The New Orleans City Council is set to debate two proposed ordinances this week that will drastically change how the New Orleans Police Department's (NOPD) paid detail system works. The ordinances will create a funding mechanism for the new Office of Police Secondary Employment (OPSE). The OPSE will take the management of off-duty security work out of NOPD and into City Hall, making the OPSE the first of its kind in the U.S.
An overhaul of the paid detail system — NOPD's "aorta of corruption," according to a 2011 U.S. Department of Justice (DOJ) investigation of the department — is mandated by the federal consent decree approved earlier this year. Mayor Mitch Landrieu and NOPD Superintendent Ronal Serpas have long identified it as a priority.
Landrieu created the OPSE last year, appointing retired U.S. Army Lt. Col. John Salomone to head it. Under the plan, Salomone's office will collect and disburse detail pay, create and manage off-duty detail contracts, and assign officers to details on a rotating basis. Salomone's office will phase in a new system to manage all off-duty details over the rest of the year, but first it needs to be funded.
One of the two proposed OPSE ordinances creates a new enterprise fund for the office's operations. Another sets a uniform pay rate schedule — based on officer rank — that includes $5 hourly administration fees. A business employing a patrol officer in a security detail would pay $34 per hour to the city. Of that, $29 would be paid to the officer and $5 would be retained by the OPSE.
The city's two largest officers' associations — the Fraternal Order of Police (FOP) and the Police Association of New Orleans (PANO) — have pledged to fight implementation of the new system. FOP attorney Ray Burkart said last week that the city has failed to make its case that the detail overhaul is necessary. And he objected to the use of fees on top of detail pay being used to fund a newly created city office.
"They are shafting the officers and trying to make a dollar off them," Burkart said. "The city just wants a cut."
Burkart says protecting the OPSE revenue stream from being rerouted to the city's general fund (and used for other purposes) would require a City Charter amendment. Mayoral spokesman Ryan Berni disputed that in an email to Gambit.
"One of the ordinances that will go before the City Council sets up a special enterprise fund into which all police secondary employment revenues will flow, and out of which all costs associated with the program will be drawn," Berni wrote. "By law, we cannot arbitrarily remove the money and use it for something else."
Details are a vital source of supplemental income for many officers. Sixty-eight percent of respondents to a 2012 NOPD job satisfaction survey conducted by Tulane University criminologist Peter Scharf reported doing detail work. Eighty-six percent said they were opposed to the Landrieu administration's plan.
Last week, FOP President Walter Powers wrote an open letter to officers, saying recent talk of boycotting security details during the New Orleans Jazz & Heritage Festival — in protest of the city's proposed overhaul of the police paid detail system — is "premature." He called the idea a "nuclear option."
That was the overt message, at least. The letter, posted on the FOP's website, also had the effect — intentional or not — of alerting the media and the administration that the city's police associations were talking about boycotting off-duty security details during major events. The news came just one day before a scheduled April 9 City Council committee hearing on the new detail system, which was subsequently pushed back to April 17.
The boycott idea was initially floated during an April 3 PANO meeting, according to PANO attorney Eric Hessler. The talk concerned not only Jazz Fest — still several weeks off — but also last weekend's French Quarter Festival.
"The French Quarter Festival and other major events offer extra work and extra money to NOPD officers who are not on the city's clock," Berni wrote. "Paid details are privileges. We have worked hard over the past few years to come up with a paid detail reform plan that makes the system fairer and more transparent for all officers as well as the public."
Hessler noted that the group was neither calling for nor urging a boycott, he said. It was merely brought up during discussion at the meeting. Still, Hessler added, "I think that consideration shows a level of frustration with the detail system that's being proposed."
Both PANO and FOP have expressed concerns about adverse impacts to officer pay. Asked how the city arrived at the $5 additional service charge, Berni wrote that the city determined the fee amount after examining 15 departments nationwide with similar centralized off-duty detail systems. (None took details out of their respective police departments entirely, as is proposed here.) The average came out to $4.49, Berni said. Then the city asked local detail customers what they pay officers per hour under the old system. The rate, Berni wrote, represents a shared burden between officers and detail customers.
"Based on the current local averages of customer cost and officer pay, customers end up paying [7 to 10 percent] more than they do now for the hourly officer rate, and officers end up making [5 to 6 percent] less than the average officer hourly pay (both depending on the rank of officer)," Berni wrote. "So one might look at the additional $5 burden as being 'paid' by both the customer and the officer, with the customer's share of $3.33 and the officer's share of $1.67."
Also in question is whether the city — having taken the reins under the new system — would be on the hook for benefits and overtime for detail hours worked. Burkart showed Gambit an April 5 email from FOP attorney Donovan Livaccari to Salomone, asking whether detail pay will be included on officers' regular W-2 forms and whether the city will be liable for injuries while on details. "Should the officers [who are working details] get a 1099 (reflecting independent contractor income) or a W-2 because he's working for the city?" Burkart said.
Berni did not respond to the tax question, but the "Frequently Asked Questions" page on the city's OPSE website says officers will likely be paid via direct deposit on their regular paychecks, subject to W-2 tax accounting. That would suggest to some that cops working details under the new system would be working for the city. If that's the case, Burkart said, federal law requires the city to pay overtime and benefits based on those hours.
"Look at the consent decree. They control everything, just like they would if the officer were on duty," Burkart said. "They're not on their normally scheduled shift. It's more like overtime." In a related development, state Sen. J.P. Morrell, D-New Orleans, has filed legislation requiring the city to include detail pay when calculating NOPD pension benefits and longevity pay increases.
The FOP makes the argument in spite of a February letter from the U.S. Department of Labor, submitted as an exhibit in the federal consent decree lawsuit, indicating the hours would be exempt from overtime. Burkart noted that the letter does not cite examples from case law.
Both arguments — regarding Perricone and potential labor law violations — should sound familiar to the city. Attorneys for City Hall used both when it filed a motion to vacate the consent decree in late January. In fact, the Department of Labor letter was part of the DOJ's response to the city's motion to vacate.
"The inclusion of secondary employment or paid detail provisions in a Consent Decree intended to address constitutional policing was not necessary," reads a memorandum in support of the city's motion, submitted to U.S. District Court by Assistant City Attorney Sharonda Williams. It continues, "Mr. Perricone had a personal viewpoint that permeated the negotiations; the DOJ apparently relied on Mr. Perricone's tainted assessment of paid details in its findings report, which led to its insistence on including secondary employment in the Consent Decree. As this Court is aware, the secondary employment provisions in the Consent Decree have created unforeseen issues and may conflict with the [Fair Labor Standards Act]."
Though he did not respond specifically to either the Perricone or labor law concerns, Berni wrote that the city has been steadfast in its support of detail reform: "Our position has not changed," Berni wrote. "All along, we have said that the paid detail system needs to be reformed and managed."