FEATURED CASES
WITH LINKS TO THE OPINIONS

The New Jersey Supreme Court has ruled that public officials may not terminate a lawyer who serves a fixed term or who cannot be removed except for cause.

Although private attorneys in all states can be dismissed by their clients without any reason, the attorneys' Code of Professional Responsibility may not apply to public sector lawyers who are civil service or are appointed for a fixed term.

The issue concerns the American Bar Association's Code of Professional Responsibility Disciplinary Rule 2-110(B)(4), which was adopted in 1971 and modified in 1984. It provides:

"A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment, if ... (4) He is discharged by his client."

In 1979 the American Bar Foundation published an Annotated Code of Professional Responsibility, which added:

"DR 2-110(B)(4) states that the lawyer must withdraw if he or she is discharged by the client. ... An exception has been made for public counsel (county counsel) whose office was created by the legislature and whose term of office was fixed by statute. Unless good cause exists, such counsel may not be discharged or removed from office before the end of his or her term. Pillsbury v. Board of Chosen Freeholders, 133 N.J. Super. 526, 337 A.2d 632 (1975), aff'd per curiam, 140 N.J. Super. 410, 356 A.2d 424 (1976)."

The public-sector exception has been recently affirmed by all seven members of the New Jersey Supreme Court. They held that a newly elected county board could not replace the County Counsel, who was entitled to finish his statutory term of three years. Coyle v. Board of Chosen Freeholders of Warren County, #A-110 Sept. Term 2000, 170 N.J. 260, 787 A.2d 881, 2002 N.J. Lexis 1 (2002).

• Click here to read the court's opinion on the N.J. judicial site.

Editor's Note: When sued, police chiefs and officers, sheriffs and deputies, and corrections officials and correctional officers are usually referred to an elected or appointed legal officer, or a law firm hired by the entity or its insurance carrier. An individual defendant can employ his or her own attorney of choice, but is not entitled to reimbursement unless a statute or bargaining agreement provides that right.

In some cases police officers and other public employees have been represented in a lawsuit by a union attorney, such as the FOP counsel. This may be a necessity, because of a conflict of interest. A federal appeals court held in one case, that government attorneys could not represent employee and employer in the same suit -- citing a conflict of interest between management and employees. Dunton v. County of Suffolk, 729 F.2d 903 (2nd Cir. 1984).

If the union pays a lawyer to represent the employee, the union controls the lawyer's activities. In one case, a union member was precluded from suing his union-provided attorney for malpractice. Because the union selected and compensated the attorney; there was no attorney-client relationship. "Although the attorney may well have certain ethical obligations to the grievant, his principal client is the union; it is the union that has retained him [and] is paying for his services ..." Peterson v. Kennedy, 771 F.2d 1244/at 1258 (9th Cir. 1994).

• The ABA's Model Rule of Professional Conduct 1.13 (2001) governs attorneys who represent an "organization" as their client, and potential conflicts with an employees of the organization.

• Click here to view a state-by-state list of Attorneys' Codes of Professional Responsibility.

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Supreme Court declines to review an appellate holding that rejected federal death benefits for the widow of a police officer who killed himself due to job-related stress.

A 43-year-old police officer fatally shot himself in 1992 after being falsely accused of "engaging in sexually inappropriate behavior" with a ten-year-old boy he counseled as a youth safety officer for a Boston suburb.

A psychologist and psychiatrist concluded his suicide was job-incurred. The city's retirement board awarded his widow duty-related pension benefits.

She also sought federal benefits for police officers that are killed in the line of duty. The 1976 statute provides a one-time cash payment to survivors of public safety officers who die in the line of duty. Section 3796(a) states:

"In any case in which the Bureau of Justice Assistance ... determines, under regulations ... that a public safety officer has died as the direct and proximate result of a personal injury sustained in the line of duty, the Bureau shall pay a benefit of $100,000*.

"For a survivor or survivors to qualify for the payment, the public safety officer (1) must have suffered a 'personal injury' within the meaning of the Act, (2) the injury must have been suffered 'in the line of duty,' and (3) the death must have been 'the direct and proximate result' of the personal injury ...

"No benefit shall be paid ... if the death or catastrophic injury was caused by the intentional misconduct of the public safety officer or by such officer's intention to bring about his death or catastrophic injury ..."

A BJA Hearing Officer approved the claim, writing that the officer's "post traumatic stress disorder and major depression qualify as personal injuries." He said they were "traumatic injuries, wounds inflicted upon his mind, triggered by the allegation of sexual misconduct, an external force." He also concluded that the officer's impaired mental state rendered his suicide unintentional.

However, the Director of BJA reversed the Hearing Officer's decision and the widow filed suit in the U.S. Court of Claims. A three-judge appeals panel affirmed the denial of benefits, noting that traumatic injury' was "defined as a wound or the condition of the body caused by external force, including injuries inflicted by bullets, explosives, sharp instruments, blunt objects or other physical blows, chemicals, electricity, climatic conditions, infectious diseases, radiation, and bacteria, but excluding stress and strain."

Because 28 C.F.R. § 32.2(g) (1997) specifically exclude stress and strain from the definition of "personal injury" her lawsuit was dismissed by the appellate court. The widow appealed to the Supreme Court.

Solicitor General Theodore Olson (whose wife died on a Sept. 11th hijacked airplane), argued that the Congress emphasized the physical risks posed to officers, but did not mention mental dangers.

Lawyers for the widow unsuccessfully argued that mental injuries such as post-traumatic stress disorder and depression should be included.

The U.S. Supreme Court denied review, without comment.

Yanco v. U.S., #00-5058, 258 F.3d 1356 (Fed. Cir. 2001); rev. den., #01-674, 122 S.Ct. 921, 2002 U.S. Lexis 530 (2002).

* Note: Pub. L. 107-56 (H.R. 3162), the USA Patriot Act, increased to $250,000 the death benefit for public safety officers killed or permanently disabled in the line of duty. It is retroactive to Jan. 1, 2001, so that the families of firefighters and police officers that were killed in the Sept. 11th attacks will be compensated at the higher rate.

• Click here to read the appellate court decision on the FindLaw site.

• Click here to view the Public Safety Officers' Benefits Act of 1976 (as amended), 42 U.S. Code §§ 3796-3796c.

• Click here to see the full text of the qualifying regulations of the DoJ's Bureau of Justice Assistance, 28 C.F.R. § 32.2(g).

• Click either link to read BJA's Fact Sheet "Public Safety Officers' Educational Assistance Program" in plain text (ASCII) or in Adobe Acrobat format.

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Federal court in Philadelphia allows a terminated officer to view disciplinary records of coworkers to prepare his discriminatory discipline lawsuit. Court enters a protective order to preserve the privacy of those whose files were sought.

A police officer in Pennsylvania was fired for forgery and theft; the charges were later dismissed. He sued, in federal court, for religious discrimination, and claimed that he was terminated because of his Muslim religious beliefs and to retaliate for his having been named as a witness in two other lawsuits against the agency.

During the course of pretrial discovery, he sought "all disciplinary records (including allegations that were determined to be unfounded) and the arrest and convictions" of twelve named PHA officers."

Management agreed to produce disciplinary information on disciplined officers but not others, because of privacy concerns.

The judge said the objection was "well placed." Discovery production would be ordered, but the plaintiff and his attorney must maintain the information in confidence, to utilize it only for purposes of the litigation and to "return or destroy it at the conclusion of the litigation."

Morrison v. Philadelphia Housing Auth. Police, #00-2847, 203 F.R.D. 195, 2001 U.S. Dist. Lexis 11272 (E.D. Pa.).

• Click here to view the opinion on AELE's website.

Federal court in Kansas orders discovery of five years of I-A dispositions in a suit by two officers who allege they were disciplined in retaliation for their free speech.

A former detective sergeant and the chief of detectives in Kansas sued the city, the city manager and the former chief of police for retaliating against them for exercising their rights of free speech.

In the discovery interrogatories, they asked the city to identify all officers who were the subject of an internal affairs investigation for inattention to duty and other minor offenses -- and dispositions.

The city objected because of the burden and confidentiality of the records. The court weighed that burden, and ruled for the plaintiffs. The judge noted that city could reduce the time it takes to review past I-A files if it elects to produce the files.

The city also claimed that disclosure would chill "frankness and truthful testimony by officers as well as complainants during the Internal Affairs process." Confidentiality "allows citizens to lodge such complaints without the fear of their identity being disclosed when they wish to remain anonymous."

The magistrate judge discounted the confidentiality objection. The plaintiffs' motions to compel were granted, subject to a protective order prohibiting disclosure except as necessary for the litigation.

Beach v. City of Olathe, #99-2210-GTV, 203 F.R.D. 489, 2001 U.S. Dist. Lexis 16215 (D. Kan.).

• Click here to view the opinion on AELE's website.

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Federal appeals court declines to set aside a damage award for a police lieutenant who was fired, without a hearing, on bogus sexual misconduct charges.

Three women alleged that an Arkansas police lieutenant arranged reductions of jail time for sexual favors. The city fired the lieutenant, and the Arkansas Democrat-Gazette printed the lurid accusations.

The dismissed officer sued in federal court, alleging that he was denied procedural due process when he was terminated without an adversary hearing. The women later recanted their claims, and the city admitted the error.

The District Court ruled in favor of the defendant mayor and prosecutor -- but found municipal liability and damages were awarded. The city appealed.

The Eighth Circuit noted that an at-will employee may be summarily fired, citing Bishop v. Wood, 426 U.S. 341 (1976). However, an exception arises when the termination is accompanied by unfavorable publicity; Codd v. Velger, 429 U.S. 624 (1977).

A non-tenured public employee is entitled to a name-clearing hearing if he or she denies the charges and the employer is responsible for the publicity.

The three-judge panel rejected the city's defense that the reason for the termination was disclosed by the prosecutor, not the mayor. The mayor had discussed the allegations with a news reporter.

Because the District Judge did not make specific findings, the appellate panel remanded the action to the lower court. Speer v. City of Wynne, #00-3776, 276 F.3d 980, 2002 U.S. App. Lexis 552 (8th Cir. 2002).

• Click here to read the appellate court's opinion on the FindLaw site. [PDF format]

Appeals court concludes that an 8-month period between a suspension without pay and his subsequent reinstatement was not adequate to prevent liability for denying an officer a pre-deprivation hearing.

An on-duty white male police officer claimed he was shortchanged by a black female fast-food employee. He attempted to arrest her, and used pepper spray to subdue her.

Members of the minority community complained, and one month later, the officer was charged criminally with assault, attempted assault, criminal trespassing, and disorderly conduct. He was found not guilty on all counts.

The officer was suspended with pay and ordered to submit to a psychological test, which he passed. When the criminal charges were brought, he was re-suspended without pay. The chief later terminated the officer, and the union grieved.

The arbitrator found that the officer's suspension without pay was improper and sustained the grievance. He also found that the grievant should be reinstated. A subsequent court appeal sustained that award.

The officer sued the chief, the city, and others -- claiming the suspension without pay was not accompanied by a prompt predeprivation hearing.

The city claimed no hearing was necessary because of the criminal charges. The Ohio Court of Appeals disagreed, 2-to-1. They noted that the U.S. Supreme Court upheld management's right to immediately suspend, without pay, an officer charged with a felony. Gilbert v. Homar, 520 U.S. 924, 117 S.Ct. 1807 (1996).

However, the Justices stressed that there must be a prompt post-suspension hearing. The arbitration proceeding was almost eight months later. The majority said that "even if the arbitration procedure amounted to a post-deprivation hearing, it was not sufficiently prompt."

The officer "was entitled to that forum to invoke [the chief's] discretion, his sense of fairness and mutual respect, and his willingness to reconsider." They added that "the outcome of the subsequent criminal prosecution might indicate that a hearing could have been productive for [the officer]."

They said that a jury might find that the city violated his due process rights when it failed to conduct a pre-deprivation hearing before it discontinued his pay. "Subsequent proceedings before the arbitrator that resulted in back pay for this deprivation were not an effective substitute."

A dissenting justice thought the arbitration proceeding was sufficiently prompt to cure the lack of a pre-deprivation hearing.

McDonald v. City of Dayton, #18721, 2001 Ohio App. Lexis 5150, 18 IER Cases (BNA) 125 (Ohio App. 2d Dist. 2001).

• Click here to read the Dayton decision on AELE's website.

»Editor's Comment: A brief "Loudermill" type pre-deprivation hearing would have prevented this lawsuit and the likelihood of having to pay damages and attorney's fees. Such hearings need not be either long or formalistic. http://laws.findlaw.com/us/470/532.html

Many law enforcement agencies have a rule which, in the absence of a felony or exigent circumstances, requires supervisor approval to make an arrest where the officer is the crime victim. For example, the Colorado Springs, Colo. Police Dept. Operations Manual, Order No.1655.40 (05/16/2001) reads as follows:

"Officers shall not make arrests in any quarrel in which they are personally involved, or in which any member of their family is involved, except under grave circumstances such as would justify using measures of self-defense. Officers shall not apply for a warrant for an assault upon themselves, or make complaint for damages, without the knowledge of the Chief of Police or designee."

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Appellate court in New Orleans articulates the role of a civil service commission in reviewing the punishment that has been imposed by the chief of a department.

Although the New Orleans Civil Service Commission has the authority to modify a penalty, a reviewing board can reduce a penalty only when there is "insufficient cause for imposing the greater penalty."

The three-judge panel noted:

"It is not the job of the Commission to decide who should be disciplined or how. The appointing authority is the one who must run the department, an obviously necessary part of which is dismissing or disciplining employees."

It is the responsibility of the chief to dismiss or discipline an employee for sufficient cause. The panel said:

"Where there is a sufficient basis for the imposition of the disciplinary action, the Civil Service Commission may not substitute its judgment of what the proper penalty should be for the penalty imposed by the appointing authority based on what the Civil Service Commission perceives to be mitigating factors."

Shepack v. New Orleans Police Dept., 2000-CA-1345, 791 So.2d 733, 2001 La. App. Lexis 1593 (La.App. 4 Cir., 05/16/01)

Editor's Note: There are at least three types of civil service and personnel boards or commissions:

1. A disciplinary-style board or commission makes the formal determination of conduct violations and imposes the punishment. Management can suspend an employee, but only makes recommendations concerning punishment. The Police Disciplinary Board in Chicago is of this type.

2. A reviewing-style board or commission examines the correctness of the disciplinary action imposed by management, and provides oversight on the penalty. The Civil Service Commissions in Boston and New Orleans are of this type. Management can judicially appeal a reduction of penalty by their commissions. Police Cmsnr. of Boston v. Civil Service Cmsn., 22 Mass. App. 364, 494 N.E.2d 27 (1986); Chapman v. Dept. of Police, 706 So.2d 656, 658 (La.App. 4 Cir. 1998).

3. Although unusual, some boards and commissions may have hybrid powers to review punishment and to impose substitute punishment.

• Click here to view the opinion on AELE's website.

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Federal appeals court affirms the termination of an unmotivated black trooper who failed to spell correctly, even though he was not given remedial tutoring but an unsuccessful white trooper was tutored.

Two probationary state troopers were terminated because of writing deficiencies, one was white, one was black. The black officer sued, because the white officer had been given remedial tutoring for more than six months, and he had not. He admitted his deficiencies, but claimed disparate treatment because of race.

After two appeals, the Seventh Circuit affirmed the termination. Remedial tutoring was given the white officer who "was nearly illiterate." The plaintiff was a college graduate, but lacked motivation. An instructor wrote him a note "If you are having trouble ask for help," but he declined to do so.

Although African-American probationary officers were terminated at a somewhat significantly higher rate than whites (25% vs. 2.5%), the plaintiff was not qualified for a permanent position.

The Magistrate's finding the panel affirmed had noted that the plaintiff was not in need of tutoring, but rather motivation -- "motivation to follow through on his rewrite assignments, and motivation to follow instructions designed to help him improve his report writing."

Kidd v. Illinois State Police, #97-2835, 2002 U.S. App. Lexis 724 (Unpublished order, 7th Cir.), affirming 138 F.Supp.2d 1047, 2001 U.S. Dist. Lexis 8162 (N.D. Ill. 2001).

• Click here to read the appellate court's unpublished Order and the Magistrate's published decision on the AELE website.

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Fourth Circuit holds that FBI agents could not rely on a roommate's consent to search password-protected files in a computer they shared.

Notra Trulock was Director of the Office of Intelligence of the U.S. Dept. of Energy from 1994 to 1998. From 1995 to 1998, he also served as the DoE's Director of the Office of Counterintelligence.

He uncovered evidence that Chinese spies had systematically penetrated U.S. weapons laboratories, at Los Alamos and elsewhere. Trulock contends that the White House, the FBI, and the CIA ignored his repeated warnings about the espionage. Congress eventually learned of the security breach and Trulock had testified on several occasions. His prepared statement is on the Internet.

He was demoted and ultimately forced out of the DoE in 1999. He then published an article that accused officials of incompetence in their investigation of espionage at the Los Alamos Lab. FBI agents began an investigation of Trulock and went to his Virginia home, seeking classified documents. They gained entry, by allegedly bullying his roommate, with whom Trulock shared a computer. They removed the hard drive, and opened his password-protected computer files.

Trulock sued and the District Court dismissed the complaint. A divided panel of the Fourth Circuit reversed in part. The panel said that password-protected files on a shared computer are analogous to a locked footlocker left in a shared living space. A person has a reasonable privacy expectation that a password will protect their documents like a lock on a cabinet.

However, two of the three panel members gave the defendants qualified immunity, because the agents did "not violate clearly established statutory or constitutional rights of which a reasonable person would have known," citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727 (1982).

The dissenting judge said that "The defendants in this case should have known that they had no right to search Trulock's password-protected computer files, and thus they should not be given qualified immunity." Trulock v. Freeh, #00-2260, 275 F.3d 391, 2001 U.S. App. Lexis 27341 (4th Cir. 2001).

o Click here to read the appellate court's decision on the FindLaw website.

Editor's Note: In February we reported that the Second Circuit upheld a multi-step search of the computer issued to a state employee, who was later demoted for loading tax returns related to his secondary occupation. Leventhal v. Knapek, #00-9306, 266 F.3d 64. 2001 U.S. App. Lexis 21303, 17 IER Cases (BNA) 1697 (2nd Cir.). Click here to view that article.

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Arbitrator denies an overtime claim to an officer who was ordered to wear a pager while waiting to be called to court.

A police officer who was subpoenaed to testify in a criminal trial, was denied overtime for the waiting time while on call with a pager. The union filed a grievance which proceeded to arbitration.

The officer had been instructed by the chief to carry the pager, which somewhat limited his ability to travel and prevented him from consuming alcoholic beverages. The Bargaining Agreement required the employer to pay for stand-by time, which was not defined.

The Fair Labor Standards Act requires employers to pay for "standby time" distinguished from "on call" time. The latter may be excused, depending on the restrictions on a worker's personal time.

Management claimed the time was not compensable because the grievant was "waiting to be engaged." The officer was free to go about his usual activities with a minimum of restriction on activities for his own benefit.

The arbitrator noted that the case law distinguishes "waiting to be engaged" from "engaged to be waiting." Engaged to be waiting is a situation where the freedom of the employee is so restricted that the worker should be compensated. "Waiting to be engaged is where the idle time is primarily to the employee's benefit and is not compensable.

He said that "Engaged to be waiting requires a finding of almost no freedom at all ... That is clearly not the case here." As to the restrictions in this case, he asked:

1. Were the functions performed while waiting are similar to work time activities? They were not.

2. Was the response time to go to court unduly restrictive? It was not.

3. Did the pager ease his restrictions? It did.

4. Could the officer refuse the court call? He could not.

5. Was the geographical restriction excessive? It was not.

6. Was the employee able to engage in personal activities during this time? He was.

7. Did the frequency of the calls restrict the employee? It did not.

The grievance was denied. City of Washington and FOP, FMCS #01/13235, 116 LA (BNA) 686 (Szuter, 2001).

Editor's Note: Most overtime claims are brought in federal court and involve significant sums of money. This case involved only a few days of allegedly compensable standby time. What also is unusual, is that the issue was raised in the context of a grievance. Even if even if successful, the costs of arbitration are typically split between the union and the employer.

• Click here to read the arbitrator's decision on the AELE website.

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U.S. Dept. of Justice issues Guidance to avoid national origin discrimination, and warns that "English Only" laws offer no protection from liability.

A new DoJ document on Limited English Proficiency (LEP) implements Executive Order 13166 signed by President Clinton in August, 2000. It applies to recipient of federal financial assistance, including:

• Police and sheriffs' departments

• Departments of corrections

• Courts

• Certain nonprofit agencies with law enforcement missions.

According to the Guidance, "LEP persons that are eligible to be served or encountered by these recipients include, but are not limited to:

• LEP persons who are in the custody of the recipient, including juveniles, detainees, wards, and inmates.

• LEP persons subject to or serviced by law enforcement activities, including, for example, suspects, violators, witnesses, victims, and community members.

• LEP persons who are not in custody but are under conditions of parole or probation.

• LEP persons who encounter the court system.

• Parents and family members of the above."

DoJ notes that Title VI applies to the entire program or activity of a recipient, "even if only one part of the agency uses the federal assistance." For example, if the DoJ improves a particular prison facility, then the "entire state department of corrections -- not just the particular prison -- are covered by Title VI."

The DoJ warns that state or local English-only laws "do not change the fact that recipients cannot discriminate in violation of Title VI." All recipient entities should follow the "Four Factor" test in determining which languages to use.

1. The number or proportion of LEP persons served or encountered.

2. The frequency that individuals come in contact with a program.

3. The importance of the program, activity, or service.

4. The resources available to the state or local agency.

The DoJ does not mandate the employment of bilingual or multilingual employees or interpreters. Agencies can arrange for contract interpreters or use community volunteers.

DoJ advises that reliance on a individual's friends and family members sometimes creates problems, because he or she may feel uncomfortable revealing sensitive or embarrassing information to a family member or friend (such as a sexual assault).

Guidance to Federal Financial Assistance Recipients Regarding Title VI: Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 66 (10) Federal Register 3833-3848 (Jan. 2001).

• Click here to read the Guidance on the DoJ website.

• Click here to read Executive Order 13166.

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Second Circuit upholds a $400,000 award against a sheriff and chief deputy who repeatedly mistreated a deputy who had supported an opposition candidate.

A deputy in a N.Y. Sheriff's Dept. decided to support an opponent in the sheriff's race. After the incumbent won reelection, she claimed that he retaliated by yelling at her, repeatedly criticizing her for minor actions and refusing her a backup during a difficult arrest; other officers allegedly began to shun her. She said the sheriff's conduct "caused her stress so that she cried excessively, was sick to her stomach, had diarrhea, and avoided going to work."

She sued in federal court for retaliation and a jury awarded here damages of $400,000 ($200,000 each against the sheriff and chief deputy). The district court denied the defendants' motions for a new trial.

On appeal, the defendant's argued that the events were trivial, and at most were "incidents that normally occur in a working environment."

A three-judge appeals panel disagreed:

"Although defendants have attempted to minimize and isolate the experiences about which [the plaintiff] testified, the jury was entitled to conclude that [she] adequately described a pattern of nearly constant harassment by her supervisors that took place over a period of several years. ...

"We are extremely mindful that a merely discourteous working environment does not rise to the level of First Amendment retaliation. However, we do not believe that is what took place in this case."

Trivial indignities are actionable if they persist over a period of years. She proved an actionable claim of retaliation for exercising her First Amendment right to support another candidate.

As for the size of the verdict, although she lacked economic losses or physical injuries, the jury fairly assessed the degree of mistreatment and the verdict was affirmed. Phillips v. Bowen, #00-7525, 278 F.3d 103, 2002 U.S. App. Lexis 980, 18 IER Cases (BNA) 397 (2nd Cir.2002).

• Click here to read the appellate court's opinion on the FindLaw site.

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Arbitrator sustains an officer's dismissal. His claim that a farmhouse was a second home and that he and his wife shared a condo with his mother-in-law was not credible. Although five or six surveillances, over a three-month period, were not enough proof, a statement from the in-law and various documents proved the city's case.

A Columbus police officer was fired for violating the city's residency requirement. Several surveillances revealed he lived in a $150,000 farmhouse in another county. In various documents, he or his wife listed that address as his residence.

His mother law initially gave a statement indicating the officer did not live with her in the city; she later recanted that statement.

At the arbitration hearing, the grievant claimed he was busy fixing a fence at his second home, and that having a farmhouse is not a violation of the city's requirements. The arbitrator found that the surveillance evidence was inconclusive; he was observed at the farmhouse only five or six times over a three month period.

However, he was never observed at mother-in-law's condo in the city, and the farmhouse address was used on automobile lease application, marriage license, and on employment application completed by officer's wife. Although I-A investigators asked leading questions, the arbitrator found that they did not coerce the mother-in-law. Her initial statements that the grievant did not live with her were more believable than her later statements. The grievance was denied.

City of Columbus and FOP L-9, FMCS Case #00/01343, 116 LA (BNA) 586 (Kohler, 2001).

• Click here to read the award on AELE's website.

Editor's Comment: Because dual residencies are allowed, I-A investigators need to make more than 5 or 6 surveillances, unless (as was the case here) there are documents that conclusively demonstrate that the non-complying home was the principal residence

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A divided federal appeals panel affirms the termination of an FBI agent who, during the I-A interview, significantly understated the number of times he had misused a Bureau vehicle. It was unnecessary to prove an intent to deceive his superiors.

The FBI removed an agent for lack of candor during an administrative interview. He had admitted to using a Bureau car to pick up his daughter from a daycare facility on three occasions. The daycare records revealed that he took or dropped off his daughter fourteen times; the agent then recanted his original statement.

At a hearing for the Merit Systems Protection Board, an administrative law judge reversed the FBI's removal action. He held that an agency must prove that an employee "knowingly supplies incorrect information with the specific intent of defrauding, deceiving, or misleading the agency."

He concluded there was insufficient evidence to show that the agent intentionally withheld the truth with an intent to deceive. The full Board reversed the judge's initial decision but mitigated the penalty to a 120-day suspension. The FBI appealed.

The Federal Circuit noted that a lack of candor and falsification are different. Falsification involves an affirmative misrepresentation, and requires intent to deceive." Lack of candor is a "more flexible concept" and may involve a failure to disclose facts that should have been revealed.

Bureau regulations state, "The employee must be entirely frank and cooperative in answering inquiries of an administrative nature." FBI Manual of Administrative Operations and Procedures Part I, Sec. 13, 13-4.

The agent's termination was sustained, by a 2-to-1 vote. The majority said that a "lack of candor is established by showing that the FBI agent did not 'respond fully and truthfully' to the questions he was asked ..." It was not necessary to prove an intent to deceive.

The dissenting judge conceded that each federal agency "can define its own charges." However, a prior opinion in the Boyd case seemed to conflict with the majority's holding. See Boyd v. Dept. of Justice, #DA07528110478, 14 M.S.P.R. 427, 1983 MSPB Lexis 1565 (1983); aff'd (w/o opin.) #83-894, 1983 U.S. App. Lexis 13917, 727 F.2d 1117 (Fed. Cir. 1983).

In Boyd, the FBI brought two distinct charges: lack of candor (based upon an I-A interview) and falsification (of his daily attendance cards). The M.S.P.B treated the two charges as separate and distinct, and sustained the lack of candor charge but not the falsification charge. Ludlum v. Dept. of Justice, #01-3093, 278 F.3d 1280, 2002 U.S. App. Lexis 1128 (Fed.Cir. 2002).

• Click here to view the Federal Circuit's split decision on the FindLaw website.

• Click here to view the reversed M.S.P.B. decision.

Editor's Comment: An agency is free to redefine its disciplinary offenses and the elements of each offense. Before disciplinary action can be revised, all employees must be notified of the changes and, where applicable, the changes may have to be first negotiated with any recognized unions before the revisions are implemented.

See U.S. Dept. of Justice v. FLRA., 975 F.2d 218 & 995 F.2d 46 (5th Cir. 1992) [Justice Dept. not required to bargain with INS agents over revised internal security practices] and INS and AFGE, #DA-CA-30370, 1999 FLRA Lexis 201, ALJ Dec. No. 144, 55 FLRA 93 (9-17-1999) [holding that there is a duty to negotiate a policy change before it is implemented].

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Arbitration Procedures

Supreme Court holds that an agreement to arbitrate all employment disputes does not preclude the EEOC from filing a damage suit in behalf of the employee. EEOC v. Waffle House, #99-1823, 122 S.Ct. 754, 2002 U.S. Lexis 489 (2002).

Ninth Circuit rules that if a union fails to bring a lawsuit to compel the arbitration of a grievance, following an employer refusal to process that grievance, the employee can bring a lawsuit directly against the employer. Sidhu v. The Fletco Co., #00-15567, 279 F.3d 896, 2002 U.S. App. Lexis 1720 (9th Cir. 2002).

Attorneys' Fees and Legal Defense Rights

A self-insured governmental entity is not an "insurer," and its agreement to indemnify employees for claims arising in the course and scope of their employment is not insurance; thus, such an entity is not bound by a state insurance requirement that the insured's consent be obtained before settling a lawsuit against the insured. Chambi v. Regents of the Univ. of Cal., #G024554, 95 Cal.App.4th 822, 116 Cal.Rptr.2d 50, 2002 Cal. App. Lexis 288 (Cal.App. 4th Dist. 2002).

Collective Bargaining - Duty to Bargain

Ninth Circuit overturns the Federal Labor Relation's decision to order the Dept. of Interior to bargain with the union over premium pay. The issue of "Sunday premium pay" was not properly preserved for bargaining. Dept. of Interior v. FLRA, #00-70862, 279 F.3d 762, 169 LRRM (BNA) 2333, 2002 U.S. App. Lexis 1251 (9th Cir.) [PDF Format]

Criminal Liability

Four of six former police officers in Alabama have pled guilty to racketeering, extortion, and possession of crack cocaine. Officers took money from detained suspects and kept it, rather than initiate forfeiture proceedings. U.S. v. Stallworth et al (S.D. Ala. 2002). DoJ Press Release CR 02-005.

Disciplinary Evidence - In General

The fact that the plaintiff's supervisor was under pressure to "get rid" of him was insufficient to prove his claim that he was terminated in retaliation for exercising his First Amendment rights. Vukadinovich v. Bd. Trustees, #01-1625, 278 F.3d 693, 18 IER Cases (BNA) 385, 2002 U.S. App. Lexis 849 (7th Cir. 2002).

Disciplinary Punishment - In General

A news wire service has reported that a police lieutenant and another father have been banned from Arapahoe County, Colorado, youth hockey games after a weekend brawl involving 30 parents. The officer and two other parents were reportedly cited for misdemeanor disorderly conduct after a Jan. 27, 2002 game.

Family, Medical & Personal Leave

A telephone message from an employee who said she was suffering from "depression again" may have given the employer sufficient notice to trigger FMLA leave. Spangler v. Fed. Home Loan Bank, #01-2476, 278 F.3d 847, 7 WH Cases2d (BNA) 1036, 2002 U.S. App. Lexis 1249 (8th Cir. 2002). [PDF Format]

Fair Labor Standards Act - Overtime & In General

Federal court dismisses a suit by California state corrections officers seeking damages against their superiors, in their individual capacities for failing to timely pay retroactive overtime pay increases. The court held that managers were not "employers" under the FLSA, and even if they were, sovereign immunity applies because the state was the real party in interest. Baird v. Kessler, #S-00-1619, 172 F.Supp.2d 1305, 2001 U.S. Dist. Lexis 19106 (E.D. Cal. 2001).

First Amendment Related

A Chief Deputy Probation Officer, who claimed retaliation after he filed a discrimination lawsuit, did not suffer any "adverse personnel action" when his superior limited his duties. "... minor shifts in employment responsibility did not significantly alter the conditions of [the plaintiff's] employment." Duffy v. McPhillips, #01-1747, 276 F.3d 988, 87 FEP Cases (BNA) 1461, 2002 U.S. App. Lexis 554 (8th Cir. 2002). [PDF format]

Fringe Benefits

Federal agencies now have discretionary authority to use appropriated funds or funds otherwise available to the agency to pay for (1) expenses for qualified employees to obtain professional credentials (including professional accreditation, state-imposed and professional licenses, and professional certifications) and (2) for examinations to obtain professional credentials. Confidential, policy-making, and policy-advocating positions are excepted from this benefit. P.L. 107-107 § 1112 (2001) will be codified at 5 U.S. Code §5757.

Handicap Laws / Abilities Discrimination - Regarded as Disabled

Under the ADA, a NYPD officer with a need to take the anticoagulant Coumadin, was regarded as unable to work as a full-duty patrol officer. He is not per se impaired from working as a law enforcement officer in either the public or private sectors. Giordano v. City of N.Y., #01-7370, 274 F.3d 740, 2001 U.S. App. Lexis 27137 (2d Cir.).

" For a corrections case involving Coumadin, see Pickering v. City of Atlanta, 75 F.Supp.2d 1374, 1999 U.S. Dist. Lexis 18136 (N.D. Ga.), discussed in our Nov. 2000 issue.

Health Insurance

An employer complies with its duty under COBRA, 29 U.S. Code §1161-1169, by sending a letter to an individual's last known address by certified mail, even when the employer knows that the individual did not actually receive the letter. Degruise v. Sprint, #00-31320, 279 F.3d 333, 2002 U.S. App. Lexis 1116 (5th Cir. 2002).

Military Leave

In granting 15 "days" of paid military leave a year, the Indiana Legislature intended to treat all public employees equally. Management's policy of paying up to 120 hours of military leave per year, regardless of shift length, treated all public employees the same; management definition of "day" as 8 hours did not conflict with state law or treat unfairly firefighters who work 24 hours on, 48 hours off. Koppin v. Strode, #49A02-0103-CV-148, 761 N.E.2d 455, 2002 Ind. App. Lexis 29 (Ind. App. 2002).

Federal agencies now have discretionary authority to pay both the employee and Government health benefit contributions, for up to 18 months, for employees called to active military duty for more than 30 consecutive days. Agencies may make retroactive payments back to Dec 8, 1995. P.L. 107-107 §519, codified at 5 U.S. Code §8906 (2001). Section 563 also amended 5 U.S. Code §6323(a)(1) to permit federal employees to use their 15 days of military leave for "funeral honors duty" as described in 10 U.S. Code §12503 and 32 U.S. Code §115.

National Origin Discrimination

The U.S. Dept. of Justice brochure, "Federal Protections Against National Origin Discrimination," is now available in 11 foreign languages: Arabic, Cambodian, Chinese, French, Haitian Creole, Korean, Laotian, Spanish, Russian, Tagalog (Philippines) and Vietnamese.

Past Practices, Precedents & Zipper Clauses

The mere fact that one employee obtained leave for a year does not establish that the employer has a general policy of unlimited leave, and it was error to conclude that the employer acted out of anti-union animus, in light of the absence of such a policy. Sasol v. NLRB, # 00-1525, 275 F.3d 1106, 2002 U.S. App. Lexis 201, 169 LRRM (BNA) 2152 (D.C. Cir. 2002), reversing 2000 N.L.R.B. Lexis 813, 332 N.L.R.B. No. 117 (2000), sub nom Condea Vista Co.

Pay Disputes - In General

212,000 current and former "special salary rate" federal employees, who worked between 1982 and 1988, will share more than $173 million in back pay under a class action settlement. Most awards will be in the $1,000 to $3,000 range, but some workers may recover as much as $30,000. Prior rulings are NTEU v. King, #96-1263, 132 F.3d 736, 1998 U.S. App. Lexis 17 (Fed. Cir. 1998); NTEU v. Horner, #87-1506, 869 F.2d 571 (Fed. Cir. 1989).

Race Discrimination

A District Court properly decertified an attempted class action of rejected police applicants, where the plaintiff failed to adequately pursue the litigation. Culver v. City of Milwaukee, #01-1555, 277 F.3d 908, 87 FEP Cases (BNA) 1464, 2002 U.S. App. Lexis 614 (7th Cir. 2002).

Race and Sex Discrimination

State parole officer's race and sex discrimination claims were time-barred; the court rejected her continuing violation claims. Weeks v. New York St. Div. of Parole, #00-0211, 273 F.3d 76, 2001 U.S. App. Lexis 23586 87 FEP Cases (BNA) 161 (2nd Cir. 2001).

Retirement Rights and Benefits

The Supreme Court has declined to review a Court of Appeals holding that U.S. Navy base police officers were entitled to the early retirement privileges as other federal LEOs. Watson v. Dept. of Navy, #01-725, 122 S.Ct. 817, 2002 U.S. Lexis 279 (cert. denied 2002); appellate decision at 262 F.3d 1292 (Fed. Cir. 2001).

Sex Discrimination - In General

A Fire District's refusal to accommodate a woman firefighter's educational requests, while accommodating similar requests by male firefighters, could have made her job intolerable -- supporting a constructive discharge claim. Rhyce v. Martin, #00-2623, 173 F.Supp.2d 521, 2001 U.S. Dist. Lexis 4963 (E.D. La. 2001).

Sexual Harassment - In General

Management, in separating a complaining employee from a harassing coworker, took reasonable steps to prevent future harassment, even if the offending employee later harasses another employee. Longstreet v. IL Dept. of Corr., #01-1849, 276 F.3d 379, 2002 U.S. App. Lexis 567, 87 FEP Cases (BNA) 1375 (7th Cir. 2002).

The New Mexico Dept. of Public Safety has agreed with the Justice Dept. to implement new policies governing sexual harassment, racial harassment and retaliation. The court-approved agreement ends a DoJ lawsuit, arising out of an EEOC charge of sexual harassment, filed by former State Police Lieutenant. U.S. v. New Mex. D.P.S. (D.N.M. 2001); DoJ Press Release No. 01-541.

Federal appeals court reverses the dismissal of a woman police officer's sexual harassment claims for a purported failure to exhaust her administrative remedies; new trial ordered. B.K.B. v. Maui Police Dept., #99-17087, 276 F.3d 1091, 2002 U.S. App. Lexis 276, 87 FEP Cases (BNA) 1306 (9th Cir. 2002). [PDF format]

Vehicle Related

G.S.A. now matches the I.R.S. private vehicle reimbursement or tax-deduction rates of 36½ cents per mile, effective 1 Jan. 2002. Source: 40 (1944) G.E.R.R. (BNA) 90.

Whistleblower Requirements and Protection

The Seventh Circuit has held that county or municipality may be sued as a "person" under the False Claims Act, 31 U.S. Code 3729 et seq. U.S. ex rel. Chandler v. Cook County, #00-4110, 277 F.3d 969, 2002 U.S. App. Lexis 847 (7th Cir. 2002).

The Third Circuit disagrees, and has ruled that county and city governments cannot be sued under the False Claims Act because the mandatory treble damages provision is "punitive" in nature and public entities are immune from punitive damages. The U.S. Dept. of Justice, in an amicus brief, supported the claim of the whistleblower-plaintiff in this case. U.S. ex rel. Dunleavy v. Co. of Delaware, #00-3691, 297 F.3d 219, 2002 U.S. App. Lexis 1214 (3rd Cir. 2002).

Workers Compensation - Exclusive Remedy

California appellate court holds that a workers comp. claim is the exclusive remedy for an off-duty employee, who was injured in her employer's workplace. Wright v. Beverly Fabrics, #F035445, 95 Cal.App.4th 346, 115 Cal.Rptr.2d 503, 02 C.D.O.S. 529, 2002 Cal.App. Lexis 448 (5th Dist. Cal. App.). [PDF format]

Book: Divorce and Your Federal Benefits, published by the Federal Employees News Digest (2001) ISBN: 0-910582-56-4, $19.95. Explains the "unique federal administrative and regulatory requirements affecting federal workers' -- and their spouses' -- rights to pensions and other benefits when a marriage ends."

Book: "Suicide and Law Enforcement," (2002) by the Behavioral Science Unit, FBI Academy in Quantico, VA. The 61 article book examines suicide and its impact on law enforcement. A CD version will be available in the near future. It can be purchased from the Government Printing Office.

Report: O.P.M. Demonstration projects and alternative personnel systems: HR Flexibilities and Lessons Learned, U.S. Office of Personnel Management document.

Website: The EEOC has a web doc entitled "Obtaining and Using Employee Medical Information as Part of Emergency Evacuation Procedures." It answers questions about the application of the ADA.

CROSS REFERENCES