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Making the Right Decision: The Three Costs of the Non-Scope Option

Posted on Wednesday, February 01, 2012 at 12:00PM
Posted by Andy Schlenker

Your Legal Defense Fund administrative coverage provides a defense to any administrative disciplinary action up through and including the Skelly hearing. Afterward, LDF will only defend those matters that are determined to be within the “scope of employment,” such as allegations of excessive force used during the arrest of a subject. Typically, for those matters deemed to be “non-scope,” like an off-duty DUI, LDF coverage ceases immediately after the Skelly hearing, unless the member association has elected the “non-scope option.”

This non-scope option was implemented many years ago, at the request of the membership. It enables the member association to pay a higher monthly dues amount and provides coverage through the entire administrative appeal process for any matter, regardless if it is found to be within the scope of employment or not. In other words, if the member’s association has chosen the non-scope option, it does not matter whether the member faces an allegation of off-duty domestic violence or an allegation by a supervisor of failure to submit timely reports; LDF will fund the entire administrative appeal through the conclusion of the administrative appeal process, such as a civil service board or arbitration.

The cost of this non-scope option has several components. Most member associations already know that their LDF Plan 1 or Plan 3 rates are dependent upon their association’s usage. This experience rating formula causes the rates to be adjusted each year, based largely upon the association’s prior year’s expenditures of LDF dollars. If the non-scope option is selected, the following costs are also added to this base rate: First, an additional $5.00 is added to the base membership dues; Second, if the association’s rate is already at the “ceiling” — the highest amount of monthly dues as set by the Board of Trustees, regardless of the usage — then the membership rate can be even further increased by as much as $9.00 per member per month; Third, and most important, history tells us that the costs of defending a member through the Skelly hearing typically pales in comparison to the costs incurred by a full administrative appeal.

The process of arbitrations, Civil Service Commission hearings and the like are akin to a trial involving the presentation of evidence and witnesses and often require the use of experts and investigators. Thus, the more frequent administrative appeal hearings encountered by any member association, the more likely that association will have a large usage attributed to the experience-rating formula, causing their rates to increase.

Thus, when you add all the cost components together, the $5.00 fee, the increase in the dues ceiling and the increase in experience, the total amount your association may be paying for this option may likely be much more than the initial $5.00 additional fee.

Anecdotally, we found that associations who call the LDF office to vocalize their concern over their increasing LDF rates, most often have elected the non-scope option. In contrast, those associations who have elected to drop the option have seen a subsequent drop in their LDF rates. Bear in mind, only the $5.00 drop will occur immediately; the drop in experience takes some time to filter into the new rates.

Every member association has the option to add or drop the non-scope option from their LDF coverage. Each member association has to make their own decision whether the non-scope option, with ALL of its related costs, is the right decision for their membership. It should be a fully informed decision.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.