UPDATE 3 (8/1/19) There is still some discussion of pay for time worked during the State of Emergency for Hurricane Barry. Here is my best interpretation of the circumstances as they exist today:
UPDATE 3 (8/1/19) There is still some discussion of pay for time worked during the State of Emergency for Hurricane Barry. Here is my best interpretation of the circumstances as they exist today:
There has been a bit of talk lately about “Astroturfing.” For those of you who aren’t familiar with the idea of astroturfing, it is when advocates for a certain issue or matter solicit people who aren’t really interested in the issue to appear and give the appearance that there is more support for or opposition the issue at hand. It recently came to light with regard to Entergy’s use of paid actors to appear before the New Orleans City Council to advocate for a new Entergy power plant. The article linked here is about the City Council investigating the use of paid actors by Entergy.
You may be asking yourself what this has to do with the New Orleans Civil Service Commission’s recent decision about whether the New Orleans Fire Department complied with the Civil Service Rules and the Louisiana Constitution. This decision by the Civil Service Commission was in response to the NOFD’s “appeal” of the New Orleans Personnel Director’s decision in appeals by NOFD employees who took the Captain’s test and felt as though they had been improperly passed over for promotion pursuant to Civil Service Rule VI, Sec. 6.1. The Civil Service Commission couldn’t actually act in an appellate capacity, so they conducted an investigation of the NOFD promotions and whether those promotions complied with Civil Service Rules and the Louisiana Constitution. So, the Civil Service Commission’s decision did not overrule the Personnel Director’s decision.
The Personnel Director’s decision held that the NOFD botched promotions in almost every conceivable way. She held that NOFD violated Civil Service Rule VI, Sec. 2.1, 2.3, and 3.1. The Personnel Director also held that NOFD violated the EEOC’s Uniform Guidelines on Employee Selection Procedures. The Personnel Director went on to recommend that some of the people passed over should be promoted and that the rules should be modified to prevent the types of overreaches by the NOFD.
The Civil Service Commission tried their best to decide that the NOFD did nothing wrong. However, given the facts, that was impossible. So, the Civil Service Commission’s decision held that NOFD complied with the Civil Service Rules but they did not comply with the requirements of Louisiana Constitution Art. X, Sec. 7, which requires that promotions be made after consideration of merit, efficiency, fitness, and length of service, as ascertained by examination, which should be competitive. They concluded that since so much time passed between filing appeals and the decisions that followed that there wasn’t much they could do except pledge to put safeguards in place to prevent this from happening again.
I know there is still no connection to astroturfing. Here are my thoughts on that: The Civil Service Commission goes out of its way to cite a number of individuals and groups who testified in support of the Great Place to Work Initiative (GPTWI) when it was being discussed before being passed. For those who don’t know, GPTWI is where we lost some protections like the rule of 3 as it pertains to promotions. I suggest that GPTWI is where we lost competitive promotions in the City of New Orleans. It is also where many city employees lost all faith in the overall fairness and transparency of the promotional process. Anyway, the decision cites Andy Kopplin, who was CAO at the time, Dr. Charlotte Parent, the Director of the Department of Health at the time, as well as NOFD Superintendent Timothy McConnell, and other Mayoral appointees. The decision also cites the Bureau of Governmental Research and Bright Moments — more cheerleaders for former Mayor Landrieu.
When the public comments on the GPTWI began, it was quickly obvious that the Civil Service Commission’s meeting room would be insufficient to hold the people who wanted to comment on the proposed rule changes. The Commission moved the meeting to the City Council Chambers to accommodate the larger-than-average audience. The first day in the City Council Chambers didn’t disappoint. The Chambers were full of employees and former employees who were lined up to speak out against the proposed rule changes. You could count the number of people speaking in favor of the GPTWI on one hand and those people clearly had an incentive to speak up — they held positions appointed by the Mayor.
It was pretty obvious that some phone calls were made after the poor showing on day 1 in the Chambers. On day 2, a few more people showed up to testify in favor of GPTWI. The Bureau of Governmental Research and a few other groups, or at least some leaders from those groups, came to testify in favor of the GPTWI.
This is just another form of astroturfing. The Mayor lined up people who were indebted to him in one fashion or another and solicited their support for an issue they had little to no real interest in. These folks testified before the Commission and gave media interviews in support of Mayor Landrieu’s initiative. My guess is that if the records have not already been destroyed that a public records request would probably reveal emails, phone calls, and meetings with the folks that appeared in favor of the initiative soliciting their appearance. The most disturbing part of all this is that after overwhelming comment in opposition to the GPTWI combined with the lackluster commitment shown by those who actually testified in favor of the rule changes, the Civil Service Commission still voted to enact the “reforms” with little, if any, discussion. The only difference between this type of astroturfing and the type of astroturfing used by Entergy is that Landrieu’s people only needed to give the appearance of influencing the Commissioners. The real influencing had already been done.
I expect to see a decision in the NOPD promotion appeals soon. It should be close to the NOFD decision. The only real way to remedy this problem is to change the Rules. A change reinstating the Rule of 3 and the banding system in use before GPTWI would restore some confidence in the promotional system in New Orleans. More importantly, it would protect our public servants, and the public, from the favoritism, discrimination, political interference, etc. that are the inevitable consequence of giving each appointing authority an unlimited amount of discretion.
The Fraternal Order of Police will be having two classroom training dates to help members of the NOPD prepare for the December 20, 2017 Sergeants Exam Assessment Center.
On December 9 and December 16, 2016, NOPD Commander Louie Dabdoub will be teaching his successful assessment center methodology on behalf of the FOP.
The December 9 class will be held at the NOPD Academy and will begin at 3:00 pm.
The December 16 class will be held at Lakeview Presbyterian Church, located at 5914 Canal Blvd. and will begin at 3:00 pm.
It is likely that both of these classes will last several hours.
Since the assessment center is just a few weeks ago, we decided to post a video of the introductory lecture here for officers to review. Download the two-page method steps here. You will need it.
Feel free to watch these videos as many times as you need. At the classroom sessions, Commander Dabdoub will apply these steps to actual scenarios and give feedback on answers given by the class.
Part 1 of 2
Part 2 of 2
The Thanksgiving season is upon us which leads to the biggest giving season of the year, Christmas. The FOP hopes that you will consider contributing to the FOP Family Fund.
The New Orleans FOP Family Fund is a function of the Louisiana FOP Foundation, a 501(c)(3) charitable foundation. The FOP Family Fund is mainly funded by donations made by active and retired NOPD employees through payroll/pension deduction. The FOP Family Fund also accepts donations from private citizens and businesses wishing to support law enforcement.
WHAT THE FOP FAMILY FUND DOES
The FOP Family Fund assists police officers who are facing severe financial difficulty because of an on-the-job injury or personal tragedy.
It is an unfortunate reality of police work that officers get injured on a regular basis. Injuries occur when officers are in car crashes, when perpetrators resist arrest, or a myriad of other ways. When these work-related injuries result in officers being out of work, their income becomes suddenly dependent on workers compensation law. Workers compensation law entitles an officer to 2/3 of his or her salary for temporary disability benefits. The maximum amount changes each year in September. For the period of September, 2017 through September, 2018, the maximum benefit is $653/wk. That represents approximately 5 hours of an officer’s 8 hour day. The officer’s remaining salary must be made up by using sick leave, if available. Overtime and police detail income are never figured into workers’ compensation, and that portion of salary is simply lost to the officer.
In addition to helping FOP members injured in the line of duty, the FOP Family Fund makes immediate assistance available to the families of NOPD officers killed in the line of duty.
Officers are the victims of natural disasters just like everyone else, from time to time, and when that happens, the FOP Family Fund stands ready to help. As an example, the FOP Family Fund (through the National FOP Foundation) provided over $1,000,000 in financial assistance to law enforcement officers throughout the State following Hurricanes Katrina and Rita.
In August, 2016, a dangerous tornado touched down in New Orleans and there was destructive flooding in southeast Louisiana. Several of our members suffered significant losses as a result of the tornadoes and flooding. The FOP Family Fund was able to provide assistance to those members, some of whom had lost their homes.
HOW TO CONTRIBUTE
The FOP Family Fund cannot survive without donations from our members and members of the public. Officers who are interested in donating to the FOP Family Fund, even if it is just $1 per pay period, can do so by visiting the NOPD Payroll office to sign up for payroll deduction. Anyone else who would like to make a tax deductible donation to the FOP Family Fund can mail a check to the FOP Family Fund, P. O. Box 24154, New Orleans, LA 70184.
The FOP Family Fund pays no administrative fees from direct contributions. Every penny of every donation goes to assist our local law enforcement officers..
Our federal tax ID number is 20-3484575.
The following is the entirety of my post regarding the NOLA.COM story entitled Sewerage & Water Board, not Civil Service, to blame for hiring delays.
The Civil Service Commission Chairman is right that the Sewerage & Water Board asked that the ability to hire people be delegated to the Sewerage & Water Board. At that time, I stood up and argued against that delegation on behalf of the Fraternal Order of Police. It was not that the request to delegate that authority directly impacted the police department, but that it adversely impacted the civil service system in general.
The Civil Service Commission Chairman correctly states that the Sewerage & Water Board has failed in hiring new people, not the Civil Service Department. What she fails to state is that in spite of these failures, the Civil Service Commission has not revoked that delegation of authority and continues to facilitate weakening Civil Service.
As the article points out, the Landrieu administration has attempted to “reform” the Civil Service Commission since 2010. The “reforms” they have instituted are antithetical to the purpose and goals of the Civil Service system. The Civil Service Commission has been complicit in these “reforms” since Mayor Landrieu began replacing Commissioners on the Civil Service Commission with people who are inclined to give the Mayor what he wanted in spite of the basic tenets of any merit-based system of employment.
As I stated above, I argued against delegating hiring authority to the Sewerage & Water Board. What they have done is reduce funding and staffing for the Civil Service Department and then complain about how the Civil Service Department is unable to meet the needs of various departments and then used this to justify decimating the Civil Service system in New Orleans. The other “reforms” the Landrieu administration and the Civil Service Commission have implemented are as much of a failure as the Sewerage & Water Board hiring delegation. Unfortunately, those failures do not result in street flooding or maybe they would have gotten some media attention. So, while we are on the subject of Civil Service, let’s talk about some other stuff.
The Mayor’s Great Place to Work Initiative, which was the greatest part of the “reforms” implemented by Landrieu, changed the way promotions were made. In effect, employees seeking a promotion take a test and all persons who pass the test are eligible to be promoted. Unfortunately, Louisiana Constitution Article X, Section 7 reads as follows:
“Permanent appointments and promotions in the classified state and city service shall be made only after certification by the appropriate department of civil service under a general system based upon merit, efficiency, fitness, and length of service, as ascertained by examination which, so far as practical, shall be competitive. The number 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. Each commission shall adopt rules for the method of certifying persons eligible for appointment, promotion, reemployment, and reinstatement and shall provide for appointments defined as emergency and temporary appointments if certification is not required.
Promotions under the Great Place to Work are not competitive and the test is not used to determine merit, efficiency, fitness, or length of service, as the Constitution requires. In addition to these recently acquired deficiencies, the Civil Service Rules on promotions prior to the Great Place to Work Initiative were the product of a consent decree in the matter of Larry Williams v. City of New Orleans, 725 F2d 1554 (5th Cir. 1984). The consent decree in the Williams case set out to eliminate discrimination in the promotional process.
The Williams consent decree developed the use of banding test scores to allow the NOPD greater flexibility in choosing promotional candidates to ensure racial equity while maintaining the Louisiana Constitution’s requirements of assessing merit, efficiency, fitness, and length of service through competitive testing. In addition the usage of banding allowed the Civil Service to reduce the error inherent in testing, making test results more accurate. The Williams consent decree, and the resultant banding system, was the result of a number of expert psychometricians and experts from other relevant fields under the oversight of a federal judge. The Great Place to Work Initiative undid the changes implemented by the those experts via the Williams consent decree. The Great Place to Work Initiative re-opened the door to discrimination, favoritism, nepotism, and other ism’s. The Great Place to Work Initiative was not compiled by experts in the field, but it negated changes that were made by experts.
The Great Place to Work Initiative has also led to morale problems. Employees are now uncertain about what it takes to get promoted. Given that uncertainty, it is nearly impossible to resist the conclusion that promotions are being made on the basis of who you know instead of what you know or your ability to perform the job. None of this inspires confidence in the system or the department’s leadership.
In addition to the changes made to the promotional system, the Civil Service Commission has recently added 16 unclassified positions to the New Orleans Police Department. These 16 unclassified positions were previously held by classified employees. The Civil Service Commission approved this request in spite of objections by the Civil Service Department and arguments presented by myself and others. Simply put, the addition of these unclassified positions was contrary to the Civil Service Rules and the underlying notion of the merit-based system of employment. Unclassified positions are the exception to the rule and the addition of these unclassified system effectively denies classified employees a promotional opportunity because they have effectively replaced the classified position of Police Captain.
This just skims the surface of what is wrong with the Civil Service Commission now and the problems caused by the Great Place to Work Initiative. The New Orleans Fire Department has experienced many of the same problems as the NOPD. I am sure there are issues I am unaware of. Deputy Mayor Andy Kopplin, CAO at the time, once told me that the Civil Service Department was too overly concerned with fairness. Maybe in private enterprise an employer can place other things ahead of fairness. However, in public service, fairness is the cornerstone of a healthy Civil Service system.
The Civil Service Commission was right to point the finger at the Sewerage & Water Board regarding these hiring problems. But, the Civil Service Commission needs to look a little closer to home regarding the Great Place to Work Initiative. Maybe they can avert the inevitable disaster that will result from this wanton destruction of the Civil Service Rules.
The Great Place to Work Initiative needs to be repealed. There is nothing wrong with implementing changes to improve the efficiency of the Civil Service Department. However, wholesale changes to a system which was the biggest reform to public service this country has ever seen is a tremendous mistake — a mistake which has already been made.
Donovan Livaccari, Spokesman
Fraternal Order of Police
Crescent City Lodge #2
The New Orleans Police Department announced new pay increases on July 5, 2017. Since then, I have been approached with numerous questions about this pay plan. The following is my appreciation for the plan as it exists now. The plan has to go before the Civil Service Commission and the City Council for approval, but that seems like that won’t be a problem. During recent discussions of a proposed special rate of pay for Homicide Detectives, the FOP suggested that the NOPD needed to examine all special rates of pay and advocated for a bold pay initiative to help with recruitment and retention. This plan, which was put together by the NOPD’s Deputy Chief of Staff, is a step in the right direction. We made some additional suggestions and there are a few questions about this plan that remain unanswered. The following is the plan as it exists today. Salaries below do NOT include state pay or millage.
Police Recruit salaries will remain unchanged at $40,391.84. Our suggestion was that NOPD increase this and all other salaries by an additional 5% so new hires also benefit from the round of increases.
Police Officer I will become Police Officer and the base salary will increase to $46,885.00, a 10.45% increase.
Police Officer II, III, and IV will be consolidated as Senior Police Officer. The base salary for Senior Police Officer would be $51,783.84, a 16.08% increase over P/O II, 10.45% over P/O III, and 5.09% over P/O IV. Anyone who is a P/O II, III, or IV will automatically become a Senior P/O at the time the plan is implemented. The FOP is encouraging the department to allow P/O II promotions prior to the implementation of the plan to maximize the number of officers who are eligible to become Senior P/O.
A new classification titled Master Police Officer would have a base salary of $57,194.53. The Master Police Officer position would be unlike Senior Police Officer insofar as there will be a limited number of Master P/O positions available and the test will be a competitive test. Everyone who qualifies to be a Senior P/O will become a Senior P/O. Master P/O’s would be selected in much the same way Sergeants are selected now (which, frankly, is a mystery to me). Master P/O’s will be limited by assignment. For example, each district may have one Master P/O per platoon. Master P/O’s may also have some supervisory responsibility. There will probably not be an educational requirement for Master P/O.
Police Sergeant will have a base pay of $63,170.56. This represents an increase of 16.08%.
Police Sergeant will have a base pay of $69,771.01. This represents an increase of 19%.
Police Captain will be increased to $77,061.11, an increase of 10.45% and Police Major will be increased to $80,987.01, an increase of 6.41%. Of course, we are operating under the belief that there won’t be any new Captains or Majors any time soon.
The plan also includes 4 detective “positions.” Detective would be the effective equivalent of Senior Police Officer. Lead Detective will be the effective equivalent of Master Police Officer. Detective Sergeant would be the effective equivalent of Police Sergeant and District Detective Lieutenant would be the effective equivalent of Police Lieutenant.
I do not think that a decision has been made about whether the detective positions would be actual classifications, some type of sub-classification, or a special rate of pay. Based on the administration’s recent addition of unclassified commanders and an overall assessment of the department’s current philosophy about various positions, it is my belief that the department will want to be able to un-make a detective easily. In order to be able to un-make a detective easily, the detective’s positions has to either be a special rate of pay or some type of sub-classification. Any change of classification which results in a reduction in actual pay (not a special rate of pay) is a demotion. Demotions must be supported by cause expressed in writing and are disciplinary actions. It is my belief that the department wants to be able to make and un-make detectives much like they can make and un-make Commanders now. We will see how this shakes out, but I think we can count on detectives making 10% more than their effective equivalent. Of course, this is speculation.
So, the questions that remain are things like:
If there are questions, feel free to ask. I don’t know if I have the answer, but I will try. Also, any NOPD employees who have thoughts or suggestions about the foregoing, feel free to share. A copy of the proposal can be downloaded here (.pdf).
The Crescent City Lodge of the Fraternal Order of Police represents 1,009 active New Orleans Police Department Officers, or about 90% of all current police officers in New Orleans. There are 1,022 other members of the Crescent City Lodge, including 863 retirees, 43 NOPD Reserve Officers, 12 terminated NOPD Officers, 89 other active law enforcement officers, 4 associate members, and 11 honorary members. The Crescent City Lodge offers unmatched legal representation and offers services and benefits to members that are unrivaled. It is impossible for me to keep everyone up to date on everything the FOP is working on on behalf of our members. Here are a few highlights:
There seems to be an increase in the NOPD’s use of negotiated settlements. From the Department’s perspective, the use of negotiated settlements gives the Department a way to deal with disciplinary investigations and their impact on manpower. The Department’s interpretation of the consent decree has created a disciplinary system which strains our already strained manpower. Negotiated Settlements allow the Department to dispose of complaints by taking action in a way that doesn’t result in hours upon hours of work by multiple employees. Click here to view the regulation on Negotiated Settlements.
How does it work?
When complaints are received by PIB, they are analyzed for classification. Criminal allegations are sent to the criminal section, some are sent to the Independent Police Monitor for mediation, and some are deemed appropriate for Negotiated Settlement. These are minor infractions that seem fairly straightforward. Once a case is deemed appropriate for Negotiated Settlement, PIB sends a packet to the officer’s commander. Once the commander receives the packet, a Presentation Meeting is scheduled. This could be the first time the officer becomes aware of the pending complaint.
At the Presentation Meeting, the commander will provide the officer with the information regarding the complaint. This should include details of the allegations, including the particular infraction(s) and the evidence, and where the violation falls on the penalty matrix should the allegation be sustained and what the penalty will be if the officer accepts the Negotiated Settlement.
At the conclusion of the Presentation Meeting, the officer has three choices. The officer can 1) accept the offered settlement and penalty; 2) request a reflection period; or 3) reject the offered settlement.
If the officer accepts the offered settlement and penalty, then that is the end of the line. The complaint is not sent out for investigation and the settlement documents are sent up the chain of command for the necessary approvals.
If the officer requests a reflection period, then the officer gets 5 days to think about whether or not to accept the settlement and penalty. At the conclusion of the 5 days, the commander and the officer have a settlement meeting where the officer informs the commander of his decision. If the officer chooses to accept the settlement, then that is the end of the line and the paperwork is sent up the chain of command. If the officer rejects the settlement, then it is sent out for investigation. The decision to accept or reject the settlement offer can be made prior to the end of the 5 days. If no decision is made within 5 days, it is sent out for investigation.
What are the considerations?
First of all, I recommend you contact your FOP attorney regarding any Negotiated Settlement. Your FOP attorney is in a position to discuss whether or not the Negotiated Settlement is a good idea. The rules and regulations, including the disciplinary regulations, are not necessarily something officers study on a regular basis. Consulting with your FOP attorney will increase your chances of making the best possible decision. Also, bringing your FOP attorney into the situation will make you eligible for the FOP’s salary reimbursement option should you end up with a suspension.
The primary reasons for accepting a Negotiated Settlement should be that the officer did, in fact, commit the alleged infraction, and the penalty will be less than the penalty should the complaint go through the normal disciplinary process. For those officers on a promotional register, Negotiated Settlements have the added benefit of resolving a complaint as quickly as possible so that a pending investigation doesn’t interfere with a promotion.
The Bottom Line
The bottom line is that it is beneficial for some, but not all. If the officer didn’t commit the alleged dereliction, then the officer might not want to take the settlement. If the investigation, should it be investigated fully and sustained, would result in a Letter if Reprimand, and the settlement offer is a Letter of Reprimand, then the officer might want to consider letting the Department investigate. However, if the pending investigation would prevent a promotion and the officer did, in fact, violate the rules as alleged, then it may very well be in the officer’s best interest to accept the settlement. Call your FOP attorney. It will make the analysis a little easier.
EDUCATION IN LIEU OF DISCIPLINE
On May 21, newly revised regulations on discipline will become effective. One of the new options available to supervisors will be the use of education in lieu of discipline. In the case of minor, rank-initiated complaints, education may be available to replace suspensions of 10 days or less. For violations that fall in the “D” class or higher, education cannot be used to eliminate discipline, but it can still be used to reduce it. In short, for A, B, and C violations, training can be used to eliminate suspensions 10 days or fewer. For D, E, F, or G violations, or suspensions greater than 10 days, training can serve to reduce the penalty. Click here to see the new regulation on Non-Disciplinary Responses to Minor Violations and the Disciplinary Penalty Matrix (includes education in lieu of discipline).
DISCIPLINE AND THE CONSENT DECREE
After many meetings and much complaining by the FOP, there are some pending changes to the consent decree, particularly paragraphs 143, 328, and 404. The changes will relieve supervisors from responding to a level 1 use of force. In addition, disciplinary investigations which can be conclusively resolved through the use of video evidence (BWC or MVU) can be disposed of without further investigation. We recognize that investigation of complaints is an extremely important aspect of modern policing. That being said, the FOP remains committed to reducing the adverse impact these investigations have on the efficiency of an officer’s ability to do the job expected of him or her. Click here and here to see the impending changes to the consent decree. The FOP also remains committed to fair outcomes of these investigations.
One of the biggest problems facing the legal profession is that many of the people who need legal services the most cannot afford those legal services. The FOP Legal Defense Plan makes legal services available to its members at an affordable price, all contained in bi-weekly dues. Appealing a suspension would likely be beyond the financial resources of your average officer. When that appeal goes to the 4th Circuit Court of Appeal or the Louisiana Supreme Court, the ability to absorb that cost becomes even more unlikely. When an officer falls into a situation like we have seen around the country in places like Missouri, Maryland, and Minnesota, where legal representation is not an option but a requirement, it can have a life-changing impact that no officer can survive on his own. Fortunately, as an FOP member, YOU ARE NEVER ALONE. Click here for contact info.
Officer should be aware of the below case. The Fifth Circuit held that officers who are aware of a constitutional violation can be liable under bystander liability if they fail to intervene. In such a case, because the law is clearly established, an officer will be denied qualified immunity. It is additionally a violation of many department policies (including NOPD) to fail to intervene in an unlawful use of force.
Brandy Hamilton and Alexandria Randle were pulled over by Officer Turner for speeding. After Officer Turner smelled marijuana, he ordered the women to exit their vehicle. Hamilton was wearing a bikini bathing suit, and Randle was similarly dressed. Officer Turner handcuffed the women and searched their vehicle. During this time, Officers Ron Kinard and Amanda Bui arrived. After Officer Turner searched the vehicle, he asked Officer Bui to search Hamilton and Randle. Officer Bui conducted a body cavity search on both women while on the side of the road. Hamilton and Randle subsequently filed a lawsuit against the three officers under 42 U.S.C. §1983 claiming the invasive cavity searches violated their Fourth Amendment rights to be free from unreasonable searches and seizures. Officers Turner and Bui reached settlement agreements with Hamilton and Randle. Officer Kindred argued that Hamilton and Randle failed to adequately allege that an excessive use of force occurred. In addition, Officer Kindred argued that he could not be liable under 42 U.S.C. § 1983 as a bystander for not intervening to prevent the body cavity searches; therefore, he was entitled to qualified immunity.
The district court denied Officer Kindred qualified immunity. The court found that Hamilton and Randle had adequately alleged a claim of excessive force. The court also held it was clearly established at the time of the incident that bystander liability applied. In addition, the court concluded that there was a serious dispute as to material facts in the case regarding the objective reasonableness of Officer Kindred’s actions. Officer Kindred appealed to the Fifth Circuit Court of Appeals.
First, to bring a § 1983 excessive force claim under the Fourth Amendment, a plaintiff must show that she was seized. Here, the court of appeals found that Hamilton and Randle clearly alleged in their complaint that they were seized during the traffic stop when they were handcuffed and placed in the officers’ patrol cars. In addition, the women alleged that they were detained for over thirty minutes and subjected to invasive body cavity searches in violation of the Fourth Amendment.
Second, the court held that Officer Bui’s insertion of her fingers into the plaintiffs’ body cavities constituted a use of force, which the plaintiffs allege occurred during their seizure.
Third, at the time of the incident, it was clearly established that it was not reasonable to conduct a roadside body cavity search, unless there were exigent circumstances that required the search to be conducted on the roadside rather than at a medical facility. Consequently, the court found that Hamilton and Randle alleged facts showing that they were subjected to an unreasonable use of force “excessive to its need.”
The court further held, at the time of the incident, it was clearly established in the Fifth Circuit that an officer could be liable as a bystander in a case involving excessive force if he knew a constitutional violation was taking place and he had a reasonable opportunity to prevent the harm.
However, because there were serious disputes as to material facts regarding Officer Kindred’s potential liability as a bystander, the court of appeals lacked jurisdiction to hear this portion of the case and dismissed Officer Kindred’s appeal.
Recently, I wrote about the New Orleans Police Department’s request to the New Orleans Civil Service Commission for the creation of 16 new unclassified jobs in the NOPD. The NOPD made its pitch at the February 20, 2017 meeting of the Civil Service Commission and it received some media attention here and here. The Civil Service department opposed the creation of these unclassified positions, referring to the request as “unprecedented.” After hearing from the NOPD, myself, on behalf of the FOP, Capt. Mike Glasser, PANO, Lt. Keith Joseph, BOP, and a few others, the Civil Service Commission took no action to allow the Civil Service Department to complete its work and put the matter on the agenda for the March meeting (March 20 if anyone wants to accompany me on behalf of the FOP).
I do not intend to re-post my argument against the creation of the unclassified positions, but for those who have not had the chance to read this article or my letter to the Civil Service Commission in this regard, the Civil Service Rules, which have the force and effect of law, require that in order for a position to be considered unclassified, the job’s responsibilities are not appropriate for anyone in the classified service and should not be performed by anyone in the classified service. Furthermore, someone serving in an unclassified position must have policy-making authority which is not subject to further review or modification. Finally, the Civil Service Commission is required to audit the position regularly to make sure that it is still not fit for the classified service. As both Superintendent Harrison and myself made a point of saying, unclassified positions are the exception to the rule in a merit-based system of employment like Civil Service.
Currently, there is no “Commander” position, really. There is a “Commander” assignment. The Commander assignment, which must be filled by someone holding the rank of Police Lieutenant or higher, comes with a special rate of pay. While I am unaware of anyone actually pushing this particular issue, the NOPD stated that one of the reasons we need to reconsider this special rate of pay is that a special rate of pay does not confer any grant of authority. So, the question is does a Police Lieutenant in the position of Commander have the authority to issue orders to a Police Major? While I am unaware of anyone pushing this issue, there are reasons to reconsider the use of a special rate of pay for commanders. The majority of people assigned to Commander positions are in the rank of Police Lieutenant. Police Lieutenants are non-exempt employees. That means they should make overtime like all other non-exempt personnel under the FLSA. However, they do not get overtime. They are currently being treated as exempt employees. While their pension is controlled by their actual rate of pay, terminal leave is paid to these individuals based on their Civil Service classification. Finally, it is just an abuse of the special rate of pay provisions. This special rate of pay scheme was put in place in 2011 after the Civil Service Commission told then Superintendent Serpas that he could not have 16 unclassified Police Colonel positions.
So, if the positions were not fit to be unclassified in 2011, what has changed that would make them appropriate today? Well, while not answering the preceding question, Superintendent Harrison said that Department of Justice report which led to the current Consent Decree indicted the prior leadership “had largely acquiesced to wide-spread abuses by officers at all ranks.” Superintendent Harrison went on to praise the accomplishments of individuals currently in the position of Commander. Finally, the Superintendent insisted that it was critical that he be able to “swiftly replace leaders who are not performing to standard.”
What is exceedingly clear from the arguments made by Superintendent Harrison is that the NOPD has some good leaders in the position of Commander and that Commanders are performing the jobs previously held by officers in the classified service and that Commanders do not have the type of policy-making authority that is not subject to further review or modification. What is clearly lacking is any logical connection between the existence of the Commander special rate of pay and any of the accomplishments of the folks holding those positions.
During the meeting, Commissioner Stephen Caputo, the newest member of the Civil Service Commission, noted that on several instances in my letter to the Commission I stated the position of Commander had been historically held by Police Captains and Police Majors. He then asked if I was advocating for the status quo, or doing things as they have always been done.
My response was that I was not arguing for the status quo, but that the Civil Service Rules require that the job responsibilities be unfit for performance by anyone in the classified service. History shows us that prior to 2011, the job responsibilities were performed by employees in the classified service. Nothing has changed to make the jobs unfit for the classified service.
That does not mean that we have to maintain the status quo. For example, the NOPD has the longest working-test period for employees. Working-test periods, otherwise known as probationary periods, are set at 6 months in the Civil Service Rules with a maximum of 1 year. The NOPD has 1-year working-test periods across the board. That means that if someone is promoted to the rank of Police Captain and is unable to meet expectations, they can be demoted to their prior classified position — for just about any reason. Generally speaking, if someone is incapable of performing a job, that incompetence will reveal itself within a year. My point is that before we go shopping for a new toolbox, maybe we should make sure that we are making the best use of the tools we already have.
Civil Service Commission Chair Michelle Craig said that the Commission wanted the opportunity to examine best practices. While the idea of “best practices” aggravates me to no end, I was fascinated by Superintendent Harrison’s reply that NOPD was re-writing the best practices and, therefore, what they are doing is the de facto best practice.
In today’s environment of instant gratification, we have to be able to point out real-time problems to demonstrate why these ideas that run contrary to the civil service philosophy should be avoided. That is an impractical demand. However, make no doubt about it, it is coming. There will be a discriminatory application of the “Great Place to Work Initiative,” if there hasn’t been one already. The creation of 16 unclassified Commander positions, would eventually prove problematic.
The first merit-based civil service system can be traced back to Imperial China and Emperor Wen of Sui (AD 605). It wasn’t until the 1940’s that Louisiana embraced the civil service system. Even then, it was repealed in 1948 and re-established in 1952. Since then, more than a few changes have been made to how civil service systems are administered. However, the idea of a merit-based system of employment utilizing objective standards and competitive testing has persisted.
So, while I am not advocating doing things as we did them in 1992, I am advocating the maintenance of the underlying set of guiding principles which have served us well for a long time. We don’t have to throw the baby out with the bath water. We don’t ditch democracy just because there is a more efficient way to administer the Department of Education. The New Orleans Civil Service Commission has taken some steps recently which are downright scary. The “Great Place to Work Initiative” dismissed important civil service principles relating to promotions and competitive exams. Of course, the NOPD would point to successes of newly promoted sergeants or lieutenants as if that is the result of the new system in some way. If you are thinking they wouldn’t do that, that is exactly what they are doing with the Commander position. Granting the NOPD 16 unclassified positions to replace the special rate of pay for Commanders would be counter to the underlying fundamentals of the civil service system. Does that mean it has to be done the old way? No. It just means it shouldn’t be done the way the NOPD has proposed.