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

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.

 

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The FOP Legal Defense Plan and NOPD Discipline

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

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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FOP Legal Plan – 2014

fop_logo1As 2014 draws to an end, I thought I would take this opportunity to say a few things about the FOP Legal Defense Plan.

No other Legal Defense Plan provides as much coverage to law enforcement officers as the FOP Legal Defense Plan.  FOP attorneys are available to FOP members for a variety of needs and are available 24/7.

Going into 2015, I would like to tell FOP members that NO MATTER IS TOO INSIGNIFICANT to take advantage of the services provided through the FOP Legal Defense Plan.  Members are encouraged to call their FOP Legal Defense Plan attorney for anything involving the administrative disciplinary process.  This includes statements (whether accused or witness), disciplinary hearings, Rule IX hearings, Accident Review Board hearings, Civil Service extension hearings, and anything else dealing with the disciplinary process.  No matter is too minor.  Sometimes the most innocuous matters have broader implications.

The FOP Legal Defense Plan also offers a Salary Reimbursement Option (SRO) to its members.  The Salary Reimbursement Option allows members to recover up to five (5) suspension days in lieu of appeal.  YOU MUST BE REPRESENTED BY AN FOP ATTORNEY THROUGHOUT THE PROCESS TO QUALIFY FOR THE SALARY REIMBURSEMENT OPTION.  For example, if you are represented by an FOP attorney in a DI-1 investigation for missing court and you receive a one (1) day suspension.  If, after consulting with your FOP attorney, you decide that your chances of success on appeal are slim, the FOP will reimburse you $150 for your one day suspension.  The FOP Salary Reimbursement Option will cover up to five suspension days at $150 per day.  Of course, if it will be beneficial to file an appeal with Civil Service, your FOP attorney will be able to guide you in the right direction.

In addition to legal representation in the disciplinary process, the FOP attorneys are available to assist officers with a myriad of different issues.  I have helped officers with promotions, injuries, reinstatements, grievances, etc., etc., etc.

The FOP Legal Defense Plan also provides notary services to its members at no cost.

The FOP Legal Defense Plan also provides up to two hours of legal services for any legal matter that would not normally be covered by the Legal Defense Plan.  For example, wills, power of attorney, divorces, etc.

Finally, we have also assisted many officers in legal cases involving automobile accidents, motorcycle accidents, and other types of personal injuries.  The firm of Livaccari Villarrubia Lemmon, LLC consists of myself and my father.  My father has been practicing personal injury law for over thirty years, initially representing insurance companies and for the past 20+ years representing plaintiffs in personal injury actions.  The benefit of working with an attorney who you know and trust can not be overstated.

My phone number is widely available and is on your membership card.  As a former police officer, I feel as though I am able to provide a unique understanding and knowledge-base when handling matters involving members of the FOP.

Livaccari Villarrubia Lemmon, LLC
101 W. Robert E. Lee Blvd.
Suite 402
New Orleans, LA 70124
504-488-3702

 

Going back through 2014, I, as an FOP attorney represented 382 individual police officers (roughly 30-35% of all New Orleans Police Department officers) through the FOP Legal Defense Plan in the following capacities (figures are slightly underestimated):

Accident Review Board – 36
Disciplinary Hearings – 72
Recorded Statements – 213
Rule 9 Hearings – 23
Notary Services – 95

Formal Disciplinary Investigations (#NOPD DI-1)

IMG_1309-0Periodically, I like to take a moment to make sure people are up to speed on the status of formal disciplinary investigations for NOPD and the benefits provided by the FOP Legal Defense Plan.

The federal consent decree entered into by the City of New Orleans and the Dept. of Justice requires that complaint classification be “allegation-based” as opposed to “outcome-based.”  That has been interpreted to mean that whatever the allegation is, even if it is extraordinarily unlikely or impossible, that allegation will be investigated.  While I disagree that the consent decree requires a full, formal investigation into every allegation, the current interpretation results in that conclusion.  The end result is that every complaint, no matter how insignificant, is likely to result in a formal disciplinary investigation.

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NOPD Police Officer IV Promotions

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The New Orleans Police Department should be making Police Officer IV promotions soon. Inevitably, there will be some people who are passed over for this promotion.  The most common reason for someone to be passed over is a pending DI-1 investigation.  Other reasons one might be passed over include recent disciplinary actions, not having enough time to be included on the register (6 years), excessive undocumented sick days, and simple mistakes or oversight on behalf of the NOPD.

DI-1’s

A DI-1 is considered pending from the date the DI-1 is initiated.  In the case of a not sustained, unfounded, or exonerated DI-1, the DI-1 is no longer pending when the not sustained, unfounded, or exonerated disposition has been approved up the chain of command.  If the DI-1 is sustained the DI-1 is no longer pending when the Superintendent of Police signs of on the disciplinary letter.

That means that when the investigator gives you a “Notice to Accused Law Enforcement Officer Under Investigation of a Pre-Disciplinary Hearing or a Determination of an Unfounded or Unsustained Complaint” form, the DI-1 is still pending.  If the recommended disposition is not sustained, exonerated, or unfounded, then it will be finalized when it is approved up the chain of command.  It should be noted that the recommended disposition can also be changed to sustained on its way up the chain of command.

If the recommended disposition is sustained, then you will be later issued a Notice of Disciplinary Hearing.  A disciplinary hearing will actually follow that notice and you will be informed of a recommended penalty.  The DI-1 is still pending at that point.  The DI-1 will remain pending while the recommended penalty goes up the chain of command and is not final until signed off on by the appointing authority.  In the NOPD, the appointing authority is the Superintendent of Police.

How do you know when all that happens?  Well, in the case of sustained violations, you know for sure when you are told to go to PIB to sign for a disciplinary letter.  This is a letter that is on NOPD departmental letterhead (as opposed to a 105).  If the case is not sustained, exonerated, or unfounded, you will not be notified.  The best way to know the status of any pending DI-1 is to go to PIB and request a copy of your short form.  If you need assistance interpreting the DI-1, feel free to give me a call.

PRIOR DISCIPLINARY ACTION

Current policy dictates that an officer is ineligible for promotion if there has been a sustained disciplinary infraction that included a penalty greater than Letter of Reprimand for a period of one year from the date of the infraction.  So, if you had a sustained disciplinary investigation and the penalty for that violation included any suspension days, you are ineligible to be promoted for a period of time.  Again, your short form contains the relevant information to be considered.

For example, if an officer was the subject of a disciplinary investigation that was initiated on 10/1/13 which was sustained and the officer was suspended for one day, then that officer would not be eligible for promotion until 10/1/14.  However, you do become eligible for promotion once that period has passed.  If an officer is disciplined with a Letter of Reprimand, that officer’s eligibility to be promoted is not effected.

MINIMUM QUALIFICATIONS

If you do not meet the minimum qualification for promotion, you will not be placed on the register by Civil Service.  For example, if you did not have six (6) years when P/O IV promotions are made, you will not be on the promotional register.  However, it is possible to be added to the register if an officer no longer lacks one of the minimum qualifications such as the length of service requirement.  Let us know if you run into that problem.

EXCESSIVE SICK LEAVE

Officers are allowed eight (8) undocumented sick leave days per calendar year.  If you exceed eight (8) undocumented sick leave days in a calendar year, you will be deemed ineligible for promotion.  As a brief recap, every sick leave usage starts out undocumented.  If you turn in an NOPD Form 50 when you return to work, the sick leave usage is changed to documented.  If you have this particular problem, feel free to call.

MISTAKES

Everyone makes mistakes.  Sometimes folks are inadvertently passed over for a myriad of reasons.  If you are passed over and you don’t have any of the issues detailed above, give us a call and we will be happy to look into it.  The NOPD has committed to promoting any mistakenly passed over individuals with back pay.  Sometimes this has been an uphill battle, but Chief Landry and her staff have been very helpful.

In addition to P/O IV promotions being on the horizon, we anticipate that there will be more Police Sergeants promoted off of the current register and Civil Service intends to give a Police Lieutenant test later this year (October-ish).  There has also been an increase in the number of DI-1 investigations largely as a result of the consent decree.

Everyone should make a habit of requesting a copy of his or her short form on a regular basis to make sure they know the status of their disciplinary file.  You can do this by appearing at PIB and completing a request that is available at the front desk.

The Fraternal Order of Police is dedicated to assisting officers however we can.  However, the only way we know about these promotional problems is if the officer experiencing problems tells us.  In the past, I have spoken with many P/O II, P/O III, and Sergeant applicants and we have been able to help most of them.  We can track the one year waiting period or check on the status of pending items.  We can’t do any of that if we don’t know of the problem.

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Louisiana Police Officer’s Bill of Rights Primer

The Crescent City Lodge of the Fraternal Order of Police has been fortunate to be involved in the maintenance, revision, and defense of the Police Officer Bill of Rights for the State of Louisiana.  Myself, Jim Gallagher, and others have been instrumental in drafting much of the language currently found in the legislation, testifying in front of Legislative Committees, meeting with Legislators, and negotiating with groups whose interests differ from ours like the Louisiana Sheriff’s Association.

The Rights of Law Enforcement Officers While Under Investigation (Police Officer Bill of Rights) can be found in La. R.S. 40:2531.  The law applies to Probation and Parole Officers, State Police, campus police employed by a state-supported university, and law enforcement officers employed by any municipality who are under investigation with a view to possible disciplinary action, demotion, or dismissal.

Certainly, this law applies to employees of the New Orleans Police Department.  The law does not apply to Deputies employed by the Orleans Parish Sheriff’s Office.

The provisions of this law provide minimum standards applying specifically to any investigation of the covered group of law enforcement officers.  This also raises the first interesting question with regard to this law.

Who qualifies as a “law enforcement officer”?

Commissioned, POST certified police officers employed by a municipal police department qualify as law enforcement officers.  The same is true of State Troopers, and Probation and Parole Agents.

There have been questions recently about whether police officers employed by a state-supported university who do not work on that university’s campus are covered.  For example, the police officers employed by the L.S.U. Medical Center are employed by an arm of a state-supported university.  However, they do not work as “campus police” in the truest sense of the term.  At the same time, the L.S.U. Medical Center is the campus for medical students enrolled at L.S.U.  In the broadest sense, those officers would be included, but if one is trying to exclude individuals from the protection of the statute, an argument could be made.  At present, there is no judicial guidance on this issue.

Another question comes up with regard to employees of a municipal police agency who are not commissioned, POST certified police officers.  For example, what about dispatchers or 911 call takers?  What about Police Technicians?  What about Crime Lab Technicians who are not commissioned, POST certified police officers?  What about jailers?

One of the main sources of interpretation that we have for the Police Officer Bill of Rights is the Louisiana Attorney General.  The Louisiana Attorney General provides legal opinions on questions presented to it by governmental bodies or boards.  These opinions are not binding like a decision from the Supreme Court might be.  These opinions are considered “persuasive” argument on the topic covered in the opinion.  That means that Courts can consider the opinion, but they are not required to agree with it.

The Louisiana Attorney General has opined that whether one qualifies as a law enforcement officer or not is based on function and authority (La. AG Op. 93-52).  The AG looked to the Peace Officer Standards and Training Law for guidance and the definition of Peace Officer found therein.  This definition, which applies specifically to POST, says a Peace Officer is “any full time employee of the state, a municipality, a sheriff, or other agency, whose permanent duties actually include the making of arrests, the performing of searches and seizures, or the execution of criminal warrants, and is responsible for the prevention or detection of crime or for the enforcement of the penal, traffic, or highway laws of this state.”

The AG stated that this definition only gives guidance about who is a law enforcement officer.  The AG is of the opinion that jailers are law enforcement officers, but clerks and radio operators are not.  In the AG’s opinion, the dictating factors appear to be the authority to make arrests, issue criminal warrants, effect seizures, etc.

What constitutes an “investigation”?

The Police Officer Bill of Rights clearly states that it applies to law enforcement officers who are under investigation with a view to possible disciplinary action, demotion, or dismissal.  This question is essential to the determination of when an investigation begins.

The AG looked to Black’s Law Dictionary for guidance (La. AG Op. 93-52).  In 1993, Black’s defined “investigate” as follows:  “To follow up step by step by patient inquiry or observation.  To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry.”  In 2012, the definition is a little shorter:  “1.  To inquire into systematically; to make the subject of a criminal inquiry; 2.  To make an official inquiry.”

The AG summarizes by stating that “if the investigation requires a close study or systematic inquiry into a situation, the protections afforded an officer under LSA R.S. 40:2531 apply.”  The AG further points out that the law requires that this close study or inquiry must be made with a view to possible disciplinary action, demotion, or dismissal.

Furthermore the AG indicates that “possible disciplinary action” should be construed as broadly as possible.  In short, the AG indicates that “any action taken by formal investigating authorities, such as the municipal internal affairs department, which could possible affect the job status of the officer requires that the minimum standards of LSA R.S. 40:2531 apply.”

What are these minimum standards by which investigations of police officers are to be conducted?

1.  The police employee under investigation shall be notified at the commencement of any interrogation of:

    1. the nature of the investigation;
    2. the identity and authority of the person conducting the investigation; and
    3. the identity of all persons present at the time of any interrogation.

It is important to note that the law requires the officer be notified of these things “at the commencement of interrogation.”  This is not necessarily the commencement of the investigation.

2.  Any interrogation of a police officer shall be for a reasonable period of time and allow for reasonable periods of rest and personal necessities of the officer.

In other words, no marathon interrogations while depriving that officer of sleep, food, etc.

3.  All interrogations of a police officer shall be recorded in full.  The officer can not be prohibited from obtaining a copy of that recording or a transcript of that recording upon their request.

4.  The police officer

    1. whether being questioned as a target or witness has the right to be represented by counsel, representative, or both;
    2. the officer shall be granted up to thirty (30) days to obtain such representation, during which time all questioning must be suspended.
    3. the officer’s counsel shall be allowed to offer advice to the employee or officer and make statements on the record regarding any question asked of the employee or officer at any interrogation, interview, or hearing in the course of the investigation.

5.  No statement made by the police officer during the course of an administrative investigation shall be admissible in a criminal proceeding.

6.  The investigation needs to be completed within 60 days.

One could probably write a book on this one paragraph.  I can assure you that many legal briefs have been written on this topic.  Following is my summary:

The investigating agency has 60 days to complete an administrative investigation of an employee.  The investigator can also petition the Civil Service Commission for an extension of that time limit, up to an additional 60 days.  There is some debate about whether that is the case in New Orleans since New Orleans is not subject to Municipal Fire and Police Civil Service law and does not have a Municipal Fire and Police Civil Service Board, but I will save that discussion for a later day.

With the extension, the investigating agency has up to 120 days to complete an administrative investigation.  These time restraints do not apply to criminal investigations, but they do apply to the administrative investigation of criminal allegations.  For example, if you are going to be charged by the District Attorney with La. R.S. 14:67, that investigation is not hampered by the time limitations found within LSA R.S. 40:2531(b)(7).  If your employer is investigating you for a possible violation of Rule 2, Moral Conduct, to wit: R.S. 14:67, then that investigation is subject to the time restrictions found within LSA R.S. 40:2531(b)(7).

It is important to note that the provisions of LSA R.S. 40:2531(b)(7), commonly known as the 60 day rule, are the only provisions of the Police Officer Bill of Rights not applicable to criminal investigations.

The investigation begins when it begins, but no later than 14 days from the receipt of a formal, written complaint.  This allows a few days for the investigating agency to taken in the complaint, conduct whatever intake functions are necessary, and assign the complaint for investigation.  In New Orleans, it is usually safe to go by the date on the DI-1.  The DI-1 is the result of the intake process.

A bigger question exists about investigations that begin before a DI-1 is initiated or in other agencies with different practices).  The Louisiana Attorney General indicates that an investigation begins “when an authorized person begins to make inquiry or collect evidence concerning a situation with an officer where the end result is “with a view to possible disciplinary action, demotion, or dismissal.””

An investigation ends when the officer under investigation is notified of a pre-disciplinary hearing, or a determination of an unfounded or unsustained complaint.  Exactly what constitutes this notice is the subject matter of another debate and will hopefully be settled by a Court.  I can say that the New Orleans Police Department’s position is that the investigation ends when the officer under investigation is given a form entitled “Notice to Law Enforcement Officer of Pre-Disciplinary Hearing or a Determination of an Unfounded or Unsustained Complaint.”  It is my position that this form is insufficient and the investigation is ended when the officer is issued a form titled “Notification of Disciplinary Hearing.”

LSA R.S. 40:2531(b)(8) specifically applies to Louisiana State Police, but is substantially similar to the provisions of LSA R.S. 40:2531(b)(7) discussed above.

What remedies are provided by the Police Officer Bill of Rights?

LSA R.S. 40:2531(C) provides the employee’s remedies if the minimum standards discussed above are not met.  The law states that “There shall be no discipline, demotion, dismissal, or adverse action of any sort taken against a police employee or law enforcement officer unless the investigation is conducted in accordance with the minimum standards provided for in this Section.  Any discipline, demotion, dismissal, or adverse action of any sort whatsoever taken against a police employee or law enforcement officer without complete compliance with the foregoing minimum standards is an absolute nullity.”