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Fire and Police Personnel Reporter
An employment law publication for law enforcement, corrections and the fire/EMT services,
ISSN 0164-6397 - Cite this issue as: 2006 FP Dec (web edit.)
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CONTENTS

Featured Cases with Links
Disciplinary Punishment (2 cases)
First Amendment Related
Grand Jury Proceedings
Injuries to Employees
Injuries to Trainees
Privacy Rights
Retirement Rights & Benefits

Noted in Brief
Arbitration Procedures
Attorneys' Fees (2 cases)
Civil Liability
Collective Bargaining - Duty to Bargain
Defamation (2 cases)
Disability Rights and Benefits
Disciplinary Appeals & Challenges
Disciplinary Evidence
Disciplinary Offenses
FLSA - Overtime
Handicap Discrimination - Specific Disabilities
Health Insurance & Benefits
National Origin Discrimination
Personnel Manuals
Pregnancy Discrimination
Privacy Rights
Product Liability
Promotional Rights
Race Discrimination (2 cases)
Retaliatory Personnel Action
Sexual Harassment
Sick Leave & Abuse
Taxation
Union's Duty of Fair Representation
Wages and Hours
Whistleblower Protection
Workers' Compensation

Resources

Cross_References

FEATURED CASES & ITEMS
WITH LINKS TO THE OPINIONS OR DOCUMENT

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Disciplinary Punishment - In General

Arbitrator upholds a five-day suspension of an officer that shot a dog without adequate justification.

     An Ohio sheriff's dept. provided an escort service for repossessors.

     The grievant escorted two repossession employees to a home in Lebanon, Ohio, to recover personal property. There was no car in the driveway, and no activity was observed inside the house.

     When the grievant learned that he would have to return, he became noticeably agitated. Before he left the station, several deputies heard him say, "I'm going to shoot that fucking dog."

     When the grievant approached the back door, the larger of two dogs began to growl and, allegedly bit his pants. He pulled out his chemical spray, but was unable to operate it successfully. He then pulled his gun from its holster, and shot the dog's left rear thigh.

     An internal shooting review board found that the shooting was not justified and the deputy was issued a five-day suspension. The Union filed a demand for arbitration.

     The arbitrator found that the grievant had no reason to enter the backyard. He wrote:

     The arbitrator noted that if the grievant actually said, "I am going to shoot that fucking dog," that statement "would indicate a deliberate intention to shoot the Labrador." He was satisfied that his behavior was sufficient reason to give the Sheriff just cause to suspend him for five days.

     Warren Co. Sheriff's Office and Deputy Sheriff's Benevolent Assn., 122 LA (BNA) 1451, AAA Case #52-390-00229-06 (Wren, 2006).

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« « « « « « o » » » » » » »

Arbitrator sustains disciplinary action against an off-duty officer who greeted utility employees at his home with profanity and a firearm.

     An electric company worker went to the grievant's home regarding disconnecting his electric power for non-payment. The grievant appeared at his door with a firearm in his hand. He supposedly ordered the employees to leave his property.

     As a result of this behavior he received a two-day/20 hour suspension.

     An arbitrator found that the grievant carried a loaded weapon to the door and was rude and angry. The grievant claimed he had no recollection of many events. The arbitrator did not believe him.

     He then wrote:

     The grievance was denied. FOP L-127 and City of Newark, Ohio, FMCS #061026-00360-8 (Brundige, 2006).

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First Amendment Related

Federal court dismisses a suit by a nurse who lost her job after prison authorities denied her entry privileges for breaking a rule.

     A private nurse in a New Jersey prison violated the rules by providing an inmate with photocopies without assessing a user charge. Her privilege to enter the facility was revoked.

     Her private employer offered her an alternative position, at less pay -- which she refused. She sued the state claiming that by denying her entry into the prison, the DoC violated her First Amendment right to communicate and associate with her clients.

     A federal court has rejected her claims. The judge found that there was no evidence that she was "engaging in a protected First Amendment activity, i.e. speech or expression."

     Cunningham v. New Jersey, #03-4970, 2006 U.S. Dist. Lexis 68789 (D.N.J. 2006).

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Grand Jury Proceedings

Editor's Case Alert

Federal court blocks a grand jury subpoena seeking police internal affairs statements. Use of a "Garrity Review Team" was viewed as too "complex."

     An Assistant U.S. Attorney sought the production of police internal affairs statements made by police officers. The city asked the court to quash the subpoena duces tecum for two reasons:

     First, compliance would undermine the agency's ability to operate the internal affairs office in an efficient and effective manner.

     Second, the use of compelled statements would violate the officers' privileges against self-incrimination under the Fifth Amendment. Officers are given the "Garrity" warnings advising them that their answers are mandatory and cannot be used in evidence against them.

     The federal prosecutors stated that they would use a "Garrity Review Team" to review the documents:

     The judge noted that although a federal grand jury has "wide latitude in subpoenaing witnesses and documents," the standard for quashing a subpoena is one of reasonableness. He wrote:

     The motion to quash was granted. In re U.S. v. Doe, # N04-2294; G.J. 2005-2, 434 F.Supp.2d 377, 2006 U.S. Dist. Lexis 38699 (E.D. Va. 2006).

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     Research Note: The use of a "Garrity Review Team" has been approved by other courts. In re Grand Jury Subpoenas (Albuquerque Police Dept.), 40 F.3d 1096, at 1103 (10th Cir. 1994); cert. den. 115 S.Ct. 1957 sub nom Nakamura v. U.S. and In re Grand Jury Subpoena (Huntington Beach Police Dept.), 75 F.3d 446, 1996 U.S. App. Lexis 1236 (9th Cir. 1996).

     The Ninth Circuit has held that the transmittal, to the prosecutor, of an officer's Garrity immunized IA statements, which were then were used to formulate charges against him, did not violate his civil rights. Gwillim v. San Jose, 929 F.2d 465 (9th Cir. 1991).

     Another federal court quashed a grand jury subpoenas that sought "Garrity" statements of officers, contained in IAD files. In re Grand Jury Subpoena Issued to Custodian of Records, St. Louis Metropolitan Police Dept., #89 Misc. 492, 1990 F&P Pers. Rep. 54-5 (E.D. Mo. 2/6/90). Also see, "Compelled Statements From Police Officers and Garrity Immunity," 76 N.Y.U. L. Rev. 1309 (2001), and "Fifth Amendment Compelled Statements: Modeling the Contours of Their Protected Scope," 72 Wash. U. L. Q. 1603 (1994).

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Injuries to Employees

Workers at Ground Zero allowed to proceed with air quality claims.

     It took ten months to remove the debris that resulted when the terrorists crashed their hijacked airplanes into the Twin Towers of the World Trade Center on September 11, 2001. Thousands of workers converged on the site, toiling day and night, seven days a week until they completed their jobs.

     They risked their lives from shifting debris, fires, smoke, and acrid and polluted air to complete their work in record time, in an extraordinary effort to close the gaping hole caused by the terrorists to the landscape and psyche of New York and the nation.

     Workers claim that NY City and about 150 private contractors were negligent in monitoring the air for months after the terrorist attacks. A federal judge has declined to dismiss about 3,000 respiratory claims, which were consolidated in a single civil action.

     A study released in September 2006 indicated that up to 70 percent of the 10,000 workers who were tested report that they suffer from new or substantially increased respiratory problems since 9-11.

     The judge will appoint a special master to eliminate unworthy claims. He said, however, that "if even a minority of the plaintiffs suffered serious injuries to their respiratory tracts arising from the acrid air of September 11, their claims deserve to be heard when a recovery could make a difference in their lives." They endured "a dangerous environment ... threatening their health and safety."

     Various immunities may apply, but the scope and extent of the immunity will vary according to date, place and activity. In re World Trade Center Disaster Site Litigation, 21 MC 100, 03 Civ. 00007, 2006 U.S. Dist. Lexis 75020 (S.D.N.Y. 2006).

      Click here to view the opinion on the AELE website.

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Injuries to Trainees

New York court refuses to dismiss a suit brought by an officer who was injured during a tactical training exercise. The training area lacked protective floor padding.

     An NYPD officer sought damages for injuries she sustained while participating in police training exercise at her precinct house. While acting out the role of a perpetrator, she was flipped face down onto the floor by another officer.

     She claimed that her injuries were caused by the city's failure to comply with Labor Law §27-a, which requires employers to provide and have available the appropriate and necessary safety equipment for a training exercise, including mats and protective gear.

     The trial court ruled that her claim sufficiently stated a cause of action "by failing to provide her with the appropriate and necessary safety equipment, including floor padding or mats, necessary to protect her from the recognized hazards inherent in the training exercise in which she was requested to participate."

     Singleton v. City of New York, #9640/06, 2006 NY Slip Op 26412, 2006 N.Y. Misc. Lexis 2928 (2006).

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Privacy Rights

Members of the Arkansas State Police did not violate a criminal investigator's constitutional right to privacy by investigating an allegation that he had sexual relations with a crime victim during the course of a criminal investigation. Appellate court declines to overturn his termination.

     A state police sergeant began a sexual relationship with a crime victim before the prosecution was concluded. Although the affair was consensual, private and while off-duty, management felt that he compromised his position because of the need for objectivity between a victim and an investigator.

     He filed suit, alleging privacy considerations. The U.S. District Court rejected his claims and sustained his termination. A three-judge panel of the Eight Circuit has affirmed. They wrote:

     The fact that an investigator could be exploitive also was a concern. The panel wrote:

     The panel concluded that the internal investigation "was narrowly tailored to serve the state's compelling interest in administering a fair and unbiased criminal-justice system." Sylvester v. Fogley, #05-3492, 2006 U.S. App. Lexis 25750 (8th Cir. 2006).

      Click here to view the opinion on the Internet.

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Retirement Rights and Benefits

New York Court rejects a claim for duty-related retirement benefits to an officer that worked at the WTC site. There was evidence of preexisting cardiac disease and anxiety from a family death.

     After the September 11, 2001 attacks, an NYPD officer was assigned to work at the World Trade Center site. Later, he suffered from chronic fatigue, shortness of breath, and chest pains. He sought a duty-related pension, which was denied.

     A N.Y. state court held that "there was credible medical evidence ... [that his] disability was not caused by his assignment to the World Trade Center site. There were numerous references in the materials reviewed linking petitioner's anxiety and panic, as well as the depression that came with them, to the death of his mother and his incipient cardiac disease."

     A statutory presumption was of no assistance to the petition. Jefferson v. Kelly, #103125/06, 2006 NY Slip Op 26417, 2006 N.Y. Misc. Lexis 2954 (2006).

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AELE Seminars:
Public Safety Discipline and Internal Investigations
Dec. 11-13, 2006 - Las Vegas
San Francisco April 23-25, 2007

Click here for more information about all AELE Seminars



NOTED IN BRIEF
(SOME WITH LINKS)

Arbitration Procedures

     California appellate court rejects a management assertion that arbitrators cannot interpret statutes. Calif. Corr. Peace Officers Assn v. State of Calif., #A112311, 2006 Cal. App. Lexis 1386, 180 LRRM (BNA) 2631 (2006).

Attorneys' Fees and Legal Defense Rights

     Idaho Supreme Court rules that the state's Personnel Commission lacked the authority to award attorneys' fees and pre-judgment interest to a former corrections officer that had been terminated without proper cause. Sanchez v. Idaho Dept. of Corr., #32266, 141 P.3d 1108, 2006 Ida. Lexis 114 (2006).

     Ninth Circuit affirms a sanction of dismissal of the plaintiff's lawsuit and the imposition of $65,000 in legal fees for erasing 2,200 files from a laptop computer during the pendency of sexual harassment litigation. Leon v. IDX Systems, #04-35983, 464 F.3d 951, 2006 U.S. App. Lexis 23820 (9th Cir. 2006).

Civil Liability

     Federal appeals court concludes that the Civil Service Reform Act of 1978 precludes a civil rights damage lawsuit filed against his superiors by a former federal probation officer. Bell v. LaBorde, #06-40056, 2006 U.S. App. Lexis 25589 (5th Cir. 2006).

Collective Bargaining - Duty to Bargain

     California city had no obligation to meet and confer with the POA bargaining representative before conducting a "Vehicle Stop Data Collection Study," designed to find out if police officers were engaging in racial profiling. Claremont Police Officers v. City of Claremont, #S120546, 39 Cal. 4th 623, 47 Cal.Rptr.3d 69, 2006 Cal. Lexis 9518, 180 LRRM (BNA) 2472 (Cal. 2006).

Defamation - In General

     Defamatory statements about a police chief contained in an investigative report ordered by the mayor were protected by the public interest privilege. Jackson v. City of Columbus, #05AP-1035, 2006 Ohio 5089, 2006 Ohio App. Lexis 5019 (10th App. Dist. 2006).

     During a state police investigation, police employees' claims of injury to their reputations must fail because there were no adverse personnel actions, such as a loss of pay or benefits, changed working conditions, demotions or terminations. Heller v. Fulare, #04-265J, 2006 U.S. Dist. Lexis 69162 (W.D. Pa. 2006), on remand from 454 F.3d 174 (3d Cir. 2006).

Disability Rights and Benefits - Benefit disputes

     New Jersey appellate court affirms the denial of an accidental disability pension to a municipal police officer that was wounded in course of active military service while on military leave. Mason v. Dept. of the Treasury, A-0356-05T1, 386 N.J. Super. 381, 901 A.2d 441, 2006 N.J. Super. Lexis 189, 180 LRRM (BNA) 2638 (N.J.A.D. 2006).

Disciplinary Appeals & Challenges- In General

     Ninth Circuit rules against a public employee's denial of due process lawsuit because a collective bargaining agreement provided multi-level grievance procedures, which the plaintiff failed to use. Micone v. Carey, #04-16811, 2006 U.S. App. Lexis 24663 (Unpub. 9th Cir. 2006).

Disciplinary Evidence - Admissibility/In General

     "Just as it is axiomatic that the testimony of one credible witness is sufficient, it is also axiomatic that the testimony of a police officer is neither entitled to nor afforded any extra credibility. It is a well-settled proposition that a police officer's testimony is equal to that of any other witness and subject to the same credibility concerns. The officer is neither more credible nor less credible simply because he or she is a police officer." Calumet City Police Dept. and Illinois FOP, 122 LA (BNA) 434 (Clauss, 2005, reported 2006).

Disciplinary Offenses - In General

     Arbitrator finds that a suspect misidentification was reasonable based upon the information in the officer's possession A ten-day suspension was annulled. Ohio Dept. of Public Safety and FOP Ohio, 122 LA (BNA) 897 (Graham, 2006).

FLSA - Overtime - in General

     Firefighters that voluntarily swap shifts with each other are entitled to overtime for any extra duty within the reporting period. Senger v. City of Aberdeen, #05-3803, 2006 U.S. App. Lexis 24467, 11 WH Cases2d (BNA) 1537 (8th Cir. 2006).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     EEOC failed to prove that an employee's morbid obesity (body weight more than 100% over the norm) was the result of a physiological condition; a physical characteristic must relate to a physiological disorder in order to qualify as an ADA impairment. EEOC v. Watkins, #05-3218, 463 F.3d 436, 2006 U.S. App. Lexis 23177, 2006 FED App. 0351P, 18 AD Cases (BNA) 641 (6th Cir. 2006).

Health Insurance & Benefits

     A police officer, who was injured in an automobile accident, was entitled to retain money paid to him under an underinsured motorist claim. Although the village paid his medical claims, it was not entitled to a lien on his insurance recovery. Musgrove v. Amer. Prot. Insur. Co., #12865/04, 2006 NY Slip Op 6566, 2006 N.Y. App. Div. Lexis 10877 (2006).

National Origin Discrimination

     Summary judgment for the employer is granted in a national origin discrimination lawsuit. A supervisor and the plaintiff, an Italian-American, were not similarly situated. Covello v. City of Chicago, #04C2212, 2006 U.S. Dist. Lexis 68985 (N.D. Ill.).

Personnel Manuals

     Federal court rejects a claim that an employee handbook created a legally enforceable contract. Oklahoma Stat. Tit. 11, §12-114, authorizes city managers to remove employees "solely for the good of the service." Parker v. Town of Chelsea, 2006 U.S. Dist. Lexis 74814 (N.D. Okla. 2006).

Pregnancy Policies and Discrimination

     Pregnant officer's discrimination suit fails. Although two male officers were injured while off duty, unlike her, they did not seek a light duty assignment. Tysinger v. Police Dept. of the City of Zanesville, #05-3785, 463 F.3d 569, 2006 U.S. App. Lexis 24144 (6th Cir. 2006).

Privacy Rights

     Ninth Circuit holds that US customs agents may conduct warrantless, random searches of travelers' laptops regardless of reasonable suspicion or probable cause. U.S. v. Romm, #04-10648, 455 F.3d 990, 2006 U.S. App. Lexis 18474 (9th Cir. 2006).

Product Liability

     N.Y. Appellate Court rejects a lawsuit against the city because of injuries sustained while wearing rubber boots selected by his superiors. "The function of selecting firefighting equipment is clearly a discretionary governmental function." Amodio v. City of New York, 2006 NY Slip Op 7566, 2006 N.Y. App. Div. Lexis 12545 (A.D. 2006).

Promotional Rights, Procedures and Performance Appraisals

     Preventing an FBI employee from receiving a promotion constitutes an "adverse employment action." Velikonja v. Gonzales, #05-5030, 2006 U.S. App. Lexis 25675 (D.C. Cir. 2006).

Race Discrimination - In General

     Refusal to allow a minority employee to leave early one day a month was not unlawful discrimination, even if management allowed a single white worker, who had different job responsibilities, to do so. Wills v. PRECC, #5:05CV-15, 2006 U.S. Dist. Lexis 72489 (W.D. Ky. 2006).

     Federal court dismisses a race discrimination claim brought by a terminated probationary peace officer. He was absent without leave and failed to complete training. Payton v. City Univ. of N.Y., 03 Civ. 8536, 2006 U.S. Dist. Lexis 70182 (S.D.N.Y. 2006).

Retaliatory Personnel Action

     Federal appeals court reinstates an ex-FBI employee's claims for discrimination and retaliation in violation of Title VII. Preventing an employee from receiving a promotion constitutes an adverse employment action. Velikonja v. Gonzales, #05-5030, 2006 U.S. App. Lexis 25675 (D.C. Cir. 2006).

Sexual Harassment - In General

     A new sheriff may be held liable for sexual harassment committed during a former sheriff's administration, because Title VII vests broad equitable discretion in the federal courts to remedy Title VII violations. Briggs, v. Waters, #2:06cv154, 2006 U.S. Dist. Lexis 72740 (E.D. Va. 2006).

Sick Leave & Abuse

     Arbitrator rules that a transit agency did not have just cause to discharge a driver who falsely reported that he was sick when he was absent because of alcohol abuse. This was his first violation. Kitsap Transit and Transit Union L-134, 122 LA (BNA) 1361 (Yoshitomi, 2006).

Taxation

     Federal appeals court holds that a whistleblower who won $70,000 in her suit against the New York Air National Guard was entitled to a refund of the federal income tax she paid on compensatory damages awarded by the Labor Dept. Murphy v. Internal Revenue Serv., #05-5139, 460 F.3d 79, 2006 U.S. App. Lexis 21401 (D.C. Cir. 2006).

Union's Duty of Fair Representation

     Federal appeals court rejects a suit filed by a former police officer against the union for denying him representation; he waited 13 years before filing the civil action. Harmon v. PBA of City of N.Y., #05-6569, 2006 U.S. App. Lexis 24796 (2nd Cir. 2006).

Wages and Hours

Pennsylvania appellate court affirms an arbitration award that specified work periods of county detectives. Rebert v. York Co. Detectives Assn., #659 C.D. 2006, 2006 Pa. Commw. Lexis 544 (2006).

Whistleblower Requirements and Protection

     Federal court refuses to dismiss a First Amendment suit brought by an employee that claimed that he was terminated after he submitted an analysis of the inefficient use of take home vehicles by police commanders. Franklin v. Clark, #04-2042, 2006 U.S. Dist. Lexis 73853 (D.Md. 2006).

Workers' Compensation

     California appellate court affirms the rejection of workers' comp. benefits for an off-duty corrections officer that stopped to help at an accident scene he encountered on his way to work. He was not acting as a peace officer at the time and his job duties did not require him to stop to render aid at the time when he was injured. Pettigrew v. W.C.A.B., #C052030, 143 Cal.App.4th 397, 48 Cal.Rptr.3d 922, 2006 Cal. App Lexis 1486 (3d Dist. 2006).

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RESOURCES

     Aviation security: "TSA Oversight of Checked Baggage," U.S. Government Accountability Office Report GAO-06-869.

     Federal employment: OPM's "Report to Congress - Recruitment, Relocation, and Retention Incentives."

     FOIA report: "Freedom of Information Act Amendments: 109th Congress," Congressional Research Service #RL32780, Library of Congress (2006).

     National security - polygraph: U.S. Dept. of Energy publishes a final rule to establish new counterintelligence evaluation regulations to minimize the potential for disclosure of classified information, data, and materials, effective Oct. 30, 2006. 71 (189) Federal Register 57386-57397 (9/29/2006).

     Stress: "Dealing with Employee Stress: How Managers Can Help -- or Hinder -- Their Personnel," 75 (7) FBI Law Enforcement Bulletin (July, 2006).

     Workplace injuries and illnesses: "Workers' Compensation: Rx for Policy Reform," National Center for Policy Analysis, Policy Report No. 287, Sep. 2006.

Reference:

      Abbreviations of Law Reports, laws and agencies used in our publications.
      AELE's list of recently noted employment law resources.  
      Discrimination Laws plus EEOC Regulations and Policy Guidance

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CROSS REFERENCES

Featured Cases:
Retaliatory Personnel Action - see: First Amendment Related

Noted in Brief:
Collective Bargaining - see: Disciplinary Appeals
Disciplinary Punishment - see: Sick Leave & Abuse
Disciplinary Searches - see: Search & Seizure
Military Leave - see: Disability Benefits
Obesity - see: Handicap Discrimination
Whistleblower Protection - see: Taxation


AELE Seminars:
Public Safety Discipline and Internal Investigations
Dec. 11-13, 2006 - Las Vegas
San Francisco April 23-25, 2007

Click here for more information about all AELE Seminars



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