February 1998
Volume 12, Number 2

Supreme Court: employee lying can be punished
The principle of due process does not prohibit a governmental employer from sanctioning an employee for making false statements regarding alleged employment-related misconduct, the U.S. Supreme Court declared last month. The justices ruled that a lying government worker could be disciplined both for the original misconduct and the false statement without violating the employee's due process rights.

The unanimous decision came after the high court reviewed cases involving misconduct by six federal employees who were sanctioned both for their misconduct and for willful falsehoods during internal investigations. The lead case concerned Lester Erickson, a police officer for the U.S. Bureau of Printing and Engraving, who denied any knowledge of a series of harassing telephone calls made at the agency. Subsequent investigation determined that Erickson had encouraged another employee to make the "mad laughter" calls. The bureau sought to fire him for his part in the incident and for lying about it, but the federal Merit System Protection Board (MSPB) disallowed the double punishment and reduced the discipline to a 15-day suspension. A federal appeals court upheld the 

 MSPB, ruling that due process grants an accused person a meaningful opportunity to be heard and that employees might otherwise be reluctant to deny charges for fear their denials would be construed as denials of facts, subjecting them to additional charges.

Not so, said the Supreme Court. The opportunity to be heard does not include the opportunity to lie, making the analogy that a criminal defendant's right to testify does not include a right to commit perjury. The fact the employee was not under oath is irrelevant.

While the decision, La Chance v. Erickson, No. 96-1395, was rendered in a case involving a federal employee, nothing in the unanimous opinion of the court would appear to limit its application solely to federal employees.

The Supreme Court also said, "If answering an agency's investigatory question could expose an employee to criminal prosecution, he may exercise his Fifth Amendment right to remain silent." There is nothing inherently irrational about the investigating agency drawing an adverse inference from the assertion of the right to silence, the justices added. 

Cost of living calculations undergoing change
The most commonly used measure of the cost of living, the Consumer Price Index (CPI), is undergoing a revision. The Bureau of Labor Statistics (BLS), the federal agency responsible for calculating this traditional measure of economic inflation, is currently restructuring its "market basket" on which the CPI is calculated. Under the new plan, effective with CPI data released this month, several of the major pricing groups will be redefined. Previously, the groups upon which price comparisons are made were: Food and Beverages, Housing, Apparel and Upkeep, Transportation, Medical Care, Entertainment, and Other Goods and Services. With the new scheme, Food and Beverages, Transportation, and Medical Care will remain the same. Apparel will drop upkeep products and Entertainment will be included in a new category entitled Recreation. Another new category will be Education and Communications, which will incorporate items like personal computer costs.
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BLS believes its new calculations will more accurately reflect contemporary American purchasing patterns through expansion of data collection on such items as food away from home purchases and motor vehicle expenses.

Frequency of publication of detailed regional indexes will also be altered, being published at different times of the year than in the past.

BLS also announced abandonment of its plan to change the CPI base year from 1982-84=100 to 1993-95=100. The agency concluded that such a

 shift would largely be a mathematical exercise that would add little to CPI utility and actually reduce the precision of the historical data. Because of the changes, the BLS is delaying release of January's CPI numbers until later this month.

Individuals using CPI data in wage negotiations should become familiar with the changes. The technical information on the alterations can be accessed through the link on the Fire Service Labor Monthly home page at www.justex.com.

No disability protection for cocaine using fire fighter
A former fire fighter who was addicted to cocaine did not suffer unlawful discrimination when he was terminated from his position after completion of an in-patient treatment program. A panel of judges on the U.S. Court of Appeals for the Second Circuit last month upheld the discharge of Vito D'Amico, a fire fighter with the Fire Department of New York (FDNY). 

D'Amico started using cocaine about five years after joining the FDNY. In 1988, responding to an anonymous tip, the department required the fire fighter to submit to a urine test. The test proved positive for cocaine and he was suspended. The department also referred D'Amico for counseling and an extensive outpatient treatment regimen. The treatment center ultimately discharged the fire fighter for failure to comply with the program. He then entered an in-patient program, which he completed successfully. Nonetheless, the FDNY fired him on the grounds that he presented a significant risk to the public and to fellow fire fighters.

 D'Amico filed suit alleging his termination violated the federal Rehabilitation Act, a handicap anti-discrimination law that applies to entities that receive federal funds. The coverage of the Rehabilitation Act is similar in nature to the Americans with Disabilities Act. Failing to secure a judgment from the trial court, the former fire fighter appealed.

The three judge appellate panel ruled that D'Amico was not an "otherwise qualified individual with a disability" as the law requires for protection against discrimination. Federal handicap anti-discrimination statutes treat former, but not current, drug abusers as disabled within the meaning of the law. According to the court, discharge of D'Amico was justified because evidence suggested he had not completely abandoned drug use at the time of his dismissal. Likewise, the dangerous and difficult nature of being a fire fighter and the risks inherent in a relapse by D'Amico justified the decision to terminate him from the fire service. 

Protective services lead unionized workers
Protective services workers, such as fire fighters and police officers, have the highest rate of unionization among all workers, both public and private sector, according to data released last month by the Bureau of Labor Statistics (BLS). According to BLS, 39.5 percent of all protective services workers were members of unions in 1997. Over 42 percent of protective services workers are represented in the work place by unions. Only 14.1 percent of all workers in America are unionized, a decline of nearly one-half of a percent from 1996. In recent years, union membership has continued a
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slow decline both in terms of percentage of work force and total membership.

Public sector unions lost about 107,000 members in 1997. A breakdown on the number of unionized protective services workers gained or lost was not provided in the data that BLS released.

 BLS did report that overall, unionized workers earn a median wage about 33 percent higher than comparable non-union workers. Once again, BLS does not report differences in wages of union and non-union fire fighters and police officers, although a similar correlation would be expected.
Litigation

Supreme Court update

Cases of interest
The Supreme Court has passed up the opportunity to review a case that raises a major issue about public safety personnel practices. The court declined review of City of Omaha, Nebraska v. Doane, No. 97-738, wherein a lower court ruled that a police officer who lost one eye due to glaucoma is protected by the Americans with Disabilities Act (ADA). City selection criteria did not clearly specify binocular vision. The loss of one eye was a disability despite the fact the other was corrected to 20/20. The review refusal leaves in place the appeals court ruling that the city failed to establish that having two eyes was an essential requirement for a police officer. Many fire departments also require binocular vision. Likewise, National Fire Protection Association (NFPA) minimum standards also call for binocular vision. The decision reinforces the legal burden on public safety agencies to prove that various selection standards are essential requirements for employment. 

One new case of interest has recently sought Supreme Court review. A paraplegic fire fighter is involved in City of Mount Vernon, New York v. Stone, No. 97-979. The legal question presented revolves around whether the ADA precludes a fire department from requiring all fire fighters, including individuals who can function in other divisions such as fire dispatch, to be able to perform all essential functions of the fire fighter position. Ultimate resolution of the case could affect public safety selection and light duty policies. The Supreme Court has not yet made a review decision in the matter.

Disciplinary grounds
In 1983, Chappel was hired as a part-time emergency medical technician (EMT). At that time the fire district, under contract with the ambulance district, provided basic life support and ambulance services. Several years later Chappel assumed fire fighter duties and was employed as a full-time EMT/fire fighter. Like other EMT/fire fighters he worked shifts at both the central fire station and a smaller substation. The central station provided both fire fighting and EMT ambulance services while the substation provided only fire fighting services. In 1990, acting on his own initiative, Chappel began a two-year paramedic training course. He subsequently was certified as a paramedic. Over the course of the next few years Chappel held several part-time positions as an on-call paramedic with other fire and ambulance districts. Chappel became very interested in implementing a paramedic program with the district. He recognized that an upgrade in paramedic service would help save lives. He also had the personal motive of preferring not to have to work outside of his fire district in order to maintain his paramedic license. In early 1992, Chappel began to believe that there were serious problems with the finances and management of the fire district that would jeopardize the implementation of the paramedic program. He began to raise some of these concerns with several of the fire district board members. In particular he complained about the district's finances. He
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complained that the fire chief was also serving as chairman of the fire district board as well as operating the ambulance service for the ambulance district. Chappel began to attend the fire and ambulance board meetings and at various times complained about the failure of the district to take steps to implement the paramedic program. He also complained about lack of standard operating procedures and inadequate training for fire district employees. He criticized the fire chief for serving both as chief and as chairman of the fire board. In addition, he complained about apparent nepotism on the part of the fire chief. Several of the fire chief's close relatives served in various positions with the district. In mid-1992, Chappel discovered that he had been transferred to the substation thereby precluding his participation in regular ambulance runs as they originated only from the main fire station. A few months later he attended another fire board meeting and renewed some of his complaints regarding alleged mismanagement. Many of his complaints were reported in the local newspapers. After much turmoil, the ambulance district eventually committed itself to implementation of the paramedic program. The program was managed by a newly hired medical director. The paramedics were required to work under the director's license. Chappel was hired as a part-time, on-call paramedic. A few months later, however, the medical director changed his mind and said he did not feel he could permit Chappel to work under his medical license. The medical director claimed that he had experienced several confrontations with Chappel culminating in a dispute over the decision not to carry controlled substances in the district's ambulances. Investigation by the state auditor ultimately revealed there was financial mismanagement in the fire district. This plight was covered extensively by the local newspapers. Ultimately, Chappel filed suit against the fire chief, the medical director, and various members of the board in both their individual and official capacities asserting that his First Amendment free speech rights had been violated. The defendants moved for summary judgment claiming that Chappel's speech was not protected under the First Amendment and in the alternative, they were entitled to qualified immunity from liability. Trial court denied the motion and defendants appeal.

HELD: The First Amendment protects a public employee from adverse employment action taken in retaliation for his speech, if his speech may be fairly characterized as constituting speech on a matter of public concern and his interest in that speech is not outweighed by the interest of the state, as an employer, in promoting the efficiency of the public service. Whether speech addresses a matter of public concern is determined by the content, form, and context of a given statement. The defendants in this case argue that none of Chappel's speech may be considered speech on a matter of public concern because all of his speech was predominantly motivated by his self-interest in obtaining a position as a paramedic. A review of pertinent case law reveals, however, that speech on matters of public concern are protected by the First Amendment not only because of the speaker's interest in speaking but also because of the public's interest in receiving information. The motive of the speaker may be relevant in determining whether a comment relates to a matter of public concern but does not control that determination. Clearly, Chappel's comments regarding mismanagement and alleged corruption in the districts went to matters of public concern. The fact that he lacked direct proof of some of his allegations does not change that determination. Likewise, the fact that Chappel was commenting on matters that had already been brought to the public's attention does not lessen the First Amendment protection. A public employee's speech need not be fresh and enlightening to be considered speech on a matter of public concern. Clearly, the public has an interest in the value of paramedic services. Likewise, Chappel's comments regarding the need for standard operating procedures fall within the coverage of First Amendment protection. Similarly, his criticism of the district's financial problems are matters of public concern as well as
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his allegations of misappropriation of public funds by the fire chief and his various family members. Conversely, the district has made no direct showing that its interest in efficient delivery of a public service outweighs Chappel's comments. The defendants are also not entitled to qualified immunity from suit. Public officials acting within the scope of their discretionary authority are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. In this case, however, Chappel's speech addressed matters of public concern and this right was clearly established by law and common sense. All public officials have been charged with knowing that public employees may not be disciplined for engaging in speech on matters of public concern, and no reasonable public official understanding this charge could conclude that Chappel's speech did not address such matters. Denial of summary judgment affirmed. Case to continue to trial. [Chappel v. Montgomery County Fire Protection District No. 1, 131 F.3d 564 (6th Cir. 1997)] conducted and Baerwald's lawyer asked the physician for an opinion regarding Baerwald's return to work. The physician refused to give the attorney the report unless the attorney paid a $250 fee. The attorney refused, believing that Baerwald was entitled to the report without paying a fee. As a result, the fire fighter remained on sick leave. The departmental physician subsequently reexamined Baerwald, but once again would not release him to return to work given the strenuous nature of fire fighter duties. The fire fighter's entitlement to sick leave ran out and he took an unpaid leave of absence for nearly a year. Ultimately, the department physician certified Baerwald fit to return to duty. Until his reinstatement he had spent 250 days on unpaid sick leave. He brought suit for the salary he would have received had he been on duty during that time as he argued he should have been. Trial court granted summary judgment for the city and fire fighter appeals.

HELD: The fire fighter's argument is that because by statute and by contract he could not be discharged from his fire fighter job without cause, his job was "property" within the meaning of the Fourteenth Amendment to the Constitution. He, therefore, claims that the city could not deprive him of this property without due process of law. Baerwald is correct in these assertions, but he did not, of course, lose his job, though he did lose almost a year's pay by reason of having run out of paid sick leave. Every dispute over sick leave or every interruption in pay or fringe benefits does not rise to a constitutional controversy just because the employee is a tenured public employee. Deprivations of property are not actionable under the Constitution unless they are atypical and significant in relation to the inevitable deprivations that people suffer as a result of contractual disputes and other ordinary frictions of life. Here, the fire department had a rule stating it would not reinstate an injured fire fighter unless he had a release to return to work from the treating physician. The rule is entirely reasonable, as the department has a legitimate and, indeed, compelling concern about

Sick leave
Baerwald, a fire fighter, injured his back and shoulder while on the job and was placed on injury leave. During that period he received 80 percent of his salary tax free, plus free medical care. The following year the city employee benefits division pronounced Baerwald fit to return to duty, but the fire department told him he could not return to work without a release from injured status from his treating physician. The treating physician refused to release Baerwald, so the department placed him on sick leave. This entitled him to receive his full salary, but sick leave was taxable and medical expenses were not covered. Baerwald wanted to be allowed to return to work, or failing that, return to injury leave status. The fire department agreed with Baerwald's lawyer that he would be examined by the department's physician at the expense of the employee benefits division. This examination was
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the health of the fire fighter in relation to the public and other members of the fire fighting team. The rule requiring a doctor's release from injury or sick leave raises no questions under the due process clause. It does not infringe upon that right. Baerwald could have hired another physician who would have given him his release and the fire department would then have reinstated him. It is totally unclear to the court why the fire fighter failed to do this, other than the fact that the lawyer thought that Baerwald was entitled to the original report without having to pay $250 for it. The case comes down to the fire fighter's failure to obtain a release from his treating physician before his paid sick leave benefits ran out. Either he or his attorney unaccountably overlooked other options, or he was really still disabled and could not return to work until he was finally certified by the department physician. In either event, no violation of his constitutional rights occurred. Affirmed for city. [Baerwald v. City of Milwaukee, Wisconsin, 131 F.3d 681 (7th Cir. 1997)] because the city failed to follow its prescribed procedures for discipline. Defendants move for summary judgment.

HELD: The fire fighter's claim is not supportable under law. First, his "speech" is not the kind that enjoys First Amendment protection. While it is undoubtedly true that the general public has an interest in having quality fire protection, it is also true that the general public has an interest in good government in all its aspects. An internal controversy over fire fighting policies and procedures cannot be protected speech any more than a surly, insubordinate remark by a police chief to a mayor can receive First Amendment protection. Secondly, the defendants who are sued in their individual capacities enjoy qualified immunity in that they did nothing objectively unreasonable and nothing that a reasonable person in their respective official positions would have had any reason to think constituted an unconstitutional act. Third, Vincent did receive procedural due process even if the process was not in perfect accord with the city's rules. The Fourteenth Amendment is the measure of due process, not the procedural rules of a particular governmental entity. He appealed to the personnel board which overturned the disciplinary action. The city reinstated him to his position with back pay. Prior case law by the Court of Appeals for the 11th Circuit leads to the conclusion that cities are completely insulated from liability for a constitutional violation if there is a review board with the power to take another look at the decision. Whether the review board agrees or disagrees with the discipline meted out makes no difference. A review board ultimately has the power to correct any errant decision and, as such, an aggrieved employee has a virtual impossible task of establishing a denial of procedural due process. In contrast, liability may exist for unlawful hiring procedures as the review board has no power to consider refusal to hire complaints. Summary judgment granted for city and city officials. [Vincent v. City of Talledega, Alabama, 980 F.Supp. 410 (N.D. Ala. 1997)]

Disciplinary grounds
The city had established written procedures as a precondition to the administering of discipline to fire fighters. Vincent, a fire fighter, got into a shouting match with his captain over what was the correct response to an emergency situation. Without convening any formal board of inquiry and without precisely following the written disciplinary procedures, the fire chief suspended Vincent without pay. After being suspended, Vincent appealed to the personnel board which, after a formal hearing, ordered his suspension vacated and his pay restored. Although the city took its time in refunding Vincent's back pay, it did not refuse to honor the personnel board's decision. Vincent then filed suit against the city, the city council, the fire chief, and the captain in their individual and official capacities alleging that his constitutionally protected rights had been violated. Specifically, he claimed that his First Amendment free speech rights had been violated and that he had been denied procedural due process