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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.”
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Gambit > bestofneworleans.com > aPRiL 16 > 2013
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.”
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