The matter arises from a dispute in Texas' largest sheriff's department. The FLSA permits a public employer to award compensatory time in lieu of cash for worked overtime. However, accumulation of that time by public safety officers is limited to 480 hours. Upon separation from employment an employee must be paid cash for the banked time. In an effort to control its unbudgeted liability for the "comp time," the Harris County Sheriff's Department began requiring deputies to use their time when a particular threshold was reached. The deputies' union, the Harris County Deputies' Organization, IUPA, AFL-CIO, challenged the procedure with the claim that once earned, the time - like cash - belonged to the employee and the employer could not mandate how

Interestingly, since its decision in Garcia v. San Antonio Metropolitan Transit Authority in 1985 applying the FLSA to state and local governments, the Supreme Court has considered only about a half dozen public sector FLSA cases. The Christensen case is the second of those to arise from the Harris County Sheriff's Department. The prior case, Moreau v. Harris County, resulted in a finding that a public employer is not required to bargain over the issue of cash versus compensatory time for worked overtime in jurisdictions that do not otherwise authorize collective negotiations. Under Texas law, Harris County deputy sheriffs are currently not authorized to bargain with their employer. 

Given that the review order was issued on October 4, a decision in the case might be possible before the end of the court's term in July of 2000.

In other Fair Labor Standards Act (FLSA) cases, the justices declined to consider Baltimore City Police Department v. Fraternal Order of Police Lodge 3, No. 98-1802. A lower court rejected the city's argument that Department of Labor FLSA regulations had not been lawfully adopted and should not be used to determine whether police sergeants and lieutenants are exempt employees. In denying review, the Supreme Court passed up an opportunity to reconsider the Garcia decision in light of several recent rulings limiting the scope of federal authority over the states. Likewise, in Paresi v. City of Portland, Oregon, No. 99-144, a lower court ruled that the city was entitled to use the FLSA "window of correction" to preserve the exempt status of certain supervisory police officers after impermissible short-term suspensions had been imposed. The Supreme Court inaction leaves in place a ruling that the officers' exempt status was not lost and the city had appropriately corrected the

Also rejected for consideration was City of Newark, New Jersey v. Fraternal Order of Police, Lodge 12, No. 98-1919, wherein a lower court ruled that two Sunni Muslim police officers must be allowed to wear beards as a reasonable accommodation to the exercise of their religious beliefs. The Department already permitted beards on men with skin conditions. Justices decided not to review Bolinger v. Ridge, No. 98-1950, wherein a police officer charged with criminal misconduct was terminated without a pre-disciplinary hearing. A federal appeals court ruled that the officer was not denied due process since he later used arbitration proceedings that ultimately led to his reinstatement. 

In Franklin v. City of Birmingham, Alabama, No. 98-1963, the high court refused to consider a former police officer's claim that his dismissal from the force was based on race discrimination. A race discrimination claim was also rejected in Robinson v. Sheriff of Cook County, Illinois, No. 98-2034. Lower courts refused to permit a class action suit based on alleged racial discrimination in sheriff's department hiring practices.

Finally, refusal to review Balliet v. Heydt, No. 99-197, leaves in force a ruling that a claim under the Americans with Disabilities Act cannot be pursued by a police officer who lost his job based on an alleged "sociopathic personality" because the officer ultimately was reinstated as a result of an arbitration award.

The affiliation is the latest chapter in an effort to reunite Houston officers into one labor organization. In 1978, a group of officers who were disenchanted with the perceived lack of aggressiveness on the part of the Houston Police Officer's Association (HPOA) resigned and formed the HPPU, becoming Local 109 of the newly founded IUPA. The HPPU never reached the level

In 1996, the half-century-old HPOA changed its name to the HPOU in an effort to bring the union-oriented HPPU members back into the group. For a while, the HPOU maintained a loose relationship with the Combined Law Enforcement Associations of Texas. Following the 1998 selection of the HPOU as the bargaining agent for Houston officers' first labor contract, efforts again were made to merge the two rival labor organizations as many officers actually held membership in both groups. When merger efforts failed, HPOU leaders pursued the IUPA affiliation.

IUPA President Sam Cabral said the move heralds the long-awaited unification of all Houston police officers into one powerful union under the

HPPU officials said the action does not sound the death knell for the group's 600 members. Officials said member services would continue as before. The group is expected to remain as an independent union for the near future.

But HPOU wasted little time in taking advantage of its momentum. Earlier this month the union filed a lawsuit to prohibit dues deduction for the smaller HPPU. According to HPOU officials, the HPPU constitution allows it to exist only so long as it holds AFL-CIO affiliation. The suit is to speed up the inevitable and bring HPPU members into the HPOU fold officials said.

The odd saga began in 1996 when Jordan applied for a police position. He scored a 33 on the Wonderlic Personnel Test. The city used a test score range of 18 to 30 for police applicants. Jordan's high score disqualified him. His case subsequently

U.S. District Judge Peter Dorsey ruled last month that a rational basis existed for the city to use the scoring range selected. The court noted that research suggested that hiring overqualified officers could lead to job dissatisfaction and employee turnover. Since Jordan was not a member of a suspect classification for constitutional law purposes nor did he have a fundamental right to be a police officer, the city did not violate his rights.

"Plaintiff may have been disqualified unwisely, but he was not denied equal protection," the judge said in his written opinion. 

Earlier this month the New York State Police announced that ten troopers and two supervisors have been suspended for cavorting with nude women

Police Superintendent James McMahon, who ordered the suspensions, said, "I was appalled at the conduct . . . of a handful of troopers who brought discredit to the agency and themselves."

Meanwhile, two Miami-Dade police officers were placed on desk duty and face an investigation after posing for snapshots with O.J. Simpson. The two officers met Simpson after responding to a 911 call he placed from his girlfriend's townhouse.

A spokesman for the Dade County Police Benevolent Association said the officers may have used poor judgment, but he did not think any department rule had been violated.

Simpson was acquitted in the 1995 murder of his ex-wife Nicole and a friend Ronald Goldman. A later civil suit against Simpson was successful. 

The dispute arose in 1994 when newly elected Mayor Rick Mystrom unilaterally ordered the shift change in an effort to reduce overtime costs and deploy more officers on the street. He justified his actions by relying upon a provision of the labor

The arbitrator rejected the argument that the provision created an option in scheduling. She noted that the past practice for 22 years had been 4/10 patrol shifts. Any change would need to be bargained. Gaunt ruled that each patrol officer was to receive four hours of overtime pay at straight time for each time the officer worked a fifth day during the workweek. 

Officers returned to the 4/10 plan last fall after Gaunt originally ruled that a contract violation had occurred. Municipal officials now have the option to seek court review of the award. 

In a second petition, 100 percent of the department's sergeants asked that the Teamsters be named as their bargaining representative.

This is the second effort by the Teamsters to become the bargaining agent in the county surrounding Annapolis. In 1997, a three-vote majority retained the FOP as the labor representative. 

Finally, in County of Orange, California v. Wehril, No. 99-433, the legal effect to be given a state administrative decision is the focus of appeal. A deputy marshal was dismissed from his position after being unable to meet county medical standards. A hearing officer subsequently reinstated him but without an award of back pay. The deputy brought a federal civil rights suit for his back pay. The Court of Appeals ultimately ruled that the administrative determination did not prevent re-litigation of the matter in federal court.

Supreme Court update

South Carolina Law Enforcement Division v. Glover, No. 99-145, seeks reversal of a lower court determination that federal fair employment law was violated when a state police captain was dismissed from her position partially because of comments she made about another law enforcement official while giving a deposition. A federal appeals court found the dismissal to have been retaliatory in nature.

Wimmer v. Suffolk County, New York, Police Department, No. 99-206, also concerns alleged retaliatory action against an employee, this time for speaking out against racism. Lower courts rejected the terminated probationary officer's claim that his dismissal violated his free speech rights.

Employees and former employees of a police department seek overturning of a jury verdict in Amati v. City of Woodstock, Illinois, No. 99-216. The plaintiffs unsuccessfully sued the city and chief of police for intercepting their personal phone calls at the police department. The jury found that the department's actions fell with the exclusions of the federal anti-eavesdropping law. 

In Singleton v. Cecil, No. 99-376, a discharged at-will police officer claims his due process rights were violated when he was dismissed for comments his wife made about the chief of police during a telephone call with her daughter. 

Police eyesight standards are the subject at issue in Alsbrook v. City of Maumelle, Arkansas, No. 99-423. An individual who is unable to meet state training board visual acuity requirements brought a claim under the Americans with Disabilities Act. Appeals court ruled that the Eleventh Amendment bars an ADA suit against the State of Arkansas. 

Cases of interest

HELD: The parties to the case agree that Balint has established a prima facie case of discrimination and that she was denied employment due to her refusal to work on her Sabbath. The city concedes that it took no steps to accommodate her request for observance of her Sabbath. Under federal fair employment law, an employer is barred from discriminating against an employee based on religion. The law further provides that seniority systems are valid methods of providing different levels of compensation and privileges even if they have a discriminatory impact on employees. In harmonizing these provisions, the Supreme Court has ruled that neither a collective bargaining contract nor a seniority system may be employed to violate fair employment law. The court did not regard the requirements of religious accommodation and seniority systems as mutually exclusive. Thus, an employer need not transgress upon a seniority system to make religious accommodation. Further, the employer is required to attempt accommodations that are consistent with the seniority system and that impose no more than minimum cost. The existence of a neutral seniority system does not relieve the employer of its duty to reasonably accommodate the religious beliefs of its employees, so long as the accommodation can be accomplished without disruption to that system and without more than minimum cost. Here, the two possible accommodations that would not violate the seniority system are voluntary shift trades and shift splitting. The testimony at the trial court revealed that the city

HELD: Federal civil rights law requires that an alleged constitutional deprivation occur under color of law in order to be actionable. Certainly, the inaction of the various supervisors as public employers falls within the category of acting under color of state law. However, the primary antagonist, a fellow police officer who took credit for creating many of the abusive and harassing materials, cannot be said to be acting under color of law. This officer allegedly was making fun of homosexuals on a non-official bulletin board in the precinct. He maintains that no matter how crude and constant his behavior, it was a private act. The court agrees with him. The color of law requirement necessitates a finding that the harasser be a supervisor and have some position of authority over the plaintiff. Here, the officer was simply a fellow employee and had no authority over Quinn's employment circumstance. Thus, the claim against the fellow officer must be dismissed. As to the notion generally of a denial of equal protection under the law, to establish an equal protection violation a plaintiff must prove purposeful discrimination directed at an identifiable or suspect class. Prior case law holds that liability can be imposed upon individual employers and responsible supervisors for failing to properly investigate and address allegations of sexual harassment when, through this failure, the conduct becomes an accepted custom or practice of the employer. A hostile work environment directed against homosexuals based on their sexual orientation constitutes an equal protection violation even though it may not violate federal fair employment law which specifically defines sex discrimination. Conduct by police officers, supervisors, and policymakers failing to address or outright condoning harassment of homosexuals is

HELD: In Arkansas, appeals such as this are reviewed under the substantial evidence rule. The court's role is to review an administrative decision to see if it is supported by substantial evidence. Substantial evidence has been defined as valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion and force the mind to pass beyond conjecture. The question is not whether the evidence would have supported a contrary finding, but whether it supports the finding that the administrative agency made. It is the prerogative of the agency to believe or disbelieve any witness and decide what weight to accord the evidence. A review of the evidence in this case shows that the decision of the state police commission was supported by substantial evidence. There was valid legal and persuasive evidence that a reasonable mind might accept to find that Smith was in violation of the various provisions of the state police code of conduct. Similarly, the decision was not arbitrary and capricious. Prior case law holds that once substantial evidence is found to exist, it automatically follows that a decision cannot be classified as unreasonable or arbitrary. Thus, the actions taken by the commission were reasonable and based on the facts and circumstances of the case. Reversed for state police commission reinstating termination of police officer. [Arkansas State Police Commission v. Smith, 994 S.W.2d 456 (Ark. 1999)]

HELD: Carver asserts that the merit commission failed to comply with the Illinois Procedure Act when it conducted her hearing. A review of this state statute, however, reveals that most units of government are excluded from its coverage. In this case the county merit board was created by the county, not by the state, and thus is a local, not state agency. Accordingly, the requirements of the Illinois Procedure Act do not apply to this commission. In addition, the deputy argues that the commission failed to inform her of her right to judicial review of its decision in the time limit to do so. She argues that the commission's decision, therefore, was constitutionally inadequate. The text of the Illinois State Constitution does not recognize a right to appeal for administrative proceedings. Further, the right to appeal from an administrative decision is not essential to due process of law. Rather, the right to appeal may or may not be granted in a given situation as the legislature deems appropriate. Prior case law to the contrary is overturned. The merit commission's decision on notice to Carver was sufficient. Discipline affirmed. [Carver v. Nall, 714 N.E.2d 486 (Ill. 1999)]

HELD: Illinois courts have held that a possessor of land owes to a police officer who is performing his official duties at a place where he might reasonably be expected to be the same duty owed to an invitee. That duty is reasonable care to