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Fire and Police Personnel Reporter
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2002 FP Mar (web edit.)
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CONTENTS

Featured Cases with Links
Collective Bargaining - In General
Collective Bargaining - Duty to Bargain (2 cases)
Defamation
Disability Rights & Benefits - Heart Presumption Laws
Disciplinary Evidence - In General
Disciplinary Procedures - Delays & Time Limits
Domestic Partner Rights (2 cases)
Homosexual & Transgendered Employee Rights
Privacy Rights (2 cases)
Race Discrimination - Disparate Discipline
Untruthfulness & Resume Fraud

Noted in Brief

Disciplinary Appeals
Disciplinary Offenses - In General
Handicap Laws and Abilities Discrimination - In General
Impasse Arbitration
Taxation (2 cases)

Resources

Cross_References

FEATURED CASES
WITH LINKS TO THE OPINIONS

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Collective Bargaining - In General

Ohio appeals court enforces arbitration award confirming a bargaining agreement between the union and the sheriff, which the county commissioners had refused to sign.

A union of deputy sheriffs and sergeants sued to enforce an arbitration award in their favor after the county commissioners refused to sign a bargaining agreement agreed to by the sheriff. The sheriff then laid off 42 officers. A three-judge appellate panel has confirmed the arbitrator's award, which ordered reinstatment of the furloughed officers.

FOP v. Halleck, #99-CO-71, 143 Ohio App.3d 171, 757 N.E.2d 831, 2001 Ohio App. Lexis 2123 (7th Dist. Ohio. App. 2001).

» Click here to view the opinion on AELE's website.

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Collective Bargaining - Duty to Bargain

Ohio appeals court holds that a city had to bargain before increasing the number of eligible captains and firefighters who qualify for promotions.

At the time the bargaining agreement was adopted, only line captains were eligible for promotion to assistant chief and firefighters needed four years of experience to qualify for promotion to captain.

The city's Civil Service Cmsn. unilaterally changed the requirements to allow inspector-captains to qualify for the assistant chief position, and reduced the service time for firefighters seeking promotion to captain to two years. The union demanded arbitration and the city refused. A trial court sided with the union, and the city appealed.

A three-judge appellate panel has affirmed. Promotions are related to the wages, hours, and terms and conditions of employment and are properly included in Ohio collective bargaining agreements.

Steubenville Firefighters L-228 v. City of Steubenville, #00 JE 5, 2001 Ohio App. Lexis 4527 (7th Dist. Ohio App. 2001).

» Click here to view the decision on AELE's website.


« « « « « « » » » » » » »

FLRA affirms an arbitrator's ruling that a federal employer was not required to bargain over a unilateral implementation of penalties for computer security violations.

The arbitrator had concluded that a new Table of Penalties for computer violations did not violate a bargaining agreement requirement predicating discipline on "just cause" and "progressive discipline."

Social Security Adm. and AFGE-GC, #0-AR-3381 , 2001 FLRA Lexis 110, 57 FLRA No. 85 p. 459 (FLRA, 2001).

» Click here to view the decision on the FLRA website.

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Defamation

California appeals court strikes down a law that allowed peace officers to sue citizens for knowingly making a false complaint of misconduct.

After a California motorist pled guilty to reckless driving with the consumption of alcohol, he filed a complaint against the arresting officer. He claimed that the officer had used profanity, had threatened violence and jail if he did not take a blood test.

The officer was exonerated, asked on a tape recording he had made. He then sued the citizen for defamation. Generally, official complaints about public employees, even if intentionally false, cannot be the subject of a law suit by the employee. Because citizens are encouraged to report misbehavior, their complaints are privileged.

The California legislature created an exception for peace officers. Civil Code §47.5 (1982) allows an officer to sue for defamation against if the misconduct complaint is "false, the complaint was made with knowledge that it was false and that it was made with spite, hatred, or ill will."

Two federal trial courts have ruled the law is unconstitutional, because there is no supportable reason for treating peace officers differently than other public officials or employees.

A three-judge appeals panel noted that the "deterrence of false complaints against law enforcement officers which might inhibit them in the vigorous performance of their duties" is a properly intended purpose, but did not outweigh the "competing interest" of encouraging claims of possible police misconduct.

Although "it is distressing and demoralizing for police officers to be subjected to false accusations of brutality, but that may be one of the crosses that a police officer must bear, in light of the power and deadly force the state places in his hands."

The panel noted that "no state other than California has elected to single out defamation of peace officers for disparate treatment." The statute was found to be unconstitutional on its face.

Walker v. Kiousis, #E029822, 93 Cal.App. 4th 1432, 2001 Cal. App. Lexis 2584, 114 Cal.Rptr.2d 69, 01 C.D.O.S. 10003 (4th Dist.).

» Click here to view the court's decision on the AELE website.

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Disability Rights and Benefits:
Heart, Lung and Presumption Laws

Maryland's highest court disallows a city the opportunity to challenge, with expert testimony, the factual basis for a statutory presumption that heart disease of a police officer or firefighter is not job-related. Testimony must be specific to each claimant.

Like many states, Maryland has a law that creates a presumption that heart disease, if contracted by a police officer or firefighter, is job-related. In this case, management attempted to present medical testimony that there was no correlation between occupational stress and heart disease.

The city hired a cardiologist who was of the opinion that risk factors, such as family history, the male gender, diabetes, high cholesterol, hypertension and smoking were the primary factors relevant to heart disease. The officer, who after bypass surgery sought a disability pension, had family history of heart disease, was male, had elevated cholesterol and was a smoker.

The trial court excluded the expert's testimony; an intermediate appellate court affirmed that action. Maryland's highest court has agreed, 7-to-0.

An employer may offer expert testimony that a claimant's heart disease was not attributable to his occupation but to some other cause. But that evidence must be particular to the claimant, and not a general denial of the presumption. Challenging the statutory presumption does not assist a jury in determining compensability.

The statutory presumption is not irrebuttable, but the burden of proof and persuasion is on the employer. The city's expert was of the opinion that "there is no correlation whatever between occupational stress and heart disease." Such a viewpoint "could hardly assist the jury" and "could only serve to confuse the issue and mislead the jury."

City of Frederick v. Shankle, #24 Sept. Term 2001, 785 A.2d 749, 2001 Md. Lexis 934 (2001).

» The court's opinion is available in WordPerfect or PDF format.

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Disciplinary Evidence - In General

Iowa Supreme Court upholds an order for a security chief to submit to a voiceprint to confirm that he made an obscene phone call. A state law prohibiting the use of polygraph examinations did not apply.

A hospital security chief was fired for refusing to submit to voice print analysis after he was suspected of making an obscene phone call to a coworker.

He sued for defamation, negligent investigation and wrongful discharge.

First, he claimed that the order to submit to a voice print analysis violates the "letter or spirit" of a state law that prohibits an employer from requiring a polygraph examination as a condition of employment. The court noted that a polygraph, under Iowa law, is "any procedure which involves the use of instrumentation or a mechanical or electrical device to enable or assist the detection of deception, the verification of truthfulness ... or similar test."

The Iowa Supreme Court noted that voice print analysis does not assist in the detection of deception. The statute allows an employer to use "identification techniques such as comparison of photographs, fingerprints or voice prints."

As for the negligent investigation allegation, the justice said the claim would create an exception to the rule of at-will employment.

The defamation count rested on the fact that a security officer escorted him out of the building, following his suspension. The justices rejected the claim, noting that if a terminated employee is simply escorted from his place of employment, without words or other conduct, is not defamatory, citing Bolton v. Dept. of Human Services, 540 N.W.2d 523, at 525 (Minn. 1995).

The employer's decision to terminate the plaintiff for failing to cooperate in an investigation was not wrongful; he was an at-will employee.

Theisen v. Covenant Medical Center, #105/99-0533, 636 N.W.2d 74, 2001 Iowa Sup. Lexis 205, 18 IER Cases (BNA) 114, 39 (1940) G.E.R.R. (BNA) 1346 (Iowa, 2001).

» Read the Theisen decision on the FindLaw or Iowa Bar websites.

Editor's Note: As reported in our March, 2001 issue, a federal appeals court in Chicago upheld a damage claim for emotional distress arising from the harsh treatment of a public employee at the time he was dismissed. He was forced to clean out his office, under a monitor's supervision, while his subordinates watched the event.

The plaintiff was summarily fired from his city job as a department head. The new mayor had him escorted by a monitor to remove his personal effects. Employees gathered around, some of whom laughed at him. Alston v. King, #99-3224, 231 F.3d 383, 2000 U.S. App. Lexis 27428 (7th Cir. 2000).

» To read our prior article on Alston's emotional distress claim, click here.

» To read the Alston v. King decision on the FindLaw site, click here.

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Disciplinary Procedures - Delays & Time Limits

Appellate court reverses disciplinary action against an officer who allegedly engaged in a sex act in a public restroom, because management delayed serving him with formal charges. The union contract required action within 60 working days after his acquittal of criminal charges.

An Ohio police officer was arrested for public indecency involving a sexual act with another man in a public restroom. The officer's story differed from the story of the detective who arrested him and a sergeant who investigated the incident.

The accused officer said an unknown man "grabbed him so fast and put his dick in his mouth that he didn't know what was going on." The other man fled the scene and was never apprehended.

A jury acquitted the officer of the public indecency charges. Management proceeded administratively, and a Civil Service Board found him guilty of public indecency and making false statements. It imposed a 35-day disciplinary suspension.

A three-judge appellate court reversed and remanded the case back to the civil service board. Although they declined to disturb a finding that the officer engaged in an indecent act, the bargaining agreement required the city to institute disciplinary proceedings within 60 working days of the termination of any criminal proceedings.

Formal disciplinary charges were not served on the officer for more than 13 weeks after the contractual time limit had expired. Because the Civil service Board failed to address the delay, the decision was reversed and the case was remanded.

In the Matter of Piper, #18336, 142 Ohio App.3d 765, 757 N.E.2d 3, 2001 Ohio App. Lexis 2209 (2d Dist. Ohio App. 2001).

» To read the decision on AELE's website, click here.

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Domestic Partner Rights

Congress funds domestic partner benefits for D.C. public employees.

Although the Health Care Benefits Expansion Act of 1992 authorized benefits for the domestic partners of D.C. public employees, the Congress blocked funding for nine years. H.R. 2944, the District of Columbia Appropriations Act, passed the House (302 to 84) and the Senate by (79 to 20) on Dec. 7, 2001.

Registered domestic partners may subscribe to health insurance (at their own expense); public employees may take sick leave to care for a domestic partner or bereavement leave to make funeral arrangements. D.C. Health care facilities in the district must allow domestic partner visitation rights.

A domestic partner may be of the same or opposite gender of the public employee.

By statute, Connecticut (2000) and Washington (2001) allow benefits for same-gender couples. California allows benefits for the same-gender over age 18 and opposite gender over age 62 (2001). Maine (2001), New York (1995), Oregon (1998), Rhode Island (2001), Vermont (1994) allow benefits for same and opposite gender partnerships.

« « « « « « » » » » » » »

Anchorage court refuses to order domestic partner benefits for Alaska public employees.

The Alaska Civil Liberties Union filed suit in behalf of a gay male couple and eight lesbian couples, seeking health insurance and pension benefits for their domestic partners. At least one partner works for the state or the City or Anchorage.

A Superior Court judge has ruled that same-sex couples are not being singled out for discrimination because unmarried opposite-sex partners also are not eligible for marital benefits. Neither is entitled to city or state benefits under current law and the city's and state's refusal to provide the benefits to same-sex couples does not violate equal protection clause of the state constitution.

Alaska Civil Liberties Union v. State of Alaska, Superior Court, 3rd Judic. Dist. (16 Nov. 2001).

» The court's order was unpublished. The ACLU complaint is on the AELE website.

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Homosexual & Transgendered Employee Rights

Minnesota's Supreme Court reverses a ruling that an employer must allow a transvestite to use the restrooms of his or her choice. Restricting access to restrooms by biological gender is not sexual orientation discrimination.

Female coworkers objected to the plaintiff, a biological male, using the women's toilets. To complicate matters, in 1995 a Texas court had granted the plaintiff's petition for a name and gender change "from genetic male to reassigned female," apparently without requiring reassignment surgery. Justin thus became Julienne.

To avoid potential claims from distressed female workers, the personnel office ruled that restroom use would be according to biological gender and that Julienne must use a single-occupancy restroom on a different floor or in another building.

Julienne refused to comply with the restroom use policy and was threatened with disciplinary action. Although she was offered a promotion, with a substantial salary increase, if she accepted a transfer -- she resigned, citing job-induced stress and hostility.

She sued the employer for maintaining a hostile environment in violation of state discrimination laws. The trial court ruled for the employer, but a three-judge appeals panel reversed, concluding that she had established a prima facie sexual orientation discrimination claim and had alleged a hostile work environment claim sufficient to preclude a summary judgment. See 619 N.W.2d 424, 2000 Minn. App. Lexis 1152 (2000).

The state's Supreme Court has reversed. State law "neither requires nor prohibits restroom designation according to self-image of gender or according to biological gender."

The justices said that although an employer "may elect to offer education and training" as an alternative, "it is not for us to condone or condemn the manner in which [the employer] enforced the disputed employment policy."

Her hostile work environment claim was predicated on allegations that she "was the subject of scrutiny, gossip, stares, glares and restrictions on the use of the restroom near her workstation" because of her sexual orientation. The restroom policy, said the justices, was not based on sexual orientation and that claim must fail.

Goins v. West Group, #CX-00-706, 635 N.W.2d 717, 2001 Minn. Lexis 789 (2001).

» Click here to view the decision on AELE's website.

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Privacy Rights

Federal court in Ohio excuses a city from damage liability for releasing personal information about named undercover police officers, but also issues an injunction, requiring officials to notify the officers about future informational requests.

As previously reported [May, 1998 issue], three undercover Ohio police officers were actively involved in a street-gang drug conspiracy investigation. During a criminal trial, defense counsel obtained from city officials, without a court order, the plaintiffs' personnel and pre-employment files. At least one of these files was passed on to several of the defendants. The city also voluntarily released a file to a civil rights organization investigating possible discriminatory practices by the City.

The officers sued the city in federal court for damages and injunctive relief. The trial court found that in light of the gang's propensity for violence and intimidation, the release of the files created a serious risk to the personal safety of the plaintiffs and the relatives named in those files. However, the judge concluded the officers lacked a constitutionally-protected right to privacy and ruled for the City.

On appeal, a three-judge said:

"We hold that the officers' privacy interests do indeed implicate a fundamental liberty interest, specifically their interest in preserving their lives and the lives of the their family members, as well as preserving their personal security and bodily integrity. ... where disclosure.. [to] persons likely to seek revenge upon the officers... the City created a very real threat to the officers' and... family members' personal security... and possibly their lives.

"... the City's disclosure of this private information... to defense counsel... rises to constitutional dimensions, thereby requiring us... to balance the officers' interests against those of the City. ... we hold that the City's actions placed the officers and their family members in `special danger'... [to their] personal security. Anonymity is essential to the safety of undercover officers investigating a gang-related drug conspiracy... especially where the gang has demonstrated a propensity for violence. In affirmatively releasing private information... [the City impaired] the personal safety of the officers and their family members..."

The panel said the officers "are entitled to notice prior to the release of any information contained in their personnel files that has the potential to compromise the personal security of the officers and their family members.'' Kallstrom v. City of Columbus, #96-00124, 136 F.3d 1055, 1998 U.S. App. Lexis 1941, 1998 FED App. 0055P, 13 IER Cases (BNA) 1202; reh. den. 1998 U.S. App. Lexis 10896 (6th Cir.)

» Click here to read the 1998 opinion on the FindLaw site.

On remand, the officers had less success. Ten news organizations had intervened after the city denied their request to see the officers' personnel files. The District Judge said:

"Plaintiffs have failed to provide any potentially admissible evidence to suggest that the release of any information contained in the three personnel files may place any of the plaintiffs at any risk of serious bodily harm. Nor have they identified a current "perceived likely threat." This is fatal to their claims. By not identifying any real potential danger that could arise from the release of information in their personnel files, plaintiffs have failed to make a showing sufficient to establish the existence of an element essential to their case for which they carry the burden."

Home addresses, he said, are part of the public domain. "Anyone with an individual's name and either Internet access or the initiative to visit a local government office can scan county property records, court records, or voter registration records for such information... "

Moreover, the appellate court was under an erroneous impression that uncensored information already had been disclosed. In fact, the city had redacted home addresses and phone numbers. The city was entitled to a summary judgment.

The court did issue a "limited" injunction, requiring the officials to notify the officers "of a request for their addresses, phone numbers, and copies of their drivers' licenses, or the names, addresses, and phone numbers of their family members, prior to releasing this information," so that the officers could seek judicial intervention. Kallstrom v. City of Columbus, #C-2-96-00124, 165 F.Supp.2d 686, 2001 U.S. Dist. Lexis 16315 (S.D. Ohio).

» Click here to view the court's decision on the AELE website.


« « « « « « » » » » » » »


A divided Federal Labor Relations Authority holds that an arbitrator may award damages to a federal employee for Privacy Act violations.

A civilian DoD employee's personnel file was viewed by a nonsupervisory coworker. The Air Force admitted that the coworker was improperly designated as an acting supervisor and should not have been given custody of grievant's personnel file.

The union had asked that the grievant's performance appraisal score be summarily increased and that the arbitrator award the statutory $1,000 violation as damages. The arbitrator ordered a reappraisal but declined to award damages.

The FLRA split 2-to-1. The "proper maintenance of personnel records by agencies is an aspect of the working conditions of employees, and the Office of Personnel Management has issued regulations recognizing that the Privacy Act governs proper maintenance of those records," citing 5 C.F.R. Part 293, pp. 85-98.

The majority also interpreted the Supreme Court's opinion in West v. Gibson, #98-238, 527 U.S. 212, 79 FEP Cases (BNA) 1537 (1999), as authority to award liquidated damages in grievances.

AFGE L-987 and Air Force Materiel Command, Robins A.F.B., Ga., #0-AR-3324, 57 FLRA No. 97 p551, 2001 FLRA Lexis 122, 39 (1937) G.E.R.R. (BNA) 1268 (9/28/01).

» Click here to see the decision on the FLRA website.

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Race or Sex Discrimination - Disparate Discipline


Federal court dismisses a 1983 suit against the chief and another, alleging that criminal charges were maliciously brought against two police employees who were charged criminally with the misuse of computers.

Two civilian employees were charged criminally with "misuse of their computers at work to conduct unauthorized searches within the police department computer system." The charges were later nolle prossed.

They sued the county and superiors for racially disparate treatment, claiming that "it was a common practice for employees to use the computer for non-police related activity and that no other employees faced criminal charges." The judge dismissed the claims because the plaintiffs failed to allege a seizure under the Fourth Amendment, or to articulated how the defendants were involved.

Lyles v. Montgomery Co., #DKC 2000-2021, 162 F.Supp.2d 402, 2001 U.S. Dist. Lexis 18950 (D. Md. 2001).

»Click here to view the opinion and order on the AELE website.

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Untruthfulness & Resume Fraud

Arbitrator upholds the termination of an officer who lied about having sex in a police car while on duty.

An Ohio police officer was fired for misconduct and untruthfulness. He was accused of, and denied having sex on two occasions, while on duty and in a police car, with an off-duty woman officer. The woman officer passed a polygraph exam and the accused officer declined to take the test.

He also allegedly approached a young girl for the purpose of seducing her and misrepresented their relationship.

The arbitrator sustained the officer's termination, saying:

City of Cuyahoga Falls, Ohio and Fraternal Order of Police, FMCS #010302/007108-6, 116 LA (BNA) 545 (2001).

»Click here to view the court's decision on the AELE website.

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NOTED IN BRIEF
(SOME WITH LINKS)

Disciplinary Appeals
Wisconsin Supreme Court interprets statutes providing judicial review and collective bargaining to allow a terminated public employee to appeal to the courts, or force binding arbitration -- but not both. Eau Claire Co. v. Teamsters L-662, #98-3197, 2000 WI 57, 235 Wis.2d 385, 611 N.W.2d 744, 2000 Wisc. Lexis 397.

Disciplinary Offenses - In General
Pennsylvania State Police sergeant is suspended without pay for allegedly auctioning police equipment on the eBay Internet site; items included radar guns and riot helmets. "Pa. Police Commander in Online Scam," Associated Press, Dec. 20, 2001.

Fair Labor Standards Act - 7K Exemption
Fire dept. paramedics and emergency medical technicians were not exempt from overtime compensation (until they exceed 53 hrs. per week) as "firefighters," as they did not qualify for the 207(k) exclusion. Vela v. City of Houston, #00-20770, 2001 U.S. App. Lexis 26779 (5th Cir. 2001).

Handicap Laws and Abilities Discrimination - In General
Termination of a service technician for excessive work absences was a legitimate, nondiscriminatory and nonpretextual reason, in spite of his medical conditions (immune deficiency and clinical depression). Van Campen v. IBM, #1-00-2155, 2001 Ill. App. Lexis 924 (Ill. App. 2001).

Impasse Arbitration
Special impasse legislation for New York City's police officers and firefighters is constitutionally valid. PBA of City of N.Y. v. N.Y. State PERB, #3 No. 171, 2001 N.Y. Lexis 3813, 2001 NY Int. 149 (N.Y. 2001).

Taxation
A successful plaintiff in a federal age discrimination lawsuit is responsible for paying taxes on the amount of attorney's fees awarded. Sinyard v. Cmsnr. Internal Rev., #99-71369, 268 F.3d 756, 86 FEP Cases (BNA) 1417, 2001 U.S. App. Lexis 20886 (9th Cir.); affirming T.C. Memo 1998-364, 1998 Tax Ct. Memo Lexis 365 (Tax Ct. 1998). (.pdf format).

A state income tax law that taxes mandatory contributions by federal employees, but does not tax similar contributions of state and local employees does not violate the federal law prohibiting discriminatory taxation against federal workers, 4 U.S. Code §111. Kerr v. Killian, #1-CA-TX-00-0023, 32 P.3d 408, 2001 Ariz. App. Lexis 122 (Ariz. App. 2001). (.pdf format).


RESOURCES

The U.S. Dept. of Labor's Veterans Employment and Training Service has a website explaining the 1994 Uniformed Services Employment and Reemployment Rights Act.

CROSS REFERENCES

Arbitration Procedures - see Featured Cases: Collective Bargaining - In General
and Privacy Rights (2d case)
Damages & Remedies - see Featured Cases: Privacy Rights (2d case)
Disciplinary Offenses/Punishment - Sexual Misconduct - see Featured Cases: Untruthfulness.
Disciplinary Searches - see Featured Cases: Disciplinary Evidence - In General.

Return to the Contents menu.
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Access the multiyear Employment Law Case Digest
List of links to court websites
Report non-working links here.

© Copyright 2002 by Fire and Police Personnel Reporter
Contents (or partial contents) may be downloaded,
stored, printed or copied by, or shared with, employees of
the same firm or government entity that subscribes to
this library, but may not be sent to, or shared with others.