Q & A

From Nevada

Question: A police association I represent is well compensated, but its predecessors gave up longevity many years ago. What is the trend regarding arbitrators awarding longevity pay?

Answer: A while back, I would have answered your question by saying that longevity is on the way out. Today, with the difficult time law enforcement agencies are having recruiting and retaining employees, I suspect that a police union would have a stronger argument for longevity, particularly if it could show recruiting and retention problems.

From Pennsylvania

Question: I understand that a statement given under Garrity cannot be used against an officer in a crimminal proceeding. Does the same apply to a civil case filed against the officer? Can the investigator who took the statement be compelled to testify to the officer’s statement in this civil case? Or, does this in fact violate the officer’s rights after basically being forced to give the statement?

Answer: Garrity is only a rule of criminal immunity. It does not prohibit the use of compelled statements in subsequent civil or disciplinary proceedings.

From Montana

Question: Is overtime that has not been paid in accordance with the collective bargaining agreement since 1996 considered a past practice and supersedes the contract language?

Answer: We’d need to know more about this situation to give any sort of definitive answer. However, as a general principle, if a past practice is long enough (and 11 years qualifies), consistent enough, and open and obvious enough, then arbitrators will likely treat the past practice in this way. First, if the past practice does not contradict a provision in the contract, arbitrators will be highly likely to enforce the past practice. The more the contract has been re-negotiated over the years in the presence of the past practice, the more likely it is that the past practice will be enforced.

Second, if the past practice is flatly contradictory to the contract, then arbitrators split into two camps. One camp holds that even clearly-defined past practices cannot contradict the contract, providing the party who wishes to enforce the contract gives notice of the intent to do so. The other camp holds that a past practice can actually modify existing contract provisions. We’ve never seen a survey on the issue, but it’s our impression that the two camps are roughly evenly split.

From Arizona

Question: How long should IA files be maintained?

Answer: In the absence of any labor contract, the only law mandating the retention schedule for internal affairs files is typically a public records law. Simply because IA files can be maintained, however, doesn’t mean that it’s good policy to do so. Police civil rights defense lawyers debate the issue all the time. One point of view is that an employer should maintain such files to show that it has responded appropriately in the past to allegations of misconduct. The other point of view is that retaining such records does little more than maintain a treasure trove of documents to be discovered by the next plaintiff’s lawyer to sue the employer.

This article appears in the December 2007 issue