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Alcohol Abuse & Testing & Rehabilitation

     Even if a police chief’s alcoholism problem was a partial cause of a drunk-driving incident, a city can hold the chief to the same job performance standards as other employees under 42 U.S. Code §12114(c). Budde v. Kane County, #06-C-1165, 2009 U.S. Dist. Lexis 22118 (N.D. Ill.).

Arbitration Procedures

     In a suit where security personnel raised discrimination issues, the Supreme Court holds that a provision in a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims was enforceable as a matter of federal law. 14 Penn Plaza v. Pyett, #07-581, 2009 U.S. Lexis 2497.

     In an action claiming that a city breached its obligations under the Employee Retirement Income Security Act of 1974 to make contributions to the fund, the city could not seek dismissal on the ground that a bargaining agreement called for binding arbitration. The CBA did not empower the city to initiate arbitration. Dugan v. City of W. Chicago v. Int. Union, etc., #08 C 2223, 2009 U.S. Dist. Lexis 22110 (N.D. Ill.).

Arbitration Punishment Awards – Right of Courts to Interfere

     Nebraska Supreme Court overturns an arbitration award that reinstated a state patrol officer who had joined the Knights Party, a Ku Klux Klan affiliated racist organization. "Nebraska public policy precludes an individual from being reinstated to serve as a sworn officer in a law enforcement agency if that individual’s service would severely undermine reasonable public perception that the agency is uniformly committed to the equal enforcement of the law and that each citizen of Nebraska can depend on law enforcement officers to enforce the law without regard to race." State v. Henderson, #S-07-010, 277 Neb. 240, 2009 Neb. Lexis 28.

• See, Regulation of an Employee’s Off-Duty Activities - Membership in Controversial Organizations, AELE Monthly Law Journal (Feb. 2008).

Collective Bargaining - In General

     Bankruptcy court rules that a city has the authority to void its existing union contracts in its effort to reorganize. Public workers lack the protections of union workers for private companies. In re City of Vallejo, Calif., #08-26813, Memorandum decision (PACER Doc. 473); Findings of Fact & Conclusions of Law (Bank. E.D. Cal. 2009).

Criminal Liability

     Supreme Court declines to hear an appeal from two former Border Patrol agents who were convicted of shooting a fleeing drug smuggler and trying to cover up the incident. Compean v. U.S., #08-756, 2009 U.S. Lexis 1983; Ramos v. U.S., #08-755, 2009 U.S. Lexis 2106 (2009).

Disciplinary Offenses - In General

     Arbitrator overturns a ten-day suspension of a firefighter for using profanity in an argument with a coworker. Profanity is common in fire stations and other firefighters received lesser discipline for more serious offenses. "... it is noteworthy that had the City only required anger management classes for the grievant, no discipline would have [been] found to exist." City of Springfield, Ohio and IAFF L-333, FMCS Case #07/60088-8, 25 LA (BNA) 1756 (Paolucci, 2008).

     The offense of "Selling Goods in Commerce at Unreasonably Low Prices Eliminating Competition" in violation of 15 U.S. Code §13a (2000) "is not a crime involving dishonesty or false statement." Appellate court overturns the termination of a police officer and rejects the prosecutor’s claim that appellant’s conviction in federal court would impeach his credibility in the local courts. Brady v. Maryland, 373 U.S. 83 (1963), and its progeny "do not require the State to disclose evidence that is inadmissible for impeachment purposes." Reichert v. Bd. of Fire and Police Cmsnrs. of Collinsville, #5-07-0570, 2009 Ill. App. Lexis 108 (5th Dist.).

Disciplinary Procedures - In General

     Although Illinois law requires that a disciplinary complaint against a peace officer "must have the complaint supported by a sworn affidavit," the law is complied with when a superior officer signs on information and belief. Firsthand knowledge is not required. Sherwood v. City of Aurora, No. 2-08-0300, 2009 Ill. App. Lexis 83 (2nd Dist.).

Disciplinary Punishment - In General

     Ohio arbitrator sustains disciplinary action against a firefighters’ union president for distributing a rap song that was critical of his superiors. "... there is sufficient case law for the proposition that internal harmony of a fire department may be adversely effected by a firefighter undermining supervisory authority by such adverse public criticism." The punishment was reduced from termination to a one-month suspension. Union Twp. and Prof. Firefighters L-3412, FMCS Case #08/02678, 125 LA (BNA) 1638 (Rosen, 2008).

Discovery, Publicity and Media Rights

     Rescinding a Memorandum of Oct. 12, 2001, Attorney General Eric Holder issues new Freedom of Information guidelines pursuant to President Obama’s policy, directing all executive branch departments and agencies to maintain a presumption of openness and to take affirmative steps to make information public. The DoJ will defend a FOIA request only if the agency reasonably foresees that a disclosure would harm a statutorily protected interest or the disclosure is prohibited by law. (Memo dated Mar. 19, 2009).

Drug Abuse and Rehabilitation

     Arbitrator sustains the termination of a police officer who tested positive for benzoylecgonine (ecgonine benzoate), the primary metabolite of cocaine. Although the grievant claimed that he was "an excellent candidate for rehabilitation," the arbitrator noted that "an employer has no legitimate interest in whether or not a discharged employee ever achieves rehabilitation." Management did not act in capricious, unreasonable, or arbitrary manner when it terminated the grievant. City of Pharr, Tex. and Individual Grievant, 125 LA (BNA) 1729, AAA Case #A70-390-00593-08 (Jennings, 2009).

Family, Medical & Personal Leave

     Federal court upholds a FMLA claim, after a public employee was fired following her return from medical leave for chemical sensitivity to paper toxins. Additionally, if a FMLA claim is based on the same facts as the state law claim, the result can differ. Sanders v. City of Newport, #07-0776, 2009 U.S. Dist. Lexis 19101 (D. Ore.).

Firearms - Restrictions on Wearing

     Supreme Court upholds the "Lautenberg Amendment" [18 U.S. Code §922(g)(9)] which prohibits anyone convicted of a "misdemeanor crime of domestic violence" from possessing a weapon. U.S. v. Hayes, #07-608, 2009 U.S. Lexis 1634, 172 L.Ed.2d 816.

• See, Legal Aspects of Firearms Restrictions - Management’s Right to Restrict or Forbid an Officer from Carrying Firearms, Feb. 2009 AELE Monthly Law Journal.

Firearms/Weapons - Other Issues

     Tenth Circuit holds that an Oklahoma law holding employers criminally liable for prohibiting employees from storing firearms in locked vehicles on the employer’s property is not preempted by the federal Occupational Health and Safety Act. Ramsey Winch v. Henry, #07-5166, 2009 U.S. App. Lexis 3034 (10th Cir.).

Hairstyle and Appearance Regulations & Discrimination

     Appellate court rejects a no-beard rule for firefighters who claim a religious exemption. "The positive pressure in the SCBA system is adequate to protect the bearded firefighter from any leakage that may be caused by facial hair." Potter v. Dist. of Columbia, #07-7164, 2009 U.S. App. Lexis 4540 (D.C. Cir.).

• See, Grooming and Appearance Rules for Public Safety Workers - Hair Regulations, AELE Monthly Law Journal (Jan. 2007).

Handicap Laws / Abilities Discrimination - In General

     When an employee raises a claim of disability discrimination based on an injury incurred while on military leave, "the fact that the injury was incurred during military service is incidental to the claim of disability discrimination and does not make the appellant’s claim a USERRA claim." Henson v. U.S. Postal Service, Docket # DA-0752-08-0230-I-1, 2009 MSPB 38.

Health Insurance & Benefits

     Section 6432 of the American Recovery and Reinvestment Act of 2009 provides premium assistance to persons eligible for a COBRA continuation of group health insurance coverage due to an involuntary termination of employment. The Act provides for a subsidy of 65 percent of the COBRA premium charged to an individual for a maximum period of nine months, which is offset by a reduction in employer payroll taxes.

Inefficiency, Performance Standards, Negligence and Incompetence

     Federal Merit Board sustains the termination of a TSA screening manager who failed two "Standard Operating Procedures Quizzes." A federal agency "has considerable discretion to determine what the performance elements for a position will be and how they will be measured." Winlock v. Dept. of Homeland Security, #DA-0752-08-0261-I-1, 2009 MSPB 23.

Injuries to Employees

     Federal court finds that the DEA breached its duty of fair dealing inherent in an implied-in-fact contract with undercover informant SGS-92-X003, known as the "Princess," by "failing to follow its own protocol in sending her to Colombia." In 1995, the informant endured three months in captivity in a windowless, dirt-floor room where she slept on a straw mattress. Damages are to be computed in a separate proceeding. SGS-92-X003 v. U.S., #97-579C, 2009 U.S. Claims Lexis 31 (2009); prior opin. (2007).

     Appellate court rejects a class action lawsuit filed by Chicago police officers that challenged the power of the city to recover the cost of medical expenses and wages paid them from judgments the officers have obtained against the third parties that caused compensable injuries. Edwards v. City of Chicago, #1-07-0741, 2009 Ill. App. Lexis 128 (1st Dist.).

Military Leave

     Pay differential legislation enacted: Section 751 of the Omnibus Appropriations Act of 2009 adds a new section, which provides that eligible civilian employees of the federal government will receive a supplemental payment equal to the amount by which their civilian basic pay exceeds their military pay and allowances allocable to the given period. 5 U.S. Code §5538; Public Law 111-8.

Out of Title Assignments

     Arbitrator holds that management did not violate the bargaining agreement when it continued to assign dispatchers, who are in the police union, to answer telephones and respond to lobby intercom on weekends when records clerk, who are in a different bargaining unit, are not at work. "Dispatchers are not being required, nor asked, to work out of jurisdiction. The FOP is not taking work from, nor infringing upon the work jurisdiction of, AFSCME employees." City of Elyria and FOP Ohio, FMCS Case #080715/03884-8, 125 LA (BNA) 1793 (Sellman, 2009).

Pay Disputes - Overtime Claims

     In a compensatory time dispute involving Chicago police officers, the district court erred in granting an injunction against the city. An injunction is not the appropriate remedy, as there is an adequate remedy at law. Heimann v. City of Chicago, #08-1555, 2009 U.S. App. Lexis 6074 (7th Cir.).

Physical Impairments - Rejection or Termination

     Pennsylvania appellate court sustains the termination of a police officer because he lost his sense of smell (Anosmia), after an off-duty motorcycle collision. Management claimed that a lack of smell creates a safety hazard, because officers need to be able to detect alcohol, dangerous chemicals, marijuana, natural gas leaks and smoke. "... Honorable Discharge was appropriate because the evidence sufficiently demonstrated that [the appellant] suffered a physical disability that rendered him unfit to serve as a police officer. [He] patrolled alone and served as a first responder in instances that required a sense of smell to ensure his safety and the safety of others." Agostino v. Twp. of Collier, #1556 C.D. 2008, 2009 Pa. Commw. Lexis 116.

Privacy Rights

     Section 13402 of the American Recovery and Reinvestment Act of 2009 requires an entity covered by HIPAA to notify individuals if their "unsecured" health information has been breached. See, CDT’s summary of the legislation.

Reductions in Force

     California appellate court holds that a municipality’s decision to lay off firefighters is not a mandatory subject of bargaining, although the effects of a layoff decision, such as workload and safety concerns, are negotiable. IAFF L-188 v. PERB (Richmond), #A114959, 2009 Cal. App. Lexis 373 (1st Dist.).

     Ninth Circuit rejects a union claim that employee layoffs violated the National Labor Management Relations Act. A county is not an employer; the NLRA excludes as states and political subdivisions. Int. Union of Oper. Engineers v. Co. of Plumas, #07-16001, 2009 U.S. App. Lexis 5822 (9th Cir.).

• See, Public Sector Layoffs – Part One, AELE Monthly Law Journal (June, 2009). Part Two will be in the July MLJ.

Retaliatory Personnel Action

     Appellate court rejects a claim by a state trooper, who was fired for misconduct, that his termination was in retaliation for public criticism of the agency; several years had elapsed between the two events. Zeglen v. Pappert, #08-2096, 2009 U.S. App. Lexis 5987 (Unpub. 3rd Cir.).

Stress Related Claims and Defenses - Research Articles/Books

    Article: Officer Needs Assistance: Police Officers’ Attitudes and Mental Health After Critical Incident Involvement, by Andrew M. Peters, 9 (1) Law Enforcement Executive Forum 53-66 (2009).

     Article: A Prospective Study of Trait Anger and PTSD Symptoms in Police, by Susan M. Meffert et al., 21 (4) Journal of Traumatic Stress 410–416 (Aug. 2008).

Editor’s Note: Also see, Critical Incident Stress in Law Enforcement, by Arthur W. Kureczka, 65 (2) FBI Law Enforcement Bulletin (Feb-Mar 1996), The FBI’s Critical Incident Stress Management Program, by V. J. McNally and R. M. Solomon, 65 (2) FBI Law Enforcement Bulletin 20 (Feb. 1999), and Managing Undercover Stress, by S. Band & D. Sheehan, 68 (2) FBI Law Enforcement Bulletin 1 (Feb. 1999).

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RESOURCES

     Alternative employment: Article, "Job Sharing: A Viable Option for Law Enforcement?" 78 (3) FBI Law Enforcement Bulletin 14 (Mar. 2009).

     Recruiting: Article, "Getting Up to Speed: Embracing Internet Technology to Recruit," MSPB Issues of Merit (Apr. 2009).

     Suicide: Article, "By Their Own Hand: Suicide Among Law Enforcement Personnel," 2 (4) Community Policing Dispatch (Apr. 2009).

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