California appellate court holds that a youth, who drew a painting of himself shooting a particular Chico Police officer, was protected speech, overturning a conviction for making a criminal threat.

     Angry that an officer had cited him for possessing marijuana, a high school student painted a picture of her, and turned it in as a high school art class project a month later. The painting depicted the youth shooting the officer in the back of the head, blowing away pieces of her flesh and face.

     The 15 year-old boy was prosecuted in juvenile court, which found that he made a criminal threat [Penal Code 422]; he was made a ward of the court. A three-judge appeals panel has reversed the disposition, saying:

"... although the minor's painting was intemperate and demonstrated extremely poor judgment ... the painting did not did not convey a ... threat to commit a crime that would result in death or great bodily injury to the officer. ...

     "The painting was a graphic, if mythical, depiction of the brutal murder of [the] Officer ... But the criminal law does not, and can not, implement a zero-tolerance policy concerning the expressive depiction of violence."

     In re Ryan D., #C035092, 123 Cal.Rptr.2d 193, 2002 Cal. App. Lexis 4453 (Cal. App. 3d Dist. 2002).

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•••• EDITOR'S CASE ALERT ••••

Seventh Circuit rejects the Fourth Amendment claims of three officers who were ordered to be interviewed by I-A personnel; they received overtime and were not disarmed or relieved of their IDs. A fourth officer pled a valid claim; although only partnered with another officer who was under suspicion, he was grabbed off the street and escorted to headquarters.

     Four Milwaukee officers sued the city and chief of police for allegedly abusive interview procedures. Each claimed he was unlawfully "seized" and restrained without probable cause. A federal magistrate judge dismissed their claims. A three-judge appeals panel affirmed three dispositions, and reversed the fourth officer's claim.

     The panel wasted little time in recognizing that management has a duty to investigate misconduct complaints and to interview officers under suspicion. They said:

     "We hold that the Department has the authority to direct its officers to remain on duty or to accompany detectives to the Department's headquarters and either answer questions from supervisory officers as part of a criminal investigation about their alleged misconduct or invoke their Fifth Amendment rights against self-incrimination.

     "We reject the appellant officers' argument that a patrolman is seized, within the meaning of the Fourth Amendment, at the time that he is ordered to report for questioning at a designated, centralized area, such as the headquarters for the internal affairs department (wherever it may be located) or some other suitable location determined by the superior officer."

     The panel noted, however, that internal affairs investigators may not seize an officer, without probable cause, who refuses to obey a command to remain on duty or report to a particular location in order to answer questions as part of a criminal investigation.

     Management may place an officer on administrative leave while conducting a further investigation. Consistent with Terry v. Ohio, I-A investigators may briefly detain and question an officer reasonably suspected of criminal activity -- or arrest and custodially interrogate an officer, if the arrest is supported by probable cause, they said.

     In reviewing the individual complaints of the four plaintiffs, the appeals court panel rejected the argument of officer Driebel that he was "seized" when he was ordered to "stand by" for 3½ hours in the police garage. Driebel received overtime pay and retained possession of all his police-issued equipment, including his gun, ID card, badge, and keys. There was no evidence that management created a coercive environment or read him the Miranda warnings.

     Later, Dreibel was arrested for battery, but the arrest was based on probable cause. The prosecutor dropped all charges, and Dreibel received a 20-day disciplinary suspension for throwing a radio at a youth, which struck him on the head.

     Second, the panel rejected a seizure claim of officer Pinchard, who was met at the I-A offices by detectives and escorted to a conference room, where he waited for approximately 30 minutes and was read his Miranda rights. He refused to make a statement and was allowed to return to duty.

     Third, the panel rejected the seizure claim of officer Huston, who was ordered to report to headquarters; he was allowed to return to duty several hours later. During the interview period he retained possession over weapon, ID card, badges and keys.

     However, the panel was troubled with the treatment of officer Sgrignuoli. I-A officers accosted him on a street corner, grabbed him, turned him around, and took him to a police car. The Milwaukee Police Manual forbids superior officers from using force to subdue an officer to effectuate an interview, unless he is placed under formal arrest. The panel said:

     "Based upon this conduct... a jury could find that a reasonable officer would have believed that Sgrignuoli faced detention rather than merely the pains of a future adverse employment action had he refused to comply with the order."

     There was no evidence that Sgrignuoli was guilty of misconduct. He was apprehended only because he "happened to be unlucky enough to be partnered up with [officer] Huston ..." The panel rejected the chief's argument that an officer could be seized on a "reasonable suspicion" standard, without probable cause. The panel said it was "convinced that a reasonable jury could conclude that he was seized without probable cause."

     Driebel v. City of Milwaukee, #01-1689, 298 F.3d 622, 2002 U.S. App. Lexis 15304 (7th Cir. 2002).

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Ninth Circuit invalidates an FBI search of a city office, with the permission of the City Attorney. A city attorney does not have the authority to consent to a workplace search by criminal investigators.

     Federal prosecutors had targeted a minority business program of the San Francisco Human Rights Cmsn. Federal investigators were told that relevant documents were being shredded. They prepared a "forthwith" grand jury subpoena for those records, as well as shredded records. Several FBI agents, an Asst. U.S. Attorney, and a Deputy City Attorney arrived at the HRC offices and served the subpoena on HRC's Director.

     Federal prosecutors asked the City Attorney for permission to conduct a search of the records at the HRC offices. The City Attorney agreed and authorized the search. Documents were found on the floor of the defendant's office; agents also opened a file cabinet and retrieved more documents.

     The defendant moved to suppress the evidence taken from her office, arguing that the entry into her office violated the Fourth Amendment.

     The District Court ruled that the search violated the Fourth Amendment because it "was not initiated by the employer for purposes of conducting the business of the employer or for the purposes of investigating internal employee misconduct." The City as an employer was not searching for employment-related reasons, but "rather simply to allow another agency [the FBI] to conduct a search."

     The judge also held that the "City Attorney does not ... have the authority, as an employer, to grant consent to search offices ..." A three-judge panel agreed, saying:

     "The HRC, while technically a part of the City government, is a separate agency with its own authority and director. The HRC could have refused to cooperate with the investigation. Furthermore, the Charter does not state that the City Attorney has the power to step in and act as the employer. Such a construction would mean that any City official could override Fourth Amendment protections.

     ... although the federal agents received permission from the City Attorney to conduct the Friday night searches, the district court found that there was no evidence that the City Attorney was in charge of making the decisions here or that she stood in the shoes of the employer."

     U.S. v. Jones, #01-10352, 286 F.3d 1146, 2002 U.S. App. Lexis 7132 (9th Cir. 2002).

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Ninth Circuit upholds a federal employer's random search of an employee's backpack to deter employee theft, where all employees had signed a notice that his belongings were subject to suspicionless searches.

     The appellant was a clerk at an Air Force Exchange store. A random search of his backpack revealed $15 worth of stolen spark plugs. He was convicted of larceny and appealed on the basis of an illegal workplace search.

     The Ninth Circuit affirmed, 3-to-0. The panel noted the worker had signed a document when he began work at the base Exchange, and knew that random searches were an employer policy. He said that he acquiesced to the search of the backpack "because and only because he felt he had no choice."

     The panel said that such a practice, whether it establishes consent or not, puts employees on notice that they may be required to submit to exit searches. Although probable cause is not needed for an employee search, "reasonableness is required."

     A court must balance the "employee's reasonable expectation of privacy, the justification for the government employer's search, and the scope of the search as it relates to the justification for the search, in order to determine whether the search is reasonable."

     The panel concluded the search was reasonable because:

     1. The employee "had clear notice before he ever came to work with his backpack that he would be subject to just such a search."

     2. The search did not go beyond the scope needed to look for stolen merchandise.

     3. The U.S. Supreme Court has upheld, on less than probable cause, searches of students who might have cigarettes on their person, New Jersey v. T.L.O., 469 U.S. 325 (1985).

     4. The Ninth Circuit previously upheld the search of postal workers' lockers, where the Postal Service had regulations informing employees that their lockers were subject to search, U.S. v. Bunker, 521 F.2d 1217 (9th Cir. 1975).

     U.S. v. Gonzalez, #01-30059, 300 F.3d 1048, 2002 U.S. App. Lexis 16470 (9th Cir. 2002).

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Because the term "domestic partner" was not defined in the CBA, and an ordinance referred only to same-gender partners for benefit purposes, an arbitrator holds that a heterosexual sergeant was not improperly denied paid leave to care for his ailing domestic partner.

     A police sergeant in a Chicago suburb was denied paid leave to care for his long-time domestic partner of the opposite gender. The village had an ordinance which allowed the same benefits for same-gender domestic partnerships as provided for married employees.

     In the bargaining agreement, a member of the immediate family included domestic partners. However, the agreement does not define the term, contains no reference to the village's Employee Handbook, to ordinances, or legislative history.

     The arbitrator found that the parties failed, during bargaining sessions, to agree on the inclusion of opposite gender domestic partners for the benefits allowed same-gender partners. He denied the grievance, saying:

     "... the Union should have pressed the matter right then and there - at the bargaining table. It cannot win in these proceedings a debate which it should have raised with Village negotiators in 1996, but did not."

     Vil. of Oak Park and IL FOP, FMCS Case #01/03578, 117 LA (BNA) 99 (Briggs, 2002).

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     Editor's Comment: If the bargaining agreement (Art. XIII Sec. 2 and 6) allows paid leave to care for "domestic partners" and the term is not defined, most courts would adopt the commonly understood definition of the term -- which would include the opposite gender. Illinois does not have a statute recognizing or registering domestic partnerships; if it had such a law, any included definition would apply in the absence of a definition in the bargaining agreement.

     On the other hand, arbitrators typically look to the historical relationships between the parties to see if there is a pattern of recognizing or denying benefits. Those relationships are more important than commonly understood definitions, because they reveal the interdependence of the parties.

     In any event, two general principles should be noted. First, all out-of-ordinary terms should be defined, to avoid future litigation. Second, if agreements are not reached at the bargaining table, the courts and arbitration proceedings should not be used as a substitute to advance a party's views.

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Arbitrator holds that a city violated the bargaining agreement when it denied tuition reimbursement to a police officer for a religion course, where the city had past practice of reimbursing courses required for a criminal justice degree.

     The grievant was denied reimbursement for "Great Religions of the Far East." The course is required course for a criminal justice degree.

     The union showed that the city has previously paid for courses such American History, Evolution and its Impact on Society, Controversial Environmental Issues, Economic Geography, TV & Culture, Zen Philosophy, and Marriage & Family.

     The City argued that there was not enough evidence to support a past practice claim. The arbitrator disagreed.

     The arbitrator declined to rule prospectively that all courses that are needed for a degree must be reimbursed. However, the findings in this case may be used to support a collateral estoppel motion.

     City of Oregon and Oregon Police Patrolmen's Assn., 117 LA (BNA) 236 (Klein, 2002).

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Voluntary extra duty assignments for a city court were compensable at regular police hourly rates plus 50%. The fact that for 25 years the city paid a lower rate, never paid overtime, and the officers never complained is no excuse. The officers are entitled to double the differential (liquidated damages) for 3 years prior to filing the suit, plus legal fees.

     Extra duty officers in a New York town earned between $41 and $47 an hour, but were only paid $15.32 for work as bailiffs for the Town Court. The court was not a separate legal entity, the officers wore their regular uniforms, and were paid on the same paycheck for police and court work. The officers sought wage differentials at overtime rates and then doubled for three years.

     The city defended on the ground that the arrangement was in effect for 25 years, the officers did not complain until recently, and if unlawful, it was a good faith mistake. The judge said the law requiring pay at 150% straight time (after 40 hours) is statutory, and is not waived by employees who have accepted reduced wages for long periods.

     "An employer cannot deny overtime compensation once it knows or has reason to know that an employee is working overtime -- even if that employee fails to claim overtime hours. ... Thus, the fact that the Officers have been working for a flat non-overtime rate for 25 years is no bar to this action seeking overtime compensation."

     The town did not act in good faith, so it was liable for wage differentials for 3, not 2 years -- and it was liable for double damages. Cox v. Poughkeepsie, #01 Civ. 3794, 209 F.Supp.2d 319, 2002 U.S. Dist. Lexis 12579 (S.D.N.Y. 2002).

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•••• EDITOR'S CASE ALERT ••••

A divided Fifth Circuit allows a damage suit against police chiefs, sheriffs, and their cities and counties for boycotting the classes of two police academy instructors who testified against a police officer in a use of force case.

     The plaintiffs were instructors at the East Texas Police Academy, a part of Kilgore College in Texas. The ETPA provides basic and advanced training for law enforcement officers in East Texas. The plaintiffs had been working at the ETPA for seventeen years and six years, under renewable one-year employment contracts.

     The defendants, who are law enforcement officials who asserted qualified immunity, are chiefs of police or sheriffs who possess final authority over the training of the officers employed by their respective agencies.

     The plaintiffs testified as expert witnesses for the family of a seventeen-year-old who was fatally shot by a Kerrville police officer. They testified that the officer had used excessive force and that the police department failed to implement the proper policies necessary to direct the conduct of officers acting as "snipers." The plaintiffs declined payment for their testimony because they "felt so strongly about the incident and ...it wouldn't be right to charge."

     The president of Kilgore College received letters from several police chiefs and sheriffs denouncing their expert testimony and threatening to stop using the ETPA for officer training. One chief wrote:

     "I think it is deplorable ... that instructors for our Police Academy hire themselves out as an expert witness: AGAINST law enforcement agencies ... and the Marshall Police Department will not attend any courses taught by [the plaintiffs] due to the liability they place on this Police Department."

     Four defendants "made it clear ... that it was unacceptable" for the plaintiffs "to continue as instructors of officers and recruits and also testify in litigation against police officers," and "that they would no longer send officers and recruits" to the ETPA for training if the plaintiffs "remained on the Academy faculty."

     The college president testified that courses by the plaintiffs "were boycotted by a sufficient number of law enforcement agencies so that enrollment was insufficient to make their classes and ... could not be economically continued."

     The 6-year instructor resigned, and returned as an officer to the agency that he had come from. The college did not renew the 17-year instructor's contract for his position as an ETPA instructor, but offered him a contract as a lecturer for $15,000 less than he earned as an ETPA instructor.

     They sued four chiefs and their cities, three sheriffs and their counties, and the East Texas Police Chiefs Assn., alleging that the defendants had "blackballed" them "in retaliation for their truthful testimony on behalf of the victim of a police shooting." They claimed that the defendants had violated their rights:

     1. to testify freely under 42 U.S. Code §1985(2),

     2. to free speech under the 1st and 14th Amendments,

     3. to due process of law under the 14th Amendment and Texas law.

     The district court denied the defendants' summary judgment motion on all grounds. Kinney v. Weaver, 111 F.Supp.2d 831 (E.D. Tex. 2000).

     A panel of three appellate judges divided, 2-to-1. The majority said:

     "We also conclude that it would have been apparent to reasonably competent officials at the time of the alleged violations in this case that §1985(2) proscribes conspiracies to intimidate or injure expert witnesses. ...

     "... we conclude that it would have been objectively unreasonable for the Police Chiefs and Sheriffs to believe that retaliation against [the plaintiffs] for their testimony in the Kerrville case was lawful under §1985(2) simply because [the plaintiffs'] testified as expert witnesses. ...

     "The conduct that we assume is attributable to the Police Chiefs and Sheriffs for purposes of summary judgment -- i.e., boycotting [the plaintiffs'] classes in order to pressure [the college] to remove them from the ETPA faculty ---- clearly constitutes interference with [the plaintiffs'] employment ..."

     As to the second count, the majority said that "there is no question" that the plaintiffs' testimony in the Kerrville case was speech protected by the First Amendment. "Testimony in judicial proceedings is inherently of public concern."

     The majority then applied a balancing of interests test, and concluded:

     "In the particular circumstances of this case, we find it clear that this significant First Amendment interest outweighs any interest of the Police Chiefs and Sheriffs in prohibiting their training instructors from testifying against law enforcement. ...

     "... [the plaintiffs] testified against a police department located in an entirely different part of the state than the one in which they trained officers. ...

     "... under the circumstances that obtained here, the Police Chiefs and Sheriffs appear to be employing euphemisms for a "code of silence" prohibiting persons who work in law enforcement from speaking out about misconduct on the part of others working in law enforcement. ...

     "Enforcing such a 'code of silence' is not a legitimate interest because it does not promote the efficiency of the public services performed by a law enforcement agency. ... One of the primary interests of law enforcement agencies is ensuring that officer misconduct is disclosed and can thus be addressed and prevented in the future."

     The majority said that the governmental and First Amendment interests outweighed any interest of the chiefs and sheriffs in avoiding potential conflicts of interest, given that the testimony was against a police officer who had never trained at the ETPA and a police department that had no connections to the ETPA.

     The majority added that the conduct of the chiefs and sheriffs "not only violated a constitutional right, but also ... was objectively unreasonable in the particular circumstances of this case."

     The majority agreed with the defendants, however, that the plaintiffs did not have a valid due process claim. The court remanded the remainder of the case for trial on the merits.

     While not condoning the behavior of the defendants, a dissenting judge voted to grant them qualified immunity.

     Kinney v. Weaver, #00-40557, 2002 U.S. App. Lexis 15349 (5th Cir. 2002).

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Hawai'i Supreme Court rejects a discrimination complaint of a "mildly dyslexic" police dispatcher who was forced to resign for repeatedly garbling critical information.

     A mildly dyslexic woman sought the position of police radio dispatcher in Honolulu. She experienced difficulty because of inaccuracies, misspellings and mispronunciations, and indecisiveness. Her inaccuracies increased when the number of calls increased.

     A superior informed her that she would be fired if she did not improve within three months; she resigned. Claiming constructive discharge, she sued in state court for disability discrimination, conspiracy, invasion of privacy, negligent and intentional infliction of emotional distress and other lesser injuries.

     The trial court rejected her ADA claim. The Hawaii Supreme Court has affirmed, 5-to-0. First, her mild dyslexia did not significantly limit her in any major life activity. While she may not be successful as a dispatcher, her prior work record indicates a considerable number of occupations she would be successful at.

     The justices noted that "all her test scores, which included reading, writing, and learning aptitude tests, fell within, at the least, average classification, the overall assessment of her cognition placing her on the high side of average."

     Under the ADA, she was not impaired, and "employers have no duty to accommodate an employee if the employee is not disabled under the ADA."

     Although it was not necessary to reach the merits of a BFOQ defense, the justices said that "critical errors in receiving and transmitting information while on the radio ... could jeopardize the safety of the public and the police officers."

     Bitney v. Honolulu Police Dept., #22981, 96 Haw. 243, 30 P.3d 257, 2001 Haw. Lexis 318

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Michigan Supreme Court holds that a lesbian police lieutenant could not use a city charter's anti-discrimination clause to bring a damage suit for sexual orientation discrimination. She could sue for gender-based harassment, however.

     We previously reported [2001 FP 25] that a lesbian police lieutenant had resigned and filed a suit, alleging that she was prohibited from doing investigative work, was assigned to answer phones, and restricted from taking time off from work.

     The Michigan court of appeals said she could maintain a damage action against the city for violation of a city charter provision that prohibits sexual orientation discrimination. Mack v. Detroit, #214448, 620 N.W.2d 670, 243 Mich. App. 132, 2000 Mich. App. Lexis 233.

     The Michigan Supreme Court has reversed, 4-to-3. An anti-discrimination clause in a city charter does not waive the city's governmental immunity from damage suits. However, she could maintain a parallel claim based for gender-based harassment -- if the evidence supports that allegation. To succeed, she would have to show she was harassed because of her gender (as opposed to her sexual orientation).

     Mack v. City of Detroit, #118468, 649 N.W.2d 47, 2002 Mich. Lexis 1422 (7/31/02)

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Arbitrator holds that management unilaterally ended a 30 year past practice of assigning a bargaining-unit patrolman to fill a detective position.

     The City claimed that Ohio state law provides that the Chief of Police has exclusive control in the stationing and transfer of all Patrolmen. The union cited a past practice of assigning a patrol officer to the detective bureau.

     The arbitrator sided with the union, because the bargaining agreement clearly memorialized all recognized past practices. The city was ordered to restore the practice.

City of Niles and Ohio PBA, FMCS Case #02/00981, 117 LA (BNA) 244 (Parkinson, 2002).

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      Editor's Note: The Supreme Court has remarked that the practices of the business and the particular bargaining unit are "equally a part of the collective bargaining agreement although not expressed in it." Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 80 S.Ct. 1347 at 1351-2 (1960).

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Woman supervisor's propositions and continued mistreatment of a male subordinate did not rise to the Faragher standard of severe and pervasive hostile work environment, and was not motivated by gender bias. The superior treated all subordinates badly.

     A private sector male worker rejected the advances of his female superior because he is gay. She mistreated him, causing him to defecate in his pants and take sick leave. When the employer refused to pay him for lost commissions, he quit and sued in Federal Court.

     The trial court rejected the claims, and a three-judge appeals panel has affirmed. First, although the harassment was repeated, it was not severe. More importantly, it was not directed against him because of his gender (or his sexual orientation). The panel said:

     "There is no question that [plaintiff] has presented evidence that [his superior] was the type of supervisor for whom no employee wanted to work, that she acted in a juvenile and irrational manner on occasion, and that she was at best inconsiderate and at worst cruel in her treatment of those individuals under her supervision. However, [he] has not provided any evidence that [her] actions were motivated by gender; indeed, he presented evidence that [she] treated every employee badly, male and female alike."

     The supervisor, nicknamed "Military Mary," screamed at and threatened all of her subordinates on a regular basis. Walker v. National Revenue, #00-4531, 2002 U.S. App. Lexis 15696 (6th Cir. 2002).

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     • Click here to view the Supreme Court's decision in Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275 (1998).

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Arbitrator denies a sergeant's grievance that he was forced to work overtime on his day off, in violation of the bargaining agreement. Requiring him to attend a state mandated training program was not forced overtime.

     Although the bargaining agreement provided that officers shall not work overtime on days off except in emergencies, it did not apply to a training session on the grievant's day off.

     The training was required by state law and the sergeant was paid overtime. The CBA recognized the city's duty to follow state law, and his superiors exercised their managerial right to require employees to attend training sessions at available times.

     City of Granite City and Policemen's Benev. Labor Cmtee., 117 LA (BNA) 222 (Wang, 2002).

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Arbitration Procedures

     Texas Supreme Court holds that at-will employees are subject to binding arbitration for all employment disputes by continuing to work after the employer notifies workers of an effective date. The court rejected the argument that unsigned arbitration agreements are not enforceable. Halliburton Co. and Brown & Root Energy Services, #00-1206, 45 Tex. Sup. J. 720, 80 S.W.3d 566, 2002 Tex. Lexis 70, 45 Tex. Sup. J. 720, 18 IER Cases (BNA) 1121 (Tex. 2002).

     Arbitrator refuses to allow a union to enlarge the subject of the grievance submitted. "Any attempt by either party to present a new issue, after the filing of the original grievance, is an expansion of scope of the original complaint, and should be rejected in arbitration." City of Bay City and FOP L-103, FMCS Case #01/09422, 117 LA (BNA) 60 (Allen, 2002).

Back Pay Claims and Awards

     A reinstated public employee's lawsuit, alleging that a reinstatement award had been improperly classified as back pay, rather than workers' comp. benefits, was an improper challenge to the workers' comp. decision. Pueschel v. U.S., #01-5116, 297 F.3d 1371, 2002 U.S. App. Lexis 15343 (Fed Cir. 2002).

Disability Rights and Benefits - Line of duty related / disputed

     Maryland appeals court holds that a firefighter who died from cancer, as a result of having inhaled carcinogenic fumes in the course of his duties, suffered an occupational "injury" and his estate is entitled to receive special disability pension benefits. However, the state's five-year statute of limitations runs from the date of injury, not the date of disablement, and whether he had filed his claim on time depends on whether his cancer was primary or metastatic. Board of Trustees, Fire and Police Empl. Ret. Sys. v. Mitchell, #02292, 145 Md. App. 1, 800 A.2d 803, 2002 Md. App. Lexis 112 (2002). [PDF File]

Disciplinary Offenses - In General

     Arbitrator rules that management had just cause to terminate a police officer who took paid leave to attend military training on multiple occasions. The military attendance and pay records showed him to be absent, and he was unable to prove his presence by the testimony of other military reservists. FOP and the City of Cambridge, Ohio (Graham, 7/12/2002).

     Oregon Supreme Court disciplines an attorney who instructed an investigator to misrepresent his identity as a journalist to interview a claimant. Disciplinary Rule 1-102(A)(3) prohibits conduct involving "dishonesty, fraud, deceit or misrepresentation." In re Ositis, S46805, 333 Ore. 366, 40 P.3d 500, 2002 Ore. Lexis 96 (Ore. 2002).

Disciplinary Punishment - In General

     Arbitrator holds that a city improperly denied a merit increase to 25-year employee because he had been late by a few minutes one day. City of Oklahoma City and L-2406 AFSCME, FMCS Case #01/08842, 116 LA (BNA) 1665 (2002).

     Management did not have just cause to terminate a guard who lost a key, where the employer had insisted throughout the grievance procedure that the grievant was discharged under a progressive discipline policy for a series of offenses and never raised the issue of whether he could be discharged for first offense until the arbitration hearing. Loomis Fargo and Co. and Currency & Security Handlers Assn., FMCS Case #02018/03855-3117, LA (BNA) 112 (Moreland, 2002).

     Ninth Circuit panel holds that the government was not required to order additional remedial training, instead of termination, for an employee who was guilty of repeated safety errors. Brehmer v. FAA, 01-3174, 294 F.3d 1344, 2002 U.S. App. Lexis 12397, 170 LRRM (BNA) 2422 (Fed Cir. 2002).

Discovery, Publicity and Media Rights

     Media in Washington state will receive the names of terminated or disciplined state workers who sent abusive e-mails, along with a copy of the e-mails. The information was sought under the Washington Public Disclosure Act. A Superior Court rejected an injunction sought by the union, but permitted the names of nondisciplined workers to be redacted before the mail is released. Wash. Feder. of St. Employees v. St. of Wash., Thurston Co. Super. Ct. #02-2-00679-2, 40 (1963) G.E.R.R. (BNA) 574 (2002).

Domestic Partner Rights

     Maryland appeals court upholds a county law that extended health, leave, and survivor benefits to the domestic partners of the county employees. Tyma v. Montgomery County, #20-2001, 801 A.2d 148, 2002 Md. Lexis 345 (2002).

     Editor's Research Note: A similar law was upheld in Washington state last year -- Heinsma v. Vancouver, #70895-9, 144 Wn.2d 556, 29 P.3d 709, 2001 Wash. Lexis 549 (Wash. 2001). The Virginia supreme court invalidated a domestic partner law the year before -- Arlington County v. White, #991374, 259 Va. 708, 528 S.E.2d 706, 2000 Va. Lexis 71 (Va. 2000) -- as did a trial court in Massachusetts, Catavolo v. City of Cambridge, Mass. Super. Ct., #00-1319, 38 (1887) G.E.R.R. (BNA) 1297 (2000).

FLSA - Overtime - in General

     Seventh Circuit rules that a city was required to pay a firefighter overtime for time spent in paramedic training, even though he dropped out before completion; the city was entitled to reimbursement for some of its training expenses. Heder v. City of Two Rivers, #01-4118, 295 F.3d 777, 2002 U.S. App. Lexis 13832, 7 WH Cases2d (BNA) 1665 (7th Cir. 2002). [PDF File]

Free Speech

     County government was not liable for a retaliatory termination of an employee, where only one of the three commissioners who voted to eliminate her job was improperly motivated by her criticism of a potential county vendor." An unconstitutional motive on the part of one member of a three- member majority is insufficient to impute an unconstitutional motive to the Commission as a whole." Matthews v. Columbia Co., 01-10863, 294 F.3d 1294, 2002 U.S. App. Lexis 12120, 18 IER Cases (BNA) 1228 (11th Cir.).

     Sixth Circuit overturns an injunction issued to prevent a journalist from disclosing the identity of security guards assigned to the site of a labor dispute. County Security Agency v. Ohio Dept. of Commerce v. Betzold, #00-3620, 296 F.3d 477, 2002 FED App. 0224P, 2002 U.S. App. Lexis 13626, 170 LRRM (BNA) 2467 (6th Cir. 2002).

Health Insurance & Benefits

     Arbitrator holds that a city did not violate the CBA when it increased fees for ER visits and changed the payment system for prescription drugs. "Substantially similar benefits" should refer to changes that apply to a plan as a whole, and not to minor provisions. Elk Grove Village and Prof. Firefighters L-2340, 117 LA (BNA) 152 (Nathan, 2002).

Impasse Arbitration

     Arbitrator selects management's offer of a 6.0 percent wage increase for county detention officers over a union demand of 9.5 percent. Management's offer was higher than comparable counties and higher than given to other county employees. Pottawattamie Co. Iowa and P.C. Detention Officers Assn., 116 LA (BNA) 1761 (Moeller, 2001).

Injuries to Employees

     California's "Firefighter's rule", did not automatically bar a police officer's claim for injury from a railway crossing gate, because the "independent cause" exception may apply. Vasquez v. N. County Transit Dist., #01-55326, 292 F.3d 1049, 2002 U.S. App. Lexis 11095 (9th Cir. 2002). [PDF File]

     A security officer who claimed that he suffered disk bulges, after falling into a pothole on the grounds he was patrolling, was awarded $709,353 by a Los Angeles County Superior Court. Gibson v. Trizec Warner, reported in the Calif. Bar Journal Trial Digest, March 2002.

Occupational Safety & Disease

     N.Y. appellate court allows a injured firefighter to sue New York City for providing protective clothing that did not comply with federal OSHA regulations. 29 C.F.R. Section 1910.156(e) requires fully extended boots or protective shoes or boots, worn in combination with protective trousers. McGovern v. City of N.Y., #330, 742 N.Y.S.2d 218, 2002 N.Y. Slip Op. 03813 , 2002 N.Y. App. Div. Lexis 4780 (2002).

Political Activity / Patronage Employment

     Fourth Circuit holds that a county sheriff was entitled to qualified immunity from a claim that his employees were not reappointed because they supported his opponent in the election, because the law was not clearly established at the time of the alleged First Amendment violations. Pike v. Osborne, #01-2050, 2002 U.S. App. Lexis 15134 (4th Cir. 2002).

Privacy Rights

     Although the California constitution protects individual privacy, an opposing party is entitled to learn whether an officer previously worked for another law enforcement agency. Fletcher v. Superior Court (Oakland Police), #A096372, 100 Cal.App.4th 386, 123 Cal.Rptr.2d 99, 2002 Cal. App. Lexis 4417 (Cal.App. 1st Dist. 2002). [PDF File]

     Michigan appeals court upholds a newspaper's FOIA request for the names of city employees and the associated costs of representing them in a grand jury probe. The law's privacy exemption applies to an individual's private life, not public service activities. The secrecy provision relating to grand juries also does not prevent disclosure. Detroit Free Press v. City of Warren, #231010, 250 Mich. App. 164, 645 N.W.2d 71, 2002 Mich. App. Lexis 2412 (2002).

     A proposed rule would implement the privacy provisions in HIPAA, the Health Insurance Portability and Accountability Act of 1996, effective in 2002: "Standards for Privacy of Individually Identifiable Health Information," 67 (59) Federal Register 14775-14815 (FR Doc. 02-7144, Mar. 27, 2002).

     A Los Angeles County Superior Court has awarded a police officer $177,776 against a politician who invaded his privacy and defamed him in a campaign flier. Hernandez v. City of Inglewood, reported in the Calif. Bar Journal Trial Digest, Jan. 2002.

     Woman schoolteacher loses her suit to prevent a male transvestite teacher from using the women's toilets. Minnesota state law "neither requires nor prohibits restroom designation according to self-image" and her federal claim fails because she did not suffer a significant adverse employment action, i.e., a hostile work environment. Cruzan v. Special School District # 1, #01-3417, 294 F.3d 981, 2002 U.S. App. Lexis 12161 (8th Cir.).

Psychological Exams and Standards - Psychological Screening of Applicants

     Court dismisses, for procedural reasons, a discrimination suit filed by a rejected woman deputy sheriff applicant for an allegedly gender-biased interpretation of her psychological tests and interview. Earlier, the Maryland Cmsn. on Human Relations issued a written finding of no probable cause of discrimination. Willey v. Ward, #2001-1238, 197 F.Supp.2d 384, 2002 U.S. Dist. Lexis 6699 (D.Md. 2002).

Psychological Counseling

     Appeals court sustains termination of a police officer with an attitude problem, who was not fully cooperative with his remedial therapy. "Doctors who oversaw the program testified that [he] did not successfully complete the program and refused to actively engage in it." Moore v. NOPD, #2001-CA-0174, 813 So.2d 507, 2002 La. App. Lexis 612 (La.App. 2002).

Racial Harassment

     Ninth Circuit Court of Appeals upholds a $1 million punitive damages award to a black worker who was repeatedly subjected to jokes and racial slurs. Swinton v. Potomac Corp., #99-36147, 270 F.3d 794, 2001 U.S. App. Lexis 22853, 87 FEP Cases (BNA) 65 (9th Cir. 2001). [PDF File]

Religious Discrimination

     State human rights agency orders a transit authority to pay $50,000 to a Seventh Day Adventist who was required to work on the Sabbath. Testimony revealed the employer allowed other workers to swap days but ignored his requests. Marquez v. Mass. Bay Transp. Auth., Mass. Cmsn. Against Discrim. #97-BEM-3223, 40 (1969) G.E.R.R. (BNA) 740 (MDAC 2002).

Resignations

     A divided federal appeals panel holds that a Jehovah's Witness, who was a cadet with the Washington State Patrol, was not constructively discharged for his unwillingness to salute the flag or take an oath. He resigned before he was threatened with disciplinary action. Lawson v. St. of Washington, #00-35458, 296 F.3d 799, 2002 U.S. App. Lexis 14001, 89 FEP Cases (BNA) 385 (9th Cir. 2002). [PDF File]

Sex Discrimination

     A Sacramento County Superior Court has awarded $951,710 to a state employee in California who claimed he was fired in retaliation for participating in a coworker's complaint of gender discrimination. Prasad v. Univ. of Cal. Davis Med. Ctr., reported in the Calif. Bar Journal Trial Digest, April 2002.

Sexual Harassment - Verdicts, Settlements & Indemnity

     A $30 million punitive damages jury verdict against a private employer has been cut to $8.25 million by the judge. Gober v. Ralphs Grocery, Super. Ct. #N72142, San Diego Co. Calif., rptd. in the S.F. Recorder (7/17/2002).

Union and Associational Activity

     A provision in a CBA that the union would indemnify the county, as employer, for any litigation challenging the withholding of representation fees from paychecks, could not be challenged by nonunion members of the bargaining unit. They were unable to show the agreement harmed them. Prescott v. County of El Dorado, #01-15913, 298 F.3d 844, 170 LRRM (BNA) 2667, 2002 U.S. App. Lexis 15408 (9th Cir. 2002). [PDF]

Whistleblower Requirements and Protection

     A California public defender who alleged constructive termination, after disclosing illegal and unethical practices in the public defender's office, was awarded $231,850 by a Nevada County Superior Court. Moore v. County of Nevada, reported in the Calif. Bar Journal Trial Digest, June 2002.

Workers' Compensation - Claim Validity

     Off-duty police officer, injured while assisting at the site of a vehicle accident was entitled to workers' comp benefits. Spieler v. Village of Bel-Nor, #ED79132, 62 S.W.2d 457, 2002 Mo. App. Lexis 1769 (Mo. App. 2001; rptd. 2002).

Wrongful Discharge / Discipline: Damages & Settlements

     A California private sector employee who was terminated after speaking up on behalf of a gay coworker was awarded $313,440 by an Orange County Superior Court. Hewus v. Weber Precision Graphics, reported in the Calif. Bar Journal Trial Digest, June 2002.

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Article: "Pursuing punitive damages in job bias cases," 38 (7) Trial 64-72 (Jul. 2002), Assn. of Trial Lawyers of America.

Article: "The insurance aftermath of Sept. 11: War risk coverage, the future of terrorism coverage and new issues of government role," 37 (3) Tort & Insur. Law Journal (ABA) 817-882 (Spring 2002).

Book: "The abuse of police authority: a national study of police officers' attitudes," by David Weisburd, Rosann Greenspan, Edwin E. Hamilton, Kellie A. Bryant and Hubert Williams. $24.95 (2001, 197 pages, 41 tables/figures) ISBN 1-884614-17-5. The Police Foundation, www.policefoundation.org

Online article: "Computer and Internet surveillance in the workplace," by Andrew Schulman, Fellow, Privacy Foundation.

Online booklet: "Employer's rights and responsibilities following OSHA inspections," 40 pp. (Revised 2002). [PDF]

Online booklet: Homeland Security Office has issued a Guide for state and local governments. [PDF]

Report: "A fresh start for federal pay: the case for modernization," by the U.S. Office of Personnel Management's Strategic Compensation Policy Center.

Report: Public Citizen presents a collection of information on the cost of arbitration in non-union cases, and concludes that the cost to a plaintiff of initiating an arbitration is almost always higher than the cost of instituting a lawsuit.

Website: Women in Policing recruitment and training academy self-assessment tools.

CROSS REFERENCES