Police Sergeant 2021

When Michael Harrison was Superintendent of the New Orleans Police Department, the Rethink Everything Department at City Hall worked with Chief Harrison to come up with a new plan designed to bring the Civil Service promotion system into “modern times.” Mayor Landrieu had already managed to ditch the banded lists the New Orleans Police Department had been using successfully for years. The banded lists were the result of a consent decree in a federal discrimination complaint. So, convinced that we no longer needed protections from discrimination, favoritism, and whatever ism’s you can come up with, Mayor Landrieu branded the Civil Service Department’s exam as “falsely objective” and replaced all of the Civil Service Commissioners until the Commission agreed with him. Thus we have the Great Place to Work Initiative.

In the past 24 hours, I have heard numerous people say that they did not understand how the NOPD is switching the list around when that was the purview of the Civil Service Department. This is not exactly true. The Civil Service Department is responsible for administering the test and preparing a list of eligible candidates. The Appointing Authority is responsible for selecting candidates for promotion. The Superintendent of Police is the Appointing Authority for the New Orleans Police Department. The Civil Service Rules, which have the force and effect of law, allow for selection of anyone who passed the exam. Of course, they have to be selected pursuant to La. Const. Art. 10, Sec. 7, which states that appointments have to be made “under a general system based upon merit, efficiency, fitness, and length of service…”

When Michael Harrison was Superintendent, he just chose whoever he wanted from the list of eligibles, regardless of their position on the list. I filed “appeals” pursuant to Civil Service Rule VI, Sec. 6.1 on behalf of three candidates for Police Lieutenant who had been passed over for promotion and I was able to make the case that the people that had been promoted ahead of my three candidates had not be selected based upon merit, efficiency, fitness, and length of service. Shortly thereafter, Chief Harrison left for Baltimore and Shaun Ferguson was selected to replace him. Chief Ferguson decided he was going to make promotions by going down the Civil Service list in order. Not to be undone, the Reinvent Everything Squad finally convinced the CAO to enact a policy that would guide promotions in the New Orleans Police Department. That policy can be found in CAO Policy Memo 143(R). The application of CAO Policy Memo 143(R) is how the Civil Service list has become a new, re-ordered list.

Is this legal?

Maybe. La. Const. Art. X, Sec. 7 states “The number (of candidates) to be certified shall not be less than three; however, if more than one vacancy is to be filled, the name of one additional eligible for each vacancy may be certified.” I believe this means that there has to be three candidates certified unless there is more than one position to be filled, in which case there will be more than three candidates certified — there will be one additional candidate certified per extra position to be filled. Apparently, I am in the minority in my belief. The Change Things for the Sake of Changing Things Squad believes that where this line states the number of candidates to be certified “shall not be less than three” means three candidates can be certified or 103 candidates can be certified.

Certification of candidates is the Civil Service Department’s job as it relates to promotions. The Appointing Authority selects candidates from those that are certified by the Personnel Director (Civil Service Department).

So, if “the number to be certified shall not be less than three” means three or 103, then the Personnel Director can certify everyone who passed the test and then it is up to the Appointing Authority to make promotions in a constitutional manner (on the basis of merit, efficiency, fitness, and length of service). The Overactive Re-Imagination Squad decided that Appointing Authorities throughout the City would certainly be able to select candidates for promotion in a constitutional manner. They remained undeterred by the clear evidence that Chief Harrison’s administration did not even try to make constitutional promotions. Harrison’s administration just picked whoever they wanted for reasons absolutely nobody could explain (at least not under oath at the Civil Service evidentiary hearing).

CAO Policy Memorandum 143(R) was introduced because they definitely were not going to return to the banded lists that were put into place to deter discrimination, favoritism, nepotism, and the other ism’s. In addition to the Blind Faith in our Politically Elected or Appointed Leaders Unit, the Business Council of New Orleans, led by Coleman D. Ridley, Jr., a native of Newport News, Virginia, also thought they knew best how to make promotions within the New Orleans Police Department. Why the Business Council is interested in how the NOPD makes promotions is beyond me. I really don’t understand why the CAO wants to micromanage promotions in the NOPD.

My new position on the list is unacceptable. What can I do?

When Walter Powers, Claude Schlesinger, and I met with Chief Ferguson, the Deputy Chiefs, the Chief of Staff, and the City Attorneys advising them on this topic, Chief Ferguson stated that he would entertain anyone who believes that their new ranking was the result of some type of mistake. So, that could be the first thing to do. You can contact the Superintendent’s Office and tell them that you think there has been a mistake and you would like to discuss it with whoever is handling those complaints.

Once promotions are made, you may be able to use Civil Service Rule VI, Sec. 6.1 to challenge being skipped for someone else. However, application of that rule may or may not lead to a better result. Use of Rule VI, Sec. 6.1 is not an option until after promotion have actually been made from the list and you have actually been passed over.

At the meeting mentioned above a couple of weeks ago, Chief Ferguson stated in no uncertain terms that he was committed to transparency. He said that the NOPD would provide me with whatever documentation I wanted pending an official request. Well, I submitted an official request for all of the Promotion Committee documentation a couple of days ago. I received a reply to that request from the Chief of Staff who indicated that he was in the process of assembling the requested documentation. Once I have all that documentation, it should be clearer what process was used to move some candidates 20-30 positions from their ranking on the Civil Service list to make a new order to the Sergeants List.

Once all the requested information is received, we will be in a better position to determine what, if anything, can be done about how the list was shaken up.

If you can, shoot me an email that says what your new place is on the Sergeants List. I will be keeping a close eye on everything that transpires with regard to the promotions to Police Sergeant.

No Win Situations in New Orleans

Save the below video for later. As you can see, the video is marked as age restricted and can only be viewed on YouTube where you can assert that you are old enough to watch. The video is a news report by WWL Investigative Reporter Mike Perlstein. You have probably already seen it. If you haven’t seen it, be sure to watch it.

I pride myself on staying in touch with the rank and file officers of the New Orleans Police Department. I talk to officers every single day in one way or another. 90% of NOPD officers are members of the Fraternal Order of Police. So, I know that I will be addressing FOP members, no matter who I am speaking to.

Recently, I happened to be at a district station at roll call time. As I stated above, I try to talk to officers at every opportunity. Since roll call was just getting started, I joined the group of officers getting ready to start their tour of duty. As usual, I popped in, made sure everyone knew who I was, and asked if there was anything in particular they wanted to talk about. That particular day, they were concerned about recent revisions to the NOPD policy on searches and seizures. I bring this up as a good example of the type of “no win situation” I referred to in Mike Perlstein’s story.

In particular, officers were worried about the addition of paragraph 58 of Chapter 1.2.4 on Search and Seizure. This addition is found in the section addressing strip searches. One of the officers had recently attended in service training and had been told that the new policy makes any search that touches the skin of the person searched a strip search. Strip searches are a no-win situation at NOPD.

First, I would refer to the definition of Strip Search found in the policy. A Strip Search is defined as “any search of a person that includes the remove all or rearrangement of some or all clothing to permit visual inspection of the exterior of the suspect’s groin/genital area, buttocks, female breasts, or undergarments covering these areas.” The intent to conduct a visual inspection seems to be a necessary element of a strip search, but my personal experience is that no visual inspection is necessary in any form, Searches where officers have intentionally avoided any possibility of a visual inspection have been declared strip searches.

Paragraph 62 of the policy outlines the steps that officers have to take in order to conduct a strip search. As you can see, there are numerous steps that would be time consuming. That is fine because strip searches are rare and officers should have to dot every i and cross every t when conducting a strip search. One way or another, conducting strip searches regularly is not practical or necessary. Paragraph 58 of the policy potentially changes all that.

Searches are a daily occurrence for police officers. Policy requires that every arrested subject be searched. Every time someone rides in a police car, they must be searched before they are put in the car. On June 20, 20215, Officer Daryle Holloway was killed in the line of duty by an arrested subject who had managed to get a gun into the back of the police car. In spite of being handcuffed behind his back, Officer Holloway’s assailant managed to shoot and kill him. Searching arrested subjects is serious business that is absolutely necessary for everyone’s safety. Paragraph 58 places all of that in jeopardy.

Under the section heading of Strip Search, paragraph 58 states that “Unless the requirements for a strip search outlined below are met (paragraph 62), officer may not: (a) reach inside outer clothing and touch skin or underwear, especially in the groin, genital, and buttock/anal region; (b) manipulate items inside outer clothing which may be in direct contact with skin especially in the groin, genital, and buttock/anal region to recover an item or move them into open view; or (c) require someone to remove or rearrange some or all clothing to permit visual inspection of a person’s groin/genital area, buttocks, female breasts, or undergarments covering those areas.”

First, I think the policy already covered part c of paragraph 58. The other two parts, a and b above, make routine searches against policy. These are the types of searches that officers conduct every day. The searches that are required by policy. There is simply no way that officers will be able to comply with the requirements of paragraph 62 every time they have to conduct a search subsequent to arrest before placing an arrested subject in a car for transport. Sometimes arrested subjects have to be placed in the car more than once. For example, if an arrested subject has to be taken to the hospital before going to the lock up, that arrested subject would have to be searched before the trip to the hospital and then again before the trip to the lockup. The waistband is one of the first places officers are taught to search. That however would require officers to “reach inside outer clothing and touch skin or underwear…” So, to conduct routine searches before placing an arrested subject in the rear of a police car, officers have to (1) obtain written authorization from his or her supervisor; (2) be properly trained in strip searches; (3) have and use personal protective equipment; (4) perform the search under conditions that provide privacy from all but those authorized to conduct the search – wait, what? The arrested subject has to be transported to a private area before being able to conduct the search that allows them to be transported in a police car? If that isn’t a no-win situation, I don’t know what one is.

Of course, the policy won’t be enforced unless there is some other reason to enforce it. If there is a complaint or someone happens to watch the body worn video, then it will become an issue. Otherwise, officers will have to continue conducting searches. If they stop conducting searches, officers will get hurt. I will again refer to Officer Holloway. It will happen again.

At the roll call I attended, I told officers to do what they had to do to get home safely at the end of the day. Officers should not have to wonder whether or not they can do something that is designed to protect them. The changes to this policy create more confusion and uncertainty. The searches described in paragraph 58 do not necessarily meet the definition of a strip search. However, they are found in the strip search section. When do these instructions apply? Beats me. What I do know is that the number 1 rule is to make it home safely. Make it home safely. If you get dinged for making it home safely, I will be there with you to fight the good fight. The FOP will also be there with you to fight the good fight.

FOP Legal Plan 2020

We visit every NOPD Academy class and explain to them, to the best of our ability subject to time restraints, why the FOP’s Legal Defense Plan is not only necessary for today’s law enforcement professionals, but the best possible legal plan available. There are other legal plans that offer legal services, but none of those are specifically geared to law enforcement officers like the FOP’s Legal Defense Plan is. Furthermore, I can give you all a run down of the legal services I provided to FOP members in Louisiana, but I cannot speak for anyone else. In addition, my practice involves representing police officers. That is it. 100% of my legal practice is representing FOP members.

Being able to devote my entire practice to representing FOP members is a benefit to FOP members for a number of reasons. First of all, I am generally available on short notice. If I am not available for some reason, I can get things rescheduled. Devoting my entire practice to representing FOP members also allows me to be, and remain, well-versed in issues facing today’s law enforcement professionals. I do not know any other attorneys in Louisiana who can say they only represent police officers.

In 2020, I represented more than 400 individual FOP members in the following capacitates:

Accident Review Board Hearings – 38
Civil Service Appeal Hearings – 8
Pre-Disciplinary Hearings/Pre-Disposition Conferences – 133
Civil Service Extension Request Hearings – 101
NOPD Rule IX Hearings – 10
Interviews/Statements – 184

I responded personally to 6 officer-involved shooting scenes and represented 20 police officers involved in officer-involved shootings in Louisiana, including interviews and statements with investigators. Most of these were in New Orleans, but there were several in other jurisdictions in southwest Louisiana.

2020 has been an odd year. I know I am not saying anything people do not already know. There were fewer appeals to the 4th Circuit Court of Appeals. However, I am currently awaiting decisions from the 4th Circuit on the emergency rate of pay and one Civil Service appeal where the appeal was granted in part and denied in part by the Civil Service Commission (I won 45 of 80 suspension days and had to appeal for the other 35).

The FOP’s Legal Defense Plan is the only plan to offer the Salary Reimbursement Option. If you are represented by an FOP attorney and, after consulting with your FOP attorney you come to the conclusion that there is no point in appealing discipline, the FOP will pay the officer for up to 5 suspension days if they choose not to appeal. I assisted 27 NOPD officers with the Salary Reimbursement Option.

In New Orleans, the Crescent City Lodge provides members with free notary services. I provided notary services to 46 NOPD officers over the course of 2020. I also settled 16 Civil Service appeals with the City in lieu of proceeding with an appeal hearing. Those are 16 disciplinary actions rescinded or reduced for my clients.

I also had the opportunity to assist Louisiana FOP President Darrell Basco with his work on various committees in the Louisiana Legislature. I was called upon by the police reform committee to testify at the State Capitol in Baton Rouge about Louisiana’s Police Officer’s Bill of Rights.

Hopefully 2021 will look more like 2019 than 2020. One thing that is certain — The FOP Legal Defense Plan will be there for you when you need it. I will be there when you need me. I always have people tell me they don’t want to bother me with something minor or they don’t want to waste my time.

Nothing is a waste of my time. Nothing is unimportant. Don’t hesitate to call. It does not matter if you are an accused or a witness officer. You can call if you just have a question. I am here to help as much as I can. Furthermore, the FOP will be there for you.

Please note that my phone service now silences phone calls from numbers not in my contact book. I save phone numbers regularly. So, if we spoke on the phone previously, then I probably saved the number and that won’t be an issue. However, if you call and it goes to voicemail, please leave a message or send a text. I am not dodging anyone, but I can’t call anyone back if I don’t know who is calling.

I am looking forward to continuing to serve FOP members in 2021 and beyond. As I have said numerous times, I consider myself lucky to be able to be there for law enforcement officers and blessed to have the FOP Legal Defense Plan to use for that purpose.

Donovan Livaccari

It is always best to call me on my cell phone first.

Safer at Home Video from LSU NCBRT

Below is a new video from the National Center for Biomedical Research and Training at L.S.U. The video provides some tips for people who work on the frontlines of the pandemic on how to make home a little safer for their families.

COVID-19 Roll Call Training from LSU NCBRT Academy of Counter-Terrorist Education

The below video was received from the LSU NCBRT Academy of Counter-Terrorist

Education. It is intended for use as roll call training for law enforcement relative to COVID-19.

#LAFOP Endorses @CynthiaHMorrell for #NOLA City Council. @lafop @fopno #FOP #FOPNO

FOP ENDORSES CYNTHIA HEDGE-MORRELL

FOR NEW ORLEANS CITY COUNCIL 

At its winter meeting on Saturday, January 18, 2014, the Louisiana Fraternal Order of Police Board of Directors voted to endorse Councilmember Cynthia Hedge-Morrell for Councilmember-At-Large Division 2 in the 2014 election for New Orleans City Council.

With two sons serving on the New Orleans Police Department, Councilmember Hedge-Morrell is keenly aware of the issues facing law enforcement in New Orleans.

Councilmember Hedge-Morrell has proven throughout her years of service that she is willing to take bold steps to improve both the safety of New Orleanians and those who visit New Orleans and the lives of New Orleans Police Officers. We expect that her dedication to New Orleans, the region, and the State of Louisiana will continue once re-elected.

The Fraternal Order of Police encourages everyone to vote for Cynthia-Hedge-
Morrell, Councilmember-At-Large, Division 2, Saturday, February 1, 2014.

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