© Copyright 2000 by Fire and Police Personnel Reporter
Contents (or partial contents) may be downloaded,
stored, printed or copied by, or shared with, employees of
the same firm or government entity that subscribes to
this library, but may not be sent to, or shared with others.
Fire and Police Personnel Reporter
An Employment Law Publication
for Law Enforcement, Corrections
and the Fire/EMT services

July, 2000 web edition

Cite this issue as 2000 FP Jul (web edition)
Return to the monthly publications menu
Report non-working links here

Age Discrimination - Retirement
Collective Bargaining/Duty to Bargain
Death Benefits
Disability Rights & Benefits
Disciplinary Appeals
Fair Labor Standards - Overtime
Firearms/Restrictions on Wearing
Free Speech
Funding/Reimbursement for Services
Hairstyle/Appearance Regulations
Handicap/Abilities Discrimination
Impasse Arbitration
Out of Title Assignments
Parental Discrimination
Privacy Rights
Sexual Harassment
Telephone / AV Taping
Whistleblower Requirements/Protection
Article Noted
Cross References
Cases Cited

Age Discrimination - Mandatory Retirement

Chicago reinstates age-63 mandatory retirement for police officers and firefighters.

     The City Council has adopted an ordinance reinstating a mandatory retirement age of 63, a maximum hiring age of 35 for firefighters and 40 for police officers. It does not apply to paramedics.

     Chicago police officers and firefighters were required to retire at 63 since 1935.  The age was raised to 70 after the U.S. Supreme Court's decision in Garcia v. SAMTA, 105 S.Ct. 1005 (1985).  The 1996 amendments to the ADEA allow the adoption of a mandatory retirement age of 55 for both firefighters and law enforcement officers; see 29 U.S. Code §623(j) discussed at 1997 FP 3.  The police and fire unions have promised retaliatory action.  Chicago Ordinance 5/17/2000, 38 (1864) G.E.R.R. (BNA) 660.

Collective Bargaining - Duty to Bargain

City could not discontinue making bonus payments to captains without negotiating the issue with the union, even though the bargaining agreement was silent.

     For many years Boston paid $27 per week to the five police captains who served as commanders of special units, even though there was nothing in the bargaining contract recognizing the differential.  The city unilaterally stopped making the payments and the union challenged the action. The Labor Relations Cmsn. found that the city had committed an unfair labor practice and ordered the city to bargain the issue.

     The city appealed, claiming the union could have included the payments in the numerous bargaining sessions, but failed to raise it.  A three-judge appellate panel affirmed the commission.  They noted that the “only evidence of a waiver ... is that the [CBA] is silent on the issue of differentials.”

     “Silence on an issue, without more, particularly in the face of past practice, does not constitute a waiver.”  Boston v. Labor Rel. Cmsn., #97-P-1232, 48 Mass. App. Ct. 169, 718 N.E.2d 875, 1999 Mass. App. Lexis 1127, 162 LRRM (BNA) 2775.

Text: www.state.ma.us/courts/index.html

*    *    *    *    *    *

In a 4-3 decision, New York's highest court holds that a city must bargain over mandatory surgery or return to duty orders to disabled officers and firefighters, when the fitness-for-duty determination is disputed.

     In New York, disabled police officers and firefighters who suffer injury or illness in the course of employment continue to receive their salary, but the City has the right to compel medical examinations, prescribe treatment or surgery, and order them back to work -- for full or light duty -- if they are capable.

     In 1995, the state's highest court held that a city need not resort to the bargaining process to compel disabled workers to return to light duty work.  Schenectady PBA v. PERB, 85 N.Y.2d 480, 650 N.E.2d 373, 1995 N.Y. Lexis 701.  The Court of Appeals has revisited the issue, and changed that ruling, 4-to-3.

     The majority said that a city has the right to make an initial determination, to have an examining physician of its choosing, to require indicated medical or surgical treatment, to order any fit officer back to work and to discontinue benefits if an officer ignores a back-to-work order.

     However, the issue is what happens when an officer raises a genuine dispute concerning the City's determination?  An officer ordered to undergo surgery “may wish to have the opinion of a personal physician considered, pursuant to a negotiated procedure, before submitting to the knife.”

     The dissenting judges said that the majority opinion impairs a municipality's authority to make eligibility determinations.  Watertown (City of) v.  N.Y. Pub. Empl. Rel. Bd., #38, 2000 N.Y. Lexis 902. 

Full text: www.law.cornell.edu/ny/ctap/overview.html

Death Benefits

A federal court in Georgia has ruled that a police captain who murdered her husband is the only person entitled to sue for his wrongful death.

     The ruling was in a lawsuit brought by the victim's mother against the ex-captain and the city.  The suit claimed the city and police chief failed to disarm the captain after a suicide attempt.  The murder weapon was a city-issued .40-cal. Glock.  The ex-captain was head of the police department's domestic violence squad.  She claimed the weapon discharged accidentally.

     The Georgia wrongful death statute [O.C.G.A. 51-4-2] does not confer legal standing upon a child or others, in an action to recover for the death of a homicide victim, unless there is no surviving spouse.  Carringer v. Tessmer, No. 5:00-CV-14 (M.D.Ga.); Fulton Co. Daily Rep. 5/23/2000.

Disability Rights and Benefits

N.Y. upholds the right of a public agency, after an uncontroverted medical exam, to recall a disabled employee to duty, without a prior evidentiary hearing.  A post-recall hearing is adequate protection of an employee's rights.

     Six disabled Albany, N.Y., firefighters were examined by the City's physician.  One was ordered to return to full duty; the other five were recalled to light duty assignments.  The union sued, claiming that the return to work order, without a prior evidentiary hearing, violated their rights of due process.  Each was entitled to a hearing after the recall order.

     New York's highest court has ruled that a public employee is not entitled to a hearing prior to a recall to light duty, following a medical determination, unless the employee submits a report by his personal physician expressing a contrary opinion.

     The court said “it hardly seems unduly burdensome to require the firefighter to submit a medical report from a personal physician disputing the governmental physician's finding, as a condition for continued receipt of [statutory] disability benefits...”

     A “governmental interest is clearly served by declining to trigger the hearing requirement before the order to report for duty has been issued and a medical dispute on the propriety of the order has been demonstrated by the recipient.”  Uniform Firefighters L-2562 v. City of Cohoes, #29, 2000 N.Y. Lexis 901.

Full text: www.law.cornell.edu/ny/ctap/overview.html

Disciplinary Appeals - In General

Federal court in N.Y. declines to dismiss a First Amendment challenge to the terminations of a police officer and two firefighters who rode on a parade float in blackface.  A federal court is not necessarily bound by the decisions of a disciplinary hearing authority that rejected the constitutional challenge.

     A NYPD officer and two NYFD firefighters were fired for riding on a Labor Day parade float in Queens while wearing blackface.  The float was called “Black to the Future” and parodied African-Americans.  A videotape of the float was aired on CBS; the media portrayed the incident as racist.

     The three filed suit in federal court, alleging their terminations violated their rights under the First Amendment -- a defense specifically rejected by the hearing authorities in both departments.  The city sought summary dismissal of their federal lawsuit for reasons of collateral estoppel.

     The judge noted that the Ninth Circuit has held that an unreviewed administrative adjudication is entitled to collateral estoppel effect, for both the legal and factual determinations, in a subsequently filed §1983 action alleging a violation of a police officer's First Amendment rights.  Eilrich v. Remas, 839 F.2d 630, 632-33 (9th Cir. 1988); Miller v. Co. of Santa Cruz, 39 F.3d 1030, 1032-35 (9th Cir. 1994).

     However, four other Circuits have rejected the reasoning adopted in Eilrich: Edmundson v. Bor. of Kennett Square, 4 F.3d 186, at 192-93 (3d Cir. 1993); Dionne v. Mayor and City Council, 40 F.3d 677, at 685 (4th Cir. 1994); Peery v. Brakke, 826 F.2d 740, at 746 (8th Cir. 1987); and Gjellum v. City of Birmingham, 829 F.2d 1056, at 1064-65 & n. 21 (11th Cir. 1987).

     The reason to provide a collateral estoppel defense is to prevent litigants from attempting to avoid state review of their claims by bringing suit in federal court.  Because the Second Circuit had not decided the issue of collateral estoppel of unreviewed administrative adjudications, summary judgment is inappropriate.  Locurto v. Giuliani, #98 Civ. 6495, 95 F.Supp.2d 161, 2000 U.S. Dist. Lexis 5576 (S.D.N.Y.).

Fair Labor Standards Act - Overtime & in General

Supreme Court allows public employers to compel workers to use their accumulated comp time.

     Deputy Sheriffs in Houston challenged a county requirement that they take their comp time at the county's convenience.  With three dissenting votes, the Supreme Court said that governmental agencies have the authority to control when comp time credits are used, unless a bargaining agreement says otherwise.

     The U.S. Dept. of Labor had issued opinions disapproving of the practice.  In an opinion by Justice Clarence Thomas, the majority rejected a DoL opinion which said that the FLSA prohibits a public employer from requiring workers to take comp time on an as-required basis.  Christensen v. Harris Co., #98-1167, 120 S.Ct. 1655, 2000 U.S. Lexis 3003, 5 WH Cases2d (BNA) 1825.

Full text: www.supremecourtus.gov

     The Court also declined to review two other cases raising similar issues, in which the employer prevailed.  Collins v. Lobdell, 188 F.3d 1124, 5 WH Cases2d 929 (9th Cir.), cert. den. #99-592 & #99-788 sub nom Spokane Val. Fire Ptn. Dist. v. Collins.

*    *    *    *    *    *

Federal court's order to a sheriff, to reimburse the county more than $1 million for unpaid overtime, is reversed.  Fifth Circuit holds that a public official or employee is not required at common law to indemnify the city or county for liability incurred by the official or employee.

     Sheriff's deputies in Mississippi sued for unpaid overtime.  The county filed a third-party claim against the sheriff, individually, seeking indemnification as the actual employer.  The deputies won their a judgment for three years of overtime pay; the court found the violations willful and granted double damages.  Rather than appeal, the county settled the claims for $750,000

     The court also agreed with county, and ordered the sheriff to reimburse the county the $750,000, plus $264,430 in attorneys' fees. On appeal, the Fifth Circuit reversed.  The three-judge panel said it found no cases where the courts have recognized an indemnification claim by a public entity against a public employee, for acts in the course and scope of employment.

     It should be noted that this was a common law third-party indemnity claim.  The result would be different if (1) a state has a statute requiring indemnity, or (2) if the official or employee has insurance or a non-recourse bond for indemnity purposes, or (3) the official or employee has freely and without adhesion, contractually agreed to indemnify the entity.  Barfield v. Madison Co., Miss., #98-60636, 2000 U.S. App. Lexis 9536, 6 WH Cases2d (BNA) 1 (5th Cir.).

Text: www.law.utexas.edu/us5th/us5th.html

Firearms - Restrictions on Wearing

California Attorney General rules that a business to which the public is invited may prohibit off-duty police officers from carrying concealed weapons on the premises.

     The A.G. noted that a policy of an amusement theme park in excluding persons carrying firearms does not violate any constitutional rights of off-duty or retired police officers.  "The owner of private property, whether open to the public or not, may deny entry based upon perceived reasonable conditions, not otherwise unlawful, in the interests of public health and safety.”

     “An off-duty or retired police officer [has] no greater rights than members of the general public in such circumstances."  Cal. A.G. Opin. #99-1208, 00 C.D.O.S. 3664 (2000).

Full text: http://caag.state.ca.us/opinions/search.htm

*    *    *    *    *    *

  » Research Note: We previously reported [1993 FP 174] that a California public employer may not prohibit peace officers from carrying firearms while off-duty.  Orange Co. Emplees. v. Co. of Orange, 14 Cal.App.4th 575, 17 Cal.Rptr.2d 695 (App. 1993).

     In other states, a public employer can decide whether its peace officers should be armed while on or off-duty.  See Novi (City of) and Teamsters L-214, 103 LA (BNA) 132 (Brown, 1994); Lucas v. Dept. of the Navy, 1994 MSPB Lexis 917 (1994); Boston (City of) v. Boston Police Patrolmen's Assn., 392 N.E.2d 1202 (Mass.App. 1979); People ex rel. Jaworski v. Jenkins, 372 N.E.2d 881 (Ill.App. 1978).

Free Speech

Federal appeals court affirms termination of a firefighter who accused the chief of favoritism to homosexuals and promoting a radical lesbian agenda.

     A Madison WI firefighter, who also is a pastor of a church, publicly condemned the appointment the city's new fire chief.  Later he distributed a “news release” to local newspapers accusing the chief of favoritism to homosexuals and promoting a radical lesbian agenda.  He also wrote a tract calling homosexuality a filthy scourge and blamed gays for disease and child molestation.

     The tirade continued, almost relentlessly.  He was fired for flagrant insubordination and accusing the chief of being a lesbian, without just proof.  The civil service board upheld the termination.  The firefighter then sued the chief and city, alleging violation of his rights of due process, equal protection and the First Amendment.

     The District Court dismissed his claims; see 22 F.Supp.2d 916, 1998 U.S. Dist. Lexis 15898 (W.D.Wis.).  A three-judge appeals panel has affirmed.  Although his actions were nominally protected by the First Amendment, his harangues, although sincere, were potentially disruptive and were made with a reckless disregard of the truth or falsity of the assertions.

     In upholding the termination, the panel noted that “Recklessly false statements by a public employee enjoy no First Amendment protection.”  Greer v.  Amesqua, #99-2767, 2000 U.S. App. Lexis 9155, 16 IER Cases (BNA) 452 (7th Cir.).

Full text: www.ca7.uscourts.gov

Funding Disputes & Reimbursement for Services

Missouri Supreme Court upholds law enforcement admissions surcharge for riverboat casinos.

     Casino operators in Missouri challenged a law which requires them to charge admittees $1 for, among other things, gaming law enforcement services provided by the state's Highway Patrol.  The receipts paid to the state's Gaming Fund exceeded administrative costs by at least a 3-to-1 ratio.

     The casino operators claimed that the assessment violates the Interstate Commerce Clause, as interpreted under the Supreme Court's decision in Evansville-Vanderburgh Airport v. Delta Airlines, 405 U.S. 707, 92 S.Ct. 1349 (1972).  The Evansville case established a three-part test: whether a fee: (1) discriminates against interstate commerce, (2) reflects a fair value of the benefit, and (3) is excessive in relation to the cost incurred by the state.

     The justices ruled that (1) the fee does not discriminate against interstate commerce; (2) the riverboats pay the exact cost of the Highway Patrol's law enforcement services; and (3) the reimbursement amounts were not excessive.  President Riverboat Casino v. Mo. Gaming Cmsn., #SC81685, 13 S.W.3d 635, 2000 Mo. Lexis 23.

Full text: www.state.mo.us/sca/mainhand.htm

Hairstyle and Appearance Regulations

Justice Dept. sues Newark over its grooming policy, which impacted Islamic police officers.

     We previously reported [1999 FP 73-4] that the Third Circuit struck down a Newark, N.J. police rule that prevented two Muslim officers from wearing beards.  The panel concluded that an employer cannot agree to modify its rules in order to make a reasonable accommodation for medical reasons under the Americans with Disabilities Act, while refusing to bend the same rule to make a religious accommodation under Title VII (Equal Employment Opportunity).

     The Supreme Court later declined to hear the case.  See F.O.P. L-12 v. City of Newark, #97-5542, 170 F.3d 359, 1999 U.S. App. Lexis 3338, 79 FEP Cases (BNA) 323 (3rd Cir.); cert. den., 1999 U.S. Lexis 5004.

Full text: www.law.vill.edu/Fed- Ct/ca03.html

     The Justice Dept. suit was filed in May, seeks damages for any current or former Muslims who were the victims of religious bias.  The department recently revised its grooming policy, and has not disciplined any officers for wearing a beard.  Allegedly officers who did not shave were transferred to nonpublic jobs, such as the city's subterranean Central Cellblock.  U.S. v. Newark, #00-2368, 38 (1864) G.E.R.R. (BNA) 666 (D.N.J.); DoJ Civ. Rts. Release #00-269.

*    *    *    *    *    *

New Jersey settles facial hair lawsuit with Muslim correctional officers; documentation requirements eased.

The state has settled with 33 Sunni Muslim officers. Those seeking a religious exemption must file an annual request. Prior to the settlement, officers had to submit documentation from a third-party religious leader every six months.  Muhammad v. N.J. Dept. of Corr., #00-1342, 38 (1864) G.E.R.R. (BNA) 666  (D.N.J. 2000).

*    *    *    *    *    *

  » Editor's Note: A Muslim N.Y. park ranger, who was suspended for wearing a beard, has been reinstated and will receive $25,700 in back wages.  In the settlement, management also has agreed to revise agency regulations to allow officers to seek exemptions to the no-beard rule for religious grounds.  Muhammad Ali v. N.Y. State Park Police; settlement reported May 16, 2000.

Handicap/ Abilities Discrimination - Specific Disabilities

Justice Dept. sues Mississippi for not accommodating a diabetic state trooper.

     While at the academy, an insulin-dependent recruit was denied access to a vending machine. The next day, superiors prevented him from obtaining specific additional food at the cafeteria. Because he could not control his diabetes with food, he suffered a hypoglycemic episode.

     When he became disoriented and unresponsive, he was dismissed from the academy, and was ordered to leave the premises.  The diabetic recruit has extensive prior service a law enforcement officer and had successfully completed three other law enforcement and military academies.

     The suit seeks reinstatement, back pay, compensatory damages, and injunctive relief.  U.S. v. Miss. Dept. of Public Safety (D. Miss.); DoJ Civil Rights Release #00-274.

Impasse Arbitration

Appeals court overturns an arbitration award forcing Boston to indemnify officers for their intentional torts, but upholds an exemption from the city's residency law for veteran patrolmen who are promoted out of the bargaining unit.

     The Boston Patrolmen's Assn. sought a contract provision requiring the city to indemnify patrolmen up to one million dollars for liabilities arising out of intentional torts or civil rights violations if committed within the scope of their employment and not the result of gross negligence or willful and/or malicious conduct.

     At an impasse procedure, the arbitrator agreed with the union.  The city challenged the award in court, noting it removed its discretionary power to indemnify on a case-by-case basis and negated a managerial prerogative.

     The appellate panel agreed.  The legislature, in allowing decisions on a case-by-case basis, sought to limit the exposure of taxpayers to large judgments from the intentional torts and civil rights violations of public employees.

     The arbitrator adopted the city's demand for a residency requirement for newly hired patrolmen, exempting current patrolmen, and allowing them to live outside the city if they are promoted and are no longer a member of the bargaining unit.  The trial judge struck the portability clause, ruling that the arbitrator's authority extended only to resolving disputes of officers who remain as members of the bargaining unit.

     That action was reversed, and the portability right was reinstated.  “It stretches the statutory language to argue, as the city does, that a patrolman should be considered newly appointed to the department upon promotion to a superior rank within the department.”  Boston and B.P.P.A., #97-P-1884, 48 Mass.App.Ct. 74, 717 N.E.2d 667, 1999 Mass. App. Lexis 1105.

Text: www.state.ma.us/courts/index.html

Out of Title Assignments

Arbitrator holds that a city violated the bargaining agreement in requiring police officers to check vehicle oil levels.  The contract prohibited assigning duties customarily performed by other city employees.

     The police chief ordered subordinates to check the engine oil level of their city vehicles at the time of refueling.  Previously, this was performed by a service station attendant.  The union grieved because officers would be performing non-law enforcement duties in violation of the bargaining agreement.

     The city countered that every officer has a duty to inspect his equipment and "a police vehicle is essential equipment for any officer."  The arbitrator found that police officers cannot unilaterally be ordered to perform maintenance functions under the contract.  Toledo and Toledo Police Pat. Assn., 114 LA (BNA) 149 (McDonald, 2000).

Parental Discrimination

President Clinton adds parental status to the list of protected classes from discrimination in the federal workplace.

     Executive Order 11478 has been modified to include an individual’s status as a parent.  The term includes a stepparent or a biological, adoptive or foster parent; a custodian of a legal ward; a person “in loco parentis over such an individual” and a person who is actively seeking legal custody or adoption of such an individual.  Executive Order 13152, 65 Fed. Reg. 26115 (May 2, 2000).

Full text:


Privacy Rights

Ninth Circuit, joining four other circuits, sets conditions under which a party can sue as a J. Doe.

     Twenty-three employees who sued for wage violations under the FLSA brought the action as J. Does.  The defendants sought dismissal for that reason, and the district court agreed.  The judge said their fear of retaliation was conjectural and was based on hearsay and innuendo.  An appellate panel of the Ninth Circuit has reversed, saying that courts have permitted plaintiffs to use pseudonyms in three situations:

(1) when identification creates a risk of retaliatory physical or mental harm ...

(2) when anonymity is necessary to preserve privacy in a matter of sensitive and highly personal nature ... and

(3) when the anonymous party is compelled to admit his or her intention to engage in illegal conduct, thereby risking criminal prosecution.

     They said that a party may preserve anonymity when the need outweighs the prejudice to the opposing party, using the following factors:

(1) the severity of the threatened harm ...

(2) the reasonableness of the anonymous party's fears ... and

(3) the anonymous party's vulnerability to such retaliation.

     The panel reversed the order denying the plaintiffs’ motion to proceed anonymously and reinstated the lawsuit.  Does I-XXIII v. A.T.C., #99-16713, 00 C.D.O.S. 4297, 2000 U.S. App. Lexis 12049 (9th Cir.).

Text: www.ce9.uscourts.gov/opinions

*    *    *    *    *    *

  » Research Note: We previously noted that a police officer did not have a legal right to bring a suit against the municipality without disclosing his true name or valid reasons for no doing so.  John Doe complaints, when allowed by the courts, must be based on a motion setting forth compelling reasons for anonymity.  Doe v. Bor. of Morrisville, 130 F.R.D. 612 (E.D.Pa. 1990).

Sexual Harassment - In General

Florida appellate court overturns “common law” negligence $206,250 verdict against a city for tolerating a sexually hostile work environment.  State supreme court has agreed to review the claim.

     A police dispatcher sued the city for common law negligence, alleging a pattern of sexual harassment and the failure to provide a non-hostile work environment. The trial court denied the city's motion to dismiss. During a yearlong internal affairs probe, the complainant was fired for missing too much work. She became ill, allegedly as the result of the sexual harassment.

     The jury returned a plaintiff's verdict for $275,000, less 25 percent for negligence on the plaintiff's part.  On appeal, a three-judge appellate panel reversed, because “Florida does not recognize a cause of action for sexual harassment under a common law negligence theory.”

     The state supreme court has agreed to hear the case and to decide the issue next year.  Because such cases are almost always filed under Title VII of the Federal law or the state FEP equivalent.  Miami Beach v. Guerra, #99-827, 746 So.2d 1159, 1999 Fla. App. Lexis 15667 (3rd Dist.); review granted, Fla. Sup. Ct. (May, 2000).

Telephone Monitoring, Audio & Video Taping

Federal court refuses to dismiss criminal charges against NYPD officer who intercepted the Police Commissioner's alphanumeric pager messages.

     The officer was the subject of a federal sting operation.  The indictment charged that he intercepted pager messages in violation of §2511(1)(a) and §2512(1)(b) of the Electronics Communications Privacy Act, using a radio scanner and a computer.  One of the pagers he accessed was issued to the driver for Police Commissioner Howard Safir.

     The officer claimed his conduct was exempt under §2511(g) of the act, which excludes any radio communication transmitted by any governmental, law enforcement or public communications system that is "readily accessible to the general public."

     The court said that section applies only to tone pagers.  The judge also rejected a "selective prosecution" defense.  U.S. v. Sills, #99 Cr. 1133, 2000 U.S. Dist. Lexis 5570 (S.D.N.Y.).

Whistleblower Requirements and Protection

Federal appeals court in New York upholds a retaliatory harassment and constructive discharge lawsuit filed by three officers against the sheriff and undersheriff, after they reported to the FBI the physical abuse of jail inmates.

     In Schenectady N.Y. in 1994, jail officers were attacked by several inmates.  The next day a group of sheriff's officers “inflicted severe physical abuse on seven inmates at the jail.”  Inmates were dragged, thrown, kicked, punched, beaten while naked, handcuffed, and shackled.

     A federal investigation ensued and five officers were indicted.  Three officers testified for the government; only one officer-defendant was convicted.  Those officers who were thought to have cooperated with the FBI probe were subjected to harassment and intimidation by their coworkers.

     They were depicted as rats and snitches on graffiti, they were subjected to name-calling in public areas and over walkie-talkies, they received harassing telephone calls, and they received outright threats of physical harm.

     A major, one of three plaintiffs in a subsequent whistleblower lawsuit, testified that there is a code of silence at the jail and that officers who report wrongdoing by fellow officers face severe ostracism.

     He had received up to 20 anonymous and menacing internal phone calls a day.  His radio transmissions were interfered with by mike clicks by other officers, potentially threatening his safety.

     The harassment was so serious the major underwent psychotherapy and was unable to work.  His application for disability benefits was denied, and his employment was terminated.  Another officer also underwent psychiatric care, suffered a panic attack and was unable to return to work.  His application for disability benefits also was denied, and he likewise was fired.

     In the federal whistleblower lawsuit that followed, the sheriff and undersheriff sought dismissal because there was no evidence they personally caused the harassment and intimidation.  The County contended that it did not have a policy of causing harassment.

     The trial judge released the county from liability, and ruled that an elected sheriff in New York is not a final policymaking authority.  A three-judge appellate panel reversed, noting that there is:

... no provision of State or local law that requires a sheriff to answer to any other entity in the management of his jail staff with respect to the existence or enforcement of a code of silence.  We conclude that [the] Sheriff [was] the County's final policymaking official with respect to the conduct of his staff members toward fellow officers who exercise their First Amendment rights to speak publicly or to inform government investigators of their co-workers' wrongdoing.

... there was ample evidence to permit a rational juror to find that [the] Sheriff... directly encouraged the acts of retaliation against plaintiffs for exercise of their First Amendment rights. * * * ... a jury could permissibly find that the code of silence was part of [the sheriff's] standard operating procedure at the Jail. * * *

[A] jury could well find that, even if [the sheriff] did not directly cause the retaliation, he either acquiesced in it or was deliberately indifferent to the reprisals against officers who exercised their First Amendment rights in breach of the code of silence.

     The appellate panel vacated the lower decision and remanded the matter for trial, assessing the costs of appeal against the defendants.  Jeffes v. Barnes, #98-9369, 208 F.3d 49, 2000 U.S. App. Lexis 5150, 16 IER Cases (BNA) 333 (2nd Cir.).

Full text: www.tourolaw.edu/2ndCircuit

*    *    *    *    *    *

Although a deputy sheriff reported misconduct to his superiors, he was not a protected whistleblower because the decision to terminate him was made by senior officers who were unaware of his complaints about coworkers.

     A probationary deputy was terminated for poor work performance.  In response to a lawsuit, the Sheriff claimed he did not know of the deputy's complaints and there was no independent proof the Sheriff was aware of the allegations.  Phelps v. Cortland Co., #86000, 706 N.Y.S.2d 522, 2000 N.Y. App. Div. Lexis 464.

Text: www.courts.state.ny.us/reporter/Decisions.htm



     “Past sexual conduct in sexual harassment cases,” 75 (1) Chicago-Kent Law Rev. (1999).  Info: www.lawreview.kentlaw.edu


Criminal Liability:  see  Telephone Monitoring, Audio & Video Taping.
Civil Liability:  see  Impasse Arbitration.
Disability Rights and Benefits:  see Collective Bargaining - Duty to Bargain.
Privacy Rights:  see  Telephone Monitoring, Audio & Video Taping.
Residency Requirements:  see  Impasse Arbitration.
Taxation:  see  Funding Disputes & Reimbursement for Services.

Numbers in [brackets] refer to page in print edition.

Barfield v. Madison Co., 2000 U.S. App. Lexis 9536, 6 WH Cases2d (BNA) 1 (5th Cir.). [102-3]
Boston and B.P.P.A., 717 N.E.2d 667, 1999 Mass. App. Lexis 1105. [106]
Boston v. Boston Police Pat. Assn., 392 N.E.2d 1202 (Mass.App. 1979). [103]
Boston v. Labor Rel. Cmsn., #97-P-1232, 718 N.E.2d 875, 1999 Mass. App. Lexis 1127. [99]
Carringer v. Tessmer, No. 5:00-CV-14 (M.D.Ga.); Fulton Co. Daily Rep. 5/23/2000.  [100]
Christensen v. Harris Co., #98-1167, 120 S.Ct.1655, 2000 U.S. Lexis 3003. [102]
Collins v. Lobdell, 188 F.3d 1124, 5 WH Cases2d 929 (9th Cir.). [102]
Dionne v. Mayor, 40 F.3d 677 (4th Cir. 1994). [101-2]
Doe v. Bor. of Morrisville, 130 F.R.D. 612 (E.D.Pa. 1990). [107-8]
Does I-XXIII v. A.T.C., 2000 U.S. App. Lexis 12049 (9th Cir.). [107-8]
Edmundson v. Bor. of Kennett Square, 4 F.3d 186 (3d Cir. 1993). [101]
Eilrich v. Remas, 839 F.2d 630, 632-33 (9th Cir. 1988). [101]
Evansville-Vanderburgh Airport v. Delta Airlines, 405 U.S. 707, 92 S.Ct. 1349 (1972). [104]
F.O.P. L-12 v. City of Newark, 170 F.3d 359, 1999 U.S. App. Lexis 3338. [105]
Gjellum v. City of Birmingham, 829 F.2d 1056 (11th Cir. 1987). [102]
Greer v.  Amesqua, #99-2767, 2000 U.S. App. Lexis 9155 (7th Cir.). [103-4]
Jeffes v. Barnes, #98-9369, 208 F.3d 49, 2000 U.S. App. Lexis 5150 (2nd Cir.). [109-10]
Locurto v. Giuliani, #98 Civ. 6495, 95 F.Supp.2d 161, 2000 U.S. Dist. Lexis 5576 (S.D.N.Y.). [101-2]
Lucas v. Dept. of the Navy, 1994 MSPB Lexis 917 (1994). [103]
Miami Beach v. Guerra, 746 So.2d 1159, 1999 Fla. App. Lexis 15667; rev. gtd. (May, 2000). [108]
Miller v. Co. of Santa Cruz, 39 F.3d 1030, 1032-35 (9th Cir. 1994). [101]
Muhammad v. N.J. Dept. of Corr., #00-1342, 38 (1864) G.E.R.R. (BNA) 666  (D.N.J. 2000). [105]
Muhammad Ali v. N.Y. State Park Police; settlement reported May 16, 2000. [105]
Novi (City of) and Teamsters L-214, 103 LA (BNA) 132 (Brown, 1994). [103]
Orange Co. Emplees. v. Co. of Orange, 14 Cal.App.4th 575, 17 Cal.Rptr.2d 695 (App. 1993). [103]
Peery v. Brakke, 826 F.2d 740 (8th Cir. 1987). [102]
People ex rel. Jaworski v. Jenkins, 372 N.E.2d 881 (Ill.App. 1978). [103]
Phelps v. Cortland Co., 706 N.Y.S.2d 522, 2000 N.Y. App. Div. Lexis 4649. [110-11]
President Riverboat Casino v. Mo. Gaming Cmsn., 13 S.W.3d 635, 2000 Mo. Lexis 23. [104]
Schenectady PBA v. PERB, 85 N.Y.2d 480, 650 N.E.2d 373, 1995 N.Y. Lexis 701. [100]
Spokane Val. Fire Ptn. Dist v. Collins, #99-592 & #99-788, cert. den. (2000). [102]
Toledo and Toledo Police Pat. Assn., 114 LA (BNA) 149 (McDonald, 2000). [107]
U.S. v. Miss. Dept. of Public Safety (D. Miss.). [105-6]
U.S. v. Newark, #00-2368, 38 (1864) G.E.R.R. (BNA) 666 (D.N.J.). [105]
U.S. v. Sills, #99 Cr. 1133, 2000 U.S. Dist. Lexis 5570 (S.D.N.Y.). [109]
Uniform Firefighters L-2562 v. City of Cohoes, #29, 2000 N.Y. Lexis 901. [100-1]
Watertown (City of) v.  N.Y. Pub. Empl. Rel. Bd., #38, 2000 N.Y. Lexis 902. [99-100]

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

© Copyright 2000 by Fire and Police Personnel Reporter
Contents (or partial contents) may be downloaded,
stored, printed or copied by, or shared with, employees of
the same firm or government entity that subscribes to
this library, but may not be sent to, or shared with others.