Police Personnel Reporter – Jan 2017

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Police Personnel Reporter – Jan 2017

2017-01-17T08:39:22+00:00January 19th, 2017|Legal Updates, Local Police News|Comments Off on Police Personnel Reporter – Jan 2017

An employment law publication for law enforcement, corrections, and the fire/EMT services

ISSN 0164-6397

Cite this issue as:
2017 FP January

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CONTENTS

Monthly Case Digest
Age Discrimination
Bill of Rights Laws
First Amendment Related
Injuries to Employees
National Security Issues and Security Clearances
Retaliatory Personnel Actions
Retirement Rights and Benefits
Whistleblower Protection (2 cases)
Workers’ Compensation: Exclusive Remedy

Resources

Cross_References

 

MONTHLY CASE DIGEST

Some of the case digests do not have a link to the full opinion.
• Most Federal District Court opinions can be accessed via PACER. Registration is required; nominal fees
BNA arbitration awards can be obtained for a fee, from BNA Plus

Age Discrimination

A man worked for a local city parks department for 38 years before his employment classification was eliminated. He and many employees were laid off. He applied to be rehired in a newly created classification but did not get a position. He then retired from city employment but sued for age discrimination, retaliation, and harassment. The city asserted, with documentation, that its actions were taken for legitimate, nondiscriminatory reasons, in that he had refused to cooperate with the implementation of a new departmental policy getting away from separate recreational events for disabled members of the public and their enhanced inclusion in general events. Summary judgment was upheld for the employer. The plaintiff’s opposition to policies he viewed as discriminating against disabled members of the public was not protected activity because his opposition was not directed at an unlawful employment practice, so no unlawful retaliation occurred. Dinslage v. City and County of San Francisco, #A142365, 5 Cal. App. 5th 368, 2016 Cal. App. Lexis 970.

Bill of Rights Laws

A police officer received a notice that the department intended to terminate his employment because of an alleged lack of honesty and cooperation in the investigation of a police brutality claim. He appealed the decision, and the police chief decided that the allegations against him could not be sustained. While he wasn’t fired, he was removed from both the honor guard and the SWAT team. While he remained a field training officer, no trainees were assigned to him. He sued to allege a violation of his rights under the California Public Safety Officers Procedural Bill of Rights Act. Upholding the rejection of this claim, an intermediate state appeals court agreed that the removal of Perez from the SWAT team and the honor guard, and the failure to assign trainees to him as a field training officer did not violate the Act. The chief testified that he lost confidence in the officer’s honesty after events that included the officer telling investigators he had not seen an act of excessive force that, video recordings showed, he was in a position to witness; The challenged actions were not punitive within the meaning of Gov. Code, § 3303; the SWAT team and honor guard were collateral assignments, not formal, full-time assignments, and the non-assignment of a trainee to a training officer was not a disciplinary or punitive action according to the memorandum of understanding between the city and the police bargaining unit. Perez v. City of Westminster, #G050718, 5 Cal. App. 5th 358, 2016 Cal. App. Lexis 966

First Amendment Related

A police reserve officer was fired for allegedly making “harsh and accusatory statements” to his superiors in emails with his co-workers copied. He sued, claiming that this violated his First Amendment rights. A federal appeals court ruled that the plaintiff’s emails were not protected by the First Amendment when his interest in sending them was outweighed by the police department’s interest in promoting office harmony and efficiency, and containing overt hostility towards its leadership. LeFande v. District of Columbia, #15-7055, 2016 U.S. App. Lexis 20107 (D.C. Cir.).

Injuries to Employees

A former city police officer claimed that exposure to asbestos during his employment caused his diagnosis of mesothelioma. The officer and his wife sought permission to serve a late notice of claim on the city. The city argued, in opposition, that leave should be denied because N.Y. Gen. Mun. Law 207-c provides the exclusive remedy for the alleged work-related remedies. At issue on appeal was whether a police officer who is entitled to receive benefits under section 207-c for a duty-related injury is barred from bringing a claim against his or her employer under N.Y. Gen. Mun. Law 205-e. The highest court in New York held that Section 205-e does not bar a lawsuit by a police officer who suffers a line-of-duty injury caused by the employer’s statutory or regulatory violations when that police officer is employed by a municipality that has elected not to provide coverage pursuant to the Workers’ Compensation Law. Diegelman v. City of Buffalo, #168, 2016 NY Slip Op 07817, 2016 N.Y. Lexis 3532.

National Security Issues and Security Clearances

The plaintiff was a civilian Resource Analyst at the Nuclear Propulsion Directorate at the Naval Sea Systems Command, which required a Department of Energy security clearance. His security clearance was revoked because he knowingly brought a personal firearm onto a Navy facility in violation of regulations; armed himself with a personal weapon while acting as a Metropolitan Police Department reserve officer, contrary to regulations; and made false statements and false time and attendance entries to his civilian employer, the Naval Reserve Unit, and the police department. He argued that he brought his firearm to the facility in response to the 2013 Washington Navy Yard shooting, in perceived compliance with his duty as a Navy Reservist, and requested reinstatement under the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301. The Navy removed Wilson from federal service. The Merit Systems Protection Board properly found that it lacked the authority to review adverse security clearance determinations because neither the court nor the Board had authority to review the charge that discrimination was the reason for revocation of the security clearance, the — USERRA made no mention of security clearances, explicitly or otherwise, the core of the former employee’s allegation was that his security clearance revocation was initiated based on false complaints and accusations, and the Department of Energy evaluated the trustworthiness of those statements as part of its determination and found them reliable; Wilson v. Department of the Navy, #15-3225, 2016 U.S. App. Lexis 21747 (Fed. Cir.).

Retaliatory Personnel Actions

****Editor’s Case Alert****

A police officer filed a written complaint with his chief, reporting that fellow officers and county sheriff’s deputies had been racially profiling minority citizens and committing other constitutional violations. As a result, he claimed, among other retaliatory actions, a be-on-the -lookout advisory (“BOLO”) to all law enforcement in Douglas County, Georgia, described him as a “loose cannon.” “Consider this man a danger to any [law enforcement officer] in Douglas County and act accordingly,” the BOLO alarmingly warned and ominously instructed. He had previously been terminated as an officer, but appealed that decision, again repeating his allegations. The BOLO was issued the day after the termination appeal hearing by a major with the county sheriff’s office. After the BOLO had been issued, his car was allegedly followed by both police and sheriff’s vehicles. He was later allowed to return to work as an officer. He sued the major in his official and individual capacities for defamation and retaliation in violation of his First Amendment rights.

Rejecting defenses of qualified immunity on the First Amendment retaliation claim and official immunity by the defendant major on the defamation claim, the appeals court found that the plaintiff’s alleged facts would support a reasonable inference that the police department communicated with the Sheriff’s Department about the plaintiff’s complaints prior to the issuance of the be-on-the-lookout advisory (BOLO), that the Sheriff’s Office and the major knew about the termination appeal hearing, and that the major issued the BOLO at least in part in retaliation for plaintiff’s complaints, in violation of the First Amendment. The court also ruled that the plaintiff’s constitutional right to be free from retaliation that imperiled his life was clearly established at the time that the BOLO was issued. The allegations satisfied the showing of a deliberate intention to do wrong—that is, actual malice. “Our First Amendment demands that a law enforcement officer may not use his powerful post to chill or punish speech he does not like. If he does so, he may not hide behind the veil of qualified immunity.” Bailey v. Major Tommy Wheeler, #15-11627, 2016 U.S. App. Lexis 21194 (11th Cir.).

Retirement Rights and Benefits

Back in 1980, a city added a cost-of-living adjustment (COLA) to its Fire and Police Pension Fund. In 2014, after having previously created a fixed annual 3% increase in retirement benefits, the city amended the COLA to a lower, variable annual increase. Participants in the fund challenged this change, claiming that it was a violation of the Contract Clause of the U.S. Constitution, depriving them of the expected higher COLA. Upholding the dismissal of this claim, a federal appeals court ruled that there was no unmistakable evidence of the city’s intent to be bound to the fixed COLA because the COLA was neither vested nor accrued within the meaning of the City Code. In the absence of some clear indication that the legislature intends to bind itself contractually, a statute does not create a contractual relationship. The fact that the Fund described the fixed three percent COLA as “guaranteed” when enacting a 2000 amendment did not prove that the city intended to be bound to the fixed COLA. Frazier v. City of Chattanooga, #15-6405, 841 F.3d 433 (6th Cir. 2016).

Whistleblower Protection

The Superintendent of Industries at a federal correctional center oversaw a prison factory that produced ballistic helmets primarily for military use, as well as occasionally serving as associate warden. He disclosed to the government-owned corporation that ran the prison and to the warden what he perceived to be the mismanagement of factory funds. The warden subsequently reassigned him, and over the next four and a half years, he was assigned to low-level positions. The warden attributed these reassignments to unspecified Office of Inspector General (OIG) employees after the OIG investigated the alleged fund mismanagement. Finally, the warden assigned the plaintiff to sit on a couch in the lobby for eight months. The plaintiff appealed to the Merit Systems Protection Board, alleging violation of the Whistleblower Protection Act, 5 U.S.C. 2302(b)(8). The ALJ found that the government had rebutted his case. A federal appeals court reversed, finding that the government did not prove by clear and convincing evidence that it would have reassigned the plaintiff absent his protected disclosures. Miller v. Department of Justice, #15-3149, 2016 U.S. App. Lexis 21512 (Fed. Cir.).

A city implemented a “directed patrols” policy, requiring police officers to engage with city residents even though the residents are not suspected of any wrongdoing. The program consisted of “a structured 15-20 minute deployment into a targeted area to accomplish a specific patrol or crime reduction function.” Officers are to obtain personal information from the individuals they interact with if the individuals agree to provide it. During these encounters, officers should “approach community members” and “inquire about criminal activity or quality of life issues.” A police union sued, claiming the city had imposed an unlawful quota on arrests or citations because officers on supplemental patrol were expected to conduct a minimum of 27 directed patrols per shift and officers on regular patrol were expected to perform a minimum of 18; with failure to comply as cause for disciplinary action, in violation of N.J.S.A. 40A:14-181.2, an anti-quota law. Individual officers alleged First Amendment and whistleblower retaliation. A federal appeals court rejected the anti-quota law claim since that law applies to arrests and citations, which the patrol’s policy did not require. The First Amendment retaliation claims were rejected, but the appeals court ruled that a whistleblower retaliation claim could proceed. Under New Jersey’s Conscientious Employee Protection Act, N.J. Stat. Ann. § 34:19-3. The officers established that they had a reasonable belief that the policy was illegal, that they performed a protected whistleblowing activity, that their transfers constituted an adverse employment action, and that there was a causal connection between the whistle-blowing activity and the adverse action. Fraternal Order of Police Lodge 1 v. City of Camden, #15-1963, 2016 U.S. App. Lexis 20600 (3rd Cir.).

Workers’ Compensation: Exclusive Remedy

An employee of a water district was the victim of a staged mock robbery planned by her co-workers. She had not been told of the plan, handed over the money, ad later received treatment for a psychiatric injury. She sued the employer and four co-employees for assault and intentional infliction of emotional distress, and a jury awarded her $360,000 in damages. Overturning an order granting a new trial, a California intermediate appeals court acknowledged that the usual rule is that workers’ compensation is the exclusive remedy for injuries arising out of and in the course of employment arising out of work, but in this case, the complaint did not concede that the case was within the Workers’ Compensation Act. The evidence was able to support a finding that the work was not a contributing cause of the injury and a theory that they fell within the assault exception to the workers’ compensation exclusivity rule. Lee v. West Kern Water Dist., #F070772, 2016 Cal. App. Lexis 985, 81 Cal. Comp. Cases 966.

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RESOURCES

    Law Enforcement Chaplains:   Law Enforcement Chaplains: Defining Their Roles, by Richard Braswell, Bryan Steinkopf and Angela Beamer, FBI Law Enforcement Bulletin (November 2016).

     Police Management: Teams: A Pathway to Organizational Success, by Dan Bradley and James A. Jancewicz, FBI Law Enforcement Bulletin (December 2016).

     Police Management: Single Point of Failure: One Person Can Ruin the Team, by Joshua Judah, FBI Law Enforcement Bulletin (November 2016).

Reference:

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CROSS REFERENCES
Defamation — See also, Retaliatory Personnel Actions
First Amendment Related — See also, Retaliatory Personnel Actions
Injuries to Employees — See also, Workers’ Compensation: Exclusive Remedy
Pensions — See also, Retirement Rights and Benefits
Retaliatory Personnel Actions — See also, Age Discrimination
Veterans and Other Preference Laws — See also, National Security Issues and Security Clearances
Workers’ Compensation — Exclusive Remedy — See also, Injuries to Employees

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John Blackmon

A retired law enforcement officer who now serves as the President of the Fraternal Order of Police Tri-County Lodge #3.
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