Concern over the safety of the primary police patrol vehicle in the country just won't go away. The nation's attorneys general have formed a task force to investigate the crash safety of Ford Crown Victoria Police Interceptors and a U.S. Senator is calling for a comprehensive federal inquiry into the vehicle's accident record.
The National Association of Attorneys General (NAAG) took the action June 13 at their national meeting in Oklahoma City. No details have yet emerged on the form and scope the NAAG inquiry will take. Only a few weeks earlier, U.S. Senator Charles Schumer (Dem.-N.Y.) called on the federal government to open a new investigation into the safety of the popular police cruisers. Senator Schumer's request came after a Missouri state trooper was killed in a fiery crash in mid-May while stopped on the side of an Interstate highway. Since 1983, at least 15 officers are believed to have died in crashes involving the vehicle's gas tank igniting after being struck in the rear.
Ford Motor Company, which manufactures the car in its St. Thomas, Ontario, plant, has denied that the vehicle is dangerous but has initiated a program to retrofit older models with protective shields.
"This is a no-brainer. No one should have to explain how important it is to make sure our police officers have cars that are safe. We know that there's a problem, and now we need to figure out what we need to do to solve it," Schumer said. "If that means changing cars so that a different model is used, so be it. Time is of the essence."
In a May 28 letter to Dr. Jeffrey Runge, Administrator of the National Highway Traffic
Safety Administration (NHTSA), Schumer noted,
"There have been more people killed in Crown Victoria
fires than were killed in the notorious Ford Pinto fires
over twenty years ago." He asked Runge to open
a "comprehensive investigation into possible
structural
defects that cause the Ford Crown Victoria to
explode upon rear-end impact despite recent safety upgrades."
To date, no reply from the NHTSA director has
been released.
NHTSA conducted a study of the issue in 2002 and reported that Crown Victoria explosion rate after rear-end collisions was only slightly higher than those for the Chevrolet Caprice. The Ford Motor Company subsequently offered a new bolting system and now safety shields to protect the gas tank.
Because of safety concerns, the State of Florida had placed a moratorium on purchasing this model of Ford. The ban was lifted recently as the Florida Highway Patrol began putting Kevlar™ reinforced high-density polyethylene (HDPE) safety shields in the trunks of its 1,750 cars, reportedly becoming the first law enforcement agency to implement the device. The drop-in containers, which are essentially a hard plastic tub, are the second suggested retrofit for the vehicles in the last year. The item, which looks like a trunk organizer, is intended to provide an extra barrier to prevent items from being propelled from the trunk to the gas tank and to force officers to arrange trunk items so they are less likely to cause a puncture in a collision.
Ford has denied the vehicles are inherently unsafe but suggested that departments install the plastic drop-in containers and that officers not unduly expose the rear of the vehicle during traffic stops.
Ford also has its defenders who argue that since the Crown Vic is the overwhelmingly
dominant police vehicle on the roadways, most police
crashes will involve that model automobile; hence, the
crash data becomes skewed. It has also been pointed
out
that the platform on which the vehicles are
constructed has been unchanged for 25 years, yet the reported incidents of fire are up only since
the late 1990s.
Ford, which announced it would cooperate with the NAAG inquiry, states its case on its special website, www.cvpi.com.
About 350,000 Crown Victoria models are believed to be currently in use. Likely 85 percent of American police agencies own at least one of the vehicles. Similar versions of the Crown Victoria are widely used by other governmental units and in fleet service, such as taxicabs.
The increasing popularity of body tattoos is beginning to raise issues in the police service. Recently, five Hartford, Connecticut, police officers sued their chief, accusing him of violating their constitutional right to free expression for selectively enforcing the department's dress code. Chief Bruce Marquis ordered the officers, who are white, to cover-up spider web tattoos that a black detective found offensive.
The complaining detective did not accuse his fellow officers of being racist but told the chief that the spider web is an offensive symbol used by white supremacist groups. After consulting with legal counsel, Marquis ordered the body art covered.
Jon Schoenhorn, the attorney for the officers, claims in the federal lawsuit that the
department's dress code is unconstitutionally vague when it
grants the chief of police the discretion to ban tattoos
that are "offensive, immoral, or presenting
an
unprofessional appearance." Schoenhorn
suggested that the chief might have been on more firm
legal grounds had he banned all tattoos. According to
the attorney, at least 50 Hartford officers have
visible tattoos but only the spider webs have been
ordered covered with long sleeved shirts.
Three of the plaintiffs have had the spider web tattoos for many years while two officers only recently got them to protest the chief's ban.
An official of the Hartford Police Union suggested the chief was acting on orders from city hall. The city manager subsequently confirmed that the mayor and some council members had expressed concern over the spider web tattoos.
"It was never an issue for years. Why is it an issue now? Is it all because of Keith's letter?" asked union president Mike Wood, referring to the detective's complaint.
No court date has been set for the suit.
The ink was barely dry on the Supreme Court opinion when the federal government instituted
legal proceedings against a group of telephone
solicitors, some of whom have worked for public safety groups.
In early May the high court unanimously ruled
that telephone solicitors for charities could be
prosecuted for fraud if they deliberately misrepresented
how much money goes to the charity. [See, Police
Labor Monthly, June 2003] A few days later the
Federal Trade Commission (FTC), in conjunction with
34 states, filed lawsuits against a half-dozen
telemarketing firms alleging fraudulent conduct. Among the defendants are groups that have
collected money in the name of police and fire
fighter organizations.
In its filing against Community Affairs, Inc., of Pompano Beach, Florida, the FTC alleges that company employees falsely claimed to be police officers or fire fighters and that all of the funds would go to the particular charity. In fact, between 75 and 90 percent of the funds raised went to the solicitor. The company allegedly raised $28 million from January 2000 to September 2002. Among Community Affairs' clients were the Texas Fraternal Order of Police and the Virginia Firefighters Foundation. No allegations of misconduct have been made against either of these two organizations.
Similarly, in another suit, the FTC alleges that Houston, Texas-based Clinton Greenwell defrauded businesses by posing as a member of a police force or police organization and charging the businesses for advertising in his public safety magazines, advertisements they did not order. Greenwell allegedly published a series of ad-heavy magazines titled The Police Bulletin, State Police Magazine, State Police Officers Yearbook, and Firefighters News Journal.
In each of the suits the FTC is asking that the solicitors be enjoined from continuing their allegedly fraudulent activities. A public education campaign, "Operation Phoney Philanthropy," is also part of the FTC strategy. The FTC has given no indication that it will examine the broader issues of charitable telemarketing, such as the percentage of funds retained by the charity. The current lawsuits focus only on purposely deceitful fundraising efforts.
Legal doctrine that requires a reviewing court to uphold an administrative agency's decision (e.g., civil service commission disciplinary action) if decision is supported by "substantial evidence." Substantial evidence is generally defined as evidence that a reasonable mind might accept as adequate to support a conclusion. Court will not substitute its opinion for that of the administrative agency if any credible evidence exists to support the agency's decision.
As the high court nears its summer recess it decided not to review several
matters of interest. The justices declined to consider City of New York, New
York v. Patrolmen’s Benevolent Association of the City of New York, No.
02-1321. The inaction leaves in place a lower court finding that the police
department failed to justify the race-based transfer of a group of black officers
to calm uproar against the NYPD in a minority neighborhood. Reassigning the
officers based on their race was not shown to be the most reasonable response
to the neighborhood unrest.
Justices also rejected review of the Houston Police Department’s promotion
system in Elder v. City of Houston, No. 02-1408. This leaves in place a series
of court-ordered race-based remedial promotions.
In Oklahoma County, Oklahoma v. Sherwood, No. 02-1058, the court dismissed
the appeal at the request of the parties. Case concerned whether a deputy sheriff
who suffered medical problems from supervising a paint spray booth could use
42 U.S. Code §1983 as a basis for his claim. An appeals court ruled for
the deputy. With the dismissal, that ruling apparently remains intact.
Awaiting review decisions are the cases of Booker v. City of St. Louis, Missouri, No. 02-1511, and Johnson v. Buffalo, New York, Police Department, No. 02-1573. The Booker case raises the question of whether the Fourth Amendment is violated during a public employee urine screening if a member of the opposite sex monitors the production of the sample. In this matter, a female employee of a private contractor supervised the production of the sample by a male municipal correctional officer. The officer was in a closed stall at the time. Lower court ruled that the male officer’s rights were not violated by this procedure. In Johnson, a former police officer is representing himself in an effort to overturn his dismissal from the force. Johnson claims the termination was racially based. Lower court dropped the case because the ex-officer failed to comply with the 300-day filing deadline required under federal fair employment law.
In order to draw attention to their demands for a new collective bargaining
agreement, the police officers’ union, along with the fire fighters’
union, conducted an hour-long picket outside of city hall on the eve of the
mayoral inauguration. During the picket, citizens driving private vehicles sounded
their horns in support of the public safety officers. Several off-duty personnel
also participated in the sounding of horns. The picketing ceased as the inauguration
began inside city hall. However, Meaney, a police officer who had had previous
personal conflicts with the mayor, borrowed a relative’s truck and drove
around city hall repeatedly sounding the horn. Individuals at the inauguration
ceremony could hear the horn but later said that it was not disruptive. In the
weeks that followed, several newspaper articles were published concerning the
horn-blowing incident. The mayor stated he considered the blowing of the horn
to be illegal because it was an attempt to disrupt a public meeting while Meaney
was quoted as saying his intent was “to get under the mayor’s skin”
and voice his opinion about the lack of a contract.
Subsequently, the police chief suspended Meaney for two days for disturbing
the peace and insubordination in connection with his protest activities. On
appeal before the civil service commission, Meaney’s suspension was overturned
on the grounds that it was protected First Amendment activity. The officer then
sued the mayor, the chief of police, and the city claiming a violation of his
right to free speech. The trial court ruled for the officer, finding that indeed
the disciplinary action was for speech that was protected under the First Amendment.
The city officials appeal.
HELD: While prior case law holds that public employees have a First Amendment
right to speak on matters of public concern, unduly disruptive speech can constitute
grounds for dismissal. Whether Meaney’s horn-blowing had a sufficient
communicative element to constitute expressive conduct protected by the First
Amendment is a close call. Meaney has consistently emphasized that his intended
effect was to irritate the mayor. He had little to say about the message he
intended the mayor and others to take from his conduct. The horn-blowing was
apparently to communicate the fact that the officer was angry regarding an alleged
personal grudge the mayor held against his family, as well as angry that he
had been denied a request for a leave of absence. Further, the officer supported
the union in what he perceived to be their desire to get under the mayor’s
skin.
However, blasting an air horn is substantially different from more readily
expressive conduct, such as picketing, distributing pamphlets, and the like.
It is doubtful that most of those that heard the horn-blowing would understand
it was a specific message of solidarity that Meaney had with the union, particularly
since the picketing had ceased. Even assuming that the horn-blowing was expressive
conduct, the court, in deciding whether a government employee’s speech
is on a matter of public concern, must defer to the employer’s view of
the facts so long as the view is facially reasonable and drawn in good faith.
Here, following an investigation and hearing, the city’s decisionmakers
concluded that Meaney’s horn-blowing was prompted by his intent to irritate
the mayor due to personal dislike and that it occurred after the picketing had
ended.
These conclusions, which are consistent with Meaney’s own explanation
of his conduct, strongly support the employer’s view. Conduct intended
to express anger at a supervisor normally does not relate to a matter of public
concern. So, too, with conduct intended to express solidarity with another’s
perceived intent to provoke. Such conduct does not provide members of society
information to make informed decisions about government operations or disclose
misconduct. Consequently, such behavior is subject to regulation in the public
employment context. Meaney’s horn-blowing did not relate to a matter of
public concern but rather was largely driven by personal animosity toward the
mayor. Trial court erred in finding it protected by the First Amendment. Reversed
and judgment granted to the mayor and the city on First Amendment claim. [Meaney
v. Dever, 326 F.3d 283 (1st Cir. 2003)]
In 1996, in response to complaints of racial discrimination against blacks in the police department, the police chief directed two high-ranking black officers, a major and a captain, to interview all of the city’s black police officers to determine whether they had experienced race discrimination. He did not direct any white officers be interviewed regarding discrimination against blacks. The chief further ordered the internal affairs supervisor to interview any black officer who perceived discrimination so their complaints could be investigated. All 86 black officers on the department were interviewed and 17 reported incidents of discrimination.
Subsequently, two black officers who had been terminated from the force filed
suit against the city and the police chief. Among their many claims was that
the investigation was an attempt to determine the membership in a group of black
officers that opposed racial discrimination. They argued that interviewing only
black officers denied them equal protection of the law under the 14th Amendment
to the Constitution. Trial court rejected the chief’s motion to dismiss
on grounds of qualified immunity. Trial court found that by interviewing only
black officers a violation of the equal protection clause had occurred because
it created a racial classification that subjected the officers to unequal treatment
without justification. The court also rejected the qualified immunity defense
on the grounds that a reasonable person in the chief’s position would
have known his conduct was unconstitutional. The police chief appeals on the
qualified immunity question.
HELD: Under normal circumstances a governmental decision based on race is subject
to the strict scrutiny test. That is to say, such race-based decisions will
be found to violate the equal protection clause of the Constitution unless the
decision can pass the strict scrutiny of the court. In this case, however, black
and white officers were not similarly situated with respect to the chief’s
inquiry. Allegations of discrimination against black officers existed but not
against white officers. The chief made a completely reasonable classification
that would survive strict scrutiny. His response was narrowly tailored to address
the problem at hand, and while the trial court suggested there were other ways
of handling the matter that did not involve racial classification, none was
suggested. Some parties to the suit argue that all of the officers could have
been interviewed, or that there could have been a survey conducted of all officers,
or that an independent consultant could have been hired to address the issue
of race discrimination. While these methods could have uncovered the information
regarding discrimination, none seems to be a better substitute for what the
chief did.
In any event, the court sees no reason why the police department should not
be able to investigate its own affairs and address its own problems where, as
here, it did so by making narrowly focused inquiries. Even if the chief violated
the equal protection clause of the Constitution, he is still entitled to qualified
immunity. Qualified immunity protects public officials from liability for their
discretionary decisions when the law is not clearly established. The plaintiffs
have identified no case that would have led the chief to conclude that a race-based
classification in conducting interviews of victims of discrimination was somehow
unlawful. A reasonable person in the chief’s position was entitled to
obtain his legal guidance from law books rather than from a crystal ball. Thus,
since any alleged equal protection right that the plaintiffs might have was
not clearly established when the chief directed that only black officers be
interviewed, he is entitled to qualified immunity. Reversed for chief of police.
[Williams v. Hansen, 326 F.3d 569 (4th Cir. 2003)]
The corrections department had in place a dress code and grooming policy that
set forth permissible hairstyles for male and female uniformed personnel. The
policy provided that male haircuts may touch but not extend beyond the collar,
while female haircuts could not extend below the collar either, although hair
could be tied to the top or back of the head. Finally, the rule stated that
only traditional military/law enforcement-type haircuts would be permitted.
Booth, an African-American male, was a uniformed correctional officer assigned
to pretrial detention. His hairstyle did not comply with department regulations
because he wore dreadlocks. He alleged he was a practicing member of the Rastafarian
religion and the wearing of dreadlocks was a sign of his African identity as
well as a religious vow of separation from the wider society. Following a number
of suggestions by his employer that he cut his hair to comply with department
regulations, Booth requested accommodation to wear his hair in accordance with
his religious beliefs. He was denied a religious exemption to the policy. Booth
refused to cut his hair and over time progressive discipline was invoked. Faced
with a choice of complying with the grooming policy or incurring escalating
disciplinary measures, Booth filed suit against his employer claiming that the
application of the grooming policy to him violated his constitutional right
to practice his religion. Further, he claimed that he was being discriminated
against because he was an African-American. Trial court granted summary judgment
for the department and officer appeals.
HELD: The free exercise clause of the First Amendment forbids the adoption
of laws designed to suppress religious beliefs or practices unless justified
by compelling governmental interest and narrowly tailored to meet that interest.
Booth asserts that the department regulations as applied to him violates his
freedom to exercise his religious beliefs. He further claims that his request
was not unreasonable because females are allowed to wear their hair braided
and substantially longer than the dreadlocks he wears and that the grooming
policy has not been enforced against approximately a dozen other similarly situated
employees. Booth points to evidence that a Jewish employee was granted an exemption
to wear a beard and long sideburns and a Sikh employee was allowed to wear a
turban and long beard. The department asserts that the grooming policy passes
constitutional scrutiny because it is facially neutral and rationally related
to the department’s goals of promoting safety, uniformity, discipline,
and esprit de corps among the staff at the facility.
The trial court erred, however, because it ignored Booth’s claim that
this facially neutral policy is being applied to him in a discriminatory manner
because the division has granted religious exemption to others. At a minimum,
Booth presented some evidence that the legitimate secular purposes underlying
the policy had been abandoned in a manner that favors one religion over another
and that the policy, as applied to him, was done so in an unconstitutional manner.
Booth identified over a dozen employees who had allegedly violated the grooming
policy but were not disciplined. Some of them were African-Americans and some
were not. Since Booth’s claim of racial discrimination rests upon the
fact that the followers of Rastafarian religion are predominantly African-American,
he has failed to demonstrate a case of race discrimination. However, given the
alleged differential treatment on religious accommodation, the matter is reversed
for further proceedings. [Booth v. State of Maryland, Dept. of Public Safety
and Correctional Services, 327 F.3d 377 (4th Cir. 2003)]
Myers, a state trooper, and his wife became engaged in a heated argument. Myers
allegedly picked up his service pistol and suggested he could shoot her and
then shoot himself, or she could shoot him and then herself. The argument and
pistol incident came to the attention of Myers’ superiors at the state
police. An investigation was launched and the wife was interviewed about the
incident. She allegedly confirmed that Myers had pointed the pistol at her.
The same day, Myers was working the evening shift. Before going to interview
the wife, the investigating trooper instructed Myers’ sergeant to keep
Myers from making telephone calls to his wife and keep him in the office. When
Myers arrived at the office at the beginning of the shift, the supervisor asked
him to have a seat and remain there until the investigating trooper returned.
The supervisor explained they were conducting an administrative investigation
and would discuss it further with him later.
During that evening, Myers left the office on several occasions to use the
restroom and to speak with dispatchers. He also went to dinner with his supervisor.
After dinner, Myers asked permission to call his wife but the supervisor told
him he had been instructed to keep him from making such a call. Myers asked
if he was under arrest and he was told no. Myers asked what the supervisor would
do if he simply walked out of the office and the supervisor responded he would
not restrain him. Likewise, the supervisor said he would not deny Myers sick
leave if he requested it.
Subsequently, the investigating trooper filed a complaint with a magistrate
who found probable cause to believe that Myers had committed unlawful brandishing
of a firearm. The magistrate issued an arrest warrant but said that the officer
could at his discretion execute it as a summons. An emergency protective order
was also issued. When the investigating officer returned to the office he served
the warrant on Myers by summoning him instead of arresting him. He also served
the protective order. The supervisor then took possession of Myers’ patrol
car and service revolver and suspended him without pay pending completion of
the investigation. Myers admitted to the argument but denied pointing the firearm
at his wife. The next day the protective order was dropped because the wife
backed away from her statement that Myers had pointed the weapon at her.
A few days later Myers’ status was changed from suspension without pay
to paid administrative leave. He ultimately was offered the opportunity to resign
from the force, which he did. Myers was paid all compensation due him except
the leave that he used during the period he was suspended without pay. The department
did not refund that money. Myers filed a civil rights suit against his supervisor
and the investigating trooper. He claimed that his Fourth Amendment right and
due process rights had been violated. Defendants move for summary judgment.
HELD: Myers claims that he was improperly detained at police headquarters in
violation of his Fourth Amendment right against unreasonable search and seizure.
However, the uncontradicted evidence shows that he was never physically restrained
or otherwise seized. He was not under arrest and was told that no effort would
be made to stop him if he chose to leave the office. Likewise, he was told that
he could put in for sick leave and depart. Prior case law holds that nothing
in the Fourth Amendment endows public employees with greater workplace rights
than those enjoyed by their counterparts in the private sector. Courts must
distinguish between a police department’s actions in its capacity as an
employer and its actions as a law enforcement arm of the state. A police officer
is not seized within the meaning of the Fourth Amendment simply because he is
told to report for questioning to a centralized location, such as headquarters
or the internal affairs division.
Myers further claims that he was summoned without probable cause. However,
a summons is not a seizure under the Fourth Amendment. Probable cause is required
only when there is a seizure, and in this case Myers was summoned no different
than if he had been called to jury duty or to testify in court. Myers was not
required to post a bond or limit his travel. Clearly, probable cause existed
for the issuance of the summons. The facts known to the investigating officer
at the time and presented to the magistrate met the constitutional standard
of probable cause.
Finally, Myers claims that his due process rights were violated when he was
suspended without pay and the department subsequently refused to reimburse him
for the annual leave he used during the suspension. Neither the United States
Supreme Court nor this federal circuit has decided whether disciplinary action
short of termination entitles an employee to notice and a hearing before the
employer acts. Consequently, the supervisors are entitled to qualified immunity
on the claim that they suspended Myers without pay. The Supreme Court has ruled
that an initial finding of probable cause to support criminal charges against
an employee, together with an opportunity for a prompt post-suspension hearing,
is normally sufficient to meet the criteria of due process. Summary judgment
for supervisors granted. [Myers v. Shaver, 245 F. Supp.2d 805 (W.D. Va. 2003)]
Lane was an Atlanta police officer who was dismissed from the force for various work rule violations. The dismissal notice was sent on September 29, 1999. Lane appealed the dismissal to the civil service board. Three weeks after the dismissal, October 19, Lane was indicted by a federal grand jury on three felonies unrelated to the work rule violations. He pleaded guilty to those charges on March 14, 2000. On April 7, 2000, the civil service board reversed Lane’s September 29 dismissal and ordered the city to grant him appropriate relief. Several days later the city, however, notified Lane for the first time that it was using the October 19 indictment as grounds for suspension and made that suspension retroactive to the date of the indictment. The city never appealed the civil service board’s reinstatement order and Lane never appealed the city’s notice of retroactive suspension. Rather, Lane filed suit seeking an order enforcing the civil service board’s decision. Trial court subsequently issued a writ of mandamus ordering the city to pay Lane his salary from September 29, 1999 (the date he was initially dismissed) to April 7, 2000 (the date the civil service board overturned the dismissal). The city appeals.
HELD: The Atlanta city code provides that if a dismissed employee prevails in
his appeal, then the employee shall be reinstated in accordance with the decision.
The effective date of the reinstatement shall be the date immediately following
the date of the appealed action. Further, the reinstated employee shall be paid
as if there had been no break in service. The word “shall” is generally
read to be mandatory. Because the city did not appeal, it is required by its
own law to reinstate Lane as a city employee and pay him what he otherwise would
have been paid had he not been dismissed. The city argues, however, that it
is excused from reinstating Lane because it could retroactively suspend him
based on the federal indictments and subsequent conviction. Nowhere in the city
code, however, is there authorized retroactive suspensions. Even an emergency
suspension with pay requires the city to provide notice no later than five working
days after the date of the action.
Georgia statute prohibits anyone with a felony conviction from being employed
as a police officer. That statute, however, does not authorize retroactive suspensions
and dismissals. While the statute prohibited the city from reinstating Lane
as a police officer following his federal convictions, the statute did not prevent
the city from reinstating Lane administratively for purposes of calculating
his entitlement to back pay. Lane is entitled to compensation from September
30, 1999, the date he was initially dismissed, through April 18, 2000, the date
he was formally notified he was being suspended without pay based on the federal
criminal charges.
The city could have avoided having to pay a convicted felon several months
of back compensation simply by acting sooner. It could have notified Lane when
he was indicted that he was suspended without pay should he prevail in his pending
civil service appeal. It could have notified Lane when he pled guilty that he
was dismissed. Instead, the city waited almost six months before using the federal
convictions as the basis for suspension. Reversed with order to award back pay
to terminated officer. [City of Atlanta v. Lane, 578 S.E.2d 420 (Ga. 2003)]
Negrete, an off-duty deputy sheriff, was injured in a motor vehicle collision
while driving his county patrol car to his part-time job as a security guard
at a manufacturing plant. At the time of the collision, he was in uniform and
carrying his badge and firearm. He was using the county patrol vehicle consistent
with county policy. As a deputy he was required to respond to calls and render
aid to others while in the vehicle. Based on the evidence that the deputy was
performing the identical functions for his employer that he would have been
performing had he been working a patrol shift, a hearing officer awarded him
worker’s compensation benefits. The county appeals.
HELD: The county argues that the hearing officer inappropriately read prior
case law and created a broad extension of worker’s compensation coverage
to any off-duty law enforcement officer doing something of benefit to his employer.
This is a misreading of the hearing officer’s order. The crux of the matter
is the factual finding that the deputy was conducting a law enforcement function
at the time of the collision, that function being active patrol of his route
to the location of the part-time job. The county’s allegation that the
injuries did not arise out of, and in the course of, his employment is misplaced.
The deputy was performing identical functions for the employer that he performed
when he was on duty. The off-duty deputy was acting in a capacity little different
from an on-duty officer. Awarding of worker’s compensation benefits was
appropriate under Georgia law. [Harris County Sheriff’s Office v. Negrete,
578 S.E.2d 579 (Ga. Ct. App. 2003)]
Massachusetts statute provides that members of the police department must reside
within 15 miles of the city limits, but permits local entities to establish
by ordinance or collective bargaining a requirement that officers be city residents.
In 1991, the city enacted an ordinance mandating that all city employees hired
after January 1, 1992, would have to be city residents. Beginning in 1994, the
city required newly hired employees to sign an acknowledgment that residency
was a condition of employment. The collective bargaining agreements between
the city and the police association from that date until 1997 did not mention
the issue of residency.
In 1996, the city brought an action against four officers seeking to require
them to comply with the ordinance. During the pendency of the suit, the city
and the union negotiated a new labor agreement. That labor agreement provided
that all police officers hired after January 1, 1996 were bound by the city
residency laws. As a consequence, the city dropped its suit against the four
officers.
In 2000, the police brought suit to have the residency clause in the collective
bargaining agreement declared invalid as to 36 police officers who were hired
prior to the date in the contract. They argued that despite the 1991 ordinance,
the residency requirement applicable to the 36 officers was not imposed by the
ordinance but by the collective bargaining agreement. Trial court determined
that the ordinance, not the labor contract provision, created the residency
requirement and was enforceable against the officers. Union appeals.
HELD: The evidence reflects the city attempted to enforce its ordinance prior
to 1998. Even if made in good faith, the refusal of certain police officers
to comply with the ordinance cannot render the ordinance inoperative or establish
that the residency requirement was imposed by the collective bargaining contract
as opposed to the ordinance. The validity of an ordinance does not depend on
the lack of success of enforcement or the diligence of city officials.
The union also asserts that whenever a collective bargaining unit includes a
residency clause, it, rather than an ordinance, is operative. State law, however,
does not limit the application of ordinances or by-laws to cases where employees
are not represented by collective bargaining organizations. Here, the parties
bargained to limit the application of the ordinance to officers hired after
January 1, 1996. This, in effect, waived the applicability of the ordinance
to officers appointed before that date. There is no basis for the claim that
the union should not be bound by what it bargained for. Affirmed for city upholding
residency requirement. [Brockton Police Association v. City of Brockton, 785
N.E.2d 702 (Mass. App. Ct. 2003)]
A citizen filed a complaint against a police officer alleging that he was arrested
without cause. The incident generated local interest. The newspaper made a request
under the Massachusetts open records law for copies of the internal affairs
files.
After protracted litigation, the trial court ordered the release of the entire
unredacted contents of the file, except for documents containing information
regarded as criminal offender record information. The city appeals claiming
that the internal affairs records are “personnel records” exempted
from disclosure.
HELD: The primary purpose of Massachusetts open records law is to give the
public broad access to governmental records. Disclosure of records is favored
by a presumption that the record sought is indeed public. However, the legislature
has created a series of specific exemptions from the definition of “public
records.” The burden is upon the custodian of the record to prove with
specificity the applicability of the relevant exemption.
Here, the city contends that all the material being sought is exempt as “personnel
information” because it is part of a police officer’s disciplinary
report. Under state statute, materials falling within the category are absolutely
exempt. The city’s argument is that because internal affairs is an investigative
process that leads to officer discipline, documents and reports in the file
are disciplinary documents and disciplinary reports within the meaning of the
law. The newspaper, on the other hand, contends that the materials are not the
routine type of personnel information that the law seeks to protect.
While the statute exempts personnel information from disclosure, it does not
define the term. Decisions suggest that the term includes, at a minimum, employment
applications, employee work evaluations, disciplinary documentation, and promotion,
demotion, or termination information pertaining to a particular employee. These
items constitute information useful in making employment decisions.
In this case, the material sought falls into three broad categories. The first
category is correspondence exchanged between the city and the complainant’s
lawyer concerning notice of a suit being filed. The second group of documents
consists of police reports, rosters, arrest logs, and some miscellaneous information
gathered from outside the department. The third group of documents is from the
internal affairs investigation, including a memorandum from the chief to the
officer involved regarding the incident, summaries of witness interviews, the
initial and supplemental report, and a memo from a chief to the officer dealing
with the results of the internal affairs investigation.
The first two groups of documents do not fall within any accepted interpretation
of the term “personnel information.” They are documents that are
generated independently of internal affairs investigation as part of the routine
business of the city and the police department. The mere placement of these
materials in an internal affairs file does not make them disciplinary documents.
The last group of documents presents a closer question.
An internal affairs investigation is a citizen complaint procedure separate
and independent from ordinary employee evaluation. The process exists specifically
to address complaints of misconduct or corruption or other acts that will undermine
the trust and confidence between police and the citizenry. The internal affairs
procedure fosters public trust and confidence in the integrity of the department
and its employees because the department has the integrity to discipline itself.
A citizen’s assessment of an internal investigation of an officer’s
action promotes the core value of trust between the citizens and police.
Disciplinary action is but one possible outcome; exoneration is also a possibility.
The fact that an internal investigation may lead to a disciplinary or even criminal
action still does not make all the documents personnel information.
The memo from the chief to the involved officer detailing the findings and
reaching the conclusion that no disciplinary action was to be taken is the type
of disciplinary report that is exempt from disclosure as personnel information.
The fact that the chief’s memorandum contains information identical to
that contained in a letter to the complainant’s attorney does not make
the memorandum a public record. Exemptions are not dependent on whether the
same information may be available or discernible through alternative sources.
The same information may simultaneously be contained in a public record and
an exempt record. With the exception of the memo to the officer from the chief,
none of the other documents sought in this case qualify for the personnel exemption.
[Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 787
N.E.2d 602 (Mass. App. Ct. 2003)]
New Jersey Constitution and statutes require that promotions in the civil service
be based on considerations of merit and relative knowledge, skill, and ability.
To implement this provision, the state Department of Personnel (DOP) is charged
with administering civil service promotion exams.
In 1997, the DOP administered a statewide exam for the position of police sergeant.
A total of 182 candidates from the City of Paterson sat for the exam. Reportedly,
after the exam candidates congregated outside the testing area and discussed
the content of the exam with one another. There was later evidence that questions
appearing on the exam along with their answers were typed out by some candidates
and distributed within the police department. It was later alleged that the
content of the exam was common knowledge throughout the department prior to
any make-up exam. Concern about exam security was so high that a group of officers
sought to have the DOP not administer a make-up exam, claiming they would be
disadvantaged by the dissemination of the information contained on the exam.
Nonetheless, the DOP provided a subsequent make-up exam and, following its
past practice, used the identical exam that had been initially administered.
Because of medical excuses, three candidates took the make-up exam. They were
required to sign a security pledge certifying they had no knowledge of the contents
of the original exam. When the results were posted, eight officers were promoted
to sergeant. Five came from the initial 135 who passed the original exam and
three out of the three candidates who were permitted to take the make-up exam.
A group of officers sought to have the exam voided on the grounds that it violated
the fair and competitive civil service requirement of the state constitution.
Their efforts were rebuffed administratively. An appeals court affirmed the
rejection of the challenge to the practice of using identical questions on the
original and the make-up exams. Aggrieved officers appeal.
HELD: In the past, the court has sanctioned the DOP’s practice of reusing
a substantial number of exam questions from test to test in identical or similar
form, recognizing that such a practice reduces expense and produces consistency
from test to test. However, to achieve the goal of devising a fair, secure,
merit-based test, the DOP has the obligation to provide for the security of
the examination process by applying appropriate sanctions for breaches of security.
Although there is no evidence indicating that any of the three make-up candidates
actually had access to exam materials prior to taking the make-up test, it is
undisputed that exam security was breached prior to the administration of the
make-up exam. Once the DOP discovered the breach of security, the make-up exam
should have been cancelled and an appropriate remedy fashioned to ensure that
all candidates participated in a fair and competitive exam. The DOP’s
failure to do so undermined the integrity of the process and impaired the candidates’
ability to demonstrate their relative merit and fitness. In the future, make-up
exams that contain substantially different or entirely different questions than
those contained on the original exam should be used.
The qualifying list from the make-up exam is voided and the positions of the
three appointed sergeants are declared open. Remanded for further proceedings.
[In the matter of Police Sergeant, City of Paterson, 819 A.2d 1173 (N.J. 2003)]
In 1997, the civil service commission in Nassau County, New York established
a residency requirement for all county employees except police officers. The
requirement stated that police officer residency would be covered by state law.
State law, however, did not impose a requirement on candidates for police officer,
only on employed officers. In 1994, the civil service commission set an examination
for position of police officer for various departments in the county. In the
announcement of the exam, it stated that candidates must be legal residents
of the county or a contiguous county for 12 months preceding the day of the
test and maintain residency in the county or contiguous county until appointment
from the eligibility list.
Trager was born and reared in Nassau County until he moved to attend college.
Thereafter, he obtained employment in a distant county. He sat for the 1994
exam and passed. Two years after the exam, his application proceeded to the
next step, a background check.
On his application, he submitted a residence statement claiming to have continuously
maintained residency within Nassau County or in a contiguous county while he
went to school or worked. However, upon discovering that he had worked and resided
in a distant county, the civil service commission disqualified Trager as a police
candidate. He filed suit seeking a declaration that the efforts to establish
a residency requirement for police officer candidates violated the state constitution.
Trial court rejected the claim, but an intermediate appeals court reversed,
finding for Trager. County appeals.
HELD: The residency requirement contained only in the announcement for the
exam is invalid. State law permits the civil service commission to require candidates
for an exam to comply with certain residency requirements. However, it sets
forth a procedure, including a public hearing, to establish these requirements.
In this case, the civil service commission failed to follow proper procedures.
Additionally, the state statute concerning residency requirements for employed
police officers is inapplicable to candidates for a police position. Affirmed
for police candidate voiding residency requirement. [Trager v. Kampe, 786 N.E.2d
36 (N.Y. 2003)]
In 1997, Pittsburgh voters established a Citizen’s Police Review Board
(CPRB) to function as an independent board to investigate and recommend appropriate
action on complaints of police misconduct. The enabling legislation creating
the board permitted it to institute preliminary inquiry about an alleged incident
of police misconduct when a citizen filed a sworn complaint or when the board
itself initiated an investigation.
The city was already investigating complaints of police misconduct through
the Office of Municipal Investigations (OMI), which was part of the city law
department. Each sworn citizen complaint received by the CPRB was referred to
the OMI and the matters were often investigated by both the CPRB and the OMI.
OMI findings as to police misconduct became part of the officer’s personnel
file. The OMI investigation usually involved an interview of the suspect officer.
The officer was advised whether the allegations were of a criminal nature or
only administrative. In about 70 percent of the cases, the investigator gave
the officer a Garrity warning. A Garrity warning safeguards an officer’s
Fifth Amendment privilege against self-incrimination by requiring him to respond
to job-related questions, but bars the use of his responses in a subsequent
criminal prosecution.
After establishment of the CPRB, the police bargaining unit, the Fraternal
Order of Police (FOP), advised its members, that whether or not they appeared
at the CPRB hearings was their decision. Shortly thereafter, the city and the
FOP entered into a new labor agreement. The labor agreement specifically provided
that no officer would be compelled by the city to testify before the CPRB. The
CPRB filed suit against the city, the chief of police, and the FOP seeking a
writ of mandamus ordering the parties to cooperate with the CPRB. Trial court
dismissed the effort and CPRB appeals.
HELD: The writ of mandamus is an extraordinary remedy which compels performance
of a ministerial act or mandatory duty. A ministerial act is one in which a
public officer is required to perform upon a given state of facts and in a prescribed
manner in obedience to the mandate of legal authority. A writ of mandamus may
be issued only where there is a clear legal right in the plaintiff and a corresponding
duty in the defendant.
Here, the CPRB argues that the mayor has the obligation to cooperate with the
CPRB investigations and since the city can order officers to testify in OMI
investigations, it should likewise be compelled to order officers to testify
in CPRB investigations. Similarly, the CPRB seeks to have the collective bargaining
provision declared null because it purports to limit city cooperation with CPRB.
Finally, CPRB seeks to be recognized as a party to subsequent negotiations with
the FOP on the matter of officer discipline.
The CPRB, however, has established no legal right for a court order requiring
any of these factors. It can find no legal authority that gives it a clear legal
right to order the mayor or the chief of police to compel a police officer to
testify. Any disciplinary action undertaken by the mayor and chief of police
with regard to officer willingness to testify is pursuant to legislation and
is discretionary and is not a ministerial duty.
Additionally, the CPRB efforts violate a city ordinance that specifically states
that in creating the CPRB, the legislation was not intended to violate the right
against self-incrimination of any individual, in particular police.
Similarly, the provision of the collective bargaining agreement in no way undermines
the CPRB’s ability to obtain OMI files, as well as subpoena officers to
testify. CPRB likewise offers no legal authority that would warrant considering
an agent of the city for the purposes of being involved in collective bargaining.
Lacking the ability to establish a clear legal right to what it seeks, the CPRB
is not entitled to a writ of mandamus. [Citizens Police Review Board v. Murphy,
819 A.2d 1216 (Pa. Commw. 2003)]
A police officer was under investigation by the town for possible improper conduct while on duty. The officer asked for union representation during the course of his interrogation and the union asserted that the officer was entitled to such representation in addition to representation by an attorney.
Because the town disagreed with this position, the interrogation was delayed
and the town filed suit seeking a declaratory judgment on the officer’s
rights. Trial judge ruled that under Rhode Island law, no police officer under
investigation for misconduct had a right to have anyone other than an attorney
present during an interrogation and that the officer could not refuse to participate
in an interrogation because of lack of union representation. Further, trial
court ruled that no union representative may demand that a union official be
present during an interrogation. Union appeals.
HELD: The union argues that the Rhode Island State Labor Relations Act should
be interpreted along similar lines as the National Labor Relations Act (NLRA).
In 1975, the Supreme Court ruled that the NLRA granted an employee the right
to union representation during an investigative interview. This has become known
as the “Weingarten” right, from the case of the same name.
However, that right should not be extended to peace officers in Rhode Island
because of a special statute, the Law Enforcement Officers’ Bill of Rights.
This statute represents the entire body of rights the legislature intended to
apply to police officers in an internal investigation and supercedes the broader
state labor act and any potential “Weingarten” rights. The bill
of rights provides for a comprehensive process for interrogation of suspected
officers as well as the rights they enjoy, including the right to have counsel
present. None of the sections of the law grant the employee a right to union
representation. The law clearly reflects the legislative intent to make the
law enforcement bill of rights the only source of remedies available to officers
being interrogated. Overlaying the broader state labor law and the “Weingarten”
right to union representation would create conflicting law. Affirmed for city
denying union representation during a law enforcement interrogation. [Town of
North Kingstown v. Local 473, International Brotherhood of Police Officers,
819 A.2d 1274 (R.I. 2003)]
police officers
A fast-track ratification of a new contract will protect the jobs of Buffalo officers while granting the city productivity increases. The pact was approved by Buffalo PBA President Robert Meegan, Jr., on the eve of a rank-and-file vote. Meegan said that under the union's by-laws the vote would have only been advisory and he had authority to ratify the contract. A preliminary agreement had been reached several months ago but the city was waiting for a loan from the state to fully fund it. The ratification was a step to ensure the pact would be enforceable irrespective of the state's ultimate response to the loan request. Officers will see their salaries increase by more than $13,000 over the life of the multi-year agreement. A $5,000 raise is retroactive to July 1, 2002, pushing top of scale patrol officer pay to $56,072. Four percent wage hikes will be gained in each of the four remaining years of the contract. In exchange for the wage hikes and a promise not to furlough officers, the union agreed to one-officer patrol units and more flexibility in scheduling. City officials gave up the right to lay off police officers until at least 2007. However, officials expect some 200 officers will retire and not be replaced by that date. By the last year of the pact, patrol officer pay is expected to range between $48,896 and $64,096.
police officers
Pay raises totaling $10,000 over three years are at the core of a new labor agreement for Dade City police officers. For the current fiscal year, which ends September 30, officers will receive a three percent wage hike. Another 3.25 percent raise will be forthcoming in each of the next two years. Additionally, salaries will be adjusted by $3,100 this year. An adjustment of $2,550 will be made in the next fiscal year and another $2,050 will be paid in the final year of the pact. City officials approved the raises and adjustments to improve competitiveness with other agencies in the county. The West Central Police Benevolent Association represents the 16 officers covered by the pact.
police officers
A factfinder's report has resulted in a new three-year contract for the 13
non-supervisory officers on the Tipp City Police Department. City Council accepted the report and awarded
officers a 3.5 percent pay hike for 2003 and another for 2004. A three percent boost will occur in 2005.
The negotiations went to a factfinder from the state labor board when the parties could not agree on
five issues including wages, health insurance, and shift differentials. Officers will continue to pay
10 percent of health insurance costs.