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Bill of Rights Laws

     A California police chief showed that he had been removed from office in violation of his rights under the state's Public Safety Officers Procedural Bill of Rights Act (POBRA), Gov.Code,  §3300 et seq. He was not provided with the required notice, statement of reasons, or opportunity for an administrative appeal guaranteed by the statute. The municipality also breached the automatic three-year renewal provisions of the chief's contract, and the contract did not allow for an oral notice of non-renewal. Under the agreement, he was also entitled to six months of severance pay. Robinson v. City of Chowchilla, #F059608, 2011 Cal. App. Lexis 1636.

Disability Rights and Benefits - Line of duty related/ disputed

     A firefighter who suffered a disabling injury as a result of an on the job fight with a co-worker was not entitled to line-of-duty accidental disability retirement benefits. The fight did not constitute a proximate and natural result of a job related accident as required to qualify for such benefits. In the Matter of Robert Walsh v. Scoppetta, #225, 2011 N.Y. Lexis 3656.

     An officer injured on duty while he attempted to push a stranded motorist's vehicle out of a bank of snow, where it was partially on the road, on an icy street was entitled to a line-of-duty disability pension. His injuries occurred while performing his job duties. The court rejected the argument that the possible availability of other persons to assist the motorist somehow altered whether a line-of-duty or non-duty pension should be awarded to the officer. The officer exercised his discretion in carrying out the requirement that he stop and render assistance to the driver. Ordinary citizens who passed by had no such duty. Mingus v. The Board of Trustees of the Police Pension Fund of Peoria, #3-11-0098, 2011 IL App (3d) 110098, 2011 Ill. App. Lexis 1249.

Disciplinary Surveillance

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

     The U.S. Supreme Court held that attaching a GPS device to a vehicle to track a criminal suspect constitutes a search under the Fourth Amendment. It upheld the ruling of a federal appeals court suppressing the evidence and overturning a conviction based on it, since the device was attached without a valid warrant authorizing it. The Court declined to consider the government's alternative argument that the attachment and use of the device was a reasonable search, because it was not raised in the courts below. U.S. v. Jones, #10-1259, 2012 WL 171117, 2012 U.S. Lexis 1063.

     During an investigation of a state employee suspected of taking unauthorized absences from work and falsifying time records, the employer attached a GPS tracking device to his privately owned vehicle. Evidence obtained from monitoring his travels was introduced at his misconduct hearing, which resulted in his termination. An intermediate state appeals court upheld the employer's action and the use of the GPS device to gather evidence of employee misconduct. The use of the device was reasonable when there were reasonable grounds to suspect the employee of misconduct. While the highest court in New York subsequently ruled that the placement of a GPS device on a car in a criminal investigation required a warrant, People v Weaver, #53, 12 N.Y.3d 433, 909 N.E.2d 1195 (2009), that decision was made in 2009, after the events in 2008 involved in the immediate case. Additionally, the case did not involve a criminal investigation, and the investigating agency could not obtain a warrant for its actions. In the Matter of Cunningham v. New York State Dept. of Labor, #512036, 2011 N.Y. App. Div. Lexis 8335, 2011 NY Slip Op 8529; 89 A.D.3d 1347;933 N.Y.S.2d 432 (3rd Dept.).

Handicap Laws/Abilities Discrimination - Diabetes

     The U.S. Department of Justice pursued a complaint that the Illinois State Police was engaged in a pattern or practice of discrimination in maintaining a policy automatically excluding applicants for cadet job vacancies if they have either a hearing loss and were not permitted the use of hearing aids or other assistive devices at a medical screening, or diabetes mellitus which is controlled by the use of an insulin pump. The government took the position that these job qualifications were not shown to be job related and consistent with business necessity for the job of state trooper. In a settlement, the State Police, without agreeing that its policy constituted disability discrimination, agreed to drop the automatic exclusion of candidates with diabetes or hearing loss. It agreed to individually assess such applicants for eligibility for hiring. Settlement agreement between the United States Government and Illinois State Police (Nov. 30, 2011).

Health Insurance and Benefits

  An intermediate Illinois state appeals court upheld a trial court's ruling that a municipal employer's obligation under a state statute to pay the whole health insurance premium for an injured police officer and his family is not applicable until and unless it is determined that he is entitled to a line-of-duty disability retirement pension because he will never return to work after suffering permanent disability caused by a catastrophic injury. Nowak v. City of Country Club Hills, #111838, 2011 IL 111838, 2011 Ill. Lexis 1834.

Homosexual & Transgender Employee Rights

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

     An applicant for a state job was dressed as a male when hired, and was born male, but after a time on the job, came dressed as a woman. The employee was subsequently fired after the department head expressed discomfort concerning this. The fired employee filed a federal civil rights lawsuit under 42 U.S.C. Sec. 1983, contending that termination from public employment on the basis of gender non-conformity is sex discrimination in violation of the Fourteenth Amendment's equal protection clause.

     A federal appeals court agreed, stating that a government agent violates the Equal Protection Clause's prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity." The court rejected the argument that the termination was justified by the possibility that female employees would complain or sue concerning the employee's restroom use, in light of the fact that the department's restrooms were single-occupancy. Glenn v. Brumby, #10-14833, 2011 U.S. App. Lexis 24137 (11th Cir.).

• Note: AELE has an article in its June 2007 Monthly Law Journal, "Legal Rights of Transsexual Public Safety Employees."

Residency - Preservice/Durational Requirements

     A federal appeals court has upheld the invalidation of a requirement that applicants for jobs with the fire department be local residents, agreeing with a finding that it has a disparate impact on African-American applicants. Statistical analysis indicated that the department should employ approximately sixty-five African-American firefighters, but under the residency rule currently employed only two. The department services five municipalities with heavy Hispanic populations. The residency requirement was not supported by a business necessity justification in that it was not linked to the minimum qualifications for firefighter jobs. The NAACP v. N. Hudson Regional Fire & Rescue, #10-3965, 2011 U.S. App. Lexis 24562.

Retaliation

     A probationary correctional officer failed to show that she was constructively terminated and compelled to resign in retaliation for her refusal to make false statements to a grand jury, in violation of her First Amendment rights. She had observed a couple arguing outside a home, and had allegedly been pressured by a police detective who was unsatisfied with her statements indicating that what she had observed had not been a battery. He allegedly complained to her employer in an attempt to bully her into changing her story, which she refused to do. She failed to show that the alleged firing was retaliatory, and had no protected interest in staying on the job, given her probationary status. Redd v. Nolan, #10-2680, 2011 U.S. App. Lexis 23692 (7th Cir.).

Untruthfulness - Lying to superiors or internal affairs investigators

    Administrative charges against a police officer for making false statements about past misconduct in the course of an internal investigations were not barred by a one year limitations period provided in the Maryland Law Enforcement Officers’ Bill of Rights, Md. Code Public Safety §3-106(a). The limitations period starts to run from the day the officer's false statement came to their attention rather than from the date the underlying incident came to departmental attention. Robinson v. Baltimore Police Dept., #2011-17, 2011 Md. Lexis775.

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     Sleep Deprivation: "Sleep Disorders, Health, and Safety in Police Officers," by Shantha M. W. Rajaratnam, Laura K. Barger, Steven W. Lockley, Steven A. Shea, Wei Wang, Christopher P. Landrigan, Conor S. O’Brien, Salim Qadri, Jason P. Sullivan, Brian E. Cade, Lawrence J. Epstein, David P. White, and Charles A. Czeisler, for the Harvard Work Hours, Health and Safety Group, Journal of the American Medical Association (JAMA) 2011; 306(23):2567-2578. The article indicates that as many as 40% of all police officers suffer from sleep disorders. Subscription or one-time access fee required. Abstract.

Reference:

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

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AELE Seminars:

Jail Liability – Incident Liability
(In-custody deaths, use of force, extractions, etc.)
Mar. 5-7, 2012 -Las Vegas

Lethal and Less Lethal Force
Oct. 15-17, 2012 – Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 10-12, 2012 - Las Vegas

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