Employment & Labor Law for Public Safety Agencies

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Disciplinary Appeals & Challenges - Reviewing Standards

     In reviewing disciplinary actions on appeal, even where there is conflicting testimony, credibility determinations are final. Unless clearly contrary to the evidence, credibility determinations are within the discretion of a civil service board or other authority and may not be disturbed by a reviewing court. Scanlan v. Dept. of Police, #2010-CA-0584, 44 So.3d 921, 2010 La. App. Unpub. Lexis 456.
     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.).
     Three-judge panel overturns a lower court's order to reinstate a law enforcement officer who was terminated for submitting allegedly false duty records. In disciplinary appeals, a reviewing court should not make independent findings of fact. Haas v. North Carolina, #COA09-1367, 2010 N.C. App. Lexis 1667 (Unpub.).
    Supreme Court rules that a five-member labor board cannot act with a panel of only two members. New Process Steel v. NLRB, #08-1457, 2010 U.S. Lexis 4973, 188 LRRM (BNA) 2833.
     In Ohio civil service appeals, a trial court possesses "extensive power to weigh the preponderance of substantial, reliable and probative evidence." An appellate court may review the judgment of the trial judge, but only on questions of law. It is the duty of the trial court, and not the appellate court, to examine the evidence. Lane v. City of East Cleveland, #93530, 2010 Ohio 2352, 2010 Ohio App. Lexis 1923 (8th Dist.).
     Discipline imposed on California police officers affects their fundamental vested right in employment, and when an officer challenges an employer’s disciplinary action in a mandamus proceeding, the trial court is required to exercise its independent judgment on the evidence. The “substantial evidence” standard does not apply. Wences v. City of Los Angeles, #B208525, 177 Cal. App.4th 305, 2009 Cal. App. Lexis 1477 (2nd Dist.).
     Federal appeals court sustains the termination of a Secret Service agent who passed four counterfeit $20 bills. “Employment actions based on denial of security clearance are not subject to judicial review.” Oryszak v. Sullivan, #08-5403, 2009 U.S. App. Lexis 18175 (D.C. Cir.).
     Although a personnel board, civil service commission, or hearing officer has discretion to reduce the discipline imposed on a public employee, the exercise of that discretion has to be reasonable. It was reversible error to reduce a demotion to a 30-day suspension where a sergeant berated a subordinate who had filed a harassment complaint against him and then was untruthful about his conduct. County of Santa Cruz v. Civil Service Cmsn. of Santa Cruz (Jack), #H032222, 2009 Cal. App. Unpub. Lexis 1090 (Unpub. 6th Dist.).
     Seventh Circuit sustains a process where disciplinary action is reviewed by a state court, without the ability to accept further evidence or to engage in independent fact-finding. In such cases, the court can remand for additional fact-finding or the taking additional evidence. Michalowicz v. Vil. of Bedford Park, #06-3857, 2008 U.S. App. Lexis 12413 (7th Cir.).
     Appellate panel reverses a trial court order that overruled an Ohio State Personnel Board of Review decision that reduced the penalty of a deputy sheriff from termination to a suspension and reinstatement. The trial court exceeded its authority by substituting its judgment for that of the Board. Franklin County Sheriff v. Frazier, #07AP-363, 2007-Ohio-7001, 2007 Ohio App. Lexis 6147 (10th Dist. 2007).
     Utah appellate court reverses a civil service board ruling that overturned the termination of a fire captain. The board improperly ignored a sexual harassment allegation because the subordinate voluntarily participated in the banter. Consent can affect the degree of punishment, but does not excuse a violation of agency policy. Ogden City v. Harmon, #20031030-CA, 2005 UT App 274, 116 P.3d 973, 2005Utah App. Lexis 297 (2005). [2006 FP Apr]
           Wisconsin Supreme Court interprets statutes providing judicial review and collective bargaining to allow a terminated public employee to appeal to the courts, or force binding arbitration -- but not both. Eau Claire Co. v. Teamsters L-662, #98-3197, 2000 WI 57, 235 Wis.2d 385, 611 N.W.2d 744. {N/R}
     Nevada supreme court reinstates corrections official who was terminated for improper use of inmate labor. Courts should not substitute a different penalty if supported by substantial evidence. Knapp v. Dept. of Prisons, 111 Nev. 420, 892 P.2d 575, 1995 Nev. Lexis 31. [1995 FP 163-4]
     Court could not reverse personnel board decision without statutory review authority. O'Connor v. Oakland Co. Sheriff's Dept., 426 N.W.2d 816 (Mich. App. 1989).
     A police lieutenant, who was fired and reinstated as a sergeant by the Civil Service Cmsn, could bring a damage action for "severe anxiety, worry, mental, physical and emotional distress" for his improper firing by the County. The issue of wrongful termination need not be relitigated, because of the doctrine of collateral estoppel. Neither could he seek court-imposed reinstatement at the rank of lieutenant, for the same reason. Knickerbocker v. City of Stockton, 199 Cal.App.3d 235 at 245 (1988). {N/R}
     Right to court review in some states is limited to a constitutional violation. McFadden v. Gideon, 639 S.W.2d 43 (Tex App. 1982).

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