July 2017 Fire, Police & Corrections Personnel Reporter

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Arbitration Procedures

When a security officer at a nuclear power plant was terminated because he could not satisfy a job requirement that he wear a full-face gas mask under 10 C.F.R. § 20.1703(h), the arbitrator did not exceed his authority by ordering the officer be reinstated as he could have been reassigned to a position that did not require a gas mask. The employee has chronic folliculitis, and the employer thought this would keep him from shaving often enough to properly wear a full-face gas mask in the event of a chemical attack. If the employer assigned the security officer in a post that did not legally require a respirator, then the respirator/facial hair conflict disappeared. The arbitrator did not alter or contradict the bargaining agreement by relying on the employer’s actual practice in staffing the posts. The arbitrator also did not in any way require the employer to violate federal regulations. Entergy Operations v. United Government Security Officers, #16-1219, 856 F.3d 561 (8th Cir. 2017).

An arbitrator's award in an employee's dispute ordering an employee fired for misconduct reinstated rested entirely on the Amtrak Inspector General's noncompliance with Rule 50 of the Amtrak-police union collective bargaining agreement, which imposed procedural limitations on the conduct of internal investigations. Under the Inspector General Act of 1978, however, proposals concerning Inspector General-investigation procedures were not an appropriate subject of bargaining. A federal court, reviewing an arbitration award, could refuse to enforce contracts that violated law or public policy. Rule 50, as applied to the Amtrak Inspector General, was such a contractual provision and the trial court was right in refusing to enforce the arbitrator's award based on that provision. National Railroad Passenger Corp. v. Fraternal Order of Police, #16-7004, 855 F.3d 335 (D.C. Cir. 2017).

Disciplinary Offenses/Punishment – Sexual Misconduct

A sheriff’s department terminated two deputies for violating the Sheriff’s Code of Conduct when they moved in with each other’s wife and family before getting divorced from their current wives and disobeyed a directive from the sheriff to cease living with a woman not his spouse. The trial court upheld these discharges, finding them supported by the rational grounds of preserving a cohesive law enforcement agency and upholding the public trust and reputation of the department. The Code, as written or unenforced, was not unconstitutionally vague. A federal appeals court upheld this result, finding no reversible error. It also rejected the argument that recent U.S. Supreme Court decisions upholding same-sex marriages had created “rights” based on relationships that “mock marriage.” Coker, v. Whittington, #16-30679, 2017 U.S. App. Lexis 8989 (5th Cir.).

First Amendment Related

The director of a police department’s crime lab was terminated from his job after the district attorney contacted the police chief to express “concern” because he had written an expert report for and planned to testify for the defense in a pending criminal case. The lab director’s contract permitted him to perform consulting work that did not relate to the city's prosecutions or investigations, and he had agreed to testify on behalf of a criminal defendant in another state. He sued the district attorney, arguing that this had violated his First Amendment rights. A federal appeals court held that a prosecutor was not entitled to absolute prosecutorial immunity in these circumstances because these actions were not taken in his role as an advocate within the judicial system. He was, however, entitled to qualified immunity because he was acting within the outer perimeter of his discretionary skills in expressing concerns about the plaintiff's outside work, and further, the law was not clearly established at the time that this somehow violated the terminated employee’s First Amendment rights. Mikko v. Howard, #15-15135, 2017 U.S. App. Lexis 9270 (11th Cir.).

A long-time employee of a town’s wastewater-treatment plant reported alleged violations of state and federal requirements as well as voicing concerns that a manager’s nephew was improperly hired without advertising the job. His reports went up the chain of command. He was terminated, allegedly because the plant manager felt that he couldn’t work with him any longer. The trial court rejected his claim of First Amendment retaliation on summary judgment, reasoning that his speech did not involve matters of public concern. A federal appeals court reversed in part, stating that “constitutional protection for speech on matters of public concern is not premised on the communication of that speech to the public.” Nor must courts limit reports of wrongdoing to illegal acts; a public concern includes “any matter of political, social, or other concern to the community.” Reporting regulatory violations “up the chain” to supervisory governmental employees can constitute speech on a matter of public concern, for purposes of First Amendment retaliation claim. Mayhew v. Town of Smyrna, #16-5103, 856 F.3d 456, (6th Cir. 2017).

Political Discrimination

A bailiff in a county courthouse had his employment hours reduced to part-time by the newly elected presiding judge, allegedly because she had supported a defeated candidate in the election. She sued, alleging unlawful retaliation based on her political activity. A federal appeals court upheld the denial of qualified immunity to the defendant presiding judge. His statement that he wanted "somebody who supported him" provided direct evidence of a retaliatory motive for a change in plaintiff's job. The right to not be subjected to such retaliatory action was clearly established. Williams v. Tucker, #15-3676, 2017 U.S. App. Lexis 8984 (8th Cir.).

Retirement Rights and Benefits

The plaintiff had been employed as a city police officer since 1995. In 2013, a Memorandum of Finding was sustained against him on allegations that he failed to properly investigate and report an incident of sexual abuse against a girl the year before. The police chief recommended that he be terminated. Before a hearing could be held on his proposed termination, he was granted disability retirement for a back injury sustained while on duty.

He then requested his retirement identification badge and that the badge include a Carry Concealed Weapon (CCW) endorsement. This request was denied because the city and police chief did not consider him to be “honorably retired” as that term was defined in Penal Code section 16690. They also argued that he not entitled to a hearing to dispute the finding. He sued, contending he was honorably retired and entitled to a CCW endorsement, and if the endorsement was denied for cause, he was entitled to a good cause hearing. An intermediate California appeals court upheld the trial court’s ruling that the defendants could deny the CCW endorsement for cause but that the defendant was entitled to a good cause hearing if it was denied. Bonome v. City of Riverside, #E064925, 10 Cal. App. 5th 14, 215 Cal. Rptr. 3d 654, 2017 Cal. App. Lexis 264

Union and Associational Activities

In Illinois, a state statute gives unions representing public employees the right to collect dues from its members, but only “fair share” fees (a proportionate share of the costs of collective bargaining and contract administration) from non-member employees on whose behalf the union also negotiates. A lawsuit sought to preclude such fair share fees, arguing that the statute violated the First Amendment by compelling employees who disapprove of the union to contribute money. A federal appeals court upheld the dismissal of the lawsuit, noting that one of the plaintiffs has previously challenged the “fair share” provision in state court and that his claim is barred by claim preclusion.

The appeals court also noted the U.S. Supreme Court’s decision, Abood v. Detroit Board of Education, #75-1153, 431 U.S. 209 (1977) upholding, against a First Amendment challenge, a Michigan law that allowed a public employer, whose employees (public-school teachers) were represented by a union, to require those of its employees who did not join the union nevertheless to pay fees to it because they benefited from the union’s collective bargaining agreement with the employer. Janus v. American Federation of State, County, and Municipal Employees, #16-3638, 851 F.3d 746 (7th Cir. 2017).

Workers’ Compensation

Two Massachusetts state statutes grant additional compensation to correctional employees who sustain bodily injury as a result of inmate violence during the course of his duties. “Bodily injury” is defined as that which results in physical injury. A correction officer sued the sheriff, the sheriff’s department, and the state to obtain compensation under the statutes. His symptoms were an accelerated heart rate accompanied by light-headedness and difficulty breathing. The state’s highest court affirmed the judgment of the trial court, holding that while the plaintiff may well have sustained an injury, he failed to show that he had a bodily injury within the meaning of the statutes entitling him to additional compensation. Modica v. Sheriff of Suffolk County, #SJC-12201, 477 Mass. 102, 2017 Mass. Lexis 346

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RESOURCES

Law Enforcement Employment: Hiring for the 21st Century Law Enforcement Officer, Challenges, Opportunities, and Strategies for Success, Police Executive Research Forum (PERF) and Office of Community Oriented Policing Services (COPS) (2017).

Reference:

Abbreviations of laws, law reports and agencies used in our publications.
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CROSS REFERENCES

Firearms – Other Issues – See also, Retirement Rights and Benefits

First Amendment Related – See also, Political Discrimination

Injuries to Employees – See also, Workers’ Compensation (1st case)

Retaliatory Personnel Actions – See also, First Amendment Related (both cases)

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