New Mexico Governor Bill Richardson on March 7 signed collective bargaining legislation into law that restores public employees’ rights to negotiate agreements with management. Public employees lost those rights in 1999 when the previous administration vetoed legislation that would have extended collective bargaining rights. The prior law had lapsed due to a sunset clause. State and local governments will now be required to bargain with all public employees.
“Today is a great victory for our public workers across New Mexico. Many of you were denied your rights under the previous administration. I have long believed that all workers have earned the right to negotiate. During my entire 15 years in Congress, I was always a proud supporter of collective bargaining. Under my administration, and from now on in New Mexico, you have a seat at the table,” Governor Richardson told attendees at the signing ceremony. “But at the same time, I want to raise the bar for what we expect from public employees. In return for reinstating collective bargaining, I expect our state employees to offer their best efforts in improving service to our state.”
The new law, which overwhelmingly passed both houses of the legislature, lacks the sunset provision and will make it difficult in the future to eliminate collective bargaining rights.
Ironically, the legislation, which takes effect July 1, comes at a time when police officers in the state’s largest city have become frustrated over low wages. Dozens of Albuquerque police officers, angry about what they see as poor pay, dangerous staffing levels, and rock-bottom morale, are beginning to mull a strike, or the “blue flu,” the police union warned.
Word of the possible job action came about two weeks after Mayor Martin Chavez attended a citywide Albuquerque Police Department (APD) briefing and told officers not to expect raises from the money-strapped city this year. According to the Albuquerque Journal newspaper, Albuquerque Police Officers’ Association (APOA) president Jeff Remington said he has spoken with about 100 officers who have mentioned a strike or a bout of the “blue flu.” “I don’t think it’s good for Albuquerque and it’s not good for Albuquerque police officers. But it is a possibility. The officers are at the point where they don’t know what else to do,” Remington said. “I’ve been with the APD for almost nine years. I have never seen it this bad. The guys are to the breaking point.” Remington accused the mayor of not fully backing up his campaign promises to make public safety a priority.
The city is about 60 officers short of its authorized strength of 955 officers. Its last pay raise, a phased-in six percent boost, came in 2001. APD officers earn roughly $34,650 to $43,800 a year. Currently, APOA bargaining rights are governed by a city ordinance that prohibits strikes under penalty of decertification and monetary fine.
An APD supervisor confirmed to the newspaper that officers have been discussing possible job actions at their briefing times. Another officer added that with APD’s current staffing levels, it would not take too many patrol officers calling in sick to make a big impact.
APD officers last walked off the job in 1974. The new state bargaining
statute outlaws strikes.
CPI
Consumer Price Index issued monthly by the Bureau of Labor Statistics. The CPI program produces monthly data on changes in the prices paid by urban consumers for a representative basket of goods and services. It is commonly used as a measure of the cost of living (inflation).
Management practices that may impact officer safety are traditionally viewed as part of “working conditions” that are subject to bargaining. But how can police administrators balance officer safety with the need for confidentiality in high profile cases? This topic came to a head in recent negotiations between Lodge 35 of the Fraternal Order of Police (FOP) and Montgomery County, Maryland. Montgomery County Police Department (MCPD) was the lead investigative agency in last year’s Beltway sniper case. During recent contract negotiations, the FOP accused Police Chief Charles Moose of knowing the descriptions of the Beltway snipers at least one day before releasing the information to his own patrol units. FOP officials said the delay not only jeopardized the lives of citizens, but also the safety of police officers.
FOP officials in their latest contract negotiations insisted that Moose’s
office give “prompt notification of all vehicles, suspects, and conditions
of which it becomes aware and that could reasonably affect officer safety.”
This demand was later modified to require notification to officers “of all
vehicles, suspects and conditions, of which it becomes aware that may jeopardize
officer safety.” The union finally agreed to less-specific language
proposed by management in the final contract, which still obligates the department
to ensure “‘the timely release of appropriate information to preserve officer
safety.”
According to WorldNetDaily, an online news source, Walter Bader, President
of Lodge 35, testified in February during contract talks that the issue of
Chief Moose allegedly withholding information from street officers “became
a concern during the sniper incident.” Noting that suspected Beltway
snipers John Allen Muhammed and Lee Boyd Malvo were armed and extremely dangerous
and posed a “greater than normal threat of death” to officers, Bader complained
that Moose should have put out information on the suspects, including their
names, race and vehicle description, in multiple radio broadcasts as soon
as he learned the information.
Additionally, a lawyer for the FOP suggested the chief, who has been widely praised for his handling of the case, delayed releasing the information by at least one day.
Moose responded to the FOP charges in a bulletin posted on the MCPD website. He said he learned of no “confirmed suspects” by the close of the day on October 22. Additionally, he noted that radio transmissions regarding the case were restricted due to monitoring by the media. The first posting of in Mohammed and Malvo were finally arrested early in the morning on October 24 after allegedly shooting 13 people in the capital area over three weeks.
Meanwhile, contract negotiations went to final offer arbitration. The arbitrator found for the county and awarded officers a two percent pay hike. Chief Moose reportedly has received an 8.68 percent hike in pay, bringing his salary to $160,000.
In a memo to his members, Bader declined to blame Moose for preventing the officers from obtaining a better pay raise, but noted, “I was critical that police management so vigorously opposed us in a winner-takes-all process, particularly as it relates to officer safety.”
Generous educational incentive pay for police officers has contributed to 21 Boston officers earning more than $150,000 in 2002. Another 584 drew more than $100,000 records show. A study by the Boston Herald newspaper found that the city paid out approximately $17 million last year, even as overtime and paid detail work declined. The unusual compensation is the result of the so-called Quinn Bill, a state law that mandates bonus pay for advanced college degrees. The state and municipalities split the tab for the educational bonuses.
In tough financial times, Governor Mitt Romney has come under criticism for ignoring the Quinn Bill payments in his efforts to balance the state budget. The law, officially labeled the Police Career Incentive Pay Program, reportedly costs taxpayers about $100 million per year. Officers holding an associates degree draw an extra 10 percent in pay while bachelor degree recipients garner an extra 20 percent. A master’s degree provides a 25 percent pay increase. The payments also factor into overtime and pension contributions.
Critics complain about the quality of some of the diplomas, particularly from institutions that grant officers credit for life experience in lieu of academic course work. Under a state Board of Higher Education ruling effective in May, officers hired in the future will no longer receive credit for life experience.
The Governor has defended the Quinn Bill as worth the money in producing a better educated police force.
Critics of the Governor also object to a statute that requires an off-duty police officer be present at the scene of any road construction work. This law, apparently unique to Massachusetts, purportedly adds more than $100 million a year to police wages. One Boston patrol officer accumulated $77,741 in detail pay.
In 2002, the top wage earner was a lieutenant who drew $170,179, including $11,284 in educational bonus pay. The remainder came from overtime and paid secondary employment known as “details.” Police Commissioner Paul Evans was paid $161,652, ranking eighth among Boston police personnel.
Terror alerts are resurrecting an old police grooming issue: the wearing of beards. In an order issued in February, Detroit police officers have been told they must have smooth skin during orange and red terrorism threat conditions, so that gas masks will seal tightly.
“Correct fit of a mask requires contact with smooth skin,” said the department memo transmitting the order. “Even a one-day growth of a beard allows 1-percent penetration of a gas mask.”
But, the order did not sit well with the Detroit Police Officers Association, which threatened to go to court to block it. After the union complained, department officials said existing shaving deferments would remain in effect. About 200 of the department’s 4,200 officers have medical clearance to grow beards due to various skin conditions, union vice president Derrick Royal said. Many of the officers suffer from pseudofolliculitis barbae, a skin condition common in black men that makes shaving painful.
Department officials said officers being fitted for gas masks and trained in their use will have to shave. If that happens, Royal said, the union would go to court.
“I don’t know why we have to go through all of this,” Deputy Chief Ronald Haddad said. “The reality is that this is what needs to be done for the mask to seal.”
Mustaches still are permitted under the order.
Seeking review from the high court is Oklahoma County, Oklahoma v. Sherwood,
No. 02-1058, wherein a deputy sheriff was ordered to supervise jail inmates
in painting a fleet of sheriff's department vehicles. The deputy was allegedly
threatened with dismissal if he did not perform the work, even though county
officials had notice that the spray booth was not in compliance with safety
regulations. Deputy later experienced medical problems and became incapable
of working. Appellate court ruled that the governmental employee in this
case could use 42 U.S. Code §1983 as a basis for an on-the-job injury
claim. Employer is seeking review of that determination.
Responding to complaints of lewd acts taking place in a park restroom, Rodriguez and another Beverly Hills police officer initiated an undercover investigation. Rodriguez entered the park’s restroom after observing an individual also enter. As he exited one of the stalls, Rodriguez saw the individual fully exposed and engaging in a lewd act. Rodriguez left the restroom and he and his partner subsequently arrested the individual for disorderly conduct as he exited the restroom. The individual was subsequently identified as Panayiotou, a well-known rock singer who performs under the name George Michael. Michael subsequently pled no contest to the charge and was fined and placed on probation.
Subsequently, Michael released a new song and music video that made vague references to the incident. Additionally, he granted a series of magazine and television interviews to promote the album. During these interviews, he alleged that Rodriguez had entrapped him and claimed that Rodriquez had induced him to engage in the lewd act by first exposing himself to Michael. Rodriquez subsequently filed suit claiming he was defamed by Michael’s comment as Michael had accused him of committing a crime and participating in conduct that would disqualify him from serving as a police officer.
Trial court dismissed the suit on the grounds that Michael’s statements were non-defamatory expressions of opinion. Police officer appeals.
HELD: Under California statute, slander per se is defined as a false and unprivileged publication, orally uttered, which fits into one of four categories listed in the statute. Rodriquez contends that Michael’s statements were slanderous under two of the categories: (1) by charging Rodriquez with committing a crime, and (2) by tending to directly injure him with respect to his profession as a police officer.
Michael counters the claim saying that he did not charge Rodriguez with a crime because the officer was acting in an undercover capacity and would presumably have been immune from criminal prosecution. However, a review of prior case law finds no support for this presumption. While it may be true that police involvement in otherwise illegal acts is often permitted for the purpose of investigating possible violations, there is simply no blanket immunity doctrine that covers all types of illegal activity performed by officers. Thus, it is doubtful that the police conduct alleged - the exposure of the officer’s genitals - is an accepted practice of the police department in the conduct of undercover operations. Consequently, there can be presumed no immunity from prosecution were such indeed the case.
Trial court, relying on prior case law, found that Michael’s comments were non-defamatory expressions of opinion protected by the First Amendment and, thus, no slander suit could be pursued. The court, however, misread prior law. The California Supreme Court never intended to create a wholesale defamation exemption for anything that might be labeled as an opinion. Rather, if a speaker states facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or his assessment of them is erroneous, the statement may still imply a false assertion of fact. Such a false factual assertion can form the basis for a defamation claim. The issue of whether an alleged defamatory statement would constitute a fact or opinion is a question of law for the court to decide. If the court concludes the statement could reasonably be construed as either fact or opinion, a jury should resolve the issue. In determining whether an alleged defamatory statement implies a factual assertion, the court must examine the totality of the circumstances in which the statement was made.
Here, Michael’s comments to the media implied the belief that Rodriguez had entrapped him. This constituted Michael’s interpretation of the law. Prior case law holds that absent a clear, unambiguous ruling from the court, statements by laypersons that purport to interpret the meaning of a statute are opinions and not facts. Thus Michael’s lay allegation of entrapment cannot constitute defamation under California law. Michael also asserted that Rodriguez performed a lewd act in public. This statement asserted a precise factual accusation and charged Rodriguez with a specific and objectively verifiable act. This statement is susceptible as being proven true or false and, therefore, can give rise to an illegal action for slander.
Additionally, Michael cannot avoid liability on the so-called litigation privilege. This rule states that statements made in the furtherance of judicial proceedings are absolutely privileged. Michael argues that the statements were made during his two-year probation period and, thus, were part of a judicial proceeding. Despite the prior broad application of this privilege, the trial court properly held that the privilege did not apply to post-litigation comments by the singer. Case is reversed and remanded for determination of the factual truth of Michael’s allegation regarding the officer’s alleged unlawful conduct. [Rodriguez v. Panayiotou, 314 F.3d 979 (9th Cir. 2002)]
After six years on the police force, Dirrane was transferred to the identification unit of the detective division. According to Dirrane, as the workload increased, the other officers in the unit engaged in a continuing array of abuses. Dirrane repeatedly complained to the division captain about a range of issues from minor to quite serious. He claimed that certain officers were playing cards on work time and that supervisors had improperly waived firearm-licensing requirements. He also made a serious allegation charging a supervisor with falsifying fingerprint reports and destroying evidence. The captain promised to look into the matters, but very little happened.
In 1997, the captain changed Dirrane’s work hours from 6:00 a.m. to 2:00 p.m. to a more normal 8:00 a.m. to 4:00 p.m. schedule. Dirrane, however, claimed that this conflicted with his wife’s schedule and their need for care of their child. Under some stress, Dirrane asked to transfer to the patrol division.
Shortly thereafter, internal affairs officers removed Dirrane’s office keys and firearm. Because of the stress, however, he was given ten days leave before reporting to the patrol unit. Over the next several months, Dirrane received some psychological counseling and his firearm was ultimately returned to him. Dirrane continued to earn his police officers salary, but subsequently claimed to suffer severe permanent emotional trauma as a result of his overall experience.
Two years after his transfer, Dirrane filed suit against various superior officers and the town alleging a violation of his First Amendment rights and the Massachusetts Whistleblower Statute. The trial court ruled that the individual officers had qualified immunity as to the First Amendment claim and that the town lacked liability due to the absence of any policy or custom of unconstitutional behavior. The state whistleblower claim was also dropped because the court found that written notice, which Dirrane never provided, was required under the statute. Officer appeals.
HELD: The Supreme Court has held that alleged disruptive speech by a whistleblower is entitled to protection against retaliation if his speech interests, along with the public’s interest in hearing the speech, outweigh the government’s need to limit distractions and maintain morale in the workplace. This uncertain standard can implicate the companion legal doctrine of qualified immunity. Under qualified immunity, a government employee is immune to damages where a reasonable official could believe, all be it mistakenly, that his conduct did not violate the First Amendment.
In this case, factors in Dirrane’s favor are fairly easy to state. Some of the conduct he charged is serious, such as destroying fingerprint evidence and falsifying reports, and allegedly continued over several years. He asserted that his supervisor listened to him, but made no serious efforts to investigate the allegations. Dirrane’s allegations have the structure of a classic cover-up in which the whistleblower suffered an adverse change in employment because of his speech on a public issue.
However, when viewed from the department’s side, the matter is less clear. The department had some basis for distrusting Dirrane. He made one complaint after another on a wide range of topics ranging from the trivial to the serious. His superiors could easily have concluded, even if mistakenly so, that they were dealing with someone who would say anything to get attention and who would make up more serious allegations when less serious allegations failed to draw attention. Further, no action was taken against Dirrane for simply making complaints. It was not until some five years after the complaining began that the department took action to transfer him. By this time, Dirrane’s accusations had caused serious disruption in his three-person unit. Even then, he was not demoted or fired, but merely transferred to another unit. Had an investigation determined the allegations were unfounded, the disruption they generated would have amply justified the modest impact on Dirrane’s transfer. But to transfer him without any serious investigation cannot be defended under the Supreme Court’s balancing-of-interests test. However, his supervisors have qualified immunity on the claim. This is not a classic example of where an employee blows the whistle and is subsequently fired. The department did not try to fire Dirrane but simply moved him to a position that even he described as his second choice. This is not a case in which a reasonable supervisor would have known that he was acting unconstitutionally.
As to the state whistleblower claim, the statute clearly requires written notice prior to filing suit, something Dirrane failed to do. Certainly, a written notice to the city would likely have produced no different result, nor is there any indication that prior written notice of the suit would have resulted in the department undoing the transfer. Nonetheless, the Massachusetts statute is precise on this requirement and the requirement does serve a rational purpose of avoiding uncertainties for the employer. State whistleblower claim is barred. Trial court judgment affirmed finding qualified immunity on the part of supervisors and statutory bar to state law claim. [Dirrane v. Brookline, Massachusetts, Police Department, 315 F.3d 65 (1st Cir. 2002)]
A weekly newspaper entitled St. Mary’s Today had reported extensively, and often critically, on local government and public officials, including the county sheriff Voorhaar and his deputies. Through a series of articles, the newspaper had been especially critical of the deputies’ performance as well as that of a friend of the sheriff, Fritz, who was a candidate for the local prosecutor’s office and enjoyed broad support in the sheriff’s department. Several deputies anticipated that the Election Day issue of St. Mary’s Today would be critical of them and their favorite candidate’s, particularly Voorhaar and Fritz.
Over the course of a series of meetings, both on the job and in private homes, several deputies formulated a plan to deal with this problem. They formed two teams for Election Day. The two teams would go out and purchase all copies of St. Mary’s Today at vending locations throughout the county. They viewed the seizure as a good opportunity to “piss off” the publisher and to protest their disagreement with this alleged “irresponsible journalism.” They planned to conduct a bonfire party when the seizure was complete.
Indeed, on Election Day, the newspaper’s front page reported that the
prosecutor candidate, Fritz, and three other men had pled guilty to carnal
knowledge of a 15-year-old girl some years earlier. The same edition
reported about a fair employment practices complaint that had been filed
against the sheriff. Both of these stories were accurate. Some
6,500 copies of the newspaper were distributed that day.
Late that night, before the election, six deputies set out in two cars while
off duty and out of uniform. They drove about the county buying newspapers
from vendors and news boxes. They obtained receipts and videotaped
their activities so there would not be allegations they stole the newspapers.
Several of them wore their firearms or jackets with the label “Sheriff”.
One of the deputies wore a Fraternal Order of Police sweatshirt.
Voorhaar and Fritz both contributed $500 to the plan to help defray purchasing
costs. By the end of the next morning, the deputies had visited roughly
40 stores and 40 news boxes and obtained about 1,600 total copies of the
paper.
The newspaper subsequently brought suit alleging violation of its First Amendment right. Trial court granted summary judgment for the sheriff and the deputies. Newspaper appeals.
HELD: There is no question that if the defendants acted under color of state law, they violated the newspaper owner’s constitutional rights. The seizure clearly contravened the most elemental tenants of First Amendment law. First, the deputies targeted the newspaper for suppression in retaliation because they disagreed with its viewpoint and intended to prevent its message from being disseminated. Second, the discussion of public issues and the debate on qualification of candidates for public office is integral to the operation of the system of government established by the Constitution.
The First Amendment has its fullest and most urgent application precisely to the conduct of campaigns for public office. In suppressing criticism of their official conduct and fitness for office on the very day voters were heading for the polls, the sheriff and his deputies did more than compromise some broad First Amendment right, they struck at its heart. Additionally, the First Amendment is more than about the publisher’s right to cover his costs. It protects both the speaker’s right to communicate and the intended recipient’s right to hear. Compensation in the form of lost profits is legally insufficient as a remedy for this breach of First Amendment freedom. The court has no doubt that the seizures in this case were perpetrated under color of state law. There was sufficient legal relationship between the deputies as public officials and their actions. They carefully orchestrated the plan against the newspaper and the mere fact they had taken off their uniforms and badges did not take the activities outside the scope of the Constitution. Voorhaar’s position as sheriff gave him the ability to shield his co-worker’s from the consequences of a Maryland statute that declares it unlawful to prevent others from reading a newspaper. Additionally, the contributions he and Fritz made to the campaign showed their solidarity with the deputies involved in the seizures. The evidence revealed that during the course of the seizures, the deputies were recognized as police officers by store employees and others throughout the county. They carried their state-issued firearms and in several instances wore apparel linking them to law enforcement.
While newspapers such as St. Mary’s Today may stir the ire in the objects of their irreverence, the court could hardly say on that account that they play no useful part in the political dialogue. No doubt the public has formed over time its opinion of the paper’s responsibility and reputation. If the deputies believed its attacks to be scurrilous, the remedy was either to undertake their own response or to initiate a defamation action. It was not for law enforcement to summon the organized force of the sheriff’s department to the cause of censorship and dispatch deputies on the errands of suppression in the dead of the night. Reversed for publisher and remanded for further proceedings. [Rossignol v. Voorhaar, 316 F.3d 516 (4th Cir. 2003)]
Wagstaff, an African-American police officer, initially worked on the department as a patrol officer. After two years on the job, he applied for and received a transfer to the Crime Area Target Team (CATT), the city’s community policing unit. As a CATT member, Wagstaff was involved in local community activities and followed up on neighborhood complaints.
After about four years in that slot, he was promoted to corporal, which required him to return to uniform patrol duty outside of the CATT unit, but still in the same district. To win this promotion, Wagstaff presented a resume and a letter of interest, took a written test, and passed an oral evaluation.
Approximately six months later, Wagstaff submitted a letter of interest in being assigned to an upcoming vacant corporal’s position with the CATT team. He was told on several occasions by the sergeant that the job was his and that the interview process was a mere formality.
In fact, selection for the CATT corporal position fell to the discretion of the division captain who was white. The captain later testified that he initially intended to select Wagstaff for the position, but after consulting with his superiors, one of whom was black, it was decided that a fair consideration had to be given to all three candidates who applied. Consequently, superior officers interviewed Wagstaff and two other candidates. They were asked various hypothetical questions and given, among other tests, the assignment of drafting an operations plan to address a hypothetical complaint about drug sales. Apparently, Wagstaff’s operations plan was viewed as poorly done. The selection panel subsequently transferred a white corporal to the CATT.
Wagstaff was disappointed with the decision and believed that he had been discriminated against based on his race. Consequently, he sought a transfer out of the patrol district. A few weeks later, Wagstaff missed a mandatory supervisor’s meeting and was handed a notice of disciplinary action. Three hours after receiving this written reprimand, his request for his transfer out of the district was granted. Wagstaff subsequently pursued an equal employment claim over the original failure to be transferred to the CATT. The matter ultimately resulted in a suit in federal court. The city moves for summary judgment.
HELD: To establish a prima facie case of racial discrimination, Wagstaff must show that he is a member of a protected class, he suffered some adverse employment action, his job performance met the employer’s legitimate expectations, and the adverse employment action occurred under circumstances that support an inference of unlawful discrimination. The Supreme Court defines “adverse employment action” as a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Prior case law holds that a mere refusal to grant a transfer that the employee desires does not qualify as an adverse employment action unless the decision had some significant detrimental effect on the employee. Significant detrimental effects on an employee include reduced pay, diminished opportunity for promotion, less responsibility, or a lower rank.
Had Wagstaff been transferred to the CATT, he would have received use of a pager, a take-home vehicle, and a different, more desirable schedule. The court views these differences from that of being a uniformed patrol officer as not being sufficiently significant to support the finding that they constituted an adverse employment action. Had Wagstaff become a CATT corporal, he would have maintained the same rank, worked the same number of hours per month, and made the same salary as his job as a uniformed patrol corporal. While CATT members frequently received a pager and a departmental vehicle, prior case law has held that Congress did not intend fair employment law to provide redress for trivial discomforts endemic to employment. In short, the benefits that accompanied the CATT position simply do not qualify as “significant” in light of the fact that the primary components of Wagstaff’s job, rank, wages, and work hours remained the same. Summary judgment for city. [Wagstaff v. City of Durham, North Carolina, 233 F.Supp.2d 739 (M.D.N.C. 2002)]
Kennedy, a Council Bluffs police officer, was terminated from employment. Similarly, another officer was suspended. Both officers appealed their sanctions to the civil service commission.
The commission had adopted rules to cover such matters and, among other things, had provided for a hearing officer to handle disciplinary appeals. The hearing officer presided over the hearings, received evidence, and submitted recommendations to the commission favoring upholding the disciplinary action. The commission concurred with the recommendations of the hearing officer and upheld Kennedy’s termination and the other officer’s suspension.
Both officers appealed arguing that the civil service commission had acted contrary to state law by delegating its responsibilities to the hearing officer. Trial court upheld the discipline and officers appeal.
HELD: The home rule amendment to the Iowa Constitution grants authority to municipalities to take action that is not inconsistent with state law. Prior case law holds that state statute grants to local civil service commissions the sole authority to hear disciplinary appeals. Additionally, the state civil service law states that an officer subject to discipline can be removed, demoted, or suspended “after a hearing by a majority vote of the civil service commission.” Thus, the civil service commission has jurisdiction to hear and determine matters involving civil service employees. The power to hear and determine is an essential component of the commission’s mandate. By assigning that responsibility to the commission, the legislature intended that all critical duties be performed by those persons empowered by law to do so, i.e., the duly appointed commissioners. An essential element in hearing and deciding civil service appeals is a credibility assessment of the witnesses who testify. Thus, it is the commissioner’s duty to personally hear the testimony presented. Reversed for officers and new hearing ordered before civil service commission. [Kennedy v. Civil Service Commission of Council Bluffs, 654 N.W.2d 511 (Iowa 2002)]
The deputy sheriffs’ union and the sheriff were parties to a collective bargaining agreement. The union filed a grievance alleging that the health and safety of its members assigned to the civil bureau were jeopardized by the sheriff not providing the proper training and tools to carry out their duties, specifically firearms. Pursuant to the contract, the matter went to an arbitrator.
The arbitrator found that the equipment issued to civil deputies (bullet proof vests and handcuffs) raised the presumption that they were in a dangerous assignment. Consequently, the arbitrator determined that it would be irresponsible to deny civil deputies other equipment they might need to meet the threats to their safety. The arbitrator ordered the sheriff to provide the civil bureau deputies with firearms and training. Trial court refused to enforce the arbitration award and union appeals.
HELD: An agreement to submit to arbitration disputes arising out of a contract is now favorably recognized by the courts for the private and practical resolution of disputes with maximum dispatch and at minimum expense. Judicial intervention on public policy grounds constitutes a narrow exception to the otherwise broad power of parties to agree to arbitrate all of the disputes arising out of their relationships and the expansive power of arbitrators to fashion a fair determination of the parties’ rights. The narrow public policy exception where a court will intervene applies only in cases in which public policy’s considerations, embodied in a statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator.
The trial court in this case found that the arbitration award contravened public policy because it invaded a discretionary authority granted to the sheriff by the collective bargaining agreement and by state law to determine whether work will be accomplished with the aid of a firearm. However, this public policy consideration does not meet the strict standards to develop the case law for overturning such an award on public policy grounds.
The subject in question involves matters relating to the general health and safety of the civil deputies, an arbitrable dispute pursuant to the terms of their labor contract. By their collective bargaining agreement, the parties agreed to submit to arbitration issues involving health and safety of the civil deputies and such a choice will be honored by the courts since in an absolute sense, it does not violate any statute. [In re arbitration between Monroe County Deputy Sheriffs Assn. and Monroe County, 752 N.Y.S.2d 457 (N.Y. App. Div. 2002)]
Danforth was a female sergeant on the state police. In 1991, she sued the department for sex discrimination. A settlement was ultimately reached in the matter. Subsequently, she filed a complaint that she was being discriminated against by the department for whistleblowing. State labor board found that, indeed, she had been the victim of such discrimination.
Later, Danforth and several other female troopers filed a complaint with the state labor board alleging discrimination based on sex. During that grievance hearing, in an effort to impeach an adverse witness who was also a sergeant on the department, Danforth’s attorney asked the witness if he had ever told Danforth that he had lied in a deposition. Prompted by this question, an internal affairs investigation was summarily brought to determine if the witness had in fact lied in a deposition. With one business day’s notice, Danforth was ordered to appear as a material witness for an internal affairs interview. Danforth was unable to obtain counsel after only one day’s notice. The investigative officer excused her from appearing and ordered her to appear four days later. Again, she was unsuccessful in obtaining counsel, but attended the interview nonetheless, asserting her right to counsel in refusing to answer questions until she obtained one.
Three days later, Danforth herself became the subject of a separate internal affairs investigation based on an alleged violation of the department’s code of conduct by failing to fully and truthfully answer questions in connection with the internal investigation. Again, she was ordered to appear for an interview and again she was unable to obtain counsel. She answered some, but not all of the questions posed to her. Formal charges were filed against Danforth. The police commissioner determined that she had violated the code of conduct. He ordered her dismissed from the force.
Danforth appealed the action to the state labor board, asserting that her dismissal was without cause and with improper motives. She claimed that she was the only member of the department who had been ordered to answer the questions without counsel present after only one day’s notice and after asserting her right to counsel. She also claimed that her dismissal was in retaliation for her prior grievances and whistleblowing. In the proceedings before the labor board, Danforth sought to subpoena various reports from the state police. Among the reports were allegations of misconduct against other officers as well as written logs alleging misconduct. Danforth suggested that individual officers names be removed from the reports in the interest of their privacy. She also sought copies of internal affairs investigation files about her as well as e-mails and other written correspondence regarding her employment.
The state police moved to quash the subpoenas arguing the records were confidential under Vermont law. Labor board issued an order to the state police to produce most of the information sought by Danforth. The board did put forth a mechanism whereby privacy of other officers would be protected. State police appeal alleging that the labor board lacked authority to order the department to disclose internal affairs records since those were confidential under state statute.
HELD: As a public administrative body, the jurisdiction of the labor board is exclusively conferred by statute. Under its enabling legislation, the board is authorized to hear and make final determinations of the grievances of all employees eligible to appeal to the board. A review of state law reveals that the labor board is indeed authorized to hear Danforth’s appeal. Further, the power of the labor board to hear the appeal is provided in the collective bargaining agreement between the police union and the state, which includes a grievance procedure culminating in an appeal to the board.
The state police argue, however, that even if the board is empowered to hear the grievance, it is barred from obtaining internal affairs’ records. Indeed, state statute mandates that records of the office of internal investigation shall be confidential, but makes three exceptions. The statutory exceptions include the right of the state police advisory board to have access to the records, the mandate that the police commissioner shall deliver records to the appropriate prosecutors in criminal cases and, that the state police advisory board may in its discretion make the records public. The state police argue that Danforth’s case fits none of these exceptions.
However, adhering to the mandate that all internal affairs’ records must be confidential except in those specific instances where release is authorized would result in an injustice to complainants such as Danforth who claim they were unfairly treated by the department. The court assumes the legislator did not intend a statutory scheme that allows a member of the state police to bring a grievance to the labor board and at the same time create an absolute shield against inquiries into how the police treat its members. It is true the statutes in this matter would prevent members of the state police from accessing the very evidence that may support a claim of discriminatory treatment. The labor board’s ruling that certain records must be disclosed to Danforth while being modified to ensure privacy was sufficiently narrow in scope to protect the privacy of department employees while still permitting Danforth access to pertinent internal affairs information. The labor board’s order to release modified internal affairs’ records affirmed. [In re grievance of Gloria Danforth, 812 A.2d 845 (Vt. 2002)]
I am with a California agency and I am trying to obtain information regarding spouses working in the same patrol vehicle. We have recently had questions regarding the appropriateness of allowing spouses to "partner up" in the same patrol vehicle. Specifically, there is a California law which protects spouses from testifying as a witness against the other. Such a law may affect an investigation into an incident involving both spouses. We are curious as to whether your publication has ever researched this topic, or, if you could suggest other resources that could be helpful.
A search of Police Labor Monthly archives reveals no reported cases on the conflict between the spousal privilege and the administrative authority to require a police officer to report on the conduct of a fellow officer.
This conflict is obviously an unintended consequence of the relaxation of anti-nepotism rules in police agencies wherein kin, including spouses, are permitted to work in the same agency. In the incident in question, the spouses were assigned as partners. No research has been found that reports the number of married spouses who are employed in the same law enforcement agency. Experience suggests that the number is relatively small compared to the over 600,000 officers in the nation. Similarly, the number of spouses assigned to work together is likely miniscule.
Nonetheless, the question remains: Can a law enforcement agency compel one officer-spouse to report and testify against another officer-spouse? The issue will likely be controlled by the scope of the spousal privilege in the particular state. The spousal privilege normally takes two forms: the competency of one spouse to testify against the other spouse and the bar on testimony regarding communications during the marital relationship. Complicating the matter is the question of which spouse holds the privilege. Can one spouse voluntarily choose to testify over the objection of the other? The answer to this question varies from state to state.
California, where the reader's inquiry originated, has a statutory privilege that applies to spousal testimony in "proceedings." The statute defines the term to include not only trials but also administrative proceedings. Logic would suggest that the spousal testimony would be barred at a formal disciplinary hearing. However, the statute might not on its face bar the department from requiring that the one spouse submit to an internal affairs interview about what they observed. By way of analogy, police investigators frequently interview wives and husbands who are married to criminal suspects. The law does not limit their cooperative responses during the investigative phase. However, using the testimony at trial, or an administrative hearing, runs up against the spousal privilege rule.
The moral of the story would appear to be that allowing spouses to partner
together or to be in the supervisory chain of command is administratively
a bad idea. Whether or not courts would enforce a signed waiver of the
spousal privilege as a condition of employment or assignment remains an open
question.
police officers
After 11 months of negotiation, the Village of Arlington Heights and its police officers have a new labor accord. The contract calls for a five percent wage hike retroactive to 2002 and a three percent boost this May 1. Another one percent will be forthcoming in November with identical hikes in May and November 2004. A three percent boost is awarded in May 2005. Officers are also granted the opportunity to cash out accumulated sick leave to help pay for insurance premiums upon retirement. A retiring officer can use 15 sick days to pay one month's premium. The threshold drops to 12 days in the contract's second year and 10 days in the final year. The contract covers the 81 members of Lodge 80, Fraternal Order of Police.
police officers
Big pay raises in an effort to attract new police recruits are the hallmark of the new labor pact between Fraternal Order of Police, Lodge 33, and the City of Cape Coral. Over the next two years, starting pay will jump 25 percent while the top pay step will increase by about 21 percent. Sergeants will garner pay boosts near 20 percent by contract end. On January 1, 2005, beginning officers will earn $36,400 while sergeants will draw $51,043.
police officers
A projected shortfall in the municipal coffers has prompted the City of Houston and its police officer's union to revise and extend their current meet-and-confer agreement. Members of the Houston Police Officers' Union, IUPA, AFL-CIO, have agreed to postpone for six weeks an eight percent raise due January 1, 2004. In exchange, the union members will receive a two-and-one-half year extension of the contract with three percent wage hikes in 2005 and 2006. Other provisions permit disciplinary suspensions of up to 90 days to be deducted from an officer's accumulated time bank instead of being served without pay. The new pact, which still must be approved by city council, will expire January 31, 2007. The modification saves the city about $13.5 million in the next fiscal year.
police officers
A three-member arbitration board has awarded Pittsburgh rank-and-file
police officers a four percent wage hike for this year coupled with two
percent pay boosts in both the first and second halves of 2004. Employee
payments for health care will be frozen in January 2004 and eliminated in
July 2004. The award, covering members of Fort Pitt Lodge No. 1, Fraternal
Order of Police, runs for two years effective January 1, 2003. A veteran
officer will now draw a base of $50,117, going to $52,141 by the end of the
award's term. The arbitrators also granted health, dental, and vision benefits
to same-sex partners of police personnel.
