Bill of Rights Does Not Impose Additional Duty Of Fair Representation

Laurie Bisch is an officer with the Las Vegas Metropolitan Police Department. Officers in Metro are represented by the Las Vegas Police Protective Association (PPA).

In 2008, while Bisch was off duty, her dog bit her daughter’s 17-year-old friend. Bisch took the girl to an urgent care facility for treatment. Unable to contact the girl’s mother and concerned that the urgent care would not provide treatment without a legal guardian present, Bisch represented to the urgent care staff that the girl was actually her own daughter, using both her daughter’s name and birthday. Bisch paid for the treatment with her own funds and did not use her employer-provided health insurance.

Upon learning of the dog bite and ensuing medical treatment, the girl’s mother filed a complaint with Metro, alleging that Bisch had committed insurance fraud by misrepresenting the girl’s identity to the hospital. The complaint resulted in an internal affairs investigation into Bisch. Although the IA investigator confirmed that Bisch had not used her insurance to pay for the treatment, IA nonetheless scheduled an interview with Bisch.

Bisch informed her PPA representative that she would bring her private attorney to the interview, but requested that a PPA representative also be present. The PPA responded that per its bylaws, it provided representation only when the member did not procure his or her own attorney. The interview proceeded without PPA representation.

After considering and rejecting charges of identity theft, Metro eventually sustained a conduct unbecoming charge against Bisch, and imposed a written reprimand. Bisch responded by filing a complaint with Nevada’s Employee Management Relations Board against both the PPA and LVMPD. Bisch alleged that the PPA had breached its duty of fair representation when it refused to represent her at her IA interview.

The Nevada Supreme Court turned away Bisch’s complaint. Bisch argued that the PPA’s policy of not providing a representative to appear on behalf of an officer who has retained counsel was a violation of the representation rights provided to peace officers under Nevada’s statutory Peace Officer Bill of Rights. Bisch contended that the Bill of Rights unambiguously granted her a right to have two representatives of her choosing at her interview, and that the PPA’s refusal to provide her with a second representative constituted a violation of the statute.

The Court demurred, finding that the Bill of Rights “does not expressly impose any affirmative duties, but only provides the employee the right to have two representatives of his or her choosing present at an interrogation, which would necessarily prevent the employer from barring the employee from having two representatives. The statute does not impose any duty for any entity to provide a representative. Nothing in the Bill of Rights governs the PPA’s responsibility toward its members.”

Bisch v. Las Vegas Metropolitan Police Department, 302 P.3d 1108 (Nev. 2013).

Note: Curiously, the Court did not address a more basic problem with Bisch’s claim. The duty of fair representation only exists where a union has taken on the role of acting as the employee’s exclusive representative. This means that usually DFR claims are confined to the bargaining process itself and the grievance procedure in the union contract. Under Nevada’s Bill of Rights, the PPA was not the exclusive representative since the statute allows more than one representative. Many courts would have simply found that the possibility of alternate representation meant that the duty of fair representation simply did not apply to an internal affairs interview.