The Mental Health Fraud

Currently, the call across the country is to provide training to Police Officers so that they can recognize Mental Health issues and deal with them during crisis situations.  This is just the latest offloading of society’s problems on to the backs of Law Enforcement.  Like Body Cams, Mental Health training is an easy sounding, quick fix.

There is a Mental Health crisis in this country.  Some of the symptoms are easy to spot.   The huge increase in the homeless population in our cities is one.  Other symptoms are more hidden in the suburbs and rural

areas. The roots of what we face now go back to a movement in Mental Health treatment that sounded good, promised much, and turned out to be a cynical fraud. The Deinstitutualization Movement came out of investigative reporting into deplorable conditions at some of the large Mental Health hospitals.  Geraldo Rivera’s expose of the conditions at Willowbrook Hospital on Long Island gained National attention.

Traditionally, Mental Health patients were treated as patients in large hospitals. Some patients spent most of their lives behind locked doors. These patients had been committed to the custody of these institutions either voluntarily or involuntarily.  Fairfield Hills Hospital, a sprawling multi-building facility in Newtown Connecticut, is an example.  The 1975 film “One Flew Over The Coo Coo’s Nest” used the wards and hallways of Fairfield Hills for its interior scenes.

Beginning in the Kennedy administration, there was concern over what appeared to be unjust confinement of Mentally Ill Patients.  The Mental Health Community’s response was to advocate for Community-Based Health Care rather than the reliance on the large residential hospitals.  “Treatment in the least restrictive setting” became the slogan of the movement.  The goal was to move patients to their communities rather than have them locked up.  Community- Based Health Care, housing and other Social Services would be available to help the patients in their transition into the community at large and treatment would be on going.

Only the first half of the equation was accomplished.  The big hospitals were closed, eliminating thousands of treatment spots.  The Community-Based support was so underfunded that it was washed away in the flood as newly released patients descended on the cities.  Most of the patients did not return to the communities they came from.   Most of them wound up in the cities.

Patients who should have remained in restrictive settings for their own safety and that of others joined the flood of those released into the community.  Beds for those that needed to be placed in long term settings disappeared.

In light of the Police Executive Research Forum’s 30 Guiding Principles, it has become clear that society now wishes to offload the responsibility for Mental Health Crisis Care onto local Police Departments.  This now goes hand in hand with the expectation that local Police Forces are expected to be the first line of detection and defense against Terrorists and the front line on the War against Drugs.

PERF’s 30 Principles amount to a disarmament of Law Enforcement Officers who are expected to face danger on a daily basis.   PERF’s principles regarding Mental Illness represent a fantasy world in which Mental Health Treatment and Professionals are readily available at a moment’s notice.

PERF’s recommendations on handling Mental Health issues in Critical Incidents may have the public believing that the Mental Health Crisis can be fixed with no cost to society. This not true, real world experience shows the fallacy of that idea every day.

Preserving Qualified Immunity

There is a movement afoot in this country to erode yet another right of police officers in our legal system.

In Salizar v. Texas the police officer was granted Qualified Immunity in an officer involved shooting.  The trial court granted Summary Judgement based upon Salizar’s admission that he resisted the officer and then walked away. The officer perceived a threat when Salizar reached under his shirt towards his belt. The plaintiff’s attorney and some in the activist community are saying that the case should have gone to a jury.  The reason, better community relations.  To follow that argument any case that involves an officer involved critical incident should be tried by a jury in order to make the community feel better.  This argument would go against years of settled law and would deprive an officer who is a defendant in a civil law suit of a defense simply because he is a police officer.

This claim is being raised in connection with a civil law suit in Texas.  Salizar v Houston.  Salizar admitted to drinking several beers prior to being pulled over by the defendant officer.  The officer observed Salizar driving in an erratic manner.  Salizar pulled over to the right hand side of the road on a bridge next to a low wall.  The officer noticed the odor of alcohol when he approached the driver’s side window. Salizar produced a Mexican driver’s license when pulled over.  After running the license and learning that there were none, the officer asked Salizar to leave the truck and to walk back to the front of the unit.

To overcome a qualified immunity defense a plaintiff must allege a violation of a Constitutional right and then show that the right was clearly established in the context of the case.  This is a demanding standard and it should be.  There is clear public policy interest in allowing Law Enforcement Officers to perform their duties without having to run through a legal analysis.

Well established law should not be disregarded as a way to create better community relations for law enforcement.  It is doubtful that such a change would even have that effect.  The courts are established to find the truth and to allow individuals to assert and protect their rights.  They are not in the business of public relations.

The Court further found that excessive force was not present in this incident.

Salazar admitted at trial that he had resisted the officer’s attempts to handcuff him and that he walked away from the officer.

Excessive Force exists where there was an injury which resulted directly and only from a use of force that was clearly excessive and the excessiveness was clearly unreasonable.

“The courts have never required officers to wait until a defendant turns towards them with a weapon in hand before applying deadly force to ensure their safety.” (citation omitted)       (Salazar note 4 at page 8.)

“The use of deadly force is not unreasonable when an officer would have reason to believe the suspect poses a threat of serious harm to the officer or others.” Carnaby v. City of Houston 636 F.3d 183, 188 (5th Cir. 2011)

The scene of an arrest is not the place to argue one’s Constitutional rights.  The Courts are the place for that.  We see increasing instances of belligerent behavior by crowds at the scene of an arrest.

 

Personal Use of Cell Phones Edited for Legal

“Personal” May Not Mean “Private” Considerations for Personal Cell Phone Use On-Duty

 

Be careful in your use of your personal cell phone while on duty.

In the leading case on this issue, the New Mexico State Court of Appeals required the production of an on-duty Police Officer’s personal cell phone records to the defense in a criminal trial. State v. Ortiz, 215 P.3d 811 (N.M. Ct. App 2009). However, while the Court ordered the Officer’s personal cell phone records be produced, it required the defense to make a showing of need for the documents and only granted the production because several restrictions and privacy protections were in place.  The court held that the defendant’s due process rights could not be compromised by the officer’s right to privacy.

In 2005, a Santa Fe New Mexico Police Officer, John Boerth, arrested the Defendant (Ortiz) for Driving While Intoxicated (DWI).  During the pretrial proceedings, defense counsel expressed a potential defense to the DWI; that Officer Boerth’s traffic stop was pretextual and that all evidence thereafter should be suppressed. Defense counsel argued that there was a “missing six (6) minutes” of video from Officer Boerth’s dashboard camera immediately before he pulled over Ortiz and requested additional records to fill that “gap”. The State Attorney’s Office argued that the dash camera does not regularly record until the police cruiser’s emergency equipment is activated and that there was no “gap” because Boerth’s reason for the stop was based on the Defendant’s erratic driving.

Defense counsel argued that Officer Boerth’s cell phone records (along with other documentation including dispatch records) should be provided because Officer Boerth’s initial explanation for the stop was not supported by the evidence and the missing time could prove or disprove whether Officer Boerth had a valid basis for his traffic stop.

The Court required defense counsel to prove three primary elements for production of sensitive material in order to be entitled to the requested documents.  First, the defense had to show that the records were in the control of the State.  Control was shown because the Court determined that Officer Boerth was an “arm of the State” and a member of the “prosecution-team” subjecting his records to their custody. Second, the defense had to show that the requested documents were “material to their defense”. Lastly, the defense had to show that they would be damaged if they were denied access to the documents. The last two elements were shown because the defense was able to show that there was a “strong indication that [the requested evidence] will play an important role in uncovering admissible evidence…”

Additionally, the Court ordered production of the records because the following privacy protections and appeal mechanisms were available.

  1. The records requested by the defense were for a specific, finite period of time and did not encompass the totality of the records.
  2. The records themselves would be appropriate to produce only if there was no recording of the potential phone call itself.
  3. The State could have limited or even prevented the records from being disclosed by filing a motion for a protective order if a defense (such as protection of a confidential informant) existed.
  4. If there were potential personal matters of the Officer, irrelevant to the case itself, the State could file for a private review of the records with the judge and defense counsel, away from public forum of the courtroom, before the records would be made part of the official court record.

In fact, the examination of Officer Ortiz’s cell phone took place in the judge’s chambers in order to guard against public disclosure of any information that was not relevant to the case at hand.

Even though the Ortiz Court ordered the production of the Officer’s personal cell phone records, the Court’s decision may give Officers ammunition for exclusion of these types of records and protection of their personal information in their own jurisdictions.

When it comes to use of your personal cell phone, “personal” may not mean “private.” Be cautious with your communications while on-duty. This applies to texts and emails as well.  In today’s climate, innocent messages can be spun to work against you. Your best option may be to keep your private cell phone communications to a minimum while on duty.

Dogs and OT Legal Update

K-9 Officers, are you getting paid what you should?   In certain respects we all bring our jobs home with us in one way or another.  When it comes to K-9 Officers however, the job really comes home with them.  In the vast majority of departments, the dog stays with the officer all the time, on duty and off.  This allows for a tight bond between the handler and the dog. It also relieves the department of the burden of housing the dog, feeding it and walking it as well.

Unlike a take home police car, a dog needs attending to after you get home.  Certain breeds need walking and feeding at very specific times in order to avoid injury.  That means the handler’s time is not his own even while off duty.   The officer must be paid for this additional work time.

The courts and the department of labor have addressed this.  The K-9 Officer should be paid overtime for this extra work.  The standard is that payment should be at time and a half of the officer’s hourly wage.   Many departments have a set stipend amount for K-9 officers.  This is meant to be compensation for the extra work.  Often these stipends do not meet the test however.   The stipend, when divided by hours actually spent in care of the dog must not be below minimum wage.

“According to the Department of Labor, bathing, brushing, exercising, feeding, grooming, cleaning of the dog’s kennel or transport vehicle, administering medicine for illness, transporting the dog to and from an animal hospital or veterinarian, and training the dog at home are all compensable activities.”  PoliceOne.com K-9 Care and Handler Compensation. http://www.policeone.com/police-products/k9/articles/1747767-K-9-care-and-handler-compensation

So how much K-9 time is compensable?  Each officer’s experience is different but the leading cases give us some guidance.  Levering v. District of Columbia sets the standard at 30 minutes per day, seven days a week.  This would work out to 3.5 extra hours of compensable time per week.  If the officer is working a full schedule, most or all of that would be overtime.

3.5 hours a week might seem a bit light however given what K-9 handlers actually have to do.  Some breeds require feeding at specific times prior to and after their shifts.  What about the officer’s days off? The dog still has to get walked, fed, and brought to the vet.  A more reasonable standard is that which has been suggested in several out of court settlements is one hour per day for work days and one and a half hours for off days.

The fact is that the department is saving a tremendous amount of money with take home dogs.  The department does not have to provide the kennel facilities and pay extra personnel to attend to the dogs.

So check your contract, check your paycheck. Make sure you are getting paid for all the work you do.  Call us if you need help.

If you need further information, please contact the General Counsel’s Office and we will help you out.

 

 

Baltimore Grand Jury Experiences Lethal Force Simulator

A Baltimore grand jury had to walk a mile in Law Enforcement’s shoes … simulated shoes that is. Jurors were handed fake firearms and placed in “realistic simulators” in which they experienced scenarios Police Officers confront on a regular basis, including a scenario in which the suspect attempted “suicide by Cop.” Jurors reported that their perceptions of Law Enforcement were forever changed, “Society has beaten these men and women down … We no longer consider them ‘Officer Friendly,’ and now we can understand why.”

The report continued, “For those of us who participated, we agreed that we were actually nervous about using our firearm. Each time, we contemplated whether we should use our gun or not, but we surely did not want to be harmed ourselves … we realized at that moment that we did not do as well as we would have liked. That experience made us consider that in many cases, Police Officers really do not have much time to think, especially in life-threatening active situations where a hostage may be in danger.”

Jurors went on to say that they believe that Law Enforcement and Corrections should have increased pay and improved working conditions. They stated that elected officials and more of the public should experience the Lethal Force Simulator. Their report called for “aggressive campaigning” to hire more officers and “statewide recognition and sincere appreciation toward our officers who daily risk their lives.”

Donning & Doffing: Compensable or Not Compensable – 2013

Recent Decision on Donning and Doffing of Police Uniforms and Equipment

General Counsel’s Office, I.U.P.A.

A California Court recently issued one of the first decisions involving the “donning and doffing” (i.e. changing) of police uniforms and equipment.  Martin v. City of Richmond, 2007 WL 2317590, (N. D. Cal. Aug 10, 2007) (NO. C 06-06146 CRB).  In a split decision, the Court held that the donning and doffing of uniforms was not compensable, while the donning and doffing of equipment may be compensable if officers were required to do so at the police station.

The officers sued the City of Richmond for compensation for donning and doffing their police uniforms and their duty equipment.  The City argued that since it allowed officers to put on their uniforms and duty equipment at home, the officers were not entitled to compensation for this donning and doffing even if it occurred at work.

The Court distinguished between the officers’ uniforms (such as cloths and footwear), and the officers’ “duty equipment” (such as badges, holsters, firearms, and bullet-proof vests).  The Court found that officers were not entitled to compensation for donning and doffing their police uniforms, whether at work or at home.  The Court explained that “no matter how helpful or socially significant a particular outfit might be to the performance of an employee’s duties, the law rejects the idea that donning and doffing of mere clothes is enough to establish an employee’s right to compensation under the FLSA.”

However, the Court ruled that a trail was necessary to determine whether officers were entitled to compensation for donning and doffing their duty equipment.  The Court held that the FLSA would require compensation, even though the City allowed officers to change duty equipment at home, if as a practical matter the officers were compelled to put on and off the duty equipment at work.  In this case, the officers had provided evidence that they could not practically put on their protective gear at home, and that the vast majority of officers put on their gear at the station, while the City had provided evidence that the officers could and did change gear at home.  Because of this factual dispute, the Court held that a trial was necessary to determine “whether the ‘nature of [a peace officer’s] work’ actually requires them to don and doff their gear at the station.”

While this case provides some guidance to officers, the law in this area is still very unsettled and the outcome of the cases is very dependent on the individual facts.  If union leaders or their counsel have questions regarding whether given time is compensable, they can contact the I.U.P.A. General Counsel’s Office at 800-247-4872.

 

2013 Update

By Ryan Burton, Associate General Counsel

This issue has continued to be heated and heavily contested.  Just four months after the decision in Martin, the same district court in California rejected the reasoning in MartinSee Lemmon v. City of San Leandro, 538 F.Supp.2d 1200 (N. D. Cal. 2007).  The Court in Lemmon summarized its position by stating, “this court holds that the time spent donning and doffing the required uniform and gear is compensable under the FLSA. The integral and indispensable nature of the donning and doffing makes those activities principal to a police officer’s duties.” Id. at 1209.

In 2010, however, the U.S. District Court of Appeals for the 9th Circuit (encompassing California, Arizona, Nevada, Oregon, Washington, Hawaii, Alaska, Guam, and the Mariana Islands) rejected the holding in Lemmon, again holding that “because the officers had the option to don and doff their uniforms and related gear at home and only changed at the police station as a matter of preference, the officers’ on-premises donning and doffing of their uniforms and related gear were not compensable under the FLSA.” Bamonte v. City of Mesa, 598 F.3d 1217 (9th Cir. 2010).

The Bamonte decision has subsequently been followed by district courts in California.  See Mory v. City of Chula Vista, 2010 WL 3748813 (S. D. Cal. 2010); Espinoza v. County of Fresno, 2011 WL 3359632

E. D. Cal. 2011).

Additionally, other jurisdictions have also followed Bamonte, holding that donning and doffing of police uniforms is not compensable under the FLSA, specifically when officers have the option to don and doff away from the employer’s premises. See Musticchi v. City of Little Rock, 734 F.Supp.2d 621, (E. D. Ark. 2010) (included in the U.S. 8th Circuit Court of Appeals: Arkansas, Missouri, Nebraska, Iowa, Minnesota, South Dakota, and North Dakota). See also Edwards v. City of New York, 2011 WL 3837130, (S.D.N.Y. 2011) (included in the U.S. 2nd Circuit Court of Appeals: New York, New Hampshire, and Connecticut).

However, a federal district court in Colorado (included in the U.S. 10th Circuit Court of Appeals: Colorado, New Mexico, Utah, Wyoming, Kansas, and Oklahoma) failed to hold in-line with the Bamonte reasoning that donning and doffing was not compensable.  See Rogers v. City and County of Denver, 2010 WL 1904516 (D. Colo. 2010). The district court refused to dismiss the case in its preliminary stages and indicated that it would hold donning and doffing time as compensable.

This issue continues to be heavily litigated.  While several jurisdictions have held that donning and doffing of police uniforms is not compensable under the FLSA, courts within those jurisdictions have waivered back and forth on this notion.  Additionally, while several jurisdictions have followed the 9th Circuit, many more have yet to weigh in. The wavering of the 9th Circuit and strong opinion in Lemmon may provide ammunition for litigation in undecided jurisdictions.

The I.U.P.A. continues to monitor this issue and will provide further updates as this matter continues to develop.  As always, be sure to keep informed regarding the laws and any new developments in your jurisdiction.

Legal Update – February 2013

International Union of Police Associations

MEMORANDUM

From:   Ryan Burton, Associate General Counsel I.U.P.A.

To:       I.U.P.A. Locals

Re:       Legal Updates

 

The General Counsel’s Office is committed to keeping the members of the I.U.P.A. informed regarding legal issues of concern to Law Enforcement. Over the years, the General Counsel’s Office has amassed considerable research and drafted numerous updates on the most pressing legal issues and landmark cases facing Law Enforcement Officers today.  Many of the I.U.P.A.’s past publications are still very relevant and discuss issues which are extremely important for Law Enforcement Officers around the country. The General Counsel’s Office will be updating past publications in order to keep I.U.P.A. members informed and up to date on the current state of the law regarding these issues.  One such publication is being re-released this month with an update for 2013.

Enclosed you will find a Legal Update from 2006 examining competing theories over the level of GarrityRights afforded to Officers in different jurisdictions.  When this Update was released, a Georgia Appeals Court had recently addressed the degree with which Garrity Rights would be afforded in the State.  This Legal Update examines that Court’s decision, how Garrity Rights should be applied in order to provide the maximum protection for Officers under investigation, and the current state of the law in this jurisdiction. This is still pressing issue, as there is still a divide amongst the States regarding the level of Garrity protection afforded to Law Enforcement Officers.  Be sure to keep up to date with this and other issues in your jurisdiction.  Also, please contact the General Counsel’s Office with questions or if you would like more information on this or other topics.

Favorable Garrity Analysis Adopted by Georgia

By Aaron Nisenson, I.U.P.A. General Counsel

The Court of Appeals for Georgia issued a decision on September 1, 2006, adopting a favorable standard for determining whether Garrity immunity applies to statements given by law enforcement officers.  State v. Aiken, 2006 WL 2535046 (Ga. App.).  Generally, in order for a statement to be excluded from use in a criminal prosecution, the statement must be compelled by a threat of termination or other serious employment action.  A question arises if there is no explicit threat of termination.  Under the favorable “Friedrick analysis,” a statement would be protected if the officer subjectively believed that he would be terminated if he did not give a statement, and this fear was objectively reasonable.

In the Aiken case, the Georgia Court of Appeals came down firmly in favor applying the Friedrick analysis.  In Aiken, a state probation officer sought to exclude a statement that he gave to an internal affairs investigator.  Aiken gave the statement after being required to sign a Notice of Interference with On-Going Internal Investigation, which threatened Aiken with discipline if he communicated with anyone about the interview.  However, Aiken was not given a Garrity warning which explicitly directed him to give a statement or be terminated.  The Court ruled that because the Defendant conceded he had not been explicitly threatened with termination,

The question then is whether the statements were properly excluded applying the two-step analysis stemming from United States v. Friedrick, 842 F.2d 382 (D.C.Cir.1988). As we explained in Stinson,

In Friedrick, the D.C. Circuit held that statements should be excluded under Garrity, if (1) the defendant subjectively believes that he must answer questions or lose his job, and (2) this subjective belief is objectively reasonable.

The Court then ruled that the trial court had properly excluded the Officer’s statement finding that the Officer had subjectively believed he would lose his job if he did not give a statement, and this fear was objectively reasonable and created by the department.  In a finding that may be helpful elsewhere, the Court stated that, “the circumstances surrounding the interview, including requiring Aiken to sign the Notice of Interference with On-Going Investigation immediately prior to the interview, constituted sufficient action by the Department to provide an objectively reasonable basis for Aiken’s belief that his failure to cooperate could result in termination from employment.”

 

2013 Update:

By Ryan Burton, I.U.P.A Associate General Counsel

Following the decision by the Georgia Court of Appeals in 2006, this case was brought to the Georgia Supreme Court the following year.  The Georgia Supreme Court affirmed the Court of Appeals’ ruling, concurring with their conclusion that Aiken was coerced into answering the investigator’s questions.  Further, the Supreme Court held that Georgia need not directly adopt the Friedrick analysis because Garrity itself provides a wide net of protection with its “totality of the circumstances” analysis.  This analysis already allows for the Officer’s subjective belief to be a factor in determining whether or not he was coerced into giving a statement, thereby rendering that statement protected under Garrity.

This ruling places Georgia with the Friedrick line of cases and provides Law Enforcement Officers in Georgia with a clear grant of protections for coerced statements under Garrity.  As always, be sure to keep informed regarding the laws and any new developments in your jurisdiction.

FRS – Update from the GC Office



International Union of Police Associations

MEMORANDUM

From:   Ryan Burton, Associate General Counsel I.U.P.A.

To:       I.U.P.A. Florida Locals

Re:       FRS Employee Contribution Litigation

 

On January 17, 2013, the Florida Supreme Court issued its final ruling in the FRS Employee Contribution case.  Regrettably, the Supreme Court, in a narrow 4 to 3 ruling, reversed the Circuit Court’s decision, holding that the State Legislature’s requirement of a 3% employee pension contribution and reduction in retirement Cost Of Living Adjustments were permissible alterations to the plan.

While the I.U.P.A. does not agree with the ruling of the Supreme Court, we nevertheless respect the legal process. We truly appreciate the strong dissenting opinions of Justice Lewis and Justice Perry and agree with Justice Perry’s view of the case as “an insufferable and unconstitutional ‘bait and switch’ at the expense of the public employees” of the State of Florida.

Several law enforcement agencies in the State have assisted their employees by offering to offset the 3% reduction in salaries. Many more have offered no such assistance, leaving Florida Law Enforcement Officers to make do with less once again.  Now more than ever, the collective bargaining process is vital to Florida Law Enforcement Officers and their families. The I.U.P.A. continues to represent the interests of all of its members, fighting for the benefits of Law Enforcement Officers in Florida and throughout the Country.

For more information on SB 2100, the Circuit Court’s decision, and appeal to the Supreme Court please visit the Legal Corner at www.iupa.org to view past legal updates for this case.

Legal Update – August 2012 Union Business Agent Privilege

Alaska now recognizes a Union-Business agent privilege
By: Ryan Burton, Associate General Counsel
International Union of Police Associations

On July 20, 2012, the Supreme Court of Alaska dealt a strong victory to Labor Organizations and Union members in their state. While State and Federal laws recognize privileges for communications between employees and their attorneys, many States fail to explicitly recognize a Union-relations privilege protecting communications between members and non-attorney Union representatives.  Alaska law, similarly, recognized no privilege between employees and Union representatives.  However, its Supreme Court chose to create a new “implied” privilege in order to protect the rights of its public employees granted by its State Public Employment Relations Act.

The Alaska Supreme Court here created a new evidentiary privilege which now protects certain communications between an employee and their Union representative.  This privilege may be asserted by either the employee or the Union and, further, extends to not only administrative procedures but civil litigation as well.

In this case, a State of Alaska public employee was terminated after a review of his job application revealed an undisclosed criminal conviction.  The employee filed a grievance through his Union and had ongoing communications with a Union business representative as well as an outside counsel whom he hired in anticipation of litigation. Because the Collective Bargaining Agreement between the Union and State detailed that the Employer would only discuss grievances with Union representatives (not outside counsel), the employee’s attorney and Union business agent communicated regularly regarding the case.  After the employee filed suit for wrongful termination, the State employer deposed the Union business agent and demanded information regarding his communications with the employee’s attorney, including copies of written communications.  The employee filed for a protective order which was denied by the lower court.  The court reasoned that because the State of Alaska did not recognize a Union-relations privilege and that any claimed attorney-client privilege was waived when the employee’s attorney provided information on the employee’s case to the Union representative, the communications were not protected.

The Alaska Supreme Court reviewed of the case and reversed the lower court’s denial of the protection order.  In a decisive decision, the Court adopted the position of the employee as well as the reasoning provided by a support brief filed by the AFL-CIO with assistance from the I.U.P.A.  The Court reasoned that while there is no explicit Union-relations privilege in Alaska law, one must be implied in order to ensure that Union representatives will be “free to communicate with their members about problems and complaints without undue influence”. Peterson v. State, — P.3d —-, 2012 WL 2947636 (Alaska 2012)(Citing Seelig v. Shepard, 578 N.Y.S.2d 965, 967 (N.Y. Sup. 1991)). The Court would further reason that “members must be able to have confidence that what they tell their representatives on such subjects cannot be pried out of the representatives by an overzealous governmental agency”.  Id.

This ruling means that, in Alaska, communications made in confidence and in connection with Union services (grievances) which are between an employee (or the employee’s attorney) and Union representatives acting in their official capacity may not be forced to be disclosed during administrative or court proceedings.

In adopting this implied privilege, the Alaska Supreme Court examined relevant privileges adopted in other jurisdictions.  In particular, the Court examined cases addressing this precise issue in the private sector, as well as two cases litigated in New York under public sector law.  The theme of these cases was that to permit employers to probe into communications between members and Union representatives which are related to Union matters and grievances would effectively 1) deter Union members from seeking advice and representation and 2) have a “chilling effect” on Union activity.  Peterson v. State, — P.3d —-, 2012 WL 2947636 (Alaska 2012)(Citing Cook Paint & Varnish Co., 258 NLRB 1230 (1981); City of Newburgh v. Newman, 421 N.Y.S.2d 673 (N.Y. App. Div. 1979); and Seelig v. Shepard, 578 N.Y.S.2d 965 (N.Y. Sup. 1991)). In this case, however, it is unclear as to whether this new privilege applies if a third party (for example a prosecutor in a criminal case or a non-employer third party litigant) requests the communications.  Unions should assume the privilege only applies to requests made by employers or their attorneys until this issue is resolved by the Courts.

While this decision only affects Alaska law, it is an important development because, in issuing its decision, the Alaska Supreme Court chose to exercise its authority granted by its State Evidence Rules to recognize a new privilege.  The Alaska Court noted that many other States grant similar authority to adopt new privileges through their Supreme Courts. Therefore, the Alaska Supreme Court’s decision could be used to extend this privilege in other states. However, until courts in a particular jurisdiction officially recognize this privilege, Union representatives should assume that no privilege exists.  Further, Unions must be particularly cautious in cases involving potential criminal charges.

If you or your members want additional information on this topic please contact the I.U.P.A.’s general counsel’s office.  The general counsel’s office assisted the AFL-CIO in the drafting of their support brief and can provide further direction to I.U.P.A. Locals upon request. As always, be sure to keep informed regarding the laws and any new developments in your jurisdiction.

FRS Litigation Update from the General Counsel’s Office

On March 28, 2012 the Florida Supreme Court certified our case as “a question of great importance” and accepted jurisdiction to hear the appeal. This certification allows our appeal to bypass the intermediate Appellate Court and have our case heard for immediate resolution.

Briefs and replies will be submitted in May and June of this year and oral arguments are currently scheduled for September 5. A final judgment is expected to follow soon thereafter.

The I.U.P.A. remains steadfast that SB 2100’s is unconstitutional and will continue to fight to have Circuit Court’s likewise ruling upheld. The I.U.P.A. continues to represent the interests of all its Members, protecting the benefits of Law Enforcement Officers in Florida and throughout the Country.