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Alcohol Abuse, Testing & Rehabilitation

     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).

Arbitration Punishment Awards - Right of Courts to Interfere

     Overturning an arbitrator, a deputy sheriff was lawfully removed during her probationary period and returned to her previous job as a dispatcher. The bargaining agreement precluded her from filing a grievance. Donini v. Frat. Order of Police, #08CA3251, 2009 Ohio 5810, 2009 Ohio App. Lexis 4889, 187 LRRM (BNA) 2572 (4th Dist.).

     Ohio appellate court concludes that an arbitrator was within his rights to conclude that a one-day suspension was arbitrable and the trial court correctly denied a motion by the sheriff's office to set aside the arbitration award. Marion Co. Sheriff's Office v. FOP Ohio Labor Council, #9-09-20, 2009 Ohio 6159, 2009 Ohio App. Lexis 5164 (3rd Dist.).

Collective Bargaining - Duty to Bargain

     In a failure to bargain charge, the New York Public Employment Relations Board overturns a police chief's order prohibiting the consumption of alcohol during the eight hours preceding duty periods. "… we conclude that the ... evidence clearly demonstrates that the City's prohibition against police officers consuming intoxicating beverages prior to reporting for duty is mission-related. However, we also concur... that there is no evidence ... to support the City's claim that the new eight-hour rule was necessary, or that the City faced a new or acute problem requiring a more stringent rule." N.Y. State Law Enf. Officers Union C-82, AFSCME L-2841 and City of Albany, PERB #U-27105, 2009 NYPER Lexis 33 (2009).

Criminal Liability

     Ohio overturns the conviction of a public employee who was prosecuted for DUI. Management could order a breath test, but the results are not admissible in a criminal prosecution. "... the police obtained the results of the Breathalyzer and blood tests in violation of appellant's Fourth Amendment right against illegal search and seizure." State of Ohio v. Groszewski, 2009 Ohio 4062, 183 Ohio App.3d 718 (6th Dist.).

Damages, Remedies and Enforcement of Settlements

     Federal merit board rejects an attempt to set aside a settlement agreement. The employee's assertion that a medical condition prevented him from having the mental capacity necessary to enter into a valid settlement agreement did not meet the heavy burden of proof required or outweigh the sworn statements of the agency's witnesses present during the negotiations. Parks v. U.S. Postal Service, #AT-0752-06-0166-C-1, 2010 M.S.P.B. 6, 2010 MSPB Lexis 164 (MSPB 2010).

Demotions

     An involuntary transfer of a paramedic to a firefighter assignment was not a demotion, because there was no reduction in pay. Castello v. Seattle Fire Dept., #09-010 (Seattle PSCSC, 2010).

Disability Rights and Benefits - Line of duty related / disputed

     Illinois firefighter who suffered a catastrophic injury during an emergency training exercise was entitled to receive continuing health insurance and line-of-duty disability benefits, after he was unable to return to work. The applicable state statute does not differentiate between "actual" and "simulated" emergencies, and the claimant was told that a fellow firefighter was in urgent need of rescue and that he was to respond as if it were real emergency. Lemmenes v. Orland Fire Prot. Dist., #1-09-1133, 2010 Ill. App. Lexis 30 (1st Dist.).

Disability Rights and Benefits - Benefit disputes

     In a case where an Illinois firefighter withdraws an application for line-of-duty disability benefits and then seeks a "not-on-duty" disability pension, the benefits should start as of the day he filed the application for the lesser pension that he was awarded, and not the earlier date. Philpott v. Bd. of Trustees of Charleston Firefighters' Pension Fund, #4-09-0280, 2010 Ill. App. Lexis 16 (4th Dist. 2010).

Disciplinary Discovery

     In a 5-2 holding, the Pennsylvania Supreme Court overturns an arbitrator's ruling reinstating a terminated police officer because the city was late in complying with a discovery request. A court or tribunal, when determining possible sanctions to a party, should consider (1) the prejudice, if any, endured by the non-offending party and the ability of the opposing party to cure any prejudice; (2) the non-complying party's willfulness or bad faith in failing to provide the requested discovery materials; (3) the importance of the excluded evidence in light of the failure to provide the discovery; and (4) the number of discovery violations by the offending party. City of Phila. v. FOP L-5 (Breary), #38 EAP 2007, 2009 Pa. Lexis 2792.

Disciplinary Offenses/Punishment - Sexual Misconduct

     On remand from the Court of Appeals, the Merit Systems Protection Board finds that the FBI had the authority to investigate and discipline a special agent and that there is a nexus between some of the charged conduct and the efficiency of the service. There was a reasonable possibility that the agent's actions of videotaping his sexual encounters with three women without their consent, two of whom worked for the FBI, negatively impacted the agency's ability to perform its responsibilities and violated an internal regulation. Doe v. Dept. of Justice, #CH-0752-04-0620 -M-1, 2010 MSPB 16, 2010 MSPB Lexis 241 (MSPB 2010), on remand from #2008-3139, 565 F.3d 1375 (Fed. Cir. 2009).

Disciplinary Punishment - Disparate Treatment

     Seattle's Public Safety Civil Service Commission overturns the termination of a police officer for untruthfulness; penalty reduced to a 30-day disciplinary suspension." There is evidence that employees in past cases involving dishonesty either received no suspension of duties or only temporary suspension of duties. ... To date, no other employee has been terminated based on dishonesty." Werner v. Seattle Police Dept., #09-006 (Seattle PSCSC 2010).

Disciplinary Surveillance

     Fire inspectors who were fired, after a GPS device revealed that they were not performing their official duties, lose their lawsuit against the city. Although state law prohibits an employer from electronically monitoring an employee's activities without prior notice given, the Connecticut Supreme Court held that the statute did not create a right of an employee to sue for damages. Gerardi v. City of Bridgeport, #SC 18318, 294 Conn. 461, 2010 Conn. Lexis 2.

Discovery, Publicity and Media Rights

     Police union prevails on a FOIA request seeking disclosure of a survey conducted by a college class, administered to police officers, civilian employees, and residents of certain neighborhoods, assessing police performance and measuring job satisfaction. The survey was not exempt as an "audit." Rockford PBA, v. Morrissey, #2-09-0100, 2010 Ill. App. Lexis 42 (2nd Dist.).

Free Speech

     A public employee's motive "is not dispositive in determining whether his or her speech addresses a matter of public concern." Relying on the Garcetti decision, speech on a purely private matter, such as an employee's dissatisfaction with the conditions of his employment, does not pertain to a matter of public concern. Sousa v. Roque, #07-1892-cv, 578 F.3d 164, 2009 U.S. App. Lexis 18844, 29 IER Cases (BNA) 1042 (2d Cir.).

Handicap Laws / Abilities Discrimination - Accommodation - General

     A 6'10" former sergeant was not "disabled" under the ADA, and the Highway Patrol did not have to honor his request for an accommodation. He claimed that the installation of a protective cage and an overhead shotgun rack reduced the vehicle's headroom and prevented him from sitting in an upright position while on patrol. Quinn v. Ohio State Hwy. Patrol, #2007-05474, 2009 Ohio 6075, 2009 Ohio Misc. Lexis 289 (Ohio Ct. Cl. 2009).

Injuries to Employees

     Illinois Supreme Court holds that a statute cannot abolish the "Fireman's Rule retroactively. "A retroactive change in the law that imposes a new duty is ... a violation of the due process clause of the Illinois Constitution, and the legislature is without authority to enact such a law even if that is its express intention." In 2004 the Illinois legislature modified the harsh effects of the "Fireman's Rule" and clearly expressed an intent that the statute be given retroactive effect for claims that were pending at the time. 425 ILCS 25/9f (2004). Lazenby v. Mark's Construction, # 107192, 2010 Ill. Lexis 10 (2010).

National Security Issues and Security Clearances

     Third Circuit rejects an appeal filed by an Egyptian-American scientist who was fired from the U.S. Dept. of Energy after his security clearance was revoked for "sympathetic association with a saboteur, spy, terrorist, traitor ... espionage agent, or representative of a foreign nation whose interests are inimical to the United States." The District Court properly dismissed the case because the complaint failed to state a claim upon which relief could be granted. El-Ganayni v. U.S. Dept. of Energy, #08-4745, 2010 U.S. App. Lexis 548, 108 FEP Cases (BNA) 100 (3rd Cir. 2010).

Pay Disputes - In General

     New York Public Employment Relations Board judge dismisses an appeal relating to payments due a public employee. The charging party failed to appear at a status conference or provide reasons excusing his absence. Carroll and AFSCME L-870 and Patchogue-Medford, PERB #U-29075, 2009 NYPER Lexis 120.

Retaliatory Personnel Action

     A State Police officer, who discovered that he had elevated levels of lead in his blood due to contamination of the indoor firing range where he was assigned, filed a grievance. His complaint forced management to close the range for nearly nine months, resulting in unfavorable publicity. A subsequent retaliation suit, filed against his superiors, was unsuccessful. Under the 2006 Garcetti decision, his grievance was not protected by the First Amendment because it "was clearly related to and part of his official duties, and … he was not speaking as a private citizen." Bivens v. Trent, # 08-2256, 2010 U.S. App. Lexis 215 (7th Cir.).

     A divided Ninth Circuit panel rejects a Sec. 1983 speech-related retaliation claim filed by two police officers. Citing the 2006 Garcetti decision, "It is clear that in California a police officer's official duties include investigating corruption ..." The panel specifically declined to follow a Third Circuit decision, Reilly v. Atlantic City, #06-2591, 532 F.3d 216 (3d Cir. 2008). Huppert v. City of Pittsburg, #06-17362, 574 F.3d 696, 2009 U.S. App. Lexis 15970, 29 IER Cases (BNA) 91 (9th Cir.).

     Ninth Circuit, in a 2-1 holding, rejects a suit filed by two police detectives who claimed retaliation after they filed a grievance complaining about a lieutenant's attitude and demeanor. Reporting poor interpersonal relationships among coworkers is not a matter of public concern. Desrochers v. San Bernardino, #07-56773, 572 F.3d 703, 2009 U.S. App. Lexis 15400, 29 IER Cases (BNA) 645 (9th Cir.).

Unfair Labor Practice - in General

     A divided California appellate panel holds that a county did not violate labor laws by sending an informational e-mail in opposition to a voter initiative relating to binding arbitration of labor disputes involving deputy sheriffs and correctional officers. "Any expenditure in preparing and distributing the email with its attachment was minimal." DiQuisto v. County of Santa Clara, #H032345, 2010 Cal. App. Lexis 59 (6th Dist.).

Wages and Hours

     Superior court overturns Gov. Schwarzenegger's two-day per month furlough of state workers, as applied to correctional officers. As implemented, the executive order diminished their compensation without a corresponding decrease in work periods. Calif. Corr. POA v. Schwarzenegger, Alameda Co. Super. Ct. #09-441544.

Workers' Compensation - Claim Validity

     Illinois rules that injury benefit payments must continue, even if the claimant is fired for misconduct. "... when an employee who is entitled to receive workers' compensation benefits as a result of a work-related injury is later terminated for conduct unrelated to the injury, the employer's obligation to pay TTD workers' compensation benefits continues until the employee's medical condition has stabilized and he has reached maximum medical improvement." Interstate Scaffolding v. Illinois Workers' Compensation Cmsn., #107852, 2010 Ill. Lexis 12.

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Disaster relief:

     • Guide to Nongovernmental Organizations for the Military: A primer for the military about private, voluntary, and nongovernmental organizations operating in humanitarian emergencies globally.

Policing occupied territories:

     • Private Security Contractors in Iraq and Afghanistan: Legal Issues. Congressional Research Service (Dec. 22, 2009).

Reference:

     • Abbreviations of laws, law reports and agencies used in our publications.
     • AELE's list of employment law resources.  

Whistleblowers:

     • Report on Whistleblower Protection Enhancement Act of 2009, Senate Homeland Security and Governmental Affairs Committee, Report No. 111-101, Dec. 3, 2009.

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CROSS REFERENCES
Arbitration Procedures - see: Disciplinary Discovery
Disciplinary Evidence - see: Alcohol Testing
Probationary employment - see: Arbitration Awards/Courts
Reductions in Force - see: Wages and Hours

AELE Seminars:

Lethal and Less Lethal Force
Mar. 08-10, 2010 – Las Vegas
Oct. 11-13, 2010 - Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 13-15, 2010 – Las Vegas

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