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Collective Bargaining - Duty to Bargain

     An Illinois state labor relations board's decision that a consolidation of training districts for probationary police officers was not a mandatory subject for collective bargaining was upheld by an intermediate state appeals court. The city's failure to bargain over the issue was not an unfair labor practice. The city had an inherent right to adopt the most efficient method of training new police recruits. Any benefit that would come from bargaining over the question was outweighed by the possible burden it would place on the city's managerial authority. Fraternal Order of Police v. Illinois Labor Relations Board, #1-10-3215, 2011 Ill. App. Lexis 1196; 2011 IL App (1st) 103215.

Collective Bargaining - In General

     The highest court in New York ruled that a city and firefighters union which entered into a collective bargaining agreement were not required to arbitrate a dispute over the meaning of a "no lay-off" clause in the agreement after the city abolished a number of municipal jobs, including six firefighter positions, based on alleged budgetary necessity. A job security provision can be enforceable, but only if it is explicit, comprehensive, and unambiguous. In this case, the contractual language did not explicitly prohibit the city from eliminating firefighter jobs out of budgetary necessity. In the Matter of the Arbitration between Johnson City Professional Firefighters Local 921, #191, 2011 N.Y. Lexis 3251, 2011 NY Slip Op 8226

First Amendment

     A county correctional employee was fired for transmitting a sexually explicit image to a subordinate's cell phone, and other charges. A federal appeals court ruled that the pre-termination hearing provided to the employee satisfied due process requirements. He claimed that he was fired in retaliation for having brought a lawyer to represent him at his pre-termination hearing, in violation of his First Amendment right to association. The appeals court rejected this claim, stating that his retention of an attorney did not relate to a matter of public concern. The court relied on Borough of Duryea v. Guarnieri, #09-1476, 2011 U.S. Lexis 4564, 131 S. Ct. 2488, holding that when a public employee claims retaliation against them based on the exercise of the First Amendment right to petition the government, they must show their actions related to a matter of public concern, The appeals court found that the same reasoning applied to First Amendment association claims. Merrifield v. County of Santa Fe, #10-2175, 654 F.3d 1073 (10th Cir. 2011).

Handicap Laws/Abilities Discrimination - In General

     A city employee had severe attendance difficulties due to health problems. When she was denied a closer parking space at work that she had requested as a reasonable accommodation because of her difficulty walking, she sued the city for disability discrimination under the Americans with Disabilities Act (ADA). A federal appeals court ruled that she was not an otherwise qualified employee for purposes of the ADA, because her attendance was unpredictable, and regular attendance was an essential function of her job. The record also showed that her absenteeism problem was present long before she was diagnosed with fibromyalgia, her claimed disabling condition. The court also rejected the plaintiff employee's retaliation claim, since she could not show that she suffered any adverse employment action in retaliation for requesting the accommodation of the closer parking space. Colon-Fontanez v. Municipality of San Juan, #10-1026, 660 F.3d 17 (1st Cir. 2011).

National Origin Discrimination

     A police recruit dropped from the academy after failing a firearms test insisted it was because he was Polish. He father, who was a deputy sheriff, attempted to intervene on his behalf by contacting his son's supervisor. After a plea for reconsideration was rejected, an unidentified man made phone calls to the school the supervisor's children attended making "disturbing" statements and those calls apparently were made from the building where the father worked. A disciplinary action is filed against the father, and he opted for early retirement before his hearing is held. He and his son both asserted federal civil rights claims, but those claims are rejected. They then both sought to file employment discrimination lawsuits under Title VII, claiming that their terminations were based on their Polish national origins. Their Title VII lawsuit was barred by the earlier adverse decisions against them in their federal civil rights lawsuits, which were also based on their terminations. Palka v. City of Chicago, #09-2042,  2011 U.S. App. Lexis 21461; 94 Empl. Prac. Dec. (CCH) P44,303 (7th Cir.).

Nepotism

     Employees of a municipal fire department claimed that they were passed over for promotion because of a pattern of cronyism and nepotism in the department. They argued that this had risen to the level of political discrimination and that they were passed over for promotions because they chose not to associate themselves with "politically -powerful" members of the department. The appeals court upheld the rejection of this claim, finding that this associational choice of theirs did not amount to political or other constitutionally protected conduct. "The simple fact that one is a friend or relative of a powerful person does not create a political association implicating First Amendment concerns." Barry v. Moran, #10-1607, 661 F.3d 696 (1st Cir. 2011).

Political Activity/Patronage Employment

     A newly elected mayor found that the city's employees had swollen in number during the administration of the previous mayor, a member of a different political party. Because the city now had a $7.2 million annual deficit, with 82% of its budget spent on salary and benefits, he made personnel cuts. In a lawsuit by 61 terminated employees, he was accused of due process violations and political discrimination. An appeals court ruled that these claims failed because the personnel reductions were carried out under a validly enacted ordinance as a bona fide reduction in force for legitimate financial reasons. The selection of those who were terminated was not based on their political affiliations. As for the due process claim, pre-termination hearings "are not required by due process where a bona fide government reorganization plan bases dismissals on factors unrelated to personal performance." Rodriguez-Sanchez v. Municipality of Santa Isabel, #09-2635, 658 F.3d 125 (1st Cir. 2011).

Religious Discrimination

     A federal appeals court rejected a challenge to the legality of a prison-paid chaplaincy program that limited the hiring of chaplains to only those who were members of five major faiths--Protestant, Catholic, Jewish, Muslim, and Native American religions. While a Wiccan chaplain believed that it was unfair that he was not compensated for his services, there was no showing of intentional discrimination against him on the basis of religion. On his employment discrimination claim, requiring that he be a member of the designated faiths was a bona fide occupational qualification justified by the requirement of meeting the religious needs of the prisoners. The court did not reach the issue of whether Wiccan inmates could succeed in a challenge to the policy, but did say that, at this point, there is no clearly established right of Wiccan prisoners to have a paid chaplain. McCollum v. California Department of Corrections, #09-16404, 647 F.3d 870 (9th Cir. 2011).

Retirement Rights and Benefits

     The California Supreme Court stated that a county and its employees can enter into a binding implied contract granting a vested right to health insurance benefits on retired county employees when there is no explicit statute or ordinance prohibiting such an arrangement. The court made its ruling in response to a certified question submitted to it by the U.S. Court of Appeals for the Ninth Circuit in a case in which an association of county employees challenged the validity of changes a county made to health benefits for retirees, which would have the effect of eliminating a subsidy for retirees' health insurance. Retired Employees Assn. v. Co. of Orange, #S184059,  2011 Cal. Lexis 12109, 52 Cal. 4th 1171.

Untruthfulness & Resume Fraud - Lying in a judicial proceeding or otherwise when under oath

     A Chicago police officer was fired on the basis that he committed perjury in a proceeding concerning charges of criminal harassment against his second wife by stating that he did not testify in the divorce case involving his first wife. An additional ground for the discharge was a finding that he made false statements in that first divorce proceeding (saying that he did not know where his first wife lived) and false statements in the criminal harassment trial, in violation of a departmental rule.

     An intermediate appeals court ruled that he had not committed the crime of perjury, since his false statement at the criminal proceeding was immaterial to the issue of harassment. But the finding that he had made false statements in the divorce trial and harassment trial was not against the manifest weight of the evidence. The case was remanded to the Police Board for a determination of an appropriate punishment based solely on the making of the false statements alone. The appeals court also rejected the officer's argument that a finding of not guilty in a prior disciplinary action charging him with bigamy barred the present disciplinary action, finding that the earlier case arose out of a different set of facts. Taylor v. Police Board of the City of Chicago, #1-10-1156, 2011 Ill. App. Lexis 1150, 2011 IL App (1st) 101156.

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     Employee Wellness Programs: "The Employee Wellness Plan," by Mark E. McDonough, FBI Law Enforcement Bulletin, p. 1 (December 2011).

     Police Volunteer Programs: "Model Policy on Volunteers." This model policy on volunteers was developed by the National Law Enforcement Policy Center in partnership with the Volunteers in Police Service Program.

     Police Volunteer Programs: "Volunteers in Police Service Program Add Value While Budgets Decrease." Volunteers in Police Service Program (December 2011).

     Whistleblowing: "Blowing the Whistle: Barriers to Federal Employees Making Disclosures," Office of Policy and Evaluation of the U.S. Merit Systems Protection Board (MSPB) (November 2011).

Reference:

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