Appellate court reverses a trial judge that had set aside an arbitration award reinstating a police officer who committed a misdemeanor.

     While off duty, an Illinois officer identified his status and hostilely confronted a motorist that had lightly bumped his wife's car. He later received an 18-day suspension for violating agency procedures. Subsequently he was found guilty of a criminal misdemeanor and was fired.

     On review, the arbitrator noted that the grievant had served almost 13 years with no disciplinary suspensions and that the city originally chose to suspend him for 18 days, even though it could have taken far more drastic action. He felt that the 18-day suspension was sufficient to warn the grievant not repeat his improper conduct.

     The arbitrator also allowed the city to require the grievant to submit to an employee evaluation with emphasis on anger management. If the city exercised this option, the grievant would be required to comply with any program that the city deemed proper.

     The city sought judicial review, and a circuit court set aside the award, as contrary to public policy. The officer appealed, and a three-judge appellate panel reversed and reinstated the award, saying:

"... absent an explicit legal prohibition against the reinstatement, there must be some well-defined and dominant policy, not merely a value judgment or notion of the public interest, that implicitly forbids the employee's reinstatement."

     There was no clear public policy, in Illinois or other states, requiring the termination of a police officer who, while off-duty, commits a misdemeanor.

     Moreover, the officer was placed on supervision, and the trial court did not enter a judgment of conviction, allowing the charge to be dismissed if the officers successfully completed supervision. City of Highland Park v. Teamster L-714, #2-04-0653, 2005 Ill. App. Lexis 396 (2nd Dist. 2005).

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     Research Note: Ten years ago, the same appellate court disallowed a pension for an ex-officer who was forced to resign after he pled guilty to a misdemeanor (fondling a citizen).

     Allowing him to collect a pension would cause a public injustice because the claimant would "profit from his own wrongdoing." However, the panel said their decision "is limited to the narrow facts presented by this case and is not to be extended generally to all misdemeanors" committed by a public employee. Jagielnik v. Bd. Tr. of Mundelein, 271 Ill.App.3d 869, 649 N.E.2d 527, 1995 Ill.App. Lexis 265 (Ill.App. 1995).

Pennsylvania appellate court overturns an arbitration award and trial court decision that reinstated a laborer at an airport who falsified his time cards. The relevant consideration is not an analysis of the employee's job duties, but of the type of misconduct.

     A laborer at a county airport was fired for "theft" of services. The arbitrator ordered reinstatement and a trial court confirmed the award. A three-judge appeals panel has reversed.

     The worker committed a "serious breach of trust" directly against his employer by refusing to surrender his identity badge, falsifying his time records and making his whereabouts at the airport unknown. In overturning the award, the panel said:

"An arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.

"... to permit an arbitrator to interpret the agreement as to require reinstatement of an employee who was determined to have engaged in egregious misconduct that strikes at the very core function of the public enterprise would be to deprive the employer of its ability to discharge that essential function. In short, a public employer cannot bargain away the ability to discharge an employee whose conduct strikes at the core function of the public enterprise."

     Allegheny County Airport Auth. v. Construction Gen. Lab. Union L-1058, #1413 C.D. 2004, 2005 Pa. Commw. Lexis 201, 177 LRRM (BNA) 2053 (Pa. App. 2005).

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New Mexico Supreme Court, in an appeal where a lieutenant was demoted to sergeant, affirms the denial of a prehearing demand that the city produce the records of all disciplinary actions in the past five years. The request was overly broad, burdensome, and the records sought had no relevance to the issues in his appeal.

     Management attempted to demote a police lieutenant to sergeant for failure to competently oversee the search for a missing child. He responded to the city manager that the proposed penalty was excessive, unfair and in variance with three cases where other officers received lesser or equal punishment for more serious infractions.

     Five days before his hearing was set to begin he sought an order compelling the city to produce "all prior cases involving the suspension, demotion or termination of an SFPD officer (of any rank) in the last five years."

     The city opposed the motion on the grounds that the information was confidential, that the probative value was slight and irrelevant, and that the demand was overly broad and unduly burdensome. The city's Grievance Review Board agreed and denied the discovery request.

     On review, the New Mexico Court of Appeals reversed; see 92 P.3d 11 (N.M. App. 2004). The appellate panel held, 2-to-1, that the appellant's due process rights were violated when the board denied him "access to information concerning the discipline of other officers who had committed similar infractions of departmental policies and procedures."

     The Supreme Court granted certiorari and reversed the appellate court, thus upholding the Review Board. The justices wrote:

>FONT COLOR="#0000A0">"Even similarly situated employees may be disciplined differently depending on the severity of the conduct and the consequences, the disciplinary history of the employee, and aggravating or mitigating factors.

"Further, a progressive discipline policy relates to the progression of discipline as it applies to the individual officer. A comparison of how other officers were disciplined does not appear to be more than marginally relevant."

     Archuleta v. Santa Fe Police Dept., #28,630, 2005 NMSC 6, 108 P.3d 1019, 2005 N.M. Lexis 118 (2005).

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Although an in-car videotape did not show that an officer had used excessive force, the fact that two coworkers had reported that he used unnecessary force justified his termination, especially when this was the second time that he had overreacted.

     Two police officers informed their sergeant that another officer used excessive force to subdue a driver, striking him once or twice in the head with his knee while pinning him to the ground.

     The police chief terminated the officer's employment for excessive force and the civil service commission confirmed. A trial court disagreed, observing that the in-car videotape did not support the finding that the officer had used excessive force, and that any knee-to-head contact was unintentional.

     The appellate court reversed, writing:

"... two of the other officers involved in the incident were concerned enough about [the appellant's] actions to report them to the supervising sergeant when he arrived at the scene, not a frequent occurrence among fellow police officers. We find the initial shove of the driver was unnecessary and provocative. We also find [the appellant] made at least one knee strike against the driver's head during the incident."

     The appellate panel gave more weight to the testimony of the two officers at the scene. The officer's use of excessive force in the incident called into question his ability to perform his job as a police officer, and considering a prior suspension for a similar incident, discharge was the appropriate sanction.

     Termination of his employment as a police officer was the reasonable next step in progressive discipline, they said, "for the protection of the public." Peterson v. Civil Serv. Cmsn. of Cedar Rapids, #5-093/04-0143, 2005 Iowa App. Lexis 257 (2005).

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Ninth Circuit affirms the rule that a probationary employee is not entitled to a name-clearing hearing if terminated without a stated reason. The fact that an investigative report was sent to the prosecutor is not a publication of stigmatizing allegations. Moreover, "an employee has no need for a name-clearing hearing in connection with criminal charges, because the criminal justice system adequately protects whatever procedural rights are due him."

     A probationary deputy sheriff was terminated, without a stated reason, and a copy of the investigation report was sent to the District Attorney. The DA filed criminal charges, but they were dismissed following a preliminary hearing.

     The ex-deputy and the union sued the county for an injunction and damages, claiming that the deputy was entitled to a name-clearing hearing because of the stigmatizing information in the report sent to the prosecutors.

     The Ninth Circuit concluded that no stigma could have attached to the termination because the sheriff gave no reason in the termination letter placed in the deputy's employment record and there was no public statements regarding any basis for the determination.

     More importantly, the panel held that the transmittal of an investigative report to the prosecutor did not constitute a publication of stigmatizing allegations.

     The panel also held that "an employee has no need for a name-clearing hearing in connection with criminal charges, because the criminal justice system adequately protects whatever procedural rights are due him."

     Riverside Sheriff's Assn. v. Co. of Riverside, #03-56007, 126 Fed. Appx. 840, 2005 U.S. App. Lexis 6304, 2005 WL 668648 (Unpub. 9th Cir. 2005).

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Appellate court overturns a NY labor board ruling that allowed police officers and other unionized public employees to have the assistance of a Weingarten representative during a criminal interview where the union member is a suspect.

     We previously reported that New York's PERB held that a police officer who is a member of a union is entitled to have his Weingarten representative present during a criminal interview. The Board said that while the conduct of criminal investigations of officers is not a mandatory topic for collective bargaining, the representative is there to assist an employee, not to negotiate with the employer. Rochester Police Locust Club and City of Rochester, Case #U-23938, 37 NYPER 3015, 2004 NYPER (LRP) Lexis 80 (NY PERB 2004).

     The city appealed, and in February a five-judge appellate panel reversed the PERB holding. In May, the state's highest court denied further review.

     The panel concluded that PERB "abused its discretion" in expanding a public employee's rights to include the presence of a union representative during a criminal investigation. It noted that New York has a strong public policy that prohibits union interference with criminal investigations. It wrote:

"... a collective bargaining agreement may not limit or restrict procedures that are used in a criminal investigation.... PERB's determination that a union representative must be present during a criminal interview violated that public policy."

     City of Rochester v. Public Empl. Rel. Bd. and Rochester Police Locust Club, #TP 04-01759, 15 A.D.3d 922, 790 N.Y.S.2d 788, 2005 N.Y. App. Div. Lexis 1068 (App. Div. 4th Dept.); review denied, 2005 N.Y. Lexis 1120 (N.Y. 2005).

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    • Editor's Comment: A public employee is entitled to the presence of his attorney if he or she is the focus of a criminal investigation. An officer who is interviewed as a criminal suspect has an absolute right to decline to answer any questions, or to insist that a lawyer of his choosing attend the interview.

     There is no professional, ethical or moral duty to participate in a criminal interview -- especially without the assistance of an attorney who would represent the officer in his personal and private capacity.

     AELE recommends that the following "warning" to be given to public employees, who are not under arrest, and are asked to be interviewed as part of a criminal investigation. This is a modification of the "Beckwith Warning" given to federal employees who are criminal suspects.

     This interview is part of a criminal investigation.

     1. You have the right to remain silent if your answer might incriminate you.

     2. Anything you say can be used against you as evidence in a disciplinary or civil proceeding or any future criminal prosecution involving you.

     3. If you refuse to answer a question because the answer may incriminate you, you cannot be disciplined solely for remaining silent.

     4. You do not have the right to remain silent about another person's commission of a crime, unless that information also implicates your involvement in a criminal offense.

     5. You have the right to consult an attorney of your choosing, and to have that attorney present to advise you during the interview.

     Note that the above warning is not appropriate under two circumstances. First, if the employee is under arrest, the Miranda warning is the proper admonition. Second, if the investigation is for disciplinary, non-criminal purposes, the Garrity warning is the appropriate advice of rights.

    • For an explanation of the rights of public employees under the Supreme Court decisions of Beckwith, Garrity, Miranda and Weingarten, see Interviews and Interrogations of Public Employees, an article appearing in the Law Enforcement Executive Forum (Nov. 2004). [PDF]

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Arbitrator reinstates an officer who, after an auto collision, declined to sign a statement without conferring with his union representative.

     Asking for the assistance of a labor representative, which is a right guaranteed under the Supreme Court's Weingarten decision, is viewed by some as an anti-agency animus.

     In 2003, the grievant was involved in a single car accident while on duty in Texas. He reported the accident promptly and, later that night, signed a form acknowledging that he understood his rights to union representation. As requested, he wrote and signed a memorandum regarding the vehicle damage.

     Around midnight, the grievant's immediate supervisor called him into his office and asked him to sign a reprimand letter. The grievant asked to show the document to a union representative before he signed it.

     The grievant was asked (1) if he understood the order, (2) understood the consequences of refusing the direct order, and (3) whether or not he was refusing the direct order. Although the grievant said he was not refusing the order, he persisted in asserting a right to union representation. After consulting with his union representative, the grievant returned and offered to sign, acknowledging the letter, but was denied the opportunity to do.

     Thereafter, his superiors reported that the grievant had refused to follow a direct order. He was terminated for insubordination, and the matter proceeded to arbitration.

     The arbitrator observed that the grievant was not at fault in the accident. In his judgment, the grievant deserved only an informal counseling at most; and informal counseling would have been as effective and less costly than a reprimand. He said that "Weingarten rights are triggered when management begins to investigate accusations against a member of the bargaining unit. Unions are entitled to represent employees in meetings management holds with employees in connection with an investigation."

     An employee must "reasonably believe" that the examination may result in disciplinary action against him or her. Here, the grievant was confused as to the meaning of the letter and was not given an explanation. The arbitrator wrote:

"How can one understand an order without knowing the consequences of compliance therewith? [The grievant] was ordered to sign a document that references an external procedure that he could not verify without more information. ... Knowledge of consequences is part of the requisite understanding in non-emergency situations.

"Placing one's signature on a document is not a rote exercise and should not be taken lightly. Signing a government document has legal consequences. Acknowledgements have legal effect."

     Terminating the grievant did not "promote the efficiency of the governmental services." He added that there are certainly valid reasons for paramilitary operatives to strictly adhere to lawful orders. Those involve threats to life and limb or dangerous situations.

     The problem here was that no such circumstances existed because the grievant was asked to sign a document. Reinstatement, back pay, and benefits were ordered. U.S. Customs and AFGE L-2455, 120 LA (BNA) 1397 (Mitchell, 2005).

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Arbitrator reduces the penalty of prematurely disengaging a dashboard videocamera after a traffic stop from 10 to 5 days suspension. There were no aggravating factors.

     The union admitted that the grievant made a mistake in turning off the video recorder in his vehicle, but it was near the end of a traffic stop and there was no allegation of misconduct. It recommended a verbal reprimand.

     The arbitrator said that management had a legitimate interest in insuring that the video recorder was on during the entire encounter. The taping policy, he said, "protects the officer from any future allegations of improper tactics and protects the Department and the officer from future liability."

     However, a 10-day suspension was excessive in light of the officer's discipline-free record. The penalty was cut to 5 days. City of Warren and Ohio PBA, 120 LA (BNA) 1332, FMCS #04-5377 (Adamson, 2004; rptd. 2005).

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Federal appeals court declines to enjoin a county jail management from requiring employees to submit to random patdowns and the removal of shoes and belts.

     In 2003 we reported that a federal judge in Pittsburgh ordered the warden of the county jail to stop requiring workers to take off their socks during random searches, but allowed jail management to require employees to remove their shoes and belts. Allegheny Co. Prison Employees Indep. Union v. Co. of Allegheny, #03-CV-1075 (Unpub. W.D.Pa. 2003). [See our March, 2003 issue.]

     In a 2004 decision, the district court found that searches of personnel entering a detention facility were necessary to control the entry of contraband into the facility and to safeguard the security of employees and inmates; see 315 F.Supp.2d 728 (W.D. Pa. 2004).

     The district judge also noted that employees at a jail have a diminished expectation of privacy, and that the need to stop contraband outweighed the privacy interests of the facility's employees.

     On appeal, the union claimed that the searches, conducted randomly and requiring the removal of outer garments, shoes and belts, but not socks, and same-sex patdowns over the abdomen and groin area (that did not involve groping or massaging) violated their Fourth Amendment rights.

     The three-judge appellate panel found that the district judge properly balanced the competing interests, when she concluded that the need to prevent the introduction of contraband outweighed the privacy interests of the employees.

     Allegheny Co. Prison Employees Indep. Union v. County of Allegheny, #04-197, 124 Fed. Appx. 140, 2005 U.S. App. Lexis 4560 (3rd Cir. 2005).

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Federal court refuses to order a test provider to lengthen the test period by 50% to accommodate an applicant with Attention Deficit Disorder. An inability to perform well on a standardized test does not substantially interfere with the major life activity of learning.

     A student with Attention Deficit Hyperactivity Disorder claimed that she needs one and a half times as long as others to complete tests because of an impaired ability to focus and concentrate. A national testing service declined the requested accommodation and she sued.

     A federal judge has declined to issue a preliminary injunction, because the plaintiff failed to show that she was likely to establish that she was "disabled" within the meaning of the ADA.

     The court noted a difference between what a psychologist means by "disability" and what the ADA means when it uses that term. A person might have a medically recognized "learning disability" and yet not have a "disability" within the meaning of the ADA.

     The fact that a person does poorly on standardized exams might be a result of many factors, "such as anxiety, stress, nervousness, cautiousness, poor organization, poor time management, lack of motivation, lack of appropriate preparation, or weakness in a particular subject matter."

     Under the strict language of the ADA, "an impairment that interferes with an individual's ability to perform a particular function, but does not significantly decrease that individual's ability to obtain a satisfactory education otherwise, does not substantially limit the major life activity of learning."

     Baer v. Natl. Bd. of Medical Examiners, #05-10724, 2005 U.S. Dist. Lexis 7796, 2005 WL 1027289 (D. Mass. 2005).

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Federal appeals court affirms the dismissal of a suit for wrongful death and injuries brought by the survivors NYC firefighters, claiming that Motorola intentionally sold the FDNY radios that are ineffective in high-rise buildings. Sept. 11th Victim Compensation Fund was the exclusive remedy of all claimants.

     Relatives of deceased New York City firefighters sued the city and Motorola, claiming that Motorola negligently and intentionally provided radio equipment that it knew to be ineffective in high-rise structures like the WTC Towers, causing many deaths.

     A District Court dismissed the action, holding that the federal September 11th Victim Compensation Fund provided the sole source of compensation. The Air Transportation Safety and System Stabilization Act, P.L .107-42, 115 Stat. 230 (2001) and the Aviation and Transportation Security Act, P.L. 107-71, 115 Stat. 597 (2001) precludes claims against third parties.

     The post 9-11 air transportation laws provided quick, no-fault compensation for the families of the terrorist attacks. The District Judge held that the waiver provisions preclude a suit for damages against third parties.

     A three-judge panel of the Second Circuit has affirmed, writing:

"It is clear to us that plaintiffs' claims ... arose "as a result" of the terrorist-related attacks. ... In plaintiffs' view, defendants' acts independently caused plaintiffs' injuries. But, in fact, the injuries to plaintiffs and their loved ones resulted from a series of interrelated events that began with the terrorist attack. Even assuming independent, successive tortious acts by both the terrorists and defendants ... we are hard pressed to find plaintiffs' damages did not result - at least in part - from the terrorist attacks."

     The panel noted "the great sacrifice that many of New York's bravest men and women made on behalf of those who were trapped in the burning towers," but said they were required to "assess the law as it is given to us by Congress."

     Virgilio v. City of New York, #04-1942, 407 F.3d 105, 2005 U.S. App. Lexis 7441 (2d Cir. 2005), affirming #03cv10156, 2004 U.S. Dist. Lexis 3636, 2004 WL 433789 (S.D.N.Y. 2004).

    • Click here to view the Second Circuit's decision on the Internet. [PDF]

    • September 11th Victim Compensation Fund of 2001 website.

    • "Lessons of Non-Interoperability in Public Safety Communication Systems," Univ. of New Hampshire (2001). [PDF]

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Federal appeals court affirms dismissal of an ex-FBI translator who claims that she was fired after she reported security problems and incompetence. Consideration of state secrets prevented her from maintaining her lawsuit.

     Some have said the most dangerous job in the FBI is to be a whistleblower. An FBI linguist made multiple reports of security lapses and gross incompetence to her superiors. Management responded by firing her. She sued and sought specific documents.

     The Bureau responded that the disclosure of the classified information would damage national security. The FBI's motion for summary judgment was granted except for three documents. The plaintiff appealed.

     A three-judge panel of the D.C. Circuit has affirmed in a summary and unpublished Order. The District Court had ruled, that because the Attorney General properly invoked of the state secrets privilege, dismissal of all claims was the necessary result:

"Accordingly, because the Court finds that documents related to the plaintiff's employment, termination and security review that comprise the system of records are privileged, and because the plaintiff would be unable to depose witnesses whose identities are privileged or to otherwise identify through discovery the individual or individuals who purportedly released the privileged information, the plaintiff is also unable to proceed with her Privacy Act claims."

     Edmonds v. Dept. of Justice, #04-5286, 2005 U.S. App. Lexis 8116 (Unpub. D.C. Cir. 2005) affirming 323 F.Supp.2d 65 (D.D.C. 2004) and 272 F.Supp.2d 35 (D.D.C. 2003).

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Applicant Rejections

     Under Illinois law, the tort of wrongful refusal to hire is not recognized. Griggs v. Marion Hosp. Corp., #2004-CV-4241, 2005 U.S. Dist. Lexis 7701, 2005 WL 975238 (S.D. Ill. 2005).

     N.Y. appellate court affirms the rejection of a police officer applicant who tested positive for barbiturates, a controlled substance. Police agencies have wide discretion to determining the fitness of candidates, particularly police officers. Stephens v. Suffolk County, #2003-10030, 15 A.D.3d 589, 789 N.Y.S.2d 740, 2005 N.Y. App. Div. Lexis 1852 (2d Dept. 2005).

Back Pay Claims and Awards

     Texas appellate court orders a city to pay accumulated sick, vacation, and holiday leave to a reinstated firefighter after his termination was annulled. Waco v. Bittle, #10-03-00098-CV, 2005 Tex. App. Lexis 2107 (2005).

Civil Service

     Office of Personnel Management issues regulations to implement the Workforce Flexibility Act of 2004, 5 U.S. Code §5753-54, by enabling recruitment, relocation, and retention incentive payments for federal personnel. 5 C.F.R. 530 and 575 O.P.M. interim regulations, 70 Fed. Reg. 25731 (5/13/05) [PDF].