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Employment & Labor Law for Public Safety Agencies


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Disciplinary Offenses - Conduct Unbecoming

     Arkansas Supreme Court sustains the termination of a firefighter for fleeing a police officer while off-duty. Lawrence v. City of Texarkana, Ark., #10-146, 2011 Ark. 42, 2011 Ark. Lexis 43.
     Administrative Law Judge upholds the termination of a NYC firefighter for disorderly and disruptive conduct, refusing to perform a task assigned by a supervisor, directing profanities to superiors, and engaging them in a physical altercation. Fire Dept. N.Y. v. Krasner, #2967/09 (N.Y.C. Admin. Trials 2009).
     Arbitrator orders reinstatement, but without back pay, for a private sector employee who asked her supervisor “Were you born a prick?” Safeway and United Food Workers L-5, 126 LA (BNA) 1249 (Staudohar, 2009).
     Arbitrator sustains the termination of a fire lieutenant who had a "relationship" with the estranged wife of a subordinate. Although the employer did not have a fraternization policy, the subordinate asserted that he could not work with" the grievant if he was reinstated. "The record also evidences that, given the size of the Department, were the grievant to be returned to duty it would be inevitable that at some point they would be called upon to work together in a supervisor-subordinate relationship. ... It may well be anomalous that lawful private conduct may be subject to sanction on the basis of co-worker reaction, but such is the state of the law ..." City of Quincy and Firefighters L-63 IAFF, 126 LA (BNA) 534, FMCS Case No. 08/0421-02331-A (Finkin, 2008).
     In an appeal where an FBI agent was fired for videotaping sexual encounters with women without their consent, a federal appeals court remanded the case to the Merit Systems Protection Board for further adjudication. One judge wrote that he would have reversed the Board outright on the ground that the agency failed to establish a nexus between the charged conduct and the efficiency of the service. The majority held that the Board failed to articulate a meaningful standard as to when private dishonesty rises to the level of misconduct that adversely affects the "efficiency of the service." The articulation of a meaningful standard is necessary particularly in light of the apparent conflict between the FBI’s policy on investigating personal relationships and its policies requiring their agents to act with integrity and honesty. Doe v. DoJ, #2008-3139, 2009 U.S. App. Lexis 10031 (Fed. Cir.).
     Arbitrator finds that management lacked just cause to terminate an off-duty police officer for frequenting a bar that is a known hangout for gangs, where other officers also visited the premises without suffering disciplinary action. City of El Paso and Individual Grievant, AAA Case #70-390-00665-04, 124 LA (BNA) 1583 (Jennings, 2008).
     Eighth Circuit upholds the termination of a police officer that rented space in his privately owned building for placing a pinhole camera in the bathroom wall. Poolman v. City of Grafton, #06-3220, 487 F.3d 1098, 2007 U.S. App. Lexis12933, 26 IER Cases (BNA) 363 (8th Cir.).
     Arbitrator sustains a 15-day suspension of a police officer for bringing discredit to his department during an off-duty incident in other city; he also paid a fine and agreed to pretrial diversion for resisting arrest after a public intoxication charge was dropped. City of Houston and Individual Grievant, 123 LA (BNA) 1821 (Moore, 2007).
     The undefined term "misconduct" in a city ordinance is not void for vagueness under the federal or Nebraska Constitutions, where it has a generally accepted meaning. "In the employment context, misconduct is generally defined to include behavior which evidences (1) wanton and willful disregard of the employer's interests, (2) deliberate violation of rules, (3) disregard of standards of behavior which the employer can rightfully expect from the employee, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or of the employee's duties and obligations." Maxon v. City of Grand Island, #S-05-1204, 273 Neb. 647, 731 N.W.2d 882, 2007 Neb. Lexis 74, 26 IER Cases 510.
     Arbitrator concludes that management wrongfully discharged an off-duty firefighter that assaulted his girlfriend; his behavior did not harm the reputation of his office or render him unable to perform his duties. Broward Co. Sheriffs Office and IAFF L-4321, 121 LA (BNA) 1185, FMCS #05/01966 (Wolfson, 2005). [2006 FP Mar]
     Appellate court reinstates the termination of an off-duty detention officer that assaulted his wife. Opp v. City of Huntington Beach, #G025947, 2003 Cal. App. Unpub. Lexis 920 (4th Dist. 2003). [2003 FP Jul]
     Employer must have an anti-fraternization policy to punish an off-duty relationship. Without a privacy policy, the employer also could not discipline the grievant for reading a superior's e-mails, or for opening sexually explicit e-mails from a coworker where the sending party was not disciplined. Monterey County and Individual Grievant, CSMCS No. ARB-01-0050, 117 LA (BNA) 897 (Levy, 2002). [2003 FP Feb]
     South Dakota high court upholds the termination off an off-duty officer who verbally abused gays and created a disturbance. Green v. City of Sioux Falls, #20982, 2000 SD 33, 607 N.W.2d 43, 2000 S.D. Lexis 30. [2000 FP 148-9]
     Writing two hot checks and failing to make them good justified the termination of a state police officer. Ark. St. Police Cmsn. v. Smith, #98-1096, 338 Ark. 354, 994 S.W.2d 456, 1999 Ark. Lexis 381, 16 IER Cases(BNA) 317. [1999 FP 147-8]
     Appellate court upholds the dismissal of a NYPD officer for horseplay with his firearm, wounding a fellow officer. Villarini v. Safir, 669 N.Y.S.2d 21 (A.D. 1998). [1999 FP 7]
     Supreme court declines to hear appeal of police officer who was denied a promotion because of a sexual affair with the spouse of a fellow police officer. Henry v. City of Sherman, Tex., 117 S.Ct. 1098 (1997). Texas supreme court had ruled the officer was not entitled to judicial relief. See 928 S.W.2d 464 (Tex. 1996). {N/R}
     Appeals court upholds disciplinary suspension off an off-duty police captain who used profanity and got in a fight with teenagers. Eilers v. Civ. Serv. Cmsn., 544 N.W.2d 463 (Iowa App. 1995). [1996 FP 165]
     Appeals ct. upholds discipline of p/officer for showing disrespect to a superior. DeVito v. Culross, 633 N.Y.S.2d 76 (A.D. 1995). [1996 FP 70-1]
     Federal appeals court affirms termination of postal employee who took nude photos of a prostitute in a federal postal facility, then sold them to an adult magazine. Uske v. U.S. Postal Service, 56 F.3d 1375 (Fed.Cir. 1995). [1996 FP 54]
     Appeals ct. upholds constitutionality of a statute prohibiting ticket-fixing. Bustamante v. De Baca, 895 P.2d 261 (N.M.App. 1995). [1996 FP 21]
     Arbitrator sets aside suspension given a trooper who became overindebted and filed bankruptcy. Ohio Hwy. Patrol and F.O.P., 105 LA (BNA) 110 (Feldman, 1995). [1996 FP 3]
     Colorado supreme court sustains termination of a city employee who was convicted of incest. Unnecessary to show a nexus to his job. Colo. Springs v. Givans, 987 P.2d 753, 10 IER Cases (BNA) 1168 (Colo. 1995). [1995 FP 164]
     Federal appeals panel upholds termination of a union president for misuse of union funds. Beck v. Dept. of Justice, 67 M.S.P.R. 219, 1995 MSPB Lexis 648. [1995 FP 165]
     Pennsylvania supreme court limits the scope of courts that review arbitration awards, based on a state statute. Interpretation makes it difficult for fire and police chiefs to bring unbecoming conduct charges. Trooper who exposed his penis to other officers as part of a fraternal banter was not guilty of "unbecoming conduct." Pa. St. Police v. Pa. St. Troopers (Betancourt), 656 A.2d 83, 540 Pa. 66, 1995 Pa. Lexis 199, 149 LRRM (BNA) 2877 (Pa.1995). [1995 FP 115-6]
     Federal Court upholds 30 day suspension of police officer for conduct unbecoming. Off-duty officer made rude remarks to bank employees. Conduct unbecoming charge was not unconstitutionally vague. Harper v. Crockett, 868 F.Supp. 1557 (E.D.Ark. 1994). {N/R}
     Federal court upholds the discipline of a police officer for an act of adultery; all constitutional challenges rejected. Oliverson v. West Valley City, 875 F.Supp. 1465 (D.Utah 1995). [1995 FP 166]
     Federal appeals court concludes that DoJ employee did not intentionally supply false information on her "Sensitive Positions" questionnaire. Jacobs v. Dept. of Justice, 35 F.3d 1543 (Fed.Cir. 1994). {N/R}
     Hearing officers affirm decision to terminate prison psychiatrist following four suicides in a 11 month period. Silversmith v. Dept. Corr., #WB-94-008, 33 (1605) G.E.R.R. (BNA) 342 (Fla.PERB 1995). {N/R}
     Officer can be disciplined for wearing a firearm in the booking area, even if it was unloaded. Later fact relates to mitigation of the penalty, and does not excuse violation of a department rule against bringing weapons into the prisoner processing area. Dicaprio v. Trzaskos, 610 N.Y.S.2d 395 (A.D. 1994). {N/R}
     Mixed motives: Just cause existed to discharge an employee who falsified his employment application, even though the misconduct was discovered after he was investigated for distributing socialist literature. Cone Mills v. AC&TWU, 103 LA (BNA) 745 (Byars 1994). {N/R}
     State high court upholds disciplinary action against an off duty firefighter who was caught shoplifting. Fact store failed to prosecute him is irrelevant. City of Las Vegas v. IAFF L-1285, 824 P.2d 285, 108 Nev. 64, 1992 Nev. Lexis 20. {N/R}
     New Mexico appellate court holds that a city must show a police officer's off duty domestic dispute with wife affected his employment before disciplinary action is appropriate. Wording of the conduct unbecoming rule required department to prove the conduct actually impaired departmental efficiency or caused disrepute. Walck v. City of Albuquerque, 828 P.2d 966 (N.M. App. 1992). [1993 FP 20-1]
     Louisiana appellate court upholds termination of off-duty officer for alcohol-related domestic violence. Dronet v. Dept. of Police, 613 So.2d 735 (La.App. 1993). [1993 FP 150]
     N.Y. appellate court sustains the termination of a police officer who consorted with prostitutes, even though there was no payment of monies for sexual services. Ruiz v. Brown, 579 N.Y.S.2d 47 (1992). {N/R}
     Alabama appellate court sustains termination of officer for off-duty "kinky sex," sexually deviant acts with prostitutes, child abuse and gun play. Freeman v. City of Mobile, 590 So.2d 331 (Ala.Civ.App. 1991). [1993 FP 5-6]
     Appellate court overturns termination of asst. chief of police for conduct unbecoming by associating with a known addict. Asst. chief claimed he was cultivating an informant and the dept. lacked guidelines or directives for this purpose. Flosi v. Bd. of Fire & Police Cmsnrs. of Rock Falls, 582 N.E.2d 185 (Ill.App. 1991). [1992 FP 20-21]
     "Conduct unbecoming" must be an actual rule before an employee can be disciplined; "insubordination" is something more than expressing strong disagreement with a superior's decision. Fuqua v. City Council of Ozark, 567 So.2d 354 (Ala. Civ. App. 1990).
     Deputy could be disciplined for asking a fellow officer to drop DUI charges against a motorist as "a personal favor" to him. It was unnecessary to have a specific rule prohibiting such requests, since the department had a policy of not reducing or dropping DUI charges without approval of the prosecutor. Magnum v. Lambert, 394 S.E.2d 879 (W.Va. 1990).
     Failure to render first aid to a man who resisted, warranted termination of arresting officers. State ex rel. Kalt v. Board of Fire & Police Cmsnrs., 527 N.W.2d 408 (Wis. App. 1988).
     Federal appeals court rejects suit by former police couple who were suspended after surveillance for cohabitation. Shago v. Spradlin, 701 F.2d 470 (5th Cir. 1983), cert. den. sub nom Whisenhut v. Spradlin, 104 S.Ct. 404 (1983).
     Federal court sustains the termination of a police officer for an act of adultery in a public park while off-duty. There could be no tolerance for activities which could jeopardize the department's effectiveness, even though the conduct was not illegal. Faust v. Police Civ. Serv. Cmsn., 563 F.Supp. 585 (W.D. Mich. 1983). {N/R}
     Military appeals court upholds conduct unbecoming charge against lieutenant who had sexual relations with a trainee. United States v. Adames, 21 M.J. 465 (C.M.A. 1986).
     Lower court decision finding conduct unbecoming as vague is reversed; constitutionally upheld. City of St. Petersburg v. Pinellas Co. Police Benev. Assn., 414 So.2d 293 (Fla. App. 1982).
     Appellate court sustains the termination of an off-duty police officer found in "drag" -- wearing the attire of the other gender. Etscheid v. Police Bd. of Chicago, #49,074 (1st Dist.), 47 Ill.App.2d 124, 197 N.E.2d 484, 1964 Ill. App. Lexis 650 (1964). {N/R}


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