January/February 2002

IUPA gains Los Angeles police union

After 16 months of negotiation, officials of the Los Angeles Police Protective League (LAPPL) and the International Union of Police Associations (IUPA), AFL-CIO, announced that the LAPPL would be joining that national police union. The affiliation makes the LAPPL the single largest police group in the IUPA. LAPPL President Mitzi Grasso joined IUPA President Sam Cabral in announcing the establishment of the new IUPA local effective December 19.

Cabral hailed the development as the latest step in a long-term drive to unite all law enforcement officers under one union. With the addition of the LAPPL, the IUPA now approaches a membership of 100,000 law enforcement and support personnel.

Speaking of the new connection with organized labor, Grasso praised the affiliation as a sign of power and optimism returning to officers of the LAPD. In addition to gaining membership rights in the IUPA, the LAPPL will become an active participant in the Los Angeles County Federation of Labor, an AFL-CIO umbrella group.

"The affiliation of the Los Angeles Police Protective League is a significant advancement for the police labor movement," Cabral said. "It is the goal of the IUPA to unite all law enforcement officers.
Representing the League means IUPA now represents officers in six out of the 12 largest U.S. departments. The year 2002 will continue to see us work on this goal, including major organizing efforts in the states of Florida and Texas."

Although among major jurisdictions only the Houston affiliate is the bargaining agent, IUPA has established a presence in most large police agencies. In recent months the union has been courting the Dallas Police Association.

Because of scandals in recent years, as well as the appointment of a federal oversight monitor, public support and police officer morale have declined in Los Angeles. A UCLA-USC study found that 57 percent of responding officers stated that they would leave the department if they could.

In January 2002, the LAPPL membership issued a vote of "no confidence" on Chief Bernard Parks. Parks is seeking appointment to a second term as the leader of the 10,000-member department. The city's independent police commission will decide in coming months whether to re-appoint Parks to a second five-year term.

The LAPPL, founded in 1922, serves as the bargaining representative for more than 9,000 LAPD officers below the rank of captain.

September 11 tragedy drives police deaths to 25-year high

The events of September 11th and the resulting deaths of officers at the World Trade Center (WTC) pushed the 2001 police line of duty death toll to 233, a 25-year high, according to data released in December by the National Law Enforcement Officers Memorial Fund (NLEOMF). The loss of 70 law enforcement officers at the WTC was the most ever to be killed in a single incident in the nation's history. One officer died at the Pentagon. The highest total deaths in a single year were 270 in 1974.

Even excluding the deaths of the 70 New York-area officers, a total of 163 deaths would still have been higher than the 151 in 2000. Police line of duty deaths have averaged 162 annually over the last decade.

Beyond the deaths due to the terrorist acts, nationwide 66 officers were killed by gunshots while 50 died in motor vehicle accidents. Another twenty-three officers were struck and killed by automobiles while outside of their own vehicles.

The Port Authority of New York and New Jersey, which has jurisdiction over the WTC, lost 37 officers on September 11, the most by any agency ever for a single year or in a single incident. The New York City Police Department suffered 23 deaths at the WTC.

New Jersey, where the Port Authority is headquartered, accrued 41 police deaths, while New York State lost 31. Texas saw 21 officers killed in the line of duty in 2001.

St. Petersburg officers vote to keep PBA

Despite an intense, hard-fought campaign, St. Petersburg, Florida, officers have rejected efforts by the Fraternal Order of Police (FOP) to oust the Pinellas County Police Benevolent Association (PBA) as their labor representative. The election, held earlier in January, saw the PBA prevail by a vote of 214 to 122. The Florida Public Employees Relations Commission called the election after 180 rank-and-file officers and evidence technicians filled out cards last year saying they wanted to switch unions. About 75 percent of eligible officers voted in the representation election.

The election has reportedly prompted the oft-times contentious PBA leadership to temper its aggressive stands. "Now's the time to mend the fences,"
said PBA executive director Bill LauBach. "We're going to continue to protect the interests of our members, and that requires us to be contentious at times. But we're not going to disagree just to disagree," he told the St. Petersburg Times newspaper.

The PBA immediately reversed course by canceling a vote of confidence election among its members regarding Chief Chuck Harmon, who has been on the job for only a month. "We decided that Chuck Harmon deserves a shot," said LauBach.

St. Petersburg officers are working under an expired labor agreement while negotiations continue.

Last year the FOP won the right to represent supervisors.

Golfing on duty leads to demotion

Oklahoma City officials have demoted a police officer who was caught playing golf on duty time. Michael Nard, an Oklahoma City lieutenant, has been reduced in rank to sergeant and transferred to a different division.

Nard is unlikely to play golf on duty again anytime soon as he has been assigned to work the 9:30 p.m. to 7:30 a.m. graveyard shift. As part of the discipline, Nard, 46, will be ineligible for promotion for ten years and must reimburse the city for 31 hours of leave he failed to document.

Police Chief M. T. Berry, in a letter to Nard, criticized his "indifference and cavalier attitude" and stated that Nard had "compromised the trust and responsibility" of a supervisor.

Nard and another officer were charged in November 2000 with multiple felony and misdemeanor counts of obtaining money by false pretenses for claiming they were working when they were golfing. Charges were subsequently dropped last October. The other officer has since retired.

Last September, Nard won a grievance and $70,000 in back after arguing that department officials had improperly suspended him without pay at the time of the incident. Ultimately, however, the police department disciplinary review board, following a hearing, issued a Class 3 reprimand, the most severe in the department's progressive discipline process.

Apparently no appeal of the discipline is planned.

Retention pay used in effort to keep officers

Improving pay scales as a means to keep incumbent officers from deserting a department for higher wages is a fairly common personnel practice. But the South Texas city of Brownsville is trying a different tact - paying of retention bonuses.

Brownsville City Council in December approved a plan that pays officers with one year experience a $2,000 bonus, those with three or more years $4,000, and officers with at least five years of tenure a $7,000 retention incentive.

City Manager Lanny Lambert said the department currently has 37 vacancies, partially caused by officers leaving to join higher paying federal agencies such as the Border Patrol, Drug Enforcement Administration, and U.S. Marshals Service.

Officers who accept the retention bonus must agree to not resign from the department until January of 2005. Breaking the agreement would result in the city recouping of the money by reduction of accrued vacation time and sick leave.

Litigation

Supreme Court update

In recent weeks the high court declined to review Lee v. McKenzie, No. 01-675. The justices' inaction leaves in place a lower court ruling that dismissal of a white deputy sheriff was racially motivated because it was done to placate the minority community.

Two matters of interest seeking review were filed recently. McLin v. Board of Police Commissioners of Metropolitan St. Louis Police Department, No. 01-755, concerns statements a police officer made at a workshop on police brutality and racism. While off duty, the officer publicly suggested that officers who were recruited from rural parts of the state lacked racial sensitivity. He also opined that these officers were "sissies" in high school but after putting on the police uniform became "the man they never were before." The department imposed a 15-day suspension for his comments. Lower courts found that the department's interest in harmonious operation of the police force outweighed the officer's free speech rights and upheld the discipline. The officer wants the Supreme Court justices to examine his First Amendment rights in the matter.

In City of Lynn, Massachusetts v. Thompson, No. 01-834, an arbitrator ordered a terminated police officer reinstated after finding that his incidents of alleged use of excessive force only amounted to conduct unbecoming an officer. The officer's actions resulted in the city paying two large monetary claims to injured citizens. The city successfully obtained a reversal of the ruling on public policy grounds but a state appellate court reinstated the officer after finding insufficient evidence of a clear public policy on the matter. The city is asking the Supreme Court to consider the case on the basis that the federal statute that prohibits deprivation of a citizen's constitutional rights is sufficient public policy to mandate termination of a physically abusive officer.

Disciplinary grounds

In 1997, the police chief issued general orders that prohibited officers from being interviewed by the media without his express authorization. Additionally, officers were prohibited from making public statements regarding private matters of the department as well as statements on matters of public concern that could lead to disruption in the department. Finally, general orders prohibited divulging department business to unauthorized individuals unless directed by the chief. In 1999, the local newspaper published a series of articles about community concern over two alleged sexual assaults. Kesseler was assigned to investigate the assaults. Subsequently, the newspaper published portions of a letter that had been sent to the police department in which the parents of one of the victims criticized Kesseler's investigative efforts. An internal investigation subsequently absolved Kesseler of any wrongdoing. Consequently, Kesseler told the newspaper reporter who had written the earlier articles that she had not done anything wrong and had not been disciplined by the department. Her comments were later published in the newspaper. Kesseler's supervisor asked if she had received permission to speak to the press and was advised no. Subsequently, Kesseler was suspended for one day without pay for talking to the newspaper reporter in violation of the department general order regarding disclosure of department business. The officer filed suitseeking one day's back pay on the grounds that the department rules controlling public speech violated the First Amendment. The department moves for summary judgment.

HELD: The First Amendment prohibits government restrictions on the right of its citizens to speak freely. Kesseler argues that the regulations are unconstitutional because they create an impermissible prior restraint on speech and grant the chief of police unlimited discretion to grant or deny permission to speak. A prior restraint rule limits, or conditions in advance, the exercise of protected
First Amendment activity. Such a rule, which forces a person to ask permission to speak, bears a heavy presumption against consti- tutionality. This is true because a prior restraint on speech kills potential speech before it happens and thus gives rise to far more serious concerns than could any single supervisory decision. In determining the validity of prior restraint on the speech of public employees, the Supreme Court has established a balancing test. First, restrictions on speech relating to matters of private interest are not subject to the same judicial scrutiny as those that seek to silence the employee, as a citizen, from commenting on matters of public concern. If the employee is speaking on a matter of public concern, such as issues relating to the political or social circumstances of the community, the government must show that the interest of both the potential audiences and a vast group of present and future employees are outweighed by the impact the speech has on the actual operations of the department. A restriction on such speech will not be upheld absent a showing by the government that it has reasonable grounds to fear that a serious evil will result if the speech is permitted. Here, the rules clearly require employees seek advance permission to speak as citizens on matters of public concern. The rules are not narrowly drawn; they require prior approval before an employee may make a public statement on any topic even remotely related to the police department. The rules inevitably stifle department employees in their roles as citizens. The all-encompassing ban necessarily works to deprive department employees of their First Amendment right, as citizens, to comment on matters of public concern, thereby depriving the public of information regarding matters relevant to public health and safety. Absent a showing by the department that it has a substantial interest in such a sweeping ban on employee speech, the police rules regulating speech must be struck down as violative of the First Amendment. The department has failed to demonstrate that the rules address any potential harm or advance any substantial governmental interest. Summary judgment for police officer. [Kesseler v. City of Providence, Rhode Island, 167 F. Supp.2d 482 (D.R.I. 2001)]

Handicap discrimination

Stone began working for the sheriff's department in 1974. Three years later he allegedly injured his back in a car accident while on duty. Nonetheless, he rose to the rank of sergeant and to the staff position of undersheriff before leaving the department in 1985. In that year Stone took a leave of absence in order to obtain employment with the Fraternal Order of Police (FOP). The sheriff's department extended his leave of absence on several occasions. In 1990, the sheriff advised Stone that a supervisory position in communications had become available. The sheriff assigned Stone to that position and requested that he return to work. Initially, the sheriff granted a delay in the reporting date but Stone subsequently wrote a letter stating that he was retiring instead of reporting to the position. During his entire career with the sheriff's department Stone also owned a construction company through which he built houses. A witness later claimed that his alleged disability did not appear to affect his ability to do construction work. In 1995, Stone left his position with the FOP amid allegations that he had misappropriated funds. In an effort to secure pension benefits he contacted the current sheriff and asked to be reinstated to his former position with the department. The sheriff told Stone that since he had resigned in 1990 he would have to pass the department's merit test before he could be considered for reemployment. Over the next couple of years Stone met with the sheriff to discuss the possibility of reemployment. The sheriff became concerned about Stone's possible return to the department due to the circumstances of his departure from the FOP. The sheriff finally decided that Stone could be considered for reemployment if he went through the merit commission procedures. Stone never took the merit test but rather filed suit under the Americans with Disabilities Act (ADA) alleging that his old back injury was a disability. He claimed that the sheriff's department violated the ADA by requiring him to take the merit test but did not impose a similar requirement on non-disabled officers who sought reemployment. The sheriff's department responded that Stone had not shown that he is covered by the ADA because he has not shown that he is disabled. Parties move for summary judgment.

HELD: When establishing a claim under the ADA an individual must show that he is an "otherwise qualified person with a disability." Disability can by established by showing a physical or mental impairment that substantially limits one or more major life activities, or having a record of such impairment, or showing that the employer regards the individual as having such an impairment. Major life activities are functions such as caring for oneself, performing manual tasks, walking, seeing, speaking, and working. The only major life activity Stone identifies in this complaint is his inability to work. He also contends, however, that he is disabled with respect to walking and sitting. Stone presents no medical evidence to substantiate any of these disabilities. His failure to provide the court with competent medical evidence dooms his claims since plaintiffs in ADA cases have the burden of establishing with medical evidence the existence of the alleged disability.  Self-serving affidavits without factual support will not suffice.  Likewise, he cannot establish a record of impairment.  A plaintiff establishes a record of impairment by showing that he has a history of or has been misclassified as having a mental or physical impairment that substantially limits one or more major life activities.  Once again no medical evidence is presented to establish such a record.  Summary judgment for sheriff’s department granted.  [Stone v. Sangamon County, Illinois, Sheriff’s Department, 168 F. Supp.2d 925 (C.D. Ill. 2001)]

Disciplinary grounds

In order to call attention to their demands for a new collective bargaining agreement and a pay raise, the fire fighters’ union and the police officer’s union held a picket outside city hall on the evening of the mayoral inauguration.  The union members demonstrated from about 7:00 PM until around 8:00 PM as guests and officials arrived.  During that timeframe individuals driving large trucks and private vehicles sounded their horns in support of the union pickets.  Several off duty police and fire fighters participated in the sounding of the horns from their private vehicles.  Around the time of the inauguration, Meaney, a police officer, borrowed his brother-in-law’s fuel oil truck and drove to city hall as the inauguration was taking place.  He repeatedly sounded the horn of the truck.  The following day the mayor asked the chief of police for a full report concerning the noisemaking and the union picket.  The chief determined that Meaney sounded the air horn during the inauguration.  The mayor told the public works superintendent to remove Meaney’s brother-in-law’s fuel company from the list of contractual snowplow services.  The mayor also made public statements about the air horn incident.  Ultimately, the police chief suspended Meaney for two days for disturbing the peace and for insubordination in connection with his protest actions.  Meaney appealed the suspension to the civil service commission, which overturned the disciplinary action.  He then filed suit against the chief of police, the mayor, and the city claiming a violation of his right to free speech, defamation, and injury to his reputation.  Parties move for summary judgment.
HELD:  Meaney alleges that he was retaliated against for exercising his First Amendment right to free speech.  The initial issue presented is whether Meaney’s sounding of an air horn at the union protest was protected by the First Amendment expression relating to a matter of public concern.  Meaney claims he sounded the air horn to show support for his fellow union brothers.  Such sounding of horns is a common activity at a union protest.  Because Meaney’s conduct was in connection with the union’s concerted activities, it was constitutionally protected under the First Amendment.  Because the horn blowing registers protest of the mayor’s policies toward the police union, the expression was related to a matter of public concern.  Even so, the interest of the city and the interest of the off-duty police officer must be weighed to determine whether the horn blowing is constitutionally protected. The facts established that the protest, although noisy, was at a reasonable hour and outside of city hall, in a public place most likely to draw attention to the union's concerns. Similarly, the police chief's own investigation found that while the air horn could be heard inside city hall, the noise was not so loud as to significantly disrupt the mayor's swearing in ceremony. Thus, the officer's interest in sounding the air horn as part of a union protest outweighs the defendant's interest in a quiet inauguration and preserving the peace. The jury can certainly find that Meaney's participation in the union protest was a motivating factor behind his suspension. Additionally, neither the mayor nor the chief of police are entitled to qualified immunity in this case. A reasonable person in a position of either the police chief or the mayor would recognize that picketers had certain constitutional rights. Neither official took reasonable steps to ascertain whether suspending Meaney would violate his constitutional rights. Common sense suggests that a mayor should be aware that suspending a subordinate for engaging in a public protest against him over a matter of public concern raises profound First Amendment concerns. To rule otherwise would immunize the mayor and would give high level officials a free pass to discipline subordinates who exercise their constitutional right to critique officialdom and protest. Meaney also claims that the comments the mayor made to the local newspaper defamed him. To make a cause for defamation an individual must show a false or defamatory communication of and concerning him, which is published or shown to a third party. The alleged defamatory statement must be factual assertions beyond mere opinions. The mayor's statement that officers had engaged in illegal activity and had tarnished the badge they wear were clearly opinions, not factual assertions. Rhetorical hyperboles are pure opinions not actionable in defamation. Summary judgment granted for police officer on First Amendment claim. [Meaney v. City of Woburn, Massachusetts, 170 F. Supp.2d 46 (D. Mass. 2001)]

Disciplinary grounds

Fihlman was a veteran New Orleans police officer who was responding to an emergency call. He had activated his lights and siren. He approached an intersection that was protected by a stop sign. He slowed as he came to the intersection and proceeded into the intersection where he suddenly collided with another police vehicle that was responding to the same emergency call. The department's accident review board conducted an administrative review of the incident. It found that Fihlman had stopped at the intersection and checked for traffic before entering the intersection. Nonetheless, the board classified the accident as preventable, finding that the officer had failed to yield right of way. As a consequence, the superintendent of police suspended Fihlman for ten days for violating department rules regarding maintenance of standards of service. Fihlman appealed the suspension to the civil service commission. At the commission hearing Fihlman was the only witness to testify. Instead of having the officer who investigated the incident testify, the parties agreed to stipulate that his accident report could be admitted into evidence. The accident report noted that Fihlman had failed to yield right of way but the "no violation" box was checked with regard to the driver of the other vehicle. No citations were issued in the matter. The civil service commission reviewed the documentary evidence and Fihlman's testimony and concluded that he acted reasonably and that he did not intentionally cause the accident. The commission found that the officer's vision was obstructed and, therefore, the accident was unavoidable. The commission overturned the suspension. The police department appeals.

HELD: An employee who has permanent civil service status cannot be subjected to disciplinary action except for cause expressed in writing. The employee may appeal such disciplinary action to the city's civil service commission. The burden of proof is on the city in such cases. The civil service commission has a duty to independently decide from the facts presented whether the appointing authority had good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed was commensurate with the dereliction. Legal cause for disciplinary action exists whenever an employee's conduct impairs the efficiency of the public service in which that employee is engaged. The court reviewing a civil service commission's determination cannot modify that determination unless it is arbitrary and capricious or characterized by an abuse of discretion. "Arbitrary and capricious" means there is no rational basis for the action taken. Here, the department argues that the commission acted arbitrarily and capriciously in reversing the ten-day suspension.   However, the department had the burden of proving to the commission by the preponderance of the evidence the factual basis of the disciplinary action against Fihlman.  The department called no witnesses to the hearing and merely stipulated to the details of the accident report.  Additionally, the department offered no evidence that Fihlman’s actions impaired the efficient operation of the public service.  The appointing authority simply failed to offer evidence to support the disciplinary action.  Hearing the record as a whole the court cannot say that the commission’s decision to overturn the suspension was manifestly erroneous.  Reversal of suspension for police officer affirmed.  [Fihlman v. New Orleans Police Department, 797 So.2d 783 (La. Ct. App. 2001)]

Defamation

A city police officer was alleged to have stalked a neighbor with whom he had previously conducted a romantic affair.  Tomkiewicz, a police lieutenant, was the lead investigator into the allegation.  The local newspaper published an article headlined “Cop Faces Stalking Charge.”  The text of the article discussed the officer’s plea bargain, including his suspension from the department.  A photograph accompanying the article was captioned “Officer KevinDehart was suspended without pay after he was charged with stalking a neighbor." The photograph, however, was not of Dehart but of Tomkiewicz. A photographer employed by the newspaper had taken Tomkiewicz's picture when he attended the court hearing concerning criminal charges against action disregard a reckless disregard for the truth. Actual malice is defined as knowledge that the published statement was false or as reckless disregard as to whether the statement is false or not. Reckless disregard for the truth is not established merely by showing the statements were made with preconceived objectives or insufficient investigation. Ill-will or spite standing alone do not amount to actual malice. The evidence at trial showed that the photograph of Tomkiewicz was made outside the courtroom along with the photograph of a half-dozen other individuals. The photographer tried to identify each of the subjects of the photographs. Confusion existed regarding the identity of each individual. The editor selected the photograph of Tomkiewicz because he mistakenly believed that it was a photograph of the offending officer. There is no evidence showing that the photograph was printed with actual malice. While a jury might reasonably find the may not recover for defamation unless he can show actual malice. The evidence does not establish such a malicious level of conduct on the part of the newspaper. Affirmed for newspaper. [Tomkiewicz v. The Detroit News, Inc., 635 N.W.2d 36 (Mich. Ct. App. 2001)]

Arbitrator's authority

Barlow was a police officer who was alleged to have committed criminal sexual conduct against a fellow employee. The county attorney declined to prosecute because the complaint was outside the statute of limitations. Nevertheless, the city fired Barlow. Barlow exercised his rights under the labor contract and demanded arbitration. At the arbitration hearing the complainant testified as to various acts of sexual harassment by Barlow while on duty. Nonetheless, the arbitrator determined that Barlow was entitled to reinstatement. Following his reinstatement as a police officer Barlow attended a sexual harassment training session and received a copy of the department's policy regarding sexual harassment. The policy explicitly detailed the behaviors that constituted sexual harassment. Three years later, another female member of the public filed a complaint against Barlow accusing him of harassing her and stalking her. The police chief held a news conference during which he showed Barlow's photograph and asked that anyone with complaints against Barlow contact the police department. In response, a number of women called the department to complain about Barlow's behavior toward them. Barlow was prosecuted on the original complaint but a jury found him not guilty. The prosecutor declined to pursue other complaints on the basis that they were outside the statute of limitations. After the acquittal the police department conducted an internal investigation and recorded complaints from more than thirty women. The city then hired an independent investigator to inquire into the complaints. This investigator interviewed several of the women and concluded that Barlow had engaged in numerous instances of sexual harassment and misuse of his authority as a police officer, all for the purpose of finding out personal information about women. Upon receiving the report the police chief terminated Barlow on the grounds that his behavior would compromise public confidence in the department and impair the city's efforts to prosecute crimes. Barlow grieved this termination. Following a hearing, the arbitrator found that on several occasions Barlow had engaged in sexually harassing activity. The arbitrator concluded that many of the complaints were stale and could not be used. Ultimately, the arbitrator determined that the useable complaints did not warrant outright dismissal and reduced the discipline to a suspension. The city appealed to vacate the award but trial court confirmed the arbitrator's decision. City appeals.

HELD: It is settled law in Minnesota that an arbitrator, in absence of any agreement limiting his authority, is the final judge of the law and facts, including the interpretation of the terms of any contract, and his award will not be reviewed or set aside for mistake of either law or fact in the absence of fraud, mistake in applying his own theory, misconduct, or other disregard of duty. However, a court may not enforce a collective bargaining agreement that is contrary to public policy. The public policy doctrine derives from the basic notion that no court will lend its aid to one who founds a cause of action upon an immoral or illegal act, and is further justified by the observation that the public's interests in confining the scope of private agreements to which it is not a party will go unrepresented unless the judiciary takes account of those interests when it considers whether to enforce such agreements. The public policy exception is narrowly defined. A court may set aside an arbitration award only if the labor agreement contains terms that violate public policy or the arbitration award creates an explicit conflict with other laws and legal precedence. It is indisputable that Minnesota's public policy proscribes invasion of privacy, stalking, harassment, and sexual harassment. Various criminal statutes speak to those behaviors. Similarly, the actual licensing of peace officers allows for disciplinary action and revocation of license for those who engage in sexual harassment.  Further, federal law mandates that municipal employers prevent sexual harassment in the work place.  Given the strong, clear public policy against sexual harassment, and the affirmative duty of employers to implement a policy against sexual harassment, and the unique opportunity of a police officer with a lengthy history of violations of that policy to commit similar violations of the future, an arbitrator’s decision under these extreme facts violates public policy and must be vacated.  Although an arbitration award should be respected as being the product of the contractual agreements of parties, in criminal cases such as this public policy must be given precedence.  Barlow repeatedly demonstrated a behavior of engaging in sexual harassment despite attempts to terminate his employment and prosecute him criminally.  To allow him to continue to work as a police officer is tantamount to exempting the city from its duty to enforce its own policy and the public policy against sexual harassment.  Arbitrator’s award vacated.  [City of Brooklyn Center v. Law Enforcement Labor Services, Inc., 635 N.W.2d 236 (Minn. Ct. App. 2001)]

Garrity rights

Chavarria was a 25-year-old corrections officer with one year of experience working at the county detention center.  Upon returning from vacation he was asked to report to the center administrator.  He was informed that he was being placed on administrative leave pending allegations of sexual misconduct against him.  He was also told to contact a deputy sheriff in order to provide a statement.  The supervisor told Chavarria not to return to work until he had given the deputy his statement.  He further instructed Chavarria to turn in all county property, including his badge and uniform.  Chavarria was reminded of detention center policy that required all employees to truthfully answer questions directed to them within the scope of their employment.  The officer’s manual also stated that employees might be required as a condition of employment to take a polygraph examination and refusal to take such a test might result in disciplinary action, including termination.  Chavarria later stated that he felt obligated to be interviewed and submit to the polygraph test because he was afraid he would lose his job if he did not.  Subsequently, he was interviewed by investigators and took the polygraph examination.  Two different times Chavarria asked if he needed to have a lawyer present and the investigators stated that he did not at that time.  Following the polygraph examination Chavarria was read his Miranda rights and then provided another statement.  He later testified that he waived his Miranda rights because he felt his job was at stake.  Ultimately, criminal charges were brought against Chavarria for criminal sexual penetration of a female inmate.  At the criminal trial Chavarria sought to suppress the incriminating statements he had made during the course of the investigation.  The trial court ordered the statements suppressed and the state appeals.
HELD:  The Fifth Amendment to the Constitution provides that no person shall be compelled in any criminal case to be a witness against himself.  Case law holds that public employees may not be required to waive their Fifth Amendment privilege on pain of losing their jobs.  Public employees may be compelled to respond to questions about the performance of their duties but only if their answers cannot be used against them in subsequent criminal prosecutions.  The state has a choice between either demanding a statement from the employee on job related matters, in which case they cannot use the statement in a criminal prosecution, or prosecuting the employee, in which case they cannot terminate the employee for refusing to give a statement. Here, the court must decide whether Chavarria's fear of loss of employment prevented him from exercising his constitutional right to remain silent. For the Fifth Amendment privilege to apply, fear of loss of employment from the exercise of the constitutional right to remain silent must be subjectively real and objectively reasonable. The two part objective/subjective test must be used when determining whether a public employee's statements are involuntary and inadmissible in evidence when it is asserted that the employee was coerced into waiving his Fifth Amendment right through threat of losing his job. Chavarria's fear of job loss was understandable. He was instructed to turn in his property and to talk to a deputy. He was instructed to take a polygraph. The evidence shows that the state demanded Chavarria to give statements on pain of dismissal if he refused. In this situation the state cannot now use those same statements against him in criminal prosecution. This holding does not prevent government employers in New Mexico from requiring an employee to answer job-related questions or face termination. Rather, the employee's statements may not be used in a criminal prosecution. Suppression of evidence affirmed. [State of New Mexico v. Chavarria, 33 P.3d 922 (N.M. Ct. App. 2001)]

Settlements

Hoffman Estates, Illinois

police officers

In December, Hoffman Estates village officials approved a new three-year labor agreement with its police union, the Metropolitan Alliance of Police. The 76 officers covered by the pact received a 4.5 percent pay hike on January 1. The next two annual raises will be 4.25 percent. Other provisions allow officers to work six designated holidays in order to accumulate compensatory time. A change in sick leave policy now permits officers to string together sick days for either themselves or to care for family members. The previous contract did not permit multiple sick day usage to care for family members.

Punta Gorda, Florida

police officers

Officers in Punta Gorda have agreed to extend their three-year contract to a fourth year. In exchange, officers who obtain satisfactory performance reviews will garner seven percent raises instead of the previously agreed to four percent boosts. The contract amendment also increases starting pay to $28,088 and pushes top of scale wage to $37,747. The city enacted the amendments to keep department pay competitive with surrounding agencies. Twenty-one non-supervisory officers are covered by the change.

Washington, D.C.

police officers

One of the longest negotiations in the District's history has culminated in a new labor contract for officers on Washington's Metropolitan Police Department. The 3,300 officers represented by the Fraternal Order of Police Labor Council will see a four percent wage boost retroactive to October 1, 2000. Another four percent will be added in April of this year with a final five percent hike coming in April 2003. The FOP rejected city efforts to provide a one-time cash bonus to officers and insisted that the equivalent of the bonus be included in annual raises so that the entire sum would be pensionable. Starting pay now goes to $36,304 while a ten-year veteran will earn a base of $50,693. Sergeant pay now ranges between $51,376 and $65,571.