The national election news was not good for public safety unions. The selection of a majority of Republicans in both houses of Congress probably means that a national collective bargaining bill is dead for at least two years. The measure, which would grant bargaining rights to police officers and fire fighters nationwide, had been gaining slow but steady support in the House of Representatives and even came to the floor of the Senate last year but was stalled on a procedural vote. New Senate Majority Leader Trent Lott (Rep.-Miss.) reportedly opposes the bill and is unlikely to permit its consideration in the next session, according to Capitol Hill insiders.
Meanwhile, union leaders can claim victories at the local level. Voters in Baltimore County and Anne Arundel County, Maryland, approved binding arbitration for public safety personnel. Law enforcement and fire fighter unions in Baltimore had campaigned heavily for the initiative against only token opposition. The Anne Arundel referendum passed by a three-to-one majority while the Baltimore County proposal garnered a four-to-one margin of approval.
In California, voters blessed binding arbitration for Monterey police officers and fire fighters by a 62 percent margin. Also, the Los Angeles Police Department will remain intact as voters rejected a secession effort to separate the San Fernando Valley and Hollywood from the rest of the city and create two new municipalities. The San Fernando Valley secession proposal failed 67 percent to 33 percent while the Hollywood effort was more soundly defeated. Had the proposals passed, the San Fernando Valley would have become the sixth largest city in the country. Passage would have required a reorganization of public safety services within the cities.
police solicitations could be affected
The use of telemarketers to raise funds for police organizations and affiliated “badge charities” is a topic that splits the police labor community. Some see telemarketers as a way to raise funds for noble purposes, such as acquisition of protective equipment, while others argue that the tactics of professional telephone solicitors in representing police groups are misleading at best and purely fraudulent at worse. In November, the U.S. Supreme Court decided to weigh in on the debate. Justices agreed to hear a case that examines a Constitutional loophole that permits telemarketers to pocket most of the money they raise on behalf of charities.
In an Illinois case that could have broad implications nationwide, the court will decide whether the Constitution’s guarantee of free speech protects fundraisers who do not tell donors that only a small fraction of their contributions will go to charity. The case, State of Illinois v. Telemarketing Associates, Inc., No. 01-1806, stems from a fraud action that Illinois brought against a company that raised money for Vietnam veterans. The charity, VietNow, had an agreement with Telemarketing Associates, Inc., in which the charity received 15 percent of the money and the fundraiser kept the remaining 85 percent for salaries, expenses, and profit. VietNow had no problem with the arrangement but the state did. A civil suit charging fraud and breach of fiduciary responsibility regarding charitable funds was dismissed on free speech grounds. On appeal, the Illinois Supreme Court ruled that prior case law protects charitable solicitations even if the overhead fees are viewed by some as excessive.
The Illinois Supreme Court “transformed the First Amendment into a license for unscrupulous fundraisers to defraud the public in the name of raising money for charity,” Illinois Attorney General James Ryan told the nation’s high court in his filing.
State officials want to prove that telemarketers intentionally misled donors. But, Michael Ficaro, an attorney for the telemarketing company, said to allow the lawsuit “would place all charitable fundraisers at the mercy (of) the attorney general’s whims. Potentially any gross fee can be called too high. Potentially any contractor arrangement can be called unreasonable.” He said the company raised money for VietNow and educated the public about the needs of veterans.
Ryan said people were told that their donations would be used for food and shelter for hungry and homeless veterans. In reality, just three percent was used for that, he said.
Use of commercial telemarketers by police associations is commonplace in many states. Claims of abuse have also been commonplace. In New Jersey, several law enforcement unions have come under fire for using telemarketers to raise money supposedly for charity. An investigation this year by the Bergen County Record newspaper found that the state Fraternal Order of Police garnered only $656,000 out of $3.1 million raised by phone solicitors on its behalf. In 2000, the state sued a solicitation company and several law enforcement organizations claiming a variety of fraudulent activities, such as a program to solicit funds for protective vests netting only $26,000 for purchase of vests out of $1.9 million raised.
Similarly, an investigation by a Chicago television station found that phone solicitors employed convicted thieves, robbers, and drug offenders to work the phones on behalf of public safety groups. Individual solicitors earned as much as $70,000 annually plying their trade. The investigation found that solicitors often represented themselves as “the police.”
In Texas, a deceptive trade practices lawsuit filed by the state attorney general against telemarketers and the Harris County Deputies’ Organization recently resulted in a $275,000 settlement. The telemarketers allegedly used the Marine Corps Toys for Tots name without permission as part of a union fundraising drive. The Marine Corps knew nothing of the solicitation and the charity received only $1,700 worth of bicycles from the phone solicitation which raised $250,000. The union and the telemarketers agreed to the settlement but admitted no wrongdoing. A criminal investigation into the incident is continuing.
Many states require commercial solicitors to register but do not limit their fees. In a series of decisions in the 1980s, the Supreme Court ruled against states in disputes over charitable solicitations. In 1988, the court barred states from placing strict regulations on professional, for-profit organizations that solicit contributions for charities.
A decision in the Telemarketing Associates case likely will not be forthcoming
until June.
Commonly, a municipal employer pays attorney’s fees for public safety personnel who wind up in the courthouse as a result of doing their job. Likely no one envisioned a situation like that in the New Jersey town of Hasbrouck Heights where city fathers are paying $250 an hour to settle a dispute between a fire fighter and a police officer.
The conflict arose September 16 when police officer Joseph Rinke and fire fighter Robert Knobloch responded to a fire alarm at a local school. After the incident was determined to be a false alarm, Rinke and Knobloch began arguing in the street about whose emergency vehicle should move to make way for the other. The following day, Officer Rinke went to the firehouse and, after another argument with Knobloch, filed complaints charging the fire fighter with careless driving, and following another vehicle too closely.
After town officials, including the two department chiefs, could not persuade the men to compromise, Knobloch filed complaints charging the officer with careless driving, failure to yield to an emergency vehicle, and being parked within 200 feet of a fire truck.
The town, in an awkward position, is paying the legal fees for each man - $125 per hour. A court date for the various charges has not been set.
Under New Jersey law and the police union contract, the town is obligated
to defend Rinke from charges arising out of the performance of his duties.
Knobloch, a volunteer fire fighter, is entitled to the same courtesy, a
town official said.
over records release
The Elizabeth City, North Carolina, police chief has been restricted to administrative duties pending the outcome of a hearing on his release of police personnel records during a news conference in March. Three Elizabeth City police officers and a former officer swore out a criminal summons against Chief Trevor Hampton, based on an opinion issued October 7 by the state attorney general that his actions could have violated the law.
Chief Hampton released a letter of reprimand, a summary of complaints, and a memorandum about an internal investigation during a news conference he held in March responding to critics and three lawsuits filed by some of his officers. The lawsuits accused Hampton of retaliation and favoritism in his administration. These types of records generally are illegal to make public under the state’s Personnel Privacy Act, James J. Coman, senior deputy attorney general, wrote to local district attorney Frank Parrish.
The officers’ names were blacked out on the papers, but their identities might still be discernible, he wrote. Coman gave no opinion on whether Hampton was guilty or not, but he wrote that the officers do have enough of a case to take to court.
The Class 3 misdemeanor is among the least serious of all criminal charges, and the maximum punishment is a $500 fine, Parrish said.
If found guilty, Hampton could retain both his position and his certification as a police officer, Harrell said. The court must show that the release of the records was done with malicious intent.
This is the latest in a series of clashes between some police officers and Hampton since he took over as chief two years ago. In the past year, six officers have sued him. A survey conducted by the officers’ attorney early this year found that morale was extremely low. The local Fraternal Order of Police has supported Hampton’s ouster.
But a recent investigation of the department funded by the city and conducted by a Charlotte law firm found that most of the turmoil stems from mismanagement among mid-level officers and not the chief. Hampton has maintained that he has tried to instill more discipline and enforce department rules more vigorously than previous chiefs and that has angered some officers.
Hampton is the city’s fourth police chief in ten years. The department employs about 65 officers.
The most recent labor contract between the City of Chicago and its police officers provides for a bonus to officers to stay physically fit. Apparently, many officers figure that the pain of getting into shape is not worth the gain of $250. In the first month of the program, only 2,600 officers out of a force of 13,600 have submitted to the voluntary fitness testing.
“The longest journey begins with the first step,” said Chicago Police Department spokesman Pat Camden, commenting on officer reluctance to initiate a fitness effort.
To receive the $250, officers must run a mile and one-half, bench press most of their body weight, do a specified number of sit-ups, and demonstrate body flexibility. Performance standards are based on sex and age. The running requirement, a 16:21 limit for males over 50, so far has proven to be the biggest hurdle. About 200 officers have failed the various test components.
The city had hoped that the bonus would save money in the long run by reducing healthcare costs for cardiovascular-related diseases and diabetes.
Kinzer and Pike were employed as dispatchers in the sheriff’s office. In that position, they were privy to confidential information about ongoing investigations. Pike subsequently married the sheriff. Later, the sheriff resigned his position to take a job with the state parole board and an interim sheriff was appointed. When the interim sheriff announced his intention to seek the nomination for a full term in the next election, the former sheriff’s son also decided to pursue the nomination. Pike and Kinzer supported the former sheriff’s son. The interim sheriff, however, won the party nomination. At that time, the former sheriff resigned his position with the parole board and came back to run as an independent against the incumbent sheriff in the general election. Pike and Kinzer openly supported the former sheriff’s effort to regain his position. The incumbent sheriff, however, prevailed in the election.
During the month following his election, the incumbent sheriff notified Pike and Kinzer that they would not be reappointed when their terms expired at the end of the year. When the two dispatchers were not reappointed, they filed suit against the sheriff claiming they had been dismissed in violation of their First Amendment rights. Sheriff sought to have the matter dismissed on grounds of qualified immunity, but the trial court rejected his argument. Sheriff appeals.
HELD: A public official is liable for violating the constitutional rights of an employee only if that right was clearly established at the time the official took the action. Otherwise, the public official enjoys the defense of qualified immunity. This case presents the question of whether the law regarding retaliatory employment decisions was clearly established such that the sheriff should have known that refusing to reappoint the dispatchers would violate their constitutional rights.
In determining whether a retaliatory employment decision violates the First Amendment, the court balances the interest of the employee, as a citizen, in commenting upon matters of public concern and the interest of the state, as employer, in promoting the efficiency of the public service. Prior case law holds that only infrequently will it be clearly established that a public employee’s speech on a matter of public concern is constitutionally protected because the relevant inquiry requires a particularized balancing that is subtle, and difficult to apply, and not yet well defined.
Given this “difficult to apply” balancing test, the court cannot say that the law was so clearly established that the sheriff should have known, without having to engage in guesswork, that the dispatcher’s interest in commenting on an issue of public concern outweighed the sheriff’s interest in maintaining a loyal and efficient sheriff’s department. Because the law in this area was not clearly established at the time of the dispatchers were not reappointed, the sheriff is entitled to qualified immunity. Reversed for sheriff dismissing complaint. [Pike v. Osborne, 301 F.3d 182 (4th Cir. 2002)]
Hitt was employed as a deputy constable by Connell. Hitt subsequently became active in the police officers’ union. In 1995, Connell ordered his deputies to start reporting into the office fifteen minutes before their scheduled shifts. They were advised that they would not be paid for this time. Hitt, who was serving as secretary of the local union, wrote the state organization for advice about getting paid for these extra fifteen minutes. Connell learned of his letter and called a general meeting of the deputies. Connell reiterated the deputies would not be paid for the fifteen minutes and suggested that deputies who continued to complain to a union were in danger of losing their jobs. Subsequently, Connell also had conversation with deputies other than Hitt in which he characterized Hitt as a troublemaker and that there would be problems if the deputies did not quit the union.
In early 1997, Connell fired Hitt. The firing was based on an alleged bomb threat that Hitt had made in a conversation with his immediate supervisor. A subsequent investigation revealed that the alleged bomb threat was not an actual threat but probably more of a figure of speech concerning workplace hostilities. Following his termination, Hitt appealed his dismissal to the county civil service commission. The civil service commission voted to uphold the constable’s decision. Hitt then filed suit asserting a violation of his freedom of speech and freedom of association. A jury found that Hitt had been terminated in violation of his First Amendment rights and awarded him $76,000 in lost earnings and another $224,000 in compensatory damages for mental anguish. Constable appeals.
HELD: The right of a public employee to associate with a union is protected by the First Amendment. This right of association encompasses the right of employees to join unions and the right of their unions to engage in advocacy and to petition government on their behalf. Thus, the First Amendment is violated by state action whose purpose is either to intimidate public employees from joining a union or from taking an active part in its affairs, or to retaliate against those who do.
To prevail on a First Amendment claim, Hitt must show he suffered an adverse
employment action, his interest in associating outweighed the constable’s
interest in efficiency, and his protected activity was a motivating factor
in the adverse employment action. Connell’s primary defense focuses
on the third element. He contends that Hitt’s participation in union
activity was not a motivating factor in the discharge because the county
civil service commission actually made the termination decision or, alternatively,
Hitt was fired because of the bomb threat. The jury, however, as the
ultimate finder of fact, concluded that Connell had made the decision to
fire Hitt and did so in retaliation for the union activity. This determination
will be overturned by a court only if there is no legally sufficient evidentiary
basis for the finding.
Connell attempts to avoid liability by claiming that the civil service
commission rather than the constable is the final decision-maker with respect
to employment decisions. It is beyond dispute that the commissioners
indeed conducted an independent inquiry into Hitt’s discharge and they were
not motivated by any improper motives. However, where such commissions
merely serve as a rubber stamp to the recommendation of a subordinate, the
subordinate is the actual decision-maker that exposes possible liability.
Under Texas law, no statute imposes upon a civil service commission a superintending
responsibility over individual employment decisions. Rather, the relevant
statutes provide that the commission shall adopt rules regarding selection,
promotion, seniority, tenure, layoffs, dismissals, and disciplinary actions.
While it is conceivable that the commission could create a rule that no employment
decision became final until approved by the commission, no such rule is
present in this case. Under Texas statute, the commission is authorized
to review and approve, reverse or modify an adverse employment action if
the employee elects to appeal. But the mere authority to review a decision
is not decisive. Had Hitt chosen not to appeal, the termination
would have been final. Thus, the commission does not finalize the constable’s
recommendation, but rather, reviews it. The decision-maker for termination
in this case was the constable.
The constable counters that he could lawfully terminate Hitt’s employment notwithstanding the union activity because of the bomb threat. The constable fails to apprehend the significance of the jury finding, however, that he fired Hitt because of union activity. The jury was appropriately instructed and it concluded that it was union activity that was the basis for the termination.
There was error, however, in the award of monetary damages. The $76,000 in back pay was properly awarded, but not the $224,000 in compensatory damages for mentalanguish. The court has previously held that hurt feelings, anger, and frustration are a part of life and are not the types of emotional harm that support an award of monetary damages. Rather, a plaintiff must establish specific evidence of emotional damage from medical or psychological testimony and the testimony of family and friends. No such testimony was given in this case. Thus lacking evidence of physical manifestation of the stress, the compensatory damages must be reversed. Affirmed for dismissed deputy with instructions to enter a judgment for $76,000. [Hitt v. Connell, 301 F.3d 240 (5th Cir. 2002)]
Felt, a police officer, was subject to a variety of disciplinary actions by the town. Felt sued the town alleging that the disciplinary actions actually occurred because he participated in a series of raids where police suspected that video poker machines were being used for gambling. As part of the lawsuit, Ambrose, a sergeant on the police department, filed an affidavit supporting Felt’s assertions regarding illegal gambling. Ambrose’s affidavit also accused senior officials in the township of ignoring the gambling problem.
A month after the filing of the affidavit in Felt’s lawsuit, a detective was advised by one of the dispatchers that Ambrose was seen going into the administrative section of the municipal building. This entry occurred after normal business hours but during Ambrose’s normal working shift. The administrative office housed information concerning collective bargaining as well as other legal documentation. The detective passed this information on to the chief of police who subsequently investigated the matter. The chief reviewed videotapes from surveillance cameras that showed Ambrose entering the administrative space. Further investigation revealed that Ambrose’s activity log indicated that he was performing duties outside the municipal building when he was actually in the administrative offices. Charges were brought against Ambrose concerning his entry into the closed administrative offices and the alleged misleading activity log.
Ambrose admitted that he had entered the offices, but said he did so to use the copy machine because the department’s machine made poor copies. He denied that he had copied documents in the administrative office. The chief recommended and the township board of commissioners approved Ambrose being suspended. He received 30 days without pay. Ambrose countered by filing a lawsuit claiming a violation of his civil rights as well as a violation of the Pennsylvania whistleblower law. In the suit, Ambrose claimed he was suspended because he had provided the affidavit in support of Felt’s lawsuit. A jury awarded monetary damages to Ambrose. The township appeals.
HELD: Ambrose must meet a three step test in order to establish that he was suspended in retaliation for exercising his First Amendment rights. First, he must show that his conduct was constitutionally protected. Second, he must show the protected activity was the motivating factor in the alleged retaliatory action. And, finally, the employer may defeat the claim by showing it would have taken the same action even in the absence of the protected conduct.
The township argues Ambrose never met his initial burden showing that the affidavit was a substantial or motivating factor in the decision to suspend him because he did not produce any evidence that any of the township commissioners knew about the affidavit before they voted to suspend him. If the commissioners were unaware of the affidavit, it could not possibly have been a substantial factor in the decision to suspend him and his First Amendment claim would fail. Such would be the case here. The evidence indicates that the board of commissioners was totally unaware of Ambrose’s affidavit alleging misconduct in the gambling raids. Without that knowledge, the commissioners would not have been acting contrary to Ambrose’s rights. Ambrose argues, however, that the commissioners perceived that Ambrose was supporting Felt, which would serve as a basis for a First Amendment retaliation claim.
That theory does not work in this case, however, because the only conduct that possibly would be constitutionally protected was Ambrose providing documents to Felt that he copied, conduct which Ambrose specifically denies engaging in. Further, trial court properly instructed the jury that unauthorized entry into closed administrative offices for the purposes of copying records is not activity that is protected by the First Amendment. Since there is no First Amendment protected speech, there can be no violation of the Constitution. Reversed for township. [Ambrose v. Township of Robinson, Pennsylvania, 303 F.3d 488 (3rd Cir. 2002)]
Kapche applied for a position as a police officer for the City of San Antonio. He passed all tests and background checks, but was ultimately denied a job because he was an insulin dependent diabetic. Kapche filed suit claiming unlawful discrimination under the Americans with Disabilities Act (ADA). Trial court dismissed the action, finding that Kapche was not qualified to be a police officer. On appeal, it was determined that Kapche was not qualified to perform the essential functions of the job of police officer because driving an automobile was one such function. The city argued that Kapche posed a significant risk to the health and safety of others that could not be eliminated by reasonable accommodation. Appeals court ruled that while normally an individual assessment of such a situation was necessary under ADA, at that time, prior case law took the position that insulin dependent drivers were by definition dangerous and a blanket exclusion was possible. However, the case was remanded to determine whether or not such a blanket exclusion was still reasonable given advances in medical technology. On remand, the trial court found no controlling law to this blanket exclusion rule and granted summary judgment for the city. Unsuccessful police applicant appeals again.
HELD: In recent years, the U.S. Supreme Court has had occasion to review several cases involving the process of determining whether or not an individual falls within the mandates of the ADA. Specifically, the court has addressed the question of whether corrective measures must be considered when assessing a disability. In each of these cases, the court has stated that whether a person has a disability under the ADA is an individualized inquiry. Similarly, regulations of the Equal Employment Opportunity Commission state that individualized assessment is required under a “direct threat” inquiry where the claim is made that an individual’s ability to safely perform the essential functions of the job is in question. Consequently, the city’s failure to conduct an individual assessment of Kapche’s ability creates a continuing violation of the ADA. Case is remanded again to the trial court for an individual assessment of Kapche’s present ability to safely perform the essential functions of a San Antonio police officer. Reversed for police applicant. [Kapche v. City of San Antonio, Texas, 304 F.3d 493 (5th Cir. 2002)]
Brochu was a police officer who had attained the rank of lieutenant in the detective division. Shortly before his promotion, he was approached by another lieutenant about the possibility of assisting the FBI with an ongoing investigation into alleged corruption in the department. Brochu agreed to assist in this investigation and he so informed the chief of police. The department was suffering from a series of allegations of misconduct and mismanagement. Matters were to the point that one officer was suing the department for alleged race discrimination and unfair discipline while the police union was actively lining up candidates for city council with the idea of ousting the current city manager and the chief of police.
Following provision of a deposition in the race discrimination lawsuit, Brochu found himself transferred from the detective division to the midnight patrol shift. The transfer, however, resulted in no change in rank or salary. Brochu was also removed from his position as public information officer and lost overtime opportunities.
As time passed, Brochu and other officers became more involved in the political aspects of ousting the city council and the city manager. Part of this activity involved the drawing up of a “business plan” for the election. This business plan involved various ideas of reorganizing the department, the establishment of new goals, and the steps that were to be taken for its implementation when the appropriate members of city council took office. Planning even included a news release announcing the changes and announcing the beginning of an investigation into the allegations of police corruption and mismanagement. The policies of the department were to be replaced and many of the officers were to be required to immediately turn in their badges and to be placed on administrative leave and confined to their residences while an investigation ensued.
Although the plan was initially intended to be kept secret, it was shown to several persons, including the individual who was scheduled to become city manager upon the change in city council majority. He, as well as several other individuals, expressed shock at the plan. After the election, the plan was shared with some of the newly elected council members. The new council members were also astonished at the plan and provided a copy to the chief of police. At that moment, the plan’s existence hit the media and a public furor erupted for the next several months.
In the chief’s view, the plan constituted a violation of department policy because it involved revealing internal department procedures and business to civilians. The chief also became concerned about the effectiveness of the department and even contacted the sheriff to find out if he would be available to provide police services if a major crime occurred because the department was in such turmoil. At the chief’s recommendation, the city manager placed Brochu and the other officer on leave pending the investigation into their actions. Brochu and the other officer, with the union’s help, filed a lawsuit seeking to stop an investigation into the takeover plan. Trial court held a hearing and rejected the lawsuit.
Subsequently, Brochu re-signed by handing the chief a letter where he contended that he was being forced from his job by harassment, threats, and intimidation. Brochu then filed suit claiming a variety of illegal acts on the part of the chief and the city, including deprivation of his First Amendment rights. Trial court ultimately awarded a substantial monetary judgment to Brochu, finding that protected speech activity was a motivating factor in the city’s decision to place him on the administrative leave that ultimately resulted in a constructive discharge. City appeals.
HELD: It is well established that an employer may not discharge a public employee in retaliation for the employee’s exercise of his right to freedom of speech. However, that right is not absolute. The initial test of whether a public employee’s speech is protected by the First Amendment involves determining whether the speech may be fairly characterized as constituting speech on a matter of public concern. If the answer is in the affirmative, then the court must balance the interest of the public employee against the interest of the public employer. Certainly speech and activity concerning corruption and mismanagement of a police department or support of candidates for city council might be a matter of public concern. In this case, however, Brochu was not merely commenting upon matters of public concern (i.e., the alleged ineptitude of superiors or alleged corruption in the police department), nor was he merely campaigning in favor of reform candidates. Rather, Brochu was a major player in the creation and dissemination of a virtually secret plan to overthrow the police administration and put himself and his friends in charge. This was not the sort of public speech engaged in by an employee as a citizen which is protected by the First Amendment. This was backroom maneuvering by an employee as an employee, which, even if tangentially related to the political process and even if motivated by sincere desire to reform the police department, is not the sort of public discourse which the First Amendment was intended to protect.
A police officer is part of a quasi-military organization. In a
law enforcement agency, there is a heightened need for order, loyalty, morale,
and harmony, which affords a police department more latitude in responding
to the speech of its officers than other governmental employers. Even
if Brochu’s plan were protected speech, its potential to cause havoc in
the department tips the balancing test in favor of the city. The case
should never have gone to the jury. The fact that Brochu might have
been legitimately, politically active would not give him license to disrupt
the operation of the police department. He crossed the line when he
went beyond political activity as a citizen and created a secret plan as
an employee to overthrow his superiors and then shared the plan with a few
civilians in the community, actually enlisting their assistance in effectuating
a coup. The actual reason the city placed Brochu on administrative
leave - the plan - was a legitimate reason. He could not have legally
been placed on administrative leave simply for supporting certain candidates
or for publicly criticizing the chief and the department. However,
one cannot permanently insulate oneself from a legitimately motivated adverse
employment action by simply becoming politically active and thereafter artificially
linking all of one’s behavior to that alleged protected political activity.
Brochu overstepped the boundary of constitutional protection when he secretly
created a written plan aimed at overthrowing the administration of the police
department. Reversed for city. [Brochu v. City of Riviera Beach,
Florida, 304 F.3d 1144 (11th Cir. 2002)]
California statute contains a Public Safety Officers’ Procedural Bill
of Rights (PSOPBR). One portion of that law provides that a comment
adverse to public safety officers shall not be entered in the officer’s personnel
file or any other file used for any personnel purpose without the officer
having first read the comment. The officer then has 30 days in which
to file a written response to any adverse comment.
Kime was a member of the department bomb squad. As the supervising
sergeant, he was entitled to certain benefits, including a take-home vehicle.
In late 1995, his take home vehicle was stolen. Hours later it was
recovered but his supervisor charged Kime with neglect of duty. An
internal affairs investigation was launched on the matter, but ultimately,
no adverse action was taken against Kime. Kime and the police officers’
union filed suit seeking a writ of mandate to provide him access to and the
opportunity to review any documents that the department might have in any
file relative to the allegation of neglect of duty.
In responding to the suit, the department responded that there were no records in Kime’s personnel files concerning the stolen car incident. The department conceded, however, that internal affairs might have records relating to the alleged misconduct but that those records were not considered to be “personnel records.” Indeed, the only departmental record was an internal affairs division index card containing Kime’s name and reflecting that an investigation had been conducted about the theft of his city-owned vehicle and that no adverse action had been taken against him. Trial court denied the officer’s effort to see the index card, reasoning that since no adverse action was taken against him the card was not the type of record subject to review under state law. Officer appeals.
HELD: State statute known as the PSOPBR allows an officer to review “his personnel file, or any other file used for personnel purposes by his employer.” The officer is also afforded thirty days in which to file a written response. The case at hand concerns whether the index card is the type of “file” that the statute envisions would be subject to inspection by the officer. Prior California case law concludes that the PSOPBR should be construed broadly to include any document that “may serve as a basis for effecting the status of a peace officer’s employment.” Consistent with this decision, the court must give appropriate consideration to the fact the legislature utilized broad language in enacting the protective statute. The events that trigger officers’ rights under those statutes are not limited to formal disciplinary actions, such as the issuance of letters of admonishment, or specific findings of misconduct. Rather, officers’ rights are triggered by the entry of any adverse comment in a personnel file or any other file used for personnel purposes.
Here, even though the adverse comment did not directly result in punitive action, it has the potential of creating an adverse impression that could influence future personnel decisions. If Kime were to be the subject of a subsequent internal affairs investigation, the investigating officer would see the entry on the file card. Viewing of this unexplained and unrebutted charge of neglect of duty could color the investigator’s view of Kime and affect the investigation of the new complaint. This is the type of comment adverse to an officer’s interest state law seeks to provide the opportunity for review and rebuttal. Effective law enforcement depends upon the maintenance of stable employer/employee relations between public safety employers and their employees. This is a public policy statement articulated by the legislature. Legislature has chosen to afford protection to an accused peace officer even if the process might on occasion dissuade some people from reporting officer misconduct because they cannot do so confidentially. PSOPBR applies to any adverse comment entered on Kime’s internal affairs index card. The officer is entitled to inspect the card, but he is not entitled to the entirety of the department’s investigative record. Reversed for police officer. [Sacramento Police Officers Association v. Venegas, 124 Cal. Rptr. 666 (Cal. Ct. App. 2002)]
New York statute provides that police officers injured in the performance of their duties are entitled to the full amount of their wages until the disability ceases, as well as payment of all medical expenses. This special worker’s compensation law was more generous than the statute covering most public employees, which created a scheduled compensation and medical expense chart regardless of fault. Legislative history of special law indicated that the special law was enacted because police officers and fire fighters are exposed to substantial hazards in their performance of their duties. Two police officers, Clements and Rice, were injured and sought full salary and benefits during their time off. Clements injured his back when he slipped and fell while removing police tape that had been used to mark flooding on a municipal street while Rice injured his elbow when he fell down the stairs at the police station while walking to the locker room. Trial court denied their petitions and the two officers appealed.
HELD: The legislature’s focus in enacting the special worker’s compensation law for fire fighters and police officers was to provide benefits for injuries arising from the heightened risk in duties to which they were exposed in their special work. These functions are key to the criminal justice process, including investigation. This special benefit is in contrast to the general worker’s compensation law. For example, an officer injured during a police department basketball practice might be eligible for the ordinary benefit but not for special benefits because his injury was not of the heightened risk type that arises from the performance of his duties. Prior case law has made it clear that the special benefits are not available for all injuries incurred by police officers in performance of their duties but are limited to the more narrow category of injuries incurred from the performance of special work related to the nature of the heightened risk duties to which officers are exposed. Here, Clements and Rice failed to demonstrate that their respective injuries were sustained the in performance of special work related to the heightened risk of being a police officer. Trial court properly denied their petition for special benefits. Rejection of claim affirmed. [Clements v. Panzarella, 746 N.Y.Supp.2d 495 (N.Y. App. Div. 2002)]
Harden was employed by state bureau of criminal identification and investigation. He was found guilty of neglect of duty and ordered that his vacation leave balance be reduced by eight hours. Specifically, his employer, the attorney general, stated that if the current leave balance was insufficient, the reduction would take place as vacation was accrued. State personnel board moved to strip Harden of the vested vacation pay as a means of discipline. Harden filed suit to prevent such action, but the trial court rejected his claim. He appeals.
HELD: Under Ohio law, each state employee earns eight hours of vacation
leave with full pay annually. The law further provides that upon separation
from service, the employee is entitled to compensation at his current rate
of pay for all unused accrued vacation leave. Prior case law holds
that once vacation leave is earned, it becomes an entitlement of the employee
in the nature for work already performed. The state statute concerning
suspensions of employees allows for a reduction in pay, but does not authorize
the taking of pay already earned. An examination of the statutes as
well as prior case law leads to the conclusion that Ohio law does not permit
taking away pay, including accrued vacation credits, that has already been
earned. Trial court erred when it authorized such an action.
However, the attorney general’s order allowed the penalty to be assessed
as earned if the accrued vacation balance was insufficient. Here, the
insufficiency is not because Harden does not have accrued vacation pay, but
because the vacation pay is untouchable for pay reduction purposes.
Thus, the intent of the attorney general will be honored by reducing the
accrual of vacation pay as it is earned. [Harden v. Ohio Attorney General,
775 N.E.2d 570 (Ohio Ct. App. 2002)]
The borough and the police union reached impasse in the negotiations. The matter was referred to a panel of arbitrators pursuant to Pennsylvania law. Panel issued an award which included a requirement that the borough provide both long-term and short-term disability benefits to police officers who suffered non-work related injuries. The award further provided that time spent in receipt of such non-work related disability benefits would be considered time worked for the purposes for the police pension plan. Additionally, the borough was to continue to deduct pension contributions during these time periods.
Following the award, the borough petitioned the trial court to vacate or modify this provision of the award arguing that it violated the state police pension law. Trial court denied the borough’s efforts and borough appeals.
HELD: In Pennsylvania, the scope of review of interest arbitration cases is narrow. A court may reverse the arbitrator’s decision only if the arbitrator was outside his jurisdiction, the proceedings were irregular, a decision was in excess of the arbitrator’s powers, or there was a deprivation of constitutional rights. Here, the borough contends that the award violates Pennsylvania law because pension law does not provide for payment of pensions to officers who are disabled by non-work related injuries. Thus, the arbitration panel exceeded its powers by forcing the borough to commit an illegal act. Prior case law upholds the borough’s position on this issue. Not only is the award illegal, but it illegally siphons tax funds to subsidize a pension for individuals not eligible to receive those funds. To adopt the trial court reasoning would allow an individual on his first day of work who is injured while off duty to be eligible for and gain service credit towards a police pension while sitting at home or working another job, the same as that of a police officer. Police pensions are to reward officers who give years of service to the public. It is illegal to make eligible someone who does not give that service to the public or is not injured while serving the public. Because the arbitration panel exceeded its authority, the decision of the trial court is reversed. [Borough of Ellwood City v. Ellwood City Police Dept. Wage and Policy Unit, 805 A.2d 649 (Pa. Commw. Ct. 2002)]
During the Christmas holiday season in 1991, a car struck a van carrying four state troopers and their wives who were on their way home from a party. Several of the troopers and the wives were injured. The subsequent investigation of the accident was handled very poorly and a possible cover-up ensued. The incident proved to be a public relations debacle for the Department of Public Safety (DPS). Subsequently, a second investigation was conducted that resulted in the troopers in the van and some other individuals being indicted because of the cover-up. The indictments were later dismissed. Approximately a year later, when Rose became Director of DPS, he ordered a third investigation of the alleged cover-up. At the close of the investigation, a report was given to Rose. The report recommended that Fleming, a lieutenant who had been contacted by one of the troopers involved in the accident, receive a five-day suspension for failing to carry out his duties. The suspension was ultimately reduced to a written reprimand.
Rose and the DPS issued a press release about the investigation. Many newspaper articles were published around the state based on this release. Part of the press release stated that Fleming did not report key information to his superiors. Fleming considered that statement to be defamatory and filed suit against Rose. Trial court granted summary judgment and dismissed the action, ruling that Fleming was a public official and the publication had been limited to fair comment without actual malice. Intermediate appeals court reversed that holding and DPS director appeals.
HELD: In order to prove defamation, the complaining party must show: (1) a false and defamatory statement was made; (2) the unprivileged statement was published to a third party; (3) the publisher was at fault; and (4) either the statement was actionable irrespective of harm, or the publication of the statement caused special harm. The publication of a statement is defamatory if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.
Fleming was a lieutenant serving in the highway patrol. As such, he was a public figure for the purposes of defamation law. When a public figure seeks to recover damages for a defamatory falsehood relating to his official misconduct, the fault he must prove is that the statement was made with actual malice. Actual malice means the publisher of the statement had knowledge the statement was false or acted with reckless disregard as to whether it was false. The public figure must demonstrate actual malice with clear and convincing proof. To succeed in this suit, Fleming would have to prove that Rose had a high degree of awareness of the possible falsity of the statement in the press release. The facts relied on in the lower court do not amount to this clear and convincing proof. The evidence shows that Rose relied on the results of an investigation conducted by two highly respected investigators. Rose testified that he had no reason to doubt that the investigation was not thorough, solid, correct, and truthful. There is no evidence in the record, much less clear and convincing evidence, that Rose had knowledge that the statements set forth in the findings of the investigation with regard to Fleming were false. Actual malice cannot be shown from Rose’s failure to perform his own investigation because there was no obvious reason to doubt the veracity of the formal investigation. Because Fleming cannot show by clear and convincing evidence that Rose acted with actual malice, Rose is entitled to dismissal of the suit. [Fleming v. Rose, 567 S.E.2d 857 (S.C. 2002)]
Perez was a 19-year veteran police officer. For eighteen months, he held the rank of lieutenant at which time he was selected to serve as an assistant chief. Under the collective bargaining agreement with the police union, the police chief was permitted to appoint assistant chiefs. Perez served as an assistant chief for nearly three years, whereupon he returned to the rank of lieutenant. After another eighteen months passed, he took the promotional examination for the position of captain. He finished first on the list. Following publication of the results, however, the individual who was second on the list challenged Perez’ eligibility to take the exam and qualify for promotion. He alleged that Perez was not eligible because he had not served as a lieutenant for two continuous years and for two years total before the date of the promotional exam as required by state law. Civil service commission upheld this contention and ordered Perez’ name removed from the promotion list. On appeal, trial court upheld the commission ruling and Perez appeals.
HELD: Under Texas civil service law, an individual must have two years seniority in the previous rank in order to be eligible to take the promotional exam for the next rank. Perez argues that his rank as assistant chief was a temporary assignment and, therefore, he continued to hold the civil service rank of lieutenant while serving as assistant chief. Thus, those years of service as assistant chief should count toward the two years of eligibility requirement. The purpose of the civil service act is to secure efficient police departments composed of capable personnel who are free from political influence and who have permanent employment tenure in the public service. To accomplish that goal, the law sets forth a fairly precise system for promotion.
The collective bargaining agreement in Laredo, however, alters the statute somewhat in allowing the chief to select assistant chiefs. The agreement also defines seniority as the length of continuous service in the employment of the police department. Because the officer’s length of continuous service as assistant chief is not lost for seniority purposes when the officer is reinstated at a lower rank, those years of service also should not be lost for determining when he is eligible for promotion. To rule otherwise would cause the years Perez served as assistant chief to essentially be lost. Those years must count as years served in the position he held immediately before his appointment to assistant chief, that of lieutenant. Therefore, Perez met the two year eligibility requirement. Any other interpretation would be contrary to the intent of the civil service law. Reversed for officer. [Perez v. City of Laredo, 82 S.W.3d 605 (Tex. App. 2002)]
Since the 1930’s, the State of Washington has required municipalities to provide civil service rights for employees of police departments. A large number of Washington cities simply adopt procedures and policies contained in the state law. Other cities take a more selective approach. These cities enact certain provisions unique to them. Other cities, including Seattle, have enacted entire civil service systems pursuant to the state statute which says that the law is inapplicable to cities which provide for civil service by local charter which substantially accomplishes the purpose of the state law.
In 1978, Seattle instituted a civil service system for its police officers. Under the system, the chief of police may choose to promote either one of the top candidates on the list or one of the candidates on the top 25 percent of the eligibility list, whichever is greater. The chief does not have to promote candidates in the order in which they appear, but rather has discretion to promote any candidate within the 5/25 rule. Hossfeld ranked 28th on the sergeant’s exam. Twenty-six individuals were promoted, but not Hossfeld. He and the police union filed suit alleging that Hossfeld and several other officers had been improperly passed over for promotion. Trial court granted summary judgment for the city claiming that the promotions were made consistent with the city ordinance. Officers appeal.
HELD: Prior case law holds that the purpose of the state law was to establish a civil service system to provide for promotion on the basis of merit. In earlier cases, the union argued that in order for merit promotions to exist, a strict rank order procedure with no discretion on the part of the chief must be followed. The court rejected that argument taking the view that the state legislature did not intend to eliminate all discretion. The court cited as an example the probationary period of appointment that obviously grants discretion to the chief to remove an inappropriate selection. The court, in the prior case, did uphold a rule of three ordinance concluding that it substantially accomplished the purpose of the state civil service law. That court further found that the rule of three was commonly used in various cities as a recognized means set to operate a civil service system.
The rule of five in Seattle’s case is substantially similar to the rule of three previously upheld. Thus, a rule of five is valid in accomplishing the purposes of the state mandate; however, a rule which allows selection within the top 25 percent exceeds the purposes of the civil service law. No other Washington city uses a rule of percent such as this. The 25 percent rule does not serve the purposes of the state civil service statute and is invalid. Since the rule of five is valid, each officer would have been joined by at least four others on the list for promotion. The chief could have always selected one of the other candidates from the list. Therefore, the officers who bring this challenge have not shown that they were caused any harm and have no claim in damages. [Seattle Police Officers Guild v. City of Seattle, 53 P.3d 1036 (Wash. Ct. App. 2002)]
deputy sheriffs
A new pay raise places Harris County deputy sheriffs in a base salary plan comparable to the Houston Police Department. Most rank-and-file deputies will see paychecks jump 7.2 percent, with higher ranking personnel seeing even larger increases. Deputies will now earn a base wage between about $31,500 and $43,600. Representatives of the Harris County Deputies Organization, Local 154 IUPA, AFL-CIO, praised the wage boost but announced efforts to also gain an increase in supplemental pay and benefits similar to the city police.
police officers
Most Kansas City officers will gain an extra two percent in pay after the city administration decided to make adjustments to the wage schedule. Additionally, the number of steps in the police officer pay schedule were compressed. Base pay for officers now ranges from $36,960 to $54,924. Sergeants will draw between $58,728 and $64,572.
deputy sheriffs
The Niagara County Police Benevolent Association has ratified a new four-year contract with the county. The pact covers 120 patrol deputies and investigators. Under the agreement, which is retroactive to January 1, deputies take a wage pass the first year. Over the remaining years, wages and benefits will rise 8.7 percent. To help fund the pact, higher health insurance deductibles and prescription co-payments were agreed to.
police officers
The Rochester Police Locust Club has reached accord with the city on a new labor pact. The parties agreed to extend their expired contract through June 30, 2004. The previous contract ran out on June 30, 2001. In exchange for the agreement, officers will receive a three percent wage hike in each year of the contract. Starting pay now becomes about $29,000, while veterans will push $60,000.