AELE LAW LIBRARY OF CASE SUMMARIES:
Employment & Labor Law for Public Safety Agencies
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Civil Service
A Commissioner of Corrections who resigned under pressure during an investigation of his oversight of a state hospital had no right under Massachusetts state law to revert to a tenured civil service correction officer position he last held in 1992. He sought judicial review of the Civil Service Commission’s decision concluding that the right to revert to a civil service position applies only to involuntary terminations, not voluntary resignations, and because he voluntarily resigned, no “termination of his service” had occurred within the meaning of the law. The highest court in Massachusetts affirmed, holding the Commission’s interpretation of this ambiguous statutory language was reasonable, and that the Commission correctly concluded that the plaintiff’s resignation was voluntary. Spencer v. Civil Service Commission, #SJC-12326, 479 Mass. 210, 2018 Mass. Lexis 166.
The highest court in New York ruled that the New York State Public Employment Relations Board erred in finding that the city engaged in an improper employment practice by adopting police disciplinary procedures other than those in its collective bargaining agreement with police officers because the more general Civil Service Law art. 14, on public employees’ collective bargaining, was superseded by the more specific Second Class Cities Law §§ 131 and 133, providing detailed police discipline procedures, so police discipline was not a collective bargaining subject. Such bargaining was now prohibited. The city's collective bargaining on police discipline did not judicially estop its different procedures because it bargained before a decision that statutory grants of local control made police discipline an improper collective bargaining subject. City of Schenectady v. N.Y. State Public Employment Relations Board, 2017 NY Slip Op 07210, 2017 N.Y. Lexis 3074.
A federal appeals court overturned a grant of summary judgment to a defendant town on a fire chief’s claim that he was entitled to notice and an opportunity to respond before being terminated. There was disputed evidence sufficient to preclude summary judgment on the issue of whether the chief was a member of the Louisiana civil service and therefore had a property interest in the job entitling him to due process before being fired. Maurer v. Independence Town, #16-30673, 2017 U.S. App. Lexis 17142 (5th Cir.).
A former FBI agent sued the Justice Department
under the Administrative Procedures Act (APa), claiming that the Deputy Attoney
General's decision upholding a ruling of the Office of Attorney Recruitment and
Management (OARM) that she had not been constructively discharged and denying
her back pay was arbitrary and capricious. She had previously filed a lawsuit
concerning her employment contending that the Office of Professional
Responsibility (OPR) had not conducted its investigation about her complaints
as required under applicable regulations and seeking injunctive relief under
the APA. The employer's motion to dismiss was granted in the earlier lawsuit,
based on the Civil Service Reform Act (CSRA) expressly barring judicial review
of claims within the scope of the CSRA. The decision in the prior case, and the
exclusivity of the CSRA barred her from relitigating the issues through her
latest lawsuit. Turner v. DOJ, #14-3678, 2016 U.S. App. Lexis 2649 (8th Cir.).
A Centers for Disease Control
(CDC) employee working in a bio-terrorism preparedness plan claimed that he was
fired in retaliation for reporting perceived public health threats. A federal
appeals court upheld the dismissal of the plaintiff's claims under the Federal
Tort Claims Act (FTCA), 28 U.S.C. 1346(b) and 2671 et seq., holding that the
FTCA claims were barred by the Civil Service Reform Act of 1978, 5 U.S.C. 1101
et seq., which was his sole remedy for his claims. Tubesing v. United States,
#15-30347, 2016 U.S. App. Lexis 94 (5th Cir.).
Six City of Boston police officers fired for
testing positive for cocaine have been ordered reinstated with back pay by the
Massachusetts Civil Service Commission which held that “the present state of
hair testing for drugs of abuse ... does not meet the standard of reliability
necessary to be routinely used” to terminate a public employee. In Re: Boston
Police Depart. Drug Testing Appeals, #D-01-1409, Massachusetts Civil Service
Commission (March 2013).
A former federal probation officer sued the U.S.
government, claiming that he was improperly fired. The reason given for his
termination was that he was negligent in the supervision of a convicted
defendant who was killed while on release pending sentencing. The Court of
Federal Claims' dismissal of the lawsuit for lack of jurisdiction was upheld by
a federal appeals court on the basis that the Civil Service Reform Act of 1978
(CSRA) applied to classify the plaintiff as a member of the "excepted
service," barring him from pursuing such a lawsuit. The law applies to all
branches of the federal government, not just to employees of the Executive
branch, as the plaintiff argued. It applied to him as an employee of the
Judicial branch. Semper v. U.S., #12-5003, 2012 U.S. App. Lexis 18880 (Fed.
Cir.).
The U.S. government fired a number of employees of
executive branch agencies under a statute barring such employment of persons
who knowingly and willfully failed to register for the Selective Service as
required by law. The employees sued, claiming that the law under which they
were fired was an unconstitutional bill of attainder and also amounted to sex
discrimination, since only males were required to register for Selective
Service. The U.S. Supreme Court ruled that the Civil Service Reform Act of
1978, 5 U.S.C. Sec. 1101 et seq. barred the federal district courts from
deciding the case. The employees needed to bring their claim before the Merit
System Protection Board (MSPB), despite that board's professed lack of
authority to decide constitutional questions, and could then seek review in the
U.S. Court of Appeals for the Federal Circuit. Elgin v. Dept. of Treasury,
#11-45,183 L. Ed. 2d 1, 2012 U.S. Lexis 4461.
White House directs all executive branch agencies
to streamline the hiring process, eliminating essay-style questions and to use
a "category rating" approach. Presidential Memorandum, Improving the
Federal Recruitment and Hiring Process, 75 (33) Federal Register 27157-27159
(5/14/2010).
As a creature of statute, a Civil Service
Commission possesses only those powers conferred upon it by law. “Any authority
it exercises must find its source within the law pursuant to which it was
created, and any action or decision taken by it in excess of or contrary to its
authority is void.” Genius v. County of Cook, 1-08-3277, 2010 Ill. App. Lexis
110 (1st Dist.).
California appellate panel holds that a
government employee hired into a position expressly classified as exempt from
civil service is not entitled to the protections of the civil service system
upon the employee's release from the position, even if a court finds that,
based on the duties of the position, it should not have been classified as
exempt. Kreutzer v. C&C of San Francisco, #A116389, 2008 Cal. App. Lexis
1355 (1st Dist.).
Federal court holds that a terminated Kentucky
homeland security civil servant must establish with evidence that her
Democratic affiliation was a substantial or motivating factor in the decision
to terminate her. And if she meets that burden, to avoid liability, the
defendants need to show that they would have fired her anyway, even if she were
a Republican. Back v. Hall, #07-5934/07-5935, 2008 U.S. App. Lexis 17057 (6th
Cir.).
California appellate court holds that a tie vote
by civil service commissioners results in an affirmance of a termination by the
department head. Lopez v. Imperial Co. Sheriff's Office, #D051410, 2008 Cal.
App. Lexis 1135 (4th Dist.).
Due to serious overcrowding, the Governor had
authority to declare an emergency and to contract with out-of-state private
prisons to handle the overload of inmates. Doing so did not violate state
constitution's civil service mandate. California Correctional POA v.
Schwarzenegger, #C055327, 2008 Cal. App. Lexis 832 (3rd Dist.).
U.S. Office of Personnel Management adopts a
final rule authorizing the use of retention bonuses to keep key federal
employees from quitting agencies that are restructuring or relocating their
offices. Retention Incentives, 72 (221) Fed. Reg. 64523-528 (Nov. 16, 2007).
The U.S. Office of Personnel Management has
proposed new regulations to govern the use of a critical position pay authority
that allows higher rates of pay for positions that require a very high level of
expertise in a scientific, technical, professional, or administrative field and
are critical to an agency's mission. Proposed Rules: Critical Position Pay
Authority, 5 CFR Part 535, RIN 3206-AK87, 2 (79) Federal Register 20440-20442
(Apr. 25, 2007).
Whether summarily terminated, or just not
reappointed after a new constable takes office, deputy constables in Dallas,
Texas, are covered by the county's civil service system and cannot be
discharged without just cause. County of Dallas v. Wiland, #040247, 2007 Tex.
Lexis 149, and Co. of Dallas v. Walton, #04-0631, 2007 Tex. Lexis 147 (Tex. 2007).
President G. W. Bush delegates the authority to
adopt special pay rates for federal employees that remedy recruitment and
retention problems and, to designate as critical, certain categories of
positions within an agency, that are eligible for higher pay. Executive Order
13415, signed Dec. 1, 2006, FR Doc. 06-9561, 71 (233) Federal Register
70639-70641 (12/5/06). {N/R}
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. Hill v. Watkins, #S05A2107, 280 Ga. 278, 627 S.E.2d 3, 2006
Ga. Lexis 160 (Ga. 2006). [2006 FP Jul]
U.S. Office of Personnel Management issues a
regulation granting non-DoD agencies direct hiring flexibility for positions
that are difficult to fill; the authority ends Sep. 30, 2007. Examining System,
C.F.R. §337.204(c) and §337.206(d) and (e), 70 (149) Federal Register 44847
(Aug. 4, 2005). {N/R}
California Supreme Court overturns a state law
and bargaining agreements that incorporates seniority in state service into
hiring and promotional decisions. Cal. State Pers. Bd. v. Cal. St. Employees
Assn., #S122058, 2005 Cal. Lexis 8225 (Cal. 2005). [2005 FP Nov]
Illinois appellate court overturns the
appointment of a jail director, because her name was not on the list of three
candidates certified by the Corrections Board, and the law limits the sheriff's
choices to those nominees. "If the sheriff has a problem with the statute,
his complaint should be directed to the legislature." Read v. Sheahan,
#1-041-04-3225, 2005 Ill. App. Lexis 683 (1st Dist. 2005). {N/R}
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). {N/R}
Dept. of Defense and the Office of Personnel
Management issue proposed regulations to establish the National Security
Personnel System (NSPS), as authorized by the National Defense Authorization
Act of 2003 (P.L. 108-136). The NSPS governs basic pay, staffing,
classification, performance management, labor relations, adverse actions, and
employee appeals. In a lawsuit filed in Washington, a national union claims
that the DoD violated 5 U.S.C. §9902(m)(3), which requires union involvement in
the development of the personnel system. AFGE v. Rumsfeld, #05-CV-00367
(D.D.C., filed 2/23/05). National Security Personnel System Proposed Rules, 70
(29) Federal Register 7552-7603 (14 Feb. 2005). {N/R}
Dept. of Homeland Security and the Office of
Personnel Management issue regulations to establish a new human resources
management system. Dept. of Homeland Security Human Resources Management
System: Final Rule, 70 (20) Fed. Reg. 5271-5347 (Pub. Feb. 1, 2005). [2005 FP
Apr.]
Civil Service President signs legislation giving
federal agency management greater flexibility for the recruitment, training and
retention of personnel. It also authorizes additional starting pay and bonuses
for workers with needed skills. Recruitment and retention bonuses are
contingent on written term agreements, not to exceed four years. Federal
Workforce Flexibility Act, Public Law #108-411, adding or amending 5 U.S. Code
§§4121, 5334(b), 5362, 5363, 5550b, 5753, 5754, 6303(e) and (f) (2004). {N/R}
Federal government publishes rules to establish a
performance-based pay system for senior-level executives, scientists, and
professional employees. Nine criteria will be used in the determination
process. Senior Executive Service Pay and Performance Awards and Aggregate
Limitation on Pay, 69 (145) Fed. Reg. 45535-45546 (July 29, 2004). {N/R}
The transfer of several functions from the Civil Service
Cmsn. to the city's director of personnel was unlawful. The personnel director
is not independent and the purpose of a Civil Service Cmsn. is to protect
police department employees from the potential prejudices of management.
Seattle Police Officers' Guild v. City of Seattle, #52042-3-I,89 P.3d 287, 2004
Wash. App. Lexis 832 (2004).{N/R}
California Supreme Court depublishes an appellate
court decision that upheld "post and bid" programs established under
collective bargaining agreements, which apply to a limited number of
appointments and promotions for civil service classifications. Calif. St.
Personnel Board v. Calif. St. Employees Assn. L-1000, #C0242437, 114
Cal.App.4th 11, 7 Cal.Rptr.3d 243, 2003 Cal. App. Lexis 1816 (Cal. App. depub.)
review granted, 2004 Cal. Lexis 1664 (2004). {N/R}
H.R 1588-230, which created the Dept. of Defense
National Security Personnel System, changes the way the DoD will hire, pay,
promote, discipline and fire its 320,000 civilian employees. The legislation effect
members of more than 1,300 local bargaining units. {N/R}
New legislation allows the Defense Department to
create its own personnel system for 750,000 civilian employees. Management will
have more flexibility in hiring, firing, and promoting employees. H.R.1588,
National Defense Authorization Act [for FY-2004], 5 U.S. Code §9901-9904
(2003). {N/R}
OPM issues a rule allowing federal agencies to
hire new workers using a category-based rating system in lieu of the
traditional "rule of three" system. U.S. Office of Personnel
Management, "Organization of the Government for Personnel Management,
Overseas Employment, Temporary and Term Employment, Recruitment and Selection
for Temporary and Term Appointments Outside the Register, Examining System, and
Training," 68 (114) Fed. Reg. 35265 (6/13/03). [2003 FP Sep]
U.S. Defense Dept. proposes to eliminate
guaranteed annual pay raises and General Schedule step increases, and to change
the way that government employees are hired, fired and promoted. S.1166.
"National Security Personnel System Act," and H.R.1836. "Civil
Service and National Security Personnel Improvement Act." [2003 FP Sep]
North Dakota woman trooper settles her
lawsuit challenging the "Rule of Five." She was rejected for promotion
in favor of a lower-scoring male trooper. Malafa v. N. Dak., #2:97cv73 (D.N.D.
1998). [1999 FP 58-9]
Federal appeals court holds that a state
legislature can reclassify positions and remove civil service protections from
specified classifications. Employee who was summarily fired after a Nevada law
changed has no remedy. Rea v. Matteucci, 1997 U.S. App. Lexis 19769, 13 IER
Cases (BNA) 145 (9th Cir.). The court referred to an earlier case which held
that a state legislature may modify or abolish any state office. Shamberger v.
Ferrari, 314 P.2d 384 (Nev. 1957). [1997 FP 131]
Promotional candidates who vacate a lower-paying
civil service slot should ask for approved leave before accepting a nontenured
position. If they are outplaced from the new position before achieving tenure,
they may not be able to return to their former slot. O'Connor v. Civil Serv.
Cmsn., 33 Mass.App. 979, 651 N.E.2d 863 (1995). [1996 FP 52]
Louisiana appeals court holds that a municipal
civil service commission had the requisite jurisdiction to determine whether a
labor agreement was violated when the employer improperly promoted a
corrections officer. Bass v. Dept. of Pub. Saf., 655 So.2d 455 (La.App. 1995).
{N/R}
Pennsylvania court prevents giving veteran police
officers from other communities a hiring preference; they must take civil
service entrance exams on a competitively scored basis. Frat. Order of Police
v. City of Pittsburgh, #GD92-19421, 30 (1493) G.E.R.R. (BNA) 1620 (Cm.Pls.5th
Dist. 11/24/92). [1993 FP 19]
Federal appeals court prohibits county from
requiring veteran officers to take an entry-level employment exam after their
employing entity was transferred to another agency. Carston v. Co. of Cook, 962
F.2d 749 (7th Cir. 1992). [1993 FP 35]
Manner and legal effect of a civil service
appointment as a P/O or F/F under Texas law discussed: Jackson v. City of
Houston, 595 S.W.2d 907, 1980 Tex.App. Lexis 3151; Fort Worth, City of v.
Harty, 862 S.W.2d 776, 1993 Tex.App. Lexis 2553. {N/R}
Municipality could not "demote" civil
service chief back to former rank because his contract as chief expired;
hearing, charges required. Tegzes v. Twp. of Bristol, 472 A.2d 1386 (Pa. 1984).
Department cannot create non-civil service rank
of commander absent an emergency situation. City of Rock Springs v. Police
Prot. Assn., 610 P.2d 975 (Wyo. 1980).
Civil service commissioners continue to serve
until their successors are qualified. Cantwell v. City of Southfield, 290
N.W.2d 151 (Mich. App. 1980).
Home rule community can provide that chief will
serve at pleasure of mayor or manager, even though state law affords civil
service protection. Mandarino v. Vil. of Lombard, 414 N.E.2d 508 (Ill.App.
1980).
When a person holding a permanent position in the
classified service is removed or discharged by the appointing authority and
there is an appeal, no vacancy exists to which a permanent promotion can be
made. In the interim, a temporary emergency promotion can fill the need. If an
interim promotion is invalid, in the absence of bad faith, dishonesty or fraud,
the promoted person is entitled to compensation at the higher pay grade. Adams
v. Goldner, 79 N.J. 78, 397 A.2d 1088, 1979 N.J. Lexis 1175.
Home rule community may transfer police and fire
personnel to a general civil service system. West v. Allen, 375 So.2d 758
(La.App. 1979).
Civil service board can delegate examination
functions to chief of department. Letson v. Gadsen Civ. Serv. Bd., 356 So.2d
653 (Ala. App. 1978).
Experience requirement; effect of
"illegal" prior service. Maloney v. Nassau Co. Civ. Serv. Cmsn., 398
N.Y.S.2d 206 (Misc. 1977).
Federal Court in Alabama rescinds arbitrary
promotions; requires merit selection of federal due process basis.
International Assn. of Fire Fighters L-2069 v. City of Sylacauga, 436 F.Supp.
482 (N.D. Ala. 1977).
Change of departments not a "transfer'.
Sanderson v. Dept. of Public Safety, 351 So.2d 813 (La. App. 1977).
City required to adopt civil service system by
law, must do so; demotions not permitted without hearing. Grenchik v. State ex
rel. Pavlo, 373 N.E.2d 189 (Ind.App. 1978).
Implied power to modify punishment. City of
Minneapolis v. Singer, 253 N.W.2d 150 (Minn. 1977).
Duty of city to enact enabling ordinance. Higgins
v. Salewsky, 562 P.2d 655 (Wash. App. 1977).
Court challenge to bonus points given to veterans
on El Paso civil service exams loses. Rios v. Dillaman, 499 F.2d 329 (5 Cir.
1974).
Exempt positions discussed. Yocum v. Washington,
Civil #8578-74, D.C. Super. Ct.
New Jersey court affirms right of cities to
employ CETA firefighters in derogation of civil service laws. White v. City of
Patterson, 348 A.2d 798 (N.J. App. Div. 1975).
See also: Collective
Bargaining; Disciplinary Procedures; Eligibility Lists; Examination
Techniques; Homosexual and Transgender Employee
Rights; Promotional Procedures.