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Volume 20, Number 5 

Supreme Court to examine scope of disability law 
Adhering to tradition, the U.S. Supreme Court opened its 2001-2002 term on the first Monday in October. On the court's docket are two matters seeking interpretation of the Americans with Disabilities Act (ADA). While neither case involves public safety personnel, the decisions in both cases could greatly affect the application of the ADA to the police and fire services. 

In the first case, Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, No. 00-1089, the justices are being asked to determine whether an impairment that precludes an employee from performing only a few of the required job tasks qualifies as a "disability" under the act. The U.S. Court of Appeals for the Sixth Circuit found that an assembly line worker who suffers from carpal tunnel syndrome fit the statutory definition of being disabled. The employer unsuccessfully argued that the appeals court misinterpreted the statute and ignored prior case law holding that the inability to perform a narrow range of jobs is not the equivalent of the "major life activity" of "working." 

If the high court upholds the ruling, public safety agencies may have to grant ADA rights to job applicants if a physical or mental disability prevents them from performing some, but not all, 

 of the essential elements of the job being sought. Such a holding would increase the burden on an employer to defend the validity of selection criteria. The justices have scheduled oral arguments in November. 

In the other matter, U.S. Airways, Inc. v. Barnett, No. 00-1250, the Supreme Court is faced with the issue of whether a seniority system for job assignments must give way if the employer needs to make a "reasonable accommodation" for a disabled person. The U.S. Court of Appeals for the Ninth Circuit ruled that an injured airline cargo handler must be allowed to remain reassigned to the mailroom even though more senior employees normally would have first choice on the position. The airline argues that while the ADA states that reassignment is one type of "reasonable accommodation," bucking an established seniority system essentially grants a preference to the disabled employee. 

Given the wide use of seniority in public safety agencies, an affirmation of the lower court ruling could produce disharmony if a police officer or fire fighter were denied an assignment because the employer was accommodating a disabled but more junior employee. 

Sept. 11 tragedy producing effects on police outside NYC 
Already saddled with personnel vacancies because of a shortage of quality applicants, the nation's police departments are facing further manpower reductions. Why? Police officers who are members of military reserve units are being called to active duty. And no one knows exactly how long they will be gone. Additionally, many officers may experience substantial pay cuts while police agencies, large and small, scramble to staff  not only normal assignments but also the extra work brought on by anti-terrorism efforts. 

Literally from Maine to California police officers who are members of military reserve units are receiving notices to report for active duty as part of President Bush's call-up of 50,000 reservists. Small departments could be hardest hit as activation of only one officer has a substantial effect on work schedules. For example, Westbrook, Maine, a 
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department of about three-dozen officers, has already lost one to the activation and expects to lose another. Meanwhile, the Los Angeles Police Department (LAPD) reports that upward of 600 LAPD officers are reservists subject to a call to duty. Over 90 officers on the 2,600-member Phoenix Police Department can possibly be activated while 10 of Albuquerque's 43 reservists are already gone. Houston employs 85 reserve members but only a few have been called up so far. 

The call-ups create a level of uncertainty for police administrators. Federal law requires reservists be given their old jobs back upon deactivation. Thus, given the well-documented shortage of police applicants nationwide, hiring permanent replacements seems unlikely. While reservists can be activated for up to two years, most assignments are expected to be far shorter. Increased use of overtime is likely to be the primary response of police agencies in covering their personnel shortages. The nation's economic slowdown may mean less tax money available to cover rising overtime costs. 

For officers, the situation is also stressful. Not only are they being separated from their families, but some may lose substantial pay. Although individuals will be paid by the federal government while on duty, a soldier's pay pales in comparison to the wages of most police officers. A Riverside, California, detective who has joined his activated Coast Guard reserve unit reportedly faces losing $4,000 per month. By California law, he must receive the difference in the two salaries for 30 days. After that period, the employer is under no legal obligation to continue to pay the differential. In other states, officers may completely lose any normal 

 compensation since they are not working for the department. 

Other effects are less obvious. One Houston officer reportedly will miss sitting for the sergeant promotion examination, as it will be administered during his absence from the department. The exam is given only every two years. Similarly, seniority disputes may occur when the reservists resume their police positions; will military time count as department time for purposes of shift bidding, days off, and the like? 

Last month, in an effort to assist the New York Police Department (NYPD) in providing law enforcement services, police agencies from Providence, Rhode Island, to Fort Worth, Texas, loaned officers to the city. Several hundred volunteer officers, wearing their own department uniforms and driving department vehicles, have assisted the NYPD in a variety of assignments from directing traffic to providing security at the United Nations. Officers worked 12-hour shifts to spell weary the NYPD personnel. 

The District of Columbia, also within sight of a terrorist attack, is experiencing unusual policing challenges as well. In the aftermath of the attacks, heightened security at the U.S. Capitol has led some police officers to earn more overtime in a single pay period than they had earned all year. Capitol police are working twelve-hour shifts, six days a week. This schedule is resulting in 30 hours of overtime a week for some officers. Shortly after the attack some of the agency's division were assigned to work 16-hour shifts, resulting in almost 50 hours of overtime a week! Police union officials are concerned that the long workdays without adequate sleep are exhausting the 1,400-member force. 

Flag flap erupts in Florida 
In what may be recorded as one of history's worst examples of bad timing, a Palm Beach County, Florida, deputy sheriff is facing discipline for opposing the removal of an American flag patch from department uniforms. 

Earlier this year, the executive staff of Sheriff 

 Ed Bieluch decided on new uniforms for deputies. Part of the change included removal of the flag patch worn on prior uniforms because it endangered the deputies. The patch reportedly reflected light. In response, deputy Ed Manak prepared a petition and form letters asking other deputies to urge the sheriff 
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to keep the patch. 

Disciplinary action was instituted against Manak on the grounds that the letters were filled with misrepresentations and were distributed on duty contrary to department regulations. 

"This has nothing to do with the flag," a department spokesman said. "It has everything to do with distribution of literature in the department 

 that had false information." 

The department has restored flags to the front and back of patrol vehicles and permits a flag pin to be worn on the uniform. 

While local politicians jockey for position on the flag issue, Manak awaits disposition of the administrative charges. Two of the allegations are fireable offenses under department rules. 
Litigation 

Supreme Court update 

 his wearing a pin of a cross on his uniform. In another Texas case, Serna v. City of San Antonio, Texas, No. 01-196, the court leaves intact a decision that a retaliatory transfer of a police officer without loss of pay and benefits was not an actionable violation of the officer's constitutional rights. 

Finally, in the companion cases of Oden v. Oktibbeha County, Mississippi, No. 00-1927, and Bryan v. Oden, No. 01-255, the high court's inaction leaves standing a lower court ruling that punitive damages are not available to a deputy sheriff who brought a racial discrimination claim after he was not promoted to chief deputy. Lower court found that while the personal staff exemption contained in the Civil Rights Act of 1964 might excuse the sheriff from liability, he did not raise the defense at trial in a timely manner. Thus, a monetary damage award was appropriate. However, punitive damages are not available for constitutional violations when the sheriff is sued in his official capacity. 
In addition to the court's actions reported elsewhere, the justices decided not to review a series of matters that had stacked up over the summer. Denied consideration was Freyesleben v. Fairfax County, Virginia, No. 00-1927, wherein a police officer was dismissed from the force because of his choice of friends. Lower federal courts ruled that the relationship did not fall under the protection of the First Amendment because the constitutional right to associate does not extend to mere social relationships. Also failing to win the justices' attention was Mazza v. Bratton, No. 01-45, an ADA case wherein a probationary police officer who was out sick for ten months was terminated. Lower courts dismissed his ADA claim. The Supreme Court declined Mazza's offer to examine the relationship of sick leave and the ADA requirement of reasonable accommodation. 

Losing out on a review was AFSCME Council 15 v. Bridgeport Guardians, Inc. Here, a police union unsuccessfully challenged certain aspects of a court-approved consent decree that settled a discrimination suit brought by black police officers. The review rejection leaves in place the court's modification to the discipline process contained in the collective bargaining agreement. Also, failing to gain court consideration was Daniels v. City of Arlington, Texas, No. 01-187. The Supreme Court leaves in place the discharge of a devoutly religious officer who was terminated after failing to adhere to a department rule that prohibited 

Cases of interest 

Overtime 
Henchy, a canine officer, filed suit against the city alleging that he had not been sufficiently compensated for the overtime hours worked in caring for his dog. The city moved for summary judgment on the grounds that the claim was barred by the statute of limitations and by the existence of a fair and binding agreement between the city and the officer regarding compensation for dog care. 

HELD: Under the Fair Labor Standards Act 
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(FLSA) an action for unpaid overtime compensation normally must be commenced within two years after the cause of action accrues. A separate cause of action for compensation accrues at each regular payday immediately following the pay period during which the service was rendered. Accordingly, in this case, Henchy's claim for overtime earned within the two years immediately prior to his filing of suit is timely. However, he also seeks compensation for three years worth of work prior to that time on the grounds that the city committed a continuing violation in its failure to compensate him. The continuing violation theory is an exception to the general rule of when the statute of limitations begins to run in a pay discrimination action. However, this claim is not a pay discrimination claim; this is a claim for overtime compensation. Under the FLSA, repeated failure to properly compensate employees for overtime is not treated as a continuing violation but as a repeated violation. Accordingly, the continuing violation theory does not support a claim beyond the two-year limitation period. Henchy counters that the statute of limitations should be equitably tolled based on the city's conduct. He argues that the police chief repeatedly assured him that the overtime compensation provided was proper when it was not. Additionally, he claims that the city failed to display a poster apprising employees of their minimum wage and overtime rights as required by federal law. Every federal statute of limitations includes an equitable tolling doctrine. Fairness dictates the tolling of the statute of limitations if a defendant actively misled a plaintiff, if the plaintiff was in some extraordinary way prevented from asserting his rights, or if the plaintiff asserted his rights mistakenly in the wrong forum. Here Henchy alleges the police chief repeatedly assured him that the overtime compensation being provided was proper. These allegations are sufficient to defeat a summary judgment on the statute of limitations question. Additionally, Henchy is correct. Federal regulations require all employers to display posters advising employees of their FLSA rights. The regulations further provide that an  employer's failure to post the required notice tolls the running of any period of limitations. The city further contends that even if the statute of limitations does not bar the claim, there is an agreement between the city and Henchy regarding his compensation for caring for the dog. While courts normally enforce contracts made by parties, it has long been recognized that an employee's right to overtime pay under the FLSA is non-waivable by contract or otherwise. Prior case law provides, however, that the time police officers spend in caring and feeding of their dog need not be compensated at the same rate as the time they spend actively working as a police officer. For this rule to come into play, the employer and employee must have agreed upon a different compensation. Here the city has not established whether such an enforceable agreement was in place and whether its method of calculating the dog care pay was a reasonable approximation of the amount of time spent on the task. Accordingly, summary judgment for the city is denied and further proceedings are ordered. [Henchy vs. City of Absecon, New Jersey, 148 F.Supp.2d 435 (D.N.J. 2001)] 

Dismissal procedures 
Duggan was an off-duty police officer who was nearly run off the road by an intoxicated driver. He began to pursue the drunk driver. Ultimately he and other officers stopped the vehicle. Police witnesses later testified that they saw Duggan take a $100 bill out of the suspect's purse. A sergeant was told of the action and ordered Duggan to empty his pockets. Duggan refused. Subsequently another officer saw Duggan take money from his pocket and drop it in the suspect's car. The police chief was called to the scene and ordered all officers present to submit written statements. He then ordered a major to conduct an internal affairs investigation. At the conclusion of the investigation the major recommended to the chief that the theft allegations be substantiated against Duggan. Duggan was subsequently served with a notice of major discipline and a copy of the internal affairs recommendation. 
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A few days later a pre-termination hearing was held before the chief. At no time during the hearing did Duggan or his attorney object to the chief's conducting of the hearing. Following the hearing the chief decided to terminate Duggan. Duggan appealed to the police board. At the pre-hearing conference Duggan was provided a notebook containing copies of his statements and that of other officers, the radio log, the internal investigation report, and other documents related to the investigation. Copies of the notebook were also provided to the chief and to the members of the police board. At the hearing Duggan contended the chief was biased against him and objected to the board having been provided the notebooks. He sought to have the board members remove themselves and have new board members appointed. The board denied the objection and subsequently upheld Duggan's termination. Duggan filed a federal suit claiming that his constitutional rights had been violated in the process of his termination. A federal judge found that no federal violation had occurred because of the presence of a satisfactory state post-deprivation remedy. The state claims that Duggan made were sent to state court. In a state court proceeding, Duggan asserted that his due process rights as guaranteed by the Alabama Constitution had been violated. Trial court refused to grant the city's motion for summary judgment on the matter. City appeals. 

HELD: The issue presented is whether permitting a biased decision maker to participate in a pre-termination hearing for a government employee violates the procedural due process rights of that employee guaranteed under the Alabama Constitution. The city argues that Duggan's procedural due process rights were not violated even if the chief of police were biased. The city claims that Alabama statute requires the pre-termination hearing be made by the appointing officer. Requiring an unbiased pre-termination hearing officer would make it impossible to follow this statutory mandate. Prior case law holds that procedural due process protected by the constitutions 

 of the United States and of the State of Alabama require notice and an opportunity to be heard when one's life, liberty, or property interests are about to be affected by governmental action. The U. S. Supreme Court has previously held that procedural due process violations that are potentially actionable are not complete when the deprivation takes place; the constitutional violation does not occur unless and until the state ultimately fails to provide due process. Procedural due process rules are meant to protect persons not from the deprivation but from the mistaken and unjustified deprivation of life, liberty, or property. Even assuming that the police chief was biased and that he was familiar with the case and involved in the investigation, Duggan is entitled only to procedural due process at some meaningful time and in a meaningful manner. In fact, in most cases the employee's supervisor is the official best informed about the cause for termination. If disqualification is required on the grounds that the supervisor cannot be wholly impartial, the removal procedure would become increasingly complex. The governmental interest in the expeditious removal of an unsatisfactory employee and the avoidance of the administrative burdens of conducting a mini-trial to educate an impartial decisionmaker outweighs the private interest of the employee in retaining employment as well as the risk of erroneous termination. Thus, the procedural due process guaranteed under the Alabama Constitution does not require an entirely neutral decisionmaker in an employment termination hearing. The rights of the employee are sufficiently protected at the post-deprivation hearing. Reversed and summary judgment for the city. [City of Orange Beach v. Duggan, 788 So.2d 146 (Ala. 2001)] 

Dismissal grounds 
In 1994, Witt was serving as the chief of police. An investigation was launched to examine serious problems in the department's hiring practices. The chief, who knew that he served at the will of the city manager, had discussions with the city manager because of the manager's 
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unhappiness with the police department. The two discussed the chief's retirement and ultimately the chief sent a memo in which he offered to resign. After further discussion, however, the chief sent another memo extending his retirement date 18 months in the future. In response to that memo the city manager sent the chief a letter agreeing to the later retirement date but setting out guidelines the chief would be expected to follow for the remainder of his tenure. The manager also sent a letter to the mayor and city council informing them that the chief was not retiring as soon as had been expected and that ground rules had been established under which the chief would work until his retirement. Not too much later, however, the city manager sent the chief a letter terminating him, explaining that a change in leadership was in the best interest of the city. The former police chief filed a breach of contract suit and a whistleblower claim against the city. Trial court allowed the chief to pursue the breach of contract suit but denied to admit evidence on the whistleblower claim. City appeals. 

HELD: The former chief of police testified that he knew he served in office at the will of the city manager but argued that the letter establishing guidelines for his position gave him an employment contract until his new retirement date. The city charter provides that the chief of police serves at the pleasure of the city manager and may be terminated at the manager's discretion. The charter further provides that no contract with the city is effective unless signed by the city attorney. Prior case law holds that in order for a contract with a city to be violated, it must comply with the city charter and ordinances. Agreements entered into by public bodies that fail to comply with this requirement are void. Thus, the alleged contract was void under Florida law and the trial court erred in permitting the case to proceed on a theory of breach of contract. The trial court also erred in not allowing the city to offer evidence that it had good reason to terminate the chief. This evidence was attempted to be presented in opposition to the whistleblower claim. Florida statute clearly permits 

 the city to offer such evidence and it was in error for the trial court to refuse its admission. Reversed for city on contract claim. City will be permitted to enter evidence at trial on the whistleblower claim. [City of Hollywood v. Witt, 789 So.2d 1130 (Fla. Dist. Ct. App. 2001)] 

Disciplinary procedures 
In 1994, the state and the Fraternal Order of Police (FOP), the bargaining agent for state troopers, entered into a labor agreement. Article 7 of the contract, entitled "Officers' Bill of Rights," provided guidelines for conducting investigations of non-probationary officers where the investigation could result in "discipline." Under Article 7, an internal investigation could not be conducted unless a report had been filed. Furthermore, before an officer could be interrogated by internal affairs investigators, he was entitled to a series of rights, including being advised of the nature of the complaint, the identity of the persons present during the interrogation, and to have counsel or an FOP representative present during the interrogation. In two different instances troopers became suspects in criminal investigations. In one case, a trooper was alleged to have been involved in an insurance fraud scheme while in the other the trooper was suspected of inappropriate sexual relations with an underage girl. In both instances, the troopers were interviewed by internal affairs investigators. The troopers signed a form acknowledging that they had been advised of their Miranda rights. Because the matter was a criminal investigation, however, the investigating troopers did not comply with Article 7 of the contract. Ultimately, adverse employment actions were taken against the two troopers. The troopers, through the FOP, filed grievances alleging that the department had violated Article 7 of the contract in conducting the interviews. Pursuant to the labor agreement the matter went to arbitration. The arbitration award sustained the grievance and ordered the state police to abide by Article 7 in all investigations and to pay back pay to the affected troopers. State police filed suit to vacate the arbitration award. Trial court 
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granted FOP's motion for summary judgment and ordered the award enforced. State police appeal. 

HELD: Judicial review of an arbitration award is extremely limited. A court is duty bound to enforce a labor arbitration award if the arbitrator acts within the scope of his authority and the award draws its essence from the collective bargaining agreement. Because the parties have contracted to have their dispute settled by an arbitrator, rather than by a judge, the parties have agreed to accept the arbitrator's view of the meaning of the contract. Thus, the court will not overrule the construction of a contract merely because the court's interpretation differs from that of the arbitrator. An examination of this award, however, reveals that it does not draw its essence from the contract. A portion of the contract states that the state police retain all powers, rights, and duties and responsibilities traditionally recognized as belonging to the state, except those specifically limited by the contract. Certainly, the state police have a statutory duty to investigate incidents of crime and enforce the criminal laws. That power can only be limited by the express and specific terms of the labor contract. Here, the police did not expressly agree that Article 7 would apply to criminal investigations. In fact, the very terms of Article 7 suggest that they apply to disciplinary proceedings, not criminal investigations. Other portions of the contract uphold this interpretation. For example, the contract acknowledges that the purpose of the agreement is to provide certain working conditions, rates of pay, and other terms and conditions of employment. Criminal matters are generally held to be outside the employment relationship. An employer cannot by contract give its employees procedural rights and benefits regarding criminal investigations. The fact that the employer in this case is the state police is immaterial. When the police are investigating the employee's criminal conduct, the police are acting under their statutory duty to enforce the laws, not as an employer. Thus, the arbitrator exceeded his authority when he held that Article 7 applied to criminal investigations. Likewise, the award 

 violates the public policy of the State of Illinois. Even if an arbitration award is derived from the essence of the agreement it will still be vacated if repugnant to the established norms of public policy. Requiring compliance with Article 7 in criminal investigations would contravene the state police's ability to investigate crime. That responsibility is well stated throughout the laws of the state. Inherent in effective law enforcement is the public policy favoring the exposure of crime. Contracting a way that responsibility is contrary to public policy. Reversed for state police and arbitration award vacated. [Illinois State Police v. Fraternal Order of Police, Troopers Lodge No. 41, 751 N.E.2d 1261 (Ill. App. Ct. 2001)] 

Exhaustion of remedies 
On June 28, 2000, the police chief presented a letter to the safety board setting forth disciplinary charges against Doughty and requesting his dismissal from the force. The following day the board met and considered the request. The minutes from the meeting reflected that two board members recommended that the board "approve" the request to dismiss Doughty. The following day the board sent Doughty a letter advising him that it had received a request of dismissal and told him he had a right to request a hearing within five days. Doughty made a request for the hearing and after it was initially scheduled, it was continued several different times. Before any hearing was held, Doughty filed suit seeking an injunction. In his suit he alleged that he had been fired without a hearing in violation of Indiana statute. Following the filing of the suit the board amended its minutes to reflect that the board had "acknowledged" rather than "approved" the letter requesting Doughty's dismissal. Trial court granted Doughty's request for an injunction and concluded that he had indeed been dismissed without an appropriate hearing. He was ordered reinstated with back pay. The police board appeals. 

HELD: Indiana statute provides that before a member of a police department may be dismissed 
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from the force, the safety board shall offer an opportunity for a hearing. The officer must request the hearing no more than five days after the notice of the dismissal. The statute further provides that an officer who has been dismissed may appeal the decision to the trial court but no other decision of the police department is subject to appeal. In this case the safety board argued that it did not terminate Doughty at its initial meeting. In fact the board claims that because of the continuances, it has yet to rule on Doughty's appeal. Thus, the trial court lacks jurisdiction to consider the matter because Doughty has not exhausted his administrative remedies. Doughty claims that the minutes that showed that the request to terminate him had been "approved" established that he indeed had been terminated within the meaning of the law. The record reflects, however, that Doughty continues to be listed on the rolls of the police department, receives health benefits, and holds all other indices of membership on the department. Further, the letter he was sent regarding the proposed termination specifically states that the board had received a request for dismissal. It did not inform him that the board had approved a resolution dismissing him from the service. The record supports the position that Doughty was not terminated on June 29 and the administrative hearing on the merits of the charges has never been held. Lacking such a hearing, it follows that Doughty has failed to exhaust administrative remedies. Trial court lacked jurisdiction to grant an injunction or to order Doughty back to work. Reversed for safety board. [Hammond Board of Public Works and Safety v. Doughty, 753 N.E.2d 97 (Ind. Ct. App. 2001)]  Department policy, in order to receive treatment the officer had to submit to a drug screen. Maher willingly gave a urine specimen as part of the drug screen. Subsequently, the specimen tested positive for cocaine. Dismissal proceedings were instituted against Maher. Maher contended that the positive test was the result of the Lidocaine, not cocaine use. An expert toxicologist testified that Lidocaine would not produce the same results on a drug screen as cocaine. Other witnesses testified in Maher's behalf regarding his character as a police officer. The civil service commission upheld the dismissal. Former officer appeals. 

HELD: Under Louisiana law, an appellate court must give deference to the factual findings of the civil service commission. In addition, the court should not modify the commission's finding that the disciplinary action is both based on legal cause and commensurate with the infraction unless it is determined to be arbitrary, capricious, or characterized by abuse of discretion. Legal cause exists whenever an employee's conduct impairs the efficiency of the public service in which the employee is engaged. Arbitrary or capricious can be defined as lack of a rational basis for the action taken. In this case the commission found that the police department had established the integrity of the testing process and also heard the uncontroverted testimony that Lidocaine could not produce a false positive test result for cocaine. These conclusions are clearly supported by the evidence and not manifestly erroneous or clearly wrong. The police department need not prove that Maher was a systematic cocaine user, or an addict, or even that he had intent to use an illegal drug. It must prove only that Maher tested positive for the presence of a controlled drug. One reason why drug tests are uniformly authorized for public employees such as police officers is their pivotal role in serving the public and insuring the public safety. A police officer who uses a dangerous drug such as cocaine not only commits an illegal act, but also compromises his integrity as a law officer. Since the officer presumably must procure his cocaine illegally, he 

Substance abuse testing 
Maher, a 25-year veteran police officer, underwent minor surgery. As part of the surgery the physician injected him with Lidocaine. He returned to work the next day. While working, he hit his knee on a car bumper. The following day he was in increased pain and went to his supervisor to report the injury. Under New Orleans Police 
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not only commits a crime himself but he cannot effectively perform his own duties relative to his drug supplier. Such an officer compromises the integrity of the justice system as well and is subject not only to impairment of judgment but also to extortion by his drug supplier. Given the uncontroverted scientific evidence, there is no indication of an honest error on Maher's part. The mere presence of an illegal drug in a police officer's or fire fighter's body is sufficient to warrant dismissal. Affirmed for civil service commission. [Maher v. New Orleans Police Department, 788 So.2d 1250 (La. Ct. App. 2001)]  the court must decide whether it has competent and sufficient evidence to make this determination. The crux of the case consisted of the polygrapher's report and testimony. The trial court, on appeal, found that the Louisiana rule requiring the exclusion of polygraph evidence in criminal trials did not require exclusion in other proceedings. This hard-line rule in a criminal case is understandable given there is no consensus that polygraph evidence is reliable. In fact, the scientific community remains extremely polarized about polygraph reliability. While the machine appears to produce straightforward and reliable physiological measurements, the examiners method of questioning, as well as his or her interpretation of the results, may not. The individual skill and training of examiners affects reliability of the polygraph. There is no known physiological response that is unique to deception and physiological measures used by polygraph tests are sensitive to a host of factors other than deception or criminal activity. Determining "the truth" is sacred ground that has traditionally been reserved for the fact finder. Allowing an expert in lie detecting to testify as to whether a witness is telling the truth imports the danger to supplant, rather than assist, the fact finder in its major function. Essentially, polygraph testimony amounts to credibility determination, impliedly based on character or truthfulness. The Louisiana code of evidence provides that character evidence is generally inadmissible to show that a person acted accordingly. In this case the polygraph test results were introduced to directly attack Evans' credibility, namely to prove that he lied when he said he did not divulge the deceased's identity as an informant to an unauthorized person. Admitting polygraph evidence on this crucial question would violate the Louisiana rule of evidence regarding one's character and reputation. Without the polygraph evidence the civil service board did not possess sufficient cause to terminate Evans. Reversed for officer and ordered reinstated to his position with back pay. [Evans v. DeRidder Municipal Fire and Police Civil Service Board, 789 So.2d 752 (La. Ct. App. 2001)] 

Polygraph 
The son of Evans, a police officer, and another individual were involved in a drug-related murder. An investigation suggested that prior to the killing, Evans had told his son's accomplice that the victim had provided information to the police in past cases. As part of the investigation Evans was ordered to take a polygraph. The polygraph examiner subsequently concluded that Evans had not told the entire truth on whether he had divulged confidential information to unauthorized people. Based on the polygrapher's report, the chief of police recommended that Evans be dismissed from the force. Evans appealed his dismissal to the civil service board. The board, substantially relying on the polygrapher's testimony, unanimously found that the violation had occurred and upheld the dismissal. The former officer appeals claiming the board erred in admitting the polygrapher's expert opinion into evidence. 

HELD: In Louisiana, a civil servant can only be dismissed for cause. Legal cause for disciplinary action exists if the facts found by the civil service commission disclose that the conduct of the employee impairs the efficiency of the public service. The burden of proving legal cause is on the employer. If Evans revealed the name of the confidential informant to unauthorized persons then legal cause would exist to terminate him. However, 
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Transfer 

 an arbitrator's authority. While in this case the award is couched in terms of pay differential, the real issue is the question of assignment. Even under the collective bargaining agreement the city reserves all regular and customary management prerogatives. The contract prohibits an arbitrator from making a decision that abridges these prerogatives. Traditional Massachusetts law holds that decisions concerning deployment of police officers are precluded from collective bargaining. Vacation of arbitration award affirmed. [City of Boston v. Boston Police Superior Officers Federation, 753 N.E.2d 154 (Mass. App. Ct. 2001)] 
Galvin was a Boston police lieutenant who was assigned as acting day commander. Believing this position involved a captain's responsibility, Galvin filed a grievance seeking the salary differential between his pay grade and that of a captain. The issue was resolved in Galvin's favor and Galvin was compensated retroactive at the captain's rate of pay. Eight months later a captain was transferred to replace Galvin. Galvin remained in the division at lieutenant's pay. The following year the captain transferred to another position. Galvin was again assigned to the duties of day commander and, as a result of a second grievance, received the salary differential for the period he performed those duties. Some months later Gifford, also a lieutenant, was transferred to replace Galvin as acting day commander. Gifford served in that capacity until a captain was appointed on a permanent basis. Galvin, having returned to his former rank and pay of lieutenant, filed a third grievance. This grievance went to arbitration and the arbitrator awarded Galvin the difference in compensation that he would have earned if he had not been replaced by Gifford. The arbitrator found that Galvin should have been continued as the day commander until replaced by a captain. The decision purportedly was based on a provision in the labor contract requiring the city to follow civil service rules in making temporary assignments. Police department appealed and trial judge vacated the award on the grounds that it impermissibly intruded on the discretion of the police commissioner. The union appeals. 

HELD: State statute confers upon the police commissioner the power to appoint police department officers. The statute also recognizes that the deployment of personnel is a fundamental and customary prerogative of management. Similarly, prior case law holds that assignment of a police officer for temporary duty is a decision committed to the non-delegatible authority of the police commissioner and is not a matter for arbitration. Decisions relating to officer assignment are beyond 

Dismissal procedures 
Hanford, a city police officer, and another officer attempted to execute a warrant at a residence. Also at the residence was Joines, an individual known to be combative with the police. The previous day Hanford had expressed an interest in confronting Joines about some anti-police graffiti. After an initial struggle with the individual named in the warrant, he was arrested. When Hanford learned of Joines' identity, he confronted him about the recent vandalism complaints. During the course of the conversation Hanford removed his gun and badge and placed them in the patrol car, the same vehicle in which the arrested individual was sitting. Hanford then challenged Joines to a fight and used inappropriate abusive language. Joines declined and placed a call on his cell phone to the police department to complain about Hanford's behavior. Subsequently, Joines filed a complaint with the city regarding the incident. An internal affairs investigation was conducted. It was determined that Hanford had been untruthful in statements he made about the removal of the gun and badge and the threatening of Joines. Further, he had failed to use a micro recorder as required by department general orders. The chief of police terminated Hanford. He appealed to the city personnel board, which upheld the termination. The board concluded that Hanford had violated several general orders regarding standards on police courtesy, cassette recorder usage, 
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firearm safety, and appearance in uniform. The board further found that the department's progressive discipline policy had been properly followed by the chief. On review by the trial court, the court found that the termination was arbitrary and unreasonable, ruling that the city had failed to adhere to its policy of progressive discipline by abruptly terminating Hanford. Hanford was ordered reinstated. City appeals. 

HELD: In reviewing an administrative agency decision the evidence is reviewed in its entirety together with legitimate inferences there from, in a light most favorable to the agency. Missouri law limits the circumstances under which a court may review an administrative agency's decision. These grounds largely turn upon whether the agency acted unlawfully, followed unlawful procedures or engaged in an abuse of discretion. Hanford claims the board failed to follow the progressive discipline policy by immediately terminating him. He argues this was arbitrary and unreasonable. However police department general orders specifically state that an employee is subject to progressive discipline but also dismissal may be implemented for a relatively minor infraction. The penalty of dismissals is assessed against the employee's total work record. Further the policy states the dismissal may be based on a single infraction. Based upon the record it cannot be said that the board's decision was arbitrary or capricious. The board made specific findings that Hanford violated each of the department general orders, the board assessed the credibility of the witnesses and afforded Hanford appropriate due process rights. Under these circumstances the termination must be upheld. [Hanford v. City of Arnold, 49 S.W.3d 707 (Mo. Ct. App. 201)] 

 procedure as the prior contract had no grievance arbitration clause. When the parties could not reach an accord, an interest arbitration panel was selected to decide the issues. The police association submitted a proposed four-step grievance process that would address all grievable issues including disciplinary action. The town's proposal limited the grievance procedure to interpretation of the contract and disability issues. The township proposal specifically excluded disciplinary matters. The arbitration panel ultimately sided with the association and ordered establishment of a grievance procedure, including coverage of disciplinary actions. The town challenged the award in court but trial court upheld that portion of the award. Town appeals. 

HELD: Pennsylvania statute provides that no paid employee of the police force shall be suspended, removed, or reduced in rank "except in accordance with the provisions of this subchapter." The statute then sets forth a procedure for hearings and dismissals before a civil service commission. The city argues that the statute contains the exclusive means of reviewing disciplinary matter. The arbitration panel, however, granted a grievance procedure in the labor contract. A court's review of an arbitration award is very limited, focusing primarily upon whether the arbitrators exceeded their powers. Prior case law holds that an arbitrator may not mandate that an illegal act be carried out and may require a public employer to do only that which the employer could do voluntarily. Thus, the question presented is whether the arbitration panel exceeded its authority when it mandated that the city adhere to a contract-based grievance arbitration procedure. A review of various state statutes reveals that police officers are accorded the right to bargain collectively concerning terms and conditions of employment. The manner in which officers are disciplined of course is a condition of their employment. Further, nothing in state law mandates that civil service hearings are the exclusive means of handling police disciplinary matters. The legislature has never passed a statute precluding 

Disciplinary procedures 
The town and the police association were parties to a collective bargaining agreement. When the agreement expired, the parties commenced negotiating on a new contract. Among the issues discussed was the establishment of a grievance 
October 2001 
Volume 20, Number 5 
police officer discipline from being handled by binding grievance arbitration. Accordingly, trial court properly determined that the arbitration panel was within its authority to approve the association submission to establish a police disciplinary process under the labor contract. Affirmed for police association. [Upper Gwynedd Township v. Upper Gwynedd Township Police Association, 777 A.2d 1187 (Pa. Commw. Ct. 2001)]  beginning wage to $30,000. Meanwhile, rank-and-file deputies will gain $4,500 in wage jumps bringing them to $33,000 to $46,000 annually depending on years of service. Corporals will see a $3,600 pay hike while sergeants will receive $5,300, topping out at $55,600. Lieutenants were awarded a $4,385 raise, moving their annual salary to $59,385. A new step plan for yearly raises in four percent increments is included in the pact. The changes in compensation came at the expense of hiring 32 additional deputies as initially sought by the sheriff. 
Settlements 

California 

Highway Patrol officers 

Chattanooga, Tennessee 

police officers 
Legislation signed last month grants California Highway Patrol (CHP) personnel something they have sought for many years: wage parity with police officers in the state's major law enforcement agencies. Beginning no later than July 1, 2006, CHP officers will receive compensation equal to the average of pay of officers in Los Angeles, San Diego, Oakland, San Francisco, and the Los Angeles County Sheriff's Department. Until then, an immediate 2.5 percent wage increase has been awarded. Another 2.5 percent boost will be forthcoming in July 2002. The increases come via a change in the retirement contribution made by the state. By increasing the government's share of the employee's pension contribution, take home pay will increase by the specified amounts. In July, 2003, a five percent pay boost is scheduled but employee retirement contribution will also be increased by the same amount. Currently, the average base wage of CHP officers is $51,396. Beginning personnel earn a base of $44,304 while veterans currently draw $62,880.  A tax hike will help fund pay raises for the 450 officers in Chattanooga. Along with other city employees, city council this month awarded police officers a $500 annual wage hike along with a two percent cost of living boost. 

Pinellas Park, Florida 

police officers 
A new labor contract makes Pinellas Park officers the highest paid police personnel in the county. The agreement between the city and the Pinellas County Police Benevolent Association will pay varying amounts to each police officer ranging as high as 11.4 percent over the life of the pact. A beginning police officer's base wage now goes to $32,240. City personnel hope that the increase in wages will end recruitment problems the police department has suffered in recent years. 

Topeka, Kansas 

police officers 
Topeka City Council last month approved a new three-year contract with the community's police officers. The officers will receive a six percent cost of living raise in 2002 and 2003. Later negotiations will determine the level of pay hike for 2004. About 300 officers are covered under the contract negotiated by Lodge 3 of the Fraternal Order of Police. 

Charlotte County, Florida 

deputy sheriffs 
A whopping $5,720 increase in starting pay for new sheriff's deputies highlights the new labor agreement between Charlotte County and the Fraternal Order of Police. The boost raises