Thursday, January 31, 2013

City files motion to vacate NOPD consent decree, cites federal misconduct

Posted By on Thu, Jan 31, 2013 at 7:36 PM

The New Orleans City Attorney's Office has filed a motion to void the New Orleans Police Department consent decree. The motion was filed late this afternoon, barely making the deadline U.S. District Court Judge Susie Morgan set when she signed the decree on Jan. 11.

Mayor Mitch Landrieu, a strong proponent of 492-point consent decree after it was unveiled last summer, recently changed course, citing the $55 million cost of implementation on top of expected costs associated with the Orleans Parish Prison consent decree, which was preliminarily approved by Judge Lance Africk on Jan. 22. The city indicated it would file a motion for relief when Morgan approved it this month.

The city's motion alleges misconduct on the part of DOJ in three areas, including the involvement of disgraced former Assistant United States Attorney Sal Perricone as a DOJ "point person" during negotiations.

Finally, the city makes a procedural argument, saying the court has denied it the right to withdraw from the consent decree, and noting that the court cannot force it to comply with a consent decree to which it does not consent.

From the city's memorandum in support:

—Failure to Disclose Costs to Fix Orleans Parish Prison (“OPP”) Until After NOPD Consent Decree Executed

With full knowledge of the City’s financial constraints, the DOJ waited until after the NOPD Consent Decree was executed to hit the City with DOJ’s estimate to implement the OPP consent decree.

—DOJ’s Designation of Sal Perricone as the U.S. Attorney’s “Point Person” During the NOPD Consent Decree Initial Investigation and Negotiations

Mr. Perricone attempted to become the Superintendent of Police during the Landrieu administration1 and his subsequent blogging related to Mayor Landrieu, Superintendent Ronal Serpas, the timeliness of the signing of the proposed consent decree, the appropriateness of a court-appointed police monitor, secondary employment (“paid details”), and the need for DOJ intrusion in the reform process. Reports have shown that Perricone was the originator of the comment that the paid detail system was the “aorta of corruption” in the NOPD.2 Such invective in a public forum by the DOJ’s representative who was engaged in the negotiations wholly undermines the integrity of the negotiation process.

—The Consent Decree’s Secondary Employment Provisions May Run Afoul of the Fair Labor Standards Act (“FLSA”)

During the negotiations, the DOJ insisted upon secondary employment provisions in the Consent Decree, which is particularly interesting in light of Mr. Perricone’s extreme focus in his blogs on “paid details.” Even more interesting is the fact that the City had already demonstrated its un-waivering commitment to reforming secondary employment by instituting certain important reforms before it even began negotiations with the DOJ, and secondary employment was not related to the constitutional policing issues the Consent Decree was intended to address.

The issue of whether those provisions are FLSA compliant remained pending and unresolved on January 11, 2013, when the Court reversed course and signed the original Consent Decree which it had previously indicated that it would not sign without modification.

"The city invited DOJ to participate in the reform of NOPD. The city originally believed that DOJ would be a partner with the city to improve the NOPD. This belief no longer exists, and justifiably so," it says.

Reached by email, mayoral spokesman Ryan Berni declined to elaborate on the filing or provide further comment, writing only that the document speaks for itself.

Read the memorandum in support and check back for updates: ConsentMemo.pdf

(Details from the court filings after the jump)

Issue 1: Failure to Disclose Costs to Fix Orleans Parish Prison (“OPP”) Until After NOPD Consent Decree Executed

This one is the most straightforward and likely the city's biggest objection. (Times-Picayune reporter John Simerman's Jan. 11 article, including an interview with Landrieu, makes that pretty clear.) The DOJ was simultaneously negotiating two consent decrees for which the city would have to pay. The city alleges that the feds knew how much the Orleans Parish Prison consent decree might cost but did not reveal it until after the NOPD consent decree was finalized.

From the filing:

One month after the NOPD Consent Decree was signed, the DOJ, for the first time, stated that it believed the City would be required to pay $34.5 million dollars to fund the OPP consent decree. The DOJ then intervened in a class action lawsuit and quickly resolved outstanding issues with Sheriff Marlin Gusman related to conditions at OPP.

Landrieu has said the combined costs of the two agreements could bankrupt the city.

Issue 2: DOJ’s Designation of Sal Perricone as the U.S. Attorney’s “Point Person” During the NOPD Consent Decree Initial Investigation and Negotiations

The city claims that Perricone sought to poison public opinion against the department, even as the consent decree process was unfolding, and that he had an ulterior motive. Namely, the city claims, Perricone wanted to NOPD Superintendent Ronal Serpas' job. The city provided the court a list of police resumes. All other names are redacted but Perricone's.

As a "point person" for consent decree negotiations, Perricone was particularly focused on paid details, and according to the filing, invented the "aorta of corruption" term that would appear in the DOJ's 2011 investigation of the NOPD.

From the filing:

A review of Mr. Perricone’s blogs demonstrates his hidden agenda. When Mayor Landrieu began his search to hire a new Police Superintendent in early 2010, Mr. Perricone was touting his own attributes online and persistently ranting to have the Mayor appoint him NOPD Superintendent:

—“Get a police chief who knows how to fight corruption, Mitch!!!!!!” (legacyusa February 11, 2010 at 9:35 pm)6

—Mitch, put a federal presence in the police department!!!!!!! (legacyusa February 27, 2010 at 10:02 a.m.)

—MITCH: GET LETTEN OR ONE OF HIS BOYS OR GIRLS TO BE THE NEXT CHIEF!!!!!! (legacyusa March 09, 2010 at 4:13 pm)

...

—If we get Serpas, it won't be that much different. Get the FEDs in there now, Mitch. (legacyusa May 01, 2010 at 9:34 a.m.)

—Well it, indeed, looks like he was the choice from day one. All one has to do is read the criteria the mayor wanted—it seemed to be tailored for Serpas.
ps: can you lose some weight. We have enough fat cops in New Orleans. (legacyusa May 7, 2010)


Issue 3: The Consent Decree’s Secondary Employment Provisions May Run Afoul of the Fair Labor Standards Act

Today's filing doesn't specify why the Secondary Employment policies might violate the FLSA, but it does include an exhibit that may shed some light on the city's concerns.

On Sept. 20, Ted Alpaugh, an attorney for the New Orleans Fraternal Order of Police — which had unsuccessfully petitioned to intervene as a party to the decree — sent a letter to Judge Susie Morgan claiming that the provisions of the consent decree overhauling the paid detail system could be a violation of federal labor law.

From the letter:

"It mandates that the system be changed from a private arrangement between the officer and the entity requesting the detail to a system overseen by a new City department. Aside from the questions raised in
our public comments regarding how this relates to constitutional policing and whether it should be in the proposed consent decree at all, it appears from the proposed consent decree that the entity requesting the detail will pay the city who, in turn, will pay the officers (indeed that is what we understand to be the case."

If the city is paying them, they're not off-duty. And if they're not off-duty, the FLSA requires that they be paid overtime on top of their detail pay, Alpaugh argues.

According to the city, DOJ "repeatedly conveyed to the City and the Court that other jurisdictions legally have implemented secondary employment policies" in accordance with the FLSA, but could not provide examples. Furthermore, the feds never sought an opinion on the policy from the Department of Labor, as DOJ attorney admits in an email (submitted as evidence) just this month.

Related: The city also objects to the extensive use of emails and non-public status conferences throughout the consent decree litigation.

"The Court has conducted virtually the entire litigation 'off the record' by emails to the parties and in closed door status conferences without court reporters."

Update: Capt. Michael Glasser, president of the Police Association of New Orleans, which also tried unsuccessfully to intervene, emailed the following statement late Thursday night.

Since the start of the Justice Department's investigation into the NOPD at Mayor Landrieu's request, the DOJ, primarily through former AUSA Sal Perrricone, took the posture that the Paid Detail System was corrupt and needed inclusion into the Consent Decree. Moreover, the City and Police Administration echoed those same sentiments, often describing the system of Paid Details as a "failed system," and corrupt practice which "tears at the fabric" of the NOPD. PANO and the other police labor organizations have argued all along that the criticism of the Paid Detail system was grossly exaggerated and there is no evidence of corruption. The paid detail system in the NOPD actually works remarkably well. PANO, in particular, has warned the City and the Public that Mr. Perricone's evaluation was jaded and flawed, and that the creation of an Office of Secondary Employment was both unnecesary and urged the administration to reevaluate that position.

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