The coming of spring often brings influenza and head colds to the residents of New England but a different form of flu - the blue strain - struck New Bedford, Massachusetts in mid-April. Twenty-one of 24 officers scheduled to work the evening shift on April 14 called in sick and seven others reportedly left at mid-shift claiming illness. The following day, eight officers reported sick on the night shift and another 20 called in ill for the day shift. Filling the vacancies were officers held over from the day shift, officers still in training, and personnel usually detailed to plainclothes assignments.
While the police union president denied this was a union-approved job action, officers are reportedly unhappy over the mayor’s plan to close two substations and move all officers to the main police headquarters. Mayor Frederick Kalisz claims the plan will save the city $1.1 million by reducing overtime necessary to cover minimum manning requirements at the three police stations. Without the closures, the mayor says that police lay-offs would be necessary. The city has also decided not to fill 25 vacancies in the department in an effort to save further monies.
Union officials argue that station closures should be negotiated. On April 15 the police union unsuccessfully sought a court injunction to prevent the closing of the two stations. Superior Court Judge John P. Connor ruled, “The determination of whether a building remains open is not a matter of collective bargaining.”
Officers wanted the city to have new schedules for command officers and patrol personnel reassigned to headquarters approved by union vote before the stations were closed. However, the mayor said the consolidation had been postponed twice in order to give the union time to vote and each day that passed reduced the opportunity to save money.
Graciano Perreira, President of the New Bedford Police Union, saw the matter differently because the union was reportedly close to an agreement with the city on the closings. “If the union had voted it up, we would have gotten something; if we voted it down, then shame on us,” Perreira said. According to one source, the union was willing to agree to the closures in exchange for a four-day on, four-day off work schedule and extra officers being assigned to evening shifts on weekends.
As to the absentee officers, Perreira observed, “We have sick time; we’re entitled to use it.”
The city, however, pointed the finger at the union. City officials appeared before the Massachusetts Labor Relations Commission and argued that the union orchestrated the job action. City officials said the sickout cost $33,000 in overtime and asked the labor board for a cease-and-desist order prohibiting future unauthorized absenteeism. The commission has not yet ruled on the request.
Under Massachusetts law, public employees, including police officers,
are barred from striking. If a determination is made that the officers
were not in fact sick, their pay could be docked and they could be subject
to disciplinary action.
Managerial/confidential employees
Ranking employees who because their duties include heavy involvement with personnel matters, budget decisions, and policy development are excluded from membership in a bargaining unit.
The war may be over but the hard part - securing the peace - is just beginning and the U.S. government has apparently decided that American police officers can play a key role in that effort. A contractor with the U.S. Department of State is seeking present and former police officers willing to help restore order in Iraq by training new police officers in the post-Saddam era. The hiring effort is coming as many police agencies are talking about lay-offs.
Federal officials are planning to hire as many as 1,150 police officers, corrections officers, and other criminal justice experts to participate in the proposed establishment of U.S.-modeled police departments and court and prison systems in Iraq. Julie Shinnick, a State Department spokeswoman, said the first of 26 Justice Department officials will arrive in Baghdad shortly to join retired General Jay Garner’s new Office of Reconstruction and Humanitarian Assistance. They will determine how many officers, advisers, and trainers will be needed to help rebuild police forces and courts. She said the government has asked Dyncorp International to recruit 150 candidates to “get the ball rolling” and then search for as many as another 1,000 people with law enforcement experience who are willing to go to Iraq.
Officials were not certain what the salary will be for the police, prison, and justice advisers, but they estimated it would be $80,000 a year.
“We are trying to identify law enforcement professionals for an expected mission to Iraq to help in training and counseling from police to courts to corrections,” Shinnich said. “At this point, there are no plans to send them to enforce law and order in Iraq. We will be working within existing Iraqi structures to stand up, advise, and train an Iraqi police force.”
Qualifying candidates must be U.S. citizens with a total of 10 years of law enforcement experience, speak English, and possess a driver’s license and a valid passport. Interested persons can apply on line at www.policemission.com/resume.asp or contact the company at (866) 258-8770.
Dyncorp International, a division of El Segundo, California-based Computer Sciences Corporation, previously handled the recruitment of police advisors for Kosovo. The contract could be worth up to $50 million for the company the first year.
In a strongly worded letter to U.S. Senator Ted Stevens in early April, Dennis Slocumb, Vice President of the International Union of Police Associations (IUPA), AFL-CIO, criticized the Alaska Republican for comments suggesting that emergency workers should forego overtime during the war on terrorism. Slocumb objected to the senator’s comments reported in the New York Post newspaper April 2 stating, “I don’t know why the people working for the cities and counties ought to be paid overtime when they’re responding to matters of national security.” Stevens, the chairman of the Senate Appropriations Committee, pointed out, “Those people overseas in the desert - they’re not getting paid overtime.”
The senator’s comments drew similar negative reactions from leaders of New York City’s Patrolmen’s Benevolent Association and Uniformed Firefighters Association. Likewise, Democrats used the comments as an opportunity to show support for public safety personnel “Cops and fire fighters should sacrifice more? I think they sacrifice enough already,” said New York’s Senator Hillary Rodham Clinton.
Stevens’ comments came during discussion on homeland security funding. The senator suggested that the Department of Homeland Security “had more money than it could spend.”
Expressing shock at the senator’s remarks about police officers and fire fighters, Slocumb in his letter wrote, “I am appalled at your suggestion. From the day they take their oath of office, police and fire fighters ‘volunteer’ to stand up for America, not just in a time of war, but every day. They are frequently disciplined for driving too fast to get to a catastrophe most men and women flee. Such was the case on 9-11, when 63 of those killed were off duty. Such is the case each day across this country. About 150 police officers sacrifice their lives each and every year in their efforts to keep America safe. They volunteer Mr. Stevens, to do those things no one else in this society is willing or able to do. That you would have them perform their duties in a professional manner without compensation would be laughable were you not installed in such a lofty position of public trust.”
While no response to the letter has been released by Senator Stevens’ office, a staff member reportedly told IUPA that the comment was “taken out of context.” Stevens is currently in his sixth term and serves as President Pro Tempore of the Senate.
Chuck Canterbury, National President of the Fraternal Order of Police, recently welcomed the newest members of the Executive Board following a special election held to fill vacancies left by the deaths of Steve Young and Ray Franklin.
Kenneth Rocks, Vice President of Lodge 5 in Philadelphia, who was elected to the office of National Sergeant-at-Arms at the 55th Biennial Conference in Phoenix, Arizona, stood for and won election to the office of National Vice President. Canterbury previously held this post but succeeded to the office of National President following the death of Steve Young in January of this year.
R. Michael Taylor, Secretary of the Ohio State Lodge, stood for and was
elected to the office of National Second Vice President, which was left vacant
by the death of Ray Franklin in December 2002.
Patrick Yoes, President of the Louisiana State Lodge, won election to the
office of National Sergeant-at-Arms, which was left vacant by the election
of Rocks to the office of Vice President.
The terms of the officers will end at the 56th Biennial Conference in Providence, Rhode Island, in August of this year.
Many police officers wear an American flag on the shoulder of their uniforms. But what about on their heads? No way, at least not in San Francisco. The spectacle of officers wearing red-white-and-blue bandannas while policing antiwar protests has set off a departmental mini-furor.
The incident began when Acting Police Chief Alex Fagan saw a newspaper photograph of four officers in flag bandannas. The department has a strict dress code and no type of bandanna - often used to absorb sweat or to increase comfort under a hot helmet - is permitted unless it is completely covered by a helmet.
“Officers can wear anything they want under their helmets because it cannot be seen,” said Sergeant Neville Gittens, a department spokesman. “But when you take the helmet off, you must take off the ‘do rag,’ whether it’s red, white, blue, purple or orange”
Some antiwar activists were also upset. “If they are allowed to wear flag bandannas, then the police who oppose the war should also be allowed to wear peace buttons,” Andrea Buffa, a spokeswoman for United for Peace and Justice, a national antiwar coalition, told The New York Times newspaper.
The officers were not disciplined but received counseling and assured their commanding officer they would not wear the bandannas again. Alan Schlosser, legal director of the American Civil Liberties Union of Northern California, said, “The police chief got it right. They should not be wearing an American flag bandanna on the job.”
Chris Cunnie, President of the San Francisco Police Officers Association, which represents the department’s 2,300 officers, said he was frustrated by discussions over flag bandannas. “The country is at war, the City of San Francisco is facing a budget deficit, and we’re having a debate about bandannas?”
Acting Chief Fagan said of the bandannas: “It looked inappropriate.
It’s not part of our uniform. It was the ‘do rag’ that offended me.
It was reminiscent of motorcyclists wearing ‘do rags’ under their helmets.”
He said he did not believe that the officers were trying to make a political
statement by wearing the flag bandannas.
Petitions have been filed recently in three cases of interest. In Joseph v. Salt Lake City Civil Service Commission, No. 02-1211, a former police officer who lost his job following a violation of the department deadly force policy is seeking relief from the Supreme Court on the grounds that he did not receive a fair hearing. Specifically, Joseph, who is representing himself in the appeal, questions the constitutionality of the city attorney serving both as prosecutor in his case as well as advisor to the civil service commission.
In Arndt v. Koby, No. 02-1313, a Boulder, Colorado, detective is attempting to overturn a lower court ruling that the chief of police did not violate her First Amendment rights by issuing a gag order prohibiting her from responding to media criticism of her efforts during the JonBenet Ramsey murder investigation. Arndt has to date been unsuccessful in convincing a court that she had a constitutional right to defend her professional reputation from media attack.
City of New York, New York v. Patrolmen’s Benevolent Association of the City of New York, No. 02-1321, concerns New York City’s efforts to reduce community tensions by transferring a group of black officers into a precinct where a Haitian immigrant had been beaten and tortured by white officers. The beating drew widespread media attention. In a suit brought on behalf of the transferred black officers, lower courts ruled that the city did not sufficiently justify the race-based transfer program. Officers were awarded $50,000 each. The city is seeking high court relief on the grounds that the transfers were justified under the circumstances.
No review decision has yet been made in these cases.
Mansoor, a veteran police officer, had regularly received above average performance reviews. However, beginning in 1997 he began to express complaints about various department policies ranging from proposed pay plan to lack of overtime opportunities. According to the officer, department officials responded negatively to his criticisms and created a stressful work environment for him. This alleged stressful environment subsequently caused him to seek medical attention. A private physician diagnosed Mansoor with panic disorder and upon the doctor’s recommendation, Mansoor took a 40-day medical leave.
Upon his return to work, the chief of police expressed doubts about Mansoor’s fitness for duty. At the chief’s request Mansoor met with a psychologist for an evaluation. As a result of the evaluation the chief relieved Mansoor of duty and placed him on administrative leave because of Mansoor’s alleged impaired judgment and related behavior.
The chief established three conditions for Mansoor to return to work, including obtaining appropriate medical treatment, undergoing a follow-up psychological examination, and being willing to abide by management policies and decisions. Mansoor sought to comply with these requirements and ultimately was given a plan of assistance to facilitate his return to work. One element of the plan, approved by the chief of police, stated that Mansoor was to refrain at all times from being critical or negative toward the chief of police, county officials, or other members of the police department. A personal meeting with the chief and several members of the command staff failed to fully convince Mansoor that his First Amendment rights were not being violated.
Consequently, Mansoor filed suit against various police officials claiming that the assistance plan unconstitutionally punished him for earlier complaints and operated as a prior restraint on his First Amendment right of free speech. At trial, several of the police officials sought qualified immunity, which the trial court denied. Police officials appeal.
HELD: Qualified immunity is a defense to an allegation of a constitutional violation if the alleged constitutional right was not clearly established at the time of the event. As to First Amendment rights, it is well settled that citizens do not relinquish those rights by virtue of accepting public employment. Rather, citizens who work as public employees retain the right to comment upon matters of public concern so long as the comments do not unduly disrupt the operation of the workplace.
Here, the defendant’s claim that the plan’s limitations on future communications “relating to your employment” render it constitutional. This interpretation, however, works only if one reads the phrase not to include matters of public concern. In fact, “matters relating to your employment” clearly could encompass matters of public concern. For example, the plan as written would apparently restrict Mansoor’s right to speak about perceived racial problems within the department, a right courts have explicitly held to be of public concern.
The defendants further assert that the balancing task must be resolved
in their favor because a government employer has an interest in preventing
workplace disruption. The problem with this contention is that the
record fails to show any direct disruption Mansoor ever caused. In
fact, upon returning from his medical leave he received a letter of appreciation
for his professional response to a burglary. While the law does not
require government officials to wait until a disruption has occurred before
taking action against an employee, there is no reason to believe that Mansoor’s
conduct was likely to cause a disruption prospectively since it had not caused
disruption in the past. Mansoor’s right as a public employee was clearly
established prior to the action taken against him. As such, the command
staff is not entitled to qualified immunity from suit. Matter continued
for further proceedings. [Mansoor v. Trank, 319 F.3d 133 (4th Cir.
2003)]
Kiser began working as chief of police for the city in 1997. By city ordinance he was designated in the unclassified service. Ultimately, a conflict arose between the chief and the mayor arose. This culminated in the mayor writing a memo to members of the city council stating, among other things, that he had concerns about Kiser’s performance and that Kiser had encouraged questionable traffic stops. Eventually, the mayor terminated Kiser from his position. Two weeks later, the city council held a special meeting to confirm the termination. Kiser attended the meeting, and although he did not request a public hearing regarding his termination, he did request to attend the council’s executive session during which his termination would be considered. The council decided to deny Kiser’s request to attend the executive session. When the council returned to open session to take a formal vote, Kiser was asked if there was anything he wished to say to the council. Kiser responded by asking to have an opportunity to respond to the allegations the mayor had made against him. The council refused this request and formally voted to confirm Kiser’s termination. The termination was reported in the local news media. The newspaper quoted the mayor as saying that Kiser was terminated because “he did not meet our expectations,” was defiant of the mayor, and his termination was in the best interest of the city. Based on the manner in which he was terminated and the statements allegedly made about him by the mayor, Kiser filed suit against the mayor and the city claiming wrongful termination and a violation of his constitutionally protected rights. City moves for summary judgment.
HELD: Kiser first claims that he was deprived of due process of law as protected under the 14th Amendment to the Constitution. In order to take advantage of procedural due process under the 14th Amendment, a plaintiff must establish the existence of a liberty or property interest of which he was deprived. To succeed on his claim, Kiser must demonstrate that he had a property interest in continued employment as the chief of police.
According to city ordinance he was employed in the unclassified civil service. Ohio law consistently holds that unclassified civil servants have no property right to continued employment. Kiser argues, however, that despite the city ordinance, the city charter grants the property right because it provides that the police department can be eliminated only by a change in the charter. That section of the charter, however, further states that the police department shall be governed by ordinance in conjunction with civil service regulations of the city and state statutes. Since the charter specifically states that the police department shall be governed by city ordinance and the city ordinance says Kiser is an unclassified employee, the conclusion must be reached that he has no protected property interest in the job.
The former chief further claims the right to a name-clearing hearing because he was deprived of a liberty interest. Prior case law holds that when an individual’s reputation or honor is at stake because of the government’s action, due process requires that the individual be given notice and a hearing so as to have an opportunity to clear his name. A name-clearing hearing is required only if the employer creates and disseminates a false and defamatory impression about the employee in connection with his termination so as to infringe on his right to liberty. Such a statement must be stigmatizing and must be more than mere allegations of improper, inadequate per-formance, or incompetence. Third, the stigmatizing statements must be made public. The ex-employee must claim that the charges are false and the public dissemination must have been voluntary. In applying these factors in the case at hand, Kiser’s claim fails. Although the former police chief alleges that the mayor indicated Kiser encouraged questionable traffic stops, he failed to establish that the statement led to Kiser’s termination. In fact, one of Kiser’s complaints is that the city failed to publicly state any reason for his termination. The comments the mayor made to the media were mere opinions and did not rise to the level of depriving Kiser of his liberty interest. Additionally, Kiser has failed to present any evidence that the charges against him were even false.
Finally, Kiser claims that the mayor’s statements slandered him. When a plaintiff claiming slander is a public official and the alleged defamatory statements relate to his official conduct, the plaintiff must demonstrate that the false statements were made with actual malice. Actual malice is defined as publishing a statement with knowledge of its falsity or with reckless disregard for whether it is false or not. The record is void of any evidence that the mayor acted with actual malice when he alleged that Kiser encouraged questionable traffic stops. There is no evidence the mayor entertained serious doubts about the veracity of his statement. Summary judgment for city. [Kiser v. Lowe, 236 F. Supp.2d 872 (S.D. Ohio 2002)]
Two individuals worked in the kitchen in a Thai restaurant. One
had been the head chef for over a year while the other one initially worked
as a dishwasher. At various times, the two had argued and one had actually
threatened the other with a knife. One morning as the restaurant was
beginning to open, the chef plunged a knife in the back of the kitchen assistant
for no apparent reason. As the struggle ensued between the two, a kitchen
employee ran to the police station down the block to report the stabbing.
Two police officers, including Yamaguchi, both in uniform, ran to the restaurant.
Arriving first, Yamaguchi became the officer with the primary officer responsible
for controlling the situation. The officers shouted “police” as they
entered the kitchen and observed the two men covered with blood. The
men were ordered to stop the fight. As order began to be established,
the chef, however, grabbed a pot, scooped it into a cauldron of hot oil,
and threw it in the direction of the kitchen assistant and the police officers.
He immediately scooped up a second pot of oil and threw it. Yamaguchi
sustained severe burns to his face and body as a result of the hot oil.
Subsequently, Yamaguchi sued the owners of the restaurant claiming they had
liability for the chef’s assault on Yamaguchi. The officer, in an effort
to get around the California statutory Fireman’s Rule, alleged that under
the doctrine of respondeat superior, the restaurant owners were responsible
for the chef’s conduct and, thus, fell within one of the exceptions to the
Fireman’s Rule. Over the restaurant owners’ objections, the trial
court instructed the jury that the owners were responsible for the act or
omissions of their employees in this situation. The jury subsequently
found judgment in favor of the police officer in excess of $1,000,000.
Restaurant owners appeal.
HELD: As originally created, the Fireman’s Rule precludes a fire fighter
from recovering damages from the persons whose negligence contributed to
the fire that caused the fire fighter’s injuries. The rule applies
as well to police officers. The rule is based on the doctrine of assumption
of the risk: public safety officers whose occupation necessarily exposes
them to certain risk of injury cannot complain of negligent acts that create
the very reason for their employment. Further, public safety officers
are compensated through public benefits for injuries sustained in the line
of duty. California, by statute, has carved out an exception to the
Fireman’s Rule, however, to permit suits where the conduct causing the injury
was intended to injure the peace officer. Thus, willful and negligent
acts committed by someone who knew, or should have known, of the officer’s
presence raised liability.
Under the facts of this case, the chef would be subject to the exception for throwing hot oil onto the officer after he was clearly aware of the officer’s presence. The question presented, however, is whether the employers, the restaurant owners, are likewise liable under the doctrine of respondeat superior.
Under the doctrine of respondeat superior, an innocent employer may be liable for the torts an employee commits while acting within the scope of his employment. The determining factor in ascertaining whether an employee’s acts fall within the scope of his employment is not whether the act was authorized by the employer or benefited the employer, but whether the risk of such an act is typical of or broadly incidental to the employer’s enterprise. By contrast, the employer will not be held liable for conduct that occurs when the employee substantially deviates from employment duties for personal purposes, or acts out of personal malice, or the conduct is so unusual that it would be unfair to add the loss to the cost of the employer’s business. Whether an employee’s actions are within the scope of his employment is a question of fact that the plaintiff must establish for the jury. Additionally, the act of the employee must be reasonably foreseeable as a matter of law. This means that in the context of the particular employment the employee’s conduct is not so unusual or startling that it would be unfair to associate it with the employer’s business. A jury must determine both of these questions.
Trial court erred in ruling that the cook’s conduct was in the scope of his employment for the purposes of respondeat superior as a matter of law and on that basis instructed the jury that any act of the cook was the equivalent of the act of his employer. The consequences of this statement were devastating to the restaurant owners. By instructing the jury that the cook’s actions were attributable to the restaurant owners, the trial court essentially preordained a verdict for the police officer. Judgment reversed for restaurant owner. [Yamaguchi v. Harnsmut, 130 Cal. Rptr.2d 706 (Cal. Ct. App. 2003)]
Mejia was a 20-year veteran officer who was in pay grade seven of the department. She was recruited to a position in the juvenile section, a pay grade nine. Two other officers in the section had been reallocated to detective, pay grade eleven. The distinction between the police officer position and the detective position was that the police officer operated under the supervision of a detective. For approximately three years, Mejia operated in fact without directly being supervised by a detective and performed duties in the juvenile section comparable to those of a detective. Consequently, she and the union requested that her position be reallocated to that of detective, with the attendant higher pay grade. In response to the request, however, the department placed her under the supervision of a detective as required in the police officer position and she no longer was required to perform detective duties. She was granted detective pay for the prior time, but the request for permanent reallocation of the position of detective was denied.
Mejia and the union submitted an appeal of the chief’s decision to the civil service commission, which ruled that the reallocation was a management decision and did not violate any civil service rule. That decision was not appealed. Rather, the union filed a grievance seeking arbitration over the matter, claiming that the reallocation of position violated the collective bargaining agreement’s section barring discrimination on the basis of race.
When the county challenged the authority of the arbitrator to hear the matter, a hearing was held. Ultimately, the arbitrator ruled that the matter was within her arbitral jurisdiction. On appeal, trial court ruled for the county finding that the arbitrator had exceeded her jurisdiction as state law excluded classification matters from collective negotiations and, therefore, from coverage of the labor contract. Union appeals.
HELD: Under Hawaii law, court review of an arbitration award is limited. The parties have voluntarily agreed to arbitrate and they thereby assume all the hazards of the arbitration process, including the risk that the arbitrator may make mistakes in the application of the law and the finding of fact.
A trial court is authorized to vacate an arbitration award only on one or more of four statutory grounds and to modify an award only on one or more of three statutory grounds. One such ground is where an arbitrator exceeds her authority. Prior case law holds that the agreement of parties to submit issues of jurisdiction to the arbitrator may be overridden by statute. A genuinely preclusive statute will oust arbitral jurisdiction.
Here, a Hawaii statute is clear on the subject. The law specifically provides that excluded from the subject of arbitration are matters of classification and reclassification. As a consequence, the arbitrator lacked jurisdiction in this case. The officer was afforded an opportunity to present her case before the civil service commission and could have appealed that adverse decision, but chose not to do so. Hence, court review of the initial determination to deny reclassification was available. Affirmed for county denying grievance arbitration. [State of Hawaii Organization of Police Officers v. Hawaii County Police Department, 61 P.3d 522 (Haw. Ct. App. 2002)]
The city aviation department bought about a dozen surplus military helicopters used in the Vietnam War. The city used the salvaged parts from these helicopters for repair and maintenance of police department helicopters. Within a 10-month period, two of the city’s four helicopters crashed including one being flown by Lynch, a city police officer. As a result of Lynch’s injuries in the crash, he received worker’s compensation benefits.
Nonetheless, Lynch sued the city and three employees associated with the aviation department. The jury returned a verdict finding the three employees liable and awarded some $800,000 to Lynch. Trial court, however, overturned the verdict finding the city itself was not liable under prior court decisions. In addition, the court found the individual employees were not liable due to an Iowa statute. Lynch appeals arguing that the decision on which the trial court relied was no longer good law in light of subsequent statutory changes.
HELD: Iowa statute limits the civil liability of Iowa municipalities. Additionally, the statute provides that employees of municipalities are not personally liable for negligent acts for which the municipality itself is not liable. An employee is liable only if they acted with gross negligence.
Prior case law holds that worker’s compensation is the exclusive remedy for a public employee against the employer. Lynch argues that this holding, however, is no longer good law because of various changes the legislature has made to the worker’s compensation statute, including raising the contribution requirements and having the system administered by a single agency. However, none of these changes clearly altered the court’s prior decision that worker’s compensation is the exclusive remedy for the employee. The legislature was handed ample opportunity to alter the statute to overturn the court’s ruling and has chosen not to do so. Thus, Lynch is barred from suing his employer. This being the case, Lynch is also barred under statutory law from suing the individual employees, as municipal employees are liable only to the extent that the municipality is liable. Since the city is exempt from liability, the employees also are exempt. Dismissal of case affirmed. [Lynch v. City of Cedar Rapids, 656 N.W.2d 104 (Iowa 2003)]
Berry was a 21-year veteran state trooper holding the rank of sergeant. He was ordered demoted from that supervisory position after it was determined that he had worked various off-duty details without notifying the department as required by department regulations. As a result, the department did not include the wages on his W-2 form. An internal investigation later discovered that Berry had also not claimed the wages on his federal income tax returns. Berry appealed the demotion to the civil service commission denying the allegations against him and claiming there was no impairment of the efficiency of the organization and, therefore, no cause warranted discipline.
Subsequent to filing his appeal, Berry received his annual performance evaluation. Largely for the reasons given for his demotion, he was rated “poor.” The rating was subsequently upgraded to “needs improvement.” Berry filed an appeal of the “needs improvement” performance rating and the two claims were consolidated. In reviewing the matter, the civil service commission upheld the disciplinary action against Berry and concluded it did not have the jurisdiction to hear Berry’s appeal of the “needs improvement” rating. Trooper appeals.
HELD: An employee who has gained permanent status in the state police service cannot be disciplined except for cause expressed in writing according to the Louisiana constitution. Such an employee may appeal any disciplinary action to the civil service commission. The commission has the authority to hear and decide disciplinary cases and to independently determine the facts as well as assess whether the punishment imposed is com-mensurate with the cause. A reviewing court should not modify a commission’s order unless it is arbitrary, capricious, or constitutes an abuse of discretion.
A review of Berry’s various claims concerning his non-reported extra duty work finds them to be without merit. Department had explicit regulations concerning secondary employment and the procedural steps to be followed. The evidence shows that Berry, a veteran police supervisor, was knowledgeable of the procedures and failed to follow them. As a supervisor, Berry had a duty to set an example for his subordinates and to ensure subordinates knew and followed state police policies. When he violated various procedural orders, the state police and the civil service commission could reasonably conclude that he could not be entrusted to ensure that those under his command would follow them. Thus, there was no abuse of discretion in his demotion.
As to the appeal of the performance evaluation, Louisiana law provides
that the civil service commission shall have the authority to hear appeals
of disciplinary actions. Berry never argued that the performance rating
was a “disciplinary action.” The fact that the “needs improvement”
rating is based on the same occurrence as the disciplinary action is not,
in and of itself, a “disciplinary action.” Berry had already been demoted
at the time of the rating. Since it cannot be established that a performance
rating was a “disciplinary action,” the civil service commission was correct
in determining that it lacked jurisdiction over the matter. Affirmed
for state police. [Berry v. Department of Public Safety and Corrections,
835 So.2d 606 (La. Ct. App. 2002)]
Watson, a police officer, was under the influence of alcohol when he fired his service revolver in the direction of a residence on a college campus. Investigators found nine shell casings traceable to his revolver. No one was injured in the incident. Rather than terminating Watson, the city showed leniency, but decided to suspend him with conditions. With the assistance of his lawyer, Watson negotiated a last chance agreement.
Under the agreement, Watson was suspended for 90 working days from January to May. He was required to complete an alcohol recovery program before he could return to work. However, Watson did not enter the alcohol recovery program until just 15 days before his suspension was scheduled to end.
Apparently miffed at Watson’s delay in entering the program, the department moved to discharge him. Following a hearing, Watson was terminated. He appealed to the merit board, which found that the agreement implicitly required Watson to choose a program and complete it within the suspension time frame. This he failed to do and termination was justified. Various appeal courts upheld that determination. Former officer appeals.
HELD: The last chance agreement established three criteria for Watson to avoid discharge. Enrollment and participation in the alcohol recovery program was included within these criteria. The critical language of the agreement provided that the city would determine at its sole discretion when the conditions were met.
Obviously, the city was not satisfied with the slowness by which Watson enrolled in a suitable program and his subsequent failure to complete the program itself. Given the dangerousness of Watson’s initial conduct, the city acted in the public interest by requiring him to comply with both the letter and the spirit of the last chance agreement. Watson simply did not perform as contemplated by the parties and his discharge was warranted. Dismissal of officer affirmed. [Watson v. City of East Orange, 815 A.2d 956 (N.J. 2003)]
Callanan was a police officer assigned to be the property clerk. His captain directed him to prepare confiscated weapons for destruction by placing them in a destruction barrel. Weapons destruction was an infrequent event having last been conducted some seven years earlier.
While moving the barrel containing the guns, which weighed approximately 300 pounds, Callanan injured his back. He subsequently sought accidental disability retirement benefits. A hearing officer concluded that Callanan did not sustain an “accident” within the meaning of state law and, therefore, was ineligible for the accidental disability benefits. Officer appeals.
HELD: Under New York law, to be eligible for accidental benefits, one must suffer an “accident.” An “accident” has been defined as a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact. Crucial to the finding of an accident is a precipitating accidental event that was not a risk of the work performed.
Here, the officer stated this was the first time he had been involved in weapons destruction and that it was an infrequent event. However, given that the responsibilities of a property clerk entailed logging in and holding evidence, including weapons, until needed or destroyed, the gathering of such weapons for destruction was consistent with those duties.
While the officer attempts to make a case that he injured himself by slipping on oil that might have leaked from the barrel, no mention of this fact was included in the original incident report that Callanan prepared. There is substantial evidence supporting the denial of the application for accidental disability benefits as there simply was not an accident within the meaning of New York law. [Callanan v. McCall, 753 N.Y.S.2d 248 (N.Y. App. Div. 2003)]
Cuff was a deputy sheriff who worked as a corrections officer transporting prisoners in a county bus. Federal law required that the county test for drugs all employees operating commercial vehicles. In January 1999, the county directed Cuff to take a urine drug-screening test. The result of the test was positive for marijuana. When interviewed about the matter, Cuff initially denied using the illegal drugs but later recanted and told some fellow employees that he had been smoking marijuana off duty nearly every day for one month prior to the test. The matter was referred to the sheriff’s department for further investigation.
During interviews with an investigator, Cuff gave inconsistent stories about his drug use. The investigator’s report concluded that Cuff had consumed marijuana illegally, that he had committed the violation off duty, and that there was no evidence that he had reported to work under the influence of the drug. The county fired Cuff on the basis that he had violated the department policy regarding unlawfully using marijuana as well as providing false information during the course of an investigation.
At the time of his discharge Cuff was a member of the deputy’s union which had a collective bargaining agreement with the county. The collective bargaining agreement provided that an employee who tested positive for illegal drugs would be referred to the employee assistance program (EAP) for counseling. The contract further provided that an employee could not be disciplined for the use of illegal drugs unless he had previously tested positive for the use of drugs or refused to participate in the EAP. The union filed a grievance on Cuff’s behalf claiming that the county’s termination of him for his first positive drug test violated the collective bargaining agreement and, therefore, constituted an unfair labor practice.
The matter went before an arbitrator who agreed with the union that the county had violated the contract. The arbitrator ordered Cuff reinstated. The county, however, refused to reinstate him. The union then filed a proceeding before the employee relations board asserting that the refusal to accept the terms of the arbitration award was an unfair labor practice. The county responded that under Oregon law it was under no obligation to reinstate Cuff because an arbitration award must comply with public policy requirements in order to be enforceable. The county asserted that it was against public policy to hire back an officer who had illegally used drugs and who was dishonest. The employee relations board rejected the argument and county sought judicial review. The appeals court ruled that, indeed, state statute concerning the loss of a peace officer certificate by an officer who used marijuana constituted a relevant policy against the continued employment of the deputy sheriff. Consequently, the county’s refusal to reinstate Cuff was not an unfair labor practice notwithstanding the fact that the county violated the terms of the collective bargaining agreement. Union appeals on behalf of former deputy.
HELD: Under Oregon law, as a condition of enforceability any arbitration award shall comply with public policy requirements as clearly defined in statutes or judicial decisions. The key question is whether the award ordering reinstatement of an employee who purchased and used marijuana and then was dishonest about it fails to comply with some public policy requirement clearly defined by law. If the reinstatement fails to comply with public policy requirements in that way, then it is unenforceable.
The plain language of the statute mandates that a statute or judicial decision outline or characterize a public policy in such a way as to leave no serious doubt or question respecting the content or import of that policy. The court of appeals found that the statute providing for revocation of a peace officer’s certificate following a hearing, if he unlawfully used or possessed a controlled substance, constituted clear statement of public policy. A closer reading of the statute, however, provides that the certification of the officer will be lost after he has been convicted of drug-related offenses. It cannot be said that this statute defines a clear public policy respecting certification of officers who have not been convicted of any offense.
The county has not referred to any other statute or judicial position that contains a clearly defined public policy that would preclude Cuff’s reinstatement. Given this absence of a clear public policy, it was error to uphold the termination of the officer for use of marijuana, a fine- only offense in Oregon. Reversed and remanded for further proceedings. [Washington County Police Officers’ Association v. Washington County, 63 P.3d 1167 (Or. 2003)]
police officers
The city now has a new three-year contract with the Carlsbad Police Officers Association. Under the pact, the officers take a wage pass the first year but will receive a one percent pay increase on July 1, 2004, and 1.5 percent on July 1, 2005. The meager raises are due to financial straits the city finds itself in. About 40 police officers are covered by the agreement.
sergeants and lieutenants
Supervisors on the Detroit Police Department recently received an arbitration award granting pay hikes of three percent on July 1, 2003, five percent in July 2004, and another three percent in July 2005. Maximum years to top of pay scale were also reduced from six years to four years. Details of the award are pending while the arbitrator resolves disputes over sick pay and disciplinary issues. In addition, supervisors gained a new health care plan with no co-pay requirement. About 1,000 supervisors are covered by the award, which has a five year term. Base pay for veteran sergeants will go to $55,951 while veteran lieutenants will draw $62,774 come July. Personnel are represented by the Detroit Lieutenants and Sergeants Association.
police officers
A new five-year contract between the Laredo Police Officers Association, an affiliate of the Combined Law Enforcement Associations of Texas (CLEAT) and the city requires the city to make the maximum pension contribution allowed by law. Wages will also improve dramatically. In the first, second, and fourth years of the pact officers will receive a four percent raise. For the other two years, a salary survey of comparable agencies will be conducted and officers could receive pay hikes up to seven percent in the third year and nine percent in the final year. For the first time, officer will also receive shift differential pay. Over 300 officers are covered by the new agreement.
police officers
Members of the Schenectady Police Benevolent Association have agreed to
random drug testing and performance evaluations in exchange for pay raises
approaching 13 percent over four years. The newly inked pact with the city
is retroactive to January 2002. Under the terms of the contract, officers
can be asked to give urine samples or breath tests without warning. Any
officer failing the test would be subject to a 60-day suspension. A second
offense would result in termination. The chief of police will now be permitted
to select the lieutenant in charge of internal affairs. Previously, the
position was filled on a seniority basis. The pact is the first in recent
memory that was settled without going to arbitration.