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FOP Executive Board endorses Gore for President
Gilbert Gallegos, National President of the Grand Lodge of the Fraternal Order of Police (FOP), announced last month that the group's Executive Board has unanimously endorsed the candidacy of Vice President Al Gore for President. The endorsement will be forwarded to the National Board of Trustees for a final vote in September.

"An objective review of the candidates' responses, follow-up interviews and analysis of their records clearly demonstrate that the election of Vice President Gore would best serve to further the legislative goals of the Fraternal Order of Police," Gallegos said. "The FOP prides itself on its nonpartisan character. We will work with members of both parties _ Republican and Democrat _ on an issue-by-issue basis. That being said, we must make it clear that the FOP will support them only when the legislation or the issues at hand are in the best interests of the membership of the Fraternal Order of Police."

"Vice President Gore is committed to support and sign legislation concerning the concealed carry authority for active and retired law enforcement officers, collective bargaining and due process rights for law enforcement officers. This distinguished him from the other candidate and makes him the right choice for the National Board's endorsement vote in September," Gallegos added.

The FOP Presidential Screening Committee met with both Vice President Gore and Texas Governor George W. Bush as well as evaluated the candidates' responses to written questionnaires. A two-thirds vote of the national trustees will be necessary for official FOP endorsement.

During the respective interviews the Vice President reportedly expressed his support for officer

 bargaining and due process rights while Bush said such issues were best left to state and local authorities. The Texas Governor did assert his belief that the federal government should not operate as an internal affairs division for local police departments, an apparent reference to federal litigation alleging patterns of police misconduct in Pittsburgh, Los Angeles, Columbus, Ohio, and several other agencies. Gore told the committee that he preferred balancing the interests of the community, police officers, police management, and the Justice Department to reach a settlement.

Ironically, the Columbus lodge of the FOP has actively joined with the city in fighting the federal suit filed against its police department. Local FOP efforts include raising money to fund the defense of the suit. 

The FOP and other police unions first became overtly active in presidential politics in 1988, when then-FOP National President Dewey Stokes endorsed Republican George Bush, as did many state lodges. Police unions affiliated with the AFL-CIO lined-up behind Michael Dukakis, the Democrat. In 1992, the International Union of Police Associations, AFL-CIO, and the Executive Board of the National Association of Police Organizations (NAPO) endorsed then-Governor Bill Clinton. The FOP leadership stuck with President Bush. For the 1996 election, all of the national police labor groups endorsed President Clinton. 

While political candidates wishing to establish a law-and-order image covet the blessing of police groups, no study has ever been reported that establishes a link between police union endorsement and increased voter support in a presidential election. 
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Felonious police deaths at three-decade low
Preliminary statistics released last month by the Federal Bureau of Investigation indicate that nationwide there were 42 law enforcement officers feloniously slain in the line of duty in 1999, the lowest recorded figure for more than 35 years. The total shows a decrease of 19 felonious deaths when compared with the 1998 annual count of 61, and 28 fewer deaths than the 1997 figure. 

Surprisingly, more officers were killed accidentally than met death in criminal confrontations. According to the data, 63 officers were accidentally killed in the performance of their duties. This total represents a decrease of 18 when compared with the 81 accidental deaths that occurred in 1998.

During 1999, firearms continued to be the weapon most frequently used in the intentional killing of officers. Twenty-five officers were slain with handguns, eleven with rifles, and five with shotguns. One officer was killed with a vehicle. Twenty-seven officers were wearing body armor at the time of their deaths, and five were slain with their own weapons.

Regionally, twenty officers were slain in the

 South, eleven in the West, six in the Midwest, and five in the Northeast.

Twelve officers lost their lives during arrest situations: six were serving arrest warrants; three were attempting to prevent robberies or apprehend robbery suspects; two were investigating drug-related situations; and one was attempting to prevent a burglary or apprehend a burglary suspect. Eight officers were murdered while enforcing traffic laws, seven while investigating suspicious persons or circumstances, seven while answering disturbance calls, six while encountering ambush situations, and two while handling prisoners.

There were 39 separate incidents in which 42 officers were slain during 1999. Arrest or exceptional means has cleared 38 of these incidents. Two suspects remain at large.

Earlier this year, the National Law Enforcement Officers Memorial Fund (NLEOMF) reported that 130 officers lost their lives in 1999. The NLEOMF uses a broader definition of "law enforcement officer" than does the FBI statistical program. For example, NLEOMF includes corrections personnel.

DOJ sues two agencies for job discrimination
Within the last month the U.S. Department of Justice (DOJ) has sued two law enforcement agencies for unlawful discrimination _ Newark, New Jersey Police Department for religious discrimination and the Mississippi Department of Public Safety for handicap discrimination. 

In Newark, DOJ is alleging that the police department unlawfully discriminates against officers on the basis of their Islamic religion. The complaint alleges that the city refused to allow Kevin Rhodes, Anthony Kerr, and similarly-situated police officers to wear beards in compliance with their religious observance, practice, and belief as Muslims. The officers were allegedly threatened with termination if they refused to shave. DOJ also claims that officers who refuse to shave are denied overtime

 opportunities and are transferred to undesirable posts.

Last year, two other Muslim officers obtained an injunction against the department from enforcing the no-beard rule. This court order, initially based on First Amendment claims, was ultimately upheld under the Americans with Disabilities Act (ADA) because the officers suffer from pseudofolliculitis barbae, a skin condition aggravated by shaving. The current litigation is predicated on a claim of religious discrimination. 

A former state trooper cadet is the object of the Mississippi suit. DOJ alleges that the agency failed to accommodate Ron Collins, an insulin-dependent diabetic, while in the highway patrol training academy. Collins, who has worked in law
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enforcement for more than 20 years, had successfully completed three other law enforcement academies. In addition to using insulin, Collins regulates his diabetes through exercise and by timing and adjusting his food intake.

After being accepted into the state training academy, the training staff allegedly refused Collins' requests for simple accommodations. For example, on the first night Collins was denied access to a snack machine. The following day he was denied a request

 for additional food in the cafeteria. On the third day, Collins suffered a hypoglycemic episode. When he appeared disoriented and unresponsive, academy staff allegedly told him to remove himself from the premises. 

DOJ alleges that the incident violates the ADA which requires state and local governments to grant reasonable accommodations when a person with a disability so requests. The suit seeks reinstatement and back pay for Collins. 

Congressional committee holds hearing on bargaining bill
Each session of Congress for over a decade has seen a national public safety bargaining bill introduced, but the proposals have never received serious consideration. Things were different last month when for the first time ever the House Subcommittee on Employer-Employee Relations held a hearing on such a bill, H.R.1093.

The hearing represents a major victory for public safety unions. Collective bargaining for police officers has been a cornerstone of the legislative effort by virtually all police unions. 

Representative John Boehner (R.-Ohio), the committee chairman, opened the hearing by stating that he personally had serious concerns about the desirability of the legislation but had granted the hearing out of respect for the work of police officers and fire fighters. 

Testifying in favor of the bill was Gilbert Gallegos, President of the Grand Lodge of the Fraternal Order of Police. Kenneth Lyons, President of the International Brotherhood of Police Officers, filed written testimony as did Robert Scully, Executive Director of the National Association of Police Organizations. A representative of the International Association of Fire Fighters, AFL-CIO, also spoke in support of the measure. 

Presenting evidence in opposition were Gene Kinsey, Mayor of Grand Junction, Colorado, and Chicago labor lawyer Theodore Clark who testified on behalf of the National Public Employer Labor Relations Association.

 H.R.1093, which a coalition of public safety unions helped draft, would impose minimum bargaining rights for public safety employees in states that do not currently permit bargaining. The Federal Labor Relations Authority would be responsible for monitoring state laws to ensure compliance with the federal standards. Under the proposal, public entities would have to bargain with fire and police unions and enter into a labor contract. However, in a compromise effort to gain broader support for the bill, strikes are banned and fact-finding and mediation, not binding arbitration, are the remedies for any impasse in negotiations.

The opponents of the bill argued that the proposal constituted an unconstitutional infringement on state sovereignty and would place an unreasonable financial burden on local governments.

The proposed law has the bipartisan support of 243 cosponsors in the House of Representatives, more than a majority of the members. Only 17 sponsors have signed on in the Senate, clouding the bill's prospects for the foreseeable future. However, the Senate Committee on Health, Education, Labor and Pensions reportedly will hold its hearing on the proposal later this summer.

Currently, only North Carolina and Virginia expressly prohibit public entities from bargaining with their employees. About two dozen states have comprehensive public sector bargaining laws. Virtually all states prohibit strikes.
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Fort Worth officer pleads guilty to housing fraud
In 1997, to enhance community-oriented policing efforts, the U.S. Department of Housing and Urban Development (HUD) created the "Officer Next Door" program whereby police officers could purchase HUD reclaimed homes at a fraction of their value. The eligible homes are often located in economically depressed neighborhoods. Last month, a Fort Worth, Texas, police officer admitted using the program to defraud the government.

David R. Auther, 38, pleaded guilty to federal fraud charges for breaking the terms of his agreement with HUD. In 1998, Auther bought a $116,000 house in suburban Arlington for $58,000, with the federal government picking up the other

 half. Under the terms of his agreement with HUD, Auther was to use the house as his primary residence for three years. Instead, he rented out the property six months later for three times his mortgage payment. During the same period, he began construction of a home in another suburb.

Auther faces a five-year prison term and a $250,000 fine. Sentencing is set for September. His spouse, Muriel Brooks Auther, 33, who was also charged, has not entered a plea.

A ten-year veteran of the Fort Worth Police Department, Auther resigned last month. He had previously worked as a police officer in southern California.
Litigation

Supreme Court update

Cases of interest
Recently filed cases of interest include Buckley v. City of Portage, Michigan, No. 99-1743, wherein a lower court granted qualified immunity from suit to police officials who suspended Buckley for 20 days after he published a newsletter critical of a variety of department actions. Lower court found that he was speaking as an officer, not as a citizen, on matters of private concern. Thus, the Pickering balancing test of First Amendment protection came down on the side of the police officials. 

Also seeking review is Delaware River Port Authority v. Fraternal Order of Police, Penn-Jersey Lodge 30, No. 99-1758, wherein a New Jersey court ruled that the bi-state agency was subject to New Jersey labor law and must submit to interest arbitration after reaching impasse with its police officers' union. The authority argues that despite the existence of police officer bargaining rights in New Jersey and Pennsylvania, no labor board has jurisdiction over its negotiations with its 78 officers and their union.

Handicap discrimination
Holiday was employed as a state capitol police officer. He previously had served as a police officer in several other jurisdictions. In 1993, he applied to the City of Chattanooga for employment as an officer. He passed the written exam and also the physical agility test. Following an interview he was granted a conditional offer of employment subject to successful completion of a statutorily required physical and psychological examination. Holiday was subsequently examined by the city's contract physician. During the examination Holiday voluntarily informed the doctor that he was infected with Human Immunodeficiency Virus (HIV), the virus that causes Acquired Immunodeficiency Syndrome (AIDS). At the conclusion of the examination the doctor told Holiday that he had passed. However, the doctor's office subsequently informed the city that Holiday had failed the examination because he was HIV- positive and suffered from AIDS-related health problems. In
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completing the medical form the physician answered no to the question of whether Holiday was physically fit to perform the strenuous activities necessary for police work. The city subsequently declined to hire Holiday. Holiday filed suit alleging that the city had violated the Americans with Disabilities Act (ADA) by refusing to hire him due to his HIV positive status. Trial court granted summary judgment for city on the grounds that Holiday was not otherwise qualified for the job because he failed the state required medical examination. The job applicant appeals.

HELD: The ADA protects job applicants from discrimination based on their disabilities. The ADA covers individuals who have a disability and who are otherwise qualified to perform the essential elements of the job. The city concedes that an HIV-positive individual, such as Holiday, has a statutorily defined disability but maintains that he cannot fulfill the essential requirements of the position because he failed the medical exam mandated by state law. The principle behind the ADA is that persons with disabilities ought to be judged on the basis of their abilities. They should not be judged nor discriminated against based on unfounded fear, prejudice, ignorance, or mythologies. The ADA mandates an individualized inquiry in determining whether an employee's disability disqualifies him from a particular position. In order to properly evaluate a job applicant on the basis of personal characteristics, the employer must conduct an individualized inquiry into the individual's actual medical condition and the impact the condition might have on the individual's ability to perform the job. Here, the city apparently rejected Holiday's application without considering whether he, as an individual, could perform as a police officer. In fact, he had passed the city's physical agility test. He was also serving as a police officer for another agency at the time of his application. Given this information, a jury could reasonably find that Holiday had been discriminated against because of his disability, not because he was unable to perform the essential functions of the position of police

 officer. When he applied for the position of police officer with the city, Holiday was entitled to be evaluated based on his actual abilities and the relevant medical evidence and to be protected from discrimination founded on fear, ignorance or misconception. Trial court erred by granting summary judgement for the city. Reversed for police applicant. [Holiday v. City of Chattanooga, Tennessee, 206 F.3d 637 (6th Cir. 2000)]

Dismissal grounds
DiRuzza was a deputy sheriff assigned primarily to jail duties. She had served in that position for three years. During the 1994 election, DiRuzza publicly supported the incumbent sheriff, even appearing in a televised political advertisement on his behalf. The sheriff, however, was defeated by Heard. Prior to Heard assuming office, DiRuzza was involved in an incident in which she discharged her service revolver during a domestic dispute with her fiancée. As a result of the incident, the incumbent sheriff suspended DiRuzza for 30 days. She was charged with a felony offense. After Heard took office DiRuzza was allowed to plead guilty to disturbing the peace, but only on the condition that she resign as a deputy sheriff. She did so. A few months later she filed suit against Heard and the county claiming that she was retaliated against because she had supported the incumbent sheriff in the election. She claimed she was forced to accept resignation under threat of a felony charge. Trial court granted summary judgment for the sheriff and county on the grounds that deputy sheriffs' in California are policymakers and thus may be fired for political reasons. Former deputy appeals.

HELD: Prior case law holds that government officials may not discharge public employees for refusing to support a political party or its candidates, unless political affiliation is a reasonably appropriate requirement for the job in question. The Supreme Court has repeatedly held that public employees are protected from retaliation for exercising their First Amendment rights except in the most compelling circumstances. The Court,
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however, has recognized that in some instances patronage dismissals are not unconstitutional. Patronage dismissals are lawful when policymaking personnel are involved. Under California law, a county sheriff may appoint "deputies." This term includes higher level deputies as well as line peace officers and jail custodians. Thus, the title "deputy sheriff" is not a job category, rather a title that could encompass a varying range of duties. The Supreme Court has held that when considering whether an individual is a policymaker, duties, not job title, must be examined. The factors to consider in determining whether political affiliation is an appropriate job requirement include whether the employee has vague or broad responsibilities, their relative pay, their technical competence, their power to control others, their authority to speak in the name of policymakers, the public's perception, their influence on programs, their contact with elected officials, and their responsiveness to partisan politics and political leaders. In this case, the sheriff's department employs 78 deputy sheriffs, all of whom are covered by a labor contract. The record is unclear as to whether DiRuzza's actual job responsibilities classify her as a policymaker subject to partisan dismissal. Trial court erred in granting a summary judgment, as this matter needs to be further refined at trial. The sheriff additionally argues that even if DiRuzza were protected against retaliation, he is entitled to qualified immunity from damages. Prior case law holds that government officials who perform discretionary functions are entitled to qualified immunity insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The law was clearly established at the time that the defendants acted that deputy sheriffs were not per se policymakers in California. It was clearly established as a matter of law that actual duties performed by deputy sheriffs determined whether they were policymakers and thereby subject to partisan dismissal. Given that the law was clearly established that deputy sheriffs were not automatically subject to partisan political retaliation, the sheriff is not entitled to qualified immunity on this issue. Reversed and remanded for further proceedings. [DiRuzza v. County of Tehama, California, 206 F.3d 1304 (9th Cir. 2000)]

Handicap discrimination
Rehling, a Chicago police officer, was struck by an automobile. As a consequence his left leg was amputated. Following a yearlong medical leave Rehling submitted a request to return to work on limited duty status. He specifically requested to work in the police district to which he had been assigned prior to his accident. Although Rehling was cleared to return to restricted duty, he was unable to perform the functions of an officer in a patrol car. He reported for work at his old district and was assigned to assist with processing citations. This position, however, was a civilian slot and under the labor agreement could not be filled by a police officer. Rehling was then informed that he could not work in his old district because they had no other desk assignments. After much discussion among police executives Rehling was offered two possible assignments, one working the midnight shift at the airport and the other with the alternative response unit whose members took incoming reports and determined whether it was necessary to dispatch a car to the scene. Rehling rejected the airport assignment because of lack of public transportation to accommodate his travel to work. He was then assigned to the alternative response unit. Here again, Rehling believed that transportation to that assignment would be unreliable. Instead of reporting to work he applied for a disability pension. The officer subsequently filed suit against the city alleging a violation of the Americans with Disabilities Act (ADA) for not allowing him to work as the citation clerk in his old district and by the city failing to provide him a reasonable accommodation. Trial court granted summary judgment on the reasonable accommodation claim and a jury ultimately returned a verdict for the city on the disability discrimination claim. Former officer appeals.
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HELD: Rehling concedes that he was not able to return to work as a patrol officer but argues that the ADA may require an employer to reassign a disabled employee to a different position as a reasonable accommodation. That is correct; however, the duty to reassign a disabled employee has limits. The employer need only transfer the employee to a position for which the employee is otherwise qualified. In this case, Rehling requested an accommodation and he was offered a choice between a position at the airport and a position in the alternative response unit. Rehling suggests that these accommodations should be rendered unreasonable if he could show the availability of a position in his old district. It is a well established law that an employer is obligated to provide a qualified employee with a reasonable accommodation, not the accommodation he would prefer. An employee who requests a transfer cannot dictate the employer's choice of alternative positions. If Rehling were able to show the availability of a position in his old district, then an issue of fact would be raised as to whether he had been adequately accommodated. Rehling has failed to demonstrate that there was an available position in the old district. The labor agreement provides that the citation position is to be filled by civilian employees only. An employer is not required to violate the provisions of a collective bargaining agreement to reassign a disabled employee pursuant to the ADA. The city showed there were no non-civilian desk positions in Rehling's old district when he returned to work. Thus, summary judgment for city on the reasonable accommodation claim was appropriate. Affirmed for city. [Rehling v. City of Chicago, Illinois, 207 F.3d 1009 (7th Cir. 2000)] officers what to do and were responsible for disciplining lower ranking officers. They performed yearly evaluations of the sergeants under their supervision and approved the patrol officer evaluations conducted by the sergeants. The lieutenants were not routinely dispatched to calls but did monitor the radio to keep tabs on their officers. In the case of a major crime or serious traffic accident a lieutenant would usually go to the scene to assist and supervise where necessary. At the end of each shift the lieutenants would summarize the events of the shift and prepare various daily reports. The lieutenant assigned to special operations planned and coordinated and supervised SWAT procedures and other special events. He was primarily responsible for manpower deployment and oversight of those operations themselves. He oversaw the community substations located throughout the city and worked alongside other officers during drug raids and traffic checkpoints. He managed the budget for the unit and evaluated the sergeants under his command. The lieutenants were essentially responsible for the law enforcement functions in the department and answered not only for their own actions but also for the actions of their subordinates. The four lieutenants subsequently filed suit against the city seeking overtime compensation under the federal Fair Labor Standard Act (FLSA). The city moved for summary judgment on the grounds that the lieutenants were exempt employees. 

HELD: The FLSA requires the payment of overtime compensation to individuals who work in excess of 40 hours a week. However, the law excludes from the overtime provision individuals who are bona fide salaried executives or administrative employees. While the FLSA does not define "bona fide executive and administrative employees," Department of Labor (DOL) regulations do seek to provide guidance in this regard. DOL regulations describe an "executive" as an employee whose primary duty is management, who regularly directs the work of two or more employees, who has the authority to effect a change

Overtime
The city employed four lieutenants on the police department. Three of the lieutenants served as watch commanders in the patrol division while one supervised the special operations unit. The patrol lieutenants served as shift commanders, deciding where to allocate patrol units. They told subordinate
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in the employment status of subordinates, and who exercises discretion. These individuals have management as their primary duty. Administrative employees are defined under the regulations as individuals whose primary duties consist of office or non-manual work directly related to management policies, who customarily and regularly exercise discretion and independent judgment, and who execute under only general supervision special assignments and tasks. These individuals perform primarily office work directed to their employer's business. Evidence suggests that the lieutenants in this case fit either the executive or administrative classifications. The fact that they work alongside their subordinates in the field on occasion is not fatal to this conclusion. The regulations are concerned with the primary duty of the employee in question. The primary duty is defined in terms of more than 50 percent of the time. Whether an employee is exempt from the coverage of the FLSA is to be determined by the functions performed, not by the title of the position. The facts in this case reveal that while on duty the lieutenants are in charge of their various functions. They manage and supervise the operations under their command. They evaluate their subordinates, report major occurrences or problems to the captain, delegate tasks, and exercise discretion disciplining their men. They spend very little time performing basic police work, such as making arrests or issuing citations. They are regularly evaluated on their supervisory and managerial capabilities, a fact that indicates their primary value to the city is as a supervisor rather than as an ordinary police officer. Based upon the evidence and the appropriate case law, the lieutenants must be deemed to be exempt from the overtime provisions of the FLSA. Motion for summary judgment granted to city. [Anderson v. City of Cleveland, Tennessee, 90 F. Supp.2d 906 (E.D. Tenn. 2000)] Police Department agreed to perform additional patrol duties around certain public housing complexes located within the city limits and managed by the Kansas City Housing Authority. Each officer participating in the housing authority patrol assignment was required to wear his departmental uniform, drive marked department vehicles, maintain contact with the department dispatcher, and observe the rules of the police department. These hours of patrol were not combined for overtime purposes with those spent performing ordinary police duties. The officers were compensated at their regular rates of pay for providing the security in the areas maintained by the housing authority. They were paid directly by the housing authority for their services. Subsequently, a group of the officers filed suit against the city claiming they were due overtime wages because of their extra work for the housing authority. City moves for summary judgment.

HELD: Under the federal Fair Labor Standards Act (FLSA) employers are required to pay to police officers overtime compensation at a rate of one and one-half times the regular hourly wage for hours worked in excess of 43 per week. Congress has established several exemptions to the FLSA's mandatory overtime compensation requirement. One of these is the so-called "special detail work" exemption. To qualify for the "special detail work" exemption, Department of Labor (DOL) regulations create a two-prong test to determine whether hours worked for another entity can be combined with the hours accrued working for the primary employer. The test requires that the special detail assignment be undertaken and performed solely at the employee's option and that the two employers must be in fact separate and independent. If both prongs are satisfied, the exemption applies, and the hours worked for the two employees need not be combined for assessing the amount of overtime compensation to which the employee is entitled. Here, the parties agree that their primary employer, the police department, does not order or direct the officers to participate in the

Overtime
At some point after October, 1966, uniformed members of the Kansas City, Kansas
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housing authority patrol program. Thus, that work is undertaken solely at the employee's option. The question then becomes whether the police department and the housing authority are separate and independent employers of the officers. DOL regulations provide no guidance in making this determination. However, the DOL has issued opinion letters that suggest the factors to be considered in whether two or more agencies of government are separate employers are: (1) are the agencies treated as separate employers from other state agencies for payroll purposes; (2) do the agencies deal with other agencies at arms length concerning the employment of an individual; (3) do the agencies have separate budgets; (4) do the agencies participate in separate employee retirement systems; (5) are the agencies independent entities with full authority to perform all acts necessary to their functions; and (6) can the agencies sue and be sued in their own names. State law empowers Kansas's municipalities to create housing authorities. The empowering statute authorizes the municipality to delegate any or all of its powers to this authority. The authority also may be sued or may bring suits. While the housing authority in this case has many attributes that would require it to be considered a separate and independent employer there is no evidence in the record as to whether the city exercises control over the housing authority's budget and financial operations. Such evidence is necessary to determine whether the housing authority and the city are separate and independent for the purposes of the FLSA. Since this evidence is lacking, granting of summary judgment in this case would be inappropriate at this time. Motion for summary judgment by city denied. Matter to continue. [Barajas v. Unified Government of Wyandotte County/Kansas City, Kansas, 87 F. Supp.2d 1201 (D. Kan. 2000)] amendment established a system of binding arbitration to resolve impasses in negotiations. Under the binding arbitration system the city council was to create a panel of at least three arbitrators. Council was allowed to add arbitrators to the permanent panel at any time and could remove arbitrators at any time, with the exception of an arbitrator who was selected to hear a dispute could not be removed until after issuing a decision. In the case of impasse in negotiations the police union and the city engaged in an alternating strike process whereby each party alternately eliminated one name from the list of the permanent panel of arbitrators until one or two names remained. If one named remained, that person was the arbitrator for the dispute. If two names remained, the mayor selected one of the two persons to be the arbitrator. A flip of the coin determined which party struck first. The arbitrator was then required to choose the final best offer of either the city or the union on each issue in dispute. In arriving at a decision the arbitrator was required to consider seven specified factors and to issue a written decision. There was limited judicial review of the award. After the voters passed the charter amendment the city filed suit seeking a declaratory judgment on the validity of the binding arbitration provision. Trial court ruled that the binding arbitration provisions violated the Colorado Constitution and were unenforceable. The remaining portion of the charter amendment was found to be lawful. The Fraternal Order of Police on behalf of its members appeals. 

HELD: The city contends that the binding interest arbitration provision of the charter amendment constitutes an unlawful delegation of legislative power in violation of the Colorado Constitution. The Colorado Constitution mandates that every person having authority to exercise a governmental power must either be an elective officer or be appointed or designated in accordance with law by an elective officer. This ensures political accountability for all governmental decisions. Several prior cases have struck down interest arbitration provisions wherein the American

Right to arbitration
In 1998, the voters of Commerce City approved an amendment to the city charter granting collective bargaining to police officers. The charter
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Arbitration Association, an independent organization with no political accountability, devised the list of arbitrators. This case, however, is different. Here, the city council creates a permanent panel of arbitrators, has the authority to add names to the list and to remove individuals from the list. This procedure provides for the necessary political accountability required by the state constitution. The arbitrators are directly accountable to the elected officials of the city and the city council has exclusive control over which arbitrators may hear a case. State law also requires that a delegation of legislative power contain sufficient standards or safeguards to protect against unnecessary and uncontrolled exercises of discretionary power. Once again, the charter amendment provides sufficient standards. The charter amendment requires the arbitrator to consider seven factors when issuing a decision: (1) the interest and welfare of the public and the financial ability of the city; (2) the lawful authority of the city; (3) stipulations of the parties; (4) comparison of the compensation, benefits, hours, and terms and conditions of employment of members of the department with other police departments; (5) the cost of living; (6) any claims of failure of a party to bargain in good faith; and (7) other similar standards recognized in the resolution of interest disputes. By requiring the arbitrator to consider this comprehensive list of factors, the charter amendment provides the necessary standards required for the exercise of legislative power. Thus, the binding arbitration provisions of the charter amendment are constitutional and enforceable. Reversed for FOP. [Fraternal Order of Police, Colorado Lodge No. 19 v. City of Commerce City, 996 P.2d 133 (Colo. 2000)] later revealed it was actually his third marriage. Two months after the Nevada marriage Nystrom filed for divorce from his previous wife. On his health insurance membership and record change form filed at the sheriff's department he indicated that his Nevada marriage was in fact the day after his divorce became final, a misstatement of some ten months. Nystrom signed the form certifying that the information was correct. In 1996, a rumor began circulating that Nystrom had been married to two women for a period of time. The sheriff phoned a contact in Las Vegas and verified the truth of the rumor. Upon receipt of written confirmation in 1996, the sheriff informed the prosecuting attorney. During the election campaign of that year - in which the sheriff, Nystrom, and one other individual were candidates - the media spread word of the alleged polygamy. The sheriff won reelection. The following month he charged Nystrom with violating certain sections of the sheriff department's rules and regulations based on the polygamy. Subsequently, Nystrom was discharged for violating various sections of the department manual, specifically violating state law and making false statements on official documents. Following his discharge Nystrom pursued a grievance under the collective bargaining agreement. After exhausting the grievance procedure, the matter went to arbitration. The arbitrator found Nystrom's dismissal to have been wrongful and awarded him reinstatement with back pay and benefits. The sheriff filed suit seeking to have the arbitration award overturned. Trial court vacated the award on the grounds that the arbitrator had exceeded his authority and former deputy appeals.

HELD: Under the collective bargaining agreement the arbitrator was to determine whether Nystrom was discharged for just cause. The contract further provided that the arbitrator had no authority to alter or modify the contract. The arbitrator, in fact, found that Nystrom had committed polygamy and provided false statements on official documents. However, he ruled that the employer could not use its rules and regulations to discharge Nystrom some

Arbitrator's authority
In 1984, Nystrom began employment as a deputy sheriff. At the time he was married. Subsequently, in 1987, while separated but not divorced Nystrom married another woman in Las Vegas. The Nevada marriage license indicated that Nystrom's marriage was his first although evidence
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six years after the discontinuance of the bigamy. The arbitrator found that the conduct unbecoming an officer had been corrected some years earlier. He ordered Nystrom reinstated. Under Michigan law, labor arbitration is a product of contract and an arbitrator's authority to resolve a dispute arising out of the interpretation of a collective bargaining agreement is derived exclusively from the contract. It is well settled that a court may not review an arbitrator's factual findings or decision on the merits. Rather, a court may only decide whether the arbitrator's award draws its essence from the contract. An arbitrator who refuses to recognize the terms and conditions expressly creating his jurisdiction exceeds the limits upon which the submission is based and, therefore, exceeds the consensual authority bestowed upon him. An arbitrator is confined to interpretation and application of the collective bargaining agreement. He does not sit to dispense his own brand of industrial justice. When an arbitrator's words manifest an infidelity to this obligation, the courts have no choice but to refuse the enforcement of the award. Here, it is abundantly clear that the arbitrator sympathized with Nystrom and felt that a strict application of the rules and regulations and provisions of the labor contract produced an unjust result. But to impose his version of fairness the arbitrator exceeded the clear language of the collective bargaining agreement. The clear language of the contract unequivocally states that the deputy shall be discharged as a result of false statements in official documents. The arbitrator cannot escape this contractual language. Likewise the arbitrator found a violation of the law. The fact that Nystrom could not be prosecuted because of expiration of the statute of limitations was no basis for the arbitrator to ignore the violation. The time limitation of the criminal code has no relevance to the rules set forth in the labor agreement. Trial court properly vacated the arbitrator's award. Dismissal of deputy affirmed. [Sheriff of Lenawee County v. Police Officers Labor Council, 607 N.W.2d 742 (Mich. App. 1999)]

Disciplinary procedures
In 1991, Balcerzak and another officer responded to a citizen complaint. Upon arriving at the location the officers encountered the now infamous serial killer Jeffery Dahlmer and another individual. After conducting a brief investigation the officers released the individual, who was a minor, into Dahlmer's care. Dahlmer murdered the individual shortly thereafter. When the officer's decision to release the individual to Dahlmer became public, the chief of police dismissed the officers from the police force for violating various department rules during their investigation. Both officers appealed their dismissals to the board of fire and police commissioners, which upheld the discharges. The officers subsequently appealed the decisions to a trial court which found that discharging the officers was unreasonable and remanded the matter to the police board, suggesting a suspension not to exceed 60 days. The police board ultimately suspended both officers for a period of 60 consecutive workdays in accordance with its longstanding practice of calculating suspensions on working days. The officers appealed the suspension claiming that the term should have been for 60 calendar days. Trial court agreed. As a result Balcerzak's suspension was ordered changed to 60 calendar days. Police board appeals.

HELD: The Wisconsin statute applicable in this case provides that the police chief may suspend an officer for more than 30 days only for cause and only after a trial conducted before the police board. Another statute gives the police board authority to permanently discharge the officer or suspend the officer "without pay for a period not exceeding 60 days or reduced in rank." In this case the police board contends the language is ambiguous because to give effect to the language "without pay" requires the suspension be applied to the officer's working days, while the words "not to exceed 60 days" suggests that the suspension be applied to calendar days. On its face the statute in question appears to be ambiguous. If a statute is ambiguous,
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the court turns to the statute's purpose, context, scope and history to ascertain the intent of the legislature. A review of the legislative history provides little guidance in resolving the ambiguity. But, the police board has consistently interpreted the statute to require all suspensions to apply to an officer's working days. This approach has been followed since 1976. The record reveals that this method was adopted because of concerns that to do otherwise might lead to inconsistent suspensions and due to fears that applying calendar day suspensions might violate the Fair Labor Standards Act. For over 20 years this policy has remained unchanged and unchallenged. Ultimately the flaws of applying suspensions to calendar days are readily apparent by simple example. If two officers who engage in identical misconduct are suspended for five days and the calendar day approach is used, their suspensions could well result in unequal treatment as one may be working less days during the five calendar days and lose less pay. In order to equalize the suspensions, the officer with fewer working days during the suspension would have to be suspended for longer than five days. Thus, this hypothetical application of the calendar day suspension would produce uneven results. Inasmuch as these inequalities can be avoided by using workday suspensions, the court concludes that it is logical in interpreting the statutory language in question to suspend officers on workdays. The police board's use of working days to calculate suspensions is the most logical interpretation. Trial court reversed and officer ordered suspended for 60 working days. [Balcerzak v. Board of Fire and Police Commissioners for the City of Milwaukee, 608 N.W.2d 382 (Wis. Ct. App. 2000)] officers in Bedminster Township have a new two-year contract extension granting a four percent wage hike annually. In addition, tuition reimbursement goes from $1,000 to $2,000. Education incentive pay increases to 1.5 percent for an associate's degree and three percent for a bachelor's degree. Maximum pay for patrol officer goes to $49,297 in 2001 and $51,268 in 2002. The contract covers a patrol officer, a master patrol officer, a corporal, and a sergeant. The chief operates under a separate contract. 

Memphis, Tennessee

police officers
Officers in Memphis will receive a 3 percent wage hike next fiscal year under a tentative plan. The boost, recommended by a City Council subcommittee last month, annually will provide about $1,152 to patrol officers and $1,296 to sergeants. The Memphis Police Association had attempted to negotiate a higher adjustment for sergeants and veteran patrol officers but the city resisted due to its fiscal condition. When bargaining reached an impasse, the matter went to the council subcommittee which had to choose between the city's or the union's proposal. It chose the former. The matter now moves to the full council. 

Pocatello, Idaho

police officers
Pocatello City Council has unanimously approved its first-ever police labor contract. City officials became amenable to the agreement in order to discourage officers from leaving the force. Under the agreement, which runs from October 1, 2000, to September 30, 2003, wage incentives are provided for long-term employees. Additionally, bilingual officers will receive a pay supplement. Supplementing the contract is police department efforts to provide new radios and weapons for each officer before the end of the year. About 75 officers are covered by the pact. They were assisted by the International Association of Machinists. 
Settlements

Bedminster, Pennsylvania

police officers
The department may be small but the officers nonetheless have a labor agreement. The four