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Lethal and Less Lethal Force
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Dec. 15-17, 2008 San Francisco

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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: 2008 FP Aug (web edit.)
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CONTENTS
Monthly Law Journal Article
Administrative Investigations of Police Shootings and Other Critical Incidents:
Officer Statements and Use of Force Reports - Part Two: The Basics
2008 (8) AELE Mo. L. J. 201

Digest Topics
Applicant Rejections
Attorneys' Fees (2 cases)
Civil Service
Collective Bargaining - Duty to Bargain
Damages
Disciplinary Appeals - In General
Disciplinary Appeals - Reviewing Standards
Disciplinary Evidence - Admissibility
Disciplinary Offenses - In General
Disciplinary Offenses - Sexual Misconduct
Disciplinary Procedures - Double Punishment
Disciplinary Punishment (4 cases)
Disciplinary Surveillance
Employee Harassment - Nonsexual
FLSA - 7K Exemption
Family, Medical & Personal Leave
First Amendment Related
Handicap Discrimination - Accommodation
Handicap Discrimination - Specific Disabilities
Injuries to Applicants & Trainees
Privacy Rights
Psychological Exams - Fitness for Duty
Race Discrimination - In General
Race: Reverse Discrimination
Residency Requirements
Retaliatory Personnel Action
Retirement Rights and Benefits
Sex Discrimination - In General
Untruthfulness & Resume Fraud
Whistleblower Requirements and Protection

Resources

Cross_References

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AELE Seminars:

Lethal and Less Lethal Force
Oct. 20-22, 2008 - Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 15-17, 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.

Applicant Rejections

     Federal appellate panel holds that active reserve officers did not have a property interest in being promoted to regular, full-time employment. Garzella v. Borough of Dunmore, #07-2247, 2008 U.S. App. Lexis 11050 (Unpub. 3rd Cir.).

Attorneys' Fees, Sanctions and Legal Defense Rights

     A party suing the federal government may recover paralegal fees from the government at the prevailing market rates under the Equal Access to Justice Act, and is not limited to the cost to the party's attorney. Richlin Security. v. Chertoff, #06-1717, 2008 U.S. Lexis 4522.

     After a county police dept. refused to allow light duty status for pregnant officers, a jury awarded damages to five women plaintiffs. The court also awarded plaintiffs $578,704 for attorneys' fees and costs, noting that "the plaintiffs did not justify the need to retain sixteen attorneys and thirteen support staff from five different firms/agencies to represent six plaintiffs with essentially the same claims" thus reducing the number of overall hours by 25%. Lochren v. Co. of Suffolk, #CV-01-3925, 2008 U.S. Dist. Lexis 38100 (E.D.N.Y.).

Civil Service

     Due to serious overcrowding, the Governor had authority to declare an emergency and to contract with out-of-state private prisons to handle the overload of inmates. Doing so did not violate state constitution's civil service mandate. California Correctional POA v. Schwarzenegger, #C055327, 2008 Cal. App. Lexis 832 (3rd Dist.).

Collective Bargaining - Duty to Bargain

     Arbitrator holds that management "can set and enforce performance standards and enforce work rules [and a] party doesn't lose a contractual right just because it has not been put to use." However, management cannot suddenly begin to enforce a dormant right and must send the union formal notice with a reasonable future date of any intended implementation. County of San Bernardino and SEBA, 124 LA (BNA) 1645 (Grabuskie, 2008).

Damages, Remedies and Enforcement of Settlements

     Oregon's split recovery statute, under which 60 percent of all punitive damages awarded in a state law tort action are allocated to the state, does not violate the Fifth Amendment's prohibition against taking private property by public use, without just compensation. Engquist v. Oregon Dept. of Agriculture, #07-474, 2008 U.S. Lexis 4705.

Disciplinary Appeals & Challenges - In General

     Rejecting a "class of one" in an equal protection lawsuit, the Supreme Court holds that while government employees do not lose their constitutional rights when they go to work, those rights must be balanced against the realities of the employment context. Government offices could not function if every employment decision became a constitutional matter. If class-of-one claims were recognized in the employment context, any personnel action in which a wronged employee can conjure up a claim of differential treatment would suddenly become the basis for a federal constitutional claim. Engquist v. Oregon Dept. of Agriculture, #07-474, 2008 U.S. Lexis 4705.

Disciplinary Appeals & Challenges - Reviewing Standards

     Seventh Circuit sustains a process where disciplinary action is reviewed by a state court, without the ability to accept further evidence or to engage in independent fact-finding. In such cases, the court can remand for additional fact-finding or the taking additional evidence. Michalowicz v. Vil. of Bedford Park, #06-3857, 2008 U.S. App. Lexis 12413 (7th Cir.).

Disciplinary Evidence - Admissibility/In General

     Appellate panel upholds the termination of a corrections officer for threatening a coworker and drug possession. As in the case of a plea of nolo contendere, an arbitrator can consider a plea bargain for accelerated rehabilitation as evidence of her guilt. AFSCME L-1565 v. Dept. of Correction, #AC 28320, 107 Conn. App. 321, 945 A.2d 494, 2008 Conn. App. Lexis 199.

Disciplinary Offenses - In General

     Arbitrator sustains the termination of a municipal employee that intentionally delayed providing notification of his divorce to management so that his ex-wife could continue to access his health insurance coverage; when confronted, the grievant was not honest or forthcoming. City of Eugene and AFSCME L-1724, 124 LA (BNA) 1724 (Henner, 2008).

Disciplinary Offenses/Punishment - Sexual Misconduct

     Tenth Circuit upholds a private oral reprimand for a police officer, who, while off-duty, had sex with another officer, while attending a training session out of town which was paid for in part by her employer. "We think it reasonable for the police department to privately admonish [appellant's] personal conduct consistent with its code of conduct when the department believes it will further internal discipline or the public's respect for its police officers and the department they represent." Seegmiller v. Laverkin City, #07-4096 2008 U.S. App. Lexis 12417 (10th Cir.).

Disciplinary Procedures - Double Jeopardy /Punishment

     First Circuit concludes that it is not double jeopardy to suspend an employee for the purpose of conducting an investigation and to later terminate the employee, based on the facts disclosed in the investigation. Zayas v. Bacardi Corp., #07-1950, 524 F.3d 65, 2008 U.S. App. Lexis 8387 (1st Cir.).

Disciplinary Punishment - In General

     Under New York law, the summary termination of a police officer after a conviction of a misdemeanor is justified in circumstances where the offense "involves a willful deceit or a calculated disregard for honest dealings." Matter of Feola v. Carroll, #83, 2008 N.Y. Lexis 1476.

    Federal appeals court sustains a 30-day suspension of a deputy U.S. marshal for not cooperating with other officers seeking to apprehend an escaped fugitive. Stewart v. Dept. of Justice, #2008-3137, 2008 U.S. App. Lexis 11985 (Fed. Cir.).

     In light of the grievant's thirty years of service, an arbitrator reduces the penalty from a three-day, to a one-day suspension, for requesting a fellow police officer to electronically send her pornographic materials. City of Dayton and FOP L-44, 124 LA (BNA) 1655, AAA Case #52-390-00443-07 (Bell, 2008).

     Swearing at another officer does not merit termination. Harder v. Vil. of Forest Park, #05-C-5800, 2008 U.S. Dist. Lexis 36892 (N.D.Ill.).

Disciplinary Surveillance

     "Because we recognize the diminished expectation of privacy in a vehicle on a public roadway ... we cannot agree that the N.Y. Constitution precluded the warrantless placement of the GPS tracking device on [a] vehicle or retrieval of its data in connection with this ongoing police investigation." People v. Weaver, #101104, 2008 N.Y. App. Div. Lexis 4811 (3rd Dept.).

Employee Harassment - Nonsexual

     Federal court in N.Y. concludes that two sheriff's investigators stated a valid equal protection claim that superiors spied on their families, subjected them to unusual scrutiny, denied them overtime, assigned unfavorable work assignments, attempted to have them disciplined and discharged, and filed false criminal charges against them. Deal v. Seneca County, #07-CV-6497, 2008 U.S. Dist. Lexis 37846 (W.D.N.Y.).

FLSA - 7K Exemption

     Philadelphia's fire dept. paramedics who are assigned to ambulances do not have a responsibility for fire suppression activities and are not exempted from the overtime provisions of the FLSA. Lawrence v. City of Philadelphia, #06-4564, 2008 U.S. App. Lexis 11311, 13 WH Cases2d 1089 (3rd Cir.).

Family, Medical & Personal Leave

     Arbitrator holds that management did not violate the bargaining agreement by denying a correctional officer leave without pay to attend an eight-week certification program for employment as municipal police officer. Although the CBA provided that "employees who request leave for correctional-related educational purposes shall be granted leave without pay for such purposes," the curriculum would not have advanced his knowledge of corrections and the grievant intended to pursue employment as police officer. County of Erie, Penna. and SEIU L-668, 124 LA (BNA) 1733 (Dean, 2008).

First Amendment Related

     First Circuit rejects a civil rights claim filed by a police officer who alleged that his superiors violated his First Amendment and due process rights when he was assigned to new job duties, purportedly in retaliation for filing a lawsuit against them in a local court. The right to file lawsuits is not an absolute First Amendment right and his suit for labor harassment" suit did not address a matter of public concern. Rosado-Quinones v. Toledo, #07-1425, 2008 U.S. App. Lexis 11835 (1st Cir.).

Handicap Laws / Abilities Discrimination - Accommodation - General

     Federal appeals court sustains a judgment for a former state investigator, who suffered from asthma and sarcoidosis. Management had failed to accommodate her reasonable request to change offices to a more suitable environment that would lessen her symptoms. There was evidence that her cold office exacerbated the her illness. Benaugh v. Ohio Civil Rts. Cmsn., #07-3825, 2008 U.S. App. Lexis 10985 (6th Cir.).

Handicap Laws/Abilities Discrimination - Specific Disabilities

Fifth Circuit rejects an ADA claim raised by a former corrections officer who developed traumatic mydriasis and photophobia (extreme sensitivity to sunlight) after an inmate assault. He is not disabled because he is able to see out of his injured eye, he continued to work as officer for nine months after assault, and passed vision tests for a driver's license. Watson v. Texas Youth Cmsn., #07-50295, 2008 U.S. App. Lexis 5468, 10 AD Cases (BNA) 1019 (5th Cir.).

Injuries to Applicants & Trainees

     Fourth Circuit rejects a wrongful death suit filed by the parents of a firefighter trainee. Due process does not impose a duty on municipalities to provide their employees with a safe workplace or to warn them against risks of harm. Waybright v. Fredrick Co. Dept. of Fire & Res. Serv., #07-1289, 2008 U.S. App. Lexis 11755 (4th Cir.).

Privacy Rights

     Federal court dismisses privacy lawsuit filed by a federal employee, who claimed a back injury, and was videotaped by contract investigators while lifting heavy boxes into his pickup truck. Because the taping occurred while outdoors and adjacent to a public road, the employee lacked a reasonable expectation of privacy. Ryan v. Whitehurst, #SA-07-CA-723, 2008 U.S. Dist. Lexis 36432 (W.D. Tex.).

Psychological Exams and Standards
     - Fitness for Continued Duty or a Return to Active Duty

     Federal court grants a summary judgment to the city in an action where a woman officer claimed that the city retaliated against her for filing a prior lawsuit by asking her to submit to a fitness for duty examination when she had no record of deficient performance. Her appointment with a psychologist was voluntary and management took no action as a result of her visit, even though the psychologist found her unfit for duty. Semsroth v. City of Wichita, #06-2376, 2008 U.S. Dist. Lexis 35379 (D. Kan.).

Race Discrimination - In General

     In a race discrimination lawsuit, the D.C. Circuit upholds a reorganization of the D.C. Police canine squads after management noticed that one squad was the source of 11 of the 17 total dog bites for all four squads that year, and that all but one of the officers on that squad were Caucasian and all of the people that had been bitten were African American. "Although race may have played a role in the reorganization, we agree with the District that a reasonable jury could not conclude, as the officers contend, that the justifications for the reorganization proffered by the District were but pretexts for racial discrimination." Ginger v. Dist, of Columbia, #07-7054, 008 U.S. App. Lexis 12335 (D.C. Cir.).

Race: Reverse Discrimination

     Management articulated a legitimate, nondiscriminatory reason for its failure to promote a white firefighter because the others who were offered the positions he sought had qualifications that the employee lacked, including additional training and specialized experience. Van Pool v. C&C of San Francisco, #06-16853, 2008 U.S. App. Lexis 11412 (Unpub. 9th Cir.); earlier decision at 74 F.3d 1247 (Unpub. 9th Cir. 1996). Note: The plaintiff has litigated the promotional claim for 15 years.

Residency - Continuing Requirements

     Four appellate courts overturn a 2006 Ohio law, R.C. 9.481(B)(1), prohibiting municipalities from enacting residency requirements. Ohio charter cities may continue to enforce residency regulations for firefighters, police officers and other employees. City of Cleveland v. State, #89486, 2008 Ohio App. Lexis 2246, 2008-Ohio-2655 (8th Dist.); City of Dayton v. State, #22221, 2008 Ohio App. Lexis 2179, 2008-Ohio-2589 (2nd Dist.); City of Lima v. State, #1-07-21, 2007-Ohio-6419 (3rd Dist.); State v. City of Akron, #23660, 2008-Ohio-38 (9th Dist.).

Retaliatory Personnel Action

     California Highway Patrol to pay $995,000 to settle a 14-count lawsuit brought by a former command-level officer who claimed retaliation because he sought promotion to commissioner. Acevedo v. Calif. Highway Patrol, #06AS03307 (Sacramento Super.)

Retirement Rights and Benefits

     In a case where a retired firefighter was erroneously overpaid $14,768 in benefits, the Pension Board had jurisdiction to correct the mistake. Although there is no statute that expressly authorizes a pension board to reduce the amount of payments it has awarded to a pensioner, the erroneous overpayments were not "an award of pension benefits." Fields v. Schaumburg Firefighters' Pension Fund, #1-07-2721, 2008 Ill. App. Lexis 497 (1st Dist.).

Sex Discrimination - In General

     Eleventh Circuit rejects a gender bias claim brought by a woman officer who was not transferred as a school resource officer. At the particular school the students had severe behavioral problems, the male that was selected had a physically imposing stature and tactical skills, and the plaintiff refused to accept offer of a similar position at another school. Webb-Edwards v. Orange County Sheriff's Office, #07-12599, 525 F.3d 1013, 2008 U.S. App. Lexis 8666, 103 FEP Cases (BNA) 157 (11th Cir.).

Untruthfulness & Resume Fraud

****Editor's Case Alert****

Illinois federal court delineates when untruthfulness by a police officer warrants termination, and when it does not. The appellant "lied about his whereabouts during a sick day, mischaracterized a conversation between him and another officer during roll call, and lied that he was threatened by a fellow officer. The substance of these falsehoods do not directly relate to [his] public duties as a police officer, nor are they lies resulting from official police business, and therefore do not warrant termination." Harder v. Vil. of Forest Park, #05-C-5800, 2008 U.S. Dist. Lexis 36892 (N.D.Ill.).

Editor's addendum

The court elaborated, as follows:

     "Numerous Illinois courts have been faced with determining when an officer's dishonesty warrants dismissal. While not creating a bright-line rule, they have generally separated the lies into two categories: those which relate directly to the officer's public duties and those which only relate to internal police administration. [1]

     "The former warrant termination, the latter do not. The 'key factor' is 'the subject matter of the falsehood, more specifically, how it relates to a policeman's duties to the public.'

     "Examples of lies that relate to an officer's public duties include falsely characterizing grand jury testimony, lying during an internal investigation regarding whereabouts and actions during an emergency police call, lying about damage to a squad car, lying to an FBI agent during an official investigation, lying on an employment application, lying that a judicial order existed reinstating the officer to work, and falsely denying romantic relations with a felon. [2]

     "Examples of lies relating to internal police administration mostly involve lying about attending to personal business while on duty; testifying in one's own divorce proceeding, but telling a supervisor that it was official business; falsely denying driving an unlicensed personal car while on duty; and falsely stating that the officer's reason for leaving in his squad car while on duty was to transport his stranded family, when he was actually attending to his race horses." [3]

     1. Kupkowski v. Bd. of Fire and Police Comm'rs., 71 Ill. App. 3d 316, 324-25, 389 N.E.2d 219, 27 Ill. Dec. 407 (Ill. App. 1979).

     2. See Noro v. Police Board, 47 Ill. App. 3d 872, 365 N.E.2d 419 (Ill. App. 1977); Thanasouras v. Police Board, 33 Ill. App. 3d 1012, 339 N.E. 2d 504 (Ill. App. 1975); Mihalopoulos v. Bd. of Fire and Police Comm'rs., 60 Ill. App. 3d 590, 376 N.E.2d 1105, (Ill. App. 1978); Kupkowski, 71 Ill. App. 3d at 325; Merrifield v. Ill. State Police Merit Board, 294 Ill. App. 3d 520, 691 N.E.2d 191 (Ill. App. 1997); Valio v. Bd. of Fire and Police Comm'rs., 311 Ill. App. 3d 321, 724 N.E. 2d 1024 (Ill. App. 2000); DeMauro v. Loren-Maltese, 2001 U.S. Dist. Lexis 12409 (N.D. Ill. Aug. 15, 2001).

     3. See Humbles v. Bd. of Fire and Police Comm'rs., 53 Ill. App. 3d 731, 368 N.E.2d 1049 (Ill. App. 1977); Kreiser v. Police Board, 69 Ill. 2d 27, 370 N.E.2d 511 (Ill. 1977); Christenson, 83 Ill. App. 3d at 478.

Whistleblower Requirements and Protection

     Whether a disclosure under the federal Whistleblower Protection Act is unprotected because "it was made as part of an employee's normal job duties," is governed by three categories into which a disclosure may fall, only the latter two of which are protected under the WPA: (1) disclosures made as part of normal duties through normal channels; (2) disclosures as part of normal duties outside of normal channels; and (3) disclosures outside of normal duties. "The third category involves the situation in which the employee is obligated to report the wrongdoing, but such report is not part of the employee's normal duties or the employee has not been assigned those duties." Kahn v. Dept. of Justice, #2007-3216, 2008 U.S. App. Lexis 12425 (Fed. Cir.).

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RESOURCES

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

Contracts and Outsourcing - see: Civil Service
Disciplinary Surveillance - see: Privacy Rights
Health Insurance - see: Disciplinary Offenses
Pregnancy Discrimination - see: Attorneys' Fees
Untruthfulness - see: Disciplinary Offenses
Wrongful Discharge - see: Disciplinary Appeals & Challenges


AELE Seminars:

Lethal and Less Lethal Force
Oct. 20-22, 2008 - Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 15-17, 2008 San Francisco

Click here for more information about all AELE Seminars



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Return to the monthly publications menu
Access the multiyear Employment Law Case Digest
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© Copyright 2008 by A.E.L.E., Inc.
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