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FOP lodge challenges Indianapolis fitness rules
Lodge 86 of the Fraternal Order of Police (FOP) and a police sergeant this month filed suit against the Indianapolis Police Department (IPD) claiming that requiring veteran officers to meet the department's new fitness standards amounts to an unlawful change in agreed upon working conditions. The FOP's attorney, John Kautzman, stated, "We believe the law is fairly well-settled, that you (an employer) cannot unilaterally add a condition of employment."

According to the suit the sergeant, Gerald Hilligoss, 57, was medically excused from taking the fitness test when it was first implemented last Fall. At the time he was on limited duty due to back surgery. When he sought to return to full duty in July of this year, he could not pass the test.

The fitness test course covers 110 yards of running and walking, jumping a fence, walking a balance beam, crawling under a table, running up a flight of stairs, squeezing the trigger of a service weapon 16 times with each hand, and carrying a

 60-pound box 60 feet. The course must be completed in 2 minutes and 7 seconds. Last year no one failed, but several officers suffered injuries while taking the test.

The department argues that the public has a right to expect police officers to maintain a reasonable level of physical fitness. FOP officials claim that older officers, such as Hilligoss, a 23-year veteran detective, should not be required to meet the standards since no such requirement existed when they joined the force.

An IPD spokesman, Paul Ciesielski, noted that the police department has fitness training equipment, such as treadmills, available to officers 24 hours per day. The department also offers aerobic classes and fitness advice. "The goal is to encourage people to maintain a level of physical fitness throughout their careers," he said. 

The lawsuit seeks a permanent injunction against the IPD from enforcing the performance standards.

Gun restriction does not violate Wisconsin safety laws
Federal occupational safety and health laws (OSHA) do not protect state and local governmental employees unless a state has passed legislation authorizing application. About one-half of the states have opted to extend these laws. Wisconsin is among these so-called "OSHA" states. An appellate court in Wisconsin last month ruled, however, that a public employer does not violate OSHA regulations by restricting a police officer's authority to carry a pistol.

The odd case, West v. Wisconsin Department of Commerce, was initiated when a campus police officer at the University of Wisconsin

 at Oshkosh filed a complaint over a university prohibition on carrying a pistol except when transporting money. The officer, Robin West, argued that OSHA requires an employer to protect workers from "recognized hazards" of the job. A police officer performing a full range of patrol duties has the potential for violent encounters that can produce serious bodily injury or death. Just as an employer of a welder must provide the worker a protective helmet, the university must allow her to carry a pistol to make the workplace less harmful, she argued. A Department of Commerce (DOC) investigation concluded that there was merit to
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West's argument but the agency denied a hearing, finding that OSHA applied only to "physical conditions" in the workplace. The campus police officer then filed suit. Trial court ordered a hearing be held and the DOC appealed.

The state appeals court reversed the hearing order. "OSHA was meant to address tangible, measurable hazards in the workplace," Presiding Judge Richard S. Brown wrote for the three-judge panel. "The abstract threat West faces in her job . . . is simply not the type of workplace issue Congress

 had in mind when it passed OSHA." "Here, West's complaint is in no way connected to a tangible hazard."

In crafting the opinion, Judge Brown relied heavily on a 1984 federal appeals court case that found that OSHA does not apply to an employer policy as contrasted to a physical condition in the workplace. Neither subsequent cases nor congressional legislation have overturned that court's ruling, the judge noted. Thus, the DOC need not conduct a hearing on the officer's claim.

KC officers and fire fighters picket for bargaining
About 100 police officers and fire fighters picketed the annual meeting of the Missouri Municipal League (MML) in support of collective bargaining and objecting to the use of tax dollars to oppose public employee groups. The protest September 13 in Kansas City was organized by the Missouri Fraternal Order of Police and Local 42 of the International Association of Fire Fighters, AFL-CIO. Currently, a Missouri statute bars bargaining for public safety personnel. 

The protestors used the opportunity to voice their objections to the MML, an organization of Missouri cities, spending tax dollars to lobby the

 legislature against the expansion of public employee rights. Use of city tax money for lobbying against employee groups has been an ongoing source of friction in many other jurisdictions. 

Gary Markenson, executive director of the league, said the labor organizations want third-party arbitration of wages and benefits, a concept the MML opposes. "Cities are great supporters of public employees," Markenson said. "They give them everything they can."

An FOP official called the picket line "just the very first action" unless MML agrees to stop lobbying with tax dollars.

Massachusetts overtime pay higher than ever
A new labor contract, staff shortages, and road construction are being blamed for driving Massachusetts State Police (MSP) salaries to record levels. In 1998, more than 200 troopers earned wages in excess of $100,000. Approximately $20 million in overtime was spent by the agency.

The highest paid state police officer was Sergeant John Shea, who garnered $154,784 in salary _ more than the governor of the state. Shea, who is assigned to the Massachusetts Turnpike, earned almost $40,000 in overtime, nearly $30,000 in education incentive pay, and another $20,000 in "details," department-assigned secondary employment opportunities.

 The most recent labor contract, passed in January 1997, limits the number of work hours to a maximum of 16.5 during a 24-hour period and no more than 42 hours in a 72-hour period.

State Police officials noted that staffing shortages created the overtime problem. Last May, the agency disbanded five special teams assigned to high crime areas in order to use the personnel to cover general patrol functions. Additionally, state law mandates that police officers be in attendance at roadway construction sites.

The state police employs approximately 2,275 sworn troopers, about 140 fewer than 4 years ago.
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Litigation some restraints on job-related speech that would be plainly unconstitutional if applied to the public at large. In order to determine whether a public employee, such as Edwards, has a cause of action for violation of his First Amendment rights, the court must balance the interest of the employee as a citizen in commenting upon matters of public concern against the interest of the employer in promoting the efficiency of the public service. Here, Edwards' speech clearly touches upon a matter of public concern. The public is likely to be truly concerned and interested in the proper use and manner of carrying a concealed firearm. There are no facts indicating that Edwards offered any comment on the department's view about carrying concealed firearms. Similarly, his speech regarding concealed firearms was to be made off duty at a location unrelated to the city. There is no indication that Edwards' teaching of the concealed handgun safety course would impair the discipline by superiors or harmony among co-workers, or would have a detrimental effect on his working relationship with the department. Thus, the trial court erred when it found Edwards did not state a First Amendment freedom of speech claim. The same is true as to Edwards' claim of freedom of association. Like freedom of speech, a public employee's corresponding right to freedom of association is not absolute. Limitations on a public employee's right to associate are closely analogous to the limitations on the right to free speech. There is no governmental interest sufficient in this case that outweighs Edwards' interest in associating with others with a purpose of personal expression on a matter of public concern - the concealed firearms law. The police chief and the city manager argue, however, that they enjoy qualified immunity from liability even if Edwards' rights were violated. Qualified immunity protects governmental officials from damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The right allegedly violated by the chief and city manager is the right of a police officer to

Cases of interest

Secondary employment
Edwards was a veteran police officer who was a certified firearm instructor for the department. He also served as a supervisor with a special unit. In 1995, the North Carolina legislature passed legislation permitting citizens to carry a concealed handgun upon completion of an approved firearm safety course. Subsequently, Edwards attended a firearm instructors' conference that qualified him to teach the concealed handgun safety course. He then took steps to operate a firearm training course in his off-duty time as a way to supplement his income. Two days prior to his first scheduled class he submitted a standard application to the chief of police requesting permission to engage in off-duty employment. The chief denied the request observing that carrying a concealed handgun was "a very sensitive and controversial issue." Shortly thereafter, Edwards was transferred from his specialized position back to that of a patrol sergeant. He filed various grievances over the matter, none of which resulted in his being reinstated as a special unit supervisor or in gaining permission to engage in secondary employment. Ultimately, Edwards filed a federal civil rights suit claiming that the action of various city officials had violated his rights of free speech and free association, as well as his right to procedural due process. Trial court essentially dismissed the claims and police sergeant appeals.

HELD: While a public employee does not possess a constitutional right to his job, a public employer cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression. It follows that a public employer is prohibited from discharging or taking adverse action against one of its employees on a basis that infringes the employee's constitutionally protected interest in freedom of speech. A public employer may, however, impose
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express his personal views on a matter of public concern in an off-duty employment setting without incurring discipline from his employer. Prior case law holds that a police department's perceived threat of disruption is insufficient to justify conditioning a police officer's continued employment upon the cessation of his off-duty protected expression. Thus, it was clearly established that a police chief's personal distaste of the content of a police officer's off-duty instruction regarding concealed handguns is insufficient to justify conditioning the officer's continued employment upon the cessation of that protected off-duty expression. A reasonable person should have known his conduct violated that right. The same is true as to freedom of association. The right of a police officer to associate with other persons while off-duty in order to express his personal views on a matter of public concern without incurring discipline was likewise clearly established at the time of this incident and the chief and city manger should have known that their conduct would violate that right. Reversed and remanded for further proceedings. [Edwards v. City of Goldsboro, North Carolina, 178 F.3d 231 (4th Cir. 1999)] qualified female applicant at that time, but also was one of the most qualified of all applicants for the position. The ranger assigned to investigate her background similarly found her to be highly qualified. Shepard appeared before the oral interview board. The senior ranger captain, Cook, chaired the six-member interview committee. The day before Shepard's interview, another woman, Steadman, had appeared before the board. Following Steadman's interview, and in direct contravention of ranger policy, Cook insisted on reviewing the scores that Steadman had received from committee members. He allegedly made numerous remarks, both disparaging and laudatory, about the various candidates and eventually told two of the board members to change their scores because he wanted Steadman and another female applicant, Garcia, to be selected as rangers. He also allegedly said he only wanted to promote two females to ranger. When one of the board members protested, suggesting that Shepard would be the best candidate for promotion, Cook responded that she was too independent and too opinionated. As a result of Cook's pressure, the two individuals changed their scores so that Steadman would be selected instead of Shepard. At Shepard's interview the next day, some members of the committee treated her with veiled contempt. Nonetheless, she was surprised to learn later that she had been unsuccessful in trying to transfer to the ranger division. It was later discovered that one member of the board had given Shepard the highest score while another member the lowest score and Cook the second lowest score. Shepard ultimately brought suit against the Department of Public Safety and Cook, alleging a violation of her First Amendment rights. Cook moved to dismiss the claim, but the trial court denied his motion. Cook appeals.

HELD: To establish a federal claim of retaliation for the exercise of free speech activities, a plaintiff must prove that: (1) the defendant was acting under color of state law; (2) the plaintiff's speech activities were protected under the First Amendment; and (3) the plaintiff's exercise of her

Sex discrimination
From 1835 to 1993, the Texas Rangers had never selected a woman for membership. In that year, following increased pressure from both inside and outside Texas government, the Public Safety Commission decided to hire female rangers for the first time, a move that generated no small amount of controversy among the rangers. Shepard, a female state trooper for ten years, had made known her desire to become a ranger someday. In 1992, she took the written exam for ranger, and while her score was high enough to allow her to proceed to the oral board, she elected not to pursue the matter after several rangers told her it was not yet time for a woman to join the rangers. Instead, she accepted a promotion to a criminal investigator position. In 1993, she once again took the ranger exam and this time her score was among the highest. Several rangers told her that not only was she the most
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protected right was a substantial or motivating factor in the defendant's action. Another aspect of the test is that the plaintiff actually spoke or otherwise engaged in speech activities recognized by the First Amendment. Cook argues that because Shepard did not "speak out" on issues of public concern, she has no First Amendment claim. He argues that even if he thought Shepard was a "women's libber," he maintained his belief not because of anything Shepard ever said or because she belonged to any feminist groups, but because of her comportment and other non-speech reasons. Shepard has never denied that she believes in the equality of women and believes that a woman can and should serve in the Texas Rangers. The court record, however, does not show that Shepard ever engaged in any free speech activity regarding this topic. "Speech" as used in the First Amendment extends to many activities that are by their very nature non-verbal such as an artist's canvass or a protester's silent picket of an offending entity. Indeed, the Supreme Court has never required that an individual "speak out" in order to find shelter under the First Amendment. However, the First Amendment does require some form of action that can be fairly defined as "speech activities." The court record indicates that Shepard never said anything about her beliefs of equality of women and the appropriateness of their service in the rangers. She never produced any evidence showing an outward sign of her membership in a feminist organization or even tacit support of a feminist agenda. The fact that Cook thought she was a member of a political organization that he may have disdained is not sufficient grounds to raise a First Amendment claim. Cook's bad motives alone are insufficient to establish a First Amendment claim. The evidence is overwhelming that Cook acted unreasonably in rigging the selection process. Shepard has simply presented inadequate proof of her claim that she engaged in speech or other activities protected by the First Amendment. Reversed for ranger captain. [Steadman v. Texas Rangers Division, Texas Department of Public Safety, 179 F.3d 360 (5th Cir. 1999)]

Dismissal grounds
In 1995, Teague and Burkett became suspicious that a fellow officer had committed aggravated perjury. Teague, who was the designated internal affairs officer in the police department, placed the suspected officer on leave and began an internal investigation. Because of a possibility of criminal wrongdoing in the matter, Burkett, who was an investigation supervisor, conducted a parallel criminal investigation into the officer's conduct. When the chief of police learned of the investigations, he requested the two officers keep him apprised of their progress. Subsequently, the chief put a stop to the department investigations but hired a private investigative firm to look into the alleged wrongdoing. The private investigator cleared the suspected officer of any wrongdoing and he was returned to work. Upset with the vindication and in light of what they felt was uncontroverted evidence that the officer had violated several sections of state law, Teague, Burkett, and several other officers requested a meeting with the chief of police. The chief refused, explaining that the district attorney had investigated the matter and cleared the suspected officer of any wrongdoing. Upon hearing this, Teague contacted the district attorney's office and found that it had not looked into the matter at all. Suspecting a cover-up, Teague and Burkett filed a grievance against the chief of police. They requested a meeting with the city manager but permission was denied. In the meantime, the chief transferred Teague and Berkett out of their assignments as investigators. Their replacement subsequently informed the chief that the criminal investigation division had an enormous backlog of cases. This prompted the chief to launch another investigation, once again using the private investigative agency. Subsequently, the chief concluded that Teague and Burkett's lacks supervision of the criminal investigation division constituted dereliction of duty. He fired them. Following exhaustion of their appeals, Teague and Burkett sued the city claiming a violation of various
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constitutional rights. Trial court granted summary judgment for the defendants and Teague and Burkett appeal their claim of retaliation for exercising a First Amendment right.

HELD: There are four elements to an employee's First Amendment retaliation claim against his employer. First, the plaintiff must suffer an adverse employment action. Second, the speech must involve a matter of public concern. Third, the employee's interest in commenting on matters of public concern must outweigh the employer's interest in promoting efficiency, and fourth, the employee's speech must have motivated the employer's action. In terms of its content, the speech in this case was predominantly public. Speech concerning police misconduct is public in content. However, in terms of its context, the grievance filed by the officers is more appropriately characterized as private. It was made in the setting of a private employee/employer dispute. The officers' focus was primarily on clearing their names, not rooting out public corruption. They used the internal department grievance procedure to air their concerns. Although their actions were interspersed with apparently genuine concerns about police wrongdoing, Teague's and Burkett's grievances were principally motivated by and primarily addressed concerns particular to their private interests, keeping their job. Since their comments did not primarily address a matter of public concern, the officers' actions are not protected by the First Amendment. Dismissal of officers affirmed. [Teague v. City of Flower Mound, Texas, 179 F.3d 377 (5th Cir. 1999)]

 city payroll. In 1998, Thomas filed suit against the chief of police claiming a deprivation of his constitutional right of liberty. Chief moves to dismiss suit.

HELD: The Supreme Court has defined a liberty interest under the Fourteenth Amendment due process clause to include a person's interest in his/her reputation, coupled with the more tangible benefits or entitlements that rest upon a person's good name. Accordingly, in order to state a claim for the deprivation of a liberty interest, a plaintiff must show: (1) a stigmatizing allegation; (2) dissemination or publication of that allegation; and (3) loss of some tangible interest due to the publication of the stigmatizing allegation. Here, Thomas alleges that by suspending him with pay and publicizing his suspension to the media without providing him with a hearing, his liberty interest was violated. The question is, however, whether Thomas can show the loss of some tangible interest in the form of his suspension with pay. Prior case precedent is clear. A protected liberty interest is at stake if there is a stigmatizing allegation made in conjunction with a discharge. However, Thomas was retained as an employee and received his full pay. Prior case law shows that it is not sufficient to state a liberty interest by merely establishing a stigmatizing statement. Thomas has failed to show that he has lost any entitlement or benefit. Dismissed for chief of police. [Thomas v. Harvard, 45 F. Supp.2d 1353 (N.D. Ga. 1999)]

Fireman's rule
Tucker was a police officer who was dispatched one night to a domestic violence call at a trailer park. The lighting in the trailer park was minimal, and although Tucker was carrying a flashlight, he did not turn it on for his own protection. As he walked from the street onto a grass-covered area between the street and the trailer house, he unknowingly stepped on a metal cover. The cover gave way and he fell into an underground valve compartment. The metal cover struck him on the neck and back. The officer subsequently claimed

Dismissal procedures
In 1995, the chief of police suspended from duty with pay Thomas, a police officer. He was not afforded any pre-deprivation or post-deprivation hearing at the time. In a statement issued to the press, the chief accused Thomas of possible involvement in criminal behavior. Thomas appealed his dismissal to the civil service commission but the matter remained pending. He continued on the
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that the injuries prevented him from returning to work as a police officer and filed suit against the trailer park owner alleging negligence. Trial court granted summary judgment for park owner on the basis of the Fireman's Rule and injured officer appeals.

HELD: Under Maryland common law, the Fireman's Rule provides that fire fighters and police officers generally cannot recover for injuries attributable to the negligence that requires their assistance. This public policy grounded doctrine is based on a relationship between fire fighters and police officers and the public that calls on the safety officer specifically to confront certain hazards on behalf of the public. However, public safety personnel are not barred from recovery for all improper conduct. This case is not one in which the Fireman's Rule applies to preclude recovery. Tucker was not injured by the negligently created risk that occasioned his presence at the trailer park. He was responding to a domestic dispute and was injured when the improperly seated metal cover over the valve compartment collapsed. Thus, the negligence alleged to have caused Tucker's injuries was independent and not related to the situation requiring his services as a police officer. Reversed for police officer and remanded for further proceedings. [Tucker v. Shoemake, 731 A.2d 884 (Md. 1999)]

 union filed unfair labor practice charges. A hearing examiner concluded that the borough's past practice of not interfering with scheduling by the judge rose to the level of a binding past practice. The examiner further concluded that the matter was subject to mandatory bargaining. On review, however, the state labor board vacated the finding on the grounds that for a past practice to exist, the activity in question must occur between the parties sought to be bound by it. Union appeals.

HELD: In the field of labor law there are four situations in which evidence of past practice is used: (1) to clarify ambiguous language; (2) to implement contract language that sets forth only a general rule; (3) to modify or amend apparently ambiguous language that has arguably been waived by the parties; and (4) to create or prove a separate enforceable condition of employment that cannot be derived from the expressed language of the agreement. In order to establish a past practice there must be some legal relationship between the parties. Here, the action is between the state judge and the borough with the police union merely benefiting from it. Since there is not a legal relationship between the judge and the borough, a binding past practice cannot be said to exist between the borough and the union. However, under Pennsylvania law, police officers also have the right to bargain over the terms and conditions of their employment. Prior case law has concluded that an issue is bargainable if it bears some rational relationship to an employee's duties. However, where a managerial policy concern substantially outweighs any impact the issue will have on employees, the issue will be deemed a managerial prerogative, rendering the matter nonbargainable. The issue in this case involves the activity of a third party, the judge, over which neither the borough nor the union has control. Additionally, the contract does not guarantee the officers a certain number of overtime hours for court appearances. Overtime court appearances are strictly dependent on scheduling by the judge. The judge can choose to accommodate the borough's request or he can ignore it without consequence from

Past practice
For many years the state trial judge scheduled hearings according to his schedule without input from the borough. Officers were frequently required to appear in court on their scheduled days off. Thus, in compliance with the collective bargaining agreement between the police union and the borough, officers were paid time and a half with a minimum of three hours for each court appearance. In late 1996, the chief of police wrote to the judge requesting that he schedule officers to appear in court on their regularly scheduled workdays. This would have reduced the opportunity for officers to earn overtime compensation. The
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either decision. It is the judge's decision that impacts the opportunity for overtime compensation. Therefore, it would be futile for the parties to bargain over an issue that is left to a third party to decide. Affirmed for borough dismissing unfair labor practice charge. [Ellwood City Police Wage and Policy Unit v. Pennsylvania Labor Relations Board, 731 A.2d 670 (Pa. Cmwlth. 1999)] police officer will reach $47,500. All newly hired Largo officers are required to possess a four-year college degree. 

Elkhart, Indiana

police officers
A 3 percent across the board pay raise each year and a bonus for attaining master patrolman rank highlights the economic portion of the new pact between the City of Elkhart and Fraternal Order of Police Lodge 52. The three-year agreement includes a $1,370 a year supplement for each officer who attains the master patrolman rank or higher. Also included in the contract is a provision that subjects officers to a polygraph examination during internal investigations only if the complainant first files a written statement. 
Settlements

Allentown, Pennsylvania

police officers
An arbitrator has awarded the 180 patrol officers and sergeants of the Allentown Police Department a three-year contract retroactive to January 1. The award grants pay raises of 4 percent in each year of the pact. Officers placed in temporary assignments will receive a 5 percent premium above their normal pay if the assignment lasts more than 28 days. The clothing allowance was increased from $200 to $300 for uniformed personnel and from $300 to $500 for non-uniformed personnel. Officers were granted an additional personal day, bringing their annual total to three. Additionally, court time on days off will be paid at a 4 hour minimum. The officers are represented by Queen City Lodge No. 10 of the Fraternal Order of Police.

Jupiter, Florida

police officers
Members of the Jupiter Police Department will receive up to 7.5 percent in wage hikes in the coming year under a new pact between the city and the officers. A pay raise of 2.5 percent is effective October 1, while an employee can earn merit pay of up to 5 percent effective on his or her hiring anniversary date. Starting pay now goes to $32,884. Top of scale will be $48,547 after an officer has progressed through seven pay steps. The two-year contract reduces the number of pay steps by two. Officers were represented in the negotiations by the Palm Beach County Police Benevolent Association.

Largo, Florida

police officers

Santa Paula, California

police officers
Following lengthy negotiations between the city and the Pinellas County Police Benevolent Association, Largo police officers and sergeants will receive a flat $3,500 annual raise October 1. The new three-year contract provides for 5 percent pay boosts in each of the next two years. The new salary scale will pay police officers between $29,000 and $45,000. Sergeants will draw $40,000 to $53,000. By the last year of the contract, top of scale for a
The Santa Paula City Council has granted the town's 29 police officers a 2 percent pay boost. The force remains the lowest paid in Ventura County. Officers have worked without a memorandum of understanding since October 1997. The raise was not made retroactive. The officers recently affiliated with the International Brotherhood of Police Officers, NAGE, AFL-CIO.