The Ohio Patrolmen's Benevolent Association (O.P.B.A)
H.R. 218 (The Law Enforcement Officers Safety Act) and the New York State Firearms Law
The State of New York last week passed sweeping new state level legislation that greatly restricts the ability to own or carry certain firearms in that state . Regrettably, the Governor and the proponents of this legislation, in their haste to push this law though the State Assembly, failed to take into account the legitimate needs of active and retired law enforcement officers to defend themselves and the public. NAPO worked with its New York groups, particularly the NYPD Detectives Endowment Association, while this bill was in the works, in an effort to prevent the new law from harming police officers, but those efforts unfortunately failed. A question then arises, as to whether or not the federal Law Enforcement Officers Safety Act (18 U.S.c. §§ 926B et seq.) (commonly known as "H.R. 218" from its original Bill number) provides protection for active and/or retired officers who are in New York State.
It is important to note that the federal law, H.R. 218, DOES provide SOME protection for officers, both active and retired. This is because the federal law applies "Notwithstanding any other provision of the law of any State or any political subdivision thereof .. ." (18 U.S.C. §926B(a» HOWEVER, that protection is LIMITED by the terms of the federal statute , as far as what is covered. Thus, when an officer (active or retired) carries a firearm pursuant to the terms of H.R. 218, the FIREARM its self is protected, (18 U.S.c. §926B(e)(1» as well as any AMMUNITION not prohibited by FEDERAL law (18 U.S.C. §926B(e)(2» So, for example, hollow points are O.K., even if the locality normally prohibits them. BUT the language of H.R. 218 is silent as to MAGAZINES. And thus provides no protection under federal law for state or local officers or deputies who wish to rely on it to overcome regulations like the new New York law which prohibits magazines of greater than 7 rounds capacity. (See 18 U.S.c. §927, Effect on State Law) Also, it is important to remember that even under H.R. 218, the right to carry a firearm is not universal. H.R. 218 overrides State and Local laws, not federal ones , so it gives no right to carry a firearm on a commercial airliner, for example. Also, H.R. 218 by its own terms "shall not be construed to supersede or limit the laws of any State that- (1) permit private persons or entities to prohibit or restrict the possession of concealed firearms on their property; or (2) prohibit or restrict the possession of firearms on any State or local government property, installation, building, base, or park." (18 U.S.c. §926B(b» So a local government can still I control the right to carry on its own local governmental property (as opposed to public spaces), and a private citizen or shopkeeper can still control who can carry on his or her own private property.
Collective Bargaining Health Care in 2013
Collective bargaining in late 2012, early 2013 continues to be marked by uncertainty. In the fall the largest uncertainty was the presidential race. At stake was the means for addressing the economy as well as the survival of the Affordable Healthcare Act, legislation that Mitt Romney vowed to repeal.
After the election the uncertainty regarding the economy persists but the health reform law’s survival was eliminated. Nevertheless, uncertainty about the implementation of the Act and its real impact on both private and public sector employers is still very present and very significant.
It is apparent to your OPBA negotiators that public sector employers are preparing for the law’s uncertainties by stepping up their efforts to shift health care costs away from them and on to you. One way that many are seeking to accomplish this is to gain some form of “spousal exclusion or restriction”.
Long before the Great Recession of 2008 the US economy was forever transformed by the rise of the household with two working spouses. Unlike the generation of your grandparents and maybe even your parents, households containing two working spouses is now the overwhelming norm.
It is also the norm for employers of all types to provide health care coverage to their employees. Health care is such an important benefit for workers that both federal and state lawmakers have passed laws that regulate both health care providers and employer coverages.
The laws that govern health care and pension plans prohibit employers from discriminating amongst its employees in regard to the provision and uniformity of coverage. This has ensured that both female and male employees must be offered the same types and levels of health insurance coverage.
As such, in most cases both spouses of a household have the ability to secure health care coverage from their employer. If this has not been the case, it will be now as the Affordable Care Act requires all employers (except tiny ones), beginning in 2014, to either provide health care coverage to all of its employees or face a costly surcharge.
With health care to be all but guaranteed to every worker, employers have found a new way in their never ending quest to attack rising health care costs. The new concept at our collective bargaining tables is “Spousal Exclusion” or “Spousal Carve-Out”.
Spousal policies and the proposals we get for it generally take one of three (3) forms:
Fortunately the third option is not common. This saves the working spouse whose employer has a clearly inferior and/or more costly (to employee) plan than the other spouse from having to take that plan in lieu of the spouse’s better plan. This sort of exclusion results in a considerable savings to the spouse’s employer, because there is one less body to cover.
The second option is more common and less harsh than complete exclusion. By requiring a spouse to enroll in his or her own plan, the other spouse’s employer saves money because it is only responsible for “secondary coverage” to the excluded spouse. Per this method the secondary employer derives its savings from the fact that it does not pay anything until the deductibles and out-of-pocket maximums are reached under its own (now secondary) plan.
The most common type of spousal exclusion is the system that at the outset excludes all working spouses who have coverage opportunities from their employer. Then it permits such excluded spouse to “buy” back into his or her spouse’s coverage by paying a monthly surcharge.
The size of the spousal surcharge will normally determine the effectiveness and amount of savings for the primary employer. To influence employee behavior such charges must be significant, but if too significant the employer runs the risk of alienating good employees who will not appreciate such charges and the ultimate erosion of income that such a concept entails.
Do working spouse provisions result in significant savings to employers? You bet they do. The only question is how much.
In a family plan the two bodies that will almost always cost the most are the husband and wife. They are now, or will become, of the age when they will incur the procedures and take the medication that are most costly to insurers.
While everyone thinks that children eat up health care costs, their multiple visits to the doctor’s office for the ear infection and their antibiotics are relatively cheap. Normally they are not hospitalized and they are not forced to take expensive maintenance prescriptions.
Eliminating one-half of the costly spouse factor will necessarily lower both the “claims” experience and “cost per employee” factors of insurance costs. While it may be difficult to identify the exact savings each employer will experience, it is easy to recognize that savings will occur.
The statistics show that spousal restrictions are a rapidly growing component of public sector health plans in Ohio. In every major type of jurisdiction reported by SERB, except counties, the percentage having spousal restrictions has increased significantly. According to SERB’s 2012 Health Care Survey, from 2011 to 2012 the percentage for cities in Ohio, the percentage jumped from 18.7% to 50%.
I believe that more and more of your employers will try to implement spousal exclusion provisions. If they are of the type that allows for a reasonably affordable buy-in they are difficult to argue against, although we still do!
The best response to this issue is to identify and quantity the value of savings afforded the employer and then seek to obtain and add as much of that value back to the revenue side, in the form of wages or lower or less health care costs for everyone else on the plan.
Spousal exclusion is not the only new concept that employers are proposing at current contract negotiations. More than ever we are seeing “wellness plans” that, through employee participation, can result in either higher or lower costs for the employee.
Most wellness plans require commitments, by the employee and sometimes the spouse, to complete certain metrics testing and/or conform to certain behavioral changes. Employees may be required to regularly measure their blood pressure or cholesterol levels. Some plans may require that employees engage in positive lifestyle behaviors like exercising or stopping smoking.
Employees who participate in wellness programs are normally provided some thing of value in exchange for their participation. Usually it is a break in their monthly employee health care contribution. This is called the “carrot” approach.
Some employers, though, insist to employ the opposite approach known as the “stick” method. The stick method raises costs for workers who refuse to participate, who do not take action to improve their measured metrics or who continue to engage in risky health behaviors such as smoking.
There really is not much of fight in regard to wellness plans. They generally fall into that rare event known as a “win-win” situation.
At this stage of history though, it sure seems that there is not much else we can “win” when it comes to health care.
Market Volatility as The New Norm
We are in a period of market volatility, and that is not going to change anytime soon. Be prepared.
Following the stock market's rough run in the aftermath of the debt ceiling drama last summer, we warned our clients to buckle up for another a roller coaster ride. These days, the stock market is much more volatile than it used to be--as measured by one barometer called the Volatility Index (VIX). The VIX tends to rise as stocks fall. Thus it is commonly referred to as the "fear gauge." In the 1990s, the VIX normally registered around 9 or 10. The VIX spiked in June to 25, settled back in the Fall around 15, and has since registered again in the mid-teens.
Many felt that after the 2012 Presidential election the market would be less volatile--but don’t hold your breath! The election erased some uncertainty, and that is good news; but the crystal ball will remain very cloudy for the foreseeable future because the economy is facing bigger headwinds--Europe's unresolved debt crisis, the slowdown in China, and the stalling U.S. economic recovery. The market will continue to worry about the aftermath of the “fiscal cliff” and the lack of consensus coming out of Washington necessary to resolve the country’s debt problems. Although we didn’t fall over the proverbial “cliff” at the end of 2012, there is still plenty of uncertainty in the marketplace, and we will continue to see volatility. Now we have the debt ceiling debate looming, and it sounds like this will be an ongoing problem; and lawmakers may continue to simply kick the can down the road.
What can you do?
The recent and ongoing turbulence in the market has investors questioning how they should strategize for the long term. Rather than reacting emotionally and panicking by running for the door, a better approach might be to think through what one's risk appetite might be and adjust your asset allocation gradually--probably to something more conservative, but not giving up any chance for some upside potential.
Now is a great time to revisit the “Rule of 100” and make sure you are not assuming too much risk with your retirement assets. We have long preached that our clients follow this rule. Take 100 and subtract your age, and the resulting number is the maximum percentage of your assets that should be at risk. When using this strategy it is important to incorporate all of your investment assets into the equation, not just your deferred compensation account.
In volatile times like these, a simple “buy-and-hold strategy” might not be the best course of action. What is necessary is to adjust asset allocation to adapt to changing market conditions—to have a dynamic instead of static asset allocation. Put another way, reduce your exposure to the stock market and get more defensive in recessions; increase your equity exposure in expanding economies; and do so in a disciplined approach to remove emotions from allocation changes. This type of approach is typically implemented with professional advice. Using a disciplined approach like this requires ongoing adjustments to the asset allocation and then a decision on which equity sectors will perform best moving forward. Timing doesn’t have to be exact; you are just trying to capture the general trend, and doing so can improve your returns. Lineweaver Financial Group has been helping many Police Officers and other city employees with their deferred compensation accounts by utilizing these exact strategies over the past few years. If you would like more information on how professional management of your deferred compensation account during these volatile times could help you, feel free to give us a call.
Lineweaver Financial Group w 9035 Sweet Valley Drive w Valley View, OH 44125 w 216.520.1711 w www.OhioRetire.com
Securities offered through Sigma Financial Corporation. Member FINRA/SIPC
Mayfield Hts Police Win New Motorcycle!
The Mayfield Heights Police Department wins a brand new 2013 police motorcycle. The motorcycle was won thru a raffle by The America's 9/11 Foundation. The Foundation sponsors a 3-day motorcycle ride each August to commemorate the attacks from September 11, 2001. To entice police departments to participate as an escorting officer, the foundation raffles off a police edition Electra Glide. "I've been attending this ride for 7 years", said Motor Officer Thomas Rovniak. "Each year I hoped that I would win this bike for my department, but I've always come home empty handed, until this year!" he said. The motorcycle, which is valued at $25,000 was delivered to Mayfield Heights last month.
This year's 9/11 Ride will begin on Thursday, August 15th, as the Cleveland Area Officers depart from Macedonia, Ohio. The ride is the major fundraiser for the Foundation, who gives 15 college scholarships each year to children of first responders. Any department who participates in this years ride will be entered into the raffle to win a 2014 Harley Davidson Electra Glide Police Motorcycle. The foundation limits the ride to 1,000 civilian motorcycles and 250 escorting officers each year. "Those are great odds", Rovniak said. "We sent two officers. That gave us better odds of winning!"
Some area departments who have participated as escorts have been: Mayfield Heights, Cleveland, Rocky River, Willoughby, Valley View, Mentor-On-The-Lake, Berea, Twinsburg and Eastlake Police Departments.
Although the private sector economy is showing signs of life, a recent story in the New York times shows that public sector employment continues to decline. Ohio actually has one of the lowest unemployment rates in the country but it is the private sector that is adding jobs.
Public employers state-wide continue to lay off employees, leave job vacancies unfilled, and demand concessions at the bargaining table. There are two related forces causing this.
First, the Wall Street crash from five years ago caused massive job losses in the private sector. Unemployed people do not pay municipal income tax and so city budgets get squeezed. Similarly, the unemployed have less money to spend so sales tax receipts take a hit that impacts counties. Adding further fuel to the fire is the fact foreclosed homeowners don’t pay property taxes. These are all factors largely beyond the control of state and local governments.
The second factor holding down employment and wage growth, however, is entirely the doing of Governor Kasich and his Republican lackeys in Columbus. When he took office he vowed to break the backs of the public sector unions. Senate Bill 5 was one such attempt but it failed. The real damage, however, has been reduced state revenue going to the local governments.
In one moderate-size city I’m familiar with they received over $650,000 is state revenue sharing in 2011. In 2013 they will receive only $100,000. That equates to about six or more full-time jobs.
The slash to local government funding was a “two-fer” for Kasich. It allowed the state to balance its budget by dumping the hard decisions on the cities and counties. And it also put a choke hold on the public sector unions as membership falls. Ultimately, the greatest pain is felt by the little guys who lose their jobs. But it is also being felt by those still working because it is near impossible to bargain for higher wages when the increases could only be funded by further layoffs. The chart below taken from SERB’s website dramatically illustrates the impact.
State Employment Relations Board
Annual Wage Settlement Report
Wage Settlement Breakdown (2002-2011)
The data is not yet compiled for 2012 but if the average settlement is higher than it was in 2011 I will be surprised.
Let us hope that we have hit bottom and that in 2013 we’ll start climbing out of this prolonged recession. But even once local revenues start to increase, I foresee more years of downward pressure on wages and benefits. Most employers will want to use new revenues to make overdue capital purchases and neglected infrastructure improvements. Others will want to hire more employees rather than give wage increase to current staff.
The Last Chance Agreement and The Union's Rights
As a union attorney, I am often hopeful that grievances can be settled in the early stages of the grievance procedure, before I even have to get involved. This allows local directors and employers to craft settlements unique to their departmental needs and promotes good labor relations. Unfortunately, sometimes employers interpret this approach as negating the need to involve the Union in settling grievances. Also unfortunate, at times the employer purposely tries to keep the Union from being in the room during the grievance proceedings. Regardless of which situation may apply, most directors and longtime union members can recall a situation where either they or someone they knew were pressured into agreeing to a grievance settlement without a union representative being present. Often times, directors may only learn of these agreements after the fact, leading directors to ask two questions: (1) Did the employer have to notify the Union of the proposed agreement before the employee signed it? and (2) Can the Union do anything about it?
Recently, the OPBA asked the State Employee Relations Board (SERB) to answer these two basic questions in an unfair labor practice charge brought against the Williams County Sheriff’s Office. The charge involved conduct by the Sheriff against a Deputy during the signing of a “Last Chance Agreement” (LCA).
The basic facts supporting the charge were undisputed. After investigating allegations of the Deputy’s misconduct, the Sheriff called the Deputy and the local OPBA Director in for a meeting to discuss the Deputy’s discipline. During the course of the meeting, the Sheriff presented the Deputy with a LCA. Under the terms of the agreement, the Sheriff agreed to not terminate the Deputy for her alleged misconduct. In return, the agreement stated that the Deputy would waive the right to grieve any future discipline or termination arising out of similar misconduct.
After looking over the document, the OPBA director asked to have time to talk to an OPBA attorney, and to fax the document to the attorney for review. The Sheriff denied this request, stating that this was a “take it or leave it” deal and any attempt to have the LCA reviewed by the OPBA attorney would result in the agreement being taken off the table. Facing this ultimatum, the director left the room to contact the OPBA attorney for further guidance.
While the director was out of the room, the Deputy continued questioning the Sheriff about the terms of the LCA. Faced with the threat of immediate termination if she did not sign the agreement, the Deputy decided to sign the LCA before the director returned to the room. Upon learning of this, the OPBA filed an unfair labor practice over the Sheriff denying the Deputy and director time to talk to the OPBA and denying their request to fax the agreement to an OPBA attorney for review.
After reviewing the facts of the case, SERB concluded that the Sheriff had committed an Unfair Labor Practice. SERB reasoned that a LCA is a contract whereby the employee agrees to give up his or her rights under the CBA to grieve any future discipline in return for the employer’s promise to not terminate the employee for the current misconduct. SERB further concluded that the OPBA was the exclusive bargaining representative for all bargaining unit employees and had the sole authority to negotiate contracts on the employees’ behalf. When the Sheriff refused the request to have the OPBA’s attorney review the agreement and represented that the deal was “take it or leave it,” the Sheriff refused to honor the OPBA’s status as the exclusive bargaining representative. Moreover, the Sheriff’s representation that the deal was “take it or leave it” was a refusal by the Sheriff to bargain over an agreement that affected the terms and conditions of employment of an OPBA member.
Although SERB has long recognized an employee’s right to union representation during investigatory meetings, with the decision in Williams County Sheriff’s Office SERB has affirmed that this right also applies to the Union’s right to review and negotiate the terms of a Memorandum of Understanding or Last Chance Agreement. Directors may also use the reasoning that SERB applied in this case to assert the OPBA’s right to review and negotiate over the terms of any grievance settlement.
The bottom line is this. Although employees are allowed to settle their own grievances so long as the settlement is consistent with the terms of the CBA, when the proposed settlement affects the terms and conditions of the grievant’s employment, such as a Memorandum of Understanding or a Last Chance Agreement, then the employer must bargain with the Union over its terms.
Importantly, the decision in Williams County Sheriff Office reminds us of one other principle. When engaged in discussion with your employer over grievances or other matters covered by the CBA, the employer cannot unreasonably deny your ability to contact an OPBA director or attorney to discuss the issue. If you are faced with a situation such as this, and you are unsure what to do, please do not hesitate to contact the OPBA for further guidance.
Know Your Rights Concerning Union Representation
Members often tell me in the context of an internal investigation something to the effect that their Employer asked them questions and never offered them Union representation.
While I am sure that this topic has been addressed before, it bears repeating that an Employer is not required to offer an employee Union representation before questioning, unless the collective bargaining agreement specifically mandates that the Employer do so.
Rather, what the law requires in these situations is that the Employer permit the employee to be represented, under certain stated conditions, upon the employee’s request.
Specifically, in In re Davenport, SERB 95-023 (12/29/95) the State Employment Relations Board (“SERB”) adopted the standard set forth by the United States Supreme Court in NLRB v. Weingarten, 420 US 251 (1975), at page 3-156, by stating:
We believe that Weingarten provides the proper balance between the public employees’ rights in ORC §4117.03(A)(2) to engage in concerted activities for mutual aid and protection. Therefore, we specifically find that, upon an employee’s request, representation by an employee organization is required at investigatory interviews which the employee reasonably believes could lead to discipline (the Weingarten standard) and at grievance meetings.
SERB amplified its above finding in Davenport, above, in In re City of Cleveland, SERB 97-011 (6-30-97) when it held that an unfair labor practice, under R.C. §4117.11(A)(1), for the denial of the right to representation is established when the following four elements are proven:
Consequently, absent express contract language requiring the Employer to offer Union representation prior to interrogating an employee in an investigatory interview, the employee must specifically request the presence of a Union representative.
Please contact your OPBA representative anytime that you have any questions about representation issues or any other relevant matters.
 In In re State Employment Relations Board v. State of Ohio, Dept. of Rehab. & Corrections, Ross Correctional Institution, SERB 99-004 (2-12-1999), SERB indicated that “a meeting is investigatory if its purpose is to elicit information pertaining to the conduct of the employee being interviewed.”
 “An employee’s reasonable belief that discipline may be imposed as a result of the interview will be measured by an objective standard: whether a reasonable person would believe that discipline may be imposed on the employee involved as a result of the interview. Id. It is irrelevant that no discipline actually resulted if the employee possesses the requisite reasonable belief that discipline might result.” Ohio Dept. of Rehab. & Corrections, supra, at p. 5 of 7.
Florence v. Board of Chosen Freeholders
I have written a lot of my articles about the economy and wage increases lately. Most everyone is interested in the outlook for wage increases and most of us have been impacted by the recession that started in 2009. In fact, most of us are still being impacted today.
However, I noticed an article recently that many represented by the OPBA might be interested in. It relates to the use of strip searches at jails and other detention facilities based upon the recent ruling by the U. S. Supreme Court in Florence v. Board of Chosen Freeholders, #10-945, 132 S. Ct. 1510, 2012 U.S. Lexis 2712.
In the instant case, the arrest was made due to a bench warrant that was no longer good. He had fallen behind on paying a court fine, but had actually paid it off several years prior to his arrest. He was then strip searched at one prison and transferred to another six days later. He was then strip searched again, which lead to his complaint.
Mr. Florence felt that he should not have had to endure the humiliation of a strip search based upon the charges against him and his good behavior. Both of the prisons had a blanket policy of strip searching any and everybody when they arrive regardless of the charges. This was the focus of the ruling.
Prior to the Florence ruling, a reasonable suspicion standard was the law of the land. There had to be a detailed analysis to prove the need to strip search an inmate.They had to consider such issues as what type of inmates they were housing, what type of offence they were charged with, and how they were behaving.
Four of the Justices felt there should be a reasonable suspicion that the detainee might be in possession of contraband that could be a threat to the safety and/or security of officers in order to conduct a strip search. They felt there were other options available rather than forcing the humiliation associated with strip searches.
Although they did mention that it is difficult and dangerous to work in such environments, they pointed to the seven federal courts that have ruled for a reasonable suspicion standard for strip searches. They also noted that ten states have made the reasonable suspicion standard the law.
The dissenting judges also pointed out that many correction officer organizations believe that in most circumstances strip searches should only be done for reasonable suspicion. They further noted the amount of contraband found during the strip searches was quite small.
Rather than strip searching without reasonable suspicion, they said much more reasonable methods could be just as useful without being so humiliating. Among their suggestions were metal detectors, pat downs, and searching clothing while the detainee is showering.
However, the majority ruled otherwise. They acknowledged the inherit dangers in the Corrections field and the requirement for safety at length. Further, they noted that those in the field understand the risks and dangers much better than anybody else. Therefore, they should be the ones to create proper policies. As such, they gave the administrations a great deal of latitude in the creation of such search policies. In effect, they ruled that the interest in safety and properly running the institution trumped the inmate’s constitutional rights. Of course they also noted that different institutions may not have such rights given the differences in facilities and their populations.
In addition, they pointed out that case law upheld the use of strip searches due to the decrease in the likelihood of carrying contraband into prisons. The amount of contraband actually found wasn’t a major factor in such cases.
New inmates may not even be fully researched when they enter the system. Some may be weekend inmates because they are low risk, but that would make it easier for them to bring contraband into the system on a regular basis.
Furthermore, given the ever changing populations, it creates a large burden to monitor them enough to properly weed out those who should be strip searched. Given the large number of injuries committed with contraband, it doesn’t make sense to create such burdens. Over ten thousand COs are injured annually from inmates, and many more inmates are hurt by each other.
There are also some benefits to the actual inmates being searched. In doing so, illness and infectious diseases can often be noticed. Thus treatment can begin and the rest of the population can safely avoid it. Furthermore, gang symbols are easily detected, which allows officials to place them accordingly.