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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: 2007 FP Dec (web edit.)
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CONTENTS

Monthly Law Journal Article
Regulation of an Employee's Off-Duty Activities
Part One - Secondary Employment (Moonlighting)
2007 (12) AELE Mo. L. J. 201
(PDF format)

Special Article
LAPD Officers Win Consent Decree Against "Community Activist"

Digest Topics
Arbitration Procedures
Attorneys' Fees
Bill of Rights Laws
Criminal Liability
Defamation
Disability Rights and Benefits - Appeals
Disability Rights and Benefits - Benefit Disputes
Disciplinary Appeals
Disciplinary Offenses - Sexual Misconduct
Disciplinary Offenses - Sufficiency of Proof
Disciplinary Procedures
Disciplinary Punishment - General
Disciplinary Punishment - Disparate Treatment
Discovery and Media Rights (2 cases)
Fair Labor Standards Act - Constitutionality
FLSA - Overtime - Canine Officers
First Amendment Related
Free Speech
Handicap Discrimination - Specific Disabilities
Homosexual & Transgendered Employee Rights
Military Leave
National Origin Discrimination
National Security Issues
Promotional Rights
Race Discrimination (2 cases)
Religious Discrimination
Retaliatory Personnel Action (5 cases)
Sexual Harassment (2 cases)
Suspensions Union Activity (3 cases)
Untruthfulness
Vacation Pay
Whistleblower Protection (2 cases)

Resources

Cross_References

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AELE Seminars:

Public Safety Discipline and Internal Investigations
Las Vegas Dec. 10-12, 2007

Lethal and Less Lethal Force
Mar. 24-26, 2008 - San Francisco

Click here for more information about all AELE Seminars


MONTHLY CASE DIGEST

     Some of the case digests do not have a link to the full opinion.

Arbitration Procedures

     Arbitration of a grievance two years after it is filed is contrary to the intent of the bargaining process, but a long delay, by itself, does not necessarily make a grievance inarbitrable. Cook County/Sheriff and SEIU L-73, 123 LA (BNA) 1674 (Wolff, 2007).

Attorneys' Fees and Legal Defense Rights

     California appellate court affirms a holding that a city is obligated to pay the legal fees and expenses of the members of a municipal retirement board. Torres v. City of San Diego, #D049111, 2007 Cal. App. Lexis 1356 (4th Dist.).

Bill of Rights Laws

     The California Public Safety Officers Procedural Bill of Rights Act, Cal. Gov't Code §3303 did not apply to an interview of an officer because neither that officer nor the former employee were under investigation at the time. Eaton v. Siemens, #2:07-cv-0315, 2007 U.S. Dist. Lexis 58621 (E.D. Cal.).

Criminal Liability

     Ninth Circuit upholds the seizure of kiddy porn gathered from his employer's remote monitoring of workplace Internet activity. Every time that employees logged onto a computer they saw a warning banner that stored files and Internet usage were subject to monitoring by the employer and that employees were deemed to have consented to monitoring and disclosure to law enforcement officers. U.S. v. Greiner, #05-30342, 2007 U.S. App. Lexis 19122 (9th Cir.).

Defamation

     Florida appellate court overturns a defamation jury verdict in favor of a police officer against his lieutenant. The lieutenant was entitled to absolute immunity because his statements were within the scope of his authority and duties. Cassell v. India, #4D06-1716, 2007 Fla. App. Lexis 13001 (4th Dist.).

Disability Rights and Benefits - Hearing Procedures and Appeals

     Illinois appellate court rejects the argument that the denial of a Chicago firefighter's duty-related disability application is legally incompatible with management's refusal to reinstate him as a firefighter. Reed v. Retirement Bd. of the Fireman's Annuity, #1-06-1710, 2007 Ill. App. Lexis 954 (1st Dist. 2007), relying on Dowrick v. Vil. of Downers Grove, #2-05-0054, 362 Ill.App.3d 512, 840 N.E.2d 785 (2005): "... it seems incongruous that separate administrative findings could lead to a firefighter being discharged because of a disability while also being denied a disability pension. However, comparison of the statutes respectively governing proceedings before the Board of Commissioners and those before the Pension Board suggest a possible rationale for such a result."

Disability Rights and Benefits - Benefit Disputes

     Under Pennsylvania state law an injured volunteer EMT was entitled to an award for lost wages. Although she did not hold a paying outside job, she should receive a pay award of at least equal to the statewide average weekly wage. Bor. of Heidelberg v. Workers' Comp. Appeal Bd. (Selva), #42-WAP-2006, 2007 Pa. Lexis 1678.

Disciplinary Appeals & Challenges- In General

     An employee "is responsible for the errors of his chosen representative except where he has proven that his diligent efforts to prosecute an appeal were thwarted, without his knowledge, by his attorney's deceptions and negligence." Helmstetter v. Dept. of Homeland Security, #PH-0752-04-0067-I-2, 2007 MSPB 147, 2007 MSPB Lexis 4380.

Disciplinary Offenses/Punishment - Sexual Misconduct

     Ninth Circuit affirms the dismissal of a civil rights suit brought by a police officer who was terminated for participating in a sexually explicit website with his wife., Whether his actions were related to his employment or not, management could discipline him without violating his First Amendment or privacy rights. Dible v. City of Chandler, #05-16577, 2007 U.S. App. Lexis 21181 (9th Cir.).

Disciplinary Offenses - Sufficiency of Proof

     Appellate court rejects a lack of evidence defense and sustains the termination of a city worker for opening coworker e-mails. Her claim that someone else must have used her password to log on lacked merit. Gornes v. City of Dayton, #22065, 2007-Ohio-4548, 2007 Ohio App. Lexis 4083 (2d App. Dist.).

Disciplinary Procedures - In General

     State court declines to order reinstatement of two officers that had been convicted of conspiracy to obstruct a federal grand jury after the convictions were overturned on appeal. The petitioners gave inconsistent accounts of the events surrounding the mistreatment of a prisoner. Matter of Bruder v. Kelly, #114504/06, 2007 N.Y. Misc. Lexis 5881 (N.Y. Co. Sup.).

Disciplinary Punishment - In General

     Federal appellate court upholds the termination of a Customs officer that sexually assaulted a coworker and abused others. The panel rejected a claim that the agency was legally bound to follow a table of offenses and penalties, which was only a guide and was not binding on the agency. Rosado v. D.H.S. Bur. of Customs, #2007-3116, 2007 U.S. App. Lexis 18775 (Unpub. Fed. Cir.).

Disciplinary Punishment - Disparate Treatment

     Arbitrator reinstates a civilian jail worker that was fired for failing to report his arrest at a retail store; another worker received only a 15-day suspension for not reporting two, so that a 10-day suspension is appropriate here. Cook County/Sheriff and SEIU L-73, 123 LA (BNA) 1674 (Wolff, 2007).

Discovery, Publicity and Media Rights

     California Supreme Court orders POST to disclose the names, employing agencies, hiring and termination dates of peace officers included in the Commission's database. Cmsn. on Peace Officer Stds. & Trng. v. Super. Ct. of Sacramento Co. (L.A. Times), #S134072, 2007 Cal. Lexis 8916.

     Ninth Circuit finds that FOIA disclosure of two Presidential Daily Briefs written for President Lyndon Johnson in the 1960s could "reveal protected intelligence sources and methods." The Court rejected a per se status exemption for PDBs." Berman v. C.I.A., #05-16820, 2007 U.S. App. Lexis 21072 (9th Cir.).

Fair Labor Standards Act - Constitutionality

     FLSA overtime claims by state peace officers are barred under the Eleventh Amendment. FOP Barkley L-60 v. Fletcher, 2007 U.S. Dist. Lexis 29536 (W.D. Ky.).

FLSA - Overtime - Canine Officers

     Sheriff's dog and bomb unit officer was not entitled to overtime pay for the time he spent caring for the dogs in his home. The bargaining agreements cited by management did not cover the issue, and one stated that it was not intended to supersede the FLSA's overtime requirements. Caminiti v. Co, of Essex, #04-4276, 2007 U.S. Dist. Lexis 56361 (D.N.J.).

First Amendment Related

     Eighth Circuit finds that the sheriff in St. Paul, MN, retaliated against officers for their First Amendment conduct by transferring them from supervisory positions into positions with significantly less responsibility and causing them to lose overtime pay and access to take-home vehicles because of their campaign activities. Shockency v. Ramsey County, #06-3094, 2007 U.S. App. Lexis 16587 (8th Cir.).

Free Speech

     Seventh Circuit holds that a police officer engaged in protected speech when he gave a deposition in a lawsuit brought by demoted coworker. Morales v. Jones, #06-1463, 494 F.3d 590, 2007 U.S. App. Lexis 16936, 23 IER Cases (BNA) 555 (7th Cir.).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Officer, with Attention Deficit Hyperactivity Disorder, is not disabled within the meaning of the ADA or state law. His inability to correctly report his time worked is not a substantial impairment, and he was lawfully fired after repeatedly turning in false time sheets. The fact he was president of the union did not prove his termination was retaliatory. Van Compernolle v. City of Zeeland, #06-1904, 2007 U.S. App. Lexis 16735 (6h Cir.) affirming, 2006 U.S. Dist. Lexis 32963 (W.D. Mich. 2006).

Homosexual & Transgendered Employee Rights

     Federal court refuses to dismiss a sex discrimination action brought by a terminated transgender employee stated claim of based on gender stereotyping, where she alleged that management punished her for not conforming to gender stereotypes. Creed v. Family Express Corp., 2007 WL 2265630, 2007 U.S. Dist. Lexis 57680, 101 FEP Cases (BNA) 609 (N.D. Ind.).

Military Leave

     Federal worker was only entitled to compensation for the days he was on leave without pay. Pucilowski v. Dept. of Justice, #2006-3388, 2007 U.S. App. Lexis 20609 (Fed. Cir.).

National Origin Discrimination

     In a private sector case, a federal court rejects a claim that the appellant was overly monitored, micromanaged and then fired due to his race, color, and Jamaican origin. The employer advanced adequate reasons for his dismissal. Holt v. Roadway Sys., #2007 U.S. Dist. Lexis 61037 (W.D.N.Y.).

National Security Issues

     Federal appeals panel sustains the termination of a Secret Service criminal investigator after his top-secret security clearance was revoked. The court found no error in excluding the proposed testimony of a retired supervisor, who supported the appellant's claim that the decision to revoke his security clearance was predetermined. The excluded testimony was not an abuse of discretion, because the record did not demonstrate that it would have proved bias on the part of his superiors. Robinson v. Dept. Homeland Security, #2006-3123, 2007 U.S. App. Lexis 20736 (Fed. Cir.).

Promotional Rights, Procedures and Performance Appraisals

     Maryland federal court rejects a suit filed by firefighters and superior officers who contested a policy of basing its promotions on testing and evaluation instead of rank. The policy did violate their equal protection rights and the plaintiffs lacked standing to sue because they could not show they suffered any injury. Finnin v. Bd. of Co. Cmsnrs., #06-3429, 2007 U.S. Dist. Lexis 55408 (D. Md.).

Race Discrimination - In General

     Fifth Circuit rejects the discrimination and retaliation claims raised by a black, female, former police lieutenant. A white officer twice threw wadded-up paper and repeatedly mocked her. After commenting negatively about the city's treatment of blacks, she made a remark that she would "take care of it" herself. A superior took her gun and placed her on paid administrative leave; she then retired. The appellate panel concluded that she failed to prove that the city created a hostile work environment that resulted in her constructive discharge, and that a reasonable employee in her position would not have felt compelled to resign or retire. McCoy v. City of Shreveport, 2007 U.S. App. Lexis 16582, 100 FEP Cases (BNA) 1812 (5th Cir.).

     Federal appeals panel affirms the denial of a motion to dismiss a black jail employee's race discrimination and freedom of association claims. She alleged that she had been disciplined and terminated because she had dated white men and became pregnant by a white man. Lawson v. Curry, #07-10474, 2007 U.S. App. Lexis 19145 (Unpub. 11th Cir.).

Religious Discrimination

     It is a factual issue whether creating a new position for a Seventh Day Adventist to accommodate her religious belief against working on Sabbath, would impose an undue hardship on the city. Ford v. City of Dallas, #3:05-CV-1676-D,, 2007 U.S. Dist. Lexis 50914 , 101 FEP Cases (BNA) 179 (N.D. Tex.).

Retaliatory Personnel Action

     LAPD officers obtain a consent decree against a woman that chronically abused the agency's IA complaints process. Jones v. Andrade, #BC355541 (Los Ang. Super. 2007).

     It was a question of fact as to whether a state trooper's reporting of potentially unlawful conduct by a superior was protected under the First Amendment. The Supreme Court's decision in Garcetti v. Ceballos, 126 S.Ct. 1951 (2006) does not compel summary judgment for the employer on the plaintiff's retaliation claim. Paola v. Spada, #03cv1628, 2007 U.S. Dist. Lexis 58154 (D.Conn.), on remand from 204 Fed. Appx. 946, 2006 U.S. App. Lexis 28219 (2d Cir.).

     In a civil action brought by former state troopers and firing range instructors, summary judgment for defendants is affirmed as to their First Amendment retaliation claims. The plaintiffs were speaking as employees, not as citizens, when they alleged hazardous conditions, corruption, misconduct, and mismanagement when they spoke with a State Auditor. Foraker v. Chaffinch, #06-4086, 2007 U.S. App. Lexis 20739 (3rd Cir.).

     Sixth Circuit rejects a First Amendment retaliation action brought by a terminated park ranger. Statements she made to a consultant that management hired to interview employees were not made as a citizen, but as an employee. Weisbarth v. Geauga Park Dist., #06-4189, 2007 U.S. App. Lexis 20261, 2007 FED App. 0337P (6th Cir.).

     Federal court dismisses a suit filed by a demoted firefighter because the illegality of the chief's retaliatory action would not necessarily have been clear to a reasonable government official at the time. The firefighter spoke as a citizen on a matter of public concern when he revealed that the chief had a Confederate flag tattoo in violation of the department's policy. Hartwell v. City of Montgomery, #2:06cv518, 487 F.Supp.2d 1313, 2007 U.S. Dist. Lexis 34271 (M.D. Ala.).

Sexual Harassment - In General

     Illinois appellate court overturns an Order of the Illinois Human Rights Commission, finding that a Sheriff's Dept. was strictly liable for the sexual harassment of an employee; management took corrective measures after learning of the misconduct. Sangamon Co. Sheriff's Dept. v. Illinois Human Rights Cmsn., #4-06-0445, 2007 Ill. App. Lexis 947.

     Federal jury awards $150,000 to a woman officer that received porn in her mailbox every day. She also recovered $340,000 in attorneys' fees. She alleged that four command rank officers and seven sergeants tried to deny her allegations. McDermott v. City of Chicago, #1:06-cv-02910 (N.D.Ill.).

Suspensions and Administrative Leave

     Federal Merit Board overturns indefinite suspensions of Bureau of Prisons officers. Correctional officers "may be required to exert force against an inmate as part of their normal duties ...[and] may be punished for their failure to exert appropriate force when dictated by the circumstances." The agency "cannot meet its burden of establishing that suspending a correctional officer without pay during the course of such an investigation promotes the efficiency of the service where the agency has failed to establish any basis to believe that the employee's actions were contrary to the normal and proper execution of his duties." Lamour v. Dept. of Justice, #NY-0752-06-0267, 2007 MSPB 185.

Union and Associational Activity

     Fifth Circuit finds that it was clearly established that a municipal fire chief violated the First Amendment by retaliating against a subordinate for engaging in union activities by submitting a grievance on behalf of the union calling for the chief's termination. Phillips v. City of Victoria, #06-40629, 2007 U.S. App. Lexis 18427 (5th Cir.).

     Reversing the District Judge, the Ninth Circuit reinstates a wrongful discharge action filed by a union in behalf of a TSA screener that claimed he was dismissed for engaging in union activities. "If Congress wishes to deny federal employees the ability to redress alleged constitutional violations, it must state its intention clearly. We conclude that the statutory scheme governing TSA security screeners does not express a clear intention on the part of Congress to preclude judicial review of screeners' constitutional claims." AFGE L-1 v. Stone, #05-15206, 2007 U.S. App. Lexis 21180 (9th Cir.).

     Sixth Circuit finds that a terminated police officer's union activity and speech addressing internal personnel issues were not matters of public concern protected by the First Amendment, where the issues were personal in nature. Van Compernolle v. City of Zeeland, #06-1904, 2007 U.S. App. Lexis 16735 (6h Cir.) affirming, 2006 U.S. Dist. Lexis 32963 (W.D. Mich. 2006).

Untruthfulness & Resume Fraud

     New York appellate court rejects an unusual theory that a probationary NYPD officer should not have been fired for making false and misleading statements to internal affairs investigators, because the underlying offense of credit card fraud occurred before he was hired. The panel also discarded a claim that internal affairs lacked authority to question him about preservice conduct because hiring decisions are made by the city's Dept. of Admin. Services. Matter of Duncan v. Kelly, #104079/04, 2007 NY Slip Op 06408, 2007 N.Y. App. Div. Lexis 8923 (1st Dept.).

Vacation Pay

     A public employer possesses managerial power to require peace officers to use excess deferred vacation time to avoid a year-end cash payouts. Assn. for L.A. Deputy Sheriffs v. Co. of L.A., #B188886, 154 Cal.App.4th 1536, 65 Cal.Rptr.3d 665, 2007 Cal. App. Lexis 1517 (2d Dist.).

Whistleblower Requirements and Protection

     Third Circuit rejects a free speech claim by trooper/instructors at a state police firing range who complained of hazardous conditions. They were speaking pursuant to their official duties when they complained through the chain of command and when they gave statements to the State Auditor. Foraker v. Chaffinch, #06-4086, 2007 U.S. App. Lexis 20739 (3rd Cir.).

     Two former, whistleblower Detroit police officers are awarded $6.5 million against Mayor Kwame Kilpatrick and the City of Detroit. The court instructed jurors that the state's whistleblower protection act required them only to determine if the officers believed the allegations were legitimate and whether they were punished for coming forward. Brown v. Kilpatrick, Wayne Co. Cir.Ct. (2007). Source: Detroit Free Press (9/12/2007).

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RESOURCES

     Report: Congressional Research Service: Federal Prison Industries (updated 2007).

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
Disciplinary Interviews/Subject Matter - see: Untruthfulness
Disciplinary Procedures - Delays - see: Arbitration Procedures
Disciplinary Searches: - see: Criminal Liability
Employee Harassment - Nonsexual - see: Race Discrimination
Free Speech - see: Retaliatory Personnel Action (multiple cases)
Free Speech - see: Whistleblower Protection
Privacy Rights - see: Discovery, Publicity and Media Rights
Reserves and Volunteers - see: Disability Benefits
Union Activity - see: Handicap Discrimination/Specific Disabilities
Workers' Compensation - see: Disability Benefits


AELE Seminars:

Public Safety Discipline and Internal Investigations
Las Vegas Dec. 10-12, 2007

Lethal and Less Lethal Force
Mar. 24-26, 2008 - San Francisco

Click here for more information about all AELE Seminars



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

© Copyright 2007 by A.E.L.E., Inc.
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