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

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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 June (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 One: The Prologue
2008 (6) AELE Mo. L. J. 201

Digest Topics
Age Discrimination - Promotion
Back Pay Claims and Awards
Collective Bargaining - Duty to Bargain (2 cases)
Criminal Liability
Defamation
Disability Benefits - Appeals
Disability Benefits - Offsets
Disciplinary Appeals
Disciplinary Discovery
Disciplinary Offenses - In General (2 cases)
Disciplinary Offenses - Sexual Misconduct
Disciplinary Procedures - Delays
Disciplinary Punishment (4 cases)
Disciplinary Surveillance
Drug Screening and Specimen Testing (2 cases)
E-Mail/Internet - Legal Issues
Employee Harassment - Nonsexual
FLSA - Overtime
First Amendment Related
Genetic Privacy & Testing
Health Insurance & Benefits
Impasse Arbitration
Privacy Rights
Probationary Employment
Product Liability
Religious Discrimination
Retaliatory Personnel Action
Telephone Monitoring / Video Taping (3 cases)

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.

Age Discrimination - Promotion/Assignment

     Federal court rejects an ADEA action brought by a 51 year old that was not selected for a promotion in the Marshal's Service. The successful candidate, who was 37, achieved a higher merit-promotion score, earned a law degree and was more experienced in collateral duties than other applicants. Witkowich v. Gonzales, #05 Civ. 7756, 2008 U.S. Dist. Lexis 19827 (S.D.N.Y.).

Back Pay Claims and Awards

     Arbitrator rules that a security contractor must pay six months back wages to an officer that was suspended without pay, following her arrest for DUI; she was not convicted. A contractor is liable for back pay, even if the wages cannot be collected from the client. Reinstatement without back pay is justified only when management has grounds, independent of an arrest, to suspend an employee. Wackenhut Corp. and Int. Union, Security, Police & Fire Professionals L-403, 124 LA (BNA) 1345, FMCS Case #060831/9295-3 (Kravit, 2008).

Collective Bargaining - Duty to Bargain

     Unpaid volunteer police officers are not entitled to rights of collective bargaining. Griffith v. Lanier, #07-7072, 2008 U.S. App. Lexis 7149 (D.C. Cir.).

     Appellate court sustains an unfair labor practice charge when management unilaterally transferred work of supervising state police dispatchers from members of a bargaining unit consisting of police officers to civilians that were represented by another labor organization. Penn. State Police v. PLRB, #2274-CD-2005, 912 A.2d 909,183 LRRM (BNA) 2923; appeal denied 928 A.2d 1292 (2007).

Criminal Liability

     Texas Supreme Court holds that an elected county constable who is convicted of a felony may be removed from office, even if the conviction was based on conduct that occurred before his election. In re Eduardo Bazan, #06-0952, 51 Tex. Sup. J. 673, 2008 Tex. Lexis 230.

Defamation - In General

     A police chief had a triable defamation claim against the public safety director who published a report containing an inmate's allegation that the police chief had impregnated a juvenile prostitute; the director failed to learn that the chief had undergone a vasectomy. Jackson v. City of Columbus, #2006-2096, 2008-Ohio-1041, 117 Ohio St.3d 328, 883 N.E.2d 1060, 27 IER Cases (BNA) 516, 2008 Ohio Lexis 558.

Disability Rights and Benefits - Hearing Procedures and Appeals

     Arbitrator finds a grievance to be non justiciable. The union should seek proper relief for the grievant before the state Pension Board and the Workers Compensation Court. City of Tahlequah, Okla. and IAFF L-4099, FMCS Case #06/512272-7, 124 LA (BNA) 1147 (Nicholas, 2007; rptd. 2008).

Disability Rights and Benefits - Offset and Subrogation

     Ninth Circuit holds that a police disability pension plan can deduct the amount of worker's compensation a disabled or injured officer may receive. The offset does not violate the Americans with Disabilities Act. Brown v. City of Los Angeles, #06-0952, 2008 U.S. App. Lexis 7650 (9th Cir.)

Disciplinary Appeals & Challenges- In General

     Iowa deputy sheriffs must appeal terminations to the civil service commission. A bargaining agreement clause providing for arbitration contravenes Iowa Code 314A12. Kucera v. Baldazo, #05-2138, 745 N.W.2d 481, 2008 Iowa Sup. Lexis 34.

Disciplinary Discovery

     Park Police did not violate the Privacy Act in failing to preserve a document or to establish safeguards to protect it from destruction. The agency was not liable for failing to search a computer before the hard drive was erased, and the Act does not mandate document retention or provide a remedy for destruction. Chambers v. Dept. of Interior, #05-0380, 538 F.Supp. 262, 2008 U.S. Dist. Lexis 20065, 27 IER Cases (BNA) 642 (D.D.C.) on remand from 515 F.3d 1362 (D.C. Cir. 2008).

Disciplinary Offenses - In General

     Arbitrator finds that management lacked just cause to issue one-day suspension to a police officer who highlighted the names of two fellow officers on a printout of overtime hours that was on a stationhouse bulletin board, along with comments that insulted his coworkers about their overtime use. Department regulations did not specify what kinds of comments are inappropriate for the bulletin board. City of Parma Heights and Ohio PBA, 124 LA (BNA) 1196 (Sambuco, 2007).

     Arbitrator sets aside a three-day suspension of police officer for trespass and for bringing discredit upon the police department; an involvement in a domestic quarrel is not enough to find that the officer violated a law or departmental rule. An officer's exercise of poor judgment does not equate to a willful act. City of Rockford and PBA, 124 LA (BNA) 1416, FMCS Case #07/51455 (Cohen, 2008).

Disciplinary Offenses/Punishment - Sexual Misconduct

     Arbitrator concludes that management had just cause to terminate a police officer for sexually abusing a minor that was arrested for DUI. The fondling of a fifteen-year-old handcuffed intoxicated female is an extremely serious offense; progressive discipline is not warranted in an extremely serious incident. City of Fort Worth and Individual Grievant, 124 LA (BNA) 1412, AAA Case #70-390-00310-07 (Moore, 2008).

Disciplinary Procedures - Delays & Time Limits

     Federal appeals court rejects a former Customs Service employee's attempt, filed in March 2007, to overturn a Dec. 1998 termination settlement agreement. The employee did not bring a timely appeal and failed to provide evidence of good cause for filing an untimely petition. Whitworth v. Merit Systems Protection Board, #2008-3032, 2008 U.S. App. Lexis 4966 (Unpub. Fed. Cir.), affirming 2007 M.S.P.B. 190, 106 M.S.P.R. 401.

Disciplinary Punishment

     Federal merit board sustains the termination of an ICE agent who unplugged a camera while processing aliens, and falsely told his supervisor that the machine was not functioning. One of the prisoners had been severely injured while being taken into custody. Rodriguez v. Dept. of Homeland Security, #DA-0752-07-0091-I-1, 2008 MSPB 25.

     Arbitrator upholds the termination of a corrections officer for insubordination; he refused to comply with a sergeant's order to turn over a cell phone, possession of which was in violation of agency rules. Discharge was appropriate because the grievant had signed a last chance agreement. Multi-County Correctional Center and FOP Ohio, FMCS Case #07/03923, 124 LA (BNA) 1519 (Bordone, 2007; rptd. 2008).

     Arbitrator sustains a 15-day suspension of an off-duty police officer that used profanity while at hospital. Although not in uniform, she had identified herself as an officer, and threatened hospital security officers. City of Houston and Individual Grievant, AAA Case #0-390-00282-06, 124 LA (BNA) 1508 (Moore, 2008).

     Progressive discipline: Arbitrator affirms a five-shift suspension of a fire captain for negligence, where it was the fifth incident leading to disciplinary action in the prior few months. City of Livingston and IAFF L-630, 124 LA (BNA) 1516 (Calhoun, 2008).

Disciplinary Surveillance

     Arbitrator, in a wrongful discharge appeal, concludes that employers have a management right to know who is on a worksite at any time, including the retrieval of electronic data from a card swipe entry authorization system. Mich. Educ. Assn. and United Staff Org., AAA Case #54-390-01224-05, 24 LA (BNA) 1322 (Daniel, 2007).

Drug Screening and Specimen Testing

     Federal appeals court sustains the termination of a Border Patrol Agent with more than 20 years service who tested positive for cocaine in a random drug test. Although he submitted to secondary urine and hair follicle testing plus a polygraph examination, all of which was negative, the documentary and testimonial evidence supports a conclusion that the chain of custody for the original urine sample was intact and that the testing was correct. Meza v. Dept. of Homeland Security, #2007-3150, 2008 U.S. App. Lexis 8743 (Unpub. Fed. Cir), affirming 2006 MSPB Lexis 7608.

     Appellate court sustains the termination of a public employee for failing to appear for a drug test on his day off. While he was not scheduled to work on the day of the test, he would have been paid had he reported. Scott v. City of Cleveland, #89707, 2008 Ohio 1926, 2008 Ohio App. Lexis 1654 (8th Dist.).

E-Mail/Internet - Legal Issues

     National Labor Relations board, in a 3-to-2 ruling, holds that employers can prohibit union solicitations on internal e-mail systems. The Guard Pub. Co. and Eugene Newspaper Guild, CWA L-37194, # 36-CA-8743-1, 351 NLRB No. 70, 2007 NLRB Lexis 499, 183 LRRM (BNA) 1113

Employee Harassment - Nonsexual

     Ninth Circuit affirms a jury's defense verdict in a harassment suit filed by the first woman selected as member of Portland's emergency response team. Reyna v. City of Portland, 05-36063, 2007 U.S. App. Lexis 6270, 102 FEP Cases (BNA) 1884 (9th Cir.).

FLSA - Overtime - in General

     Arbitrator affirms a past practice of using the two-tier formula for calculating overtime. Special pay supplements are excludable. City of Santa Rosa and POA, CSMCS Case No. ARB-06-0595, 124 LA (BNA) 1463 (Staudohar, 2008).

First Amendment Related

     Federal court holds that city police officers that are fired for cooperating in a state investigation lack First Amendment protection. Unlike citizens, they have a duty to cooperate. Cheek v. City of Edwardsville, #06-2210, 514 F.Supp.2d 1220, 2007 U.S. Dist. Lexis 63097 (D.Kan.).

Genetic Privacy & Testing

     House of Representatives agrees to a Senate amendment to H.R. 493 (110th Congress), to prohibit discrimination on the basis of genetic information with respect to health insurance and employment. It passed by a vote of 414 to 1, clearing the measure for the President. Employers, as defined in §701(b) of the Civil Rights Act of 1964 and §304(a) of the Government Employee Rights Act of 1991, may not decline to hire or discharge any employee, or to otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information. Genetic Information Nondiscrimination Act of 2008; an overview of genetic discrimination is at http://www.genome.gov/10002077

Health Insurance & Benefits

     The Office of Personnel Management now authorizes insurance carriers participating in federal employees health benefits plans to reimburse physicians who screen their patients for substance use behavior (alcohol, illicit drugs, and prescription drug abuse) and to provide intervention programs. Office of Natl. Drug Control Policy News Release (4-7-2008).

Impasse Arbitration

     New York appellate court confirms that impasse arbitration panels must examine the factors enumerated in a statute, but rejects the argument that an award is invalid if the panel fails to address each factor in arriving at a determination. In re Arbitration of Buffalo Firefighters L-282, #79-CA-03590, 2008 NY Slip Op 861, 850 N.Y.Supp.2d 744, 2008 N.Y. App. Div. Lexis 892.

Privacy Rights

     Ninth Circuit finds no error by the lower court in refusing to order the National Park Service to seal the personnel records of a former law enforcement officer that had made twenty-four false entries on her job applications. Lane v. Dept. of Interior, #06-15191, 2008 U.S. App. Lexis 9521 (9th Cir.).

Probationary Employment

     Management did not violate the plaintiff's due process and expressive association rights by terminating his employment as a probationary officer. Under state law, a cadet can be dismissed for any reason or none at all. Grabiak v. Penn. State Police, #06-4078, 2008 U.S. App. Lexis 9119 (Unpub. 3rd Cir.).

Product Liability

     Ballistic vest manufacturer agrees to pay the U.S. Government $960,000 to settle a suit charging that the firm violated the False Claims Act by supplying defective Zylon® bulletproof vests. In 2005 the DoJ intervened in a civil action against Second Chance Body Armor and Toyobo; Second Chance filed for bankruptcy in 2004. In re Protective Products International Inc., DoJ Press Release 08-288. Also see U.S. v. Second Chance Body Armor Inc., #1:04-cv-00280 and U.S. v. Toyobo Co. Ltd., #1:07-cv-01144 (D.D.C.).

Religious Discrimination

     Federal court declines to dismiss a discrimination action brought by a Muslim Arab-American law enforcement officer against the city, where an employee of an outside contractor caused the offensive behavior. Doe v. City of New York, #06-CV-13738, 102 FEP Cases (BNA) 1478, 2008 U.S. Dist. Lexis 33488 (S.D.N.Y.).

Retaliatory Personnel Action

     California appeals court affirms a verdict for a former police officer that alleged sex discrimination and retaliation. The jury awarded $530,012 in economic and $372,503 in non-economic damages on her claim for discrimination, plus $59,150 in economic and $287,500 in non-economic damages on her claim for retaliation. Zanone v. City of Whittier, #B189567, 2008 Cal. App. Lexis 597 (2nd Dist.).

Telephone & Pager Monitoring / Audio & Video Taping

     In an action brought by VA hospital police officers because of management's surreptitious video surveillance of their break room, a federal court holds that the officers lacked a valid claim under the Federal Tort Claims Act. However, although management had a legitimate interest in eradicating sexual discrimination in the workplace, there was insufficient evidence in the record to warrant an encroachment into the officers' privacy via surveillance video. Rosario v. U.S.A., #Civ-06-1517, 2008 U.S. Dist. Lexis 21297 (D.P.R.).

     Because an emergency communications call center's recording equipment cannot discern whether an outbound call is of a personal nature or an emergency callback, all outbound calls were taped without notice to the caller. A Florida appellate court affirms the dismissal of a privacy suit brought by employees. Brillinger v. City of Lake Worth, #4D07-2033, 2008 Fla. App. Lexis 5200 (4th Dist.).

     A detective lacked qualified immunity from an officers' claim that he violated Fourth Amendment by installing a warrantless video-surveillance system in the locker room, in response to reported theft. Officers did not receive notice about system; the locker room was used for private activities and was not open to public. Bernhard v. City of Ontario, #06-55736, 27 IER Cases (BNA) 495, 2008 U.S. App. Lexis 6404 (Unpub. 9th Cir.).

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RESOURCES

  Articles:

     Officer safety: London Police test a precise locating system that uses automated radio technology.

     Pregnancy: Pregnancy Discrimination Act, by Lisa Baker, Mar. 2008 FBI Law Enforcement Bulletin

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
Arbitration Procedures - see: Disciplinary Appeals
Reserves and Volunteers - see: Collective Bargaining
Privacy Rights - see: Telephone Monitoring / Video Taping
Sex Discrimination - see: Retaliatory Personnel Action
Suspensions - see: Back Pay Awards
Union Activity - see: E-Mail/Internet
Whistleblower Protection - see: First Amendment Related


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



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 2008 by A.E.L.E., Inc.
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