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

Monitoring Risk in a Volatile Market


Determine Your Need for Risk

Many individuals will claim they are adverse to a high level of risk, while others embrace it and feel that a long-term strategy can make up for any short-term losses.  However, it is still prudent to try to mitigate and control risk at all stages in an attempt to manage your long-term returns.  I think "risk" is the most widely misunderstood investment concept. The consequences can be dire—running out of money before you run out of time. My favorite framework for thinking about risk looks at risk in three ways: your willingness, your ability, and your need to take risk.  Most individuals can measure their willingness and ability for risk, but few factor their actual need to take on an appropriate level of risk.

Risk is often defined as the odds of losing money or the chance of getting a return different from that which you expect. Against this backdrop many individuals—understandably—focus on their willingness to endure "risk." Others will focus on their ability to take risk. These investors will ask themselves if, given their age, income or profession, they have enough time, future earnings or job stability to stomach risk.

But the question that I don't hear asked nearly enough is whether or not one needs to take risk. For example, take a 65-year-old retired police officer with an investment portfolio and no debt maintaining an all-equity portfolio.  His living expenses are more than fully covered by his pension, required minimum distributions, and his reduced Social Security benefit. In this case the "need" to take excessive risk is not there even if the willingness is. On the other end of the spectrum is the 22-year-old new hire Patrolman who elects to put his entire 457(b) in a stable or fixed fund. In this case, the willingness to take risk is absent but the need for "risk," in the face of potential long run inflation, would be high.  In both scenarios, they did not consider what their need for risk should be.

Everyone’s comfort level of risk can be different, and the outcome of performance is likely to be affected by that level.  However, with proper diversification and active management of your portfolio, there are ways to control and alleviate your level of risk, while still allowing for potential returns that can meet your long-term goals.  Having a well structured, diversified portfolio is a prudent way to help manage your risk level.  Some people prefer to have professionals manage their account for them, so it takes the emotion out of the decision making. This can help prevent the “panic sell”, which may turn into a “buy high and sell low strategy”.

Potential Returns

So how does the typical investor’s returns compare to some of the major market indices over the past 20 years?  To make it very simple, the S&P 500 averaged 7.8% per year, while the Barclays Capital US Aggregate Bond Index returned 6.5% per year over the same time period. A 50/50 blend of these two asset classes would have yielded a nominal annualized return of 7.2%.

However, the average investor's 20 year annualized return is dismal compared to those figures. According to an analysis by Dalbar, the average investor earned 2.1% over the twenty year period ended Dec. 31, 2011. But wait, it gets even worse.  After including inflation, the average investor actually got a negative real return. Inflation (CPI) grew at an annualized rate of 2.5% during that same period. So the average investors' net real return was -0.4%. The average investor is not very good at capturing the market return of a simple balanced portfolio, never mind outperforming it.

As you can see, many investors make decisions based on “short-term concerns, crowding out longer-term, more rational strategies,”  and are overly influenced by the daily noise about stocks in the media.  By taking emotion out of the equation, you are more likely to benefit from a "Buy low, sell high” strategy.   Note that that phrase does not call for buying at the "lowest" or selling at the "highest," which is, of course, impossible to do on a consistent basis. It simply recommends a process of harvesting those holdings that have done well, and reseeding a portfolio with holdings that have underperformed. This, essentially, is what rebalancing a portfolio is all about: a prudent strategy for managing an investor's overall risk. Most people think that "buying low and selling high" is the magic formula for above-average returns, but in fact it is a strategy for managing portfolio risk and many individuals aren’t able to do this by themselves.

While risk and reward go hand in hand, it's important to think about all three elements of risk—your willingness, ability, and need to take risk—before making investment decisions. If after reviewing your current portfolio or level of risk you have questions, feel free to give us a call.

Lineweaver Financial Group s 9035 Sweet Valley Drive s Valley View, OH 44125 s 216.520.1711

Securities offered through Sigma Financial Corporation. Member FINRA/SIPC.

Lineweaver Financial Group is independently owned and operated.

It is not possible to invest directly in an index. Diversification and asset allocation does not guarantee against loss or ensure a profit. They are methods used to help manage risk.

 

 

 

Public Records


by Kevin Powers, Esq.

 

If you read Ohio’s Public Records Act, R.C. 149.43, you see that it starts out with a  very broad definition of “public record”:  “…ANY record that is kept by ANY public office…”  The statute then goes on to define nearly two dozen exceptions.

One such exception is medical records.  Medical records could include things like the Family Medical Leave paperwork you had to submit in order to be eligible for leave.  It could also include doctors’ notes you are required to submit when using sick leave.

But what if you are sent for a medical or psychological evaluation by your employer who suspects you of being unfit for duty?  Does the doctor’s report in such cases constitute a medical record?  According to Ohio courts, the answer is “no”.  Such records are public records that your employer must disclose to anyone requesting them.

In State ex rel Toledo Blade v. Telb, the newspaper was investigating a Sheriff’s deputy and requested his personnel file.  Based on what was provided the newspaper learned that the Sheriff had sent the deputy for psychological evaluations but the reports from the psychologists had not been disclosed with the Sheriff arguing that they were medical records exempt from disclosure.

The court looked at the statutory definition of medical records as “...any document… that pertains to the medical history, diagnosis prognosis or medical condition of a patient that is generated and maintained in the process of medical treatment.

Here the court reasoned that the psychological reports were not generated in the process of medical treatment and must be disclosed.   While this decision was a common pleas court ruling, it has been cited with approval and followed by higher courts including the Ohio Supreme Court.  See, State ex rel. Strothers v. Wertheim.

In State ex rel. Multimedia v. Snowden the Ohio Supreme Court determined that pre-hire psychological evaluations are public records.   Presumably, the results of pre-hire and fit for-duty medical examinations are available to the public.

So armed with this knowledge what can you do if you are ordered to submit to a medical/psychiatric evaluation?  Most medical doctors would instinctively believe that whatever report they send to the employer would remain confidential.  You should explain to the doctor that such reports are in fact public records and ask that he/she use discretion on what is put into the report.

 

Informational Pickets Freed from the 10 Day Notice Requirement


By:  Jonathan Winters, Allotta & Farley Co. LPA

Although State law prohibits police from striking or engaging in a work stoppage, OPBA members still have the ability to picket their employers.  This type of picketing known as informational picketing allows the OPBA to inform the public of the stance the employer and the OPBA have taken on any particular issue and helps sway public opinion towards the OPBA’s position.  Before a picket can take place SERB has traditionally found that R.C. 4117.11(B)(8) requires that Unions give the employer ten days advance notice of their intent to picket.  This advance notice requirement has allowed the employer to prepare for pickets and shift the conversation in their favor before unions had the chance to speak through its informational pickets.  Recently, however, the Ohio Supreme Court ruled R.C. 4117.11(B)(8), does not apply to informational picketing.

The case, Mahoning Education Association of Developmental Disabilities v. State Employees Relations Board, arose after the union representing the employees of the Mahoning County Board of Developmental Disabilities (MCBDD) peacefully picketed outside a MCBDD board meeting carrying signs urging MCBDD to reach a settlement with the Union over the terms of a new Collective Bargaining Agreement.  The union did not give any notice to the State Employment Relations Board (SERB) or MCBDD that it intended to picket the meeting, and the picket did not involve any work stoppages or strike activity.

In response to the picket, MCBDD filed an unfair labor practice with SERB alleging the union violated R.C. 4117.11(B)(8) when it failed to give notice to MCBDD of its intent to picket the board meeting.  4117.11(B)(8) states that it is an unfair labor practice to “engage in any picketing striking or other concerted refusal to work without giving written notice to the public employer and to the state employment relations board not less than ten days prior to the action.”  After a hearing, SERB determined that the Union had committed an unfair labor practice by failing to give notice of the picket.

The Union appealed SERB’s determination and eventually the case made its way to the Ohio Supreme Court.  There, the high court noted that there are two different types of picketing.  One type of picketing is the type of picketing that is associated with protests during a strike or work stoppage.  The other type is informational picketing.  The latter type of picketing, the Court ruled, involves activity that expresses “ a grievance not associated with a strike or work stoppage.” The Court went on to determine that in enacting R.C. 4117, the legislature only meant for the notice requirement to apply to picketing associated with a work stoppage or strike and not informational picketing.  Accordingly, the Court determined that no unfair labor practice had occurred.

With no advance notice needed for informational pickets, this tool becomes a more useful and fluid way for OPBA members to engage and win support from the public.  Without this restriction the OPBA can shape the conversation and get their information out before employers have the opportunity to turn public opinion in their favor.  OPBA employees may use the removal of this restriction to their advantage during contentious negotiations and/or grievance settlements.

 

Brady v. Maryland


By:  Joe Hegedus, Esq.


Lately, it has come to my attention that, apparently, employees of certain prosecutor’s offices are advising law enforcement employers that there is a mandatory obligation to immediately disclose personnel records of peace officers to defendants in criminal cases.  Depending on the jurisdiction, I have heard this obligation defined in terms that typically appear to be all encompassing.[1]

However, a review of the actual law applicable in cases of this nature, seems to paint a slightly different picture.

The seminal case in this area of the law is Brady v. Maryland, 373 U.S. 83, 87 (1963), where the United States Supreme Court held that:

the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

(Emphasis supplied).

In United States v. Bagley, 473 U.S. 667, 669 (1985), the Court revisited its decision in Brady, supra., by stating:

[1A] In Brady, v. Maryland, 373 U.S. 83, 87 (1963), this Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment.”  The issue in the present case concerns the standard of materiality to be applied in determining whether a conviction should be reversed because the prosecutor failed to disclose requested evidence that could have been used to impeach Government witnesses.

The Court in Bagley then amplified its decision in Brady, supra., as follows:

The holding in Brady v. Maryland requires disclosure only of evidence that is both favorable to the accused and “material either to guilt or to punishment.”  373 U.S., at 87.  See also Moore v. Illinois, 408 U.S. 786, 794-795 (1972).  The Court explained in United States v. Agurs, 427 U.S. 97, 104 (1976):  “A fair analysis of the holding in Brady indicates that implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial.”  The evidence suppressed in Brady would have been admissible only on the issue of punishment and not on the issue of guilt, and therefore could have affected only Brady’s sentence and not his conviction.  Accordingly, the Court affirmed the lower court’s restriction of Brady’s new trial to the issue of punishment.

The Brady rule is based on the requirement of due process.  Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur.  Thus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive that defendant of a fair trial:

“For unless the omission deprived the defendant of a fair trial, there was no constitutional violation requiring that the verdict be set aside; and absent a constitutional violation, there was no breach of the prosecutor’s constitutional duty to disclose. . . .”

“. . . But to reiterate a critical point, the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.”  427 U.S., at 108.

Bagley, at pp. 675, 676, emphasis supplied.

The Bagley Court then further explained that impeachment evidence, as well as exculpatory evidence, both fall within the disclosure requirements of Brady.[2] See Giglio v. United States, 405 U.S. 150, 154 (1972).

The Bagley Court continued by reiterating that regardless of whether the suppressed evidence is exculpatory or utilized for impeachment purposes, it is only subject to disclosure if it is material to guilt or punishment and “[t]he evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.  A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.”  Bagley, supra., at pp. 681-682.

Consequently, as emphasized by the Ohio Supreme Court, “[s]ince Bagley, the “reasonable probability” test has been held to apply in all cases where the defense alleges the prosecution improperly suppressed exculpatory evidence.”  State of Ohio v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988).

For the purposes of this article, then, the question is: do the Brady and Bagley disclosure requirements apply as broadly to disciplinary investigations contained in personnel files as is being demanded by prosecutors in certain jurisdictions?

In my opinion, the answer is probably not.

For example, in United States v. Driscoll, 970 F.2d 1472 (6th Cir. 1992), the Sixth Circuit Court of Appeals considered a case where a defendant challenged his felony convictions, inter alia, on the basis that the Court’s denial of his motion for disclosure of the officers’ personnel files, in an effort to find information that cast doubt on their credibility, violated Brady v. Maryland.

In rejecting this argument, the Court indicated:

Mr. Driscoll offered no support for his contention that personnel files might contain information important to his case.  “The Supreme Court has made clear that the Brady rule is not an evidentiary rule which grants broad discovery powers to a defendant and that ‘there is no general constitutional right to discovery in a criminal case.’”  United States v. Todd, 920 F.2d 399, 405 (6th Cir. 1990) (quoting Weatherford v. Bursey, 429 U.S. 545, 559, 97 S. Ct. 837, 845, 51 L. Ed.3d 30 (1977)).  “The Court also has made it clear that while the Brady rule imposes a general obligation upon the government to disclose evidence that is favorable to the accused and material to guilt or punishment, the government typically is the sole judge of what evidence in its possession is subject to disclosure.”  United States. v. Presser, 844 F.2d 1275, 1281 (6th Cir. 1988).  Furthermore, “the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.”  United States v. Agurs, 427 U.S. 97, 108, 96 S. Ct. 2392, 2399-2400, 49 L. Ed. 2d 342 (1976).

In light of these principles, we agree with United States v. Andrus, 775 F.2d 825 (7th Cir. 1985)., in which the Seventh Circuit rejected a defendant’s argument that he should have had access to material from testifying officers’ personnel files that might have been used for impeaching them.

“Mere speculation that a government file may contain Brady material is not sufficient to require a remand for in camera inspection, much less reversal for a new trial.  A due process standard which is satisfied by mere speculation would convert Brady into a discovery device and impose an undue burden upon the district court.”

Sometime later, the United States District Court for the Southern District of Ohio considered a similar request by a defendant, in a discovery motion, which sought to generally examine employment information of all testifying witnesses.  In denying the motion, the court relied on Driscoll, supra., by stating:

With Item 8F, Defendant does not ask for the disclosure of any particular information; rather, he requests that the Government examine the personnel files of all its testifying witnesses, including law enforcement officers, to ascertain whether those files contain any evidence of perjurious conduct, dishonesty or any other material that is relevant to impeachment.  The Court will decline to order the Government to conduct the requested examination of personnel files.  Although the Ninth Circuit has held that the Government has an obligation to examine the personnel files of testifying law enforcement officials in order to comply with its obligations under Brady, see United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991), the Sixth Circuit implicitly rejected Henthorn in Driscoll, supra.  Therein, the Sixth Circuit concluded that, under Brady, the Government was not obligated to produce personnel files of its testifying agents, based solely upon the defendant’s speculation that those files might contain impeaching information.  In support of that conclusion, the Sixth Circuit relied, inter alia, upon United States v. Andrus, 775 F.2d 825 (7th Cir. 1985), wherein the Seventh Circuit concluded that the defendant’s speculation that personnel files might contain impeaching information did not impose upon the District Court the obligation of conducting an in camera review of those files, since Brady was not a discovery device.  The dissenting opinion in Driscoll argued that the Sixth Circuit should decline to follow the Seventh Circuit’s decision in Andrus and should adopt the approach of the Ninth Circuit in Henthorn, a case which was described by the dissent as being “on all fours.”  970 F.2d at 1489.  The fact that this Court will not require the Government to conduct a review of the personnel files of its testifying witnesses does not, however, relieve it of its obligation under Brady of disclosing impeachment material of which it becomes aware, including any such material contained in the personnel files.

United States v. Floyd, 247 F.Supp.2d 889, 901 (S.D. Ohio, 2002).

More recently, another District Court, within the Sixth Circuit, followed Driscoll by reiterating that “a speculative, nonspecific claim that an officer’s personnel file might contain material helpful to the defendant is not sufficient to entitle the defendant to the officer’s file. . .”

United States v. Johnson, 2010 U.S. Dist. Lexis 94513 (W. D. Tenn. 2010).  See also People of the State of Michigan v. Rawls, 2007 Mich. App. Lexis 760 (Court of Appeals of Mich. 2007).

Finally, in State of Ohio v. Widmer, 2013-Ohio-62; 2013 Ohio App. Lexis 44 (12th App. Dist. 2013) the Ohio Court of Appeals for Warren County considered a claim by a defendant that the prosecution violated Brady v. Maryland by not disclosing an administrative investigative report that indicated that one of the investigating police officers had allegedly lied about some of his credentials, listed in an employment application and resume’ letter, more than ten years prior to the relevant murder investigation.

After a comprehensive review of Brady and its progeny the Widmer Court observed:

It is one thing to require prosecutors to inquire into whether the police have discovered exculpatory or impeachment evidence during the course of the investigation.  It is quite another to require them, “on pain of possible retrial, to conduct disciplinary inquiries into the general conduct of every officer working the case.”  Robinson, 627 F.3d at 952.  Here, Braley’s alleged misconduct is so unrelated to his role in the investigation and to the state’s case against Widmer, that it is difficult to burden the prosecution with an obligation to discover this evidence.

(Id., 2013 Ohio App. Lexis 44 at p. 54).

Further, the Widmer Court explained that “cross-examining Braley on the employment applications and the other information in the DD&M report would have only created a dispute about purely collateral matters, i.e., whether Braley fabricated various credentials over ten years ago for jobs unrelated to his position as lieutenant detective.  Braley was not on trial for fraud or misconduct, Widmer was on trial for murder, and examining this part of Braley’s past would only lead to surprise, jury confusion and a waste of time, which are the very reasons for the rule against impeachment on collateral matters.”  Id. at p. 47.

The Widmer Court then denied the defendant’s claim that a Brady violation occurred by concluding:

After a thorough review of the record below, we find that even if the allegedly suppressed evidence in the DD&M report could have helped the defense to cast some doubt on the police investigation under Kyles, it is not enough to establish materiality.  Id. at 109-110 (“[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense”).

Moreover, the suppressed information was not material impeachment evidence.  See Id. at 676-677; United States v. Jones, 399 F.3d 640, 648 (6th Cir. 2005).  Generally, impeachment evidence constitutes Brady material when the evidence relates directly to a key witness’s veracity on matters about which he or she has testified at trial.  See Giglio, 405 U.S. at 154.   However, as we discussed earlier, Braley was not a key witness, and the allegedly suppressed evidence pertained only to collateral matters that had nothing to do with Braley’s trial testimony.  See, e.g., People v. Fernandez, 249 A.D.2d 3, 5, 670 N.Y.S.2d 840 (1998) (“where the impeachment information has no bearing on defendant’s guilt or innocence, such as where the prosecution witness’s misconduct is completely unrelated to the trial at which he is testifying and [his] testimony is not crucial to the prosecution’s case, its nondisclosure does not constitute a Brady violation”).  Even if the new evidence was severely impeaching, the fact remains that Braley’s credibility was not determinative of Widmer’s guilt or innocence.  Instead, Braley’s testimony was simply cumulative to the considerable evidence bearing on Widmer’s guilt, and there is no reasonable probability that impeaching Braley would have resulted in a different outcome.  See Evid.R. 608(B); Agurs, 427 U.S. at 112; Jones, 399 F.3d at 648.

In sum, under the Brady line of cases, the prosecution has an obligation to disclose personnel information that could be utilized for impeachment purposes only if that information is material to the defendant’s guilt or level of punishment.  Moreover, materiality in the Brady sense requires disclosure, “if there is a reasonable probability that had the evidence been disclosed to the defense the result of the proceeding would have been different.”  Bagley, 473 U.S. at 682.  Thus, the burden of disclosure of evidence contained in personnel files, for impeachment purposes, under Brady, may not be as far-reaching as some prosecutors seem to believe.


[1] This purported obligation to disclose personnel records has been described to me, at times, in the broadest possible terms.  However, the information actually required to be disclosed concerns only information that is material to guilt or punishment.  Notwithstanding that, I have been told that some prosecutors are requiring that all disciplinary records be provided on an ongoing basis.

[2] It appears to me that this explanation of Brady, to include evidence that may be utilized to impeach a prosecution witness, is the genesis of the perceived obligation to disclose disciplinary records of law enforcement officers, especially if the investigation resulted in a finding of dishonesty.