The U.S. Department of Labor (DOL) recently unveiled proposed regulations that labor leaders claim would fundamentally alter overtime rights of workers, including police officers and fire fighters. While touted as ensuring wage and hour protection for lower wage earners, many higher paid personnel would become exempt from overtime eligibility under the Fair Labor Standards Act (FLSA).
Under the proposed guidelines, DOL is seeking to alter the definition of “white collar” employees. Workers earning less than $22,100 would automatically qualify for overtime compensation irrespective of the type of work they perform. The current threshold is $8060. But, workers who perform office or non-manual work and draw gross compensation of $65,000 or more annually would be excluded from overtime requirements! Absent existence of a labor contract, a municipal employer would be under no obligation to pay time and one-half to police officers and fire fighters assigned to office positions and whose annual wages exceed the threshold. Furthermore, a first-line supervisor who earns over $65,000 would be presumed to be an exempt employee.
Under current law, the “executive, administrative, and professional” exemption, as it is known, excludes from FLSA overtime rules salaried individuals who spend substantial portions of their time on the internal management of an organization. Under the proposal, an employer could invoke the administrative exemption if any of the employee’s duties are administrative in nature. Thus, a homicide detective who spends a portion of his time doing administrative paperwork might fall within the administrative exemption.
Michael Leibig, legal counsel for the International Union of Police Associations, AFL-CIO, estimates that at least 200,000 police officers would become exempt employees under the proposed rules. Further, Leibig suggests that given the choice of paying overtime to a younger officer - one making less than $65,000 - a police agency might actually save money by giving the overtime to a more senior officer, since that officer would only receive straight time at best for the excess hours. Leibig also expressed concern that the new rules would undermine the value of over 15 years of legal precedent interpreting the application of the FLSA to public safety workers.
DOL, to which Congress delegated the authority to issue interpretative regulations for the FLSA, is accepting written comments on the proposed changes until June 30. The complete text of the proposal can be found on the Internet at www.gpoaccess.gov/fr/index.html and searching “page 15560” (be sure to include quotation marks around the search item) or in the current volume of the Federal Register beginning on page 15560.
Any changes would not be expected to go into effect until next year.
Under federal administrative procedures, the new regulations will have the
force of law unless overturned by Congress.
1983 suit
A civil suit to enforce a right protected under the U.S. Constitution or federal statute. Cases are most often filed in federal court and involve so-called constitutional torts. Litigation derives its name from the federal law that authorizes such suits - Title 42 U.S. Code, Section 1983.
In a rare unanimous decision, justices of the U.S. Supreme Court ruled May 5 that the First Amendment does not prevent a state from suing professional charitable solicitors for fraud if they “make false or misleading representations designed to deceive donors about how their donations will be used.” However, the opinion, authored by Justice Ruth Bader Ginsburg, reaffirms prior case law holding that the fact a professional solicitor garners a high percentage of the donations is not sufficient grounds to conclude that consumer fraud has occurred.
The case, (Madigan v. Telemarketing Associates, Inc., No. 01-1806), involves the efforts of the Illinois Attorney General to sue the firm for fraud. Telemarketing Associates contracted with a non-profit military veterans’ group, Vietnow, to raise funds. The fundraising company was to receive 80 percent of the gross receipts it obtained on behalf of the charity. Through telephone solicitations the company raised about $7.1 million, keeping just over $6 million. The Illinois Attorney General sued the firm for fraud and breach of fiduciary duty on the grounds that its fee was excessive and not justified by expenses. Employees of the firm were also alleged to have lied to prospective donors by telling them that over 90 percent of the contributions would go to help Vietnam War veterans. Illinois courts dismissed the case on the grounds that prior Supreme Court decisions held that efforts to regulate solicitors constituted an unconstitutional prior restraint on free speech protected by the First Amendment.
Justice Ginsburg noted that high fundraising costs and failure to volunteer the fundraiser’s fee when contacting a potential donor are insufficient to establish fraud. However, “the First Amendment leaves room for a fraud claim” when deceptive statements are made that are designed to intentionally mislead the would-be donor. Further, the state must establish its fraud case by “clear and convincing evidence,” a standard of proof much higher than the normal civil suit requirement of preponderance of evidence.
Many public safety labor organizations contract with for-profit companies
to raise funds for association activities. Critics accuse these solicitors,
who often conduct their business over the telephone, of falsely telling potential
donors how contributions will be used. Additionally, solicitors often
keep a very high percentage of the funds received, leaving the labor group
with only a few cents out of each dollar raised in its name. Several
states have attempted to regulate such solicitations through registration
and disclosure requirements. Justice Ginsburg’s opinion implicitly
approves such efforts but notes that the Supreme Court has previously ruled
that legislative attempts to cap the percentage of funds that can be retained
by a professional fundraiser conflict with the First Amendment and are thereby
unconstitutional.
The Madigan decision does not touch upon the fraud liability, if any, of
the not-for-profit organization that hires unscrupulous fundraisers.
In a blow to public safety unions, the California Supreme Court has struck down the state’s binding arbitration statute. The opinion issued April 21 said the law, which required binding arbitration in cases of impasse in negotiations, conflicted with two provisions of the California Constitution. The decision has no effect outside the state or on other meet-and-confer requirements in California.
The legislation, known as SB 402, imposed a mandatory system of binding arbitration on cities and counties that were unable to reach accord with public safety employee associations on wage and benefit disputes. The bill was passed and signed by the governor in 2000 over the strong objections of many municipal officials.
The case decided by the court originated in Riverside County in 2001, when the deputy sheriff’s union invoked SB 402 to resolve a disagreement with county officials on wage and benefit issues. The county’s argument that SB 402 was unconstitutional prevailed with the court of appeals. All parties to the lawsuit reportedly endorsed review by the state Supreme Court in order to obtain a definitive ruling on the law.
Associate Justice Ming W. Chin, writing for a unanimous court, pointed out that the California Legislature holds broad lawmaking authority, except where specifically limited by the state constitution. In this instance, one section of the constitution mandates that the governing body of a county “shall provide for the number, compensation, tenure, and appointment of employees.” SB 302 conflicts with this section by placing that responsibility in the hands of arbitrators. While the legislature may regulate labor relations in the state, it may not totally deprive counties of authority to set salaries, Justice Chin said.
SB 302 also violates a constitutional provision prohibiting the legislature from delegating to a “private person or body” the power to interfere with a county’s or municipality’s money. This conflict would appear to make the ruling applicable to California cities as well.
The court turned back the union’s argument that all aspects of public safety labor relations were a matter of statewide concern subject to the legislature’s control. In rejecting this view, Justice Chin found it persuasive that the legislature had imposed on local governments binding arbitration in case of impasse but had specifically exempted the state.
The ruling does not directly affect 22 locally enacted ordinances providing for binding arbitration. Justices also left open the question of whether a county can submit to binding arbitration voluntarily.
Labor groups, such as the Peace Officers Research Association of California
(PORAC), the International Association of Fire Fighters, AFL-CIO, and various
local police officer and deputy sheriff unions, had filed friend of the court
briefs in the matter.
Union discipline is not a concept often utilized in police unions but some members of the Boston Police Patrolmen’s Association (BPPA) may soon learn its meaning. In a recent letter to its members BPPA leadership warned that officers who refuse to participate in picketing of mayoral appearances could face loss of union-provided benefits.
According to the Boston Globe newspaper, officers were told they would be required to spend five to seven hours of their own time every month on picket lines designed to pressure Mayor Thomas Menino into agreeing to a new labor contract. Officers who do not participate will face a disciplinary hearing before the union executive board. If an officer lacks a valid excuse for not participating in the program, the officer could lose life insurance, dental insurance, and voting rights for one year.
BPPA President Thomas Nee said the sanctions were legal and appropriate. “Our phones are flooded with officers wanting to participate, but it’s for conformity. Everyone [who does not participate] will be afforded the opportunity to defend themselves,” Nee said. “It’s just for those that blatantly won’t be there.”
The union’s termination of insurance and other benefits would apparently be lawful. Alan Shapiro, a lawyer for the BPPA, says benefits are available only to members in good standing and failing to picket without a good excuse would mean the member was not in good standing. Officials at the Massachusetts Labor Commission and the U.S. Department of Labor agreed. Labor officials noted that since the benefits are offered internally by the union, their availability to members falls within the union’s discretion.
The 1,400-member union has been working without a contract since July 2002. The union has engaged in picketing and leafleting in an effort to force the city to agree to a new labor pact.
The picketing apparently is causing the mayor’s nerves to fray. At a speaking engagement in Washington in early May, about a dozen Boston officers showed up to picket and hand out leaflets. The mayor told his audience, “I’m laying off 1,700 people and they’re asking for a raise. How can I negotiate a new contract? I just don’t have it. Some of the unions I’m dealing with recently, I don’t understand where they’re coming from.”
During negotiations, the city has maintained it lacks sufficient funds
for a raise while the union argues Boston has ample reserve funds.
In 2001, Boston fire fighters negotiated a 22 percent raise over four years.
The BPPA reportedly is looking for similar consideration.
Justices voted not to consider Joseph v. Salt Lake City Civil Service Commission, No. 02-1211. The inaction leaves in place a lower court determination that a terminated police officer's due process rights were not violated when the city attorney served both as prosecutor and advisor to the civil service commission during the officer's appeal.
Also rejected for consideration was Arndt v. Koby, No. 02-1313, wherein a detective has been unsuccessful in her First Amendment claim against the chief of police during the JonBenet Ramsey murder investigation. Lower courts ruled that the detective's rights were not violated when the chief issued a gag order prohibiting responding to media criticism of the investigation. Detective has failed to convince courts that she possessed a First Amendment right to defend her professional reputation.
Two items of interest are seeking high court review this month. In Elder v. City of Houston, Texas, No. 02-1408, the justices are being asked to review a lower court ruling that approved a consent decree granting remedial promotions to over 100 African-American and Hispanic officers. The promotions, which took place over a five-year period, were ordered after a decade's worth of promotion tests were found to have adverse impact and not be job-related.
In Pappas v. Bloomberg, No. 02-1441, a former New York City police officer is challenging his dismissal from the force for anonymously distributing racist and anti-Semitic materials. Lower courts held that the termination did not violate Pappas' First Amendment rights because the department's interest in maintaining community harmony outweighed the officer's interest in expressing his personal views.
The court will likely make review decisions before its term ends next
month.
Baron worked as a county correctional officer. One day, he observed a supervisor playing cards with a group of inmates in clear violation of department policy. Peeved at the supervisor’s laziness, another supervisor instructed Baron to report the matter, which he did, ableit reluctantly, because he knew the likely consequences of breaking the “code of silence” concerning another officer’s misconduct. The card-playing supervisor received a three-day suspension as a result of Baron’s report.
Baron’s coworkers allegedly began to harass him on a daily basis after learning that he had filed the report. One coworker in particular, Hickey, allegedly referred to Baron as a “rat” and threw cheese onto Baron’s plate in the cafeteria. Hickey also tried prodding Baron into a fight by saying he was a “low-down, Jewish rat bastard coward.” Several other instances occurred where Hickey referred to Barron as a “rat fink” and a “rat coward.” Baron was subjected to other forms of harassment, including defamatory and threatening posters taped to his locker, threatening phone calls, spreading of feces on his automobile, and the slashing of his tires. Superior officers often observed some of this harassment but did nothing to halt it. Subsequently, Baron transferred shifts, but the harassment continued.
Baron verbally complained of the harassment on 30 occasions and in writing submitted 20 different complaints to his supervisor. The department’s response was relatively tepid and consisted largely of telling the other officers to cease the harassment. Subsequently, Baron himself began getting into trouble and was suspended on two different occasions.
Ultimately, Baron resigned from the department due to the unremitting harassment. He filed suit against the county and the sheriff alleging that the harassment caused his constructive discharge in violation of his First Amendment rights. County and sheriff move for summary judgment.
HELD: To prevail upon a constitutional claim, Baron must show that he was constructively discharged in retaliation for his exercise of First Amendment rights, or that he was deprived of his property interest in his job in violation of the due process clause due to a hostile work environment based on his religion.
The First Amendment claim is examined under the well-known balancing test. Here, a public employee must establish that he spoke out on a matter of public concern and his interest in speaking on such matter outweighed the employer’s interest in maintaining the efficiency of the public service.
The question here is whether the report of the supervisor’s misconduct is of inherent interest to the public. It seems to the court that the minimum level of employee wrongdoing, playing cards with an inmate, does not rise to the level of a breach of public trust sufficient to be viewed as a matter of public concern.
Of greater concern, however, is the alleged supervisory tolerance of a pattern of escalating coworker harassment against an officer for reporting infractions by a coworker. It is apparent that the issue of whether a corrections officer is willing to “walk the blue line” to report wrongdoing within prison walls is a matter of great interest to the community and the courts. Officers must be able to speak out freely about misconduct without the pressure of a “code of silence” or fear of extreme retaliatory harassment sufficient to force resignation. In this case, the community had in fact a legitimate concern as to the internal workings of the sheriff’s department because various officers had been indicted recently and allegations of inmate abuse and mismanagement had received considerable newspaper play. In fact, a special commission was appointed by the governor to investigate the allegations of misconduct.
Baron cannot pursue his due process claim if he voluntarily resigned. Employee resignations are presumed to be voluntary, but when an employee suggests otherwise, the court must examine the surrounding circumstances to test the ability of the employee to exercise free choice. Baron alleges constructive discharge by reasons of working conditions rendered so intolerable as to remove any choice about whether to remain on the job. There are sufficient disputed facts in this case that a jury could indeed find that Baron’s resignation was not voluntary. This issue must be allowed to go to the jury. The single isolated anti-Semitic comment is insufficient to support a claim of a hostile work environment based on religion, however.
Both the sheriff and the county were sued in this matter. For the county to be liable under federal civil rights law, it must be shown that the county condoned an unconstitutional custom or unofficial policy that resulted in denial of Baron’s civil rights. Baron’s allegations of constructive discharge as a result of official policy or custom must be based on evidence that the practice was so widespread that county officials either actually or constructively knew of the behavior and did nothing to end the practice.
Once again, the facts are in dispute concerning the existence of an unofficial policy sanctioning employee harassment. While the county denied the existence of a “code of silence,” a senior sheriff’s department official did acknowledge that a “code of silence” existed in the jail system. The gubernatorial report also lends weight to the existence of such an unofficial policy. Once again, because of factual dispute, the summary judgment on this claim against the county is denied.
Finally, the sheriff alleges qualified immunity from personal liability. Qualified immunity shields governmental officials performing discretionary functions from civil liability insofar as their conduct does not violate clearly established constitutional rights of which a reasonable person would have known. Baron alleges the sheriff failed to supervise and discipline officers for misconduct. Such deliberate indifference or willful blindness to an unconstitutional custom or practice can, indeed, lead to civil liability. However, most of the alleged harassing behavior occurred early in the sheriff’s first term of office. The evidence suggests that the sheriff took a laissez faire management style and did not work directly with the jail. He had little experience in the field. There is no evidence he actually knew about the retaliatory harassment by other employees. The sheriff’s hands-off management style does not give rise to a level of deliberate indifference sufficient for him to be held civilly liable. Sheriff’s motion for summary judgment on the ground of qualified immunity is allowed. Matter to proceed to trial on other issues against the county. [Baron v. Hickey, 242 F. Supp.2d 66 (D. Mass. 2003)]
For a three-year period, Vanderpool was employed as city marshal. He was required to have an extra telephone in his home to receive fire calls and claimed that he was required to be on call 24 hours a day, seven days a week. As a result, he subsequently alleged that the time he spent at home was compensable due to the restrictions placed on him.
He filed a federal Fair Labor Standards Act (FLSA) claim for over $25,000 in overtime and $94,000 in on-call time. Federal court dismissed the FLSA claim on the grounds that the overtime provision of the law specifically exempts agencies that employ less than five law employment personnel. At the time Vanderpool served as marshal, the city employed fewer than five officers.
Vanderpool’s overtime claim under state law was forwarded to a state trial court. There, the city filed a motion for summary judgment on the grounds that under the city ordinance, Vanderpool was head of the police department and not entitled to receive overtime pay. Trial court granted the city’s motion and former city marshal appeals.
HELD: In construing a city ordinance, the court applies the same rules of construction applied to statutes. The first rule is to construe the statute as it reads, giving the words their ordinary and usually accepted meaning in common language. A statute must be construed so that no word is left void or superfluous and in such a way that meaning and effect are given to every word therein. If the language of the statute is clear and unambiguous, there is no reason to resort to rules of interpretation. If, however, the meaning of the statute is not clear, the court looks to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject.
Here, the city ordinance regarding overtime specifically states that department heads are not entitled to overtime. A second section of the city ordinance reads that the marshal shall be the head of the police department. These sections plainly and unmistakably show that Vanderpool as city marshal was not entitled to overtime. Vanderpool argues, however, that for all intents and purposes he did not run the police department; the mayor ran the department. This argument is misplaced, however, because under the city ordinance Vanderpool was clearly classified as the department head. He thus was not entitled to overtime.
It is also of no significance that Vanderpool maintained the separate telephone line in his house in order to receive fire department calls. Evidence reflects that Vanderpool’s duties were those of a law enforcement officer, not a fire fighter. His duties, even as they related to the separate phone line, were that of police officer. In summary, the city ordinances plainly demonstrate that the city marshal is not entitled to overtime pay. Dismissal of case affirmed. [Vanderpool v. Pace, 97 S.W.3d 404 (Ark. 2003)]
James and Porter were police officers who became the objects of internal affairs investigations on unrelated claims of misconduct. In James’ case, he allegedly opened a box of materials not addressed to him and removed property from the locked office of a fellow employee. Porter allegedly submitted a request for overtime pay without prior authorization for the work as required by department policy.
In both instances, the chief of police placed a memorandum in their personnel files. The memorandum essentially stated that there was evidence to support disciplinary action but that the memorandum was being filed instead. The memo further said that the matter would become part of the next evaluation of the officer. The two officers requested administrative appeals to challenge the memorandum. The department denied the request and the officers filed suit under the California Public Safety Officers Procedural Bill of Rights Act (PBRA).
Trial court ordered the department to provide a hearing before a neutral fact-finder, but ruled that the officers were not entitled to confront and cross-examine witnesses. The trial court found that there was no need for a “full-blown trial” because the issue in question did not rise to that level of seriousness. Officers appeal on the question of scope of the hearing.
HELD: The PBRA provides a catalogue of basic rights and protections afforded all peace officers. The statute provides that no punitive action shall be undertaken against a public safety officer without an opportunity for an administrative appeal. Case law holds that the statute does not require a showing that an adverse employee consequence has occurred or is likely to occur. Rather, punitive action sufficient to trigger appeal rights may exist when action is taken which might lead to an adverse consequence at some future time. The statute further provides, however, that the details of administrative appeals, if not established by agency rules, must be measured according to constitutional due process principles.
In this case, the police department does not challenge the trial court’s finding that James and Porter are entitled to an evidentiary hearing. Rather, the parties disagree on whether due process requires the hearing include the right to confront and cross-examine witnesses.
Prior case law provides little guidance on this question. Although the court recognizes the value of cross-examinations as a means of uncovering the truth, not every administrative appeal under the PBRA necessarily affords that opportunity. Rather, due process is a flexible concept that is to tailor the process to the need. Not every situation requires a formal hearing or the full rights of a trial.
The court concludes that the two officers are not entitled to confront
and cross-examine the witnesses during the hearing. While they are
permanent employees, they have suffered no demotion, transfer, pay reduction,
or other adverse consequence. They concede that the placement of the
memorandum in their file is the lowest level of discipline the department
can impose. The department has made no binding determination affecting
the legal rights of the officers and, therefore, the full array of administrative
procedures is not required under California law. Affirmed for city.
[James v. City of Coronado, 131 Cal. Rptr.2d 85 (Cal. Ct. App. 2003)]
When he was 19-years-old, Louviere was hired by the city police department after completing a civil service test, background test, physical and psychological examinations. He served on the force for three years. During that time, he received satisfactory performance evaluations. However, he was also the object of an excessive force complaint and subsequent civil suit that was settled out of court. When he resigned from the police department, the chief of police wrote a generic reference letter that summarized his satisfactory performance evaluations and stated that Louviere would be an asset as an employee. Nothing in the letter was misleading or untrue.
After leaving the police department, Louviere worked for a short period of time for a flooring company. He then applied for and was hired as a deputy sheriff. After less than a year as a deputy, Louviere began to have marital troubles. He and his spouse subsequently separated.
One day, while on duty and driving a sheriff’s department vehicle, Louviere pulled over an unsuspecting female motorist. He overpowered her and forced her to commit various sexual acts. Louviere released the woman who immediately went home and alerted the sheriff’s department. The dispatcher contacted Louviere over the radio and ordered him to meet another officer at a designated location, but Louviere ignored the order. Instead, he drove to a bank where his estranged wife was working. At the bank, he held six female employees, including his wife, hostage. He subsequently shot and killed one bank employee and committed various sexual crimes on others. The hostage situation lasted for over a day before Louviere surrendered.
Various victims and their families filed suit against Louviere, his former employer (the city police department), and the county sheriff’s department. Trial court ultimately awarded judgments against Louviere, the sheriff’s department, and his former employer, the city police department. Defendants appeal.
HELD: The city, through its police department, was alleged to have engaged in negligent hiring, training, retention, and referral of Louviere. The plaintiffs claim that if the city had disclosed certain information to the sheriff’s department, the sheriff’s department would not have hired Louviere and Louviere would not have committed the crimes that resulted in injuries to the plaintiffs.
A review of Louisiana law, however, finds only two cases in which a claim of negligent referral was made. In both cases, it was determined no negligent referral existed. Since no Louisiana case was found that set forth a set of facts to constitute negligent referral, a logical argument can be made that Louisiana law does not recognize such a cause of action. Louisiana law imposes no affirmative duty on a former employer to divulge employment information to a subsequent employer. In fact, an employer risks a defamation suit if he erroneously provides information regarding a past employee.
The plaintiffs, however, claim that the generic reference letter, as well as a psychological report about Louviere, should have been revealed to the sheriff’s department.
The evidence shows, however, that the reference letter contained no inaccurate or misleading information. Additionally, Louviere underwent a second psychological exam prior to being hired by the sheriff’s department. The original information he provided the city police department noted that he had been sexually molested as a child and had been confined at one time in a hospital for psychological treatment. The sheriff testified that he would not have hired Louviere had he known this information. However, the very same information essentially appeared in sheriff’s department files because the sheriff’s department responded to the initial incident of sexual molestation in which Louviere was the victim.
There was simply no negligence on the part of the city in this case. Even if the case met the legal criteria of negligent referral, no ease of association exists between the favorable recommendation given by the police department to the sheriff’s department and Louviere’s later crime spree. The record is clear that Louviere’s problems began when he separated from his wife during his employment with the sheriff’s department and that the violence toward his wife began at that time. The city could not have reasonably anticipated that Louviere would have engaged in subsequent unlawful behavior. Reversed for city, but a modified judgment affirmed as to other defendants. [Louviere v. Louviere, 839 So.2d 57 (La. Ct. App. 2002)]
While directing traffic at a local event, Esposito observed a vehicle speeding toward him at approximately 45 miles per hour. The officer had to jump out of the way to avoid being hit. Consequently, he sustained an injury to his leg that required surgery.
The leg was reinjured a few years later, apparently due to its weakened condition from the earlier incident. More surgery was required. Ultimately, Esposito applied for accidental disability retirement benefits. Following a hearing, the retirement system board denied accidental disability benefits and awarded only ordinary benefits. Retired officer appeals.
HELD: Under New Jersey law, to qualify for accidental disability retirement benefits, an individual must prove that he is permanently and totally disabled, that his disability is a direct result of a traumatic event, and that the traumatic event occurred during and as a result of his regular duties.
The pension board in this case concluded that Esposito’s injuries were not the result of a traumatic event. The courts of the state have developed a standard for determining whether or not an injury is the result of a traumatic event. The injury must not have been induced by the stress and strain of normal work, the employee must have involuntarily met with an object that was the source of harm, and the source of the injury itself must have been a great rush of force or uncontrollable power.
As to the first requirement, while being struck by a car may be an occupational hazard of a police officer, it is not part of the normal work effort. A driver failing to yield to a traffic officer’s command is not a commonplace risk assumed by an officer. Likewise, the concept of involuntarily meeting with an object is to be construed in a reasonable fashion. While the officer certainly intentionally jumped out of the way, he did not do so voluntarily, but rather to avoid being struck by the car. The court certainly does not want to discourage a police officer from jumping out of the way of a speeding vehicle. The chain of events that caused the officer to jump was set in motion by the driver of the vehicle, not the officer himself. As to the third prong, prior case law holds that coming in contact with the ground is not a traumatic event for the purposes of the disability pension law. However, if such a fall is unusual or from a higher than normal height, it does meet the criteria.
Here, the officer apparently was struck by a vehicle and suffered injury by striking the ground. This incident falls within the scope of the concept of a traumatic event and the officer qualifies for accident disability benefits. Reversed for injured police officer. [Esposito v. Police and Fireman’s Retirement System, 817 A.2d 340 (N.J. Super. Ct. App. Div. 2003)]
Waldron was a police sergeant whose replacement arrived a few minutes before his shift officially ended. Waldron briefed his replacement on the prior night’s events and went to his locker. While still in uniform, he retrieved his personal firearm from his locker. The firearm unexpectedly discharged injuring Waldron. The event occurred approximately five minutes after the end of his shift while Waldron was awaiting information to complete a report.
He filed a claim for accidental disability retirement benefits. The retirement board rejected the claim, finding that the incident did not occur during the course of Waldron’s job duties. Officer appeals.
HELD: Prior New York case law has upheld the denial of disability retirement benefits to individuals who were injured either before or after their work shifts or while on break, on the basis that they were not in service at the time of such event.
Here, the officer indicated he was retrieving the firearm for the purpose of taking it with him on a personal trip. It is undisputed that the incident occurred after the end of the officer’s shift. Because the act of retrieving the weapon was for purely personal reasons and the incident occurred after the officer’s tour of duty, substantial evidence supports the pension board’s finding that Waldron was not in service at the time that he was injured. The fact that the officer may have been waiting for information to complete a report does not change that conclusion because there is no evidence that the completion of the report was a mandatory act which had to be done before he was allowed to depart the workplace. Denial of benefit affirmed. [Waldron v. McCall, 755 N.Y.S.2d 479 (N.Y. App. Div. 2003)]
Under Texas law, a police officer or fire fighter in a city that has adopted civil service may appeal a disciplinary suspension either to the local civil service commission or to a hearing examiner. If the officer chooses the civil service commission, the officer may appeal that body’s determination to a trial court. However, if the officer chooses to use a hearing examiner, the examiner’s decision is final with no right of appeal unless the examiner exceeded his authority or if there was fraud or other unlawful means involved.
Byrd was indefinitely suspended by the chief of police for violating department rules. He chose to appeal his suspension to a hearing examiner. Under state law, the city and the officer selected the examiner by alternately striking names off a list of suggested examiners until only one was left.
In this case, however, the city refused to participate in the hearing and instead filed suit seeking a court order declaring the hearing examiner option contrary to the Texas Constitution. Specifically, the city argued that the statute creating the hearing examiner constituted an impermissible delegation of legislative power to a private party contrary to Texas Constitution. Trial court ruled that the law was constitutional and city appeals.
HELD: The Texas Constitution vests the state’s legislative power in the state Senate and House of Representatives. Thus, the city claims that the hearing examiner law violates this provision. The police officer, on the other hand, contends that the hearing examiner is more judicial in nature than legislative, and, therefore, the provision of the constitution does not apply.
A look at the civil service statute reveals that the legislature has delegated to municipalities and their civil service commission the authority to proscribe rules for the removal and suspension of police officers and fire fighters. The law further grants the commission the authority to determine whether or not such rules have been violated. This finding is reached as the result of a hearing. Legislature has also provided that a police officer may choose to have the matter resolved by the private hearing examiner who, by statute, steps into the shoes of the civil service commission with the same power. It appears that the power delegated to the civil service commission, and as a consequence to the private hearing examiner, is in fact more legislative than judicial.
Prior Texas law sets forth a series of factors to determine whether the delegation of legislative power is constitutional. Among the factors is whether the delegation is subject to meaningful review by another branch of government, whether the delegation is limited to making rules, whether the delegation is narrow in scope, and whether there are sufficient standards to guide the private delegate in his work. Here, the statute easily tips in favor of constitutional delegation. The hearing examiner’s decisions are reviewable in court for any abuse of power. Additionally, while the affected officer can only appeal a civil service commission ruling, both parties can seek judicial review of the improper use of authority by the hearing examiner. Legislation also provides guidelines for the hearing examiner by requiring the hearing be conducted fairly and impartially and the decisions to be just and fair and based solely on the evidence. There are also other procedural safeguards set forth by statute. Thus, the delegation of authority to the civil service commission and/or the hearing examiner to review police and fire discipline is sufficiently limited and guided by legislation to pass constitutional muster. State statute providing for hearing examiners on disciplinary appeals is constitutional. [City of Garland v. Byrd, 97 S.W.3d 601 (Tex. App. 2002)]
Van Sickle was a deputy sheriff who was injured on the job. He was unable to return to work for three years. The county, however, continued to pay him full salary and benefits as required by Texas law. As the end of the sheriff’s term approached, Van Sickle was told that his salary would cease with the expiration of the sheriff’s term. He was further apprised that until he could return to work he would not be resworn as deputy. When the sheriff’s term expired and his new term began, Van Sickle’s pay was stopped. The injured deputy filed suit claiming that his position was protected under county civil service rules. Trial court agreed and ordered both back pay and a continuation of payment of salary until Van Sickle retired. County appeals.
HELD: The county argues that the Texas Constitution prohibits salary payments to deputy sheriffs past the term of the sheriff who hired them. Van Sickle argues, however, that deputies have no definite term of office and that his tenure lasts as long as the sheriff pleases. Additionally, Van Sickle claims that he is protected by civil service rules and has a property interest in employment that cannot be deprived without due process of law.
The Texas Constitution provides that payments of various public officials,
including deputy sheriffs, shall cease on the expiration of the term of office
to which they were appointed. It is long-established Texas law that
a deputy sheriff’s term expires when the sheriff’s term expires. Thus,
absent a formal rehiring of the deputy at the beginning of the sheriff’s
next term, the county is prohibited from paying salary to a deputy hired
during the previous term once the new term begins. In fact, it is commonplace
throughout the state for sheriff’s deputies to be formally sworn in on the
first day of a reelected sheriff’s new term.
Given that the sheriff’s first term ended and Van Sickle was not deputized,
his position with the sheriff’s department ended as well. Likewise,
the mere existence of civil service rules and procedures for terminating
deputies does not create a due process right for Van Sickle. Prior
law holds that the mere existence of procedural rights for an employee does
not mean the employee has a property interest in the job. In other
words, the existence of procedures does not vest an employee with entitlement
to public employment. There is no evidence in the record that the civil
service rules require deputies only be terminated for cause. Lacking
this explicit property interest, Van Sickle was not entitled to a hearing
prior to being terminated. Trial court erred in awarding back pay and
front pay to Van Sickle because his term of office ended when the sheriff’s
term ended. County has no further obligation to the former deputy.
Reversed for county. [Tarrant County v. Van Sickle, 98 S.W.3d 358 (Tex.
App. 2003)]
police officers
Members of New City Lodge 48 of the Fraternal Order of Police have inked a new contract with Fairborn city officials. The pact provides 3.5 percent pay hikes for 2002 and 2003 and a three percent boost in 2004. Additionally, life insurance was upped to $50,000 per employee while disciplinary oral and written reprimands will be in force for a maximum of one year instead of the previous two.
police officers
Fairfax County Board of Supervisors has adopted a budget accepting a union proposal to save more than $7 million over the next four years. Public safety unions offered to take only a 2.1 percent cost-of-living wage hike, one-half a percent less than originally scheduled, in an effort to keep the county finances in order. Personnel will continue to be eligible for merit increases. The Fairfax Coalition of Police, the Fairfax County Deputy Sheriffs Coalition, and Local 2068 of the International Association of Fire Fighters, AFL-CIO, put together the proposal to assist the county in balancing its budget. The Board of Supervisors has agreed to conduct a wage survey to determine how well its employees fare within the region.
police officers
The 16 members of Local 205 of the International Brotherhood of Teamsters
will receive a three percent pay raise in each year of the contract and
a $400 uniform allowance under the new pact with the Borough of Homestead.
The labor accord continues the requirement that officers reside within a
five-minute drive of Homestead.
