Arbitrator rejects the defense that a terminated jail officer was only a high school graduate and could not be expected to understand a rule prohibiting association with current and ex-inmates. A disparate punishment claim also was overruled.

     A detention officer was warned that he violated an agency rules that prohibit favoritism to, or association with, inmates. He had escorted an inmate, a former detention officer, to make an after hours phone call from the jail.

     In spite of the warning, a week later the officer went to the jail and took the inmate to his home, following his release from custody.

     The officer was terminated for violation of the "no association" rules and for insubordination. His grievance went to arbitration where he claimed:

     1. He has only a twelfth grade education and the two sergeants did not fully explain the association rules to him -- they simply required him to read them. The fact that he escorted the released inmate proves that he didn't think it was wrong.

     2. The no association rule does not apply when officers are off duty.

     3. Three other employees who had associated with inmates and were not terminated, and that he received disparate punishment.

     The arbitrator rejected all three defenses, saying that it was difficult to comprehend that "after being told by three supervisors that the grievant should not associate with an inmate, that the grievant did not understand that escorting the incarcerated individual upon his release was not permissible."

     He noted that the grievant "appeared to be an intelligent and articulate individual" and that "the no association rule is clear and unambiguous."

     He then dismissed outright any notion that rules, which affect the safety of a correctional facility, do not apply when an officer is off duty.

     Finally, the claim of disparate treatment must fail because there were factual distinctions. The other officers did receive disciplinary punishment, and none of the conduct in those cases occurred "in close proximity to the individuals being told not to repeat the offense."

     El Paso County Sheriff's Dept. and Individual Grievant, 117 LA (BNA) 1304, AAA Case #70-390-00110-01 (Moore, 2002).

     • Click here to read the award on the AELE website.

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Pennsylvania Supreme Court holds that the State Police did not commit an "unfair labor practice" when it unilaterally ceased to provide pretermination hearings for probationary troopers, despite a past practice of holding hearings. Because the State Police has the discretion to summarily dismiss probationary troopers, there is no rational relationship between the hearings and the terms and conditions of employment.

     In 1984, the Pennsylvania State Police began providing pretermination hearings for probationary troopers charged with poor performance. In 1993, the State Police extended that right to include hearings for probationers charged with other disciplinary misconduct. In 1995 it ceased providing the hearings to probationary troopers.

     The Troopers Assn. filed an unfair labor practice charge with the state's Labor Relations Board. A hearing examiner noted that an employer generally will be found to have committed an unfair labor practice when it unilaterally alters a bargainable "term and condition of employment," as compared to a changing a matter that is a "managerial prerogative," that is not subject to mandatory bargaining.

     On review of the evidence, the hearing examiner found that the implementation, over a substantial period of years, of pretermination hearings, constituted an enforceable past practice on the part of the State Police that was changed when the procedure was eliminated.

     The hearing examiner said that pretermination hearings are a matter of procedure, as opposed to substance, and concluded that the hearings are related to the terms and conditions of employment and were not a managerial prerogative. The Board confirmed the decision.

     The State Police appealed, an intermediate appellate court reversed, finding that there was no rational relationship between pretermination hearings for probationary troopers and bargainable terms and conditions. The state's Supreme Court, with one dissenting vote, entered a summary order affirming the appellate court, without writing a new opinion.

     The dissenting justice believed that probationary troopers should not "be deprived of the benefit of such terms/conditions protections as are expressly made available to all [other troopers under the state's bargaining laws]." Penn. State Police v. Penn. Labor Relations Bd. ex rel. Penn. State Troopers Assn., #162 MAP 2001, 810 A.2d 1240, 2002 Pa. Lexis 2427, 171 LRRM (BNA) 2633 (Pa. 2002).

     • Click here to read the Order of affirmance (no opinion written); click here to read the dissenting opinion. [PDF]

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Arbitrator refuses to order management to produce witnesses, and to subject them to cross-examination, at a pretrial Loudermill meeting.

     A bargaining agreement between an Ohio sheriff and the union provided that for any discipline longer than a three-day suspension, the sheriff must provide "a pre-disciplinary hearing which will be conducted within five days following notification."

     The union sought to compel command officers to attend and be cross-examined at the pre-discipline meeting. Knowing what material witnesses will say could assist the union in determining which cases to arbitrate. Additionally, a management witness would be asked about matters that occurred days earlier, instead of months ago at an arbitration hearing.

     The union also claimed that a grievant's constitutional right to call witnesses implies that all employees must be made available at the initial hearing.

     The arbitrator noted that in Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) the Supreme Court said that a public employee is entitled to receive oral or written notice of the charge, an explanation of the employer's evidence and an opportunity to present his side of the story -- and nothing more.

     He concluded that pre-disciplinary hearing now offered by the sheriff conforms to the requirements of the Loudermill case. Management is not required to produce witnesses, or subject them to cross-examination, at a pre-hearing procedure. The grievance was denied. Cuyahoga Co. Sheriff and Ohio PBA, FMCS Case #01/(0913)-16089-6, 117 LA (BNA) 1438 (Skulina, 2002).

     • Click here to read the award on the AELE website.

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New governor of Illinois, who campaigned on a platform of restoring honesty to state government, has issued three executive orders creating an Office of Inspector General, mandating ethics training, and strengthening whistleblower laws.

     In his first week in office Gov. Rod Blagojevich [bla-goya-vich] proclaimed a new era in honesty -- and issued three Executive Orders. One order created the Office of Inspector General and an ethics hotline. The I.G. will investigate complaints of misconduct by any of the 40,000 executive branch state employees and officers, in response to a complaint or on the I.G.'s own initiative.

     Another order bans retaliation against whistleblowers -- already prohibited by state law. The order goes further and promises that no disciplinary action shall be taken against any employee for the disclosure of an alleged prohibited activity.

     The third order mandates ethics training for all new and existing state workers within six months after the training program is ready. The training will cover (a) the Solicitation Misconduct Act, (b) the Gift Ban Act, (c) the State Employees Political Activity Act, and various Executive Orders issued in past years.

     Gov. Blagojevich is a former Cook County prosecutor and an ex-Congressman. Illinois Executive Orders No. 3-2003, 4-2003 and 5-2003 (Jan. 23, 2003).

     • Click here to view the Executive Orders on the AELE website.

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Eight Circuit upholds the right of three deputies to sue the sheriff if they can prove he had threatened them with a loaded firearm in anger, but there is no federal liability if a jury decides it was only stupid horseplay.

     His repeated, sexually-suggestive touching of male officers was not sexual harassment, but his touching of a woman deputy's breast was actionable.

     Nine members of a Missouri sheriff's dept. brought a §1983 action against the sheriff. Several claimed that the sheriff threatened to shoot them, pointed a loaded gun at them while cursing, inappropriately touched them (both males and females), and also made sexually suggestive remarks.

     A three-judge panel in the Eighth Circuit said that "While the sheriff's alleged [sexual] conduct with respect to the male officers is offensive and despicable, and certainly inexcusable" it did not rise to the level where it violated their civil rights. However, the sheriff's repeated and intentional touching of a female deputy's breasts did "constitute a violation of her bodily integrity sufficient to support a substantive due process claim."

     As for the weapons offenses:

• A male deputy claimed that in Sep. 1997 the Sheriff shoved his firearm into his genitals and, with his finger on the trigger told him, "You get smart with me, I'll blow your f---ing balls off."
• A second male deputy said that the sheriff had pointed his weapon at his crotch and stated, "I'll blow your balls off."
• A third male officer claimed that the sheriff had pointed a gun at his chest.

     The sheriff admitted during his deposition that he often pulled weapons on his employees and that it was "just in fun." The panel noted:

"Not to any great surprise, plaintiffs contend the occurrences were anything but fun. They present evidence that the sheriff pointed loaded weapons at them at close range, often pointing to their genitals, and made direct and forceful threats to kill them or cause grievous bodily injury. They also point to evidence that the sheriff was agitated during the incidents, that his finger was on the trigger, and that they perceived his threats to be real. The employees who found themselves facing the sheriff's barrel raised their hands in surrender, asked the sheriff to put his weapon away, or otherwise tried to placate the sheriff, thus permitting an inference that the sheriff's threats were serious ones."

     The panel concluded that it was a fact for a jury as to whether the sheriff's conduct amounted to a sincere threat of violence rather than a joke.

     The sheriff argued on appeal that in the event the panel should find that his conduct established a constitutional violation, he is entitled to qualified immunity because there has been no judicial opinion that would have alerted him to the unlawfulness of his acts. The panel responded:

"We reject the sheriff's argument that if there was a violation, it was not one of clearly established law. Qualified immunity protects a governmental official from civil liability when his conduct does not violate clearly established constitutional rights of which a reasonable person would have known. ... [The sheriff's] alleged conduct was so far beyond the bounds of the performance of his official duties that the rationale underlying qualified immunity is inapplicable."

     The panel said that if a jury ultimately determines that the sheriff's threats only amounted to misguided and dangerous horseplay among colleagues, "his conduct would not give rise to a substantive due process violation, for gross negligence is not actionable under the Fourteenth Amendment's substantive due process guarantees."

     They concluded that the three male officers who were threatened with a loaded weapon and the woman deputy who complained that her breasts were touched "have alleged facts that would permit a reasonable jury to find that [the sheriff] violated their clearly established substantive due process rights.

     The claims of the other five employees were insufficient to raise to a constitutional violation. Hawkins v. Holloway, #01-3336, 2003 U.S. App. Lexis 639 (8th Cir. 2003).

     • Click here to read the Eighth Circuit's opinion on the Internet. [PDF]

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Arbitrator holds that a person assigned to administer the practical skills portion of a firefighters' promotional exam does not have to be certified in those skills, and need not have taken the exam himself.

Moreover, if some portion of an exam is eliminated before or after testing because of unfairness, the exam is still valid because no candidate is at a disadvantage. Candidates must be informed, however, when standards change if they are to be incorporated into the testing process.

     A firefighters' union grieved the administration of the practical skills portion of a promotional exam for engineer. The arbitrator found, that although the city had no intention to administer the exam in an unfair manner, "there were serious flaws."

     A lack of preparation for the exam was part of the problem, but standing alone, did not invalidate the process. However, candidates were not made aware of new standards that would be used. He therefore ordered the city to re-administer the test promptly.

     Two important rulings were made in this case:

     1. The union's argument that an assistant fire chief was not qualified to give the exam is without merit. The arbitrator said that "a person does not have to be certified in a given area, nor have taken an exam, to administer it to candidates in an appropriate manner."

     2. No candidate is at a disadvantage because of removing part of a test. "Exam questions are sometimes 'thrown out' when it is discovered the question is unfair, for whatever the reason," he said.

     City of Fort Myers and the SW. Fla. Prof. Firefighters L-1826, FMCS Case #02/08075, 117 LA (BNA) 1441 (Howell, 2002).

     • Click here to view the award on the AELE website.

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Fourth Circuit strikes down a police chief's order to an officer that he refrain from criticizing him and his policies.

     A county police officer, who regularly received above-average performance reviews, began to express complaints about departmental policies, ranging from a proposed pay plan to lack of overtime opportunities.

     Management responded negatively. He was placed on administrative leave, because of "impaired judgment and related behavior." The officer took a stress medical leave.

     The chief informed the officer, that in order to return to his position, he "must meet three conditions ...

1. demonstrate appropriate medical treatment
2. undergo a follow-up evaluation ... and
3. demonstrate the ability 'to function effectively within the Department, that you are ready, willing, and able to abide by management policies and decisions ...'"

     The chief met with the officer and told him that his decisions are "final and not to be questioned." He warned him that "using e-mail to blast my decisions ... will not be tolerated."

     The officer was specifically told that he "... shall at all times refrain from any verbal or written communications to third parties, including but not limited to county employees, relating to your employment that are in any way critical or negative towards the county executive, the chief of police or other police department management or command staff, or any other county official or employee ..."

     The officer filed suit in state court, alleging an infringement of his First Amendment rights. The defendants removed the action to federal court. The District Judge refused to allow the defendants to raise the defense of qualified immunity.

     On an interlocutory appeal, a three-judge panel affirmed, noting that "matters relating to [the officer's] employment clearly can encompass matters of public concern." The chief and others should have known that the speech restriction was unconstitutional.

     The panel noted that the "Supreme Court had articulated the principles governing this case in Pickering, decided in 1968, and Connick, decided in 1983," citing Pickering v. Board of Educ., 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138 (1983).

     They added that "government employers cannot place such conditions on employment unless the government's interests in promoting the efficiency of the public services it performs through its employee outweigh those of the employee in commenting on matters of public concern," citing U.S. v. Nat'l Treasury Employees Union, #93-1170, 513 U.S. 454, at 465-66 (1995).

     Mansoor v. Trank, #02-1277, 2003 U.S. App. Lexis 1846 (4th Cir. 2003).

     • Click here to view the decision on the Internet.

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Arbitrator holds that a village did not violate the bargaining agreement when it paid only detectives, who normally do not work weekends, holiday pay for working on the Friday before a Saturday holiday, even though language of the contract was not precise. The union had not attempted to enforce similar payments for patrol officers for the last 16 years.

     The arbitrator allowed into evidence a hand-written notation on the contract that it was agreed that the premium pay was to be applied to those officers who were "normally scheduled off on weekends, i.e. detectives, etc."

     In addition to the handwritten notation, the arbitrator noted:

1. For the past 16 years, the parties have applied clause in exactly the fashion that the employer indicates the negotiators intended for it to be applied in 1985.
2. In all the negotiations that took place during this 16-year period, the union never once raised the issue of the pay differentials.
3. The union, prior to the present grievance, has never filed a grievance on this point.

     He said that while the direct language of a contract is normally controlling, "the union is not allowed to ambush the employer by suddenly insisting on an interpretation ... that has not been imposed on the employer for 16 years."

     Finally, he noted that a union is required to give an employer notice that, after 16 years, it is going to insist that the premium pay provision will be enforced before it can claim that the agreement has been violated. Vil. of Romeoville and Combined Counties Police Assn., 117 LA (BNA) 1392 (Goldstein, 2002).

     • Click here to read the decision on the AELE website.

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Federal court in D.C. refuses to order the prosecutor to remove an officer's name from a blacklist -- thereby preventing him from making arrests, testifying in court or working undercover assignments. The due process clause and civil service laws do not protect a particular job assignment, not accompanied by a loss of pay.

     In 1999 three federal police officers arrested a drug dealer who filed an excessive force complaint against two of the arresting officers. The U.S. Attorney's Office in D.C. launched an investigation of the incident. As a result of the investigation, the U.S. Attorney placed one of the officers on the "Lewis List."

     The list is a computerized file containing the names of those officers who are under investigation for misconduct. The purpose is to disclose, to criminal defendants, the names of officers on the list that might be called to testify against the defendant. The list is named after the D.C. Court of Appeals decision in Lewis v. United States, 408 A.2d 303 (D.C. 1979).

     The concerned officer sued the U.S. Attorney, claiming that by allowing his name to remain on the list and taking "no meaningful action to close or expedite its investigation of him," he is deprived of his right to procedural due process.

     Because of the continued listing, Park Police management no longer allow him to make arrests, testify on behalf of the government, or participate in undercover operations. He claims that his prospects for career advancement are thus impaired.

     The District Court declined to issue the injunction, saying:

"However, while [the Civil Service Reform Act gives the] plaintiff a property interest in his job, it does not follow that he has such an interest in every aspect of his job, or that the Fifth Amendment protects him from employment actions short of those described in [the Act].

"Indeed, plaintiff here has not been discharged from his job, nor has he been furloughed or suspended. Neither his grade nor his salary has been reduced. Instead, the only change in plaintiff's employment status that has resulted from his being on the Lewis list is that he has been precluded from performing certain tasks (doing undercover work, testifying in court, etc.) that he once was allowed to perform. ...

"[N]othing in the CSRA gives federal employees a property interest in performing particular aspects of their jobs, which would preclude their duties and responsibilities from being rearranged without due process ... [and] federal courts have uniformly concluded that a change in a public employee's duties (or, similarly, a lateral transfer) unaccompanied by a reduction in salary is not a sufficient deprivation to trigger due process obligations."

     The judge cited a Court of Appeals decision that the "injury that results when a person is temporarily deprived of his right to wear a uniform and a badge, to carry a gun, to arrest people, and to carry out the other functions of a police officer is the kind of de minimus harm that cannot support a due process claim." Swick v. City of Chicago, 11 F.3d 85, at 86-87 (7th Cir. 1993).

     The judge added that assuming the plaintiff "has been barred from performing certain forms of police work, these deprivations do not amount to a deprivation of a property interest protected by the Fifth Amendment." Nothing in the law confers "a cognizable property interest in making arrests, doing undercover police work, or the like."

     She added that there were "compelling policy concerns that counsel against the recognition of such an interest." Humberson v. U.S. Attorney's Office, #02-2179, 2003 U.S. Dist. Lexis 242 (D.D.C. 2003).

     • Click here to read the decision on the AELE website

     Research Note: In the Swick case (cited above) a Chicago police officer was placed on involuntary sick leave for more than a year because of alleged psychological problems. His income was not diminished, but he was required to turn in his badge and gun and was forbidden to wear his uniform or exercise the arrest or other powers of a police officer.

     The Seventh Circuit held, 3-to-0, that "some people love their work," but if Swick was unjustly placed on sick leave, he has no federally recognized right to reinstatement, because his sick pay equaled his regular salary.

     In an earlier Illinois case, the chief of police ordered an officer, who had been sued by a person he had shot, to surrender his weapon and badge pending final disposition of the internal investigation. He was placed on inactive duty at full salary; at no time was he suspended without pay.

     After nearly a year in that status the officer sued the chief, claiming that since his removal from active duty, "he has suffered from severe depression and anxiety, for which he was required to see his physician who had prescribed medication for him." The chief replied that "an incomplete investigation has been frustrated by the [civil] litigation" arising from the shooting.

     A Circuit Court Judge ordered the officer reinstated, and a three-judge appeals panel affirmed. The panel said "... it would have been manifestly unjust and an abuse of [the chief's] discretion to continue plaintiff's inactive duty status. We fail to see how the continuation of that status would promote the discipline and efficiency of the ... Police Dept."

     They added the lower court "properly required that the reinstatement be confined to duties which do not require a weapon, such as clerical duties, and in this manner the plaintiff was able to return to work in uniform with his badge to perform an assignment at full pay and compensation." Peo. ex rel. Jaworski v. Jenkins, 56 Ill. App.3d 1028, 372 N.E.2d 881 (1978).

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Seventh Circuit affirms the dismissal of a retaliation lawsuit brought by DEA instructors that were summarily transferred after they publicly demeaned women, Attorney General Reno and First Lady Hillary Clinton. The DEA had a duty to thoroughly investigate the harassment claims and to take remedial action.

     Three women police officers from Wisconsin attended Chicago-based DEA seminars. In a lawsuit, they claimed the DEA instructors:

1. Glorified aggressive sexual acts by men against women;
2. Referred to then Attorney General Janet Reno as a "fuckin' dyke;"
3. Fantasized that Ms. Reno and then First Lady Hillary Clinton were having sex together;
4. Boasted about how DEA agents get horny unless they can kill people on a regular basis and about having shot one person 16 times; and
5. Directed sexual comments to specific women participants.

     DEA conducted an internal investigation. At the conclusion one DEA agent resigned and four summarily transferred to other states. All five agents sued the Attorney General and others, claiming that:

• Salty language and four letter words are necessary to control dangerous situations encountered while enforcing drug laws.
• The DEA's internal investigation was egregious, unprofessional, and the plaintiffs were treated in a hostile and accusatory manner.
• The botched investigation resulted in a sexually charged, racially charged, hostile and offensive working environment.
• They are victims of political correctness and have suffered retaliation because they are white males.

     The U.S. District Court rejected their demands, saying that "it would not be retaliatory or otherwise illegal to transfer, reprimand, and even fire employees who had embarrassed the agency in the manner described." The judge added that if the charges are true, the DEA agents should have been disciplined regardless of whether the agency was publicly embarrassed. Flanagan v. Reno, 101 F.Supp.2d 1022 (N.D. Ill. 2000).

     On appeal, a three-judge panel affirmed the dismissal. Ignoring complaints could result in agency liability for sexual harassment claims. Investigate complaints thoroughly and the agency faces discrimination claims from the targeted employees.

     The panel said that "the agents' suggestion that an employer is not entitled to investigate a sexual harassment complaint is untenable." They added that "an employer's investigation of a sexual harassment complaint is not a gratuitous or optional undertaking; under federal law, an employer's failure to investigate may allow a jury to impose liability on the employer."

     Flanagan v. Ashcroft, #00-2766, 2003 U.S. App. Lexis 844 (7th Cir. 2003).

     • Click here to read the award on the Internet. [PDF]

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State narcotics agents awarded $1.5 million for retaliatory action after they exposed a money laundering operation benefiting a CIA-favored Caribbean politician.

     A federal jury in Scranton has awarded $1.5 million to each of two State of Pennsylvania narcotics agents who alleged the state Attorney General's Office retaliated against them after they uncovered a drug-trafficking ring they said had diverted profits to a CIA-supported presidential candidate in the Dominican Republic.

     After the agents made their allegations, the District Attorney and the U.S. Attorney in Philadelphia stopped prosecuting their drug cases. More than 125 cases were dismissed or dropped after prosecutors allegedly accused the agents of fabricating evidence and perjury.

     It was the prior Pennsylvania Attorney who transferred the agents. The current A.G. was found liable, along with four other defendants. The jury rendered twelve separate verdicts ranging from $12,500 to $750,000, for a total of $1.5 million for each plaintiff. McLaughlin v. Fisher, #00-CV-521 (M.D. Pa. 2003).

     • Click here to view the entry of judgment on the AELE website

     Note: The two agents, along with two other plaintiffs, have also sued (in a separate action) an Assistant Secretary of the U.S. Dept. of State and numerous other federal defendants. McLaughlin v. Watson, #97-CV-1555 (M.D. Pa.); interim appeal at 271 F.3d 566 (3rd Cir. 2001); cert. den. 2002 U.S. Lexis 2400. That action is still pending.

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Arbitrator sustains a one-day suspension for a police officer that collided with another vehicle while responding to a burglary call. Officer either failed to activate, or waited too long to enable the Opticom™ priority control traffic system, and did not turn on his lights and siren until at the intersection.

     An Oklahoma police officer grieved a one-day suspension for neglecting proper procedures when responding to a burglary in progress alarm. His vehicle was struck by another car that had the green light at an intersection. The intersection was equipped with the Opticom™ priority control system that ensures an approaching emergency vehicle has the green light.

     The arbitrator determined that the officer did not activate his warning lights or siren until he arrived at the intersection, and did not enable the Opticom device (or waited until he was under the lights before attempting to activate it).

     The arbitrator then went to the standard by which the officer would be judged:

"Whether the standard to be used is 'just cause', 'proper cause', 'cause' or 'good of the service' need not be addressed here. Whichever standard is used the outcome would be the same. There was ample justification to discipline the Grievant."

     He also determined that others had not, in similar situations, received lesser discipline. City of Broken Arrow and FOP L-170, FMCS Case #02/04541,117 LA (BNA) 1454 (Goodman, 2002).

     • Click here to read the arbitration award on the AELE website

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Collective Bargaining - In General

     Florida Supreme Court holds that sheriff's deputies are entitled to form unions and bargaining for improved pay and benefits. The justices overturned a 1978 holding that deputy sheriffs are not public employees. Coastal Fla. Police Benevolent Assn. v. Williams, #SC00-1860, 2003 Fla. Lexis 105 (Fla. 2003). [PDF]

Collective Bargaining - Duty to Bargain

     A Los Angeles County Superior Court has refused to issue a restraining order preventing the sheriff from implementing a new sexual harassment policy without first engaging the union under the state's "meet and confer" bargaining law. The union claimed the revised policy widens the conduct that could result in disciplinary action and changes how harassment complaints will be investigated. Assn. for L.A. Deputy Sheriffs v. L.A. Co., #BC-288744, 41 (1996) G.E.R.R. (BNA) 159 (Cal.Super. 1/17/03).

Criminal Liability

     Former St. Tammany Parish, Louisiana, deputy sheriff who failed to serve approximately 300 legal processes, is charged with official malfeasance and 24 counts of injuring public records. State of Louisiana v. Kenneth R. Meyers, (22nd Judicial Dist. Ct. 2003).

     U.S. Capitol Police officer who was convicted for creating an anthrax "joke," leaving some powdered sweetener and a note on a desk, has been sentenced to two years of probation and 200 hours of community service. He also faces termination proceedings. U.S. v. James J. Pickett, # 02-CR-14 (Sentencing, D.D.C. 2003).

     • Click here to read our article in the Feb. 2003 issue.

Defamation - In General

     Prison warden could not sue a Connecticut newspaper in Virginia for posting allegedly defamatory matter on its website. "A court in Virginia cannot constitutionally exercise jurisdiction over the Connecticut-based newspaper defendants because they did not manifest an intent to aim their websites or the posted articles at a Virginia audience." Young v. New Haven Advocate, #01-2340, 2002 U.S. App. Lexis 25535 (4th Cir. amended 2003).

Disability Rights and Benefits - Benefit Disputes

     The California Public Employees Retirement System will pay $250 million to settle charges it discriminated on the basis of age against public safety officers who took disability retirements. The Plaintiffs were police officers and firefighters whose disability pensions were slashed because they started their careers at 31 or older. Arnett v. California Pub. Employees' Ret. Sys., #95-03022, 41 (1995) G.E.R.R. (BNA) 127, settlement approved (N.D. Cal. 2003); on remand from 179 F.3d 690 (9th Cir. 1999).

Disciplinary Hearings - Untenured

     A city manager had a liberty interest in clearing his name and received a sufficient notice and hearing. His defamation claim fails because the statements were privileged opinions, expressed during a political dispute. Hammer v. City of Osage Beach, #01-3206, 2003 U.S. App. Lexis 1656 (2003). [PDF]

Disciplinary Offenses - In General

     Arbitrator holds that a school system had "just cause" to discipline a teacher who returned marijuana to one of his students, despite his belief that it was not his job to confiscate marijuana or to enforce the state's drug laws. Grand Rapids Public Schools and G.R. Educ. Assn., 117 LA (BNA) 1362, AAA Case #54-390-00390-02 (Brodsky, 2002).

Disciplinary Punishment - In General

     Appeals court upholds the demotion of a correctional sergeant for sexual harassment of two women officers. Lewis v. N.C. Dept. of Correction, #COA01-1386, 570 S.E.2d 231, 2002 N.C. App. Lexis 1168, 19 IER Cases (BNA) 372 (N.C.App. 2002).

Discovery, Publicity and Media Rights

     City of New York ordered to release hundreds of audio and written Fire Dept. records related to the 9-11 response at the World Trade Center. The state trial court exempted internal documents that could be used to create and amend policies, but noted that firefighters and communications operators are not entitled to the same expectations of privacy as citizens. New York Times Co. v. City of N.Y. Fire Dept., #110753/0, N.Y. Co. Supreme Ct., N.Y (Misc. 2003).

Disciplinary Punishment - In General

     Federal court rejects a retaliation suit brought by a state trooper who had been fired two weeks after he sued the agency for FLSA overtime violations. The court found that the trooper was lawfully dismissed for not returning his patrol vehicle, improperly claiming overtime pay, and refusing to produce a report about possible overtime abuse. Hill v. Manning, 2002 U.S. Dist. Lexis 24672 (M.D. Ala. 2002).

Handicap Laws / Abilities Discrimination - Regarded as Disabled

     A duty physician with hepatitis C, who repeatedly missed work, was not "regarded as ... impaired" within the meaning of the ADA. Gowesky v. Singing River Hosp., #60283, 2003 U.S. App. Lexis 2054 (5th Cir. 2003). [PDF]

     Second Circuit upholds an ADA claim by a police officer that was passed over for sergeant because he had suffered an epileptic seizure. Treglia v. Town of Manlius, #01-9350, 313 F.3d 713, 2002 U.S. App. Lexis 26120, 13 AD Cases (BNA) 1537 (2d Cir. 2002).

Pay Disputes - Overtime Claims

     DEA officer was not entitled to overtime pay where the hours were not officially ordered or approved. Crowley v. U.S., #94-711C, 53 Fed. Cl. 737, 2002 U.S. Claims Lexis 260 (Ct.Cl. 2002).

Political Activity/Patronage Employment

     Sixth Circuit overturns an injunction against a mayor for initiating transfers or demotions or interfering with promotions or compensation of firefighters because of their political beliefs, associations, or a desire to remain neutral in political matters. The injunction was overly broad, was unnecessary to provide the plaintiffs the relief to which they are entitled, and was not based upon a showing of likely future irreparable harm. Sharpe v. Cureton, #00-5805, 2003 U.S. App. Lexis 2643, 2003 FED App. 0050P (6th Cir.).

Privacy Rights

     Arbitrator finds that management violated an injured employee's rights under the Privacy Act of 1974 when it obtained her medical records directly from medical university and two physicians; federal regulations require agencies to seek an employee's cooperation in procuring necessary documents. Dept. of Veterans Affairs and N.A.G.E, 117 LA (BNA) 1313, FMCS Case #02/00404 (Singer, 2002).

Sick Leave & Abuse

     Arbitrator concludes that an employee who had vasectomy was not entitled to sick leave under the bargaining agreement, which allowed paid absences because of illness; illness means a condition caused by "disease, malady or sickness." Communications Wkrs. of Amer. and Office & Prof. Emplees. Intern. L-2, 117 LA (BNA) 1377, AAA Case #16-300-165-01 (Hockenberry, 2002).

Union and Associational Activity

     Arbitrator rules that the U.S. Border Patrol could not require a union local president to submit a written report concerning when he plans to be out of town on union business, including the purpose of meeting, with whom he is meeting, and what the meeting is about. The requirement was not authorized under the bargaining agreement and is overly intrusive. I.N.S., Border Patrol, El Paso and Natl. Border Patrol Council, AFGE L-1929, 117 LA (BNA) 1252, FMCS Case #00/13188-A (Massey, 2002).

Whistleblower Requirements and Protection

     First Circuit holds that a police officer that was transferred to a position he had previously requested after complaining about departmental corruption was unable to prove he was the victim of retaliation for whistleblowing. Dirrane v. Brookline Police Dept., #01-2523, 315 F.3d 65, 2002 U.S. App. Lexis 27197 (1st Cir. 2002).

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     AELE's list of recently-noted employment law resources.

  Article: "E-mail, fingerprints and personnel files: Recurring and emerging discovery issues in employment litigation," 38 (1) Tort Trial & Insur. Prac. Law Journal 69-101 (Fall 2002), Amer. Bar Assn., www.abanet.org/tips.

     Article: The international firefighters' union (IAFF) and fire chiefs' assn. (IAFC) have agreed to create a "Fire Service Peer Fitness Trainer Certification," to implement a wellness/fitness initiative.

     Article: The U.S. Patriot Act of 2001: Changes to electronic surveillance laws.

     Book: [Federal] "Civil Service Handbook for Ex-Military Personnel," published by Federal Employees News Digest, $12.95, www.FederalDaily.com/B062.html

     Guidance: New Jersey Attorney General issues Guidelines on applications for a waiver of forfeiture of a public office after a criminal conviction. [PDF]

     Report: The Bureau of National Affairs, Inc. has reported that state and local government wage contracts for 2002 provided an average increase of 3.8 percent, compared with 4.1 percent in 2001. Ref: 41 (1994) G.E.R.R. (BNA) 100.

     Website: Updated federal per diem rates for lodging, meals and incidentals are on a web site at www.gsa.gov/. Click on "Travel on Government Business," and "Per Diem Rates."

Reference:

• Abbreviations of Law Reports, laws and agencies used in our publications.
• AELE's list of recently noted employment law resources.

CROSS REFERENCES