AELE LAW LIBRARY OF CASE SUMMARIES:
Employment & Labor Law for Public Safety Agencies


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Disciplinary & Administrative Investigations

     Monthly Law Journal Article: Investigative Detention of Employees Part One: Criminal Interviews, 2008 (4) AELE Mo. L. J. 201.
     Monthly Law Journal Article: Investigative Detention of Employees Part Two: Non-testimonial Evidence, 2008 (5) AELE Mo. L. J. 201.
     Monthly Law Journal Article: Administrative Investigations of Police Shootings and Other Critical Incidents: Officer Statements and Use of Force Reports
Part One: The Prologue
, 2008 (6) AELE Mo. L. J. 201.
     Monthly Law Journal Article: Administrative Investigations of Police Shootings and Other Critical Incidents: Officer Statements and Use of Force Reports Part Two: The Basics, 2008 (8) AELE Mo. L. J. 201.
     Monthly Law Journal Article: Interagency Memorandums of Agreement for Officer-Involved Shooting Investigations, 2011 (1) AELE Mo. L. J. 501.
     Also see: other relevant topics in this digest, such as: Disciplinary Interviews and Compelled Reports; Disciplinary Searches; Disciplinary Surveillances; Drug Screening; Telephone Monitoring, Audio & Video Taping.
     During an investigation of a state employee suspected of taking unauthorized absences from work and falsifying time records, the employer attached a GPS tracking device to his privately owned vehicle. Evidence obtained from monitoring his travels was introduced at his misconduct hearing, which resulted in his termination. An intermediate state appeals court upheld the employer's action and the use of the GPS device to gather evidence of employee misconduct. The use of the device was reasonable when there were reasonable grounds to suspect the employee of misconduct. While the highest court in New York subsequently ruled that the placement of a GPS device on a car in a criminal investigation required a warrant, People v Weaver, #53, 12 N.Y.3d 433, 909 N.E.2d 1195 (2009), that decision was made in 2009, after the events in 2008 involved in the immediate case. Additionally, the case did not involve a criminal investigation, and the investigating agency could not obtain a warrant for its actions. In the Matter of Cunningham v. New York State Dept. of Labor, #512036, 2011 N.Y. App. Div. Lexis 8335, 2011 NY Slip Op 8529; 89 A.D.3d 1347;933 N.Y.S.2d 432 (3rd Dept.).
     Federal court dismisses a civil action brought by two police officers that were temporarily placed on administrative reassignment and investigated for official misconduct. The reassignment was rationally related to the departmentís interest in ensuring that their officers were in compliance with regulations and the law. Abel v. City of Algona, 2008 U.S. Dist. Lexis 83556 (W.D. Wash. 2008).  
     California appeals panel rejects preliminary injunctive relief because a sheriff's dept. revised its procedures to prevent officers, who were either involved in or witnessed an officer-involved shooting, from consulting with legal counsel and or labor representatives collectively or in groups (two or more officers consulting at the same time with the same legal counsel/labor representative). They may continue to consult counsel individually, or to be represented as a group at a later time. Nothing in the constitution or bargaining laws warrants an injunction against the policy change while the litigation is pending. Assn. L.A. Deputy Sheriffs v. Co. of Los Angeles, #B197611, 2008 Cal. App. Lexis 1460 (2nd Dist.).
     Placement of an officer on paid administrative leave pending the result of a psychological fitness-for-duty evaluation, following a use of force incident, does not constitute a materially adverse action that would support a retaliation claim. Nichols v. So. Ill. Univ., #06-2688, 102 FEP Cases (BNA) 519, 2007 U.S. App. Lexis 29865 (7th Cir.), affirming 432 F.Supp.2d 798.
     Divided panel of the Ninth Circuit rejects a civil rights suit brought by deputies that were required to remain on duty to assist superiors with a criminal investigation of unlawful use of force. They were paid overtime, were allowed to contact counsel and "were not treated like criminal suspects." "A law enforcement officer is not seized for purposes of the Fourth Amendment simply because a supervisor orders him to remain at work after the termination of his shift or to come into the station to submit to questioning about the discharge of his duties as a peace officer." Dissenting judge noted that the deputies "weren't told they were free to leave, and they weren't told they didn't have to answer questions." Aguilera v. Baca, #05-56617, 510 F.3d 1161, 2007 U.S. App. Lexis 29804 (9th Cir.).
     Judge refuses to overturn a $15 million award to three LAPD officers who claimed the City of Los Angeles made them scapegoats for the Rampart corruption scandal, finding there was enough evidence for the jury's conclusion that the city "ruined the lives of three highly skilled" policemen and that superiors "had no probable cause" to arrest the officers.. Harper v. City of Los Angeles, #8:03-cv-00959, Docket items 482 and 427-429 (C.D. Cal. 2006). [2006 FP Jul]
     Ex Florida deputy and his wife awarded $1,231,700 against the county. The plaintiffs were falsely accused of bringing drugs into the jail -- and management allegedly botched the internal investigation. Femminella v. Palm Beach County, Docket #50-204 CA 002604, CFN 20060081517 (15th Circuit Court, Fla.). [2006 FP Jun]
     Federal appeals court rejects suit by a state trooper who was indicted and acquitted of criminal conduct. Even if an I-A investigator made careless mistakes in his testimony, they were corrected or there was a reasonable basis for making them. White v. Wright, #04-1934, 2005 U.S. App. Lexis 20755 (Unpub. 4th Cir. 2005). {N/R}
     U.S. Office of Special Counsel finds that Border Patrol officials failed to uncover managerial negligence during a fraud probe that resulted in disciplinary action against 45 low-level officers. Analysis of Disclosures, Agency Investigation and Reports, Whistleblower Comments, and Comments of the Special Counsel, OSC File Nos. DI-02-0911 and DI-01-1264 (2005). [2005 FP Aug]
     Although it may have been improper for a superior to ask two subordinates to assist him in setting up another corrections officer suspected of smuggling contraband to inmates, the initiation of disciplinary charges for refusing to cooperate in an internal investigation were not arbitrary, and the superior and others were entitled to a summary dismissal of a civil rights suit filed by the officers. Bizzarro v. Miranda, #03-9047, 394 F.3d 82, 2005 U.S. App. Lexis 258 (2nd Cir. 2004). [2005 FP Apr.]
     Reversing a jury verdict, an appellate court finds that the defendants did not violate the First Amendment rights of a motor vehicle inspector by firing him for making persistent, false accusations of sexual harassment. The defendants were entitled to rely on the conclusions of the I-A investigations. Johnson v. State of Louisiana, #03-30087, 2004 U.S. App. Lexis 8840 (5th Cir. 2004). {N/R}
     Bell-Colwell Report on FBI discipline points to deficiencies and software inadequacies. Study of the FBI's Office of Professional Responsibility (2004). [2004 FP May]
     Federal court dismisses a §1983 lawsuit alleging that an internal investigation of alleged misconduct violated their constitutional rights. Keim v. Co. of Bucks, 2003 U.S. Dist. Lexis 13926 (E.D. Pa. 2003). [Dec FP 2003]
     Management had no duty to conduct an I-A investigation where a sergeant saw the misconduct and there were no witnesses who had not been interviewed. City of Cooper City and Broward Co. PBA, 118 LA (BNA) 842, FMCS Case #020814/04630-3 (Hoffman, 2003). [2003 FP Nov]
     Appeals court rejects damage suit brought by a police officer, who was placed on administrative leave with pay for 18 months during an internal investigation after he refused, on Fifth Amendment grounds, to testify to a grand jury about the beating death of a fellow officer. Dwan v. City of Boston, #02-1493, 329 F.3d 275, 2003 U.S. App. Lexis 10440 (1st Cir. 2003). {N/R}
     Federal appeals court dismisses a suit filed by an ex-investigator who was charged with theft, but was never convicted. Probable cause and qualified immunity protected the city and defendants. Savino v. City of New York, No. 02-7108 2003 U.S. App. Lexis 10263 (2d Cir. 2003). [2003 FP Aug]
     Illinois Governor issues executive order creating an Office of Inspector General. E.O. No. 3-2003 (Jan. 23, 2003). [2003 FP Apr]
     In an internal investigation of threats left on a manager's voicemail, an employee may be compelled to give a voice exemplar for comparative purposes; a voiceprint sample is not a testimonial statement and does not implicate the Fifth Amendment. Veazey v. LaSalle Telecom, #1-02-0517, 2002 Ill. App. Lexis 992 (1st Dist. 2002), relying on U.S. v. Dionisio, 410 U.S. 1 (1973), U.S. v. Wade, 388 U.S. 218 (1967) and Peo. v. Davis, 151 Ill. App. 3d 435, 502 N.E.2d 780 (1986). {N/R}
     Police officers were "seized" under the Fourth Amendment when they were threatened with job loss for failing to comply with an order to accompany police supervisors to police headquarters and submit to a blood-alcohol test. Although "threatened only with job loss and not physical force ... all that is necessary to effectuate a seizure is a 'show of authority' which in some way restrains the liberty of a citizen." Grow v. City of Milwaukee, 84 F.Supp.2d 990, at 1002 (E.D. Wis. 2000). {N/R}
     Illinois appellate court reverses a $5+ million verdict to a utility employee for an overly intrusive internal investigation. Management had a right to learn whether he had abused his disability leave, and employers are allowed to access their own records. Schmidt v. Ameritech, #1-01-0463, 768 N.E.2d 303, 2002 Ill. App. Lexis 220 (Ill. App.1st Dist. 2002). [2002 FP Jul]
     Alabama Supreme Court rejects a lawsuit against a city because of an allegedly improper I-A investigation conducted by a private detective agency. Firm was an "independent contractor." Dickinson v. City of Huntsville, #1001271, 2001 Ala. Lexis 426 (2001). [2002 FP Feb]
     Federal court rejects most of a detective's lawsuit challenging a disciplinary investigation, suspension and arrest, because he failed to file a grievance under the mechanism established in the bargaining agreement. A parallel claim against the union for not adequately representative was allowed to stand. Russo v. City of Hartford, #3-97-CV-2380, 158 F.Supp.2d 214, 2001 U.S. Dist. Lexis 14297 (D. Conn. 2001). [2002 FP Feb]
     Federal appeals court reverses a $1.5 million verdict given an NYSP Trooper, who claimed he was unfairly treated during an I-A investigation of his conduct, purportedly in retaliation for his cooperation in an investigation of Troopers in another incident. Diesel v. Lewisboro, #99-7831, #99-7840, 232 F.3d 92, 2000 U.S. App. Lexis 28528 (2nd Cir.). [2001 FP 4-5]
     California Dept. of Consumer Affairs holds that an outside consultant or investigator to conduct an internal affairs investigation, must be either licensed as a private investigator or be an attorney admitted to practice in California, under Business & Professions Code §7521; 14 (6) Mayer & Coble Alert (1999). {N/R}
     Federal court dismisses suit by an ex-officer, charging that his civil rights were violated when internal affairs officers delayed displaying their ID cards, removed his weapon and suspended him. Court approves of the manner of the vehicle stop by an I-A unit. Sanchez v. City of New York, #96 Civ. 7254-SHS, 2000 WL 987288 (S.D.N.Y.). [2000 FP 136-7]
     Federal court refuses to dismiss a sergeant's civil rights suit against investigators who, against his will, took him to a place where they interrogated him for more than 5 hours. Cerrone v. Cahill, #95-CV-241, 84 F.Supp.2d 330, 2000 U.S. Dist. Lexis 1328 (N.D.N.Y.). [2000 FP 83-5]
     Federal appeals court upholds $669,000 in compensatory damages for a negligent internal investigation of employee drug use, accompanied by accusatory statements made by the employer's security manager to coworkers. Court remands action for the imposition of punitive damages. Garcia v. Aerotherm Corp., #98-2214, 1999 WL 1244486, 1999 U.S. App. Lexis 33395 (Unpub. 10th Cir.). [2000 FP 69-70]
     Federal appeals panel affirms liability of an employer for failing to conduct an impartial and thorough investigation of an employee wrongfully accused of drug use. Garcia v. Aerotherm, #98-2214, 1999 U.S. App. Lexis 33395 (10th Cir. 1999). {N/R}
     Federal agency Advisory Opinion holds that outside law firms that assist employers in employment or disciplinary matters are "Consumer Reporting Agencies" and an unedited copy of all reports must be furnished the employee. Full text: www.ftc.gov/os/statutes/fcra/vail.htm [1999 FP 83]
     Arbitrator upholds the summary termination of a police officer who held an exempt rank, and was not entitled to Due Process under the bargaining agreement. BNSF RR v. ASD/TCIU, 111 LA (BNA) 564 (Suntrup 1998). [1999 FP 38]
     Colorado appellate court overturns a $640,000 verdict for an employee and against his employer. Panel holds that an employer cannot be sued for a negligent internal investigation and a failure to promptly exonerate the employee from a sexual harassment complaint. Williams v. Continental Airlines, #95CA0469, 943 P.2d 10, 1996 Colo. App. Lexis 260, 12 IER Cases (BNA) 13. {N/R}
     Federal court rejects a police officer's federal and state claims for grossly negligent investigation; Arizona courts do not recognize a claim for "negligent investigation". Olive v. City of Scottsdale, 969 F.Supp. 564, 1996 U.S. Dist. Lexis 21533, 12 IER Cases (BNA) 1110 (D. Ariz. 1996); unrptd. prior decis. at 1995 WL 599186, 10 IER Cases (BNA) 1467 (1995) and at 12 IER Cases (BNA) 1107 (1996). {N/R}
     Statements made by workers to their employer during the course of an internal investigation are privileged communications and cannot be the subject of a suit for defamation, unless they were made with malice or ill will. Herlihy v. M.M.A., 214 A.D.2d 250, 633 N.Y.S.2d 106 (1995). {N/R}
     Federal appeals court rejects suit by former LAPD asst. chief who alleged an IA investigation violated his first amendment rights. Vernon v. City of Los Angeles, 65 FEP Cases (BNA) 466, 27 F.3d 1385 (9th Cir. 1994). [1994 FP 165]
     IL appellate court declines to hold employers liable because an internal investigation could have been conducted with greater skill. "An employer should have the right to directly confront its employee with allegations of unlawful activity. We will not require employers to finesse their way around direct allegations of criminal activity when confronting such employees in order to avoid making a possibly defamatory statement." Larson v. Decatur, 602 N.E.2d 864, 1992 Ill.App. Lexis 173 {N/R}
     Federal appeals court rejects a negligent investigation claim. The duty of an employer to thoroughly investigate misconduct allegations does not run to the benefit of the alleged offender. Martin v. Baer, 928 F.2d 1067 at 1074 n. 15 (11th Cir. 1991). {N/R}
     California jury awards more than $5 million to four store employees who were detained by internal security investigator. Mangum et al v. Dayton Hudson Corp., Super. Ct., Ventura Co. Cal. (6/18/90). [1990 FP 117]
     Appeals court upholds $531,000 in compensatory and $11,000 in punitive damages for negligent investigation, leading to arrest and prosecution of a police officer for offenses he did not commit. Harden v. San Francisco Transit Dist., 263 Cal.Rptr. 549 (App. 1989).
     Federal appeals court sustains summary judgment for investigators who were sued by employee discharged for theft. Ghebreselassie v. Coleman Security Serv., 829 F.2d 892 (9th Cir. 1987).
     Police officers have no legal right to insist that internal affairs complaints be investigated by other sworn police officers. Caruso v. Ward, 516 N.Y.S.2d 881 (Misc. 1987).
     Federal court dismisses a suit by two NYPD officers who were detained, by internal affairs investigators, on suspicion of a citizen shakedown. The officers had to be kept within view to prevent the destruction of evidence. Sponito v. City of N.Y., 1986 U.S. Dist. Lexis 24966, 1986 WL 6158 (S.D.N.Y.); aff'd w/o opin., 805 F.2d 391, 1986 U.S. App. Lexis 37178 (2d Cir.). {N/R}
     Montana Supreme Court recognizes the "tort" of an employer's "negligent investigation". It affirmed a jury verdict of $150,000, because management failed to interview key witnesses before sustaining the termination of the plaintiff. Crenshaw v. Bozeman Deaconess Hosp., 693 P.2d 487, 118 LRRM (BNA) 2076 (Mont. 1984).
     Police officer could seek injunctive relief against internal affairs investigation and disciplinary interrogation when he sufficiently pleaded political harassment and bad faith. Buege v. Lee, 373 N.E.2d 427 (Ill.App. 1978).
     Employee awarded $246,000 for emotional trauma following employer's probe of theft. Koenig v. General Foods Corp., #L-41259- 75, Hackensack, N.J. (1977), appealed at 403 A.2d 36, 168 N.J. Super. 368.
     Illinois Appellate Court allows public employees to challenge proposed polygraph examination order; political revenge alleged. Buege v. Lee, 372 N.E.2d 427 (App. 1978).
     Dismissal because chief consulted with his attorney was improper; reinstatement and back pay awarded. Lee v. Ridgdill, 444 F.Supp. 44 (M.D. Fla. 1977).
     Police chief could order 62 officers to stand in a lineup, to be observed by citizens who observed misconduct by a few uniformed officers. Biehunick v. Felicetta, 441 F.2d 228 (2nd Cir. 1971), cert. den. 403 U.S. 932, 91 S.Ct. 2256. {N/R} Note: criminal suspects may not be "rounded up" for the purpose of being forced to stand in a lineup; Davis v. Miss., 394 U.S. 721. {N/R}
     See also: Disciplinary Evidence; Disciplinary Punishment.


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