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Disability Benefits - Line of Duty

     After his last day of work as a county employee, a man underwent surgery for a work-related spinal injury suffered in 1998. He later filed a claim for work related disability retirement benefits. He was granted those benefits by the county employees' retirement association from the date of the application, but not retroactively for the period before the date of his application. An intermediate California appeals court found that a trial court subsequently erroneously awarded the plaintiff retroactive benefits and prejudgment interest, as he was not entitled to the benefits at issue until he applied for them. Flethez v. San Bernardino Co. Employees Retirement Assn., #D066959, 2015 Cal. App. Lexis 335.

First Amendment

     A police officer involved in two highly publicized incidents involving claims of excessive use of force was fired, and sued, claiming that the city and a safety manager proceeded against him in retaliation for his protected speech in violation of his First Amendment rights. A federal appeals court held that he failed to state claims upon which relief could be granted. As to his argument that the city would not have sought judicial review in state court of a Civil Service Commission decision in his favor if he hadn't made a statement opposing a rule change, the evidence showed that the city had already decided to fire him and appealed the decision before he even made his statement. Nixon v. City & County of Denver, #14-1165, 2015 U.S. App. Lexis 7211 (10th Cir.).

Health Insurance

     A town had adopted the requirements of a state statute under which it had to contribute over 50% of the health insurance premiums of all retired town employees. Before employing the plaintiff, however, the town also adopted a policy under which it only contributed to retirees' group health insurance premiums if an employee retired after at least ten years of service with the town. As a result, the town found the plaintiff ineligible for a contribution to her health insurance premiums when she retired because she had worked for less than ten years. The highest court in Massachusetts found that the state statute governed both whether and in what amounts the town had to contribute to a retiree's health insurance premium, and that the policy requiring a minimum term of service was invalid since it contradicted the statute. Galenski v. Town of Erving, #SJC-11772, 471 Mass. 305, 2015 Mass. Lexis 170.

Injuries to Employees

     Two inmates tried to escape from a state prison and intentionally murdered a guard during the attempt. One of the prisoners had repeatedly escaped from a state juvenile school before entering the prison at age 15, and subsequently made escape attempts in prison. The other prisoner also had previously been found to have been planning an escape attempt. The estate of the deceased guard claimed that prison officials violated his substantive due process rights by failing to protect him against the murder and by having made various decisions to house the two prisoners in the general population, at times allegedly based on negotiations to end hunger strikes. A federal appeals court found that prison officials were properly granted qualified immunity on substantive due process claims. While paperwork was not always completed for discretionary housing decisions for the two prisoners, the warden had the power to move them. The correctional department's policy on warden discretion on inmate housing placement did not shock the conscience, and the warden did not act with deliberate indifference in failing to place the inmates in maximum security or allowing them to hold their prison jobs. Estate of Johnson v. Weber, #14-2383, 2015 U.S. App. Lexis 7327 (8th Cir.).

Pay Disputes

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

     A number of retired D.C. Metropolitan police officers were later rehired by the D. C. Protective Services Division, an agency charged with protecting D.C. owned property and government buildings. They received salaries for their new jobs and pension benefits from their former jobs. A provision of the D.C. statutes, however, aimed at preventing so-called "double dipping," required that their current salaries be reduced by the amount of their pensions. A federal appeals court upheld a ruling that the salary reductions did not violate the Public Salary Tax Act of 939, 4 U.S.C. 111(a), a statute that only permitted states or D.C. to "tax" compensation paid to federal employees if that tax did not discriminate against federal employees. The court ruled that the salary reduction provision was not a "tax" but instead reduced D.C.'s total expenditure on salaries. The amount of the reduction was not collected through normal taxation mechanisms and did not raise revenue, but only lower expenditures. Cannon v. Dist. of Columbia, #14-7014, 2015 U.S. App. Lexis 6320 (D.C. Cir.).

     Diplomatic Security Special Agent employed by the U.S. State Department volunteered to serve one year in Iraq during wartime, arriving there in February of 2004. Because their permanent duty station was then still listed as Washington, D.C., they received, in addition to their base pay, additional "locality pay" designed to equalize the pay of federal employees with non-federal employees' pay in the same area. After their permanent duty station was changed to Baghdad, they no longer received the locality pay, but they did receive significant overtime pay. After they returned to the U.S. in 2005, they were informed that new Office of Personnel Management regulations placed an annual premium pay cap on their compensation of $128,200, and that their pay to date either had already or would soon be over the cap amount, so that the government would seek to collect ay overpayments. They received letters later requesting repayments of amounts ranging from $435.94 to $10,514.98. A federal appeals court rejected an argument that the State Department acted arbitrarily in declining to agree to a discretionary waiver of the employees' obligations to repay the overpayments and found that the Department "permissibly construed" the law at issue, 5 U.S.C. Sec. 5584. Lubow v. Dep't of State, #13-5057, 2015 U.S. App. Lexis 6302 (D.C. Cir.).

Pensions

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

     The state of Illinois has five separate state-funded retirement systems for various public employees, all providing traditional defined benefit plans that were covered by a pension protection clause in the state constitution. The state legislature enacted amendments to the state pension code that lowered the amount of retirement annuity benefits for persons who first became members of four of those retirement systems before January 1, 2011. The Illinois Supreme Court upheld a ruling that the amendments violated the pension protection clause of the Illinois Constitution and therefore should be permanently enjoined. The court commented that it recognized the financial difficulties which state government had recently been facing but that those difficulties did not alter preexisting pension obligations. In re Pension Reform Litig., #118585, 2015 IL 118585, 2015 Ill. Lexis 499.

Retaliatory Personnel Action

     A 51-year-old African American man served in a city fire department since 1986 and was one of two district chiefs of Fire Prevention. At one point, his duties were altered. While he did not receive reduced pay or a reduction in rank, he perceived the realignment as discrimination, which he believed was based on his race, color, or age, in addition to being retaliation for having given a statement supporting an EEOC claim against the assistant chief who altered his duties. A federal appeals court upheld a determination that his lawsuit over the 2011 alteration of his duties was not timely filed. However, even if it had been, he had failed to establish a prima facie case of either discrimination or retaliation either for the 2011 duty alteration or for his subsequent non-selection as District Chief of Inspections in 2012. The roles of the position he held and the job he sought were considered equivalent, and they were not different in working conditions, benefits, or compensation. Jenkins v. City of San Antonio Fire Dept., 14-50483, 2015 U.S. App. Lexis 6510 (5th Cir.).

Sexual Harrassment

     A woman sued a city for sexual harassment under California law, claiming that a police officer harassed her while she was providing phlebotomist services on behalf of the police department while employed by a company that had a contract with the city. A jury found that the plaintiff proved her claim and awarded her $1.5 million, which was subsequently reduced to $1.125 million by the trial judge. Seeking to set the award aside, the city argued that the plaintiff was not entitled to recover because she was not a city employee, special employee, or a "person providing services pursuant to a contract" under a specified state statute. A new trial was later granted based on an argument that the damages awarded were excessive, and the city appealed a denial of its motion that the plaintiff was not able to recover at all. An intermediate California appeals court held that the evidence supported a determination that the plaintiff had standing to recover damages for sexual harassment as a person providing services to the city pursuant to a contract. Further proceedings will occur under the new trial order. Hirst v. City of Oceanside, #D064549, 2015 Cal. App. Lexis 389.

Untruthfulness - Lying to Superiors or Internal Investigators

     The Alaska Supreme Court ruled that the state Police Standards Council reasonably decided that a police officer was not of good moral character when he admitted that he lied and was evasive during an investigation into alleged misconduct that included abuse of alcohol and making sexually offensive remarks to two female officers. This was the basis for revoking the officer's police certificate. Alaska Police Standards Council v. Parcell, #S-15364, 2015 Alas. Lexis 40.

Wrongful Discharge - In General

     A county decided to terminate one of its custodial employees based on perceived poor performance, and did so without providing her with a pre-termination hearing as she claimed she was entitled to under the county's personnel policy and an implied covenant of good faith and fair dealing. The Idaho Supreme Court upheld summary judgment for the defendant county, as the employee failed to show any contractual relationship with the county entitling her to a pre-termination hearing. The evidence showed that she was an at-will employee who could be fired at any time for any reason. Nix v. Elmore County, #41524, 2015 Ida. Lexis 103.

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       Ethics: Developing Ethical Law Enforcement Leaders: A Plan of Action, by Jay Fortenbery, FBI Law Enforcement Bulletin (May 2014).

      Sexual Harassment: The Handling of Sexual Harassment and Misconduct Allegations by the Department's Law Enforcement Components, Evaluation and Inspections Report #15-04, U.S. Department of Justice, Office of the Inspector General (March 26, 2015).

Reference:

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