The Police Law Blog: Laws and Regulations

Laws and Regulations

02/28/2011

Police Officer’s Section 1983 Claims Dismissed by the Third Circuit

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

SUMMARY OF CASE

Steve Armbruster, a Kutztown University police officer filed an appeal from an adverse decision by the U.S. District Court for the Eastern District of Pennsylvania, in Armbruster v. Cavanaugh, 2010 U.S. Dist. LEXIS 22288 (E.D. Pa. Mar. 9, 2010) regarding his claims under 42 U.S.C. § 1983 against university officials and the police chief of his department on the basis of the First and Fourteenth Amendments.

The case essentially involved a student protest where the individual students had engaged in a peaceful protest, and counter-protest where the students involved had followed officer requests to move away from university buildings. Subsequently, some students got upset at the political issues being debated and complained to university personnel.

As a result, the university president requested that Officer Armbruster to “push” the protesters off campus. Officer Armbruster did not respond to the university president’s request to do so and the request then went to the Chief of Police. The Chief of Police for the department then observed the situation and ordered Officer Armbruster, again, to push the protesters off campus because of his perception that they were engaged in disorderly conduct.

In the officer’s view, the protesters had not been acting in a disorderly manner and objected to the Chief’s orders, claiming that they would violate the civil rights of the protesters and might subject himself to personal liability. The Chief of Police then relieved Officer Armbruster of his duties and eventually placed him on administrative leave. Finally, Officer Armbruster was given a 5-day suspension as a result of the objections he lodged.

Officer Armbruster then filed suit alleging that he had been subject to violations by the department of the First and Fourteenth Amendments to the Constitution. The U.S. District Court, after hearing the claims, dismissed them, causing the appeal to the U.S. Court of Appeals for the Third Circuit.

LEGAL ISSUES

In the appeal, Officer Armbruster conceded his first claim, based on the First Amendment, but had appealed the dismissal of his claims under the Fourteenth Amendment. This claim by Officer Armbruster had alleged a violation of his right to refuse to obey an unconstitutional order after he was ordered to arrest or threaten to arrest demonstrators for disorderly conduct.

The U.S. District Court had previously concluded that a purported right to refuse to violate others' constitutional rights had not been recognized. The Third Circuit also disagreed with Officer Armbruster’s Fourteenth Amendment claims, refusing to expand the doctrine of substantive due process under the Fourteenth Amendment to include employment disputes involving a refusal to obey an allegedly unlawful order and subsequent suspension.

In addition, the officer's proposed remedy, that the U.S. District Court issue an injunction shielding the officer from future disciplinary action should he refuse an unconstitutional order in the future, could not be issued. Lastly, the Third Circuit found that while Officer Armbruster did not have a constitutional right to disobey a supervisory order based on his own analysis of the law, that the officer could instead seek recourse through grievance and employment-related procedures if desired.

Specifically, the Third Circuit held that:

“While a police officer does not have a constitutional right to disobey an order based on his or her own opinion of law, an officer who is disciplined for questioning the legality of a superior's orders is not entirely without a remedy. The officer typically has recourse to union grievance procedures or other employment-related legal channels. See, e.g., Homar v. Gilbert, 63 F. Supp. 2d 559, 564, 570 n.11 (M.D. Pa. 1999) (discussing the availability of grievance procedures in the context of a case brought by a campus police officer alleging due process violations).”

Subsequently, the Third Circuit dismissed Officer Armbruster’s complaint on appeal, agreeing with the U.S. District Court.

THOUGHTS ON THE COURT’S RULING

In these types of cases, it can be hard to convince a court to issue an injunction like the one sought. There are generally too many unknowns in issuing a broad injunction like the one sought. The best advice in this type of case for an officer would be to make sure that your objections to any perceived illegal orders are clearly documented and known (having witnesses to the order and objection also helps). Once the objections and legal issues about a proposed order for police action are established, the Third Circuit is of the belief that the officer should obey the order (with the facts at hand here) and file a grievance later.

These issues can get very complex, so an officer faced with this type of legal issues should consult with an attorney as soon as possible.

Posted at 12:46 PM in Laws and Regulations, Section 1983 Defense for Officers | Permalink

Tags: 14th, 1983, 1983 claim, 1st, 42 U.S.C. 1983, Chief of Police, civil rights, Complaint, First Amendment, Fourteenth Amendment, garcetti, grievance, illegal order, lawsuit, obey, Officer, order, personal liability, police officer, Supervisor, university

01/30/2011

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.

Posted at 09:10 PM in Administrative Defense, Fitness for Duty Exams, Labor Law, Laws and Regulations | Permalink

Tags: 339.301, CFR, CFR, doctor, federal, FFD, Fitness for duty examination, law enforcement officer, mental, physical, police department, police officer, state, Title 5

01/03/2011

President Signs 9/11 James Zadroga First Responders Bill Into Law

President Obama signed the James Zadroga 9/11 Health and Compensation Act, H.R. 847, into law on January 2, 2011. The new law provides that rescue and recovery workers, residents, students, and others suffering from health consequences related to the World Trade Center attacks will have access to the medical monitoring and treatment they need in the years to come. Here is a copy of the final version which was signed into law. Download Zadroga Final Bill Passage 911

Posted at 08:52 PM in Current Affairs, Laws and Regulations | Permalink

Tags: 9/11, 9/11 health and compensation act, Congress, firefighters, H.R. 847, House, law enforcement, medical monitoring, medical treatment, Passed, Senate, zadroga

12/27/2010

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.

Posted at 07:41 PM in Administrative Defense, Current Affairs, Labor Law, Laws and Regulations | Permalink

Tags: agurs, candor, credibility, dc, disciplinary action, district of columbia, giglio, Giglio v. U.S., impeachment, internal politics, kyles, law enforcement officer, lewis list, police officer, prosecutor, removal, termination, truthfulness

10/26/2010

Federal Law Enforcement Officers & the Douglas Factors in 2010

By John V. Berry, Esq. of Berry & Berry, PLLC

When Federal Law Enforcement Officers (LEOs) are subjected to disciplinary actions by their federal police departments and/or related agencies, our law practice frequently uses a legal approach to attempt to mitigate (lessen) the penalty in these proposed disciplinary actions. The purpose of this article is to take a look at the current application, as of 2010, of the Douglas (mitigation) factors to Federal LEOs facing discipline in the federal sector. The attempt by defense counsel to reduce the severity of the penalty focuses on an attempt by the defense to mitigate proposed penalties in such cases.

Mitigation, for Federal LEOs, is almost always referred to in the context of the Douglas factors, a landmark case in federal personnel law issued in 1981, which specifies 12 factors which can be used to mitigate or to aggravate a proposed disciplinary penalty. Douglas v. Veterans Affairs, 5 M.S.P.R. 280, 305-306 (1981).

What are the Douglas Factors?

The Douglas factors are used to mitigate or aggravate disciplinary actions for Federal LEOs and other federal employees that are proposed for disciplinary action. The factors originally relate back to 1981 in the Douglas case, where the Merit Systems Protection Board examined what issues might come up to mitigate disciplinary penalties. Typically, the issue of mitigation comes up when an officer receives a proposed disciplinary action or termination and I have to come into the officer's case and argue that the penalty being proposed must be mitigated.

To take a step back for the moment, it is key to understand that the Douglas factors are the second part of the disciplinary process; the first being whether or not the allegations themselves are true and can be proven. In the context of federal disciplinary actions, there are always these two parts to a Federal LEO’s disciplinary defense: (1) disprove the facts; and (2) contest the penalty as unreasonable in light of the Douglas (mitigating) factors. While these Douglas factors apply generally to all Federal employees, this article takes a look at how they apply specifically to federal law enforcement in the year 2010.

To start, when evaluating Douglas factor arguments for Federal LEOs, the first step is to consider which of these mitigating factors might apply so that one can argue for a lesser penalty. It is important to note that there are 12 individual factors for consideration and that they should all be reviewed for possible use in a case.

THE 12 INDIVIDUAL DOUGLAS FACTORS

Under each of these 12 factors I have noted whether they are used primarily in mitigation (reduce the disciplinary penalty) or in aggravation (used by departments to increase penalties in these types of disciplinary cases that Federal LEOs are sure to face at some point:

(1) The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated;

a. This factor tends to be used in aggravation by federal police departments.

b. Typically, in disciplinary actions, departments will use this factor to attempt to increase disciplinary penalties for officers based on their perceived view of the seriousness of the charges. For example, this comes up a lot in charges involving Giglio (candor/truthfulness charges) where police departments attempt to increase disciplinary penalties on this basis.

(2) The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position (mainly used by departments for the aggravation of law enforcement officer/supervisor penalties in disciplinary cases);

a. This factor is used quite commonly by federal police departments in an attempt to aggravate or raise the penalties against federal police officers. For example, see McManus v. Dep’t of Justice, 66 MSPR 564, 566 (1995) (federal correctional officers must conform to a higher standard of conduct than non-law enforcement employees).

b. Most often, a proposed disciplinary or adverse action against a federal law enforcement officer will attempt to tie their police officer position to the disciplinary charges at issue in order to increase a disciplinary penalty. Police officer's misconduct “was extremely serious and inconsistent with his duties and responsibilities as a law enforcement officer.” Watson v. Dep’t of Justice, 64 F.3d 1524, 1530 (Fed. Cir. 1995) (“Law enforcement officers are held to a higher standard of conduct than are other federal employees . . . .”).

c. The extent of this higher standard for federal law enforcement, for purposes of the Douglas factors can vary with the type of federal law enforcement official involved, i.e. supervisory or non-supervisory. Kirk v. Dep’t of Navy 58 MSPR 663, 671-72 (1993).

(3) The employee’s past disciplinary record (mainly used by departments for the aggravation of law enforcement officer/supervisor penalties in disciplinary cases);

a. This factor can be used as mitigating in nature or as an aggravating factor. The key in mitigation is to show that the federal police officer does not have a disciplinary record, or in the alternative, does not have one involving similar alleged misconduct as the one currently alleged.

(4) The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;

a. This is a significant mitigating factor for federal law enforcement officers, and one that we argue quite often on their behalf. Typically, in federal police officer cases, this is one of the best methods for an officer to attempt to mitigate disciplinary penalties by focusing on their background, successful career and performance, commendations from the department or the public and their awards.

(5) The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s work ability to perform assigned duties;

a. This Douglas factor is almost always used by federal police departments to attempt to aggravate a proposed penalty. However, the allegations of loss of trust towards federal law enforcement officers must be specific and detailed. Departments tend to make mistakes in regards to this particular Douglas factor in disciplining police officers.

(6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses;

a. Typically, this factor is one that we argue in favor of mitigation on behalf of the officer involved. In particular, it is usually a given, depending on the particular federal sector police department involved, that some individuals on the department will have been charged and found guilty of similar administrative misconduct. If there are prior cases involving similar charges where the police official or officer involved received a lower penalty than what is being proposed for the officer pending discipline, we usually argue this as a basis for mitigation and seek a lower penalty for the officer that we are representing.

(7) Consistency of the penalty with any applicable agency table of penalties;

a. Typically, this is a factor argued by the Agency to justify their penalty. These tables of penalties are usually broad and can cover many kinds of broadly categorized misconduct charges. Therefore, this Douglas factor is usually argued by management to support a particular penalty or their position in a case.

(8) The notoriety of the offense or its impact upon the reputation of the agency;

a. This is a factor used to aggravate the penalty. Typically used in cases where a large number of individuals are aware of the disciplinary charges in the case or where the news media becomes aware of the situation and reports on it. I have found that this factor is commonly misused to attempt to raise the penalty in a disciplinary case.

(9) The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;

a. This is a significant mitigating factor that is used quite frequently in our firm’s defense of federal law enforcement officers. Typically, it is clear that an alleged charge relates to duties or actions that the officer was never tried in or perhaps received training to the opposite of what the charges and/or allegations contend. This factor is key to mitigating discipline when we represent federal law enforcement officers on appeal in either the Merit Systems Protection Board or in arbitration.

(10) The potential for the employee’s rehabilitation;

a. This Douglas factor is important in disciplinary action cases for federal law enforcement officer clients. The potential for rehabilitation is a critical factor relied upon by administrative judges and arbitrators in mitigating discipline in cases involving federal law enforcement officers. Often times this factor comes into play with federal law enforcement officer cases where the officer has reported their own misconduct, before the Department itself is aware of any wrongdoing. If this has occurred, there is a strong legal argument for mitigating discipline in the case for the officer.

(11) Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and

a. This is a significant factor for mitigation for a federal law enforcement officer, and a general catch all mitigating factor. See Brown v. Dep’t of Treasury, 61 MSPR (1994). It can be used to explain a particular set of misconduct as involving personality issues and conflicts between an officer/supervisor and their superior or other miscellaneous mitigating factors in a case.

(12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

a. This factor is very significant in that there might very well be other types of penalties, other than the one proposed, for an officer. Often times, one could argue that an officer or law enforcement supervisor’s penalty should be mitigated and that training be provided instead. The key is to stress that the penalty being proposed does not fit the misconduct in terms of addressing future misconduct. This is becoming a major factor in cases presently.

Of these 12 Douglas factors, there are a number of them that come up more often than others, given the nature of the federal law enforcement officer profession. In practice, it is important to highlight the law enforcement professional years of service, performance record, citizen and department based commendations.

There are many more details that can up in an individual officer's case. Please contact our law firm at www.berrylegal.com if you have any questions about how these Douglas factors might affect a case or situation that is applicable to you. Remember, it is always key to obtain legal counsel when evaluating a particular Douglas factor argument because each factor applies differently in individual cases.

Posted at 09:29 PM in Administrative Defense, Laws and Regulations | Permalink

Tags: 2010, aggravating factors, Douglas factors, douglas v. va, douglas v. veterans affairs, fed leos, federal law enforcement officers, LEO, merit systems protection board, mitigating factors, mitigating factors, MSPB, police officer, police supervisor

09/30/2010

LEOSA 2010 Passes the House of Representatives and Goes to the President

In very positive news for the law enforcement community, the House of Representatives passed the Law Enforcement Officers Safety Act of 2010, which will now go to the President of the United States for signature. The House passed the bill after the significant efforts of the national Fraternal Order of Police, and it’s President, Chuck Canterbury.

The legislation, also often known as LEOSA 2010, will help in a number of ways. The soon to be law (following the President’s expected signature) will amends the federal criminal code to include a law enforcement officer of the Amtrak Police Department and the Federal Reserve or a law enforcement or police officer of the executive branch as a qualified law enforcement officer as eligible to carry concealed firearms. The legislation also changes the definition of "firearm" to include ammunition not expressly prohibited by federal law or subject to the provisions of the National Firearms Act.

The law revises the definition of "qualified retired law enforcement officer" to: (1) include officers separated (currently, retired) in good standing from service with a public agency as a law enforcement officer; and (2) reduce the years-of-service requirement for such officers from 15 to 10 years.

The new law also revises the (1) requirements for firearms certification for such separated officers to allow firearms training in accordance with the standards of the officer's former agency, the state in which such officer resides, or if such state has not established training standards, standards established by a law enforcement agency within the state or those used by a certified firearms instructor; and also (2) mental health requirements for such officers.

The law helps clarify the definition of law enforcement officer to include those employed by the Executive Branch of the Federal Government and who are classified as GS-0083 police officers. Finally, the law reduces the number of years of aggregate service needed to meet the definition of “qualified retired law enforcement officer.” In sum, this is very helpful legislation and bound to help clarify the earlier legislation. See the full bill that was passed here. Download LEOSA 2010

Posted at 06:49 PM in H.R. 218, Laws and Regulations | Permalink

Tags: amtrak police, federal reserve police, FOP, Fraternal Order of Police, GS-0083, House, law enforcement officers safety act, LEOSA, LEOSA 2010, passed, police officer, qualified retired law enforcement officer, retirement law enforcement officer, right to carry, S. 1132, Senate, Senate Bill 1132

09/29/2010

House Passes 9/11 First Responders Health Care Bill, H.R. 847

The U.S. House of Representatives passed House Bill 847, which is Congressional legislation which will provide First Responders, like police officers, firefighters and other rescue workers with medical treatment for illnesses brought about through the breathing in of toxic fumes, dust particles and smoke during the September 11, 2001 attack on the World Trade Center site.

House Bill 847 passed by about a 2-to-1 margin, and now will go to the U.S. Senate where its passage is not certain at this point. The new legislation provides for $3.2 billion over the course of the next 8 years to monitor and medically treat injuries as a result of the exposure of First Responders to the toxic effects of Ground Zero.

The legislation came about as a result of the desire to have a permanent medical program for 9/11 First Responders. House Bill 847 is also known as the James Zadroga 9/11 Health and Compensation Act, bearing the name of a New York City detective who participated in the rescue and recovery efforts at Ground Zero for about three weeks after the September 11, 2001 attacks. Detective Zadroga died in January, 2006 after he developed symptoms which have become common amongst first responders on the scene of rescue efforts during 9/11, and which includes difficulty breathing and flulike symptoms.

The key provisions in House Bill 847 as related to First Responders, include:

PART 1--WTC RESPONDERS

`SEC. 3311. IDENTIFICATION OF WTC RESPONDERS AND PROVISION OF WTC-RELATED MONITORING SERVICES.

`(a) WTC Responder Defined-

`(1) IN GENERAL- For purposes of this title, the term `WTC responder' means any of the following individuals, subject to paragraph (4):

`(A) CURRENTLY IDENTIFIED RESPONDER- An individual who has been identified as eligible for monitoring under the arrangements as in effect on the date of the enactment of this title between the National Institute for Occupational Safety and Health and--

`(i) the consortium coordinated by Mt. Sinai Hospital in New York City that coordinates the monitoring and treatment for enrolled WTC responders other than with respect to those covered under the arrangement with the Fire Department of New York City; or

`(ii) the Fire Department of New York City.

`(B) RESPONDER WHO MEETS CURRENT ELIGIBILITY CRITERIA- An individual who meets the current eligibility criteria described in paragraph (2).

`(C) RESPONDER WHO MEETS MODIFIED ELIGIBILITY CRITERIA- An individual who--

`(i) performed rescue, recovery, demolition, debris cleanup, or other related services in the New York City disaster area in response to the September 11, 2001, terrorist attacks, regardless of whether such services were performed by a State or Federal employee or member of the National Guard or otherwise; and

`(ii) meets such eligibility criteria relating to exposure to airborne toxins, other hazards, or adverse conditions resulting from the September 11, 2001, terrorist attacks as the WTC Program Administrator, after consultation with the WTC Scientific/Technical Advisory Committee, determines appropriate.

The WTC Program Administrator shall not modify such eligibility criteria on or after the date that the number of enrollments of WTC responders has reached 80 percent of the limit described in paragraph (4) or on or after the date that the number of certifications for certified-eligible WTC survivors under section 3321(a)(2)(B) has reached 80 percent of the limit described in section 3321(a)(3).

`(2) CURRENT ELIGIBILITY CRITERIA- The eligibility criteria described in this paragraph for an individual is that the individual is described in any of the following categories:

`(A) FIREFIGHTERS AND RELATED PERSONNEL- The individual--

`(i) was a member of the Fire Department of New York City (whether fire or emergency personnel, active or retired) who participated at least one day in the rescue and recovery effort at any of the former World Trade Center sites (including Ground Zero, Staten Island Landfill, and the New York City Chief Medical Examiner's Office) for any time during the period beginning on September 11, 2001, and ending on July 31, 2002; or

`(ii)(I) is a surviving immediate family member of an individual who was a member of the Fire Department of New York City (whether fire or emergency personnel, active or retired) and was killed at the World Trade site on September 11, 2001; and

`(II) received any treatment for a WTC-related health condition described in section 3312(a)(1)(A)(ii) (relating to mental health conditions) on or before September 1, 2008.

`(B) LAW ENFORCEMENT OFFICERS AND WTC RESCUE, RECOVERY, AND CLEANUP WORKERS- The individual--

`(i) worked or volunteered onsite in rescue, recovery, debris cleanup, or related support services in lower Manhattan (south of Canal St.), the Staten Island Landfill, or the barge loading piers, for at least 4 hours during the period beginning on September 11, 2001, and ending on September 14, 2001, for at least 24 hours during the period beginning on September 11, 2001, and ending on September 30, 2001, or for at least 80 hours during the period beginning on September 11, 2001, and ending on July 31, 2002;

`(ii)(I) was a member of the Police Department of New York City (whether active or retired) or a member of the Port Authority Police of the Port Authority of New York and New Jersey (whether active or retired) who participated onsite in rescue, recovery, debris cleanup, or related services in lower Manhattan (south of Canal St.), including Ground Zero, the Staten Island Landfill, or the barge loading piers, for at least 4 hours during the period beginning September 11, 2001, and ending on September 14, 2001;

`(II) participated onsite in rescue, recovery, debris cleanup, or related services in at Ground Zero, the Staten Island Landfill, or the barge loading piers, for at least one day during the period beginning on September 11, 2001, and ending on July 31, 2002;

`(III) participated onsite in rescue, recovery, debris cleanup, or related services in lower Manhattan (south of Canal St.) for at least 24 hours during the period beginning on September 11, 2001, and ending on September 30, 2001; or

`(IV) participated onsite in rescue, recovery, debris cleanup, or related services in lower Manhattan (south of Canal St.) for at least 80 hours during the period beginning on September 11, 2001, and ending on July 31, 2002;

`(iii) was an employee of the Office of the Chief Medical Examiner of New York City involved in the examination and handling of human remains from the World Trade Center attacks, or other morgue worker who performed similar post-September 11 functions for such Office staff, during the period beginning on September 11, 2001, and ending on July 31, 2002;

`(iv) was a worker in the Port Authority Trans-Hudson Corporation Tunnel for at least 24 hours during the period beginning on February 1, 2002, and ending on July 1, 2002; or

`(v) was a vehicle-maintenance worker who was exposed to debris from the former World Trade Center while retrieving, driving, cleaning, repairing, and maintaining vehicles contaminated by airborne toxins from the September 11, 2001, terrorist attacks during a duration and period described in subparagraph (A).

`(C) RESPONDERS TO THE SEPTEMBER 11 ATTACKS AT THE PENTAGON AND SHANKSVILLE, PENNSYLVANIA- The individual--

`(i)(I) was a member of a fire or police department (whether fire or emergency personnel, active or retired), worked for a recovery or cleanup contractor, or was a volunteer; and performed rescue, recovery, demolition, debris cleanup, or other related services at the Pentagon site of the terrorist-related aircraft crash of September 11, 2001, during the period beginning on September 11, 2001, and ending on the date on which the cleanup of the site was concluded, as determined by the WTC Program Administrator; or

`(II) was a member of a fire or police department (whether fire or emergency personnel, active or retired), worked for a recovery or cleanup contractor, or was a volunteer; and performed rescue, recovery, demolition, debris cleanup, or other related services at the Shanksville, Pennsylvania, site of the terrorist-related aircraft crash of September 11, 2001, during the period beginning on September 11, 2001, and ending on the date on which the cleanup of the site was concluded, as determined by the WTC Program Administrator; and

`(ii) is determined by the WTC Program Administrator to be at an increased risk of developing a WTC-related health condition as a result of exposure to airborne toxins, other hazards, or adverse conditions resulting from the September 11, 2001, terrorist attacks, and meets such eligibility criteria related to such exposures, as the WTC Program Administrator determines are appropriate, after consultation with the WTC Scientific/Technical Advisory Committee.

`(3) ENROLLMENT PROCESS-

`(A) IN GENERAL- The WTC Program Administrator shall establish a process for enrolling WTC responders in the WTC Program. Under such process--

`(i) WTC responders described in paragraph (1)(A) shall be deemed to be enrolled in such Program;

`(ii) subject to clause (iii), the Administrator shall enroll in such program individuals who are determined to be WTC responders;

`(iii) the Administrator shall deny such enrollment to an individual if the Administrator determines that the numerical limitation in paragraph (4) on enrollment of WTC responders has been met;

`(iv) there shall be no fee charged to the applicant for making an application for such enrollment;

`(v) the Administrator shall make a determination on such an application not later than 60 days after the date of filing the application; and

`(vi) an individual who is denied enrollment in such Program shall have an opportunity to appeal such determination in a manner established under such process.

`(B) TIMING-

`(i) CURRENTLY IDENTIFIED RESPONDERS- In accordance with subparagraph (A)(i), the WTC Program Administrator shall enroll an individual described in paragraph (1)(A) in the WTC Program not later than July 1, 2011.

`(ii) OTHER RESPONDERS- In accordance with subparagraph (A)(ii) and consistent with paragraph (4), the WTC Program Administrator shall enroll any other individual who is determined to be a WTC responder in the WTC Program at the time of such determination.

. . .

`(b) Monitoring Benefits-

`(1) IN GENERAL- In the case of an enrolled WTC responder (other than one described in subsection (a)(2)(A)(ii)), the WTC Program shall provide for monitoring benefits that include monitoring consistent with protocols approved by the WTC Program Administrator and including clinical examinations and long-term health monitoring and analysis. In the case of an enrolled WTC responder who is an active member of the Fire Department of New York City, the responder shall receive such benefits as part of the individual's periodic company medical exams.

`(2) PROVISION OF MONITORING BENEFITS- The monitoring benefits under paragraph (1) shall be provided through the Clinical Center of Excellence for the type of individual involved or, in the case of an individual residing outside the New York metropolitan area, under an arrangement under section 3313.

`SEC. 3312. TREATMENT OF ENROLLED WTC RESPONDERS FOR WTC-RELATED HEALTH CONDITIONS.

`(a) WTC-Related Health Condition Defined-

`(1) IN GENERAL- For purposes of this title, the term `WTC-related health condition' means a condition that--

`(A)(i) is an illness or health condition for which exposure to airborne toxins, any other hazard, or any other adverse condition resulting from the September 11, 2001, terrorist attacks, based on an examination by a medical professional with experience in treating or diagnosing the health conditions included in the applicable list of WTC-related health conditions, is substantially likely to be a significant factor in aggravating, contributing to, or causing the illness or health condition, as determined under paragraph (2); or

`(ii) is a mental health condition for which such attacks, based on an examination by a medical professional with experience in treating or diagnosing the health conditions included in the applicable list of WTC-related health conditions, is substantially likely to be a significant factor in aggravating, contributing to, or causing the condition, as determined under paragraph (2); and

`(B) is included in the applicable list of WTC-related health conditions or--

`(i) with respect to a WTC responder, is provided certification of coverage under subsection (b)(2)(B)(iii); or

`(ii) with respect to a screening-eligible WTC survivor or certified-eligible WTC survivor, is provided certification of coverage under subsection (b)(2)(B)(iii), as applied under section 3322(a).

In the case of a WTC responder described in section 3311(a)(2)(A)(ii) (relating to a surviving immediate family member of a firefighter), such term does not include an illness or health condition described in subparagraph (A)(i).

`(2) DETERMINATION- The determination under paragraph (1) or subsection (b) of whether the September 11, 2001, terrorist attacks were substantially likely to be a significant factor in aggravating, contributing to, or causing an individual's illness or health condition shall be made based on an assessment of the following:

`(A) The individual's exposure to airborne toxins, any other hazard, or any other adverse condition resulting from the terrorist attacks. Such exposure shall be--

`(i) evaluated and characterized through the use of a standardized, population-appropriate questionnaire approved by the Director of the National Institute for Occupational Safety and Health; and

`(ii) assessed and documented by a medical professional with experience in treating or diagnosing health conditions included on the list of WTC-related health conditions.

`(B) The type of symptoms and temporal sequence of symptoms. Such symptoms shall be--

`(i) assessed through the use of a standardized, population-appropriate medical questionnaire approved by the Director of the National Institute for Occupational Safety and Health and a medical examination; and

`(ii) diagnosed and documented by a medical professional described in subparagraph (A)(ii).

`(3) LIST OF HEALTH CONDITIONS FOR WTC RESPONDERS- The list of health conditions for WTC responders consists of the following:

`(A) AERODIGESTIVE DISORDERS-

`(i) Interstitial lung diseases.

`(ii) Chronic respiratory disorder--fumes/vapors.

`(iii) Asthma.

`(iv) Reactive airways dysfunction syndrome (RADS).

`(v) WTC-exacerbated chronic obstructive pulmonary disease (COPD).

`(vi) Chronic cough syndrome.

`(vii) Upper airway hyperreactivity.

`(viii) Chronic rhinosinusitis.

`(ix) Chronic nasopharyngitis.

`(x) Chronic laryngitis.

`(xi) Gastroesophageal reflux disorder (GERD).

`(xii) Sleep apnea exacerbated by or related to a condition described in a previous clause.

`(B) MENTAL HEALTH CONDITIONS-

`(i) Posttraumatic stress disorder (PTSD).

`(ii) Major depressive disorder.

`(iii) Panic disorder.

`(iv) Generalized anxiety disorder.

`(v) Anxiety disorder (not otherwise specified).

`(vi) Depression (not otherwise specified).

`(vii) Acute stress disorder.

`(viii) Dysthymic disorder.

`(ix) Adjustment disorder.

`(x) Substance abuse.

`(C) MUSCULOSKELETAL DISORDERS FOR CERTAIN WTC RESPONDERS- In the case of a WTC responder described in paragraph (4), a condition described in such paragraph.

`(D) ADDITIONAL CONDITIONS- Any cancer (or type of cancer) or other condition added, pursuant to paragraph (5) or (6), to the list under this paragraph.

`(4) MUSCULOSKELETAL DISORDERS-

`(A) IN GENERAL- For purposes of this title, in the case of a WTC responder who received any treatment for a WTC-related musculoskeletal disorder on or before September 11, 2003, the list of health conditions in paragraph (3) shall include:

`(i) Low back pain.

`(ii) Carpal tunnel syndrome (CTS).

`(iii) Other musculoskeletal disorders.

`(B) DEFINITION- The term `WTC-related musculoskeletal disorder' means a chronic or recurrent disorder of the musculoskeletal system caused by heavy lifting or repetitive strain on the joints or musculoskeletal system occurring during rescue or recovery efforts in the New York City disaster area in the aftermath of the September 11, 2001, terrorist attacks.

`(5) CANCER-

`(A) IN GENERAL- The WTC Program Administrator shall periodically conduct a review of all available scientific and medical evidence, including findings and recommendations of Clinical Centers of Excellence, published in peer-reviewed journals to determine if, based on such evidence, cancer or a certain type of cancer should be added to the applicable list of WTC-related health conditions.

The next step in the process is for the U.S. Senate to pass this legislation and then hopefully the 9/11 First Responders will be able to obtain a permanent program for much needed medical health care and monitoring that the country owes them for their dedication to the protecting all of us before, during and after the 9/11 attacks. Download a copy of the full legislation here. Download HR 847

Posted at 09:44 PM in Current Affairs, Laws and Regulations | Permalink

Tags: 9/11, Benefits, First Responder, ground zero, health care, House, House Bill 847. H.R. 847, James Zadroga 9/11 Health and Compensation Act of 2010, medical care, monitoring, Senate, smoke dust, toxic, Zadroga

09/02/2010

U.S. Court of Appeals Upholds D.C. MPD Police Officers First Amendment Retaliation Case

In a recent decision, Lefande v. District of Columbia, 2010 WL 2869765 (D.C. Cir. July 23, 2010), the U.S. Court of Appeals for the District of Columbia Circuit affirmed the protective scope of the First Amendment for law enforcement officers in a case that involved personnel issues. This topic is of primary importance to the law enforcement officers that I represent, especially those federal and District of Columbia police officers and supervisors that may need legal assistance and/or legal defense for having made statements on matters of importance which leads to retaliation and unwarranted discipline.

Background for the D.C. Police Officer’s First Amendment Lawsuit

In the Lefande case, the Appellant, was an unpaid volunteer reserve police officer with the District of Columbia Metropolitan Police Department (DC MPD). He was terminated from that position by the DC MPD because he gave an interview with a local newspaper, revealing a number of shortcomings within the administration of the DC MPD. As a result of the newspaper article, the officer was first given an official reprimand. Subsequently, the DC MPD refused to reinstate him until the officer brought suit against the department on the basis of First and Fourteenth Amendment violations. The lawsuit eventually resulted in a settlement and the officer’s return to duty, but that did not end the retaliation.

Subsequently, the DC MPD revamped their general orders a year later to provide the Chief of Police unchecked power (no administrative review) in which to terminate reserve officers. The Appellant, and 200 other affected reserve officers filed suit against the DC MPD to challenge these changes to the general orders. Then, one week prior to oral argument in the case, the officer was terminated by the Chief of Police.

The Appellant challenged his termination under the First Amendment, claiming that he was terminated as a result of his challenge to the new general order regulations. The Appellant filed suit in the U.S. District Court for the District of Columbia. The U.S. District Court dismissed the Appellant’s lawsuit because of the court’s belief that the retaliation alleged did not involve a matter of public concern. See Lefande v. District of Columbia, Civ. Action No. 09-217 (D.D.C. Feb. 4, 2009).

Appellant filed his appeal in this case with the U.S. Court of Appeals for the District of Columbia Circuit, who reversed the dismissal of the First Amendment retaliation lawsuit. In reversing the U.S. District Court, the D.C. Circuit explained the core issue involved for the police officer, that involving the issue of public concern. The D.C. Circuit held that “[i]f the speech is not on a matter of public concern, ‘the employee has not First Amendment cause of action based on his or her employment.’” The D.C. Circuit, in reversing the dismissal, reasoned that:

Lefande’s speech involved a General Order and an emergency rulemaking issued by the Chief of the MPD, which regulations, among other things, empowered the Chief to fire Reserve Corps members without process. According to Lefande, at the time of the Chief’s actions, District law prohibited their dismissal without cause or due process. Thus, Lefande maintained that, by asserting the power to fire Reserve Corps members without cause, and by restricting other aspects of the Corps authority and access to training, the Chief substantially altered the rights and role of the Entire Reserve Corps, whose stated mission-according to the General Order itself-is to “play an integral part in the [MPD's] endeavor to provide high quality police service.” MPD General Order 101.03 § II (emphasis added). Moreover, according to LeFande, the Chief made this change without providing the statutorily-mandated public notice and comment, in the absence of any enabling emergency.

The Court’s Ruling Upholding the Police Officer’s First Amendment Retaliation Claim

This, according to the D.C. Circuit was a matter of public concern for the police officers, holding that:

We believe LeFande's allegations of procedural irregularities that unquestionably affect an integral component of police service are “relevan[t] to the public's evaluation” of the MPD and its Chief. We think them more relevant than intra-office squabbles in Connick, 461 U.S. at 148, and Barnes, 840 F.2d at 982, and more public than the speech in Murray, 741 F.2d at 438. Presumably the public is, and should be, at least as concerned about these alleged defects as it was about, for instance, rule violations by a university athletic department, see Hall, 856 F.2d at 259, or teachers' dress and its purported relationship to the market for government debt, see Connick, 461 U.S. at 146 (citing Mt. Healthy, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)).

The D.C. Circuit, also offered additional rationale for dismissing the DC MPD’s contention that personnel matters involving police officers could not be brought as First Amendment cases:

Still, the District says LeFande's suit does not address a matter of public concern because its allegations relate to a mere “personnel matter.” But we reject the proposition that a personnel matter per se cannot be a matter of public concern, even if it may seriously affect the public welfare. For instance, were the Chief of Police to assert the power to fire, without process, all MPD officers, paid and unpaid, that action would “be fairly considered as relating to [a] matter of political, social, or other concern to the community,” Connick, 461 U.S. at 146, although it relates to a “personnel matter.” And, while this case may present a closer question, we conclude that LeFande's speech-alleging the Chief of Police violated District law and the Constitution by significantly altering the framework by which the Reserve Corps was governed, relying in part on an emergency procedure when there was no emergency-also implicates a “matter of political, social, or other concern to the community.” Id.; see Hall, 856 F.2d at 259. It exceeds “individual personnel disputes and grievances” and involves “issues about which information is needed or appropriate to enable the members of society to make informed decisions about the operation of their government.” Hall, 856 F.2d at 259 (quoting McKinley, 705 F.2d at 1114) (internal quotations and citations omitted). In short, it relates to a matter of public concern. See id.; see also Jason Cherkis, Anger in Reserve, Washington City Paper, Jul. 19, 2006, available at http://www. washingtoncitypa-per.com/blogs/citydesk/2006/07/19/anger-in-reserve (elimination of Reserve Corps members' job security led them to “cut back on volunteering,” which “hit hard on July 4, when the department fielded only a fraction of its reserve phalanx”).

The Impact for Future Police Officer First Amendment Defenses

What does this holding mean for police officers? I think it has the potential to have a major impact, and certainly may have one for police officers in the District of Columbia and those federal law enforcement officers located within the jurisdiction of the U.S. Court of Appeals for the D.C. Circuit (i.e. those located in Washington, D.C.). Having represented a number of police officers in defensive matters involving statements or speech made in any number of situations while at work, I believe that this will be an extremely helpful case to use in the legal defense of police officers and supervisors. Ironically, because the DC MPD contested the lawsuit on the basis that personnel matters involving police officers, per se, could not be matters of public concern (and lost), this opens the door to additional similar types of lawsuits of this nature in the future. As a result of Lefande, I believe that there could be any number of First Amendment defenses made in the context of personnel situations now that the D.C. Circuit has established that these types of cases can in fact establish a First Amendment violation. This type of case also does a lot to affirm the principles of Pickering v. Board of Education, 391 U.S. 568 (1968), one of the central cases for public employee First Amendment defenses.

Posted at 11:59 AM in First Amendment, Laws and Regulations, New Court Cases | Permalink

Tags: case, civil action, Connick, D.C. Circuit, DC Metropolitan Police Department, DC MPD, District of Columbia, First Amendment, general orders, law enforcement officer, lawsuit, Lefande, matter of public concern, MPD, personnel, personnel issues, Pickering, police officer, protected speech, retaliation, termination, U.S. Court of Appeals

08/10/2010

The Current State of Federal LEO Retirement Provisions

As one of the primary practice areas for the law firm of Berry & Berry, PLLC involves the legal representation of federal law enforcement officers (LEO or LEOs), we update the changes to the law and current qualification criteria for LEO status / federal LEO retirement coverage from time to time. After review some of the latest cases, we pass on the following update on these important issues.

As many federal law enforcement officers (LEOs) are aware, Federal civil service retirement laws extend special retirement benefits to them because they serve in rigorous law enforcement positions and risk their lives every day. Congress, in enacting this special program for federal law enforcement, however, intended to make it sometimes difficult to qualify for this special retirement coverage.

In particular, because these LEO retirement programs are more costly to the government than traditional retirement plans (in addition to often resulting in the retirement of important employees at a time when they would otherwise have continued to work for a number of years) eligibility for federal LEO retirement is strictly construed. Watson v. Dep’t of Navy, 262 F.3d 1292, 1298 (Fed.Cir.2001), cert. denied, 534 U.S. 1083 (2002). Additionally, in order to qualify for LEO retirement, LEOs bear the burden of proving entitlement thereto by a preponderance of the evidence. Fagergren v. Dep’t of the Interior, 98 M.S.P.R. 649 (2005), aff'd, 166 Fed.Appx. 483 (Fed.Cir.2006).

Typically, when an officer who is not already presumed to be covered under federal LEO retirement coverage wants to obtain this status, he or she will eventually contact the human resources staff for the individual federal agency. The goal in doing so is to obtain approval for this coverage from your agency.

The head of the federal agency in question (or their designee) then makes the initial decision as to whether a particular individual or position should be approved for LEO retirement coverage. If the federal agency determines the need for new positions that meet the statutory and regulatory definitions relating to a LEO (and therefore could receive enhanced retirement benefits and be subject to a mandatory retirement age), the agency sends a notice to OPM. 5 C.F.R. §§ 831.911(a) and 842.808(a).

Each federal agency, in first reviewing LEO entitlement looks to the laws and regulations which govern LEO retirements. The Federal Employees Retirement System (FERS), enacted by Congress defines a primary LEO to be one who holds a position, the “primary duties” of which involve the “investigation, apprehension, or detention” of those suspected or convicted of federal offenses. 5 U.S.C. § 8401(17)(A). Per regulation, OPM has defined “primary duties” in a three-part test.

The primary duties for a LEO under this test are those that:

(a) Are paramount in influence or weight; that is, constitute the basic reasons for the existence of the position;

(b) Occupy a substantial portion of the individual's working time over a typical work cycle; and

5 C.F.R. § 842.802.

Under this evaluation, if an employee spends at least 50 percent of his time performing certain duties, those duties are usually considered to be his or her primary duties. Furthermore, duties that are of an emergency, incidental, or temporary nature cannot be considered ‘primary’ even if they meet the substantial portion of time criterion.

When evaluating entitled to federal LEO retirement coverage for federal LEOs, I often look at the day-to-day duties of the particular LEO, along with a review of the individual LEO’s position description, their job description and any other materials which document a LEO’s duties within the context of the FERS statute.

If a federal LEO feels that they have been wrongly excluded from LEO retirement coverage, the LEO may appeal the final decision of the federal agency denying an the LEO’s request for the approval of a position as rigorous, to the Merit Systems Protection Board. If an MSPB Administrative Judge does not grant the relief sought, the federal LEO can then appeal the AJ’s opinion to the full MSPB, and from there to the U.S. Court of Appeals for the Federal Circuit.

A recent review in August of 2010 revealed that the caselaw in this area has remained fairly consistent over the last few years, but with the number of changes through restructuring of LEO positions, along with a number of new laws on the books over the past few years I fully expect that LEO issues at the MSPB will again start to appear in larger numbers as new legislative issues impact the OPM and Federal Circuit definitions of what it means to be a Federal LEO. The issues can be complex and a federal LEO is definitely advised to navigate the attempt to gain coverage with the help of an attorney.

I have also attached a recent GAO report on the subject that might be of interest to federal LEOs which can be downloaded here Download Fed Leo GAO Report

Posted at 09:46 PM in Current Affairs, Laws and Regulations, New Court Cases | Permalink

Tags: 2010, caselaw, caselaw, Congress, federal agency, federal retirement, federal retirement, FERS, Law enforcement officer, LEO, LEOs, MSPB, OPM, qualification, qualification, Retirement Coverage, status, update

07/27/2010

Pennsylvania Supreme Court Upholds Negotiability by Union of Smokeless Tobacco Products for Use by Officers

In a new case issued by the Pennsylvania Supreme Court, Ellwood v. Pennsylvania Labor Relations Board, No. 44 WAP 2008 (Pa. 2010), decided July 21, 2010, that court upheld the negotiability of the use of smokeless tobacco products by police officers. The court considered the issue of whether a municipal employer was required to bargain with a police union over a ban on the use of tobacco products in the workplace, in the Department’s vehicles and around other equipment.

The Pennsylvania Supreme Court held that the municipality had a duty to bargain over a ban of the use of these tobacco products with the police union. The facts in the appeal were as follows. The Ellwood City Police union represented police officers employed by the Ellwood City Borough. Prior to June 19, 2006, the Borough had permitted its law enforcement officers the ability to smoke and use tobacco products in its buildings, vehicles, and equipment. Subsequently, on June 19, 2006 the Town Council passed a resolution which prohibited the use of all tobacco products on or in municipally-owned buildings, vehicles, and equipment.

The next day, the Mayor of Ellwood issued a memorandum to all city employees, including all police officers, ordering them to cease any such use of tobacco products. Prior to issuing the memorandum, the municipality had not bargained over the ban with the police union. The union then had filed an unfair labor practice, which was upheld. Subsequently, a lower court had reversed the labor board’s finding of an unfair labor practice and the union appealed the adverse ruling to the Pennsylvania Supreme Court.

The court, in ruling for the officers and the police union, framed the debate with the following two issues:

(a) May a municipality, pursuant to its general police powers, enact an ordinance barring the use of tobacco products in publicly owned buildings, including employee workplaces inaccessible to the public at large, without negotiating with the exclusive representative of its employees?

(b) Must a municipal employer bargain with the police labor organization over the ban on use of tobacco products in the workplace and in the employer’s vehicles and equipment?

The court held that an employer’s restrictions on employee tobacco use at work were subject to mandatory collective bargaining. The court also concluded that the Town Council’s Ordinance, which unilaterally banned all use of all tobacco in certain nonpublic

Areas, such as smokeless tobacco use in police officer’s non-public work areas and

Borough vehicles and equipment, and smoking in Borough vehicles not used for mass

transit and equipment impermissibly denied Borough police officers their statutorily guaranteed collective bargaining rights to negotiate over working conditions.

The case has a number of implications for other police officers and their unions across the United States and may make other types of policies easier to contest if not bargained over prior to enacting such changes.

Posted at 10:03 PM in Current Affairs, Laws and Regulations | Permalink | Comments (0)

Tags: collective bargaining, court, duty to bargain, Ellwood, law enforcement officer, Pennsylvania, police, police officers, police union, smokeless tobacco, tobacco, unfair labor practice

The Police Law Blog

A blog by lawyers for law enforcement officers about law enforcement issues.