Notice of Pre-Disciplinary Hearing a few weeks after the Pre-Disposition Conference either from the Division where the accused officer is assigned.

If the investigation is conducted by someone from the accused officer’s Bureau (usually the same Division) and the potential penalty is not severe, then the Pre-Disposition Conference and the Pre-Disciplinary Hearing will be conducted by the accused officer’s commander. These two hearings will be conducted together.

If the potential penalty for any sustained violation is severe (usually a 30-day suspension or greater), then the Pre-Disposition Conference and the Pre-Disciplinary Hearing are conducted together by a Superintendent’s Disciplinary Committee. A Superintendent’s Disciplinary Committee is chaired by the accused officer’s Bureau Chief and consists of the accused officer’s Bureau Chief and two (2) other Bureau Chiefs.

Pre-Disposition Conference

The purpose of a Pre-Disposition Conference is to finalize the investigator’s recommended disposition. The accused officer should be given notice of what alleged violations were sustained and why they were sustained. This notice would be found on the Notice of Pre-Disposition Conference. It is not on NOPD Form 308. The purpose of this hearing is to give the accused officer an opportunity to respond to the allegations sustained against him or her and, hopefully, eliminate any mistaken sustained allegations. At this hearing, the accused officer has the chance to explain why the sustained charges should not have been sustained.

It is important to note that the accused officer has the option of waiving the Pre-Disposition Conference. Commonly, the Notice of Pre-Disposition Conference is emailed along with a form which can be used to waive the Notice of Pre-Disposition Conference. If the accused officer waives the Pre-Disposition Conference, then all of the charges that were recommended sustained by the investigator will remain sustained. DO NOT WAIVE THIS PRE-DISPOSITION CONFERENCE WITHOUT CONFERRING WITH COUNSEL. I have seen where accused officers have inadvertently waived the Pre-Disposition Conference. Make sure you read what you are signing before signing.

Pre-Disciplinary Hearing

If, at the conclusion of the Pre-Disposition Conference, there are still sustained violations, the accused officer will have to attend a Pre-Disciplinary Hearing. The purpose of the Pre-Disciplinary Hearing is to give the accused officer the opportunity to give any mitigating factors and for the accused officer’s commander to recommend a penalty to the Superintendent. The disposition of the alleged violations cannot be changed at this hearing. The penalty is derived from the penalty matrix found in NOPD Chapter 26.2.1, which contains a presumptive penalty, a penalty with mitigating factors, and a penalty with aggravating factors. The penalty recommended by the accused officer’s commander can only be implemented by the Superintendent and is occasionally (not too often) altered by someone up the chain of command.

Superintendent’s Disciplinary Committee

If the potential penalty includes a suspension in excess of 30 days, demotion, or dismissal (termination), then the hearings are conducted together by a Disciplinary Committee. A Superintendent’s Disciplinary Committee is chaired by the accused officer’s Bureau Chief. Two other Bureau Chiefs will fill out the three-member committee. At that hearing the accused officer is given the opportunity to explain why the charges should not be sustained, as well as the opportunity to offer mitigating factors that might influence the disposition or penalty. It is possible for an allegation which has relatively minor potential penalties to be heard via Superintendent’s Disciplinary Committee if there is another accused officer with potentially severe penalties.

Disciplinary Letters

The Louisiana Constitution requires that any disciplinary action taken against a permanent, classified civil service employee be with “cause expressed in writing.” As such, the disciplinary process is not completed until either the Superintendent signs off on dispositions of Not Sustained, Exonerated or Unfounded, or the accused officer is issued a disciplinary letter from the Superintendent. If the accused officer is dismissed (terminated), then the accused officer will be given the disciplinary letter the same day. If there is any other penalty assessed other than termination, then the accused officer will be required to sign for a disciplinary letter some time later. It could be 6 months later or longer. The disciplinary letter will indicate when the imposed discipline must be served. Since the disciplinary letter constitutes the end of the disciplinary process, any appeals to the Civil Service Commission must follow issuance of the letter. An accused officer has 30 days from the date typed on top of the disciplinary letter to file an appeal. Since the Civil Service Commission has original and sole jurisdiction over these matters, disciplinary actions taken in accordance with Civil Service Rule IX can only be appealed to the Civil Service Commission. The disciplinary letter further serves to limit any subsequent proceedings to the grounds specified in the letter.

As you can see, there is a lot to the disciplinary process. For FOP members who do not deal with the disciplinary process every day, it can be a lot to take in. Most officers simply aren’t familiar with the ins and outs of the process because they don’t often have to interact with it. In addition, it has been my experience that most officers who are quick to explain how the system works provide as much misinformation as they do quality information. Fortunately, the FOP provides attorneys to help its members navigate the tricky waters of the disciplinary process. Pick up the phone and call. That’s all you have to do and I will be more than happy to help.

Next time… Critical Incidents and Criminal Investigations.

 

The FOP Legal Defense Plan and NOPD Discipline

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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.

 

NOPD Disciplinary Regs

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

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

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

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

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

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

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

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

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

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

What types of disciplinary investigations should I contact my #FOP attorney about?

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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.

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#NOPD Disciplinary Procedures and Your #FOP Legal Defense

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Recently, I had my first run in with the new NOPD disciplinary policies.  I want to repeat the advice I commonly give to FOP members:  CALL YOUR FOP ATTORNEY FOR ANY DISCIPLINARY INVESTIGATION WHETHER A WITNESS OR ACCUSED.

On May 15, 2016, several new “chapters” were placed in effect by NOPD.  The new policies caused changes to both the disciplinary procedure and the penalty matrix.  See my prior article about the changes here.

The new penalty matrix assigns a letter, A-G, to each of the rules —  A offenses are the least severe and G offenses are the most severe.  Professionalism (R.3P.1) is an A offense – Letter of Reprimand territory.  Honesty and Truthfhlness (R2.P.3) is a G offense – mandatory dismissal.

There are a couple of confusing points to make note of right off the bat.

Rule 4, Paragraph 2, Instructions from an Authoritative Source, was always the go-to rule for any violation of an NOPD policy.   Many people were unaware that Rule 4, Paragraph 4(c)(6) is also Instructions from an Authoritative Source.  One had a penalty range of Letter of Reprimand to 3-day suspension and one had a penalty range of Letter of Reprimand to 5-day suspension.  To make things as confusing as possible, several things have happened with Instructions from an Authoritative Source.

First, in the previous iteration of the penalty matrix, R.4P.4(b) was Supervisory Responsibility and R.4P.4(c) was Enumerated Offenses.  For some unknown reason, the new policy switched paragraphs b and c.  So, now R.4P.4(b) is Enumerated Offenses and R.4P.4(c) is Supervisory Responsibility.

Further, R.4P.2, Instructions from an Authoritative Source is now a “C” offense on the penalty matrix (2-10 days).  R.4P.4(b)(6) Instructions from an Authoritative Source is now a “B” offense (Letter of Reprimand-2 days).  The thought process is that the R.4P.2 Instructions is more akin to intentional insubordination as opposed to R.4P.4(b)(6) Instructions which is a negligent or unintentional violation of a rule or policy.  Of course, as mentioned above, it is going to take some time to settle into the new interpretation of these rules.

Confusing?  That is why no officer should be without the representation provided by their FOP attorney.  Pick up the phone and call, no matter how minor the case appears to be.

2015 #FOP #Legal Year in Review

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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.

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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.

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