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NOPD Police Sergeant 2021

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When Michael Harrison was Superintendent of the New Orleans Police Department, the Mayor’s Innovation 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 Innovation 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 Innovation 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 Innovation 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 Innovation 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 either. This is not a good look on either the CAO or the Business Council.

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.

FOP Crescent City Lodge #2 Monthly Newsletter Email Giveaway

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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!

The Sewerage & Water Board, the New Orleans Civil Service Commission, and the Media Attention

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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

Opinions are like ________. Everybody has one.

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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.

Police Body Worn Camera Videos

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The Louisiana Legislature is currently considering Senate Bill 398 by Sen. Ronnie Johns (R)-Lake Charles.  Senate Bill 398 would exempt all body worn camera videos recorded by police from public records disclosure unless the individual or entity seeking disclosure of the video files a lawsuit and gets a court order directing the video be disclosed.  It should be noted that the bulk of police body worn camera videos will likely be exempt from disclosure based on the already existing law regarding records of ongoing criminal litigation (See La. R.S. 44:3).

In an opinion piece by the NOLA.COM Editorial Board, it is stated that the bill was introduced at the behest of law enforcement.  To clarify that broad assertion, the bill was introduced at the behest of the Louisiana Chief’s Association.  What that means is that the bill was introduced at the request of police administrators across the state, not the rank and file officers.

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Louisiana’s Future with Body Worn Cameras

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by Jacob Lundy

As always, FOP New Orleans strives to keep members ahead of the curve when it comes to changes in law and policy; both of which seem to occur with considerable frequency in recent years.

As all members of the New Orleans Police Department are aware; we have yet to see any of our body worn camera videos on the evening news. Whether you think that’s a good or a bad thing, it is likely to change in the future. Given events in Chicago over the past several months, combined with the general direction of criminal justice transparency it seems likely that all body worn camera-equipped agencies nationwide will be forced to contend with the public’s desire to see what all these cameras are recording sooner or later. NOPD, for good reason, hastened the implementation of body camera use for the obvious benefits they provide to both police officers and citizens. Clearly, the idea was to get body cameras out into the field as quickly as possible and revisit aspects of Policy 447 (BWC) as needed. As with an ever increasing number of other states, Louisiana state law may soon dictate how and when such videos are made available to the public – among a number of other issues related to managing a body worn camera program.

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The State Legislature has convened a body worn camera task force with the aim of submitting a final report on a variety of concerns related to the possibility of state-wide implementation of body worn cameras. As you might expect, FOP has a seat on the Louisiana Legislature Law Enforcement Task Force for Body Camera Implementation. 

While body worn cameras are nothing new to NOPD; public release of footage would add another dimension to the now ubiquitous workplace devices and FOP intends to prepare its membership for the corresponding challenges. While a finalized state law could be quite a ways down the road, NOPD continues to transform into an agency of national firsts; FOP would not be surprised to see the department blaze its own trail ahead of the legislature in this arena. Regardless, FOP New Orleans would suggest officers assume today that all videos generated will be subject to public viewing. All of us at NOPD have been working over the past two years with the understanding that all issues of policy and law, from courtesy to use of force, can and will be reviewed via body camera footage by PIB, the FBI, FIT, OCDM, and the IPM (I believe that’s all of them). The men and women of NOPD have embraced the technology and far exceeded expectations in both implementation and performance. Regardless of the department’s exceptional performance, under any new public release law or policy a primary concern of lodge attorney Donovan Livaccari are the implications of actions and statements made between officers during and immediately following critical incidents which were formerly analyzed only by field experts. Members are reminded that a side effect of such transparency is that your actions are likely to be subjectively analyzed, often out of context, by any number of pundits for whom controversy = revenue. Your detractors are not necessarily influenced by the guiding principles of Graham v. Connor. Officers should remain cognizant that all statements made immediately following highly stressful encounters on body camera are indelible and have the ability to shape post hoc analysis of critical incidents. There is really no reason to be ambiguous on this topic; while engaged in the scope of your employment, should you become involved in a major use of force, however justified, you will become a de facto suspect in a criminal investigation. This is a practical FYI for all FOP members who are negotiating a rapidly changing law enforcement environment where literally everything you say and do is recorded – and may soon be at the top of the 5 o’clock news. FOP representatives will be making the rounds in the near future to discuss legal, privacy, and policy concerns with members.

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First meeting of the State Legislature Body Camera Task Force

As referenced above, the Louisiana Legislature created the Louisiana Legislature Law Enforcement Task Force for Body Camera Implementation in late 2015 which is comprised of various experts from state and local law enforcement, attorneys, ACLU and NAACP representatives, mayors, Darrell Basco (President of the Louisiana FOP), and is chaired by Franz Borghardt (criminal defense attorney, Baton Rouge). I spoke with Chairman Borghardt in Baton Rouge following the first meeting of the committee for some background and details on the work ahead, keeping in mind any eventual state legislation will certainly apply to NOPD and guide our continued use of the technology.

Chairman Borghardt on the creation of the task force; “the legislature, in HCR 180 (2015 R.S.), created the task force to study and make recommendations regarding requirements for the development and implementation of policies and procedures for the use of body cameras by law enforcement. This came from a House concurrent resolution by Representative Honore and Senator Broome as a response to legislation that was proposed to mandate, by law, the required use of the devices. The task force’s continued existence is governed by resolution and the task force itself serves at the pleasure of the Louisiana Legislature.” Borghardt continued, “the ultimate goal of the task force is to make an informed and well thought out proposal to the Louisiana Legislature with regard to the implementation and use of body cameras in Louisiana. This includes policies and procedures on implementation, considerations for privacy rights and officer safety, effects on public records law, data storage, and cost considerations.”

To-date the task force has met once for public discussion, a review of the goals of the committee, and homework was assigned to all members for research and input from their respective bodies/agencies to be submitted at future meetings. The committee will reconvene in March 2016.

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Some early discussions of the committee have been focused on a constitutional issue surrounding any mandate that all agencies in Louisiana implement body cameras; under Louisiana’s constitution, the state cannot mandate municipalities implement body cameras without paying for them. I think everyone would agree the state is in no position financially to pay for several thousand body cameras and incur the cost of maintenance and storage. The state does have the option of something called an unfunded mandate, meaning the legislature could require municipalities to implement body cameras at their own cost; those that do not would have state funding in some other area cut (remember when the federal government “suggested” Louisiana raise the drinking age from 18 to 21 or they would cut federal highway dollars = unfunded mandate). This avenue seems unlikely, however. On this particular issue, committee Chairman Franz Borghardt said “legislation that creates an unfunded mandate would likely be something that all parties involved would like to avoid.” What route the state takes in requiring or suggesting all police agencies adopt body cameras remains to be seen, Borghardt identified “long term cost of data storage” as one of the biggest perceived obstacles to state-wide implementation.

Beyond state mandates and associated costs, the most contentious item seems to be the host of privacy issues that surface with body camera use. This includes everything from front-end privacy concerns (can a citizen request an officer turn off his/her camera in their residence, filming in hospitals/schools, etc.) to back-end issues such as release of videos pursuant to records requests – the committee is also discussing whether our current public records law infrastructure would apply to camera footage as-is.

 

FullSizeRender 6Recently committee Chairman Franz Borghardt, Louisiana FOP President Darrell Basco, and others appeared as panelists on the Louisiana Public Square television show in Baton Rouge to discuss the committee’s work and common concerns about body cameras. FOP New Orleans also participated in the discussion on behalf of members to voice lodge concerns. We recommend viewing the show to get a state-wide gauge for the direction of body cameras in Louisiana (watch the show by clicking this link).

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In addition to formulating FOP’s official position on specific points on the commitee’s agenda, FOP President Basco cautioned the committee against hasty legislation that could potentially negatively impact both officers and the public. President Basco is advocating for a thorough review of existing state law elsewhere; the successes and failures of legislation in other states, carefully considering Louisiana’s privacy concerns, and preparing a proposal for a future session so that all members of the committee feel confident in any end result legislation.

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All members of the task force, including the FOP, are sourcing model legislation and existing research and data for submission to the committee. Representatives from New Orleans will also be giving a presentation to the committee on our city’s two years of experience with body worn cameras including the various pros  and cons over that time.

Members wishing to see the direction other states have paved in this area can refer to The Reporter’s Committee for Freedom of the Press site which includes an interactive map with links to each state’s body camera laws (both existing and in-progress legislation). Also worth reading; the Department of Justice/Police Executive Research Forum study “Implementing a Body-Worn Camera Program; Recommendations and Lessons Learned”.

Regardless of existing data and research, Chairman Borghardt appropriately points out that “it is evident that the implementation of body cameras, in as much as policy and procedures can be enacted, will also require organic growth in understanding unforeseen issues with their use.”

As FOP New Orleans’ policy chair, I can report with confidence from the legislative committee to ongoing discussions in Baton Rouge; there is overwhelming support for body cameras across Louisiana but no consensus on when and how videos should be made public.

Additional articles/studies and relevant law can be found in the hyperlinks below;

Louisiana Title 44.1 et seq Public Records Louisiana Revised Statutes

7 Findings from First Ever Study on Body Cameras PoliceOne.com

Growing use of Police Body Cameras Raises Privacy Concerns Los Angeles Times

Use of Force Reporting Guide and Checklist Signal108, Donovan Livacarri

2015 #FOP #Legal Year in Review

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2015 has been a banner year for both the FOP Legal Defense Plan and the firm of Livaccari Villarrubia Lemmon.  Hopefully, next year Livaccari Villarrubia Lemmon LLC will transition to Livaccari Law.  The staff, office location, phone number, etc., will remain the same – only the name will change.

This firm began in the early 80’s as Brough and Livaccari, made up of William R. Brough and Anthony J. LIvaccari, Jr..  Brough and Livaccari was mainly an insurance defense firm.  In the 90’s, there were a number of notable insurance company failures in Louisiana, such as Champion Insurance.  The Louisiana Insurance Guaranty Association (LIGA) was responsible for picking up where these failed companies left off.  Brough and Livaccari began representing LIGA.  In addition, they began to handle more plaintiff work, specifically automobile accidents and other personal injury cases.  Since then, Todd Villarrubia joined Tony Livaccari.  Todd has subsequently left to run his own firm, the Wealth Planning Law Group, which is next door to my office.  My sister, Jenifer Lemmon, graduated law school and subsequently began working in the 5th Circuit Court of Appeal.  So, Livaccari Villarrubia Lemmon no longer contains a Villarrubia or a Lemmon.  I joined the firm on part-time basis when I graduated from law school and was admitted to the bar, and on a full-time basis when I left the NOPD in 2008.

Today, the firm is composed of myself, Donovan Livaccari, and my father, Tony Livaccari.  My work is primarily composed of representing law enforcement officers through the FOP Legal Defense Plan.  My father, Tony Livaccari, concentrates on personal injury litigation cases — automobile accidents, motorcycle accidents, etc. as well as other general practice cases.

During 2015, my father represented a number of police officers with automobile accidents and other filled in for me once or twice.  Automobile accidents, motorcycle accidents, scooter accidents, and other injuries are common for law enforcement officers.  When you drive a car 8 hours a day, it is inevitable that accidents happen.  Police officers who are involved in automobile accidents should consult with an attorney, particularly when the other party is at fault.  When consulting with an attorney post-accident, it is extraordinarily helpful to have an attorney who is familiar with law enforcement.  For example, when recovering lost wages, it is vital for an attorney to understand how police details work or the difference between a workers compensation injury and an injured on duty injury.  Here, at Livaccari Law, we can provide that type of knowledge and familiarity to law enforcement officers in addition to the 30+ years of experience handling these types of cases in general.  There is no harm in calling.  Involved in an accident?  Call Tony at 504-621-2636 or me at 504-905-8280.  The office number is 504-488-3702.

With regard to the FOP Legal Defense Plan, I represented 427 individual police officer clients in one capacity or another.  For those 427 police officer clients, the following services were provided:

DI-1 Statements – 253
Disciplinary Hearings – 123
Rule IX Hearings – 24
Accident Review Boards – 10
Civil Service Appeals filed – 26
Civil Service denial of promotion appeals – 5
Civil Service subpoenas – 34
Civil Service hearings – 20
Civil Service extension hearings – 77
Notary services – 63
Officer Involved Shootings – 8
Media interviews – 82

In addition to these regular, repetitive services, I attended numerous City Council meetings, City Council committee hearings, and regular Civil Service meetings.  I represented several officers with regard to reclassifying workers compensation injuries as injured on duty injuries.  In addition, I drafted a rule amendment which was adopted by the Civil Service Commission to include injuries sustained while engaged in traffic enforcement or the investigation of traffic incidents as injured on duty incidents (Rule VIII, Sec. 2.9(a)).

The FOP was also active in the 2015 Louisiana legislative session as usual.  We made several trips to Baton Rouge in furtherance of the FOP’s legislative agenda.  In addition, the FOP is the only rank and file law enforcement group to be included in the Louisiana Body Worn Camera Task Force.  Myself, Jake Lundy, and Jim Gallagher attended the Body Worn Camera Task Force meeting in Baton Rouge in support of Darrell Basco, Louisiana FOP President, who has a seat on the task force.

It has been a busy year and I look forward to continuing to be there for FOP members when they need someone the most in 2016.  Having been a law enforcement officer, I am grateful for the opportunity to represent FOP members.

For 2016, I plan on bringing the FOP’s Critical Incident Response Team online.  When officers are involved in critical incidents, such as officer involved shootings, or in-custody deaths, it is crucial for the FOP to be able to provide prompt, quality legal services to its members.  But it is much more than that.

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Being involved in a critical incident can be one of the most traumatic experiences in the life of a law enforcement officer.  Officers are subjected to the type of scrutiny we have never seen before.  At the scene of an officer involved shooting, representatives of the Office of the Independent Police Monitor, federal monitors, FIT investigators, etc., etc., are present.  The media is usually there and very interested in the incident and people involved.  Questions are flying and recordings are being made.

In short, it is important for an officer to be able to have someone by his or her side who is unquestionably looking out for their best interest.  The FOP Critical Incident Response Team will be able to provide that.

First, it is of the utmost importance that someone notify me as soon as possible.  If I do not know about a critical incident until I read about it in the news the next day, it is impossible to respond to the scene.  I need someone to call me, assuming the officer or officers involved wants someone notified.  Once I receive the call, I will get as much preliminary information as I can get, such as the number and identities of officers involved.

So, for illustrative purposes, let’s assume that there is an incident involving two officers involved in an officer involved shooting which led to the death of a suspect.  I need to know the foregoing.  I also need to know if the officer has a preference with regard to a lawyer to be notified.  I have a list of attorneys who have agreed to answer the phone in the middle of the night, get dressed, and respond to a critical incident scene if possible.  Right now, that list includes:  Bruce Whittaker, Ed Doskey, George Hesni, Kevin Boshea, Roger Jordan, Tanya Faia, Townsend Myers, and William Dunn.  All of these attorneys are experienced criminal attorneys.  So, once I learned there were two officers involved, I would go down the list until I have two attorneys in addition to myself who are able to respond to the scene.

I, along with the two criminal attorneys will respond to the critical incident.  I will attend to any administrative matters and make sure that the criminal attorneys file the proper claim forms with the FOP Legal Defense Plan.  Hopefully, that will clear up the criminal attorneys so that they can attend to the legal needs of the officer involved without having to be concerned about some of the potentially distracting administrative issues.  These criminal attorneys will be available to represent the officer throughout any criminal investigation.  After that, I will be available for administrative proceedings or the officer may be able to continue with the criminal attorney if they wish to do so.

I am also planning on securing a use of force expert to respond to the scenes of critical incidents to advise myself and the criminal attorneys with regard to any use of force issues identified on the scene.  I am excited about the benefit this will provide to officers and I know, from my own experience, how beneficial it is to the officer to have someone by their side during these types of events.

Please feel free to call me or Tony with any legal needs you may have.  We appreciate your business and promise to deliver the type of service that you deserve whether it be with a DI-1, a Civil Service appeal, a 4th Circuit appeal, an automobile accident, a will, a power of attorney, or a succession.

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NOPD Promotions Illegal and Damaging Morale

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UPDATE:  This article has been revised to redact individuals’ names.  While I received an overwhelming number of supportive reactions to this article, I am concerned about those who thought it was unfair to one particular individual.  It was never my intent to belittle anyone or throw anyone under the bus.  It is the process that is the issue, not the individuals involved.  Therefore, I have redacted all names except for the list of promotions.  The names are unimportant.  I congratulate those who were promoted.

On September 23, 2015, the New Orleans Police Department announced 8 promotions.  Typically, promotions are something to be celebrated and a boost to morale.  Unfortunately, this cannot be the situation.  The round of promotions before this was not much better.  Unfortunately, these promotions have done little more than make morale in the NOPD just a little bit worse.

On September 23, 2015, the following promotions were made:

Lt. Derek Frick to Police Commander
Lt. Bryan Lampard to Police Commander
Sgt. Daryl Watson, I to Police Lieutenant
Sgt. Sabrina Richardson to Police Lieutenant
Sgt. Duralph Hayes to Police Lieutenant
Sgt. Kenrick Allen to Police Lieutenant
Police Officer Charles Love to Police Sergeant
Police Officer Stephanie Taillon to Police Sergeant

Sgt. Daryl Watson was promoted to Police Lieutenant.  Lt. Watson was 61st on the list of 65 Police Sergeants who passed the promotional examination   That means that 60 out of 65 people performed better on the promotional examination.  This is not a multiple choice test.  This is an exam specifically created to test a candidate’s proficiency as a Police Lieutenant with the New Orleans Police Department.  Not only was Lt. Watson 61st on the list, but candidate numbers 3, 4, 7, 8, 11, 13, 16, 18, 19, 22, 24, 25, 25 (tie), 28, 29, 30, 31, 32, 33, 34, 37, 39, 40, 41, 43, 44, 45, 47, 48, 49, 49, 49 (tie), 52, 55, 55 (tie), 57, 58, 59, and 60 remain unpromoted.

Candidates go into promotional exams thinking that they know what it takes to get promoted.  A candidate who scores well on the test and doesn’t have a pending disciplinary investigation can count on being promoted once the NOPD gets to that candidate’s place on the list.  It simply doesn’t work that way any longer.

What does it take to get promoted?  Some kind of special qualifications, experience, or training?  Well, Lt. Daryl Watson has been assigned to the Criminal Section of the Public Integrity Bureau for a long time.  Certainly that kind of experience must be hard to find.  It might be, but Sgt. Kevin Stamp, number 30 on the list, shares the same assignment and has been in that assignment for quite a while.  So, I guess that is not it.  Is it education?  Sgt. Eric Berger, number 22 on the list, graduated from law school.  I don’t think Lt. Watson has a law degree, so that is not it.  What is it?

Here is what the Louisiana Constitution tells us:

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.
La. Const. art. X, § 7

The Civil Service system is designed to ensure that promotions and appointments are made based on objective criteria that are no secret to anyone.  The Constitution clearly envisions those objective criteria being accounted for in the examination process.

The Louisiana Constitution goes on to explain the process for picking promotional candidates with a little flexibility built in:

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.
La. Const. art. X, § 7

This is where the problem comes in.  In spite of the obvious logical flaws, the Landrieu administration has fought to interpret this as saying that the number to be certified could be 3 or 103.  Once they had the right people appointed to the Civil Service Commission, the rules were changed basically making everyone who passed the test equal.  Whatever the competitive nature of the testing is, if there is any beyond passing the test, is a mystery.

What I can say for certain is that the men and women of the New Orleans Police Department believe that the competitive criteria is friendship with the right person.

What I can also say for certain is that whether or not that is true is irrelevant because perception is reality.

The Civil Service system was developed to prevent that perception.  The Civil Service system was designed to prevent political interference and “the spoils system.”  The Civil Service system was designed so that an objective set of criteria could be applied to candidates for promotion in the public employ and employees could count on getting promoted, even if they were not friends with the boss.

These revisions to the Civil Service rules made as part of Mayor Landrieu’s Great Place to Work initiative need to be repealed.  The Fraternal Order of Police has a lawsuit filed in Civil District Court asking a Judge to declare the new rules unconstitutional.  We would all be better off if the Civil Service Commission repealed these changes on their own accord or if the NOPD sought to have these rule changes repealed.  Of course, that won’t happen.  The NOPD could have continued to apply the old rules to promotions.  Had the NOPD continued using the old rules in spite of the rule changes, perhaps officers wouldn’t feel like their chances of getting promoted were impacted by potentially anything other than test score.  Superintendent Serpas sought to kill the last promotional register for Police Lieutenant after the first half of the list was promoted.  It was his stated belief that he would have rathered give a new test to generate a new list in order to avoid promoting from the bottom half of the list (the list being comprised of all who have passed the exam).

At this point in the history of the NOPD and the City of New Orleans, police manpower is at critical levels.  Manpower has been at critical levels for several years now and will take years to correct.  As long as the men and women who make up the NOPD believe that they are not being treated fairly or that promotions aren’t being administered fairly, it will be hard to convince officers that they should be trying to encourage potential law enforcement professionals that this is the place to start a career.

It was not my intention to pick on Daryl Watson for any reason.  I am only trying to illustrate a point.  Nothing written here is intended to infer in any way that Daryl Watson is not a capable police officer or that he will not make a capable Police Lieutenant.  Indeed, I have spoken with others who had been promoted from the bottom of the list who have indicated that they too wished the NOPD had used the old rules to promote people so that people would not be as quick to question their potential as a supervisor.  Hopefully, he will understand.  I used 62 as my example last time.

This needs to be fixed or morale will never improve.

FOP Scholarships Make Lasting Difference for Members, Families

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fop press release

For Immediate Release
Monday, September 14, 2015

FOP SCHOLARSHIPS MAKE LASTING DIFFERENCE FOR MEMBERS, FAMILIES

At its September meeting, the Fraternal Order of Police, Crescent City Lodge No. 2, awarded scholarships to members and their families through the organization’s Scholarship Program, which awards a total of $7,500 in scholarship funds each year.

Over the past 10 years, FOP Scholarship Committee Chairman Louis Shaw has overseen the disbursal of more than $50,000 in educational assistance to FOP members, their spouses, children and grandchildren.  At its September 2015 meeting, the FOP awarded the following scholarships:

FOP Attorney’s Continuing Education $1,000 Scholarship was awarded to NOPD Sgt. Nicole Powell.  Powell is assigned to the NOPD’s Investigative Services Bureau, and is attending Loyola University of New Orleans.  This scholarship is funded by donations from our FOP Legal Plan attorneys, many of whom are former New Orleans police officers.

Through the Robert E. Lampard, Jr. Memorial Scholarship, $500.00 was awarded to Meghan Brown, the granddaughter of retired NOPD Lieutenant John Jackson.  Meghan Brown attends Our Lady of the Lake College in Baton Rouge.  The Robert E. Lampard, Jr. Memorial Scholarship is awarded in honor of the late Robert E. Lampard, Jr., longtime National Trustee of the Fraternal Order of Police.

Through the J. Fant Taylor College Scholarship, named for a longtime benefactor of the FOP, two scholarships of $500.00 were awarded. Sgt. Omar Garcia, assigned to the NOPD Child Abuse Section, was awarded $500.  Garcia is attending the University of New Orleans.   NOPD Officer Valerie Keys was also awarded a $500 scholarship.  Keys, assigned to the NOPD Crime Laboratory, is working toward a degree from the University of Phoenix.

In order to assure that our younger members can also benefit from our scholarship program, the FOP Crescent City Lodge also awards two $500 High School / Grade School scholarships to children in grade school and high school.  This year’s recipients are Anthony Ceravolo, son of FOP member Capt. William Ceravola (ret.), who attends Lyon Elementary School; and Rachal Bancroft, granddaughter of Arthur Bancroft, who retired from NOPD in 2006, is attending Belle Chasse Academy, located at the Naval Air Station in Belle Chasse and dedicated to the education of military-dependent children.

“Our Scholarship Program makes a lasting impact, not only on the recipients and their families but on our community,” said Sgt. Walter Powers, Jr., president of the lodge.  “Education makes the NOPD stronger and improves New Orleans in myriad ways that last long after graduation ceremonies.  We’re proud of our contributions to our city, and we’re proud of all the scholarship recipients.”

The Fraternal Order of Police, Crescent City Lodge, is the largest law enforcement organization associated with the New Orleans Police Department.  Our membership is made up of over 1,000 active law enforcement officers and nearly 900 retired officers.  Our mission is to promote and foster the enforcement of law and order; to improve the individual and collective proficiency of our members in the performance of their duties; to encourage fraternal, educational, charitable and social activities among law enforcement officers; to advocate and strive for uniform application of the civil service merit system for appointment and promotion; to support the improvement of the standard of living and working conditions of the law enforcement profession through every legal and ethical means available.

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Media Contact:

James Hartman
tel:504.458.4600
504.458.4600
james@jameshartman.net

Obligations, Pensions and Millage (updated)

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In the September 10, 2015 copy of The New Orleans Advocate, there was a letter to the editor by Nick Felton, President of New Orleans Firefighters Association Local 632.  The letter is about how the City of New Orleans needs to make good on their obligation to the NOFD pension.  It goes without saying that a city’s obligations to public employees and public employees’ pensions are extremely important.  While these pensions have been demonized recently by some politicians around the country, the existence of these pensions for public employees is a significant inducement for young professionals to dedicate their professional lives to public service at wages below what they might be able to get otherwise in the private arena.   As I said above, pensions are extremely important for public servants.

Many who are not in public service (and some who are) are completely unaware of what is known as the Social Security Windfall Elimination Provision.  The Social Security Windfall Elimination Provision (WEP) significantly reduces the Social Security benefits of anyone who contributes to a public pension.  Police officers, firefighters, and teachers are all among the public servants adversely impacted by the WEP.  This underscores the importance of public pensions, particularly for those who have dedicated 30+ years to their communities and rely on pension payments to survive in retirement.

I encourage public servants to start their own Roth IRA or some similar type of investment to save for the future.  There are some interesting options available, such as Acorns, an iOS app which allows participants to automatically invest their spare change as they go through the day.  I use Acorns.  It works for me in the background, silently squirreling away spare change.

As important as this topic is, it is not the reason for this post.

Much has been made recently about a recent court decision holding Mayor Mitch Landrieu in contempt of court and threatening house arrest for his nonpayment of the debt owed to the firefighters’ pension not devising a plan to pay the firefighters their judgment in their longevity or payroll lawsuit.   The fact is that the City of New Orleans owes in excess of $34 million to over 500 plaintiffs in various civil judgments, as reported by NOLA.COM reporter Robert McClendon.  One of those debts it to the City’s police officers.

In 1980, Claude Schlesinger,  on behalf of the Fraternal Order of Police, filed an action in Civil District Court on behalf of New Orleans police officers for millage payments owed to our city’s police officers. The District Court found in favor of the Fraternal Order of Police and ordered the City to pay $3,376,740.00 to police officers for neglected payments between 1980 and 1994 and left the post-1994 amount owed open for later determination.  This judgment was finalized in 2000 and the City appealed the judgment to the Louisiana Fourth Circuit Court of Appeal.

A February 19, 2003 decision rendered by the Fourth Circuit Court of Appeals affirmed the decision of Civil District Court thereby upholding the judgment.   This judgment has been sitting around since 2003 accruing judicial interest and has not been paid to the police officers who were prejudiced by the actions of the City deemed to be illegal by the court.

This judgment needs to be paid.  Many of the officers adversely effected by this lapse have since retired and now live on fixed incomes or have had to get jobs to supplement pension payments.

The City owes it to all New Orleanians to pay this judgment before the judicial interest gets any larger.

There is a moral obligation to fund the firefighters’ pension.  There is also a moral obligation to pay the judgments to people wronged by the City.  The City wants to attract and retain police officers.  They are quick to point to that as a goal.  One good way to do that would be to make good on its debts.

Pay the millage judgment.

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This post was revised on 9/12/15 based on comments received from NOFD personnel.  I hope that it is now accurate.  Ultimately, the message remains the same.

The comment I received follows:

You wrongly stated the mayor’s “house arrest” was due in part because he did not pay the funds into the pension system. That is not the case. He is held in “contempt” for not coming up for a reasonable payment plan to pay off the “Longevity Lawsuit” which I like to call the “Payroll Lawsuit” for layman terms, the City has lost. The City lost the pension lawsuit too, but these are two different lawsuits which the mayor is attempting to confuse the public about when he continues to tie the pension lawsuit to the longevity lawsuit.

You stated twice wrongly in your letter:

First, “The letter is about how the City of New Orleans needs to make good on their obligation to the NOFD pension.”

And secondly, “Much has been made recently about a recent court decision holding Mayor Mitch Landrieu in contempt of court and threatening house arrest for his nonpayment of the debt owed to the firefighters’ pension.”