On Monday, January 23, 2023, I received a phone call from Superintendent Michelle Woodfork. She wanted to explain that she was committed to paying all NOPD employees the same. So, while it remains possible that all NOPD officers will receive a 10% premium pay and a $26/hr. special rate of pay, Chief Woodfork is not going to allow some people to get the premium pay and the special rate of pay while others do not.
The Crescent City Lodge of the Fraternal Order of Police is also committed to getting NOPD parade personnel, NOPD District personnel, and law enforcement officers from other agencies who have come to help get Mardi Gras Krewes back on their regular routes. As I said at the end of last week, it sounded like a plan was coming together, and, as Col. John “Hannibal” Smith used to say, “I love it when a plan comes together.” I hope everyone understands the importance of plans coming together.
Today, a Press Release was issued by the Mayor’s Office that appeared to say that some NOPD officers would be paid one thing and another group of NOPD officers would be paid more during Mardi Gras. The Press Release suggested that the officers who were not being paid as much as their peers could work paid details (extra work after their regular 12-hour shifts) to make up the difference. This article appeared on NOLA.COM seemed to confirm that. The FOP said that was unacceptable.
The message to FOP members is that we have not given up yet. Once plans are solidly in place, I will be happy to share details with our members. Until then, we continue to work with the Mayor’s Office, the CAO’s Office, the Director of Personnel, the Civil Service Commission, Superintendent Woodfork, the NOPJF, and others to make sure that Mardi Gras pay is equitable.
On behalf of Sgt. Willie Jenkins and the FOP Labor Committee and myself, Claude Schlesinger, and the Legal Committee let’s work on quelling the rumors that are making the rounds. I will post an update once I can share more.
I know many of you have seen information regarding Mardi Gras compensation coverage due to our staffing shortage.
While I welcome any assistance from outside law enforcement to ensure we have a safe carnival season, my position has been and will always remain all officers should receive equal compensation across the board regardless of their respective duties.
As you are aware Mardi Gras coverage is a collective effort throughout the department which require officers who would normally work their regular police duties to engage in parade coverage which ultimately results in other officers in the districts working additional hours and days to supplement the loss for those assigned to the parade route.
Furthermore, we are bound by our oath of office to protect the entire city despite special events coverage; therefore, all officers should receive equal compensation.
In the coming days, we will finalize all aspects of the 2023 Mardi Gras plan including the compensation levels. I look forward to working with all stakeholders to ensure equity in compensation for all officers.
I will provide an update to the rank and file of NOPD with all information once completed.
I appreciate your hard work in preparing for this upcoming Mardi Gras season.
Thank you for your continued dedication to our community.
I and other FOP Board members have received numerous phone calls from other officers asking about a rumor that the City of New Orleans would be paying officers from other jurisdictions $50/hr. to come to New Orleans and work the parades and other assignments working its way up to Mardi Gras and $75/hr. on Mardi Gras Day. After having received a phone call from FOP VP Willie Jenkins, III and since I had not heard anything official about this, I sent an email to New Orleans Chief Administrative Officer Gilbert Montaño to see what I could find out. I immediately received a text from Ms. Montaño asking if he could call me on the telephone.
Mr. Montaño explained that he was currently working with his team on two (2) separate plans to bring pay for current NOPD employees up to at least $50/hr. for the period leading up to Mardi Gras Day and at least $75/hr., if not more, for Mardi Gras Day, February 21, 2023. This temporary pay increase will be legal and justifiable because NOPD officers will have to supervise officers from other jurisdictions — at least help them out and call for a rank, if necessary.
Mr. Montaño told me that he anticipates that these plans may be considered by the New Orleans Civil Service Commission on January 20, 2023. The next stop would be at the New Orleans City Council on February 2, 2023 for approval by the City Council. Put those two dates on your calendar, it may be necessary to attend in support of these two plans.
I also got a call from a former NOPD officer who now works at another law enforcement agency. I must say that he sounded better and I am happy about that. He told me how his rank had explained the New Orleans Mardi Gras invitation and then, knowing he had come from New Orleans, asked if it was worth $75/hr. to work during Mardi Gras. While his answer had been no, my answer would have been yes.
First, $50/hr and $75/hr are good wages for working Mardi Gras. Second, it would be terrific experience for any outside agencies. Other cities have tried to have a New Orleans style Mardi Gras only to have the party turn into a brawl. Third, you won’t get this type of experience anywhere else. I am sure someone is thinking “they have big crowds in New York all the time and they seem to manage.” Have you ever been to New York for a special event? It is not the same. My daughter and I were in New York for the 4th of July and waited in a long line, put into pens without access to restrooms, food, water, etc. and left there for what would have been hours. I say what would have been hours because we split and went back to watch the fireworks on television at the hotel. I was glad we were allowed to leave.
I had fun at every Mardi Gras I ever worked. I worked on the parade route, in the districts, on motorcycles, on horseback, and in the lead vehicle for parades. It was fun. If I had been paid $50-$75/hr. or more, it would have been more fun.
While there is an occasional incident at Mardi Gras, I can say in all honesty that I didn’t see any or have to work any. I may have had to maneuver a parade around one, but it was not a big deal.
In short: If you are a law enforcement officer from another agency who has an opportunity to come to New Orleans to work Mardi Gras, I would do it. It is fun and the pay is good. If you are a law enforcement officer employed by the NOPD, put 1/20/23 and 2/2/23 on your calendar. You too should be making at least $50 and $75 per hour and we need to make sure we support CAO Montaño’s efforts to make it so.
On behalf of the Crescent City Lodge of the Fraternal Order of Police, I wanted to thank Sgt. Jerusha Carroll and the 8th District DIU for coming up with a plan to allow DIU units across the City to supplement the platoons without using transfers. Although these moves would have been temporary, transfer denotes some degree of permanency. Sgt. Carroll and her colleagues thought there was a better way and developed a plan which they sent to me. I sent the plan to Sgt. Willie Jenkins, who is co-chairman of the FOP’s Labor Committee with P/O Jeremy Wilcox. Sgt. Jenkins consulted with others and agreed the plan was good. The plan was put in order and hand-delivered to the Superintendent’s Chief of Staff on September 16, 2022.
The plan submitted by Sgt. Jenkins can be found by clicking here.
On September 22, 2022, Sgt. Chris Landry (Ret.), Sgt. Drew Williams, Det. Jeremy Wilcox, Claude Schlesinger, Sgt. Willie Jenkins and I met with New Orleans CAO Gilbert Montaño about a number of issues. Since several of us had been involved in discussions with active officers about the anticipated transfer of detectives, we made that the first item on the agenda. CAO Montaño expressed that he thought any moves involving detectives would be temporary and that nobody would lose any pay as a result of these temporary moves. We explained that temporary or not, the special rate of pay for being in a detective assignment would not travel with the officer to a non-detective position.
It can pay off to get involved or share your ideas. In this instance, Sgt. Carroll and the 8th District DIU shared their plans to supplement the platoons without resorting to transfers. We made sure the Superintendent’s Office was aware of that plan.
If the story ended there, it would already have a happy ending. If the plan is implemented by the Superintendent, then it would be an even happier ending. So, thanks to Sgt. Carroll and her Detectives. If we continue to work together, maybe we can change the old saying 1 step forward and 2 steps back to just 2 steps forward. Thanks to Mr. Montaño as well, we can tell when someone is really listening.
I was cutting my grass, listening to the First Thursday podcast. The First Thursday podcast is hosted by Will Aitchison. Once a month, Will talks about legal issues from around the country that impact law enforcement. Will runs the Labor Relations Information System which tracks issues related to collective bargaining and discipline for law enforcement and fire personnel. Will is widely respected and I like to listen to his podcast every month. Will also wrote The Rights of Law Enforcement Officers, which is a fantastic book on many of the issues we attorneys deal with regularly here in New Orleans. I have had the opportunity to meet Will and hear him speak. I am comfortable saying that Will knows what he is talking about.
At about 45:00 into the July First Thursday podcast, Will started talking about a case involving Sgt. Willie Jenkins. I knew that case at once. It was one that Ted and Claude won. The win got Willie 5 days of pay back. We really win more than we should, statistically speaking.
First, and foremost, if you are a commissioned law enforcement officer and you do not belong to the Fraternal Order of Police and the FOP’s Legal Defense Plan, you should arrange to join at your earliest opportunity. The FOP’s Legal Defense Plan is, by far, the best legal plan available for police officers. A description of the FOP’s Legal Defense Plan can be found by clicking here.
The most important thing to do when you learn that you are the subject of an investigation by your employer is to call your trusted FOP attorney. If you do not have an FOP attorney, you can call me (Donovan Livaccari) and I will try to help get you the best representative considering your circumstances.. There is also a list of approved counsel at http://www.fop.net. Administrative cases for the New Orleans Police Department are a little different. You should definitely call me for NOPD administrative investigations.
Should you call if it is a straight forward case that was recorded on BWC? Yes.
Should you call if you are just a witness? Yes.
Should you call if you know for sure you will be sustained? Absolutely yes.
Should you call if you were told there was no need to call? Certainly.
What if you were told the case would be exonerated or unfounded? Yep.
Officers might only deal with their agency’s disciplinary system once in their careers. It is not a part of agency operations that officers are particularly familiar with. Even officers who may consider themselves veterans of the disciplinary system are usually not thoroughly familiar with the procedures applicable to internal investigations.
The FOP also has a benefit available to its members called the Salary Reimbursement Option (SRO). The SRO allows an officer who is not going to appeal a suspension to recoup some, if not all, of what was lost due to the suspension. For example, let’s suppose you got a 1-day suspension for missing court. After discussing the pros and cons of appealing this suspension with your FOP attorney, you decide that an appeal would be a waste of time — you know you were properly subpoenaed on a case you worked on, you missed court, and there are no Police Officer Bill of Rights issues. You and your attorney conclude that the chances of success on appeal are slim, at best. The Salary Reimbursement Option will reimburse you for the 1 day of salary you lost because of the suspension. The SRO rules require that the FOP member be represented by one of the FOP attorneys during the investigation.
The FOP’s Legal Defense Plan allows its members to hire a professional to assist them with a stressful situation that they are probably not completely familiar with. In fact, there is as much misinformation going around regarding the disciplinary process as there is good information, if not more. I have been doing this work as a full time job since I left NOPD in 2008. That 14 years of experience as a full time job. I also worked on disciplinary cases at NOPD for the 4 years between my graduation from law school and my retirement from NOPD.
The fact is that as an FOP member, you are very likely to belong to the FOP’s Legal Defense Plan. Throughout the State of Louisiana, the FOP’s Legal Defense Plan members can sleep a little better knowing that representation is just a phone call away. I haven’t mentioned criminal investigations or civil actions yet, but representation in those matters is also just a phone call away. If you have any questions, feel free to give me a call.
Sometimes witness officers become accused officers. Sometimes cases that are clearly unfounded become sustained for a different reason. These are all good reasons to pick up the phone and call. You don’t have to worry about how busy I am or whether the investigation is worthy of representation. As a member of FOP’s Legal Defense Plan, you are entitled to representation and I am happy to provide it. In addition, calling for representation keeps your options available for things like SRO or appeal. Make the call. If you don’t have my number, ask in roll call. It won’t be hard to find. Just make the call.
I know many of my friends who work for the New Orleans Police Department have questions about the newly announced CAO Policy Memorandum No. 146 that was distributed at the end of last week. I have questions also and I will share the answers to those questions as soon as I can.
CAO Policy Memorandum No. 146 essentially says effective August 30, 2021, no city employee will be allowed to report to a city-owned worksite unless one of the following two conditions is met:
the employee is fully vaccinated. The policy says an employee is fully vaccinated once 14 days has passed after receiving the second of a two-shot vaccine or the one-shot vaccine. Or
the employee has taken two negative tests in the week. Tests must be four days apart. Tests must either be taken in front of a supervisor or the results are time stamped with the employee’s name. Antigen or PCR tests are acceptable.
A worksite is defined as a place where an employee is performing work on behalf of the city and can reasonably be expected to come within 6 feet of other city employees or members of the public.
That is the easy part. There are other questions that prove to be a bit more difficult. How will this be enforced? What will happen if an employee is sent home? How will the employee be carried in payroll? How does an employee register a religious objection? What if an employee has a medical objection? I am working on getting answers to those questions and I will be happy to share them with you all as soon as I can.
Candidates who position improved have negative numbers in the category “How many places did they move?” Candidates who position decreased have a positive number in that category. The biggest move up the list was 27 positions. The biggest move down the list was 30 positions. Candidates whose position on the list improved moved up 9 spots on average. Candidates whose position on the list moved down did so by 11.6 positions.
The Louisiana Constitution addresses how appointments to classified positions are made. I discussed what the Constitution says here. My opinion is that legal action is a possibility. Mayor Landrieu’s administration declared the Civil Service test “falsely objective,” but the new categories being used to analyze candidates for promotion are more falsely objective than the test could ever be. For example, supervisors who completed performance evaluations for candidates brought their own preconceptions, biases, and personal feelings into the mix. Some candidates only worked for the supervisor that completed the candidate’s performance evaluation for a short period of time. For a candidate’s disciplinary history, if a candidate had 1 or 2 sustained complaints at a level A or B, then that candidate got a “Medium” score. If a candidate had a sustained C violation, then the candidate got a “Low” score. They looked at each officer’s disciplinary history for the 5 years preceding the date of the Promotion Committee’s review. The violation Instructions from an Authoritative Source can be a level A, B, or C violation. The date of the Promotion Committee’s review could also be important. People miss deadlines by a day or two every time there is a deadline to miss. The rubric the Promotion Committee used can be found here.
The Fraternal Order of Police Crescent City Lodge #2 challenged the constitutionality of the Great Place to Work Initiative rules on promotions when they were first adopted. Unfortunately, the court found that the rules were not unconstitutional on their face. In other words, the rules could be applied in a constitutional manner. I am expecting to receive additional information that should shed more light on the issue at hand. In the meantime, I encourage all candidates who did not get the score they thought they should have gotten to ask for the grounds of the score. Go to PIB and request a copy of short forms. Call me and we can discuss options.
While promotions to sergeant loomed, I got more calls about this article where Mayor Cantrell announced that all city employees and contractors had to be vaccinated than anything else on Friday, July 30, 2021. The questions have been one of the following two questions: (1) Can they make me get the vaccination? or (2) Can I get a religious exception?
Can they make me get the vaccination?
Can they hold an employee down and stick a needle in his or her arm? No. Without consent, that would be a battery. The real question is “Can they coerce me into getting vaccination?” The answer? Maybe. Yes.
There has been no written policy on mandatory vaccinations promulgated that I am aware of. I imagine there will be a policy forthcoming. It will be imperative to see the policy in order to be able to analyze the requirements. For example, if the policy states that unvaccinated employees will have to wear a mask, engage in social distancing, and get tested for COVID-19 at regular intervals, that would likely be reasonable. If unvaccinated city employees are terminated from permanent, classified positions, that would be much more severe. My guess is that might be too severe. Again, without a policy to examine, it is difficult to analyze.
The courts have allowed mandatory vaccinations in the past. Generally, the analysis will probably be the degree of intrusion versus the legitimate public interest. As of now, the courts in other jurisdictions have been finding in favor of mandatory vaccinations.
The vaccinations are against my religious beliefs. Can they make me get the vaccination?
Again, there is not a whole lot of precedent in this area. However, freedom of religion is one of our country’s most closely held fundamental beliefs. It is first in the Bill of Rights found in the Amendments to the U.S. Constitution. There can be no law restricting the free exercise of religion.
Religious exceptions to vaccination requirements for public employees will almost certainly exist. However, these exceptions will probably be granted conservatively. My guess is that the reason given will have to be reasonable in light of the religion espoused by the employee. I doubt that an employee will be able to start his or her own religion that does not believe in vaccines.
It is really impossible to analyze mandatory vaccinations for public employees in New Orleans right now. Once policies are provided in writing, it will be more possible to provide a useful analysis. Until then, we have limited precedent in other jurisdictions which appear to trend toward allowing mandatory vaccinations.