Tag Archives: Police Officers Bill of Rights

Critical Incidents

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There have already been two critical incidents in 2020. Whether you are inclined to believe these types of things come in 3’s or not, it can not hurt to be prepared. We have Mardi Gras around the corner, and the number of complaints has not declined in any meaningful way in New Orleans. So, better to be prepared.

The FOP Legal Defense Plan performed well, as usual. After receiving the call, I was able to get to the scene in a timely fashion to explain the process to the involved officers. My officers got everything done and are prepared for what’s to come. I made sure they understand that the FOP, in general, and I, specifically, will be with them until the conclusion of the investigation and anything else that potentially flows from the incident. For example, since the officers were placed on administrative reassignment, I made sure they were aware of the benefits provided by the FOP’s Family Fund for which they were eligible.

There were quite a few members of the most recently graduated Academy class who did not join the FOP yet. We thought that was because the recruits were erroneously being told they could not join while they were still in the Academy. Unfortunately, what I learned was that many had joined another organization because they (the other organization) had visited with the recruit class “so many times” that it seemed like the thing to do. Compared to the 15 minutes allocated to the FOP two days before graduation, it makes sense how that comes to be. Now, the FOP’s membership still includes more than 90% of all active police officers. So, history tells us that regardless of organizational affiliation on graduation day, veteran officers choose the FOP and the FOP Legal Defense Plan. I would not work a single day without the FOP’s Legal Defense Plan in my back pocket. There is no downside to exercising the right to counsel guaranteed by the Louisiana Police Officer’s Bill of Rights and the Constitution.

As usual, we are there for you. All you need to do is call, text, or call.

2019 FOP Legal for NOPD

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Each year, I like to take a look back at the preceding year to give the members of the Crescent City Lodge of the FOP an overview of the disciplinary system in New Orleans and the services I provided to members of the FOP Legal Defense Plan. It has been pretty consistent the past few years and this year is no different.

I would like to start by pointing out that every case, whether you are an accused officer or a witness officer is the kind of case you should call me about. I regularly have officers tell me that they didn’t call because they didn’t think it was a big deal or because I might be too busy for them. Unfortunately, this commonly happens after a not so big deal has become a big deal. I have been representing police officers since I graduated from law school. So, I understand that officers don’t always get a whole lot of notice before finding themselves involved in an investigation or being notified of a Civil Service extension hearing. My practice has been built around those types of cases from the beginning.

You are guaranteed legal representation by the Louisiana Police Officer’s Bill of Rights. You should always take advantage of that. Having a legal representative has a number of benefits. First of all, I will make sure your rights as listed in La. R.S. 40:2531 are protected. Hopefully, we can avoid little to nothing cases turning into a big deal. Having an attorney from the FOP Legal Plan also makes you eligible for the Salary Reimbursement Option where the FOP will repay you for up to 5 suspension days in lieu of appealing the disciplinary action. There is no downside to exercising your right to counsel.

I would also like to emphasize that when I represent a police officer through the FOP’s  Legal Defense Plan, The attorney-client relationship exists between me and the officer I represent, not the FOP. So, any privilege exists between me and the officer. Any decisions are made based on conversations between me and the officer. If you are a member of the FOP Legal Defense Plan, we will be there for you. We don’t ask any questions or make any judgments. The FOP does not interfere in my representation of any Legal Plan member. There is no downside to exercising your right to counsel.

In 2019, I represented 412 individual officers in one capacity of another. There were at least 726 PIB control #’s cut by the NOPD in 2019. There were certainly more than that.

In 2019, I represented officers at 237 interviews (statements) with investigators as part of formal disciplinary investigations. I represented officers at 100 pre-disciplinary hearings. I represented officers in 11 Rule 9 hearings, 36 Accident Review Board hearings, and 111 extension request hearings. I represented 13 officers in 5 officer-involved shootings.

I would expect 2020 to look a lot like 2019. Feel free to call and I will be there for you — there is no downside to exercising your right to counsel.

2017 in Review

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At the beginning of the year, I like to review and compare the prior year’s activity with other years. In addition, since there have been so many new hires at NOPD, it always helps to give some context to the system that most officers don’t come into contact with often enough to be familiar with.

The FOP continues to provide the best legal assistance for law enforcement officers through its Legal Defense Plan. The Legal Defense Plan offers its members legal representation for any administrative disciplinary proceeding, civil defense resulting from on-the-job actions, and criminal allegations. There is no judgment involved. If a member requests legal services, they get it.

There is no situation which is too big or too small. The Legal Plan is set up to be able to handle situations that garner national attention. At the same time, we recognize how much law enforcement officers value their service record and we treat the most minor of circumstances with the same attention.

It is most beneficial to everyone when an officer who finds themselves involved in any way in one of the covered types of events contacts us as early as possible. I got a call from someone recently who had resigned under pressure to do so and felt like it shouldn’t have gone that way. I can’t argue with that – I don’t think anyone should be pressured into resigning without at least having the opportunity to meet with counsel. However, this person didn’t call until after he had resigned. As much as I would have loved to be able to help, the act of resigning eliminates almost every avenue of redress. So, call early and stay in touch.

My brother-in-Law, Corey Lloyd, was admitted to the Louisiana Bar in 2017. He had been helping me with Civil Service appeals while he was in law school. Since he is now a certified member of the Bar, he is now available to assist in situations which call for more than one attorney or when calendar conflicts prevent me from being somewhere. It is always nice to have another attorney committed to helping FOP members. He has also been helping FOP members with Family Law issues. The FOP offers a $400 (4 hrs at $100/hr) benefit per year to each member for Family Law issues.

2017

In 2017, I represented 410 individual officers in one capacity of another. That is up a little from 2016’s 398 officers. For those 410 officers, I appeared with FOP members at:

  • 103 disciplinary hearings (up from 83 in 2016)
  • 251 Statements (up from 228 in 2016)
  • 102 Civil Service Extension Request Hearings
  • 17 Accident Review Board Hearings (down from 36 in 2016)
  • 13 Civil Service Appeal Hearings (down from 23 in 2016)
  • 2 Officer Involved Shootings

In addition, I assisted FOP members with:

  • 85 Notary Service
  • 31 Personal Legal Needs
  • 10 Negotiated Settlements

While it appears that complaints were down a little from 2016-2017, it was still a busy year. Improvements were made to the disciplinary system in the penalty matrix and the use of BWC’s to clear complaints. Civil Service appeal hearings are down primarily because more Civil Service appeals were settled amicably before a hearing was necessary. The Personal Legal category refers to legal needs of members that are not covered by the Legal Defense Plan. The FOP offers each member a benefit of 2 hours of legal services per year for things outside of the Legal Defense Plan. This might include wills, living wills, successions, etc. It is separate from the Family Law benefit. Notary services are available to FOP members at no cost. I also continue to serve as Employee Representative for Crescent City Lodge members, helping them to address almost any employment related issues with NOPD.

At Livaccari Law, we also represent officers who have been involved in automobile or motorcycle accidents on a regular basis. My father, Tony Livaccari, heads up that aspect of the practice with more than 30 years of experience. Anyone who has worked with Tony knows that he looks out for FOP members.

I cannot stress enough the importance of picking up the phone and calling. I will respond to the scene of officer involved shootings. We can’t help when we don’t know a member is in need of help. In addition, as noted above, sometimes things happen which preclude our helping in any meaningful way. So, as I stated above, call early on. Nothing is too trivial and I’m not too busy to talk, even if I have to call you back – you can always text.

As I have stated numerous times, I feel as though I am blessed to be able to represent FOP members. I was admitted to the Louisiana Bar after serving 11 years with NOPD. I started representing law enforcement officers, primarily in New Orleans, in 2008 when I retired from NOPD. I still spend the majority of my time representing NOPD members. I do represent FOP members in other jurisdictions in Louisiana and do work for both the Crescent City Lodge and the Louisiana State Lodge. I look forward to doing more of the same in 2018. Additionally, the addition of Corey Lloyd to available counsel will make it easier to do this job better. So, thank you to the FOP Crescent City Lodge, particularly Jimmy Gallagher, who got me involved with the FOP back in 2004. Thanks to Darrell Basco, President of the Louisiana FOP, for allowing me to represent the over 6,000 FOP members in Louisiana. Finally, thanks to you, the FOP members for keeping me on your speed dial.

What types of disciplinary investigations should I contact my #FOP attorney about?

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The short answer to this question is ALL of them.  There is no investigation too simple or straightforward.  Quite often I hear “I didn’t call you because it was just a missing court case” or “I didn’t call you because it was just a BWC case.”  Unfortunately, my response is commonly “Well, one of the rules of the Salary Reimbursement Option is that you have to be represented by one of the FOP attorneys in order to qualify for the SRO.”  What is an SRO you ask?

The FOP Legal Defense Plan includes what is known as the Salary Reimbursement Option (“SRO”).  The SRO allows officers to make up for salary lost as a result of an unpaid suspension.  In New Orleans, the SRO allows officers to recover up to 5 days of suspension at $150 per day.  In other words, when you get a 1-day suspension for missing court, the FOP will pay you $150 if you choose not to file a Civil Service appeal.

Why not file a Civil Service appeal?  Well, that is the benefit of having one of the FOP attorneys on the case from the beginning.  Your FOP attorneys have been handling disciplinary actions for years.  By the end of the investigation, your FOP attorney should be able to give you a pretty good idea of your chances of success on appeal.  So, after a disciplinary hearing, you and your FOP attorney can discuss whether you are better off filing an appeal with Civil Service or submitting the disciplinary letter for the Salary Reimbursement Option.

I deal with disciplinary investigations every day.  Most officers deal with disciplinary investigations 2 or 3 times in a career.  As such, one cannot expect officers to be thoroughly familiar with the ins and outs of being an accused officer in a disciplinary investigation.  What is the legal burden?  What evidence is allowed?  When does the 60-day rule apply?  When does the 60 days begin and end?  Is the disciplinary hearing considered part of the 60 days?  How long after a disciplinary hearing can an officer expect to receive the disciplinary letter or suspension days?  When can I file a Civil Service appeal?  What is this email I received about a hearing about an extension that cannot be continued?

The answers to some of these questions change based on rulings of appellate courts in Louisiana.  The answers to other questions changes based on changes in an administration.  The point is that even if an officer is tasked with completing disciplinary investigations, there are still aspects of disciplinary investigations which are unknown.

As a member of the FOP Legal Defense Plan, an officer is entitled to representation at no cost to the officer.  We do not judge whether or not an officer deserves legal defense.  We do not judge the accused officer.  If you are a member of the FOP Legal Defense Plan and you become the accused officer or a witness officer in an internal disciplinary investigation, your legal representation is guaranteed.  We are there to protect your rights.  Calling your FOP attorney can also make you eligible for the FOP’s salary reimbursement option when you don’t have a chance on appeal.  Call, text, or email today.

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FOP Legal Plan – 2014

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fop_logo1As 2014 draws to an end, I thought I would take this opportunity to say a few things about the FOP Legal Defense Plan.

No other Legal Defense Plan provides as much coverage to law enforcement officers as the FOP Legal Defense Plan.  FOP attorneys are available to FOP members for a variety of needs and are available 24/7.

Going into 2015, I would like to tell FOP members that NO MATTER IS TOO INSIGNIFICANT to take advantage of the services provided through the FOP Legal Defense Plan.  Members are encouraged to call their FOP Legal Defense Plan attorney for anything involving the administrative disciplinary process.  This includes statements (whether accused or witness), disciplinary hearings, Rule IX hearings, Accident Review Board hearings, Civil Service extension hearings, and anything else dealing with the disciplinary process.  No matter is too minor.  Sometimes the most innocuous matters have broader implications.

The FOP Legal Defense Plan also offers a Salary Reimbursement Option (SRO) to its members.  The Salary Reimbursement Option allows members to recover up to five (5) suspension days in lieu of appeal.  YOU MUST BE REPRESENTED BY AN FOP ATTORNEY THROUGHOUT THE PROCESS TO QUALIFY FOR THE SALARY REIMBURSEMENT OPTION.  For example, if you are represented by an FOP attorney in a DI-1 investigation for missing court and you receive a one (1) day suspension.  If, after consulting with your FOP attorney, you decide that your chances of success on appeal are slim, the FOP will reimburse you $150 for your one day suspension.  The FOP Salary Reimbursement Option will cover up to five suspension days at $150 per day.  Of course, if it will be beneficial to file an appeal with Civil Service, your FOP attorney will be able to guide you in the right direction.

In addition to legal representation in the disciplinary process, the FOP attorneys are available to assist officers with a myriad of different issues.  I have helped officers with promotions, injuries, reinstatements, grievances, etc., etc., etc.

The FOP Legal Defense Plan also provides notary services to its members at no cost.

The FOP Legal Defense Plan also provides up to two hours of legal services for any legal matter that would not normally be covered by the Legal Defense Plan.  For example, wills, power of attorney, divorces, etc.

Finally, we have also assisted many officers in legal cases involving automobile accidents, motorcycle accidents, and other types of personal injuries.  The firm of Livaccari Villarrubia Lemmon, LLC consists of myself and my father.  My father has been practicing personal injury law for over thirty years, initially representing insurance companies and for the past 20+ years representing plaintiffs in personal injury actions.  The benefit of working with an attorney who you know and trust can not be overstated.

My phone number is widely available and is on your membership card.  As a former police officer, I feel as though I am able to provide a unique understanding and knowledge-base when handling matters involving members of the FOP.

Livaccari Villarrubia Lemmon, LLC
101 W. Robert E. Lee Blvd.
Suite 402
New Orleans, LA 70124
504-488-3702

 

Going back through 2014, I, as an FOP attorney represented 382 individual police officers (roughly 30-35% of all New Orleans Police Department officers) through the FOP Legal Defense Plan in the following capacities (figures are slightly underestimated):

Accident Review Board – 36
Disciplinary Hearings – 72
Recorded Statements – 213
Rule 9 Hearings – 23
Notary Services – 95

Formal Disciplinary Investigations (#NOPD DI-1)

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IMG_1309-0Periodically, I like to take a moment to make sure people are up to speed on the status of formal disciplinary investigations for NOPD and the benefits provided by the FOP Legal Defense Plan.

The federal consent decree entered into by the City of New Orleans and the Dept. of Justice requires that complaint classification be “allegation-based” as opposed to “outcome-based.”  That has been interpreted to mean that whatever the allegation is, even if it is extraordinarily unlikely or impossible, that allegation will be investigated.  While I disagree that the consent decree requires a full, formal investigation into every allegation, the current interpretation results in that conclusion.  The end result is that every complaint, no matter how insignificant, is likely to result in a formal disciplinary investigation.

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The End of #NOPD Disciplinary Investigations #FOP #FOPNO

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Don’t get the wrong idea.  NOPD is still conducting disciplinary investigations.  I am also not addressing the end of a disciplinary investigation for the purposes of the Police Officers Bill of Rights.  This is about how disciplinary investigations effect promotions and impact a decision to retire or resign.

It is pretty clear when an investigation begins.  There is a date on the DI-1 which initiates the investigation.  A better question is when the investigation ends.  Part of the problem is that there are numerous signals which can be misinterpreted.  For example, the NOPD likes to have officers sign for a form entitled “Notice to Law Enforcement Officer Under Investigation of Pre-Disciplinary Hearing or Unfounded or Unsustained Disposition.”  The NOPD takes the position that this form signals the end of the investigation for purposes of the Police Officers Bill of Rights.  The problem is that this form only contains the investigator’s recommended disposition.  Only the Superintendent of Police, as the appointing authority, can make a final call on a disposition.  In addition, the date on the form for a disciplinary hearing is a date selected by the investigator based on some system.  The investigator really has no involvement in setting the hearing date and is only involved in the hearing if the hearing officer wants to have them as a witness.  The Police Officers Bill of Rights discussion on this matter is a complicated one.  Since this is not the purpose of this article, suffice it to say that this does not signal the end of the investigation for the purpose of promotion or RUI status (even if the allegations are found to be not sustained, unfounded, or exonerated).

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Disciplinary Letters, Civil Service Appeals, and SRO #NOPD #FOP #FOPNO

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The culmination of the disciplinary process within the New Orleans Police Department consists of a phone call one day, when you least expect it, instructing you to appear at the Public Integrity Bureau to sign for a disciplinary letter.  The disciplinary letter is a letter on departmental letterhead, signed by the Superintendent, which lays out the alleged cause justifying the discipline, the rules allegedly violated, and the imposition of the final discipline (suspension, letter of reprimand, etc.).

While this is the end of the line for the NOPD’s disciplinary process, it is not the end of the line for classified employees or FOP members.  You have a number of options available to you at this point.

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Sample Force Statement #FOP #FOPNO #NOPD @fopno @louisianafop

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FORCE STATEMENT

I have been ordered to write this Force Statement by Sgt. FIT Team. Completion of this Force Statement is also required by NOPD Operations Manual PR300.6.1. Had I not been ordered to draft this document, I would have asserted my right to remain silent as guaranteed by the 5th Amendment of the U.S. Constitution. In addition, although I have not been advised as such, I am aware that LSA 40:2531(b)(5) makes administrative statements rendered in administrative investigations, such as this use of force investigation, inadmissible in any subsequent criminal proceedings. However, since this statement is being compelled and I would be fired for failing to comply with these orders, I am rendering the below involuntary statement with regard to the events of 01-01-2014 documented under NOPD Item # A-12345-14:

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