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Arbitration Punishment Awards – Right of Courts to Interfere

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

     A police officer employed by a city was terminated after he committed an act of domestic battery and then lied about doing so. The union representing officers filed a grievance asserting that the discharge was not for just cause. An arbitrator agreed, and ordered that he be reinstated. A trial court found that the arbitration decision was void and in violation of public policy. An appeals court upheld that ruling.

     “We are aware of no case, and no statute, that requires an allegation of misconduct in this context be proved by clear and convincing evidence because the misconduct may also be criminal and because the City seeks to discharge the officer. There is well-defined and dominant public policy against acts of domestic violence. Acts of domestic violence are even more disturbing when committed by a police officer – whether on or off duty. It is a violation of public policy to require the continued employment of an officer who has been found to be abusive and untruthful. We find the standard of proof is preponderance of the evidence. The Arbitrator concluded the act was proved by a preponderance and the lie was proved by a preponderance. It would be repugnant to public policy to retain [him] as a police officer in these circumstances.” Decatur Police Benevolent and Protective Ass’n Labor Committee v. City of Decatur, #4-11-0764. 968 N.E.2d 749 (Ill. App. 2012).

Collective Bargaining - Duty to Bargain

     A collective bargaining agreement entered into by the state of Delaware and its agencies required that overtime be paid after 37.5 hours of work per week. The agreement also established a "career ladder" for promotions in some positions based on the satisfaction of specified requirements. Despite the agreement, the state changed the overtime minimum to pay for work over 40 hours instead of 37.5, as well as freezing the career ladder temporarily. The state Court of Chancery ruled that the state was not required to bargain over nonmandatory subjects of collective bargaining, which included overtime and the career ladder. Unfair labor practice charges were properly dismissed. The court further found that provisions of the collective bargaining agreement which conflicted with the legislature's appropriations act were unenforceable. Am. Fed'n of State, County, & Mun. Employees v. State Court:, #CA 6159-VCP, 2012 Del. Ch. Lexis 249.

Disciplinary Procedures - In General

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

     A union representing police officers sued challenging a town law establishing police officer disciplinary procedures different from those specified in a collective bargaining agreement. The highest court in New York ruled that the municipality had the authority under a state statute to adopt such rules and regulations as it chose for "the examination, hearing, investigation and determination of charges, made or preferred against any member or members of such police department." While the collective bargaining agreement provided officers subject to discipline with the right to a hearing before a neutral arbitrator, the town's law did not provide for arbitration, but instead provided for a member of the Town Board or their designee to conduct a hearing, with the Town Board rendering a final decision, subject to judicial review. The power to adopt police disciplinary rules belonged to the Town Board and was a prohibited subject of collective bargaining. In the Matter of Town of Wallkill v. Civil Service Employees Association, Inc., #180, 2012 N.Y. Lexis 3090.

     A police officer was fired after an internal affairs investigation concluded that he violated two provisions of the code of conduct. A city civil service board found that the city acted in good faith with cause but modified the discipline imposed to a suspension, believing that termination was too harsh a penalty. The Louisiana Supreme Court held that the civil service board had the power to modify the disciplinary penalty without a finding that the city acted in bad faith or without cause. City of Bossier City v. Vernon Court, #2012-C-0078, 2012 La. Lexis 2724.

     A former fire department Battalion Chief sought a ruling that a city's personnel board had to hear his appeal of his termination even though a city ordinance classified all department heads and their assistants as exempt employees. He argued that he was denied the right of judicial review because the board never entered an order, adjudication or decision from which he could appeal. An intermediate Ohio appeals court upheld a decision for the plaintiff employee and rejected the board's position that a letter that the city attorney sent the ex-employee telling him that he had no right to appeal his termination to the board was sufficient. The board would be ordered to hear his appeal. State ex rel. Holloway v. Personnel Appeals Bd., #24635, 2012 Ohio 628, 2012 Ohio App. Lexis 545.

National Security Issues

     A naval aide who collected secret documents at his home was charged with espionage under 18 U.S.C. § 793(e), even though he did not tender the documents to a foreign power. After serving in Bahrain as a Navy contract linguist, he allegedly improperly retained classified documents unlawfully. He said that his sole purpose in taking the documents to his quarters was to read them, and also argued that he had no knowledge that they were classified, despite clear markings on them. U.S. v. Hitselberger, #1:12-cr-00231 (D.D.C. 2012).

Political Activity/Patronage Employment

     An employee of a county court clerk's office asserted that her termination by the newly elected clerk was based on her prior candidacy in the primary as the clerk's rival, and therefore unconstitutional under the First Amendment. A federal appeals court rejected this claim, finding that it did not violate the First Amendment. The jobs of deputy court clerks were not protected by civil service, and those in the job lacked a protected property interest in their employment. The court noted that this was not a pure political patronage case nor a pure political affiliation case, since both the newly elected clerk and the terminated employee belonged to the same political party, both being Republicans. The court held that an elected official may fire an immediate subordinate for opposing her in an election without violating the First Amendment if the subordinate, under state or local law, has the same duties and powers as the elected official, as they are the type of confidential employee who can be terminated under applicable U.S. Supreme Court precedents. The clerk had to be able to select a deputy from whom she could expect undivided loyalty even if the day-to-day job did not involve setting policy or the exercise of unlimited discretion. Underwood v. Harkins, #11-13117, 2012 U.S. App. Lexis 21788 (11th Cir.).

Privacy Rights

     A female former police officer in Minnesota who had served on the forces of two municipalities will receive a total of $665,000 in settlements on a privacy invasion claim from cities employing officers who allegedly routinely looked into her driver and vehicle services data file without a law enforcement purpose. They did so in response to gossip about her that began when she engaged in training for a body sculpting contest at a local gym frequented by other officers. She claimed that a total of 140 other officers looked at her file to view her photos, address, physical description, driving records and other unspecified personal information. A statute made it possible for her to sue and be awarded damages at a minimum rate of $2,500 for each unauthorized access to her file, and she alleged that there may have been as many as 228 unauthorized accesses by officers from just one city. Rasmusson v. City of St. Paul, Minn., reported in the Minneapolis Star Tribune, October 16, 2012. Click here to read the text of the settlement agreement between the plaintiff and the City of St. Paul.

Residency - Continuing Requirements

     A unanimous decision of an intermediate Ohio appeals court struck down a Cincinnati city ordinance barring all city employees from living outside the state of Ohio. It found the city ordinance in conflict with a state law barring the imposition of residency requirements by political subdivisions with the exception of requiring certain employees to live no further away than adjacent counties to ensure adequate response times to emergencies or disasters. With that sole exception, employees of a governmental entity in Ohio have the right to live anywhere they want. Because the city ordinance was in conflict with the state statute, it was deemed void. Cincinnati v. State, #C-110680, 2012 Ohio 3162, 2012 Ohio App. Lexis 2810.

Retaliatory Personnel Action

     The U.S. Department of Justice has entered into a settlement with the city of Selma, Texas on a claim that the city unlawfully retaliated against a firefighter who filed a complaint against a fire chief for his use of ethnic slurs in the workplace by demoting him from lieutenant to firefighter. The city agreed to pay the employee $28,500 in back pay. Reversal of the demotion was not a remedy, because the employee had subsequently become employed by another fire department. The city also agreed to provide training to all city fire department employees and all city supervisory employees on the legal prohibitions on discrimination and retaliation. U.S. v. City of Selma, #5:12-cv-00287, U.S. Dist. Ct. (W.D. Tex. 2012). Press release. Complaint.

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     Arbitration: "Discipline and Discharge of Public-Sector Employees: An Empirical Study of Arbitration Awards," by Laura J. Cooper, ABA Journal of Labor & Employment Law, Vol. 27, Number 2, pg 195 (Winter 2012).

     Collective Bargaining: "The Legislative Upheaval in Public-Sector Labor Law: A Search for Common Elements," by Martin H. Malin, ABA Journal of Labor & Employment Law, Vol. 27, Number 2, pg 149 (Winter 2012).

     Collective Bargaining: "The Constitutional Dimension of Unilateral Change in Public-Sector Collective Bargaining," by Stephen F. Befort, ABA Journal of Labor & Employment Law, Vol. 27, Number 2, pg 179 (Winter 2012).

     Police Management: "The Police Chief as Coach: Analogies between Sports and Effective Police Leadership," By Thomas J. Jurkanin, PhD, Police Chief Magazine (November 2012).

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:

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

Jail Liability – Administrative Issues
(Diet, mail, religion, classification, etc.)
Jan. 14-16, 2013 - Las Vegas

Jail Liability – Incident Liability
(In-custody deaths, use of force, extractions, etc.)
Mar. 4-6, 2013 - Las Vegas

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