NOPD Update 4/6/21

The following went out via NOPDALL on April 6, 2021:

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Subject: NOPD Short Forms 

Members of the Department,

IAPro is now able to generate NOPD Short Forms. Attached is a “Request for Public Integrity Bureau Short Form” (NOPD Form 355), please complete the form in its entirety and send a scanned copy to pibshortforms@nola.gov. The request will be completed within 48 hours after receiving the emailed request (excluding weekends and holidays).

*Any incomplete forms will delay the request.

Feel free to contact me with any question or concern.

Sincerely,

Sergeant Omar Garcia

Public Integrity Bureau

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Form 355 can be downloaded here.

I recommend checking you short form periodically to make sure you are aware of what it says and to make sure it is accurate. You certainly need to check your short form if you are considering leaving NOPD. The last thing you need is to inadvertently leave while “under investigation.” It happens more often than you imagine.

Call me if you have any questions about this or if you have any questions about your short form – sometimes they aren’t the easiest to interpret.

Police Reform Legislation

Legislators on the State and Federal levels clearly have qualified immunity in their crosshairs. Click here for info on Federal legislation from National FOP President Pat Yoes. There are other things the reformers are gunning for, but weakening qualified immunity for law enforcement officers seems to be a major goal. It is important to recognize that the “reforms” to qualified immunity will still apply to all other public officers as it has always been. In other words, the Legislators proposing and voting on this legislation will still be able to benefit from from qualified immunity, as will all other public officers exercising the discretionary functions of their office.

I would like to start by saying that Legislators are gunning for the wrong thing. Qualified immunity only relates to civil lawsuits alleging Constitutional violations. Qualified immunity does not apply to criminal matters.

In Louisiana, lawmakers have proposed that qualified immunity would not be available to law enforcement officers for any wrongful death or injury resulting from a use of force. In those cases, the trier of fact would have to decide if the use of force leading to the lawsuit was unreasonable. If the judge decides it is unreasonable, then the lawsuit would be allowed to continue.

Contrast that with the current way qualified immunity is applied. There is a two-prong test to determine if a public officer is entitled to qualified immunity: 1) Did the public officer’s actions actually constitute a violation of the plaintiff’s Constitutional rights? 2) Was the public officer on notice that his actions constituted a violation of someone’s Constitutional rights? If the answer to both of those questions is yes, then qualified immunity does not apply. If the answer to either of those questions is no, then the lawsuit will be dismissed as to that public officer.

From the standpoint of law enforcement officers, the current application of qualified immunity serves to protect them from civil lawsuits in a profession that is dangerous and often leads to tense, rapidly evolving circumstances where the lives of law enforcement officers and civilians are in danger. A Tulane University Police Officer and Deputy Constable, Martinus Mitchum, was killed on February 26. 2021 when he intervened in a dispute over wearing a mask at a basketball game. Let that sink in. The shooter wanted to be allowed in the gym during a basketball game and was refused entry because he was not wearing a mask. When the interaction became contentious, Officer Mitchum stepped in to de-escalate the situation. In spite of Officer Mitchum’s efforts, the individual was so interested in not wearing a mask at the basketball game that he pulled a gun and shot and killed Officer Mitchum. It is a dangerous profession.

Other reform legislation includes bans in choke holds, bans on no-knock warrant service, and restrictions on the time of day warrants can be served. I don’t object to those efforts except to say that when someone’s life is in legitimate peril, all options should be on the table. Actually, this legislative efforts are much more reasonable than attacks on qualified immunity.

With regard to qualified immunity, I will point out that I am unaware of any insurance product that would provide liability insurance for law enforcement officers. Elimination of qualified immunity, even under restricted circumstances, would expose law enforcement officers to the same type of civil exposure that doctors are exposed to. As we all know, one reason we pay so much to see the doctor is because the doctor has to pay expensive insurance premiums. The problem is that I am unaware of any insurance product available to law enforcement officers and law enforcement salaries have historically been low.

Without qualified immunity, I think I would have to question the sanity of anyone choosing to work in law enforcement – at least a law enforcement agency without qualified immunity. In his monthly podcast, noted public safety attorney Will Aitchison said that taking a law enforcement job without qualified immunity should be the equivalent of failing the psych exam.

Legislators should be focusing on banning chokeholds. NOPD has banned chokeholds for years and it has had a good result. Changing qualified immunity will have unforeseen consequences that will damage law enforcement forever. Law enforcement officers are not the 1%. Law enforcement officers are blue collar workers who live next door to you. Their kids go to school with your kids. They are much more likely to be able to relate with you than with the 1%. In addition, law enforcement officers are not the ones setting policy within police departments. Those policies are being set and implemented by elected officials and people appointed by those elected officials. When the Dept. of Justice sought to implement a consent decree in New Orleans, the consent decree did not contain mandates for each individual police officer. The consent decree contains mandates for the administration. That is because the administration is responsible for how law enforcement officers perform their jobs.

I am not sure changing qualified immunity for law enforcement officers only will be Constitutional. We are entitled to equal treatment under the law. One way or another, legislators need to keep their eye on the ball and prop up law enforcement so that the profession can best serve their respective communities. Legislators should NOT be taking actions that will forever damage law enforcement as a profession.

All law enforcement officers and those individuals supporting law enforcement should contact their elected officials and let them know that you do not support elimination of qualified immunity for law enforcement officers in any way. Emails, letters, and/or phone calls can be used to serve that purpose. Don’t be shy. This is extremely important.

November 16, 2020 Meeting of the New Orleans Civil Service Commission – Unpaid Leave Days

On Monday, November 16, 2020 at 11:30 a.m., the New Orleans Civil Service Commission will hold its monthly meeting. Because of COVID-19 and the associated restrictions, the meeting will be held on Zoom and by teleconference for those who do not have access to a computer.

As I mentioned at the latest Fraternal Order of Police meeting, it would be helpful to have as many comment cards submitted as possible. To be safe, I would recommend emailing the comment card by the end of November 15, 2020.

To join the meeting from PC, Mac, Linux, iOS, or Android, click here.

To join the meeting by telephone, call 1-213-787-0529 and enter conference code 888712.

Mayor LaToya Cantrell has announced that every city employee is required to take one unpaid leave day for the last 6 pay periods of 2020. Mayor Cantrell has also announced her intention to require every city employee, including public safety agencies such as NOPD and NOFD to take one unpaid leave day for each of the 26 pay periods in 2021.

New Orleans Civil Service Rule XII, Sec. 9.1(b) requires that the Mayor get authorization from the New Orleans Civil Service Commission in order to make employees take more than 12 unpaid leave days in any consecutive 12 month period. Approval by the Civil Service Commission requires the Mayor to demonstrate extraordinary circumstances.

The Civil Service Commission will take comments from those interested in commenting. I have drafted three general comment cards. If you choose to use one of my comment cards, you will still be required to fill in the blanks on page 1. I have filled in the blanks that are common for everyone, but you have to put your own name on it.

Click here to download Comment Card 1. Comment Card 1 contains a general statement about how the Mayor’s request far exceeds the 12 unpaid furlough days contemplated by the rule.

Click here to download Comment Card 2. Comment Card 2 contains statements more specific to NOPD.

Click here to download Comment Card 3. Comment Card 3 contains statements about exempting public safety, NOPD, and NOFD.

Click here to download a blank comment card with the common information already typed in.

Click here to download the blank comment card to fill it in however you would like.

Once you have decided on one of the pre-written comment cards or have completed a comment card yourself, you need to email it to CSNO@NOLA.GOV. If you do not email the comment card in, it will not be read.

You can download the meeting’s agenda here.

Please take the time to submit a comment card. Also, pass this article and any attachments on to your fellow employees or anyone who would be interested in sending in a comment card.

NOPD Furloughs

By now, everyone is aware that there will be mandatory furloughs of personnel through the end of the year. There are 6 pay cycles starting on October 11 and ending on January 2, 2020. Everyone will be required take one unpaid furlough day in addition to your regular AWP days per 2-week pay cycle. There should be no need to take any more than 6 unpaid furlough days before the end of the year.

I was asked if officers were forbidden from scheduling their furlough day to coincide with AWP days or annual leave days. I was told there is no Department regulation or directive that would not allow taking annual the day before and the day after your scheduled furlough day. If you are AWP on Wednesday and Thursday, nothing prevents your furlough day from being Friday or Tuesday.

However, it is possible that your commander could implement a district directive to that effect. Or maybe your supervisors can’t make the schedule work like that, but it isn’t because of some department-wide directive.

There have been rumors about pay cuts, forced retirements, and all kinds of other unpleasant personnel actions. I am sure that all of those things are on the table. There are somethings the City can’t control. For example, your pension is a state pension. So, that money cannot be used elsewhere. That being said, your pension is the only benefit that will be impacted adversely by the furlough days. By the end of the year, you will be 6 days behind. Otherwise, your benefits will not be affected.

There was a special meeting of the New Orleans Civil Service Commission today (10/8/20). The only item on the agenda was the City’s request to waive the time delays found in Rule XII, Section 9. It does not impact the actual furlough of employees, just how quickly they can implement the furloughs. To the surprise of absolutely nobody, the Commission voted to give the City Administration the waivers they were asking for.

I, on behalf of the FOP, have been working with Aaron Mischler of the New Orleans Firefighter’s Union to find a solution to the mandatory furloughs. Right now, this is looking like a promising exercise. However, there are no guarantees and it isn’t done until its done.

The FOP is working hard on your behalf and we will not stop. There are no guarantees, except that the FOP will be working hard on your behalf.

NOPD Inspection

On August 18, 2020, N.O.P.D. Sergeant Kevin Seuzeneau sent an NOPDALL email reminding everyone about N.O.P.D. Rule 2, Moral Conduct, Paragraph 1, Adherence to Law. Why would he do that? Doesn’t everyone already know that police officers have to comply with the law? Sure we do.

Sgt. Seuzeneau also reminds everyone that there will be a department-wide inspection coming soon. He follows that up with some municipal traffic ordinances police officers in New Orleans are also familiar with. There are probably plenty of officers who have never experienced a department-wide inspection while employed by NOPD, but this is a good time to prepare.

Sgt. Seuzeneau included the municipal ordinances on driver’s licenses, vehicle registration, license plates, etc. These ordinances are included because these are the things they will be checking. You will likely be asked to produce your driver’s license. They will also check to make sure those licenses are valid. Is your driver’s license suspended because of a dispute with the State of Louisiana over taxes? That is a sustained violation. No license on person? Sustained.

They will also check the cars out in the parking lot. The cars should have license plates affixed to the rear number – not on the rear deck. The registration should be readily available. The brake tag should be valid and there should be valid insurance.

All of these potentially sustained violations are avoidable. Take Sgt. Seuzeneau’s advice and use his email as a checklist. It is not worth the hassle of being sustained for R2P1. If it happens, feel free to call me.

Update to Emergency Rate of Pay May 27, 2020

Listen to my discussion with Tommy Tucker on WWL radio this morning regarding the Emergency Rate of Pay:

Listen to Aaron MIschler’s discussion with Tommy Tucker on WWL radio this morning regarding the Emergency Rate of Pay. Aaron Mischler is President of IAFF Local 632 – the Firefighter’s Union. Aaron has been a good partner in seeking the Emergency Rate of Pay.

New Orleans Emergency Rate of Pay

On March 11, 2020, Governor John Bel Edwards declared and a Public Health Emergency for the State of Louisiana as it relates to COVID-19. Also, on March 11, 2020, pursuant to a filing in Civil District Court for the Parish of Orleans, State of Louisiana, Mayor LaToya Cantrell declared a State of Emergency for the City of New Orleans. See Mayoral Proclamation of a State of Emergency due to COVID-19.

Mayor Cantrell’s State of Emergency proclamation directs the Superintendent of Police to take command and control over all police officers in the City of New Orleans pursuant to La. R.S. 40:1387 along with all authority typically given by such a proclamation. As a result of the State of Emergency, some city employees were placed on civil leave and told to go home. Another group of city employees was told to go home and perform their regular job duties from home. Finally, a third group of employees was told they had to report to work at their regular place of work.

New Orleans Civil Service Rule IV, Sec. 11.1 states as follows:

If it becomes necessary for an employee (exempt and non-exempt) to work on any day when the Mayor of New Orleans has declared an official emergency and has requested that only essential employees report to work, the appointing authority should adjust the employee’s work schedule to allow another day(s) off during that work period as a substitution. If such a substitution is not possible, then, for working at such time, the employees shall be paid the following:
(a) All non-exempt employees shall be paid at a rate of one and one-half (1½) times their normal rate for all hours worked.
(b) All exempt employees shall be paid at a rate of one and one-half (1½) times their normal rate of pay. Normal rate of pay for exempt employees is defined as the weekly salary.
(c) In situations where the emergency lasts for less than a normal seven day work week, then exempt employees shall be paid at a rate of one and one-half (1½) times their normal hourly rate for all hours worked subject to the maximum allowed for a regular scheduled work day in keeping with Rule I, Number 40. Under no circumstances shall an exempt employee receive pay from this section that exceeds more than one and one-half times his normal weekly salary for an emergency event.
In all cases, this pay is to remain in effect until the Mayor announces the state of emergency has ended or an announcement is made that City offices are open for business and employees are to report to work, whichever comes first.
(d) When the Mayor of New Orleans has declared an official emergency on a day in which city offices remain open for business, exempt and non-exempt essential employees (except for highly compensated employees as defined by the FLSA) who are assigned to perform emergency/disaster field operations duties may receive five (5) percent over their normal rate of pay while engaged in such duties during a declared state of emergency. In cases where the emergency declaration extends beyond four (4) weeks, a request for extension and reasons therefore must be submitted by the Chief Administrative Office or other executive authority to the Civil Service Commission for approval along with an anticipated end date and a list of the essential employees who will remain in the emergency assignment. (amended September 25, 2017, adopted by the Council October 26, 2017)

(Section 11.1 adopted March 28, 1996, ratified by the Council April 18, 1996, amended May 15, 2006, adopted by the Council May 25, 2006, effective June 1, 2006, amended April 28, 2014, adopted by the Council June 2014, effective April 28, 2014)

Since there is a declared State of Emergency and some employees have been required to report to work and some employees were instructed not to report for work and were placed on civil leave, New Orleans Civil Service Commission Rule IV, Sec. 11.1 comes becomes effective as it relates to the pay for those employees required to report for work at their regular duty station.

There is no definition of “essential employees” or “non-essential employees.” However, based on Civil Service Rule IV, Sec. 11.1, we can determine who certainly constitutes an “essential employee” and who certainly constitutes a “non-essential employee.”

Reporting to work implies both the performance of job duties and the location those job duties are performed. Essential employees are those employees who were instructed to report to work at the employee’s regular place of work or another location as designated by the employee’s appointing authority as required to accomplish the employee’s job. Non-essential employees are those employees who are not required to report to any particular location or perform any job duties. Non-essential employees are those employees being carried under civil leave, of who were initially carried under civil leave at the beginning of the state of emergency. There is a third group of employees in the state of emergency related to COVID-19 — those who are working from home.

The emergency rate of pay was introduced to encourage employees to report to work as needed under emergency conditions. In other words, some employees have to come to work in spite of conditions which make reporting to work more dangerous than normal. In addition to merely encouraging employees to report to work as needed, the emergency rate of pay works to fairly compensate those employees who, because their jobs do not allow them to work from home, must expose themselves to the dangerous circumstances forming the basis of the state of emergency.

There is no question that the employees of the NOPD, NOFD, and NOEMS are essential employees. These employees are required to expose themselves to a potentially deadly virus by the very nature of their job. No matter what precautions are taken, our police officers, firefighters, and EMS personnel are required to be exposed to the threat imposed by SARS-CoV-2. In addition to our first responders, any other employee who is required to report to work at their normal place of assignment is an essential employee for the purposes of this declared State of Emergency.

I have heard several reasons why police officers should not get an emergency rate of pay:

Excuse #1: The City has not told essential employees to report to work while telling non-essential employees to stay home. This is not true for the reasons discussed above. There are employees who have been required by the city to physically report to the employee’s regular place of work to perform the employee’s job. There is also a group of employees who were either not required to physically report to the employee’s regular place to work or the employee was not required to perform any work at all while still being paid.

Excuse #2: This is a state of emergency that exists throughout the United States. Police officers around the country are required to work under similar circumstances. FEMA won’t be able to reimburse everyone. Article X, Sec. 10 of the Louisiana Constitution states that civil service rules have the force and effect of law. Therefore, New Orleans Civil Service Rule IV, Sec. 11.1 has the force and effect of law. Civil Service Rule IV, Sec. 11.1 does not state that essential employees are to be paid an emergency rate of pay only if the city is going to be reimbursed for the expenditure.

Excuse #3: Police officers already get extra pay from the State every month. State Supplemental Pay is not emergency or hazard pay. State Supplemental Pay is intended to supplement inadequate salaries offered to law enforcement officers by municipalities or parishes.

First responders exist in the same world as the rest of us. They have to worry about getting sick and bringing the virus into their homes with their families. However, they don’t have the option of working from home like I do, or not having to work at all and relying on civil leave. Finally, they still have to worry about things like getting shot while trying to protect people like me and you — which has happened twice in the last week to three officers.

Civil Service Rule IV, Sec. 11.1, which has the force and effect of law, states that during a declared state of emergency where some city employees are required to report to work in the field at a place determined by the city which is not home while other employees are told to stay home and are not expected to perform any work while being carried civil leave or are allowed to work at home requires that exempt and non-exempt employees who are required to report to work in the field at a place determined by the city must be paid time and one-half (1.5x).

I understand that the COVID-19 emergency has created a great deal of pressure on the city. However, that is no reason not to give city employees what is owed to them by state law. The color of the trip sheet doesn’t matter. Whether or not it is reimbursed doesn’t matter. Some employees are entitled to be paid 1.5x. If the city does not pay its employees what they are owed in this emergency, who is to say they will report to work as expected in the next emergency.

UPDATE: I have already written a letter to the Director of Personnel, Lisa Hudson, at Civil Service. I have asked that the matter be brought before the Civil Service Commission when they conduct a regular meeting. There have been a number of comments referencing a possible lawsuit. However, the Civil Service Commission has sole jurisdiction. So, it will be necessary to bring this issue before the Civil Service Commission before it can go to any court.

 

A Good Time to Prepare

www.nola.com/entertainment_life/home_garden/article_a3a19316-77c1-11ea-920c-7f8ea57235d3.html

I was reading the above article and thought this could be a good opportunity to remind members of the FOP Crescent City Lodge that the Crescent City Lodge provides its members with 4 hours of legal services for any family law needs and 2 hours of legal services for anything else. I can usually get a Last Will and Testament and/or a Living Will done for Crescent City Lodge members with no out of pocket expense.

Also, the NOPD continues to conduct internal investigations. I have been working with officers throughout this current situation. The FOP’s Legal Plan will continue to provide legal services as usual. Feel free to call about statements, whether you are the accused officer or not, extension hearings, or any other questions you may have about disciplinary investigations.

Donovan

NOPD Only – Supplies Poll

In an effort to gauge the supplies needed by members of FOP Crescent City Lodge #2, I would appreciate it if NOPD personnel could answer the following non-scientific poll questions. Please share with NOPD personnel and encourage NOPD personnel to answer the 3 poll questions.

FOP Crescent City Lodge #2 Monthly Newsletter Email Giveaway

Each month, about a week before the monthly FOP meeting, the Crescent City Lodge sends its monthly newsletter to members via email. Starting in May 2020, the Crescent City Lodge will begin a random draw giveaway that will work like this:

In May, the Crescent City Lodge will randomly choose one email address from the email list used to distribute the monthly newsletter. If the person with the selected email address replies to the newsletter email from the selected email address, that member will win $50 cash.

If nobody responds from the selected email address by the time the Crescent City Lodge sends out the June newsletter email, then a new email address will be chosen and published in the monthly newsletter and that person will become the potential winner of $100. Likewise, if the email address selected for the June newsletter email does not respond from the selected email address by the time the July newsletter is sent out, then a new email address will be selected and that person could win $150. Once the pot is claimed, it will go back to $50.

The important thing is to make sure the FOP Crescent City Lodge #2 has your correct email address. If the Crescent City Lodge does not have your correct email address, then there will be no way your email address can be selected.

If you are not regularly receiving the Crescent City Lodge’s monthly newsletter by email, that means we do not have an accurate email address for you.

If you receive the Crescent City Lodge’s monthly newsletter at your @nola.gov email address, please send the Crescent City Lodge your personal email address. There are inherent problems with using your @nola.gov email address for anything that is not work-related. As I have mentioned numerous times, you have no expectation of privacy with regard to anything in your @nola.gov email inbox (or outbox). The City and Department have specifically told you there is no right to privacy with your @nola.gov email address. In addition, there is a policy that states that you are only allowed to use your @nola.gov email address for work-related communication. As the attorney for a lot of NOPD officers, I am advising you that it is unwise to use your @nola.gov email address for anything other than work-related communication. If the NOPD wanted to forward all of the emails in your @nola.gov email address to the FBI, they would be well within their rights to do so. You can get a free email address from any number of places. Google’s Gmail is available for free. Microsoft has @outlook.com email addresses that are available for free. You can get @yahoo.com email addresses for free. ProtonMail is available for free and has end-to-end encryption. The bottom line is if you are using your @nola.gov email address for all of your email communication, you are putting yourself at risk unnecessarily when there are cost-free alternatives available.

If you need to update your email address with the Crescent City Lodge, you can email Jim Gallagher at jim6411 at fopno.info. You can send me updated email addresses also and I will send it where it needs to go. You can also update your address, phone number, beneficiary, or other personal information using the same method.

You could be missing out if the Crescent City Lodge does not have your correct email address. Beginning in May, all you have to do is open the monthly newsletter email and check the selected email address. If the selected email address belongs to you, all you have to do is reply to the monthly newsletter email address and you could win between $50 and $600. If you have legal questions about privacy and email, feel free to give me a call. If you have any questions about the email address giveaway, you are welcome to call me or Jim Gallagher.

Please note: The FOP Crescent City Lodge cannot be held responsible if you do not receive the monthly newsletter email for some reason. You may want to consider whitelisting jim6411 at fopno.info if your email provider supports the maintenance of a whitelist. If you are not receiving the monthly newsletter email about 5 days before the scheduled meeting date, contact us and we can try to fix the problem.

Don’t miss out! Update your email address today! Good luck! Proud to be FOP!