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Attorney-Client Confidentiality & Ethics

     A police officer challenging his termination for misconduct allegedly involving a public act of masturbation claimed that his due process rights were violated when the city council, before voting to reject an arbitrator's advisory award reinstating him, received advice from a lawyer who was a partner in the same firm that had represented the city at the arbitration hearing. An intermediate California appeals court held that this did indeed violate the employee's due process rights, and compromised the fairness of the proceeding. A new proceeding was ordered, prior to which the council was to obtain independent legal advice. Sabey v. City of Pomona, #B239916, 215 Cal. App. 4th 489, 2013 Cal. App. Lexis 291.

Discovery, Publicity and Media Rights

     A freedom of information law in Virginia granted access to all public records to citizens of the state, but denied access to those who were not state citizens. The U.S. Supreme Court unanimously ruled that this did not violate the dormant Commerce Clause of the Constitution nor the Privileges and Immunities Clause, since that only protects those privileges and immunities regarded as fundamental. McBurney v. Young, #12-17 133 S. Ct. 1709

Disciplinary Punishment -- In General

     A former deputy sheriff challenged his termination which was based on an expunged simple battery conviction in an incident involving a girlfriend. He had been placed on probation and obtained relief from a state law prohibition against firearm possession. He was fired on the basis of the federal law barring those convicted of a domestic violence misdemeanor of carrying a firearm. A California appeals court found that the conviction at issue did not bar him from carrying a firearm under federal law, as it was not a misdemeanor conviction of domestic violence. The civil service commission was directed to either vacate its decision or conduct further proceedings. Shirey v. L.A. County Civil Service Commission, #B238355, 2013 Cal. App. Lexis 355.

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

     A police lieutenant was fired after some alleged misconduct involving alcohol, followed by insubordination and lying during the subsequent investigation. He claimed that he had a constitutionally protected right to continued public employment because the department's rules and regulations stated that probationary employees could be terminated at any time for any reason, but did not use that language as to other employees not on probation. He also claimed that there were procedural inadequacies in his termination. A federal appeals court held that he had no constitutionally protected rights in continuation in his job, since the regulations did not have clear language that was adequate to override the presumption in Illinois of employment at will. Cromwell v. City of Momence, #12-1541, 2013 U.S. App. Lexis 7374 (7th Cir.).

Drug Abuse and Rehabilitation

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

     In Colorado, where recreational use of marijuana is now legal, along with medical use of marijuana, an intermediate state appeals court has ruled by 2-1 that users of either recreational or medical marijuana in the state can legally be fired, despite the fact that Colorado also has a law providing employment protection for doing legal things while off duty. The decision is based on the illegal status of marijuana under federal law. The case involved a private employer who fired a quadriplegic medical marijuana patient for off the job marijuana use. He tested positive for marijuana The court also said that a showing that the drug use impaired job performance was not required. Coats v. Dish Network, #12-CA0595, 2013 Colo. App. Lexis 616, 2013 COA 62

National Security Issues and Security Clearance

     An employee of a federal intelligence agency lost his top secret security clearance after his marriage. He sought to challenge this, arguing that it violated his constitutional rights, arguing that the agency did not take the time to review the facts and had assumed that anything with the name "Islam" associated with it is a subversive terrorist organization. He and his parents and siblings held dual citizenship with Egypt and he believed that his wife held dual citizenship with Jordan. The federal appeals court ruled that it would not review the merits of a security clearance decision, and that it was for the agency to determine how much potential foreign contact and ties it could allow. Hegab v. Long, #12-1182, 2013 U.S. App. Lexia 8411 (4th Cir.).

Health Insurance

     A retired police officer and several retired firefighters challenged a city's decision to reduce the amount of retirement health benefits allegedly promised when they retired. Seeking to resolve the case on nonconstitutional grounds if possible, the appeals court ordered further proceedings to see whether any of the plaintiffs had a specific vested right to certain health benefits based on the terms of the contracts in effect when they retired. In doing so, the trial court should presume that there was vesting unless the contract proves that no such vesting was intended. Marconi v. The City of Joliet, #3-11-086, 2013 IL App (3d) 110865.2013 Ill. App. Lexis 271

     A county did not breach its contractual obligation to provide health insurance benefits to sheriff's office command officer retirees when the contract that provided for them required that payment be made from a specefic fund and made the benefits contingent on adequate funding. The benefits were cut when there were no longer adequate money in the funds to pay for the benefits. While a new fund with more adequate funding had been created, it was a product of a new separate contract, and could not be used to fulfill the obligations imposed by the former contract. James v. Clackamas County Court:, #S059680, 353 Ore. 431, 2013 Ore. Lexis 270.

Whistleblower Protection

     A federal Air Marshal went on television in disguise to criticize various actions and policies of the employing agency. He was removed from his job when another employee with the agency recognized his voice, since the interview with the reporter was deemed an unauthorized disclosure of sensitive security information. The Merit Systems Protection Board upheld his removal from the job by the Transportation Security Administration (TSA). A federal appeals court held that the board had incorrectly determine that the disclosure made fell outside the boundaries of the Whistleblower Protection Act as material prohibited by law from being disclosed. The court ordered further proceedings to examine whether, in fact, the particular information disclosed was specifically prohibited by law from being disclosed. MacLean v. Department of Homeland Security, #11-3231, 2013 U.S. App. Lexis 8485 (Fed. Cir.).

Workers Compensation

     Under California law, a worker's psychiatric injury is not compensable for workers' compensation purposes if it was substantially caused by a personnel action—that is, if 35 to 40 percent of the cause is a personnel action. The plaintiff was a supervising probation officer who was the subject of an internal affairs investigation after another officer filed a complaint with the union accusing him of wrongdoing. A psychiatrist appointed as the medical evaluator of his subsequent psychiatric injury found that it was caused in equal thirds by the coworkers' complaint, which was not a personnel action, by the internal investigation, which was a personnel action, and by the plaintiff's feelings of not being supported by his superiors, which it was disputed as to whether it constituted a personnel action.

     The Workers Compensation Appeals Board accepted the psychiatrist's opinion that the third factor was not a personnel action, and therefore awarded benefits. An intermediate California appeals court annulled this determination, finding that the psychiatrist had no authority to decide what was or was not a personnel action, so further proceedings were required. County of Sacramento v. WCAB, #C067739, 2013 Cal. App. Lexis 311

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     Higher Education: "Higher Education and Local Law Enforcement," By Susan Hilal, Ph.D., and James Densley, Ph.D. , FBI Law Enforcement Bulletin, May 2013.

     Statistics: "Workplace Violence Against Government Employees, 1994-2011," by Erika Harrell, Ph.D., April 11, 2013 NCJ 241349.

Reference:

• Abbreviations of laws, law reports and agencies used in our publications.
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AELE Seminars:

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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