The Ohio Patrolmen's Benevolent Association (O.P.B.A)
Thoughts Here And There
Caught in Crossfire
Police officers are trained to protect themselves from all lines of fire. They are taught to stay a step, and a thought, ahead of their aggressor.
Senate Bill 5 is one such aggressive force. That legislation’s quest to weaken public sector unions and workers has unfortunately dragged in the police officer profession. Because Senate Bill 5 includes the police profession, virtually every law enforcement officer in the State of Ohio faces a severe reduction in what had become the “going rate” for what was once considered a worthy profession.
The line that Governor Kasich and Senate Bill 5 supporters will use in the referendum campaign is that public sector workers make more money and have better benefits than their counterparts in the private sector. They will say that this (unproven allegation) is unsustainable given the financial struggles facing the employers of those employees (local governments).
There may be some truth to that line in general, but there is also a significant falsehood. And that falsehood is grouping the profession of “police officer” in the broad category of “public sector worker”.
Unlike a service department worker or a water treatment worker, or a snow plow driver, or an administrative secretary or a finance director or a records clerk, a police officer does not have a counterpart (an employee doing like work) in the private sector. Except for the police officers working for the Cleveland Clinic and perhaps other hospitals, there is no such thing as a police officer working for the private sector.
The falsehood that Kasich and his supporters infer, if not express, is that public sector police officers make more than private sector police officers and it’s all due to collective bargaining so let’s undermine their ability to bargain. No Governor, the market forces that you so trust have properly defined the police officer’s wage and benefit package
The true measuring stick for Ohio’s police officers wages and benefits is determined by comparing them to what police officers in other cities and other states make, not by comparing them to their employer’s other workers or to their city’s school teachers. Comparisons are the proper way that the value for any object is determined, but the comparison must be between like objects.
When you determine what is a fair price for selling or buying a home you look to see what other similar homes are selling for. You do not measure a home’s value by comparing it with the costs of an apartment complex or commercial building just because they are in the same neighborhood. While they all may be structures within a near vicinity, their values are all measured with different measuring sticks.
The market adjustment that Kasich and his supporters want to achieve with Senate Bill 5 has already successfully occurred under the current bargaining law. Trust me, when the OPBA’s employers struggle so do the OPBA’s members.
As such we have made virtually no progress in pushing up law enforcement wages and benefits ever since September, 2008. And until revenues begin to rise again we will continue on the same course, with or without Senate Bill 5.
The 5th Quarter Management Tool
For a few years now I have been referring to what I have deemed the 5th quarter in the law enforcement collective bargaining process. Not coincidentally, the past few years have been marked by the “Great Recession.”
The 5th quarter is the ultimate push back technique utilized by employers when they feel squeezed by what they consider an unfair decision issued by a “neutral” such as a fact-finder, conciliator, or arbitrator. As for example, the employer who finds itself “ordered” by a conciliator to pay a raise that the employer maintains it cannot afford.
What this employer might do is file an action in Common Pleas Court seeking to vacate the conciliator’s “order”. This is one way how the OPBA can be forced into a 5th quarter in a process that everyone believed was a four quarter game.
Creating a 5th quarter can benefit the employer in several ways beyond the obvious attempt to “overturn” the conciliator. Most important it creates another battle with the union as the union is forced to counter-claim, in court, with its own action to “enforce” the conciliator’s “order”.
While the parties engage in what can be lengthy and costly litigation, the employer is not obligated to implement the terms of the conciliator’s “order”. Until the Common Pleas Court rules on the enforcement/vacation countering claims lawsuit, there is no basis for either the union or the employees to compel payment of the ordered wage increases.
As you can imagine, creating a 5th quarter can afford the employer great leverage in regard to the negotiations’ final outcome. During the litigation process, which can be further lengthened by an appeal to the Appeals Court, the parties can continue to bargain and make an agreement that would then “moot” the litigation. Most assuredly any such agreement reached will involve the union “giving up” something that it had obtained in conciliation.
Indeed the employer does not even have to wait until bargaining to invoke or create a 5th quarter. During the term of every labor contract the employer is able to take action either under its lay-off clause or pursuant to a lay-off provision contained in a civil service rule.
So what is there to prevent an employer from claiming that its finances are necessitating a reduction in expenditures to its police department? That kind of declaration then allows the employer to approach the union and demand that it choose between a layoff or a wage and benefit “adjustment” (reduction) in order to maintain the status quo.
Unfortunately there is nothing, short of a weak grievance, that can be used to counter such a move. As a result there are some OPBA units who have been literally forced to give up the present value of portions of their contract while that contract is in full force in order to prevent a layoff. And this is accomplished without Senate Bill 5!
As the Pendulum Swings
Observers of the economy know that markets sway back and forth and up and down, but usually in one direction until there is a bubble and bust causing the direction to reverse, but still in a back and forth and up and down direction. When the overall direction of these markets reverse, one way or the other, some observers call this the swing of the pendulum.
The pendulum effect happens in virtually every market. Markets like the housing market where properties gain value over time or lose value over time. Same thing with the stock and money markets.
All of those markets, along with the “labor market”, swing back and forth over periods of time. This effect is known and proven. What is not known is how long these movements last and when they do actually reverse, at what pace and at what rate.
Right now the pendulum is obviously swinging in a direction that will be harmful to the interests of all law enforcement personnel. This swing follows a fairly long stretch of a direction yielding nice gains in the wage and benefit areas. This swing was created by the Great Recession which deflated property values, deleted jobs and reduced revenue to local governments.
Coinciding with the Great Recession and its monumental effect on governmental revenues is a swing in political attitudes. This recession greatly influenced last fall’s elections to the point where anti-government politicians were elected. Their lopsided victories left many of them with what they think is a “mandate” to reduce government. In trying to accomplish that a new political and economic direction has been created, for sure.
Who knows how far such a negative direction will go or how long will it take to bust and reverse to the other direction. It may last for a little while or it may last for half of your career but trust me the pendulum will one day swing back to a better and more prosperous direction. The sooner, the better!!
Is The “Display” Of a Weapon a Use Of Force?
In the course of their employment, law enforcement officers often find themselves deciding whether to use force and, if so, how much force to use. What is a use of force and what is not?
In its periodic study, Police Use of Force in America, the International Association of Chiefs of Police (IACP) defines the use of force as “[t]he amount of effort required by police to compel compliance by an unwilling subject.” These studies identify five components of force: physical, chemical, electronic, impact, and firearm. The IACP studies specifically do not take into consideration the “display” of a firearm when analyzing law enforcement use of force, however, some individual law enforcement agencies do.
The analysis required to make use of force decisions is critical to all involved and its importance cannot be overemphasized. The “use of force continuum” is a concept that gained prevalence in American law enforcement agencies in the 1980’s. Similar to the rules of engagement in a military context, use of force continua are guidelines that illustrate how much force a law enforcement officer ought to use in response to specific situations. An officer should escalate or de-escalate appropriate levels of force in response to a subject’s actions. Levels of force on some continua begin with mere “presence” of an officer or verbal commands, and continue all the way up to the use of deadly force.
Use of force continua are agency specific. They may be so formal as to be incorporated into an agency’s policy and procedure manual. Some are excruciatingly specific while others are somewhat vague. One of these vague areas is whether “force” in the technical sense, is used when an officer displays his or her duty weapon in response to the actions or inactions of a subject.
Law enforcement employers are split as to whether the “display” of a firearm is an actual use of force. Some hold that drawing one’s service weapon is absolutely a use of force and should be placed at least at the middle of the agency’s continuum. Other agencies view drawing, but not using, a deadly weapon as a routine practice that ought not to be highly discouraged. These latter agencies argue that regularly discouraging officers from displaying their weapons has two negative consequences. First, causing officers to second guess drawing their weapon may put them at greater risk of personal harm. Second, discouraging or disciplining officers for drawing their weapons may have an unintended chilling effect upon the entire agency, thus reducing the agency’s effectiveness.
Aside from the practical analysis in which both employers and employees engage, there is also a legal analysis that should be considered. Any use of force must be justified in order for an employee to avoid adverse consequences. (i.e., disciplinary action, civil action, and even criminal action.) However, the Federal 6th Circuit Court of Appeals has held that merely drawing one’s weapon and displaying it is a show of force or a threat of force, but not actually a “use of force.” The 6th Circuit reasoned that law enforcement professionals are sometimes called upon to use “techniques of intimidation and force.” Such displays are better than actually having to use force. This Federal Circuit Court, which has geographical jurisdiction over Ohio, has made a distinction between the display of a service weapon (threat of force) and the use of force (firing the weapon or otherwise using it on another as a weapon). The 5th Circuit Court of Appeals seems to concur with the analysis of its sister court when it reasoned:
By giving [an officer] the ability to pull out and point a service revolver at someone without risking tort liability, he may be able to abort a potentially violent situation. Conversely, to subject such displays of force to second guessing by a jury may increase the likelihood that the officer will wait until the situation escalates further before drawing his gun, and there end up having to (or believing he has to) shoot to protect himself or others.
Courts analyze an officer’s actions according to the “reasonable officer standard.” In other words, what would an ordinary, reasonable, appropriately trained, law enforcement officer do under the same or a similar circumstance? The real question is whether the officer acted reasonably considering the facts available to him or her at the time that a decision is made.
With all of this in mind, should the “display” of a firearm be a component of a law enforcement agency’s use of force continuum? The cases discussed would seem to indicate that it should not. Rather, the display of a weapon is a threat of force. With this in mind, it is important to understand how your individual department views the display of a service weapon. It is also important to understand that, while a department may view a situation as a use of force, courts and arbitrators may view the facts and the law differently than the employer. Most importantly, if any use of force question arises, always consult with your OPBA representative for further advice and guidance on the matter.
 Collins v. Nagle, 892 F.2d 489 (6th Cir. 1989).
 See Gaddis v. Redford Township, 364 F.3d 764 (6th Cir. 2004).
 Collins supra.
 Hinojosa v. Terrel, 834 F.2d 1223 (5th Cir. 1988).
I’m sure our members are aware that their rights are under furious attack from Republicans in the Senate, House of Representatives and the governor’s office. But if you think these are the only Republicans trying to screw you, you would be wrong.
The State Employment Relations Board (“SERB”) is now in Republican control and its first opinion issued this year is cause for alarm. The case arose as an unfair labor practice (“ULP”) charge being filed against the City of Toledo by the Toledo Police Command Officers’ Association (“TPCOA”). Here are the facts.
The City and TPCOA finalized a contract in August, 2009 that was to run through the end of 2011. Under the health insurance provision, employees were required to contribute toward monthly premiums a fixed amount of $25 for single coverage or $55 for family coverage. Another provision of the contract required the City to pay or “pick up”, each employee’s 10% pension contribution.
In January, 2010, a new mayor took office and immediately sought union concessions to close a projected budget deficit. To make a long story short, TPCOA rejected the mayor’s demand for concessions.
Under previously established precedent, the City’s options were limited. If a union will not voluntarily agree to concessions during the middle of a contract, the employer has the option to lay people off in order to balance the budget. This legal principle was followed in both the public and private sectors. Up until now, that is.
The City of Toledo, however, refused to take “no” for an answer. City Council simply passed an ordinance imposing the concessions it wanted from TPCOA. In response, TPCOA filed a ULP.
Given SERB’s prior rulings in cases where an employer tried to rewrite a contract without the union’s consent, one would have thought TPCOA’s ULP case was a slam dunk.
In a 13-page opinion that completely mangles SERB’s own previous precedents, SERB ruled that “the City did not commit an unfair labor practice…when it modified its existing collective bargaining agreement with the TPCOA without negotiation by and agreement of the union.” The opinion was authored by Kasich-appointee Craig Zimpher and seconded by former Republican state rep Robert Spada. Eugene Brundige wrote a lengthy dissenting opinion.
If S.B. 5 becomes law, your city council or county commissioners will have the final say on what goes in your bargaining agreement. And now, thanks to SERB, your city council or county commissioners will be able to re-write the agreement during its term.
If you are not yet convinced that republicans are your enemies, what is it going to take? Whether elected or appointed to office their agenda is to screw you! Here is a sampling of what some of our so-called friends said in order to obtain a political endorsement:
Republican Sen. Bacon – “when it comes to collective bargaining for law enforcement, I’m supportive – especially since law enforcement cannot strike”.
Republican Sen. Stewart – “I support collective bargaining in Ohio the way it is now.”
Republican Sen. Schaffer – “I made a commitment years ago that if this section of the Code was going to be altered, I would oppose leaving our safety forces defenseless in negotiations.”
Republican Sen. Widener – “Collective bargaining is a principle I have supported in the last 7 years as a state representative.”
Republican Sen. Hite – “Collective bargaining has come under attack by some of my colleagues. [W]hen it comes to those who protect and defend us…I defend the collective bargaining process.”
Republican Sen. Wagoner – “I think getting rid of binding arbitration altogether presents an unworkable situation for a lot of our policemen.”
Republican Sen. Beagle – “I respect the right to bargain collectively.”
Besides being republican and telling us how much they support law enforcement and collective bargaining, what else do these gentlemen have in common? You guessed it – they all voted FOR S.B. 5! Even the republican senator who introduced the bill, Shannon Jones, received an endorsement from the FOP along with these other hypocrites.
As you recall, the statehouse took on a circus atmosphere as S.B. 5 was ramrodded through the legislature. One politician after another lined up to say something stupid into a microphone but my favorite was Republican Rep. Lou Blessing. When asked if he would support a pay reduction for legislators as a way of sharing in the sacrifice he answered: “I earn my pay, and I’m not ashamed of what I make.”
The base pay for a state representative is just over $60,000 per year but with his committee assignments a heavy hitter like Blessing probably makes closer to $90,000 per year. But here’s the real kicker – it’s only a part-time job! That’s right – these jokers NEVER work more than three days a week. Go to their web site and look at their calendar – for ALL of May, June and July they are only in session 27 days and only two days in all of July. Nice work if you can get it. Meanwhile, the average cop in Ohio has a salary in the mid-$50s.
It’s time to tell our “friends” WE WILL REMEMBER IN NOVEMBER!
The battle to ensure meaningful collective bargaining rights for Ohio’s safety forces has moved from the Ohio General Assembly to the streets.
We Are Ohio, the umbrella organization that represents a number of unions, is circulating petitions to hold a referendum on Senate Bill 5 for the November 8 general election. They must submit 231,149 signatures collected from 44 counties by June 30 to Secretary of State Jon Husted.
The Ohio Patrolmen’s Benevolent Association is part of a coalition of safety force unions that united to fight SB 5. The other members are the Ohio Fraternal Order of Police, Cleveland Police Patrolmen’s Association, Toledo Police Patrolmen’s Association, the Toledo Police Command Officers Association, the Ohio State Troopers Association, the Northern Ohio Firefighters and the International Association of Fire Fighters.
Collectively, we will be circulating petitions and raising money for the fight to repeal SB 5. The combined union effort is expected to raise $20 million for the campaign. Other unions involved are the Service Employees International Union, the American Federation of State, County and Municipal Employees, the Ohio Education Association, the Ohio Federation of Teachers, and the Ohio AFL-CIO and a number of their affiliates.
We know that Governor Kasich and the wealthy conservative Republican business interests that support him and the Republican-controlled Ohio General Assembly will match or outspend the unions on the campaign. We anticipate money from anti-union, out-of-state business groups will contribute to the pro SB 5 campaign because Ohio has become Ground Zero in the battle over public employee collective bargaining.
Kasich signed SB 5 March 31, a few hours after the Ohio House passed it 53-44 and the Senate concurred with House changes by a 17-16 vote. The bill will become within 90 days but once referendum petitions are filed, the implementation of the law will be on hold until the voters decide.
The governor and Republican legislative leaders are discussing ways to prevent the people from having a vote on SB 5 by including many of the changes in the budget, which must be approved by July 1. That could set up an interesting legal situation if SB 5 is repealed by the voters.
SB was sponsored by Senator Shannon Jones, a conservative Republican from Springboro in Warren County. The speculation has been she is using it as a platform to get the Senate Republican caucus to select her to replace Senate president Tom Niehaus, who is term limited.
SB 5 was unnecessary. Ohio’s public employee collective bargaining law, which became law in 1984, has worked well. Public employee strikes have been reduced drastically. Binding arbitration, which is what the safety forces used because they could not strike, was a wash. The unions won some and the employers some. But neither side broke the bank, as Kasich claimed had occurred.
Binding arbitration was replaced by a system the local city council would pick one of the two offers if an impasse developed. Guess who would win there? The city, of course. And the voters would have the right to vote on the settlement if it exceeded certain guidelines.
Binding arbitration had been sued to settle grievances but no more. And health care could not be included in collective bargaining and cities would n o longer be able to pick up employee pension contributions. Employees would have to pay 15% of their health care costs. So while SB did not affect salaries per se, changes in health care and pensions will be reducing some officers’ pay.
SB 5 also eliminated the fair share provision, where employees who do not ant to belong to a union would have to pay dues. This is a blatant attempt to bankrupt unions.
Some GOP leaders considered exempting the safety forces from SB 5, which is what happened in Wisconsin. But Niehaus and Kasich, who referred to an officer who gave him a ticket as an idiot, would not allow it.
Kasich pushed SB 5 for three reasons: 1) to break the unions 2) to enhance his image in n national GOP politic for 2012 and 3) to claim he gave local governments a way to save money while at the same time he drastically cut state funding for local government.
The Republican leadership, particularly Speaker William Batchelder, traditionally have been close to law enforcement. But their support of SB 5 has made many conservative police officers who supported Kasich and Republican legislative candidates into Democrats.
In Greater Cleveland, that would include Representatives Mike Dovilla of Berea, Marlene Anielski of Walton Hills , Ron Young of Leroy in Lake County and Senator Frank LaRose of Fairlawn in Summit County.
Dovilla and LaRose were particularly disappointing. LaRose had told the OPBA he would oppose the bill but buckled under pressure from Kasich and Niehaus. Dovilla had indicated on the OPBA questionnaire he favored the collective bargaining law but, when it came time to vote, he supported SB 5.
Shame on Dovilla, LaRose, Anielski, Young and the other GOP legislators who voted for SB 5.
We will never forget the seven Republican senators who stood with us against SB 5: Tim Grendell of Chesterland in Geauga County; Tom Patton of Strongsville; Bill Seitz of Cincinnati, Scott Oelslager of North Canton, Jim Hughes of Columbus, and Gayle Manning of North Ridgeville in Lorain County.
They can count on our support. But the Republicans who supported SB 5 can forget about it.
Most Republican state office holders remained silent on SB 5- Attorney General Mike DeWine, Auditor David Yost, Treasurer Josh Mandel and Secretary of State Jon Husted.
We lost the battle in the General Assembly but we will win the battle at the polls.
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