Federal District Judge James Kehoe said the department had no legal authority to pass over qualified officers in order to promote a Haitian-American officer. Kehoe's ruling focused on the city's use of "selective certification," the need for special requirement promotional candidates based on sex, domicile, or "possession of special qualifications." The police chief and personnel director justified the decision on the basis that the promoted officer spoke Creole, a combination of French, Spanish, and Portuguese spoken by Haitian immigrants in south Florida. The judge rejected the city's claim, finding that the promotion of Gary Eugene, candidate number 107, was based solely on his ethnicity.

A similar ruling was made regarding the promotion of a black sergeant to lieutenant. The judge found that the promotion was not based on the individual's "special qualifications" but rather his race. "There is no showing that the black candidates who received selective certification possessed any special skills," Kehoe said. "The only apparent qualification was that these additional candidates were of a particular race." A 1977 court-approved consent decree specifically prohibits discrimination based on race.

Former Police Chief Calvin Ross' intentions were good when he made the promotions back in 1992. He asked for additional black candidates for the post of lieutenant, saying they were necessary for "positive role models and ethnic recognition." He also said he needed black supervisors who could understand and speak non-traditional English. In an April 1992 memo, Ross said additional black leadership on the force would help quell racial tension.

Speaking of the sergeant's list, Kehoe noted that those bypassed "had their promotional aspirations trammeled by the city's desires for political correctness." The judge added, "If the city wished to make foreign language a required supervisory skill, it may do so through the proper procedures established in its own civil service rules."

Miami's population of 375,000, is 62 percent Hispanic, 25 percent black, and 12 percent white.

The city is expected to appeal the ruling that also affects retirees.

However, a new Garrity wrinkle has arisen in Colorado and the National Association of Police Organizations (NAPO) has jumped into the fight. Last month, NAPO, through its National Law Enforcement Officers' Rights Center, filed a friend of the court brief with the Colorado Court of Appeals in support of two Denver officers accused of improper use of force. The unusual factor is that the Denver Public Safety Review Commission (DPSRC), an oversight body that reviews internal police misconduct and makes recommendations to the chief, is the entity seeking to compel the officers' testimony.

Officers Scott Blatnik and Jerome Powell were participants in critical incidents. One event involved an alleged assault while the other concerned the death of a knife-wielding assailant. The officers were cleared of criminal charges but the DPSRC

NAPO's brief argues that the DPSRC has no authority to grant the officers immunity on the use of their testimony commensurate with that required by the Fifth Amendment. Nor does the Commission possess authority to terminate the officers' employment for insubordination. Therefore, without the governmental coercion arising from a reasonable threat of job loss, the Garrity exception to the exercise of the privilege against compulsory self-incrimination is not available to the DPSRC to compel the testimony.

A ruling is not expected until late summer or early autumn.

Both the Denver Police Association and the Colorado Police Protective Association are affiliated with NAPO.

An official with the patrol officers' union, the Policemen's Benevolent Association (PBA), issued a statement indicating cautious support, noting that the PBA is "all for it," if the plan is an effort by the city to recognize "productivity achievements." The PBA represents 26,500 patrol officers and has generally resisted implementation of economic benefits, such as education incentives, that would not be available to all of its members. In the most recent round of contract bargaining, the city has insisted on pay raises being tied to

The NYPD previously utilized special assignment pay but it fell into disuse because of resentment by officers who did not receive the extra compensation. The transit and housing police departments used a similar pay plan prior to their merger into the NYPD a few years ago.

In reaction to the announcement, some officers expressed skepticism over the criteria that would be used and whether the plan would fall victim to the "good ol' boy syndrome" of reward based on personality, not performance.

Police experts have long sought to devise a form of merit pay for police officers. Numerous operational difficulties have prevented widespread adoption of these compensation plans.

Officers contend that the city's operating reserve, $12 million for use in emergencies, should be used to fund higher salaries. City officials, however, are reluctant to tap the account and argue that they must balance the needs of schools, infrastructure, and other city employees with those of police officers and fire fighters.

Supporting the Portsmouth officers have been FOP members from surrounding lodges. Neighborhood crime watch volunteers have also rallied on the Portsmouth officers' behalf.

The minimum salary for Portsmouth patrol officers is $24,153; maximum salary is $35,022. Portsmouth police sergeants start at $29,005 and can

The city manager has proposed establishment of a step system that would correct the fact that rookies and 8-year veterans earn the same wage.

Because mid-managers and above are treated as exempt employees for overtime purposes, some sergeants and patrol officers actually earn more than their superiors, an FOP official said. The official told the Norfolk Virginian-Pilot newspaper that some lieutenants had actually requested demotion to sergeant in order to increase their earning potential. He stated that the FOP had not pushed for a pay hike in prior years because of the city's difficult financial position.

Portsmouth employs about 250 sworn officers.

Supreme Court update

Cases of interest

In Bresnahan v. California Highway Patrol, No. 97-1118, the court refused to consider the claim of a highway patrolman who was transferred without a hearing prior to the action. Lower courts also had rejected his assertion that he did not receive due process during the disciplinary process.

Review was also refused in Northen v. City of Chicago, Illinois, No. 97-1261, wherein a lower court ruled that the statute of limitations barred a sergeant's claim that the city had retaliated against him in violation of the First Amendment for criticism of the police promotion process. The sergeant had claimed that groundless reprimands induced in him a state of clinical depression. The appeals court also ruled that his challenge to a city order placing him on disability leave was not retaliatory because he was, in fact, disabled and incapable of performing his job duties. The lack of a hearing placing him on disability leave was harmless inasmuch as the sergeant desired such leave.

A recently filed appeal is Cutcliffe v. Jenne, No. 97-1310, raising once again the issue of political patronage in a sheriff's department. The U.S. Court of Appeals for the 11th Circuit ruled that political affiliation is an appropriate requirement for a position in a Florida sheriff's department and deputies may be selectively terminated without an individualized determination of political loyalty. The Supreme Court has not yet decided whether to review this ruling.

HELD: Federal fair employment law permits "aggrieved" persons to bring claims for violations of equal employment practices. The trial court correctly determined that the officers in this case did not fit the definition of that term and consequently lacked standing to pursue their claims. As to their First Amendment free speech claims, the trial court properly ruled that, as a matter of law, the city had no policy or custom permitting the kind of conduct charged to the lieutenant and that the complaining officers' speech concerned internal rather then public concerns. Dismissal of case affirmed. [Childress v. City of Richmond, Virginia, 134 F.3d 1205 (4th Cir. 1998)]

HELD: The FLSA was enacted to provide workers with specific minimum protections against excessive work hours and substandard wages. Generally, the FLSA requires that an employee receive overtime payment of at least one and one half times the regular rate for any hours worked in excess of 40 in a week. Although the FLSA only requires overtime compensation for hours actually worked, the statute itself does not provide a definition of "work." The Supreme Court, however, has defined work as, "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." The issue in this case is whether time spent by the corrections officers during their meal periods is compensable "work." The Supreme Court has made it clear that FLSA rights take precedent

HELD: City ordinance states that it is the policy of the city to impose progressive discipline procedures that are fair and appropriate to each situation. However, when an infraction is such as to impair or destroy the future effective performance of an employee, the city may properly take action to remove the employee from the work environment. Hanrahan argues that the chief of police failed to apply the city's progressive discipline policy. The chief testified at the civil service board hearing, however, that her reason for immediate dismissal was the effect of Hanrahan's actions had on the public standing of the department. Thus, the former officer's immediate removal from the work environment did not violate the ordinance. Former officer also argues that the chief failed to consider mitigating factors on his behalf. Likewise, he was

HELD: The merit commission found Huff guilty of seven counts of neglect of duty. In light of the fact that he admitted that he had committed all seven of the incidents of misconduct, the commission's determination was not against the manifest weight of the evidence. Nonetheless, Huff claims that his actions did not amount to misconduct. He claims state law only requires an officer complete the report cases of bona fide abuse and that the domestic call in question was not a bona fide incident. Huff ignored the county domestic violence manual, which requires an incident report for every domestic abuse call. As to the level of punishment he received, the appellate court's role is to review the administrative determination of the merit board, not the trial court's decision. A review of the evidence reveals that when Huff arrived at the scene, there was no evidence of violence or abuse. Likewise, the state trooper filed no report and no arrest was made. Thus, Huff is correct when he asserts that the matter was not a bona fide incident of domestic violence that required reporting under state law. His failure to file a report of the incident for which the state police were assigned does not reasonably require his termination as a peace officer. However, the demotion was related to the needs of service. Huff was a supervisor responsible for implementing policy guidelines and directing personnel. Display of a lack of assertiveness in

HELD: It is undisputed that the officer is permanently incapacitated from the further performance of duty as a result of his mental disorder and he is entitled to some type of disability benefits under Iowa law. The question is whether he is entitled to ordinary disability retirement benefits or

HELD: Michigan labor law closely tracks the National Labor Relations Act (NLRA). Thus, federal court cases interpreting the NLRA are useful precedents in interpreting Michigan labor law. Prior case law holds that the union's duty of fair representation arises out of its authority as the exclusive bargaining representative. While the certification may change relations between and among the employer, union, and employees, it does not destroy the right to redress claims arising under it. Although the collective bargaining agreement had expired in this case, the grievance procedure continued after the expiration date. Although a new representative was certified, the Police Labor Council was in the best position to efficiently and knowledgeably see the grievance to its completion. Shifting responsibility to POAM improperly imposes the Police Labor Council's judgment, contract interpretations, and financial considerations made in this matter upon the POAM. The grievance arose and was actively pursued while the Police Labor Council was the exclusive representative. It has the obligation to process the grievance to its completion. [Quinn v. Police Officers Labor Council, 572 N.W.2d 641 (Mich. 1998)]

HELD: One must generally exhaust any available administrative remedies before one can seek judicial review. This notion is premised on the separation of powers doctrine. The decisions of an agency are often of a discretionary nature and frequently require expertise that the agency can bring to bear in sifting the information presented to it. The agency should be afforded the initial opportunity to exercise that discretion and apply that expertise. To permit an interruption for purposes of judicial intervention in the various stages of the administrative process might well undermine the very efficiency that the legislature intended to create in the first instance. Some states provide that the doctrine of exhaustion of administrative remedies is a jurisdictional requirement. A court is without jurisdiction to grant relief to a party until the party has exhausted administrative channels. Other states conclude that the exhaustion doctrine rests on considerations of convenience and that its application is discretionary. The jurisdictional approach appears to be the better reasoned law. To leave the application of the requirement in the realm of discretion would be to depart from the rationale

HELD: Under North Carolina law, when an injured employee refuses employment secured

HELD: The city asserts that the state police officers civil service law has been in effect in the city since voters approved it in 1948. The civil service law was re-codified in 1987 by the Legislature. Because re-codification indicates legislative intent of the continuation of previously existing law, voter re-approval was not required. As to the section of civil service law regarding the independent hearing examiner, the city argues that the law confers legislative authority on a private entity contrary to the Texas Constitution. It is generally recognized that governmental or legislative functions of a municipality cannot be delegated to private entities. The hearing examiner law creates an alternative review process of the discipline of officers engaged in a profession that demands a state of readiness, strict discipline, a measure of obedience and valor not expected in ordinary callings. The police department has a substantial interest in maintaining discipline, espirit de corps, and uniformity within its ranks. Because a police agency is a paramilitary type of organization, the police department must be given considerably more latitude regarding discipline and personnel regulations than the ordinary government employer. The power to discipline officers is in the public interest and a city's power to discipline its officers is inherent and implied in its power to maintain a police force. The discipline or removal of police officers is not for the purpose of punishment but for the protection of the public. The independent examiner law creates a situation where the examiner's actions are not subject to meaningful review by a state agency and judicial review is limited. The examiner may impose a forfeiture of pay, similar to a fine. The statute does not set forth special qualifications or training standards for the examiner. In addition the law does not require the examiner to be a resident of Texas and amenable to suit nor does the act require the examiner to be sworn

HELD: The town characterizes Auchinleck's position as probationary and claims that a volunteer officer is the same as a probationary officer. Wisconsin law provides that non-probationary officers may not be suspended or terminated without adhering to certain procedural steps. To argue, however, that this police chief who has served in that capacity since 1988 is still serving on a probationary basis is specious. Use of a probationary period is an excellent means of examining candidates and enables the employer to better evaluate the potential officer's skills and character. Considering the ordinary and expected reason for a probationary period, a claim that Auchinleck is on probation is without merit. Likewise, the fact he serves as a volunteer is not controlling. While state law draws a clear distinction