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Bad Debts and Bankruptcy

     A former firefighter won a judgment against a city in excess of $1 million under the Family and Medical Leave Act (FMLA). He later filed a Chapter 7 bankruptcy petition, but did not list the judgment as an asset of the bankruptcy estate. After his bankruptcy discharge was granted, the judgment was discovered, the discharge revoked, and the bankruptcy case reopened, with the bankruptcy trustee seeking to collect the judgment from the city for the benefit of the firefighter's creditors. A federal appeals court, ruling en banc, rejected the argument that the firefighter's fraudulent concealment of the judgment judicially estopped the trustee's claim. Reed v. City of Arlington, #08-11098, 2011 U.S. App. Lexis 16652 (5th Cir.).

     Editor's note: The fact that the majority of the funds paid would go to the lawyer who represented the firefighter in the prior FMLA case did not alter the result, as the attorney had no knowledge of the filing of the bankruptcy petition.

Bill of Rights Laws

     A trial court reinstated a police officer to his prior employment, based on a finding that a settlement of pending disciplinary charges under which he agreed to resign if similar misconduct charges were upheld in the future, giving up his right to pursue an administrative appeal, violated his rights under the Public Safety Officers Procedural Bill of Rights Act (POBRA), Government Code, § 3300 et seq. An intermediate California appeals court reversed, holding that a waiver of POBRA's protections is permissible in the context of a settlement of a pending disciplinary action. Lanigan v. City of Los Angeles, #B228686, 2011 Cal. App. Lexis 1262 (2nd Dist.).

Collective Bargaining - Duty to Bargain

     A state labor relations board correctly ruled that a Village committed an unfair labor practice in failing to bargain in good faith with a firefighters union over the inclusion of a "minimum manning" section in a collective bargaining agreement. A balancing test was properly applied in determining that the issue was a mandatory subject of collective bargaining. Village of Oak Lawn v. Illinois Labor Relations Board, #1-10-3417, 2011 IL App (1st) 103417, 2011 Ill. App. Lexis 974 (1st Dist.).

Health Insurance & Benefits

     After a firefighter settled workers' compensation claims for various job-related injuries, he was awarded a line-of-duty disability pension. He then sued to have his continuing health insurance premiums paid under the Illinois Public Safety Employee Benefits Act, 820 ILCS 320/10, and Public Employee Disability Act, 5 ILCS 345/1(b). An intermediate appeals court found that the plaintiff was entitled to payment of the health insurance premiums under both statutes, based on agreed upon facts in the workers' compensation commission proceeding, which the Village was barred from relitigating. Richter v. Village of Oak Brook , #2-10-0114, 2011 IL App (2d) 100114, 2011 Ill. App. Lexis 1037 (2nd Dist.).

Homosexual & Transgender Employee Rights

****Editor's Case Alert****

     The State of Arizona, in 2008, extended health insurance benefits to both same-sex and opposite-sex domestic partners of state employees. Later that same year, voters in the state approved an amendment to the state constitution that defined marriage as only including relationships between a man and a woman, and then in 2009, the governor signed into law legislation removing health insurance coverage for domestic partners. A federal appeals court ruled that doing so violates equal protection of the law. Saving funds in this manner depends "upon distinguishing between homosexual and heterosexual employees, similarly situated, and such a distinction cannot survive rational basis review." Diaz v. Brewer, #10-16797, 2011 U.S. App. Lexis 18467 (9th)

Pay Disputes - In General

     While the adoption by California of a three-day-per-month furlough program for state employees reduced the pay of members of the California Correctional Peace Officers Association, this was within the authority of the state legislature in revising the state budget, and did not violate state labor or government codes or the state's minimum wage law. A trial court award of back pay for the officers was therefore reversed. Brown v. Superior Court, #A127292, 2011 Cal. App. Lexis 1259 (1st Dist.).

Retaliatory Personnel Action

     A fire district chief who imposed discipline on a firefighter had statutory immunity against a retaliation lawsuit claim by the employee. A state statute that removed immunity for political subdivisions in such employment related cases was clear and unambiguous in failing to alter the immunity of fellow employees. A unanimous Ohio Supreme Court held that the fire district chief, therefore, could not be sued in his individual capacity. Zumwalde v. Madeira & Indian Hill Joint Fire District, #2010–0218, 2011 Ohio Lexis 813, 128 Ohio St. 3d 492, 2011 Ohio 1603, 946 N.E.2d 748.

Retirement Rights and Benefits

     Unionized city employees who accepted early retirement under an incentive program while the city was negotiating with their unions for new contracts were not entitled to retroactive pay raises provided for city employees in the new contracts. The early retirement incentive program did not contain any provisions entitling them to such back pay, and the new contracts expressly excluded them from receiving such retroactive payments. This did not violate their due process rights. Marcatante v. City of Chicago, #10-2114, 2011 U.S. App. Lexis 17683 (7th Cir.).

     When a city realized that police and firefighters who had previously retired on disability pensions were receiving full reimbursement of their medical benefits without legal entitlement, the payments were stopped. In a lawsuit brought by the retirees, a federal appeals court ruled that, except for two retirees who received explicit promises of continued full medical benefits, the retirees had no right to such payments. The city had no obligation to continue payments not authorized by law, and to do so would be a misuse of public funds. Cahoon v. Shelton, #10-2134, 647 F.3d 18 (1st Cir. 2011).

Sex Discrimination

     A female correctional officer, having previously been warned about engaging in excessive absenteeism, declined to accept a change of shift requiring longer hours, and which she claimed would not reasonably accommodate her back problems. She was terminated, and claimed that this constituted gender discrimination because a male co-worker who also refused to accept a shift change was not disciplined as severely. A federal appeals court found that the two officers' actions were similar enough that a jury could find that the different treatment constituted gender discrimination, and should be allowed to consider her claim. Summary judgment for the employer was improper, and there was no indication in the record that the employer had taken her disciplinary record into consideration in firing her. Eaton v. Indiana Department of Corrections, #10-3214,  2011 U.S. App. Lexis 18675 (7th Cir.).

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       Body Armor: "Bulletproof Vest Partnership Initiative," BJA, Updated June 2011. This fact sheet describes the Bulletproof Vest Partnership (BVP) Program, a U.S. Department of Justice initiative designed to provide critical resources to state, local, and tribal jurisdictions for the sole purpose of purchasing bullet-resistant body armor for sworn law enforcement officers.

     Prison & Jail Employees: "Federal Bureau of Prisons: Enhanced Screening of BOP Correctional Officer Candidates Could Reduce Likelihood of Misconduct, Evaluation and Inspections," Report I-2011-002, U.S. Dept. of Justice, Office of the Inspector General (September 2011). The report indicates that arrests of federal prison guards increased by almost 90% in the past ten years, and states that this may be because of poor hiring practices during a period which saw a 25 percent increase in prison growth. The number of misconduct investigations doubled, and over half of the alleged offenses were committed during an officer's first two years on the job. Recommendations include better background screening of applicants and improvements in the assessment of new employees.

     Prison & Jail Employees: "Leadership Development for Jail Administration" BJA, the Center for Innovative Public Policies, the American Jail Association, and the Correctional Management Institute of Texas, (June 2011) With funding from BJA, the Center for Innovative Public Policies, the American Jail Association, and the Correctional Management Institute of Texas, Sam Houston State University developed several tools to enable jails to successfully develop and implement their own leadership development and succession planning initiatives.

Reference:

• Abbreviations of laws, law reports and agencies used in our publications.
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AELE Seminars:

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

Jail Liability – Administrative Issues
(Diet, mail, religion, classification, etc.)
Jan. 9-11, 2012 - Las Vegas
Jail Liability – Incident Liability
(In-custody deaths, use of force, extractions, etc.)
Mar. 5-7, 2012 - Las Vegas

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