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Contracts, Consultants and Outsourcing

     An association representing city workers filed a lawsuit seeking an injunction against the city contracting to outsource a number of city services, including jail operations, special event safety, and building inspection. An intermediate appeals court upheld the trial court's grant of a preliminary injunction. The injunction was not premature, since the association members were in serious danger of being terminated. That and the many layoff notices already sent out showed that the association and its members would suffer greater harm if a preliminary injunction were not granted than the city would if the injunction was issued. The association had a possibility of prevailing, since a state statute barred it from contracting with a private entity for "nonspecial" services, and there was only existing statutory outsourcing authority for two targeted areas--jail operations and administration of payroll services. Costa Mesa City Employees' Ass'n v. City of Costa Mesa, #G045730, 209 Cal. App. 4th 298, 2012 Cal. App. Lexis 971 (Cal. App. 4th Dist.).

Disciplinary Discovery

     A terminated correctional officer, who was a non-probationary sheriff's department employee, challenged her firing in an administrative hearing. She was fired for supposedly falsifying time records, and argued that the penalty was disproportionate to her misconduct because other employees who had falsified time records had received lesser punishments. She submitted a motion to the hearing officer for discovery of the disciplinary records of other department personnel who had been investigated or disciplined for that offense, normally deemed confidential and not subject to disclosure except through discovery. The hearing officer ordered the records produced for his review. An intermediate California appeals court rejected the argument that discovery of such personnel records could not be ordered in an administrative hearing, finding that it could be ordered when relevant, which it was here. Any other interpretation of the law would conflict with the due process rights of officers in disciplinary proceedings. Riverside County Sheriff's Dep't v. Stiglitz, #E052729, 2012 Cal. App. Lexis 1025 (Cal.App. 4th Dist.).

Drug Abuse & Rehabilitation

     An employee of a private company was fired for testing positive for marijuana on a drug test. He sued for wrongful termination, and claimed that the fact that he was a legal registered user of medical marijuana under state law barred the employer from firing him for its use. The appeals court held that the state law provided no protection to the employee against termination for drug use. The statute did not purport to regulate private employment actions, and, if the legislature intended any such broad extension of employee rights against termination for the use of marijuana, illegal under federal law, and illegal under state law too, except for permitted medical purposes, it would have expressly enacted it. Casias v. Wal-Mart, #11-1227, 2012 U.S. App. Lexis 19634, 2012 Fed. App. 0343P (6th Cir.).

     Editor's note: For more on this topic, see Medical Marijuana and Public Safety Personnel, 2011 (11) AELE Mo. L. J. 201.

FLSA - Overtime - Canine Officers

     An officer who is the human component of a police K-9 team can pursue a claim for overtime for the hours he spends, outside of the regular workday, caring for, training, grooming, and transporting his canine partner. While he is currently given a lump sum of $2,000 a year as supposed compensation for this work, he argued that this does not adequately compensate him for the time spent, and that he should be receiving time and a half for all the hours spent in excess of 40 per week. If the hours the officer claimed were accurate, the court found, he was being compensated less than the minimum wage for the extra time he spent each day taking care of the dog. Additionally, if the employer city does not compensate the officer for extra expenses for the dog, such as food, water, transport, and veterinarian bills, then his actual hourly pay was even lower. The court ruled that a jury must decide, as a factual matter, whether the $2,000 lump sum payment, agreed to by the officer's union, was reasonable, bringing it within an exception to the overtime requirement, or whether the officer was entitled to overtime for approximately 40 minutes a day. Diorio v. Village of Tinley Park, #11-C-6724, 2012 U.S. Dist. Lexis 93765, 19 Wage & Hour Cas. 2d (BNA) 834 (N.D. Ill.).

Handicap/ Abilities Discrimination -- Accommodation in General

     The EEOC took the position that an employer airline's reasonable accommodation job transfer policy violated the Americans with Disabilities Act (ADA) because it did not require that disabled employees be appointed to vacant jobs for which they are qualified, provided that the accommodation would not pose an unreasonable hardship on the employer and would be ordinarily reasonable. The U.S. Court of the Appeals for the Seventh Circuit adopted this position, overturning EEOC v. Humiston-Keeling, #99-3281. 227 F.3d 1024 (7th Cir. 2000), its past precedent holding that the ADA did not require that disabled employees be offered other vacant jobs for which they are qualified. EEOC v. United Airlines, Inc., #11-1774, 2012 U.S. App. Lexis 18804 (7th Cir.).

Pensions

     A retired California state employee receiving a pension wanted to enter into a domestic partnership under state law with the woman he lived with, who had taken care of him during his illness. He designated his estate as his beneficiary, and then he and the woman went in front of a notary to sign a declaration of domestic partnership. Later that same afternoon, he died. She then took the certificate of domestic partnership and filed it with the state. Based on that, she applied for state pension survivor's benefits. Because the certificate was not filed with the state while the decedent was still alive, no valid domestic partnership was formed and she was not entitled to state pension survivor benefits. Burnham v. California Public Employees' Ret. Sys., #C067715, 208 Cal. App. 4th 1576, 2012 Cal. App. Lexis 942 (Cal. App. 3rd Dist.).

Political Activity/Patronage Employment

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

     An employee of a county detention facility was fired by a federal court-appointed administrator. The administrator was appointed pursuant to a settlement with inmates who sued over the conditions at the facility. He argued that the termination, justified on the basis of budget cuts, was actually motivated by his political affiliation, and was unlawful, in violation of his federal civil rights. The defendant argued that, because he was court appointed, he was entitled to absolute quasi-judicial immunity. A federal appeals court rejected this argument, ruling that terminating an employee is an administrative act which absolute immunity does not apply to. None of the administrator's duties were judicial in nature. "Nor would the administrators of a municipality that has filed for reorganization under Chapter 9 be immune from claims under sec. 1983 if they engaged in patronage hiring." Coleman v. Dunlap, #11-2669. 2012 U.S. App. Lexis 17696, 34 I.E.R. Cas. (BNA) 321 (7th Cir.).

Racial Harassment

     A woman employed as a Correction Lieutenant at a women's prison was among less than 3 percent of those in that job who were African-American. She served as a witness in a retaliation complaint filed by a female coworker. Subsequently, an ex-felon visitor to the prison got into a dispute with her about not letting her children into the prison because she had not followed required procedures. The visitor complained to another lieutenant referring twice to the plaintiff as a "nigger." Neither the other lieutenant nor any other person disputed the use of the term. She claimed that, for close to three years she was subjected her to a continuous stream of adverse employment action which turned her work into a hostile work environment due to her race, gender, or protected activity. The court rejected all these claims, finding that the plaintiff failed to show that a co-worker's failure to remonstrate against racist remarks by a prison visitor was inadequate to create an objectively racially hostile workplace. She also failed to show a sexually hostile workplace, or that she was subjected to unlawful retaliation. Cooper v. Cate, #1:10-cv-899, 2012 U.S. Dist. Lexis 66411 (E.D. Cal.).

Search and Seizure

     Three unions representing various ranks of a city police department challenged a departmental order requiring that any police officer involved in a shooting resulting in injury or death take a breathalyzer. They claimed that this constituted an unreasonable search in violation of the Fourth Amendment. The court rejected that argument, granting summary judgment to the city. The court found that the searches represented by the breathalyzer tests were justified under the special needs doctrine which has been used to justify drug and alcohol testing for railway employees involved in train accidents. The primary purpose of the searches was not crime control, but personnel management--to deter officers from becoming intoxicated and discharging their weapons. These special needs outweigh any privacy interest that officers might have in not submitting to the tests. Palladino v. City of New York, #07 CV 9246, 2012 U.S. Dist. Lexis 90291 (S.D.N.Y.)

     Editor's note: In Lynch v. City of New York, #08-5250-cv, 589 F.3d 94 (2d Cir. 2009), the appeals court previously upheld the trial court's action in declining to grant a preliminary injunction against the policy at issue.

Wrongful Discharge -- In General

     A former federal probation officer sued the U.S. government, claiming that he was improperly fired. The reason given for his termination was that he was negligent in the supervision of a convicted defendant who was killed while on release pending sentencing. The Court of Federal Claims' dismissal of the lawsuit for lack of jurisdiction was upheld by a federal appeals court on the basis that the Civil Service Reform Act of 1978 (CSRA) applied to classify the plaintiff as a member of the "excepted service," barring him from pursuing such a lawsuit. The law applies to all branches of the federal government, not just to employees of the Executive branch, as the plaintiff argued. It applied to him as an employee of the Judicial branch. Semper v. U.S., #12-5003, 2012 U.S. App. Lexis 18880 (Fed. Cir.).

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     Investigative Reports: "Special Reports. A Review of ATF's Operation Fast and Furious and Related Matters," Inspector General, U.S. Department of Justice (Sept. 19, 2012).

     Investigative Reports: "Investigations Press Releases. Court Security Contractor to Pay $1.8 Million to Resolve Allegations That Guards Did Not Undergo Authorized Firearm Qualification Testing," Inspector General, U.S. Department of Justice (Sept. 27, 2012).

Reference:

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AELE Seminars:

Public Safety Discipline and Internal Investigations
Dec. 10-12, 2012 - Las Vegas

Jail Liability – Administrative Issues
(Diet, mail, religion, classification, etc.)
Jan. 14-16, 2013 - Las Vegas

Jail Liability – Incident Liability
(In-custody deaths, use of force, extractions, etc.)
Mar. 4-6, 2013 - Las Vegas

Lethal and Less Lethal Force
Oct. 7-9, 2013 – Las Vegas

Management, Oversight and Monitoring of Use of Force
-- Including ECW Operations and Post-Incident Forensics
Apr. 2-4, 2013 – Orleans Hotel, Las Vegas

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