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Arbitration Punishment Awards - Right of Courts to Interfere

     Pennsylvania appellate court upholds an arbitration award that set aside a 17-day suspension of an off-duty state trooper, following his arrest in Maryland. Those charges were dropped. Penn. State Police v. State Troopers' Assn., 1821 C.D. 2009, 2010 Pa. Commw. Lexis 188.

Attorneys' Fees, Sanctions and Legal Defense Rights

     Pennsylvania appellate court denies payment of legal defense costs of $107,385 and $178,156, sought by a former corporal and a former chemist who were sued for withholding exculpatory evidence in a murder investigation. The defendants purportedly acted maliciously and in bad faith, resulting in the 23-year imprisonment of the plaintiff. Balshy v. Penn. State Police, #99 C.D. 2009, 988 A.2d 81, 2010 Pa. Commw. Lexis 63.

Bargaining Unit Determinations

     Illinois police sergeants are "supervisors" even if they do not devote a preponderance of their time exercising their supervisory authority, and they should not be included in the same bargaining unit with subordinate officers. Vil. of Maryville v. Illinois Labor Rel. Bd., #5-08-0545, 2010 Ill. App. Lexis 687 (5th Dist.)

Death Benefits

     Appellate court reinstates a federal death benefit claim. A medical examiner purportedly falsified the cause of death of a Florida firefighter as due to "natural causes." A revised autopsy report speculates that the cause was smoke inhalation "either by itself or as a triggering agent for a heart attack or a cardiac arrhythmia." Moreover, the deceased had inhaled smoke during the fire, and his electrocardiogram was not consistent with a heart attack. Woodward v. Dept. of Justice, #2009-8004, 2010 U.S. App. Lexis 5300, 598 F.3d 1311 (Fed. Cir.).

Disability Rights and Benefits - Line of duty related/ disputed

     Divided appellate court panel denies a police officer's application for a line-of-duty disability pension. The claimant alleged a disabling injury during a baton training exercise. Three treating physicians described the claimant as not believable, and one noted a pre-existing neck injury. Kramarski v. Bd. of Tr. of Orland Park Police Pension Fund, #1-09-1557, 2010 Ill App. Lexis 654 (1st. Dist).

Disciplinary Punishment - In General

     Federal appellate board sustains the termination of a DoD civilian employee who misused Air Force letterhead to falsify a call to active duty in order to end a home lease. Ellis v. Dept. of Defense, #DE-0752 - 09-0439 - I-1, 2010 MSPB 141 (MSPB 2010).

Disciplinary Searches

     Fourth Circuit upholds a warrantless a search of an Army private's Microsoft Zune MP3 player, which led to his conviction for possession of child pornography. Drill sergeants were required to inventory cell phones and iPods to ensure that they have no graphic materials on them, such as pornography. Soldiers on military bases have diminished privacy expectations. U.S. v. Rendon, 09-4687, 2010 U.S. App. Lexis 12435, 607 F.3d 982 (4th Cir.).

Drug Abuse and Rehabilitation

     Oregon Supreme Court holds that employees who smoke marijuana to relieve pain or nausea can be fired for drug use even if they have a state-issued medical marijuana card. Laws requiring employers to accommodate disabled workers do not extend to medical marijuana use. Emerald Steel v. Bur. of Labor & Indus., #S056265, 2010 Ore. Lexis 272, 348 Ore. 159, 230 P.3d 518.

• Editor's Note: The U.S. Supreme Court has concluded that the federal Controlled Substances Act does not contain a "medical necessity" exception that permits the manufacture, distribution, or possession of marijuana for medical treatment. U.S. v. Oakland Coop., #00-151, 532 U.S. 483 at 49 (2001).

Handicap Laws / Abilities Discrimination - In General

     Justice Dept. issues revised ADA regulations implementing Title II and Title III. They include revised ADA design standards. See also, revisions to Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations.

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Emergency dispatcher was unfit for her position because of unipolar depression, poor concentration and insomnia, rather than "myths or stereotypes about being disabled." Wisbey v. City of Lincoln, 09-2100, 2010 U.S. App. Lexis 13684, 16 WH Cases2d (BNA) 493 (8th Cir.).

     Hearing (Audio) Impairment California county agrees to a consent decree, requiring the "hiring of a qualified sign language interpreter for a qualified applicant or employee with a hearing disability." Holder v. Co. of Ventura, #CV09-06413 (C.D. Calif. 2010).

National Security Issues

     Federal appeals panel sustains the separation of a defense dept. employee who lacked an active security clearance. There was no obligation that the employee be retained on paid leave or transferred to a non-sensitive position. Adams v. Dept. of Defense, #2010-3041, 2010 U.S. App. Lexis 7540 (Unpub. Fed. Cir.).

Privacy Rights

     Hospital security personnel did not violate the Fourth Amendment by searching employee lockers for missing implements. The locker inspections were not unreasonable and there was a low expectation of privacy. Narotzky LLC v. Natrona County Memorial Hospital, #09-8053, 2010 U.S. App. Lexis 12900 (10th Cir.).

Race: Reverse Discrimination

     Second Circuit rejects reverse discrimination claims in a New York fire dept. that was under a consent decree. Although African Americans made up 16.58% of the city's fire department there was evidence that African Americans made up 25.3% of the city's overall population. Vivenzio v. City of Syracuse, #08-2436, 2010 U.S. App. Lexis 13464, 109 FEP Cases (BNA) 1181 (2nd Cir.).

Reductions in Force

     Five-judge appellate panel concludes that a no-layoff clause in a bargaining agreement is not subject to any prohibition against arbitration. A New York municipal fire dept. did not violate public policy by voluntarily including a reasonable job security provision in a bargaining agreement that lasted only three years. Johnson City Prof. Firefighters L-921 and Vil. of Johnson City, #507278, 2010 N.Y. App. Div. Lexis 2825 (3rd Dept.).

Retaliatory Personnel Action

     Being listed as a witness in an appeal filed by a coworker did not trigger anti-retaliation provisions. Thampi v. Manatee County, #09-16139, 2010 U.S. App. Lexis 13580 (11th Cir.).

Retirement Rights and Benefits

     Pennsylvania appellate court overturns a holding that DROP plans for police officers are illegal because under an interpretation that a police officer cannot be simultaneously retired and receiving pension benefits and also be employed. "The employment status of a DROP participant after his retirement status is fixed … is irrelevant." Bor. of Ellwood City v. Police Dept. Wage Policy Committee, #815 C.D. 2009, 2010 Pa. Commw. Lexis 320.

• Editor's Note: Read a Q&A on DROP plans for Pennsylvania police officers.

     Florida appellate court rejects a class action suit that a sheriff unlawfully impaired the obligations of a valid contract by unilaterally amending the terms of benefits for retired employees. The voluntary act of implementing an internal policy that is subject to a unilateral amendment or cancellation does not create contractual rights. Carlucci v. Demings, #5D08-3728, 2010 Fla. App. Lexis 3625 (5th App. Dist.).

• Editor's Note: Art. I, §10 of the Florida Constitution parallels the U.S. Constitution, and provides that "No ... law impairing the obligation of contracts shall be passed."

     California appellate court holds that a public retirement system has the right to initiate collection proceedings to cure under-funding of pensions. City of San Diego v. Employee Retirement System, #D054688, 2010 Cal. App. Lexis 1000 (4th Dist.).

     Florida appellate panel affirms an administrative decision to deny retirement benefits to a former sheriff, who pled guilty to a federal mail fraud offense. Jenne v. State of Florida, #1D09-2959, 2010 Fla. App. Lexis 5234 (1st Dist.).

Sex Discrimination - Correctional Facilities

     State department of corrections failed to prove that gender was a BFOQ for promoting lieutenants. Breiner v. Nevada Dept. of Corr., #09-15568, 2010 U.S. App. Lexis 13933, 109 FEP Cases (BNA) 1153 (9th Cir.).

     Suspensions and Administrative Leave A federal agency may not indefinitely suspend, without pay, a law enforcement officer solely because it is investigating allegations of misconduct. Indefinite suspensions are permissible only under three limited circumstances:

1. When the agency has reasonable cause to believe an employee has committed a crime for which a sentence of imprisonment could be imposed - pending the outcome of the criminal proceeding or any subsequent agency action following the conclusion of the criminal process.
2. When the agency has legitimate concerns that an employee's medical condition makes his continued presence in the workplace dangerous or inappropriate - pending a determination that the employee is fit for duty.
3. When an employee's access to classified information has been suspended and the employee must have such access to perform his job - pending a final determination on the employee's access to classified information.

Gonzalez v. Dept. Homeland Security, #NY-0752-09-0052-I-1, 2010 MSPB 132.

Transfers - Disciplinary or Punitive

     The reassignment of a black, GS-15 agent-in-charge of a former First Lady's Secret Service detail to an Asst. Agent-in-Charge position at a training center was not appealable, because it was at the same pay grade and was not an adverse personnel action. Moreover, the "ample record supports the Service's assertion that [the agent] was reassigned based on the perceptions of his first and second line supervisors that he had been less than effective managing the relatively small [Lady Bird] Johnson Protective Division." Sykes v. Napolitano, #07-42, 2010 U.S. Dist. Lexis 45873 (D.D.C.).

Union and Associational Activity

     Seventh Circuit resurrects a retaliation lawsuit brought by an ex-firefighter who claimed that his separation for sub-marginal performance was because of his pro union activities. Although in Illinois a small fire district is not obligated to bargain with a union, it can do so voluntarily. The plaintiff "had the right to join a union or to organize his fellow firefighters into a collective bargaining unit and to work to convince the District to bargain with a group representative over wages and benefits, even if the District had no obligation to engage in collective bargaining." Kodish v. Oakbrook Terrace Fire Prot. Dist., #08-1976, 2010 U.S. App. Lexis 9511, 604 F.3d 490 (7th Cir.).

Wrongful Discharge/Discipline: Damages & Settlements

     Missouri jury awards $6.5 million to a black detective for wrongful termination. The verdict included $250,000 for race discrimination, $250,000 in punitive damages on a whistleblower claim, $3.5 million for breach of contract and $2.5 million for wrongful discharge. The ex-officer's lawyer only asked for $1.9 million in damages. Holmes v. Bd. of Police Cmsnrs. of Kansas City, Cir. Ct. Jackson Co., Mo. (Unpub. Apr. 2010).

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• Report non-working links here

Corrections employment:

• Article: Reasons for Choosing a Correction Officer Career, 7 (1) Psychological Services (APA) 34-43 (Feb. 2010).

Mental illness:

• Report: Improving Police Response to Persons With Mental Illness, IACP/BJA (June 2010).

Military service:

• Guide: Combat Veterans: A Transition Guide for Veterans Beginning or Continuing Careers in Law Enforcement
• Guide: Law Enforcement Leader's Guide on Combat Veterans

Teleworking:

• Book: Handbook for Managing Teleworkers: A Five-Step Management Process, by Philpott & Gurvis, Government Training Inc., ISBN: 978-0-9844038-2-0, 212 pp. (May 2010).

Whistleblowers

• Report: Prohibited Personnel Practices, Merit Systems Protection Board (June 2010).

Reference:

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

Report non-working links here


CROSS REFERENCES
Arbitration Procedures - see: Reductions in Force
Injuries to Employees - see: Disability Benefits / disputed
Disciplinary Searches - see: Privacy Rights
Race Discrimination - see: Transfers

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

Jail and Prisoner Legal Issues
Operational and Administrative Issues
Jan. 10-12, 2011
Security and Incident Liability
Mar. 7-9, 2011

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