August 2002

Cincy citizens and police can complain about each other

Every police department in America has some method by which citizens can file a complaint against officers. Now comes a proposal in Cincinnati to allow officers to file complaints against citizens. And, the ACLU is supporting it!

Cincinnati is one of several police departments that have found themselves subject to federal scrutiny in recent years. The shooting of a black youth by a police officer in 2001 set off the city's worst outburst of racial unrest in decades. As a result, the U.S. Department of Justice (DOJ) launched an investigation of the department. Meanwhile, the Cincinnati Black United Front (CBUF) and the American Civil Liberties Union (ACLU) also sued the city over allegations of police racism and use of excessive force.

The city recently signed an agreement with DOJ that requires changes in police operations including policies governing use of force. The city,
the CBUF, and the ACLU have also tentatively agreed to a settlement of the private suit. This settlement is to be reviewed later this month by a federal judge.

Under the proposed settlement, police officers could file complaints against unruly citizens just as citizens could file complaints against officers. One goal of the process is to identify individuals and locations that are continuing sources of police problems. "If there are people or neighborhoods that are routinely causing problems, we'll target those areas," said Alphonse Gerhardstein, an attorney for the CBUF. Intervention techniques might include use of the clergy and community leaders to meet with residents who show disrespect toward the police.

The complaint system will also record instances where citizens commend individual police officers. The consolidated citizen-police complaint system is believed to be the first of its kind in the nation.

More suits filed against Ford over safety of police cars

Montgomery Township, Pennsylvania, and Nueces County, Texas, are the latest entities to sue the Ford Motor Company over concerns that the popular Crown Victoria patrol car contains a defective gas tank that could explode upon rear impact.  Questions about the safety of the popular model arose last year after several officers were injured or killed in the vehicle crashes. (Police Labor Monthly, December 2001)

The Pennsylvania suit, which is seeking class-action status for all police departments in the state, alleges that the nation’s best-selling police cruisers and its gas tanks are improperly designed.  “The gas tanks of the Crown Victoria are behind the rear axle — a location which is unsuitable for police vehicles which stop along road shoulders to direct traffic or help motorists and are susceptible to rear-end impacts,” claims attorney Edward Rubin, who filed the lawsuit.

The suit asserts that Ford has not responded to complaints from other police departments and has not modified the design of the car.  The suit asks for a recall of the vehicles or payment for moving the tanks on existing cars.  Rubin estimates that the repair cost would range between $300 and $400 per vehicle.  

Like the Pennsylvania case, the Texas county officials are seeking to force Ford to make immediate changes to the vehicles.  Later in July, a Texas judge will consider a motion to require Ford to notify all police agencies of alterations it has been offering to make the gas tanks more puncture resistant.

Similar lawsuits have been filed in Arizona, New Jersey, Florida, and Louisiana.  Ford controls about 85 percent of the police cruiser market.  At present, about 400,000 Crown Victoria police cars are believed to be on the road. 

 

Judge upholds Detroit "blue flu" prevention effort

Detroit police officers who called in sick on “fireworks night” could be required to undergo a medical examination, a state judge ruled June 24.  The decision came in response to Police Chief Jerry Oliver’s efforts to prevent a possible “blue flu” job action during the city’s 44th annual International Freedom Festival.  Chief Oliver issued a memo June 19 that ordered officers to report to a clinic for a fitness evaluation if they called in sick the night of the fireworks.  The Detroit Police Officers Association (DPOA) went to court to block the requirements that Chief Oliver had laid out to prevent the rumored work slowdown.

Detroit officers have been working under an expired labor contract for a year.  An anonymous letter began circulating through the department suggesting a sick-out as a way to protest the newly appointed police chief’s policies.  Oliver, the former police chief in Richmond, Virginia, was appointed to the Detroit job in January and has moved quickly to implement organizational and policy changes.  His comments, ranging from an assertion that the department has “criminals in the ranks” to the claim that police unions are obstacles to progress, have not set well with many officers.
James Gawlowski, president of the Detroit Police Lieutenants and Sergeants Association, said the chief was “out of the Dark Ages.”  He further accused Oliver of  “stepping all over the contract without any regard for my members.”

The DPOA, which maintains it opposes the sick-out, sought a court injunction claiming that the medical screening violated its labor contract.  Judge Cynthia Stephens ruled that officers could call in sick on fireworks night citing illness of a family member but the chief’s order regarding those who claimed personal illness did not violate the labor pact.  The judge further ruled that the chief cannot bar officers from using an emergency day on “fireworks night.”

Because of weather concerns, “fireworks night” was moved one day, to June 27.  Although sick leave usage for the department has been running somewhat higher than in previous years, an excessive absence rate was not reported for “fireworks night.”

At-will doctrine receives fatal blow in Oklahoma

Employment at-will, the traditional legal doctrine that an employee can be terminated for any reason or no reason - and can likewise quit for any reason - continues as the dominant employment status in smaller law enforcement agencies throughout the South and parts of the Midwest.  A recent Oklahoma court ruling, however, may have virtually killed the concept in that state as well as clarify the legal standard for officer dismissals.

Hailed as a “major victory” by police labor officials, the Oklahoma Supreme Court ruled in June that members of the state police pension system may not be discharged from their jobs “except for cause.”  Since most Oklahoma police officers belong to this pension system, the “cause” requirement effectively voids the employment at-will doctrine and establishes “cause” as the standard for terminations. 

The ruling came in City of Durant v. Cicio wherein Chris Cicio, a police officer, challenged his termination.  Cicio demanded a board of review as provided for in the language of the state pension law.  The city reluctantly empanelled a review board which, following a hearing, ordered the officer reinstated.  The city appealed, arguing that Cicio was an at-will employee and could be discharged by the city manager “for the good of the service.”  Following an adverse ruling by the trial court, the city appealed again and obtained a favorable ruling by the intermediate court.  Cicio then took the matter to the state’s highest court.

Justice Hardy Summers, writing for the majority, noted that the language of the pension statute was clear and overrode another Oklahoma law permitting cities to discharge officers “for the good of the service.”  The justice wrote that the pension law is unambiguous on the issue and “is clearly intended to protect policemen who are members of the state pension and retirement system from arbitrary discharge from employment.”  The “for cause” requirement “accords members a legitimate expectation of continued employment until ‘cause’ for discharge is shown,” the justice continued.  

The court further noted that a statewide interest exists in the protection of employment rights of police officers from arbitrary discharge.  This statewide interest trumps any home rule claim of a municipality.

Virtually all Oklahoma police officers are members of the state police pension plan.  Officers in most Oklahoma cities are also covered by collective bargaining agreements.  The ruling clarifies the standard for discharge and bars dismissals without a hearing.

Supreme Court update

As the Supreme Court term came to an end the justices denied review of Barrio v. Florida Board of Regents, No. 01-1560.  In doing so, the justices declined to rule upon the question of whether a transfer of a police officer from one assignment to another without loss of pay is an “adverse employment action” within the meaning of federal civil rights law.  Lower courts have split on this question.  The denial of review in Barrio ends the claim of a campus police officer that his transfer from investigator to uniformed patrol officer was in retaliation for exercising his First Amendment rights.

Justices did agree to consider whether state workers may sue their employer for violation of the Family and Medical Leave Act (FMLA).  Nevada Department of Human Resources v. Hibbs, No. 01-1368, is another of a series of cases wherein the court must decide a question defining the relationship between the state and federal governments.  In 1999, the Supreme Court ruled that 11th Amendment immunity for states barred their employees from enforcing their rights under the Fair Labor Standards Act in federal court.  The Hibbs matter raises a similar question regarding the FMLA.  

Only in special circumstances has the court ruled that a lawsuit against a state may be pursued in federal court.  To date, the justices have limited the application of the 11th Amendment to state governments and have not expanded their holdings to subunits, such as counties and cities.  No decision is expected in this matter until next year.

The end of term left Ashton v. City of Memphis, Tennessee, No. 01-1707, without a review decision.  The matter, which involves a challenge to the police department’s promotion system, will likely be carried over to the court’s next term before justices decide whether to hear the case.  The Supreme Court will reconvene on October 7.
 

Litigation

Right to Privacy

In 1990, Cooksey was appointed chief of police in a small Missouri town.  He reported to the police commission, the board of aldermen, and the mayor.  In 1998, Boyer was elected mayor.  Boyer harbored significant animosity toward Cooksey and had included a campaign promise to reorganize the police department and replace Cooksey.  About the same time as Boyer’s election, Cooksey sought treatment for stress.  According to city policy, he submitted a statement from his psychologist explaining his need for excused leave.  A few weeks later, the psychologist sent a note saying that Cooksey would be able to return to full duty in a few weeks.  The week following his return to duty the board of aldermen met and Boyer disclosed in open session that Cooksey was undergoing treatment for stress.  A discussion ensued regarding the need for a physician’s report confirming Cooksey’s fitness for duty.  At the next board meeting, Cooksey’s status was again briefly discussed as it was at subsequent meetings.  Approximately seven months later, Boyer sent Cooksey a letter informing him that he was terminated.  It was ultimately determined that the mayor’s action had not been approved by the board of aldermen and Cooksey was reinstated.  The mayor was subsequently impeached from office.  Cooksey remained in his position as chief for another year at which point he resigned, citing his inability to work in a town where his reputation had been maligned and his mental fitness questioned.  Cooksey then filed suit against the mayor and the city alleging that the disclosure and subsequent discussion of his mental health treatment violated his constitutional right to privacy.  Trial court granted summary judgment for the mayor and the city and former police chief appeals.

HELD:  In raising a federal civil rights claim, a plaintiff must show that the defendants acted under color of state law and that the alleged misconduct deprived him of a constitutionally protected right.  Here, Cooksey claims a violation of the Fourteenth Amendment, asserting that it protects an individual’s interest in avoiding disclosure of personal matters.  However, prior case law holds that not every disclosure of personal information will implicate the constitutional right to privacy.  The Supreme Court has also cautioned against unwarranted expansion of this right.  The personal rights protected by the Constitution are limited to those which are fundamental or implicit in the concept of ordered liberty.  For a disclosure to be a violation of the constitutional right to privacy, the disclosure must be a shocking degradation, or an egregious humiliation, or a flagrant breach of a pledge of confidentiality that was instrumental in obtaining the personal information.  The city in this case had a legitimate interest in ensuring Cooksey’s fitness for duty.  While the matter certainly could have been handled more professionally, the information disclosed and the circumstances of the disclosure were neither shockingly degrading nor egregiously humiliating.  Because the field of law enforcement is generally recognized as inherently stressful, it follows that the decision to seek treatment for that stress cannot be characterized as egregiously humiliating.  The board’s reinstatement of Cooksey as chief of police is strong evidence against his assertion that he was stigmatized by the disclosure.  Summary judgment for city affirmed.  [Cooksey v. Boyer, 289 F.3d 512 (8th Cir. 2002)]

Substance abuse testing


In 1991, Congress directed the Secretary of Transportation to prescribe regulations that would require recipients of federal mass transportation grants to conduct drug and alcohol testing of employees responsible for the performance of safety-sensitive functions.  The Massachusetts Bay Transportation Authority (MBTA) was a recipient of such federal funds and adopted a drug and alcohol policy.  The MBTA police officers’ unions brought suit claiming that the policy violated federal and state law in various respects.  After obtaining a preliminary injunction, the case was removed to federal court.  MBTA moves to dismiss the case.  

HELD:  Under MBTA policy, police officers and other safety-sensitive positions are subject to random, suspicionless drug and alcohol testing.  Normally, the employee is accorded personal privacy in producing the sample, but under limited circumstances direct observation of the employee is required.  The MBTA policy requires direct observation of collection of the urine specimen when there is no adequate medical explanation for the invalidity of a prior sample, the prior sample was adulterated or substituted, the temperature of the prior sample suggests alteration, or there are other indications that the prior sample has been tampered with.  The direct observation procedure requires the collector to observe the employee urinating into the sample container.  In order to conduct a direct observation, the collector must first obtain permission from a higher level supervisor.  Only collectors of the same gender as the employee are allowed to observe the process.  The officers’ unions object to this procedure claiming it violates the Fourth Amendment guarantee against unreasonable searches and seizures.  The Supreme Court has determined that the Fourth Amendment permits random drug testing of government employees engaged in safety-sensitive functions.  The court has not directly spoken to the question of when direct observation of employees is reasonable under the Fourth Amendment.  Prior case law, however, has held indirect observation to be constitutional even where the collector has no suspicion of tampering.  Because a collector’s direct observation of urine collection under the MBTA regulations represents a greater intrusion upon an employee’s privacy than occurs in an unobserved collection, it may be justified only if it serves a real and compelling governmental interest.  If a governmental employer can conduct random drug testing of safety-sensitive employees, surely it may be a reasonable step to ensure the testing is accurate and effective.  The MBTA regulations permit direct observation under very limited circumstances.  These rules are not sweeping but narrowly focused on preventing tampering with samples.  The narrowness of the focus is demonstrated by the actual statistics regarding direct observation.  Of the several thousand samples collected during each year, only five or six are collected pursuant to the direct observation procedures.  No specimens for police officers have ever been collected under direct observation.  The MBTA policy permits direct observation collection only when there is reason to be suspicious about the integrity of the initial sample.  The policy establishes safeguards to ensure that the observation is not carried out arbitrarily or inconsistently.  The policy does not violate the Fourth Amendment.  The police officers’ unions also object to a requirement that safety-sensitive employees disclose use of prescription or over- the-counter medications that contain alcohol or other substances that might impair their ability to perform their duties.  This provision is not mandated by the federal regulations and the officers claim it violates their right to privacy.  The MBTA has a substantial interest in ensuring its police officers’ faculties are unimpaired, not only by pro-hibitive drugs but also by any medications they are legitimately taking. The potential for harm to other employees or the general public is just as great when the officer is impaired by legal medication as when he is impaired by illegal drug use.  On balance, the MBTA’s interest in safety justifies the relatively limited intrusion on the officer’s privacy created by the disclosure requirement.  The union also objects to the fact that the implementation of the drug testing policy was not bargained under the state collective bargaining law.  To the extent that the MBTA was obligated to adopt the drug testing policy by federal mandate, the claim that the adoption violated state statute is preempted by federal law.  However, the MBTA may still be under an obligation to bargain certain peripheral items relative to the drug testing policy.  The record reflects, however, that the union has never specifically raised the issue at the bargaining table and until such time, the court is unable to respond to this claim.  Summary judgment for transit authority. [Byrne v. Massachusetts Bay Transportation Authority, 196 F. Supp.2d 77 (D. Mass. 2002)]

Dismissal grounds

While out on sick leave without pay, Blappert, a New Orleans police officer, was traveling in Mississippi.  On the highway he saw a friend’s vehicle on the side of the road.  The vehicle had been stopped and the friend was receiving a citation from a Mississippi police officer.  Blappert stopped his vehicle in front of the friend’s automobile and walked toward the friend’s vehicle.  As he did, the police officer stated that Blappert needed to return to his own vehicle.  Blappert began to comply then turned around and started yelling and waving his arms at the police officer.  When he failed to return to his vehicle, the officer attempted to take Blappert into custody.  They both fell to the ground and the officer eventually subdued Blappert.  Ultimately, the charges against Blappert were dismissed but he never reported his arrest to the department as required by department reg-ulations.  When the police department subsequently found out about the incident, it brought administrative charges against Blappert seeking to terminate him.  Blappert was ordered terminated from the department and he appealed.  A hearing officer heard the evidence and recommended overturning the termination.  However, the civil service commission reviewed the record and chose to credit the testimony of the Mississippi officer over the testimony of Blappert and his friend.  The commission found that Blappert’s conduct impaired the operation of the police department and he should be terminated.  He appeals.

HELD:  An employee who has gained permanent status in New Orleans civil service cannot be subjected to disciplinary action except for cause expressed in writing.  An employee may appeal such disciplinary action against him.  Civil service commission has the duty to determine if the department has good or lawful cause for taking disciplinary action and if so, whether the punishment imposed is commensurate with the offense.  A court in reviewing the civil service commission decision should not modify its order unless it is arbitrary, capricious, or characterized by abuse of discretion.  Arbitrary or capricious means the absence of a rational basis for the action taken.  In this case, it cannot be said that the commission acted in an arbitrary or capricious manner.  Police department presented sufficient evidence to show that it had good cause for taking the disciplinary action.  Termination of police officer affirmed.  [Blappert vs. New Orleans Police Department, 814 So.2d 679 (La. Ct. App. 2002)]

Residency Requirement

Kelly accepted a provisional appointment as chief of police.  The city made the appointment permanent about a year later after Kelly fulfilled two conditions upon which the parties had agreed:  first, that Kelly passed the civil service examination for chief of police and second, that Kelly established residence in the city.  Subsequently, Kelly asked the city to waive the residency requirement but his request was denied.  Nonetheless, Kelly moved outside the city but remained within the same county.  The mayor then informed Kelly that he had vacated his position because of moving his residency.  Kelly filed suit alleging that the city violated New York statute by failing to conduct a disciplinary hearing prior to removing him from his office.  Trial court dismissed the claim and police chief appeals.

HELD:  Under New York statute, “a member of the police force” may not be required to live within the employing city unless such residency requirement is established by local legislative enactment.  Chiefs of police, such as Kelly in this case, fall within the definition of “a member of the police force.”  The city had no authority under state law to deem Kelly’s position vacant based on his breach of an alleged oral agreement to live within the city without first conducting a pre-termination hearing to determine whether he had engaged in the alleged misconduct.  Dismissal of case reversed and remanded with order to reinstate chief of police with back pay. [Kelly v. Evans, 741 N.Y.S.2d 637 (N.Y. App. Div. 2002)]

Disciplinary procedures

McDonald, a police officer, was on duty when he went to a fast food restaurant to order dinner.  After placing his order and paying for it, McDonald became involved in a dispute over the amount of change he was given.  The dispute escalated and McDonald decided to arrest the restaurant employee.  When she refused to submit to arrest, McDonald sprayed her with pepper spray.  The event was observed by various people at the restaurant.  Because the police officer was white and the employee African-American, McDonald’s use of the pepper spray produced considerable commotion and protest both that night at the restaurant and during the ensuing weeks in the community.  McDonald’s supervisor was called to the restaurant on the night of the incident.  He relieved McDonald of duty and sent him home.  The following day, McDonald was ordered to attend a show cause hearing concerning allegations of misconduct and any discipline that might be imposed.  On the same date, he was suspended from active duty with pay and ordered to take a psychological examination.  Psychological exam indicated he was fit for duty and McDonald was assigned to a clerical job.  However, he was removed from that position and again sent home.  His pay was continued.  One month after first being suspended with pay, criminal charges arising out of the restaurant incident were filed against McDonald.  As a result of the filing of these charges, McDonald’s salary was discontinued.  No form of hearing was conducted at this time.  Three months later, the criminal trial was held.  Several of the charges were dismissed and McDonald was acquitted on the remaining charge.  The following month, an internal investigation began of the restaurant incident.  Three weeks later, the chief of police conducted a pre-disciplinary hearing on the matter and terminated McDonald.   The Fraternal Order of Police, the bargaining agent for city police officers, filed two grievances on McDonald’s behalf.  Each grievance went to an arbitrator.  The first grievance contested McDonald’s suspension without pay.  The arbitrator found that the suspension without pay from the date of the filing of the criminal charges until the date of McDonald’s termination was improper and sustained the grievance.  The second grievance regarded McDonald’s termination.  Once again the arbitrator found for the officer and ordered him reinstated but without back pay.  The city appealed the reinstatement but the court upheld the arbitrator’s decision.  McDonald filed a claim that the suspension without pay violated his due process rights.  Trial court granted summary judgment for the city and McDonald appeals.

HELD:  When considering a claim that due process rights are violated, the court must first determine whether the claimant has a right or interest that is entitled to due process protection, and second, the court must determine what process is due.  As to the first question, McDonald possessed a property interest in continued employment because he was a classified employee under Ohio law and enjoyed a property right based on the collective bargaining agreement.  Thus, the first prong of the due process inquiry is satisfied.  Normally, when an individual is deprived of a protected property interest, a pre-deprivation hearing of some sort is required to satisfy the dictates of due process.  This hearing need not be elaborate depending on the importance of the interest at stake.  McDonald argues that the hearing before the chief of police was insufficient because prior to the hearing, the chief had determined to terminate him.  McDonald argues that the pre-termination hearing was a sham.  Though it confers only a limited right of reply, a pre-deprivation hearing is designed to invoke the employer’s discretion, his sense of fairness and mutual respect, and his willingness to reconsider.  It is not designed to uncover the employer’s bias or corrupt motivation.  Pre-deprivation hearings do not require the kind of neutral and independent decision-making that independent, quasi-judicial appeals from the deprivation would require.  Since there was evidence that the chief had repudiated McDonald’s use of pepper spray during the incident and that he was under considerable public pressure because of the event, the possibility of bias arises.  However, this bias does not portray a resolve to terminate McDonald’s employment that was so fixed and absolute as to render the hearing a sham.  McDonald has not shown a violation of his due process right in this respect.  The officer also argues that the city failed to conduct an appropriate hearing before discontinuing his salary when the criminal charges were filed.  The city responds that no hearing was required because it was justified in discontinuing his salary until the charges were resolved.  The city claims that the show cause hearing held one month earlier resulting in suspension with pay was all that was required when his salary was later discontinued.  A close examination of the record, however, reveals that the loss of pay was not a product of McDonald’s earlier suspension with pay because the question of the criminal charges was not considered at the original hearing.  The trial court found that the lack of a pre-deprivation hearing was nonetheless protected by procedures that followed termination.  Certainly, the amount of post-deprivation procedures impact the amount of pre-deprivation procedure required.  In some cases, post-deprivation review may be sufficient and no pre-deprivation process is required.  In this case, however, McDonald lost more than three months pay.  Similarly, it took a year for the arbitration procedure to ultimately resolve McDonald’s situation.  The city could have easily kept him on suspension with pay.  While the city might not wish to pay someone who it was prosecuting, the damage to the public interest in continuing this suspended employee’s pay until the charges are resolved is negligible.  McDonald was entitled to a forum to invoke the chief’s discretion, his sense of fairness and mutual respect, and his willingness to reconsider.  None of those considerations are avoided because the factual basis of the deprivation is undisputed.  The subsequent dismissal of the criminal prosecution indicates that a hearing could have been productive for McDonald.  Reasonable minds could find that the city violated McDonald’s rights by failing to conduct a pre-deprivation hearing before it discontinued his pay.  Trial court erred in granting summary judgment on this question.  Finally, McDonald complained that the city should have reinstated him on the date the second arbitrator ordered him reinstated.  Instead, the city sought judicial review of the decision.  The court subsequently upheld the decision.  State law allows an appeal of an arbitrator’s decision and the city took advantage of that right.  Due process claims look not to the result reached but to the process that was followed.  The fact that the city sought to attack the arbitrator’s decision but was unsuccessful does not dem-onstrate a due process violation.  Affirmed in part and reversed in part and remanded for further proceedings.  [McDonald v. City of Dayton, 767 N.E.2d 764 (Ohio Ct. App. 2001)]

Bargaining Unit

In 1980, the state labor board certified a bargaining unit consisting of all non- professional court related employees.  Nearly twenty years later, the deputy sheriffs’ association sought to carve out of this group a unit composed solely of deputy sheriffs.  The petition to the labor board asserted a lack of a community of interest with the other employees in the unit.  The matter was assigned to a hearing examiner who concluded that all employees in the bargaining unit were subject to the same probationary period, had similar wages, hours, overtime benefits, pay increases, leave benefits, holiday, vacations, health and insurance benefits, and access to grievance and arbitration procedures under the current collective bargaining agreement.  The evidence also reflected that the deputies were organized into three units, a warrant division that served criminal warrants, a courts division that served subpoenas and transported prisoners to the courtroom, and a civil division that served civil writs.  Likewise, the deputies were subject to certain strength and agility requirements.  Nonetheless, the hearing examiner concluded that the deputies shared a sufficient community of interest with remaining court-related employees to remain within the designated bargaining unit.  Labor board adopted these findings and deputy’s association appeals.  

HELD:  The association argues that prior case law requires that the labor board look more closely at dissimilarities in job functions and less to similarities in job functions among members of bargaining units.  Such a view of current case law is erroneous however.  Prior decisions hold that in determining whether employees share an identifiable community of interest, a number of factors must be considered, including the type of work performed, educational skills requirements, pay scales, hours and benefits, working conditions, interchange of employees, grievance procedures, and bargaining history.  The decisions do not reflect that any one factor should be given greater weight than another.  In fact, the prior decisions reiterate that an identifiable community of interest does not require perfect uniformity in conditions of employment.  While the record reflects the deputy sheriffs have duties that differ from other employees in the bargaining unit, the job functions were extensively reviewed by a hearing examiner.  Similarly, there are significant similarities between the deputy sheriffs and some of the other employees in the unit.  It is well-settled Pennsylvania law that a court may not substitute its judgment for that of the labor board absent bad faith, fraud, capricious action or abuse of power.  The board’s action of denying the new bargaining unit is supported by substantial evidence.  [Deputy Sheriff’s Association of Berks County v. Pennsylvania Labor Relations Board, 795 A.2d 1064 (Pa. Commw. Ct. 2002)]  

Compensation

In 1979, Stern was hired as a police officer.  At the time, the terms of his employment were governed by a collective bargaining agreement.  In 1983, it was determined that the borough and the bargaining unit had entered into collective bargain agreements without formal approval from the state labor relations board.  Consequently, a certification election was conducted to formally establish a bargaining representative and to designate a police bargaining unit.  The borough and the police association stipulated that the police chief was not considered part of the bargaining unit and was to be excluded from the unit.  The individual who was chief at the time did not wish to be included in the bargaining unit.  The parties entered into a memorandum of agreement that defined the collective bargaining unit as excluding the chief of police.  The labor board subsequently issued an order fixing the time of the representational election.  Following the election, the labor board certified the bargaining unit, noting that the chief of police was excluded from the unit.  Four years later, Stern became chief of police.  He negotiated the terms of his employment independently from the police bargaining unit contract.  Ultimately, Stern left the chief’s position.  At the time of his departure, he sought $25,000 compensation for accumulated sick leave and clothing allowance, arguing that under Pennsylvania law, he was entitled to the same benefit that the members of the bargaining unit received.  Pennsylvania statute stated that a chief of police shall receive the same fringe benefits as police officers if the chief has been forcibly removed from the bargaining unit by the rulings of the state labor board.  Trial court granted summary judgment to the borough in the matter and former police chief appeals.

HELD:  State law provides that a police chief who is removed from the bargaining unit by the labor board shall not receive less than the same dollar increase, including fringe benefits, as received by the highest ranking police officer in the bargaining unit.  In this case, Stern voluntarily executed the contract that governed the conditions of his employment, including sick time and uniform allowance.  Further, he was not forcibly removed from the bargaining unit by a labor board ruling or as a result of some adversarial proceeding before the labor board.  The bargaining unit was created through negotiation between the borough and the union prior to the representation election.  Similarly, Stern’s elevation to chief of police was voluntary on his part.  Because Stern was removed by agreement between the parties instead of a labor board order as required by the clear language of the statute, he is not entitled to the benefits he is seeking.  Affirmed for borough denying payment for unused sick leave and uniform allowance.  [Stern v. Borough of Somerset, 796 A.2d 376 (Pa. Commw. Ct. 2002)]

Conroe, Texas

police officers

The Conroe City Council recently boosted police officer pay up to 22 percent to stem defections to other agencies. Base pay was jumped to $35,640 for entry-level officers. The second part of the pay plan goes into effect in September when longevity pay is increased. Only the most senior officers will gain the entire 22 percent wage increase.

Franklin County, Ohio

deputy sheriffs

An arbitrator has awarded Franklin County (Columbus-area) deputies pay increases of four percent in 2002, 2003, and 2004 as part of a three-year labor pact. The pay hikes are retroactive to January 1. Over 550 deputy sheriffs, represented by the Fraternal Order of Police, are covered by the award. The award also grants an additional four percent boost to deputies with at least ten years of experience, about half the force. These individuals will earn a base pay of $51,688 while a four-year veteran will draw $49,691.

Lincoln, Illinois

police officers

Lincoln city council has approved a three-year pact with the local Fraternal Order of Police lodge. Officers will receive a three percent wage boost the first year followed by 3.25 percent the second year. The final year of the pact produces a 3.5 percent pay hike. The city will continue to pay 100 percent of the health insurance premium for police employees.

Louisiana

state troopers

Recent changes in the pay scale for the 1,000Louisiana State Police troopers have boosted starting salaries substantially. Trooper cadets now start at $31,304, up from $22,044. Upon entry into full service the pay goes to $32,243 with a hike to $36,601 after one year. Top of scale, reached in 22 years, jumps to $86,000, a $13,000 increase. The legislature dedicated a portion of an increased tax on insurance companies and cigarettes to the payment of the troopers' raises. The pay raises are an attempt to stop the loss of troopers to higher paying law enforcement jobs in Louisiana cities and the federal government. While troopers do not operate under a labor contract, most are members of the Louisiana State Troopers Association.

Tucson, Arizona

police officers

Tucson officers recently gained a 7.6 percent wage hike. Detectives and the chief of police received pay boosts over eight percent. Shift differentials were also increased. Police officer base pay now ranges between $37,225 and $52,380 depending on years of service. Detective compensation starts at $41,040 while veterans earn $57,748. A top of scale deputy chief draws $111,941. Personnel through the rank of sergeant are represented by the Tucson Police Officers Association (TPOA). The TPOA contract runs from July 1, 2002 to June 30, 2005.