INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE
SMALLER POLICE DEPARTMENT PROGRAM
“MANAGING PERSONNEL THROUGH
CORRECTIVE DISCIPLINE””
November, 2008
San Diego, California
By: Martin J. Mayer
JONES & MAYER
A. PROCEDURAL DUE PROCESS
1. Pre-Discipline Procedures
B. ADMINISTRATIVE INVESTIGATIONS – PEACE OFFICER ADMONISHMENT OF RIGHTS
C. ADMINISTRATIVE INVESTIGATIONS
D. ADMINISTRATIVE INVESTIGATIONS: EMPLOYEE STATEMENTS
E. AT WILL EMPLOYEES
F. DRUG TESTING
G. DUE PROCESS
H. INSUBORDINATION
I. PRIVACY
J. SEARCH OF EMPLOYEES
K. SPEECH
1. On-Duty: Unprotected Speech
2. Protected Speech
3. Off-Duty Speech in Public Forum
APPENDIX
THE IMPACT OF “BRADY” ON POLICE PERSONNEL RECORDS
GENERAL ORDER: SUBJECT: SAMPLE BRADY MATERIALS POLICY
BRADY v. STATE OF MARYLAND
BRADY RIFT BETWEEN PROSECUTORS AND LAW ENFORCEMENT AGENCIES THE CONFLICT
MARTIN J. MAYER
3777 North Harbor Boulevard
Fullerton, CA 92835
714-446-1400 telephone • 714-446-1448 facsimile
e-mail: mjm@jones-mayer.com
Martin J. Mayer is a name partner in the firm of Jones & Mayer (J&M) and serves as legal counsel to the Sheriffs and Chiefs of Police in approximately 70 law enforcement agencies throughout California. He serves as General Counsel to the California State Sheriffs Association (CSSA), the California Police Chiefs Association (CPCA) and the California Peace Officers Association (CPOA), and has done so for approximately 25 years. Mr. Mayer is also responsible to oversee the attorneys in the firm of J&M who serve as City Prosecutor in the 16 cities where the firm provides that legal service.
Prior to merging with the Law Office of Richard D. Jones, Mr. Mayer was a name partner in the firm of Mayer & Coble, which provided legal advice and representation to police and sheriffs departments and served as the City Prosecutor for several municipalities. He is a graduate of the City University of New York and St. John’s University School of Law. He began his professional career in New York City as a deputy Public Defender and served in that capacity for five years. After relocating to California in 1975 he became the Director of the Criminal Justice Planning Unit for the League of California Cities. In 1980 he entered the private practice of law focusing on issues arising out of law enforcement.
Mr. Mayer is a graduate of the 6th FBI National Law Institute at Quantico, Virginia (designed for police legal advisors) and was the first attorney in private practice to be invited to participate in the program. He also served for nine years as a POST reserve with the Downey Police Department.
Mr. Mayer writes and lectures extensively, in California and nationally, on legal issues which impact on law enforcement including, but not limited to, the use of force, pursuits, discipline and due process, public records, personnel files, and the Public Safety Officers Procedural Bill of Rights Act. He presents on behalf of numerous statewide law enforcement associations and the California Commission on Peace Officers Standards and Training (POST). He has served on many POST committees as a subject matter expert and has participated in several POST Telecourses, which are used for training peace officers throughout the state. Mr. Mayer is also the 2005 recipient of the “Governor’s Lifetime Achievement Award for Excellence in Peace Officer Training.”
Published Articles
A Potential Avalanche of Released Felons
California Sheriff, Vol. 22, No.4, October 2007
An Officer’s Use of Force: What is Reasonable?
California Sheriff, Vol.22, No. 3, July 2007
Multiple Case Decisions Impact Peace Officer’s Bill of Rights
California Sheriff, Vol.22, No.2, April 2007
Medical Marijuana: Law Enforcements “Rock and a Hard Place”
California Sheriff, Vol. 22, No. 1, January 2007
Public Employees, Politics and the First Amendment
California Sheriff, Vol. 21, No. 4, October 2006
Cost Recovery of Expenses Responding to DUI Incidents
California Sheriff, Vol. 21, No. 3, July 2006
Confidentiality of Peace Officers- Personnel Files Under Attack
California Sheriff, Vol. 21, No. 2, April 2006
FLSA – Who is Exempt?
California Sheriff, Vol. 21, No. 1, January 2006
Utilizing the Department’s Legal Counsel at Major Incidents
The Police Chief, Published by IACP, May 1998, Vol. LXV, Number 5
Fair Labor Standards Act & Police Personnel Administration
Journal of California Law Enforcement, Vol. 29, No. 2, 1995
The Police Chief, Published by IACP, April 1997, Vol. LXIV, Number 4
The ADA: Psych Evaluation; Background Investigation; Conditional Offer of Employment; Grievance Procedure California Peace Officer, 1994
ADA: Some Questions & Answers
California Peace Officer, Vol. 13, No. 4, 1993
Americans With Disabilities Act: Some Do’s and Don’ts
Journal of California Law Enforcement, Vol. 26, No.1, 1992
Penal Code Section 618–A Reason for Concern?
Journal of California Law Enforcement, Vol. 24 No. 3, 1990
To Provide or Not to Provide: No Longer a Question for Internal Affairs Investigations
Journal of California Law Enforcement, Vol. 24 No. 4, 1990
The Special Relationship Syndrome
California Peace Officer, December 1989
Officer Involved Shootings: A Procedural and Legal Analysis
Journal of California Law Enforcement, Vol. 23, No. 2, 1989
Speaking Engagements (Examples)
California Commission on Peace Officer’s Standards & Training (POST)
Executive Development Program
Police Mid-management Course
County Chiefs and Sheriff’s Associations Annual Training Retreats
1980 – present
California Peace Officer’s Association (CPOA)
Role of the Chief of Police
Discipline and Due Process
Legal Update (2 day session)
American’s With Disabilities Act (ADA)
1979 – present
American’s for Effective Law Enforcement (AELE)
Civil Liability Issues Affecting Law Enforcement
Discipline and Law Enforcement
1989 – present
Labor Relations Information System (LRIS)
Labor Relations and Disciplinary Procedures
1995 – present
International Association of Chief’s of Police (IACP)
Police Psychologist Committee – “Impact of Psychologists on Law Enforcement
Legal Officer’s Section – “Union Impact on Internal Affairs Investigations”
1997 – present
California State Sheriff’s Association (CSSA)
Legal Update at Annual Conference
1990 – present
California State University at Long Beach, Department of Criminal Justice
Legal Issues Affecting Internal Affairs Investigations
1992 – present
California Association of Law Enforcement Background Investigators
Legal Update Impacting Upon Background Investigations
1997 – present
League of California Cities Annual Conference
Chief of Police Department – Legal Update City Attorney Department –Civilian Review Boards
1998 – present
back to top
A. PROCEDURAL DUE PROCESS
“Due process” is defined as “Notice” and “an opportunity to be heard.” Although due process does not require a full scale pre-termination adversary hearing in all situations, at a minimum the employee must be given notice of the charges against him/her, an explanation of the employer’s evidence, and a meaningful opportunity to respond and present his/her side of the story*.
A pre-discipline procedure to guarantee the protection of constitutional due process is necessary in public employment, even when an appeal procedure including a post-discharge evidentiary hearing is available**. The purpose of a pre-discipline procedure is to “minimize the risk of error” in the manager’s initial decision. This procedure is intended to enable the employee to intelligently respond to the charges before the decision is made final. Ideally, that procedure will provide the manager with the employee’s version of the facts and will give the manager an opportunity to reevaluate the proposed decision in light of those facts.
back to top
1.Pre-Discipline Procedures
Following the United States Supreme Court’s mandate*** the California Supreme Court mandated the following****:
A. A written notice of charges must be prepared:
(1) The notice must include:
(a) The charges brought against the employee;
(b) A description of the acts or omissions and past performances that have led to the possible imposition of discipline;
(c) A statement indicating that the charges may result in some type of disciplinary action.
(2) A copy of the materials upon which the action is based must be attached to the notice. These materials must include all information necessary to enable the employee to prepare a response as well as all information on which the department intends to rely.
(3) The notice must be given to the employee prior to imposing discipline.
(4) It is not necessary that the Chief of Police, Sheriff or other disciplinary authority personally deliver the “Notice of Charges” to the employee and no requirement exists that the Chief of Police or Sheriff meet with the employee prior to hearing a response to the charges.
B. The employee must be given the opportunity to respond to the authority imposing the discipline:
(1) The response may be made orally and/or in writing;
(2) The employee has no right to an evidentiary hearing at this state of the disciplinary process;
(3) There is no requirement for the employee to be allowed to present evidence, call witnesses, or question witnesses against him/her.
C. Imposition of discipline:
(1) After having heard the employee’s response to the charges, discipline may be imposed immediately.
(2) To be effective the discipline must be in writing and served upon the employee.
———————–
The “Notice of Discipline” will be similar to the “Notice of Charges” except that it will contain the employees “Appeal” rights, or a statement that the employee waives such rights, if the matter has been settled at the pre-discipline conference.
These procedures take place after all other preliminary investigation has been completed and all reports have been submitted to the discipline authority. It is not necessary that this procedure be utilized in matters that will not result in suspension, demotion, or termination.
* Cleveland Board of Education v. Loudermill 105 S.Ct. 1487 (1985).
** Arnett v. Kennedy 416 U.S. 134 (1974).
*** Arnett v. Kennedy, supra.
**** Skelly v. State Personnel Board 15 Cal.3d 194 (1975).
B. ADMINISTRATIVE INVESTIGATIONS – PEACE OFFICER ADMONISHMENT OF RIGHTS
It is well established that a public employee has no absolute right to refuse to answer potentially incriminating questions posed by his employer. Instead, his/her self-incrimination rights are deemed adequately protected, when given the appropriate admonishments, by precluding any use of his/her statements at a subsequent criminal proceeding.*
The California Supreme Court stated that a peace officer, in addition to the admonishments required by the United States Supreme Court, must be given “Miranda” rights when it is apparent that he may be charged with a criminal offense.**
Once the “Miranda” rights have been given, the modifications of Lefkowitz-Garrity, supra, are applied and the officer must be informed that:
Although he has a right to remain silent and not incriminate himself;
his silence can be deemed insubordination and;
result in administrative discipline;
any statement he makes under compulsion of the threat of such discipline cannot be used against him in a later criminal proceeding; and
no statement made during the interrogation under duress, coercion, or threat of punitive action shall be admissible in any subsequent civil proceeding, except under specific conditions
———————–
* Garrity v. State of New Jersey 385 U.S. 493, 500 (1967); Lefkowitz v. Turley 414 U.S. 70, 77-79 (1973).
** Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822. Chief Justice Rose Bird pointed out that 3303(e) should be construed to permit sanctions against an officer only when there is a refusal to answer questions designed to elicit statements relating to official duties or fitness to be a police officer.
C. ADMINISTRATIVE INVESTIGATIONS
BLACK v. STEPHENS
662 F.2d 181 (3rd Cir. 1981)
A police chief’s promulgating and implementing a policy delaying the conducting of an administrative, disciplinary investigation of a police officer’s conduct until the criminal prosecution of the arrested suspect was completed could create liability for the police chief. The court held that the delaying of the disciplinary investigation encourages the use of excessive force and the filing of unwarranted charges against the criminal suspect and, therefore, is in violation of constitutional protections.
TOMER v. GATES
811 F.2nd 1240 (9th Cir. 1987)
A police officer who reasonably believed that his conduct was lawful should be allowed to claim the defense of qualified immunity at trial. (Ultimately, at trial, the qualified immunity was rejected by the court since the internal affairs investigator did not follow proper procedures in conducting the investigation.)
O’CONNOR v. ORTEGA
480 U.S. 709 (1987)
A public employer’s work-related search of an employee’s office must be reviewed pursuant to a reasonableness standard.
WARD v. CITY OF PORTLAND
857 F.2d 1373 (9th Cir. 1988) [Case withdrawn by plaintiff]
A city may require police officers involved in fatal shootings to write incident reports before consulting with legal counsel of their police association. The city has a strong, compelling interest in obtaining prompt, accurate and “unvarnished” reports of fatal shootings in order to be better equipped to train its officers in the prevention of such shootings. (This decision was predicated on the First Amendment Right of Association. In the State of California, additional protections have been afforded officers and they are therefore permitted, sometimes, to confer with counsel prior to completing the crime report.)
LOS ANGELES POLICE PROTECTIVE LEAGUE v. GATES
995 F.2d 1469 (9th Cir. 1990)
A police officer cannot be discharged for refusing to permit investigating officers with “an administrative search warrant” to search his home. “It is not proper to discharge an officer from duty in order to punish that officer for exercising rights guaranteed to him under the constitution.” “A police officer’s home cannot be invaded upon facts that would not permit the like invasion of the home of persons who are not police officers. Therefore, the administrative search warrant was improper and enforcement of the warrant would violate Gibson’s rights.”
SIEGERT v. GILLEY
500 U.S. 226 (1991)
Injury to reputation by itself is not a protected “liberty” interest.
U.S. v. TAKETA
923 F.2d 665 (9th Cir. 1991)
The warrantless video taping by the Drug Enforcement Administration, of one of their agents in his office, violated the Fourth Amendment since he was under DEA investigation. The video taping was not an investigation of work related employee misconduct, which is permitted under O’Connor v. Ortega, but rather was a search for evidence of criminal conduct. “While the burden of showing probable cause and obtaining a warrant may be intolerable for public employers . . . it is the “de rigueur” for law enforcement officials.”
RATTRAY v. NATIONAL CITY
36 F3d 1480 (9th Cir. 1994), cert. denied.
California constitution and Penal Code Section 632 protect the right of Californians of surreptitious eavesdropping and/or recordings of confidential communications. The “law enforcement exception” contained in PC Section 633 protects only electronic recording and eavesdropping in the course of criminal investigations or in the apprehension of law breakers. It cannot be utilized by law enforcement while conducting an administrative internal affairs investigation.
KINAMON v. UNITED STATES
45 F 3d 343 (9th Cir. 1995)
“As a general principle, the Fifth Amendment provides that an individual may not be compelled to answer a question unless, at a minimum, he is shielded from the use of his compelled answers and any evidence derived there from in any subsequent criminal case in which he is a defendant,” arising out of the circumstances.
LaCHANCE v. ERICKSON
118 S. Ct. 753 (1998)
A government agency can take adverse action against an employee who makes false statements during an internal affairs investigation, in response to an underlying charge of misconduct, in addition to adverse action for the underlying charge itself.
MASSACHUTTES PAROLE BOARD v. CIVIL SERVICE COMMISSION
716 N.E. 2d 155 (1999)
An employee was properly terminated for failing to appear at an administrative investigative investigation on the advice of his attorney. Good faith reliance on the advice of an attorney does not prevent an employer from terminating the employee.
GOODMAN v. DEPARTMENT OF CORRECTIONS
844 A. 2d 543 (N.J. APP. DIV. 2004)
A corrections officer’s dismissal is upheld in the absence of explicit legislative provisions requiring the dismissal of disciplinary charges if an appointing authority failed to conduct a departmental hearing within thirty (30) days. Absent prejudice to the officers, the law does not require dismissal of the charges.
STATE v. MEREDITH
96 P. 3d 342 (2004)
The Oregon Supreme Court upheld the use of an electronic tracking device which was used to monitor an employee’s movement during the workday. The court held that attaching such a transmitter to a department vehicle did not invade an employee’s right of privacy with respect to the vehicle’s location.
FRANKLIN v. CITY OF EVANSTON
384 F. 3d 838 (2004)
The city violated an employee’s procedural due process rights by failing to advise the employee of his Garrity rights during an administrative investigation while a criminal case for the same violation was pending.
ROORDA v. CITY OF ARNOLD
142 S. W. 3d 786 (MO APP. 2004)
A police chief’s dislike of an employee is not relevant evidence, and its exclusion does not violate the employee’s due process rights, since it did not cooperate or dispute any other evidence presented to the personnel board.
BIZZARRO v. MIRANDA
394 F. 3d 82 (2nd Cir. 2004)
Initiating disciplinary charges against officers for refusing to assist in an internal investigation was not arbitrary. The discipline was imposed to punish the officer for refusing to assist in the investigation and to deter other officers from similarly refusing to assist in investigations.
McKINLEY v. CITY OF MANSFIELD
404 F. 3d 418 (6th Cir. 2005)
An officer’s civil rights lawsuit against his superiors was reinstated after a prosecutor used his Garrity protective statements against him in subsequent criminal prosecution.
D. ADMINISTRATIVE INVESTIGATIONS: EMPLOYEE STATEMENTS
GWILLIM v. CITY OF SAN JOSE
929 F.2d 465 (9th Cir. 1991)
A Police Department does not violate a police officer’s constitutional right against self-incrimination when his coerced statement is given to the prosecutor for use in determining whether criminal charges should be filed against the officer. Court held that it is not the responsibility of the department to ensure that deputy district attorneys do not misuse the information provided to them.
IN RE GRAND JURY SUBPOENA ISSUED TO CUSTODIAN OF RECORDS, ST. LOUIS METROPOLITAN POLICE DEPARTMENT
89 Misc. 492 (USDC ED Mo. 2\16\90)
A U.S. District Judge quashed the Subpoenas Duces Tecum issued by a Federal Grand Jury of the St. Louis Police Department seeking the coerced statements of officers under investigation by Internal Affairs regarding a complaint of unnecessary force. The Court held that since the officers were challenging the discovery of their statement and they had not waived their Fifth Amendment right during the Internal Affairs interrogation and since the City had advised them that their IAD statements could not be used against them in criminal proceedings, the subpoena must be quashed and discovery denied.
(Note: Along these same lines, a review of the dismissal of the case against Lieutenant Colonel Oliver L. North shows that the Court took that action because the special prosecutor had failed to meet the “heavy burden” of proving that nothing North said when he was compelled to testify to congress was used against him. The court stated that prosecutors have an affirmative duty to prove that all evidence used in a trial is totally independent of what may have been disclosed by a reluctant witness. North had been told prior to his compelled testimony at congressional hearings that his statements would not be used against him in subsequent criminal proceedings. Since the independent prosecutor was unable to prove to the court that none of North’s congressional testimony influenced the Grand Jury indictment or subsequent conviction, the charges were ultimately dismissed.)
UNITED STATES OF AMERICA v. KOON
34 F.3d 1416 (9th Cir. 1994)
Neither the law enforcement agency nor its officers can keep the prosecution from obtaining compelled statements made by peace officers pursuant to internal affairs investigations regarding allegedly criminal misconduct. Where, during the internal affairs interrogation police officers invoke their Fifth Amendment rights and make statements under threat of removal from office, the statements are compelled and the government is precluded from using either the statement or information derived there from as evidence in a criminal trial. The government has the burden of proving at a Kastigar hearing by a preponderance of the evidence that the evidence it intends to introduce in criminal proceedings was not tainted by exposure to the officer’s compelled statements.
IN RE GRAND JURY SUBPOENAS DATED DECEMBER 7 AND 8, ISSUED TO BOB STOVER, CHIEF OF ALBUQUERQUE POLICE DEPT. v. UNITED STATES OF AMERICA
40 F.3d 1096 (10th Cir.1994)
The mere disclosure of a police officer’s potentially incriminating compelled statement made to internal affairs, to a grand jury, was not a per se violation of the officer’s Fifth Amendment privilege against self-incrimination.
KINAMON v. UNITED STATES
45 F3d 343 (9th Cir. 1995)
Reno Police Department conducted an IA investigation and ordered the plaintiff to answer all questions or face dismissal. He was informed that as a result of that compelled statement, nothing he said could be used against him in criminal proceedings. “As a general principle, the Fifth Amendment provides that an individual may not be compelled to answer a question unless, at a minimum, he is shielded from the use of his compelled answers and any evidence derived there from in any subsequent criminal case in which he is a defendant.” In addition, in accordance with numerous cases, the Reno Police Department could grant use immunity to its officer and the prohibition against the use of immunized testimony under l8 USC Section 6002 covers grand jury proceedings as well as trials.
IN RE GRAND JURY SUBPOENA, HUNTINGTON BEACH POLICE DEPT.
75 F3d 446 (9th Cir. 1996)
The Fifth Amendment does not protect against the production of internal affairs documents containing police officers’ compelled statements but does protect against the improper use of those statements by prosecutors. The employee if indicted would be entitled to a hearing pursuant to Kastigar v. United States where the government would have to establish there was no Fifth Amendment violation by the use of the officer’s compelled statement.
U.S. v. HERRING
83 F3d 1120 (9th Cir. 1996)
Prosecutors have a duty to learn of evidence obtained by police which could be favorable to the defendant and thereafter must turn it over to the defense. There is nothing however that requires the prosecutor to personally review the files of federal agents testifying – that responsibility can be delegated to someone other than the attorney actually prosecuting the case.
LaCHANCE v. ERICKSON
118 S.Ct. 753 (1998)
A government agency can take adverse action against an employee who makes false statements to an internal affairs investigator in responding to an underlying charge of misconduct, in addition to adverse action for the underlying charge itself.
LOS ANGELES POLICE DEPARTMENT v. UNITED REPORTING PUBLISHING
120 S. Ct. 483 (1999)
A state statute which places conditions on the use of public access of names and addresses of arrested individuals did not violate the First or Fourteenth Amendment. The purpose of the statute was simply to regulate access to information that was in the hands of local law enforcement agencies and did not prohibit a speaker from conveying information that the speaker already possessed.
PEOPLE v. MOOC
26 Cal. 4th 1216 (2001)
The California Supreme Court held that it was improper to require the production of a peace officer’s entire personnel record when the state statute allows a criminal defendant to compel discovery of evidence in the arresting officer’s personnel file which is relevant to the defendant’s ability to defend against a criminal charge.
THE BALTIMORE SUN COMPANY v. EHRLICH
356 F. Supp. 2d 577 (2005)
A governor’s direction that no one in the executive department or state agencies was to speak with a reporter from the Baltimore Sun was justified since the plaintiff’s demands were far beyond a citizen’s reasonable expectations of access to government representatives. The plaintiff’s motion for preliminary injunction was therefore denied and the governor’s motion to dismiss was granted.
E. AT WILL EMPLOYEES
McQUIRK v. DONNELLEY
189 F. 3rd 793 (1999)
Despite a release from liability for intentional torts signed by a former employee, statements made by a sheriff which were not truthful subjected the county and the sheriff to liability for defamatory statements. A release from future liabilities for all intentional torts is against public policy and not enforceable in California.
MATTER OF SWINTON v. SAFIR
697 NYS 2d 869 (1999)
A probationary employee can be terminated without a hearing absent of showing that the termination was in bad faith or for an impermissible reason.
HOBLER v. BRUEHER
325 F. 3d 1145 (2003)
An at will public employee may be terminated if political loyalty is an appropriate requirement for the effective performance of the public office. A confidential employee to a policy maker may be replaced by the successor for political reasons.
BUDD v. KELLY
788 NYS 2d 114 (2005)
When unrefuted evidence revealed that a probationary employee was absent from duty and dishonestly charged it to his annual leave thereby extending his probationary period, he can be terminated without a hearing. Since he did not admit the essential findings, however, he was entitled to a name clearing hearing.
GRAHAM v. CITY OF PHILADELPHIA
402 F. 3d 139 (3d Cir. 2005)
A probationary police officer was terminated after being arrested and charged with having sex with a minor. Following acquittal at trial, the employee requested a “name clearing hearing” which was denied. The court ruled that the employee had the opportunity to protect his reputation at the criminal trial and that negated his entitlement to a name clearing hearing.
F. DRUG TESTING
MC DONNELL v. HUNTER
809 F.2d 1302 (1987)
Urinalyses may be performed uniformly or by systematic random selection of those employees who have regular contact with prisoners on a day-to-day basis in medium or maximum security prisons. Selection must not be arbitrary or discriminatory.
NOTE: Addressing the use of consent forms the court stated: “(a)dvance consent to future unreasonable searches is not a reasonable condition of employment.”
LOVVORN v. CITY OF CHATTANOOGA
647 F.Supp. 875; aff’d (1986); 846 F.2d 1539 (1988)
A police department or fire department may not, consistent with the Fourth Amendment, subject an employee to urinalysis drug testing without reasonable suspicion that the individual has used drugs.
NATIONAL TREASURY EMPLOYEES UNION v. VAN RABB
489 U.S. 656 (1989)
The United States Supreme Court upheld a drug testing program of the U.S.Custom Service that required the taking of urine samples from candidates for positions involving drug interdiction or the carrying of firearms. The tests were to be mandatory for positions that met one or more of three criteria: [1] Direct involvement in the enforcement of drug-related laws; [2] The employee was required to carry a firearm; [3] The employee was required to handle “classified” material.
Finding that the purpose of the testing program was to deter drug use among employees in sensitive jobs who had access to illegal drugs or who were in positions vulnerable to blackmail or violence, the Court found that those governmental interests presented a special need that justified departure from the ordinary warrant and probable cause requirements for searches and seizures.
SKINNER v. RAILWAY LABOR EXECUTIVES’ ASSOCIATION
489 U.S. 602 (1989)
The need to curb substance abuse outweighed the employees’ legitimate interest in their own bodily integrity. It would be “most impracticable” to require individualized suspicion of substance abuse in the aftermath of a train accident when conditions are chaotic at best. The tests, the Court observed, pose only a limited threat to privacy interests in contrast to the government’s compelling need for [railroad] safety.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1245 v. SKINNER
913 F.2d 1454 (9th Cir. 1990)
Extensive drug testing for pipe line employees before employment, after an accident, randomly, based on reasonable cause and after rehabilitation is appropriate. While random testing without individual suspicion intrudes on an employee’s privacy there is a diminished expectation of privacy in working in an industry with strong safety needs.
RAILWAY LABOR EXECUTIVES’ ASSOC. v. SKINNER
934 F. 2d 1096 (9th Cir. 1991)
Random drug testing for “safety sensitive positions” does not violate the Fourth Amendment.
JACKSON v. GATES
975 F.2d 648 (9th Cir. 1992)
A police department cannot terminate an officer for refusing to comply with an order to provide a urine sample for drug testing absent an articulable reasonable basis for suspecting him or her of drug use. It is improper to discharge an officer from duty as punishment for exercising rights (in this case, the Fourth Amendment) guaranteed under the Constitution.
LODER v. CITY OF GLENDALE
14 Cal.4th 846, cert. denied, 118 S.Ct. 44 (1997)
Across-the-board drug testing is invalid for employees seeking promotion in non-safety classifications, but is valid for all job applicants regardless of classification..
GONZALES v. METROPOLITAN TRANSPORTATION AUTHORITY
174 F. 3rd. 1006 (1999)
The right to require random drug testing of employees can be justified if the employee performs “safety sensitive functions.” Since case law requires particularized facts to justify urine testing of employees, the employer must prove that the employee’s jobs would have placed the public at risk if they were impaired as a result of utilizing drugs.
GARRIDO v. COOK COUNTY SHERIFFS MERIT BOARD
811 N.E. 2d 312 (2004)
The Illinois Court of Appeal ordered the reinstatement of a deputy sheriff who had been terminated after testing positive for the presence of cocaine metabolites. The court found that a review of the facts proved that the employee tested positive due to her innocent consumption of tea which had been purchased in Peru when she and her husband traveled there.
COWETA COUNTY v. HENDERSON
606 S.E. 2d 87 (2004)
The Georgia Appellate Court upheld the termination of a firefighter after two random urine sample tests indicated the presence of drugs. The trial court improperly discounted the evidence supporting the personnel board’s decision to upheld the termination.
UNITED AUTO WORKERS v. WINTERS
385 F. 3d 1005 (6th Cir. 2004)
A random drug testing program for specific civil service employees, including probation and parole officers, non-custodial employees in prisons and medical personnel who delivered medical or psychological services to persons in state custody, did not violate the 4th Amendment. Due to the nature of those jobs, the state did not need to establish any record of any drug use or other basis for individualized suspicion.
LAW ENFORCEMENT LABOR SERVICES, INC. LOCAL 158 v. SHERBURNE COUNTY
695 N.W. 2d 630 (2005)
The Court of Appeals of Minnesota ruled that the establishment of a random drug testing policy by the county in accordance with the Minnesota Drug and Alcohol Testing in the Workplace Act did not constitute an unfair labor practice that further held that the county had to negotiate the implementation of the policy with the employee union.
ROSS v. RAGINGWIRE TELECOMMUNICATION, INC.
42 Cal. 4th 920 (2008)
Despite California’s medical marijuana law, it does not violate one’s right of privacy, nor is it discriminatory, to fire an employee who uses marijuana for medical reasons.
G. DUE PROCESS: PROCEDURAL
ARNETT v. KENNEDY
416 U.S. 134 (1974)
Same issues as Skelly on the Federal level and which the California Supreme Court relied heavily upon in its decision.
GULDEN v. MC CORKLE
680 F.2d 1070 (9th Cir. 1982) cert. denied
No constitutional bar to use of the polygraph. (See: Long Beach City Employee Association v. City of Long Beach, 41 Cal.3d 937)
CLEVELAND BOARD OF EDUCATION v. LOUDERMILL
470 U.S. 532 (1985)
While due process does not require a full scale pretermination adversary hearing in all situations, at a minimum the employee must be given notice of the charges, an explanation of the employer’s evidence, and a meaningful opportunity to respond and present his/her side of the story.
LEVENTHAL v. U.S. DEPARTMENT OF LABOR
766 F.2d 1351 (1985)
A pre-termination hearing is not required in emergency situations where a valid government interest justifies postponing the hearing until after the termination.
ALEXANDER v. CITY OF MENLO PARK
787 F.2d 1371 (1986)
An employee was denied due process when he was terminated without being advised of bumping rights which would have entitled him to another position.
MATTHEWS v. HARNEY COUNTY
819 F.2d 889 (9th Cir. 1987)
Employee must be notified of proposed dismissal as well as the charges and evidence supporting it before a pre-termination hearing is held.
BECKWITH v. COUNTY OF CLARK
827 F.2d 595 (9th Cir. 1987)
A (county) employee is entitled to constructive or actual notice that his civil service status, which gave him due process rights, was lost when he transferred to another position within the county.
GARRAGHTY v. JORDAN
830 F.2d 1295 (1987)
Due process principles do not require that a neutral decision maker make the decision to suspend an employee. It is not expected that the pre-deprivation proceeding will be conducted before a neutral decision maker. “Even in termination cases most courts have not required that pre-termination hearings be conducted by a neutral party, so long as grievance procedures provide for a post-termination hearing before a neutral body.”
DUCHESNE v. WILLIAMS
849 F.2d 1004 (1988)
The limited right of reply at a pre-disciplinary hearing is designed “to invoke the employers discretion, his sense of fairness and mutual respect, and his willingness to reconsider. It is not designed or well adapted to uncover the employer’s bias or corrupt motivation.”
SANCHEZ v. CITY OF SANTA ANA
915 F.2d 424 (9th Cir. 1990)
The removal of a police officer’s merit pay without a hearing violates due process. Sanchez had a property interest in the merit pay and section 3304 (b) provides that no punitive action may be taken against a police officer without providing the officer with an opportunity for an administrative appeal.
LOS ANGELES POLICE PROTECTIVE LEAGUE v. GATES
907 F.2d 879 (1990)
In a police officers’ suit for wrongful termination, it was error for a trial court, on remand from the appellate court, to engage in fact finding which was contrary to the findings of the jury in reaching its verdict.
ROTHSTEIN v. CITY OF DALLAS
901 F.2d 61 (5th Cir. 1990)
Probationary police officer in Dallas was fired for allegedly making obscene telephone calls. He requested an appeal and although he did not ask for a ” name clearing hearing” he did deny the charge against him and asked for administrative review of his termination. The Fifth Circuit in an en banc decision affirmed the award against the city stating that it was not necessary to “say the magic words” when requesting a name clearing hearing.
PANOZZO v. RHOADS
905 F.2d 135 (1990)
Preparing the charges against an officer did not render the Chief of Police incapable of judging a controversy on the basis of its own circumstances. (The issue of whether the predisciplinary hearing officer must be unbiased and impartial is now being raised on a fairly constant basis. Federal case decisions have held that no such requirement exists at the predisciplinary opportunity to respond.)
WALKER v. CITY OF BERKELEY
951 F.2d 182 (9th Cir. 1991)
Since Walker had a property interest in her employment, she had a due process right to a ruling by an unbiased decision maker at her post-termination hearing. Although there is no support for her to have an impartial decision maker at the pre-termination hearing case law dictates that she possessed such a right subsequent to her termination.
HOESTEREY v. CITY OF CATHEDRAL CITY
945 F.2d 317 (9th Cir. 1991)
A discharged employee who was not provided with a pretermination hearing may bring suit within one year from the date employment ceased.
ERICKSON v. PIERCE COUNTY
960 F.2d 801 (9th Cir. 1992)
Addressing the allegation that an employee was terminated from employment solely because of her political support of the incumbent’s opponent, the court held that the evidence failed to show that Erickson was terminated for that reason. “Terminations that allegedly violate the 1st and 14th Amendments are subjected to a three-part test to determine whether constitutional rights have been violated.” The employee must first establish that 1) the conduct at issue was subject to constitutional protection, and 2) that the constitutionally protected conduct was a substantial or motivating factor behind the termination. Once the terminated employee has established the first two elements, the employer must prove that it would have made the same decision to terminate, even if the employee had not engaged in the protected conduct.
MILLER v. COUNTY OF SANTA CRUZ
796 F.Supp. 1316 (1992)
The court stated that since the plaintiff failed to seek judicial review of her termination pursuant to Civil Procedure Code Section 1094.5, she is precluded from bringing an action for damages arising out of the same termination pursuant to federal civil rights statutes, since it involved the same primary rights.
MILLER v. COUNTY OF SANTA CRUZ
39 F.3d 1030 (9th Cir. 1994)
The failure of a sheriff’s department’s employee to seek judicial review in the Superior Court of California regarding his dismissal from public service precludes him from seeking redress through the federal court. As a matter of federal common law, federal courts give preclusive effect to the findings of state administrative tribunals in subsequent actions under Section l983.
STIESBERG v. STATE OF CALIFORNIA
80 F3d 353 (9th Cir. 1996)
The lateral transfer of a CHP captain which involved no change in rank, pay, or privileges, did not violate the employee’s constitutionally protected property or liberty interest even though it was done without prior notice and the captain believed it was punitive in nature.
CAMPANELLI v. BOCKRATH
100 F.3d 1476 (9th Cir. 1996)
After a coach was fired from the University of California at Berkeley, and filed a civil rights action against two university officials, the officials were subsequently quoted in newspaper articles making derogatory comments about the reasons behind the coach’s termination. The court, in citing a United States Supreme Court decision, Board of Regents v. Roth, stated that a public employer could be held liable for a procedural due process violation for terminating an employee if the employer made a charge “that might seriously damage (the terminated employee’s) standing and associations in the community or imposed on (a terminated employee) a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.” Although the statements were made after Campanelli had been terminated and not “in the course of termination,” the “defamatory statements are so closely related to discharge from employment that the discharge itself may become stigmatizing in the public eye.”
ROE v. CITY AND COUNTY OF SAN FRANCISCO
109 F. 3rd 578 (1997)
Prosecutors are entitled to absolute immunity from civil liability for their decisions to not prosecute a police officer’s cases without independent corroborating evidence. Prosecutors concluded that the officer was neither a credible nor reliable witness and their decision is entitled to absolute immunity from civil damages sought after the officer was removed from contact with members of the public.
NUNEZ v. CITY OF LOS ANGELES (LAPD)
147 F.3d 867 (1998)
Police officers do not have a constitutionally protected property or liberty interests in promotion. An expectation is not an entitlement or property interest. While there is a long established liberty interest in engaging in one’s chosen profession, there is no liberty interest in holding a particular position within an occupation.
HONEY v. DISTELRATH
195 F. 3rd 531, (1999)
Normally, a Section 1983 action is barred when due process could have been satisfied by a deprivation remedy. However, if the deprivation (failure to provide all documents to an employee which were the basis for the termination action) is the result of an official’s “abuse of his position” and therefore not “random and authorized” the employee’s action for wrongful discharge under Section 1983 was not prohibited.
VANDERWALKER v. KING COUNTY
2004 U.S. App. LEXIS 2989 (9th Cir. 2004)
An employee is not entitled to an unbiased Loudermill decision maker because the post-termination hearing decision maker was impartial. Additionally, the fact that the Sheriff signed of on an internal affairs investigation memo prior to the Loudermill hearing did not demonstrate the Sheriff’s pre-conceived desire to terminate the employee. The Sheriff’s signature was a necessary prerequisite to initiating the Laudermill process.
HUEMILLER v. OGDEN CIVIL SERVICE COMMISSION
101 P. 3d 394 (2004)
The Utah Court of Appeals held that an officer’s untruthfulness during an administrative investigation justified his termination from employment despite his previous length and quality of service.
COPLEY PRESS, INC. v. SUPERIOR COURT
39 Cal. 4th 1272 (2006)
The name of a deputy sheriff, who appealed his termination from employment, was protected under California law from disclosure to the public.
LEVINE v. CITY OF ALAMEDA
525 F. 3d 903 (2008)
City and city manager are not liable for constitutional violations where employee is deprived of a pre-termination hearing when a full evidentiary post-termination hearing is provided.
H. INSUBORDINATION
BERRY v. BAILEY
726 F. 2d 670 (11th Cir. 1984)
First Amendment does not give an officer the right to disobey an order, no matter how wrongful.
NOTE: An illegal order is a different matter.
DE SOTO v. YELLOW FREIGHT SYSTEMS, INC.
811 F.2d 1333 (9th Cir. 1987)
An employee who was fired for refusal to perform an act, erroneously thought to be illegal, was not entitled to relief under federal or state law.
PERKINS v. CITY OF WEST COVINA
113 F.3d 1004 (9th Cir. 1997)
Detailed notice of means to retrieve property seized under warrant must be given to owner.
I. PRIVACY
SHAWGO v. SPRADLIN
701 F.2d 470 (5th Cir. 1983)
Police officers can be disciplined for cohabitating.
BRIGGS v. NORTH MUSKEGON POLICE DEPARTMENT
563 F.Supp. 585, aff’d, (1983); 746 F.2d 1475, cert. denied, 105 S.Ct. 3535 (1984)
Officer could not be terminated for lascivious cohabitation where activities not prohibited by statute.
COLLINS v. BENDER
195 F. 3rd, 1076, (1999) WL 976807
The warrantless search of the home of a former law enforcement agent was not considered a “personnel action” under the Civil Service Reform Act. Personnel actions cannot be so broadly defined as to allow government supervisors to invade the private lives of federal employees under the guise of administrative oversight.
FLASKAMP v. DEARBORN PUBLIC SCHOOLS
385 F. 3d 935 (2004)
Suspension and denial of tenure of a high school teacher was neither irrational nor&