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Volume 18, Number 12

Employer controls comp time use Supreme Court says
Nothing in federal overtime law prohibits a public employer from ordering an employee to use compensatory time, so said the Supreme Court earlier this month. The ruling dashed the hopes of a group of Texas deputy sheriffs who asserted that compensatory time earned from working overtime was a substitute for cash and thus, like cash, belonged to the employee once earned. Since an employer cannot lawfully control how an employee spends wages, the boss should not be able to tell the employee when to use earned comp time. Not so said the justices. While the Fair Labor Standards Act (FLSA) specifies the circumstances under which compensatory time must be credited to a public employee and the amount that may be accumulated, the law is largely silent as to controls placed upon comp time usage. Thus, nothing prevents an employer from ordering an employee to take the day off and charge the comp time account.

The case, Christensen v. Harris County, Texas, No. 98-1167, arose when the sheriff's department, concerned about its unfunded liability for accrued overtime, adopted a rule limiting the number of earned compensatory time hours that deputies could accumulate. Although the FLSA cap is 480 hours, Harris County Sheriff's Department set an internal limit of 240 hours. Any deputy who approached the limit was required to "burn" hours by taking time off. A group of 127 deputies brought suit over the matter. The deputies conceded that the FLSA was largely silent on the issue but argued that absent a prior agreement with the employer, once time is earned the employee controls when to use it, subject only to the requirement that employer's operations not be disrupted. The Department of Labor (DOL) in an advisory opinion agreed on the basis that the county had no contrary

 prior agreement with the deputies over comp time use. Case law in two other federal circuits had previously adopted this position. A Houston federal judge concurred with the deputies but the Court of Appeals for the Fifth Circuit reversed. 

On appeal, Justice Clarence Thomas, writing for the 6 to 3 majority, found that the DOL advisory opinion was not entitled to the high level of judicial deference given to more formal administrative rulings. The justices were not bound to follow DOL's interpretation of the law. Similarly, since the FLSA is silent on the question of forced comp time use, the county was not prohibited from ordering use of the accrued time to prevent cash liability. Otherwise, employers would have to pay cash in every instance where accrued time exceeded the 480-hour cap. Adopting this view, Justice Thomas suggested, would effectively nullify Congress' efforts to provide governmental entities flexibility in compensating their employees for worked overtime.

The Harris County Deputies' Organization, Local 154 of the International Union of Police Associations (IUPA), which backed the deputies' suit, has no labor contract with the county. Theoretically, each individual deputy reaches agreement with the county over whether to receive cash or compensatory time for worked overtime. Since the deputies enjoy only limited civil service protection, the employer essentially mandates the overtime rules. 

While the Supreme Court may have resolved the question of who controls compensatory time usage, justices showed no interest in reconsidering the constitutionality of the FLSA as applied to local government. After reading recent decisions that have limited the power of Congress to control state
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governments, some court-watchers had suggested that the justices might entertain reconsideration of the constitutionality of the FLSA. Neither Justice Thomas' majority opinion nor Justice Steven's dissent displayed any hint that the court held concerns about the FLSA's constitutional applicability to lower branches of government. 

Congress first made the FLSA applicable to local government in 1966. In 1976, the Supreme Court ruled that Congress lacked the power to regulate wages and hours of local government employees engaged in "traditional governmental functions." In 1985, the court reversed itself, finding no constitutional bar to applying the wage and hour law to all local government workers. 

Recent decisions that affirmed the retention of state sovereignty under the Tenth Amendment and the limitations on federal courts to hear cases involving the states had raised speculation that

 justices might reconsider the constitutionality of the FLSA application to state and municipal government. 

Harris County Attorney Michael Fleming called the decision "a huge victory for local taxpayers," claiming the ruling will save the county up to $20 million in overtime costs. One of the deputies' attorney, Murray Malakoff, reacted, "It's a sad day for the working man. The bottom line is that they will bend the rules when the rules favor management." The National Association of Police Organizations (NAPO), which filed an amicus curiae (friend-of-the-court) brief in the case, called the decision "a blow against public workers and boon for public employers." Robert Scully, Executive Director of NAPO, said, "This means that public employers are able to avoid paying overtime wages indefinitely, further diminishing the value of comp time."

Blue flu strikes Pomona, California
While all parts of the country have expired influenza this past winter, a particularly nasty strain _ the "blue flu" _ struck Pomona, California, earlier this month. A majority of the city's police officers called in sick for the May 10 day shift. About 60 of the community's 178 officers called in ill, according to Chief Fred Sanchez. 

Both officers and supervisors failed to appear for the shift. 

 Officers have been working without a memorandum of understanding since last June 30. According to Chief Sanchez, benefits, not wages, have been the sticking point in negotiations. The last concerted job action occurred in Pomona twenty years ago.

The Pomona Police Officers Association and the Police Managers Association, which represents lieutenants, denied involvement in the job action. 

Turmoil hits Las Vegas police union 
Concerns about the solvency of the union's health insurance program has ignited an upheaval in the Las Vegas Police Protective Association (LVPPA), leaving the union facing a financial audit and the prospects of a mass membership exodus. Under the collective bargaining agreement with the city and county the LVPPA administers a $15 million health insurance plan that covers 9,000 police officers, civilian employees, and dependents. Last year, questions were raised about the fund's solvency after its reserve dropped from $3 million to less than $100,000. A union promised audit has yet to be conducted.

Meanwhile, earlier this month, two union officials, including a vice president, were removed from office and four others resigned following an unsuccessful effort to oust LVPPA president Andy Anderson. Anderson claims the insurance program's problems are not as severe as rumored. Nonetheless, a reported 600 officers have notified the department of their intention to resign from the union.
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Earlier this month, the police department announced it would conduct its own audit of the insurance plan.

A rival group, the Clark County Police

 Officers' Association, has begun to solicit members. The group's founder, Sgt. Monty Hall, told a Las Vegas newspaper that the organization would be backed by the Fraternal Order of Police. 

Lay-offs hit Waterbury, Connecticut
Twenty-five of Waterbury, Connecticut's 346 police officers lost their jobs May 5 after a breakdown in budget negotiations between the mayor and the police officers' union. The city is facing a large budget shortfall as a result of bankruptcy of the private firm that had been used to collect municipal taxes. Only 93 percent of city taxes had been collected and a several million dollar guarantee was lost when the collection firm folded. Without the guarantee, the city cannot recoup the uncollected taxes.

The officers were among 170 municipal

 workers who were furloughed. The police layoffs are expected to save $1.1 million annually.

City officials had offered the police union a no layoff guarantee if officers agreed to work overtime and holidays at straight pay and increase the number of squads from three to seven. A change in the number of squads would mean fewer officers off duty on any given day, thereby reducing overtime costs. Officials of the Waterbury Police Union, Local 1237 of AFSCME, rejected the proposal because it was contrary to the labor agreement. 

Justice Department threatens to sue LAPD 
Department of Justice (DOJ) officials have served notice that patterns of unconstitutional police practices will not be tolerated, no matter how large the department. To make the point, Acting Assistant Attorney General Bill Lann Lee earlier this month advised the Los Angeles Police Department (LAPD) that the Civil Rights Division has been authorized to sue the LAPD for its "practice of constitutional violations through excessive force, false arrests, unreasonable searches and seizures, and that management deficiencies have allowed this misconduct to occur."

In recent months the LAPD has been rocked by revelations that officers in the Rampart Division fabricated testimony, planted evidence, brutalized prisoners, and otherwise engaged in improper and illegal behavior. Dozens of criminal convictions are expected to be overturned as a result. Thirty officers have been disciplined in the scandal.

The DOJ reportedly has been monitoring LAPD activities since the 1991 beating of motorist Rodney King. Ironically, the King incident prompted Congress in 1994 to pass legislation

 granting the DOJ authority to bring suit against police agencies that engage in a pattern or practice of unconstitutional behavior. To date, about a half-dozen such suits have been filed nationwide. Pittsburgh, the first city sued, quickly entered into a consent decree with the DOJ specifying the steps to be taken to eliminate any unconstitutional behavior by police officers. An outside monitor was appointed to ensure compliance. On the other hand, Columbus, Ohio, police officials and the Fraternal Order of Police are actively resisting DOJ litigation efforts. 

Assistant Attorney General Lee told Los Angeles officials that the DOJ is willing to defer filling suit to allow the opportunity to work toward a voluntary settlement. City officials have responded quickly. The City Council has designated four city officials to negotiate an agreement on how best to reform the LAPD. No LAPD official was among those designated individuals, giving rise to speculation that Chief Bernard Parks, appointed in 1997, has fallen out of favor with city leaders.
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Charges dropped against officer in K-9 death
Animal cruelty charges against a San Diego police officer in the death of his canine partner were dismissed last month after a jury deadlocked 9 to 3 in favor of acquittal. Lawrence "Skip" Cahill had been charged in the death of a seven-year-old German shepherd that died after being left in a police car on a hot July day last year.

Cahill was charged with recklessly causing the animal's death but the city prosecutor decided to drop the animal cruelty charges after the hung jury.

The dog died after Cahill left him in the parked patrol car for at least 90 minutes. The engine

 was running and the vehicle was parked in the sun with the windows rolled up. However, the air-conditioning unit failed, leading to the dog's death.

At trial, the prosecutor argued that Cahill knew the air-conditioning system was clogged with dog hair and was not working properly. Cahill's lawyer contended that the officer believed that the system had been repaired. Additionally, he broke no department policies by leaving the dog in the car.

Cahill, who was backed by the San Diego Police Officers Association, remains on the force but no longer is assigned to handle canines. 
Litigation

Supreme Court update

 system. Three 911 telephone lines, three non-emergency telephone lines, and four radio channels were connected to the system. All communications over the various telephone lines and the radio channels were recorded. The board, however, decided that one telephone line would remain unrecorded so employees could use it for personal calls. The chief of police issued a memorandum to all employees stating that the one telephone line was non-recorded and could be used for personal business. Eleven months later, however, the chief hired a contractor to secretly connect the unrecorded telephone line to the recording system. Only the deputy chief of police and the telecommunications supervisor were told of the change. The telecommunications supervisor was instructed by the chief that she should listen to conversations recorded on the line and apprise him of any that might interest him. The secret recordings continued for three months until department employees learned from a service technician that the line was tapped. Subsequently, five police department employees filed suit against the village and the chief of police alleging a violation of federal wiretap statutes as well as their Fourth Amendment right against
In addition to the Christensen decision, the high court this past month declined to review Motley v. New Jersey State Police, No. 99-1395. This leaves in place a lower court ruling that the Americans with Disabilities Act was not violated when the state police refused to promote a detective who had been injured on the job. His subsequent acceptance of a disability pension precluded a claim that he was otherwise qualified for the position.

Cases of interest

Right to privacy
In 1991, village residents passed a referendum approving a tax increase to install a 911 telephone system. Under Illinois law, whenever a municipality imposes a surcharge to pay for the cost of a new emergency telephone system, it must establish an Emergency Telephone System Board (ETSB). The board is responsible for the oversight of the system. Miller, the chief of police, was appointed by the mayor to head the ETSB. The ETSB subsequently selected vendors to install the
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unreasonable searches and seizures. Trial court awarded damages of $10,000 per plaintiff according to the Federal Wiretap Act. The court also found a Fourth Amendment violation had occurred. The village appeals.

HELD: The village argues that it is not liable under the Federal Wiretap Act because municipal governments are not covered by the statute. Congress enacted the Federal Wiretap Act for the dual purpose of protecting the privacy of wire and oral communications and delineating the conditions under which such communications may be intercepted. The plain language of the act, however, holds that "any person" who unlawfully intercepts communications is subject to civil and criminal penalties. "Person" is defined in a manner that does not include a municipality within its definition. A review of the legislative history of the law similarly shows no congressional intent to include municipalities as entities capable of violating the statute. Thus, the village is not liable under the Federal Wiretap Act for the actions of the chief. The same holds true for the allegation of violating the Fourth Amendment. In order for a municipality to be liable for a constitutional violation it must be shown that a policy or a custom caused the alleged injury. Courts have identified three ways in which a municipality may be liable to a plaintiff for civil rights violations resulting from governmental policy: (1) an express policy that causes a constitutional deprivation; (2) a widespread practice that, although not authorized by written policy, is so permanent and well-settled as to constitute a custom or usage with the force of law; or (3) an allegation that the constitutional injury was caused by a person with final policymaking authority. In this case, there was neither an express policy nor a longstanding custom of the village to listen to employees' private conversations. Likewise liability does not attach because the chief of police was not the person with final policymaking authority. That authority rested with ETSB, not the chief of police. Thus, the village has no liability for the alleged constitutional violation. The chief of police acted

 on his own when he connected the telephone line to the recording system. The village had initially chosen not to record the particular line. The chief's actions frustrated rather than implemented that policy. Reversed for village and remanded for judgment in favor of Village. [Abbott v. Village of Winthrop Harbor, Illinois, 205 F.3d 976 (7th Cir. 2000)]

Disciplinary procedures
A hit-and-run incident occurred one evening. Several state troopers, including Cerrone, a sergeant, responded to the scene. Cerrone left the scene and commenced to unsuccessfully search for the automobile involved. Some months later the state police received a letter alleging that the brother of a state trooper was the driver of the vehicle that left the scene of the accident. The letter further alleged that the facts of the accident were covered up by the state troopers. State police investigators followed up on the letter but could never identify the individual who penned it. Despite their failure to positively identify the source of the letter, police officials initiated an investigation of the incident. Indeed, the investigation revealed that the trooper's brother likely was the driver, that he had hidden the car behind a gas station after the accident, and later had called the state police barracks and spoken to the zone sergeant. Investigators concluded that there was likely some cover up of the incident involving at least the zone sergeant and the driver. The investigators decided to question Cerrone about the matter. They constructed a psychological profile of Cerrone to assist in the planned interview. In addition, they arranged for rooms at a hotel where the questioning was to be done. One day, using an unmarked police car, state police investigators stopped Cerrone. He was asked if he was carrying a weapon and then placed in the back of the car. He was transported to the hotel room, read his Miranda rights, and informed he was the target of a criminal investigation. He was then questioned for approximately six hours. Cerrone was told he could leave after he agreed to take a polygraph
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examination, which he took the next day. Cerrone subsequently filed suit against the investigators alleging that they had violated his Fourth Amendment right against unreasonable search and seizure. The state police investigators move for summary judgment.

HELD: To succeed in a constitutional tort claim, a plaintiff must prove he was deprived of a constitutional right by a person acting under color of law. Because the defendants clearly were acting under color of state law, the primary question in the case is whether Cerrone was deprived of a constitutional right. The Fourth Amendment prohibition on unreasonable searches and seizures generally requires the police to secure a warrant based on probable cause prior to a search or seizure, subject to well-recognized exceptions. The defendants contend that the facts of this case fall squarely within one of the recognized exceptions: work-related investigations. As a result, they argue they were not required to have a warrant, probable cause, or any other individualized suspicion. The manner of the alleged seizure, however, supports Cerrone's position that the investigation was criminal in nature, not merely a work-related inquiry. He was stopped on his way home from work, placed in an unmarked police vehicle where he was guarded, transported to a hotel, given a Miranda warning, and interrogated for six hours. Secondly the collective bargaining agreement between the state police and the troopers' union sets forth procedures for administrative inquiries, procedures which the defendants did not follow. Additionally, the investigators had constructed a psychological profile of Cerrone to assist in the interrogation. Finally, the court record is replete with admissions that Cerrone was the target of a criminal rather than an administrative investigation. While prior cases have held that use of criminal investigative techniques, such as lineups and questioning, do not automatically create a criminal as opposed to administrative investigation, the case at hand is distinguishable. The distinction between searches and seizures for the purposes of criminal

 prosecution and those undertaken for work-related or administrative purposes is critical. Many courts have upheld a standard lower than probable cause for administrative inquiry purpose, such as in mandatory drug testing. However, where the search is conducted by a governmental employer to further a criminal investigation, the traditional requirements of probable cause and a warrant are applicable. Traditional Fourth Amendment safeguards applicable in the context of criminal investigations cannot be avoided simply because the agency conducting the search is a governmental employer ostensibly supervising its employees. The defendants argue, however, that even if the conduct constituted a seizure within the meaning of the Fourth Amendment, probable cause justified their conduct. The Supreme Court has defined probable cause as the facts and circumstances within an officer's knowledge, and of which he has reasonably trustworthy information, sufficient to warrant a man of reasonable caution in the belief that a criminal offense has occurred. Probable cause turns on analysis of the facts of each case. Here, the investigating troopers received a letter from a source they were unable to identify. Thus, the troopers had no basis on which to assess the credibility of this informant. The subsequent investigation revealed little about Cerrone's involvement in the matter other than that he was on duty the night of the incident. Since the question still exists as to whether the information constitutes probable cause thereby justifying the investigators actions, motion for summary judgment is inappropriate. Motion for summary judgment for investigators denied. [Cerrone v. Cahill, 84 F. Supp.2d 330 (N.D.N.Y. 2000)]

Disciplinary grounds
Milwaukee Police Department regulations contain a subject-to-duty rule which provides that while officers are on duty 40 hours per week, they are nonetheless subject to the duty to take required police action in any matter coming to their attention at any time. Department regulations also provide
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that members of the department found intoxicated, whether on or off active duty, shall be suspended. Whenever two or more supervisors have reasonable suspicion to believe that an officer is intoxicated, the officer may be required to submit to an alcohol test. Four different officers who were disciplined for violating the no intoxication rule filed suit against the city alleging that the rule had subjected them to an unreasonable search and seizure under the Fourth Amendment. In the first case, an officer was off duty and at home when he got into an argument with his wife. In the course of the quarrel he knocked over an ironing board and punched a cabinet but never committed any act of abuse against his spouse. The officer then went to bed. The wife subsequently called the police and two supervisors arrived at the scene. They went into the bedroom where the officer was asleep, awoke him, and noting an odor of alcohol on his breath, ordered him out of bed and to accompany them to the police station for an alcohol test. He subsequently tested a 0.18 and was suspended for five days for violating the intoxication rule. In the second incident, another officer, while off duty, attempted to stop a fight at a public festival. She was struck in the head. She approached an on-duty officer to make a battery complaint against the person who struck her. The sergeant at the scene suspected she was intoxicated and ultimately she was ordered to accompany the supervisor to the police station for an alcohol test. At the station the intoxilizer test recorded a 0.17 reading. This officer was suspended for five days for violating the intoxication rule. In a third instance, a sergeant was attempting to determine whether an officer who was on injury leave was at home. When she did not answer the calls, two supervisors went to the home and found no one there. Her car was observed at a nearby restaurant. When the supervisors entered the establishment, they observed the officer at the bar. They asked if she had been drinking and she responded sarcastically that she had been "drinking a lot." She was ordered to take an alcohol test at the police station. This test revealed no alcohol in her system. In the final instance, an officer came home from work and got into an argument with his wife. He broke a wineglass and threw it on the ground. During the argument the wife called her mother who subsequently called the police. When police supervisors arrived they knocked on the door but got no response. They subsequently entered the house, finding the officer alone as the wife had already departed. The officer told the supervisors to leave but they refused. The supervisors concluded that the officer was intoxicated an ordered him to go to the police station for an alcohol test. Before leaving they searched the house and found an unloaded shotgun as well as the officer's badge and service revolver. At the police station the officer recorded a 0.11 blood alcohol level. He was suspended for one working day for violating the intoxication rule. The officers subsequently sued the department claiming the incidents violated their Fourth Amendment right to be free of unreasonable searches and seizures. Both sides moved for summary judgment. 

HELD: To determine whether a particular intrusion is reasonable, and hence constitutional, the court must balance the intrusiveness of the search or seizure on the individual's Fourth Amendment interest against its promotion of a legitimate governmental interest. The first question for the court to determine is whether an individual is entitled to any Fourth Amendment protection. If the individual has a legitimate expectation of privacy in the context in which the intrusion was carried out, the Fourth Amendment protection arises and the court characterizes the intrusion as a search or seizure. If the intrusion is determined to be a search or seizure, the court must then determine whether the search or seizure was reasonable. When a governmental employer tests an employee for drug or alcohol use, the Fourth Amendment is implicated, even though the testing is unrelated to the enforcement of the criminal law. A series of prior cases make it clear that the only legitimate justification for testing public employees, based on a standard other than a warrant based on probable cause, is a well-founded concern about public safety.
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Public safety is the most compelling factor on the government's side of the balance. Testing for a goal other than public safety, such as increasing productivity, would be unreasonable because the objective of enhanced productivity lacks sufficient importance when viewed light of the intrusiveness of the testing. The current cases present the issue of whether it is reasonable to test government employees in safety-sensitive positions for excessive use of alcohol while the employees are off duty. Certainly, police officers are subject to a broader testing rule than employees in non-safety sensitive positions because an intoxicated police officer performing police duties would endanger public safety. It does not follow, however, that any testing is reasonable simply because it involves police officers. Tests will only be reasonable if they are based on a reasonable suspicion that the officers were intoxicated under circumstances where the officer's intoxication presented a danger to the public safety. In each of the cases presented, the supervisors had a reasonable suspicion to believe that the officers were intoxicated. In two cases, the officer at the street festival and the officer in the restaurant, they might have encountered a situation requiring them to perform police duties. Although off-duty officers may encounter such situations infrequently, it is critical that when emergencies do occur officers be prepared for them. Public safety requires that off-duty officers who encounter emergencies be capable of responding competently. If an off-duty officer encounters such a situation in a state of intoxication the officer would endanger public safety. The seizure of these two officers was reasonable. Consequently, the city's motion for summary judgment in their suits is granted. In a case of the officers who were at home, the record is less than clear. The officers argue they presented no danger to public safety and, therefore, the seizures of them were unreasonable. The city counters that they were subject to being recalled at any time. However, there is little evidence in the record of whether in the real world off-duty Milwaukee police officers are ever called in to work. Thus, the question of reasonableness of the seizure in these two cases presents issues of fact that must be resolved at trial. The officer in the fourth case who told the supervisors to leave his home contends that the entry into his house also violated his Fourth Amendment rights. The police department concedes that the police supervisors entered the home without an arrest or search warrant, did not have consent to enter, and did not have probable cause to believe a crime was being committed. Prior case law holds that police may enter private residences for purposes of making an arrest. They must at a minimum have probable cause to believe that the person sought has committed a crime. Secondly, a search carried out on a suspect's premises without a warrant is unreasonable unless the police can show that it falls within one of a carefully crafted set of exceptions based on exigent circumstances. The police department suggests that exigent circumstances justified the entry into the house. However, there is no evidence that the police were told that a person in the home was in need of immediate aid or otherwise in danger. The officer was not alleged to have committed any abusive act or to have made any such threat. There was no likelihood of evidence being destroyed. Thus, the city has failed to show that the entry by the supervisors into the officer's house was permissible under the Fourth Amendment. Search of the officer's home and seizure of the unloaded shotgun, his badge, and revolver violated the Fourth Amendment. As to the city's liability in this case prior law holds that municipalities are liable for federal constitutional torts when the action is taken pursuant to a policy or custom of the entity. In this case, the city had an express policy requiring officers, whether on or off duty, to submit to an alcohol test whenever two supervisors had reasonable suspicion to believe the officer was intoxicated. The enforcement of this policy in an unconstitutional manner exposes the city to liability. On the other hand, the municipal policy does not endorse entering and searching the residences without consent. The city is not liable for the single act of misconduct of entering the
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officer's house unlawfully. No department policy authorized this intrusion. City's motion for summary judgment granted as to the two officers who were found in public places. Other cases to proceed to trial. [Grow v. City of Milwaukee, Wisconsin, 84 F.Supp.2d 990 (E.D. Wis. 2000)] have him dismissed from the force. The first charge alleged that Valio was dispatched to respond to a man passed out and unresponsive. He responded Code 3, no lights or sirens. However, departmental policy required that a medical emergency be a response Code 1, full lights and sirens. The emergency in question involved a fatal heart attack. Valio arrived at the scene 61/2 minutes after being dispatched. The chief of police subsequently testified that this was an unacceptable response time. The officer claimed that he was dispatched for a "man passed out" not for a "man passed out and unresponsive." The second charge involved a multi vehicle accident that occurred 500 feet outside the city limits. The five-car wreck blocked traffic well into the city limits. Gasoline and other debris were spilled upon the roadway. Numerous deputy sheriffs and paramedics were at the scene when Valio drove by in his police car. He chose not to stop. Valio explained that he did a "rolling assessment", saw no injuries, and concluded that it was an accident involving property damage only. He also asserted that he was under no obligation to stop because the event occurred outside the corporate limits. Department regulations, however, provided that officers who are outside the city limits take reasonable steps regarding matters of direct concern to the city. The chief of police argued that the snarling of traffic back into the city made the incident of direct concern to city officers. The third charge alleged that Valio lied during an investigation regarding his whereabouts during a medical emergency dispatch. When questioned he repeatedly told a supervisor that he was filling his squad car with gasoline at the time he received the medical dispatch. However, a sergeant stated that he saw Valio in the police station shortly before the medical dispatch and records from the computerized fuel pumps showed that the patrol car was not filled until several hours after the incident. The police board heard the testimony and reviewed Valio's prior disciplinary record and found that each event constituted a substantial shortcoming warranting his termination. The former officer appealed. The trial

Sick leave
Seagraves and Daniels began employment at the city in the early 1970's. At that time a municipal ordinance granted compensation to employees upon their retirement for all unused sick days. In 1979, however, the city amended the ordinance to provide that unused sick leave accrued after December 31, 1978, would not be compensated at retirement. When Seagraves and Daniels retired some 15 years later, they were paid for the unused sick leave accrued prior to December 31, 1978. They were not compensated for any sick leave after the date of the new ordinance. The two former employees filed suit arguing that the ordinance change was a breach of contract and they had a vested right in compensation for their unused sick days. Trial court ordered city to pay for the additional sick days. City appeals.

HELD: Seagraves and Daniels contend that their right to be compensated for all unused sick leave vested when they began working under the terms of the original city ordinance. Thus, the city's refusal to pay constitutes a breach of contract. In contract actions, the time of the breach controls individual rights, not the time the actual damage results. The breach of contract, if any, occurred when the city altered the ordinance in 1979. Georgia recognizes a six-year statute of limitations for breaches of contract. Since more than six years have lapsed since the alleged breach, Seagraves' and Daniels' claims are barred by statute of limitation. Reversed for city. [City of East Point v. Seagraves, 524 S.E.2d 755 (Ga. App. 1999)]

Dismissal grounds
The chief of police filed administrative charges against Valio, a 17-year veteran, seeking to
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court reversed the decision to terminate his employment. Police board appeals.

HELD: Court review of an administrative agency's decision regarding discharge is a two step process. First the court must determine whether the agency's finding of guilt is contrary to the manifest weight of the evidence. Second, the court must determine if the findings of fact provide a sufficient basis for the agency's conclusion that there is "cause" for discharge. A reviewing court considers a board's finding of fact to be prima facie true and correct. Likewise, the creditability of witnesses, the weight to be given to testimony and inferences drawn from the evidence are within the province of the board. The board's findings will not be disturbed unless they are against the manifest weight of the evidence. In this case, the single event of lying about his location during the medical dispatch was sufficient grounds to terminate Valio. The department had a rule against lying during an investigation. The evidence clearly showed that Valio did not tell the truth. "Cause" has been defined as "some substantial shortcoming which renders the employee's continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognizes as good cause for his no longer holding the position." The failure of an officer to provide truthful statements during a department investigation could impair the department's ability to properly and fully investigate violations of its regulations. Such a failure could impugn the integrity of the investigation and adversely affect the department's ability to provide efficient service to the community. Based on the record in this case the police board had sufficient cause to justify Valio's discharge. Reversed for police board reinstating termination of officer. [Valio v. Board of Fire and Police Commissioners of the Village of Itasca, 724 N.E.2d 1024 (Ill. App. 2 Dist. 2000)]

 with a dozen disciplinary charges arising out of an allegation that he falsely reported that he had been struck by a hit-and-run vehicle. He was suspended without pay. The borough appointed a hearing officer to hear the charges. The hearing was not completed however until nearly a year later. The hearing officer sustained three of the charges and recommended that Padovano be removed from the police force. Padovano's attorney moved for reconsideration. A supplementary hearing was then held six months later. In apparent recognition that the former officer had never been subject to disciplinary charges, the hearing officer changed his recommendation from dismissal to a 120-day suspension. The borough did not agree with the amended recommendation and filed suit seeking a declaratory judgment that the hearing officer had no authority to reconsider the case after issuing his initial ruling. Trial court ruled in favor of the borough. During the same time frame after service of the charges but prior to the commencement of the proceeding before the hearing officer, Padovano filed a grievance relating to the disciplinary charges. The police union pursued the grievance through its first two stages but then refused to proceed to arbitration. The union assigned any arbitration rights it might have to Padovano to pursue the matter on his own. The grievance was based on the alleged failure of the borough to conduct the disciplinary hearing in a timely fashion. The arbitrator ultimately agreed with Padovano and directed that he be reinstated with back pay. Trial court confirmed the award and ordered the captain be reinstated to the force. Borough appeals.

HELD: The bargaining contract between the police union and the borough provides that either party may institute arbitration proceedings when the grievance procedure has been exhausted. The language of the contract is unambiguous. The power to invoke arbitration rests with the union, not an individual employee. Prior case law holds that such a clause confers no individual right upon an employee to set in motion the machinery of arbitration. The union is charged with the

Right to arbitration
Padovano was a police captain with more than 20 years experience. In 1996 he was served
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responsibility and discretion to determine which grievances warrant invoking that remedy as well as attendant costs. The union must, of course, make decisions fairly and reasonably and, if the union improperly refuses to proceed to arbitration, it may be liable for breaching its duty of fair representation to its member. Here, the union purported to assign its rights to arbitration to Padovano. A contract clause restricting the right to pursue arbitration provides a measure of protection of the employer. Permitting the union to assign the right to proceed to arbitration only serves to undermine the employer's protection. If the union could simply assign its rights to members, it could relieve itself of the hard choices it may confront when fulfilling its duty of fair representation. The result is that the arbitration proceeding was wholly void because the union had no authority to assign its arbitration rights. As to the result of the disciplinary hearing, there is no specific law in New Jersey that prohibits a hearing officer from reopening a hearing after making an initial decision. The hearing officer in this case granted reconsideration before the borough took any official action in the matter and provided ample notice to the borough. Case remanded for further proceedings. [Padovano v. Borough of East Newark, 747 A.2d 303 (N.J. Super. 2000)] investigator asked Piper whether he waived his rights to representation and his rights regarding time limits in rescheduling the interview. Piper refused to waive the rights. The investigator nonetheless proceeded to give Piper a Garrity warning advising him that he must answer questions or be subject to disciplinary action. At that point Piper was given a direct order to participate in the interview. He declined to participate in the absence of his attorney. As a result the investigator immediately relieved him of duty. Ultimately, Piper received a five-day suspension for insubordination. The Civil Service Board overturned the suspension holding that under Ohio statute Piper was entitled to legal representation at the interview. Trial court affirmed the board's decision but the intermediate appellate court overturned the matter. Police officer appeals.

HELD: The question presented is whether a police officer who is the subject of an internal affairs investigation and is compelled to appear before a superior officer for the purposes of answering questions is entitled to legal representation pursuant to Ohio statute. The Ohio statute in question provides that any person "appearing as a witness" before any public official or department shall be permitted to be represented and advised by an attorney. The intermediate appellate court ruled that Piper did not fit the definition of "witness" within the meaning of the statute because he had not been sworn. That court said that while a person need not be sworn to be a witness, a person must be sworn "to appear" as a witness. This was an official investigation conducted by the department and Piper's attendance at the scheduled videotape walk through was mandatory. The legislature intended that the term "witness," as used in this statute, be construed broadly. Thus, under Ohio law a police officer who is the subject of a police department internal affairs investigation and is compelled to appear before a superior officer for the purpose of answering questions during the course of the investigation is "appearing as a witness" and shall be permitted to be accompanied by an attorney. Reversed for

Right to counsel
Piper was a 15-year veteran of the police department who was charged with public indecency, a criminal offense. He was found not guilty of the charge but thereafter the department decided to investigate whether his conduct had violated department policies. An internal affairs investigator interviewed Piper in the presence of his lawyer. After reviewing the transcript of the interview, the investigator decided to conduct a videotape reenactment of the interview. He sent written notice of this interview to Piper. When Piper learned that his attorney would be unable to attend the interview with such short notice, he asked that it be rescheduled. The investigator refused to reschedule the interview and Piper appeared as ordered. The
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officer. [In the matter of Piper, 725 N.E.2d 659 (Ohio 2000)] to the individuals in the gay bar. His taunting of members of the public as well as his abusing a prisoner discredits him. The laws he broke while off duty were the same laws he swore to enforce while on duty. Police officers are expected to uphold high standards of conduct. Officers, whether on or off duty, live under public view. Could anyone reasonably trust that an officer who harasses minorities by night would ungrudgingly protect their lives and property by day? Green's conduct was particularly troublesome in that it took place in the very area of town that he patrolled as an officer. Conduct unbecoming a police officer undermines the rightful expectation of the public to a professional police force. Police are duty bound to enforce the law evenly, without bias or without favor. If intolerance and aggression are accepted, that attitude may permeate other aspects of the justice system. The board had just cause in terminating him. [Green v. City of Sioux Falls, 607 N.W.2d 43 (S.D. 2000)]

Dismissal grounds
Green, a three-year veteran police officer, was terminated from his position based upon two separate incidents. In the first incident, Green aided in subduing a resisting forgery suspect at the jail. Green used what was subsequently deemed to be overly aggressive force to subdue the prisoner by putting a knee on the back of his neck and sitting on him. He received a written reprimand for this event. Two days after the incident in the jail, Green was escorting visiting police officers who were in town for a drug enforcement school. A group of 16 officers decided to go out and explore some of the local bars. Some of the officers ended up at a bar that catered to homosexual members of the community. Green reportedly created a disturbance at the bar including use of disparaging terminology against the owner. The bar owner reported the matter to the department. Following an investigation, the chief of police ordered Green dismissed from the force. The civil service board found just cause for Green's dismissal and that ruling was affirmed by the trial court. Former officer appeals.

HELD: Municipal ordinance provides that officers may be disciplined for acts that constitute conduct unbecoming an officer. "Conduct unbecoming an officer" is not otherwise defined in South Dakota law. The term originates from military law. In its prevailing usage, conduct unbecoming an officer imports a dual significance. Not only must the behavior be a serious breach of law, morality, or decorum, exposing the offender to personal discredit, but also it must tend to bring dishonor of disrepute on the offender's profession or organization. While such misconduct need not be a crime, it must be a serious breach of law, morality or decorum. This standard discourages extreme discipline for entirely private misbehavior unrelated to job performance. In this case, Green exhibited improper behavior by making intolerable remarks
Settlements

Albuquerque, New Mexico

police officers
Albuequerque police offices voted last month to accept the city's third contract offer. Officers adopted a new one-year pact after working for more than two months under an expired agreement. The economics include a 3 percent across-the-board wage hike in addition to the 4 percent step raises that officers gain annually through their first eight years of service. Left undisturbed was the requirement that officers pay 16.3 percent of salary into the pension fund. The parties could not reach agreement on how to reduce the level of contribution. Since the previous pact expired in February, officers and their supporters have picketed city hall and packed council meetings in hopes of garnering support. The bargaining agent is the Albuquerque Police Officers' Association, an affiliate of the Fraternal Order of Police.