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Arbitration Procedures

     Arbitrator may rely on a prior award involving a similar issue. "In the absence of an express agreement or a requirement by statute, an arbitrator is not required to set forth any findings of fact and conclusions of law supporting an award. ... Thus, simply relying on the rationale of a previous arbitration decision is not fatal." Rhode Island Dept. of Corrections v. Bro. of Corr. Officers, #PM-08-4416s, 2010 R.I. Super. Lexis 128.

Collective Bargaining - Duty to Bargain

     Federal Labor Relations Authority affirms arbitration award that determined that the Border Patrol failed to bargain with the union over the implementation of changes to body armor requirements. D.H.S. Customs and Border Protection and AFGE Natl. Border Patrol Council, #0-AR-4494, 65 FLRA No. 23, 65 FLEA 88 (2010).

Criminal Liability

     Former California Highway Patrol officer, convicted of dismissing a speeding ticket in exchange for sex, is sentenced to two years in state prison. Peo. v. Abram Anthony Carabajal, #SCN259352, Super. Ct. San Diego Co. (2010).

Arbitration Procedures

     Reversing a lower court, a California appellate panel revives an arbitration award. The arbitrator had ordered the reinstatement of a city employee accused of sexual harassment because the collective bargaining agreement required disciplinary action to be implemented within six months from learning of the alleged misconduct, and the city did not act in time. City of Richmond v. SEIU, L-1021, #A127492, 2010 Cal.App. Lexis 1827 (2010).

Disability Rights and Benefits - Benefit Disputes

     Federal appeals panel denies an equal protection claim for compensation for injuries. Nevada Parole and Probation employees may be treated her differently than Nevada Highway Patrol employees. "Nevada offered a rational basis for its differentiation between the employees of the divisions." Simontacchi v. Dept. of Pub. Safety, #09-15858, 2010 U.S. App. Lexis 20653 (Unpub. 9th Cir.) affirming 2009 U.S. Dist. Lexis 24000 (D. Nev.).

Disciplinary Appeals & Challenges - Reviewing Standards

     California appellate court reinstates a Personnel Board decision to reduce the punishment of a deceitful public employee from termination to a two-month suspension. Reversing a Superior Court order that had re-imposed the termination, the appellate panel emphasized that courts must not overturn Personnel Board decisions unless they are "arbitrary, capricious, or beyond the bounds of reason." Siskiyou County v. State Pers. Bd., #C063811, 2010 Cal. App. Lexis 1744 (3rd Dist.).

Disciplinary Interviews & Compelled Reports - Garrity Warnings

     Illinois appellate court holds that when prosecutors have access to an officer's I-A statement, the defendant receives use immunity, not transactional immunity. Three-judge panel rejects the holding of U.S. v. North, #89-3118, 910 F.2d 843 (D.C. Cir. 1990) and adopts the holding in U.S. v. Koon, 34 F.3d 1416 (9th Cir. 1994). People v. Haleas, # 1-09-3353, 2010 Ill. App. Lexis 1088 (1st Dist.).

Disciplinary Punishment - In General

     Appellate panel sustains the firing of a police officer for attempting to intimidate and influence potential witnesses during an investigation and by attempting to mislead an investigator in the performance of his duties. Casal v. Bor. of Dunellen Police Dept., A-#3621-07T2, 2010 N.J. Super. Unpub. Lexis 1707 (App. Div.).

Disciplinary Searches

     A California firefighter who was suspected of sick leave abuse was ordered to go his home and to retrieve several rolls of recently purchased insulation, and to place them in his front yard for inspection. The firefighter complied but sued, alleging that the order violated his right to be free from unreasonable search and seizures under the 4th and 14th Amendments. The Ninth Circuit has ruled that although the procedure violated the plaintiff's 4th Amendment rights, it was not clear that this was known at the time, and the fire chief and his subordinates were entitled to qualified immunity. That immunity does not extend to a private attorney who was advising management on this matter. Delia v. City of Rialto, #09-55514, 2010 U.S. App. Lexis 18836 (9th Cir.).

Domestic Partner Rights

     Dept. of Interior agency and union agree to extend family and medical leave privileges to the domestic partners of Forest Service employees. 2010 bargaining agreement, Natl. Federation of Federal Employees and U.S. Forest Service.

Firearms/Weapons - Other Issues

     Declining to issue a former deputy sheriff a retirement badge and a firearm authorization card is not a stigmatizing event giving rise to an enforceable liberty interest. Palka v. Shelton, #08-4245, 2010 U.S. App. Lexis 20708 (7th Cir.).

First Amendment Related

     A lawsuit filed by a reserve officer challenging a General Order that altered the governance of the D.C. Police Reserve Corps implicates a "matter of political, social, or other concern to the community." LeFande v. Dist. of Columbia, #09-7080, 613 F.3d 1155, 2010 U.S. App. Lexis 15159 (D.C. Cir.).

Injuries to Employees

     Chapter 13 bankruptcy court refuses to discharge a personal injury claim brought by an off-duty police officer who alleged that the debtor intentionally assaulted her. Woods v. Roberts, #08-15099, 431 B.R. 914, 2010 Bankr. Lexis 257 (Bankr. S.D. Ind.).

     Illinois appellate court denies benefits to a firefighter who sustained a rotator cuff injury when he replaced a hose in a fire truck after returning from a response call. The Illinois Public Safety Employee Benefits Act (820 ILCS 320) limits recovery for firefighters to a "response to what is reasonably believed to be an emergency." Oskroba v. Vil. of Hoffman Estates, #1-09-2634, 2010 Ill. App. Lexis 942 (1st Dist.).

Probationary Employment

     A probationary officer who can be summarily fired lacks standing to raise due process claims in a §1983 action. White v. Hall, #09-15072, 2010 U.S. App. Lexis 15874 (Unpub. 11th Cir.).

Race Discrimination - In General

     An employee cannot prevail on a hostile environment claim without evidence that he was subjected to harassing comments or conduct because of his association with, or advocacy on behalf of, a protected minority. Moreover, "the law recognizes a cause of action for racial harassment only if the employee can demonstrate repeated, routine acts so severe or pervasive as to create an abusive environment for any reasonable person belonging to plaintiff's racial or ethnic group." Thompson v. City of Monrovia, #B216252, 2010 Cal. App. Lexis 1142, 186 Cal. App. 4th 860, 112 Cal. Rptr. 3d 377.

Religious Discrimination

     Appellate panels affirms the dismissal of a lawsuit by a parole officer that alleged a failure to accommodate his religion, but revives his complaint of a hostile work environment. Whether the conduct alleged was so severe or pervasive as to create an objectively hostile or abusive work environment must be decided based on the totality of the circumstances. The plaintiff presented evidence of six interactions with his supervisors over a three-year period that implicated his religion. Leifer v. N.Y. Div. of Parole, #07-0642-cv, 2010 U.S. App. Lexis 17646 (Unpub. 2nd Cir.).

Resignations and Constructive Discharge

     A decision to resign or retire, rather than risk an unfavorable civil service board decision, with loss of pension benefits, does not make a resignation involuntary. Palka v. Shelton, #08-4245, 2010 U.S. App. Lexis 20708 (7th Cir.).

A federal employee's voluntary resignation is not reviewable by the Merit Systems Personnel Board, but the Board has jurisdiction when a resignation is involuntary. "A resignation is involuntary if the agency made misleading statements on which the employee reasonably relied to her detriment ... [and] a threat of adverse action is coercive if the agency knows or should know that it cannot be substantiated." Costa v. M.S.P.B. (Dept. of Justice), #2010-3054, 2010 U.S. App. Lexis 21247 (Unpub. Fed. Cir.).

Retaliatory Personnel Action

     Eighth Circuit rejects a Title VII retaliation and First Amendment action brought by an Omaha police auditor who fired after she had published a report that was critical of Omaha police practices. She was not speaking as a citizen, and Title VII does not prohibit retaliation for criticizing discriminatory police tactics. Bonn v. City of Omaha, #09-3332, 2010 U.S. App. Lexis 21486 (8th Cir.).

     Third Circuit rejects a retaliation suit brought by a state trooper who claimed that as a result of his refusal to participate in a quota system, he was subjected to adverse employment conditions. Supervisory ride-a-longs, denial of transfer requests and overtime, remedial training, or poor performance evaluations are not constitutional deprivations. Aubrecht v. Pa. State Police, #09-2226, 2010 U.S. App. Lexis 16391 (Unpub. 3rd Cir.).

Suspensions and Administrative Leave

     A suspension with full pay does not trigger due process protections unless the suspension imposes a substantial indirect economic effect on the employee. Palka v. Shelton, #08-4245, 2010 U.S. App. Lexis 20708 (7th Cir.).

Training Rights, Requirements and Cost Reimbursement

     Police Dept. was not required to pay the salary of a police officer who was required to repeat basic training after a five-year absence, while serving as a state representative. Santiago v. Methuen Police Dept., #09-P-1228, 77 Mass. App. Ct. 1116, 2010 Mass. App. Unpub. Lexis 948.

     Louisiana appellate court upholds the termination of a firefighter who failed to complete EMT training during a required six-month period. Meiners v. St. Tammany Fire Prot. Dist. # 4, 2009 CW 0435R, 2010 La. App. Lexis 1223 (1st. Dist.).

Transfers

     Federal appellate panel affirms the termination of a HHS employee who refused a transfer to Atlanta from Hawaii. "Removal is not an unreasonably harsh penalty" for a refusal to accept a new assignment. Toyama v. Leavitt, #2010-3038, 2010 U.S. App. Lexis 17119 (Fed. Cir.).

Whistleblower Requirements and Protection

     A DEA Agent's communications were not protected disclosures because he reported conduct as part of normal duties through normal channels. Kahn v. DoJ, #2009-3125, 2010 U.S. App. Lexis 18679 (Fed. Cir.).

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Collective bargaining:
• Federal Collective Bargaining Legislation for State and Municipal Public Safety Personnel, IACP presentation (Oct. 2010).

Legal Summaries:
• Recent Labor and Employment Decisions of Note, IACP presentation (Oct. 2010).

Immigration law:
• Authority of state and local police to enforce federal immigration law, Congressional Research Service, #R41423 (Sep. 2010).

Internet:
• Social Networking in Law Enforcement

Reference:
• Abbreviations of laws, law reports and agencies used in our publications.
• AELE’s list of employment law resources

Report non-working links here


CROSS REFERENCES
Body Armor - see: Collective Bargaining
Collective Bargaining - see: Arbitration Procedures
Disciplinary Punishment - see: Transfers
First Amendment - see: Retaliatory Personnel Action

AELE Seminars:

Public Safety Discipline and Internal Investigations
Dec. 13-15, 2010 – Las Vegas

Jail and Prisoner Legal Issues
Operational and Administrative Issues
Jan. 10-12, 2011
Security and Incident Liability
Mar. 7-9, 2011

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