A computerized database may be the key to identifying police officers headed for disciplinary action, or at least such are the hopes of the Baltimore Police Department (BPD), which is joining an increasing list of agencies utilizing computer technology to monitor employee performance. BPD officials are developing a sophisticated database that will monitor the performance of the department’s 3,200 officers in such areas as citizen complaints, arrests, and vehicle stops and seek to identify officers headed for trouble — and police union officials don’t like the idea.
According to Sean Malone, head of the BPD professional standards division, many of the fifty officers who were fired or forced to resign in the last year had histories of citizen complaints. Department officials are hopeful that the system will produce an early identification of officers who would benefit from counseling before committing serious administrative violations.
“Once the system comes on board, it will enable commanders to better determine whether officers on the beat need more assistance or whether they are not performing in areas we need them to perform,” Malone said.
The program will track an officer’s arrests, car stops, vehicle accidents, missed court dates, sick leave usage, and citizen complaints and compare them with other similarly assigned officers. Officers who fall outside the norm will be identified and their supervisors alerted.
But, Gary McLhinney, President of Lodge 3 of the Fraternal Order of Police, said, “It’s going to cause highly aggressive police officers to not do their jobs. I don’t think a computer database is the right way to do this. We have supervisors. We have a structured command staff. It’s the jobs of sergeants, lieutenants, and majors to supervise. If they are not doing their jobs, replace them. Do not use a time-consuming and expensive computer system that is just going to put numbers on paper.”
McLhinney also expressed concern that criminals could manipulate the system by filing multiple complaints against good performing police officers.
The BPD is not waiting for completion of the computer system to identify potential problem officers. Recently, 77 officers who had been the subject of at least three citizen complaints in the past 18 months were identified. About two dozen of these officers are scheduled to begin a nine-day training session on how to handle confrontational situations and how to manage job stress.
The computer system is expected to be up and running within one year. The development cost of the system has not been announced.
Retrofitting shields around the gas tank on 350,000 Ford police cars is the next step in a comprehensive program to make police vehicles safer, according to a plan recently announced by the Ford Motor Company and the Attorney General of Arizona who has been investigating the safety of the vehicles. Ford, the manufacturer of the popular Crown Victoria Police Interceptor, has agreed to pay for modifications to the vehicle’s gasoline tank. In recent years, at least a dozen officers have died in fiery rear-end collisions of Crown Victorias, which make up about 80 percent of all police vehicles on the road.
Shields made of plastic and rubber will be installed on the rear axle, the differential, and underneath the gas tank. Additionally, Ford will provide a “trunk package” for vehicles that carry sharp-edged, heavy equipment. Also, a trunk template will be available to show where trunk-mounted police equipment can be placed safely. One estimate places the repair costs for all of the vehicles at $50 million. In making the retrofit announcement Ford also announced establishment of a Blue Ribbon Panel to identify best practices to help officers avoid accidents and to improve officer safety during traffic stops. A Technical Task Force of scientists and engineers will examine engineering and design factors as a means to improve police vehicle safety.
Phoenix, which recently announced it would purchase 107 Crown Victorias, plans to fit all of its 700 police vehicles with fuel tank bladders similar to those used on racecars. According to a press release, “Ford cannot be optimistic in the short-term for high-volume, heavy-duty applications of the fuel tank bladders.”
Ford has established a website devoted to police vehicle safety, www.cvpi.com.
Union shareholders of a primary manufacturer of police body armor announced plans to sue the company after reports that the vests had failed New York Police Department (NYPD) tests. The suit follows negotiations between the manufacturer, Point Blank Body Armor Company, and the NYPD, which had expressed concerns that some 6,300 newly purchased vests would not stop high-speed bullets. The concerns arose after several vests reportedly failed NYPD tests.
Point Blank, which is headquartered on Long Island but manufactures the bullet-resistant vests in Florida, has agreed to replace 1,000 of the NYPD vests for free and supply another 5,300 at a discount. A Point Blank spokesman attributed the lawsuit to labor unrest at the Florida plant where an AFL-CIO affiliated union is attempting to organize workers. Commenting on the lawsuit, David H. Brooks, Chief Executive Officer of DHB Industries Inc., the Point Blank parent company, stated, “This is a frivolous lawsuit that we intend to defend vigorously and are confident the suit will be promptly dismissed.”
However, Sam Cabral, President of the International Union of Police Associations, also an AFL affiliate, was quoted by the Associated Press as saying the union was advising its members to avoid buying Point Blank vests. “There’s just no room for mistakes in our profession,” Cabral said.
Leaders of the Union of Needletrades, Industrial and Textile Employees (UNITE), which is seeking to represent Point Blank workers, also charged that American soldiers in Afghanistan could be at risk because they wear the company’s products. A Pentagon spokesman stated that the military had received no complaints about the quality of point blank vests.
The union representing Massachusetts Bay Transit Authority (MBTA) police
officers has filed a grievance complaining against the agency’s zero tolerance
policy on swearing. The grievance comes on the heels of a federal lawsuit
against the department alleging that MBTA officers violated the rights of
juvenile suspects by using “profane and vulgar language” and racial epithets
against them.
The MBTA Police Association is not fighting for the right to swear on the
job but rather is objecting to the chief’s policy of suspending without pay
offending officers, even first offenders. The union claims that the
automatic suspension for use of foul language violates their labor contract.
Former Chief Thomas O’Loughlin instituted the policy in 2000 after a motorist “gave the finger” to a MBTA police officer who was directing traffic. The officer responded in kind. After looking into the problem, the chief determined that two-thirds of all citizen complaints related to alleged use of inappropriate language.
Lisa Thurau-Gray, a lawyer representing eleven juveniles in the suit against the MBTA Police Department called the union’s grievance ill advised. “That tells me they feel that they think they need strong words to be listened to,” she said. “I think it fosters a very abusive climate.”
Not so, said union president Paul Byrne. “There are all kinds of
different kinds of situations involved here,” Byrne stated. “Half the
kids you run into, the words they’re using are astounding. We’re human.
We make mistakes.”
Police received a call from a local elementary school regarding some older
children who were harassing younger children. Driebel, a police officer,
and his partner responded to the scene. Upon their arrival the alleged
offenders had departed. The two police officers sought to locate the
offenders and, after an investigation, were able to identify one of the individuals.
Upon confronting the individual, a young boy, he fled from the officers.
Driebel gave chase but was having no success in catching him. Realizing
he was not going to apprehend the fleeing youth, Driebel, out of frustration,
threw his police radio at the boy, inadvertently striking him in the head.
The youth continued to flee and escaped. Subsequently, the youth experienced
dizziness and complained to an adult who took the child to the police station.
An internal affairs investigation was launched regarding the matter.
A supervisor located Driebel and ordered him to “stand by” in the police
garage until further instructed. Driebel complied with this order and
stayed at the police garage for some four hours. He ultimately received
overtime pay for this time and at all times retained his badge, gun, and
other police equipment. At no time was anyone assigned to monitor him.
Following further investigation, internal affairs personnel concluded that
Driebel had committed battery by throwing the radio at the fleeing youth.
Consequently, the officer, who had been standing by for four hours, was summoned
to the captain’s office and placed under formal arrest. Without extending
Driebel the opportunity to provide a more complete account of the incident,
he was ordered to surrender all police-issued equipment and identification.
He was advised that he was the subject of a criminal investigation and read
his Miranda rights. Driebel was taken to the jail, charged, and then
released on bail. When the case was referred to the local prosecutor,
he declined to prosecute, taking the view that the evidence failed to satisfy
the intent requirement of the battery statute. Thus, criminal charges
were dropped although Driebel did receive a twenty-day suspension for failing
to report the use of force.
In another incident, Houston, Sgrignuoli, and Pinchard, police officers assigned to a gang crimes task force, became involved in an incident involving a Latino street gang. A gang member alleged that Houston and Pinchard had made a traffic stop of him and subsequently threatened to charge him with narcotics possession unless the gang member obtained a weapon for the police officers. The gang member also complained that the officers took thirty dollars from him. Internal affairs officers set up a sting in hopes of confirming the conduct on the part of the officers. On that day, Houston and Sgrignuoli were working together while Pinchard was at a training session. Two guns were placed in a dumpster and a gang member, under orders from internal affairs officers, telephoned Houston and advised him of the location of the guns. Houston and Sgrignuoli proceeded to the location to retrieve the firearms. Upon observing this activity, internal affairs investigators exited their vehicles, separated the two officers, and commenced a follow-up investigation. Sgrignuoli was seized by a detective and informed that he was the subject of a criminal investigation. When Sgrignuoli sought further explanation, the detectives refused to tell him. Sgrignuoli was taken to police headquarters where he sat silently in an office for several hours accompanied by a detective. Eventually, he was read his rights and demanded legal counsel. Thirty minutes later the detectives returned and told him he was no longer under investigation for criminal activity, but was under administrative investigation. Subsequently, Sgrignuoli was simply directed to leave the office and return to duty. He was paid for the hours that he worked that day, including the time he was cooling his heels in the internal affairs office. Sgrignuoli was never charged with any crime or placed on any administrative suspension for his alleged conduct. Evidence later suggested that his involvement was the result merely of having been working with Houston on that particular day.
Similarly, Houston was taken to police headquarters and advised that he was under investigation of a crime. After approximately three hours at the department, Houston was read his Miranda rights. When he requested an attorney and declined to make any statement, the detectives changed their course and converted the investigation from a criminal inquiry to an internal inquiry. After several minutes, Houston also was instructed to report back to the gang squad. At no time did anyone touch him nor was he relieved of any departmental equipment. In Pinchard’s case, on the same day, he was ordered to report to the internal affairs office. He was allowed to drive his squad car to police headquarters. Upon entering the office, two detectives read him his Miranda rights and he exercised his right to silence. After thirty minutes in the room, he was instructed to return to his assignment. He was never physically restrained nor relieved of any departmental equipment. The four officers subsequently filed suit alleging that they had been subjected to an unreasonable seizure in violation of their Fourth Amendment rights. Trial court granted summary judgment for the city in all four instances and officers appeal.
HELD: The law is well settled that police officers do not surrender their freedom when joining the police force. At the same time, nothing in the Fourth Amendment endows public employees with greater workplace rights than those enjoyed by their counterparts in the private sector. In cases involving police officers, courts must distinguish between a police department’s actions in its capacity as an employer and its actions as the law enforcement arm of the state. While the record indicates that certain command officers within the police department seem to engage in a systematic pattern of making officers feel unnecessarily uncomfortable when the department sets about to conduct internal investigations, the level of respect afforded the officers is not a matter for federal courts to review. Rather, the judiciary should defer, whenever consistent with the Constitution, to the expertise of law enforcement professionals in dealing with their personnel. However, prior law holds that a police department has the authority to direct its officers to remain on duty or to accompany detectives to the department’s headquarters and either answer questions from supervisory officers as part of a criminal investigation or invoke their Fifth Amendment rights against self-incrimination. Such action does not violate the Fourth Amendment. Plaintiffs in this case, like other officers, have agreed to the terms and conditions of their employment. One such term is to promptly obey any lawful order issued by a higher-ranking officer. If an officer declines to cooperate with an investigation or refuses to obey a lawful order, he exposes himself to potential discipline. However, such a rule does not permit the police department to seize an officer without probable cause when the officer refuses to obey a command to remain on duty or report to a particular location. Rather a police department’s options are somewhat limited when dealing with an officer who disobeys a lawful order. First, the department may institute an investigation that may result in disciplinary action and place the officer on administrative leave while conducting such an investigation. Second, the superior officer may briefly stop and question the officer consistent with the law established for such detentions. Or third, the department may seize, arrest, and detain the officer for custodial interrogation provided the arrest is supported by probable cause. If the matter is a criminal investigation, any seizure must be based on probable cause. A lesser standard is permissible only in internal disciplinary investigations.
In applying these principles to the cases at hand, it is apparent that
neither Houston nor Pinchard were ever “seized” within the meaning of the
Fourth Amendment. Thus, the issue of probable cause does not come into
play. While officer Driebel was seized, there was probable cause for
his detention. On the other hand, officer Sgrignuoli was apparently
unlawfully seized without probable cause. In Driebel’s case, his being
ordered to stand by was not a seizure within the meaning of the Fourth Amendment,
but once he was formally arrested, he was seized. However, the evidence
reflects that the officers had probable cause to believe he had committed
a battery. Probable cause does not require the same type of specific
evidence as would be needed to support a conviction. Thus, the fact
the prosecutor later declined to proffer charges is not determinative of
the existence of probable cause. Pinchard was not seized because he
was allowed to drive to the police station by himself. He was never
touched by a detective nor threatened with physical restraint nor placed
in a locked room. In fact, upon his refusal to speak with the detectives,
he was instructed to go back to work for the remainder of the shift.
The record in Houston’s case indicates that while he was ordered to go to
the department, he has failed to provide evidence that he would have been
physically taken to the police station had he refused to comply with the
order. While Houston sat in silence for approximately three hours in
the presence of a detective and was given the Miranda warning, he continued
to retain possession of his weapon and identification and was compensated
for the time he was at the headquarters building. Thus, the conduct
does not rise to the level of formal seizure within the meaning of the Fourth
Amendment. Only Sgrignuoli was seized without probable cause.
Evidence reflects that he was actually grabbed by an officer and his freedom
of movement restricted. Likewise, there is admittedly no evidence that
he was involved in any of the incidents in question. He just happened
to be unlucky enough to be partnered up with Houston on the night in question.
His case is remanded for further proceedings.
Finally, the police chief argues that he is entitled to qualified immunity because he reasonably believed that it was lawful to detain a police officer under his command based on the lesser standard of reasonable suspicion rather than probable cause. However, the law was clearly established at the time that a law enforcement officer could not seize another officer as part of a criminal investigation without probable cause. The chief’s claim of immunity will not hold. In sum, it is unconstitutional to seize a police officer as part of a criminal investigation on anything less than a determination of probable cause. Trial judge erred in granting summary judgment on Sgrignuoli’s claim, but summary judgments for defendants on all other claims affirmed. [Driebel v. City of Milwaukee, Wisconsin, 298 F.3d 622 (7th Cir. 2002)]
When the Supreme Court opened its new term October 7, justices proved to be disinclined to consider the many police labor and personnel cases requesting their review. The opening of the session resulted in rejecting consideration of several matters that had been filed over the summer.
Justices rejected the appeal in Gravitte v. North Carolina Division of Motor Vehicles, No. 02-114. Here the North Carolina Police Benevolent Association sought to void the agency’s “ticket quota” requirement for its officers. The union argued that the requirement of a minimum number of enforcement actions daily produced selective enforcement of the law and was unconstitutional. Lower federal courts found that such performance standards violated no constitutional right of the employee. Supreme Court inaction leaves in place the lower courts’ rejection of this claim.
Also rejected were two sex discrimination suits filed by female police officers. In Hilt-Dyson v. City of Chicago, Illinois, No. 01-1758, a female police officer claimed that the manner in which a supervisor inspected her uniform, such as staring at her chest, along with an incident of inappropriate touching of her shoulders created a sexually hostile work environment. Lower courts rejected the claim on the grounds that the incidents were minor in nature and did not rise to the level of a hostile work environment. Meanwhile, in Ratley v. City of Jacksonville, Florida, No. 02-134, the justices left in place a lower court ruling that a female officer, who was terminated for falsely reporting a fire and later lied about it, failed to show that male officers who made false reports were treated more favorably than she. The inaction leaves in place a lower court’s determination that no unlawful sex discrimination was established.
The high court also declined to consider a challenge to the promotion testing system of the Memphis Police Department. Justices left intact a lower court ruling in Ashton v. City of Memphis, Tennessee, No. 01-1707, that white police officers who scored too low on the sergeant’s examination to be promoted lacked legal standing to challenge the out of rank-order promotion of black officers who passed the exam.
Awaiting a review decision is Perez v. Miami-Dade County, Florida, No. 02-269. In this matter, an undercover detective alleges that an automobile driven by a uniformed officer intentionally struck him. The incident occurred when Perez was mistaken for a fleeing robbery suspect. The injured officer claimed the act was the result of the use of force policy and custom of the police department and thereby qualified as a violation of his constitutional rights. Perez is challenging a federal appeals court reversal of a trial court’s summary judgment in his favor. The trial court originally ruled for Perez as a result of procedural missteps made by the county. The Supreme Court has yet to act on the matter.
In 1996, the city enacted a fair share resolution that provided authorization for the collection of fair share fees from individuals who were not members of a union but who worked under a collective bargaining agreement with the city. A group of non-union members brought suit alleging that the city’s procedures violated their First Amendment rights through compulsory deduction of union fair share dues. Trial court ruled for city and union and non-union members appeal.
HELD: U.S. Supreme Court has ruled that requiring employees to help finance a union serving as a collective bargaining agent is constitutionally justified only if there has been a legislative assessment by the public employer. Here, the city enacted a resolution that expressly provided that the collective bargaining agreement with the city may include a fair share provision if at least fifty percent of the recognized bargaining unit is made up of union members. This resolution conveys the clear intent to permit the collection of fair share dues. Non-union members are only required to pay the fair share fee that represents the union’s cost of bargaining on their behalf. The desirability of labor peace and eliminating free riders justifies the payment of fair share dues for the purposes of collective bargaining, contract admin-istration, and grievance adjustment. Some courts, however, have found that fair share resolutions conflict with right-to-work laws. Most of these cases, however, have occurred where the fair share deduction was exactly equal to the amount of dues paid by union members. In cases where courts have found no conflict between fair share deductions and right-to-work laws, the deductions have consistently been limited to proportionate costs.
The fair share resolution in this case specifically limits the deductions to costs related to the employee’s proportionate share of the union’s cost of administering the contract. Thus, the resolution is consistent with this requirement. Prior case law also holds that non-union members must be given notice on how their fair share fee is calculated. The Supreme Court has held that the union need not provide the non-members with an exhaustive and detailed list of all of its expenditures, but must adequately disclose major categories of expenses as well as verification by an independent auditor. A simple statement that the union’s expenses were audited provides little assistance to a non-union member seeking to challenge the deduction. It is essential that the notice to non-union members provide an auditor’s explanation as to why the fees to be deducted are permissible. It is immaterial whether this explanation comes in the form of a report or underlying notes accompanying the audit. If the report itself is simply a conclusion that the deductions have been audited, the disclosure of the notes may prove necessary. It is the substance of the information, rather than the nomenclature of the means by which it is communicated, that is the proper focus of whether the disclosure requirement is met.
The non-members also object to a portion of their fee being sent to the local union’s international organization. The Supreme Court has held that a local bargaining representative may charge objecting employees their pro rata share of costs associated with otherwise eligible activities of the state and national affiliates, even if those activities are not performed for the direct benefit of the objecting employees. The language of the fair share resolution in this case clearly contemplates that non-members will be charged their proportionate share of union programs that are available to all bargaining units. The use of the word “union” in the law lacks clear intent to confine its application to permissible expenses occurred only by the local as opposed to the broader national union. There is evidence in the record, however, that a portion of the fees went directly to a national union. Such fees do not benefit the members of the local organization and their collection violates previous stated principles. The trial court is directed to hold a hearing to determine which fees are attributable to bargaining-related expenses as distinguished from those that do not benefit the local bargaining unit.
Finally, the non-members seek to avoid the indemnification agreement between the city and the union. The collective bargaining agreement requires the union to indemnify and hold the city harmless for all claims arising out of the imposition of the agency fee. The non-union members argue these provisions are void and unenforceable against public policy inherent in the First Amendment. Prior case law holds that such blanket indemnification clauses are repugnant to public policy because both parties to a fair share agreement must be held accountable for their respective responsibilities. A clause that relieves the employer of all consequences for failure to assume and conscientiously carry out its duties is against public policy. Thus, the indemnification agreement in this case is overbroad and unconstitutional. Case remanded for further proceedings. [Wessel v. City of Albuquerque, New Mexico, 299 F.3d 1186 (10th Cir. 2002)]
Zinnermon was a probationary police officer. She reported to a supervisor that she had witnessed an incident in which her partner and another officer used excessive force against a suspect. As instructed by her supervisor, she filled out a written report regarding the incident. A few weeks later, she was accused of making a false statement and was interrogated by internal affairs personnel. She was told that any statement she made could be used as a basis for her discharge. Subsequently, she was informed that her employment had been terminated, one day prior to the day she would have completed her probationary period and would have been protected by the union contract. Zinnermon files suit alleging that her discharge occurred in retaliation for her report against her fellow officers. The city moves for summary judgment.
HELD: Zinnermon’s complaint alleges that the police department has de facto policy of failing to supervise and control police officers who commit misconduct and that a police “code of silence” causes officers to remain silent in the face of such misconduct. She claims she went against these de facto policies and reported misconduct as a citizen acting on a matter of public concern. Consequently, she claims her constitutional rights were violated when she was fired as a result of her reports. As a public employee, Zinnermon’s speech is protected if she speaks as a citizen upon matters of public concern. Whether an individual’s speech addresses a matter of public concern is determined by the content, form, and context of her alleged statements. It is well-settled that police brutality and misconduct are matters of public concern. Police department employees’ reports of brutality come under the protection of the First Amendment if they are the product of some independent discretion or judgment.
The city counters that the report is not protected by the First Amendment since Zinnermon was on duty as a police officer and consequently had the duty to report the misconduct. Certainly, Zinnermon was under a general duty to report misconduct to her supervisors, but it does not appear that this was a routine task. She alleges that she witnessed and reported an event in direct conflict with the de facto department policy of remaining silent. This active reporting, while generally required of all officers, did involve independent discretion and judgment. Thus, she should be allowed to continue with her First Amendment claim. She also alleges retaliatory discharge, a state tort claim. However, as the city correctly points out, it is immune from that claim because of Illinois law regarding sovereign immunity. Motion to dismiss constitutional claim denied. Motion to dismiss state claim granted. Matter to proceed to trial. [Zinnermon v. City of Chicago, Illinois, 209 F. Supp. 2d 908 (N.D. Ill. 2002)]
In January 1996, Martino became a police officer for the city of Des Plaines. Three months later, he ruptured two discs in his lower back and developed a symptom called “foot drop” that prevented him from running. Eventually, he was terminated from the department and granted a fifty percent disability pension. Two years later, Martino was hired as a police officer by Lake Villa, a town with a population of 2,300. After learning that Martino had been working as a full-time officer for Lake Villa, the Des Plaines pension board ordered him to show cause why his disability pension should not be revoked. At the hearing conducted before the pension board, medical evidence was presented that he continued to suffer from the same medical conditions that precipitated his initial disability retirement. The police chief of Lake Villa testified that he was aware of Martino’s physical limitation, but hired him anyway because of his experience and education. The chief further noted that Martino was rarely the only officer on duty and that assistance was rapidly available to him. After hearing the evidence, the pension board revoked the pension due to Martino’s employment as a full time officer in the other community. Police officer appeals.
HELD: Under Illinois law, a police officer is entitled to a disability
pension when he becomes disabled as a result of any cause and he is found
to be mentally or physically disabled so as to render necessary retirement
from police service. An award of a disability pension must be based
upon a medical determination by several physicians selected by the pension
board. In this case, there was medical evidence that Martino suffered
from a disability and evidence that he had not yet recovered from that disability.
Thus, he still meets the statutory definition for eligibility for a pension.
The pension board, however, argues that to grant Martino a pension while
he is working at another agency violates public policy. While the term
“public policy” lacks precise definition, it may be stated generally as a
legal principle that no one may do that which has the tendency to injure
the public welfare. However, there is no public policy in the State
of Illinois preventing a disabled police officer from receiving a disability
pension from one municipality while being employed as a police officer by
another. There is also no public policy to prevent a disabled officer
from securing full-time police work in another community that is willing
to accommodate his disability. The Lake Villa chief testified that
he was aware of the disability and hired Martino because of his education
and experience. Martino remains disabled from working for the first
police department and his pension from that department works no fraud or
harm on the public. Affirmed for police officer reinstating disability
pension. [Martino v. Police Pension Board of the City of Des Plaines,
772 N.E.2d 289 (Ill. App. Ct. 2002)]
Mack was a Detroit police officer. She obtained the status of lieutenant. While being assigned to the sex crime unit, she allegedly was repeatedly propositioned for sex by male supervisors. She rebuffed these advances in part because she was a lesbian. Mack complained to her superiors, but they allegedly took no action because of her sexual orientation. She subsequently complained that she was given undesirable duties as a result of her sexual orientation. Mack ultimately retired from the police force and brought suit against the city, maintaining that she had been the victim of sex discrimination and sexual orientation discrimination in violation of the city charter. Trial court granted city’s motion for summary judgment on the grounds that the city was immune from suit on this matter. On appeal, the intermediate court of appeals held that the city’s policy of prohibiting discrimination based on sex and sexual orientation prevailed and that Mack did have a claim. City appeals.
HELD: Detroit city charter states that the city has an affirmative duty to secure the equal protection of the law for each person and that no person shall be denied the enjoyment of civil and political rights or be discriminated against because of their sex or sexual orientation. Mack argues this provision grants her power to bring a suit against the city for her alleged sex discrimination and sexual orientation discrimination. However, a careful review of Michigan law reveals that the city charter cannot lawfully create a cause of action against the city without controvening the state governmental immunity law. The Michigan Constitution grants cities the power to enact ordinances subject to the constitution and laws of the state. The Michigan Governmental Tort Liability Act (GTLA) expressly states that a governmental agency is immune from tort liability if it engages in the exercise or discharge of a governmental function. The statute does recognize five exceptions to this rule, but none of those exceptions relate to the matter at hand. Likewise, no state statute grants governmental agencies the authority to create an immunity exception for sexual orientation discrimination or waive immunity in the area of civil rights. In sum, without express legislative authorization, the City of Detroit cannot create a cause of action against itself contrary to the broad scope of governmental immunity established by the GTLA. Court of appeals opinion reversed reinstating dismissal of suit. [Mack v. City of Detroit, 649 N.W.2d 47 (Mich. 2002)]
Voters approved collective bargaining for the city’s police department. A month after the election, the McAllen Police Officer’s Union (MPOU) sent the city a petition which contained 133 signatures of the department’s 228 officers with the request that the MPOU be recognized by the city as the exclusive bargaining agent for the officers. The city manager initially expressed concerns about the validity of the petition. In response to these concerns, the union posted a notice on the bulletin board advising officers of the city manager’s concerns of possible coercion and stating that any officers who felt they had been intimidated into signing the petition should contact the city manager.
Some weeks later, after his concerns were satisfied, the city manager recommended to the city commission that it accept the MPOU’s petition as evidence of majority representation. When the city commission considered the matter, a rival union, the McAllen Professional Law Enforcement Association (MPLEA), spoke to the commission but did not present any evidence that it represented a majority of the officers. After hearing from the MPLEA, the commission voted to recognize MPOU as the bargaining agent. MPLEA responded by filing suit against the city. Trial court, after hearing arguments from both parties, found that the city should hold an election to determine the collective bargaining agent. MPOU appeals.
HELD: The applicable Texas statute provides that a public employer shall recognize an association selected by the majority of police officers as the bargaining agent. The statute, however, does not specify how a majority of police officers shall select the exclusive bargaining agent. A similar statute applicable to fire fighters, however, notes that a petition signed by a majority of the fire fighters is a proper method for selecting a bargaining agent. This statute provides guidelines in this case and the petition method would appear to be the appropriate one to use to select a police bargaining agent.
Secondly, there is no evidence in the record to support the trial court finding regarding the lack of opportunity for MPLEA to present its views to the city. Nor is there any evidence to suggest the MPLEA was prevented from contacting officers to determine whether they had voluntarily endorsed the MPOU petition. In this appeal, MPOU contends that only a public employer has standing to question whether an election must be held to determine a bargaining agent. State statute provides that a question of whether an association is the majority representative shall be resolved by a fair election. But it does not state who may raise that question. However, when that statute is read in conjunction with the other statute that requires the public employer recognize an association selected by a majority of police officers, it logically follows that the public employer should be allowed to question the evidence of majority representation. However, in addition, the legislature has specified that police officers “like employees in the private sector” shall have the right to organize and bargain. Private sector employees, according to the rulings of the National Labor Relations Board (NLRB), can contest the support of a competing labor organization only by filing a petition that indicates substantial support for the rival organization. Thus, following the reasoning of the NLRB, the mere existence of a competing union does not raise a question as to who is the majority representative of employees. However, a competing union may raise that question by presenting evidence to the public employer that there is substantial support for the rival organization. A substantial support requirement prevents a single disgruntled person from frivolously forcing an election on the issue. Thus, MPLEA has standing to raise a question as to whether MPOU is the majority representative. But to do so, it must show that it has substantial support among the city’s police officers. There is no evidence in the record establishing such support and, thus, no election need be held. Reversed for MPOU upholding their recognition as bargaining agent. [McAllen Police Officer’s Union v. Tamez, 81 S.W.3d 401 (Tex. App. 2002)]
A township patrol officer filed for elective office in the local primary election. Seeking elective office violated a variety of department policies. Consequently, the township terminated the officer from employment. The police union filed a grievance over the matter. The dispute went to an arbitrator. Under the collective bargaining agreement, the arbitrator was limited to establishing an award that could include back pay, but back pay was restricted to a term of not more than one year. When the arbitration hearing was finally held, the arbitrator found that the township had failed to comply with the progressive disciplinary schedule set out in the rules that the officer allegedly violated. Thus, the arbitrator ruled that the charges brought against the officer were premature and the officer, therefore, had not been terminated for just cause. The officer was ordered reinstated with seniority and back pay totaling approximately twenty-one months.
The township sought review of the award alleging that the arbitrator acted outside his jurisdiction by awarding the twenty-one months of back pay when the collective bargaining agreement clearly limited such relief to no more than one year. Trial court found that since the arbitrator neither mandated an illegal act nor required the township to do that which it could not do voluntarily, the award had to be affirmed. Township appeals.
HELD: Judicial review of arbitration decisions is narrow in Pennsylvania. An arbitration decision can be overturned only if it is outside the jurisdiction of the arbitrator, the proceedings were irregular, the arbitrator exceeded his powers, or there was a deprivation of constitutional rights. In this case, the township argues that the arbitrator acted outside his jurisdiction by awarding the twenty-one months of back pay. However, prior Pennsylvania law establishes that an arbitrator acts in excess of his authority when he mandates an illegal act to be carried out or requires the public employer to do that which it could not do voluntarily. Neither of those rules fit this case. Because the jurisdiction of an arbitrator goes to his power to decide an issue and dispute rather than his fashioning of an award, the court need only decide if the arbitrator had jurisdiction to address the issue in dispute. Here, the question was whether just cause existed to terminate the patrol officer. Neither party alleges that the arbitrator did not have jurisdiction to determine this issue and, as a consequence, the court cannot say that he acted outside his jurisdiction. The court is compelled to affirm the arbitrator’s award. [Bensalem Township v. Bensalem Township Police Benevolent Association, 803 A.2d 239 (Pa. Commw. Ct. 2002)]
Washington statute provides that a retired officer is entitled to a pension of “fifty percent of the amount of salary at any time hereinafter attached to the position” held by the retired officer. Until 1999, pensions were calculated using the city’s step and grade structure that provided for advancement through steps within a given rank based on longevity and satisfactory performance of service. Consequently, retired officers often received a pension based on the top pay step within their pay grade. In 1999, however, the city implemented a performance-based system and began calculating pensions based on fifty percent of the mid point of the salary range for each position rather than fifty percent of the highest step for each position. Even though various retired officers continued to receive increases in their pension due to pay raises, they nonetheless filed suit against the city claiming that the alteration in the pay schedule and the consequential alteration of their pension payments uncon-stitutionally impaired obligation of contract. Trial court rejected the argument and granted judgment for the city. Retired officers appeal.
HELD: In the State of Washington, pension rights are contractual rights that vest at the beginning of the employment relationship. Pension rights vesting from the inception of employment become property rights and may not be divested unless the changes are equitable to the employee or are necessary to maintain the flexibility and integrity of the pension system. Both the state and federal constitutions prohibit any form of legislative action impairing existing obligations. This prohibition against the impairment of contract is not absolute, however.
Courts use a three-part test to determine if there has been an impairment
of a public contract: (1) Is there a contractual relationship? (2) Does the
legislative action substantially impair the contractual relationship? and
(3) If there is substantial impairment, is it reasonable and necessary to
serve the legislative purpose? The cases suggest fluctuating pensions
should reflect structural changes made in the salary schedule after retirement,
if the retirees would have benefited from the change had they continued working.
In other words, if a retiree’s conduct established that he would have qualified
for the new higher rate of pay or additional compensation associated with
the structural schedule change if still employed, then his pension should
be based on the higher compensation. In this case, however, the city
argues that the salary associated with the mid-point of the position constitutes
the “salary” for pension purposes. The city asserts that attainment
of higher salary within a pay grade is dependent upon exemplary performance.
A review of the evidence reveals, however, that the city has adopted a rather
poorly defined system for evaluation, making it impossible to determine whether
the pensioner’s conduct while working would qualify them for these merit
raises. While the city may adopt a new job classification system, it
may not use the adoption of a poorly defined system as a backdoor way for
reducing pensions. Such an act would impair contractual rights unlawfully.
By adopting this poorly defined job classification, the city has detrimentally
impacted retirees’ vested rights to a fluctuating pension. Reversed
for retired officers. [Bates v. City of Richland, 51 P.3d 816 (Wash.
Ct. App. 2002)]
police officers
The new municipal budget awards Lubbock officers a five percent across-the-board pay increase. City council hiked the city manager’s original proposal of three percent. With the increase, police officers will start at about $39,760. Veteran officers will draw a base just shy of $48,000.
police officers
Pontiac City Council has approved new salary provisions of a three-year
contract with Lodge 89 of the Fraternal Order of Police. The pact,
which is retroactive to April 2001, grants a 3.5 percent wage hike in each
year. The contract also calls for creation of a corporal’s rank in
order to allow officers to gain supervisory experience prior to being promoted
to sergeant.