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Arbitration Procedures

     A union representing police officers believed that a retiree health insurance subsidy provision in a collective bargaining agreement locked the subsidy in place as it existed at the time of the officer's retirement. The union sought arbitration of a dispute over the county's attempt to reduce the subsidy. The county argued that it need not arbitrate as the collective bargaining agreement had expired and that the subsidy was subject to change from year to year. An arbitrator agreed, but an intermediate appeals court vacated the award. Reversing, the highest court in Maryland ruled that an arbitration clause can survive the expiration of a collective bargaining agreement as to vested rights obtained during the contract's term, and that the issue of arbitrability had been one for the arbitrator to initially determined rather than the courts. Baltimore County Fraternal Order of Police Lodge v. Baltimore County Court, #3/12, 2012 Md. Lexis 750.

Collective Bargaining - Duty to Bargain

     Two cities appealed separate judgments in favor of a police union ordering them to adopt collective bargaining procedures. The Missouri Supreme Court held that each city was required to collectively bargain with the union elected by their officers as their exclusive bargaining agent as this right was guaranteed by the state Constitution. The cities were not excused from having to do this because the employees represented by the union were not covered by procedures codified in a state public sector labor law. The court ordered the cities to recognize the unions as the collective bargaining agent for officers and sergeants and to begin to meet and confer with the union for collective bargaining purposes. E. Mo. Coal. of Police v. City of Chesterfield, #SC91736, 2012 Mo. Lexis 278.

     The Massachusetts Dept. of Labor Relations ordered a city to cease from assigning repairs, maintenance and replacement activities to bargaining unit members without first giving the union prior notice and an opportunity to bargain or go to impasse over the decision. City of Newton and Newton Firefighters L-863 IAFF, #MUP-05-4529 (MDLR 23012).

Disability Rights and Benefits - Line of duty related/ disputed

     A firefighter who injured his back after lifting a 360-pound patient onto a stretcher in an ambulance was awarded a firefighter's duty-related disability pension. The Pension Board subsequently terminated his benefits upon a determination that he had not been disabled when the pension was granted. It relied on a medical examination by a doctor which found that the firefighter was not and never had been disabled and was only expressing a subjective claim of pain. The decision was not against the manifest weight of the evidence and the Board was empowered to terminate the benefits. Hoffman v. Orland Firefighters' Pension Board, #1-11-2120, 2012 Ill. App. Lexis 952, 2012 IL App (1st) 112120.

Psychological Exams and Standards - Psychological Screening of Applicants

     A female candidate for a job as a police officer received conditional offers of employment from the Boston Police Department on three occasions, but each time was found psychologically unfit during a screening by department psychiatrists and bypassed. A civil service commission, following a hearing, found that the department had failed to meet the burden of showing that she was psychologically unfit to be a police officer and ordered that her name be restored to the list of candidates certified for available appointments. A trial court, upon review, vacated that order. The Supreme Judicial Court of Massachusetts reinstated that order. It did find that the commission acted erroneously in considering expert testimony offered in another proceeding in making its decision, but there was sufficient independent evidence apart from that in the record to support the commission's order, including that an opinion relied on had been based on "unsubstantiated and subjective" criteria that lacked adequate factual support," and an arbitrary predisposition against the candidate. Accordingly, the police department was not prejudiced by the error. Boston Police Dep't v. Kavaleski, #SJC-10972, 463 Mass. 680, 2012 Mass. Lexis 1005.

Race: Reverse Discrimination

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

     A New Jersey jury awarded $6.8 million in damages to two senior white corrections officers who claimed that they were subjected to reverse racial discrimination and harassment by African-American supervisors. They claimed that part of the purpose had been to deny them overtime and secure more overtime for African-American officers. The harassment asserted included the filing of false disciplinary reports, and the jury found that the Department of Corrections violated a state anti-discrimination law by transferring the two white officers and failed to take action to address complaints about hostility directed against them and other white officers at a facility for non-violent offenders. The award included $3 million dollars to each officer for punitive damages, as well as compensation for lost pay and pain and suffering. Milutin and Healey v. New Jersey State Department of Corrections, state court, Mercer County, Trenton, N.J., reported in Newark Star-Ledger. Sept. 10, 2012.

Retaliatory Personnel Action

    A firefighter claimed that 15 different defendants including members of the fire and police departments had unlawfully retaliated against him for speaking out about issues involving his employer. Claims against some of the defendants were dismissed but the remaining defendants sought to appeal the denial of their motion for qualified immunity. While the appeal notice filed had all defendants' names in the case caption, the text of the notice only referred to one defendant. After the 30-day appeals period had expired, the defendants, without seeking leave from the court, filed another appeals notice, the body of which listed twelve defendants as appealing. That was untimely, and the appeals court lacked jurisdiction to consider their appeal. Gusler v. The City of Long Beach, #11-4493, 2012 U.S. App. Lexis 24264 (2nd Cir.).

Supreme Court - Recent Employment/Labor Cases

     In a federal employee's mixed case against the U.S. Department of Labor asserting claims for age and sex discrimination and discriminatory removal, a federal appeals court improperly upheld the trial court's dismissal for lack of jurisdiction, when the trial court said that the employee should have filed her claim initially with The Federal Circuit U.S. Court of Appeals. A federal employee, who claims that the employing agency's action that can be appealed to the Merit System Protection Board (MSPB) violates a federal antidiscrimination statute, can seek judicial review in a federal district court regardless of whether the MSPB decided her case on the merits or on procedural grounds. Kloeckner v. Solis, #11-184, 2012 U.S. Lexis 9420.

Telephone & Pager Monitoring / Audio & Video Taping

     An Illinois eavesdropping statute violated the First Amendment to the extent that it could be applied to prohibit the open audio taping of police officers in public performing their official duties. Any supposed governmental interest in protecting conversational privacy was not implicated when officers performing their duties engage in communications audible to those witnessing the events. In restricting more speech than necessary to protect legitimate privacy interests, the statute was likely to violate the free speech and free press guarantees of the First Amendment. An injunction against enforcement of the statute was therefore ordered. The U.S. Supreme Court has now declined to review the decision. ACLU of Illinois v. Alvarez, #11-1286, 679 F.3d 583 (7th Cir. 2012), cert. denied, Alvarez v. ACLU, 2012 U.S. Lexis 8999.

Whistleblower Requirements and Protection

     The federal Whistleblower Protection Enhancement Act has been passed into law. The statute expands on the Whistleblower Protection Act of 1989 by strengthening a wide range of protections for disclosures of government wrongdoing. It eliminates loopholes that had resulted in the protection of whistleblowers only when they are the first to report misconduct as opposed to subsequent reporters, clarifies that whistleblowers are protected for challenging the consequences of government policy decisions, and also clarifies that protection of critical infrastructure information does not override protection of whistleblowers under the Act.

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• Report non-working links here

     Body Armor: "Body Armor Use, Care, and Performance in Real World Conditions: Findings from a National Survey," Police Executive Research Forum (PERF) (November 1, 2012).

     Government Secrecy: Government Transparency and Secrecy: An Examination of Its Meaning and Use in the Executive Branch, Congressional Research Service, Nov. 8, 2012.

     Statistics: "Hiring and Retention of State and Local Law Enforcement Officers, 2008 - Statistical Tables," by Brian A. Reaves, Ph.D. (October 29, 2012 NCJ 238251).

     Statistics: "Sheriffs' Offices, 2007 - Statistical Tables," by Andrea M. Burch (December 6, 2012 NCJ 238558).

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 – Administrative Issues
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Jan. 14-16, 2013 - Las Vegas

Jail Liability – Incident Liability
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Mar. 4-6, 2013 - Las Vegas

Management, Oversight and Monitoring of Use of Force
-- Including ECW Operations and Post-Incident Forensics
Apr. 2-4, 2013 – Las Vegas

Lethal and Less Lethal Force
Oct. 7-9, 2013 – Las Vegas

Public Safety Discipline and Internal Investigations
Dec. 16-18, 2013 - Las Vegas

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