REPRESENTING FOP MEMBERS NFOP Labor Services Pittsburgh, Pennsylvania August, 2015.

REPRESENTING FOP MEMBERSREPRESENTING FOP MEMBERS

NFOP Labor Services NFOP Labor Services Pittsburgh, PennsylvaniaPittsburgh, Pennsylvania

August, 2015August, 2015

WELCOMEWELCOME

Presented By:Presented By:National Fraternal Order of PoliceNational Fraternal Order of Police

Labor Services DivisionLabor Services Division

Instructor:Instructor:

Michael E. CovielloMichael E. Coviello

OVERVIEWOVERVIEW

The FOP RepresentativeThe FOP Representative

The Duty of Fair RepresentationThe Duty of Fair Representation

GrievancesGrievances

Officers’ RightsOfficers’ Rights

Critical IncidentsCritical Incidents

Just CauseJust Cause

The FOP The FOP RepresentativeRepresentative

The Role of the FOP The Role of the FOP RepresentativeRepresentative

The FOP Representative is the first The FOP Representative is the first line of defense of the CBA and the line of defense of the CBA and the members.members.

Representing Your MembersRepresenting Your Members

The duty and responsibility vested in you as The duty and responsibility vested in you as the individual designated to represent your the individual designated to represent your members is grave and all-encompassing, it members is grave and all-encompassing, it is a is a legallegal obligation requiring familiarity obligation requiring familiarity with all the following:with all the following:– The Collective Bargaining Agreement;The Collective Bargaining Agreement;– Departmental Policies, Practices, Rules and Departmental Policies, Practices, Rules and

Regulations, Policies and Procedures; and,Regulations, Policies and Procedures; and,– Local, State, and Federal Law and Legislation. Local, State, and Federal Law and Legislation.

The FOP RepresentativeThe FOP Representative

The representative must balance the The representative must balance the needs of the membership with needs of the membership with maintaining a positive, constructive maintaining a positive, constructive relationship with management.relationship with management.

In addition, the Duty of Fair In addition, the Duty of Fair Representation governs the activities Representation governs the activities of representatives and unions as a of representatives and unions as a whole from collective bargaining to whole from collective bargaining to processing grievances.processing grievances.

FOP Labor FOP Labor RepresentativeRepresentative

As a labor representative you are required to As a labor representative you are required to recognize the following:recognize the following:

(1) Violations of the collective bargaining (1) Violations of the collective bargaining agreement;agreement;

(2) Violations of the policies and procedures; (2) Violations of the policies and procedures; and,and,

(3) Violations of the Officer’s rights when being (3) Violations of the Officer’s rights when being disciplined. disciplined.

Representative’s Representative’s RequirementsRequirements

Investigate and know the background, Investigate and know the background, issues, and as many facts as possible.issues, and as many facts as possible.

Meet with the subject officer Meet with the subject officer at leastat least 30 30 minutes (minutes (EARLY AND OFTENEARLY AND OFTEN) prior to:) prior to:– A grievance hearing;A grievance hearing;– Internal Affairs interview; orInternal Affairs interview; or– Disciplinary hearing. Disciplinary hearing.

The Duty of Fair The Duty of Fair RepresentationRepresentation

The Duty of Fair Representation The Duty of Fair Representation requires Unions:requires Unions:– To represent all members fairly without To represent all members fairly without

discrimination;discrimination;– To determine the merits of all To determine the merits of all

grievances; and,grievances; and,– To act in good faith. To act in good faith.

Duty of Fair Duty of Fair Representation (continued)Representation (continued)

This duty applies to virtually every This duty applies to virtually every action the union might take as the action the union might take as the representative of employees, from its representative of employees, from its negotiation of the terms of a negotiation of the terms of a collective bargaining agreement to collective bargaining agreement to its handling of grievances arising its handling of grievances arising under that agreement. under that agreement.

Duty of Fair Duty of Fair Representation Representation

(continued)(continued)One of the exceptions to this rule One of the exceptions to this rule

provides that the union has provides that the union has no dutyno duty to assist the employees it represents to assist the employees it represents in filing claims under a workers in filing claims under a workers compensation statute or other laws. compensation statute or other laws.


(continued)(continued) The courts have held a union only The courts have held a union only

breaches its duty of fair representation if breaches its duty of fair representation if it acts Arbitrarily, in Bad Faith, or it acts Arbitrarily, in Bad Faith, or Discriminatorily.Discriminatorily.

Accordingly, the courts have refused to Accordingly, the courts have refused to overturn union decisions as arbitrary, so overturn union decisions as arbitrary, so long as they were based on a reasoned long as they were based on a reasoned decision by the union, even if the court decision by the union, even if the court might believe that decision was wrong.might believe that decision was wrong.


(continued)(continued) Investigate.Investigate. Pursue.Pursue. Enforce the collective bargaining Enforce the collective bargaining

agreement and policies and agreement and policies and procedures.procedures.

ConflictsConflicts

The DFR includes representing all The DFR includes representing all interests at the bargaining table.interests at the bargaining table.

This does not mean that everyone This does not mean that everyone gets what they want.gets what they want.

The union can concede benefits on The union can concede benefits on behalf of some members for the behalf of some members for the greater good of the unit as long as greater good of the unit as long as the union is acting in good faith.the union is acting in good faith.

ConflictsConflicts

When members of the same bargaining When members of the same bargaining unit make claims of wrongdoing unit make claims of wrongdoing against each other the Union must:against each other the Union must:– Not take sides;Not take sides;– Provide representation to each member Provide representation to each member

individually;individually;– Evaluate each claim or grievance Evaluate each claim or grievance

separately and in good faith; and,separately and in good faith; and,– Administer the CBA as to each member.Administer the CBA as to each member.

ConflictsConflicts

Depending upon the law of the jurisdiction, a Depending upon the law of the jurisdiction, a Union generally has no obligation to pursue Union generally has no obligation to pursue any claim not based upon a CBA provision.any claim not based upon a CBA provision.

Discrimination or other hostile work Discrimination or other hostile work environment claims are usually outside the environment claims are usually outside the CBA.CBA.

Perceived conflicts may arise when a member Perceived conflicts may arise when a member makes a claim against another member makes a claim against another member resulting in an investigation or discipline of resulting in an investigation or discipline of the non-charging member.the non-charging member.

The perception is irrelevant to the DFR. The perception is irrelevant to the DFR.

ConflictsConflicts

Information and education are very Information and education are very important.important.

Contact all interested parties and Contact all interested parties and explain the Union’s role.explain the Union’s role.

Call a special meeting.Call a special meeting. Bring in Lodge Counsel or outside Bring in Lodge Counsel or outside

expertise.expertise. COMMUNICATECOMMUNICATE

Representing FOP Members Representing FOP Members in Internal Investigationsin Internal Investigations

The CBA gives the employee the right to a The CBA gives the employee the right to a REPRESENTATIVE, not a WITNESSREPRESENTATIVE, not a WITNESS

Meet with the subject officer and get Meet with the subject officer and get prepared.prepared.

Grill the officer for every fact you can get.Grill the officer for every fact you can get. Dress appropriately for the occasion.Dress appropriately for the occasion. Demand to Know the type of investigation Demand to Know the type of investigation

being conducted.being conducted. Demand Demand GarrityGarrity warning- ON THE RECORD. warning- ON THE RECORD. Never ASSUME anything is OFF THE RECORD.Never ASSUME anything is OFF THE RECORD. Object to questions that are not narrowly Object to questions that are not narrowly

tailored to the scope of the employee’s duties.tailored to the scope of the employee’s duties.

FOP Representation FOP Representation

There is a difference between what a There is a difference between what a union contractually agrees to provide union contractually agrees to provide for members under a legal defense for members under a legal defense plan and what the union is obligated plan and what the union is obligated to do under the DFR.to do under the DFR.– Internal Affairs InvestigationsInternal Affairs Investigations– Critical Incidents Critical Incidents

The BIG PictureThe BIG Picture

Breaching the Duty of Fair Breaching the Duty of Fair Representation is not only an Unfair Representation is not only an Unfair Labor Practice, it is the single biggest Labor Practice, it is the single biggest way to lose membership and entire way to lose membership and entire bargaining units.bargaining units.

Representation is not based upon Representation is not based upon popularity.popularity.

There is a BIG PICTURE, the overall There is a BIG PICTURE, the overall benefit to the membership as a whole,benefit to the membership as a whole,

including effective bargaining.including effective bargaining.

What Is A What Is A Representative?Representative?

In short, a Representative is aIn short, a Representative is a

UNIONUNION

What is a Grievance?What is a Grievance?

Whatever the parties to a collective Whatever the parties to a collective bargaining agreement define it to be.bargaining agreement define it to be.

– Very Broad-Very Broad-AnyAny disagreement between disagreement between employer and the union or an employeeemployer and the union or an employee

– Very Narrow- The CBA limits its use and Very Narrow- The CBA limits its use and excludes certain actions by the employer from excludes certain actions by the employer from the grievance procedure (e.g. termination of a the grievance procedure (e.g. termination of a probationary employee; promotions)probationary employee; promotions)

Ultimately, a grievance is a complaint.Ultimately, a grievance is a complaint.

Two Types of GrievancesTwo Types of Grievances

There are two types of grievancesThere are two types of grievances– Contract interpretation grievancesContract interpretation grievances

The parties cannot agree on the The parties cannot agree on the interpretation of the language of the CBAinterpretation of the language of the CBA

The union has the burden of proofThe union has the burden of proof

– Disciplinary grievancesDisciplinary grievances An employee has been disciplined and the An employee has been disciplined and the

parties cannot agree on whether the parties cannot agree on whether the discipline is justifieddiscipline is justified

The employer has the burden of proofThe employer has the burden of proof

Contract Grievance Contract Grievance Procedure Procedure

Include a clause in the CBA that Include a clause in the CBA that outlines what constitutes a grievance:outlines what constitutes a grievance:– (example) The parties agree that a (example) The parties agree that a

violation of the provisions of this violation of the provisions of this agreement shall be deemed to constitute agreement shall be deemed to constitute a grievance, which is subject to and shall a grievance, which is subject to and shall be processed through the provisions as be processed through the provisions as outlined belowoutlined below

Contract Grievance Procedure Contract Grievance Procedure (continued) (continued)

Filing a GrievanceFiling a Grievance The representative’s job is to process the The representative’s job is to process the

grievance on behalf of the member.grievance on behalf of the member. Develop a grievance form.Develop a grievance form. Complete all information: who, what, Complete all information: who, what,

where, how, and when.where, how, and when. List all Contract Articles, Rules and List all Contract Articles, Rules and

Regulations, Departmental Policies and Regulations, Departmental Policies and Procedures which were violated.Procedures which were violated.

Contract Grievance Contract Grievance Procedure (continued) Procedure (continued)

Filing a GrievanceFiling a Grievance List the date and nature of the violation.List the date and nature of the violation. Provide a brief description of the Provide a brief description of the

violation.violation. Provide a specific remedy requiring Provide a specific remedy requiring

management to correct the violation.management to correct the violation.– (Example) Officer Smith was discharged without cause. (Example) Officer Smith was discharged without cause.

The FOP requests that he/she be reinstated to his/her The FOP requests that he/she be reinstated to his/her previous position and duties forthwith without loss of pay, previous position and duties forthwith without loss of pay, seniority, or benefits and otherwise be made whole as if seniority, or benefits and otherwise be made whole as if the discipline never occurred. Any and all information, the discipline never occurred. Any and all information, material, or documents related to this incident be material, or documents related to this incident be removed and destroyed. removed and destroyed.

GOOD GRIEVANCE FORMGOOD GRIEVANCE FORM

Name of Employee Name of Employee Roger Mayberry Roger Mayberry Classification Classification PatrolmanPatrolmanImmediate Supervisor Immediate Supervisor Sgt. WeismanSgt. WeismanDate Date May 28, 2011 May 28, 2011

STATEMENT OF GRIEVANCE:STATEMENT OF GRIEVANCE:List Applicable Violation: List Applicable Violation: Article 1 and Article 2 – The City Article 1 and Article 2 – The City

terminated Officer Mayberry without just cause. The terminated Officer Mayberry without just cause. The City did not follow the termination article in the CBA.City did not follow the termination article in the CBA.

Adjustment Required: Adjustment Required: To have Officer Mayberry reinstated To have Officer Mayberry reinstated with full back pay and benefits as if he were never with full back pay and benefits as if he were never terminated. To have the City remove any and all terminated. To have the City remove any and all references to this matter from his file. To mandate that references to this matter from his file. To mandate that the City follow the termination article of the CBA in all the City follow the termination article of the CBA in all future casesfuture cases, TO OTHERWISE MAKE OFFICER , TO OTHERWISE MAKE OFFICER MAYBERRY WHOLE, and such other and further MAYBERRY WHOLE, and such other and further relief necessaryrelief necessary..

Date: Date: 5-28-115-28-11 Signature of Employee _____________ Signature of Employee _____________

The Collective The Collective Bargaining RelationshipBargaining Relationship

Collective bargaining is a source of power Collective bargaining is a source of power that gives employees some leverage and that gives employees some leverage and equality in the employer-employee equality in the employer-employee relationshiprelationship

The relationship must be maintained and, The relationship must be maintained and, where possible, improvedwhere possible, improved

Credibility is crucial to the integrity of that Credibility is crucial to the integrity of that relationship relationship

The Collective Bargaining The Collective Bargaining RelationshipRelationship

Grievances can be an effective tool to Grievances can be an effective tool to help improve the relationship between help improve the relationship between management and labormanagement and labor– Identify and set boundariesIdentify and set boundaries– Identify and correct weaknesses in the CBA Identify and correct weaknesses in the CBA

Grievances can destroy the relationshipGrievances can destroy the relationship– Unwarranted bad faith grievancesUnwarranted bad faith grievances– Unreasonable conductUnreasonable conduct

Avoiding GrievancesAvoiding Grievances

The Duty of Fair RepresentationThe Duty of Fair Representation– A union must represent all membersA union must represent all members

without hostility or discriminationwithout hostility or discrimination honestlyhonestly in good faith and not arbitrarilyin good faith and not arbitrarily

– All grievances must be fully investigatedAll grievances must be fully investigated to determine the meritsto determine the merits in accordance with the CBAin accordance with the CBA to determine the likelihood of successful adjustmentto determine the likelihood of successful adjustment

If a grievance has no merit, it should not If a grievance has no merit, it should not be pursuedbe pursued

The CollectiveThe CollectiveBargaining AgreementBargaining Agreement

All roads lead back to the CBAAll roads lead back to the CBA Grievances and how they are Grievances and how they are

processed are governed by the CBA processed are governed by the CBA and can affect the successor CBAand can affect the successor CBA

Grievances can lead to new or Grievances can lead to new or improved contract provisionsimproved contract provisions– Ambiguity in CBA languageAmbiguity in CBA language– Missing/limited provisionsMissing/limited provisions– Cumbersome processesCumbersome processes

Presenting the GrievancePresenting the Grievance

Follow the CBA requirements to the letter!Follow the CBA requirements to the letter! Deadlines and time limits/ASAPDeadlines and time limits/ASAP

– Cannot be filed after deadlineCannot be filed after deadline– Cannot be advanced after time limitCannot be advanced after time limit– Calendar days vs. working daysCalendar days vs. working days

Grievances can be withdrawn in whole Grievances can be withdrawn in whole or in part unilaterally by the unionor in part unilaterally by the union

Cannot be amended w/o mutual consent Cannot be amended w/o mutual consent Be consistent at each stepBe consistent at each step

Settling the GrievanceSettling the Grievance

Can you be flexible?Can you be flexible? Grievances can be settled in whole or Grievances can be settled in whole or

in part at any stepin part at any step Grievant must be consultedGrievant must be consulted Grievant does not have to like itGrievant does not have to like it When you should settleWhen you should settle What does the Duty of Fair What does the Duty of Fair

representation require? representation require?

ArbitrationArbitration

The last step in the processThe last step in the process

All else has failedAll else has failed

When does arbitration begin?When does arbitration begin?

Officers’ RightsOfficers’ Rights

Officers’ Right to AssociateOfficers’ Right to Associate

The U.S. Supreme Court has The U.S. Supreme Court has inferred the “Freedom of inferred the “Freedom of Association” from the freedoms Association” from the freedoms of speech and assembly found in of speech and assembly found in the First Amendment to the U.S. the First Amendment to the U.S. Constitution. Constitution.

Right to Associate Right to Associate (continued)(continued)

The Supreme Court has recognized the The Supreme Court has recognized the right to associate for the purpose of right to associate for the purpose of those activities that are protected by the those activities that are protected by the First Amendment such as speech, the First Amendment such as speech, the exercise of religion, and engaging in exercise of religion, and engaging in politics. politics.


The freedom of association has been applied in The freedom of association has been applied in the following contexts in cases involving law the following contexts in cases involving law enforcement officers:enforcement officers:– Right to privacy in one’s membership in Right to privacy in one’s membership in

organizations;organizations;– Association with criminals regulations;Association with criminals regulations;– Membership in organizations with divergent Membership in organizations with divergent

views;views;– Personal relationships; and,Personal relationships; and,– The right to join a labor organizationThe right to join a labor organization


The right to join a labor The right to join a labor organization:organization:

Bivens v. Six Unknown Federal Narcotics Agents,Bivens v. Six Unknown Federal Narcotics Agents, 441 U.S. 463 (1979).441 U.S. 463 (1979).– However, the right to join does not, in and of itself, However, the right to join does not, in and of itself,

carry with it any right to compel an employer to bargain carry with it any right to compel an employer to bargain collectively.collectively.

– Prohibits an employer from deliberately attempting to Prohibits an employer from deliberately attempting to destroy an association of law enforcement officers for destroy an association of law enforcement officers for the purpose of preventing the exercise of First the purpose of preventing the exercise of First Amendment Rights. Amendment Rights.


Local 491, IBPO v. Gwinnet Co., Ga., Local 491, IBPO v. Gwinnet Co., Ga., 510 510 F. Supp.2d 1271 (N.D. Ga. 2007)F. Supp.2d 1271 (N.D. Ga. 2007)

IA investigation into union member’s IA investigation into union member’s active participation in attempt to active participation in attempt to replace chief for engaging in a replace chief for engaging in a “mutiny” and conduct unbecoming an “mutiny” and conduct unbecoming an officer.officer.

Questioning union officials was Questioning union officials was declared to be an unconstitutional declared to be an unconstitutional infringement on officers’ constitutional infringement on officers’ constitutional right of association.right of association.


Membership in organizationsMembership in organizations The decision protects membership in organizations The decision protects membership in organizations

with divergent views as long as those organizations:with divergent views as long as those organizations:– Are organized;Are organized;– Take positions on public questions;Take positions on public questions;– Engage in activities protected by the First Amendment, such Engage in activities protected by the First Amendment, such

as speech; and,as speech; and,– Are engaged in activity that is lawful and hasAre engaged in activity that is lawful and has

no impact on the officer’s job performance orno impact on the officer’s job performance or

the agency or department.the agency or department.


Personal RelationshipsPersonal Relationships The U.S. Supreme Court views an officer’s right to engage in The U.S. Supreme Court views an officer’s right to engage in

personal relationships in the same manner as the right to personal relationships in the same manner as the right to privacy.privacy.

The Court has noted The Court has noted “choices to enter into and maintain “choices to enter into and maintain certain intimate human relationships must be secured certain intimate human relationships must be secured against undue intrusion by the State because of the role of against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom such relationships in safeguarding the individual freedom that is central to our constitutional scheme.”that is central to our constitutional scheme.”


McCabe v. Sharrett,McCabe v. Sharrett, 12 F.3d 1558 12 F.3d 1558 (11th Cir., 1994).(11th Cir., 1994).

– Police chief’s secretary reassigned to Police chief’s secretary reassigned to general secretarial pool after marrying general secretarial pool after marrying police officer in same department. police officer in same department. Given officer’s position in the rank and Given officer’s position in the rank and file and confidential nature of the chief’s file and confidential nature of the chief’s office, the transfer was deemed not in office, the transfer was deemed not in violation of the 1violation of the 1stst Amendment. Amendment.

Right to PrivacyRight to Privacy

Before a 4Before a 4thth Amendment violation can Amendment violation can be found in public employment there be found in public employment there must be:must be:– An expectation of privacy that Society is An expectation of privacy that Society is

willing to accept as reasonablewilling to accept as reasonable

Right to Privacy Right to Privacy (continued)(continued)

Phillips v. Township of CumberlandPhillips v. Township of Cumberland – No expectation of privacy in police cruiserNo expectation of privacy in police cruiser

Quon v. City of Ontario Police DepartmentQuon v. City of Ontario Police Department– U.S. S.Ct., allowing for the expectation of privacy in U.S. S.Ct., allowing for the expectation of privacy in

agency issued pager/text message content still agency issued pager/text message content still found warrantless search of pager transcript found warrantless search of pager transcript reasonable given employer’s limited search and reasonable given employer’s limited search and legitimate interest in whether employer was being legitimate interest in whether employer was being appropriately billed for pager use under its plan appropriately billed for pager use under its plan w/pager company.w/pager company.

Pennyfeather v. Tessler Pennyfeather v. Tessler – No expectation of privacy as to employer re No expectation of privacy as to employer re

information in personnel file freely given by information in personnel file freely given by employeeemployee

Officers’ Right to Free Officers’ Right to Free SpeechSpeech

Speech is protected due to penalties Speech is protected due to penalties suffered by colonists for criticizing suffered by colonists for criticizing the king;the king;

The law favors the free exchange of The law favors the free exchange of information and ideas;information and ideas;

Discourse and debate are beneficial Discourse and debate are beneficial to democracy;to democracy;

Not all speech is protected;Not all speech is protected; Must be the truth or in good faith.Must be the truth or in good faith.

Free Speech (continued)Free Speech (continued)

Yelling “FIRE!” in a crowded movie Yelling “FIRE!” in a crowded movie theater;theater;

Time, Place, and Manner restrictionsTime, Place, and Manner restrictions– SignageSignage– PermitsPermits– EmploymentEmployment

Pickering v. Bd. of Ed.Pickering v. Bd. of Ed., 391 U.S. 563 (1968), 391 U.S. 563 (1968)

Garcetti v. CeballosGarcetti v. Ceballos, 126 S.Ct. 1951 (2006), 126 S.Ct. 1951 (2006)

Free Speech (continued)Free Speech (continued)

PickeringPickering balancing test balancing test– Weighs the need for the public discourse Weighs the need for the public discourse

of certain information, matters of public of certain information, matters of public concernconcern

– Against the potential harm to agency’s Against the potential harm to agency’s mission.mission.

GarcettiGarcetti – Scope of employmentScope of employment– Statutory obligationsStatutory obligations– Whistle blower rightsWhistle blower rights

Garcetti Garcetti AftermathAftermath

There have been many cases decided in There have been many cases decided in the federal courts applying the federal courts applying GarcettiGarcetti..– The courts have rendered decisions both The courts have rendered decisions both

for and against employees.for and against employees.– Most decisions focus on what the specific Most decisions focus on what the specific

duties of the employee were at the time duties of the employee were at the time of the speech.of the speech.

– There is no bright line rule.There is no bright line rule.

DO NOT BE A TEST CASE!!DO NOT BE A TEST CASE!!

GarcettiGarcetti

(1) whether the employee's speech is (1) whether the employee's speech is fairly characterized as constituting fairly characterized as constituting speech as a citizen on a matter of speech as a citizen on a matter of public concern,public concern,

(2) whether the employee's interest in (2) whether the employee's interest in speaking outweighs the speaking outweighs the government's legitimate interest in government's legitimate interest in efficient public service,efficient public service,

Garcetti Garcetti

(3) whether the speech played a (3) whether the speech played a substantial part in the government's substantial part in the government's challenged employment decision, andchallenged employment decision, and

(4) whether the government has shown (4) whether the government has shown by a preponderance of evidence that it by a preponderance of evidence that it would have made the same would have made the same employment decision in the absence employment decision in the absence of the protected conduct.of the protected conduct.

GarcettiGarcetti

The first two elements of this test are The first two elements of this test are “questions of law designed to “questions of law designed to determine whether the employee's determine whether the employee's speech is protected by the First speech is protected by the First Amendment.”Amendment.”

The final two elements are questions The final two elements are questions of fact “designed to determine of fact “designed to determine whether a retaliatory motive was the whether a retaliatory motive was the legal cause of the challenged legal cause of the challenged employment decision.”employment decision.”

GarcettiGarcetti

The mere fact that the speech occurred at The mere fact that the speech occurred at work and concerns the subject matter of a work and concerns the subject matter of a plaintiff's employment is not dispositive of plaintiff's employment is not dispositive of the conclusion that plaintiff was speaking the conclusion that plaintiff was speaking as an employee. Rather, the controlling as an employee. Rather, the controlling factor in such circumstances is whether factor in such circumstances is whether the expressions were made pursuant to the expressions were made pursuant to the employee's official duties. Restricting the employee's official duties. Restricting speech that speech that “owes its existence”“owes its existence” to the to the employee's professional responsibilities employee's professional responsibilities does not infringe any constitutional does not infringe any constitutional liberties. liberties.

Critical IncidentsCritical Incidents

What is a Critical What is a Critical Incident?Incident?

Generic definition:Generic definition:Any sudden event involving a police officer that Any sudden event involving a police officer that results in an immediate investigation with no results in an immediate investigation with no advanced notice to the subject officer and advanced notice to the subject officer and potentially resulting in the arrest or suspension or potentially resulting in the arrest or suspension or termination of the subject officer and includes:termination of the subject officer and includes:– ShootingsShootings

Steadily increased year over year until 2011-2012 Steadily increased year over year until 2011-2012 Over 30% involved multiple officers and a single offenderOver 30% involved multiple officers and a single offender

– In-custody deathsIn-custody deaths– Use of force/weapon dischargeUse of force/weapon discharge– Car accidentsCar accidents– Any allegation of duty-related criminal conduct.Any allegation of duty-related criminal conduct.

4 Things You NEVER Do 4 Things You NEVER Do

When a LEO is involved in a critical When a LEO is involved in a critical incident the LEO is the “suspect” in a incident the LEO is the “suspect” in a criminal investigation. Therefore:criminal investigation. Therefore:

1. NEVER 1. NEVER Give a Voluntary Give a Voluntary StatementStatement

2. NEVER 2. NEVER Take a PolygraphTake a Polygraph

3.3. NEVER NEVER Give Blood or Urine Give Blood or Urine

4 Things You NEVER Do4 Things You NEVER Do

4. NEVER 4. NEVER talk to :talk to :– Crisis Response Person/TeamCrisis Response Person/Team– Victim AdvocateVictim Advocate– Debriefing TeamDebriefing Team– Peer GroupsPeer Groups

NO confidentially unless covered NO confidentially unless covered by State Statuteby State Statute

Chaplains = NO confidentially Chaplains = NO confidentially

On SceneOn Scene

Officer involved must:Officer involved must:– Secure the scene and as much evidence Secure the scene and as much evidence

as possible;as possible;– Notify dispatch Notify dispatch ANDAND command; command;– Contact EMS;Contact EMS;– Contact the FOP Rep and Attorney; Contact the FOP Rep and Attorney;

and,and,– THEN REMAIN SILENT!!THEN REMAIN SILENT!!– Privileged communicationsPrivileged communications

On SceneOn Scene

The FOP Rep and uninvolved officers must:The FOP Rep and uninvolved officers must:– Ensure subject officer is o.k. (He/She ISN’T);Ensure subject officer is o.k. (He/She ISN’T);– Assist subject officer in contacting Rep/Atty;Assist subject officer in contacting Rep/Atty;– Stand by subject officer until Rep arrives;Stand by subject officer until Rep arrives;– Not talk about the facts;Not talk about the facts;– Provide Rep/Atty w/as much info as possible;Provide Rep/Atty w/as much info as possible;– Remind subject officer to Remind subject officer to REMAIN SILENT!!REMAIN SILENT!!

On SceneOn Scene

Little things mean a lot.Little things mean a lot.

– Put subject officer in an air conditioned/heated Put subject officer in an air conditioned/heated car;car;

– Get plenty of water;Get plenty of water;– Get food;Get food;– Notify family;Notify family;– Have EMS check if necessary;Have EMS check if necessary;– Talk about trivial matters;Talk about trivial matters;– Ask Command to be released from the scene Ask Command to be released from the scene

ASAP. ASAP.

The Chain ReactionThe Chain Reaction

Critical Incidents set off a chain reactionCritical Incidents set off a chain reaction– Criminal investigationCriminal investigation

Your own agencyYour own agency ““Farmed-out” to another agencyFarmed-out” to another agency State attorneyState attorney MediaMedia

– Internal investigationInternal investigation Mandatory cooperationMandatory cooperation Paid leavePaid leave ““Desk duty” Desk duty”

The Chain ReactionThe Chain Reaction

Civil litigationCivil litigation

Possible POST reviewPossible POST review

Coroner’s inquestCoroner’s inquest

Citizen Review BoardCitizen Review Board

The Homicide The Homicide InvestigationInvestigation

The shooting will be investigated as a The shooting will be investigated as a HOMICIDE by:HOMICIDE by:– Detectives from your own agency;Detectives from your own agency;– Detectives from a neighboring agency;Detectives from a neighboring agency;– State or Federal Investigators; or,State or Federal Investigators; or,– All of the above.All of the above.

Only the PROSECUTOR can:Only the PROSECUTOR can:– grant immunity;grant immunity;– make a filing decision; or,make a filing decision; or,– clear the shooting (grand jury).clear the shooting (grand jury).

What To Do As A SuspectWhat To Do As A Suspect

Do what all suspects should do:Do what all suspects should do:– Ask for an attorneyAsk for an attorney– Speak only to your attorneySpeak only to your attorney– Do not answer Do not answer ANYANY questions without questions without

your attorney presentyour attorney present– Do Do EXACTLYEXACTLY what your attorney tells what your attorney tells

you to do.you to do.

What You Can ExpectWhat You Can Expect

You will be “Detained” for many hours, You will be “Detained” for many hours, unless you are injuredunless you are injured

Your weapon(s) will be seizedYour weapon(s) will be seized Your uniform will be seizedYour uniform will be seized You will be “processed”You will be “processed”

– PhotographedPhotographed– SwabbedSwabbed

You will be put on paid administrative You will be put on paid administrative leaveleave

You will see media reportsYou will see media reports

What You Will “Feel”What You Will “Feel”

Taking a life is the worst event in the Taking a life is the worst event in the life of any human being.life of any human being.

There will be an adrenaline rush, followed There will be an adrenaline rush, followed by exhaustion, followed by euphoria, by exhaustion, followed by euphoria, followed by depression, followed by…?followed by depression, followed by…?

Your memory will take days, if not weeks Your memory will take days, if not weeks to fully come to you.to fully come to you.

You will begin second guessing yourself.You will begin second guessing yourself. You will want to talk.You will want to talk. This is no time to play the “tough-guy”.This is no time to play the “tough-guy”. You are alive, that is all that matters!You are alive, that is all that matters!

What the FOP Will DoWhat the FOP Will Do

The FOP will ensure you are legally The FOP will ensure you are legally protected.protected.

The FOP will provide for any resources The FOP will provide for any resources or services you and your family need.or services you and your family need.

The FOP will deal with the bureaucracy.The FOP will deal with the bureaucracy. The FOP will stand with you, not just The FOP will stand with you, not just

behind you or at your side, but in front behind you or at your side, but in front of you as well. of you as well.

GarrityGarrity

GarrityGarrity Rule Rule

Garrity v. New Garrity v. New Jersey, 385 U.S. 493 (1966)Jersey, 385 U.S. 493 (1966) Fifth Amendment Rights in Law Fifth Amendment Rights in Law

Enforcement Disciplinary setting.Enforcement Disciplinary setting. Garrity Garrity rule stands for the premise that rule stands for the premise that

a law enforcement officer has a right to a law enforcement officer has a right to be free from compulsory self-be free from compulsory self-incrimination in the disciplinary process.incrimination in the disciplinary process.

Garrity Garrity (continued)(continued)

Police Officers were questioned about Police Officers were questioned about ticket fixing.ticket fixing.

The LEOs were ordered to respond to the The LEOs were ordered to respond to the investigator’s questions.investigator’s questions.

Their answers were used to convict them.Their answers were used to convict them.

They appealed to the U.S. Supreme They appealed to the U.S. Supreme Court.Court.

Garrity Garrity (continued)(continued)The Court ruled that:The Court ruled that:

– The use of their statements violated the The use of their statements violated the 5th Amendment;5th Amendment;

– The officers were forced to choose The officers were forced to choose between self-incrimination and job between self-incrimination and job forfeiture; and,forfeiture; and,

– That, “LEOs are not relegated to a That, “LEOs are not relegated to a watered-down version of their watered-down version of their constitutional rights.”constitutional rights.”


The The GarrityGarrity rule requires the agency or rule requires the agency or department to:department to:

Order the officer to answer the question Order the officer to answer the question under the threat of disciplinary action;under the threat of disciplinary action;

Ask questions which were specifically, Ask questions which were specifically, directly, and narrowly related to the directly, and narrowly related to the officer’s duties or the officer’s fitness officer’s duties or the officer’s fitness for duty; and,for duty; and,

Advise the officer that the answers to Advise the officer that the answers to the questions will not be used against the questions will not be used against the officer in a criminal proceeding.the officer in a criminal proceeding.


If an officer refuses to answer the employer’s If an officer refuses to answer the employer’s questions, the officer may be disciplined for questions, the officer may be disciplined for insubordination.insubordination.

Essential to the application of the Essential to the application of the GarrityGarrity rule is rule is that the employer actually “orders” the that the employer actually “orders” the employee to respond to questions, and that the employee to respond to questions, and that the employee be compelled by threat of possible employee be compelled by threat of possible discharge for failure to respond to the questions. discharge for failure to respond to the questions.


When and how does When and how does GarrityGarrity attach? attach? Some pre-requisites:Some pre-requisites:

– Garrity Garrity warnings/rights are actually read to warnings/rights are actually read to the subject officer; the subject officer;

or,or,– The officer is threatened with the loss of The officer is threatened with the loss of

employment for failure to speak rendering employment for failure to speak rendering the responsive statement compelled.the responsive statement compelled.

““Implied” Implied” GarrityGarrity

When When GarrityGarrity warnings are not given warnings are not given and no threat of termination is made, and no threat of termination is made, Garrity Garrity can still attach if the officer:can still attach if the officer:– Subjectively believes that failure to Subjectively believes that failure to

follow an order to cooperate in an follow an order to cooperate in an internal investigation will result in internal investigation will result in discipline; and,discipline; and,

– That belief is objectively reasonable That belief is objectively reasonable under the facts and circumstances.under the facts and circumstances.


Scope of Immunity:Scope of Immunity:– A compelled statement under A compelled statement under GarrityGarrity

gains immunity in a subsequent criminal gains immunity in a subsequent criminal proceeding.proceeding.

However, a statement given under However, a statement given under GarrityGarrity can be used for a wide can be used for a wide variety of other purposes: variety of other purposes:

GarrityGarrity Immunity: Immunity:

Use and derivative use immunity is Use and derivative use immunity is required under the Federal Constitution.required under the Federal Constitution.

Most courts now agree that Most courts now agree that Garrity Garrity immunity is self activating and automatic immunity is self activating and automatic once an employee is compelled to give a once an employee is compelled to give a statement.statement.

Garrity (continued)Garrity (continued)

Cropsey, v. School Board Of Manatee Cropsey, v. School Board Of Manatee CountyCounty, 2009 WL 1161345 (2nd DCA, , 2009 WL 1161345 (2nd DCA, 2009)2009)A government employee who has A government employee who has been threatened with an adverse been threatened with an adverse employment action by her employer employment action by her employer for failure to answer questions…for failure to answer questions…immunity arises because the immunity arises because the government cannot use the threat of government cannot use the threat of discharge to obtain incriminatory discharge to obtain incriminatory evidence against the employee. evidence against the employee.


(1) against the officer in a disciplinary (1) against the officer in a disciplinary process;process;

(2) civil lawsuit brought against the officer;(2) civil lawsuit brought against the officer;

(3) criminal prosecutions of the other officers; (3) criminal prosecutions of the other officers;

(4) against other officers; and,(4) against other officers; and,

(5) Perjury.(5) Perjury.

Garrity Garrity and Other and Other ProceedingsProceedings

U.S. v. VangatesU.S. v. Vangates, 287 F.3d 1315 (11, 287 F.3d 1315 (11thth Cir. Cir. 2002)2002)– Corrections officer investigated for battery on Corrections officer investigated for battery on

inmate.inmate.– Cleared in IA but sued in Civil Rights case.Cleared in IA but sued in Civil Rights case.– Ordered to appear and cooperate.Ordered to appear and cooperate.– IA admitted in civil case and she testified.IA admitted in civil case and she testified.– Testimony was used to convict in federal Testimony was used to convict in federal

criminal trial.criminal trial.– Subjective belief that she had to testify was Subjective belief that she had to testify was

not objectively reasonable. not objectively reasonable.

Garrity Garrity and Other and Other EvidenceEvidence

People v. Carey,People v. Carey, --- N.E.2d ----, 2008 WL --- N.E.2d ----, 2008 WL 4891383 (Ill.App. 1 Dist., 2008) 4891383 (Ill.App. 1 Dist., 2008) – LEO charged with DUI and Aggravated AssaultLEO charged with DUI and Aggravated Assault– Submitted to BAC test upon being ordered to do Submitted to BAC test upon being ordered to do

so by IA investigator during administrative so by IA investigator during administrative investigationinvestigation

– May have been threatened w/termination for May have been threatened w/termination for refusalrefusal

– Court ruled Court ruled Garrity Garrity inapplicable as BAC results inapplicable as BAC results are non-testimonialare non-testimonial

– Consent irrelevant to BAC admissibility in IllinoisConsent irrelevant to BAC admissibility in Illinois

Just CauseJust Cause

At Will vs. ContractAt Will vs. Contract– At will employees can be terminated at the will At will employees can be terminated at the will

of the employer forof the employer for Good causeGood cause Bad cause (but not an illegal cause)Bad cause (but not an illegal cause) No cause at all No cause at all

Employees under ContractEmployees under Contract– Can negotiate discipline and due process Can negotiate discipline and due process

provisionsprovisions Just CauseJust Cause Good causeGood cause Reasonable causeReasonable cause Cause Cause

More on Just Cause later….More on Just Cause later….

Just Cause: The 7 TestsJust Cause: The 7 Tests

1. Reasonable rules and orders;1. Reasonable rules and orders;

2. Notice;2. Notice;

3. Investigation;3. Investigation;

4. Fairness of the investigation;4. Fairness of the investigation;

5. Proof;5. Proof;

6. Equal treatment; and,6. Equal treatment; and,

7. Fairness of the penalty.7. Fairness of the penalty.

1. Reasonable Rules & 1. Reasonable Rules & OrdersOrders Is there a specific policy that the officer is accused of Is there a specific policy that the officer is accused of

violating?violating? Can the agency consistently explain its own rules and Can the agency consistently explain its own rules and

policies?policies? Are the policies consistent?Are the policies consistent? Has there been training?Has there been training?

– What type of training?What type of training?– Was conduct consistent with training (Rodney King)?Was conduct consistent with training (Rodney King)?– Was training consistent with policy?Was training consistent with policy?– Was the training done properly?Was the training done properly?– Was the grievant proficient in the trainedWas the grievant proficient in the trained

subject?subject?

2. Notice2. Notice

Have the officers been issued Have the officers been issued policies and procedures?policies and procedures?

Is the specific policy at issue in Is the specific policy at issue in writing?writing?

Is the policy clear and unambiguous?Is the policy clear and unambiguous? Has the policy been recently Has the policy been recently

changed?changed? Do the policies specify penalties for Do the policies specify penalties for

categories of violations? categories of violations?

3. Investigation3. Investigation

Was there an investigation?Was there an investigation?

Were the statements & other Were the statements & other evidence preserved?evidence preserved?

4. Fairness of the 4. Fairness of the InvestigationInvestigation

Did the investigator explore ALL the Did the investigator explore ALL the facts or the just the incriminating facts or the just the incriminating facts?facts?

Were all potential witnesses Were all potential witnesses questioned?questioned?

5. Proof5. Proof

Did the investigation reveal evidence Did the investigation reveal evidence of the alleged violation?of the alleged violation?

Was there evidence of mitigation?Was there evidence of mitigation?

Was there evidence of justification?Was there evidence of justification?

6. Equal Treatment6. Equal Treatment

If guilty, were other officers punished in the If guilty, were other officers punished in the same way as other officers also guilty of the same way as other officers also guilty of the same offense or an offense of the same same offense or an offense of the same degree?degree?

Did the other guilty officers have similar Did the other guilty officers have similar employment histories? Are they truly employment histories? Are they truly similar/equal?similar/equal?

Has there been a disciplinary policy change?Has there been a disciplinary policy change?

7. Fairness of the 7. Fairness of the PenaltyPenalty Does the punishment fit the offense?Does the punishment fit the offense? Has mitigation or justification been taken into Has mitigation or justification been taken into

consideration? consideration? Has employee history been taken into consideration?Has employee history been taken into consideration? Evaluations consistent?Evaluations consistent? Was the agency harmed or disrupted?Was the agency harmed or disrupted? Was the discipline “progressive”?Was the discipline “progressive”?

– Blind progression (any offense will do)Blind progression (any offense will do)– Progression of similar offenses/penaltiesProgression of similar offenses/penalties– Were corrective measures taken?Were corrective measures taken?

Was there some other bias?Was there some other bias?

Contact InformationContact Information

Fraternal Order of PoliceFraternal Order of Police

Labor ServicesLabor Services

222 E. Town St.222 E. Town St.

Columbus OH 43215 Columbus OH 43215

800-451-2711800-451-2711

or by email at: or by email at: [email protected]

THANK YOUTHANK YOU

REPRESENTING FOP MEMBERS NFOP Labor Services Pittsburgh, Pennsylvania August, 2015.

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Transcript of REPRESENTING FOP MEMBERS NFOP Labor Services Pittsburgh, Pennsylvania August, 2015.