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Bill of Rights Laws

     An assistant sheriff was entitled to an award of back pay for the period of time between his summary firing for alleged disloyalty and his subsequent no contest pleas to two state felony charges (for misappropriation of public resources and perjury before a grand jury), which made it impossible for him to continue to be employed as a law enforcement officer. Firing him without any kind of hearing violated his rights under California's Public Safety Officers Procedural Bill of Rights Act (POBRA), Government Code, § 3300 et seq., and purported waivers of POBRA rights that he purportedly signed on two occasions did not alter the result. Jaramillo v. County of Orange, #G043142, 2011 Cal. App. Lexis 1397 (Cal. App.).

Body Armor

      The U.S. Justice Department has reached settlements for a total of over $61 million against ten companies that manufactured allegedly defective Zylon bulletproof vests. In the latest settlement against two now bankrupt Point Blank companies, located in Pompano Beach, Florida and Jacksboro, Tennessee, the government agreed to accept $1 million to resolve claims that the companies made defective vests with knowledge that the Zylon degraded rapidly over time and therefore was not suitable for ballistic use. Point Blank vests were purchased by the U.S. government, as well as by state, local, and tribal law enforcement agencies. Many purchases by state, local, and tribal agencies were partially funded by the U.S. Department of Justice's Bulletproof Vest Partnership Grant Program. At least four other lawsuits are currently pending against other manufacturers of allegedly defective bulletproof vests. Justice Department press release (November 7, 2011).

Family Medical & Personal Leave

     A county employee made accusations that a county commissioner sexually harassed her and subsequently took time off from her job, stating that she was depressed and anxious and believed that she was experiencing hostility at work after pressing her harassment claim. When informed that her available leave under the federal Family and Medical Leave Act (FMLA) was expired, she submitted her resignation, and sued the county for allegedly interference with her FMLA rights, constructive discharge, and unlawful retaliation. An appeals court upheld the rejection of all these claims. It noted that the plaintiff had been granted a full twelve weeks of leave under the FMLA during each year that she requested it, that no actions taken by the employer would have intimidated a reasonable employee into failing to report sexual harassment claims, and that there was no evidence concerning the employer's intent and actions that supported the constructive discharge claim. Quinn v. St. Louis County, #10-3332, 653 F.3d 745 (8th Cir. 2011).

Political Activity

     A sergeant failed to prove that he was passed over for promotion to lieutenant for political reasons by a Democratic sheriff because he is a Republican, did not donate to the sheriff's election campaign, and donated to and voted for his Republican opponent. The average donations to the sheriff's election campaign by eligible officers not promoted exceeded the average donations of those who were promoted. The plaintiff's "lurid" evidence concerning possible sex discrimination in favor of a female officer who was promoted, including a story about her having sex with a boyfriend in a backyard hot tub in the view of others (and the fact that she was the sister-in-law of one of the sheriff's top advisors) was irrelevant and inadmissible hearsay, since the plaintiff had not claimed gender discrimination in his complaint. He was properly denied permission to amend his complaint to include such a claim 56 months after the suit was filed. "If all that's charged is discrimination on political grounds, any nonpolitical ground that the defendant can prove would have caused the discrimination regardless of the presence of political hostility will preclude liability." Brown v. County of Cook, #11-1953, 2011 U.S. App. Lexis 21513 (7th Cir.).

Privacy Rights

     An intermediate Ohio appeals court ruled that a city police department properly withheld the names of individual undercover police officers from copies of internal investigation records it provided to a newspaper in response to their request for public records. The identities of the officers were exempt from the definition of a public record under state law and their release could result in injury to them, in violation of their fundamental right to due process under the Fourteenth Amendment. "[W]e determine that the officers’ interest in protecting themselves and their families from serious bodily harm outweighs the public’s interest in uncovering the individual officer’ names." The records sought concerned an incident in which shots were exchanged between officers and members of a motorcycle club they were investigating. State of Ohio ex rel. The Cincinnati Enquirer v. Streicher, #C-100820, 2011 Ohio App. Lexis 3766; subsequently referred to mediation, #2011-1798, 2011 Ohio 5604, 2011 Ohio Lexis 2702.

Race Discrimination -- In General

     A federal trial judge has ruled that the New York City Fire Department has discriminated against minority job applicants, and that it was necessary to appoint an outside monitor for a period of at least ten years to oversee the department's recruitment and hiring practices in order to see that more minority applicants get hired. Plaintiffs in the lawsuit argued that the composition of the department had remained approximately 97 percent white for decades in a city whose population is approximately one-quarter African-Americans with many Hispanics. U.S.A. and The Vulcan Society, Inc. v. City of New York, #07-CV-2067, U.S. Dist. Ct. (E.D.N.Y. Oct. 5, 2011).

Race and Sex Discrimination

     A 49-year-old Cape Verdean black female employee of a county sheriff's department failed to show that she had been subjected to age, gender, race or national origin discrimination when she was passed over for promotion to computer programming jobs that were given to two younger white employees, one male and the other female. One had a computer-related associate's degrees and both had years of experience in intranet/internet user interface development. While the plaintiff also had a similar associates degree, her experience in a computer-related job was eleven years ago, and her experience was with a now long outdated DOS-based computer system that is no longer used. Additionally, she received the lowest exam and interview scores. Her current position as a budget administrator did not involve any use of computer skills. The court agreed that she simply wasn't qualified for the position she sought. Goncalves v. Plymouth County Sheriff's Department, #10-2063, 2011 U.S. App. Lexis 20397, 113 Fair Empl. Prac. Cas. (BNA) 805 (1st Cir.).

Retaliation

     A deputy sheriff called into a talk radio program and stated that the current sheriff was not a good fit for the job. In response, the sheriff called in and replied that the deputy was a "slacker," and made statements about the deputy's disciplinary record, saying it involved sexual harassment of another employee, when it actually involved violation of a rule against offensive conduct or language. The deputy sued the sheriff for unlawful retaliation against him for exercising his First Amendment rights in criticizing the sheriff. A federal appeals court rejected this claim, because "(w)e cannot afford one party his right to free speech while discounting the rights of the other party." The appeals court also rejected claims that the sheriff, in making the statements about the deputy's alleged disciplinary record, violated Wisconsin laws concerning privacy and open public records. The open records statute did not apply, as there was no actual release of a public record. As for privacy, the court found that there was no genuine public interest in keeping the record of the concluded disciplinary investigation closed to the public.  Hutchins v. Clarke, #10-2661, 2011 U.S. App. Lexis 21475  (7th Cir.)

Telephone & Pager Monitoring / Audio & Video Taping

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

     A female deputy sheriff who was secretly videotaped by a co-worker in a decontamination area of a hospital following a shower could proceed with her privacy lawsuit against the county. She was required to undergo the decontamination shower after being exposed to a large number of fleas while conducting a search of a building. The video footage was allegedly put on a departmental computer and disclosed to others over the municipal network. The court held that the deputy had a reasonable expectation of privacy in the shower and the decontamination room following the shower. The co-worker who created the video served as the department's computer administrator. The video had images revealing the deputy's back, shoulders, and limbs, with the rest of her body was covered only with "paper sheets, almost like when you're at a doctor's office." Doe v. Luzerne County, #10-3921, 2011 U.S. App. Lexis 20650 (3rd Cir.).

Workers Compensation: Claim Validity

     A 71-year-old volunteer firefighter who suffered two injuries on the job while responding to calls was a county employee for purposes of the California workers' compensation statute and entitled to benefits. The court ruled that the local nonprofit firefighting organization he belonged to was a "regularly organized volunteer fire department having official recognition" even though the county had not formally passed a resolution or entered into an agreement accepting liability for workers' compensation claims for its members. County of Kern v. Workers' Comp. Appeals Bd, #F057718, 2011 Cal. App. Lexis 1357.

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     Firearms: "Open letter to all federal firearms licensees," U.S. Dept. of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives (Sept. 21, 2011). Takes the position that persons making medical use of marijuana are not legally able to possess or use firearms or ammunition.

     Teleworking: "Telework: Weighing the Information, Determining an Appropriate Approach," The Office of Policy and Evaluation of the Merit System Protection Board (October 2011).

Reference:

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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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