October 2002

Pattern and practice suits - Is DOJ waving the white flag?

Within the last thirty days, the U.S. Department of Justice (DOJ) has reached agreement with Columbus, Ohio, Buffalo, New York, and Pittsburgh, Pennsylvania, to end most efforts to establish federal supervision over the cities’ police departments.  In Columbus, DOJ resolved its three-year-old litigation with minimal changes in department policies, while in Buffalo all parties involved signed a mutual agreement regarding a new use of force policy.  In Pittsburgh, DOJ agreed to release the Police Bureau from a five-year-old court-approved consent decree.  A DOJ press release noted that during President Bush’s two years in office the administration had settled ten of thirteen cases brought under a 1994 law that permits the federal government to file suit against police departments engaging in a “pattern or practice” of unconstitutional behavior.

While DOJ lawyers treated the settlements as having resolved the alleged underlying unconstitutional practices within each department, others saw the resolution of the suits as more politically driven.  “I see this administration and this Justice Department not being enthusiastic about enforcing civil rights laws,” said Cruz Reynoso, a Clinton appointee who serves as vice chairman of the U.S. Commission on Civil Rights.  
King Downing, an official with the American Civil Liberties Union, noted, “After years of pushing government to bring these kinds of suits directed toward police departments, when we were just starting to get new policies and mechanisms in place to deter misconduct, the cases are dismissed and congratulations given all around.  It’s like calling off the dogs without knowing who is in the yard.” 

But Steve Young, National President of the Fraternal Order of Police (FOP), whose local lodges bargain for officers in Columbus and Pittsburgh, hailed the end of the lawsuits.  “President Bush assured our organization that we would have a place at the table, and that he would listen to our concerns regarding these pattern and practice investigations,” Young said.  “His administration has followed through on this commitment, and has allowed the National Fraternal Order of Police to facilitate the successful outcomes we have achieved in both the Columbus and Pittsburgh cases.  We will continue to work closely with this Justice Department to fairly resolve other pending investigations and existing consent decrees.”

The Columbus case was particularly satisfying for the FOP because Capital City Lodge 9 intervened in the federal suit and fought initial efforts by city officials to reach a settlement with DOJ.  Columbus FOP members and officers in surrounding police agencies reportedly contributed more than $500,000 toward fighting the suit.

The suits in question were filed during the Clinton administration using a 1994 law that permits the DOJ to sue departments without having to rely upon an individual named plaintiff whose rights were violated.  Most of the cases have centered on racial profiling allegations and use of force complaints.

Some observers of DOJ policies said change was clearly signaled when President Bush appointed Ralph F. Boyd, a former prosecutor in Boston, to replace civil rights activist Bill Lann Lee to head the Civil Rights Division.  Boyd is viewed as having “a better perspective as to what cops do,” one labor lawyer observed.

Others believe that domestic terrorist attacks have caused DOJ to shift its priorities and, like the public generally, look at police in a different light.  “I think September 11 refocused America as to what it’s like to be on the front line,” said Daniel Dahlberg, Chief of the Highland Park, Illinois, Police Department.  DOJ had previously backed a racial profiling suit against the department.

DOJ monitoring efforts remain in place, for the moment, against Los Angeles, Steubenville, Ohio, and the New Jersey State Police.  DOJ preliminary investigations are reportedly still underway in Miami, Schenectady, Detroit, and several other cities.
 

IBPO selects Holway as new leader

Members of the International Brotherhood of Police Officers (IBPO) have selected a new leader as their parent union emerges from court-imposed trusteeship.  David Holway, a former deputy commissioner of the Massachusetts Department of Corrections, was elected in September to head the National Association of Government Employees (NAGE).  NAGE, which is affiliated with the Service Employees International Union (SEIU), AFL-CIO, is the parent union of IBPO. 

In addition to the election of Holway, union delegates meeting in Las Vegas voted to expand the executive board from nine to 43.  The new board includes ten police officers, the largest single profession represented.  Nine federal employees and six state employees are also included on the board.

NAGE - and as a consequence IBPO - was placed in trusteeship by SEIU officials in August 2001 after allegations that the union’s founder and only previous president, Kenneth T. Lyons, 83, had engaged in financial mismanagement.  Among the most serious allegations were claims that during a state ethics probe, Lyons destroyed expense vouchers in an attempt to conceal that he had paid for dozens of restaurant meals for Massachusetts’ top labor negotiator.  Efforts by Lyons to reclaim the union have been rebuffed in recent federal court action. 

Holway’s election, by a four-to-one margin, places him in charge of the 40,000-member union of police officers, correctional officers, paramedics, and various other state and federal government employees.  The bulk of the union’s police locals are found in Massachusetts, Connecticut, and Rhode Island.  

Police officers second in line for smallpox vaccinations

Smallpox vaccine would be offered first to hospital emergency workers and slowly extended to other doctors, nurses, police officers, fire fighters, and, eventually, the general public, under a Bush administration plan in the final stages of development.  The plan would begin vaccinations for those at the greatest risk of contacting a patient with the highly contagious disease.  That includes infectious disease specialists and emergency room personnel, including doctors, nurses, technicians, even security officers working at hospitals and clinics, according to officials familiar with the administration’s planning. 

This first group probably will include more than one million people, one official told the Associated Press.  Precise numbers won’t be known until states are given guidelines and determine how many people they cover.  The vaccinations carry risk of serious side effects, including death, so authorities estimate that only about a third to a half of those offered vaccinations will take them.  In the end, they believe that several hundred thousand - maybe half a million - will wind up getting the vaccinations. 

Smallpox hasn’t been seen in this country in decades, and routine vaccinations ended in 1971.  In 1980, the disease was declared eradicated from the globe, but experts fear hostile nations or terrorist groups might acquire the virus and unleash it in a bioterror attack. 

The plan on the table would vaccinate people in stages, based on risks they face. In the second stage, vaccinations would be offered to other health care workers, including those in private practice and others who work in hospitals but are not at direct risk, officials said.  At some point, emergency personnel, such as police and fire fighters, also would be offered the vaccinations. 

For federal officials - including President Bush, who will have the final say - the challenge is balancing the risk of the vaccine, which is known, with the risk that smallpox might return, which is not known.  Top health officials say they have to assume that would-be terrorists have the virus and might use it against civilian populations. 

About one in 1,000 people vaccinated will face complications, some serious, and the vaccine will kill one or two out of every million people who get it.  Using this logic, in July a federal advisory committee recommended limited vaccinations.  They recommended vaccinating small response teams for each state and a few caregivers at designated hospitals - probably 10,000 to 20,000 altogether.   People can be vaccinated effectively against smallpox for several days after they are exposed; so an urgent round of vaccinations would begin as soon as a patient had been diagnosed.  

LAPD sick leave use among highest in California

Predicting the effect of sick leave usage on staffing levels has always been an inexact process for police administrators.  While communities with harsher weather might expect more officers to be sick during the year, the more temperate climates are not immune from sick leave use.  A study released recently by the city’s Police Commission revealed that Los Angeles Police Department (LAPD) officers have one of the highest sick leave use rates in the state.  On any given day, LAPD averages 5.8 percent of its workforce off sick.  This is the highest in the state save for the California Highway Patrol, which averages a seven percent staff absence due to illness.

Other agencies surveyed reported lesser levels of average sick leave use.  The Los Angeles County Sheriff’s Department reported a 3.2 percent daily average while two percent of San Diego’s officers are off sick on average.  The lowest sick leave utilization was reported by San Jose where only 1.9 percent of the force is off sick on any particular day.

LAPD Police Commission officials speculated that the high sick leave usage might be tied to the city’s policy of not compensating officers for unused sick leave.  While some California agencies, such as San Jose, allow officers to cash out their sick leave upon retirement after accumulating as few as 96 hours, LAPD officers must collect 800 hours, which takes at least nine years. 

Internal rift affects S. A. union officers' leave bank

In a possible sign that support for hard-line police labor tactics is softening, nearly 200 San Antonio police officers have withdrawn the leave time they donate to union officials, who rely on the pool of hours to run the group’s business, the San Antonio Express-News reported September 15.  

Union leaders said the number of hours lost is not high enough to hamper their work. But they fear the mass withdrawals point to an internal rift, and they suspect the loss stems from a stealth campaign encouraged by police administrators as they battle the union in contract negotiations.  

“You’ve got to question if there’s some kind of organized plan to fuel this,” said Rene Rodriguez, president of the San Antonio Police Officers’ Association.  “Even if it’s just one person it’s significant, because it means you have a member who doesn’t support our system. It’s a concern to me.  We need to be united, especially now.”  Police records show that 191 officers - out of a total force of about 2,000 - removed their names from the list of contributors the first two weeks of September. Union members automatically donate four hours of leave time every year, unless they sign a form requesting they be dropped from the bank.  An additional 38 officers canceled their donations to the union’s political action committee, records show.

The internal dissension comes at a tender time for the union as negotiators wade into potentially more turbulent and substantive talks.  City officials recently pitched a three percent suggested pay raise for officers, an offer that fell well below the union’s request for a universal monthly raise of $300.  That amounts to an eight percent average pay increase.  

In a bulletin sent to officers, Police Chief Albert Ortiz cited the high number of union members who dropped out of the leave pool, saying the move signaled a growing “disgust” with the tactics of some union officials.  The officers stopped their donations at their own initiative, he said in an interview.  

Rodriguez said Ortiz’s memo looks like an attempt at union busting.  “It seems like the chief is trying to create the perception that everybody’s against what we’re doing,” Rodriguez said. “It seems like he’s trying to encourage these guys to drop out.  We’re having our attorneys look at it now.”  

The union began suffering losses from its bank of leave hours as some in the top brass questioned the amount of administrative leave union negotiators are using.  Administrative leave, which the department is required to grant to the union team so it can conduct the talks, is distinct from the pool of hours officers donate to the association.  Between May 15, when the team began preparing for the talks, and September 1, negotiators used 2,320 hours of administrative leave. Counting the hourly rate and benefits the team’s six negotiators earn, the total cost for that leave was $91,610.48, according to department records.  During the 1998 contract negotiations, which extended for 18 months, union negotiators used 3,226 hours worth of administrative leave.  

 

Litigation

Religious discrimination

Lawson applied for a position as a Washington state trooper.  In filling out the background questionnaire, he certified as true an affirmative answer to the question “Are you willing to take an oath to support the Constitution of the United States and the Constitution of the State of Washington?”  He was hired for the position and began basic training.  As part of the training, cadets were required to assemble for flag formation twice daily and salute the flag.  Lawson complied for the first two days.  However, Lawson was troubled by performing this duty because he was a Jehovah’s Witness.  Because of his religious beliefs, he was not supposed to salute the flag.  On the evening of the second day of training, Lawson sought out one of the class counselors to announce that he had decided to resign because of a conflict between his religious beliefs and his employment requirements.  He informed the counselor that he could not salute the flag or take an oath of allegiance to the government.  He inquired if there were some accommodation that could be made for him.  The counselor replied that he did not know of any.  The following day, Lawson met with the acting commander of the academy and informed him that his religious beliefs prevented him from saluting the flag and taking the oath.  The acting commander did not discuss possible accom-modations but presented Lawson with a resignation letter stating that he was resigning for personal reasons.  Lawson signed the letter.  During an exit interview the same day, Lawson stated that his primary reason for leaving the academy was his religious beliefs.  After the resignation was accepted, Lawson contacted the commander of the human resources division of the state police to find out the department’s official policy on religious accommodation.  The commander stated that he could not be offered any accommodation and if he wished to be a trooper, he would have to salute the flag and swear allegiance by taking the oath.  Subsequently, Lawson filed suit claiming that the state police had discriminated against him on the basis of religion.  Trial court granted summary judgment for the state and Lawson appeals.

HELD:  Federal law makes it unlawful for an employer to discharge an employee because of the employee’s religion.  It is also an unlawful employment practice for an employer not to make reasonable accommodation for the religious practices of the employee.  Religious accom-modation claims are analyzed under a three-part test.  The plaintiff must show that he had a bona fide religious belief the practice of which conflicted with his employment; two, that he informed the employer of the belief and conflict, and three, that the employer threatened him or subjected him to discriminatory treatment, including discharge, because of the inability to fulfill the job requirement.  It is undisputed in this case that as a Jehovah’s Witness, Lawson’s religious beliefs conflicted with the state police requirement that he salute the flag and undertake an oath to the state.  It is also undisputed that Lawson informed his employer of these conflicts.  Trial court found that Lawson did not satisfy the third prong, being constructively discharged.  Lawson, however, contends that once he discovered he was unable to perform his duties because of his religious beliefs, he felt he had no option but to resign because to do otherwise would violate department and academy rules.  Prior case law holds that a constructive discharge occurs when a person quits his job under circumstances in which a reasonable person would feel that the conditions of employment have become intolerable.  Police cadets quit the academy for a variety of personal reasons throughout the training regimen.  That the academy staff did not take any extraordinary effort to talk Lawson out of leaving does not give rise to a legal conclusion that he was constructively discharged.  It was Lawson who first mentioned resignation to his counselor.  No one else mentioned anything about imposing discipline on him for refusing to comply with the regulations.  No evidence was presented that Lawson was threatened with termination or discipline because of his refusal to salute the flag or take the oath of office.  The employer was under not further obligation to Lawson once he resigned.  Such being the facts, Lawson has failed to establish that he was constructively discharged.  Dismissal of case affirmed.  [Lawson v. State of Washington, 296 F.3d 799 (9th Cir. 2002)]

Disciplinary grounds

The Pittsburgh Police Bureau had a rule that required employees who were subpoenaed to appear as witnesses for a defendant in a criminal case to give written notice to the chief of police of their summoning to court.  In 1996, Swartzwelder, a police officer, began testifying as an expert witness in excessive force suits brought against the city and its police officers.  In 1999, Swartzwelder notified the department that he had been subpoenaed to testify on behalf of a police officer who had been terminated after a high speed chase resulted in the death of a motorist.  The terminated officer, who shot the motorist, was being prosecuted for first degree murder.  While this case was pending, the chief of police issued a new order.  The new order essentially prohibited police officers from responding to subpoenas wherein their advice was sought in connection with any criminal or civil proceeding unless the chief of police expressly authorized the testimony.  Their response to subpoenas seeking factual information, however, was not restricted.  After adoption of the new order, Swartzwelder sent a memo to the chief requesting to continue to testify as an expert in the police officer’s case.  He also subsequently sought permission to testify in two other area police use of force cases.  The chief responded to his requests by advising that a city attorney and a training academy staff member should review Swartzwelder’s testimony prior to trial to “determine its validity.”  Ultimately, Swartzwelder was notified that he could not testify in the three cases since the police chief had yet to issue written authorization to him.  The officer was also advised that failure to comply with the notice order would result in disciplinary action.  The officer filed suit seeking an injunction against the implementation of the order, claiming it violated his First Amendment right of free speech.  Trial court granted a preliminary injunction and police department appeals.

HELD:  In determining whether a preliminary injunction should be issued, a federal court must consider whether the party seeking the injunction has a reasonable probability of success on the merits of the case, whether irreparable harm would result if the relief sought is not granted, whether the relief would result in greater harm to the other side, and whether the relief is in the public interest.  Prior case law has established the so-called Pickering Test to determine whether a public employer may penalize an employee for past expression.  Under the Pickering Test, a statement must touch upon a matter of public concern and the interest of the employee in speaking as a citizen must outweigh the interest of the employer in delivering the public service.  This case differs from the typical Pickering situation, however, because the order restricts employees’ speech before it occurs rather than penalizing speech after the fact.  In prior cases, the U.S. Supreme Court has noted that the government’s effort to restrict future speech of its employees must focus on the expression’s impact on the actual operation of the government.  In the case at hand, the department order restricts speech on matters of public concern.  Prior case law holds that testimony in court is a matter of public concern.  The department’s effort to regulate the opinion testimony imposes a significant burden on First Amendment interests.  The city asserts a it has variety of interests  but these interests bear little relationship to the order in question.  The assertion that the city wishes to keep track of key employees or that the danger exists that confidential information would be disclosed do not seem to be compelling.  Likewise, the city argument that the order prevents the appearance that the officer’s testimony is for sale is not supported by any evidence that the police officers are being paid to testify.  The court is also troubled by the fact that the order requires that the testimony first be reviewed by the city attorney and training staff members to determine its “validity.”  Such a loose standard creates a danger of an improper application of the rule.  The loss of First Amendment freedoms, for even minimum periods of time, unquestionably constitutes irreparable harm.  The evidence suggests that Swartzwelder is likely to prevail in a case on the merits.  In view of his demonstrated ability to offer expert testimony, it cannot be said that the trial court abused its discretion in finding that Swartzwelder faced the prospect of irreparable injury.  Trial court did not err in balancing the interests of the officer against the interests of the city in this case.  While an injunction may impinge on significant interests of the city, the preliminary injunction leaves it free to attempt to draft new regulations that are better tailored to serve its interests.  Preliminary injunction stopping enforcement of the order affirmed.  [Swartzwelder v. McNeilly, 297 F.3d 228 (3rd Cir. 2002)]

Disciplinary grounds

Pool, an African-American female, began working as a corrections officer in the sheriffs’ department.  Over a course of twenty years, she moved up the ranks to theposition of lieutenant.  In 1994, she ran for sheriff against the incumbent and Noelle.  After a poor showing in the primary, Pool dropped out of the race and supported Noelle, who ultimately won the general election.  Sheriff Noelle then appointed Pool as commander of the corrections support division.  Her direct supervisor was the sheriff.  The other commander positions were filled by three men and another woman.  In 1997, Pool intervened in the release of a business associate of an acquaintance of Pool’s.  The individual was released from jail after serving only three days of his sixty-day sentence.  Unbeknownst to Pool, the judge had ordered the entire sentence be served.  Upon discovering the individual had been released, a criminal investigation was conducted.  Ultimately, Pool was reprimanded by the sheriff, but was not reduced in rank or pay.  Due to significant media attention surrounding the incident, the sheriff released the records of the investigation.  Soon thereafter, the sheriff designated Pool as acting sheriff while he was out of town.  While serving in this capacity, Pool attended a group meeting of minority activists who were critical of the way minorities were treated by the local media.  Pool arranged for a friend to read a “letter to the editor” Pool had written in which she criticized the sheriff’s department for its handling of her investigation.  The letter also stated that the sheriff’s department was “very much like a septic tank, the really big chunks always rise to the top.”  She signed the letter as a commander of the sheriff’s department.  When the sheriff returned and became aware of the letter, he met with another commander to discuss Pool’s conduct.  They also discussed the problems she was having managing the records unit.  The sheriff subsequently demoted Pool and decreased her pay because he had “lost confidence in her judgment and ability.”  Pool brought suit claiming that her demotion was in violation of her First Amendment free speech rights.  Trial court ruled in favor of the sheriff and Pool appeals. 

HELD:  For many years, the courts took the view that a police officer had a constitutional right to talk politics, but no constitutional right to be a police officer.  Over the years, however, the law changed until in 1968, the Supreme Court recognized that public employees do not give up their free speech rights by virtue of their employment with the government.  To prevail upon a claim that a government employer punished an employee for exercising her free speech rights, the employee must show that the speech touched on a matter of public concern.   The employer then must show that its interest in maintaining the efficiency of the public service outweighs the employee’s First Amendment free speech interest.  Trial court in this case found that the vast majority of the letter focused on Pool’s view of her handling of the release of the individual from jail.  However, the obvious purpose of the letter was Pool’s concern about racial and gender discrimination caused by the “good old boy nature” of the sheriff’s department; thus, the trial court concluded the letter was entitled to First Amendment protection.  Since Pool had demonstrated a career-long commitment to race and gender equity, her personal job concerns were already entwined with race and gender equality.  Her letter certainly touched upon a matter of public concern.  However, the sheriff’s interest in running the department outweighs Pool’s free speech right.  She was one of five commanders reporting only to the sheriff.  She was a high profile employee whose career had been followed by the press.  The government’s interest in avoiding disruptions is magnified when the employee asserting the right to free speech serves as a confidential policymaker. A wide degree of deference is given to the employer’s judgment when close working relationships are essential to fulfilling public responsibilities, as in a sheriff’s office, a quasi-military organization where discipline and esprit de corps are vital to its function.  Publicly likening the sheriff’s department to a septic tank with “a good old boy network” does not further Pool’s efforts to promote the sheriffs’ department in a positive manner.  Testimony also suggested that numerous employees of the department were upset about the incident.  The sheriff’s demotion of Pool and her decrease of pay due to his loss of confidence in her ability to be an effective commander were well within the latitude afforded to public employers to maintain effective management.  Affirmed for sheriff.  [Pool v. Vanrheen, 297 F.3d 899 (9th Cir. 2002)]

Handicap discrimination

Maldonando became a city police officer in 1990.  In 1997, while serving in the National Guard, he injured his arm, leg, and back.  As a result, he became disabled.  He requested his employer assign him to a position where he did not have to either stand or sit for a long time.  A medical exam revealed that indeed he could not perform normal police functions such as patrol, dealing with complaints, or directing traffic.  He could, however, issue tickets and process paperwork.  Maldonando specifically requested that the city assign him as the clerk at the police station.  The department declined to make the assignment and further stated that no permanent light duty positions for police officers existed.  Maldonando filed suit claiming a violation of the Americans with Disabilities Act (ADA).  City moves for summary judgment.  
HELD:  The ADA prohibits employment discrimination against qualified individuals with disabilities who can perform the essential functions of a job, with or without accommodation.  An essential function is a fundamental job duty of the position at issue.  In absence of evidence of discriminatory intent, courts generally give substantial weight to the employer’s judgment as to what functions are essential.  Other evidence that may be relevant are job descriptions, work experience of past incumbents, and work experience of current incumbents.  Assuming in this case that Maldonando fits the definition of having a disability, he seeks to have the city reasonably accomodate him by putting him in the light duty clerical job at the police department.  However, prior case law holds that the fact that an employee might only be assigned to certain aspects of a multi-task job does not necessarily mean that those tasks to which he is not assigned are not essential.  It seems obvious that as a municipal police officer, even while on light duty, at the very least Maldonando could be summoned to assist in emergencies which would require him to perform the full range of police duties.  Given the admitted limitations of his physical capacity, it is clear that Maldonando cannot perform the essential functions of a municipal police officer.  Thus, since he cannot perform the essential functions of the job, with or without accommodation, he is not a qualified individual under the ADA and cannot invoke the law’s protection.  Summary judgment for city.  [Maldonando v. Municipality of Ponce, 206 F. Supp.2d 198 (D. P.R. 2002)] 

Grooming standards

Booth was employed for more than six years as a correctional officer at the central booking and intake center.  He was a member of the Rastafarian religion and as part of his religious practice wore his hair in dreadlocks.  The dreadlocks were braided, short, and kept tucked neatly against Booth’s scalp.  Department policy required that only historically acceptable military or law enforcement haircuts were permitted.  Because Booth’s hair did not fit policy, he was advised that he would be subject to discipline if his hair were not cut.  Booth notified his employer that he wore his hair in dreadlocks for religious reasons.  Notwithstanding Booth’s claim, progressive disciplinary action was taken against him on several occasions.  Booth filed suit claiming that the department’s grooming standard as applied to him violated his First Amendment right to a free exercise of religion and also claiming that he had been discriminated against because two other employees had been granted waivers from the grooming standards.  Employer moves for summary judgment.

HELD:  The grooming standard provides a medical exemption as part of facial hair removal but does not make any exceptions to the hairstyle rule.  Nonetheless, the standards are rationally related to the division’s legitimate interest in public safety, discipline, and esprit de corps.  The state argues that guards with dread locks might be confused with prisoners during an attempted break out.  This is a sufficient reason to uphold the grooming requirement.  Prior case law holds that once the department demonstrates that it is pursuing a legitimate governmental objective and demonstrates a minimally rational relationship between that objective and the means chosen to achieve the objective, the court must approve those means.  In the day-to-day struggle to maintain order and discipline in prison, matters such as how prison employees dress have a real impact.  Public safety and discipline are all legitimate interests of the state and no rational jury could find the department’s hairstyle policy is not at least minimally rationally related to those interests.  Likewise, Booth has not established a discrimination case.  While Booth may have been treated differently than other employees regarding application of the grooming standard, it is not possible to infer that the difference was motivated by racial discrimination.  Summary judgment for employer.  [Booth v. State of Maryland, 207 F. Supp.2d 394 (D. Md. 2002)]

Compensation

The Florida Police Benevolent Association (PBA) was the bargaining agent for the state’s correctional and probation officers.  In April 2000, PBA and the governor reached a negotiated wage agreement that provided for pay increases totaling five percent.  Consistent with the negotiated wage agreement, the governor submitted a budget to the legislature in an amount sufficient to fund the pay hike.  The legislature, however, provided for only a two and one-half percent pay increase.  The appropriations act noted that the amount appropriated was different from that recommended from the negotiated settlement.  A Florida statute provided that if the state was a party to a collective bargaining agreement in which less than the requested amount was  appropriated by the legislature, the agreement would be administered on the basis of the amount appropriated and that the failure of the legislature to appropriate sufficient funds was not an unfair labor practice.  PBA filed suit seeking to require the state to pay the full amount of the pay raise.  Judge dismissed the complaint and union appeals.

HELD:  The state Supreme Court has previously recognized that public bargaining and private bargaining are inherently different because under the Florida Constitution exclusive control over public funds rests solely with the legislature.  The wage agreement with a public employer is subject to the necessary public funding, which involves the power, duties, and discretion of legislature.  The legislature is not required to fund collective bargaining agreements of public employees.  Any other rule would permit the executive branch of the government to invade the legislative branch’s exclusive right to appropriate funds.  Prior case law holds that when a legislature funds a collective bargaining agreement and tries to change the terms of the agreement, the agreement in the bargain will be enforced.  However, if the legislature underfunds a labor contract, the legislatures say on how the funds will be disbursed controls.  Dismissal of case affirmed.  [Florida Police Benevolent Association v. State of Florida, 818 So.2d 584 (Fla. Dist. Ct. App. 2002)]

Disciplinary procedures

A citizen was asked to leave a convenience store by a cashier who had refused to sell him cigarettes.  The citizen left the store but remained in the parking lot.  A correctional officer who was on suspension from the department at the time, approached the citizen and told him to leave the premises.  When the citizen refused to do so, a physical altercation occurred and the suspended correctional officer hit the citizen in the head with an expandable baton.  Sometime after the altercation was over, Smith, a police officer, responded to a page from the store and arrived at the scene of the altercation.  The correctional officer informed him that there had been a fight.  When he learned the correctional officer had not reported the incident, Smith called the dispatcher and reported a disturbance and indicated he had taken the appropriate action.  Departmental procedure, however, required that altercations be reported to a supervisor and an investigation conducted.  Consequently, Smith did not follow department procedures in handling the matter.  Subsequently, an internal affairs investigation discovered Smith had not followed policy and administrative charges were filed against him.  A thirty-day suspension, fifteen days for neglect of duty and fifteen days for lack of professionalism, was recommended and ultimately imposed.  Smith appealed to the civil service commission which reduced the penalty to five days because it was a first time minor violation.  Police department appeals commission’s ruling.  

HELD:  Under Louisiana law, an employee who has gained permanent status in the city’s civil service cannot be subjected to disciplinary action by the employer except for cause expressed in writing.  Cause has been interpreted to include conduct prejudicial to the public service in which the employee in question is engaged or detrimental to its efficient operation.  Civil service commission has the duty to decide independently from the facts whether good or lawful cause existed and whether the punishment imposed was commensurate with the act.  In reviewing that determination, a court should not modify the commission’s order unless it is arbitrary, capricious, or characterized by abuse of discretion.  Disciplinary action will be deemed arbitrary and capricious unless there is a real and substantial relationship between the improper conduct and efficient operation of the public service.  Civil service commission has the authority to hear and decide disciplinary cases.  That authority includes the power to reduce the penalty.  However, reduction in penalty can only be exercised if there is insufficient cause for imposing the greater penalty.  Thus, in the present case, unless the commission determined there was insufficient cause for the department to impose the fifteen-day suspension, the penalty must stand.  Here, Smith clearly neglected his duty.  As a consequence, it was within the department’s discretion to impose the fifteen-day suspension for a violation of its rules.  Smith also acted unprofessionally in the matter.  Once again, the evidence shows that he failed to follow appropriate police procedure.  Since the evidence found that the department rules were violated, the civil service commission acted arbitrarily by substituting its judgment and reducing the suspension to five days.  Reversed for department and thirty day suspension re-imposed on officer.  [Smith v. New Orleans Police Department, 820 So.2d 643 [(La. Ct. App. 2002)]

Settlements

Hampton, Virginia

police officers

Hampton City Council has awarded its police officers a 12 percent wage hike - with one stipulation.  The value of the raise cannot exceed $4,000.  Consequently, only officers with less than six years on the job will see the entire amount reflected on their pay stubs.  With the wage hike, police officer base pay will range from $31,089 to $46,633.  Corporals will top out at $50,596.  Captain pay will run from $52,882 to $79,323 depending on time in grade.  About 225 officers will benefit from the new raises, which become effective the first pay period in October.
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Madison, Wisconsin

police officers

In a close vote members of the Madison Professional Police Officers Association have approved a new labor agreement with the city.  On the economic front, a three percent wage hike will be paid in 2002 followed by a one percent boost in 2003.  An additional two percent for 2003 will go toward funding a post-employment health insurance plan.  Other provisions of the contract, which covers about 360 officers, include altering the method by which neighborhood officers and drug enforcement personnel are selected, modifying the current system that relies totally on seniority.  Under the new pact, veteran police officers will earn a base of $43,127 while sergeants will draw $47,283.  

New York, New York

police officers

After years of contentious negotiations and recent rumors of a possible strike, a state arbitration panel has imposed a new labor deal on New York City’s patrol officers.  And the award is far less than what officers had hoped for but was more than had been recently granted to the city’s other uniformed unions.  Officers will see their paychecks increase by 11.7 percent over 24 months.  A five percent across-the-board raise is granted in each of the two years of the contract followed by a 1.5 percent boost the last day of the contract.  Since the award expires July 31, 2002, all wage increases will be retroactive.  Starting pay now moves to $34,514 while a 20-year veteran will draw a base of $54,048.  The arbitration panel dropped a tentative proposal for a higher wage boost that would have required officers to work more shifts.  While officials of the Patrolmen’s Benevolent Association, the bargaining agent, expressed disappointment at the award, they were pleased that the arbitration panel broke the pattern of wage hikes recently given to other uniformed unions.