Employment & Labor Law for Public Safety Agencies

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Civil Service

     The highest court in New York ruled that the New York State Public Employment Relations Board erred in finding that the city engaged in an improper employment practice by adopting police disciplinary procedures other than those in its collective bargaining agreement with police officers because the more general Civil Service Law art. 14, on public employees’ collective bargaining, was superseded by the more specific Second Class Cities Law §§ 131 and 133, providing detailed police discipline procedures, so police discipline was not a collective bargaining subject. Such bargaining was now prohibited.  The city's collective bargaining on police discipline did not judicially estop its different procedures because it bargained before a decision that statutory grants of local control made police discipline an improper collective bargaining subject. City of Schenectady v. N.Y. State Public Employment Relations Board, 2017 NY Slip Op 07210, 2017 N.Y. Lexis 3074.

     A federal appeals court overturned a grant of summary judgment to a defendant town on a fire chief’s claim that he was entitled to notice and an opportunity to respond before being terminated. There was disputed evidence sufficient to preclude summary judgment on the issue of whether the chief was a member of the Louisiana civil service and therefore had a property interest in the job entitling him to due process before being fired. Maurer v. Independence Town, #16-30673, 2017 U.S. App. Lexis 17142 (5th Cir.).

     A former FBI agent sued the Justice Department under the Administrative Procedures Act (APa), claiming that the Deputy Attoney General's decision upholding a ruling of the Office of Attorney Recruitment and Management (OARM) that she had not been constructively discharged and denying her back pay was arbitrary and capricious. She had previously filed a lawsuit concerning her employment contending that the Office of Professional Responsibility (OPR) had not conducted its investigation about her complaints as required under applicable regulations and seeking injunctive relief under the APA. The employer's motion to dismiss was granted in the earlier lawsuit, based on the Civil Service Reform Act (CSRA) expressly barring judicial review of claims within the scope of the CSRA. The decision in the prior case, and the exclusivity of the CSRA barred her from relitigating the issues through her latest lawsuit. Turner v. DOJ, #14-3678, 2016 U.S. App. Lexis 2649 (8th Cir.).
    A Centers for Disease Control (CDC) employee working in a bio-terrorism preparedness plan claimed that he was fired in retaliation for reporting perceived public health threats. A federal appeals court upheld the dismissal of the plaintiff's claims under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b) and 2671 et seq., holding that the FTCA claims were barred by the Civil Service Reform Act of 1978, 5 U.S.C. 1101 et seq., which was his sole remedy for his claims. Tubesing v. United States, #15-30347, 2016 U.S. App. Lexis 94 (5th Cir.).
     Six City of Boston police officers fired for testing positive for cocaine have been ordered reinstated with back pay by the Massachusetts Civil Service Commission which held that “the present state of hair testing for drugs of abuse ... does not meet the standard of reliability necessary to be routinely used” to terminate a public employee. In Re: Boston Police Depart. Drug Testing Appeals, #D-01-1409, Massachusetts Civil Service Commission (March 2013).
     A former federal probation officer sued the U.S. government, claiming that he was improperly fired. The reason given for his termination was that he was negligent in the supervision of a convicted defendant who was killed while on release pending sentencing. The Court of Federal Claims' dismissal of the lawsuit for lack of jurisdiction was upheld by a federal appeals court on the basis that the Civil Service Reform Act of 1978 (CSRA) applied to classify the plaintiff as a member of the "excepted service," barring him from pursuing such a lawsuit. The law applies to all branches of the federal government, not just to employees of the Executive branch, as the plaintiff argued. It applied to him as an employee of the Judicial branch. Semper v. U.S., #12-5003, 2012 U.S. App. Lexis 18880 (Fed. Cir.).
    The U.S. government fired a number of employees of executive branch agencies under a statute barring such employment of persons who knowingly and willfully failed to register for the Selective Service as required by law. The employees sued, claiming that the law under which they were fired was an unconstitutional bill of attainder and also amounted to sex discrimination, since only males were required to register for Selective Service. The U.S. Supreme Court ruled that the Civil Service Reform Act of 1978, 5 U.S.C. Sec. 1101 et seq. barred the federal district courts from deciding the case. The employees needed to bring their claim before the Merit System Protection Board (MSPB), despite that board's professed lack of authority to decide constitutional questions, and could then seek review in the U.S. Court of Appeals for the Federal Circuit. Elgin v. Dept. of Treasury, #11-45,183 L. Ed. 2d 1, 2012 U.S. Lexis 4461.
     White House directs all executive branch agencies to streamline the hiring process, eliminating essay-style questions and to use a "category rating" approach. Presidential Memorandum, Improving the Federal Recruitment and Hiring Process, 75 (33) Federal Register 27157-27159 (5/14/2010).
     As a creature of statute, a Civil Service Commission possesses only those powers conferred upon it by law. “Any authority it exercises must find its source within the law pursuant to which it was created, and any action or decision taken by it in excess of or contrary to its authority is void.” Genius v. County of Cook, 1-08-3277, 2010 Ill. App. Lexis 110 (1st Dist.).
     California appellate panel holds that a government employee hired into a position expressly classified as exempt from civil service is not entitled to the protections of the civil service system upon the employee's release from the position, even if a court finds that, based on the duties of the position, it should not have been classified as exempt. Kreutzer v. C&C of San Francisco, #A116389, 2008 Cal. App. Lexis 1355 (1st Dist.).
     Federal court holds that a terminated Kentucky homeland security civil servant must establish with evidence that her Democratic affiliation was a substantial or motivating factor in the decision to terminate her. And if she meets that burden, to avoid liability, the defendants need to show that they would have fired her anyway, even if she were a Republican. Back v. Hall, #07-5934/07-5935, 2008 U.S. App. Lexis 17057 (6th Cir.).
     California appellate court holds that a tie vote by civil service commissioners results in an affirmance of a termination by the department head. Lopez v. Imperial Co. Sheriff's Office, #D051410, 2008 Cal. App. Lexis 1135 (4th Dist.).
     Due to serious overcrowding, the Governor had authority to declare an emergency and to contract with out-of-state private prisons to handle the overload of inmates. Doing so did not violate state constitution's civil service mandate. California Correctional POA v. Schwarzenegger, #C055327, 2008 Cal. App. Lexis 832 (3rd Dist.).
     U.S. Office of Personnel Management adopts a final rule authorizing the use of retention bonuses to keep key federal employees from quitting agencies that are restructuring or relocating their offices. Retention Incentives, 72 (221) Fed. Reg. 64523-528 (Nov. 16, 2007).
     The U.S. Office of Personnel Management has proposed new regulations to govern the use of a critical position pay authority that allows higher rates of pay for positions that require a very high level of expertise in a scientific, technical, professional, or administrative field and are critical to an agency's mission. Proposed Rules: Critical Position Pay Authority, 5 CFR Part 535, RIN 3206-AK87, 2 (79) Federal Register 20440-20442 (Apr. 25, 2007).
     Whether summarily terminated, or just not reappointed after a new constable takes office, deputy constables in Dallas, Texas, are covered by the county's civil service system and cannot be discharged without just cause. County of Dallas v. Wiland, #040247, 2007 Tex. Lexis 149, and Co. of Dallas v. Walton, #04-0631, 2007 Tex. Lexis 147 (Tex. 2007).
     President G. W. Bush delegates the authority to adopt special pay rates for federal employees that remedy recruitment and retention problems and, to designate as critical, certain categories of positions within an agency, that are eligible for higher pay. Executive Order 13415, signed Dec. 1, 2006, FR Doc. 06-9561, 71 (233) Federal Register 70639-70641 (12/5/06). {N/R}
     Georgia's Supreme Court affirms a ruling that 27 civil service deputies, most of them white, were wrongly terminated by the county's new black sheriff. Hill v. Watkins, #S05A2107, 280 Ga. 278, 627 S.E.2d 3, 2006 Ga. Lexis 160 (Ga. 2006). [2006 FP Jul]
     U.S. Office of Personnel Management issues a regulation granting non-DoD agencies direct hiring flexibility for positions that are difficult to fill; the authority ends Sep. 30, 2007. Examining System, C.F.R. §337.204(c) and §337.206(d) and (e), 70 (149) Federal Register 44847 (Aug. 4, 2005). {N/R}
     California Supreme Court overturns a state law and bargaining agreements that incorporates seniority in state service into hiring and promotional decisions. Cal. State Pers. Bd. v. Cal. St. Employees Assn., #S122058, 2005 Cal. Lexis 8225 (Cal. 2005). [2005 FP Nov]
     Illinois appellate court overturns the appointment of a jail director, because her name was not on the list of three candidates certified by the Corrections Board, and the law limits the sheriff's choices to those nominees. "If the sheriff has a problem with the statute, his complaint should be directed to the legislature." Read v. Sheahan, #1-041-04-3225, 2005 Ill. App. Lexis 683 (1st Dist. 2005). {N/R}
     Office of Personnel Management issues regulations to implement the Workforce Flexibility Act of 2004, 5 U.S. Code §5753-54, by enabling recruitment, relocation, and retention incentive payments for federal personnel. 5 C.F.R. 530 and 575 O.P.M. interim regulations, 70 Fed. Reg. 25731 (5/13/05). {N/R}
     Dept. of Defense and the Office of Personnel Management issue proposed regulations to establish the National Security Personnel System (NSPS), as authorized by the National Defense Authorization Act of 2003 (P.L. 108-136). The NSPS governs basic pay, staffing, classification, performance management, labor relations, adverse actions, and employee appeals. In a lawsuit filed in Washington, a national union claims that the DoD violated 5 U.S.C. §9902(m)(3), which requires union involvement in the development of the personnel system. AFGE v. Rumsfeld, #05-CV-00367 (D.D.C., filed 2/23/05). National Security Personnel System Proposed Rules, 70 (29) Federal Register 7552-7603 (14 Feb. 2005). {N/R}
     Dept. of Homeland Security and the Office of Personnel Management issue regulations to establish a new human resources management system. Dept. of Homeland Security Human Resources Management System: Final Rule, 70 (20) Fed. Reg. 5271-5347 (Pub. Feb. 1, 2005). [2005 FP Apr.]
     Civil Service President signs legislation giving federal agency management greater flexibility for the recruitment, training and retention of personnel. It also authorizes additional starting pay and bonuses for workers with needed skills. Recruitment and retention bonuses are contingent on written term agreements, not to exceed four years. Federal Workforce Flexibility Act, Public Law #108-411, adding or amending 5 U.S. Code §§4121, 5334(b), 5362, 5363, 5550b, 5753, 5754, 6303(e) and (f) (2004). {N/R}
     Federal government publishes rules to establish a performance-based pay system for senior-level executives, scientists, and professional employees. Nine criteria will be used in the determination process. Senior Executive Service Pay and Performance Awards and Aggregate Limitation on Pay, 69 (145) Fed. Reg. 45535-45546 (July 29, 2004). {N/R}
     The transfer of several functions from the Civil Service Cmsn. to the city's director of personnel was unlawful. The personnel director is not independent and the purpose of a Civil Service Cmsn. is to protect police department employees from the potential prejudices of management. Seattle Police Officers' Guild v. City of Seattle, #52042-3-I,89 P.3d 287, 2004 Wash. App. Lexis 832 (2004).{N/R}
     California Supreme Court depublishes an appellate court decision that upheld "post and bid" programs established under collective bargaining agreements, which apply to a limited number of appointments and promotions for civil service classifications. Calif. St. Personnel Board v. Calif. St. Employees Assn. L-1000, #C0242437, 114 Cal.App.4th 11, 7 Cal.Rptr.3d 243, 2003 Cal. App. Lexis 1816 (Cal. App. depub.) review granted, 2004 Cal. Lexis 1664 (2004). {N/R}
     H.R 1588-230, which created the Dept. of Defense National Security Personnel System, changes the way the DoD will hire, pay, promote, discipline and fire its 320,000 civilian employees. The legislation effect members of more than 1,300 local bargaining units. {N/R}
     New legislation allows the Defense Department to create its own personnel system for 750,000 civilian employees. Management will have more flexibility in hiring, firing, and promoting employees. H.R.1588, National Defense Authorization Act [for FY-2004], 5 U.S. Code §9901-9904 (2003). {N/R}
     OPM issues a rule allowing federal agencies to hire new workers using a category-based rating system in lieu of the traditional "rule of three" system. U.S. Office of Personnel Management, "Organization of the Government for Personnel Management, Overseas Employment, Temporary and Term Employment, Recruitment and Selection for Temporary and Term Appointments Outside the Register, Examining System, and Training," 68 (114) Fed. Reg. 35265 (6/13/03). [2003 FP Sep]
     U.S. Defense Dept. proposes to eliminate guaranteed annual pay raises and General Schedule step increases, and to change the way that government employees are hired, fired and promoted. S.1166. "National Security Personnel System Act," and H.R.1836. "Civil Service and National Security Personnel Improvement Act." [2003 FP Sep]
     North Dakota woman trooper settles her lawsuit challenging the "Rule of Five." She was rejected for promotion in favor of a lower-scoring male trooper. Malafa v. N. Dak., #2:97cv73 (D.N.D. 1998). [1999 FP 58-9]
     Federal appeals court holds that a state legislature can reclassify positions and remove civil service protections from specified classifications. Employee who was summarily fired after a Nevada law changed has no remedy. Rea v. Matteucci, 1997 U.S. App. Lexis 19769, 13 IER Cases (BNA) 145 (9th Cir.). The court referred to an earlier case which held that a state legislature may modify or abolish any state office. Shamberger v. Ferrari, 314 P.2d 384 (Nev. 1957). [1997 FP 131]
     Promotional candidates who vacate a lower-paying civil service slot should ask for approved leave before accepting a nontenured position. If they are outplaced from the new position before achieving tenure, they may not be able to return to their former slot. O'Connor v. Civil Serv. Cmsn., 33 Mass.App. 979, 651 N.E.2d 863 (1995). [1996 FP 52]
     Louisiana appeals court holds that a municipal civil service commission had the requisite jurisdiction to determine whether a labor agreement was violated when the employer improperly promoted a corrections officer. Bass v. Dept. of Pub. Saf., 655 So.2d 455 (La.App. 1995). {N/R}
     Pennsylvania court prevents giving veteran police officers from other communities a hiring preference; they must take civil service entrance exams on a competitively scored basis. Frat. Order of Police v. City of Pittsburgh, #GD92-19421, 30 (1493) G.E.R.R. (BNA) 1620 (Cm.Pls.5th Dist. 11/24/92). [1993 FP 19]
     Federal appeals court prohibits county from requiring veteran officers to take an entry-level employment exam after their employing entity was transferred to another agency. Carston v. Co. of Cook, 962 F.2d 749 (7th Cir. 1992). [1993 FP 35]
     Manner and legal effect of a civil service appointment as a P/O or F/F under Texas law discussed: Jackson v. City of Houston, 595 S.W.2d 907, 1980 Tex.App. Lexis 3151; Fort Worth, City of v. Harty, 862 S.W.2d 776, 1993 Tex.App. Lexis 2553. {N/R}
     Municipality could not "demote" civil service chief back to former rank because his contract as chief expired; hearing, charges required. Tegzes v. Twp. of Bristol, 472 A.2d 1386 (Pa. 1984).
     Department cannot create non-civil service rank of commander absent an emergency situation. City of Rock Springs v. Police Prot. Assn., 610 P.2d 975 (Wyo. 1980).
     Civil service commissioners continue to serve until their successors are qualified. Cantwell v. City of Southfield, 290 N.W.2d 151 (Mich. App. 1980).
     Home rule community can provide that chief will serve at pleasure of mayor or manager, even though state law affords civil service protection. Mandarino v. Vil. of Lombard, 414 N.E.2d 508 (Ill.App. 1980).
     When a person holding a permanent position in the classified service is removed or discharged by the appointing authority and there is an appeal, no vacancy exists to which a permanent promotion can be made. In the interim, a temporary emergency promotion can fill the need. If an interim promotion is invalid, in the absence of bad faith, dishonesty or fraud, the promoted person is entitled to compensation at the higher pay grade. Adams v. Goldner, 79 N.J. 78, 397 A.2d 1088, 1979 N.J. Lexis 1175.
     Home rule community may transfer police and fire personnel to a general civil service system. West v. Allen, 375 So.2d 758 (La.App. 1979).
     Civil service board can delegate examination functions to chief of department. Letson v. Gadsen Civ. Serv. Bd., 356 So.2d 653 (Ala. App. 1978).
     Experience requirement; effect of "illegal" prior service. Maloney v. Nassau Co. Civ. Serv. Cmsn., 398 N.Y.S.2d 206 (Misc. 1977).
     Federal Court in Alabama rescinds arbitrary promotions; requires merit selection of federal due process basis. International Assn. of Fire Fighters L-2069 v. City of Sylacauga, 436 F.Supp. 482 (N.D. Ala. 1977).
     Change of departments not a "transfer'. Sanderson v. Dept. of Public Safety, 351 So.2d 813 (La. App. 1977).
     City required to adopt civil service system by law, must do so; demotions not permitted without hearing. Grenchik v. State ex rel. Pavlo, 373 N.E.2d 189 (Ind.App. 1978).
     Implied power to modify punishment. City of Minneapolis v. Singer, 253 N.W.2d 150 (Minn. 1977).
     Duty of city to enact enabling ordinance. Higgins v. Salewsky, 562 P.2d 655 (Wash. App. 1977).
     Court challenge to bonus points given to veterans on El Paso civil service exams loses. Rios v. Dillaman, 499 F.2d 329 (5 Cir. 1974).
     Exempt positions discussed. Yocum v. Washington, Civil #8578-74, D.C. Super. Ct.
     New Jersey court affirms right of cities to employ CETA firefighters in derogation of civil service laws. White v. City of Patterson, 348 A.2d 798 (N.J. App. Div. 1975).
     See also: Collective Bargaining; Disciplinary Procedures; Eligibility Lists; Examination Techniques; Homosexual and Transgender Employee Rights; Promotional Procedures.

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