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Fire and Police Personnel Reporter

An Employment Law Publication
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February, 2000 web edition

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Applicant Rejections
Collective Bargaining - Duty to Bargain
Contracts, Consultants and Outsourcing
Criminal Liability
Death Benefits
Disciplinary Appeals
Disciplinary Punishment - Disparate Treatment
Domestic Partners Rights
English Only Rules
Handicap / Abilities Discrimination - Damages
Pregnancy Policies and Discrimination
Psychological Exams and Standards
Residency Requirements
Retirement Rights and Benefits
Sick Leave & Abuse
Telephone Monitoring, Audio & Video Taping
Transfers - Disciplinary or Punitive
Union and Associational Activity
Workers' Compensation - Claim Validity

Applicant Rejections

Federal court declines to annul a Chicago Police policy of not hiring applicants with an arrest record.  Plaintiff failed to prove the city has racial disparities in its police hiring.

     We previously reported that a woman who initially was rejected, but later was hired as a police officer, had filed a civil rights lawsuit; see our article at 1999 FP 3.  She claimed she was not accepted under a city policy of refusing to hire applicants that have been arrested and that the policy has a disparate impact on African-Americans.

     The City of Chicago claims that its initial decision was based on a policy of disqualifying all persons who have engaged in illegal disorderly conduct (whether or not they were convicted) or who have made untrue statements or withheld pertinent information in their application.  The city maintains that she lied about having been arrested and had engaged in unlawful disorderly conduct.

     In dismissing a disparate impact claim, the judge said that the plaintiff failed to offer any statistical evidence of racial disparities in hiring by the Chicago police department, "as opposed to evidence that African Americans are arrested at higher rates than whites in the general population."

     The court did allow the plaintiff to pursue a disparate treatment claim that she initially was not hired 1991 because of a 10-year-old arrest for possession of a knife; she later was hired and now can pursue a back pay claim.  Watkins v. Chicago, 1999 U.S. Dist. Lexis 17180 (N.D. Ill.) -- prior ruling reported at 992 F.Supp. 971, 1998 U.S. Dist. Lexis 963.

 » Editor's Note: A disparate impact claim "does not require a showing that the defendants intended to discriminate against the plaintiff."  A disparate treatment claim requires such proof.  The burden shifts to the employer to show the rejection was for a nondiscriminatory reason.

Collective Bargaining - Duty to Bargain

Minnesota appellate court holds that the adoption of a response- time residency requirement is a managerial right, and is therefore not subject to mandatory bargaining.

     The union challenged a trial court ruling that a 38-mile area response time requirement for a sheriff's dept. was an "inherent managerial right" and not negotiable.  The Minnesota legislature allows a city or county to impose an area or response time residency requirement if there is a demonstrated, job- related necessity.  Minn.Stat. §415.16, subd. 2 (1998).

Text: www.leg.state.mn.us/leg/statutes.htm

     A residency policy may be prohibited in the bargaining agreement.  Whether an area response time requirement is a "managerial policy" or a bargainable "term or condition of employment" was a question of first impression in Minnesota.

     A three-judge appellate court affirmed.  If a union is allowed to negotiate a residency policy, it would hamper the employer's policy of ensuring a "reasonable area or response time residency requirement."   Law Enf. Labor Serv. v. Co. of Cook, #C0-99-397, 1999 Minn. App. Lexis 1045 (Unpub.).

 » Research Note: Residency requirements were not subject to mandatory bargaining laws in New Jersey.  Newark v. P.B.A. L-3, 272 N.J.Super. 31, 639 A.2d 333 (App. 1994).

     An Ohio appellate court required a city to bargain with firefighters over residency requirements. City of St. Bernard v. State Empl. Rel. Bd., 74 Ohio App.3d 3, 598 N.E.2d 15 (1991).  In Pennsylvania, residency rules were not a management prerogative and could be the subject of mandatory bargaining and mandatory binding arbitration. Twp. of Moon v. Police Officers, 498 A.2d 1305 (Pa. 1985).  The Massachusetts Labor Relations Cmsn. required a city to bargain with the union over residency. City of Boston and Boston Super. Ofcrs. Fed., Mass. Lab.Rel.Cm. #MUP- 4071, G.E.R.R. (BNA) 953:18 (1981).

*    *    *    *    *    *

Non home rule communities in Illinois cannot be forced to bargain over arbitration to replace civil service, for disciplinary actions.

     In Illinois, a home rule city or county is required to bargain over whether arbitration should replace a civil service board, in disciplinary matters.  Decatur, City of v. AFSCME L-268, 122 Ill.2d 353, 522 N.E.2d 1219 (1988).

     Here, the dispute involved a sheriff's dept. in a  General Law county.  The sheriff refused to bargain because the county could not overrule a state law requiring a civil service board for discipline and promotions.  A three-judge appeals panel has agreed.  Adams Co. Sheriff v. IAMAW L-822, #4-98-0482, 719 N.E.2d 300, 1999 Ill. App. Lexis 769, 162 LRRM (BNA) 2802.

Full text: www.state.il.us/court/1999/4980482.htm

Contracts, Consultants and Outsourcing

Terminating an in-house security service and outsourcing the functions violated federal labor laws.

     Although this case arose in the private sector, the unanimous holding could influence similar rulings by state public employment relations boards.  The employer fired 64 security officers and contracted with a guard service at less money.  The union rep-resenting the terminated officers filed a complaint.

     An administrative law judge ruled for the union, and ordered the employer to reinstate the officers.  That holding was affirmed by a three-person panel of the National Labor Relations Board.  Reno Hilton and United Plant Guard Workers, #32-CA-15856, 1998 NLRB Lexis 822, 326 NLRB No. 154; affirming 1998 NLRB Lexis 404.

Text: www.nlrb.gov/

 » Research Note: We previously [1997 FP 35] reported that an arbitrator annulled the mass termination of university campus officers and the outsourcing of their function.  Temple Univ. and I.U.U.P.G.W.A., L-511, AAA 14-390-00997-96-R/K, 34 (1694) G.E.R.R. (BNA) 1733 (1996).

Criminal Liability

Federal appeals court convicts St. Louis police officers, moonlighting as security personnel, for falsifying their time cards.  Time cards, although hearsay, are admissible as business records.

     A federally-funded housing complex employed off-duty police officers as security personnel.  In a federal criminal trial, two officers testified how they, and two other officers, clocked each other in and out and submitted false time cards.  They men actually worked only 40 percent of the time indicated on their time cards.

     A federal appeals court rejected an evidentiary defense that time card and payroll evidence was inadmissible as hearsay upon hearsay.  The three-judge panel said the fact that a business document may contain entries in different forms or from different sources does not create a hearsay problem.  U.S. v. Turner, 189 F.3d 712, 1999 U.S. App. Lexis 18747 (8th Cir.).

Full text: www.wulaw.wustl.edu/8th.cir

*    *    *    *    *    *

Jury properly convicted a NYPD officer of torturing a prisoner with a toilet plunger.

     A Federal District Court ruled the officer was lawfully convicted of violating a prisoner's civil rights by assaulting him in police station bathroom.  A co-defendant (Volpe) pled guilty to the offense and stated that the accused was the accomplice.  A claim that the conviction was against the weight of the evidence was rejected.  U.S. v. Schwartz, 62 F.Supp.2d 887, 1999 U.S. Dist. Lexis 12110 (E.D.N.Y.).

*    *    *    *    *    *

Public employee's use of county's fax machine and a secretaries' typing, valued at less than $100, to carry out his personal business, supported a criminal conviction for theft of services.

     A county employee engaged in authorized secondary employment with a firm that provided waste management services to the county.  He used county resources for tasks he was required to perform as a private contractor for the service firm.  The total value of the unauthorized county resources amounted to less than $100.  State v. Pearson, 985 P.2d 919, 1999 Utah App. Lexis 101.

Death Benefits

Illinois appellate court ignores a beneficiary designation, and allows the first wife to collect, as required in marital dissolution decree.

     After a 33-year marriage ended, a municipal employee was required to name his ex-wife as the sole beneficiary of a death benefit.  He remarried in 1997 and named his second wife as the beneficiary.

     A three judge panel upheld the first wife's claim, because the deceased "was obligated to name [her] as beneficiary of the [fund's] death benefit."  Smithberg v. IL Mun. Retir. Fund, # 3-98- 0983, 306 Ill.App.3d 1139, 716 N.E.2d 316, 1999 Ill. App. Lexis 578.

Full text: www.state.il.us/court/appellates/1999/3980983.htm

Disciplinary Appeals

Former sergeant could not sue for wrongful separation without exhausting his statutory appeals or grievance procedures. Jury verdict set aside.

     A police sergeant who was accused of sexual harassment, failed to seek a termination hearing before the civil service cmsn. or to pursue grievance remedies under the bargaining agreement.  He sued the city, alleging that he was unable to pursue his administrative remedies because of the "city's refusal to complete its investigation."

     The state court jury awarded him back and future wages and damages for emotional distress.  A three-judge appellate court reversed. A civil service appeal or the pursuit of a grievance is required by the bargaining agreement.

     Where the city and its civil service commission provides a procedure whereby an aggrieved employee may have his complaint heard, a "failure on the part of the employee to avail himself of the procedure so provided will bar review of the matter by the courts."  Bickford v. City of Seattle, # 42912-4-I, 983 P.2d 1124, 1999 Wash. App. Lexis 1626, 162 LRRM (BNA) 2339.

Full text: www.wa.gov/courts/

Disciplinary Punishment - Disparate Treatment

Appeals court rejects claims of a woman who was expelled from the FBI academy for having a romantic involvement with an instructor, even though the male instructor received only a 20-day suspension.

     A woman agent-trainee, who also had an unsworn position with the FBI, was expelled from the academy for withholding information on her relationship with an instructor. The trainee had spent four nights at an instructor's home.

     She was later questioned by agents for four hours, who asked about her entire sex life, despite her protests that she had been sexually abused as a child -- which made it difficult for her to answer such questions.

     She repeatedly denied having any sexual relations with the instructor, which apparently was not believed.  She sued for gender discrimination and retaliatory action for filing an EEO complaint.  She claimed the Bureau tolerated similar misconduct from three male agents.

     One had been the “class clown;” the appeals court said that immaturity is not comparable to lack of forthrightness and disobedience.  Another drove a car after drinking, and only was cautioned; the panel said that is lesser misconduct than dishonesty.

     The instructor was disciplined for lying and engaging in an improper relationship with a subordinate.  The panel noted that the instructor had 15 years of service and the plaintiff was a probationary trainee.  He had been suspended for 20 days, and she for only five.  He kept his job as a special agent and she kept her FBI job as a civilian analyst.  Holbrook v. Reno, #98-5462, 196 F.3d 255, 1999 U.S. App. LEXIS 30623, 82 FEP Cases (BNA) 213 (D.C. Cir.).

Full text: www.ll.georgetown.edu:80/Fed-Ct/cadc.html

Domestic Partners Rights

Vermont Supreme Court extends the "benefits" of marriage to homosexual couples under the state constitution's Common Benefits Clause.  A federal Equal Protection argument failed.

     Vermont's Constitution, Ch. I, Art 7. provides that "government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community."

     Three same-gender couples sought and were denied marriage licenses.  The majority of justices held that the State is "constitutionally required to extend to same-sex couples the common benefits and protections that  flow from marriage under Vermont law."

     The majority said it would be a legislative decision as to whether persons of the same gender could marry or participate in "a parallel domestic partnership system" provided the result provides the same benefits and protections of the marriage laws.

     The justices emphasized that it is the Common Benefits Clause of the Vermont Constitution , rather than its counterpart, the Equal Protection Clause of the 14th Amendment to the U.S. Constitution, that compels their decision.  The decision is unlikely to be adopted in other states because the Vermont Common Benefits Clause differs from the federal Equal Protection Clause in language, origin, and purposes.  Baker v. Vermont, #98-032, 1999 Vt. Lexis 406.

Full text: www.state.vt.us/courts/98-032.txt

English Only Rules

Chicago area employer settles EEOC lawsuit challenging its  "English-only" workplace rule; four workers will split $55,000.

     The EEOC has filed an increasing number of lawsuits to enforce a Guideline that severely restricts English-only rules, 29 C.F.R. §1606.7. In late 1997, EEOC challenges rose from 8 per quarter to 14 per quarter.  The agency claims that English-only rules which apply at all times are presumed to violate Title VII.  English-only rules that are applied only at certain times are valid only when the employer demonstrates a "business necessity."

     Earlier in 1999, a federal judge refused to dismiss a suit against a suburban Chicago employer, accepting the EEOC's position that an “English-only rule creates an inference that [a] foreign national is disadvantaged in his or her employment because of his or her national origin.”

     Oddly, this employer of 200 workers, has a large number of foreign nationals, especially of Polish or Hispanic origin. Title VII was supposed to prevent employers from not hiring or promoting foreign born workers -- which is not the situation in this litigation.

     Under a consent decree filed 11-12-99, the employer admitted to no wrongdoing, but agreed to pay a total of $55,000 to four employees whose primary language is either Polish or Spanish. The English-only rule was dropped when the lawsuit was filed.  The settlement was “a business decision” to “avoid expensive legal fees.”  EEOC v. SSPI, 29 F.Supp.2d 911, 1999 U.S. Dist. Lexis 471, 78 FEP Cases (BNA) 1486 (N.D. Ill.).

*    *    *    *    *    *

 » Research Note: We previously reported [1994 FP 88-9] that a federal appeals panel ruled, 2-to-1, that bilingual employees can be required to speak only English in the workplace, but worried that the rule might have a disparate impact on employees with no or little knowledge of English. The U.S. Supreme Court denied review, with two justices dissenting. Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir. 1993); cert. den., 114 S.Ct. 2726 (1994).

     The EEOC Regulation says that English-only rules may "create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment."  29 C.F.R. §1606.7.

Handicap Laws / Abilities Discrimination - Damages

Jury awards former police officer $1 million + for disability discrimination.

     A state court jury in Washington has awarded a former police officer $1,086,200 for past and future pain, back pay and loss of future income. He suffers from urticaria, a medical condition in which exposure to cold causes hives and swelling.  He alleged the chief mistreated him because of the condition and retaliated after he took sick leave, subjecting him to unwarranted discipline and harassment, which worsened his condition.

     The ex-officer's attorney has filed a motion for attorneys’ fees.  Britton v. Mill Creek, #96-2-02085-9, 37 (1837) G.E.R.R. (BNA) 1484, Super. Ct. Snohomish Co. Wash. (10/26/99).


Federal appeals court rejects federal liability of public employee unions for illegal picketing damages.

     Three union locals, consisting of municipal employees, organized a picketed privately owned facilities, in order to pressure the city.  That action was later enjoined, but the businesses claimed losses over $1 million due to an illegal four- day work stoppage.  The businesses sued under 29 U.S. Code §158(b)(4), the Labor Management Relations Act of 1947, for engaging in a secondary boycott.

     The U.S. District Court dismissed the action because the Act appears to exclude employees of governmental entities.  A three- judge appeals panel has affirmed, distinguishing a 1997 case that came to a different conclusion.  The decision to include or exclude a union of public employees for unlawful picketing is one for the Congress.  Pacific Mar. Assn. v. L-63, ILWU, #98-55453, 1999 U.S. App. Lexis 32077 (9th Cir. 1999).

Text: www.ce9.uscourts.gov/opinions

Pregnancy Policies and Discrimination

Pregnant officer who was forced to take maternity leave could sue for discriminatory treatment.

     A federal court has refused to dismiss a suit by an officer who was not allowed to work during gestation, even though her condition might have posed a danger to the fetus and the public.  The officer had requested restricted duty because she feared that her regular duties would expose her to physical danger and loss of the fetus.

     When she was denied light duty, she filed an EEO complaint.  Management claims it lawfully reacted to a fear of liability to her and third parties, in light of the Supreme Court's decision in UAW v. Johnson Controls, 499 U.S. 187 (1991).  In Johnson Controls, the employer had a policy forbidding women from working in positions that exposed them to lead concentrations which could be harmful to a fetus.

     The Supreme Court held that a policy which discriminates against fertile women, but not fertile men, violates Title VII and the Pregnancy Discrimination Act. The justices said that if pregnant employees differ from others in their ability to work, they can be treated differently.  Otherwise they must be treated the same as other employees for all employment-related purposes; 499 U.S. 187 at 204; 111 S.Ct. 1196 at 1206.

     In this case the court dismissed the NYC Transit Authority as a defendant, but said the superintendent of police was not entitled to qualified immunity from the officer's equal protection claim.

     Management "should have requested that [she] sign a waiver, as suggested by Johnson Controls, and that she be fully evaluated -- physically and psychologically -- by their own personnel to determine whether, in light of her and her doctor's notes, she was able to do her job."

     Instead of addressing the problem head on, management created a confusing chain of events which implicated possible unlawful discrimination, by not allowing her to work due to an impermissible motivation (protecting her and the fetus).  Dimino v. NYCTA, 64 F. Supp. 2d 136, 1999 U.S. Dist. Lexis 14137 (E.D.N.Y.).

Psychological Exams and Standards

The Sixth Circuit rejects an ADA attack on an employer-required Fitness For Duty Exam.  Peculiar behavior is not per se indicative that a person is regarded as mentally ill.

     School District superiors ordered a Fitness for Duty Exam (FFDE) because a teacher "engaged in disruptive and abusive verbal outbursts" and other behavior uncharacteristic with his 18 years of unblemished service.  The teacher did not submit to the exam and was fired.  A state tenure commission reduced the penalty to a three-year suspension without pay.

     The ex-teacher sued, challenging the FFDE order under the ADA.  He alleged that he was covered under the law because his superiors perceived him as disabled.  The ADA protects persons with major life disabilities and those who are "regarded as" having those disabilities.

     In upholding the School District, a three-judge federal appeals panel said that a request for a FFDE is not equivalent to treatment of the employee. “Employers need to be able to use reasonable means to ascertain the cause of troubling behavior without exposing themselves to ADA claims.”

     They said that a request for an exam "may signal that an employee's job performance is suffering, but that cannot itself prove perception of a disability."  Deteriorating performance may be linked to motivation or other reasons unrelated to disability, and even poor performance may not constitute a disability under the ADA.

     However, for an employer's request for an exam to be upheld, there must be "significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job." The panel cautioned that an employee's behavior "cannot be merely annoying or inefficient to justify an examination."  There must be genuine reason to question whether the worker can perform job-related functions.

     The panel noted that the ADA does not protect an employee from an employer's false accusation of having a disability.  "Rather, it protects employees from employers who mistakenly treat them as if they have a disability."  The law "only protects an employee who actually has or is actually believed to have a disability."  Sullivan v. River Val. Sch. Dist., # 98- 2143, 1999 U.S. App. Lexis 30676 (6th Cir.).

Full text: pacer.ca6.uscourts.gov/opinions/main.php

Residency Requirements

Boston settles two residency-termination cases where the workers had homes in the suburbs to accommodate their disabilities.

     Both were fired in 1995 and sued the city.  A police 9-1-1 operator with kidney disease lived with her father and sister in a suburb near a dialysis center, where she received treatment every few days.  She accepted a cash settlement of $85,000.  McDonald v. Menino, #96-10825 (D.Mass. 1999).

     A blind clerk, who uses a wheelchair due to cerebral palsy, moved to handicapped-accessible housing in another suburb, when he was unable to find suitably accessible housing in Boston.  He received $220,000 in cash plus $1,700 per month for life (paid from a $250,000 annuity).  Sheehan v. Menino, 37 (1840) G.E.R.R. (BNA) 1564 (D.Mass. 1999).

Retirement Rights and Benefits

Appeals court rejects claim that retired public employees must receive the same health benefits as active employees.

     An appellate court in California has ruled that state law does not require that retirees be provided with the same health benefits as active employees, even if the benefits were obtained through collective bargaining.

     In California, unions cannot bargain for benefits for retirees, and retirees are not covered by the MOUs between the unions and the public entity.  Intl. Fed. Prof. L-21 v. San Francisco, 76 Cal.App.4th 213, 1999 Cal. App. Lexis 987, 90 Cal.Rptr.2d 186 (1999).

Text: www.findlaw.com/cacases/

Sick Leave & Abuse

Federal appeals court denies overtime claims of police officers on sick leave, who are required to ask for permission before leaving their homes.

     Sick and injured Memphis police officers are confined to their residence, clinic, or hospital, except for doctor visits (unless they receive permission by a supervisor to leave their homes).  The city checks on an officer every third day by phone or home visit, during regular duty hours.  Several officers sued, claiming the policy was too intrusive and therefore compensable as overtime under the FLSA.

     A federal appeals panel noted that employer restrictions on free time can count as hours worked under 29 C.F.R. §553.221(c)- (d).  In Memphis, officers can use their free time as they please, although they must receive permission before leaving home.  There was no evidence that Memphis ever denied permission. Aiken v. Memphis, #97-6371,190 F.3d 753, 1999 U.S. App. Lexis 21268, 5 WH Cases2d (BNA) 961 (6th Cir.).

Full text: pacer.ca6.uscourts.gov/opinions/main.php

Telephone Monitoring, Audio & Video Taping

California courts uphold a $634,000 verdict for secretly videotaping fellow employees in the workplace, even though coworkers had a limited expectation of privacy.

     Last June, the California Supreme Court ruled that workers in an office or other workplace, in which the general public does not have unfettered access, have a limited expectation that their conversations and activities will not be secretly videotaped.  This applies to conversations overheard by coworkers.

     The justices said that secretly recording events and conversations in offices or other workplaces is not always a tort.  It depends on the nature of the conduct, the surrounding circumstances and the motive of the person making the recording.  That case involved an undercover journalist who taped coworkers.  Sanders v. ABC, 20 Cal.4th 907, 978 P.2d 67, 1999 Cal. Lexis 3900, 15 IER Cases (BNA) 385.

     On remand last December, an intermediate appellate court panel upheld a 1994 jury verdict of $335,000 compensatory and $299,000 punitive damages.  Sanders v. ABC, #B094245 (Unpub. Cal.App., 2d Dist.).

*    *    *    *    *    *

 » Research articles: “Technology arms peeping toms with a new and dangerous arsenal: a compelling need for new legislation,” 17 J. Mar. J. Cmptr. & Info. L. 1167 (1999); “Technology assisted physical surveillance,” 10 Harv. J. Law & Tech. 383 (1997).

Transfers - Disciplinary or Punitive

California appeals court allows an officer to have a civil service hearing prior to a disciplinary transfer, with a pay reduction.

     After threatening suicide in Feb. 1997, a sheriff's deputy was suspended from the SWAT team.  Before the suspension expired and during a phone conversation, he threatened to kill his ex- wife. The department then issued a written reprimand and removed him from the SWAT team.

     The deputy was denied an appeal to the county's civil service commission; he sued for due process violations.  A three- judge appeals panel agreed that he should have been given a full evidentiary hearing before the commission.

     Although he was not demoted in rank or suspended from pay, he suffered economic harm when he was involuntarily transferred from the SWAT team, which pays a 5% supplement. An internal hearing was not sufficient.  Before a transfer-plus pay reduction may take effect, a public agency in California must offer an evidentiary hearing supported by “sworn testimony and cross- examination of witnesses, or presentation of argument,” to which the employee and his counsel are able to respond.  Giuffre  v. Sparks, 1999 Cal. App. Lexis 1097.

Text: www.findlaw.com/cacases/

Union and Associational Activity

Firefighters, who founded the union and were not rehired after a reorganization, win $2.2 million in their wrongful employment and retaliation lawsuit.

     When a fire district in South Carolina was absorbed into a municipal department, firefighters had to reapply for appointment.  Three were not rehired; one was an Asst. Chief and another an Acting Captain.  The two had excellent performance reviews with 21 and 15 years of service.  On a hiring test, the three scored 84, 90 and 94.  Although they were rejected, several firefighters were rehired who scored less than 70.

     Two were the primary organizers of a firefighters union and served as its top officers.  The three plaintiffs had brought an overtime compensation suit which cost their department $350,000.  They claimed the Mayor and Fire Chief caused their rejection, in retaliation for union activity and free speech issues.

     The two union officials recovered $325,000 in lost wages and $525,000 in for emotional damages against the city; $575,000 in emotional damages $575,000 in punitive damages against the Mayor in his personal capacity; $95,000 against the Fire Chief in his personal capacity for emotional damages and $130,000 in punitive damages.  The third firefighter received an award of $161,000 in wages and other damages.  Gilbert v. N. Charleston, 37 (1839) G.E.R.R. (BNA) 1535 (D.S.C. 1999).

*    *    *    *    *    *

Appellate court upholds ouster of a former chief from the state’s police chiefs’ assn.  His post retirement conduct was hostile to the interests of active chiefs.

     An appellate court in New Jersey has upheld the right, of a state association of police chiefs, to expel a member. The plaintiff's continued membership in the association “would not be conducive to `congenial social intercourse' within the organization,” wrote a three-judge appellate panel.

     A former chief of police began a law practice, which included bringing actions against active chiefs. He used accusatory and contentious language in letters he wrote.  More importantly, as an ex-chief, he no longer had a business reason to retain his membership.

Plaintiff is presently engaged in the practice of law and has expressed no interest in again becoming a police chief. Consequently, he has no evident personal interest in the Association's efforts to secure legislation and other government action for the general, official and personal welfare of its members.

     The panel concluded that a person's interest in continuing a nonactive “social” membership in an association "does not outweigh the Association's interest in barring membership" if that person engages in activities that "conflict with the Association's objectives."   Stowell v. N.J. St. Assn. of Chiefs of Police, # A-7212-97T1, 1999 N.J. Super. Lexis 370 (App. Div. 1999).

Text: lawlibrary.rutgers.edu/search.html

Workers' Compensation - Claim Validity

Oklahoma allows the W.C. claim of an officer who shot himself at home, while dressing.

     While dressing for duty, an officer shot himself in the calf and ankle, requiring hospitalization. He sought worker's comp. benefits.  The lower court found that the injury "did not arise out of and was not sustained in the course of his employment."  The state supreme court reversed, 7-to-2.  The injury arose out of his employment because "a firearm is a necessary tool of a peace officer's trade."  The self-inflicted gunshot wound was "reasonably connected to his employment as a peace officer."

     The injury also arose in the course of his employment, because he was dressing in his required uniform, including the handgun. “Claimant's weapon was used for his employment with the City and there was no evidence that he holstered it for any purpose other than the requirements of employment.” Moore v. City of Norman, #91,173, 1999 OK 39, 983 P.2d 436, 1999 Okla. Lexis 46.

Full text: www.oscn.state.ok.us/


Divorce Proceedings: see Death Benefits.
Race Discrimination: see Applicant Rejections.
Residency Requirements: see Collective Bargaining - Duty to Bargain.
Sex Discrimination: see Disciplinary Punishment - Disparate Treatment.

Page numbers in [brackets] refer to the print edition.

Adams Co. Sheriff v. IAMAW L-822, 719 N.E.2d 300, 1999 Ill. App. Lexis 769. [20]
Aiken v. Memphis, 190 F.3d 753, 1999 U.S. App. Lexis 21268 (6th Cir.). [28]
Baker v. Vermont, #98-032, 1999 Vt. Lexis 406. [23-4]
Bickford v. City of Seattle, 983 P.2d 1124, 1999 Wash. App. Lexis 1626. [22]
Boston and Boston Super. Ofcrs. Fed., G.E.R.R. 953:18 (MLRC 1981). [20]
Britton v. Mill Creek, 37 (1837) G.E.R.R. 1484, Super. Ct. Wash. (1999). [25]
Decatur, City of v. AFSCME L-268, 122 Ill.2d 353, 522 N.E.2d 1219 (1988). [20]
Dimino v. NYCTA, 64 F. Supp. 2d 136, 1999 U.S. Dist. Lexis 14137 (E.D.N.Y.). [25-6]
EEOC v. SSPI, 29 F.Supp.2d 911, 1999 U.S. Dist. Lexis 471 (N.D. Ill.). [24]
Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir. 1993); cert. den., 114 S.Ct. 2726 (1994). [24]
Gilbert v. N. Charleston, 37 (1839) G.E.R.R. (BNA) 1535 (D.S.C. 1999). [29-30]
Giuffre  v. Sparks, 1999 Cal. App. Lexis 1097. [29]
Holbrook v. Reno, #98-5462, 1999 U.S. App. Lexis 30623 (D.C. Cir.). [22-3]
Intl. Fed. Prof. L-21 v. San Francisco, 1999 Cal. App. Lexis 987, 90 Cal.Rptr.2d 186 (1999). [27-8]
Law Enf. Labor Serv. v. Co. of Cook, 1999 Minn. App. Lexis 1045 (Unpub.). [19-20]
McDonald v. Menino, #96-10825 (D.Mass. 1999). [27]
Moore v. City of Norman, 1999 OK 39, 983 P.2d 436, 1999 Okla. Lexis 46. [30-1]
Moon Twp. v. Police Officers, 498 A.2d 1305 (Pa. 1985). [20]
Pacific Mar. Assn. v. L-63, 1999 U.S. App. Lexis 32077 (9th Cir. 1999). [25]
Reno Hilton and United Plant Guard Workers, 1998 NLRB Lexis 822, 326 NLRB No. 154. [20-21]
Sanders v. ABC, 978 P.2d 67, 1999 Cal. Lexis 3900, on remand. [28-9]
Sheehan v. Menino, 37 (1840) G.E.R.R. (BNA) 1564 (D.Mass. 1999). [27]
Smithberg v. IL Mun. Retir. Fund, 716 N.E.2d 316, 1999 Ill. App. Lexis 578. [22]
St. Bernard v. State Empl. Rel. Bd., 74 Ohio App.3d 3, 598 N.E.2d 15 (1991). [20]
State v. Pearson, 985 P.2d 919, 1999 Utah App. Lexis 101. [21]
Stowell v. N.J. St. Assn. of Chiefs of Police, 1999 N.J. Super. Lexis 370 (App. Div. 1999). [30]
Sullivan v. River Val. Sch. Dist., 1999 U.S. App. Lexis 30676 (6th Cir.). [26-7]
Temple Univ. and I.U.U.P.G.W.A., 34 (1694) G.E.R.R. (BNA) 1733 (1996). [21]
U.S. v. Schwartz, 62 F.Supp.2d 887, 1999 U.S. Dist. Lexis 12110 (E.D.N.Y.). [21]
U.S. v. Turner, 189 F.3d 712, 1999 U.S. App. Lexis 18747 (8th Cir.). [21]
UAW v. Johnson Controls, 499 U.S. 187, 111 S.Ct. 1196 (1991). [26]
Watkins v. Chicago, 1999 U.S. Dist. Lexis 17180 (N.D. Ill.). [19]

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