Georgia's Supreme Court affirms a ruling that 27 civil service deputies, most of them white, were wrongly terminated by the county's new black sheriff.

     The deputies were fired by Clayton County Sheriff on Jan. 3, 2005, his first day in office. Some had supported the incumbent, who had lost. The deputies sued, alleging discrimination and political retaliation.

     However, the legal issue turned on whether the deputies were protected by civil service. Here, the county civil service law was specifically provided for in the Georgia Constitution.

     Hill v. Watkins, #S05A2107, 280 Ga. 278, 627 S.E.2d 3, 2006 Ga. Lexis 160 (Ga. 2006).

     • Click here to view the opinion on the Internet.

     Editor's Note: At common law, deputies serve at the pleasure of the sheriff. If the office of sheriff is created by a provision in the state constitution, many courts have ruled that statutes cannot abrogate the common law powers of a sheriff. If a civil service system also is provided for in the constitution, the legislature can adopt civil service protections for deputy sheriffs.

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Although a pension board found that a police officer was not longer disabled, the NYPD was justified in rejecting his return to duty for psychological reasons.

     In 1999, the N.Y. City Employee Retirement System found that a police officer, who had been on a stress pension since 1992, was no longer psychologically disabled and certified him for reinstatement.

     During the screening process, two psychologists reported that he had continued problems with stress tolerance, he posed "too high a risk to carry a firearm" and was not qualified for the duties of a police officer.

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     The officer appealed to the Civil Service Commission. In a 2-to-1 decision, the Commission ordered his reinstatement. The Police Commissioner sought judicial review. The state's highest court reversed, writing:

"The sole question before us therefore is whether the [Civil Service] Commission's reinstatement determination was rational. While the Commission had evidence that petitioner was no longer psychologically disabled, there was no evidence that -- given his background and lack of any employment for a decade (or more) -- he was fit for the stresses of police work".

     The reinstatement determination "was not rational." Ciacciullo v. Kelly; City of N.Y. v. NYC Civ. Serv. Cmsn., #50, 2006 N.Y. Lexis 958 (N.Y. 2006).

     Editor's Note: Because the elevated physical and psychological requirements for firefighters and law enforcement and correctional officers, an employee might be rejected for active duty, but is ineligible for initial or continuing disability benefits.

     The latter determination might be based on a finding that while the employee is unfit for public safety service, he or she is not disabled from other government jobs or private sector employment.

     In some states, an injury or disabling condition arising in the line of duty is defined differently for firefighters, corrections officers and police officers. A pension board must apply the appropriate standard for each category of a disability applicant. Jensen v. E. Dundee Fire Prot. Dist. Pension Fund, #2-05-0301, 362 Ill. App.3d 197, 839 N.E.2d 670, 2005 Ill. App. Lexis 1162 (2nd Dist. 2005).

     In Illinois, an appellate court recently held that a civil service board decision to medically discharge a firefighter for neck and back injuries was not barred by a prior denial by the Pension Board of a disability application. "Neither res judicata nor collateral estoppel applies ... [and] it is reasonable to conclude that the [legislature] deliberately set the bar lower for a municipality seeking to discharge an unfit firefighter than for a firefighter to obtain a disability pension." Dowrick v. Vil. of Downers Grove, #2-05-0054, 840 N.E.2d 785, 2005 Ill. App. Lexis 1257 (2005).

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Judge refuses to overturn a $15 million award to three LAPD officers who claimed the City of Los Angeles made them scapegoats for the Rampart corruption scandal, finding there was enough evidence for the jury's conclusion that the city "ruined the lives of three highly skilled" policemen and that superiors "had no probable cause" to arrest the officers.

     In early May, U.S. District Judge Cormac Carney denied a motion for a new trial. The City of Los Angeles is appealing the verdicts, which were $5,000,001 each.

     The plaintiffs, an officer and two sergeants, were accused by a former officer which led to the Rampart scandal. Anti-gang officers alleged beat, robbed, and framed innocent people. Many convictions were overturned and millions of dollars in settlements were paid.

     Although a jury convicted the three officers in 2000 of conspiracy to obstruct justice, a Superior Court judge set aside the convictions, citing faulty jury instructions. The District Attorney's Office dismissed the charges in 2004.

     The plaintiffs claimed that their superiors ignored problems with witness credibility and opportunistically used them as an example of the LAPD's reform efforts. Harper v. City of Los Angeles, #8:03-cv-00959, Docket items 482 and 427-429 (C.D. Cal. 2006).

     • Click here to view the docket entries on the AELE website.

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Supreme Court declines to review a holding that struck down a California law making it a misdemeanor to knowingly file a false complaint against a peace officer. Agencies in the Ninth Circuit have been advised by counsel to remove any language from internal complaint forms that warn a citizen that he or she can be prosecuted for making a false complaint.

     A citizen who was charged with theft filed an internal affairs complaint alleging that the arresting officers used excessive force. Although he did not use an official complaint form, his letter was sent under oath. Subsequently, the District Attorney charged the citizen with violating California Penal Code §148.6, which criminalizes filing a knowingly false allegation of misconduct against police officer.

     The citizen was convicted and sought federal habeas corpus. The District Court denied relief, but a three-judge appellate panel reversed. The Ninth Circuit noted that "false complaints of peace officer misconduct cause valuable state resources to be expended investigating false claims rather than investigating valid claims." Additionally, false complaints made against a peace officer "may lead to unwarranted sanctions against the officer."

     The panel found the code was unconstitutional, because it was a content-based restriction on free speech. A peace officer or witness who lies during an investigation is equally to blame for wasting public resources by interfering with the expeditious resolution of an investigation -- but cannot be prosecuted under §148.6 Chaker v. Crogan, #03-56885, 428 F.3d 1215, 2005 U.S. App. Lexis 23728 (9th Cir. 2005).

     The Supreme Court of the U.S. has denied a petition for review of the to Ninth Circuit's decision. Crogan v. Chaker, #05-1118, 2006 U.S. Lexis 3900 (2006)

     Although the California Supreme Court had upheld §148.6. People v. Atkinson (Stanistreet), 29 Cal. 4th 497 (2002). Jones & Mayer, counsel for the California Police Chiefs Assn. and California State Sheriff's Assn. have advised all California law enforcement agencies to remove from their I-A complaint forms, language which currently reads:

"It is against the law to make a complaint that you know to be false. If you make a complaint against an officer knowing that it is false, you can be prosecuted on a misdemeanor charge."

     • Click here to view the Ninth Circuit's opinion on the Internet.

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Judge concludes that the termination of a public employee for Internet surfing, after being warned against the activity, was too harsh a punishment. Management failed to prove that the worker failed to satisfactorily perform his official duties in a timely manner.

     A Dept. of Education employee in New York City was fired for various deportments, including Internet surfing after being warned against non-business use of his computer. However, there was no showing that he neglected his duties, or that he surfed other than when he had spare time. The Administrative Law Judge wrote:

"It should be observed that the internet has become the modern equivalent of a telephone or a daily newspaper, providing a combination of communication and information that most employees use as frequently in their personal lives as for their work. For this reason, City agencies permit workers to use a telephone for personal calls, so long as this does not interfere with their overall work performance.

"Many agencies apply the same standard to the use of the internet for personal issues. This widespread recognition that internet use is essential to living in the technological world does not excuse respondent's disobedience to [his supervisor's] order.

"However, it does suggest that the order that only respondent was prohibited from using the internet for any personal reasons was unusually harsh and arbitrary, motivated by anger rather than a concern for office productivity."

     Dept. of Educ. v. Choudhri, N.Y.C. Trials & Hearings # 722/06, 44 (2156) G.E.R.R. (BNA) 508 (2006).

     • Click here to view the opinion on the Internet.

     Editor's Note: Insubordination is a separate offense, and usually is punished more severely than for minor misconduct. Here, the employee admitted the conduct, but claimed it was done only after his assignments were completed.

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Arbitrator reinstates a firefighter who swiped a lieutenant's ATM card as a joke; punishment reduced to a more than three-year suspension.

     At arbitration the grievant explained a "joke", taking his lieutenant's credit card from his knapsack, and attempting to make cash withdrawals without the Personal Identification Number

     The arbitrator found that the joke was "stupid." He found that practical joke explanation, "while not an excuse," warrants reduction of the penalty from termination to a three-year suspension.

     City of Philadelphia and IAFF L-22, 122 LA (BNA) 277, AAA 14-390-00964-02 (Lang, 2005).

     • Click here to view the award on the AELE website.

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New Jersey appellate court holds that an employer has an obligation to inform law enforcement agencies when a worker is accessing kiddie porn in the workplace.

     An appellate panel found an employer liable for negligence, and said that management had a duty not only to investigate the employee's improper use of his work computer but also to take prompt and effective action to stop him from continuing to engage in that activity.

     Because it is a state and federal crime to possess or view child pornography, the employer "had a duty to report [the] employee's activities to the proper authorities and to take effective internal action to stop those activities, whether by termination or some less drastic remedy."

     Doe v. XYC Corp., #A-2909-04T2, 887 A.2d 1156, 382 N.J. Super. 122, 2005 N.J. Super. Lexis 377, 23 IER Cases (BNA) 1549 (App. Div. 2005; rptd. 2006).

     • Click here to view the opinion on the Internet.

     Editor's comment: This case has repercussions, not just involving child pornography, but any situation where an employee is found to be engaging in criminal and predatory activity.

     First, a supervisor might be civilly liable for failing to report unlawful conduct that should generate a criminal investigation.

     Second, command personnel (managers) also could be liable if the direct supervisor(s) failed to initiate a criminal investigation.

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Federal appeals court rejects a suit by a prison chaplain who was disciplined after refusing to allow a gay inmate to lead the choir during a Protestant service.

     A chaplain for the Ohio Dept. of Rehabilitation and Correction sued, claiming that his First Amendment rights were abridged when he was disciplined after refusing to allow the inmate to lead the choir during a Protestant service because he was a homosexual.

     The District Court dismissed the action. A three-judge appellate panel has affirmed, finding that the plaintiff's personal opinions on whether the Protestant faith condemns homosexuality as a sin do not constitute matters of public concern.

     They also noted that management believed that "it was bad penology to exclude an inmate from a program simply because of a characteristic such as sexual orientation, thereby creating tensions among the prison population."

     Akridge v. Wilkinson, #05-3015, 2006 U.S. App. Lexis 10671 (Unpub. 6th Cir. 2006), affirming 351 F.Supp.2d 750.

     • Click here to view the opinion on the Internet.

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N.J. appellate court holds that a compulsory annual medical examination of police officers, which requires disclosure of medical history as well as blood and urine testing, does not violate the state or federal constitutions, and is less intrusive on privacy than random drug and alcohol testing.

     An annual medical exam conducted by the New Jersey Transit Corporation to determine if transit police are physically capable of performing their duties does not violate the Fourth Amendment or its New Jersey counterpart.

     The test had multiple components including a medical history; blood count with differential; liver function; cardiac profile; electrolytes; urine; pulmonary function; electrocardiogram; drug and alcohol testing; Mantoux (tuberculin) test; vision and hearing screens and lead testing

     The presiding judge noted that while "an adverse determination may result in termination, no officer has the right to hide his or her lack of fitness by asserting a privacy interest as a barrier to a physical examination,"

     The judge added, "more importantly, no officer who is unfit for the position has the right to remain in the position."

     The testing fell within the exception for "administrative searches of pervasively regulated industries pursuant to a substantial government interest." Law enforcement is highly regulated, and management has a strong interest in ensuring that police officers can perform their jobs.

     However, the court found that the agency's confidentiality provision was inadequate and ordered management to develop security provisions with an express policy prohibiting unauthorized disclosure of confidential medical information.

     The court also noted that it has previously held that medical examinations are nonnegotiable management rights in the public employment bargaining context, citing Bridgewater v. PBA L-174, 196 N.J. Super. 258 (App. Div. 1984). Moreover, a medical exam does not require individualized reasonable suspicion, citing ATU v. Cambria City Transit Auth., 691 F.Supp. 898 (W.D. Pa. 1988). The judge added:

"Police officers are members of a highly regulated industry and are therefore subject to the practice of suspicionless drug testing to monitor their physical fitness and capabilities."

     New Jersey Transit PBA L-304 v. New Jersey Transit, #A-5628-03T2, 384 N.J. Super. 512, 895 A.2d 472, 2006 N.J. Super. Lexis 108 (App. Div. 2006).

     • Click here to view the opinion on the Internet.

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An intent to deceive is a necessary element of the offense of untruthfulness.

     A California appellate court has affirmed the reinstatement of a deputy sheriff that was fired for untruthfulness.

     Although General Order §202.02 required officers to "speak the truth at all times," due process prevents the termination of a public employee for unintentionally saying something untrue.

     The decision is unpublished and non precedential. Smith v. Co. of Riverside, #E037260, 2006 Cal. App. Unpub. Lexis 2344 (4th Dist. 2005).

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

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Arbitration Procedures

     A law permitting binding arbitration of a promotions procedures dispute did not apply to the a fire dept. that had years of intentional and unintentional discrimination against minorities and women, and would interfere with the city's duty to end biased promotional practices. San Fran. Fire Fighters L-798 v. C&C of San Francisco, #S131818, 2006 Cal. Lexis 5932 (Cal. 2006).

Attorneys' Fees and Legal Defense Rights

     The Civil Service Reform Act grants a "prevailing party," not the attorney, a legally protected interest in claiming attorney's fees. The lawyer lacks standing to appeal an award for fees that is less than requested. Willis v. Govt. Accountability Office, #05-6003, 2006 U.S. App. Lexis 12082 (Fed Cir. 2006)

Collective Bargaining - Duty to Bargain

     Arbitrator upholds management's ending of a 4-10 workweek when the contract only provided for that schedule on a permissive, non-mandatory basis. Dayton FOP L-44 and City of Dayton, AAA # 52-390-00335-04 (Klein, 2006).

     Michigan arbitrator finds that management did not violate a bargaining agreement when it unilaterally reverted from a 12-hour shift schedule to an eight-hour shift schedule. City of Jackson and Police Labor Council L-70, 121 LA (BNA) 1582 (McDonald, 2005; rptd. 2006).

Contracts, Consultants and Outsourcing

     Appeals court upholds a judgment against a sheriff's dept. for copyright infringement. Management had installed software at more computer stations than were licensed, and it was not a defense that the total number of workstations that were able to access the installed software at one time did not exceed the total number of licenses purchased by the department. Wall Data Inc. v. Los Angeles Co. Sheriff's Dept., #03-56559, 2006 U.S. App. Lexis 12100 (9th Cir. 2006).

Disciplinary Procedures - In General

     Arbitrator annuls a suspension because an I-A sergeant delivered the notice. Texas law requires the department head to personally notify an employee of his or her suspension. City of Fort Worth and Individual Grievant "C", #CSC-005-2005HP, 122 LA (BNA) 211 (Moore, 2005).

Disciplinary Punishment - In General

     Federal Merit Systems Protection Board upholds the 20-day disciplinary suspension of a Supervisory Border Patrol Agent who failed to make a criminal record check. Velez v. Dept. of Homeland Security, #DE-0752-04-0407-I-1 (MSPB 2006).

Domestic Partner Rights

     A new Illinois Administrative Order extends health care benefits for most state employees to cover same-sex domestic partners (May 8, 2006).

Drug Abuse and Rehabilitation

     Oregon Supreme Court rules, under its state disabilities law, that an employer is not obligated to retain workers who use medical marijuana. Washburn v. Columbia For. Prod., #S52254, 2006 Ore. Lexis 354 (Ore. 2006).

Family, Medical & Personal Leave

     Fourth Circuit holds that the Family and Medical Leave Act does not provide an employee with an absolute right to be restored to his or her previous job on return from approved leave. Yashenko v. Harrah's NC Casino, #05-1256, 2006 U.S. App. Lexis 10469 (4th Cir. 2006).

     Seventh Circuit holds that management can impose stricter return-to-work provisions than those in FMLA -- and the employee was aware of the employer's return-to-work expectations. Harrell v. U.S. Postal Service, #03-4204, 2006 U.S. App. Lexis 11072 (7th Cir. 2006).

     Eighth Circuit holds it was not unlawful for a city to run accrued sick leave and FMLA leave concurrently and to limit a police officer's total leave to 12 weeks. Slentz v. City of Republic, #05-1663, 2006 U.S. App. Lexis 11746, 11 WH Cases2d (BNA) 769 (8th Cir. 2006).

Handicap Laws / Abilities Discrimination - Specific Disabilities

     Eighth Circuit holds that a person with a mental impairment that substantially limits his or her ability to think and concentrate is disabled under the ADA. Battle v. United Parcel Service, #04-4123, 438 F.3d 856, 2006 U.S. App. Lexis 4031 (8th Cir. 2006).

Injuries to Employees

     Wisconsin appellate court holds that a county could not impose subrogation liens on settlements recovered from third parties by sheriff's deputies who were injured in vehicle collisions. Opichka v. Racine Co., #2005AP1807, 2006 Wis. App. Lexis 289 (2006).

Military Leave

Claims brought under the Uniformed Services Employment and Reemployment Rights Act are subject to arbitration under the Federal Arbitration Act. Garrett v. Circuit City Stores, #04-11360, 2006 U.S. App. Lexis 11755 (5th Cir. 2006)

Privacy Rights

     An employee at a Massachusetts college office who learned that she had been undressing in a room with a hidden surveillance camera did not present a valid Fourth Amendment or state privacy claim because her office was an "open work area" with no reasonable expectation of privacy. Nelson v. Salem State College, #SJC-09519, 446 Mass. 525, 845 N.E.2d 338, 2006 Mass. Lexis 118 (2006).

Race Discrimination - In General

     Seventh Circuit upholds a summary judgment for a sheriff's dept. where the plaintiffs were unable to prove that they were treated differently because of their race. Scaife v. Sheahan, #04-2966, 2006 U.S. App. Lexis 11580 (7th Cir. 2006).

Race or Sex Discrimination - Disparate Discipline

     Seventh Circuit affirms a jury verdict in favor of a corrections sergeant that alleged he was disciplined for sexual harassment more severely than white officers. Davis v. Wisc. Dept. of Corrections, #05-1946, 2006 U.S. App. Lexis 10460 (7th Cir. 2006).

Sex Discrimination - In General

     Eighth Circuit holds that it is not unlawful under Title VII for an employer to discharge an employee for consensual sexual conduct with a superior. Tenge v. Phillips, #05-2803, 2006 U.S. App. Lexis 10586 (8th Cir. 2006).

Union and Associational Activity

     NLRB finds that an employer could erect no trespassing signs giving notice that all activities were being monitored by video camera. Signs acknowledging the existence of video surveillance did not restrain, coerce, or interfere with the employee's rights to organize. Consolidated Biscuit and AFL-CIO, #8-CA-33402, 346 NLRB No. 101 (NLRB 2006).

     Illinois appeals court reinstates a suit by a police officer who claimed he was passed over for promotion in retaliation for his first amendment-protected activities as a union representative. Schlicher v. Board of Fire and Police Cmsnrs. of Westmont, #2-05-0774 2006 Ill. App. Lexis 144 (2d App. Dist. 2006).

Whistleblower Requirements and Protection

U.S. Office of Personnel Management issues final regulations to implement agency reimbursement provisions of Title II of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act). 71 (90) Fed. Reg. 27185 (5/10/2006).

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     Addiction and rehabilitation: Health & Human Services National Alcohol and Drug Addiction Recovery informational website.

     Disability law - article: "How Courts, Employers, and the ADA Disable Persons with Bipolar Disorder," Ramona Paetzold, 9 (2) Employee Rights and Employment Policy Journal (2005).

     Occupational health & safety - report: Centers for Disease Control, "Health Hazard Evaluation of Police Officers and Firefighters After Hurricane Katrina--New Orleans," 55 (16) M&MWR (CDC) 456-458.

     Police oversight - presentation: Does Oversight Reduce Policing? Evidence from the Cincinnati Police Dept. After the April 2001 Riot, by Lan Shi, Dept. of Economics, Univ. of Washington, 2006 Annual Meeting of the American Economic Assn.

     Transsexuals - legal rights: "The expanding rights of transsexuals in the workplace," 21 (2) The Labor Lawyer (ABA) 121-139.

Reference:

     • Abbreviations of Law Reports, laws and agencies used in our publications.
     • AELE's list of recently noted employment law resources.  
     • Discrimination Laws plus EEOC Regulations and Policy Guidance