Employment & Labor Law for Public Safety Agencies

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Disciplinary Procedures - In General

       Based on their conduct during the execution of a search warrant at a marijuana dispensary, two police officers became the subjects of an internal affairs investigation that was initiated after video recordings of the raid were released to the media. The recordings were made by the dispensary owners using hidden cameras they had secretly installed. The Santa Ana, California Police Department initiated the investigation after video recordings of the officers were released to the media. The Santa Ana Police Officers Association and the officers sued the city, its police department, and its police chief.  They claimed that the police department violated the California Invasion of Privacy Act by using the video recordings made at the marijuana dispensary as the basis for, and as evidence in, the internal affairs investigation. They also asserted that the defendants violated Government Code section 3303(g), part of the Public Safety Officers Bill of Rights Act, by refusing to produce tape recordings of the initial interrogations of the officers, transcribed stenographer notes, and any reports or complaints made by the investigators or other persons, before interrogating the officers a second time. An intermediate California appeals court rejected the claim for violation of the California Invasion of Privacy Act because the officers had no reasonable expectation as a matter of law that their communications during the raid of the marijuana dispensary were not being overheard, watched, or recorded. The plaintiffs did, however, state a valid cause of action for violation of the Public Safety Officers Bill of Rights Act because, under section 3303(g), the defendants were required to produce the tape recordings of the initial interrogations, transcribed stenographer notes, and reports and complaints made by the investigators or other persons, before the officers could be interrogated a second time. Santa Ana Police Off. Assn. v. City of Santa Ana, #GO53126, 2017 Cal. App. Unpub. Lexis 4087.

     A non-probationary police officer in San Francisco had an interaction with a citizen which resulted in a complaint being filed against him with the department’s Office of Citizen Complaints (OCC). After an investigation by the OCC, and based on its findings and recommendations, as well as an internal affairs investigation, the police chief filed a disciplinary complaint against the officer before the Police Commission. The officer and his lawyer participated in the Commission hearing, after which he was terminated. An intermediate California appeals court ruled that the city’s procedure for disciplining officers violated a state Police Officer’s Bill of Rights law which provides that “[n]o punitive action . . . shall be undertaken by any public agency against any public safety officer . . . without providing the public safety officer with an opportunity for administrative appeal.” The city admittedly did not provide the officer with any kind of administrative appeal from the Police Commission’s decision. Morgado v. City and County of San Francisco, #A141681, 2017 Cal. App. Lexis 585.

     Under Texas state law, certain procedural requirements must be met before a covered peace officer can be disciplined based on a complaint of misconduct. When a deputy sheriff was terminated, he appealed to the sheriff, complaining of procedural irregularities in the process leading to his discharge. The sheriff summarily upheld the termination. The employee then sued the sheriff and the county, alleging that the sheriff’s department violated Government Code sections 614.022 and 614.023 by terminating his employment without giving him a copy of a signed complaint and without allowing him an opportunity to respond to the allegations before he was disciplined. The trial court granted partial summary judgment for the employer. The court of appeals reversed, concluding that employer violated Chapter 614. The Supreme Court reversed, holding that, assuming that Chapter 614, Subchapter B applied under these circumstances, the employer complied with the statute. A signed disciplinary notice provided to the deputy contemporaneously with his suspension, was sufficient to meet Tex. Gov't Code Ann. ch. 614B's notice requirements and allowed him ample opportunity to defend himself to the final decision maker. Tex. Gov't Code Ann. ch. 614B did not alter the employment at-will relationship, but prescribes procedures that apply when the employer elects to terminate employment based on a complaint of misconduct. The statutory phrase "the person making the complaint" was not limited to the "victim" of the alleged misconduct, such as a civilian citizen complainant, and the county attorney and a police lieutenant were "persons" who could make and sign the written "complaint" against the deputy sheriff for purposes of Tex. Gov't Code Ann. ch. 614B. Colorado County, Texas v. Staff, #15-0912, 2017 Tex. Lexis 124, 60 Tex. Sup. Ct. J. 397.
     A female tenth grader took a pie to firefighters. One male firefighter gave her a tour of the station and took a picture of her next to a fire engine. He got her email address to send her the picture and subsequently engaged in a risqué exchange of emails. After the girl's father complained, the firefighter was assigned to a training center where he allegedly touched a female co-worker in an unwelcome manner and made "inappropriate" remarks about their private lives. After an investigation, he was fired. In reviewing the disciplinary action, the trial court did not err in finding that the email exchange, if with a willing unmarried adult, would not violate any existing policy, and it was not alleged in any charge that the firefighter knew the girl was a minor, but the question could be further reconsidered on remand. The trial court, which set aside the termination, did err in failing to consider interview transcripts regarding the firefighter's behavior towards the female co-worker. Seibert v. City of San Jose, #H040268, 2016 Cal. App. Lexis 435.
     The federal government has adopted procedures to punish credit card abuse. Memo M-13-21, "Implementation of the Government Charge Card Abuse Prevention Act" (Sep. 2013).
     A union representing police officers sued challenging a town law establishing police officer disciplinary procedures different from those specified in a collective bargaining agreement. The highest court in New York ruled that the municipality had the authority under a state statute to adopt such rules and regulations as it chose for "the examination, hearing, investigation and determination of charges, made or preferred against any member or members of such police department." While the collective bargaining agreement provided officers subject to discipline with the right to a hearing before a neutral arbitrator, the town's law did not provide for arbitration, but instead provided for a member of the Town Board or their designee to conduct a hearing, with the Town Board rendering a final decision, subject to judicial review. The power to adopt police disciplinary rules belonged to the Town Board and was a prohibited subject of collective bargaining. In the Matter of Town of Wallkill v. Civil Service Employees Association, Inc., #180, 2012 N.Y. Lexis 3090.
     A police officer was fired after an internal affairs investigation concluded that he violated two provisions of the code of conduct. A city civil service board found that the city acted in good faith with cause but modified the discipline imposed to a suspension, believing that termination was too harsh a penalty. The Louisiana Supreme Court held that the civil service board had the power to modify the disciplinary penalty without a finding that the city acted in bad faith or without cause. City of Bossier City v. Vernon Court, #2012-C-0078, 2012 La. Lexis 2724.
     A former fire department Battalion Chief sought a ruling that a city's personnel board had to hear his appeal of his termination even though a city ordinance classified all department heads and their assistants as exempt employees. He argued that he was denied the right of judicial review because the board never entered an order, adjudication or decision from which he could appeal. An intermediate Ohio appeals court upheld a decision for the plaintiff employee and rejected the board's position that a letter that the city attorney sent the ex-employee telling him that he had no right to appeal his termination to the board was sufficient. The board would be ordered to hear his appeal. State ex rel. Holloway v. Personnel Appeals Bd., #24635, 2012 Ohio 628, 2012 Ohio App. Lexis 545.
     Although an employer has agreed to expunge a disciplinary matter from an official personnel file, it may retain documents in a separate litigation file. An agency "is entitled to maintain a separate litigation file containing documents that were expunged from [an] official personnel file so that ... the agency can respond to subsequent claims regarding its compliance with the settlement agreement." Perrine v. Dept. of Veterans Affairs, #2010-3103, 2010 U.S. App. Lexis 20603 (Unpub. Fed. Cir.).
     A sheriff's merit service commission improperly dismissed charges against an employee before receiving evidence of her alleged misconduct. Walsh v. Champaign County, #4-10-0194, 2010 Ill. App. Lexis 1188 (4th Dist.).
     Second Circuit upholds a NYPD policy that requires that a Breathalyzer test be administered to every officer who, whether on or off duty, causes injury or death as a result of firing his or her firearm. The Breathalyzer program is a "deterrent to officers who may consider carrying their firearms while under the influence of alcohol," and is not an "unexpected intrusion on privacy." Lynch v. City of New York, #08-5250-cv, 589 F.3d 94 (2d Cir. 2009).
    New York appellate panel finds, 5-to-0, that there is no duty to meticulously review a long record made by a hearing officer in order to sustain the charges against a state trooper. Matter of McKinney v. Bennett, #99617, 817 N.Y.S.2d 767, 31 A.D.3d 860 (3rd Dept. 2006).
     Arbitrator finds that management’s failure to interview witnesses before imposing a written reprimand was not a violation of due process. The contract allowed the county to dispense with formal procedures in the case of minor disciplinary action. Lane County and AFGE L-2831, 126 LA (BNA) 1473 (Calhoun, 2009).
     Management violated the bargaining agreement by failing to provide all employees with a current versions of the “Policies, Procedures and Work Rules Manual.” None of the bargaining unit members received a copy. The issue was not whether the grievant was inappropriate in his conduct, but whether he was properly charged under a set of work rules that were unpublished at the time of the suspension. Grievance allowed. City of Mount Vernon and FOP Ohio Labor Council, FMCS Case No. 09/01714, 126 LA (BNA) 1159 (Feldman, 2009).
     Illinois appellate panel finds that the First Amendment's freedom of religion clause protects persons who testify against a priest in an internal disciplinary proceeding, and a defamation suit filed by the accused party must fail. Stepak v. Doe, #1-08-2140 (Catholic Bishop of Chicago), 2009 Ill. App. Lexis 513 (1st Dist.), citing Serbian E. Orth. Diocese v. Milivojevich, 426 U.S. 696 (1976).
     Although Illinois law requires that a disciplinary complaint against a peace officer "must have the complaint supported by a sworn affidavit," the law is complied with when a superior officer signs on information and belief. Firsthand knowledge is not required. Sherwood v. City of Aurora, No. 2-08-0300, 2009 Ill. App. Lexis 83 (2nd Dist.).
     Arbitrator finds that the grievant, a corrections officer, brought a mobile phone into the facility, allowed an inmate to use it, and then was deceptive and untruthful about her actions. However, she was not provided with notice that management had rejected a hearing officer's recommendation of a 45-day suspension, and terminated her. Because of a lack of due process, the 45-day suspension recommendation was determinative, and her termination is annulled. Virgin Islands Bur. of Corrections and UIW-SIU, Case #RA-010-08, 125 LA (BNA) 626 (Henner, 2008).
     Arbitrator orders the reinstatement of a police officer that was removed for violating a conduct regulation. Management failed to comply with state law and provide him with a signed complaint. A "Garrity Warning" form is not a signed complaint. City of Lubbock, Texas, and Individual Grievant, 125 LA (BNA) 554, AAA Case #71-390-00053-08 (Moore, 2008).
     In a civil rights action, the Eleventh Circuit holds that a Florida sheriff is not a final policymaker simply because a civil service board had only overturned one termination in 15 years. Maschmeier v. Scott, #07-13439, 2008 U.S. App. Lexis 6043 (Unpub. 11th Cir.).
     State court declines to order reinstatement of two officers that had been convicted of conspiracy to obstruct a federal grand jury after the convictions were overturned on appeal. The petitioners gave inconsistent accounts of the events surrounding the mistreatment of a prisoner. Matter of Bruder v. Kelly, #114504/06, 2007 N.Y. Misc. Lexis 5881 (N.Y. Co. Sup.).
     Arbitrator sets aside a ten-day prehearing suspension of a firefighter accused of a residency violation. Management failed to "make a proper investigation prior to suspending the Grievant, including interviewing the Grievant as to the suspension." The suspension was "a violation of the just cause principles." City of Massillon, Ohio and IAFF L-251, 123 LA (BNA) 1374, FMCS Case #071214/00686-8 (Fullmer, 2007).
     Arbitrator annuls a suspension because an I-A sergeant delivered the notice. Texas law requires the department head to personally notify an employee of his or her suspension. City of Fort Worth and Individual Grievant "C", #CSC-005-2005HP, 122 LA (BNA) 211 (Moore, 2005).{N/R}
     Supreme Court declines to review a holding that struck down a California law making it a misdemeanor to knowingly file a false complaint against a peace officer. Agencies in the Ninth Circuit have been advised by counsel to remove any language from internal complaint forms that warn a citizen that he or she can be prosecuted for making a false complaint. Chaker v. Crogan, #03-56885, 428 F.3d 1215, 2005 U.S. App. Lexis 23728 (9th Cir. 2005). [2006 FP Jul]
     LAPD settles a suit brought by the union; management agrees not to permanently reassign officers charged with misconduct, until a Board of Rights hearing is held. Temporary duty restrictions and reassignments still permitted, but now officers will be able to take an administrative appeal. $350,000 to be paid to 80 officers. Roe v. Parks, #00-cv-10811 (C.D. Cal. 2004). [2004 FP Aug]
     Washington Governor signs domestic violence legislation aimed at armed law enforcement officers. It requires applicant screening, immediate reporting, separate criminal and administrative investigations, the recovery of agency weapons, and other measures. S-6161, an amendment to Rev. Code of Wash. §10.99.020, H-1645 and S-6384 (signed 3/15/04). [2004 FP May]
     A part-time police officer, who worked full time for another police dept. that had filed charges against him for misconduct, was not suspended, demoted, constructively discharged, or otherwise deprived of his property interest in his part-time employment when the police chief removed him from the duty list and subsequently declined to issue him new credentials, based on the charges that later led to his termination from his full time position. Dixon v. New Richmond, #02-3727, 334 F.3d 691, 2003 U.S. App. Lexis 13430, 20 IER Cases (BNA) 212, (7th Cir. 2003). {N/R}
     Arbitrator reinstates an officer because management failed to provide him with a Bill of Particulars prior to a predisciplinary conference, as required by the bargaining agreement. Stark County Sheriff and FOP, 118 LA (BNA) 407, FMCS Case # 031001/00019-6 (Feldman, 2003). [2003 FP Aug]
     Arbitrator declines to enforce a clause requiring the parties to submit a list of witnesses seven days before the hearing. Fed. Bur. of Prisons and AFGE L-4051, FMCS Case #02/06738, 117 LA (BNA) 1723 (Oberdank, 2002). [2003 FP May]
     Federal appeals court upholds a trial court order barring a party from introducing evidence because of a failure to comply with discovery demands. Ware v. Rodale Press, #02-1533, 2003 U.S. App. Lexis 3722 (3rd Cir. 2003). {N/R}
      The Dept. of Defense did not violate its own procedural regulations when it revoked the security clearance of an employee for the failure to disclose his marijuana use on a security questionnaire. Duane v. U.S. Dept. of Defense, #00-1309, 275 F.3d 988 (10th Cir. 2002). [N/R]
    Federal appeals court revives a sergeant's damage suit against the police chief and others, for due process violations. He claimed he was selected to get all the blame for a highly publicized brutality complaint. Moran v. Clarke, #00-1015, 247 F.3d 799, 2001 U.S. App. Lexis 6439 (8th Cir.). [2001 FP 68]
     A letter mailed with a copy of the city council's decision suspending a police officer without pay did not contain a formal "certificate of service," and thus was a defective notice. Strict compliance with the statutory procedure is required. Donnellan v. City of Novato, 86 Cal.App 4th 1097, 2001 Cal. App. Lexis 80, 103 Cal.Rptr.2d 882 (Cal.App. 2001). {N/R}
     A member of a bargaining unit cannot waive rights conferred on him in the agreement without approval by the union. "Due process must be afforded the grievant and that includes the protection against waiving contractual clauses without union aid and assistance." Scioto County Sheriff and FOP, 115 LA (BNA) 532 (Feldman, 2001). {N/R}
     County did not have just cause to discipline a deputy sheriff who acted like bully and should have been punished, because management asked him to waive the protection in the bargaining agreement providing for a pre-disciplinary hearing and he complied without the consent of the union. Scioto County Sheriff and FOP Ohio Labor Council, 115 LA (BNA) 532 (M. Feldman). {N/R}
     An Indiana city, in terminating a police officer, did not violate an implied covenant of good faith and fair dealing. Turner v. City of Evansville, #82S05-0008-CV-479, 740 N.E.2d 860, 2001 Ind. Lexis 11. {N/R}
     Summoning police assistance: there is no liability for false imprisonment where an employer has called the police at the time an employee is terminated; civil liability for false imprisonment rests on the persons and agency that actually made the detention or arrest. Barrera v. Con Agra, #00-1493, 244 F.3d 663, 2001 U.S. App. Lexis 4933 (8th Cir.). {N/R}
     A statutory advisory warning to those persons who file complaints against police officers applies only to complaints of misconduct in performance of duties. San Diego Police Ofcrs. Assn v. San Diego, 76 Cal.App.4th 19, 1999 Cal. App. Lexis 968, 90 Cal.Rptr.2d 6 (Cal.App. 1999). {N/R}
     New Jersey State Police enter into a court-approved consent decree that imposes disciplinary requirements on management. U.S. v. N.J. State Police, # 99-5970 (D.N.J. 12/29/1999). [2000 FP 38-9]
     A California law enforcement agency may destroy peace officer internal investigation files after a five-year retention period and peace officer personnel records five years after the officer has terminated employment when the destruction is solely a matter of administrative routine and no other factors are present that would establish "bad faith." Cal. Atty. Gen. Opin. #99-1111, 00 C.D.O.S. 3563 (5-2-2000). {N/R}
     Collateral estoppel claims raised in discharge arbitration. Union rep claimed that a prior determination that a fired worker was entitled to unemployment benefits was binding on the arbitrator that there was no "just cause" for termination. Prior cases are: Fawn Engineering Corp. and Automobile Workers L-270, 63 LA (BNA) 1307 (Fitch, 1974); Sears, Roebuck & Co., 69-1 ARB 8158 (Block); Stillwater (City of) and I.A.F.F. L-2095, 103 LA (BNA) 684 (Neas, 1994); Kennecott Copper Corp., 32 LA (BNA) 646; Bofors-Lakeway, Inc., 72 LA (BNA) 159 (Kelman); Aircraft Workers Alliance and Indiv. Grievant, 99 LA (BNA) 585, 596-7 (Sharpe, 1992); Kunzelman v. Thompson, 799 F.2d 1172, 1176 (7th Cir. 1986); and Kaiser Cement and Gypsum Corp., 70-2 ARB 4748. [1999 FP 117-19]
     Federal Labor Relations Authority upholds a warden who put the president of the corrections union on "home-duty" status and temporarily prohibited him from visiting the prison for union purposes. The union official allegedly made statements that could "incite inmates and staff members to fight one another." An "employer retains the right to respond to an alleged offense by an employee which may adversely affect the employer's confidence in the employee or the security or orderly operation of the institution." An "employer may elect to reassign the employee to another job within the institution or remove the employee from the institution pending investigation and resolution of the matter, in accordance with applicable laws, rules and regulations." U.S. Penitentiary, Leavenworth, Kan. and AFGE L-919, #DE-CA-60349, 55 FLRA No. 127 p. 704, 1999 FLRA Lexis 198 (1999). {N/R}
     NY holds that arbitration replace a statutory disciplinary procedure, instead of allowing employees the choice, is a mandatory subject of bargaining. City of Utica, 31 NY PERB ¶3045 (1998).
     Appeals court rejects a state agency's refusal to honor subpoenas for its employees to attend a disciplinary hearing as defense witnesses, because the officer accused of misconduct balked at paying the witness fees. Fox v. St. Personnel Bd. 57 Cal.Rptr.2d 279 (App. 1996). [1997 FP 100]
     Federal Merit Systems Board holds that verbal disciplinary settlement agreements are valid and, when safeguards are met, are enforceable. Shean v. U.S. Postal Service, 1996 MSPB Lexis 925. [1997 FP 21-2]
     Federal appeals court finds it was improper for an employer to offer reinstatement to a terminated employee on condition he waive his rights to contest future disciplinary action. Retlaw v. N.L.R.B., 53 F.3d 1002 (9th Cir. 1995). [1995 FP 100]
     Dept. could not re-discipline officer who resigned over drug charge, and was later reappointed a probationary officer. An employee may not be twice disciplined for the same offense. Branza v. Martin, 570 N.E.2d 411 (Ill.App. 1991). [1992 FP 37-8]
     Firefighter's plea of "no contest" to drug charges was equivalent to a plea of guilty. City of Corinth v. Cox, 565 So.2d 1142 (Miss. 1990).
     Maine Supreme Court upholds an arbitrator's decision that a lieutenant could reinstate a sergeant who was fired by the chief for sexual misconduct and lying. Bur. of Maine State Police v. Pratt, 568 A.2d 501 (Me. 1989).
     Firefighter/EMT entitled to avoid civil service and attack his termination via arbitration, even though his separation was non-disciplinary (failure to meet minimum qualifications). Jones v. Des Moines Civil Serv. Cmsn., 430 N.W.2d 106 (Iowa 1988).
     Confrontation between chief and employee, after which disciplinary action was taken, was not a "hearing" requiring due process, assistance of counsel, or other rights. Meeks v. Shettle, 514 N.E.2d 1272 (Ind.App. 1987).
     Disciplined employee could not sue fellow employees for defamation in a federal court lawsuit; absolute immunity attached. Cross v. Ficus, 830 F.2d 755 (7th Cir. 1987).
     No duty to reinstate officer after criminal charges are dropped where conduct also violated dept. manual. Danielson v. City of Seattle, 724 P.2d 1115 (Wash. App. 1986).
     Officer who's conviction was reversed not entitled to reinstatement or hearing on reinstatement application. Briggins v. McGuire, 492 N.Y.S.2d 746 (A.D. 1985).
     Chief must read transcript of disciplinary review board before he adopts their recommendations for termination. Gamble v. Hoffman, 695 S.W.2d 503 (Mo.App. 1985).
     Home rule city could not avoid state statute and terminate or demote firefighters in derogation of state law. Langan v. City of Scranton, 465 A.2d 729 (Pa.Cmwlth. 1983).
     Fire chief's suit against citizens for bringing public complaint against him must fail, unless signers knew the allegations to be false. Semi- absolute privilege attaches to complaint. Pickering v. Frink, 461 A.2d 117 (N.H. 1983).
     Order of chief to firefighter to shave beard was not binding because facial hair regulation was not adopted by board. Ittig v. Huntington Manor Fire Dept., 463 N.Y.S.2d 870 (A.D. 1983).
     Specificity required in drafting charges against employees; vague references insufficient. City of Laredo v. Guerro, 646 S.W.2d 581 (Tex.App. 1983).
     New York holds that state civil service laws apply over local home-rule legislation. Dillon v. City Manager of Yonkers, 449 N.Y.S.2d 530 (A.D. 1982).
     Due process requires certain specificity in charges; omission of essential information mandates reversal. Burns v. Police Bd. of Chicago, 432 N.E.2d 1300 (Ill.App. 1982).
     Chief not bound by plea-bargain arrangements negotiated and accepted by his hearing examiner. Silverman v. McGuire, 414 N.E.2d 838, 51 N.Y.2d 228 (1980).
     Applicant need not exhaust administrative appeals before pursuing federal civil rights suit. Patsy v. Florida Bd. of Regents, 102 S.Ct. 2257 (1982).
     Deputy sheriff recovers wages withheld during suspension because he was not given a disciplinary hearing; public policy cited. Zook v. Hendrick, 367 N.E.2d 1356 (Ill.App. 1977).
     Employee not entitled to back pay if conviction is reversed. Toro v. Malcolm, 404 N.Y.S.2d 558 (1978).
     Retired officer who signed a "settlement agreement" to avoid dismissal may still bring a civil rights suit. Matter not finally decided in state court appeal or barred by settlement "release;" hearing officials not entitled to full immunity. suggestions for resignation or retirement agreement offered. Williams v. Codd, 459 F.Supp. 804 (S.D.N.Y. 1978).
     Grievance procedure of a collectively bargained agreement doe snot prevent civil service board from hearing disciplinary charges. Weisenritter v. Bd. of Fire & Police Cmsnrs. of Burbank, 385 N.E.2d 336 (Ill. app. 1979).
     Three days sufficient time to arrange for legal defense. Yunker v. Porter Co. Sheriff's Merit Board, 382 N.E.2d 977 (Ind.App. 1978).
     Bill of particulars; copy of personnel file sufficient. Fitzgerald v. Libous, 393 N.Y.S.2d 122 (A.D. 1977).
     See also: Grievance Procedures; Hairstyle Regulations; Personnel Manuals.

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