Chapter 6 - EMPLOYMENT LITIGATION
Article 6-55
Link: OHIO - BATTALION CHIEF TERMINATED - ENTITLED TO HEARING BEFORE CITY'S APPEALS BOARD EVEN IF CLASSIFIED AS EXEMPT (Feb. 17, 2012)
Article 6-54
Article 6-53
Article 6-52 (Sept. 2011)
Link: U.S. DEPARTMENT OF JUSTICE FILES LAWSUIT AGAINST CITY OF TRUMAN, MN - RE-EMPLOYMENT RIGHTS OF U.S. MILITARY (Sept. 2011)
Article 6-50
ILLINOIS: PORNOGRAPHY – MOBILE DATA TERMINAL – POLICE OFFICER PROPERLY FIRED
On July 12, 2011, in Hurst v Board of Fire and Police Commission, Case No. 4-10-0964 (IL Dist. 4 App.), the Appellate Court of Illinois held that Clinton Police Department properly fired officer Billy Hurts for watching porno on his MDT. The Court held that the Board of Fire and Police Commission of the City of Clinton did not violate the state eavesdropping statute by admitting the porno into evidence at a hearing, and this evidence “overwhelming supported the Board’s decision to discharge plaintiff.”
http://www.state.il.us/court/opinions/AppellateCourt/2011/4thDistrict/July/4100964.pdf
The Court described the charges:
“On January 30, 2009, Michael Reidy (Reidy), the Clinton chief of police, filed with the Board written charges against plaintiff. Reidy alleged plaintiff viewed pornography on the employer-owned mobile data terminal while on duty in violation of “certain rules and regulations of the City of Clinton Police Department.”
No violation of eavesdropping law:
“Plaintiff claims Reidy violated the eavesdropping statute by using the employer owned
mobile data terminal, and the software thereon, as an eavesdropping device to ‘secretly
monitor’ pornography viewing by plaintiff. Under the terms of the eavesdropping statute, in order for a communication to constitute a protected ‘electronic communication,’ both the sending and receiving parties must intend it to be private under circumstances justifying such expectation. 720 ILCS 5/14–1(e) (West 2008).”
***
Nothing in the record before this court suggests the ‘sending parties’ of the various pornographic images intended to keep them private; thus, the images were not electronic communications according to the statute. Because they were not electronic communications, plaintiff's claimed error is without merit.
Police manual put him on notice:
“Moreover, a Clinton Police Department Policy and Procedures Manual (Manual) dictated the mobile data terminals were to be used for law-enforcement purposes only and further, that officers would not use the mobile data terminals in any manner that would tend to discredit the police department. The Manual disclosed messages sent on the mobile data terminal were ‘retrievable.’ Because plaintiff was aware of the terms of the Manual, he did not have a reasonable expectation of privacy in his communications after the Manual went into effect. As the Board noted in its decision, plaintiff had no reasonable expectation of privacy or confidentiality with regard to his use of city-owned computers during the performance of his official duties.”
Legal Lesson Learned: Fire & EMS departments should also inform personnel in department policy that MDTs, similar to department computers, are to be used for official purposes only, and the data is retrievable.
Article 6-49
MARYLAND: ARSON / NEGLIGENT HIRING - SECURITY GUARD OF MULTIPLE HOMES UNDER CONSTRUCTION IN MARYLAND - RACIALLY MOTIVATED ARSONS – SECURITY COMPANY DID NOT CONDUCT THOROUGH BACKGROUND CHECK
On Aug. 30, 2011, in Joseph Antonio, et al. v. Security Services of America, LLC, Civil Action No. 05-cv-2982-AW, in U.S. District Court of District of Maryland, 2011 U.S. Dist. LEXIS 98764, a federal District Judge held that SSA can be sued for negligence seeking damages for emotional pain by two homeowners who had purchased their homes at the time of the arson, but 30 other plaintiffs who had not yet closed on their houses cannot sue for emotional pain under Maryland law.
The Court described the racially-based arsons at Hunters Brooke subdivision.
“This case arises out of the now notorious arson of December 6, 2004, in which five men executed a conspiracy to burn homes, most of which were minority-owned, in ‘Hunters Brooke,’ a newly developed neighborhood in Charles County, Maryland. Of the thirty-two Plaintiffs in this case, two owned and lived in homes in this neighborhood, while the other thirty had contracted to purchase homes and had participated in their design.
***
Pursuant to the Developer's direction, SSA assigned a single security guard to monitor Hunters Brooke during non-construction hours, from approximately 6:00 p.m. to 5:00 a.m. In this position, the security guard would station himself in a patrol vehicle at the front of the construction site, prevent unauthorized individuals from entering, and patrol the site periodically.”
Security Guard “Speed” was one of the arsonists.
“During this period, Defendant Speed and the other Individual Defendants conspired to burn and damage the homes, and allegedly did so with racial animus against African-American and other minority families who planned to move into the houses. While on duty, Speed created a map of the neighborhood and determined the race of each house owner. Then, on December 3, 2004, while on duty, Speed allowed his co-conspirators to deposit flammable liquids within and around the houses in Hunters Brooke.”
***
At some point between midnight and 3:20 a.m. that morning, Defendant Walsh drove to Defendant Parady's house and picked him up. Walsh and Parady then met with the other co-conspirators, including Speed, in a parking lot in Waldorf, Maryland. Fitzpatrick called Speed at 3:20 a.m., and Speed returned his call at 3:21 a.m. Around 4:00 a.m., the arsonists entered the site, and some of them entered the houses, poured accelerants in them, and lit them on fire. The arsonists remained there, pouring additional accelerant, for thirty to forty-five minutes, and saw the homes begin to flame. The Charles County 911 Emergency System received a call reporting the fire at 4:54 a.m. The houses sustained serious damage.
Evidence indicates this arson was racially motivated. The Individual Defendants had uttered statements indicating they were angry that African-Americans were moving into the area. On the night of the fire, one of the Individual Defendants allegedly painted the words "Black Jokers" on a dumpster. Additionally, 90 percent of the homes damaged were owned or under contract to African-Americans or other minorities. Finally, one Defendant stipulated that the arson was racially motivated. Doc. No. 375, Ex. 5.”
The Developer sued SSA, which settled with the Developer. The Developer rebuilt the destroyed homes, and compensated the home buyer for the delay. All plaintiffs eventually moved into new homes in the subdivision. Many are still troubled by the arson, and now sue SSA for negligence [plaintiffs also sued the individual arsonists].
“All of the Plaintiffs eventually closed on their house purchase contracts. But Plaintiffs continue to be haunted by the arson and have suffered emotional injuries with physical manifestations, such as insomnia, anxiety disorder, and major depressive disorder.”
SSA apparently failed to perform background check on “Speed” and also rehired him after firing him for altercation with a supervisor.
“SSA is a security service that advertised itself as providing ‘Access Control, Client Property Patrol, and Fire Protection.’ Doc. No. 485, Ex. 9. In hiring its employees, SSA's marketing materials suggest that it performs a ‘thorough examination of the applicant's background, including verifications of prior employment, education, and personal references.’ Doc. No. 485, Ex. 11 at ED01-00004803. Speed's personnel file contains no such verifications and SSA had not suggested that it performed any. Doc. No. 485, Ex. 10 at SSP0025-81. Had SSA spoken with Speed's personal references, it would have learned that Speed had recently been in an outpatient mental health clinic. Doc. No. 485, Ex. 1. Additionally, it may have learned that Speed had been expelled from high school for an act of violence against a classmate. Doc. No. 485, Ex. 1. After being hired, Speed had problems at work and in August 2004, got in an altercation with his supervisor and quit. Doc. No. 485, Ex. 21. SSA placed a note in Speed's file stating ‘not for rehire’ after this incident. Doc. No. 485, Ex. 1. However, needing employees in November 2004, SSA rehired Speed and assigned him to Hunters Brooke. Doc. No. 485, Ex. 1.”
Two plaintiffs who had purchased their homes and moved in may proceed with lawsuit for damages against Security Company. .
“Plaintiffs Rookard and Potts moved into Hunters Brooke with their children four days before the fire. Doc. No. 485 at 27. The night of the arson, their son smelled smoke and awoke Rookard and Potts. Potts looked out the window and saw the house across the street on fire, houses to the left and houses to the right on fire. Id. Potts described their escape: ‘The houses were engulfed in huge flames and you could feel the heat from the houses; it was a terrifying experience. I could see the fear on my children's faces. We were all very nervous and scared. I was particularly worried that the propane tanks of the houses might explode... I feared for everyone's life. I didn't know if we would make it. I was just waiting for an explosion; it was horrifying to see those houses on fire.’ Rookard and Potts escaped without physical injury, and their house sustained no physical damage. Rookard and Potts later learned that their house had not been targeted because the arsonists had known it was occupied.
Under Maryland law, plaintiffs may recover for emotional harm when the negligent acts of a defendant place plaintiffs in the zone of danger, causing them to reasonably fear for their personal safety.”
Thirty other plaintiffs, who had not yet closed on their homes, cannot sue Security Company.
“[T]he Court finds that as a matter of law, Plaintiffs' negligence claims fail as to the thirty Plaintiffs who neither lived in Hunters Brooke at the time of the arson nor owned property there.
***
However, Plaintiffs did not live in Hunters Brooke at the time of the arson and were not in the zone of danger on the night of the arson. 3 Furthermore, Plaintiffs did not suffer property damage because they had not closed on the homes and thus did not own the properties at the time of the arson. Thus, even if the Court were to agree with Plaintiffs that the exception allowing negligence claims for emotional harm based on property damage should apply in a case like this one, the proper party to bring such a claim would be the one holding legal and equitable title to the properties at the time of the arson. This party was the Developer, and in fact, the Developer did bring a claim against SSA and the parties have settled. 4 Doc. No. 483 at 12.
3 At this point, the Court refers only to the thirty Plaintiffs who were not presently living at Hunters Brooke when the arson occurred.
4 Not only did the Developer have legal title to the properties at the time of the arson, the contract between Plaintiffs and the Developer provided that the Developer assumed all risk of loss or damage to the Property by fire. Doc. No. 315, Ex. 1 at 6. Thus, as a matter of law, Developer maintained equitable title at the time of the arson as well as legal title.
Legal Lesson Learned: Employers, including Fire & EMS Departments, should conduct thorough background checks on new hires. If the employee is later involved in criminal or other misconduct, their background may be a focus of litigation.
Article 6-48
D.C.: RELIGIOUS DISCRIMINATION - TWO D.C. FIREFIGHTERS OF MUSLIM FAITH WERE LATE FOR STATION DRILL BECAUSE THEY WERE PRAYING – LIEUTENANT GAVE VERBAL WARNING “JOB OR RELIGION” - BATTALION CHIEF LATER WARNED ONE FF OF POSSIBLE CONSEQUENCES OF FILING INTERNAL EEO COMPLAINT – FED. JUDGE DISMISSES LAWSUIT FOR BREACH OF TITLE VII SINCE NO ADVERSE ACTION BY FD, BUT “RETALIATION” CLAIM CAN PROCEED BECAUSE OF BATTALION CHIEF’S WARNING
On Aug. 31, 2011, in Tarick Ali v. District of Columbia, U.S. District Court for District of Columbia, 2011 U.S. Dist. LEXIS 99474, a federal District Court judge dismissed the claim of religious discrimination under Title VII of the Civil Rights Act of 1964 by a Muslim D.C. firefighter [now deceased, but lawsuit continues by his estate’s representative]. The lawsuit claiming “retaliation” for making internal complaint may proceed.
The Court described the drill, and comments by the Lieutenant about Ali’s religion.
“On June 15, 2006, Ali's engine company was scheduled for a ‘physical wellness assessment’ and training exercise. Pl.'s Opp'n Ex. 26 ‘Hutchinson Mem.’) at 1. At the scheduled time, [Lt. Michael] Malinowski called for the company to assemble at the truck. Ali and fellow firefighter Marcus Craig did not appear. Malinowski then rang the firehouse bell, after which Ali and Craig appeared. Malinowski angrily demanded an explanation; they responded that they were praying. Malinowski then ordered Ali and Craig to prepare special reports explaining their slow response time. Hutchinson Mem. at 1; Pl.'s Opp'n Ex. 5 (‘Malinowski Dep.’) at 30.
After the drill, Malinowski met with Craig, who complained that Malinowski did not treat Black and Muslim firefighters as well as he treated other firefighters, and argued that Malinowski's order to prepare a special report was unfair. Craig Decl. ¶ 7. Malinowski told Craig that the drill incident could be resolved informally and that Craig did not need to produce a special report. He then said that ‘Craig must make a choice between his job and his religion when at work, for if the religious activities continued to interfere with his duties it could have a negative impact on his job performance….’
Malinowski then had roughly the same conversation with Ali, telling him that he need not prepare a special report, see Hutchinson Mem. at 1-2, and suggesting that he needed to decide which was more important, his job or his religion. See Pl.'s Opp'n Ex. 12 (‘Meeting Tr.’) at 7.” [Footnotes deleted.]
On June 27, 2006, Lt. Malinowski verbally cautioned Ali that he must sign attendance journal each shift. This apparently prompted Ali to decide to file an EEO complaint against the Lieutenant, and to request a meeting with Battalion Chief Stephen Dove.
“On July 5, Ali and Malinowski met with Battalion Chief Stephen Dove regarding their dispute. Ali complained that Malinowski's remark that Ali needed to choose between his job and his religion was ‘out of line.’ Meeting Tr. at 5. Malinowski acknowledged making the remark but asserted that he was responsible for the performance of his subordinates, which, he averred, made the comment appropriate under the circumstances. Meeting Tr. at 7, 20. Malinowski and Dove both suggested that if Ali pursued his complaint, other members of the fire company, including Marcus Craig, would need to be disciplined for failing to sign the journals. Meeting Tr. at 11-13.
[Note: Marcus Craig was on a “last chance agreement” that could lead to his termination.]
Ali protested: ‘say[ing] . . . if I push it on, . . . everybody else is going to get in trouble . . . that's like a form of extortion.’ Meeting Tr. at 15. Dove responded that he was ‘just letting [Ali] know the ramifications of’ sending the report up the chain of command. Meeting Tr. at 15. The meeting concluded with Dove ordering ‘fresh reports’ from Malinowski and other members of the fire company as to why firefighters were not signing the journals. Meeting Tr. at 24; see Pl.'s Opp'n Ex. 23 ("Dove Report") at 1-2. Ali's special report was then forwarded to Deputy Chief James Talbert, see Hutchinson Mem. at 3; Dove Report at 2, and the other members of Ali's engine company were summoned to a line-up and ordered to ‘do special reports because of . . . Ali's complaint.’ Craig Decl. ¶ 11.”
Battalion Chief Stephen Dove requested Ali and Lt. attend mediation.
“Shortly after the meeting concluded, Dove requested that Malinowski and Ali attempt to resolve their dispute via mediation. They agreed, and met with Lieutenant Edgar J. Hoover that afternoon. At Hoover's prompting, Ali stated that an apology from Malinowski would settle the matter. After a short discussion between Malinowski and Ali, Malinowski apologized and the two shook hands. See Pl.'s Opp'n Ex. 25 ("Hoover Report") at 1. At Talbert's request, relayed via Dove, both men then prepared statements saying that their ‘private disagreement’ had been settled.”
Sept. 2006, Ali Complains To FD Diversity Officer – investigation results in “corrective action” against Lt., Battalion Chief and the Mediation Officer.
“In the weeks following their mediation, Malinowski and Ali appeared to work comfortably together. In late September, however, Ali raised Malinowski's job-or-religion remark with Detria Hutchinson, the Department's Diversity/EEO Program Manager. After an investigation, Hutchinson concluded that some ‘corrective action’ against Malinowski was ‘imperative,’ and recommended that he enroll in two courses through the District's Center for Workforce Development, on his own time and without overtime pay. Hutchinson Mem. at 4. She also found that Dove's July 5 statement that Ali's pursuit of his report would require Dove to address allegations against other firefighters to be ‘unacceptable’ and an ‘interference [with] Ali's EEO rights.’ Hutchinson Mem. at 4. She therefore ‘cite[d]’ Dove for interfering with Ali's right to participate effectively in the EEO process, and recommended that Dove enroll in Workforce Development courses and be disciplined appropriately. Finally, Hutchinson recommended that Talbert enroll in a Workforce Development course because he had too readily dropped the investigation into Ali's report. See Hutchinson Mem. at 4.”
Federal District Judge dismisses religious discrimination lawsuit, since Ali suffered no adverse action.
“Title VII makes it unlawful for an employer ‘to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion.’ 42 U.S.C.A. § 2000e-2(a)(1). At the summary judgment stage, Title VII discrimination claims are analyzed using the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), which first requires the plaintiff to establish a prima facie case of discrimination. Id. at 802. To do so, a plaintiff must show that: (i) she is a member of a protected class; (ii) she suffered an adverse employment action; and (iii) the unfavorable action gives rise to an inference of discrimination. George v. Leavitt, 407 F.3d 405, 412, 366 U.S. App. D.C. 11 (D.C. Cir. 2005) (citing Stella v. Mineta, 284 F.3d 135, 145, 350 U.S. App. D.C. 300 (D.C. Cir. 2002)). The District seeks summary judgment on Ali's discrimination claim on the sole ground that he is unable to establish a prima facie case because he cannot show that he suffered an adverse employment action.
***
As explained above, a finding of adverse action requires ‘objectively tangible harm.’ Forkkio, 306 F.3d at 1131. Ali identifies no such harm that resulted from Malinowski's job-or-religion comment. Malinowski was certainly criticizing Ali's performance (in a particularly insensitive fashion), but criticism from a supervisor that does not affect a subordinate's employment status or opportunities is not adverse action. See Taylor, 350 F.3d at 1293 (citing Brown, 199 F.3d at 457-58). Likewise, Ali identifies no consequences for ‘the terms, conditions, or privileges of [his] employment,’ Forkkio, 306 F.3d at 1131, that stemmed from his July 5 meeting with [Battalion Chief] Dove and Malinowski or from the mediation with [Lt.] Hoover later that day.” [Footnotes omitted.]
Judge holds that retaliation claim may proceed, based on comments of Battalion Chief.
“In addition to banning discrimination, Title VII also prohibits an employer from retaliating against an employee ‘because he has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under’ Title VII. 42 U.S.C. § 2000e-3(a).
***
The Supreme Court recently held that Title VII was violated when an employee's fiancé was fired in retaliation for the employee's protected activity. See Thompson v. N. Am. Stainless, LP, __ U.S. __, 131 S. Ct. 863, 868, 178 L. Ed. 2d 694 (2011) (‘We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.’); see also DeMedina v. Reinhardt, 444 F. Supp. 573, 580 (D.D.C. 1978) (reasoning that ‘[s]ince tolerance of third-party reprisals would, no less than the tolerance of direct reprisals, deter persons from exercising their protected rights under Title VII," Title VII's anti-retaliation provisions must necessarily reach materially adverse actions aimed at third parties).
Based on the foregoing -- and particularly on the Supreme Court's opinion in Thompson -- the Court concludes that Ali has established a genuine dispute of fact as to whether he experienced materially adverse action.
***
And finally, the causal connection between the threat and Ali's protected activity is obvious: Dove and Malinowski's remarks during the meeting expressly tied the threatened consequences for Craig and the other firefighters to Ali's pursuit of his discrimination complaint (which the District does not dispute was protected activity under Title VII). Consequently, summary judgment for the District on Ali's retaliation claim is not warranted.” [Footnotes omitted.]
Legal Lesson Learned: Fire & EMS officers must be very careful when discussing a firefighter’s religious practices, as well as discussing consequences of filing an internal EEO complaint. Focus your comments and discipline on the firefighter’s conduct.
Article 6-47
OHIO COURT OF APPEALS : CITY TO SAVE MONEY ON SALARIES / BENEFITS DEMOTED ONE CAPTAIN AND EIGHT LIEUTENANTS - THE DEMOTIONS SHOULD BE BASED ON EACH OFFICER’S DATE OF PROMOTION TO THAT RANK , NOT THEIR DATE OF HIRE ON FIRE DEPARTMENT
On Aug. 22, 2011, in Norris v. Elyria, 2001-Ohio-4169, the Ohio Court of Appeals for the 9th District (Akron) held 3-0, that the City of Elyria used the wrong standard to demote one Captain and eight Lieutenants to the rank of firefighter. http://www.sconet.state.oh.us/rod/docs/pdf/9/2011/2011-ohio-4169.pdf
The Court described the facts:
In April 2009, the City abolished one captain and eight lieutenant positions from
the rank structure of its fire department to save money on salaries and benefits. The City did not lay off any employees, but demoted individuals who held the abolished positions to regular firefighter. To determine which of its seven captains would be demoted to lieutenant, the City looked at the date that each had begun working for the department. The captain with least departmental seniority was Jamison Norris. He was also the most recent appointee to that position.
Regarding which of the 15 lieutenants it would demote to firefighter, the City again looked at departmental start dates. Because some lieutenants had been promoted from regular firefighter more slowly than others, this caused employees with more experience at the lieutenant position to be demoted instead of those with less experience at that position. For example, the City demoted Lieutenant Weber instead of Lieutenant Thrasher because it hired Lieutenant Thrasher as a firefighter one month before Lieutenant Weber. It made that decision even though Lieutenant Weber had been a lieutenant for 11 more years than Lieutenant Thrasher.”
The employees appealed to the City’s Civil Service Commission, which agreed with the City’s method of selection. The employees filed an appeal to Court of Common Pleas, and the trial judge reversed. The Court of Appeals agreed with the trial judge.
“Under [Oho Revised Code] Section 124.37, ‘[w]hen it becomes necessary in a police or fire department, through lack of work or funds . . . to reduce the force in such department, the youngest employee in point of service shall be first laid off. . . . When a position above the rank of patrolman in the police department and above the rank of regular fireman in the fire department is abolished, and the incumbent has been permanently appointed, he shall be demoted to the next lower rank and the youngest officer in point of service in the next lower rank shall be demoted, and so on down until the youngest person in point of service has been reached, who shall be laid off.’ ”
This provision was originally enacted in 1927 and codified at Section 486-17b of the Ohio General Code. Its language has remained substantially similar since 1931.”
The Court of Appeals noted that there have been also no cases interpreting this statute. They therefore looked to Ohio Revised Code provisions (enacted in 1982) regarding layoffs in the civil service. This is based on seniority in that job classification, not years of service.
“Under Section 124.32.1(D)(3) of the Ohio Revised Code, ‘[i]f an abolishment results in a reduction of the work force . . . [t]he employee whose position has been abolished shall have the right to fill an available vacancy within the employee’s classification.’ It further provides that, ‘[i]f the employee whose position has been abolished has more retention points than any other employee serving in the same classification, the employee with the fewest retention points shall be displaced[,] . . . [and] [i]f the employee whose position has been abolished has the fewest retention points in the classification, the employee shall displace the employee with the fewest retention points in the next or successively lower classification in the classification series.’ ”
Officers with more time in rank achieved their promotion by scoring best on civil service examination. Those with great time in rank should therefore enjoy greater protection from demotion.
“The fact that those firefighters had been promoted to lieutenant sooner than their colleagues was not by chance. Rather, the Ohio Revised Code provides that all fire department promotions must occur by competitive examination. R.C. 124.45. Although examination takers are given some credit for seniority, whoever scores highest on the exam is placed first on an eligibility list, from which all promotions occur.”
More seasoned officers should not be demoted over less experienced officers.
“The City has not persuaded us that the legislature would insist that more seasoned lieutenants should be demoted over less experienced lieutenants just because they had worked for the department a few days longer overall. Under the City’s logic, it would be forced to demote a ten-year veteran at a position in favor of someone who had only been appointed to the rank a day earlier, just because the more recent appointee had been hired by the department as a regular firefighter one week earlier. Such a result is not only illogical, but would undermine the purpose of the civil service system.”
Legal Lessons Learned: It is unfortunate that any demotions needed to be made. If city’s financial situation requires the FD to demote some of its officers, it is clearly in the best interest of the FD to keep its most experienced officers.
Article 6-46
NEW MEXICO - TWO FF WERE SENT TO PARAMEDIC 14-MONTH SCHOOL AT FD EXPENSE AND ON PAYROLL – EACH SIGNED CONTRACT AGREEING TO RUN AS PARAMEDICS AT FD FOR TWO YEARS - ONE RESIGNED 6 MONTHS, OTHER 7 MONTHS - LAWSUIT TO COLLECT PAYMENT DISMISSED BECAUSE FD DID NOT BARGAIN WITH UNION ON THIS NEW PROGRAM
On Feb. 7, 2011, in County of Los Alamos v. John Martinez, Michael Dickman, and Robbie Stibbard, President of Local #3279, Court of Appeals of New Mexico, 2011 N.M. App. LEXIS 21, 2011 NMCA 27, the Court the trial judge’s grant of summary judgment to the union. “The district court determined that paramedic training contracts are subjects of mandatory bargaining and that the County may not unilaterally enter into such contracts with Union members without including the Union in its negotiations. For the reasons that follow, we affirm the decision of the district court.”
The facts are set forth by the Court:
“Defendants John Paul Martinez and Michael Dickman (Defendants) were employees of the Los Alamos County Fire Department and members of the Union. Defendants were accepted to participate in a voluntary paramedic training program at Eastern New Mexico University in Roswell, New Mexico. The County offered contracts to Defendants called housing agreements, which Defendants entered into with the County. The contracts provided that the County would allow Defendants to continue their employment on paid status with full salary while they attended the paramedic training, that it would provide per diem or reimbursement for lodging, meals, and travel, and that it would make a vehicle available to them to drive to and from Roswell.
Defendants agreed that in return they would comply with several provisions in the contract, including maintaining employment as firefighter paramedics with the County for at least two years after completion of the fourteen-month training program. A failure to abide by the terms of the contract could result in disciplinary action up to and including termination. Further, Defendants agreed that if they failed to complete the training or maintain employment with the County as provided by the contract, they would reimburse the County for all expenses incurred by the County associated with the training. The County could, in its sole discretion, waive the reimbursement requirement for good cause shown.
Both Defendants executed a contract with the County, and both completed the paramedic training program. Martinez signed his contract and remained employed with the County for seven months after completing the program. He then voluntarily left his employment without making reimbursement. Dickman signed his contract and remained employed for six months after completing the program. He also voluntarily left his employment without making reimbursement.”
County sued two paramedics
The County sued the two paramedics for breach of contract and restitution. In early 2007, several months after the lawsuit was filed, the Local filed a motion to Intervene, which the trial judge granted.
Union intervenes
The union’s complaint in intervention requested a declaratory judgment that the paramedic training contracts were void “because the issue involved a subject of mandatory bargaining that had not been negotiated with the Union and the contracts were therefore unenforceable.”
The County argued that under their Management rights clause in the Collective Bargaining Agreement (January 1, 2004, through December 31, 2005), they had the right to enter into contracts with the two paramedics. They also argued that the so-called “zipper clause” in the CBA there was need to negotiate the contracts. Zipper clause includes: “The parties agree that this is the complete and only agreement between the parties.”
The Court disagreed. “The district court did not err in determining in the summary judgment proceeding that, as a matter of law, the Union did not waive its right to bargain based on the zipper clause.”
Legal Lessons Learned: If your FD has a CBA which is silent about 2-year “work off” obligation for reimbursement of paramedic training, it would be advisable to reach agreement with the union on this new condition of employment.
Article 6-45
OHIO – FIREARMS - OHIO SUPREME COURT HOLDS THAT 2006 STATUE DISPLACES ALL MUNICIPAL FIREARMS ORDINANCES – GIVEN NEW CONCEALED CARRY LAW, FDs SHOULD PROHIBIT PERSONNEL AND CITIZENS FROM HAVING FIREARMS IN STATIONS AND APPARATUS
On Dec. 29, 2010, in City of Cleveland v. State of Ohio, 128 Ohio St.3d 135, 2010-Ohio-6318, the Ohio Supreme Court (5 to 2) held that Ohio Revised Code 9.68, which became effective March 14, 2007, “is a general law that displaces municipal firearm ordinances and does not constitutionally infringe on municipal home rule authority.” http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-ohio-6318.pdf.
Shortly after the new statute became effective in 2007, the City of Cleveland filed a lawsuit, seeking a declaration that new statute was unconstitutional. The City had ordinances on the books concerning: registration of firearms with the City; possession of firearms by minors; possession of private property; possession at public places; preventing access to firearms by minors; possession and sale of assault weapons.
Trial Judge upholds new statute; Court of Appeals reverses
The trial judge in Common Pleas court for Cuyahoga County, ruled against the City, finding that Ohio Rev. Code 9.68 was constitutional, “as a general law that is part of a comprehensive statewide legislative enactment,” relying on Ohio Supreme Court’s 2008 decision in Ohio For Concealed Carry, Inc. v. Clyde, 120 Ohio St. 3d 96, 2008-Ohio-4605, 896 N.E.2d 296.
The City then appealed to the Court of Appeals for Cuyahoga County. The 3-judge panel reversed the trial court, holding the statute violated municipality “home rule” authority under Ohio Constitution. Sec. 3, Article XVIIII is the “Home Rule Amendment to the Constitution.
Ohio Supreme Court has “last word” – statute binds all municipalities
The State of Ohio then appealed to Ohio Supreme Court which held (5 to 2) that Ohio Rev. Code 9.68 is constitution, and overrides municipal ordinances. “Therefore today we reaffirm what we held in Clyde [Ohio For Concealed Carry, Inc. v. Clyde] – that 9.68 is part of a comprehensive statewide legislative enactment – and we hold that the court of appeals erred in analyzing R.C. 9.68 in a vacuum.”
The Ohio Supreme Court then identified numerous related Ohio and federal statutes that control firearms in Ohio, including:
Ohio R.C. 154769 (vessels);
2921.36 (detention and mental health facilities);
2923.121 (liquor establishments);
2923.122 (school zones);
2923.123 (courthouses);
1541.19 (state parks);
2909.08 (airports);
2923.16 (motor vehicles);
2923.161 (habitation structures);
2923.162 (cemeteries, schoolhouses, churches, charitable institutions, public roads);
2923.13 (felons and incompetents);
2923.15 (under influence of drugs and alcohol);
2923.211 (minors);
2923.11 (automatic firearms banned; sawed off firearms; zip guns; semi automatic weapons);
2923.2011 (interstate transportation);
2923.25 (locking devices)
2923.125 (licensing concealed weapons);
2923.126 (places cannot carry concealed weapons);
2941.141 (various sentencing laws).
Federal laws impose mandatory background checks, and prohibit persons with certain convictions and mental disabilities from possession, and control firearms dealers (18 U.S. Code 922).
Avoid patchwork of municipal ordinances
The Ohio Supreme Court wrote: “R.C. 9.68 addresses the General Assembly’s concern that an absent a uniform law throughout the state, law abiding gun owners would face a confusing patchwork of licensing requirements, possession restrictions, and criminal penalties as they travel from one jurisdiction to another. “
Legal Lessons Learned: FDs should post a sign prohibiting possession of firearms on FD property or apparatus. Likewise, adopt an SOG that prohibits your personnel from possessing firearms while on duty (unless they are an arson investigator / sworn police officer).
Article 6-44
OHIO – HOME ADDRESSES - OHIO SUPREME COURT HOLDS THAT CITY RETIREES’ HOME ADDRESSES ARE NOT PUBLIC RECORDS – FIREFIGHTERS AND EMS HOME ADDRESSES NOT DISCLOSEABLE UNDER SEPARATE STATUTE
On Jan. 26, 2011, in State Ex Rel. DeGroot v. Tilsey, 128 Ohio St.3d 311, 2011-Ohio-231, the Ohio Supreme Court held (7 to 0) that the home addresses of retired members of the Cincinnati Retirement System were not public records. http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-ohio-231.pdf.
Ann DeGroot, a retired member of the Cincinnati Retirement System, was concerned about proposed changes in the city’s healthcare benefits for retirees. She wanted the home addresses of all retirees eligible to receive a ballot on the proposed changes, and Sept. 2010 election of a Trustee to the Board of Trustees of the retirement system. When this was denied, she petitioned the Ohio Court of Appeals for 1st District (Hamilton County) to issue a writ of mandamus ordering Paula Tilsley, Executive Director of the retirement system to provide the information. The Court of Appeals denied her request.
The Ohio Supreme Court affirmed, holding that “Because those addresses are not records for purposes of R.C. 149.43 [Ohio Public Records Act], we affirm the judgment of the court of appeals.” The Court further explained:
In State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d 274, syllabus, we held, “State-employee home addresses are generally not ‘records’ under R.C. 149.011(G) and are thus not subject to disclosure under R.C. 149.43, the Public Records Act.” We concluded that home addresses of public employees do not document the organization, functions, policies, decisions, procedures, operations, or other activities because at best, home addresses represent contact information used as a matter of administrative convenience. Id. at ¶ 25. Disclosure of home addresses of public employees would thus “ ‘reveal little or nothing about the employing agencies or their activities.’ ” Id. at ¶ 27, quoting United States Dept. of Defense v. Fed. Labor Relations Auth. (1994), 510 U.S. 487, 497, 114 S.Ct. 1006, 127 L.Ed.2d 325.
Although Dispatch Printing involved state-employee home addresses rather than the home addresses of retired municipal employees, the same rationale applies. Consequently, the home addresses of Cincinnati retirees are, at best, contact information used for administrative purposes and reveal nothing about the city or its retirement system.”
Police, Firefighter, EMS Home Addresses, Other Information
While not before the Ohio Supreme Court in the above case, Ohio firefighters, EMS and police home records and other information are also protected from disclosure.
Under Ohio Rev. Code 149.43, specifically excluded from the definition of public records are “(p) Peace officer, firefighter, or EMT residential and familial information.”
The statute further defines this exception.
(7) "Peace officer, firefighter, or EMT residential and familial information" means either of the following:
(a) Any information maintained in a personnel record of a peace officer, firefighter, or EMT that discloses any of the following:
(i) The address of the actual personal residence of a peace officer, firefighter, or EMT, except for the state or political subdivision in which the peace officer, firefighter, or EMT resides;
(ii) Information compiled from referral to or participation in an employee assistance program;
(iii) The social security number, the residential telephone number, any bank account, debit card, charge card, or credit card number, or the emergency telephone number of, or any medical information pertaining to, a peace officer, firefighter, or EMT;
(iv) The name of any beneficiary of employment benefits, including, but not limited to, life insurance benefits, provided to a peace officer, firefighter, or EMT by the peace officer's, firefighter's, or EMT's employer;
(v) The identity and amount of any charitable or employment benefit deduction made by the peace officer's, firefighter's, or EMT's employer from the peace officer's, firefighter's, or EMT's compensation unless the amount of the deduction is required by state or federal law;
(vi) The name, the residential address, the name of the employer, the address of the employer, the social security number, the residential telephone number, any bank account, debit card, charge card, or credit card number, or the emergency telephone number of the spouse, a former spouse, or any child of a peace officer, firefighter, or EMT.
(b) Any record that identifies a person's occupation as a peace officer, firefighter, or EMT other than statements required to include the disclosure of that fact under the campaign finance law.
***
As used in divisions (A)(7) and (B)(5) of this section, "firefighter" means any regular, paid or volunteer, member of a lawfully constituted fire department of a municipal corporation, township, fire district, or village.
As used in divisions (A)(7) and (B)(5) of this section, "EMT" means EMTs-basic, EMTs-I, and paramedics that provide emergency medical services for a public emergency medical service organization. "Emergency medical service organization," "EMT-basic," "EMT-I," and "paramedic" have the same meanings as in section 4765.01 of the Revised Code.
Legal Lessons Learned: Ohio FDs should review this helpful statute will all sworn and civilian employees of their political subdivision that handle public records requests.
Note: The Ohio Fire Chiefs Association is holding a seminar for Administrative Assistants May 5, 2011, Hampton Suites, Easton, OH (contact Mary Pat Helvey, 614-410-6322). The author of this newsletter was invited to present on Ohio Public Records issues (1 pm – 3 pm), but will be out of the country. Ohio Assistant Attorney General Robert Moreman (614-466-2872) and Fire Chief David Fulmer, West Licking Joint Fire District (740-927-8600, x102), have kindly agreed to present.
Article 6-43
DISCIPLINE: DURING MOTHERS’ DAY PARTY AT FIRE STATION, FF TOOK 6-YEAR OLD SON TO TOP OF RAISED AERIAL LADDER - FF AND CAPTAIN IN CHARGE WERE SUSPENDED FOR 24-HOURS - CIVIL SERVICE BOARD REDUCED DISCIPLINE TO LETTERS OF REPRIMAND
On Dec. 15, 2010, in St.. Tammany Parish Fire Protection District No. 4 v. Operator John Picone and Captain Mike Jacobs, Court of Appeal of Louisiana, First Circuit, La. App. 1 Cir. 12/15/10; 2010 La. App. LEXIS 1750, the Court held 3 to 0 that the Civil Service Board had the authority to reduce the discipline to letters of reprimand.
FACTS
The Court described the following facts:
“On May 10, 2009, there was a Mother's Day family party at St. Tammany Parish Fire Protection District No. 4, Fire Station 43. Operator John Picone had climbed to the top of an extended tire truck ladder with his six-year-old son, who aspired to be a fire fighter. District Fire Chief Greg Kernan and Assistant District Fire Chief Daniel Haydel were driving down Highway 59 near Fire Station 43, when they noticed that the ladder truck was extended. They stopped at the fire station, and Assistant Chief Haydel went inside to tell Captain Jacobs to get Operator Picone to come down from the ladder, which Captain Jacobs did.
Thereafter, St. Tammany Fire Protection District No. 4 issued a departmental charge to Operator Picone and Captain Jacobs which asserted ‘possible violation of Section 9.20 item # 3. The commission or omission of any act to the prejudice of the department service or contrary to the public interest of policy' of the Municipal Fire & Police Civil Service Law.’”
24-HOUR SUSPENSIONS REDUCED TO LETTERS OF REPRIMAND
“After the hearing, Captain Jacobs and Operator Picone were each given a 24-hour suspension without pay, and without overtime during the pay cycle.
Operator Picone and Captain Jacobs each appealed their disciplinary rulings to the Civil Service Board. After their hearings, the Civil Service Board amended both discipline actions to written reprimands. St. Tammany Fire Protection District No. 4 appealed the Civil Service Board rulings to the district court, which affirmed the Civil Service Board rulings. St. Tammany Fire Protection District No. 4 is now appealing the district court judgment.
CLASSIFIED EMPLOYEES – RIGHT TO APPEAL CIVIL SERVICE COMMISSION
“Matters involving classified employees of municipal fire and police departments are governed by the Municipal Fire and Police Civil Service Law, La. R.S. 33:2471, et seq., and by La. Const. 1921, Art. XIV, § 15.1. See La. R.S. 33:2591 and La. Const. 1974, Art. X, § 18. Any regular employee in the classified [Pg 3] service who feels that he has been discharged or subjected to any corrective or disciplinary action without just cause may demand a hearing and an investigation by the Board to determine the reasonableness of the action. La. R.S. 33:2501(A). Landry v. Baton Rouge Police Department, 2008- 2289, pp. 4-5 (La. App. 1 Cir. 5/8/09), 17 So.3d 991, 994 (footnote omitted).
If the decision of the Board is prejudicial to the appointing authority, the appointing authority may appeal the decision to the court of original and unlimited jurisdiction in civil suits of the parish where the Board is domiciled. See La. R.S. 33:2501(E)(1). The district court's review of the Board's quasi-judicial administrative determination is an exercise of appellate jurisdiction. Review by the district court does not include a trial de novo. The district court's review is confined to the determination of whether the decision made by the Board was made in good faith for cause under the provisions of La. R.S. 33:2471-2508. La. R.S. 33:2501(E)(3). The district court may not substitute its opinion for that of the Board. The district court should accord deference to a civil service board's factual conclusions and must not overturn them unless they are manifestly erroneous. Likewise, the intermediate appellate court's review of a civil service board's findings of fact are limited. Those findings are entitled to the same weight as findings made by a trial court and are not to be overturned in the absence of manifest error.
(Case citations omitted).
FD POLICY AMBIGUOUS – REDUCED DISCIPLINE UPHELD
“St. Tammany Fire Protection District No. 4 asserts that the Civil Service Board constructively found both the existence of legal cause and good faith on its part and simply substituted its judgment for that of the appointing authority.
The district court expressly stated, in its reasons for judgment, that after considering the record it could not say that the Civil Service Board was arbitrary and capricious, or in bad faith or without cause, in amending the disciplinary actions from a 24-hour suspension to a written reprimand. After a thorough review of the case, we cannot say that the district court failed to use the correct standard of review in affirming the Civil Service Board's decision.
An examination of the record shows that while the Civil Service Board found that the complained of conduct did occur, the Civil Service Board further found that the policy or rule relied upon by St. Tammany Fire Protection District No. 4 to impose a suspension upon Operator Picone and Captain Jacobs was ambiguous and in need of clarification. After a thorough review of the record, we find no manifest error in the Civil Service Board's ruling.
Thus, for the foregoing reasons, the district court judgment is affirmed. The costs of the appeal in the amount of $633.92 are assessed against St. Tammany Fire Protection District No. 4.”
Legal Lessons Learned: Courts are reluctant to overturn administrative bodies like a Civil Service Commission in disciplinary matters; similar to reluctance to overturn arbitrator decisions under Collective Bargaining Agreement.
Article 6-42
BATTALION CHIEF - TERMINATED FROM CITY OF HUBER HEIGHTS WITHOUT HEARING - COURT OF APPEALS REVESES TRIAL JUDGE - ENTITLED TO DUE PROCESS HEARING BEFORE CITY’S PERSONNEL APPEALS BOARD
On Oct. 1, 2010, in State Of Ohio, Ex Rel. Johnny Holloway, Jr. v. Personnel Appeals Board, City of Huber Heights, the Court of Appeals of Ohio, Second Appellate District, Montgomery County, 2010 Ohio 4754; 2010 Ohio App. LEXIS 4032, reverses trial judge (3 to 0).
Johnny Holloway, Jr., was employed by the City of Huber Heights in the position of Battalion Chief in the City's Fire Division. On November 23, 2008, Holloway was terminated from his position. He filed an appeal of his termination to the Personnel Appeals Board of the City of Huber Heights (the "Board"). The Board refused to hear the appeal since an ordinance classified all Battalion Chiefs as “exempt” since they sometimes serve as Acting Fire Chief. He filed an appeal to a judge in Court of Common Pleas, who declined to reinstate him.
The Court of Appeals reverses (3 to 0), calling the ordinance a “pretext.”
“The foregoing analysis strongly suggests that designating Battalion Chiefs as assistants to the Director of Public Safety is nothing other than a pretext to remove them from the nonexempt service to which Section 8.04 of the Charter grants a right of appeal to the Personnel Appeals Board. Section 8.02 of the Charter identifies those positions which ‘constitute the “exempt service” of the City.’ The position of Battalion Chief of the Fire Division is not among them. Applying the canon of construction ‘expressio unius,’ meaning expression of one thing suggests the exclusion of others, compels the conclusion that the position of Battalion Chief is not in the exempt service. Therefore, per Section 8.04(B) of the Charter, the Personnel Appeals Board is charged by law to hear Holloway's appeal, and the City Council may not deprive Holloway of that right of appeal by adopting an ordinance that places Holloway in the exempt service…”
Johnny Holloway, Jr., was employed by the City of Huber Heights in the position of Battalion Chief in the City's Fire Division. On November 23, 2008, Holloway was terminated from his position. He filed an appeal of his termination to the Personnel Appeals Board of the City of Huber Heights (the "Board"). The Board refused to hear the appeal. A judge in Court of Common Pleas ruled for the city.
Battalion Chiefs should not be in the exempt classification. The City’s Charter, which is captioned "Exempt Service," states:
"All positions in the administrative service of the City shall be filled pursuant to open competitive examinations except the following, which shall constitute the 'exempt service' of the City:
(1) City Manager;
(2) Clerk of Council;
(3) Directors of Departments and their assistants, Division Heads, and the Director of Personnel;
(4) Assistant City Managers and assistants to the City Manager;
(5) Secretary to the Manager and personal secretaries to all heads of departments and division, or subunits thereof, and secretaries of boards and commission;
(6) City Attorney, assistant or Acting City Attorneys and the City's prosecutor and assistant prosecutors;
(7) Any office or position requiring professional or scientific skills or knowledge;
(8) Unskilled laborers, as determined by the Manager;
(9) Seasonal or part-time employees, as determined by the Manager;
(10) All officers and employees appointed or whose appointment is approved by the Council under its charter authority;
(11) Volunteer members of any fire department and members of any police auxiliary unit of the City; and
(12) Members of board, commissions and other agencies and all elected officials of the City."
City of Huber Heights enacted an ordinance in 2006 ordinance that removed Battalion Chiefs from the non-exempt classification:
“On February 14, 2006, on the recommendation of the City Manager, the Huber Heights City Council adopted Ordinance No. 2006-0-1617, which amended Section 137.03 of the Huber Heights Code. After acknowledging that the Huber Heights Charter provides for a Department of Public Safety headed by the Director of Public Safety, who administers the functions of the Police and Fire Departments, and that the job description for Battalion Chiefs allows them to act in the place of the Fire Chief when that officer is unavailable, the Ordinance provides, at Section 1: ‘The Fire Chief and Battalion chief(s) shall both serve, in addition to their other duties, as assistants to the Director of Public Safety with respect to all fire-related affairs.’ "
By classifying Battalion Chiefs of the Fire Division as assistants to the Director of Public Safety, Ordinance 2006-0-1617 establishes the position of Battalion Chief from which Holloway was terminated as an assistant to the Director of a Department, one of the classifications which Section 8.03(3) of the Charter places in the exempt service of the City. Because Sections 8.03 and 8.04 of the Charter limit appeals to the Personnel Appeals Board to those filed by ‘employees who are not exempt’ or those in the nonexempt service,’ the Ordinance operates to exclude Holloway from the class of non- exempt employees who have a right of appeal. The Board refused to hear Holloway's appeal for that reason.”
Trial court ruled against Battalion Chief:
“The court reasoned that Battalion Chiefs may act in the absence of the Fire Chief, who is an assistant to a Director of a Department, and that Battalion Chiefs exercise judgment and discretion typical of exempt employees. The court concluded that the Ordinance merely ‘labeled’ Battalion chiefs for what they in fact are: assistants to a Departmental Director.”
The Court of Appeals reverses trial court; Battalion Chiefs are entitled to a full, due process hearing before City of Huber Heights Personnel Appeals Board.
“Section 8.02(3) identifies ‘Directors of Departments and their assistants (and) Division Heads’ as positions in the nonexempt service. Battalion Chiefs serve under the direction of the Fire Chief, who is a Division Head, but Section 8.02(3) does not include assistants to Division Heads in the nonexempt service. Ordinance No. 2006-0-1617 nullifies that distinction by making both the Fire Chief and his Battalion Chiefs assistants to the Director of Public Safety, on the rationale that Battalion Chiefs can act in the place of the Fire Chief. However, the ordinance confers no additional duties on Battalion Chiefs in relation to those of the Director of Public Safety. Huber Heights conceded at oral argument that neither are Battalion Chiefs paid any additional salary or granted any additional authority on that account.”
***
Because the Board is not entitled to judgment as a matter of law on the petition that Holloway filed, the trial court erred when it granted summary judgment for the Board. The assignment of error is sustained and the case will be remanded to the trial court for further proceedings, consistent with this opinion.”
Legal Lessons Learned: Cities and other political subdivisions will be closely scrutinized when terminating a career employee without a due process appeal hearing. The City of Huber Heights may appeal this decision to the Ohio Supreme Court.
Article 6-41 (also 12-10)
CRIMINAL BACKGROUND CHECKS & RANDOM DRUG TESTING – D.C. FIRE & EMS DEPARTMENT – UNION APPEAL DISMISSED AS NOT RIPE SINCE FIRE CHIEF NOT YET IMPLEMENTED NEW POLICIES
On July 22, 2010, in Local 36 International Association of Firefighters v. Dennis Rubin & District of Columbia, the D.C. Court of Appeals (3 to 0), 999 A.2d 891, 2010 D.C. App. LEXIS 406, held that the union’s appeal will not be decided on the merits. The union had filed their lawsuit seeking a temporary restraining order and injunction before Fire Chief Dennis Rubin had actually implemented criminal background checks and random drug testing. The trial court, which ruled against the union, should have dismissed the union’s complaint for lack of “ripeness.”
The Court described the facts:
“As relevant here, in its complaint the Union requested a temporary restraining order, preliminary injunction, and permanent injunction directing the District and Rubin ‘to halt implementation of their criminal background check policy’ as set forth in the November 2007 order and the January 2009 memorandum. The Union alleged (1) that the announced programs violated the local and federal acts, and (2) that the result of any background check had to be provided only to the Department of Human Resources, not to FEMS [D.C. Fire & EMS] directly, as the Union feared it would.
There is no indication in the record that either Rubin's November 2007 order or his January 2009 memorandum has been implemented. In its complaint, filed at the end of February 2009, the Union warned of the consequences that would happen ‘[i]f Defendants [were] allowed to implement their criminal background check policy.’
At the trial on April 10, 2009, the Union conceded that although the District had announced in January that the program would begin in March, ‘[t]hat [i.e., implementation of the program] obviously hasn't happened yet.’ The Union nonetheless contended that the case was ripe for review because ‘defendants have stated that they [were] about to implement a very specifically described background check program.’ (Emphasis added.)
But in its briefs in this court filed on August 21, 2009, and November 25, 2009, the Union did not advise of any developments that have taken place since the complaint was filed or the trial was held. Rather, the Union continues to challenge the November 2007 order and the January 2009 memorandum, not any acts taken pursuant to those documents.
At trial, the court ruled that the Union's claim that the results of any background checks were required to go to the Department of Human Resources, not to FEMS, was not ripe for review because whether FEMS would request those records was ‘hypothetical.’ Without addressing ripeness, however, the court reached the merits of the Union's principal argument and concluded that the announced programs were not contrary to either the national or local acts because firefighters ‘have responsibility for the safety and well-being of children, the elderly or individuals with disabilities.’”
Federal statute, and a D.C. statute, both authorize criminal background checks for those who deal with children:
“The congressional statute is the National Child Protection Act of 1993, Pub. L. No. 103- 209, 107 Stat. 2490 (1993), codified, as amended, at 42 U.S.C. § 5119 et seq. The local statute is the Criminal Background Checks for the Protection of Children Act of 2004, D.C. Code § 4-1501.01 (2008).
For our purposes, the key provisions of the national act read as follows. Section 5119a (a)(1) authorizes States to ‘have in effect procedures . . . that require qualified entities designated by the State to contact an authorized agency of the State to request a nationwide background check for the purpose of determining whether a provider has been convicted of a crime that bears upon the provider's fitness to have responsibility for the safety and well-being of children, the elderly, or individuals with disabilities.’”
D.C. Government ultimately decides that all fire & EMS personnel need background checks, not just those in the Fire Prevention Bureau dealing with children.
“On July 25, 2006, the District adopted emergency rules that modified the coverage of the local act with respect to FEMS. Specifically, the July 25 rules provided that only ‘the Fire Prevention Bureau (FPB)’ within FEMS would be covered by the local act, ‘provided that the primary duties of any position designated as subject to the Act within the FPB shall require direct contact with children or youth, and the incumbent of the position would not otherwise be subject to a criminal background check or traffic record check in accordance with existing policies and practices for [FEMS].’ 53 D.C. Reg. 7276, 7282.
On May 5, 2008, the District reverted to its original understanding, and promulgated emergency rules that ‘delete[d] the language limiting agency coverage pursuant to the [local] Act for [FEMS] to specific organizational units within [FEMS].’ 55 D.C. Reg. 7145. Again, the District received no comments in response to the emergency rules, and the rules became final on July 28, 2008. 55 D.C. Reg. 8870.”
Legal Lessons Learned: FDs and EMS Departments need to conduct nationwide criminal background checks on all new sworn personnel. Random drug testing has traditionally been subject to collective bargaining. Columbus, Ohio FD, Cincinnati, Ohio FD, and numerous other random drug testing CBA provisions can be read at State Employment Relations Board site: http://www.serb.state.oh.us/ - SEARCH: FD random drug testing.
Article 6-40
EMPLOYMENT: OHIO FF INJURED IN LINE OF DUTY, RECEIVED TWO YEARS OF REGULAR PAY WHILE NOT WORKING, PER THE CBA – TAX COURT HOLDS THIS IS TAXABLE GROSS INCOME
On August 17, 2010, in John Thomas Bayse v. Commissioner Of Internal Revenue, U.S. Tax Court (Docket No. 22322-09S), 2010 Tax Ct. Summary LEXIS 142, the Tax Court held that the injured FF must pay taxes on the gross income he received from the City of Cleveland. He was injured while responding to a MVA on Jan. 19, 2005. Per the Collective Bargaining Agreement (CBA), he remained on full payroll while home for two years. He was granted a disability retirement pension from the Ohio Police & Fire Retire Board on Jan. 1, 2007.
The Court closely examined the provisions of the CBA: Facts as described by the Court:
“From the day of the accident through his retirement from the fire department in December 2006 (with the exception of 2 days when he attempted to work in 2005), petitioner was on hazardous duty injury status and was paid pursuant to the terms of a collective bargaining agreement (CBA) between the City of Cleveland and Cleveland Fire Fighters, Local 93 (the union).
Article VIII, paragraphs i and j, of the CBA provides terms for hazardous duty injury status pay. Paragraph i provides:
‘An employee who suffers a compensable injury on the job shall be paid at the straight time base rate for any absence from work during his regular shift on the day of the injury that is authorized in writing by the Safety Division Medical Officer.’
Paragraph j provides that a firefighter who qualifies for hazardous duty injury status will continue to be paid by the City of Cleveland as if he were still on duty, although he may not accrue additional sick and vacation days while on hazardous duty injury status. If a firefighter is on hazardous duty injury status for 2 years, the ‘employee shall apply for a permanent disability retirement pension under the laws of Ohio or return to normal duty with the Department.’
For injuries that are not classified as hazardous duty injuries, paragraph j of the CBA provides:
‘Injuries which are incurred by Fire Fighters while they are engaged in supportive duties or work which is incidental to active fire fighter duty are compensable through the Ohio Bureau of Workers' Compensation.’
Thus, if a firefighter sustains a hazardous duty injury, payment for the first 2 years is made by the City of Cleveland as if the firefighter were still on duty, whereas if the injury is sustained while engaged in supportive or incidental duties, payment is made from the Ohio Worker's Compensation system.”
IRS Audit For 2006 - $43,816.28: Following an audit of petitioner's 2006 Federal income tax return, on August 21, 2009, respondent mailed petitioner a notice of deficiency for 2006, which stated:
“It is determined that the income received from the City of Cleveland must be included in gross income because it does not constitute an amount received under a workmen's compensation act as compensation for personal injuries or sickness within the meaning of I.R.C. Section 104(a)(1). Taxable income is therefore increased by $43,816.28.”
Workers Comp Is Excluded: Under the IRS Code, one type of exclusion is section 104(a)(1) for "amounts received under workmen's compensation acts as compensation for personal injuries or sickness". Section 1.104-1(b), Income Tax Regs., provides that section 104(a)(1) excludes amounts received under a worker's compensation act "or under a statute in the nature of a workmen's compensation act which provides compensation to employees for personal injuries or sickness incurred in the course of employment." [Emphasis added.]
The fire fighter argues that he falls within this exception, since he was paid under the CBA, and the CBA had been signed by the City of Cleveland Mayor, thereby effectively binding the city. The Tax Court disagreed:
“Thus, when the language of a collective bargaining agreement is by legislative act incorporated by reference or otherwise into a municipal code, and by this measure is enacted into law, it meets the statutory and regulatory requirements described supra. Cf. Givens v. Commissioner, 90 T.C. 1145, 1149-1151 (1988). Otherwise, it is not considered to have the force and effect of law. Mere approval by the mayor or the city council of a collective bargaining agreement negotiated by a city and a union does not, without explicit incorporation into the city's code, meet the requirements described supra. See Rutter v. Commissioner, supra at 468; Brooks v. Commissioner, T.C. Memo. 1997- 568.”
Tax Court refers to precedence of a Revenue Ruling:
“The facts in Rev. Rul. 83-77, 1983-1 C.B. 37, are similar to those herein. That ruling involved a New York City police officer who was injured in the line of duty and was determined to be unable to perform regular police duties as a result of his injury. The police officer was ordered to remain off duty indefinitely. Under the terms of the collective bargaining agreement negotiated by the union and the City of New York, a police officer was entitled to leave with pay for the full period of his incapacity due to any illness, injury, or mental or physical defect, whether or not incurred in the line of duty. The collective bargaining agreement was consistent with a section of the New York City administrative code which permits payments of salary while a police officer was absent because of sickness or injury, whether or not service connected. The ruling gave two reasons why the payments to the police officer were not excludable from his gross income. First, and most relevant to the instant matter, the ruling stated that the union contract did not qualify as a statute inasmuch as it was not incorporated by reference or otherwise into the New York City code. And second, since the contract also applied to non-work-related injuries or illness, the ruling held that payments under the contract were not in the nature of worker's compensation.”
Legal Lessons Learned: It appears that a city council, by passing an ordinance “adopting” the CBA, can save taxes for injured FF.
CA: PUBLIC OFFICIAL LIED WHEN CLAIMED HE WON CONGRESSIONAL MEDAL OF HONOR, WHILE SERVING AS A MARINE - NEVER A MARINE AND NEVER WON THE MEDAL - 9th CIRCUIT NOW HOLDS THAT “STOLEN VALOR ACT” UNCONSTITIONAL BREACH OF FIRST AMENDMENT FREEDOM OF SPEECH
On August 8, 2010, in USA v. Xavier Alvarez, the 9th Circuit (2 to 1 decision), set aside the defendant’s conviction upon plea of guilty, finding the 3-year old statute is unconstitutional breach of First Amendment right of free speech. Unless U.S. Supreme Court reverses the 9th Circuit, the defendant will be relieved of his sentence of $5000 fine, and 416 hours of community service. He apparently was first person ever charged under this new statute. http://www.ca9.uscourts.gov/datastore/opinions/2010/08/17/08-50345.pdf.
The Court described the 2006 Stolen Valor Act, 18 U.S.C. § 704(b), (c):
“Although predecessor versions have existed since 1948, the current form of the Act was passed in 2006. In that year, Congress found that ‘[f]raudulent claims surrounding the receipt of the Medal of Honor [and other Congressionally authorized military medals, decorations, and awards] damage the reputation and meaning of such decorations and medals,’ and that ‘[l]egislative action is necessary to permit law enforcement officers to protect the reputation and meaning of military decorations and medals.” Pub. L. No. 109- 437, § 2(1), (3), 120 Stat. 3266, 3266 (2006).
Xavier Alvarez - series of bizarre lies:
“Xavier Alvarez won a seat on the Three Valley Water District Board of Directors in 2007. On July 23, 2007, at a joint meeting with a neighboring water district board, newly- seated Director Alvarez arose and introduced himself, stating ‘I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.’
Alvarez has never been awarded the Congressional Medal of Honor, nor has he spent a single day as a marine or in the service of any other branch of the United States armed forces. In short, with the exception of ‘I’m still around,’ his self introduction was nothing but a series of bizarre lies.
Court describes a “hobby of lying” by Alvarez:
“Apparently, Alvarez makes a hobby of lying about himself to make people think he is ‘a psycho from the mental ward with Rambo stories.’ The summer before his election to
the water district board, a woman informed the FBI about Alvarez’s propensity for making false claims about his military past. Alvarez told her that he won the Medal of Honor for rescuing the American Ambassador during the Iranian hostage crisis, and that he had been shot in the back as he returned to the embassy to save the American flag. Alvarez reportedly told another woman that he was a Vietnam veteran helicopter pilot who had been shot down but then, with the help of his buddies, was able to get the chopper back into the sky.
In addition to his lies about military service, Alvarez has claimed to have played hockey for the Detroit Red Wings, to have worked as a police officer (who was fired for using
excessive force), and to have been secretly married to a Mexican starlet.”
Two Court of Appeals judges find statute unconstitutional:
“The Act, as presently drafted, applies to pure speech; it imposes a criminal penalty of up to a year of imprisonment, plus a fine, for the mere utterance or writing of what is, or
may be perceived as, a false statement of fact—without anything more. The Act therefore concerns us because of its potential for setting a precedent whereby the government may proscribe speech solely because it is a lie. While we agree with the dissent that most knowingly false factual speech is unworthy of constitutional protection and that, accordingly, many lies may be made the subject of a criminal law without creating a constitutional problem, we cannot adopt a rule as broad as the government and dissent advocate without trampling on the fundamental right to freedom of speech.”
Court concludes that “most people lie” about some things:
“one’s height, weight, age, or financial status on Match.com or Facebook, or falsely representing to one’s mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway. The sad fact is, most people lie about some aspects of their lives from time to time.”
***
“Finding no appropriate way to avoid the First Amendment question Alvarez poses, we hold that the speech proscribed by the Act is not sufficiently confined to fit among the narrow categories of false speech previously held to be beyond the First Amendment’s protective sweep.”
Dissenting judge:
‘Indeed, no Congressional Medal of Honor was awarded to any soldier participating in the Gulf War, and for our conflicts over the past decade, only two were awarded for actions in Somalia, four for actions in Iraq, and two for actions in Afghanistan—all posthumously…. Alvarez’s statements dishonor every Congressional Medal of Honor winner, every service member who has been decorated in any away, and every American now serving. *** Alvarez’s knowing lie is not entitled to constitutional protection. Thus, there is no need to subject the Stolen Valor Act to strict scrutiny. I would hold that the Stolen Valor Act is constitutional as applied to him.”
Legal Lessons Learned: False claims of military service and metals received, whether by a firefighter in FD job application, or by a public official in comments, need to have negative consequences. Hopefully the United States will appeal and the U.S. Supreme Court will agree to hear the case, and uphold this important statute.
Article 6-38
U.S. SUPREME COURT: TEXT MESSAGES SENT BY SWAT TEAM SERGEANT - HE KNEW THEY COULD BE AUDITED BY CITY - NO VIOLATION OF FOURTH AMENDMENT
On June 17, 2010 in City of Ontario, California v. Jeff Quon, the U.S. Supreme Court (9 to 0), held in an opinion by Justice Kennedy, that the search of the text messages was reasonable, and did not violate Sergeant Quon’s Fourth Amendment rights. http://www.supremecourt.gov/opinions/09pdf/08-1332.pdf.
The plaintiffs in this case include Sergeant Quon, his wife, and also his mistress. The City, it its brief filed before the Court, was explicit about some of the texts:
“Some of the message ‘were directed to or from his wife, [plaintiff] Jerilyn Quon,’ who was a former Department employee, ‘while others were directed to and from his mistress, [plaintiff April Florio,’ who was a Department employee.”
http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/08-1332_Petitioner.pdf.
Justice Kennedy described in detail how this case arose:
“In October 2001, the City acquired 20 alphanumeric pagers capable of sending and receiving text messages. Arch Wireless Operating Company provided wireless service for the pagers. Under the City’s service contract with Arch Wireless, each pager was allotted a limited number of characters sent or received each month. Usage in excess of that amount would result in an additional fee. The City issued pagers to Quon and other SWAT Team members in order to help the SWAT Team mobilize and respond to emergency situations.
Before acquiring the pagers, the City announced a ‘Computer Usage, Internet and E-Mail Policy’ (Computer Policy) that applied to all employees. Among other provisions, it specified that the City ‘reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources.’ App. to Pet. for Cert. 152a.
In March 2000, Quon signed a statement acknowledging that he had read and understood the Computer Policy.
***
Although the Computer Policy did not cover text messages by its explicit terms, the City made clear to employees, including Quon, that the City would treat text messages the same way as it treated e-mails. At an April 18, 2002, staff meeting at which Quon was present, Lieutenant Steven Duke, the OPD officer responsible for the City’s contract with Arch Wireless, told officers that messages sent on the pagers ‘are considered e-mail messages. This means that [text] messages would fall under the City’s policy as public information and [would be] eligible for auditing.’ App. 30. Duke’s comments were put in writing in a memorandum sent on April 29, 2002, by Chief Scharf to Quon and other City personnel.
Within the first or second billing cycle after the pagers were distributed, Quon exceeded his monthly text message character allotment. Duke told Quon about the overage, and reminded him that messages sent on the pagers were ‘considered e-mail and could be audited.’ Id., at 40. Duke said, however, that ‘it was not his intent to audit [an] employee’s text messages to see if the overage [was] due to work related transmissions.’ Ibid. Duke suggested that Quon could reimburse the City for the overage fee rather than have Duke audit the messages. Quon wrote a check to the City for the overage. Duke offered the same arrangement to other employees who incurred overage fees.
Over the next few months, Quon exceeded his character limit three or four times. Each time he reimbursed the City. Quon and another officer again incurred overage fees for their pager usage in August 2002. At a meeting in October, Duke told Scharf that he had become ‘tired of being a bill collector.’ Id., at 91. Scharf decided to determine whether the existing character limit was too low—that is, whether officers such as Quon were having to pay fees for sending work-related messages—or if the overages were for personal messages. Scharf told Duke to request transcripts of text messages sent in August and September by Quon and the other employee who had exceeded the character allowance.
At Duke’s request, an administrative assistant employed by OPD contacted Arch Wireless. After verifying that the City was the subscriber on the accounts, Arch Wireless provided the desired transcripts. Duke reviewed the transcripts and discovered that many of the messages sent and received on Quon’s pager were not work related, and some were sexually explicit. Duke reported his findings to Scharf, who, along with Quon’s immediate supervisor, reviewed the transcripts himself. After his review, Scharf referred the matter to OPD’s internal affairs division for an investigation into whether Quon was violating OPD rules by pursuing personal matters while on duty.
The officer in charge of the internal affairs review was Sergeant Patrick McMahon. Before conducting a review, McMahon used Quon’s work schedule to redact the transcripts in order to eliminate any messages Quon sent while off duty. He then reviewed the content of the messages Quon sent during work hours. McMahon’s report noted that Quon sent or received 456 messages during work hours in the month of August 2002, of which no more than 57 were work related; he sent as many as 80 messages during a single day at work; and on an average workday, Quon sent or received 28 messages, of which only 3 were related to police business. The report concluded that Quon had violated OPD rules. Quon was allegedly disciplined.”
Justice Kennedy, writing for a unanimous Court, focused on Internal Affair’s limited review of Sgt. Quon’s text messages sent on duty:
“While it may have been reasonable as well for OPD to review transcripts of all the months in which Quon exceeded his allowance, it was certainly reasonable for OPD to review messages for just two months in order to obtain a large enough sample to decide whether the character limits were efficacious. And it is worth noting that during his internal affairs investigation, McMahon redacted all messages Quon sent while off duty, a measure which reduced the intrusiveness of any further review of the transcripts.
Sergeant Quon knew his text messages were subject to auditing, so he did not have a reasonable expectation of privacy:
“Even if he could assume some level of privacy would inhere in his messages, it would not have been reasonable for Quon to conclude that his messages were in all circumstances immune from scrutiny. Quon was told that his messages were subject to auditing. As a law enforcement officer, he would or should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on-the-job communications. Under the circumstances, a reasonable employee would be aware that sound management principles might require the audit of messages to determine whether the pager was being appropriately used. Given that the City issued the pagers to Quon and other SWAT Team members in order to help them more quickly respond to crises—and given that Quon had received no assurances of privacy—Quon could have anticipated that it might be necessary for the City to audit pager messages to assess the SWAT Team’s performance in particular emergency situations.
From OPD’s perspective, the fact that Quon likely had only a limited privacy expectation, with boundaries that we need not here explore, lessened the risk that the review would intrude on highly private details of Quon’s life. OPD’s audit of messages on Quon’s employer-provided pager was not nearly as intrusive as a search of his personal e-mail account or pager, or a wiretap on his home phone line, would have been. That the search did reveal intimate details of Quon’s life does not make it unreasonable, for under the circumstances a reasonable employer would not expect that such a review would intrude on such matters. The search was permissible in its scope.”
Legal Lessons Learned: The Supreme Court intentionally wrote a decision that narrowly applies to the facts in this case. There will undoubtedly be future “privacy” cases going to court. Fire & EMS Departments should have a written policy, with refresher training provided to all employees, that clearly provides that use of department telecommunication devices are subject to audit.
Article 6-37
OHIO: PROMOTIONS - NEWLY PROMOTED CINCINNATI LIEUTENANTS NOT ENTITLED TO BACK PAY FOR DELAYED PROMOTIONS - CITY HAD NO CHOICE BUT TO OBEY THE INJUNCTION WHEN ONE FF WENT TO COURT ON COMPLANT ABOUT REVISED ANSWER KEY IN GRADING THE EXAM
On June 18, 2010, in State of Ohio ex rel. Philip A. Worsham et al v. City of Cincinnati, Ohio Court of Appeals for First District, Hamilton, 2010-Ohio-2765, the Court (3 to 0) vacated the writ of mandamus and back pay awarded to six firefighters seeking promotion to Lieutenant. http://www.supremecourt.ohio.gov/rod/docs/pdf/1/2010/2010-ohio-2765.pdf.
The firefighters took the promotion exam on Nov. 22, 2005. Two weeks later the Cincinnati Civil Service Commission approved and posted the promotion-eligible list 05-35.
Another firefighter, James Inman, complained to the Civil Service Commission that the procedures used for creating the promotion exam and revising the answer key after a “gripe session” were improper. The commission determined that the procedures were proper.
Inman then “appealed” that decision to the Hamilton County Court of Common Pleas. The trial court reversed the commission’s decision and ordered that the lieutenant’s list be held invalid and that a new promotional exam be given or that the promotional exam be re-graded as originally given. The trial court also “ordered that the city promote Inman to the next available position in the rank of lieutenant and that, upon promotion, the city credit him with time, grade, and seniority equal to those of the last lieutenant promoted prior to the date of the court’s order.”
The city filed an appeal of the Inman injunction to the Court of Appeals, but the motion was overruled.
On June 6, 2008, the Court of Appeals issued its decision in Inman v. Civil Service Commission, 2008-Ohio-2707, http://www.supremecourt.ohio.gov/rod/docs/pdf/1/2008/2008-Ohio-2707.pdf, finding that the trial judge had no jurisdiction to hear Inman’s case.
“By Inman’s own admission in this appeal, the relief that he requested from the commission was an investigation into the procedures and methodology used for creating, grading, and modifying the exam for promotion list 05-35. The commission’s investigation for official abuse was authorized by Cincinnati Civil Service Commission Rule 2, Section 4. This section does not provide the employee requesting an investigation with the right to an evidentiary hearing before the commission. Nor does it provide the employee with the right to appeal from the result of the commission’s investigation.1 Moreover, because the commission’s consideration of Inman’s complaint was administrative rather than quasi-judicial in nature, Inman had no right of appeal pursuant to R.C. 2506.01.2.Thus, the trial court lacked subject-matter jurisdiction to entertain Inman’s ‘appeal.’
[Footnotes omitted.]
The City then proceeded with its promotion of lieutenants, including Philip Worsham and the other five plaintiffs in this case, each being promoted effective on the date of the Inman Court of Appeals decision, June 6, 2008.
These six new Lieutenants then asked the city for back pay and retroactive benefits, based on the original posting of the promotion eligibility list (Nov. 2005). The city refused. The lieutenants then filed a mandamus action in Court of Common Pleas, and a trial judge ruled in favor the six officers.
The city appealed, arguing that they were required to delay the promotions because of the injunction in the Inman case. The Court of Appeals agreed. While the firefighters do not have to prove the city acted in “bad faith” (Ohio Supreme Court decision in 1994 in State ex rel. Bednar v. North Canton, 1994-Ohio-89, 631 N.E. 2d 621), they still must prove the city wrongfully delayed the promotion. There was no proof of wrongful delay in this case.
“A city cannot ignore a court order enjoining a promotion. While the injunction existed, the city was forbidden by law from doing the act enjoined – promoting the relators [firefighters].
***
For this reason, we hold that the trial court erred by granting summary judgment in favor of the relator, by issuing a writ of mandamus awarding back pay and retroactive benefits, and by denying summary judgment to the city.”
Legal Lessons Learned: It is unfortunate that litigation one firefighter’s appeal slowed up promotions for many others.
Article 6-36
OHIO – RESIDENCY – CLEVELAND BATTALION CHIEF REINSTATED BASED ON OHIO SUPREME COURT DECISION – CITY ORDINANCE REQUIRING RESIDENCY IN CITY IS UNLAWFUL
On June 10, 2010, in Anthony E. Missig v. Cleveland Civil Service Commission, the Ohio Court of Appeals for the 8th District, Cuyahoga County, held 3 to 0, that the Cleveland Battalion Chief be reinstated to his old position. He was terminated in 2007 by the city’s Safety Director for not residing in the city. http://www.sconet.state.oh.us/rod/docs/pdf/8/2010/2010-ohio-2595.pdf.
The Court of Appeals held:
“based on the Ohio Supreme Court’s decision in Lima, this court now reverses the trial court decision and hereby orders that Anthony E. Missig be fully reinstated to his previous position.”
The Court referenced the Ohio Supreme Court’s 2009 decision in Lima v. State, 122 Ohio St.3d 155, 2009-Ohio-2597, 909 N.E.2d 616, http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-2597.pdf :
“held that: (1) Ohio Revised Code R.C. 9.481 was validly enacted pursuant to the general welfare clause of the state constitution (governing wages, hours, and employee health, safety, and welfare); and (2) the home-rule provision of the state constitution could not impair the legislature’s power to enact legislation pursuant to the general welfare clause.”
Ohio Revised Code 9.481(B)(1) states that “no political subdivision shall require any of its employees, as a condition of employment, to reside in any specific area of the state.” R.C. 9.481 was passed in January 2006 with an effective date of May 1, 2006. The Safety Director did not terminate Missig for violation of the residency requirement until July 10, 2007, well after the statute’s effective date.
Legal Lessons Learned: The battle over residency in Ohio, between the Ohio General Assembly, and cities citing their home rule authority, is now over.
Article 6-35
WEST VIRGINIA – NEGLIGENT HIRING – LAWSUIT MAY PROCEED - ALLEGATION THAT POLICE CHIEF FAILED TO THOROUGHLY INVESTIGATE NEW POLICE OFFICER’S BACKGROUND
On May 14, 2010, in Donna Woods, et al v. Town of Danville, West Virginia, et al, Civil Action No. 2:09-cv-0036, 2010 U.S. Distr. LEXIS 47666, a U.S. District Court judge held that a lawsuit may proceed to jury trial, including an allegation that the police chief was negligent in hiring a new police officer. The decision is instructive to the fire service since thorough background checks are also important in hiring firefighters and EMS.
The Court described the unfortunate detention at gun point of a young jogger, by a newly hired police officer:
“On August 10, 2008, Officer Arthur Jarrett was employed as a police officer for the Town of Danville, West Virginia ("Danville"). He was not a certified police officer. 1 He had been employed with the Danville police department for approximately eight days and had never worked as a police officer before taking the job.
[1. To become a "certified officer" in West Virginia, an applicant must undergo a sixteen-week, 850-hour intensive course at the West Virginia State Police Academy.]
In the early evening of August 10, 2008, a 911 dispatch broadcast a ‘Signal 12 with weapon’ (fight with a weapon in progress) in the town of Madison, West Virginia (‘Madison’). Madison and Danville neighbor one another. After a Madison police unit responded to the call, 911 issued a second dispatch for "any unit available" to back up the Madison unit. (Jarrett Dep. 69:11). Although he was a Danville, rather than a Madison, police officer, Jarrett responded to the second call. He was not individually dispatched, nor did he attempt to contact his Chief of Police before responding. On his way from Danville to Madison, Jarrett heard a radio bulletin describing the alleged suspect as a ‘[m]ale running down Main Street towards the car wash in a white tee shirt.’ (Id. at 75:9- 10). A unit from the Madison Police Department asked over the radio ‘if that was the one with the gun,’ and 911 responded that they were ‘unsure.’ (Id. at 75:12-13). Jarrett arrived in Madison and pulled his unmarked police car to the side of the road near the car wash, where he could observe anyone who might be running toward it.
Shortly thereafter, Jarrett observed a person running down Main Street toward the car wash in a white tee shirt. This person was Andrew Lee Adkins, a fourteen-year-old member of the Scott High School cross country team who was out for a run. Adkins was approximately five feet two inches tall and was of slender build. In addition to the white tee shirt, he wore black running shorts, a sport watch, and running shoes.
Seeing Adkins, Jarrett emerged from the patrol car with his firearm drawn and yelled to Adkins, ‘Get the fuck on the ground.’ (Adkins Dep. 20:16-17). Adkins put his hands up and asked Jarrett what he did wrong. Jarrett again ordered Adkins to get on the ground. Adkins complied while continuing to ask Jarrett what he did wrong and telling him he had the wrong person. Jarrett handcuffed Adkins and told him to get up. The tightness of the handcuffs caused Adkins pain. Jarrett then pulled Adkins off the ground by the handcuff chain, which Adkins claims caused additional pain, cuts, and bruising to his wrists.
Jarrett placed Adkins in the police car for a short time, after which he heard a radio transmission that caused him to realize that he had the wrong suspect. He released Adkins and said, ‘Sorry for the scare. You may go.’ (Adkins Dep. 35:21-22). Adkins ran back to his grandparents' house, which is located in Madison.
A lawsuit was filed by Adkin’s parents in state court against the Town of Danville and police officer Jarrett, alleging a violation of 42 U.S.C. 1984. This statute subjects to civil liability any person who, acting under color of state law, deprives an individual of his constitutional or federal rights. The plaintiffs allege that Jarrett violated Adkins's Fourth and Fourteenth Amendment rights by seizing him without reasonable suspicion and employing excessive force in doing so.
The defendants removed the case to federal court, where they filed motions to dismiss on basis of governmental immunity for the Town, and qualified immunity for the police officer. The judge denied these motions.
“Facts Regarding the Hiring and Retention of Officers
As part of his duties, Chief Boehm typically interviews every applicant for open officer positions. He testified that he conducts a criminal background check of all potential officers and contacts the references listed on their applications. Danville does not, however, conduct a psychological fitness-for-duty evaluation for officer applicants, nor has it considered making such evaluations part of the officer hiring process.
Jarrett's employment history includes military service in the Navy, followed by spotty employment with various companies. Two years after enlisting in the Navy in 1991, Jarrett was discharged ‘under other than honorable conditions’ because of unlawful drug use. (Ex. E, Pls.' Resp. Opp'n Mot. for Summ. J. Danville). Between the time of his Navy discharge and his job with Danville, Jarrett held more than ten jobs. Jarrett was fired from his job at Wal-Mart for taking a customer's car out and spinning its tires on the concrete. He quit his job at Independence Coal Company because he was ’pissed off’ for getting written up. (Jarrett Dep. 23:4-9). He was terminated from his job driving for Cuyahoga Ambulance of Cleveland, Ohio, because he had points on his license and Cuyahoga's insurance company would not cover him.
There is no evidence that Chief Boehm knew about or even looked into Jarrett's termination from Wal-Mart or Cuyahoga Ambulance, or the disciplinary action taken at Independence Coal. At the time of Jarrett's hiring, Chief Boehm was unaware that Jarrett had been other than honorably discharged from the Navy for drug use.
Chief Boehm did contact a few of Jarrett's listed references, including a deputy sheriff who had ‘known [Jarrett] for several years.’ (Ex. D, Pls.' Resp. Opp'n Mot. Summ. J. Def. Danville). The deputy first told Chief Boehm that ‘this would be a good job for [Jarrett],’ but later called back and explained to Chief Boehm that Jarrett ‘has problems with anger.’ (Id.) Chief Boehm later indicated that he recalled "that [Jarrett] had a problem with anger,’ but could not remember whether he found out before or after he had hired him. (Boehm Dep. 70:11-14).”
The trial judge cited West Virginia court decisions on the duty the Police Chief to conduct a thorough background check:
“The court must also consider "the nature of the employee's job assignment, duties and responsibilities." McCormick v. W. Va. Dep't of Public Safety, 503 S.E.2d 502, 507 (W. Va. 1998) (per curiam). The duty with respect to hiring and retention increases ‘as the risks to third persons associated with a particular job increase.’ Id. at 507.
The plaintiffs present issues of fact regarding whether Danville reasonably investigated Jarrett's background when making its hiring decision. The employer's duty is heightened in this case due to the nature of police work. Police officers are, among other things, permitted to carry guns, use necessary force to effect arrest, and enter civilian residences in certain circumstances. In light of this heightened duty, a reasonable jury could find that Danville did not adequately investigate Jarrett's military service, conduct a psychological fitness for duty evaluation, or adequately follow up on Jarrett's references. Given the information about Jarrett's propensity toward anger, his spotty employment history, and the facts surrounding his other-than-honorable discharge from the Navy, the plaintiffs have sufficiently alleged genuine issues of material fact on their claims of negligent hiring and retention. Danville's motion on these claims is therefore DENIED.”
Legal Lessons Learned: A thorough background check is also important in hiring firefighters and EMS personnel.
Article 6-34
OHIO: SECURITY OFFICER FIRED AFTER REPEATED VIOLATINS OF COMPANY RULES, INCLUDING SLEEPING AT HER POST - OHIO SUPREME COURT HOLDS SHE WAS PROPERLY DENIED TEMPORARY TOTAL COMPENSATION FOR PRIOR WORKPLACE INJURY SINCE SHE IN EFFECT “VOLUNTARILY ABANDONED” HER JOB
On Jan. 6, 2010, in The State Ex Rel. Galligan v. Industrial Commission of Ohio, 124 Ohio St.3d 233, 2010-Ohio-3, the Ohio Supreme Court (7 to 0) held that the Industrial Commission did not abuse its discretion in finding that Galligan’s discharge constituted a voluntary abandonment of her job. http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-ohio-3.pdf.
Temporary Total Disability is defined in Ohio Rev. Code 4123.56(A); it provides compensation for the injured worker’s loss of earnings while healing from an injury. An injured worker is eligible for temporary total disability if the employee is not capable of performing the work they were doing when injured, as long as they have not abandoned their employment and one of the conditions for terminating temporary total set forth in R.C. 4123.56(A) are not present.
Temporary total compensation may be terminated where:
• the employee has returned to work;
• the employee's physician has made a written statement that the employee can return to the former position of employment;
• employment within the employee's physical capabilities is made available; or
• the employee reaches maximum medical improvement.
http://codes.ohio.gov/orc/4123.56.
Betty J. Galligan was hired as a security officer by Tenable Protection Services, Inc. in 2006. She was fired a year later after accumulating approximately 24 citations – oral and written – for violating work rules. The violations included: inappropriate sexual remarks, time-sheet irregularities, failure to remain at her post, sleeping at her post, insubordination, breach of confidentiality protocol, and multiple incidents of tardiness and absenteeism.
She had already received seven of these violations in August, 2006, when she was injured on the job. On Nov. 6, 2006, after receiving a citation for insubordination, her supervisor warned her in writing that “any further violations of any company policy will result in immediate termination.” Less than three weeks later, a Supervisor found her sleeping at her post. This also occurred six days later, and then again on Feb. 23, 2007, and she was fired.
A month after her dismissal, she filed a workers comp claim for Temporary Total Disability (TTD). The Industrial Commission denied the claim, finding that Galligan’s discharge constituted a “voluntary abandonment of employment” under the 2005 Ohio Supreme Court decision in Louisiana-Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401, 650 N.E.2d 469.
Galligan filed an appeal to the Ohio Court of Appeals for Franklin County. The court appointed a Magistrate, who ruled in her favor because her former employer, Tenable Protective Services, Inc. failed to submit into the appellate record their Employee Handbook. The Court of Appeals agreed.
The employer appealed to the Ohio Supreme Court, which reversed the Court of Appeals, holding:
“Voluntary departure from employment can bar temporary total compensation. *** Employment discharge can be considered a voluntary abandonment if it originates from behavior that the claimant willingly undertook.”
The failure to submit the Employee Handbook into the record is not critical.
“In this case, in lieu of the employee handbook, Tenable submitted Galligan’s disciplinary file into evidence. This evidence establishes that Galligan was on written notice from a prior “Employee Consultation” sheet that sleeping at her security post – the offense for which she was eventually fired – was a violation of company policy. This documentation satisfies Louisiana-Pacific’s requirements that the prohibited conduct be both clearly defined and know to Galligan.”
Legal Lessons Learned: Fire & EMS departments should document employee violations of Employee Handbook. In Ohio, an employer can defeat a TTD claim arising from a workplace injury if it can prove the employee was terminated for repeated violations of workplace written rules.
Article 6-33
MA: FIRE CHIEF – FIRST AMENDMENT - CHIEF CANNOT SUE TOWN FOR 15 DAY SUSPENSION - AT PRESS CONFERENCE AT THE SCENE OF STRUCTURE FIRE WITH DEATH OF TWO CHILDREN FIRE CHIEF / INCIDENT COMMANDER CRITICIZED REDUCED STAFFING
On March 10, 2010, in Chief Charles D. Foley, Jr. v. Town of Randolf, Massachusetts, the U.S. Court of Appeals for the 1st Circuit, http://www.ca1.uscourts.gov/, held that Chief Foley “was not speaking as a citizen and that that he consequently has no First Amendment cause of action.” The Fire Chief was suspended for 15 days, after his comments made on May 17, 2007, where he was Incident Commander at a 5 am fire at single-family residence. Two children died on second floor – ages 17 and 10.
Later that morning the State Fire Marshall convened three separate press conferences, where the State Fire Marshall, his lead investigator, and the Fire Chief answered questions. See Chief Foley and State Fire Marshal’s photo and article about the opinion:
http://www.boston.com/news/local/breaking_news/2010/03/appeals_court_f.html.
The 1st Circuit wrote that Chief Foley discussed manpower cuts during the press conferences:
“Chief Foley noted that the Department had lost positions each year since 2002 and that the Department’s response times had increased over the same period. While Foley could not definitely state that the outcome in this particular fire would have been different if the Department had been better staffed, he indicated that the operation would have gone more professionally and more according to standard if the Department had more manpower.”
In response to more press questions, he commented about the Massachusetts statute which limits property tax increases by municipalities, and that the voters in the town have defeated overrides for two years in a row. The Chief is quoted as telling the press:
“I’ve been asking to replace the fire fighters here in the Town over the last five years and it seems to have fallen on deaf ears.”
The Fire Chief filed a lawsuit in U.S. District Court after his suspension for 15 days. The trial judge granted the town’s motion for summary judgment, and the Chief filed an appeal. The Court of Appeals agreed with the dismissal, focusing on the U.S. Supreme Court’s decision in Garcetti v. Ceballo, 547 U.S. 410 (2006).
Note: in the Garcetti case, a Los Angeles County Assistant District Attorney filed a lawsuit, claiming he was disciplined after publicly criticizing the legitimacy of a deputy sheriff’s search warrant in a drug case. The U.S. Supreme Court held, 5 to 4, that he had no First Amendment claim because his statements were made as a public employee, not as a private citizen.
The 1st Circuit held that the Garcetti decision precluded Fire Chief Foley from a 1st Amendment claim:
“In Garcetti, the Court held that when public employees make statements ‘pursuant to their official duties,’ they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communication from employer discipline. 547 U.S. at 421. This is so because ‘employers have the heightened interests in controlling speech made by an employee in his or her professional capacity.’”
The 1st Circuit three-judge unanimous opinion stated:
“We emphasize that our holding is limited to the particular facts of this case. Under the circumstances of the press conference discussed above, there could be no doubt that Foley was speaking in his official capacity and not as a citizen. However, as the district court noted, had Foley voiced his concerns and frustrations in another forum – at a town meeting, in a letter to the editor, or even in a statement to the media at a different time and/or place – we might characterize his speech differently.”
Legal Lessons Learned: Incident Commanders at the scene of an emotional tragedy should consider using a Public Information Officer to deal with the press. Fire Chiefs and other public officials are not protected from discipline when “going to the press” about official business.
Article 6-32
MONTANA: AGE DISCRIMINATION – STATE SUPREME COURT THROWS OUT THE 34-YEARS-OF-AGE RESTRICTION ON HIRING FULL TIME FIREFIGHTERS
On August 11, 2009, in Steven Jaksha v. Butte-Silver Bow County, the Supreme Court of Montana, http://fnweb1.isd.doa.state.mt.us/idmws/custom/sll/SLL_FN_Home.htm, held that the state statute imposing the 34-year-old upper limit was unconstitutional. While the Court decided this matter based on Montana law, the decision is significant since there is continuing litigation throughout the nation on age restrictions for new hires.
The Montana Supreme Court held:
“We declare that Sec. 7-33-4107, MCA, violates the equal protection clause of the Montana Constitution and is therefore unconstitutional.”
The Court declined to order the County to pay any damages, since they were following the statute, and declined to order him to be hired since he never went through the examination and background check process. Jaksha is now able to reapply since there is no longer any age restriction.
Steven Jaksha was born in Butte, Montana in 1970, and applied to become a County firefighter numerous times beginning in 2000. He applied again in 2004, and took the standardized written test and physical exam offered by the Montana Firefighters’ Testing Consortium (run by a group of Montana FDs). He was ranked SECOND on their list, tied with another applicant.
On Jan. 31, 2005, the County Executive sent a letter to the County Commissioners advising he intended to offer appointments to the three top firefighters on the list, including Jaksha, as openings occurred. The top applicant was hired in May, 2005. In June, 2005, the second opening occurred. Since Jaksha was 35 years old, the position went to the other applicant (age 34).
Sec. 7-33-4107 of the Montana Code Amended (MCA) provides, in part:
“The qualifications of firefighters shall be that they:
(1) Shall not be more than 34 years of age at the time of original appointment….”
Jaksha filed a lawsuit claiming age discrimination. The trial judge decided to submit the matter to a jury, and instructed the jury to decide if the 34-years-old age limitation was based on a bona fide occupational qualification (BFOQ) due to the rigors of the tasks inherent in being a firefighter. After a jury trial, where numerous witnesses testified, the jury found for the County.
The Montana Supreme Court held that it is a judge’s role to determine the constitutionality of a statute, not a jury. The Court found that statute violated the “equal protection clause” of the Montana Constitution:
“No person shall be denied the equal protections of the law.”
The Court found it significant that the state legislature n 1985 dropped the mandatory age retirement. While safety is an important consideration in hiring a firefighter:
“[T]he question is whether place an age limitation of 34 years is rationally related to achieving that objective. We conclude that it is not. ***
Without any factual or empirical basis for drawing a cut-off point at 34 years of age, the limitation in Sec. 7-33-4107, MCA, is wholly arbitrary. The fact that firefighters in their 50’s can perform the function competently demonstrates that this age limitation is without any rational basis, and is not rationally related to the statute’s objective.”
Legal Lessons Learned:span style="mso-spacerun:yes"> Similar litigation is occurring in several states.
Article 6-31
OHIO: EMS PERSONNEL JOINED TOWNSHIP - ORIGINALLY APPOINTED AS “PARAMEDIC / FIREFIGHTERS” - PROPERLY IN PERS RETIREMENT SYSTEM UNTIL REAAPOINTED AS “FIREFIGHTERS”
On Dec. 4, 2009 in Troy J. Bernard, et al. v. Perry Township, OP&F and PERS, Ohio Court of Appeals for 6th District, Wood County, 2009 Ohio 6345, 2009 Ohio App. LEXIS 531, seven public employees filed a lawsuit claiming they should have been in Ohio Police & Fire Disability & Pension Fund (OP&F) instead of Ohio Public Employees Retirement System (OPERS) because some of their duties include firefighting. The trial judge had granted summary judgment for all defendants; the Court of Appeals affirmed.
Jan. 1, 1996, Perry Township entered into an agreement with the Perry Township Emergency Medical Service Employees, whereby paramedics would be Township employees, classified as “paramedic / firefighters” and they would be enrolled in). In 1999, another agreement was signed, with the paramedics remaining in OPERS.
In 2003, Perry Township adopted a resolution changing their classification to “firefighter / paramedic” (intentionally reversing the former “paramedic / firefighter” classification). This change made the paramedics part of the firefighter union, and they began participating in OP&F. Their job duties remained the same – vast majority of time was EMS, and occasionally performed firefighter duties.
OP&F was established by the Ohio legislature as a disability and pension fund for a “member of a police department” or a “member of a fire department.” Ohio Rev. Code 742.01. Any person who commenced employment as a full time firefighter with a fire department after Nov. 8, 1990 must be in OP&F. Full time firefighters in FDs who were in OPERS prior to that date could elect to transfer credits to OP&F. Ohio Rev. Code 742.515.
Townships have the authority to appoint firefighters to their FD. Ohio Rev. Code 505.38. The seven plaintiffs argue that since some of their duties when hired in 1996 involved firefighting, the Township should have appointed them as “full time firefighters” and placed them in OP&F.
The Court of Appeals disagreed.
“Here, Perrysburg clearly did not intend appellant’s employment status to constitute ‘full- time firefighter’ until 2003, when the trustees formally acted to ‘designate’ appellants as such – whether it is construed as a ‘technical’ appointment or not. Therefore appellants’ assignment of error is not well-taken.”
Legal Lessons Learned: When becoming an employee of a Township or any other political subdivision, confirm your job classification and your pension system.
Article 6-30
FED: AGE DISCRIMINATION – REQUIREMENT THAT ALL DEA SPECIAL AGENTS BE 37 OR YOUNGER WHEN HIRED DOES NOT VIOLATE AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA)
On
Oct. 20, 2009, in Paula Albert, et. al v. Eric Holder, Attorney General of the United States, 2009 U.S. Dist. LEXIS 96770, a U.S. District Court Judge for the Eastern District of Michigan, dismissed the lawsuit by seven Drug Enforcement Agency employees who had applied to become Special Agents, but were rejected because they were each over the age of 37 when they applied. They are employed as inspectors and other non-law enforcement positions.
The Court described the special status of Law Enforcement Officers (LEOs) in the Drug Enforcement Administration:
"Special Agents, because of their LEO status, are entitled to enhanced benefits that Diversion Investigators are not. For example, Special Agents are eligible for retirement at age 50 with 20 years of service, 5 U.S.C. § 8336(c), and supplemental pay, 5 U.S.C. § 5305. Special Agents, as LEOs, are also subject to a maximum initial entry age authorized by statute. See 5 U.S.C. § 3307. The maximum initial entry age statute, however, does not apply to Diversion Investigators, as they are not LEOs. DEA employees' classification as LEO or non-LEO is, thus, determinative of significant employment conditions and benefits. *** The Department of Justice (DOJ) established a maximum age of 37 for initial entry into LEO positions within the DEA, including the Special Agent position. (Def.'s Mot., Ex. E.) Because Plaintiffs were older than the maximum initial entry age, their applications for Special Agent were denied."
The ADEA was enacted to protect employees age 40 for age discrimination:
"Congress passed the ADEA in 1967 to combat improper treatment of federal employees on the basis of age. The statute currently states, in part, that ‘[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age ... shall be made free from any discrimination based on age." 29 U.S.C. § 633a(a)."
However, Congress enacted other legislation that allows Federal agencies to impose an age limit on new hires of law enforcement officers:
"In 1974, Congress enacted Public Law 93-350 amending 5 U.S.C. § 3301 et seq. with respect to the retirement of certain law enforcement personnel. This statute was a ‘major piece of legislation designed to enhance the "youth and vigor" of federal law enforcement.’ Stewart v. Smith, 673 F.2d 485, 487 (D.C. Cir. 1982). Along with provisions on mandatory retirement, 5 U.S.C. § 8335(b), and incentives for early retirement, 5 U.S.C. § 8339(d), Public Law 93-350 provided federal agencies employing LEOs the authority to set maximum initial entry ages for appointment to those law enforcement positions. Specifically, 5 U.S.C. § 3307 provides:
(d) The head of any agency may determine and fix the ... maximum limits of age within which an original appointment may be made to a position as a law enforcement officer ..., as defined by section 8331 (20) [CSRS] ...
(e) The head of an agency may determine and fix the maximum age limit for an original appointment to a position as a ... law enforcement officer, as defined by section 8401(17) [FERS] …5 U.S.C. § 3307 (emphasis added)."
Congress has subsequently lifted most mandatory retirement ages, but it did not alter mandatory retirement ages for law enforcement officers (LEOs), nor did it alter the authority of agencies to have age limits on hiring law enforcement agents:
"In 1978, Congress amended the ADEA when it enacted the Age Discrimination in Employment Act Amendments of 1978. The 1978 amendments eliminated most federal maximum age limits, however, it left untouched the mandatory maximum retirement age limits for LEOs. The amendments also left, undisturbed, federal agencies' authority, under 5 U.S.C. § 3307, to set maximum initial entry age limits for LEO positions."
Plaintiffs also claimed they were misclassified by the DEA, and that they should have been classified as LEOs. The Court rejected this claim, and referred them to the Office of Personnel Management appeal process.
Legal Lessons Learned: Many states have also enacted statutes imposed minimum age for hiring of career firefighters who will be in the state pension program. Increasingly, such statutes have come under attack. For example, the Montana Supreme Court, on Aug. 11, 2009 in Steven Jaksha v. Butte-Silver Bow County held that the Montana statute which disqualified those over 34 from original appointment as a County firefighter was unconstitutional. The Court held unanimously that the statute violated the Equal Protection Clause of the Montana Constitution, particularly in light of the fact that in 1985 the State Legislature repealed the mandatory retirement age of firefighters. The Court wrote, "While the working life of a firefighter who begins work at age 35 or later may be shorter than that of an individual who begins at an earlier age, this does not in any way imply or demonstrate that public or firefighter safety would be compromised." http://fnweb1.isd.doa.state.mt.us/idmws/custom/sll/sll_fn_home.html; see also www.firehouse.com, Aug. 13, 2009, "Montana Court Overturns Firefighter Age Limit."
Article 6-29
PA: AMERICAN FLAG PATCHES ON FD LOCKERS - U.S. CODE SPECIFICALLY ALLOWS FLAG PATCH ON FIREFIGHTER UNIFORMS
On October 19, 2009, a Chester City, PA firefighter was reinstated after his suspension for two day without pay for refusing to remove all postings on his locker, including an American flag patch. The Fire Commissioner and the IAFF reached a sensible resolution; they would follow the U.S. Code provisions on display of the flag.
http://cms.firehouse.com/content/article/printer.jsp?id=66218;
According to an Oct. 24, 2009 story in the Philadelphia Enquirer, the Fire Commissioner, who is an African American, had earlier ordered all items removed from the lockers in response to a racially charged cartoon that had been posted by an African-American FF on his own locker.
"Over the summer, Robert Butler, 48, a 15-year veteran, posted a cartoon on his locker that depicted two black minstrel characters and included a racial slur. Butler, who is black, said he posted the cartoon as a protest against the department's union leadership, who he says have targeted him for discipline."
http://cms.firehouse.com/content/article/article.jsp?id=66320§ionId=46.
The U.S. Code, Title 36, Section 176, "Respect for flag"provides in part:
"No part of the flag should ever be used as a costume or athletic uniform. However, a flag patch may be affixed to the uniform of military personnel, firemen, policemen, and members of patriotic organizations. The flag represents a living country and is itself considered a living thing. Therefore, the lapel flag pin being a replica, should be worn on the left lapel near the heart."
http://www.usflag.org/uscode36.html#176 .
Although the U.S. Code does not include does not specifically include a firefighter’s locker, in many stations these lockers can be observed by members of the public touring a fire station. Putting a flag patch on a locker, properly aligned, appears to be in keeping with the "spirit"of the 1942 statute. The opening sentence of Section 176 provides:
"No disrespect should be shown to the flag of the United States of America; the flag should not be dipped to any person or thing. Regimental colors, State flags, and organization or institutional flags are to be dipped as a mark of honor."
Legal Lessons Learned: It is appropriate to have a FD policy which regulates items placed on FD lockers, particularly items that are racially charged. An American flag patch, however, does not appear to violate the spirit of the U.S. Code provision on "Respect for the flag."
Article 6-28
NEW YORK: TWO FORMER VOLUNTEER FIREFIGHTERS MAY SUE FOR RETALIATION – MADE COMPLAINTS TO OSHA AND STATE SAFETY AGENCY – FEDERAL JUDGE COMMENTS ABOUT FD ACTING LIKE "FIVE YEAR OLDS"
On Sept. 2, 2009, in Joel Shanks and Ricky Shanks v. Village of Catskill Board of Trustees, et al,
a federal judge on the U.S. District Court for the North District of New York, 2009 U.S. Dist. LEXIS 79018, denied the FD’s motion to dismiss the lawsuit. Former volunteer firefighters Joel Shanks and Ricky Shanks may proceed to trial on their First Amendment retaliation claim that the Village of Catskill FD terminated them because they reported safety violations to OSHA and to the NYS Public Employee Safety & Health Bureau (PESH).
The Court made the following unusual comment in its opening sentence:
"This First Amendment retaliation action presents another example of what happens when grown men act like five year olds."
Outdated aerial ladder inspection;
Lack of safety equipment;
Firefighters with facial hair wearing SCBAs;
Outdated equipment;
Lack of training and standards;
Failure to follow OSHA standards.
Thereafter the plaintiffs allege they suffered immediate retaliation, including comments by a Village Board member and a Fire Department Chairperson – if they find out who filed the complaint, they were "going to take care of business." Oct. 26, 2005 investigation by PESH, a Lieutenant said that whoever made the complaint would be fired. The volunteer Fire Chief allegedly said if he became a paid village fire chief, he would "throw out the scumbag Shanks boys."
Improper vehicle maintenance;
Unqualified operators;
Unrepaired equipment;
Falsification of paperwork;
Outdated aerial ladder inspections.
Harassment: Joel Shanks alleges that firefighters would park outside his home and yell insults, and blast air horns and sirens late at night. [Numerous other alleged acts of retaliation are described by the Court. Since these are mere allegations, they are not reported here.]
Court refuses to dismiss the lawsuit – First Amendment Retaliation – "Balancing test"by U.S. Supreme Court in Pickering v. Board of Education, 391 U.S. 563 (1968).
A. First Amendment Retaliation Standard
"[A] public employee may establish a First Amendment retaliation claim against his governmental employer under 42 U.S.C. § 1983 upon proof that: (1) his or her speech was constitutionally protected; (2) he or she suffered an adverse employment action; and (3) a causal connection exists between the speech and the adverse employment action."
If these three factors are satisfied, the government may still avoid liability if it makes one of two showings. The government may either (1) demonstrate by a preponderance of the evidence that it would have taken the same adverse action regardless of the protected speech, or (2) show that the plaintiff's expression was likely to disrupt the government's activities, and that the likely disruption was sufficient to outweigh the value of the plaintiff's First Amendment expression." [Footnotes and case citations deleted.]
***
1. Protected Speech
"The First Amendment protects a public employee's speech only when it is made as a citizen on matters of public concern rather than as an employee on matters of personal interest.
In the present case, Joel Shanks reported various Company safety violations to OSHA and PESH in October of 2005, as described above. Ricky Shanks did the same in January of 2006. Defendants concede that these complaints clearly qualify as speech on matters of public concern under the First Amendment."
2. Adverse Employment Action
"In the present instance, the verified complaint paints a picture wherein plaintiffs have been subjected to a sustained, systematic course of verbal harassment, threats, ostracism and generally demeaning behavior in order to drive them out of the Company. Further, each of the firefighter defendants, and many of the Company and Village Board defendants, allegedly took part in or failed to stop this behavior."
3. Causation
"The last showing which must be made for a plaintiff to establish a First Amendment retaliation claim is a causal relationship between the protected speech and the adverse employment action. *** Accordingly, plaintiffs have adduced sufficient evidence to allow a jury to reasonably find that defendants' adverse actions were motivated by retaliatory animus."
4. Government Justification
"Under the Pickering test, a government employer may fire an employee for speaking on a matter of public concern if (1) the employer's prediction of disruption is reasonable; (2) the potential disruptiveness is enough to outweigh the value of the speech; and (3) the employer took action against the employee based on this disruption and not in retaliation for the speech."
"In applying this balancing test, courts may consider whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise.
***
"Here, defendants invoke the Pickering balancing test and rely on two cases - Janusaitis v. Middlebury Volunteer Fire Dept., 607 F.2d 17 (2d Cir. 1979) and McClernon v. Beaver Dams Volunteer Fire Dept., Inc., 489 F. Supp. 2d 291 (W.D.N.Y. 2007) - in contending that their actions were justified due to their interest in maintaining an "esprit de corps" among the Company firefighters. The court cannot agree."
"In Janusaitis, the volunteer firefighter plaintiff was terminated after he threatened to inform the IRS of accounting irregularities within the fire department, indicated he would sue after such threats led to his suspension, threatened to run a negative newspaper article on the department, and eventually did publish such an article. See Janusaitis, 607 F.2d at 18-19. Subsequently, the plaintiff filed a First Amendment retaliation claim, which the district court dismissed. Id. at 25. On appeal, the Second Circuit affirmed, finding that "[t]he appellant's use of threats and his impatience with the process of investigation and correction threatened institutional efficiency by the manner, time and place in which it was delivered." Id. at 26."
"Similarly, in McClernon, the volunteer fire chief plaintiff sent a letter to various government officials, agencies and surrounding departments complaining that those departments had received grants despite the fact that they didn't need the money or had misappropriated funds. See McClernon, 489 F. Supp. 2d at 292-94. Thereafter, the plaintiff was terminated upon a finding that his letter had a "detrimental impact" on the department and its relationship with neighboring departments, and a First Amendment retaliation claim was correspondingly filed. Id. at 295. In dismissing such claim, the district court found defendants' termination of the plaintiff was justified "on grounds that the plaintiff's speech was damaging to the Department and detrimental to the functioning of the Department," and because "the purpose of the letter was not to expose public wrongdoing or corruption, but instead, served as a vehicle for [the plaintiff] to express his frustration that his department had again been passed over for receipt of grant money." Id. at 296-97."
"The facts of this case differ greatly from those present in McClernon and Janusaitis. Here, defendants point to no evidence indicating plaintiffs made openly abrasive complaints or threats to members of the Company or other departments. Rather, plaintiffs' safety complaints were made anonymously to OSHA and PESH, which indicates a desire to maintain harmony within the Company. This weighs heavily against the defendants. See Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987) (finding firefighter's complaints about gender discrimination and closed department meetings were not so abrasive or disruptive as to justify termination). Further, insofar as plaintiffs' speech addressed the adequacy of Company training and the integrity of Company equipment, it touched on matters of far greater public concern than complaints about accounting practices or the disbursement of grant money. Indeed, plaintiffs' complaints went to the very heart of the Company's ability to effectively and safely perform its public function. Finally, while there is certainly evidence that plaintiffs would not be welcomed back into the Company, defendants have presented no evidence that the regular operation of the Company was significantly disrupted by plaintiffs' speech. See id. at 58-59."
"Thus, given the great public concern of plaintiffs' speech, the non-abrasive manner in which it was made, and the relatively slim evidence of Company disruption resulting there from, the court finds that defendants' interest in maintaining an esprit de corps did not outweigh plaintiffs' exercise of free speech. Additionally, even if the court were to assume that plaintiffs' speech caused a significant disruption in the functioning of the Company, there is, as discussed above, a plethora of evidence indicating that defendants' adverse action was not in response to such disruption, but rather in retaliation for plaintiffs' speech. See Locurto, 264 F.3d at 166-67 (stating "even if the Pickering balance is resolved in the employer's favor, the employee may still demonstrate liability by proving that the employer disciplined the employee in retaliation for the speech, rather than out of fear of the disruption’ (internal citations and quotation marks omitted).’ Accordingly, defendants' motion for summary judgment on plaintiffs' First Amendment retaliation claim is denied." [Citations and footnotes omitted.]
Legal Lessons Learned: FDs must be very cautious when disciplining a member who has made an OSHA or other safety complaint. Firefighters should also be cautious in their public criticism of their FD; in 2006 the U.S. Supreme Court in Garcetti v. Ceballos, 547 U.S 410 (2006) held that when public employees make statements pursuant to their official duties, the Constitution does not insulate their communication from employer discipline.
Article 6-27
PA – SUBROGRATION - CITY POLICE OFFICER WAS OUT OF WORK FOR 9 YEARS AFTER ON DUTY COLLISION WITH COUNTY VEHICLE – OFFICER REACHED SETTLEMENT IN LAWSUIT AGAINST THE COUNTY - CITY HAS A RIGHT TO REIMBURSEMENT FOR WAGES AND MEDICAL EXPENSES PAID TO OFFICER
On April 23, 2009 in George V. Cole v. City of Wilke-Barre, 323 F.3d Appx. 109, 2009 U.S. App. LEXIS 8777, the U.S. Court of Appeals held that the City does have a right of subrogation under PA statutes.
The Court described the facts:
"Cole was severely injured in 1996 when a Luzerne County vehicle struck his police cruiser. He was unable to return to work for nine years. During those nine years, the City paid Cole HLA [PA Heart & Lung Act; effective replaced workers comp with continuing wages and medical coverage] benefits totaling $425,945.69. Meanwhile, Cole also sued Luzerne County for the injuries he had suffered. While Cole's personal injury action was pending, he filed a voluntary petition for Chapter 7 bankruptcy. Robert Sheils, Jr., the appellee, was appointed trustee for Cole's bankruptcy estate. In 2005, the United States Bankruptcy Court for the Middle District of Pennsylvania approved a settlement of Cole's personal injury action according to which the trustee received $ 495,000."
The Court described the purpose of subrogation:
"We agree ... with the purpose of subrogation as stated in Pennsylvania case law:
"[T]he rationale for the right of subrogation is threefold: to prevent double recovery for the same injury by the claimant, to insure that the employer is not compelled to make compensation payments made necessary by the negligence of a third party, and to prevent a third party from escaping liability for his negligence . . . . [S]ubrogation is just, because the party who caused the injury bears the full burden; the employee is made 'whole,' but does not recover more than what he requires to be made whole; and the employer, innocent of negligence, in the end pays nothing.’ Hannigan v. Workers' Comp. Appeal Bd. (O'Brien Ultra Serv. Station), 860 A.2d 632, 635 (Pa. Commw. Ct. 2004) (internal quotations omitted).
Legal Lessons Learned: Firefighters and EMS, prior to filing a lawsuit against a motorist who injured them, should discuss with their attorney whether their public employer may have a right of subrogation.
Article 6-26
OHIO: RESIDENCY - SUPREME COURT OF OHIO AGAIN RULES AGAINST CITIES WITH FIREFIGHTER / POLICE RESIDENCY REQUIREMENTS
On August 20, 2009, the Supreme Court of Ohio struck down the residency requirements for firefighters and police in Toledo (Slip Opinion No. 2009-Ohio-4117), Cleveland (Slip Opinion No. 2009-Ohio-4118, and Dayton (Slip Opinion No. 2009-Ohip 4119).
This is consistent with the Court’s June 10, 2009 opinion striking down City of Lima and City of Akron residency requirements in Lima v. State, 122 Ohio St.3d 155, 2009-Ohio-259. The Court in those cases held:
"We conclude that R.C. 9.481 is constitutional and, therefore, that municipalities may not require their employees to reside in a particular municipality, other than as provided in R.C. 9.481(B)(2)(b)."
The Ohio General Assembly had the authority to enact legislation that overturned the ordinances of 125 cities and 13 villages requiring police & firefighter to reside in that political subdivision. The statute provides:
9.481 Residency requirements prohibited for certain employees.
(A) As used in this section:
(1) "Political subdivision" has the same meaning as in section 2743.01 of the Revised Code.
(2) "Volunteer" means a person who is not paid for service or who is employed on less than a permanent full-time basis.
(B)(1) Except as otherwise provided in division (B)(2) of this section, no political subdivision shall require any of its employees, as a condition of employment, to reside in any specific area of the state.
(2)(a) Division (B)(1) of this section does not apply to a volunteer.
(b) To ensure adequate response times by certain employees of political subdivisions to emergencies or disasters while ensuring that those employees generally are free to reside throughout the state, the electors of any political subdivision may file an initiative petition to submit a local law to the electorate, or the legislative authority of the political subdivision may adopt an ordinance or resolution, that requires any individual employed by that political subdivision, as a condition of employment, to reside either in the county where the political subdivision is located or in any adjacent county in this state. For the purposes of this section, an initiative petition shall be filed and considered as provided in sections 731.28 and 731.31 of the Revised Code, except that the fiscal officer of the political subdivision shall take the actions prescribed for the auditor or clerk if the political subdivision has no auditor or clerk, and except that references to a municipal corporation shall be considered to be references to the applicable political subdivision.
(C) Except as otherwise provided in division (B)(2) of this section, employees of political subdivisions of this state have the right to reside any place they desire.
Effective Date: 05-01-2006
Legal Lessons Learned: Firefighter residency requirements in Ohio must now be in compliance with this 2006 statute.
Article 6-25
OHIO: OHIO ATTORNEY GENERAL – COUNTY EMA DIRECTOR CAN ALSO SERVE AS MEMBER OF CITY COUNCIL
On March 23, 2009, the Ohio AG issued opinion 2009-010 to the Butler County Prosecutor. The full opinion can be read: http://www.ag.state.oh.us/legal/opinions/2009/2009-010.pdf.
The facts are as follows:
"You have requested an opinion whether the positions of director of a countywide emergency management agency (CEMA) and member of a charter city legislative authority are compatible. For the reasons that follow, a person may serve simultaneously in these two positions, provided no local charter provision, resolution, ordinance, or departmental regulation prohibits such simultaneous service and the person, as a member of the legislative authority, abstains from participating in any deliberations, discussions, negotiations, or votes concerning the making of contributions of public moneys to the CEMA."
Ohio General Assembly has authorized this:
"Although conflicts of interest may arise between the positions in question, the General Assembly has authorized a member of a city legislative authority to serve as the director of a CEMA. R.C. 5502.26(A) states, in part, that ‘[t]he director/coordinator of emergency management may be an official or employee of any political subdivision entering into the countywide agreement, except that the director/coordinator shall not be the chief executive of any such political subdivision.’ "
Legal Lessons Learned: This Ohio AG opinion is helpful to EMS Directors.
Article 6-24
OHIO: ATTORNEY GENERAL OPINION – TOWNSHIP FIRE CHIEF DOES NOT HAVE AUTHORITY TO SIGN CONTRACT OR MOU FOR MOBILE COMMUNICATIONS EQUIPMENT TO BE PUT ON CITY OWNED VEHICLE – TOWNSHIP TRUSTEES MUST APPROVE
On May 13, 2009, the Ohio AG issued an opinion letter to the Greene County prosecutor concerning mobile communications equipment. Full opinion can be read:
http://www.ag.state.oh.us/legal/opinions/2009/2009-013.pdf.
The facts are as follows:
"[T]he fire chief proposes to enter into a memorandum of understanding with the fire chief of an adjacent municipality which would result in a township owned generator and radio equipment being installed in a vehicle provided by the other jurisdiction. This memo of understanding, which would be signed by the township fire chief without the specific approval of the board of township trustees, provides that the township would retain all ownership interest in all of the township’s equipment which could be removed by the township upon termination of the agreement. The city-owned vehicle would be housed by the township and made available to the municipality owing the vehicle and to other local jurisdictions upon request as a mobile communication center. Both the municipality contributing the vehicle and the township would share in the cost of the maintenance of the radio equipment, generator and vehicle."
Regarding a contract, the Ohio AG concluded:
"Therefore, R.C. 505.37(B) does not authorize a township fire chief and the legislative authority of a municipal corporation to take joint action to establish a mobile communication center for fire-fighting purposes."
Regarding a MOU, the AG concluded:
"Therefore, in response to your final question, a township fire chief may not enter into a memorandum of understanding with officials from a municipal corporation whereby township fire equipment is installed in a motor vehicle of the municipal corporation. A township fire chief may, however, participate in the preparation of such a memorandum of understanding."
Legal Lessons Learned: Township Fire Chief needs approval of Township Trustees to establish a mobile communications center with a nearby municipality.
Article 6-23
U. S. SUPREME COURT: IDAHO CAN LAWFULLY ENACT A STATUTE PROHIBITING PUBLIC EMPLOYEES FROM ATHORIZING PAYROLL DEDUCTIONS FOR UNION POLITICAL ACTIVITIES
On Feb. 24, 2009, in Ysursa, Secretary of State Of Idaho v. Pocatello Education Association, the U.S. Supreme Court held (6 to 3), http://www.supremecourtus.gov, that Idaho’s "Right To Work Act" which permits public employees to authorize payroll deductions for general union dues, but prohibit such deductions for union political activities, does not violate the unions’ First Amendment rights.
The Idaho "Right To Work" statute was amended in 2003. Prior to 2003, employees could authorize a payroll deduction for both general union dues and for union political activities. Violations of the 2003 statute were punishable by a fine of up to $1000 or up to 90 days in imprisonment, or both.
The federal district judge upheld the ban at the Idaho state-level of government for state employees, but held it was unconstitutional regarding local-level of government employees. The U.S. Court of Appeals agreed. The U.S. Supreme Court reversed, and upheld the Idaho statute at all levels of public employees.
Chief Justice Roberts wrote the majority opinion, holding:
"The First Amendment prohibits government from ‘abridging the freedom of speech’; it does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression. Idaho’s law does not restrict political speech, but rather declines to promote the speech by allowing employee checkoffs for political activities. Such a decision is reasonable in light of the State’s interest in avoiding the appearance that carrying out the public’s business is tainted by partisan political activity."
Legal Lessons Learned: This decision may encourage other states to enact similar legislation.
Article 6-22
U.S. SUPREME COURT: ARBITRATIONS – COLLECTIVE BARGAINING AGREEMENT WHICH REQUIRED ALL CLAIMS OF DISCRIMINATION GO TO ARBITRATION IS CONSTITUTION - BUILDING GUARDS WHO WERE DISPLACED BY LICENSED SECURITY PERSONNEL CANNOT FILE LAWSUITS CLAIMING AGE DISCRIMINATION
On April 1, 2009, in 14 Penn Plaza LLC v. Pyett, the U.S. Supreme Court held (5 to 4), http://www.supremecourtus.gov., that if an employer and union enter into a Collective Bargaining Agreement (CBA) that clearly and unmistakably require all union members to arbitrate claims of discrimination, including claims of age discrimination arising under the ADEA [Age Discrimination in Employment Act of 1967], then these employees may not file age lawsuits in federal court.
Justice Thomas wrote the majority opinion. He wrote that the New York City union for the building-services industry, Service Employees International Union, Local 32BJ, includes building cleaners, porters and door persons. Since the 1930s, they have negotiated industry-wide CBAs with the Realty Advisory Board on Labor Relations. The CBA requires all claims of discrimination be submitted to the CBA’s grievance and arbitration provisions.
14 Penn Plaza LLC is a member of the Realty Advisory Board. In August 2003, with Local 32BJ’s concurrence, Penn Plaza retained Spartan Security Company to supply licensed security guards for the lobbies of their many office buildings. The former unlicensed night guards were reassigned as night porters and light duty cleaners – and they claim this led to a loss of income and caused them emotional distress. Local 32BJ filed grievances on their behalf, and when the grievances were denied, Local 32BJ initially asked for binding arbitrations. The Local then withdrew these requests:
"Because it had consented to the contract for the new security personnel at 14 Penn Plaza, the Union believed it could not legitimately object to [the unlicensed night guards’] reassignments as discriminatory."
Arbitrations did proceed on claims of breach of seniority rights and overtime, but these claims were denied after several arbitrations. In May, 2004, these non-licensed security personnel then filed a claim with the federal Equal Employment Opportunity Commission (EEOC). The EEOC found no violate of the ADEA and issued them a 90-day right to sue letter. A lawsuit was then filed in U.S. District Court in New York. Penn Plaza filed a motion to dismiss the lawsuit and compel arbitration. The trial court refused to do this, and the Board filed an appeal to the U.S. Court of Appeals in New York, which confirmed it could not compel arbitration since the ADEA provides all the right to sue in federal court. Penn Plaza then sought an appeal to the U.S. Supreme Court, which agreed to hear the case.
The majority held that these non-licensed night guards were bound by the CBA – there sole remedy was through the CBA grievance / arbitration process. The employees claimed that the arbitration clause in the CBA is unenforceable and should not have been in the CBA because it affects the employees’ "individual, non-economic statutory rights."
Justice Thomas, writing for the majority, flatly rejected that argument:
"We disagree. Parties generally favor arbitration precisely because of the economics of dispute resolution…. As in any contractual negotiation, a union may agree to the inclusion of an arbitration provision in a collective-bargaining agreement in return for other concessions from the employer."
Legal Lessons Learned: In the Fire Service, unions must be very careful about language in a CBA regarding arbitration as the sole remedy for claims of discrimination.
Article 6-21
OH: OHIO SUPREME COURT DISMISSES CINCINNATI POLICE UNION APPEAL – ASSISTANT POLICE CHIEFS CAN NOW BE HIRED FROM ANYWHERE IN COUNTRY BASED ON AMENDED CITY CHARTER PASSED BY VOTE OF CITY RESIDENTS
On Jan. 28, 2009 in Queen City Lodge No. 69, Fraternal Order of Police v. State Employment Relations Board, the Ohio Supreme Court (7 to 0) issued a one-line order, "Appeal dismissed as improvidently accepted."
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
Article 6-20
WV: RESIDENCY – ORDINANCE REQUIRING "IMMEDIATE" TERMINATION OF FIREFIGHTERS AND POLICE – LAWFUL BECAUSE CITY MUST ALSO PROVIDE PRE-DISCIPLINARY HEARING
On Sept. 30, 2008, in Jason Eastham v. City of Huntington, 2008 W. Va. LEXIS 72, the Supreme Court of Appeals of West Virginia, upheld the residency requirement since no civil service employee may be terminated without a pre-disciplinary hearing.
Jason Eastham is a firefighter with the City of Huntington. On Dec. 13, 2006, he and a police officer filed a lawsuit seeking a declaratory judgment that the residency ordinance was a breach of the West Virginia code for civil service employees. The city’s Charter, as modified in 2002, requires all employees to reside in the city within ninety days of their appointment. Violations "shall result in immediate discharge from the City service."
On Jan. 22, 2007, a Circuit Court judge declared the residency provision void and unenforceable because it violates the rights of civil service employees to a pre-disciplinary hearing.
The city filed an appeal, and asserted that its residency requirement should be read as preserving the right to a pre-disciplinary hearing.
The Supreme Court agreed: Municipalities in West Virginia may enact residency requirements pursuant to West Virginia Code 8-5-11 (1969). The court concluded that in reviewing the City of Huntington’s residency ordinance, "we believe that it is reasonable to construe the ordinance as preserving the pre-disciplinary hearing guaranteed by our laws. Although the ordinance provides for ‘immediate discharge,’ it contains no language that expressly or unambiguously precludes a pre-disciplinary hearing for those employees who fail t prove residency."
Legal Lesson Learned: Unlike Ohio, where the General Assembly has removed residency requirements, in West Virginia municipalities may establish residency requirements. The West Virginia court had little difficulty in "reading into" the ordinance a due process requirement.
Article 6-19
OHIO – RESIDENCY - CITY OF DAYTON ORDINANCE UNENFORCEABLE - FIREFIGHTERS AND POLICE MAY LIVE IN THE COUNTY OR IN NEIGNBORING COUNTIES
On May 30, 2008, in Dayton v. The State of Ohio, et. al, 176 Ohio App.3d 469, 2008-Ohio-2589, the Ohio Court of Appeals for Montgomery County, held (2 to 1) that the City of Dayton cannot require its full time employees, including firefighters, to reside in the city limits.
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
Article 6-18
Larry's Legal Lessons: Retaliation Suits by Employees Expected to Increase
Recent court decisions open the door - 08-14-2008
Article 6-17
MICHIGAN – CITY OF DETROIT - MANAGEMENT HAS RIGHT TO PROCEED WITH LAYOFFS, DEMOTE BATTALION CHIEFS AND RESTRUCTURE THE FIRE DEPARTMENT WITHOUT COLLECTIVE BARGAINING - UNLESS THERE IS PROOF OF SERIOUS SAFETY RISK - CASE REMANDED TO CIRCUIT COURT JUDGE FOR SAFETY HEARING
On July 23, 2008, the Michigan Supreme Court in Detroit Fire Fighters Association IAFF Local 344 v. City of Detroit, 2008 Mich. LEXIS 1404, held (6 to 1) held that a preliminary injunction was improperly issued by a Circuit Court judge preventing the City from implementing a layoff in 2005 of 65 firefighters, demotion of 10 battalion chiefs, reduction of number of battalions from 8 to 5, and shut down engine / ladder companies in a restructuring plan. The Michigan Supreme Court ruled, “Here, not only did the circuit court fail to resolve the safety claims on the merits, it entered what amounted to a permanent injunction without applying the traditional injunctive standards.”
The Collective Bargaining Agreement in effect from 1998 – 2001 specifically provided that “ the City reserves the right to lay off personnel for lack of work or funds….” When the CBA expired in 2001, the parties were unable to reach agreement on a new contract. In Dec. 2002, the Local invoked compulsory arbitration under Michigan Act 312 (MCL 423.236). The statute requires that an arbitrator hold a hearing within 15 days, conclude the hearing within 30 days, and then issue a written opinion within 30 days. The Local and the City waived the expedited procedures, and the “binding” arbitration process has been on going for the past 5 years.
The City of Detroit’s serious budget shortfalls resulted in Detroit announcing in September, 2005 layoffs of 65 FF, and demotion of 10 battalion chiefs, and deactivation of five engine and ladder companies. Local 344 filed suit in Wayne Circuit Court on September 12, 2005, seeking a preliminary injunction. The Local argued that this was a safety issue, and also that the City’s unilateral implementation of the restructuring plan violated Michigan law (under Article 312 of Michigan law, parties are required to maintain the “status quo” during binding arbitration).
The circuit judge held a series of hearings, and issued an injunction on Oct. 17, 2005, based on the concern for the safety of the FF. The judge directed the arbitrator in the binding arbitration proceedings to determine if safety concerns were meritorious. The arbitrator on October 27, 2005 reported to the trial judge that he lacked jurisdiction to make such a decision. The judge on Oct. 30, 2005, following another hearing, granted another preliminary injunction, ruling that there continues to be “a serious question of fact as to whether or not [the restructuring plan] would have an impact on fire fighter’s safety, or indeed upon working conditions or working hours.”
The City filed an appeal to the Michigan Court of Appeals, which ruled in 2006 for Local 344, holding that the layoffs would affect the “safety of working conditions for firefighters” and therefore the proposed layoffs and restructuring plan “are mandatory subjects of bargaining.”
The City filed an appeal to the Michigan Supreme Court, which agreed to hear the appeal. Following oral argument before the Court by attorneys for both sides, the Court ordered the parties to file supplemental briefs. The Court then ordered second round of oral arguments.
The Michigan Supreme Court reversed the Court of Appeals, and vacated the preliminary injunction of the Circuit Court judge. The majority held that the Circuit Court judge failed to make any findings about whether firefighter safety was in fact at risk. “Given the magnitude of a decision to restrain an employer’s exercise of a management prerogative [to layoff personnel], this level of uncertainty in a circuit court ruling is untenable.” The case has therefore been sent back to the circuit judge for further hearing on the safety issue.
LEGAL LESSONS LEARNED: This decision will be closely read by municipalities facing budget problems throughout the nation.
Article 6-16
MICHIGAN – CITY OF PONTIAC MAY PROCEED WITH LAYOFFS- MICHIGAN SUPREME COURT HOLDS THAT JUDGE IMPROPERLY GRANTED PRELIMINARY INJUNCTION WITHOUT PROOF OF IMMEDIATE RISK OF SAFETY
On July 23, 2008, the Michigan Supreme Court held in Pontiac Fire Fighters Union Local 376 v. City of Pontiac (4 to 3), 2008 Mich. LEXIS 1403, that a Michigan Circuit Court judge “abused [his] discretion” when he issued a preliminary injunction on June 30, 2006, preventing the City from laying off firefighters.
The city planned to layoff 28 of 117 firefighters (Associated Press, July 23, 2008). The Michigan Supreme Court held that Local 376 failed to introduce sufficient evidence when seeking a preliminary injunction in 2006 showing “irreparable harm.” The trial judge issued the injunction based on the affidavits filed by Local 376, and the contrary affidavits filed by the city, and oral argument; the judge did not conduct a hearing where witnesses testified.
The Michigan Supreme Court held that the Local’s affidavits did not justify an injunction. “There exists an adequate legal remedy for laid-off firefighters. If the layoffs violated the CBA [Collective Bargaining Agreement] or constituted an unfair labor practice, MERC [Michigan Employment Relations Commission] or a grievance arbitrator can award back pay, order reinstatement, or provide another remedy to make the laid-off firefighters whole.”
The Michigan Supreme Court also found Local 376’s safety argument unconvincing. The union offered evidence at the preliminary injunction hearing that the layoffs would lengthen their response time, which in turn would require firefighters to fight larger, more intense fires. The Court wrote, “while plaintiff’s argument that staffing decisions might affect firefighter safety is appealing as a general proposition, upon closer scrutiny, plaintiff alleged nothing more than an apprehension of future injury or damage.” The Court concluded, “Neither plaintiff nor the circuit court detailed how the remaining firefighters faced real and imminent danger from the layoffs rather than future, speculative harm.” [Emphasis by the Court.]
The Court stressed that its decision did not “trivialize the dangers accompanying firefighting.” However, “because firefighting is a dangerous job, every managerial decision in the abstract might touch on a safety issue. A mere apprehension of reduced safety by the union is insufficient grounds for a court to grant equitable relief.”
The Court also referenced the affidavit of Fire Chief McAdams, who stated that the number of firefighters present at a fire would not be reduced by the layoffs and that the number of firefighters in each rig would increase from three to four. And McAdams averred that additional, outside support was available, if needed. For instance, because the ‘great majority’ of calls to which the fire department responded were medical runs, private ambulance services, rather than firefighters, would be used to respond to those calls if the department was functioning at its minimum daily staffing level.”
Fire Chief McAdams also stated in his affidavit that “the department’s remaining 89 firefighters would continue to adhere to basic safety protocols such as the ‘incident command system’ and the ‘two in, two out’ rule.” [Court’s footnotes omitted.]
LEGAL LESSONS LEARNED: This opinion may be of great interest to municipalities nationwide considering layoffs.
Article 6-15
OHIO - LANDMARK OHIO SUPREME COURT DECISION - FIRE CHIEF TERMINATED – LAWSUIT ALLEGING VIOLATION OF OHIO DISABILITY LAWS MAY BE FILED WITHOUT FIRST APPEALING TO CITY’S CIVIL SERVICE COMMISSION
On July 8, 2002, the Ohio Supreme Court in Dworning v. City of Euclid, slip opinion No. 2008-Ohio-3318, http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-3318.pdf, the Court held 7 to 0, that “The protection of an individual’s right to pursue private remedies is too central an aspect of Ohio’s commitment to nondiscrimination to be limited to, or delayed by, an administrative process. We hold that a public employee alleging employment discrimination in violation of R.C. Chapter 4112 need not exhaust the administrative remedy of appeal to a civil service commission” before file a lawsuit.”
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
Article 6-14
Invasion Of Privacy – Text-Messaging - City And Wireless Service Provider Improperly Transcribed Personal Messages Sent By Police Sergeant On Department’s Pager
On June 18, 2008, in Quon v. Arch Wireless, the U.S. Court of Appeals for the 9 th Circuit (based in San Francisco) held 3 to 0, that the City of Ontario, California and Arch Wireless Operating Company may be sued for damages for breach of privacy. The text-message transcripts included personal messages sent by Sergeant Jeff Quon to his wife, some with sexually suggestive comments. The 9 th Circuit held he had reasonable expectation of privacy because the PD’s Administrative Bureau commander had verbally assured all police officers that their would be no audits of text messages so long as they reimbursed the city each month they exceeded the 25,000 character limit. See opinion: http://www.ca9.uscourts.gov/ca9/newopinions.
In 2001, the city contracted with Arch Wireless to provide wireless text-messaging services for police officers, and purchased twenty-two (22) pagers. Lt. Steve Duke, Commandeer of the Administration Bureau, was responsible for collecting payments from officers who exceeded the 25,000 characters / month limit.
Sergeant Quon, a member of the Ontario Police Department SWAT Team, had exceeded the 25,000 character limit on three or four occasions. Duke reminded Sergeant Quon about their payback obligation and his promise of no audits. He testified that he told Quon:
He had to pay for his overage, that I did not want to determine
if the overage was personal or business unless they wanted me to,
because if they said, “Its all business, I’m not paying for it,” then
I would do an audit to confirm that. And I didn’t want to get
into the bill collecting thing, so he needed to pay for his personal
messages so we didn’t – pay for the overage so we didn’t do an
audit. And he needed to cut down on his transmissions.
In August, 2002, Sergeant Quon, and another officer had again exceeded their 25,000 character limit. Lt. Duke was getting tired of being a bill collector, so he suggested to Police Chief Lloyd Scharf that the PD conduct an audit. If all these text messages of these two officers were for official purposes, then the Police Department should consider increasing the 25,000 character limit.
An e-mail was sent to Arch Wireless, requesting transcripts of the text-messages of these two officers. Arch Wireless confirmed the pagers were owned by PD, and they promptly prepared transcripts and delivered to them to the PD. The transcripts included personal messages to his wife, to Police Dispatcher April Florio, and to Sergeant Steve Trujillo. Police Chief Scharf then ordered an Internal Affairs investigation be launched “to determine if someone was wasting … City time not doing when they should be.”
Sergeant Quon learned of these text-message transcripts during an internal affairs interview by Sergeant Debbie Glenn. He filed a lawsuit, along with his wife, Jerilyn Quon, dispatcher April Florio and Sergeant Trujillo, in U.S. District Court against the city, and the police chief and Sergeant Glenn. They alleged violation of their right of privacy under 4 th Amendment of U.S. Constitution, and under California Constitution. They also sued Arch Wireless; alleging violation of the federal “Electronic Communications Privacy Act” as amended in 1986 by the “Stored Communications Act.”
The U.S. District Judge impaneled a jury to resolve the factual question of whether Police Chief Scharf was acting in his official capacity when he requested the transcripts. The jury found in the Police Chief’s favor, and the judge ordered him dismissed from the lawsuit on the basis of “qualified immunity.” The judge also dismissed Arch Wireless, holding that they were merely a “remote computing service” and not an “electronic computing service” that would be liable under the Stored Communications Act.
The plaintiffs appealed. The 9 th Circuit reversed, holding that the plaintiffs may proceed to trial for damages against Arch Wireless, the city and Sergeant Glenn. The 9 th Circuit held that Arch Wireless provided an “electronic communication service” to the city, and therefore may be sued for breach of the Electronic Communications Privacy Act, 18 U.S.C. 2702(a), by knowingly turning over text-messaging transcripts to the city, which was not an “addressee or intended recipient” on any of the text-messages.
The 9 th Circuit also held that the plaintiffs may proceed to trial against the City of Ontario and Sergeant Glenn, for violation of their 4 th Amendment right of privacy. The Court held that Sergeant Quon had a reasonable expectation of privacy in his text-messages, in light of the verbal assurances of Lt. Duke that audits would not be performed if overages were paid. The Court wrote:
Quon had exceeded the 25,000 character limit ‘three or four times,’
and had paid for the overages every time without anyone reviewing
the text messages. This demonstrated that the OPD [Ontario Police
Department] followed its “informal policy” and that Quon reasonably
relied on it. Nevertheless, without warning, his text messages were
audited by the Department. Under these circumstances, Quon had a
reasonable expectation of privacy in the text messages archived on
Arch Wireless’s server. [Opinion, page 7023.]
The Court also noted that the Police Department could have avoided this apparent breach of privacy by simply warning Sergeant Quon that for one month “he was forbidden from using his pager for personal communications, and that the contents of all of his messages would be reviewed to ensure the pager was used only for work-related purposes during this time frame. Alternatively, if the Department wanted to review past usage, it could have asked Quon to count the characters himself, or asked him to redact personal messages and grant permission to the Department to review the redacted transcripts.” (Opinion, page 7027.)
The Court also noted that while Sergeant Jeff Quon had signed in 2000 the city’s “Computer Usage, Internet and E-Mail Policy” that stated “users should have no expectation of privacy or confidentiality when using these resources,” this policy was issued prior to the city acquiring the text-messaging pagers, and the policy was never formally amended to cover text-messaging on pagers.
Legal Lessons Learned: While this opinion only applies to California and the other Western states in the 9 th Circuit, it does illustrate that employee privacy is a “hot” topic. Fire and EMS departments need clearly written policies concerning audits of computers and other electronic devices, including text-messaging. Similar to the administrative steps taken by fire & EMS departments under HIPAA to protect patient privacy, departments must also be very cautious about use of personal electronic messages.
Article 6-13
State And Local Government Employees Suing In Federal Court – U.S. Supreme Court Restricts Claims Of Denial Of Equal Protection - Must Be Evidence Of Race, Sex, Age, or National Origin Discrimination - Rejects “Class-Of-One” Theory
On June 9, 2008, in Enhquist v. Oregon Department of Agriculture, the U.S. Supreme Court (6 to 3) held that a government employee cannot sue in Federal court under the Equal Protection Clause of the 14 th Amendment by simply alleging that she was treated differently from other similarly situated employees; the lawsuit should be dismissed as contrary to the “at will” doctrine unless it is alleged that the different treatment was based on mistreating of a protected class of employees (class of race, sex or age). The Court flatly rejects a “class-of-one” theory of equal protection; it “has no place” in the public employment context. See opinion: http://www.supremecourtus.gov/opinions/07pdf/07-474.pdf.
Anup Engquist was employed since 1992 by the Oregon Department of Agriculture as an “international food standard specialist.” She had made repeated complaints about another employee, Joseph Hyatt, who was ordered to take diversity and anger management training. In 2001, a new Assistant Director, John Szczepanski, was assigned to supervise the unit, and he told others he could not “control” Ms. Engquist, and he intended to “get rid” of her. When a management position opened up, both Ms. Engquist and Joseph Hyatt applied – he promoted Hyatt.
Because of a state-wide budge cut, the Assistant Director in 2002 decided to eliminate several positions, including Engquist’s. Under the collective bargaining agreement, she was given an opportunity to “bump” to another position at her pay level for which she was qualified, or take a demotion. She applied for another position, but was found not qualified. She refused a demotion and was laid off.
She then filed a lawsuit in U.S. District Court in Oregon against the Oregon Department of Agriculture, the Assistant Director and Joseph Hyatt. She claims she was fired not because she was a member of an identified class (race, sex and national origin) but simply because of “arbitrary, vindictive, and malicious reasons” by her Assistant Director - under the “class-of-one” legal theory. The case was tried to a jury, which rejected her claims of discrimination based on her race, sex or national origin. The jury, however, did find for her on the “class-of-one” theory because the Assistant Director intentionally treated her differently that others similarly situated. The jury awarded her $175,000 in compensatory damages, and $250,000 in punitive damages.
The State of Oregon appealed, and the U.S. Court of Appeals for the 9 th Circuit reversed, concluding that extending the “class-of-one” theory to state employee decisions would lead to undue federal court interference in state employment practices, and completely invalidate the practice of “at will” employment for government employees.
The majority of the U.S. Supreme Court, in a decision by Chief Justice Roberts, held for the employer:
Our traditional view of the core concern of the Equal
Protection Clause as a shield against arbitrary classifications,
combined with unique considerations applicable when
the government acts as employers as opposed to sovereign,
lead us to conclude that the class-of-one theory of equal
protection does not apply in the public employment contexts.
(Opinion, p. 5.)
The Chief Justice explained, “we have often recognized that government has significantly greater leeway in its dealings with citizen employees that it does when it brings it sovereign power to bear on citizens at large. ” The Chief Justice then refers to a prior decision, “Given the ‘common- sense’ realization that government offices could not function if every employment decision became a constitutional matter … constitutional review of government employment decisions must rest on different principles that review of … restraints imposed by the government as sovereign.” (Opinion, p. 6.)
Legal Lessons Learned: This opinion is good news forgovernment employers, including Fire & EMS departments. The Supreme Court has again restricted state and local employee access to federal courts. This is consistent with the Court’s 2006 decision in Garcetti v. Ceballos, 547 U.S. 410, where the court restricted the right of state and local government employees to sue in federal court for alleged violations of their First Amendment “freedom of speech” rights (California prosecutor was demoted after his public comments about a search warrant affidavit with false information).
Article 6-12
Retaliation – U.S. Supreme Court - Two Decisions Uphold Right Of Employees To Sue Their Employer For Retaliation After Making Complaint Of Discrimination - “Hot” Employment Law Issue
On May 27, 2008, the Court in CBOCS West, Inc. v. Humphries (7 to 2) and in Gomez-Perez v. Potter (6 to 3), upheld the right of employees who have made internal claims of discrimination, to sue in federal court if an employer takes retaliatory action. See opinions: Humphries at http://www.supremecourtus.gov/opinions/07pdf/06-1431.pdf ; and see Potter decision at http://www.supremecourtus.gov/opinions/07pdf/06-1321.pdf.
See my full article on theses cases in www.firehouse.com, July, 2008 (or search “Bennett).
Legal Lessons Learned: Given the increased risk of retaliation lawsuits, Fire & EMS department need to conduct refresher training for supervisors. Supervisors must thoroughly document the factual basis for new discipline of any employee who has previously complained of discrimination.
Article 6-11 - www.firehouse.com
September 2007
Larry's Legal Lessons: Hiring Firefighters Who are in the National Guard (09-25-2007)
Let applicants know why they have been rated poorly, and document the specific reasons.
Article 6-10
OHIO - DEFAMATION - POLICE CHIEF MAY SUE PUBLIC SAFETY DIRECTOR AND CITY – PUBLICATION OF UNSUBSTANTIATED RUMOR
On March 13, 2008, the Ohio Supreme Court held (vote 4 to 3) in Jackson v. Columbus, 117 Ohio St.3d 328, 2008-Ohio-1041, that former Columbus Police Chief James Jackson is entitled to proceed to trial in his defamation action against the former Public Safety Director, and the city, after an internal investigation report of gambling in the police department included an unsubstantiated allegation by an inmate that the police chief had impregnated a teenage prostitute and he was secretly paying child support. The prisoner had failed a lie detector, and no one interviewed the police chief (who had a vasectomy prior the alleged act).
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
Article 6-19
Ohio - “At Will” Employee Injured At Work, Receiving TTD, Can Still Be Terminated For Failure To Return To Work (8 years in this case) - Supreme Court Clarifies Prior Decision - Dissent By Chief Justice Moyer
On Dec. 20, 2007, in Bickers v. Western & Southern Life Insurance Company, 116 Ohio St.3d 351, 2007-Ohio-6751, the Ohio Supreme Court held (5 to 2) that Shelley Bickers, who was injured at work and was receiving temporary total disability benefits, could be terminated for her failure to return to work without restrictions for eight years. Chief Justice Thomas Moyer filed a dissenting opinion to this very controversial holding.
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
Article 6-8
New York: Retaliation For Freedom of Speech – NYPD Police Sergeant Can Not Sue City - Wrote Report On Health Affects Of Leaking Fuel Tanks Under His Precinct In Official Capacity As Safety Officer For Precinct - Not As A Matter Of Public Concern.
On Feb. 6, 2008, in Angelo Ruotolo v. City of New York, the U.S. Court of Appeals for the 1 st Circuit, 514 F.3d 184, 2008 U.S. App. LEXIS 2551, affirmed the dismissal of Sergeant Ruotolo’s lawsuit for retaliation. The court held that he was speaking as a public employee, in the course of his employment duties, and it was not on a matter of public concern. It was therefore “unprotected speech” under the U.S. Supreme Court decision in Garcetti v. Ceballos, 547 U.S. 410 (2006).
Underground Fuel Tanks: Sergeant Ruotolo was on the NYPD for 20 years. In Oct. 1999 he was serving as the Training And Safety Officer for the 50 th Precinct in the Bronx. A local newspaper ran a story about possible health risks from leaking underground gasoline storage tanks at the precinct.
Sergeant Ruotolo was directed by his Commanding Officer to review employee illness and death reports. He wrote a two page memo, dated Oct. 28, 1999, which he titled “Survey Pursuant to Request,” His memo identified a large number of cancers, miscarriages, birth defects and other health problems of police officers and others working at the 50 th Precinct. He recommended that an environmental study be conducted.
The City of New York retained environmental experts, who confirmed gasoline leakage from the fuel tanks, and found contamination of soil and air at levels above OSHA and EPA safety standards. The city, at great expense, took months to abate the hazard.
In April, 2000, the Patrolmen’s Benefit Association (“PBA”) came to the 50 th Precinct to sign up potential plaintiffs for a personal injury lawsuit. With the prior knowledge of his Commanding Officer, Sergeant Ruotolo met with the PBA and answered their questions. When the PBA told him about their plans to file a lawsuit, he declined to be a plaintiff, and he did not tell anyone else about the planned lawsuit.
Retaliation allegations:Sergeant Ruotolo claims that the retaliation started right after his Oct. 1999 report, and continued until his retirement in 2004. His allegations included: transfer to a less desirable precinct; frequent reassignments to undesirable shits, to duties he considered beneath his rank and tenure; denial of requests for leave time; and discipline for trivial or fabricated reasons.
Lawsuit: In July, 2003, he filed a lawsuit in U.S. District Court, claiming still more acts of retaliation: the first negative performance review of his career; verbal harassment by superior officers; denial of overtime; discipline, including being placed on “modified duty” and stripped of his badge, shield, identification card and firearm. When he retired on July 26, 2004, he was still on “modified duty” and therefore he lost the privilege of carrying a firearm after retiring (therefore reducing his prospects of working in the private security field).
Pre-trial discovery lasted for three years. Just two weeks prior to his scheduled civil trial, the U.S. Supreme Court rendered its landmark decision in Garcetti v. Ceballos, 547 U.S. 410 (2006). The federal district judge dismissed his lawsuit based on the new decision.
The U.S. Supreme Court in Garcetti v. Ceballos reviewed a memo written by a Deputy District Attorney to his supervisors concerning irregularities in a search warrant affidavit. The Deputy DA was transferred, and he sued claim First Amendment retaliation. The majority of the U.S. Supreme Court held that the Deputy DA could not sue, holding “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from public discipline.”
The U.S. Court of Appeals agreed with the dismissal of Sergeant Ruotolo’s lawsuit. “We hold that Ruotolo’s claim based on his lawsuit must fail because his lawsuit did not address a matter of public concern.”
Legal Lessons Learned: First Amendment retaliation claims by firefighters, police, and other public employees have become extremely difficult to survive under U.S. Supreme Court precedence.
Article 6-7
Ohio – Residency – Court Of Appeals Upholds City of Lima Residency Requirements For Firefighters – Ohio Supreme Court Will Have Final Word
OnDec. 3, 2007 in City of Lima v. State of Ohio, the Ohio Court of Appeals for 3 rd District, Case No. 1-07-21 (full decision can be read on the Court’s web site at http://www.third.courts.state.oh.us), held that Ohio Rev. Code 9.481, effective May 1, 2006, giving employees of political subdivisions the freedom to choose to live in the county or neighboring county, is a violation of the “home rule” authority of Ohio cities under the Ohio Constitution.
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
Article 6-6
OH – CINCINNATI POLICE CHIEF AND ASSISTANT POLICE CHIEFS CAN BE HIRED FROM OUTSIDE CITY (AS CAN FIRE CHIEF / ASSISTANT CHIEFS) – CHARTER AMENDMENT DROPPING CIVIL SERVICE PROTECTION WAS PASSED BY VOTE OF RESIDENTS
On October 26, 2007, in State Employment Relations Board and City of Cincinnati v. Queen City Lodge No. 69, Fraternal Order of Police, the Ohio Court of Appeals for Hamilton County (2 to 1 decision), held that the city’s Charter Amendment, voted into law by the majority of residents on November 6, 2001, “trumped” the FOP’s collective bargaining agreement of Dec. 10, 2000 – 2002.
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
Article 6-5
OHIO - WORKERS’ COMP – TERMINATING AN EMPLOYEE WHILE OUT ON MEDICAL LEAVE IS BREACH OF PUBLIC POLICY DOCTRINE
On April 23, 2007, in Klopfenstein v. NK Parts Industries, Inc, 117 Ohio App.3d 286, 2007-Ohio-1916, the Ohio Court of Appeals for Shelby County held that David Klopfenstein, an “at will” laborer in the warehouse of NK Parts Industries who was injured on the job and fired 10 months later when he could not return to work, can sue the company for wrongful discharge for breach of the “public policy doctrine.” A jury can now hear the case and possibly award him substantial damages.
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
Article 6-4
GA - FIREFIGHTERS CAN SERVE AS JURORS IN MURDER CASE
On Jan. 31, 2007, the Court of Appeals of Georgia in Banegas v. The State, 283 Ga. App. 346, 2007 Ga. App. LEXIS 56, held that a firefighter may serve on a criminal case, and is not automatically removable for cause. Mr. Bengas was convicted of murdering his girlfriend by shooting her in her head while she lay in bed. On appeal, one of the legal issues raised is whether the trail judge properly allowed a firefighter to serve on the jury.
The Court wrote, “Banegas asserts that the trial court erred in denying his challenge to a prospective juror named Watson. During voir dire, Watson testified that he was employed by the Gwinnett County Fire Department, had worked with police and the district attorney's office in investigations, and is a friend of the chief assistant district attorney. Banegas challenged Watson for cause, arguing that, because of his investigative role with the fire department, he was the equivalent of a sworn law enforcement officer. The challenge was denied by the trial court.
The Court further wrote, “ We will not overturn a trial court's refusal to strike a juror for cause unless there has been a manifest abuse of discretion. A person employed in law enforcement is not automatically subject to dismissal for cause unless he is ‘a full-time sworn police officer with arrest powers.’ Banegas points to no evidence that Watson satisfied these criteria. Although Watson stated that as a firefighter he had worked with the police and district attorney's office on ‘numerous different types of incidents,’ such as looking for a body in a well and providing information to an arson investigator, he also testified he could be impartial and would not give deference to the testimony of police officers. He had no knowledge of the incident for which Banegas was on trial. Because as a firefighter he was not automatically disqualified from jury service, and because he stated that he could be fair and impartial, the trial court did not abuse its discretion in refusing to strike Watson for cause.” [Footnotes omitted.]
Legal Lessons Learned: In most states, including Georgia, firefighters can serve as jurors unless they were involved in the case, or personally know one of the witnesses or attorneys.
Article 6-3
OHIO – PUBLIC RECORDS – LIEUTENANT AND CAPTAIN PROMOTIONAL EXAM DOCUMENTS - CITY OF AKRON PROPERLY DELETED NAME, ADDRESS AND SOCIAL SECURITY NUMBER OF ALL CANDIDATES, ASSESSORS AND SUBJECT MATTER EXPERTS
On Dec. 28, 2006, the Ohio Supreme Court in State ex. rel. Carr v. Akron, 112 Ohio St.3d 351, 2006-Ohio-6714 (vote of 6 to 1), refused to issue a writ of mandamus against the City of Akron since most of the documents were voluntarily disclosed.
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
Article 6-2
ILLINIOS – VIOLATION OF CONSTITUTION RIGHT OF PRIVACY – FIREFIGHTER INJURED IN FALL AT WORK WAS REQUIRED TO DROP PANTS SO POLICE COULD TAKE PHOTOS OF INJURY
On Jan. 23, 2007, the U.S. District Court in Leonard Janda v. Ron Kwiattkowski, et al , 2007 U.S. Dist. LEXIS 5427, held that a firefighter is entitled to a jury trial on whether the City of Berwyn violated his constitutional rights by ordering him to drop his pants so police could photograph his injury to his buttock.
Firefighter Leonard Janda fell on some steps at the firehouse and injured his back on October 1, 2004. He was driven to the hospital, treated and released. He was driven back to the firehouse to pick up his belongings, and gave a doctor’s note to his supervisor. On his way home, a co-worker called and was told to return to the firehouse so that two police officers can take photos of his injuries.
His union President, Sam Molinaro, was in the firehouse. He spoke to Fire Chief Kalivoda, who confirmed the city was implementing a new policy requiring police to photograph injuries that occur on city property. The Fire Chief was asked to give a direct order to FF Janda, and the order was given.
FF Janda went to a private area of the fire station, removed his shirt and pulled down his pants to expose his injuries. The police officers took several photos. Union President Molinaro told the police officers to stop taking photos, and instructed FF Janda to get dressed.
FF Janda filed a lawsuit in U.S. District Court under 42 U.S.C. 1983, claiming violation of U.S. Constitution, including 4 th Amendment right to be free from unreasonable searches, and also state claims, including false arrest, conspiracy and invasion of privacy. The city filed a motion for summary judgment, but trial judge refused to dismiss the case. Judge Ronald A. Guzman ruled, “Defendants did not need photographs of plaintiff partially clad to document the accident, prepare for potential litigation or otherwise protect the City’s interests. Consequently, the Court cannot find that the search was reasonable.”
Legal Lessons Learned: Unless a FD has reason to suspect workers’ comp fraud, it is inappropriate to require a firefighter to drop his pants so police can photograph his injuries.
Article 6-1
DEFAMATION – POLICE OFFICER IS “PUBLIC FIGURE” WHO CAN SUE NEWSPAPER FOR DEFAMATION, BUT CAN ONLY COLLECT DAMAGES IF PROVES “ACTUAL MALICE”
On August 12, 2005, the Ohio Court of Appeals for the First District (located in Cincinnati) held in Clarence Daryl Williams v. Gannett Satellite Network, Inc., d/b/a The Cincinnati Enquirer, 162 Ohio App.3d 596, 2005-Ohio-4141, that the former president of the Sentinels black-police officer group may sue, but he has the difficult hurdle of provision actual malice (evil intent) by defendants.
The story appeared in the newspaper on September 28, 2002, about the arrest of two adults and two juveniles. The story said one of the adults was the plaintiff’s son. He “is the son of former Cincinnati officer, Clarence Williams, a former president of the Sentinels black-officers group. He is legally prohibited from having a gun because he has a previous conviction for selling drugs.” Williams filed suit for defamation and intentional infliction of emotional distress against The Cincinnati Enquirer, the newspaper reporter, the City of Cincinnati and “five unnamed police officers” who spoke to the reporter
The trial judge in the Hamilton County Court of Common Pleas had dismissed the lawsuit, finding that the plaintiff did not allege any injury or damages because of the story. The Court of Appeals, 3-judge panel, disagreed. “A statement that a police officer’s son is a criminal reflects negatively on the police officer’s professional ability. That William’s son was arrested carrying a weapon while under a disability and that his son had a previous conviction for selling drugs would tend to affect Williams’ opportunity for advancement.”
In Ohio, there are two types of defamation, “defamation per quod” (where defamation is by the interpretation of the listener; plaintiff must allege “special” or personal damages), and “defamation per se” (it is defamation on its face; damages are presumed). The Court of Appeals said the article was defamation per se, and damage to plaintiff’s career can be presumed.
In 1976, the U.S. Supreme Court in New York Times v. Sullivan, 376 U.S. 254 (1964) held that “ public officials” must not only prove defamation, but also “actual malice” in order to get a jury verdict. The Ohio Supreme Court in 1994 held that police officers are public officials, and likewise cannot collect money judgments without proof of “actual malice.”
Legal Lessons Learned: Police officers (and presumably fire & EMS officials) have a very difficult burden to prove “actual malice” in a defamation lawsuit.
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