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Bargaining Unit Determinations

     Sergeants should not be included in the same bargaining unit as patrol officers. "The sergeants must investigate complaints, must report any violations of policy or inappropriate actions, and may recommend that disciplinary action be taken." City of Sandwich v. Illinois Labor Rel. Bd., #2-09-0800, 2011 Ill. App. Lexis 6.

Collective Bargaining - Duty to Bargain

     FLRA upholds an arbitration award that found that management had violated the bargaining agreement by unilaterally implementing a policy that restricted when certain employees could use annual leave. Social Secur. Admin. and AFGE C-220, #0-AR-4485, 65 FLRA No. 70 (2010).

Criminal Liability

     Seventh Circuit affirms the RICO conviction of a former Chicago police officer for shaking down drug dealers. U.S. v. Shamah, #09-2767, 2010 U.S. App. Lexis 20998 (7th Cir.).

Disability Rights and Benefits - Benefit Disputes

     To qualify for a line-of-duty disability pension, an Illinois firefighter must show that he was injured while in the performance of an act of duty. However, to qualify for additional relief under the Public Safety Employee Benefits Act, the injury or death must occur as a result of a "response to what is reasonably believed to be an emergency." Oskroba v. Hoffman Estates, #1-09-2634, 2010 Ill. App. Lexis 942.

Disciplinary Appeals & Challenges - Reviewing Standards

     In reviewing disciplinary actions on appeal, even where there is conflicting testimony, credibility determinations are final. Unless clearly contrary to the evidence, credibility determinations are within the discretion of a civil service board or other authority and may not be disturbed by a reviewing court. Scanlan v. Dept. of Police, #2010-CA-0584, 44 So.3d 921, 2010 La. App. Unpub. Lexis 456.

Domestic Partner Rights

     Supreme Court rejects an appeal from opponents of the District of Columbia's same-sex marriage law. In 2010, the District began issuing marriage licenses for same-sex couples; it also recognizes same-sex marriages performed elsewhere. Jackson v. Dist. of Col. Bd. of Elections, #10-CV-20, 999 A.2d 89 (D.C. App. 2010); cert. den. #10-511, 2011 U.S. Lexis 730 (Sup. Ct. 2011).

E-Mail/Internet - Legal Issues

     Seventh Circuit affirms the conviction of an IRS officer for wiretapping. He secretly arranged to have his supervisor's e-mails forwarded to him. The defendant claimed that the government should have charged him under the Stored Communications Act, 18 U.S. Code § 2701-12, rather than the Wiretap Act. Rejecting that defense, the court wrote that the Wiretap Act's definition of "interception" comprises packet-switch technology as well as circuit-switch technology. U.S. v. Szymuszkiewicz, #10-1347, 2010 U.S. App. Lexis 18815 (7th Cir.).

Emotional Distress

     Seventh Circuit reduces a jury verdict of $500,000 to $250,000, awarded to a black paramedic. The plaintiff was placed on probation with no change to his compensation and the nature of his emotional distress did not warrant a half-million dollar award. Thompson v. Mem'l Hosp. of Carbondale, #07-2249, 2010 U.S. App. Lexis 22909 (7th Cir.).

Free Speech

     A police officer's report of an allegedly improper relationship between other officers was not protected speech under the First Amendment, because the officer spoke pursuant to his official duties. Platt v. Vil. of Southampton, #09-4395-civ, 2010 U.S. App. Lexis 18202 (Unpub. 2nd Cir.).

First Amendment Related

     Affirming a deputy sheriff's termination, a verbal confrontation with the sheriff is not protected by the First Amendment. Dahl v. Rice County, #09-1210, 2010 U.S. App. Lexis 19064 (8th Cir.).

National Security Issues

     Federal employees who occupy non-critical sensitive positions may contest adverse actions with the Merit Systems Protection Board if their agencies find them ineligible to occupy sensitive jobs. Two Defense Dept. workers complained that they were disciplined for being security risks even though they never accessed classified information. Conyers v. Dept. of Defense, #CH-0752-09-0925-I-1, 2010 MSPB 247; Northover v. Dept. of Defense, #AT-0752-10-0184-I-1, 2010 MSPB 248.

Nepotism and Consanguinity Regulations

     Fourth Circuit concludes that "anti-nepotism policies do not significantly interfere with the right to marry and should be reviewed under the rational basis standard." Woodard v. Co. of Wilson, #08-2366, 2010 U.S. App. Lexis 18373 (Unpub. 4th Cir.).

     Massachusetts Supreme Court upholds the termination of a probation officer who failed to disclose on his employment application that he was related to other employees. Anzalone v. Admin. Office of the Court, SJC-10584, 457 Mass. 647, 2010 Mass. Lexis 600.

Pay Disputes - Overtime Claims

     In rejecting a state court action for overtime claims, a California appellate panel holds that absent express words to the contrary, governmental agencies are not included within the general words of a statute. "Provisions of the Labor Code apply only to employees in the private sector unless they are specifically made applicable to public employees." Calif. Correctional POA v. State of California, #A125679, 188 Cal. App. 4th 646; 115 Cal. Rptr. 3d 361, 2010 Cal.App. Lexis 1613.

Pensions

     Fifth Circuit holds that the United States may garnish a sheriff's retirement benefits to satisfy a criminal restitution order, but only up to 25% the monthly benefits. In the case of a full redemption of paid-in contributions, the entire amount is subject to seizure. U.S. v. De Cay (La. Sheriffs Pension Fund), #09-30218, 2010 U.S. App. Lexis 19522 (5th Cir.).

Privacy Rights

     Supreme Court finds that the Government has an interest in conducting basic background checks in order to ensure the security of its facilities and to employ a competent, reliable workforce to carry out the people's business. That interest is not diminished by the fact that respondents are contract employees. Justice Thomas added that "the Constitution does not protect a right to informational privacy." NASA v. Nelson, #09-530, 2011 U.S. Lexis 911.

     In a 2-to-1 ruling, the Sixth Circuit holds that bringing an unlabelled folder containing private information of federal correctional officers into an unsecured workspace rose to the level of "intentional or willful" agency action under the Privacy Act. A verdict for plaintiff officers is upheld. Beaven v. U.S. Dept. of Justice, #08-5297, 2010 U.S. App. Lexis 19927, 2010 FED App. 0313P (6th Cir.),

Race Discrimination - In General

     Appellate panel rejects a racial bias claim filed by a minority firefighter who was fired after his arrest for receiving stolen property. Although he was not convicted of that offense, his record of prior arrests and the lack of evidence showing discrimination of any sort, he was unable to prove his termination was pretextual and that racial animus was the motivating factor. Chism v. Curtner, #09-2632, 2010 U.S. App. Lexis 18148 (8th Cir.).

Race: Reverse Discrimination

     Seventh Circuit refuses to dismiss a suit by three white police lieutenants who alleged that they were passed over for promotion to captain despite ranking higher on the eligibility list than three African-American lieutenants who were promoted ahead of them. Finch v. Peterson, #09-2676, 2010 U.S. App. Lexis 18954 (7th Cir.).

     Fifth Circuit rejects a bias claim brought by a white prosecutor who was replaced by a black lawyer. The plaintiff allegedly was disrespectful, unnecessarily confrontational, and uncooperative. Jackson v. Watkins, 09-10635, 2010 U.S. App. Lexis 19075 (5th Cir.).

Residency - Preservice/Durational Requirements

    Federal court finds that a pre-employment residency requirement had an unlawful disparate impact on minority hiring; injunction issued. NAACP v. N. Hudson Reg. Fire & Rescue, #07-1683, 2010 U.S. Dist. Lexis 98671, 110 FEP Cases (BNA) 644 (D.N.J.).

Retaliatory Personnel Action

     Federal Merit Board orders the reinstatement of, and back pay for, a former U.S. Park Police chief who was fired after speaking out against manpower shortages, resulting in increased crime and drug activity in Washington area parks. Chambers v. Dept. of the Interior, DC-1221-04-0616-M-2, 2011 MSPB 7.

• Note: The litigation has a lengthy history, having previously being the subject of two decisions by the Merit Board, 103 M.S.P.R. 375 (2006) and 110 M.S.P.R. 321 (2009), and two decisions by the U.S. Court of Appeals for the Federal Circuit, 515 F.3d 1362 (Fed. Cir. 2008) and 602 F.3d 1370 (Fed. Cir. 2010).
• The Washington Post wrote, "The first great irony in the Teresa Chambers case is that the former and almost certainly future chief of the U.S. Park Police has become one of America's most successful whistleblowers without ever having intended to blow the whistle in the first place. The second is that although Chambers recent victory in a seven-year legal saga is a triumph for truth in government, the battle also highlighted how hard it is to protect officials who dare to speak openly and plainly to the public. Source: Park Police chief's saga is both triumph, warning about honesty in government (Washington Post, Jan. 19, 2011).

     California's fair employment law does not provide for a claim of retaliation against a supervisor. Grobeson v. City of Los Angeles, #B207551, 2010 Cal. App. Lexis 2040.

Sexual Harassment - Verdicts, Settlements & Indemnity

     Fifth Circuit affirms a jury award of $230,000 for backpay and compensatory damages, finding that the plaintiff was sexually harassed by a captain. Owen v. Harris County, #09-20479, 2010 U.S. App. Lexis 17850, 110 FEP Cases (BNA) 10 (5th Cir.).

Vehicle Related

     An Illinois public employer's policy that its employees must reimburse fines paid by the employer due to red light camera violations is a disciplinary penalty "because it imposes a monetary sanction on the employee." In dismissing a lawsuit brought by a union, an appellate court panel concludes that the grievance mechanism provided in the bargaining agreement is the sole remedy of a public employee. Amalgamated Transit Workers Union v. Pace, #1-10-0631, 2011 Ill. App. Lexis 5.

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Legislative oversight:

• Congressional Oversight Manual, prepared by the Congressional Research Service, #RL30240 (2011).

Pay & allotments - federal:

• Pay Under the General Schedule and Recruitment, Relocation, and Retention Incentives, 76 (5) Federal Register 1096 (Jan. 7, 2011).

Military service - educational benefits:

• Changes to the G.I. Bill

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
Criminal Liability - see: E-Mail
Garnishment - see: Pensions
Grievance Procedures - see: Vehicle Related
Race Discrimination - see: Emotional Distress
Whistleblower Protection - see: Retaliatory Personnel Action

AELE Seminars:

Legal, Psychological and Biomechanical Aspects of
Officer-Involved Lethal and Less Lethal Force
Oct. 10-12, 2011 – Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 12-14, 2011 - Las Vegas

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