Five East St. Louis, Illinois, police officers failed to show up for the day shift June 28, an apparent case of "blue flu." The sickout was the latest incident of conflict between officers and city officials.
Some observers claim the walkout was prompted by the replacement of former chief
Delbert Marion and his command staff last December.
However, local Fraternal Order of Police (FOP) officials claimed the naming of a new chief had
little effect on the rank-and-file. Rather, the 56
officers on the department have been working without a
labor contract since last December. The FOP is asking
for back pay it claims is due officers for changing
from 12-hour shifts to eight-hour shifts as a way of
cutting overtime. Department officials say the pay
problem
has been solved but acknowledge that officers were being paid for 80 hours of work every two
weeks when they were in fact working 84.33 hours.
Officers reportedly are also upset because the mayor attempted to replace the members of the local police board with his own appointees.
"All the pettiness needs to stop and this city needs to move forward," said Deputy Chief Rudy McIntosh. "We've got a few disgruntled employees, and they've got a choice. I'm here almost 16 hours every day. If they don't want a job, bring your gun and badge and put it on my desk, because we need to do what we need to do as police officers."
During the sick out, officers from neighboring communities provided patrol services. No additional job action has been reported by the city.
Latin for "let the master answer." A legal rule that the employer is liable for harm done by employees while acting within the scope of their employment.
Ford Motor Company's response to complaints that its Crown Victoria police cruiser is unsafe does not work, according to tests conducted for the City of Dallas, Texas. Crash tests conducted by a firm hired by lawyers representing the city have shown that a plastic trunk insert designed to prevent fuel tank ruptures fails to prevent the problem and may actually increase the risk to officers, according to information released by the city's attorney.
A crash test conducted in early July on a Ford Crown Victoria equipped with a plastic "Trunk Pack" resulted in 7.6 gallons of fuel leakage. A similar test conducted earlier without the plastic insert released only .3 gallons, said Dallas City Attorney Madeleine Johnson.
The Trunk Pack insert, which is constructed of high-density polyethylene, looks like a trunk organizer. Ford has been recommending the use of this retrofit to reduce the likelihood of a gas tank explosion in case the widely used police vehicle is rear-ended.
"This tank essentially split like a
watermelon,"
Johnson said after showing a video of a 75
mile-per-hour crash test of the vehicle containing the
Trunk Pack. Johnson said she released the results of
the crash test to warn other law enforcement
agencies against using the plastic inserts.
A Ford lawyer said the company stands by the drop-in box as a means to reduce
leakage and possible explosion. Jeff Tillotson criticized the city for drawing
conclusions from what he characterized as "preliminary results."
Dallas has purchased ten of the $250 Trunk Packs but will not
install them until it is sure the devices are safe."I just find it shocking
that something that was supposed to be a safety device was never tested,"
Johnson said. She said Ford declined to participate in the Dallas tests.
Dallas currently has a lawsuit pending against Ford concerning the safety of the vehicles. The
tests, conducted by the law firm representing the city
in the suit, produced leakage of 7.6 gallons of
gasoline with the Trunk Pack installed but containing no
police equipment. Two other crash tests using routine police
equipment in the trunk produced about 17 gallons
of leakage, with and without the plastic insert installed.
"We're suspicious of any test conducted by
plantiff's lawyers and announced at press
conferences," Tillotson replied.
A Dallas officer was killed in 2002 when his Crown Victoria burst into flames after being struck from behind. In the last 20 years about a dozen officers have lost their lives after Crown Victoria fuel tanks ignited after being struck by another vehicle. About 85 percent of all American police cars are Crown Victoria Police Interceptors.
Exploding fuel tanks are not Ford's only worry. In early July, a New Jersey jury awarded nearly $2 million to the widow of a police officer who claimed her husband died because his Crown Victoria was difficult to steer at high speed. Diane Brock, widow of Paramus officer Vincent Brock, received the award after suing the automobile manufacturer for what she alleged was a defective design in the steering mechanism. Brock contended that Ford knew of the defect and failed to fix it.
Officer Brock, 39, struck a utility pole in
1993 when responding to reports of shots fired at a
Paramus restaurant, a call that later proved to be a prank.
According to his widow's lawsuit, the 12-year veteran's Crown Victoria had a defective
design
that made it difficult to steer through turns at
high speed.
A Ford spokesperson expressed condolences to the officer's family but blamed human error for the crash. Kathleen Vokes said, "It's unfortunate that we have to pay anything at all when the vehicle performed as it was designed."
The jury awarded Diane Brock $400,000 for her husband's pain and suffering and $750,000 for the "guidance and care" their three children lost with their father's death. Another $750,000 was granted for lost future wages, based on Brock's life expectancy. "The issue of safety really bothered me," Brock said after the verdict. "Big business needs to shift its focus from valuing profits to valuing human life."
The American Civil Liberties Union (ACLU) recently sued the City of Seattle over its refusal to disclose documents about its contract negotiations with the police union. The Washington ACLU asked Mayor Greg Nickels' office for the documents in April, but the Mayor's Office declined, citing the confidentiality of labor negotiations.
Specifically, the ACLU wants to review lists of issues the union and the city plan to bring up during negotiations. Regina LaBelle, legal adviser to the mayor, said the documents the ACLU seeks are exempt from disclosure as part of a "deliberative process" and that the city would risk violating labor laws if it disclosed the information.
But the ACLU lawsuit filed in state court contends that the documents regarding the city's starting points in negotiations should be public. "We're not asking for updated reports on the negotiations themselves, we simply want to see what are the issues on the table," said Doug Honig, ACLU spokesman. Of chief interest to the ACLU is the city's position on the police department's policies of investigating officer misconduct. Some disciplinary policies are subject to bargaining with the police union. The ACLU and other groups have been pushing for policies tougher on police misconduct.
The city's contract with the Seattle Police Officers Guild expired December 31, 2002.
There are many ways for police unions to make a point. Perhaps one of the most unusual is to work for free. And that is exactly what 100 Hartford, Connecticut, police officers did July 7 to highlight the staffing shortage in the department. Members of the Hartford Police Union worked the evening shift gratis to underscore safety concerns after three on-duty officers were shot within the past month. The patrol officers, who worked their regularly scheduled day off, supplemented the normally assigned personnel. Several of the volunteer officers were deployed to walking beats in high crime areas, assignments that have been reduced or eliminated in recent years due to budget shortfalls.
". . . what price do you put on public safety?
If the streets here aren't safe for cops, they're
not safe for the general public," said union
President Michael Wood.
Budget problems in Hartford and other Connecticut cities have reduced police staffing levels and caused hiring freezes and cancellations of academy classes.
"We're chained to the radio, running from call to call," Wood added. "We simply can't do that."
With 360 officers, the department is about 60 positions short of full staffing, said Chief Bruce Marquis.
The city has lost about 90 officers since 1999. As a consequence, overtime costs have increased by 250 percent. Meanwhile crime has begun to climb after hitting a multi-year low in 1999.
A police officer, who was fired for violating an obscure Massachusetts law banning smoking among public safety workers, plans to fight his dismissal, which was based on an anonymous letter. Wayne Jeffrey, a seven-year veteran of the Fall River force, was fired May 29 after an internal investigation, prompted by an unsigned letter that claimed he smoked marijuana at an Easter weekend party. A state law provides that police officers and fire fighters are subject to immediate termination if they are found to be using tobacco products either on or off duty.
"It's our policy to investigate any accusation thoroughly regardless of the source," Chief John M. Souza told the Fall River Herald News. "The statute as written provides us no room for discretion."
Statewide, only two other officers have been fired since the law went into effect, but Jeffrey's case was the first based on an anonymous tip.
"I don't think when they drafted this law they intended it to be used in this manner," Jeffrey, 42, said. "If you're charged with a crime, you get to face your accuser. I never got to face my accuser."
The Massachusetts legislature originally passed the law to accompany the state's
heart-lung legislation that enables public safety officials
to receive special disability benefits easier than
the
average worker. Without the law, proponents
argue, doctors are unable to determine if a heart or
lung illness is work-related.
Jeffrey plans to appeal for arbitration or a civil service hearing. History is against him, however. The state Supreme Judicial Court in 1997 upheld the firing of a Plymouth officer who was caught smoking four years earlier in her cruiser.
Under the law, all new public safety hires must sign a contract, as Jeffrey did, pledging not to smoke tobacco products. During the internal investigation, Jeffrey denied smoking marijuana but admitted to smoking tobacco.
The law passed 15 years ago requires police and fire officials hired after 1987 to be immediately terminated if they are found to be using tobacco products. A Massachusetts legislator has announced plans to introduce legislation that would grant tobacco-smoking officers a second chance if they complete a tobacco recovery course.
Jeffrey said the tone of the letter leads him to believe that a fellow officer "ratted" him out. However, he said that although he knows other officers smoke cigarettes, he will not use his termination to bring colleagues down. The former officer estimated that he had a "50-50" shot at getting his job back.
The Supreme Court has begun its summer recess. It will reconvene in a special session on September 8 to hear arguments on campaign financing. The court's 2003-2004 term begins October 6.
Before the justices left for vacation, they denied review in several cases. The justices rejected an appeal in Pappas v. Bloomberg, No. 02-1441. Left intact is a lower court decision upholding termination of a New York City police officer who had anonymously distributed anti-Semitic literature. The dismissal did not violate the ex-officer's First Amendment rights.
Also rejected for consideration was Johnson v. Buffalo, New York, Police Department, No. 02-1573. This leaves in place the dismissal of a police officer who had alleged that his termination was racially based.
No decision will be forthcoming until September in Joseph v. City of Salt Lake City, Utah, No. 02-1781. This is the second effort by a former police officer to have the justices review the process by which he was terminated.
One evening, Dwan, a veteran Boston police sergeant, and his patrol partner
responded to the report of a robbery. The report mistakenly stated that a police
officer had been shot. Several police cars were pursuing the suspects. Eventually,
the chase continued on foot. One of the first officers on the scene was an African-American
undercover officer dressed in plainclothes. The undercover officer sought to
climb a fence while pursuing the suspects but was pulled from the fence by unidentified
officers. He was beaten severely, apparently due to mistaken identity.
Subsequently, the department launched an investigation into the beating of
the undercover officer. Dwan initially cooperated by filing a report in which
he claimed he did not see which officers assaulted the undercover officer because
he was at the other end of the street at the time. Even though an internal affairs
officer expressed satisfaction with Dwan’s explanation, the department
nonetheless continued to question him over time. The investigation continued
because no officer ever admitted to beating the undercover officer or to seeing
anyone else doing so. Part of the investigation produced a version of events
that was at odds with Dwan’s version.
Eventually, Dwan was called before a federal grand jury who was investigating
the beating. Dwan was not given immunity by the grand jury and consequently
refused to testify, invoking his Fifth Amendment privilege against self-incrimination.
About six months later, he was subpoenaed again to testify before the grand
jury and once again invoked his Fifth Amendment privilege.
Eight days after this second refusal to testify, Dwan was placed on administrative
leave with pay. The department subsequently charged him with violating various
regulations in regard to the beating incident. Over the next year, various hearings
were scheduled, but all of them were cancelled. The complaint against Dwan was
ultimately abandoned although he served 18 months on paid administrative leave.
While on leave, he received his regular salary but did not work overtime or
work special assignments. He was reinstated after passing the second of two
polygraph examinations indicating that he did not participate in the beating.
After his reinstatement, Dwan filed suit against the department and various
police officials claiming that his constitutional rights had been violated.
Police officials moved to dismiss the case on the grounds of qualified immunity,
an action the trial court rejected. The trial court ruled that Dwan’s
Fifth Amendment rights were clearly established at the time of the investigation,
so qualified immunity was not available. Police officials appeal.
HELD: Under well-established law, public officials are entitled to qualified
immunity from suit for their official actions unless the conduct violated Dwan’s
constitutional rights and those rights were clearly established so that a reasonable
officer would have known that his behavior was unlawful. In a series of decisions,
the Supreme Court has held that public employees cannot be coerced into waiving
their Fifth Amendment rights. This rule is an invocation of public employee’s
Garrity rights, from a case of the same name. The federal circuits are split,
however, on whether a Fifth Amendment violation occurs when the employer does
not coerce the employee. This federal circuit has held that coercion is lacking
so long as the employee was never threatened or forewarned of any sanction for
refusing to testify, even though the employee suffers adverse action after the
fact as a result of refusing to cooperate.
Here, no one told Dwan that if he pled the Fifth Amendment before the grand
jury, he would be placed on administrative leave. Under prior case law, a negative
inference may be drawn by a public employer because of an employee’s refusal
to answer questions about job-related misconduct, so long as the inference is
plausible.
Here, the police officials were trying to penetrate the familiar “wall
of silence” and bring wrongdoers to justice. Dwan may or may not have
had knowledge of the event, but the police officials were certainly entitled
to begin an investigation into whether Dwan’s original claims constituted
false reporting or other violations of departmental regulations.
This case presents no obvious Fifth Amendment claim. The department did not
coerce Dwan into waiving his Fifth Amendment right and thus did not violate
the Constitution. The scope of Dwan’s Fifth Amendment privilege was not
clearly established at the time he was placed on administrative leave. Consequently,
the police officials are entitled to qualified immunity from suit. Reversed
for police officials. [Dwan v. City of Boston, Massachusetts, 329 F.3d 275 (1st
Cir. 2003)]
The federal Fair Labor Standards Act (FLSA) permits a public employer to provide overtime compensation in the form of compensatory time (comp time) in lieu of cash. The Houston Police Department (HPD) administered comp time usage by way of a log known as the “red book.” A red book was maintained at each HPD unit and listed all officers in the unit who were scheduled to be off duty for any given day. Each unit had a predetermined limit on the number of officers who could be off on a particular day. This limit was based on the shift commander’s estimate of the unit’s manpower needs and was generally limited to 10 percent of the unit’s staff.
An officer wishing to use accrued comp time had to sign his or her name in the
red book for the days wished to be taken off. If the red book’s limit
for the requested day had not been reached, the officer received the requested
comp time. If, however, the red book was full for that day, the officer normally
did not receive the time off.
This system displeased the police officers’ union because it would frustrate
an officer’s attempt to choose the days on which he could use his comp
time. Instead of allowing an individual assessment of the inconvenience an officer’s
absence on a particular day might place on the unit, the red book system imposed
an inflexible ten percent limit. Forced by the department to work overtime at
the department’s convenience, members of the union would have preferred
to use comp time at their convenience.
Accordingly, the union sued alleging that the red book system violated the
FLSA by failing to provide individualized assessments of the disruption that
the comp time requests above the ten percent limit would cause the operations
of the police department. Trial court granted summary judgment to the city holding
that the FLSA did not grant the employees the right to use their accrued comp
time on days of their own choosing. Police union appeals.
HELD: The FLSA states that a public employee who has accrued compensatory time
off shall be permitted by the employer to use such time “within a reasonable
period after making the request, if the use of the compensatory time does not
unduly disrupt the operations of the public agency.” In this case, the
city contends that the phrase “within a reasonable period after making
the request” obligates the employer to authorize use of comp time within
a certain time frame following the date of the request. Comp time may be delayed,
nonetheless, if the employee’s desired usage would unduly disrupt the
agency’s operation.
The union, however, argues another reading of the requirement. The union claims
that the employer must allow the employee’s use of the comp time on the
days specifically requested unless it would unduly disrupt the agency’s
operation. A close reading of the statute reveals that the language offers a
span of time to the employer, the beginning of which is the day of the employee’s
request. It mandates a reasonable period for use of comp time. The “reasonable
period” clause imposes upon the employer the obligation to facilitate
the employee’s timely usage of his accrued compensatory time. The “unduly
disruptive” clause suggests conditions that would release the public employer
from the previously imposed condition. The statute thus reflects a balance between
obligation and exemption.
Congress did not intend to require a public employer to grant comp time use
as specifically requested by the employee, but instead granted the employer
a reasonable period within which to allow the employee to use the accrued time.
Consequently, the department is not required to make an individual assessment
on each comp time request before granting it or denying it. The use of the red
book system does not violate the FLSA. Affirmed for police department. [Houston
Police Officers’ Union v. City of Houston, Texas, 330 F.3d 298 (5th Cir.
2003)]
Boston police officers and detectives were parties to collective bargaining
agreements with the city. Among other provisions, the agreement set forth the
hours of each work shift and included a 30-minute compensated lunch period.
Department rules, however, restricted the taking of the paid lunch. Among the
restrictions was that lunch could not be taken during the first two hours of
the shift or in the last hour of the shift.
A dispute arose as to overtime payments due various Boston officers and detectives.
A suit was filed seeking alleged back overtime. Among the issues generated by
the suit was whether the paid lunch break was to be counted as “work time”
for the purpose of ascertaining the total hours worked in a week and, consequently,
the point at which federally mandated overtime rules applied.
The trial judge considered the arguments of the police officers and the city
on this question.
HELD: Federal Fair Labor Standards Act (FLSA) requires payment for overtime
wages for all hours worked in excess of a statutory pay period. Interpretive
regulations state that the agreement of the parties to provide compensation
for meal periods may or may not convert them into hours worked, depending upon
what the parties have agreed to. Under the FLSA, meal time is not regarded as
work time if the time is not compensated. Consequently, such time is not included
in the definition of regular rate of pay when calculating overtime. However,
if mealtime is compensated, it may or may not be hours worked for purposes of
establishing regular rate if the parties have agreed to treat such time as hours
worked.
Here, the facts reveal that no explicit agreement existed between the unions
and the city as to whether or not the mealtime was to be considered as work
hours. In this instance, the court will apply the “predominantly for the
benefit of the employer” test. This test views meal periods as being work
time if the restrictions imposed on the employee during the meal period are
predominantly for the employer’s benefit.
Prior case law holds that if an employee’s only restriction is that he
remain on call during their lunch breaks, the period is not viewed as spent
predominantly for the employer’s benefit. Here, the Boston practice of
officers taking lunch requires them to remain on call. However, the facts reveal
that only on rare occasion are the officers actually disrupted from their lunch.
Similarly, it is rare that a lunch period is denied because of an emergency.
Looking at all the facts, the court concludes that the parties did not intend
for the lunch period to be considered hours worked, even though compensation
was provided for the time. Since the compensation for the lunch break is not
for work, it need not be included in the determination of the regular rate of
pay for the officers for FLSA purposes. Regulations specifically permit compensation
for meal periods to be excluded from hours worked providing, of course, that
the time is not in fact worked time. In other words, the mere fact that compensation
is provided for the lunch period does not convert it into work time calculated
in the determination of the regular rate of pay under the FLSA. [O’Hara
v. Menino, 253 F.Supp.2d 147 (D. Mass. 2003)]
Hardric was hired as a police investigator in 1992. At that time, he was considered
an at-will employee. In 1998, the city revised its personnel rules. Among the
provisions of the rules was the assurance that employees would not be discharged
from employment except for good cause and only in accordance with a discharge
procedure. The procedure set forth in the rules provided, among other things,
a hearing for the employee.
Approximately six months after the adoption of the new personnel rules, Hardric
received a written notice of termination. The notice alleged that he had violated
various city rules and that he was insubordinate and had willfully disregarded
orders. Hardric filed a written notice of appeal of his termination. He alleged
that his employment rights had been violated and that the process did not comply
with the city personnel rules. Despite efforts to obtain a hearing before a
grievance committee pursuant to the personnel rules, the city never scheduled
such a hearing. Consequently, the former officer filed suit claiming violation
of his contractual and constitutional rights. Trial court dismissed the suit
and former officer appeals.
HELD: Under Alabama law, provisions contained in an employee handbook coupled
with an employee’s continued service after the issuance of the handbook
modifies the traditional at-will doctrine. When a public employer limits its
right to terminate an employee by providing a manual outlining specific procedures
that must be followed in order to terminate an employee, violation of these
procedures gives rise to a breach of contract claim.
Here, the former officer alleges that his termination did not follow the policies
and procedures set forth in the city personnel manual. Accordingly, he states
a valid breach of contract claim. Likewise, he has a claim of wrongful termination.
Prior case law holds that dismissal of a public employee who is entitled to
a pre-termination hearing, without such a hearing, is a wrongful act constituting
a tort under Alabama law. Case is reversed and remanded for further proceedings.
[Hardric v. City of Stevenson, 843 So.2d 206 (Ala. Civ. App. 2002)]
Cook was a police lieutenant on the Denver Police Department. The chief of
police recommended he receive disciplinary action, including demotion from lieutenant
to the rank of police officer, for violating various department rules. Cook
filed suit seeking a declaratory judgment that demotion in rank was not an action
available under the Denver Municipal Charter. Trial court upheld the discipline
and officer appeals.
HELD: The general rules of statutory construction apply to municipal charters
as well as state statutes. Charters are to be construed according to their plain
meaning. When a charter is unambiguous, the court will not alter the plain meaning.
But if the language does not clearly establish the meaning, or if the language
is unclear, then the court must ascertain the meaning of the charter from external
sources.
Here, the Denver city charter states “any member of a classified service
shall be subject to reprimand, discharge, reduction in grade, fine, and/or suspension
for a violation of such rules and regulations.” Cook claims that this
provision allows a reduction grade, but says nothing about a demotion in rank.
The city argues that the provision is ambiguous on the question of demotion
and rank.
Under the structure of the police department, only police officers have different
pay grades. But, there are several ranks within the department. This classification
differentiates between rank and grade. The grade of a police officer is generally
based upon length of service within the rank. However, the language of the city
charter applies to “any member” of the police department, not just
the police officers. Hence, a narrow interpretation of “reduction in grade”
would conflict with the broad “any member.”
The city charter empowers the chief of police to maintain administrative control
over the department and to initiate disciplinary action. The charter grants
the power to discharge police officers. Many states outside of Colorado have
ruled that the power to discharge necessarily implies the power to demote. If
the power to demote were not implied, there would be an unreasonable disadvantage
established in the police department. It would be illogical to suggest that
the police chief could only discharge an officer who remained competent to perform
duties at a lower rank. The phrase “reduction in grade” includes
both reductions in rank and in grade. Affirmed for city. [Cook v. City and County
of Denver, 68 P.3d 586 (Col. Ct. App. 2003)]
Duncan was a city police officer. While off duty, he was at a bar in a neighboring
community when he became acquainted with a female patron. Sometime during the
evening, the female learned that Duncan was a police officer. Just before the
bar closed, the female willingly accompanied Duncan to his car for the purpose
of engaging in sexual relations. Duncan and the female engaged in the consensual
sex act in the car and again in the parking lot behind the car. During the sexual
activity in the parking lot, a group of individuals observed their behavior.
The incident was subsequently reported to Duncan’s department. Following
an investigation, the police chief charged Duncan with violating department
rules regarding unbecoming conduct and immoral conduct.
The board of police and fire commissioners conducted a hearing, and after listening
to the testimony of witnesses and reviewing Duncan’s personnel file, found
that the officer had engaged in a sex act on a public parking lot that others
viewed. The board determined that this was unbecoming and immoral conduct and
ordered Duncan discharged from his position as a police officer.
Duncan appealed the matter and trial court remanded the case to the board for
reconsideration of sanctions short of discharge. On reconsideration, however,
the board stood by its decision to dismiss Duncan from the force. Once again,
he appealed and the trial court mandated that the police board institute the
maximum penalty available under state law short of dismissal and ordered Duncan
be reinstated. Police board appeals.
HELD: In Illinois, the standard review of an administrative agency’s
decision regarding discharge requires a two-part analysis. Initially, a court
determines whether the findings are against the manifest weight of the evidence,
and second, the court must determine whether the findings of fact provide a
sufficient basis for the agency’s conclusion that cause for discharge
exists.
In this case, the facts are largely undisputed. The board found that Duncan
had engaged in a sex act on a public parking lot while others were present.
This determination is certainly supported by evidence presented at the hearing.
As to the second, Illinois statutes do not define “cause” but case
law has defined the concept as “some substantial shortcoming that renders
the employee’s continuance in office detrimental to the discipline and
efficiency of the service.” A police board’s finding of cause is
to be respected by a court and should be overturned only if it is arbitrary,
unreasonable, or unrelated to requirements of service.
Here, the record reflects that Duncan on occasion must enforce the city ordinance
that prohibits persons from engaging in sexual intercourse in a public place.
Yet, he was willing to engage in similar conduct in a nearby jurisdiction when
he was aware that such conduct would be improper if it occurred in his city.
This conduct indicates a disregard of the law. A police officer who freely disregards
laws that he has sworn to uphold impairs the discipline and efficiency of his
entire department and undermines the authority of every officer on the street.
Having sexual intercourse at a public place, along with Duncan’s prior
disciplinary record, when taken together support the board’s finding that
the officer lacked good judgment and a respect for the law. The board decision
to discharge officer was not arbitrary or unreasonable. Trial court ruling reversed
and dismissal order reinstated. [Duncan v. City of Highland Board of Police
and Fire Commissioners, 788 N.E.2d 1144 (Ill. App. Ct. 2003)]
Wolfe was a motorist who was stopped by a county police officer, Ziegler, for
driving while intoxicated. Instead of arresting Wolfe, Ziegler asked her to
sit in the passenger seat of his patrol car and indicated he would drive her
home. Ziegler then informed the dispatcher by radio that he was out of service
and was going home to check on a faulty furnace. Instead of driving Wolfe directly
home, Ziegler drove to a remote location in the county where he raped her. He
then drove Wolfe to her house. She called 911 to report the rape. As a result
of the incident, Ziegler was criminally charged with rape, but ultimately convicted
of misconduct in office. He resigned from the police force.
Wolfe subsequently sued Ziegler and certain police officials of the county.
She obtained a $1,000,000 judgment against Ziegler but was unsuccessful in collecting
the award. Consequently, she sued the county claiming that under the county
charter as well as the collective bargaining agreement between the police union
and the county, the county was legally obligated to indemnify Ziegler for the
judgment rendered against him. In other words, the county was legally required
to pay Wolfe for the tort committed by one of its police officers. Lower courts
held for county and Wolfe appeals.
HELD: State law, county ordinance, and the collective bargaining agreement
with the police union all set forth circumstances under which the county must
indemnify a police officer in cases of civil suit. Each of these documents essentially
provides for indemnification in litigation arising out of acts within the scope
of the officer’s employment.
Wolfe concedes that raping of a citizen is not within the scope of an officer’s
employment, but argues that the traffic stop and the subsequent tort suit did
constitute “litigation arising out of” the traffic stop within the
meaning of the law. Wolfe argues that but for Ziegler’s position as a
police officer making the traffic stop, the subsequent rape would not have occurred.
Wolfe’s interpretation, however, is contrary to Maryland law.
Here, the litigation arose out of the “act” of raping Wolfe, not
out of the “act” of the traffic stop. The collective bargaining
agreement that requires indemnity of police officers in civil cases refers to
“an act within the scope of employment” not “acts arising
out of employment.” Those phrases have two different meanings. The officer’s
act of raping Wolfe was not within the scope of his employment and lower courts
correctly ruled that the county’s self-insurance program does not indemnify
police officers in that situation. [Wolfe v. Anne Arundel County, 821 A.2d 52
(Md. 2003)]
Two detectives were transporting a prisoner from the district attorney’s
detective squad room to a correctional facility. The detectives placed the prisoner
in the squad locker room where he was handcuffed by one hand to a mounted pipe
that had been installed for that purpose. While in the room, the prisoner was
able to steal a revolver from a detective’s locker. While being transported
to the correctional facility, the prisoner who was handcuffed in the rear of
the police car, shot and killed both of the transporting detectives.
Subsequently, the survivors of the detectives commenced a wrongful death suit
against the city. The plaintiff’s theory was that the locker room was
improperly used as a prisoner detention area and the prisoner had gained access
to the locker containing the gun because the lock was either open or defective.
Plaintiffs argue, among other things, that the city had violated state labor
law, which requires a public sector employer to furnish its employees with a
safe place of employment. A jury awarded a judgment against the city. City appeals.
HELD: New York statute authorizes recover for negligent failure to comply with
the requirements of any statute or rule of a governmental department. A plaintiff
seeking to recover under this law must identify a statute or ordinance which
the employer failed to comply with. Absent a negligent failure to comply with
the statutory requirement, the Fireman’s Rule prohibits a plaintiff from
recovering damages for negligence in the creation of the condition allegedly
giving rise to the injury.
New York state labor law provides that every employer, including public employers
shall furnish employees a place of employment that is free from recognized hazards
that cause, or are likely to cause, death, or serious physical harm. The purpose
of the statute is to provide public sector employees with the same protection
private sector employees receive under federal occupational health and safety
laws.
In this case, the city argues that since the detectives were not harmed in
the locker room, the plaintiffs cannot allege that they were harmed at “their
place of employment” and thus there was no violation of the labor law.
Plaintiff counters that although the shooting did not occur in the locker room,
the fact the locker room was used to detain prisoners who were able to access
a revolver created the unsafe condition.
The facts of the case indicate that the alleged hazard was one based not upon
the physical condition of the locker room or defect of the facility itself,
but rather upon the practice of holding prisoners in proximity to lockers where
firearms are kept. Without the prisoner present, there was no unsafe condition
in the room. State labor law encompasses physical and environmental hazards
in the workplace, not the use to which a room is put.
Police officers routinely face special hazards and perform functions which
put them at heightened risk of injury. Police officers, by the very nature of
their duties, cannot be furnished “a hazard free employment, or a hazard
free place of employment.” Safety rules and procedures may be established
as in this case. Officers are reminded of these safety rules. The hazard presented
by the necessity to transport detained prisoners was sufficiently and properly
diminished by the city to the extent that it fulfilled its legal duty to its
employees under state labor law.
Where, as here, there is no negligent failure to comply with the statute, there
can be no recovery under state law. Reversed for city, dismissal of suit. [Williams
v. City of New York, 758 N.Y.S.2d 349 (N.Y. App. Div. 2003)]
Elimination of overtime will save base pay levels of Tulsa police officers under a newly approved labor pact between the city and Lodge 93 of the Fraternal Order of Police. Officers agreed to swap cash payments for compensatory time and thereby avoided an initial city proposal to reduce base pay by 2.7 percent. Because of the overtime wage freeze, some officers may see cash losses of up to $15,000. By awarding officers compensatory time instead of cash, the city will save about $2.1 million. While not receiving an across-the-board raise, officers will still be eligible for annual step adjustments. Tulsa base wage will continue to range between $32,711 to $51,717 in the coming fiscal year.
Members of Local 312 of the International Brotherhood
of Police Officers, NAGE/SEIU, have approved a new
two-year contract. The contract covers roughly 60 police officers
and detectives. Personnel will receive a 2.875 percent wage
boost retroactive to July 1 and another 2.75 percent next July 1.
Patrol officer base pay now goes to about $42,800 while detectives
will earn just over $44,000. Included in the contract is a
voluntary wellness program that rewards officers who stay in top
physical condition. Officers who pass a standardized fitness test will
receive a $550 stipend the first year of the pact and $750 during the
second year. Also included in the agreement is a sick bank that
allows employees to donate unused sick leave to each other and a
$250 annual equipment stipend for members of the honor guard,
SWAT team, and dive team.