June 1998 
Volume 17, Number 1

Number of patrol officers up 19 percent in four years 

The number of full-time state and local law enforcement officers whose regularly assigned duties included responding to calls for service grew by more than 68,000 officers to 423,000 officers between 1992 and 1996, an increase of more than 19 percent, the Department's Bureau of Justice Statistics reported this month. 

As of June 1996, the total number of full-time state and local officers with arrest powers was 663,535 - an increase of 59,000 officers since 1992. Civilian support staff employment increased during the four-year period by 21,000 to reach 258,443. 

There were 25 sworn and 10 non-sworn state and local law enforcement agency employees per 10,000 U.S. residents in 1996, compared to 24 sworn and 9 non-sworn personnel in 1992. 

In 1996, 18,769 state and local law enforcement agencies employed at least one full-time or part-time officer with general arrest powers. Seventy agencies employed 1,000 or more full-time sworn officers, including 41 local police agencies, 15 state police agencies, 12 sheriffs' departments and two special police agencies (the New York City public school system, with 2,899 sworn officers, and the Port Authority of New York-New Jersey, 1,350 officers). 

The largest law enforcement agency in the country, the New York City Police Department, employed 36,813 full-time officers. On the other hand, 2,245 agencies had just one full-time officer and 1,164 relied solely on part-time officers. 

Sixty-four percent of the state and local law enforcement officers in 1996 were uniformed personnel whose regularly assigned duties included responding to calls for service, compared to 59 percent in 1993. Another 15 percent of the full-time sworn officers were assigned to investigative duties in 1996. 

Other officers performed administrative work or were involved in training or technical support. Eight percent of full-time officers were performing jail-related duties, and 3 percent were doing court work, such as process serving or court security. 

State and local law enforcement agencies in California had 103,967 full-time employees, sworn and non-sworn, in 1996, more than any other state. New York was second with 88,348, followed by Texas (73,112), Florida (60,808) and Illinois (50,255). Vermont had the fewest (1,336), followed by North Dakota (1,537), Alaska (1,884), and Wyoming (2,149). 

Mandatory Social Security coverage under consideration 

Consideration is underway in Congress to expand mandatory membership in the Social Security system to public employees not currently covered. The strategy is one of several approaches to stabilizing the funding of the Social Security trust fund. Last month, the House Committee on Ways and Means, Subcommittee on Social Security, held another in a series of hearings on solving Social  Security's ills. This time, public sector representatives, including one police labor group, weighed in strongly opposed to being part of a cure. 

Robert T. Scully, executive director of the National Association of Police Organizations (NAPO), told the panel that mandating Social Security participation would have a "dramatic and negative impact on the recruitment and retention of 


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well-qualified public safety officers." Scully expressed concern that placing police officers and fire fighters under the Social Security tax would adversely affect their compensation and pension plans. Scully noted that most state and local governments recognize that police officers and fire fighters are different than other public employees. Special pension systems have been devised for these professions. These pension plans provide more comprehensive coverage and far better benefits than Social Security. According to Scully, mandating Social Security participation would cause pressure on government employers to alter these pension plans due to increased employee costs. In the alternative, the employer might make up the increased cost by furloughing employees, thereby reducing the number of public safety personnel. Additionally, since the employee's Social Security tax is 6.2 percent of wages, application of the tax would create an immediate reduction in take-home pay. Alteration of pension benefits and reduced take-home pay would have an negative effect on hiring and retaining competent public safety personnel, especially in the current competitive labor market. 

Other public sector representatives told the 

congressional committee of the problems that would arise should public employees be placed in the federally controlled retirement system. 

Currently, only 24 percent of state and local public safety personnel pay Social Security taxes and are covered by the system. California, Ohio, Texas, Massachusetts, Illinois, Colorado, and Louisiana account for 75 percent of the non-covered public employees. Inclusion of these personnel in the system would reduce the Social Security shortfall by only 10 percent, according to a study by the General Accounting Office. 

Today, many public safety agencies permit retirement as young as age 50. Full Social Security benefits do not vest until 65. Reduced benefits are available at age 62. 

The Social Security Act was passed in 1935. In 1950, Congress altered the law to allow certain public employees to participate in the plan. In 1983, Congress legislated that public employees then participating in the system could not withdraw and mandated participation in Medicare. By 1991, all public sector employees who were not covered by a retirement plan were required to pay Social Security tax and join the plan. 

A new form of sexual harassment? 

Five female jailers in King County, Washington, have filed suit against their employer for permitting a sexually hostile work environment. Certainly not an unusual suit _ except their claim is based on objections to the behavior of the inmates in the jail! So they are suing the county to stop sexual harassment by the prisoners. 

The jail officers complain that inmates are permitted to have pornographic pictures in their cells, shout vulgar comments to the officers, and have been known to masturbate in the officers' presence. The jailers claim that the county has ignored their complaints about the inmates' behavior. Likewise, the officers assert that jail discipline rules are not severe enough for sexually oriented misbehavior. For example, some violations of institution regulations cause loss of accumulated 

good time or recreational opportunities. Referring to a female guard by her genitalia reportedly warrants only a verbal reprimand. 

King County officials denied that jail rules are not being enforced, and noted that legal rules on inmate rights restrict what they can do. For example, inmates are permitted to purchase Playboy through the jail commissary. 

Federal equal employment law holds employers responsible for not only what their employees do but also what their customers do. A county prosecutor, who is representing the jail in the case, told the Seattle Times that jails have less control over their "customers" than a restaurant. "We didn't ask to have them _ we can't exactly boot them out." 

The suit is scheduled to go to trial next year. 



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Colorado investigator sues chief in JonBenet case 

A Boulder, Colorado, detective last month sued the chief of police as a result of being removed from the high profile JonBenet Ramsey murder investigation. Detective Linda Arndt charged that the city and Chief Tom Koby violated her free speech rights by forbidding her from speaking to the media to answer printed and broadcast stories that painted her in a negative light. 

Arndt was the first detective to arrive at the Ramsey home on December 26, 1996. The child's father found the body of JonBenet hours later in the basement. The detective, who is still assigned as a sex crimes investigator, claims in the suit that false stories in the media reported that she disturbed 

evidence, allowed the victim's father to leave the house, and gave a photocopy of a ransom note to the family. All of the stories were incorrect but implied that she had "bungled" the investigation. Arndt was removed from the case in June, 1997. She and other investigators on the case were forbidden by Koby to speak to the media. According to the lawsuit, Koby told Arndt's lawyers that he agreed that the statements about Arndt and other officers were erroneous but efforts to correct the record would backfire and simply make matters worse. 

The murder case remains unsolved. Koby is scheduled to retire this month. 

Special feature

Teacher pay in the U.S. 

A frequent technique in wage negotiations is to compare police officer salaries to those of officers in comparable jurisdictions. Likewise, in communities that maintain base wage pay parity, comparison to area fire service employee compensation may be a factor in bargaining. Less common are efforts to compare police officer wages to non-public safety government employees. Law enforcement selection standards, training requirements, and the unique aspects of the job greatly limit the number of reasonable comparisons elsewhere in government. 

One possible comparison is to K-12 teachers. Teachers constitute the single largest group of public employees. While the education requirements for a teaching position are often higher than for a police officer position, both jobs demand dedicated public servants who are required to exercise their sound professional judgment across a myriad of circumstances. Each group is subject to close public scrutiny and is held to a high level of accountability. 

Recently, the American Federation of Teachers (AFT), AFL-CIO, released a 

comprehensive study of educators' salaries. The study examined teacher pay and benefits across the nation. AFT found the average salary for all teachers to be $38,438. 

Table One displays the average teacher salary by state. In addition, the state ranking is shown. The data is the annual salary excluding the value of fringe benefits. Most teachers are employed on a nine or ten month contract. In many jurisdictions teachers' salaries are paid in part from state funds. Only a few states provide pay supplements to public safety personnel, leaving the bulk of funding the responsibility of local government. 

Connecticut ranks the highest in average salary while South Dakota comes in at the bottom. Because of the wide variance in compensation paid teachers, only the top 17 states pay salaries above the average. In other words, teachers in two-thirds of the states earn below the national average. 

The data is instructive for public safety personnel as it indicates the relative allocation of pay between law enforcement and education. 



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Table One 
AVERAGE TEACHER SALARY IN 1996-97 
BY STATE 
STATE WAGE RANK 
Alabama 32,470 37 
Alaska 49,140
Arizona 33,208 33 
Arkansas 30,987 44 
California 42,992
Colorado 36,271 22 
Connecticut 51,181
Delaware 41,436 12 
District of Columbia 42,424 10 
Florida 33,885 28 
Georgia 35,679 26 
Hawaii 38,105 19 
Idaho 31,818 39 
Illinois 42,339 11 
Indiana 38,722 17 
Iowa 33,272 31 
Kansas 33,150 34 
Kentucky 33,802 29 
Louisiana 28,347 48 
Maine 33,676 30 
Maryland 41,257 13 
Massachusetts 44,101
Michigan 47,769
Minnesota 38,276 18 
Mississippi 27,662 50 
Missouri 33,143 35 
Montana 29,958 46 
Nebraska 31,768 40 
Nevada 40,817 15 
New Hampshire 36,029 25 
New Jersey 49,786
New Mexico 29,715 47 
New York 48,000
North Carolina 31,019 43 
North Dakota 27,709 49 
Ohio 38,944 16 
Oklahoma 30,187 45 
Oregon 41,093 14 
Pennsylvania 47,147
Rhode Island 43,084
South Carolina 32,659 36 
South Dakota 27,072 51 
Tennessee 34,267 27 
Texas 32,426 38 
Utah 31,310 42 
Vermont 36,053 24 
Virginia 36,116 23 
Washington 37,860 21 
West Virginia 33,258 32 
Wisconsin 37,878 20 
Wyoming 31,716 41 
Source: American Federation of Teachers, AFL-CIO 


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Litigation

Cases of interest 

Supreme Court update 

Dismissal grounds 

Over the past month the Supreme Court has declined to consider three pending matters of interest to public safety personnel. In Powell v. State of Florida, No. 97-1667, the high court refused to overturn a ruling that the Eleventh Amendment prohibits a Fair Labor Standards Act suit in federal court against the state when acting as an employer. Such suits must be pursued in the state court system. Alvarez v. Dade County, Florida, No. 97-1653, upholds a lower court determination that SWAT officers who are required to maintain physical fitness standards are not entitled to overtime for the off duty hours spent on fitness training. The lower court found the off duty exercise program did not constitute "work" for the purposes of overtime compensation. In Cutcliffe v. Jenne, No. 97-1310, the court again opted not to review an appeals court decision that deputy sheriffs may be discharged for political reasons by a newly elected sheriff without violating the First Amendment. Constitutional protections for at-will law enforcement officers continues to be cloudy. 

Three cases of potential interest are seeking review. Childress v. City of Richmond, Virginia, No. 97-1723, is an appeal of an unsuccessful "hostile work environment" case. Several white male police officers contend that a supervisor's disparaging comments about female and black officers created a hostile work environment actionable by them under federal fair employment law. Lower courts held for the city, finding that the officers lack standing to pursue the claim. Vingi v. State of Rhode Island, No. 97-1887, seeks review of allegations concerning sex discrimination in admission to the state police training academy. Finally, Taylor v. City of Ponca City, Oklahoma, No. 97-1887, is challenging a determination of the process due a police officer who was discharged from the position. Review decisions are expected before the end of the current term of the Supreme Court. 

Responding to a traffic disturbance, a city police officer shot a resident named Wilson. Within minutes of the shooting, the officer radioed the dispatcher to call emergency medical services. A supervisor and two other officers appeared at the scene shortly thereafter. The officers did not render any emergency aid to Wilson. Although they had received training in cardiopulmonary resuscitation (CPR), they had learned that they should not move or perform CPR on a critically injured person who was still breathing as Wilson was. Emergency medical technicians arrived shortly thereafter. Wilson was transported to a hospital where he was later pronounced dead. Approximately an hour after the shooting, Lytle, a police officer, arrived at the scene. He inquired as to whether aid had been rendered to Wilson and was told by the supervisor "no" because "Wilson was dying anyway." Several months after the shooting, Lytle had a conversation with Berg, an attorney for Wilson's widow. At the time, Berg was demanding a grand jury investigation of the shooting and threatening to sue the city. In his statement to Berg, Lytle related his conversation with the supervisor and stated he was a little shocked because he believed the officers should have done something. He subsequently told Berg that he believed the officers' failure to render aid constituted second degree murder. Subsequently, Lytle testified before a grand jury and provided a transcript of the statement he had given to Berg. The local newspaper ran articles about the shooting and quoted Lytle as saying that the supervisor and the other officers were to blame for Wilson's death. The chief of police investigated Lytle's allegations and determined that they were unsupported. He did, however, terminate Lytle's employment on the grounds of breaching department confidentiality rules. Lytle brought suit claiming that he had been discharged in retaliation for his constitutional right of free speech. Trial court granted summary judgment. Former officer appeals. 


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HELD: It is well established that a government employer cannot condition public employment on a basis that infringes on the employee's constitutionally protected interest in freedom of expression. This right of free speech, however, is not absolute for public employees. Courts use the Pickering balancing test to determine whether or not a public employee's speech is protected under the First Amendment. The Pickering test considers whether the speech in question addresses a matter of public concern. If the answer is in the affirmative, the court must balance the employee's interest in expression and the employer's interest in regulating speech in order to maintain an efficient and effective workplace. The trial court in this case found that Lytle's interest in expression was outweighed by the city's interest in efficient public service, and his speech, therefore, was not constitutionally protected. In applying the Pickering test to this case, it should be noted that Lytle accused government officials of serious wrongdoing. Prior case law holds that when balancing the right of an employee against those of the employer, an employee's First Amendment interest is entitled to greater weight where he is acting as a whistleblower in exposing government corruption. However, the court must also consider whether the employee used less disruptive internal channels rather than going outside the city administration with his speech. The evidence in this case reveals that Lytle did little about bringing his complaint through proper channels. Likewise, it was not reasonable for Lytle to conclude that there was government misconduct. The evidence indicates that the officers' decision not to perform CPR was based on the training that they had received. Lytle had received the same training. The evidence is undisputed that Lytle breached the department's confidentiality rules and specific orders not to discuss the Wilson matter with persons outside the department. Prior case law holds that any breach of confidentiality reflects negatively on an officer's ability and competence to perform his job and each officer's competence affects the overall effectiveness  of the police department. Moreover, personal loyalty and confidence are especially important among police officers, who are charged with ensuring public safety and who often must work together in life and death situations. The department employed only 15 officers and this small size increased the likelihood of disruption and disharmony due to Lytle's comments. On balance, the Pickering test tips in favor of the employer. The only factor on Lytle's side is his whistleblower status and the significance of that factor is diminished by his failure to pursue his allegations within the department and by the unreasonableness of his beliefs about government wrongdoing. Dismissal of officer affirmed. [Lytle v. City of Haysville, Kansas, 138 F.3d 857 (10th Cir. 1998)] 

Overtime 

The California Peace Officers Standards and Training Commission required all law enforcement officers to attend a minimum of 24 hours of approved training every two years. The city police department required officers to attend one additional approved training course each year. While most training occurred at department facilities, the officers occasionally attended training at locations outside the city. The city compensated officers for all time spent in training courses. When the officers were required to report to the department prior to or after attending off-site training, they were compensated for the time spent traveling from the department to and from the training site. The officers were not compensated for time spent commuting directly from their home to off-site training locations unless it cut across the normal workday. In 1994, several officers attended a three-day training course held in a nearby city. One of the officers submitted a compensation request for time spent traveling to and from the city in excess of his regular commute to the department. The request was denied. The officers filed suit under the federal Fair Labor Standards Act (FLSA) seeking overtime compensation for the travel time. Trial court rejected the claim and officers appeal. 


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HELD: In 1994, the FLSA was amended so that employers were not required to compensate employees for traveling to and from the actual place of performance of the principle activity for which the employee is employed. The term "principle activity" includes all activities that are integral and indispensable parts of the principle activities. For the purposes of this case, law enforcement training is such an integral activity. Under FLSA ordinary home-to-work travel time is not compensable regardless of whether or not the employee works at a fixed location. An exception to the rule exists, however, for an unusual one-day assignment in another city to meet a special need. Here, the officers argue that their travel to the off-site training falls within this exception because it is an unusual assignment performed primarily for the city's benefit. The trial court, however, correctly concluded that the officers' mandatory training cannot be characterized as either special or unusual because it is a normal and mandated incident of their employment as described in their collective bargaining agreement. Furthermore, while the officers' training benefits the city, it is equally beneficial to the officers who must maintain state law enforcement certification. Thus, the travel does not fit within the special need exception. Similarly, the trial court was correct in concluding that the officers were not entitled to compensation for travel time when the city sends them to overnight training in another city. The FLSA regulations plainly exempt compensation for an employee's travel to a location where s/he must stay overnight unless it cuts across the normal workday. Judgment affirmed denying FLSA coverage. [Imada v. City of Hercules, California, 138 F.3d 1294 (9th Cir. 1998)]  year, the grand jury indicted Meek on official misconduct charges. A few weeks later, Meek was suspended without pay pending termination. He was subsequently terminated two weeks later. Ultimately, a trial jury found Meek not guilty and he sought reinstatement and back wages. The city refused to reinstate the former officer. Meek filed suit claiming a violation of his constitutional right to procedural due process on the grounds that he was never afforded appropriate hearings prior to his termination. 

HELD: The evidence reflects that Meek was a civil service employee with a property interest in his job. As a consequence, he was entitled to due process of law before that property interest was taken away. The Supreme Court has ruled that due process normally requires a pre-deprivation hearing followed by a post-deprivation hearing. In Meek's case, he received notice that a pre-deprivation hearing would be held, but rather than appearing, he chose to respond to the charges in writing. Meek argues that had he participated in the pre-deprivation hearing to save his employment, he would have effectively waived his Fifth Amendment right not to testify in the criminal trial on the charges then pending against him. Meek asserts his foremost concern at the time was the criminal charges and that attendance at the pre-deprivation hearing would have jeopardized the criminal trial. The due process clause does not require a pre-termination hearing in every case. Instead, the right to such a hearing is generally waived when an employee fails to accept the offer of a hearing. By electing to respond in writing to the charges, Meek waived his right to such a hearing. Similarly, he was not placed in a precarious position of losing his Fifth Amendment right relative to the criminal trial. A pre-deprivation hearing need not be elaborate. Generally, an employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and a chance to tell his side of the story. Meek was provided all three and chose not to accept the procedure. Similarly, he was affordopriate post-deprivation hearing led an apprg. The collective bargaining 

Dismissal procedures 

In late 1985, Meek, a police officer, allegedly solicited oral sex from a prostitute in exchange for not issuing her a traffic citation. In April of 1996, he was arrested at his residence. Four days later he was placed on administrative leave pending an investigation of the allegations. In June of the same 


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agreement between the police officers and the city provides that an employee subject to disciplinary action may request a hearing before the civil service commission or file a grievance subject to binding arbitration. Meek chose to file a grievance. The arbitrator ultimately determined that Meek was discharged for just cause. This procedure is sufficient to afford the former officer procedural due process. There being no violation of the former officer's constitutional rights, the case is dismissed. [Meek v. Springfield, Illinois, Police Department, 990 F. Supp. 598 (C.D.Ill. 1998)]  cases did not apply to his department. Apparently, the sheriff believed that because the county had a kennel available, overtime liability did not exist when the officers voluntarily chose to house the dogs at home. Ultimately, the deputies filed suit under the federal Fair Labor Standards Act (FLSA) to receive compensation for the care of the dogs. Additionally, the deputies sought overtime compensation for the time spent maintaining their firearms and cleaning and maintaining their uniforms and leather gear. Deputies seek summary judgment on the question of the liability of the county for overtime compensation. 

HELD: The Supreme Court has consistently stated that the FLSA should be applied liberally in favor of employees. The FLSA provides that preliminary and postliminary activities to the principle activity are not compensable unless the activities are an integral and indispensable part of the principle activity. In virtually every case that has considered the question of off the clock caring of police dogs, the work has been held to constitute compensable time under the FLSA. The reasoning of these rulings requires the finding in this case that employers should compensate dog handlers for the off the clock time they spend in caring for the animals. The dogs are essential pieces of equipment that assist the officers in the efficient enforcement of the laws. The off the clock caring for the dogs is integral and indispensable to the principle activities of the deputies, and the work is performed for the county's benefit. Under the FLSA regulations, however, dog care activities do not have to be compensated at the same rate of pay as law enforcement activities. If different rates of pay are used, the employer may, pursuant to an agreement or understanding with the employees, pay for overtime hours at a special rate. In this case, however, no such agreement had previously been reached between the county and the deputies. Consequently, the deputies are eligible for overtime compensation based on their normal rate of pay. The stipend they receive under the collective bargaining agreement can serve as a credit against any award 

Overtime 

At some point in their respective employment, six sheriff's deputies became canine handlers. They and their dogs received basic canine training and were told by the instructors that they would have to reinforce the training on a regular basis to make the dogs proficient. The instructors explained that they should house their dogs at home in order to build a bond between them and the dogs and that practice would make them and the dogs better teams. The county provided a kennel for the dogs, but most of the deputies chose to have their dogs live with them at their residences. The county paid for the dogs' food, equipment, and veterinary expenses, while the deputies housed the dogs and performed the work necessary for caring and maintaining the dogs, such as exercising, bathing, and grooming. Many of these hours occurred off the clock. In 1991, the police union placed in the collective bargaining agreement a yearly stipend to compensate the deputies for the additional work they performed as canine handlers. The dollar amounts were not derived from any actual time the deputies spent. In 1993, the deputies raised the question with the sheriff concerning receipt of overtime compensation for the care of the dogs. They requested that they be paid two hours a day overtime for their off the clock work. The sheriff denied the request. He was told of court decisions, however, finding canine handlers eligible for overtime compensation. The sheriff responded that those 


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of overtime compensation, however. As to overtime for the time spent maintaining uniforms and firearms, those activities are compensable if a jury finds that they are performed for the county's benefit and are not trivial. At trial, the deputies will have to demonstrate that the amount of time they spend cleaning and maintaining their uniforms and firearms is done on a regular basis and does not present an administrative difficulty in recording of the time. [Albanese v. Bergen County, New Jersey, 991 F. Supp. 410 (D.N.J. 1997)]  HELD: The California Penal Code makes it an offense for any public employee to receive a gratuity or reward for doing an official act. An exception to the statute provides that a peace officer engaged in part-time employment as a private security guard while off duty is exempt from the coverage of the penal statute. The exception further provides, however, that the officer must be in uniform and subject to the rules and regulations of his employing agency. Finally, the statute provides that all civil liability arising out of the secondary employment of the peace officer shall be borne by the officer's secondary employer. It is an established principle of California law that police officers retain their peace officer status and authority during and beyond regular duty hours. Prior case law holds that working as a private security officer without complying with the state penal law causes the peace officer to lose his public peace officer status. Peace officers who work as private security guards pursuant to the conditions laid out in the statute have the authority and protection given peace officers in their usual public work. Otherwise, they do not. Here, neither officer was in uniform when Melendez was shot. Neither had permission to do the off duty work he was doing, and neither was authorized to work this unapproved assignment. It follows that neither was acting as a peace officer when Melendez was shot. Since the officers were acting without official authority, there can be no respondeat superior basis for city liability. Likewise, a claim of a civil rights violation cannot be pursued against the city. To establish such a violation, a plaintiff must show that the deprivation of the constitutional right was based on a policy or practice of the governmental employer. The city is not liable solely because it employs errant officer. Likewise, since neither individual was acting as a peace officer in connection with the events at the restaurant, it cannot be said that they were acting under the color of law. There is no basis to hold the city liable in this case. Judgment reversed against the city. [Melendez v. City of Los Angeles, 73 Cal. Rptr. 469 (Cal. App. 2 Dist. 1998)] 

Secondary employment 

An individual decided to hold a warehouse party. Persons who bought tickets attended the event. The promoter rented a restaurant and set up a table selling tickets. The restaurant opened for ticket sales about 9:00 p.m. and sales began shortly thereafter. Burris and Oskierko, both Los Angeles Police Department (LAPD) officers, were hired to protect the money being collected. The two officers were off duty at the time and neither was in uniform, nor did they have permission of the city to work as security guards. They were, however, wearing their badges and department approved pistols along with jackets with the word "security" printed on the front and back. Melendez and some friends decided to go to the party. After buying their tickets, they went to the location of the party, but as they arrived, the party was being broken up by the police. Given the circumstances, they turned around and went back to the restaurant in an effort to obtain refunds. The ticket seller refused to refund the money to Melendez and several other irate patrons. Ultimately, a disturbance occurred that resulted in the two LAPD officers drawing their weapons. Burris ultimately shot Melendez in the back rendering him a paraplegic. Oskierko subsequently resigned from the LAPD. Burris was disciplined for failing to have permission to work the security job. The department found the shooting to be within policy. Melendez and his wife subsequently brought suit against a variety of individuals including the city. A jury returned an $8 million verdict. City appeals. 


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Disciplinary procedures 

Polygraph 

Sholes and Thomas were New Orleans police officers. When an alarm sounded at a fast food restaurant, the two officers radioed their intention to respond to the alarm. The officers subsequently testified that they examined the exterior of the building, found the entrances secure, and so informed the dispatcher. They left the scene without reporting the disposition of their assignment to the dispatcher. Unbeknownst to the officers, however, two supervisors were in the area when the alarm came through. The supervisors later reported that they saw neither of the officers check the front of the building. As a consequence, Sholes and Thomas were charged with dereliction of duty and lack of truthfulness. They were suspended for ten days. The civil service commission upheld the disciplinary action. Two officers appeal. 

HELD: Under Louisiana law, the civil service commission has the duty to decide independently from the facts presented whether the appointing authority has good and lawful cause to take the disciplinary action and whether the punishment is commensurate with the dereliction. The two officers argue that the commission's decision was unreasonable because it failed to conclusively hold that the officers were lying. Rather, the commission's decisions stated that it was "not inclined to question the credibility of the supervisors." A close reading of the commission's report, however, does find that it made specific factual findings. These factual statements clearly indicate that the commission made a credibility call in favor of the supervisors and against the two patrol officers. The statements of the commission can reasonably be construed as finding that the two officers were lying. The officers indicated they had secured a building where an alarm had sounded without actually having checked the building out. Unquestionably, such conduct impairs the orderly operation of the police department. Discipline affirmed. [Sholes v. New Orleans Department of Police, 707 So.2d 1055 (La. App. 4 Cir. 1998)] 

While off duty, Mathes, a police officer, was riding in a pick-up truck being driven by his wife. Another vehicle pulled out in front of the Mathes vehicle and cut it off. The driver of the other vehicle, Taylor, made an unfriendly gesture towards Mathes. Taylor motioned to the Mathes vehicle to pull to the side of the road, which Mathes' wife did. Taylor then pulled out onto the highway and drove away. At this point, Mathes took the wheel and gave chase. The two vehicles then cut in and out of traffic. At one point, Taylor's vehicle ran into the side of Mathes' truck. Subsequently, Taylor alleged that Mathes shot his window out. Investigators recovered Mathes' handgun from the truck. There was no clear indication that the gun had been recently fired, however. Neither Taylor nor a witness was able to say that Mathes fired at the vehicle, but investigators did find what appeared to be bullet holes inside Taylor's vehicle. Additionally, a lead slug was found in the vehicle. Mathes was dismissed from his position for conduct unbecoming a police officer. At the termination hearing, the police department introduced the results of a polygraph examination that Mathes had been required to take. The polygraph examiner testified that Mathes had shown deception on all of the relevant questions about the shooting. The department also introduced various forms of scientific evidence about the similarity of the bullet found in Taylor's vehicle and bullets found in Mathes' service weapon. Following his termination, Mathes appealed. Trial court upheld the decision, and he pursues an appeal. 

HELD: Mathes asserts that the use of the results of the polygraph examination against him was unlawful. Nebraska has long held that the results of a polygraph examination are not admissible as evidence in criminal cases. Additionally, state statute bars the mandatory use of the polygraph except by those engaged in public law enforcement. This statute, however, does not specifically make the results of a polygraph examination admissible in any proceeding. Under 



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the so-called Frye test, proponents of scientific evidence must prove general acceptance by the relevant scientific community. This has not been done with polygraph exams. Courts must be particularly cautious in according evidentiary status to a polygraph exam since the result is unique in that its truth seeking functions nearly duplicate the purpose of the trial. There is no logical reason for making admissible in administrative hearings the results of polygraph examinations that are not admissible correspondingly in criminal cases. Thus, the results of such examinations are inadmissible for the purpose of attempting to show deception in a proceeding before an administrative agency of a municipal government in Nebraska. However, substantial competent evidence exclusive of the polygraph testimony exists to conclude that Mathes fired the shot at Taylor's vehicle and that his termination as a police officer was justified. Dismissal of officer affirmed. [Mathes v. City of Omaha, 576 N.W.2d 181 (Neb. 1998)]  with or on the authority of other employees and not solely on behalf of herself or himself. The record shows that Macfarlane, who was serving on the union's dispatch discussion committee, wrote several letters to the mayor and board of trustees espousing the union's position on the issue. In addition, he promoted the union's position in several letters to the local paper. Given this background, it is clear that Macfarlane was expressing the group's concern rather than his own personal concern when he wrote the letter that resulted in his discipline. The fact that an activity is concerted does not necessarily mean it is protected since employees can lose protection if they act in an abusive manner. Here, Macfarlane's statements were not made directly to the chief in the presence of other officers, nor did he send the letter to the media for publication. The distribution was limited to the board in an effort to persuade the body not to take action that the union considered adverse to its interests. Under these circumstances, the state labor board could reasonably conclude that Macfarlane's actions were a protected concerted action. [Village of Scotia v. New York State Public Employment Relations Board, 670 N.Y.S.2d 602 (A.D. 3 Dept. 1998)] 

Disciplinary grounds 

The implementation of the 911 emergency call system in the village generated heated public debate. In the course of the debate, Macfarlane, the vice president of the police union, authored a letter that he distributed to the village board of trustees. In the letter, that bore no indication it was endorsed or authorized by the union, Macfarlane set forth what he considered to be deficiencies in the dispatch plan favored by the board. He also included intemperate language regarding the chief of police. Disciplinary charges, predicated upon the contents of the letter, were filed against Macfarlane and he was demoted from his position as sergeant. The union filed an improper labor practice charge claiming that Macfarlane was demoted in violation of New York labor law because he was engaged in concerted action. The state employee relations board found that the village had committed an improper employment practice. Village appeals. 

HELD: An employee's conduct is considered to be concerted activity when s/he acts 

Unit work 

In 1994, the city of Cleveland initiated a plan where it transferred various clerical duties formerly performed by police officers to civilian employees. Next, the city hired "institutional guards" whose duties consisted primarily of supervising prisoners at the jail. The state certified these institutional guards as jailers. Subsequently, the city selected 22 of the institutional guards, gave them additional training, authorized them to carry firearms, and assigned them to transport prisoners. This activity had previously been performed by certified police officers. The police union filed suit seeking a declaratory judgment that the institutional guards who transported prisoners were "peace officers" and thus required to meet all applicable training requirements. Trial court rejected the suit and police union appeals. 


June 1998
Volume 17, Number 1

HELD: Ohio statute defines who are peace officers. Case law interpreting the statute provides that to be a peace officer an individual must meet three criteria: first, the person must be appointed to one of the specific positions enumerated in the statute; second, the person must be commissioned as a peace officer by a political subdivision of the state; and third, the person's primary duties must be to preserve the peace, to protect life and property, and to enforce laws, ordinances, or regulations. Trial court rejected the argument that the institutional guards were peace officers on the grounds that they would not be performing any enforcement of the law. However, the function of transporting a prisoner in a marked police vehicle by uniformed armed officers can only be regarded as a duty of enforcing the law. While these individuals will not perform other duties, such as traffic enforcement or homicide investigation, this does not dissuade the court from the conclusion that the function of transporting prisoners on the public highways among the general public is primarily a law enforcement duty with its attendant problems and concerns, such as hostage taking, escape, and riots. These are clearly duties involving the preserving of the peace and protecting of life and property and enforcing the law. Therefore, the institutional guards involved in the transporting of prisoners fit the definition of a "peace officer" and are required to be trained and certified in accordance with state statute. Reversed for police union. [Cleveland Police Patrolmen's Association v. City of Cleveland, 693 N.E.2d 864 (Ohio App. 8 Dist. 1997)]  personal days, but that the town could waive the 48-hour notice requirement. A 1995 grievance arbitration award found an enforceable past practice existed permitting officers to retroactively designate a day's work as a "personal day" with the rate of compensation set at time and one half. Efforts to bargain a successor agreement went to binding arbitration. The interest arbitration award provided that the present bargaining agreement would remain in full force and effect. Thereafter, the township issued written directives requiring employees to make all future requests to use personal days in writing at least 48 hours in advance. The union filed a charge of unfair labor practice alleging that the new rules were an attempt to circumvent the grievance award. A hearing examiner found for the union, but the full labor board backed the employer. Union appeals. 

HELD: The Pennsylvania Labor Relations Board's (PLRB) jurisdiction includes the determination of whether an employer's alleged failure to comply with a grievance arbitration award constitutes an unfair labor practice. The PLRB determines whether a grievance arbitration award exists and whether the appeal process was exhausted. The PLRB examines the evidence to determine whether the employer failed to comply with the grievance arbitration award. The PLRB does not review the merits of the award. In this case, the grievance award exists and the appeals were exhausted. The sole issue remaining is whether there was compliance with the award. There is simply no evidence to support the union's contention that the PLRB reviewed the merits of the grievance arbitration award. The PLRB found that consistent with the collective bargaining agreement, the employer issued a directive requiring the 48-hour notice as a pre-condition to using personal days. The union failed to present evidence establishing the employer's non-compliance with the award. Rejection of unfair labor practice charge affirmed. [Wage and Policy Committee of the Wilkins Township Police Department v. Pennsylvania Labor Relations Board, 707 A.2d 1202 (Pa. Cmwlth. 1998)] 

Compensation 

The police union and the township were parties to a collective bargaining agreement. The contract stated that officers required to work on a holiday had a choice of receiving either time and one half overtime or straight pay and an alternate day off with pay. Additionally, the contract provided that union employees would have five paid personal leave days available. Officers were required to give 48 hours notice as a pre-condition to using the