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President signs Medal of Valor law 
Courageous police officers are now eligible for national recognition for bravery thanks to a newly enacted federal law. President George W. Bush earlier this month signed the "Public Safety Officer Medal of Valor Act." The new program authorizes a medal to be awarded by the President in the name of Congress to law enforcement officers who demonstrate courage and bravery beyond the call of duty. 

"This legislation enables Congress to recognize the everyday heroes of America's communities, those whose selfless dedication to duty and to protecting our streets and neighborhoods too often goes unnoticed," said Gilbert Gallegos, Grand Lodge President of the Fraternal Order of Police, upon the passage of the act. 

Under the legislation, an eleven-member Medal of Valor Board will be appointed by the President and the leadership of each house of Congress. All members of the board must have knowledge or expertise in the field of public safety 

 and the three Presidential appointees must include one individual with experience in law enforcement, one with experience in fire fighting, and one with experience in emergency services. 

Once a year the board will forward to the Attorney General the names of not more than five public safety officers who have demonstrated "extraordinary valor above and beyond the call of duty." The Attorney General will then select some or all of the nominees to recommend to the President for the award. 

The program is effective September 1 but no meeting of the board can occur until all members have been selected. The board is authorized to conduct hearings and take testimony as necessary to carry out its duties. 

Eligible for the award are both paid and non-paid individuals serving public agencies as law enforcement officers, corrections officers, court officers, fire fighters, and emergency services officers. 

Mayoral endorsement equals compressed work shifts 
Police labor groups have become increasingly active in local elections. From candidate endorsements to campaign contributions, many police unions use their political resources to help elect mayors and council members. Generally, their expectation is a sympathetic ear at city hall. 

The stakes increased in the recent Los Angeles mayoral election, however. During the campaign the ultimate victor, James Hahn, promised a compressed workweek for police officers in exchange for the endorsement and assistance of the Los Angeles Police Protective League (LAPPL). And Mayor-elect Hahn is apparently moving rapidly to deliver on his promise. 

 In an address this month to the LAPPL, the mayor-elect vowed to implement the shortened workweek "as soon as possible." During the campaign he promised the change in the first 90 days of his term but told LAPPL officials that 120 days may be more realistic. 

The compressed work schedule would put patrol officers on a three-day-a-week, 12-hour shift. Every other week officers would work an 8-hour shift to clock a total of 80 hours every two weeks. Detectives would be assigned to four-day-a-week, 10-hour shifts. Chief of Police Bernard Parks has publicly expressed reservations about the plan. 

While a small percentage of the nation's 
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police agencies work 10-hour or 12-hour shifts, most assign officers to 8-hour shifts, five days per week. The proposed Los Angeles change is believed to be the first time a major city police department has moved from the traditional 8-hour shift on other than a limited experimental basis. 

The plan is based on a 1996 LAPD pilot 

 program. During the program, overtime and sick time costs were reduced but police officials claim that staffing problems were created. The latter issue is particularly germane as the department of 9,000 officers is about 800 officers below its high of two years ago. Recently, officers assigned to specialized units have been transferred back to uniformed patrol. 

FBI continues investigation of D.C. police labor group 
Special agents of the Federal Bureau of Investigation last month executed a search warrant on the Washington, D.C., offices of the Fraternal Order of Police Labor Committee. Agents seized documents, financial records, and equipment as part of an ongoing investigation of current and former union officials. 

The raid came after federal authorities deepened a probe into who spent $80,000 in union money on items such as a stay at a vacation resort in Pennsylvania, a $300 pair of shoes, artwork, computers, and other items unrelated to official business, the Washington Times newspaper reported. The government had previously subpoenaed certain 

 records from the Labor Committee. 

The investigation began last November after an internal audit turned up financial irregularities. Gerald Neill, a sergeant on the D.C. police department and current chairman of the Labor Committee, brought the discrepancies to the attention of the police internal affairs unit. 

Investigative efforts are reportedly focusing on Frank Tracy who Neill defeated for the chairmanship last year. Meanwhile, Tracy has sued Neill for defamation and the labor committee's attorney has sought a court order barring the committee from hiring a different lawyer. He is also suing Neill and other officials. 

Laborers join deputies on picket line 
Work on the LaSalle County, Illinois, jail stopped for awhile last month after construction workers refused to cross an informational picket line established by sheriff's deputies. In addition, the workers joined the officers on the picket line. Virtually all union employees at the site stopped work and joined the deputies shortly after picketing began at 6 a.m. on May 23.  The informational picket started with about two-dozen deputies but grew as the day progressed. Construction workers joined the picketing without being asked. Work was halted for about four hours. 

The deputies, represented by the Fraternal Order of Police (FOP), were protesting the pace of negotiations for a new contract. The FOP represents about 50 officers through the rank of lieutenant. 
Litigation 
originally came before the court in 1997. At that time the justices ruled that the county was not liable for the sheriff's negligent hiring decision when he employed a reserve deputy who was virtually untrained. The county had been sued because the deputy had used excessive force against a motorist 

Supreme Court update 
As the current term of the Supreme Court winds to a close the justices refused to give a second look at Bryan County, Oklahoma, Board of Commissioners v. Brown, No. 00-1311. This case 
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he arrested. After the case was remanded, a lower federal court ruled that the county was liable under a theory of negligent training of the deputy. However, the county had virtually no policy requiring training. It is this judgment the Supreme Court refused to consider. 

One case of interest seeking review is Bogren v. State of Minnesota, No. 00-1729, wherein the state's first black female trooper, who was terminated during her probationary period, is claiming sex and race discrimination. The Minnesota State Patrol fired Bogren following her involvement in a dispute with a former boyfriend. Lower federal courts have found no evidence of discrimination on the part of the patrol. No review decision has been made as yet. 

 rights. Trial court ultimately awarded a monetary judgement to Serna on the two claims. Chief of police and department appeal. 

HELD: A party must satisfy four elements to recover on a First Amendment retaliation claim. The party must: (1) suffer an adverse employment action; (2) show that the speech in question was a matter of public concern; (3) show that their interest in committing on matters of public concern outweighs their employer's interest in efficiency; and (4) show that the speech motivated the adverse employment action. To recover on a claim under the Texas whistleblower law a party must satisfy three elements. The employee must show: (1) a good faith report of a violation of law; (2) that the report was made to an appropriate law enforcement authority; and (3) show an adverse personnel action as a result of the report. Prior federal case law establishes that a transfer may under certain circumstances constitute a sufficient adverse employment action to give rise to a First Amendment retaliation claim. Texas statute similarly includes "adverse transfers" as a basis for a whistleblower claim. However, the public employee must show more than that he was transferred from a job he liked to one he considered less desirable. The employee must produce sufficient evidence for the jury to conclude that the transfer caused him harm sufficiently serious to constitute a constitutional injury. In other words, the employee must show that he has suffered some serious, objective, and tangible harm as a result of his transfer. Personal preference and subjective perceptions of the job are insufficient to establish that a transfer inflicted a constitutional injury. Here, the evidence showed that the downtown bike patrol was considered more prestigious than regular patrol units and that some officers preferred the proactive tactics that could be used with the unit. However, there was no evidence to suggest the transfer to a regular patrol unit was considered within the department to be any kind of demotion. Almost every officer who testified at trial stated that he had spent a substantial portion of his career in patrol. 

Cases of interest 

Transfer 
The police department operated a downtown foot and bike patrol unit. Serna had been a member of the unit for eight years. Friction, however, began to develop between some members of the unit. Several officers, including Serna, felt that the supervising lieutenant was giving them illegal orders. These orders were, they thought, to harass the homeless and minority teenagers who frequented downtown, to confiscate alleged drug paraphernalia and to selectively enforce public intoxication statutes against downtown bars that cater to minority and working class personnel. Serna and the other officers complained about these orders to their captain. As a result of the continuing tension in the unit, the chief of police appointed a committee to investigate the source of the problem. The committee interviewed each member of the unit. The committee concluded that a group of officers, including Serna, were being disruptive and encouraged other officers to show disrespect for their supervisors. To solve the problem the committee recommended, and the chief agreed, transfer of Serna out of the unit. Serna was transferred to a regular patrol unit. He filed suit claiming that his transfer violated the Texas whistleblower act as well as his First Amendment 
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When Serna was transferred, he essentially maintained the same days off, Saturday and Sunday, and while his shift changed from evenings to nights, there was no evidence that he was bothered by the new hours or that he attempted to get them changed. Serna never suffered a loss in pay or benefits and he produced no evidence that his chances of promotion were reduced by his transfer. The officer did not produce sufficient evidence to establish that he suffered an adverse employment action as a result of his transfer. Thus, he may not recover on his constitutional claim or his state whistleblower claim. Reversed for chief of police and department. [Serna v. City of San Antonio, Texas, 244 F.3d 479 (5th Cir. 2001)]  report of a handwriting expert was cited as part of the department's decision to dismiss Young. Young appealed his dismissal to the city administrator who upheld the dismissal. Similarly, the city personnel board upheld the termination. Young filed suit claiming that he had been denied both procedural and substantive due process. Among his allegations were that the personnel board failed to follow basic chain of custody safeguards in storing the original forms and that the handwriting examiner who testified against him was not a qualified expert. Young also alleged that the copies of the forms relied upon for the basis of his dismissal were not the same forms he had given to the department. Trial court dismissed the complaint and former officer appeals. 

HELD: The due process clause of the Fourteenth Amendment prohibits governments from depriving any person of life, liberty or property without due process of law. This clause has two components: procedural due process and substantive due process. As to procedural due process, a governmental employee is entitled to a hearing or some related form of due process before being deprived of a constitutionally protected interest. The process is sufficient if the employee receives notice, an opportunity to respond to the charges before his termination, and post-termination administrative review. The pre-termination process need not be elaborate, especially if there are meaningful post-deprivation procedures. In this case, Young received all the process that was due him. He received notice of his dismissal and an opportunity to respond to the charges. He received a hearing with the department and two post-termination appeals, one to the city administrator and one to the city personnel board. He also was afforded the opportunity for judicial review of his dismissal in state court. Similarly, Young's substantive due process rights were not violated. To state a substantive due process claim, a public employee must allege that the government action was sufficiently outrageous or so irrational as to be arbitrary and capricious. An alternate way to bring a substantive due process claim is to assert that the government's actions 

Dismissal procedures 
The police chief distributed a memo instructing all officers to update their requests for outside employment. In response to the memorandum, Young, a 17-year veteran officer, filled out a number of forms for a variety of outside employers, some of whom he was already working for and some for whom he anticipated working. Several years later he and two other officers were investigated for working outside employment without having submitted requested forms. The case against the other two officers was quickly closed but an intensive disciplinary investigation was instituted against Young on the grounds that he failed to have a form on file for the outside employment. At a pre-disciplinary meeting he was ordered to produce any copies of his employment request forms. At the second pre-disciplinary meeting he produced his copies of 25 forms, including the one relevant to his dismissal. After reviewing the documents the department's second-in-command accused Young of submitting forgeries. Young denied that the documents were forgeries and later alleged that the captain kept the originals and gave him back only copies of the documents. The department subsequently dismissed Young from employment while finding that some or all of the forms he submitted were altered. The 
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"shock the conscience" or offend judicial notions of fairness or human dignity. The conduct of the department and the personnel board in this case does not rise to that level. The facts simply do not support the conclusion that the decision to terminate Young was irrational or outrageous. Dismissal of case affirmed. [Young v. City of St. Charles, Missouri, 244 F.3d 623 (8th Cir. 2001)]  employment law prohibits discrimination with respect to employee's compensation, terms, conditions, or privileges of employment. Courts have uniformly read this language to require a plaintiff to establish that he suffered an adverse employment action. While adverse employment actions must be determined on a case-by-case basis, it is clear that not all conduct by an employer negatively affecting an employee constitutes such an adverse employment action. To prevail under the anti-discrimination law an employee must show a serious and material change in the terms, conditions, or privileges of employment. A mere subjective view of significance or adversity of the employer's action is not controlling. Neither the memorandum nor the removal of OIC designation caused any economic injury to Davis. The memorandums were not even considered as reprimands under the town's progressive discipline structure but rather as counseling memos. Similarly, the OIC designation most often was given to the most senior patrol officer. It is difficult to view that designation with the same kind of recognition of achievement that a promotion typically implies. Employer criticism, like employer praise, is an ordinary and appropriate feature of the workplace. Federal fair employment law simply does not extend to everything that makes an employee unhappy. To expand the law to permit discrimination suits predicated only on unwelcome day-to-day critiques and assertedly unjustified negative evaluations would threaten the flow of communication between employees and supervisors and limit an employer's ability to maintain and improve job performance. Federal courts should not be put in a position of second guessing the feedback that an employer gives an employee. Loss of prestige or self-esteem felt by an employee who receives what he believes to be unwarranted job criticism will rarely, without more, establish a fair employment claim. Davis has failed to demonstrate that the town violated federal anti-discrimination law. Affirmed for town. [Davis v. Town of Lake Park, Florida, 245 F.3d 1232 (11th Cir. 2001)] 

Disciplinary procedures 
Davis was the only African-American police officer on a 20-member department. Over a four-year career he received satisfactory or better performance reviews and served as a field training officer. In early 1996, his sergeant selected Davis to serve as Officer in Charge (OIC). The OIC was the officer who filled in for the shift sergeant when the sergeant was not available. The OIC designation was normally awarded to the most senior officer on the shift and carried no additional pay or benefits. Over the course of the following year Davis was designated OIC several times. At other times he was replaced as the designated OIC, allegedly because of performance deficiencies. During the same time frame Davis received two different counseling memos from his supervisor. One memo cited him for not turning in paperwork on time while the other memo, somewhat more harsh, noted that his level of performance had been unacceptable for a field training officer and if his performance did not improve, other action might be taken against him. During this period Davis suffered no reduction in salary, loss of benefits, or alteration of work assignment. Nonetheless he filed suit against his employer alleging a violation of federal fair employment law. A jury awarded him $1 in nominal damages but the trial judge overturned the award and granted the town a verdict as a matter of law. Davis appeals. 

HELD: Davis contends that the two memos were tantamount to reprimands and that the removal from the OIC position constituted a demotion that deprived him of supervisory experience that could have yielded future benefits. Federal fair 
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Overtime 

 consecutive days. The regulations further provide that the work period need not coincide with a duty cycle or pay period of the employer. Such a "work period" for the purpose of the FLSA need not coincide with the actual duty cycle of employees. Further, the city has shown that it calculated the overtime compensation due to its patrol officers under the labor agreement and in each case the amount equaled or exceeded its liability under the terms of the FLSA with the 28-day work period. Since the city established the 28-day work period and paid sufficient overtime compensation for that work, it must be granted judgment in this suit. Affirmed for city. [Franklin v. City of Kettering, Ohio, 246 F.3d 531 (6th Cir. 2001)] 
In 1970, the city recognized the Fraternal Order of Police (FOP) as the collective bargaining representative for police patrol officers. Over subsequent years the city and the FOP negotiated a series of collective bargaining agreements. Under the labor contracts the city paid officers an hourly wage for their regular hours along with a shift differential. Officers also received a weekend differential. Officers were paid time-and-one-half their hourly pay rate for hours worked in excess of forty per week or for any time worked beyond the officer's normal workday. The city did not include the shift or weekend differentials, however, in calculating the overtime rate. Patrol officers worked six days on, two days off, and had four days off every sixth week. Thus their duty schedule repeated every 42 days. In 1986, the city became subject to the overtime provisions of the Fair Labor Standards Act (FLSA). While the city paid overtime in accordance with the collective bargaining agreement, the patrol officers alleged they did not receive compensation due them under the FLSA because the city failed to include the pay differentials in calculating their overtime rate. The city contended, however, that it had established a 28-day work period for the officers and that its payments in accordance with the terms of the labor agreement sufficiently covered its liability under the FLSA. The officers brought suit alleging that the city could not use the 28-day work cycle under the FLSA because of the 42-day duty cycle the officers actually worked. Trial court found for the city and officers appeal. 

HELD: The officers allege that the city cannot establish a 28-day "work period" under the FLSA because their regular duty schedule repeats on a 42-day cycle. Thus, the officers claim that for purposes of compensation under the FLSA the "work period" cannot coincide with the 42-day actual duty schedule. Department of Labor regulations specifically rebut this argument. The regulations define "work period" as a reoccurring period of work not less than seven nor more than 28 

Promotion procedures 
The chief of police announced his retirement. Subsequently, the mayor appointed an interim chief. The individual appointed had served on the department over 20 years but was promoted to interim chief from the rank of corporal. The appointment passed over the deputy chief. Following the announcement of the interim chief's selection, the mayor announced elimination of the deputy chief slot and informed Murphy, the incumbent deputy chief, that he would be returned to the rank of lieutenant. The town council disagreed with the mayor's actions and enacted a resolution purporting to declare the appointment of the interim chief void. Murphy filed suit claiming that his position as deputy chief had been eliminated in violation of the Constitution and New Jersey statute. Specifically, he argued that the mayor did not have the statutorily required advice and consent of the town council to appoint the interim chief. Trial judge, relying on the police department manual, ruled that the manual did not provide for the position of deputy chief. Therefore the mayor's elimination of the position was proper. In addition, the judge also ruled that the police manual did not provide for the position of interim chief and, consequently, the mayor could not appoint a person to a position that did not exist. Mayor appeals. 
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Compensation 
HELD: Trial court placed undue emphasis on the police department manual. The record reflects that the manual was not adopted by ordinance and, therefore, is not binding on the mayor. Thus, it cannot be a source of authority that either confirms or detracts from the mayor's power to make interim appointments. New Jersey statute provides that whenever a municipal office becomes vacant, the mayor shall appoint a successor "forthwith". The statute further provides that the mayor obtain the advice and consent of the town council. The question presented here is if the council does not agree with the mayor's nominee, may the mayor appoint an interim until a candidate that is acceptable to the council is found? A review of other New Jersey statutes reveals an assumption of the existence of authority to make temporary or interim appointments to positions vacated by resignation. There appears to be no statute or legal principle that prohibits a mayor from making an interim appointment to a department within the executive branch of government. Thus, the mayor in this case had the inherent authority to appoint the interim chief of police. The council contends, however, that to permit the mayor to act in this manner would circumvent the advice and consent requirement of state statute. This argument is two edged. It could be equally argued by the mayor that the council's refusal to give advice and consent to his nominee interferes with the mayor's ultimate right to make such appointments. The problem is at its root a political one for which a court can not give a definitive answer. If a municipal council believes a mayor has made a temporary appointment that has all the earmarks of a permanent one, it may seek legal redress on the grounds that the mayor has the obligation to make permanent appointments requiring advice and consent "forthwith" under New Jersey law. Trial court's ruling reversed to the extent that it holds that the mayor may not make an interim appointment to the position of chief of police. [Murphy v. Luongo, 768 A.2d 814 (N.J. Super. Ct. App. Div. 2001)] 
In 1980, the sheriff requested the county commission approve a longevity pay system for all sheriff's department personnel. At the time each rank received identical salary regardless of length of service or job performance. While the plan required an increased appropriation, the sheriff argued that the plan would eventually save the county money by decreasing employee attrition. The county commission approved the new pay policy and it was implemented by the sheriff. Some years later a group of deputies filed suit against the county claiming that it had manipulated or otherwise improperly administered the longevity pay plan such that they were wrongfully deprived of rightfully earned compensation. The county moved for summary judgment on the basis of sovereign immunity. Trial court denied the motion and county appeals. 

HELD: In general, the doctrine of sovereign immunity provides a public entity and its officials absolute and unqualified immunity from suit against them in their official capacity. Such immunity may be waived, however. Prior North Carolina case law holds that when governmental officials enter into a valid contract, they implicitly consent to be sued for damages in case of breach of contract. Once the county adopts a budget ordinance, it becomes the statutory duty of the county's finance officer to disperse the funds in compliance with the ordinance. Such salaries provide the necessary consideration for the formation of employment contracts between the sheriff and his deputies. The county, after availing itself of services provided by its law enforcement officers, may not claim sovereign immunity as a defense to its statutory and contractual commitment. It is not the sheriff's responsibility to fund the sheriff's department but that of the county. Likewise, the sheriff does not administer the funds. Thus, the sheriff should not be a party to this suit and summary judgment should be granted in his case. Refusal to dismiss case against county affirmed. [Hubbard v. County of Cumberland, 544 S.E.2d 587 (N.C. Ct. App. 2001) 
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Overtime 

 for former deputy. [Dick v. Merillat, 745 N.E.2d 507 (Ohio Ct. App. 2001)] 
Dick was an eleven-year veteran of the sheriff's department. He was assigned to the sheriff's canine unit. Among his responsibilities were to feed, groom, train, and otherwise care for his dog at home at night. Following his resignation from the sheriff's department, Dick filed suit asserting that he had worked a substantial number of overtime hours caring for the dog and that the county had failed to compensate him for that time in violation of the Federal Fair Labor Standards Act (FLSA). Trial court initially granted partial summary judgment for Dick, finding that his off-duty time spent in caring for the dog constituted compensible hours under the FLSA but that a question of fact remained as to the actual number of hours under which he had performed the work. While the case was pending for trial on the number of hours worked, the U. S. Supreme Court rendered its decision in Alden v. State of Maine. The county filed a motion asserting that pursuant to Alden, it had sovereign immunity from an FLSA lawsuit in state court. Trial court granted county's motion for summary judgment on the basis of the Alden case holding that the principle of sovereign immunity barred the suit. Former deputy appeals. 

HELD: In the Alden case a group of state employees brought suit in federal court under the FLSA. The federal court held that the state was immune from private suit in federal court. When the individuals pursued the same claim in state court, it was dismissed on the basis of sovereign immunity. The U. S. Supreme Court affirmed the sovereign immunity claim and held that Congress does not have the power to subject non-consenting states to private suits for damages in their own courts. In this case, the trial court relied upon Alden to deny Dick's claim. However, Dick brought suit against the county sheriff and county government, not the State of Ohio. Previous case law holds that the sovereign immunity granted to states under the Constitution does not extend to sub-units of the state such as counties. Thus, the Alden decision does not bar an FLSA suit against an Ohio county. Reversed 
Settlements 

Dayton, Ohio 

police officers 
Dayton police officers and supervisors last month overwhelmingly approved a new three-year labor agreement with the city. The Fraternal Order of Police members will receive a 4 percent raise the first year followed by pay hikes of 3.25 percent in each of the two succeeding years. The pact also provides for increases in education incentive pay, improvements in shift differential pay, and a wage boost for field training officers. 

Niagara Falls, New York 

police managers 
The Niagara Falls Police Captains and Lieutenants Association has ratified a new four-year labor pact with the city. The agreement contains a wage pass for its first two years followed by pay boosts of three percent in years three and four. A new pact for rank-and-file officers is currently in arbitration. 

Sarpy County, Nebraska 

deputy sheriffs 
A labor pact approved early this month grants Sarpy County deputies pay raises exceeding 20 percent over the pact's two-year life. Raises for some civilian employees will approach 31 percent. Entry-level pay will increase 1.7 percent each year to $30,636. In addition, future deputies will be awarded a $2,000 bonus upon being hired. An eight-year veteran deputy will see a 15.3 percent pay boost, bringing base wage to $47,740. Captains will see their base wage increase by 23.4 percent to $71,292 in the contract's final year. About 111 sworn officers are covered by the pact. Lodge 3 of the Fraternal Order of Police is the bargaining agent. 
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Next month's 
Salary Tracker 
features 
Detective and Police Officer 
salaries 
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Volume 20, Number 1 
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/.