The Police Law Blog

Representing Federal Police Officers in Arbitration or at the Merit Systems Protection Board (MSPB)

By John V. Berry, Esq., www.berrylegal.com

 

Our law practice has represented numerous federal law enforcement officers around the United States over the past several years.  One of the most difficult issues that a federal law enforcement officer (Federal LEO) can face is the potential termination of their law enforcement employment.  Federal LEO careers can also be significantly damaged if an officer receives a sustained suspension of a serious nature or length. 

This article addresses the issue of how to approach an appeal of these types of removals and significant suspensions in the forums generally available for Federal LEOs.  The forums in which you appeal can be different, so it is important to know the differences if a Federal LEO finds themselves having to choose between the 2 different types of appeals.

The Two Principal Options for Removal/Suspension LEO Appeals: Arbitration or MSPB

When a Federal LEO receives a copy of a final federal agency decision sustaining a removal or significant suspension they generally have 2 options if they want to appeal the decision that has been made.  The first option is to file an appeal of the removal/suspension with the Merit Systems Protection Board (MSPB).  The second option is to appeal the removal/suspension decision through the Federal LEOs union in the grievance/arbitration procedure.  

There are other potential legal options out there when applicable, such as the filing of a whistleblower complaint with the Office of Special Counsel (OSC) or perhaps a complaint alleging discrimination or harassment through the federal agency’s Equal Employment Opportunity (EEO) office, but the focus of this article are the main two options for a Federal LEO in addressing the substance of the misconduct allegations against him or her. 

A Federal LEO will only be able to exercise the right to appeal their adverse action in one forum; they will have to choose between seeking arbitration and filing an MSPB appeal.  Because of this, it is important to weigh the processes available before deciding on a course of action. 

Sometimes a Choice Between Arbitration and MSPB, Sometimes Not

While most Federal LEOs have a choice between forums, some do not.  While almost all career (non-probationary) Federal LEOs have the right to appeal a removal or serious suspension to the MSPB, not everyone has the right to take their case to arbitration.  In order to have the right to go to arbitration, a Federal LEO must be represented by a federal sector union that agrees to take the case to arbitration.  If there is no union, then there is generally no right to file for arbitration review of serious discipline.  If this is the case, then the choice between filing with the MSPB and filing for arbitration is pretty simple.

If a Federal LEO has the right to file for arbitration through an existing union, then one must consider whether the union will permit their disciplinary case to go to arbitration.  Unions control the ability to go to arbitration, not the officer, so whether a case can go forward to arbitration is up to them.  One important note is that whichever process is elected first is the one that the Federal LEO will have to see through so it is important to be careful when making decisions before submitting letters, grievances or other paperwork to the agency regarding the disciplinary action at issue. 

Seek Information from the Agency in Arbitration and MPSB Appeals

Both arbitration and the MSPB have procedures to assist Federal LEOs in attempting to obtain information for use in their appeals. At the MSPB, more typical discovery procedures (like in regular court procedures) govern.  There are depositions, production of documents requests, interrogatories, etc.  In general, the MSPB tends to have better discovery procedures (especially the use of depositions) than those available in arbitration. 

In arbitration, a Federal LEO is represented by the union either through a shop steward or an attorney (with the approval of their union).  The union has the ability to obtain documents relevant to a disciplinary case on behalf of the affected officer.  This ability comes through the submission of what is known as an "information request" through 5 U.S.C. § 7114(b).  The one key difference between the two forums (MSPB and arbitration) is that there generally is no right to take depositions in preparation for arbitration proceedings. 

MSPB Hearings vs. Arbitration Hearings

There are differences between MSPB hearings and arbitration hearings.  For the most part both the MSPB and arbitration tend to be less formal than regular court proceedings.  In our experience, arbitration is the less formal of the two.    

In arbitration, the Arbitrator is the judge who will issue an opinion in the case.  Typically, arbitrators tend to be very experienced attorneys in labor and employment law that serve as arbitrators and will be mutually selected by the parties.  In MSPB cases, the proceedings are run by an appointed Administrative Judge that is assigned randomly.

Generally, it takes about 120 - 150 days from filing to reach an MSPB hearing. It will take a few months after that hearing, usually, for an officer to obtain a ruling by the judge.  In arbitration, the timeline can be shorter or longer (depending on what procedures the parties have in their collective bargaining agreement and the dates that the arbitrator may have available for the hearing).

The MSPB hearing is generally held at the MSPB's local regional office, whereas an arbitration hearing can be scheduled any place that the parties agree upon (they usually take place at the agency). Both proceedings allow for the use of witnesses and examination and cross-examination by counsel.  

In our experience, MSPB proceedings, from start to finish take a bit less time than arbitration proceedings.  While the MSPB tends to have better discovery procedures, arbitrators tend to be more open to reversing disciplinary cases in general.

Closing Thoughts

We advise potential Federal LEO clients to seek counsel to help them evaluate their individual cases to determine the best type of proceeding, either arbitration or MSPB, for their case.  Both types of proceedings can be valuable for a Federal LEO facing serious discipline.  

 

Baltimore Police Officer Files Suit in Shaving Case

By John V. Berry, Esq., www.berrylegal.com

A Baltimore police officer, Anthony Brown, has filed a lawsuit in Brown v. Baltimore Police Dep’t, Civil No. 11-CV-00136 (D. MD Jan. 2011), alleging that he was personally injured and humiliated when supervisors ordered him to shave in front of other officers. The police officer, an 18-year department veteran of the Baltimore Police Department, filed suit against the Department in U.S. District Court for the District of Maryland.

The officer had suffered from a skin condition which might shaving difficult, if not imopossible and had provided a physician’s note about these medical issues prior to his supervisor's order that he shave. Apparently, the physician’s note was ignored by supervisors and the officer was ordered to shave in front of the other officers, without water or a mirror.

Officer Brown has filed suit against the Baltimore Police Department regarding the forced shaving under Title VII of the Civil Rights Act, Title 20 of the Annotated Code of the State of Maryland, and 42 U.S.C. 1981, 42 U.S.C. 1983, and 42 U.S.C. 1985 along with a number of other legal theories. The officer has further contended that his complaints resulted in poor performance evaluations, withdrawal of overtime opportunities and discrimination against him based on his medical condition. A copy of the latest version of the amended complaint in this case can be downloaded here Download Shaving Lawsuit

 

Police Officer Fitness for Duty Examinations - Considerations for Officers and Supervisors

By John V. Berry, Esq., BERRY & BERRY, PLLC, www.berrylegal.com

Federal and state law enforcement officers often times, as a result of taking leave, or the perception of supervisors are sometimes ordered to take fitness for duty (FFD) examinations.  FFD examinations can be related to both physical and/or mental health concerns by a police department and can prompt a thorough review by the department’s physicians. 

It is important for police officers and police supervisors to be aware of the risks associated with the FFD exam. It is this very type of examination that can lead to an officer’s long term placement on sick leave, forced retirement and/or potential termination from employment with one’s police department.   In other words, it is important to take these examinations seriously. 

When facing this type of examination, each police officer and/or supervisor is highly recommended that they obtain legal advice as the FFD process unfolds. 

BACKGROUND 

The essence of the FFD examination is that the police department or agency sees some reason or justification for questioning whether or not a law enforcement officer is healthy enough to perform his/her duties.  There are usually provisions within a police department’s general orders covering the internal procedures for requiring and taking such a fitness for duty examination. The procedures also vary among different states, in addition to those employed as federal law enforcement officers.

In federal sector law enforcement, for example, there are federal regulations which govern FFD examinations.  These rules are contained within the Code of Federal Regulations (CFR) at 5 C.F.R. § 339.301.  The CFR contains a series of regulations governing how federal agencies require federal law enforcement officers and other employees to take FFD examinations, how these examinations are paid for, and how the individual federal agency involved must handle the FFD process. 

In terms of state and local police agencies, the FFD process varies based on each individual jurisdiction, but there are a number of similarities between the different jurisdictions.  For instance, FFD examinations may raise disability discrimination and family medical leave act issues as most jurisdictions bar these types of behaviors by police departments to one degree or another.

STRATEGIES FOR HANDLING FFD EXAMINATIONS

There are a number of strategies for dealing with FFD examinations.  In the FFD cases that we handle in our law practice, we always urge law enforcement officers and supervisors to seek legal advice because each individual situation varies based upon the individual facts, laws, regulations and general orders that may apply. 

However, the following are some general tips to keep in mind as you begin the FFD process.

Talk to an Attorney: Meet with an attorney about your FFD issues ahead of time (before the examination process begins).

Reasonable or Retaliatory Request: Try to determine whether or not your FFD examination was triggered by a reasonable request or if it is based on other facts (such as retaliation or personality issues).  This will be critical to determine the correct approach to be taken by the law enforcement officer’s attorney.

Hire Your Own Medical Professional:  Give some consideration to having your own medical professional evaluate you regarding any department concerns which may arise.  Keep in mind that if there is no merit to the ordering of an officer’s FFD exam, that they will be referring the officer to their retained doctor, who may not conduct a fair examination.  Often times it is important to keep this in mind with respect to FFD issues.  Many physicians are on retainer and generally tend to find in favor of their employer on the issues.

Have your Attorney Coordinate with the Department’s Physician:  Involve your attorney in the medical examination process.  Often times it may be helpful to have your attorney deal with the police department’s physician. 

Take Notes of your Meeting with the Department Physician: Following an examination by your FFD physician (if they are paid by the officer’s police department), while your memory is fresh make sure to take notes of what occurred during your visit and what the physician may have told you during the examination. 

Seek a Copy of the Department Physician’s Medical Report: Attempt to obtain a copy of the medical findings or report from the physician that examined the officer.  Often times many physicians will attempt to either deny sending the officer a copy of his own medical report or claim that they cannot do so.  If this gets contentious, I would recommend having counsel on hand to speak with the physician and go over your rights as a patient. 

If you Receive a Negative Report from the Department's Physician Quickly Consult your Own Professional to Rebut it:  If the officer has not already sought an examination from their own medical provider, as outlined in Paragraph 3, above, and the officer receives a negative report from the police department’s physician, it may require quick action by the officer to get a new medial opinion to refute whatever the department’s physician claims.

CLOSING

In closing, I recommend that any police officer or supervisor facing an unjustified or questionable FFD examination seek legal advice early.  Doing so may prevent significant employment problems later on after the process has taken hold. 

 

 

 

Giglio for Law Enforcement Officers & Credibility Determinations

By John V. Berry, Berry & Berry, PLLC, WWW.BERRYLEGAL.COM 

“Giglio” is a term that is well known amongst law enforcement officers, but it is often generalized to the extent that the specific meaning and scope of the Giglio case is sometimes misplaced.  I thought that I would provide a short refresher on Giglio and how it impacts police officers today.  In short, Giglio is a term often associated with the issue of law enforcement officer credibility in court.  

The Giglio Case 

The case itself, Giglio v. United States, 405 U.S. 150 (1972), was a landmark decision which began to apply a number of duties of disclosure to prosecutors in criminal cases  as it pertained to government witnesses (and chiefly among them police officers).    The Supreme Court, in Giglio, along with a few other related and following cases essentially established a doctrine where prosecutors acquired a duty to disclose evidence about the credibility of government witnesses (typically, police officers) which had to be turned over following a request by defense counsel. The principal holding in Giglio was explained by the Supreme Court when it held that when the reliability of a given witness may be determinative of either guilt or innocence nondisclosure of evidence affecting credibility could become reversible error.

A Few Cases Following Giglio 

The Giglio principle was further expanded some 4 years later in 1976 by the Supreme Court in United States v. Agurs, 427 U.S. 97 (1976) which recognized a duty by prosecutors to disclose exculpatory information, like the type that involves officer credibility issues in prosecutions.  In Agurs, the Supreme Court held that the prosecution had to provide the information even in the absence of defense counsel’s request for such information. 

Next, the Court's decision in Kyles v. Whitley, 514 U.S. 419 (1995) further added to the burdens that prosecutors faced in terms of credibility determinations that could likely face police officers as witnesses.  The Court in Kyles
imposed an affirmative duty on a prosecutor "to learn of any favorable evidence known to the others acting on the government's behalf, including the police," and a resulting duty to disclose that evidence to the defense. In this case, the defendant was convicted of first-degree murder but was given a new trial after it was discovered that the prosecutor had not divulged exculpatory evidence, even though the prosecutor was unaware of the evidence, which was in police files. The Kyles Court emphasized that even if a prosecutor had been unaware of the exculpatory evidence that regulations can be established to carry the prosecutor's burden and to ensure communication of all relevant information on each case to all the attorneys involved. 

The Reality of Giglio and it’s Effect on Law Enforcement Officers

These court cases and others have slowly built up the requirement that law enforcement officers be truthful in all of their dealings.  When evidence of untruthfulness in cases (or in some jurisdictions evidence of untruthfulness in general, see Lewis v. United States, 408 A.2d 303 (D.C. 1979) (creating a prosecutorial “Lewis list” within the District of Columbia for general acts of untruthfulness and other issues)) comes out in today’s litigious society, prosecutions in some criminal cases can be made more difficult through the forced disclosure of these rules. The Supreme Court has essentially created a string of decisions which require prosecutors to learn of and then to disclose to criminal defense attorneys information which will then be used to attempt to impeach law enforcement witnesses in criminal cases.   

One of the difficulties with credibility information is that it is not consistently provided by each law enforcement agency to local prosecutors.  This difficult often stems from internal politics within a police department.  In some cases, this type of internal politics decides which members of a department get turned in to prosecutors as unreliable and which do not (usually those with a friend in the Chief’s office).  This has led to inconsistent practices internally in police departments and often times disciplinary actions or security clearance issues with respect to the truthfulness of individual police officers and supervisors.

Some police departments have responded to these issues with different policies.  Some departments have attempted to enforce a strict truthfulness policy and terminate officers who violate them; this often times leads to officer appeals and reversals of terminations because departments inevitably misread the case law and make legal mistakes. Still other departments attempt to place the police officer or supervisor in an administrative assignment (often times another mistake related to a lack of legal guidance about the weight that these issues have.  One other issue that has also occurred is the inconsistent disclosures in Giglio situations by local prosecutors.  There are a number of situations in which different prosecutors have led to an inconsistent application of Giglio (often times less experienced prosecutors make mistakes about the application of Giglio to their criminal prosecutions) causing an otherwise good case to be dropped due to a misunderstanding of Giglio. 

Closing Thoughts on Giglio and the Police Officer

This is a continuing and as yet unresolved issue.  It appears that the courts are still refining Giglio and departments have generally played catch up in responding to new court decisions as they are issued.  Police officers facing truthfulness issues should consult an attorney as early in the process as possible to determine how best to proceed when facing these types of disciplinary or impeachment issues. 

 

 

NLRB Complaint Regarding Facebook Issues Could Affect Police Officers

By John V. Berry, Esq., Berry & Berry, PLLC, berrylegal.com

A new complaint issued by the National Labor Relations Board (NLRB), in Hartford, Connecticut, on October 27, 2010 has the potential to affect police officers, supervisors, their unions and police departments in general.  It is one of the few labor board actions taken with respect to social networking sites in the context of labor law.  It is likely to be followed by numerous others in the future.  Given the unique nature of law enforcement, and through my observations in my practice involving the legal defense of law enforcement officers, I believe that it is highly likely that these issues will be raised in connection with the legal defense of law enforcement officers.  

THE NLRB COMPLAINT

The NLRB complaint alleges that an ambulance service illegally terminated an employee who posted, on her personal Facebook page, some negative comments about her supervisor.  The NLRB’s complaint also alleges that the company, American Medical Response of Connecticut, Inc., illegally denied union representation to the employee during an investigatory interview, and maintained and enforced an overly broad blogging and internet posting policy under the National Labor Relations Act.

The employee in question had been required by her supervisor to respond to a customer complaint about her work, in writing, and had requested a union representative, which was denied.   Subsequently, when the employee left work for the day she went home and posted a negative comment on her personal Facebook page about the supervisor, which drew supportive responses from her co-workers, and of course led to additional comments or a negative variety about the supervisor.  The supervisor later found out about the personal Facebook postings and terminated the employee because such postings had alleged violated the company’s internet posting policies despite the fact that she had been at home when she posted the information. 

The NLRB, in conducting an investigation and filing a complaint found that the employee’s Facebook postings constituted protected concerted activity, and that “the company’s blogging and internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission.”  NLRB Press Release, Nov. 2, 2010.  The NLRB, in moving forward on the complaint, has alleged that the company provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity.

THE APPLICATION OF THE NLRB COMPLAINT TO LAW ENFORCEMENT  EMPLOYMENT

There is a hearing on the case is scheduled for January 25, 2011.  While these issues will be debated before an Administrative Judge and most likely in the court system, the filing of a complaint of this type by the NLRB is unique and will start the debate about whether Facebook and other social networking sites can be considered in the context of protected speech under the NLRA and other statutes, such as the Civil Service Reform Act of 1978 (also known as the Federal Service Labor-Management Relations Statute), Pub. L. 95-454, 5 U.S.C. §7101 et seq., in addition to other state and local labor statutes that adopt many of the rulings and interpretations of the NLRB.

For law enforcement officers, this type of case, if successfully prosecuted and upheld by the courts might very well add to the already existing First Amendment protections for law enforcement and public sector employees which derive from the Supreme Court’s holding in Pickering v. Board of Education, 391 U.S. 563 (1968).  The Pickering case, for many years, has stood for the proposition that public sector employees, by the very nature of their employment, do not forfeit their First Amendment rights.  A copy of the NLRB press release can be downloaded here.  Download NLRB Facebook