The Ohio Patrolmen's Benevolent Association (O.P.B.A)

Striving for Perfect Objectivity in the World of Police Promotions

Lately I have been handling several matters involving the issue of promotions, which is unusual.  I do believe however, that there is a sound explanation for the increased frequency of promotion related inquiries that make up my work docket.

Ever since the financial crisis there have been many ranking positions eliminated by many managements.  The ability of managements to “abolish” or otherwise eliminate promoted positions is practically as awesome as all of the most fundamental of management rights.

As many of you have discovered, abolishment of supervisory positions is permissible so long as the employer can demonstrate that its actions are driven by “economy and efficiency”.  Unfortunately for the employee, the ability to successfully appeal an abolishment is difficult to impossible given that such appeals are decided by the civil service commissions that are so intricately linked to the employer.

Undoubtedly over the last 5-7 years the opportunities for promotion in virtually every OPBA police department have become more scarce.  At the same time, as DROP dates began to occur, there has been a steady stream of newly hired patrol officers.

This presents a situation where the number of officers interested and anxious to participate in the promotional process is on the rise while the number of available opportunities is dropping.  This results in a supply/demand imbalance making each opportunity much more precious and valuable than under normal circumstances.

Another explanation, also with roots in the financial crisis, is the money necessarily associated and attached to each promoted position.  Rank differentials guarantee an automatic jump in the promoted employee’s base rate in amounts between 12% and 18%, a very nice and meaningful raise!

Compare the financial lot of a newly promoted employee to that of every other employee who is not promoted.  Over the same 7 year period as previously cited, everyone’s wage growth has been flat at best.  Furthermore, their annual income has been reduced, due to increased employee health care and pension contributions and general inflation.

This presents a situation where about the only way officers can meaningfully boost their standards of living is by getting promoted.  This results in more competition, concern and anxiety over the promotional process.

Most of the promotion related calls I get concern the fairness of the process.  I hear concerns relating to the awarding of extra points, the assessment and grading process and the ability to bargain around civil service issues.  All concerns contain an element suggesting that someone, other than the caller, has gotten an unfair advantage.

Everyone expects that the promotional process is to be perfect.  Everyone wants to believe that the process is designed and administered in a fashion that objectively produces the most qualified candidate.  Over the years though I have concluded that this is simply not possible.

At the time I began representing the OPBA, promotions were governed exclusively by the Ohio Revised Code, Section 124.44 (“Section 124”) and/or each jurisdiction’s local civil service commission rules.  Statutory cities were bound to strictly adhere to Section 124 while “charter” cities could, in certain instances, adopt rules that varied from Section 124.

Section 124 is very simple and quite objective in that it requires a written competitive examination that ultimately results in the establishment of an “eligibility list” of names ranked by the grade on their exam, plus applicable points.  Once that is completed Section 124 requires that the highest ranking name be promoted, henceforth.

Many observers of Section 124’s objective process concluded and commented that its simple procedure did not necessarily produce the best supervisor.  They noted that to obtain good supervision more should be considered than just the person who scores the highest on a written examination.

As a response to this concern charter cities that could stray from Section 124 did so by introducing the “1 in 3” rule.  This permitted the employer to promote any of the names on the list from a grouping of the top 3, thereby doubling the employer’s options beyond just the top test taker.

Using “1 in 3”, though, added an element of subjectivity to the process and with subjectivity comes human nature and the potential for favoritism or bias to be added to the equation.  With “1 in 3” it is entirely possible that one very smart and very capable candidate, who once left a bad impression on someone influential, can go a long time, if not forever,  without being promoted.

Along the way competitive oral assessment components have been added allowing considerations for how a candidate reacts to spontaneous situations.  Assessment centers too add subjectivity to the process because they necessarily involve humans who can either favor someone for reasons other than their qualifications or be tipped to favor someone.

Furthermore, the various providers of the oral assessment component are either companies for profit (ex. PRADCO) or interest based associates (ex. Chiefs of Police Association).  As such they are capable of constructing ambiguous examinations or ambiguously grading them, while incorporating their own biases.  Or they can make mistakes in the process itself that can not be undone.

Several years ago, the Ohio Supreme Court ruled that unions or managements could force each other to bargain over the issues of promotions.  A handful of OPBA units have seized on this ability and have bargained their own promotional process, thereby superseding the applicable civil service law.

While our bargained for promotional processes have narrowed the chances for subjective abuse, they do not guarantee an entirely objective selection.  Again, this is because people are involved and when people make selections they naturally tend to use their own experiences and biases as part of their decision-making process.

In the midst of this unsolvable situation I must provide advice and counsel to a member seeking total fairness.  And mostly they do not like what I have to tell them.

I believe that any decision involving individuals and upward mobility, in terms of money and power, will necessarily entail some measure of subjectivity or bias.  The object of every promotional process is to avoid or minimize this, but in reality it is a challenge to construct a promotional process that is entirely objective.


Collective Bargaining

I’m sure you recall that Ohio wasn’t the only state that tried to trash collective bargaining rights for public employees.  Wisconsin virtually repealed bargaining rights for most of its public employees.  And as I write this, the Wisconsin Supreme Court has upheld the 2011 gutting of the Wisconsin law.

I bring this up because this is the last issue of Police Beat before this November’s election.  Please remember that it was republicans in Columbus, spurred on by a republican governor, who tried to gut YOUR collective bargaining rights.

Please also remember that it was the same republicans in Columbus who balanced the state budget by throwing city and county budgets into chaos.  I am referring to the phasing out of funds the state used to divvy up among the subdivisions and also the elimination of the estate tax.  These two measures made it much more difficult for subdivisions to pull out of the recession.

We have seen five (5) years now with nearly flat wage growth and struggling to avoid concessions, and all the while paying more each year for medical insurance.

And we continue to hear that so –called “right to work” legislation is going to be brought up after the elections this fall.  This is another republican attack on unions and working people that should more accurately be called “right to work for less.”

All these problems can be traced to a single source – a republican ideology that favors the wealthy and screws over everyone else.  The way to solve this is really quite simple – they must be voted out of office.  Remember this in November – vote democrat up and down the ticket.


Two Federal Cases Revisited

Two recent federal court cases caught my eye, so, I thought I would share them.

Each of the cases revisits a topic that I have written to you about previously.

First, on July 16, 2014, the Sixth Circuit Court of Appeals, which is the federal appeals court with jurisdiction in the State of Ohio, reversed a case that had been decided in favor of a Sheriff’s Office employee, in southwestern Ohio, concerning an excessive use of force claim in a county jail.

In this case, which is captioned Cordell v. McKinney, Case No. 13-4203 (6th Cir. 2014); an inmate claimed that he was slammed headfirst into a wall while handcuffed, allegedly in violation of the Eighth Amendment to the U.S. Constitution.

After considering the evidence, the United States District Court for the Southern District of Ohio at Dayton had granted summary judgment in favor of the Deputy Sheriff, finding that: 1. The allegations of excessive force were uncorroborated, 2. The deputy was justified in utilizing the level of force that was exerted, and 3. The deputy was entitled to qualified immunity.

The Sixth Circuit Court of Appeals completely reversed the findings of District Court, after finding that some level of force was appropriate because the prisoner tensed up and turned toward the deputy while being escorted.

However, in determining that a genuine issue of material fact existed as to whether the amount of force utilized was excessive, the court stated, “we conclude that a reasonable jury could find that Deputy McKinney lacked a good-faith reason to use Cordell as a human battering ram.”  The Court based its decision on the severity of the prisoner’s injuries, the threat that the deputy actually faced, in light of the fact that the inmate’s hands were cuffed behind his back and the deputy had him in a submission hold and that the court found no evidence that the deputy made any effort to moderate the level of force that he used.

After reviewing the entire case, however, in my opinion, the case turned on the fact that the inmate was restrained at the time the use of force occurred.

This is illustrated by the Sixth Circuit, at p. 15 of the Opinion, where it states:

We have held in the past that “striking a neutralized suspect who is secured by handcuffs is objectively unreasonable.”  Schreiber v. Moe, 596 F.3d 323, 332 (6th Cir. 2010); see also Burgess v. Fischer, 735 F.3d 462, 474-75 (6th Cir. 2013).  While Cordell admitted turning toward Deputy McKinney, presenting a slightly different factual situation, we doubt that slamming a handcuffed and controlled prisoner headfirst into a concrete wall comports with human decency.  See Burgess, 735 F.2d at 474-75 (citing Phelps v. Coy, 286 F.3d 295, 301 (6th Cir. 2002); McDowell v. Rogers, 863 F.2d 1302, 1307 (6th Cir. 1988)).

As such, it continues to be extremely important to carefully consider the level of force necessary to subdue a subject that is already restrained, as the Sixth Circuit continues to carefully scrutinize these types of cases.

Secondly, on March 26, 2014, the United States, Supreme Court, in U.S. v. Castleman, 134 S Ct. 1405 (2014), considered the issue of what constitutes “the use of physical force” adequate to result in a misdemeanor crime of domestic violence sufficient to trigger the lifetime ban on possession of firearms contained in 18. U.S.C. §922(g)(9).

The case examined the statute’s definition of misdemeanor crime of domestic violence, to wit:

“an offense that… (i) is a misdemeanor under Federal, State or Tribal law; and (ii) has, as an element, the use or attempted use of physical force or the threatened use of a deadly weapon committed by a current or former spouse, parent or guardian of the victim, by a person with whom the victim shares a child in common, by a person that is cohabiting with or has cohabited with the victim as a spouse, parent or guardian, or by a person similarly situated to a spouse, parent or guardian of the victim.”

However, the case turned specifically on the meaning of the phrase “the use . . . of physical force,” in the statute.

The trial court had previously held that the defendant’s conviction did not trigger the federal firearms disability on the theory that the use of physical force, for §922(g)(9) purposes, must entail “violent contact with the victim.”

On appeal, the Sixth Circuit affirmed, but, on other grounds.  It held that the degree of physical force required is the same as that which occurs in the statutory definition of “violent felony,” which requires “violent force.”  Therefore, it found that the defendant’s conviction did not qualify as a misdemeanor crime of domestic violence for the purpose of the federal firearms ban.

The United States Supreme Court reversed by indicating that Section 922(g)(9)’s “physical force” requirement is satisfied “by the degree of force that supports a common-law battery conviction – namely, offensive touching.”  Id. at Syllabus.

Thus, the court found, that defendant’s conviction for having “intentionally or knowingly cause[d] bodily injury to” the mother of his child qualified as a misdemeanor crime of domestic violence sufficient to trigger the firearm ban in the federal statute.

The potential impact of this case cannot be understated for anyone that is required to carry a firearm within the scope of his or her employment.

As always, if you have any questions about these or other issues that may impact your livelihood, please do not hesitate to contact your OPBA representative.


The SERB Wage Increase Breakdown

The economic news we are hearing every day has been much better than what we were hearing during 2009. The economy is still growing in the USA, but not real fast.  Finally, the predictions of a healthy economy are almost here!  Healthy economies tend to provide healthy wage increases.

There are many who have been living in fear that the economy is heading into another recession due to the economy slowing down.   Some point to the housing market as a disappointment.  Others complain that the new jobs are mostly service industry and don’t pay enough. Still others say that there are still too many under employed, those working part-time that want full-time.

All are true to one degree or another.  Most of the jobs have been in the service sector, but not all of them.  In fact Ohio has been improving in manufacturing and business jobs for quite a while.  Further, the people that may have given up on job hunting for a while are starting to come back into the job market with some success.

However, the economy in Ohio is doing better than most of the US and the rest of the world.  At this time the unemployment rate is down to 5.5%, which is about a half point lower than the US as a whole.  The State has a budget surplus of a couple of billion dollars.  They have pretty much taken everything from the local governments that they could, so there is only an upside left.  The demand for specialized workers is still high enough that people are moving to the State to find jobs and are indeed finding them.

The various branches of the government are generally improving economically.  While there are few jurisdictions that are still hurting, most are hiring.  Some are still not replacing those who retire at the local level, but the State is hiring more then enough to offset that.

The State Employment Relations Board (SERB) has released the wage settlement report for 2013.  The economic mess really hit around the last quarter of the 2009.  The negative impact from recession hit the public sector twelve to eighteen months after.  The impact to wage increases was plain to see.  That was by far the worst average wage increase ever recorded by the SERB.

The State wide average increase in wages for 2011 was 0.57%.  In 2006 it was 3.01%. - The average wage increase has decreased every year since then.  The range over the ten years of the survey was 0.57% in 2011 up to 3.59% in 2002.  Since 2011 the wage increases have been going up.  In 2012 they were one (1%) percent and 2013 they were almost one and a half (1.47%) percent.  From what I’m seeing at the table, the trend of increasing wages is continuing.

The Cincinnati region had the largest decrease in wage rate increase in 2011, from the following year of 0.71%, down to 0.49%.  The lowest regional increase award goes to Cincinnati again for 2013 at one point twelve (1.12%) percent.  They are the only one of the regions that saw their rate of wage go down from the last wage survey.  Bad time to be in the south west section of Ohio!

Southeast Ohio had the largest wage rate in 2013 at one point nine (1.90%)..  That was the highest increase in wage rates as well.  However the largest increase from 2012 was in the Akron/Canton area.  They increased by almost three quarters of a percent (0.74%).

Counties were the jurisdiction that had the highest increase in rate of wage increase over 2013.  They had the highest percent for the second year in a row.  School Districts came in the largest increase from 2012 with a point six three (0,63%) percent increase over last year.

Police and Fire tied for the largest increase in unit type with one point six one (1.61%) percent.  Fire did better than any other unit six out of the last ten years.  The teachers found themselves on the bottom of the pack again.  They increased their percent wage increase by an average of one and a quarter (1.23%).

SERB Wage Breakdown