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Alcohol Abuse, Testing & Rehabilitation

     Seventh Circuit upholds a district court ruling that rejected the ADA claim of a police chief who was fired for DUI. The Act does not protect unlawful conduct, even if the employee is an alcoholic. Budde v. Kane County, #09-2040, 2010 U.S. App. Lexis 4532 (7th Cir.).

Criminal Liability

     Warden of the Federal Correctional Center in Victorville, CA, is indicted for lying to Office of Inspector General special agents in connection with an investigation into Internet postings that disclosed confidential government information. U.S. v. Holencik, #5:10-cr-00017, Indictment (C.D. Cal. 2010).  News release

     Even though a postal worker was acquitted of theft charges, an appellate court affirms his conviction for making false statements to postal inspectors. United States v. Algee, #08-3196, 2008 U.S. App. Lexis 6007, 2010 FED App. 0081P (6th Cir.).

Death Benefits

     Widow of a Chicago police officer who died only 12 days after they were married is not entitled to annuity benefits. In Illinois, the surviving spouse must be married at least one year. Kaczka v. Retirement Board, #1-09-1283, 2010 Ill. App. Lexis 160.

Demotions

     Ohio court rescinds the demotion of a police captain to lieutenant. The city failed to prove the letter of demotion was served on the appellant, thus violating his Due Process rights. Deem v. Fairview Park, #93135, 2009 Ohio 6314, 2009 Ohio App. Lexis 5300, 30 IER Cases (BNA) 191 (8th Dist.).

Disciplinary Appeals & Challenges - In General

     The withdrawal of a federal civil service appeal is final, and absent extraordinary facts, it cannot be reinstated once it has been withdrawn.  However, the withdrawal must be clearly stated and unequivocal. Rosso v. Dept. of Homeland Security, #CH-0752-09-0698-I-1, 2010 MSPB 31, 2010 MSPB Lexis 931 (MSPB 2010).

Disciplinary Offenses - In General

     Appellate panel affirms the termination of a Naval Criminal Investigative Service employee who ran a criminal history inquiry on her husband for her personal benefit. Because management made a credible showing that the employee was not a viable candidate for rehabilitation there was no basis for overturning the Merit Systems Protection Board’s decision. Valdez v. Dept. of the Navy, #2010-3035, 2010 U.S. App. Lexis 5598 (Unpub. Fed. Cir.).

Disciplinary Punishment - In General

     Where all but one of the charges are dismissed, the decision to terminate a corrections officer is affirmed, where the warden testified that separation would have occurred anyway, because of the seriousness of the charge.  Davis v. Dept. of Justice, #2008-3202, 2010 U.S. App. Lexis 4408 (Fed. Cir.).

Discovery, Publicity and Media Rights

     Florida appellate court denies the release of law enforcement videos to an adult club owner, made under the state’s public records law, unless the faces of undercover officers are obscured. Rameses v. Demings, #5D09-208, 2010 Fla. App. Lexis 2867.

Drug Screening and Specimen Testing

     A police officer who was accused of drug trafficking was subjected to a hair analysis for illicit drugs and he tested positive for heroin, using gas chromatography-mass spectrometry. Hair samples from eleven other police officers in the same unit were obtained, and those tested negative. The comparative tests demonstrate that passive contamination does not occur for persons dealing regularly with drugs, using minimal caution and hygiene, and that the measured concentrations in the accused officer was due to drug abuse. Heroin markers in hair of a narcotic police officer: Active or passive exposure?  196 (1) Forensic Science International 128-129 (20 Mar. 2010).

E-Mail/Internet - Legal Issues   

     New Jersey Supreme Court holds, 7-0, that an employee can expect privacy and confidentiality in e-mails with his or her attorney, which are sent and received through a personal, password-protected, web-based e-mail account using an employer-issued computer. The employer’s policy failed to warn employees that the contents of personal, web-based e-mails are stored on a hard drive and can be forensically retrieved and read. Stengart v. Loving Care Agency, #A-16-09, 2010 N.J. Lexis 241.

FLSA - Overtime - in General

     There is a three-part inquiry related to compensation for “donning and doffing.” The first is whether the activity constitutes “work”; the second is whether the activity is an “integral and indispensable” duty; and third, whether the activity is de minimis. Because Mesa police officers have the option and ability to don and doff their uniforms and gear at home, the specific activity of donning and doffing uniforms and gear at the workplace is not compensable. One judge of the panel of three concurred in the judgment only and dissented in part. Bamonte v. City of Mesa, #08-16206, 2010 U.S. App. Lexis 6188 (9th Cir.).

FLSA - 7K Exemption

     First Circuit holds that a public agency is not required notify police officers it is adopting a work period to qualify for a 7K exemption; 29 U.S.C. § 207(k). Calvao v. Town of Framingham, #09-1648, 2010 U.S. App. Lexis 5515, 15 WH Cases 2d (BNA) 1665 (1st Cir.).

Free Speech

     First Circuit upholds a 15-day disciplinary suspension of a fire chief for public statements he made at the scene of a fatal fire. He was speaking in his official capacity and not as a citizen when he addressed budgetary and staffing shortfalls in the department. Foley v. Town of Randolph, #09-1558, 2010 U.S. App. Lexis 5020 (1st Cir.).

Hairstyle and Appearance Regulations & Discrimination

     Orthodox Jewish police detective receives $350,000 from the Las Vegas Police to settle a lawsuit because he was prohibited from having a beard and wearing a yarmulke. Riback v. Las Vegas Metro Police Dept., #2:07-cv-01152 (D. Nev.). Prior decision at 2008 WL 321.

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Appellate panel rebuffs the ADA claims of a military veteran who was rejected for a bailiff position by a Florida sheriff’s office. Although the plaintiff suffered from post traumatic stress disorder, he failed to show that his impairment substantially limited a major life activity. Loperena v. Scott, #09-12839, 2009 U.S. App. Lexis 26425 (11th Cir.).

Health Insurance & Benefits

     New, national healthcare law provides that adults with pre-existing conditions will be eligible to join a temporary high-risk pool, which will be replaced by a health care exchange in 2014. Insurance companies will face restrictions on annual caps, which will be prohibited by 2014. Insurers can no longer drop policyholders when they get sick. A Senate amendment was signed in the same week. Many other provisions will not take effect until 2011 to 2017. Patient Protection and Affordable Care Act, Pub. L. No. 111-148 (2010).

Injuries to Employees

     Federal judge rejects a $657.5 million proposed settlement agreement between “Ground Zero” workers and New York City, which would compensate more than 9,000 first-responder claimants with respiratory conditions. The court concluded that the plaintiffs would be inadequately compensated. The amounts would have varied according to the severity of their illnesses and the level of their exposure to contaminants. In Re: World Trade Center Disaster Site Litigation, #1:21-mc-100 (S.D.N.Y.).

• Also see, World Trade Center Litigation Settlement Process Agreement (2010).

Product Liability

     Canadian firm and its U.S. subsidiary agree to a $4 million settlement in an action alleging defective Zylon ballistics vests.  U. S. v. Lincoln Fabrics.  DoJ News Release

Race and Sex Discrimination

     Fourth Circuit reinstates a bias action brought by a black female firefighter who was not promoted to captain. She twice had passed both a written test and an experiential assessment, had positive performance reviews, had served as an acting captain on numerous occasions without incident and had administrative and training experience. Because management gave shifting and inconsistent reasons for her rejection, it raised questions about whether the failure to promote her was a mere pretext for discrimination. Wesley v. Arlington Co., #08-2063, 2009 U.S. App. Lexis 26554, 107 FEP Cases (BNA) 1732 (Unpub. 4th Cir.).

Reductions in Force

     A mandatory reduction in the total hours worked by public employees is the same whether achieved by a reduction in the number of hours worked imposed on all employees or a layoff of only some employees. California Attorneys v. Schwarzenegger, #A125292, 2008 Cal. App. Lexis 355 (1st Dist.).

Religious Discrimination

     Eighth Circuit upholds an employer’s safety policy that prohibits headwear and loose-fitting clothing for workers at a printing plant. The EEOC represented a Muslim woman who refused to remove her khimar. The employer had a “legitimate, nondiscriminatory ... facially neutral, safety-driven dress policy prohibiting all employees ... from wearing loose clothing or headwear of any kind.” EEOC v. Kelly Services, #08-3880, 2010 U.S. App. Lexis 6173 (8th Cir.).

Retirement Rights and Benefits

     Illinois Supreme Court rules that a convicted felon who earned pension credits from multiple public agencies or offices, forfeits all pension rights, even though he was not convicted for acts while serving in prior capacities. “As the victims of Ryan’s crimes, the taxpayers of the State of Illinois are under no obligation to now fund his retirement.”  Ryan v. Board of Trustees, #108184, 2010 Ill. Lexis 273.

Stress Related Claims and Defenses - Disciplinary Action - Punishment

     Appellate court rejects the appeal of a state trooper who fled from two marked state police vehicles during a high speed pursuit, left threatening messages on an answering machine of the mother of one of his children, and caused a lengthy standoff with police and rescue personnel after he barricaded himself in his residence. The five-judge panel declined to hold these were excusable lapses in judgment, induced by stress. Bassett v. Fenton, #506506, 2009 NY Slip Op 9338, 68 A.D.3d 1385, 891 N.Y.S.2d 195, 2009 N.Y. App. Div. Lexis 9147 (3d Dept.).

Untruthfulness & Resume Fraud - Lying to superiors

     Rejecting a defense that memories are inaccurate, an Ohio arbitrator upholds the termination of a police officer accused of lying to a citizen and to his superiors. “... discharge is an acceptable penalty in light of the higher standard expected of officers of the law,” and the grievant previously was counseled about untruthfulness.  FOP Ohio and City of Springboro, FMCS #09-02052 (Nowell, 2010).

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     • Federal Efforts to Address the Threat of Bioterrorism: Selected Issues for Congress, Congressional Research Service (March 2010).

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CROSS REFERENCES
Disciplinary Punishment – see: Stress-Related Defenses


Disciplinary Punishment – Untruthfulness
E-Mail/Internet – see: Criminal Liability
Privacy Rights – see: E-mail/Internet
Uniforms & Clothing – see: Religious Discrimination
Untruthfulness – see: Criminal Liability

AELE Seminars:

Lethal and Less Lethal Force
Oct. 11-13, 2010 - Las Vegas

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

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