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.

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Opinions are like ________. Everybody has one.

Today (9/30/16), Jarvis DeBerry published his opinion on the recent interest in the NOPD’s investigation into the sex crimes unit and several officers that resulted from a report by the Office of Inspector General.  Mr. Debeery’s opinion is not that of a reporter — someone interested in ascertaining the facts of a situation.  Mr. Debeery’s opinion is exactly that — an opinion — based on fallacies and prejudice.

Let’s start with what is true (partly).  Mr. Debeery charges that my statements about this investigation prove “the unions (the FOP) reflexively defend their members, no matter the details of criticism.”  I am an attorney.  Several of the officers investigated by the NOPD in this matter are my clients.  The relationship is attorney (me) – client (officer).  The FOP is not a party to that relationship.  A lawyer should act with “commitment and dedication to the interests of the client and with zeal in advocacy on the client’s behalf.”  I have a responsibility to defend my clients.  That is what I was hired to do.  While it is true that the Fraternal Order of Police in New Orleans does not hesitate defend its members when it is called for, that simply does not fit into the equation in these circumstances.

Mr. Debeery seems to find it incredulous that I indicated that I did not know what the officers were accused of.  He says “But there’s no excuse for Livvacari not knowing what the accusations are.”  He then refers to the November, 2014 report by the Office of the Inspector General making which made their “transgressions” “quite plain.”

Mr. Debeery states that the Inspector General “didn’t treat it’s investigation in to the sex-crimes unit like the typical report that accuses an agency of being wasteful with its resources.”  I agree with that statement and maybe this investigation is an indication that the Inspector General should stick with what he knows.

The first thing cited by Mr. Debeery from the Inspector General’s report is that 1,290 sexual assault and child abuse cases had been assigned to five detectives and 86% of those had not been followed up on with an investigative report.  He goes on to say that 2/3 of those cases (840) were labeled as miscellaneous incidents.  On its face, this appears to be problematic for those five officers.  However, it was not long before the NOPD determined, and announced publicly, that 677 of those 840 cases were sex offender registry checks.  That is, sex crimes detectives were responsible for verifying that the information provided by sex offenders following their convictions was correct.  Those 677 cases were properly classified as miscellaneous incidents.  The NOPD has since created a new category for sex offender registry checks, but they are still not sex crimes investigations requiring follow-up.  The report, along with Mr. Debeery, also ignores the system of 21-x and 21-y signals designed by the police administration in an attempt to pigeon hole cases which required more information before they could be properly classified.  The report also relies on the lack of supplemental reports by officers on investigations as an indication that detectives were being lackadaisical.  This demonstrates a lack of knowledge of police procedure on both Mr. Debeery’s part and the Inspector General’s part.  The investigation into this matter also revealed that some of the case identified by the Inspector General’s report had already reached their conclusion in the criminal justice system — the cases had already been prosecuted and had come to their conclusion.  This would not be possible if they had been ignored as the Inspector General’s report had declared.  There were likely some cases which did not get the attention they deserved.  But, supplemental police reports are only required when evidence was logged in or an arrest was made.  Otherwise, updates were logged in the case management system (CMS).  This is an overly simplistic explanation, but the short version is that manpower, not indifference, was responsible for cases which were not followed up on as thoroughly as the detectives would have liked.

Debeery then goes on to recount the Inspector General’s allegation that a child younger than 3 appeared at a hospital with a sexually transmitted diseased and that Akron Davis ignored this.  The lack of follow-up by Debeery, or possibly his inattention to information learned at a later time, much like the OIG’s inattention to detail, leads to reckless allegations such as this which are damaging to Detective Davis’s reputation.  First of all, this case was not assigned to Detective Davis.  Secondly, and much more importantly, the NOPD had already investigated this case and was well-aware of how this child had contracted a sexually transmitted disease.  There is a case file several inches thick on this particular child.  So, the NOPD already knew the source of the sexually transmitted disease.  How much time should Detective Davis have spent determining the source of the sexually transmitted disease when there were so many other victims the understaffed unit had to try to help?  He then points to two other cases which Detective Davis would not have enough information to defend, explain or take responsibility for.

The next case cited Mr. Debeery is when Sgt. Merrell Merricks allegedly backdated an investigative report requested by the Inspector General.  This clearly shows a lack of understanding of police procedure.  In any event, those charges were not substantiated against Sgt. Merricks.  I do not represent Sgt. Merricks.  The same is true of the allegations about Detective Williams and his report writing.  Finally, Mr. Debeery cites a statement allegedly made by Detective Damita Williams regarding the applicability of a simple rape charges.  There is no context to this statement.  Did you know there are circumstances when simple rape is not an applicable charge?  For example, a husband cannot be accuse of simple rape of his wife.  Context is important.

Mr. Debeery winds up with his opinion that this should have been enough information for me and the public.  Unfortunately, I know more about this investigation than the public.  I certainly know more about this investigation than Mr. Debeery.

The Louisiana Constitution, something I would think Mr. Debeery would favor being applied to everyone as it was intended, establishes due process for civil service employees.  The process that is due requires that civil servants be apprised of the exact violations leading to disciplinary action.  The obviously flawed report by the Inspector General is insufficient to satisfy that requirement.  I should know the details of the circumstances leading to the discipline of my client.  That is the law.

We agree on one thing:  there has been a significant change in the operation of that unit (except that the detectives are still under water with an exorbitant case load).  This is a good thing.  This is also the only thing that really addresses the problems, in general terms, that existed in the structure of the sex crimes unit.  Disciplinary actions taken against good officers are not what led to this improvement.

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.

Reasonableness and Post-Riley Smartphone Searches

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The below article was reproduced from The Federal Law Enforcement Informer, August 2015 issue.  The Informer is a product published by the Department of Homeland Security, Federal Law Enforcement Training Center (FLETC), Office of Chief Counsel, Legal Training Division.  The entire document, which contains case notes on notable federal cases, can be found here.

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#NOPD Use of Force Update – Ch. 1.3

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This is a general review of NOPD policies on the use of force.  The Department should be providing use of force training and nothing contained herein should be considered to supplant any information provided in official training.  In fact, if anyone notes something in this article which is contrary to what is being taught in training, please let me know.

Chapter 1.3, titled Use of Force, will be effective on August 9, 2015 and will replace Policy/Procedure 300.

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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

NOPD Disciplinary Investigations Update (Updated)

As most officers are aware, the NOPD has interpreted the consent decree as requiring they investigate absolutely every allegation, no matter what it is.  I have seen formal disciplinary investigations of officers alleged to have “smirked,” “sighed loudly,” and “made go-golly eyes.”

Most of these investigations are receiving the appropriate disposition at the conclusion of the investigation.  However, one thing that I have noticed is that officers are being sustained for other, minor, administrative violations.

For example, one common sustained violation is for failing to complete an FIC card.  Officers should be aware that they are required to complete FIC entries on individuals they come into contact with regardless of whether that person is arrested, cited, or merely interviewed.  In the past, officers were not required to complete FIC’s for individuals who were arrested or cited.  Why complete an FIC when the information is being documented in-depth in an incident report?  The short answer is that the information, particularly arrested subjects versus not arrested subjects has to be maintained separately.  In any event, the current rule requires an FIC whether an incident report is completed or not.  Just the other day, I was involved with an investigation where an officer, who was not initially accused of anything, was sustained for failing to complete an FIC.

Next is detail forms and the detail database.  As we are all well aware, the consent decree has made a total mess of the paid detail system.  Who really knows if we are coming or going with anything regarding details?  It is a disaster.  The only upside is that hopefully this disaster will lead to pay raises (we’re working on it).  In any event, if you are working a paid detail that is not being managed by OPSE, you still need to have an NOPD Paid Detail Authorization form in for that detail.  Even if you are working an OPSE detail, you still need to call the dispatcher and get an item number, etc., when you get to the detail and you still need to enter that item number and other information into the detail self-reporting database the next time you are at work.  If there is a complaint regarding a detail, no matter what the complaint is, you can rest assured that PIB is going to check the detail authorization and the database in the course of the investigation.

Finally, I would like to point out FOB Policy 39.  FOB Policy 39 requires platoon sergeants to monitor how long calls have been holding and make call backs to complainants on any call holding more than 60 minutes.  I have seen a marked increase in the number of investigations alleging violations of FOB Policy 39.  I understand that this is a tall order when there is one sergeant, one desk officer, and two officers on the street.  However, when the complaint comes in that someone is upset they had to wait 3 or more hours for the police to arrive, you can rest assured that will be one of the first things PIB checks.  Sergeants have the option of asking the desk officer to make the call backs, but it is ultimately the responsibility of the sergeant to monitor the length of times calls are holding. That being said, I would keep an eye out for potential revisions to that policy that may require a more active part on behalf of the desk officer.  As it stands today, it is the sergeants responsibility.  Make sure that everything that is done in this regard is relayed to the dispatcher so that it is included on the complaint history for that item and is recorded on the dispatch channel.

UPDATE:  I would also like to mention MVU’s.  Just because you have those pretty body cameras does not mean that you do not have to worry about the in-car dash cams.  If you have an MVU that does not work for whatever reason, or you were never issued a USB key, please note that on your Trip Sheet every time.  It may not suffice to note it once.  When you get in a car, make sure to check the functionality of the dash cam every time.  If it is full, note it on your Trip Sheet.  If the front camera is missing, that does not mean that the cameras do not work.  Note it on your Trip Sheet.  Notify your supervisor.  Do it every day.  If the camera works, use it as described in the policy.  This is another thing that investigators routinely check in the course of a DI-1 investigation.

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Disciplinary Letters, Civil Service Appeals, and SRO #NOPD #FOP #FOPNO

The culmination of the disciplinary process within the New Orleans Police Department consists of a phone call one day, when you least expect it, instructing you to appear at the Public Integrity Bureau to sign for a disciplinary letter.  The disciplinary letter is a letter on departmental letterhead, signed by the Superintendent, which lays out the alleged cause justifying the discipline, the rules allegedly violated, and the imposition of the final discipline (suspension, letter of reprimand, etc.).

While this is the end of the line for the NOPD’s disciplinary process, it is not the end of the line for classified employees or FOP members.  You have a number of options available to you at this point.

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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.”