Last month the Dallas City Council agreed to pay at least $4.6 million to six former deputy police chiefs who were demoted in October, 1999, by newly appointed Police Chief Terrell Bolton. The demotions marked the first time a Dallas chief had removed commanders without a finding of wrongdoing. The chief's action apparently went against the city employee handbook and a 1995 legal opinion from the city attorney's office that all city employees held property rights in their jobs. In a subsequent lawsuit filed by the deposed police commanders, a federal judge first ruled in their favor but then withdrew the opinion. The uncertainty created by the ruling prompted the parties to settle. 

Unlike many police personnel suits, the Dallas event did not directly involve allegations of race and sex discrimination. While the demoted chiefs included women and racial minority group members, their replacements also cut across racial and gender lines. 

The San Diego case raises a similar issue. "In my 29 years with the police department, I have never heard of anything like this," said Bill Farrar, president of the San Diego Police Officers Association, referring to the suit by a former assistant chief to get her job back. 

Nancy Goodrich, who was demoted from assistant chief to captain last March, has filed a lawsuit seeking reinstatement to her old rank and its $13,000 annual salary differential. In the lawsuit she claims she was called into a meeting with the police chief and told that her style was not compatible with that of the chief's management team. She was given the option to retire or be demoted and chose the latter. Early last month a state judge ruled in her favor. The judge has delayed putting her back in her old job until the city has the opportunity to produce further documentation regarding the alleged lack of civil service protection for assistant chiefs. Complicating the matter is the fact that another officer has filled the assistant chief position. A ruling is expected by the end of July. 

The two cases indicate that the traditional at-will status of appointed police command ranks has become clouded by inconsistencies in department practice, city employment manuals, collective bargaining agreements, and state and local civil service rules. In many jurisdictions recent court opinions have generally favored employees on the question concerning the existence of a property interest in their public employment. The Dallas and San Diego suits appear to add to that trend. 

In 1987, the Vermont State Police implemented a mandatory fitness program for troopers. The program were based on data developed by the Cooper Institute and troopers were required to maintain a fitness standard equal to the 50th percentile of the general population. The standards were adjusted for age and sex. 

At age 34, Scott began to repeatedly fail the semi-annual fitness assessment. Specifically, he could not complete the 1.5-mile run in the required 12:51 minutes required of males his age. Scott subsequently declined the department's offer to 

After receiving no relief through the grievance process, the trooper took the matter to court. Ultimately, the Vermont Supreme Court rejected his complaint. The court found that Scott was not a member of a "protected class" as defined under fair employment law. Consequently, he could not establish a presumptive case of discrimination based on age and gender. Likewise, the court accepted the principle that the 1.5-mile run was an accurate measure of aerobic capacity and the department was under no obligation to create a single absolute standard for all troopers of all ages. 

The court closed by rejecting the claim that the fitness standards were not job-related. Since Scott could not demonstrate discrimination, the state police were under no legal obligation to establish the job-relatedness of the test. 

A group of 439 patrol officers sat for the two-part test in Spring of 2000. Of that group, 389 passed and 63 were subsequently promoted. But, an internal investigation revealed that 13 of the officers had advance copies of the transcript from the video portion of the exam that asked candidates the proper method to handle particular situations. This discovery prompted the department to void the video scores and rely exclusively on the written portion of the exam. Subsequently, four of the 

Samuel Williams, president of the Memphis Police Association, suggested that the officers did not steal the test. He told the Memphis Commercial-Appeal newspaper, "No one in rank and file was in a position to get the test. Someone in management gave it out; so it leaked out from the top, not from the bottom." 

The promotion of 106 officers to sergeant and lieutenant ended a four-year drought on promotions in a department that was short on supervisors. Judge McCalla's ruling, which does not affect newly elevated lieutenants, opens the sergeant's exam process to all eligible officers, not just those who sat for the 2000 text. An attorney for the officers who sued claimed that those officers who were originally promoted would now have an unfair advantage over those that were not promoted. 

Steve Urso, a spokesperson for the Wisconsin Professional Police Association, said the new plan would expedite cases and save money for both the unions and cities. A representative of the state municipal alliance claimed the proposal would 

The cost of public safety discipline cases has received increased media attention recently because of a scandal in Madison involving alleged use of cocaine by fire fighters. 

Prior to 1993 many police unions had contract provisions permitting discipline matters to be reviewed by an arbitrator. In that year a state appeals court ruled that police and fire discipline cases in villages and cities must be decided by the local police and fire commissions. 

The other house of the legislature must still approve the budget and the arbitration proposal. The legislature is currently in recess. 

HELD: A public employee alleging a violation of the right to free speech must establish that the speech involves a matter of public concern. If the speech does involve a matter of public concern, the public employee's interest in speaking freely must be balanced with the employer's interest in efficiently providing public services. In this case, the first part of the test is not met. Hasty's remarks about Clark's drinking did not touch upon a matter of public concern. Hasty admitted that his comments to the personnel director were blurted out and that he did not intend to make an official report. He likewise emphasized that Clark's actions 

Supreme Court update 

HELD: A public employer may escape liability by proving that he would have taken the same adverse employment action even in the absence of the protected First Amendment conduct. The question presented here is whether it would have been objectively reasonable for a public official to conclude that terminating Gonzales' employment did not violate his rights under the First Amendment because the altercation with a shoplifter would have caused his termination independent of the testimony before the grand jury. A review of the record reveals that Gonzales has presented no evidence suggesting that the constable's investigation was incomplete, bias, or unworthy of belief. Likewise, evidence revealed that Gonzales' decision to draw his weapon on the unarmed shoplifting suspect violated department policy and that excessive force was used. Constables from other precincts submitted affidavits stating they would have terminated Gonzales' employment based on his behavior. In light of this evidence, a reasonable public official would have believed that the decision to terminate Gonzales' employment would not have violated clearly established constitutional rights because the same action would have been taken even if Gonzales had not testified against Castillo before the grand jury. The constable is entitled to qualified immunity and summary judgment with respect to the First Amendment claim. Reversed for employer. [Gonzales v. Dallas County, Texas, 249 F.3d 406 (5th Cir. 2001)] 

HELD: The Age Discrimination Employment Act (ADEA) prohibits job discrimination against qualified individuals who are at least 40 years of age. Where there is no direct evidence of discrimination, a plaintiff must establish a prima facie case that gives rise to a rebuttable presumption of age discrimination. The burden of proof then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. If this burden is met, the initial presumption disappears and the burden shifts to the plaintiff to demonstrate that the employer's reasons are mere pretexts. Here, the town stated that it offered the chief's job to Morris instead of Mahaven because Morris was senior in rank to Mahaven, had voluntarily assumed the duties of police chief, and being the more ambitious candidate, was perceived as doing a good job as acting chief. Also, Mahaven had never expressed an interest in the position. These are legitimate, nondiscriminatory reasons for choosing Morris over Mahaven. Mahaven has failed to place any evidence in the record to show that these reasons are unworthy of belief. Mahaven argued that while Morris was senior in rank, he was senior in time on the force. He also alleged that at least one of the town supervisors referred to the fact that Mahaven received a pension from the state police and did not need the money that a chief of police earns. None of these allegations constitutes evidence of age discrimination. Mahaven has simply failed to provide any evidence that would enable a jury to determine that age was a determinative factor in the decision to fill the position of police chief. Summary judgment for township. [Mahaven v. Pulaski Township, Pennsylvania, 139 F.Supp.2d 663 (W.D. Pa. 2001)] 

HELD: The department collective bargaining agreement sets forth a grievance procedure. A grievance is defined as a disciplinary action, a charge of favoritism or discrimination, interpretation or application of department rules, or matters relating to the interpretation of the contract. In this case, Lucas did not sue her employer or her supervisor. In fact, she had no grievance against the department, being quite satisfied with the manner in which the theft allegations were handled. The department took no disciplinary action against her because of the underlying incident of alleged theft. The suit in this case is against fellow police officers. Lucas did not bring this suit because of the dispute regarding the cost of the breakfast items but because of the fellow officers' alleged overreaction to the dispute. The controversy centers on whether the officers defamed Lucas and inflicted emotional distress upon her. The fact that the parties are all police officers does not change the nature of the controversy. It is irrelevant that the department has in place a grievance procedure, as this is not the type of controversy to which that procedure applies. Trial court erred in concluding that the grievance procedure governs this case. Reversed for complaining police officer and case reinstated for further proceedings. [Lucas v. Riordan, 771 A.2d 270 (Conn. Ct. App. 2001)] 

HELD: Illinois statute provides that a pension will not be paid to "any person who is convicted of any felony relating to or arising out of, or in connection with, his service as a policeman." The question presented in this case is whether Devoney's conviction related to his position as a police officer. In construing a statute, the statutory language is the best indicator of the drafters' intent, unambiguous terms are to be given their plain and ordinary meaning. Devoney's actions in entering into the scheme to defraud others went beyond the single act of an individual who was off duty. His conduct violated an Illinois statute that states that it is the duty of every policeman to report crime. The public demands faithfulness from police officers to their duty to report and arrest others involved in criminal activity. The purpose of the pension penalty is to deter public officials from breaching the public trust. In this case, Devoney had a specific duty to arrest individuals who commit crimes. His failure to arrest his two co-conspirators while 

HELD: On appeal, the city acknowledges that it does not seek to revisit the merits of the arbitrator's conclusion that it was required to consider the seniority of the bargaining unit employees in making its selection. Rather the city claims it only authorized the arbitrator to declare the rights of the parties with respect to future appointments and that the arbitrator's remedy was in excess of his authority. The city's claim ignores the fundamental principle that the arbitrator's authority is defined by the parties' arbitration agreement or by their joint reference of issues to be decided. In the absence of agreement as to the issues, the parties' underlying agreement controls. The city's unilateral position on the framing of issues is of no importance. The grievance pursued by the union alleges that the city violated the seniority requirement of the labor contract and demanded adherence to the seniority principle. It also sought a make whole remedy for those twelve inside employees. Implicit in the award of the arbitrator 

HELD: Under New York law judicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law. A penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion. This calculus involves consideration of whether the impact of the penalty on the individual is so severe that it is disproportionate to the misconduct, or to the harm to the agency, or to the public in general. Courts have no discretionary authority or interest of justice jurisdiction in simply reviewing the penalty imposed by a police commissioner. In matters of police discipline, great leeway must be accorded the agency heads determination concerning the appropriate punishment for it is that individual, not the courts, who is accountable to the public for the integrity of the police department. In Kelly's case, his misrepresentation to authorities not only undermines his credibility as a law enforcement officer but also could have jeopardized public safety. The level of penalty imposed by the police commissioner did not shock the judicial conscience. Once the facts of the case are established, the record on which the penalty was assessed is no longer subject to court review. Similarly, Meagher's forfeiture of ten vacation days is not so disproportionate as to shock one's sense of fairness. While his partner forfeited only five vacation days as part of a plea arrangement, Meagher should have anticipated the possibility of a harsher penalty in opting for an administrative trial. Sentences handed out after trial are likely to be more severe than those imposed in connection with a plea. Lower court erred in not affirming the agency's level of discipline. Reversed for police department. [Kelly v. Safir, 747 N.E.2d 1280 (N.Y. 2001)]