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No ‘High Level Of Privacy’ In Viewing Porn On Work Computer

Like many public records laws, Vermont’s Public Records Act exempts from disclosure “personal records” in which employees may have privacy interests. The limits of the exemption were recently tested in a case involving the Rutland Police Department. The Rutland Herald learned in 2009 that Rutland Police Department computers had been used to view and store pornography. Three employees were involved, referred to as Employees #1, 2, and 3. As…

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Even In ADA Lawsuit, State Not Entitled To See Trooper’s Psychiatric Records

Scott Butler, a trooper with the Louisiana Department of Public Safety and Corrections, sued the State under the Americans With Disabilities Act (ADA). Butler claimed that the State regarded him as disabled in violation of the ADA by requiring him to submit to an excessive psychiatric fitness-for-duty evaluation, denying him overtime opportunities and placing him on involuntary leave. Butler claimed the Department based its decisions on perceived impairments –…

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NY’s Highest Court Approves ‘Reasonable’ GPS Tracking Without Probable Cause In Disciplinary Cases

Michael Cunningham was the Director of Staff and Organizational Development of the New York State Department of Labor. In 2008, the Department began an investigation into Cunningham’s alleged unauthorized absences from duty and the falsification of records to conceal those absences. That investigation led to a disciplinary proceeding that resulted in a two-month suspension; it also led to a second investigation, because, after Cunningham eluded an investigator who was…

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City Has No Right To Request Tax Returns Of Police Officers, Firefighters

The City of Cleveland, Ohio had a residency requirement for its police officers and firefighters. Though a recently-enacted Ohio statute calls that residency requirement into question, for many years the City enforced the residency requirement through its disciplinary system. Ever since the residency requirement has been in effect, the City has directed municipal employees to prove their bona fide residency in Cleveland. As an initial part of the residency…

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Personnel Files Of Other Employees Can Be Redacted, But Not Sealed

Richelle Johnson was a police officer for the City of Baltimore, Maryland. Johnson retired, and then brought a lawsuit against the City, claiming that her retirement was forced, and that the City had violated the Americans With Disabilities Act in its treatment of her. One of Johnson’s claims was that six non-disabled officers had been treated differently than her. When the City filed a motion to dismiss Johnson’s lawsuit,…

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Identity Of Wounded Officers Need Not Be Disclosed To Newspaper

The Iron Horsemen is a nationwide outlaw motorcycle gang that has been based in Cincinnati for about 40 years. The gang deals in drugs, weapons, and prostitution. In the 1980s, threats and tension between the Iron Horsemen and the Cincinnati police were prevalent. One of the members of the Iron Horsemen had created a 12-gauge shotgun within his motorcycle handlebar to threaten police officers. Other members had threatened an…

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Fitness For Duty Evaluations May Not Be Privileged

Oda Poole and Stan North were police officers employed with the Rockford, Illinois Police Department on August 24, 2009 when they fatally shot Mark Barmore. Barmore’s estate sued Poole, North and the City, claiming that Poole and North used excessive force. During depositions, Poole and North refused to answer certain questions about their conversations with mental health professionals based on the psychotherapist-patient privilege. The City also refused to provide…

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Lieutenant’s Thumb Drive Subject To Disclosure

Duane Tompkins was a lieutenant with the Enfield, Connecticut Police Department. Tompkins downloaded certain official departmental forms onto his personal thumb drive for use by one of the officers in the Department’s canine unit. Prior to downloading the forms onto the thumb drive, Tompkins deleted from it all of his personal documents, including the texts of several instant message conversations between himself and other unidentified individuals and other personal…

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Names Of Officers Involved In Shootings Not Protected From

On December 12, 2010, Long Beach police officers shot and killed Douglas Zerby, an intoxicated, unarmed 35-year-old man who was carrying a garden hose nozzle that officers mistook for a gun. Following the shooting, a reporter made a public records act request to the City seeking the names of the officers involved in the shooting. The City notified the Long Beach Police Officers Association of the request. The Association…

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GPS Surveillance In Discipline Cases

The United States Supreme Court recently made headlines with its ruling in United States v. Jones, a criminal case involving the use of a GPS locator on a criminal defendant’s car. The case started in 2004, when Antoine Jones, owner and operator of a nightclub in the District of Columbia, came under suspicion of trafficking in narcotics and was made the target of an investigation by a joint FBI…

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NLRB Offers Additional Guidance on Social Media Issues, Continues To Expand Employee Rights in Social Media Outlets and to Scrutinize Employer Communication Policies

By Doug Hass, Chris Johlie and Amy Zdravecky (Editor’s note: Even though the NLRB does not cover public sector labor organizations, many state labor boards and courts turn to the NLRB’s decisions for guidance on how to interpret state law issues. The NLRB has been extremely active on the topic of an employer’s ability to restrict the off-site use of social media by employees. Because the law in the…

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Sheriff’s Talk Radio Comments Do Not Violate Right To Privacy Statute

David Clarke is the Sheriff of Milwaukee County, Wisconsin. A lawsuit against Clarke arose from a pair of on-air phone calls to a popular Milwaukee, Wisconsin radio show, one from Deputy David Hutchins and the other from Clarke. On May 17, 2007, a discussion regarding Clarke’s avoidance of certain African-American groups took place on the “Eric Von Show,” a listener-interactive radio show which is broadcasted on WMCS AM 1290….

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California Court Orders Disclosure Of Retiree Names, Pension Amounts

The California Foundation for Fiscal Responsibility (CFFR) filed a public records request with the San Diego County Employees Retirement Association, seeking the disclosure of the names of retirees who in any month in 2010 received $8,333 or more in pension benefits, the pension amounts, and how they were calculated. The Association argued that the records were exempt from disclosure because on balance the interests of retirees in privacy outweighed…

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California County Pension Amounts Not Shielded From Disclosure

California’s County Employees Retirement Law provides: “Sworn statements and individual records of members shall be confidential and shall not be disclosed to anyone except insofar as may be necessary for the administration of this chapter or upon order of a court of competent jurisdiction, or upon written authorization by the member.” When the Sacramento Bee newspaper requested the pension benefits of all Sacramento County retirees receiving more than $100,000…

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Motion To Disclose Personnel Files Should Be Filed Under Seal

William Taylor was a deputy chief of the Burbank, California Police Department. In September 2009, he sued the City for retaliation, alleging that he reported allegations of sexual harassment by a Department employee, that he complained that black and Hispanic employees were being fired because of their race, and that he had asked outside agencies to investigate a theft at the Department. Taylor believed he was initially demoted and…

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Q & A

From Ohio Question: Our contract states that all police officers will be full-time. Can the city (management) implement part time officers without negotiating because of budget problems? Answer: The general rule is that the implementation of part-time police jobs is a mandatory subject for bargaining, and cannot be unilaterally implemented without first negotiating with the labor organization. You should check with local counsel to determine whether Ohio follows that…

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Supreme Court Holds Background Check Does Not Violate Privacy Rights

Proponents of the right to privacy collectively exhaled when the Supreme Court decided National Aeronautic and Space Administration v. Nelson in January 2011. More than 30 years ago, the Court referred broadly to a constitutional privacy “interest in avoiding disclosure of personal matters.” Whalen v. Roe, 429 U.S. 589 (1977); Nixon v. Administrator of General Services, 433 U.S. 425 (1977). Some had predicted that the current makeup of the…

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Arbitration Awards Not Shielded From Public Disclosure

In July 2009, Wendy Ruderman, an employee of Philadelphia Newspapers, LLC, submitted a request to the City of Philadelphia under Pennsylvania’s “Right-to-Know Law” to review “all arbitration awards, including written decisions by arbitrators, pertaining to police officers in the years 2005, 2006, 2007, 2008 through the present.” The City reviewed Philadelphia Newspapers’ request and identified 187 arbitration decisions of varying lengths and formats that were subject to the request….

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Court Refuses To Shield Complaint History From Discovery

In a federal court civil suit brought against the City of Chicago and a number of police officers, the plaintiffs sought discovery of the disciplinary histories and complaint register (CR) entries for the officers and other Police Department personnel. The Court rejected the City’s arguments that the documents should be exempt from discovery. The Court found that “good cause does not exist to protect information contained in CR complaints…

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Police Sergeant’s Texting Leads To Supreme Court Privacy Decision

Of the 75 to 100 decisions the Supreme Court issues each year, only roughly half a dozen involve labor issues. Decisions involving public safety employees are extremely rare, coming up only once every five to ten years or so. It was thus an unusual event that a widely-anticipated case involving how the right to privacy applies to electronic communications involved a police sergeant. Jeff Quon was a sergeant for…

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Employer’s Sick Leave Policy Is The Equivalent Of A Reprimand

The Broome County, New York Sheriff’s Department sent a memorandum to some employees stating that it had examined their use of sick leave and was requiring each employee to provide proof of illness for all future sick leave use. The memorandum also stated that the County would impose discipline if employees failed to provide the requisite proof of illness. The employee’s labor organization, the Broome County Sheriff’s Department Employees,…

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Officers Fail To Provide Enough Evidence That Video Camera In Locker Room Was Working

A group of police officers for the City of Harrison, New York, brought a Fourth Amendment lawsuit against the City, alleging that the installation of a video camera in the Department’s men’s locker room violated their privacy rights. Finding a lack of evidence that the camera worked as intended, a federal court dismissed the lawsuit. The camera was designed to work with DigiVue computer software that had been installed…

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Columbus PD Sick Leave Verification Policy Called Into Question

Recent years have seen the sick leave verification programs of public safety employees increasingly under attack. Most usually, employees file lawsuits contending that an employer’s verification program violates their privacy rights under either the Americans With Disabilities Act or a general constitutional right to privacy. The sick leave verification policy for the Columbus, Ohio Police Department ran into tough sledding in federal court this summer. Under the policy, an…

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