Employment & Labor Law for Public Safety Agencies

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Conflicts of Interest


     Office of Government Ethics concludes that all former federal employees are legally prohibited for a one-year period, from contacting employees of their former agency for the purpose of influencing official actions. OGE Legal Opinion re: 18 U.S. Code 207c (2010).
     President Obama adopts a strict ethics pledge regarding lobbyist activities (Jan. 2009).
     Arbitrator sustains disciplinary action against a fire captain who secretly had accepted employment as a paid sales representative of American La France while acting as the city's agent for the purchase of a $432,000 ALF fire engine, including inspecting and accepting the final product in violation of city policies and a Washington state conflicts law. The grievant's termination is reversed, because under the city's progressive discipline policy the appropriate penalty is a demotion from Captain to firefighter and a six month suspension without pay. City of Sumner and IAFF L-2877, Case #20755-A-06-1436, 123 LA (BNA) 1249 (Coss, 2007).
     California appellate court overturns the firing of an officer because the attorney who prosecuted the charges also had served as a legal advisor to the Personnel Board.". Qunitero v. City of Santa Ana, #G031275, 2003 Cal. App. Lexis 1912 (4th Dist. 2003).[2003 FP Feb]
     Office of Government Ethics publishes new and revised exceptions relating to the prohibition on federal employees having financial interests in matters in which they participate in an official capacity. Exemption Amendments Under 18 U.S. Code 208(b)(2), 67 (53) Fed. Reg. 12443-46 (Mar. 19, 2002). [2002 FP Jun]
     California Attorney General rules that a person may not serve simultaneously as the City Administrator and Fire Chief, unless a city charter provision or ordinance is adopted that abrogates the common law prohibition against holding incompatible offices. A.G. Opin. #99-801, 99 C.D.O.S. 8403 (1999). {N/R}
     Person holding the elected office of Alderman could not continue to work as an on-call police officer or as a parttime fire chief. The fact he abstained from voting on fire or police issues as a legislator did not remove the conflict. City of Sturgis v. Koch, 583 N.W.2d 170 (S.D. 1998). {N/R}
     California Attorney General approves request of two firefighters who sought authority to sell respiratory masks they designed to their employer. #96-1103, 97 Cal. Dly. Opin. Serv. 1854 (1997). [1997 FP 67]
     Illinois Attorney General rules that sheriff's deputies and jail personnel may purchase and eat meals prepared in the jail kitchen. Ops. Il. Atty. Gen. #I-96-055 (12/30/96). [1997 FP 67]

     Federal court in Illinois holds that city attorneys and corporation counsel may represent both the city and individuals who are or were city officials or employees and who are being sued in both their individual and official capacities, despite existence of possible conflicts between city and individuals, if there is no evidence of actual conflict at present time, and the individuals have signed waivers stating that they have been informed of potential conflicts. Frazier v. Harris, #03-3007, 2003 U.S. Dist. Lexis 9607, 91 FEP Cases (BNA) 1374 (C.D. Ill. 2003). {N/R}
     Second Circuit reverses the convictions of three ex-NYPD defendants in the Louima scandal. Joint representation by a union-provided attorney resulted in a conflict of interest between the defendants. U.S. v. Schwarz, #00-1479, 283 F.3d 76 (2nd Cir. 2002). [2002 FP Jun]
     In a 2-to-1 decision, the majority held that an attorney hired by a city to represent multiple defendants could not bring a cross claim against the city and codefendants. "Clients should not be put in a position where they must fret over whether the confidential information they disclosed to their previous attorney will later be used against them. Wasserman v. Black, 910 S.W.2d 564, 1995 Tex.App. Lexis 2290. {N/R}
     A union member was precluded from suing an union-provided attorney for malpractice. The union selected and compensated the attorney; there was no attorney-client relationship. "Although the attorney may well have certain ethical obligations to the grievant, his principal client is the union; it is the union that has retained him, is paying for his services, and is frequently the party to the arbitration proceedings." Peterson v. Kennedy, 771 F.2d 1244/at 1258 (9th Cir. 1994). {N/R}
     Where a county sheriff is sued both his official and individual capacities, the county attorney cannot represent him solely in his official capacity. Separate representation for the official in his two capacities is a "wise precaution." "Though separate representation is permissible, an attorney may not undertake only the official capacity representation at his or her sole convenience." Johnson v. Bd. of Cmsnrs. of Fremont, 85 F.3d 489, 1996 U.S. App. Lexis 13256 (10th Cir.) affirming 868 F.Supp. 1226 (D.Colo. 1994). {N/R}
     Separate representation of a public official or employee is required in the face of the potential conflict, Ricciuti v. N.Y. City Transit Auth., 796 F.Supp. 84 (S.D.N.Y. 1992). {N/R}
     Where the governmental entity concedes that an employee or official acted in furtherance of official policy, there is no conflict in representing multiple police officer defendants, who were sued for federal civil rights violations. The city did not have to agree to a union demand to employ separate counsel. Galligan v. City of Schenectady, 116 A.D.2d 798, 497 N.Y.S.2d 186, 1986 N.Y. App.Div. Lexis 51636. {N/R}
     Safety director who appointed his brother as police chief violated statute which prohibits involvement in a matter where a relative has a financial interest. Other captains could sue and need not complain to civil service board. Sciuto v. City of Lawrence, 452 N.E.2d 1148 (Mass. 1983).
     There is no constitutional, statutory, or ethical authority allowing a government attorney to represent government clients one day and to give them legal advice with regard to pending litigation, then withdraw, and sue the same clients the next day on a purported cause of action arising out of the identical controversy. People ex rel. The Calif. Attorney General was removed as counsel for the represented party. Deukmejian v. Brown 29 Cal.3d 150, 172 Cal.Rptr. 478, 624 P.2d 1206 (1981). The decision was followed in Civil Serv. Cmsn. v. Superior County, 163 Cal.App.3d 70, 1984 Cal.App. Lexis 2881, 209 Cal.Rptr. 159, involving the San Diego Co. Counsel.
     Exclusion of Fire chief: Mass. Labor Rel. Cmsn. v. Town of Natick, 339 N.E.2d 900 (Mass. 1976).
     Indiana Supreme Court criticizes system where city attorney prosecuted the case, then took part in the decision; employee reinstated. City of Mishawa v. Stewart, 310 N.E.2d 65 (Ind. 1974). {N/R}

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