PLM February 2001




		*February 2001* *Volume 19, Number 9*


*FOP sues DOJ over pattern and practice suits*
In a surprise move, the Grand Lodge of the Fraternal Order of Police (FOP) has filed suit against the U.S. Department of Justice (DOJ) claiming that the use of consent decrees to oversee municipal police departments is unconstitutional. The lawsuit, filed in U.S. District Court in the District of Columbia on January 26, seeks to stop use of a 1994 statute that authorizes the DOJ to sue state and local police departments when there is pattern or practice of unconstitutional behavior. FOP officials said the organization was not concerned that police departments are being investigated, but rather how DOJ viewed suspected police misconduct. Jim Pasco, Executive Director of the FOP Legislative Office, told the Washington Times, "Our concern and a growing one over the last several years has been that an element within the Justice Department has viewed police misconduct as a huge problem with the United States and set about to prove it - evidence to the contrary notwithstanding." Pasco charged that the investigations generally found that rank-and-file officers acted properly but that DOJ was using occasional exceptions as a basis for threatening municipalities with lawsuits. To date, DOJ suits against the New Jersey State Police, Pittsburgh, and Steubenville and Columbus, Ohio, have resulted in negotiated consent decrees. Local lodges of the FOP represent officers in the latter three communities. Capital City Lodge 9 in Columbus has vigorously opposed the DOJ consent decree. The court-approved agreements normally mandate procedural changes, supplemental record-keeping, additional training of officers, and an independent monitor to oversee department compliance. A consent decree is pending in Los	Angeles while DOJ is reportedly investigating another half dozen police agencies, including New York City, New Orleans, and the District of Columbia. Gilbert Gallegos, FOP National President, called DOJ's enforcement strategy "unconstitutional, plain and simple." "It strips the local department of the ability to set rules regarding police training, policy, and discipline." Columbus FOP officials agree with the lawsuit's allegations but worry about its impact on their case if the Grand Lodge's effort is unsuccessful. Bill Capretta, president of the Columbus FOP lodge, said, "We want consent decrees to go away, for sure. We have some concerns whether or not they should do this now. We're not sure how it's going to affect our case here." During the recent Presidential campaign George W. Bush questioned the appropriateness of federal intervention into the operation of local police agencies. The FOP suit also challenges the DOJ practice of excluding local law enforcement officers from participation in crafting the consent decree. DOJ officials have not commented on the suit, saying an appropriate response will be filed in court. Meanwhile, a Los Angeles federal judge rejected efforts by a coalition of civil rights activists to intervene in the proposed consent decree. A bid by the American Civil Liberties Union (ACLU) of Southern California to provide input in the decree was turned back when Judge Gary A. Feess ruled that private groups and individuals have no right to intervene in these type of suits. The judge did say that he intended to assign the ACLU and the local police union, the Los Angeles Police Protective League, an advisory role as a friend of the court.




	*February 2001*		*Volume 19, Number 9*


	*Utah passes legislation barring PAC check-off*

		The Utah Legislature on February 15 sent to the state's governor a bill that bars public and private employers from serving as a collection point for an employee's contribution to political action committees (PAC). In addition, the bill requires unions to keep separate dues and political activity funds. Political-based solicitations must be made in written form. The bill, named the "Voluntary Contributions Act," deems it a criminal act for a labor organization to coerce political contributions or to solicit contributions from anyone other than its members or their families. The proposal, which awaits the signature of Governor Mike Leavitt, a Republican, does require an employer to collect union dues upon written request of an employee. If enacted into law as expected, the new statute would directly affect police officers, fire fighters, and public school personnel and their respective labor organizations. Critics of the bill claim it holds public employees to a different standard than the private sector, while supporters insist they are simply trying	to get the government out of the role of collecting political contributions. Michael McCoy, General Counsel for the Utah Education Association, labeled the bill "a civil rights attorney's dream," asserting that it violated both the state and federal constitutions. Even the legislature's legal staff recognizes the potential constitutional problems. In a legislative review note the Office of Legislative Research and General Counsel observed that the bill was subject to challenge on First Amendment and equal protection grounds. The legal advisor noted, however, that in 1998 a federal appeals court upheld portions of a similar Ohio law. Public employee unions have denied they pressure members to make payroll deductions to PAC. A teacher's union spokesman said only 40 percent of its members make such contributions, averaging about 75 cents per month. Voluntary donations to PAC by public employees would still be permissible under the new law.

*Winnetka police applicants may need voter registration*
The village council in Winnetka, Illinois, is considering requiring police officers, fire fighters, and other municipal job applicants be registered to vote. The proposal being considered by the Chicago suburb is not grounded in notions of good citizenship or patriotism but in practicality. Village officials are considering the move as a means to verify a job seeker's citizenship. Don Derning, a member of the village fire and police commission who proposed the requirement, said, "It's gotten to the point where you need a degree in immigration law to determine whether someone is a citizen or not." Derning noted that illegal aliens seeking jobs is not yet a widespread problem. Village Attorney Katherine Janega told the council that the fire and police board			has trouble obtaining sufficient legal documents to verify that an employee passes federal immigration laws. Proof of citizenship, such as a birth certificate or passport, is required in order to register to vote. If the plan is adopted, Winnetka would apparently be the first municipality in the country to take such a step. A spokesman for the state American Civil Liberties Union (ACLU) told the Chicago Sun-Times that a mandate from the government compelling a person to register to vote is "troubling." Ed Yohnka of the Illinois ACLU suggested that some persons express their political beliefs by purposefully not registering or voting. No date has been set for the village council's consideration of the proposal.




*February 2001*		*Volume 19, Number 9*


*Charleston, West Virginia, facing police and fire layoffs*
	The City of Charleston, West Virginia, can get along just fine, even if the city chooses to lay off 25 police officers and 25 fire fighters, Mayor Jay Goldman said this month. "We've got a lot of police and a lot of firemen," the mayor said as he attempted to balance the city budget. The city budget shortfall is expected to exceed $1 million. Police officers and fire fighters disagreed with the mayor's assessment. About 40 public safety personnel picketed City Hall February 15 in an effort to generate public support to override the proposed furloughs. Carrying signs with slogans such as "Do not call 911. Call the mayor's office," the	demonstrators braved a steady rain accompanied by a stream of horn-honking automobiles. While the fire chief offered suggestions for alternate staffing of the department, Mayor Goldman quoted the police chief as saying the city could be policed satisfactorily with 25 fewer officers. Meanwhile, members of the Fraternal Order of Police met to discuss a possible lawsuit against the city to try and uncover funds they claim the city is not disclosing. Charleston, with a population of about 60,000, employs 177 police officers and 204 fire fighters.
	*Litigation*

	Supreme Court update	corroborating evidence about the suspected trooper's conduct that investigators deemed important. As a result of the investigation, one trooper pled guilty to criminal charges and was forced to resign while another was suspended for 30 days. Diesel's cooperation with the internal affairs investigation apparently became known to other troopers. Diesel subsequently alleged that he was shunned by fellow officers and was "pegged as a rat." A few months later Diesel was temporarily promoted to investigator and assigned as a member of an elite unit protecting the lieutenant governor. This temporary position brought a $10,000 raise and better benefits as well as the right to use an unmarked state police vehicle while off duty. In early 1996, Diesel, who was serving as the driver for the lieutenant governor, dropped her off at her residence and began the drive home. En route, however, he took a 60-mile detour to a restaurant owned by a friend. At the restaurant Diesel apparently consumed wine, although the amount was the subject of some dispute later. He did apparently slip on the floor in the men's room and injured his nose. Bandages were applied to his bleeding nose. Diesel left the restaurant in the early

	Over the last month, the justices opted not to review Matthews v. Howard County, Maryland, No. 00-874. Here, a lower court found that a police applicant would not have been hired even if alleged discrimination had not taken place. Consequently, the case was properly dismissed. The high court inaction leaves that decision in place. One filing of interest is Reese v. State of Michigan, No. 00-1175, wherein the state's standard on color-blindness for law enforcement officers is being challenged. A lower federal court upheld the state's assertion of immunity under the Eleventh Amendment.

	Cases of interest
	Disciplinary grounds

	In 1994, the New York State Police began investigating the possibility that officers in a particular trooper barracks were covering up a hit-and-run accident involving the brother of a trooper. Diesel, a trooper, was interviewed by one of the internal affairs investigators. He provided




*February 2001*		*Volume 19, Number 9*


	morning hours with an unopened bottle of wine in the back seat. Because of the heavy snowfall he was unable to proceed fully to his home and pulled to the side of the road to wait for the snowplow. The following morning a citizen noticed the vehicle with the engine running and the driver slumped over the steering wheel asleep and bloodied. The citizen did not realize that Diesel was a police officer. She attempted to rouse him by tapping on the window. That effort failed. She subsequently summoned the state police as well as local authorities. The responding officers, including a state police supervisor, subsequently testified as to Diesel's condition. He was taken to the trooper barracks where he was interviewed about the incident. He was subsequently transferred to a second barracks. He was also required at some point to remove the bandages on his nose in order that it could be photographed. Because of one trooper's concern about the possibility that Diesel might become violent the hostage-negotiating unit was called to the barracks. Six hours after Diesel was first found on the roadway he was released and driven home. An investigation of the incident was conducted and administrative charges were levied against Diesel, alleging that he had operated a department vehicle after having consumed alcohol. Ultimately, a letter of censure was placed in Diesel's file and he was transferred back to a uniform trooper assignment. He was never arrested or criminally charged. The incident received notoriety in newspaper articles as well as on radio. Diesel later said he was shunned by fellow police officers and became depressed. He filed suit against the troopers involved in his internal affairs investigation, claiming they violated his First Amendment rights by retaliating against him for his cooperation in the 1994 investigation of the trooper's brother. A trial jury returned a substantial monetary judgment for Diesel. Trial judge rejected part of the jury's findings and both sides appeal. HELD: Diesel claims that the department's vigorous investigation of the incident and the charges brought against him deviated from the treatment normally afforded similarly situated	officers. He alleges that the difference in treatment was motivated by the various troopers' intent to punish Diesel for his cooperation in the earlier investigation. Diesel complains that he was entitled to the benefits of what he calls "a blue wall of silence" behind which he expected his fellow officers to cover up his misconduct as he alleges is done for other officers who get in trouble. However, Diesel has no constitutional right to treatment by the police that would immunize him from the consequences of serious misconduct. While police organizations may extend professional courtesy and indulgence to colleagues and may retaliate against officers who violate the rules of courtesy by refusing to extend courtesy to them, nonetheless, civil damages are not available by reason of an officer's refusal to turn a preferential blind eye toward another's serious infraction. Awarding damages in such a situation would punish investigators because they did their duty by investigating misconduct instead of covering it up. Diesel could have avoided such retaliation simply by conducting himself within applicable laws and regulations. He further contends that he was falsely imprisoned and detained in violation of his Fourth Amendment right against unreasonable search and seizure. While the overall investigation lasted some six hours, the evidence reflects that the actual time spent questioning Diesel was far less. The six-hour time window included various times when Diesel excused himself to go to the bathroom as well as travel time between two trooper stations. He was not constantly interrogated during that period. Likewise, the requirement of removal of the bandages was reasonable. Any intrusion on Diesel's Fourth Amendment interest was quite limited when considered in light of the substantial public interest in ensuring the appearance and actuality of police integrity. The investigators' conduct was not unreasonable as a matter of law. Conduct that is properly initiated, reasonably executed, independently justified, and equally administered, regardless of any animosity toward the subject, does not give rise to a constitutional claim for retaliatory harassment. The fact that the




*February 2001*		*Volume 19, Number 9*


	other troopers may have derived some pleasure from Diesel's misfortune is of no constitutional significance. Reversed for investigating troopers. [Diesel v. Town of Lewisboro, New York, 232 F.3d 92 (2d Cir. 2000)]		is not a disability. It does not substantially limit a major life activity. She takes medication and the medication controls her symptoms. She is extremely physically fit and despite her asthma was able to complete the physical fitness test given by the FBI. The only disadvantage she has suffered by her allergy is not being allowed to be a Special Agent. The Supreme Court held that merely being unable to work in one job is not sufficient to qualify as substantially impaired. Boone is currently employed as a deputy sheriff, so she has not been precluded from working in law enforcement. Boone counters that the FBI viewed her asthma as a disability even if it is not one. Federal law does protect individuals who are perceived to be disabled. The FBI expressed concern about the possibility of Boone suffering an asthma attack during a physical confrontation. Physical confrontation is not a "major life activity." "Major life activities" under the law involve tasks such as walking, seeing, hearing, speaking, breathing, and working. While physical confrontation may have been a major life activity in the Neolithic era, physical confrontation does not rise to that level today. Summary judgment granted to FBI upholding denial of her employment. [Boone v. Reno, 121 F. Supp.2d 109 (D.D.C. 2000)]

	Handicap discrimination
	Boone was a deputy sheriff who applied for a position as a special agent with the Federal Bureau of Investigation (FBI). She received a conditional offer of employment contingent upon satisfactory completion of a physical examination. When filling out the standardized medical form, she stated that she took medication for asthma and had been hospitalized as a result of severe asthmatic episodes three times in the previous ten years. A contract physician with the FBI determined she was medically qualified. When FBI officials reviewed the medical report, however, they requested additional information regarding the asthma attacks. Ultimately, after reviewing further medical data and being reexamined Boone was notified that she was physically unfit for service as an FBI agent. She filed suit claiming that she had been discriminated against based on the federal Rehabilitation Act that provides that no otherwise qualified individual with a disability shall be discriminated against solely by reason of her disability. Government moves for summary judgment. HELD: The FBI argues that Boone's asthma is not a disability under the rehabilitation act. A review of statutes and case law reveals that the Rehabilitation Act language is similar to that of the American with Disabilities Act (ADA) when considering whether a particular impairment is a disability. The Supreme Court has previously held that the ADA's language focuses on the individual nature of the impairment and how the impairment affects the life of the particular individual. The court found that evaluation of an impairment should be considered in its corrected state. Additionally, under the law, a disability exists only where an impairment substantially limits a major life activity. When considered in its corrected state, Ms. Boone's asthma

			Dismissal procedures
			Five officers at the Asheville, North Carolina Police Department filed suit claiming a constitutional violation regarding the manner in which they left employment. The first officer, Young, on three occasions wrote and passed worthless checks. During the third incident an internal affairs officer told her that an investigation was underway. She was told that if she were terminated she would lose her certification as a law enforcement officer. She was offered the option of resigning. Young responded that the investigator "could have her badge." She subsequently wrote a resignation letter stating she was resigning for personal reasons. Crisp, the second officer, became involved in a domestic dispute with the father of her youngest child. A struggle ensued over her gun




*February 2001*		*Volume 19, Number 9*


	belt. At some point the gun discharged. As a result of this incident Crisp was placed on administrative leave and a protective order was issued against her. A month later, she became involved in a physical confrontation in front of the county jail. Her supervisor subsequently told her that it was possible she might lose custody of her child as well as her job. He told her he was going to refer the most recent confrontation to the district attorney unless she resigned. She too was told her law enforcement certification would not be in danger if she resigned. Crisp decided to resign due to fears of losing custody of her child. A third officer, Evington, became the subject of an investigation alleging that he sought a sex act from a female he had picked up in his patrol car. During a meeting with the chief of police he asked whether his law enforcement certification would be protected if he resigned. The chief responded that resignations have no influence over the certification. Evington resigned but in a separate report to the state, the chief recommended Evington not be employed elsewhere as a law enforcement officer. The next officer, Gaddy, was convicted of driving under the influence of alcohol. At a pre-disciplinary conference he was told it would be in his best interest to resign but he chose not to do so. He was terminated, and the termination was ultimately upheld by the civil service board. The final officer, Edwards, failed to turn into the property room cash that he had taken from an arrestee. Following an investigation into the incident he was terminated. A civil service hearing upheld the termination. The former officers filed suit alleging that their resignations and terminations violated due process law. City moves for summary judgment. HELD: In order to determine whether the ex-officers are entitled to procedural due process, it must be shown that they enjoyed a protected interest in their job. North Carolina is an at-will employment state. An at-will employee can be fired for irrational reason, no reason, or any reason that does not violate public policy. Employee manuals or policy memorandum, however, may form the basis for an implied contractual right to continued employment	if they are expressly enacted as ordinances. A review of state law and Asheville ordinances reveals that city personnel policies set forth a grievance procedure requiring all employees be treated fairly and equitably. It provides for a departmental pre-disciplinary conference before a suspension or termination. The police department itself had a disciplinary policy, but that policy had not been enacted by ordinance. Nonetheless the portion of the department policy setting out procedures required before an employee may be disciplined or terminated are virtually identical to the broad city procedures that were enacted by ordinance. Thus, under North Carolina law the officers have procedural rights that grant them a legitimate expectation of continued employment. Each ex-officer essentially argues that they were constructively discharged. If the ex-officers voluntarily relinquished their property rights by resigning, then they have not been deprived of due process. On the other hand, if the resignations were involuntary so as to amount to constructive discharges, there was a potential violation of due process. A public employer cannot avoid its constitutional obligation to provide due process by simply forcing involuntary resignations. Resignations have been found to be involuntary under two circumstances. First, when the resignations were obtained by the employer's misrepresentation or deception and where forced by the employer's duress or coercion. Both circumstances obviously involve situations where the employer's conduct prevent the employee from making a free and informed choice and effectively deprive the employee of his protected property interest. A review of the facts in each of these cases, however, reveals no such deception or coercion. Resignations can be voluntary even where the only alternative to resignation is to face possible termination for cause. Likewise, it does not violate due process simply because an employee was not allowed to choose the time of his resignation. Former officers also have failed to show that their resignations were based solely on the question of




*February 2001*		*Volume 19, Number 9*


	whether or not they would lose their law enforcement certification. Given that each officer voluntarily resigned without improper coercion on the part of the employer, summary judgment is appropriate for the employer. [Young v. Annarino, 121 F. Supp.2d 915 (W.D.N.C. 2000)]	770 So.2d 610 (Ala. Civ. App. 1999)]

		Dismissal procedures

		The police chief discovered the department's telephone bill contained a charge for a call to a "psychic hotline." The chief questioned Park, an officer who had been on duty that night, about the call. Park denied any knowledge of the call. However, another officer overheard the conversation and contacted the chief, admitting he had made the call. He stated he thought that no charges would be incurred if the call lasted less than three minutes and Park had assisted him in timing the call. The chief again talked to Park who again denied knowledge of the telephone call. The chief determined that Park was lying and recommended discharge to the city manager. The city manager reviewed the chief's report and transcripts of the interviews with the officers and concurred with the chief. Park was sent a letter of termination informing him that he was entitled to a public evidentiary hearing before a hearing officer. The letter stated that the issue at the hearing was whether the city's decision was arbitrary, pretextual or for improper motives. Park chose to have a hearing. The hearing officer determined that the city had not established that Park was fired for just cause. The city appealed that determination and the trial court determined the hearing officer incorrectly reviewed the evidence when he should have treated the matter as an appeal without re-determining the fact found by the city that Park had lied. The former officer appeals. HELD: The dismissal procedure effectively denied Park due process. Prior Florida case law holds that a police officer, who is not a probationary or at-will employee, has a right to a due process hearing before his termination becomes final. Additionally, when termination is based on the testimony of witnesses other than the terminated officer, as a matter of constitutional due process, the officer must be permitted to confront and cross-examine the witnesses. Here, Park was afforded no pre-termination hearing to confront the witnesses against him. Reversed for former officer. [Park v.

	Dismissal procedures
	Odell, a police officer, was terminated from employment for allegedly arresting the wrong person and using excessive force in the arrest. The police department based its termination on a finding that Odell's conduct constituted conduct unbecoming an employee in the public service, which was listed as a basis for termination under the county personnel board regulations. The personnel board reviewed the termination and determined that dismissal was not warranted. The discipline was altered to a 30-day suspension. In its order, the personnel board described Odell's conduct as an exercise in poor judgment, but stated that the suspension was based on a charge of conduct unbecoming an employee. Odell appealed the board order to trial court, which reversed the order and ordered him reinstated. Personnel board appeals. HELD: Under Alabama law, an administrative agency's decision will not be reversed unless it is arbitrary, capricious, or legally incorrect. Trial court found that the personnel board impermissibly charged Odell with violation of exercise of poor judgment that is not stated in their rules as a basis for termination. The court also found that Odell was never notified he was charged with exercise of poor judgment and that such a charge was unconstitutionally vague and ambiguous. However, a review of the record reveals that Odell's termination was stated as being conduct unbecoming an employee. The board merely described his conduct as an exercise of poor judgment. Nowhere in the board's order is he charged with exercise of poor judgment. Trial court erred by misconstruing the board's charge. Trial court reversed, with order to reinstate suspension as ordered by personnel board. [Mobile County Personnel Board v. Odell,




*February 2001*		*Volume 19, Number 9*


	City of West Melbourne, 769 So.2d 397 (Fla. Dist. Ct. App. 2000)]	request for a temporary restraining order to prohibit the department from suspending him without a hearing. Trial court issued that order and ultimately the attorney for the municipal department advised the court that he had instructed his client to withdraw the termination letter and afford Day the protections of the LEOBOR since he was not a probationary employee. Day was prosecuted on the sick leave use charge but found not guilty. Despite his acquittal, the municipal department did not request return of his certification card from the MPTC. Rather, Day was informed by letter from the chief of police that his suspension was being withdrawn but in two days his employment was being terminated. The ground for termination was his lack of possession of an MPTC certification card. Subsequent litigation was held in abeyance until MPTC had an opportunity to review its action in revoking Day's certification. The MPTC, however, declined to hold a hearing on the matter because the municipal department had never requested re-issuance of Day's certification card. Day went back to court and won an order reinstating him. Department appeals. HELD: The police department contends the trial court erred in ordering it to comply with the provisions of the LEOBOR because Day does not fit within the definition of "officer" because he does not possess the requisite certification card. The LEOBOR certainly applies only to "officers." What the department ignores, however, is that when it began its efforts to terminate Day he did hold a valid certification card. Likewise he held a valid card from the university at the time of his termination. Day found himself in an untenable position. Only the police department could request the re-issuance of his certification card, but until the department did so Day could not qualify as a "law enforcement officer," thus entitling him to LEOBOR protections from his dismissal by the department. The department was in a "win-win situation." Trial court properly recognized this inequity and properly determined that fundamental fairness required that Day be afforded LEOBOR protections. Affirmed

	Dismissal procedures
	For 19 years Day was employed as a law enforcement officer with the local university. In 1999, he applied for a position with the local municipal police department. As part of the application process Day verified that to the best of his knowledge no investigation was pending against him by his current employer. The sergeant doing the background check found the check to be satisfactory and aided Day in obtaining the required certification card from the Maryland Police Training Commission (MPTC). Maryland law provides that the MPTC shall issue a certification card to eligible police officers indicating that they are indeed certified by the commission. The law further provides that an individual may be employed by more than one law enforcement unit at a time but must hold a certification card for each unit. Day maintained possession of his certification card from the university police as he had not officially resigned from that position. His delay in resignation was due to the fact that during the 19 years of employment he had accumulated significant unused sick leave. Accordingly, after beginning his employment with the municipal police department, Day was still receiving sick leave pay from the university department. He officially resigned from the university department when his sick leave was exhausted. Sometime during the period between his application for employment with the municipal police department and his resignation from the university department, Day was informed that he was under investigation by the university and could be facing possible criminal charges for collecting sick leave pay. Based upon this information the municipal department returned Day's certification card to the MPTC and suspended him with pay, informing Day that because he was only a probationary employee he was not entitled to rights under the Maryland Law Enforcement Officers' Bill of Rights (LEOBOR). Day filed suit in the form of




*February 2001*		*Volume 19, Number 9*


	for police officer. [Town of Cheverly Police Department v. Day, 762 A.2d 981 (Md. Ct. Sp. App. 2000)]	requiring a person to commit an act or engage in conduct prohibited by law. Neither error of law nor fact in an arbitrator's decision permits an award to be set aside. Similarly, a court cannot re-examine the arbitrator's interpretation of the contract. In this case, the arbitrator found that accrued vacation had been paid in a previous circumstance. Past practice is an appropriate method of resolving issues in collective bargaining agreements where some terms are ambiguous. The town presents no basis for the overturning of the arbitrator's award. Affirmed for retiring police officer. [Town of Reading v. Reading Patrolmen's Association, Local 191, 737 N.E.2d 1268 (Mass. App. Ct. 2000)]

	Past Practice
	After 23 years on the police force, Farrell became disabled as a result of a heart condition. He was placed on injured on duty (IOD) leave and accidental disability retirement pursuant to the provisions of Massachusetts' law. At the time, the collective bargaining agreement between the town and the police union provided that employees earned 21 days vacation but could carry over from year to year only 7 days. The contract further provided that whenever an employee was terminated through no fault of his own or resigned in good standing, he would be paid an amount in lieu of his earned but unused vacation. While on IOD leave Farrell did not use his 1994 accrued vacation nor any leave that he earned in 1995 to the date of his retirement from the force in October of 1995. Following his separation from the force the town paid Farrell his entire 1995 vacation accrual but refused to pay any amount for the accrual in 1994. Farrell filed a grievance claiming that under the town's past and usual practice he was owed the accrued 1994 vacation value. The matter went to arbitration. The arbitrator determined that under a prior contract a police officer retiring on accidental disability had been paid for his unused vacation. That contract also limited vacation carryover to one week. The arbitrator then reasoned that since the parties did not bargain any changes in benefits in the new contract, then the past practice controlled the claim. Trial court affirmed the arbitration ruling and town appeals. HELD: Under Massachusetts' law judicial review of an arbitration award is narrow. Absent fraud, illegality in the award, or a procedural defect, a court's inquiry is confined to the question of whether the arbitrator exceeded the scope of his reference or awarded relief in excess of his authority. Massachusetts' statute limits review to whether an arbitrator exceeded his powers or rendered an award

		Defamation
		Ransom filed a complaint with the police department alleging misconduct on the part of Barge, a police officer. Barge subsequently sued Ransom for defamation alleging that the complaint contained false and malicious accusations that harmed his reputation. Ransom responded that the statements were absolutely legally privileged because they were made through the department's official complaint procedure. Trial court agreed and granted Ransom's motion for summary judgment. Police officer appeals. HELD: Generally, in a defamation action the court must first determine whether the statements complained of were defamatory. Here, however, the only issue is whether the alleged defamatory statements are protected by an absolute privilege or only by a qualified privilege. For public policy reasons the law recognizes certain communications to be privileged, and, as such, not within the rules imposing liability for defamation. Privileged communications can be classified as either absolute or qualified. An absolute privilege provides complete immunity for defamation, regardless of motive. In contrast, the qualified privilege is conditioned upon good motive. In order to recover for a defamation where there is qualified privilege, a plaintiff must prove actual malice. A person making defamatory statements about a public




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	official may be liable for defamation only if there is actual malice. Prior case law holds that police officers are public officials for the purposes of the law of defamation. Missouri courts generally have declined to extend the absolute privilege to proceedings not fitting within the legislative, executive, or judicial categories. The complaint procedure of the police department was not established by ordinance or other law. Rather, it was an internal procedure in which the investigators cannot subpoena witnesses or swear them. There are no formal rules of evidence during an investigation. Complainants are warned that they could be subject to suit for malicious prosecution if the complaint is unfounded. After reviewing similar cases from other jurisdictions the court concludes that while absolute privilege may be appropriate in very limited situations, the public policy encouraging citizens to report police misconduct pursuant to departmental regulations lacks the procedural safeguards of judicial-type proceedings. Absolute privilege would cloak unsupported and malicious statements of any kind with immunity without providing recourse to the defamed police officer. Qualified privilege is more important in this circumstance. A qualified privilege will protect from liability for defamation persons who make good faith complaints, without closing all avenues of protection to the officer. Reversed for officer and remanded for further proceedings. [Barge v. Ransom, 30 S.W.3d 889 (Mo. Ct. App. 2000)]	needed. Four years later the union and the state police formed a committee to address problems within the existing rank structure, including the inequity of non-supervisory soft corporals receiving pay identical to hard corporals. Subsequently, the director of personnel approved a new rank structure that retained the hard corporals in the title of corporal but they received a pay increase. Soft corporals were renamed Trooper II and remained in the same pay grade. Thus 50 soft corporals lost their titles and had to remove corporal insignias from their uniforms but did not lose pay and benefits, nor did their job duties change. The union filed a complaint with the state labor board, charging that the state should have bargained the decision to eliminate the rank of corporal and that an unfair labor practice was committed because the soft corporals had been demoted without cause. The labor board determined that since the soft corporals suffered no reduction in pay or benefits, the change in rank title was not a demotion and, thus, was not subject to bargaining. Union appeals. HELD: State statute provides that police employees may not be demoted except for cause following a hearing. State statute, however, does not define "demotion." Under a plain meaning analysis, demotion anticipates at a minimum some reduction in job duties, pay or benefits, none of which occurred when the soft corporals were changed to Trooper II. Thus, the troopers did not suffer a demotion. The union also argues that rank, once awarded, constitutes a term or condition of employment that cannot be altered absent bargaining. The state contends that rank falls within managerial prerogative. Once again, New Hampshire statute specifies that wages, hours, and conditions of employment, other than managerial policy within the exclusive prerogative of the employer, are subject to bargaining. New Hampshire employs a three-part test to determine whether there is an obligation to bargain. First, to be negotiable the subject matter of the proposed contract provision must not be reserved to the exclusive managerial prerogative of the employer

	Bargaining subject
	In 1992, the state, acting through its personnel division, restructured the classification system of the state police. It created supervisory "hard" corporals and "soft" corporals. The hard corporals and the soft corporals received identical pay and benefits. The hard corporals were promoted on merit to fill existing supervisory vacancies while the soft corporals received promotions after 10 years of service, if otherwise qualified. Soft corporals generally did not serve on a full time supervisory basis but performed supervisory duties only as




*February 2001*	*Volume 19, Number 9*


by the constitution or by statute. Second, the proposal must primarily effect the terms and conditions of employment, rather than matters of broad policy. Third, if the proposal were incorporated into a contract, neither the resulting contract provision nor the applicable grievance process may interfere with public control of governmental functions contrary to state labor law. With this three-step standard a matter that fails step one is a prohibitive subject of bargaining. A matter that satisfies step one but fails either step two or three is a permissible topic of negotiation. A matter that satisfies all three steps is a mandatory subject of bargaining. Since state statute grants to the division of personnel the authority to determine grades, positions, and ranks, the alteration of the rank of the former soft corporals was a prohibited subject of bargaining. Affirmed for state. [Appeal of New Hampshire Troopers Association, 761 A.2d 486 (N.H. 2000)]		obligated to bargain over the impact of its managerial prerogative. A duty to engage in impact bargaining is triggered by the presence of four elements. First, the employer must lawfully exercise its managerial prerogative; second, there must be a demonstrable impact on wages, hours, or working conditions that are severable from the managerial decision; third, the union must demand to negotiate these matters following management's implementation of its prerogative; and fourth, the public employer must refuse the union's demand. The union claims the county implemented the light-duty program when it notified Perry to report for work four days later. However, the union demanded bargaining prior to implementation of the policy. Consequently, the union's demand was premature. Further, even if the demand had been made later, the union did not allege facts sufficient to show the matter had a severable impact on terms and conditions of employment. Its charge does not reflect that a program was being initiated but only indicates that a single employee received a light-duty assignment. The county was under no obligation to bargain prior to the implementation of a unit wide light-duty policy. Allowing the union to succeed would permit the union to indirectly bargain the underlying managerial prerogatives under the guise of impact bargaining. The labor board was correct in adopting the four-part test to determine when bargaining must occur over the impact of a matter of managerial prerogative. [Lackawanna County Detectives' Association v. Pennsylvania Labor Relations Board, 762 A.2d 792 (Pa. Cmmw. 2000)]

Bargaining subject
Perry, a detective and a member of the union, was on disability leave. The county notified him by letter that he was scheduled to return to work in a light-duty position of modified courthouse worker at a salary equal to his pre-injury wages. Perry notified the union of the county's action. The following day the union wrote a letter to the county claiming that a public employer must first bargain over the impact of creating a light-duty policy that touches upon the hours, wages and conditions of employment. The union requested bargaining on the matter. The county ignored the request and placed Perry in the light-duty position. The union filed an unfair labor practice complaint with the state labor board. The board denied the complaint and the union appeals. HELD: The union claims the board abused its discretion by refusing to issue a complaint on the union's charge that the county committed an unfair labor practice when it refused to engage in impact bargaining over the implementation of a light-duty policy. The union claims the county was

		*Settlements*
		Brookfield, Wisconsin police officers

		Members of the Brookfield Professional Police Association will gain a 3 percent across-the-board raise, the same as other city workers. The two-year contract covering 48 employees took effect




*February 2001*	*Volume 19, Number 9*


January 1. In addition, the city agreed to raise the starting salary of a police officer from $33,180 to $36,480.		seven years of service and 10 percent after 15 years on the force. In an unusual provision, the extra day off will be allowed only if it does not incur costs to the town because of minimum staffing rules. Officers will earn time-and-one-half (based on an hourly rate of $30) for detail shifts that go beyond eight hours. Additionally, traffic detail assignments will be compensated at double time on Sundays and holidays.

Fresno, California police officers
Fresno City Council this month signed off on a new three-year memorandum of understanding with the Fresno Police Officers' Association. The pact, retroactive to last July, grants police officers and sergeants an immediate 4 percent pay boost. Subsequent 3 percent hikes will be awarded in each of the next two fiscal years. While the city was increasing the force size to 700 officers in recent years, the police union had accepted raises averaging 1.5 percent. Under the new agreement, top of scale officers will draw a base salary of $59,340 while senior sergeants will earn $71,544. Other contract clauses include the option for binding grievance arbitration, a $36 stipend for court availability on days off, and establishment of an officer fitness program.

		Teaneck, New Jersey police officers
		Three years of four percent raises top the economic gains for Teaneck police officers in their new labor accord. In addition, officers and supervisors will receive an extra $25 in clothing allowance in each of the next three years. The Teaneck Policemen's Benevolent Association, Local 215, represents the officers.


		Police Labor Monthly has been advised by the Bureau of Justice Assistance (BJA) that contrary to earlier press releases, the matching monetary requirement for participation in the federal body armor purchase program remains in place. A BJA representative has advised that the waiver for small and rural agencies announced in the December 2000 issue of Police Labor Monthly was erroneous. Departments interested in the federally-supported program can obtain information at http://vests.ojp.gov/.
Mahwah, New Jersey police officers
The Mahwah Policemen's Benevolent Association and the township have agreed to a three-year labor contract. The pact, which covers 53 members of the department, provides a 3.5 percent wage jump this year, 3.6 percent in 2002, and 4 percent in 2003.

North Providence, Rhode Island police officers

North Providence police officers will receive 4 percent annual raises, higher detail pay, and an extra day off under a new three-year contract. The agreement worked out between the city and Lodge 13 of the Fraternal Order of Police is retroactive to July 1. Other economic benefits include improvement in the longevity pay scale during the contracts' final year. In 2002, longevity pay jumps to 4.5 percent for five year veterans, 8.5 percent after

February 2001

FOP sues DOJ over pattern and practice suits

Utah passes legislation barring PAC check-off

Winnetka police applicants may need voter registration

Charleston, West Virginia, facing police and fire layoffs

Supreme Court update

Cases of interest

Disciplinary grounds

Handicap discrimination

Dismissal procedures

Dismissal procedures

Dismissal procedures

Dismissal procedures

Past Practice

Defamation

Bargaining subject

Bargaining subject

Brookfield, Wisconsin

Fresno, California

Teaneck, New Jersey

Mahwah, New Jersey

North Providence, Rhode Island