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Bargaining Unit Determinations

     Although police unions often have a charter prohibiting representation of other occupations, there is no reason why a bargaining unit of 400 Water District workers cannot include 51 police officers employed by the District. “A subgroup of a bargaining unit is not entitled to separate representation simply because it is a more appropriate bargaining unit, so long as the existing bargaining unit is itself appropriate.” Severance denied.  Illinois Council of Police v. Illinois Labor Relations Board, #1-06-1645, 2008 Ill. App. Lexis 1284 (1st Dist.).

Criminal Liability

     Florida affirms a conviction and death sentence for the murder of a correctional officer; the trial court properly denied the appellant’s motion to suppress his videotaped confession because of undernourishment and sleep deprivation. Smith v. State of Florida, #SC06-1903, 2008 Fla. Lexis 1639.

     Sixth Circuit upholds an enhanced sentence for a former jail administrator who arranged the beating of an inmate. United States v. Gilpatrick, #07-5653, 548 F.3d 479, 2008 U.S. App. Lexis 24199 (6th Cir.).   DoJ Press release

Damages, Remedies and Enforcement of Settlements

    Settlement agreements negotiated between a N.Y. police union and the city manager are enforceable, without further approval by the city council. Under N.Y. bargaining laws, there is no requirement that legislative approval is needed to formalize a labor-management legal obligation. Patrolmen’s Benev. Assn. v. City of Long Beach, Index No. 10692/06, 2007-07305, 2008 NY Slip Op 9573, 868 N.Y.S.2d 306, 2008 N.Y. App. Div. Lexis 9328 (2nd Dept.).

Demotions

     Demotion of a deputy police chief to lieutenant was without procedural error. It was an at-will position and she lacked a property interest in her position as assistant chief. She was demoted following a scandal involving her division; the chief had lost confidence in her leadership ability. Saucedo-Falls v. Kunkle, #07-11177, 2008 U.S. App. Lexis 23011 (Unpub. 5th Cir.).

Disciplinary Appeals & Challenges - In General

     An employee and management entered into a settlement agreement, which provided that the employee would not to file any additional administrative or judicial actions regarding the subject matter of the settlement. The employee then filed an EEO complaint based on the subject matter of his previous appeal. Breaching the agreement by reinitiating administrative or judicial procedures went to the essence of the contract by completely destroying the most valuable aspect of the agreement for the agency. Caston v. Dept. of Interior, #2008-3226, 2008 U.S. App. Lexis 22616 (Unpub. Fed. Cir.).

     Where statutes and civil service rules are silent on the point, a probationary employee is not entitled to challenge his discharge via binding arbitration, where the bargaining agreement makes it clear that arbitration rights do not inure to probationary employees. County of Cattaraugus v. Nuss, #74422, 2008 N.Y. Misc. Lexis 6890 (Cattaraugus Co. Sup. Ct. Misc.).

Disciplinary Evidence - Admissibility/In General

     California appeals panel affirms an eight-hour reduction in pay of an officer for failing to inform her supervisors of a conversation in which her husband, also an officer, admitted that he used and stole methamphetamine. The marital communications privilege does not apply to non-criminal administrative investigations and hearings -- citing Pasadena POA. v. Pasadena, 51 Cal.3d 564, 578 (1990) and Lybarger v. Los Angeles, 40 Cal.3d 822, 827, 710 P.2d 329 (1985). Riverside County Sheriff’s Dept. v. Zigman, #E043187, 2008 Cal. App. Lexis 2459 (4th Dist.).

Disciplinary Hearings - Tenured/General

     Sixth Circuit rejects a due process attack on an internal disciplinary hearing.  Three women jailers were accused of distributing drugs to inmates, and were advised that they could provide written witness statements, evidence or materials that relate to any defense they might have. Each of them failed to make any statements or to present any evidence in their defense. “There simply is no indication that the ... hearings did not comport with the basic requirements of procedural due process.” Jackson v. Shelby County Government, #07-6356, 2008 U.S. App. Lexis 24045, Pacer Doc. 00612702758 (Unpub. 6th Cir.).

Disciplinary Interviews & Compelled Reports
- Criminal Investigations and Immunity

****Editor's Case Alert****

     California Supreme Court overturns the appellate decision in Spielbauer. All seven justices agree that a public employee can be required to answer questions – even if the answers are incriminating. A public employee has no right to require a court or prosecutor to grant immunity from prosecution as a condition for cooperating in an internal affairs interview. “The Constitution affords a public employee no right to refuse to account for his or her job performance, or to avoid dismissal as punishment for such a refusal. It simply forbids use of the compelled statements, or the fruits thereof, in a criminal prosecution against the employee.” Spielbauer v. Co. of Santa Clara, #S150402, 2009 Cal. Lexis 1010, 2009 WL 291191, 09 C.D.O.S. 1578.

Disciplinary Offenses – Insubordination

      An officer continued to secretly investigate a business owner for molesting the daughter of the officer’s paramour, after he had been given a direct order by the chief of police not to do so.  The officer lacked impartiality, and his termination for disobedience to a direct order was justified. Longton v. Vil. of Corinth, #504768, 2008 NY Slip Op 1009, 2008 N.Y. App. Div. Lexis 9799 (3rd Dept.).

Disciplinary Procedures - Delays & Time Limits

     Appellate court denies relief to an ex LAPD officer who was charged a year and 13 days after discovering his misconduct. The one-year limitation in the city charter was extended by the months-long criminal investigation. Lucio v. City of Los Angeles, #B201511, 2008 Cal. App. Lexis 2460 (2nd Dist).

Disciplinary Punishment - In General

     Arbitrator sustains disciplinary action against a city worker who downloaded and printed racial and ethnic jokes while on duty, but the city’s suspension of 20 work-days is reduced to 5 days, because he did not intend to distribute the written matter but inadvertently failed to remove four pages that had jammed in a copier. “His luck may eventually run out, and stupidity will not be a defense.” City of Fort Lauderdale and Teamsters L-769, 125 LA (BNA) 1249 (Abrams, 2008).

     Arbitrator sustains the termination of a private sector chemical worker who brought a Taser® to work and used it for horseplay in a break room. Zeon Chemicals and UFCW L-72D, 125 LA (BNA) 1281, FMCS Case #080729/58162-A (Heekin, 2008).

Discovery, Publicity and Media Rights

     After a former town employee confidentially settled her claim of age discrimination, a newspaper article reported that she received $40,000. Her suit against the city must be dismissed. There was no evidence that the publicity affected her employment opportunities or business prospects. Boland v. Town of Newington, #07-3310-cv, 2008 U.S. App. Lexis 25345 (2nd Cir.).

FLSA - Overtime - in General

     In a case where over 15,000 NYPD officers claimed that the city violated FLSA overtime provisions involving millions of dollars in damages, the court rules that management could “limit the availability of future overtime to officers who consistently choose cash compensation for mandatory overtime. An officer must therefore decide whether he or she wishes to have greater future overtime opportunities or whether the officer prefers to be compensated in cash for the overtime he or she has already worked.” Scott v. City of New York, 2008 U.S. Dist. Lexis 94075 (S.D.N.Y.).

First Amendment Related

     Seventh Circuit overturns a $240,000 verdict awarded to a Cook County Sheriff’s employee. Filing a police report is not a matter of public concern, and an “internal complaint ... is an obvious form of speech made pursuant to official duties under the Garcetti standard; it would require mental gymnastics to see it otherwise.” Houskins v. Sheahan, #06-2283, 2008 U.S. App. Lexis 24158 (7th Cir.)

Handicap/ Abilities Discrimination- Specific Disabilities

     A county reasonably accommodated a sheriff’s dispatcher who suffers from a blood disease called antiphospholidipid antibody syndrome. Wilson v. County of Orange, #G039733, 2009 Cal. App. Lexis 12 (4th Dist.).

Heart Problems

     Appellate court confirms a Human Rights Division decision favoring a corrections officer who was physically able to return to full duty after his heart attack. Although management’s physician concluded that the officer could not perform his duties due to the possibility of a physical confrontation with an inmate, the risk was too speculative and hypothetical in nature. N.Y. State Dept. of Corr. Serv. v. N.Y. State Div. of Human Rights (Rice), #504729, 2008 NY Slip Op 9517, 2008 N.Y. App. Div. Lexis 9201 (3rd Dept.).

Inefficiency, Performance Standards, Negligence and Incompetence

     In a termination appeal, a Chinese employee did not show that he was entitled to an interpreter, and management had just cause to remove him for insubordination and unsatisfactory work performance. Wei v. State Civil Service Cmsn., #521 C.D. 2008, 2008 Pa. Commw. Lexis 583.

Minimum Staffing Requirements

     Arbitrator orders a county to pay $599,167 in overtime to fire captains and lieutenants who would have been assigned to work overtime in order to meet a contractual staffing requirement of a minimum of 24 fire rescue officers per shift. Broward County and Prof. Paramedics & F/F, IAFF L-3333, FMCS Case # 05/50342, 125 LA (BNA) 1323 (Hoffman, 2008).

Political Activity/Patronage Employment

     Fifth Circuit rejects the wrongful termination claim of a criminal investigator who was fired immediately after announcing his intent to run for sheriff. The D.A legitimately terminated the plaintiff because he reasonably feared disruptive tension between the sheriff’s office and the D.A.’s office. James v. Mellen, #08-60285, #08-60285, 2008 U.S. App. Lexis 25311 (5th Cir.).

Promotional Rights, Procedures Performance Appraisals

     The fact that Pennsylvania state law allows agencies to hire candidates using the “rule of three” does not allow management to adopt that system to fill a captain vacancy. The agency was obligated to appoint the top-scoring candidate. Bor. of Wilkinsburg v. Colella, #173 C.D. 2008, 2008 Pa. Commw. Lexis 588

Retirement Rights and Benefits

     Employees who were participating in a DROP program were bound by a new bargaining agreement that could reduce their retirement health benefits. Benefits were not frozen when they elected the DROP option. Millcreek Twp. Police Assn. v. Millcreek Twp., #433 C.D. 2008, 2008 Pa. Commw. Lexis 577.

     Pay calculations for Pennsylvania police officer, using the last month’s earnings, resulted in an inequity because overtime hours earned during the last month increased their benefits -- but this method was not available for firefighters or other city employees who worked overtime during their last month. Such a calculation process created uncertainty in predicting pension fund needs, whereas averaging the last 12 months is a reasonable and appropriate construction of pension laws. Gontarchick v. City of Pottsville, #176 C.D. 2008, 2008 Pa. Commw. Lexis 623.

     Appellate court rejects an appeal where permanent disability benefits were denied. The Retirement System’s medical expert provided testimony that sufficiently contradicted the claimant’s medical evidence. “The Comptroller is vested with the exclusive authority to weigh the testimony offered by medical experts and to credit the opinion of one expert over that of another.” Collins v. DiNapoli, #504927, 2008 N.Y. App. Div. Lexis 9529 (3rd Dept.).

Sexual Harassment - Verdicts, Settlements & Indemnity

     Five-judge appellate panel upholds an award to a woman corrections officer that complained of sexual harassment and retaliation, but reduces her recovery from $850,000 to $200,000. N.Y. State Dept. of Corr. Serv. v. N.Y. State Div. of Human Rights (Humig), #504007, 2008 NY Slip Op 6246, 53 A.D.3d 823, 861 N.Y. Supp.2d 494, 2008 N.Y. App. Div. Lexis 7594 (3rd Dept.).

Smoking Rights/Restrictions & Air Quality Claims

     GSA tightens its smoking ban in federal facilities; the ban encompasses all interior space owned, rented or leased by the executive branch, smoking in courtyards and within 25 feet of doorways or air-intake ducts in the outdoors. Previously designated interior smoking areas are to be closed during a six-month phase-in period. Protecting Federal Employees and the Public From Exposure to Tobacco Smoke in the Federal Workplace, 73 (246) Federal Register 78360-61, Doc. E8-30377 (12/22/2008).

Untruthfulness & Resume Fraud

     Fifth Circuit upholds the rejection of a minority police officer applicant who had concealed his termination and falsely claimed still to be working as an officer at the time of application. Smart v. Geren, #08-50448, 2008 U.S. App. Lexis 24995 (Unpub. 6th Cir.).

Whistleblower Requirements and Protection

     Federal court dismisses §1983 damages claims brought by a whistle-blowing state corrections employee against the DoC. The 11th amendment bars monetary claims, but he could proceed on his complaint seeking declaratory and injunctive relief. Murray v. N.Y. Dept. of Corr. Serv., #08-CV-6383, 2008 U.S. Dist. Lexis 93131 (W.D.N.Y.).

Workers’ Compensation - Claim Validity

     Although there were criminal provisions relating to a false injury claim filed by a N.Y. volunteer firefighter, there was no provision for civil penalties in the law. Giello v. Providence Fire Dist. (W.C. Board), #505115, 2008 NY Slip Op 10098, 2008 N.Y. App. Div. Lexis 9819 (3rd Dept.).

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RESOURCES

     Firefighter safety: NIOSH draft document #141: Preventing Deaths and Injuries of Fire Fighters When Fighting Fires in Unoccupied Structures, 73 (246) Fed. Reg. 78365 (12/22/2008).

Reference:

     • Abbreviations of Law Reports, laws and agencies used in our publications.
     • AELE's list of recently noted employment law resources.  
     • Discrimination Laws plus EEOC Regulations and Policy Guidance