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Attorneys’ Fees, Sanctions and Legal Defense Rights

     Police chief awarded attorney’s fees for defending a baseless lawsuit brought by a rival candidate for the police chief position. Fox v. Vice, #08-31135, 594 F.3d 423, 2010 U.S. App. Lexis 1171 (5th Cir.).

Civil Service

     As a creature of statute, a Civil Service Commission possesses only those powers conferred upon it by law. “Any authority it exercises must find its source within the law pursuant to which it was created, and any action or decision taken by it in excess of or contrary to its authority is void.” Genius v. County of Cook, 1-08-3277, 2010 Ill. App. Lexis 110 (1st Dist.).

Criminal Liability

     Officers’ use of force reports and I-A statements could not be subpoenaed by a state prosecutor who charged the officers with official misconduct. People v. Smith, #3-09-0524, 2010 Ill. App. Lexis 283 (3rd Dist.).

FLSA - Administrative & Executive Exemptions

     Port Authority helicopter pilots are not exempt from overtime pay provisions. Pignataro v. Port Auth. of NY-NJ, #08-3605, 593 F.3d 265, 2010 U.S. App. Lexis 1840 (3rd Cir.).

FLSA - 7K Exemption

    Cross-commissioned fire investigators properly raised a claim for denied overtime. “For those employees who perform both fire protection and law enforcement activities, the applicable standard is the one which applies to the activity in which the employee spends the majority of work time during the work period.” §553.213(b). Cremeens v. City of Montgomery, #09-15633, 2010 U.S. App. Lexis 7028 (11th Cir.).

Firearms - Restrictions on Wearing

     Federal appellate panel upholds an arbitration award that terminated a federal corrections officer who was convicted of the misdemeanor crime of domestic violence; it is illegal for him to possess a firearm. Allen v. Dept. of Justice, #2009-3240, 2010 U.S. App. Lexis 405 (Unpub. Fed. Cir.).

First Amendment Related

     The various complaints of two police sergeants against their lieutenant were not entitled to First Amendment protection. Poor interpersonal relationships among coworkers are not matters of public concern. “To transform every workplace squabble ... would be to trivialize the great principles of free expression the First Amendment embodies.” Desrochers v. City of San Bernardino, #07-56773, 572 F.3d 703, 29 IER Cases (BNA) 645 (9th Cir.).

Fraternization with Coworkers - Prohibitions on

     Rejecting a freedom of association argument, the 11th Circuit dismisses the suit of a demoted firefighter who had an extramarital affair with one of his subordinates. The relationship between supervisors and subordinates is critical to the effective functioning of the fire department. Starling v. Bd. of Co. Cmsnrs., #09-11168, 2010 U.S. App. Lexis 7091 (11th Cir.).

Injuries to Employees

     A city police officer who was accidentally shot by a county sheriff’s deputy during a joint operation is denied recovery in his negligence claim. The plaintiff was effectively a county employee for purposes of the joint operation, and his claim was barred by law. Connery v. County of Albany, #508265, 2010 NY Slip Op 2713, 2010 N. Y. App. Div. Lexis 2634 (3rd Dept.).

     A firefighter who suffered a catastrophic injury during an emergency training exercise was entitled to receive continuing health insurance benefits after he was on line-of-duty disability. The Illinois Public Safety Employee Benefits Act does not differentiate between actual and simulated emergencies; 820 ILCS 320/10(b). The plaintiff was told that a fellow firefighter was in urgent need of rescue and that he should respond as if it were a real emergency. Lemmenes v. Orland Fire Prot. Dist., #1-09-1133, 2010 Ill. App. Lexis 257 and 2010 Ill. App. Lexis 30 (1st Dist.).

• Editor’s Note: The panel wrote, “Finally, we are aware of the recent majority holding in Gaffney v. Board of Trustees of Orland Fire Prot. Dist., 921 N.E.2d 778 (2009), an opinion issued by the 6th Division of this court. That opinion, issued shortly before the case at bar appears to reach the opposite conclusion. As noted, we believe the requirements of section 10(b) of the Act mandate an analysis of the facts of each case. The facts of the instant case do not lend themselves to the holding reached by the majority in Gaffney and we decline to follow that holding. We note that there was a strongly worded dissent in Gaffney in which the dissenting judge rejects the extremely narrow construction of section 10(b) of the Act …”

Last Chance Agreements

     DHS did not breach a last chance agreement in refusing to rehire the plaintiff as a law enforcement officer. Although she was eligible for reappointment a year after her removal, management was not required to do so, or to ignore her conviction for obtaining money under false pretenses. Slattery v. Dept. of Justice, #2009-3095, 2010 U.S. App. Lexis 199 (Fed. Cir.). 

Military Leave

     Summary judgment is unwarranted where there is a factual dispute over whether a police officer was required to take a vacation day while on military duty. Conners v. Billerica Police, #08-11565, 2010 U.S. Dist. Lexis 3515 (D. Mass.).

Psychological Exams and Standards - Fitness for Continued Duty

     Eleventh Circuit rejects an Asian’s bias claim. He was found psychologically unfit for duty and he failed to show that other races were treated more favorably.  Sridej v. Brown, #No. 09-12314, 2010 U.S. App. Lexis 623 (Unpub. 11th Cir.).

Race Discrimination - In General

     The act of decommissioning a black corrections officer and transferring him while conducting an internal investigation is not a constructive discharge.  The plaintiff “was one of many suspects in a wide-ranging investigation of custodial sexual misconduct. He has not shown that improper motivations – as opposed to corroborated evidence of wrongdoing – caused the defendants to take action against him.” Swearnigen-El v. Cook County Sheriff’s Dept., #09-2709, 2010 U.S. App. Lexis 8379 (7th Cir.).

     Federal judge orders the City of New York to take several corrective actions to reverse years of intentional discrimination against minority applicants to the Fire Department.  7,400 minority applicants will have an opportunity to apply for compensation and 293 applicants must be given priority hiring status and retroactive seniority. The ruling is based on discriminatory testing in 1999 and 2002. United States v. City of New York, #07-CV-2067, PACER Doc. 385, 2010 U.S. Dist. Lexis 2506, 108 FEP Cases (BNA) 415 (E.D.N.Y.). 

     Seventh Circuit rejects a race claim brought by a former corrections officer. The plaintiff, who is African-American, was prosecuted (and acquitted) of sexual misconduct with a current inmate. A white officer was not prosecuted for intimate relations with a former inmate.  Moreover, the fact that the plaintiff was acquitted of the criminal charges does not demonstrate a pretextual motive, because the state had a higher burden of proof at trial than was required before the merit board. Egonmwan v. Cook County Sheriff’s Dept., #09-2764, 2010 U.S. App. Lexis 8376 (7th Cir.).

Race or Sex Discrimination - Disparate Discipline

     Federal court rejects a disparate discipline suit brought by a woman employee. Management had a legitimate, nondiscriminatory reason for imposing discipline. Dempsey v. Delaware Dept. Pub. Sfty., #08-4406, 2009 U.S. App. Lexis 28710 (Unpub. D. Del.).

Reductions in Force

     N.Y. appellate court enforces a no-layoffs clause in a firefighters’ contract. Village of Johnson City and Firefighters Assn. L-921, #507278, 2010 NY Slip Op 2890, 2010 N.Y. App. Div. Lexis 2825 (3rd Dept.).

Retaliatory Personnel Action

     Citing Eng v. Cooley, 552 F.3d 1062 and Robinson v. York, 566 F.3d 817, 822 (9th Cir. 2009) a Ninth Circuit panel noted that in retaliation lawsuits, the issues are:

(1)   whether the employee spoke on a matter of public concern;
(2)   whether the employee spoke as a private citizen or as a public employee;
(3)   whether the employee’s protected speech was a substantial or motivating factor in the adverse employment action;
(4)   whether the agency had an adequate justification for treating the employee differently from other members of the general public; and
(5)   whether the agency would have taken the adverse employment action absent the protected speech.

The District Court properly dismissed the complaint because the officers were not acting as citizens.

“Testifying before a grand jury charged with investigating corruption is one part of an officer’s job. If a police officer were subpoenaed to testify, he or she would have two choices. One choice would be to testify before the grand jury. In that event, the officer could lawfully be fired in retaliation for his or her testimony. The other choice would be to refuse to testify. In that event, the officer would face contempt (and possibly other adverse consequences) for failing to comply with a subpoena.” Huppert v. City of Pittsburg, #06-17362, 574 F.3d 696, 29 IER Cases (BNA) 911 (9th Cir.).

     Seventh Circuit rejects a retaliation claim brought by a state police officer who complained of lead contamination in the firing range where he was stationed. The court found that his complaints, sent up the chain of command, were not protected by the First Amendment. His internal grievance was on a matter of private interest and did not raise a matter of public concern. Bivens v. Trent, #08-2256, 2010 U.S. App. Lexis 215 (7th Cir.).

     “We are not suggesting that Garcetti applies every time a police officer has conversations with a prosecutor. What constitutes official duties will necessarily vary with the circumstances including the rank of the officer, his areas of responsibility and the nature of the conversations ...” Chamberlin v. Town of Stoughton, #08-1289, 2010 U.S. App. Lexis 6783 (1st Cir.).

     Third Circuit rejects a retaliation claim of a civilian state police employee who was not rehired because of alleged sick leave abuse. Her First Amendment claim failed because she her speech was not a matter of public concern. Conard v. Penn. State Police, #09-1837, 2010 U.S. App. Lexis 532 (Unpub. 3rd Cir.).

Retirement Rights and Benefits

     Pennsylvania appellate court rejects the pension claim of a former public employee who was convicted of attempted obstruction and attempted tampering with records. Because the crimes of attempt and conspiracy are subject to the same criminal sentences as the underlying substantive crimes, it logically follows that they would also be subject to the same forfeiture consequences. Luzerne Co. Ret. Bd. v. Seacrist, #217 C.D. 2009, 2010 Pa. Commw. Lexis 23.

Suicide Related

     U. S. Army issues guidance for investigating officers who examine the suspected suicide of a soldier. Army Directive 2010-01: Conduct of AR 15-6 Investigations into Suspected Suicides (Mar. 2010).

Telephone & Pager Monitoring / Audio & Video Taping

     After more than 15 years, the federal government pays $3 million to a former DEA agent to drop his suit for privacy violations. The plaintiff was stationed in Burma, and claimed that the CIA engaged in unlawful surveillance of his telephone conversations. “Now this Court is called upon to approve a $ 3,000,000 payment to an individual plaintiff by the United States, and again it does not appear that any government officials have been held accountable for this loss to the taxpayer. This is troubling to the Court.”  Horn v. Huddle, #94-1756, 2010 U.S. Dist. Lexis 30626 (D.D.C. 2010).

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CROSS REFERENCES
Disciplinary Appeals - see: Civil Service
Disciplinary Interviews & Compelled Reports - see: Criminal Liability
Disciplinary Offenses - see: Firearms
First Amendment Related - see: Fraternization
Privacy Rights - see: Telephone Monitoring

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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